the land or thing in variance so it is Maintenance to take part in any quarrell depending in suit in the Kings court or to worke any fraud whereby iustice may be hindered Westm 1. 3. E. 1. 28. as it appeareth by the statute of West 1. whereby it is ordained That if any Clerke of the kings or of any Iustice The penalty for maintaining of suits do receiue the presentment of any Church for the which any plea or debate is in the K. Court without the kings speciall licence he shal loose the Church and his seruice And if any Iustices or Shirifes Clerke take part in any quarrell depending in the Kings Court or doe worke any fraud whereby common right may be delayed or disturbed he shall loose his seruice and be further punished if the Trespas doe require St. 32. H. 8. 9 And after by a statute made Anno 32. H. 8. there was a greater penalty imposed vpon those who shall be maintainors of suits By which statute it was ordained That no person or persons whatsoeuer shall vnlawfully maintaine or cause or procure any vnlawfull maintenance in any action suit demaund or complaint in any of the Kings Courts of the Chauncerie Starre-chamber White hall or elsewhere within any of the K. dominions of England or Wales or the marches of the same where any person or persons haue authoritie by vertue of the K. Commission Patent or Writ to hold plea of lands or to heare examine or determine any title of lands or any matter of witnesse concerning the title right or interest of any lands tenements or hereditaments Or shall vnlawfully retaine for maintenance of any suit or plea Retaining for maintenance or imbracing or suborning of Iurors any person or persons or embrace any fréeholders or Iurors or suborne any witnesse by letters rewards promise or by any other sinister labour or meanes for to maintaine any matter or cause or to the disturbance or hinderance of iustice or to the procurement or occasion of any manner of Periurie by false verdict or otherwise in any of the Courts aforesaid vpon paine of forfeiture for euery such offence x. pounds to the king and Inf. to be recouered by him that will sue for the same in any of the kings Courts of Record by Action of Debt Bill Plaint or Information wherein no W.E.P. c. if the suit be commenced in any of the kings Courts within one yeare next after any such offence committed or els not 10 As it is Maintenance to haue by agréement part of the land in variance or part of the gaines of the suit in question so is it Maintenance to buy a pretenced right or title of another of or to lands or tenements whereof the seller hath no possession for this oft times the cause of Subornation of witnesses procurement of Periurie and of the subuersion of iustice For the redresse whereof by the last specified Statute of Anno 32. H. 8. St. 32. H. 8. 9 it was first enacted That all Statutes heretofore made concerning Maintenance Champertie and Embracerie or any of them then standing in force should be put in due execution according to the effects of the same And also by the same statute it was ouer that ordayned Maintenance by buying of pretēced titles That no person or persons of what estate degrée or condition soeuer he or they be shall bargaine buy or sell or by any meanes obtaine get or haue any pretenced rights or titles or take promise graunt or couenant to haue any right or title of any person or persons in or to any Manors Lands Tenements or other Hereditaments but if such person or persons which shall so bargaine giue graunt couenant or promise the same their auncestors or they by whom he or they claime the same haue béene in possession of the same or of the reuersion or remainder thereof or taken the rents or profites thereof by the space of one whole yeare next before the said bargaine couenant graunt or promise made vpon paine that he that shall make any such bargaine sale promise couenant or graunt shall forfeit the whole value of the Lands Tenements or Hereditaments so bargained sold promised couenanted or graunted contrary to the forme of this Act. And the buyer or taker thereof knowing the same shall also forfeit the said value of the said Landes Tenements or Hereditaments so by him bought or taken as is aforesaid the one halfe of the said forfeitures to be to the king and the other halfe to the party that will sue for the same in any of the kings Courts of Record by Action of Debt Bill P. or I. c. wherein no W. E. P. or I. c. if the suit be commenced by A. B. P. or I. in any of the kings Courts within one yeare next after any such offence committed or els not Prouided alwayes The possessor purchaseth a pretenced title That it shall be lawfull to any person or persons being in lawfull possession by taking of the yearely ferme rents or profites of any Manors Lands Tenements or Hereditaments to buy obtaine get or haue by any reasonable meanes the pretended right or title of any other person or persons to be made to of or in any such lands tenements or hereditaments whereof he shal be so in lawfull possession Any thing in this Act c. notwithstanding 22 23. El. Dyer 374. 6. Ed. 6. Dy. 74. Plow Com̄ 87. 11 If a man take a lease or promise a lease for the terme of certain yéeres to another of land contrary to the foresaid statute of Ann̄ 32. H. 8. What is selling of a pretenced title viz. of those lands whereof neither he himselfe nor any of his auncestors nor any by whō he doth clayme the same land haue béene in possession of the same nor of the reuersion nor remainder thereof nor taken the rents or profits thereof by the space of one whole yeare before the said bargaine graunt and demise made he is within the danger of the foresaid statute of Anno 32. H. 8. as well as if hée had made an estate for the terme of life in taile or in fée simple of the same lād for that the scope and effect of the statute is vtterly to root out of Maintenance and bargaines and promises of Titles for the which the words of the statute be That no person shall sell or buy any pretenced rights or titles And a lease is no more lawfull for one yeare then for an hundred yeares and some man will be as ready to maintaine to haue a lease for yeares as to haue a greater estate Wherefore he that doth make a lease for yeares or make promise of a lease for yeares of lands whereof he hath but a pretenced right or title shall forfeit to the King and him that will sue the whole value of the inheritance of the land as well as if he had bargained and sold the fée simple thereof But
it is specially to bée respected in that case that he hath but a pretenced right or title at the time of his Lease made for if he hath a good title in the same land at the time of the said Lease then is he not within the danger of the said Statute though neither hée himselfe nor any of his auncestors nor any by whom he doth clayme the same land haue béene in possession thereof nor of the reuersion or remainder thereof nor haue taken the rents or profites thereof by the space of one whole yeare before the said Lease made For if a man doe enter into lands that be holden of him for an alienation in Mortmaine Or if hée doe recouer lands by a reall action hée may sell the same land or make a Lease of the same land within a yeare after the Entry or Recouerie though neyther hée nor his auncestors nor they by whom hee claymeth the same land haue béene in possession thereof nor taken the Rents or Profites thereof by the space of one whole yeare before Br. Maint 38 6. E. 6. And so it is if a man doe morgage his Land for diuers yeares vpon condition of repayment of money at a certaine day or vpon any other condition If after hée doe redéeme his Land hée may sell it or Lease it within one yeare after though he hath not béene in possession thereof nor taken the Rents or Profites thereof by the space of many yeares before For the meaning of the Statute is not to restraine the bargaining buying or selling of good and cleare Rights but of pretended Righs and Titles And this pretenced Right or Title is What is a pretenced title when one man is in possession of Lands or Tenements and another man who is out of possession of them doth clayme them or doth sue for them for hée is not aptly sayd to haue title to land who is in possession of the same And therefore if he that is out of possession of land doth bargaine sell or make any Agréement Couenant or Promise to depart from the same land or to make any assurance thereof after hée shall recouer the said Land hee is within the danger of the said Statute whether he hath a good title to the same land or not And so it is if one who hath a pretenced Right or Title to copyhold Lands doth bargaine and sell it to another Co. lib. 4. 26 he is within the compasse and danger of the foresaid statute of Anno 32. H. 8. For the words of the statute be If any doe bargaine buy or sell c. any right or title in or to any lands or ténements So that those words any right or title doe extend to all manner of rights or titles and consequently to copyhold lands And séeing a great part of the land of the Realme is graunted by copie Therefore the meaning of the makers of the said Statute of Anno 32. H. 8. was to include them for the auoiding of Suits Maintenance and Champertie and not to leaue all copyhold estates to the mischiefes mentioned in the preamble of the sayd Act. Maintenance by giving of Liueries and retaining 12 Giuing of Liueries Badges Signes and Tokens and retayning of vnnecessarie seruants is an euill budde springing out of the foresayd Branch of Maintenance being put in practise by men of great countenance authoritie and estate and it hath béene from age to age accounted a meane to stirre vp quarrels to boulster Suites to procure Periurie and to subuert iustice And therefore the chiefe Gouernours of this Realme haue endeuoured by many Acts of Parliament to represse or snibbe it as by the Statute of Anno 1. R. 2. 7. Hen. 4. it was ordained St. 1. R. 2. 7. 7. H. 4. 14. That if any person shall giue any Chaperons Hats or such like Liueries to any man for maintenance of quarrels or other confederacies he shall forfeit an hundred shillings for euery such Liuerie and he which receiueth such Liuerie shall forfeit fortie shillings And by the statute of 8. H. 6. it was enacted Sta. 8. H. 6. 4 That if any person of his owne authoritie and proper costs doe buy or weare for his clothing any Clothes or Hats called Liueries of the sort or suit of any Lord Ladie Knight Esquire or other person to haue supportation succour or maintenance in any quarrell or in any other matter and being therof lawfully conuict he shall forfeit fortie shillings and be one yeare imprisoned And by the statute of Anno 1. H. 4. it was prouided St. 1. H. 4. 7. That if any which is a Knight or Esquire meniall of the Kings or who is of his retinue to whom his Maiestie shall giue his honourable Liuerie doe weare his said Liuery in the countrey or Countie where he is resiant or dwelling or in any other place of the Realme out of the Kings presence sauing in going or comming from the Kings house and is thereof duly attainted he shall loose his Liuerie and forfeit his fées for euer And by the statute of Anno 8. Ed. 4. it was established Sta. 8. E. 4. 2. Sta. 1. H. 4. 7. That no person by himselfe or any other for him shall giue any Liuerie or Badge or retaine any person other then his meniall Seruant Officer or learned man in the one Law or in the other by any writing oath or promise And if any doe the contrary hee shall forfeit for euery such Liuerie or Badge giuen an hundred shillings And he which doth retaine or take of any other such oath writing or promise or is retained by Indenture shall forfeit an hundred shillings for euery moneth that any person is so retayned with him by Oath Writing Indenture or Promise And euery person which is retained by Writing Indenture Oath or Promise for euery moneth that he is so retained shall forfeit an hundred shillings But this act shal not extend or be preiudiciall to any Gift Graunt or Confirmation made of any Fée Annuity Pention Rent Lands or Tenements by the King or any others to any person or persons for their counsell giuen or to be giuen or for their lawfull seruice done or to be done and for no other vnlawfull cause or vnlawfull intent although the person to whom such gift graunt or confirmation is made be not learned in the one law or the other Neither doth it extend to any libertie giuen at the Kings or Quéenes coronation or at the instalment of any Archbishop or Bishop or erection creation or mariage of any Lord or Lady of estate or at the creation of any Knights of the Bathe or at the commencement of any clerke in an Vniuersitie or at the creation of Serieants of the law or giuen by any Fraternitie Guild or Mysterie corporat or by the Maior Sherife or other chiefe Officer of any Citie Borough Towne or Port of this Realm of England for the time being during that time for the executing
same in a writ of Maintenance brought against him but he cannot retaine or intreat a man learned in the law to be of counsell with the principall partie nor meddle further in that cause than to sée the mainprise performed and himselfe discharged Maintenance in respect of his interest in the land 24 Euerie person that hath any interest in land may meddle and maintain him who is impleaded for the same land and not bee punished therefore in a writ of Maintenance As if tenant for terme of life or in taile of land bée impleaded for the same land or any part thereof Bro. Maint 53. he in the reuersion or remainder thereof may at his owne charges maintaine him in that suit for the safegard of his owne estate for it is in a sort his owne case and the defence of it is to his owne benefit and the euiction to his owne disheritance But this maintenance must be after tenant for terme of life hath atturned vnto him in the reuersion for i◠he maintaine the suit before it is punishable in him 9. H. 6. 64. And so it is if a man being seised of land hath issue a daughter who is maried to another if the father in law be impleaded of that land in a reall action the sonne in law may maintaine him at his owne charges for that by possibilitie that land may after the decease of his father in law descend to his wife and so come to him in her right But if the daughter dye without issue of her bodie begotten by the said husband before the said suit commenced 14. H. 7. 2. 6. E. 4. 5. 19. E. 4. 3. then the sonne in law cannot maintaine the father in law in that suit Neither can hee maintaine him during the life of his wife if an action of Debt couenant account or any other personall action be brought against him for he is neither to take benefit or losse by any of those suits 6. E. 4. 2. 39. H. 6. 20. And if a man seised of land make a lease for certaine yeares of the same and after a suit is commenced betwéene the said lessée for yeares and a stranger touching the same land or any part thereof the lessor may giue euidence for the lessée vpon the triall of the cause in question or otherwise may maintaine him in that suit at his owne charges for it tendeth to his owne priuat benefit or losse And in some case a man may maintaine a suit lawfully though he be neither heire to the land nor in possession reuersion Maintenance in respect of his possibilitie or remainder thereof As if a man being seised of land 9. H. 6. 64. doe make a lease thereof to another for the terme of the life of the lessee and after doth grant to a straunger that if the said tenant for terme of life doe dye during the same lessors life that then the same stranger shall haue and enioy the same land for the terme of xx yeares after the death of the same tenant for life if in this case the tenant for life be impleaded for this land the same stranger may maintaine him for the sauing of his owne estate for yeares and yet he hath no certaintie but a possibilitie of a terme for yeares which peraduenture will neuer chance And likewise in some other case a man may maintaine a suit lawfully though he be neither in possession reuersion remainder or possibilitie of the thing in question Maintenance in respect of his warranty As if a man be seised of a rent going out of another persons land 11. H. 6. 49. to him and to his heires and by his déed doth graunt the same to another and to his heirs with clause of warrantie and the tenant of the land out of the which this rent is issuing doth atturne to the grauntée of this rent if after the grauntée be impleaded of this rent vpon tryall of the issue the grantor may come into the Court and shew to the Iurors such euidence as he hath to prooue the title of this rent and it is lawfull maintenance and not punishable in him though he was neither called into the Court by voucher to warrantie or by Warrantia Chartae And so might he haue done if he had beene called to warrantie by any of the meanes aforesaid vpon a warrantie made of land or rent for it is to preserue himselfe out of daunger and from recompencing in value of that whereof before he had made warrantie 25 As it is in lands and leases so is it in rents goods and debts Maintenance in respect of his rent for euerie person that hath interest in them may meddle and maintaine and defend him who is impleaded or prosecuted by suit or doth implead or prosecute by suit any other for any matter or cause concerning him or whereupon hee doth depend so that the same suit doth tend to impeach preiudice or trouble his estate therein or may redound to his benefit or profit or may be a meane thereof 9. H. 6. 64. As if a man haue a rent charge in fée out of certaine lands and another man hath in custodie a boxe of writings concerning the same rent and after hée that hath the rent doth graunt it to a stranger and his heires to the which graunt the tenant of the land charged doth atturne and moreouer the grantor of that rent charge doth graunt to the assignee of the same that if he can recouer the same boxe of writings that then the same assignee shall haue them If after this graunt the grauntor doth pursue a writ of Detinue against him that hath the custodie of this boxe of writings he to whom the same rēt charge was graunted may lawfully maintaine him in that suit for that by promise he is to haue the same boxe of writings if it be recouered for the preseruation of his estate in the said rent charge 11. H. 6. 47. And a Lord may maintaine his tenant if he be impleaded for his freehold A Lord may maintaine his tenant in respect of his rent and seruices that he is to receiue and haue of him And so it was before the Statute of Vses made anno 27. H. 8. if a man had made a feoffement of land to others to his owne vse the feoffor might maintaine the freehold tenant which held of his feoffees in respect of the vse which he hath in the rent and seruice of that tenant 15. H. 7. 2. 26 And the same law is touching debt As if A. do owe vnto B. xx l. and C. doe owe to A. xx l. due by Obligation Maintenance in respect of debt and A. will deliuer vnto B. the same Obligation in satisfaction of the xx l. which he doth owe him In this case B. may sue an Action of Debt vpon this Obligation against C. in the name of A. and retaine an Attourney and learned counsell and pursue and
That all recoueries to be had or prosecuted by agreement of the parties Recoueries against particular tenants by Couin to defraud him in the reuertion or by Couin against any tenants by the Curtesie of England Tenants in taile after possibilitie of issue extinct or otherwise onely for the terme of life or liues or of estates determinable vpon life or liues of any lands Tenements or hereditaments whereof the same particular Tenant is or shal be seised of any such particular estate as is aforesaid or against any other with Voucher ouer of any such particular Tenant or of any hauing or that had right or title to any such particular estate or tenancie as is aforesaid shal as against such person or persons to whom any reuersion or remainder thereof by force of any Conueyance or deuise before that time had or made shall ought or lawfully may appertaine and against their heyres and successors be vtterly voide Prouided alwaies that this Act shall not extend to any person or persons that shall by good title recouer any lands tenemēts or hereditaments without fraud or Couin by reason of any former right or title But al euery such recouerie and recoueries vpon former rights and titles shall stand and be in like force as they were before the making of this Acte And in all and euerie recouerie and recoueries to be had or prosecuted of any lands tenements or hereditaments by the assent and agreement of any person or persons to whom any reuersion or remainder thereof then shall or ought to appertaine so that the same assent and agréement doe appeare of record in any of the Kings Courts shall stand in like strength and of like effect against such person and persons that shal so assent and agree their heyres successors as they were before the making of this act 27 And for that Couin and fraud should be restrained and punished when it shall be put in practise or intended by those in reuersion to defeate their Lessees of their termes for yeares as it was by the aforesaid Statutes when it was executed by particular Tenants to the preiudice or disheritance of them in the Reuersion Couin by him in the reuersion to defeate his Lessee for yeeres Therefore by a Statute made Anno 21. H. 8. Stat. 21. H. 8. 15 Stat. 6. E. 1. 11. it was enacted That if any persons doe make leases of their lands tenements or other hereditaments by Indentures or without writing to other persons for terme of yeares if after the same Lessors their heires or assignes do cause or suffer recoueries to be had against them in the Kings or any other Lordes Court vpon fained and vntrue title by craft and Couin to put the said Termors from their Termes all such Termor shall and may falsifie for his terme only such recouerie in such wise and forme as a tenant of fréehold shall may doe by the course of the cōmon law where such tenant was neither priuie nor party to such recouerie And the same Termors their Executors assignees notwithstanding such recouerie so had shall enioy retaine and hold their said termes according to their said leases against all such recouerors their heyres and assignees And the said recouerers their heyres and assignees after such recouerie so had shal haue like remedy against the said termors their Executors and assignees by auowrie or action of debt for the rents and seruices reserued vpon the same leases being due after the same recoueries also like actions against them for waste done after the same recoueries so had in like manner and forme as the said Lessors should or might haue had if the same recoueries had neuer beene had No manner of Statute of the Staple Couin to auoide a Statute or recognisance statute marchant nor execution by Elegit shal be auoided by meanes of any such feyned recouerie but all persons hauing any lands tenements or other hereditaments in execution or being intituled to haue execution of any lands or tenements by any such meanes shal haue like remedie to auoide and falsifie the same recouerie as before is prouided for the lessee for terme of yeares 28 There haue beene many lawes and Statutes deuised from age to age to restraine and punish seueral sorts of deceits Couins collusions and frauds but most to encounter and checke fraudulent deeds cōtriued of malice or guile to defeate Stat. 50 Ed. 3. 6. 1. R. 2. 9. 2. R. 2. 3. 3. H. 7. 4. 13. El. 5. 27. El. 4. delay or hinder others of their lands leases goods cattels debts c. as it appeareth by the statute made A. 50. Ed. 3. 1. R. 2. 2. R. 2. 3. H. 7. 13. El. 27. El. But as deceit and fraud increased in this realme so new penalties and greater punishments were inuented from time to time to inflict vpon the transgressors therin And because fained couenous and fraudulent Feoffmēts gifts graunts alienations conueyances bonds sutes iudgements executions of lands and tenements goods and cattels being deuised of Couin guile to defraud creditors and others of their iust and lawful actions dets c. be not only to the let of the due course and execution of law iustice but also to the ouerthrow of all true and plaine dealing bargaining and cheuisance betweene man and man without the which no common weale or ciuill societie can bee maintained or continued Therefore by a Statute made A. 13. El. it was enacted Stat. 13. El. 5 Stat 29. El. 5. That all and euery Feoffment gift graunt bargaine alienation Fraudulent deeds to auoide other mens debts and duties and conueyaunce of lands tenements hereditaments goods cattels or of any of them or of any lease rent common or other profite or charge out of the same lands hereditaments goods c. or any of them by writing or otherwise And all and euery bond sute iudgement and execution at any time had or made sithence the beginning of Queen Elizabeths raigne or at any time hereafter to be had or made which haue beene and are deuised contriued of malice fraud couin collusion or guile to the intent c. to delay hinder or defraud creditors others of their iust lawfull actions sutes debts accompts damages penalties forfeitures hariots mortuaries or reliefes shal be taken deemed onely as against that person his heires executors successors or assignes whose actions sutes debts accoūts c. by such guileful couenous or fraudulēt deeds deuises practises as is aforesaid are shall or mought be in any wise disturbed hindered delaied or defrauded to be cléerly void of none effect any colour fayned cōsideration expressing of vse or any other matter to the cōtrary notwtstanding And al euery the parties to such fained or fraudulēt feoffment gift graunt alienation bargaine conueyance bond sute iudgement execution Parties to fraudulent deedes c. or being priuie and knowing of the same or any of them which
and euery the heire and heires of all and euery the offendor and offendors in any the cases aforesaid and all and euery person and persons 1. M. 12. bodies politicke and corporat their heires successors and executors and euery of them other than such person and persons onely as shall be attainted conuicted and outlawed of any the foresaid offences of felonie shall haue hold enioy all such right title entrie interest leases possessions rents conditions profits and aduaÌ„tages as they or any of them shall or of right ought to haue in or to any mannors lands rents reuersions seruices or hereditaments whatsoeuer or in or to any part thereof in as large manner to all intents as if such attainder had neuer beene had any thing in this act c. notwithstanding c. Sauing to euery person and persons bodies politicke and corporate and their successors their liberties and franchises in such maner as if this act had neuer beene made Procuring others to offend 46 If any person or persons doe moue stirre 1. M. 12. or procure any person or persons to commit any of the offences in this Act specified then euery such person and persons which shall procure stirre or mooue any person or persons so to offend shall suffer such punishment by imprisonmeÌ„t without baile or mainprise as is before expressed in this Act against counsellors of such offendors Vnlawful assemblies by xl or aboue 47 If any persons to the number of fourtie or more 1. M. 12. shall assemble together in forcible manner vnlawfully and of their owne authoritie to the intent to execute doe or put in vre any of the things aboue specified or to doe any other felonious or rebellious act or acts and so shall continue together by the space of three houres after proclamation shall bee made at or nigh the place where they shall be so assembled or in some market towne thereunto next adioyning and after notice to them giuen thereof Then euery person so willingly assembled in forcible manner and so continuing together by the space of three houres after such proclamation made and notice thereof giuen shall bée adiudged a felon A lieutenant shall not appoint a deputie 48 No lieutenant that shall bee made by authoritie or colour of this Act 1. M. 12. or for to execute this Act shall constitute vnder him or in his place any deputy nor shall call or appoint to appeare before him by the onely authoritie of lieutenancie or of commission of lieutenancy any person for any cause or matter whatsoeuer saue onely for the causes and matters expressed in this Acte and for none other Aiding of the offendors after the offence 49 No person or persons shall bee put to any losse forfeiture paine 1. M. 12. or punishment of life land or goods as accessorie to any person or persons that shall commit any of the offences contained in this act for receiuing comforting or aiding of any such offendor after such act committed or done 1. M. 12. 50 No attainder or conuiction of any person or persons The attainder of those offences no corruption of blood for any offence or offences herein contained shall be any corruption of blood betwixt the offendor and any of his auncestors or such person or persons as should haue beene heire to such offendor if no such attainder or conuiction had béene had sauing to euery person and persons bodies politicke and corporat c. their liberties and franâ—â—â—ses in such manner as if this Act had neuer beene made ⧠Of Force forcible Entries and forcible retayning of possessions Vnlawfull force an enemy to peace 1 FOrce and violence executed without warrant of Law be so méere contrarie to the peace and justice of the Realme as disobedience is to loyaltie and contempt to gouernment for whosoeuer doth make a Forcible entrie into lands in the possession of an other doth secretly reuolue in his mind and distrust to himselfe that there is no Law in the Realme to redresse his wrong or no ministers to execute the same and therefore he will sit in iudgement of that cause himselfe and take into his owne hands the distribution of justice and assume into his possession by the strength of his arme what the phantasie of his head shall resolue to be his due whereas the Law in conuenient time would truely satisfie him whether the land in question by the rules of justice be his or not and also assigne him a milde and calme course to recouer all his whole dutie with valuable damages for the time he is iniured And because this force and forcible entrie into lands is so opposite and méere repugnant to the peace and justice of the Realme and tendeth so much to the dishonour of the King and his Crowne and the discredit of the Law that any person by byrth and oath deuoted to the obedience of the King and his Lawes should presume of his owne authoritie by force and strong hand to resist them both and as it were in contempt of them violently to intrude himselfe into an other mans possession before the law hath decided his title therein Therefore the wisedome of the Realme hath by the space of many generations first prouided to restraine those forces and forcible Entries and next to inflict condigne punishment vpon them which were offendors therein Whereupon by a Statute made AnÌ„ 5. There shal be no forcible entry into lands R. 2. the King defended St. 5. R. 2. 7. that none from thenceforth should make any Entrie into any lands and tenements but in case where entrie is giuen by the Law and then not with strong hand nor with multitude of people but only in a peaceble course maner And if any from henceforth do the contrary and thereof be duely conuict he shall be punished by imprysonment of his bodie and thereof ransomed at the Kings pleasure 2 But for that the said Statute of 5. R. 2. did giue no spéedie remedie to those which were expelled out of their lands or tenements nor assigned any speciall persons to suppresse the said disorder Therefore by an other Statute made AnÌ„ 15. St. 15. R. 2. 2 R. 2. it was further ordained The penaltie of forcible entrie into lands or benefices That when any such forcible entrie shall be made into lands or tenements or into any Benefices or offices of the Church and the complaint thereof come to the Iustices of the peace or any of them that the same Iustices or Iustice take sufficient power of the County and go to the place where such forcible entrie is made if he or they find any that holdeth such place forcible after such entrie made they shall be taken and put into the Gaole there to abide conuict by the record of the same Iustices or Iustice vntill they haue made fine and ransom to the King And all they of the Countie aswell the Shirife as other
30. St. 18. El. 13. an 18. El. it was established That euery such person which shal be Atturney for any other person or persons being demandant or plaintife tenāt or defendāt in any actiō or suit cōmenced in any of the K. courts of record at West plead to an issue in the same shal deliuer or cause to be deliuered his lawfull warrant of Atturney to be entred of record for euery of the said actions or suits wherin he is named an Atturney to the officer or his deputy ordained for the receit or entring therof in the same terme whē the issue is entred of record in the said court or before vpon paine of forf of x. l. for euery default for not deliuery of the said warrāt the one moity to the K. his heirs successors the other to such officer to whō or in whose office the same warrāt shold be deliuered entred or filed to be rec by A. of det B. P. or I. wherin no W. E. P. c. also he shal suffer such imprisonmēt as by the discretiō of the I. of the Court where any such default shall be made shall be thought good Fit N. B. 9 6 If a man make an Atturney in a real action brought against him Deceit by an Atturney after by couin agréed vpon betwéene the demandant and the said Atturney the same Atturney maketh default whereby the tenant doth loose his land then the same tenant who lost his land may haue a writ of Deceit against the Atturney And so it is if a man bring an action of Trespasse against two others Register fo 113. Fit N. B. 96. and the plaintife and an Atturney by couin agréed vpon betwéene them doe cause two straungers not parties to the writ to come into the court and to say that they be the same two defendants named in the writ and that they do constitute the same man to be their Atturney in that suit wherupon the same Atturney as Atturney to the defendants named in the writ do plead to an issue and after suffer the enquest to passe by his default by which meanes the plaintife doth recouer against the defendant in this case they who be indéed defendants and against whom the same action of Trespasse was brought may haue a writ of Deceit against the same Atturney that appeared as Atturney for them and shall recouer their dammages 10. Ed. 4. 9. 20. Eliz. Dyer 367. If an Atturney be informed by his client to plead a false plea which he cannot in conscience plead he may procure this Entrie to bée made Quod non fuit veracitér informatus ideo nihil c. to defend him in a writ of Deceit brought against him by his said client If an Atturney do sue forth a Capias where there was no originall writ before 20. H. 6. 39. he shal be committed to prison and thrust out of his place in that and all other Courts 4 As the law doth punish her Officers who do practise or commit any deceit or fraud in stead of truth in place of iustice The law reiecteth fraudulent acts so doth she renounce and condemne all acts of greatest importance if they be intermixt with guile and falshood For though Iudiciall acts as Fines Recoueries Warranties deedes inrolled c. being of their owne natures iust and lawfull and meanes to settle titles to appease controuersies and to yeeld each person his due bee therefore greatly respected and fauoured in her sight yet if any of them be deuised or executed by couin or to deceiue then she doth vtterly reiect them and adiudge them void Co. li. 3. 77. As a man was Lord of the Mannor of D. wherein there was a tenant which had some parcels of freehold land in fee simple the Lord demised certaine lands parcell of the demesnes of his said Mannor to the said freeholder for xxj yeares reseruing certaine rent and demised some other lands parcell of the said demesnes to the same fréeholder at will reseruing another rent and graunted by copie of Court roll certaine other lands parcell of the same Mannor to the sayd freeholder for the terme of life according to the custome of the sayd Mannour reseruing a third rent And after the same freeholder demised all the sayd lands which hee held by lease for yeares at will and by copie in D. to a straunger for the terme of life and then the same freeholder leuied a fine with proclamations of so many messuages so many acres of land medow pasture c. as he had by lease for yeres at will by copie of Court roll of his owne inheritance in D. by couin fraud to barre the lord of his inheritance All the proclamations were made and the fiue yeres were past the same fréeholder continued in possession of the land which was graunted to him by lease for yeres at will and by copie and paid to the Lord yerely his seuerall rents for the same And after the stranger to whom the fréeholder made the lease for life died and the lease which the Lord made to the fréeholder for xxj yeares expired And then the same freeholder claimed the inheritance of all the land which the Lord demised vnto him for yeares at will by copie intending to barre the Lord thereof by force of the fine with proclamations the fiue yeares past But this fine was adiudged void against the Lord and that it did not barre him to clayme and enter vpon his land for that it was leuied by him who had but estate in those lands for yéeres at will or by copy of court Roll and that neither had nor could pretend any title to the inheritance of the land but only by fraud practised the disheritance of the leassor And whereas the meaning of the makers of the statute of Anno 4. H. 7. St. 4. H. 7. 24 was as it may appeare by the preamble of the same that fines ought to be of the greatest strength to auoid strifes and debates when the lessée for yeares at will or copyholder shall make an assurance by fraud and couin A fine leuied of land to defraud the right owner therof to the intent a fine may be leuied to disherit the right owner of his land this is not a meanes to auoid or appease strife but to begin it where none was before and therefore the same statute did not intend to ratifie such an estate begun by deceit And further the meaning of the makers of the said statute was not That he who could not leuie a fine of this land in respect of the debilitie of his estate therin should be enabled by his owne practise and deceit to leuie a fine therof to barre him who had a lawfull title therein and a right to leuie a fine thereof And the same lessée for yeares tenant at will and copyholder contriued his fraud in so secret manner that by his couert practise he depriued his
yeare vnder their couent seales within one yeare next before the making of the said act should be vtterly void St. 31. H. 8. 13 And by a like statute made Anno 31. H. 8. it was ordayned That all leases of lands tenements or other hereditaments not vsually let leases of lands c. in reuersion leases of lands c. not reseruing the old and accustomed rent sales of wood assurances of lands of the kings gift or auncient foundation without the kings licence made by any abbots or gouernours of any Monasteries or other religious houses which were before the making of the said act dissolued within one yeare before the comming to the K. hands of the same Monasteries religious houses c. or which after that should bee dissolued or come to the kings hands should be vtterly void for the same leases sales of wood and assurances were intended to be made by fraud to deceiue the king of certaine commodities which the makers of that statute did meane and intend to giue him 40 Where maidens and women children of noblemen gentlemen and others as well such as were heires apparant to their auncestors as others hauing left vnto thē by their father or other auncestor friends lands tenemēts hereditaments or other great substance in goods cattels moueable for and to the intent to aduaunce them in marriage somewhat like according to their degrées and as might be most for their surety comfort as wel for themselues as of all other their friends kinsfolks were ofttimes vnawares to their said friends or kinsfolkes by flattery trifling gifts faire promises and other such deceitfull fraudulent practises of many vnthrifty light persons therunto by the intreaty of lewd persons others that for rewards bought and sold the said children secretly allured and woon to contract matrimonie with the said vnthrifty light persons and thereupon either with sleight or force oft times were taken conueyed away from their said parents friends or kinsfolkes to the displeasure of God disparagement of the said children continuall heauinesse of all their friends For the redresse and preuention wherof by a statute made Anno 4. St. 4. 5. P. M. 8. 5. P. M. it was enacted Deceitfull conueying a maid inheritable vnder xvj yeares of age That it shall not be lawfull to any person or persons to take or conuey away or cause to be taken or conueyed away any maid or woman child vnmaried being within the age of xvj yeares out of or from the possession custodie or gouernance and against the will of the father of such maid or woman child or of such person or persons to whom the father of such maid or woman child by his last Will or by any other act in his life time shall assigne bequeath giue or graunt the order kéeping education or gouernance of such maid or woman child except such taking conueying away as shal be had made or done by or for such persō or persons as without fraud or couin then shal be the master or mistresse or the gardian in socage or gardian in chiualry of or to such maid or woman child St. 4. 5. P. M. 8. If any person or persons aboue the age of xiiij yeares shal vnlawfully take or conuey The forf for taking away a maid vnder 16 yeares of age or cause to be taken or conueied any maid or woman child vnmaried being within the age of xvj yeares out of or from the possession against the will of the father or mother of such child or out of or from the possession of such person or persons as then shall haue by any lawfull wayes or meanes the order kéeping or education or gouernance of any such maid or woman child then euery such person persons so offending being thereof lawfully attainted or conuicted by the due course of the law of this realme other then such of whō such person taken away shall hold any lands or tenements by knights seruice shal be 2. yéeres imprisoned of his or their bodies without baile or mainprise or els shall pay such fine for his or their said offence to the Q. and party grieued as shal be assessed by the Q. counsell in the starre chamber at Westminster If any such person or persons shall so take away St. 4 5. P. M. 8. or cause to be taken away as is aforesaid Taking away deflouring or cōtracting matrimony with a woman c. and defloure any such maid or woman child as is aforesaid Or shall against the will or vnknowing of or to the father of such maid or woman child if the father be in life or of or to the mother of such maid or woman child hauing the custody gouernance of such child if the father be dead by secret letters messages or otherwise contract matrimony with any such maiden or woman child except such contracts of matrimony as shal be made by the cōsent of such person or persons as by the title of wardship shall then haue or be intituled to haue the mariage of such maid or woman child then euery such person or persons so offending being thereof lawfully conuicted as is aforesaid shall suffer imprisonment of his or their bodies by the space of fiue yeares without baile or maineprise or els shall pay such fine for his or their offence to the Quéene and party grieued as shal be assessed by the Quéenes Counsell in the Starre-Chamber The Quéenes Counsell of the Starre-chamber by bill of complaint or information Who may hear and determine these offences and Iustices of Assise by inquisition or indictment St. 4 5. P. M. 8. haue authority to heare and determine the said offences vpon euery which indictments and inquisitions such processe shall be awarded as vpon an indictment of Trespas at the common law If any woman child or maiden being aboue the age of xij St. 4 5. P. M. 8. yeres and vnder xvj A woman consenting to an vnlawfull contract doe at any time cōsent to such person that so shall make any contract of matrimonie contrary to the forme and effect of this statute then the next of her kinne to whom the inheritance should returne or come after her decease shall from the time of such assent haue and enioy all such lands tenements and hereditamēts as she had in possession reuersion or remainder at the time of such assent during the life of such person that so shall contract matrimony and after the decease of such person so cōtracting matrimony thē the said lands shall discend reuert remaine and come to such person or persons as they should haue done in case this act had neuer béen made other then to him onely that so shall contract matrimony But this act shall not extend to take away or diminish any liberty custome St. 4 5. P. M. 8. or authority cōcerning any
is an oppression and for the redresse thereof the same tenant may pursue against his lord a Writ of Ne iniuste vexes grounded vpon a braunch of the statute of Magna Charta St. 9. H. 3. 10 thereby commaunding the Lord that he shall not oppresse nor vniustly vexe his tenant for more rent or seruices then hée ought to pay or doe 12. E. 4. 7. 28. Ass p. 33 5. Ed. 4. 82. Or otherwise the tenant may auoid this surplusage of rent in an Assise Writ of Rescous or Cessauit brought against him by his lord but in a Repleuin he cannot auoid his lord of this rent newly incroched séeing the same lord hath had seisin thereof and so it is if the lord of a Manor 40. Ed. 3. 44. 49. Ed. 3. 22. 39. E. 3. 6. which is auncient demesne will encroch vpon his tenants and distraine them or any of them that hold their lands by Charter fréely to doe other seruices or customes to the same lord then they ought to doe or that their auncestors were accustomed to do this is an oppression of the same tenants and for the redresse thereof all the tenants of the said auncient demesne Manor may haue against their said lord the kings writ of Monstrauerunt directed to the said lord commaunding him thereby that hée shall not require nor cause to bée required of his said tenants more seruices or customes then they ought to doe Fitz. Na. Br. 14. or had wont to doe And if after the said writ directed he will distraine the goods of them or any of them againe to doe more seruices then they ought to doe Then the same tenants or such or so many of them as bee so distrained may procure an attachment against their said lord Fitz. Na. Br. 15. returnable in the K. Bench or common place for this oppression and contempt wherin euery of the same tenants shall recouer his dammages seuerally according to his losse 8 Euery excessiue amerciament which one person doth take of another Oppression by excessiue amerciament is also to be accounted an oppression of the party so amerced for by the Statutes of Magna Charta West 1. St. 9. H. 3. 14 3. Ed. 1 6. it is ordained That no Citie Borough Towne or man shall be amerced but for a reasonable cause and according to the quantitie of his offence and euery fréeman shall bée amerced sauing his fréehold a marchant sauing his marchandize and euery other mans villaine besides the kings sauing his villaine tenure and the same amerciaments shall bee assessed by the oath of honest and lawfull men of the same vicenage So that if one person doe take a much greater amerciament of another then the quantitie of his offence doth require in a Court Baron or other Court which is not of record or doe take that amerciament of his owne authoritie without being before assessed by others vpon their oathes and so maketh himselfe iudge in his owne cause this is an oppression of the party amerced for the redresse whereof the party grieued may procure to be directed to the lord of the said Manor or to his Baylife a Writ of Moderata misericordia which was founded vpon the said stat of Magna Charta commaunding them thereby Fitz. Na. Br. 75. that they shall take a moderat and indifferent amerciament of the same person according to the quantity of his offence And if the lord or his baylife will not then cease to distraine for the said excessiue amerciament the partie so oppressed may haue against the offendor an attachment directed to the Shirife of that Countie where the same Distresse is taken to attach him to appeare in the kings Court and to answere his said offence Oppression by committing of wast 9 The Wast and Estrepement which one person hauing a particular estate in another persons land doth make or commit to the disheritance of him in the reuersion or remainder of the same land without his consent may also be accounted an oppression of him in whom the said inheritance is for when one person doth lease or otherwise conuey his land to another for the terme of life liues or yeares he doth in effect but lend the same land to the sayd particular tenant for the terme betwéene them agréed vpon expecting to haue the same againe at the end of the terme in as good plight and in such sort as it was when he first did deliuer and lend it And therefore if the particular tenant during the continuance of his estate doe commit any wast in the same land he cannot deliuer it againe at the end of his terme in such plight and sort as at the first he did receiue and borrow it but by the wast the perpetuall profit of the land is impaired and therefore of so much in value hée in the reuersion or remainder is disherited And for the preuention thereof by the statute of Marlebridge it was ordained St. 52. H. 3. 24. That Farmors during their termes shall not make wast sale or exile of houses woods or men nor of any thing belonging to the Tenements which they haue in farme without they haue speciall graunt in writing making mention of a couenant that they may doe it And to the intent that condigne punishment might bée prouided and inflicted vpon such as should be transgressors and oppressors in these cases of Wast by the statute of Gloucester it was enacted St. 6. Ed. 1. 5 That a man shall haue an action of Wast in the Chauncerie against him which is tenant by the courtesie of England The tenants forf which cōmitteth wast or otherwise tenant for terme of life or for terme of yeares or against a woman which holdeth in Dower and he which shall bée attainted of Wast shall forfeit the thing wasted and besides shall pay treble so much as the Wast shall be taxed and after by the statute of Westminster the second the same was in a sort confirmed St. 13. E. 1. 14 and the said action of Wast was againe giuen against the foresaid tenants by the courtesie in dower for terme of life or yeares and also ordained to extend against Gardens And by the same statute the proces to be vsed in the said action of Wast was assigned to be Summons Attachment and Distresse and if the party defendant doe not appeare at the distresse then a writ shall be awarded to the Shirife to inquire of the wast by the oathes of twelue men And because diuers persons did let their lands to others sometime for terme of life or anothers life and sometime for terme of yeares and after the said tenants did graunt their estates which they had in the same Lands and Tenements to others to the intent that they in the reuersion viz. their lessors their heires or assignées should not take knowledge of their names and yet the first lessees did continually occupie the said Lands and tooke the profites to
their owne vse and in the said Lands and Tenements did commit wast and destruction to the disheritance of them in the reuersion For the restraint and punishment of which said offence being both an oppression and also a fraud and deceit St. 11. H. 6. 5 Fit N.B. 59 by a Statute made Anno 11. H. 6. it was ordayned That they in the reuersion in such case may haue and maintaine a writ of Wast against the said Tenants for terme of life anothers life A termor alieneth his estate occupieth the land coÌ„mitteth wast or for yeares and so recouer against them the place wasted and their treble dammages for the wast so by them done as they ought to haue done for the wast done by them before the said Graunt and Lease of their estate Prouided That this Ordinance shall not hold place but where the first Tenants before the Graunt and Lease of their estates in the manner and forme abouesaid were punishable of wast and also where after the said Graunt and Lease the said first Tenants of the said Landes and Tenements do take the profits at the time of the wast done to their owne proper vse And though the wordes of the said Statute doe giue an action of Wast in the case aforesaid but onely to him in the reuersion Co. li. 5. 77. yet he in the remainder also being in the like mischiefe shall or may take the benefit thereof and maintaine an action of Wast in this case against his particular Tenant for life or yeares if eyther of them doe commit wast to his disheritance And whatsoeuer the intent of the Grauntor is in the case aforesaid yet if the Grauntée doe assigne his Lease take the profits thereof and commit Wast he is punishable according to the sayd Statute for his intent shall not be issuable nam exitus acta probat viz. the taking of the profites doe sufficiently expresse his intent and euery assignée of the first Tenant mediat or immediat is within the compasse of this Statute for the Statute was made to suppresse Fraud Wast and Oppression And so was the Statute of Westminster the second béeing made and prouided to restraine Wast and Oppression committed by one Tenant in common to the preiudice and disheritance of another by which it was ordayned St. 13. E. 1. 22 That whereas two or more doe hold Wood Wast coÌ„mitted by a tenant in common Turbarie Fishing or such like things in common wherein none knoweth his owne seuerall and one of them doth commit Wast against the will of the other an action of Wast may lye and when it is come vnto iudgement the defendant shall chuse eyther to take his part in a place certaine by the assignement of the Shirife and by the view and oath of his neighbours sworne and tryed for the same intent or els he shall grant to take nothing from thenceforth in the same Wood 3. E. 1. Wast 25. 50. Ed. 3. 3. Turbarie and such other but as his parteners will take And if he doe chuse to take his part in a place certaine the place wasted shall be assigned for his part according as it was before he committed the Wast And because the before rehearsed statute of Marlebridge doth expresse in generall termes in what thinges Wast may be committed as in Houses Woods and Men and the words of the writ of Wast in the Register be Quare fecit vastum venditionem seu destructionem de terris domibus Boscis Gardinis and the foresaid Statutes of Anno 6. Edw. 1. 13. Edw. 1. and 11. H. 6. doe declare who are forbidden to doe that Wast and séeing Wast in Lands Houses Woods or c. is a great wrong and oppression to him or them in reuersion or remainder of the same therefore I will somewhat particularly explaine which the Law doth construe and expound to be Wasts prohibited and punishable by the foresaid Statutes or either of them to the intent that both he that hath the inheritance and also the particular Tenant may know what is due to either of them in respect of their seuerall estates and what to take and what to leaue And to begin with the words of the Writ touching Wast in Land Wast in land If one person doe demise or conuey to another for the terme of yeares life or c. Land 22. H. 6. 18 2. H. 7. 14 17. E. 3. 7. 9. Ed. 4. 35. Co. li. 5. 11. Fit Nat. Br. 149. Lib. in t 6â—6 where there is included in the bowels of the earth Tynne Yron Lead Coale Stone Grauell Morter Sand Chalke or Marle if the Myne or Pit thereof be not open when the Lessées estate or terme doth begin the said Tenant may not open the ground make a new Myne and take the same Coale Stone Grauell or c. for if he doe it is Wast of the land and he in the reuersion or remainder may punish him therefore by an action of Wast For whereas there was assured to the Tenant but Vesturam terrae and the annuall profit of the Land hée hath digged and carried away the Land it selfe and impaired the inheritance thereof for euer But if there bée a Myne or Pit open in any part of the ground so demised or assured at the time of the Lease or assurance thereof or at the time when the estate of the Tenant did begin then the Tenant may digge there and take and carry away so much of the Coale Stone Grauell as shall be necessarily vsed or imployed for or towards the repaire or maintenance of the House Land or other commodities therewith demised and it is no Wast But if he do giue sell 41. E. 3. Wast 82. or otherwise dispose the same to any other person place or vse sauing as is aforesaid then for so much as he shall so mis-imploy it is Wast If one person doe lease or assure his Land to another and all the Mynes or Pits therein for yeares life Co. li. 5. 11. or c. the Lessée may open and digge the ground for Coale Morter Stone c. and take and carry away the same though there was not any Myne open at the time of the Lease or estate made For by the assurance it doth appeare that the Lessor was contented that wast should be made in any part of the ground leased by myning or digging and in this case the Lessée may sell or otherwise dispose the same Coale Stone Marle or c. at his pleasure 17. Ed. 3. 7 for it is as much as if the Lease or assurance had béene made to the Tenant without impeachment of any manner of Wast to be committed by Mynes Pits or diggings If the Tenant for yeares life or c. doe eyre plough vp and conuert into Tillage or Wood ground an auncient and vsuall mâ—wen Meddow it is Wast and so it is 15. H. 3. Wast 131. 46. Ed. 3. Wast 91. if he doe drowne or
against the possessor of them to bring them into the same Court. And so the King shall haue the benefite of an action of trespasse Forfeiture of a trespasse which the partie attainted might haue had against the other for those goodes wrongfully taken or holden away But if he that was attainted were beaten or mayhemed by another the King shall not haue an action of trespasse of battery 29. As p. 63 30. Ed. 3. 4 appeale of mayheme or other remedy against that partie which did the foresaid iniurie to the person attainted for that the money to be recouered by the action of trespasse is reduced to no certaintie And if money be owing to a man by obligation or simple contract Forfeiture of a debt and after he to whome the money is payable is attainted of treason or felonie Fi. Cor. 343. that obligation and duetie shall be forfeited to the King And if one man or more be bound by obligation to two men or more for the paiment of a summe of money or any other dutie Ioynt debt forfeited and one of the Obligées is outlawed or attainted of treason or felonie the King shall haue the whole Obligation and the money or dutie arising or payable thereby 19. H. 6. 47. 28. H. 8. Dy. 30. and the King or he to whom the King will giue the same debt shall haue an action in his owne name to recouer it which action shall bée maintainable though there be variance betweene the action and the specialtie 50. As p. 5 28. Ed. 3. 92 And in like sort if a man be Receiuer to another of his money An account forfeited and hee to whom he is receiuer be attainted of Treason or Felonie after office found thereof the King may haue a Scire facias against the Receiuer to receiue this money and by that meanes the King shall haue the benefit of the action of account which the partie attainted might haue had Forfeitiâ—g of an interest And in some cases an offendor in treason or felonie shall forfeit an interest in lands whereof he himselfe neuer had or could haue possession but an authoritie to dispose As if hée that hath the reuersion of lands in fée simple whereof another hath the possession for the terme of yeares 14. El. Dy. 309 doth graunt and assure this land to others to the vse of himselfe for terme of his life and after his decease to the vse of the Executors and Assignes of the grauntor for the terme of twentie yeares next after the death of the grauntor the remainder ouer in taile and after the grantor is attainted of treason by Act of Parliament and all his lands tenements goods and cattels which he had to his owne proper vse were forfeited to the King and vested in his actuall possession without office and the grauntor died intestate without assignement of this lease In this case the King shall haue this terme of twentie yeares as forfeit to him for it was an interest in the grauntor and did and might well remaine in him in expectancie notwithstanding his estate for the terme of his life and if the grauntors executors should haue had this lease they must not haue enioyed it to their owne vse but as assets in their hands And though the King shall haue such goods The King shall not pay the attainted persons debts debts money due vpon accounts and interest in lands as were due to the partie attainted of treason Fi. Cor. 317 334. or felonie yet he shall not pay such debts as the said person attainted did owe. 11 As in the cases aforesaid and some others a person attainted may forfeit goods debts and rights whereof he hath no possession but onely an action or title so in some other cases hee may forfeit goods whereof he hath no propertie but onely a possession As if a man deliuer money out of a bagge Forfeiting of goods wherein the offendor hath no propertie or corne out of a sacke to another to kéepe and to restore againe when the owner will require it if the partie to whom the money or corne was deliuered be attainted of Treason or felonie the money or corne shal be forfeited to the King and the partie who deliuered the same hath no remedie to recouer it for the first owner who deliuered it cannot prooue that it was his money when it was out of a bagge or that it was his corne when it was out of a sacke for that one sort of money cannot be knowne from another nor one sort of corne from another Fi. Cor. 317 3â—3 But if the money were deliuered in a bagge or the corne in a sacke then the owner that deliuered it may come vnto the Iustices before whom the offendor is attainted and shewe the deliuerie of it and signifie that it was to be restored vpon his request whereof the Iustices shal enquire by an Enquest of office and if his suggestion be found to bée true hee shall haue his money or corne againe But if the money or other thing deliuered by the owner be conuerted to another commoditie then the law is otherwise as if a man deliuer money to another to buy wooll or some such other commoditie and to worke it lay it vp or to kéepe it in his house Fitz. Cor. 334. and the partie to whom the money is deliuered doth buy wooll or c. and bringeth it to his owne house and then is attainted of Treason or Felonie the King shall haue the wooll or c. as forfeit and the partie who deliuered the mony is without remedie to recouer his money or the wooll or c. for though hée might haue had an action of Account against the partie to whom hee deliuered his money if he had liued and remained vnattainted yet hée shall haue no action or remedie against the King Forf for default of pursuit 12 If a man doe steale goods at diuers times from seuerall men and he is attainted at the suit of one of them for the goods stolne from him 44. E. 3. 44. but is not attainted at the suit of the others by this attainder the felon shall forfeit to the King not onely his owne goods but also the goods stolne from those other at whose suit hée was not attainted though hee had no propertie but only a possession in those goods for a felon hath no propertie in goods stolne A felon hath no property in goods stolne but it doth alwayes remaine in the right owner which propertie in this case for default of pursuing the felon is forfeited to the King Forf of other mens goods his owne 13 In like sort if a man doe steale goods from another Fi. Cor. 318 and before his attainder hée doth kill himselfe hée shall forfeit to the King not onely his owne goods but also the goods which hée did steale from that other though hée had no propertie but
be supported and maintained with land to vphold the countenāce charge of the owner thereof And therfore this Earldome being by the K. giuen to the Earle the heires males of his body begotten is an inheritance which may discend from one heire male to an other and then by the speciall words of the before rehearsed Statute of 26. H. 8. and 5. Ed. 6. it shall be forfeited to the King by the said heires attainder of high treason for it was in the same heire an hereditament and whereof he had an estate of inheritance And moreouer when the King at the first did giue to this Earle and the heires males of his body begotten the foresaide great title of honour though there was no condition expressed in the same grant yet there was a secret condition implied therein viz. that the said grauntée and the heires males of his body should be assistant and seruiceable to the King his heires and successors by his Councell in the time of peace and by his force and prowesse in the time of warre Therefore when the heire male of this Earle the first grauntée did take Councell to breake the peace of the King and leuied warres and imployed his force and power against him he first brake the same secret condition which was annexed to his ancestors graunt of the Earledome And so there is reason and cause whie his said title of honour depending vpon the same condition should therewith cease and determine and that the same should returne againe to the Crowne from whence it was deriued The forfeture of lands in fée simple 27 Besides the forfeitures aforesaide 30. H. 6. 5. euery person that is attainted of high treason petit treason or felonie shall also forfeit his lands in fée simple which he hath in his owne right in vse or possession sauing that the attainder of treason by force of the Statute of Anno 5. El. 1. St. 5. El. 1. ordained against the maintaining of the authoritie of the Bishops and Sea of Rome shall not extend to make any corruption of bloud the disheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other than the offendor or offendors during his or their naturall liues onely And sauing that the attainder of treason by force of the Statute of Anno 5. Eliz. 11. St. 5. El. 11 prouided against the clipping washing filing or rounding of money maketh no corruption of bloud in the heire or forfeiture of dower in the wife And sauing that the attainder of treason by force of the Statute established Anno 18. El. 1. against impairing diminishing falsifying skaling St. 18. El. 1 or lightning of money maketh no corruption of bloud nor the wife to loose her dower for he that is attainted of that treason shall suffer death and forfeit all his goods and chattels to the King and all his lands during his life onely And likewise sauing that the attainder of felonie by force of the Statute made Anno 1. Iac. 12. against coniuration witchcraft enchantment St. 1. Iac. 12 charme and sorcerie maketh no corruption of bloud nor the forfeiture of the heires or successors inheritance of any land nor of the wiues title of dower And further sauing that the attainder of felonie by force of the Statute prouided Anno 1. M. 12. against vnlawfull assemblies St. 1. M. 12 maketh no corruption of bloud And moreouer sauing that the attainder of felonie by force of the Statute ordained Anno 5. El. 14. against the forging of Euidences St. 5. El. 14. and writings maketh no corruption of bloud nor forfeiture of land or dower And furthermore sauing that the attainder of felonie by force of the Statute of Anno 31. Eliz. 4. St. 31. El. 4 prouided against the imbeseling of the Quéenes ordnance armour or artillery maketh the offendor to forfeit no lands tenements or hereditaments any longer than during his life St. 4. Iac. 1. S. Triall by the country 10. Co. li. 7. 34 S. Br. 56. no corruption of bloud nor the wife to forfeit her dower And the same lawe is if an Englishman doe commit any felonie in Scotland And if a man haue an annuitie to him and his heires The forfeture of an annuity and he doe commit high treason and is attainted thereof he shall forfeit to the King the same annuitie by force of the before recited Statute of Anno 26. H. 8. 13. for that the same annuitie is an inheritance 28 He that is attainted of high treason petit treason or felonie Forfeiting of a title to land shall also forfeit such lands whereof he hath neither possession reuersion or remainder but onely a title or right or cause of action As if a man be disseised of lands and then the disseisée committeth high treason Co. l. 3. 10 after an office found thereof the king may seise those lands as forfeited and escheated vnto him in respect of the same persons attainder of treason And if the disseisée be attainted of petit treason or felonie the Lord of the Fée of whom the same lands be holden may enter into the same lands as escheated vnto him in respect o◠the attainder of his lawfull tenant But the Lord cannot haue a writ or escheat or other action to recouer the same land because his tenant died not or was not seized thereof but his onely remedie is to enter 6. H. 7. 9 And if a man make a lease for the terme of life of his land and after committeth felony and then the tenant for the terme of life dieth the Lord may enter but cannot haue a writ of escheat 29 As he that is attainted of treason or felony shal forfeit his lands Forfeiting of euidence so shal the Lord to whom those lands be forfeited 49. H. 6. 14 haue the euidēce of the same lands as escheated or forfeited vnto him to maintaine his title in the same lands escheated and to prooue how his late tenant came by and held the same lands St. 9. H. 3. 29 30 Though it is ordained by the statute of Magna Charta That iustice shall not be sold deferred or denied to no man neither shall any man be condemned but by lawfull triall and that it be further established by the statute of Anno 5. Edw. 3. St. 5. E. 3. 9 That no man shal be attached nor foreiudged of life lands or goods against the forme of the great Charter and the Law of the Realme So that the Law of the Realme doth allow to euery man that is an offendor his answere and lawfull triall be his crime supposed to be neuer so great and the proofe thereof neuer so manifest But if a man that is arrested of Treason or Felony or being vehemently suspected to haue committed Treason or Felony is attempted to be arrested be so wilfull stubborne or rebellious Forfeiture without at-attainder that he will
possession in law and not in déed notwithstanding the death of him which is attainted But by the stat of an 33. H. 8. the king shal haue the lands St. 33. H. 8. 20. goods cattels and all other things of the offendors attainted of high Treason without any office the words of which stat be these viz. If any person or persons shal be attainted of high Treason by the course of the common lawes or statutes of this realme in euery such case euery such attainder by the common law shal be of as good strength value force and effect as if it had bin done by authoritie of Parliament And the K. his heires and successors shall haue as much aduantage by such attainder as well of vses rights entries conditions possessions reuersions remainders and all other things as if it had bée done and declared by authoritie of Parliament and shal be déemed and adiudged in actuall and real possession of the lands tenements hereditaments vses goods chattels and all other things of the offendors so attainted which his Highnes ought lawfully to haue and which they so being attainted ought or might lawfully loose and forf as if the attainder had bin done by authoritie of Parliament without any office or inquisition to be found of the same Any law statute c. notwithstanding By force of which stat the King shall be in actuall and reall possession of those lands which do escheat vnto him by any attainder of high Treason An office of those lands which do escheat for felonie without any office or inquisition thereof found though for those lands which do escheat vnto him by any attainder of felonie there must be an office found for him before he can enter according to the antient course of the common law Forf of title of Dower 54 By the common law any man attainted of Treason or felonie should haue forfeited that title which his wife had by their espousals to be endowed of his lands to the intent that if the care of his owne life could not stay him from the committing of felony or treason yet the loue which he did beare to his wife and children should restrain him therof whom he was assured by that wicked act to vndoe and vtterly to depriue them of all likelihood wherewith to maintaine them And some do affirme that this law was at the first deuised to punish the wise and to auoid her dower for that it was intended that the wife gaue consent vnto or at the least did know of the Treason or Felonie which her husband committed and either by intreatie persuasion or some other meanes might haue withdrawne him from it But the common law in that case is altered by the stat of Anno 1. Ed. 6. St. 1. E. 6. 12 whereby it is enacted That albeit any person or persons of what estate condition or degrée he or they be shal fortune to be attainted conuicted or outlawed of any Treason petit Treason Misprision of treason Murder or Felony whatsoeuer yet that notwithstanding euerie woman that is or shall fortune to be wife of the person so attainted conuicted or outlawed shal be endowable and enabled to demaund haue and enioy her dower in like maner and forme as though her husband had not béene attainted conuicted or outlawed Any statute law custom c. notwithstanding But after some part of the foresaid stat of Anno 1. E. 6. was altered by a braunch of a stat St. 5. 6. E. 6. 11. made Anno 5. 6. Ed. 6. whereby it was prouided and enacted That the wise or wiues whose husband or husbands hereafter shal be attainted of any Treasons whatsoeuer they be shall in no wise be receiued to aske challenge demand or haue dower of any the lands tenements or hereditaments of any the person or persons to be attainted of treason as is aforesaid during the said attainder in his force And yet sithence the foresaid stat of 5. 6. Ed. 6. it was specially prouided and ordained by the stat made Anno 5. El. 1. Anno 5. El. 11. An. 18. El. 1. That the husbands attainder of treason by force of any of the foresaid stat should cause no forf of dower in the wife S. Br. 27. Br. Appeale 117. Fitz. Iudg. 225 Plo. Com. 261. 55 If in an Appeale the Appellée do wage battell What the Appellée that wageth battell shall forf and the Appellant doth slay him in the field the Appellee shall forf all his goods chattels but his land shall not escheat for inheritance is so greatly fauoured that it shall not be forf without attainder by iudgement But if the Appellant do vanquish the Appellee then his land shal be forf for when he is vanquished and not killed iudgement shal be giuen that he shal be hanged and by that meanes he shall forf his land 6. H. 8. Dyer 2. 56 If a man seised of land in fée A rent charge pro consilio not forfeited doth grant a rent charge out of the same to another for the terme of the life of the grantee pro bono cōsilio suo impendendo with clause of distres within the same land if the grantée of this rent charge be attainted of treason and committed to prison yet hee shall not forf this rent charge to the K. for it is incident to the cause for the which it was giuen viz. to the counsell to be giuen by the grantée to the grantor which was a trust that the grantor reposed in the grantée to giue him counsell which trust the grantée cannot assigne or forf to another And though the grantée of this rent charge be attainted of treason and imprisoned yet the grantor may come or send to him for his counsel and he may giue it him and so there wil be no fault in him But if a man do purchase a rent charge for the time of his life out of another mans lands in consideration of a summe of money paid by the grantée to the grantor and after the grantee is attainted of treason or felony the same rent charge shal be forf to the K. and paid to him during the life of the grauntée S. Br. 27. The forfeitures of an Outlaw 57 Out of all which foresaid forfeitures Bracton de coron̄ c 13 the words of Bracton may be verified who writeth That a man outlawed or otherwise attainted of Treason or Felony shall forfeit his coūtrey and kingdome and shall become a banished man who in English is called an Outlaw And in former times he hath béene tearmed a Friendlesse man and so he hath séemed to forfeit his friends for if any man after his Outlary doth willingly féed him receiue him kéepe company with him or hide him he shal be punished in the same sort that the Outlaw shall Also he shall forfeit all things which be peaceable séeing that from the time he is an Outlaw he carieth a Wolues head so
9 And because seruants in husbandrie labourers artificers and other persons of meane degrée should take no incouragement nor occasion to breake the peace nor weare any weapons therewith to menace threaten or terrifie others Therefore by a Statute made anno 12. R. 2. it was ordained St. 12. R. 2. 12. That no seruant in husbandrie or labourer nor seruant of artificer or victualler shall beare any Buckler Dagger or Sword vpon paine of forfeiting of the same except it be for the defence of the realme in the time of warre and then by the suruey of Arraiers for the time beeing or in trauelling with their masters or on their masters businesse And Sherifes Mayors Baylifes and Constables shall haue power to arrest all offendors against this Statute and seize the said Bucklers Swords and Daggers and kéepe them vntill the Sessions of the Iustices of peace and the same shall present before the same Iustices in their Sessions together with the names of them that did beare the same But this shall not be preiudiciall to the franchises of Lords touching forfeitures due to them By the foresaid two Statutes of 2. Ed. 3. and 12. R. 2. it doth appeare that the meaning of the makers of those lawes was not onely to preserue peace to eschew quarrels but also to take away the instruments of fighting and batterie and to cut off all meanes that may tend in affraie or feare of the people Assurances made by menace 10 As menace of life and member giueth cause of an action of trespasse to him that receiueth losse or hurt thereby intituleth the king to a fine 20. Ass p. 14 28. H. 6. 8. in like sort an obligation a release or déed of annuitie made and granted by menace are voidable by the law so that the same menace be of life member or libertie viz. of some hurt to be done to his body by death maiheming or imprisonment and not to his lands or goods for if A. will menace B. that if he will not make him an obligation of xx l that then he wil disseise him of such land 7. Ed. 4. 21. 4. H. 4. 2. 39. H. 6. 51. or dispossesse or take from him such goods in this case if B. doe make and deliuer the said obligation of xx l to A. in an action of debt brought by A. against B vpon the said obligation B. shall not auoyd this obligation in respect of this menace because this menace did not tend to the hurt of the person of B. but to preiudice him in his lands or goods for the redresse and recouerie whereof the law would haue giuen B. a sufficient remedie if A. should haue done him the wrong which he menaced And he that will take an aduantage to auoid his déed by menace must in this plea expresse Fitz. Dures 13. how and in what sort the other partie did menace him viz. that he drewe his sword against him and threatened to kill him if he would not seale and deliuer such an obligation release annuitie c. If A. doe menace B. in one countie that he will kill or maihem him 33. H. 6. 24. 2. H. 5. 10. if hee doe not seale him an obligation of xx l or stand to the arbitrement of C. in a cause depending in question betweene them And after B. beeing at libertie in another countie doth seale the same obligation or doth stand to the arbitrement of C. this obligation or arbitrement is void for it shall be intended to bee done by force of the first menace And if A. doe menace B. that he wil kil him imprison maihem or beate him if he doe not make an obligation of xx l to C. 39. H. 6. 36. Co. li. 2. 9. if in this case B. do become bound by obligation to pay vnto C.xx l. in an action of debt brought vpon this obligation by C. against B. the same B. may auoid this Obligation which he made by this menace of A. though the menace was made by one man the Obligation was made to an other for that the menace was the cause of the making of this Obligation which the law doth respect and punish and not only the partie to whom the Obligation was made 11 Assault batterie be for the most part an accomplishment of that which menace did threaten a performance by déedes of that What is assault and batterie which the other forewarned by words that is to say a violent forcible abusing or attempting to abuse by blowes and stripes the person of an other contrary to the peace of the Realme and the law of the same which hath ordeined that no person shall be Iudge or reuenger of his own wrong but leaue that to the censure of the law that is alwaies readie to heare redresse euery mans iust complaints for he that doth attempt to assault or beat an other to satisfie his own turbulent spirit or to reuenge his owne priuat iniurie doth as much as in him lieth to wrest the sword of gouernmēt out of the K. hands to take from the law her equal censure in justice to make himself both Iudge executioner in his own cause because this disordered person contemning the justice of the Law hath assaulted or beaten an other without warrant of law broken thereby the peace of the realm the law hath deuised a quiet peaceable course to reduce him again to order in punishing him by an action of Trespas of assault batterie wherin being conuicted he shal satisfie the party grieued his damages pay to the K. a fine his body shal be committed to prison vntill he hath satisfied it Though the party menaced shall not haue his remedy by action of Trespas vnlesse the same menace was of life member and also that the party menaced receiued some losse or preiudice therby in his liuelyhood or estate for that the menace the hurt which the party doth receiue thereby being ioyned together do make the trespas giue cause of the action of Trespas Yet in an action of Trespas of Assault battery where it is proued found that the offendor did make an assault only as one did strike at an other with a hatchet but did make no batterie or hurt the person of any other it is otherwise for séeing assaulting doth tend to the breach of the peace 22. Ass p. 60 42. Ed. 3. 7. 40. Ed. 3. 40. 6. H. 7. 1. he that maketh an assault doth his indeuor to hurt the law doth giue to him that is assaulted an action of Trespas to recouer his damages to the K. a fine for by the assault the party assaulted is put in feare euill handled hindred of his busines And if he be diuers times assaulted 45. E. 3. 24. he may haue one action of Trespas for all those assaults shall recouer damages according to the number and grieuousnes of them And
shall be attending vpon the Iustices to go and assist the same Iustices to arrest such offendors vpon paine of imprisonment and to make fine to the King 3 And forasmuch as the said Statute of 15. R. 2. doth not extend to Entries into tenements in peaceable manner and after holden with force nor if the persons which enter with force into any lands or tenements be wholy remoued and departed before the comming of the said Iustices or Iustice Neither is there any paine ordained if the Shirife do not obey the precepts of the Iustices in this behalfe St. 8. H. 6. 9. Therefore by an other Statute made An̄ 8. H. 6. it was ordained that the said former Statutes should be continued and executed And further that where any do make such forcible entrie into lands tenements or other possessions or hold them forcible Holding possession by force after complaint thereof made within the said Countie where such entrie is made to the Iustices of peace or to one of them by the partie grieued that the Iustices or Iustice so warned within a conuenient time cause the said Statute to be executed and that at the costes of the partie so grieued And whether such persons making such Entries be present or gone before the comming of the said Iustices or Iustice presently the same Iustices or Iustice in some good Towne next vnto the tenements so entred or in some other conuenient place according to their discretion shall haue authoritie to inquire by the people of the same Countie aswell of them that made such forcible entries into lands or tenements Feoffement of lands for maintenance as of them which hold the same with force And if it be found before any of them that any doth contrarie to this Statute then the said Iustices or Iustice shall cause the lands or tenements so entred or holden as aforesaid to be reseised and shal put the partie so put out in full possession of the same lands or tenements so entred or holden as before they were entred or holden And if any person after such entrie into lands or tenements holden with force make a feoffement or other discontinuance 〈◊〉 any Lord or other person to haue maintenaunce or to take away and defraud the possessor of his recouerie in any wise if after in an Assise or other action thereof to be taken or pursued before Iustices of Assise or other the Kings Iustices whatsoeuer they be by due inquirie thereof to be taken the same feoffements and discontinuances may be duely proued to be made for maintenance as is aforesaid then such feoffements or other discontinuances so as before made shall be void And if any person be put out or disseised of any lands or tenements in forcible manner or put out peaceablie after holden out with strong hand and armes against the Iustice of peace or after such entry any feoffement or discontinuance in any wise thereof be made An Assise or action of trespas againste disseisour by force to defraude take away the right of the possessor the party greiued in this behalfe shall haue an Assise of Nouel disseisin or a writ of Trespas against such disseisor And if the party grieued recouer by Assise or by action of Trespas and it be found by verdict or in any other manner by due forme of the Law that the partie defendant entred with force into the lands tenements or them after his entrie did hold with force then the plaintife shall recouer treble dammages against the defendant and moreouer the defendant shall make fine and ransome to the King The authority of officers of Cities and Townes enfranchised And the Maiors Iustices and Iustice of peace Shirifes and Bailifes of Cities and Boroughes hauing fraunchise shall haue in the said Cities Townes Boroughes like authoritie to auoid such Entries and in other articles aforesaid rising within the same as Iustices of peace and Shirifes in Counties and Shires haue 4 As by the foresaid Statute of 8. H. 6. if any person after entrie into lands or tenements holden with force shal make any feoffement or other discontinuance thereof to any Lord or other person to haue maintenance or to defraud the possessor of his recouery then the same feoffements discontinuances shall be void So by an other Statute made before that Anno 4. H. 4. St. 4. H. 4. 8. it was inacted A speciall Assise against a disseisor with force That if any man in his owne right to his vse or in an other mans right to his vse doth make any forcible entrie into an other mans lands by way of maintenaunce or doth take or carry away any goods of the possessors of the fréehold after any such forcible entrie then if the partie grieued or other lawfull man will affirme that the entry was made in such forcible manner the Chancellor of England may graunt to the partie greiued a speciall Assise And if the disseisor be attainted of such forcible disseisin he shall be one yeare imprisoned and pay to the partie grieued his double dammages and also dammages for his goods And one of the Iustices of the one Bench or of the other or the chiefe Baron of the Exchequer if he be learned in the law shall be named in euery such speciall Assise And no Supersedeas shal be granted to the contrarie of such Assise 5 Wherefore if a man be disseised by force of any lands or tenements by way of maintenance or that his goods be taken or carried away after such entrie made Or that he be put out or disseised of his lands in forcible manner Or that he be put out peaceablie and after holden out with force against a Iustice of peace Or after such entrie any feoffement or discontinuance be made to defraud and take away the right of the possessor then the partie grieued as his case requireth may haue a speciall Assise against the disseisor and recouer his double dammages Seuerall remedies for seuerall offences by force and dammages for his goods and the disseisor shall be one yeare imprisoned according to the foresaid Statute of 4. H. 4. St. 4. H. 4. 8. Or else he may haue an Assise of Nouel disseisin or an action of Trespas against the disseisor and recouer treble dammages and moreouer the disseisor shall make fine and ransom to the King according to the before rehearsed Statute of 8. H. 6. St. 8. H. 6. 9. Or if the plaintife will omit the benefit of recouerie of his dammages he may only craue and vse the assistance of a Iustice of peace to sée and remoue the force to record it to inquire of it and to make him restitution according as the truth of his case shall appeare to the said Iustice vpon his owne sight or be found by inquisition according to the former prouision of the said Statute of 8. H. 6. Or lastly he that is put out or holden out of his lands with force
by the bringers hereof the bodies of the said C. D. E. F. conuicted of the said forcible holding by my record commanding you and euery of you in his Ma. name that you receiue them safely keepe them in your said Goale vntill they shall haue made their fine and ransome to the King and be deliuered thence by the order of the law Hereof faile you not vpon the perill that will fall thereof Dated at Salden the 30. day of I. in the third yere of the raigne of our soueraign Lord K. Iames c. 16 And though the words of the before rehearsed stat of 8. H. 6. be Vpō cōplaint made to the I. of P. or one of thē c. yet those words do not alwais bind a I. of P. to expect the cōplaint of the party grieued or to omit to do his duty in inquiring of repressing punishing of force because the party grieued by the forcible entry or detaining of possessiō is ignorāt in séeking lawfull redres for his receiued iniury or doth intēd to take his remedy by other means but a I. of P. hauing notice of such forcible entry A Iustice may inquire of forcible entries without complaint or detaining of possession by force though it be by others and not by the party grieued may and of duty ought to goe to the place where the same force is committed to make inquisition thereof 7. E. 4. 18. and if the force be found to make restitution to the party expelled or put out by force And so by his meanes the offendor shall be punished according to his desert the partie wronged shal be restored the king shall be intituled to a fine all which without the said Iustices diligence would be omitted An action of forcible entry 17 If a man that is seised of lands or tenements of an estate in fée simple Fitz. Na. B. 248. fée taile for terme of his owne life or for the terme of anothers life be disseised or expelled thereof by force he may haue an action of Trespas of forcible entry vpon the foresaid statute of 8. H. 6. against him or them that did so disseise or expell him thereof and so he may if he be put out 6. H. 7. 12. or disseised of his lands or tenements peaceably and after the disseisor or he that doth expell him 14. H. 6. 1. doth hold them with force And in like sort he may haue the same action 3. E. 4. 19. 10. E. 4. 11. if any doth enter into his said lands or tenements with force after doth defend and hold them by force then he which is so put out and holden out with force may haue this action though the words of the statute be in the disiunctiue viz. disseised with force or disseised quietly after holden out with force for that the intent of the statute was to punish all such forces whether it were vpon the entry disseisin made or vpon the holding and detaining of the land with force in all which cases he who is so disseised or put out may haue an action of forcible entry vpon the said statute of 8. H. 6. and shall recouer his damages and costs to the treble of that which shal be found by the Enquest that he is endammaged 19. H. 6. 6. 22. H. 6. 57. 9. H. 6. 19. hath spent in his suit The writ of forcible entry must be Vi armis as wel for the occupation as for the first entry And it is to be noted that the writ declaration in an action of forcible entry must be that the def entred vi armis and not illicite or by any other such words for if the writ be otherwise it shall abate seeing a writ of forcible entry is alwaies vi armis 37. H. 6. 23. 38. H. 6. 1. and proces of Outlawry lieth in it and the declaration must expresse the certainty of the lands whereupon the defendant did make his forcible entry and which they be and not suggest that he did enter vpon certaine lands in D. And in this action of Forcible entry 35. H. 6. 6. 49. Ed. 3. 2. Co. lib. 3. 12. and in all actions Quare vi et armis a Capias doth lie and where a Capias doth lie in the proces there after iudgement a Capias ad satisfaciendum doth lie and there the king shall haue a Capias pro fine Who may brīg an actiō of forcible entry 18 None can pursue or maintaine this action of Forcible entry Fit Na. B. 248. but he who hath fréehold at the least in the lands or tenemēts so entred vpon for tenant for terme of yéeres or a copyholder cannot maintaine this action for that the words of the said stat of 8. H. 6. be If any person be put out Sta. 8. H. 6. 9 or disseised of any lāds c. and the words of the writ grounded vpon the said statute be Expulit et disseisiuit and tenant for terme of yéeres or a copyholder cānot be disseised séeing disseisin is alwaies of a fréehold which neither of them haue in that land But if tenant for terme of yéeres or a copiholder be put out by force or put out peaceably after holden out with force of land which either of them doth hold by the said estate then vpon cōplaint made by the party grieued to a I. of peace after inquisition thereof by a Iury the same force found the said Iust may reseise the said lands cause restitution thereof to be made to the party so put out for in this case the same cōplaint may be made to the said I. of P. aswell by him in the reuersiō as by the tenāt for terme of yeres or copiholder séeing he in the reuersiō who is disseised of his fréehold by this forcible entry is may as well be termed the party grieued as the tenant for terme of yéeres or the copyholder for their said particular estates And when the Iustice of peace hath made restitution the particular tenant for terme of yeares or copyholder and also he or they in reuersion shall hold and enioy their said seuerall estates in the same lands 4. 5. P. M. Di. f. 142. in such sort as they did before the said Forcible entry made But if tenant for terme of yeares be expelled out of that land which he so holdeth for the terme of yeeres he in the reuersion cannot bring an action of Forcible entry vpon the statute of 8. H. 6. for the same although it be a disseisin to him for that the expulsion is not done immediatly to him Fit Na Br. 248. 9. H. 6. 19. 19 If a man do enter by force into lands or tenements He that hath title entreth by force wherunto he hath right or title to enter doth put out him who hath the freehold of the same lāds in this case he who is so
Eliz. doth repeale as well the before mentioned statute of 1. H. 5. and all other statutes before that time made and prouided for forging of false deeds Lib. in t fol. 359. and hath ordained a new action of forger of false deeds to be founded vpon that Statute and other new remedies yet seeing both those statutes were made and prouided to one end viz. to auoid and punish the enormities of forgerie of false deeds to the disherison or hurt of others though vpon seuerall penalties Notwithstanding in some cases the like reason and so the same law is to be retained in the said statute of 5. Elizab. which was before in the first mentioned statute of 1. H. 5. As in action of Forger of false deeds 9. H. 6. 26. 20. H. 6. 11. 19. H. 6. 29. 21. H. 7. 15. 37. H. 6. 37. brought vpon the said statute of 1. H. 5. Pleas in bar of forgerie it is a good plea in barre for the defendant to plead not guiltie or that he did not forge that deed or to plead that he gaue to the plaintife a gallon of wine in satisfaction of the said offence which he did accept And so it is a good plea in barre in an action of forger of false deeds brought vpon the statute of 5. Elizab. and the same plea being confessed by the plaintife or found by verdict shall not onely barre the plaintife of the recouerie of his double costs and dammages but shall also discharge the defendant of all corporall punishments to be inflicted and of the forfeiture of the issues and profits of his land to the king For this is not a release or discharge after verdict but a discharge before verdict whereby the whole Action and sute is discharged and so not within the compasse of the said statute of 5. Eliz. 14. touching the plaintifes release or discharge after verdict Where one shall haue an Action of forgery though he hath but a right to the land 18 There be some cases where a man shall haue an Action of forger of false déeds though he hath neither possession reuersion or remainder but onely a title to the land As if a man die seised of certaine land and a stranger doth abate and enter vpon the same land before the entrie of the heire and holdeth out the heire and after the same abator doth forge some charter deed or other writing sealed of the same land to the intent to disturbe trouble or defeate the estate of the heire in the same in this case the heire may haue an Action of forger of false deeds against the same stranger though he hath then no possession reuersion or remainder in the same land And so it is 4. H. 6. 25. 22. H. 6. 15. 15. Ed. 4. 24. if one man doe disseise another man of land and after doth forge false deedes c. of the same land to the intent aforesaid the dissesee may maintaine an Action of forger of false deeds against the disseisor vpon the Statute of 5. Elizab. as he might haue done before vpon the Statute of 1. H. 5. for that his right and title to the same land is molested troubled defeated recouered or charged by the same forged deed And the same law is if a man doe bring a reall Action against an other of certaine land 9. Ed. 4. 37. and before iudgement one claiming a lease for the terme of yeares of the same land praieth to be receiued to saue his terme according to the Statute of Gloucester and doth shew his said lease which lease is forged Stat. 6. Ed. 1 11. In this case the Demandant in the saide Action may haue a writ of forger of false deedes against him that claimeth the said terme though he hath as yet nothing in possession reuersion or remainder in the same land but onelie a right for this lease is forged to â—he intent to defeate him of his right viz. of his present possession 19 If a man hath neither possession reuersion remainder or title of in or to land Where no Title no Action of forgerie and yet will bring against another an Action of forger of false deedes of the same land it is a good plea in barre for the defendant to pleade 21. H. 6. 51. 8. H. 6. 34. that hée himselfe is seised of the same land without that the plaintife hath any thing therein for if the plaintife hath nothing in the freehold or inheritance of the land nor any estate for yeares copihold or annuity in the same then he cannot be the party grieued in that Action neither his right title or interest of in or to the same can be molested troubled or defeated recouered or charged And the same law is if a man hath in land no mediate or immediate estate expectant vpon any lease or leases for life liues or yeares nor profit right of entry but onely a possibilitie 33. H. 6. 22. As if A. doe giue land to B. and the heires of his body lawfully begotten the remainder thereof to C. and his heires for euer If E. doe forge a deede containing that A. gaue same land to the said B. and the heires of his body lawfully begotten the remainder thereof to him the said E. and his heires for euer In this case C. cannot pursue an Action of forger of false deedes against E. during the liues of B. or of any of the heires of his body lawfully begotten for the said forgery séeing that during the said time his right title or interest into that land is not molested troubled defeated recouered No Action in respect of a possibilitie or charged for that he hath therein during that time but onely a possibilitie which possibilitie it may be shall neuer come into Esse And further C. cannot for the said forgery recouer double costs and dammages according to the said Statute of 5. Eli. for that he is not as yet a partie grieued nor damnified nor hath sustained any dammages neither peraduenture euer shall if B. and his heires doe continue from one generation to another and not die without issue of their bodies c. And of a bare possibilitie no value can be made neither single or double dammages assessed 18. H. 6. 5. 9. H. 6. 26. Kel fol. 114 20 If there be two Ioyntenants or tenants in common of land and a stranger doth forge a déede concerning the same land Forging of a déed touching ioyntenants land if one of those Ioyntenants or tenants in common doe bring an Action of forger of false déedes against the offender and the Defendant doe pleade that another hath an estate in Ioyntenancie or in common with the plaintife who is in full life this writ shall abate for séeing this Action is but in the nature of an Action of Trespas wherein the plaintifes are onely to recouer dammages Ioyntenants and tenants in common must ioyne in the same Action for though their right in
right to another and if any doe and bée attainted thereof the taker shall forfeit to the King so much of his lands and goods as doth amount to the value of the part that he hath purchased for such Maintenance and to obtaine that any person that will shall be receiued to sue for the king before those Iustices before whom the suit doth depend and the iudgement shal be giuen by them But it may not be vnderstood in this case Pleaders may giue counsell for their fées that a man may not haue counsell of pleaders and learned men for his fée nor of his next friends And after to the intent to impose a sharper punishment vpō such as should be offendors in Maintenance Champerty or the like by a statute made Ann̄ 33. E. 1. it was enacted St. 33. Ed. 1. That if any person do take vpō him for Maintenance Champerty or the like bargaine any manner of suit or plea against another The punishment of champertors is attainted of such assumption suit or bargaine or of consent thereunto he shal be thrée yeares imprisoned and further punished at the kings pleasure 8 And so it appeareth by the foresaid statutes that it is Champerty Fit Nat. Br. 171. 7. Ed. 3. 9. Fit champ 6. where a man by couenant or agréement made by writing or word What is chāperty what not doth bargaine to haue parcell of the land debt or other thing which is in suit if it be recouered to aid and maintain the party to that suit and in this case he that is the other party to that suit oppressed or grieued by this Maintenance may prosecute a writ of Champerty against the same offendor 9. H. 6. 64. or a writ of Maintenance at his choice for euery Champerty is Maintenance but euery Maintenance is not Champerty And in this case of Champerty he that selleth his land or demiseth his land for life or yeares or any part thereof during the time that the same land is in suit shall be punished according to the foresaid statute of 28. Ed. 1. as well as he that purchaseth the same land Fit champ 5. 30. Ass p. 5. 8. Ed. 4. 13. And the writ of Champerty may be brought against the buyer alone or against the seller alone And it is all one penalty where he selleth his land for mony or other consideration and where hée fréely doth giue his land for if it be giuen during the time that the land is in suit it is Champertie for the Law doth prohibite euery man to obtaine land when it is in suit But if a man purchase land after iudgement it is no Champertie for then there is no suit depending touching that land and if a man that is learned in the Law and doth giue counsell therein 13. H. 4. 19. doe take part of the land that was in variance of his client for his fées after the same is recorded this is no Champerty So that the bargaine be made after the recouery of the land and not depending the suit 47. E. 3. 9. 7. E. 4. 15. And if a man doe bring an action against another and do recouer the thing in question against the defendant yet the plaintife may haue an action of Maintenance against euery person that shall maintaine the defendant in that suit though he hath lost nothing by that Maintenance for that the same Statute of 28. Edw. 1. is a prohibition of Champertie And if a man doe bargaine for land before any suit is commenced for the same and after a suit is prosecuted against the tenant of the land for the same Fit champ 15. if the same tenant doe make a feoffement or other assurance to the purchasor according to his bargaine of the same land during the time of the same suit yet this is no Champertie For in this case the seller did not assure this land to the purchasor vpon couenant to haue Maintenance but to performe his former bargaine and the sale was before the suit though the performance thereof was after And if a man doe make a feoffement of land to others to his owne vse 8. E. 4. 13 during the time that a suit is depending for the same land this is no Champertie for the feoffement was not made to haue Maintenance in that suit but to haue the possession of the land to bée transferred to others and yet to the same vse it was before And a man may giue land to his sonne in Franke-marriage 6 E. 3. 33. or for the terme of his life during the time that a suit is depending against him of the same land and it is no Champertie for that the words of the statute of Anno 28. Edw. 1. be But it is not intended that a man shall not haue counsell of pleaders and of learned for his fée nor of his next friends and the father is bound to relieue and helpe his sonne as much as he may and it is no Maintenance nor Champertie in him to assure the land to his sonne nor in the sonne to take it 21. Ed. 3. 52. And in a writ of Champertie it is a good plea for the defendant to plead That he purchased the land of him who recouered it for his money and not for Champertie to maintaine the suit And if a man doe make a lease for the terme of life of land Fit champ 14. and after the tenant for life is impleaded for the same land and depending that plea the tenant for life doth surrender his estate for life to him in Reuersion this is no Champertie 6 Maintenance may also bée committed in other sorts then be aforesaid Maintenance by Embracery viz. by Embraceors St. 33. Ed. 1. and by Iuries By the Statute of Anno 33. Edw. 1. an Embraceor is described to be one that commeth to the barre with the party and speaketh in the matter and is there to suruey the Iurie And he is accounted an Embraceor Fit Nat. Br. 171. who will threaten the Iurie or any of them if they doe not giue their verdict by his direction and he also who is a procuror of a Iurie to appeare 13. H. 4. 19. that is commonly called a leader of Enquests And the punishment of Maintenance both in Embraceors and Iurors is assigned by the Statutes of Anno 34. Edw. 3. Anno 38. Edw. 3. whereby it is ordained St. 34. E. 3. 8. 38. Ed. 3. 12. That if any Iuror sworne in Assises Maintenance by Iurors or other Enquests to be taken betwéene the King and the party or betwéene party and party doe by himselfe or any other take any thing of the plaintife or defendant to giue his verdict and thereof is attainted at the suit of the party which will sue for himselfe or for the king or of any other person entring his plaint by Bill immediatly before the Iustices before whom the Iurie was sworne the
lessor of the remedy which the said statute of Anno 4. H. 7. did giue him viz. to make his entry or to pursue his action within fiue yeares which he could not do being ignorant of the lease for life which his tenant had made of this land to a stranger and also conceiuing that the lessée hauing land of his owne fée simple in the same towne he leuied a fine of that land which hee might lawfully doe And the deceit and fraud in this case is the more odious because it was practised by the lessée against his lessor and by the copyholder against his Lord who is by the law bound to do fealty to the lessor and Lord which is a bond of confidence and a linke of trust And if a man seised of land in fée Fit Fines 120. do make a lease to another thereof for terme of life and the lessée for life doth leuie a fine therof to a stranger he in the reuersion may enter into the same land for a forfeiture and put forth the conusée in the fine and auoid the fine for it was leuied by deceit to defraud him of his reuersion If a fine be leuied of lands to secret vses to deceiue the purchasor of the same land it may be auerred to be leuied by fraud and so by the statute of 27. El. 4. auoided St. 27. Eli. 4. And so if a fine be leuied vpon an vsurious contract and that be auerred the same fine shal be void by the stat of 13. Eliz. 8. St. 13. Eli. 8 A fine leuied of ancient demesne lands to defraud the Lord. 5 The law is as prouident to protect mens seigniories rents and seruices from euiction by deceit as she is their lands and tenements knowing that a fine in some cases leuied by couin of the one may be as preiudiciall to his inheritance as of the other hath therefore ordained seuerall remedies to redresse seuerall wrongs as if a man seised of lands in ancient demesne do leuy a fine thereof at the common law to another this is a deceit to the lord of that manor of whom the said lands be holden 21. Ed. 3. 20 Fit Nat. Br. 98. therefore he may haue a writ of Deceit against the cognisor and the tenant of the lord thereby auoid the said fine and then he that leuied the said fine shall be restored to the possession and the title which he had before in the same land and also the same land shall returne and become auncient demesne as it was before for that the said fine shal be vtterly void 21. Ed. 3. 56. And he that is lord of a manor of auncient demesne but for the terme of his life only may maintaine this writ of Deceit And so may he in reuersion if tenant for the terme of life doe not bring it during his life and either of them by his said writ may auoid the same fine for by the leuying of a fine at the common law of lands in ancient demesne 8. E. 4. 6. or by recouerie of them at the common law the same lands do become Franke fée and pleadable at the common law and so the lord should be deceiued of his right and loose his seigniorie in them And the writ of Deceit will auoid the said fine or recouerie because the fine was leuied and the recouerie was suffered coram non iudice in deceit of the Lord viz. not before that Iudge nor in that Court where they ought to haue béene 17. Ed. 3. 31. 7. H. 4. 44. 8. H. 4. 23. Fitz. Na. Br. 98. But if a man seised of lands whereof parcell be auncient demesne and parcell Franke fée doe leuie a fine at the common law of both parcels in this case though the Lord of the auncient demesne doe by his writ of Deceit auoid the fine for so much as is ancient demesne yet the residue of those lands which be Franke fée shall continue in force for a fine leuied of them was no wrong or deceit to any 6 And the same law is where land is recouered by deceit A writ of Deceit to auoid a recouery as if one man do bring a Praecipe quod reddat against another and demaund certaine land by force whereof the tenant ought to be summoned to be before the Iustices at a certaine day and the shirife doth returne the tenant of the land against whom the said Praecipe is brought Fit Nat. Br. 97. summoned whereas in truth he was not summoned by which false returne and deceit of the shirife the demaundant doth vpon the Graund Cape recouer seisin of the land by default of the tenant in this case the tenant to whom this deceit is done 3. E. 3. 28. Fitz. Deceit 49. may after iudgemēt giuen for the demaundant haue a writ of Deceit against him that did recouer and against the shirife for his false return And by this writ of Deceit the tenant shal be restored to his land againe 18. E. 4. 11. so that it be brought during the life of the summoners viewers and pernors or any of them for if it bee not brought vntill all the summoners viewers and pernors be dead it will not lye for after the death of them the tenant shall not haue a writ of Deceit for proces shal be awarded against the summoners viewers and pernors to appeare in Court and by the examination of them it is to be tried whether the tenant was summoned or not 50. Ed. 3. 16. 8. H. 6. 1. Fitz. Deceit 48. Fitz. Deceit 32. 33. 34. 46 for the summons must be made by two summoners at the least and two viewers And if any of them did not their duty then the writ was not executed as it ought to haue béene and therefore the plaintife in the writ of Deceit ought to be restored But the K. shall haue the issues of the land in the meane time And if the demaundant who did recouer by the shirifes false returne do make a feoffement of the land then the writ of Deceit must be brought against the demaundant the feoffée and the shirife and if the demaundant that doth recouer 8. E. 3. 6. 10. Ed. 3. 43. the shirife also be both dead yet the writ of Deceit may be brought against the heire of the demaundant and the tenant of the land if the summoners viewers and pernors be liuing And if a man do lose his land by default in a Praecipe quod reddat Fit Nat. Br. 98. Fitz. Deceit 43. 80. whereby he was not summoned and then dieth his heire may haue a writ of Deceit as well as his auncestor and shall haue restitution and the vouchée The vouchée may haue a writ of Deceit where he doth loose by default if he were not summoned 7 And so it is if a man sue a Scire facias against another Deceit to auoid a recouerie vpon a Scire facias
dispose or otherwise imploy or suffer or cause to be paid disposed or imploied to any of the foresaid vses or to any of the like vses aboue the terme of 20. yeares next after the first making and beginning of any such vses shal be vtterly voide But for the preuenting of collusion and fraud which might bee deuised for the further establishing or corroboration of such vses by the said Statute of an 23. H. 8. Collaterall conueyaunces to defraud the assurance to Churches it was moreouer prouided That if any person or persons in defraud of the said Statute doth bind or ordaine any of their heirs or successors or any other persons that they shall suffer such vses intents or purposes to continue contrarie to the said statute vpon paine of losse of any other lands or of any other thing or doe deuise by any colour craft or meanes any thing to make such vses declared contrarie to the meaning of the said Act to continue for any longer time then is aboue limitted for the same Then euerie such penaltie craft colour and euery other thing that is made or deuised in defraud of the said act shal be voide for the said Statute shal be interpreted as beneficiallie as may be to the destruction or vtter auoyding of the vses aboue remembred and of all other like other then such as are before expressed Co. lib. 1. 26 Notwithstanding the foresaid Statute of An̄ 23. H. 8. To what vses lands may be giuen it is lawfull for any person at this day to giue his lands tenements or hereditaments to any person or persons to his or their heirs for to find a preacher for the maintenāce of a Schoole for the reliefe of maihemed souldiers for the sustentation of poore people for the reparation of churches highwayes bridges cawseis for the discharge of the poore inhabitants of a towne of cōmon charges for to make a stock for poore labourers in husbandrie poore apprentices for the mariage of poore maids or for such other charitable vses for the said stat was made onely to restraine the assuring of lands to superstitious vses and not to charitable vses And in this case it shal be expedient that the feoffor which doth assure his land to any of the vses aforesaid doe reserue to himselfe some annuall rent or take some money of the feoffées at the first for then the feoffement or assurance shal be good to the feoffées and their heires though the vse be vnlawfull And it appeareth by the stat made an 43. Stat. 43. El. 4. El. that they be accounted good and charitable vses no superstitious vses to giue lands tenements rents annuities profits hereditaments goods chattels money and stocks of money for the reliefe of aged impotent and poore people or for the maintenance of sicke and maihemed souldiers mariners schooles of learning frée schooles schollers in Vniuersities or for repaire of bridges ports hauens cawseys churches sea-bāks high waies or for education or preferment of orphans or for or toward reliefe stocke or maintenance for houses of correction or for mariage of poore maids or for supportation helpe ayd of yong trades-men handicrafts-men and persons decaied or for reliefe or redemption of prisoners or captiues or for aid or ease of any poore inhabitants concerning paiment of fifteens setting out of souldiers and other taxes For the said Stat. of 43. El. doth giue authoritie to the L. Chauncelor the L. Kéeper c. to the Chauncelor of the Duchie to award commissions from time to time into all or any parts of this Realme to certaine persons to enquire of al singular such gifts assignments appointments and of the abuses breaches of the truce negligences misimployments not imploying concealing defrauding misconuerting or misgouernment of any lands tenements rents c. goods chattels money c. heretofore giuen or assigned or which hereafter shal be giuen limited or assigned to or for any the charitable or godly vses before rehearsed And after such enquiry hearing and examining thereof to set downe such orders iudgements and decrées as the same lands tenements rents goods money c. may be duly and faithfully imployed to and for such of the charitable vses and intents aforesaid respectiuely for which they were giuen or appointed by the donors and founders thereof 26 Because when tenants for terme of life tenants in dower or by the curtesie of England or tenants after possibilitie of issue extinct were impleaded they would often be of couin with the demandants that the tenemēts demanded should be recouered against them they would not pray in ayde nor vouch to warrantie them in the reuersiō but plead in chiefe such a plea wherby they knew the tenements should be lost for the preuention and eschewing of which couin St. 13. R. 2. 16. by a stat made an 13. R. 2. it was ordained That if any such tenant be impleaded and he in the reuersion come into the Court and prayeth to be receiued to defend his right at the day that the tenant doth plead to the action or before he shal be receiued to plead in chiefe to the action without taking delay by voucher ayd-prayer nonage or other delay whatsoeuer Couin by a particular tenant to defraud him in the reuersion so that after such receipt he shal haue no delay by protection essoine of the Kings seruice or common Essoine but the sute shal be hastened as much as it may be by the lawe And dayes of grace shal be giuen by discretion of the Iudges betwixt the demaundant and him which is receiued and not the common daies giuen in pleas of land except the demaundant will thereunto assent to the intent the demaundant shal not be too much delaied which must plead with two aduersaries And he in the Reuersion which praieth to be receiued shall finde sureties for the issues of the Land aswel where the receite is counter-pleaded as where it is grauted Stat. West 2. 13. Ed. 1. 3 And by the Statute of Westminster 2 it was established That if by default or yeelding of such tenant in dower or c. iudgement shal be giuen then the heyres or they which haue the reuersion shal recouer after the death of such tenants by a writ of Entrie ad communem legem The wiues receit vpon the husbands default And by the same Statute of Westminster 2. it is also ordained That if in an Action brought against the husband and the wife of lands which bee the right of the wife the husband will absent himselfe and will not defend his wiues right or will against his wiues consent yeeld the land If the wife wil come before iudgement and be ready to answere to the demaundant and to defend her right she shal be thereunto admitted And for the further auoiding of Couin in Recoueries suffred by particular tenants by the Statute of Anno 14. Eliz. it was enacted Stat. 14. El. 8.
shall willingly and wittingly put in vre auowe maintaine iustifie or defend the same or any of them as true simple and done or made bona fide and vpon good consideration or shall alien or assigne any the lands tenements goods leases c. to them conueied or any part thereof shall forfeit to the Queene c. and the partie grieued by such fraudulent feoffement gift bond suit c. one yeares value of the said lands c. leases rents or other profits and the whole value of the said goods and cattels and so much money as shall be contained in such couenous and fained bond to bée recouered by A. I. B. P. c. wherein no W. E. P. c. And béeing thereof lawfully conuicted shall suffer imprisonment one halfe yeare Common recoueries without Baile or Mainprise But common Recoueries had against Tenant in taile or other tenant of the fréehold of lands the Reuersion or Remainder or right of Reuersion or Remainder whereof then shall bée in any other person shall as touching such person and his heires which hath the Reuersion or Remainder thereof be of like force and none other Voucher in Formedon as the same should haue béene if this Act had not béene made And no estate or conueyance by reason whereof any person shall vse any voucher in any writ of Formedon shall bée made void by this Act But euery such voucher in any writ of Formedon shall be of like force as if this act had not béene made Lands or goods assured bona fide and vpon good cōsideration Prouided alwaies that this Statute shall not extend to any estate or interest in lands leases goods c. lawfully assured vpon good consideration and bona fide to any person or persons bodies politique or corporat not hauing at the time of such conueyance c. any knowledge of such fraud or collusion as is aforesaid Fraudulent déeds to auoid forfeitures 29 If a man to preuent a forfeiture for a felonie or vpon an outlarie Co. li. 3. 82. will make a gift of all his goods and after is attainted of felonie or outlawed these goods shall be forfeited notwithstanding this gift for this word forfeitures specified in the foresaid Statute of Anno 13. St. 13. El. 5. El. shall not be intended onely of the forfeiture of an obligation Recognisance or such like but also of euery thing which by the Law may be forfeited to the King or to a Subiect And the same Act of Anno 13. El. shall not extend onely to creditors but also to all others who haue cause of Action or suit or to haue any penaltie or forfeiture And if a man do bind himselfe and his heirs to pay to another a certaine sūme of money at a day assigned and before the day doth come of paiment Co. li. 5. 60. the obligor dieth leauing to his sonne and heire sufficient land to pay the same debt the heire doth enter and alien the same land before the obligée doth commence his suit vpon the said obligatiō If vpon the suit of the same obligation the heire do plead nothing but discent and vpon the trial of that issue the foresaid alienation be found by the Iurie to be made by fraud to deceiue the said creditor of his debt or that be pleaded the said alienation shal be void by the foresaid statute of 13. El. and the plaintife shall recouer A déed of gift must be vpon good consideration and bona fide 30 In the said Statute of Anno 13. El. there is one Prouiso St. 13. El. 5. That the said Act shall not extend to any estate or interest in lands tenements or hereditaments leases rents commons profits goods or cattels which is or hereafter shall be lawfully had made conueyed or assured vpon good consideration bona fide to any person or persons or bodies politique or corporat not hauing at the time of such conueyance or assurance to them made any manner of notice or knowledge of such couin fraud or collusion By which Prouiso it appeareth that the gift which is within the compasse of the same Prouiso must be both vpon good consideration and also bona fide And therefore whereas A. did owe to B. CC. l. and to L. a hundred pounds Co. li. 3. 80. payable by two seuerall obligations L. brought an Action of debt against A. vpon his said obligation of a hundred pound during which sute A. being possessed of goods and cattells to the valew of two hundred pounds in secret made a generall déede of gift by writing of all his goodes and cattells Realls and Personalls whatsoeuer to B. in satisfaction of his debt and notwithstanding A. continued in possession of the same goods and sold some of them and did share and brand the shéepe with his owne brand and after L. had iudgement to recouer against A. and had a Fieri facias directed to the Shiriffe of the Countie where A. dwelt who by force of the Writ came to make execution of the same goodes but B. resisted him by force clayming those to be his goodes in respect of his said déede of gift and reported that it was a good déed of gift and made vpon lawfull consideration But in the Starrechamber this was adiudged a fraudulent déede and within the statute of 13. Infallible markes of a fraudulent deede of gift Eliz. for this déed of gift had all the badges and markes of fraud for it was generall and without any exception of his apparrell bedding or any other necessary thing and the owner continued in possession of all the goods and vsed them as his owne and the déede of gift was made in secret and not sealed deliuered nor published amongst his neighbours And it was made whilest the sute was depending betwéene L. and A. And héere was a trust betwéene the Donor of these goods and the Donée for the Donor possessed the goodes and vsed them as his owne and fraude is alwayes shaddowed with trust and trust is the couer of fraud and the writing purported that the déede was made honestly truely and Bona fide which be not accustomed words in a déede of gift and vnusuall termes in any Instrument doe bréed suspition And though this was a true debt due to B. and the consideration was good yet this was not within the before specified Prouiso for that the déede of gift was not made also Bona fide for no déede shall be adiudged to be made Bona fide according to the said Prouiso which is accompanied with any trust and the words of the Prouiso be in the copulatiue vpon good consideration and Bona fide So that good consideration will not serue vnles the gift be also Bona fide viz. to the intent that the Donée shall haue carry away and enioy to his owne vse the possession of the same goodes without any trust expressed or implied and therefore whosoeuer will make a déede
of gift of goods to an other in satisfaction of his debt or for any other reasonable cause How a déed of gift may be made without fraude and will eschew therein the suspition and question of fraude or of a fraudulent gift it is expedient for him to make the same déede openly and before his neighbors or some men of credite in those partes where he doth liue and not in any secret place or before witnesses of small credite or vnknowne in that Countrie and further that the goods which shall be aliened by that déede of gift be set downe in particular and praised to the vttermost value by indifferent persons or seene that they be of the same valew and that the partie to whom the gift is made doe presently take them into his owne possession and carry them away for to leaue them in the Donors possession is an vndoubted argument of trust which trust is a principall vaile of fraude and deceit for though betwéene the Donor and the Donée this trust hath a pleasing goodly shew of confidence and faithfull and true dealing yet betwéene the same Donor and his Creditors it is méere fraude and deceit for the Donor maketh his déede of gift of trust hoping the Donée will not deceiue him who by the selfe same déede meaneth to deceiue others But as a déede of gift must be made Bona fide viz. without any trust so must it be made vpon good consideration A déed of gift must bee made vpon valuable consideration viz. vpon valuable consideration For if a man being in debt to diuers persons will make a déede of gift of his goods to his sonne his nephew or neare kinsman in blood and deliuer him possession thereof and the Donée doth take and carrie away the goods and imployeth them to his owne vse In this case the deede is made bona fide for that the Donée hath taken and carried away the goods and it is made vpon good consideration viz. consideration of Nature and blood but it is not made vpon valuable consideration for money paid or wares deliuered according to the intent and meaning of the Prouiso aforesayd And further though héere is no trust expressed by the Donor in the Donée yet the Lawe doth intend that there is a trust implied betwéene the Donor and his sonne nephew or neare kinsman to whome hée hath made this déede of gift and therefore accompteth it voyde against Creditors c. 31 Forasmuch as diuers persons after conueiances obtained and purchases made of lands tenements leases estates and hereditaments for mony or other good considerations may receiue great preiudice by reason of fraudulent and couenous conueiances estates gifts graunts charges and limitations of vses before made of in or out of lands so purchased which said◠gifts graunts c. are or shall be meant by the parties that so make the same to be fraudulent and couenous of purpose and intent to deceiue such as shall purchase the same or else by the secret intent of the parties the same be to their owne proper vse and at their frée disposition coloured neuerthelesse by a fained countenance and shew of words and sentences as though the same were made bona fide for good causes and vpon iust and lawfull considerations For the remedie of which inconueniences and for the auoiding of such fraudulent fained and couenous conueiances gifts graunts charges vses and estates and for the maintenance of iust and vpright dealing in purchasing of lands Fraudulent assurances to deceiue purchasors c. by a Statute made Anno 27. Elizab. it was ordained St. 27. El. 4. St. 39. El. 18 That all and euery conueiance graunt charge lease estate incombrance and limitation of vse or vses of in or out of any lands tenements or other hereditaments whatsoeuer had or made at any time héeretofore sithence the beginning of the Quéenes raigne that now is or héereafter to be had or made for the intent and of purpose to defraud and deceiue such person or persons bodies politike or corporat as haue purchased or shall afterwards purchase in fee simple fée taile for life liues or yeares the same lands tenements and hereditaments or any part or parcell thereof so formerly conueyed granted leased charged incombred or limited in vse or to defraud and deceiue such as haue or shall purchase any rent profit or commoditie in or out of the same or any part thereof shall be déemed and taken only as against that person and persons bodies politike and corporat his and their heires successors executors administrators and assignes and against all and euery other person and persons lawfully hauing and claiming by from or vnder them or any of them which haue purchased or shal hereafter so purchase for mony or other good consideration the same lands tenements or hereditaments or any part or parcell thereof or any rent profit or commoditie in or out of the same to be vtterly voide frustrate and of none effect Any pretence colour fained consideration or expressing of any vse or vses to the contrary notwithstanding Parties to fraudulent conueiances which doe auow the same All euery the parties to such fained couenous fraudulent gifts grants St. 27. Eli. 4◠leases charges or conueiances before expressed or being priuie knowing of the same or any of thē which shal wittingly put in vre auow maintain iustifie or defend the same or any of thē as true simple done had or made bona fide or vpon good consideration to the disturbance or hinderance of the said purchaser or purchasers leasees or grauntées or of or to the disturbance or hinderance of their heires successors executors administrators or assignes or such as haue or lawfully claime any thing by from or vnder them or any of them shall incurre the penaltie and forfeiture of one yeares valew of the said lands tenements and hereditaments so purchased or charged The one moitie whereof to be to the Queene her heires and successors and the other moitie to the partie or parties grieued by such fained and fraudulent gift graunt lease conueiance incombrance or limitation of vse to be recouered in any of the Q. Courts of Record by action of debt B. P. or I. wherein no E. P. or W. c. And also being thereof lawfully conuicted shall suffer imprisonment for one halfe yeare without baile or mainprise St. 27. El. 4. This Act or any thing therein contained shall not extend or be construed to impeach defeate make voide or frustrate any conueiance Conueiances made vpon good consideration and Bona fide assignement of lease assurance grant charge lease estate interest or limitation of vse or vses of in to or out of any lands tenements or hereditaments heretofore at any time had or made or hereafter to be had or made vpon or for good consideration and Bona fide to any person or persons bodies politike or corporate any thing before mentioned to the
contrary héereof notwithstanding St. 27. El. 4. If any person or persons haue heretofore sithence the beginning of the Q. raigne that now is made or hereafter shall make any conueiance gift grant Conueiances with condition of reuocation or alteration demise charge limitation of vse or vses or assurance of in or out of any lands tenements or hereditaments with any clause prouision article or condition of reuocation determination or alteration at his or their will or pleasure of such conueiance assurance grants limitations of vses or estates of in or out of the said lands tenements or hereditaments or of in or out of any part of parcell of them contained or mentioned in any writing déede or indenture of such assurance conueiance grant or gift and after such conueiance grant gift demise charge limitation of vses or assurance so made or had shal or doe bargaine sell demise grant conuey or charge the same lands tenements or hereditaments or any parcel thereof to any person or persons bodies politike or corporate for money or other good consideration paid or giuen the said first conueiance assurance gift grant demise charge or limitation not by him or them reuoked made voyde or altered according to the power and authoritie reserued or expressed vnto him or them in and by the said secret conueiance assurance gift or grant Then the said former conueiance assurance gift demise and grant as touching the said lands tenements and hereditaments so after bargained sold conueied demised or charged against the said bargainées vendées lessées grauntées and euery of them their heirs successors executors administrators and assignes and against all and euery person and persons which haue shall or may lawfully claime any thing by from vnder them or any of them shall be déemed taken and adiudged to be voide frustrate and of none effect by vertue and force of this present Act. St. 27. El. 4. Prouided neuerthelesse that no lawfull morgage made or to be made Bona fide and without fraud or couin vpon good consideration Morgages shall be impeached or impaired by force of this Act but shall stand in the like force and effect as the same should haue done if this act had neuer béene had or made Anie thing c. This Act nor any thing therin contained St. 27. Eli. 4. shall extend or be construed to make good any purchase Assurances of lands defeated before the Statute grant lease charge or profit of in or out of any lāds tenements or hereditaments héeretofore made void defeated or vndone by reason or any former conueiance graunt or assurance so as the partie or parties or their heirs or assignes which haue so defeated or made void the same were in actuall possession the first day of this present Parliament of or in the said lands The authority of the court of Starre-chamber tenements or hereditaments whereof or out of which any such purchase graunt lease charge or profite was made Neither this Act nor any thing therein contained shall extend in any sort to restraine or impaire the iurisdiction power or authoritie of the Court of Starrechamber A purchasor doth know before of a fraudulent déede 32 If a man seised of land in fée Co. li. 5. 60. do make a fraudulent conueiance thereof to the intent to deceiue and defraud purchasors contrary to the said Statute of Anno 27. Eliz. and doth continue in possession of it and taketh the profite of it and doth after enter into communication with a stranger for the sale of it to him and by chaunce the same stranger hath knowledge of the same fraudulent assurance and notwithstanding he doth bargaine with the same party for his land doth conclude with him and taketh his assurance from him in this case the same purchaser shal auoide this former fraudulent cōueiance made by the seller of this land though hée had notice thereof before for the said Act of Anno 27. Elizab. by expresse words doth make the fraudulent conueiance voide touching the purchasor and séeing it is within the expresse puruiew of the same Statute it is to be so taken and construed in repressing of fraud and it is not the purchasors knowledge thereof that doth make the fraudulent conueiance good which the said statute hath made voide The father maketh a fraudulent lease and the sonne selleth the land 33 If the father doe make a lease for yeares of his land by couin Co. li. 6. 72. to defraud others to whom he will demise or sell the same land as all fraudulent leases shall be intended to be made to that end and before he doth sell or demise the same land he dieth and his sonne and next heire knowing or not knowing of the said lease doth sell the same land for good consideration Then the purchasor shall auoide this lease by force of the foresaide Statute of Anno 27. Elizab. for séeing the Lawe doth presume that euery fraudulent lease is made generally to defeate purchasors lessées c. within this generality euerie particular purchasor farmor lessée c. is included And it is not materiall though he who sold the land did not make the former fraudulent lease estate or incombrance but if the estate be fraudulent the purchasor shall auoide it whosoeuer selleth the land A womans iointure made by fraud 34 And the same Lawe is if a man doe conuey land to the vse of his wife Co. li. 6. 73 for her iointure by deceit and couin to defraud a purchasor to whom he intendeth to sell the same land in this case if the same fraud be prooued by euidence or confessed by pleading the purchasor shall auoide the said wiues estate Fraudulent déeds to defeat successors of disapidations 35 Because diuers Ecclesiasticall persons being possessed of mansion houses and other buildings belonging to their Ecclesiasticall Benefices or liuings did suffer the same for want of due reparations partly to decay and partly to fall downe conuerting the timber lead and stone to their owne vses and also made déedes of gift and colourable alienations and other conueiances of like effect of their good and cattels in their life time of purpose after their deaths to defraud their successours of such iust Actions and remedies as otherwise they might and should haue had against the executours or administratours of their goodes by the Lawes Ecclesiasticall of this Realme for the redresse whereof by a Statute made Anno 13. Elizab. it was enacted St. 13. El. 10 St. 1. Iac. 25 That if any Archbishop Bishop Deane Archdeacon Fraudulent déedes to defeate successors of dilapidations Prouost Treasurer Chancellor Chaunter Prebendarie or any other hauing any dignitie or office in any Cathedrall or Collegiat Church within this Realme or any Parson Vicar or other Incumbent of any Ecclesiasticall liuing whereunto doe belong any houses or buildings which by lawe or custome hée is bound to maintaine in reparation doe suffer any
seasonable wood bée of it selfe no wast 40. E. 3. 15. 12. H. 8. 1. 10. H. 7. 5. yet if Willowes or any of the trées aforesaid doe growe within the viewe or scite of a Mannor house to defend the house from tempests and stormes or néere vnto the banke of a Riuer to defend the Banke then the felling of them is wast and the tenant of the land is punishable for the same by an action of Wast If a tenant for yeares life 20. Ed. 3. Wast 32. 9. H. 6. 66. 11. H. 6. 1. 22. H. 6. 12. 4. H. 3. Wast 140. or c. doe fell Oakes Ashes or Elmes and after he hath felled them he doth suffer cattell to come into the same ground which doe croppe and spoyle the sprouts or newe springs growing out of the rootes of the same trees then this is a newe and another Wast and punishable by the same Action of Wast that the Trees bée or by another in which Action hée in the Reuersion or Remainder shall recouer treble dammages first for the Trees felled and also treble dammages for the springs spoiled though hee can but once recouer the place wasted If the Termor doe fell greene wood to burne 20. E. 3. Wast 32. 7. H. 6. 40. 22. H. 6. 24. where hee hath dead wood sufficient it is Wast But the felling of dead wood which will beare no leaues in Summer is no Wast neither is the pulling downe of a hedge Wast or of a Pale or Wall that is vncouered Wast And the foresaid Writ of Wast proceedeth further to punish wast in Gardens Wast in gardens Therefore if the Termor doe fell and destroy Appletrees or Pearetrees growing dispersed in seuerall places of the ground demised vnto him it is no Wast for hee may fell them and take them to burne as seasonable wood 10. H. 7. 5. 21. H. 6. 46. But if he fell a whole Garden or Orchard of Apple-trees or Pearetrees or any great number therein it is wast for the wordes of the Writ of Wast doe expresse so much which be Non liceat alicui vastum vendicionem seu destructionem facere in terris domibus Boscis seu Gardinis And if any Appletrees or Pearetrees be throwne downe by the winde in an Orchard or Garden 44. E. 3. 44. and they doe leane vpon some of their boughes and the spurres or rootes of them continuing fast in the ground doe so cherrish the trees that they doe beare fruit it is wast to fell and carrie them away And to make an end of this Braunch with the wordes of the foresaid Statute of Marlebridge touching exile of men If the tenant for yeares life or c. of a Mannor doe so vexe the villeins regardant of the same Mannor by Distresses Wast in men Fines Amerciaments 29. H. 8. Dyer 37. Fit N.B. 55 Fitz. Wast 2. 113. 118. 130. 131. or otherwise that the same villeins doe depart from their Tenements this is to the disheritance of him in the Reuersion or Remainder and therefore punishable by an Action of Wast But if the Termor of a Mannor during his estate doe enfraunchise a villeine regardant to a Mannor this is no Wast punishable by the Lawe 2. H 6. 11. for after the particular estate ended he in the Reuersion or Remainder may seize the same villeine againe cum tota sequela sua If the tenant for yeares life or c. of a Manor or other land wherein there bée cottages or small Tenements doe demise the same Cottages or c. to seuerall Tenants and they doe die of the Plague and the same Leassée can get none other tenants to inhabit the same Cottages or c. whereby they doe decay and fall downe 44. E. 3. 21. Fitz. Wast 104. 105. the Leassée is not punishable therefore by an Action of Wast for that the wast which ensued by the death of those Cotiées or inferiour tenants came by the visitation and hand of God and not by any default of the Termor and therefore the said Termor doing his endeauour to reforme the defect and to prouide other tenants and béeing not able to performe it could not redresse the same 10 When one person doth bargain couenant or coÌ„clude with another for any paimeÌ„t matter cause or thing to be ê‘formed is once fully satisfied therof by money wares or other means according to the true inteÌ„t of the same agréemÌ„t if the same partie doe after sue or attempt by course of Law to obtaine a new or other satisfaction for the same contract this a plaine and manifest wrong and oppression for the said partie doth in a sort endeauour to bee twice satisfied for one debt or dutie And likewise it is an oppression and wrong if one person doe endeauour to lay a burden or charge vpon others which the Lawe of the Realme will not impose vpon them or which himselfe alone or himselfe with others ought to sustaine or when one person shall imprison or restraine another of his libertie who by law ought to bée free As if one person bée bound to another by Statute marchant or Statute Staple for the paiment of a summe of money whereof there is a defeasaunce that if the Conusor doe pay to the Conusée a lesse summe of money at a day prefixed 46. Ed. 3. 4. 47. Ed. 3. 26. 20. E 3. Fi. N.B. 105 or diuers summes at seuerall daies or doe performe certaine couenants or agreements in the said defeasaunce or in certaine Indentures made betwéene them specified and the conusor doth pay the said summe or seuerall summes of money or doth performe all the couenants in the said Indenture specified according to the purport of the said defeasaunce and that notwithstanding the Conusée doth sue execution of the said Statute against the Conusor this is a manifest wrong and oppression pretended to the Conusor Wherefore the Conusor for his reliefe may haue an Audita querela directed out of the Chauncerie to the Iustices of the Kings Bench Oppressions redressed by an Audita querela or Common Place comprehending the whole matter and charging them to call before them the parties Plaintife and Defendant and to doe them iustice according to the Law and Custome of the Realme which is either to graunt a Supersedeas to stay the Execution or to set the bodie of the Conusor at libertie if hée be taken and imprisoned therefore and to discharge his lands and goods of execution if the suggestion of the plaintife in the said writ be prooued to bée true And if the Conusée in the case aforesaid doe take away the defeasaunce or Indenture from the Conusor 47. Ed. 3. 26 Fi. N.B. 103 and after extend the same Statute against him this is likewise an oppression and to bée redressed by an Audita querela And in like sort if the Conusée after the said Statute acknowledged doe make a Release or Acquitance of the same to the Conusor and
in the same cases either he is or is offered to bée oppressed and wronged And in all the same cases the oppressor endeauoureth to make the Lawe his colour and instrument to abuse him 11 Forestallers Ingrossers and Regrators deserue to bée reckoned amongest the number of Oppressors of the common good and publike wealth of the Realme for they doe endeauour to inrich themselues by the impouerishment of others and respect not how many doe lose so they may gaine They haue beene exclaimed vpon and condemned in Parliament from one generation to another as appeareth by the Statutes of Anno 51. H. 3. Anno 34. Ed. 1. Anno 25. Ed. 3. Anno 27. Ed. 3. Anno 28. Ed. 3. Anno 31. Ed. 3. Anno 42. Ed. 3. Anno 2. R. 2. Anno 6. R. 2. Anno 14. R. 2. Anno 25. H. 8. Anno 5. Ed. 6. Anno 5. El. but amongst the others specially forestallers St. 34. Ed. 1. for by the foresaid Statute of Anno 34. Ed. 1. it was ordained That no forestaller shall be suffered to dwell in any towne for hée is a manifest oppressor of the poore and a decayer of the rich a publike enemy of the countrey a Canker a Moth and a gnawing worme that daiely wasteth the common wealth And the acte and name of a Forestaller was so odious in that time that it was mooued in Parliament to haue had it established by Law That a Forestaller should bée baited out of the town where he dwelt by dogges and whipped forth with whippes But because in time it grewe in question who was to be accounted a Forestaller Oppression by forestallers ingrossers regrators who an Ingrosser and who a Regrator and what punishment former lawes had inflicted vpon them therefore to the intent that they and their offences might more certainely be laid open to the knowledge of the whole Realme and condigne punishment prouided for them St. 5 and 6. Ed. 6. 14. by a Statute made Anno 5. 6. E. 6. it was established Who is a forestaller That whatsoeuer person or persons shall buy or cause to be bought any marchandise victuall or other thing comming by land or water towards any faire or market to be sold in the same or cōming toward any city port hauen créeke or rode of this realm or Wales from any part beyond the sea to be sold or make any bargain cōtract or promise for the hauing or buying of the same or any part thereof so comming as aforesaid before the same marchandise victuals or other things shall be in the market faire citie port Hauen Créeke or Rode readie to be sold Or shall make any motion by word letter message or otherwise to any person or persons for the inhaunsing of the price or déere selling of any of the things aboue mentioned Or else disswade mooue or stirre any person comming to the Market or Faire to forbeare to bring any of the things aboue mentioned to any Faire or market citie port c. to be sold as aforesaid shal be adiudged a forestaller But by the statute of an̄ 13. El. it is ordained That the said Statute of an̄ 5. 6. Ed. 6. St. 13. El. 25. shall not extend to any wines oyles sugars spices currans or other forraine victuals brought from beyond the sea fish and salt onely except Whatsoeuer person or persons shall by any meanes regrate obtaine St. 5. and 6. Ed. 6. 14. or get into his or their hands Who is a regrator or possession in any faire or market any corne wine fish butter chéese candles tallow shéepe lambes calues swine pigges géese capons hennes chickins pigeons conies or other dead victuall whatsoeuer that shal be brought to any faire or market within this realme or Wales to be sold and doe sell the same againe in any faire or market holden or kept in the same place or in any other faire or market within iiij miles thereof shal be reputed and taken for a regrator or regrators Whatsoeuer person or persons that shall ingrosse St. 5. and 6. Ed. 6. 14. or get into his or their hands by buying Who is an ingrosser cōtracting or promise taking other than by demise grant or lease of land or tythe any corne growing in the fields or any other corne or graine butter chéese fish or other dead victuals whatsoeuer within the realm of England to the intent to sell the same againe shal be reputed and taken an vnlawfull engrosser or engrossers If any person or persons shall offend in any of the things before recited St. 5. and 6. Ed. 6. 14. and being thereof duely conuicted or attainted by the lawes of this realme The punishment of forestallers regrators and ingrossers or after the forme hereafter mentioned he or they shall for his or their first offence haue or suffer imprisonment by the space of two moneths without baile or mainprise and shall also lose and forfeit the value of the goods cattels and victuall so by him or them bought or had And if any person lawfully conuicted or attainted of or for any the offences abouesaid be thereof eftsoones lawfully conuicted or attainted then euery person or persons so offending shall haue suffer for his said second offence imprisonment by the space of one halfe yeare without baile or maineprise and shall lose the double value of all the goods cattels and victuall so by him bought or had as is aforesaid And if any person being lawfully twice conuicted or attainted of or for any of the said offences shal eftsoones offend the third time and be thereof lawfully conuicted or attainted then euery such person for the third offence shal be set on the pillorie in the city towne or place where he shall then dwell and inhabit and lose and forfeit all the goods and cattel that he or they haue to their owne vse and also be committed to prison there to remaine during the kings pleasure Prouided alwaies that the buying of any such barley bigge or oates St. 5. and 6. Ed. 6. 14. as any person or persons not forestalling shall conuert into mault Cases wherein regrating or ingrossing be tollerable or oatmeale in his or their owne house or houses or shall so be conuerted indeed or the buying of any such thing by any such Fishmonger Butcher or Poulter as concerne his or their owne facultie craft or mystery otherwise than by forestalling which shall sell the same againe vpon reasonable prices by retaile or the taking of any cattell corne graine butter chéese or any other thing aboue mentioned reserued without fraud or couin vpon any lease for terme of life or liues yeare or yeares heretofore made or hereafter to be made or the buying of any wine or other dead victuall aboue mentioned being apt and méete for mans sustenance by any Inholder or other victualler to sell the same by retaile within his house or to any of his neighbours for their sustenance for reasonable
any person which shall haue shéepe at the time of the marriage by reason whereof the said person shall by such meanes haue aboue the number of 200 then he shall loose no penalty for hauing aboue the number of 2000. shéepe by such meanes so that within one yeare next after such aduancement he do put to sale or otherwise dispose so many of the said shéepe so to him aduanced or els of his owne shéepe that he had before so that aboue one yéere he shall not kéepe haue or occupy by any such means or otherwise by any fraud any more number of them then is before limitted vpon paine before rehearsed If any person by his last Will giue to any child within age any number of shéepe Sheepe giuen by will to a child within age appoint them by his last will to be kept by his executors St. 25. H. 8. 13. or by any other person vntill the foresaid child shall come to a certaine age limitted by his last will then after the death of the Testator the said shéepe so being in possession of the executors or of any other person to the vse of any such child within age for the time that he shall be limitted to haue the said shéepe by the will of the Testator shal not be accounted against the said executors nor any person hauing the shéepe for the intent aforesaid any of the number of the said shéep prohibited by this act Euery person being the kings temporall subiect 25. H. 8. 13 or borne vnder his obeysance Shéepe kept vpon inheritance or fréehold which shall haue or be seised of inheritance in possession or in vse or that shall haue a iointure in vse or in possession or shal be tenant in dower or by the courtesie of or in any manors lands tenements pastures féedings or liberty of foldage within any part of this realme of England Wales or the Marches of the same may haue kéepe maintain vpō the same his own demesn lands all other his pastures féedings fold courses which he so hath as many his own shéepe lambs in number to his own proper behoofe as he lawfully might haue had kept vpon the same at any time before the making of this act In case any such person hauing any such estate in vse or in possession of 25. H. 8. 13 or in any lands He that kéepeth his number vpon his inheritance shall not keepe vpon a farme tenements pastures féedings or liberties of fold courses do kéep vpon the same the number of 2000. shéepe or aboue then he shall not in any wise kéepe or haue any shéepe aboue the number of 2000. vpon any lands pastures or féedings which he shal haue in farme or otherwise vpon pain of forf for euery shéepe besides the said number of 2000. 3. s̄ 4. d. In case the said demesne lands tenements pastures féedings 25. H. 8. 13 liberties of fold courses of any person before rehersed Shéepe kept vpon demesns and farmes suffice not for the féeding pasturing kéeping of 2000. shéepe then any such person may haue or féed vpon the said demesn lands vpon his farme holds which he lawfully may haue to the said number of 2000. shéepe not aboue vpon paine of forf for euery shéepe aboue that number 3. s̄ 4. d. It shal be lawfull to euery person kéeping a houshold 25. H. 8. 13 to haue frō time to time such conuenient number of shéepe Shéepe kept for the maintenance of a mans house aboue the number expressed in this act as shal be necessary for the only expences of his houshold to be prouided kept and fed in and vpon his own lands or other lands such as he lawfully can prouide for in farme or otherwise so that he at no time shall haue for the expence of his houshold or by colour of the same aboue the number to him limitted by this act any number of shéepe moe then shall suffice for the onely expences of his household for one yeare without fraud or couin And it is lawfull for all spirituall persons Spirituall persons to kéepe such and as many shéepe vpon their owne lands and after such manner and none otherwise as they might haue done before the making of this act 20 As it is a thing farre vnfit and not consorting with their function that spirituall persons who ought to liue of the altar and to be chiefely imployed deuoted to the seruice of God the administration of his sacraments preaching of his Word instruction of his people should busie themselues with taking of farmes buying selling for gaine in faires markets occupying of Parsonages or Vicarages by farme or with the vsing or keeping of Tanne houses or Brewhouses So it is an oppression and meanes of impouerishment of other temporall persons who do chiefely or partly liue by the same trades and therfore by a stat made An. 21. St. 21. H. 8. 13 H. 8. it was enacted Oppression by spirituall persons in taking of farmes That no spirituall person shall take to farme to himselfe or to any person to his vse of the lease or grant of the K. or any other person or persons by letters patents indentures writings by word or otherwise by any manner of means any manors lands tenements or other hereditaments for terme of life yeares or at will vpon paine to forf for euery moneth that he or they to his vse doe occupy such farme by reason of such graunt or lease x. l. to the king and him that will sue to be recouered in any of the kings Courts by A.B.P. I. wherein no W.E.P. Oppression by thē in buying and selling And that no spirituall person of what estate or degree soeuer he be shall by himselfe or any other for him to his vse bargaine and buy to sell againe for gaine in any markets faires or other places any manner of Cattell Corne Lead Tin Hides Leather Tallow Fish Wooll Wood or any manner of victuall or marchandize of what kind soeuer they be vpon paine to forfeit treble the value of the things so bought to sell againe to the king and him that will sue to be recouered in any of the kings Courts by A.B.P.I. wherein no W.E.P. But a spirituall person who without fraud buyeth any horses cattell goods c. with only intent at the buying thereof to imploy the same to the necessary apparrell of himselfe his seruants or houshold or for the only occupying or manuring of his glebe or demesne lands annexed to his church or for the necessary expences of his household and after the buying or exercising thereof misliketh the same that they should not be good profitable and conuenient for the purposes abouesaid for the which they were bought then he may lawfully bargain and put them away And also other spirituall persons not hauing sufficient glebe or demesne lands in their owne hands in the right of
adiudged Felonie or Trespasse according to the law of the land in auncient time vsed and according as the case doth require And if in such case or any like the Iustices haue adiudged it Treason before this time and there by the offendors lands and tenements haue come into the kings hands as forfeit the chiefe Lords of the fée shal haue their Escheats of those tenements which be holden of them whether the same tenements be in the hands of the King or of any other by gift or in other manner sauing to our Lord the King the yeare and wast and the forfeiture of the chattels which doe belong vnto him in the cases aforesaid And in such cases writs of Scire facias shal be awarded against the tenants of the land without any other originall and without allowing the kings protection in the same suit And touching those lands which be in the kings hands there shal be writs granted to the Sherifes of the Counties where the lands be to deliuer them out of the kings hands without delay 2 By which statute it doth appeare that there be two sorts of Treason by the auncient common lawes of this Realme viz. High Treason and Petit Treason High treason High Treason when any of the grieuous offences aforesaid be done or attempted to the vniuersall and generall Maiestie of gouernment that is to say to the bodie of the whole Commonwealth or to the King the head ruler and directer thereof Petit treason in his person wife issues or authoritie Petit Treason is when the bloudie and grieuous offence of wilfull murder is done and committed by an inferiour person and one in subiection to another that hath a dominion or a kind of Maiestie in gouernmēt ouer the same partie And though sithence the before mentioned Statute of 25. Ed. 3. diuers other offences haue béene made Treason by the Statutes of 21. R. 2. 3. H. 5. 4. H. 5. 8. H. 6. 14. H. 6. 20. H. 6. 4. H. 7. 22. H. 8. 26. H. 8. 27. H. 8. 28. H. 8. 31. H. 8. 32. H. 8. 33. H. 8. 35. H. 8. 1. Ed. 6. yet euerie of the succéeding ages were soone wearie of the sayd new Treasons and thought that the grieuous paines and most hainous punishments of them were too heauy and vnsupportable for the Subiects of this Realme to endure As the Lords and Commons in the Parliament holden Anno 4. St. 4. H. 4. 10 H. 4. 10. did complaine that diuers paines were ordained to be Treason by the statute of 21. R. 2. insomuch that no man did know how he ought to behaue himselfe to doe to speake or say for doubt of such paines and thereupon it was enacted That in no time to come any treason shall bée adiudged otherwise than was ordained by the Statute of 25. Ed. 3. And long time after the makers of the statute of Anno 1. Mar. considering and rehearsing that the state of euerie King Ruler and Gouernour of any Realme Dominion or Comminaltie consisteth more assured by the loue and fauour of the subiects towards their Gouernour than in the dread and feare of lawes made with rigorous paynes and extreame punishment and that lawes iustly made for the preseruation of the Commonwealth without extreame punishment or great penaltie are more often obeyed and kept than lawes and statutes made with great and extreame punishments and in speciall such lawes and statutes so made whereby not only the ignorant vnlearned and rude people but also learned and expert persons minding honestie are often trapped and snared yea many times for words only without any other fact or déed done or perpetrated and therefore to the intent that the seueritie of such like extreame dangerous and perillous laws might be abolished A repeale of former treasons and adnulled St. 1. M. by the said statute of Anno 1. M. Parl. 1. it was ordained That from thenceforth none act déed or offence being by act of Parliament or stat made Treason Petit Treason or Misprisiō of Treasō by words writing ciphering déeds or otherwise whatsoeuer shal be taken had déemed or adiudged to bee High treason Petit treason or Misprisiō of treason but only such as be declared expressed to be high Treason Petit treason or Misprision of Treason in or by the stat of 25. E. 3. concerning Treason or the declarations of Treasons and none other Nor that any paines of death penalty or forfeiture in any wise ensue or be to any offendor or offendors for the doing or committing of any Treason Petit Treason or Misprision of Treason other than such as bée in the said stat of 25. E. 3. ordained and prouided By force of which stat made Anno 1. M. the subiects of this Realme were eased and vnburdened of al acts déeds and offences made or declared to be treason by the space of two hundred and more years before Or as it may more aptly be said of all offences made Treason by any stat or act of parliament whatsoeuer But sithence the stat of repeale made Anno 1. M. there haue béen diuers other offences made or declared to be treason by the stat of An. 1. M. 6. 1. 2. P. M. 11. 5. El. 11. 18. Offences made treason by Statutes El. 1. 5. El. 1. 13. El. 2. 23. El. 1. 27. El. 2. 3. Iac. 4. whereof the first foure were but as an addition augmentation enlargement or exposition of the before specified Treasons ordained by the common law or declared by the foresaid stat of 25. E. 3. All which said last mentioned Treasons I will set downe and expresse verbatim after I haue somewhat more particularly expressed how the Sages and Iudges of this Realme haue construed and expounded seueral branches of the said statute of explanation made Anno 25. Ed. 3. 3 The foresaid statute of 25. Ed. 3. doth confirme it to be high treason for any person to compasse or imagine the death of our Soueraigne Lord the K. the Quéen c. by which words it doth approue what a great regard and reuerend respect the common law hath alwayes had to the person of the K. which it hath endeuored religiously carefully to preserue as a thing consecrated by almightie God and by him ordained to be the head health wealth of the kingdome and therefore it hath ingrafted a déepe and setled feare in the hearts of all sorts of subiects to offer violence or force vnto it vnder the paine of high treason Leges Aluredi cap. 4. Co. li. 4. 124 in somuch as if he that is non compos mentis do kil or attempt to kill the K. it shal be adiudged in him high treason though if he do cōmit petit treason homicide or larceny it shall not be imputed vnto him as felonie for that hee knew not what he did neither had he malice prepenced nor a felonious intent And this law doth not only restrain al persons from laying
persons by him or them assembled shal be free discharged and vnpunished as well against the King as against all and euery other person and persons of for or concerning such killing maiheming hurting c. for it is homicide by iustice done and committed by persons lawfully authorised vpon such riotous and rebellious persons which after Proclamation made will not depart and seuer themselues asunder and submit and yeeld themselues obedient to the law of the Realme S. Riots 37. 5 As any man may iustifie the killing of another before arrest Killing him that is carrying to the Gaole if he wil not yeeld so may he doe after arrest if there be any ineuitable necessitie therein as if an offendor be arrested for felony 22. Ass p. 55 Fitz. Cor. 288. and when he is in leading towards the Gaole he breaketh from those that doe conduct him and flieth away and his conductors doe pursue him so that they cannot apprehend and take him againe without killing of him In this case if they doe kill him this is homicide by iustice and iustifiable for that the offendors would not yeeld to the triall iustice of the law But if he which killed the offendor procured the matter which is iustifiable for the cause aforesaid to be found before himselfe in respect of some iurisdiction which he hath to enquire of felonies Fi. Cor. 328 he shall not bée discharged vpon such an indictment found vntill he be arraigned thereof and the matter also found by verdict because he himselfe was Iudge But the law is otherwise if it were found before other commissioners 6 As a man may kill an offendor before arrest Killing a prisoner attempting to escape or after arrest if he will not yéeld so in some case a man may kil him that is vnder arrest in prison As a Gaoler came in the night with a Lanthorne in his hand to see his prisoners who before his comming had broken their yrons 22. Ass p 55 and stood all ready to kil him and did beat and euill intreat him and he hauing a hatchet in his hand therewith slew two of them and escaped from the residue This was adiudged to be well done and to deserue no punishment for this was by the Gaoler homicide done by iustice to kill them who attempted to kill him and who indeauoured to escape the triall and iustice of the law St. 24. H. 8. 5 7 It appeareth by the Statute of an̄ 24. H. 8. 5. Killing him that attempteth robbery or burglary That it is homicide iustifiable if a man doe kill an offendor which attempteth feloniously to robbe or murder him 22. Ass p. 55 26. As p. 23 32. Co. l. 5. f. 91 Fi. Cor. 303 305. in or néere any high way cart way horse way or foot way or in his mansion house or to kill him which attempteth burglarie to breake his dwelling house in the night and that the same shal be by verdict so found and tried for he shall neither loose lands goods or cattels for the death of any such euill disposed person but shal be fully discharged as if he were acquit thereof 8 To the intent that Trespassors in forrests chases parkes and warrens Killing of an offendor in a Parke warren or forrest may more charily eschew and feare to enter and trespasse in the same by a Statute made an̄ 21. Stat. 11. E. 1. E. 1. it was ordained That if any forester parke-kéeper or warreiner shall find any offendors within his Bailiwicke there wandring and doing hurt which after Huy Crie leuied to kéep the peace and obey the law will not yéeld themselues to the Forrester c. but will flie defend themselues by violence Then though the Forresters Park-kéepers and Warreiners any other comming in their companie to kéep the Kings peace endeauouring to arrest such offendors doe kil any of the same offendors he shal neither suffer death nor sustaine any other trouble or punishment therefore But if any of the said Forresters Parke-keepers or Warriners or any other by reason of contention despite or hatred will lay to any mans charge passing through his Bailiwicke that hee came thither to doe hurt whereas hee did not neither was found wandring or offending and so kill him and thereof be conuicted he shal be punished for his death as he ought to be for the death of an other being in the Kings peace And by this meanes the Forrester doth commit homicide by iustice vpon the offendor because he will not submit himselfe and yeeld to be iustified by the law 9 If the king haue an auncient Chace whereof the Lieutenants M. 15. 16 El. Dyer 327. or Kéepers haue vsed time out of the remēbrance of man as well by night as by day to hunt in the Manor of Dale adioyning to the said Chace such deare as do strate out of the same Chace into the said Manor as in the purlewe of the said chace but yet diuided from the same with hedge and ditch And after the same Manor of Dale doth come vnto the Kings hands and the King doth grant the same Manor to another and his heires and further doth grant vnto the same person frée Warreine in all his demesne lands of the said Manor Vnity of possession in a chace and a manor adioyning hauing free warrein which frée Warreine hath bin before confirmed by diuers auncient Charters with these words viz. Ita quod nullus intret in Warrennam illam ad fugandum sine licentia voluntate of the grauntée of the said Manor In this case notwithstanding the vnitie of the possession of the Chace and the Manor of D. in the king and notwithstanding the Kings grant of the manor and the confirmation of the warreine with the generall words of the Prohibition aforesaid which doe onely extend to the Subiect the kings libertie of the purlewe doth remain vnextinguished And therefore if one of the Kings Kéepers of the said Chace shall come into the said Manor of D. being purliew to fetch in his straied déere it is not lawfull for the Lord of the said manor of D. or for any of his seruants to kill him after huy and crie made to kéep the peace and obey the law and if he doe it is not iustifiable by the foresaid Statute of 21. Ed. 1. for he cannot commit homicide by iustice nor iustifie the killing of him in his Warreine who hath in a sort and to some purpose interest to come into the said ground to fetch forth his straied deere One killing another in combat 10 If in Appell of murder burglarie or other felonie the defendant doe 37 H. 6. 21 plead not guiltie ready to defend it by his body and the Appellant and Appellée doe ioyne in the combat and one of them doe kill another in battell This is Homicide by iustice and not punishable for as the law of the Realme doth allow
thereupon cause the Shirife to indite them at his next Turne Sanctuarie and Abiuration SAnctuarie in Gréeke called Asylum What Sanctuarie is and by some in Latin termed Templum misericordiae is a place priuiledged by the King or chiefe gouernor of a country for the safegard of the life of such a person as doth offend the king his Lawes crowne and dignitie royall Which priuiledged places were deuised and instituted by the lawe of mercie vpon deuotion and the great reuerence and honour that Princes chiefe Rulers had to such places wherein they graunted such priuiledges As first almighty God himselfe the chiefe Author of mercie gaue in charge to his seruant Moses when the children of Israel were in their peregrination towards the land of Promise that certaine Cities or places of refuge or Sanctuarie might be prouided for those to flie vnto Deut. 19. By whome Sanctuaries were instituted and to escape the hands of the reuengers of blood who should by mischance and not willingly slay others And after Iosua 20 the same people being setled in the same Land he caused Iosua to execute the same commandement by assigning six cities to that purpose And long time after that Mulmutius Dunwallo one of the renowned kings of the Brittons who made many most worthy lawes for the well gouerning of his subiects which were called Mulmutius Lawes at the least 440. yeares before the natiuitie of our Sauior Christ ordained for Sanctuaries places of priuiledge or defence of mans life certaine Temples and the foure great high waies which he before had caused to be made or begunne at his owne charges viz Fosse Watling stréete Erming stréete and Ikeneld stréete and in some cases and for some purposes euery plough which Franchises or Liberties Belinus his sonne did after more fully effect and confirme And some of the ancient Princes Kings or Gouernors in this Realme graunted places of defence or sanctuarie to such as should commit treason some others to such as should commit murder robberie burglarie or other offences whatsoeuer which in that point was further than the priuiledge which God gaue to his owne Sanctuarie Exodus 21 that was ordained onely for him which should kill another vnwillingly for God commanded that if any did slay his neighbor vpon malice prepenced or by assault he should be taken from his Altar and put to death 2 Abiuration is an othe that a man or woman doth take What Abiuration is when they haue committed felonie and do flie to a Church or churchyard for the safegarde of their liues choosing rather to be perpetually banished out of the realme than to stand to the Lawe and to be tried of the felony and this was one of saint Edwards Lawes that was King of this Realme before the Conquest and instituted by him which is also founded vpon the Lawe of Mercy that the Kings of this Realme did extend for the great reuerence that they did beare to the Temple of God and to places dedicated to him which was alwayes vsed sithence that time without alteration vntill the one and twentie yeare of King Henry the eight St. 21. H 8. 2 And this abiuration is an attainder in it selfe of felonie that is confessed which attainder by confession is the most strong that may be for the vehement presumption that it hath of trueth for it should be very absurd to say that he hath not committed such a felonie when the partie himselfe hath confessed it to the ouerthrow of himselfe and all his posteritie All Sanctuaries be extinguished 3 By the Statute of Anno 32. H. 8. it was enacted St. 32. H. 8. 12. That all Sanctuaries and places priuiledged which haue béene vsed or taken for Sanctuarie except parish churches and their churchyards cathedrall churches hospitalls and churches collegiate and all chappels dedicate vsed as parish churches and the Sanctuaries to euerie of them belonging and except such places and territories as hereafter be appointed to be places of tuition and priuiledge viz. Welles Westminster Northampton Norwich Yorke Darbie Launceston and Westchester shall be vtterly extinguished adnulled and voide for euer And by the Statute of Anno 22. H. 8. it was ordained St. 22. H. 8. 14. That if any person flie or resort to any parish church Cemitorie or other like halowed place for tuition of his life by occasion of any murder robbery or other felony by the same person committed and thereupon confesse any murder felonie Abiuration by the commō Lawe out of the Realme or other offence before the Coroner wherefore the same person by the Lawes of this Realme heretofore vsed should abiure and passe out of the same The same person thereupon shall abiure from all his libertie of this Realme and from his liberall and free habitations resorts and passages to and from the vniuersall places of this Realme which appertaine to the libertie of the Kings subiects vndefamed and shall forthwith be directed by the Coroner Abiuration to a place within this Realme taking and recording such abiuration to any one Sanctuary within this Realme which the same person will elect and choose there to remaine as a Sanctuary person abiured during his life and to be sworne before the Coroner so to doe and to be marked with a hot yron vpon the brawne of the thumbe of the right hand according to the statute of Anno 21. H. 8. 2. St. 21. H. 8. 2 And by the statute made Anno 1. Iac. 25. St. 1. Iac. 25 it was enacted That so much of all Statutes as concerneth abiured persons and Sanctuaries or ordering or gouerning of persons abiured or in Sanctuaries made before the fiue and thirtieth yéere of the late Quéene Elizabeths raigne shall stand repealed and be voide And so all Sanctuaries being adnulled and extinguished by the foresaid statute of 32. H. 8. 12. sauing churches and churchyards which were Sanctuaries by the common Law and sauing Welles Westminster Northampton c. erected and made by the said Statute of 32. H. 8. 12. 33. H. 8. 15. which are also sithence extinguished and adnulled by the foresaide statute of 1. Iac. 25. And therefore by no Lawes or Statutes that wée haue in force there be any Sanctuaries remaining neither can any person take the benefit of Sanctuary in any place or in any case where there is no such thing in rerum natura sauing churches and churchyards which neuer were Sanctuaries aboue fortie dayes at the vttermost and that but in certaine Cases and yet now out of vse But whether by the strict course of the common Lawes or any Statute in force they be now to any intent in force or not Quaere And for that so much of all stat as concerneth abiured persons or ordering or gouerning of abiured persons made before an̄ 35. El. be repealed and made void by the before rehearsed Statute of 1. Iac. 25. viz. the statute of 21. H. 8. 2. 22. H. 8. 14.
to him and so no other person is intituled to haue those goods the King shall haue them as confiscat according to the old text Quod non capit Christus capit fiscus And the appellant shal be thus punished by the losse of his goods for his negligence attenuating concealing of the robbers offence Confiscation by a false appeale 20 If a man bring an Appeale of Robberie against another which tooke the Appellants goods lawfully Fitz. Cor. 367. and not feloniously viz. found them in the high way it is so found by verdict in this case though the appellée hath no cause to detaine them against the appellant for that they were his owne goods yet the plaintife shall loose them for his false appeale and they shall bee confiscat to the King and also the appellant shall bée committed to prison for charging the defendant with robberie whom he did know came lawfully by the goods Co. li. 5. 110 and so for malitious séeking of a mans bloud without cause and the defendant shal be discharged 21 There is another kind of forfeiture of felons goods to the King which is called a waif A waife and that is when a felon vpon huy and cry or other pursuit after him or for feare to bee taken er otherwise to ease himselfe of carriage Co. li. 5. 109 doth without Huy and crye wayue cast away or goe from the goods that hée did steals and hath in his possession or some part thereof and doth flye away whereupon the Kings Officers or some other in the Kings right doth seise those goods Seising of a waife In this case the goods so seised be called a waife and the King shall retaine them to his proper vse if the owner of them doth not make fresh suit after the felon to attaint him for those goods And if the owner doe make fresh suit after the felon hée shall haue his goods againe notwithstanding the waiuing and seising of them And this forfeiture of goods by waife is a penaltie which the law imposeth vpon the owner of those goods for default of fresh suit against the felon and for omitting his duetie in pursuing and apprehending of the felon being a pernitious and corrupt member of the Commonwealth St. 21. H. 8. 11. And by the Statute of 21. H. 8. the Iustices before whom any felon or felons shal be found guiltie or otherwise attainted by reason of euidence giuen by the partie robbed or owner of any money goods or cattels robbed or by any other by his procurement haue power to award from time to time writs of Restitution for the said money goods or cattels as though any such Felon or Felons were attainted at the suit of the party in Appeale But if a felon doe steale goods Co. li. 5. 109 and carrie them into a Mannor and there leaue them or leaue them in his owne house or in the house of any other or in the custodie of any other or hide them in the ground or in any secret place and after doth flie these goods shall not be adiudged in law to be waiued nor shall bée forfeited for if the felon hath not the goods with him when he doth flie or doth waiue them for feare to be taken they shall not be accounted waiued or forfeited but the owner may take them againe without fresh suit for that there is no default in him 22 If a felon do steale goods and after doth waiue them The owner seiseth goods waiued the owner of them may reseise the same goods and carrie them away twentie yeres after the waiuing of them if in the meane time no Officer of the Kings nor of any Lord of a libertie 21. Ed. 4. 16. hath seised them before the owner But if any Officer of the Kings or of any Lord of a Franchise hath seised them before then the owner must sue an Appeale against the felon and so he may haue his goods againe if hée hath made fresh suit or else the owner must procure the felon to be indicted arraigned and found guiltie or otherwise to be attainted by euidence giuen by himselfe or by some other by his procurement and by that meanes obtaine a writ of Restitution to be awarded by the Iustices before whom the sayd felon shall be arraigned according to the foresaid statute of 21. H. 8. 11. And the like law is if a felon do steale goods and doth not waiue them nor any Huy and crie is made vpon him but one in the Kings right doth take the goods from the felon vpon suspition that he hath stolne them yet the owner vpon fresh suit shall haue restitution of them againe for it may be that the owner had not intelligence of the stealing of his goods a long time after they were stolne and then could not make fresh suit nor leuie huy and crie 23 There can be no waife but of goods stolne sauing in certaine cases for if one do take goods as a trespassor and doth goe from them No waife but of stoln goods no man can seise them as a waife P. 13. E. 4. 5 And therefore in an action of Trespas of goods taken away if the defendant do iustifie for a waife it is a good issue for the plaintife to ioine that the goods were not stolne And if a man do fly for a felonie and leaue his house goods yet those goods shall not be a waife for that they were not stolne And in some speciall case there may be a waife though there be no stealing Waif of goods not stolne as vpon a huy and cry leuied 29. E. 3. 29. a man that hath committed no felony doth leaue his owne goods and doth flie to a church those goods may be seised to the Kings vse for a waife No waife of goods stolne from an Alien 24 If the goods of an Alien which hath the Kings safe conduct both for bodie and goods be stolne from him and by the felon bée after wayued and refused yet those goods cannot bée claimed or seised by the Officers of the King or of any Lord of a Franchise for a waife for when the King hath graunted to the Alien safeconduct both in bodie and goods and this is a couenant betwéene the King and him then if a felon doe steale his goods and after waiue them it is no reason that the Alien should loose them and be put to sue against the felon but he must sue to the King vpon his couenant And therefore the K. cannot haue those goods as waife and by the same reason hee cannot graunt them to another neither can any haue them by prescription Forf of lands 25 As he that is attainted of Treason or Felonie shal loose his goods debts and rights Tenant for yeares so also shall be forfeit his leases for terme of yeares of lands the lands which he holdeth by extent of Statutes Recognisances or Iudgemēts his
leases for the terme of his owne or another persons life of lands T. for life And because tenant in taile is in diuers respects but tenant for the terme of his owne life T. in tayle of his lands intailed therefore if he commit Petit Treason or Felonie he shall forfeit his said intailed lands but for terme of his owne life And he that hath land in another right shal forfeit for high Treason petit Treason Murder or other felony no longer or greater estate than he hath in the same lands as a man seised in the right of his wife of laÌ„ds T. in the right of his wife or church or in the right of his church Fitz. Forf 13. shal forfeit no further estate in the same lands but during his owne estate therein as it doth appeare not onely by the rules of the common lawes but the same is also confirmed by the Statute of 5. Ed. 6. 11. hereafter rehearsed The forf of lands in tayle 26 By the common law Tenant in tayle beeing attainted of high Treason should haue forfeited the lands whereof hée was so seised of an estate in tayle but onely for the terme of his owne life and the same after his death should haue discended to his heire But now by the Statute made Anno 26. H. 8. and Anno 5. Ed. 6. St. 26. H. 8. 16. St. 5. E. 6. 11 it is ordained That euerie offendor and offendors being hereafter lawfully conuict of any manner of high Treason by presentment confession verdict or Proces of Outlawrie according to the due course and custome of the lawes of this Realme shall loose and forfeit to the King his heires and successors all such lands tenements and hereditaments which any such offendor or offendors shal haue of any estate of inheritance in his own right in vse or possession by any right title or meanes within this realme of England or elsewhere within any the Kings dominions at the time of any such Treasons committed or at any time after 16. El. Dyer 332. As if the King giue land to the husband and wife and the heires males of their two bodies lawfully begotten the remainder thereof to the heires males of the body of the husband lawfully begotten reseruing the reuersion to himselfe and the husband and wife haue issue a sonne and the husband committeth high Treason is attainted thereof and executed and this attainder is confirmed by Act of Parliament and all the offendors lands bée giuen to the King Sauing to all Straungers their right other than to the Donor in Tayle and his heirs In this case after the death of the wife the King shall haue the land for that by reason of the fathers attainder of Treason the estate Taile was forfeyted and extinguished by force of the sayd Statutes of Anno 26. H. 8. and Anno 5. Edw. 6. and the bloud corrupt An estate taile forfeited and extinguished and the heirs disabled for that in his lineall conueyance of his discent to the land hée must deriue himselfe heire as well to his father as to his mother Br. Done 61 Co. li. 1. 103 And in like sort if a man seised of lands in fée simple maketh a feoffement thereof to certaine persons to the vse of his wife for the terme of her life the remainder thereof to the vse of the heires of his owne bodie lawfully begotten after the feoffor hath issue a sonne and is attainted of high Treason and executed In this case his sonne shall not inherit this land as heire to his father whose bloud was corrupt by his attainder but the land shall be forfeited to the King by the foresayd Statute of 26. H. 8. And as tenant in taile by committing of high Treason shall by force of the foresayd Statutes of 26. H. 8. 5. Ed. 6. forfeit those lands wherof he hath the possession reuersion or remainder in tayle so shall hée likewise forfeit to the King by committing of high Treason those lands whereunto hée hath but a right in taile Pl. Com. 547. As if the King giue lands to a man Forf of a right in tayle and to the heires males of his bodie lawfully begotten reseruing the reuersion to himselfe and the tenant in tayle hath issue a sonne and dyeth and the sonne doth enter and make a feoffement in fée to a stranger of the same land and then hath issue a sonne and committeth high Treason and is attainted thereof this land shall bée forfeited to the King for by this feoffement made by tenant in tayle to a straunger there passed none other estate from the same tenant in tayle but only an estate for the terme of his owne life and so the tayle and the right of the tayle remained in the tenant in tayle and by his attainder the estate in tayle is extinguished in the Kings reuersion in fée simple And the King shall bee sayd rather to haue this land reuerted vnto him as if all the issue of tenant in tayle were dead than by forfeiture for the words of the Statute of 26. H. 8. be All persons attainted of Treason shall loose and forfeit to the King his heires and successors all lands and tenements which such offendor shall haue of any estate of inheritance at the time of the Treason committed or at any time after Sauing to all others and their heires other than the offendors in Treason their heires and successors all their rights and possessions c. which they had at the day of the Treason committed or after And by these generall words That they shall loose and forfeit all lands and tenements which they haue of any estate of inheritance and by excluding the heire in the Sauing lands tayled shall bée forfeited and the lands in this case cannot be aptly termed to be forfeited to the King and his heires where hée had the fée simple before but are rather to be sayd reuerted to the King the tenant in tayle dying without any issue which by his attainder of Treason and the corruption of his blood Co. li. 7. 33. could inherit this land And if the King by his letters Patents vnder the great Seale doe create an Earle Forf of name or title of dignitie intailed and giue him the title and honour of an Earledome to him and the heires males of his body begotten and the grantée hath issue two sonnes by seuerall women and then dyeth and his eldest sonne doth enioy the same Earledome and after committeth Treason by leuying of warre in the Realme against the King and is attainted thereof and then dyeth without issue of his bodie begotten by this attainder the same shal be forf to the K. and not discend to the brother of the half blood nor to his heirs for this Earldom and name of dignity may be intailed according to the stat of W. 2. St. 13. E. 1. 1 De donis conditionalibê° for that it concerneth land must
not yéeld to be iustified and tried by the Law but will either kill himselfe or giue cause to other men to slay him Fi. Cor. 289 290 312. S. Br. 5. for resisting and not submitting his obedience to the Law then he shal forfeit his goods so that this offence be found and presented by twelue men before the Coroner or some Iustices after his death for in this case the default is in the offendor and not in the Law that he came not to lawfull triall of his offence for the law requireth no more but that the supposed offendor shal be safely kept sub custodia legis by imprisonment or maineprise vntill it be tried whether he be an offendor or not But though the person thus slaine shall for his disobedience forfeit his goods béeing not attainted either of treason or felonie yet in the like case he shall not forfeit his lands if hee bee slaine in arresting or after arrest or otherwise die before he be attainted St. 34. E. 3. 12. as it appeareth by the Stat. of an̄ 34. Ed. 3. 12. which hath established That for forfeitures of dead persons not attainted nor adiudged in their liues their heires or land-tenants shall not be impeached or challenged nor of any other forfeiture except the forfeitures in old time adiudged after the death of the persons by presentment in Eyre or in the Kings bench or of felons of themselues or others And yet some doe affirme if a man doe leuie warre or open rebellion against the King or is assistant to his enemies in the field and then is slaine in battell he shall forfeit his lands goods And others doe adde thereunto that the same his Treason and manner of death must also after his death be found by a Iurie super visum corporis Co. li. 4. 57 Pl. Com. 262. 263. before the chiefe Iustice of England being the soueraigne Coroner of the realm and he must returne it into the Kings Bench and make a Record therof and then that person shall forfeit his lands and goods And vpon those words of the sayd Statute of 34. Ed. 3. viz. Except the forfeitures in old time adiudged after the death of the persons by presentment in Eire or in the Kings Bench or c. some doe inferre that if a presentment in Eire or in the Kings Bench be made of such an open rebellion and battell thereupon foughten and of those that manifestly shewing themselues to bée open enemies or rebels to the King were slaine therein that by the words of the same Statute they shall forfeit their lands But if a man bée arrested for counterfeiting the K. great or priuie Seale for forging of his money or for a priuy conspiracie of the death of the King or c. and is slaine in resisting the said arrest or for a rescous attempted before or after the sayd arrest hee shall forfeit his goods but not his lands And if he bée arrested for any of the sayd offences and committed to prison for the same and after doth dye in prison before he bee attainted of any of the sayd offences he shall neither forfeit lands nor goods though he be taken with the manoure viz. found hand hauing and backe bearing for though it is a mischiefe that a man committing high Treason shall forfeit neither life lands or goods yet the law doth rather beare with that mischiefe than to suffer such an inconuenience that a man onely accused or but only a supposed offendor should bée attainted and forfeit his lands and goods where being preuented by death viz. by the hand of God hee cannot come to answer and defend himselfe and by that meanes cannot bée condemned by such lawfull tryall which is meant and specified in the before rehearsed Statute of Magna charta But for the auoiding of questiō and doubt in the case aforesaid they which haue béene knowne parties to such open and manifest rebellions St. 29. H. 6. 1 St. 12. El. 16 St. 29. El. 1 St. 35. El. 5. St. 3. Iac. 2. haue béen of late yeares attainted by Act of Parliament and their lands and goods giuen as forfeit to the King As it appeareth by the stat of Anno 29. H. 6. 13. El. 29. El. 35. El. 3. Iac. The forf of the yeare day and wast 31 There is another forfeiture besides the losse of life lands annuities Fi. Cor. 310 290. 327. and goods wherewith the law hath deuised to punish those that doe commit petit Treason or Felonie and be attainted thereof which is called in Latine the forfeiture of Diem annum vastum the forfeiture of the yeare day and wast which is executed vpon the houses and lands of the offendor that be holden of any other sauing of the king That is the felons houses and lands shall bée seised into the Kings hands where they shall remaine by the space of a yeare and day and then the houses shall be throwne downe to the ground the trées shall be pulled vp by the roots the medowes shal be ploughed vp and all things which the felon did build or plant shal be cast downe digged vp Fitz. Cor. 358. and supplanted Which punishment was ordained in despight of offendors and to shew to others how much the law doth detest murderers committers of burglarie robberie and other felonies and as much as may be to terrifie and discourage others to attempt or practise the like 32 It appeareth by Bracton that by the common law the King should haue had but onely the wast of a Felons lands viz. the benefit to pull downe his houses root vp his trées plough vp his medowes and such other commodities as he could haue raised by spoyling and wasting of the felons houses trées and lands and that then the land so wasted should haue béene presently deliuered to the Lord of the fée of whom the same lands were holden which wast and spoyle was then made without redemption And after by a composition made betwéene the King and the Lords it was agréed By what means the K. came by the yere day and wast That the King should haue the benefit of the felons lands a yeare and a day to redeeme the spoyle and wast which hée might make of the sayd felons lands And the K. graunt by the great Charter made Anno 9. H. 3. St. 9. H. 4. 3 22. tendeth to the same effect viz. Wee will not hold the lands of those that bée conuict of felonie but a yere and a day and then they shall bée deliuered to the Lords of the fées And so it séemeth that King Henrie the third and King Edward the first did hold themselues satisfied with the yeare and day of the felons lands without taking the wast thereof St. 17. E. 2. 16 But after Anno 17. Ed. 2. the Kings Prerogatiues royall béeing expressed or enacted by Parliament amongst others it is ordayned That the King shall haue all the goods of felons which be
condemned and which be fugitiue wheresoeuer they bée found And if they haue any freehold it shall bée forthwith seised into the Kings hands and the King shall haue the profits thereof by the space of a yeare and a day and the land shall bée wasted and destroyed in the houses woods and gardens and in all things belonging to the same except men of certaine places priuiledged And after the King hath had the yeare day and wast the land shall bée restored to the chiefe Lord of the same fee vnlesse that before he redéeme the same yeare day and wast of the King by the paiment of a fine But there is a custome in the Countie of Glocester that after a yeare and a day the lands and tenements of Felons in that Shire shall reuert and be restored to the next heire to whom they ought to haue discended if the felonie had not béene committed And in Kent in Gauelkind the father to the bough the sonne to the plough there all the heires males shall diuide their inheritance and likewise women but women shall not make partition with men 33 By force of which stat of Praerogatiua Regis The yere day and wast of lands of what title shal be forfeited euer sithence that time the King hath had all the thrée things aforesaid viz. the yeare the day and the wast of the lands of him which was attainted of felonie as one of the prerogatiues annexed to the Crowne in all cases where the felon had such an estate in his land Bracton de Corona cap. 13. that he might forfeit the same after his death and that hee himselfe might lawfully haue made wast in the same without being impeached therefore And therefore if the felon be but tenant for the terme of life or for the terme of yeares of lands the king shall not haue the yeare day and wast of them after the felons death for then he might wast another mans inheritance But if a man that is seised of lands in the right of his wife do commit felonie and is attainted thereof the king shall haue the profits of the land during the husbands life if the wife doe liue so long Fitz. Cor. 327. And some doe affirme that the king shall haue the yeare day and wast of the said wiues lands after the felons death because the felon during his life might haue committed wast therein and for that the felon had such an estate in his wiues lands that by the common law he might in his life haue made alienation of them and driuen his wife to her Cuiin vita to haue recouered them But that séemeth to be helped if any such law were before by the Statute of Anno 32. H. 8. where it is ordained That no fine feoffement or other act made suffered St. 32. H. 8. 28 or done by the husband onely of any lands tenements or other hereditaments being the inheritance or fréehold of his wife during the couerture betwéene them shall in any wise be or make any discontinuance thereof or be preiudiciall or hurtfull to the said wife or her heires or to such as shall haue title interest or right to the same by the death of such wife But the same wife or her heires and such other to whom such right shall appertaine after her decease shall and may then lawfully enter into such lands c. according to their rights and titles therein notwithstanding such fine feoffement or other act fines leuied by the husband and wife whereunto the said wife is partie and priuie only except By which Statute the wife after the death of her husband may enter into her owne land notwithstanding any attainder forfeiture or other act done by her husband No yere day and wast of lands holden by ioynt purchase 34 A man seised of land in fée simple holden of a common person did infeoffe thereof the husband and wife and their heires the husband committed felonie and was attainted thereof the King seised the land into his hands for his yere day and wast and after the Kings said terme expired 4. E. 3. 47. the Lord of the fée of whom the same land was holden did sue in the Chauncerie to haue the same land restored to him to whom by warrant the Escheator did deliuer the same lend vpon whose possession the wife of the felon attainted did enter and the said Lord of the fée reentred vpon her whereupon the sayd woman brought an Assise against the sayd Lord and recouered the land Because the fée simple of the same land being in the wife by reason of the ioynt purchase with her husband the K. ought not to haue had the yeare and day after the felons death nor the Lord of the fée the land after by Escheat 35 If tenant in tayle Tenant in tayle generall or speciall or tenant in franke mariage of land do commit petit Treason or Felonie and is attainted thereof and executed the King after his death shall neither haue the yeare day or wast in the felons land nor the Lord of the fée shall haue the land by Escheat but after the felons death the same land shall discend reuert or remaine secundum formam doni to the next heire in tayle of the felon or to him in the reuersion or remainder thereof for in this case the felon was in effect but tenant for the terme of his owne life and thereby could not forfeit a greater estate in his land than that which he had And in in like sort if he that hath land by fresh disseisin or is tenant in fee farme of land A disseiser Tenant in fée farme A mortgagée vpon condition to pay the vttermost yearely value thereof or hath land in Mortgage to be redeemed by the Mortgager vpon condition of payment of money or other condition doth commit petit treason or felonie and is attainted thereof the King shall not haue the yeare day and wast for that would tend to the preiudice of others not partie to the offence who haue or may haue a better right and title to the same lands than the felon attainted Fi. Cor. 310 36 If a man that is owner of land in antient demesne Tenant in antient demesne which hee may sell without consent of the Lord doe commit petit Treason or Felonie and is attainted thereof the King shall haue the yeare day and wast notwithstanding that he hath vsed to surrender the land into the Lords hands by a rod in the Court vpon euerie alienation thereof But if he be owner of the land in auntient demesne of a base tenure it is otherwise Fitz. Cor. 290. 37 A man that tooke a Church for felonie escaped and the towne pursued The yere day wast without attainder and killed him because he would not yéeld himselfe and this matter was presented before the Iustices in Eyre and they adiudged that his goods and the profits of his lands
should be forfeited to the King from the time of his flying vntill the presentment and also that the King should haue the yeare day and wast S. Br. 30. But this land shall not come to the Lord of the fée by Escheat because hée was not attainted of felonie Pi. Cor. 332 38 The King shall not haue the yeare day The yere day and wast of a Clerke conuict Land of small value and wast of the lands of a clerk conuict neither shall the Lord of the fée haue the forseiture thereof for that the offendor is not attainted but onely conuict of felonie And if the land of the felon attainted be but of the yearely value of thrée or foure shillings or of so small value Fi. Cor. 327 that it will cost more to obtaine it by suit out of the Kings hands than it is worth then the King shall not haue the yeare day and wast thereof St. 17. E. 2. 16 39 The words of the foresayd Stat. of Praerogatiua Regis be If they haue any fréehold When the K. shall haue the felons yeare day and wast it shall bée presently seised into the Kings hands This word presently ought to bee intended immediatly after the Office found and not before 49. E. 3. 11. Fitz. N. B. fol. 144. And therefore if an Office of that land bee not found vntill it bee many yeares after the felons attainder yet from the time of the Office found vntill a yeare and a day after the King shall haue the Felons lands And also the King shall haue the profit of the Felons lands from the time of his attainder vntill the Office bée found thereof though it bée twentie years betwéene the attainder and the Office for the heire of the felon cannot haue it in respect of the corruption of bloud And the Lord must not haue it by Escheat vntill the King bée intituled vnto it by Office and vntill one yeare and a day after and vntill the King hath wasted it vnlesse the Lord doth agrée with the King in the meane time for the sayd yeare day and wast And moreouer Fitz. Trauerse 48. 4. E. 3. 47. the Lord cannot at any time enter into the same land as escheated vnto him vntill hée hath sued a writ to haue it deliuered vnto him out of the Kings hands for after a writ is awarded to find the land of him that is attainted of Felonie another Writ shall bée directed to enquire if the King hath had the yeare Regist fol. 165. day and wast and that beeing found the Lord shall haue the land out of the Kings hands and not before because though the attainder of the Felon was found and that the King ought to haue had the yeare day and wast yet it may bee that the King neuer had the profit thereof but was interrupted by some pâ—â—â—on or by some casuall meanes 40 This commoditie to the King and forfeiture of the felon of the yeare Fit Cor. 310 day and wast is such a benefit to the King and so firmely and highly annexed to the Crowne The yere day and wast not grantable froÌ„ the Crowne that it cannot be seuered from it or granted to any other neither can any person claime it by colour of any franchise or libertie But after the King is intituled vnto it by Office hée may graunt or commit the land to another during the yeare and day and also giue him authoritie to take the benefit of the wast What goods of felons the king shal haue 41 The words of the foresaid stat of Praerog Regis be The K. shal haue all the goods of felons which be condemned and which bee fugitiue which is as much to say as he shall haue all their goods mouable and vnmouable for the King shal haue the corne growing vpon the land of the felon attainted and the issues and profits of the land which he hath in his owne right or in the right of his wife during the time of his life or vntill he doth purchase his pardon But touching the profit of fugitiues lands there is a difference betwéene a flying presented before the Coroner and a flying found by verdict vpon an acquitall for vpon a flying presented before the Coroner Forfeiture vpon flying Fi. Cor. 296 344. he shall forfeit the profits of his lands vntill his death or vntill he be acquit or vntill he hath purchased the K. pardon but vpon a flying found by verdict vpon acquitall he shall forf no issues of his lands for by his acquitall the land is discharged and consequently the issues thereof From what time forf of land shal haue relation 42 The law hath restrained offendors in Treason and Felonie to certaine times to make alienation of their lands and goods and hath prefixed limits whereunto the forfeiture of their said lands and goods shall haue relation and yet with this difference That as soone as any Treason or Felonie is committed the offendor therein is restrained to make any alienation of his lands for then it is not his land but by the committing of the Treason or Felonie Pl. Com. 263. 30. H. 6. 5. Bracton Fitz. Forf 30. Bracton l. 2. 13. hee hath forfeited all the estate which he had therein And therefore if betwéen the time of the committing of the Treason or Felonie and of the offendors attainder thereof the offendor doth make any alienation or assurance of his land after the time that the offendor shall be attainted of the same Treason or Felonie the said assurance shall bée void whether the same attainder bée by verdict confession or outlawrie for the forfeiture of the land shall haue relation from the time of the offence committed From what time the forf of goods shall haue relation 43 The forfeiture of goods and chattels shall not looke backe so farre as forfeyture of landes nor shall haue relation from the time of the Treason or Felonie committed but from the time of the Attaynder of the Treason or Felonie And therefore if one doe commit Treason or Felony Fi. Forf 30 and in the meane time betwéene the Treason or Felony committed and the offendors attainder thereof the offendor doth giue away his goods this is a good gift for as yet they be not forfeit but be his owne to maintaine himselfe and his family vntill he be attainted of Treason or Felony and by the Law adiudged not worthy to possesse or enioy goods nor to haue sustenance And therefore if vpon a fugam fecit presented before the Coroner one doe forfeit his goods he shall not forfeit those goods that hée had at the time of the Felony committed but he shall onely forfeit those goods which he had at that day when the fugam fecit was presented against him And in like sort if one that is indicted of Felony be acquit thereof by verdict and in their verdict the Iury doe find Fi. Cor. 296 that
Maintenance in respect of neighbourhood 35 In what cases the master may maintaine his seruant In what cases the seruant may maintaine his master Deceit Couin Collusion Fraud Fol. 67. 1 The multitude and enormities of deceits and frauds 2 The reward for paines and punishment for deceits of officers towards the Law A Iudge A Clerke A Serieant A Pleader A Philozer An Exigenter No office of Iustice shall be sold or bought No man shal be Iustice of Assise in his owne County 3 Who shal be Atturneyes Sollicitors The penalty for following a suit in anothers name What acts done by Atturneyes in seuerall cases shall bee adiudged deceit 4 The Law reiecteth deceitfull and fraudulent acts A fine leuied of land to defraud the right owner thereof shall bee void 5 A fine leuied of auncient demesne land to defraud the Lord of his Seigniorie is voidable 6 How a recouery of land by deceit shal be auoided 7 A Scire facias vpon a recouery by deceit auoided A recouery of debt by deceit auoided A iudgement to auoid the meaning of a Statute The executors shall haue remedy for a deceitfull recouery against the Testator 8 Deceit vpon a recouery in a Quare impedit Deceit vpon a recouery in wast 9 Deceit vpon a recouery in a Praecipe in capite 10 Where a good Title shal be impaired by a couenous recouery thereof 11 A Warranty deuised by deceit 12 Deceit by getting of a Protection 13 Deceit by purchasing of a writ to charge another 14 Deceit by purchasing of a writ in anothers name Deceit for procuring one to sue another 15 Deceit by acknowledging of a statute in anothers name Deceit by doing of a iudiciall act in anothers name 16 Deceit by forging of a resignation of a Benefice 17 Deceit by conueying of land to one man which before was bargained to another 18 Deceit by not performing of his Warranty 19 Deceit by confession of an action wherein hee hath no interest 20 Deceit by the aliening of the goods of his wife from whom hee meaneth to be diuorced 21 Sale of goods in open Market by deceit and couin 22 A fraudulent assurance to defeat the discontinuee in tayle of his plea of Assets per Discent 23 Fraudulēt assurance to defeat a Lord of his Ward Marriage c. 24 He that is not partie to a fraud shall sustaine no losse by it 25 Deceit collusion to bring land into mortmaine Lands assured in mortmaine to Churches Chappels c. Collaterall assurances to defraud c. Which be charitable and lawfull vses 26 Couin by a particular Tenant to deceiue him in the reuersion 27 Couin by him in the reuersion to deceiue the lessee for yeares Couin to auoid a Statute or Recognizance 28 Fraudulent deeds to auoid other mens duties c. The forfeiture of parties to fraudulent deeds who doe iustifie the same Common recoueries Voucher in Formedon Estates made vpon good consideration and bonafide 29 Fraudulent deedes to auoid forfeitures shal be void 30 A deed without fraud must be made vpon good consideration and bonafide Infallible marks of a fraudulent deed of gift How a deed of gift may be made without fraud 31 Fraudulent assurances to deceiue purchasors The forfeiture of parties to fraudulent conueyances which do iustifie the same Conueiances made vpon good considerations and bona fide Conueiances with condition of reuocation or alteration Morgages 32 A purchasor doth know before of a fraudulent deed 33 The father maketh a fraudulent lease and the sonne selleth the land 34 A womans iointure made by fraud 35 Fraudulent deeds to auoid successors of dilapidations 36 An action popular sued by collusion and fraud 37 Fraudulent possessing of Bankrupts Lands Goods or Debts 38 Fraudulent administration of intestate goods 39 Fraudulent conueyances of Abbey lands 40 Seuerall deceits and frauds in marchandizes and men of trade 41 Deceit by selling of vnholesome victuall Extortion Exaction Fol. 82. 1 What is Extortion What is Exaction 2 Exaction by taking of reward for a report 3 Extortion in the Shirife Coroner or other officers 4 Extortion in a Serieant Crier or Marshall of a Iudge 5 Extortion in a Coroner 6 Extortion in a Sherife vnder-Sherife or Baylife for making of arrests c. 7 Extortion in a Sherife for sparing to returne a Iuror 8 Extortion in a Sherife for the seruing of an Execution 9 Extortion in the Chirographer of the common place 10 Extortion in the kings auditors or their Clerkes 11 Extortion in the Kings Receiuers Extortion in them who do pay fees or pensions 12 Extortion in officers of the Exchequer 13 Extortion in a Clerke of the Signet or priuy Seale 14 Extortion by officers of the faculties 15 Extortion by Gouernours vpon such as be made prentices or freemen 16 Extortion by the officers of the Court of Wards 17 Extortion in taking of Obligations for the payment of first fruits 18 Extortion by Escheators 19 Exaction by the Admirall c. vpon them who trauaile for Fish 20 Extortion by the marshall of the kings house Extortion by a seruitor of bills in the marshals Court. 21 Exaction by Muster-masters to spare the taking of souldiers Exaction by captaines of their souldiers 22 Extortion by taking of Scauage of Marchants 23 Extortion by the Clerke of the Statutes or c. 24 A preuention of extortion by atturneyes in taking of excessiue fees An atturney delaying of a suit or demaunding more then is due 25 A preuention of Extortion in stewards of Courts 26 Extortion in gaugers searchers and packers of fish Extortion in Ordinaries and their Officers for probat of Testaments Administrations c. 28 Extortion in an Ordinarie for the seale of a Citation 29 Extortion in Parsons Vicars c. for Mortuaries 30 Exaction for presenting or collating to a benefice 31 Exaction for admitting to a benefice 32 Exaction for resigning or exchanging of a benefice 33 Exaction for making of ministers or giuing licence to preach 34 Exaction for a voice in electing of a fellow or scholler into a Colledge or c. 35 Exaction by taking money to resigne a place in a Colledge c. 36 Exaction by gathering money which should discharge the fifteene of a Towne 37 Extortion by taking of an amerciament in a Court Baron 38 It is no Extortion to take lawfull fees Taking of barre fees of a prisoner discharged Taking of gloues of an offendor pardoned 39 Extortion by taking of fees of him who doth appeare gratis Oppression Fol. 91. 1 What Oppression is Oppression by disseisins Of what things one may bee disseised 2 Oppression by approuement of common Oppression by surcharge of common 3 Oppression by distresses Powndage money Distraining out of his fee. Excessiue distresse Seuerall distresses for one thing Distresse for damage fesant 4 Oppression by trespasses 5 Oppression by Nusances 6 Oppression by Rescous 7 Oppression by encroachments 8 Oppression by excessiue amerciaments 9 Oppression by committing of wast Wast in land Wast
As the law doth both condemne reiect fines and recoueries Warranties deuised by fraud which bée practised or put in execution by fraud or deceit so doth she renounce and make frustrate all sorts of warranties that be deuised or contriued vpon collusion or couin to defeat or defraud others of their iust lawfull titles for though warranties be much fauored in the law for that they be meanes to establish the title of those who be tenants of land in possession but yet if any of thē be vndertaken performed or mixed with fraud then it doth not only loose his fauor but also his force in law Co. lib. 5. 79 50. Ed. 3. 12. 43. E. 3. 7. As if land be giuen to the father for the terme of his life the remainder to his sonne heire apparant in taile and the father by couin agréement betwéene him and another to barre his sonne by a collaterall warranty of his remainder will make a lease of the same land to that other person who will make a feoffement in fée to a third person of the same land to whom the father will release with warranty and thē the father dieth the warranty doth discend vpon his sonne being of full age yet this warranty wil not barre the sonne of this land for the feoffement of the lessée for yéeres was a disseisin and the father was partaker of the offence an actor agréeing thereunto and though the release with warranty was made after the disseisin yet séeing the disseisin was made to that end the law doth adiudge the whole fact frō the beginning to be fraudulent the warranty to begin by disseisin so all that assurance to be void against the heire in taile And in like sort other warranties that do commence by disseisin be contriued to deceiue defeat the right heirs of their iust and lawfull titles 20. H. 6. 10. Regist f. 113 44. Ed. 3. 4. 12 If one do bring a Praecipe quod reddat against two other men Deceit by getting of a Protection and they do purchase a protectiō for one of thē suggesting that he is to go beyond the sea in the kings seruice whereas he doth not so but remaineth still in England and so hath done euer sithence his protection purchased by which meanes the demaundant is delayed of his suit in this case the same demaundant may haue a writ of Deceit against the said tenants for this deceit and delay and shall recouer his dammages Deceit by purchasing a writ to charge another 13 Whereas according to the course of the Chauncery Fit Nat. Br. 96. the king is to haue of euery person who doth bring against another an action of Debt of the summe of fortie pounds or more vj. s̄ viij d. for a fine and for an hundred markes vj. s̄ viij d. and so for euery hundred markes vj. s̄ viij d. and for euery Praecipe quod reddat brought of land to the yearely value of fiue markes vj. s. viij d. and so according to that rate vnlesse it be a writ of right patent If any other person doe purchase a writ in the Chauncerie in my name without my priuitie whereby I shall be charged to pay to the king for a fine any of the summes aforesaid I may haue an action of Deceit against him and recouer my dammages for this writ was obtained to put me to charges and thereby to deceiue me of so much Deceit for purchasing a writ in anothers name 14 If A. being patron of a Benefice Fitz. Na. Br. 96. Regist f. 112. 7. H. 6. 45. when the Church is void do present his Clerke to the Ordinary and B. doth disturbe him whereupon C. doth purchase a Quare impedit against B. in the name of A. returnable in the common pleas A. not knowing thereof and after doth cause the writ to be abated or A. to be nonsuit in that writ in this case A. may haue a writ of Deceit against the same C. and recouer his dammages Deceit for procuring of a suit And if B. doe procure C. to sue an action against A. whereby A. is vexed Fitz. Na. Br. 98. A. may haue a writ of Deceit against B. Deceit by acknowledging of a statute 15 If A. and B. doe come before the Mayor of the Staple Fitz. Na. Br. 105 100. Regist f. 115 or before any other Mayor of any Citie Borough or Towne hauing authority to take acknowledgement of debts and there A. doth acknowledge a statute to B. of an hundred pounds or c. in the name of C. and doth report himselfe to be C. where he is not so whereupon C. is troubled and this statute extended against him then the same C. may haue a writ of Deceit against the said A. and B. and shall recouer his dammages And so it is if another man will leuie a fine of my land in my name Deceit by doing of a iudiciall act in anothers name or confesse an action brought against me in my name or will enter into a voucher in my name 19. H. 6. 44. Regist f. 113 and confesse the demaundants action or will acknowledge a Recognizance or statute Marchant or other matter of Record in my name I haue no other remedie but by an action of Deceit But it is otherwise if he seale and deliuer an obligation in my name for I may plead that it is not my déed which I cannot doe against a Record Deceit by forging of a resignation 16 If a Notarie Fitz. Na. Br. 99. Regist f. 114 and other persons doe by agréement counterfeit the seale of any Parson or Vicar and forge letters of resignation of his Parsonage or Vicarage in the name of the same Parson or Vicar by which meanes he is remoued from the possession of the same Parsonage or Vicarage he may haue a writ of Deceit against the same forgers 20. H. 6. 36. 21. H. 7. 41. 16. Ed. 4. 9. 17 If a man doe bargaine with another to enfeoffe him of certaine lands within twenty daies Deceit by assuring of land to one man which was bargained to another or c. and after he doth enfeoffe a stranger of the same land the he with whom the bargaine was made and was deceiued therein may haue a writ of Deceit against him that so bargained and defeated him thereof And so it is if a man doe compound with another to purchase a mannor or certaine land for him and hée doth buy it for himselfe the partie may haue an action of Deceit against the same purchasor And in all cases where a man doth promise to doe a thing and he doth it falsely a writ of Deceit is maintainable against him Deceit by charging of land after sale as if a man doe promise to assure land to another and after he doth graunt a Rent charge or a common out of it or doth make a Lease for life
or yeares of it and then doth assure it to the bargainée this is deceit and a writ of Deceit is maintenable against him for it for though he hath assured the land he hath not assured it clére and discharged according to his bargaine but hath deceiued the purchasor therein 11. E. 4. 6. 18 If a man doe sell a piece of cloth to another Deceit vpon a warranty and warrant it to be fortie elles long and it is not so long the buyer may haue a writ of Deceit against the seller of the same cloth by force of his warranty although the warranty be by word onely 6. Ed. 6. Dyer 76. without writing so that it be at the time of the bargaine made But if the warranty be at another time after the bargaine made then the buyer must haue some writing to testifie this warranty or otherwise hée shall not haue a writ of Deceit against the seller 9. Ed. 4. 13. Fit Nat. Br. 98. 19 If an action of Debt bee brought against two as executors Deceit by confession of an action brought against executors whereas one of them was neuer executor nor administrator and if he which is executor do make default he who was not executor doe appeare confesse the action he that was named executor may haue against the other an action of Deceit for he hath vndertaken to plead a plea to the action of debt which he could not doe and that also to the deceit and hurt of another 26. H. 8. 7. 20 If a man doe marry a wife possessed of goods Couin by aliening of his wiues goods those be the husbands to giue and dispose at his pleasure during the mariage betwéene them But if after they be diuorced the wife shall haue her goods againe vnlesse the husband hath giuen or sold them before the Diuorce for in that case the wife is without remedie And yet if the husband doe alien those goods by couin to the intent to defraud and defeat his wife of them and after they be diuorced then shee may auerre the couin and recouer the goods from the alienée 35. H. 6. 5. Co. lib. 3. 78 83. li. 5. 83. 21 Though buying of goods in an open marketh doth worke an alteration of the property of the same goods Sale of goods in opē market by couin and doth bind the Title as well of all strangers as of the owner if the goods be sold in such a shop or place as is commonly vsed for the selling of goods of the same kind or nature yet if one man do steale purloine or iniuriously take away another mans goods and then by couin betwéene him and a third person doth sell the same goods in an open vsual place of sale 7. H. 7. 12 in an open market or faire to the third person who at the time of buying of the same goods did know that the seller came not lawfully by them or that they were not his goods this is a void sale And in respect of this Couin the first and right owner of these goods may lawfully take and carrie them away notwithstanding the said sale in open market Fraudulent assurances to defeat the discontinuée in tayle 22 If the father being tenant in tayle of certaine lands M. 34. E. 1. Fitz. Garrantie 88 will make a feoffement thereof to another with warrantie and so discontinue the estate taile hauing assets of other lands in fée simple to leaue to discend to his son and heire and then within few dayes before his death will alien the same fée simple land to his sonne and heire and to his heires vpon couin and to the intent that the same fee simple land should not be pleaded to come by discent from the sayd father to his sonne nor adiudged as Assets by discent in his hands yet this couin being found by verdict in a writ of Formedon brought against him by the heire of the land entailed shall giue the discontinuée aduantage to plead that the same heire had assets by discent in fee simple left him by his said father for that the law doth adiudge this alienation made by the father to the sonne a little before his death by couin to defraud the discontinuée of his lawfull plea to be as no alienatiō but that the father dyed seised of the same fée simple land and that it came to his sonne and heire by discent 23 Because Lords of Mannors lands and tenements haue as great right to enioy the wardship of the bodies and lands of their wards Fraudulent conueyance to defeat a Lord of his wardship as they haue to their other inheritances lands and goods and it is as great an iniury to deceiue them thereof by couin and collusion as to defeat and defraud them of their other lawfull titles therefore by a statute made at Marlebridge anno 52. H. 3. it was enacted That if any man do enfeoffe his eldest sonne or heire St. 52. H. 3. 6 being within age of his inheritance that therby the Lord might loose his wardship yet notwithstanding such feoffement the chiefe Lord shall haue his wardship And by the said statute it was further ordained That if any persons meaning to demise their lands for terme of certaine yeares that they might thereby defeat the Lords of the fee of their wardships will faine false feoffements containing that they are satisfied of the whole seruice due vnto them vntill a certaine terme and that such feoffées are bound to pay at the said term a great summe to the value of the same lands or much aboue so that after the said terme the land shall reuert to them or their heires for that no man wil desire to hold the same of so great a price yet by such fraud no chiefe Lord shall loose his wardship And if the chiefe Lords do by iudgement of the Court recouer their wardships yet the feoffees shall haue their action reserued to recouer their terme or fée when the heires shall come to their lawfull age And for the further preuention of couin in auoiding of wardships by one other stat made anno 34. H. 8. it was ordained St. 34. H. 8. 5 That if any person or persons hauing estate of inheritance of or in any Mannors lands tenements or hereditaments holdē of the king by Knights seruice in chief or otherwise of the king by Knights seruice or of any other person or persons by Knights seruice haue giuen at any time since the 20. day of Iuly anno 32. H. 8. anno Dom. 1540 or hereafter shall giue will deuise or assigne by will or other act executed in his life his mannors lands tenements or hereditaments or any of them by fraud or couin to any other person or persons for terme of yeares life or liues with one remainder ouer in fee or with diuers remainders ouer for terme of yeares life or liues with one Remainder ouer in fée simple to