be the Lords man In the doing whereof the Tenant must be ungirt uncovered kneel upon both knees and hold both his hands together between the Lords hands sitting before him XXX This is to be done to the Lord himselfe and but once during the Tenants life XXXI The Kings Chamberlain shall take homage for him XXIJ. When an Inheritance descendeth to Coperceners the eldest only shall do Homage XXXIIJ But if they hold of the King all of them must do it XXXIV When one and his Ancestors whose heire he is have held by homage of a Lord and his Ancestors whose heir the Lord is time out of mind and the Lord hath received homage that bindeth him to warrant and acquit the Tenant XXXV Suit of Court is a service by comming to the Lords Court And here Land in the Lords hands whereof severall men hold by Suit of Court is termed a Mannor but the Land considered apart from the service is termed Demesnes XXXIV The particular kinds of services whereby Lands of inheritance are distinguished are Soccage and Knight-service XXXVII Both draw unto them certain commodities to the Lord partly in the Tenants life and partly after his death XXXVII That in his life is reasonable Aide or Portion towards the making of the Lords eldest Son a Knight and towards the marrying of his eldest daughter XXXIX The other after his death are wardship and reliefe XL. Wardship is the custody of the body and land of the heir within age which shall be til fourteen of a woman XLI Relief is a Portion to be paid by the heir to the Lord. XLII Soccage is tenure to be done out of Ward XLIII Where the next of the kinne to whom the Inheritance cannot descend shall have the heirs wardship till fourteen to the heirs own use XLIV Here for releif the Lord shall have presently so much as one years rent amounts unto XLV Tenure by Soccage in Cheif giveth the King primer seisin or the value of that Land by a year if the heir be of the age of fourteen year at his ancestors death XLVI Knight service is a service touching Warre to be done by the body of a man XLVII To all Knight service Homage is incident XLVIII Here the Wardship is the Lords to his own use and that till 2â— of an heir malâ— XLIX The wife shall be barred of her Dower so long as she detained the heir from him L. Wardship of the body giveth the wards marriage to the Lord. LJ If one hold sundry Lands of diverse Lords the wardship of body goeth to the Lord of that Land which the tenant held first and this is termed Tenure by priority LIJ The King shall have the Wardship of the body though the tenure of him be by Posteriority LIIJ The eldest child being heir apparant to his father shall not be in ward for his body during his Fathers life LIV. Tenure by Knight service in cheif giveth to the King the Wardship of all other Lands also LV. It giveth him likewise Primer seisin or the value of them all by half a year if the heir were in Ward by a whole year if he were not which Pâ—imer seisin must be paid and relief also LVI Relief for Land holden by Knight-service amounteth to an C.s. for a whole Knights fee to a C. Marks for a Baronie and to a C. Pounds for an Earledome LVII If The heir be within age at the Tenants death no relief shall be paid to the Lords that are to have the Wardship LVIII Grand Serjancie viz. Tenure of the Kings person to do to him a more speciall service whatsoever by the person of a man is a speciall Knight service in chief where thâ— King in stead of relief shall have the value of the Land by a year LIX Rent charge is a Rent with Liberty to distrain CHAP. 8. Rent seck Common I. BAre Hereditaments concerning land for which no distresse can be taken are a Rent Seck and Common II A Rent Seck is a Rent without liberty to distrain III. When a rent is granted for equaliy of Partition amongst Coperceners this rent may be distrained for though no such liberty be granted IV. The grant of a Seigniorie Rent charge and Rent Secke as also of a Remainder or Reversion of any of these or of the land it selfe is nothing worth without Attornment viz. agreement of the tenant that presently must be charged V. In the grant of a reversion depending upon a Freehold the Attornment of the Freeholder is sufficient though he be not the Tenant that presently must be charged VI. Common is a profit to be taken in anothers Land CHAP. 9. Villenage Annuity Corodie Office I. BAre hereditaments that concern the person are meerly of the person himself or by reason of the person II. of the first sort are Villeins III. A Villein is such a servant as himself and whatsoever he possesseth is the Lords if he claim it IV. The Lord cannot sease his villein in the the Kings presence V. The children of a Villein are also Villeins VI. Villenage beginneth by confessing a mans self to be one in a Court of Record VII A Villein is manumitted or set free when the Lord enableth him to possesse any thing against himself VIII Those by reason of the person are Annuities and Corodies or Offices IX Annuitie is a yearly rent to be had of the person of the Grantor X. Corodie is a Portion for ones sustenance XI Office is a duty of attendance upon a charge CHAP. 10. Franchises I. BEsides the Hereditaments already handled there be certain other derived from the Kings Prerogative which are termed Franchises II. A Franchise is a Royall priviledge in the hand of a subject III. It may be forfeited by misusing of it IV. The kinds of Franchises are divers and almost infinite V. Of such sort are Warrens Markets Faires Toll of every buyer for things he buyeth there not being for his own expences and whatsoever liberties or commodities else that created at first by the Kings speciall grant or of their own nature belonging to him are given to common persons to have any manner of estate in CHAP. 11. Chattels Reall and Personall Testament Bailment Contracts Actions Arbitrement I. SUch then is the nature of an hereditament in his sundry sorts and kinds II. Chattels are possessions wherein there cannot be severall estates III. All ones Chattels whether in possession or that any is indebted to him in may be given away or devised by his Testament IV. Testament is the appointment of some person to administer them for him after his death who therefore is called an Executor V. the Executors must prove the Will to be a true one in the spirituall Court and be sworn to see it performed VI. If many Executors be made and one refuse yet he may administer at his pleasure VII But an Executor once administring can never refuse after VIII Executors must answer all certain duties of the Testator IX But so as duties
matter for the King is found by a Jurie called an Enqest of Office III. This may be before the Officers as Sheriffs Escheators Coroners c. Virtute officii Brevis or Commissionis to them directed IV. Here the number of twelve is not of necessity requisite V. An Enquiry is an office or presentment VI. An Office which findeth matter to intitle the King to some possession VII Upon as high a matter of Record to avoid the Office as the Office it self a man may traverse it VIII If the office be for personal goods the party may alwayes have a traverse or plead any matter unto it unlesse the Escheator have accounted for them and that although the office finde the Kings title to be by matter of Record IX The King upon office finding for him if his entry be lawfull and the possessions to be had at the time is presently in possession X. Also he shall be answered all the mean profits from the time of his title XI Upon an office found virtute Officii whereby the King is intitled to ones wardship the heir shall never have livery viz. the land delivered out of the Kings hands XII But upon a perfect office Virtute Brevis or Commissionis if it be a speciall writ or Commission not a general one to inquire of all wards he may XIII Therefore here the heir is allowed these Commissions following or writs in the nature of such Commissions viz 1. For finding of an office for the King 2. For the having of the land out of the Kings hand XIV Those for the finding of an office are Diem clausic extremum Mandamus and Devenerunc to inquire what lands holden of the King and what of others the ancestors was seized off the day of his death who is his next heir and of what age XV. The Diem clausit extremum is to be sued within the year after his death XVI The Mandamus is after the year and here it must further be inquired who took the profits XVII The Devenerunt is when the ancestor dieth in ward to the King XVIII Upon defect in Offices found by vertue of such writs or commissions these writs following shall issue out to make them perfect viz. XIX A Quae plura upon leaving of any land out iâ— these offices XX A Melius inquirendum upon any other defect iâ— the Office XXI A Datum est nobis intelligi upon an Office finding lands to be holden of any other person when there is a Record to prove that they are holden of the King XXII The writs for having the lands out of the Kings hands are an Aetate probanda and a writ iâ— Livery XXIII An Aetate probanda is to inquire whetheâ— he bâ— of full age or not XXIV A writ of Livery is after a perfect Office finding a tenure in cheif to have all the lands delivereâ— to him at once by the King XXV Two being found heirs by one and the saâ—â— title The King shall not make Livery until by enter-pleader the truth be discussed at his full age that waâ— found heir first XXVI Amongst Co-parceners the King upon Livery shall make partition XXVII He that holdeth of the King by Knight service but not in Chief shall not sue Livery Be when he cometh to his full age shall have an Ousterâ— main XXVIII A presentment is an enquiry finding some offence against the King which is also called an Indictment XXIX Every strong suspition of such offence appearing of Record hath the force of an Indictment XXX Without an Indictment the King can have no suit upon a wrong done principally to another but done to himsef he may XXXI For the preventing of divers offences viz. trespasses to the body and felonies and committing them that offend to prison untill they may be indicted and so duely punished every Hundred hath his High Constable and every several tithing within the Hundred hath his petty Constables or Headboroughs XXXII Any man suspecting another of a felonie committed or but intended may arrest him XXXIII With indictments of trespasse informations upon penal Statutes such as inflict a pecuniarie mulct or other penalty upon offenders have a neer affinity XXIV Indictments of the death of a man are to be taken before the Coroners CHAP. 37. Proper Original Processe I. HItherto of the first matter of the suit it followeth to speak of original processe II. Original processe is that processe which is untill the defendant do appear III. Original processe is proper or improper IV. Proper which is to bring some matter into Plea or solemn action and it is single or mixt V. Single which is by the possessions onely lands or goods or onely by the person VI. That by the land is of two soâ—ts first summons and Grand Cape in a real Praecipe quod reddat VII The summons is the warning of the tenant in his land by certain summoners VIII The summons upon an action brought against one as heir must be in the land that did descend IX If it be to recover the freehold of land it self it must be in the same land X. A Grand Cape is to take the Land into the Kings hands by the view of lawfull men with a summons of the tenant to answer as well to his default as to the demandants action XI If the tenant be returned summoned where iâ— deed he was not the writ shall abate XII Secondly it is summons and re-summons in a Mordancestor Juris utrum and an Assize of Darren presentment and upon default the enquest awarded XIII Original processe by the goods as in Assize of novel disseisin and nusance where the original proces is Pone per vadios c. salvos plegios XIV A Pone pervadios salvos plegios is a procesâ— to attach the defendant by certain of his proper goods being meer personal chattels which he shall forfeit iâ— he appear not and upon such default the Inquest summoned by the writ is presently to be awarded to recognize the Assize XV. The original processe by the person is a Capias which is a processe to imprison him then an exigent oâ— solemn demand at five severall County Courts immediately following one another and for not appearing Outlawry XVI This Judgment of Outlawry is given by the Coroner in the fift County and is onely in mayhem felonie and treason XVII If the Exigent be returned not fully serve without any folly in the Plaintiffe he bringing an Exigent de novo before any other County holden shaâ—â— have the benefit of the former Counties XVIII Outlawry disableth him from suing anâ— actlon XIX By Outlawry all his chattels are forfeit to the King even such as he hath but a right unto XX. In Mayhem there must be three Capias viz. Capias alias pluries tâ—o in Felonie viz. Stealth Robbery and Burglary and onely one in the death of a man and high Treason XXI In felonie and Treason they that tarry the Exigent forfeit their chattels XXII A mixt
if after the fathers death he enter before his younger brother born of the same father and mother within Espousals and continue the possession all his life without interruption VI. If the next be women in equal distance as daughters Sisters Aunts c. they shall inherit alike and are but as one heir VII Where the generall Entry of one is of the rest if they list VIII The inheritance that descendeth shal be charged with the deed of the Ancestor binding himself and his heirs IX The Dying seized of the inheritance and Freehold together whereby the land descends unto his heir taketh away the Entry of every one that may have an Action X. But claim upon the land within a year before the death or if they dare not upon the land for fear of some bodily hurt then as neer the land as they dare saveth their entry XI A Fee-simple is a Fee-simple conditionall or absolute XII Conditionall is a fee simple to one and the heirs of his body XIII This estate before issue cannot be alienated after issue had becometh an absolvte fee simple XIV But so as if the issue fail before the alienation the donor shall have it XV. Hither belong hereditaments given in Frank-marriage with ones kinswoman XVI Absolute is a fee-simple to one and his heirs whatsoever XVII This estate descending to Females if one of them have lands of the same Ancestor by Frank-marriage she shall have no more unlesse she be content that the value thereof be allowed to the other XVIII To this place are to be referred Lands given to a Corporation which go in perpetuall succession XIX Here two speciall estates for life Dower and Tenancie by the courtesie of England do arise after ones death that hath an InheritaÌ„ce joyned with the freehold XX. Howbeit these estates must be of a fee-simple or such an estate taile as may go to the issue had between the Donees XXI Dower is an estate whereby the woman hath the thirds in severalty XXII She must be nine years of age at the time of her husbands death otherwise she shal not be endowed XXIII Detaining of deeds concerning Inheritance descended to the heir is a barr of her Dower XXIV If the husband at the Church door ad ostium ecclesiae or being heir apparant by his fathers or mothers consent ex assâ—nsu patris or matris presently upon affiance endow her of any certainty as of the whole moity or lesse part c. this will barr her of her thirds if she agree to it XXV Tenancie by the curtesie of England is an estate whereby of an actuall possession the husband that hath issue by her born alive shall have the whole CHAP. VI. Tenement Advowson I HEreditaments are tenements or bare hereditaments II. A Tenement is a possession holden the Fee-simple whereof when he that hath it dieth without heir cometh to the Lord III. Of this sort are Lands and Advowsons IV. Land is a Tenement in Mannuall occupation V. Under the name of Land are comprehended not only Gardens Meadowes Pastures Woods Rivers c but also Messuages Mils Yards Tofts Castles the like VI. Churches and Church-Yards belong to the Incumbent VII Prescription here hath no force VIII All Land is holden of the King immediatly or by means himselfe not having any higher upon earth of whom to hold IX Escheats of all Cities appertain to the King X All Mines of Gold and Silver or wherein the gold or silver is of the greater value are the Kings XI Amongst Coperceners the eldest upon partition shall have the cheif house XII Seisin delivered of land alwaies passeth a freehold XIII Otherwise a Freehold of land cannot passe save by release and confirmation where they are by way of enlarging an estate XIV They may also somtimes passe by Exchanges Endowments or Surrenders XV. An estate made within view of land is a good Liverie of seisin if the other enter in the Feoffors life time XVI An Advowson is an interest of presenting to a Church CHAP. 7. Distres Seigniories Fealty Rent-service Homage Suit of Court Tenures Releife and Rent charge I. RAre Hereditaments are those which are not holden and concern the Land or the person II. Those that concern the Land are extinguished or gone for ever when he that hath them hath high and continuing an estate as he hath the hereditaments III. Otherwise they are but suspended or gone for a time IV. These are leviable by distresse or such as cannot be distrâ—ined for V. Distresse is a taking of Chattels found upon the same Land for satisfaction of Arrearages VI. The King may distrain in any other land of the same mans for his Service or Rent charge VII The distresse being put in some place where the owner may lawfully come by them as if they be things that have life to give them meat c. he that distraineth shall not be charged what hurt soever they receive VIII Bare hereditaments that may be distrained for are a Seigniorie or rent charge IX Seigniories are services whereby Lands are holden X. Services are common to all certain estates or proper to inheritances XI Common as Fealty and Rent service whereof Fealty is incident to every such estate XII And therefore the Seigniory or Tenancy being altered it must be done anew XIII All other both common and proper grow by Reservation XIV Fealty is an Oath to be faithfull to the Lord for the Tenements XV. Rent service is a Rent to be paid to the Lord at certain set times XVI And to this place we may refer all services that lie in Fesance XVII Of which kind two amongst the rest are specially to be considered viz. Frank-Almoign and Divine Service XVIII Frank-Almoigne is when a man of the Church holdeth freely in Alms for which he is bound to say Prayers XIX But because the Prayers are not limited in certain he neither shal do Fealty nor is subject to distres XX. The lord must warrant such a Tenant against himselfe and his heirs and save him harmlesse of all manner of all services against the Lords above XXI Divine service is a spirituall kinde of service limited in certain XXII These are the services whereby every certain estate may be holden XXIII There follow those proper to Inheritances the Grantee whereof shall hold of the Grantor by such services as he holdeth over if other services be not reserved XXIV Or the Grantor may appoint him â—o hold of the next Lord. XXV A Mesn must acquit the Tenant of all manner of services against the Lords Paramont XXVI But Donors in Frankmarriage cannot hold but by Fealty and that of the Donor untill the Fourth degree be past who must also acquit them of all manner of services XXVII One that holdeth of the King as of his person alienating the Free hold without licence forfeiteth the Land XXVIII Services proper to Estates of Inheritance are Homage and Suit or Court XXIX Homage is an Oath of fidelity acknowledging himselfe to
as Assumpsits for an assumption or promise to be performed and the like XII This lieth not against Executors XIII Here and in all other actions of trespasse upon the case the writ must comprehend all the matter oâ— substance XIV The other that break the peace but not 〈◊〉 are called trespasses against the peace XV. And of this kinde are especially of the nature of such a trespasse an action of deceit and an action oâ— conspiracie XVI An action of deceit is upon any deceit committed XVII Here if it be upon a non-summons in a plâ—â— of land whereby he looseth the land by default or sucâ— like it must be brought during the life of the Summoners XVIII In a writ of deceit the Plaintiffe shall recâ—ver all that he hath lost XIX Conspiracie in the nature of a trespasse upon conspiring by many to prejudice a man wronâ—fully XX. Such are trespasses without force is an Action 〈◊〉 trespasse coupled with force is an action of trespasse foâ— a trespasse done XXI An Action of trespasse brought in a Court Baron must not suppose it to be done by force and armes XXII And therefore no Capias lieth there in such case XXIII Speciall actions of trespasse are these that follow XXIV De Parco fracto for taking distresse out of the Pound XXV Rescous for taking a distresse away before it be impounded XXVI Ejectione firmae when lessee for years of land is ousted where the term it self shall be recovered if it be not past CHAP. 33. Appeal I. THese are Common Pleas an Appeal that concerneth life is the parties private action prosecuting also for the Crown in respect of a felonie II. Appeals of the death of a man are given to the heir of the party slain CHAP. 34. A Writ of right Patent and justicies I. THus far of original writs Commissional are these which are not returnable but determinable before the parties to whom they are directed II These are Commissionary or meer Commissions III. Of the first sort are those that give authority to a Court Baron to hold plea. IV. Here the suitors are the Judges not the Sheriff or Steward V. These are a writ of right Patent or a Justicies VI. In both these the same course is holden as is those that went before VII A writ of right patent is a writ for the meeâ— right of Tenements holden of a common person to be brought in the Lords Court of that Mannor VIII If he hold noe Court or otherwise yield hiâ— Court to the King for that time then it may be in the Kings Court with this clause Quia B. capitalis Dominâ— nobis inde remisit curiam IX This writ must shew by what service the land iâ— holden X. The writ remaineth alwayes with the party hiâ—self XI If one privie in blood not past the third degree enter after the death of the ancestor that died not seiâ—ed in such case a writ of right patent is called a wrâ—â— of right de rationabili parte terrae XII A woman that hath received part of hâ— Dower shall have a writ of right of Dower patent foâ— the remnant whereof she is to be endowed XIII A Justicies is a writ that giveth the County Court power to hold plea. XIV And therefore it t s called a Viconte writ oâ— this sort are XV. An Assize of petty nusance where a mill oâ— such like is levied to ones nusance XVI All of them are comprehended in these Verse rica ca _____ gultum ges lendinum Fab fur porta domus vir gur mo murus ovilâ— Et pons traduntur haec vicecomitibus XVII Admeasurement of Dowerby the heir wheâ—â— his Guardian or himself endowed the wife in his noâ—â— age of more then she ought to have XVIII Admeasurement of pasture by a Commoner whom another Commoner wrongeth by putting iâ— more Beasts into the Common then he should XIX Here all the Commoners shall be admeasured XX. A nativo habendo for the Lord that hath an Inheritance in any Villein when his Villein departeth away from him XXI Here if the Villein plead that he is frank the Sheriff cannot proceed XXII Rationalibus divisis for that Lord whose land or waste hath by little and little been incroached upon within time of memorie until now by a Lord whose Seigniory adjoyneth in another ville against the Lord so incroaching XXIII A homine replegiando for one imprisoned or in prison deteined where he should not XXIV A Replevin for goods or chattels distreined XXV This may be both by writ and plaint in any Court Baron as well as in the County Court XXVI This being by plaint it shall not proceed if any thing touching the freehold come in question XXVII Upon the pluris not served by the Sheriff his power is determined and the parties shall plead in Bank XXVIII Many of the actions that went before both for real things to be done as Consuetudinibus servitiis secta ad molendinum Quod permittat Mesne Dower unde nihil habet And also personal actions as annuity debt detinue accompt covenant trespasse to what summe soever may as well be brought in the County by Justicies as to be returnable in the Common Place XXIX Meer Commissions are these that follow being all of them to be directed to choice persons such as it shall please the King XXX Oyer and Terminer to heare and determine upon some heinous offence committed XXXI In these and such like commissions lie properly a writ of Association and Si non omnes XXXII Association is a writ for other to be associate into their company XXXIII Si non omnes is a writ for the rest to proceed although the other come not XXXIV Ad quod damnum to enquire what hurt it may be to the King Country or any other for the King to grant such or such a thing XXXV Perambulatione facienda to enquire of the bounds of 2. Seigniories or â—ownes where an incroachment by little and little is supposed to have been made XXXVI This must be by the mutual assent of both Lords CHAP. 35. Plaints and Bills I. SO far of writs it followeth to speak of Plaints and Bills both being in such Courts as hold pleâ— without original writ II. A plaint is in matters that concern Common pleas III. A Plaint of trespasse in a Court Baron shall not proceed if the freehold come in question IV. A Bill is in pleas of the Crown as an appeal of felonie mayhem rape c. may be by Bill before one Coroner of the County finding first sureties to the Sheriffe V. One whose attendance is necessary in any Court shall sue and be sued there in form of Plaint which is called a Bill of Priviledge CHAP 36. A Quo Warranto Office Indictment I. THe King hath a speciall means of suit for trying of the right of Franchises usurped upon him called a Quo Warranto and is to be brought before the Justices in Eyre II An Enquiry for the King is when
heirs as aforesaid A Fine levied of such lands shall be void in Law and the heir or reversioner albeit they be for full age in England and out of prison need not make their claim Howbeit this clause concerning a fine is altered by 32 H 8. 39. which see infra Stat. 34 35. H. 8 20. No common recovery 〈◊〉 lands in tail of the gift or other provision of the King or his progenitors though it be with voucher against tenant in tail the remainder or reversion being 〈◊〉 the King at the time of the recovery shall bind the heir in tail or bar him of his entry Tenant in us◠shall take no advantage for any rccompence in valor agianst the vouchee or his heirs Rule 24. Mag. Cart. 7. 9. H. 3. The wife after the death of her husband shall abide in his chief messuage forty dayes within which time her dower shall be assigned her If the chief messuage be a Castle then she shall have a competent house provided her til her dower be assigned Westm 2. 34. 13. E. 1. A woman that leaveth her husband and abideth with an adulterer shall not have Dower unlesse the husband voluntarily and without coertion of the Church reconcile her and suffer her to dwell with him Stat. 11. H. 7. 20. If a woman that hath an estate in Dower for life or in tail joyntly with her husband or only to her self or to her use in any lands c. of the inheritance or purchase of her husband or given to the husband and wife by the husbands ancestors or any seised to the use of the husband or his ancestors do sole or which an after taken husband discontinue or suffer a recovery by Covin it shall be voyd and he to whom the land ought to belong after the death of the said woman may enter as if the woman were dead without discontinuance or recovery Howbeit the woman may enter after the Husbands death but if the woman were sole the recovery or discontinuance barreth her for ever This Act extends not to any recovery or discontinuance with the heir next inheritable to the woman or by his consent of Record enrolled Stat. 27. H. 8. 10. Where an estate is made in possession or use to Husband and wife and his heirs or the heirs of their bodies or of one of their bodies or to them for their lives or for the wives life for her Jointure In any of these cases she shall not have Dower Howbeit upon a lawfull eviction of that Jointure she shall be endowed according to the rate of her husbands land whereof she was dowable Such a Joynture being made after marriage the wife after the husbands death may refuse it and betake her to her Dower unlesse such Joyntute be made by Act of Parliament CHAP. 7. Rule 7. STat. de districtione Scaccarii 51. H. 3◠The owner of impounded cattel may give them food without disturbance A distresse taken for the Kings debt shall not be sold within 15 dayes and upon shewing of a Tally and giving security for his appearance in the Exchequer upon the next accompt the distresse shall cease◠The Sherif shall also attach the party that received the debt to be there likewise at the same time Neither draught cattel nor sheep shall be distrained except for Damage-feasant so long as other goods may be found to satisfye the debt Distresses shall be reasonable The Sheriffe shall answer all debts received and where the Sherif chargeth himself the debt shal be quitted Marlebr 15. 52. H. 3. It shall not be lawfull for any except the King and his officers having special authority to take distresses out of his fee or in the Kings high way or in the common street Marlebr 4. None shall drive a distresse out of the County wherein it is taken in pain to be fined and to make recompence to the party grieved none shal take an unreasonable distress in pain of amerciament Westm 1. 16. 3. E. 1. None shall drive a distress out of the County or distrain wrongfully upon the penalties provided by the Statute of Marlebr Westm 2. 36. 13. E. 1. None shall procure any to distrain another to make him appear at the county court or any other inferiour court on purpose to vex him and put him to charge and trouble in pain to make fine to the King and to pay the party grieved treble damages Westm 2. 37. 13. E. 1. No distresse shall be taken but by Bailiffs known and sworn in pain to restore damages to the party grieved and to be grievously punished by the King Artic. Cler. 9. 9. E. 2. Distresses shall not be taken in the High-way nor in the ancient fees of the Church Stat. 1 2. P.M. 12. No distresse of Cattell shall be driven out of the hundred rape wapentake or lath where it is taken except to a pound Overt within the same Shire not above three miles distant from the place where it is so taken Neither shall a distresse be impounded in several places whereby the owner may be constrained to sue several Replevins for the delivery thereof in pain to forfeit to the party grieved for every offence committed against the Act. 5 l. and treble damages None shall take above 4 d. for the poundage of one whole distresse and where lesse is usually taken to take lesse in paine to forfeit it to the party grieved 5 l. and so much money as is taken above 4 d. Rule 24 Quia emptores terrarum 18. E. 1. In all Feoffments to one and his heirs the Feoffee shall hold his land and the chief Lord of the fee by the same services that the Feoffer held before Here if the Feoffment be made of parcel he shall hold of the chief Lord pro particula according to the quantity of the land and the Feoffor shall be set free for that part Rule 27. Mag. Cart. 31. 9. H. 3. If a Baronie c. Escheat to the King the tenants that hold of the same not having other lands that hold of the King in cheif shall pay like relief and do like services to the King after such Escheat as they payd or did to their former Lords and not otherwise Stat. 1. E. 6 4. So also it is when a Seigniorie cometh to the King by attainder conviction outlawry dissolution or surrender Stat 1. E. 3. Stat. 2. Cap 12. Lands holden of the King in chief and aliened without licence shall not be forfeited but a reasonable fine shall be taken of such lands so aliened by due processe in Chancery A◠cap. 13 lands holden of the King as of some Honor sh◠not be taken into the Kings hands as if they were holden of the King in chief as of his Crown Rule 31. Stat. 33. H. 8 22. A fee set down for respiting of Homage in the Exchequer or other Courts Rule 35. Marlebr 9. 52. H. 3. None enfeoffed b◠deed shall be distrained to do suit to his Lords Court unlesse he be bound to
do it by the form of his deed or he or his ancestors have used to do it before the Kings first voyage in Brittain being about 39 years and an halfe before the making of this Statute The eldest Coparcener shall only do suit of Court and the other parceners shall be contributary All one Jointenant or tenant in Common shall do the 〈◊〉 and the rest shall contribute Rule 38. Westm 35. Reasonable aid shall be 20 l. for a whole Knights fee and as much for 20. l. land iâ— soccage and so more or lesse according to that rate It shall be levied at 15 years age of the son and â— years of the daughter and if the Father levy it and dye before the marriage of the daughter the father executors shall be charged therewith and if they have not assets the heir shall be therewith charged Stat. 25 E. 3. Stat. 5. 11. Reasonable aid to make the Kings eldest son a Knight and to marry his eldeâ— daughter shall be levied of all lands holden of the King without Mean according to the rate in the former Statute Rule 43. Marlbr 17. 52. H. 3. Guardian in soccage shall make no waste sale or destruction of the heirs inheritance but safely keep the same to the use of the heir and when he comes to age shall answer the issues thereof by a lawful accompt saving his reasonabl costs neither shall such Guardian sell the marriage of such heir but to his advantage Rule 48. Magn. Cart 3 9. H. 3. The Lord shall take homage of the heir before he have the Wardship and such heir after he hath been in Ward shall at his full age of 21 yeares have his inheritance without relief or fine and if the heir within age be made a Knight yet his land shall remain in ward untill his full age aforesaid Marlebr 6. 52. H. 3. If one enfeoffe his heir within age to cause the Lord to lose his Wardship and die yet the Lord shall have the Wardship So when a fraudulent feoffment is made by a tenant upon condition to revert after certain yeares to him and his heirs if the feoffees pay not a certain sum to the value or more then the value of the lands In such case the Lord shall have a writ de Cuctodia reddenda And if being able to aver this matter he recover yet the feoffees shall have the land again when the heir comes to age Howbeit the Lord not being able to aver it shall render the feoffees their costs and damages Stat. 32. H. 1. Two Jointenants or more holding of the King and he that hath the fee dyeth the King shal presently have the ward-ship and marriag of the body of his heir if he be within age Saving to every woman her dower of two parts of those lands divided from the third part as in that Statute is directed and saving to the King during the wards minority the reversion of such Jointenants and tenants in dower Rule 50. Merton 6. 20. H 3. If any heir 14 yeares old or above marrie himself without licence of his Lord to defraud him of the marriage and the Lord of him a convenient marraige without disparagement thâ— Lord shall retain the land beyond the term of his fuâ—â— age untill he may receive the double value of the maâ—riage If a Lord marrie the heir within 14 yeares of age whereby he is disparaged he shall lose the Wardship and the profits of the lands shal by the Wards friends be converted to the Wards use Merton 7. 20. H. 3. If an heir will not marry at the request of the Lord he shall pay to the lord as much as his marraige is worth for of right the marraige of an heir within age pertaineth to the Lord. West 1. 22. 3. E. 1. The Lord may hold the land oâ— heirs female two yeares after their age of 14 within which two years if he marrie them not they shall gâ— quit without giving any thing for the wardship or marriage and If they will not except a convenient marriage tendred by the Lord he shall hold the land til their age of 21 yeares and over until he have taken the value of the marriage Stat 4. 5. P.M. 8. None shall take or convey or care to be taken or conveyed away any maid or woman child unmarried being within the age of 16 yeares or of the custodie and against the will of the father or mother of such childe or of the person to whom the father of such child by his last will or other act in his life time hath appointed the governance of such chilâ— except such taking shall be without fraud by or foâ— the Master or Mistris of such childe or her Guardiaâ— in Soccage or Chivalrie in pain of two years imprisoâ—ment with out Bail or else to pay such fine as shall be assessed by the Council in the Star-chamber None shall take away or deflower any such childe oâ— against the will of her father if he be living or of heâ— mother having the custody of her if the Father bâ— dead contract matrimony with any such Child except by the title of Wardship in pain of five years imprisonment or to pay a fine to be assessed by the sayd Councill The Fines are to be divided betwixt their Majesties and the prosecutor The said Council and Justices of Assize have power to hear and determine these offences If any such child above the age of 12. and under the age of 14 consent to any such contract of matrimony the next of the kin to whom her inheritance should come shall enjoy it during her life but after her decease it shall revert to the right inheritor other then to him that did so contract matrimony This act shall not prejudice any custome in London or any other Citty or town concerning Orphans CHAP. Rule 6. MErton 4 20. H. 3. Lords of wastes or commonable woods or pastures may approve against their Tenants part thereof so as they leave sufficient Common besides together with free ingresse and regresse to enjoy the same West 2 46 13 E. 1. Such a Lord may approve in like sort against his neighbours which have common appurtenance and for a Windmil Sheepcote Dairy enlarging of a Court or Courtilage none shall be grieved by Assize of novel disseisin If a ditch or hedge made for that purpose be thrown down and the parties offending be not discovered by the Townes adjacent they shall make it up again and render damages Stat. 3. E. 6. 3. Upon Iudgment for the Plaintiff in an Assize upon any branch of the said Statutes of Merton and Westm 2. the Court shall award treble damages This Statute shall not extend to houses built before the making thereof not having above three acres laid to them nor to a Garden Orchard or Pond not exceeding two acres Stat. 43. El. 11. All contract made betwixt Lords and Commoners of wasts c. subject to surrounding shall be good save where the Queen
c. hath an Interest This Act shall not be prejudicial to Lords and Commoners in any part of wasts not assigned to Drainers c. nor to any Port or Haven CHAP. 9. Rule 3 STat. 19 H. 7. 15. Upon a feoffment made to the use of a Villein the Lord may enter into the land it self Rule 7. Stat. 9. R 2 2. In a suit by a Villein against his Lord the Lord shall not be barred of their Villeins because of their answer in Law Rule 11. E. 61. 6. 16. No office or deputation thereof or of any part thereof which concerneth the administration or execution of Justice or the receit controlement or payment of the Kings money or revenue or any accompt Aulnage Auditorship or Surveying of the Kings Lands or Customes or Administration or Attendance in any Custome-house or keeping of any of the Kings Towns Castles or Fortress being places of strength or defence or any Clerkship in a Court of Record shall be bargained or sold or any reward or agreement of Reward taken for it upon pain that the seller c. shall forfeit all his Interest in such office or deputation c. and the buyer be a disabled person to enjoy the same And all bonds c. to be void as against him by whom they are made Howbeit all Acts executed by any such person offending before he be removed from his Office c. shall remain good This sttatute extendeth not to any Office of Inheritance or to any parkership or to any offices to be given by the Chief Justices of the Kings Bench or Common place or by any Iustices of Assize CHAP. 10 Rule 2. STat. 27. H. 8 24. No subject shall have authority to pardon any felony or any accessories to felony or any outlawry for such offences Nor to make any justices of Eyre Assize Peace or Gaole-delivery All originall Writs Indictments of treason felonie tre passe and processe upon the same shall be only in the Kings name and the Teste in his name that hath the Franchise Every Writ and Indictment whereby any thing is supposed to be done against the peace shall be supposed to be done against the Kings peace onely and not against the peace of any subject the King shall have all fines issues amerciaments and forfeitures lost by any Officers of Franchises for non-execution or insufficient returnes of processe or for any misdemeanour concerning their office with many provisoes in the same Statute CHAP. 11. Rule 4 WEstm 2. 23. 13. E. 1. Executors shall have a Writ of accompt and the action and processe in the same writ as their testator should if he had lived Stat. 4. E. 3. 7. 1. Executors shal have an action for a trespass done to their testator as of his goods and chattels carried away in his life and recover their damages in like manner as he whose executors they are might have done if he had lived Stat. 32. H. 8. 1. He that hath lands tenements 〈◊〉 hereditaments in soccage and none holden by knight-service or soccage in chief may devise all by his waâ— in writing or give all by act executed in his life 〈◊〉 may he that hath land holden by soccage in cheif anâ— other land holden of a common person by soccage and none holden by Knight-service saving to the Kingâ— primer seisin relief suing of the same out of the Kingâ— hands fines for alienation c. and all other dutieâ— for the soccage in chief as before hath been accustomed He that hath lands c. holden by Knight service whether he have any other lands holden of the King or of any other person by Knight-service or orherwise or not may do the like for two parts in three to be divided in certainty for the advancement of his wife or children and payment of his debts saving unto the King the wardship or primer seisin of the third part without any charge dower c. and finds for alienation He that hath lands c. holden by knight-service whether of the king alone by knight-service not in cheif or of a common person or som holden of the king some of a common person and other land in soccage may devise by will or give by act executed in his life two parts of that holden by knight-service and all the soccage saving to the Lord of the land holden by knight-service the Wardship of a full third part thereof without any charge dower c. Provided that every one shall sue his liverie and pay his relief and heriot as if this Act had never been made Stat. 34. 35. H. 8 The former Statute shall be extended to enable devises and other Acts onely by Land in Fee-simple And if the partie that maketh the will or other Act be seized in Coparcenerie or in the common it shal be good for so much as in himselfe of right is The wardship relief primer seisin c. shall be of lands that descend immediatly after the death of him that maketh the will or other act as well in fee-tail as fee-simple And the devise of two parts residue shall be good though it be of all his fee-simples land Such a will shall be good for two parts in case only where two may be devised though it be made for the whole or more then two parts Such wils made by a feme-covert infant under the age of 21 yeares Ideot or one of non-sane memorie shall not be good See also some other things there for the explanation of the former Act of 32 H. 8. 1. Rule 10. Stat. 21. H 8. 4. that part of the executors which take upon them the charge of a will may sell the land devised by the Testator to be sold albeit the other part which refuse will not joyn with them Rule 11. Stat. 25. E. 3. Stat. 5 5. Executors of executors shall have actions of debt accompt and goods carried away of the first Testators and Execution of Statute-Merchants recognizances made unto him And shall also answer for Assets as the first executors should have done Rule 12. Westm 2. 19. 13. E. 1. the Ordinarie shall satisfie debts wherein the Intestate was bound as executors should Stat. 31. E. 3 11. the Ordinaries shall depute next friends of the Intestate to administer his goods who shall sue and be sued and be accountable to the Ordinaries as executors should Stat. 21 H. 8. 5. Administration shall be committed to the widdow of the Intestate or to the next of his blood or to both at the discretion of the Ordinary The Oâ—dinary not doing his duty herein forfeiteth ten pound Stat. 43. El. 8. If any obtain goods of an Intestate fraud as by procuring administration to be granted a stranger of mean estate or not to be found and noâ— upon valuable consideration c. he shall be charge as executor in his own wrong as far as the goods debts extend Rule 20. Westm 1. 4. 3. E. 1. Where a man dog cat escape alive out of the Ship it
of the estate either by reason of a particular estate ended or a condition broken XV. Of a particular estate ended is an ad terminum qui praeteriit or Entry ad communem legem XVI Ad terminum qui praeteriit is upon a deforcement by the lessee or a stranger after the Lease for years or life expired XVII Entry ad communem legem is when a tenant for life doth alien and die XVIII Of a condition broken as Causa matrimonii praelocuti XIX Causa matrimonii praelocuti is for a woman that giveth land to a man to marry her and he will not XX· Those grounded upon the disability of the person are a Dum fuit infra aetatem and a Dum non suit compos mentis XXI Dum fuit infra aetatem is by the infant when he cometh to his full age upon an alienation by himself or his ancestor being within age XXII But the clause that he is of full age viz. qui plenae est aetatis shall not be inserted in the Writ if either it be brought in the degrees per cui or post or upon the ancestors alienation XXIII Dum non fuit compos mentis is upon the alienation of himself or his ancestor or being of non sanâ— memoriae CHA Cui in vita sua Cui in vita sine assensu Capituli A writ of Intrusion a writ of Entry in the quibus I. THose upon a wrong at the first are upon a discontinuance or an Ouster II. Upon a discontinuance as a Cui in vita or a sine assensu Capituli III. A Cui in vita for the wife after the husbands death upon his alienation of her fee simple fee tail or free-hold or of such a Joynt estate in them IV. and in this writ claiming a fee-simple she shall say Quod clamat esse jus hereditatem suam V. If it be an estate of fee-simple and she bring not in her life time a cui in vita the heir shall have a sur cui in vita VI. And of this nature is a Cui ante divortium when it is brought by the wife after divorcement upon such an alienation as before VII A sine assensu Capituli is for the successor of a Bishop Abbot Prior Dean Prebendary Master of an Hospital c. after the discontinuance of the Predecessor VIII Upon an Ouster is either an Intrusion or a disseisin IX That upon an Intrusion is called a writ of Intrusion and is for him in the reversion or remainder in fee-simple or for life after the death of tenant for life in Dower or by the curtesie X. Upon a disseisin is when the disseisin is done to him or his ancestor as a Writ of Entry in the Quibus or which is all one in the nature of an Assize CHAP. 27. A Writ of Ayel Besaiell Cosinage Formedon Escheat Dower a Precipe in Capite I. WRits that shew the demandants title are meer possessory or in the right II. Meer possessorie are those which are brought by the next heir upon an abatement after the death of any ancestor other then his Father Mother Brother Sister Uncle Aunt Nephew Neece seized in demesne as of the fee-simple the day of his death Of this sort are III· A writ of Ayell after the death of his Grandfather or Grandmother IV. A writ of Besayell after the death of his great Grandfather or great Grandmother V. A Writ of Cosinage after the death of his great great Grandfather or Grandmother or any other Collateral Cousin save those above-mentioned in the second Rule of this Chapter VI. In the right is that which is to disprove the right of the tenant and is a writ of right in his nature or a praecipe in Capite VII A writ of Right in his nature which sheweth how the demandants right is grown and is a Formedon or a writ of Escheat and Dower unde nihil habet VIII A Formedon is a praecipe quod reddat entitling the partie by the form of the gift and is a Formedon in remainder or a Formedon in reverter IX A Formedon in remaninder is for him in the remainder for life or in fee upon a lease for life expired X. A Formedon in Reverter is for the Donor after the estate in tail determined XI A writ of Escheat is for the Lord upon an Escheat XII Dower unde nihil habet is a writ for ones Dower who hath received no part at all thereof XIII A writ of Dower lieth against Gardein by Knights service XIV A praecipe in capite is a praecipe quod reddat for the meer right of lands holden in chief CHAP. 28. A writ of right of ward and sur disclaimer I. OTher real praecipe quod reddats are those which are in respect of a Seigniorie as a writ of right of ward and a writ of right sur-disclaimer II. A writ of right or ward is to recover the wardship III. If it be for the recoverie of the wardship of the body it lieth as well for Gardein in Socage as for Gardein by Knight-service IV. But if it be for the recovery of the wardship of the land it lieth onely for Gardien by Knight-service V. A writ of right sur-disclaimer is for the Lord to prove the lands to be holden of him when in Action where the services should be recovered the tenant in Court of Record disclaimeth to hold of him VI. If in this writ the Lord can prove the Land to be holden of him he shall recover the Land it self CHAP. 29 A writ de consuetudinibus et seâ—â—icâ—js secta ad molendinum Quare impedit Quod permittat Curia Clauâ—enda Mesne and Warrantia cartae I. A Real Praecipe quod faciat is either to recover hereditaments or some real things that concern them II. Those that are to recover some hereditament demanding of ones own seisin are in the debet and solet III. But demanding of the ancestors seisin they are in the debet onely and then are in all respects as writs for the meer right IV. These are either in respect of a Seigniory or to recover some other hereditament V. In respect of a Seigniorie as a writ de consuetudinibus servitiis and a secta ad molendinum VI. A writ De consuetudinibus serviciis lieth for the Lord that hath an estate for life or a greater estate in the Seigniory and is deforced of his services VII Secta ad molendinum lieth for the Lord when the tenants that hold of him by grinding their corn at his Mill withdraw their suit and grinde elswhere VIII Those that are to recover some other hereditament are a Quare impedit and a Quod permittat IX A Quare impedit lieth upon a disturbance where he or his ancestors or those from whom he claimeth having at any time before presented to a Church himself is now disturbed X. A Quod permittat lieth for one that hath common of pasture for his beasts being disturbed by a stranger so as he
of Court when one that hath agreed in the Kings Court to levie a fine is so feeble that he cannot travel XXXV The Cheif Justice of the Common Place may take the acknowledgment of a fine without any dedimus potestatem XXXVI Dedimus Potestatem de Atturnato faciendo for the Judges to admit an Atturney for one in a suit CHAP. 39. Improper Original Processe Prohibitorie I. PRohibitorie improper original writs are these that follow II. A Protection cum clausula nolumus to free ones possessions that nothing be taken against his will for the Kings businesse III. Parsons or other spirituall persons not to be charged to the payment of fifteens for goods in their possessions annexed to their Churches IV. Quod Clerici non elegantur in Officium Balivi for a Clerk not to be chosen an Officer for his lands V. A prohibition to forbid tenant in Dower or by courtesie of England or Guardian by Knight service oâ— in soccage to commit waste to the destruction of the Inheritance VI. A Quo minus for grantee of Estovers to restrain the grantor from committing waste so as he cannot haue estovers VII De exoneratione sectae for tenants by suit oâ— Court or other services that they be not distreined tâ— do the same for such time as they ought to hold the land discharged VIII De exonerando pro rata to discharge the tenaâ—â— of parcel of the Land according to the rate of hiâ— land when he is lawfully distreined for all the rent and services IX De essendo quieto de Tholonio to Officers not tâ— grieve spiritual persons and others that ought to be quit of paying of Toll Murage Pannage Pontage c X. De non ponendo in Juratis to discharge Peers oâ— the Realm and other persons priviledged from being of Juries unlesse their presence be for any speciall cause necessary XI Ne exeas regnum to the party himself to inhibit him from going into forreign parts without the Kings license CHAP. 40. The Count and Pleading I. THus far the beginning of a suit the Proceeding followes which hath two parts The Count and the Pleading II. A condition annexed to an estate of freehold cannot be alleadged in Count or pleading unless it be by Deed. III. The Count is a larger declaration of the substance of the original writ and therefore is usually termed Declaration IV. In reall actions which are in the right the demandant must alledge the taking of the-profits called Esplees in the declaration V. In stead of the Count a plaint shall be made in Assizes of novel disseisin and in writs of Dower a demand VI. Pleading is the parties debating of the suit VII Every plea must be offered to be proved true by saying in the plea Et hoc paratus esse verificare and this is termed an averment VIII An advantage of a matter which cannot be pleaded shall be saved by protesting not acknowledging it to be true although the matter pleaded passe against him IX Pleas are either of the defendant when he is first brought in to answer or the mutual pleas of both X. In a joynt action against two or more one of them appearing shall not answer till the other come in to answer or the suit be finished against him as by death outlawry c. XI An action by or against an Infant as heir shall not proceed till his full age unlesse it be apparant that by proceeding he cannot be prejudiced XII But in a writ of Dower an Infant heir shall not have his age XIII The defendants first pleas are dilatory or to the Action XIV Dilatory which are before any plea in Bar. XV. When an action is brought against many they must joyn in the plea if they inrend to plead these dilatories XVI Dilatory Pleas are exceptions or forein advantages XVII Exceptions are dilatories grounded upon the matter it self of the suit and are in disability or abatement XVIII Those in disability are to the jurisdiction or persoâ— both which must be before the Count. XIX To the jurisdiction when it is alledged that the Court ought not to hold plea of it XX. To the person when it is alledged that the Plaintiffe ought not to be answered as if he be outlawed excommunicated c. XXI But in case of excommunication the suit shall be put without day onely till he be absolved XXII Those in abatement are for any fault in the first matter of the suit XXIII For this cause the defendant may have Oyâ—â— of any thing tendred by the Plaintiffe and not being parcel of the Record as of the writ condition c. XXIV Pleas in abatement are to the Count first and then to the writ XXV Amongst Pleas to the writ exceptions thaâ— arise upon the view of the writ are to be pleaded before those that are forein as non-tenure several tenancy c. XXVI Pleas to the Count are for insufficiencie variance from the writ c. XXVII Pleas to the writ are for default of forâ— false Latine c. XXVIII By waging of law for non-summons in a praecipe quod reddar the writ shall abate XXIX In Assize of novel disseisin and nusance and in appeals of felonie and Juris utrum the defendant may have many pleas in abatement xxx The writ abating for some cause that can not be imputed to the Plaintiffes folly himself bringing another with speed in the same Court against the same party shall have all advantages of the former anâ— this is called a writ purchased by Journeys accompt xxxi Forain advantages are delayes without excepion to any thing as in all actions Oyer of the writ c. In real actions view aid prayer and voucher XXXII View is in real actions of the thing demanded or of the land whence it cometh when it is so necessary as without view the defendant cannot wel answer XXXIII Ayde prayer is for the tenant for life to request him that hath the inheritance to help him to plead so must the Incumbent pray in aid of the patron and Ordinary XXXIV Voucher is the calling in of one that should warrant to answer the action XXXV Here the voucher loosing the tenant shall recover in value against him any hereditaments that he had at the time â—f voucher XXXVI Therefore voucher is in liew of another action where the original processe is Summons ad Warrantizandum and then a Grand Cape ad valentiam XXXVII If one be vouched within age it is a summons ad habendum visum first and being awarded of full age a summons ad warrantizandum and Grand Cape as before XXXVIII But if he be awarded within age the parol shall demurre until his full age XXXIX If the summons ad warrantizandum or habendum visum be not served then a sequatur sub suo periculo is to go forth and if the tenant cannot get that served he looseth his warranty for it is sub periculo of the tenant XL. But in exchanges the hereditaments are liable from
seisin and damages and the plaintif shall be punished by Imprisonment at the discretion of the Iustices In like manner also shall the Iustices proceed in case the defendants proof is by deeds and releases for if the plaintif purchased the Assize contrary to his own deed he shall be punisht as aforesaid Stat. 7. R. 1. 10. An Assize of novel disseisin for 〈◊〉 issuing out of Lands in divers Counties shall be takeâ— in confinio comitatus as is used for Common of Pasâ—â—â— in one County appendant to tenements in another Stat. 1. H 4. 8. A speciall Assize is maintainable by the disseisee for such lands as are granted by the King patent without title first found by inquest for thâ— King without suit to be made to the King in that behalfe And if the pattentee pray in Aide of the King a procedendo shall also be granted without suit Here 〈◊〉 the Assize passe for the disseises he shall recover 〈◊〉 damages against the patentee Stat. H. 4. 8. If any make forcible entry into land by way of maintenance the Chancellor of England shall grant a special Assize without suing to the King and if the disseisor shall be attainted thereof he shaâ— suffer one whole yeares imprisonment and restorâ— double damages to the party grieved Stat. 21. H. 8. 3. The plaintif in Assize may abridgâ— his plaint of any part whereunto a bar is pleaded without prejudice to the residue Merton 3. 20. H. 3. A man disseised recovering his seisin by Assize of novel disseisin or confession of the party and having the same delivered him by the Sherif if he be again disseised of the same tenements by the same disseisor he shall have a writ of redisseisin to command the Sherif taking with him the Keeper of the pleas of the Crown and other Knights in proper person to go to the land c. and by the first Iurors or other lawfull men to make inquiry Howbeit this must not be without speciall commandment of the King The redisseisor shall be imprisoned Marlbr 8 52. H. 3 And not delivered without special command of the King and payment of a Fine Westm 2. 8. 13. E. 1. Writs of redisseisin must be inrolled in the Chancery and transcripts thereof shall be sent into the Exchequer Westm 2. 26. A writ of Redisseisin shall lie for them-that have recovered by default reddition or otherwise without recognition of assizes or Iuries The redisseisor shall answer double damages and not be reprevisable by common writ Rule 8. Westm 2. 24. 13. E. 1. Giveth an assize of nusance against him to whom the tenement is alienated after the nusance is made Stat. 6. R. 2. 3. The Plaintif if he will may have a writ of nusance in the nature of an Assise determinable before the Iustices or before the Iustices of Assize Rule 9. Magn. Cart. 12. Vide suprae Rule 2. Marlb 16. 52. H. 3. If the Lord will not render unto the heir the land when he comes to age without plea the heir shall recover his land by an Assize of Mortdancestor together with all his damages West 2. 4. 13 E. 1. If a woman haveing no right recover Dower against a Guardian the heir at full age shall have a Mortdancester aginst her Glocester 3. The heir shall have an Assize of Mortdancester if the tenant by eouttesie alien and leasâ— no Assets Glocester 6. All the heirs whereof one is Son oâ— Daughter Brother or Sister Nephew or Niece and the other in a further degree shall joyne in a Mortdancester Rule 10. Mag. Cart. 13. An Assize of Darrein presentment shall be alwayes taken before the Iustice of the Common place Rule 1â— Westm 2 24 13. E. 1. A writ of Juris utrâ—â— shall be granted to try whether free almes belong to one Church or another in case where they are transferred from one Church to another Rule 13. Stat. 31. H. 8 1. Iointenants and tenants in Common of an estate of Inheritance in their owne right or in the right of their wives in any Mannors Land c. may be compelled to make partition by writ de partitione facienda as Coparceners are compellable to do and afterwards shall have aid to deraigne the Warranty paramount and to recover pro rata as Coparceners after partition should Stat 32. H 8. 32. Iointenants and tenants in common that hold for life or years amongst themselves 〈◊〉 with others that have Inheritance or freehold in any Mannors lands c shall also be compelled to make partition by the said writ to be pursued upon their case Howbeit such partition shall not be prejudicial to any but the parties to such partition their executors and assignes CHAP. 31. Rule 3. STat. 9. E. 3. Stat. 1. 3. In a writ of debt brought against divers executors they shall have but one Essoine before appearance and another after appearance he or they that do first appeare in the Court at the grand distresse shall answer to the Plaintiffe and the plaintif if it passe for him shall have judgment and execution of the goods of the Testator against all named in the writ as well as if they had all pleaded Rule 7. Mag. Cart. 8. 9. H. 3. The pledges shall be free so long as the principal debtor is sufficient And they answering the debt shall have the lands and rents of the principall untill they be satisfied but note that this is meant of the Kings debtor Stat. 1 R. 2. 12. No Warden of the Fleet shall suffer any prisoner in execution to go out of prison by Mainprize Bail or Baston without making gree with the party unlesse by writ or other commandement of the King upon pain to lose his Office and the Creditor to have a writ of debt against him Stat. 23 H. 6. 10. Every Obligation taken by a Sheriff or his Ministers by colour of their office of any peâ—son in their Ward by course of Law shall be by the name of their office and upon condition that the prisoner appeared at the day and place mentioned in his Writ Bill or Warrant an Obligation in any other forme taken is void Stat. 32. H. 8 37. The Executors and Administrators of him that hath any rent or fee-farm in fee-simple fee-tail or for life shall have an Action of debt for the arrerages in the Testators life time against the tenants that should then have paid it or may distreine and make avowrie upon their matter in the lands so long as they remaine in the possession of the said tenant or of any claiming onely from him A husband seised of any such estate in any rent or fee-farm in his wives right shall after her death himself also his executors or administrators have the same remedy for arrerages due in her life So likewise of him his executors or administrators that hath a rent or fee-farme during anothers life and Cesty qui viâ— dye the same being unpaid Rule 9. Stat. 13. El. 4. The lands profits and hereditaments of
a writ of Dower and no Essoyn or protection allowable By the death of the party or one of the petty Jury the attaint shall not abate nor be deferred against the rest as long as two of the petty Jury shall live Every attaint shall be in the Kings Bench or Common place and the Nisi-prius granted upon the distresse by the discretion of the Justices Every of the petty Jury may appear and answer by attourney The Non-suit or release of one when their be diverse plaintiffs or defendants in an Attaint shall not prejudice Every one of the grand Jury must have 20 Marks apeice Land of freehold out of ancient demesne but if the value of the thing in suit be under the value of 40 l. then 5 Marks a year or 100 Marks worth of goods sufficeth For default of such sufficient Jurors within the same County a Tales shal be awarded unto the next Stat. 11. E. 6. 4. The plaintiffe shall recover Costs and Damages against the Juror or defendant that pleads a feigned plea in delay FINIS A SUMMARY OF THE COMMON LAW OF ENGLAND As it stood in force before it was altered by Statute or Acts of PARLIAMENT Extracted for the most part out of the French and English Copies of Sir HENRY FINCH Kt. his Learned Treatise of the LAW And digested into certain Tablets for the help and delight o such Students as affect METHOD By E. W. Methodus Memoriae Dux Fulcrum LONDON Printed Anno Salutis 1655. AN ADVERTISEMENT TO THE READER THE Science of the Common Law of England hath not onely been in former times but even at this day is accounted so Abstruse Intricate that it hath alwayes seemed an Impossibility to reduce it to method Howbeit our learned Author in his Treatise of the Law hath not only clothed it with a Logical method but with such an exact one as may be parallel'd with if not extolled above that of Wollebius for Theologie Ramus for Geometry Keekerman Alstedius and other modern Writers for Logick Ethicks Physicks politicks Mathematiques c. So as the Student having treasured up in his memory the Common places of Law held forth in these Tables together with their coherence and dependance one upon another may be thereby furnished in all the general necessary titles of Law whereunto he may aptly refer any Case he meets with especially having also before hand by perusing the Treatise at large acquainted himselfe with the Definitions Distributions affections Rules and Examples respectively belonging to ea h severall Title whereby he may more perfectly understand the nature of them Besides if the Text be not read with these Tablets he will meet with divers things in them which are now abrogated by Statute and so not law at this day as Sanctuaries which are now annulled by 21. Jac. 28. diverse Offences before Petty Treason now by statute made high Treason and the like All which is left to his industry and discretion the Scope and design of this Summary being only to shew him the Harmonicall frame of the Original common law before it was altered by statute Acts of Parliament and other Constitutions of State according to the caution before in the Title Page premised TABLE 1. Of the Common Law of England observe 1. The Circumstances viz. The Place where it is used viz. throughout the Realm of England divided into Counties Hundreds and Towns within which there are divers usage differing from the common Law called Customs The persons who are to use it and they are to be considered As one entire Body The King His Subjects Barons Commons As particular Persons Naturall persons as every man Bodies Politique At the Com. Law The King alone and by himself considered The Rector of a Church or Parson Grown of latter time Temporal as Major and Communalty c. Spirituall Regular as Abbot and Covent c. Secular as Bishop and Chapter c. 2. The parts See Tab 2. 3. The common Affection viz. action Tab. 2◠TABLE 2. The parts of the Common Law are two The One concerns Possessions whereof consider The General affections 1. To Possessions this is generall that they may pass by Grant Exchange Prescription 2. Sundry men possessing the same thing by purchase are Joynt Tenants who possesse by the same Title Tenants in common who possesse by severall Titles 3. A possession is either Restrictive upon Limitation which ceaseth upon doing or not doing of something Condition which is only defeasable upon the doing or not doing of something Absolute which is neither upon limitation or condition 4 Tab 3. The Species or severall kinds Tab. 4. The other the punishment of offence Tab. 12. TABLE 3. 4. Possessions are either in Possession viz. such as one doth enjoy Action touching which consider 1. How it ariseth that is in respect of a Right when wrong was done before Title when no wrong was done 2. The Rules which concern it 1. A thing in action cānot be granted but to him in possession that by Release which is the passing of the Grantors Interest Confirmation which is the ratifying of the Grantees possessions 2. The grant of a thing in action and of such things in possession as cannot pass by livery of the hand must be by Deed viz. Deed Pol which is the only deed of the Grantor Indenture which is the mutuall deed of both and makes an Estopel to both parties TABLE 4. The severall kinds of Possessions so a Pos is An Hereditament wherof consider The severall Estates viz. Particular viz. Uncertain At sufferance when after lawfull occupation he continueth possession without Authority At will According to the custom as a Copyholder At pleasure as a bare Tenant at will Certain which is also called a Term wherof consider The dependants Remainder which is the residue of an Estate at the same time appointed over Reversion which is the residue of an estate not at the same time appointed over These pass with Attornment The severall kinds For years For life In Deed after actual Seisin In Law before Entry For his own life For anothers life and these are Freehold Inheritance Tab. 5. The severall kinds Tab. 6. Chattel Tab. 11. TABLE 5. Inheritance whereof consider The estate called fee-simple which is Conditionall when an Hereditament is limitted to the heires of the body hither Frank-marriage may bee referred Absolute which is a Fee-simple to one and his heirs whatsoever The Incidents Dower whereby a woman hath the thirds in severalty Tenancy by the courtesie of England The diverse manners of possessing it viz. in Deed. Law TABLE 6. The severall kinds of an Hereditament and so it is Common as A Tenemēt which is a possession holden it is Land which is a Tenement in manuall occupation and here prescription hath no place An Advowson which is the Interest of presenting to a Church A bare Hereditament Tab. 7. Prerogative Tab. 10. TABLE 7 A bare Hereditament which concerns Land and so it is
Leviable by distresse as A Seigniory which is a Service whereby Land is holden and such Services are Common to all certain Estates Fealty Rent service Hither also may be referred Frankalmoigne and Divine Service Proper to Inheritance Generall Homage Suit of Court Particular whereby Lands are distinguished The Services themselves Soccage Knight-seâ—vice In the Lords life-time as reasonable Ayde After his death as Wardship and Releif A Rent charge which is a Rent with liberty to distrain upon the Grant or Reservation of a certain Rent to be issuing out of Land Such as cannot be distrained for Tab. 8. The persons Tab. 9. TABLE 8. A bare Hereditament concerning Land for which no distresse can be taken is Rent-seck which is a Rent without liberty to distrain Common which is a profit to be taken in anothers land whither also may be referred Estovers Houseboot c. Also a way over Land liberty to Fish Hunt draw water or the like TABLE 9. A bare Hereditament that concerns the person is Of the person himselfe as a Villaine By reason of the person viz. An Annuity which is a yearly Rent to be had of the person of the Grantor A Corody which is a portion for ones sustenance or cloathing An Office which is a duty of attendance upon a charge TABLE 10. A Prerogative hereditament which is derived from the Kings Prerogative and is termed a Franchise being a Royall priviledge in the hands of a Subject as Markets Fairs Toll and whatsoever liberties else which created at first by the Kings special Grant or of their own nature belonging to him are given to a common person to have an estate in Of this sort also are Execution and return of Writs forfeited Recognizances Fines Post-fines Issues Amerciaments and other Green wax money within such a Precinct or Liberty Also power there to make a Coroner Clerk of the Market and other Officers to have therein Treasure Trove Deodands Wreck of the Sea Waifes Estrayes the goods of Felons and outlawed persons Royall mines Royall Fish to keep a Leet to take Conusance of Fines to hold plea of debts and damages Sans summe and the like TABLE 11. A Chattel wherein their cannot be several Estates whereof consider The common Affection viz. That all ones own Chattels whether in possession or action as debts c. may be devised by Testament which is the appointment of an Executor to administer them for him after his death The severall kinds and so it is Reall as a Term for years or Wardship Personall to which divers things belong In generall Bailment which is the delivery of goods To keep when only the custody is committed to him and that is A simple bailment when he receiveth them to keep for another A Pledge when he receiveth them for another thing had of him at the time To employ as when the Bailee hath the things to use for anothers profit Contract which is a mutuall agreement for the very property of Personal things In particular viz. for the Interest of things uncertain as Accord which is an agrement of the parties themselves upon satisfaction executed Arbitrement which is an Award of satisfaction by others TABLE 12. Punishment of Offences which are Without force as Trespass upon the Case Common as Misuses when by wrong one is endamaged as by slander or the like amongst which serve Disturbance which is the hindring of that which belongeth to one to do Nusanee which is an annoyance done to ones Hereditament Deceit when the damage groweth by an undue sleight or the like Conspiracy to do one wrong or the like Offences in the nature of Trespasses upon the Case which are by the Kings Prerogative punishable like to them viz. by amerciament as Non-suit in an action Fault in the Original Writ he brings Or by the Sheriff in the return thereof making default when he should appear And whatsoever other Offences not being with force which offer no direct injury to a common person Reall wrong Tab. 13. Coupled with force Tab. 14. TABLE 13. A reall wroÌ„g is Discontinuance when one having an Estate Tail or Fee-simple in anothers right maketh a large Estate of the Land then he may Ouster when one is put out of his Free-hold Indeed as by Disseisin of Land when one is put or held out by a forcible Entry Detainer Rent as In every rent by Incloser Forstaller In rent service rent charge by Rescous Replevin In rent-charge rent-seck by denyer Usurpation when the Church becometh full by the presentment of a wrong Patron In Law as by Intrusion which is after the death of the Tenant for life Abatement which is after the death of one that had the Inheritance TABLE 14. Wrongs coupled with force and they are Not punishable by death Trespasses and they touch Possessions as in Goods which is the wrongfull taking of them with pretence of Title Land when it is done upon an actual possession thereof The person and so Trespasses are With preteÌ„ce of violence as Menaces which are threatning words of beating one or the like Assault which is an unlawfull setting upon ones person With violence indeed as False Imprisonment which is an unlawfull restraint of liberty Bodily hurts and they are Outward violencies Battery which is the wrongful beating of one Maime which is the wrongful spoyling of a member defensable in fight Rape which is the carnall abusing of a woman against her will Offences against the Publike Tab. 15. Punishable by death Tab. 19. TABLE 15. Offences against the publike termed Contempts may be committed either Against the King as 1. To disobey the Kings Command By his Writ By his Proclamation 2. Disobey any thing ordained by Statute Against the Common-wealth viz. against 1. The peace thereof as Riots Routs unlawfull Assemblies breach of the Peace and Good behaviour false news Barreting Evâ—s-dropping c. Also all Trespasses with force for which a man may be both indicted and prosecuted at Law by the Suit of the Party 2. The strengh as to send aide to the Kings Enemies to go beyond Sea without the Kings Licence c. 3. The Justice Tab. 16. 4. The Wealth Tab. 17. 5. The Passages Tab. 18. TABLE 16. 3. Publick Offences against the Justice of the Common-wealth as 1 Perverting of Justice as corrupt Judges who pervert Justice corrupt or negligent Officers Enditors corrupt Jurors Extortion Escapes negligent and voluntary c. 2 All force against the Justice of the Realm as Rescous of a Felon or others Affairs in disturbance of Justice to go armed in the Kings Palace To strike in Westminster Hall for which he shall loose his right hand so shall he that strikes a Juror in the presence of the Justices and be also committed to perpetuall Imprisonment 3. Conventicles which comprehend conspirators and Confederators Maintenance Champerty c. 4 Offences in favour of Malefactors as Misprisions of Treason or Felony which for Treason is perpetuall Imprisonment Theft-boot when a man receives his goods
from a Theef with purpose to favour and maintain him here the punishment is Ransom Imprisonment not assisting the Sheriff Constable or other Officer c. 5 Contempt of Justice as he that flies for Treason or Felony Hee that in case oâ— Treason or Felony tarries the Exigent He that suffers himself to be out-laâ—ed c. 6. Falsifying of Justice as Perjury Subornation Forgery Embracery all other Falshood in matter of Justice c. TABLE 17. 4. Publick Offences against the wealth of the Common-wealth and that may be In the course of Trade as 1. To transport the Commodities of the Realm without the Kings Licence and paying his Custome Fore-stallers Regradors and Ingrossers Monopolies Conspiracies of Merchants false Weights and Measures c. 2 Uttering corrupt Victualls 3. Usury and all Oppression Out of the course of Trade as Depopulation burning of Houses Barns c. TABLE 18. 5. Publike Offences against the Passages of the Common-wealth as Bridges Cawseys High-wayes or Streets broken down or digged up Unto which place may also be referred Common Nusances Purprestures c. Such Nusances any man may abate And as to Nusances there is a VVrit in the Register for any person that will sue when the VVayes Streets or Lanes of any Town City or Borough Corporate or the Suburbs thereof are full of Dirt Soil or the like whereby infection may be caused And this VVrit may be directed to the Mayor or the like to cause them to be cleansed and kept clean There is also another VVrit for removing a Leper to prevent Infection both which VVrits will come hereafter to be mentioned in their proper places TABLE 19. Wrongs or offences punishable by death termed also offences against the Crown are Fâ—lony which is Bare Felony where consider The offence it self which is single as Stealth which is the wrongfull taking of Goods without pretence of Title Man-slaughter Chance medley which is Man slaughter without former malice Murder which is Man slaughter upon former malice Mixt as Robery which is stealth from ones person by assault in the High-way Burglary which is the night breaking of a house with an intent to steale or kill though nothing be stolne or any body killed Other publike Offences occasioned thereby as breaking of Prison wilfull escape of a Felon c. Petty Treason Tab. 20. High Treason Tab. 21. TABLE 20. Petty treason the punishment whereof is burning and it is Generall against mortall Creatures Petty Treason properly so cal-called which is the killing of one to whom private obedience is due Sodomy which is a carnall copulation against nature against God Heresie which is an offence immediately bent against the Majesty of God Sorcery which is a consulting with Devils and containeth under it Conjuring Necromancy and the like More particular in respect of the Kings Prerogative as counterfeiting his Coyn Seals c. to acknowledge any forraign Potentate to bring false money into the Realm counterfeit to the money of England TABLE 21. High Treason which is an offence of the Crown directly bent against the State also to kill the Chancellour Treasurer a Justice of either Bench a Justice in Eyre of Assis oâ— Oyer and Teâ—miner being in their places and doing their Offices is High Treason TABLE 22. The common affection viz. Action whereof consider The places where it is transacted viz. in Courts of Record as The Parliament Courts that have ordinary jurisdiction and they are Generall whose jurisdiction extends throughout the Realm Circumstances as Place where they are holden viz. at Westminster Time when viz in the Term of Michaelmas Hillary Easter Trinity The severall kinds Chancery Kings Bench. Common place Exchequer Within some County Through the whole County The Sheriffs turn The Coroners Court Within Liberties as A Leet A Court of Pipowders Granted by the Kings Letters Patents Courts by the Kings Commissions Courts by Charter in Corporations c. Court Barons The Lord Of a Mannor Of an Hundred The Sheriffs called the County Court The Parts Tab 23. TABLE 23. The parts of an Action are The suit which hath 2. parts viz. The beginning of the suit which hath 2. parts The first matter of the suit For every man By Writ out of the Chancery which is Originall which concerns Common Pleas and so it is Reall whereof consider The Common affections as Tab. 24. The severaâ— kinds Ta. 25 Personall Tab. 31 Appeals Tab. 33. Commissionall Tab 34. By Plaint or Bill Tab. 35. For the King Tab. 36. The Originall Process Tab 37. The Proceeding Tab. 40. The Judgment Tab 46. TABLE 24. The common affections as Possessory to recover a Possession In himself descended from his Ancestor In the Right to recover a Possession mixt in the right In himself descended from his Ancestor TABLE 25. The severall kinds of a reall Originall Writ and so it is A Praecipe A Praecipe quod reddat A Plea of Land A Writ of Entry the severall kinds thereof will best appear if we consider Against whom it is brought viz. Against the first party In the degrees In the Per. In the Per and Cui How is grows viz. without wrong at the first Upon the determination of the first Estate viz. by reason of A particular estate ended Ad terminum qui preteriit Entry ad Communem Legem A Condition broken as Causa Matamonii praelocuti Upon disability of the person that made it Dum fuit infra aetatem Dum fuit non compos mentis Upon a wrong Tab. 26. A writ shewing the Demandants Title Tab. 27. Another reall praecipe quod reddat Tab. 28. A Praecipe quod faciat Tab. 29. A Si secerit tesecurum Tab. 30. TABLE 26. Upon a wrong viz. Upon a discontinuance For the recovery of a womans Inheritance or Free-hold after her husbands alienation and Death as Cui iâ— vita and for heâ— Heir a sur cui iâ— vita Divorce as a Câ— ante divorcium For the Successor of a Bishop or c. after the discontinuance of his Predecessor as a sine assensu capituli An Ouster Upon an Intrusion as a Writ of Intrusion for him in Reversion or Remainder Upon a Disseisin as a Writ of Entry in the Quibus being a Writ in the nature of 21 Assise TABLE 27. A Writ shewing the Demandants Title which is Possessorie as a Writ of Ayel after the death of the Grand-father or Grand-mother Besayell after the death of the great Grand-father or greaâ— Grand-mother Cosinage after the death of the great great Grand-father or great great Grand-mother c In the right A Writ of right in his nature as a Formedon in Remainder Reverter Writ of Escheat Writ of Dower unde nihil habet A Precipe in Capite for the meer right of Lands holden in chief TABLE 28. Another reall Praecipe quod reddat in respect of a Seigniory as A Writ of Right of Ward to recover the Wardship A Writ of Right for Disclaimer for the Lord to prove the Lands to be holden
of him when the Tenant in a Court of Record disclaimeth to hold of him TABLE 29. A reall Praecipe quod faciat which is either to recover an Heredittament and this is either In respect of a Seigniory A Writ de consuetudinibus servitiis Secta ad molendinum To recover some other Herediament A Quare Impedit A Quod permittat A Curia claudenda Some reall thing that concerns an Hereditament as A Writ of Covenant as to levie a Fine of Lands c. Writs in the nature of a Covenant reall A Writ of Mesne A Warrantia Cartae TABLE 30. A reall Si fecerit te securum An Assise Of his own possession as An Assise of Novell Dâ—seisin An Assise of Nusance Of his Ancestors Possession as an Asise of Mortdancestor Either of his own or his Ancestors posession as an Assise of Darrein presentment A Juris utrum for a Parson or Vicar upoâ— his Predecessors alienation Others Such as be between Privies in blood as A Partitione faâ—enda A Nuper obiit A Quo jure to try for Common TABLE 31. A personal Originall Writ is also A Praecipe A Praecipe quod reddat Debt and a Writ of Annuity Detinue A Praecipe quod faciat An Action oâ— Account An Action of Covenant A Si fecerit te securum Tab 32 TABLE 32. A personal si fecerit te securum which is Without force Where the peace is not broken 1 Rationabili parte bonorum 2. Valore Maritagii 3 VVrit or forfeiture of marriage 4 Intrusion of VVard 5 Ejectione custodiae 6 Quare ejecit infra terminum 7 Trespasses upon the Case not against the Peace Where the Peace is broken yet not Vi as An Action of Deceit An Action of Conspiracy With force An Action of Trespass Speciall Actions of Trespass as De parco fracto Rescous Ejectione firmae TABLE 33. An Appeal which concerneth life and is the parties private Action prosecuting also for the Crown in respect of a Felony and this is given only to the Heir of the party slain TABLE 34. A Commissionall Writ which is either Commissionary as A Writ of right Patent A Justiciis An assise of petty Nusance Admeasurement of Dower Admeasurement of Pasture A Nativo habendo A Rationabilibus divisis A Homine reâ—legiando A Replevin Also many of the Actions thâ—â— went before as Consueâ—â—â— nibus Servitiis Secta 〈◊〉 molendinum Quod permitâ—â— Mesne Dower Unde 〈◊〉 habet Annuity Debt Detinue Covenant Trespasâ— c to what summâ— soevâ—â— be brought and also deteâ—mined in the County by Jâ—stices Meer Commissions as Oyer and Terminer Association Si non omnes Ad quod damnum Perambulatione faciâ— de TABLE 35. In Courts that hold plea without original Writ the Suit may be by Plaint in matters that conceâ—â— Common pleas Bill in Pleas of the Crown aâ— Officers of any Court by pâ—â—viledge may sue or be 〈◊〉 there and not elsewhere by 〈◊〉 TABLE 36. Suits for the King are A Quo warranto for the trying of the right of Franchises As inquiry by a Jury which is an Office to entitle the King to som Possession wherof consider The severall wayes how it may be found viz. Virtute officii brevis Commissionis The severall Writs or Commissions used therein concerning a Wardship viz For finding of it Diem clausit extremum within the year after the â—enants death Mandamus after the year Devenerunt when the Ancestor dyed in Ward to the King For mending it Quae plura Melius Inquirendum Datum est nobis intelligi For discharge of it An Aetate probanda A Writ of Livery for Lands in Capite An Ouster le main for other Knight-service Lands How the party may be releived against it By Traverse or Monstrans de droit when the King is entitled by Office only By Petition when he is intitled by double matter of Record as when the Office finds an Attainder of Treason or the like Presentment or Indictment to find an Offence against the King and for penall Lawes an Information TABLE 37. The Originall Process which is Proper Single By the Possessions By the Land In all reall Praecipes quod reddat Summons iâ— Land Grand cape iâ— seise it into the Kings hands A Mortdancester juris utrum daâ—rein presentment Summons Re-summons upon default the Inquest awarded By the Goods as in Assises of noveâ— Disseisin Nusance Attachmeâ—â— by the defendants goods which hâ— shall lose if he appear not and up on default the Inquest awarded By the person in Mayhem Felony and Treason Cap. Exig Outlawry Mixt By the goods and lands In all other reall Actions and in all personal Actions except Trespas offences against the publike and also in all Justicies Summons bâ— the Goods Attachment Distress Infâ—nite and â—sues of the Land In all Trespasses upon the Case except Deceit and conspiracy and in all Offences in the nature of Trespasses upon the Case Attachment Distresâ— infinitâ— and iâ—sues By the goods and person as in Trespaâ—â— vi Deceit Conspiracy and Offence against the publike Attachment Dâ—stress infinite and upon nihil returne 3. Capias Exigent Outlawry Improper Tab. 38. TABLE 38. Improper which is not to bring any matter into Plea or solemn Action but only to do or leave undone something and in is Commandatorie as Dote assignanda Homagio capiendo Scutagio habendo De Corrodio habendo De Annua pensione hab De Libertatibus alloc De executione Judicii De restitutione Temporalium De securitate pacis De vi laica removenda Of cleansing Streets De excommunicato capiendo De excommunicato deliberando De leproso amovendo De cautione admittenda De haeretico comburendo De Coronatore exonerando De Coronatore eligendo De exoner viâ— forest De Electione viâ— forest A Writ for the Royall Assent to elect an Abbot De securitate invenienda All Dedimus potestatems de fine leuando de attornato faciendo c. Prohibitory Tab. 39. TABLE 39. Prohibitory as 1 A Protection cum clausula nolumus to free ones Possessions that nothing be taken against his will for the Kings business 2 To discharge Spirituall Persons of Fiâ—teens 3 Quod clerici non eligantur in Officium Bâ—livi c 4 To forbid Tenant in Dower by the Curtesie or Guardian by Knight service oâ— in Soccage to commit VVast to the destruction of the Inheritance 5 A Quo minus for Grantee of Estover to restrain the Grantors from committing VVast so as he cannot have his Estovers 6 De exoneratione sectae for Tenants by Suit of Court or other Services that they be not distrained to do the same for such tiâ—â— as they ought to hold the Land discharged 7 Dâ— deonerando pro rata to discharge the Tenant of parcell of the Land according 〈◊〉 the rate of his Land when he iâ— lawfullâ— distrained for all the Rent and Services 8. De essendo quieto de Thelonio 9. De non ponendo in Juratis 10. Ne exeas
that grow by specialties are to be answered before other duties and legacies to be last of all delivered X In these devises the Testators intent standing with the rules of Law shall be taken XI The Executor of an Executor is Executor to the fi st Testator XII If no Will be made the Ordinary shall administer all the Chattels that were in his possession XIII But whether any Will be made or no his wife and such children as are not advanced by him in his life shall have a part to their own use viz. one third of all after the debts paid to his wife and another third part to his children This seems to be the ancient Common Law by Mag. Charta cap. 18. See F. N Br. 122. l. XIV Chattels are real or personal XV. Real as terms for years and Wardship XVI Personall as Plate Jewels Gold Silver Implements of Houshould Cattel and all goods and movables whatsoever corn sown upon the ground c. XVII The owner-ship of a Chattel personal is termed a property which of wild beasts cannot be in any nor after they are made tame longer then they remain in ones possession XVIII Treasure in the earth and Treasure Trove or Coin being found is the Kings XIX Cattel also that stray into anothers land are the Kings after a year and a day if being proclaimed at the Market in two severall Towns next adjoyning the owner do not claim them XX. Goods wrecked are also his XXI The King being Tenant in Common of an intire Chattel personall shall have the whole XXII Goods that belong to an Alien enemy any body may seize to his own use XXIII The taking of goods by an Alien enemy in Battail devesteth the property from the owner if he come not before Sun-set to claim them XXIV Church-wardens are enabled to have goods to the behoof of the parish XXV To Chattels personal Bailment and Contract do belong XXVI Bailment is a delivery of goods in possession and is either to keep or to imploy XXVII To keep when onely the Custodie is committed to him and is a simple Bailment or pledge XXVIII A simple Bailment when he receiveth them to keep for another whether it be for the Bailer to re-deliver him again or for a stranger to bail them over to him XXIX A Pledge is when he received them in assurance for another thing had of him at the time XXX The Bailment of goods to imploy is when the Bailee hath the things themselves to use to anothers profit XXXI Contract is a mutuall agreement for the very property of personall things XXXII Here the duty growing upon it cannot be apportioned XXXIII Of this kinde of contracts are buying and selling borrowing and lending and such like XXXIV The sale of another mans goods in Market overt altereth the propertie if toll be paid for them XXXV Hither belong certain as it were Contracts in law though not arising from the special agreement of the parties as Trover and conversion c. XXXVI These are the things that belong to Chattels personal in generall for the interest of personal things uncertain Accord and Arbitrement lie XXXVII Accord is an agreement between the parties themselves upon a satisfaction executed XXXVII Arbitrement is an award of satifaction by others whom they choose to judge between them XXXIX The award of a personal Chattel altereth the property thereof CHAP. 12. Trespasse upon the Case I. WE have hitherto spoken of possessions being the first and hardest part of the law The other remaineth which ministreth justice in the punishment of offences II. An offence is the doing of any wrong and it is a wrong without force or to the which force is coupled III. In those of the first kinde the offender is to be amerced viz. to pay a petty sum of money to the King and if he be a Peer of the Realm then C. S. IV. The Kings wife shall never be amerced V. Offences without force are Trespasses upon the case or Real wrongs VI. Trespasse upon the case is such an offence whereby any thing is endamaged and it is a misuser or deceit and conspiracie VII Misuser when by meer wrong it is endammaged VIII Of this kinde there be many and those of divers sorts as if a man maliciously utter any false slander to the endangering of one in law IX The touching of him with some heinous crime X. The impairing his trade of life VI. If one having another mans goods convert them to his own use XII If a Sheriffe suffer one in execution for debt to go at large XIII If a Smith prick my horse or kill him in cure XIV If being committed to the Gaole the Gaoler of malice puts upon me so many Irons or otherwise useth me so hardly that I become lame thereby c XV. But two above the rest do here require more especial consideration viz. Disturbance and Nusance XVI Disturbance is the hindring of that which in right belongeth to one to do XVII Nusance is annoyance done to ones hereditament XVIII All manner of Nusances are to be removed and common nusances any man may pull down XIX Deceit is when the damage groweth by an under slight As if in play one win anothers money by false dice or if he that selleth any thing do upon the sale warrant it to be thus and thus whereby the other is deceived XX. Conspiracie is where two or more conspire to do one wrong or the like XXI There are certain other offences against the Law which are in the nature of trespasses upon the case and by the Kings prerogative punishable like to them XXII Of this sort are Nonsuit in an action fault in the Original writ or by the Sheriffe in the return of a writ making default when he should appear and whatsoever other offences not being with force and armes which offer no direct injury to a common person CHAP. 13. Discontinuance Disseisin Vsurpation Intrusion Abatement I. HItherto of Trespasses upon the case Aâ— reall wrong is that which medleth with the Free-hold otherwise then it ought II. A reall wrong is a discontinuance or an Ouster III. Discontinuance is when he that hath an estate Tail or a Fee-simple in an others right maketh a larger estate of the land then he may IV. Warrantie of an estate of Inheritance or for life descending upon him that ought to have such an estate maketh a discontinuance V. Discontinuance taketh away the entry of those that come to have title after the death of the discontinuer VI. If he whose entry is barred by a descent or discontinuance have the Free-hold cast upon him by a new title he shall be in of his ancient title which is termed a Remitter VII Ouster is when the Free-holder is put out VIII This Ouster is of a Free-hold in deed or in land IX Of the first sort are Disseisin and Usurpation X. Disseisin is the Ousting of him that hath free-hold in deed by putting or holding him out of the
land XI This may be also of a rent or other profit out of land by disturbing him in the means of comming to it as XII In every rent Encloser and Forestaller XIII Encloser is when the tenant incloseth the land so as he cannot come to distrain or demand it XIV Forestaller is when the tenant besetteth the way with force and armes upon his comming XV. Of this nature is the menacing of him when for doubt of some bodily hurt he dare not come XVI In a rent service and rent charge Rescous and Replevin XVII Rescous when either the party having distrained the distresse is rescued or being upon the land to distrain cannot be suffered to do it XVIII Replevin is when an action of Replevin is brought upon a distresse taken XIX In a rent charge and rent seck Denier XX. Denier is when the rent being demanded upon the land is not paid XXV Usurpation is when the Church becommeth full by the presentment of a wrong Paâ—ron and the Institution of the pattie presented by the Ordinary XXII But against the King Induction onely doth it XXIII Of the second sort are Intrusion and Abâ—tement being of a free-hold in Law XXIV Intrusion which is after the death of the tenant for life XXV Abatment which is after the death of one that hath the Inheritance CHAP. 14. Trespass Menaces Assault false Imprisonment Battery Mayhem Rape I. SUch is the nature of an Offence without force II. An Offence with force is a Trespasse or an Offence against the Crown III. Trespasse is a criminall Offence punishable by a Fine to the King IV. For this the party must be imprisoned untill he do compound V. Trespasses touch Possessions or the person VI. Possessions when the wrong is done in them namely in Goods or Lands VII Trespasse in Goods is the wrongfull taking of them with pretence of Title VIII And therefore such a Trespas altereth the property of the Goods IX Trespasse in Land is when the Trespass is done upon the actuall possession thereof X. Beasts and other Chattels may be distrained by him that hath damage by them XI Hither belongeth Ejectment when a Termer for years of Land is ousted XII Here the King having possession none can put him out XIII Trespasses to the person are with pretence of violence or violence in deed XIV Pretence of violence as Menaces and Assaults XV. Menaces are threatning words of beating one or such like through fear whereof ones businesse is foreslowed XVI Assault is an unlawfull setting upon ones person XVII Hither belong lying in wait besetting his Mansion-house and not suffering his Servants to go in and out c. XVIII Violence in deed is false-imprisonment or bodily hurt XIX False-imprisonment is an unlawfull restraint of liberty XX. Bodily hurts are either outward violencies only or Rape XXI Outward violencies onely are Battery and Mayhem XXII Battery is the wrongfull beating of one XXIII Mayhem is the wrongfull spoyling of a member defensive in fight XXIV Rape is the carnall abusing of a woman against her will CHAP. 15. Offences against the Peace I. BEsides these Offences being for the most part twixt party and party there are other Offences to the damage of the publike in the nature of â—respasses and are tearmed Contempts II. These Offences are punished not only by fine but sometimes by corporall pain and sometimes by losse of member III. As the Common-wealth is a body politick which consists of the King as the Head and of his Subjects as the Members thereof so are these Offences to be distributed IV Publike Offences against the King are to disobey the Kings Command by his Writ or Proclamation to disobey any thing ordained by Statute c. V. And therefore the Sherif that serves not the first Writ makes a contempt VI. Publike Offences to the body of the Common-wealth are first those which trench against the domesticall safety thereof as against the heart of the Common-wealth VII which safty consists in this that there be paâ—domi and threfore here the offences are Rebellions Insurrections Riots Routs unlawfull assemblies breach of the Peace and good behaviour false newes Barratrie Eves-dropping c. Also all trespasses with force which may be prosecuted by Indictment as well as by the suit of the party grieved VIII An unlawfull assembly is when above the number of two assemble together with purpose to do some unlawfull act IX Rout when they set forwards to do it X. Riot when they do it in deed XI In the second place come the offences that are against the strength of the Realme and the defence thereof against forraign enemies as against the hands and armes of the Common-wealth XII Of this sort are these to send victual or armour beyond sea in comfort and aid of the Kings enemies To go beyond sea without the Kings license whereby the King and the Realme may be enfeebled c. CHAP. 16. Against Justice I. THe third sort are offences against the justice of the Realm as against the thighes and legs thereof as II. Judges which delay or pervert Justice III. Officers Negligent or corrupt who do not execute their offices as they ought to do IV. Goalers who by fear of punishment cause their prisoners to become provers to accuse others or teach the Lay-people in their custodie to read for the salvation of their lives V. Enditors who give warning to Enditees whereby the Council of the King and the Justices is discovered VI. He that by negligence or voluntarily suffers one under arrest to go at large VII· And here if the arrest be for felonie such voluntary escape is felonie VIII Hither also all manner of extortion in Officers is to be referred IX A Juror that appears and is challenged and afterwards when he is found indifferent and is called to be sworn makes default He shall be fined to the value of his land by the year X. All force against the Justice of the Realm XI The breaking of Prison and here if it be by the party himself it is felonie XII Rescous when a stranger or the party himself disturbes the arresting of a felon or other XIII Affrayes in disturbance of Justice as XIV Such as come forcibly into the Kings Court in affray of the peace so as the Jurors dare not give their Verdict XV. Such as are evil people to beat the people of the Court Jurors of Enquest or any other XVI To go armed in the Kings palace XVII He that strikes a man in Westminster-hall shall lose his right hand XVIII He that strikes a Juror in the presence of the Justice shall have the same punishment and besides shall suffer perpetuall imprisonment XIX Conventicles which comprehend conspirators and confederators XX. Such as receive people to their avowment to maintain them right or wrong XXI Maintenance when a man maintains a suit in law XXII Champarty when he maintains it to have part of the thing sued for XXIII Offences in savour of malefactors as