if the laÌ„ds excede the yerely value of .xx. marks he must sue a specyal liuerie not a general therfore it makes no mater for the inquisitioÌ„ or office that the words of the statute wil beare it wel enough if there be but one office fouÌ„d But as to that it may be sayd that the meaning of the statute was not so for the kinge can neuer be fulli eÌ„formed of his title vnlesse ther be an office fouÌ„d in euery shere also by finding of seueral offices one record may be better for the kinge then an other whereof his grace may take auaÌ„tage for the best shal be takeÌ„ for the kinge Thus it appereth by statut how that of landes aboue the yereli value of vli inquisicioÌ„ must be made and an office found after the death of the kinges tenant be fore liuerie can be had and that must be by a writ of dieÌ„ clau sit extremum for that is the proper writ that is to be sued for that purpose if any sute be made within the yeare after the kinges tenants death or a special commission in the nature of the writ of diem clausit For vpon a general coÌ„missioÌ„ to enquire generally of all wards no perticular person can haue liuere And if he tarry till after the yere then he caÌ„not pursue any of these but for his remedie must sue a writ called Mandamus or a commission in nature of that writ and therupon to cause an office to be fouÌ„d and so to haue liuerie But if an office be once found by diem clausit and the heier dieth in the kinges ward his heir must sue Deuenerunt no Mandamus although it be after the yere of the death of him that dyed in ward and so is the rule in the register Sumetymes it happeneth that after deliuerie of the writ or commission and before office found theschetor dyeth or is remoued froÌ„ his office in which case then the proces that is awarded to his successor is a writ called Datur nobis intelligi but if office be fouÌ„d before his death or remouing which office is not returned then shall therbe a certiorari awarded to his executors to returne the same For it is a mater of record as sone as the iurrors haue put their seales vnto it notwtstanding it be not returned And note the thawardig of this writ of diem clausit or special coÌ„missioÌ„ is peremptorie to him the sueth for it For if he lese it or be taken froÌ„ him with force he gettes no moe writs or coÌ„missioÌ„s for the lands in that couÌ„tie and this appereth in the new Natura breuiuÌ„ fo 2â—â— Howbeit in 14. E. 4 it is touched by the waye that in such cases he should haue a new writ H. 14. E. 4. so 5. ideo quere But after office ones fouÌ„d by a dieÌ„ clausit or specyal commissioÌ„ as well the kinge partie therby are bouÌ„d as euery other straÌ„ger for somuch laÌ„des as are comprised within the office and neither the kinge ne that partie nor any other shal haue any moe writs or coÌ„missioÌ„s to enquire any further of these lands except it be in such cases as I shal hereafter recite for so the lawe shoulde neuer haue end but newe heires might be founde euery daye by office which were incoÌ„uenient and the king should not knowe to wheÌ„e to make liuerie this appereth .14 E. 4. and 2. et 4. 14. E. 4. f. 5 2. H. 7. f. 2. 4. 4. H. 7. f. 13. H. 7. But where after office found it is surmised for the kinge that his highnes hath a better title than was found for him by the first office whether the mater surmised may stand with the mater fouÌ„d by the first office or not yea although it be mere coÌ„trariaÌ„t or repugnaÌ„t it is not material But in such cases a new writ or coÌ„missioÌ„ shal be awarded As take the case to bee this By the first office it is found the kinges tenaunt in chiefe dyed seised his heir wtin age where in dede hee dyed without heir so that therby the lands ought to haue escheted to the kinge or that he was tenaÌ„t in taile dyed without issue of his body wherby the lands ought to haue reuerted vntoo the kinge in these cases the court shal awarde a new writ or coÌ„missioÌ„ for the kinge Like law is it where the daughter is fouÌ„d heir by office afterward the sonne is borne or where ther is but one daughter found heire by office where there ought to haue ben two fouÌ„d heires or if by the first office one is fouÌ„d heire of ful age which is not heir in dede but an other is heir which is within age In all these cases ther shal be a new writ or coÌ„missioÌ„ awarded Causa qua supra 14. E. 4. f. 5 4. H. 7. f. 13. as it may appere .14 E 4. et 4. H. 7. 12. R. 2 et 30. li. ass yea and a more stroÌ„ger case as it should appere in the new Natura breuium fo 2â—â— fo 2â—2 et f 295. that is to say where the kinge was to haue no benefit at all more then he had by the first office and yet a newe commission was awarded and therfore the case was there the second brother was founde heir by the first office of ful age now the eldest had a commission being also of full age to finde him heir and thervpon had his liuery So is it where 2. be fouÌ„d daughters and heirs to one maÌ„ of certain laÌ„ds where in dede parcel of the said land was geuen to one of the said 2. daughters in fraÌ„k mariage now she that claimed the frank mariage had a specyall coÌ„mission to enquire of the saÌ„e and yet by that second office the king had no benefit ideo quere For this Natura breuiuÌ„ semeth to impugne the bokes before rehersed And like as he may pray a newe writ or coÌ„mission in the cases aboue rehersed before liuerie had euen so may he do in the like cases after liuere had if the liuerie be a general liuerie therupoÌ„ as sone as the title is found the king shal rescise but not wtout a Scire facias because the statut made at Lincoln hath so prouided as I shall open more fully when I come too that place and that in all these aforesayd cases a new diem clausit may be as wel awarded as a new coÌ„mission as it appereth titulo Trauser in Fitz. pl ' 28. anno 29. li. Asss ¶ What thing shal be in the king without office or seasure what not and where by an office only without any seasure or other proces the kinge shal be in possessioÌ„ and where not and where he shal be in possession without an office but not before a seasure and how the kinge may be eÌ„titled by any other recorde as well as by an office and where a man may enter as well vpon the kynges
in this case if ther bee an other record found that proueth the landes to be holden of the kinge in capite vppō these .ii. records together proces shal be made against the partie by Scire facias to come and shewe why he should not make a fine for the alienacion Like lawe it is where there is a record to proue that he that aliened is but tenant in taile of the kinges gift and he pretendinge to be tenant in fee simple doth purchace a licence of alienaciō and a lienethe and after dyethe without issue which deathe is founde by office but nothinge of his state taile or lycence appeareth in the sayde office yet vpon all these recordes laied together the king shal haue a Scire facias against the alienee to show why the land should not be seised in to his handes and his highnesse aunswered of the profites since the death of tenaunt in taile for when hee was but tenaunt in tayle it appearethe that the lycence was pourchased vpon false suggestyon and so voyde 40. li. assise in Fit ti Garde P. 1. and thenne the landes ought to reuerte to the kynge beecause hys reuercion coulde not bee discontinued And this maye yowe see 40. li. ass Then laste of all it is to bee seene whether the possession may bee taken from the kynge bye entrye or not And as to that yf the kynges possession bee by matter of recorde noe persone can dysseise hym or take the possession from hym for lyke as the kynge maye not take by gyfte from anye persone but by matter of recorde noe more maye the possession departe from hym but by matter of recorde and therefore his hyghnes cā not haue assise or Electione firme siue custodie lyke as a common persone maye yea and thoughe the entrie bee not immedyatlye vppon hym but vppon his committee or fermer yet it is noe disseisin to his hyghnesse as it appearethe 4. H 7. folio 2. M. 2. H. 4. M. 14. E. 4. folio 35. H. 6. in Fits titulo Suggestion P. 9. 2 M. 35. H. 6. folio 1 Bye the whiche sayde booke of 35. it also appearethe that if the kynge or hys commyttee bee cast oute of the wardeshyppe of the landes that the remedy is in thys manner that is to saye vppon suggestion thereof made in the Chauncerye there shal bee awarded a wrytte called Amoueas manum and that vppon a certaine payne whyche wrytte maye bee awarded onelye vppon this suggestion wythoute anye presentmente or enquirie and thys writte maye bee graunted to the committee as well beefore possession hadde of the warde as after for where the kynge was once possessed by office and grauntes it ouer yet this possession styll remaines for the kynge abydeth stil gardeyne notwythstandynge anye such graunt And therefore this writte of Amoueas sub pena lyethe for the grauntee or committee although the graunt be absque aliquo inde reddendo And if vppon this writte of Amoueas the defendant do not restore the thing then shall goe out againste him an attachement vpon which writ the defendant maye appeare and shewe his title which if it be founde agaynste him he shall then make restitucion by iugement and paye a fyne and aunswere the meane issues profites Thus dothe it appeare that the king cannot be disseised or eiected if his highnesse bee once seised by mater of recorde Otherwyse it is before his seisin bee by mater of recorde for if beefore office a straunger entre by title or without title this is no intrusion vpon the kinges possession but in this case the heire may haue Assise of mort dauncester againste the straunger if hee will whiche proues that by his entrie hee hath gottē bothe a freeholde and a fee simple But as sone as the office is founde and the eschetoure entreth this possession of the straunger whiche entred witheoute title is clerely vndone and the freeholde and the fee simple reuested in the heyre But if the entrie of the straunger weare by title and afterwarde office is founde and the kynge seisethe whether then it bee so or noe learne And it shoulde seeme to bee all one or els the kynges seisure is not good for howe can the kynge seise in an other bodyes ryghte if the ryghte weare taken awaye beefore by an entrie therefore it shoulde seeme eyther hys highnesse hathe noe title in that case to seise or els by his seisure the freeholde and the fee simple muste reuest in the heire But note that if the kynge wyll bye coloure of a recorde seyse an other mannes lande whiche recorde geeues him noe title in deede notwythestandynge anye suche seysure yet hee that hathe righte maye entre vppon the kynge and bye his entrie reuestes agayn in himselfe bothe the freeholde and fee simple as where it is foūd the kynges tenaunte dyed seysed but of an estate for terme of lyfe the reuersion to an other and thys notwythestandynge the kynge seisethe in this case if hee in the reuersion entre vppon the kynge this is a good entrie and therefore the case was hee made a feffement after his entrie and it was thoughte to be a good feffemēt Like law is it where the kynge is entitled but onelye to the profites as vppon an vtlagarie in a parsonall action or vpon the conuiction of a clerke in these cases if the partie entre and make a feffemēt or if a straunger that hathe title to entre do entre hee dyschargeth the kynge of hys interest and of these maters Trauers 12. Assise 156. you shal find bokes 8. H. 4. f. 16. 21. E. 3. f 1. 3 H. 7. 10. E. 3. 27. ass P 15. 9. H. 6. f. 20. 21. H. 7. f. 7. Enterpleder SOmetyme it happenethe that by two seuerall offices founde in one countie seuerall parsones be seuerallye founde heires to one man wherebye forasmuche as the kinge is brought in doubt to whiche of them his hyghnesse maye make liuerie they therefore muste firste enterplede and when by enterpleder the priuitie of the bloode is tried beetweene them then his highnesse oughte to make the liuerye to him that is tryed to bee the nexte heire of him that dyed As for an example by one Diem clausit or specyall commission in one countie one is founde heire to hym that dyed the kyngs tenant and of full age and by an other Diem clausit or speciall commissiō in the same countie one other is founde heire also to hym that dyed and within age in this case the heire that was firste founde shal haue a Scire facias in the chauncerie against hym or her that was last foūd heire to come shew why liuerie should not be made vnto hym that last dyed seised thereof vppon whiche writte yf a Scire feci be returned and the partye defendaunt cometh not or yf he come and confesse that he hymselfe is not heire then the plaintife in the Scire facias shal haue hys lyuerie but if hee come
trauerser loffice ou auterment mre son droit et illeoques maunde deuaunt le roye a faire final discussion sauns attender auter maundement This statute speakes bothe of trauerse and Monstrance de droit disiunctiuely whereby a man may gather that if Monstraunce de droit were not by thorder of the common law as it is saide 13. E. 4. f. 8. that it is yet were it geeuen by this estatute And no booke that beares date before this statut can I find that treates any thing of Monstraunce de droit Wherfore without preiudice to anye mans oppinion mine oppinion is that it is geuen onely by this statute but whether it bee so or not so I doe not greatly force Let vs see what it is in what cases it lieth If the kinge bee entitled by office or other matter of recorde that is trauersable Howbeit there is no cause of trauerse for that the office or recorde is true in this case anye manne that hath right to the possession of the freeholde of this lande whiche in shewinge of his right is able to confesse this office and auoid it shal bee receyued if hee bee putte out of hys possession or greeued thereby to come into the Chauncerie and shewe his saide right which beinge there proued to be true iudgement shal bee geeuen that the kinges handes be amoued from the possession of the saide landes with the meane issues and proftes to be restored vnto the party that sueth the said Monstraunce de droit As for an example it is founde by office that the kinges tenaunt by knightes seruice in chiefe dyed seised of certeine landes whiche are descended to his heir being within age where in dede in his life time I recouered this land against him and suing no execution suffred him to dye seised therof now vpon this office returned into the Chauncerie shall I come shewe my right that is to saye this recouere and auerre that this lande founde by office is the lande that I recouered or parcell thereof which being so proued and tried I shall haue an Ouster le maine Like law it is if the kings tenaunt disseised me of those landes and I made my continuall claime or that I had title to enter for condicion broken into the saide landes in the life of the kinges tenaunt and I entred and after was disseised by him But quere if I did not enter in his life whether now I may bee holpen by a Monstraunce de droit vppon the kinges possession And me thinkes not because I haue noe righte in that case till I enter for vntill that time the right continueth still in hym so that the kinge then hath a right ere I haue a right which ought too bee preferred and take place since it is but for a tyme before myne And for these cases see the booke in .3 H 7. fo 2. But if the king bee entitled by matter of worde not trauersable as if he be entytled by double matter of record in this case I can not haue my Monstraunce de droit no more than I can haue in the like case of Trauerse vnlesse my title be founde by one of the saide recordes As take the case to bee It is founde by office that one suche that holdeth of the kinge disseised mee and then committed a felonye vppon whome I entred after whiche entrie the saide tenaunt was attainted of the felonye in this case I shal haue the lande out of the kings hands by a Monstrance de droit causa qua supra And yet the kinges tytle is here by a record and not trauersable that is to saye thatteinder But what than My tytle is also founde by office and appeareth by matter of recorde M. 3. E. 4. 26 A. 4. H. 7. 6 whych beynge proued true doth clearelye auoide the kyngs possession and that is the reason I shall be receiued in thys case to a Monstraunce de droit as appeareth in .3 Edward 4. And therewith agreeth the booke 4. Henry 7. where kyng Richard the thirde was attainted of Treason by act of Parliament and found by office that he was seised of certeine land cometh one B. and saith that in the saide Parliament it was enacted that an atteinder of treason had against the father of the saide B. shoulde bee auoided and adnulled and hee restored to his landes and that these lands cōprised in the office were in the hands of the said king R. by attainder of his father aiudged that vpon this Monstraunce de droit the party should haue restituciō because his right appered by mater of record Like law is it wher it is found by office that such a one is attainted of felony is seised of such landes which are holden of the king nowe he that hath cause to sue his Monstraunce de droit can not be admitted therunto by reason of these two records Howbeeit if it bee so that there is noe suche attainder in deede then may the party that would sue a Monstraunce de droit saye that there is no suche recorde of attainder which beeinge founde true hee shal be receiued to his Monstraunce de droit as appeareth in the saide booke .4 H. 7. For nowe is there no recorde against him but onelye the office and notwithstandinge that by thoffice thattaindour is founde yet this fyndinge makes nothinge for the kinge if it bee vntrue For the iurie can neuer finde a matter of recorde and if they doe it is to little purpose for the recorde is euer triable by it selfe and if there bee suche a recorde it will appeare thoughe they fynde it not and if there bee none the finding of it is voide This may you see that a Monstrance de droit lyeth sometimes althoughe the kynge bee entytled by double matter of recorde if it so bee that the parties tytle appeare by matter of recorde or else it lyethe not M 14. E. 4. f. 1. 7 And yet Choke Littleton and Nedham helde oppinion in .14 E. 4. that if it bee founde before theschetour that one was tenant in taile of certeine landes holden of the kinge the remaynder to another in fee and that hee in the remainder is outlawed of felonye and that tenaunt in taile is dead without issue where in dede he beinge tenant in taile before the statute De donis condicionalibus after that hee hadde issue enfeffed one B. in this case the saide B. shall shewe this matter and that the vtlagarie was after the feffement made and so haue the landes out of the kinges handes by a Monstraunce de droit But it shoulde seeme their oppinion is againste the lawe and the bookes beefore rehersed vnlesse this feffement were founde by office Peticion .12 Trauers .7 because it appearethe that the kinge in this case is entytled by double matter of recorde And note that where the kinge is entitled but by office alone there the partye maye haue his Monstraunce de droit althoughe his title bee
firste chapter Also Britton an other old wryter which wrote hys booke in king Edwarde the first name sayeth des heirs nequedent si ils y eyent ascuns qui auncestre morust seisie de ascun terre tenu de nous en chief des aunciens demeanes de nostre corone volons auer les gardes de touts les terres dōt appent que deiuent descend a ceux heirs come lour heritage ouesque touts les blees en teles terres troues maintefoits de qui fees que les terres sont Britton here not only agreeth with the other but also geueth the king the corne growing vpon the groundes which the kinges tenant holdeth at the tyme of his death A. 21. H. 3. in Fitz. ti Prerogat ' P. 26. P. 25. Also in the great Abridgement of Fitzherbert you shal find in the time of king Henry the thirde written in this manner Nota quod lex angliae et consuetudo eiusdē est quod a quibuscunque aliquis feoffatus fuerit dum tamen a domino Rege aliquo tempore fcoffatus fuerit per tenementum qd ' tenetur per seruic̄ militare quod dn̄s rex habebit custod ' omniū terrar ' et tenemētorū tā de feoffamēto aliorū quā de feoffamento proprio Which text if a man will any thing wrest he may make the kinges prerogatiue more lyberall then is made or declared by this statute or any other the writters before remembred for it extendes to any landes holden of the king by knightes seruice whether they be holden of the king in capite or not but forasmuche as the saide other writers haue written so plainlye in this matter we will stand to them and extende the prerogatiue no further howbeit as I saide all those writters being so longe before the making of this statute doe plainly argue proue that this statute dothe but confirme and declare that that was the commen law before M 15. E 4.12 vnles we woulde doubt of the time of the making thereof as Littleton doth in 15. E. 4. but without doubt it was made in king Edward the secondes time and that plainlye appeareth by the woordes contayned in the third chapter of this prerogatiue which be these Et illa voluntas tempore Regis H. patris Regis E. estimari consueuit c. Which woordes were not written in kinge Edward the first daies for then the woords had bene patris nostri so that as I thinke it is not to bee doubted but that it was written in the time aboue limitted and expressed Then go wee to thexposicion of this first chapiter of prerogatiue The woords be dominus rex habebit custodiam omnium terrarum eorum qui de ipso tenent in capite per seruicium militare These woordes go generally to all the kings tenauntes that is to saye aswell to his tenantes for terme of lyfe as to his tenauntes of estate of enheritaunce if it so be that he that is in the reuercion haue the saide reuercion by discent and be heir vnto the said tenant for terme of life not forcing whether he haue the reuercion by discent from the said tenaunt for terme of life or else from any other ancestour as take the case to be this a man holdeth no landes of the kinge but onely as tenaunt by the curtesie and those landes are holden in chiefe by knightes seruice the saide tenaunt by the curtesie is seased in his demesne as of fee of landes holden of other lordes and dieth the landes holden of other discend vnto him in the reuertion whiche is indede nexte heire vnto the said tenant by the curtesie in this case the king shall not onely haue the wardship of the landes that were holden by the curtesie if the saide heire be wythin age but also the landes holden of other by vertue of thys prerogatiue And if the saide heire were of full age at the tyme of the deathe of the saide tenaunt by the curtesie the king shall haue primer season both of the one lande and of the other as it appeareth in the newe Natura breuiū fo 298. Like lawe is it if a woman be indowed of lands holden in capite and is seased in fee simple of landes holden of other and dieth seased and they discende vnto the heire whiche is in the reuercion in this case the kinge shal haue bothe these landes by vertue of this prerogatiue like as hee shall haue in the other case before 26. li. ass p. 57 and that maye you see in 26. li. ass for in bothe these cases they bee the kinges tenauntes and hold of him by knightes seruice in capite for tenaunt en dower in the kinges cas holdeth not of the heire but onelye of the kinge as it shal appeare more fully hereafter But if he in the reuercion bee not heire of the landes holden of other in the cases aboue remēbred otherwise it is But what if he in the reuercion haue the same reuercion by purchace and not by discent whether shall the king then haue his prerogatiue or not and as to that it shoulde seeme by the newe Natura breuium fo 259. that the kinge shall haue his prerogatiue in that case also for there the remainder was to the heire and to his wife and to the heires of theire two bodyes lawfully begotten and the husbande in the remainder dyd sue liuere howbeit against the law as me semeth ideo quere but if the case in the saide newe Natura breuium had been that landes holden by knightes seruice in capite had beene geuen to one for terme of his lyfe the remainder ouer in fee which parson in the remainder hath issue and dyeth and tenaunt for terme of lyfe holdeth landes of other Lordes and dyeth whiche discende to the issue that is in the remainder there it might be saide that the king shoulde haue prerogatiue in the whole like as he had in the cases before remembred of tenaunt by the curtesie and tenant in dower for like reason will serue in the one case that serueth in the other The woordes of the Statut be further de quibus ips◠tenētes fuerunt seisiti in dominico suo vt de feodo die quo obierunt de quocunque tenuerint These woordes rather apperteigne vntoo the landes holden of other then too the Landes holden of the Kinge in Capite as it shoulde appeare by the cases beefore remembred and then by these woordes the kinges tenaunt in his life tyme must himselfe bee seased either in possession or reuercion of those landes that hee holdeth of a common person that shall dyscende vnto his heire For if hee were neuer seased thereof but they discende vnto his heire from some other auncestor the king shall not haue his prerogatiue in them as appeareth in 15. 15. E. 4. f. 10. E. 4. but whether the kinges tenaunt were seased of them in his owne right or in another bodyes right it maketh no difference
as take the case he were seased of them but in right of his wife and hath issue and dyeth his issue is in the kinges warde for the lande that his father helde in Capite and afterwarde the wife dyeth the issue beynge still in warde the Kynge shall haue Prerogatiue in these landes of the wyfe also because the husband was seased of them in his demeane as of fee the daye of his deathe and so wythin the compasse of this statute And this case may you see in M. 13. H. 4. 6. 13. H. 4. and note that notwithstandinge this statute speaketh but of landes yet seruice are to bee taken by the equitie of the same as it is plainlye proued by the woordes of Diem clausit extremum which saieth Quantum terre tenet de nobis aut de aliis tam in dominico quam in seruicio So that if one holde of the kinges tenaunt by certeine seruices the King shal haue the seruices in warde for they be in nature and place of the lande that is holden and so shall it bee supposed And therefore when the kinge hath those seruices in warde and the tenaunt that holdeth by those seruices diâ—th his heire within age if the saide seruices were knightes seruice the Kinge shall haue warde by reason of wardshippe But yet by that noe prerogatiue in the other landes of the second warde whiche are holden of the other Lordes M. 6. R. 2. in Fitz. ti Gard P. 105. as it may appeare in 6. R. 2. For the kinges tenant was neuer seased of those other landes ne yet of the seruice that they were holden by and so without the compasse of this prerogatiue Like lawe it is where the Kinge hath the temporaltie of a bishop in his custody duringe the tyme the Sea is vacant and one that holdeth of those temporalties by knightes seruice dieth his heir wtin age the king shal haue the wardship of him the reason of it is because the king hath the wardship of the teÌ„poralties by reasoÌ„ wherof this wardship cometh whiche temporalties the kinge hath in warde by the order of the common lawe in lure corone For they bee barronies which can be holden of none other then of the kinge in capite and then by the common lawe I take it he were no better then a common person yet his highnes must haue the wardshippe of them that holde of those temporalties by knightes seruice if they falle duringe the time the saied temporalties be in his hands with such landes as they holde of those temporalties but not with such lands as theye holde of other and than must the heire thereof when he coÌ„meth to his ful age sue a liuere as shalmore plainly appeare when we come to the thirde chapiter of this prerogatiue The wordes of the statute before resited are in dominico suo this woorde demeane is not here taken to bee the verie possession or takyng of the profits for if the kinges tenauÌ„t dye seased but of a reuercion or of a remaynder in landes holden of a common person and duringe the minoritye of his sonne the particuler tenaunte dyethe the kynge this notwithstanding shall haue this lande in warde as he hath the rest as it may appeare 22. H. 6.15 E. 4. 46. E. â— M. 22. H. 6. f 20 M. 15. E. 4. f. 10. P. 46. E. 3. fo 10. So it is if the kinges tenaunt dye seased of an aduowson appendaunt to landes holden of a common person The woordes be further die quo obierunt and therefore if the kinges tenaunt dye seased of Landes holden of a commen persone and a straunger abbatethe yet the heire shal bee in warde and the kyng maye entre and so is it if the heire recouer by assise of nâ—ortdauncestre as it appeareth in the newe Natura breuium fol. 2â—â— T. 12. R. 2. But take the case to bee that the kinges tenaunte dye not seased but is disseised and dyethe whether in this case the kynge maye haue prerogatyue or not and it semethe that hee may for in all suche cases where the heire hath a right of entre the kynge may entre in name of the heire and holde it afterwarde in warde but yf the heire haue but a title of entre or ryghte of accion it seemethe to be otherwise howebeit looke for those maâ—â—ers in the sayde booke of 15. E. 4. 12. H. 7. 18. Edwardi tertii lib. ass P. 18. T. 12. H. 7. fo 17. Where it is adiudged that of landes holden of the kynge in chiefe the kynge as in ryghte of hys warde myghte sease by a Scire facias vppon a tytle of entre And note also that there is somewhat more to bee vnderstanden beare thenne is wrytten or expressed that is to saye that the saide Landes muste discende too the kynges warde for notwythestandynge the kynges tenaunt weare seased in hys demeane as of fee daye of hys deathe in landes holden of a commen persone yet if the same after hys deathe doe not discende to the kynges warde but to an other heire M. 12. E. 4. f. 18. the kynge shall not haue prerogatiue in them as it appearethe in 12. Ed. 4. The woordes of the statut bee also De quocunque tenuerunt Put case the kinges tenaunte is seased of certayne thynges whyche neyther are holden of the kynge nor yet of anye other whether shall the kyng haue them in warde or not as Merket warrâ—n A. 3. H. 7. f. 4 21. H. 6. f. 12. 46. E. 3. f. 10. 15. E. 4. f. 12. Rente Secke or aduowson en grosse and as it should appeare in 46. E. 3. 21. H. 6. the kynge cannot haue them in warde and yet in 15. Ed. 4. soome holde oppinion to the contrarye therefore inquere and learne what the lawe wil in these cases The woordes of the statute bee Per huiusmodi seruicium that is to saye by lyke seruice Bye these woordes the landes that are holden of other muste bee holden allso by knyghtes seruice or els the statute extendes not to them and yet the lawe is taken to the contrarye for yf the lands holden of other bee holden but in socage or free burgage the kynge shal haue prerogatiue in them as it appearethe in P. 24. E. 3. f. 13. T. 9. H. 3. ti Prerogatiue in fits â— 25. 24. E. 3. for this statute is but a confirmacion of the common lawe and therefore shall bee taken by equities and namelye when the lawe was so taken in 9. H. 3 whiche was longe time beefore the makyng of this statut Howebeit Bracton and Britton dothe extende this prerogatiue no further then to landes holden of other by knightes seruice therefore enquire for the cause and reason thereof Bracton li. primo de custod et releuiis Britton f. The woordes bee further Exceptis feodis archiepi cantuar ' c. This exception extendes not to the bodie wherefore the kynge shall holde that in warde
ne voilomus nous my de ceux qui deueignount sotes per ascun maladye Vpon these words of Britton I note .iij. things one is that the king shal not haue the custodie during theire liefes but duringe theire Ideocy the second notwithstanding the lande is in the kings handes yet the other lorde shall haue theire seignories which is by way of peticion as I take it and the thirde is that the other lorde shall not haue the wardshippe of the heire nor of his landes but onely the kynge whiche thiâ—de thingê by this statute of prerogatiue are not so plainelye set fourthe and also by this statute it appeares that the kynge shall haue the custodye of suche Ideottes durynge they re lyues for the woordes bee Et post mortem eorum reddat eam rectis heredibus and not beefore The manner howe the kynge shall come to his prerogatiue appeares by a booke case .16 Edwarde the thyrde 16. E. 3. in Fits ti Liuery P. 30. where Sharde sayes that when the kyng is enfourmed that there is suche an Ideotte hys highnes shall sende for hym and cause hym to bee broughte beefore hys chauncelloure or some other whom hee shall appoynte and yf by examinacion hee bee founde an Ideot yet his hyghenesse oughte not to sease his landes vntill suche tyme as hee bee founde an Ideot by office And in the newe Natura breuium folio 232. it appeares that the kinge appointes all this matter to theschetour or sherife bothe to examine and enquire in whiche sayde Natura breuium folio 229. it appears that this office when it is founde shal haue relacion a natiuitate to auoide al meane actes donne by the Ideot that is to saye his feffements or release but learne and enquire whether suche feffees shall bee put out by thoffice without anye Scire facias to bee awarded againste them M. 18. E 3. in Fits ti 30. Scire facias P. 10. et 106. In 18 .32 E. 3. a Scire facias was awarded in that case and learne allso whether the office shall haue relacion for the profites from the tyme of hys natiuitie or onelye from the findinge of thoffice Then to the exposicion the woordes bee Rex habebit custodiam terrarum fatuorum naturalium By these woordes it apperethe that he must bee a fole natural that is to saye a foole a natiuitate â–ª for yf he were once wyse and beecame a fole by chaÌ„ce or misfortun M. 18. E. 3. Fits ti Scire facias P. 10. the king shal not haue the custody of him and so it is agreed in .18 E. 3. And also in the newe Natura breuium fol. 2â—3 and the manner of the tryall of hym to bee a foole naturall appeares in the sayde Natura breuium folio 233. that is is to saye yf hee cannot tell to tweÌ„tye pence or tel his age or who was his father and mother or such like thinges whereby yt may appeare hee hathe no kynd of vnderstandinge in that that is eyther for hys profyte or dammage But if hee bee learned or apte to learne thenne is hee no Ideot as maister Fitsherbert there thinks M. 31. E. 3. ti sauer de defaulte P. 37. and Grene sayethe in .31 Edwarde the thirde That yf hee bee able to begette eyther sonne or doughter he is no foole naturall The woordes of the statute bee further Capiendo omnes exitus eorundem sine vasto et destruccione et inueniet eis necessaria sua By these woordes it appeareth that the kynge maye take the profetes to hys owne vse fyndynge them theire necessaries And therefore in the booke beefore of Tricesimo primo of Edwarde the thyrde the kynge dyd not lette the lande vnto one of the cosyns of the Ideot yeeldynge a rente butte these woordes findynge them necessaryes is not onelye mente to the Ideottes themselues but allso to all them that hange vpon them as they re wyfe chyldren and familye And allso by these woordes sine vasto destruccione M. 3. E. 2. in Fits ti Gard. P. 5. it appearethe the kynge is bounde to reparacions of theire landes and tenementes The woordes bee allso De cuiuscunque feodo terre ille fuerint By those woordes it shoulde seeme the kynge shoulde be preferred in thys tytle of Ideocye beefore anye other lords whyche myghte clayme the Ideot as hys warde howebeit learne what other menne thynke therein Et post mortem eorum reddat eam rectis heredibus Bye these woordes it shoulde appeare that the kynge shoulde saue the custodye durynge the lyfe of the Ideof and that than an Ouster le mayne in nature of a lyuerye shall bee suyd of the same oute of the kynges handes butte whether yt shall bee made wythe the yssues and profytes from the tyme of the Ideottes deathe or onelye butte from the time of the tender of the Oustere le mayne learne butte yf the landes that the kynge hadde so in custodye bee holden of hym in capite thenne notwythestandyng these wordes of the statute yet the kynge shall haue wardeshyppe prymer seisin and all other prerogatiues as yf hys tenaunte in chiefe hadde dyed seased thereof beynge noe Ideot as it maye appeere in the newe Natura breuium fol. 2â—6 And there it appeares folio 2â—2 allso that allthoughe the Ideot helde noe landes of the kyng yet a Diem clausit extremum shall bee awarded after hys deathe to enquire what landes hee dyed seased of of whom they are holden c. And it is to be noted that yf one be fouÌ„d Ideot by office before the king seaseth the lands the Ideot dies yet the kynge shall sease beecause of these woordes in the statute â— post mortem eorum reddat eam rectis heredibus whych his grace cannot do but vpon a seisure and thys appeares 18. M. 18. E. 3. in Fits ti Scire facias P. 10. Edwarde the thirde And note allso that if ther descende to an Ideot no possession in landes butte onelye a ryghte bee it righte of entre or title of entre or ryghte of accion the kynge shall not enter and haue the custodie of the same 1. H. 7. 15. as appeares in 1. Henrye the seuenth and yet if hys tenaunt of landes holden of hym by knyghtes seruice bee disseised and dyethe his heire within age the kynge shall enter and holde the same in warde and therfore learn what is the reason that shoulde make a difference in these cases The woordes be further Ita quod nullatenus per eosdem fatuos alienentur nec quod eorum heredes exheredentur Bye these woordes it appeareth the landes cannot bee aliened by the Ideot nor the heires disheryted and therefore if the Ideot make a feffement or release of his landes and that founde by office the kynge shall auoyde it as I haue beefore noted and so likewyse his heires after his deathe by force of these woordes of the statute And yet it appeares .31 E. 3. that a recouerie by
deathe of a man and this presented before the Coroner hee shall forfait all his goodes that hee hadde the daye of that presentment or at anye time since till hee bee acquited of the saide deathe And notwithstandynge that an enquest vppon hys arrainement doth afterwarde acquyte him Forfaiture 32. et 35. Coron 296. 344 and also fynde that hee did not flee yet his goddes remaine still forfait as it appeareth 22. lib. Assise p. 96. et 3. Edwarde the thirde Lyke law is it where one arrayned of felonye beefore iustices is founde not giltye of the felonye Howbeit it is founde that hee withdrewe himselfe for the saide felonye nowe shall hee forfaite his goodes but no profites of landes as hee shall doo in the other case where it is found before the Coroner For when the forfaiture shall haue no further relacion but to the daye of the presentment and not to the daye of the flyenge then when at the same daye hee is acquited of the felonye then is the kynges title gone as to the landes and so consequentlye gone as to the issues And this appeareth 3. Edwarde 3. Coron 344 Also there is an other maner of fleeynge for the whyche a manne shall forfait his goodes and that is where in appeale or enditement of felonye the partye that is appealed or endited will not appeare but suffer the exigent to be awarded against him hee thereby forfaiteth hys gooddes and the profites of hys landes whiche he hadde the daye of thexigent awarded or at anye tyme after And notwythstandinge that hee afterwardes happen to bee acquyted of the sayde felonye yet the forfaiture remaines For when hee tarrieth the awardynge of thexigent it appearethe of recorde that hee hath withdrawen hymselfe and thys you shall fynde in 22. lib. Ass pl. 81. and 41. li. Assise 41. Ass p. 18 Howbeit herein is there heede to bee taken lest there bee errour in the awardynge of the saide Exigent For if there bee hee shall then forfait nothinge as if the exigent bee awarded againste the accessorie beefore it bee awarded against the principall or beefore the principall bee attaynted or if an exigent bee awarded againste one that hathe a charter of pardone for the felony of elder date than is the awardynge of thexigent and hath founde suertye accordynge to the statute and the same retourned into the chancerye before thexigent awarded P 43 E. 3. â—â— 17 For in these cases he shall auoyde the forfaiture vppon the matter shewed Contrarye lawe it is if after the exigent awarded the appelle doe abate for insufficience or for that that hee that is outlawed was emprisoned meane betweene the awardynge of the exigent and the outlawrie pronounced For in that case if he reuerse the vtlarie yet his goodes remain still forfait Forfaiture .31 et .19 Howbeit if he were emprisoned at that time of the exigent awarded otherwise it is this appereth .19 E .3 and .30 H .6 Also it is to bee noted that one maye flee for felonye and yet hee shal forfait nothinge as where one is arrested for suspicion of felonye and escapes yet for thys hee shall not forfait his goodes if hee were not taken with the maner or at the sute of the partie or endited of the same as it appeareth .42 Coron 224. li. Ass Quere if hee bee endited afterwarde whether hee shall then forfait them or not Also an accessorie after the felonye committed shal forfait nothinge vppon a Fugam fecit Otherwise it is of accessories beefore the felonye committed Forfaitur 10 as it appeareth .4 H. 7. But he that withdraweth him selfe but for Petit larcenie shall forfayte his goodes Coron 406 as it appeareth .8 E. 2. tamen quere And note for a generall rule that the towneship where the goodes of felones or fugitiues bee founde shal alwaies aunswere the kinge of them and the shiriue of the issues and profites of the landes and therefore the towneship may seise them for the kinge For it is no plee for them to saye they were not deliuered vnto them 22. Ass p. 81. 11. H. 4. 39 And this appeareth in Fitzherbert in the title of Corone pl. 390. et p. 366. 300. 347. 290. 308. 22. and in the title of forfaiture pl. 32. But at what tyme the goods of a felone or fugitiue shal bee seised it is further to bee seene and howe the attainder shall haue relacion When it is founde by enquest beefore the coroners quod fugam fecit by and by the shiriue shall seise his lands intoo the kynges handes by woorde onelye without taking anye enquest for the same purpose and also shall seise all his goodes into the kinges handes and take an enquest as well of free menne as of villeines to apprise them and cause them prise to be enrolled to the coroners and to deliuer them to the towneship to make aunswere thereof to the kynge And this appereth 22. lib. ass P. 96. And herewith agreeth the statute of Coroners and also Britton fo 4. Where you shall see this matter set fourthe more fully And in .43 M. 43. E. 3. fo 21. it is sayde that the kinges minister may seise the goods of a feloÌ„ before attaiÌ„der if the partie finde suertie then he to leaue them in the custodie of the partie or els in the neighbours custodie For the sayd minister ought not to carrie them awaye with him T. 7. H. 4. fo 41. 7. H. 4. Hull sayeth that yf one bee endited of felonie yet till hee bee attaiÌ„ted his goods shal not be remoued out of his house but in the meane time shal be in his neighbours keapinge and he to be found of the same And in the Register there is a write quod tenÌ„ta et bona taliter capta videantur imbreuientur et saluo custodiantur per balliuum ipsius capti qui se curitatem regi inuenieÌ„t ei respodeÌ„d ' si c. saluis inde ipsi capto et familie sue necessariis quam diu fuerit in prisona And so is Britton fo 17. Howbeit now by the statut made in the first yere of kinge Richarde .3 the thirde ca. it is ordeined that none shall seise the goods of any person arrested or emprisoned before that they be attainted or that the goods bee otherwise forfaited vpoÌ„ peine to pay the double value thereof This statute extendeth not to any other but too such as be in prison For by the statute de proditionibus 25. E. 3. ca. 14. If one bee endited of felonie which is not emprisoned the sheriue at the second Cape shal seise his goods and yet they bee not at that time forfaited And also the statut of R. 3. doth not extend to landes but onely to goodes Then for the relacion as for the goodes it hath no relacion but onely from the daye that the forfaiture is presented or verdit geuen and therfore it is sayd in 33. E. 3. that if he sell
them before hee bee attainted the sale is goode Forfeture 30. 30. H. 6. f. 5 38 E. 3. fo 37. Corone 290. et 285. but for landes it hathe relacion to that daie of the felonic committed be it that the attainder bee by verdite or vtlarie as it appereth .38 E. 3. et 30. H. 6. or be it that he bee attainted without proces of law as in the cases aboue remeÌ„bred where he is killed in the fleing as appereth 3. E. 3. And note that if thattainder and the office found of his landes be both wtin the yere of the felonie first coÌ„mitted that it shal haue no relacion for that yeres profites otherwise it is if it be after the yere as it appereth 3. E. 3. This boke must be vnderstaÌ„de as I take it where the attainder the office be before any daye of paymeÌ„t within that yere The words of this chapiter be further Et si ipsi habeant liberuÌ„ tenÌ„tuÌ„ tunc illud statiÌ„ capietur in manum domini regis et rex habebit omnes exitus eiusdem per vnum annuÌ„ et vnum diem et tenementuÌ„ illud vastabitur et destruetur de domibus boscis et gardinis et aliis quibuscunque ad predictum tenementum spectaÌ„tibus It should appere by Glanuile in the beginning of this chapiter that the common law was as much before the making herof in all cases of feloni sauiÌ„g for theft in which in the king had no yere and daye Howbeit after Glanuiles time the statut of Magna carta was made which sayd in the 22 chapter therof Nos non tenebimê° terras illorum qui conuicti fuerint de felonia nisi per vnum annum et vnum diem et tunc red dantur terre ille dominis feodorum By this it should seme this statute doth remitte the wast because it speaketh nothing of it or ells perauenture you will saye that this word Nisi argues and proues that the kinge before the statut of Magna carta might haue holdeÌ„ it as longe as he would but to the coÌ„trarie of that exposition is Glanuile as it appereth before And also Bracton which wrote somwhat after this tyme For by Bracton in his second boke it appereth that before the making of the sayd statut of Magna carta the king had nothinge els but the wast and to th entent he should remitte the wast the yere and day was afterward geuen to the kinge For these be his words in the title of Vtlarie Si vero terraÌ„ liberam habuerint vtlagati statim capienda est in manum do mini regis et tenenda per vnum annum et vnum diem ad capitales dominos post terminuÌ„ illuÌ„ reuersura si de alio tenuerit quaÌ„ de rege si auteÌ„ de rege tunc erit Eschaeta ipsius regis et hoc veruÌ„ est quod per taleÌ„ terminuÌ„ remanebit in manu do mini regis nisi ipse capitalis dominus vel alius fineÌ„ fecerit protermino regi habendo fed quesit causa quare terra remane bit in manu domini regis videtur quod talis est quia reuera cuÌ„ quis fuerit coÌ„uictus de aliqua felonia in potestate domini regis erit prosternandi edificia extirpandi gardina et arandi prata et quoniaÌ„ huiusmodi vrge bantur in graue daÌ„num dominoruÌ„ pro coÌ„muni vtilitate prouisuÌ„ fuit quod huiusmodi dura et grauia remanerent et quod dominê° rex propter hoc haberet coÌ„moditateÌ„ totius terre illius per vnuÌ„ annuÌ„ et vnuÌ„ dieÌ„ et sic omnia cuÌ„ integritate reuertereÌ„tur in manus capitaliuÌ„ dominoruÌ„ nunc auteÌ„ petitur vtruÌ„ .6 finis pro termino et similiter pro vasto Et noÌ„ video rationeÌ„ quare nisi quod terminus bene poterit esse per se sine vasto eo quod fugitiuus et vtlagatus non soluÌ„ delinquit erga euÌ„ qui sequitur et appel lat sed erga regeÌ„ cuius paceÌ„ infriÌ„git contra fideÌ„ suaÌ„ cui tene tur quia quilibet cuÌ„ faciat sacrameÌ„tuÌ„ iurat salua fide domini regis Thus our autors agre not vpoÌ„ this yere day for Bracton is contrarie to Glanuille that wrote before him Howbeit BrittoÌ„ which was likewise before the makiÌ„g of this statut of Prerogatiua agreeth with Bracton as it appereth in his boke fo 14. adding further that the kinge shal not haue the yere and day of land that is holden only for terme of life or yeres or by freshe disseisin or in fee ferme or in mortgag And so is Bracton also therw t agreing in his secoÌ„d boke but now sins the time this statut of prerogatiua was made which geues the kinge as you may perceiue bothe the yeare day the wast And first he saieth quod rex habebit omnes exitus eiusdeÌ„ per vnuÌ„ annuÌ„ et vnuÌ„ dieÌ„ By this it should appere that the kynge should not haue the issues of the land but by a yere a day but yet it is clere that he shal haue the issues also from the time of the felonie done vntil the time his highnes hath had the yere day wast not the lord allowing that that is to be alowed for the finding of the prisoner for it can not be inteÌ„ded that the lord shoulde haue the meane profits because the laÌ„d shal be deliuered vnto him wtout profit that is to saye wasted destroyed 3. E. 3. in Fitz ti Corone 290. 49. E. 3. fo 1â— And therw t agreeth the boke in 3. 49. E. 3. And there it appereth that if an office be fouÌ„d 20. yeres after the attainder the kinge shal haue the profites from the time of the felonie coÌ„mitted vntill the yeare and daye next after the office founde For though the lord be entitled to haue theschete yet the kinges title for the yeare daye and waste goeth beefore the lordes For the wordes bee Postquam dominus rex habuerit annum diem et vastum tunc reddatur tenÌ„tum illud capitali domino Also by this woorde Reddatur it semes the lord can not enter intoo his escâ—ete after office found but is driuen too sue an ousterle main for the same out of the kinges handes as it appereth 8. 8. E. 2. in Fitz ti Trauers Pl. 48. E. 2. but if a stranger abate before office the lord shal haue a writ of eschete against him and recouer and yet that notwithstanding when an office shal be founde afterwarde the kinge may seise for the yere daye and wast and shal be aunswered of the mesne profytes like as it is when the kinges tenant in chief dyeth his heir of full age an estraÌ„ger abateth the heier maye haue assise of mort dauncestore if he will and recouer against the abator and yet vpon an office found afterward the kinge shall seise for primer season and be answered of all the meane profites and the heir
and entitle hym by the seconde office and trauerse the firste as hee nedes muste for thenterpleder muste nedes reste vppon the firste office and not vpon the second then as thissue is founde P. 36. E. 3. in Fits titulo Trauers P. 44. so shall hee or theye for whome it is founde haue lyuerye And this appearethe in the newe Natura breuium fo 294. 36. E. 3. 16. E. 4. folio 4. Howebeit a great doubt ryseth in our bookes vppon thys mater whether thenterpleder shal be fourthwithe after the seconde office founde or not vntill suche time as the heyre that is founde wythin age commethe to his age and as it appeareth by the sayde boke of 36. Ed. 3. in this case where one was first found of full age after the other within age thenterpleader was fourthwithe for it weare noe reason that hee that was ryghte heire and of full age shoulde bee delayed by the nonage of the other that is noe heire And a straunger shal bee receaued to trauerse the office not withstandinge the heire that is founde by the office that is trauersed bee withein age And then it is noe reason that the heire in this case be in worse condicion then a strauÌ„ger But take it by the first office one is found heire and wythin age and by the seconde office an other is found heire and of full age whether in this case they shal enterplede or not or whether thenterpleader shal be before thage of the other And surely it shoulde seeme by the groundes and rules declared before vpon the writ of Diem clausit extremum that the seconde office in this last case is voide because there ys noe better title founde for the king than was by the first then if it be voide there can be no enterpleder Howebeâ—yt in the newe Natura breuium fo 2â—0 it appeareth to the contrary hereof that they shal enterplede in this case and that the seconde office is not voyde for there the heyres founde by bothe offices weare of full age And yet that notwythstandynge theye enterpleaded And so is .5 T. 5. E. 4. f. â— Edwarde the fowerthe where it is sayde that if by one office the heire is founde within age and by an other office an other is founde heire and of ful age that in this case theye shall enterpleade but not before the childe come to his full age And Townesende iustice sayeth in .1 H. 7. that if by diuerse offices ij Liuery P. 17 be seuerally founde heires and within age nowe the kynge shall kepe the landes tyll theire full age and thenne theye shall enterpleade and yf theye dye before enterpleder their heires within age seueral Deuenerunt shal be awarded that is to say for euerie heire one by the same beyng fouÌ„d seuerally heyres to the auncester theye shall enterpleade at they re full age like as the auncester shoulde haue doone if they hadde lyued and yf the dyinge of anye of them weare wytheout issue and the other founde to bee his heire then is thenterpleder determined Thus may ye see how bokes vary in this matter and yet by the waye note this difference that is to saye where by the firste office the heire is founde within age and were of full age for by these bokes it shoulde seeme that if hee bee firste founde withein age notwithstandyng that by an other office an other is found heire and of full age yet hee shall not enterplede with the other tyll he bee of age contrarie it is yf the fyrst be found of full age and the nexte wythin age and the reason may be for that the kynge is first seysed of hym that is wythyn age with whom the lawe weyes more in presumption to bee heire than the other and thys tytle ys the beste tytle that the kynge hathe for it entytlethe hys highenesse to a greater benefite than dothe the seconde office and thys second was found vpon a coÌ„mission graunted more for the kings benefit thaÌ„ for the heries that should be fouÌ„d by the same and therefore it weare reason that hee that is first founde heire haue more fauoure if anye fauoure bee to bee shewed thanne hee that was last founde heire or at the least for the kynges benefit that the matter be respited til the childe bee of age Also the sayde Iustice Townesend sayde further that if one bee founde heire in one countie an other found heire in an other countie yet they shall enterplede whyche can not bee as me seemethe for once wee haue a generall grounde that a man can not sue a generall lyuerie by parcelles but firste he muste cause an office to be founde in euerye shere where he haue landes and when all the offices be returned then to haue his lyuerie and not beefore then this case where one is founde heire in one sheere and an other in an other sheere heare none of them bothe canne haue lyuerye beecause hee hathe noe office founde butte in one sheere and not in the other and thenne if there canne be noe liuerie there can be noe enterpleder wherfore it should seme in that case they caÌ„ not eÌ„terplede 2. â— 7. f. 2. Trauers 49. And here with agreeth the boke in .2 .8 Henry the seuenth So no enterpleder can bee but where there is an office thorough the whole found for euerye heire in euerye countie wheare the landes lye but it is not allwaye requisite that theare bee seuerall offices founde for sometimes vppon one office founde by it self alone there maye bee an enterpleder and that is wheare ij bee founde heires by one enqueste as two twynnes that is to say two children borne at a burden And it is to be noted that euerye enterpleder is to trye the priuitie of bloude onely that is to say which of these the enterplede is next heyre to hym that last dyed seysed and not to trye theire rightes in the landes And therfore if by one office one bee fouÌ„d heire of a general taile and by an other office an other is founde heire to the same lande as of estate in specyall taile theye shall not enterpleade as it appearethe in 21. H. 7. fo 3â— Allso they must be both found heires to him that last dyed and by whose death the king dyd seise for if one bee founde heire to hym that dyed seised and another is founde heire to the auÌ„cester that dyed seised nexte before the last dyinge seised in this case they shall not enterplede as it appearethe in H. 2. H. 6. f. 5. Also theye shall not enterplede but wher both heirs claime by one selfe title of landes holden of the kinge for yf the kings tenant dye seised of lands holden of other as well as of the kynge and one is founde heire to al the landes and by an other office an other is founde heire onely to the landes holden of other in this case theye shall not enterpleade as it appeareth in .12 E. 4.
the new Natura breuium fo 26â— and in .5 H. 5 H 5. H. 5. I finde a scire facias sued vpon this statute against him that had liuerie because an office hath found an other to be nerer heire to the auncestour that dyed than was hee that sued liuerie So alwaies as farre as I can finde it is sued vppon a recorde the disproues the liuerie or ouster le maine and not vpon any that affirmes it whereby I suppose that yeluertons opinion is lawe as is beefore declared And it semes that by this statute the king must sue a scire facias al though the recorde or title that is found for him bee founde within a yere after liueri or ouster le maine sued And lerne whether Assise lye against the eschetour that sesseth without a scire facias in cases where a scire facias should be sued For by the sta of W. 1. ca. 24. assise lieth against him in cases wher he seiseth anye landes by colour of his office wtout speciall warrant or commaundement or certeine authoritie that be longeth to his office so to doe And learne whether the king by that seisure hath any possession for if the king seise without a scire facias where he ought to sue a scire facias the partie hath no remedy but to sue vnto him by peticion euen as he should do if his highnes had seised any other lands of his without cause Howbeit the king by such a reseiser vndoeth not the parties possession so that he shal bee saide an entruder from the time of the liuerie or ouster le maine sued as it doth in case the reseiser had bene vpon a scire facias wherfore in such case although the partie cannot be suffred to recouer his possession againe by entrie vppon the king yet when the kinge graunts it ouer he may now enter or haue assise Trauers 26. as appeareth .24 E. 3 fo 34. et 43. li. Ass Also note that this statute that geeues the scire facias extendes but vntoo him or them haue liuerie or ouster le maine or anye other claiming by them For if after liuerie on ouster le maine sued a stranger by an eigne title in disaffirmyng the tenaÌ„ts interest enter as heire vpon him or recouer by assise of mor dauncester or any other accion auncestrell against him is entred into the land as heire nowe because the landes are holden of the king in chiefe his highnes may seise the saide land for primer seisine or title of Wardshippe as the case doth require without any scire facias 21. E. 3. fo 1. as appeareth .21 E. 3. For it is not to be said now a reseiser because against hym there was no seiser made of the saide landes before And lerne enquire if he that missueth the liuerie be within age whether the king shal reseise in that case as he shall doe if it were missued by one of ful age as take yâ— case to bee landes are holden of the kinge in Socage in Capite now the liuerie is sued within age that is to saye at the age of .14 yeres whether in this case the missuing of the same shall be a cause of reseiser or not T. 12. R. 2 see the booke thereof 12. R. 2. The wordes of the statute be further that if any record be found in the tresorie or elles where that vpon this record a scire facias shall be awarded But that is to bee vnderstande in this maner that first the transcript of the said record shal be by writ remoued into the Chauncerie and then out of the Chauncery shal there be a scire facias awarded not out of the tresory as it appeareth .21 â—â— li. ass lib. Ass Issues mesne NOte that if the king haue a title right or interest to any lands or tenements his highnes wheÌ„ he seiseth shal be aunswered of all the mesne issues and profites from the time of his sayd title right or interest growen and whether it be a right of entre or title of entre it maketh no diuersitie in the kinges case as for an example the king entreth for a condition broken his highnes shal be answered of all the issues and profites sins the condicion broken and yet in that case a common person shal not haue the issues and profites but from the time of his entrie Like law is it if the kinges tenaunt aâ—en in mortmain and the kinge entreth but otherwise it is if he entre for mortmain in lands not holden of him vpon a title deuolued vntoo his highnes in defaut of other lords And these cases appere H. 19. et 41. E. 3. fo 21. 19. E. 3. Entre coÌ„g P. 39. The same law is it where his highnes is entitled to seise for that the lands are of his foundatioÌ„ and aliened contrarie to the statut of west .2 ca. 41. which geues the writtof contra formaÌ„ collationis H. 46 E. 3. Forf P. 18. in this case his highnes shal be answered of all the mesne issues growen from the time of the alienatioÌ„ as appereth H. 46. E. 3. And note also that if the king make any graunt which is not sufficient in the law or is deceiued in the making of the same by reason it was made vpon a false suggestion in his case if this highnes doth resigne this graÌ„t adnull it iure regis as he may he shal be then be answered of all the mesne issues profits which were lost by reason of the sayde insufficient graunt as appereth .11 H 4. But if his highnes bee entitled to any lands nomine destriccionis there his highnes shall not bee answered of the profites but from the finding of that title 11. H. 4. f. â— as in case where the kinges tenant in chief alieneth without licence and an office is therof found in this case his highnes shal not be answered of the profites from the time of that alienation but onely from the tyme of the findinge of the office or from the tyme of a Scire facias returned wher the alienatioÌ„ is of record P. 8. e. 4. f. 4 and herof see the booke 8. E. 4. Like law is where his highnes is to seise the lands of his widow that hath maried her selfe without his licence 40. li. Ass Gard P. 36. And note that where the king is to be aÌ„swered of the mesne issues and profits perceued and taken of any landes which haue come to soÌ„dry hands sins the kings title first growen to the same there euery one of them that haue sondrely so perceiued and taken the profits shal answer for his owne time and not one for all as it appereth in the boke of 46. before remembred And note also that by the statut of w. 2. ca. 32. it is prouided that if any spiritual man bring any real action and recouer that the land recouered shall remayne in the kinges hands vntill such time as it be sued out of his hands by him that recouered or els by the chiefe lorde and in the meane time the shiriue shal auÌ„swer the kinge in the eschequer of the profites by which statut whether the collusion bee found or not found yet the king shal haue the meane issues as it is thought 20. H. 6. 20. H. 6. f. â— So it is in a writ iudicial of deceite brought against any the king shall haue the issues growen from the time of the first iugement vntill iugement be geueÌ„ in the sayd writ of disceit ¶ Some tymes the kynge recouâ—eth of the issue in the allowance of an estraunge tytle as yf the husband beynge the kynges tenant vpon a false suggestion purchaseth lycence to alieÌ„ to take estate to him to his wife so doth afterward dyeth the wife holdeth her in by title of Suruiuor occupieth nowe vpoÌ„ a Scire facias against the wife his highnes shal bee answered of all the meane issues since her occupiynge of the ii parts of the land and the thyrd part he recopeth and alloweth for her dower .40 li. Ass P. 36. ¶ Note that in a writ of disceit vpon a recouery in a Preeipe quod reddat of land where the proces was a graÌ„d Cape 40. Li. Ass Gard. P. 1. if the pleintyfe recouer he shall recouer the land and his damages but not the issues of the land synce the fyrst iudgement because the kinge shall haue them by the graunde Cape and the shirife accomptable of theÌ„ quod vide titulo disceit in Fitz P. 33. 46. 7. 32. Contrarie lawe is it if there lie no grand Cape in the action as if the recouerie be in a Scire facias as it appereth titulo Disceit in Fitz P. 36. 27. Finis Diuers other prerogatiues therbe which the kiÌ„g hath by the order of the comoÌ„ law that be not wtiÌ„ this statute coÌ„priÌ„sed a great part wherof vnder the title of Prerogatife master Fitz herbart hath most diligeÌ„tli noted in his great AbridgmeÌ„t so well ordred placed there that I doo of purpose omit to reherse them here The rest woulde require so longe a serche that oneles I had gathered and noted them al redie as I haue not doÌ„e in dede I should be faine to peruse the hole bodie of the comoÌ„ Lawes for the knowleg therof wheruntoo time seruethe mee not wherefore at this time myne intent is not to medle with them Imprynted at London in flete strete within temple Barre at the signe of the hand starre by Rychard Tottel An. 1567. Cum priuilegio
for when the lyuerie is missued it is as it had beene neuer sued Howebeit thys reseisure shall not bee wytheoute a Scire facias as I shall thereof speake more at large hereafter But yf the heyre or he that should sue lyuerie doe make a rightfull suite for the same according to thorder of the lawe and asmuche as in hym lyethe to do to haue liuerye howebeeit the kynge will not but willbee aduised ere hee make hym lyuerie and so protracte the time in this case his highenesse of ryghte maye not haue the profites from the tyme the partye was thus delayed but ought to restore theÌ„ vnto the partye vppon his lyuerye as maye appeare in the firste yeare of Henrye the seuenthe H. 1. H. 7. in Fits ti Liuery P. 18. And thereuppon it is to be noted that there be two kynde of lyueries the one generall the other speciall The generall is the liuerye that this statut speketh of the especial may be more properly treated of when wee come to the 12. chapiter of this prerogatiue And this generall lyuerie is sometime made cum exitibus and sometimes sine exitibus but for the most parte sine exitibus for wheare it is made cum exitibus from the time of the seisure there it is properlye noe liuerye for it appearethe the kynge neuer seised rightfully or by anye title As for example if the kynge will seise the lande that is founde in thoffice to be holden of Tharchebyshoppe of Canterburye or Byshoppe of Durham or anye suche persones as are exempted in the first chapiter of this prerogatiue in this case they shal haue an Ouster le main vna cum exitibus H. 16. E. 3. in Fits ti Liuere P. 29 as it appearethe in 16. E. 3. The same lawe is it yf of landes holden in capite there be a lease made for terme of lyfe the remainder ouer to estraunger 14. H. 4. f. 34 18. E. 3. f. 21. 24. E. 3. f. 27. tenaunt for terme of lyfe dyâ—th and this matter founde by office nowe if the kynge seise hee in the remainder shall haue an Ouster le main vna cum exitibus as it appearethe in 14. H. 4. 18 E. 3. 24. Edwarde the thirde Like law it is where .ij. hold iointly of the king the one dyethe and this matter founde by office and yet that notwithstandynge the kynge seises hee that suruiues shall haue an Ouster le mayn vna cum exitibus as it appearethe in the boke of Assises 44. 44. li. ass in Fits ti Liuere P. 11. T. 45. E. 3. f. 18. E. 3. and in the newe Natura breuium fo 2â—â— f. 257. For in all these cases where the Ouster le maine is vna cum exitibus the king ought not to haue seiseised and so sayethe Thorp 45. E. 3. The words of the statute be further Post mortem eorum qui de eo tenent VpoÌ„ this it is to bee sene at what time after the kynges tenants deathe this lyuerie shall be sued If the possession of the free holde immediatlye after the deathe of the kynges tenaunte discende vnto his heire it is to bee sued fourthwithe and yf but onelye a reuercion discende then it is not to be sued tyl after the death of the particular tenaunt as it may appeare in the newe Natura breuium f. 291. where the heire sued not lyuerie tyll after the deathe of the tenaunt by the curtesye tenaunt in dower and tenaunt for terme of lyfe But learne what the lawe shoulde haue beene if the kynges tenant hadde dyed seised of a reuersion whereupon rent had beene reserued hys heire of full age whether hee should haue theÌ„ sued liuerie fourthwith or els to haue taried tyll the deathe of the particuler tenaunt for in the seuenthe yeare of kyng Henrye the sixte Iune thinks he should tary or els it might followe the kynge should haue double lyuerie that is to say one for the rent an other for the lande M. 7. H. 6. f. 3 but Paston is in contrarye opinion and resembles it to a reuersion dependyng vpon an estate tayle with a rent reserued howebeit at this daye there is election geuen vnto the heire that is to say eyther to sue his liuerie immediatly after the deathe of his auÌ„cester in the lyfe of these particuler tenaunts or els to tarye vntill they die and if he sue his lyuerie in theire lyfe he paiethe for primer seisin but the moytie of one yeares profyte yf after theire deathe then he payethe the hole yeares profit howebeit if there be a rent reserued he pursueth his liuery in the lyfe of the particular tenaunt it seemes besides the halfe yeres profit of the value of the land he shal also paye the hole yeares profit of the rent reserued therfore learn what common experience teacheth vs in that case The woordes of the statut be Qui de eo tenent in capite By these words he must holde of the kinge in chiefe for yf he holde not of hym in chiefe the kynge can haue noe primer seisin And yet you shal see in the newe Natura breuium folio 296. that of lands in the citie of LoÌ„don holden of the king in burgage the king had primer seisin the heire thereof sued his liuery but that president semes to bee against the lawe for Markham saiethe in 7. E. 4. that in Neuels case it was founde that ones father died seised of certain lande that hee helde of the kyng in Burgage T. 7. E. 4. f. 9 and thereupon thexchetor did seise whiche seiser by thaduise of all the Iustices was discharged by a Supersedeas awarded to thexchetor for the wordes of bothe the foresayde statutes be verye plaine therein that is to saye that hee must holde of the kynge in capite but whether he holde of the kyng by knights seruice or by Socage in capite it makethe noe matter so that he holde in capite for the kinge in bothe cases shall haue primer seisin althoughe not wyth so large a prerogatiue in th one case as in the other For in the firste case where the tenure is knyghtes seruyce in capite the kynge shall haue the same prerogatiue when the heire is of full age at the deathe of his auÌ„cester as he should haue hadde yf hee hadde beene wythin age that is to saye primer seisin aswell in the landes holden of others as of hym selfe bee it that the landes holden of other bee holden by knyghtes seruice or in Socage But otherwyse yt ys where the tenure is but a tenure by Socage in capite for there the kynge shall haue noe primer seisin in landes holden of other namelye if theye be holden of other by knyghtes seruice as it appearethe plainlye by the statute of Magna charta capit 27. and in the newe Natura breuium fo 2â—â— nor yet anye primier seisin of landes holden of hymselfe in Socage in capite â–ª If the heyre at
facient seruicia dominis feodi per manus primogenitae Nec potest primogenita ea ratione vel occasione a postnatis sororibus homagium vel custodiam vel aliquam aliam subiectioneÌ„ exigere vel habere Quia cum omnes sorores sint quasi vnus heres de vna hereditate si primo genita posset habere homagium aliarum sororum vel custodiam petere tunc esset illa hereditas diuisa ita quod primogenita soror esset simul et semel de vna hereditate domina et heres Here 's auteÌ„ suae partis et domina sororum suarum quod quidem in isto casu fieri non possit cum ipsa primogenita nihil posset petere plus quam aliae sorores nisi capitale mesuagium ratione eineciae Preterea si primogenita huiusmodi homagium a post natis sororibus suis acciperet esset quasi domina earum et habere posset custodiam earum et filiorum suorum et hoc esset quasi committere agnuÌ„ lupo ad deuorandum Et ideo vobis mandamus quod predictas consuetudines quas in regno nostro Anglie habemus in hoc casu vt predictum est in terra nostra Hiberniae proclamari ac firmiter teneri facias et obseruari In cuius rei c. Teste me ipso apud vvest ix die Februarii Anno regni nostri xiiii GlaÌ„uil li. 7. Before the makinge of this statute called statutum Hibernie it appereth by Glanuill which wrott in the tyme of kinge Henry the second that the husband of the eldest daughter should do homage vnto the Lorde for the hole inheritaunce and that the other daughters or theyr husbandes should do their seruice for theyr tenemeÌ„ts vnto the chief lord by the handes of theldest sister or her husband and yet they for the same should not be bound to do anie homage or fealti to the eldest sister or her husbaÌ„d duringe theyr liues ne yet that heires that come of them in the first degre or secoÌ„d degre But the heires in the third degre by the lawe of the Land were bouÌ„d to do homage to paye reliefe for their tenements vnto the heire of the eldest daughter Quod nota And the reason of it after the minde of Bracton which agreeth with Glanuille is this that when issue descendeth of them to the 3. or .4 degre it is not like that issue should faile of their bodies Bract ' li. de homÌ„ capieÌ„d and then may the heires of theldest daughter take homage verie well for it is vnlikely that the eldest daughter or her heires shoulde then haue the same by discent for these be his wordes Quia cum sint heredes tres de herede in heredeÌ„ extunc vix poterin deficere et ideo tunc sequitur homagium absquedaÌ„pno et periculo donatoris For if therwere likelyhode of the discent in this case the takinge of homage should be rather hurtfull then beneficial For by the ancieÌ„t Lawes if one had infeffed an other to holde of him and had taken his homage he could neuer be his heire afterwards but the next vnder the feoffor his heires of the kinred shoulde rather haue it As put case before the statute of Quia emptores the eldest sonne had enfeoffed the middelmost to hold of him and had taken his homage the middlemost dieth without issue the yongest should haue had the land and not the eldest because of the homage that he toke howbeit if there were no yonger sonne ne any other heire then the feoffor might claime the Land againe by eschete and not otherwise for as longe as there were any the feoffor or his heires of whome the Lands were so holden might not haue it And that Bracton sheweth also in his first boke in the title de maritagiiÌ„s reuersis ad donatoreÌ„ ê“ defectu heredis For he hath this text or sainge there quod homagium expellit dominicum et retinebit seruicium quod non potest quis esse dominus et heres so that you may nowe perceiue that this statute of Irelande agreeth with Glanuill sauing that Glanuill dilateth or declares the common law farther then this statute doth Also Bracton saith further in his title of Homage that if the eldest daughter in this case wil preuent the tyme and take homage before she nedeth she by that leseth the benefite of the discent saieth that the reason why the serâ—yce ought to be done by the eldest for them all is because the lord shal not be driuen to take his seruice by parcell mele further saith that although the eldest may not haue homage of her sisters forthwith but must tarry a tyme yet shall they out of hand do fealtie vnto her all the other seruices that are to be done the eldest shal do them ouer whiche is contrarie to Glanuill for he saith the other sisters shall doe neyther homage nor fealtie Howbeit Britton fol. 175. agreeth with Bracton and there setteth forth the manner of the fealtie by the yonger sisters to be done to the elder saith that it is at the eleccion of the lord whether he will take homage the other seruices by the handes of the eldest onely for theÌ„ all or else of euery sister seuerally for her seruice for if hee might not so doe the lord in proces of tyme might happelye lese the wardship of the heires of the other sisters because of the woordes in the write of Ward which are that the ancestours dyed in his homage that would be harde to trye when the homage was euer done vnto him onely by the eldest sister And Bracton in his said title of Homage sayeth Cum quelibet soror de facto acapitauerit dnÌ„o capitali hoc reuocari non poterit a primogenÌ„ vel eius marito sed semê‘ qd ' factum est tenebit quia capitalis dnÌ„s quod ei oblat ' est non recusabit sed siue tenuerint de dnÌ„o Rege siue de alio cuÌ„ homagium factum fuerit siue ante tercium hered ' siue post statim sequentur releuiuÌ„ et alia seruicÌ„ a little before that sayeth si plures sorores de dnÌ„o rege tenuerint in capite tuÌ„c pri mogenit ' missa omnes acapitabunt et homagium facieÌ„t dnÌ„o Regi and therwith agreeth Britton fo 171. And yet fo 198. saieth that theldest only shall do homage vnto the kinge for her selfe her sisters Thus haue you now thexposition of the said statut of Ireland by the olde writers by which said statute the saide writers yt appeareth that this statut of Prerogatiue is but a confirmacion of the common lawe doth only set forth declare what the kings Prerogatiue is wheÌ„ landes holden in chiefe discend to twoe coparceners For in this the king hath a Prerogatiue aboue a comon person aswel for that they shal seuerallye holde of his highnes as for that that his highnes shall make the particion for
goodes to the kinge without anye exception And hereuppon it is to be seene firste what is comprised in thys woorde catalla Catalla is a generall woorde whiche comprehendes as well Chatels mouable as not moueable For leases for terme of yeares are within this woord catalla as appeareth by Bracton in his seconde booke in the tytle of Forfaiture of Felons sayeng quod terminum annorum erit domini regis vt catalla Quia accipit terminum ad similitudinē catallorum And therewith agreeth the booke in 39 H. 6. 39. H. 6. 34 Also vnder this woorde catalla is taken the issues and profites of landes and tenementes of them that flye for felony vntill suche time as they bee attainted or acquited And like wise of the Landes and tenementes of clerkes conuicte vntill suche tyme as hee hath made hys purgacion I meane lands tenements as wel of their wines right as of their own right P. 4. E. 2. in Fitz. Forfaiture p. 16. 16. E. 3. Corone p. 356 296. et 344. so is the booke 4. E. 2. et 31. E. 3. Also vnder this word contra are takē the emblements that were growing vpō the ground at the time that the forfaifure of the goods first began to take place as appereth 3. E. 3. Also vnder this word Catalla is cōprised a right of acciō to goodes as wher goods be taken away wrongfully frō the felon or wher one is endetted to the felon by obligacion P. 6. H. 7. in Fitz ti Forfaiture p. 12. M. 19. H. 6. fo 47. et H. 30 H. 6. fo 5. P. 28. E. 3. 92 et t. Trauers 32. lib. Ass p. 33. or is accomptable to the felon for any receites or otherwise this appeareth 6. H. 7. et 19. H. 6. Also vnder this word Catalla is takē sometims goodes wherin the felon hath no propertie as if a man deliuer money out of a bagg or corne out of a sacke to one to kepe which is afterwardes attainted of felonye the money or corne in this case is forfaited Like law it is if a thief that steales goodes seuerally from sundry persons afterwarde is attainted for one of the said felonies by this one attainder the goodes that are stolen from the other bee also forfaited to the king Like lawe is it if one steale goods and before he be attainted therof he killeth him selfe or dyeth in prison or abiures the realme confessinge an other felonie then that for the which he fled to the churche in these cases he forfaiteth the gooddes that hee did steale So it is if the wife kill her husbande shee forfaites the goodes of her husbande 44. E. 3. f. 39. 26. li. ass p. 32 And these cases ye maye see in the title of Corone in Fitz. p. 317. 323. 334. 318. 162. 319. 380. 379. 423. And in the title of Auowrie p. 151. And in the title of Forfaiture p. 15. Then let vs see further what may be saide vppon this word Felonum If th offence that is committed be felony then is it properlye within the compas of this woorde Felonum he that committes th offence shal be saide Felo Notwithstanding that he therefore shal not suffer death as in a case where one killeth another se defendendo or by misaduenture this offence is felony and hee that committes it shal forfait his goodes notwithstanding that hee obtayne pardon of life Coron̄ 116. Felonie 599. Dower 183. For it was at the kings pleasure to graunt pardon or not And this appereth 15. E. 3. But so shal not he that killeth one that woulde robbe him in his house Or the officer that killeth one that will not be rested nor hee that killeth any thing not yet borne as a childe in his mothers bellye nor the parsone that is straught that killeth another in his madnesse For in all these cases it is not felonye The woordes bee further Damna torū fugitiuorum Sometimes the king shall haue his chatell although he be not condemned of the felony as if a man be arrested for felony and afterwardes breakes the arrest and the other ere hee can take him againe killes him in this case hee that is killed shall forfaite his goodes and yet hee was neuer attainted of th offence Corō p. 312. et p. 290. Like lawe is it if bee were killed in the first arrest where he woulde not bee arrested And this appeareth 3. E. 3. Howbeit since that tyme there was a statute made anno 34. E. 3. cap. 12. Whiche seemes to alter the lawe in these cases if it bee not that you will say peraduenture that he shall forfait them quia fugam fecit Ideo quere Hee that is felo de se shall forfaite his gooddes and yet hee was neuer attainted Like lawe is before H 34 E. 3. in Fitz. Eschet p. 10. of the clerk conuict And so is it of suche as stande mute or challenge aboue the nomber of 2 enquestes as appeareth 34. Ed. 3. Then further this woorde fugitiuorum is taken suche as flee or withdraw themselues for the felonye that they bee endyted appealed or accused of for that makes a great presumpcion against them as Bracton saieth in his seconde booke vnder the title Ad quae restituaturvtlagatus and for that presumption sake shall the vtlawrie proceade whether hee bee giltye of the felonye or not And also saieth hee in the saide booke quód vtlagati de felonia gerunt caput lupinum secum suum portant iudicium ita quod sine iudiciali inquisitione pereunt quia merito sine lege pereūt qui secundum legem viuere recusauerunt et hoc ita si in capiendo fugiant vel se defendant Si autem viui capti fuerint vel se reddiderint vita illorum et mors est in manu domini Regis et qui taliter captum interfecerit respondebit pro eo sicut pro alio nisi sit in locis vbi consuetudo se habeat in contrarium videlicet in com̄ Hereford et Glouc̄ And in an other place hee saieth Quod nullum crimen maius inobedientia quia pro contemptu et inobedientia porerit quis excommunicari sicut pro quolibet peccato mortale cum omnes subditi debeant esse Regi tanquam precellenti maxime in honestis et ducibus eius tanquam ab eo missis et sic concordat lex diuina aliquantulum cum humana And also saieth quod vtlagatus de felonia foriffacit patriam et amicos forisfacit quae pacis sunt forisfacit quae legis sunt forisfacit quae iuris sunt et possessionis et forisfacit actionem ante vtlagariam sibi datam Thus by the waye haue I noted vntoo you suche thinges out of Bracton as mee seemeth bee notable and make somewhat for this purpose Althoughe I needed not to haue gone so farre as to outlawrie for exposition of this woorde fugitiuorum but might haue rested at the flyenge For if one flee for the
that hath but a chatell shall not be receiued in anye case to falsifie the record that geueth any man interest in the freehold although he be a straunger to that record Contrarie lawe is it of him that hathe a freeholde or inheritaunce in the lande for they shall trauerse the recorde in suche case Lyke lawe is it where the kynge is entitled but to the wardeshyppe of the heire of his tenaūt hee that is fermer of the dimise of a straūger shal not trauerse hys office althoughe the king be not entitled thereby to anye freeholde for it was not the minde of the makers of these statutes to helpe them that clayme but chatels which are accompted in law as nothing because they perishe and abide not Et de minimis non curat lex Howbeit learne what the law wil in these cases for I haue seene noe bookes of them The lorde in title of wardshyppe shal trauerse the office and yet hee claymethe but a terme of yeares in the lande as where it is founde by office that such a one helde lands of the king in chief and dyed his heire within age where in deede he holdeth no suche lande of the kynge but onelye of mee by knightes seruice in this case I that am lorde shall trauerse this office that is to saye shewe howe they bee holden of mee by knightes seruyce without that they be holden of the king as appereth in 1. H 7. Trauers 20. For ther it toucheth the lords inheritance in the righte of his seignory because he by the false office is to lose the profit that is presently fallen by reason of his seignorie it is reason he be receaued to trauerse the office But if hee were but lorde in socage he shoulde not be receiued to his trauerse because he therby can make no title to the wardshippe of the body 37. lib. ass P 35. and landes of the childe for it is a good generall grounde if the kynge be once seised his highnes shall reteine against all other that haue noe title notwithstandinge it be found allso that the kynge had no title but that the other had possession before him as appeareth in .37 lib ass where it was found that neither the kinge nor the partie had title and yet adiudged that the kynge shoulde reteine for thoffice that fyndes the kyng to haue a right or title to entre makes euer the king a good title allthough it bee false and his highnes therby maye take possession against any other that is seised of the landes and reteyne vntill such time as thoffice be trauersed by him that hath title and tried to bee a false offyce And therfore no man shal trauerse thoffice vnlesse he make him selfe a title And if hee can not proue his title to be true allthoughe he be able to proue his trauerse to bee true yet this trauerse wil not serue him As for an exāple it is foūd the kyngs tenaunt died seised of certayn lands that he held of the kynge in chiefe his heire beeinge within age where in dede he had made a feffement in his life time to an other of those landes it is no trauerse for the feffee to say he dyed not seised but he must first make him selfe a title by the feffement and for asmuch as it is founde that the landes are holden in chiefe if he wyl make his title good againste the kyng he must shewe fourth a lycence of alienation or a dispensation therof or els hee muste trauerse the tenure in chiefe as well as he shall doe the rest of thoffice otherwise his tytle is not good Trauers P. 44. et 46. Liuerie p. 18 as it appearethe in .36 E. 3. 3. H. 4. 6. H. 5. .3 H 7. f. 14. Howbeit Hussey holdeth opiniō that not mā may trauerse the tenure but the lord or the heire vnlesse his title be found by office but whether the lawe be so or not learn for as I take it the lorde and euery straunger that hath a tytle againste the kynge makinge his title shall trauerse the office before his title be found by office for when the trauerse is found for the partie his title nowe appeareth of recorde and by the trauerse found the office which was the kings title is vtterly destroyed gone so that now the king is not to make any liuerie of the lands to any person but onely to a moue his hands from the same with the meane issues and profites as one that had no cause to seise them And therefore euery man may enter now that will if he haue right or title of entrie to the lands for the king deliuereth them to no person certaine but onely ryddes his own hands of them as he that had neuer seised thē but otherwise it is where the king is to make liuerie for there his highnes must bee enformed certainly by mater of recorde who shal be his tenāt whoe it is that ought to receiue the liuerie at his handes least his highnes be deceiued in thadmitting of his tenant which ys ought to be a great mater towarde the lord therfore the cases be not lyke wherfore I think a man may trauerse by force of these statutes without hauing their title first found by office so be our bokes .36 E 3. 2. E. 4. f. 10. 16. E. 4. f. 4. Trauers 44. 43. li. ass P. 20. Howbeit 5. E. 4. fo 5. semes to weye to the cōtrarie hereof 12. H. 6. also where it is sayde that if it bee found that the kings tenāt died seised wher in dede he was iointly enfeffed with me now can I not trauerse this office except an other office were founde for me But contrarie lawe should it be if it had ben foūd by the office iointenant with hym for term of life wher in dede I was iointenaunt with him in fee simple in this case I may traūse thoffice because mētiō is made of me in the sayd office this boke case admitted to be law yet it varieth frō the case before remēbred of the strāger that trauersed thoffice for here thoffice is true and when it is found by office that he died seised this maye be allthough the sayde dying seised were iointlye with an other for any thynge that is expresselye founde to the certaintie and then the king here is to admit an other tenant as in the case of the liuerie before of whome as yet he hath no credible informacion that is to saye by mater of recorde and then it is lyke to the cases of tenant by the curtesie tenant in dower and the deuisee which in no wise can be admitted to their estats vnlesse mention be made of them in the office or some other office or mater of recorde found for them 9. H. 7. fo 24 Brief 618. as appearethe in 46. E. 3. M. 11. H. 8. and for none other reasō as I gather it but onely for that thoffice is
in cancellarie noÌ„ obstante quadam ordinatione nuper per dominum regem facta de terris tenÌ„ in manum suam per ministros suos capt ' non liberand ' nisi per ipsum dominum regem prout continetur in quadam diuidenda inter ipsum regem cancellarium facta Cuius vna pars penes cancellarium remanet Statutum de escaetoribus editum .29 E .2 Also a yeare before the makinge of this statut was there an other statut made entitled articuli super cartas which in the 19. chapiter therof saith in this wise De rescheiue la ou lesche tour ou le vicont seisont en le main le roy terres la ou il nad reson de seiser et puis quant troue est la non reson les issues de mesne teÌ„ps ount este ceo en arrere retenê° et nad rendus quant le roy ad le main ouste voet le roy que desormes la ou terres sont issint seisies et puis le main ouste pur ceo que il ny ad raison de seiser ne tenir soient les issues pleinment reÌ„dus a celuy a qui la terre demurt et auoit le damÌ„ resceu By this statute it plainly appereth how that before the making therof therewas no ouster le main graunted vna cum exitibus although it might neuer so plainly appere that the kinge had no cause to seise Howbeit that mischief is now remedied by both these statutes Also by the one of these statutes Also by th one of these statutes it appeareth that the Ouster le maine in suche case might not be graunted without suinge to the kinge himselfe which is also remedied by this statut de escaetoribus which statute although it make no mencion of liueries but onely of ouster le maine yet lyueries are taken to bee within the compasse and prouision of the same And where the letter goeth onelye to the cases where the kinge seiseth before office 9. E. 4. 54. and after warde thoffice that is founde doth giue his highnes no title that there the party may haue his Ouster le maine makinge no mencion of an Ouster le maine to be graunted vppon anye peticion trauerse or Monstraunce de droit as in deede a trauerse was not in vre at that time yet men by an equitie extende this statute de Escaetoribus bothe to the one and too the other because the statute is beneficiall as it appeareth 9. E. 4. and in diuers other bookes And Yeluerton there saieth that if after liuerie or ouster le maine an office bee founde whiche entitleth the kinge of a title growen vntoo him since the liuerie or ouster la maine granted that in that case this statute notwithstanding the kinge may reseise wtout a Scire facias for the woordes are onelye where a record or an office is founde that maintaineth the title whereby the kinge first seised Howbeit manye holde oppinion againste him and saie that it was in the selfe same mischiefe the statute was made for tamen quere for this statut de escaetoribus shoulde seeme to be meant onely to remedy that the was a mischief at comoÌ„ law before the making of the said statut as where there was no record found at the time of the liuerie or ouster le maine sued to let or hinder the partie from suynge of theire saide liuerie or ouster le maine but afterwardes was there found such a record now this notwithstandinge would the king reseise putt the partie from his possession wtout answer or any proces sued against him wherupon he might answer so driue him to sue by peticion make him render all the mene profite which was a greate mischiefe hinderance to the partie for remedie whereof this statut was made but the like mischiefe or hinderance is not where the kinge is entitled by a title groweÌ„ since the liuerie or ouster le maine for here the partie shall not aunswere the profites but froÌ„ the time of this title growen And also the kyng doth him no wronge for it standes with and affirmes the liuery or ouster le maine the king thereby makes not that party an intrudor as he doth in the other case if the said Yeluertons opinion should not be lawe they woulde make that the kinge could not seise vpon an alienacion wtout licence made and found by office since the liuerie or ouster le maine sued which were no reson therefore I think the saide Yeluertons opinion should preuaile in this case And to the same intente effect be those bookes that I can fynd for I can finde no Scire facias sued but in cases of a title growen before the liueries or ouster le maine therefore in a Scire facias sued vpoÌ„ this statute against the party that had liuerie or ouster le maine beeing tenant of the land at the time of Scire facias sued he was denâ—ed in the selfe same plight course against the king as he was at time of the suing of his liuerie or ouster le main for where he had made a feffement by licence taken an estate againe iointly to him other yet this scire facias dyd lye against him soly did not abate for the iointenauntes So was it aiudged in a scire facias sued vpon this statute the the partie must maintaine the title whereby he hath liuery or ouster le maine must maintaine it so that it is was a good title sufficient to haue liuerie vpoÌ„ notwithstanding any recorde that is now found as take the case to bee this one hath liuerie as sole daughter heire after by office it is founde that she hath a sister which ought to haue had liueri with her wherupon a scire facias is sued against the partye that had liuerie to come shew why the land should not bee reseised if she come will saye that they be daughters by seueral ventres that this lande was geeuen to her father mother in speciall taile so ought shee to haue the liuere as she had the is to say soly this plea wil not serue her because it doth not mainteine the liuerie for how could she haue had liuerie soly vnlesse this matter had bene so found by office For if this second office had appeared before the liuerie she coulde not haue trauersed it vnlesse she had made title and then title can shee neuer make againste the kynge as heyre vnlesse the saide title bee firste founde by office Wherfore no more than she might trauerse the said office if it had bene found before liuerie Trauers 31. no more may she trauerse it now in this scire facias after liuerie as it appereth 30. li. Ass and so note that the recorde can not bee trauersed in this scire facias in no case vnlesse it were trauersable before liuery or ouster le maine Also in
quod consentire poterit Et tunc elegat ipsa vtrum maluerit habere virum illum cui premaritat ' fuerit vel alium quem Rex ei obtulerit nullus qui de Rege tenet in Capite per seruicium militare potest alienare maiorem partem terrarum suarum ita quod residuum non sufficiat ad facienduÌ„ seruicium suum fine licencia Regis sed hoc non consueuit intelligi de membris et particulis earundem terrarum This Chapter containeth twoe matters beinge dyuers in nature and therfore I entend to seuer and deuyde the one from the other and the Chapter followinge to adioyne to the latter braunche hereof because they entrete both of one thinge The seuenth chapiter DE Serieantiis alienatis sine licentia regis consueuit rex arentare huiusmodi Seriâ—antias per rationabileÌ„ extentam inde faciendam 13. H. 3. in Fitz. ti Gard p. 147. This statute is but a confirmacion of the common law For it is writen in the .13 yere of king H. 3. in this wise Thomas summonitus est ad respondendum regi quare abduxit Helenam filiam et heredem E. c. T. dicit quod ipse ê‘ assensum E. in vita ipsius E. desponsauit predictam Helenam in facie ecclesie c. et quia predicta Helena est infra etatem et cuÌ„ ad etatem peruenerit potest coÌ„sentire matrimonio vel dissentire ideo remanet predicta Helena in custodia dnÌ„i Regis vsque ad etatem vt consentiat vel dissentiat c. Here it is not set furth nor expressed what is thage in a woman to coÌ„sent to matrimonie and that is all that is to be sought vpoÌ„ this statute for Bracton in his first booke in the latter ende of a chapter which hath this paragrafe s De minoribus qui debent esse sub tutela et Cura dnÌ„orum vel parentum saith quod femina septimo anno etatis sue potest consentire matrimonio et virum sustinere anno duodecimo for he saieth quod femina maius est capax doli quá masculus et quod maturiora sunt vota mulieris quam viri So that by him it appeareth that a Woman maye consent to matrimonie after she is .vii. yeres of age And so I iudge the lawe was at that tyme taken For it appeares in the tyme of kinge E. 1. that a man that helde by knightes seruice maried his heire apparant being vnder age died 13. E. 3. in Fitz. ti Gard p. 138 the lorde claimed the wardship of the bodye an issue was tended against him that at the time of the saide mariage the infant was of thage of seauen yeres and this issue was receiued by the Courte for a good issue to barre the lord of the wardship of the body qd ' nota Howbeit it apperes not by the said booke whether the heire were male or female Wangford saies An. 35. H. 6. fol. 37. that when a woman is .vii. yeares of age her auncestour may then gather aid to marie her which saieng argueth as mee seemeth that shee is then mariageable And also this seemes to make with Bracton Howbeit the lawe is not so taken in these daies For she cannot now consent to matrimonie before thage of .12 yeres This statut spekes onely of the heire female and yet Cheiny saieth in .7 H. 6. M. 7. H. 6. â—â— 30. E. 3. in Fitz. ti Gard p. 156. 128 that the heir male shal be taken wtin the compas of this statute by an equitie because the statute is beneficiall And so it should appere .30 E. 1. where the sonne was maried in the life of his ancestour then being no more then of chage of .v. yeres wheÌ„ the childe came to â—hage of xii yeares thancestour died the court adiudged in this case that the lord should haue the wardship of the body to th entent that if the enfant hereafter ere he passe thage of .14 yeres disagree to the firste mariage the lord may haue the mariage of him And so it may appere by this booke that this statut is but a confirmacion of the common law for euery lorde shal haue like aduauntage in this case as the king shal haue therewith agrees Paston 7. H. M. 7. H. 6. 11 6. adding farther to this that by the order of the comon law before this statut of Prerogatiue if the heire would haue staÌ„d to the first mariage when he or she came to the yeres of conset they should haue paied the double value by this statut they pay nothing therefore the case was there The kings tenant in chief hauing a sonne heir of â—hage of .14 yeres doth mary hym dyeth the king offers the child mariage at the age of .14 yeres whiche he refuseth holdes him selfe to the first mariage adiudged that then fant might so doe that for the same he should neuer pay the double value ne single of his mariage there Babthorp saieth that if the woman had died the heire beinge within the age of consent the kinge shoulde haue hadde the mariage of the childe notwithstandinge that hee was once maried in the life of his auncestour for yt was no mariage but at pleasure and therewith agrees Britton fo 169. Yea although the wife had died after the yeares of consent and before the childe had come to thage of xxi yeres quere of this matter for I am enformed that the lawe is not taken at this daie as the saide booke is in .7 H. 6. ¶ Now to thother branch of the Statute and the chapter next folowing the same It appeareth by Glanuill in the beginning of his seuenth booke that euery freeman hauing land whether he had an heire apparant then lyuing or not or whether the said heire apparant would coÌ„sent to it or not yet might he geue some reasonable porcion of his landes with his daughter or any other woman in mariage or to any man that had don him seruyce or in almes to any religious house or to any other whome he would so the said gifte were made in his health for in extremitie of sicknes hee might not bee suffered so to doe lest it should be thought to be done rather of a rage and furie of the mynde whiche through sicknes for the moste parte commeth to men then of any good discrecion and so might he in his gift excede measure Howbeit suche a gyfte in sicknes was euer good with the consent of the heire or with his confirmacion Againe if he had manye sonnes he could not without the consent of his heire apparant geue any porcion of his enheritance to any of the yonger sonnes for so might he disherit theldest thorough affeccioÌ„ that the fathers lightly beare towardes theire yonger sonne more then towardes thelder But of his purchased lande he might giue the yonger a porcion whether theldest woulde or not And if he had none issue he might geeue
away all his purchased landes But of the lands of his inheritaunce he might giue away no more but a reasonable porcion And if the landes were departible amongest the heires males then might the father in his life time geeue euerye childe what porcion hee woulde so it exceded not the porcion that shoulde descend vnto him And in that case whether the gifte were of landes purthased or of inheritaunce it made no matter Howbeit neyther Abbot nor Bishop might iÌ„ any of these cases geue any porcion of their landes away without the kinges assent or his confirmacion because theire baronies bee of the almes of the king or of his progenitours Hitherto haue ye hearde what Glanuill hath saide After this was the Statute of Magna carta made where in the .31 chapter therof it is writen Nullus liber homo det de cetero ampliê° de terra sua vel vendat de cetero quam vt de residuo terre sue possit sufficienter fieri dnÌ„o feodi seruiciuÌ„ ei debituÌ„ quod pertinet ad feoduÌ„ illud Which statute is but a confirmacion of the comon law as it doth appere by that that is written in Glanuil for so one that had helde by knight seruice if he might haue beene suffred to alien the greatest part of his land he would haue aliened the same peraduenture to hold of him but in Socage or by some smal rent than hauing so little a liuelyhod left to himselfe how had he bene then able to haue done the seruice of a knight or a man of warre or what should his lord haue had in ward to haue founde one to haue done that seruice surely little or nothing Wherby the strength of the Realme might haue much decayed therfore it was a reasonable law to restrain him as me semeth Howbeit Bracton in his first booke vnder the title Si ille cui datuÌ„ est rem datam vlterius alteri dare possit disputes this matter after a sorte that is to say whether the tenant may enfeffe an other agaist the lords will or not he there affirmes he may yea that to hold of him by what seruice he will calleth it DamnuÌ„ absque iniuria seing that though the wardship be not so good after alienacion to the chief lord as it was before yet the relief is as good in euery point then if the lord be serued either of the wardship or reliefe he hath all that knightes seruice requireth Howbeit saith he when the tenant is so disposed to sell his land the lorde shal bee preferred to the sale therof before a stranger geuing as muche as an other will It semeth by Bracton that it was verie doubtfull notwithstanding the statut of Magna carta whither the kings tenaÌ„t might alien his whole tenancy or not And therefore was the statute of Quia emptores terr' made where it is prouyded that from thenceforth which is in the .18 yere of kinge E. the first after Bractons tyme it should be lawful for euery fre man to sell his landes or tenementes or any parte therof at his pleasure to holde of the chiefe lorde by the same seruice that the feffour helde Prouided alwaies that by anye suche sales there comes no landes to Mortmaine This statut remedies the mischief that was founde in the wardship but not the other mischiefe that is to saie touching the defence of the realme For when one mans lyuinge is so dismembred neuer a one of them is able to doe the seruice of a man for want of lyuehoâ—e Yea and much more vnabler since this Statute then before For before where he gaue it to hold of himself he reserued somewhat in place of the lande that went from him where as now he can reserue nothing of comen right Howbeit notwithstanding that this statute of Quia emptores terraruÌ„ made it lawfull for all other mens tenauntes Yet was it not lawfull by the said statute for the kings tenants so to doe that is to saye neither to alien the whole nor any parcel therof without the kinges licence And that appereth by Bracton fo 88. Which speakes generally that the kings tenantes in chief cannot dismember his fees wtout his licence And because that before the time of king Edw. the firste they might haue aliened without licence to holde of themselfes as other mens tenauntes might haue done in the like case thinking it more lawful for them so to doe after the making of the said statut of Quia emptores thaÌ„ before it was thought good to prouide some stay for the same by this statut of Prerogatiue And yet by the woordes of the other chapter folowing it appereth that the kings tenant by grand serieantie could neuer haue aliened any lands holden by grand seriantie wtout the kings lyceÌ„ce For that was so high a seruice as Bracton in his first booke in the title de magnis seriaÌ„ciis names it Regale seruicium saith it was first inuented wtin this realme in the time of the Conquest that they coulde not dismember any parte therof without the kinges lycence For he saith in another place in the said booke amongest his writes of particion Quod seriantia diuidi non debet ne cogatur Rex accipere seruiciuÌ„ suuÌ„ per particulas Howbeit since the makinge of this statut of Prerogatiue sundry opinions haue risen in these matters as may appere by the statut made in the firste yere of king E. 3. ca. 12. Which saith in this maner Item pur ceo que plusours gents du Realme soy pleinont deste greues de ceo que terres et tenemÌ„ts que sont tenus en chiefe du roy et aliens sans son conge ount este pris auaunt ceux heures en mains le roy et tenus come forfets le roy ne les teigne my coÌ„e forfets en tiel case mes voet et graunt que desormes de tiels terres et tenementes aliens soit reasonable fyne pris en le chaÌ„cerie per due proces So that by this statute it appereth they toke the landes to be forfeted that were holden of the kinge in chiefe and aliened without his licence And so it appereth by a booke in .14 E. 3. wher Wilby saith that at this day landes holden by graund seriantie and aliened without lycence be forfeted 14. E. 3. in Fitz ti Quare imp p. 54. For the seruice of one mans body cannot be chaÌ„ged into another mans body without the kinges assent Also in the said first yere of king E. 3. the. 13. chap. It is prouided in this wise Et auxi come plusors gents du people soye plenont deste greues per purchase de terres et tenÌ„ts que ont este tenus des auncestors le roy que ore est come des honours et mesmÌ„s tiels tenements on t este prises en le maine le roy auxi si come ils eussent este tenus du roi en chief come de sa