orphans within the City of London or any other City Borough or Towne where Orphans Orphans are commonly vsed to be prouided for either by grant or by custome But the Lord Maior of the city of London and the Aldermen of the same and euery other head Officer of any other Citie c. where such Orphans be prouided for shall and may haue take like rule order kéeping and charge of such Orphans and of all their lands tenements goods cattels as heretofore they vsed or lawfully might haue had vsed if this act had not bin made There was grandmother a widdow mother a widdow ij daughters Co li. 3. 37. the grandmother being seised of certain land in sée holden in socage did by her last wil in writing bequeath the same to the said ij daughters to the heirs of their ij bodies begotten by euen portions equally to be diuided the remainder to the mother being her sole daughter and heire apparant her heires and after the mother maried a second husband and then the grandmother dyed after whose death both the said daughters entred into the said lands so deuised vnto them and then the yonger daughter being betwéene the age of xiiij and xvj yeares and liuing in house with her father in law and mother of her owne will and forwardnesse and with the consent and agréement of her father in law departed foorth of his house in a morning and the same day in another place maried a husband In this case it was adiudged that the said yonger daughter had forfeited her moitie or halfe part of the said lands so deuised vnto her The daughters forfeiture for mariage without her mothers consent by her contracting of Matrimonie and that her said mother should take the benefit of the said forfeiture for the mother had the custodie and gouernement of the said daughter at the time of the said contract by the special words and prouision of the said statute which gouernment was annexed to the person of the mother Iure naturae and was not transferred to her second husband by her mariage as her lands and goods were and so her husbands consent was not materiall nor that consent which the meaning of the makers of that statute did respect and prouide for And though the daughter was forth of her mothers house at the time of the contract of mariage yet in the iudgement of law the mother had then the custodie of her which was inseperable from her person And seeing the foresaid stat of 4. St. 4. 5. P. M. 8. 5. P. M. doth giue the forf to the next of the kin to whom the inheritance should discend or come after her decease during the life of such person that so shall contract matrimonie therfore the partie must be of the blood next of the blood to whom the inheritance vpō such forf shal discend or come which is the mother not the eldest sister for administration may be grāted of the goods of the son or of the daughter dying intestat to the father or mother as to the next of the blood of the party deceased according to the stat of an 21. H. 8. 5. And further though the elder sister be of kin to the yonger yet in this case if the yonger haue any issue her land should discend to her issue and if she haue no issue it should remaine to her mother for that the elder and yonger sisters were tenants in common in taile though they neuer made partitiō indeed the remainder therof to their mother in sée by force of the said deuise of their grandmother who by her will meant and ordained that the land should bee diuided and that one of them should not enioy the whole as suruiuor to the other 41 Hauing written of deceits and frauds practised or performed by some particular persons to others as by the tenant to his Lord Seuerall deceits prohibited by seuerall Statutes the debtor to the creditor the seller to the purchaser the lessor to the lessée c. I am now to expresse and discouer some other guiles frauds and falshoods which the offendors therin do endeuor to put in vse or practise not onely against any one two or more speciall persons as in the cases aforesaid but against euery person that shall put them in trust or otherwise shall haue occasion to vse them or theirs which our stat lawes haue accused and condemned to be offences and haue inflicted vpon the transgressors thereof seuerall punishments As by the stat of Anno 9. St. 9. H. 5. 8. H. 5. falsifiers and counterfeiters of deceitfull and vntrue weights Counterfeiting of weights deceitfull being attainted thereof shal be taken by Iust of peace Sherifes Eschetors other cōmissioners kept in prison without mainprise vntil they haue made fine and ransome according to the Iust discretion St. 23. H. 8. 4 By the stat of An. 23. H. 8. If any diminish a barrell a kilderkin or firkin to the deceit or hurt of another Deceit by diminishing of a vessell by taking out the head or any staffe he shal forf iij. iiij d. and be punished by the discretion of the chiefe officer Deceitfull things vpon fustian before whom the offence shall be presented and the vessell shall be burned By the stat of An. 11. H. 7. Sat. 11. H. 7. 27. If any denizen or forreiner shall vse yrons or other deceitfull thing vpon fustians vnshorne to breake off the nap and cotton of the same but onely the broad shéeres he shall forfeit for euerie offence twentie shillings to the king and him that will sue By the statute of Anno 18. Deceit in goldsmithes work◠El. If any Goldsmith doe make any Goldsmithes worke Sta. 18. El. 14 or plate which shall be touched marked or allowed for good by the Wardens or Masters of that Mysterie and that in the same there shall be found any falshood or deceit then the sayd Wardens and Corporation shall forfeit the value of the thing exchanged or sold to the king and the partie grieued By the Statute of Anno 1. Deceitfull vsing of linnen cloth Eliz. If any do cast or cause to be cast St. 1. El. 12. any péece of linnen cloth ouer a péece of timber and doth by any deuice racke draw and stretch the same of length and bredth and then doth beat it and cast deceitfull liquors mingled with chalke or other things vpon it or doth vse any other deceitfull thing wherby it shal be the worse for the vse thereof then he shal forf the same to the K. and him that will sue for it be one moneth imprisoned at the least and pay such fine as shall be assessed by the Iustices before whom he is condemned By the Statute of Anno 19. Deceits in weights or beames for pewter or brasse H. 7. St. 19. H. 7. 6 4. H. 8. 7. If any
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
that all men may kill him without punishment and specially if he defend himselfe or flie away in such sort that he may be hardly apprehended But if he doe not flie or defend himselfe then he that killeth a man so taken shal answere for him as for any other man for that life and death be in the kings hands vnlesse there be a custome to the contrary as in the Counties of Hereford and Glocester And he shal forfeit the benefit of Law for he which being outlawed will be so bold as to returne without the kings licence shall die without law or further examination in iudgement And he cannot appeale others for he hath lost the benefit of law and carieth with him his iudgement vpon his head he can haue no defence so long as the Outlary standeth in force It is vpright iustice that he shal perish without law and iudgement who refuseth to liue according to the law And he shall forfeit his right and possession of all things that he hath gotten or may get And all bonds obligations homages fealties oathes and other contracts made with him be dissolued which can neuer be reuiued but vpon a new contract though he be restored And he shal forfeit all his tenements and hereditaments from him and his heires and euery action that was due to him before his Outlary though he be after restored by the kings pardon And Outlary of felony and euery other iudgement of felony doth dissolue all the gifts sales of land that he made sithence the time of the felony committed The outlawes goods shal be the kings for he cannot be outlawed in any other place but in the kings Court as in the Country Court or in the Hustings of London ⧠Corruption of Blood 1 BY attainder of Treason or Felony commeth corruption of Blood that is to say that the offendors children cannot be heires to him that is attainted nor to any other auncestor Corruption of blood salued by Parliament only And if the offendor were a Nobleman or a Gentleman before by this attainder he is become ignoble and not onely he himselfe but also all his children hauing respect to the Nobilitie which they had by their birth And this corruption of Blood is so grieuous that it cannot bee salued otherwise then by authoritie of Parliament But if the King will pardon the offendor it will cleanse the corruption of blood of those children which be borne after the pardon and they which be borne after the pardon may inherite the land which their auncestor purchased at the time of the pardon or after but so cannot they which were borne before the pardon And also he that is attainted of Treason or Felony shall not bee heire to his father but his disabilitie shall hinder others to be heire so that during his life the land shall rather escheat to the lord of the fée 27. Ed. 3. 77. Fi. Petit. 20 then discend to another But if he that is attainted doe die without issue of his body during the life of his auncestor then his younger brother sister or cousin shall inherite for if the eldest sonne be hanged Fi. Discēt 6. 26. As p. 2. or doth abiure the Realme for Felony during the fathers life it is no impediment but that the youngest sonne may inherite 29. As p. 11 13. H. 4. 8. Fit Discent 17. And if he which is attainted of Treason or Felony in the life time of his auncestor doe purchase the Kings pardon before the death of his auncestor yet he shall not be heire to his said auncestor but the land shall rather escheat to the lord of the fée But if the eldest sonne be a Clerke conuict in the life of his father and after his father dieth in this case he shall inherite his fathers land because he was not attainted of Felony for by the common Law hée should haue inherited after hée had made his purgation And now by the Statute of Anno 18. Eliz. hée shall bee forthwith enlarged after burning in the hand Fi. Cor. 382 St. 18. Eli. 6. and deliuered out of prison and not committed to the Ordinary to make his purgation and so he is in case as if he had made his purgation Where corruption of blood shall preiudice tenant by the courtesie 2 If a man that hath land in the right of his wife haue issue 13. H. 7. 17 and doth commit Felony for the which he is attainted and the king doth pardon him in this case if his wife doe die before him he shall not be tenant by the courtesie for the corruption of blood of that issue But it is otherwise if he hath issue after the pardon for then he shall be tenant by the courtesie although the issue which he had before the pardon be not inheritable The eldest sonne attainted of felony during his fathers life 3 If a man seised of lands hath issue two sonnes 32. H. 8. Dyer 48. and the eldest is attainted of Felony in the life of his father and is executed for the felony or otherwise dieth during the life of his father and after the father dieth seised of the land the land shal discend to the youngest sonne as heire to his father if the eldest sonne hath no issue then liuing But if the eldest sonne that was attainted hath any issue in life which should haue inherited but for the attainder the land shall escheat to the lord and not discend to the younger brother for that the blood of the eldest brother is corrupted Where an attainder but n◠corruption of blood 4 S. Forfeiture 27 That the attainder of Treason or Felony in certaine cases shal not extend to make any corruption of blood the disinheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other then of the offendor or offendors during his or their naturall liues only ⧠Restitution of stolne goods 1 HAuing written of Robberies and other Felonies and declared how Felons are to be prosecuted by Arrest Appeale Indictment Arraignment Tryall and Iudgement and what they shall forfeit I meane now to shew how true men whose goods were robbed stoln or feloniously taken from them by such Felons shall be restored to their goods againe As it is necessary for the Commonwealth that Felons should be punished least the impunity of some should incourage them and also allure others to commit the like offences so is it fit that they chiefely whose goods were taken from them and therby haue tasted the smart and receiued the losse by the Felons and are more likely to know who they be and where they be then others are should doe their vttermost endeauor to procure those Felons to be apprehended brought to their answers and to haue them punished according to their demerits that is to say he that was robbed What is fresh suit or whose goods were stolne from him ought presently after the
a Lords freeholder to plead That those tenants of the plaintifes which departed from their tenancies were the fréeholders and the fréehold tenants of the plaintifes and not his tenants at will For if it be so the plaintife shall recouer nothing against the defendant because hee hath other sufficient remedie to recouer the seruices of his fréeholders or the land in stead of thē And so it is to plead that the tenants which departed 21. H. 6. 31. were tenants for terme of yeares 6 In the cases aforesaid he that is wronged in his owne person his seruants or tenants by the menace of another whereby hée sustaineth losse shall haue his action of Trespasse against the offendor for the said menace and the hurt which he receiueth thereby and the king also shall haue a fine of the offendor for that the menace was of life and member and suggested to bee done vi armis and so tended to the breach of the peace But if it bée such a menace as doth not tend to the breach of the peace Menace which is iustifyable then the law is otherwise for then the partie menaced shall neither haue an action of Trespasse or other remedie against the menacer neither shall the king haue a fine of him As if a man dye seised of certaine lands and a stranger will abate 22. H. 6. 48 21. H. 6. 26. 9. H. 7. 7. and then the heire of him who dyed seised will enter vpon the stranger and menace and threaten him That if he will not depart from the possession of the same land that then hée shall repent it as the law will allow this is menace iustifiable for that he hath said no more than the law will allow him to performe And in like sort if A. be disseised of his fréehold eiected out of his terme of yeares Li. Intr. 555 dispossessed of his goods beaten assaulted or euill intreated by B. if in this case A. will say vnto B. That he will not endure those wrongs nor put them vp at his hands but will prosecute suit according to the law of the Realme in the sharpest maner that he can for the redresse of those iniuries and for the due punishment of B. this is menace iustifiable and nothing tending to the breach of the peace for A. hath said nothing but that the law will permit him to doe And in these cases the menacer doth yeeld to make the law iudge of his wrongs and that also in peaceable manner but in the former cases the menacer doth threaten to be the reuenger of his owne iniuries and so to be his owne iudge and that also in a forcible and vnlawfull sort And so it is if one man owe money to another and at the time assigned doth not pay if the creditor do say to the debtor that he will sue him according to the course of law 16. E. 4. 7. and imprison him for his debt this is menace iustifiable for the law doth allow him to doe it 7 As menace in words is accounted in many cases to be a meane of the breach of the peace and so punishable by the lawes of the realme so menace by deeds by behauiour gesture wearing of armour or vnusuall and extraordinarie number of seruants or attendants is accounted to be in affraie and feare of the people a meane of the breach of the peace and so punishable for the law doth intend that he which in a peaceable time doth ride or goe armed without sufficient warrant or authoritie so to doe doth meane to breake the peace and to doe some outrage seeing she is able and wil be alwaies ready to defend euery member of the common weale from taking or receiuing of force or violence from others if himselfe doe not giue cause to the contrarie Whereupon by a Statute made at Northhampton St. 2. E. 3. 3. anno 2. Ed. 3. it was enacted That no man great nor smal of what condition soeuer he be except the kings seruants in his presence his ministers in executing of the kings precepts or of their office and such as be in their companie assisting them and also vpon a Crie made for armes to keepe the peace and the same in such places where such acts happen be so hardie to come before the kings Iustices or other the kings ministers in doing their offices with force and armes nor bring no force in affraie of the peace nor to goe nor ride armed by day nor by night in faires markets Menace by going or riding armed nor in the presence of the Iustices or other ministers nor in no part elsewhere vpon paine to forfeit their armour to the king their bodies to prison at the kings pleasure And that the kings Iustices in their presence Sherifes and other ministers in their bailiwicks Lords of franchises their bailifs in the same mayors bailifs of cities boroughs within the same cities boroughs borough-holders wardens of the peace within their wards shal haue power to execute this act And that the Iust assigned at their cōming down into the coūtrey shall haue power to inquire how such officers Lords haue executed their offices in this case to punish them whom they find haue not done that which pertained to their office St. 7. R. 2. 13 20. R. 2. 1. And after by a statute made anno 7. R. 2. it was ordained That no Lord Knight nor other little or great shall go nor ride by night or by day armed nor beare sallet or skull of yron nor other armour vpon the paine of forfeiture thereof to the king except the kings officers and ministers in doing their offices And by the same statute it was also assented that none should ride or goe with Launcegaies Launcegaies beeing an armour defensiue then vsed in affraie of the people but that the same Launcegaies should be for euer put out 8 And shortly after the same Statute of 2. Ed. 3. was put in execution Wearing of a priuie coate for a knight was attached and arraigned in the kings Bench for that hee did weare armor vnder his vpper garment in the kings palace 24. E. 3. 33. and in Westminster hall who pleaded that there was debate betwéen him and another knight who did that weeke strike him and yet did menace him and that for feare of further perill and to saue his life hee did weare the same armour But this was adiudged no plea for the court did award that hee should forfeit his armour and be committed to the marshalsey And though he desired to be let to mainprise he was not admitted thereunto vntill the kings pleasure was knowne And the other knight his aduersarie was sent for into the kings Bench and there commanded vpon paine of all that he could forfeit that hee should not meddle nor doe any thing but that which was good to his said aduersarie Labourers shall weare no weapons
land without interruption 22. H. 6. 18. Fitz. Na. B. 249. he may kéepe his possession by force against all others And he is neither to be remoued from his possession by a Iust of peace though it be found by inquisition that he held that land by force nor yet by an action of Forcible entry brought against him vpon the said statute of 8. H. 6. Otherwise it is of a disseisor where restitution notwithstanding three yeares possession or of a man that commeth to land by a wrongful and vnlawfull title for if he hath detained the land by force thrée yeares 14. H. 7. 28. or twenty yeares he may be indited by vertue of the statute of 8. H. 6. before a Iustice of peace of forcible detaining of the same land and that being found the said Iustice of peace is to reseise the land and to award restitution to the party disseised or expelled thereof And also the same disseisor shall make fine and ransome to the King cui nullum tempus occurrit whose peace is brokeÌ„ by this long and vnlawfull detaining of the possession of another mans land by force But the party disseised expelled or kept out of possession cannot in this case maintaine an action of Forcible entry vpon the said statute of 8. H. 6. against the said disseisor séeing he hath omitted his time suffered the disseisor to gaine of him thrée yeares possession therby the benefit of the same prouiso contained in the said statute of 8. H. 6. 13 If a man who hath made an Entry vpon the possession of another of any lands or tenements by force or doth hold lands by force 1. R. 3. 4. after a peaceably entry made doe doubt that he shal be thereof indited before a Iustice of peace vpon the statute of 8. H. 6. and that restitution will be thereupon awarded he may haue a Certiorari out of the Kings Bench ready and when the Bill of Indictment is found he may presently deliuer it to the court and that shal be a Supersedeas to stay Restitution A Supersedeas to stay restitution for that by this Certiorari the indictment shal be remoued And though the indictment be found after the Teste of the writ of Certiorari it is not materiall for they be both the Kings Courts And when an indictment vpon the said statute of 8. H. 6. 2. 3. P. M. Dy. 122. is remoued into the kings Bench and that the party indited doth tender to trauerse the same the Iustices of the same Bench may graunt or stay restitution at their discretion according as the truth of the Title shall appeare to them But if a speciall sessions be procured to inquire of a Forcible entry or detaining of possession according to the said statute of 8. H. 6. and the Iustices to whom complaint is made do repaire to the place supposed to be entred vpon or holden with force 2. 3. P. M. Dy. 187. and doe sée the same according to the said statute after they do inquire thereof and that is found and thereupon they graunt restitution no other Iustice of peace can graunt a Supersedeas to stay the same restitution for by the said statute no other Iustice hath authority to graunt restitution but he or they to whom the complaint is made and before whom the force is found the writ shal be graunted vnder the Teste of one of them onely sauing the Iustices of the K. Bench who haue supreme authority and where the law doth intend that the King himselfe doth sit 14 Whereas the words of the foresaid statute of 8. H. 6. be Sta. 8. H. 6. 9. If it be found before any of the Iustices or Iustice of peace that any doth contrary to this statute viz. enter vpon or hold lands with force then the said Iustices or Iustice shall cause the lands or tenements so entred or holden to be reseised and shall put the party so put out in full possession of the same landes or tenements so entred or holden as before they were entred or holden And therefore if the father be put out of possession of lands by force and dieth before or after inquisition thereof his heire shall not haue restitution thereof vpon the said statute of 8. H. 6. for that he was not the same person which was put out And the same Law is if after the death of the father Where force found and no restitution dying seised of certaine lands a stranger doth abate and holdeth the same lands by force against his heire before he had gotten any possession indéed and that force is found before a Iustice of peace by an inquisition the same heire shall not haue restitution by the words of the said statute for that the same heire had but a possession in law and was not in actuall possession of that land neither is hée that party who was put out And so it is if tenant for terme of yéeres of certaine lands be put out of his terme by force and die though after his death the force he fâ—und by inquisition taken by a Iustice of peace his executors shall not be restored to the possession of that land by the same Iustice of peace causa qua supra But yet in the cases aforesaid the offendor shall be punished by imprisonment fine to the K. for by his forcible entry he hath broken the peace St. 15. R. 2. 2. 15 Whereas by the before rehearsed statute of 15. Rich. 2. it is ordayned That when any forcible entry shal be made into lands and complaint thereof come to a Iustice of peace he shall go to the place where the entry was made and if he find any that hold any such place forcibly after such entry made they shal be taken and put into the Gaole c. The forme of which Iustice of peace Mittimus whereby he shall send the same offendors to the Gaole is this viz. Francis Fortescue knight Buck. A Mittimus to send to the gaole such as do hold land by force one of the Iustices of peace of our Soueraigne Lord the King within the county of Buckingham to the keeper of his Ma. Gaole in Aylesbury in the said county and to his deputie and deputies there and to euery of them greeting Vpon complaint made to me by A. B. of Whaddon in the said county husbandman that C. D. E. F. of S. in the said county labourers and other malefactors and disturbers of the Kings peace had forcibly and with strong hand entred into his house c. in Whaddon aforesaid and him expulsed the same yet held with force I went this present day to the said house and there found the said C. D. E. F. holding the said house c. with swords and bucklers bils and staues to the great disturbance of his Ma. peace and against the forme of the said statute in that behalfe ordained And therefore I send you
or defeated of his land lease annuitie debt accompt action suit or demaund is no lesse perillous and preiudiciall to the party thereby wronged if it be not discouered preuented or auoided then the wresting and euicting from him of the same land lease annuitie debt or demaund And the offendors therein do as iniuriously and with as small colour of iustice wrest from the party grieued his said land lease annuitie debt c. as the robber doth take a purse from the traueller by the way or the burglarer his intended prey from the houskéeper in the night And if those reall dueties or things in action were conuerted into things personall the vndue conueying of them in this vnlawfull manner would deserue to be accounted and punished amongst other felonies as in some sort it is ordained so to be by the statute of anno 5. Eliz. St. 5. El. 14. And because diuers persons did forge false déeds and miniments and did cause them to bée openly pronounced published and read to trouble change or vndoe the lands of other persons and to vndoe and troble the possessions and titles of the kings peope therefore by a statute made anno 1. H. 5. it was ordained St. 1. H. 5. 3. that the partie grieued thereby shall haue his suit in that case and recouer his dammages and the partie conuict shall make fine and ransome at the kings pleasure But forasmuch as the wicked and daungerous practise of making forging and publishing of false and vntrue déeds and writings was much more practised and put in vre in all the parts of this Realme than in times past it had béene to the disherison of diuers persons and the great subuersion of iustice which hath growne chiefely by that the paines and punishments limited for such great offences by the lawes and statutes of this Realme before time were so small and easie that such euill people were not afraid to enterprise the practising and doing of such offences The repeale of former statutes of Forgerie Therefore by a statute made anno 5. St. 5. El. 14. El. it was enacted That all other statutes before that time made and prouided for forger of false déeds charters miniments or writings and all and euerie penaltie appointed for the same should from the first day of Iune then next following be void Forging of a déed whereby anothers fréehold shal be troubled 3 To the intent that condigne or some sharper punishment might bée ordained for such as should bée offenders in that crime of forgerie than in time past had béene by the sayd statute of anno 5. Elizab. it was established St. 5. El. 14 That if any person or persons after the first day of Iune then next following vpon his or their owne head and imagination or by false conspiracie and fraud with others shall wittingly subtilly and falsly forge or make or subtilly cause or wittingly assent to bée forged or made any false déed charter or writing sealed court roll or the will of any person or persons in writing to the intent that the estate of Fréehold or inheritance of any person or persons of in or to any lands tenements or hereditaments fréehold or copihold or the the right title or interest of any person or persons of in or to the same or any of them shall or may bée molested troubled defeated recouered or charged Or shall pronounce Publishing of a forged déed publish or shew forth in euidence any such false and forged déed charter writing court roll or will as true knowing the same to bée false and forged as is aforesaid to the intent aboue remembred and shall bée thereof conuicted either vpon any action or actions of Forger of false deeds to bee founded vpon this statute at the suit of the partie grieued or otherwise according to the order and course of the lawes of this Raalme or vpon Bill or Information to be exhibited into the Court of Starre chamber according to the order and vse of the Court he shall pay vnto the partie grieued his double costs and dammages to bée found or assessed in the Court where such conuiction shall bée and also shall be set vpon the Pillorie in some open market towne or other open place and there to haue both his eares cut off and also his nostrels to be flit and cut and seared so as they may remaine for a perpetuall note or marke of his falshood and shall forfeit to the Queene her heires and successors the whole issues and profits of his lands and tenements during his life and shall suffer and haue perpetuall imprisonment during his life The same dammages and costs to bée recouered at the suit of the partie grieued as is aforesaid to be first paid and bee leuied of the goods and cattels of the offendors and of the issues and profits of the said landes tenements and hereditaments of such partie conuicted or of one or both of them the sayd title of the Queene her heires and successors to the same notwithstanding Stat. 5. El. 14 4 If any person or persons after the said first day of Iune next Forging a déed whereby a lease or annuitie may bée claimed vpon his or their owne imagination or by false conspiracie or fraud had with any other shall wittingly subtilly and falsly forge or make or wittingly subtilly or falsly cause or assent to bee made and forged any false Charter Deed or Writing to the intent that any person or persons shall or may haue or clayme any estate or interest for terme of yeares of in or to any Mannours Lands Tenements or Hereditaments not beeing Copihold or any Annuitie in Fee simple Fee tayle for terme of life liues or yeares Or shall as is aforesayd forge make or cause or assent to bee made or forged any Obligation or Bill obligatorie or any Acquitance Release or other discharge of any Debt Account Action Suit Demaund or other thing personall Or shall pronounce publish or giue in euidence such false or forged Charter-Déed Writing Obligation or Bill obligatorie or any Acquitance Release or discharge as true knowing the same to bee false and forged and shall bee thereof conuict by any of the wayes or meanes aforesayde Then hee shall pay to the partie grieued his double costs and dammages to bee found and assessed in such Court where the sayde conuiction shall bée had and also shall bee set vpon the Pillorie in some open Market Towne or other open place and there haue one of his eares cut off and also shall suffer imprisonment by the space of one whole yere without baile or mainprise Stat. 5. El. 14 5 The partie and parties grieued by reason of any the offences aforesaid Seuerall remedies for the partie grieued shall and may at his and their pleasure haue and sue his action of forger of false déedes vpon this Statute against any of the offendors in the same by originall writ out of the Chauncerie and
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
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
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
any person or persons or to his or their right heires Or at any time since the said 20. day of Iuly hath conueyed or hereafter shall conuey or make by couin contrarie to the true intent of the Act prouided 34. H. 8. for the making of Wils any estates conditions mesnalties tenures or conueyāces to the intent to defraud or deceiue the King of his Prerogatiue primer seisin liuerie reliefe wardships mariages or rights or any other Lords of their wardships reliefes heriots or other profits which should or ought to accrue growe or come vnto them or any of them by or after the death of his or their tenant by force and according to the Statutes made 32. H. 8. 1. 34. H. 8. 5. and the same estates and other conueyances béeing found by office to be so made by couin fraud or deceit contrary to the true intent of the said Acts Then the king shal haue as wel the wardship of the bodie and custodie of the lands c. as liuery primer seision reliefe and other profits which should or ought to appertaine to him according to the true meaning of the said acts as though no such estates or conueyances by couin had neuer béene had or made vntill the said office be lawfully vndone by trauerse or otherwise And the other Lord and Lords of whom any such lands c. shal be holden by Knights seruice as is aforesaid shall haue their remedy in such cases for his or their wardships of bodies and lands by writ of right of ward and shall distraine and make auowrie or cognisance by themselues or their bailifes for their reliefes heriots and other profits which should haue béene to them due by or after the death of their tenant as if no such estate or conueyance had béene had or made Sauing the right and title of the donees feoffées leasées and deuisées thereof against the said deuisor and his heyres after the interest and title of the King or other Lord therein ended 24 If the father doe make a feoffment of his lands holden by Knights seruice Fitz. Collusion 29. 33. H. 6. 14. Co. li. 1. 122. to his eldest sonne He that is not partie to a fraud shall sustaine no losse then by the foresaid Statute of Marlebridge the Lord of whom the same lands be holden is inpossibilitie to haue the wardship of the said sonne if the father die his said sonne being within age But if the same sonne doe after make a feoffment of the same land to an other bona fide and after the father doth die leauing his sonne within age there this possibilitie is destroyed for that the stranger who had no notice of this fraud hath purchased the land bona fide and therefore shall sustaine no preiudice by it And yet in that case if the sonne had made the Feoffment after the fathers death Co. li. 2. 94. this alienation had not depriued the Lord of his wardship which was once lawfully deuolued vnto him 25 And it is a deceit collusion and defrauding of the lawe and a great disheritance and preiudice to the Lords of the Fee of whome any lands bee holden to giue the same lands in Mortmaine or to doe any Act or procure any thing to be done whereby they may come into Mortmaine contrarie to the statutes of Magna Charta 7. Ed. 2. 13. Ed. 1. 15. R. 2. and 23. H. 8. for the Lordes doe loose the wardships mariages reliefes and other seruices of their Tenants by that meanes And therefore by the Statute of West 2. it was enacted That if any religious or Ecclesiasticall person doe impleade an other St. 13. E. 1. 31. by a Reall action of land and the Tenant will make default after default whereby hee ought to loose the land Then hee which doth recouer shall not haue Execution of the same Land recouered vntill he hath sued forth the kings writ of Quale ius directed to the Escheator of the same countie to make enquirie by a Iurie what right hee that recouered the land hath to the same And if he hath right Deceit and Collusion to bring land into mortmaine iudgement shal be giuen for him he shall haue execution of the same land And if it be found that he hath no right to recouer by his said action but that the lands were lost by collusion betwéen him and the tenant of the land then the land shall accrue to the next Lord of the fee if hée demaund it within a yéere next after the Enquest taken And if he doth not demaund it within a yeare it shall accrue to the next Lord aboue if he demaund it within halfe a yeare after the same And so euery Lord after the next Lord immediat shall haue halfe a yeare to demaund it successiuely vntill it come to the King to whom through the default of other Lords the land shall accrue For this recouerie of land by default by a compact and couin before agreed vpon betwéene the demaundant being a religious or Ecclesiasticall person and the tenant is to defraud the intent and meaning of the Statutes of Magna Charta and an 7. Ed. 1. whereby it was ordained St. 9. H. 3. 37 St. 7. Ed. 1. That if any religious person or other whatsoeuer will buy or sel any lands or tenements or wil receiue the same by colour of any gift or lease or by reason of any other title whatsoeuer or will by other practise or deuise procure the same to himselfe whereby such lands or tenements may come into mortmayne he shall forfeite the same lands And by the equitie of the foresaid Statute of Westminster 2. if any Ecclesiastical person doe recouer land against another by reddition 3. Ed. 4. 14. confession or action tried yet the collusion shal be inquired of for that the same recouerie may be by collusion before had betweene the demaundant and the tenant And because that by feoffments fines recoueries and other assurances made of trust of lands to the vse of parish Churches Lands assured in Mortmaine to churches chappels Guilds c. Chappels Guildes Fraternities c. there groweth to the King and other Lords and subiects of the Realme the like losses inconueniences and is as much preiudiciall to them as doth and is where lands be aliened in mortmaine Therefore for the eschuing and auoydance of them by a Statute made an 23. H. 8. it was enacted St. 23. H. 8. 10. That all feoffments fines recoueries wills and other estates deuised or in any wise made of trust of any mannors lands tenements or hereditaments to the vse of any parish churches chappels churchwardēs Guildes fraternities or brotherhoods erected or made of deuotion or by common assent of the people without any corporation Or that the Feoffees Conisees Recouerées or other persons and their heires thereof seised shall take leuie or perceiue or cause to be taken c. the issues and profites thereof and the same to
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.
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
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
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
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
nothing for that they be discharged of their charge and seruices which they did hold by which was as much as they receiued of the tenant perauaile And if they held of the King by lesse rent than their tenant perauaile held of them they shall haue the surplusage of that which was holden of them of the king by the way of petition Fitz. Assise 124. Fitz. Petition 19. And if the king doe not kéepe the land so escheated vnto him in his hands but will assure it to another hée must reuiue the tenure in the Mesne Lord to hold of them of whom it was holden before the attainder It appeareth by the statute of Praerogatiua Regis cap. 12. That the Kings and whole Court of Parliaments meaning was at that time when it was published and established by Parliament which were the Prerogatiues royall annexed to the Crowne of England by the common law That of such lands as did escheat to the King the seruice of the Lord of the fée should be reserued for the words of the Statute bee these viz. St. 17. Ed. 2. 12. The King shall haue escheat of the lands of Normans to whose sée soeuer they belong Sauing the seruice appertayning to the chiefe Lordes of the same Fée And King Henrie the third gaue the Escheates of Normans landes to bee holden of the chiefe Lordes of the Fee by Seruices and Customs due and accustomed thereunto Some of which Normans dwelling in Normandie at that time had lands in England and were subiects to the King of England and did forsake their obedience to the King of England and became subiects to the K. of Fraunce the King of Englands enemie and therby did forfeit those lands which they had in England by the common law and they did escheat to the king 48 In Petit Treason Who shal haue the forf in petit treason and felony and Felony the king shal not haue the escheat of the offendors land vnlesse it be holden immediatly of him but the king shal haue the profits of the said offendors land by the space of a yeare and a day and the land shall be wasted and destroyed in the houses woods and gardeins and in all things belonging to the same and then it shall bee deliuered to the chiefe Lord of the fée of whom the same land is immediatly holden And yet in some cases the King shall haue the forfeiture of the land of him which doth commit Petit Treason or Felonie though the land be holden of others and not of him St. 17. E. 2. 14. as it appeareth by the Statute of Praerogatiua Regis which hath ordained That the king shall haue the escheates of lands of Archbishops and Bishops fréeholders when such tenants be attainted of Felony committed in time of vacation whilest their temporalties were in the Kings hands to bestow in what sort it shall please him Sauing to such Prelats the seruice that to them is due and accustomed And therefore sauing in the cases aforesaid the mesne Lords of whom the lands be immediatly holden shall haue their escheats of their fréeholders lands that haue committed Petit Treason or Felonie which land after the King hath hath had the yere day and wast thereof they must haue deliuered vnto them out of the kings hands by suing out of a writ S. Br. 39. 49 If any stranger The Lords remedy for lands escheated vnto him or other sauing the King doth intrude into that land whereof the felon attainted was seised at the time of the felony committed the immediat Lord of the fée of whom the same land is holden may enter vpon him and put him out or else he may haue his writ of Escheat against him In the which writ he must rehearse the iudgement giuen against the person attainted viz. if he were attainted by outlawrie to alledge Eo quod praedictus A. feloniam fecit pro qua vtlagatus fuit and if he were attainted by abiuration to say Pro qua regnum nostrum abiurauit and if he were attainted by confession or verdict to say Pro qua suspensus fuit and if hee doe alledge one of those iudgements Fitz. Escheat 14. Fitz. Escheat 8. Fitz. Escheat 6. in the stead of another his writ shall abate And yet he néed not rehearse the manner of the felonie in his writ nor in his count but generally that he committed felonie And though there be error in the iudgement yet the Lord shall haue a writ of Escheat and the tenant shall not falsifie the iudgement by the errour 46. E. 3. 4. 50 Island escheat to the auncestor The heirs remedie for land escheated to his auncestor because his tenant was attainted of felonie and the auncestor dyeth before he doth bring his writ of Escheat or doth enter In this case the heire may haue a writ of Escheat and suppose that the partie attainted did hold of his auncestor Fitz. Escheat 17. 51 If a lease of land be made for the terme of life reseruing to the lessor a rent and the lessor payeth his seruices to the chiefe Lord and then the lessor is attainted of felonie Where the Lord shall haue his writ of Escheat and where he may enter and after the tenant for terme of life dyeth In this case the Lord paramount may haue a writ of escheat of the land for the rent which was reserued vpon the lease doth come in stead of the land and so in the consturction of law he died seised of the land But if no rent had béen reserued the Lord might haue entred into the land as escheated vnto him 6. H. 7. 9. but could not haue recouered it by a writ of Escheat no more than if his tenant being disseised had bin attainted of felony in which case his only remedy is to enter The forme of a 〈◊〉 of Escheat 52 This is the forme of the writ of Escheat Rex vicecomiti B. salutem Praecipe A. quod iuste sine dilatione reddat B. decem acras terrae cum pertinentijs in N. quas C de eò tenuit quae ad ipsum B. reuerti debent tanquam Escaeta sua eò quod praedict ' C. feloniam fecit pro qua suspensus fuit vt dicitur Vel pro qua vtlagatus fuit vt dicitur vel pro qua regnum abiurauit vt dicitur Et nisi c. And though the indictment was executed in other maner than is rehearsed in the writ yet the writ shall not abate Register fo 165. as if he were Decapitatus non suspensus for the execution of the iudgement is not material so that he had such a iudgement for the action is true though the writ be not true The K. remedie for land escheated to him 53 In all cases of felony if the king ought to haue the escheat he must haue an office found for him before he can enter for vntill the office found the king hath but a
shal be allowed but once 6 Killing a man by chaunce or in his owne defence Committing of petite Larcenie 7 Offendors in Treason 8 Confession of the Felony 9 Clergie taken away by Statute A Cutpurse 10 Forging of Writings 11 A committer of Buggerie 12 Counterfeiting to be Egiptians 13 Relieuing of a Iesuit or a Priest 14 Committers of Rape or Burglary 15 Taking a woman against her will 16 Practising of Coniuration or Witchcraft 17 Stabbing or thrusting to death 18 A Recusant not abiuring or returning 19 Abiuration of a Popish Recusant 20 A Souldier departing from his Captaine 21 Wandering Souldiers and Mariners 22 Taking away any person in Cumberland 23 Committing of Murther Poyson Burglarie 24 Stealing of a Horse 25 Stealing of goods in one Countie and carrying them into another 26 Robbing of houses booths tents 27 Robbing of a house in the day 28 Commandement or counsell of Felony 29 A Lord of the parliament shall haue the benefite of his Clergie 30 The Indictment must be according to the Statute The words of the Indictment must be proued 31 When Clergie shall be demaunded Clergie demaunded before verdict 32 Denying to be a Clarke and yet is Whether Clergie be allowable without request 33 Who shal allow of Clergy 34 A Felon readeth vnder the Gallowes 35 To what vse the Ordinarie is imployed Clerkes within orders shall be vsed as others be 36 What is reading as a Clerke 37 The Ordinaries attendance requisit Contention who is Ordinarie 38 A Priest shall haue no fetters 39 Bigamus shall haue his Clergie 40 Another time conuict How the conuict shall be marked How offendors within orders shal be vsed 41 Certificat into the K. Bench of Outlawries Attainders and Conuictions 42 A Clarke deliuered to the Ordinarie Clergy allowed without deliuery to the Ordinary The Kings Pardon Fol. 218. 1 The Kings oath at his Coronation touching pardons 2 None but the King can pardon Felonies 3 In what cases the King may graunt pardon 4 Non obstante in a pardon The Suggestion shall bee comprised in the pardon 5 The offences shal be specified in the pardon 6 Suit for an approuers pardon 7 Pardon of the Felony but not of the attainder 8 Pardon of the attainder but not of the Felony 9 A ioynt pardon to two or three 10 A graunt to be quit of escapes of Felony 11 A generall pardon by Parliament 12 The Kings pardon must be shewed vnder Seale A writ of the allowance of the Kings pardon 13 He that hath a Pardon shall find sureties of his good abearing 14 The good behauior broken after pardon 15 A Charter of Pardon must agree with the indictment 16 The pardon and allowance entred vpon the appeale 17 The Kings pardon in plea in appeale 18 Vpon a Pardon a Scire facias awarded against an Appellant 19 Nonsute doth not aid an appellee that is outlawed 20 The Kings Protection 21 Pardon of a Felony before it be committed Standing mute or answering indirectly Fol. 222. 1 Standing mute whereupon paine fort dure doth ensue 2 Felons refusing lawfull triall 3 Pennance onely vpon an Indictment 4 Pennance for Pyracie 5 No pennance for High Treason 6 No pennance for a man before attainted 7 Standing mute after coÌ„fession 8 Inquire of him that standeth mute 9 The iudgement in pennance Judgement and Execution Fol. 224. 1 Iudgement where the prisoner is acquited 2 The iudgement of a man attainted of high Treason 3 The iudgement of a woman attainted of Treason 4 The iudgement of a man attainted of petit Treason 5 The iudgement of a woman attainted of Felony 6 The iudgement in misprision of Treason 7 Attainder of Treason by the common Law 8 The iudgement of pennance viz. of paine for t dure 9 Iudgement in Felony by Iustices of Nisi prius 10 Iudgement by new Iustices 11 Iudgement in petit Larcenie 12 The staying of a womans execution being with child 13 A man hanged falleth down before he be dead Forfeiture Fol. 226. 1 A Felon shall forfeit lands and goods 2 Forfeiture of goods Flying for the Felony 3 The Accessarie fled for the Felony 4 Forfeiture for petite Larcenie 5 Forfeiture for flying before arrest Forfeiture without Attainder 6 Forfeiture vpon the exigent awarded 7 No forfeiture to the accessarie vntill the principall be attainted 8 Forâ—eiture notwithstanding apparance and pleading 9 Forfeiture of a Clarke conuict Of him that committeth Homicide by misaduenture Of him that killeth in his owne defence Of Felo de se Of him that doth stand mute 10 Forfeiture of a right or action No payment of Attainteds debts 11 Forfeiting of goods wherin the offendor hath no propertie 12 A Felon attainted at the suit of one where moe were to sue 13 Forfeiture of other mens goods and his owne 14 The forfeiture where a woman killeth her husband 15 An Executor shall not forfeit his Testators goods 16 The forfeiture of goods holden ioyntly 17 Confiscation of goods Confiscation of his own goods by disclaymer 18 Confiscation by disclaimer in the goods of others 19 Confiscation of goods left out of an Appeale 20 Confiscation of goods by a false Appeale 21 A Waife and the seising thereof 22 The owner seiseth his goods waiued 23 Sildome waife but of stoln goods When waife of goods not stolne 24 No waife of goods stolne from an alien 25 Forfeiture of lands Tenant for yeares Tenant for life or in taile Tenant in the right of his wife or Church 26 Forfeiture of Landes intailed 27 The forfeiture of landes in fee simple The forfeiture of an Annuitie 28 The forfeiture of Title to land 29 The forfeiture of Euidence 30 Forfeiture without attainder 31 Forfeiture of the yeare day and wast 32 By what meanes the King came by the yeare day and wast 33 The yeare day and wast of lands of what title shall be forfeit 34 No yeare day and wast of lands holden by ioint purchase 35 Whether any Forfeiture shall bee made by Tenant in taile A Disseisor Tenant in fee farme A Mortgage 36 Forfeiture of tenant in auncient demesne 37 The yeare day and wast forfeited without attainder 38 No yeare day and wast of a Clarke conuict Lands of small value 39 When the king shall haue the yeare day and wast 40 The yeare day and wast not grauntable from the Crowne 41 What goods of Felons the king shall haue 42 From what time the forfeiture of lands shall haue relation 43 From what time the forfeiture of goods shall haue relation 44 who shall seise and keepe Felons goods and when 45 The goods of an offendor shall not bee seised vntill he be attainted 46 Who shall haue the custody of Felons goods 47 To whom the forfeiture of lands of a person attainted of high Treason shall accrue 48 Who shall haue the forfeiture in petite Treason and Felonie 49 The Lords remedy for lands escheated vnto him 50 The heires remedie for lands escheated vnto his auncestor 51 Where the
of him that was first menaced then assaulted Menacing beginneth the quarrell assaulting doth increase it battery accōplisheth it menacing laieth togither fire coales in the house of peace assault bloweth it maketh it burn And battery doth endeuor to consume the whole building to the ground And therfore because some sorts of menacing assaulting battery be professed enemies to the peace wherof I do write I will endeuor plainly to expres which be those menaces c. that the law doth inhibit in what sort by what means she doth restrain punish the offēdors therein 3 The law hath alwayes had that speciall regard to the preseruation of the peace of the Realme and of euerie member thereof that she could not endure neither would suffer one person so much as to menace or threaten another of life or member or of any thing tending to the breach of the peace And therfore she hath not only assigned in all countries places of this realm Sherifes Iustices of peace Constables Thirdboroughs and diuers other officers to be as watchmen continually attending bending their cares industries to preserue the peace and to defend each person from the violent sting of menace assault or batterie but also she hath giuen and prouided for him who is only menaced 40. E. 3. 40. an action of Trespas as she hath done for him who is assaulted or beaten wherby he shall recouer his damages so that the same menacing do tend to the hurt of him who was menaced his seruant tenāt or any other person by whom he liueth or receiueth benefit And therefore the plaintife in an action of Trespas of menace may declare That he is an Atturney The declaration in Trespasse of Menace and that in respect of the defendants menace he durst not attend his clients suites from such a day in M. vntill such a day in O. or that he is a husbandman and could not attend or ouersée his husbandrie or that he is a bailife or collector of rents and could not in respect of such menace 37. H. 6. 3. by the space of many monethes attend his bailiwick collection of rents or other businesses or that in regard of such menacing 30. Ass p. 14. he was not able nor durst trauell abroad to apply his trade or get his liuing without such force and defence as his estate was not able to maintaine As the collector of a fiftéene brought an action of trespas for the king and himselfe 27. Ass p. 14. against one and declared That the defendant did so rebuke him Rebuke in Assault that he durst not tarie in the towne to gather vp the fiftéene for feare least the defendant would haue beaten him And though the defendant did not beat him yet this rebuke was adiudged an assault and the plaintife recouered an C. s̄ in damages And in like sort one brought a bill of trespas in the Cōmon pleas for the king and himselfe 30. Ass p. 14. and declared That whereas hee was comming towards the Commō pleas to answer in a plea of land the defendant came and did so beat assault and menace him that hee durst not bring his writings or come thither without great charges in contempt of the king contrarie to his peace to the damages of the plaintife c. Whereunto the defendant pleaded not guiltie And the defendant was compelled to find pledges of his good behauior for the peace that he should not meddle with the plaintife by himself nor by any others Fitz. Trespas 159. openly nor secretly In an action of Trespas the plaintif declared That the defendant so menaced him in one county that he could not do his businesse in another county and this was adiudged a good declaration and it was ordered 37. H. 6. 2. that the issue shold be tried in the county where the menace was for there was al the trespas cōmitted the other county was put in only to increase the damages Li. Intr. 592 22. Ass p. 76. 20. H. 7. 5. 4 And in like sort if one man do menace or threaten the seruant of another Menacing a seruant whereby he departeth of life or member in such sort as the same seruant doth depart frō his master wherby the master doth for a time lose the seruice of his said seruant in this case the master shal haue an action of trespas declare against him that did so menace his seruant That he made assault vpon his seruant did beat him wound him and euil intreat him so often menaced to kill dismēber him did him so many iniuries wrongs that his said seruant durst not for such menaces for feare of being killed or maimed attend his businesse viz. the bailiwike of his husbādry his seruice in husbādry or kéeping of his horses beasts shéep c. And so his said busines seruice lay vndone the said pl. lost the seruice of his said seruāt frō the 20. day of M. vntil the 20. day of N. thē next following to his great damage against the K. peace whereof he cōplaineth that he is endamaged 20. l. And so note 7. E. 4. 24. 27. Ass p. 11. that a man shall not haue an Action of Trespasse for menace onely vnlesse he hath also thereby some other losse or hurt for the menace and the hurt which the partie doth sustaine thereby doe make the Trespasse and doe giue cause of the action of Trespasse But it is otherwise 20. H. 7. 5. if a man beat the wife or villaine of another for in those cases the partie wronged viz. the husband or Lord shall haue an action of Trespasse though hée hath receiued no losse nor hindrance in commoditie For hée must ioyne in suit with his wife to recouer recompence for the batterie and wrong done vnto her by the trespassor and also hee may punish him by action of Trespasse who beateth his villaine as hée may doe him who beateth his horse cow oxe c. Menacing a tenant whereby he departeth 5 And the same law is if one man doe so menace of life and member Li. Intr. 592 20. H. 7. 5. 9. H. 7. 7. the tenants of another which doe hold of him certaine lands and tenements at will paying to him therefore certaine yearely rent and seruices in respect of which menace the same tenants doe depart from their said tenements and leaue the said rents vnpaid and the same seruices vndone In this case the Lord or owner of the same tenements may haue an action of Trespas against such menacer in the Kings Bench or Common Pleas and declare of the sayd menacing of his tenants at will of their departure from his tenancies thereby and the losse and preiudice that he hath sustained by his rents vnpaid and seruices vndone and he shal recouer damages accordingly And in this case it is a good plea for the defendant Menacing
fine ImprisonmeÌ„t for offences done to the iustice of the Realme 57 As in the cases aforesaid imprisonment of offendors is both tollerable requisit when it is inflicted for misdemeanors done to the peace of the Realme so in many other cases it is as necessary when it is imposed for offences done to the law justice of the Realme being the foundation principall piller of the same peace and without the due execution whereof there can not be a general and perfect peace And amongst many other transgressors who doe offend contrarie to the justice of the Realme and yet in a sort doe preserue the peace the law doth principally note foure kinde of persons worthy for their offences to be imprisoned Whereof the first be they who doe commit some acts that be wrongfull iniurious and prohibited by the common lawes or Statutes of the Realme The second be they who doe attempt and prosecute vniust and wrongfull actions or suits to molest trouble or charge others The third be they who being impleaded vpon iust and good causes doe plead false or dilatorie pleas in retardation of justice and hinderaunce of the due and ordinarie course of the law The fourth be they who vpon stubbornesse contumacie or wilfulnesse refuse to doe that whâ—â—â— they know the law doth require at their hands and may enforce them vnto of euery of which amongst many I will insert some fewe cases ImprisonmeÌ„t for coÌ„mitting vnlawful acts As to the first by the Statute of Anno 5. Sta. 5. El. 14. Eliz. he shall be imprisoned and set vpon the pillorie who doth falslie forge or willingly assent or cause to be forged or made any false déede charter or writing sealed Forging of deéds Court Roll or the will of any person in writing S. Forgery â— to the intent that the estate of fréehold or inheritance of any person in any lands should be recouered or charged c. for forging of déeds is an iniurious and wrongfull act and alwaies hath bin hated detested and persecuted in this Realme Sta. 13. E. 1. 11. By the Statute of Westm 2. If the master do assigne auditors to any Bailifes Seruants Chamberlaines or other receiuors which are bound to yéeld accompt Accomptants found in arrerrages and it chaunce them to be found in arrerages all things being to them allowed they shall be arrested and by the testimonie of those auditors committed to the next Gaole which the King hath in those parts and shall be receiued by the Sherife or his Gaoler and prisoned fettered in irons liuing of their owne goods vntill they haue fully satisfied their master of all the arrerages for detayning of the arrerages of an accompt is a plaine and manifest wrong to the master 27. H. 6. 8. And this imprisonment must be presently after the accompt taken Disseison contrarie to his owne lease and not any distance of tyme after And he that doth a disseisin or maketh an entrie contrarie to his owne déede 14. Ass pla 12. Or is conuicted for the imbeziling of an Exigent or for some other notorious deceits committeth open and manifest iniurie and therefore shall be imprisoned 8. Ass â— 20. 28. Ass pla 28. If one man do make a lease of a Tenement by writing to an other for terme of life of the lessée whereupon the lessée doth enter and enioyeth it and after the lessor doth enter and disseise the lessée for life and then the lessée do bring an Assise against the lessor and recouer against him the Tenement leased in this case the same lessor shall be imprisoned for that he made an entrie contrarie to his owne deede and so willingly committed an open and manifest wrong 18. Ass p. 3. The same law is if a man do make a disseisin of land of his whole title wherein he hath before made a release or confirmation to the tenant of the same land in this case he shall be imprysoned And if a Gardian do take a feoffement of his wardes land being within age Fitz. Assise 395. he shall be imprisoned therefore for this and all the former be iniurious acts and knowen to the offendors to be prohibited by the law As touching the second point they be also worthy to be imprisoned who do attempt or prosecute vnlawfull suits to the trouble vexation of others As if one do bring an Appeal against an other 50. Ed. 3. 1. Imp. for prosecuting vnlawfull suits and that appeal do abate by the plaintifes nonsuit or by any other default of his he shall be imprisoned A woman brought an Appeal of the death of her husband against one 9. H. 4. 2. who was attainted and hanged at her suit and after shee brought an appeal against an other man of her said husbands death who pleaded the attainder of the first man in barre whereupon the appeal was abated and the woman committed to pryson for her wrongfull vexation and suit A woman brought an appeal against a man of the death of her husband 8. H. 4. 18. and her said husband was brought into the court and shée was examined if that were her husband who said yea but shée supposed that he had béen dead and therefore shée was imprisoned for her false appeal If one do bring an appeal against an other for a Murder Burglarie Robberie or other felony committed in W. in the County of N. and there is no such W. in that County the appeal shall abate and the plaintife shall be imprisoned for it is manifest that this suit was commenced vpon malice and to put the defendant to vexation and trouble and not vpon any iust cause Thirdly they are worthy to be imprysoned who do plead false Imp. for false or dilatory pleas or dilatorie pleas in hinderance of suits and retardation of justice As if a man in his plea do denie his owne deed 33. H. 6. 54. 45. Ed. 3. 11 6. Ass p. 4. 24. E. 3. 74. Sta. 34. Ed. 1 or do plead a false déed made to himselfe which is found against him by verdict or do plead a déed that is rased enterlined or otherwise suspicious that is adiudged against him he shall be imprisoned By the statute intituled De coniunctim feoffatis if the tenant in Assise do plead iointenancie of the land in demaund with his wife ImprisonmeÌ„t for false pleading of iointenancie or a stranger and sheweth a déed to testifie the same to the intent to abate the plaintifes writ and if it be found by the Assise that the exception was maliciously alleaged to delay the plaintifes right the said tenant shall be one yeare imprysoned though the assise passe for him against the plaintife And if that tenant in the assise be an Enfant who doth plead iointenancie yet if that plea be found against him 37. Ass pl. 1. he shall be imprysoned for that the said statute is generall 3. H. 6. 51. St. 13.
by the bringers hereof the bodies of the said C. D. E. F. conuicted of the said forcible holding by my record commanding you and euery of you in his Ma. name that you receiue them safely keepe them in your said Goale vntill they shall haue made their fine and ransome to the King and be deliuered thence by the order of the law Hereof faile you not vpon the perill that will fall thereof Dated at Salden the 30. day of I. in the third yere of the raigne of our soueraign Lord K. Iames c. 16 And though the words of the before rehearsed stat of 8. H. 6. be Vpō cōplaint made to the I. of P. or one of thē c. yet those words do not alwais bind a I. of P. to expect the cōplaint of the party grieued or to omit to do his duty in inquiring of repressing punishing of force because the party grieued by the forcible entry or detaining of possessiō is ignorāt in séeking lawfull redres for his receiued iniury or doth intēd to take his remedy by other means but a I. of P. hauing notice of such forcible entry A Iustice may inquire of forcible entries without complaint or detaining of possession by force though it be by others and not by the party grieued may and of duty ought to goe to the place where the same force is committed to make inquisition thereof 7. E. 4. 18. and if the force be found to make restitution to the party expelled or put out by force And so by his meanes the offendor shall be punished according to his desert the partie wronged shal be restored the king shall be intituled to a fine all which without the said Iustices diligence would be omitted An action of forcible entry 17 If a man that is seised of lands or tenements of an estate in fée simple Fitz. Na. B. 248. fée taile for terme of his owne life or for the terme of anothers life be disseised or expelled thereof by force he may haue an action of Trespas of forcible entry vpon the foresaid statute of 8. H. 6. against him or them that did so disseise or expell him thereof and so he may if he be put out 6. H. 7. 12. or disseised of his lands or tenements peaceably and after the disseisor or he that doth expell him 14. H. 6. 1. doth hold them with force And in like sort he may haue the same action 3. E. 4. 19. 10. E. 4. 11. if any doth enter into his said lands or tenements with force after doth defend and hold them by force then he which is so put out and holden out with force may haue this action though the words of the statute be in the disiunctiue viz. disseised with force or disseised quietly after holden out with force for that the intent of the statute was to punish all such forces whether it were vpon the entry disseisin made or vpon the holding and detaining of the land with force in all which cases he who is so disseised or put out may haue an action of forcible entry vpon the said statute of 8. H. 6. and shall recouer his damages and costs to the treble of that which shal be found by the Enquest that he is endammaged 19. H. 6. 6. 22. H. 6. 57. 9. H. 6. 19. hath spent in his suit The writ of forcible entry must be Vi armis as wel for the occupation as for the first entry And it is to be noted that the writ declaration in an action of forcible entry must be that the def entred vi armis and not illicite or by any other such words for if the writ be otherwise it shall abate seeing a writ of forcible entry is alwaies vi armis 37. H. 6. 23. 38. H. 6. 1. and proces of Outlawry lieth in it and the declaration must expresse the certainty of the lands whereupon the defendant did make his forcible entry and which they be and not suggest that he did enter vpon certaine lands in D. And in this action of Forcible entry 35. H. 6. 6. 49. Ed. 3. 2. Co. lib. 3. 12. and in all actions Quare vi et armis a Capias doth lie and where a Capias doth lie in the proces there after iudgement a Capias ad satisfaciendum doth lie and there the king shall haue a Capias pro fine Who may brīg an actiō of forcible entry 18 None can pursue or maintaine this action of Forcible entry Fit Na. B. 248. but he who hath fréehold at the least in the lands or tenemēts so entred vpon for tenant for terme of yéeres or a copyholder cannot maintaine this action for that the words of the said stat of 8. H. 6. be If any person be put out Sta. 8. H. 6. 9 or disseised of any lāds c. and the words of the writ grounded vpon the said statute be Expulit et disseisiuit and tenant for terme of yéeres or a copyholder cānot be disseised séeing disseisin is alwaies of a fréehold which neither of them haue in that land But if tenant for terme of yéeres or a copiholder be put out by force or put out peaceably after holden out with force of land which either of them doth hold by the said estate then vpon cōplaint made by the party grieued to a I. of peace after inquisition thereof by a Iury the same force found the said Iust may reseise the said lands cause restitution thereof to be made to the party so put out for in this case the same cōplaint may be made to the said I. of P. aswell by him in the reuersiō as by the tenāt for terme of yeres or copiholder séeing he in the reuersiō who is disseised of his fréehold by this forcible entry is may as well be termed the party grieued as the tenant for terme of yéeres or the copyholder for their said particular estates And when the Iustice of peace hath made restitution the particular tenant for terme of yeares or copyholder and also he or they in reuersion shall hold and enioy their said seuerall estates in the same lands 4. 5. P. M. Di. f. 142. in such sort as they did before the said Forcible entry made But if tenant for terme of yeares be expelled out of that land which he so holdeth for the terme of yeeres he in the reuersion cannot bring an action of Forcible entry vpon the statute of 8. H. 6. for the same although it be a disseisin to him for that the expulsion is not done immediatly to him Fit Na Br. 248. 9. H. 6. 19. 19 If a man do enter by force into lands or tenements He that hath title entreth by force wherunto he hath right or title to enter doth put out him who hath the freehold of the same lāds in this case he who is so
put out by force cannot maintaine an action of trespas of forcible entry against him who hath title to enter for that his entry was no disseisin to the other who was not lawfully seised thereof but he may invite him for this forcible entry this indictment being found he shal be restored to his possession againe by a Iust of peace by vertue of the said statute of 8. H. 6. And after that 22. H. 6. 18. he that did first enter forcibly by lawful title may again enter peaceably or bring an assise of Nouel disseisin at his pleasure Fit Na. B. 249. 22. H. 6. 37. 20 If a man do enter into lands or tenements disseise one with force He that hath possessiō sueth a writ of forcible entry and after the disseisée doth réenter againe yet the same disseisee may pursue an actiō of Trespas of forcible entry against the disseisor recouer his treble damages though he be seised of the land at the time of the writ brought And therefore it is not a sufficient plea in a writ of forcible entry for the def to plead that the plaintife was seised of the same land the day of the said writ brought 20. H. 6. 12. 22. H. 6. 23. 21 A man may haue a writ of Forcible entry of a rent as well as of land Forcible entry of a rent or common for one may distraine with force for rent and that doth counteruaile an entry with force And one may haue a writ of Entry of a rent which doth suppose that the def did enter into the rent And in an Assise of rent the disseisin may be found to be done by force 39. Ass p. 4. If there be thrée iointenants of land out of the which there is a rent going vpon a distresse taken one of thē maketh rescous by force he only shal be imprisoned yet the others be disseisors And the like law is of a commō of pasture for a commoner may be force be expelled or kept out of his common And a man may kéepe his beasts in another mans ground by force 27. Ass p. 30 claiming common where he hath no common and that is disseisin by force And in either of the cases aforesaid a Iust of peace vpō complaint to him made may remoue the force but not award restitution because they are to be taken vsed in another mans land 2. H. 7. 16. 17. Ass p. 14 22 If diuers do enter with force to the vse of another Forcible entry to the vse of another who himself doth not enter but after doth agrée to this entry to his vse this agréement doth make him a disseisor or a trespassor but he shall not thereby be punished for the force for there can be no forcible entry without an actuall entry Forcible detaining by words only And yet there may be a forcible detaining of possession by words only without act as if he that hath wrongfully but peaceably entred into another mans house expelled and put out the owner thereof shall say to the same owner if he do come thither againe to enter he will kill him this is a forcible detaining of possession 23 If there be two iointenants or tenants in common of certaine lands one of them doth expell put forth the other out of possession of the said lands by force Iointenants or tenants in common expelling each other by force he that is so expelled 8. Ed. 4. 9. 19. 10. H. 7. 27. Fit Na. Br. 249. 21. E. 4. 10. 18. H. 6. 5. may haue an action of Trespas of forcible entry against his companion that did so expell him vpon the said statute of 8. H. 6. for the words of the writ may be verified Expulit Disseisiuit and therupon he shall haue a writ of Restitution to restore him to his former estate But if one iointenant or tenant in common of lands doe expell the other by force out of the same lands he that is so expelled cannot maintaine a writ of Entry vpon the statute of 5. R. 2. against his companion that so put him foorth and suppose that he did enter into the same lands vbi ingressus non datur per legē for that his entry and possession in that land is lawful through the whole land in respect of his owne moitie or estate and further séeing by that action the plaintife is to recouer but only dammages as in an action of Trespas and not to be restored to his possession which action of Trespasse one iointenant or tenant in common cannot maintaine against another for any Trespas done in the land so holden by them Who may bring a writ of Entry vpon the statute of 5. R. 2. 24 None can maintaine a writ of Entry vpon the said statute of 5. R. 2. 8. E. 4. 9. 19. vbi ingressus non datur per legem but onely tenant in fée simple tenant in fée taile or tenant for terme of life at the least for tenant for terme of yeares a copyholder or a tenant at will cannot pursue and maintaine it seeing they haue but the manurance and occupation of the land 4. H. 7. 1. Neither can the King bring the said Action nor an Assise Eiectione firmae nor action vpon the statute of 8. H. 6. Nor any other action which doth proue him out of possession of the land Turning a watercourse by force 25 If a man do enter into another mans ground Plow Com̄ 467. and turne away by force an ancient watercourse which he hath running to his myll the party grieued may haue a speciall Assise of Nusance vpon the statute of 4. H. 4. against the offendor recouer his double damages yet he was not put out nor disseised of his freehold but a Nusance was done to the dammage thereof The plea of not guilty in forcible entry 26 In a writ of Forcible entry the defendant may plead not guilty Lib. int̄ fol. 330. Fit N. B. 249. 14 H. 6. 16. 22. H. 6. 57. 22. H. 6. 17. 9. H. 6. 19. 21. H. 6. 39. that shal be a good plea. But if the defendant doe plead some matter in barre yet he must in the end of the barre trauerse and deny the entry with force which is alledged against him as to say without that he did enter with force c. And the plaintife must answer to that speciall matter alledged in the barre without answering to the Trauerse of the force and vpon that speciall matter the issue must be ioyned and not vpon the force And if that speciall matter alledged in the barre be found by verdict with the defendant he shal be excused and the force shall not be inquired of But if it be found with the plaintife and against the defendant then the defendant shal be attainted of force and render treble dammages and treble costes without inquirie of the force
the land be seuerall yet their possession touching the profit thereof is ioynt And this Action is founded vpon the possession And whereas both the Statute of 1. H. 5. and 5. Eliz. doe ordaine that the partie and parties grieued shall and may at his and their pleasure haue and sue this Action of forger of false déedes in this case both the Ioyntenants and tenants in common be the parties grieued for that their land is molested troubled recouered or charged by this forged déed Fitzh Forger 5. But if there be two Ioyntenants or tenants in common of certaine land and one of them doth forge a false Release or other Déede whereby the whole land is intended to be conueied to himselfe in this case the other Ioyntenant or c. may haue an Action of forger of false déeds against his said ioyntenant or c. for that forged and false déede was made to the intent that the right or title of the forgers companion in estate should be molested troubled defeated or recouered And in this case he is the partie grieued to whose onely disherison the said forgery doth trench 21. H. 6. 4. 21 In an Action of forger of false déedes One sealeth a déed by an others commandement the Defendant pleaded that the Plaintife being seised of certaine land did couenant with a stranger to enfeoffe him of the same land whereupon the same stranger came to the defendant being a Clerk and requested him to make a déed of feoffment of the same land which he did and after by the plaintifes commaundement he sealed the same déede and after did reade the déede at the time of the liuerie and seisin which is the same forgerie and proclamation and that was adiudged a good Plea for when the defendant sealed the feoffement by the plaintifes commaundement and in his presence it was the plaintifes owne act and déede and his owne sealing and not the defendants for the plaintife did vse the defendants hand but as his instrument therein as men vnlearned doe vse an other mans hand to helpe or direct them to subscribe their names to a Deede 9. H. 6. 26. 7. H. 6. 34. 22 If the father do forge a déede and after dieth One forgeth and another doth publish and then his sonne doth find the same déede and doth pronounce publish or shew forth in euidence the same déede knowing the same to be false and forged to the intent the estate of fréehold or inheritance of any person of in or to any lands c. should be molested troubled defeated or recouered this is forgerie in the sonne and he shall be punished according to the foresaid Stat. of 5. El. And the same law is if one man do forge a déed or c. and an other man knowing thereof shall publish it to any of the intents aforesaid this is forgerie prohibited by the same statute for the same stat of 5. Eliz. is in the disiunctiue viz. if any person shall forge or publish Forgerie by antedating of a deed 23 If a man doe make a feoffement to one person of certaine land 27. H. 6. 3. and doth deliuer possession therof accordingly and after he doth make a feoffement to another person of the same land bearing date before the first feoffement but doth not deliuer it this last feoffement is not the feoffors déed But yet if hée do publish it to be his déed the first feoffée may haue an action of forger of false déeds against him for when he had made the first feoffement of the land hée then had nothing left in him of the same land And therefore when hée made the second antedated déed of that land it was a false and forged déed and then after publishing pronouncing or shewing it forth to be his déed it was with intent to molest trouble defeat recouer or charge the land of the first and lawfull feoffée and so he is punishable according to the foresaid stat of 5. El. as hée was before by the stat of 1. H. 5. 24 Though the foresaid two statutes of 1. H. 5. and 5. Eliz. were ordained to punish those who should forge any false déed or c. to the intent to molest trouble charge or recouer the right or title of any person in his lands tenements or hereditaments or to the intent that any person should claime any lease for yeares or annuitie or should forge any Obligation Bill obligatorie Release Acquitance or other discharge of any debt account action suit demaund or other thing personall yet was there no prouision in either of them to punish those who should get into their hands any money goods cattels iewels or things of any other persons by colour of a false token or forged or counterfeit letter for the redresse whereof by a statute made anno 33. H. 8. St. 33. H. 8. 1 it was enacted That if any person or persons of what estate or degrée soeuer hee or they be Getting of other mens goods by counterfeit tokens or letters shall falsely and deceitfully obtaine or get into his or their hands or possession any money goods cattels iewels or other things of any other person or persons by colour or means of any false tokē or counterfeit letter made in another mans name that then euerie such person persons so offending being thereof lawfully conuict by witnesses taken before the L. Chauncelor of England for the time being or by examination of witnesses or confession taken in the Star chamber before the K. honorable Counsel or before the Iust of Assise in their circuits for the time being or before the Iust of peace within any part of the K. dominions in their generall Sessions or by action in any of the K. courts of record shal haue suffer such correction punishment by imprisonment of his body setting vpō the pillorie or otherwise by any corporal pain except pain of death as shal be vnto him or them limited adiudged or appointed by the person and persons before whom he shal be so conuicted of the said offences or any of them Suspected persons called before the Iustices 25 As wel the Iust of Assise for the time being as also ij St. 33. H. 8. 1 Iust of peace in euerie countie whereof one to be of the Quorū shal haue power authoritie to call and conuent by proces otherwise to the said Assises or generall sessions any person or persons being suspected of any of the aforesaid offences to cōmit him or thē toward or to let him or thē to baile vntil the next Assises or general sessiōs there to be examined and further to be ordered by their discretions as is abouesayd Prouided alwayes that the Iustices of peace within euerie Citie Borough Towne and Franchise within this Realme or other the kings dominions shall haue like iurisdiction power and authoritie at their generall Sessions and otherwise to do and execute all and euerie
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
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
to haue execution of a fine if the shirife returne the tenant of the land summoned by two summoners whereas he was not summoned by which returne the demaundant shall recouer and haue execution of the land if the tenant do not appeare and the tenant shall loose the land in this case the tenant may haue a writ of Deceit against the shirife and the demaundant that did recouer and him that is then tenant of the land and shal be restored to his former possession And the like law is 17. Ed. 3. 12. if a man sue a Scire facias vpon a Recognizance against another for a debt before recouered Deceit to auoid a recouery of debt if the shirife returne the defendant summoned whereas he was not summoned by reason wherof the defendant hath execution awarded against him of the debt then the defendant may haue a writ of Deceit against him that had the execution and the shirife and the shirife shall be punished for his false returne and the party who did recouer shall make restitution of that which he recouered and if the defendant die his executors may haue a writ of Deceit Where executors shall haue a writ of Deceit and be restored if the deceit be proued and that the Testator was not garnished whereupon the garnishers shal be examined And so it is if a man recouer in a writ of Annuity Annuity and after doth sue a Scire facias and recouereth by default of garnishment Fitz. Deceit 42. the defendant may haue a writ of Deceit For by the statute of Anno 2. Ed. 3. St. 2. E. 3. 17. 17. a writ of Deceit holdeth place and is maintenable as well in case of garnishment which toucheth plea of land where such garnishment is giuen as in case of Summons in a plea of land for in all the cases aforesaid a Deceit was wrought by the shirife to the Court and the party grieued by his false returne and the Law hath ordained That euery of those deceits shal be reformed by the writ of Deceit And a recouerie and iudgement had made and giuen to the intent to defraud and frustrate the true meaning of a statute shal be void as amongst others it appeareth by the statute of Anno 43. A iudgement to defraud the meaning of a statute Eliz. whereby it was ordained St. 43. Eli. 9. That all iudgements which shal be had for the intent to haue enioy any lease of a benefite with cure or any bonds contracts promises couenants made for any person to enioy the same contrary to the statute of An. 13. El. 20. An. 14. El. 11. or any of them shal be void in such sort as bands couenāts are appointed to be void which are made void for that purpose for that the suits whereupon the same iudgements be giued were commenced prosecuted vpon collusion fraud to defeat and make frustrate the true intent and meaning of the said statutes or of one of them Deceit vhon recouery in a Quare impedit 8 If any person do recouer against another in a Quare impedit by default of the defendant whereas he was not summoned 27. H. 6. 5. Fitz. Deceit 57. 19. Eliz. Dyer 353. then the same defendant may haue a writ of Deceit and the Summoners and the pledges vpon the attachment and the mainpernors vpon the distresse shall be examined and if the deceit be found the first iudgement shal be reuersed and there shal be a writ awarded to the Bishop to remoue the Clerke that was in the Church And so it is Deceit vpon a recouery in wast if any person do bring an action of Wast against another 29. Ed. 3. 42. 48. Ed. 3. 20. Fitz. Deceit 30. the plaintife doe recouer against the defendant by default whereupon a writ is awarded to the shirife to inquire of the wast whereas the defendant was not summoned the defendant may haue a writ of Deceit against him that recouered in the same action of Wast and he shall suppose that hee was not summoned attached nor distrained and proces shal be awarded against the summoners the pledges and the mainpernors who shal be seuerally examined and if they all did not their duty according to the Law the plaintife in the writ of Deceit shal recouer and be restored to that which before he lost in the action of Wast Deceit vpon a recouery by a Praecipe in capite 9 And the like law is 17. Ed. 3. 31. 36. if any person doe recouer land against another by a Praecipe in capite where the same land is not holden of the King in chiefe but of a meane lord by other seruices and where the demaundant had no licence of the chiefe lord to sue at the common place then the chiefe lord may haue a writ of Deceit against him that recouered the same land wherein he shall recouer his dammages the demandant shal be imprisoned for the deceit and also the lord shal retaine his seigniory in the same land But the recouery shal remain in force and he that did recouer shall also hold of the K. in chiefe by the way of estoppell And this writ of Deceit is maintenable in this case by force of the stat of Magna Charta 9. H. 3. 24. whereby it is ordained That the writ which is called Praecipe in capite shal be granted to no man wherby any fréeman may loose his Court. 10 Couin is accounted so professed an enemy to iustice Where a good title shal be impaired by a couenous recouery therefore is so hated by the law that she adiudgeth that bad and vnlawful which is mixed with couin though before of it selfe it were good lawful as if the issue in taile who hath good cause to bring a Formedon in discender vpon a discontinuance made of certaine lands by one of his auncestors 44. Ass p. 28 41. Ass p. 28 be of couin that a stranger shall disseise the tenant of the land against which stranger he doth bring his action doth recouer this land and hath execution in this case he shall not be remitted to his former estate though his title be good but shall be adiudged in possession by disseisin 44. Ed. 3. 46. 15. E. 4. 4. 7. H. 7. 11 Co. lib. 5. 31 in respect of the couin And so it is if a woman that hath good cause to be indowed of her late husbands lands will be of couin that a stranger shall disseise the tenant of the land wherof she is indowable against which stranger she will bring a writ of Dower and recouer hath execution she shal be adiudged in possession against the disseisée but as a disseisor in respect of her couin though she had good title to be indowed And so couin mingling together vertue vice persuadeth the law to reiect condemne a lawfull title which is vnlawfully atchieued 11
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
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
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
shires and a President and Councel established there and in the Marches of the same with all officers clerkes and incidents to the same And that there should be Iustices of Assise and Gaole deliuerie there which should kéepe Sessions in euery of the said shires twice in the yeare and a Marshall and a Crier in euery circuit And that there should be original and iudiciall seales for the sealing of Writs and Proces in the said shires And that there should bee foure Prenotaries in Wales and also certaine Iustices of Peace and Quorum and a Custos Rotulorum Bailifs of Hundreds Sherifs Escheators Coronors Constables of Hundreds in euery of the said xij shires Then to preuent and auoyd extortion of the foresaid Officers in Wales and to the intent that the said Officers might know what money to demand and euery sutor what to paie for all Proces originall and iudiciall declarations pleadings c. by the said Stat. of anÌ„ 34. H. 8. it was particularly expressed how much should bee paied for the writing and sealing of originall and iudiciall Writs and proces The fées expressed to preuent extortion in Wales and what Prenotaries shal take for their fées what euery Marshall and Crier of the Iustices shall haue and what fées the said Sherifes and Coroners shall take in many diuers and seuerall cases But after in and by the said Stat. of anÌ„ 34. H. 8. it was further ordained That in all and euery Writs originall or iudiciall or other Proces pleas or writings which bée not expressed in the said ordinance the fées thereof as well for the seales as writing shal be rated by the said President Councell and Iustices or three of theÌ„ whereof the said President to be one by their discretion from time to time as the case shall require And they shall haue full power from time to time to assesse and appoint what fee the said Sherifes Escheators and Coroners and their ministers Prenotaries and their clerkes and other ministers of iustice in the said shire shall haue of the Kings subiects for any maner writs plaints pleas proces returnes or any other matter or thing concerning or belonging to the execution of their offices and roomes and to augment or diminish any fée or fées aboue declared as shal be thought by their discretions to be conuenient and méet for the common wealth of the kings subiects of those partes of Wales Oppression 1 OPpression is a grieuance done by one man or more to the hurt or preiudice of others What oppression is without any warrant of law or colour of iustice or it is a burden or charge which one man doth impose on another more than the law doth lay vpon him and is for the most part wrought by the superior in countenance abilitie or office to the inferior in the same for the oppressor sicuti Nimroth robustus venator tanquam Leo subuersor in domo sua is alwayes offering hard measure to them who are to deale with him vntill they be able and willing to resist him The fraudulent deceiuor yéeldeth a man something for his money or at the least giueth a faire colour so to do The extortioner is most times an officer and doth take paines and is worthy of his due reward so is tollerable vntill he wresteth more than his desert But the oppressor grapleth for what he can get and returneth nothing and wresteth to reap that which he hath not sowen and to gather fruit where he hath not grafted the marke he roueth at is his priuat profit respectâ—th not how many and how much he in that cause hurteth so that his owne purse be filled or his will be accomplished As Oppression by disseisin euerie disseisor who doth vnlawfully expell and put another man out of his fréehold may aptly be termed an oppressor for hee doth not put in practise that iniurie couertly and secretly by fraud and collusion vnder hand as the deceiuor extortioner do but by plain and open wrong and doth stand in the face of al his beholders and commonly iustifieth that which he hath done And therfore as the said disseisin and oppression is manifest so hath the stat of West 2. appointed a speedie and manifest remedie to the disseisée to redresse and reforme the same which is by an Assise of Nouel diss to the end that as he was newly and lately disseised so he might be quickly and spéedily restored And because the law doth adiudge a man oppressed and iniured who is disseised of estouers of wood Of what things one may be disseised or of profit to be taken in wood nuts acorns and of other fruit to be gathered or of a corrody of deliuering corne and other victuals and necessaries to bee receiued yearely in a place certaine or of toll tonnage passage pontage pawnage or such like things to be taken in places certain or of the kéeping of woods forrests parks chases warreines gates and other bailiwikes and offices in fée or of common of pasture turbaries fishing and such like which a man hath belonging to his fréehold or without his fréehold by speciall déed at the least for terme of life or when one man doth pasture anothers seuerall or when tenant for yeares or garden of a tenement doth alien the same in fée whereby the fréehold is transferred to the feoffée St. 13. E. 1. 25. therefore in all the cases aforesaid that said stat of West 2. doth giue to the party so oppressed and disseised his remedie to recouer the same by the said Ass of nouel diss in which the writ shal be De libero tenemento If tenant by Elegit be put out of the tenement which he hath in execution St. 13. E. 1. 25. St. 13. E. 1. or tenant by Statute marchant be put out of the land which he hath in execution or tenant by Stat. staple be put out of the land which he hath in execution or tenant by Recognisance in the nature of a Statute staple his executors St. 27. E. 3. 9 St. 23. H. 8. 9. administrators or assignes or any of them be disseised or put out of the land which he or they haue in executioÌ„ he or they so disseised or put out may haue maintaine an Assise for it is to him or them a disseisin an oppression St. 32. H 8. 7 If any person who hath an estate of inheritance or fréehold in any parsonage vicarage portion pention tithes oblations or other Ecclesiasticall profit made temporall be deforced kept or put from the same this is a disseisin and oppression the party so wronged may haue an Assise to recouer the same And if any Escheator St. 3. E. 1. 24 Sherife or other of the K. Bailifes shall by colour of his office without speciall warrant or certaine authoritie which belongeth to his office disseise any man of his fréehold or of any thing which belongeth to his fréehold this is an oppression
lesse without award of the Kings Court he shall make fine according to the quantitie of the trespas and neuerthelesse sufficient amends shal be to them which haue receiued losse by such distresse Distraining out of his fee. Or if one do distrain another to come to his Court which is not of his fée or vpon whom hee hath no iurisdiction by reason of his Hundred or Bailiwike or doe take a distresse without his fée or the place where he hath iurisdiction or bailiwike hee shall make fine according to the quantitie of his offence Excessiue distresse Or if one do take any vnreasonable excessiue distresses which is grieuous and more than the quantitie of the debt or damages this is an oppression an he shall be amerced 41. Ed. 3. 26 29. Ed. 3. 23. As a man auowed the distraining of 200. shéepe and 16. beasts for ij pence rent and he was amerced therefore for all that he tooke aboue vj. shéepe were adiudged an oppression and so vnlawful But if a man distraine for homage 28. Ass p. 50 42. Ed. 3. 26. Co. li. 4. 8. Fitz. Na. Br. 178. 27. Ass p. 51 28. Ass p. 50 the distresse cannot be too excessiue how many beasts soeuer he doth take for that homage is not valuable though for rent fealtie and other seruices it may be excessiue And in like sort Oppression by often distresse if the Lord of a Mannor or any other who hath rent issuing forth of certaine land do distraine the tenant of the same land diuers times for rent or seruices where none is behind vnpaid this is an oppression of the same tenant who is distrained for in this case the partie who claimeth this rent cannot distraine for rent séeing none was due to him but his distresse is onely taken to vexe the tenant of the land and so to oppresse him And therefore the sayd tenant may haue an Assise of Souent foits distresse against the same Lord and recouer dammages of him according to the losse he hath receiued by the same distresses viz. for not plowing or for not manuring his land Lib. in t 82. Co. li. 4. 8. or for taking no profit thereby But it is otherwise if the same seuerall distresses were taken for homage Seueral distresses for one thing And so it is if a man do distraine for rent or seruices or for any other thing Fit Nat. Br. 71. and depending a suit betwéene the parties for the same rent seruice or other thing he who did distrain doth distrain again for the same rent seruice or thing for the which he did distrain before the beasts or goods of him whose hée did first distraine this is an oppression of him whose goods be twice distrained For the redresse whereof hée may haue a writ of Recaption A writ of Recaption against him who so did distraine his goods twice for one cause whereby hée shall recouer dammages for his second distresse And also hée that did take the same distresse shall make fine to the King for his oppression and wrong though the first distresse were lawfully taken yea and though the rent or seruice for the which he did distraine were behind vnpayed or vndone séeing by the first distresse the cause being prooued true and lawfull hée might haue had returne of the goods or cattell which hee did distraine vntill hée had béene satisfied of the rent seruice or thing for the which hée did distraine But a man may distraine the cattell of him who bée eating of his corne or grasse Distresses for damages for t or doing any other hurt in his ground 47. Ed. 3. 7 so often as he shall find them doing hurt therein and it is no oppression or wrong so to do for he doth not distraine twice for one cause as in the former case but distraineth seuerall times for seuerall new offences 4 And euerie Trespasse which the law doth interpret to bee iniuriously committed vi armis may also fitly be termed an oppression for it is done vpon the offendors owne wrong without warrant of law St. 5. R. 2. â— As if one person doe enter vpon anothers land expell him out of the possession therof whereas his entry is not giuen by the law or doth enter with strong hand or multitude of people Fitz. Tresp 13. 45. 234 20. H. 6. 22. 9. Ed. 4. 28. 9. H. 6. 64. 21. H. 6. 5. 21. Ed. 4. 18. 9. Ed. 4. 29. 10. Ed. 4. 4. 21. Ed. 4. 4. 1. H. 7. 10. 37. H. 6. 36. 21. H. 7. 1â— 11. H. 4. 64. 20. H. 6. 14. 3. H. 6. 12. 10. H. 6. 16. 43. Ed 3. 13. 4. Ed. 3. 48 47. Ed. 3. 22 43. Ed. 3. 35 1. H. 5. 1. and not in peaceable manner this is an oppression And so it is Oppression by Trespasses if one person doe pull downe breake or impaire anothers house or any part thereof Or if one person doe fell cut downe or carrie away the Timber Trées or Wood of another Or if one person doe fell cut tread downe or carrie away the corne or grasse of another Or if one person doe with his cattell depasture feed or eat the corne grasse or hay of another Or if one person doe take and carrie away the money plate iewels houshold-stuffe cattell corne hay or any kind of goods of anothers Or if one person doe plough till eyre or digge the ground or soyle of another Or if one person doe mayme imprison wound or beat another or doth mayme wound or beat the seruant of another whereby he looseth his seruice Or if one person doe hunt chase or hawke in the frée Warren of another or doe take kill or destroy his game there Or if one person doe fish in the Pond Poole Mildam Stew or other seuerall fishing of another Or if one person doe breake the doue-house of another or destroy the flight of the doues of another Or if one person doe digge the Myne of Tinne Lead Stone Coale Grauell Sand Matle Chalke c. of another Or if one person doe pull vp take away the meerestones which by consent haue béen set betwéen his own ground and anothers In all and euerie of which cases the partie grieued may pursue an Action of Trespasse against the offendor and declare that hée committed any of the said offences vi armâ—s wherein if the defendant be attainted hée shall pay to the plaintife his dammages sustained and to the King a fine for that he hath done an oppression to one of his subiects and made an offence to the law Fit Nat. Br. 183. 4. Ass p. 3. 5 Euerie Nusance which one person doth to the land of another Oppression by Nusances wherein the owner hath an estate for the terme of life in tayle or in fée simple may also bée accounted an oppression for those Nusances be put in practise by the offendors onely will and by his owne open playne and manifest
wrong to the disheritance of another or to the preiudice of his Fréehold without any warrant of law 18. Ed. 3. 22. 21. Ed. 3. 2 Co. li. 5. 101. Li. Int. 406. or colour of iustice As if one person doe build or leuie a house a wall a shead a leantor a chimney a gutter or other structarie in his owne ground to the offence of anothers fréehold or to the drowning or rotting of his house or to the stopping of his light or way thereunto this is an oppression 46. Ed. 3. 23. 7. Ed. 3. 56. And if one person doe leuie rayse abate or pull downe a Damme Poole Pond or Ditch to the hurt of anothers Fréehold that is an oppression 27. Ed. 3. 88. 12. H. 4. 3. 8. Ed. 4. 5. 48. Ed. 3. 27 8. Eliz. Dyer 2 50. 14. Eliz. Dyer 319. And if one person doe stoppe straiten or turne an auncient water-course to the hurt of anothers Freehold or in such sort as it doth drowne the ground or soyle of another that is an oppression And if one person do stoppe streiten or greatly impaire anothers highway which hée hath belonging to his Fréehold that is an oppression If one person doe conuey water to his house or ground by a pipe of lead timber or vault of stone and another person will make another pype out of that pype to take away part of the same water that is an oppression of him that made the first pype And if one doe erect a lime-kill néere vnto anothers dwelling house 4. Ed. 3. 36 5. Ed. 3. 43. 4. Ass p. 3. the smoake and heat whereof when it is set on fire doth annoy the inhabitant of the said house and his familie or doth scorch or dry vp the fruit trées in his orchard that is an oppression And if one person hath the fréehold of a seueral fishing in a riuer pond poole moat mill damme or other water Lib. in t 406. and another person wil build a dye-house adioyning or neere vnto it and then will powre out or cause to run from thence corrupt ashes dung slime filth or other annoyances into the said seuerall fishing place to the distruction of the fish there whereby the owner doth loose the benefit of his seuerall fishing that is an oppression of him And if one person will erect or settle vp a Faire or Market Fit Nat. Br. 184. Register 197. 199. Li. Int. 407. to the preiudice or hinderance of anothers Faire or Market that is an oppression of him who had the first Faire or Market And if one person do lay timber faggots stones lime sand grauell dung or any other thing vpon or against the house of another which do rot putrifie corrupt or impaire the walls timber or other part of the same house or any corrupt noisome or stinking thing the sauor or smell whereof is offensiue to the inhabitant of the same house and his familie that is an oppression of the same inhabitant The remedies for oppression by Nusances In which foresaid cases the parties grieued by the said Nusances and oppressions may in some cases haue their remedies by Assise of Nusance brought in the Common Pleas in some other cases by writs of Nusance called Vicountiels tryed in the Countie before the Sherife in some other cases by the writ of Quod permittat in some other cases by action vpon the case and in most of the sayd cases the sayd parties grieued by the sayd Nusances may take away pull downe Co. li. 5. 101. and remooue the same Nusances as their seuerall estates will enable them or their seuerall cases doe require Oppression by Rescous 6 Euerie Rescous that is vnlawfully made of cattel or other goods distrained is an oppression for the offendor doth a wrong of his owne authoritie to the preiudice of another in contempt of the iustice of the Realme without any warrant or colour of law Séeing when the partie grieued by himselfe 44. Ed. 3. 20 40. Ed. 3. 32. 17. Ed. 3. 43. 18. Ed. 3. 30 2. H. 4. 15. or some other doth distraine within his fée for his rent or seruices behind for dammages which hée hath sustained for amerciaments a rent charge or for some other cause which hée taketh to bée lawfull the cattell or other goods of him who he doth conceiue detaineth his due rent or seruice from him or whose cattell haue eaten or spoyled his corne or grasse or otherwise haue trespassed in his ground and doth in quiet and peaceable manner driue them towards the pownd there to remaine as a pledge sub custodia legis vntill the law hath decided whether there was iust cause of distresse or not the owner of the same cattell or some other in his behalfe will by force and strong hand make Rescous of this cattell and take them from him who distrayned them and so will not submit himselfe to the censure of the law nor tarrie vntill it be discussed by the ordinarie course of iustice whether the party that distrained had lawfull cause so to doe or not but will be his owne iudge and take the authoritie of reuenge to himselfe which is an oppression of him whose rent or seruices were due and vnpayd or whose corne or grasse was eaten c. and who was also forcibly depriued of the ordinarie remedie which the law did assigne him for the recouerie of his owne duetie And moreouer it is a contempt of the law which the same offendor doth refuse to be iudged by 7. H. 6. 1. 22. H. 6. 54. Fitz. Na. Br. 101. and therefore in this case the partie grieued may pursue against the offendor a writ of Rescous for this Rescous made and oppression done vnto him and thereby recouer his dammages and also the King shall haue a fine of him for this contempt of his law and his peace broken Li. Int. 527. and the offendor shall be imprisoned vntill hée hath paid the same 7 Euery Encrochment which one person doth make vpon anothers land Oppression by incrochments ground couered with water rent or seruice is also an Oppression for they be done and put in practise by the offendors own open plaine manifest wrong without any warrant or colour of the law As it is an oppression for one person by ploughing earing ditching hedging remoouing of Méerestones or land markes 22. Ass p. 93 to get away the ground or soyle of another and so it is for one person to draw away or alter an auncient Riuer Brooke or Streame of another persons out of the old and wonted course and so it is if there be lord and tenant and the tenant doth hold his land of his lord by fealty fiue shillings of yearely rent and of late yeares the lord hath had seisin of more rent of the tenant by the tenants owne payment without cohertion of Distresse if in this case the lord will distraine his tenants Cattell for that surplusage of rent that
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
suffer to bée drowned continually a Meddow or other ground demised for it is not lawfull for a particular Tenant to conuert ground to any other vse then hee receiued it as to turne Meddow into arable arable into Wood 29. H. 8. Dyer 37. Wood into Pasture or Meddow arable or Wood into Pooles or Ponds for thereby he doth wrong to the inheritance for his owne profit And likewise it is wast if the Tenant doe suffer the Bankes of the Sea or of a Riuer to be vsually ouerflowne and to decay whereby a Meddow a Pasture 20. H. 6. 1. or other ground which he holdeth for life or yeares that before was fruitfull shall become rushie sedgie or otherwise barren But if he suffer ground set with Saffron to decay or Land Meddow 10. H. 7. 2 Fit N.B. 59 2. H. 6. 10. or Pasture to grow full of Bushes or Thornes or to lye fresh and not manured it is no Wast but euill husbandrie If the owner of a Poole or Pond stored with fish doe assure the same for yeares life or c. and the tenant letteth foorth the water or otherwise fisheth the same and taketh foorth the fish or part thereof and yet leaueth it as sufficiently stored at the end of his terme 7. H. 3. Wast 141. 5. R. 2. Wast 97. Ed. 1. Wast 128. as at the beginning thereof he found it this is no Wast But if hée doe let foorth the water of the said poole or c. and suffer the same to lye continually dry or doe destroy by other meanes the fish therein and doe not repaire it and leaue it as well and sufficiently stored with fish as he receiued it by the view and iudgement of the countrey then it is wast and hée may bée punished therefore by an action of Wast And the same Law is if one doe assure to another for terme of yeares or life a Parke stored with Déere and the tenant destroyeth all the Déere and doth not store the same againe with as many before the end of his terme this is Wast If the tenant for terme of life yeares or c. of a seuerall Pasture or Close inclosed with a Wall Pale or Quick-set hedge 12. H. 8. 1. doe suffer the same to decay it is wast for by the decay of the Wall Pale or Quick-set hedge he hath made it no pasture but layed it in common As concerning wast in houses it is wast Wast in houses and an oppression of him or them in reuersion or remainder if the tenant for terme of yeares life or c. doe willingly pull downe 34. E 3. Wast 145. 3. H. 6. 53. 4. Ed. 3. Wast 22. 21. H. 6. 46. 38. E. 3. 7. 40. E. 3. Wast 90. or negligently suffer to decay a dwelling house or any Hall Parlour Chamber Buttery Kitchin Brew-house Bake-house Day-house Doue-house Barne Stable Oxe-house Kill-house Myll Cottage or any other House Cullice Leantor Edifice or Building being of the value of thrée shillings foure pence which being couered and in good repaire was standing and béeing vpon the ground when the same tenant did or lawfully might haue entred vpon the lands demised in respect of his Lease 17. E. 3. 7. 42. Ed. 3. 22. 17. Ed. 2. Wast 118. or other estate to him assured thereof And also it is wast if any of the particular tenants aforesaid doe during his estate build any new House Floore or Partition vpon any land demised or conueyed vnto him and after hée or his assignées doe pull downe the same againe or suffer the same to fall into ruine and decay for that the House Floore or Partition being builded was once parcell of the inheritance of the Lessor and therefore béeing againe pulled downe or decayed it is to his disheritance But if the Lessor doe build a house vpon the ground so demised or assured 49. Ed. 3. 1. during the estate of the particular Tenant therein and the Tenant doe pull it downe or suffer it to decay it is no Wast for it was not parcell of the thing demised neyther was there any couenant in Law that it should bée repaired And it is Wast if any of the Houses Edifices or Buildings aforesaid bée willingly or negligently burned 19. Ed. 3. Wast 30. 20. Ed. 3. Wast 32. pulled or throwne downe by the Tenant thereof or by any of his Family or Neighbours or by any other person whatsoeuer so that it bée not by the kings enemies Thunder Lightening extreame Wind or Tempest in which cases it is no Wast punishable by the Law 44. E. 3. 34. 43. Ed. 3. 6. 28. H. 8. Dyer 33. 33. H. 6. 1 séeing they were burned or throwne downe by the power and hand of God But it is otherwise if it bée burned or ouerthrowne by Rebels or others against whom the Tenant may haue his remedie and recompence by the Law For in that case it is punishable by action of Wast if it bée not repayred againe within conuenient time If a Tenant for life 44. E. 3. 44. 10. H. 7. 5. 29. H. 8. Dyer 36. 21. H. 6. 2 Fit N.B. 59. 40. Ass p. 22 yeares or c. doe suffer a Pale or a wall of Stone Bricke Timber or Mudde which is couered with Slate Tyle Timber or Thatch to decay or lye vncouered it is Wast But if any House Pale or Wall were ruinous or vncouered at the time when the estate of the sayd Tenant begun and after did decay and fall downe then the tenant is not chargeable therefore in an Action of Wast for hée is bound to kéepe them in none other repaire then he found them If the tenant for yeares or life or c. doe take away a partition or a loft in a house 10. H. 7. 5. 42. E. 3 6. whereby hée doth make two chambers or other two roomes or more but one it is wast for the tenant must maintaine the house and leaue it in such sort as it was demised vnto him and not transpose or alter any part thereof otherwise then hée receiued it And in like sort it is Wast if the said tenant doe take away a Furnace a Bench a Table fixed in the ground a Doore 21. H. 6. 26. or a Window from a house which were there at the time when his estate began for they bée made parcell of the inheritance of the house and were demised with it and cannot bée seuered from it but by him who hath the inheritance thereof And yet if the same were set there by the termor then hée may take them away againe at any time during his terme 20. H. 7. 13. but not after his terme expired And it is Wast if the Tenant doe take away the glasse of the windowes of a house Co. li. 4. 63. for whether the lessor or the lessée did set vp the same glasse and whether it bée set vp with nayles lyme or otherwise the â—ermor ought not to take it away
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
then doe sue execution of the said Statute against the same Conusor 47. E. 3. 3. 45. E. 3. 17. 3. H. 4. 12. 31. E. 3. or any feoffée of any part of his land this is a great iniurie and oppression and therefore in this case the said Conusor or his feoffée is to bée relieued by an Audita querela If a statute be made acknowledged by one person to another and then committed in ouell maine to a straunger to bée deliuered to the Conusée vpon certaine conditions performed 12. H. 4. 13. 43. E. 3. 17. and after the same stranger doe deliuer the said Statute to the Conusée before the conditions performed whereupon he doth sue execution thereof against the Conusor this is a great wrong and oppression of the Conusor and therefore hée may haue an Audita querela vpon this matter in fact stay the the exeeution and thereby redresse this iniury If one person be bound to another by Statute or Recognisance for the paiment of a summe of money 45. E. 3. 17. 47. E. 3. 3. 9. H. 4. 5. 13. H. 7. 22. 16. El. Dyer 332. and after the Conusor doth make seuerall feoffements of seuerall parcels of his land to diuers persons and then the Statute or Recognisance is forfeited and the Conusée doth sue execution thereof against one of those feoffees onely this is a wrong and oppression of him for that al the land of the conusor which he had at the time of the said stat or recognisance acknowledged or at any time after ought to be charged and extended for the paiment of this debt to the intent the money might be the sooner paid and the execution more spéedily discharged And therefore the same feoffée whose land is so extended may haue an Audita querela or a Scire facias as the case requireth to defeat the execution against him Co. li. 3. 14. 23. Ed. 3. Execution 127. and thereby hee shal be restored to all the meane profits and to compell the conusée to sue execution of all the land which was the conusors at the time of the said Statute or Recognisance acknowledged or at any time after and so the land of euery terre-terre-tenant shall bee equally charged and each person contributorie to the same extent in respect of his land If the conusor after a Statute or Recognisance acknowledged doe make many feoffements of seuerall parcels of his land to diuers persons and then all or any of those feoffées lands bee extended by force of the same Statute c. the partie or parties grieued by the same extent 9. H. 4. 5. may procure an Audita querela to cause the lands of the conusor to bée likewise extended for hée or they be wronged and oppressed by the said conusors former Act and meanes But on the other side if the land remaining in the hands of the conusor bée extended by the conusée by force of the said Statute or Recognisance the conusor cannot maintaine an Audita querela against his seoffées or any of them 23. Ed. 3. Fitz. Execution 127. 45. Ed. 3. 22. to cause their lands to be extended for hée is not vexed or oppressed by the same extent by any of their meanes nor for any of their debts but for his owne debt though in the case before rehearsed they bee troubled and oppressed for his debt for when any person doth become bound by Statute or Recognisance to another and after alieneth his land or any part thereof to a stranger the body of the conusor remaineth debtor to the conusee in respect of his acknowledgement and confession of the same made of record before a competent Iudge or officer thereunto lawfully assigned and the debt is his and the burden thereof is his and the land is onely chargeable in respect that it was in his hands at the time of the Statute or Recognisance acknowledged or after and so the conusors person and the land in his hands is onely chargeable in that case As in like case if a man doe become bound by Statute or Recognisance to another and after the conusée doth purchase parcell of the land of the conusor 11. H. 7. 4. 13. H. 7. 22 45. Ed. 3. 22 2. El. Dyer 193. Plo. Com. 72. and then the Statute is forfeited the conusée may extend the Statute take and imprison the bodie of the conusor and haue the residue of his land deliuered to him in execution and the conusor shall haue no remedie by Audita querela against the conusée for that the conusor is not wronged or oppressed by this extent seeing hée himselfe is the onely debtor of the conusée and his body lands and goods are liable to the payment of this debt and not the lands in the hands of the conusee And so it is if a man bée bound by Statute or Recognisance to another and after the conusée doe purchasse parcell of the land of the conusor and a stranger purchaseth another parcell of land of him and then the Statute is forfeited and the conusée doth sue execution of the land of that stranger the other purchaser that is a wrong and oppression and therefore the said straunger may sue an Audita querela against the said conusée 11. H. 7. 4. 13. H. 7. 22. Fitz. N.B. 105. and thereby discharge his land of execution for that the said conusée hath discharged this land by his own Act viz. by purchasing of parcell of the land charged for by the Statute or Recognisance acknowledged the whole land was charged and by purchasing of parcell by the conusée hée hath discharged the whole sauing that which remaineth in the hands of the Conusor If an Infant within the age of one and twentie yeares be bound by Statute or Recognisance and the Conusor will extend the same the Infant may pursue an Audita querela to auoid the same either during his minoritie if by inspection the Court shall adiudge him within age 6. Ed. 3. 39. 23. Ed. 3. Au. qu. 26. Fi. N.B. 104 or after he shall accomplish his full age for it was a wrong and oppression practised by the Conusée to abuse the tender age of the Infant and to vrge a Statute of him before the Law did enable him to acknowledge it And the like Law is if one person will acknowledge to another a Statute by Dures of imprisonment and then the Conusée doe sue execution of the same the Conusor may prosecute an Audita querela and auoyd the Statute for in this case the Conusée hath done to the Conusor a double wrong and oppression viz. first to imprison him and thereby to exact act a Statute of him and then contrarie to the warrant of Law to extend the same against him And as in the cases aforesaid so likewise in all other cases where any person hath iust and lawfull cause to seeke and haue reliefe by an Audita querela Fi. N.B. 104 20. Ed. 3. Au. qu. 27.
another manner of Treason when a seruant killeth his Master c. although there be therein no mention made of the Mistresse yet if a man or woman seruant do kill his or her Mistresse or Dame A seruant killeth his Master or Mistresse it is Petit treason 19. H. 6. 47. 12. Ass p. 30 and within the puruiew and meaning of the said stat though it be not within the letter thereof and it was Petit Treason by the common law for the seruant is retained to serue as well the one as the other and to be obedient as well to the one as to the other and one of them hath affiance in the seruant as wel as the other And if a seruant kill his Master after he is out of seruice 33. Ass p. 7 Co. li. 1. 99. if it be vpon a premeditat malice conceiued against him during the time that he was in seruice it is petit Treason for the execution of the fact doth respect and looke backe to the originall cause which was the malice the seruant conceiued against his Master when he was his seruant If a seruant do procure one to kill his Master 40. Ass p. 25 who doth kill him in the seruants presence this is petit Treason in the seruant but if he do kill him in the seruants absence then is it not petit Treason in the seruant but he is accessory to murder 2. 3. P. M. Dy. 128 A woman seruant conspired with a stranger to rob her Mistresse and at a time appointed in the night she did let him into the house and led him to the bed with a candle where her Mistresse lay sléeping the same stranger killed her Mistresse in her bed the seruant saying or doing nothing but holding the candle in this case the seruant committed petit Treason and was adiudged a principall therein though the partie who did the bloudy fact The wife cōspireth with another to kill her husband was but a murderer P. 16. Eliz. Dyer 332. If a wife and a seruant do conspire to kill the husband and appoint a time and place for it and the seruant killeth the husbād in the wiues absence this is petit Treason in them both though the wife bée absent and yet the law is otherwise if he be not a seruant but a stranger for if a woman procure a strāger to kil her husband which he doth in her absence she shal be hanged and not burned for that the principall offendor was a murderer and not a Traitor as the seruant was in the former case 4. Ass p. 25. And so abettors and procurers Abettors and procurers in petit Treason be within this part of the stat touching petit Treason although they are not expresly named within the letter of the statute The son killeth father or mother 8 Some do affirme it to be petit Treason in the sonne or daughter 21. Ed. 3. 17. to kill the father or mother and some others doe not thinke it to bée so vnlesse the father or mother doe at the same time giue meat and drinke to that sonne or daughter which doth kill him or her as to a seruant and so that the Treason should be in respect of the duetie of seruice broken and not of duetie of nature violated Breaking of prison 9 It is Petit Treason if a man outlawed of felonie 1. H. 6. 5. and imprisoned in the K. Bench be attainted for breaking of prison and letting at libertie such persons as were there imprisoned for Treason and the offendor shalb◠drawn and hanged An Indictor doth discouer counsell And it hath béene adiudged petit Treason in some age 27. Ass p. 6◠and felony in another age S. Felonie c. 15. for one of the indictors to discouer the K. counsell and his fellowes but sithence it hath béene taken onely as finable to the King Treasons by Statutes 10 Besides the before mentioned offences which be explained to be Treasons by the common lawes of this realme and besides all the offences aforesaid which were made Treason by the seuerall stat before rehearsed and after repealed by the foresaid stat of An. 1. M. there haue béen sithence that time seuerall other offences made high Treason by seueral stat which I wil set down in order as they were made and as néere as I can gather expresse the causes why they were made For as much as by the lawes of this Realme small and no due and condigne punishment was before prouided for such euill disposed persons as shold counterfeit or forge such kind of gold or siluer of other realms as is not the proper coine of this realm and yet permitted by the Quéens consent and heretofore suffered by her progenitors to be currant in paiment within this realme nor for such persons as shold counterfeit the Quéens signe manuall St. 1. M. 6. her priuie signet or her priuie seale therfore by a stat made An. 1. M. 6. it was enacted Forging the coins of other realms currāt in this realme That if any person or persons shall hereafter falsly forge or counterfeit any such kind of gold or siluer as is not the proper coine of this realme and is or shal be currant within this realme by the consent of the Q. her heires or successors or if any person or persons at any time hereafter doe falsly forge or counterfeit the Qu. signe manuall priuie signet or priuie seale Forging the Kings signet Manuall c. that then euery such offence shal be déemed adiudged high treason the offendors therein their counsellors procurers aiders and abettors being conuict according to the lawes of this realme of any the said offences shall be likewise déemed and adiudged Traitors against the Qu. her heires and successors and the realme and shall suffer and haue such paines of death forf of lands goods and cattels and lose the priuiledge of all Sanctuarie as in case of high Treason is vsed and ordained 11 Where sundrie coynes of gold and siluer of other realms not being the proper coine of this realme of England and by the sufferance of the K. and Q. be currant in paiment within this realm many euil disposed persons for their owne corrupt lucre did bring into this realme from the parts beyond the sea great quantitie of forged and counterfeit money like to the said coine of other forreine realmes and did vtter the same by marchandises and otherwise to diuers subiects of this realme to their great damage for that there was not any sufficient law then prouided for the condigne punishment of the offendors in that behalfe St. 1. 2. P. M. 11. therfore by a stat made An. 1. 2. P. M. it was established That if any person or persons shal bring from the parts beyōd the sea into this realme or into any of the dominions of the same Bringing in of
counterfeit money any such false and counterfeit coine of money being currant within this realme as is aforesaid knowing the same coine or mony to be false counterfeit to the intent to vtter or make paiment with the same within this realme or any the dominions of the same by marchandizing or otherwise then all euery such person or persons so offending as is aforesaid their counsellors procurers aiders and abettors in that behalfe shal be déemed and adiudged to be offendors in high Treason and shall suffer after lawfull conuiction or attainder thereof such paines of death losse and forf of lands goods and cattels as other offendors shall do in cases of high Treason And all euery person and persons By what euidence an offendor shal be indicted or attainted that shal be accused or impeached of any of the offences contained and prouided for in this stat or of any other offence or offences cōcerning the impairing coūterfeiting or forging of any coin currant within this realme shal and may be indicted conuicted or attainted by such like euidence in such manner and forme as hath béene vsed within this realme at any time before Anno 1. Ed. 6. Any Statute custome law c. notwithstanding 12 Because diuers false and euill disposed persons for wicked lucre gains sake did diminish impaire and falsifie the money and coynes currant within this Realme Clipping washing roūding or filing of money by clipping washing rounding and filing therof to the dishonor of the Quéene and losse of the subiects of this Realme for the remedy wherof by a stat made An. 5. El. it was enacted That clipping washing rounding St. 5. El. 11. or filing for wicked lucre or gaines sake of any the proper monies or coynes of this realme or the dominions therof or of the monies or coines of any other realme allowed and suffered to be currant within this realme or the dominions thereof at this present or that hereafter at any time shal be the lawful monies or coines of this realme or the dominions thereof or of any other realme and by proclamation allowed and suffered to bee currant here by the Qu. her heires or successors shal be taken and adiudged by vertue of this act to be treason and the offendors therein their counsellors consenters and aiders shal be taken déemed and adiudged as offendors in Treason and being thereof lawfully conuicted or attainted according to the due order of the law shall suffer death and lose forf all his and their goods and cattels and also shall lose and forf all his and their lands and tenements during his and their naturall life or liues onely To whom the forfeiture shall accrue And euery person which hath any lawfull grant to haue and enioy the forf of lands goods or cattels of offendors and men attainted of high treason within any Manor Lordship Towne Parish Hundred or other precinct within this realme of England or Wales shall may at all times hereafter haue like libertie to take seise enioy all such forf of lands tenements goods and cattels as shall come or grow within their liberties by force of the attainder of any person or persons for vpon any offence and offences made treason by this act as they or any of them should ought or might by vertue of any good and lawfull grant to them or any of them heretofore had or made Prouided alwayes No corruptiō of blood or forf of dower and be it enacted That this act nor any attainder or attainders of any person or persons for any offence or offences made treason by this act shall extend or be expounded to make any corruption of blood to any the heire or heirs of any such offendor or offendors or to make the wife of any such offendor to lose or forf her dower of or in any lands tenements or hereditaments or her title action or interest in the same Any thing in this act contained or attainder c. notwithstanding Tryall of a Peere If any of the Lords of the Parliament or Péere of the realme shal be indicted of any offence made treason by this act then they shall haue their triall by their Péeres as heretofore hath béene vsed in cases of High Treason By a stat made An. 3. H. 5. it was ordained That clipping St. 3. H. 5. 6 washing or filing of the money of the land shold be adiudged treason but that stat was repealed by the before rehearsed stat of An. 1. M. as is aforesaid 13 For that diuers euill disposed persons knowing that the said act of an 5. El. 11. being penall ought to be expounded strictly according to the words therof the like offences not by any equitie to receiue the like punishment did sithence the making of the said stat practise for gaines sake other vndue means to falsifie impaire diminish and lighten as wel the proper mony of this realm as also of other realms Diminishing scaling or lightning of money allowed to be currant within this realm and the dominions thereof by the Qu. proclamation to the great losse and deceit of the Q. and her subiects for the redresse whereof by a Statute made Anno 18. St. 18. El. 1. Eliz. it was established That if any person or persons shall for wicked lucre or gaines sake by any act waies or means whatsoeuer impaire diminish falsifie scale or lighten the proper monies or coynes of this Realme or any the Dominions thereof or the monies or coines of any other Realmes allowed and suffered to bée currant at the time of the offence committed within this Realme of England or any the Dominions of the same by the proclamation of the Qu. her heires or successors it shall be taken déemed and adiudged to be Treason and the offendors therein their counsellors consentors and aydors shall bee likewise déemed and adiudged as offendors in treason and being thereof lawfully conuict or attainted according to the due course of the laws of this realm shall suffer death lose and forf all their goods and cattels to the Quéene her heires and successors and shall lose and forfeit to the Quéene her heires and successors all their lands tenements and hereditaments during his or their naturall life or liues onely Prouided alwayes that this Act No corruptiō of blood nor forf of dower nor any attainder or attainders for any offence or offences made treason by this Act shall in any wise extend or be iudged or expounded to make any corruption of blood to any the heire or heires of such offendor or offendors or to make the wise of any such offendor to lose or forfeit the dower of or in any lands tenements or hereditaments or her title action or interest to the same Any thing in this Act contained or any attainder hereafter to be had c. notwithstanding If any Lord of the Parliament or Péere of this Realme Tryall of a Peere shal
of England for the time beeing and offer to trauerse the said indictment or Appel whereupon the said Outlawrie shal be pronounced then he shal be receiued to the said trauerse being thereupon found not guiltie by verdict of xij men he shal be cleerely discharged of the said Outlawrie and of all penalties and forfeitures by reason of the same as though no such Outlawrie had bin made And it is to be noted h. 12. El. Dyer 287. that the foresaid two Statutes doe extend to offendors in any manner of Treasons by the Common law or Statute and not to those onely which were declared to be Treasons by the Statute of 25. Edw. 3. 32 For the spéedie triall and punishment of such persons as shall commit any manner of Treasons within the Principalitie of Wales and the Marches of the same or elsewhere within the Kings dominions where his originall Writs in the Chauncerie of England commonly runne not by a Statute made Anno 32. H. 8. it was enacted That all such Treasons and Misprisions of Treasons as is aforesaid Triall of treasons committed in wales shall be presented St. 32. H. 8. 4. and tried by the oathes of twelue men inhabiting within any such Shires and before such commissioners as the King from time to time in such cases shall assigne and appoint by his Commission or Commissions of Oyer Determiner in like manner forme as if such Treasons or misprisions of treasons had bin done and committed within such of the said Shires into the which the said Commissions of Oyer and Determiner shall bée directed as is aforesaid And all Presentments Trials Processes Iudgements Executions and forfeitures hereafter to be had made or done by vertue of such Commissions shal be good and effectuall in the law to all purposes Any graunt custome or vsage to the cōtrarie notwithstanding c. After that by the Statute made an̄ 1. 2. P. M. it was enacted That all trials hereafter to be had St. 1. 2. P. M. 10. awarded or made for any Treason shal be had and vsed onely according to the due Order and Course of the common law of this Realme not otherwise Quaere whether this Statute of 1. 2. P. M. doth repell or take away the force of the before rehearsed Statute of 32. H. 8. St. 33. H. 8. 20. 33 By a statute made an̄ 33. H. 8. it was established The force of attainder of treason by the common law That if any person or persons shal be attainted of high Treason by the course of the common laws or statutes of this Realme in euery such case euery such attainder by the cōmon law shal be of as good strēgth value force effect as if it had bin done by authoritie of Parliament And the king his heires and successors shall haue as much aduantage by such attainder as well of vses rights entries conditions and possessions reuersions remainders and all other things as if it had béene done and declared by authoritie of Parliament and shal be deemed and adiudged in actuall and reall possession of the lands tenements hereditaments vses goods chattels and all other things of the offendors so attainted which his Highnesse ought lawfully to haue and which they so béeing attainted ought or might lawfully loose and forfeit if the attainder had béene done by the authoritie of Parliament without any office or inquisition to be found of the same Any Law Statute c. notwithstanding Sauing to all and euery perfect and persons and bodies politique and their heires assignes and successors and euery of them other than such person and persons which shall be attainted of high Treason and their heires and assignes and euery of them and all and euery other person and persons claiming by them or any of them or to the vses of any of them after the said Treasons committed all such right title vse possession entrie reuersions remainders interests conditions fees offices rents annuities commons leases and all other commodities profits and hereditaments whatsoeuer they or any of them should might or ought to haue had if this Act had neuer bin made 34 Because through corruption or negligent kéeping the Records of attainders of Treasons happen to be many times impaired blemished or otherwise to be defectiue St. 29. El. 2. therefore by a Statute made an̄ 29. El. it was ordained That no Record of attainder that now is of any person or persons No record of attainder shall be reuersed when the offendor is executed of or for any high Treason where the partie so attainted is or hath béene executed for the same Treason shall by the heire or heires of any such person or by any other whatsoeuer clayming in by from or vnder any such heire or heirs be in any wise hereafter reuersed vndone auoyded or impeached by any plea or for any error whatsoeuer But this Act shall not extend to any Record of attainder of or for any treason vpon which any writ of Error is now depending or which Record is already reuersed repealed or vndone by or for any error matter plea or cause whatsoeuer but the same shall be and remaine as vnto and against that partie at whose suit the same writ of Error is depending or at whose pursuit the same Record hath bin reuersed repealed or vndone his their heires and assignes onely as if this Act had neuer beene had or made Any thing in this Act c. M. 33. H. 8. Dyer 50. 35 If an offence be murder or other felonie by the common lawe Felony made treason by Statute and after the same offence shal be made treason by a Statute Then it is not punishable as murder and felonie but as Treason And no appeale will lie thereof and the Kings pardon of all Treasons will discharge the offendor therein An English traitor subiect to another prince 36 If an English man borne beeing indicted of high Treason P. 13. El. Dyer 300. will vpon his arraignment plead that he will not answer to the said indictment for that he is a subiect and seruant to a forraine Prince and not subiect to the King of England in this case the Court will record a Nihil dicit and he shall haue such iudgement as is vsed in cases of Attainder of Treason An alien borne committeth treason 37 If an alien borne doe commit high Treason in England in the time of peace betwéen England and that Nation where the same alien was borne P. 3. 4. P. M. Dyer 140. H. 33. H. 6. 1 he shal be indicted and arraigned of high treason and shall haue iudgement according to his desert But if it were in the time of warre betwéene England and that nation where the said alien was borne then the alien shall be ransomed and not arraigned Ioyning the kings armes with his owne 38 An Earle of this Realme was attainted of high treason
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
the rauishment of women Rauishment of a woman therefore by the stat of West 2. St. 13. E. 1. 33 it was enacted That if any man from henceforth rauish any woman maried maid or other woman where she doth not consent neither before nor after he shall haue iudgement of life of member and likewise where a man rauisheth a woman married lady damsell or other with force although she consent afterward he shal haue such iudgement as before is said if he be attainted at the K. suit for the K. shall haue the suit Abusing a woman vnder x. yeres of age 3 By a stat made An. 18. El. it was ordained St. 18. El. 6 That if any person shall vnlawfully carnally know abuse any woman child vnder the age of x. yeares euery such vnlawfull carnall knowledge shal be felony the offendor thereof being duly conuicted shall suffer as a felon without allowance of clergy The forf for consenting to a rape 4 By a statute made An. 6. R. 2. 6. it was ordained St. 6. R. 2. 6. That wheresoeuer and whensoeuer ladies daughters and other women be rauished and after such rape do consent to such rauishers that as wel the rauishers as they that be rauished euery of them be froÌ„ henceforth disabled by the same déed vnabled to haue or challenge heritage dower or ioint feoffemeÌ„t after the death of their husbands and auncestors and that incontinently in this case the next of the blood of those rauishers or of them that be rauished to whom such heritage dower or ioint feoffemeÌ„t ought to reuert remaine or fall after the death of the rauisher or of her that is so rauished shall haue title incontinently that is to say after the rape to enter vpon the rauisher or her that is rauished and their assignes and land tenants in the same heritage dower or ioynt feoffement and the same to hold in a state of heritage and that the husbands of such women if they haue husbands or if they haue no husbands in life that then the fathers or other next of their bloud haue from henceforth the suit to pursue and may sue against the same offendors and rauishors in this behalfe And to haue them thereof conuict of life and of member although the same women after such rape do consent to the said rauishers And further it is accorded that the def in this case shall not be receiued to wage battell but that the truth of the matter be thereof tried by inquisition of the countrey sauing alwayes to our soueraign lord the K. and to other lords of the said realme al their escheats of the said rauishers if peraduenture they be thereof conuict A woman rauished conâ—eiued with child By the opinion of Britton Britton if a woman at the time of the supposed rape doe conceiue with child by the rauisher this is no rape because a woman cannot conceiue with child if she doe not consent It is a good plea in an appeale of Rape to say that before the rauishment supposed Bracton he kept and vsed the plaintife as a Concubine Or to plead A Concubine that though he lay with her yet he did not carnally know her for that is the force of the declaration in an appeale of Rape T. 9. E. 4. 26 If a man shal be charged with a Rape by the way of indictmeÌ„t or otherwise he ought to be charged expressely by this word Rapuit and not by any other words This word Rapuit necessary in an indictment notwithstanding they doe amount to as much as this word Rapuit doth as carnaliter cognouit or such like S. Appeales 81. 85. St. 3. H. 7. 2 5 By a statute made Anno 3. H. 7. it is ordained Taking a woman against her will That if any person or persons shall take any maid widdow or wife which hath any lands or goods or is heire apparant to her auncestor against her will vnlawfully such taking procuring and abbetting to the same and also receiuing wittingly the same woman so taken against her will and knowing the same shal be felony and such misdoers takers and procurers to the same and receiuers knowing the offence in forme aforesaid shal be reputed and iudged as principal felons But this act doth not extend to any person taking any woman onely clayming her as his ward or bondwoman St. 39. El. 9. And by a statute made An. 39. El. it was enacted That all and euery such person persons as shall be conuicted or attainted for any offence made felony by the said act of 3. H. 7. or which shal be indicted or arraigned of or for any such offence and stand mute or make no direct answer or challenge peremptorily aboue the number of twenty shal in euery such case loose his and their benefit of clergy No Clergy allowed and shall suffer paines of death without clergy any former law c. notwithstanding Prouided alwaies That this act shall not extend to take away the benefit of Clergy but onely from such person and persons as hereafter shal be principals or procurers or accessaries before such offence committed St. 8. El. 3. 6 By a statute made AnnÌ„ 8. El. it was enacted Transporting of shéepe That no person or persons shall bring deliuer send receiue or take or procure to bee brought deliuered sent or receiued into any shippe or bottome any Rammes Shéepe or Lambes or any other kind of Sheepe being aliue to be conueyed out of any of the Quéenes dominions vpon paine that euery such person his aidors abbettors procurors and comforters shall for his first offence forfeit all his goods for euer to the Quéene and Informer that will sue for them in any Court of Record wherein no W. E. P. c. And further euery such offendor shall suffer imprisonment one whole yeare without baile or mainprise and at the yeares end shall in some market Towne in the fulnesse of the Market on the Market day haue his left hand cut off and that to be nailed vpon the openest place of such Market The second offence felony And euery person eftsoones offending against this statute shal be iudged a felon and shal suffer death as in cases of felony But this act shall not extend to any corruption of blood or be preiudiciall to any women claiming dower by or from any such offendor And the Iustices of Oyer Determiner Iust of Gaole deliuery and I. of P. in euery Countie and Shire within this Realme of England and Wales and other the Qu. Dominions shall haue full power and authoritie by vertue of this Act to enquire of euery offendor and offendors contrary to the forme and effect of this act and to heare and determine euery offence and offences committed done contrary to the forme and effect of the same according to the course of the laws of this Realme 7 For as much as
diuers euill disposed persons being married did run out of one countrey into another or into places where they were not knowne and there became to be maried hauing another husband or wife liuing to the great dishonor of God vtter vndoing of diuers honest mens children and others therfore by a stat made anÌ„ 1. Felony in marying vntill the former husband or wife be dead Iac. it was enacted St. 1. Iac. 11 That if any person or persons within his Ma. dominioÌ„s of England Wales being maried or which hereafter shall marry do marry any person or persons the former husband or wife being aliue that then euery such offence shal be felony and the party parties so offending shall receiue such the like procéeding triall and execution in such county where such person or persons shal be apprehended as if the offence had bin committed in such county where such person or persons shal be takeÌ„ or apprehended Prouided alwaies that this act shall not extend to any person or persons whose husband or wife shal be continually remaining beyond the seas by the space of 7. yéeres together or whose husband or wife shall absent him or her selfe the one from the other by the space of 7. yeares together in any parts within his Ma. Dominions the one of theÌ„ not knowing the other to be liuing within that time Prouided also that this act shall not extend to any person or persons that are or shal be at the time of such mariage diuorced by any sentence had or hereafter to be had in the Ecclesiasticall Court or to any person or persons where the former mariage hath bin or hereafter shal be by sentence in the Ecclesiasticall court declared to be void and of no effect Nor to any person or persons for or by reason of any former mariage had or made or hereafter to be had or made within age of consent No corruptioÌ„ of blood or disheritance Prouided also that no attainder for this offence made felony by this act shall make or worke any corruption of blood losse of dower or disinherison of heire or heires Infected with the plague 8 By the stat made anÌ„ 1. Iac. it was ordained St. 1. Iac. 31 That if any person or persons infected with the plague shal be by the Maior Bailifes Constables or other head officers of any City Borough Town corporat priuiledged place or Market Towne or by any I. of Peace Constable Headborough or other officer of the county if any such infection be out of any City Borough Towne corporate priuiledged place or market towne commaunded or appointed to kéepe his or their house for auoiding of further infection shall notwithstanding contrary to such commandement wilfully contemptuously goe abroad shall conuerse in company hauing any infectious sore vpon him vncured then such person persons shal be taken adiudged a felon and suffer death as in case of Felony But if such person shall not haue such sore found about him theÌ„ for his said offence to be punished as a vagabond should or ought to be by the stat made 39. El. 4. for the punishment of vagabonds and further to be bound to his or their good behauior for one yéere but no attainder of felony by vertue of this act shal extend to any attainder or corruption of blood No corruptioÌ„ of blood or forfeiture or forf of any goods chattels lands tenements or hereditaments St. 35. El. 1 St. 2. Iac. 25 9 By the stat made AnÌ„ 35. El. it was ordained That if any such offendor Abiuration by a Recusant which by the tenor effect of the said act intituled an act to retaine the Quéens subiects in due obedience is to be abiured shal refuse to make such abiuration as by the said stat is appointed Or after such abiuration shall not goe to such hauen and within such time as is appointed and from thence depart forth of the realme according to the said statute Or after his departure shall returne and come againe into any of the Q. Realmes or Dominions without her speciall licence in that behalfe first had and obtained Then in euery such case the person so offending shall be adiudged a felon suffer as in case of felony without benefit of clergy Prouided that the wife of such offendor by force of this act shal not loose her dower nor that any corruption of blood shal grow or be by reason of any offence mentioned in this act But the heire of such offendor by force of this act shall and may after the death of euery such offendor haue and enioy the lands tenements and hereditaments of such offendor as if this act had not bin made Prouided that no Popish Recusant or feme couert shall be bound to abiure by vertue of this act St. 35. El. 2. 10 By a stat made an 35. El. it was enacted That any such offendor Abiuration of a Recusant which by the tenor intent of the act made to restrain Popiâ—h Recusants to some certaine place or abode is to be abiured shal refuse to make such abiuration or after such abiuration made shal not go to such hauen and wiâ—hâ—n such time as is appointed and from thence depart out of the realme according to this act Or after such his departure shall returne or come againe into any of her maiesties realmes or dominions without her maiesties speciall licence in that behalfe first had and obtained then in euery such case the person so offâ—nding shall be adiudged a felon and shall suffer and loose as in case of felony without benefit of Clergy St. 25. H. 8 6 St. 5. Eli. 17. 11 By a stat ordained anÌ„ 25. H. 8. and made perpetuall an 5. El. it was enacted That the detestable abominable vice of Buggery Buggery committed with mankind or beast shal be adiudged felony and such order forme of proceâ— therein shal be vsed against the offendors as in cases of felony at the common law And the offendors being thereof conuict by verdict confession or â—â—iclary shal suffer such pains of death losses penaltâ—es of goods catteâ—s debts lands tenemeÌ„ts and hereditaments as felons be accustomed to do according to the order of the common law of this Realme And no person offending in such offence No clergy shall be admitted to his Clergy And I. of Peace shall haue authority within the limits of their iurisdiction and commission to heare and determine the same as they haue in cases of other felonies St. 21. H. 8. 7 St. 5. El. 10. 12 By a statute prouided An. 21. H. 8. and made perpetuall AnÌ„ 5. Seruants imbesiling their masters goods El. it was established That all and singular seruants to whom any caskets iewels money goods or cattels by his or their master or mistresse shall be deliuered to kéepe if any such seruant or seruants withdraw him or them from their
to the next Sessions for the Peace and Gaole deliuerie next ensuing after the sayd yeare And if any such person retained depart within the yeare Departing without licēce without the licence of him that so retained him then to be indicted tried and iudged as a felon and not to haue the benefit of his Clergie 33 By a Statute made Anno 31. Elizab. St. 31. El. 4. it was established Imbeciling the K. Armor c. That if any person or persons hauing at any time hereafter the charge or custodie of any Armour Ordnance Munition Shot Powder or Habiliments of Warre of the Quéenes her heires or successors or of a Victuals prouided for the victualing of any Souldiers Gunners Mariners or Pioners shall for any lucre or gaine or wittingly aduisedly and of purpose to hinder or impeach her Maiesties seruice imbecile purloyne or conuey away any the same Armour Ordnance Munition Shot or Powder Habiliments of Warre or Victuals to the value of twentie shillings at one or seuerall times then euerie such offence shall bée adiudged Felonie and the offendor and offendors therein to be tried procéeded on and suffer as in case of Felonie The suit within a yere after the offence But none shall bée impeached for any offence against this Statute vnlesse the same impeachment bée prosecuted or begun within a yeare next after the offence done And this Act nor any attainder or attainders of any person or persons for any offence made felonie by this Act shall in any wise extend or bée interpreted to make the offendor or offendors to forfeit any lands tenements or hereditaments any longer than during his or their life or liues or to make any corruption of blood to any the heire or heires of any such offendor or offendors No corruptiō of blood or forf of dower or to make the wife of any such offendor to loose or forfeit her dower or title of dower of or in any lands tenements or hereditaments or her action or interest to the same Proofe in discharge of the offendor any thing in this Act c. notwithstanding And such person or persons as shall be impeached for any offence made felonie by this Statute shall by vertue of this Act bee receiued and admitted to make any lawfull proofe that hée can by lawfull witnesse or otherwise for his discharge and defence in that behalfe any law c. notwithstanding Cutting downe of Powdike 34 By a Statute made Anno 22. H. 8. and reuiued Anno 2. 3. St. 22. H. 8. Ph. Mar. it was ordained That euerie peruerse and malitious cutting downe and breaking vp of any part or parts of the dike called new Powdike in Marshland in the Countie of Norffolke and the broken dike otherwise called Oldfield dike by Marshland in the isle of Ely in the Countie of Cambridge or of any other banke béeing parcell of the Rinde and vttermost part of the causey of Marshland aforesaid made for the defence and saluation of the sayd countrey of Marshland at euerie time and times from henceforth committed and done otherwise than in working of the sayd bankes or dykes for the fortifying repayring and amending of the same shall bee taken reputed and adiudged Felonie And the offendors and doers of the same and euerie of them shall bée adiudged and reputed felons And the Iustices of Peace of the sayd Counties of Norffolke and Cambridge within the sayd isle at euerie of their Sessions within the same isle and Counties to be kept shall haue power to cause inquirie to bée made of euerie such offence so at any time in forme aforesayd hereafter to bée done and committed and to award like Proces against euerie of the sayd offendors with like iudgement and execution of the same if they or any of them bée found guiltie by verdict or otherwise as the sayd Iustices haue vsed to do vpon other felonies being felonie by the common law Taking the othe for the Kings title 35 By a Statute made Anno 3. Iac. 4. it was enacted St. 3. Iac. 4. That euerie subiect of this Realme that after the tenth day of Iune next comming shall goe or passe out of this Realme to serue any forreine Prince State or Potentate or shall after the sayd tenth day of Iune passe ouer the Seas and there shall voluntarily serue any such forreine Prince State or Potentate not hauing before his or their going or passing taken the othe viz. That our Soueraigne Lord King Iames is lawfull and rightfull King of this Realme c. before the officer thereunto appointed shall be a felon And if any Gentleman or person of high degrée or any person or persons which hath borne or shall beare any office or place of Captaine Lieutenant or any other place charge or office in Campe Armie or Companie of Souldiers or Conductor of Souldiers shall after go or passe voluntarily out of this Realme to serue any such forrein Prince State or Potentat before that he and they shal become bound with two such suerties as shall be allowed of by the officers by this Act limited to take the said bond vnto the K. his heires or successors in the summe of xx.l. of currant English money at the least bound not to be reconciled nor to make conspiracie with condition to the effect following he shall be a felon viz. That if the within bounden c. shal not at any time thē after be recōciled to the pope or sea of Rome nor shal enter into or consent vnto any practise plot or conspiracie whatsoeuer against the Kings Maiestie his heires and successors or any of his or their estate and estates realms and dominions but shall within cōuenient time after knowledge therof had reueale disclose to the K. Maiestie his heires and successors or some of the Lords of his or their priuie Counsell all such practises plots and conspiracies then the said Obligation to be void St. 43. El. 13 36 By the stat made Anno 43. El. it was ordained Forcible carrying any person out of Cumberland c. That whosoeuer shall at any time hereafter without lawfull authoritie take away any of the K. subiects against his or their will or wils and carrie them out of the counties of Cumberland Northumberland Westmerland and the Bishopricke of Durham or to any other place within any of the said Counties or detaine force or imprison him or them as prisoners or against his or their wills to ransome them or to make a prey or spoyle of his or their person or goods vpon deadly fewd or otherwise Or whosoeuer shal be priuie consenting aiding or assisting to any such taking detaining or carrying away of any such person or persons as aforesaid Or whosoeuer shall take receiue or carrie to the vse of himselfe or wittingly to the vse of any other any money corne cattell or other consideration commonly called Blacke mayle for the protecting or defending of him or
partie most interessed or grieued by the same murder or felonie is to prosecute sute against the saide offendor by Appeale and thereby to séeke reuenge against him for the wrong done to himselfe or his auncestor or else the offendor is to be indited at the Kings sute whose peace hée hath broken and whose lawe he hath offended and who hath a speciall interest in all manner of treasons and felonies to punish them to wéede them out of his kingdomes and dominions and to defend his subiects from them And therefore I am to expresse in this Chapter and the next what an Appeale of felonie is and what an Indictment is by whom for whom and against whom and in what cases they are to be begunne prosecuted and maintained what defences or pleas are to be made or pleaded by the supposed offendors vnto them and what counterpleas may be obiected against the same plees Appeale of death An Appeale is a plaint of one person made against another with an intent to attaint him of felonie by a course of Lawe prouided therefore which appeale may be brought against a woman couert without her husband against an infant and all others that can commit felonie and a woman may haue an appeale for the death of her husband Appeale by a woman of the death of her husband because the husband and wife be one flesh but of the death of none other by force of the Statute of Magna Charta which hath ordained That none shall be taken St. 9. H. 3.34 or imprisoned by the appeale of any woman for the death of any other than of her husband And therefore if a woman doe bring an appeale of the death of her father and the Defendant would admit it yet the Court will abate it 10. Ed. 4.7 Plow Com. fol. 85. because it is contrary to the said Statute Appellāt conueieth his title by a woman 2 As a woman shall haue no Appeale of the death of any other but of her husband No more shall any cosin of him that was slaine who maketh his conueiance in kinred by a woman haue any appeale of the death of him that is killed notwithstanding he be issue male and not female Appellant conueyeth his title by a woman and notwithstanding that the woman by whom he maketh his conueiance died in the life time of him 20. H. 6.46 Fi. Cor. 385 17. Ed. 4.1 of whose death the appeale is commenced As if a man haue issue one onely daughter who marrieth a husband hath issue a sonne and dieth and after the father of that woman is slaine In this case the sonne of the woman shall not haue an appeale of the death of his saide grandfather though hee be his next heire at the common lawe and inheritable to his land because his mother was foreclosed of it by the foresaid statute of Magna Charta and so likewise he which hath none other title thereunto but that which he deriueth from his saide mother Fi. Cor. 384 17. Ed. 4.1 But if he that was slaine haue none heire on the fathers side then the vncle or next of kinne on the mothers side shall haue the appeale yea though he doe conuey his title thereunto by a woman 3 By the auntient lawe of this Realme a woman could not haue an appeale of the death of her husband vnlesse her said husband were slaine betwéene her armes within the yéere and day before Neither could shée or any other haue an appeale vnlesse she or he were present at the death of the partie slaine and sée it But that Lawe was altered by the Statute of Gloucester St. 6. Ed. 1.9 whereby it was ordained That no Appeale shall be abated so soone as they haue béene heeretofore But if the appellant in an appeale doe declare the déede the yeare the day the houre The declaration in appeale of murder the time of the King and the Towne where the déede was done and with what weapon hée was slaine the appeale shall stand in effect And the appeale shall not be abated for default of fresh sute where a man doth sue within the yeare and the day after the déede done 50. Ed. 3.15 28. Ed. 3.91 27. Ass p. 3. 4 If a woman will haue an appeale of the death of her husband The woman must be the deads lawfull wife it is requisite that shée be not onely his wife indéede viz. de facto but also lawfully and in right viz. de iure for neuer accoupled in lawfull marriage is a good plea to barre her of her appeale And it shall be tried by the Bishop whether she be his lawfull wife or not 20. H. 6.46 12. El. Dyer 296. 5 It is requisite that a woman who will maintaine an appeale of the death of her husband shall liue sole and vnmarried The woman must liue vnmarried for by her second marriage her appeale is extinct though her second husband doe die within a yeare and day after the death of her first husband And if a woman doe bring an appeale of the death of her husband and hanging the Writ shée doth marry another husband her appeale shall abate for euer 11. H. 4.46 6 If a woman doe bring an appeale of the death of her husband A woman marrieth betweene iudgemēt executiō and doe pursue the Defendant vntill Iudgement And then after iudgement and before execution shée marrieth an other husband In this case shée shall not obtaine execution viz. the Defendant shall not be hanged at her sute for shée hath willingly lost the name of her first husband before shée hath obtained the effect of her sute and the reuenge which shée brought her appeale for Where appeale lieth but no dower 7 There be some Cases where a woman shall haue an appeale of the death of her husband though she be not endowable of the possession of the same husband As where her husband is attainted of treason 27. As p. 41 35. H. 6.58 and after one doth kill him his wife shall haue an appeale and yet she shall haue no dower And in like sort if a woman doe elope from her husband and after one doth kill him she may maintaine an appeale against the offendour but no writ of dower against his heire And many other Cases there be where a man was so seised of his lands that his wife is not thereof endowable by the Lawe And yet if hee be slaine she may maintaine an appeale against the manqueller Where the wife may haue appeale none other shall 8 Where a woman may haue an appeale of the death of her husband 20. H. 6.47 Kel fol. 120 none other shall haue it during her life nor after her death though the wife doe die within the yeare and day after the death of her husband and before the appeale commenced for that the appeale was once out of the blood it shall not be restored to his
blood againe If the husband be killed by his wife The husband killed by his wife his sonne shall haue an appeale 33. H 8. Dyer 50 18. Ed. 4.1 And yet if in that case the King doe pardon the wife all treasons the sonne shall be barred of his appeale Appeale of death by the heire 9 If he that was slaine had no wife liuing at the time he was killed then his next heire by the common Lawe if he be male shall haue the appeale But if hée which bringeth the appeale be the next heire male to him that was slaine yet if there be another liuing which is his heire by the common Lawe though not his heire male his appeale shall abate As if he that was slaine had issue a daughter and no sonne 27. As p. 25. Fi. Cor. 384 his brother cannot maintaine an appeale against the offendor though hée be his next heire male because he is not next heire by the common Lawe to him that was slaine but his daughter is And by the same reason a Bastard nor the youngest sonne which doth inherite lands in Borough English A Bastard Heire in Borough English shall not maintaine an appeale because neither of them is heire by the common Lawe It was a custome in olde time if one were found guiltie in an appeale of murder that his wife The maner of a murderers death and all the nearest of his kinne which was murdered 11. H. 4.11 Plo. com 306 should drawe the felon who committed the murder by a long rope to the place of execution An appeale dieth with the Appellant or by his non-suite c. 10 This appeale of the death of the auncester is so tied and affixed to the next heire male at the Common Lawe of him that was slaine that if it be once attached by him although that hée die hanging the suite or be non-suite therein or doe discontinue the suite and that within the yéere 38. H. 6.13 9. H. 7.5 16. H. 7.15 yet the appeale is extinct for euer because it is but a personall action and not auncestrell for he that was slaine could not haue maintained it and therefore being but personall it doth die with the person of the appellant But it is otherwise if the appeale were not attached by the heire during his life 11. H. 4.11 â—0 H. 6.46 but that hée died before hée brought his appeale or died in the life of his auncester that was killed In that case hée which is next heire male liuing shall haue the appeale 9. H. 7.5 Stamf. fo 59 11 If the eldest sonne before the appeale commenced and within the the yeare doth release the appeale and then dieth The heire doth release and die the second sonne and euery other which claimeth as heire to the partie slaine shall bée barred thereby 16. H. 7.15 38. H. 6.13 12 If the eldest sonne doe bring an appeale and hath iudgement Recouery and death before execution and before execution of the offendor dieth his heire shall not haue execution for if he should he is to haue it as heire to him that recouered and not as heire to the partie slaine which cannot be for hée that demaundeth reuenge of his auncestors death must make himselfe immediate heire to the same auncestor which was slaine or otherwise his sute shall not be allowed which the heire of the eldest sonne in this case cannot doe 13 If the eldest sonne after the title of appeale accrued vnto him The eldest sonne disabling himselfe or during the life of his auncester that was slaine doe disable himselfe by attainder of felonie or by being a Monke a Priest or mayhemed by the Defendant Fitz. Cor. 235.322 or by any other cause So that by such disabilitie hee cannot haue an appeale yet the second sonne shall not haue it 14 If the eldest sonne doth kill his father or his mother Killing father mother brother or wife the second sonne shall haue an appeale against him Fi. Cor. 459. And if there be thrée brethren and the middlemost killeth the elder brother the youngest brother shall haue an appeale against him And yet in the foresaide cases hée that bringeth the appeale 18. Ed. 4.1 33. H. 8. Dyer 50. is not heire to him that is slaine And if the husband doe kill his wife his sonne shall haue an appeale against him 1. H. 4.6 Littl. vill 15 If the Lord doe kill his Villaine the heire of him that was slaine The Lord killeth his villaine may haue an appeale against his Lord notwithstanding that the Plaintifs in the appeale is villaine to the Defendant for the villaines heire doth not sue for the recouerie of lands goods or liberty from the Lord but onely for a lawfull reuenge of his auncesters death And if the villaines heire should not haue an appeale in this case the said offence should remaine vnpunished by appeale for none other may pursue it 41. As p. 14. 45. Ed. 3.25 27. Ed. 3.83 Kel fol. 120 32. As p. 8. 16 An Infant An Infant within the age of twenty and one yeares may haue an appeale of the death of his auncester and in like sort hée may haue any maner of appeale But notwithstanding the plea shall remaine to be tried vntill he come to his full age of one and twentie yeares for that in this case the Defendant cannot wage battell against him Attamen quaere A man of 70. yeares of age 17 A man of the age of thrée score and tenne yeares may haue an appeale of the death of his auncestour Fi. Cor. 385 and in like sort may haue any manner of appeale and yet being of that age hée shall put the Defendant from waging of battell with him Disabilities to bring an appeale 18 If the Plaintife which ought to sue the Appeale be attainted of treason or felonie or a Monke or a Priest or mayhemed by the Defendant Fi. Cor. 32â— he shall not haue an appeale Disabilities in the appellant 19 A man that is not of perfect memorie or that is deafe and dumbe Britton or a Lazar or a foole naturall shall not haue an appeale of death nor any other appeale For battell cannot be waged against any of them euery of them being vnperfect to performe the same Pleading that the appellant hath an elder brother 20 If one brother doe bring an appeale of the death of his auncestor 7. Ed. 4. 15 it is no plea for the appellée to say that the said auncestor at the time of his death and after the Writ purchased had an elder brother named B. to whom the appeale is giuen and not to him that is plaintife for it may be that the same B. was his brother of the halfe bloud And therefore the surest way is to begin his plea with the father of him that was slaine as to say that such a man tooke to
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
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
hath possession sueth a Writ of Forcible Entry 21 Forcible entry of a Rent or Common 22 Forcible entry to the vse of another Forcible detaining by words onely 23 Iointenants or Tenants in common expelling each other by force 24 Who may bring a Writ of Entry vpon the Statute of 5. Richard 2. 25 Turning a water-course by force 26 The plea of not guiltie in Forcible entry The finding of the speciall matter doth charge or discharge the defendant of force Presentment of Forcible entry 27 One action for entring and detaining with force 28 A writ vpon the Statute of North-hampton 29 What shal be said to be force Force by number of seruants Force by number of weapons 30 Who may make a Forcible entry 31 What force is lawfull to the persons of men 32 Where the house of a man may be broken by force where not 33 A particular person may defend himselfe and his by force 34 The Writ of Vi laica remouenda 35 Where force shal be remoued for the K. Incumbent where not Forgerie Fol. 43. 1 Forgerie Periurie and Maintenance doe tend to the breach of the Peace 2 The enormitie of Forgerie A repeale of former Statutes of Forgerie 3 Forging of deeds whereby anothers landes shall bee troubled 4 Forging a deed whereby a lease or annuity may be claimed 5 Seuerall remedies against a forger 6 A forger not twice punished for one offence 7 The plaintifes release of forgerie shall only discharge his own remedy 8 The punishment for the second offence of forgery 9 The Iustices of Assise shall heare and determine forgery 10 Forging of deedes before the statute of 5. El. Pleading of a forged deed made before the said statute 11 Persons not chargeable of forgerie by the said stat of 5. El. 12 Forging of a customarie booke 13 The proces to leuie costes and damages of a forger 14 The kings pardon of forgerie 15 Forging of a Testament 16 Inserting more in a wil then is directed 17 Pleas in barre of forgerie 18 Where one shall haue an action of Forgery though he hath but a right to the land 19 Where no title to land lease c. no action of forgery 20 Forging of a deed touching iointenants lands 21 One sealeth a deed by anothers commaundement 22 One forgeth a deed and another doth publish it 23 Forgery by antedating of a deed 24 Getting of other mens goods by forged letters or tokens 25 Suspected persons of that kind of forgerie called before the Iustices 26 Forging of a Testimoniall Periurie Subornation Fol. 48. 1 Truth is to be tried by the oathes of men The credit of an oath 2 What sorts of persons are to be deposed and what not 3 All the parties to the execution of iustice sworne Causes of suspition in Sherifes in impanelling of Iurors 4 Euery Iuror ought to be an honest and lawfull man Challenges of Iurors suspected 5 A witnesse cannot be a Iuror 6 Periury suspected by deliuery of his verdict before hand 7 Periury suspected by lying at the charge of one of the parties 8 Periury suspected by beeing an arbitrator in the cause in question 9 Periury suspected by combination 10 Periury suspected if one of the parties and a Iuror bee in suit of law 11 Periury suspected for that the Iuror passed against him before 12 Periurie suspected in respect of subiection or gouernement 13 Periurie suspected in respect of alliance kinred or profit One godfather to the others child 14 Periury suspected in respect of ignorance of the cause Want of Hundredors Want of the View 15 Periurie suspected in respect of the pouertie of the Iurors 16 The iudgement in an Attaint at the common law against a Iury proued periured 17 The iudgement in an Attaint in London An Attaint where the thing in question amounteth to 40. poūds and where not 18 The meaning to commit Periurie punished Decies tantum Embraceors 19 The punishment of Periurie committed by an Enquest in Wales 20 Periury committed by witnesses A witnesse vpon proces serued shall appeare 21 The penalty for procuring of vnlawfull Periury 22 The penalty for committing of wilfull Periury 23 In what Courts Periurie shal be punished 24 Proclamation of the statute of Periury 25 Periury punished in the spirituall Court 26 Periurie punished in the Starre-chamber 27 Periurie punished in Bankrupts Periury committed by witnesses for Bankrupts 28 Periury committed vpon an indictment of Riot Periury vpon an indictment of Felony 29 Periury in prouing a Suggestion for a prohibition 30 A suit vpon Periury in the Chauncerie 31 Where Periury shall be punished in the temporall court and where in the spirituall Maintenance Champertie Embracerie and buying of Titles Fol. 56. 1 What Maintenance is and the enormitie thereof 2 Maintenance by men of authority 3 Maintenance by combination Maintenance by Noblemens officers 4 Maintenance by champerty Who be champertors Pleaders may giue counsell for their fees The punishmēt of champertors 5 What is Champerty and what not 6 Maintenance by Embracery Maintenance by Iurors The penalty of maintenance in Iurors and Embraceors 7 Maintenance punished by the writ of Decies tantum 8 Maintenance by Ambidexter 9 Maintenance of suits in law and the penalties thereof 10 Maintenance by buying of pretenced Titles 11 What is selling of a pretenced Title What is a pretenced Title 12 Maintenance by giuing of liueries and retaining of seruants or officers 13 The publishing inquiring of and punishment of Maintenance 14 Why the pursuing of maintenance is left out of the statute of 18. Eliz. 15 Assurances to haue maintenance void Lands gotten by force assured to haue maintenance 16 What maintenance is punishable and what iustifiable 17 It is no maintenance in a Iuror for giuing of his verdict Maintenance in a Iuror by suing for iudgement 18 What is Maintenance in a Iuror and what not 19 Maintenance by speaking of words Maintenance by comming to the barre with one of the parties 20 Maintenance by giuing of money to labour a Iury. 21 What is maintenance in witnesses and what not 22 Maintenance by procuring of an Indictment 23 What is maintenance in a Mainpernor 24 Maintenance in respect of his interest in the land Maintenance in respect of his possibility to haue the land Maintenance in respect of his warranty 25 Maintenance in respect of his rent A Lord may maintaine his tenant 26 Maintenance in respect of his debt 27 Maintenance in respect of his title to goods Maintenance by detaining of a writing deliuered in trust 28 Maintenance in respect of his ioint estate with others Maintenance by all the inhabitants of a parish 29 Maintenance of the poore in their suits Clerkes Counsellours and Atturneyes assigned to aid the poore 30 Maintenance in respect of kinred or alliance Vnlawfull maintenance is continuall during that suit Maintenance in respect of Gossiprie 31 Maintenance in respect the party could not speake English 32 Maintenance in a professor of the Law 33 Maintenance by an Atturney 34
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
Felon both dwell and therefore vpon a fugam fecit presented before the Coroner 22. As p. 96. the goods ought to be seised by the Shirife and praysed by an Enquest and the appraisement must bée inrolled in the Coroners Roll and the goods shal be deliuered to the towne to answere to the king for them Fi. Cor. 366 and though the goods be not deliuered to the towne yet if the goods were in the Felons possession at the time of his conuiction or flying the towne shall answere for them And some do affirme that the shirife and the Dozeners may seize Felons goods into the kings hands and the shirife shall deliuer those goods to the towne to answere to the king at the comming of the Iustices in Eyre But if neither the Shirife nor the Dozeners doe seize the same goods yet the towne shall answere to the king for them at the comming of the Iustices in Eyre For as soone as a fugam fecit is found before the Coroner Fi. Forf 32 the towne shal be presently charged with the goods of him that did flye away And though it be presented before the Iustices that a Felon was deliuered to the shirife with the manoure and with all his goods yet the towne shal be charged with the said Felons goods though the same was found and presented with intent to ease or discharge the same town And in like sort notwithstanding it doth appeare by the Coroners Roll Fi. Cor. 300 that the goods of a Felon were deliuered to one man of the town yet the king shall leuy those goods of the whole towne But when the shirife doth come to leuy those goods of the town by the shirifes consent they may be leuied of him only who had them in custody Fit Co. 181 One that was indicted of Felony appeared at the Exigent and pleaded and was acquit and his goods being forfeited because he did not come in before the Exigent awarded were praised by the Enquest which acquitted him at forty shillings and the same Enquest found what towne was charged with them which said presentment of the Enquest was inrolled and it was adiudged that the same towne may seize the same Felons goods in what place soeuer they can find them And because the towne where the Felons goods be shall answere for them therefore they which doe take into their possession any of the same Felons goods and other goods which do belong vnto the king as Deodands and such like are to be amerced by the Iustices in Eyre if the same goods be not deliuered vnto them by the towne which hath the charge of them for that the same towne hath the custody of them But by a Statute made Anno 31. Ed. 3. St. 31. E. 3. 3 the towne shal be eased of this charge if they can shew what other person hath detained those goods and that they could neuer haue possession of them the words of which statute be If any man or towne be charged in the Exchequer by the Estreats of the Iustices of the goods of Fugitiues and Felons and he will alledge in discharge of himselfe another that is chargeable he shal be heard and right shal be done And therfore if it be found by office before the Escheator that the goods of a man attainted of Felony be in the custody of such a person in this case a Scire facias shal be awarded vpon the same office against the said person to shew if he hath any thing to say why he should not answer those goods But if it be found by the Enquest which did attaint the Felon before Iustices of Gaole deliuery Iustices of Oier and Determiner or Iustices of Peace that any person doth detaine the goods of a Felon attainted the said Iustices cannot award proces thereupon against the party that doth detaine the same goods but they must send their Estreats into the Exchequer and the officers of the exchequer will award proces against the same party to leuy the same goods And yet if he that is presented to detaine the same goods do find himselfe grieued therewith he cannot haue a Trauerse in the Exchequer to that which is found by the Iury because the court of Exchequer hath not the record before thē neither can he trauerse the same before the Iustices of Gaole deliuerie Iustices of Oyer and Determiner or Iustices of peace for that they cannot award a Supersedeas to the Barons of the Exchequer to surcease their Proces But his onely remedie in this case is to procure a Certiorari to remooue the Record into the Kings Bench and there to tender his trauerse and auerrement and to haue a Supersedeas from thence to the Barons of the Exchequer to surcease their Proces And the same law is if the like thing be found by an Enquest in the Kings Bench after they haue deliuered their Records thereof into the Exchequer And a man which was indicted for the taking of goods of one that was attainted of Treason was put to the answer thereof So that sithence the sayd statute of 31. Edw. 3. others haue béene charged with felons goods as well as townes But the Sherife was alwayes charged with the profits of felons fugitiues lands Fi. Cor. 39◠according to the extent thereof The Sherife charged with felons lands and not any towne And so he was charged with goods cōfiscat as where vpō an indictment of felonie Fitz. Cor. 355. 368. the manoure is brought into the Court and the partie indicted doth disclaime therein by this disclaimer the King shall haue the manoure and the Sherife shall be charged therewith And the same manoure shall be praysed by the Enquest that doth trye the felonie and if it be found by the same Iurie that it was impaired by the Constable or any other who had the same in kéeping the Sherife shal be commaunded to leuie so much in value as it was impaired by the said Constable or other And in some cases the Sherife shall be charged with a felons goods Fitz. Cor. 290. 308. and not the towne where the felon did dwel or where his goods remained but that must be by agréement betwéene the said Sherife and the towne To whom the forf of lands for high treason shal accrue 47 In High treason the King shall haue the forfeiture of the offendors lands of whom soeuer they be holden and that by the common law for the offence committed is not to any subiect but to the Soueraigne gouernour himselfe his Crowne and Realme which is an offence of so high a nature that it cannot be recompenced with all that the offendor hath and then it should bée lesse counteruailed if any other should bée partaker with the King therin And the meane Lords shall receiue no losse thereby for they had nothing in the land but a Seigniorie out of it And if they hold ouer of the King by the like seruices then haue they lost