the goods be held sufficient by a reasonable Extent untill the debt and damages be leavied Those who are Appealed and Endicted of Felony and are not to be found it behooveth that they be proclaimed and especially before the Kings and his Iustices Errants and if they be found guilty then they are to be commanded to put them in exigent so that the first county after the Eyre be the first day and so they be demandable at three Counly Courts untill they be Out-lawed if they â—ender not themselves to the Peace CHAP. IV. SECT 27. Of the Office of Justices in Eyre TO the Office of Iustices in Eyre it belongeth especially to enquire by Iurours and by examination of the Roles of the Coroners of all that were Out-lawed after the last Eyre and after Certificate of their names they are to enquire of the names of their Pledges that is to say whether they were in Dozien or in Franck-pledge and if their Pledges be in the same County then are the Pledges punishable by a pecuniary paine because they brought not those they tooke in Maine-prise to appeare and if they were elsewhere in Dezien then they are to enquire in whose Main-prise they were and they are punishable according to the example of the Pledges for the same cause To help the memories of the people are Escripts Charters and Minements very necessary to prove the conditions and the points of Contracts Gifts Sales Feoffments and other things By the Statute of Leuchfred it was Enacted that one might deny nude â—ontracts made by words and it was Ordained that Plaintiffes should prove their Writings which were denyed and not proveable by Neighbours in England and for forraigne Contracts by Battaile or by the setting to of other Seale or by Iurours at the election of the Plaintiffes If Iurours have obscurely or doubtfully or not sufficiently given their Verdict in any Action or Exception or any of the parties be grieved thereby there is remedy by a Commission of Câ—â—tisicate to make the Iurour come againe and the Parties who are the Plaintiff ought to have under the Kings Seale and of the Iudge and of the Parties the proceedings of the Plea before and shew the defect and the offence of the Iurours in which case if the Iudge by examination finde it doubtfull the â—aid doubt is to be reduced to certainty and the obscurity to cleernesse and the errour into truth and so the first Iudgement is to be redressed The Contents of the Fifth Chapter A Busions of the Common Law The defects of the great Charter The reprehensions of the Statute of Merton and Marle-bridge The reprehensions of the Statutes of Westmister 1. The reprehension of the Statute of Wesim 2. and of Gloucester The reprehensions of Circumspecte agatis The reprehensions of the new Statute of Merchants CHAP. V. CHAP. V. Sect. 1. Abusions of the Common Law THere are many who say That although other Realmes use a written Law yet onely England useth her Customes and her Usages for Law not written but betwixt rightfull and tortious usages there is a difference for tortious usages not warranted by Law nor suffered by Holy Scripture are not at all to be used as for example those of Theeves whose usages are to rob and steale And to shew some abuses holden for usages which are frauds to the Law and repugâ—ants to right and which are not found justifiable by Holy Scripture is this Chapter made of a Collection of part of the abusions of the Law and of persons erring from the knowledge of the right of Law and from lawfull usages Abusion is a disuse or a misuse of right usages turned to abuses sometimes by contrariety and repugnancy to Law sometimes by too large a usage thereof 1 The first and chiefe abusion is That the King is above the Law whereas he ought to be subject to it as it is contained in his Oath 2 It is an abuse that whereas Parliaments ought to be for the salvation of the Soules of Trespassors twice in the yeare at London that they are there but very seldome and at the pleasure of the King for Subsidies and Collections of Treasuree and where the Ordinances ought to bâ— made by the assent of the King and of hi Earles they are now made by the Kin and his Clerkes and by Aliens and others who dare not contradict the King but de fire to please him and to Counsell him for his profit though the Counsell be not Covenable for the common people without calling the Counties thereunto and without following the rules of Law whereby it followeth that many Ordinances are grounded more upon pleasure then upon Law 3 It is an abuse that the Lawes and the Customes of the Realme with their occasions are not put into writing whereby they may be knowne so as they might be knowne by all men 4 It is an abuse that force holds in Disseisins after the third day of peaceable seisin for as much as he is not worthy to be aided by the Law who flyeth from Iudgement and useth force 5 It is an abuse that Justice is delayed in the Kings Court more then oâ—se where 6 It is an abuse to suffer any to be in the Realme above forty daies who is of the age of fourteene yeares English or Alien if he be not sworne to the King by an Oath of Fealty and in some Pledge and Dozien 7 It is an abuse that Clerkes and Women are exempted to make the said Oath to the King seeing the King taketh their Homage and Fealty for Lands 8 It is an abuse to hold an escape out of Prison or the breach of the Goale to be a mortall offence for that usage is not warranted by any Law nor is it used in any place but within this Realme and in France for as much as one is warranted to doe it by the Law of Nature 9 It is an abuse to suffer so many formes of Writs to be pleadable and therein especially that the Writs are Close and not Patents as the Writs of Right and in that they are made with interlinings and rasure and otherwise vicious 10 It is an abuse that the money is not quarterable that it is not Silver that it is held payable if the forrein circle be not whole to allay the Money per 18. d. and make paying of Lead to every c. 11 It is an abuse that the King takes more then twelve pence for the exchange of twenty shillings in the pound 12 It is an abuse that no pound is suffesed to weigh twenty five shillings or more then twelve ounces 13 It is an abuse that Treason is not adjudged more by Appeales then it is 14 It is an abuse that a man who hath done Man-slaughter of necessity or with the Peace or not feloniously is detained and kept in Prison untill he hath purchased the Kings Charter of pardon of death as it is for mischance 15 It is an abuse to hold the moveable goods of
THE BOOKE Called The Mirrour of Justices Made By ANDREVV HORNE With the Book called The Diversity of Courts AND Their Jurisdictions Both translated out of the old French into the English Tongue By W.H. of Grays Inne Esquire Cassiodor Iura publica certissima sunt virae humanae solatia infirmorum anxilia impiorum frana Imprinted at London for Matthew Walbancke at Graies Inne gate 1646. The Translator to the READER Courteous Reader IT hath ever been an Objection grounded upon ignorance which hath been made by the meaner sort of the people to traduce the Common Lawes of England and to bring the Professors thereof into contempt to give out Speeches and cast it in the teeth as it were of them That the said Lawes are built but upon a sandy foundation viz. the conceits of a few men and that they are not grounded upon the Lawes of God from which all Lawes of men ought to flow as from a cleare and pure Fountaine This vulgar conceit and objection hath been principally nourished amongst them because the Common Lawes have been kept from their view and understandings being for the most part published in the French Tongue I must ingeniously confesse That since it is a received Maxime amongst us That ignorance of the Law doth excuse no man that it were good that the fundamentall Lawes were published in our Mother Tongue that so no person might be miscounsant thereof And I have observed that it hath been the course and care of most of the late Publishers of our Lawes to put them forth in such Language as the common people might the better know them and practice the due observation of them But that I may with the more ease and plainnesse answer that frivolous Objection remove that fond conceit of the ignorant vindicate our Commnn Lawes from so foule an aspersion and let the Objectors see from whence our Lawes deduce their Originall though the learned Authour in the ensuing Treatise hath in part done it yet for the cleare manifestation thereof I shall entreat the courteous Reader to be pleased favourably to accept of this short Breviary of the Grounds and originals of the Common Law which I shall apply only as an introduction to the Work which followeth All Lawes are comprehended under a Three-fold division 1. The Law of Nature 2. The Law of God of Faith or of the Gospell 3. The Law of man made upon the Dictates of Reason upon all which Lawes the Common Lawes of England are built as upon firme and sure foundations The First is that which is called the Law of Nature which is ordained of God and may be called Gods Law united unto mans nature Gen. 1. ver 26,27 for what was that Image of God in man consisting of righteousnesse holinesse and truth but Lex primordialis a primordiall Law exactly requiring and absolutely enabling the performance of duties of Piety unto God and of equity to men both in habit and Art St. Ambrose Amiquam scripte fuit lex in hominum mentibut vigebat God in the beginning wrote his Lawes in mens hearts and therefore according unto the opinion of most learned Divines and Legists Lex nature nibil aliud est quam participatio legis eterne in rationali creatura And according to others Lex naturae est lamen ac dictamen illud rationis quo inter bonum malum discernimus The most principall Precepts of the Law of Nature which are also Maximes and Grounds of the Lawes of England are 1. Deum venerari 2. Honestè vivere 3. Patrie magistratibus parentibus obedire 4. Alteri ne facias quod tibi non vis fieri 5. Suum cuique tribuere 6. Tollere nocentes è medio propter servandam publicam salutem 7. Rerum dominia proprietates possessiones usum distinguere To honour God to live honestly to obey Magistrates c. to doe as we would be done unto to render every one his due to punish the guilty for the preservation of the Publique to distinguish and settle the Dominion propriety possession and use of temporall things These fundamentalls of the Law of Natvre are not principally acquired or obtained by Art or Doctrine but naturally ingrafted Learning and instruction serve only to bring forth and encrease those naturall Seedes but neither Learning nor instruction doe principally and originally give them they are faith Socrates but as skilfull Midwives Socrates whose office it is only to further the birth of the Childe not to beget the Childe The Second is the Law of God the Law of Faith or of the Gospell which may well be called Lex amoris the Law of love Is not this Nation Christian Hath it not professed the common Faith for 1200. yeares Doe not our Lawes all tend to the maintaining of peace concord and love fruits of the Gospell Are not all Statutes Acts of Parliament Constitutions Customes made and used for the government of this people founded upon such principalls Let the Objectors cite me any Law in use now amongst us which is not warranted by some expresse Gospel Text either in the Letter or not by necessary consequence drawne from it sure I am that every Law Custome Usage Priviledge Prescription Act of Parliament or Prerogative which doth exalt it selfe above or beyond the Law of God the Law of Christ or the Law of Nature hath ever by the worthy Sages of our Lawes been declared to be void It were to no purpose to instance upon particulars it is sufficient to say That as it appertaineth to all godly and Christian men to observe and keepe this Law so to let all men know that we are instructed by the worthy Professors of the Gospell of Christ in the fundamentall Rules and grounds of this Law to live after it and to direct all our words and actions according to it and by it and therefore I shall not say more of it The third the Lawes of men and the municipall Lawes of this Realm which although they may seeme to some to have their progeny from men for as Solon to the Athenians Lycurgus to the Lacedemonians Numa Pompelius and Actius Claudius to the Romans were accounted the Principall Authors and givers of Law to those severall Nations so Alured on Alfred Athelstone Edmundus Edgar Canutus Edward the Confessor William the first and Henry the first called Beauclark noble and famous Princes of this Nation part of all whose Lawes are yet in force were the chiefe promulgers of many necessary and good Lawes yet in use with us in this Realme yet if we looke into their Laws we shall finde that most of them have their rise from a higher power from the Law of God and the Law of Faith It is true Dan. Hist in tit Wil. Conq. Cicero l. 1. De legibus that some Historiographers have written that the originall of the Common Lawes now in use flowed first out of Normandy I shall decline that as to the generality but as Cicero was bold to derive the pedigree of his Roman Law from the great God Jupiter so I hope without offence I may be emboldened in the person of our Common Law to say That when the Lawes of God and Reason came first into England then came I in The Temporall Lawes of
to averre by Oath and because he would not averre it by Record Therberne would not allow of the Acquittall which he tendred him He hanged Wolstor because he adjudged Haubert to death at the Suit of the King 31 Wolstor for a fact which Haâ—bert conâ—est and of which the King gave him his pardon but he had no Charter thereof neverthelesse he vouched the King to warrant it and further tendred to averre it by enrolement of the Chancery He hanged Oskitell because he judged Catling to death 32 Oskitell by the Record of the Coroner whereby Replication allowable the plea did not hold And the case was such Catling was taken and punished so much as he conâ—est he had mortally offended and that to be quitted of the paine and Oskitell adjudged him to death upon his Confession which he had made to the Coroner without triall of the truth of the paine or the fact And further he caused the Coroners and Officers accessories to be apprehended who hanged the people and all those who might have hindred the false Judgement and did not hinder the same in all cases For he hanged all the Judges who had falsly saved a man guilty of death or hath falsly hanged any man against Law or any reasonable Exception He hanged the Suitors of Calevot 33 Suitors of Calevoâ— because they had adjudged a man to death in a case not notorious although he were guilty thereof for no man can Iudge within the Realme but the King or his Commissaries except those Lords in whose Lordships the Kings Writ doth not run He hanged the Suitors of Dorcester 34 Suitors of Dorcester because they Iudged a man to death by Iutours in their Liberty for a felony which he did out of the liberty and whereof they had not the Counsance by reason of forrainty He hanged the Suitors of Cirencester 35 Saitors of Cirencester because they kept a man so long in Prison that he dyed in Prison who would have acquitted himselfe by Forraigners that he offended not feloniously In his time the Suitors of Doncaster lost their Iurisdiction 36 Suâ—ors of Doncaster besides other punishments because they held Pleas forbidden by the Customes of the Realme to Iudges Ordinaries and Suitors to hold In his time Colgrin lost his franchise of Enfangtheise 37 Colgrin because he would not send a Theife to the common Goale of the County who was taken within his Liberty for a felony done out of the Liberty in Guildable In his time Buttolphe lost his view of Franck-pledges 38 Buttolphe because he charged the Iurours with other Articles then those which belonged to the View and Amerced people in Personall Actions where one was not to be amerced by a pecuniary punishment And accordingly he caused mortall rewards to Criminall Iudges for wrongfull mortall Iudgements and so he did for wrongfull Iudgements venialls Imprisonment for wrongfull Imprisonments and like for like with the other punishments for he delivered Thelweld to Prison because he judged men to Prison for an offence not mortall He judged Lithing to Prison 39 Lithing because he imprisoned Herbote for the offence of his wife He judged Rutwood to Prison because he imprisoned Olde for the Kings Debt On the other side he cut off the hand of Hanlf because he saved Armocks hand who was attainted before him that he had feloniously wounded Richbold He judged Edulfe to be wounded because he judged not Arnold to be wounded who feloniously had wounded Aldens In lesser Offences he did not meddle with the Judgements but dis-inherited the Justices and removed them according to the points of those Statutes in all points where he could understand that they had passed their Jurisdiction or the bound of their Delegacy or of their Commission or had concealed Fines or Amercements or other thing which belonged to the King or had released or encreased any punishment contrary to Law or procured the exercising or pleading without Warrant either in the property by warrant of Writ or of a plaint of the Possession or è contra Or in the veniall Actions by words of felony or è contrai or had sent to no Party a transcript of his Plea at the Joâ—ney or any of the Parties wrongfull grieved or done any other wrong in dis-allowance of a reasonable Exception of the Parties or to the Judgement In his time every Plaintiffe might have a Commission and a Writ to his Sheriffe to the Lord of the Fee or to certaine Justices assigned upon every wrongwhichwas done In his time Law was hastened from day to day so that above fifteen daies there was no default nor Essoigne adjournable In his time the parties might carry away the parts of their Pleas under the Seale of the Judges or the adverse parties In his time there was no stay of Writs all remediall Writs were grantable as of Debt by vertue of an Oath In his time the Iudges used to take twelve pence of every Plaintiffe at the journey In his time Plaintiffes recovered not onely damages of the issues of the Possessions and of the Fees but recovered Costs as to the hurts and as much as one might lawfully Taxe by the occasion of such a fact 109 It is abuse that such a multitude of Clerks are suffered to be made whereby the Kings jurisdiction is overthrowne 110 It is abuse that Clerkes have Leases of that which belongs to the Temporalty and hold Lay Fees 111 It is abuse that Pleas hold upon Sundaies or other daies forbidden or before Sun rising or in the night time in dishonest places 112 It is abuse that none answer to a Felony or other personall Action of trespasse or scandall before his age of one and twenty yeares 113 It is abuse that when the Action is affirmative to take the proofe against the Answer or Plea affirmative 114 It is abuse that a man be accused of life and member ex officio without 〈◊〉 or without indictments 115 It is abuse that the Iustices shew not the Endictments to those who are endicted if they require the same 116 It is abuse that no man in England doth answer for a thing done out of the Realme Et è contra or in a priviledged place where the Kings Writ runneth not for a thing done to a Forraigner et è contra or within a place within a Franchize for a thing done in Guildable 117 It is abuse that Rape is a mortall offence 118 It is abuse that Rape extends to others then Virgins 119 It is abuse to Out-law a man if not for felony 120 It is abuse that one take in England any one Out lawed in Ireland or elsewhere out of the Realme or that one is put out of his Fee by judgement of Law of Judges Ordinaries Suiters 121 It is abuse to count of so iong time whereof none can restifie the hearing or seeing which is not to endure generally above forty yeares 122 It is abuse that a man have an
that Socage Lands should be partable amongst the Heires rights and that none might alien but the fourth part of his Inheritance without the consent of his Heire and that none might alien his Lands by Purchase from his Heires if Assignes were not specified in the Deeds It was Ordained That every one might endow his Wife Adestúm Ecclesia or of the Monastery without the consent of his Heires that Heire Females nor Widowes should not Marry themselves without the assent of their Lords because the Lords were not bound to take the Homages from their Enemies or other unknowne Persons and the same is forbidden upon paine of Forfeitures whether their Parents were cousenting thereunto or not and that Widowes in case they Marry without the consent of the Guardians of the Lands should lose their Dowries That those also should be dis-inherited or lose their Dowries before that they Married Widowes neverthelesse this should not forfeit their Inheritance for whoredome and that the eldest Son should forfeit nothing to the prejudice of his Ancestour nor his Heires living the Ancestour whose Heire apparant he is It was Ordained That the Lords of Fees might Summon their Tenants by the award of their Peeres into the Lords Courts or into his Counties or the Hundred at all times that they detaine or deny to doe their services in Deed or in Word Etè contra that is to say The Lords against the Tenants and there they shall be acquitted or forfeit their Alegiance with the appurtenances by the judgement of the Suiters and all their Tenancy and the Tortious or outragious Lords shall lose their Fees and the Services and the Tenements shall goe to the chief Lords of the Fee It was forbidden that none be destreyned by his moveable goods but by their bodies or by their Fees except in speciall Cases after mentioned It was Ordained that Infants should be in Ward with their Lands and Goods and that the Guardians should answer for Trespasses done by their Wards and give satisfaction to those who were damaged except of Felonies and that their Marriages should be to the Lords and that should have Escuage Reliefe and Aydes of their Tenants which they held of the Lords as to make the Heire of the Lord Knight and to Marry their eldest Daughters and that the Heires males should doe homage to their Lords and the Females should sweare fealty and that the Inheritance should discend to all the Children by warrant of right of the possession and that the male should barre the female and the next the more remote by warrant of right of propriety It was Ordained That offenders guilty of death should not be suffered to remaine amongst the guiltlesse and that the King should have the value of the Lands and the rent for one yeere and the wast of Felons Lands and also that he should have all Deodand and that the Goods and Chattels of Usurers should remaine as Escheates to the Lords of the Fèes Essoines were Ordained in mixt and reall Actions and not in personall Actions as after is said It was forbidden that any one should alien the profits of his Lands or his Rents to any one out of the Realme and it was also forbidden that none sold Wine in the Kingdome but by Tonnell or Pipe It was forbid that no money was to be carried out of the Realme and that none should carry Wooll out of the Kingdom nor should kill Lamb or Calf which might live nor Oxe which was not gelt It was forbidden That no Bishop doordaine Lay-mâ—n to the Order of Clerkes above the number which are sufficient to serve the Churches whereby the Kings Jurisdiction be destroyed It was Ordained That the poore should be sustained by Parsons Rectors of the Church and by the Parishioners so that none of them dye for want of sustenance It was Ordained That Faires and Markets should be in places and that the buiers of Corne and Cattell should pay Tole to the Lords Bayliffes of Markers or Faires That is to say a false penny of six shillings of good and of lesse lesse and of more more so that no Tole exceed a penny for one manner of Merchandize and this Tole was given to testifie the Contracts for that every private Contract was forbidden It was Ordained That no action was receiveable to Judgement if there was not a present proofe by Witnesses or other things and that none was bound to Answer to any Suite not to appeare to any Action in the Kings Courts before the Kings Justices before they found Sureries to Answer damages and the costs of Suite if damages lay in the Câ—se except in foure offences Dissâ—rsins Cirtification of Dissersius Attaints Rediffeisius and other Cases To which Ordinance King Henry the first put this mittigation in favour of poore Plaintiffes that those who had not sufficient Sureties present should make satisfaction according to their ability according to a reasonable taxation and in the same manner in Summances and in hatred of Perjury Attaints were Ordained in all Actions It was forbidden That no Merchant Alien should repaire into England but at foure Fayres and that none such should remaine in the Realm above forty daies Of the Curtesie of King Henry the first It was granted That all those who survived their Wives who were with childe by them should hold their Wives Inheritance for ever Many other Ordinances were made by them and since have been made in aide of the Peace according as afterwards shall be said CHAP. 1. SECT 4. Of Offences and the Division of them THe division of Offences is according to that which appeareth by the punishment Mortall or Veniall The mortall Offences are these Of Majesty Falsifying Treason Burning Larcency Burglary Homicide Of the Offence of Majesty The Crime of Majesty is an horrible offence done against the King and that is either against the King of Heaven or an earthly King Against the King of Heaven in three manners Heresie Venery Sodomy Against the earthly King in 3. manners 1 By these who kill the King or compasse so to doe 2 By those who dis-inherite the King of his Realm by bringing in an Army or compasse so to doe 3 By those Adulterours who ravish the Kings Wife the Kings lawfull eldest Daughter before she be married being in the Kings custody or the Nurse or the Kings Ant heire to the King Heresie is an evill and false belief arising out of Error of the true Christian Faith under this offence is Witchcraft oâ— Divination which are members of Heresie and in case lesse notorious they come by presumptions of ill workes which are by evill Art arising from an ill beleife and sometimes of a firmer beleif they doe wonders and sometime they come by open confessions of Error So Eresie is an Art to Divine Divination properly is taken in the ill sence as Prophesie is taken in a good sence Divination used to be in many kinds whereof one manner of Divination was through an ill beliefe by
Fame against others And that which is said of making of Title to the possession of things in Case where a false Writ or false Mony or Larcine or thing lost or Estrey or other hurt is found at the Kings Suit although that the last professor acquit himselfe of the selony if the Plainliffe neverthelesse prove the thing to be his as of his possession or stoll en from another or otherwise lost the Law is that he recover the thing without any payment for it Or he may have Exception Dillatory to a vicious Deed for varience betwixt the words of the Writ and the nature of the Action and the Count as if he have omitted to Charge me or if he Charge that in the Count which was not to be in that Action as felony in a veniall Action And as the Defendant hath a Dillatory Exception to abate a vicious Count in like manner hath the Plaintiffe a Replication against the Defendant upon a faulty Answer but because none is to be Iudged for not Answering in Appeales of Felony it is sufficient for every one to deny the fellony generally though he Answer not particularly to every word mentioned in the Appeale And in Cases venialls where the Defendants say nothing in excuse of that which is offered against them in Judgement they are to be adjudged and Condemned as not Answering at all in the same manner is it where one Answereth not duly or insufficiently CHAP. III. SECT 14. Exception to Approvers TO an Approver one may thus Answer Sir I am a true man sworne to the King and within a Franck-pledge and this Approver is a Felon attainted by his owne confession and our of the Kings protection by consequence out of the Kings Peace whereby he hath lost his free voice and lost every right and every Action so as he is not to be admitted in any Action no more then a man who is Out-lawed by Judgement Or he may plead that he ought not â—o Answer him because he did not Appeale him in his first Appeale or not before the Coroners and if the Approver cannot helpe himselfe by this Replication as â—o say that he is not any way out of the Kings protection the Defendant is bound to Answer him but he is not to be delivered to the Fee-pledges where he is in the Decenry or to other Main-prisors untill he be appealed or indicted CHAP. III. SECT 15. Exceptions of Indictments THese Exceptions hold to Indictments Sir I demand sight of the Indictments whereby I may take exceptions againâ—â— the persons of the Endictors or to the sorme of the Indictment for no Villaine can indite any man Or if the Indictment be not made by 〈◊〉 whole dozien of Free-men or by 〈◊〉 who cannot indict any man Or if the Indictment be not sealed with the Seale of the twelve Jurouts or 〈◊〉 it is not the record of Iudges 〈◊〉 thereunto Or if the Indictment hath not been within the yeare or by people of credit and of good fame no man is bound to answer to such an indictment Nor if the Indictment hath not been made within the Neighbour-hood of the same County also if the Indictment be generall for a generall slander defameth no man nor is he compelled to answer thereunto as if the Indictment be such a one is a Murderer or a Thiefe or wicked without alleadging any particular offence therein for to the common fame of the people an Indictment ought to give no credit or beleefe Or he may say that the Iustices went the Eyre after the felony done where nothing was moved of this felony CHAP. III. SECT 16. An Answer to Treason DArling here denies all Treasons and Felonies and whatsoever is against the Kings Peace And as to the consideration he may say thus Sir notwithstanding the joynt Alliance betwixt us by Homage sometimes before this time neverthelesse when he counted that I should commit this Treason I had yeelded up to him all the Lands which I held of him or I lost them by Judgement or by Disseisin which the Plaintiffe did to me or he appointed them to come to others in which case the felony is barred and the Plaintiffe is condemnable And as to the consideration of present Fealty he may say that this Alliance the Plaintiffe forfeited against him in such a point or such a point such Fealty issued out of such Lands whereof the Defendant was not then Tenant neither in demeane nor in service And to the Alliance of Courtesie he may say that such benefit was not to continue but untill a time past before the time named in the Appeale for afterwards he paid him nothing of such Pension or other Courtesie but by Iudgement had against him and in despite of him Oâ— thus before the time named in the Appeale he yeelded up to him his deed of the Pension or released the same unto him or quit-claimed the same whereby the Alliance was destroyed CHAP. III. SECT 17. TO Burning he may say that the mischiefe came by mischance and not of a premeditated felon CHAP. III. SECT 18. Murder TO an Appeale of Murder he may plead that the Action belongeth not to such women as the wife of the Plaintiffe because he was not killed in her armes or in her seisin Or thus Sir the Plaintiffe is to have no Action for as much as there is one nearer of blood who hath brought his Appeale and is a person of ability so to doe Or he may say that he is not bounden to Answer in England unto an Act done out of the Realme if the thing concerne not the Kings right as his Person or his Inheritance nor in a Priviledged place where the Kings Writ runneth not of an Act done in a forraigne place nor è contra in a Franchise of an Act done in Guildable Or he may say that he did it not feloniously but by mischance or by a lawfull Judgement or thus not against the Peace as a Fugitive or as a known Felon or as one who was not within Allegiance to the King at the time of the killing CHAP. III. SECT 19. TO an Appeale of Robbery or of Larcine he may plead that he wrongfully bringeth this Appeale for as much as the Plaintiffe brought an Action of Trespasse against the same Persons of the same before such Iudges and if any one would cover his Larcine by colour of Avowry for an estray or a Waife in such case it behooveth thathe shew forth a Title allowable for such a franchise but this exception is counterpleadable by this peremptory replication Sir such Avowry ought not to be of any force because he presently carried away the Estray or Waife so found or changed it or sold it or killed it or put it out of the View or from the knowledge of the neighbour-hood whereas he ought to have publikely cried it in three Markets and Monasterles next adjoyning and keepe it in a common place for a whole yeare To the exception of Distresse