driuen to sue liuerie Further then let vs see in what cases the kinge shall haue annum diem et vastum and in what not The kinge shall not haue annum diem et vastum of clerks coÌ„uict after verdit because hee forfetes no land Like lawe is it of lands in Gauelkinde where the father is hanged but otherwise it is if he be outlawed or abiured for felonie for there the kinge shal haue the yeare daie wast and this appereth 3. 3. E. 3. in Fitz ti corone P. 332. et Prescription P. 50. E. 3. et 8. E. 2. If the husband be atteinted of felonie the kinge shall haue the yeare daye and wast of the laÌ„ds of the wife and yet in the case the lordes shall not haue theyr eschetes But what then the husbaÌ„d might haue done wast and the wife had had no remedie for the same and by the same reason the kinge maye doe as much and this appeareth 3. 3. E. 3. in Fitz ti corone P. 327. E. 3. And also in Bracton in his second boke And also it shoulde there appeare that the wiefe is driuen to sue anouster le main after the death of her husbande If one be arested for felonie brekes the arest so that in the pursuyt of him he is killed because hee woulde not otherwise be taken 3. E. 3. in Fitz ti Corone P. 312. et 290 et 308. the king in this case shal haue the yere day and wast as it appereth 3. E. 3. If a man coÌ„mit felonie and hathe his charter of pardon yet the king shal haue the yeare day wast and the lordes theyr eschetes this appereth 3. E. 3. for the pardoÌ„ doth not restore him but to the lawe For though the kinge would pardon him with words of restitucion yet his grace could not therby restore him to the laÌ„ds holdeÌ„ of other And note that the king shal haue the yere 3. E. 3. in Fitz ti Corone P. 310. day wast of laÌ„ds in ancieÌ„t demesne if it so be that the tenaÌ„t myght haue sold the said lands against the will of the lord as it appereth 3. E. 3. and that notwtstanding that the sayd lands were alwayes vsed to be surrendred by the rodde to passe by surreÌ„der The words of the statute be further Exceptis hominibus quoruÌ„daÌ„ priuilegiatoruÌ„ indâ— ê‘regeÌ„ 46. E. 3. f. 14. 1. H. 6 fo 12. M. 8. H. 4. f. 1 Corone 31. That is as much to say except such as haue Bona et cattalla felonuÌ„ by the kynges graunte for a man can not prescribe to haue Bona et catalla felonuÌ„ as appereth 46. E. 3. 1. H. 7. 8. H. 4. nor none may haue this prerogatiue of yere day wast but only the kinge although hee would claime it by charter froÌ„ the kinge or otherwise as it appereth 3. E. 3. But when the king is seised of it he may coÌ„mit it ouer as appereth by Bracton in his sayd 2. boke But if the land wherof the kinge should haue the yere day and wast be vnder the yerely value of iii s .iiii. d it is vsed to bee remitted for the smallnesse and simplenesse of the thinge as appereth 3. E. 3. 3. E. 3. in Fitz ti Corone P. 327. for it shoulde cost more the suing of it out of the kinges handes than the thing is worth And note the custoÌ„e of Gloc ' comprised in this statut wherby it should appere that notwithstanding any such custome yet the king should haue annuÌ„ et dieÌ„ but not so of laÌ„ds in Gauelkinde as I haue sayd before ¶ Proces to bee sued after the deathe of the kinges tenaunt in chiefe By a statute made in the 33. yere of the late kinge of most famous memorie H. 8. the 22. chapter it is ordeined and prouided amoÌ„ge other things that no person or persons hauing lands or tenemeÌ„ts aboue the yerely value of fiue poundes shal haue or sue any liuerie before inquisitioÌ„ or office fouÌ„d before theschetour or other commissioner or commissioners by vertue of the kinges writ or commission too bee directed out of the kinges chauÌ„cerie or other courtes hauing authoritie to mak suche writes or commissions for suinge of liueries which writs or commissions shal not passe out of the chancerie nor any other courts but by a warrant or bill too bee assigned and subscribed with the handes and names of the master of the kinges wardes and liueries surueiour of his liueries or the attourne and resceiuor of the court of the wardes and liueries or three twoo or one of them to bee directed deliuered to the chanceller of England or to any other chanceler or officer hauiÌ„g power to awarde such writes And if the lands or tenements wherof any inquisition is to be had by vertue of any such writ or commission excede the yerely value of fiue poundes that then such as sue for such writes and commissions shal pay for the seale and writing therof such fees as hath ben accustomed And if the sayd laÌ„ds tenemeÌ„ts wherof any such inquisicions and offices ar to be found by vertue of any such writ or commission excede not the sayde yerely value of v pounde theÌ„ such as shal sue for such writs or commissions shall paye for the seale of euery of them vi d and for the writinge vi d and not aboue This statut doth not set fourth the name of the writ or coÌ„missioÌ„ that shal bee sued howbeit these words that follow that is to sayr for suinge of liueries do somwhat open the minde of the makers of this statute and declare that their meaninge was of the diem clausit and such other writs or coÌ„missions as serue for that purpose and not of euery writ or coÌ„missioÌ„ for so might an office be found by a wroÌ„g writ or coÌ„missioÌ„ which should want mater or be other wise insufficient to make liueries But learne and enquire if after a good writ or coÌ„missioÌ„ sued fourth the office that is found is not sufficient whether the partie shal haue his liueri or not without suing a melius inquirenduÌ„ or a new office because that some parauenture wil say that the words of the statut be performed that is to wite an office or inquisition is found But to that it may be answered and sayd that that it is no office when it is insufficient at least wise toward the partie that should sue liuerie therupon although it be a good office toward the kinge if any thing therin conteined be for his benefit And learne also if the kinges tenant dye seised of landes in diuerse counties whether by force of this statut he shal cause an iÌ„quisitioÌ„ or office to be fouÌ„d in eueri couÌ„tie where the lands lye for so is it vsed to be done vpoÌ„ al general liueries he that sueth his general liuerie otherwise missueth the same and is an intruder vpon the kiÌ„gs possessioÌ„ howbeit peraueÌ„ture you wil say that
if the laÌ„ds excede the yerely value of .xx. marks he must sue a specyal liuerie not a general therfore it makes no mater for the inquisitioÌ„ or office that the words of the statute wil beare it wel enough if there be but one office fouÌ„d But as to that it may be sayd that the meaning of the statute was not so for the kinge can neuer be fulli eÌ„formed of his title vnlesse ther be an office fouÌ„d in euery shere also by finding of seueral offices one record may be better for the kinge then an other whereof his grace may take auaÌ„tage for the best shal be takeÌ„ for the kinge Thus it appereth by statut how that of landes aboue the yereli value of vli inquisicioÌ„ must be made and an office found after the death of the kinges tenant be fore liuerie can be had and that must be by a writ of dieÌ„ clau sit extremum for that is the proper writ that is to be sued for that purpose if any sute be made within the yeare after the kinges tenants death or a special commission in the nature of the writ of diem clausit For vpon a general coÌ„missioÌ„ to enquire generally of all wards no perticular person can haue liuere And if he tarry till after the yere then he caÌ„not pursue any of these but for his remedie must sue a writ called Mandamus or a commission in nature of that writ and therupon to cause an office to be fouÌ„d and so to haue liuerie But if an office be once found by diem clausit and the heier dieth in the kinges ward his heir must sue Deuenerunt no Mandamus although it be after the yere of the death of him that dyed in ward and so is the rule in the register Sumetymes it happeneth that after deliuerie of the writ or commission and before office found theschetor dyeth or is remoued froÌ„ his office in which case then the proces that is awarded to his successor is a writ called Datur nobis intelligi but if office be fouÌ„d before his death or remouing which office is not returned then shall therbe a certiorari awarded to his executors to returne the same For it is a mater of record as sone as the iurrors haue put their seales vnto it notwtstanding it be not returned And note the thawardig of this writ of diem clausit or special coÌ„missioÌ„ is peremptorie to him the sueth for it For if he lese it or be taken froÌ„ him with force he gettes no moe writs or coÌ„missioÌ„s for the lands in that couÌ„tie and this appereth in the new Natura breuiuÌ„ fo 2â—â— Howbeit in 14. E. 4 it is touched by the waye that in such cases he should haue a new writ H. 14. E. 4. so 5. ideo quere But after office ones fouÌ„d by a dieÌ„ clausit or specyal commissioÌ„ as well the kinge partie therby are bouÌ„d as euery other straÌ„ger for somuch laÌ„des as are comprised within the office and neither the kinge ne that partie nor any other shal haue any moe writs or coÌ„missioÌ„s to enquire any further of these lands except it be in such cases as I shal hereafter recite for so the lawe shoulde neuer haue end but newe heires might be founde euery daye by office which were incoÌ„uenient and the king should not knowe to wheÌ„e to make liuerie this appereth .14 E. 4. and 2. et 4. 14. E. 4. f. 5 2. H. 7. f. 2. 4. 4. H. 7. f. 13. H. 7. But where after office found it is surmised for the kinge that his highnes hath a better title than was found for him by the first office whether the mater surmised may stand with the mater fouÌ„d by the first office or not yea although it be mere coÌ„trariaÌ„t or repugnaÌ„t it is not material But in such cases a new writ or coÌ„missioÌ„ shal be awarded As take the case to bee this By the first office it is found the kinges tenaunt in chiefe dyed seised his heir wtin age where in dede hee dyed without heir so that therby the lands ought to haue escheted to the kinge or that he was tenaÌ„t in taile dyed without issue of his body wherby the lands ought to haue reuerted vntoo the kinge in these cases the court shal awarde a new writ or coÌ„missioÌ„ for the kinge Like law is it where the daughter is fouÌ„d heir by office afterward the sonne is borne or where ther is but one daughter found heire by office where there ought to haue ben two fouÌ„d heires or if by the first office one is fouÌ„d heire of ful age which is not heir in dede but an other is heir which is within age In all these cases ther shal be a new writ or coÌ„missioÌ„ awarded Causa qua supra 14. E. 4. f. 5 4. H. 7. f. 13. as it may appere .14 E 4. et 4. H. 7. 12. R. 2 et 30. li. ass yea and a more stroÌ„ger case as it should appere in the new Natura breuium fo 2â—â— fo 2â—2 et f 295. that is to say where the kinge was to haue no benefit at all more then he had by the first office and yet a newe commission was awarded and therfore the case was there the second brother was founde heir by the first office of ful age now the eldest had a commission being also of full age to finde him heir and thervpon had his liuery So is it where 2. be fouÌ„d daughters and heirs to one maÌ„ of certain laÌ„ds where in dede parcel of the said land was geuen to one of the said 2. daughters in fraÌ„k mariage now she that claimed the frank mariage had a specyall coÌ„mission to enquire of the saÌ„e and yet by that second office the king had no benefit ideo quere For this Natura breuiuÌ„ semeth to impugne the bokes before rehersed And like as he may pray a newe writ or coÌ„mission in the cases aboue rehersed before liuerie had euen so may he do in the like cases after liuere had if the liuerie be a general liuerie therupoÌ„ as sone as the title is found the king shal rescise but not wtout a Scire facias because the statut made at Lincoln hath so prouided as I shall open more fully when I come too that place and that in all these aforesayd cases a new diem clausit may be as wel awarded as a new coÌ„mission as it appereth titulo Trauser in Fitz. pl ' 28. anno 29. li. Asss ¶ What thing shal be in the king without office or seasure what not and where by an office only without any seasure or other proces the kinge shal be in possessioÌ„ and where not and where he shal be in possession without an office but not before a seasure and how the kinge may be eÌ„titled by any other recorde as well as by an office and where a man may enter as well vpon the kynges
of certeine lāds which in deede are my landes and theschelour by force of that fals office takes the profites in this case I maye disturbe hym without trauersinge thoffice And those cases appeare .4 Edwarde .4 fo 24. 13. Edward .4 fo 8. T. 9. H. 6. fo 20. M. 47. E. 3. fo 26. Then further The woordes of the saide statutes of anno 36. bee that if anye came before the Chanceller and shewe his right whereby it may appere by good euidence that hee hathe an auncient righte and good tytle then the chaunceller shall let the saide landes to the partye that tendeth the trauerse yeldinge to the kinge the value if it bee aiudged for the king in maner as hee and the other Chaunceller haue done before him by theire good discretions so that hee to whome it shal be letten finde suretie to doe no waste or destruccion beefore the trauers bee discussed By the woordes of this statute it shoulde appeare that the Chauncellours before this time by theire discrecions hadde vsed to let the landes to the partie to ferme Quare impedit p. 34. and that is true for the kinge vsed so to doe vppon a peticion whiche was made to his highnes by the order of the common law in steede of a trauerse nowe vsed as appeareth 5. Edward 3. Trauers 12. and therefore I thinke his highnes may do so at this day bothe vpon a peticion and a Monstrance de droit although the statute make no mencion thereof for so it was vsed to doe by order of the common lawe as it appeareth by the booke before And of this matter see the booke .3 Henrye .7 Now is this statut amplified and made plainer in thys point by the statute made in the .8 yeare Henrie .8 the .26 chapter whiche will that no landes or tenementes seysed into the kinges handes vppon enquest taken before eschetours or commissioners bee in anye wise graunted or letten to ferme by the Chaunceller or Tresorer of Englande or anye other the kinges officers till the saide enquestes or verdites bee retourned fullye intoo the Chauncerie or theschequer but all that time shall abide in the kinges handes and by a moneth after the saide retourne if it bee not so that hee or they that feele themselues greeued by the saide enquest or that are put out of theire landes and tenementes come into the chauncerie and offer to trauerse the saide enquestes and to take the saide lande or tenementes to ferme whiche if they doe then the saide Chauncellour Tresorer or other officer shal let them haue them to ferme shewinge good euidence prouing theire trauerse to be true accordinge to the forme of the statute of an .36 E. 3. to holde till the issue vppon the saide trauerse taken bee founde and discussed for the kinge or elles for the partie and also fyndynge sufficient suertie too pursue the saide Trauers with effecte and to render to the kinge the yearely value of the tenementes whereof the trauerse shal bee so taken if it bee discussed for the kinge And if anye Letters patentes of anye landes or tenementes bee made to anye other parson to the contrarie then the same to be void after the moneth Hereuppon is to bee noted that the shewinge of the euydēce is onelye rehersed to the lettynge of the landes to ferme not to the trauerse For by this statute hee maye trauerse without shewinge anye euydence but not haue the landes to ferme Also by these Statutes hee is not bounde to noe certeine tyme for takinge of hys trauers but onelye for takinge of the landes to forme for hee maye tende hys trauerse when hee will so hee desire not the ferme of the lands But if hee will haue them to ferme hee must tend his trauers within the moneth as appeareth P. 13. E. 4. fo 8. and nowe by the statute of anno 1. H. 8. ca. 9. hee hath three monethes libertie to doe it Also note the thinges that he must fynde suertie for that is to say to sue with effecte to paye the rent after the trauers bee discussed and to doe no waste or destruccion In this woorde rent is emplyed all the arrerages of the rent that shall encurre meane betwene the takynge of the ferme and the discussinge of the trauerse and yet it is not so expressed Also the lease that is made to hym that tendes the trauerse is not of anye terme certeine but onelye by these woordes Donec discussum fuerit for the woordes of the statute bee so and therefore as soone as the trauerse is founde againste him that tendeth it by and by the lease hee hadde in the landes by force of the Statute is voide as apperethe in .4 Edwarde the .4 folio .29 wythout anye further proces Howbeit forasmuche as the woordes bee to holde till the issue vppon the saide trauers taken bee founde and discussed for the kinge or for the partie I woulde learne if the partye bee nonsute vppon hys trauerse or that the trauerse bee aiudged againste him vppon a demurrer in lawe whether the lese shoulde bee voide or not like as it shal bee vppon the issue founde And it seemes it shal bee by the woordes comprised in the saide statute of anno 36. Edwarde .3 But not by any words comprised in the saide statute of an .8 H. 6. For the wordes bee tanque il soit aiudge and therewih agreeth the booke in 4. H. 6. fo 12. Also note that before this statute of anno .8 H. 6. the kynge did vse to graunte the custodye bothe of the landes and body to anye other to whome hee woulde after office and beefore anye trauers tended and this graunt was good because it was not then restrained by any statute Howbeit vppon the trauers tended a Scire facias shoulde haue beene awarded against the patentee comprehendinge in the same all the trauerse And if he had beene retourned warned and came not his patent had ben voide eo facto as appeareth in the saide booke of .4 Henrye .6 at least wise for the landes and yet there was then no estatute that made them voide quod nota And then by and by they shoulde haue beene letten to ferme to him that hadde tended the trauerse But nowe whether since the makinge of the saide statute of an .8 Henry the .6 fo 17. a Scire facias shal bee awarded against the Patentee vppon a Trauers lerne for the saide statute makes suche letters patentes voide for the graunt of the landes but not so for the bodye and therefore it seemes a Scire facias shal bee still awarded and the graunt also of the saide landes is not voide till after the moneth H. 8 H 6. 17. 5. E. 4. .3 .5 M. 14. E. 4. 1 And nowe by the saide statute of anno .1 Henry .8 not till after three monethes and so it shoulde seeme by the booke of .5 and .14 Edwarde .4 and 8. Henry 6. that a Scire facias shal bee awarded at
seisin can not be deliuered out of him vntill suche time an Ouster le maine bee sued as if the king be seysed by office of the lande of any Idiots or for aÌ„nuÌ„ diem vastuÌ„ of lands of any that is attainted in these cases he that shoulde haue these landes after the kynges title determined muste sue an Ouster le maine otherwise yt is where the kyng is not seised of the land but only entitled to the profites as of the landes of him that is outlawed in a personall action or of clerke conuicte or suche like there nede no Ouster le mayne to be sued as appeareth in .8 E. 2. 4. Trauers 28. E. 3. and .9 H. 6. f. 20. and if the landes whiche is seysed into the kynges handes bee holden ioyntlye bye manye yet euery one of them by hymselfe may sue hys Ouster le maine of his owne parte withoute his companions as appeareth in .2 Assise p. 166. H. 4. Lyuerye THe maner of the suing of a generall liuery doth partly appere in the title of Liuerie in the great abridgemeÌ„t of Iustice Fitsherbert A. 12. H. 4. ti Liuerie p. 4. A. 21. R. 2. ti Liuerie p. 5. Wher it is declared that after the heire that was in the kings warde is come to full age then a writ De etate probanda shal be awarded vnto the shirife of the shiere where the said heire was borne to eÌ„quire of his age in which case it is required by the lawe that euerye one that shall passe in that enquest shal be of the age of .xliij. yeares meaning therby that they euery one of them shoulde be of full age at birth of the childe beecause that suche haue better knowledge and remembraunce then other of lesser age haue and that the heire that is in warde enforme the enquest by certaine signes and tokens of the tyme of his birthe as to say that that yeare there was a great tempeste or a greate plague or suche like which signes so geuen in euidence shal be returned by the shiriue as well as the principall mater But whether it bee requisite to haue xij or a lesse number in the sayde enquest or not learn for soome think that any number from two vpwarde will serue beecause the triall is by proues and see the newe Natura breui um fo 136. wher it appereth that this writ of Etate ê“banda was directed to the eschetour of the countie where hee was borne and not to the shiriue Howebeeit note alwayes that theye wheare the lande is shall neuer enquire of this mater vnlesse the birthe and lande weare bothe in one shiere for theye haue enquired of it allredy that is to say when theye dyd fynde the firste offyce Thus when theye haue founde his age that enqueste shall bee returned into the Chauncerie and from thence shal bee awarded a write to the Lorde Keeper of the priuie seale signifying vnto him that the heire is of full age and vppon that a priuie seal shall bee directed to the Chamberlaine of Englande to receiue his homage whiche beynge receiued the sayde lorde Chamberlaine shall certifie the lorde Chaunceller by write of the receipte thereof and then shall the heire haue his liuerie But it seemes that if the heire were neuer in warde but of full age at death of his auncester and so founde by office that thenne hee shall haue liuerie as is declared vppon that office onelye without suynge anye write of Etate probanda for the writtes of liuerie in thys case make no mention of anye Etate probanda as they doe in the other case but if the heire bee withein age and in the kyngs warde and after when he comes to his ful age other landes descende vnto him whiche the kynge allso seisethe by an enqueste that fyndes the heire of full age yet this not withstandynge hee must now sue an Etate probanda vppon bothe offices as appearethe in M. 13. Henrye the fowerthe And the reason of it is M. 13 H. 4. beecause the fyndynge of hym of full age is but as voide as longe as there is a recorde whiche founde hym within age to the whiche record the kynge mighte cleaue vnto as the best recorde that makethe for hym vntyll suche tyme the contrarie thereof be proued bye the wryte of Etate probanda Howebeeit at this day the statut made Anno. 33. H. 8. hath much abridged the fees that haue bene geuen vpon the sute of a general liuerie namely for liueries to be sued of clere yearely value of v. li. or vnder and that it may be sued without any office to be founde But I do not see that the maner of the sute is in any other point altered or changed by the sayd statute but it remaines as it did before And that statute also geueth men licence to sue a generall liuerie of landes not excedinge the cleare yerelye value of .xx. li. whereby I see no let but that a man may sue his generall liuerie also for landes aboue the yerely value of xx li. as he might haue done before the makynge thereof for this statute is not contrarie to anye lawe that was before in that pointe sauinge that a general lyue uerie vnder the value of .xx. li. can not passe or be sued yf he haue not firste his warrant from the maister of the kynges wardes and liueries surueyours atturneys and generall receiuour or three of them signed and subscribed with their names and hands Thus may you see the maner of the suing forth of a generall liuerie which liuerie may not be sued by parcelles as I haue sayde before but entierlye that is to say of all the landes the kinge is or ought to be seised of in his right that sues the liuerie And therefore if the heyre sue liuery but of parcell of that that is founde by office or yf the auncester we are seised of other landes than are fouÌ„d bye office yf the heire sue his generall lyuerie beefore an offyce thereof founde omittinge them in the liuerye the lyuery is missued T. 12. R. 2.44 E. 3. f. 1â— et 25. 2. H. 7. f. 2. as appereth in .12 R. 2. 44 E. 3. 2. H. 7. and therefore it beehoues the heire beefore hee sue his lyuerye to cause an office to bee foynde in euerye sheere where hys auncester hadde anye landes And this entier lyuerye is intended as well of landes holden of other lordes beinge in the kinges handes as of the landes that are holden of the kinge and therefore if a manne holde of the king in chiefe by knightes seruice and of other lordes in socage and die his heir being a daughter within the age of xiiii yeres in this case when the sayd daughter cometh of the age of xiiii yeres she getteth no liuerie of the lands holden in socage but must tarry till she be of the age of xvi yeres that she may then sue liuerie of the whole as appereth .35 H. 6.
firste chapter Also Britton an other old wryter which wrote hys booke in king Edwarde the first name sayeth des heirs nequedent si ils y eyent ascuns qui auncestre morust seisie de ascun terre tenu de nous en chief des aunciens demeanes de nostre corone volons auer les gardes de touts les terres dōt appent que deiuent descend a ceux heirs come lour heritage ouesque touts les blees en teles terres troues maintefoits de qui fees que les terres sont Britton here not only agreeth with the other but also geueth the king the corne growing vpon the groundes which the kinges tenant holdeth at the tyme of his death A. 21. H. 3. in Fitz. ti Prerogat ' P. 26. P. 25. Also in the great Abridgement of Fitzherbert you shal find in the time of king Henry the thirde written in this manner Nota quod lex angliae et consuetudo eiusdē est quod a quibuscunque aliquis feoffatus fuerit dum tamen a domino Rege aliquo tempore fcoffatus fuerit per tenementum qd ' tenetur per seruic̄ militare quod dn̄s rex habebit custod ' omniū terrar ' et tenemētorū tā de feoffamēto aliorū quā de feoffamento proprio Which text if a man will any thing wrest he may make the kinges prerogatiue more lyberall then is made or declared by this statute or any other the writters before remembred for it extendes to any landes holden of the king by knightes seruice whether they be holden of the king in capite or not but forasmuche as the saide other writers haue written so plainlye in this matter we will stand to them and extende the prerogatiue no further howbeit as I saide all those writters being so longe before the making of this statute doe plainly argue proue that this statute dothe but confirme and declare that that was the commen law before M 15. E 4.12 vnles we woulde doubt of the time of the making thereof as Littleton doth in 15. E. 4. but without doubt it was made in king Edward the secondes time and that plainlye appeareth by the woordes contayned in the third chapter of this prerogatiue which be these Et illa voluntas tempore Regis H. patris Regis E. estimari consueuit c. Which woordes were not written in kinge Edward the first daies for then the woords had bene patris nostri so that as I thinke it is not to bee doubted but that it was written in the time aboue limitted and expressed Then go wee to thexposicion of this first chapiter of prerogatiue The woords be dominus rex habebit custodiam omnium terrarum eorum qui de ipso tenent in capite per seruicium militare These woordes go generally to all the kings tenauntes that is to saye aswell to his tenantes for terme of lyfe as to his tenauntes of estate of enheritaunce if it so be that he that is in the reuercion haue the saide reuercion by discent and be heir vnto the said tenant for terme of life not forcing whether he haue the reuercion by discent from the said tenaunt for terme of life or else from any other ancestour as take the case to be this a man holdeth no landes of the kinge but onely as tenaunt by the curtesie and those landes are holden in chiefe by knightes seruice the saide tenaunt by the curtesie is seased in his demesne as of fee of landes holden of other lordes and dieth the landes holden of other discend vnto him in the reuertion whiche is indede nexte heire vnto the said tenant by the curtesie in this case the king shall not onely haue the wardship of the landes that were holden by the curtesie if the saide heire be wythin age but also the landes holden of other by vertue of thys prerogatiue And if the saide heire were of full age at the tyme of the deathe of the saide tenaunt by the curtesie the king shall haue primer season both of the one lande and of the other as it appeareth in the newe Natura breuiū fo 298. Like lawe is it if a woman be indowed of lands holden in capite and is seased in fee simple of landes holden of other and dieth seased and they discende vnto the heire whiche is in the reuercion in this case the kinge shal haue bothe these landes by vertue of this prerogatiue like as hee shall haue in the other case before 26. li. ass p. 57 and that maye you see in 26. li. ass for in bothe these cases they bee the kinges tenauntes and hold of him by knightes seruice in capite for tenaunt en dower in the kinges cas holdeth not of the heire but onelye of the kinge as it shal appeare more fully hereafter But if he in the reuercion bee not heire of the landes holden of other in the cases aboue remēbred otherwise it is But what if he in the reuercion haue the same reuercion by purchace and not by discent whether shall the king then haue his prerogatiue or not and as to that it shoulde seeme by the newe Natura breuium fo 259. that the kinge shall haue his prerogatiue in that case also for there the remainder was to the heire and to his wife and to the heires of theire two bodyes lawfully begotten and the husbande in the remainder dyd sue liuere howbeit against the law as me semeth ideo quere but if the case in the saide newe Natura breuium had been that landes holden by knightes seruice in capite had beene geuen to one for terme of his lyfe the remainder ouer in fee which parson in the remainder hath issue and dyeth and tenaunt for terme of lyfe holdeth landes of other Lordes and dyeth whiche discende to the issue that is in the remainder there it might be saide that the king shoulde haue prerogatiue in the whole like as he had in the cases before remembred of tenaunt by the curtesie and tenant in dower for like reason will serue in the one case that serueth in the other The woordes of the Statut be further de quibus ips◠tenētes fuerunt seisiti in dominico suo vt de feodo die quo obierunt de quocunque tenuerint These woordes rather apperteigne vntoo the landes holden of other then too the Landes holden of the Kinge in Capite as it shoulde appeare by the cases beefore remembred and then by these woordes the kinges tenaunt in his life tyme must himselfe bee seased either in possession or reuercion of those landes that hee holdeth of a common person that shall dyscende vnto his heire For if hee were neuer seased thereof but they discende vnto his heire from some other auncestor the king shall not haue his prerogatiue in them as appeareth in 15. 15. E. 4. f. 10. E. 4. but whether the kinges tenaunt were seased of them in his owne right or in another bodyes right it maketh no difference
as take the case he were seased of them but in right of his wife and hath issue and dyeth his issue is in the kinges warde for the lande that his father helde in Capite and afterwarde the wife dyeth the issue beynge still in warde the Kynge shall haue Prerogatiue in these landes of the wyfe also because the husband was seased of them in his demeane as of fee the daye of his deathe and so wythin the compasse of this statute And this case may you see in M. 13. H. 4. 6. 13. H. 4. and note that notwithstandinge this statute speaketh but of landes yet seruice are to bee taken by the equitie of the same as it is plainlye proued by the woordes of Diem clausit extremum which saieth Quantum terre tenet de nobis aut de aliis tam in dominico quam in seruicio So that if one holde of the kinges tenaunt by certeine seruices the King shal haue the seruices in warde for they be in nature and place of the lande that is holden and so shall it bee supposed And therefore when the kinge hath those seruices in warde and the tenaunt that holdeth by those seruices diâ—th his heire within age if the saide seruices were knightes seruice the Kinge shall haue warde by reason of wardshippe But yet by that noe prerogatiue in the other landes of the second warde whiche are holden of the other Lordes M. 6. R. 2. in Fitz. ti Gard P. 105. as it may appeare in 6. R. 2. For the kinges tenant was neuer seased of those other landes ne yet of the seruice that they were holden by and so without the compasse of this prerogatiue Like lawe it is where the Kinge hath the temporaltie of a bishop in his custody duringe the tyme the Sea is vacant and one that holdeth of those temporalties by knightes seruice dieth his heir wtin age the king shal haue the wardship of him the reason of it is because the king hath the wardship of the teÌ„poralties by reasoÌ„ wherof this wardship cometh whiche temporalties the kinge hath in warde by the order of the common lawe in lure corone For they bee barronies which can be holden of none other then of the kinge in capite and then by the common lawe I take it he were no better then a common person yet his highnes must haue the wardshippe of them that holde of those temporalties by knightes seruice if they falle duringe the time the saied temporalties be in his hands with such landes as they holde of those temporalties but not with such lands as theye holde of other and than must the heire thereof when he coÌ„meth to his ful age sue a liuere as shalmore plainly appeare when we come to the thirde chapiter of this prerogatiue The wordes of the statute before resited are in dominico suo this woorde demeane is not here taken to bee the verie possession or takyng of the profits for if the kinges tenauÌ„t dye seased but of a reuercion or of a remaynder in landes holden of a common person and duringe the minoritye of his sonne the particuler tenaunte dyethe the kynge this notwithstanding shall haue this lande in warde as he hath the rest as it may appeare 22. H. 6.15 E. 4. 46. E. â— M. 22. H. 6. f 20 M. 15. E. 4. f. 10. P. 46. E. 3. fo 10. So it is if the kinges tenaunt dye seased of an aduowson appendaunt to landes holden of a common person The woordes be further die quo obierunt and therefore if the kinges tenaunt dye seased of Landes holden of a commen persone and a straunger abbatethe yet the heire shal bee in warde and the kyng maye entre and so is it if the heire recouer by assise of nâ—ortdauncestre as it appeareth in the newe Natura breuium fol. 2â—â— T. 12. R. 2. But take the case to bee that the kinges tenaunte dye not seased but is disseised and dyethe whether in this case the kynge maye haue prerogatyue or not and it semethe that hee may for in all suche cases where the heire hath a right of entre the kynge may entre in name of the heire and holde it afterwarde in warde but yf the heire haue but a title of entre or ryghte of accion it seemethe to be otherwise howebeit looke for those maâ—â—ers in the sayde booke of 15. E. 4. 12. H. 7. 18. Edwardi tertii lib. ass P. 18. T. 12. H. 7. fo 17. Where it is adiudged that of landes holden of the kynge in chiefe the kynge as in ryghte of hys warde myghte sease by a Scire facias vppon a tytle of entre And note also that there is somewhat more to bee vnderstanden beare thenne is wrytten or expressed that is to saye that the saide Landes muste discende too the kynges warde for notwythestandynge the kynges tenaunt weare seased in hys demeane as of fee daye of hys deathe in landes holden of a commen persone yet if the same after hys deathe doe not discende to the kynges warde but to an other heire M. 12. E. 4. f. 18. the kynge shall not haue prerogatiue in them as it appearethe in 12. Ed. 4. The woordes of the statut bee also De quocunque tenuerunt Put case the kinges tenaunte is seased of certayne thynges whyche neyther are holden of the kynge nor yet of anye other whether shall the kyng haue them in warde or not as Merket warrâ—n A. 3. H. 7. f. 4 21. H. 6. f. 12. 46. E. 3. f. 10. 15. E. 4. f. 12. Rente Secke or aduowson en grosse and as it should appeare in 46. E. 3. 21. H. 6. the kynge cannot haue them in warde and yet in 15. Ed. 4. soome holde oppinion to the contrarye therefore inquere and learne what the lawe wil in these cases The woordes of the statute bee Per huiusmodi seruicium that is to saye by lyke seruice Bye these woordes the landes that are holden of other muste bee holden allso by knyghtes seruice or els the statute extendes not to them and yet the lawe is taken to the contrarye for yf the lands holden of other bee holden but in socage or free burgage the kynge shal haue prerogatiue in them as it appearethe in P. 24. E. 3. f. 13. T. 9. H. 3. ti Prerogatiue in fits â— 25. 24. E. 3. for this statute is but a confirmacion of the common lawe and therefore shall bee taken by equities and namelye when the lawe was so taken in 9. H. 3 whiche was longe time beefore the makyng of this statut Howebeit Bracton and Britton dothe extende this prerogatiue no further then to landes holden of other by knightes seruice therefore enquire for the cause and reason thereof Bracton li. primo de custod et releuiis Britton f. The woordes bee further Exceptis feodis archiepi cantuar ' c. This exception extendes not to the bodie wherefore the kynge shall holde that in warde
againste al men but it extendes to suche landes as are holden of these persones exempted by this statut Put case then that anie of these persones pourchace a seignorie since the tyme of the makynge of this statute shall the kynge haue hys prerogatiue in the landes holden of that seignorie or not And it is clere he shal notwithstandynge the aforesayde woordes of exception for theye doe not extende but to suche fees as we are theyrs at the time of the makynge of this statut Then further for asmuche as there bee diuers statutes concernynge wardeshyppe made aswell beefore as since the time of kynge Edwarde the seconde let vs see whether this prerogatiue wyl extende to those statutes or not and it seemethe it dothe for asmuche as this prerogatiue hathe beene euer from the beginninge as I haue sayde before And therefore if the kynges tenaunte beeinge seased of landes holden of a common parson makethe a feffement therof by collusion contrarie is the statute of Marlebridge to defraude the lord of the wardshippe and diethe the king hauing his heire in warde this matter founde by office shall sease vpon a Scire facias if the collusion be auerrable or wtout a Scire facias if the collusioÌ„ be apparaunt hold the same in warde by force of this prerogatiue that appeareth in 9. H. 4. So likewise wher the statute made in 4. H. 7. T. 9. H. 4. f. 5 prouidethe that the heire cesty que vse shall bee in warde Put case that the kynges tenaunte in capite before the statute in Anno. 27. H. 8. had made a ferfement of lands which he holdethe of a common perâ—one to the vse of hymselfe his heires and died before that statute in this case the kinge shoulde haue hadde his prerogatiue in the Landes so beynge put in feoffament to an vse euen as if his tenaunt had died seased thereof T. 12. H. 7. fo 17. as it appearethe 12. H 7. Than last of all let vs learne howe the lordes whose fees the kynge hathe in warde by his prerogatiue shal be demeaned and ordered for the rentes to be dewe for their seignories duringe the wardshippe whether they shall leese them as they do the landes 29. lib. ass in fits ti Petic p. 5. P. 24. E. 3 f. â—â— and the new natura breuium fo 179. And it appeareth in the booke of assises in 29. E. 3. that they had them by peticion at the Kynges hands therwith agreeth thoppinion of Hill ' in the .24 yere of kyng E. 3. Learne the reason of these bokes for it should seme to me the lawe to be otherwise because that al mesne seignories are suspended duringe the time the kyng hathe the tenauncye in warde if it bee not per case for the surplusage of a rent seruice whiche the mesne maye sue for to the kynge by waye of peticion and to saye that the heire shal be charged at his full age withe the sayde rentes it weare noe reason for then bothe his lande shoulde bee in warde and yet he charged to pay rent for the same wherefore it semeth that these bokes are against the law And with me agreeth Bracton in his first boke in the chapiter de custodia where he saieth Et cum tali ratione sint aliorum feoda in manu do mini regis pred' ratione alij capitales domini feod ' illorum ni hil poterint exigere de terris et tenÌ„tis illis nec in seruic ' nomi nat ' nec in auxiliis ad filiam maritandam vel filium primoge nit ' militem facieÌ„duÌ„ vel in sectis quaÌ„diu terre fuerunt in manu domini regis sed precipiet ' vic' qd ' hmÌ„odi distringere non permittat Howebeit Bracton in his said booke in the chapiter De releuijs saieth that the heire at his full age shall pay his reliefe to euerie of his lordes notwithstanding he hathe ben in warde quod nota for in al other cases he neuer paiethe reliefe that is to saye where he hathe bene in ward and hee makethe no other reason for it butte this s. quod hoc est speciale in rege propter suum priuilegium and so is the booke in the .24 M. 39. E. 3. in Fits ti Relief P. 1. Britton f. 163. yeare of kynge Edwarde the thyrde and the .39 yeare of the same kynge howebeit Brittons oppinion is that the heire shall paye noe reliefe to the other lordes after hee hathe beene in the kynges warde and commethe to his full age and I cannot fynde that the heire in anye suche case shoulde or doothe paye anye reliefe to the kynge that is to saye where hee hathe beene in warde therefore learn what experience teacheth vs in these cases The seconde chapiter ITem Rex habebit maritagium hered ' infra etateÌ„ in custodia sua existenÌ„ siue terre hered ' eorundem sint ab antiquo de corona siue de eschaetis quae sunt in manu domini Regis siue habuerit maritagium ratione custod ' terrarum dnÌ„orum eorundem hered ' nullo habito respectu ad prior ' feoffamenti licet de alijs tenuerunt Bracton li. 1. ti de herede sockman in cuius custodia esse debe at BrittoÌ„ f. 163 M. 24. E. 3. f. 24. H. 12. H. 4. in fits ti Gard. P. 81. All that is contayned in this Chapiter was the kynges prerogatiue by the order of the common lawe as it maye appeare in the bokes of Bracton and Britton in the places before noted and in a boke in the 24. yeare of kyng Edward the thyrde where it is sayde that no lorde can be more auncienter than the kynge for all was in hym and came from hym at the begynninge And therefore his highnesse muste haue prerogatiue in the bodye of whosoeuer the infaunte holdeth besides bee it that the landes are holden of the kynges highnes as of the auncientnes of his Corone or of hys newe escheates or come vnto hym as warde by reason of wardshippe or that his highnesse doe pourchace the seignorie of hym that is lorde by posterioritie or pourchaseth a manor holden of one of his honors whiche are of his newe eschetes of whiche maner thauncester of thinfaunt helde by posterioritie in all these cases the kynge shall bee preferred to the wardeshippe of the bodye and mariage beefore anye other lorde of whom the auncester also helde them daye of his death by priority of feffement that is to saye more auncient feoffement howe be it in these cases hys highenesse shall not haue wardeshippe in the landes holden of thother lordes beecause his tenaunte helde not of hym in châ—efe but onelye shall haue preferrement in the body and mariage beefore all other Then since the common lawe and statute dothe geue the kinge this prerogatiue let vs see whether his highnesse maye by grauntinge away his seignorie to an other graunt also with the same his prerogatiue to the grauntee that is to
the deathe of his auncester bee not of the age of 35. H. 6. f. 47. T. 45. E. 3. fo 1â— 14. yeares as appearethe 35 H. 6. 45. Edwarde the third and allso in the newe Natura breuium fol. 2â—6 fol. 2â—â— But in euerye of these cases theye to whom the bodye belongeth shall haue an Ouster le main of the landes vna cum exitibus that ys to saye the lordes of whom the land is so holdeÌ„ by knights seruice in th one case and the Prochein amy in the other case But wher the landes bee holden of the kynge in Socage in capite the heire of the age of 14. yeares at the deathe of his auncester there the kyng shal haue primier seisin and the heirÌ„ dryuen to sue lyuerie for there is no persone that can make anye title to the heire or his landes but onelye the kynge and therefore the king must haue his primier seisin the heire driueÌ„ to sue his liuerie by expresse woords of the foresaid statut of Marlebridge so it seemeth also in that case that his highnes shall haue primier seisin in landes holden of other so they be holden but in Socage for the reasoÌ„ aboue remembred Tamen quere The woordes of the statute bee farther de omnibus terris et tenementis de quibus ipsi seisiti fuerunt in dominico suo vt de feodo These wordes may bee conferred and coupled with the firste chapiter of this statute of prerogatiue whiche hath the verye selfe same wordes And therefore looke in what cases noted vppon the firste chapiter the king hath his prerogatiue by reason of wardship In al the same cases shall his highnes haue prerogatiue by reason of primer seisin if the heire weare of full age at the deathe of his auncester Wherfore to reherce theÌ„ here particularly it were but superfluous except it bee in the case onely of collusion geuen by the statute of Marlebridge where the heyre is within age beecause it speaketh nothinge of the heire that is of full age And therefore in that case it seemes the kyng cannot haue lyke benefyte of primier seisin as hee hathe of wardeshippe when the heire is wythein age Howebeeit there is a booke in that pointe lefte at large whiche is 17. E. 3. 7. E. 3. there the case was M. 17. E. 3. f. 63. M. 7. E. 3. in Fits ti Relief p. 11. The tenaunte enfeffed his sonne and heire dyeth before the feffee gaue notice thereof to the lorde Ideo quere The woords of the statut be farther Cuiuscunque etatis heredes ipsorum fuerint To these woordes also shall the firste chapiter of this estatute haue relacion for they plainly declare that if the heire were within age at the deathe of his auncester the kyng shal haue primer seisin and the heire driuen to sue his lyuerie notwithstandinge also the kynge haue had the wardshippe of hym For the wordes be generally spoken and maye be extended aswell where hee was within age at the deathe of his auncester as where hee was of full age And so hathe it beene euer vsed sauinge that where hee hath been in ward hee payethe but one halfe yeares profite for primer seisin and in the other case hee payethe the hole The woordes of the statute bee farther capiendo omnes exitus eorundem terrarum tenementorum donec facta fuerit inquisitio pro ut moris est et ceperit homagium hered ' By these woordes it maye appeare that the kynge after the deathe of hys tenaunte and beefore anye office founde mighte seise the landes and take the profites whiche thinge surelye is true as plainelye is proued by the writte of Diem clausit extremum whiche hath these woords Cape in manum nostram omnia terras tenementa c. donec aliud inde perceperimus per sacrum proborum hominum diligenter inquiras c. So the seiser goethe before the inquisition howebeit since the statut made at Lincolne Anno. 29. E. 1 called statutuÌ„ de Escaetoribus it is not vsed to seise tyll office bee founde and then the kyng to bee aunswered of all the profites since hys tenaunts decease whiche commethe all to one effecte And that statute dothe not restrayne the seiser but that thercheator maye seise at this daye withoute office By the aforesaid statute of Marlebridge cap. 16. it is expounded and playnelye set foorthe of what lands and fees the kynge shall haue primer seisin for these bee the woordes Et hoc intelligatur de terris feodis que ratione seruicij militaris socagij vel seriaÌ„ciae sine iure patronatus in manibus domini regis esse coÌ„sueuerunt By these woordes it maye appeare that he that is warde beecause of wardeshyppe shall sue lyuerye or where one holdethe of the kynges warde by knyghtes seruice or in Socage and dyethe hys heire of full age the king shall haue primer seisin of the landes that are so holden of hys warde and the sayde seconde heire dryuen to doe hys homage or fealtye as the case shall require to the kynge and allso to paye hys reliefe vnto hym and to sue lyuerye of the sayde landes as it appearethe hee dyd in the newe Natura breuium fol. 294. 295. For it is withein the compas of these woordes que ratione seruitij militaris So ys it yf the kynge haue a Byshoppes temporalties in his hands duryng the time that See is vacant and one that holdeth of that temporalties by knyghtes seruice or in Socage dyethe hys heire wythein age in this case after that the kynge hathe hadde the wardeshippe the heire at his full age shal paye primer seisin and sue hys liuerye And so shall he doe yf hee bee of full age at the tyme of the death of hys auncester for the woordes of the statute bee De feodis quae iure patronatus in manibus domini regis esse consueuer ' and therwithe agreethe the newe Natura breuium folio 286. Butte learne yf the kings tenant in chiefe dye hys heire of full age and one that holdethe of the heire beefore hee hathe sued his lyuerie dyethe his heire allso beeynge of full age whether in thys case the kynge shall haue primer seisin of the landes of the seconde heire or noe as hee shoulde haue hadde yf the heire of his tenaunte hadde beene wythein age and in the kynges warde at the time when this seconde heire dyd falle and it seemethe to mee hee shall for the reason made afore Thanne laste of all whether this prerogatiue extende to anye statute made since the tyme of kynge Ed. 2. and it seemes it dothe and that for the reason noted in the first chapiter as the feffees of Cestuy que vse before the statut made in the .27 yere of kyng H. 8. vsed to sue an Ouster le mayn sine exitibus whiche was in nature of a lyuere for the heire of cestuy que vse which had bene inward Item for
19. E. 3. wher the said comittee came in 18. E. 3. fo 38. H. 8. E. 3. in Fitz ti Voucher P. 154. H. 19. E. 3. in Fitz Tit. Aid de Roy. 64. the heir being vouched in their ward showed how they held of the kinges lease praid in aid of the king had it wherat I do not a litle meruel because of this statute of Bigamis which was neuer spokeÌ„ of ne yet remembred in these bokes their iudgemeÌ„ts as it should seme beinge directlie against this statute Howbeit the maner of the lease doth not there certenlye apere that is to saie whether the wardship were granted Durante bene placito or Durante minore etate for that would make a differeÌ„ce as I haue said before Also the boke is 39. 39. E. 3. fo 10 E 3. where in a writ of Dovver brought against the comittee ther was aid graÌ„ted of the king but that semes to be out of the compas of the statute of Bigamis which spekes onelie of theÌ„ the haue it of the kinges graÌ„t so hath not the secoÌ„d Comittee therfore lerne what the law will in these cases But if the wardship be comitted to the wife wtout anie exception or forprise of her dower she by that is coÌ„cluded to claime ani dower during the said wardship as it may apere M. 2. H. 4 â–ª in the said new Natura breuium fo 2â—â— It is also said that where liuerie is made to the heier before the womaÌ„ sue for her dower in the chaÌ„cerie in the said liuerie there is no sauing made for her dower that theÌ„ she must pursue her writ of Dovver against the heir the reson that there made is beecause the king hath made liuerie generally wtout ani reseruacion of Dower to be assigned by his highnes whereunto I aunswer that wheÌ„ liuerie is sued before assignemeÌ„t of dower there is moste comoÌ„lie in the writs of liuerie a sauinge made for her dower if it so be that she were found the kings tenantes wife in thoffice and she beinge so founde if the heyr sue a general liuerye leuing out these wordes Salua dote or retenta dote c. it is a good cause for the kinge to resese the hole for the liuerie is missued in that case and that I learned of iustice Spilman which noted it so in .11 of H. 8. but if she be not found wife in the office the heire may sue his liuerie without anie such sauinge and to saie the the kinge by making such a liuerie should waiue the aduantage of his prerogatife in the dower that semes not to bee trew vnles the said waiuer were by expres wordes wherfore it semes the heir in that case after liuerie is not bound to yeld vnto her dower but her onlie remedie is to sue for the same to the king and that must be fyrst vpon an office as I think finding that she was his tenantes wife Ideo quere and learne whether she may haue dower in any case either in the chancerie or by writ of Dower at the comen lawe against the coÌ„mittee or the heire vnles she be found wife first by office as is aforesaid except it be in cases where the king will refuse this prerogatife And note that like as the kinge hath a prerogatife by this statute to yeld dower to the wife of his tenant so hath his highnes a prerogatife by the comoÌ„ law to withold dower from the wife of his tenant which no comon person hath As put case in a write of Dower the heir be vouched in the kinges warde and the tenaÌ„t showes for his lien the feffement with warranty of the husbande which is father to him that is vouched yet that notwithstaÌ„ding she shall recouer her dower against the tenant and not against the heir because that els the king should lose the wardship of the lands wher the womaÌ„ maie without her losse as well recouer her demaund against the tenaunt as she should against the kinge and yet if the king were a comon person in that case he should lose the wardship of so much as she demaundethe 26. E. 3. fol. 58 â–ª H. 8. E. 3. iÌ„ Fits ti Voucher P. 154. And this boke is .26 E. 3. wher it is said that the kinges comittee of the wardship shall not haue the prerogatife therew t agrees 8. E. 3. And note that like as the king hath prerogatife against the wife that bringeth the writ of Dovver so shall he haue prerogatife against the tenaunt in the saide writt of Dovver for notwithstanding that the tenant in the self saÌ„e case haue iudgemeÌ„ to recouer ouer in value against the heire which is in the kinges ward yet he shal haue no execucion of that recouerie til the land be sued out of the kinges handes Howbeit 27. E. 3. 27. E. 3. fo 87 is contrarie to the said boke of 26. E. 3. ideo quere And learne and enquire whether a womaÌ„ being thus endowed at the haÌ„ds of the feffee of her husband of such lands as he died not sesed of and wherof the king at that time can haue no wardship whether she maye marie or not without the kings license it semes she can not for anie wordes comprised within this statute And it apereth in the boke of Assises 26. E. 3. 26. li. Ass P. 57 that wher a woman was endowed by gardein in chiualrye and afterwards the garden committed treson wherbie the seignorie was forfet to the kinge that after this forfeiture she should hold of the kinge and not of the heir which was in the reuersion in which case then she can not mary without licence as me thinketh TheÌ„ further it is to be sene to what lands the statute dothe extend vnto and to what not It extendes to landes holden in capite wherof any woman claymeth dower as maie apere by the wordes of the saÌ„e statute and not to anie other lands for if the king haue in his custodie byshops temporalties during the tyme the Sea is vacant and one that holdeth of those temporalties by knightes seruice dieth his heir being within age whereby the kinge hath the wardship of his heir and eÌ„doweth his wife in this case she shall make no othe but maie marie without liceÌ„se Like lawe is it wher she is endowed of lands that are holdeÌ„ of him that is the kings highnes ward by reason of a tenure in Capite for in both these cases the land wherof dower is demaunded are not holdeÌ„ of the kinge in cheefe and this doth apere in the newe Natura breuium fo 264. and yet in both those cases she is endowed in the chauncerie but what is that to the purpose for so shall the heire in those cases sue liuerie of those lands and yet thei be neuer the more for the holden in chief but onely vsed for a solempnity becaus thei were in the kings hands once by office which is matter of
facient seruicia dominis feodi per manus primogenitae Nec potest primogenita ea ratione vel occasione a postnatis sororibus homagium vel custodiam vel aliquam aliam subiectioneÌ„ exigere vel habere Quia cum omnes sorores sint quasi vnus heres de vna hereditate si primo genita posset habere homagium aliarum sororum vel custodiam petere tunc esset illa hereditas diuisa ita quod primogenita soror esset simul et semel de vna hereditate domina et heres Here 's auteÌ„ suae partis et domina sororum suarum quod quidem in isto casu fieri non possit cum ipsa primogenita nihil posset petere plus quam aliae sorores nisi capitale mesuagium ratione eineciae Preterea si primogenita huiusmodi homagium a post natis sororibus suis acciperet esset quasi domina earum et habere posset custodiam earum et filiorum suorum et hoc esset quasi committere agnuÌ„ lupo ad deuorandum Et ideo vobis mandamus quod predictas consuetudines quas in regno nostro Anglie habemus in hoc casu vt predictum est in terra nostra Hiberniae proclamari ac firmiter teneri facias et obseruari In cuius rei c. Teste me ipso apud vvest ix die Februarii Anno regni nostri xiiii GlaÌ„uil li. 7. Before the makinge of this statute called statutum Hibernie it appereth by Glanuill which wrott in the tyme of kinge Henry the second that the husband of the eldest daughter should do homage vnto the Lorde for the hole inheritaunce and that the other daughters or theyr husbandes should do their seruice for theyr tenemeÌ„ts vnto the chief lord by the handes of theldest sister or her husband and yet they for the same should not be bound to do anie homage or fealti to the eldest sister or her husbaÌ„d duringe theyr liues ne yet that heires that come of them in the first degre or secoÌ„d degre But the heires in the third degre by the lawe of the Land were bouÌ„d to do homage to paye reliefe for their tenements vnto the heire of the eldest daughter Quod nota And the reason of it after the minde of Bracton which agreeth with Glanuille is this that when issue descendeth of them to the 3. or .4 degre it is not like that issue should faile of their bodies Bract ' li. de homÌ„ capieÌ„d and then may the heires of theldest daughter take homage verie well for it is vnlikely that the eldest daughter or her heires shoulde then haue the same by discent for these be his wordes Quia cum sint heredes tres de herede in heredeÌ„ extunc vix poterin deficere et ideo tunc sequitur homagium absquedaÌ„pno et periculo donatoris For if therwere likelyhode of the discent in this case the takinge of homage should be rather hurtfull then beneficial For by the ancieÌ„t Lawes if one had infeffed an other to holde of him and had taken his homage he could neuer be his heire afterwards but the next vnder the feoffor his heires of the kinred shoulde rather haue it As put case before the statute of Quia emptores the eldest sonne had enfeoffed the middelmost to hold of him and had taken his homage the middlemost dieth without issue the yongest should haue had the land and not the eldest because of the homage that he toke howbeit if there were no yonger sonne ne any other heire then the feoffor might claime the Land againe by eschete and not otherwise for as longe as there were any the feoffor or his heires of whome the Lands were so holden might not haue it And that Bracton sheweth also in his first boke in the title de maritagiiÌ„s reuersis ad donatoreÌ„ ê“ defectu heredis For he hath this text or sainge there quod homagium expellit dominicum et retinebit seruicium quod non potest quis esse dominus et heres so that you may nowe perceiue that this statute of Irelande agreeth with Glanuill sauing that Glanuill dilateth or declares the common law farther then this statute doth Also Bracton saith further in his title of Homage that if the eldest daughter in this case wil preuent the tyme and take homage before she nedeth she by that leseth the benefite of the discent saieth that the reason why the serâ—yce ought to be done by the eldest for them all is because the lord shal not be driuen to take his seruice by parcell mele further saith that although the eldest may not haue homage of her sisters forthwith but must tarry a tyme yet shall they out of hand do fealtie vnto her all the other seruices that are to be done the eldest shal do them ouer whiche is contrarie to Glanuill for he saith the other sisters shall doe neyther homage nor fealtie Howbeit Britton fol. 175. agreeth with Bracton and there setteth forth the manner of the fealtie by the yonger sisters to be done to the elder saith that it is at the eleccion of the lord whether he will take homage the other seruices by the handes of the eldest onely for theÌ„ all or else of euery sister seuerally for her seruice for if hee might not so doe the lord in proces of tyme might happelye lese the wardship of the heires of the other sisters because of the woordes in the write of Ward which are that the ancestours dyed in his homage that would be harde to trye when the homage was euer done vnto him onely by the eldest sister And Bracton in his said title of Homage sayeth Cum quelibet soror de facto acapitauerit dnÌ„o capitali hoc reuocari non poterit a primogenÌ„ vel eius marito sed semê‘ qd ' factum est tenebit quia capitalis dnÌ„s quod ei oblat ' est non recusabit sed siue tenuerint de dnÌ„o Rege siue de alio cuÌ„ homagium factum fuerit siue ante tercium hered ' siue post statim sequentur releuiuÌ„ et alia seruicÌ„ a little before that sayeth si plures sorores de dnÌ„o rege tenuerint in capite tuÌ„c pri mogenit ' missa omnes acapitabunt et homagium facieÌ„t dnÌ„o Regi and therwith agreeth Britton fo 171. And yet fo 198. saieth that theldest only shall do homage vnto the kinge for her selfe her sisters Thus haue you now thexposition of the said statut of Ireland by the olde writers by which said statute the saide writers yt appeareth that this statut of Prerogatiue is but a confirmacion of the common lawe doth only set forth declare what the kings Prerogatiue is wheÌ„ landes holden in chiefe discend to twoe coparceners For in this the king hath a Prerogatiue aboue a comon person aswel for that they shal seuerallye holde of his highnes as for that that his highnes shall make the particion for
whether they be of full age at the death of their auncestour or within age or some of them of ful age some of them within age none of them that be of full age shal haue any liuerie but with a particion that for the kinges benefite because that vpoÌ„ the particion euery one of theÌ„ shal haue for his portioÌ„ some parte of the landes that are holden of the kinge in Capite For if some should haue for their porcion onlye the landes holden of â—ther then the king shoulde lose his prerogatiue in those landes hereafter for euer because that they that haue them when they shal dye hold nothing of the kinge in capite and so might the king be deminished of his auncient rights of the Crowne which were against all naturall equitie Wherefore the lawe was euer they should all holde of the king And that appeareth by the writs of Liuerie in which writes there is a prouiso that euery one of them shall haue in her purparte parcell of the landes that are holden of the king in Capite as you may see in the new Natura breuium fo 2â—â— And this liuery must be sued with a particion or else it is missued H. 16. E. 3. in Fitz. t. Liueri P. 29. it cannot be sued forth vntill such time as all the writes of Diem clausit extremuÌ„ are come into the ChauÌ„cerie returned as appeareth 16. E. 3. And then if all the coperceners be found of full age then a write shall goe out of the Chauncery to the Sherife to extende the landes after the extent retorned a write shal goe to therchetour to make particion and liuerie according to thextent therof made as appeareth in the newe Natura breuium fo 262. But if one of the coperceners be within age and in the kinges warde then the particion may be made in the Chauncery then to haue a write of Liuerie to thexchetour of her parte or else it may be wholly done in the Countrey by thexchetour like as they had bene bothe of full age that is to say shee of full age being there present in her owne person and she that is within age onlye by Prochein amye as it appeareth in the saide newe Natura breuium fo 26â— Whiche write shal bee retourned with the particion and afterwardes enrolled in the Chauncerie And it shoulde seeme that if after the write of extent retourned she that is of full age do praye a write of liuerie with a particion that she shall then neuer after haue a reextent if so be that before it were so highlye extended Like lawe is it if the particion be not egal and she notwithstanding will accept it But in all those cases she that was within age if she haue to litle for her porcion she may haue a write of participatione facienda against her other copercener or a Scire facias in the Chauncerie vppon the recorde of Particion that is there to shew why newe particion or extent shall not be made By which write if they bee warned and come not or come and saye nothing the land shal be receiued into the kinges hands and a newe extent made in the presence of the parties whiche if it be not extended as it shoulde be they may pray a reextent before particion made for after particion the prayer cometh to late And this may ye see in the newe Natura breuium fo 65. and in .2 E. 3. et 2. E. 3. in Fitz. ti LiuÌ„e P. 8. 13. E. 1. eodem ti p. 6. 13 E. 1. but learne whether she may defete the particion by entre wtout suyng any such writes or no because the other are in by matter of record the is to say by liuerie wherunto she is also after a maner party So is it not like the case of a straÌ„ger for a straunger that hath eigne title may enter vppon them after Liuerie notwithstandinge they haue the possession by matter of record á 7. E. 3. f. 36. And it is said by Hill 17. E. 3. that aduowson assigned in Purpartie may be defeated by puttinge debate vppon the presentment without any other Proces And note that sometymes the king is to take a detriment by the liuere with the particion As take the case to be where some of them be within age and in the kinges warde and some of full age and theyr auncestour dyeth seased not only of Landes holden in chiefe but also of Landes holden of other Lordes they of full age haue liuerie with a particion now the kinge leeses the wardwip of as much of the lands that are holden of other as they haue Liuerie of and yet if no particion had bene made the kinge shoulde haue had the Wardshippe of the whole til the heire had come of full age as Mombray affirmeth M. 21. E. 3. 32 21. E. 3. And note also that of thinges entier the kinge shall haue by nonage of one of them the whole and the other that bee of full age gett no parte of it ne yet liuerie therof ne particion as take the case to be this A maner holden of the king in chiefe wherunto aduouson is appendaunt discend vnto three coparceners and one of them is within age and in the Kinges warde the other two that be of full age maye sue theire liuerie for the lande with a particion but not for the aduowson For that shall whollye remaine to the kynge duringe the minoritie of her that is in warde 38. H. 6. f. 10. M. 21. E. 3 fo 34. And this appeareth 38. H. 6. et 21. E. â— And note that if vppon particion made thexchetour retourneth that some haue theire partes deliuered them and some not because they sued not to him for it they that did not sue maye at all tymes in the Chauncerie sue out a writte vntoo Thexchetour to haue the same deliuered vnto them in whiche write there shal bee enclosed a transcripte of the Particion as it appeareth in the saide newe Natura breuiuÌ„ fol. 2â—â— and there it appeereth also fol. 293. that liuerye with a particion was sued for landes holden in Burgage but by likelyhode it was no commen burgage for as it appeareth the heire did his homage for the saide landes And note also that if the Coparcener of full age take the parte of her sister whiche is in the kinges Warde by lease or graunt of the kinge Durante minore etate by this she suspendes the particion For notwithstanding she haue the one moitie deliuered her with the profites of the other moitie yet when her sister commeth to full age both they shal sue a newe lyuerie with a particion as appeareth in the saide newe Natura breuium fol. 2â—2 The sixth chapiter SImulier ante mortem antecessoris sui qui de rege tenet in capite ante annos nubiles maritat ' fuerit tunc rex habebit custodiam corporis illius mulieris vsque ad etatem
quod consentire poterit Et tunc elegat ipsa vtrum maluerit habere virum illum cui premaritat ' fuerit vel alium quem Rex ei obtulerit nullus qui de Rege tenet in Capite per seruicium militare potest alienare maiorem partem terrarum suarum ita quod residuum non sufficiat ad facienduÌ„ seruicium suum fine licencia Regis sed hoc non consueuit intelligi de membris et particulis earundem terrarum This Chapter containeth twoe matters beinge dyuers in nature and therfore I entend to seuer and deuyde the one from the other and the Chapter followinge to adioyne to the latter braunche hereof because they entrete both of one thinge The seuenth chapiter DE Serieantiis alienatis sine licentia regis consueuit rex arentare huiusmodi Seriâ—antias per rationabileÌ„ extentam inde faciendam 13. H. 3. in Fitz. ti Gard p. 147. This statute is but a confirmacion of the common law For it is writen in the .13 yere of king H. 3. in this wise Thomas summonitus est ad respondendum regi quare abduxit Helenam filiam et heredem E. c. T. dicit quod ipse ê‘ assensum E. in vita ipsius E. desponsauit predictam Helenam in facie ecclesie c. et quia predicta Helena est infra etatem et cuÌ„ ad etatem peruenerit potest coÌ„sentire matrimonio vel dissentire ideo remanet predicta Helena in custodia dnÌ„i Regis vsque ad etatem vt consentiat vel dissentiat c. Here it is not set furth nor expressed what is thage in a woman to coÌ„sent to matrimonie and that is all that is to be sought vpoÌ„ this statute for Bracton in his first booke in the latter ende of a chapter which hath this paragrafe s De minoribus qui debent esse sub tutela et Cura dnÌ„orum vel parentum saith quod femina septimo anno etatis sue potest consentire matrimonio et virum sustinere anno duodecimo for he saieth quod femina maius est capax doli quá masculus et quod maturiora sunt vota mulieris quam viri So that by him it appeareth that a Woman maye consent to matrimonie after she is .vii. yeres of age And so I iudge the lawe was at that tyme taken For it appeares in the tyme of kinge E. 1. that a man that helde by knightes seruice maried his heire apparant being vnder age died 13. E. 3. in Fitz. ti Gard p. 138 the lorde claimed the wardship of the bodye an issue was tended against him that at the time of the saide mariage the infant was of thage of seauen yeres and this issue was receiued by the Courte for a good issue to barre the lord of the wardship of the body qd ' nota Howbeit it apperes not by the said booke whether the heire were male or female Wangford saies An. 35. H. 6. fol. 37. that when a woman is .vii. yeares of age her auncestour may then gather aid to marie her which saieng argueth as mee seemeth that shee is then mariageable And also this seemes to make with Bracton Howbeit the lawe is not so taken in these daies For she cannot now consent to matrimonie before thage of .12 yeres This statut spekes onely of the heire female and yet Cheiny saieth in .7 H. 6. M. 7. H. 6. â—â— 30. E. 3. in Fitz. ti Gard p. 156. 128 that the heir male shal be taken wtin the compas of this statute by an equitie because the statute is beneficiall And so it should appere .30 E. 1. where the sonne was maried in the life of his ancestour then being no more then of chage of .v. yeres wheÌ„ the childe came to â—hage of xii yeares thancestour died the court adiudged in this case that the lord should haue the wardship of the body to th entent that if the enfant hereafter ere he passe thage of .14 yeres disagree to the firste mariage the lord may haue the mariage of him And so it may appere by this booke that this statut is but a confirmacion of the common law for euery lorde shal haue like aduauntage in this case as the king shal haue therewith agrees Paston 7. H. M. 7. H. 6. 11 6. adding farther to this that by the order of the comon law before this statut of Prerogatiue if the heire would haue staÌ„d to the first mariage when he or she came to the yeres of conset they should haue paied the double value by this statut they pay nothing therefore the case was there The kings tenant in chief hauing a sonne heir of â—hage of .14 yeres doth mary hym dyeth the king offers the child mariage at the age of .14 yeres whiche he refuseth holdes him selfe to the first mariage adiudged that then fant might so doe that for the same he should neuer pay the double value ne single of his mariage there Babthorp saieth that if the woman had died the heire beinge within the age of consent the kinge shoulde haue hadde the mariage of the childe notwithstandinge that hee was once maried in the life of his auncestour for yt was no mariage but at pleasure and therewith agrees Britton fo 169. Yea although the wife had died after the yeares of consent and before the childe had come to thage of xxi yeres quere of this matter for I am enformed that the lawe is not taken at this daie as the saide booke is in .7 H. 6. ¶ Now to thother branch of the Statute and the chapter next folowing the same It appeareth by Glanuill in the beginning of his seuenth booke that euery freeman hauing land whether he had an heire apparant then lyuing or not or whether the said heire apparant would coÌ„sent to it or not yet might he geue some reasonable porcion of his landes with his daughter or any other woman in mariage or to any man that had don him seruyce or in almes to any religious house or to any other whome he would so the said gifte were made in his health for in extremitie of sicknes hee might not bee suffered so to doe lest it should be thought to be done rather of a rage and furie of the mynde whiche through sicknes for the moste parte commeth to men then of any good discrecion and so might he in his gift excede measure Howbeit suche a gyfte in sicknes was euer good with the consent of the heire or with his confirmacion Againe if he had manye sonnes he could not without the consent of his heire apparant geue any porcion of his enheritance to any of the yonger sonnes for so might he disherit theldest thorough affeccioÌ„ that the fathers lightly beare towardes theire yonger sonne more then towardes thelder But of his purchased lande he might giue the yonger a porcion whether theldest woulde or not And if he had none issue he might geeue
lande within this realm holden by NormaÌ„s which after they begaÌ„ to adhere to the FreÌ„ch king the kings enemy became traytors vnto his highnes they forfaited al their lands by order of the coÌ„moÌ„ law to the king of whoÌ„soeuer they were holdeÌ„ Howbeit in such cases after the forfaiture if the king had geueÌ„ these laÌ„ds to any other he might not haue geuen them to holde of him selfe but onelye of them of whom they weare before holden as this statute plainelye declareth that king Henry the third so did M. 20. â— 3. ti Assi in Fits P. 124. et ê‘ 46. E. 3. ti Peticion P. 19. And likewise in 20. .46 E. 3. it appeareth that if the king do otherwise his patent shall be repelled and made to holde of the lordes of whom the landes weare holden before the treason and that by a peticion of ryghte to be sued vnto the king for the redresse of the same for other remedie haue they none distrayne they may not as appeareth in the newe Natura breuium f. 180. And further it should appeare by the sayde boke of .20 E. 3. that the king ought not to reteyne such land in his owne handes no while but must dispose theÌ„ ouer to holde of them that were lordes thereof at the time of the treason committed Hereby may you gather that this statute in his first braunch is but a confirmacion of the common law and that long time before the makinge hereof kinge H. 3. had this prerogatiue as it dothe manifestlye appeare in the later braunche thereof And also by Bracton in his first boke in the title De custod ' maritagijs dnÌ„orum and likewise in Britton folio 28. The woordes of the statut be further Hoc similiter intelligendum est si aliqua hereditas discendat alicui nato in partibus transmarinis et cuius antecessores fuerunt ad fid eÌ„regis Franciae de tempore regis Iohannis Angliae sicut de baronia Monumete post mortem Iohannis de Monumeta cuius heredes fuerunt de Brittannia vel alibi By this braunch it shoulde appeare that at this time men of Normandy Gascoign Guion Angeo Brittain were inheritable wtin this realm as wel as English men because that they were somtime subiect vnto the king of England and vnder their dominion vntil king Ihons time as is aforesaide and yet after his time those meÌ„ sauynge suche whose landes weare taken awaye for treason weare still inheritable within this realme till the makynge of this statute And in the time of peace beetweene the twooe kinges of Englande and Fraunce theye weare aunswerable within this realme if they had broughte anye action for theire landes and tenementes as it doth plainly appere by Bracton in his fifth boke in the title De exceptione quia alienigenÌ„ for these be his words Est auteÌ„ alia exceptio qÌ„ competit tenenti ex persona petentis propter defectuÌ„ nationis qÌ„ dilatoria est et noÌ„ perimit actioneÌ„ Vt si quis alienigena qui fuer ' ad fideÌ„ regis FraÌ„cie actioneÌ„ instituit versê° aliqueÌ„ qui fuerit ad fidem regis Angliae talis noÌ„ respondeatur saltem donec terre sint communes nec etiam si rex ei coÌ„ces serit specialiter placitare quia sicut Anglicus non auditur in placitando aliquem de terris tenementis in Francia ita non debet alienigena Francigena qui fuerit ad fidem regis Franciae audiri placitando in Anglia Note here that he sayethe that this exception is but dilatorie and not peremptorie whiche proueth that hee shall haue his accion at an other time that is to say in the time of peace And also he sayeth after Donec terre sunt communes which is as much to say vntill suche time as there is peace beetwene Fraunce Inglande Also Bracton in his thirde booke vnder the title quod mulier ostendat warrantum per quem petit dotem sayethe si warrantus fuerit ad fidem regis Franciae excipiatur de warranto remanebit dotis exactio in suspenso imê‘petuum vel ad tempus saltem donec terre fuerint comunes This warrant of dower is the heire of the husbands for by thauÌ„cient law if a woman had brought her writ of dower against any other but the heire he was not bounde to aunswere her dower vntill such time as she had brought foorth her warraunt that is to say the heire In like case after shee is endowed she is not bounde to aunswere to anye other without the heire and if it might appeare that the heir had no righte in the second part then shoulde shee be barred of her accion of dower as it appeareth in the case beefore that hys right is suspended when he is a FrenchmaÌ„ and the .ij. realmes at warre Howebeit it appearethe as I haue sayde before that this exception is not peremptorie but that after the twoe realmes be agayne at peace she shall haue her dower The woordes of this braunche be also in the Copulatyue that is to say that the auncester must be of the allegeaunce of the Frenche king that the heire of the sayd auÌ„cester is born in the part of beyond sea I put case than that the auncestour were of the allegeaunce bothe of th one kynge and the other that is to say the Frenche king and the kyng of Englande whether is this within the compas of this statute For Bracton in his saide v. book vnder the title De exceptione quia alienigena saith Quod suÌ„t aliqui qui sunt ad fidem vtriusque sicut fuit W. comes Marescallus manens in Anglia et Michaell de Seins manens in Francia et alii plures et ita tamen quod si contingat guerra moueri inter Reges remaneat personaliter quilibet eorum cum eo cui fecerit ligeantiaÌ„ Whereby it shoulde appeare that of suche as were in allegeaunce to bothe kinges the kinge shoulde haue no eschetes of their landes For the woords of the statute bee not onlye ad fidem regis Franciae but also et non ad fidem regis Ang. ideo quere And whoe shal bee inheritable at this daie that bee borne in the parties beyonde the sea and who not See the statute thereof made in the .25 yeare of king Edwarde .3 de natis in partibus transmarinis The thirtenth chapiter QVando aliquis qui de rege tenet in Capite in fata decedat et heres eius ingrediatur tenÌ„tum qd ' antecessor suus tenuit de rege die quo obiit antequam fecerit homagium regi et seisinam suam ceperit per regem tunc nullum accrescit ei liberum tenemeÌ„tum Et si obierit seisitus per idem tempus vxor eius noÌ„ habebit dotem de tenemento illo sicut contingit de Matilda filia comitis Hereford vxoris Manusel marescalli qui post mortem wilhelmi Marescalli Anglie fratris sui cepit seisinam
deathe of a man and this presented before the Coroner hee shall forfait all his goodes that hee hadde the daye of that presentment or at anye time since till hee bee acquited of the saide deathe And notwithstandynge that an enquest vppon hys arrainement doth afterwarde acquyte him Forfaiture 32. et 35. Coron 296. 344 and also fynde that hee did not flee yet his goddes remaine still forfait as it appeareth 22. lib. Assise p. 96. et 3. Edwarde the thirde Lyke law is it where one arrayned of felonye beefore iustices is founde not giltye of the felonye Howbeit it is founde that hee withdrewe himselfe for the saide felonye nowe shall hee forfaite his goodes but no profites of landes as hee shall doo in the other case where it is found before the Coroner For when the forfaiture shall haue no further relacion but to the daye of the presentment and not to the daye of the flyenge then when at the same daye hee is acquited of the felonye then is the kynges title gone as to the landes and so consequentlye gone as to the issues And this appeareth 3. Edwarde 3. Coron 344 Also there is an other maner of fleeynge for the whyche a manne shall forfait his goodes and that is where in appeale or enditement of felonye the partye that is appealed or endited will not appeare but suffer the exigent to be awarded against him hee thereby forfaiteth hys gooddes and the profites of hys landes whiche he hadde the daye of thexigent awarded or at anye tyme after And notwythstandinge that hee afterwardes happen to bee acquyted of the sayde felonye yet the forfaiture remaines For when hee tarrieth the awardynge of thexigent it appearethe of recorde that hee hath withdrawen hymselfe and thys you shall fynde in 22. lib. Ass pl. 81. and 41. li. Assise 41. Ass p. 18 Howbeit herein is there heede to bee taken lest there bee errour in the awardynge of the saide Exigent For if there bee hee shall then forfait nothinge as if the exigent bee awarded againste the accessorie beefore it bee awarded against the principall or beefore the principall bee attaynted or if an exigent bee awarded againste one that hathe a charter of pardone for the felony of elder date than is the awardynge of thexigent and hath founde suertye accordynge to the statute and the same retourned into the chancerye before thexigent awarded P 43 E. 3. â—â— 17 For in these cases he shall auoyde the forfaiture vppon the matter shewed Contrarye lawe it is if after the exigent awarded the appelle doe abate for insufficience or for that that hee that is outlawed was emprisoned meane betweene the awardynge of the exigent and the outlawrie pronounced For in that case if he reuerse the vtlarie yet his goodes remain still forfait Forfaiture .31 et .19 Howbeit if he were emprisoned at that time of the exigent awarded otherwise it is this appereth .19 E .3 and .30 H .6 Also it is to bee noted that one maye flee for felonye and yet hee shal forfait nothinge as where one is arrested for suspicion of felonye and escapes yet for thys hee shall not forfait his goodes if hee were not taken with the maner or at the sute of the partie or endited of the same as it appeareth .42 Coron 224. li. Ass Quere if hee bee endited afterwarde whether hee shall then forfait them or not Also an accessorie after the felonye committed shal forfait nothinge vppon a Fugam fecit Otherwise it is of accessories beefore the felonye committed Forfaitur 10 as it appeareth .4 H. 7. But he that withdraweth him selfe but for Petit larcenie shall forfayte his goodes Coron 406 as it appeareth .8 E. 2. tamen quere And note for a generall rule that the towneship where the goodes of felones or fugitiues bee founde shal alwaies aunswere the kinge of them and the shiriue of the issues and profites of the landes and therefore the towneship may seise them for the kinge For it is no plee for them to saye they were not deliuered vnto them 22. Ass p. 81. 11. H. 4. 39 And this appeareth in Fitzherbert in the title of Corone pl. 390. et p. 366. 300. 347. 290. 308. 22. and in the title of forfaiture pl. 32. But at what tyme the goods of a felone or fugitiue shal bee seised it is further to bee seene and howe the attainder shall haue relacion When it is founde by enquest beefore the coroners quod fugam fecit by and by the shiriue shall seise his lands intoo the kynges handes by woorde onelye without taking anye enquest for the same purpose and also shall seise all his goodes into the kinges handes and take an enquest as well of free menne as of villeines to apprise them and cause them prise to be enrolled to the coroners and to deliuer them to the towneship to make aunswere thereof to the kynge And this appereth 22. lib. ass P. 96. And herewith agreeth the statute of Coroners and also Britton fo 4. Where you shall see this matter set fourthe more fully And in .43 M. 43. E. 3. fo 21. it is sayde that the kinges minister may seise the goods of a feloÌ„ before attaiÌ„der if the partie finde suertie then he to leaue them in the custodie of the partie or els in the neighbours custodie For the sayd minister ought not to carrie them awaye with him T. 7. H. 4. fo 41. 7. H. 4. Hull sayeth that yf one bee endited of felonie yet till hee bee attaiÌ„ted his goods shal not be remoued out of his house but in the meane time shal be in his neighbours keapinge and he to be found of the same And in the Register there is a write quod tenÌ„ta et bona taliter capta videantur imbreuientur et saluo custodiantur per balliuum ipsius capti qui se curitatem regi inuenieÌ„t ei respodeÌ„d ' si c. saluis inde ipsi capto et familie sue necessariis quam diu fuerit in prisona And so is Britton fo 17. Howbeit now by the statut made in the first yere of kinge Richarde .3 the thirde ca. it is ordeined that none shall seise the goods of any person arrested or emprisoned before that they be attainted or that the goods bee otherwise forfaited vpoÌ„ peine to pay the double value thereof This statute extendeth not to any other but too such as be in prison For by the statute de proditionibus 25. E. 3. ca. 14. If one bee endited of felonie which is not emprisoned the sheriue at the second Cape shal seise his goods and yet they bee not at that time forfaited And also the statut of R. 3. doth not extend to landes but onely to goodes Then for the relacion as for the goodes it hath no relacion but onely from the daye that the forfaiture is presented or verdit geuen and therfore it is sayd in 33. E. 3. that if he sell
possession as any other By a statute made the .33 yere of the late kinge of famous memorie H. 8. the 20. chapter it is among other things prouided that if any person or persons shal be attainted of hye treson by the course of the comon lawes or statutes of this realme that in euery such case euery suche attainder by the cōmon law shal be of as good strength value force and effect as if it had ben done by authorite of parliament that the kinges maiestye his heires and successors shall haue as much benefit auātage by such attainder as well of vses rights entres cōdicions as possessions reuercions remainders and all other things as if it had ben done and declared by autoritie of parliamēt and shal be demed and a iudged in actuall and reall possessiō of the lands tenemēts hereditamēts vses goods cattals all other things of the offēdors so attaīted which his highnes ought lawfulli to haue and which they so being attainted ought or might lawfulli lose and forfait if the attainder had ben done by authorite of parliamēt without any office or inquisicion to be founde of the same any law statut or vse of the realme to the cōtrarye therof mani wise notwtstādīg This statut maks it clere without questiō that in cases of hye treson the lāds of him that is attainted are in the kinge biand by without any office But for other attainder it remaines as it was at the comō Law and therfore lerne if one which holdeth of the king be attainted of petit treson or felonie whether in this case by thatainder his lands be in the king without office and me semeth by attaīder and death together they should be in the kinge in law howbeit not in dede vntill suche time his highnes seise themby his officer or that an office bee therof foūd for by thattainder the lands are forfaited to the kinge by mater of record and then when the partie dyeth either the frehold must be in suspence or els aiudged in the king in lawe for he that was seised hath corrupted his blood and is dead without heir and therfore his highnes is beecome owner thereof in lawe and a possession in lawe vested in him of the same landes which his highnes at his will and pleasure may make a possessiō in dede as sōe as he wil take vpon him knowledge of the sayd landes and sease them by his officer And therfore the booke is agred 20. E. 4. 20. E. 4. so 10 that if he that is attaynted be seised of auowsōs appendaūt as sōe as the church becometh voide the king may presēt wtout any office which proues that the kinge by thattainder was patron before any office found or els how could his highnes present and I see no differēce betwene lāds auousōs in this case for auouson is not so transitorie toward the kinge but that he mai take the presentment therof at all times whē he will quia nullum tēpus ei occurrit Howbeit lerne what the law will in this case for many mē are of the contrarie opinion And see the boke .4 E. 4. cōcernīg this mater And so note what is sayd of a possession in law 4. E. 4. 21. for as I take it there may be a possession in law in the kinge as well as a possessiō in dede which possession in law is euer without office or any other mater of record as whē the possessiō is cast vpō his highnes by a discēt reuerter remaīder or escheit or in title of his seignorie or prerogatiue as for wardship primer seisī or for the custodie of the tēporalties of a bishop during the time that the see is vacant in all these cases without any office or other mater of record here is a possession in law vested in the kings highnes that is to say for that that doth descēd reuert remain or eschet the freholde is cast vpon him in lawe as it should be vpon a comon person in the like case or els the frehold should be in suspence which may not be of the rest the possession in law of a cattell is in his highnes in right of his seignorie which his highnes at his will and pleasure may make a possession in dede by entre or seasure but not to make it a possession in dede by his graunt because there is a statute made in the 18. yeare of H. 6. ca. 6. to the let therof which prouideth that all letters patents made of lāds tenements before office foūd and returned or within one month after but onely too him that tendethe his trauerse shal bee voyde This statute extdes onely to landes and tenementes therfore of the bodie of his warde his highnes may make a graunt notwithstandinge this statute as me semeth for that is neither lād ne tenemēt also notwithstādinge that this statute doth restraine the graunting of the lāds tenemēts yet the seisin therof remaines and is in the kinge as it was by order of the comon lawe which is as I sayd before in his highnes in lawe although not in dede vntil such time as he hath made a seasyn or an entree by his eschetour or a graunt therof which wayethe both to a seasure and a graunt in such cases where the graunte maye bee goode and not restrained by statute or vntill such time an office therof be found For an office that entitleth the kinge to the possession is sufficient by it selfe without any seiser or entre of the eschetour to make a possession in deede in the kinge if it be so that the possession were vacant when the office was founde But if the possession were not vacāt but an other thā he in whose right the kinge seiseth was tenant therof at the time of the findinge of the office then must the kinge entre or sese by his officer before the possession in deede shal bee iudged in him yea and if his highnes seise not by the space of a yeare and a daye after the findinge of the office then maye be not seise without a Scire facias to bee pursued agaīst him that is tenāt therof 9. H. 7. f. 2. 7 49. E. 3. f. 22. 20. E. 4. f. 10. Estopel 255. Trauers 50. 32. Ass P. 32. 29. Ass P. 30. 21. H. 7 f. 7. P. 21. E. 4 f. 1 Gard. P. 105 And of those maters you may see bokes 9 H. 7. 49. E. 3. 20. et 21. E. 4. 4. E. 2. 10. H. 4. 21. H. 7. 29. et 32. li. ass But heruppon is there a distinction to be made whether that that the king is ētitled vnto by office be a thinge manuell and wherof profit maye bee taken forthwith after the findinge of the office or not For if it bee such a thinge as is not manuel and wherof there is no profite too bee taken forthwith vntill such time it falleth in that case althoughe the king be in possession of the right of
the thing yet is he not in possession of the profit therof vntill such time as his highnes actually by his officer when it falleth taketh and perceiueth the said profit as for example The thing that king is entitled vnto by office is no land but auowson rent or a comon although that the kinge by this office be patron of thauouson or owner of the rent or comon and therby when the benefice becometh voide may present or when the rēt daye cometh may receue the rent or when the comō is to be takē may vse the said comō yet if the office that entitleth his highnes be false and he that was in possession at time of the office take the profite when it falleth before the kinges officer do take it in this case this takinge is no entrusyon vpon the kynges possessions for he was neuer seysed in deede wherefore being driuen to his accion if his highnes bringe his Quare impedit or accion of trespas the defendant maye trauerse the office with him in the said actions keping still his possession and neede not too sue in the chancerie for the trauersing of the same This maye you see a Difference beetwene a thinge that is manuel and a thinge not manuel and what the reason therof should bee learne for as I. suppose the reason of it is no other but as I sayde before that when a straunger is tenant at time of the office findynge the office maketh no possession in deede in the kinge beefore an entrie or a seiser And then when the kinges officer taketh not the profites when it falleth but suffreth him that was in possession to take it then was the kinge neuer seised but he still remaines in possession that was possessed at the time of the finding of the office vntill such time as seiser bee made for the kinge which can not bee done at all times as it maye bee of land but onely at such times as the profit therof is too bee takē that is to saye when it fallethe and that is nowe past for this time seynge it is allredy taken and therfore the kynge in that case is driuen too his action But quere whether his highnes may bee brought in possession in those cases by a clayme or not And these cases maye you seee in the bokes of .17 E. 3. f 10. 21. E. 4. f. 1. 5. E. 4. f. 3. et 4. E. 3. 15. H. 7. f. 24. Quare Impedit P. 33 Like law is it where an office is found which doth not entitle the kinge to the possession by entrie but onely by action as where it is found that the kinges tenant for terme of life or yeres hath done wast or being his tenant in fee simple hath cessed by ii yeres or made a feffemēt by collusiō contrarie to the statut of marlebrige or such like For it is a general rule that in al cases wher a comō person cannot ēter but is driuen to his action there the kinge can not haue the possession but by like action or ells by a Scire facias after office foūd in nature of the actiō for the office in the case entitleth the kinge to no other thinge but onlye to the action as appereth 21. H. 7. f. 1◠21. H. 7. fo 1◠But quere of a feffmēt that is foūd to be made by collusiō cōtrarie to the statute A. 34. et 35. H. 8. ca. 5. for in the case it semes his highnes may enter wtout Scire facias beecause the said statute apointes no action to be sued in the case And note that in al these cases before where the kinge is driuen to his Scire facias or other acciō if the office be false the partie maye trauerse the office with the king keping still his possessiō whether it be in the chancerie or in any other court nede not to sue any ouster le main if it be foūd for him because he was neuer out of possessiō Thē further let vs see in what cases the king can not be ētitled but only by office or other mater of record in what cases he may howbeit not to haue anye possessiō either in dede or in law vntil the time there be a seasure made And as to that note that in all cases where a comō persō can not haue a possessiō neither in dede nor in law wtout an entre there the kinge can not haue it wtout an office or such like mater of record as where the king hath title to enter for a mortmain or for a cōditiō brokē in this case the king can haue no title vntill such time as the sayd mortmain or cōdiciō broken be foūd by office or by some other record as it appereth 2. ◠9 H. 7. 2. H. 7. in Fitz ti proc P. 10. So it is in diuerse other cases concerning the kinges prerogatiue as in the case of Ideotes of lunatikes which haue lāds or tenemēts or when his highnes is to be ētitled for annū diē et vastū of persōs attaīted or for an alienaciō wtout licēce or to sese the tēporalties of a bishop for a contēpt in all those cases his title must be furst foūd by office or otherwise apere of record for these rights his highnes hath only as king But if his highnes haue cause to seise the lāds of his widow that hath maried her self wtout license his highnes maye seise notwtstandinge there be no office foūde of her mariage as it appereth in the new Natura breuiū f. 174 Learne what should be the reason therof more then in the case of alienaciō before Like law hath bene vsed where his highnes is to sese lands of priors aliens within this realme ratione guerre his highnes doth it without any office for in bothe these cases the kinges title is notorious enoughe althoughe it appere not of recorde But yet in those cases his highnes must seise eare he can haue anye interest in the lāds because they bee penal toward the partie and of these cases you shall finde bokes 49. E. 3. f. 17. 21. E. 3. fo 31. 21. H. 7 fo 7. 14. H. 4. fo 37. 22. E. 4. fo 4. 3. et 17. E. 3. fo 1. et 17. Other prerogatiues the kinge hath which extende onely to personal and transitorie thinges ad bona et catalla felonū wreke de mere tresour troue or the profites of landes of clerkes conuict of felonie or of persons outlawed in a personall action to these thinges it semes the kinge is ētitled although there be no office or other mater of record found of them as it should appere 11. H. 4. fo 39. 21. H. 7. fo 7. et 27. li. ass P. 50 And note that if the kinges title appere any way of record Gard. 1. 40. Ass P. 36 it is as good as if it weare found by office Therfore yf the kinges tenāt alien wtout licence which alienacion appereth by fine or other mater of recorde
f. 18. for he that is found heire by the seconde office can not haue liuerie if thenterpleader weare found for him because he is not found heire of all as is before remembred And therefore if one be founde heyre virtu te breuis and an other is founde heire virtute officij in this case they shall not enterpleade beecause hee that is founde heire virtute officij can not haue liuerie yf thenterpleader did passe with him for the nature of enterpleder is to haue 〈◊〉 for him with whom it is founde And note that notwithestandyng an enterpleder is not to trie the righte in the land but onelye the priuitie of bloud yet the issue tryed betwene them shal bee an estoppel afterwarde in an action vsed of the possession of the same auncester by whom theye claime Estoppell P 255. as in Assise of mortdauncester or cosinage as it appeareth in .4 Edwarde the seconde And note that as two or more shall enterplede that clayme as heires euen so shall anye other that clayme not as heires but by soome other tytle if it bee so that theire title affirme the kinges possession as take the case to bee this Land holden in chiefe is alyened to diuerse persons at diuerse tymes and thys founde bye office the kyng seiseth after cometh euery of the alienees praieth to make his fine to be restored now they shal first eÌ„terplede try which of their feffemÌ„ts oughte to take place are any of theÌ„ getteth restitucioÌ„ as appereth in 43. Trauers 25. li. ass So it is if anye of them come into the chauncery wytheout proces confesse thalienacion as it appeareth by the sayde bokes for by the confessioÌ„ the king is entitled against him that confesseth as well as if it had beene founde by office Trauers TRauerse for goods was at the coÌ„moÌ„ law but trauers for lands found by inquisition before theschetor is geueÌ„ by the statut made in the 34. yere of E. 3. ca. 14. which saieth in this wise Item accÌ„ est qÌ„ la ou terres ou tenÌ„ts soÌ„t seisies en la maine le roy ê‘ office del eschetor coÌ„teignoÌ„t qÌ„ le tenaÌ„t le roy ent fist alienacioÌ„ saÌ„s coÌ„ge le roy ouqÌ„ le tenaÌ„t le roy ê‘ seruice de chl'r morust ssiÌ„des terres tenÌ„ts auaÌ„tdits en soÌ„ demene coÌ„e de fee et soÌ„ heire deins age et puis la cause â—â—tifie en la chauÌ„cerie et celuy qui terres soÌ„t seisie veigne en la chaÌ„cerie et voet trauerser loffice qui fuit primes pris ê‘ maÌ„demÌ„t le roy que les dites terres ne soyent my seisables soit a ceo resceu soit le proces mauÌ„des en bank le roy a tryer et oustre faire droit This statut exteÌ„ds only to the offices takeÌ„ virtute breuis aut coÌ„missionis not to offices taken virtute officij And also by this statut though the trauerse were fouÌ„de for the partie yet might he not haue had iudgemeÌ„t til a proce deÌ„do ad iudiciuÌ„ had ben awarded And therfore was ther an other statut made in the 36. yere of the said king the .13 cha the tenor whereof is this Pour les greuouses complaintes queux le roy auÌ„ oye de son people de ses eschetoures de lour male port il voet ordeigne del assent auauntdit que terres seisies en sa maine par cause de garde soyent saluement gardes sauns wast ou destruction Et que leschetoure neyt nulle fee de bois veneson ne pessoun nauter riens mes respoignÌ„ au roy des issues et profits annuels proueignaunts des dits terres sans wast ou destruccioÌ„ faire Et fil face auterment et de ceo soit attaint soit reint a la volunte le roy et reÌ„de al heire ses damages au treble a sa proper suit sibien deins age come de pleine age eyent ses amis tanque il soyt deyns age la suite pur luy respoignants al dit heire de ceo qui serra issint recouere Et auxint dauters seisies en la main le roy par enquest doffice pris deuaunt lefchetor teignÌ„ mesmÌ„ cest ordiuauÌ„ce penance deuers leschetours Et sil eyt nul hoÌ„e qui mette challenge ou claime as terres issint seisies qui Leschetour maunde lenquest en la chancellary deins le mois apres les terres issint seisies Et que briefe luy soyte liuere de certifier la cause de sa seisine en la Chauncellarye illeoques soyt oye sauÌ„s delaye de trauerser loffice ou auterment monstrer son droite illeoques maunde deuaunt le roy affaire finall discussion sauns attender auter maundement Et en cas que ascun veigne deuaunt le chaunceller monstre son droyte per quel demonstraunce per bones euidences de son auncien droyte et bone tytle que le chaunceller per sa bone discretion aduis du counsayle sil semble que il besoygne auoire couÌ„sayle que il lesse et baylle les terres issint en debate al tenaunte rendaunt ent au roye le value si au roy appertient en maner come il et les auters chauncellers deuaunt luy ouÌ„t faits auant ces heurs des lours bons discretions issint que il face suerte que il ne ferra wast ne destruccion tanque il soyt aiudge Et que les dits eschetours preigneÌ„t tielx enquests en les bons vill ' per bons gents de ceo ouertment par endentures affaires enter les dits eschetours et ceux des eÌ„qÌ„sts come auter foits estoit ordeignÌ„ per estatuts Anno. 24. E. 3. Et si nul eschetor face au coÌ„trary de cest ordinaÌ„ce suisdit eit la prison des .ii. ans ouster ceo soit reint a la voluÌ„te le roy By the comon lawe beefore the making of these statutes a man had no other remedy to auoid a false office but onelye his peticion Howbeit in .24 E. 3. 24. E. 3. f 4. wylby saieth that if thoffice had bene found before coÌ„missioners or any other shanne theschetor the party should haue had his trauerse by thorder of the coÌ„mon law Parauenture he may be moued so to say because those statuts geue a trauerse onely to offices beefore eschetors making no meÌ„tion of any offices before any coÌ„missioners Also beefore these statutes if after lâ—uerie or Ouster le maine sued there had beene a newe office found whereby the king had ben entiled to reseise thereuppon a Scire facias according to the statut of Lincoln against the partie that had pursued the liuerie or Ouster le maine to come shew why the land should not be reseised the partie in that Scire facias might haue trauersed the office that was so newly founde as I shal more plainly declare when I come to that place Also Bab. sayd in the schequer chamber before al the Iustices An. 8.
Trauers 47. H. 5. that these statutes that geeue trauerse are only to be vnderstand where the king is entitled to the land but for a time as for wardship alienacioÌ„ wtout liceÌ„s and suche like But if his highnes bee entitled to the fee simple or the freehold there he that is put out by the office shal not haue his trauerse but is put to his peticion Tamen quere for though the first statut be this as Bab. hath sayd yet the second is not but is general therfore may bee extended to al offices what mater soeuer they conteyn Traâ—ers 37. as appereth H. 19 R. 2. wher it was fouÌ„d that one had encroched vpon the kyngs demeines which office in dede was false for that that the thing supposed to be encroched was parcel of his manor that was so preseÌ„ted no part of the kings demesnes in this case the partie being put out of that parcel of grounde by theschetor was receiued to trauerse the office yet thoffice entitled the king to the fee simple Also those statutes seeme not to geue trauerse but to him that is put out of possession by the office But the statut of .8 H. 6. ca. 16. alowethe any trauerse ê“fred by him that feeleth himselfe greued by any such enquest although he be not put out of possession by theschetor And the statut semes all so to allow trauers of an office taken aswell before coÌ„missioners as before the eschetor Howbeit the statut geueth no trauers but onely maketh thereof a rehersal These statuts that geue the trauerse seme to offre it generally to any man that wil desire it or that doth put challenge or claime to the lands wherof he is put out by any office Howbeit the expositioÌ„ hath ben otherwise that is to say that his challenge or claime must be such as the law will admyt allow for euery man can not trauerse that would or that maketh his challenge or claime for these statutes are intended wher the king is entitled by office onely for if his highnes be entitled by an other recorde beside the office and entitled as it were by a double mater of record the partye shal neuer haue his trauerse As take the case to be this a man is attainted of treson by act of parlement or otherwise by verdit and afterwarde it is found by office that the said person attainted was seised day of the treason coÌ„mitted of certaine lands which in dede were neuer his laÌ„ds but mine in thys case if I be put out of my laÌ„d by this office I can not trauers it Causa qua supra and yet I am a straunger to this record 46. E. 3. f. 17. 10. H. 6. f. 15. 4. E. 4. f. 27. as appereth in 46. E 3. 10. H. 6. 4. E. 4. But if therbe noe such recorde of attainder I shal be receiued well ynough to trauers the office aleginge first to enure mee to a trauerse that there is no such recorde of attainder as appeareth in .4 H. 7. Allso he that is founde heire by office shal not trauerse the same office that so findeth hym heire yf that part of thoffice that concernes the tenure in chiefe bee true 4. H. 7. f. 6. althoughe the reste of the office bee false and therefore if the kynges tenaunt dye seised his heire being of full age by a false office the heire is founde within age in this case hee can not trauerse thys office as appearethe T. 5. E. 4. 5. E. 4. f. 4. et 5. And the reason of it is beccause the heire can not salsifie thoffice that hee himselfe is to affyrme by his liuerie whenne hee shall sue it For thoughe hee woulde cause an other office to bee found according to the trouthe of the mater yet it were not to the purpose to help him for the best office shal be takeÌ„ euermore for the king that is to say that that geues his highnesse most auantage the heire driuen to sue his liuerie vpoÌ„ that office onely for seing the king is bound by an office as wel as is the heire it is reason if any be better for him thaÌ„ other that he be bound to that onelie not to the other the lawe presumes the one office to be as true as the other vntil such time a tryall thereof be made which triall cannot be by the heire for hee is bounden as I sayde beefore by the office that is found without any further choise hauing no prerogatiue in such mater and if he shoulde be receaued to his trauerse in this case then vpon the trauerse founde for him he should haue the lands out of the kings hands by an Ouster le mayn without any liuerie suing as lands that the king ought to haue seised which were incoÌ„uenieÌ„t For euery way the king ought to haue seised those lands against any that claimeth to be heire vntil such time as liuere be sued therof Like law it is where the kings tenant dieth seised of land in diuers couÌ„ties his heire being of full age in one couÌ„tie the same heir is founden wtin age in an other countie he is foundeÌ„ of ful age in this case the heire shal not trauerse thoffice that fouÌ„d him within age Causa qua supra for then for the landes in one couÌ„tie he should haue theÌ„ out of the kings hands wtoute any office or liuery suing Trauers 39. And this case appereth in .32 H. 6. But if an office find that my father held his lands of the king in chiefe by knights seruice wherin dede he held not of him in chief in this case I shal be receiued to trauerse this office For if I should sue my liuerie vpon the sone I should be coÌ„cluded euermore after to say but that the lands were holdeÌ„ in chief of the king for the cause I shal be receaued to my trauerse as euery strauÌ„ger shal bee in the like case for if my trauerse be true theÌ„ caÌ„ the king haue no cause to seise those laÌ„ds therfore not like the cases before remeÌ„bred as appereth M. 1 H. 7. Liuery P 10 The words of these statuts be that he whose laÌ„ds be seised shal trauerse or he that putteth challeng or claime to the laÌ„d so seised These words be not so genÌ„aly vnderstaÌ„d as they be spoken for most men vnderstande them that hee will challenge or claime but a terme of yeares onely shal not bee receiued to his trauerse where the kinge is entitled to the freeholde by thoffice as wher it is founde that the kings tenant is seised of certane landes and is dead without heire wherby the laÌ„des ought to escheate to the kynge cometh one and sayethe that hee is tenaunt for terme of yeares of these lands of the demise of a straunger without that that he that is supposed to bee the kinges tenaunt was euer seysed of these landes this trauerse lyeth not in his mouth for he
his daie notwithstandinge the statute of .18 Henry .6 cap .6 whiche ordeines that all letters patentes made before the kings title found by inquisicion retourned into the Chauncerie or other matter of recorde shal bee voide For that statute also extendes but to landes or tenementes no more than the other statutes do so that the graunteâ— of the bodye or of anye other thinge whiche is no lande or tenement is good at this day before any office or inquisition thereof found And it is further to bee noted that this statute of an .18 Henry 6. makes not suche letters patentes good for anye time whiche hee graunted contrarie to the tenure of that statute but they be voide fourthwith And learne and enquire if at this daye within one moneth or .3 monethes after office founde and retourned the master of the kinges wardes and liueries with aduise of one of the counsell of the kinges courte of Wards and liueries made a lease of the wardes landes or of an idiotes landes being in the kinges handes for the time of the kinges interest in the same and after within the tyme appointed by the statute comes a stranger and trauerseth the office whether in this case he shall haue the landes to ferme or not And it seemes that no because this statut that geeues that power to the maister of the kinges Wardes was made long time since the statutes of an .8 or .18 H. 6. that is to say in the .31 yeare of king H .8 whiche statute is generall and no sauing or exception made of thether statutes before And then it is a general rule Quod posteriores leges priori bus contrarias abrogant And some thinkes at this daye for wardes lands or ideots landes there shal bee no lettynge of them to ferme to him that tended the trauers if they were letten before the trauers tended by the maister of the kinges wardes but of other landes it remaines as it was before the making of this statute of a .31 Henry .8 and note that if the kinge seise not for anye Wardshippe but onelye for primer seisin because the heire is of full age if a straunger in this case wil trauerse it is to litle purpose For if the kinge by and by after will make liuerie to the heire the trauerse is become voide as appeareth 1. Henry .7 fo â— for the kinge in that case hathe no cause to reteine the lande but to deliuer the same to him in whoe 's right he seised being able for it and hee that tended the trauers is at no mischiefe for hee may nowe after this liuerie pursue for his remedye against the heire and if it shoulde tarrye in the kings handes for the trauerse sake his highnes shoulde then haue all the profites if the trauers were founde with him for al the time that the saide trauers did depende whereunto hys highnes hath no right but onelye the heire and therefore it seemes there shall bee no trauerse but where the landes is to abyde in the kinges handes for a certeine tyme as for Wardshippe fine for alienacion or suche lyke But if hee that tended the trauerse bee founde heire by office and is to haue liuerie of that lande as well as the other that was first founde heire otherwise it is for the reason made beefore And so of an enterpleder For in that case the kinge is bounde to make the liuerie too him that is tried rightfull heire but not so in the case of a trauerse tended by a straunger whiche claimes not as heire for hee is to haue noe lyuerie but only an ouster le maine by whych ouster le main the kinge deliuereth nothinge but leaues his owne possession as one that hath no right to keepe the possession anye longer And it appeareth sufficientlye that hee hadde no right to keepe it after the tyme the heire that shoulde haue it was of full age Wherefore a straunger in that case cannot trauerse for so twoe that hadde no right by trauersinge together might keepe the thirde that hath right from his possession whiche was neuer the meaninge of the makers of the saide statutes And notwithstanding that this booke 1. H. 7 bee that after the trauerse and before the ferme graunted the liuerie was made yet that makes no difference for whether the ferme were graunted before the lyuerie or after when the trauers is become voide by the liuerie the ferme whiche dependeth vppon the same is also voide as mee seemeth And note also that the saide statute 1. Hen. 8. whiche geeues three monethes for hauinge the landes to ferme makes no mencion of the tresorer of Englande but onelye of the Chaunceller so that for anye thinge that ys to bee letten by force of that statute it must bee done onlye by the Chauncellour and not by the treasorer As it shoulde seeme as well of offices retourned into theschequer as into the Chauncerie and therefore within the moneth after an office retourned into theschequer the tresorer maye let the landes to ferme to him that tendes the trauerse accordinge to the saide statute 8. H. 6. But if it bee to let after the moneth the Chaunceller of Englande must doe it as it should seeme And note also that by a statute made anno 1. H. 8. cap. 11. Any person that sued his liuere in time of king H. 7. vppon anye office that founde hee helde in chiefe where in dede he helde not in chiefe whiche saide offices were found by the procurement of Empson and Dudley in the tyme of the said late kinge maye trauerse thoffice in like maner and forme as he might haue done before the liuerie sued if it be so that he be now seised of the same landes sauing that hee shall not bee restored to the meane issues and profites This statute seemes not to extende to the parties heires that hadde liuerie but onelye to the partie him selfe Quere hoc And note that in the court where thoffice is first retourned into there I shall tende my trauers as if it bee retourned into the Chauncerie then in the Chauncerye and if in the Eschequer then in theschequer as in deede all offices virtute officij are retournable in theschequer onelye and such as bee virtute breuis vel commissionis bee retournable in the Chauncerie And now by the Statute of .33 H. 8. cap. 22. No eschetour maye sitte virtute officij onely to fynde anye office of landes holden of the kinge of the value of v. li. or aboue vppon paine to forfait v. li. Monstrance de droit THe Statute of an .36 E .3 that geeueth a trauerse saithe in this wise Et sil eit nul home qui met challenge ou claime aus terres issint seisies que leschetour maunde lenquest en la chauncellarie deins le mois apres les terres issint seisies et que briefe luy soit liuere de certifier la cause de sa seisin en la Chancellarie et illeoques soit oye sauns delaye de
trauerser loffice ou auterment mre son droit et illeoques maunde deuaunt le roye a faire final discussion sauns attender auter maundement This statute speakes bothe of trauerse and Monstrance de droit disiunctiuely whereby a man may gather that if Monstraunce de droit were not by thorder of the common law as it is saide 13. E. 4. f. 8. that it is yet were it geeuen by this estatute And no booke that beares date before this statut can I find that treates any thing of Monstraunce de droit Wherfore without preiudice to anye mans oppinion mine oppinion is that it is geuen onely by this statute but whether it bee so or not so I doe not greatly force Let vs see what it is in what cases it lieth If the kinge bee entitled by office or other matter of recorde that is trauersable Howbeit there is no cause of trauerse for that the office or recorde is true in this case anye manne that hath right to the possession of the freeholde of this lande whiche in shewinge of his right is able to confesse this office and auoid it shal bee receyued if hee bee putte out of hys possession or greeued thereby to come into the Chauncerie and shewe his saide right which beinge there proued to be true iudgement shal bee geeuen that the kinges handes be amoued from the possession of the saide landes with the meane issues and proftes to be restored vnto the party that sueth the said Monstraunce de droit As for an example it is founde by office that the kinges tenaunt by knightes seruice in chiefe dyed seised of certeine landes whiche are descended to his heir being within age where in dede in his life time I recouered this land against him and suing no execution suffred him to dye seised therof now vpon this office returned into the Chauncerie shall I come shewe my right that is to saye this recouere and auerre that this lande founde by office is the lande that I recouered or parcell thereof which being so proued and tried I shall haue an Ouster le maine Like law it is if the kings tenaunt disseised me of those landes and I made my continuall claime or that I had title to enter for condicion broken into the saide landes in the life of the kinges tenaunt and I entred and after was disseised by him But quere if I did not enter in his life whether now I may bee holpen by a Monstraunce de droit vppon the kinges possession And me thinkes not because I haue noe righte in that case till I enter for vntill that time the right continueth still in hym so that the kinge then hath a right ere I haue a right which ought too bee preferred and take place since it is but for a tyme before myne And for these cases see the booke in .3 H 7. fo 2. But if the king bee entitled by matter of worde not trauersable as if he be entytled by double matter of record in this case I can not haue my Monstraunce de droit no more than I can haue in the like case of Trauerse vnlesse my title be founde by one of the saide recordes As take the case to bee It is founde by office that one suche that holdeth of the kinge disseised mee and then committed a felonye vppon whome I entred after whiche entrie the saide tenaunt was attainted of the felonye in this case I shal haue the lande out of the kings hands by a Monstrance de droit causa qua supra And yet the kinges tytle is here by a record and not trauersable that is to saye thatteinder But what than My tytle is also founde by office and appeareth by matter of recorde M. 3. E. 4. 26 A. 4. H. 7. 6 whych beynge proued true doth clearelye auoide the kyngs possession and that is the reason I shall be receiued in thys case to a Monstraunce de droit as appeareth in .3 Edward 4. And therewith agreeth the booke 4. Henry 7. where kyng Richard the thirde was attainted of Treason by act of Parliament and found by office that he was seised of certeine land cometh one B. and saith that in the saide Parliament it was enacted that an atteinder of treason had against the father of the saide B. shoulde bee auoided and adnulled and hee restored to his landes and that these lands cōprised in the office were in the hands of the said king R. by attainder of his father aiudged that vpon this Monstraunce de droit the party should haue restituciō because his right appered by mater of record Like law is it wher it is found by office that such a one is attainted of felony is seised of such landes which are holden of the king nowe he that hath cause to sue his Monstraunce de droit can not be admitted therunto by reason of these two records Howbeeit if it bee so that there is noe suche attainder in deede then may the party that would sue a Monstraunce de droit saye that there is no suche recorde of attainder which beeinge founde true hee shal be receiued to his Monstraunce de droit as appeareth in the saide booke .4 H. 7. For nowe is there no recorde against him but onelye the office and notwithstandinge that by thoffice thattaindour is founde yet this fyndinge makes nothinge for the kinge if it bee vntrue For the iurie can neuer finde a matter of recorde and if they doe it is to little purpose for the recorde is euer triable by it selfe and if there bee suche a recorde it will appeare thoughe they fynde it not and if there bee none the finding of it is voide This may you see that a Monstrance de droit lyeth sometimes althoughe the kynge bee entytled by double matter of recorde if it so bee that the parties tytle appeare by matter of recorde or else it lyethe not M 14. E. 4. f. 1. 7 And yet Choke Littleton and Nedham helde oppinion in .14 E. 4. that if it bee founde before theschetour that one was tenant in taile of certeine landes holden of the kinge the remaynder to another in fee and that hee in the remainder is outlawed of felonye and that tenaunt in taile is dead without issue where in dede he beinge tenant in taile before the statute De donis condicionalibus after that hee hadde issue enfeffed one B. in this case the saide B. shall shewe this matter and that the vtlagarie was after the feffement made and so haue the landes out of the kinges handes by a Monstraunce de droit But it shoulde seeme their oppinion is againste the lawe and the bookes beefore rehersed vnlesse this feffement were founde by office Peticion .12 Trauers .7 because it appearethe that the kinge in this case is entytled by double matter of recorde And note that where the kinge is entitled but by office alone there the partye maye haue his Monstraunce de droit althoughe his title bee
notwithstandinge thoffice for it did not appertaine to mee to trauerse thoffice and discharge the tenure but that matter was left to my tenant to doe and seeinge hee did it not hee hath charged him selfe of a tenure by way of conclusion to the kinge as well as to mee but it is not so in the other case Also it is to bee noted that if the kinge seise landes in title of Wardshippe and make a feffement thereof in thys case the heire neede not to sue his peticion but may haue a scire facias to repele the said letters patents because the king was deceiued in his grant as it appereth T. 7. H. 4. fo 17. M. 21. E. 3. fo 50. For there the king himselfe is in possession still till liuerie be made so the heire there hath no cause to sue by peticion the kinge is bounde to deliuer it vnto him in whose right he seised Also note that sute by peticion can be to none other than onely to the king for no such sute shal be made to the Quene or to the lord prince for these parsonages haue no such prerogatiue as it appeareth 10. 11. Trauers 51. H. 4 et 10. et 14. E. 3. but though the kinge hee seised sometime in an other bodies right and not in his own Peticion 4 Voucher 135. Scire facias 135. yet the sute that is to be made must bee by petition as well as if hee were seised in his owne right as appereth .10 H. 4. And as I said in the beginning a manne shall haue his peticion for goods as well as for landes as where theschetour seyseythe goodes of one that is outlawed and hathe accoumpted for them in the Eschequer and after thutlagarie is reuersed in this case the partye hathe no remedy for his goods but onelye by peticion Peticion 8. And this case you shall see in .34 H. 6. Howbeit Catesby Hussey hold oppinion to the contrary here of M. 1. Peticion 10 H. 7. And learne if a peticioÌ„ be sued for lands and the plaintife be nonsute whether it be paremptorie or not beecause some saye that that sute is as it weare hys write of righte PeticioÌ„ 11. et 17. and hereof see the booke 11. H. 4. .3 H. 7. ¶ Where a Scire facias must be sued before a lyuerye or Ouster le maine IF the king be seised of a ward and grantethe yt durante minore etate now when the heire commeth of full age and sueth his general liuerie he nedeth not to sue a Scire facias against the pateÌ„tee because his estat is determined by the ful age of the heire and yet it may be that the heire had forfaited his maryage vnto the patentee and then hee hathe good cause to reteine the lande til he bee satisfied of the forfaiture But the lawe shall not entende anye suche forfaiture to bee and therefore ther nedeth no Scire facias be sued Like law is it as semeth if the king graunt the wardshyppe for no time certaine but quamdiu in manibus nostris fore contigerit if he make a special liuerie vnto the heire beeinge within age there needed no Scire facias to be sued so is it where the grant is but dutante beneplacito nostro but if the kyng haue land in ward and enfeffeth therof a strauÌ„ger some think the heire nedeth not to sue any Scire facias against the feffee but at his pleasure and some other thinke he muste beccause his estate is not determined by the full age of the heire as it is in the firste case I put before And it may be that an auncester collaterall vnto the childe hath released with warrantie whiche is descended which the feffee might pleade if he came in by Scire facias or els by the liuerie she saide warrantie is vtterly lost these cases appeare P. 7. H. 4. f. 27. 30. 43. 10. M. 12. E. 3. 50 2. H. 7. f. 2 H. 6. f. 20 M. 1. H. 7. f. 11. .5 E. 4. f 3. Howbeit me thiÌ„ks it were wisedome for the heire to sue a Scire facias to th entent that he therebye with the kinges helpe mighte repelle the sayde letters pattents and bringe them as it were out of his way whiche thinge hee may â—oner bringe to passe by the kinges sute than by hys owne Allso the heire when hee sues liuery nede not to sue anye Scire facias againste him that hathe the landes to ferme vppon a trauers as appearethe in 1. H. 7. Liuery P. 18 for hee hath noe terme certaine in the land but donec discussum fuerit whiche woordes are beecome voyde after the heire is of full age because it can not be then discussed with oute preiudyce of the heire and therefore voyde Then further let vs see wheare hee that sueth by peticion or that tendeth his trauers or Monstrans de droit shall sue a Scire facias and where not And as to that it is a generall rule that yf the kynge haue graunted the wardshyp of the landes ouer for any terme certaine or granted any other certaine estate in the landes he that sueth his peticion Monstrans de droit or trauerse muste sue a Scire facias againste the kinges patentee in suche case Trauers 25. but hee nedeth not to sue any agaynste the heire in whose righte the king is seised of the lande because he that sueth doth not pleade withe the heire but onelye with the kynge or such as hathe his intereste as appeareth in 37. lib. ass Like law it is if the kyngs grant be but durante beneplacito nostro or that it bee made hangynge the trauerse peticion or Monstrans de droit in this case hee that suethe neede not to sue any Scire facias And these cases appeareth in 5. E. 4. f. 3. 13. E. 3. Brief P. 260. And note that if the kynge graunt the wardshippe to one whiche graunteth it ouer to the husbande and to his wife then must there a Scire facias be sued bothe againste the seconde lessee and the patentee but the wyfe nede not to bee named in the Scire facias For there lyethe no voucher in this Scire facias Howebeit in a writ of garde she shoulde haue bene named but also of the voucher Brief 618. and this case is adiudged 46. Edwarde the thirde and yet neuerthelesse Neuton is of oppinion in S Henry the sixte f. 17. that no Scire facias shall bee awarded againste the lessee in this case but onelye against the kings patentee And learne if the kinge grant but the bodie alone whether there nede anye Scire facias to bee sued or noe Also note this case that is to say where the king seised forwardshippe beefore office and made a graunt ouer and after office was founde wherbye it appeared that the childes father in whose right the kinge seised Assise P. 156 was but tenaunte for terme of life the
the new Natura breuium fo 26â— and in .5 H. 5 H 5. H. 5. I finde a scire facias sued vpon this statute against him that had liuerie because an office hath found an other to be nerer heire to the auncestour that dyed than was hee that sued liuerie So alwaies as farre as I can finde it is sued vppon a recorde the disproues the liuerie or ouster le maine and not vpon any that affirmes it whereby I suppose that yeluertons opinion is lawe as is beefore declared And it semes that by this statute the king must sue a scire facias al though the recorde or title that is found for him bee founde within a yere after liueri or ouster le maine sued And lerne whether Assise lye against the eschetour that sesseth without a scire facias in cases where a scire facias should be sued For by the sta of W. 1. ca. 24. assise lieth against him in cases wher he seiseth anye landes by colour of his office wtout speciall warrant or commaundement or certeine authoritie that be longeth to his office so to doe And learne whether the king by that seisure hath any possession for if the king seise without a scire facias where he ought to sue a scire facias the partie hath no remedy but to sue vnto him by peticion euen as he should do if his highnes had seised any other lands of his without cause Howbeit the king by such a reseiser vndoeth not the parties possession so that he shal bee saide an entruder from the time of the liuerie or ouster le maine sued as it doth in case the reseiser had bene vpon a scire facias wherfore in such case although the partie cannot be suffred to recouer his possession againe by entrie vppon the king yet when the kinge graunts it ouer he may now enter or haue assise Trauers 26. as appeareth .24 E. 3 fo 34. et 43. li. Ass Also note that this statute that geeues the scire facias extendes but vntoo him or them haue liuerie or ouster le maine or anye other claiming by them For if after liuerie on ouster le maine sued a stranger by an eigne title in disaffirmyng the tenaÌ„ts interest enter as heire vpon him or recouer by assise of mor dauncester or any other accion auncestrell against him is entred into the land as heire nowe because the landes are holden of the king in chiefe his highnes may seise the saide land for primer seisine or title of Wardshippe as the case doth require without any scire facias 21. E. 3. fo 1. as appeareth .21 E. 3. For it is not to be said now a reseiser because against hym there was no seiser made of the saide landes before And lerne enquire if he that missueth the liuerie be within age whether the king shal reseise in that case as he shall doe if it were missued by one of ful age as take yâ— case to bee landes are holden of the kinge in Socage in Capite now the liuerie is sued within age that is to saye at the age of .14 yeres whether in this case the missuing of the same shall be a cause of reseiser or not T. 12. R. 2 see the booke thereof 12. R. 2. The wordes of the statute be further that if any record be found in the tresorie or elles where that vpon this record a scire facias shall be awarded But that is to bee vnderstande in this maner that first the transcript of the said record shal be by writ remoued into the Chauncerie and then out of the Chauncery shal there be a scire facias awarded not out of the tresory as it appeareth .21 â—â— li. ass lib. Ass Issues mesne NOte that if the king haue a title right or interest to any lands or tenements his highnes wheÌ„ he seiseth shal be aunswered of all the mesne issues and profites from the time of his sayd title right or interest growen and whether it be a right of entre or title of entre it maketh no diuersitie in the kinges case as for an example the king entreth for a condition broken his highnes shal be answered of all the issues and profites sins the condicion broken and yet in that case a common person shal not haue the issues and profites but from the time of his entrie Like law is it if the kinges tenaunt aâ—en in mortmain and the kinge entreth but otherwise it is if he entre for mortmain in lands not holden of him vpon a title deuolued vntoo his highnes in defaut of other lords And these cases appere H. 19. et 41. E. 3. fo 21. 19. E. 3. Entre coÌ„g P. 39. The same law is it where his highnes is entitled to seise for that the lands are of his foundatioÌ„ and aliened contrarie to the statut of west .2 ca. 41. which geues the writtof contra formaÌ„ collationis H. 46 E. 3. Forf P. 18. in this case his highnes shal be answered of all the mesne issues growen from the time of the alienatioÌ„ as appereth H. 46. E. 3. And note also that if the king make any graunt which is not sufficient in the law or is deceiued in the making of the same by reason it was made vpon a false suggestion in his case if this highnes doth resigne this graÌ„t adnull it iure regis as he may he shal be then be answered of all the mesne issues profits which were lost by reason of the sayde insufficient graunt as appereth .11 H 4. But if his highnes bee entitled to any lands nomine destriccionis there his highnes shall not bee answered of the profites but from the finding of that title 11. H. 4. f. â— as in case where the kinges tenant in chief alieneth without licence and an office is therof found in this case his highnes shal not be answered of the profites from the time of that alienation but onely from the tyme of the findinge of the office or from the tyme of a Scire facias returned wher the alienatioÌ„ is of record P. 8. e. 4. f. 4 and herof see the booke 8. E. 4. Like law is where his highnes is to seise the lands of his widow that hath maried her selfe without his licence 40. li. Ass Gard P. 36. And note that where the king is to be aÌ„swered of the mesne issues and profits perceued and taken of any landes which haue come to soÌ„dry hands sins the kings title first growen to the same there euery one of them that haue sondrely so perceiued and taken the profits shal answer for his owne time and not one for all as it appereth in the boke of 46. before remembred And note also that by the statut of w. 2. ca. 32. it is prouided that if any spiritual man bring any real action and recouer that the land recouered shall remayne in the kinges hands vntill such time as it be sued out of his hands by him that recouered or els by the chiefe lorde and in the meane time the shiriue shal auÌ„swer the kinge in the eschequer of the profites by which statut whether the collusion bee found or not found yet the king shal haue the meane issues as it is thought 20. H. 6. 20. H. 6. f. â— So it is in a writ iudicial of deceite brought against any the king shall haue the issues growen from the time of the first iugement vntill iugement be geueÌ„ in the sayd writ of disceit ¶ Some tymes the kynge recouâ—eth of the issue in the allowance of an estraunge tytle as yf the husband beynge the kynges tenant vpon a false suggestion purchaseth lycence to alieÌ„ to take estate to him to his wife so doth afterward dyeth the wife holdeth her in by title of Suruiuor occupieth nowe vpoÌ„ a Scire facias against the wife his highnes shal bee answered of all the meane issues since her occupiynge of the ii parts of the land and the thyrd part he recopeth and alloweth for her dower .40 li. Ass P. 36. ¶ Note that in a writ of disceit vpon a recouery in a Preeipe quod reddat of land where the proces was a graÌ„d Cape 40. Li. Ass Gard. P. 1. if the pleintyfe recouer he shall recouer the land and his damages but not the issues of the land synce the fyrst iudgement because the kinge shall haue them by the graunde Cape and the shirife accomptable of theÌ„ quod vide titulo disceit in Fitz P. 33. 46. 7. 32. Contrarie lawe is it if there lie no grand Cape in the action as if the recouerie be in a Scire facias as it appereth titulo Disceit in Fitz P. 36. 27. Finis Diuers other prerogatiues therbe which the kiÌ„g hath by the order of the comoÌ„ law that be not wtiÌ„ this statute coÌ„priÌ„sed a great part wherof vnder the title of Prerogatife master Fitz herbart hath most diligeÌ„tli noted in his great AbridgmeÌ„t so well ordred placed there that I doo of purpose omit to reherse them here The rest woulde require so longe a serche that oneles I had gathered and noted them al redie as I haue not doÌ„e in dede I should be faine to peruse the hole bodie of the comoÌ„ Lawes for the knowleg therof wheruntoo time seruethe mee not wherefore at this time myne intent is not to medle with them Imprynted at London in flete strete within temple Barre at the signe of the hand starre by Rychard Tottel An. 1567. Cum priuilegio
But as to that a manne maye answere and saie that a Chaunceller hathe two powers the one absolute the other ordinarie and this trauerse is before him by an ordinarie power in whiche case all thinges touchinge the same must proceede as it shoulde before anye other ordinarie iudge of the common lawe and therefore it shoulde appeare by a booke in .4 H. 6. fo 12. et 22. Trauers 12. Edward 4. fo 9. that if the partie be nonsuit in this trauerse it is peremptorie vnto him for so might hee delaie the kinge infinitely tamen quere and learne whether one maye procede with a trauerse the heire beeinge within age or else shall tarrye till hee bee of full age for the booke is in 5. T. 5. E. 4. f. ◠Edwarde 4. that hee shall tarrie till the heire cometh to age But in this question one may make this distinction that is to saye Whether the trauers be tēded by a strāger or by the heir for sōtymes it happeneth that the heyr shal traūs as wel as a strāger For no more then a straunger can haue ouster le maine wtout trauersinge all the kinges titles no more may the heir haue liuerie wythout trauersinge all his tytles and then if the trauerse bee to bee taken by the heire hee shal not be thereunto admytted vntill hee bee of age because that beefore that time he hath no cause to haue his liuerie But that reason serues not where the trauerse is to bee taken by a straunger and therefore it should seeme that hee shoulde haue it by and by For hee hathe cause to haue an ouster le maine forthwith and that with the meane issues and profites and therefore it were no reason that the nonage of a thirde person shoulde hinder him with whome hee is not to plede or to trye anye right but onelye with the kynge For if the childe haue right hee may enter vpon the stranger after hee hath his ouster le maine and trye hys righte with him and so at no mischiefe And note as I saide before that the heire must trauerse all the kinges titles ere hee can haue liuerie and that whether the kinges tytle be in his owne right or in the right of an other in his owne right as if there bee a recorde that proues this lande to be aliened wythout the kings lycence or that thauncestour of thenfaunt that woulde sue his liuerie was but tenaunt for terme of lyfe the reuercion to the kynge and hathe made a feffement to the kinges disheritance or suche lyke in these cases notwithstandinge the kinge did not seise by vertue of these recordes but onelye by vertue of thoffice whyche founde thauncestour of thinfaunt dyed seised the kynges tenaunt in chiefe of estate in fee simple yet the heire geatteth no generall liuerie vppon that office vntill suche time as hee hath auoided these other recordes And if hee haue it before it is a cause of reseiser So it is where the kynges title is in righte of anye other as if one bee founde heire by office and after by another office an other is founde heire of the same landes to the selfe same auncestour in this case he that was first found heire cannot haue his generall lyuerie vntill suche time as hee hathe destroied the other title either by an enterpleder or a trauerse for if it so come to passe that he cannot enterplede then must hee trauerse or by some other meanes auoide the recorde ere hee can haue his saide generall liueries and if he sue his generall liuerie otherwise it is then missued and a good cause geeuen to the king to reseise And this enterpleder or trauerse beetwene them that claime as heirs is by the order of the common lawe and not by statute and can neuer be but where both theire titles bee founde first by office and the reason is because that as sone as the matter is discussed betweene them hee for whome it is founde shall forthwith haue hys general liuerie which he can neuer haue if his title bee not first founde by office and therefore not like the case where a straunger trauerseth with the kinge that is to haue but an ouster le maine for there the kinge hadde no right too seise and therefore his tytle nede not to bee found by offyce as I haue saide before But in the other case who so euer shall claime the lande as heire his highnes hath right to seise in the right of the saide heire and to haue his primer seisine or wardshippe as the case dothe require And therefore his title must bee first founde by office but where one heire is to trauerse with an other heire duringe the kinges possession this shall not bee vntill hee that is first founde heire by thoffice come of age because vntil that tyme the landes ought to remaine in the kinges handes and then hee to haue liuerie but whether hee that was firste founde heire shoulde tarrye for thage of him that was laste founde heire I haue said my mynde therin before in the tytle of Enterpleder But where a straunger is to trauerse hee shall not tarrye for thage of the heire for the causes before remēbred And so there appeareth to bee a great difference beetwene a trauerse taken by him that is a straunger and by him that is heire But at this daye moste liueries that bee sued are specyall liueries whiche conteine in them selues a pardone and therefore the myssuinge of them is dispensed withall by the woordes of the pardone conteined in the saide liuerie And so manye of these thinges that I haue spoken of before are not much to bee obserued if the liuerie or Ouster le maine bee not generall For I see no lett but that an ouster le maine maye be graunted specially as well as a liuerie And laste of all it is to bee noted that this trauerse extendes not to euerie recorde that entitleth the king but onelye to suche recordes as bee trauersable as an office or suche like as I shall shewe my mynde therein more fullye in the chapter of Peticion Other trauerses there bee whiche bee trauerses by order of the common lawe And not by any statute as trauerses vppon enditements or presentmentes whereof I entend not to entreat in this place amonge whiche trauerses there is also by order of the common lawe a trauerse concerninge goodes and cattalles of persons attainted for the whiche a manne shall trauerse with the kinge althoughe his title thereunto bee by double matter of recorde As take the case to bee a manne is attainted of treason or felonye or outlawed in a personel accion and after by office it is founde that hee was possessed of a horse or anye other gooddes as his owne proper cattell where in deede they bee the goodes of a straunger in thys case the saide straunger shall trauerse this office with the kinge So is it if it bee founde by office that a manne outlawed in a personall accion is seised