No. II.

12 Edward I.

Writs of mortdauncester.

and lawful men of that neighbourhood to view that tenement, and their names to be put in writing, and summon them by good summoners that they be then before our justice aforesaid, ready to make recognition thereof; and put by gage and safe pledges the aforesaid B. and C., or their bailiffs if they be not found, that they be then there to hear that recognition; and have there the summoners, the names of the pledges, and this writ, dated at Carnarvon, such a day and ' year.' [or elsewhere.]

For Novel Disseisin of common of pasture.

A. hath complained unto us that B. and C. unjustly, &c. have disseised him of his common of pasture in N., that is appurtenant to his freehold in the same town; or in another if so be the case, after our peace, &c. And therefore we command you that if the aforesaid A. shall give you security, &c. then you shall cause twelve free, &c. to view that pasture and the tenement, and their names to be put in writing; and summon them by good summoners to come before the aforesaid justice, &c. ready to make recognition thereof; and put by gage and safe pledges the aforesaid B. and C. or their bailiffs, if they be not found, that they be then there to hear that recognition. And ' have there, &c. dated, &c.' Or thus:- A. hath complained unto us that B. unjustly, &c. hath raised or pulled down a certain hedge or a 'certain fence, or hath obstructed or narrowed a certain way, or hath ' turned aside the course of a certain water, or hath made or pulled down, or made higher a certain pond in N. to the nuisance of his 'freehold in the same town; (or in another if so be the case,) after our peace, &c. And therefore we command you that if the aforesaid A. shall give you security, &c. then you shall cause twelve, &c. to view that hedge or that fence, or that way or watercourse, or that pond and the tenement, and their names to be put in writing. And summon them, &c. to come before our justice, &c. ready, &c. and put by gage, &c. the aforesaid B. or his bailiff, &c. that he be then, &c. ' and have, &c. dated, &c.' And the forms of the writs shall be changed according to the diversities of the cases.

The King to the sheriff greeting. If A. shall give you security to 'prosecute his claim, then summon by good summoners twelve free and fawful men of the neighbourhood of N. to come before our justice, ready upon their oath to make recognition whether B. the father of the 'aforesaid was seised in his demesne as of fee of such a manor with the appurtenances, or of so much land with the appurtenances, in N. on the day when he died; and whether he died since the proclamation of our peace in Wales in the eleventh year of our reign. And whether the same A. be his next heir. And in the mean time let them view that manor or that land, and cause their names to be put in writing, and summon by good summoners C. who now holdeth that manor or that land and he be then there to hear that recognition. And have there the 'summoners, and this writ, dated, &c.'

And letters patent shall be made in these words until our Lord the King shall ordain otherwise: The King to his justice greeting, Know ye, that we have constituted you our justice, together with those whom ye shall think fit to be associated unto you to take the assizes of novel 'disseisin and mortdauncester in the part of Wales. And therefore we ⚫ command you that at certain days and places, which you shall therefore provide, you do take those assizes; doing therein what appertaineth to justice according to the law and custom of our realm. Saving unto us the amercements and other things therefore due unto us: For we have given 'command to our sheriffs that they do cause those assizes to come before you at certain days and places which you shall for the same make known unto them. In witness whereof we have caused these our letters patent to be made unto you. Dated, &c.' And there shall be a writ close by the command of the justice to be directed to the sheriffs in this form: The King to the sheriff, greeting. We command you that

'you cause to come before our justice at certain days and places which he shall make known unto you, all the assizes of novel “disseisin and 'mortdauncester arraigned before the same justice by our writs, to'gether with the original writs, attachments, and all other proceedings, concerning the said assizes; and the writ, dated, &c.'

And the form of the writ shall be changed according to the diversities of the cases; that is to wit, if the mother, or the brother, or the sister, or the uncle, or the aunt, were seised in demesne as of fee of the thing demanded by process of mortdauncester on the day when they died. And when many co-heirs and parceners of any inheritance demand that inheritance, that is to say, when one of them demandeth on the death of father or mother, brother or sister, uncle or aunt, and another or others of those co-heirs demand on the death of a grandfather, or grandmother, or cousin, male or female, a writ of mortdauncester shall be made to them upon their case, because that part of the said writ that toucheth the kind of ancestor who is dead, according to the clause thereof commonly used, draweth unto it the nature of other articles touching co-heirs in remoter degrees.

'The King to the sheriff greeting. Command A. that justly and without delay he render to B. the manor of N. with the appurtenances ⚫ whereof the aforesaid A. deforceth him as he saith; and unless he shall do, and if the aforesaid B. shall give you security to prosecute his ⚫ claim, then summon by good summoners the aforesaid A. that he be 'before our justice to shew wherefore he hath not done it. And have 'there the summoners, and this writ, dated, &c.' Or thus:- Command A. that justly, &c. he render so much land with the appurtenances in N.' as before. And in like manner that writ shall be granted before the justices in the bench if the demandant chooseth.

No. II.

12 Edward I.

The general writ; which in one case concerneth the right, and in

another the possession.

The King to the sheriff greeting. Command A. that justly and with- The writ of ' out delay he render to B. who was the wife of C. her reasonable dower dower in that to her belongeth, of the freehold that was the aforesaid C.'s, Wales. ⚫late her husband, in N., whereof she hath nothing as she saith, and whereof she complaineth that the aforesaid A. deforceth her; and un'less he shall so do, and if the aforesaid B. shall give you security to prosecute her claim, then summon by good summoners the aforesaid ‹ A. that he be before our justice, &c. to shew, &c. and have there the summoners and this writ dated, &c. And the form of the writ shall ⚫ be changed according to the diversity of the cases; to wit, if the wo* man should have been endowed at the church door by the consent and will of the father, or other ancestor whose heir he may be or ⚫ ought to be.'

6 The King to the sheriff greeting. Command A. that justly and The writ of without delay he render B. one hundred shillings which he oweth to debt. him and unjustly detaineth as he saith; and unless he shall so do, and if the aforesaid B. shall give you security to prosecute his claim, then summon by good summoners the aforesaid A. that he be before ' our justice to shew wherefore he hath not done it. And have there the summoners and this writ, dated, &c.' And if chattels or sacks of wool should be demanded, the writ shall be as underwritten. The 'King to the sheriff greeting. Command A. that justly and without 'delay he render to B. one sack of wool of the value of ten marks, which he unjustly withholdeth from him as he saith. And unless he 'shall so do, &c.' as before. And the form of like writs shall be made according to the plaintiff's shewing, and to the diversities of the cases. And such writ of debts to be pleaded before the justice shall not be made of a less sum than forty shillings. But pleas of debt that amount not to the sum of forty shillings shall be pleaded in the county court, and likewise in the commote. And if it happen that the plaintiff should choose to plead of such in the county court, then let there be made to him this writ which is called justicies :

No. II.

12 Edward I.

The writ of
Covenant.

The form of the writ of attorney,

The form of the writ for choosing a coroner,

Of pleas, some are to be de

termined by the assize, some by juries.

We command you that you hold to justice A. that justly and without delay he render to B. one hundred shillings which he oweth to him as he saith, as he may reasonably prove that he ought to render 'the same; so that we may hear no more complaint thereof for fail'ure of justice. Dated, &c. Or thus: That he render to him a sack of wool of the value of ten marks which he unjustly withholdeth, or 'chattels to the value of ten marks which he unjustly withholdeth 'from him, as he saith, as he may reasonably prove. So that, &c. Dated, &c.' And a pone shall be thereupon made if demanded, in this form: The King to the sheriff greeting. Put at the request of the plaintiff ⚫ before our justice, &c. at such a day the plaint that is in your county 'court by our writ between A. and B. of a debt of one hundred shillings which the same A. demandeth of the aforesaid B. And summon by good summoners the aforesaid B. that he be then there to answer thereof to the aforesaid A. and have there the summoners and this writ, and the other writ. Dated, &c.'

The King to the sheriff greeting. Command A. that justly and 'without delay he keep with B. the covenant made between them of one messuage, ten acres of land, and five acres of wood land, with the appurtenances, in N. And unless he shall do so, &c. then summon 'the aforesaid A. that he be, &c. to shew, &c. Dated, &c.' And let writs of covenant be made according to the complaints of the contracting parties, and the diversities of the cases, whether before the justice or in the county court, at the will of the plaintiffs. And if they choose to plead in the county court, let them have the writ called justicies; and thereafter a pone shall be made if it be demanded.

The King to the sheriff greeting. Know ye that A. hath before us 'made his attornies B. and C. to win or lose in the plaint that is before you by our writ between the said A. demandant and D. tenant of one messuage with the appurtenances in N.; and therefore we command you that you do for this purpose receive the aforesaid B. and C. or either of them, if both cannot be present, in the place of him the said A. Dated, &c.' And in the same manner shall writs of attorney be made in other cases according to the diversities of the cases and the forms of the writs.

The King to the sheriff greeting. We command you that in your 'full county court, and by the assent of the same county, you cause a 'coroner to be chosen; who having taken the oath as the custom is, 'shall thereafter do and observe those things that belong to the office of coroner in the aforesaid county; and that you cause to be chosen one who hath best knowledge and ability to execute that office; and that you make known unto us his name. Dated, &c.' And if he should be sick, or should die, or for any other cause be unable to execute his office, then let another writ be made changing what ought to be changed.

When one who is seised of a freehold, being afterwards disseised by force, demandeth seisin to be restored to him, in this case there is provided the writ of novel disseisin in the form above written, among the other original writs of the Chancery. In like manner for common of pasture when one being disseised of his common of pasture appurte nant unto his freehold, demandeth seisin to be restored to him; for this case also there is provided the same writ of novel disseisin by the changing of certain words in the form above written, among the other original writs of the Chancery; wherein the proceeding is to be thus: First, the sheriff having taken from the plaintiff two pledges to prosecute, shall cause to be chosen twelve free and lawful men, &c. of the neighbourhood where the tenement or pasture lieth, and shall cause them to view the tenement, and in like manner the pasture, and shall attach the disseisors as it is contained in the writ. Afterwards, when the par

ties and the assize shall come before the justice, the plaintiff shall be No. II. asked of what freehold, or of what common of pasture, he complaineth 12 Edward I. that he is disseised; and according to his complaint, and the answer of the adverse party, they shall proceed to the taking of the assize unless the disseisor can say any thing wherefore the assize ought to tarry. And if the assize do pass for the plaintiff, he shall recover his seisin together with the damages taxed by the assize against the disseisor; and the disseisor shall abide in mercy of our Lord the King, or shall be committed to prison to be ransomed, if the disseisin were done outrageously and with an armed force.

There are certain other writs which are to be determined by the assize, to wit, of a pond made, pulled down, or raised higher; of a fence raised or pulled down; of a hedge raised or pulled down; of a way obstructed or narrowed; of a water-course turned aside; and according to the diversity of the cases the original writ shall be changed: which writs are contained above with the writs of novel disseisin, and the proceeding therein is after the same manner as is above said in the writ of freehold, and of common of pasture. In the above said writs of assize of novel disseisin no essoign or delay lieth; but the proceeding to do justice beginneth on the first day.

There is another writ of assizes: When any one demandeth seisin of a tenement whereof his ancestor died seised: that is to say, the father, brother, uncle, and grandfather; for which case there is provided the writ of mortdauncester, in the form contained in the aforesaid roll among the other writs. And it sometimes happeneth that seisin of an ancestor is demanded where the ancestor hath not died seised, but was seised on the day when he entered into religion, or began a pilgrimage in which journey he died, and then in place of the clause on the day whereon he died, shall be put "on the day whereon he entered into "religion or began his pilgrimage, &c. in which pilgrimage, &c. and "if, &c."

In this writ of mortdauncestor the proceeding shall be after this manner: First pledges to prosecute being found, and the assize elected, and view made by the jurors, the tenant shall be summoned by two good and lawful summoners, that he be before the justice at a certain day; and the summons shall contain warning of fifteen days at the least; at which day if he come, the justice shall proceed in the execution of his office. And if he come not at that day he shall be punished for his default according to the provision of the Welsh law, that is to say, by three cows or the value thereof; and he shall be summoned again by two other summoners, by a summons containing the like warning of fifteen days as before is said; at which day whether he come or not the justice shall proceed to do his office, unless he shall cause himself to be essoigned for being beyond sea, and then there shall be given him the space of forty days so that he have ebb and flood: but let him that shall so essoign himself beware; for if being within the four seas, he falsely essoign himself for being beyond sea, and be thereof convict by good proof or by good inquest, he shall be punished as for a default at the first by amerciament, according to what is contained in the Welsh law; and also he shall be estopped from saying any thing against the assize, unless he can vouch to warranty. And be it known that neither in the writ of mortdauncester, nor in any writ of a plea of land, doth any essoign lie, except only the essoign of being beyond sea, and this before the tenant or deforciant appeareth in court; and the essoign of being in the King's service which lieth in every stage of the plea, when the King shall be pleased to warrant the same; but let him beware that he doth not falsely cause himself to be essoigned of the King's service; for if he should fail of the King's warranty he shall be punished for his default by amercement to be made to our Lord the King according to the Welsh law, and by paying to the adverse party his expenses of that day, according to the justice's discretion. In these writs of mortdauncester the proceeding shall be after this manner: First, the writ being read wherein is contained the claim of the demandant, the deforciant shall be asked if

No. II.

12 Edward I.

he can say ought wherefore the assize ought to tarry, which if he cannot, the justice shall take the assize by the jurors, who may best know the truth according to the form of the writ. And if the assize pass for the demandant, seisin shall be adjudged to the demandant with damages taxed by the jurors, and the deforciant shall abide in the King's mercy. But the deforciant may allege many things against the assize; for he may vouch to warranty, and then the arrival of the warrantor is to be waited for, whom the justice shall cause to come by one summons at the first, and if it be necessary by resummons as hath been said in the case of the principal deforciant; and he shall be punished for a default as is aforesaid: if after resummons he come not, nor shall essoign himself, the assize shall proceed against him by default. And if the assize pass for the demandant seisin of the thing in question shall be adjudged to the demandant, and the deforciant shall have to the value of the land of the warrantor. But if the warrantor come and require to have that shewn him, whereby he ought to warrant, it behoveth the voucher to shew the deed that maketh mention of the warranty, or of a gift made by the warrantor or his ancestor whose heir he is, wherein it is declared that he ought to hold of the feoffor and his heirs; or to shew that the warrantor was seised of his homage for the tenement demanded; which is to be enquired of if it should be denied by those before whom he shall say he did the homage together with other free and lawful men sworn ; or that he holdeth that tenement in exchange for another tenement : if hereupon the deforciant can bring his warrantor to warrant, he shall abide in the King's mercy, because he hath denied the warranty; yet nevertheless it shall be considered that he may warrant and make answer to the assize if he choose.

The deforciant may allege many other things against the assize; to wit, that the ancestor, of whose death, &c. committed felony for which he was hanged, outlawed, or as a public thief escaping, and not obedient to the law beheaded, or that he abjured Wales upon confession of the felony before the coroner. The deforciant may also object bastardy to the demandant, and thereupon the bishop of the place shall be directed to make enquiry of the truth of the fact; and thereof to certify the Chief Justice of Wales. And according to what the bishop shall have certified, they shall proceed to judgment without taking the assize. And if the bishop return that he is a bastard, he shall be estopped from making the demand; and if return that he is legitimate the justice shall cause the deforciant to come by summons, and if it be necessary by resummons, reserving to the King as hath been often said the amercement for default. After the resummons whether he come or not, the demandant shall recover his demand by the bishop's testimony, whose testimony shall not be gainsayed; and he shall remain in the King's mercy. Many other things he may allege which it is hard to enumerate, as that the ancestor on whose death the assize is arraigned was a villain, and held the land in villenage, or that he held it at will or for term of life or years. In which cases the assize of mortdauncester lieth not, and the abovesaid assizes of novel disseisin and mortdauncester ought not to be taken but in their proper counties, lest the country should be overcharged with trouble and expense, but the assizes shall be taken by the justice twice, thrice, or four times in the year.

It hath been treated in part of writs and assizes, and of the proceeding therein. It behoveth now to speak of pleas that are to be determined by inquests or by juries; whereof some are of things immoveable, as of tenements; or of moveables, as of debts and chattels; some of both kinds; some of trespasses. But, first, something is to be said of tenements and immoveable things, for which there is a writ provided, the term whereof is contained among the other writs of those parts: the process upon that writ is such: First, there being found pledges to prosecute, the sheriff shall cause the tenant to be summoned by good summoners, that he appear at a certain day, at which day if he come not he shall be summoned again for another day,and if he come not at the second day he shall be summoned to appear at a third day, at which day if he come not nor