No. II.

52 Hen. III.

c. 21.

3 Edward I. c. 16.

not be driven

'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 Distress out of the County.

66

IN 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; and if any do, he shall make a grievous fine, as is contained in the 'statute of Marlebridge, made in the time of King Henry, father to '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 punished, if the manner of the trespass do so require.'

out of the county.

of his fee.

c. 17.

[No. IV. ] 3 Edward I. c. 17.-The Remedy if the Distress be impounded in a Castle, or Fortress.

3 Edward I. T 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 the plaintiff, the sheriff or bailiff, taking with him the power of the *shire or bailiwick, do assay to make replevin of the beasts from him 'that took them, or from his lord, or from other, being servants of the lord (whatsoever they be) that are found in the place whereunto the 'beasts were chased; if any deforce him of the deliverance of the 'beasts, or that no man be found for the lord, or for him that took them, for to answer and make the deliverance, after such time as the lord or taker shall be admonished to make deliverance by the sheriff ⚫ or bailiff, if he be in the country, or near, or there whereas he may be conveniently warned by the taker, or by any other of his to make ' deliverance; if he were out of the country when the taking was, and 'did not cause the beasts to be delivered incontinent, that the King for ⚫ the trespass and despite, shall cause the said castle or fortress to be beaten down without recovery; and all the damages that the plaintiff hath sustained in his beasts, or in his gainure, or any otherwise (after the first demand made by the sheriff or bailiff) of the beasts shall be if the bailiff dorestored 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 sheriff or 'bailiff shall come to make deliverance; and it is to wit, that where '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 intended in all places where the King's writ lieth. And if that be done in the '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.'

A non omittas to the sheriff

Marches of
Wales.

of opinion that that case does not furnish a rule for replevins in other courts, which owe their origin and jurisdiction to charters from the

crown, and in which pleas of replevin_ upon plaint, without writ, may be maintained,

No. V.

[No. V. ] 6 Edward I. (Gloucester) c. 5.-Several Te- 6 Edward I. nants against whom an Action of Waste is maintainable.

[Inserted Part II. Class I. No. 7.]

c. 5.

c. 2.

[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 "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.

66

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 "cannot be assigned for such disavowing by record of the county, or "of other courts having no record."

II. 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 countheir 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 his 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 replevied his 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 only receive of the plaintiffs pledges (1) for the pursuing of the suit, 'before they make deliverance of the distress, but also for the return of the beasts, if return be awarded. And if any take pledges other wise, he shall answer for the price of the beasts, and the lord that distraineth 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 'beasts 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

Pledges to prosecute the suit and to make return.

(1) The sheriff is answerable for the sufficiency of the pledges, but very slight evidence ciency of the pledges; Richards . Acton, 2 Bl. 1220; Rous v. Patterson, 16 Vin. Ab. 399. Some evidence must be given of the insuffi

is sufficient to throw the burthen on the sheriffs; Saunders v. Darling, B. N. P. 60. See post. 11 G. II. c. 19, sec. 23, and Notes.

No. VI.

13 Edward I.

c. 2.

'hath been yet provided: in this case such process shall be awarded, that so soon as return of the beasts shall be awarded to the distrainor, '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 mat'ter was moved. Therefore when he cometh unto the justices, and '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

A writ of second deliverance.

c. 4.

How rents and

services may be recovered by avowry.

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 Replevin.

[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. WHEREAS divers, as well noblemen as other the King's subjects, have suffered recoveries against them of divers their manors, lordships, lands, and tenements, for the performance of their wills, or for the surety of their wives' jointures, or for the jointure of their sons and heirs apparent, and their wives, or of any other person or 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, freeholders, 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 6 a stranger had presented, the said recoverers, nor they to whose use the same recoveries were had, had no remedy for the same disturbance, and sometime thereby they have been disinherited.'

Recoverer may

distrain and shall have a

II. Be it therefore enacted by this present parliament, and by authority of the same, That the recoverers in all such recoveries, their heirs and assigns, may from henceforth distrain for the foresaid rents, serquare impedit. vices and customs, so being due and unpaid, and make avowry, or justify 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

No. VIII.

7 H. VIII.

c. 4.

had, might or should have had by the course of the common law afore the said recovery, if any such rents, services, or customs had been 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 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 Tenant.

Avowant shall recover his da

c. 19.

WHERE as well the noblemen of this realm, as divers other per- 21 Henry VIII. sons, by fines, recoveries, grants, and secret feoffments, and leases made by their tenants to persons unknown, of the lands and ⚫ tenements holden of them, have been put from the knowledge of their ' tenants, 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 :'

An avowry

may be made by the lord upon the land

holden of him without nam

II. Be it therefore enacted, established, and ordained by authority of this present Parliament, That wheresoever any manor lands, tenements, and other hereditaments be holden of any manner person or persons, by rents, customs, or services, that if the lord, of whom any such manor lands, tenements or hereditaments be so holden, distrain upon the same manors, 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 his bailiff or servant make conisance, or justify, for taking of the said distresses upon the same lands, tenements, or hereditaments so holden, as in lands or tenements within his 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 servant to make avowry, justification, or conisance, in like manner and form upon every writ sued of second deliverance.

III. And also be it enacted by the said authority, That every avowant, and every other person or persons that make any such avowry, justification, or conisance, as baily or servant to any person or persons in any replegiare or second deliverance, for rents, customs, services, or 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.

Avowry in second deliver

ance.

The avowant shall recover damages and costs of suit.

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

(1) To an avowry upon the statute the plain tiff cannot plead non tenuit generally, but he may plead all other pleas as at common law; Paramor v. Chapman, Cro. Jac. 127.

(2) If the plaintiff plead a bad plea in bar, and the defendant, instead of demurring, replies, and after verdict for the plaintiff, judgment is given for the defendant, on account of

the common law.

the insufficiency of the plea, the defendant is not entitled to any costs subsequent to the plea. Per Rooke, J. "The statute was not intended to give costs to an avowant in replevin in a different manner from what they are given by other statutes in other actions;" Da Costa v. Clarke, 2 B. and P. 376.

No. IX.

21 Hen. VIII.

c. 19.

Like joinder in aids as at the common law.

every of them, shall have like pleas, and like aid-prayers in all such avowries, conisances, and justifications (pleas of disclaimer only except) 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.

V. And it is further enacted by the said authority, That all such persons as by the order of the common law may lawfully join to the plaintiffs 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. 34.-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 fce-simple, tenants in fee-tail, and

c. 37.

⚫ 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 his 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 arrearages 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 to executors of tenants, pur autre vie, but extends to the executors of all tenants for life; Hool v. Bell, 1 Lord Raym. 172. Creditor by elegit of tenant for life of a rent charge is not within the Act; B. N. P. 56.: nor the executors of a grantee of a rent-charge for years, if he so long live; id. ibid. The Act does not extend to copyhold rents; Yelv. 135.

(2) In Buller, N. P. 57. is the following passage:"Lord Coke says, if a man make lease for life, or a gift in tail, reserving a rent, this is a rent service within the statute;

from which it may be inferred, that he thought a rent reserved upon a lease for years was not within it; and I apprehend that it is not; for the landlord is not tenant in fee, &c. of such a rent, and it is the executors of such tenants only who are mentioned in the Act. However, in trespass, where it appeared that the defendant had distrained the plaintiff's goods for rent due to his testator, upon a lease for years, Lord Chief Justice Lee held it to be within the the statute, and the defendant had a verdict; Powell v. Kellick, Westm. M. 25 Geo. II,"