Page images
PDF
EPUB

cause himself to be essoigned, seisin shall be awarded to the demandant No. II. by default, and the deforciant shall abide in the King's mercy, reserving 12 Edward I. nevertheless unto the King the amercement for every default as hath been said before.

Now when the deforciant shall appear by reason that the plaintiff's demand cannot be known from the words of the writ, for that the causes of suing, are many and almost infinite, it is necessary that the demandant should count against the deforciant and express the cause of his demand, and this by words that contain the truth without exception to words; not following that hard rule, He who fails in a syllable fails in the whole cause,

of the causes of suit what they may be and ought to be it is fit that something should be briefly said. Oftentimes the demandant hath right by this that his ancestor held the land in demand, and was thereof seised as of right and fee; and then the demandant must count of the descent of kin descending to himself. It happeneth also that a man demiseth land for term of life or years, after which term the land ought to revert to himself or his heirs, or likewise that it ought to revert to him after the death of a woman tenant in dower, or as an escheat after the death of his tenant being a bastard, because such an one cannot have other heir than one lawfully begotten of his own body; or after the death of his tenant who hath' committed felony in any of the afore cases aforesaid, or where after the death of any one the land ought to remain unto another by the form of the gift in these cases, and the like, the demandant shall declare his demand according to his case, and in these cases and the like wherein the aforesaid writ is to be used, that and none other shall be used ; and the demandant's count being heard, the tenant shall have a view of the land if he require it, and a day shall be given within which the view shall be had, and at the day given after the view the deforciant shall make answer who may vouch to warranly by the aid of the court, as it hath been said in the writ of mortdauncester, and the justice shall cause the warrantor to come as he caused the principal by one summons, and if it be necessary, by a second and a third, at which if he come not, he beivg punished upon every default as is aforesaid, seisin of the thing in question shall be awarded to the demandant for the default of the warrantor, and the deforciant shall have to the value of the land of the warrantor, and the warrantor shall be in mercy. If the warrantor come and freely warrant, he shall be received to answer and defend the plea without having a view of the land. But if he shrall deny the warranty, the plea of the warranty shall be carried on between them after the manner above directed in the writ of mortdauncester ; but if the deforciant except against the demandant that his ancestor whose seisin he demandeth or any one in the descent were a bastard, so that nothing can descend from him or through him, he shall be heard, or he may shew a deed of feoffment of his ancestor, or of quit claim of any one in the descent; and upon

the affirmation of the one party and the denial of the other, the parties shall descend to the lawful inquest, and by the verdict of the inquest shall the plea be determined, because pleas of land in those parts are not to be determined by battle, por by the grand assize. So if he should accept that the ancestor or any one in the descent committed felony whereby the action lieth not for him, in which case, if he to whom this is opposed denieth it, the matter ought rather to be determined by the record of the justice, or of the inquest of the country of the hanging and beheading; and also by the record of the coroner of the outlawry and abjuration : in like manner on the demand of a tenement that ought to revert after a term past, or by the condition of the gift upon the affirmation of the one party and the denial of the other, they shall descend to the inquest of the country, and according to their verdict shall the judgment be.

Concerning the other article, to wit, of moveables, debis, and chattels, it remaineth to speak; for which there is provided the writ of debt in the form above written. In this writ, the proceeding shall be after this manner ; Pirst, there being found pledges to prosecute the debtor, and

No. II. defendant shall be summoned to be before the justice at a certain day, 12 Edward L. at which, if he come pot, he shall be summoned again, and if at the

second day be come not, nor essoign himself, the debt shall be adjudged to the plaintiff by default, together with damages at the discretion of the justice, or by the inquest of the country at the will of the justice ; and the debtor shall abide in the King's mercy, reserving always to the King the amercement for every default. But if the debtor appear, the plaintiff must then declare his demand, and the cause of his demand, that is to say, that he is indebted unto him in an hundred marks, which he lent him, the day of payment whereof is past; or for land, or an horse, or for other goods or chattels whatsoever sold to him; or for the arrears of a rent not growing out of tenements, or upon other contracts wbereapon he must produce his suit, or shew the deed of obligation, or tally the demand, being heard and understood, and also the declaration of the plaintiff, the debtor shall answer thereto ; and if he acknowledge the debt, judgment shall be given against him, and it shall be levied of his goods and chattels, &c. if he deny the debt, and his bond be brought forth against him, the writing must be verified by the witnesses named in the bond, if they be living, together with the jury; and if there be no witnesses named, or if they should be dead, it shall be verified by the jury only, and according to their verdict sball judgment be awarded. But if the plaintiff have not a bond, but produce his suit only, or a tally, the adverse party may deny that he is indebted to him in any thing, and make his defence by wager of law, that is, by his own oath and eleven others swearing with him, or by the country at his election. It happeneth sometimes that the debtor confesseth that he did once owe the debt, and allegeth payment thereof; in this case he must shew an acquittance of the payment, or else the plaintiff may deny by wager of law that he hath received ought, or likewise by the country, &c. This writ of debt shall not be granted for a less sum than forty shillings; for of a less debt the plea shall be in the county court either with writ or without,

Concerning the third article, in which there is provided the writ of covenant, whereby sometimes moveables are demanded, and sometimes immovcables by force of a covenant entered into between the parties which may differ from the law in the form described in the place before named. The proceeding upon this writ is thus: First, there being found pledges to prosecute, the defendant shall be summoned once, and if it be necessary a second time, and if he come not upon the second summons nor essoign himself, the demand and declaration of the plaintiff shall be heard, and the thing demanded shall be taken into the King's hand if it be a tenement, and if it be a chattel, that or its value shall be taken into the King's hand, and another day shall be given him. And if within fifteen days he shall replevy the thing so taken into the King's hand, and appear at the day given him, he shall be received to answer and defend; but if not, the plaintiff's demand shall be awarded to him by default, together with damages taxed as is said before in the writ of debt. And he shall remain in the King's mercy, saving always to the King the amercement for the default as aforesaid. The plaintiff's complaint being heard, and the declaration of his demand, the defendant shall make answer ; and upon the affirmation of the one party, and the denial of the other, they shall proceed to the inquest, and the business shall be determined by the inquest of the country. And it is to be known that sometimes a freebold is demanded by the writ of covenant ; as where any man letteth land to another to farm, rendering therefore a certain rent under a condition added thereto in the writing of covenant, that if he be not satisfied for the rent it shall be lawful for him to enter into the land that he hath demised, and to hold the same: if he to whom the land hath been demised do not pay the rent, and he who hath demised it hath not the means of entering into the land demised according to the tenor of his writing by reason of the power of his adversary, in this case he ought to recover the tenement by the writ of covenant, together with damages. Where sometimes a covenant is made between parties, that the one shall infeoff the other of a certain tene- No. II. ment, and shall deliver seisin unto him at a certain day, if afterwards 12 Edward I, he should transfer that tenement by feoffment to a third person, since he cannot annul that feoffment by virtue of the first contract that was pot carried into effect, in that case the injured party cannot have other redress by writ of covenant but this only that he have a satisfaction in money for his damages; and thus in one case there lieth an action to demand a tenement by writ of covenant, and in another case money or damages, or the tenement. And for that contracts in covenants are infaite, it would be difficult to make mention of each in particular: but, according to the nature of each covenant by the affirmation of the one party and the denial of the other, it will either come to be tried by inquest upon the fact, or it will come to an acknowledgment of the writings brought into judgment, and according to that acknowledg; meat judgment will be awarded ; or the writings will be denied, and then it will come to an inquiry into the making of the writings by the witnesses named in the writings if there be such, together with the jury : And if there should be no witnesses named, or they should be dead, then by the jury only.

Concerning the fourth article, to wit, personal trespasses; whereof it is provided, that all trespasses wherein the damages do not exceed forty shillings shall be pleaded before the sheriff in the county court without writ by gages and pledges: trespasses that exceed the sum of forty shillings shall be pleaded before the justice of Wales after this manner : The plaintiff, before he be heard by the justice, shall swear that his demand exceedeth the sum of forty shillings, and this being done, and pledges to prosecute found, the justice shall command the sheriff or bailiff of the place that he cause to come before him within a short term bim of whom complaint is made ; and the plaintiff's complaint being heard, the defendant shall make his answer: 'And since in a plea of trespass the defendant can hardly do otherwise than make his defence by the country, the justice by consent of parties shall make inquiry of the truth by lawful inquest; and that inquiry made, if he find the defendant guilty, he shall punish him by imprisonment, or by ransom, or by amercement and payment of damages to the injured party according to the quality and quantity of the offence; so that this punishment be for example to others, and make them fear to offend : And whereas mention is made above of the consent of parties, it may happen that the defendant will refuse the trial by the country ; in which case if the plaintiff offer to verify the trespass done unto him by the country, and the defendant refuse the same, be shall be taken for convict, and shall be punished as though he were convict by the country.

And whereas heretofore women have not been endowed in Wales, the King granteth that they shall be endowed. The dower of a woman is two-fold: one is an assignment of the third part of the whole land that beloogeth to her husband which were his during coverture, whereof there lieth the writ of reasonable dower elsewhere described in its place, with the other writ for Wales. The proceeding in this writ is thus : There being found pledges to prosecute, the deforciant shall be summoned lo appear at a certain day, at which, if he come not, he shall be summoned again; at which day, if he come not, the woman shall have her dower awarded unto her ; that is to say, the third part, &c., together with damages, &c.; but if the defendant appear, he shall be received to answer without having a view of the land, and the woman's demand-being made, the tenant shall be directed to answer if he can allege any thing wherefore she ought not to have her dower ; and if he can allege nothing the woman shall recover as above. If he should object that she ought not to have her dower because she was never espoused in lawful matrimony to him whom she calleth her husband, then the bishop shall be charged to make inquiry of the truth thereof; and that inquiry made, he shall certify it to the justice of Wales. And according to the bishop's certificate shall the proceeding to judgment be after this manner: If the bishop certify that she was not the lawful wife, she shall be foreclosed of

[ocr errors][merged small]

No. II.

her action of dower ; if he certify that she was the lawful wife, the 12 Edward I. tenant shall be summoned to appear at a certain day to hear his judge

ment, at which day if he come not he shall be summoned unto another
day; at which day whether he come or not there being no essoign allowed
the woman shall recover her dower and damages, and the tenant in
mercy. Saving always to the King the amercement for default. But if
he object that she ought not to have her dower because her husband did
not hold the tenement whereof she demandeth dower, either on the day
when he married her or at any time after in fee, so that he could thereof
have endowed her; the truth of this fact is to be inquired of by the
country only, and according to their verdict shall the judgment be
awarded. If it be objected unto her that she ought not to have her
dower because her husband committed felony, then, if the felony be
proved, she shall not recover dower. So if it be objected unto her that
her husband lost the land whereof she demandeth dower by judgment as
that whereunto he had not right, if this be denied and be proved by the
record of the justices before whom that land was lost, or by the country,
if it were lost in the country or inferior court, she shall be precluded
from baving her action of dower. The other dower is when a son en-
doweth his wife by the assent of his father, the form of the writ whereof
is to be found among the rest, wherein the proceeding is after this man-
ner :- The deforciant shall be summoned as in the other writ of dower,
and in like manner his contumacy shall be punished as in the other writ
of dower : but if he come at the day given him, then the woman's de-
mand being made, he shall answer thereto; and if the endowment made
in the said form and the consent to the dower be denied, and it be
established by the country that the husband did endow her at the church
door of his father's tenement; and that the father, in his own person or
by a special messenger therefore sent, did consent to that dower, the
woman shall recover her dower and damages. It is also to be known
that in either writ the tenant may vouch to warranty with the aid of
the court, and the proceeding in the plea of warranty shall be as is
before directed : but there is a difference between this case of dower
and that above by præcipe, where the mode of proceeding endeth in
the warranty, because there the demandant in that case always recover-
eth the thing demanded, and the tenant out of the land of the warrantor
to the value. Io the case of dower it is otherwise, because the tenant
will keep his land in peace, and the woman will have to the value of her
dower demanded out of the laud of the warrantor, provided that the
tenant hath of the land of her husband to the value whereby this may be
done ; but if otherwise not. Concerning other assignment of dower
there is nothing said for the present.

Whereas the custom is otherwise in Wales than in England concerning
succession to an inheritance, inasmuch as the inheritance is partible
among the heirs male, and from time whereof the memory of man is not
to the contrary, hath been partible; our Lord the King will not have
that custom abrogated ; but willeth that inheritances shall remain parti-
ble among like heirs as it was wont to be, and partition of the same
inheritance shall be made as it was wont to be made; with this excep.
tion, that bastards from henceforth shall not inherit, and also shall not
have portions with the lawful heirs, nor without the lawful heirs. And
if it happen that any inheritance should hereafter upon the failure of
heir male descend unto females, the lawful heirs of their ancestor last
seised thereof, we will of our special grace that the same women shall
have their portions thereof to be assigned them in our court, although
this be contrary to the custom of Wales before used.

And whereas the people of Wales have besought us that we would grant unto them, that concerning their possessions immoveable, as lands and tenements, the truth may be tried by good and lawful men of the neighbourhood, chosen by consent of parties; and concerning things moveable as of contracts, debts, sureties, covenants, trespasses, chattels, and all other moveables of the same sort, they may use the Welsh law whereto they have been accustomed; which was this, that if a man

[ocr errors]

complain of another upon contracts or things done in such a place that No. II. the plaintiff's case may be proved by those who saw and heard it, when 12 Edward I. the plaintiff shall establish' his case by those witnesses whose testimony cannot be disproved, then he ought to recover the thing in demand, and the adverse party be condemned ; and that in other cases which cannot be proved by persons who saw and heard, the defendant should be put to bis purgation, sometimes with a greater number, sometimes with less, according to the quality and quantity of the matter or deed. And that in theft if one be taken with the mainour he shall not be admitted to purgation, but be holden for convict. We, for the common peace and quiet of our aforesaid people of our land of Wales, do grant the premises unto them: yet so that they hold not place in thefts, larcenies, burnings, murders, manslaughters, and manifest and notorious robberies, nor do by any means extend unto these ; wherein we will that they shall use the laws of England as is before declared.

And therefore we command you that from henceforth you do stedfastly observe the premises in all things. So notwithstanding, that whensoever and wheresoever, and as often as it shall be our pleasure, we may declare, interpret, enlarge, or diminish the aforesaid statutes, and the several parts of them according to our mere will, and as to us shall seem expedient for the security of us and of our land aforesaid.

In witness whereof our seal hath been affixed to these presents. Given at Rothelan, on Sunday in Midlent, in the twelfth year of our reign.

[ No. III.1 28 Edward III. c. 2.- Lords of the Marches

of Wales shall be attendant to the Crown of England,

and not to the Principality of Wales. :ITEM it is accorded and established; That all the lords of the 28 Edward III. *the crown of England, as they and their ancestors have been all times • past, and not to the principality of Wales, in whose hands soever the • same principality be, or hereafter shall come.'

c. 2.

[ No. IV.] 1 Henry IV. c. 18.—Process against one of

the county of Chester, which committeth an offence in

another Shire. “ TEM, Upon the grievous clamour and complaint made to our Lord 1

1 Henry IV. the King in this present Parliament, of many nuurders, manslaugh- c. 18. “ ters, robberies, batteries, and other riots, and offences, which before What process " this time have been done by people of

the county of Chester to divers shall be award“ of the King's liege people in divers parts and counties of England;" ed where one of

the same our Lord the King, by the advice and assent of his Lords the county of • Spiritual and Temporal, and of his Commons aforesaid, hath ordained

Chester doth • and established, That if any person of the county of Chester, resident in another

commit felony or dwelling within the same county, of what estate or condition he be,

county. . do commit any murder or felony in any place out of the same county, process shall be made against him by the common law, till the exigent, in the county where such murder or felony was done. And if he flee • from thence into the county of Chester, and be outlawed and put in

exigent for such murder or felony, the same outlawry or exigent • shall be certified to the officers and ministers of the same county of Chester, and the same felon shall be taken by the same officers or mi“ nisters, and his lands and tenements, goods and chattels, being within • the same county of Chester, shall be seized as for into the hands of • the Prince, or of him that shall be Lord of the same county of Chester • for the time, and the King shall have the year and day, and the waste ; * and the other lands and tenements, goods and chattels of such felon, • being out of the said county of Chester, shall remain wholly to the

« PreviousContinue »