of him that was first menaced then assaulted Menacing beginneth the quarrell assaulting doth increase it battery accōplisheth it menacing laieth togither fire coales in the house of peace assault bloweth it maketh it burn And battery doth endeuor to consume the whole building to the ground And therfore because some sorts of menacing assaulting battery be professed enemies to the peace wherof I do write I will endeuor plainly to expres which be those menaces c. that the law doth inhibit in what sort by what means she doth restrain punish the offēdors therein 3 The law hath alwayes had that speciall regard to the preseruation of the peace of the Realme and of euerie member thereof that she could not endure neither would suffer one person so much as to menace or threaten another of life or member or of any thing tending to the breach of the peace And therfore she hath not only assigned in all countries places of this realm Sherifes Iustices of peace Constables Thirdboroughs and diuers other officers to be as watchmen continually attending bending their cares industries to preserue the peace and to defend each person from the violent sting of menace assault or batterie but also she hath giuen and prouided for him who is only menaced 40. E. 3. 40. an action of Trespas as she hath done for him who is assaulted or beaten wherby he shall recouer his damages so that the same menacing do tend to the hurt of him who was menaced his seruant tenāt or any other person by whom he liueth or receiueth benefit And therefore the plaintife in an action of Trespas of menace may declare That he is an Atturney The declaration in Trespasse of Menace and that in respect of the defendants menace he durst not attend his clients suites from such a day in M. vntill such a day in O. or that he is a husbandman and could not attend or ouersée his husbandrie or that he is a bailife or collector of rents and could not in respect of such menace 37. H. 6. 3. by the space of many monethes attend his bailiwick collection of rents or other businesses or that in regard of such menacing 30. Ass p. 14. he was not able nor durst trauell abroad to apply his trade or get his liuing without such force and defence as his estate was not able to maintaine As the collector of a fiftéene brought an action of trespas for the king and himselfe 27. Ass p. 14. against one and declared That the defendant did so rebuke him Rebuke in Assault that he durst not tarie in the towne to gather vp the fiftéene for feare least the defendant would haue beaten him And though the defendant did not beat him yet this rebuke was adiudged an assault and the plaintife recouered an C. s̄ in damages And in like sort one brought a bill of trespas in the Cōmon pleas for the king and himselfe 30. Ass p. 14. and declared That whereas hee was comming towards the Commō pleas to answer in a plea of land the defendant came and did so beat assault and menace him that hee durst not bring his writings or come thither without great charges in contempt of the king contrarie to his peace to the damages of the plaintife c. Whereunto the defendant pleaded not guiltie And the defendant was compelled to find pledges of his good behauior for the peace that he should not meddle with the plaintife by himself nor by any others Fitz. Trespas 159. openly nor secretly In an action of Trespas the plaintif declared That the defendant so menaced him in one county that he could not do his businesse in another county and this was adiudged a good declaration and it was ordered 37. H. 6. 2. that the issue shold be tried in the county where the menace was for there was al the trespas cōmitted the other county was put in only to increase the damages Li. Intr. 592 22. Ass p. 76. 20. H. 7. 5. 4 And in like sort if one man do menace or threaten the seruant of another Menacing a seruant whereby he departeth of life or member in such sort as the same seruant doth depart frō his master wherby the master doth for a time lose the seruice of his said seruant in this case the master shal haue an action of trespas declare against him that did so menace his seruant That he made assault vpon his seruant did beat him wound him and euil intreat him so often menaced to kill dismēber him did him so many iniuries wrongs that his said seruant durst not for such menaces for feare of being killed or maimed attend his businesse viz. the bailiwike of his husbādry his seruice in husbādry or kéeping of his horses beasts shéep c. And so his said busines seruice lay vndone the said pl. lost the seruice of his said seruāt frō the 20. day of M. vntil the 20. day of N. thē next following to his great damage against the K. peace whereof he cōplaineth that he is endamaged 20. l. And so note 7. E. 4. 24. 27. Ass p. 11. that a man shall not haue an Action of Trespasse for menace onely vnlesse he hath also thereby some other losse or hurt for the menace and the hurt which the partie doth sustaine thereby doe make the Trespasse and doe giue cause of the action of Trespasse But it is otherwise 20. H. 7. 5. if a man beat the wife or villaine of another for in those cases the partie wronged viz. the husband or Lord shall haue an action of Trespasse though hée hath receiued no losse nor hindrance in commoditie For hée must ioyne in suit with his wife to recouer recompence for the batterie and wrong done vnto her by the trespassor and also hee may punish him by action of Trespasse who beateth his villaine as hée may doe him who beateth his horse cow oxe c. Menacing a tenant whereby he departeth 5 And the same law is if one man doe so menace of life and member Li. Intr. 592 20. H. 7. 5. 9. H. 7. 7. the tenants of another which doe hold of him certaine lands and tenements at will paying to him therefore certaine yearely rent and seruices in respect of which menace the same tenants doe depart from their said tenements and leaue the said rents vnpaid and the same seruices vndone In this case the Lord or owner of the same tenements may haue an action of Trespas against such menacer in the Kings Bench or Common Pleas and declare of the sayd menacing of his tenants at will of their departure from his tenancies thereby and the losse and preiudice that he hath sustained by his rents vnpaid and seruices vndone and he shal recouer damages accordingly And in this case it is a good plea for the defendant Menacing
persons at the nomination and by the aduise of the Chauncellor of England And the said Commissioners incontinently shall send into the Chauncery the Enquests and matters before them in this behalfe taken and found Vpon the Cōmission the coronors shal returne the Iury 14 The Coroners of the same Countie for the time being St. 2. H. 5. 8. in which Countie such Riot Assemblie or Rout shall be made shall make the panell vpon the said commission retornable for the time that the Shirife so supposed in default shal remain in his office which Coroners shal return no persons but only such which haue lands c. to the value of x. l. by the yere at the least And also the same coroners shal return vpon euery of the said persons impannelled at the first day when issues be to be lost xx What issues shal be returned vpon the Iurors s. at the least at the second day xl s. at the least at the third day C. s. at the least at euery day after the double at the least which issues so returned because of non-appearance of such persons impanneled shall be forfait to the King and leuiable to his vse And if default be found in the said coronors touching the returne of such persons to be impanneled or touching the returne of such issues as afore is said euery of them shall pay to the Kings vse forty pounds Where the shirife shal return the Iury and not the coronors 15 And if the Shirife so reputed in default be discharged of his office St. 2. H. 5. 8. at the time that such commission shall goe out of the Chauncerie then the new Shirife of the same County his successor mediate or immediate and not the coronors shall make the pannell vpon this commission returnable in manner and forme as the said coronors should doe in time when the Shirife so reputed in default stood in his office And the same Shirife shall incurre like paine of xl li. to the King if any default in him be found touching the returne of other persons by him impannelled which haue not lands tenements or rents to the value of x. li by the yeare or of returning such issues as the said coronors be aboue charged to returne as the said coronors be to lose to the King in this behalfe A writ directed to enquire of a Riot 16 The Chauncellor of England as soone as he may haue knowledge St. 2. H. 5. 8. of such Riot assemblie or Rout shall cause to be sent the Kings writ to the Iustices of peace and to the Shirife or vndershirife of the County where they be so made that they shall put the foresaid Statute of 13. H. 4. in execution vpon the paine contained in the same And though such writ come not to the said Iustices Shirife or vndershirife they shall not be excused of the paine of 100. pounds aforesaid if they make not execution of the said Statute Riots shal be inquired of at the Kings costs 17 The Iustices and other officers aforesaid shall doe their offices at the Kings costs in going tarrying St. 2. H. 5. 8. and returning in dooing their said offices by payment thereof to be made by the Shirife of the same County for the time being by Indentures betwéene him and the said Iustices and other officers aforesaid to be made of the payment aforesaid whereof the said Shirife vpon his accompt in the Exchequer shall haue due allowaunce St. 2. H. 5. 8. 18 Such Riotors attainted of great and haynous Riots The punishment of Riotors shall haue one whole yeares imprisonment at the least without being let out of prison by baile mainprise or in any other manner during the yeare aforesaid and the Riotors attainted of petit Riots shall haue imprisonment as the King and his Councell shall thinke good St. 2. H. 5. 8. 19 The Kings liege people being able to trauaile in the Countie where such Riots assemblies or routs shall be made shal be assistant to the Iustices Each man shall helpe to represse Riots commissioners Shirife or vndershirife of the same County when they shal be reasonably required to ride with the said Iustices Shirife or vndershirife in aide to resist such Riots Routs and assemblies vpon paine of imprisonment and to make fine and ransom to the King St. 2. H. 5. 8. 20 The Bailifes of franchises Bailifes of Franchises shall impannell sufficient people as before vpon paine to loose xl li to the King in case that such sufficient persons may be found within the said franchises Corporat towns hauing Iustices And like ordinances and paines shall hold place and take effect in Cities Boroughs other places and townes enfranchised which haue Iustices of peace within them 21 Forasmuch as in the before rehearsed Statute of 13. H. 4. it is not expressed of what sufficiency the Iurors impannelled by the Shirife to inquire of Riots should be Nor what issues they should lose if they appeare not Nor any mention is made of any punishment the maintenors and embraceors of the Iurors that so shall be impannelled should haue for their misdemeanor A Iury to enquire of Riots if any should be St. 19. H. 7. 13. Therefore by a Statute made Ann̄ 19. H. 7. it was enacted that if any Riot Rout or vnlawfull assemblie be committed within this realme the Shirife hauing a precept directed to him shall returne xxiiij persons dwelling within the Shire where such Riot c. shall be so committed whereof euery of them shal haue lands and Tenements within the same shire to the yearely value of xx s. of Charter land or fréehold or xxvj s. viij d. of copihold or of both aboue all charges for to inquire of the said Riot Rout or vnlawfull assemblie And he shall returne vpon euery person so by him impanelled in issues at the first day xx s. at the second xl s̄ if that they appeare not and be sworne to enquire of the premisses at the first day And if default be found in the Shirife or vndershirife for returning of other persons being not of the same sufficiency or for not returning issues in forme aforesaid then the said Shirife shall forfeit to the King for either twenty pounds St. 19. H. 7. 13. 22 If the said Riot Rout or vnlawful assemblie be not found by the said Iury by reason of any maintenance or embracery of the Iurors Maintenance where by a Riot is not found then the same Iustices and the Shirife or vndershirife beside such certificat that they be bound to make according to the foresaid Statute of 13. H. 4. shall in the same certificat certifie the names of the mainteinors and embraceors in that behalfe if any be with their misdemeanors that they know vpon paine of euery one of the said Iustices and Shirife or vndershirife to forfait xx li. if they haue no reasonable excuse for not certifying of
of the Iurors and that the Iuror in respect thereof doth beare an extraordinarie affection and is to make a recompence to the same partie and that therefore in this triall hée will fauour him and be a meane of Periurie and therefore if the Iuror be challenged for that cause he shall be drawen And some doe affirme the same cause of challenge and feare of Periurie to be 7. H. 6. 40. 19. H. 6. 66. if a Iuror hath béene godfather to either of the parties to that triall or to any childe of his 14 The Lawe expecting to be satisfied per Veredictum Iuratorum of the trueth of such causes as doe come to an issue dooth carefully foresée that those Iurors who are to deliuer the trueth by their verdict Periurie suspected in respect of ignorance of the cause should either before the time of the triall vpon their owne priuate knowledge or by their Euidence at the time of the triall be certainely informed of that trueth of the thing in question lest by ignorance mistaking falshoode for trueth they should slide into Periurie And because those that be dwelling or haue some land where the land lease or thing in question doth lie are more likely to haue intelligence of the trueth of the cause in question both to satisfie themselues and informe their Companions than other strangers of the same Countie are who dwell farre off the Lawe hath ordained by the Statute of Anno 27. Elizab. That there shall be sixe sufficient Hundredors impannelled vppon euery Issue ioyned which is to be tried in any of the Courts of the Kings Bench Stt. 27. El. 6. Common Pleas and the Exchequer Want of Hundredors or before the Iustices of Assise in all cases where euerie Iuror by the auncient lawes of this Realme ought to haue fortie shillings of fréeholde at the least And that at or vppon the triall of any personall action there shall two sufficient Hundredors at the least appeare And for that cause if in those cases there be not so many Hundredors at the least the Lawe doth conceiue they be ignorant of the truth of the Issue in triall And to that end for the auoiding of Periurie she will reiect the whole Iurie if they be challenged And so it is in an Assise where the plaintife is to be put in possession per Visum Iuratorum if he recouer or in any action where the Iurie is to haue the view of the land in question 8. Ed. 3. 69. Fitz. Chall 102. 169. if the same Iurors Want of the view or some of them had not the view of the land in question nor did know it before the Lawe will suspect that they will commit Periurie if they should be sworne séeing they be ignorant of the land and know it not in specie And therefore vpon challenge they shall be remooued 1. R. 3. 4. 15 Because our Law-makers haue in seuerall ages found by experience that nothing is a greater motiue enticement Periurie in respect of pouertie or rather inforcement to Periurie than néede and pouertie Therefore they haue endeuoured by many Statutes to prouide that such as be returned of Enquests should not onely be men of good behauiour and credite but also of conuenient liueliehoode estate and abilitie to liue of themselues for that Necessitie which hath no lawe nor bridle should not compell them to sell truth for rewardes nor to plunge themselues into Periurie for bribes And for the preuention of this Periurie in poore persons and such as bee of meane and weake estate Stt. 21. Ed. 1 by a Statute made Anno 21. Ed. 1. it was ordained That no Shiriffe Vndershiriffe or Bayliffe of Libertie shall put in any Recognisaunces of Assises Iuries Enquests or Attaints Iurors impanelled that shal passe out of their owne Counties that shall passe out of their proper County any person of their Bayliwickes except he hath lands and tenements to the yearely value of a hundred shillings at the least or that shall passe within the Countie except hée hath lands to the yearely value of xl s. And for the same cause vpon the same reason of preuention of periurie in poore and néedy persons by a Statute made Anno 3. H. 5. it was established St. 3. H. 5. 3 That no persons shall be admitted to passe in any enquest vpon triall of the death of a man or in any enquest betwéene partie and partie in plea reall or in plea personall whereof the debt or dammages declared do amount to xl Markes if the same person hath not lands and tenements of the yerely value of xl s̄ aboue all charges so that he be challenged for that cause by the party But by the Statute of An̄ 23. H. 8. St. 23. H. 8. 13. euery person being the Kings naturall subiect borne which by the name of a Citizen a fréeman Iurors to try felonies in corporat townes or any other name doth inioy the liberties of any Citie borough or town corporat where he dwelleth being worth in goods to the cléere value of xl li. shall be admitted in triall of Murders and felonies in euery Sessions and gaoles of deliuery kept in and for the libertie of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this Act extendeth not to any Knight or Esquire dwelling abyding or resorting in or to any such citie borough c. And by the Statute of An̄ 27. Eliz. it was enacted Sta. 27. El. 6. That in all cases where any Iuror to bee returned for the triall of any issue or issues ioyned in any of the Courts of the Kings Bench common Pleas the Exchequer or before Iustices of Assise by the Lawes of the Realme now in force ought to haue estate of fréehold in lands Where Iurors must haue 4. li. land tenements or hereditaments of the cléere yerely value of xl s̄ in euery such case the Iurors that shal be returned shall euery of them haue estate of fréehold in lands c. to the cléere yearely value of foure pounds at the least out of auncient demesne within the Countie where the issue is to be tried By the Statute of 11. H. 7. it is prouided St. 11. H. 7. 21. That no person shal be impannelled summoned or sworne in any Iury or Enquest in Courts within the citie of London Iurors in London except he be of lands tenements goods or cattels to the value of xl Markes And no person shall be impannelled summoned or sworne in Iuries or Enquests in any Court within the said Citie for lands or tenements or action personall wherein the debt or dammages amounteth to the summe of xl markes except he be in lands tenemēts goods or cattels to the value of one hundred marks St 19. H. 7. 13. By the Statute of Anno 19. H. 7. it was ordained That euery of the xxiiij persons dwelling within the shire where any riot
take of any archbishop bishop or other persoÌ„ hauing charge with the collection and payment of the Tenth of Spirituall promotions any reward for making his account or Quietus est in the same Exchequer or for any thing concerning the Tenth he shall forfeit his office and make fine at the kings pleasure Extortion in a clerke of the signet oâ— priuy seale 13 By the statute of Anno 27. H. 8. it was established St. 27. H. 8 11 That all and euery Clerke and Clerkes of the Signet and priuie Seale shall haue and take for his or their writing of a warrant vpon a Bill for Tales of reward twelue pence for the writing of a warrant for the gift of euery office twenty pence for the writing of a warrant for a pention annuitie or wages twenty pence for the writing of a warrant for a speciall Liuery or other perpetuity sixe shillings eight pence for the writing of a warrant vpon euery bill for a Conge deslier royall assent restitution of Temporalties Donatiues Aduocations Presentations or other Ecclesiasticall matter thrée shillings foure pence for the writing of euery warrant vpon a Placard Licence Pardon or Shirifes reward two shillings for the writing of euery warrant vpon a denizen thrée shillings foure pence for the writing of a warrant for the kéeping of an ideot twenty pence for the writing of a warrant for the kéeping of a Ward thrée shillings foure pence And no Clerke or Clerkes of the Signet or priuy Seale aforesaid shall take for the writing of any manner warrant aboue specified more large and ample fées then is before prescribed vpon paine of ten pounds to be forfeited to the K. I. to be recouered by B.A.P.I. in any of the kings Courts wherein no E. P. W. shal be admitted Extortion by officers of the faculties 14 To the intent that the Clerke of the Faculties St. 25. H. 8. 21. and his inferior officers and clerks might content themselues with their fées duties assigned extort no more by the statute of Anno 25. H. 8. it was enacted That such as shall exact or receiue of any sutor more for a dispensation faculty or licence then is contained in the two bookes of one tenor of Taxes shall forfeit tenne times so much as he shall so extortiously receiue exact to the K. his heires successors the party that will sue to be recouered by A. B. P. wherein no E. W. P shal be admitted Extortion vpon prentices fréemen 15 Because no Extortion should bee committed vpon apprentices when they begin or end their termes by the stat of Anno 22. H. 8. Anno 28. St. 22. H. 8. 8 St. 22. H. 8. 5 H. 8. it was established That no Masters Wardens or Fellowships of crafts nor any of them shall take of any apprentice or other person for the entry of the said prentice into their said Fellowship aboue the summe of ij sÌ„ vj. d. nor for his entry when his yeares or terme is expired aboue iij. s. iiij d. vpon paine to forf for euery time that they or any of them shall offeÌ„d contrary to this act xl l. to the K. and the I. c. to be recouered by A. I. c. wherein no P. E. c. The fées of the officers of the court of wards 16 Because the makers of our lawes were willing to giue forewarning to the officers of the Court of Wards to eschew extortion St. 32. H. 8. 46. therefore by the stat of An. 32. H. 8. it was enacted That the master officers of the Court of wards liueries shal take for the fées of all proces at the suit of the parties vnder the priuy seale of the same court ij sÌ„ vj. d. for the fées of al coÌ„missions directed out at the suit of the parties ij sÌ„ vj. d. for recording of all apparaÌ„ces iiij d. no more St. 26. H. 8. 3 17 By the statute of Anno 26. H. 8. The fées for obligations for first fruits it was prouided to auoide Extortion in the officers of the first fruits That no person shall compell an other to pay for any writing obligatorie to be made for the paiment of the first fruits of Ecclesiasticall liuings to the King aboue eight pence nor for any acquitance for the receit thereof aboue foure pence 18 For that Eschetors should know what is their duetie for the finding of offices and for the execution of Writs Extortion by Escâ—cators to the intent that they might thereby the easlier shunne the danger of Extortion if they will by a statute made Anno 33. St. 33. H. 8. 22. H. 8. it was enacted That if any Escheator doth take aboue the summe of xv shillings for the finding of an office of any lands tenements or hereditaments not excéeding the cléere yearely valew of fiue pound viz. for the Escheators fée vj. sÌ„ viij d for the writing of the office iij. sÌ„ iiij d for the charges of the Iurie iij. sÌ„ and for the officers that shall receiue the said office in any court of Record ij sÌ„ he shall forfeit for euery time so offending v. l. to the K. and I. to be recouered by A. I. wherein no W.E.P. c. And by the statute of Anno 23. St. 23. H. 6. 17. H. 6. it was ordained That if an Escheator do take priuily or openly by himselfe or any other aboue the summe of xl sÌ„ for the execution of any Writ in one countie he shall forfeit for euery offence forty pounds whereof one halfe shall be to the King and the other to him that will sue 19 To preuent Exactions by the officers of the Admiralty vpon those who trauaile into other Countries St. 2. Ed. 6. 6 for the getting of fish Exactions vpon them who trauaile for fish by a Statute made Anno 2. Ed. 6. it was ordained That if the Admirall or any officer or minister of the Admiraltie shall exact receiue or take by himselfe his seruant or deputie of any merchant or fisherman any summe of mony doles or shares of fish or any other reward or benefite for any licence to passe this Realme into Island New-found-land Ireland or other places commodious for the getting of fish or for any other respect concerning the said voiages hée shall forfeit for the first offence treble the summe or valew of the reward so taken to the King and him that will sue for the same to be recouered by A.I. c. wherein no W.E.P. c. And for the second offence shall loose his office and make fine at the Kings pleasure 20 To the intent that the Marshall of the Marshalsey of the Court of the Kings house may take such fées in open Court as were wont to be taken in the time of King Edward the third and none other The fées of the Marshall of the K. house and may thereby omit to commit Extortion St. 2. H.
a due and accustomed place that is to say once after Easter and another time after the Feast of Saint Michael And because some Shirifes did hold their Turnes in Lent when men should attend their deuotion and other workes of charitie and sometimes after the Gule of August when most men be occupied in felling and carrying in their corne contrarie to the foresaid statute of Magna Charta St. 31. E. 3. 14 therefore by a statute made Anno 31. E. 3. it was enacted That euery Shirife should hold his Turne When the shirife shall hold his Turne yerely once within a moneth after Easter and at another time within a moneth after the feast of Saint Michael and if they hold their Turne in any other manner that then they shall loose their Turne for that time And so An indictment found in an vnlawful time if any man be indicted of Felony or other offence in the Shirifes Turne after the moneth of Easter 38. H. 6. 7. 6. H. 7. 2 and Saint Michael the Indictment shall be void because it is against the forme of this statute for the words of the statute be they shall loose their Turne for this time which is as much as if it had béen said their Turne holden at this time is void And by this statute it doth appeare when the Turne shal be holden to make a good Indictment 3 Because Shirifes did faine diuers times certaine persons to be indicted before them in their Turnes of Felonies and other Trespasses and did apprehend certaine persons that were not culpable nor lawfully indicted and imprisoned them to the intent to exact money from them whereas they were not lawfully indicted by twelue men For the preuention whereof by the statute of Westm St. 13. E. 1. 13 2. made Anno 13. Ed. 1. it was prouided That Shirifes in their Turnes and in other places where they haue authoritie to inquire of Trespasses by the Kings Precept or by their Office shall cause inquisitions to be made of malefactors by twelue lawfull men at the least Shirifes shall inquire by xij lawfull men at the least which shall put their seales to such inquisitions And the said Shirifes shall apprehend those which shall be found culpable by such inquisitions and imprison them as they haue vsed to doe And if they doe imprison any other but such as be indicted by the inquisitions aforesaid they which be imprisoned shal haue their action of false imprisonment against the Shirife as they might haue against any other person that should imprison them without warrant and what is said of the Shirife shall bée obserued of euery Baylife of Libertie 4 Because the said Inquisitions taken by the Shirife should not bee concealed imbesilled or mistaken but that the truth of them should bee shewed to the Iustices when they come to deliuer the Gaole Therefore by the Statute of Anno 1. Edw. 3. it was established St. 1. E. 3. 16 That Shirifes and Baylifes of Franchises Indictments by roll indenâ—ed before the Shirife and all others who take Indictments at their Turnes or elsewhere that Indictments should be made shall take those Indictments by Roll indented whereof one part shall remaine with the Indictors and the other with him that doth take the Enquest So that the Indictments shall not bée imbesilled and that one of the Enquest may shew one part of the Indenture to the Iustices when they shall come to make deliuerance This Statute by generall words doth extend to Stewards in Léetes and all others 5 For that great inconueniences and Periuries were in seuerall Counties of this Realme by false verdicts giuen in inquisitions and inquiries before Shirifes in their Turnes by persons of no substance nor behauiour nor fearing God nor respecting the world by which meanes many persons of seuerall parts of this Realme by the inticement and persuasion of their enemies were wrongfully indicted and some others which ought to haue béene indicted by such procurement Of what sufficiency Iurors returned in the Shirifes Turne shal be were spared For the auoiding whereof by a Statute made Anno 1. R. 3. it was enacted That no Bayly St. 1. R. 3. 4 or other Officer shall returne in any pannell any such person in any Countie within this Realme of England to be taken or put in or vpon any such inquirie in any of the said Turnes but such as be of good name and fame and haue lands and tenements of fréehold within the same County to the yearely value of twenty shillings at the least or otherwise Lands and Tenements holden by the custome of the Manor commonly called Copyhold within the said Counties to the yearely value of six and twenty shillings eight pence at the least And if any Bayly or other Officer within the said Counties shall returne or impannell any person contrary to this ordinance he shall loose for euery person so impanelled or returned not being of the sufficiencie aforesaid so often as he shall offend forty shillings and the shirife other forty shillings whereof the one halfe shal be to the King and the other to such as will sue for the same And euery person that will sue for himselfe shall haue seuerall actions of Debt at the common Law as well against the Shirife as against the Bayly And like and the same Proces shal be had and vsed in those actions as be had and vsed in other actions at the common Law and no Protection or Essoine shal be allowed therein and euery such Indictment otherwise taken before the Shirife in his Turne shall be void which foresaid statutes were made to auoid the corrupt and euill demeanor of Shirifes and other officers which take Indictments in shirifes Turnes and Léets 6 Because diuers persons were greatly vexed and troubled by the inordinat and immeasurable Indictments and Presentments as well of Felonie and Trespasses as of other things which were taken and vsed before shirifes their Vndershirifes Clerkes Baylifes and other Ministers at their Turnes or Law-daies holden before them seuerally in their Counties Which indictments and Presentments were often affirmed by Iurors hauing no conscience nor fréehold and small wealth and sometime by the meniall seruants and Baylifes of the said Shirifes or Vndershirifes By reason of which Indictments and Presentments many people were attached arrested and put in prison by the said Shirifes their Vndershirifes Clerkes Baylifes and Ministers and then they were constrained to pay vnto them great fines and ransomes to deliuer them out of prison and also the said Indictments and Presentments were imbesilled withholden and concealed And further the said Shirifes and other Officers had amongst themselues the awarding of Proces vpon such Indictments when they were found and the assessing of fines So that all the corrupt misdemeanors sought to be reformed by the before specified statutes were little or nothing amended And therefore for the reformation of the enormities aforesaid St. 1. E. 4. 3. by
any person before made béeing by force of the foresaid statute of 11. H. 4. in shirifes and bailifes of Franchises seuerall great extortions and oppressions were done in diuers Counties of this Realme by subtilty and vntrue demeanor of shirifes and their ministers to many persons by making and returning at euery Sessions holden within the said Counties for the body of the shire names of such persons as for the singular gaine of the said shirifes and bailifes would be wilfully forsworne by the sinister labour of the said shirifes and their ministers By reason whereof by their couin and falsehood many true and substantiall persons were diuers times wrongfully indicted of Murthers Felonies and other misbehauiours to the vtter losse of their liues goods and lands and sometime also by the labor of the said shirifs great Felonies and Murthers were concealed and not presented by the said persons partially returned by the same shirifs or their ministers to the intent to compell the offendors to make fines and giue rewards to the said Shirifes and their ministers For the preuention of which enormities by a stat made Anno 3. H. 8. it was established St. 3. H. 8. 12 That all panels to be returned which bée not at the suit of any party Panels for indictments reformed by the Iustices that shall be made and put in by euery shirife and their ministers before any I. of Gaole deliuery or I. of Peace whereof one to be of the Quorum in their open Sessions to inquire for the king shal be reformed by putting to and taking out of the names of the persons which so be impanelled by euery shirife and their ministers by the discretion of the same Iustices before whom such panels shall be returned And the same Iustice and Iustices shall commaund euery shirife and their ministers in his absence to put other persons in the same panels by their discretions And the same panels so reformed by the said Iustices be good and lawfull And if any shirife or any of their ministers at any time do not returne the same panels so reformed then euery such shirife or minister so offending for euery such offence shall forfeit xx l. the one halfe to the king and the other to him or them that will sue for the same by action of Debt at the common law or Bill c. wherin no W.E. or P. shal be allowed and the kings pardon shall be no barre against the party or parties that shall sue the same 9 It is to be thought that by force of the statutes before rehearsed sufficient honest and indifferent Iurors were returned by the shirifes of Counties or that the Panels by them returned were reformed by the Iustices so that if any defect were committed in Indictments or in concealing of offences or offendors then the same was in the Iury which were charged for the body of the Shire to make inquirie for the searching forth of the truth whereof and for the punishment of the said offendors according to their demerites by a statute made Anno 3. H. 7. it was ordained St. 3. H. 7. 1 That the Iustices of peace of euery Shire of this Realme for the time being may doe to take by their discretion an enquest Enquest to inquire of concealments whereof euery man shall haue Landes and Tenements to the yearely value of forty shillings at the least to inquire of the concealements of other Enquests taken before them and before other of such matters and offences as are to bée inquired and presented before Iustices of Peace whereof complaint shall be made by Bill or Bils as well within Franchise as without and if any such concealement be found of any Enquest had or made within the yeare after the same concealement euery person of the same Enquest shall bée amerced for the same concealements by the discretion of the same Iustices of Peace the said amerciaments to bée assessed in plene Sessions 10 For as much as seuerall persons vpon great grounds of vehement suspitions as well of high Treasons petit Treasons and misprision of Treason as of Murthers were many times sent for from diuers Shires and places of this Realme and other the Kings Dominions to the Kings great charges to be examined before the Kings Councell vpon their offences to the intent that conuiction or declaration of such persons should spéedily ensue as the merits of their cases should require And albeit that after great trauaile taken in the examination of such persons it appeared to the said Councell by confession witnesse or vehement suspect that such persons were rather guilty of such offences whereof they were examined then otherwise yet neuerthelesse such offendors so examined by the course of the common Lawes of this Realme must be indicted within the Shires or places where they committed their offences and also tried by the inhabitants and fréeholders of such Shires and places although by their confessions or by sufficient witnes their offences were certainely knowne to the Kings Councell By reason whereof besides the trauaile of the Kings Counsell the King was often put to great charges in remaunding such persons to the countries where they offended there to bée indicted and tried of their offences And sometimes the inhabitants and fréeholders of the Shires or places where such offences were done were compelled to appeare out of their shires or places for such causes to their great charges for the triall or declaration of such offences And sometime by occasion of the charges for remaunding such offendors to be indicted and tryed by the course of the common Law such offendors did lye still in prison and were forgotten whereby many times by the helpe of their confederats they escaped vnpunished to the great courage and euill example of euill doers For the reformation whereof by a statute made Anno 33. H. 8. it was enacted St. 33. H. 8. 23. That if any person or persons being examined before the Kings Councell or thrée of them vpon any manner of Treasons misprision of Treasons or Murthers doe confesse any such offences or that the said Councell or thrée of them vpon such examination shall thinke any person so examined to be vehemently suspected of any Treason misprision of Treason or Murther then in euery such case by the Kings commaundement his Maiesties Commission of Oyer and Terminer vnder his great Seale shal be made by the Chancellor of England to such persons Indictments and trials where the king will and to such Shires and places as shall bée named and appointed by the Kings Highnesse for the spéedie triall conuiction or deliuerance of such offendors Which Commissioners shall haue authoritie to inquire heare and determine all such Treasons misprisions of Treasons and Murthers within the Shires and places limitted by their Commission by such good and lawfull persons as shal be returned before them by the Shirife or his ministers or any other hauing power to returne Writs and Proces for that
purpose in whatsoeuer other Shire or place within the Kings Dominions or without such offences of Treasons misprisions of Treasons or Murthers so examined were done or committed and that in such cases no challenge for the Shire or Hundred shall bee allowed After which Statute there was a Statute made Anno 1. 2. Ph. Ma. whereby it was ordained St. 1. 2. P. M. 10. That trials to be hereafter had awarded Triall of Treason or made for any Treason shal be had and vsed only according to the due order and course of the common lawes of this Realme and not otherwise 12. El. Dyer fol. 286 The foresaid stat of 33. H. 8. is repealed by the said stat of 1. 2. Ph. M. touching the indictment and triall of Traitors B for they are to be indicted and tried in the county where the offence was committed or by fréeholders of that county according to the course of the common law notwithstanding that they haue confessed their offences before iij. of the K. Councell But for the triall of Murther the said stat of 33. H. 8. doth continue in force 11 For as much as some doubts and questions were moued whether certaine kinds of Treasons misprisions and concealements of Treasons committed out of the Realme of England and other the Kings dominions can or may by the common lawes of this Realme be inquired of heard and determined within the Realme of England Therefore for a plaine order remedy Indictments and trials of Treasons cōmitted out of this Realme and declaration therein to be had St. 35. H. 8. 2 by a statute made Ann̄ 35. H. 8. it was enacted That all manner of offences being already made or declared or hereafter to be made or declared by any of the Lawes and Statutes of this realme to be Treasons misprisions of Treasons or concealements of Treasons and done perpetrated or committed or hereafter to be done perpetrated or committed by any person or persons out of this Realme of England shall be from henceforth inquired of heard and determined before the kings Iustices of his Bench for pleas to be holden before himselfe by good and lawfull men of the same shire where the said Bench shall sit and be kept Or els before such commissioners and in such shire of the realme as shal be assigned by the kings commission and by good and lawfull men of the same shire in like manner forme to all intents and purposes as if such treasons misprisions of treasons or concealements of treasons had bin done committed within the same shire where they shal be inquired of heard and determined as is aforesaid But if any péere of this Realme shall be indicted of any such Treasons or c. he shall haue his triall by his Péeres B If any subiect of this Realme being beyond the sea doth practise with the Prince or Gouernour of another countrey to inuade this Realme of England with a great power and in his practise doth declare by what meanes how and in what place the same may be done 13. El. Dyer 298. and though there be no such inuasion yet this practise is high Treason Treason practised beyond the sea for an inuasion with power may tend to the destruction or great perill of the person of the King And this offence shall bée tryed according to the foresaid Statute of 35. H. 8. which Statute doth remaine in force and is not repealed by the before rehearsed Statute of 1. 2. Ph. Ma. 10. Indictment in the County of Lancaster of a forraine 12 For the conseruation tranquillity and peace of the Kings liege people as well within the County Palantine of Lancaster as of other his liege people out of the said County within the Realme of England by a statute made Anno 33. H. 6. it was established St. 33. H. 6. 2 That euery Indictment to be taken before any of the Kings Iustices in the County Palantine of Lancaster or before any Shirife in his Turne in the said County whereby any person or persons be supposed by the same Indictment to be or to haue béene inhabiting or conuersant out of the said Countie and within any other Countie within England shall be taken by verdict of twelue men whereof euery of them or some other to their vse shall haue Lands and Tenements to the yearely value of an hundred shillings and no proces shall be made out of such Indictment before it be duly examined before the Iustices within the sayd County whether the said Indictors and euery of them at the time of such Indictment taken had lands and tenemēts within the said County of Lancaster to the yearely value of an hundred shillings aboue all charges And if it be found that euery of the said indictors at the time of the said Indictment taken had not lands c. to the said yearely value of 100. shillings then the Indictment as to such persons so indicted supposed by the said Indictment to be inhabiting or conuersant out of the said County of Lancaster shal be void Indictment in a forraine County of a Lancashire man 13 And by the same statute of Ann̄ 33. H. 6. it was likewise enacted St. 33. H. 6. 2 That euery Indictment from henceforth to be taken within any County of the said Realme and out of the said County of Lancaster before any Iustice or the shirife in his Turne whereby any person or persons supposed by the same indictment to be or to haue bin conuersant or inhabiting within the said county of Lancaster and without such county where such indictment shall happen to be taken shal be taken by verdict of twelue men whereof euery of thē or some other person or persons to their owne vses shall haue lands and tenements to the value of 100. shillings And that no proces be made out of any such indictments before it be duly examined and inquired before the K. Iustices hauing power to award any proces vpon such indictments whether the said indictors and euery of them at the time of such indictments taken or any other person or persons to their vse had any Lands or Tenements to the yearely value of an hundred shillings within the same Countie aboue all charges where such Indictments happen to be taken And if it be found before the King or any of his Iustices that the said Indictors or any of them had not at the time of such Indictment taken nor that none other to their vse had Lands and Tenements to the yearely value of an hundred shillings that then the said Indictment as to any such person or persons supposed by the said Indictment to be or to haue bin inhabitants or conuersant within the said County of Lancaster shal be void and of none effect 14 Though by the rules of the common Law euery offendor shall be tried in that County wherein he is indicted and he shall be both
linguae Therefore the more to encourage Marchants to continue here and also others to come with their marchandizes into this Realme by a Statute made Anno 8. H. 6. St. 8. H. 6. 29 it was declared That the same Statute made Anno 2. H. 5. should be no wayes preiudiciall to the foresaid first statute made 28. Edw. 3. nor was not meant that it should extend to any but onely to Enquests to be taken betwéene Denizon and Denizon and not to the other Enquests or proofes mentioned in the sayd Statute of 28. Ed. 3. viz. to Enquests to be taken betwéene Denizons and Aliens And that the first statute of 28. Ed. 3. should bée effectuall stand in force and be put in execution according to the forme thereof notwithstanding the later Statute of 2. H. 5. and notwithstanding that Aliens haue not lands or tenements of the yearely value of fortie shillings according to the purport of the sayd later statute of 2. H. 5. And so by this statute want of sufficient fréehold is the cause of Challenge to Aliens which bée impanelled with English men But yet it séemeth to be a cause to challenge English men who bée impanelled with Aliens for the perclose of this Statute doth wholly relye vpon Aliens This last rehearsed Statute of 8. H. 6. willeth That the intent of the other Statute of 2. H. 5. should bée preferred before the words thereof and so the Iudges of the law haue expounded it 9. H. 6. 27. for they haue allowed a Iuror which had not fortie shillings of fréehold to bée sworne in an Enquest if others had so much land to his vse And where the words of the statute be If he hath not lands or tenements of the yearely value of fortie shillings and doth not expresse in what Countie yet they doe take it by intendment that the lands must bée in the Countie where the issue is to bée tryed 9. H. 7. 1. M. 12. H. 7. 4 H. 32. H. 8. 20. P. 21. H. 6. 39. And for that the words be in the Present tense viz. if hée hath not they doe expound it that the Iuror must haue so much land in the same Countie at that time when he is sworne for though he had so much land when he was impanelled yet if he hath aliened it or that the same was euicted from him by an auncient title before the time hee was sworne the challenge of insufficiencie shall bée allowed vnto the prisoner And whereas the foresayd statute of 2. H. 5. hath ordayned That no person shall be admitted to passe in any Enquest vpon the tryal of the death of a man if hée hath not lands of the yearely value of fortie shillings this is not meant of the tryall of the death of a man which is slaine but of the tryall of the death of a man which standeth at the barre vpon the question of his life or death And then will this challenge serue for want of sufficient lands vpon the triall of all maner of felonies and treasons By the Statute of 33. H. 8. it is enacted That he which is arraigned of treason St. 33. H. 8. 12. murder or manslaughter committed within the Verge shall haue no maner of challenge to any of the Iury malice only excepted and so shall haue no challenge for want of sufficient fréehold And in like sort it is ordained by the Statute of Anno 3. H. 7. St. 3. H. 7. 14 That hee which being the Kings seruant sworne and whose name is in the checke Roll of the Kings houshold vnder the degrée of a Lord which is arraigned for conspiring with any other to destroy any Lord of this Realme or any other sworne to the Kings Councell Or the Steward Treasurer or Controller of the Kings house shall not haue any challenge but for mallice and so shall haue no challenge for want of sufficient fréehold By a Statute made Anno 33. H. 8. St. 33. H. 8. 13. it was enacted That if a Commission of Oyer and Determiner bée directed into any County for the tryall of any person which doth confesse any Murther to thrée of the Kings Councell or is vehemently susspected thereof no challenge for the Hundred or Shire shall bée allowed vnto him But the challenge of any Iuror for lacke of Fréehold of the yearely value of forty shillings shall bée allowed as hath béene accustomed And because Trials in Murthers and Felonies in Cities Boroughes and Townes corporat within this Realme hauing authoritie in the deliuerance of such offendors were oftentimes deferred and delayed by reason of challenge made by such offendors of Iurors for lacke of sufficiency of fréehold to the great hinderance of iustice for the redresse thereof by a statute made Anno 23. H. 8. St. 23. H. 8. 13. it was enacted That euery person being the kings naturall subiect borne which either by the name of a citizen or a fréeman or any other name doth enioy the liberties of any City Borough or Town◠corporat where he dwelleth being worth in mooueable goods to the cleare value of forty pounds shall bée admitted in tryall of Murthers and Felonies in euery Sessions and Gaoles of deliuery kept in and for the liberty of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this act extendeth not to any Knight or Esquire dwelling abiding or resorting to any such City Borough or Towne corporat any thing in the same act to the contrary hereof notwithstanding 5 Vpon the arraignement of a prisoner the king by his prerogatiue might haue challenged euery of the Iurors peremptorily by the common law without shewing of any cause thereof and by that challenge the same Iuror should haue béene presently drawne But this was a great mischiefe and offence to the subiect who by that meanes was infinitely delayed and had often put out of the Iury the most discréet and indifferent men which were returned for his tryall For the remedy whereof by a Statute intituled Ordinatio de inquisitionibus Challenge for the king made Anno 33. Edw. 1. St. 33. E. 1. it was established That touching Inquisitions to bée made before any Iustices wherein the king is any way a party although it bée alleadged by those which doe prosecute for the king that the Iurors of those Inquisitions or any of them bée not good for the king those Inquisitions shall not therefore remaine to bée taken But if they which doe pursue for the king will challenge any of those Iurors they shall shew a certaine cause of their challenge and the truth of that challenge whether it bée true or not shal be inquired of according to the Iustices discretion But he that doth prosecute the sute for the king néede not presently shew the cause vpon his challenge as a common person should do if he were party against the king for he may shew that cause when he hath perused the whole pannell But if he that is arraigned
and euery the heire and heires of all and euery the offendor and offendors in any the cases aforesaid and all and euery person and persons 1. M. 12. bodies politicke and corporat their heires successors and executors and euery of them other than such person and persons onely as shall be attainted conuicted and outlawed of any the foresaid offences of felonie shall haue hold enioy all such right title entrie interest leases possessions rents conditions profits and aduaÌ„tages as they or any of them shall or of right ought to haue in or to any mannors lands rents reuersions seruices or hereditaments whatsoeuer or in or to any part thereof in as large manner to all intents as if such attainder had neuer beene had any thing in this act c. notwithstanding c. Sauing to euery person and persons bodies politicke and corporate and their successors their liberties and franchises in such maner as if this act had neuer beene made Procuring others to offend 46 If any person or persons doe moue stirre 1. M. 12. or procure any person or persons to commit any of the offences in this Act specified then euery such person and persons which shall procure stirre or mooue any person or persons so to offend shall suffer such punishment by imprisonmeÌ„t without baile or mainprise as is before expressed in this Act against counsellors of such offendors Vnlawful assemblies by xl or aboue 47 If any persons to the number of fourtie or more 1. M. 12. shall assemble together in forcible manner vnlawfully and of their owne authoritie to the intent to execute doe or put in vre any of the things aboue specified or to doe any other felonious or rebellious act or acts and so shall continue together by the space of three houres after proclamation shall bee made at or nigh the place where they shall be so assembled or in some market towne thereunto next adioyning and after notice to them giuen thereof Then euery person so willingly assembled in forcible manner and so continuing together by the space of three houres after such proclamation made and notice thereof giuen shall bée adiudged a felon A lieutenant shall not appoint a deputie 48 No lieutenant that shall bee made by authoritie or colour of this Act 1. M. 12. or for to execute this Act shall constitute vnder him or in his place any deputy nor shall call or appoint to appeare before him by the onely authoritie of lieutenancie or of commission of lieutenancy any person for any cause or matter whatsoeuer saue onely for the causes and matters expressed in this Acte and for none other Aiding of the offendors after the offence 49 No person or persons shall bee put to any losse forfeiture paine 1. M. 12. or punishment of life land or goods as accessorie to any person or persons that shall commit any of the offences contained in this act for receiuing comforting or aiding of any such offendor after such act committed or done 1. M. 12. 50 No attainder or conuiction of any person or persons The attainder of those offences no corruption of blood for any offence or offences herein contained shall be any corruption of blood betwixt the offendor and any of his auncestors or such person or persons as should haue beene heire to such offendor if no such attainder or conuiction had béene had sauing to euery person and persons bodies politicke and corporat c. their liberties and franâ—â—â—ses in such manner as if this Act had neuer beene made ⧠Of Force forcible Entries and forcible retayning of possessions Vnlawfull force an enemy to peace 1 FOrce and violence executed without warrant of Law be so méere contrarie to the peace and justice of the Realme as disobedience is to loyaltie and contempt to gouernment for whosoeuer doth make a Forcible entrie into lands in the possession of an other doth secretly reuolue in his mind and distrust to himselfe that there is no Law in the Realme to redresse his wrong or no ministers to execute the same and therefore he will sit in iudgement of that cause himselfe and take into his owne hands the distribution of justice and assume into his possession by the strength of his arme what the phantasie of his head shall resolue to be his due whereas the Law in conuenient time would truely satisfie him whether the land in question by the rules of justice be his or not and also assigne him a milde and calme course to recouer all his whole dutie with valuable damages for the time he is iniured And because this force and forcible entrie into lands is so opposite and méere repugnant to the peace and justice of the Realme and tendeth so much to the dishonour of the King and his Crowne and the discredit of the Law that any person by byrth and oath deuoted to the obedience of the King and his Lawes should presume of his owne authoritie by force and strong hand to resist them both and as it were in contempt of them violently to intrude himselfe into an other mans possession before the law hath decided his title therein Therefore the wisedome of the Realme hath by the space of many generations first prouided to restraine those forces and forcible Entries and next to inflict condigne punishment vpon them which were offendors therein Whereupon by a Statute made AnÌ„ 5. There shal be no forcible entry into lands R. 2. the King defended St. 5. R. 2. 7. that none from thenceforth should make any Entrie into any lands and tenements but in case where entrie is giuen by the Law and then not with strong hand nor with multitude of people but only in a peaceble course maner And if any from henceforth do the contrary and thereof be duely conuict he shall be punished by imprysonment of his bodie and thereof ransomed at the Kings pleasure 2 But for that the said Statute of 5. R. 2. did giue no spéedie remedie to those which were expelled out of their lands or tenements nor assigned any speciall persons to suppresse the said disorder Therefore by an other Statute made AnÌ„ 15. St. 15. R. 2. 2 R. 2. it was further ordained The penaltie of forcible entrie into lands or benefices That when any such forcible entrie shall be made into lands or tenements or into any Benefices or offices of the Church and the complaint thereof come to the Iustices of the peace or any of them that the same Iustices or Iustice take sufficient power of the County and go to the place where such forcible entrie is made if he or they find any that holdeth such place forcible after such entrie made they shall be taken and put into the Gaole there to abide conuict by the record of the same Iustices or Iustice vntill they haue made fine and ransom to the King And all they of the Countie aswell the Shirife as other
shall be attending vpon the Iustices to go and assist the same Iustices to arrest such offendors vpon paine of imprisonment and to make fine to the King 3 And forasmuch as the said Statute of 15. R. 2. doth not extend to Entries into tenements in peaceable manner and after holden with force nor if the persons which enter with force into any lands or tenements be wholy remoued and departed before the comming of the said Iustices or Iustice Neither is there any paine ordained if the Shirife do not obey the precepts of the Iustices in this behalfe St. 8. H. 6. 9. Therefore by an other Statute made An̄ 8. H. 6. it was ordained that the said former Statutes should be continued and executed And further that where any do make such forcible entrie into lands tenements or other possessions or hold them forcible Holding possession by force after complaint thereof made within the said Countie where such entrie is made to the Iustices of peace or to one of them by the partie grieued that the Iustices or Iustice so warned within a conuenient time cause the said Statute to be executed and that at the costes of the partie so grieued And whether such persons making such Entries be present or gone before the comming of the said Iustices or Iustice presently the same Iustices or Iustice in some good Towne next vnto the tenements so entred or in some other conuenient place according to their discretion shall haue authoritie to inquire by the people of the same Countie aswell of them that made such forcible entries into lands or tenements Feoffement of lands for maintenance as of them which hold the same with force And if it be found before any of them that any doth contrarie to this Statute then the said Iustices or Iustice shall cause the lands or tenements so entred or holden as aforesaid to be reseised and shal put the partie so put out in full possession of the same lands or tenements so entred or holden as before they were entred or holden And if any person after such entrie into lands or tenements holden with force make a feoffement or other discontinuance 〈◊〉 any Lord or other person to haue maintenaunce or to take away and defraud the possessor of his recouerie in any wise if after in an Assise or other action thereof to be taken or pursued before Iustices of Assise or other the Kings Iustices whatsoeuer they be by due inquirie thereof to be taken the same feoffements and discontinuances may be duely proued to be made for maintenance as is aforesaid then such feoffements or other discontinuances so as before made shall be void And if any person be put out or disseised of any lands or tenements in forcible manner or put out peaceablie after holden out with strong hand and armes against the Iustice of peace or after such entry any feoffement or discontinuance in any wise thereof be made An Assise or action of trespas againste disseisour by force to defraude take away the right of the possessor the party greiued in this behalfe shall haue an Assise of Nouel disseisin or a writ of Trespas against such disseisor And if the party grieued recouer by Assise or by action of Trespas and it be found by verdict or in any other manner by due forme of the Law that the partie defendant entred with force into the lands tenements or them after his entrie did hold with force then the plaintife shall recouer treble dammages against the defendant and moreouer the defendant shall make fine and ransome to the King The authority of officers of Cities and Townes enfranchised And the Maiors Iustices and Iustice of peace Shirifes and Bailifes of Cities and Boroughes hauing fraunchise shall haue in the said Cities Townes Boroughes like authoritie to auoid such Entries and in other articles aforesaid rising within the same as Iustices of peace and Shirifes in Counties and Shires haue 4 As by the foresaid Statute of 8. H. 6. if any person after entrie into lands or tenements holden with force shal make any feoffement or other discontinuance thereof to any Lord or other person to haue maintenance or to defraud the possessor of his recouery then the same feoffements discontinuances shall be void So by an other Statute made before that Anno 4. H. 4. St. 4. H. 4. 8. it was inacted A speciall Assise against a disseisor with force That if any man in his owne right to his vse or in an other mans right to his vse doth make any forcible entrie into an other mans lands by way of maintenaunce or doth take or carry away any goods of the possessors of the fréehold after any such forcible entrie then if the partie grieued or other lawfull man will affirme that the entry was made in such forcible manner the Chancellor of England may graunt to the partie greiued a speciall Assise And if the disseisor be attainted of such forcible disseisin he shall be one yeare imprisoned and pay to the partie grieued his double dammages and also dammages for his goods And one of the Iustices of the one Bench or of the other or the chiefe Baron of the Exchequer if he be learned in the law shall be named in euery such speciall Assise And no Supersedeas shal be granted to the contrarie of such Assise 5 Wherefore if a man be disseised by force of any lands or tenements by way of maintenance or that his goods be taken or carried away after such entrie made Or that he be put out or disseised of his lands in forcible manner Or that he be put out peaceablie and after holden out with force against a Iustice of peace Or after such entrie any feoffement or discontinuance be made to defraud and take away the right of the possessor then the partie grieued as his case requireth may haue a speciall Assise against the disseisor and recouer his double dammages Seuerall remedies for seuerall offences by force and dammages for his goods and the disseisor shall be one yeare imprisoned according to the foresaid Statute of 4. H. 4. St. 4. H. 4. 8. Or else he may haue an Assise of Nouel disseisin or an action of Trespas against the disseisor and recouer treble dammages and moreouer the disseisor shall make fine and ransom to the King according to the before rehearsed Statute of 8. H. 6. St. 8. H. 6. 9. Or if the plaintife will omit the benefit of recouerie of his dammages he may only craue and vse the assistance of a Iustice of peace to sée and remoue the force to record it to inquire of it and to make him restitution according as the truth of his case shall appeare to the said Iustice vpon his owne sight or be found by inquisition according to the former prouision of the said Statute of 8. H. 6. Or lastly he that is put out or holden out of his lands with force
may haue a writ directed out of the Chauncerie to the Shirife only or to the Shirife and the Iustices of peace vpon the Statute of Northhampton made AnÌ„ 2. Ed. 3. St. 2. E. 3. 3. commaunding that proclamation may be made vpon that Statute 6 And for that it is conuenient that he who is with force expelled out of his lands or by force detained from the same should not be long kept out of possession thereof but that there should be a spéedie redresse to restore him to his owne and also because it is meant that the inquisition of that force should be made by men of good estate and so the more like to be indifferent of better vnderstanding and to declare the truth in those cases Therefore by the foresaid statute of Anno 8. Sta. 8. H. 6. 9. H. 6. it was moreouer ordained That when the said Iustices or Iustice shall make such inquiries as are beforesaid they shall cause their warrants and precepts to be directed to the Shirife of the same Countie A precept to the Shirife to impannell a Iurie commaunding him on the Kings behalfe to cause to come before them and euery of them sufficient and indifferent persons dwelling next about the lands so entred vpon as before to enquire of such entries whereof euery man that shall be impannelled and may inquire in this behalfe shall haue lands or tenements to the value of xl s. by the yeare at the least aboue reprises and that the Shirife returne issues vpon euery of them at the day of the first precept returnable xx s. and at the second day xl s. and at the third day fiue pounds and at euery day after the double And if any Shirife or Baylife within a fraunchise hauing the returne of the Kings writs be slacke and make not execution duly of the said precepts to him directed to make such inquiries he shall forfeit to the King xx.li. for euery such default Shirifes forfaiture and moreouer shall make fine and ransom to the King And aswell the Iustices or Iustice aforesaid as the Iustices of Assise and euery of them at their comming into the Country to take Assises haue power to heare and determine such defaults and negligences of the said Shirifes and Bailifes and euery of them aswell by bill at the sute of the party greiued for himselfe as for the King to sue by Inditement only to be taken for the King And if the Shirife or Bailife be duly attainted in this behalfe by Indictment or by bill he which sueth for himselfe and for the King shall haue the one moitie of the forfaiture of xx li. together with his costs and expences The proces And the same proces shall be made against such persons indited or sued by bill in this behalfe as should be against persons indited or sued by writ of Trespas with force and armes against the Kings peace 7 The forme of which precept by a Iustice of peace Buck. to the Shirife to returne a Iurie to enquire of Forcible entries is this Edwardus Tirrell miles vnus Iusticiariorum dnÌ„i Regis The forme of a Precept to the Shirife to returne a Iurie ad pacem in Comitatu Buck. conseruandam assignatorum vicecomiti eiusdem Comitatus salutem Ex parte dicti Domini Regis tibi mando quod venire facias coramme apud Thornborough in Comitatu praedicto 10. die Octobris proximo futuro 24. probos sufficientes legales homines de viceneto de Thornborough praedicto quorum quilibet habeat 40. solidos terrarum tenementorum vel reddituum pet annum ad minus vltra reprisas ad inquirendum super sacramentum suum si A. B. de Adstock in dicto Comitatu Buck. blacksmith alij malefactores pacis dicti domini Regis perturbatores in vnum mesuagium 20. acras terrae alia tenementa de C. D. husband de T. praedict ' manu forti super possessionem dicti C. D. ingressi sunt aut eadem cum fortitudine adhuc tenent occupant Et videas quod super quilibet Iuratorum in hoc parte impan nellandorum xx s. ad primum diem returnes hoc nullatenus omittas sub pena xx.li. quam noueris te incursurum si in executione praemissorum tepidus aut remissus fueris Et habeas ibi hoc praeceptum Datur apud Thornton xx die Septemb. Anno Regni domini nostri Regis Iacobi c. tertio 8 The forme of an inquisition or verdit of the Iury which are returned and sworne to enquire of forcible Entrie into lands or tenements or of the forcible detayning of them taken by a Iustice of peace is this Buck. The forme of an Inquisition of forcible entrie viz. Inquisitio pro domino Rege capta apud Buckingham in ComÌ„ praedicto xx die N. Anno Regni domini nostri Regis Iacobi c. quarto super sacramentum A. B. C. D. E. F. G. c. coram Thoma Temple milite vno IusticiarÌ„ dicti domini Regis ad pacem in dicto Comitatu conseruandam assignatorum Qui dicunt quod vbi H. I. de Tyngswicke in Comitur praedict husbandman qui legitime pacifice seisitus fuit in dominico suo vt defecdo de vno mesuagio cum pertinentijs in Tyngswick praedicto possessionem suam sic continuauit quousque L. M. de Maydsmoorton in Comitatu praedicto laborer alij malefactores pacis dicti domini Regis perturbatores xxx die O. iam vltimo elapso vi armis viz. cum baculis gladijs arcubus sagittis fustibus gunnis balistis in mesuagium praedictum c. intrauerunt ipsum H. I. inde expulerunt idem mesuagium c. a praedicto xxx die O. vsque ad diem captionis huius inquisitionis c. cum huiusmodi fortitudine potentia tenuerÌ„ occupauerunt in magnam pacis dicti domini Regis perturbationem contra formam statuti in tali casu editi ê“uisi vbi nullus eorum nec aliquis alius cuius statum ipsi aut aliquis eorum habuerunt aut habuit aliquid in eodem mesuagio c. aut aliqua inde parcella habuerunt aut habuit infra tres annos proximos ante ingressuÌ„ suum praedictuÌ„ nequè aliquo tempore praecedente ad notitiam Iuratorum pÌ„dictorum 9 And for that the said Statute of 8. H. 6. hath ordained That if it be found before any of the said Iustices of peace that any doth contrarie to that Statute then the said Iustices or Iustice shall cause the lands or tenements so entred or holden with force to be reseised and shall put the partie so put out in full possession of the same lands so entred or holden as before they were entred or holden Therefore when the Iustice of peace shall by the said Inquisition be informed or by the view of his owne eye perceiue that any such forcible entrie into any
land without interruption 22. H. 6. 18. Fitz. Na. B. 249. he may kéepe his possession by force against all others And he is neither to be remoued from his possession by a Iust of peace though it be found by inquisition that he held that land by force nor yet by an action of Forcible entry brought against him vpon the said statute of 8. H. 6. Otherwise it is of a disseisor where restitution notwithstanding three yeares possession or of a man that commeth to land by a wrongful and vnlawfull title for if he hath detained the land by force thrée yeares 14. H. 7. 28. or twenty yeares he may be indited by vertue of the statute of 8. H. 6. before a Iustice of peace of forcible detaining of the same land and that being found the said Iustice of peace is to reseise the land and to award restitution to the party disseised or expelled thereof And also the same disseisor shall make fine and ransome to the King cui nullum tempus occurrit whose peace is brokeÌ„ by this long and vnlawfull detaining of the possession of another mans land by force But the party disseised expelled or kept out of possession cannot in this case maintaine an action of Forcible entry vpon the said statute of 8. H. 6. against the said disseisor séeing he hath omitted his time suffered the disseisor to gaine of him thrée yeares possession therby the benefit of the same prouiso contained in the said statute of 8. H. 6. 13 If a man who hath made an Entry vpon the possession of another of any lands or tenements by force or doth hold lands by force 1. R. 3. 4. after a peaceably entry made doe doubt that he shal be thereof indited before a Iustice of peace vpon the statute of 8. H. 6. and that restitution will be thereupon awarded he may haue a Certiorari out of the Kings Bench ready and when the Bill of Indictment is found he may presently deliuer it to the court and that shal be a Supersedeas to stay Restitution A Supersedeas to stay restitution for that by this Certiorari the indictment shal be remoued And though the indictment be found after the Teste of the writ of Certiorari it is not materiall for they be both the Kings Courts And when an indictment vpon the said statute of 8. H. 6. 2. 3. P. M. Dy. 122. is remoued into the kings Bench and that the party indited doth tender to trauerse the same the Iustices of the same Bench may graunt or stay restitution at their discretion according as the truth of the Title shall appeare to them But if a speciall sessions be procured to inquire of a Forcible entry or detaining of possession according to the said statute of 8. H. 6. and the Iustices to whom complaint is made do repaire to the place supposed to be entred vpon or holden with force 2. 3. P. M. Dy. 187. and doe sée the same according to the said statute after they do inquire thereof and that is found and thereupon they graunt restitution no other Iustice of peace can graunt a Supersedeas to stay the same restitution for by the said statute no other Iustice hath authority to graunt restitution but he or they to whom the complaint is made and before whom the force is found the writ shal be graunted vnder the Teste of one of them onely sauing the Iustices of the K. Bench who haue supreme authority and where the law doth intend that the King himselfe doth sit 14 Whereas the words of the foresaid statute of 8. H. 6. be Sta. 8. H. 6. 9. If it be found before any of the Iustices or Iustice of peace that any doth contrary to this statute viz. enter vpon or hold lands with force then the said Iustices or Iustice shall cause the lands or tenements so entred or holden to be reseised and shall put the party so put out in full possession of the same landes or tenements so entred or holden as before they were entred or holden And therefore if the father be put out of possession of lands by force and dieth before or after inquisition thereof his heire shall not haue restitution thereof vpon the said statute of 8. H. 6. for that he was not the same person which was put out And the same Law is if after the death of the father Where force found and no restitution dying seised of certaine lands a stranger doth abate and holdeth the same lands by force against his heire before he had gotten any possession indéed and that force is found before a Iustice of peace by an inquisition the same heire shall not haue restitution by the words of the said statute for that the same heire had but a possession in law and was not in actuall possession of that land neither is hée that party who was put out And so it is if tenant for terme of yéeres of certaine lands be put out of his terme by force and die though after his death the force he fâ—und by inquisition taken by a Iustice of peace his executors shall not be restored to the possession of that land by the same Iustice of peace causa qua supra But yet in the cases aforesaid the offendor shall be punished by imprisonment fine to the K. for by his forcible entry he hath broken the peace St. 15. R. 2. 2. 15 Whereas by the before rehearsed statute of 15. Rich. 2. it is ordayned That when any forcible entry shal be made into lands and complaint thereof come to a Iustice of peace he shall go to the place where the entry was made and if he find any that hold any such place forcibly after such entry made they shal be taken and put into the Gaole c. The forme of which Iustice of peace Mittimus whereby he shall send the same offendors to the Gaole is this viz. Francis Fortescue knight Buck. A Mittimus to send to the gaole such as do hold land by force one of the Iustices of peace of our Soueraigne Lord the King within the county of Buckingham to the keeper of his Ma. Gaole in Aylesbury in the said county and to his deputie and deputies there and to euery of them greeting Vpon complaint made to me by A. B. of Whaddon in the said county husbandman that C. D. E. F. of S. in the said county labourers and other malefactors and disturbers of the Kings peace had forcibly and with strong hand entred into his house c. in Whaddon aforesaid and him expulsed the same yet held with force I went this present day to the said house and there found the said C. D. E. F. holding the said house c. with swords and bucklers bils and staues to the great disturbance of his Ma. peace and against the forme of the said statute in that behalfe ordained And therefore I send you
shall haue like Proces vpon the same as in cases of trespas at the common law Or may at his pleasure take his suite against any such offendors in any the premisses by Bill in the Kinges Bench or in the Exchequer In which sutes no Essoine Iniunction or Protection shall be allowed for the party Defendant Not twice impeached for one offence 6 If the Defendant shall be conuict for any of the offences aforesaid St. 5. Eli. 14. according to the order and forme aboue limited and shall haue receiued thereupon punishment corporall according to this Act then he shall not eftsoones be impeached for the same offence The plaintifs release shal only discharge his owne remedy 7 Although the partie or parties plaintife in any such Action St. 5. Eli. 14. or Bill to be sued as is aforesaid shall after verdict past against the Defendant or Defendants happen to release or discharge the iudgement or execution vpon the same or otherwise suffer the same to be discontinued yet neuerthelesse the same release discharge or discontinuance shall extend onely to discharge such costs and dammages as the same plaintife should haue had against the defendant And the Iudges before whom the said action or suite shall be taken shall and may prrcéede to iudgement of and vpon the residue of the said penalties and forfeitures and commaund execution vpon the same the saide release discontinuance or other discharge had made done or suffered by the partie plaintife in any wise notwithstanding 8 If any person or persons being hereafter conuicted St. 5. Eli. 14. or condemned of any of the offences aforesaid by any of the wayes or meanes aboue limited shall after any such his or their conuiction or condemnation eftsoones commit or perpetrate any of the said offences in forme aforesaide The punishment for the second offence Then euery such second offence or offences shall be adiudged felony and the parties being conuicted or attainted according to the lawes of this Realme shall suffer paines of death losse and forfeiture of their goods cattels lands and Tenements as in cases of felony by the common lawes of this Realme ought to be lost or forfeited The right of others saued without hauing any aduantage or benefit of Clergie or Sanctuarie Sauing to euery person and persons body politique and corporate their heires and successors other than the said offendors and such as claime to their vses all such rights titles interests possessions liberties of distresses leases rents reuersions offices and other profits and aduantages which they or any of them shall haue at the time of such conuiction or attainder of in or to any the lands tenements or hereditaments of any such person so as is aforesaid conuicted or attainted or at any time before in as large ample maner to all intents and purposes as if this Act had neuer bin made Prouided alwayes that any such conuiction or attainder of felony as is aforesaid No forfeiture of Dower or corruption of blood or any forfeiture by reason of the same shall not in any wise extend to take away the dower of the wife of any such person attainted nor to the corruption of blood or disherison of any the heire or heires of any such person or persons so attainted This Act or any thing therein contained or any other statute law or custome notwithstanding 9 All and euery Iustices of Oire and Determiner St. 5. Eli. 14 and Iustices of Assise Iustices of Oire and Determiner and Iustices of Assise in their circuits and euery of them shall haue full power and authoritie in euery of their open and generall Sessions to inquire heare and determine of all and euery of the offences aforesaid committed or done within the limits of their Commission and to make Processe for the execution of the same as they may do against any person beeing indicted before them of Trespasse or lawfully conuicted thereof Stat. 5. El. 14 10 If any person or persons whatsoeuer hath of his or their owne head Forging of deeds before the statute or by false conspiracie or fraud with any other wittingly subtilly and falsly forged or made or shall before the first day of Iune next comming forge and make any false déed charter or writing sealed or the will of any person in writing or any court roll to the intent that the estate of Freehold or inheritance or the right title or interest of inheritance or freehold of any persons of in or to any Mannors lands tenements or hereditaments being freehold or copihold Or that by any such forged déed charter court roll or writing before the said first day of Iune shall or may be molested troubled or defeated of any of the said estates of any lands tenements or hereditaments being fréehold or Copihold Or if any person or persons haue heretofore published or shewed foorth in euidence or before the said first day of Iune shall publish or shew in euidence for the proofe of any title any false and forged déed charter writing will or Court Roll as true knowing the same to be false and forged as aforesaid to the intent aboue remembred and shall be thereof attainted or conuicted according to the order of the law either in an Action of forger of false faits or in an Action vpon the case at the sute of the party grieued his heirs executors or assignes Then the party so conuicted shall yielde and pay dammages and costs of sute to the plaintife as shall be assessed according to the law of the Realme in any such like Action or sute and shall suffer imprisonment and pay fine and ransome at the pleasure of the Quéene her heires or Successors Pleading a forged deed made before the statute And if any person or persons shall after the said first day of Iune next comming pleade publish or shew foorth in euidence or otherwise for the proofe of any title any false and forged déed charter writing will or Court Roll heretofore falsly made and forged or to be falsly made and forged before the said first day of Iune as true knowing the same to be false and forged to the intent to haue or claime thereby any estate of inheritance fréehold or lease of yeares in or to any mannors lands tenements or hereditaments or any annuitie rent or profit foorth of any mannors lands tenements or hereditaments Or to the intent to alter defeate molest trouble charge or recouer the estate of inheritance fréehold or lease for years of any person in any mannors lands tenements rents or hereditaments Then euery person and persons that so shall offend and shall be thereof conuicted in forme first aboue remembred shall pay vnto the partie grieued double costs and dammages and shall haue imprisonment losse of Eares slitting and searing of Nose and forfeiture of lands in the same maner and forme as aboue is limited for any person that shall offend by forging or publishing of any
Iurors to enquire of riots rout or vnlawfull assembly shall be committed which shall be returned by the Sherife to enquire thereof shall haue lands and tenements within the same shire to the yearely value of xx s. of Charter land or freehold or twentie sixe shillings eight pence of copiehold or of both aboue all charges But in that case by the Statute of Anno 2. H 5. St. 2. H. 5. 8. if they be returned by the Coroners then euery of them shall haue lands and tenements or rents to the yearely value of tenne pounds at the least By the Statute of Anno 1. St. 1. R. 3. 4. R. 3. it was enacted That no officer shall returne in any panell to be taken or put in Iurors in the sherifs Turne or vpon any inquisition or inquirie before the Sherife in his Turne other than such which bee of good name and fame and which haue lands or tenements of freehold within the same countie to the yearly value of xx s̄ at the least or else copyhold lands to the yearely value of xxvj s̄ viij d. at the least aboue all charges By the Statute of An̄ 8. H. 6. Sta. 8. H. 6. 9 it was prouided That euery person which shall be returned to inquire of any forcible entrie into lands Iurors to inquire of forcible entrie or detayning of lands by force shall be a sufficient indifferent person and shall haue lands and tenements to the cléere yearely value of xl s̄ By the Statute of An̄ 1. H. 8. it was established Sta. 1. H. 8. 8. That euery Iuror which is returned before any escheator Iurors returned before Escheators or commissioner to inquire of lands or tenements or some other to his vse shall haue lands or tenements of the yearely value of xl s. aboue all charges in the same shire where the inquirie shall be made St. 11. H. 7. 21. 23. H. 8. 3. 37. H. 8. 5. And by the stat made An̄ 11. H. 7. An̄ 23. H. 8. An̄ 37. H. 8. The Iurors returned vpon an attaint in London or els where shal be of more or greater ability in lands tenements goods or cattels then is before specified 16 The law hauing first vsed al good deuises to cause shirifes vndershirifes Bailifes of liberties coroners al others authorized to return impannel Iuries to be indifferent to returne the said Iuries Iurors without al partiality that they shal be no furtherers maintainors nor assistors to periury subornation or embracery also hauing prouided that all those Iurors which be so returned vpon Enquests to try issues betwéen party party may again one by one be sifted tried examined whether they standing vnsworne be indifferent or not She doth then expect to receiue from those Iurors Veredictū a true tale that is to say a true verdit or presentment of such things as be giuen them in charge according to their euidence But if the same Iurors will decline from truth and make a false presentment contrarie to their euidence then is it not to be termed Veredictum but Periurium and it will be returned to them as Maledictum for by the common Law they being attainted by the verdict of xxiiij other Iurors shall receiue a cursed and villanous iudgement therefore viz. the said Iurors shall loose the fréedom of the Law their wiues children shall be thrust out of their houses Fit Ass 396. 46. Ed. 3. 23. 42. Ed. 3. 26 6. Assi◠p. 7. 30. Ass p. 24 40. Ass p. 20. 41. Ass p. 18. Li. Int. fo 92 The iudgement in an at the common law of a Iury proued periured their houses shall be pulled downe to the ground their orchards gardens shall be supplanted their trées shall be digged vp by the roots their meadowes shall be eyred vp All the goods cattels which they had at the time of the Attaint brought or at any time after shal be forfeited to the King The King shall haue all the profits of their lands during their liues And they shall be committed to perpetuall prison Which iudgement was deuised many yeres put in execution to the intent it might be knowen how much the common Law did detest and punish wilfull Periurie and falshood in those who shée trusted in place of justice and from whom shée accompted to receiue truth 17 But sithence by the Statute of An̄ 11. H. 7. and An̄ 23. H. 8. the said iudgement against a petit Iurie attainted is in some cases altered and qualified Sta. 11. H. 7. 21. for by the Statute of 11. H. 7. it is ordained That the party grieued by any false verdict giuen in any of the Courts of the Citie of London shall and may sue Attaint by Bill in the Hustings of London The iudgement in Attaint in London holden for common Pleas before the Maior Aldermen of the same Citie And if the graund Iurie sworne in the same Attaint find that the petit Iurie haue giuen an vntrue verdict then the iudgement shal be against the defendant as is vsed in attaint sued by writ at the common Law And the iudgement shall be against the petit Iurie that euery of them shall loose xx li. or more by the discretion of the Maior and Aldermen of the said Citie kéeping the Hustings to such vses as other issues and penalties béen forfeited in any action or plaint commenced before the Mayor and Aldermen of the said citie and his bodie to bee imprisoned there to remaine without baile or mainprise vj. moneths or lesse by the discretion of the Mayor and Aldermen and to be disabled for euer to be sworn in any Iurie before any temporall Iudge But the iudgement in such Attaint shall not extend to any lands or tenements St. 23. H. 8. 3 An. 13. El. 25. ne to other punishment of the petit Iurie And by the before mentioned Statute of Anno 23. H. 8. it was enacted That vpon euery vntrue verdit giuen betwéene partie and partie in any suit plaint or demaund before any Iustices or Iudges of Record where the thing in demaund and verdict thereupon giuen extendeth to the value of fourtie pounds An attaint where the thing eetendeth to xl l. and concerneth not the ieopardie of mans life the partie grieued by the same verdict shall haue a writ of Attaint against euery person so giuing an vntrue verdict and euery of them and against the partie which shall haue iudgement vpon the same verdict And euery one that shall passe in the same Attaint shall haue lands and tenements to the value of twentie markes by yeare of fréehold out of auncient demesne And if the graund Iurie find that the petit Iurie gaue an vntrue verdict then euery of the said petit Iurie shall forfeit twentie pounds whereof one halfe shall be to the King and the other halfe to him that sueth to be leuied by Capias ad satisfaciendum fieri facias
The penaltie for committing of wilfull periurie vnlawfull procurement sinister perswasion or meanes of any others or by their owne Act Consent or Agreement shall wilfully and corruptly commit any manner of wilfull periurie by his or their deposition in any of the Courts before mentioned or béeing examined ad perpetuam rei memoriam Then euerie person or persons offending shall for his or their said offence loose and forfeit twentie pounds to the King and the partie grieued hindered or molested by reason of any of the offences before mentioned that will sue for the same by A. B. P. or I. in any of the Kings courts of Record wherein no W. E. P. or I. shall be allowed and shall haue sixe months imprisonment without Baile or Maineprise And the oath of such person or persons so offending from thenceforth shall not bee receiued in any court of Record within England or Wales or the Marches of the same vntill such time as the iudgement giuen against the said person or persons shall be reuersed by Attaint or otherwise And vpon euery such reuersall the parties grieued to recouer his or their dammages against such person and persons as did procure the said iudgement so reuersed to be giuen against thē by action to be sued vpon his case And if the said offendor haue not any goods or cattels to the value of xx l. then he shall be set on the Pillorie in some market place within the shire citie or borough where the said offence shall be committed by the Sherife or his ministers if it be without any citie or towne corporat and if it be within any citie or towne corporat then by the head officer or officers of the same citie or c. or by his or their ministers there shall haue both his eares nailed and from thenceforth be discredited disabled for euer to be sworne in any of the courts of Record aforesaid vntill the iudgement shall be reuersed and thereupon shall recouer his dammages in manner and forme before mentioned In what courts Periurie shall be punished 23 As well the Iudge and Iudges of euery such of the said courts where any such suit is or shall be Sta. 5. El. 9. and whereupon any such periurie is or shal happen to be committed as also the Iustices of Assise and gaole deliuery in their seuerall circuits and the Iustices of the peace in euery countie within this realm or in Wales at their Quarter Sessions both within liberties and without shall haue authoritie by vertue hereof to enquire of all and euery the defaults and offences committed contrarie to this act by inquisition presentment bill or information before them exhibited or otherwise lawfully to heare and determine the same and thereupon to giue iudgement award processe and execution of the same according to the course of the lawes of this Realme Proclamatiō of this Statute 24 The Iustices of Assise of euery circuit within this Realme shal in euery countie within their circuits two times in the yeare St. 5. El. 9. viz. in the time of their sittings make open Proclamation of this Statute or of the effect thereof to the intent that no person shal be ignorant of the penalties herein contained Periurie punished in the spirituall court 25 Prouided that this Act or any thing therein contained St. 5. El. 9. shall not extend to any spirituall or Ecclesiasticall court within this Realme of England or Wales or the Marches of the same but all and euery such offendor and offendors as shall offend in forme aforesaid shall and may be punished by such vsuall and ordinarie lawes as heretofore hath bin and yet be vsed in the said Ecclesiasticall court any thing in this Act c. notwithstanding Periury punishable in the Starchāber 26 Prouided that this Act shall not extend to restraine the power or authoritie giuen by Act of Parliament made An̄ 11. H. 7. Sta. 5. El. 9. St. 11. H. 7. 25. to the Lord Chauncelor and others of the Kings Councel to examine and punish riots routs hainous Periuries and other offences which haue vsed to heare and determine such matters in the Starre-chamber at Westminster nor to restraine the power of the Lord President and Councell in the Marches of Wales or in the North nor of any other Iudge hauing absolute authoritie to punish Periurie before the making of this Statute But But they and euery of them shall procéede in the punishment of all offences heretofore punishable in such wise as they might haue done and vsed to do before the making of this Act to all purposes so that they set not vpon the offendors lesse punishment then is contained in this Act. 27 Because by the said statute of 5. Eliz. 9. there is no Ordinance made for the punishment of those Bankrupts who being sworne and examined vpon Interrogatories by Commissioners thereunto authorized shall commit Periurie Nor for the punishment of those witnesses who either by the procurement of others or by their owne consent shall commit Periurie being examined by the said Commissioners touching Bankrupts goods or debts Therefore by a statute made Anno 1. St. 1. Iac. 15. Iac. it was ordained That it shall be lawfull for the Commissioners authorized vnder the great Seale of England or the greatest part of them to take order with Bankrupts bodies lands tenemēts and hereditaments money goods cattels wares and debts to examine the said offendor or offendors vpon such interrogatories touching the lands tenements goods cattels and debts bils bonds bookes of accompt and such other things as may tend to disclose his her or their estate or the secret graunts cōueyances and eloigning of his her or their landes tenements goods money and debts as they shall thinke méet And if therein the offendor or offendors shall refuse to be examined or to answer fully to euery interrogatorie to him to be ministred by the said Commissioners or the greater part of them it shall be lawfull for the said Commissioners or the greater part of them to commit the said offendor or offendors to some strait or close imprisonment there to remaine vntill he she or they shall better conforme him or her selfe And if vpon his her or their examination it shal appeare that he she or they haue committed any wilfull or corrupt Periurie tending to the hurt or dammage of the creditors of the said Bankrupt Periury punished in Bankrupts to the value of tenne pounds of lawfull money of England or aboue the party so offending shall or may thereof be indited in any of the Kings Courts of Record and being lawfully conuicted therof shall stand vpon the Pillory in some publike place by the space of ij houres and haue one of his eares nailed to the Pillory and cut off And by the same statute of Anno 1. Iac. it is further established That if any person or persons other then the Bankrupt either by subornation vnlawfull procuremēt sinister persuasion
the land or thing in variance so it is Maintenance to take part in any quarrell depending in suit in the Kings court or to worke any fraud whereby iustice may be hindered Westm 1. 3. E. 1. 28. as it appeareth by the statute of West 1. whereby it is ordained That if any Clerke of the kings or of any Iustice The penalty for maintaining of suits do receiue the presentment of any Church for the which any plea or debate is in the K. Court without the kings speciall licence he shal loose the Church and his seruice And if any Iustices or Shirifes Clerke take part in any quarrell depending in the Kings Court or doe worke any fraud whereby common right may be delayed or disturbed he shall loose his seruice and be further punished if the Trespas doe require St. 32. H. 8. 9 And after by a statute made Anno 32. H. 8. there was a greater penalty imposed vpon those who shall be maintainors of suits By which statute it was ordained That no person or persons whatsoeuer shall vnlawfully maintaine or cause or procure any vnlawfull maintenance in any action suit demaund or complaint in any of the Kings Courts of the Chauncerie Starre-chamber White hall or elsewhere within any of the K. dominions of England or Wales or the marches of the same where any person or persons haue authoritie by vertue of the K. Commission Patent or Writ to hold plea of lands or to heare examine or determine any title of lands or any matter of witnesse concerning the title right or interest of any lands tenements or hereditaments Or shall vnlawfully retaine for maintenance of any suit or plea Retaining for maintenance or imbracing or suborning of Iurors any person or persons or embrace any fréeholders or Iurors or suborne any witnesse by letters rewards promise or by any other sinister labour or meanes for to maintaine any matter or cause or to the disturbance or hinderance of iustice or to the procurement or occasion of any manner of Periurie by false verdict or otherwise in any of the Courts aforesaid vpon paine of forfeiture for euery such offence x. pounds to the king and Inf. to be recouered by him that will sue for the same in any of the kings Courts of Record by Action of Debt Bill Plaint or Information wherein no W.E.P. c. if the suit be commenced in any of the kings Courts within one yeare next after any such offence committed or els not 10 As it is Maintenance to haue by agréement part of the land in variance or part of the gaines of the suit in question so is it Maintenance to buy a pretenced right or title of another of or to lands or tenements whereof the seller hath no possession for this oft times the cause of Subornation of witnesses procurement of Periurie and of the subuersion of iustice For the redresse whereof by the last specified Statute of Anno 32. H. 8. St. 32. H. 8. 9 it was first enacted That all Statutes heretofore made concerning Maintenance Champertie and Embracerie or any of them then standing in force should be put in due execution according to the effects of the same And also by the same statute it was ouer that ordayned Maintenance by buying of pretēced titles That no person or persons of what estate degrée or condition soeuer he or they be shall bargaine buy or sell or by any meanes obtaine get or haue any pretenced rights or titles or take promise graunt or couenant to haue any right or title of any person or persons in or to any Manors Lands Tenements or other Hereditaments but if such person or persons which shall so bargaine giue graunt couenant or promise the same their auncestors or they by whom he or they claime the same haue béene in possession of the same or of the reuersion or remainder thereof or taken the rents or profites thereof by the space of one whole yeare next before the said bargaine couenant graunt or promise made vpon paine that he that shall make any such bargaine sale promise couenant or graunt shall forfeit the whole value of the Lands Tenements or Hereditaments so bargained sold promised couenanted or graunted contrary to the forme of this Act. And the buyer or taker thereof knowing the same shall also forfeit the said value of the said Landes Tenements or Hereditaments so by him bought or taken as is aforesaid the one halfe of the said forfeitures to be to the king and the other halfe to the party that will sue for the same in any of the kings Courts of Record by Action of Debt Bill P. or I. c. wherein no W. E. P. or I. c. if the suit be commenced by A. B. P. or I. in any of the kings Courts within one yeare next after any such offence committed or els not Prouided alwayes The possessor purchaseth a pretenced title That it shall be lawfull to any person or persons being in lawfull possession by taking of the yearely ferme rents or profites of any Manors Lands Tenements or Hereditaments to buy obtaine get or haue by any reasonable meanes the pretended right or title of any other person or persons to be made to of or in any such lands tenements or hereditaments whereof he shal be so in lawfull possession Any thing in this Act c. notwithstanding 22 23. El. Dyer 374. 6. Ed. 6. Dy. 74. Plow Com̄ 87. 11 If a man take a lease or promise a lease for the terme of certain yéeres to another of land contrary to the foresaid statute of Ann̄ 32. H. 8. What is selling of a pretenced title viz. of those lands whereof neither he himselfe nor any of his auncestors nor any by whō he doth clayme the same land haue béene in possession of the same nor of the reuersion nor remainder thereof nor taken the rents or profits thereof by the space of one whole yeare before the said bargaine graunt and demise made he is within the danger of the foresaid statute of Anno 32. H. 8. as well as if hée had made an estate for the terme of life in taile or in fée simple of the same lād for that the scope and effect of the statute is vtterly to root out of Maintenance and bargaines and promises of Titles for the which the words of the statute be That no person shall sell or buy any pretenced rights or titles And a lease is no more lawfull for one yeare then for an hundred yeares and some man will be as ready to maintaine to haue a lease for yeares as to haue a greater estate Wherefore he that doth make a lease for yeares or make promise of a lease for yeares of lands whereof he hath but a pretenced right or title shall forfeit to the King and him that will sue the whole value of the inheritance of the land as well as if he had bargained and sold the fée simple thereof But
As the law doth both condemne reiect fines and recoueries Warranties deuised by fraud which bée practised or put in execution by fraud or deceit so doth she renounce and make frustrate all sorts of warranties that be deuised or contriued vpon collusion or couin to defeat or defraud others of their iust lawfull titles for though warranties be much fauored in the law for that they be meanes to establish the title of those who be tenants of land in possession but yet if any of thē be vndertaken performed or mixed with fraud then it doth not only loose his fauor but also his force in law Co. lib. 5. 79 50. Ed. 3. 12. 43. E. 3. 7. As if land be giuen to the father for the terme of his life the remainder to his sonne heire apparant in taile and the father by couin agréement betwéene him and another to barre his sonne by a collaterall warranty of his remainder will make a lease of the same land to that other person who will make a feoffement in fée to a third person of the same land to whom the father will release with warranty and thē the father dieth the warranty doth discend vpon his sonne being of full age yet this warranty wil not barre the sonne of this land for the feoffement of the lessée for yéeres was a disseisin and the father was partaker of the offence an actor agréeing thereunto and though the release with warranty was made after the disseisin yet séeing the disseisin was made to that end the law doth adiudge the whole fact frō the beginning to be fraudulent the warranty to begin by disseisin so all that assurance to be void against the heire in taile And in like sort other warranties that do commence by disseisin be contriued to deceiue defeat the right heirs of their iust and lawfull titles 20. H. 6. 10. Regist f. 113 44. Ed. 3. 4. 12 If one do bring a Praecipe quod reddat against two other men Deceit by getting of a Protection and they do purchase a protectiō for one of thē suggesting that he is to go beyond the sea in the kings seruice whereas he doth not so but remaineth still in England and so hath done euer sithence his protection purchased by which meanes the demaundant is delayed of his suit in this case the same demaundant may haue a writ of Deceit against the said tenants for this deceit and delay and shall recouer his dammages Deceit by purchasing a writ to charge another 13 Whereas according to the course of the Chauncery Fit Nat. Br. 96. the king is to haue of euery person who doth bring against another an action of Debt of the summe of fortie pounds or more vj. s̄ viij d. for a fine and for an hundred markes vj. s̄ viij d. and so for euery hundred markes vj. s̄ viij d. and for euery Praecipe quod reddat brought of land to the yearely value of fiue markes vj. s. viij d. and so according to that rate vnlesse it be a writ of right patent If any other person doe purchase a writ in the Chauncerie in my name without my priuitie whereby I shall be charged to pay to the king for a fine any of the summes aforesaid I may haue an action of Deceit against him and recouer my dammages for this writ was obtained to put me to charges and thereby to deceiue me of so much Deceit for purchasing a writ in anothers name 14 If A. being patron of a Benefice Fitz. Na. Br. 96. Regist f. 112. 7. H. 6. 45. when the Church is void do present his Clerke to the Ordinary and B. doth disturbe him whereupon C. doth purchase a Quare impedit against B. in the name of A. returnable in the common pleas A. not knowing thereof and after doth cause the writ to be abated or A. to be nonsuit in that writ in this case A. may haue a writ of Deceit against the same C. and recouer his dammages Deceit for procuring of a suit And if B. doe procure C. to sue an action against A. whereby A. is vexed Fitz. Na. Br. 98. A. may haue a writ of Deceit against B. Deceit by acknowledging of a statute 15 If A. and B. doe come before the Mayor of the Staple Fitz. Na. Br. 105 100. Regist f. 115 or before any other Mayor of any Citie Borough or Towne hauing authority to take acknowledgement of debts and there A. doth acknowledge a statute to B. of an hundred pounds or c. in the name of C. and doth report himselfe to be C. where he is not so whereupon C. is troubled and this statute extended against him then the same C. may haue a writ of Deceit against the said A. and B. and shall recouer his dammages And so it is if another man will leuie a fine of my land in my name Deceit by doing of a iudiciall act in anothers name or confesse an action brought against me in my name or will enter into a voucher in my name 19. H. 6. 44. Regist f. 113 and confesse the demaundants action or will acknowledge a Recognizance or statute Marchant or other matter of Record in my name I haue no other remedie but by an action of Deceit But it is otherwise if he seale and deliuer an obligation in my name for I may plead that it is not my déed which I cannot doe against a Record Deceit by forging of a resignation 16 If a Notarie Fitz. Na. Br. 99. Regist f. 114 and other persons doe by agréement counterfeit the seale of any Parson or Vicar and forge letters of resignation of his Parsonage or Vicarage in the name of the same Parson or Vicar by which meanes he is remoued from the possession of the same Parsonage or Vicarage he may haue a writ of Deceit against the same forgers 20. H. 6. 36. 21. H. 7. 41. 16. Ed. 4. 9. 17 If a man doe bargaine with another to enfeoffe him of certaine lands within twenty daies Deceit by assuring of land to one man which was bargained to another or c. and after he doth enfeoffe a stranger of the same land the he with whom the bargaine was made and was deceiued therein may haue a writ of Deceit against him that so bargained and defeated him thereof And so it is if a man doe compound with another to purchase a mannor or certaine land for him and hée doth buy it for himselfe the partie may haue an action of Deceit against the same purchasor And in all cases where a man doth promise to doe a thing and he doth it falsely a writ of Deceit is maintainable against him Deceit by charging of land after sale as if a man doe promise to assure land to another and after he doth graunt a Rent charge or a common out of it or doth make a Lease for life
That all recoueries to be had or prosecuted by agreement of the parties Recoueries against particular tenants by Couin to defraud him in the reuertion or by Couin against any tenants by the Curtesie of England Tenants in taile after possibilitie of issue extinct or otherwise onely for the terme of life or liues or of estates determinable vpon life or liues of any lands Tenements or hereditaments whereof the same particular Tenant is or shal be seised of any such particular estate as is aforesaid or against any other with Voucher ouer of any such particular Tenant or of any hauing or that had right or title to any such particular estate or tenancie as is aforesaid shal as against such person or persons to whom any reuersion or remainder thereof by force of any Conueyance or deuise before that time had or made shall ought or lawfully may appertaine and against their heyres and successors be vtterly voide Prouided alwaies that this Act shall not extend to any person or persons that shall by good title recouer any lands tenemēts or hereditaments without fraud or Couin by reason of any former right or title But al euery such recouerie and recoueries vpon former rights and titles shall stand and be in like force as they were before the making of this Acte And in all and euerie recouerie and recoueries to be had or prosecuted of any lands tenements or hereditaments by the assent and agreement of any person or persons to whom any reuersion or remainder thereof then shall or ought to appertaine so that the same assent and agréement doe appeare of record in any of the Kings Courts shall stand in like strength and of like effect against such person and persons that shal so assent and agree their heyres successors as they were before the making of this act 27 And for that Couin and fraud should be restrained and punished when it shall be put in practise or intended by those in reuersion to defeate their Lessees of their termes for yeares as it was by the aforesaid Statutes when it was executed by particular Tenants to the preiudice or disheritance of them in the Reuersion Couin by him in the reuersion to defeate his Lessee for yeeres Therefore by a Statute made Anno 21. H. 8. Stat. 21. H. 8. 15 Stat. 6. E. 1. 11. it was enacted That if any persons doe make leases of their lands tenements or other hereditaments by Indentures or without writing to other persons for terme of yeares if after the same Lessors their heires or assignes do cause or suffer recoueries to be had against them in the Kings or any other Lordes Court vpon fained and vntrue title by craft and Couin to put the said Termors from their Termes all such Termor shall and may falsifie for his terme only such recouerie in such wise and forme as a tenant of fréehold shall may doe by the course of the cōmon law where such tenant was neither priuie nor party to such recouerie And the same Termors their Executors assignees notwithstanding such recouerie so had shall enioy retaine and hold their said termes according to their said leases against all such recouerors their heyres and assignees And the said recouerers their heyres and assignees after such recouerie so had shal haue like remedy against the said termors their Executors and assignees by auowrie or action of debt for the rents and seruices reserued vpon the same leases being due after the same recoueries also like actions against them for waste done after the same recoueries so had in like manner and forme as the said Lessors should or might haue had if the same recoueries had neuer beene had No manner of Statute of the Staple Couin to auoide a Statute or recognisance statute marchant nor execution by Elegit shal be auoided by meanes of any such feyned recouerie but all persons hauing any lands tenements or other hereditaments in execution or being intituled to haue execution of any lands or tenements by any such meanes shal haue like remedie to auoide and falsifie the same recouerie as before is prouided for the lessee for terme of yeares 28 There haue beene many lawes and Statutes deuised from age to age to restraine and punish seueral sorts of deceits Couins collusions and frauds but most to encounter and checke fraudulent deeds cōtriued of malice or guile to defeate Stat. 50 Ed. 3. 6. 1. R. 2. 9. 2. R. 2. 3. 3. H. 7. 4. 13. El. 5. 27. El. 4. delay or hinder others of their lands leases goods cattels debts c. as it appeareth by the statute made A. 50. Ed. 3. 1. R. 2. 2. R. 2. 3. H. 7. 13. El. 27. El. But as deceit and fraud increased in this realme so new penalties and greater punishments were inuented from time to time to inflict vpon the transgressors therin And because fained couenous and fraudulent Feoffmēts gifts graunts alienations conueyances bonds sutes iudgements executions of lands and tenements goods and cattels being deuised of Couin guile to defraud creditors and others of their iust and lawful actions dets c. be not only to the let of the due course and execution of law iustice but also to the ouerthrow of all true and plaine dealing bargaining and cheuisance betweene man and man without the which no common weale or ciuill societie can bee maintained or continued Therefore by a Statute made A. 13. El. it was enacted Stat. 13. El. 5 Stat 29. El. 5. That all and euery Feoffment gift graunt bargaine alienation Fraudulent deeds to auoide other mens debts and duties and conueyaunce of lands tenements hereditaments goods cattels or of any of them or of any lease rent common or other profite or charge out of the same lands hereditaments goods c. or any of them by writing or otherwise And all and euery bond sute iudgement and execution at any time had or made sithence the beginning of Queen Elizabeths raigne or at any time hereafter to be had or made which haue beene and are deuised contriued of malice fraud couin collusion or guile to the intent c. to delay hinder or defraud creditors others of their iust lawfull actions sutes debts accompts damages penalties forfeitures hariots mortuaries or reliefes shal be taken deemed onely as against that person his heires executors successors or assignes whose actions sutes debts accoūts c. by such guileful couenous or fraudulēt deeds deuises practises as is aforesaid are shall or mought be in any wise disturbed hindered delaied or defrauded to be cléerly void of none effect any colour fayned cōsideration expressing of vse or any other matter to the cōtrary notwtstanding And al euery the parties to such fained or fraudulēt feoffment gift graunt alienation bargaine conueyance bond sute iudgement execution Parties to fraudulent deedes c. or being priuie and knowing of the same or any of them which
shall willingly and wittingly put in vre auowe maintaine iustifie or defend the same or any of them as true simple and done or made bona fide and vpon good consideration or shall alien or assigne any the lands tenements goods leases c. to them conueied or any part thereof shall forfeit to the Queene c. and the partie grieued by such fraudulent feoffement gift bond suit c. one yeares value of the said lands c. leases rents or other profits and the whole value of the said goods and cattels and so much money as shall be contained in such couenous and fained bond to bée recouered by A. I. B. P. c. wherein no W. E. P. c. And béeing thereof lawfully conuicted shall suffer imprisonment one halfe yeare Common recoueries without Baile or Mainprise But common Recoueries had against Tenant in taile or other tenant of the fréehold of lands the Reuersion or Remainder or right of Reuersion or Remainder whereof then shall bée in any other person shall as touching such person and his heires which hath the Reuersion or Remainder thereof be of like force and none other Voucher in Formedon as the same should haue béene if this Act had not béene made And no estate or conueyance by reason whereof any person shall vse any voucher in any writ of Formedon shall bée made void by this Act But euery such voucher in any writ of Formedon shall be of like force as if this act had not béene made Lands or goods assured bona fide and vpon good cōsideration Prouided alwaies that this Statute shall not extend to any estate or interest in lands leases goods c. lawfully assured vpon good consideration and bona fide to any person or persons bodies politique or corporat not hauing at the time of such conueyance c. any knowledge of such fraud or collusion as is aforesaid Fraudulent déeds to auoid forfeitures 29 If a man to preuent a forfeiture for a felonie or vpon an outlarie Co. li. 3. 82. will make a gift of all his goods and after is attainted of felonie or outlawed these goods shall be forfeited notwithstanding this gift for this word forfeitures specified in the foresaid Statute of Anno 13. St. 13. El. 5. El. shall not be intended onely of the forfeiture of an obligation Recognisance or such like but also of euery thing which by the Law may be forfeited to the King or to a Subiect And the same Act of Anno 13. El. shall not extend onely to creditors but also to all others who haue cause of Action or suit or to haue any penaltie or forfeiture And if a man do bind himselfe and his heirs to pay to another a certaine sūme of money at a day assigned and before the day doth come of paiment Co. li. 5. 60. the obligor dieth leauing to his sonne and heire sufficient land to pay the same debt the heire doth enter and alien the same land before the obligée doth commence his suit vpon the said obligatiō If vpon the suit of the same obligation the heire do plead nothing but discent and vpon the trial of that issue the foresaid alienation be found by the Iurie to be made by fraud to deceiue the said creditor of his debt or that be pleaded the said alienation shal be void by the foresaid statute of 13. El. and the plaintife shall recouer A déed of gift must be vpon good consideration and bona fide 30 In the said Statute of Anno 13. El. there is one Prouiso St. 13. El. 5. That the said Act shall not extend to any estate or interest in lands tenements or hereditaments leases rents commons profits goods or cattels which is or hereafter shall be lawfully had made conueyed or assured vpon good consideration bona fide to any person or persons or bodies politique or corporat not hauing at the time of such conueyance or assurance to them made any manner of notice or knowledge of such couin fraud or collusion By which Prouiso it appeareth that the gift which is within the compasse of the same Prouiso must be both vpon good consideration and also bona fide And therefore whereas A. did owe to B. CC. l. and to L. a hundred pounds Co. li. 3. 80. payable by two seuerall obligations L. brought an Action of debt against A. vpon his said obligation of a hundred pound during which sute A. being possessed of goods and cattells to the valew of two hundred pounds in secret made a generall déede of gift by writing of all his goodes and cattells Realls and Personalls whatsoeuer to B. in satisfaction of his debt and notwithstanding A. continued in possession of the same goods and sold some of them and did share and brand the shéepe with his owne brand and after L. had iudgement to recouer against A. and had a Fieri facias directed to the Shiriffe of the Countie where A. dwelt who by force of the Writ came to make execution of the same goodes but B. resisted him by force clayming those to be his goodes in respect of his said déede of gift and reported that it was a good déed of gift and made vpon lawfull consideration But in the Starrechamber this was adiudged a fraudulent déede and within the statute of 13. Infallible markes of a fraudulent deede of gift Eliz. for this déed of gift had all the badges and markes of fraud for it was generall and without any exception of his apparrell bedding or any other necessary thing and the owner continued in possession of all the goods and vsed them as his owne and the déede of gift was made in secret and not sealed deliuered nor published amongst his neighbours And it was made whilest the sute was depending betwéene L. and A. And héere was a trust betwéene the Donor of these goods and the Donée for the Donor possessed the goodes and vsed them as his owne and fraude is alwayes shaddowed with trust and trust is the couer of fraud and the writing purported that the déede was made honestly truely and Bona fide which be not accustomed words in a déede of gift and vnusuall termes in any Instrument doe bréed suspition And though this was a true debt due to B. and the consideration was good yet this was not within the before specified Prouiso for that the déede of gift was not made also Bona fide for no déede shall be adiudged to be made Bona fide according to the said Prouiso which is accompanied with any trust and the words of the Prouiso be in the copulatiue vpon good consideration and Bona fide So that good consideration will not serue vnles the gift be also Bona fide viz. to the intent that the Donée shall haue carry away and enioy to his owne vse the possession of the same goodes without any trust expressed or implied and therefore whosoeuer will make a déede
contrary héereof notwithstanding St. 27. El. 4. If any person or persons haue heretofore sithence the beginning of the Q. raigne that now is made or hereafter shall make any conueiance gift grant Conueiances with condition of reuocation or alteration demise charge limitation of vse or vses or assurance of in or out of any lands tenements or hereditaments with any clause prouision article or condition of reuocation determination or alteration at his or their will or pleasure of such conueiance assurance grants limitations of vses or estates of in or out of the said lands tenements or hereditaments or of in or out of any part of parcell of them contained or mentioned in any writing déede or indenture of such assurance conueiance grant or gift and after such conueiance grant gift demise charge limitation of vses or assurance so made or had shal or doe bargaine sell demise grant conuey or charge the same lands tenements or hereditaments or any parcel thereof to any person or persons bodies politike or corporate for money or other good consideration paid or giuen the said first conueiance assurance gift grant demise charge or limitation not by him or them reuoked made voyde or altered according to the power and authoritie reserued or expressed vnto him or them in and by the said secret conueiance assurance gift or grant Then the said former conueiance assurance gift demise and grant as touching the said lands tenements and hereditaments so after bargained sold conueied demised or charged against the said bargainées vendées lessées grauntées and euery of them their heirs successors executors administrators and assignes and against all and euery person and persons which haue shall or may lawfully claime any thing by from vnder them or any of them shall be déemed taken and adiudged to be voide frustrate and of none effect by vertue and force of this present Act. St. 27. El. 4. Prouided neuerthelesse that no lawfull morgage made or to be made Bona fide and without fraud or couin vpon good consideration Morgages shall be impeached or impaired by force of this Act but shall stand in the like force and effect as the same should haue done if this act had neuer béene had or made Anie thing c. This Act nor any thing therin contained St. 27. Eli. 4. shall extend or be construed to make good any purchase Assurances of lands defeated before the Statute grant lease charge or profit of in or out of any lāds tenements or hereditaments héeretofore made void defeated or vndone by reason or any former conueiance graunt or assurance so as the partie or parties or their heirs or assignes which haue so defeated or made void the same were in actuall possession the first day of this present Parliament of or in the said lands The authority of the court of Starre-chamber tenements or hereditaments whereof or out of which any such purchase graunt lease charge or profite was made Neither this Act nor any thing therein contained shall extend in any sort to restraine or impaire the iurisdiction power or authoritie of the Court of Starrechamber A purchasor doth know before of a fraudulent déede 32 If a man seised of land in fée Co. li. 5. 60. do make a fraudulent conueiance thereof to the intent to deceiue and defraud purchasors contrary to the said Statute of Anno 27. Eliz. and doth continue in possession of it and taketh the profite of it and doth after enter into communication with a stranger for the sale of it to him and by chaunce the same stranger hath knowledge of the same fraudulent assurance and notwithstanding he doth bargaine with the same party for his land doth conclude with him and taketh his assurance from him in this case the same purchaser shal auoide this former fraudulent cōueiance made by the seller of this land though hée had notice thereof before for the said Act of Anno 27. Elizab. by expresse words doth make the fraudulent conueiance voide touching the purchasor and séeing it is within the expresse puruiew of the same Statute it is to be so taken and construed in repressing of fraud and it is not the purchasors knowledge thereof that doth make the fraudulent conueiance good which the said statute hath made voide The father maketh a fraudulent lease and the sonne selleth the land 33 If the father doe make a lease for yeares of his land by couin Co. li. 6. 72. to defraud others to whom he will demise or sell the same land as all fraudulent leases shall be intended to be made to that end and before he doth sell or demise the same land he dieth and his sonne and next heire knowing or not knowing of the said lease doth sell the same land for good consideration Then the purchasor shall auoide this lease by force of the foresaide Statute of Anno 27. Elizab. for séeing the Lawe doth presume that euery fraudulent lease is made generally to defeate purchasors lessées c. within this generality euerie particular purchasor farmor lessée c. is included And it is not materiall though he who sold the land did not make the former fraudulent lease estate or incombrance but if the estate be fraudulent the purchasor shall auoide it whosoeuer selleth the land A womans iointure made by fraud 34 And the same Lawe is if a man doe conuey land to the vse of his wife Co. li. 6. 73 for her iointure by deceit and couin to defraud a purchasor to whom he intendeth to sell the same land in this case if the same fraud be prooued by euidence or confessed by pleading the purchasor shall auoide the said wiues estate Fraudulent déeds to defeat successors of disapidations 35 Because diuers Ecclesiasticall persons being possessed of mansion houses and other buildings belonging to their Ecclesiasticall Benefices or liuings did suffer the same for want of due reparations partly to decay and partly to fall downe conuerting the timber lead and stone to their owne vses and also made déedes of gift and colourable alienations and other conueiances of like effect of their good and cattels in their life time of purpose after their deaths to defraud their successours of such iust Actions and remedies as otherwise they might and should haue had against the executours or administratours of their goodes by the Lawes Ecclesiasticall of this Realme for the redresse whereof by a Statute made Anno 13. Elizab. it was enacted St. 13. El. 10 St. 1. Iac. 25 That if any Archbishop Bishop Deane Archdeacon Fraudulent déedes to defeate successors of dilapidations Prouost Treasurer Chancellor Chaunter Prebendarie or any other hauing any dignitie or office in any Cathedrall or Collegiat Church within this Realme or any Parson Vicar or other Incumbent of any Ecclesiasticall liuing whereunto doe belong any houses or buildings which by lawe or custome hée is bound to maintaine in reparation doe suffer any
yeare vnder their couent seales within one yeare next before the making of the said act should be vtterly void St. 31. H. 8. 13 And by a like statute made Anno 31. H. 8. it was ordayned That all leases of lands tenements or other hereditaments not vsually let leases of lands c. in reuersion leases of lands c. not reseruing the old and accustomed rent sales of wood assurances of lands of the kings gift or auncient foundation without the kings licence made by any abbots or gouernours of any Monasteries or other religious houses which were before the making of the said act dissolued within one yeare before the comming to the K. hands of the same Monasteries religious houses c. or which after that should bee dissolued or come to the kings hands should be vtterly void for the same leases sales of wood and assurances were intended to be made by fraud to deceiue the king of certaine commodities which the makers of that statute did meane and intend to giue him 40 Where maidens and women children of noblemen gentlemen and others as well such as were heires apparant to their auncestors as others hauing left vnto thē by their father or other auncestor friends lands tenemēts hereditaments or other great substance in goods cattels moueable for and to the intent to aduaunce them in marriage somewhat like according to their degrées and as might be most for their surety comfort as wel for themselues as of all other their friends kinsfolks were ofttimes vnawares to their said friends or kinsfolkes by flattery trifling gifts faire promises and other such deceitfull fraudulent practises of many vnthrifty light persons therunto by the intreaty of lewd persons others that for rewards bought and sold the said children secretly allured and woon to contract matrimonie with the said vnthrifty light persons and thereupon either with sleight or force oft times were taken conueyed away from their said parents friends or kinsfolkes to the displeasure of God disparagement of the said children continuall heauinesse of all their friends For the redresse and preuention wherof by a statute made Anno 4. St. 4. 5. P. M. 8. 5. P. M. it was enacted Deceitfull conueying a maid inheritable vnder xvj yeares of age That it shall not be lawfull to any person or persons to take or conuey away or cause to be taken or conueyed away any maid or woman child vnmaried being within the age of xvj yeares out of or from the possession custodie or gouernance and against the will of the father of such maid or woman child or of such person or persons to whom the father of such maid or woman child by his last Will or by any other act in his life time shall assigne bequeath giue or graunt the order kéeping education or gouernance of such maid or woman child except such taking conueying away as shal be had made or done by or for such persō or persons as without fraud or couin then shal be the master or mistresse or the gardian in socage or gardian in chiualry of or to such maid or woman child St. 4. 5. P. M. 8. If any person or persons aboue the age of xiiij yeares shal vnlawfully take or conuey The forf for taking away a maid vnder 16 yeares of age or cause to be taken or conueied any maid or woman child vnmaried being within the age of xvj yeares out of or from the possession against the will of the father or mother of such child or out of or from the possession of such person or persons as then shall haue by any lawfull wayes or meanes the order kéeping or education or gouernance of any such maid or woman child then euery such person persons so offending being thereof lawfully attainted or conuicted by the due course of the law of this realme other then such of whō such person taken away shall hold any lands or tenements by knights seruice shal be 2. yéeres imprisoned of his or their bodies without baile or mainprise or els shall pay such fine for his or their said offence to the Q. and party grieued as shal be assessed by the Q. counsell in the starre chamber at Westminster If any such person or persons shall so take away St. 4 5. P. M. 8. or cause to be taken away as is aforesaid Taking away deflouring or cōtracting matrimony with a woman c. and defloure any such maid or woman child as is aforesaid Or shall against the will or vnknowing of or to the father of such maid or woman child if the father be in life or of or to the mother of such maid or woman child hauing the custody gouernance of such child if the father be dead by secret letters messages or otherwise contract matrimony with any such maiden or woman child except such contracts of matrimony as shal be made by the cōsent of such person or persons as by the title of wardship shall then haue or be intituled to haue the mariage of such maid or woman child then euery such person or persons so offending being thereof lawfully conuicted as is aforesaid shall suffer imprisonment of his or their bodies by the space of fiue yeares without baile or maineprise or els shall pay such fine for his or their offence to the Quéene and party grieued as shal be assessed by the Quéenes Counsell in the Starre-Chamber The Quéenes Counsell of the Starre-chamber by bill of complaint or information Who may hear and determine these offences and Iustices of Assise by inquisition or indictment St. 4 5. P. M. 8. haue authority to heare and determine the said offences vpon euery which indictments and inquisitions such processe shall be awarded as vpon an indictment of Trespas at the common law If any woman child or maiden being aboue the age of xij St. 4 5. P. M. 8. yeres and vnder xvj A woman consenting to an vnlawfull contract doe at any time cōsent to such person that so shall make any contract of matrimonie contrary to the forme and effect of this statute then the next of her kinne to whom the inheritance should returne or come after her decease shall from the time of such assent haue and enioy all such lands tenements and hereditamēts as she had in possession reuersion or remainder at the time of such assent during the life of such person that so shall contract matrimony and after the decease of such person so cōtracting matrimony thē the said lands shall discend reuert remaine and come to such person or persons as they should haue done in case this act had neuer béen made other then to him onely that so shall contract matrimony But this act shall not extend to take away or diminish any liberty custome St. 4 5. P. M. 8. or authority cōcerning any
is an oppression and for the redresse thereof the same tenant may pursue against his lord a Writ of Ne iniuste vexes grounded vpon a braunch of the statute of Magna Charta St. 9. H. 3. 10 thereby commaunding the Lord that he shall not oppresse nor vniustly vexe his tenant for more rent or seruices then hée ought to pay or doe 12. E. 4. 7. 28. Ass p. 33 5. Ed. 4. 82. Or otherwise the tenant may auoid this surplusage of rent in an Assise Writ of Rescous or Cessauit brought against him by his lord but in a Repleuin he cannot auoid his lord of this rent newly incroched séeing the same lord hath had seisin thereof and so it is if the lord of a Manor 40. Ed. 3. 44. 49. Ed. 3. 22. 39. E. 3. 6. which is auncient demesne will encroch vpon his tenants and distraine them or any of them that hold their lands by Charter fréely to doe other seruices or customes to the same lord then they ought to doe or that their auncestors were accustomed to do this is an oppression of the same tenants and for the redresse thereof all the tenants of the said auncient demesne Manor may haue against their said lord the kings writ of Monstrauerunt directed to the said lord commaunding him thereby that hée shall not require nor cause to bée required of his said tenants more seruices or customes then they ought to doe Fitz. Na. Br. 14. or had wont to doe And if after the said writ directed he will distraine the goods of them or any of them againe to doe more seruices then they ought to doe Then the same tenants or such or so many of them as bee so distrained may procure an attachment against their said lord Fitz. Na. Br. 15. returnable in the K. Bench or common place for this oppression and contempt wherin euery of the same tenants shall recouer his dammages seuerally according to his losse 8 Euery excessiue amerciament which one person doth take of another Oppression by excessiue amerciament is also to be accounted an oppression of the party so amerced for by the Statutes of Magna Charta West 1. St. 9. H. 3. 14 3. Ed. 1 6. it is ordained That no Citie Borough Towne or man shall be amerced but for a reasonable cause and according to the quantitie of his offence and euery fréeman shall bée amerced sauing his fréehold a marchant sauing his marchandize and euery other mans villaine besides the kings sauing his villaine tenure and the same amerciaments shall bee assessed by the oath of honest and lawfull men of the same vicenage So that if one person doe take a much greater amerciament of another then the quantitie of his offence doth require in a Court Baron or other Court which is not of record or doe take that amerciament of his owne authoritie without being before assessed by others vpon their oathes and so maketh himselfe iudge in his owne cause this is an oppression of the party amerced for the redresse whereof the party grieued may procure to be directed to the lord of the said Manor or to his Baylife a Writ of Moderata misericordia which was founded vpon the said stat of Magna Charta commaunding them thereby Fitz. Na. Br. 75. that they shall take a moderat and indifferent amerciament of the same person according to the quantity of his offence And if the lord or his baylife will not then cease to distraine for the said excessiue amerciament the partie so oppressed may haue against the offendor an attachment directed to the Shirife of that Countie where the same Distresse is taken to attach him to appeare in the kings Court and to answere his said offence Oppression by committing of wast 9 The Wast and Estrepement which one person hauing a particular estate in another persons land doth make or commit to the disheritance of him in the reuersion or remainder of the same land without his consent may also be accounted an oppression of him in whom the said inheritance is for when one person doth lease or otherwise conuey his land to another for the terme of life liues or yeares he doth in effect but lend the same land to the sayd particular tenant for the terme betwéene them agréed vpon expecting to haue the same againe at the end of the terme in as good plight and in such sort as it was when he first did deliuer and lend it And therefore if the particular tenant during the continuance of his estate doe commit any wast in the same land he cannot deliuer it againe at the end of his terme in such plight and sort as at the first he did receiue and borrow it but by the wast the perpetuall profit of the land is impaired and therefore of so much in value hée in the reuersion or remainder is disherited And for the preuention thereof by the statute of Marlebridge it was ordained St. 52. H. 3. 24. That Farmors during their termes shall not make wast sale or exile of houses woods or men nor of any thing belonging to the Tenements which they haue in farme without they haue speciall graunt in writing making mention of a couenant that they may doe it And to the intent that condigne punishment might bée prouided and inflicted vpon such as should be transgressors and oppressors in these cases of Wast by the statute of Gloucester it was enacted St. 6. Ed. 1. 5 That a man shall haue an action of Wast in the Chauncerie against him which is tenant by the courtesie of England The tenants forf which cōmitteth wast or otherwise tenant for terme of life or for terme of yeares or against a woman which holdeth in Dower and he which shall bée attainted of Wast shall forfeit the thing wasted and besides shall pay treble so much as the Wast shall be taxed and after by the statute of Westminster the second the same was in a sort confirmed St. 13. E. 1. 14 and the said action of Wast was againe giuen against the foresaid tenants by the courtesie in dower for terme of life or yeares and also ordained to extend against Gardens And by the same statute the proces to be vsed in the said action of Wast was assigned to be Summons Attachment and Distresse and if the party defendant doe not appeare at the distresse then a writ shall be awarded to the Shirife to inquire of the wast by the oathes of twelue men And because diuers persons did let their lands to others sometime for terme of life or anothers life and sometime for terme of yeares and after the said tenants did graunt their estates which they had in the same Lands and Tenements to others to the intent that they in the reuersion viz. their lessors their heires or assignées should not take knowledge of their names and yet the first lessees did continually occupie the said Lands and tooke the profites to
any person which shall haue shéepe at the time of the marriage by reason whereof the said person shall by such meanes haue aboue the number of 200 then he shall loose no penalty for hauing aboue the number of 2000. shéepe by such meanes so that within one yeare next after such aduancement he do put to sale or otherwise dispose so many of the said shéepe so to him aduanced or els of his owne shéepe that he had before so that aboue one yéere he shall not kéepe haue or occupy by any such means or otherwise by any fraud any more number of them then is before limitted vpon paine before rehearsed If any person by his last Will giue to any child within age any number of shéepe Sheepe giuen by will to a child within age appoint them by his last will to be kept by his executors St. 25. H. 8. 13. or by any other person vntill the foresaid child shall come to a certaine age limitted by his last will then after the death of the Testator the said shéepe so being in possession of the executors or of any other person to the vse of any such child within age for the time that he shall be limitted to haue the said shéepe by the will of the Testator shal not be accounted against the said executors nor any person hauing the shéepe for the intent aforesaid any of the number of the said shéep prohibited by this act Euery person being the kings temporall subiect 25. H. 8. 13 or borne vnder his obeysance Shéepe kept vpon inheritance or fréehold which shall haue or be seised of inheritance in possession or in vse or that shall haue a iointure in vse or in possession or shal be tenant in dower or by the courtesie of or in any manors lands tenements pastures féedings or liberty of foldage within any part of this realme of England Wales or the Marches of the same may haue kéepe maintain vpō the same his own demesn lands all other his pastures féedings fold courses which he so hath as many his own shéepe lambs in number to his own proper behoofe as he lawfully might haue had kept vpon the same at any time before the making of this act In case any such person hauing any such estate in vse or in possession of 25. H. 8. 13 or in any lands He that kéepeth his number vpon his inheritance shall not keepe vpon a farme tenements pastures féedings or liberties of fold courses do kéep vpon the same the number of 2000. shéepe or aboue then he shall not in any wise kéepe or haue any shéepe aboue the number of 2000. vpon any lands pastures or féedings which he shal haue in farme or otherwise vpon pain of forf for euery shéepe besides the said number of 2000. 3. s̄ 4. d. In case the said demesne lands tenements pastures féedings 25. H. 8. 13 liberties of fold courses of any person before rehersed Shéepe kept vpon demesns and farmes suffice not for the féeding pasturing kéeping of 2000. shéepe then any such person may haue or féed vpon the said demesn lands vpon his farme holds which he lawfully may haue to the said number of 2000. shéepe not aboue vpon paine of forf for euery shéepe aboue that number 3. s̄ 4. d. It shal be lawfull to euery person kéeping a houshold 25. H. 8. 13 to haue frō time to time such conuenient number of shéepe Shéepe kept for the maintenance of a mans house aboue the number expressed in this act as shal be necessary for the only expences of his houshold to be prouided kept and fed in and vpon his own lands or other lands such as he lawfully can prouide for in farme or otherwise so that he at no time shall haue for the expence of his houshold or by colour of the same aboue the number to him limitted by this act any number of shéepe moe then shall suffice for the onely expences of his household for one yeare without fraud or couin And it is lawfull for all spirituall persons Spirituall persons to kéepe such and as many shéepe vpon their owne lands and after such manner and none otherwise as they might haue done before the making of this act 20 As it is a thing farre vnfit and not consorting with their function that spirituall persons who ought to liue of the altar and to be chiefely imployed deuoted to the seruice of God the administration of his sacraments preaching of his Word instruction of his people should busie themselues with taking of farmes buying selling for gaine in faires markets occupying of Parsonages or Vicarages by farme or with the vsing or keeping of Tanne houses or Brewhouses So it is an oppression and meanes of impouerishment of other temporall persons who do chiefely or partly liue by the same trades and therfore by a stat made An. 21. St. 21. H. 8. 13 H. 8. it was enacted Oppression by spirituall persons in taking of farmes That no spirituall person shall take to farme to himselfe or to any person to his vse of the lease or grant of the K. or any other person or persons by letters patents indentures writings by word or otherwise by any manner of means any manors lands tenements or other hereditaments for terme of life yeares or at will vpon paine to forf for euery moneth that he or they to his vse doe occupy such farme by reason of such graunt or lease x. l. to the king and him that will sue to be recouered in any of the kings Courts by A.B.P. I. wherein no W.E.P. Oppression by thē in buying and selling And that no spirituall person of what estate or degree soeuer he be shall by himselfe or any other for him to his vse bargaine and buy to sell againe for gaine in any markets faires or other places any manner of Cattell Corne Lead Tin Hides Leather Tallow Fish Wooll Wood or any manner of victuall or marchandize of what kind soeuer they be vpon paine to forfeit treble the value of the things so bought to sell againe to the king and him that will sue to be recouered in any of the kings Courts by A.B.P.I. wherein no W.E.P. But a spirituall person who without fraud buyeth any horses cattell goods c. with only intent at the buying thereof to imploy the same to the necessary apparrell of himselfe his seruants or houshold or for the only occupying or manuring of his glebe or demesne lands annexed to his church or for the necessary expences of his household and after the buying or exercising thereof misliketh the same that they should not be good profitable and conuenient for the purposes abouesaid for the which they were bought then he may lawfully bargain and put them away And also other spirituall persons not hauing sufficient glebe or demesne lands in their owne hands in the right of
many aliens then shall there be put in such enquests or proofes as many aliens as shall be found in the said Townes or places which be not thereto parties as afore is said and the remnant of denizens which be good men and not suspitious to the one party or to the other At the common Law before this statute and the statute of 27. Ed. 3. St. 27. E. 3. 8 this Triall per medietatem linguae might haue béene obtained by the Kings graunt as if the King had graunted to a company of aliens M. 22. Ed. 3. 14 viz. of Almaines Frenchmen c. that when any of them was impleaded the one halfe of the Enquest should haue béene of their owne language and after to make that a generall Law the statute of 27. Edw. 3. was made But séeing that statute did not remedie the mischiefe where the King was party the before rehearsed statute of 28. Edw. 3. was prouided which maketh mention generally of aliens therefore it is not materiall of what Nation those aliens are which shall be of the Enquest so that they be aliens though they be of another Nation then the party to the suit is And because this Statute was ordained for the benefit of aliens and of none but of aliens and for that there were in this Realme of long time assembled some strangers together with many English vagrant Rogues and Vagabonds calling themselues Egyptians which by their counterfeit spéeches apparell and behauiour could hardly be discerned one from the other Therefore by a Statute made Anno 22. H. 8. St. 22. H. 8. 10. it is enacted That if it happen any outlandish person calling himselfe an Egyptian Egyptians or any such stranger to commit within this Realme any Murther Robbery or Felony and thereof to be indicted and arraigned and to plead not guilty or any other plea triable by the Countrey then the Enquest that shall passe betwéene the King and such party shall be altogether Englishmen And by another Statute made Anno 1. 2. Ph. Ma. St. 1. 2. P. M. 4. it was ordained That if any of the said persons called Egyptians which shall bée transported or conueyed into this Realme of England or Wales doe continue within the same by the space of one moneth that then hee or they so offending shall by vertue of this act bée adiudged a Felon and Felons and shall suffer death losse of lands and goods as in cases of Felony and shall vpon the triall of him or any of them be tried by the County and the inhabitants of the County or place where he or they shall be apprehended or taken and not per medietatem linguae and shall loose the benefit of Clergy and Sanctuary And whereas the words of the foresaid Statute of 28. Edw. 3. be That in all manner of Enquests and proofes which are to bee taken c. those words are not to be construed of an Indictment for that may be taken all of Denizens though it doe concerne an Alien But the Statute is to be intended of such Enquests where the party is admitted to his challenge and so he is not vpon an Indictment for the party which is an alien may vpon his arraignement haue the said challenge in the array 21. H. 7. 32. to shew that in the pannel there is not medietas linguae according to the statute for he hath none other remedie being defendant But if hée were plaintife it should bée otherwise for then before the Venire facias awarded hée must suggest that he is an Alien and pray Proces to summon the Iurie De medietate linguae according to the Statute and further hée must surmise in what parts beyond the seas hée was borne Lib. Int. to the intent that men of the same countrey may bée of his Enquest if they may bée had and if they will not signifie that before the Venire facias awarded hée shall not suggest it after neither shall he challenge the Array or Polles for that cause séeing it was his folly M. 22. E. 3. 20. that hée tooke not the benefit of the Statute in due time and specially when hée knew himselfe to bée an Alien And whereas the words of the foresayd Statute of 28. Edw. 3. bée That are not parties nor with the parties in contracts pleas or other quarrels whereof such Enquests or proofes ought to bée taken By these words it doth appeare that the makers of this Statute would that the parties should haue their Challenges to the Polles in those sayd cases And therefore though they haue not expressed but certaine cases which induce hatred or malice yet by the mentioning of them it séemeth that they intended to allow all Challenges which doe induce fauour or otherwise And the foresaid Statutes of 27. Edw. 3. 28. Edw. 3. doe onely extend where there is but one onely of the parties to the suit an alien for if they be both aliens the Enquest shall be all of Englishmen and not de medietate linguae vnlesse the plea be depending before the Mayor of the Staple 21. H. 6. 4. and both the parties be Marchants of the Staple or officers of the Staple in which case then by the Statute of 27. Edw. 3. 8. the Enquest shall be all of aliens If an alien be indicted of high Treason Treason P. 3. 4. P. M. â—â— y. f. 144 St. 1. 2. P. M. â—0 Dyerf 304 he shall not haue his triall per medietatem linguae but the triall shall be according to the due order course of the common Lawes of this Realme And if a Scot be indicted of Felony he shall not haue his triall per medietatem linguae A Scot. for that a Scot was neuer accounted an Alien but rather a Subiect Challenge for want of sufficient fréehold 4 There is another Challenge vpon cause viz. for want of sufficient Fréehold which is a Challenge of the Polles and this Challenge was giuen by the Statute of 2. H. 5. St. 2. H. 5. 3. which doth ordaine That no person shall be admitted to passe in any Enquest vpon tryall of the death of a man or in any Enquest betwéene party and party in plea reall or in plea personall whereof the debt and dammages declared doe amount to forty markes aboue all charges if the same person hath not Lands and Tenements of the yearely value of fortie shillings aboue all charges so that he be challenge for that cause by the party And because many Marchants aliens and other aliens which neither had nor could purchase any Land in this Realme were greatly discontented with the foresaid Statute of 2. H. 5. and were ready to depart this Realme for that the same Statute did take away or was expounded to diminish the chiefe force of the before mentioned Statute of 28. Edw. 3. 13. and by that meanes to abridge aliens of their Trials in most cases per medietatem
condemned and which be fugitiue wheresoeuer they bée found And if they haue any freehold it shall bée forthwith seised into the Kings hands and the King shall haue the profits thereof by the space of a yeare and a day and the land shall bée wasted and destroyed in the houses woods and gardens and in all things belonging to the same except men of certaine places priuiledged And after the King hath had the yeare day and wast the land shall bée restored to the chiefe Lord of the same fee vnlesse that before he redéeme the same yeare day and wast of the King by the paiment of a fine But there is a custome in the Countie of Glocester that after a yeare and a day the lands and tenements of Felons in that Shire shall reuert and be restored to the next heire to whom they ought to haue discended if the felonie had not béene committed And in Kent in Gauelkind the father to the bough the sonne to the plough there all the heires males shall diuide their inheritance and likewise women but women shall not make partition with men 33 By force of which stat of Praerogatiua Regis The yere day and wast of lands of what title shal be forfeited euer sithence that time the King hath had all the thrée things aforesaid viz. the yeare the day and the wast of the lands of him which was attainted of felonie as one of the prerogatiues annexed to the Crowne in all cases where the felon had such an estate in his land Bracton de Corona cap. 13. that he might forfeit the same after his death and that hee himselfe might lawfully haue made wast in the same without being impeached therefore And therefore if the felon be but tenant for the terme of life or for the terme of yeares of lands the king shall not haue the yeare day and wast of them after the felons death for then he might wast another mans inheritance But if a man that is seised of lands in the right of his wife do commit felonie and is attainted thereof the king shall haue the profits of the land during the husbands life if the wife doe liue so long Fitz. Cor. 327. And some doe affirme that the king shall haue the yeare day and wast of the said wiues lands after the felons death because the felon during his life might haue committed wast therein and for that the felon had such an estate in his wiues lands that by the common law he might in his life haue made alienation of them and driuen his wife to her Cuiin vita to haue recouered them But that séemeth to be helped if any such law were before by the Statute of Anno 32. H. 8. where it is ordained That no fine feoffement or other act made suffered St. 32. H. 8. 28 or done by the husband onely of any lands tenements or other hereditaments being the inheritance or fréehold of his wife during the couerture betwéene them shall in any wise be or make any discontinuance thereof or be preiudiciall or hurtfull to the said wife or her heires or to such as shall haue title interest or right to the same by the death of such wife But the same wife or her heires and such other to whom such right shall appertaine after her decease shall and may then lawfully enter into such lands c. according to their rights and titles therein notwithstanding such fine feoffement or other act fines leuied by the husband and wife whereunto the said wife is partie and priuie only except By which Statute the wife after the death of her husband may enter into her owne land notwithstanding any attainder forfeiture or other act done by her husband No yere day and wast of lands holden by ioynt purchase 34 A man seised of land in fée simple holden of a common person did infeoffe thereof the husband and wife and their heires the husband committed felonie and was attainted thereof the King seised the land into his hands for his yere day and wast and after the Kings said terme expired 4. E. 3. 47. the Lord of the fée of whom the same land was holden did sue in the Chauncerie to haue the same land restored to him to whom by warrant the Escheator did deliuer the same lend vpon whose possession the wife of the felon attainted did enter and the said Lord of the fée reentred vpon her whereupon the sayd woman brought an Assise against the sayd Lord and recouered the land Because the fée simple of the same land being in the wife by reason of the ioynt purchase with her husband the K. ought not to haue had the yeare and day after the felons death nor the Lord of the fée the land after by Escheat 35 If tenant in tayle Tenant in tayle generall or speciall or tenant in franke mariage of land do commit petit Treason or Felonie and is attainted thereof and executed the King after his death shall neither haue the yeare day or wast in the felons land nor the Lord of the fée shall haue the land by Escheat but after the felons death the same land shall discend reuert or remaine secundum formam doni to the next heire in tayle of the felon or to him in the reuersion or remainder thereof for in this case the felon was in effect but tenant for the terme of his owne life and thereby could not forfeit a greater estate in his land than that which he had And in in like sort if he that hath land by fresh disseisin or is tenant in fee farme of land A disseiser Tenant in fée farme A mortgagée vpon condition to pay the vttermost yearely value thereof or hath land in Mortgage to be redeemed by the Mortgager vpon condition of payment of money or other condition doth commit petit treason or felonie and is attainted thereof the King shall not haue the yeare day and wast for that would tend to the preiudice of others not partie to the offence who haue or may haue a better right and title to the same lands than the felon attainted Fi. Cor. 310 36 If a man that is owner of land in antient demesne Tenant in antient demesne which hee may sell without consent of the Lord doe commit petit Treason or Felonie and is attainted thereof the King shall haue the yeare day and wast notwithstanding that he hath vsed to surrender the land into the Lords hands by a rod in the Court vpon euerie alienation thereof But if he be owner of the land in auntient demesne of a base tenure it is otherwise Fitz. Cor. 290. 37 A man that tooke a Church for felonie escaped and the towne pursued The yere day wast without attainder and killed him because he would not yéeld himselfe and this matter was presented before the Iustices in Eyre and they adiudged that his goods and the profits of his lands
should be forfeited to the King from the time of his flying vntill the presentment and also that the King should haue the yeare day and wast S. Br. 30. But this land shall not come to the Lord of the fée by Escheat because hée was not attainted of felonie Pi. Cor. 332 38 The King shall not haue the yeare day The yere day and wast of a Clerke conuict Land of small value and wast of the lands of a clerk conuict neither shall the Lord of the fée haue the forseiture thereof for that the offendor is not attainted but onely conuict of felonie And if the land of the felon attainted be but of the yearely value of thrée or foure shillings or of so small value Fi. Cor. 327 that it will cost more to obtaine it by suit out of the Kings hands than it is worth then the King shall not haue the yeare day and wast thereof St. 17. E. 2. 16 39 The words of the foresayd Stat. of Praerogatiua Regis be If they haue any fréehold When the K. shall haue the felons yeare day and wast it shall bée presently seised into the Kings hands This word presently ought to bee intended immediatly after the Office found and not before 49. E. 3. 11. Fitz. N. B. fol. 144. And therefore if an Office of that land bee not found vntill it bee many yeares after the felons attainder yet from the time of the Office found vntill a yeare and a day after the King shall haue the Felons lands And also the King shall haue the profit of the Felons lands from the time of his attainder vntill the Office bée found thereof though it bée twentie years betwéene the attainder and the Office for the heire of the felon cannot haue it in respect of the corruption of bloud And the Lord must not haue it by Escheat vntill the King bée intituled vnto it by Office and vntill one yeare and a day after and vntill the King hath wasted it vnlesse the Lord doth agrée with the King in the meane time for the sayd yeare day and wast And moreouer Fitz. Trauerse 48. 4. E. 3. 47. the Lord cannot at any time enter into the same land as escheated vnto him vntill hée hath sued a writ to haue it deliuered vnto him out of the Kings hands for after a writ is awarded to find the land of him that is attainted of Felonie another Writ shall bée directed to enquire if the King hath had the yeare Regist fol. 165. day and wast and that beeing found the Lord shall haue the land out of the Kings hands and not before because though the attainder of the Felon was found and that the King ought to haue had the yeare day and wast yet it may bee that the King neuer had the profit thereof but was interrupted by some pâ—â—â—on or by some casuall meanes 40 This commoditie to the King and forfeiture of the felon of the yeare Fit Cor. 310 day and wast is such a benefit to the King and so firmely and highly annexed to the Crowne The yere day and wast not grantable froÌ„ the Crowne that it cannot be seuered from it or granted to any other neither can any person claime it by colour of any franchise or libertie But after the King is intituled vnto it by Office hée may graunt or commit the land to another during the yeare and day and also giue him authoritie to take the benefit of the wast What goods of felons the king shal haue 41 The words of the foresaid stat of Praerog Regis be The K. shal haue all the goods of felons which be condemned and which bee fugitiue which is as much to say as he shall haue all their goods mouable and vnmouable for the King shal haue the corne growing vpon the land of the felon attainted and the issues and profits of the land which he hath in his owne right or in the right of his wife during the time of his life or vntill he doth purchase his pardon But touching the profit of fugitiues lands there is a difference betwéene a flying presented before the Coroner and a flying found by verdict vpon an acquitall for vpon a flying presented before the Coroner Forfeiture vpon flying Fi. Cor. 296 344. he shall forfeit the profits of his lands vntill his death or vntill he be acquit or vntill he hath purchased the K. pardon but vpon a flying found by verdict vpon acquitall he shall forf no issues of his lands for by his acquitall the land is discharged and consequently the issues thereof From what time forf of land shal haue relation 42 The law hath restrained offendors in Treason and Felonie to certaine times to make alienation of their lands and goods and hath prefixed limits whereunto the forfeiture of their said lands and goods shall haue relation and yet with this difference That as soone as any Treason or Felonie is committed the offendor therein is restrained to make any alienation of his lands for then it is not his land but by the committing of the Treason or Felonie Pl. Com. 263. 30. H. 6. 5. Bracton Fitz. Forf 30. Bracton l. 2. 13. hee hath forfeited all the estate which he had therein And therefore if betwéen the time of the committing of the Treason or Felonie and of the offendors attainder thereof the offendor doth make any alienation or assurance of his land after the time that the offendor shall be attainted of the same Treason or Felonie the said assurance shall bée void whether the same attainder bée by verdict confession or outlawrie for the forfeiture of the land shall haue relation from the time of the offence committed From what time the forf of goods shall haue relation 43 The forfeiture of goods and chattels shall not looke backe so farre as forfeyture of landes nor shall haue relation from the time of the Treason or Felonie committed but from the time of the Attaynder of the Treason or Felonie And therefore if one doe commit Treason or Felony Fi. Forf 30 and in the meane time betwéene the Treason or Felony committed and the offendors attainder thereof the offendor doth giue away his goods this is a good gift for as yet they be not forfeit but be his owne to maintaine himselfe and his family vntill he be attainted of Treason or Felony and by the Law adiudged not worthy to possesse or enioy goods nor to haue sustenance And therefore if vpon a fugam fecit presented before the Coroner one doe forfeit his goods he shall not forfeit those goods that hée had at the time of the Felony committed but he shall onely forfeit those goods which he had at that day when the fugam fecit was presented against him And in like sort if one that is indicted of Felony be acquit thereof by verdict and in their verdict the Iury doe find Fi. Cor. 296 that
9 And because seruants in husbandrie labourers artificers and other persons of meane degrée should take no incouragement nor occasion to breake the peace nor weare any weapons therewith to menace threaten or terrifie others Therefore by a Statute made anno 12. R. 2. it was ordained St. 12. R. 2. 12. That no seruant in husbandrie or labourer nor seruant of artificer or victualler shall beare any Buckler Dagger or Sword vpon paine of forfeiting of the same except it be for the defence of the realme in the time of warre and then by the suruey of Arraiers for the time beeing or in trauelling with their masters or on their masters businesse And Sherifes Mayors Baylifes and Constables shall haue power to arrest all offendors against this Statute and seize the said Bucklers Swords and Daggers and kéepe them vntill the Sessions of the Iustices of peace and the same shall present before the same Iustices in their Sessions together with the names of them that did beare the same But this shall not be preiudiciall to the franchises of Lords touching forfeitures due to them By the foresaid two Statutes of 2. Ed. 3. and 12. R. 2. it doth appeare that the meaning of the makers of those lawes was not onely to preserue peace to eschew quarrels but also to take away the instruments of fighting and batterie and to cut off all meanes that may tend in affraie or feare of the people Assurances made by menace 10 As menace of life and member giueth cause of an action of trespasse to him that receiueth losse or hurt thereby intituleth the king to a fine 20. Ass p. 14 28. H. 6. 8. in like sort an obligation a release or déed of annuitie made and granted by menace are voidable by the law so that the same menace be of life member or libertie viz. of some hurt to be done to his body by death maiheming or imprisonment and not to his lands or goods for if A. will menace B. that if he will not make him an obligation of xx l that then he wil disseise him of such land 7. Ed. 4. 21. 4. H. 4. 2. 39. H. 6. 51. or dispossesse or take from him such goods in this case if B. doe make and deliuer the said obligation of xx l to A. in an action of debt brought by A. against B vpon the said obligation B. shall not auoyd this obligation in respect of this menace because this menace did not tend to the hurt of the person of B. but to preiudice him in his lands or goods for the redresse and recouerie whereof the law would haue giuen B. a sufficient remedie if A. should haue done him the wrong which he menaced And he that will take an aduantage to auoid his déed by menace must in this plea expresse Fitz. Dures 13. how and in what sort the other partie did menace him viz. that he drewe his sword against him and threatened to kill him if he would not seale and deliuer such an obligation release annuitie c. If A. doe menace B. in one countie that he will kill or maihem him 33. H. 6. 24. 2. H. 5. 10. if hee doe not seale him an obligation of xx l or stand to the arbitrement of C. in a cause depending in question betweene them And after B. beeing at libertie in another countie doth seale the same obligation or doth stand to the arbitrement of C. this obligation or arbitrement is void for it shall be intended to bee done by force of the first menace And if A. doe menace B. that he wil kil him imprison maihem or beate him if he doe not make an obligation of xx l to C. 39. H. 6. 36. Co. li. 2. 9. if in this case B. do become bound by obligation to pay vnto C.xx l. in an action of debt brought vpon this obligation by C. against B. the same B. may auoid this Obligation which he made by this menace of A. though the menace was made by one man the Obligation was made to an other for that the menace was the cause of the making of this Obligation which the law doth respect and punish and not only the partie to whom the Obligation was made 11 Assault batterie be for the most part an accomplishment of that which menace did threaten a performance by déedes of that What is assault and batterie which the other forewarned by words that is to say a violent forcible abusing or attempting to abuse by blowes and stripes the person of an other contrary to the peace of the Realme and the law of the same which hath ordeined that no person shall be Iudge or reuenger of his own wrong but leaue that to the censure of the law that is alwaies readie to heare redresse euery mans iust complaints for he that doth attempt to assault or beat an other to satisfie his own turbulent spirit or to reuenge his owne priuat iniurie doth as much as in him lieth to wrest the sword of gouernmēt out of the K. hands to take from the law her equal censure in justice to make himself both Iudge executioner in his own cause because this disordered person contemning the justice of the Law hath assaulted or beaten an other without warrant of law broken thereby the peace of the realm the law hath deuised a quiet peaceable course to reduce him again to order in punishing him by an action of Trespas of assault batterie wherin being conuicted he shal satisfie the party grieued his damages pay to the K. a fine his body shal be committed to prison vntill he hath satisfied it Though the party menaced shall not haue his remedy by action of Trespas vnlesse the same menace was of life member and also that the party menaced receiued some losse or preiudice therby in his liuelyhood or estate for that the menace the hurt which the party doth receiue thereby being ioyned together do make the trespas giue cause of the action of Trespas Yet in an action of Trespas of Assault battery where it is proued found that the offendor did make an assault only as one did strike at an other with a hatchet but did make no batterie or hurt the person of any other it is otherwise for séeing assaulting doth tend to the breach of the peace 22. Ass p. 60 42. Ed. 3. 7. 40. Ed. 3. 40. 6. H. 7. 1. he that maketh an assault doth his indeuor to hurt the law doth giue to him that is assaulted an action of Trespas to recouer his damages to the K. a fine for by the assault the party assaulted is put in feare euill handled hindred of his busines And if he be diuers times assaulted 45. E. 3. 24. he may haue one action of Trespas for all those assaults shall recouer damages according to the number and grieuousnes of them And
lands hath béen made or after the same lands be holden with force he is either himselfe to reseise the same lands and put the partie in possession againe who was so forciblie expelled or kept out of possession or else he is to make his Precept to the Shirife of the same Countie to make restitution to the same partie The forme of which warrant or precept is this viz. Georgius Throckmorton Miles Buck. A warrant to the Shirife to make restitution vnus Iusticiariorum dnÌ„i Regis ad pacem in dicto Comitatu conseruandam assignatorum VicecomÌ„ eiusdem Comitatur salutem Cum per quandam Inquisitionem patriae coram me captum apud East-Claydon in Comitatu pÌ„dicto 2. die Dec. Anno regni dnÌ„i nostri Iacobi quarto suê‘ sacrÌ„m A. B. C. D. E. F. c. ac per formam statuti in hmÌ„odi casu ê“uisi compertuÌ„ fuerit qd ' L. M. de Horwood magna in ComÌ„pÌ„dict ' husb alij malefactores pacis dicti dnÌ„i Regis perturbatores 26. die No. anÌ„ dicti dnÌ„i Regis nunc quarto in quoddam messuagiuÌ„ c. N. T. in East-Claydon pÌ„dicta vi armis ingressi fuerunt ac ipsum N. T. inde expulerunt pÌ„dictuÌ„ mesuagiuÌ„ c. a pÌ„dicto 26. die c. vsque ad dictuÌ„ secunduÌ„ diem Decemb. manu forti cum potentia tenuerunt ê“ut per InquisitioneÌ„pÌ„dictam plenius liquet de recordo Ideo ex parte dicti dnÌ„i Regis tibi mando precipio quod ad hoc debitur requisitus vna cum posse Comitatur tui si necesse fuerit accedas ad mesuagiuÌ„ caetera praemissa ac eadeÌ„ cum ê‘tinentijs reseisiri facias pÌ„fatuÌ„ N. T. ad in plenam possessioneÌ„ suam inde ê“ut ipse ante ingressuÌ„pÌ„dictuÌ„ fuerat restituas mitti facias iuxta formaÌ„ dicti statuti de Ingressibus manu forti factis aediti ê“uisi Et hoc nullatenus omittas sub ê‘iculo incumbentur Teste me pÌ„fato G. Throckmorton Datum apud Fulbrooke c. tertio die Decembris c. 7. Ed. 4. 18. 4. H. 7. 18. 15. H. 7. 5. 10 If a man be indited before the Iustices of peace in the County Restitution awarded out of the K. bench for that he did with force expell and put another out of his possession of certaine lands within the same County and after this indictment is remoued into the kings bench by a Certiorari the Iustices of the same court may award a writ of Restitution to the shirife of the same County to restore possession to the party so expelled though the words of the statute of 8. H. 6. doe giue that authority only to the Iustices of peace of the County where the forcible entry is made and if he be indited before Iustices to heare determine and after the record is remoued into the K. Bench the Iustices of the same court may award restitution for that they who haue supreme authority and do represent the K. person now haue before them the record whereby the party was indited 11 By the words of the foresaid statute of 8. H. 6. it doth appeare No restitutioÌ„ but where the force is found by inguisition that one Iustice of peace alone may remoue the force 21. H. 6. 5. and also enquire thereof so may diuers Iustices But by the aforesaid statute no restitution can be made to the party put out of possession if the said expelling or putting out of possession be not found by inquisition nor but in case where the words of the Indictment vpon the statute of 8. 14. H. 6. 16. H. 6. be adhuc extratenet 12 In the foresaid statute of 8. H. 6. there is a prouiso That they which kéepe their possessions by force in any lands and tenements whereof they or their auncestors or they whose estate they haue in such lands or tenements haue continued their possession by the space of three yeares or more be not endammaged by the force of the said statute And by one other statute made Anno 31. St. 31. El. 11. Eliz. for the explanation and declaration of the meaning and intent of the said prouiso and of the law therein it was ordained declared and enacted That no restitution vpon any indictment of Forcible entry Where no restitutioÌ„ against thrée yeares possession or holding with force shal be made to any person or persons if the person or persons so indited hath had the occupation or hath béene in quiet possession by the space of thrée whole yeares together next before the day of such indictment so found his her or their estate or estates therein not ended nor determined which the party indited shall and may alledge for stay of restitution and restitution to stay vntill that be tried if the other will deny or trauerse the same And if the same allegation be tried against the same person or persons so indited then the same person or persons so indited to pay such costs damages to the other party as shal be assessed by the Iudges or Iustices before whom the same shal be tried the same costs and dammages to be recouered and leuied as is vsuall for costs and dammages contained in iudgements vpon other actions If a man hath béene in quiet and peaceable possession of lands thrée yéeres or more by a good title 4. 5. P. M Dy. 141. and then is expelled and disseised of them and the party offending is therefore indited vpon the statute of 8. H. 6. and the disseisée who was expelled is restored to his possession by a writ of Restitution and is in possession accordingly in this case he cannot iustifie the detainer of the possession of those lands by force of the foresaid prouiso contained in the statute of 8. H. 6. because his possession was interrupted discontinued for that possession must be thrée whole yéeres together without interruption before the said party may by the said prouiso kéepe his possession by force And likewise if he that is a iust and lawfull possessor of lands by the space of twenty yéeres together 3. 4. P. M. Dy. 141. be once clearely wholly remoued from the possession of the same land he cannot come againe with force and a multitude of people to put himselfe in possession therof and detaine the same with force by vertue of the prouiso in the said statute of 8. H. 6. because his possession was interrupted Neither in this case if he be indited of a Forcible entry according to the statute of 8. H. 6. shall he be relieued touching his restitution by the foresaid statute of 31. El. for that he had not the occupation nor had béene in quiet possession by the space of thrée whole yeares together of the same lands next before the day of such indictmeÌ„t found But if a man be seised of a lawfull possession by the space of thrée yéeres of any
by the bringers hereof the bodies of the said C. D. E. F. conuicted of the said forcible holding by my record commanding you and euery of you in his Ma. name that you receiue them safely keepe them in your said Goale vntill they shall haue made their fine and ransome to the King and be deliuered thence by the order of the law Hereof faile you not vpon the perill that will fall thereof Dated at Salden the 30. day of I. in the third yere of the raigne of our soueraign Lord K. Iames c. 16 And though the words of the before rehearsed stat of 8. H. 6. be Vpō cōplaint made to the I. of P. or one of thē c. yet those words do not alwais bind a I. of P. to expect the cōplaint of the party grieued or to omit to do his duty in inquiring of repressing punishing of force because the party grieued by the forcible entry or detaining of possessiō is ignorāt in séeking lawfull redres for his receiued iniury or doth intēd to take his remedy by other means but a I. of P. hauing notice of such forcible entry A Iustice may inquire of forcible entries without complaint or detaining of possession by force though it be by others and not by the party grieued may and of duty ought to goe to the place where the same force is committed to make inquisition thereof 7. E. 4. 18. and if the force be found to make restitution to the party expelled or put out by force And so by his meanes the offendor shall be punished according to his desert the partie wronged shal be restored the king shall be intituled to a fine all which without the said Iustices diligence would be omitted An action of forcible entry 17 If a man that is seised of lands or tenements of an estate in fée simple Fitz. Na. B. 248. fée taile for terme of his owne life or for the terme of anothers life be disseised or expelled thereof by force he may haue an action of Trespas of forcible entry vpon the foresaid statute of 8. H. 6. against him or them that did so disseise or expell him thereof and so he may if he be put out 6. H. 7. 12. or disseised of his lands or tenements peaceably and after the disseisor or he that doth expell him 14. H. 6. 1. doth hold them with force And in like sort he may haue the same action 3. E. 4. 19. 10. E. 4. 11. if any doth enter into his said lands or tenements with force after doth defend and hold them by force then he which is so put out and holden out with force may haue this action though the words of the statute be in the disiunctiue viz. disseised with force or disseised quietly after holden out with force for that the intent of the statute was to punish all such forces whether it were vpon the entry disseisin made or vpon the holding and detaining of the land with force in all which cases he who is so disseised or put out may haue an action of forcible entry vpon the said statute of 8. H. 6. and shall recouer his damages and costs to the treble of that which shal be found by the Enquest that he is endammaged 19. H. 6. 6. 22. H. 6. 57. 9. H. 6. 19. hath spent in his suit The writ of forcible entry must be Vi armis as wel for the occupation as for the first entry And it is to be noted that the writ declaration in an action of forcible entry must be that the def entred vi armis and not illicite or by any other such words for if the writ be otherwise it shall abate seeing a writ of forcible entry is alwaies vi armis 37. H. 6. 23. 38. H. 6. 1. and proces of Outlawry lieth in it and the declaration must expresse the certainty of the lands whereupon the defendant did make his forcible entry and which they be and not suggest that he did enter vpon certaine lands in D. And in this action of Forcible entry 35. H. 6. 6. 49. Ed. 3. 2. Co. lib. 3. 12. and in all actions Quare vi et armis a Capias doth lie and where a Capias doth lie in the proces there after iudgement a Capias ad satisfaciendum doth lie and there the king shall haue a Capias pro fine Who may brīg an actiō of forcible entry 18 None can pursue or maintaine this action of Forcible entry Fit Na. B. 248. but he who hath fréehold at the least in the lands or tenemēts so entred vpon for tenant for terme of yéeres or a copyholder cannot maintaine this action for that the words of the said stat of 8. H. 6. be If any person be put out Sta. 8. H. 6. 9 or disseised of any lāds c. and the words of the writ grounded vpon the said statute be Expulit et disseisiuit and tenant for terme of yéeres or a copyholder cānot be disseised séeing disseisin is alwaies of a fréehold which neither of them haue in that land But if tenant for terme of yéeres or a copiholder be put out by force or put out peaceably after holden out with force of land which either of them doth hold by the said estate then vpon cōplaint made by the party grieued to a I. of peace after inquisition thereof by a Iury the same force found the said Iust may reseise the said lands cause restitution thereof to be made to the party so put out for in this case the same cōplaint may be made to the said I. of P. aswell by him in the reuersiō as by the tenāt for terme of yeres or copiholder séeing he in the reuersiō who is disseised of his fréehold by this forcible entry is may as well be termed the party grieued as the tenant for terme of yéeres or the copyholder for their said particular estates And when the Iustice of peace hath made restitution the particular tenant for terme of yeares or copyholder and also he or they in reuersion shall hold and enioy their said seuerall estates in the same lands 4. 5. P. M. Di. f. 142. in such sort as they did before the said Forcible entry made But if tenant for terme of yeares be expelled out of that land which he so holdeth for the terme of yeeres he in the reuersion cannot bring an action of Forcible entry vpon the statute of 8. H. 6. for the same although it be a disseisin to him for that the expulsion is not done immediatly to him Fit Na Br. 248. 9. H. 6. 19. 19 If a man do enter by force into lands or tenements He that hath title entreth by force wherunto he hath right or title to enter doth put out him who hath the freehold of the same lāds in this case he who is so
put out by force cannot maintaine an action of trespas of forcible entry against him who hath title to enter for that his entry was no disseisin to the other who was not lawfully seised thereof but he may invite him for this forcible entry this indictment being found he shal be restored to his possession againe by a Iust of peace by vertue of the said statute of 8. H. 6. And after that 22. H. 6. 18. he that did first enter forcibly by lawful title may again enter peaceably or bring an assise of Nouel disseisin at his pleasure Fit Na. B. 249. 22. H. 6. 37. 20 If a man do enter into lands or tenements disseise one with force He that hath possessiō sueth a writ of forcible entry and after the disseisée doth réenter againe yet the same disseisee may pursue an actiō of Trespas of forcible entry against the disseisor recouer his treble damages though he be seised of the land at the time of the writ brought And therefore it is not a sufficient plea in a writ of forcible entry for the def to plead that the plaintife was seised of the same land the day of the said writ brought 20. H. 6. 12. 22. H. 6. 23. 21 A man may haue a writ of Forcible entry of a rent as well as of land Forcible entry of a rent or common for one may distraine with force for rent and that doth counteruaile an entry with force And one may haue a writ of Entry of a rent which doth suppose that the def did enter into the rent And in an Assise of rent the disseisin may be found to be done by force 39. Ass p. 4. If there be thrée iointenants of land out of the which there is a rent going vpon a distresse taken one of thē maketh rescous by force he only shal be imprisoned yet the others be disseisors And the like law is of a commō of pasture for a commoner may be force be expelled or kept out of his common And a man may kéepe his beasts in another mans ground by force 27. Ass p. 30 claiming common where he hath no common and that is disseisin by force And in either of the cases aforesaid a Iust of peace vpō complaint to him made may remoue the force but not award restitution because they are to be taken vsed in another mans land 2. H. 7. 16. 17. Ass p. 14 22 If diuers do enter with force to the vse of another Forcible entry to the vse of another who himself doth not enter but after doth agrée to this entry to his vse this agréement doth make him a disseisor or a trespassor but he shall not thereby be punished for the force for there can be no forcible entry without an actuall entry Forcible detaining by words only And yet there may be a forcible detaining of possession by words only without act as if he that hath wrongfully but peaceably entred into another mans house expelled and put out the owner thereof shall say to the same owner if he do come thither againe to enter he will kill him this is a forcible detaining of possession 23 If there be two iointenants or tenants in common of certaine lands one of them doth expell put forth the other out of possession of the said lands by force Iointenants or tenants in common expelling each other by force he that is so expelled 8. Ed. 4. 9. 19. 10. H. 7. 27. Fit Na. Br. 249. 21. E. 4. 10. 18. H. 6. 5. may haue an action of Trespas of forcible entry against his companion that did so expell him vpon the said statute of 8. H. 6. for the words of the writ may be verified Expulit Disseisiuit and therupon he shall haue a writ of Restitution to restore him to his former estate But if one iointenant or tenant in common of lands doe expell the other by force out of the same lands he that is so expelled cannot maintaine a writ of Entry vpon the statute of 5. R. 2. against his companion that so put him foorth and suppose that he did enter into the same lands vbi ingressus non datur per legē for that his entry and possession in that land is lawful through the whole land in respect of his owne moitie or estate and further séeing by that action the plaintife is to recouer but only dammages as in an action of Trespas and not to be restored to his possession which action of Trespasse one iointenant or tenant in common cannot maintaine against another for any Trespas done in the land so holden by them Who may bring a writ of Entry vpon the statute of 5. R. 2. 24 None can maintaine a writ of Entry vpon the said statute of 5. R. 2. 8. E. 4. 9. 19. vbi ingressus non datur per legem but onely tenant in fée simple tenant in fée taile or tenant for terme of life at the least for tenant for terme of yeares a copyholder or a tenant at will cannot pursue and maintaine it seeing they haue but the manurance and occupation of the land 4. H. 7. 1. Neither can the King bring the said Action nor an Assise Eiectione firmae nor action vpon the statute of 8. H. 6. Nor any other action which doth proue him out of possession of the land Turning a watercourse by force 25 If a man do enter into another mans ground Plow Com̄ 467. and turne away by force an ancient watercourse which he hath running to his myll the party grieued may haue a speciall Assise of Nusance vpon the statute of 4. H. 4. against the offendor recouer his double damages yet he was not put out nor disseised of his freehold but a Nusance was done to the dammage thereof The plea of not guilty in forcible entry 26 In a writ of Forcible entry the defendant may plead not guilty Lib. int̄ fol. 330. Fit N. B. 249. 14 H. 6. 16. 22. H. 6. 57. 22. H. 6. 17. 9. H. 6. 19. 21. H. 6. 39. that shal be a good plea. But if the defendant doe plead some matter in barre yet he must in the end of the barre trauerse and deny the entry with force which is alledged against him as to say without that he did enter with force c. And the plaintife must answer to that speciall matter alledged in the barre without answering to the Trauerse of the force and vpon that speciall matter the issue must be ioyned and not vpon the force And if that speciall matter alledged in the barre be found by verdict with the defendant he shal be excused and the force shall not be inquired of But if it be found with the plaintife and against the defendant then the defendant shal be attainted of force and render treble dammages and treble costes without inquirie of the force
or defeated of his land lease annuitie debt accompt action suit or demaund is no lesse perillous and preiudiciall to the party thereby wronged if it be not discouered preuented or auoided then the wresting and euicting from him of the same land lease annuitie debt or demaund And the offendors therein do as iniuriously and with as small colour of iustice wrest from the party grieued his said land lease annuitie debt c. as the robber doth take a purse from the traueller by the way or the burglarer his intended prey from the houskéeper in the night And if those reall dueties or things in action were conuerted into things personall the vndue conueying of them in this vnlawfull manner would deserue to be accounted and punished amongst other felonies as in some sort it is ordained so to be by the statute of anno 5. Eliz. St. 5. El. 14. And because diuers persons did forge false déeds and miniments and did cause them to bée openly pronounced published and read to trouble change or vndoe the lands of other persons and to vndoe and troble the possessions and titles of the kings peope therefore by a statute made anno 1. H. 5. it was ordained St. 1. H. 5. 3. that the partie grieued thereby shall haue his suit in that case and recouer his dammages and the partie conuict shall make fine and ransome at the kings pleasure But forasmuch as the wicked and daungerous practise of making forging and publishing of false and vntrue déeds and writings was much more practised and put in vre in all the parts of this Realme than in times past it had béene to the disherison of diuers persons and the great subuersion of iustice which hath growne chiefely by that the paines and punishments limited for such great offences by the lawes and statutes of this Realme before time were so small and easie that such euill people were not afraid to enterprise the practising and doing of such offences The repeale of former statutes of Forgerie Therefore by a statute made anno 5. St. 5. El. 14. El. it was enacted That all other statutes before that time made and prouided for forger of false déeds charters miniments or writings and all and euerie penaltie appointed for the same should from the first day of Iune then next following be void Forging of a déed whereby anothers fréehold shal be troubled 3 To the intent that condigne or some sharper punishment might bée ordained for such as should bée offenders in that crime of forgerie than in time past had béene by the sayd statute of anno 5. Elizab. it was established St. 5. El. 14 That if any person or persons after the first day of Iune then next following vpon his or their owne head and imagination or by false conspiracie and fraud with others shall wittingly subtilly and falsly forge or make or subtilly cause or wittingly assent to bée forged or made any false déed charter or writing sealed court roll or the will of any person or persons in writing to the intent that the estate of Fréehold or inheritance of any person or persons of in or to any lands tenements or hereditaments fréehold or copihold or the the right title or interest of any person or persons of in or to the same or any of them shall or may bée molested troubled defeated recouered or charged Or shall pronounce Publishing of a forged déed publish or shew forth in euidence any such false and forged déed charter writing court roll or will as true knowing the same to bée false and forged as is aforesaid to the intent aboue remembred and shall bée thereof conuicted either vpon any action or actions of Forger of false deeds to bee founded vpon this statute at the suit of the partie grieued or otherwise according to the order and course of the lawes of this Raalme or vpon Bill or Information to be exhibited into the Court of Starre chamber according to the order and vse of the Court he shall pay vnto the partie grieued his double costs and dammages to bée found or assessed in the Court where such conuiction shall bée and also shall be set vpon the Pillorie in some open market towne or other open place and there to haue both his eares cut off and also his nostrels to be flit and cut and seared so as they may remaine for a perpetuall note or marke of his falshood and shall forfeit to the Queene her heires and successors the whole issues and profits of his lands and tenements during his life and shall suffer and haue perpetuall imprisonment during his life The same dammages and costs to bée recouered at the suit of the partie grieued as is aforesaid to be first paid and bee leuied of the goods and cattels of the offendors and of the issues and profits of the said landes tenements and hereditaments of such partie conuicted or of one or both of them the sayd title of the Queene her heires and successors to the same notwithstanding Stat. 5. El. 14 4 If any person or persons after the said first day of Iune next Forging a déed whereby a lease or annuitie may bée claimed vpon his or their owne imagination or by false conspiracie or fraud had with any other shall wittingly subtilly and falsly forge or make or wittingly subtilly or falsly cause or assent to bee made and forged any false Charter Deed or Writing to the intent that any person or persons shall or may haue or clayme any estate or interest for terme of yeares of in or to any Mannours Lands Tenements or Hereditaments not beeing Copihold or any Annuitie in Fee simple Fee tayle for terme of life liues or yeares Or shall as is aforesayd forge make or cause or assent to bee made or forged any Obligation or Bill obligatorie or any Acquitance Release or other discharge of any Debt Account Action Suit Demaund or other thing personall Or shall pronounce publish or giue in euidence such false or forged Charter-Déed Writing Obligation or Bill obligatorie or any Acquitance Release or discharge as true knowing the same to bee false and forged and shall bee thereof conuict by any of the wayes or meanes aforesayde Then hee shall pay to the partie grieued his double costs and dammages to bee found and assessed in such Court where the sayde conuiction shall bée had and also shall bee set vpon the Pillorie in some open Market Towne or other open place and there haue one of his eares cut off and also shall suffer imprisonment by the space of one whole yere without baile or mainprise Stat. 5. El. 14 5 The partie and parties grieued by reason of any the offences aforesaid Seuerall remedies for the partie grieued shall and may at his and their pleasure haue and sue his action of forger of false déedes vpon this Statute against any of the offendors in the same by originall writ out of the Chauncerie and
false déede or writing as aforesaid after the said first day of Iune Stat. 5. El. 14 11 This Act or any thing therein contained Persons not chargeable by this statute shall not extend to charge any Ordinarie or any their Commissaries Officials Registers or any other their Officers or Ministers with any the offences aforesaid for putting their seale of office to any will to be exhibited vnto them not knowing the same to be false or forged or for writing of the said will or probate of the same Neither shall this Act or any thing therein contained extend or be hurtfull to any Proctor Aduocate or Register of any Ecclesiasticall Court within this realm for the writing setting forth or pleading of any Proxie made according to the Ecclesiasticall lawes or customes heretofore allowed and vsed by the Ecclesiasticall Courts of this Realme for the apparance of any person or persons beeing cited to appeare in any of the said Courts Ecclesiasticall Officiall Nor to any Archdeacon or Officall for putting their authentique seale to the said proxies or proxie Nor yet to any Iudge Ecclesiasticall for admitting of the same but they and euerie of them may hereafter doe in all poynts concerning the same as they and euerie of them might lawfully haue done before the making of this Act. Neither shall this Act extend to any Attourney Attourney Lawyer or Counsellor Counsellor that shall for his client plead shew forth or giue in euidence any false and forged déed charter will court roll or other writing for true being not partie nor priuie to the forging of the same for the pleading shewing forth or giuing in euidence of the same Neither shall this Act extend to any person or persons Exemplification that shall plead or shew forth any deed or writing exemplified vnder the great Seale of England or vnder the great seale of any other authentique Court of this Realme A Iudge A Iustice Nor shall extend to any Iudge or Iustice or other person that shall cause any seale of any Court to bee set to any such déed charter or writing inrolled not knowing the same to bee false and forged Any thing in this Act to the contrarie notwithstanding Forging of a customarie booke 12 If one or more tenants of a Mannor 15. Eliz. Dy. 322. wherein there bee seuerall Copiholders doe make a customarie booke or roll of the same Mannor in parchment or paper and doe insert therein diuers customes whereof some be false and doe set his or their owne seales thereunto and the seales of some other Copiholders of the same Mannour and the same customarie booke or roll is intituled and pretended to be collected renewed set forth and allowed by the Lord and all the Freeholders and Copiholders of the said Mannour where in truth it is set forth and made without the priuitie or consent of the Lord of the same Mannour or of the residue of the Copiholders thereof This is a forgerie and false making of a writing sealed to the intent to benefit themselues and to disinherit the Lord of the Mannor and therefore punishable by the open and shamefull punishment contained in the foresayd Statute of 5. Elizab. The proces to leuie costs and damages of a forger 13 Whereas the sayd Statute of 5. Elizabeth hath ordayned 15. Eliz. Dyer 323. That if any person shall bée conuicted of forging of a false deed vpon a bill or information to bee exhibited into the Court of the Starre chamber according to the order and vse of the Court hee shall pay vnto the partie grieued his double costs and dammages to bee assessed in the same Court Therefore when any man is attainted of Forgerie in the Starre chamber for the recouerie of the double costs and dammages taxed by the Court a writ in English shall bee made and directed to the Sherife of the Countie where the offendor doth dwell reciting the Statute and the conuiction commaunding the Sherife to leuie the said costs and dammages of the goods cattels and profits of the lands and tenements of the offendor and to bring the money into the Starre chamber Which writ shall bee sealed with the great Seale and vnder the Teste of the King And there by the order of the Court the money shall be deliuered to the partie grieued The kings pardon of forgerie 14 If a man be attainted of Forgerie in the Starre Chamber 15. Eliz. Dyer 323. Co. li. 5. 50. or in an action of Forger of false déeds founded vpon the said statute of 5. Eliz. the king may pardon his corporall punishment of setting vpon the pillorie flitting his nostrels and perpetuall imprisonment viz. so much of the penaltie of the sayd statute as is to be inflicted for a terrour or example to his people for that hée onely hath interest therein as hée hath in the issues and profits of the said offendors lands And as he may pardon the second offence of him who béeing once conuicted of forgerie doth eftsoones commit the same againe and thereby doth become a felon And as the plaintifes release discharge or discontinuance by the words of the said statute shall discharge the defendants iudgement or execution touching such costs and dammages as the plaintife should haue had against the defendant So may the kings pardon discharge the same defendant of any penaltie or forfeiture that the same statute doth giue vnto him which be the corporall punishments and the issues and profits of the defendants lands 23. El. Dy. 302. 15 Whereas the said Statute of 5. Elizab. hath ordained Forging of Testament That if any shall forge the will of any person in writing to the intent c. That then hée shall be punished as is aforesaid Yet if one do forge the Testament of another person whereby any lease for yeares shall bée conueyed hée is within the danger and penaltie of the said statute though no mention bee made in the statute of a Testament and he shall be charged onely in respect that hée hath forged a writing sealed But of a will concerning fréehold or inheritance there is speciall mention made in the same statute 12. Eliz. Dyer 288. 16 If a Clerke doe write the will of another man which is deadly sicke and after the Testator is become speechlesse Inserting more in a will than is directed and past memorie doth insert some article or clause in the same will which the Testator did not direct him to doe yet this is no forgerie punishable by the sayd statute of 5. El. nor within the meaning of the makers of the same For the principall déed or writing which was the wil of the Testator was not forged neither was any false déed charter writing or will though the article or clause inserted therein hauing no sufficient warrant was false and therefore not the Testators wil nor part thereof nor to be proued therewith 17 And though the said statute of 5.
Eliz. doth repeale as well the before mentioned statute of 1. H. 5. and all other statutes before that time made and prouided for forging of false deeds Lib. in t fol. 359. and hath ordained a new action of forger of false deeds to be founded vpon that Statute and other new remedies yet seeing both those statutes were made and prouided to one end viz. to auoid and punish the enormities of forgerie of false deeds to the disherison or hurt of others though vpon seuerall penalties Notwithstanding in some cases the like reason and so the same law is to be retained in the said statute of 5. Elizab. which was before in the first mentioned statute of 1. H. 5. As in action of Forger of false deeds 9. H. 6. 26. 20. H. 6. 11. 19. H. 6. 29. 21. H. 7. 15. 37. H. 6. 37. brought vpon the said statute of 1. H. 5. Pleas in bar of forgerie it is a good plea in barre for the defendant to plead not guiltie or that he did not forge that deed or to plead that he gaue to the plaintife a gallon of wine in satisfaction of the said offence which he did accept And so it is a good plea in barre in an action of forger of false deeds brought vpon the statute of 5. Elizab. and the same plea being confessed by the plaintife or found by verdict shall not onely barre the plaintife of the recouerie of his double costs and dammages but shall also discharge the defendant of all corporall punishments to be inflicted and of the forfeiture of the issues and profits of his land to the king For this is not a release or discharge after verdict but a discharge before verdict whereby the whole Action and sute is discharged and so not within the compasse of the said statute of 5. Eliz. 14. touching the plaintifes release or discharge after verdict Where one shall haue an Action of forgery though he hath but a right to the land 18 There be some cases where a man shall haue an Action of forger of false déeds though he hath neither possession reuersion or remainder but onely a title to the land As if a man die seised of certaine land and a stranger doth abate and enter vpon the same land before the entrie of the heire and holdeth out the heire and after the same abator doth forge some charter deed or other writing sealed of the same land to the intent to disturbe trouble or defeate the estate of the heire in the same in this case the heire may haue an Action of forger of false deeds against the same stranger though he hath then no possession reuersion or remainder in the same land And so it is 4. H. 6. 25. 22. H. 6. 15. 15. Ed. 4. 24. if one man doe disseise another man of land and after doth forge false deedes c. of the same land to the intent aforesaid the dissesee may maintaine an Action of forger of false deeds against the disseisor vpon the Statute of 5. Elizab. as he might haue done before vpon the Statute of 1. H. 5. for that his right and title to the same land is molested troubled defeated recouered or charged by the same forged deed And the same law is if a man doe bring a reall Action against an other of certaine land 9. Ed. 4. 37. and before iudgement one claiming a lease for the terme of yeares of the same land praieth to be receiued to saue his terme according to the Statute of Gloucester and doth shew his said lease which lease is forged Stat. 6. Ed. 1 11. In this case the Demandant in the saide Action may haue a writ of forger of false deedes against him that claimeth the said terme though he hath as yet nothing in possession reuersion or remainder in the same land but onelie a right for this lease is forged to â—he intent to defeate him of his right viz. of his present possession 19 If a man hath neither possession reuersion remainder or title of in or to land Where no Title no Action of forgerie and yet will bring against another an Action of forger of false deedes of the same land it is a good plea in barre for the defendant to pleade 21. H. 6. 51. 8. H. 6. 34. that hée himselfe is seised of the same land without that the plaintife hath any thing therein for if the plaintife hath nothing in the freehold or inheritance of the land nor any estate for yeares copihold or annuity in the same then he cannot be the party grieued in that Action neither his right title or interest of in or to the same can be molested troubled or defeated recouered or charged And the same law is if a man hath in land no mediate or immediate estate expectant vpon any lease or leases for life liues or yeares nor profit right of entry but onely a possibilitie 33. H. 6. 22. As if A. doe giue land to B. and the heires of his body lawfully begotten the remainder thereof to C. and his heires for euer If E. doe forge a deede containing that A. gaue same land to the said B. and the heires of his body lawfully begotten the remainder thereof to him the said E. and his heires for euer In this case C. cannot pursue an Action of forger of false deedes against E. during the liues of B. or of any of the heires of his body lawfully begotten for the said forgery séeing that during the said time his right title or interest into that land is not molested troubled defeated recouered No Action in respect of a possibilitie or charged for that he hath therein during that time but onely a possibilitie which possibilitie it may be shall neuer come into Esse And further C. cannot for the said forgery recouer double costs and dammages according to the said Statute of 5. Eli. for that he is not as yet a partie grieued nor damnified nor hath sustained any dammages neither peraduenture euer shall if B. and his heires doe continue from one generation to another and not die without issue of their bodies c. And of a bare possibilitie no value can be made neither single or double dammages assessed 18. H. 6. 5. 9. H. 6. 26. Kel fol. 114 20 If there be two Ioyntenants or tenants in common of land and a stranger doth forge a déede concerning the same land Forging of a déed touching ioyntenants land if one of those Ioyntenants or tenants in common doe bring an Action of forger of false déedes against the offender and the Defendant doe pleade that another hath an estate in Ioyntenancie or in common with the plaintife who is in full life this writ shall abate for séeing this Action is but in the nature of an Action of Trespas wherein the plaintifes are onely to recouer dammages Ioyntenants and tenants in common must ioyne in the same Action for though their right in
the land be seuerall yet their possession touching the profit thereof is ioynt And this Action is founded vpon the possession And whereas both the Statute of 1. H. 5. and 5. Eliz. doe ordaine that the partie and parties grieued shall and may at his and their pleasure haue and sue this Action of forger of false déedes in this case both the Ioyntenants and tenants in common be the parties grieued for that their land is molested troubled recouered or charged by this forged déed Fitzh Forger 5. But if there be two Ioyntenants or tenants in common of certaine land and one of them doth forge a false Release or other Déede whereby the whole land is intended to be conueied to himselfe in this case the other Ioyntenant or c. may haue an Action of forger of false déeds against his said ioyntenant or c. for that forged and false déede was made to the intent that the right or title of the forgers companion in estate should be molested troubled defeated or recouered And in this case he is the partie grieued to whose onely disherison the said forgery doth trench 21. H. 6. 4. 21 In an Action of forger of false déedes One sealeth a déed by an others commandement the Defendant pleaded that the Plaintife being seised of certaine land did couenant with a stranger to enfeoffe him of the same land whereupon the same stranger came to the defendant being a Clerk and requested him to make a déed of feoffment of the same land which he did and after by the plaintifes commaundement he sealed the same déede and after did reade the déede at the time of the liuerie and seisin which is the same forgerie and proclamation and that was adiudged a good Plea for when the defendant sealed the feoffement by the plaintifes commaundement and in his presence it was the plaintifes owne act and déede and his owne sealing and not the defendants for the plaintife did vse the defendants hand but as his instrument therein as men vnlearned doe vse an other mans hand to helpe or direct them to subscribe their names to a Deede 9. H. 6. 26. 7. H. 6. 34. 22 If the father do forge a déede and after dieth One forgeth and another doth publish and then his sonne doth find the same déede and doth pronounce publish or shew forth in euidence the same déede knowing the same to be false and forged to the intent the estate of fréehold or inheritance of any person of in or to any lands c. should be molested troubled defeated or recouered this is forgerie in the sonne and he shall be punished according to the foresaid Stat. of 5. El. And the same law is if one man do forge a déed or c. and an other man knowing thereof shall publish it to any of the intents aforesaid this is forgerie prohibited by the same statute for the same stat of 5. Eliz. is in the disiunctiue viz. if any person shall forge or publish Forgerie by antedating of a deed 23 If a man doe make a feoffement to one person of certaine land 27. H. 6. 3. and doth deliuer possession therof accordingly and after he doth make a feoffement to another person of the same land bearing date before the first feoffement but doth not deliuer it this last feoffement is not the feoffors déed But yet if hée do publish it to be his déed the first feoffée may haue an action of forger of false déeds against him for when he had made the first feoffement of the land hée then had nothing left in him of the same land And therefore when hée made the second antedated déed of that land it was a false and forged déed and then after publishing pronouncing or shewing it forth to be his déed it was with intent to molest trouble defeat recouer or charge the land of the first and lawfull feoffée and so he is punishable according to the foresaid stat of 5. El. as hée was before by the stat of 1. H. 5. 24 Though the foresaid two statutes of 1. H. 5. and 5. Eliz. were ordained to punish those who should forge any false déed or c. to the intent to molest trouble charge or recouer the right or title of any person in his lands tenements or hereditaments or to the intent that any person should claime any lease for yeares or annuitie or should forge any Obligation Bill obligatorie Release Acquitance or other discharge of any debt account action suit demaund or other thing personall yet was there no prouision in either of them to punish those who should get into their hands any money goods cattels iewels or things of any other persons by colour of a false token or forged or counterfeit letter for the redresse whereof by a statute made anno 33. H. 8. St. 33. H. 8. 1 it was enacted That if any person or persons of what estate or degrée soeuer hee or they be Getting of other mens goods by counterfeit tokens or letters shall falsely and deceitfully obtaine or get into his or their hands or possession any money goods cattels iewels or other things of any other person or persons by colour or means of any false tokē or counterfeit letter made in another mans name that then euerie such person persons so offending being thereof lawfully conuict by witnesses taken before the L. Chauncelor of England for the time being or by examination of witnesses or confession taken in the Star chamber before the K. honorable Counsel or before the Iust of Assise in their circuits for the time being or before the Iust of peace within any part of the K. dominions in their generall Sessions or by action in any of the K. courts of record shal haue suffer such correction punishment by imprisonment of his body setting vpō the pillorie or otherwise by any corporal pain except pain of death as shal be vnto him or them limited adiudged or appointed by the person and persons before whom he shal be so conuicted of the said offences or any of them Suspected persons called before the Iustices 25 As wel the Iust of Assise for the time being as also ij St. 33. H. 8. 1 Iust of peace in euerie countie whereof one to be of the Quorū shal haue power authoritie to call and conuent by proces otherwise to the said Assises or generall sessions any person or persons being suspected of any of the aforesaid offences to cōmit him or thē toward or to let him or thē to baile vntil the next Assises or general sessiōs there to be examined and further to be ordered by their discretions as is abouesayd Prouided alwayes that the Iustices of peace within euerie Citie Borough Towne and Franchise within this Realme or other the kings dominions shall haue like iurisdiction power and authoritie at their generall Sessions and otherwise to do and execute all and euerie
verdit or misdemeanors shall happen to be made shall haue full power to compell such Iurors and euery of them vpon paine of imprisonment to be bound by Recognisance in a certaine summe of money by their discretion to be limited that the same Iurors and euery of them shall personally appeare at a certaine day by the same Iusticiar Steward or other officer to be limited before the Lord President and other of the Councell aforesaid for the time being then and there to abide and stand to such direction and order as the same councell shall make ordaine and decree of in and vpon the same And the same councell shall thereupon haue authoritie by examination or otherwise to heare and determine all and euery such cause and shall haue like authoritie to commit euery of the same Iurors to prison or other punishment as shal be thought meet by the discretion of the said counsel or otherwise assesse or taxe euery such Iuror to his fine and ransome by the same discretion to be paied and leuied of their lands goods and cattels to the vse of the King Periurie committed by witnesses 20 Hauing written of the restraint and punishment of periurie in Iurors consisting of twelue persons at the least impannelled or sworn to deliuer their verdict according to their euidēce I am now to expresse what punishments the law doth inflictt vpon such which doe come one by one as deponents or witnesses to testifie the truth and to informe the Iudge or the Iurie of the veritie of the matter in issue or question according to their knowledge whereof euery man by himselfe may be called singularis testis though there be more witnesses sworne in that cause And séeing that iustice cannot be executed without the knowledge of the truth of the cause in question that truth is in most cases only to be deliuered by the othes and testimonies of such parties as were witnesses priuie or best acquainted with the matter in variance Therefore first it is to be obserued that the wisdom of the law hath thought it necessarie to prouide that such witnesses may be compelled vnder a great paine to appear in court and testifie their knowledge concerning such matter in question as by the Statute made Anno 5. A witnes vpon proces serued shall appeare El. it was ordained St. 5. El. 9. St. 29. El. 5. That if any person vpon whom any proces out of any of the courts of Record within this Realme or Wales shal be serued to testifie or depose concerning any matter depending in any of the same courts and hauing tendered to him according to his countenance or calling such reasonable sums of money for his costs and charges as hauing regard to the distance of the places is necessarie to be allowed in the behalfe doe not appeare according to the tenor of the said Proces hauing not a lawfull and reasonable let to the contrarie then the partie making default shall forfeit for euery such offence x. l and shall yéeld such further recompence to the partie grieued as by the discretion of the Iudge of the court out of the which the said proces shall be awarded according to the losse and hindrance that the partie which procured the said proces shall sustaine by reason of the non appearance of the said witnesse the said seuerall summes to be recouered by the partie so grieued against the offendor by A.I.B.P. c. in any of the K. courts of Record wherein no W.E. or P. c. 21 There were seuerall statutes made during the raignes of king H. 6. K. H. 7. and K. H. 8. against Periurie and the procurers and committers of periurie and lastly one was ordained Anno 32. H. 8. St. 32. H. 8. 9 against such as should suborne witnesses to the hindrance of Iustice and the procurement of periurie Sithence the making whereof for that the penaltie therein is small towards the offendors in that behalfe the said offence of subornation and sinister procurement of false witnesses did neuerthelesse greatly increase and by reason of the wilfull Periurie committed by the same suborned witnesses diuers persons did sustaine disherison and great impouerishment as well of their lands and tenements as of their goods and cattels The penaltie for procuring of wilfull periury in witnesses for the redresse and more sharpe punishment whereof St. 5. El. 9. 29. El. 5. by a Statute made Anno 5. El. it was enacted That all and euery person and persons which shall vnlawfully and corruptly procure any witnes or witnesses by Letters Rewards Promises or by any other sinister and vnlawfull labour or meanes whatsoeuer to commit any wilfull and corrupt Periurie in any matter or cause whatsoeuer depending in suit and variance by any Writ Action Bill Complaint or Information in any wise concerning any lands tenements or hereditaments or any goods cattels debts or dammages in any of the courts of the Chauncerie Starre chamber White hall or in any other of the Kings Courts of Record or in any Léet view of Franke pledge or Law day Auncient demesne Court Court Hundred Court Baron or in the Court or Courts of the Stannerie in the countie of Deuon and Cornewall Or shall likewise vnlawfully and corruptly procure or suborne any witnesse or witnesses which shall bée sworne to testifie in perpetuam rei memoriam Then euery such offendor or offendors shall for his hers or their said offence béeing thereof lawfully conuicted or attainted forfeit fourtie pounds to the King and the partie grieued hindered or molested by reason of any of the offences aforesaid that will sue for the same by A. B. P. or I. in any of the Kings Courts of Record wherein no W. E. P. or I. shall bée allowed And if it happen any such offendor or offendors béeing so conuicted or attainted as is aforesaid not to haue any goods or cattels Lands or Tenements to the value of fourtie pounds then euery such person or persons so conuicted or attainted of any of the offences aforesaid shall suffer imprisonment one halfe yeare without Baile or Maineprise and stand vpon the Pillorie one whole houre in some Market Towne neere or next adioyning to the place where the offence was committed in open market there And no person béeing so conuicted or attainted shall bée from thenceforth receiued as a witnesse to bée deposed in any court of Record within any of the Kings dominions of England Wales or the Marches of the same vntill the Iudgement giuen against him or them shall bée reuersed by Attaint or otherwise And vpon euery such reuersall the parties grieued shall recouer his or their dammages against all and euery such person and persons as did procure the said iudgement so reuersed to bee first giuen against them or any of them by action to be sued vpon his or their case according to the course of the common Law St. 5. El. 9. 22 If any person or persons either by the subornation
it is specially to bée respected in that case that he hath but a pretenced right or title at the time of his Lease made for if he hath a good title in the same land at the time of the said Lease then is he not within the danger of the said Statute though neither hée himselfe nor any of his auncestors nor any by whom he doth clayme the same land haue béene in possession thereof nor of the reuersion or remainder thereof nor haue taken the rents or profites thereof by the space of one whole yeare before the said Lease made For if a man doe enter into lands that be holden of him for an alienation in Mortmaine Or if hée doe recouer lands by a reall action hée may sell the same land or make a Lease of the same land within a yeare after the Entry or Recouerie though neyther hée nor his auncestors nor they by whom hee claymeth the same land haue béene in possession thereof nor taken the Rents or Profites thereof by the space of one whole yeare before Br. Maint 38 6. E. 6. And so it is if a man doe morgage his Land for diuers yeares vpon condition of repayment of money at a certaine day or vpon any other condition If after hée doe redéeme his Land hée may sell it or Lease it within one yeare after though he hath not béene in possession thereof nor taken the Rents or Profites thereof by the space of many yeares before For the meaning of the Statute is not to restraine the bargaining buying or selling of good and cleare Rights but of pretended Righs and Titles And this pretenced Right or Title is What is a pretenced title when one man is in possession of Lands or Tenements and another man who is out of possession of them doth clayme them or doth sue for them for hée is not aptly sayd to haue title to land who is in possession of the same And therefore if he that is out of possession of land doth bargaine sell or make any Agréement Couenant or Promise to depart from the same land or to make any assurance thereof after hée shall recouer the said Land hee is within the danger of the said Statute whether he hath a good title to the same land or not And so it is if one who hath a pretenced Right or Title to copyhold Lands doth bargaine and sell it to another Co. lib. 4. 26 he is within the compasse and danger of the foresaid statute of Anno 32. H. 8. For the words of the statute be If any doe bargaine buy or sell c. any right or title in or to any lands or ténements So that those words any right or title doe extend to all manner of rights or titles and consequently to copyhold lands And séeing a great part of the land of the Realme is graunted by copie Therefore the meaning of the makers of the said Statute of Anno 32. H. 8. was to include them for the auoiding of Suits Maintenance and Champertie and not to leaue all copyhold estates to the mischiefes mentioned in the preamble of the sayd Act. Maintenance by giving of Liueries and retaining 12 Giuing of Liueries Badges Signes and Tokens and retayning of vnnecessarie seruants is an euill budde springing out of the foresayd Branch of Maintenance being put in practise by men of great countenance authoritie and estate and it hath béene from age to age accounted a meane to stirre vp quarrels to boulster Suites to procure Periurie and to subuert iustice And therefore the chiefe Gouernours of this Realme haue endeuoured by many Acts of Parliament to represse or snibbe it as by the Statute of Anno 1. R. 2. 7. Hen. 4. it was ordained St. 1. R. 2. 7. 7. H. 4. 14. That if any person shall giue any Chaperons Hats or such like Liueries to any man for maintenance of quarrels or other confederacies he shall forfeit an hundred shillings for euery such Liuerie and he which receiueth such Liuerie shall forfeit fortie shillings And by the statute of 8. H. 6. it was enacted Sta. 8. H. 6. 4 That if any person of his owne authoritie and proper costs doe buy or weare for his clothing any Clothes or Hats called Liueries of the sort or suit of any Lord Ladie Knight Esquire or other person to haue supportation succour or maintenance in any quarrell or in any other matter and being therof lawfully conuict he shall forfeit fortie shillings and be one yeare imprisoned And by the statute of Anno 1. H. 4. it was prouided St. 1. H. 4. 7. That if any which is a Knight or Esquire meniall of the Kings or who is of his retinue to whom his Maiestie shall giue his honourable Liuerie doe weare his said Liuery in the countrey or Countie where he is resiant or dwelling or in any other place of the Realme out of the Kings presence sauing in going or comming from the Kings house and is thereof duly attainted he shall loose his Liuerie and forfeit his fées for euer And by the statute of Anno 8. Ed. 4. it was established Sta. 8. E. 4. 2. Sta. 1. H. 4. 7. That no person by himselfe or any other for him shall giue any Liuerie or Badge or retaine any person other then his meniall Seruant Officer or learned man in the one Law or in the other by any writing oath or promise And if any doe the contrary hee shall forfeit for euery such Liuerie or Badge giuen an hundred shillings And he which doth retaine or take of any other such oath writing or promise or is retained by Indenture shall forfeit an hundred shillings for euery moneth that any person is so retayned with him by Oath Writing Indenture or Promise And euery person which is retained by Writing Indenture Oath or Promise for euery moneth that he is so retained shall forfeit an hundred shillings But this act shal not extend or be preiudiciall to any Gift Graunt or Confirmation made of any Fée Annuity Pention Rent Lands or Tenements by the King or any others to any person or persons for their counsell giuen or to be giuen or for their lawfull seruice done or to be done and for no other vnlawfull cause or vnlawfull intent although the person to whom such gift graunt or confirmation is made be not learned in the one law or the other Neither doth it extend to any libertie giuen at the Kings or Quéenes coronation or at the instalment of any Archbishop or Bishop or erection creation or mariage of any Lord or Lady of estate or at the creation of any Knights of the Bathe or at the commencement of any clerke in an Vniuersitie or at the creation of Serieants of the law or giuen by any Fraternitie Guild or Mysterie corporat or by the Maior Sherife or other chiefe Officer of any Citie Borough Towne or Port of this Realm of England for the time being during that time for the executing
same in a writ of Maintenance brought against him but he cannot retaine or intreat a man learned in the law to be of counsell with the principall partie nor meddle further in that cause than to sée the mainprise performed and himselfe discharged Maintenance in respect of his interest in the land 24 Euerie person that hath any interest in land may meddle and maintain him who is impleaded for the same land and not bee punished therefore in a writ of Maintenance As if tenant for terme of life or in taile of land bée impleaded for the same land or any part thereof Bro. Maint 53. he in the reuersion or remainder thereof may at his owne charges maintaine him in that suit for the safegard of his owne estate for it is in a sort his owne case and the defence of it is to his owne benefit and the euiction to his owne disheritance But this maintenance must be after tenant for terme of life hath atturned vnto him in the reuersion for i◠he maintaine the suit before it is punishable in him 9. H. 6. 64. And so it is if a man being seised of land hath issue a daughter who is maried to another if the father in law be impleaded of that land in a reall action the sonne in law may maintaine him at his owne charges for that by possibilitie that land may after the decease of his father in law descend to his wife and so come to him in her right But if the daughter dye without issue of her bodie begotten by the said husband before the said suit commenced 14. H. 7. 2. 6. E. 4. 5. 19. E. 4. 3. then the sonne in law cannot maintaine the father in law in that suit Neither can hee maintaine him during the life of his wife if an action of Debt couenant account or any other personall action be brought against him for he is neither to take benefit or losse by any of those suits 6. E. 4. 2. 39. H. 6. 20. And if a man seised of land make a lease for certaine yeares of the same and after a suit is commenced betwéene the said lessée for yeares and a stranger touching the same land or any part thereof the lessor may giue euidence for the lessée vpon the triall of the cause in question or otherwise may maintaine him in that suit at his owne charges for it tendeth to his owne priuat benefit or losse And in some case a man may maintaine a suit lawfully though he be neither heire to the land nor in possession reuersion Maintenance in respect of his possibilitie or remainder thereof As if a man being seised of land 9. H. 6. 64. doe make a lease thereof to another for the terme of the life of the lessee and after doth grant to a straunger that if the said tenant for terme of life doe dye during the same lessors life that then the same stranger shall haue and enioy the same land for the terme of xx yeares after the death of the same tenant for life if in this case the tenant for life be impleaded for this land the same stranger may maintaine him for the sauing of his owne estate for yeares and yet he hath no certaintie but a possibilitie of a terme for yeares which peraduenture will neuer chance And likewise in some other case a man may maintaine a suit lawfully though he be neither in possession reuersion remainder or possibilitie of the thing in question Maintenance in respect of his warranty As if a man be seised of a rent going out of another persons land 11. H. 6. 49. to him and to his heires and by his déed doth graunt the same to another and to his heirs with clause of warrantie and the tenant of the land out of the which this rent is issuing doth atturne to the grauntée of this rent if after the grauntée be impleaded of this rent vpon tryall of the issue the grantor may come into the Court and shew to the Iurors such euidence as he hath to prooue the title of this rent and it is lawfull maintenance and not punishable in him though he was neither called into the Court by voucher to warrantie or by Warrantia Chartae And so might he haue done if he had beene called to warrantie by any of the meanes aforesaid vpon a warrantie made of land or rent for it is to preserue himselfe out of daunger and from recompencing in value of that whereof before he had made warrantie 25 As it is in lands and leases so is it in rents goods and debts Maintenance in respect of his rent for euerie person that hath interest in them may meddle and maintaine and defend him who is impleaded or prosecuted by suit or doth implead or prosecute by suit any other for any matter or cause concerning him or whereupon hee doth depend so that the same suit doth tend to impeach preiudice or trouble his estate therein or may redound to his benefit or profit or may be a meane thereof 9. H. 6. 64. As if a man haue a rent charge in fée out of certaine lands and another man hath in custodie a boxe of writings concerning the same rent and after hée that hath the rent doth graunt it to a stranger and his heires to the which graunt the tenant of the land charged doth atturne and moreouer the grantor of that rent charge doth graunt to the assignee of the same that if he can recouer the same boxe of writings that then the same assignee shall haue them If after this graunt the grauntor doth pursue a writ of Detinue against him that hath the custodie of this boxe of writings he to whom the same rēt charge was graunted may lawfully maintaine him in that suit for that by promise he is to haue the same boxe of writings if it be recouered for the preseruation of his estate in the said rent charge 11. H. 6. 47. And a Lord may maintaine his tenant if he be impleaded for his freehold A Lord may maintaine his tenant in respect of his rent and seruices that he is to receiue and haue of him And so it was before the Statute of Vses made anno 27. H. 8. if a man had made a feoffement of land to others to his owne vse the feoffor might maintaine the freehold tenant which held of his feoffees in respect of the vse which he hath in the rent and seruice of that tenant 15. H. 7. 2. 26 And the same law is touching debt As if A. do owe vnto B. xx l. and C. doe owe to A. xx l. due by Obligation Maintenance in respect of debt and A. will deliuer vnto B. the same Obligation in satisfaction of the xx l. which he doth owe him In this case B. may sue an Action of Debt vpon this Obligation against C. in the name of A. and retaine an Attourney and learned counsell and pursue and
30. St. 18. El. 13. an 18. El. it was established That euery such person which shal be Atturney for any other person or persons being demandant or plaintife tenāt or defendāt in any actiō or suit cōmenced in any of the K. courts of record at West plead to an issue in the same shal deliuer or cause to be deliuered his lawfull warrant of Atturney to be entred of record for euery of the said actions or suits wherin he is named an Atturney to the officer or his deputy ordained for the receit or entring therof in the same terme whē the issue is entred of record in the said court or before vpon paine of forf of x. l. for euery default for not deliuery of the said warrāt the one moity to the K. his heirs successors the other to such officer to whō or in whose office the same warrāt shold be deliuered entred or filed to be rec by A. of det B. P. or I. wherin no W. E. P. c. also he shal suffer such imprisonmēt as by the discretiō of the I. of the Court where any such default shall be made shall be thought good Fit N. B. 9 6 If a man make an Atturney in a real action brought against him Deceit by an Atturney after by couin agréed vpon betwéene the demandant and the said Atturney the same Atturney maketh default whereby the tenant doth loose his land then the same tenant who lost his land may haue a writ of Deceit against the Atturney And so it is if a man bring an action of Trespasse against two others Register fo 113. Fit N. B. 96. and the plaintife and an Atturney by couin agréed vpon betwéene them doe cause two straungers not parties to the writ to come into the court and to say that they be the same two defendants named in the writ and that they do constitute the same man to be their Atturney in that suit wherupon the same Atturney as Atturney to the defendants named in the writ do plead to an issue and after suffer the enquest to passe by his default by which meanes the plaintife doth recouer against the defendant in this case they who be indéed defendants and against whom the same action of Trespasse was brought may haue a writ of Deceit against the same Atturney that appeared as Atturney for them and shall recouer their dammages 10. Ed. 4. 9. 20. Eliz. Dyer 367. If an Atturney be informed by his client to plead a false plea which he cannot in conscience plead he may procure this Entrie to bée made Quod non fuit veracitér informatus ideo nihil c. to defend him in a writ of Deceit brought against him by his said client If an Atturney do sue forth a Capias where there was no originall writ before 20. H. 6. 39. he shal be committed to prison and thrust out of his place in that and all other Courts 4 As the law doth punish her Officers who do practise or commit any deceit or fraud in stead of truth in place of iustice The law reiecteth fraudulent acts so doth she renounce and condemne all acts of greatest importance if they be intermixt with guile and falshood For though Iudiciall acts as Fines Recoueries Warranties deedes inrolled c. being of their owne natures iust and lawfull and meanes to settle titles to appease controuersies and to yeeld each person his due bee therefore greatly respected and fauoured in her sight yet if any of them be deuised or executed by couin or to deceiue then she doth vtterly reiect them and adiudge them void Co. li. 3. 77. As a man was Lord of the Mannor of D. wherein there was a tenant which had some parcels of freehold land in fee simple the Lord demised certaine lands parcell of the demesnes of his said Mannor to the said freeholder for xxj yeares reseruing certaine rent and demised some other lands parcell of the said demesnes to the same fréeholder at will reseruing another rent and graunted by copie of Court roll certaine other lands parcell of the same Mannor to the sayd freeholder for the terme of life according to the custome of the sayd Mannour reseruing a third rent And after the same freeholder demised all the sayd lands which hee held by lease for yeares at will and by copie in D. to a straunger for the terme of life and then the same freeholder leuied a fine with proclamations of so many messuages so many acres of land medow pasture c. as he had by lease for yeres at will by copie of Court roll of his owne inheritance in D. by couin fraud to barre the lord of his inheritance All the proclamations were made and the fiue yeres were past the same fréeholder continued in possession of the land which was graunted to him by lease for yeres at will and by copie and paid to the Lord yerely his seuerall rents for the same And after the stranger to whom the fréeholder made the lease for life died and the lease which the Lord made to the fréeholder for xxj yeares expired And then the same freeholder claimed the inheritance of all the land which the Lord demised vnto him for yeares at will by copie intending to barre the Lord thereof by force of the fine with proclamations the fiue yeares past But this fine was adiudged void against the Lord and that it did not barre him to clayme and enter vpon his land for that it was leuied by him who had but estate in those lands for yéeres at will or by copy of court Roll and that neither had nor could pretend any title to the inheritance of the land but only by fraud practised the disheritance of the leassor And whereas the meaning of the makers of the statute of Anno 4. H. 7. St. 4. H. 7. 24 was as it may appeare by the preamble of the same that fines ought to be of the greatest strength to auoid strifes and debates when the lessée for yeares at will or copyholder shall make an assurance by fraud and couin A fine leuied of land to defraud the right owner therof to the intent a fine may be leuied to disherit the right owner of his land this is not a meanes to auoid or appease strife but to begin it where none was before and therefore the same statute did not intend to ratifie such an estate begun by deceit And further the meaning of the makers of the said statute was not That he who could not leuie a fine of this land in respect of the debilitie of his estate therin should be enabled by his owne practise and deceit to leuie a fine therof to barre him who had a lawfull title therein and a right to leuie a fine thereof And the same lessée for yeares tenant at will and copyholder contriued his fraud in so secret manner that by his couert practise he depriued his
lessor of the remedy which the said statute of Anno 4. H. 7. did giue him viz. to make his entry or to pursue his action within fiue yeares which he could not do being ignorant of the lease for life which his tenant had made of this land to a stranger and also conceiuing that the lessée hauing land of his owne fée simple in the same towne he leuied a fine of that land which hee might lawfully doe And the deceit and fraud in this case is the more odious because it was practised by the lessée against his lessor and by the copyholder against his Lord who is by the law bound to do fealty to the lessor and Lord which is a bond of confidence and a linke of trust And if a man seised of land in fée Fit Fines 120. do make a lease to another thereof for terme of life and the lessée for life doth leuie a fine therof to a stranger he in the reuersion may enter into the same land for a forfeiture and put forth the conusée in the fine and auoid the fine for it was leuied by deceit to defraud him of his reuersion If a fine be leuied of lands to secret vses to deceiue the purchasor of the same land it may be auerred to be leuied by fraud and so by the statute of 27. El. 4. auoided St. 27. Eli. 4. And so if a fine be leuied vpon an vsurious contract and that be auerred the same fine shal be void by the stat of 13. Eliz. 8. St. 13. Eli. 8 A fine leuied of ancient demesne lands to defraud the Lord. 5 The law is as prouident to protect mens seigniories rents and seruices from euiction by deceit as she is their lands and tenements knowing that a fine in some cases leuied by couin of the one may be as preiudiciall to his inheritance as of the other hath therefore ordained seuerall remedies to redresse seuerall wrongs as if a man seised of lands in ancient demesne do leuy a fine thereof at the common law to another this is a deceit to the lord of that manor of whom the said lands be holden 21. Ed. 3. 20 Fit Nat. Br. 98. therefore he may haue a writ of Deceit against the cognisor and the tenant of the lord thereby auoid the said fine and then he that leuied the said fine shall be restored to the possession and the title which he had before in the same land and also the same land shall returne and become auncient demesne as it was before for that the said fine shal be vtterly void 21. Ed. 3. 56. And he that is lord of a manor of auncient demesne but for the terme of his life only may maintaine this writ of Deceit And so may he in reuersion if tenant for the terme of life doe not bring it during his life and either of them by his said writ may auoid the same fine for by the leuying of a fine at the common law of lands in ancient demesne 8. E. 4. 6. or by recouerie of them at the common law the same lands do become Franke fée and pleadable at the common law and so the lord should be deceiued of his right and loose his seigniorie in them And the writ of Deceit will auoid the said fine or recouerie because the fine was leuied and the recouerie was suffered coram non iudice in deceit of the Lord viz. not before that Iudge nor in that Court where they ought to haue béene 17. Ed. 3. 31. 7. H. 4. 44. 8. H. 4. 23. Fitz. Na. Br. 98. But if a man seised of lands whereof parcell be auncient demesne and parcell Franke fée doe leuie a fine at the common law of both parcels in this case though the Lord of the auncient demesne doe by his writ of Deceit auoid the fine for so much as is ancient demesne yet the residue of those lands which be Franke fée shall continue in force for a fine leuied of them was no wrong or deceit to any 6 And the same law is where land is recouered by deceit A writ of Deceit to auoid a recouery as if one man do bring a Praecipe quod reddat against another and demaund certaine land by force whereof the tenant ought to be summoned to be before the Iustices at a certaine day and the shirife doth returne the tenant of the land against whom the said Praecipe is brought Fit Nat. Br. 97. summoned whereas in truth he was not summoned by which false returne and deceit of the shirife the demaundant doth vpon the Graund Cape recouer seisin of the land by default of the tenant in this case the tenant to whom this deceit is done 3. E. 3. 28. Fitz. Deceit 49. may after iudgemēt giuen for the demaundant haue a writ of Deceit against him that did recouer and against the shirife for his false return And by this writ of Deceit the tenant shal be restored to his land againe 18. E. 4. 11. so that it be brought during the life of the summoners viewers and pernors or any of them for if it bee not brought vntill all the summoners viewers and pernors be dead it will not lye for after the death of them the tenant shall not haue a writ of Deceit for proces shal be awarded against the summoners viewers and pernors to appeare in Court and by the examination of them it is to be tried whether the tenant was summoned or not 50. Ed. 3. 16. 8. H. 6. 1. Fitz. Deceit 48. Fitz. Deceit 32. 33. 34. 46 for the summons must be made by two summoners at the least and two viewers And if any of them did not their duty then the writ was not executed as it ought to haue béene and therefore the plaintife in the writ of Deceit ought to be restored But the K. shall haue the issues of the land in the meane time And if the demaundant who did recouer by the shirifes false returne do make a feoffement of the land then the writ of Deceit must be brought against the demaundant the feoffée and the shirife and if the demaundant that doth recouer 8. E. 3. 6. 10. Ed. 3. 43. the shirife also be both dead yet the writ of Deceit may be brought against the heire of the demaundant and the tenant of the land if the summoners viewers and pernors be liuing And if a man do lose his land by default in a Praecipe quod reddat Fit Nat. Br. 98. Fitz. Deceit 43. 80. whereby he was not summoned and then dieth his heire may haue a writ of Deceit as well as his auncestor and shall haue restitution and the vouchée The vouchée may haue a writ of Deceit where he doth loose by default if he were not summoned 7 And so it is if a man sue a Scire facias against another Deceit to auoid a recouerie vpon a Scire facias
or yeares of it and then doth assure it to the bargainée this is deceit and a writ of Deceit is maintenable against him for it for though he hath assured the land he hath not assured it clére and discharged according to his bargaine but hath deceiued the purchasor therein 11. E. 4. 6. 18 If a man doe sell a piece of cloth to another Deceit vpon a warranty and warrant it to be fortie elles long and it is not so long the buyer may haue a writ of Deceit against the seller of the same cloth by force of his warranty although the warranty be by word onely 6. Ed. 6. Dyer 76. without writing so that it be at the time of the bargaine made But if the warranty be at another time after the bargaine made then the buyer must haue some writing to testifie this warranty or otherwise hée shall not haue a writ of Deceit against the seller 9. Ed. 4. 13. Fit Nat. Br. 98. 19 If an action of Debt bee brought against two as executors Deceit by confession of an action brought against executors whereas one of them was neuer executor nor administrator and if he which is executor do make default he who was not executor doe appeare confesse the action he that was named executor may haue against the other an action of Deceit for he hath vndertaken to plead a plea to the action of debt which he could not doe and that also to the deceit and hurt of another 26. H. 8. 7. 20 If a man doe marry a wife possessed of goods Couin by aliening of his wiues goods those be the husbands to giue and dispose at his pleasure during the mariage betwéene them But if after they be diuorced the wife shall haue her goods againe vnlesse the husband hath giuen or sold them before the Diuorce for in that case the wife is without remedie And yet if the husband doe alien those goods by couin to the intent to defraud and defeat his wife of them and after they be diuorced then shee may auerre the couin and recouer the goods from the alienée 35. H. 6. 5. Co. lib. 3. 78 83. li. 5. 83. 21 Though buying of goods in an open marketh doth worke an alteration of the property of the same goods Sale of goods in opē market by couin and doth bind the Title as well of all strangers as of the owner if the goods be sold in such a shop or place as is commonly vsed for the selling of goods of the same kind or nature yet if one man do steale purloine or iniuriously take away another mans goods and then by couin betwéene him and a third person doth sell the same goods in an open vsual place of sale 7. H. 7. 12 in an open market or faire to the third person who at the time of buying of the same goods did know that the seller came not lawfully by them or that they were not his goods this is a void sale And in respect of this Couin the first and right owner of these goods may lawfully take and carrie them away notwithstanding the said sale in open market Fraudulent assurances to defeat the discontinuée in tayle 22 If the father being tenant in tayle of certaine lands M. 34. E. 1. Fitz. Garrantie 88 will make a feoffement thereof to another with warrantie and so discontinue the estate taile hauing assets of other lands in fée simple to leaue to discend to his son and heire and then within few dayes before his death will alien the same fée simple land to his sonne and heire and to his heires vpon couin and to the intent that the same fee simple land should not be pleaded to come by discent from the sayd father to his sonne nor adiudged as Assets by discent in his hands yet this couin being found by verdict in a writ of Formedon brought against him by the heire of the land entailed shall giue the discontinuée aduantage to plead that the same heire had assets by discent in fee simple left him by his said father for that the law doth adiudge this alienation made by the father to the sonne a little before his death by couin to defraud the discontinuée of his lawfull plea to be as no alienatiō but that the father dyed seised of the same fée simple land and that it came to his sonne and heire by discent 23 Because Lords of Mannors lands and tenements haue as great right to enioy the wardship of the bodies and lands of their wards Fraudulent conueyance to defeat a Lord of his wardship as they haue to their other inheritances lands and goods and it is as great an iniury to deceiue them thereof by couin and collusion as to defeat and defraud them of their other lawfull titles therefore by a statute made at Marlebridge anno 52. H. 3. it was enacted That if any man do enfeoffe his eldest sonne or heire St. 52. H. 3. 6 being within age of his inheritance that therby the Lord might loose his wardship yet notwithstanding such feoffement the chiefe Lord shall haue his wardship And by the said statute it was further ordained That if any persons meaning to demise their lands for terme of certaine yeares that they might thereby defeat the Lords of the fee of their wardships will faine false feoffements containing that they are satisfied of the whole seruice due vnto them vntill a certaine terme and that such feoffées are bound to pay at the said term a great summe to the value of the same lands or much aboue so that after the said terme the land shall reuert to them or their heires for that no man wil desire to hold the same of so great a price yet by such fraud no chiefe Lord shall loose his wardship And if the chiefe Lords do by iudgement of the Court recouer their wardships yet the feoffees shall haue their action reserued to recouer their terme or fée when the heires shall come to their lawfull age And for the further preuention of couin in auoiding of wardships by one other stat made anno 34. H. 8. it was ordained St. 34. H. 8. 5 That if any person or persons hauing estate of inheritance of or in any Mannors lands tenements or hereditaments holdē of the king by Knights seruice in chief or otherwise of the king by Knights seruice or of any other person or persons by Knights seruice haue giuen at any time since the 20. day of Iuly anno 32. H. 8. anno Dom. 1540 or hereafter shall giue will deuise or assigne by will or other act executed in his life his mannors lands tenements or hereditaments or any of them by fraud or couin to any other person or persons for terme of yeares life or liues with one remainder ouer in fee or with diuers remainders ouer for terme of yeares life or liues with one Remainder ouer in fée simple to
any person or persons or to his or their right heires Or at any time since the said 20. day of Iuly hath conueyed or hereafter shall conuey or make by couin contrarie to the true intent of the Act prouided 34. H. 8. for the making of Wils any estates conditions mesnalties tenures or conueyāces to the intent to defraud or deceiue the King of his Prerogatiue primer seisin liuerie reliefe wardships mariages or rights or any other Lords of their wardships reliefes heriots or other profits which should or ought to accrue growe or come vnto them or any of them by or after the death of his or their tenant by force and according to the Statutes made 32. H. 8. 1. 34. H. 8. 5. and the same estates and other conueyances béeing found by office to be so made by couin fraud or deceit contrary to the true intent of the said Acts Then the king shal haue as wel the wardship of the bodie and custodie of the lands c. as liuery primer seision reliefe and other profits which should or ought to appertaine to him according to the true meaning of the said acts as though no such estates or conueyances by couin had neuer béene had or made vntill the said office be lawfully vndone by trauerse or otherwise And the other Lord and Lords of whom any such lands c. shal be holden by Knights seruice as is aforesaid shall haue their remedy in such cases for his or their wardships of bodies and lands by writ of right of ward and shall distraine and make auowrie or cognisance by themselues or their bailifes for their reliefes heriots and other profits which should haue béene to them due by or after the death of their tenant as if no such estate or conueyance had béene had or made Sauing the right and title of the donees feoffées leasées and deuisées thereof against the said deuisor and his heyres after the interest and title of the King or other Lord therein ended 24 If the father doe make a feoffment of his lands holden by Knights seruice Fitz. Collusion 29. 33. H. 6. 14. Co. li. 1. 122. to his eldest sonne He that is not partie to a fraud shall sustaine no losse then by the foresaid Statute of Marlebridge the Lord of whom the same lands be holden is inpossibilitie to haue the wardship of the said sonne if the father die his said sonne being within age But if the same sonne doe after make a feoffment of the same land to an other bona fide and after the father doth die leauing his sonne within age there this possibilitie is destroyed for that the stranger who had no notice of this fraud hath purchased the land bona fide and therefore shall sustaine no preiudice by it And yet in that case if the sonne had made the Feoffment after the fathers death Co. li. 2. 94. this alienation had not depriued the Lord of his wardship which was once lawfully deuolued vnto him 25 And it is a deceit collusion and defrauding of the lawe and a great disheritance and preiudice to the Lords of the Fee of whome any lands bee holden to giue the same lands in Mortmaine or to doe any Act or procure any thing to be done whereby they may come into Mortmaine contrarie to the statutes of Magna Charta 7. Ed. 2. 13. Ed. 1. 15. R. 2. and 23. H. 8. for the Lordes doe loose the wardships mariages reliefes and other seruices of their Tenants by that meanes And therefore by the Statute of West 2. it was enacted That if any religious or Ecclesiasticall person doe impleade an other St. 13. E. 1. 31. by a Reall action of land and the Tenant will make default after default whereby hee ought to loose the land Then hee which doth recouer shall not haue Execution of the same Land recouered vntill he hath sued forth the kings writ of Quale ius directed to the Escheator of the same countie to make enquirie by a Iurie what right hee that recouered the land hath to the same And if he hath right Deceit and Collusion to bring land into mortmaine iudgement shal be giuen for him he shall haue execution of the same land And if it be found that he hath no right to recouer by his said action but that the lands were lost by collusion betwéen him and the tenant of the land then the land shall accrue to the next Lord of the fee if hée demaund it within a yéere next after the Enquest taken And if he doth not demaund it within a yeare it shall accrue to the next Lord aboue if he demaund it within halfe a yeare after the same And so euery Lord after the next Lord immediat shall haue halfe a yeare to demaund it successiuely vntill it come to the King to whom through the default of other Lords the land shall accrue For this recouerie of land by default by a compact and couin before agreed vpon betwéene the demaundant being a religious or Ecclesiasticall person and the tenant is to defraud the intent and meaning of the Statutes of Magna Charta and an 7. Ed. 1. whereby it was ordained St. 9. H. 3. 37 St. 7. Ed. 1. That if any religious person or other whatsoeuer will buy or sel any lands or tenements or wil receiue the same by colour of any gift or lease or by reason of any other title whatsoeuer or will by other practise or deuise procure the same to himselfe whereby such lands or tenements may come into mortmayne he shall forfeite the same lands And by the equitie of the foresaid Statute of Westminster 2. if any Ecclesiastical person doe recouer land against another by reddition 3. Ed. 4. 14. confession or action tried yet the collusion shal be inquired of for that the same recouerie may be by collusion before had betweene the demaundant and the tenant And because that by feoffments fines recoueries and other assurances made of trust of lands to the vse of parish Churches Lands assured in Mortmaine to churches chappels Guilds c. Chappels Guildes Fraternities c. there groweth to the King and other Lords and subiects of the Realme the like losses inconueniences and is as much preiudiciall to them as doth and is where lands be aliened in mortmaine Therefore for the eschuing and auoydance of them by a Statute made an 23. H. 8. it was enacted St. 23. H. 8. 10. That all feoffments fines recoueries wills and other estates deuised or in any wise made of trust of any mannors lands tenements or hereditaments to the vse of any parish churches chappels churchwardēs Guildes fraternities or brotherhoods erected or made of deuotion or by common assent of the people without any corporation Or that the Feoffees Conisees Recouerées or other persons and their heires thereof seised shall take leuie or perceiue or cause to be taken c. the issues and profites thereof and the same to
dispose or otherwise imploy or suffer or cause to be paid disposed or imploied to any of the foresaid vses or to any of the like vses aboue the terme of 20. yeares next after the first making and beginning of any such vses shal be vtterly voide But for the preuenting of collusion and fraud which might bee deuised for the further establishing or corroboration of such vses by the said Statute of an 23. H. 8. Collaterall conueyaunces to defraud the assurance to Churches it was moreouer prouided That if any person or persons in defraud of the said Statute doth bind or ordaine any of their heirs or successors or any other persons that they shall suffer such vses intents or purposes to continue contrarie to the said statute vpon paine of losse of any other lands or of any other thing or doe deuise by any colour craft or meanes any thing to make such vses declared contrarie to the meaning of the said Act to continue for any longer time then is aboue limitted for the same Then euerie such penaltie craft colour and euery other thing that is made or deuised in defraud of the said act shal be voide for the said Statute shal be interpreted as beneficiallie as may be to the destruction or vtter auoyding of the vses aboue remembred and of all other like other then such as are before expressed Co. lib. 1. 26 Notwithstanding the foresaid Statute of An̄ 23. H. 8. To what vses lands may be giuen it is lawfull for any person at this day to giue his lands tenements or hereditaments to any person or persons to his or their heirs for to find a preacher for the maintenāce of a Schoole for the reliefe of maihemed souldiers for the sustentation of poore people for the reparation of churches highwayes bridges cawseis for the discharge of the poore inhabitants of a towne of cōmon charges for to make a stock for poore labourers in husbandrie poore apprentices for the mariage of poore maids or for such other charitable vses for the said stat was made onely to restraine the assuring of lands to superstitious vses and not to charitable vses And in this case it shal be expedient that the feoffor which doth assure his land to any of the vses aforesaid doe reserue to himselfe some annuall rent or take some money of the feoffées at the first for then the feoffement or assurance shal be good to the feoffées and their heires though the vse be vnlawfull And it appeareth by the stat made an 43. Stat. 43. El. 4. El. that they be accounted good and charitable vses no superstitious vses to giue lands tenements rents annuities profits hereditaments goods chattels money and stocks of money for the reliefe of aged impotent and poore people or for the maintenance of sicke and maihemed souldiers mariners schooles of learning frée schooles schollers in Vniuersities or for repaire of bridges ports hauens cawseys churches sea-bāks high waies or for education or preferment of orphans or for or toward reliefe stocke or maintenance for houses of correction or for mariage of poore maids or for supportation helpe ayd of yong trades-men handicrafts-men and persons decaied or for reliefe or redemption of prisoners or captiues or for aid or ease of any poore inhabitants concerning paiment of fifteens setting out of souldiers and other taxes For the said Stat. of 43. El. doth giue authoritie to the L. Chauncelor the L. Kéeper c. to the Chauncelor of the Duchie to award commissions from time to time into all or any parts of this Realme to certaine persons to enquire of al singular such gifts assignments appointments and of the abuses breaches of the truce negligences misimployments not imploying concealing defrauding misconuerting or misgouernment of any lands tenements rents c. goods chattels money c. heretofore giuen or assigned or which hereafter shal be giuen limited or assigned to or for any the charitable or godly vses before rehearsed And after such enquiry hearing and examining thereof to set downe such orders iudgements and decrées as the same lands tenements rents goods money c. may be duly and faithfully imployed to and for such of the charitable vses and intents aforesaid respectiuely for which they were giuen or appointed by the donors and founders thereof 26 Because when tenants for terme of life tenants in dower or by the curtesie of England or tenants after possibilitie of issue extinct were impleaded they would often be of couin with the demandants that the tenemēts demanded should be recouered against them they would not pray in ayde nor vouch to warrantie them in the reuersiō but plead in chiefe such a plea wherby they knew the tenements should be lost for the preuention and eschewing of which couin St. 13. R. 2. 16. by a stat made an 13. R. 2. it was ordained That if any such tenant be impleaded and he in the reuersion come into the Court and prayeth to be receiued to defend his right at the day that the tenant doth plead to the action or before he shal be receiued to plead in chiefe to the action without taking delay by voucher ayd-prayer nonage or other delay whatsoeuer Couin by a particular tenant to defraud him in the reuersion so that after such receipt he shal haue no delay by protection essoine of the Kings seruice or common Essoine but the sute shal be hastened as much as it may be by the lawe And dayes of grace shal be giuen by discretion of the Iudges betwixt the demaundant and him which is receiued and not the common daies giuen in pleas of land except the demaundant will thereunto assent to the intent the demaundant shal not be too much delaied which must plead with two aduersaries And he in the Reuersion which praieth to be receiued shall finde sureties for the issues of the Land aswel where the receite is counter-pleaded as where it is grauted Stat. West 2. 13. Ed. 1. 3 And by the Statute of Westminster 2 it was established That if by default or yeelding of such tenant in dower or c. iudgement shal be giuen then the heyres or they which haue the reuersion shal recouer after the death of such tenants by a writ of Entrie ad communem legem The wiues receit vpon the husbands default And by the same Statute of Westminster 2. it is also ordained That if in an Action brought against the husband and the wife of lands which bee the right of the wife the husband will absent himselfe and will not defend his wiues right or will against his wiues consent yeeld the land If the wife wil come before iudgement and be ready to answere to the demaundant and to defend her right she shal be thereunto admitted And for the further auoiding of Couin in Recoueries suffred by particular tenants by the Statute of Anno 14. Eliz. it was enacted Stat. 14. El. 8.
of gift of goods to an other in satisfaction of his debt or for any other reasonable cause How a déed of gift may be made without fraude and will eschew therein the suspition and question of fraude or of a fraudulent gift it is expedient for him to make the same déede openly and before his neighbors or some men of credite in those partes where he doth liue and not in any secret place or before witnesses of small credite or vnknowne in that Countrie and further that the goods which shall be aliened by that déede of gift be set downe in particular and praised to the vttermost value by indifferent persons or seene that they be of the same valew and that the partie to whom the gift is made doe presently take them into his owne possession and carry them away for to leaue them in the Donors possession is an vndoubted argument of trust which trust is a principall vaile of fraude and deceit for though betwéene the Donor and the Donée this trust hath a pleasing goodly shew of confidence and faithfull and true dealing yet betwéene the same Donor and his Creditors it is méere fraude and deceit for the Donor maketh his déede of gift of trust hoping the Donée will not deceiue him who by the selfe same déede meaneth to deceiue others But as a déede of gift must be made Bona fide viz. without any trust so must it be made vpon good consideration A déed of gift must bee made vpon valuable consideration viz. vpon valuable consideration For if a man being in debt to diuers persons will make a déede of gift of his goods to his sonne his nephew or neare kinsman in blood and deliuer him possession thereof and the Donée doth take and carrie away the goods and imployeth them to his owne vse In this case the deede is made bona fide for that the Donée hath taken and carried away the goods and it is made vpon good consideration viz. consideration of Nature and blood but it is not made vpon valuable consideration for money paid or wares deliuered according to the intent and meaning of the Prouiso aforesayd And further though héere is no trust expressed by the Donor in the Donée yet the Lawe doth intend that there is a trust implied betwéene the Donor and his sonne nephew or neare kinsman to whome hée hath made this déede of gift and therefore accompteth it voyde against Creditors c. 31 Forasmuch as diuers persons after conueiances obtained and purchases made of lands tenements leases estates and hereditaments for mony or other good considerations may receiue great preiudice by reason of fraudulent and couenous conueiances estates gifts graunts charges and limitations of vses before made of in or out of lands so purchased which said◠gifts graunts c. are or shall be meant by the parties that so make the same to be fraudulent and couenous of purpose and intent to deceiue such as shall purchase the same or else by the secret intent of the parties the same be to their owne proper vse and at their frée disposition coloured neuerthelesse by a fained countenance and shew of words and sentences as though the same were made bona fide for good causes and vpon iust and lawfull considerations For the remedie of which inconueniences and for the auoiding of such fraudulent fained and couenous conueiances gifts graunts charges vses and estates and for the maintenance of iust and vpright dealing in purchasing of lands Fraudulent assurances to deceiue purchasors c. by a Statute made Anno 27. Elizab. it was ordained St. 27. El. 4. St. 39. El. 18 That all and euery conueiance graunt charge lease estate incombrance and limitation of vse or vses of in or out of any lands tenements or other hereditaments whatsoeuer had or made at any time héeretofore sithence the beginning of the Quéenes raigne that now is or héereafter to be had or made for the intent and of purpose to defraud and deceiue such person or persons bodies politike or corporat as haue purchased or shall afterwards purchase in fee simple fée taile for life liues or yeares the same lands tenements and hereditaments or any part or parcell thereof so formerly conueyed granted leased charged incombred or limited in vse or to defraud and deceiue such as haue or shall purchase any rent profit or commoditie in or out of the same or any part thereof shall be déemed and taken only as against that person and persons bodies politike and corporat his and their heires successors executors administrators and assignes and against all and euery other person and persons lawfully hauing and claiming by from or vnder them or any of them which haue purchased or shal hereafter so purchase for mony or other good consideration the same lands tenements or hereditaments or any part or parcell thereof or any rent profit or commoditie in or out of the same to be vtterly voide frustrate and of none effect Any pretence colour fained consideration or expressing of any vse or vses to the contrary notwithstanding Parties to fraudulent conueiances which doe auow the same All euery the parties to such fained couenous fraudulent gifts grants St. 27. Eli. 4◠leases charges or conueiances before expressed or being priuie knowing of the same or any of thē which shal wittingly put in vre auow maintain iustifie or defend the same or any of thē as true simple done had or made bona fide or vpon good consideration to the disturbance or hinderance of the said purchaser or purchasers leasees or grauntées or of or to the disturbance or hinderance of their heires successors executors administrators or assignes or such as haue or lawfully claime any thing by from or vnder them or any of them shall incurre the penaltie and forfeiture of one yeares valew of the said lands tenements and hereditaments so purchased or charged The one moitie whereof to be to the Queene her heires and successors and the other moitie to the partie or parties grieued by such fained and fraudulent gift graunt lease conueiance incombrance or limitation of vse to be recouered in any of the Q. Courts of Record by action of debt B. P. or I. wherein no E. P. or W. c. And also being thereof lawfully conuicted shall suffer imprisonment for one halfe yeare without baile or mainprise St. 27. El. 4. This Act or any thing therein contained shall not extend or be construed to impeach defeate make voide or frustrate any conueiance Conueiances made vpon good consideration and Bona fide assignement of lease assurance grant charge lease estate interest or limitation of vse or vses of in to or out of any lands tenements or hereditaments heretofore at any time had or made or hereafter to be had or made vpon or for good consideration and Bona fide to any person or persons bodies politike or corporate any thing before mentioned to the
orphans within the City of London or any other City Borough or Towne where Orphans Orphans are commonly vsed to be prouided for either by grant or by custome But the Lord Maior of the city of London and the Aldermen of the same and euery other head Officer of any other Citie c. where such Orphans be prouided for shall and may haue take like rule order kéeping and charge of such Orphans and of all their lands tenements goods cattels as heretofore they vsed or lawfully might haue had vsed if this act had not bin made There was grandmother a widdow mother a widdow ij daughters Co li. 3. 37. the grandmother being seised of certain land in sée holden in socage did by her last wil in writing bequeath the same to the said ij daughters to the heirs of their ij bodies begotten by euen portions equally to be diuided the remainder to the mother being her sole daughter and heire apparant her heires and after the mother maried a second husband and then the grandmother dyed after whose death both the said daughters entred into the said lands so deuised vnto them and then the yonger daughter being betwéene the age of xiiij and xvj yeares and liuing in house with her father in law and mother of her owne will and forwardnesse and with the consent and agréement of her father in law departed foorth of his house in a morning and the same day in another place maried a husband In this case it was adiudged that the said yonger daughter had forfeited her moitie or halfe part of the said lands so deuised vnto her The daughters forfeiture for mariage without her mothers consent by her contracting of Matrimonie and that her said mother should take the benefit of the said forfeiture for the mother had the custodie and gouernement of the said daughter at the time of the said contract by the special words and prouision of the said statute which gouernment was annexed to the person of the mother Iure naturae and was not transferred to her second husband by her mariage as her lands and goods were and so her husbands consent was not materiall nor that consent which the meaning of the makers of that statute did respect and prouide for And though the daughter was forth of her mothers house at the time of the contract of mariage yet in the iudgement of law the mother had then the custodie of her which was inseperable from her person And seeing the foresaid stat of 4. St. 4. 5. P. M. 8. 5. P. M. doth giue the forf to the next of the kin to whom the inheritance should discend or come after her decease during the life of such person that so shall contract matrimonie therfore the partie must be of the blood next of the blood to whom the inheritance vpō such forf shal discend or come which is the mother not the eldest sister for administration may be grāted of the goods of the son or of the daughter dying intestat to the father or mother as to the next of the blood of the party deceased according to the stat of an 21. H. 8. 5. And further though the elder sister be of kin to the yonger yet in this case if the yonger haue any issue her land should discend to her issue and if she haue no issue it should remaine to her mother for that the elder and yonger sisters were tenants in common in taile though they neuer made partitiō indeed the remainder therof to their mother in sée by force of the said deuise of their grandmother who by her will meant and ordained that the land should bee diuided and that one of them should not enioy the whole as suruiuor to the other 41 Hauing written of deceits and frauds practised or performed by some particular persons to others as by the tenant to his Lord Seuerall deceits prohibited by seuerall Statutes the debtor to the creditor the seller to the purchaser the lessor to the lessée c. I am now to expresse and discouer some other guiles frauds and falshoods which the offendors therin do endeuor to put in vse or practise not onely against any one two or more speciall persons as in the cases aforesaid but against euery person that shall put them in trust or otherwise shall haue occasion to vse them or theirs which our stat lawes haue accused and condemned to be offences and haue inflicted vpon the transgressors thereof seuerall punishments As by the stat of Anno 9. St. 9. H. 5. 8. H. 5. falsifiers and counterfeiters of deceitfull and vntrue weights Counterfeiting of weights deceitfull being attainted thereof shal be taken by Iust of peace Sherifes Eschetors other cōmissioners kept in prison without mainprise vntil they haue made fine and ransome according to the Iust discretion St. 23. H. 8. 4 By the stat of An. 23. H. 8. If any diminish a barrell a kilderkin or firkin to the deceit or hurt of another Deceit by diminishing of a vessell by taking out the head or any staffe he shal forf iij. iiij d. and be punished by the discretion of the chiefe officer Deceitfull things vpon fustian before whom the offence shall be presented and the vessell shall be burned By the stat of An. 11. H. 7. Sat. 11. H. 7. 27. If any denizen or forreiner shall vse yrons or other deceitfull thing vpon fustians vnshorne to breake off the nap and cotton of the same but onely the broad shéeres he shall forfeit for euerie offence twentie shillings to the king and him that will sue By the statute of Anno 18. Deceit in goldsmithes work◠El. If any Goldsmith doe make any Goldsmithes worke Sta. 18. El. 14 or plate which shall be touched marked or allowed for good by the Wardens or Masters of that Mysterie and that in the same there shall be found any falshood or deceit then the sayd Wardens and Corporation shall forfeit the value of the thing exchanged or sold to the king and the partie grieued By the Statute of Anno 1. Deceitfull vsing of linnen cloth Eliz. If any do cast or cause to be cast St. 1. El. 12. any péece of linnen cloth ouer a péece of timber and doth by any deuice racke draw and stretch the same of length and bredth and then doth beat it and cast deceitfull liquors mingled with chalke or other things vpon it or doth vse any other deceitfull thing wherby it shal be the worse for the vse thereof then he shal forf the same to the K. and him that will sue for it be one moneth imprisoned at the least and pay such fine as shall be assessed by the Iustices before whom he is condemned By the Statute of Anno 19. Deceits in weights or beames for pewter or brasse H. 7. St. 19. H. 7. 6 4. H. 8. 7. If any
lesse without award of the Kings Court he shall make fine according to the quantitie of the trespas and neuerthelesse sufficient amends shal be to them which haue receiued losse by such distresse Distraining out of his fee. Or if one do distrain another to come to his Court which is not of his fée or vpon whom hee hath no iurisdiction by reason of his Hundred or Bailiwike or doe take a distresse without his fée or the place where he hath iurisdiction or bailiwike hee shall make fine according to the quantitie of his offence Excessiue distresse Or if one do take any vnreasonable excessiue distresses which is grieuous and more than the quantitie of the debt or damages this is an oppression an he shall be amerced 41. Ed. 3. 26 29. Ed. 3. 23. As a man auowed the distraining of 200. shéepe and 16. beasts for ij pence rent and he was amerced therefore for all that he tooke aboue vj. shéepe were adiudged an oppression and so vnlawful But if a man distraine for homage 28. Ass p. 50 42. Ed. 3. 26. Co. li. 4. 8. Fitz. Na. Br. 178. 27. Ass p. 51 28. Ass p. 50 the distresse cannot be too excessiue how many beasts soeuer he doth take for that homage is not valuable though for rent fealtie and other seruices it may be excessiue And in like sort Oppression by often distresse if the Lord of a Mannor or any other who hath rent issuing forth of certaine land do distraine the tenant of the same land diuers times for rent or seruices where none is behind vnpaid this is an oppression of the same tenant who is distrained for in this case the partie who claimeth this rent cannot distraine for rent séeing none was due to him but his distresse is onely taken to vexe the tenant of the land and so to oppresse him And therefore the sayd tenant may haue an Assise of Souent foits distresse against the same Lord and recouer dammages of him according to the losse he hath receiued by the same distresses viz. for not plowing or for not manuring his land Lib. in t 82. Co. li. 4. 8. or for taking no profit thereby But it is otherwise if the same seuerall distresses were taken for homage Seueral distresses for one thing And so it is if a man do distraine for rent or seruices or for any other thing Fit Nat. Br. 71. and depending a suit betwéene the parties for the same rent seruice or other thing he who did distrain doth distrain again for the same rent seruice or thing for the which he did distrain before the beasts or goods of him whose hée did first distraine this is an oppression of him whose goods be twice distrained For the redresse whereof hée may haue a writ of Recaption A writ of Recaption against him who so did distraine his goods twice for one cause whereby hée shall recouer dammages for his second distresse And also hée that did take the same distresse shall make fine to the King for his oppression and wrong though the first distresse were lawfully taken yea and though the rent or seruice for the which he did distraine were behind vnpayed or vndone séeing by the first distresse the cause being prooued true and lawfull hée might haue had returne of the goods or cattell which hee did distraine vntill hée had béene satisfied of the rent seruice or thing for the which hée did distraine But a man may distraine the cattell of him who bée eating of his corne or grasse Distresses for damages for t or doing any other hurt in his ground 47. Ed. 3. 7 so often as he shall find them doing hurt therein and it is no oppression or wrong so to do for he doth not distraine twice for one cause as in the former case but distraineth seuerall times for seuerall new offences 4 And euerie Trespasse which the law doth interpret to bee iniuriously committed vi armis may also fitly be termed an oppression for it is done vpon the offendors owne wrong without warrant of law St. 5. R. 2. â— As if one person doe enter vpon anothers land expell him out of the possession therof whereas his entry is not giuen by the law or doth enter with strong hand or multitude of people Fitz. Tresp 13. 45. 234 20. H. 6. 22. 9. Ed. 4. 28. 9. H. 6. 64. 21. H. 6. 5. 21. Ed. 4. 18. 9. Ed. 4. 29. 10. Ed. 4. 4. 21. Ed. 4. 4. 1. H. 7. 10. 37. H. 6. 36. 21. H. 7. 1â— 11. H. 4. 64. 20. H. 6. 14. 3. H. 6. 12. 10. H. 6. 16. 43. Ed 3. 13. 4. Ed. 3. 48 47. Ed. 3. 22 43. Ed. 3. 35 1. H. 5. 1. and not in peaceable manner this is an oppression And so it is Oppression by Trespasses if one person doe pull downe breake or impaire anothers house or any part thereof Or if one person doe fell cut downe or carrie away the Timber Trées or Wood of another Or if one person doe fell cut tread downe or carrie away the corne or grasse of another Or if one person doe with his cattell depasture feed or eat the corne grasse or hay of another Or if one person doe take and carrie away the money plate iewels houshold-stuffe cattell corne hay or any kind of goods of anothers Or if one person doe plough till eyre or digge the ground or soyle of another Or if one person doe mayme imprison wound or beat another or doth mayme wound or beat the seruant of another whereby he looseth his seruice Or if one person doe hunt chase or hawke in the frée Warren of another or doe take kill or destroy his game there Or if one person doe fish in the Pond Poole Mildam Stew or other seuerall fishing of another Or if one person doe breake the doue-house of another or destroy the flight of the doues of another Or if one person doe digge the Myne of Tinne Lead Stone Coale Grauell Sand Matle Chalke c. of another Or if one person doe pull vp take away the meerestones which by consent haue béen set betwéen his own ground and anothers In all and euerie of which cases the partie grieued may pursue an Action of Trespasse against the offendor and declare that hée committed any of the said offences vi armâ—s wherein if the defendant be attainted hée shall pay to the plaintife his dammages sustained and to the King a fine for that he hath done an oppression to one of his subiects and made an offence to the law Fit Nat. Br. 183. 4. Ass p. 3. 5 Euerie Nusance which one person doth to the land of another Oppression by Nusances wherein the owner hath an estate for the terme of life in tayle or in fée simple may also bée accounted an oppression for those Nusances be put in practise by the offendors onely will and by his owne open playne and manifest
wrong to the disheritance of another or to the preiudice of his Fréehold without any warrant of law 18. Ed. 3. 22. 21. Ed. 3. 2 Co. li. 5. 101. Li. Int. 406. or colour of iustice As if one person doe build or leuie a house a wall a shead a leantor a chimney a gutter or other structarie in his owne ground to the offence of anothers fréehold or to the drowning or rotting of his house or to the stopping of his light or way thereunto this is an oppression 46. Ed. 3. 23. 7. Ed. 3. 56. And if one person doe leuie rayse abate or pull downe a Damme Poole Pond or Ditch to the hurt of anothers Fréehold that is an oppression 27. Ed. 3. 88. 12. H. 4. 3. 8. Ed. 4. 5. 48. Ed. 3. 27 8. Eliz. Dyer 2 50. 14. Eliz. Dyer 319. And if one person doe stoppe straiten or turne an auncient water-course to the hurt of anothers Freehold or in such sort as it doth drowne the ground or soyle of another that is an oppression And if one person do stoppe streiten or greatly impaire anothers highway which hée hath belonging to his Fréehold that is an oppression If one person doe conuey water to his house or ground by a pipe of lead timber or vault of stone and another person will make another pype out of that pype to take away part of the same water that is an oppression of him that made the first pype And if one doe erect a lime-kill néere vnto anothers dwelling house 4. Ed. 3. 36 5. Ed. 3. 43. 4. Ass p. 3. the smoake and heat whereof when it is set on fire doth annoy the inhabitant of the said house and his familie or doth scorch or dry vp the fruit trées in his orchard that is an oppression And if one person hath the fréehold of a seueral fishing in a riuer pond poole moat mill damme or other water Lib. in t 406. and another person wil build a dye-house adioyning or neere vnto it and then will powre out or cause to run from thence corrupt ashes dung slime filth or other annoyances into the said seuerall fishing place to the distruction of the fish there whereby the owner doth loose the benefit of his seuerall fishing that is an oppression of him And if one person will erect or settle vp a Faire or Market Fit Nat. Br. 184. Register 197. 199. Li. Int. 407. to the preiudice or hinderance of anothers Faire or Market that is an oppression of him who had the first Faire or Market And if one person do lay timber faggots stones lime sand grauell dung or any other thing vpon or against the house of another which do rot putrifie corrupt or impaire the walls timber or other part of the same house or any corrupt noisome or stinking thing the sauor or smell whereof is offensiue to the inhabitant of the same house and his familie that is an oppression of the same inhabitant The remedies for oppression by Nusances In which foresaid cases the parties grieued by the said Nusances and oppressions may in some cases haue their remedies by Assise of Nusance brought in the Common Pleas in some other cases by writs of Nusance called Vicountiels tryed in the Countie before the Sherife in some other cases by the writ of Quod permittat in some other cases by action vpon the case and in most of the sayd cases the sayd parties grieued by the sayd Nusances may take away pull downe Co. li. 5. 101. and remooue the same Nusances as their seuerall estates will enable them or their seuerall cases doe require Oppression by Rescous 6 Euerie Rescous that is vnlawfully made of cattel or other goods distrained is an oppression for the offendor doth a wrong of his owne authoritie to the preiudice of another in contempt of the iustice of the Realme without any warrant or colour of law Séeing when the partie grieued by himselfe 44. Ed. 3. 20 40. Ed. 3. 32. 17. Ed. 3. 43. 18. Ed. 3. 30 2. H. 4. 15. or some other doth distraine within his fée for his rent or seruices behind for dammages which hée hath sustained for amerciaments a rent charge or for some other cause which hée taketh to bée lawfull the cattell or other goods of him who he doth conceiue detaineth his due rent or seruice from him or whose cattell haue eaten or spoyled his corne or grasse or otherwise haue trespassed in his ground and doth in quiet and peaceable manner driue them towards the pownd there to remaine as a pledge sub custodia legis vntill the law hath decided whether there was iust cause of distresse or not the owner of the same cattell or some other in his behalfe will by force and strong hand make Rescous of this cattell and take them from him who distrayned them and so will not submit himselfe to the censure of the law nor tarrie vntill it be discussed by the ordinarie course of iustice whether the party that distrained had lawfull cause so to doe or not but will be his owne iudge and take the authoritie of reuenge to himselfe which is an oppression of him whose rent or seruices were due and vnpayd or whose corne or grasse was eaten c. and who was also forcibly depriued of the ordinarie remedie which the law did assigne him for the recouerie of his owne duetie And moreouer it is a contempt of the law which the same offendor doth refuse to be iudged by 7. H. 6. 1. 22. H. 6. 54. Fitz. Na. Br. 101. and therefore in this case the partie grieued may pursue against the offendor a writ of Rescous for this Rescous made and oppression done vnto him and thereby recouer his dammages and also the King shall haue a fine of him for this contempt of his law and his peace broken Li. Int. 527. and the offendor shall be imprisoned vntill hée hath paid the same 7 Euery Encrochment which one person doth make vpon anothers land Oppression by incrochments ground couered with water rent or seruice is also an Oppression for they be done and put in practise by the offendors own open plaine manifest wrong without any warrant or colour of the law As it is an oppression for one person by ploughing earing ditching hedging remoouing of Méerestones or land markes 22. Ass p. 93 to get away the ground or soyle of another and so it is for one person to draw away or alter an auncient Riuer Brooke or Streame of another persons out of the old and wonted course and so it is if there be lord and tenant and the tenant doth hold his land of his lord by fealty fiue shillings of yearely rent and of late yeares the lord hath had seisin of more rent of the tenant by the tenants owne payment without cohertion of Distresse if in this case the lord will distraine his tenants Cattell for that surplusage of rent that
their owne vse and in the said Lands and Tenements did commit wast and destruction to the disheritance of them in the reuersion For the restraint and punishment of which said offence being both an oppression and also a fraud and deceit St. 11. H. 6. 5 Fit N.B. 59 by a Statute made Anno 11. H. 6. it was ordayned That they in the reuersion in such case may haue and maintaine a writ of Wast against the said Tenants for terme of life anothers life A termor alieneth his estate occupieth the land coÌ„mitteth wast or for yeares and so recouer against them the place wasted and their treble dammages for the wast so by them done as they ought to haue done for the wast done by them before the said Graunt and Lease of their estate Prouided That this Ordinance shall not hold place but where the first Tenants before the Graunt and Lease of their estates in the manner and forme abouesaid were punishable of wast and also where after the said Graunt and Lease the said first Tenants of the said Landes and Tenements do take the profits at the time of the wast done to their owne proper vse And though the wordes of the said Statute doe giue an action of Wast in the case aforesaid but onely to him in the reuersion Co. li. 5. 77. yet he in the remainder also being in the like mischiefe shall or may take the benefit thereof and maintaine an action of Wast in this case against his particular Tenant for life or yeares if eyther of them doe commit wast to his disheritance And whatsoeuer the intent of the Grauntor is in the case aforesaid yet if the Grauntée doe assigne his Lease take the profits thereof and commit Wast he is punishable according to the sayd Statute for his intent shall not be issuable nam exitus acta probat viz. the taking of the profites doe sufficiently expresse his intent and euery assignée of the first Tenant mediat or immediat is within the compasse of this Statute for the Statute was made to suppresse Fraud Wast and Oppression And so was the Statute of Westminster the second béeing made and prouided to restraine Wast and Oppression committed by one Tenant in common to the preiudice and disheritance of another by which it was ordayned St. 13. E. 1. 22 That whereas two or more doe hold Wood Wast coÌ„mitted by a tenant in common Turbarie Fishing or such like things in common wherein none knoweth his owne seuerall and one of them doth commit Wast against the will of the other an action of Wast may lye and when it is come vnto iudgement the defendant shall chuse eyther to take his part in a place certaine by the assignement of the Shirife and by the view and oath of his neighbours sworne and tryed for the same intent or els he shall grant to take nothing from thenceforth in the same Wood 3. E. 1. Wast 25. 50. Ed. 3. 3. Turbarie and such other but as his parteners will take And if he doe chuse to take his part in a place certaine the place wasted shall be assigned for his part according as it was before he committed the Wast And because the before rehearsed statute of Marlebridge doth expresse in generall termes in what thinges Wast may be committed as in Houses Woods and Men and the words of the writ of Wast in the Register be Quare fecit vastum venditionem seu destructionem de terris domibus Boscis Gardinis and the foresaid Statutes of Anno 6. Edw. 1. 13. Edw. 1. and 11. H. 6. doe declare who are forbidden to doe that Wast and séeing Wast in Lands Houses Woods or c. is a great wrong and oppression to him or them in reuersion or remainder of the same therefore I will somewhat particularly explaine which the Law doth construe and expound to be Wasts prohibited and punishable by the foresaid Statutes or either of them to the intent that both he that hath the inheritance and also the particular Tenant may know what is due to either of them in respect of their seuerall estates and what to take and what to leaue And to begin with the words of the Writ touching Wast in Land Wast in land If one person doe demise or conuey to another for the terme of yeares life or c. Land 22. H. 6. 18 2. H. 7. 14 17. E. 3. 7. 9. Ed. 4. 35. Co. li. 5. 11. Fit Nat. Br. 149. Lib. in t 6â—6 where there is included in the bowels of the earth Tynne Yron Lead Coale Stone Grauell Morter Sand Chalke or Marle if the Myne or Pit thereof be not open when the Lessées estate or terme doth begin the said Tenant may not open the ground make a new Myne and take the same Coale Stone Grauell or c. for if he doe it is Wast of the land and he in the reuersion or remainder may punish him therefore by an action of Wast For whereas there was assured to the Tenant but Vesturam terrae and the annuall profit of the Land hée hath digged and carried away the Land it selfe and impaired the inheritance thereof for euer But if there bée a Myne or Pit open in any part of the ground so demised or assured at the time of the Lease or assurance thereof or at the time when the estate of the Tenant did begin then the Tenant may digge there and take and carry away so much of the Coale Stone Grauell as shall be necessarily vsed or imployed for or towards the repaire or maintenance of the House Land or other commodities therewith demised and it is no Wast But if he do giue sell 41. E. 3. Wast 82. or otherwise dispose the same to any other person place or vse sauing as is aforesaid then for so much as he shall so mis-imploy it is Wast If one person doe lease or assure his Land to another and all the Mynes or Pits therein for yeares life Co. li. 5. 11. or c. the Lessée may open and digge the ground for Coale Morter Stone c. and take and carry away the same though there was not any Myne open at the time of the Lease or estate made For by the assurance it doth appeare that the Lessor was contented that wast should be made in any part of the ground leased by myning or digging and in this case the Lessée may sell or otherwise dispose the same Coale Stone Marle or c. at his pleasure 17. Ed. 3. 7 for it is as much as if the Lease or assurance had béene made to the Tenant without impeachment of any manner of Wast to be committed by Mynes Pits or diggings If the Tenant for yeares life or c. doe eyre plough vp and conuert into Tillage or Wood ground an auncient and vsuall mâ—wen Meddow it is Wast and so it is 15. H. 3. Wast 131. 46. Ed. 3. Wast 91. if he doe drowne or
then doe sue execution of the said Statute against the same Conusor 47. E. 3. 3. 45. E. 3. 17. 3. H. 4. 12. 31. E. 3. or any feoffée of any part of his land this is a great iniurie and oppression and therefore in this case the said Conusor or his feoffée is to bée relieued by an Audita querela If a statute be made acknowledged by one person to another and then committed in ouell maine to a straunger to bée deliuered to the Conusée vpon certaine conditions performed 12. H. 4. 13. 43. E. 3. 17. and after the same stranger doe deliuer the said Statute to the Conusée before the conditions performed whereupon he doth sue execution thereof against the Conusor this is a great wrong and oppression of the Conusor and therefore hée may haue an Audita querela vpon this matter in fact stay the the exeeution and thereby redresse this iniury If one person be bound to another by Statute or Recognisance for the paiment of a summe of money 45. E. 3. 17. 47. E. 3. 3. 9. H. 4. 5. 13. H. 7. 22. 16. El. Dyer 332. and after the Conusor doth make seuerall feoffements of seuerall parcels of his land to diuers persons and then the Statute or Recognisance is forfeited and the Conusée doth sue execution thereof against one of those feoffees onely this is a wrong and oppression of him for that al the land of the conusor which he had at the time of the said stat or recognisance acknowledged or at any time after ought to be charged and extended for the paiment of this debt to the intent the money might be the sooner paid and the execution more spéedily discharged And therefore the same feoffée whose land is so extended may haue an Audita querela or a Scire facias as the case requireth to defeat the execution against him Co. li. 3. 14. 23. Ed. 3. Execution 127. and thereby hee shal be restored to all the meane profits and to compell the conusée to sue execution of all the land which was the conusors at the time of the said Statute or Recognisance acknowledged or at any time after and so the land of euery terre-tenant shall bee equally charged and each person contributorie to the same extent in respect of his land If the conusor after a Statute or Recognisance acknowledged doe make many feoffements of seuerall parcels of his land to diuers persons and then all or any of those feoffées lands bee extended by force of the same Statute c. the partie or parties grieued by the same extent 9. H. 4. 5. may procure an Audita querela to cause the lands of the conusor to bée likewise extended for hée or they be wronged and oppressed by the said conusors former Act and meanes But on the other side if the land remaining in the hands of the conusor bée extended by the conusée by force of the said Statute or Recognisance the conusor cannot maintaine an Audita querela against his seoffées or any of them 23. Ed. 3. Fitz. Execution 127. 45. Ed. 3. 22. to cause their lands to be extended for hée is not vexed or oppressed by the same extent by any of their meanes nor for any of their debts but for his owne debt though in the case before rehearsed they bee troubled and oppressed for his debt for when any person doth become bound by Statute or Recognisance to another and after alieneth his land or any part thereof to a stranger the body of the conusor remaineth debtor to the conusee in respect of his acknowledgement and confession of the same made of record before a competent Iudge or officer thereunto lawfully assigned and the debt is his and the burden thereof is his and the land is onely chargeable in respect that it was in his hands at the time of the Statute or Recognisance acknowledged or after and so the conusors person and the land in his hands is onely chargeable in that case As in like case if a man doe become bound by Statute or Recognisance to another and after the conusée doth purchase parcell of the land of the conusor 11. H. 7. 4. 13. H. 7. 22 45. Ed. 3. 22 2. El. Dyer 193. Plo. Com. 72. and then the Statute is forfeited the conusée may extend the Statute take and imprison the bodie of the conusor and haue the residue of his land deliuered to him in execution and the conusor shall haue no remedie by Audita querela against the conusée for that the conusor is not wronged or oppressed by this extent seeing hée himselfe is the onely debtor of the conusée and his body lands and goods are liable to the payment of this debt and not the lands in the hands of the conusee And so it is if a man bée bound by Statute or Recognisance to another and after the conusée doe purchasse parcell of the land of the conusor and a stranger purchaseth another parcell of land of him and then the Statute is forfeited and the conusée doth sue execution of the land of that stranger the other purchaser that is a wrong and oppression and therefore the said straunger may sue an Audita querela against the said conusée 11. H. 7. 4. 13. H. 7. 22. Fitz. N.B. 105. and thereby discharge his land of execution for that the said conusée hath discharged this land by his own Act viz. by purchasing of parcell of the land charged for by the Statute or Recognisance acknowledged the whole land was charged and by purchasing of parcell by the conusée hée hath discharged the whole sauing that which remaineth in the hands of the Conusor If an Infant within the age of one and twentie yeares be bound by Statute or Recognisance and the Conusor will extend the same the Infant may pursue an Audita querela to auoid the same either during his minoritie if by inspection the Court shall adiudge him within age 6. Ed. 3. 39. 23. Ed. 3. Au. qu. 26. Fi. N.B. 104 or after he shall accomplish his full age for it was a wrong and oppression practised by the Conusée to abuse the tender age of the Infant and to vrge a Statute of him before the Law did enable him to acknowledge it And the like Law is if one person will acknowledge to another a Statute by Dures of imprisonment and then the Conusée doe sue execution of the same the Conusor may prosecute an Audita querela and auoyd the Statute for in this case the Conusée hath done to the Conusor a double wrong and oppression viz. first to imprison him and thereby to exact act a Statute of him and then contrarie to the warrant of Law to extend the same against him And as in the cases aforesaid so likewise in all other cases where any person hath iust and lawfull cause to seeke and haue reliefe by an Audita querela Fi. N.B. 104 20. Ed. 3. Au. qu. 27.
amend his vessels 25 It is an oppression to many thousand woollen cardmakers cardwierdrawers of this realme who do liue by the same trade Oppression by bringing in of woollen cards to haue cards for wooll brought out of forraine regions into this Realme here sold to the hinderance of the sale of their like wares And therefore if any person shall bring or send or cause to be brought or sent any such cards for wooll to be bartered or sold in England or Wales St. 39. El. 14 St. 1. Iac. 25 by the stat of An. 39. El. he shall forf them or the very value of them to the K. and him that will seise or sue for the same 26 If any person shall erect a new weare along the sea shore Oppression by erecting of weares or in any hauen harbour or créeke or within 5. miles of the mouth of any hauen or créeke or shall willingly take destroy or spoile any spawne fry or brood of any Sea fish in any weare or other engine or deuice whatsoeuer Oppression by destroying of fish this is an oppression to all those that liue by or vse fishing in those parts and a hinderance to the coÌ„monwealth St. 3. Iac. 11 And therefore by the stat of An. 3. Iac. the offendor shal forfeit for euery time so erecting setting vp taking or destroying of fish x. l. to the king I. And if any person shall fish with any drawnet or dagnet vnder three ynches meash viz. one ynch and a halfe from knot to knot except for the taking of Smoulds in Norfolke only or with any net with cannas Oppression by nets or other engine or deuice wherby the spawne fry or brood of sea fish may be destroied this is also an oppression to all those that liue by or vse fishing a hinderance to the commonwealth and therefore the offendor shall forf such net for euery time so doing x. sÌ„ whereof the one halfe to him that will sue and the other halfe to the poore of the city towne parish or liberty where the offence shal be committed 27 For that buying selling and regrating of wood by gréedy and couetous persons is a meane to make the same déerer and is a great oppression hurt to the commonwealth St. 7. E. 6. 7. therefore it is ordained by the stat of An. 7. Ed. 6. That if any person shall buy any fuell coales or wood but onely such as will burne or consume the same Oppression by buying selling of fuell or such persons as shall sell the same again by retaile to such as shall burne or consume the same for their owne occupying without fraud or couin or wharfingers or bargemen he shall forf to the K. I. the treble vâ—lue of the same wood coales or fuell as shal be otherwise bought for lucre gaine St. 15. H. 8. 2 28 If any person shall carrie and conuey Oppression by transporting of victuals or cause to bee carried and conueyed any victuals necessarie for mens sustenance to any parts beyond the Sea vnlesse it be by licence vnder the Kings great seale sauing for the victualling of Mariners and Marchants of Shippes passing the Sea and sauing barrelled butter and meale to be carried to the parts of Ireland as hath bin accustomed this is a meane to enhaunce the prices of victuals within this Realme an so an oppression to the inhabitants of the Realme And therefore by the Statute of Anno 25. H. 8. the partie offending shall forfeit the value of the thing carried to the K. and I. St. 37. H. 8. 9 St. 13. El. 8 St. 39. El. 18. 29 By the Statute of Anno 37. H. 8. Oppression by vsurie and confirmed and explaned by the Statute of Anno 13. El. it is ordained to be vnlawfull vsurie and an oppression if any man do sell any marchandises or wares to another and buy the same againe within thrée months for a lesse price knowing them to be the same that he sold And so it is if any person by any bargaine loane exchange or shift of any wares or other things shall take in gaines for the forbearing of his money or other thing one whole yeare aboue x. l. in the 100. l. And so it is if any person shall take aboue x. l. for the forbearing of 100. l. for a yeare vpon sale or morgage of lands of the profites of the same lands and in the cases aforesaid the offendor shall forfeit for euery such offence the treble value of the wares marchandizes and other things so bargained sold changed c. and the treble value of the issues and profits of the said lands so taken by bargaine sale or morgage to the K. and I. and shall suffer imprisonment make fine at the kings pleasure And all bands contracts and assurances collaterall made for payment of any principall or money to be lent or couenant to bée performed for any vsurie in lending or doing of any thing vpon or by which loane there shal be reserued or taken aboue the rate of x. l. for the 100. l. for one yeare shall be vtterly void and he that doth take or couenant or reserue to take x. l. for the forbearance of 100. l. for one yeare and so after that rate or any summe vnder x. l. shal forf only that x. l. or other lesse summe which he doth so take or couenant or reserue to take though it be but a penny or lesse then a penny to the K. and I. c. Fraudulent shadowing of vsurious bargaines If A. doe lend to B. 100. Co. li. 5. 70 l. and do bargaine agrée with him that if I. S. do liue one whole yéere next comming that then B. shal pay him xx l. for the loane of his 100. l. for a yéere and if I. S. doe die within the yéere that then B. shall pay him but his 100. l. again this is an oppression of B. and an vsurious bargaine and A. is to be punished according to the foresaid stat of 37. H. 8. For as he made reserued the interest of xx l. payable if I. S. should liue one yéere so he might as lawfully haue put in the liues of xx other persons and so deluded the true meaning of the makers of the said Statute And in like sort if A. do lend to B. 100. l. for a yéere do bargaine with B. that if I. S. shall liue vntill the end of that yéere then B. shal pay him xx l. for the interest or loane of his 100. l. for that yéere and if the same I. S. doe die within the said yéere that then B. shall repay to A. but lxxx l. of his principall money this is an vsurious contract and an oppression to be punished according to the said statute for in both the foresaid cases there was but a shaddow deuised by the lender to protect him from the penalty of that statute which at
another manner of Treason when a seruant killeth his Master c. although there be therein no mention made of the Mistresse yet if a man or woman seruant do kill his or her Mistresse or Dame A seruant killeth his Master or Mistresse it is Petit treason 19. H. 6. 47. 12. Ass p. 30 and within the puruiew and meaning of the said stat though it be not within the letter thereof and it was Petit Treason by the common law for the seruant is retained to serue as well the one as the other and to be obedient as well to the one as to the other and one of them hath affiance in the seruant as wel as the other And if a seruant kill his Master after he is out of seruice 33. Ass p. 7 Co. li. 1. 99. if it be vpon a premeditat malice conceiued against him during the time that he was in seruice it is petit Treason for the execution of the fact doth respect and looke backe to the originall cause which was the malice the seruant conceiued against his Master when he was his seruant If a seruant do procure one to kill his Master 40. Ass p. 25 who doth kill him in the seruants presence this is petit Treason in the seruant but if he do kill him in the seruants absence then is it not petit Treason in the seruant but he is accessory to murder 2. 3. P. M. Dy. 128 A woman seruant conspired with a stranger to rob her Mistresse and at a time appointed in the night she did let him into the house and led him to the bed with a candle where her Mistresse lay sléeping the same stranger killed her Mistresse in her bed the seruant saying or doing nothing but holding the candle in this case the seruant committed petit Treason and was adiudged a principall therein though the partie who did the bloudy fact The wife cōspireth with another to kill her husband was but a murderer P. 16. Eliz. Dyer 332. If a wife and a seruant do conspire to kill the husband and appoint a time and place for it and the seruant killeth the husbād in the wiues absence this is petit Treason in them both though the wife bée absent and yet the law is otherwise if he be not a seruant but a stranger for if a woman procure a strāger to kil her husband which he doth in her absence she shal be hanged and not burned for that the principall offendor was a murderer and not a Traitor as the seruant was in the former case 4. Ass p. 25. And so abettors and procurers Abettors and procurers in petit Treason be within this part of the stat touching petit Treason although they are not expresly named within the letter of the statute The son killeth father or mother 8 Some do affirme it to be petit Treason in the sonne or daughter 21. Ed. 3. 17. to kill the father or mother and some others doe not thinke it to bée so vnlesse the father or mother doe at the same time giue meat and drinke to that sonne or daughter which doth kill him or her as to a seruant and so that the Treason should be in respect of the duetie of seruice broken and not of duetie of nature violated Breaking of prison 9 It is Petit Treason if a man outlawed of felonie 1. H. 6. 5. and imprisoned in the K. Bench be attainted for breaking of prison and letting at libertie such persons as were there imprisoned for Treason and the offendor shalb◠drawn and hanged An Indictor doth discouer counsell And it hath béene adiudged petit Treason in some age 27. Ass p. 6◠and felony in another age S. Felonie c. 15. for one of the indictors to discouer the K. counsell and his fellowes but sithence it hath béene taken onely as finable to the King Treasons by Statutes 10 Besides the before mentioned offences which be explained to be Treasons by the common lawes of this realme and besides all the offences aforesaid which were made Treason by the seuerall stat before rehearsed and after repealed by the foresaid stat of An. 1. M. there haue béen sithence that time seuerall other offences made high Treason by seueral stat which I wil set down in order as they were made and as néere as I can gather expresse the causes why they were made For as much as by the lawes of this Realme small and no due and condigne punishment was before prouided for such euill disposed persons as shold counterfeit or forge such kind of gold or siluer of other realms as is not the proper coine of this realm and yet permitted by the Quéens consent and heretofore suffered by her progenitors to be currant in paiment within this realme nor for such persons as shold counterfeit the Quéens signe manuall St. 1. M. 6. her priuie signet or her priuie seale therfore by a stat made An. 1. M. 6. it was enacted Forging the coins of other realms currāt in this realme That if any person or persons shall hereafter falsly forge or counterfeit any such kind of gold or siluer as is not the proper coine of this realme and is or shal be currant within this realme by the consent of the Q. her heires or successors or if any person or persons at any time hereafter doe falsly forge or counterfeit the Qu. signe manuall priuie signet or priuie seale Forging the Kings signet Manuall c. that then euery such offence shal be déemed adiudged high treason the offendors therein their counsellors procurers aiders and abettors being conuict according to the lawes of this realme of any the said offences shall be likewise déemed and adiudged Traitors against the Qu. her heires and successors and the realme and shall suffer and haue such paines of death forf of lands goods and cattels and lose the priuiledge of all Sanctuarie as in case of high Treason is vsed and ordained 11 Where sundrie coynes of gold and siluer of other realms not being the proper coine of this realme of England and by the sufferance of the K. and Q. be currant in paiment within this realm many euil disposed persons for their owne corrupt lucre did bring into this realme from the parts beyond the sea great quantitie of forged and counterfeit money like to the said coine of other forreine realmes and did vtter the same by marchandises and otherwise to diuers subiects of this realme to their great damage for that there was not any sufficient law then prouided for the condigne punishment of the offendors in that behalfe St. 1. 2. P. M. 11. therfore by a stat made An. 1. 2. P. M. it was established That if any person or persons shal bring from the parts beyōd the sea into this realme or into any of the dominions of the same Bringing in of
or if any person or persons to whom the sayd othe by any Commission or Commissions shall be limited or appointed to be tendered refuse to take or pronounce the said othe in manner and forme aforesaid that then the partie so refusing and being thereof lawfully indicted or presented within one yeare next after such refusall and conuicted or attainted at any time after according to the lawes of this Realme shall suffer and incurre the daungers penalties paines and forfeitures ordained and appointed by the Statute of Prouision and Praemunire made An. 16. R. 2. St. 16. R. 2. 5. And also if any of the persons aboue named and appointed by this Act to take the othe aforesaide doe after the space of thrée moneths next after the first tender thereof The second refusall of the Othe high Treason the second time refuse to take and pronounce or doe not take and pronounce the same in forme aforesaide to be tendered That then euerie such offendor and offendors for the same second offence and offences shall forfeit loose and suffer such like and the same paines forfeiture iudgement and execution as is vsed in cases of high treason No corruption of blood or forfeiture of dower But no attainder by force of this Act shall extend to make any corruption of blood the dis-heriting of any heire forfeiture of dower nor to the preiudice of the right or title of any person other than of the offendor during his her or their naturall liues onely c. But forasmuch as the Quéene is otherwise sufficiently assured of the faith and loyaltie of the Temporall Lordes of her high Court of Parliament Therefore this Act shall not extend to compell any temporall Lord of or aboue the degrée of a Baron of this Realme Temporall Lords discharged of the Othe to take or pronounce the Othe aforesaide nor to incurre anie penaltie limited by this Acte for not taking or refusing the same Prouided alwayes that no person shall be compelled by vertue of this Acte to take the Othe aboue mentioned at or vpon the second time of offering the same according to the forme appointed by this Statute except the same person hath béene is or shall bée an Ecclesiasticall person that had hath Who only shal take the Othe vpon the second tender or shall haue in the time of one of the Raignes of the Quéenes father brother or sister or in the time of the Quéenes Maiestie her heires or successors charge care or office in the Church Or such person or persons as had hath or heereafter shall haue any office or ministerie in any Ecclesiasticall Court of this Realme vnder any Archbishop or Bishop in any the times or raignes aforesaide Or such person or persons as shall wilfully refuse to obserued the orders and rites for diuine seruice that bee authorized to be vsed and obserued in the Church of England after that he or they shal be publikely by the Ordinary or some of his Officers for Ecclesiasticall causes admonished to kéepe and obserue the same Or such as shall openly and aduisedly depraue by wordes writings or any other open fact any of the rites and ceremonies at anie time vsed and authorized to be vsed in the Church of England Or that shall say or heare priuate Masse prohibited by the Lawes of the Realme And all such persons shall be compellable to take the Othe vpon the second tender or offer of the same and incurre the penalties for not taking the saide Othe and none other 16 Because diuers seditious and euill disposed people haue lately procured and obtained to themselues from the Bishoppe of Rome and his Sée diuers Bulles and Writings the effect whereof hath béene and is to absolue and reconcile all those that will be contented to forsake their due obedience to the Quéene and to yéelde and submit themselues to the vnlawfull and vsurped authoritie of the saide Bishoppe and his Sée and by colour of the saide Bulles and Writings haue by their lewd practises and perswasions so farre wrought that sundry simple and ignorant persons haue béene contented to be reconciled to the saide vsurped authoritie and and to take Absolution at the handes of the aforesaide subtile practisers whereby there hath growen disobedience in many to absent themselues from diuine seruice and thought themselues discharged from all allegeance to her Maiestie whereby vnnaturall Rebellion hath ensued For redresse whereof and to preuent great inconueniences that might ensue by a Statute made Anno 13. Elizab. 2. it was enacted St. 13. El. 2. That if any person or persons shall vse or put in vre in any place within this Realme Giuing or taking absolution by any bulles from Rome or any the Quéenes dominions any bull writing or instrument written or printed of absolution or reconciliation obtained from the Bishop of Rome or any his successors or from any other person or persons authorized or claiming authoritie by or from the said Bishoppe his predecessors or successors or Sée of Rome Or if any person or persons shall take vpon him or them by colour of any such bull writing instrument or authoritie to absolue or reconcile any person or persons or to graunt or promise to any person or persons within the Realme or any other the Queenes Dominions any such absolution or reconciliation by any speach preaching teaching writing or any other open déede Or if any person or persons within this Realme Obtaining of bulles from Rome or any the Quéenes Dominions shall willingly receiue and take any such absolution or reconciliation Or else if any person or persons haue obtained or gotten since the last day of the Parliament holden Anno 1. Elizab. or shall obtaine or get from the said Bishop of Rome or any his successors or Sée of Rome any manner of bull writing or instrument written or printed containing any thing matter or cause whatsoeuer or shall publish or by any waies or meanes put in vre any such bull writing or instrument Then all and euery such Act and Acts offence and offences shall be déemed and adiudged to be high treason and the offendor and offendors therein their procurers abettors and councellors to the fact and committing of the saide offence or offences shall be déemed and adiudged high traitors to the King and the Realme and being thereof lawfully indicted and attainted according to the course of the Lawes of this Realme shall suffer death and forfeit all their lands hereditaments c. and cattells as in cases of high treason by the Lawes of this Realme ought to be lost and forfeited c. All and euery ayders The forfeiâ—â—res of Ayâ—â—rs Mainâ—â—inors c. after the offence comforters or maintainers of any of the saide offendor or offendors after the committing of any of the saide actes or offences to the intent to set foorth vpholde or allow the dooing drexecution of the saide vsurped power iurisdiction or authoritie concerning the premisses or any part thereof
graine or to abate or diminish the Rents or yearely value of any Mannors Lands or Tenements or the price of any victuals corne or graine or any other thing vsuall for the sustenance of men and béeing required and commaunded by any Iustice of Peace or by the Sherife of the Countie or by the Maior Bailife or Bailifs or other head Officers of any Citie or Towne Corporat where such assembly shall bee had by Proclamation to bée made in the Quéenes name to retire or returne in peaceable manner to their places and houses from whence they came and they or any of them notwithstanding such Proclamation shall remaine or make their abode or continue together by the space of one whole houre after such commaundement or request made by Proclamation or after shall in that forcible manner doe or put in vre any of these things last before mentioned then as well euerie such abode or continuing together as euerie such act that after such commaundement or request by Proclamation had or made shall bée done practised or put in vre by any persons béeing aboue the number of twelue shall bee adiudged Felonie and the offendors therein shall be adiudged Felons and shall suffer onely execution of death as in case of Felonie If any person or persons vnlawfully and without authoritie Raising of vnlawful assemblies by some act or words by ringing of any Bell or Bells sounding of any Trumpet Drumme Horne or other instrument whatsoeuer or by firing of any Beacon or by malitious speaking or vttering of any words or making of any outcrye or by setting vp or casting of any bills or bill or writing whatsoeuer or by any other déed or act shall raise or cause to bée raysed or assembled any persons to the number of twelue or aboue to the intent that the same persons should doe or put in vre any of the acts or things abouesaid and that the persons to the number of twelue or aboue so raysed and assembled after request or commaundement had or giuen in forme aforesayd shall make their abode or continue together as is aforesayd or vnlawfully and in forcible manner perpetrate doe commit or put in vre any of the acts or things abouesayd then all and singular persons by whose speaking déed act or any other the meanes aboue specified any persons to the number of twelue shall bée raysed or assembled for the doing committing or putting in vre any of the acts or things aboue mentioned shall bée adiudged for his so speaking or doing a Felon and shall suffer execution of death as in case of Felonie Reléeuing them which be assembled If any wife or seruant of any of the same persons or any other person whatsoeuer shall willingly and without compulsion bring send deliuer or conuey any Money Harneyes Artillerie Weapons Meat Bread Drinke or other Victuall to any person or persons so being assembled as is aforesayd during such time as hée or they shall bee so assembled together in forcible manner as is aforesaid then euerie wise seruant or other person so bringing or conueying c. any of the foresayd things to the same persons so béeing assembled together in forcible manner or to any of them and not departing to their houses or dwelling places vpon request or commaundement made vnto them as is aforesaid shal be adiudged a felon and shall suffer execution of death as in case of felonie Vnlawful assembly by xl and more If any persons to the number of fortie or more shall assemble together in forcible manner vnlawfully and of their owne authoritie to the intent to execute doe or put in vre any of the things aboue specified or to do other felonious or rebellious act or acts and so shall continue together by the space of thrée houres after Proclamation shall bée made at or nigh the place where they shall bée so assembled or in some Market Towne thereunto next adioyning and after notice thereof to them giuen then euerie person so willingly assembled in forcible maner and so continuing together by the space of thrée houres after such Proclamation made and notice thereof giuen shal be adiudged a felon S. Riots c. 32. c. 32 By the Statute made Anno 39. Eliz. it was enacted St. 39. El. 17 That all idle and wandring Souldiers or Mariners Wandring souldiers and mariners or idle persons which now are or hereafter shall bée wandring as Souldiers or Mariners shall settle themselues in some seruice labour or other lawfull course of life without wandring or otherwise repaire to the places where they were borne or to their dwelling places if they haue any and there remaine betaking themselues to some lawfull trade or course of life vpon payne that all persons offending contrarie to this Act to bée reputed as Felons and to suffer as in case of Felonie without any benefit of Cleargie to bee allowed And euerie idle and wandring Souldier or Mariner which comming from his Captaine from the Seas or from beyond the Seas shall not haue a Testimoniall vnder the hand of some one Iustice of Peace of or néere the place where hee landed setting downe therein the place and time where and when hée landed and the place of his dwelling or birth vnto which he is to passe as aforesaid and a conuenient time therein limited for his passage or hauing such testimoniall shall wilfully excéed the time therein limited aboue fouretéene dayes And also as well euerie such idle and wandring Souldier or Mariner as euerie other idle person wandring as a Souldier or Mariner which shall at any time hereafter forge or counterfeit any such Testimoniall Forging a Testimoniall or haue with him or them any such Testimoniall forged or counterfeited as aforesayd knowing the same to bée counterfeited or forged in all these cases euerie such act or acts to bée Felonie and the offendors to suffer as aforesayd without any benefit of Clergie It shall and may bée lawfull for the Iustices of Assises Iustices of Gaole deliuerie and Iustices of Peace of euerie Countie and for all Iustices of Peace in Townes Corporat hauing authoritie to heare and determine Felonies to heare and determine all such offences in their generall Sessions and to execute the offendors which shall bée conuicted before them as in cases of Felonie is accustomed Except some honest person Retaining an offendor into seruice valued at the last Subsidie next before that time to tenne pounds in goods or fortie shillings in lands or else some honest Freeholder as by the sayd Iustices shall bee allowed will bee contented before such Iustices as such person shall bee arraigned of Felonie to take him or them into his seruice for one whole yeare then next following and before the sayd Iustices will bee bound in Recognisaunce of tenne pounds to bee leuied of his lands goods tenements and cattels to the vse of the King if hée kéepe not the sayd person or persons for one whole yeare and bring him
partie most interessed or grieued by the same murder or felonie is to prosecute sute against the saide offendor by Appeale and thereby to séeke reuenge against him for the wrong done to himselfe or his auncestor or else the offendor is to be indited at the Kings sute whose peace hée hath broken and whose lawe he hath offended and who hath a speciall interest in all manner of treasons and felonies to punish them to wéede them out of his kingdomes and dominions and to defend his subiects from them And therefore I am to expresse in this Chapter and the next what an Appeale of felonie is and what an Indictment is by whom for whom and against whom and in what cases they are to be begunne prosecuted and maintained what defences or pleas are to be made or pleaded by the supposed offendors vnto them and what counterpleas may be obiected against the same plees Appeale of death An Appeale is a plaint of one person made against another with an intent to attaint him of felonie by a course of Lawe prouided therefore which appeale may be brought against a woman couert without her husband against an infant and all others that can commit felonie and a woman may haue an appeale for the death of her husband Appeale by a woman of the death of her husband because the husband and wife be one flesh but of the death of none other by force of the Statute of Magna Charta which hath ordained That none shall be taken St. 9. H. 3.34 or imprisoned by the appeale of any woman for the death of any other than of her husband And therefore if a woman doe bring an appeale of the death of her father and the Defendant would admit it yet the Court will abate it 10. Ed. 4.7 Plow Com. fol. 85. because it is contrary to the said Statute Appellāt conueieth his title by a woman 2 As a woman shall haue no Appeale of the death of any other but of her husband No more shall any cosin of him that was slaine who maketh his conueiance in kinred by a woman haue any appeale of the death of him that is killed notwithstanding he be issue male and not female Appellant conueyeth his title by a woman and notwithstanding that the woman by whom he maketh his conueiance died in the life time of him 20. H. 6.46 Fi. Cor. 385 17. Ed. 4.1 of whose death the appeale is commenced As if a man haue issue one onely daughter who marrieth a husband hath issue a sonne and dieth and after the father of that woman is slaine In this case the sonne of the woman shall not haue an appeale of the death of his saide grandfather though hee be his next heire at the common lawe and inheritable to his land because his mother was foreclosed of it by the foresaid statute of Magna Charta and so likewise he which hath none other title thereunto but that which he deriueth from his saide mother Fi. Cor. 384 17. Ed. 4.1 But if he that was slaine haue none heire on the fathers side then the vncle or next of kinne on the mothers side shall haue the appeale yea though he doe conuey his title thereunto by a woman 3 By the auntient lawe of this Realme a woman could not haue an appeale of the death of her husband vnlesse her said husband were slaine betwéene her armes within the yéere and day before Neither could shée or any other haue an appeale vnlesse she or he were present at the death of the partie slaine and sée it But that Lawe was altered by the Statute of Gloucester St. 6. Ed. 1.9 whereby it was ordained That no Appeale shall be abated so soone as they haue béene heeretofore But if the appellant in an appeale doe declare the déede the yeare the day the houre The declaration in appeale of murder the time of the King and the Towne where the déede was done and with what weapon hée was slaine the appeale shall stand in effect And the appeale shall not be abated for default of fresh sute where a man doth sue within the yeare and the day after the déede done 50. Ed. 3.15 28. Ed. 3.91 27. Ass p. 3. 4 If a woman will haue an appeale of the death of her husband The woman must be the deads lawfull wife it is requisite that shée be not onely his wife indéede viz. de facto but also lawfully and in right viz. de iure for neuer accoupled in lawfull marriage is a good plea to barre her of her appeale And it shall be tried by the Bishop whether she be his lawfull wife or not 20. H. 6.46 12. El. Dyer 296. 5 It is requisite that a woman who will maintaine an appeale of the death of her husband shall liue sole and vnmarried The woman must liue vnmarried for by her second marriage her appeale is extinct though her second husband doe die within a yeare and day after the death of her first husband And if a woman doe bring an appeale of the death of her husband and hanging the Writ shée doth marry another husband her appeale shall abate for euer 11. H. 4.46 6 If a woman doe bring an appeale of the death of her husband A woman marrieth betweene iudgemēt executiō and doe pursue the Defendant vntill Iudgement And then after iudgement and before execution shée marrieth an other husband In this case shée shall not obtaine execution viz. the Defendant shall not be hanged at her sute for shée hath willingly lost the name of her first husband before shée hath obtained the effect of her sute and the reuenge which shée brought her appeale for Where appeale lieth but no dower 7 There be some Cases where a woman shall haue an appeale of the death of her husband though she be not endowable of the possession of the same husband As where her husband is attainted of treason 27. As p. 41 35. H. 6.58 and after one doth kill him his wife shall haue an appeale and yet she shall haue no dower And in like sort if a woman doe elope from her husband and after one doth kill him she may maintaine an appeale against the offendour but no writ of dower against his heire And many other Cases there be where a man was so seised of his lands that his wife is not thereof endowable by the Lawe And yet if hee be slaine she may maintaine an appeale against the manqueller Where the wife may haue appeale none other shall 8 Where a woman may haue an appeale of the death of her husband 20. H. 6.47 Kel fol. 120 none other shall haue it during her life nor after her death though the wife doe die within the yeare and day after the death of her husband and before the appeale commenced for that the appeale was once out of the blood it shall not be restored to his
proces in Appeale that hee bring the bodies of the apellées to the next countie to answer the plaintife And if the said Serieant do answer at the second county that he cannot find them Proces vpon Appeal before the Coroner thē an Exigent shal be awarded against the principals But the Exigent touching the accessories shall stay vntill the principals be outlawed And so it appeareth by Britton 22. Ass p. 81 Fi. Cor. 234 Fitz. Proces 226. some other authoritie that an Exigent shal be awarded in Appeale of death cōmenced before the coroner in the coūty after the first Capias returned Fitz. Proces 226. Fitz. Cor. 184. St. 25. Ed. 3. 14. 59 But in an Appeale or Indictment of robbery or other felony Proces vpon an Appeale or Indictment of felonie there shal be two Capias awarded before the Exigent And the same is confirmed by these words of the stat de proditionibus made 25. E. 3. viz. It is agréed that after any man be indicted of feloni ebefore the Iust to heare and determine in their Sessions the Sherif◠shal be commanded to attach his body by a writ or precept called Capias And if the Sherife returne in the said precept that the body is not found another writ or precept of Capias shall incontinently be awarded returnable thrée wéekes after and in the same writ or precept it shall bée comprised that the Sherife shall cause to be seised all his chattels and safely kéepe them vntill the day of the writ or precept returned And if the Sherife returne that the body is not found and the indictée commeth not S. Forf 44. the Exigent shal be awarded and the chattels shal be forfeited as the law of the crown commaundeth But if he come and yéeld himselfe or be taken by the Sherife or other minister before the returne of the second Capias then the goods and chattels shall be saued This statute doth not make mention of the death of a man nor of robberie but of felonie generally which includeth all And yet some doe affirme that it was intended to be made onely for robberie and larcenie Fitz Proces 226. but it is prouided for those which be indicted before Iust to heare and determine and not for those against whom an Appeale is commenced before the Coroner and it was rather ordained to seise the felons goods vpon the second Capias than to giue proces Proces against indictées in another county 60 And because some persons appealed or indicted of diuers felonies in one countie or outlawed in the same countie were dwelling or receiued in another county whereby such felonious persons indicted and outlawed haue béen incouraged in their mischiefe for that they might not be attached in another countie for the redresse whereof by a stat made anno 5. E. 3. it was ordained St. 5. E. 3 11 That the Iust assigned to heare and determine such felonies shall direct their writ to all the counties of England where néed shall be to take such persons indicted 61 Because diuers persons for their singular reuenge and not of right malitiously of their subtill imagination haue caused and procured falsly to indict and appeale seuerall of the Kings subiects of diuers treasons felonies and trespasses before I. of peace and other commissioners other Iust hauing authoritie to take indictments or appeals in diuers forreine counties liberties and franchises of England wherein the said liege people neither bee nor euer were conuersant or dwelling By force of which appeales and indictments and the processes therupon made in the said counties franchises and liberties the said persons so indicted haue béen put in Exigent and after outlawed and therupon their goods and chattels lands and tenements haue bin forf and they in great perill of their liues whereas the said persons so indicted appealed or put in Exigent or outlawed had neuer knowledge of such indictmēts appeals Exigents or Outlawries For the preuention whereof it was ordained by the stat of an 8. H. 6. St. 8. H. 6. 10 That vpon euery indictment or appeale by the which any of K. liege people dwelling in other counties Appeale of indictments of persons dwelling in forrein Counties than there where the indictment or appeale shal be taken of treason felony trespas before I. of peace or any other hauing power to take such indictments or appeales or other Commissioners or Iustices in any county franchise or libertie within England before any Exigent awarded vpon any indictment or appeale to be taken in forme aforesaid immediatly after the first writ of Capias vpon euery such indictment or appeale awarded and returned another writ of Capias shal be awarded directed to the Sherife of the county whereof he which is indicted is or was supposed to be conuersant by the same indictment returnable before the same Iustices or Commissioners before whom he is indicted or appealed at a certaine day containing the space of iij. moneths from the date of the said last writ by the which writ of second Capias it shal be contained commanded to the same Sherife to take the body of him which is so indicted or appealed if he may bée found within his bailiwike if he cannot be found within his bailiwike that the Sherife shall make proclamation in two counties before the returne of the same writ that he which is so indicted or appealed shal appeare before the same Iust or Commissioners in the countie liberty or franchise where he is so indicted or appealed at the day contained in the said last writ of Capias to answer to the K. or to the party of the felony treason or trespas whereof he is indicted or appealed After which second writ of Capias so serued and returned if hée which is so indicted or appealed doth not come at the day of the said writ of Capias returned the Exigent shal be awarded against such indictees or appellées and euery of them And if any Exigent be awarded vpon any such indictment or appeale against the foresaid forme or any outlawrie therupon pronounced the sayd Exigent and the Outlawrie thereupon pronounced and euery of them shall bee void And the partie against whom such Exigent is awarded or outlawrie pronounced against the foresaid forme shall not bee endamaged in his life lands goods c. And euery one which is indicted or appealed in forme aforesaid after he is acquited by verdict in forme of law may haue an action vpon the case against euery procurer of such indictments or appeales in which actiō there shal be like proces as in an action of trespas vi armis And if the said procurers be attainted the plaintife shall recouer treble damages But this stat extendeth not to indictments or appeals taken in the countie of Chester Nor to any indictment or appeale of felonie or treason taken of any of the K. liege people which at the time of the same felonie or treason
man in his owne defence Killing a man by mischance or in his owne defence or by misaduenture by the common Law shall not haue his clergy Br. Cor. 183 Neither shall he who committeth petite Larceny Petit larcenie haue his clergy and the reason is for that in those cases he shall not haue iudgement of death 19. H. 6. 47. Fit Co. 283 St. 25. E. 3.4 7 He which had offended in high Treason Offendors in Treasons by the common law should not haue had his clergy neither he which had offended in petit Treason vntill by the stat of An̄ 25. E. 3. pro Clero it was enacted That all Clerkes as well secular as religious which shal be from henceforth conuict before the secular Iustices for any manner Treasons and Felonies touching other persons thē the King himselfe or his royall Maiesty shall fréely haue and enioy the priuiledge of holy Church and shal be without any impeachment or delay deliuered to the Ordinaries demaunding them It appeareth by the statute of Anno 4. H. 4. St. 4. H. 4. 3 That the Clergie promised to the King in Parliament that a Clerke conuict for Treason touching the King himselfe or for being a common théefe notoriously detected and deliuered to the Ordinary shall not make his purgation 8 He that had confessed a felony Confession of felony could not haue had his Clergy by the common Law vntill the stat of An̄ 9. E. 2. St. 9. E. 2. 15 viz. Articuli Cleri was made Because after his confession he could not purge him of that offence and therefore it was in vaine to haue him deliuered to the Ordinary to be tryed of that offence But the spirituall men at that time intended that the same confession of a Clerke before a Temporall Iudge was void for that he could not be Iudge of a Clerke and therefore they obtained remedie by the said articles in two speciall cases viz. Abiuration and Approuement and by the equitie of the said statute and in fauour of life it is now permitted in all other cases of attainders Clergy taken away by seueral statutes A Cutpurse 9 By the statute of An. 8. Eliz. St. 8. El. 4. it is enacted That no person or persons which shal be indicted or appelled for felonious taking of any money goods or cattels from the person of any other priuily without his knowledge in any place whatsoeuer and thereupon found guilty by verdict of xij men or shall confesse the same vpon his or their arraignment or will not answer directly to the same according to the lawes of this Realme or shall stand wilfully or of malice or obstinatly mute or challenge peremptorily aboue the number of xx or shal be vpon such indictment or appeale outlawed shall be admitted to haue the benefit of his or their clergy but be excluded therof and shall suffer death in such manner forme as they should if they were no clerks Forging of writings 10 By the stat of An. 5. El. St. 5. El. 14. it is established That if any person or persons being conuicted or condemned of any of the offences specified in that Statute prouided against the forging of euidences writings by any of the waies or meanes in the same statute limitted shall after any such his or their conuiction or condemnation eftsoones commit or perpetrate any of the said offences in the forme therin mentioned that then euery such second offence or offences shal be adiudged felony the parties thereof conuicted or attainted shall suffer death losse forfeiture of their goods cattels lands tenemēts as in cases of felony without hauing any aduantage or benefit of Clergy or Sanctuary S. Forging c. 8. and Felonies by Statute 27. 11 By the statutes of An̄ 25. H. 8. An̄ 5. El. St. 25. H. 8. 6 St. 5. El. 17. it is enacted That if any do commit Buggery Buggery with mankind or beast the same offence shal be adiudged felony and that no person offending in the same shal be admitted to his clergy S. Felonies by Stat. 11. 12 By the statute of An̄ 5. El. St. 5. El. 20 it is enacted That euery person and persons of the age of xiiij yeares or aboue calling himselfe an Egyptian Egyptians or béeing in company with them or counterfeiting or disguising himselfe by his apparell spéech or other behauior like vnto the vagabonds calling themselues Egyptians and so doth continue at one or seuerall times by the space of a moneth shal be adiudged a felon and shall loose the priuiledge and benefit of Sanctuary and Clergy S. Felonies by Stat. 15. Relieuing of a Iesuit or Priest 14 By the stat of Ann̄ 27. El. St. 27. Eli. 2. it is enacted That euery person which shall wittingly willingly receiue relieue comfort aid or maintaine any Iesuit seminary priest or other priest deacō or religious or ecclesiastical persō whatsoeuer being borne within this realme or any the dominions thereof heretofore sithence the feast of S. Iohn the Baptist an̄ 1. Reg. El. ordained made or professed or hereafter to be made ordained or professed by any authoritie or iurisdiction deriued from the Sea of Rome being at liberty or out of hold knowing him to be a Iesuite Seminarie Priest or such other Priest Deacon or religious or ecclesiasticall person as is aforesaid shal for such offence be adiudged a felon without benefit of Clergy and shal suffer death loose and forfeit as in case of one attainted of felony S. Felonies by Stat. 22. 15 By the Statute of Anno 18. Eliz. St. 18. El. 6. it is ordained That if any person or persons shall fortune to commit or doe any manner of felonious Rape Rape Rauishment or Burglary Burglary or shall vnlawfully and carnally know and abuse any woman child vnder the age of tenne yeares and shal be therof found guilty by verdict be outlawed or confesse the same vpon his arraignment he shall suffer paines of death and forfeit as in cases of felony without any allowance or priuiledge of Clergy 16 By the statute of An̄ 3. H. 7. St. 3. H. 7. 2 it is enacted Taking a woman against her will That if any person or persons shall take any maid widow or wife which hath any lands or goods or is heire apparant to her auncestor against her wil vnlawfully such taking procuring and abotting to the same and also receiuing wittingly the same woman so taken against her will knowing the same shal be felony and such misdoers takers and procurators to the same shal be reputed taken as principall Felons But this act doth not extend to any person taking a woman onely clayming her as his ward or bondwoman Ward Bondwoman And by the stat of 39. El. St. 39. El. 9. it is ordained That euery such person persons as shal be conuicted or attainted of or for any
Confederacies of the same committed vpon the land within this Realme And if any person happen to be indicted for any such offence done vpon the Seas or in any other place aboue limitted then such order proces iudgement and execution shall be vsed and made to and against euery such person so indicted as against Traytors Felons and Murderers for Treason Felony Robbery Murther or other such offences done vpon the land and such as shal be conuict of any such offeÌ„ce by verdict confession or proces shall suffer such paines of death losse of lands goods and cattels as if they had bin attainted and conuicted of any of the said offences done vpon the land No pennance for high Treason 5 The foresaid statute of West 1. maketh mention only of felons and felonies and therefore in high Treason whether it be by indictment 15. E. 4. 33 M. 3. 4. El. Dy. 205 300 or by any other meanes whatsoeuer the offendor shal not haue the said iudgement of pennance viz. of paine grieuous and durable but shall haue another iudgement that is to say as of a Traitor conuict No pennance for a man before attainted 6 If a man that is attainted of Felony be brought to the barre 8. H. 4. 2 26. As p. 19 and asked what cause he can shew why he should not be put to death and he will stand mute in this case he shal be hanged and not put to his penance for hee cannot put himselfe vpon an Enquest of felonie because he was attainted thereof before and so he is out of the case of the stat 7 If a man vpon his arraignement doth confesse the felony Standing mute after confession and before iudgement at another day he will stand mute by fraud and so it is found in this case he shal be hanged 14. E. 4. 7. and not put to his penance for his iudgement shall be giuen vpon his confession And so it is Demurring in law if he do demur in law vpon any point which is adiudged against him he shal be hanged for in both those cases he is out of the puruiew of the foresaid stat of West 1. And in like sort he shal be hanged and not put to his penance if he be indicted and arraigned for a murder or manslaughter committed within the Kings Palace or where hée doth abide according to the stat of Anno 33. H. 8. St. 33. H. 8. 12. if he do stand mute or will answer indirectly 8 In all cases where a man vpon his arraignement doth stand mute Inquirie of him that standeth mute before he shal be hanged put to his penance or otherwise suffer death it shal be inquired if he do stand mute by fraud or by the act of God for if it bee by the act of God 43. Ass p. 30 the Court ex officio ought to inquire if he be the same person and of all other pleas that he might haue pleaded if hée had not béene mute to haue staid execution M. 8. H. 4. 1. And this inquirie is but of office and shall be made by the Marshals seruants and others But if it be in case where an issue is ioyned by the consent of the parties and after when the Enquest doth come the prisoner doth stand mute there the Court shall charge the Enquest which appeareth therewith without putting any of the Marshals seruants vnto them and so change that which was a Iurie by the consent of the parties to an Enquest of office And their charge shall be to enquire of the time when he did speake and if he be mute of malice or in delay of his execution or by the act of God But this charge or inquirie ought not to be made or giuen where the prisoner did speak to the Court when he was at the bar and after the same day because he would not ioyne issue or challenge peremptorily aboue the number appointed to him by the law be adiudged to his penance for then it doth appear to the court that he doth it of malice 10. E. 4. 19 And the same law is if a prisoner after his confession or attainder hath continually remained in prison and is brought before the same Iustices before whom hée did confesse his felonie or was attainted to answer why execution should not be done of him and he will stand mute in this case there néedeth no inquirie to be made if he be the same person or not for that doth appeare to the Iustices by his continuall remaining in prison But it is otherwise if he goe at libertie after his attainder by abiuration outlawrie and such like 4. E. 4. 11. 14. Ed. 4. 7. 8. H. 4. 2. 9 The iudgement in the sayd penance The Iudgâ—ment in penance viz. in the said paine heauie and grieuous is That the prisoner shall be sent to the prison from whence hée came and put into a meane house stopped from light there shal be laid vpon the bare ground without any litter straw or other couering and without any garment about him sauing something to couer his priuie members and that he shall lie vpon his backe and his head shal be couered and his féet bare and that one of his armes shall be drawne with a cord to one side of the house and the other arme to the other side and that his legges shall be vsed in the same manner and that vpon his bodie shal be laid so much yron and stone as he can beare and more and that the first day after he shall haue thrée morcels of barlie bread without any drinke and the second day he shall drinke so much as he can thrée times of the water which is next the prison doore sauing running water The forfeiture without any bread and this shal be his diet vntil he die Fitz. Escheat 10. And he against whom this iudgement of penance shal be giuen shall forfeit to the king his goods but he shall forfeit no land Iudgement and Execution in Treasons Felonies c. HAuing written of Treasons Felonies shewed who be principals and who be accessories therein how the offendors therein are to be pursued by Appeales or inditements what pleas they may plead how they are to be tried that the truth of each persons innocency or guiltinesse may appeare I am now to treat of the iudgement execution which by the lawes statutes of this Realme must follow therupon As first Iudgement where the prisoner is acquit if he that is arraigned of treason or felonie be acquit thereof there is none other iudgement but that the Court doth discharge him paying his fées 2 The iudgement of a man attainted of high Treason is Iudgement in high treason of a man that he shall bée led backe againe to the place from whence he came and from thence be drawn vpon a hurdle to the place of execution and there be hanged by the necke
leases for the terme of his owne or another persons life of lands T. for life And because tenant in taile is in diuers respects but tenant for the terme of his owne life T. in tayle of his lands intailed therefore if he commit Petit Treason or Felonie he shall forfeit his said intailed lands but for terme of his owne life And he that hath land in another right shal forfeit for high Treason petit Treason Murder or other felony no longer or greater estate than he hath in the same lands as a man seised in the right of his wife of laÌ„ds T. in the right of his wife or church or in the right of his church Fitz. Forf 13. shal forfeit no further estate in the same lands but during his owne estate therein as it doth appeare not onely by the rules of the common lawes but the same is also confirmed by the Statute of 5. Ed. 6. 11. hereafter rehearsed The forf of lands in tayle 26 By the common law Tenant in tayle beeing attainted of high Treason should haue forfeited the lands whereof hée was so seised of an estate in tayle but onely for the terme of his owne life and the same after his death should haue discended to his heire But now by the Statute made Anno 26. H. 8. and Anno 5. Ed. 6. St. 26. H. 8. 16. St. 5. E. 6. 11 it is ordained That euerie offendor and offendors being hereafter lawfully conuict of any manner of high Treason by presentment confession verdict or Proces of Outlawrie according to the due course and custome of the lawes of this Realme shall loose and forfeit to the King his heires and successors all such lands tenements and hereditaments which any such offendor or offendors shal haue of any estate of inheritance in his own right in vse or possession by any right title or meanes within this realme of England or elsewhere within any the Kings dominions at the time of any such Treasons committed or at any time after 16. El. Dyer 332. As if the King giue land to the husband and wife and the heires males of their two bodies lawfully begotten the remainder thereof to the heires males of the body of the husband lawfully begotten reseruing the reuersion to himselfe and the husband and wife haue issue a sonne and the husband committeth high Treason is attainted thereof and executed and this attainder is confirmed by Act of Parliament and all the offendors lands bée giuen to the King Sauing to all Straungers their right other than to the Donor in Tayle and his heirs In this case after the death of the wife the King shall haue the land for that by reason of the fathers attainder of Treason the estate Taile was forfeyted and extinguished by force of the sayd Statutes of Anno 26. H. 8. and Anno 5. Edw. 6. and the bloud corrupt An estate taile forfeited and extinguished and the heirs disabled for that in his lineall conueyance of his discent to the land hée must deriue himselfe heire as well to his father as to his mother Br. Done 61 Co. li. 1. 103 And in like sort if a man seised of lands in fée simple maketh a feoffement thereof to certaine persons to the vse of his wife for the terme of her life the remainder thereof to the vse of the heires of his owne bodie lawfully begotten after the feoffor hath issue a sonne and is attainted of high Treason and executed In this case his sonne shall not inherit this land as heire to his father whose bloud was corrupt by his attainder but the land shall be forfeited to the King by the foresayd Statute of 26. H. 8. And as tenant in taile by committing of high Treason shall by force of the foresayd Statutes of 26. H. 8. 5. Ed. 6. forfeit those lands wherof he hath the possession reuersion or remainder in tayle so shall hée likewise forfeit to the King by committing of high Treason those lands whereunto hée hath but a right in taile Pl. Com. 547. As if the King giue lands to a man Forf of a right in tayle and to the heires males of his bodie lawfully begotten reseruing the reuersion to himselfe and the tenant in tayle hath issue a sonne and dyeth and the sonne doth enter and make a feoffement in fée to a stranger of the same land and then hath issue a sonne and committeth high Treason and is attainted thereof this land shall bée forfeited to the King for by this feoffement made by tenant in tayle to a straunger there passed none other estate from the same tenant in tayle but only an estate for the terme of his owne life and so the tayle and the right of the tayle remained in the tenant in tayle and by his attainder the estate in tayle is extinguished in the Kings reuersion in fée simple And the King shall bee sayd rather to haue this land reuerted vnto him as if all the issue of tenant in tayle were dead than by forfeiture for the words of the Statute of 26. H. 8. be All persons attainted of Treason shall loose and forfeit to the King his heires and successors all lands and tenements which such offendor shall haue of any estate of inheritance at the time of the Treason committed or at any time after Sauing to all others and their heires other than the offendors in Treason their heires and successors all their rights and possessions c. which they had at the day of the Treason committed or after And by these generall words That they shall loose and forfeit all lands and tenements which they haue of any estate of inheritance and by excluding the heire in the Sauing lands tayled shall bée forfeited and the lands in this case cannot be aptly termed to be forfeited to the King and his heires where hée had the fée simple before but are rather to be sayd reuerted to the King the tenant in tayle dying without any issue which by his attainder of Treason and the corruption of his blood Co. li. 7. 33. could inherit this land And if the King by his letters Patents vnder the great Seale doe create an Earle Forf of name or title of dignitie intailed and giue him the title and honour of an Earledome to him and the heires males of his body begotten and the grantée hath issue two sonnes by seuerall women and then dyeth and his eldest sonne doth enioy the same Earledome and after committeth Treason by leuying of warre in the Realme against the King and is attainted thereof and then dyeth without issue of his bodie begotten by this attainder the same shal be forf to the K. and not discend to the brother of the half blood nor to his heirs for this Earldom and name of dignity may be intailed according to the stat of W. 2. St. 13. E. 1. 1 De donis conditionalibê° for that it concerneth land must
be supported and maintained with land to vphold the countenāce charge of the owner thereof And therfore this Earldome being by the K. giuen to the Earle the heires males of his body begotten is an inheritance which may discend from one heire male to an other and then by the speciall words of the before rehearsed Statute of 26. H. 8. and 5. Ed. 6. it shall be forfeited to the King by the said heires attainder of high treason for it was in the same heire an hereditament and whereof he had an estate of inheritance And moreouer when the King at the first did giue to this Earle and the heires males of his body begotten the foresaide great title of honour though there was no condition expressed in the same grant yet there was a secret condition implied therein viz. that the said grauntée and the heires males of his body should be assistant and seruiceable to the King his heires and successors by his Councell in the time of peace and by his force and prowesse in the time of warre Therefore when the heire male of this Earle the first grauntée did take Councell to breake the peace of the King and leuied warres and imployed his force and power against him he first brake the same secret condition which was annexed to his ancestors graunt of the Earledome And so there is reason and cause whie his said title of honour depending vpon the same condition should therewith cease and determine and that the same should returne againe to the Crowne from whence it was deriued The forfeture of lands in fée simple 27 Besides the forfeitures aforesaide 30. H. 6. 5. euery person that is attainted of high treason petit treason or felonie shall also forfeit his lands in fée simple which he hath in his owne right in vse or possession sauing that the attainder of treason by force of the Statute of Anno 5. El. 1. St. 5. El. 1. ordained against the maintaining of the authoritie of the Bishops and Sea of Rome shall not extend to make any corruption of bloud the disheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other than the offendor or offendors during his or their naturall liues onely And sauing that the attainder of treason by force of the Statute of Anno 5. Eliz. 11. St. 5. El. 11 prouided against the clipping washing filing or rounding of money maketh no corruption of bloud in the heire or forfeiture of dower in the wife And sauing that the attainder of treason by force of the Statute established Anno 18. El. 1. against impairing diminishing falsifying skaling St. 18. El. 1 or lightning of money maketh no corruption of bloud nor the wife to loose her dower for he that is attainted of that treason shall suffer death and forfeit all his goods and chattels to the King and all his lands during his life onely And likewise sauing that the attainder of felonie by force of the Statute made Anno 1. Iac. 12. against coniuration witchcraft enchantment St. 1. Iac. 12 charme and sorcerie maketh no corruption of bloud nor the forfeiture of the heires or successors inheritance of any land nor of the wiues title of dower And further sauing that the attainder of felonie by force of the Statute prouided Anno 1. M. 12. against vnlawfull assemblies St. 1. M. 12 maketh no corruption of bloud And moreouer sauing that the attainder of felonie by force of the Statute ordained Anno 5. El. 14. against the forging of Euidences St. 5. El. 14. and writings maketh no corruption of bloud nor forfeiture of land or dower And furthermore sauing that the attainder of felonie by force of the Statute of Anno 31. Eliz. 4. St. 31. El. 4 prouided against the imbeseling of the Quéenes ordnance armour or artillery maketh the offendor to forfeit no lands tenements or hereditaments any longer than during his life St. 4. Iac. 1. S. Triall by the country 10. Co. li. 7. 34 S. Br. 56. no corruption of bloud nor the wife to forfeit her dower And the same lawe is if an Englishman doe commit any felonie in Scotland And if a man haue an annuitie to him and his heires The forfeture of an annuity and he doe commit high treason and is attainted thereof he shall forfeit to the King the same annuitie by force of the before recited Statute of Anno 26. H. 8. 13. for that the same annuitie is an inheritance 28 He that is attainted of high treason petit treason or felonie Forfeiting of a title to land shall also forfeit such lands whereof he hath neither possession reuersion or remainder but onely a title or right or cause of action As if a man be disseised of lands and then the disseisée committeth high treason Co. l. 3. 10 after an office found thereof the king may seise those lands as forfeited and escheated vnto him in respect of the same persons attainder of treason And if the disseisée be attainted of petit treason or felonie the Lord of the Fée of whom the same lands be holden may enter into the same lands as escheated vnto him in respect o◠the attainder of his lawfull tenant But the Lord cannot haue a writ or escheat or other action to recouer the same land because his tenant died not or was not seized thereof but his onely remedie is to enter 6. H. 7. 9 And if a man make a lease for the terme of life of his land and after committeth felony and then the tenant for the terme of life dieth the Lord may enter but cannot haue a writ of escheat 29 As he that is attainted of treason or felony shal forfeit his lands Forfeiting of euidence so shal the Lord to whom those lands be forfeited 49. H. 6. 14 haue the euidēce of the same lands as escheated or forfeited vnto him to maintaine his title in the same lands escheated and to prooue how his late tenant came by and held the same lands St. 9. H. 3. 29 30 Though it is ordained by the statute of Magna Charta That iustice shall not be sold deferred or denied to no man neither shall any man be condemned but by lawfull triall and that it be further established by the statute of Anno 5. Edw. 3. St. 5. E. 3. 9 That no man shal be attached nor foreiudged of life lands or goods against the forme of the great Charter and the Law of the Realme So that the Law of the Realme doth allow to euery man that is an offendor his answere and lawfull triall be his crime supposed to be neuer so great and the proofe thereof neuer so manifest But if a man that is arrested of Treason or Felony or being vehemently suspected to haue committed Treason or Felony is attempted to be arrested be so wilfull stubborne or rebellious Forfeiture without at-attainder that he will
not yéeld to be iustified and tried by the Law but will either kill himselfe or giue cause to other men to slay him Fi. Cor. 289 290 312. S. Br. 5. for resisting and not submitting his obedience to the Law then he shal forfeit his goods so that this offence be found and presented by twelue men before the Coroner or some Iustices after his death for in this case the default is in the offendor and not in the Law that he came not to lawfull triall of his offence for the law requireth no more but that the supposed offendor shal be safely kept sub custodia legis by imprisonment or maineprise vntill it be tried whether he be an offendor or not But though the person thus slaine shall for his disobedience forfeit his goods béeing not attainted either of treason or felonie yet in the like case he shall not forfeit his lands if hee bee slaine in arresting or after arrest or otherwise die before he be attainted St. 34. E. 3. 12. as it appeareth by the Stat. of an̄ 34. Ed. 3. 12. which hath established That for forfeitures of dead persons not attainted nor adiudged in their liues their heires or land-tenants shall not be impeached or challenged nor of any other forfeiture except the forfeitures in old time adiudged after the death of the persons by presentment in Eyre or in the Kings bench or of felons of themselues or others And yet some doe affirme if a man doe leuie warre or open rebellion against the King or is assistant to his enemies in the field and then is slaine in battell he shall forfeit his lands goods And others doe adde thereunto that the same his Treason and manner of death must also after his death be found by a Iurie super visum corporis Co. li. 4. 57 Pl. Com. 262. 263. before the chiefe Iustice of England being the soueraigne Coroner of the realm and he must returne it into the Kings Bench and make a Record therof and then that person shall forfeit his lands and goods And vpon those words of the sayd Statute of 34. Ed. 3. viz. Except the forfeitures in old time adiudged after the death of the persons by presentment in Eire or in the Kings Bench or c. some doe inferre that if a presentment in Eire or in the Kings Bench be made of such an open rebellion and battell thereupon foughten and of those that manifestly shewing themselues to bée open enemies or rebels to the King were slaine therein that by the words of the same Statute they shall forfeit their lands But if a man bée arrested for counterfeiting the K. great or priuie Seale for forging of his money or for a priuy conspiracie of the death of the King or c. and is slaine in resisting the said arrest or for a rescous attempted before or after the sayd arrest hee shall forfeit his goods but not his lands And if he bée arrested for any of the sayd offences and committed to prison for the same and after doth dye in prison before he bee attainted of any of the sayd offences he shall neither forfeit lands nor goods though he be taken with the manoure viz. found hand hauing and backe bearing for though it is a mischiefe that a man committing high Treason shall forfeit neither life lands or goods yet the law doth rather beare with that mischiefe than to suffer such an inconuenience that a man onely accused or but only a supposed offendor should bée attainted and forfeit his lands and goods where being preuented by death viz. by the hand of God hee cannot come to answer and defend himselfe and by that meanes cannot bée condemned by such lawfull tryall which is meant and specified in the before rehearsed Statute of Magna charta But for the auoiding of questiō and doubt in the case aforesaid they which haue béene knowne parties to such open and manifest rebellions St. 29. H. 6. 1 St. 12. El. 16 St. 29. El. 1 St. 35. El. 5. St. 3. Iac. 2. haue béen of late yeares attainted by Act of Parliament and their lands and goods giuen as forfeit to the King As it appeareth by the stat of Anno 29. H. 6. 13. El. 29. El. 35. El. 3. Iac. The forf of the yeare day and wast 31 There is another forfeiture besides the losse of life lands annuities Fi. Cor. 310 290. 327. and goods wherewith the law hath deuised to punish those that doe commit petit Treason or Felonie and be attainted thereof which is called in Latine the forfeiture of Diem annum vastum the forfeiture of the yeare day and wast which is executed vpon the houses and lands of the offendor that be holden of any other sauing of the king That is the felons houses and lands shall bée seised into the Kings hands where they shall remaine by the space of a yeare and day and then the houses shall be throwne downe to the ground the trées shall be pulled vp by the roots the medowes shal be ploughed vp and all things which the felon did build or plant shal be cast downe digged vp Fitz. Cor. 358. and supplanted Which punishment was ordained in despight of offendors and to shew to others how much the law doth detest murderers committers of burglarie robberie and other felonies and as much as may be to terrifie and discourage others to attempt or practise the like 32 It appeareth by Bracton that by the common law the King should haue had but onely the wast of a Felons lands viz. the benefit to pull downe his houses root vp his trées plough vp his medowes and such other commodities as he could haue raised by spoyling and wasting of the felons houses trées and lands and that then the land so wasted should haue béene presently deliuered to the Lord of the fée of whom the same lands were holden which wast and spoyle was then made without redemption And after by a composition made betwéene the King and the Lords it was agréed By what means the K. came by the yere day and wast That the King should haue the benefit of the felons lands a yeare and a day to redeeme the spoyle and wast which hée might make of the sayd felons lands And the K. graunt by the great Charter made Anno 9. H. 3. St. 9. H. 4. 3 22. tendeth to the same effect viz. Wee will not hold the lands of those that bée conuict of felonie but a yere and a day and then they shall bée deliuered to the Lords of the fées And so it séemeth that King Henrie the third and King Edward the first did hold themselues satisfied with the yeare and day of the felons lands without taking the wast thereof St. 17. E. 2. 16 But after Anno 17. Ed. 2. the Kings Prerogatiues royall béeing expressed or enacted by Parliament amongst others it is ordayned That the King shall haue all the goods of felons which be
Felon both dwell and therefore vpon a fugam fecit presented before the Coroner 22. As p. 96. the goods ought to be seised by the Shirife and praysed by an Enquest and the appraisement must bée inrolled in the Coroners Roll and the goods shal be deliuered to the towne to answere to the king for them Fi. Cor. 366 and though the goods be not deliuered to the towne yet if the goods were in the Felons possession at the time of his conuiction or flying the towne shall answere for them And some do affirme that the shirife and the Dozeners may seize Felons goods into the kings hands and the shirife shall deliuer those goods to the towne to answere to the king at the comming of the Iustices in Eyre But if neither the Shirife nor the Dozeners doe seize the same goods yet the towne shall answere to the king for them at the comming of the Iustices in Eyre For as soone as a fugam fecit is found before the Coroner Fi. Forf 32 the towne shal be presently charged with the goods of him that did flye away And though it be presented before the Iustices that a Felon was deliuered to the shirife with the manoure and with all his goods yet the towne shal be charged with the said Felons goods though the same was found and presented with intent to ease or discharge the same town And in like sort notwithstanding it doth appeare by the Coroners Roll Fi. Cor. 300 that the goods of a Felon were deliuered to one man of the town yet the king shall leuy those goods of the whole towne But when the shirife doth come to leuy those goods of the town by the shirifes consent they may be leuied of him only who had them in custody Fit Co. 181 One that was indicted of Felony appeared at the Exigent and pleaded and was acquit and his goods being forfeited because he did not come in before the Exigent awarded were praised by the Enquest which acquitted him at forty shillings and the same Enquest found what towne was charged with them which said presentment of the Enquest was inrolled and it was adiudged that the same towne may seize the same Felons goods in what place soeuer they can find them And because the towne where the Felons goods be shall answere for them therefore they which doe take into their possession any of the same Felons goods and other goods which do belong vnto the king as Deodands and such like are to be amerced by the Iustices in Eyre if the same goods be not deliuered vnto them by the towne which hath the charge of them for that the same towne hath the custody of them But by a Statute made Anno 31. Ed. 3. St. 31. E. 3. 3 the towne shal be eased of this charge if they can shew what other person hath detained those goods and that they could neuer haue possession of them the words of which statute be If any man or towne be charged in the Exchequer by the Estreats of the Iustices of the goods of Fugitiues and Felons and he will alledge in discharge of himselfe another that is chargeable he shal be heard and right shal be done And therfore if it be found by office before the Escheator that the goods of a man attainted of Felony be in the custody of such a person in this case a Scire facias shal be awarded vpon the same office against the said person to shew if he hath any thing to say why he should not answer those goods But if it be found by the Enquest which did attaint the Felon before Iustices of Gaole deliuery Iustices of Oier and Determiner or Iustices of Peace that any person doth detaine the goods of a Felon attainted the said Iustices cannot award proces thereupon against the party that doth detaine the same goods but they must send their Estreats into the Exchequer and the officers of the exchequer will award proces against the same party to leuy the same goods And yet if he that is presented to detaine the same goods do find himselfe grieued therewith he cannot haue a Trauerse in the Exchequer to that which is found by the Iury because the court of Exchequer hath not the record before thē neither can he trauerse the same before the Iustices of Gaole deliuerie Iustices of Oyer and Determiner or Iustices of peace for that they cannot award a Supersedeas to the Barons of the Exchequer to surcease their Proces But his onely remedie in this case is to procure a Certiorari to remooue the Record into the Kings Bench and there to tender his trauerse and auerrement and to haue a Supersedeas from thence to the Barons of the Exchequer to surcease their Proces And the same law is if the like thing be found by an Enquest in the Kings Bench after they haue deliuered their Records thereof into the Exchequer And a man which was indicted for the taking of goods of one that was attainted of Treason was put to the answer thereof So that sithence the sayd statute of 31. Edw. 3. others haue béene charged with felons goods as well as townes But the Sherife was alwayes charged with the profits of felons fugitiues lands Fi. Cor. 39◠according to the extent thereof The Sherife charged with felons lands and not any towne And so he was charged with goods cōfiscat as where vpō an indictment of felonie Fitz. Cor. 355. 368. the manoure is brought into the Court and the partie indicted doth disclaime therein by this disclaimer the King shall haue the manoure and the Sherife shall be charged therewith And the same manoure shall be praysed by the Enquest that doth trye the felonie and if it be found by the same Iurie that it was impaired by the Constable or any other who had the same in kéeping the Sherife shal be commaunded to leuie so much in value as it was impaired by the said Constable or other And in some cases the Sherife shall be charged with a felons goods Fitz. Cor. 290. 308. and not the towne where the felon did dwel or where his goods remained but that must be by agréement betwéene the said Sherife and the towne To whom the forf of lands for high treason shal accrue 47 In High treason the King shall haue the forfeiture of the offendors lands of whom soeuer they be holden and that by the common law for the offence committed is not to any subiect but to the Soueraigne gouernour himselfe his Crowne and Realme which is an offence of so high a nature that it cannot be recompenced with all that the offendor hath and then it should bée lesse counteruailed if any other should bée partaker with the King therin And the meane Lords shall receiue no losse thereby for they had nothing in the land but a Seigniorie out of it And if they hold ouer of the King by the like seruices then haue they lost
nothing for that they be discharged of their charge and seruices which they did hold by which was as much as they receiued of the tenant perauaile And if they held of the King by lesse rent than their tenant perauaile held of them they shall haue the surplusage of that which was holden of them of the king by the way of petition Fitz. Assise 124. Fitz. Petition 19. And if the king doe not kéepe the land so escheated vnto him in his hands but will assure it to another hée must reuiue the tenure in the Mesne Lord to hold of them of whom it was holden before the attainder It appeareth by the statute of Praerogatiua Regis cap. 12. That the Kings and whole Court of Parliaments meaning was at that time when it was published and established by Parliament which were the Prerogatiues royall annexed to the Crowne of England by the common law That of such lands as did escheat to the King the seruice of the Lord of the fée should be reserued for the words of the Statute bee these viz. St. 17. Ed. 2. 12. The King shall haue escheat of the lands of Normans to whose sée soeuer they belong Sauing the seruice appertayning to the chiefe Lordes of the same Fée And King Henrie the third gaue the Escheates of Normans landes to bee holden of the chiefe Lordes of the Fee by Seruices and Customs due and accustomed thereunto Some of which Normans dwelling in Normandie at that time had lands in England and were subiects to the King of England and did forsake their obedience to the King of England and became subiects to the K. of Fraunce the King of Englands enemie and therby did forfeit those lands which they had in England by the common law and they did escheat to the king 48 In Petit Treason Who shal haue the forf in petit treason and felony and Felony the king shal not haue the escheat of the offendors land vnlesse it be holden immediatly of him but the king shal haue the profits of the said offendors land by the space of a yeare and a day and the land shall be wasted and destroyed in the houses woods and gardeins and in all things belonging to the same and then it shall bee deliuered to the chiefe Lord of the fée of whom the same land is immediatly holden And yet in some cases the King shall haue the forfeiture of the land of him which doth commit Petit Treason or Felonie though the land be holden of others and not of him St. 17. E. 2. 14. as it appeareth by the Statute of Praerogatiua Regis which hath ordained That the king shall haue the escheates of lands of Archbishops and Bishops fréeholders when such tenants be attainted of Felony committed in time of vacation whilest their temporalties were in the Kings hands to bestow in what sort it shall please him Sauing to such Prelats the seruice that to them is due and accustomed And therefore sauing in the cases aforesaid the mesne Lords of whom the lands be immediatly holden shall haue their escheats of their fréeholders lands that haue committed Petit Treason or Felonie which land after the King hath hath had the yere day and wast thereof they must haue deliuered vnto them out of the kings hands by suing out of a writ S. Br. 39. 49 If any stranger The Lords remedy for lands escheated vnto him or other sauing the King doth intrude into that land whereof the felon attainted was seised at the time of the felony committed the immediat Lord of the fée of whom the same land is holden may enter vpon him and put him out or else he may haue his writ of Escheat against him In the which writ he must rehearse the iudgement giuen against the person attainted viz. if he were attainted by outlawrie to alledge Eo quod praedictus A. feloniam fecit pro qua vtlagatus fuit and if he were attainted by abiuration to say Pro qua regnum nostrum abiurauit and if he were attainted by confession or verdict to say Pro qua suspensus fuit and if hee doe alledge one of those iudgements Fitz. Escheat 14. Fitz. Escheat 8. Fitz. Escheat 6. in the stead of another his writ shall abate And yet he néed not rehearse the manner of the felonie in his writ nor in his count but generally that he committed felonie And though there be error in the iudgement yet the Lord shall haue a writ of Escheat and the tenant shall not falsifie the iudgement by the errour 46. E. 3. 4. 50 Island escheat to the auncestor The heirs remedie for land escheated to his auncestor because his tenant was attainted of felonie and the auncestor dyeth before he doth bring his writ of Escheat or doth enter In this case the heire may haue a writ of Escheat and suppose that the partie attainted did hold of his auncestor Fitz. Escheat 17. 51 If a lease of land be made for the terme of life reseruing to the lessor a rent and the lessor payeth his seruices to the chiefe Lord and then the lessor is attainted of felonie Where the Lord shall haue his writ of Escheat and where he may enter and after the tenant for terme of life dyeth In this case the Lord paramount may haue a writ of escheat of the land for the rent which was reserued vpon the lease doth come in stead of the land and so in the consturction of law he died seised of the land But if no rent had béen reserued the Lord might haue entred into the land as escheated vnto him 6. H. 7. 9. but could not haue recouered it by a writ of Escheat no more than if his tenant being disseised had bin attainted of felony in which case his only remedy is to enter The forme of a 〈◊〉 of Escheat 52 This is the forme of the writ of Escheat Rex vicecomiti B. salutem Praecipe A. quod iuste sine dilatione reddat B. decem acras terrae cum pertinentijs in N. quas C de eò tenuit quae ad ipsum B. reuerti debent tanquam Escaeta sua eò quod praedict ' C. feloniam fecit pro qua suspensus fuit vt dicitur Vel pro qua vtlagatus fuit vt dicitur vel pro qua regnum abiurauit vt dicitur Et nisi c. And though the indictment was executed in other maner than is rehearsed in the writ yet the writ shall not abate Register fo 165. as if he were Decapitatus non suspensus for the execution of the iudgement is not material so that he had such a iudgement for the action is true though the writ be not true The K. remedie for land escheated to him 53 In all cases of felony if the king ought to haue the escheat he must haue an office found for him before he can enter for vntill the office found the king hath but a
that all men may kill him without punishment and specially if he defend himselfe or flie away in such sort that he may be hardly apprehended But if he doe not flie or defend himselfe then he that killeth a man so taken shal answere for him as for any other man for that life and death be in the kings hands vnlesse there be a custome to the contrary as in the Counties of Hereford and Glocester And he shal forfeit the benefit of Law for he which being outlawed will be so bold as to returne without the kings licence shall die without law or further examination in iudgement And he cannot appeale others for he hath lost the benefit of law and carieth with him his iudgement vpon his head he can haue no defence so long as the Outlary standeth in force It is vpright iustice that he shal perish without law and iudgement who refuseth to liue according to the law And he shall forfeit his right and possession of all things that he hath gotten or may get And all bonds obligations homages fealties oathes and other contracts made with him be dissolued which can neuer be reuiued but vpon a new contract though he be restored And he shal forfeit all his tenements and hereditaments from him and his heires and euery action that was due to him before his Outlary though he be after restored by the kings pardon And Outlary of felony and euery other iudgement of felony doth dissolue all the gifts sales of land that he made sithence the time of the felony committed The outlawes goods shal be the kings for he cannot be outlawed in any other place but in the kings Court as in the Country Court or in the Hustings of London ⧠Corruption of Blood 1 BY attainder of Treason or Felony commeth corruption of Blood that is to say that the offendors children cannot be heires to him that is attainted nor to any other auncestor Corruption of blood salued by Parliament only And if the offendor were a Nobleman or a Gentleman before by this attainder he is become ignoble and not onely he himselfe but also all his children hauing respect to the Nobilitie which they had by their birth And this corruption of Blood is so grieuous that it cannot bee salued otherwise then by authoritie of Parliament But if the King will pardon the offendor it will cleanse the corruption of blood of those children which be borne after the pardon and they which be borne after the pardon may inherite the land which their auncestor purchased at the time of the pardon or after but so cannot they which were borne before the pardon And also he that is attainted of Treason or Felony shall not bee heire to his father but his disabilitie shall hinder others to be heire so that during his life the land shall rather escheat to the lord of the fée 27. Ed. 3. 77. Fi. Petit. 20 then discend to another But if he that is attainted doe die without issue of his body during the life of his auncestor then his younger brother sister or cousin shall inherite for if the eldest sonne be hanged Fi. Discēt 6. 26. As p. 2. or doth abiure the Realme for Felony during the fathers life it is no impediment but that the youngest sonne may inherite 29. As p. 11 13. H. 4. 8. Fit Discent 17. And if he which is attainted of Treason or Felony in the life time of his auncestor doe purchase the Kings pardon before the death of his auncestor yet he shall not be heire to his said auncestor but the land shall rather escheat to the lord of the fée But if the eldest sonne be a Clerke conuict in the life of his father and after his father dieth in this case he shall inherite his fathers land because he was not attainted of Felony for by the common Law hée should haue inherited after hée had made his purgation And now by the Statute of Anno 18. Eliz. hée shall bee forthwith enlarged after burning in the hand Fi. Cor. 382 St. 18. Eli. 6. and deliuered out of prison and not committed to the Ordinary to make his purgation and so he is in case as if he had made his purgation Where corruption of blood shall preiudice tenant by the courtesie 2 If a man that hath land in the right of his wife haue issue 13. H. 7. 17 and doth commit Felony for the which he is attainted and the king doth pardon him in this case if his wife doe die before him he shall not be tenant by the courtesie for the corruption of blood of that issue But it is otherwise if he hath issue after the pardon for then he shall be tenant by the courtesie although the issue which he had before the pardon be not inheritable The eldest sonne attainted of felony during his fathers life 3 If a man seised of lands hath issue two sonnes 32. H. 8. Dyer 48. and the eldest is attainted of Felony in the life of his father and is executed for the felony or otherwise dieth during the life of his father and after the father dieth seised of the land the land shal discend to the youngest sonne as heire to his father if the eldest sonne hath no issue then liuing But if the eldest sonne that was attainted hath any issue in life which should haue inherited but for the attainder the land shall escheat to the lord and not discend to the younger brother for that the blood of the eldest brother is corrupted Where an attainder but n◠corruption of blood 4 S. Forfeiture 27 That the attainder of Treason or Felony in certaine cases shal not extend to make any corruption of blood the disinheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other then of the offendor or offendors during his or their naturall liues only ⧠Restitution of stolne goods 1 HAuing written of Robberies and other Felonies and declared how Felons are to be prosecuted by Arrest Appeale Indictment Arraignment Tryall and Iudgement and what they shall forfeit I meane now to shew how true men whose goods were robbed stoln or feloniously taken from them by such Felons shall be restored to their goods againe As it is necessary for the Commonwealth that Felons should be punished least the impunity of some should incourage them and also allure others to commit the like offences so is it fit that they chiefely whose goods were taken from them and therby haue tasted the smart and receiued the losse by the Felons and are more likely to know who they be and where they be then others are should doe their vttermost endeauor to procure those Felons to be apprehended brought to their answers and to haue them punished according to their demerits that is to say he that was robbed What is fresh suit or whose goods were stolne from him ought presently after the
felony committed to pursue the Felon so hastily that if it be possible he may take him with the manoure and thereupon bring his appeale against him Fi. Cor. 379. and conuince him of the Felony And the said spéedy and diligent pursute of his is called Fresh suit which thing being found by a Iury the king ought to make restitution to the appellant of his goods contayned in the appeale which his officer or any other to his vse did seize But if it be not found by a Iury that the owner did make Fresh suit the said owner shall loose his goods and the king shall haue them although the Felon be conuict at the same parties suit For as the Law doth so abhorre Felonies and Felons that it punisheth a Felon with the losse of his life his lands goods and all that he hath so doth it in such sort condemne the concealing wincking at or slacke pursute of a felon that it punisheth a true man with the forfeiture of his goods stolne from him for omitting his duty in making fresh sute after prosecuting and pursuing to death of a knowne Felon If the manoure wherwith the Felon is taken be portable or otherwise may be conueniently done it ought to be brought into the Court before the Iustices and if it be in a chest boxe cloake-bag Fi. Cor. 392. or male the appellant must declare the goods particularly which be in it before it be opened or that he can haue it restored vnto him againe And if the Fresh suit be made by the seruant of him that is robbed and not by the party himselfe Fresh suit by the seruant yet it is sufficient to procure him restitution of his goods And if the Felon which committed a Robbery or other Felony be not taken by the space of a yeare after the Felony committed yet if the party that was robbed or whose goods were stolne do his endeuour to apprehend the Felon and make diligent and speciall inquiry for him and after he is taken 7. H. 4. 43. though not at the suit of the party robbed or c. yet that shal be adiudged a sufficient Fresh suit and vpon his appeale brought and the offendor conuicted he shal haue restitution of his goods robbed or stolne What conuiction shal be sufficient to giue the owner restitution of his goods 2 Though in former times it was not adiudged sufficient for the appellant to conuict the offendor of Felony but he must haue attainted him thereof before he could haue had restitution of his goods and if the Felon were in that case that he could not be attainted at the owners suit he should not haue had restitution of his goods but they should haue bin forfeited to the king Fi. Cor. 319 were the suit neuer so fresh As if the felon being pursued by the party robbed with huy and cry did flie to a Church and made his abiuration H. 8. E. 3. 10. or that the Felon was in prison and died before the owners appeale commenced But now the law is otherwise construed for it is thought to be a great extremity that the party which was robbed should loose his goods when he hath done all that hée could that there was no default in him And therefore it is now agréed Fi. Cor. 379 380. 26. As◠p. 32 Fit Forfeit 15. 8. H. 4. 1. 10. H. 4. 5 that if after the appeale commenced the Felon do die in prison or do breake the prison and flie to a Church and there abiure the Fresh suit shal be inquired of and if it be found the party robbed shall haue restitution of his goods And in like sort if the offendor will stand mute of malice or challenge peremptorily aboue the number that the law doth appoint him or will demaund his clergy in all these cases the Fresh suit shal be enquired of and if it be found the appellant shall be restored to his goods and yet in these cases the Felon is not attainted But because the appellant hath done his indeuor and all that is in him to attaint the Felon it is reason that he shall haue restitution of his goods When the owner shall haue restitution 3 Restitution shal be graunted and made to the owner of his goods stolne 21. Ed. 4. 73. Fit Co. 392 as soone as the Felon shal be attainted or conuicted by his appeale the Fresh suit shal be found though the appellant doth not pray or sue execution of the body of the appellée for the appellant hath prosecuted the suit so farre that hée hath brought the felon to the kings mercy so that the appellant nor any other for him can stay or release the execution but only the king and therefore it is reason that he now should haue restitution of his goods And some do affirme that when the appellant hath so farre prosecuted the appellée 21. Ed. 4. 16. that he is outlawed that the appellant shall haue restitution of his goods without inquirie of the Fresh suit because he hath pursued the suit against the offendor so farre as he can If an appeale be sued against the principall and accessorie and the principall is attainted and the Fresh suit is found 21. E. 4. 16 10. H. 4. 5. the appellant shall haue restitution of his goods without suing against the accessory And though he doe continue his suit against the accessory yet that shall not hinder his restitution for that he hath procured the attainder of the principall Felon and whether the accessorie bée attaint or acquit yet the appellant shall haue restitution of his goods And in like sort if an appeale be sued against two as principals and one of them is attainted and the other is acquited and the Fresh suit is found the appellant shall haue restitution of his goods for that it doth appeare that the appellant was robbed of his goods and had cause to sue for though the appeale be found false in part touching him that is acquit yet that shall not preiudice the appellant séeing that falsehood commeth not of his owne declaration but by the verdict of the Iury. If one man do robbe diuers men whereupon they doe bring their seuerall appeales and the Felon is attainted at the suit of one of them 4. E. 4. 11. and that it is moreouer found that he hath made Fresh suit in this case the residue shall not haue restitution vntill the Felon be found guilty at their seuerall suites and the Fresh suit also seuerally found 4 Before Restitution can be awarded of Felons goods Before whom and by whom inquirie of fresh suit is to be made an enquirie is to bée made of the Fresh suit before the Iustices and not before the Shirife though it be but an Enquest of Office and it is to bee done by the Iury that doth find the defendant in the appeale guilty of the Felony vnlesse it bée in case where the defendant doth confesse
things done in the Countie which belongeth to the Office of the Coroner And also an Appeale shal be entred of Robberie or Larcenie in the presence of the Coroner in the Court of any frée man which hath a franchise of Infang théefe Election of the Coroner Which Coroner shall be chosen into the same Office vpon the death or other auoidance of another by force of the Kings writ directed to the Sherife of that Countie where that Office is void by death or otherwise And the same election shall be in the full County Court by warrant of the Kings writ The tenor of which writ is as followeth 2 Iames by the grace of God c. The writ de Coronator◠eligendo To the Sherife of the Countie of Buckingham Salutation c. Because L. one of our Coroners of the Countie is deceased as we are informed we do commaund thée if it bee so that thou doest cause another Coroner to be chosen in thy full Countie by the assent of the same Countie in the place of the same L. according to the forme of the statute therefore made and prouided Who taking his othe according to the custom shall from thenceforth do and performe all things which doe appertaine to the Office of a Coroner in the Countie aforesayd And cause such a one to bee chosen which best can and will attend that Office How long a Coroner shal continue in his Office When a Coroner is chosen he shall continue in his Office vntill the King hath otherwise determined his pleasure 4. E. 4. 44 or that the King doth dye or that there be another King for he is not changeable euerie yeare as the Sherife and Escheator is And then the Sherife shall giue him an othe That he shall lawfully and without demaunding of any reward make his enquests and inrolments and do all things which do belong to the office of the Coroner 3 And because many meane men and of small discretion were diuers times chosen into the sayd Office of Coroners and for that it is expedient that discréet lawfull and sage men should meddle in the same Office therefore by the Statute o◠Westminst prim̄ made Anno 3. Edw. primi St. 3. E. 1. 10 it was ordained Who shal be Coroners by whom they shal be chosen That all Coroners of Shires shall bée chosen in the full Counties by the Commons of the same Counties of the most méet and worthie people which may bée found in the same Counties to execute the sayd Offices and of the most sage and wise Knights which doe best know can and will attend vnto the same Office and which will lawfully attache and present the Pleas of the Crowne And the same Statute was after rehearsed and confirmed by the Statute of Anno 28. Edw. 3. by which it was ordained St. 28. E. 3. 6 That Coroners of Counties shall bée chosen in the full Counties by the Commons of the same Counties of the most fit and lawfull persons of the same Counties Alwayes sauing to the King and other Lords which ought to make such Coroners their Franchises St. 14. E. 3. 8 But by the Statute of Anno 14. Edw. 3. no Coroner shall bée chosen A Coroner must haue sufficient land if hée haue not sufficient land in fee in the same Countie whereof hée may answer all manner of people And because this Statute is in the negatiue therefore the not satisfying of it is a sufficient cause to remooue a Coroner from his Office And hée is sayd to haue sufficient land if hée hath land in the Countie whereupon hée may liue according to his degrée to execute that Office And whereas the foresayd Statute of 28. Edw. 3. hath ordayned Fi. N. B. 164. That a Coroner shall bée chosen by the Commons of the sayd Counties that is intended by the fréeholders of the same Counties and by none other Whether Coroners ought to be knights 4 The foresayd Statute of Westminst prim̄ St. 3. E. 1. 10 committeth the Office of Coroners to Knights and none others and therefore in former ages it was a cause amongst others to discharge a Coroner of his Office that hée was no Knight But because those words were put into the Statute onely to the intent that the Coroner should haue sufficient within the same Countie for which cause if that be performed the intent of the Statute is obserued Causes to remoue a Coroner 5 And also the same statute doth ordaine That such shall bee chosen Coroners which do know can and will attend vnto the said Office And therefore if any be chosen which do not know cannot or will not attend vnto the same office they shal be remoued and discharged of that office by the K. writ Co. l. 5. 57. wherein the cause of his discharge shall be rehearsed either because he is imployed in other affaires of the K. or that he is sicke of some grieuous and long infirmitie or that he is lame or that he is not méet for that office viz. by force of some clause contained in the said statute of West 1. or that hee hath not sufficient lands within the same Countie or that he hath the palsey Fitz. N.B. 165. N. or that hee is dwelling in the vttermost part of the Shire or that he is chosen Sherife or verderer of a forrest But if any of those causes surmised be false whereby the Coroner is discharged of his Office by false suggestion then he may sue for a commission to be awarded out of the Chauncerie to enquire of the same suggestion And if it be found false and returned so into the Chauncerie then there shall be a Supersedeas awarded out of the Chauncerie to the Sherife that hee shall not remoue the sayd Coroner And if he be remoued that hée shall suffer him to enioy the sayd Office as he did before But it is sometimes vsed and most commendable for him that is chosen Coroner if he perceiue in himselfe any of the foresayd impediments Register fo 177. to purchase a writ out of the Chancerie to discharge him of the said Office 6 And because the sayd Coroner should doe iustice and right to all persons Where a Coroner may take a fee and where not without extortion or exaction St. 3. E. 1. 10 the foresayd statute of West 1. doth further ordaine That Sherifes shall haue counter-rolls with the Coroners as well of Appeales as of Enquests of Attachments and other things which do belong to his Office And no Coroner shall demaund or take any thing for the execution of his Office vpon paine of a grieuous forfeiture to the King Which said Statute was also confirmed by a statute made at Excester St. 14. E. 1. anno 14. Edw. 1. And by the statute made Anno 1. H. 8. it was enacted St. 1. H. 8. 7. That vpon request made to a Coroner to come and
and suffer such pains of death losses of lands goods and cattels as if they had béen conuicted of any treasons felonies robberies or other the said offences done vpon the land without benefit of Clergie or Sanctuarie Prouided alwayes that this Act shall not extend or be preiudiciall to any person or persons for taking of any victuals Taking things vpon necessitie gables ropes anchors or sayles which any such person or persons compelled by necessitie taketh of or in any ship which may conueniently spare the same so the same person or persons pay out of hand for the same victuall gables ropes anchors or sayles mony or mony worth to the value of the thing so taken or doe deliuer for the same a sufficient bill obligatorie to bée payd in forme following viz. if the taking of the same things bée on this side the straits of Marrok then to bée payd within foure monethes and it beyond the said Straits then to be paid within twelue monethes next ensuing the making of the sayd bill And that the makers of the sayd bils well and truely pay the same debt at the day to be limited within the said bills Prouidâ—d alwayes Commissions directed into the fine ports that whensoeuer any such Commission for the punishment of the offences aforesayd or of any of them shal be directed or sent to any place within the iurisdiction of the fiue Ports that then euery such Commission shall bee directed vnto the Lord Warden of the sayd Ports for the time being or to his deputie and vnto thrée or foure such other persons as the Lord Chauncellor for the time béeing shall appoint And that when any Commission shall be directed vnto the fiue Ports for the inquisition and tryall of any of the offences expressed in this Act that euerie such inquisition and tryall to be had by vertue of such Commission shall be made and had by the inhabitants in the said fiue ports or the members therof Any thing in this Act to the contrarie notwithstanding So much of this stat as concerneth the triall of treasons is altered by the stat of Anno 1. 2. P. M. 10. and the same made triable onely by the course of the common law St. 18. E. 3. 2 12 The Iustices of peace of euery county by vertue of the K. commission to them directed and by force of the stat of Anno 18. Ed. 3. be Iudges in felonie Iust of peace Iudges in felonie and haue authoritie to heare and determine felonies the words of which stat be these viz. Two or thrée of the most worthy men of counties shal be assigned kéepers of the peace by the K. commission and at what time need shall bée the same with otherwise and learned in the law shall be appointed by the K. commission to heare and determine felonies and trespasses done against the peace in the same county and to execute punishment reasonably according to law reason and the maner of the fact And the words of the kings commission which doth authorize Iustices of peace to be Iudges of Felonie and to heare and determin felonies amongst others be these viz. Iacobus Dei gratia Angliae The words of the commission of the peace Scotiae Franciae Hiberniae Rex fidei defensor c. Praedilectis A. B. C. D. E. H. c. Salutem Sciatis quod assignauimus vos quoslibet duos vel plures vestrum Quorum aliquem vestrum A. B. C. D. vnum esse volumus Iustitiarios nostros ad pacem nostram in comitatu nostro Buckingham conseruandam ad inquirendum per sacramentum proborum legalium hominum de comitatu praedicto per quos rei veritas melius sciri poterit de omnibus omnimodis felonijs transgressionibus c. ac de omnibus singulis alijs malefactis offensis de quibus Iustitiarij nostri pacis legitimè inquirere possunt aut debent per quoscunque aut qualitercunque in Comitatu praedicto factis siue perpetratis Vel quae in posterum ibidem fieri vel attemptari contigerit c. Et ad omnia singula Felonias c. indictamenta praedicta ceteraque omnia singula praemissa secundum leges statuta Regni nostri Angliae prout in huiusmodi casu fieri consueuit debuit audiendum terminandum And though it doth plainely appeare by the words of the foresayd Commission that the King doth giue authoritie to Iustices of Peace to inquire of heare and determine all manner of Felonies viz. as well of such as bée made Felonies by Statute as of such offences as were Felonies by the Common law yet because there hath béene a scruple and question moued by some that the foresaid Statute of Anno 18. Edw. 3. did meane and was to bee expounded to giue authoritie to Iustices of Peace to inquire of heare and determine those felonies onely which were at the time of the making of that Statute felonies viz. That were felonies by the Common law and not to giue them authoritie to inquire of heare and determine those offences as felonies which were made felonies by seuerall Statutes ordained sithence that time and that the Kings Commission authorised by that Statute did giue them no further authoritie than that Statute meant Therefore not to adde to the law but to satisfie euerie reader and to make that thing more plaine and perspicuous to all men which to some did séeme doubtfull the makers of the stat of anno 8. El. 3. touching the transporting of shéepe and of the stat of anno 25. H. 8. 6. ordained against buggery and of the stat of anno 18. H. 6. 19. established to punish Souldiers that depart from their Captains without licence and of the stat of an 39. El. 4. an 1. Iac. 7. touching dangerous and incorrigible rogues and of the stat prouided an 39. El. 17. against wandering souldiers and mariners and of the stat of an 22. H. 8. 11. established against the cutting downe of powdike and of the stat of an 43. El. 13. enacted against the carrying away of any persons against their wils out of Cumberland Northumberland Westmerland or the Bishopricke of Durham did by speciall words ordaine that the I. of the peace of the counties wherein any of the foresaid seuerall offences were committed should haue authoritie at their generall Quarter Sessions to inquire of heare and determine the said offences And the like authoritie was giuen by the said seuerall stat to the Iust of Assise and Iust of Gaole deliuerie to inquire of heare and determine the said offences in the counties where the same were committed within their seuerall commissions And by the stat of an 1. E. 4. it waâ— ordained That the I. of peace of euery county St. 1. E. 4. 2 shal haue authoritie and power to arraigne and deliuer all person and persons indicted or presented befor the Sherifes Vndersherifes their Clerks Bailifs or Ministers