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No. II. 52 Hen. III.
* took the beasts, if they were taken out of liberties. And if the beasts
were taken within any liberties, and the bailiffs of the liberty will not • deliver them, then the sheriff, for default of those bailiffs, shall cause • them to be delivered.'
[ No. III.) 3 Edward I. (Westminster first) c. 16.
None shall distrain out of his Fee, nor drive the Dis
tress out of the County. 3 Edward I. I right thereof, that some persons take and cause
to be taken, the beasts of others; chasing them out of the shire where the beasts A distress shall were taken;" it is provided also, that none from henceforth do so ; not be driven • and if any do, he shall make a grievous fine, as is contained in the out of the • statute of Marlebridge, made in the time of King Henry, father to county. 'the king that now is. And likewise it shall be done to them which Distraining out · take beasts and distrain out of their fee, and shall be more grievously of his fee. * punished, if the manner of the trespass do so require.'
[ No. IV.). 3 Edward I. c. 17.-The Remedy if the Dis
tress be impounded in a Castle, or Fortress. 3 Edward I. : IT is provided also, That if any from henceforth take
the beasts of other, and cause them to be driven into a castle or fortress, and • there within the close of such castle or fortress do withhold them • against gage and pledges, whereupon the beasts be solemnly demanded
by the sheriff, or by some other bailiff of the King's, at the suit of
• beaten down without recovery; and all the damages that the plaintiff A non omittas
• hath sustained in his beasts, or in his gainure, or any otherwise (after to the sheriff • the first demand made by the sheriff or bailiff) of the beasts shall be if the bailiff do restored to him double by him that took the beasts, if he have whereof; not execute the 'and if he have not whereof, he shall have it of the lord, at what time writ.
or in what manner the deliverance be made, after that the sberiff or bailiff shall come to make deliverance ; and it is to wit, that wbere • the sheriff ought to return the King's writ to the bailiff of the lord of * the castle or fortress, or to any other to whom the return belongeth, • if the bailiff of the franchise will not make deliverance after that the
sheriff hath made his return unto him, then shall the sheriff do his • office without further delay, and upon the foresaid pains, And in • like manner deliverance shall be made by attachment of plaint made
without writ, and upon the same pain. And this is to be inten:led in Marches of • all places where the King's writ lieth. And if that be done in the Wales, • marches of Wales, or in any other place where the King's writs be
not current, the King; which is sovereign lord over all, shall do right
there unto such as will complain.' of opinion that that case does not furnish a rule crown, and in which pleas of replevin upon for replevins in other courts, which owe their plaint, without writ, may be maintained, origin and jurisdiction to charters from the
[ No. V. ] 6 Edward I. (Gloucester) c. 5.-Several Te.
nants against whom an Action of Waste is maintainable.
[Inserted Part II. Class I. No. 7.]
No. V. 6 Edward I.
[ No. VI. ] 13 Edward I. (Westminster second) c. 2.
A Recordare to remove a Plaint. Pledges to prosecute
a Suit. Second Deliverance. FORASMUCH as lords of fees distraining their tenants for services 13 Edward 1. and customs due unto them, are many times grieved because
c. 2. “their tenants do replevy the distress by writ or without writ: And The mischiefs “ when the lords, at the complaint of their tenants, do come by attach- which lords “ment into the county, or unto another court, having power to hold distraining "pleas of Withernam, and do avow the taking good and lawful, by their tenants “ reason that the tenants disavow to hold ought, nor do claim to hold did suffer. " any thing of him which took the distress and avowed it, he that dis“ trained is amerced, and the tenants go quit; to whom punishment “caonot be assigned for such disavowing by record of the county, or " of other courts having no record.”.
• Il. It is provided and ordained from henceforth, That where such A recordare to • lords cannot obtain justice in counties and such manner of courts remove a plaint . against their tenants, as soon as they shall be attached at the suit of out of the coun• their tenants, a writ shall be granted to them to remove the plea be- ty. 'fore the justices afore whom, and none other where, justice may he * ministered unto such lords ; and the cause shall be put in the writ, • wherefore such a man distrained in bis fee for services and customs to
him due. Neither is this Act prejudicial to the law commonly used, · which did not permit that any plea should be moved before justices at • the suit of the defendant. For though it appear at the first shew that • the tenant is plaintiff, and the lord defendant, nevertheless, having respect to that, that the lord hath distrained, and sueth for services and customs being behind, he appeareth indeed to be rather actor, or plaintiff, than defendant. And to the intent the justices may know upon what fresh seisin the lords may avow the distress reasonable upon their tenants; from henceforth it is agreed and enacted, That a rea• sonable distress may be avowed upon the seisin of any ancestor or
predecessor since the time that a writ of novel disseisin hath run. And • because it chanceth sometime that the tenant, after that he hath re• plevied bis beasts, doth sell or alien them, whereby return cannot be • made unto the lord that distrained, if it be adjudged :
• III. It is provided, That sheriffs or bailiffs from henceforth shall not Pledges to proonly receive of the plaintiffs pledges (1) for the pursuing of the suit, secute the suit • before they make deliverance of the distress, but also for the return and to make • of the beasts, if return be awarded. And if any take pledges other- return. • wise, he shall answer for the price of the beasts, and the lord that dis• traineth shall have his recovery by writ, that he shall restore unto him * so many beasts or cattle ; and if the bailiff be not able to restore, his * superior shall restore. And forasmuch as it happeneth sometime, that • after the return of the beasts is awarded unto the distrainor, and the
party so distrained, after that the beasts be returned, doth replevy • them again, and when he seeth the distrainor appearing in the court * ready to answer him, doth make default, whereby return of the
beasis ought to be awarded again unto the distrainor, and so the beasts • be replevied twice or thrice, and infinitely, and the judgments given • in the King's court take no effect in this case, whereupon no remedy
(1) The sheriff is answerable for the suffi- ciency of the pledges, but very slight evidence ciency of the pledges ; Richards v. Acton, 2 is sufficient to throw the burihen on the sheBI. 1220; Rons v. Patterson, 16 Vin. Ab. 399. riffs ; Saunders v. Darling, B. N. P. 60. Soine evidence must be given of the insufli- post. 11 G. II. c. 19, sec. 23, and Notes.
No. VI. hath been yet provided : in this case such process shall be awarded, 13 Edward I. ' that so soon as return of the beasts shall be awarded to the distrainor, c. 2. • the sheriff shall be commanded by a judicial writ to make return of
• the beasts unto the distrainor; in which writ it shall be expressed that · the sheriff shall not deliver them without writ, making mention of the judgment given by the justices, which cannot be without a writ
• issuing out of the rolls of the said justices before whom the matA writ of se- • ter was moved. Therefore when he cometh unto the justices, and cond deliver
• desireth replevin of the beasts, he shall have a judicial writ, that the sheriff taking surety for the suit, and also of the beasts or cattle to be returned, or the price of them (if return be awarded) shall deliver unto him the beasts or cattle before returned, and the distrainor shall be
• attached to come at a certain day before the justices, afore whom the A distress irre- 'plea was moved in presence of the parties. And if he that replevied pleviable. • make default again, or for another cause return of distress be awarded,
• being now twice replevied, the distress shall remain irrepleviable ; but • if a distress be taken of new, and for a new cause, the process abovesaid shall be observed in the same new distress.'
[ No. VII.] 25 Edward III. stat. 5. c. 17.–Process of
Exigent shall be awarded in Debt, Detinue, and
(This at length, Part IV. Class III. No. 8.]
[ No. VIII. ] 7 Henry VIII. c. 4.-An Act concerning
Avowries for Rents and Services. 7 Henry VIII.
HEREAS divers, as well noblemen as other the King's subjects, c. 4.
have suffered recoveries against them of divers their manors, How rents and lordships, lands, and tenements, for the performance of their wills, or services may • for the surety of their wives' jointures, or for the jointure of their be recovered sons and heirs apparent, and their wives, or of any other person or by avowry.
persons, according to their covenants and agreements, and those persons • that so have recovered the said manors by the course of the common • law, had no remedy, nor may have, to compel the fermors, freehold• ers, and tenants, which held of the same manors by rents, services, or • customs, to atturn to them ; nor could by the order of the law attain • to the said rents, services, or customs (if they were denied) by distress
or action, without they could once attain to the possession of the * same rents, services, and customs, by paying or doing the said rents, • services or customs, by the same freeholders, fermors and tenants ; • which to do, divers and many of them have oftentimes refused, and . yet do, to the great offence and charge of their conscience, not only • to the disheritance of the said recoverers, but also in breaking of the • last wills of them against whom such recovery is had, and also to the • disheritance of the said husband and wife, or other to whose use the same recovery was so had. Also if there were any advowson append. ant to any of the said manors, the same advowson had fallen void, and a stranger had presented, the said recoverers, nor they to whose use • the same recoveries were had, had no remedy for the same disturb
ance, and sometime thereby they have been disinherited.' Recoverer may
II. Be it therefore enacted by this present parliament, and by authodistrain and rity of the same, That the recoverers in all such recoveries, their heirs shall have a and assigns, may from henceforth distrain for the foresaid rents, serquare impedit. vices and customs, so being due and unpaid, and make avowry, or jus,
tify the same, as those persons against whom the said recovery is, should have done if the said recovery had not been had; and also have like remedy for the recovering of the said rents, services, and customs by avowry; and also a quare impedit for the said advowson, if any disturbance he made ; as those persons against whom the said recoveries were
had, might or should have had by the course of the common law afore No. VIII. the said recovery, if any such rents, services, or custoips had been 7 H. VIII, denied them, or any such disturbance had been had in their times.
III. And also that every avowant, and every other person or persons that make avowry, conisance, or knowledge, or justify, as baily to any other person or persons in any replegiari, or second deliverance for Arowant shall
recover his da. any rent, custom, or service, if their avowry, conisance, or justification be found for him, or the plaintiffs in the said actions otherwise mages, &c, barred, shall recover their damages and costs that they have sustained, as the plaintiff should have done if they had recovered in the said replevins.
[ No. IX. ] 21 Henry VIII. c. 19.-Avowries shall be
made by the Lord upon the Land, without naming his
sons, by fines, recoveries, grants, and secret feoffments, and c. 19, leases made by their tenants to persons unknown, of the lands and • tenements holden of them, have been put from the knowledge of their
tepants, upon whom they should by order of the law make their avow, ries for their rents, customs and services, to their great losses and hindrances :
II. Be it therefore enacted, established, and ordained by authority of An avowry this present Parliament, That wheresoever any manor lands, tenements, may be made and other hereditaments be holden of any manner person or persons, by by the lord uprents, customs, or services, that if the lord, of whom any such manor on the land. lands, tenements or hereditaments be so holden, distrain upon the same
holden of him
without nammanors, lands, or tenements, for any such rents, customs, or services, and replevin thereof be sued, that the lord of whom the same lands, ing his tenant. tenements or hereditaments be so holden, may avow, or bis bailiff or servant make conisance, or justify, for taking of the said distresses upon the same lands, tenements, or heredilaments so holden, as in lands or tenements within bis fee or seignory, alleging in the said avowry, conisance, and justification, the same manors, lands, and tenements to be holden of him(1) without naming of any person certain to be tenant of the same, and without making any avowry, justification, or conisance upon any person certain ; and likewise the lord, baily, or Avowry in seservant to make avowry, justification, or conisance, in like manner cond deliverand form upon every writ sued of second deliverance.
III. And also be it enacted by the said authority, That every avowant, The arowant and every other person or persons that make any such avowry, justifi- shall recover cation, or conisance, as baily or servant to any person or persons in damages and any replegiare or second deliverance, for rents, customs, services, or costs of suit. for damage fesant, or other rent or rents, upon any distress taken in any lands or tenements, if the same avowry, conisance, or justification be found for them, or the plaintiffs in the same be nonsuit, or otherwise barred, that then they shall recover their damages and costs(2) against the said plaintiffs, as the same plaintiffs should have done or had, if they had recovered in the replegiare or second deliverance found against the said defendants.
IV. And be it also ordained, That the said plaintiffs and defendants Like pleas and in the said writs of replegiare, or writs of second deliverance, and in aid prayers at
the common law. (1) To an avowry upon the statute the plain the insufficiency of the plea, the defendant is tiff cannot plead non tenuit generally, but he not entitled to any costs subsequent to the plea. may plead all other pleas as at common law; Per Rooke, J. "The statute was not intended Paramor v. Chapman, Cro. Jae. 127.
to give costs to an avowant in replevin in a (2) If the plaintiff plead a bad plea in bar, different manner from what they are given by and the defendant, instead of demurring, re- other statutes in other actions ;" Da Costa v. plies, and after verdict for the plaintiff, judg- Clarke, 2 B, and P. 376. ment is given for the defendant, on account of
No. IX. every of them, shall have like pleas, and like ard-prayers in all such 21 Hen. VIII. avowries, conisances, and justifications (pleas of disclaimer only ex
cept) as they might have had before the making of this Act, and as though the said avowry, conisance, or justification had been made after
the due order of the common law. Like joinder in V. And it is further enacted by the said authority, That all such peraids as at the sons as by the order of the common law may lawfully join to the plaincommon law, tiffs or defendants in the said writs of replegiare, or second deliverance, as well without
process as by process, shall from henceforth join unto the said plaintiffs or defendants, as well without process as by process, and to have like pleas, and like advantages in all things (disclaimer only except) as they might have done by the order of the common law before the making of this Act.
[ No. X. ] 32 Henry VIII. c. 28.—Lessees to enjoy the
Farm against the Tenants in Tail.
[Inserted Part II. Class VIII. No. 1.)
[ No. XI. ] 32 Henry VIII. c. 31.-Concerning Grantees
of Reversions to take Advantage of the Conditions to be performed by the Lessees.
[Inserted Part II. Class I. No. 14.]
[ No. XII. ] 32 Henry VIII. c. 37.-For Recovery of
Arrearages of Rents by Executors of Tenant in Fee
Simple. 32 Henry VIII. : FORASMUCH as by the order of the common law the executors or .
administrators of tenants in fee-simple, tenants in fee-tail, and • tenants for term of lives, (1) of rents services, rents charges, rents • secks, and fee-farms, (2) have no remedy to recover such arrearages • of the said rents or fee-farms as were due unto their testators in their • lives, nor yet the heirs of such testator,' nor any person having the • reversion of bis estate after his decease, may distrain, or have any • lawful action to levy any such arrearages of rents or fee-farms, due • unto him in his life as is aforesaid ; by reason whereof, the tenants of • the demean of such lands, tenements or hereditaments, out of the • which such rents were due and payable, who of right ought to pay their
rents and farms at such days and terms as they were due, do many • times keep, hold and retain such arrearages in their own hands, so • that the executors and administrators of the persons to whom such *rents or fee-farms were due, cannot have or come by the said arrear
ages of the same, towards the payment of the debts and performance • of the will of the said testators;' For remedy whereof, be it enacted by the authority of this present Parliament, That the executors and
(1) The province of the Act is not confined from which it may be inferred, that he thought to executors of tenants, pur autre vie, but a rent reserved upon a lease for years was not extends to the executors of all tenants for life; within it; and I apprehend that it is not; for Hool v. Bell, I Lord Raym. 172. Creditor by the landlord is not tenant in fee, &c. of such elegit of tenant for life of a rent charge is not a rent, and it is the executors of such tenants within the Act; B. N. P. 56.: nor the execut- only who are mentioned in the Act. However, ors of a grantee of a rent-charge for years, if in trespass, where it appeared that the dehe so long live; id. ibid. The Act does not fendant had distrained the plaintiff's goods for extend to copyhold rents ; Yelv. 135.
rent due to his testator, upon a lease for years, (2) In Buller, N. P. 57. is the following Lord Chief Justice Lee held it to be within the passage :-“ Lord Coke says, if a man make the statute, and the defendant had a verdict; lease for life, or a gift in tail, reserving a Powell v, Kellick, Westm. M. 25 Geo. II.” rent, this is a rent service within the statute;