have execution thereof as if no such gift had been made Stat. 3. H. 7. 4. All deeds of gift of goods and chattels made of trust to ones own use shall be void Stat. 13. El 5 Every gift grant bargain and conveiance of lands or chattles or of a lease rent common or other profits out of them and every bond suit judgment and execution had or made for the defrauding of any persons just action suit debt account damage penaltie forfeiture heriot mortuarie or releif shall be void against that person his heires executors c. The parties or privies knowing such a fraudulent gift which shall justifie it to be done bona fide or shal alien such things so to them conveyed forfeit one year value of the lands or profits out of it and the whole value of the goods nad chattles and the sum of such covenous bond and shall have half a years imprisonment This Act extends not to common recoveries nor vouchers in a Formedon nor to any gift c. bona fide and upon good consideration to any person not knowing of the fraud Stat. 27. El. 4. Every conveyance grant charge lease estate incumbrance or limitation of use of lands tenements or hereditaments made for the defrauding of purchasers of the land it self or any part or profit out of it shall be void against the person so purchasing for money or other good consideration and against all claiming under him with penalty as in the former Statute This extendeth not to the avoiding of any grant c. upon good consideration and bona fide If any such conveyance c. be made with a clause of revocation or alteration at his pleasure by writing and after he shall bargain demise sell grant convey or charge the same lands c. for money or other good consideratiâ—n the conveyance not revoked nor altered then such conveyance c. shall be voyd against the bargainees c. and all claiming under them lawfull mortgages only excepted Rule 11. Praecog Reg. 15. 17. E. 2. The Kings gift or grant of land or a Mannor cum pertinentiis â—â—nveyeth not Knights fees advowsons or dowers without expresse words Stat. 1. H 4. 6. In a petition to the King for lands annuities offices c. their value shall be therein exprest otherwise the letters Patents thereupon shall be void Stat 18. H. 6. 1. All Letters Patents which bear not date the day of the delivery of the Kings-warrant into the Chancery shall be void Stat. 34. 35. H. 8. 21. A confirmation of all estates contained by or conveyed from the King within seven years after the fourth of February in the 27 year of his raign notwithstanding any mis-recitall non-recitall c. with divers provisoes c. therein contained Stat. 1. E. 6. 8. Such another Statute for the confirmation of all grants made and to be made by E. 6. from the 28 of January in the first year of his raign and so during his life with such provisoes c. as in the sayd Act of H. 8. Stat. 4 5 P.M. 1. Another like Statute for the confirmation of grants made and to be made to or by the Queen or the King and Queen from the first of July in the first year of her Reign and so during her life with provisoes as in the former Acts. Stat. 18. El. 2. Another like confirmation of al grants made to for or by the Queen or to be made within seven years next after the end of this Session with like provisoes c. Stat. 43. El. 1. Another confirmation of grants made by Qu El. from the eight of February in the 25 yeare of her raign untill the end of this Session and a year after Stat. 21. Jac. 25. The King c. shall not take advantage of Forfeitures against his Patentees before Commission Processe c. Stat. 21. Jac. 29. A confirmation of Leases of the Duchy lands in Cornwall Stat. 1. Car. 2. Such another for Leases thereof to be made within three years CHAP. 3. Rule 6. STat. 32. H. 8. 34. Grants of Reversions may enter upon Farmers for any Forfeiture or condition and have like advantages against them by action onely for any other Covenants condition or agreement eontained in the Indenture of their lease as the Lessors their heirs or successors might And the like for the Lessees against the grantees of reversions Recovery in value only excepted CHAP. 4. Rule 9. STat. 6. H. 8 15. If any make suit to the King for lands offices or other things formerly granted to any person during the Kings pleasure the first Patentee being still in life the last grantee shall expresse in his Petition or pattent the former pattent and the determination of the Kings pleasure concerning the same otherwise the last grant shall be voyd Rule 15. Glocester 7. 6. E. 1. If a woman alien her dower in fee or for life the heir or other person to whom the Land ought to revert shall recover against the Alience in her life time CHAP. 5. Rule 5. MErton 9 20. H. 3. A child borne before Marriage is a bastard albeit the common order of the Church be otherwise Stat. 9. H. 6. 11. No writ shall be awarded to the ordinary to certifie Bastardy before three Proclamations be made in Chancery in three moneths viz once every moneth that all persons who have any thing to object against the party for bastardy shall sue to the Ordinary for that purpose Rule 8. Merton 5. 10. H. 3. Usury shall not run against any within age from the time of the death of his Ancestor whose heir he is unto his lawfull age yet the principal with usury due before the Ancestors death shall be paid notwithstanding this Act. Rule 10. Stat. 32. H. 8. 33. The dying seised of a disseisor with force and without title taketh not away the entry of him and his heirs who at the time of such discent had good title of Entry unlesse the disseisor had peaceable possession by five years next after such disseisin Rule 14 Westm 2. 1 13 E. 1. The will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed so that they to whom the land was given under such condition viz. that if the donee or donees should die without issue that then the land should revert to the donor should have no power to alien the land so given but that it shall rename to their issue after their death or shall revert to the giver or his heirs if issue fail neither shall the second husband of any such woman being donee in tail from henceforth have any thing of the land so given upon condition after the death of his wife by the Law of England neither shall the issue of such husband and wife succeed in the inheritance but immediatly after the death of the husband and wife to whom the land was given it shall returne to their issue or to the giver or his
heirs as aforesaid A Fine levied of such lands shall be void in Law and the heir or reversioner albeit they be for full age in England and out of prison need not make their claim Howbeit this clause concerning a fine is altered by 32 H 8. 39. which see infra Stat. 34 35. H. 8 20. No common recovery 〈◊〉 lands in tail of the gift or other provision of the King or his progenitors though it be with voucher against tenant in tail the remainder or reversion being 〈◊〉 the King at the time of the recovery shall bind the heir in tail or bar him of his entry Tenant in us◠shall take no advantage for any rccompence in valor agianst the vouchee or his heirs Rule 24. Mag. Cart. 7. 9. H. 3. The wife after the death of her husband shall abide in his chief messuage forty dayes within which time her dower shall be assigned her If the chief messuage be a Castle then she shall have a competent house provided her til her dower be assigned Westm 2. 34. 13. E. 1. A woman that leaveth her husband and abideth with an adulterer shall not have Dower unlesse the husband voluntarily and without coertion of the Church reconcile her and suffer her to dwell with him Stat. 11. H. 7. 20. If a woman that hath an estate in Dower for life or in tail joyntly with her husband or only to her self or to her use in any lands c. of the inheritance or purchase of her husband or given to the husband and wife by the husbands ancestors or any seised to the use of the husband or his ancestors do sole or which an after taken husband discontinue or suffer a recovery by Covin it shall be voyd and he to whom the land ought to belong after the death of the said woman may enter as if the woman were dead without discontinuance or recovery Howbeit the woman may enter after the Husbands death but if the woman were sole the recovery or discontinuance barreth her for ever This Act extends not to any recovery or discontinuance with the heir next inheritable to the woman or by his consent of Record enrolled Stat. 27. H. 8. 10. Where an estate is made in possession or use to Husband and wife and his heirs or the heirs of their bodies or of one of their bodies or to them for their lives or for the wives life for her Jointure In any of these cases she shall not have Dower Howbeit upon a lawfull eviction of that Jointure she shall be endowed according to the rate of her husbands land whereof she was dowable Such a Joynture being made after marriage the wife after the husbands death may refuse it and betake her to her Dower unlesse such Joyntute be made by Act of Parliament CHAP. 7. Rule 7. STat. de districtione Scaccarii 51. H. 3◠The owner of impounded cattel may give them food without disturbance A distresse taken for the Kings debt shall not be sold within 15 dayes and upon shewing of a Tally and giving security for his appearance in the Exchequer upon the next accompt the distresse shall cease◠The Sherif shall also attach the party that received the debt to be there likewise at the same time Neither draught cattel nor sheep shall be distrained except for Damage-feasant so long as other goods may be found to satisfye the debt Distresses shall be reasonable The Sheriffe shall answer all debts received and where the Sherif chargeth himself the debt shal be quitted Marlebr 15. 52. H. 3. It shall not be lawfull for any except the King and his officers having special authority to take distresses out of his fee or in the Kings high way or in the common street Marlebr 4. None shall drive a distresse out of the County wherein it is taken in pain to be fined and to make recompence to the party grieved none shal take an unreasonable distress in pain of amerciament Westm 1. 16. 3. E. 1. None shall drive a distress out of the County or distrain wrongfully upon the penalties provided by the Statute of Marlebr Westm 2. 36. 13. E. 1. None shall procure any to distrain another to make him appear at the county court or any other inferiour court on purpose to vex him and put him to charge and trouble in pain to make fine to the King and to pay the party grieved treble damages Westm 2. 37. 13. E. 1. No distresse shall be taken but by Bailiffs known and sworn in pain to restore damages to the party grieved and to be grievously punished by the King Artic. Cler. 9. 9. E. 2. Distresses shall not be taken in the High-way nor in the ancient fees of the Church Stat. 1 2. P.M. 12. No distresse of Cattell shall be driven out of the hundred rape wapentake or lath where it is taken except to a pound Overt within the same Shire not above three miles distant from the place where it is so taken Neither shall a distresse be impounded in several places whereby the owner may be constrained to sue several Replevins for the delivery thereof in pain to forfeit to the party grieved for every offence committed against the Act. 5 l. and treble damages None shall take above 4 d. for the poundage of one whole distresse and where lesse is usually taken to take lesse in paine to forfeit it to the party grieved 5 l. and so much money as is taken above 4 d. Rule 24 Quia emptores terrarum 18. E. 1. In all Feoffments to one and his heirs the Feoffee shall hold his land and the chief Lord of the fee by the same services that the Feoffer held before Here if the Feoffment be made of parcel he shall hold of the chief Lord pro particula according to the quantity of the land and the Feoffor shall be set free for that part Rule 27. Mag. Cart. 31. 9. H. 3. If a Baronie c. Escheat to the King the tenants that hold of the same not having other lands that hold of the King in cheif shall pay like relief and do like services to the King after such Escheat as they payd or did to their former Lords and not otherwise Stat. 1. E. 6 4. So also it is when a Seigniorie cometh to the King by attainder conviction outlawry dissolution or surrender Stat 1. E. 3. Stat. 2. Cap 12. Lands holden of the King in chief and aliened without licence shall not be forfeited but a reasonable fine shall be taken of such lands so aliened by due processe in Chancery A◠cap. 13 lands holden of the King as of some Honor sh◠not be taken into the Kings hands as if they were holden of the King in chief as of his Crown Rule 31. Stat. 33. H. 8 22. A fee set down for respiting of Homage in the Exchequer or other Courts Rule 35. Marlebr 9. 52. H. 3. None enfeoffed b◠deed shall be distrained to do suit to his Lords Court unlesse he be bound to
Writs of admeasurement both of Dower and Pasture after the great distresse proclamation shall be made two County dayes whereupon if the party come the plea shall proceed if not admeasurement shall be made in his default Westm 2. 8. 13. E 1. when the same party after admeasurement another time surchargeth the Common a writ to enquire of that second surcharge shall go 〈◊〉 either judiciall if the former admeasurement were before the Justices or otherwise Originall out of the Chancery and the beasts surcharging the Common or their value shall be answered to the King Rule 24 c. Marlbr 21. 52. H. 3. The Sheriff may replevin beasts not only without but within a liberty also if the bayliff of the liberty will not do it Westm 2. 2. 13. E. 1. The sheriff or bayliff shall take pledges of the plaintiff before they make deliverance of the beasts not only de prosequendo but for return in them if a return be adjudged he that taketh pledge otherwise shall answer the price of the beasts Upon a return awarded to the defendant the writ de returno habendo shall have this clause that the Sheriffe shall not deliver them without writ wherein mention shall be made of the Judgment and thereupon he may if he will hare a judicial writ to the Sheriffe to deliver him the beasts but if afterwards the Plaintiffe desire to replevie his Beasts again he shall have a Judiciall writ viz a writ of second deliverance that the Sheriffe taking surety for the suit also for the beasts to be returned or their price if return be awarded shall deliver the beasts before returned and the distrainor shall be attached to come before the justices at a certain day and if he that replevied make default or for some other cause return of the dissresse is awarded being now twice replevied the distresse shal afterwards remain irrepleviable Stat. 1. 2. P.M. 12. Every Sheriffe of a Shire being no City shall at his first County-day or within two moneths after receit of his patent proclaim in the shir-town four deputies at least dwelling not past 12 miles one from another which in his name shall make Replevins as the Sheriffe might do himselfe Rule 30 Stat. 2. E. 3. 3. Commissions of Oyer and Terminer shall be only granted to the Justices of the one Bench or other or to Justices errants CHAP. 36. Rule 1. STat de quo warranto 18. E. 1. Pleas of quo warranto shall from hencforth be pleaded and determined in the Circuits of the Justices See also Stat de quo warranto novum Rule 3 c. Stat. 36. E. Stat. 1. 13. No Escheator shall take enquests of office but indented between the Jurours and him otherwise they are void Stat. 33. H. 8. 22. No Escheator shall sit virtute officiâ— only to find an office of lands holden of the King of 5 l. value or above in pain of five pounds Stat. 8. H. 6. 16. No escheator shall take inquests bâ— of people impannelled by the Sheriff and those enquests must be returned within a month after the taking in pain of 20 l. so also of Commishoners Stat. 23. H 6. 17. An Escheator shall take an inquest virtute brevis within a month after the delivery of the writ unto him his fees are there also set down Stat. 1. H. 8 8. He shall not sit unlesse he have land c. to the clear yearly value of 40 marks in pain of 20 l. He shall not delay to take the Verdict when the Jury offers it in pain of 100 l. so also of Commissioners He shall not be Escheator again within three years after that year ended Stat. 36. E. 3. Stat. 1. 13. A traverse is given to the party whose lands are seized by office of alienation without licnece or the nonage of the heir in Ward It shall be sent to the Kings Bench to be tryed Stat. 69. E. 3. Stat. 1. 13. Upon a traverse of monstrâ—â— de dron the Chancellor may let him that tenders it the lands holden to farm finding surety to do to waste Stat. 8. H. 6. 19. They shall not be let to farm till the inquests returned nor within a month after withoâ—â— which time the party grieved may have the benefit oâ— the former statute All Letters Patents within the moneth shall be void Stat. 18. H. 6. 6. All Letters patents made of lands oâ— tenements before office found and returned shall bâ— vo d. Stat 1. H. 8. 8. Divers good provisions concerning â—â—cheators Commissioners Jurors and Offices and thâ— manner of returning offices into the petty bagg Stat. 1. H. 8. 10. Lands soiled into the Kings hand by office shall be let to farm to him that tendred to traverse the same within three moneths after such office found notwithstanding the Statute of 8 H. 6. 16. Stat. 2 3. E. The estates and interests of others shall be saved though they be not found in the office where an heir of full age is found within age he shall have a writ de aetate probanda and may proceed to sue out his livery or ouster le main as his case is and receives the profits of his lands notwithstanding such office found Where after the Kings tenants death more hiers then one are found or if one be untruly found a Lunatick Ideot or dead the party grieved may have his traverse as in other cases of untrue Inquisitions A Traverse of Monstrans de droit is given without peition though the King be titled by double matter of Record When the Jury finds de quo vel de quibus Ignorant or per quae servitia ignorant the first shall not make a tenure of the King nor the last tenure in Caâ—ite but in such cases a Melius inquirendum shall issue forth traverse given to an ofice where a wrong tenure is found the rents of mean Lords shall be paid during the nonage of the Ward by the officer that receives the revenue of the Wards lands Artic de super cart 19. 68 E. 1. When the Sheriffe or Escheator seize land into the Kings hand without cause upon ousting of the Kings hands the party shall have the mesne issues Stat. de Escheatoribus 29 E. 4. 3. If the Escheator by writ out of the chancery seize land into the kings hand and after upon Inquisition no title is found for the king to have the Custodie an ouster le main shall be awarded for the party out of the Chancery Provided that if any thing afterwards may be found in the Chancery Exchequer or K. Bench for the King a scire facias shalâ— go out against the party and if the King have right 〈◊〉 shall be answered of all the issues from the time of thâ— Escheators first seisiing of the land Stat. 23. H. 6. 17. In a scire facias upon a traversâ— against any Patentee no protection shall be allowed Rule 11. Stat. 28. E. 3. 4 The rents given to theâ— that sue livery when the rent day
if after the fathers death he enter before his younger brother born of the same father and mother within Espousals and continue the possession all his life without interruption VI. If the next be women in equal distance as daughters Sisters Aunts c. they shall inherit alike and are but as one heir VII Where the generall Entry of one is of the rest if they list VIII The inheritance that descendeth shal be charged with the deed of the Ancestor binding himself and his heirs IX The Dying seized of the inheritance and Freehold together whereby the land descends unto his heir taketh away the Entry of every one that may have an Action X. But claim upon the land within a year before the death or if they dare not upon the land for fear of some bodily hurt then as neer the land as they dare saveth their entry XI A Fee-simple is a Fee-simple conditionall or absolute XII Conditionall is a fee simple to one and the heirs of his body XIII This estate before issue cannot be alienated after issue had becometh an absolvte fee simple XIV But so as if the issue fail before the alienation the donor shall have it XV. Hither belong hereditaments given in Frank-marriage with ones kinswoman XVI Absolute is a fee-simple to one and his heirs whatsoever XVII This estate descending to Females if one of them have lands of the same Ancestor by Frank-marriage she shall have no more unlesse she be content that the value thereof be allowed to the other XVIII To this place are to be referred Lands given to a Corporation which go in perpetuall succession XIX Here two speciall estates for life Dower and Tenancie by the courtesie of England do arise after ones death that hath an InheritaÌ„ce joyned with the freehold XX. Howbeit these estates must be of a fee-simple or such an estate taile as may go to the issue had between the Donees XXI Dower is an estate whereby the woman hath the thirds in severalty XXII She must be nine years of age at the time of her husbands death otherwise she shal not be endowed XXIII Detaining of deeds concerning Inheritance descended to the heir is a barr of her Dower XXIV If the husband at the Church door ad ostium ecclesiae or being heir apparant by his fathers or mothers consent ex assâ—nsu patris or matris presently upon affiance endow her of any certainty as of the whole moity or lesse part c. this will barr her of her thirds if she agree to it XXV Tenancie by the curtesie of England is an estate whereby of an actuall possession the husband that hath issue by her born alive shall have the whole CHAP. VI. Tenement Advowson I HEreditaments are tenements or bare hereditaments II. A Tenement is a possession holden the Fee-simple whereof when he that hath it dieth without heir cometh to the Lord III. Of this sort are Lands and Advowsons IV. Land is a Tenement in Mannuall occupation V. Under the name of Land are comprehended not only Gardens Meadowes Pastures Woods Rivers c but also Messuages Mils Yards Tofts Castles the like VI. Churches and Church-Yards belong to the Incumbent VII Prescription here hath no force VIII All Land is holden of the King immediatly or by means himselfe not having any higher upon earth of whom to hold IX Escheats of all Cities appertain to the King X All Mines of Gold and Silver or wherein the gold or silver is of the greater value are the Kings XI Amongst Coperceners the eldest upon partition shall have the cheif house XII Seisin delivered of land alwaies passeth a freehold XIII Otherwise a Freehold of land cannot passe save by release and confirmation where they are by way of enlarging an estate XIV They may also somtimes passe by Exchanges Endowments or Surrenders XV. An estate made within view of land is a good Liverie of seisin if the other enter in the Feoffors life time XVI An Advowson is an interest of presenting to a Church CHAP. 7. Distres Seigniories Fealty Rent-service Homage Suit of Court Tenures Releife and Rent charge I. RAre Hereditaments are those which are not holden and concern the Land or the person II. Those that concern the Land are extinguished or gone for ever when he that hath them hath high and continuing an estate as he hath the hereditaments III. Otherwise they are but suspended or gone for a time IV. These are leviable by distresse or such as cannot be distrâ—ined for V. Distresse is a taking of Chattels found upon the same Land for satisfaction of Arrearages VI. The King may distrain in any other land of the same mans for his Service or Rent charge VII The distresse being put in some place where the owner may lawfully come by them as if they be things that have life to give them meat c. he that distraineth shall not be charged what hurt soever they receive VIII Bare hereditaments that may be distrained for are a Seigniorie or rent charge IX Seigniories are services whereby Lands are holden X. Services are common to all certain estates or proper to inheritances XI Common as Fealty and Rent service whereof Fealty is incident to every such estate XII And therefore the Seigniory or Tenancy being altered it must be done anew XIII All other both common and proper grow by Reservation XIV Fealty is an Oath to be faithfull to the Lord for the Tenements XV. Rent service is a Rent to be paid to the Lord at certain set times XVI And to this place we may refer all services that lie in Fesance XVII Of which kind two amongst the rest are specially to be considered viz. Frank-Almoign and Divine Service XVIII Frank-Almoigne is when a man of the Church holdeth freely in Alms for which he is bound to say Prayers XIX But because the Prayers are not limited in certain he neither shal do Fealty nor is subject to distres XX. The lord must warrant such a Tenant against himselfe and his heirs and save him harmlesse of all manner of all services against the Lords above XXI Divine service is a spirituall kinde of service limited in certain XXII These are the services whereby every certain estate may be holden XXIII There follow those proper to Inheritances the Grantee whereof shall hold of the Grantor by such services as he holdeth over if other services be not reserved XXIV Or the Grantor may appoint him â—o hold of the next Lord. XXV A Mesn must acquit the Tenant of all manner of services against the Lords Paramont XXVI But Donors in Frankmarriage cannot hold but by Fealty and that of the Donor untill the Fourth degree be past who must also acquit them of all manner of services XXVII One that holdeth of the King as of his person alienating the Free hold without licence forfeiteth the Land XXVIII Services proper to Estates of Inheritance are Homage and Suit or Court XXIX Homage is an Oath of fidelity acknowledging himselfe to
original processe is that which is so by his goods as for want of goods resort may be made somtimes to his land and somtimes to his person and somtimes to both XXIII Those of the first sort are in all other real actions and in all personal actions except trespass and offences against the Publique and in all Justicies Summons by the goods Attachment or a Pone per vadios c. and a distresse infinite XXIV Distresse infinite is a processe to distrein him continually after till he do appear by certain of his goods and profit or issues of his lands which he loseth if he appear not XXV Upon his distresse must be returned in issues the value of all his lands from the Teste of the writ until the day of the return XXVI With these issues the land is chargable XXVII In such processe as these if the defendant be a beneficed Clerk he must be warned by his person or land if he have any Lay-fee otherwise processe shall go out to the Ordinary to make him appeare by the issues of his benefice XXVIII Here also if upon the summons a nihil be returned viz. that the party hath nothing whereby to be summoned in such case there shall issue forth a continual Capias XXIX But a Capias lieth not here against a Peer of the Realm because by common intendment he must have free-hold XXX In a Replevin in the County Court if the goods be conveyed away so as at the tenants suit they connot be restored processe of withermâ—â— â—ieth which iâ— for the Plaintiffe to have of the otheâ—s goods until restitution of his own XXXI Those of the second sort arâ— in all trespasses upon the case and in all offences in the nature oâ— trespasses upon the case an Attachment distresse inâ—nite and upon nihil returned a continual Capias as before XXXII Here for contempts a Capias lieth againsâ— Peers of the Realm XXXIII Those of a third sort are in trespasse 〈◊〉 and offences against the publique Attachment distresâ— infinite and upon nihil returned three Capias Exigeâ—â— and Outlawry CHAP. 38. Improper Original processe Commandatorie I. THus far of proper original writs which begin aâ— Action besides which there are certain other â—riginals out of the Chancery which are not deductory to bring any matter into plea or solemn action but only commandatory or prohibitory to do or to leaâ—â— something undone II. Upon these writs no processe lieth and therefore they may be termed Improper Originals III. The Commandatory writs of this nature anâ— these that follow IV. De Dote assignanda which is for the wife of the Kings tenant when the King is entitled by office 〈◊〉 land where she is dowable V. This writ is alwayes directed to the Escheator anâ— may be either to deliver her such part of her land as iâ— already assigned to her in the Chancery for her dowerâ— or for the Escheator himself to assign her part unto her VI If her husband held in cheif then she must first take an oath in the Chancery not to marry without the Kings license VII De Homagio capiendo which is for the tenant by Homage Ancestrel to compel the Lord to receive his homage VIII De scutagio habendo for the Lord to have Escuage of his tenants by Knights-service when the same is due upon a Voyage Royal c. IX De auxilio ad filium suum militem faciendum filiam maritandam for the Lord to have such aid of his tenants where it is due X. De Corodio habendo to have a Corodie for his servant XI De annua pensione habenda to have a pension granted to his Chaplain until he be promoted to a benefice XII De libertatibus all ocandis for one single person or bodie corporate in pleaded before the Kings Justices to have the liberties formerly granteâ— unto them to be allowed XIII De executione judicii to have a judgment executed and this is a Justicies XIV De restitutione temporalium where the temporalties before seized into the Kings hands are to be restored to a Prior or Bishop elect and consecrate XV. De securitate pacis for him that is in fear of corporal hurt or of the burning of his houses to be secured of peace in that behalf against the party whom he feareth where a corporal oath must be taken by him that standeth so in fear XVI De vi laica removenda to remove all Lay-force in any Church XVII Of cleansing streets to have the wayes streets and lanes of a Town corporate to be made clean when they be apt to cause infection by their nastinesse and stench XVIII De leprosâ— amovendo to remove a Leper or Lazer that will come abroad from the company of men to some solitary place of abode XIX De excommunicato capiendo upon a significavit viz. the Ordinaries certificate iâ—to the Chancery that one excommunicate standeth out 40 dayes to imprison him until he satisfie holy Church And this writ also is a Justicies XX. De excommmunicato deliberando to deliver him out of prison when the Church is satisfied XXI De cautione admittendâ— when one taken by an excummunicato capiendo offereth sufficient pledge or caution to obey holy Church which is refused to have that caution addmitted and to be delivered XXII De heretico combuâ—endo to cause one convicted for an heretique to be burnt XXIII De coronatore eligendo to choose a Coroner in full County by the free-holders of the County XXIV De coronatore exonerando to discharge a Coroner of his Office upon just cause XXV This writ is directed to the Coroner himself XXVI De electione viridariorum Forestae to chuse a Verdor of the Forest XXVII De â—exoneraeado viridario Forestae to discharge a Verdor of the Forest XXVIII Conge d'eslire to Dean and Chapter oâ— such like to chuse their Bishop XXIX A writ for the Royall assent to signifie to the Ordinary his assent to the election of an Abbot c and to will him to execute that which belongeth untâ— him XXX This is alwayes directed to the Ordinanâ—â— himself XXXI De securitate invenienda quod non se â—â—vertat in partes exteras sine licentia Regis to compel onâ— to find sufficient mainpernors in a reasonable sum oâ— money not to go in forreign parts without the Kings license nor any thing there to attempt in contempt or prejudice of the King or hurt of the people nor to send any thither for any such cause XXXII All Dedimus potestatems the principal of which are these that follow XXXIII Dedimus Potestatem to give the Kings Royal assent to the election of an Abbot or the like made or to be made and to signifie so much by his letters to the Ordinary that he may do that which belongeth to him and to receive fealty c Commanding the party to do the premises XXXIV Dedimus Potestatem de fine levando to certain persons to take the acknowledgment of a fine out
the very time of the exchange XLI In partition amongst co-perceners from the death of the ancestor XLII The King shall not be vouched but prayed in aid off which in case hath the force of a Voucher XLIII So is it also of co-perceners XLIV In an Assize of novel disseisin and nusance voucher lieth not unlesse the vouchee be present in Court and will by and by enter into warrantie XLV He that is impleaded in any action wherein he may vouch and doth not shall never have the benefit of a Warrantia Cartae XLVI Advantages in certain personal actions are Garnishment and Enterpleader XLVâ—I Garnishment is upon a writ of detenue when it be alledged by the defendant to have been upon a bailment by the Plaintiff and another or for another upon condition that other shall be brought in to shew whether by reason of that bailment himself or the Plaintiffe ought to have the goods chattels c. XLVIII Enterpleader is when divers bringing several writs of detenue ward or Quare impedit against the same person in the same County and for the same thing the rest shall answer him that brought the first writ XLIX The King may appoint any place he thinketh good to be a safeguard for all offenders flying tbither thaâ— they shall not be molested or compelled to answer which priviledged places have in former times been called Sanctuaries L. Thus far of dilatory Pleas Pleas to rhe action are such as go to the body of the matter and are Pleas in Bar or Confessions LI. Pleas in bar are those which are to bar the Plaintiffe of his action LII In these the defendant must make defence as tâ— say Defendit vim injuriam quando c. LIII But no such defence shall be made in Dower Assize of novel disseisin per quae servitia or Attaint LIV. The tenant may plead a warrantie in bar oâ— him that should warrant if he bâ—ing the writ LV. And though the tenant of the land be a stranger to the warrantie yet he may plead that he hath a third persons estate and so rebut by a warrantie made unto that person LVI But in writs of Dower the ancestors warrantie is no bar LVII A warrantie made by the disseisor at the time of the disseisin barreth not the heir and this is called a warrantie that commenceth by disseisin LVIII In an Assize of novel disseisin and trespasse the defendant pleading a title in bar must give colour of titlâ— to the Plaintiffe LIX In the giving of this colour these three things must be observed 1. It must be to the Plaintiffe not to a stranger or to the defendant 2. It must be of such a possession whereby he may maintain his action 3. The Colour must be a matter doubtfull in law or otherwise difficult to the Lay people LX. In real actions for the meer right when it is in respect of a disseisin done the tenant cannot traverse the seisin but may tender half a mark to the King to have it inquired by the Jurie and being found that the demandant was not seized in the time whereof he counteth that shall bar him for ever LXI The tenant cannot tender half a Mark against the King LXII The heir or executors in an action brought against them where they are chargable pleading a matter in their own knowledge which goeth in perpetual bar shall be charged as in their proper duty if it passe against them LXIII In Assizes of novel disseisin nusance mortdancestor Juris utrum and in indictments and appeals of felony the defendant may plead in abatement and over in bar or take the general issue also LXIV In Assizes of novel disseisin and nusance he may plead a speciall matter that amounteth but to a general issue LXV Upon Indictments of felony and treason the defendant being put to answer is not allowed Council if he denie the fact LXVI A presentment in the Leet or Sheriffes turn after the day of presentment bindeth the party for ever and is not traversable but in cases that touch ones freehold LXVII Therefore the course is to remove such presentments into the Kings Bench by a Certiorari where they may be traversed LXVIII Confession is when the defendant confesseth the Plaintiffes action to be good LXVIX The defendant confessing an Indictment of felony may accuse others of the same offence LXX One that flying to a Church or Church-yard and confesseth before the Coroner when he cometh the certainty of any bare felonie where life and member is to be lost before he be thereof attainted may abjure LXXI Abjuration is his oath before the Coroner himself to depart the Realm for ever at the time and place set him going the direct way theither tarrying there but one floud and ebbe if he can have passage and till he can so passe going every day in the sea up to the knees to assay if he may passe over and if he cannot passe within 40 dayes then to put himself again into the Church as a felon c. CHAP. 41. Replication Rejoynder Sur-rejoynder c. the issue and demurrer I. THus far the Pleas of the defendant the mutual pleas of both are the debating before issue or the issue it self ij Debating before issue is the discussing of the material things to draw it to some one issue iij. Of the first sort are replication rejoynder sur-rejoynder c. iv In an Assize against many if each take the whole tenancy severally and plead severall matters in bar or one Nul-tort and the other in bar the Plaintiffe at his peril must choose his tenant And then after issue for the whole the Tenancy shall be first inquired of and being found for the Plaintiffe then the other issue shal be enquired but being found against him and no title made against the tenant indeed the writ shall abate v. In an action of trespasse meer transitory although the defendant justifie by any speciall matter yet the plaintiffe may take issue that it was done de son tort de mesne viz. wrongfully by the defendant without answering to that matter vi If it be a trespasse upon land the defendant justifying in some other land then the Plaintiffe meaneth the Plaintiffe may make a new assignment vii An issue is when both the parties joyn upon somewhat that they refer to tryal to make an end of the plea. viii This issue is of the fact or of the law ix Of the fact when the proper contradiction of that which one alledgeth is set down by the other x After which if any insufficient pleading appear in the Record whether the issue be joyned thereupon which is called a Jeosaile or no the Parties must begin a new where the first defect was xi But no re-pleader shall be in an Assize if the Plaintiffe have disclosed a sufficient title xii If the tender of this issue come on the plaintiffes part the form is Et hoc petit quod Inquiratur per recordum or Patriam
c. xiii If on the defendants part then it is Et de hoc ponit se super recordum illud or super Patriam XIV Issue in a writ of Right cannot be joyned upon the meer right but by the party himself and this is called the joyning of the Mise XV. Where the Plaintiff in his his replication maketh title at large the Tenant may joyn issue upon the title by saying Veigne Assize sur le title and this is called a Pleading to the action at large XVI But in a personall action when the title of the Land cometh in question it lyeth not till issue ioyned and yet in that case it never lyeth for Tenant for life but only for tenant for years Bailiff c. XVII Aid in these actions shall be of the King before issue joyned onely XVIII This being a matter In fait viz. done in the country is tryable by the oath of twelve free and lawfull men of the same County indifferently chosen XIX Four of the Jury must be of the same Hundred XX. If the thing in issue lye in the notice of two severall counties and not of one only the Jury shall be made equall out of both XXI But upon an Indictment of an offence against the Crown the tryall shall never be by Joynder of Counties XXII But if the Defendant plead in any Action that the Plaintiff is a villeine regardant to a Mannor of his in in another County yet the same shall be tried in the County where the writ is brought XXIII Where a Peer of the Realm is party to the Action a Knight must be returned upon the Jury XXIV In a Court of Pipowders the tryall is by the Merchants XXV The Jury in a writ of Right is called the grand Assize being four Knights or others in default of Knights choosing of twelve unto them XXVI This Iury is called the Grand Assize because it alwaies consisteth of more then 12. viz. of 16. XXVII Upon tryall by Jury challenges are allowed for the parties if they will both to the Array to the Pols and are to be tryed by some of the jurors XXVIII If it be before any Iurors sworn the Court shall choose Triers but when any of the Iurors are sworn they must try it XXIX Challeng to the Array is when the Jury is not sufficiently impanelled XXX Upon iust cause of exception to the Sheriff afterwards to the Coroner the Court shall choose certain persons to return the jury who are called Esliors XXXI And then the parties shall never afterwards make any challenge to the array XXXII Challenge to the Poll is when any of the jurors are not fit to passe upon the triall XXIII This Challenge must be taken before the panell be perused and shall be tryed by two of the jurors chosen by the Court. XXXIV But Challenges that sound not in reproach of the juror shall be examined upon his Oath which is called examination upon Voire Dire XXXV He that challengeth the array if it passe against him or that he release it shall never challenge the polls without shewing cause presently which shall be tryed out of hand XXXVI After Challenge to a juror for one cause which passeth against the Challenger hee shall not challenge him for another XXXVII In Indictments and appeals of felony the defendant may challenge thirty five jurors without shewing cause and this is called a peremptory challenge XXXVIII When there lacketh some to fill the jury others of the same sort shall be taken till it be full and they are called a Tales XXXIX The Tales must be an even number and lesse then the principal Pannel as Decem Tales Octâ— Tales c. xl Every Tales must be of lesse number then the other as after an Octo Tales a sex Tales c. xli But in Indictments and appeals that touch life a Tales may be of a greater number then the principal pannel xlii The Jury being charged may neither eat noâ— drink but by leave of the Justices before their Verdict given xliii Doing so before they be agreed it maked their verdict void but after they are agreed it is onely finable XLIV The Jury upon arraignment acquitting onâ— that was found guilty of the death of a man upon an enquiry before the Coroners super visum corporis musâ— finde who did the fact XLV The Jury in an Assize of novel disseisin shalâ— inquire of the plea in abatement XLVI And therefore in such an Assize no plea iâ— abatement is answerable XLVII An Infant bringing an Assize if a matteâ— done in the same County be pleaded against him thâ— Jury shall inquire of all the circumstances XLVIII The like inquiry of the circumstanceâ— shall be if in an Assize brought against him he pleaâ— to the Assize at large XLIV If the tenant in a mordancester traversâ— any point of the writ yet the jury shall inquire of alâ— the points and any one found against the Demandanâ— abateth the writ L. For the better direction of the Jury in their verdict greater liberty is permitted in pleading a matteâ— doubtful in law LI. For somtimes a traverse may be omitted LII Sometimes also the speciall matter may bâ— pleaded together with the general issue LIII Likewise the Court may be abridged before verdict so as the original remain true LIV. After acquittal upon an appeal or indictment of felonie or treason he shall never be drawn in question for the same offence again LV. In writs of right and in appeals that touch life trial may be by battail at the defendants choice LVI The battail in a writ of right may be by Champions who must be freemen LVII Here the demandants Champion must have seen him or his ancestors in possession and thereof take his oath LVIII The battail in an appeal must be in proper person and therefore here the defendant is restrained from the choise of Battail and must needs try it by Jury if there be any notorious presumption of the fact in him or imbecility in the Plaintiffe Also against a Peer of the Realm bringing an appeal the defendant shall not wage Battail LIX In a writ of Dower issue taken upon the death of her husband shall be tried by witnesses LX. In some cases also the trial shall be by the defendants oath as 1. Where the tenant in a Praecipe quod reddat alledgeth that he was lawfully summoned according to the law of the land 2. In meer personal contracts growing without deed or privitie of others the defendant may wage his law LXI Therefore in such kinde of actions executors are not chargable LXII No wager of Law shall be against the King LXIII But wager of law may be upon plaints in Court Barons for personal things under 40 Sh. LXIV An issue of Law returned a Demurrer is when admitting the matters alledged either of them resteth in the judgment of the Court. LXV The demurrer being joyned upon an exception to the original it self or Count for fault appearing in
c. hath an Interest This Act shall not be prejudicial to Lords and Commoners in any part of wasts not assigned to Drainers c. nor to any Port or Haven CHAP. 9. Rule 3 STat. 19 H. 7. 15. Upon a feoffment made to the use of a Villein the Lord may enter into the land it self Rule 7. Stat. 9. R 2 2. In a suit by a Villein against his Lord the Lord shall not be barred of their Villeins because of their answer in Law Rule 11. E. 61. 6. 16. No office or deputation thereof or of any part thereof which concerneth the administration or execution of Justice or the receit controlement or payment of the Kings money or revenue or any accompt Aulnage Auditorship or Surveying of the Kings Lands or Customes or Administration or Attendance in any Custome-house or keeping of any of the Kings Towns Castles or Fortress being places of strength or defence or any Clerkship in a Court of Record shall be bargained or sold or any reward or agreement of Reward taken for it upon pain that the seller c. shall forfeit all his Interest in such office or deputation c. and the buyer be a disabled person to enjoy the same And all bonds c. to be void as against him by whom they are made Howbeit all Acts executed by any such person offending before he be removed from his Office c. shall remain good This sttatute extendeth not to any Office of Inheritance or to any parkership or to any offices to be given by the Chief Justices of the Kings Bench or Common place or by any Iustices of Assize CHAP. 10 Rule 2. STat. 27. H. 8 24. No subject shall have authority to pardon any felony or any accessories to felony or any outlawry for such offences Nor to make any justices of Eyre Assize Peace or Gaole-delivery All originall Writs Indictments of treason felonie tre passe and processe upon the same shall be only in the Kings name and the Teste in his name that hath the Franchise Every Writ and Indictment whereby any thing is supposed to be done against the peace shall be supposed to be done against the Kings peace onely and not against the peace of any subject the King shall have all fines issues amerciaments and forfeitures lost by any Officers of Franchises for non-execution or insufficient returnes of processe or for any misdemeanour concerning their office with many provisoes in the same Statute CHAP. 11. Rule 4 WEstm 2. 23. 13. E. 1. Executors shall have a Writ of accompt and the action and processe in the same writ as their testator should if he had lived Stat. 4. E. 3. 7. 1. Executors shal have an action for a trespass done to their testator as of his goods and chattels carried away in his life and recover their damages in like manner as he whose executors they are might have done if he had lived Stat. 32. H. 8. 1. He that hath lands tenements 〈◊〉 hereditaments in soccage and none holden by knight-service or soccage in chief may devise all by his waâ— in writing or give all by act executed in his life 〈◊〉 may he that hath land holden by soccage in cheif anâ— other land holden of a common person by soccage and none holden by Knight-service saving to the Kingâ— primer seisin relief suing of the same out of the Kingâ— hands fines for alienation c. and all other dutieâ— for the soccage in chief as before hath been accustomed He that hath lands c. holden by Knight service whether he have any other lands holden of the King or of any other person by Knight-service or orherwise or not may do the like for two parts in three to be divided in certainty for the advancement of his wife or children and payment of his debts saving unto the King the wardship or primer seisin of the third part without any charge dower c. and finds for alienation He that hath lands c. holden by knight-service whether of the king alone by knight-service not in cheif or of a common person or som holden of the king some of a common person and other land in soccage may devise by will or give by act executed in his life two parts of that holden by knight-service and all the soccage saving to the Lord of the land holden by knight-service the Wardship of a full third part thereof without any charge dower c. Provided that every one shall sue his liverie and pay his relief and heriot as if this Act had never been made Stat. 34. 35. H. 8 The former Statute shall be extended to enable devises and other Acts onely by Land in Fee-simple And if the partie that maketh the will or other Act be seized in Coparcenerie or in the common it shal be good for so much as in himselfe of right is The wardship relief primer seisin c. shall be of lands that descend immediatly after the death of him that maketh the will or other act as well in fee-fee-tail as fee-simple And the devise of two parts residue shall be good though it be of all his fee-simples land Such a will shall be good for two parts in case only where two may be devised though it be made for the whole or more then two parts Such wils made by a feme-covert infant under the age of 21 yeares Ideot or one of non-sane memorie shall not be good See also some other things there for the explanation of the former Act of 32 H. 8. 1. Rule 10. Stat. 21. H 8. 4. that part of the executors which take upon them the charge of a will may sell the land devised by the Testator to be sold albeit the other part which refuse will not joyn with them Rule 11. Stat. 25. E. 3. Stat. 5 5. Executors of executors shall have actions of debt accompt and goods carried away of the first Testators and Execution of Statute-Merchants recognizances made unto him And shall also answer for Assets as the first executors should have done Rule 12. Westm 2. 19. 13. E. 1. the Ordinarie shall satisfie debts wherein the Intestate was bound as executors should Stat. 31. E. 3 11. the Ordinaries shall depute next friends of the Intestate to administer his goods who shall sue and be sued and be accountable to the Ordinaries as executors should Stat. 21 H. 8. 5. Administration shall be committed to the widdow of the Intestate or to the next of his blood or to both at the discretion of the Ordinary The Oâ—dinary not doing his duty herein forfeiteth ten pound Stat. 43. El. 8. If any obtain goods of an Intestate fraud as by procuring administration to be granted a stranger of mean estate or not to be found and noâ— upon valuable consideration c. he shall be charge as executor in his own wrong as far as the goods debts extend Rule 20. Westm 1. 4. 3. E. 1. Where a man dog cat escape alive out of the Ship it