leases for the terme of his owne or another persons life of lands T. for life And because tenant in taile is in diuers respects but tenant for the terme of his owne life T. in tayle of his lands intailed therefore if he commit Petit Treason or Felonie he shall forfeit his said intailed lands but for terme of his owne life And he that hath land in another right shal forfeit for high Treason petit Treason Murder or other felony no longer or greater estate than he hath in the same lands as a man seised in the right of his wife of laÌ„ds T. in the right of his wife or church or in the right of his church Fitz. Forf 13. shal forfeit no further estate in the same lands but during his owne estate therein as it doth appeare not onely by the rules of the common lawes but the same is also confirmed by the Statute of 5. Ed. 6. 11. hereafter rehearsed The forf of lands in tayle 26 By the common law Tenant in tayle beeing attainted of high Treason should haue forfeited the lands whereof hée was so seised of an estate in tayle but onely for the terme of his owne life and the same after his death should haue discended to his heire But now by the Statute made Anno 26. H. 8. and Anno 5. Ed. 6. St. 26. H. 8. 16. St. 5. E. 6. 11 it is ordained That euerie offendor and offendors being hereafter lawfully conuict of any manner of high Treason by presentment confession verdict or Proces of Outlawrie according to the due course and custome of the lawes of this Realme shall loose and forfeit to the King his heires and successors all such lands tenements and hereditaments which any such offendor or offendors shal haue of any estate of inheritance in his own right in vse or possession by any right title or meanes within this realme of England or elsewhere within any the Kings dominions at the time of any such Treasons committed or at any time after 16. El. Dyer 332. As if the King giue land to the husband and wife and the heires males of their two bodies lawfully begotten the remainder thereof to the heires males of the body of the husband lawfully begotten reseruing the reuersion to himselfe and the husband and wife haue issue a sonne and the husband committeth high Treason is attainted thereof and executed and this attainder is confirmed by Act of Parliament and all the offendors lands bée giuen to the King Sauing to all Straungers their right other than to the Donor in Tayle and his heirs In this case after the death of the wife the King shall haue the land for that by reason of the fathers attainder of Treason the estate Taile was forfeyted and extinguished by force of the sayd Statutes of Anno 26. H. 8. and Anno 5. Edw. 6. and the bloud corrupt An estate taile forfeited and extinguished and the heirs disabled for that in his lineall conueyance of his discent to the land hée must deriue himselfe heire as well to his father as to his mother Br. Done 61 Co. li. 1. 103 And in like sort if a man seised of lands in fée simple maketh a feoffement thereof to certaine persons to the vse of his wife for the terme of her life the remainder thereof to the vse of the heires of his owne bodie lawfully begotten after the feoffor hath issue a sonne and is attainted of high Treason and executed In this case his sonne shall not inherit this land as heire to his father whose bloud was corrupt by his attainder but the land shall be forfeited to the King by the foresayd Statute of 26. H. 8. And as tenant in taile by committing of high Treason shall by force of the foresayd Statutes of 26. H. 8. 5. Ed. 6. forfeit those lands wherof he hath the possession reuersion or remainder in tayle so shall hée likewise forfeit to the King by committing of high Treason those lands whereunto hée hath but a right in taile Pl. Com. 547. As if the King giue lands to a man Forf of a right in tayle and to the heires males of his bodie lawfully begotten reseruing the reuersion to himselfe and the tenant in tayle hath issue a sonne and dyeth and the sonne doth enter and make a feoffement in fée to a stranger of the same land and then hath issue a sonne and committeth high Treason and is attainted thereof this land shall bée forfeited to the King for by this feoffement made by tenant in tayle to a straunger there passed none other estate from the same tenant in tayle but only an estate for the terme of his owne life and so the tayle and the right of the tayle remained in the tenant in tayle and by his attainder the estate in tayle is extinguished in the Kings reuersion in fée simple And the King shall bee sayd rather to haue this land reuerted vnto him as if all the issue of tenant in tayle were dead than by forfeiture for the words of the Statute of 26. H. 8. be All persons attainted of Treason shall loose and forfeit to the King his heires and successors all lands and tenements which such offendor shall haue of any estate of inheritance at the time of the Treason committed or at any time after Sauing to all others and their heires other than the offendors in Treason their heires and successors all their rights and possessions c. which they had at the day of the Treason committed or after And by these generall words That they shall loose and forfeit all lands and tenements which they haue of any estate of inheritance and by excluding the heire in the Sauing lands tayled shall bée forfeited and the lands in this case cannot be aptly termed to be forfeited to the King and his heires where hée had the fée simple before but are rather to be sayd reuerted to the King the tenant in tayle dying without any issue which by his attainder of Treason and the corruption of his blood Co. li. 7. 33. could inherit this land And if the King by his letters Patents vnder the great Seale doe create an Earle Forf of name or title of dignitie intailed and giue him the title and honour of an Earledome to him and the heires males of his body begotten and the grantée hath issue two sonnes by seuerall women and then dyeth and his eldest sonne doth enioy the same Earledome and after committeth Treason by leuying of warre in the Realme against the King and is attainted thereof and then dyeth without issue of his bodie begotten by this attainder the same shal be forf to the K. and not discend to the brother of the half blood nor to his heirs for this Earldom and name of dignity may be intailed according to the stat of W. 2. St. 13. E. 1. 1 De donis conditionalibê° for that it concerneth land must
same in a writ of Maintenance brought against him but he cannot retaine or intreat a man learned in the law to be of counsell with the principall partie nor meddle further in that cause than to sée the mainprise performed and himselfe discharged Maintenance in respect of his interest in the land 24 Euerie person that hath any interest in land may meddle and maintain him who is impleaded for the same land and not bee punished therefore in a writ of Maintenance As if tenant for terme of life or in taile of land bée impleaded for the same land or any part thereof Bro. Maint 53. he in the reuersion or remainder thereof may at his owne charges maintaine him in that suit for the safegard of his owne estate for it is in a sort his owne case and the defence of it is to his owne benefit and the euiction to his owne disheritance But this maintenance must be after tenant for terme of life hath atturned vnto him in the reuersion for i◠he maintaine the suit before it is punishable in him 9. H. 6. 64. And so it is if a man being seised of land hath issue a daughter who is maried to another if the father in law be impleaded of that land in a reall action the sonne in law may maintaine him at his owne charges for that by possibilitie that land may after the decease of his father in law descend to his wife and so come to him in her right But if the daughter dye without issue of her bodie begotten by the said husband before the said suit commenced 14. H. 7. 2. 6. E. 4. 5. 19. E. 4. 3. then the sonne in law cannot maintaine the father in law in that suit Neither can hee maintaine him during the life of his wife if an action of Debt couenant account or any other personall action be brought against him for he is neither to take benefit or losse by any of those suits 6. E. 4. 2. 39. H. 6. 20. And if a man seised of land make a lease for certaine yeares of the same and after a suit is commenced betwéene the said lessée for yeares and a stranger touching the same land or any part thereof the lessor may giue euidence for the lessée vpon the triall of the cause in question or otherwise may maintaine him in that suit at his owne charges for it tendeth to his owne priuat benefit or losse And in some case a man may maintaine a suit lawfully though he be neither heire to the land nor in possession reuersion Maintenance in respect of his possibilitie or remainder thereof As if a man being seised of land 9. H. 6. 64. doe make a lease thereof to another for the terme of the life of the lessee and after doth grant to a straunger that if the said tenant for terme of life doe dye during the same lessors life that then the same stranger shall haue and enioy the same land for the terme of xx yeares after the death of the same tenant for life if in this case the tenant for life be impleaded for this land the same stranger may maintaine him for the sauing of his owne estate for yeares and yet he hath no certaintie but a possibilitie of a terme for yeares which peraduenture will neuer chance And likewise in some other case a man may maintaine a suit lawfully though he be neither in possession reuersion remainder or possibilitie of the thing in question Maintenance in respect of his warranty As if a man be seised of a rent going out of another persons land 11. H. 6. 49. to him and to his heires and by his déed doth graunt the same to another and to his heirs with clause of warrantie and the tenant of the land out of the which this rent is issuing doth atturne to the grauntée of this rent if after the grauntée be impleaded of this rent vpon tryall of the issue the grantor may come into the Court and shew to the Iurors such euidence as he hath to prooue the title of this rent and it is lawfull maintenance and not punishable in him though he was neither called into the Court by voucher to warrantie or by Warrantia Chartae And so might he haue done if he had beene called to warrantie by any of the meanes aforesaid vpon a warrantie made of land or rent for it is to preserue himselfe out of daunger and from recompencing in value of that whereof before he had made warrantie 25 As it is in lands and leases so is it in rents goods and debts Maintenance in respect of his rent for euerie person that hath interest in them may meddle and maintaine and defend him who is impleaded or prosecuted by suit or doth implead or prosecute by suit any other for any matter or cause concerning him or whereupon hee doth depend so that the same suit doth tend to impeach preiudice or trouble his estate therein or may redound to his benefit or profit or may be a meane thereof 9. H. 6. 64. As if a man haue a rent charge in fée out of certaine lands and another man hath in custodie a boxe of writings concerning the same rent and after hée that hath the rent doth graunt it to a stranger and his heires to the which graunt the tenant of the land charged doth atturne and moreouer the grantor of that rent charge doth graunt to the assignee of the same that if he can recouer the same boxe of writings that then the same assignee shall haue them If after this graunt the grauntor doth pursue a writ of Detinue against him that hath the custodie of this boxe of writings he to whom the same rēt charge was graunted may lawfully maintaine him in that suit for that by promise he is to haue the same boxe of writings if it be recouered for the preseruation of his estate in the said rent charge 11. H. 6. 47. And a Lord may maintaine his tenant if he be impleaded for his freehold A Lord may maintaine his tenant in respect of his rent and seruices that he is to receiue and haue of him And so it was before the Statute of Vses made anno 27. H. 8. if a man had made a feoffement of land to others to his owne vse the feoffor might maintaine the freehold tenant which held of his feoffees in respect of the vse which he hath in the rent and seruice of that tenant 15. H. 7. 2. 26 And the same law is touching debt As if A. do owe vnto B. xx l. and C. doe owe to A. xx l. due by Obligation Maintenance in respect of debt and A. will deliuer vnto B. the same Obligation in satisfaction of the xx l. which he doth owe him In this case B. may sue an Action of Debt vpon this Obligation against C. in the name of A. and retaine an Attourney and learned counsell and pursue and
or yeares of it and then doth assure it to the bargainée this is deceit and a writ of Deceit is maintenable against him for it for though he hath assured the land he hath not assured it clére and discharged according to his bargaine but hath deceiued the purchasor therein 11. E. 4. 6. 18 If a man doe sell a piece of cloth to another Deceit vpon a warranty and warrant it to be fortie elles long and it is not so long the buyer may haue a writ of Deceit against the seller of the same cloth by force of his warranty although the warranty be by word onely 6. Ed. 6. Dyer 76. without writing so that it be at the time of the bargaine made But if the warranty be at another time after the bargaine made then the buyer must haue some writing to testifie this warranty or otherwise hée shall not haue a writ of Deceit against the seller 9. Ed. 4. 13. Fit Nat. Br. 98. 19 If an action of Debt bee brought against two as executors Deceit by confession of an action brought against executors whereas one of them was neuer executor nor administrator and if he which is executor do make default he who was not executor doe appeare confesse the action he that was named executor may haue against the other an action of Deceit for he hath vndertaken to plead a plea to the action of debt which he could not doe and that also to the deceit and hurt of another 26. H. 8. 7. 20 If a man doe marry a wife possessed of goods Couin by aliening of his wiues goods those be the husbands to giue and dispose at his pleasure during the mariage betwéene them But if after they be diuorced the wife shall haue her goods againe vnlesse the husband hath giuen or sold them before the Diuorce for in that case the wife is without remedie And yet if the husband doe alien those goods by couin to the intent to defraud and defeat his wife of them and after they be diuorced then shee may auerre the couin and recouer the goods from the alienée 35. H. 6. 5. Co. lib. 3. 78 83. li. 5. 83. 21 Though buying of goods in an open marketh doth worke an alteration of the property of the same goods Sale of goods in opē market by couin and doth bind the Title as well of all strangers as of the owner if the goods be sold in such a shop or place as is commonly vsed for the selling of goods of the same kind or nature yet if one man do steale purloine or iniuriously take away another mans goods and then by couin betwéene him and a third person doth sell the same goods in an open vsual place of sale 7. H. 7. 12 in an open market or faire to the third person who at the time of buying of the same goods did know that the seller came not lawfully by them or that they were not his goods this is a void sale And in respect of this Couin the first and right owner of these goods may lawfully take and carrie them away notwithstanding the said sale in open market Fraudulent assurances to defeat the discontinuée in tayle 22 If the father being tenant in tayle of certaine lands M. 34. E. 1. Fitz. Garrantie 88 will make a feoffement thereof to another with warrantie and so discontinue the estate taile hauing assets of other lands in fée simple to leaue to discend to his son and heire and then within few dayes before his death will alien the same fée simple land to his sonne and heire and to his heires vpon couin and to the intent that the same fee simple land should not be pleaded to come by discent from the sayd father to his sonne nor adiudged as Assets by discent in his hands yet this couin being found by verdict in a writ of Formedon brought against him by the heire of the land entailed shall giue the discontinuée aduantage to plead that the same heire had assets by discent in fee simple left him by his said father for that the law doth adiudge this alienation made by the father to the sonne a little before his death by couin to defraud the discontinuée of his lawfull plea to be as no alienatiō but that the father dyed seised of the same fée simple land and that it came to his sonne and heire by discent 23 Because Lords of Mannors lands and tenements haue as great right to enioy the wardship of the bodies and lands of their wards Fraudulent conueyance to defeat a Lord of his wardship as they haue to their other inheritances lands and goods and it is as great an iniury to deceiue them thereof by couin and collusion as to defeat and defraud them of their other lawfull titles therefore by a statute made at Marlebridge anno 52. H. 3. it was enacted That if any man do enfeoffe his eldest sonne or heire St. 52. H. 3. 6 being within age of his inheritance that therby the Lord might loose his wardship yet notwithstanding such feoffement the chiefe Lord shall haue his wardship And by the said statute it was further ordained That if any persons meaning to demise their lands for terme of certaine yeares that they might thereby defeat the Lords of the fee of their wardships will faine false feoffements containing that they are satisfied of the whole seruice due vnto them vntill a certaine terme and that such feoffées are bound to pay at the said term a great summe to the value of the same lands or much aboue so that after the said terme the land shall reuert to them or their heires for that no man wil desire to hold the same of so great a price yet by such fraud no chiefe Lord shall loose his wardship And if the chiefe Lords do by iudgement of the Court recouer their wardships yet the feoffees shall haue their action reserued to recouer their terme or fée when the heires shall come to their lawfull age And for the further preuention of couin in auoiding of wardships by one other stat made anno 34. H. 8. it was ordained St. 34. H. 8. 5 That if any person or persons hauing estate of inheritance of or in any Mannors lands tenements or hereditaments holdē of the king by Knights seruice in chief or otherwise of the king by Knights seruice or of any other person or persons by Knights seruice haue giuen at any time since the 20. day of Iuly anno 32. H. 8. anno Dom. 1540 or hereafter shall giue will deuise or assigne by will or other act executed in his life his mannors lands tenements or hereditaments or any of them by fraud or couin to any other person or persons for terme of yeares life or liues with one remainder ouer in fee or with diuers remainders ouer for terme of yeares life or liues with one Remainder ouer in fée simple to
persons vnlawfully assembled Then euery person which so being able and required doth willingly and obstinatly refuse so to doe shal suffer imprisonment for one yeare without baile or mainprise And as in al the cases aforesaid euery able person is bound vpon request to assist the Iustices shirifes other the Kings officers to pursue apprehend arrest and imprison Manquellors robbers felons or other disturbers of the peace and so to do his whole endeuor to be a conseruator of the peace of the Realme Euerie person must assist to execute the K. Writ In like sort is euery able person bound by the common law and by the Stat. of Westm̄ 1. Westm̄ 2. to be attendant vpon the Shirife St. 3. E. 1. 17. S. 13. E. 1. 39. or vndershirife in the execution of the kings writs and by that meanes to be a supporter of the justice of the Realme These offēces punishable in the Starre Chamber 86 Menaces assaults batteries imprisonments and maihems committed by some persons to some persons at some times in some places in some manner forme sort and with some circumstances besides the penalties aforesaid inflicted vpon the offendors therein are also punishable in the Kings high Court of the Starre chamber as other offences hereafter mentioned be as it doth more at large appeare in Oppressions 35. ¶ Of Riots Routs vnlawful and rebellious Assemblies RIots Routs The enormitie of Riots vnlawfull Rebellious assemblies haue bin so many times pernitious fatal enemies to this kingdom the peace tranquillity thereof haue so often shaken the foundation and put in hazard the very forme and state of gouernment of the same that our lawmakers haue béen enforced to deuise from age to age one law vpon an other one stat after another for the repressing punishing of them haue endeuoured by all their wits to snib the sprouts quench the very first sparkes of them as euery man may easily perceiue there was cause thereof who will looke back and call to his remembrance what that small Riot begun at Dartmouth in Kent in the raigne of King Richard the second betwéen the collector of a subsidy and a Tyler and his wife about the payment of one poore great did come vnto which being not repressed in time did grow to so great a rebelliō that after it put in hazard the life of the K. the burning of the Citie of London the ouerthrow of the whole Nobility gentlemen and all the learned of the land and the subuersion of this goodly Monarchy and forme of gouernment Or if they will call to mind the small Riot or quarrell begun in the raigne of King Henry the sixt between a Yeoman of the gard and a seruingman of Richard Neuils Earle of warwick which so farre increased for want of restraint that it was the roote of many wofull tragedies and a meane to bring to vntimely death first Richard Plantagenet Duke of Yorke proclaymed successor to the Crowne and the chiefe pillar of the house of Yorke and after him King Henry the sixt and Prince Edward his sonne the heires of the house of Lancaster and to ruinate with the one or the other of them most of the Péeres great men and gentlemen of the realme besides many thowsands of the common people West 1. 3 E. 1. 32. Sta. 7. Ed. 1. St. 13. E. 1. 6. And therefore King Edward the first did well ordaine That no Shirifes shall suffer Barretors or maintainers of quarrels in their Counties And that to all parliaments Treatises and other assemblies each man shall come peaceably without any armor and that euery man shall haue armor in his house according to his ability to kéepe the peace And King Edward the third prouided Statutes ordained to preuent forces or Riots that no man shall come before the Iustices St. 2. E. 3. 3. St. 5. E. 3. 14. nor goe or ride armed And that suspected lewd and riotous persons shall be arrested and safely kept vntill they be deliuered by the Iustices of Gaole deliuery St. 34. E. 1. 3. Sta. 2. R. 2. 6. And that Iustices of peace shall restraine offendors riotors and all other Barretors and pursue take and chasten them according to their Trespas and offence Sta. 5. R. 2. 6. St. 15. R. 2. 2 St. 7. R. 2. 13 King Richard the second did prohibit Riots Routs and forcible entries into lands that were made in diuers counties and partes of the Realme And that none from thenceforth should make any Riot or Rumor And that no man shall ride armed 20. Rich. 2. 1 nor vse Launcegaies And that no laborer seruant in husbandry or Artificer St. 12. R. 2. 6 or victualer shall weare any buckler sword or dagger And that all the Kings officers shall suppresse and imprison such as make any Riots Routs St. 17. R. 2. 8. or vnlawful assemblies against the peace King Henry the fourth enacted That the Iustices of peace the Shirife shall arrest those which commit any Riot Rout or vnlawfull assembly shall enquire of them and record their offences St. 13. H. 4. 7 King Henry the fift assigned commissioners to enquire of the same Iustices Shirifes defaults in that behalfe St. 2. H. 5. 8. and also limited what punishment offendors attainted of Riot should sustaine King Henry the seauenth ordained Sta. 19. H. 7. that such persons as were returned to enquire of Riots should haue sufficient fréehold or copihold land within the same Shire And that no maintenance should hinder their Inquisition And in the Raigne of Quéene Mary Sta. 1. M. 12. there was a necessary Statute established to restrain and punish vnlawfull and rebellious assemblies raised by a multitude of vnruly persons to commit certaine violent forcible and Riotous acts 2 As the said Lawes Statutes were deuised in seueral ages by the wisedom of the Realme to enquire of and restraine Riots Routs vnlawfull and rebellious assemblies and to checke violences and forces before they should grow to a head So haue our prouident forefathers erected the most honorable Court of Starre chamber The Court of Starre chambers authoritie to punish Riots c. to examine and punish those and other offences when they breake out to extremities viz. to great and haynous Riots or such like enormities thereby to kéepe euery person in awe and so the whole Realme in peace As appeareth by the Statute of Anno 3. H. 7. whereby it is inacted That the Chauncellour and Treasorer of England for the time being and the President of the Kings Councell St. 3. H. 7. 1. Stat. 21. H. 8. 22. and the kéeper of the Kings priuy seale or two of them calling to them a Bishop and a Temporall Lord of the Kings most honorable priuy Councell the two chiefe Iustices of the K. Bench and common place for the time being or other two Iust in their absence vpon bill or information put to
officers requisit to be had for the spéed of the said suits which shall do their dueties without any rewards for their counsels helpe and businesse in the same And the same law and order shal be obserued in all such suits to be made before the K. Iustices of his Common pleas Barons of his Exchequer and all other Iust in Courts of Record where any such suits shal be 30 As Maintenance in the cases aforesaid is lawfull and iustifiable Maintenance in respect of kindred or alliance in respect of the parties priuat profit or interest in the thing in question or when it is done without malice or hope of profit vpon a charitable disposition so is it in diuers cases allowable in regard of the linke or bond of nature whereby one person is by loue or dutie tied to another 34. H. 6. 26. 6. Ed. 3. 33. as the father may maintaine his son and heire and giue money of his owne in defence of him or his title or suit for he is bound to find him but so he may not doe for another kinsman And the sonne may maintaine the father and mother and one brother another and one néere kinsman another 21. H. 6. 16. 14. H. 7. 2. 20. H. 6. 1. 19. Ed. 4. 3. 21. H. 6. 16. and one ally another in some cases and in some sort as if a man be impleaded another that is his brother or kinsmā or of his alliance may go to the bar with him stand by him comfort him or he may ride to his counsell with him or he may request a man that is learned in the law to bée of counsell with him in that cause 9. Ed. 4. 32. but he must not retaine that learned man nor giue him any mony of his own to be of counsel neither must he giue or promise money to the Iurors or any of them to giue their verdict for him for then it is vnlawfull maintenance in him so it is in a stranger who hath nothing to do in that cause if he doe goe to the barre with him that is impleaded or do stand by him of purpose for to countenance the cause in question or doe request a learned man in the law to bée of counsell with him or doe giue money to any of the Iurors for their verdict this is vnlawfull Maintenance in him And in the cases aforesayd and all other cases of Maintenance Vnlawfull maintenance is continuall this vnlawfull Maintenance is a continuall Maintenance during that suit vnlesse the partie grieued doe in the meane time release the same But if the same Maintenance bee in respect of alliance and that hee who is supposed to bee the maintainor hath maried the daughter sister néece or other kinswoman of one of the parties to the first suit wherein the maintenance was supposed be he must pleade 6. Ed. 4. that his wife was liuing at the time of the maintenance supposed to be for if she were then dead the alliance betwéene them is dissolued and then he had no cause to maintaine that suit but shal be punished as a stranger And yet in that case 14. H. 7. 2. if the same woman hath any issue of her bodie begotten who may inherit the land of him whose suit that husband of the deceased woman and the father of that issue did maintaine then is the maintenance lawfull in any action brought against the same partie in respect of the kindred and also of the benefit that may come to his owne issue And in a writ of maintenance it is a good plea for the defendant to plead Maintenance in respect of gossiprie that hee was gossip to him whose cause he was supposed to maintaine 6. Ed. 4. 5. for that gossiprie is in law adiudged a kind of affinitie Maintenance in respect the partie could not speake English 31 A. brought a writ of Maintenance against B. and supposed 34. H. 6. 26. 15. H. 7. 2. that the same B. did maintaine L. in an action which he brought against the said L. on the part of the said L. Whereunto the sayd B. pleaded that the same L. was a Dutchman borne out of the Kings obedience and could not speake the English or Latine tongue and therefore being acquainted with B. the defendant who could speake the Dutch tongue he desired him to bring him to some man learned in the law to be of his counsell in that suit and to informe that learned man of the truth of his cause in question whereupon hee brought him to one M. a man learned in the law and opened the truth of his case vnto the said M. as he receiued it from the said L. in Dutch which is the same maintenance And this was adiudged a good plea in barre and a lawfull maintenance for it is a déed of charitie to aid and helpe him who could not helpe himselfe And the Dutchman had no meanes to helpe himselfe being a straunger borne and not vnderstanding the English nor Latine tongue but by the assistance and information of some English man Maintenance in a professor of the Law 32 If a Serieant at law an Apprentice or other Councellor 6. Ed. 4. 5. being retained for his fee doe giue vnto his Client the best counsell that he can for the recouerie or defence of the suit which he vndertaketh according to the ordinarie course of the law or doth enforce the euidence at the barre so much as he can at the tryall of his clients cause this is lawfull maintenance and iustifiable But if he doe pay or promise money to any of the Iurie to giue his verdict for his client or do threaten any of them to be killed beaten 22. H. 6. 6. or otherwise euill intreated if they do giue their verdit against his client or if he do spēd 11. H. 6. 13. or do offer to spend his own mony in defence of his clients cause this is vnlawful mainnance and punishable according to the before rehearsed stat of ann 1. R. 2. for those things he doth not as a lawyer or according to the course of the law nor by the warrant of law but by iniustice and vpon his owne corruption and wrong But in the first specified case if a man that is not learned in the law 22. H. 6. 5 hauing himselfe no interest in the cause in question will declare to the Iurie or to the partie or to his counsell the cause in question and the circumstances thereof as a man learned in the law this is vnlawfull Maintenance in him though hee doe it as well as a man learned in the law for hee doeth it vpon Maintenance where the learned man doeth it for his fee. And so it is if a man that hath land in suit or question will bring and shew his euidences and writings to a Nobleman Fitz. Maint 21. Gentleman or other man of countenance that is not learned in the law and
As the law doth both condemne reiect fines and recoueries Warranties deuised by fraud which bée practised or put in execution by fraud or deceit so doth she renounce and make frustrate all sorts of warranties that be deuised or contriued vpon collusion or couin to defeat or defraud others of their iust lawfull titles for though warranties be much fauored in the law for that they be meanes to establish the title of those who be tenants of land in possession but yet if any of thē be vndertaken performed or mixed with fraud then it doth not only loose his fauor but also his force in law Co. lib. 5. 79 50. Ed. 3. 12. 43. E. 3. 7. As if land be giuen to the father for the terme of his life the remainder to his sonne heire apparant in taile and the father by couin agréement betwéene him and another to barre his sonne by a collaterall warranty of his remainder will make a lease of the same land to that other person who will make a feoffement in fée to a third person of the same land to whom the father will release with warranty and thē the father dieth the warranty doth discend vpon his sonne being of full age yet this warranty wil not barre the sonne of this land for the feoffement of the lessée for yéeres was a disseisin and the father was partaker of the offence an actor agréeing thereunto and though the release with warranty was made after the disseisin yet séeing the disseisin was made to that end the law doth adiudge the whole fact frō the beginning to be fraudulent the warranty to begin by disseisin so all that assurance to be void against the heire in taile And in like sort other warranties that do commence by disseisin be contriued to deceiue defeat the right heirs of their iust and lawfull titles 20. H. 6. 10. Regist f. 113 44. Ed. 3. 4. 12 If one do bring a Praecipe quod reddat against two other men Deceit by getting of a Protection and they do purchase a protectiō for one of thē suggesting that he is to go beyond the sea in the kings seruice whereas he doth not so but remaineth still in England and so hath done euer sithence his protection purchased by which meanes the demaundant is delayed of his suit in this case the same demaundant may haue a writ of Deceit against the said tenants for this deceit and delay and shall recouer his dammages Deceit by purchasing a writ to charge another 13 Whereas according to the course of the Chauncery Fit Nat. Br. 96. the king is to haue of euery person who doth bring against another an action of Debt of the summe of fortie pounds or more vj. s̄ viij d. for a fine and for an hundred markes vj. s̄ viij d. and so for euery hundred markes vj. s̄ viij d. and for euery Praecipe quod reddat brought of land to the yearely value of fiue markes vj. s. viij d. and so according to that rate vnlesse it be a writ of right patent If any other person doe purchase a writ in the Chauncerie in my name without my priuitie whereby I shall be charged to pay to the king for a fine any of the summes aforesaid I may haue an action of Deceit against him and recouer my dammages for this writ was obtained to put me to charges and thereby to deceiue me of so much Deceit for purchasing a writ in anothers name 14 If A. being patron of a Benefice Fitz. Na. Br. 96. Regist f. 112. 7. H. 6. 45. when the Church is void do present his Clerke to the Ordinary and B. doth disturbe him whereupon C. doth purchase a Quare impedit against B. in the name of A. returnable in the common pleas A. not knowing thereof and after doth cause the writ to be abated or A. to be nonsuit in that writ in this case A. may haue a writ of Deceit against the same C. and recouer his dammages Deceit for procuring of a suit And if B. doe procure C. to sue an action against A. whereby A. is vexed Fitz. Na. Br. 98. A. may haue a writ of Deceit against B. Deceit by acknowledging of a statute 15 If A. and B. doe come before the Mayor of the Staple Fitz. Na. Br. 105 100. Regist f. 115 or before any other Mayor of any Citie Borough or Towne hauing authority to take acknowledgement of debts and there A. doth acknowledge a statute to B. of an hundred pounds or c. in the name of C. and doth report himselfe to be C. where he is not so whereupon C. is troubled and this statute extended against him then the same C. may haue a writ of Deceit against the said A. and B. and shall recouer his dammages And so it is if another man will leuie a fine of my land in my name Deceit by doing of a iudiciall act in anothers name or confesse an action brought against me in my name or will enter into a voucher in my name 19. H. 6. 44. Regist f. 113 and confesse the demaundants action or will acknowledge a Recognizance or statute Marchant or other matter of Record in my name I haue no other remedie but by an action of Deceit But it is otherwise if he seale and deliuer an obligation in my name for I may plead that it is not my déed which I cannot doe against a Record Deceit by forging of a resignation 16 If a Notarie Fitz. Na. Br. 99. Regist f. 114 and other persons doe by agréement counterfeit the seale of any Parson or Vicar and forge letters of resignation of his Parsonage or Vicarage in the name of the same Parson or Vicar by which meanes he is remoued from the possession of the same Parsonage or Vicarage he may haue a writ of Deceit against the same forgers 20. H. 6. 36. 21. H. 7. 41. 16. Ed. 4. 9. 17 If a man doe bargaine with another to enfeoffe him of certaine lands within twenty daies Deceit by assuring of land to one man which was bargained to another or c. and after he doth enfeoffe a stranger of the same land the he with whom the bargaine was made and was deceiued therein may haue a writ of Deceit against him that so bargained and defeated him thereof And so it is if a man doe compound with another to purchase a mannor or certaine land for him and hée doth buy it for himselfe the partie may haue an action of Deceit against the same purchasor And in all cases where a man doth promise to doe a thing and he doth it falsely a writ of Deceit is maintainable against him Deceit by charging of land after sale as if a man doe promise to assure land to another and after he doth graunt a Rent charge or a common out of it or doth make a Lease for life
shall willingly and wittingly put in vre auowe maintaine iustifie or defend the same or any of them as true simple and done or made bona fide and vpon good consideration or shall alien or assigne any the lands tenements goods leases c. to them conueied or any part thereof shall forfeit to the Queene c. and the partie grieued by such fraudulent feoffement gift bond suit c. one yeares value of the said lands c. leases rents or other profits and the whole value of the said goods and cattels and so much money as shall be contained in such couenous and fained bond to bée recouered by A. I. B. P. c. wherein no W. E. P. c. And béeing thereof lawfully conuicted shall suffer imprisonment one halfe yeare Common recoueries without Baile or Mainprise But common Recoueries had against Tenant in taile or other tenant of the fréehold of lands the Reuersion or Remainder or right of Reuersion or Remainder whereof then shall bée in any other person shall as touching such person and his heires which hath the Reuersion or Remainder thereof be of like force and none other Voucher in Formedon as the same should haue béene if this Act had not béene made And no estate or conueyance by reason whereof any person shall vse any voucher in any writ of Formedon shall bée made void by this Act But euery such voucher in any writ of Formedon shall be of like force as if this act had not béene made Lands or goods assured bona fide and vpon good cōsideration Prouided alwaies that this Statute shall not extend to any estate or interest in lands leases goods c. lawfully assured vpon good consideration and bona fide to any person or persons bodies politique or corporat not hauing at the time of such conueyance c. any knowledge of such fraud or collusion as is aforesaid Fraudulent déeds to auoid forfeitures 29 If a man to preuent a forfeiture for a felonie or vpon an outlarie Co. li. 3. 82. will make a gift of all his goods and after is attainted of felonie or outlawed these goods shall be forfeited notwithstanding this gift for this word forfeitures specified in the foresaid Statute of Anno 13. St. 13. El. 5. El. shall not be intended onely of the forfeiture of an obligation Recognisance or such like but also of euery thing which by the Law may be forfeited to the King or to a Subiect And the same Act of Anno 13. El. shall not extend onely to creditors but also to all others who haue cause of Action or suit or to haue any penaltie or forfeiture And if a man do bind himselfe and his heirs to pay to another a certaine sūme of money at a day assigned and before the day doth come of paiment Co. li. 5. 60. the obligor dieth leauing to his sonne and heire sufficient land to pay the same debt the heire doth enter and alien the same land before the obligée doth commence his suit vpon the said obligatiō If vpon the suit of the same obligation the heire do plead nothing but discent and vpon the trial of that issue the foresaid alienation be found by the Iurie to be made by fraud to deceiue the said creditor of his debt or that be pleaded the said alienation shal be void by the foresaid statute of 13. El. and the plaintife shall recouer A déed of gift must be vpon good consideration and bona fide 30 In the said Statute of Anno 13. El. there is one Prouiso St. 13. El. 5. That the said Act shall not extend to any estate or interest in lands tenements or hereditaments leases rents commons profits goods or cattels which is or hereafter shall be lawfully had made conueyed or assured vpon good consideration bona fide to any person or persons or bodies politique or corporat not hauing at the time of such conueyance or assurance to them made any manner of notice or knowledge of such couin fraud or collusion By which Prouiso it appeareth that the gift which is within the compasse of the same Prouiso must be both vpon good consideration and also bona fide And therefore whereas A. did owe to B. CC. l. and to L. a hundred pounds Co. li. 3. 80. payable by two seuerall obligations L. brought an Action of debt against A. vpon his said obligation of a hundred pound during which sute A. being possessed of goods and cattells to the valew of two hundred pounds in secret made a generall déede of gift by writing of all his goodes and cattells Realls and Personalls whatsoeuer to B. in satisfaction of his debt and notwithstanding A. continued in possession of the same goods and sold some of them and did share and brand the shéepe with his owne brand and after L. had iudgement to recouer against A. and had a Fieri facias directed to the Shiriffe of the Countie where A. dwelt who by force of the Writ came to make execution of the same goodes but B. resisted him by force clayming those to be his goodes in respect of his said déede of gift and reported that it was a good déed of gift and made vpon lawfull consideration But in the Starrechamber this was adiudged a fraudulent déede and within the statute of 13. Infallible markes of a fraudulent deede of gift Eliz. for this déed of gift had all the badges and markes of fraud for it was generall and without any exception of his apparrell bedding or any other necessary thing and the owner continued in possession of all the goods and vsed them as his owne and the déede of gift was made in secret and not sealed deliuered nor published amongst his neighbours And it was made whilest the sute was depending betwéene L. and A. And héere was a trust betwéene the Donor of these goods and the Donée for the Donor possessed the goodes and vsed them as his owne and fraude is alwayes shaddowed with trust and trust is the couer of fraud and the writing purported that the déede was made honestly truely and Bona fide which be not accustomed words in a déede of gift and vnusuall termes in any Instrument doe bréed suspition And though this was a true debt due to B. and the consideration was good yet this was not within the before specified Prouiso for that the déede of gift was not made also Bona fide for no déede shall be adiudged to be made Bona fide according to the said Prouiso which is accompanied with any trust and the words of the Prouiso be in the copulatiue vpon good consideration and Bona fide So that good consideration will not serue vnles the gift be also Bona fide viz. to the intent that the Donée shall haue carry away and enioy to his owne vse the possession of the same goodes without any trust expressed or implied and therefore whosoeuer will make a déede
contrary héereof notwithstanding St. 27. El. 4. If any person or persons haue heretofore sithence the beginning of the Q. raigne that now is made or hereafter shall make any conueiance gift grant Conueiances with condition of reuocation or alteration demise charge limitation of vse or vses or assurance of in or out of any lands tenements or hereditaments with any clause prouision article or condition of reuocation determination or alteration at his or their will or pleasure of such conueiance assurance grants limitations of vses or estates of in or out of the said lands tenements or hereditaments or of in or out of any part of parcell of them contained or mentioned in any writing déede or indenture of such assurance conueiance grant or gift and after such conueiance grant gift demise charge limitation of vses or assurance so made or had shal or doe bargaine sell demise grant conuey or charge the same lands tenements or hereditaments or any parcel thereof to any person or persons bodies politike or corporate for money or other good consideration paid or giuen the said first conueiance assurance gift grant demise charge or limitation not by him or them reuoked made voyde or altered according to the power and authoritie reserued or expressed vnto him or them in and by the said secret conueiance assurance gift or grant Then the said former conueiance assurance gift demise and grant as touching the said lands tenements and hereditaments so after bargained sold conueied demised or charged against the said bargainées vendées lessées grauntées and euery of them their heirs successors executors administrators and assignes and against all and euery person and persons which haue shall or may lawfully claime any thing by from vnder them or any of them shall be déemed taken and adiudged to be voide frustrate and of none effect by vertue and force of this present Act. St. 27. El. 4. Prouided neuerthelesse that no lawfull morgage made or to be made Bona fide and without fraud or couin vpon good consideration Morgages shall be impeached or impaired by force of this Act but shall stand in the like force and effect as the same should haue done if this act had neuer béene had or made Anie thing c. This Act nor any thing therin contained St. 27. Eli. 4. shall extend or be construed to make good any purchase Assurances of lands defeated before the Statute grant lease charge or profit of in or out of any lāds tenements or hereditaments héeretofore made void defeated or vndone by reason or any former conueiance graunt or assurance so as the partie or parties or their heirs or assignes which haue so defeated or made void the same were in actuall possession the first day of this present Parliament of or in the said lands The authority of the court of Starre-chamber tenements or hereditaments whereof or out of which any such purchase graunt lease charge or profite was made Neither this Act nor any thing therein contained shall extend in any sort to restraine or impaire the iurisdiction power or authoritie of the Court of Starrechamber A purchasor doth know before of a fraudulent déede 32 If a man seised of land in fée Co. li. 5. 60. do make a fraudulent conueiance thereof to the intent to deceiue and defraud purchasors contrary to the said Statute of Anno 27. Eliz. and doth continue in possession of it and taketh the profite of it and doth after enter into communication with a stranger for the sale of it to him and by chaunce the same stranger hath knowledge of the same fraudulent assurance and notwithstanding he doth bargaine with the same party for his land doth conclude with him and taketh his assurance from him in this case the same purchaser shal auoide this former fraudulent cōueiance made by the seller of this land though hée had notice thereof before for the said Act of Anno 27. Elizab. by expresse words doth make the fraudulent conueiance voide touching the purchasor and séeing it is within the expresse puruiew of the same Statute it is to be so taken and construed in repressing of fraud and it is not the purchasors knowledge thereof that doth make the fraudulent conueiance good which the said statute hath made voide The father maketh a fraudulent lease and the sonne selleth the land 33 If the father doe make a lease for yeares of his land by couin Co. li. 6. 72. to defraud others to whom he will demise or sell the same land as all fraudulent leases shall be intended to be made to that end and before he doth sell or demise the same land he dieth and his sonne and next heire knowing or not knowing of the said lease doth sell the same land for good consideration Then the purchasor shall auoide this lease by force of the foresaide Statute of Anno 27. Elizab. for séeing the Lawe doth presume that euery fraudulent lease is made generally to defeate purchasors lessées c. within this generality euerie particular purchasor farmor lessée c. is included And it is not materiall though he who sold the land did not make the former fraudulent lease estate or incombrance but if the estate be fraudulent the purchasor shall auoide it whosoeuer selleth the land A womans iointure made by fraud 34 And the same Lawe is if a man doe conuey land to the vse of his wife Co. li. 6. 73 for her iointure by deceit and couin to defraud a purchasor to whom he intendeth to sell the same land in this case if the same fraud be prooued by euidence or confessed by pleading the purchasor shall auoide the said wiues estate Fraudulent déeds to defeat successors of disapidations 35 Because diuers Ecclesiasticall persons being possessed of mansion houses and other buildings belonging to their Ecclesiasticall Benefices or liuings did suffer the same for want of due reparations partly to decay and partly to fall downe conuerting the timber lead and stone to their owne vses and also made déedes of gift and colourable alienations and other conueiances of like effect of their good and cattels in their life time of purpose after their deaths to defraud their successours of such iust Actions and remedies as otherwise they might and should haue had against the executours or administratours of their goodes by the Lawes Ecclesiasticall of this Realme for the redresse whereof by a Statute made Anno 13. Elizab. it was enacted St. 13. El. 10 St. 1. Iac. 25 That if any Archbishop Bishop Deane Archdeacon Fraudulent déedes to defeate successors of dilapidations Prouost Treasurer Chancellor Chaunter Prebendarie or any other hauing any dignitie or office in any Cathedrall or Collegiat Church within this Realme or any Parson Vicar or other Incumbent of any Ecclesiasticall liuing whereunto doe belong any houses or buildings which by lawe or custome hée is bound to maintaine in reparation doe suffer any
that he did cause some lawfull punishment to be inflicted vpon certaine of them for their crimes notwithstanding all these or such like misdemeanors be neither Treason nor Felony by the Law but a Riot and yet in respect of the basenesse of the parties which committed this wrong of the cause for the which they put it in practise of the worthinesse of the person and of his place vpon whom it was executed of the barbarous course taken in the performance therof of the perillous exāple giuen to other malefactors these riotors deserue to bée censured with a much sharper punishment then the former For as there be no bounds obserued by leud and wicked persons of their outrages so be there no certaine means or limits assigned of their punishments but the said most honourable Court of estate may draw forth his Maiesties sword of iustice and first punish the said offences according to the particuler lawes and statutes prouided therfore and then euery person transgressing by himselfe according to the circumstance of his demerits as partly may appeare by the statute of anno 3. H. 7. St. 3. H. 7. 1. which expresseth some parts of the authority giuen to the Lords of the said Court and more by a branch of the statute of Magna Charta whereby it is enacted St. 9. H. 3. 14 That euery fréeman shall be amerced viz. punished for reasonable cause according to the quantity of his offence And further by the statute of Anno 33. H. 8. St. 33. H. 8. 1 which giueth the lords of the said Court of Starre-chamber authority to punish those who by counterfeit letters or tokens shall get other mens goods into their hands by imprisonment setting vpon the pillory or other corporall paine whatsoeuer except death ⧠Treasons 1 CRimen lesae Maiestatis What is Treason in our English tongue called Treason is a great offence done to the Maiesty of gouernement and the peace of the land which the wisdome of this Realme hath from age to age so much hated and abhorred that they haue persecuted those that were guiltie therin with most violent and vntimely death and with extreame and seuere tortures they haue ordained that an offendor therein shall be hanged and cut downe aliue that his bowels shall bée cut off and burned in his sight that his head shall bée seuered from his bodie that his quarters shall bée diuided asunder and disposed at the Kings pleasure and made food for the birds of the aire or the beasts of the field and that his wife and children shall be thrust out of his house and liuings that his séed and blood shall be corrupted that his lands and goods shall be confiscated and as by the statute of 29. H. 6. 1. it is ordained of the Traitor Iohn Cade he shall be called a false Traytor for euer And as our respectiue and considerat forefathers haue deuised to yéeld vnto those grieuous offendors Legem talionis and to teare their bodies lands and goods who doe practise to rent and pull asunder this Maiestie of gouernement by destroying the head or such as are like to be the principall succéeding members thereof or by diuiding the bodie into parts or by weakning the force and strength thereof or by subuerting the chiefe Magistrats of iustice or by counterfeiting staining or blemishing of the peculiar and royall Ensignes Cognisances and Sinewes thereof so haue they béene carefull and prouident that there should be no greater number of those dreadfull sharpe and bitter lawes than vrgent necessitie for the preseruation of that Maiestie of gouernment required And because it was in former times greatly doubted and ofttimes called in question amongst the Sages of the Realme and learned in the lawes which offences were by the common law high Treason and which not and which were petit Treason and which not and seuerall men were of seuerall opinions therein and to the intent that al future ages might know and be more vigilant to eschew the penalties thereof King Edward the third at his Parliament begun at Westminster the thirtéenth day of Ianuarie St. 25. E. 3. 2 in the 25. yere of his raign at the request of his Lords and petition of his Commons made a declaration thereof in manner as hereafter followeth viz. It is high Treason where a man doth compasse High treason or imagin the death of our Soueraigne Lord the King or of our Ladie the Quéene his wife or of their eldest sonne and heire or if a man doth deflower the Kings wife or the Kings eldest daughter being vnmaried or the kings eldest sonne and heires wife or if a man doe leuie warre against our Lord the king in his Realme or be adherent to the kings enemies in his Realme giuing to them aid and comfort in his Realme or else where and thereof be probably attainted of open deed by people of their owne condition And if a man do counterfeit the Kings great Seale or his priuie Seale or his money which offences Bracton doth terme Crimen falsi And if a man bring false money into this Realme counterfeit to the money of England knowing the money to be false Bracton de Corona cap. 3. to marchandise or make paiment in deceit of our Lord the King and his people And if a man kill the Chauncellor Treasurer or the Kings Iustice of the one Bench or the other Iustices of Eire and of Assises and all other Iustices assigned to heare and determine beeing in their places doing their Offices And it is to bée vnderstood that in the cases aforesaid it ought to bee adiudged Treason which extendeth to our Lord the King and his royall Maiestie And of such Treason the forfeiture of the escheat doth appertaine to our Lord the King as well of the lands and tenements holden of others as of himselfe And moreouer there is another manner of Treason Petit treason that is to say When a seruant killeth his Master or a wife her husband or when a secular or religious man killeth his Prelat to whom he oweth faith and obedience And such manner of Treason giueth the escheats to euery Lord of his owne fée And because many other cases of like Treason may happen in time to come which a man cannot thinke of nor declare at this present It is accorded that if any other case supposed to be treason that is not before specified doth happen of new before Iustices the Iustices shall stay without proceeding to iudgement of Treason vntill the case be declared and shewed before the King and his Parliament whether it ought to be adiudged Treason or other Felonie And in case any man of this Realme doe ride armed openly or secretly with people armed against another for to kill or rob him or to take and detaine him vntill he hath made fine and ransome to be deliuered it is not the King or his Counsels wil that in such case it shall be adiudged Treason but it shall be
partie most interessed or grieued by the same murder or felonie is to prosecute sute against the saide offendor by Appeale and thereby to séeke reuenge against him for the wrong done to himselfe or his auncestor or else the offendor is to be indited at the Kings sute whose peace hée hath broken and whose lawe he hath offended and who hath a speciall interest in all manner of treasons and felonies to punish them to wéede them out of his kingdomes and dominions and to defend his subiects from them And therefore I am to expresse in this Chapter and the next what an Appeale of felonie is and what an Indictment is by whom for whom and against whom and in what cases they are to be begunne prosecuted and maintained what defences or pleas are to be made or pleaded by the supposed offendors vnto them and what counterpleas may be obiected against the same plees Appeale of death An Appeale is a plaint of one person made against another with an intent to attaint him of felonie by a course of Lawe prouided therefore which appeale may be brought against a woman couert without her husband against an infant and all others that can commit felonie and a woman may haue an appeale for the death of her husband Appeale by a woman of the death of her husband because the husband and wife be one flesh but of the death of none other by force of the Statute of Magna Charta which hath ordained That none shall be taken St. 9. H. 3.34 or imprisoned by the appeale of any woman for the death of any other than of her husband And therefore if a woman doe bring an appeale of the death of her father and the Defendant would admit it yet the Court will abate it 10. Ed. 4.7 Plow Com. fol. 85. because it is contrary to the said Statute Appellāt conueieth his title by a woman 2 As a woman shall haue no Appeale of the death of any other but of her husband No more shall any cosin of him that was slaine who maketh his conueiance in kinred by a woman haue any appeale of the death of him that is killed notwithstanding he be issue male and not female Appellant conueyeth his title by a woman and notwithstanding that the woman by whom he maketh his conueiance died in the life time of him 20. H. 6.46 Fi. Cor. 385 17. Ed. 4.1 of whose death the appeale is commenced As if a man haue issue one onely daughter who marrieth a husband hath issue a sonne and dieth and after the father of that woman is slaine In this case the sonne of the woman shall not haue an appeale of the death of his saide grandfather though hee be his next heire at the common lawe and inheritable to his land because his mother was foreclosed of it by the foresaid statute of Magna Charta and so likewise he which hath none other title thereunto but that which he deriueth from his saide mother Fi. Cor. 384 17. Ed. 4.1 But if he that was slaine haue none heire on the fathers side then the vncle or next of kinne on the mothers side shall haue the appeale yea though he doe conuey his title thereunto by a woman 3 By the auntient lawe of this Realme a woman could not haue an appeale of the death of her husband vnlesse her said husband were slaine betwéene her armes within the yéere and day before Neither could shée or any other haue an appeale vnlesse she or he were present at the death of the partie slaine and sée it But that Lawe was altered by the Statute of Gloucester St. 6. Ed. 1.9 whereby it was ordained That no Appeale shall be abated so soone as they haue béene heeretofore But if the appellant in an appeale doe declare the déede the yeare the day the houre The declaration in appeale of murder the time of the King and the Towne where the déede was done and with what weapon hée was slaine the appeale shall stand in effect And the appeale shall not be abated for default of fresh sute where a man doth sue within the yeare and the day after the déede done 50. Ed. 3.15 28. Ed. 3.91 27. Ass p. 3. 4 If a woman will haue an appeale of the death of her husband The woman must be the deads lawfull wife it is requisite that shée be not onely his wife indéede viz. de facto but also lawfully and in right viz. de iure for neuer accoupled in lawfull marriage is a good plea to barre her of her appeale And it shall be tried by the Bishop whether she be his lawfull wife or not 20. H. 6.46 12. El. Dyer 296. 5 It is requisite that a woman who will maintaine an appeale of the death of her husband shall liue sole and vnmarried The woman must liue vnmarried for by her second marriage her appeale is extinct though her second husband doe die within a yeare and day after the death of her first husband And if a woman doe bring an appeale of the death of her husband and hanging the Writ shée doth marry another husband her appeale shall abate for euer 11. H. 4.46 6 If a woman doe bring an appeale of the death of her husband A woman marrieth betweene iudgemēt executiō and doe pursue the Defendant vntill Iudgement And then after iudgement and before execution shée marrieth an other husband In this case shée shall not obtaine execution viz. the Defendant shall not be hanged at her sute for shée hath willingly lost the name of her first husband before shée hath obtained the effect of her sute and the reuenge which shée brought her appeale for Where appeale lieth but no dower 7 There be some Cases where a woman shall haue an appeale of the death of her husband though she be not endowable of the possession of the same husband As where her husband is attainted of treason 27. As p. 41 35. H. 6.58 and after one doth kill him his wife shall haue an appeale and yet she shall haue no dower And in like sort if a woman doe elope from her husband and after one doth kill him she may maintaine an appeale against the offendour but no writ of dower against his heire And many other Cases there be where a man was so seised of his lands that his wife is not thereof endowable by the Lawe And yet if hee be slaine she may maintaine an appeale against the manqueller Where the wife may haue appeale none other shall 8 Where a woman may haue an appeale of the death of her husband 20. H. 6.47 Kel fol. 120 none other shall haue it during her life nor after her death though the wife doe die within the yeare and day after the death of her husband and before the appeale commenced for that the appeale was once out of the blood it shall not be restored to his
blood againe If the husband be killed by his wife The husband killed by his wife his sonne shall haue an appeale 33. H 8. Dyer 50 18. Ed. 4.1 And yet if in that case the King doe pardon the wife all treasons the sonne shall be barred of his appeale Appeale of death by the heire 9 If he that was slaine had no wife liuing at the time he was killed then his next heire by the common Lawe if he be male shall haue the appeale But if hée which bringeth the appeale be the next heire male to him that was slaine yet if there be another liuing which is his heire by the common Lawe though not his heire male his appeale shall abate As if he that was slaine had issue a daughter and no sonne 27. As p. 25. Fi. Cor. 384 his brother cannot maintaine an appeale against the offendor though hée be his next heire male because he is not next heire by the common Lawe to him that was slaine but his daughter is And by the same reason a Bastard nor the youngest sonne which doth inherite lands in Borough English A Bastard Heire in Borough English shall not maintaine an appeale because neither of them is heire by the common Lawe It was a custome in olde time if one were found guiltie in an appeale of murder that his wife The maner of a murderers death and all the nearest of his kinne which was murdered 11. H. 4.11 Plo. com 306 should drawe the felon who committed the murder by a long rope to the place of execution An appeale dieth with the Appellant or by his non-suite c. 10 This appeale of the death of the auncester is so tied and affixed to the next heire male at the Common Lawe of him that was slaine that if it be once attached by him although that hée die hanging the suite or be non-suite therein or doe discontinue the suite and that within the yéere 38. H. 6.13 9. H. 7.5 16. H. 7.15 yet the appeale is extinct for euer because it is but a personall action and not auncestrell for he that was slaine could not haue maintained it and therefore being but personall it doth die with the person of the appellant But it is otherwise if the appeale were not attached by the heire during his life 11. H. 4.11 â—0 H. 6.46 but that hée died before hée brought his appeale or died in the life of his auncester that was killed In that case hée which is next heire male liuing shall haue the appeale 9. H. 7.5 Stamf. fo 59 11 If the eldest sonne before the appeale commenced and within the the yeare doth release the appeale and then dieth The heire doth release and die the second sonne and euery other which claimeth as heire to the partie slaine shall bée barred thereby 16. H. 7.15 38. H. 6.13 12 If the eldest sonne doe bring an appeale and hath iudgement Recouery and death before execution and before execution of the offendor dieth his heire shall not haue execution for if he should he is to haue it as heire to him that recouered and not as heire to the partie slaine which cannot be for hée that demaundeth reuenge of his auncestors death must make himselfe immediate heire to the same auncestor which was slaine or otherwise his sute shall not be allowed which the heire of the eldest sonne in this case cannot doe 13 If the eldest sonne after the title of appeale accrued vnto him The eldest sonne disabling himselfe or during the life of his auncester that was slaine doe disable himselfe by attainder of felonie or by being a Monke a Priest or mayhemed by the Defendant Fitz. Cor. 235.322 or by any other cause So that by such disabilitie hee cannot haue an appeale yet the second sonne shall not haue it 14 If the eldest sonne doth kill his father or his mother Killing father mother brother or wife the second sonne shall haue an appeale against him Fi. Cor. 459. And if there be thrée brethren and the middlemost killeth the elder brother the youngest brother shall haue an appeale against him And yet in the foresaide cases hée that bringeth the appeale 18. Ed. 4.1 33. H. 8. Dyer 50. is not heire to him that is slaine And if the husband doe kill his wife his sonne shall haue an appeale against him 1. H. 4.6 Littl. vill 15 If the Lord doe kill his Villaine the heire of him that was slaine The Lord killeth his villaine may haue an appeale against his Lord notwithstanding that the Plaintifs in the appeale is villaine to the Defendant for the villaines heire doth not sue for the recouerie of lands goods or liberty from the Lord but onely for a lawfull reuenge of his auncesters death And if the villaines heire should not haue an appeale in this case the said offence should remaine vnpunished by appeale for none other may pursue it 41. As p. 14. 45. Ed. 3.25 27. Ed. 3.83 Kel fol. 120 32. As p. 8. 16 An Infant An Infant within the age of twenty and one yeares may haue an appeale of the death of his auncester and in like sort hée may haue any maner of appeale But notwithstanding the plea shall remaine to be tried vntill he come to his full age of one and twentie yeares for that in this case the Defendant cannot wage battell against him Attamen quaere A man of 70. yeares of age 17 A man of the age of thrée score and tenne yeares may haue an appeale of the death of his auncestour Fi. Cor. 385 and in like sort may haue any manner of appeale and yet being of that age hée shall put the Defendant from waging of battell with him Disabilities to bring an appeale 18 If the Plaintife which ought to sue the Appeale be attainted of treason or felonie or a Monke or a Priest or mayhemed by the Defendant Fi. Cor. 32â— he shall not haue an appeale Disabilities in the appellant 19 A man that is not of perfect memorie or that is deafe and dumbe Britton or a Lazar or a foole naturall shall not haue an appeale of death nor any other appeale For battell cannot be waged against any of them euery of them being vnperfect to performe the same Pleading that the appellant hath an elder brother 20 If one brother doe bring an appeale of the death of his auncestor 7. Ed. 4. 15 it is no plea for the appellée to say that the said auncestor at the time of his death and after the Writ purchased had an elder brother named B. to whom the appeale is giuen and not to him that is plaintife for it may be that the same B. was his brother of the halfe bloud And therefore the surest way is to begin his plea with the father of him that was slaine as to say that such a man tooke to
plead that the plaintife is outlawed 17. Ass p. 26 11. Ass p. 27 18. E. 3. 35 Fi. Cor. 3 or is attainted of Treason or Felony or otherwise is disabled to maintaine an appeale as if a woman doe bring an appeale of the death of her husband and the defendant doth plead that she and her said husband were neuer accoupled in lawfull marriage or that she hath married another husband Or that the appeale was not cōmenced within the yeare day after the offence committed Or that the appellant hath an elder brother liuing to whom the appeale is giuen Fit cor 384 387. not to the plaintife And all those matters which shal be a barre to the plaintife to bring the appeale shall also be a barre to the K. to take any aduātage against the appellée vpō the same appeal for in all these cases it may appeare that the appeale was cōmenced without cause grounded vpon false insufficient matter And the king shall be in no better condition than the appellant for the defendant is arraigned vpon the declaration of the appellant and yet it is otherwise where the Appeale was at the first grounded vpon sufficient and true matter But in all the cases aforesaid though the king can take no aduantage of the Appeale against the defendant yet he may compel him to answer to an indictment of the same felonie for that by these pleas the defendant is not discharged of the felonie though he be discharged of the Appeale S. Approuers 15. 17. 18. 19. No appeale of Treason 97 If an act which was murder felony or other offence by the cōmon law be after made treason by stat then one doth offend in the same no Appeal wil lye against him therefore for that no Appeale will lye of High or Petit Treason And therefore whereas wilfull poysoning was wilfull murder by the common law and after by the stat of 22. H. 8. 9. the same was made high treason and ordained that the offendor therein should be boyled to death which stat was sithence repealed by the stat of 1. Ed. 6. 12. 1. M. yet during the said stat of 22. H. 8. in force the sonne and heire of a man poysoned brought an appeale against a woman for poysoning her husband and because the offence was then high Treason M. 33. H. 8. Dyer 50. and no appeale will lye of Treason the appeale was adiudged not maintanable And yet by the ancient lawes of this realme as Bracton affirmeth the accusor might haue pursued an appeale of high Treason against the defendant or party accused Bracton de coron̄ c. 3 and the defendant might haue thereunto pleaded not guilty and waged battell with the accusor But that Law is sithence altered ⧠Indictments What an Indictment is 1 AN Indictment of Treason Felony Trespas or other offence is an inquisition taken and made by twelue men at the least thereunto sworne whereby they doe find and present that such a person of such a name and sirname dwelling in such a place of such a County and of such a degrée hath committed such a Treason Murther Rape Burglarie Robberie Felony Trespas or other offence at such a place vpon such a day and in such a manner against the Kings peace his Crowne and Dignitie and contrary to the Lawes of this realme and so it is an accusation by the Iury of the offendor and an information of the Court from whence they receiue their charge of his offence and of all such necessary circumstances thereof and in such certaintie that thereupon the same Court may procéed to the triall or arraignement of the party accused if he be present or otherwise may award Proces against him to appeare and to make answere thereunto if he be absent And because this Indictment and accusation doth sometime concerne the life or member of man sometime his liberty sometime his fame and credite sometime his Lands and Tenements and some other time his Goods Cattels Therefore the Law hath a speciall regard that the procéedings therein may be effected with all sinceritie and vpright dealing and doth carry a vigilant and watchfull eye not onely vpon the Iurors which are returned and sworne in those Enquests that they may be men of integritie sufficiencie and indifferencie but also vpon Shirifes and Baylifes of Liberties who haue authoritie to returne the same Iurors for she hath prouided by seuerall Statutes That they shall take no Indictments by Commissions procured at their owne sute but in their Turnes That they shall hold their Turnes St. 28. E. 3. 9 St. 31. E. 3. 14 St. 13. E. 1. 13 St. 1. E. 3. 16 and take Indictments but in conuenient and vsuall times That they shall take Indictments by twelue men at the least and then by Roll indented That they shal take their Indictments by men of good name credit and sufficient of estate St. 1. R. 3. 4 St. 1. E. 4 3. That they shall bring their Indictments and Presentments found and made in their Turnes to the Iustices of Peace of the same Countie that they may award Proces against those that be indicted and set fines vpon them That Iurors impanelled to make inquiries St. 11. H. 4. 9 shall be lawfully returned by shirifes or baylifes of Franchises without the denomination of any other person That Panels returned by the Shirife to make inquiries St. 3. H. 8. 12 St. 3. H. 7. 1 may be reformed by the Iustices and that one Enquest may be impanelled and charged to inquire of concealements of offences made by another Enquest So that the Law hath prouided that Indictments may be found by men of worth and vpon iust causes And as touching Commissions because in times past Shirifes of diuers Counties by vertue of Commissions generall Writs graunted vnto them at their owne sute for their priuat gaine did take diuers Enquests to indict people at their owne pleasures Commissions to shirifes to take indictments and then tooke fines and ransomes of them to their owne vses and after set at liberty the parties and neuer brought the same persons so indicted before the Kings Iustices to be deliuered there according to the forme of Law It was therefore by a Statute made Anno 28. Ed. 3. St. 28. E. 3. 9 ordained That all such Commissions Writs should be from thenceforth repealed and that none such should be at any time after graunted By force of which Statute the Shirife is restrained to make any inquirie by Writ or Commission The shirife may inquire of Felonies But yet by vertue of his office he may at this day make inquirie in his Turne of Felonies obseruing such orders as by the statutes hereafter limitted be expressed St. 9. H. 3. 36 2 Whereas by the statute of Magna Charta it was ordayned That no Shirife or his Baylife shall hold his Turne by Hundreds but twice in the yeare in
an appeale or an indictment then the matter commeth to be tried betwéene the King and him or the appellant and him whether he be guiltie Triall of the plea Not guiltie or not If it be in an appeale it may be tried by Verdict or by Battell as the appellée will sauing in certaine Cases But vpon an Indictment there is no triall by battell nor otherwise sauing onely by verdict In an Indictment of treason or felonie against one of the Péeres of the Realme the triall is by his Péeres which manner of triall in an appeale is not allowable The arraignment of a Peere of the Realme 2 When a Péere of the Realme 1. H. 4. 1. 13. H. 8. 13. 10 Ed. 4. 6. and Lord of the parliament is to be arraigned vpon any treason or felonie whereof he is indicted and whereunto he hath pleaded Not guiltie the King by his Letters patents shall assigne some great and sage Lord of the parliament to be high Steward of England for the day of his arraignement who before the same day shall make a precept to his Serieant at Armes that is appointed to serue him during the time of his Commission to warne to appeare before him eightéene or twentie Lords of the parliament vpon the same day And then at the day appointed when the high Steward shall be set vnder the cloth of Estate vpon the arraignement of the prisoner and hath caused his Commission to be read the same Serieant shall returne his precept and thereupon the Lords shall be called and when they haue appeared and be set in their places the Constable of the Tower shall be called to bring his prisoner into the Court who then shall bring the prisoner to the Barre And then the high Steward shall declare vnto the prisoner the cause why the King hath assembled thither those Lords and him and perswade him to answer without feare And then hée shall cause the Clerke of the Crowne to reade his Indictment vnto him and to aske him if hée be guiltie or not whereunto when hée hath aunswered Not guiltie the Clerke of the Crowne shall aske him how he will be tried and then he will say by God by his Péeres And then the K. Serieants and Atturney will giue Euidence against him whereunto when the prisoner hath made answer the Constable shall be commaunded to retire the prisoner from the Barre to some other place while the Lords doe secretly conferre together in the Court and then the Lords shall rise out of their places and consult among themselues and what they affirme shall be done vpon their honours without any othe to be ministred vnto them And when they all or the greatest part of them be agréed they shall returne to their places and sit downe And then the high Steward shall aske of the yongest Lord by himselfe if he that is arraigned be guilty or not of the offence whereof he is arraigned and then of the yongest next him and so of the residue one by one vntill he hath asked them all and euery Lord shall answer by himselfe And then the high Steward shall send for the prisoner againe who shall be led to the Barre to whom the high Steward shal reherse the verdict of the Péeres and giue iudgement accordingly But if an Earle the sonne and heire apparant of a Duke or a Lord the sonne and heire apparant of a Marques or Earle 38. H. 8. Br. Treason 2 be indicted of high treason he shall be tried by Knights and Gentlemen and not by Péeres for he is not an Earle by Creation but by Natiuitie But if he be of dignity by creation and a Lord of the Parliament hee shall be tried by his Peeres 3 The foresaid manner of Triall séemeth to be appointed by the Statute of Magna Charta St. 9. H. 3. 29. which hath ordained That no frée man shall be taken or imprisoned or disseised of his fréehold liberties or frée customes nor shall be outlawed banished or by any meanes brought to destruction Neither wée will passe or sit in iudgement vpon him but by the lawfull iudgement of his Péeres or by the lawe of the Realme We will not sell deny or deferre iustice or right to any It appeareth by this statute of Magna Charta By whom Péeres appealed shal be tried that a Péere of the Realme shall be tried by his Péeres onely in case where he is indicted at the Kings suite of treason or felony for the words of the statute be we will not passe or sit in iudgement vpon him but by his Péeres 10. Ed. 4. 6 But if an appeale of murder or other felony be sued by any common person against a Péere of the Realme he shall be tried by common persons and not by his Péeres And because there was no mention made in the said statute of Magna Charta how women Ladies of great estate because of their husbands Péeres of the Realme married or sole viz. Duchesses Countesses or Baronesses should be put to answer nor before what Iudges they should be iudged vpon indictments of treasons or felonies by them committed and for that the saide statute of Magna Charta doth onely make mention of a man Therefore by a statute made Anno 20. H. 6. 9. St. 20. H. 6. 9 it was enacted By whom ladies shal be tried That such Ladies of great estate viz. Duchesses Countesses and Baronesses which shall be indicted of any treason or felony by them committed whether they be married or sole shall be brought to their answer and put to answer and iudged before such Iudges and Péeres of the realme as Péeres of the realme should be if they were indicted or impeached of such treasons or felonies committed 4 None of the foresaid statutes haue béene put in practise to extend to Bishops Bishops though they enioy the name of Lords of the parliament for they haue that name of Bishops in respect of their office or function and not in respect of their nobilitie neither haue they places in parliament in respect of their nobilitie but in regard of their possessions being ancient Baronies annexed to their dignities If a Péere of the Realme be indicted of treason or felonie he may be thereupon arraigned in parliament Arraignment in parliament if it shall please the King 10. E. 4. 6 and then the Lords spirituall shall make one Procurator for them for that by the Cannon lawe they cannot condemne any man to death A Bishop was arraigned in the Kings Bench and not by any Lords of parliament for that hée came to the parliament by summons and departed without licence 3. E. 3. 19 and because this was an offence as well to the King as to the Péeres and the King may comemnce a suite where he please for a trespas done to him therefore this was accepted a lawfull indictment though the complaint was made in an inferiour Court for an offence done in an higher
enquest of twelue women before the Iustices 22. As p. 71 25. Ed. 3. 42. 12. As p. 11 23. As p. 2. Fitz. Cor. 240. 253. who being then sworne to examine and trie the trueth shall take that woman into a chamber and search and trie whether she be quicke with childe or not and if she be found to be quicke with childe then execution of her shall be staied vntill she shall be deliuered But if shée be not quicke with child she shal be hanged presently for it will not auaile her to be yong with childe And yet whether shée be with child or not Iudgement shall not be delayed but shal be presently giuen against her that she shal be hanged but only the execution of that iudgement shal be stayed If after she is repried and deliuered of her childe and before the next Gaole deliuerie she be with child againe though she be quicke with childe execution shall not be staied but she shal be put to execution presently And yet in that case the truth of the matter being inquired of and found the shirife marshall or gaoler which had the custodie of her shal be fined for kéeping her so slackly that shée had the company of a man 13 If a man attainted of felonie be adiudged to be hanged Fi. Cor. 335 and the sherife doth carrie him to the place of execution and doth hang him and he breaketh the Rope and falleth downe before he be dead A man hanged falleth downe before he be dead In this case the sherife must take him and hang him againe for his iudgement is that he shal be carried to the place of execution and there be hanged vntill he be dead And so vntill he be dead the iudgement is not fully executed ⧠Forfeiture AFter an offendor is attainted of treason or felonie A felon shal forfeit lands and goods and hath had iudgement of death hée shall presently thereby forfeit his goods and also his lands sauing in certaine cases hereafter expressed though it be not mentioned in the iudgement And notwithstanding there is a difference betwéene treason and felonie concerning the forfeiture of lands yet touching the forfeiture of goodes they be all one for they shall be forfeited to the King St. 17. Ed. 2 16 as it appeareth by the Statute intituled Prerogatiua Regis which hath ordained That the King shall haue all the goodes of felons which be condemned and which be fugitiue wheresoeuer they be found and if they haue any fréeholde it shall be forthwith seised into the Kings hands and the King shall haue the profites thereof by the space of a yéere and a day and the land shall be wasted and destroyed in the houses woodes and gardeins and in all things belonging to the same except men of certaine priuiledged places And after the King hath had the yeare day and waste the land shall be restored to the chiefe Lord of the same Fée vnlesse that before hée redéeme the same yéere day and waste of the King by payment of a fine But there is a custome in the countie of Gloucester that after a yeare and day the lands and tenements of felons in that Shire shall reuert and be restored to the next heire to whom they ought to haue descended if the felonie had not béene committed And in Kent in Gauelkinde the Father to the Bough the Sonne to the Plough there all the heires males shall diuide their inheritaunce and likewise women but women shall not make partition with men And a woman after the death of her husband shall be endowed of the moitie And if a woman doe committe fornication in her widdowhoode or take any husband she shall loose her Dower 22. As p. 96 Fit forfeiture 35. 2 A man being indicted before the Coroner of the death of an other man Forfeiture of goods and if it be further found by the same indictment that hée did flie for the said felonie although after he be acquitte of the same felonie 7. Eli. 35. Dy. 238. Co. l. 5. 109 and notwithstanding that the Enquest which did acquitte him doe say that he did not flie for the felonie yet his goodes shall be forfeited to the King For the King shal take holde of that Record which is most for his benefit and that is the Coroners Record And in like sort if one that is indicted of felonie Fitz. forf 32. Fi. Cor. 290 344. is acquitte thereof by verdict Flying for felonie if the Iury which did acquitte him will say that he did flie for the felonie he shall forfeit his goodes which he had at the time of the verdict giuen which being an auncient lawe of this Realme is grounded vpon this reason that notwithstanding his acquitall of the felonie yet he is to be suspected of the felonie for the vehement presumption which is risen of him as well in respect of his flying away as by the indictment And though the Enquest which did finde that he fled for the felonie be as touching that part of their verdict but an Enquest of office yet it is not trauersable because it is onely touching goodes for the which goodes no trauerse against the King is allowed by the Lawe for the Lawe doth accompt goodes inter minima de minimis non curat lex And though goods be in comparison of mans life or his lands in the eie of the Lawe called and accompted Minima yet they be not of so small value or so little to be regarded but the Iudge or the Coroner ought with all due circumspection foresée that the Iurie be not vpon ignoraunce or small euidence seduced to finde an vntrueth to the vtter vndooing of the partie indicted or accused Fi. Cor. 308 338. And in like sort if a man be indicted and arraigned of felonie and it is found by the Enquest or the Coroners Roll that hée fledde for the felonie he shall forfeit his goodes though hée hath the Kings pardon of the felonie for the charter of pardon doth containe the presumption of him that he is guiltie of the felonie An accessorie fled for the felonie 3 If a man be indited before the Coroner as accessorie to the death of an other man and it be found that he fled for the felonie 4. H. 7. 18 in this Case hée shall forfeit his goodes if hée were accessorie before the felonie committed But if it be found before the Coroner that hée was accessorie to the felonie after the offence committed and that he fled for the felonie hée shall not forfeit his goodes for the Coroner hath no authoritie to meddle with any that was accessorie after the homicide committed but onely with such by whose meanes the dead man was slaine or who were the causes of his death which the accessorie after the offence committed could not be And therefore when hée indicted one for receiuing of a murderer and that he fled this inditement of the receipt of the
condemned and which be fugitiue wheresoeuer they bée found And if they haue any freehold it shall bée forthwith seised into the Kings hands and the King shall haue the profits thereof by the space of a yeare and a day and the land shall bée wasted and destroyed in the houses woods and gardens and in all things belonging to the same except men of certaine places priuiledged And after the King hath had the yeare day and wast the land shall bée restored to the chiefe Lord of the same fee vnlesse that before he redéeme the same yeare day and wast of the King by the paiment of a fine But there is a custome in the Countie of Glocester that after a yeare and a day the lands and tenements of Felons in that Shire shall reuert and be restored to the next heire to whom they ought to haue discended if the felonie had not béene committed And in Kent in Gauelkind the father to the bough the sonne to the plough there all the heires males shall diuide their inheritance and likewise women but women shall not make partition with men 33 By force of which stat of Praerogatiua Regis The yere day and wast of lands of what title shal be forfeited euer sithence that time the King hath had all the thrée things aforesaid viz. the yeare the day and the wast of the lands of him which was attainted of felonie as one of the prerogatiues annexed to the Crowne in all cases where the felon had such an estate in his land Bracton de Corona cap. 13. that he might forfeit the same after his death and that hee himselfe might lawfully haue made wast in the same without being impeached therefore And therefore if the felon be but tenant for the terme of life or for the terme of yeares of lands the king shall not haue the yeare day and wast of them after the felons death for then he might wast another mans inheritance But if a man that is seised of lands in the right of his wife do commit felonie and is attainted thereof the king shall haue the profits of the land during the husbands life if the wife doe liue so long Fitz. Cor. 327. And some doe affirme that the king shall haue the yeare day and wast of the said wiues lands after the felons death because the felon during his life might haue committed wast therein and for that the felon had such an estate in his wiues lands that by the common law he might in his life haue made alienation of them and driuen his wife to her Cuiin vita to haue recouered them But that séemeth to be helped if any such law were before by the Statute of Anno 32. H. 8. where it is ordained That no fine feoffement or other act made suffered St. 32. H. 8. 28 or done by the husband onely of any lands tenements or other hereditaments being the inheritance or fréehold of his wife during the couerture betwéene them shall in any wise be or make any discontinuance thereof or be preiudiciall or hurtfull to the said wife or her heires or to such as shall haue title interest or right to the same by the death of such wife But the same wife or her heires and such other to whom such right shall appertaine after her decease shall and may then lawfully enter into such lands c. according to their rights and titles therein notwithstanding such fine feoffement or other act fines leuied by the husband and wife whereunto the said wife is partie and priuie only except By which Statute the wife after the death of her husband may enter into her owne land notwithstanding any attainder forfeiture or other act done by her husband No yere day and wast of lands holden by ioynt purchase 34 A man seised of land in fée simple holden of a common person did infeoffe thereof the husband and wife and their heires the husband committed felonie and was attainted thereof the King seised the land into his hands for his yere day and wast and after the Kings said terme expired 4. E. 3. 47. the Lord of the fée of whom the same land was holden did sue in the Chauncerie to haue the same land restored to him to whom by warrant the Escheator did deliuer the same lend vpon whose possession the wife of the felon attainted did enter and the said Lord of the fée reentred vpon her whereupon the sayd woman brought an Assise against the sayd Lord and recouered the land Because the fée simple of the same land being in the wife by reason of the ioynt purchase with her husband the K. ought not to haue had the yeare and day after the felons death nor the Lord of the fée the land after by Escheat 35 If tenant in tayle Tenant in tayle generall or speciall or tenant in franke mariage of land do commit petit Treason or Felonie and is attainted thereof and executed the King after his death shall neither haue the yeare day or wast in the felons land nor the Lord of the fée shall haue the land by Escheat but after the felons death the same land shall discend reuert or remaine secundum formam doni to the next heire in tayle of the felon or to him in the reuersion or remainder thereof for in this case the felon was in effect but tenant for the terme of his owne life and thereby could not forfeit a greater estate in his land than that which he had And in in like sort if he that hath land by fresh disseisin or is tenant in fee farme of land A disseiser Tenant in fée farme A mortgagée vpon condition to pay the vttermost yearely value thereof or hath land in Mortgage to be redeemed by the Mortgager vpon condition of payment of money or other condition doth commit petit treason or felonie and is attainted thereof the King shall not haue the yeare day and wast for that would tend to the preiudice of others not partie to the offence who haue or may haue a better right and title to the same lands than the felon attainted Fi. Cor. 310 36 If a man that is owner of land in antient demesne Tenant in antient demesne which hee may sell without consent of the Lord doe commit petit Treason or Felonie and is attainted thereof the King shall haue the yeare day and wast notwithstanding that he hath vsed to surrender the land into the Lords hands by a rod in the Court vpon euerie alienation thereof But if he be owner of the land in auntient demesne of a base tenure it is otherwise Fitz. Cor. 290. 37 A man that tooke a Church for felonie escaped and the towne pursued The yere day wast without attainder and killed him because he would not yéeld himselfe and this matter was presented before the Iustices in Eyre and they adiudged that his goods and the profits of his lands
that all men may kill him without punishment and specially if he defend himselfe or flie away in such sort that he may be hardly apprehended But if he doe not flie or defend himselfe then he that killeth a man so taken shal answere for him as for any other man for that life and death be in the kings hands vnlesse there be a custome to the contrary as in the Counties of Hereford and Glocester And he shal forfeit the benefit of Law for he which being outlawed will be so bold as to returne without the kings licence shall die without law or further examination in iudgement And he cannot appeale others for he hath lost the benefit of law and carieth with him his iudgement vpon his head he can haue no defence so long as the Outlary standeth in force It is vpright iustice that he shal perish without law and iudgement who refuseth to liue according to the law And he shall forfeit his right and possession of all things that he hath gotten or may get And all bonds obligations homages fealties oathes and other contracts made with him be dissolued which can neuer be reuiued but vpon a new contract though he be restored And he shal forfeit all his tenements and hereditaments from him and his heires and euery action that was due to him before his Outlary though he be after restored by the kings pardon And Outlary of felony and euery other iudgement of felony doth dissolue all the gifts sales of land that he made sithence the time of the felony committed The outlawes goods shal be the kings for he cannot be outlawed in any other place but in the kings Court as in the Country Court or in the Hustings of London ⧠Corruption of Blood 1 BY attainder of Treason or Felony commeth corruption of Blood that is to say that the offendors children cannot be heires to him that is attainted nor to any other auncestor Corruption of blood salued by Parliament only And if the offendor were a Nobleman or a Gentleman before by this attainder he is become ignoble and not onely he himselfe but also all his children hauing respect to the Nobilitie which they had by their birth And this corruption of Blood is so grieuous that it cannot bee salued otherwise then by authoritie of Parliament But if the King will pardon the offendor it will cleanse the corruption of blood of those children which be borne after the pardon and they which be borne after the pardon may inherite the land which their auncestor purchased at the time of the pardon or after but so cannot they which were borne before the pardon And also he that is attainted of Treason or Felony shall not bee heire to his father but his disabilitie shall hinder others to be heire so that during his life the land shall rather escheat to the lord of the fée 27. Ed. 3. 77. Fi. Petit. 20 then discend to another But if he that is attainted doe die without issue of his body during the life of his auncestor then his younger brother sister or cousin shall inherite for if the eldest sonne be hanged Fi. Discēt 6. 26. As p. 2. or doth abiure the Realme for Felony during the fathers life it is no impediment but that the youngest sonne may inherite 29. As p. 11 13. H. 4. 8. Fit Discent 17. And if he which is attainted of Treason or Felony in the life time of his auncestor doe purchase the Kings pardon before the death of his auncestor yet he shall not be heire to his said auncestor but the land shall rather escheat to the lord of the fée But if the eldest sonne be a Clerke conuict in the life of his father and after his father dieth in this case he shall inherite his fathers land because he was not attainted of Felony for by the common Law hée should haue inherited after hée had made his purgation And now by the Statute of Anno 18. Eliz. hée shall bee forthwith enlarged after burning in the hand Fi. Cor. 382 St. 18. Eli. 6. and deliuered out of prison and not committed to the Ordinary to make his purgation and so he is in case as if he had made his purgation Where corruption of blood shall preiudice tenant by the courtesie 2 If a man that hath land in the right of his wife haue issue 13. H. 7. 17 and doth commit Felony for the which he is attainted and the king doth pardon him in this case if his wife doe die before him he shall not be tenant by the courtesie for the corruption of blood of that issue But it is otherwise if he hath issue after the pardon for then he shall be tenant by the courtesie although the issue which he had before the pardon be not inheritable The eldest sonne attainted of felony during his fathers life 3 If a man seised of lands hath issue two sonnes 32. H. 8. Dyer 48. and the eldest is attainted of Felony in the life of his father and is executed for the felony or otherwise dieth during the life of his father and after the father dieth seised of the land the land shal discend to the youngest sonne as heire to his father if the eldest sonne hath no issue then liuing But if the eldest sonne that was attainted hath any issue in life which should haue inherited but for the attainder the land shall escheat to the lord and not discend to the younger brother for that the blood of the eldest brother is corrupted Where an attainder but n◠corruption of blood 4 S. Forfeiture 27 That the attainder of Treason or Felony in certaine cases shal not extend to make any corruption of blood the disinheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other then of the offendor or offendors during his or their naturall liues only ⧠Restitution of stolne goods 1 HAuing written of Robberies and other Felonies and declared how Felons are to be prosecuted by Arrest Appeale Indictment Arraignment Tryall and Iudgement and what they shall forfeit I meane now to shew how true men whose goods were robbed stoln or feloniously taken from them by such Felons shall be restored to their goods againe As it is necessary for the Commonwealth that Felons should be punished least the impunity of some should incourage them and also allure others to commit the like offences so is it fit that they chiefely whose goods were taken from them and therby haue tasted the smart and receiued the losse by the Felons and are more likely to know who they be and where they be then others are should doe their vttermost endeauor to procure those Felons to be apprehended brought to their answers and to haue them punished according to their demerits that is to say he that was robbed What is fresh suit or whose goods were stolne from him ought presently after the