by the heire it is a good plea to plead 20. H. 6. 47. Kel fol. 120 Fi. Cor. 384 27. Ass p. 25 that he which is dead hath a wife liuing to whom the appeale is giuen or that the plaintife who supposeth himselfe to be heire is not next heire to him that was slaine but that he hath an elder brother or that he is a bastard or to plead that the plaintife in this appeale of death hath surceased his time for that the appeale was not brought within the yeare and day after the death of him who is supposed to be killed or to say 8. H. 4. 18 that he of whose death this appeal is brought is liuing at such a place or to bring the party supposed to bee slaine into the court that he may be séene and knowne to be liuing Fi. Cor. 17 11. H. 4. 14 91 In an appeale of Robbery it is a good plea to plead that the plaintife is his villaine And in appeale of Rape brought by the husband and wife Robbery Rape it is a good plea to plead neuer accoupled in lawfull marriage or to plead villenage in the plaintife In an appeale of Robberie it is no good plea for the defendant to plead in barre Co. lib. 4. 43 2. R. 3. 14 that the appellant brought an action of Trespas against him for the same goods caried away and recouered for the appeale of Robbery is of a higher nature and concerneth the life of a man 92 There be some other pleas in barre in an appeale which bee generall Generall pleas in barre in appeale and will serue for all manner of appeales of Felony Fi. Cor. 32 2 as to plead that the plaintife is attainted of Treason or Felony Or that he is a Monke a Priest not of perfect memorie dumbe deafe a lazar a naturall foole or that he is maymed by another and not by the defendant But if the plaintifes attainder bée but by Outlawrie which is erronious then his attainder is no barre but for the time Fit Vtlarie 47. viz. vntill he hath reuersed the Vtlary S. Approuers 10. 14. 93 It is a good plea in barre in an appeale The plaintife brought another appeale to say that the plaintife at another time brought an appeale of the same felony against the defendant 9. H. 4. 2. 47. Ed. 3. 16. in the which he was Nonsute or made a Retraxit Or that the plaintife did at another time pursue an appeale of the same felony against another who was attainted or acquit at his sute If a man be indicted of Manslaughter and vpon his arraignment he confesseth the felony and prayeth and hath his Clergy If after an appeale of murther be brought against the said offendor Co. li. 4. 40. 45. of the murther of the same man it is a good plea for him to plead that he was at another time conuict of the same felony And the same law is if one bring an appeale of Murther against another and the defendant pleadeth not guilty and is found guilty of manslaughter and hath his Clergy if after he be indicted arraigned of the same offence and he doth plead the former conuiction it is a good plea in barre S. Indictments 47. Fit Cor. 98. 94 It is a good plea in barre in an appeale for the defendant to plead The plaintifs release in barre that the plaintife made vnto him a Release of the same offence for it will not serue to plead a Release made to any other sauing to himselfe though the other to whom the Release is made be named with him in the appeale And in like sort though the plaintife made a Retraxit against one of them this shall not barre him against them both but the appeale shall stand good against the other 95 And when the defendant hath pleaded any of the foresaid pleas Pleading not guilty after other pleas yet in fauor of life the law doth permit him to plead ouer to the felony viz. not guilty and his plea by that means shall not be adiudged double 22. E. 4. 39. vnlesse it be in the case of a release for there he shall not be allowed to plead ouer to the felony because it is contrary to his foresaid plea Neither shall he plead ouer to the felony when the defendant in an appeale of Robbery doth plead Villenage in the plaintife for if hee should plead ouer to the felony the plaintife by that meanes should bée infranchised 28. E. 3. 91. 18. E. 3. 32 But if the Villenage be found against the defendant hee shall haue this plea of not guiltie as well as hee shall haue when he pleadeth any of the foresaid barres without concluding ouer to the felony yet notwithstanding if the barre be fouÌ„d against him he may plead ouer to the felony viz. not guilty sauing in pleading of a release for by that plea he confesseth the felony by implication Where the K. may prosecute an appeale begun by another 96 If the appellant do surcease to prosecute his appeale against the defendant the king may pursue it for the appellant may by seuerall meanes leaue off and omit to prosecute his appeale as by Nonsute Release Retraxit 3. H. 6. Fi. Cor. 3 or a woman by taking a husband during the sute of Appeale and because in all those cases the sute doth cease by the act of the party plaintife therfore in which of them soeuer it doth cease after declaration in the appeale the defeÌ„dant shall not go at liberty but shal be arraigned at the kings sute vpon the same declaration for that it doth appeare by the declaration there is a felony committed and the yeare day and place where and when the said felony was committed and the same is not yet tried and the law will not allow such great offences whereof she taketh notice to be concealed and remaine vnpunished And the same law is if the appellants appeale doe cease by the act of God 21. E. 3. 18. as if the appellant doe die Or if it cease by the act of the Law as if the appellant be hanged Or if the appellant do take the priuiledge of his Clergy Fi. Cor. 369 in which cases the defendant likewise shal be arraigned at the K. sute But in euery arraignment which is to be at the K. sute vpon an appeale begun by an appellant the declaration in the same appeale must be once good and true for if it were neuer good and abated for that cause Fit cor 1â—1 the appellée shall not be arraigned at the kings sute notwithstanding the abatement be after declaration And therefore if the appeale be abated by misnaming of the defendant 4. H. 6. 16 he shall not be arraigned at the kings sute Or if it be abated by misnaming of the plaintife or of the towne or for want of a materiall word And so it is if the defendant in an appeale doe
that case he shall be arraigned at the Kings sute though he be acquit against the appellant by his release An Approuer confesseth his appeale to be false 17 If an approuer 21. H. 6. 34. when an Enquest doth appeare vpon the issue ioined betwéene him and the appellée and be ready to trie the same issue will confesse his appeale to be false yet notwithstanding the appellée shall be arraigned at the Kings suite But if the approuer when the appellée is in the field ready to deraigne battaile will confesse his appeale to be false the appellée shall goe quit and not be arraigned at the Kings suite and the approuer shall be hanged for it is as much as if the appellee had vanquished the approuer in battaile The appeale abating before declaration 18 If an appeale commenced by Writ doe abate before declaration so that the Court can not be informed of the yéere day and place where and when the felonie was committed In that Case the Court doth vse to examine the Coroner if he be present if there be any indictment depending of the same felony or not and if he say no then to send to the Shirife of the Countie where the felonie was supposed to be committed to know if hée haue any indictment or not and in the meane time to let the Defendant to mainprise or otherwise the Court will set the Defendant at libertie There was a time when if a felon had bin taken with the manoure A felon taken with the manoure and that the felon and the manoure had beene brought into the Court the Iudges would haue arraigned the offendor vpon the manoure without appeale or indictment Sed obsoletum 19 In euery arraignement which is to be at the Kings sute vpon an Appeale begunne by the appellant No arraignement at the Kings suite vpon a false declaration the declaration in the same appeale is intended to be once good and true for if it were neuer good and abated for that cause the appellee shall not be arraigned at the kings suite notwithstanding the abatement be after declaration And therefore if an appeale be abated by mis-naming of the Defendant 4. H. 6. 16 hée shall not be arraigned at the kings sute though the abatement be by the Plaintifes owne confession And yet in that case it might be said that the appeale abated by couin for that the said exception was not tried but confessed by the Plaintife And the same Lawe is if the appeale shall be abated by mis-naming of the Plaintife or of the Towne or for lacke of a materiall word And so it is if in an appeale the Defendant doe pleade Fi. Cor. 121 17. As p. 26. 11. As p. 27 18. Ed. 3. 35. Fitz. Cor. 3. 384. 387. 27. Ass p. 25 that the Plaintife is outlawed or is attainted of treason or felonie or otherwise is disabled to maintaine an appeale As if a woman doe bring an appeale of the death of her husband and the Defendant doth pleade that shee and her said husband were neuer accoupled in lawfull marriage or that shée hath married another husband Or that the appeale was not commenced within the yéere and day after the offence committed Or that the appellant hath an elder brother liuing to whome the appeale is giuen and not to the Plaintife And all those matters which shall be a Barre to the plaintife to bring the appeale shall also Barre the king to take any aduantage against the Appellée vpon the same appeale for in all these Cases it may appeare that the appeale was commenced without cause and grounded vpon false matter S. Br. 15. And yet it is otherwise where the appeale was at the first grounded vpon sufficient and true matter But in all the Cases aforesaid though the king cannot take an aduantage of the appeale against the defendant If not an Appeale yet an Indictment at the Kings suite yet he shal compell him to answer to an indictment of the same felony for that by these pleas the defendant is not discharged of the felonie though he be discharged of the appeale And further if the appellée be discharged both against the party and also against the King yet the Court may bind him to his good Abearing Good abearing Fi. Cor. 387 if they shall thinke it méete 13. Ed. 4. 8 3. Ed. 3. 10 20 If an Excommunication be pleaded against the plaintife in appeale The plaintife in appeale excommunicate notwithstanding the plea be thereby delayed yet the Defendant shall not be arraigned at the kings sute for the Plaintife may be absolued and then procéede in his appeale And therefore the appeale shal be continued vntill a certaine day to the intent that the Plaintife may in the meane time procure his absolution and during that time the Defendant shall be let to mainprise But if the appellant be outlawed The plaintife in appeale outlawed though the Outlawrie be not for felonie but for trespas 17. As p. 26 Fit Vtlawrie 47. yet by that meanes the Defendant shal be set at liberty aswel against the king as against the appellant Notwithstanding in that case there is no impossibilitie but the Plaintife might purchase his charter of pardon or reuerse the outlawrie for that it is erronious and thereby be enabled to pursue his appeale An Approuer pardoned the Appellée shall be discharged 21 If one be appealed by an approuer 47. E. 3. 5. 47. E. 3. 16. and the King doth pardon the approuer he that is appealed by the approuer shall be set at libertie without being arraigned at the Kings suite for by the pardon the felonie is extinct in him and so he ceaseth to be an approuer for the approuement shall continue no longer then the approuer is partaker of the felonie whereof the approuement is made Vanquishing one approuer 22 If thrée men doe become approuers seuerally against one man 7. Ed. 3. 11. of one and the same felony and he ioyneth battell with them all and doth vanquish that approuer which first ioyneth with him by that meanes he shal be acquit against them all and likewise against the King and the other two approuers shall be hanged But it is otherwise if the approuement be of seuerall felonies for in that case though the appellee doth ioyne battell with them all 25. Ed. 3. 42 and after vanquish that approuer which first ioyneth with him he shall be remaunded to prison vntill he hath ioyned battell with the other two for that there must be seuerall trialls where there be seuerall felonies and seuerall issues Examining an offendor condemned 23 If a man would become an approuer 21. Ed. 3. 18 and cannot be suffered by the Lawe for some disablement or for the impediments before mentioned yet before he shal be put to execution the Court will send the Shirife vnto him to heare who they be that he can accuse and
vpon the one shal be also an acquitall vpon the other By the letter of the said statute of Westm 2. this word Malice doth only referre it selfe to Abettors and Procurors but yet it is commonly taken to extend as well to the appellant as to them The Statute extendeth to all felonies 3 The said stat of West 2. saith when any is appealed of felony St. 13. E. 1. 12 this word felony is not only intended of such offences which were felonies at the time of making the said statute but also of all other offences which haue béen made felony by stat sithence the said statute And therfore in an appeale of rape which was made felony by the same stat of West 2. the plaintife was nonsute when the Enquest was to be taken and the def was arraigned at the kings suit Fi. Cor. 275 381. and found not guilty and the Iury was charged to inquire of the abettors The defendant acquited by battell 4 The words of the said statute of West 2. be When any doth acquit himselfe in due manner which may be intended as wel that the defendant shal recouer dammages where he doth acquite himselfe by battell St. 13. E. 1. 12 as where he doth acquite himselfe by the country But that acquital by battell is to be construed in this manner where the appellant when he is in the field will acknowledge his appeale to be false for that is a kind of vanquishment Fit Cor. 98. for it must not bée intended where the appellant is slain in the field séeing when the person of the appellant is dead the dammages be also gone for euer without any recouery to be had of them 5 It is to be noted that there is an acquitall in law as well 〈◊〉 an acquitall in déed for if two be appealed one as principall and the other as accessory and the principall is acquite by this acquitall the accessory shall recouer his damages against the appellant if the Enquest which tried the principall Where the accessory in appeale shall recouer damages were also charged vpon the accessory 2. 3. P. M. Dy. 120. 35. H. 6. 2. though they gaue no verdict of the accessory for in this case the accessory shall haue a writ of Conspiracy by the common Law because by a meane he put his life in ieopardy But it is otherwise if the principall be acquit and the accessory did not appeare but depended in proces for in that case he ought expressely to be acquit by verdict 41. As p. 24 or otherwise he shal not recouer dammages by force of this statute neither shal he haue a writ of Conspiracy by the common law St. 13. E. 1. 12 6 These words of the foresaid stat of West 2. be of great moment viz. whē any which is appealed of Felony doth acquite himselfe in due maner for if the def doth barre the plaintife of his appeale Where the def is said to acquite himselfe in due maner and where not he cannot recouer damages thereby against the plaintife except the barre be such as doth acquite the def of the Felony And therefore if the def doth plead that the appellant is a bastard or hath an elder brother or was neuer accoupled in lawfull mariage or such like pleas in barre and by these pleas doth barre the plaintife yet he shall not recouer damages against him for the def may be indicted againe of the same Felony and attainted 27. Ass p. 25 Fi. Cor. 77. notwithstanding by either of these pleas he is discharged of the appeale as well against the king as against the appellant for those pleas which do not trythe def innocency in the Felony do neuer giue him dammages any more then if he had pleaded in abatement of the writ of Appeale such a plea as had abated it For notwithstanding such a plea doth discharge him of the appeale as well against the K. as against the party yet it doth not discharge him of the felony Fit Cor. 12. And the like law is if in an appeale the def do barre the appellant by a demurrer in law yet he shal not recouer damages against him for the def innocency in the felony doth not by that meanes come to triall And so it is if in an appeale of the death of a man the def do plead to issue is foūd by verdict to kill the man in his owne defence 22. As p. 77. or by misaduenture in these cases he shall recouer no dammages against the appellant for this is no acquitall of the Felony because the def is inforced to purchase his pardon to purge him of the Felony and besides it doth appeare that this appeale was not commenced vpon malice Fi. Cor. 386. In like sort if the def in an appeale vpon his arraignmēt will demand his Clergy the Court wil take an Enquest of office to inquire whether he be guilty or not and the enquest doth find him not guilty yet by this acquitall he shall not recouer damages for in that he demaunded his clergy before triall he did rather in a sort confesse the Felony by implication then otherwise But if he had refused his clergy and put himselfe vpon the enquest who had acquited him then he had bin acquite in due manner according to the foresaid statute should haue recouered his damages And so it is if the def in an appeal hath the release of the appellant or the K. pardon will waiue them plead not guilty put himselfe vpon the countrey and is acquit he shall recouer damages yet he hath done a thing of record viz. by purchasing the K. pardon wherin by implication he doth confesse the Felony But if it were a pardon by act of Parliament 11. H. 4. 40 he could not weiue it If the def be acquit erroniously without due proces he shal not recouer his damages against the plaintife for that the words of the foresaid statute of West 2. be Se acquietauerit in curia Regis modo debito As 9. H. 52 where the def doth appeare by the Exigent vpon whom the Shirife hath returned Cepi corpus defendentis where he should haue returned Exegi feci and the defendant doth appeare vpon the Euidence and without taking aduantage thereof pleadeth not guilty to the appeale and it is so found for him yet some do affirme that he shall not recouer his dammages because he is acquit erroniously without due proces But others vpon greater reason do hold that the Error in the proces is not materiall Fi. Cor. 444. so long as there is no Error in the writ of appeale declaration or pleading for the def is arraigned vpon the originall Writ and not vpon the meane proces Acquite at the K. suit is only vpō an appeal 7 The foresaid statute of West 2. hath ordained St. 13. E. 1. 12 That when any which is appealed of felony
partie most interessed or grieued by the same murder or felonie is to prosecute sute against the saide offendor by Appeale and thereby to séeke reuenge against him for the wrong done to himselfe or his auncestor or else the offendor is to be indited at the Kings sute whose peace hée hath broken and whose lawe he hath offended and who hath a speciall interest in all manner of treasons and felonies to punish them to wéede them out of his kingdomes and dominions and to defend his subiects from them And therefore I am to expresse in this Chapter and the next what an Appeale of felonie is and what an Indictment is by whom for whom and against whom and in what cases they are to be begunne prosecuted and maintained what defences or pleas are to be made or pleaded by the supposed offendors vnto them and what counterpleas may be obiected against the same plees Appeale of death An Appeale is a plaint of one person made against another with an intent to attaint him of felonie by a course of Lawe prouided therefore which appeale may be brought against a woman couert without her husband against an infant and all others that can commit felonie and a woman may haue an appeale for the death of her husband Appeale by a woman of the death of her husband because the husband and wife be one flesh but of the death of none other by force of the Statute of Magna Charta which hath ordained That none shall be taken St. 9. H. 3.34 or imprisoned by the appeale of any woman for the death of any other than of her husband And therefore if a woman doe bring an appeale of the death of her father and the Defendant would admit it yet the Court will abate it 10. Ed. 4.7 Plow Com. fol. 85. because it is contrary to the said Statute Appellāt conueieth his title by a woman 2 As a woman shall haue no Appeale of the death of any other but of her husband No more shall any cosin of him that was slaine who maketh his conueiance in kinred by a woman haue any appeale of the death of him that is killed notwithstanding he be issue male and not female Appellant conueyeth his title by a woman and notwithstanding that the woman by whom he maketh his conueiance died in the life time of him 20. H. 6.46 Fi. Cor. 385 17. Ed. 4.1 of whose death the appeale is commenced As if a man haue issue one onely daughter who marrieth a husband hath issue a sonne and dieth and after the father of that woman is slaine In this case the sonne of the woman shall not haue an appeale of the death of his saide grandfather though hee be his next heire at the common lawe and inheritable to his land because his mother was foreclosed of it by the foresaid statute of Magna Charta and so likewise he which hath none other title thereunto but that which he deriueth from his saide mother Fi. Cor. 384 17. Ed. 4.1 But if he that was slaine haue none heire on the fathers side then the vncle or next of kinne on the mothers side shall haue the appeale yea though he doe conuey his title thereunto by a woman 3 By the auntient lawe of this Realme a woman could not haue an appeale of the death of her husband vnlesse her said husband were slaine betwéene her armes within the yéere and day before Neither could shée or any other haue an appeale vnlesse she or he were present at the death of the partie slaine and sée it But that Lawe was altered by the Statute of Gloucester St. 6. Ed. 1.9 whereby it was ordained That no Appeale shall be abated so soone as they haue béene heeretofore But if the appellant in an appeale doe declare the déede the yeare the day the houre The declaration in appeale of murder the time of the King and the Towne where the déede was done and with what weapon hée was slaine the appeale shall stand in effect And the appeale shall not be abated for default of fresh sute where a man doth sue within the yeare and the day after the déede done 50. Ed. 3.15 28. Ed. 3.91 27. Ass p. 3. 4 If a woman will haue an appeale of the death of her husband The woman must be the deads lawfull wife it is requisite that shée be not onely his wife indéede viz. de facto but also lawfully and in right viz. de iure for neuer accoupled in lawfull marriage is a good plea to barre her of her appeale And it shall be tried by the Bishop whether she be his lawfull wife or not 20. H. 6.46 12. El. Dyer 296. 5 It is requisite that a woman who will maintaine an appeale of the death of her husband shall liue sole and vnmarried The woman must liue vnmarried for by her second marriage her appeale is extinct though her second husband doe die within a yeare and day after the death of her first husband And if a woman doe bring an appeale of the death of her husband and hanging the Writ shée doth marry another husband her appeale shall abate for euer 11. H. 4.46 6 If a woman doe bring an appeale of the death of her husband A woman marrieth betweene iudgemēt executiō and doe pursue the Defendant vntill Iudgement And then after iudgement and before execution shée marrieth an other husband In this case shée shall not obtaine execution viz. the Defendant shall not be hanged at her sute for shée hath willingly lost the name of her first husband before shée hath obtained the effect of her sute and the reuenge which shée brought her appeale for Where appeale lieth but no dower 7 There be some Cases where a woman shall haue an appeale of the death of her husband though she be not endowable of the possession of the same husband As where her husband is attainted of treason 27. As p. 41 35. H. 6.58 and after one doth kill him his wife shall haue an appeale and yet she shall haue no dower And in like sort if a woman doe elope from her husband and after one doth kill him she may maintaine an appeale against the offendour but no writ of dower against his heire And many other Cases there be where a man was so seised of his lands that his wife is not thereof endowable by the Lawe And yet if hee be slaine she may maintaine an appeale against the manqueller Where the wife may haue appeale none other shall 8 Where a woman may haue an appeale of the death of her husband 20. H. 6.47 Kel fol. 120 none other shall haue it during her life nor after her death though the wife doe die within the yeare and day after the death of her husband and before the appeale commenced for that the appeale was once out of the blood it shall not be restored to his
doth acquite himselfe either at the appellants suit or at the Kings suit This suit of the K. is alwaies intended vpon an appeale when the def is arraigned vpon an appeale after that the appellant hath declared in his appeale and is Nonsute for if the def were acquite at the kings suit vpō an indictment of the same Felony yet he shall recouer no dammages And the manner how he shall recouer dammages being acquite at the kings suit doth somewhat vary from recouering of dammages at the parties suit for when it is at the kings suit he shall not recouer his dammages though he be acquite vntill he hath sued a Scire facias against the appellant to bring him into the Court againe being out of the Court before by his Nonsute But if he be acquit at the appellants suit he shall haue his iudgement to recouer dammages without suing of any further Proces And if a woman that is appellant be Nonsute and after doth take a husband Fit Damag 77. the Scire facias shall bée awarded against the wife onely B. What Iustices may inflict the penalty vpon the appellant 8 And though the foresaid statute of West 2. hath prouided St. 13. E. 1. 12 That the Iustices before whom the said appeale shal be heard and determined shall punish the appellant by a yeares imprisonment that punishment cannot be inflicted by the Iust of Nisi prius and yet by the statute of Anno 14. H. 6. St. 14. H. 6. 1 the Iustices of Nisi prius haue power to giue iudgement in Treason and Felony tried before them and that as well where the defendant is acquite as where he is attainted But yet they be not such Iustices as this statute doth meane 2. 3. P. M. Dy. 120. 14. E. 4. 14. 22. E. 4. 18. For that all the plea of Appeale was not heard before them but a parcell viz. the triall onely The dammages for seueral persons assessed seuerally 9 And whereas the said statute of West 2. would haue the Iustices in assessing of dammages for the defendant in an appeale St. 13. E. 1. 1◠to haue respect to his imprisonment arrest slander Therefore in an appeale brought against diuers if they be all acquite the dammages shal be taxed seuerally that is to say 8. H. 5. 6. Fi. Dam̄ 77. euery of the defendants shall haue his dammages taxed by himselfe for it may bée that one hath cause to recouer more then the other as if one were appealed as principall and the other as accessory or that the one were a gentleman or a man of greater estate and the other of a meaner degrée But yet this Recouery of dammages must be intended in one who is by the law enabled to recouer dammages for if an appeale be brought against a woman couert onely Fi. Cor. 276. without her husband as it must be vnles the husband committed felony with his wife the wife shall not recouer dammages though she be acquite And yet if the appeale be brought against the husband and wife together they be both acquite Fitz. Iudg. 108. then the dammages shal be seuerally taxed that is to say the husband shall recouer for his owne imprisonment and the husband and wife shall recouer iointly for the imprisonment of the wife St. 13. E. 1. 12 10 Though the foresaid statute of West 2. doth ordaine Where the appellant shall pay a fine to the king That the appellant shall be grieuously fined to the king yet that is to be intended where the appellant shall yéeld dammages to the defendant 9. H. 5. 1 for if the case be such as that the appellant shall not render dammages to the def then he shall not pay a fine to the K. but shal be amerced only as where an appeale doth abate by misnaming the appellant shal be only amerced And yet if the appellant be Nonsute after declaration 41. Ass p. 8. he shal pay a fine to the king and the Court will award proces against him for the same fine and though the defendant be after acquite at the kings suit by which meanes he shal recouer dammages against the appellant yet the appellant shall not pay a new fine to the king for that he hath paied it before And if the defendant be found guilty when he is tryed at the kings suit the appellant hath no remedy to recouer the fine which he hath paied before for by the common Law the plaintife in an appeale should haue paied a fine for his Nonsute which is the cause that a fine shal be paied by the appellant presently vpon his Nonsute St. 13. E. 1. 12 11 And for that the words of the said statute of West 2. be In what case inquiry shal be of the abettors If the appellants be not able to recompence the dammages inquiry shal be made by whose abetment the appeale was commenced by those words it is to be gathered that if dammages be not to be recouered against the appellant there shall neuer any inquiry be made of the abettors as in the cases aforesaid And where the words of the statute be If the appellant be not able to recompence the dammages it is intended all the dammages for if the appellant be sufficient to render part of the dammages 8. H. 5. 6. 8. Ed. 4. 3. but not the whole inquiry shal be made of the abettors and they shall pay the residue St. 13. E. 1. 12 12 The foresaid statute doth ordaine That inquiry shal be made of the abettors if the appellée do desire it so that the Court of Office ought not to inquire thereof but at the appellees request And if an appeale be brought against two and one of them is acquit by verdict if the Court do inquire of the abettors at the request of the same defendant and the Enquest doth find that there be no abettors and after the other defendant is arraigned and also acquite and if he do request also that inquiry may be made of the abettors the verdict of the former Enquest wherunto he was not priuy neither against which he shall haue any remedy being but an Enquest of Office shall not bind him but according to the words of the said statute inquiry shall be made againe at his request of the abettors for though it be commonly inquired of the abettors by the same Iury which doth trie the def yet their inquiry therein is but an Enquest of office for if they do find abettors the abettors when they doe appeare may trauerse all that the Enquest hath found As if they haue found that the appellant was not sufficient What pleas the abettors may plead or that such a man or such a one were abettors 8. Ed. 4. 3. because they that be supposed abettors may say by protestation not confessing the felonie for their plea that the appellant is sufficient or that they were no abettors for
excommunication in the plaintife 5 Who are mainpernable who not Bailement by the Shirife With-holding of Prisoners mainpernable 6 In what cases no mainprise by the common Law The King or Iustices commandement 7 The Marshall shall baile no prisoner The Iustices ordinarie or absolute commaundement 8 Mainprise for offendors in Vert or Venison 9 In what case hee that is outlawed may be bayled 10 Mainprise during an approuers life 11 Maineprise vpon good name The principall in Burglary and Robbery mainpernable 12 No bailement for a prisoner attainted 13 Bailement of offendors by Iustices of Peace 14 Bailement of offendors by the Shirife 15 Bailement by Shirifes and others 16 Imprisonment at the Kings pleasure 17 The difference betweene bailement in Felony and in a personall Action 18 Mainprise is matter of Record Confession of the offence Fol. 184. 1 An offendor in felony pleadeth one of three pleas 2 Confession of the offence before the Iudge vpon the prisoners arraignement may bee in two sorts Confession of the offence must be free and without menace 3 He that doth confesse his offence before the Iudge doth become an approuer 4 Confession of the offence before the Coroner whereupon abiuration doth ensue Approuer Fol. 185. 1 Who is an Approuer An Approuer shal be banished 2 Of what offences approuement may be 3 Approuement in an Indictment and not in an appeale 4 Before whom one may approue 5 How an Approuer shall vse himselfe No approuing after pleading An Approuer must tell truth 6 An Approuers oath 7 An Approuers wages 8 An Approuer set at liberty An Approuers appeale must be certaine 9 Proces against the appellees after the approuement 10 Pleas for the appellee against the approuer An Approuer attainted or conuict of Felony 11 An appellee cannot appeale others 12 An Approuer not in prison for felony or at liberty 13 The appellee an honest and credible man 14 Generall pleas in barre of the appeale 15 Where the king may pursue an Appeale begun 16 The appellants release to the appellee 17 An Approuer confesseth his Appeale to be false 18 An Appeale abating before declaration A Felon taken with the mannoure 19 No arraignment at the kings suit vpon a false declaration Where if not an appeale yet an Indictment may bee at the kings suit 20 The plaintife in the appeale excommunicat or outlawed 21 An Approuer pardoned the appellee shal be discharged 22 Vanquishing of one of the approuers 23 Examining of an offendor condemned Sanctuary and Abiuration Fol. 189. 1 What Sanctuarie is 2 What Abiuration is 3 All Sanctuaries be extinguished Abiuration by the common Law Abiuration to a place within the Realme 4 No abiuration for Treason 5 No abiuration for the robberie of a Church 6 No abiuration for a man attainted 7 No abiuration for a man before abiured 8 Where an offendor may bee drawne out of the Church by violence The offendors confession before the Coroner 9 Tarrying in a Church aboue the time limitted 10 The manner of Abiuration The oath of Abiuration 11 The attire of an abiured person 12 The vsing of persons abiured 13 The abiuration broken death ensueth A Clarke need not to abiure 14 Where no Felony no abiuration for Felony 15 The abiured pleadeth that he is not the same person The Kings pardon of Abiuration 16 Abiuration by a Recusant 17 Abiuration by a Popish Recusant 18 Abiuration by him that committeth Trespas Pleading not guilty Fol. 192. 1 The plea of not guilty the most common for a prisoner One may plead not guilty after other pleas 2 Where vpon the plea of not guilty counsel shal be allowed and where not Triall by Battaile Fol. 193. 1 Triall of not guilty by Battaile or by the Countrey 2 The forme of triall by Battaile 3 The reason why the defendant in an appeale may be tried by battaile 4 Counterpleas to the Battaile 5 Taken with the manoure 6 Breaking of prison 7 Le ts of triall by battell on the plaintifes part 8 Priuiledges of the appellants person The King A Citizen of London 9 No wager of battell in an appeale of Rape 10 One fighting with seuerall men 11 An Appeale by an approuer 12 The appellee wageth battell and then becommeth blind Triall by Peeres Fol. 196. 1 The triall of the plea of not guilty by Peeres 2 The forme of arraignement and triall of a Peere of this realme 3 By whom Peeres appealed shal be tried By whom Ladies shall be tryed 4 The triall of Bishops Arraignement and Tryall in Parliament 5 Triall of Treason committed in Ireland 6 Triall of Misprision of Treason The number of Peeres at the triall 7 Triall of Peeres by Peeres in all cases of Treason and Felonie Triall by the Countrey Fol. 198. 1 Triall of the plea of not guilty by the countrey 2 Triall by the country of forraine pleas A man stricken vpon the Sea dieth vpon the land 3 The Proces against the Iurie The Proces in an Appeale and not in an Indictment 4 Where a Nisi prius is grauntable in an Appeale 5 Remaunding of prisoners out of the Kings Bench into the Countrey 6 Triall of Felonies committed by English men in Scotland 7 The prosecutors and witnesses bound to giue euidence 8 The accessary tried though the principall be not 9 Euery Iuror must haue fiue pounds of freehold 10 The offendor shall forfeit no lands 11 A like Act made in Scotland 12 Scottishmen repairing into England to giue euidence shal be free from arresting 13 The offence shall be layed where it is done 14 Hee that is once tried shall not be eftsoones called into question 15 None shall bee sent out of England to receiue his tryall 16 The Iurors shall allow of or reiect the witnesses Challenge Fol. 201. 1 Where the prisoner is allowed to challenge peremptorily Seuerance in challenges 2 Which be challenges vpon cause for that hee was an indictor 3 Challenge for want of Medietatem linguae 4 Challenge for want of sufficient freehold 5 Challenge for the king 6 A man outlawed of Felony shall haue his challenge 7 A Iuror challenged for that he is an Alien a Villaine or Outlaw Euidence Fol. 204. 1 Some bound to giue euidence against an offendor let to baile 2 Some bound to giue euidēce against an offendor imprisoned 3 Restitution of goods vpon an attainder by euidence 4 Euidence giuen by a stranger 5 There must be two accusors to giue euidence in Treason 6 Euidence or accusors in high Treason 7 Euidence against abettors to offences 8 Euidence on the defendants part in Felony Verdict Fol. 206. 1 A Verdict at large may bee giuen in Felony 2 The Verdict sometime lesse penall then the Indictment 3 The Verdict sometime more penall then the Indictment 4 Where the Iury shal find who killed the dead man Clergy Fol. 207. 1 What Clergy is 2 Who shal not haue his clergy by the common Law 3 A committer of Sacriledge 4 The habite or tonsure of a Clerke 5 Clergie
to the plaintife was of the plaintifes owne assault and in defence of the defendant Iustifiing in his owne defence And likewise it is a good plea in barre in an appeall of maihem for the defendant to plead the plaintifs release made vnto him after the supposed offence done of all actions personals or of all actions The plaintifes release or of all appeales or of all demaunds for in this case the plaintife is but to recouer dammages 7. H. 4. 30. 66 If an appeal of maihem be brought against diuers Execusion in appeal of maihem one of them doth appeare in court and confesse the maihem and is committed to the Marshalsea and the plaintife hath iudgement against him he can not sue against the residue vnlesse he will suffer him that hath confessed the maihem to goe at liberty for if he hath iudgement and the body of him who confessed the maihem to remaine in prison that shall be an execution for this whole maihem 67 The Sages and Iudges of the land in former ages did hold it for law An action of Trespas after an appeal of maihem that if one doe assault Fitz. Coron̄ 110. 22. Ass p. 82 beate and maihem an other and the partie maihemed doth bring an appeall of maihem against the offendor and recouer dammages against him yet after he may haue an action of Trespas of assault and battery against the same offendor and recouer dammages for his beating and the recouerie of dammages in the appeal of maihem shal be no plea in barre against the plaintife for the appeal doth only medle with the maiheming not with the beating But if the plaintife do bring an appeal of maihem in the Kings bench 43. Ass p. 39 and after apparance be nonsuit in the same and then doe bring an action of Trespas of assault and batterie for the same fact Then the defendant may plead the same appeal and nonsuit in barre against the plaintife and it is a good plea. 41. Ass p. 16 Co. Lib. 4. 43. But of late yeares viz. An̄ 31. Eliz. it was adiudged that in this and all cases when the plaintife for one wrong and iniurie is but to recouer dammages he shall not be for that cause satisfied twice for one offence And in these two actions of appeal of maihem and trespas the plaintife shall onely recouer dammages And therefore it was adiudged a good plea in barre in an appeal of maihem to plead that the plaintife had before brought an action of Trespas against the defendant of assault battery wounding and had recouered dammages therein and to auerre that the same assault batterie and wounding and this maiheming were all one offence 68 As the law hath prouided remedies to punish those who by menace Restraint of affraies by Iustices of peace assault battery imprisonment or maiheming do breake the peace So hath it alwaies had a vigilant eie by anticipation to preuent many others that would breake the peace by any of the meanes aforesaid and therefore hath from age to age appointed méet magistrates and watchmen to whose charge specially as selected Sentinels she did commit the preseruation of the peace who in times past before the raigne of King Edward the third were called Conseruators of the peace Stat. 1. E. 3. 26. and sithence they haue béen termed Iustices of peace because they be Iudges of record or otherwise they be named Commissioners of the peace because they haue and deriue their authority by the Kings Commission who him selfe being the chiefe and generall Conseruator and Preseruer of the peace throughout all his Dominions doth by his seuerall Commissions commit some particles of his authoritie touching the continuance of the peace and maintenance of certaine of his Lawes to some chiefe and select men in all the parts of the Realme whom he taketh to be the most méete men for the same in respect of their integritie wisdome learning courage and liuelyhood The forme of so much of which Commission as toucheth the Peace and good Abearing is this Iacobus c. praedilecto fideli Conciliario nostro Thomae domino Elsmere domino Cancellario nec non praedilectis A.B.C.D.E.F.G. H.I.L.M.N.O.P. c. The Commission of the Peace Sciatis quod assignauimus vos coniunctim diuisim quemlibet vestrum Iusticiarios nostros ad pacem nostram in Comitatu nostro buck conseruand ' ac ad omnia ordinationes Statuta pro bono pacis nostrae ac pro conseruatione eiusdem pro quieto regimine gubernatione populi nostri aedita in omnibus singulis suis articulis in dicto comitatu nostro tam infra libertates quam extra iuxta vim formam effectum eorundem custodiend ' custo dire faciendum Et ad omnes contra formam ordinationū vel Statutorum illorum aut eorum alicuius in comitatu praedicto delinquentes castigandū puniendum prout secundum sormam ordinationū Statutorū illorum fuerit faciendum Et ad omnes illos qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorū suarum minas fecerint ad sufficientē securitatem de pace vel bono gestu suo erga nos populum nostrū inueniendam coram vobis seu aliquo vestrum venire faciendum Et si huiusmodi securitatem inuenire recusauerint tunc eos in prisonis nostris quousque huiusmodi securitatem inuenirent saluo custodire faciendum Et ideo vobis cuilibet vestrum mandamus quod circa custodiam pacis ordinationum Statutorum omnium singulorum caeterorum praemissorum diligenter intendatis Et ad certos dies loca quae vos vel aliqui duo vel plures vestrū vt praedict ' est ad hoc prouideritis super praemissis faciatis inquisitiones premissa omnia singula audiatis terminetis ac ea faciatis expleatis in forma praedicta factur̄ in de quod ad Iusticiam pertinet secundū legem consuetudinem Regni nr̄i Angliae saluis nobis amerciamentis alijs ad nos inde spectantibus 69 And though there be many other offences mentioned in the said commission which the Iustices of peace are by force of the said Commission to enquire of heare and determine and to punish the offendors therin according to the lawes and Statutes of the Realme Yet as it appeareth by the words of the said commission the same hath his chiefe care and respect of the peace to the preseruation thereof And to the intent that the said Iustices or commissioners should the better remember and respect their charge and dutie they are called Iustices or commissioners of the peace and not commissioners of justice of conscience or equitie c. And so their names together with their offices and duties be in a sort written in their foreheads And the restraining or punishment of all the other offences mencioned in the said
case of felony Relieuing them which be assembled 35 If any wife or seruant of any of the same persons 1. M. 12. or any other person whatsoeuer shall willingly and without compulsion bring send deliuer or conuey any money harnesse artillerie weapon meat bread drinke or other victuall to any person or persons so beeing assembled as is aforesaid during such time as he or they shall so be assembled or be together as is aforesaid then euery wife seruant or other person so bringing or conueying c. any of the foresaid things to the same persons so beeing assembled together in forcible manner or to any of them and not departing to their houses or dwelling places vpon request or commandement made vnto them as is aforesaid shall bee adiudged a felon shal suffer execution of death as in case of felonie Vnlawful assemblies aboue two and vnder twelue 36 If any persons aboue the number of 2. and vnder the number of 12. 1. M. 12. beeing assembled together shal intend goe about practise or put in vre with force of armes vnlawfully of their owne authoritie to murder kill or slay any of the kings subiects or to ouerthrowe cut breake or cast downe or dig vp the pales hedges ditches wall or other closure of any parkes or parke or other ground inclosed or the bankes of any fish-pond or poole to the intent that the same or any of them from thenceforth should remaine open not inclosed or void or to haue common or way in the same parks or parke or other grounds or ground inclosed or in any of them or to destroy any parkes or parke or fish-pond or poole or any warrens or warren of conies or any doue-houses or to pul or cut down any house barne or mil or to burne any stacke of corne or graine or to alter defaulke or abate the rents or yearely value of any mannors lands or tenements of any of the Kings subiects or the price of any victual corne or graine or any other thing vsuall for the sustenance or apparell of men and being required or commanded by any Iustice of peace or the sherife of the countie or by any mayor bailife or bailifes or other head officer of any citie or towne corporat where such assembly shall be had by Proclamation to be made in the Kings name to retire or returne to their habitations places or houses and they so required by such proclamation shall not so do but after that shall in forcible manner in forme aforesaid attempt to do or put in vre any of the things last aboue mentioned then euery of the same persons beeing aboue the number of two and vnder the number of twelue shall suffer imprisonment of his or their bodies by the space of one whole yeare without baile or mainprise The remedie of the parties grieued And also if any person or persons shall be damnified or hurt by the doing committing or putting in vre of any vnlawfull act or thing aboue mentioned then all and singular persons so damnified and hurt shall recouer and haue dammages with the costs of their suit sustained in that behalfe trebled against the offendors therein 1. M. 12. 37 If any persons aboue the number of two shal vnlawfully of their own authoritie assemble together to the intent with force and armes to do practise Raising of power to suppresse vnlawful assemblies or put in vre any of the things aboue mentioned Then it shall be lawfull to euery Iustice of peace to euery Sherife in any countie beeing within the K. dominions and to euery mayor bailife and other head officer of any citie or towne corporat for the time he shall be in office or any other person or persons hauing the K. commission or Letters from his highnes as wel to raise and assemble the kings louing subiects in maner of warre to be arraied in such great number as he or they then shall thinke meet or able to the intent by violence of strength to suppresse apprehend and take the said persons that shall bee so vnlawfully assembled And if the said persons so vnlawfully assembled after such cammandement or request by proclamation made shal continue together and not endeauour themselues to returne towards their habitations houses or places from whence they came in as short time as they may conueniently Then it shall be lawful to euery I. of peace sherife and also euery mayor bailife and other head officer of any citie or town corporat to euery other person hauing authoritie as is aforesaid after such commandement or request by proclamation made and to such persons as shal be assembled with any Iustice of peace or sherife or with any mayor bailife or other head officer of any citie or town corporat and with euery other person hauing authoritie as is aforesaid to suppresse apprehend take those persons so vnlawfully assembled which after such proclamation made shall continue together and not endeauour thēselues to returne towards their habitations c. And if the said persons so vnlawfully assembled together or any of them shall fortune to be killed slaine maihemed or hurt in or about the suppressing or taking of them then euery such Iustice Sherife Maior c. and euery other person hauing authoritie as is aforesaid and all and singular persons by him or them assembled shal be frée discharged and vnpunishable as well against the king as against all and euery other person and persons of for or concerning the killing maiheming or hurting of any person or persons so vnlawfully assembled that shall be killed slaine maihemed or hurt about or by occasiō of taking or suppressing of thē c. 1. M. 12. 38 All and euery Copieholder and Customary holder being a yeoman artificer husbandman A copieholder being required refuseth to serue or labourer being of the age of xviij yeares or more vnder the age of lx years not sicke impotent lame maihemed neither hauing any other iust or reasonable excuse or cause to the contrary and beeing required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commission or letters c. they declaring their said authoritie or being required by the immediat Lord or Lords of whom such copie or customary holds then shall be holden to serue the King for any the causes aboue rehearsed and refuse so to doe shall only during the life of such person or persons so refusing forfeit to his Lord or Lords of whom such copie or customarie holds then shal be immediatly holden should be holden during the life of such person or persons so refusing in case he had not refused all their copie customarie holds And it shal be lawful to euery such Lord c. his heirs or assignes of whom such copy or customary holds shal be immediatly holden should haue bin holden in case that such persons or persons had not so refused to enter
blood againe If the husband be killed by his wife The husband killed by his wife his sonne shall haue an appeale 33. H 8. Dyer 50 18. Ed. 4.1 And yet if in that case the King doe pardon the wife all treasons the sonne shall be barred of his appeale Appeale of death by the heire 9 If he that was slaine had no wife liuing at the time he was killed then his next heire by the common Lawe if he be male shall haue the appeale But if hée which bringeth the appeale be the next heire male to him that was slaine yet if there be another liuing which is his heire by the common Lawe though not his heire male his appeale shall abate As if he that was slaine had issue a daughter and no sonne 27. As p. 25. Fi. Cor. 384 his brother cannot maintaine an appeale against the offendor though hée be his next heire male because he is not next heire by the common Lawe to him that was slaine but his daughter is And by the same reason a Bastard nor the youngest sonne which doth inherite lands in Borough English A Bastard Heire in Borough English shall not maintaine an appeale because neither of them is heire by the common Lawe It was a custome in olde time if one were found guiltie in an appeale of murder that his wife The maner of a murderers death and all the nearest of his kinne which was murdered 11. H. 4.11 Plo. com 306 should drawe the felon who committed the murder by a long rope to the place of execution An appeale dieth with the Appellant or by his non-suite c. 10 This appeale of the death of the auncester is so tied and affixed to the next heire male at the Common Lawe of him that was slaine that if it be once attached by him although that hée die hanging the suite or be non-suite therein or doe discontinue the suite and that within the yéere 38. H. 6.13 9. H. 7.5 16. H. 7.15 yet the appeale is extinct for euer because it is but a personall action and not auncestrell for he that was slaine could not haue maintained it and therefore being but personall it doth die with the person of the appellant But it is otherwise if the appeale were not attached by the heire during his life 11. H. 4.11 â—0 H. 6.46 but that hée died before hée brought his appeale or died in the life of his auncester that was killed In that case hée which is next heire male liuing shall haue the appeale 9. H. 7.5 Stamf. fo 59 11 If the eldest sonne before the appeale commenced and within the the yeare doth release the appeale and then dieth The heire doth release and die the second sonne and euery other which claimeth as heire to the partie slaine shall bée barred thereby 16. H. 7.15 38. H. 6.13 12 If the eldest sonne doe bring an appeale and hath iudgement Recouery and death before execution and before execution of the offendor dieth his heire shall not haue execution for if he should he is to haue it as heire to him that recouered and not as heire to the partie slaine which cannot be for hée that demaundeth reuenge of his auncestors death must make himselfe immediate heire to the same auncestor which was slaine or otherwise his sute shall not be allowed which the heire of the eldest sonne in this case cannot doe 13 If the eldest sonne after the title of appeale accrued vnto him The eldest sonne disabling himselfe or during the life of his auncester that was slaine doe disable himselfe by attainder of felonie or by being a Monke a Priest or mayhemed by the Defendant Fitz. Cor. 235.322 or by any other cause So that by such disabilitie hee cannot haue an appeale yet the second sonne shall not haue it 14 If the eldest sonne doth kill his father or his mother Killing father mother brother or wife the second sonne shall haue an appeale against him Fi. Cor. 459. And if there be thrée brethren and the middlemost killeth the elder brother the youngest brother shall haue an appeale against him And yet in the foresaide cases hée that bringeth the appeale 18. Ed. 4.1 33. H. 8. Dyer 50. is not heire to him that is slaine And if the husband doe kill his wife his sonne shall haue an appeale against him 1. H. 4.6 Littl. vill 15 If the Lord doe kill his Villaine the heire of him that was slaine The Lord killeth his villaine may haue an appeale against his Lord notwithstanding that the Plaintifs in the appeale is villaine to the Defendant for the villaines heire doth not sue for the recouerie of lands goods or liberty from the Lord but onely for a lawfull reuenge of his auncesters death And if the villaines heire should not haue an appeale in this case the said offence should remaine vnpunished by appeale for none other may pursue it 41. As p. 14. 45. Ed. 3.25 27. Ed. 3.83 Kel fol. 120 32. As p. 8. 16 An Infant An Infant within the age of twenty and one yeares may haue an appeale of the death of his auncester and in like sort hée may haue any maner of appeale But notwithstanding the plea shall remaine to be tried vntill he come to his full age of one and twentie yeares for that in this case the Defendant cannot wage battell against him Attamen quaere A man of 70. yeares of age 17 A man of the age of thrée score and tenne yeares may haue an appeale of the death of his auncestour Fi. Cor. 385 and in like sort may haue any manner of appeale and yet being of that age hée shall put the Defendant from waging of battell with him Disabilities to bring an appeale 18 If the Plaintife which ought to sue the Appeale be attainted of treason or felonie or a Monke or a Priest or mayhemed by the Defendant Fi. Cor. 32â— he shall not haue an appeale Disabilities in the appellant 19 A man that is not of perfect memorie or that is deafe and dumbe Britton or a Lazar or a foole naturall shall not haue an appeale of death nor any other appeale For battell cannot be waged against any of them euery of them being vnperfect to performe the same Pleading that the appellant hath an elder brother 20 If one brother doe bring an appeale of the death of his auncestor 7. Ed. 4. 15 it is no plea for the appellée to say that the said auncestor at the time of his death and after the Writ purchased had an elder brother named B. to whom the appeale is giuen and not to him that is plaintife for it may be that the same B. was his brother of the halfe bloud And therefore the surest way is to begin his plea with the father of him that was slaine as to say that such a man tooke to
his wife such a woman and had issue betwéene them B. their eldest sonne and hee which was slaine their second sonne and the appellant their youngest sonne and that he which was slaine died liuing B. their eldest sonne The appellāt in appeale of death may sue by atturney 21 For that by the common Lawe hée that will sue an appeale must sue it in proper person which sute is long and costly and maketh the partie appellant wearie to sue For the reformation whereof it was ordained by the Statute of Anno 3. H. 7. St. 3. H. 7. 1 That the Appellant in any appeale of murder or death of a man where battaile by the course of the common Lawe lieth not may make his atturney and appeare by the same in the saide appeale after it is commenced to the end and Execution of the same Who shall maintaine an appeale of robberie 22 As concerning an appeale of Robberie who shall maintaine it Fi. Cor. 100 and for what causes it is to bée obserued That hée from whom the goods be taken may haue the same appeale As the Seruant shall haue an Appeale of Robberie if the goods of his Masters bée taken out of his custodie and possession and yet hée had onely the possession but no propertie in the goods robbed A Carrier And so it is if a Stranger bee commaunded to carrie another mans goods and as hée is in carrying of them 2. Ed. 4. 15. hée is robbed of them and they taken from him In this case the same Stranger may haue an Appeale of Robberie against those Robbers because hee standeth charged to him who commaunded him to carry the same goods Fi. Cor. 357 23 A woman A woman may haue an appeale of robberie and so may an infant An Infant Likewise Executors Executors may haue an appeale of Robberie of a Robberie of the Testators goods done to themselues but not done to their Testator for if a man be robbed and after maketh his Executors and die the Executors shall not haue an appeale of Robberie for an appeale being a personall action dieth with the partie and shall not accrew to his Executors Fit Cor. 17. 24 A Villaine Villaine shall not haue an appeale of robberie against his Lord Lord. for any goods robbed or taken from him by his said Lord Because all the goods of the Villaine be the Lords at his pleasure 17. Ed. 3. 13 25 One may haue an appeale of robberie for the King or the Quéene Appeale for the King or Queene Stealing the goods of a mā attainted of treason as of any iewelles plate or other goodes of the Kings or Quéenes robbed or taken from him 11. H. 4. 40. And a man may be indicted of felonie for the stealing of goods of another that was attainted of Treason which goods by the said attainder were forfeited to the King 26 There be some Cases where one may haue an appeale of robberie An appeale of robbery done to an other though the robberie was not done to him but to another as if there be two marchants Fi. Cor. 392 or other tradesmen that doe merchandize or occupie their goods in common and one of them is robbed and slaine In this case the other merchant or tradesman may haue an appeale of robberie against the Robbers And in like sort if one doe steale my goods from me and another doth steale them from him In this case I may haue an appeale against the second felon because by the first taking the propertie was not out of me for a felon doth not claime any propertie in the thing stolen in such sort as hée doth 4. H. 7. 5. 13. Ed. 4. 3. who taketh a thing as a trespassor 27 Touching an appeale of rape Appeale of rape and who by the Lawe shall maintaine the same it is to be noted That if a woman sole be rauished she may haue an appeale of rape 8. H. 4. 21. But if a woman married be rauished she cannot haue an appeale without her husband 28 If a woman couert be rauished An appeale where a woman rauished consenteth and after she doth consent to the rauisher her husband onely shall haue an appeale of rape by the Statute of Anno 6. Ric. 2. St. 6. R. 2. 6 the words whereof be these It is ordained that wheresoeuer and whensoeuer any Ladies Noblemens daughters or other women be rauished and after the same rape committed doe consent to the rauishers as well the rauishers as they that be rauished and euerie of them shal be disabled and be disabled ipso facto to haue or challenge all manner of inheritance dower or ioint feoffment after the death of their husbands and auncestors And the husbands of such women if they haue husbands or if they haue no husbandes liuing then their Fathers or other their next knismen in blood shall haue the sute to prosecute and may pursue against the same offendours and rauishers in this behalfe and to conuict them of felonie though the same woman after the Rape doe consent to the Rauishers And in this case the Defendant shall not wage battell but the truth of the matter shal be tried by the Countrie S. Felonies by Statute 4. A lawfull husband 29 The wordes of this Statute be That the husbands of such women c. which is to be intended of her lawfull husband That is to say that her husband in right and possession shall haue the Appeale 11. H. 4. 14. for neuer accoupled in lawfull marriage is a good plea in barre against him And in like sort it is if the appeale be brought by the husband and wife because the appeale is in the right and so hée must be her lawfull and rightfull husband that must maintaine the appeale alone or iointly with his wife Where the father or kinsman shal haue an appeale of rape 30 This Statute of 6. Ric. 2. doth giue the appeale for default of the husband to the father or to some other their next kinsman in blood and so by the expresse words of this Statute an appeale of rape is giuen to the father and yet hée shall not haue an appeale of the death of his sonne or daughter And where the said statute doth giue the appeale for default of the husband to the father or c. That is to be intended where the woman doth consent to the rauisher St. 13. E. 1. 34 for otherwise the woman shall haue an appeale vpon the statute of Westminster 2. 31 If a Lord doe rauish his Niefe A Lord rauisheth his niefe Fit Cor. 17 she shall not haue an appeale of Rape against him But the King shall punish him by indictment Pledges in rape 32 It appeareth by the statute intituled Officium Coronatoris St. 3. Ed. 1. That if any be appealed of rape hée shall be attached by foure or sixe pledges if
countie where the rauishment was committed 3. H. 7. 12. And though shee doe declare of the taking of her in another countie yet it shal be tried onely in the countie where the appeale is brought for the declaring of taking of her in another countie was but surplusage and néeded not to haue béene inserted which doth not cause her count to abate And in this case the woman appellant shall recouer nothing but the defendants death for the felonie which she shall obtaine in respect of his rauishment of her in the countie wherunto he forcibly carried her wherein only the felonie was committed Appeale of Robberie 39 By the same reason if a man doe take another by force in one countie 3. H. 7. 12. and then carrie him into another countie and there robbe him or kill him an appeale of felonie shal be commenced onely in the countie where the robberie or murder was done for the taking and carrying him away out of the first countie was but trespasse and there was no felonie committed vntill the robberie or murder was committed Threatning in one county to bring money into another 40 If one man doe threaten another in one countie that he will kill him if he doe not bring him a summe of money into another countie such a day 44. E. 3. 14 4. H. 4. 3. In this case if he that is threatened doe in respect of that menace carrie and pay the said summe of money to him that threatened him according to his promise in the said other countie this is robberie though the partie néeded not to haue paid the said money according to his promise for that his said promise was by menace and not voluntarie nor vpon cause And there is reason that the appeale of robberie shal be commenced in the countie where the money was paid and not in the countie where the menace was made for the effect and successe of the matter maketh it felonie which is the paiment of the money and not the first cause which was the threatening Goods robbed caried into diuers coūties 41 If a felon commit a robberie in one countie 7. H. 7. 44 4. H. 7. 5. and then carrie the goods stolen into diuers other counties hee that is robbed may haue his appeale of felonie in which of those Counties he will for the felon committeth felonie in euerie of the Counties Co. li. 7. 2. 26. As p. 32. whither he carrieth any of the goods And in which of those Counties the partie robbed doth commence his Appeale of Felony there it shal be tried for the propertie of those goods was alwayes in the first and right owner of them But he that is robbed may commence his Appeale of Robberie onely in that Countie where hee was robbed for there is no robberie done but in that Countie onely But if a man being in one Countie doe procure another man to commit a robberie in another Countie 29. H 8. Dyer 40 which he doth accordingly in this case the partie robbed shall haue his Appeale of Robberie against the said procurer as accessorie to this felonie in the Countie where the procurement was and not where the robberie was committed for there was his felonie committed where he did persuade and procure the robberie to be done 42 He that may pursue an Appeale is at his choyce whether he will haue it by writ Britton or by bill If he pursue it by bill Before Whōe an appeale shal be broght then he must find to the Sherife in the full Countie two sufficient pledges being of the Countie where the felonie was committed and distrainable within the sayd Countie that hee shall prosecute his Appeale according to the law of the Realme and he shal be thereunto receiued And then the Coroner shall enter his Appeale and the names of his pledges 22. As p. 97. and after the Baily of the place where the felonie was committed shall be commaunded that he shall bring the bodies of those that be appealed to the next Countie Court to answer to the plaintife And if the Baily doe answer at the second Countie Court that he cannot find them then it shall bee ordained that they which be principall Appellees of the fact shall bée solemnly commaunded to yéeld to the Kings peace and to appeare and stand to the answer of such a felonie whereof they be appealed And so they shall be demanded from Countie to Countie vntill they do appeare or bee Outlawed And yet because the Statute of Magna Charta hath ordayned That no Sherife Constable St. 9. H. 3. 17 Escheator Coroner or other Bailife of the Kings shall hold plea of the Crowne It is agréed for law that vpon an Appeale commenced before the Sherife and the Coroners although they may award proces against the Appellées vntil the Exigent yet they cannot award the Exigent against the Appellée if he do not appear neither if he do appear they can cause him to answer but onely they may commit him to prison and that by force of the sayd statute of Magna Charta 43 When an appeale is commenced before the Sherife and the Coroners in the countie it may be remooued into the Kings bench by a Certiorari Remoouing an appeale out of the countie which must be awarded out of the Chauncerie or out of the Kings bench and is to be directed to the Sherife and the Coroners which prooueth that an appeale is begunne and of Record as well before the Sherife as before the Coroners according to the Statute of West St. 3. E. 1. 10 1. which hath ordained That the Coroners shall lawfully attach and represent the pleas of the Crowne and that the Sherife shall haue counter-rolles with the Coroners as well of appeals as of Enquests of Attachments or other things that doe belong vnto this office And therefore a Certiorari to remooue an appeale directed to the sherife onely is voyd 4. H. 6. 15 and an appeale of murder may be commenced as well before the Sherife as before the Coroners as it is prooued by these words of the Statute of 3. H. 7. St. 3. H. 7. 1 viz. The wife or heire of the person slaine or murdered as case shal require may commence their appeale in proper person at any time within the yeare after the felonie done before the Shirife and Coroners of the Countie where the said felonie and murder was done or before the King in his Bench or Iustices of Gaole deliuerie 44 An appeale by Bill may be commenced before Iustices of Gaole deliuerie An appeale before Iustices of Gaole deliuerie but then the Appellée at the time of the Appeale begun against him 13. H. 4. 10. 9. H. 4. 2. must be prisoner in the same Gaole whereof those Iustices are to make deliuerie or else such an appeale is not to be receiued Or otherwise one of them at the least against whom and others the
said appeale is entred ought to be prisoner in the same Gaole and if not the same appeale is void S. Approuers 19. St. 28. E. 1. 9. H. 4. 2. Yet an approuer may appeale others that are not in prison but at large which is by force of the statute of 28. Ed. 1. de Appellatis And when an appeale is commenced before Iustices of Gaole deliuerie against diuers whereof there is but one in prison before them this appeale ought to be remooued into the Kings bench by a Certiorari and from thence proces shall be awarded against them which be at large Anno 1. M. Dyer 99. And Iustices of Assise may hold plea of appeales of robberie An appeale before Iu. of Assise by the commission of Gaole deliuerie An appeale before the I. of the Kings Bench. 45 As well as Iustices of Gaole deliuerie and the Sherife and Coroners haue authoritie to receiue an appeale by Bill 17. Ed. 3. 13 in like sort Iustices of the kings bench haue power to accept an appeale by Bill for they be the soueraigne coroners of the Realme Appeale against one Bayled 46 If one be in prison for felonie in the Kings bench 21. H. 7. 33. 32. H. 6. 4. or before the Iustices of Gaole deliuerie and after let to baile yet an appeale by bill may be commēced against him for he is a prisoner notwithstanding that bailement for they which tooke him in batle be his guardians and shall be charged if he escape some doe affirme that they may imprison him and some do hold that they shall be hanged for him And vpon his bailement he shall find sureties to answer to all persons No appeale against him that is let by mainprise But an appeale is not to be pursued against him 9. Ed. 4. 2. 39. H. 6. 27. who is let at libertie by mainprise for that he is not in ward No appeale before Iustices of peace 47 Some doe affirme that an appeale may be commenced before Iustices of peace for they haue authoritie by their commission 44. E. 3 44. and by the Statute of 18. Ed. 3. 2. to heare and determine felonies But others doe hold that they must onely procéed vpon indictment found by a Iurie before them and not vpon an appeale prosecuted at the suit of the partie grieued for the words of their commission be Ad inquirendum per Sacramentum proborum legalium hominum de comitatu praedicto per quos rei veritas melius sciri poterit de omnibus omnimodis felonijs c. Et ad omnia singula felonias c. indictamēta praedicta caeteraque omnia singula premissa secundum leges statuta regni nostri Angliae prout in huiusmodi casu fieri consueuit aut debuit audiendum terminandum By which words it is to be inferred that they shall enquire and punish at the Kings suit vpon indictment and not at the parties suit by appeale such felonies as shall bee committed within their Iurisdiction 48 If one of the Kings subiects doe kill another of his subiects in a forrain Realm the wife or next heire of him that was slain as the case requireth An appeale before the Constable and Marshall may haue an appeale of the same death in England before the Constable Marshall of England St. 1. H. 4. 14 by force of the Statute of 1. H. 4. which doth ordaine That all appeales of things committed within the Realme shall be tried and determined by the lawes of the Realme and of things committed out of the realme before the Constable and Marshall of England for the time being And no appeales fromhenceforth shal be made or pursued in Parliament No appeale in Parliamēt Bracton Britton 49 It doth appeare by Bracton and Britton Where there shal be diuers appeales for one felonie and where not that one might haue had in former ages one appeale against the principall and another against the Accessories but since that law is changed viz. The appellant shall haue but one appeale Co. li. 4. 47. in the which he must comprehend as well the principals as the accessories vnlesse it be in speciall cases and that is confirmed by the Stat. of West 1. St. 3. E. 1. 14 which doth ordaine That no person shall be outlawed vpon appeale of commandement force aide or receit vntill the principall be attainted But the appellant shall not let to attach his appeale at the next countie as well against the accessorie as against the principall But the Exigent against the accessorie shall staie vntill the principall be attainted by outlawrie or otherwise 9. H. 4. 1. 50 In an appeale against two if one doe appeare One only appeale for one felonie and the other make default yet the plaintife shall count against them both and the same law which compelleth the appellant to count at one time against them both doth enforce him to sue his appeale against them both for if an appellant doe bring an appeale against one person Co. l. 4. 47 and the appellée is attainted and hanged at his suit and after he will bring an other appeale against one or two others for the same offence he shall take no benefit by his suit for he should haue ioyned thē all in his first appeale 47. E. 3. 16. And the same law is if the first appellée had béene acquited or that the appellant had bin Non suit after apparance 51 It séemeth that in some cases at this day one may haue diuers appeals for one felonie Where diuers appeales for one felonie as if one in one countie doe procure another to robbe a man in another countie In this case the partie robbed shall haue one appeale against the principall in one countie and another against the accessorie in another countie or otherwise he should be without his remedie against the accessorie by Appeale St. 2. 3. E. 6. 24. But by the Statute of Anno 2. 3. E. 6. if one in one countie doe procure another to kill a man in another countie hee to whom the appeale of murder is giuen shall commence his appeale in the countie where the partie shall die S. Br. 37. 26. Ass p. 52 Co. li. 4. 48. 52 And so it is Two appeals founded vpon one felonie if the Appellant doe commence his appeale against the principall within a yeare and a day after the felonie committed and after the said appeale commenced another will receiue the same felon In this case the appellant may pursue another appeale against the said accessorie for these two be seuerall felonies which began at seuerall times S. Br. 35. Robbery of seuerall parcels of goods 53 If a man be robbed of two seuerall parcels of goods at one time he cannot haue two seuerall appeales for them and put parcel of the goods robbed in one appeale and parcel in
another Fit Cor. 100 but he must commence one appeale for the whole or for parcel And if he doe bring his appeale but for parcell he shal loose the residue of the goods robbed and the king shall haue them for he cannot enlarge his appeale Where one shall answer to diuers appeales or indictments 54 If one man robbe seuerall men euery of the persons robbed may haue an appeale against the felon And although he be attainted at the suit of one of them yet he shal be tried at the suit of the others vpon their appeales if it be so that they haue commenced their appeales before the said attainder 4 Ed. 4. 11. 7. H. 4. 31. Fi. Cor. 379 And if he be found culpable at their seuerall suits and that they haue made fresh suite they shall haue their goods againe which were taken from them by robbery as well as he shall at whose suit he was first attainted 4 Ed. 4. 11 And those last Enquests shal be taken at the suit of the parties and not be adiudged Enquests of office But if the other who haue cause of appeale doe not commence their appeales vntill the appellée be attainted at the suit of the first appellant and that in the same countie where they ought to haue prosecuted their appeals after such attainder they shal not be receiued to commence them But yet Fi. Cor. 227 M. 10. H. 4. if after such first attainder the king will graunt to the partie attainted his pardon then he shal answer to the said appeales so commenced against him after his Attainder yea and for the Kings aduantage a man attainted of felonie shall answer to an offence committed before any pardon was graunted vnto him 1. H. 6. 5. As a man being attainted of felonie shal be put to answer to a treason before committed because in that case the King is to haue the Escheat But in an appeale of murder or rape the lawe doth differ from the before mentioned case of appeale of robberie for if in appeale of murder or rape the offendor bee attainted at the first appellants suit hee shall not be put to answer to other appeales brought after for murder or rape though they were commenced before the appellées attainder séeing the appellants are not to haue any restitution of goods or other benefit thereby but only the attainder of the appellee which is already attainted at the first appellants suit and so to be hanged therefore Answer to diuers indictments 55 As seuerall persons vpon their seuerall appeales commenced shall haue restitution of their goods stollen or robbed from them by one man so by the statute of an̄ 21. H. 8. St. 21. H. 8 11 a man shall haue restitution of his goods robbed or taken from him vpon the indictment and arraignement of the offendor and euidēce giuen against him by the partie robbed or owner of the goods or by some other by his procurement Therefore if one man doe robbe or steale goods from thrée men seuerally and he is indited of the robbing or stealing from one of them arraigned thereupon In this case though the other two would giue euidence against the offendor yet they shall not haue restitution of their goods by the intention or meaning of that stat for the felon is not attainted of any other robberie or felonie sauing of that whereof he is indited But if he be indiced of all the thrée robberies or felonies seuerally and arraigned vpon one of them and found guiltie by the euidence giuen by one of the parties robbed or c. yet hée shal be after arraigned vpon the other two inditements to the intent that hee may be also found guiltie by the euidence of the other two persons robbed or c. that they may haue their goods stollen againe according to the meaning of the foresaid statute S. Restitution 4. 56 Whereas by the common laws of this Realme He that is allowed his clergie shall answer to former offences and also by the stat pro Clero St. 25. E. 3. 5 made an 25. E. 3. no clerke arraigned of felony before a secular Iudge which was demanded by the Ordinarie of the place should be remanded to the gaole but ought presently to be arraigned of all his offences or otherwise deliuered to the Ordinary But because diuers persons did ofttimes commit and do sundrie detestable murders haynous robberies and felonies and other capitall offences for the which clergie is not allowable by the laws and statutes of this realm and after the same offences so done either did fly out of the countie or other parts of this realme into the parts beyond the seas or kéepe themselues secret in other places whereby they were not knowne for a great time and after did cōmit some other felony for the which they might haue their clergie and being arraigned of the same had their clergie to them allowed thereupon were committed to the custodie of the Ordinarie according to the law and custome of this realme the former offence wherein clergie was not grantable being then not knowne and so by that meanes could not after be impeached for the said other horrible and great offences by the law and custome of this realme to the great encouraging of offendors vsing such practises of foreknowledge and set purpose for the discharge of the same Therefore for the reformation of the premisses St. 8. El. 4. by the stat of an 8. Eliz. it was enacted That euery person which shall vpon his arraignement for any felonie bee admitted to his clergy by the lawes of this realme shall before the same admission haue committed any other offence whereupon clergie by the laws stat is not allowable and not being thereof before indicted acquited conuicted or attainted Appeale of former offences or pardoned shall may be indicted or appealed for the same and thereupon ordered and vsed in all things according to the lawes in such maner as though no such admission of clergie had beene St. 18. El. 6. 57 And after viz. an 18. Eliz. a more generall stat was made A Clerke shal answer to former offences That all and euerie person persons which shall hereafter be admitted to haue the benefit of his or their clergie shal notwithstanding his or their admission to the same bée put to answer to all other felonies wherof he or they shal be hereafter indicted or appealed and not being thereof before acquited attainted conuicted or pardoned shal in such maner and forme be arraigned tried adiudged and suffer such execution for the same as he or they should haue done if as clerk or clerks conuict S. Indict 52. they had bin deliuered to the Ordinary there had made his and their purgation Britton 58 If a man cōmence his Appeale of death before the Coroner in the county presently the Serieant of the county shal be commanded The
proces in Appeale that hee bring the bodies of the apellées to the next countie to answer the plaintife And if the said Serieant do answer at the second county that he cannot find them Proces vpon Appeal before the Coroner thē an Exigent shal be awarded against the principals But the Exigent touching the accessories shall stay vntill the principals be outlawed And so it appeareth by Britton 22. Ass p. 81 Fi. Cor. 234 Fitz. Proces 226. some other authoritie that an Exigent shal be awarded in Appeale of death cōmenced before the coroner in the coūty after the first Capias returned Fitz. Proces 226. Fitz. Cor. 184. St. 25. Ed. 3. 14. 59 But in an Appeale or Indictment of robbery or other felony Proces vpon an Appeale or Indictment of felonie there shal be two Capias awarded before the Exigent And the same is confirmed by these words of the stat de proditionibus made 25. E. 3. viz. It is agréed that after any man be indicted of feloni ebefore the Iust to heare and determine in their Sessions the Sherif◠shal be commanded to attach his body by a writ or precept called Capias And if the Sherife returne in the said precept that the body is not found another writ or precept of Capias shall incontinently be awarded returnable thrée wéekes after and in the same writ or precept it shall bée comprised that the Sherife shall cause to be seised all his chattels and safely kéepe them vntill the day of the writ or precept returned And if the Sherife returne that the body is not found and the indictée commeth not S. Forf 44. the Exigent shal be awarded and the chattels shal be forfeited as the law of the crown commaundeth But if he come and yéeld himselfe or be taken by the Sherife or other minister before the returne of the second Capias then the goods and chattels shall be saued This statute doth not make mention of the death of a man nor of robberie but of felonie generally which includeth all And yet some doe affirme that it was intended to be made onely for robberie and larcenie Fitz Proces 226. but it is prouided for those which be indicted before Iust to heare and determine and not for those against whom an Appeale is commenced before the Coroner and it was rather ordained to seise the felons goods vpon the second Capias than to giue proces Proces against indictées in another county 60 And because some persons appealed or indicted of diuers felonies in one countie or outlawed in the same countie were dwelling or receiued in another county whereby such felonious persons indicted and outlawed haue béen incouraged in their mischiefe for that they might not be attached in another countie for the redresse whereof by a stat made anno 5. E. 3. it was ordained St. 5. E. 3 11 That the Iust assigned to heare and determine such felonies shall direct their writ to all the counties of England where néed shall be to take such persons indicted 61 Because diuers persons for their singular reuenge and not of right malitiously of their subtill imagination haue caused and procured falsly to indict and appeale seuerall of the Kings subiects of diuers treasons felonies and trespasses before I. of peace and other commissioners other Iust hauing authoritie to take indictments or appeals in diuers forreine counties liberties and franchises of England wherein the said liege people neither bee nor euer were conuersant or dwelling By force of which appeales and indictments and the processes therupon made in the said counties franchises and liberties the said persons so indicted haue béen put in Exigent and after outlawed and therupon their goods and chattels lands and tenements haue bin forf and they in great perill of their liues whereas the said persons so indicted appealed or put in Exigent or outlawed had neuer knowledge of such indictmēts appeals Exigents or Outlawries For the preuention whereof it was ordained by the stat of an 8. H. 6. St. 8. H. 6. 10 That vpon euery indictment or appeale by the which any of K. liege people dwelling in other counties Appeale of indictments of persons dwelling in forrein Counties than there where the indictment or appeale shal be taken of treason felony trespas before I. of peace or any other hauing power to take such indictments or appeales or other Commissioners or Iustices in any county franchise or libertie within England before any Exigent awarded vpon any indictment or appeale to be taken in forme aforesaid immediatly after the first writ of Capias vpon euery such indictment or appeale awarded and returned another writ of Capias shal be awarded directed to the Sherife of the county whereof he which is indicted is or was supposed to be conuersant by the same indictment returnable before the same Iustices or Commissioners before whom he is indicted or appealed at a certaine day containing the space of iij. moneths from the date of the said last writ by the which writ of second Capias it shal be contained commanded to the same Sherife to take the body of him which is so indicted or appealed if he may bée found within his bailiwike if he cannot be found within his bailiwike that the Sherife shall make proclamation in two counties before the returne of the same writ that he which is so indicted or appealed shal appeare before the same Iust or Commissioners in the countie liberty or franchise where he is so indicted or appealed at the day contained in the said last writ of Capias to answer to the K. or to the party of the felony treason or trespas whereof he is indicted or appealed After which second writ of Capias so serued and returned if hée which is so indicted or appealed doth not come at the day of the said writ of Capias returned the Exigent shal be awarded against such indictees or appellées and euery of them And if any Exigent be awarded vpon any such indictment or appeale against the foresaid forme or any outlawrie therupon pronounced the sayd Exigent and the Outlawrie thereupon pronounced and euery of them shall bee void And the partie against whom such Exigent is awarded or outlawrie pronounced against the foresaid forme shall not bee endamaged in his life lands goods c. And euery one which is indicted or appealed in forme aforesaid after he is acquited by verdict in forme of law may haue an action vpon the case against euery procurer of such indictments or appeales in which actiō there shal be like proces as in an action of trespas vi armis And if the said procurers be attainted the plaintife shall recouer treble damages But this stat extendeth not to indictments or appeals taken in the countie of Chester Nor to any indictment or appeale of felonie or treason taken of any of the K. liege people which at the time of the same felonie or treason
supposed is and was conuersant within the countie whereof the indictment or appeale maketh mention but the like proces shal be made against such indicted or appealed person as hath béene vsed 62 And because after the making of the sayd Statute of Anno 8. H. 6. some intending to defraud the sayd Statute did sue to remooue such appeales and indictments out of the hands of the Iustices or Commissioners aforesayd into the Kings bench and elsewhere by Certiorari or otherwise vnknowne to the partie so indicted and therupon sued the proces vsed at the common law before the making of the said Statute in the Kings Bench and elsewhere after the remoouing therof to the great impouerishment of diuers the kings subiects Therefore by the Statute made Anno 10. H. 6. St. 10. H. 6. 6 it was enacted Proces vpon an indictment or appeale remoued into the K. bench That if any such indictments taken before any Iustices of peace or any other hauing power to take such indictments or appeales or other Iustices or Commissioners in any county franchise or libertie of England shal be remoued into the Kings Bench or elsewhere by Certiorari or otherwise then after such remoouing before any Exigent awarded vpoÌ„ any such indictment or appeal in form aforesaid taken immediatly after the first writ of Capias vpon euery such indictment or appeale awarded and returned another writ of Capias shall bee awarded directed to the Sherife of the countie wherof he that is indicted or appealed is or was supposed to be conuersant by the same indictment or appeale returnable in the K. Bench at a certaine day contayning the space of thrée moneths from the date of the said last writ of Capias according to the maner and forme that the I. of peace and others ought to haue done before such remouing And if any Exigent be awarded vpon any such indictment or appeale after such remouing against the forme aforesaid or any outlawrie thereupon pronounced as wel the same Exigent as the outlawrie and euery of them shal be void In the Appeale he must be supposed to be of a forrein County 63 The foresaid stat of 8. H. 6. doth not take place St. 8. H. 5. 10. but where by the Appeal or by the Indictment it is precisely supposed that the defendant was dwelling in a forrein county for if he be supposed to be dwelling there by an Alià s dictê° it is out of the compasse of the stat 1. E. 4. 1. As in an appeal or indictment in the county of Middlesex against A.B. in comitatu tuo yeoman alias dictum A.B. de C. in comitatu Sussex yeoman Because that which is supposed by the Alià s dictê° is not trauersable nor materiall And likewise it is in an appeale or indictment against I. of S. in comitatu H. nuper de L. in comitatu K. nuper de R. in comÌ„ T. An appellée dwelling in no place certaine 64 If a man be appealed to be dwelling in no place certaine the day of the Appeale commenced but in this maner Fitz. Proces 192. viz. nuper de S. in comitatÌ„ L. and nuper de B. in comitÌ„ T. then proces shal be awarded into all the counties whereof he is so supposed to be of late dwelling Proces into a County Palantine 65 The foresaid stat of 8. H. 6. hath ordained That after the first Capias St. 8. H. 6. 10 another Capias shal be awarded to the Sherife of the county whereof he which is so indicted is or was supposed to be dwelling by the same indictment And therefore if an appeale or indictment be exhibited against one in the countie of M. naming him of D. in the county of Chester or of some other place which is a countie Palantine In this case no proces can be awarded vpon this Stat. which may be directed to the Sherife according to the words of the Statute But proces shal be awarded vpon this statute to the prince or his lieutenant 19. H. 6. 2 31. H. 6. 11. for it is in like mischiefe and the statute is generall in all the Realme which doth bind as well those which be of a Countie Palantine as others But if they of the Countie Palantine will not serue and returne the writ directed to them vpon this statute then without further delay the Exigent shall be awarded otherwise the party should be infinitly delaied Proces against principal accessory 66 The foresaid Proces specified in the before rehearsed stat of 8. H. 6. shal extend as well to accessories as to principals sauing that the Exigent as to the accessories shall be staied vntill the principals be outlawed And that by the Statute of West 1. the words whereof be these St. 3. E. 1. 14 Because men haue vsed in some counties to outlaw such persons as be appealed of commandement force aide or escape within the same terme that they do outlaw him which is appealed of the fact it is ordained that none shal be outlawed for an appeale of commandement force ayd or receit vntill he that is appealed of the déed be attainted so that one law shal be thereof through the whole Realme But the appellant shall not let to attach his appeale at the next countie against them as well as against the appellées of the déed But the Exigent against the Accessorie shal stay vntill the appellée of the déed be attainted by outlawrie or otherwise And Britton Britton doth affirme That as soone as the principals be outlawed the Exigent shal be awarded against the accessories St. 3. E. 1. 14 67 The before rehearsed statute of West 1. séemeth onely to extend to Appeales commenced by bill The stat of W. 1. exteÌ„deth onely to Appeals commenced by bil for in an Appeale commenced by writ it appeareth not vntill the declaration made thereupon that there bée any accessories in the Appeale but for any thing contained in the writ all doe appeare to be principals 43. Ed. 3. 17. and for that cause the Exigent is awarded against them all at one time And therefore the plaintife must be aduised how he doth pray the Exigent and against whom for if he do pray the Exigent against them all he is therby concluded after to count against any of them as accessories for the law intendeth that he must take knowledge which were accessories and which not And therefore in that case he should haue staid the demaunding of the Exigent against them vntill the principals had béene attainted And that is the difference betwéene the principals and the accessories as touching the time of the awarding of the Exigent 68 If an Appeale be brought against diuers and one doth appeare plead In Appeale one doth appeare and another makes default yet proces shall be continued against the residue But if hee which appeareth doth plead in abatement of the Appeale or matter in barre which proueth that the Appeale
pacem Dei Domini Regis praedictus A. offert hoc dirationare prout curia Domini Regis hic considerauerit And so it appeareth that the auncient Law in diuers points touching Appeales is chaunged by the stâ—tute of Gloucester Ann. 6. Ed. 1. which hath ordained St. 6. Ed. 1. 9. That if the appellant in appeale doe declare the déed the yeare the day the houre the time of the king and the Towne where the deed was done and with what weapon he was slaine the appeale shal be of force The yeare day houre time of the king and the towne materiall This statute maketh the yeare the day the houre the time of the king and the towne things materiall Bracton and that vpon good cause For if the appellée can prooue by certain demonstration and the testimonie of credible persons that he was the same day in another place so that by no meanes it can be presumed that he was present the same day at the committing of that fact in respect of the great distance of the place then the appellants suit shall faile And the same reason is of the houre if for he that is supposed to kill the man was twenty myles from that place where the deed was done the same houre wherein that murther was committed hee cannot bee guiltie of that fact and yet it may be he was there sometimes the same day but not that houre Where the houre may be left out But a man is not of necessitie compellable at this day by the common law to put into his declaration the houre Stamf. which declaration by the common law any man may yet make notwithstanding the foresaid stat of Gloucester because the same statute doth not forbid it for it is in the affirmatiue 78 The plaintife is to make speciall care The place where the fact was done that he put into his declaration the place where the fact was done for the said statute of Gloucester doth specially commaund it by expresse words And therefore if an appeale be brought against diuers 21. E. 4 25. naming them of seuerall Towns or Villages and after in his Count he will say at the place aforesaid this is not good for no man can tell to which of the places aforesaid to referre it and séeing there be diuers of them in number he ought to expresse the place by name or otherwise it is not good If a man be stricken mortally in one place whereof he dieth shortly after in another place Co. lib. 4. 42 the appellant must count in his appeale that the def did commit the murther in the place where the party died and not in the county towne or place where the stroke was giuen 44. E. 3. 38 79 There be diuers other formes of declarations in appeales of death as in appeale of death against thrée as principall Count in appeale of death against three as principals and the appellant doth count that such a day and such an houre one of them did strike her husband of whose death she doth bring the appeale in the necke whereof he died and the same houre another did strike him to the heart so that if he had not died of the first blow he would haue died of the second and that the third did strike him in another part of his body and so count seuerally against them that euery of them gaue him a mortall wound and shew the manner of the wound according to the fact for the statute of Gloucester doth ordaine That he shall count of the fact The fact must be declared and according to the difference of the fact the count in an appeale shall differ for of necessity the fact must be declared as it was done or as the law doth expound it to be done And therefore 21. E. 4. 71. 4. H. 7. 18 if two be present at the death of a man and one doth not strike him but commandeth the other to strike him in regard whereof he doth kill him in this case in an appeale against them the appellant shall count that either of them did strike him mortally and in like sort in an appeale of Rape against two where one was present 11. H. 4. 13 Fit cor 228 did abbet the other to rauish the woman in that case the count shal be that they both did rauish her for in that one there was the rauishment of them both Count in appeale of Robbery 80 In an appeale of death as cousin and heire 45. E. 3. 25 27. Ass p. 25 the appellant must shew in his count how he is cousin and in appeale of Robbery he must expresse the things robbed as whether they were his owne goods or another mans Bracton and if it were in money he must shew how much and what kind of money if it were bullion the value if it were coyned the quality and the price if it were a garment the colour and the price if it were Cloth the colour price and number of elles if it were Cattell the kind the colour and price and in an appeale of Rape he must count of the tearing of garments and sheading of bloud Where in appeale of Rape the stat must be rehearsed in the count 81 There be two appeales of Rape St. 13. E. 1. 34 St. 6. R. 2 6 one vpon the stat of West 2. which maketh it felony to rauish a maried wife maid or other woman and another vpon the stat of 6. R. 2. which giueth the forfeiture where the woman rauished doth consent and assigneth who shall prosecute the suit against the rauishers In an appeale brought vpon the stat of Westm 2. the appellant néed not rehearse the statute But otherwise it is in an appeale brought vpon the stat of 6. R. 2. for there he must rehearse the statute in his count and if in appeale of Rape brought vpon the said stat of 6. R. 2. the plaintife doe count 11. H. 4. 13 that the defendant did rauish his wife contrary to the forme of the said statute hée shall not néed to alledge that his wife did consent to the rauisher 14. El. Dyer 312. for that is implied in those words contra formam statuti which words be in the declaration and although there be not in the declaration these words viz. carnaliter cognouit yet if there be these words viz. felonice rapuit they doe imply the other words for it can be no felony if there be not carnall knowledge and so it is to be noted that in felony a count may be by implication S. Felonies by Statute 2. 82 The defence which the appellée Defence in appeale is to make in an appeale is viz. 44. E. 3. 38. That he doth defend all maner of Appeals Awaights Assaults Pretences whatsoeuer is against the peace of the King his Crowne and Dignitie and to say that he is not guilty Bracton Bracton
againe at his deliuerance notwithstanding their iudgemeÌ„t before if so be that the iudgement be not entered And this is by the kings prerogatiue who is partie to the suit The differences betwéen Appeale and Indictment 37 And séeing I haue treated first of Appeales now of Indictments 22. As p. 94 it is to be considered what differences there be betwéene them In an Appeal of the death of a man the name of him which is dead must be contained or otherwise it is not good And therfore there lyeth no Appeale of the death of an infant in his mothers womb No name for that infant had neither name nor sirname and moreouer that maner of killing is no felony But if one be indicted of the death of a man vnknowne it is a good indictment M. 2. E. 3. 26 9. H. 6. 45. 1. Ass p. 7. for he that was slaine may be so mangled in the face by the murderer Killing of a maÌ„ vnknown or some other or by some other means that he cannot be knowne And though in that case no man can be of kin to him who is vtterly vnknowne by which meane no Appeale can be maintained by any yet séeing offences must not remaine vnpunished the offendor in this case shall be indicted and the enquest which shall passe vpon his arraignment 2. Ed. 3. 26. 11. Eliz. â—â— Dyer 285. shall deliuer to the court a name of him that was slain to the intent that if the party arraigned or any other shall vouch that record hee shall not depart from thence without acertaine name In an indictment of treason or felony the party indicted shall not plead misnaming Misnaming of his sirname but he must answer to the indictment 1. H. 5. 5. 11. H. 4. 40 11. H. 7. 5. Fi. Cor. 113 whether he haue one name or other And yet in an Appeale it is otherwise But in an Appeale also in an Indictment the prisoner may plead misnaming of his name of baptisme and it being proued the indictment shal be quashed In an indictment the partie indicted may become an approuer Approuer and so cannot an appellée in an appeale 22. Ed. 4. 19. In an appeale the defendant may haue his trial by battel Triall by battell if he wil but so he cannot haue which is indicted A felon may be indicted in the county where he did steal the goods or in any other county whither he carried them 4. H. 7. 5. And in like sort an appeale may be pursued against a felon in the county where he did first steal the goods or in any other county whither he carried them Fi. Cor. 232 41. Ass p. 9. Co. li. 4. 45. 38 It is a good plea in an appeale or indictment of felony to say Pleading another time acquit of the same felonie that he was at another time arraigned of the same felony before such Iust acquited and to vouch the record for he shal not be compelled to haue the record in hand because his plea is not dilatory but in bar and that plea shal be a good bar if it bée a lawfull acquitall for that by the common law a man shall not put his life in ieopardie of triall twice for one and the same felony sauing in certaine speciall cases But it ought to be of one offence or else his plea is to no purpose And therfore if two men be indicted of felony as principals Another offence and after by another indictment it is found that one of them committed the felony and the other did but feloniously receiue him after the felony committed vpon the first indictment they be both arraigned acquited and after hée which was indicted as accessorie 8. H. 5. 6. 27. Ass p. 10 Bro. Cor. 185. 2. E. 3. 26. Fitz. Cor. 424. is arraigned and pleadeth that he was at another time acquited of the same felony this plea wil not discharge him because it is not of one offence but of diuers for it was done at seueral times But if he had bin indicted as accessory before the offence committed this acquitall of him as principall would haue discharged him of his offence also for they be in maner one offence although they be done at seuerall dayes For when a felony is coÌ„mitted by force of commandement the commander in that case is party to the principal fact so is not the other which is accessory after the felony committed Bracton Bracton sayth that force and commandement be as the foundation of the principall fact and so annexed and conioyned vnto it that they cannot be seuered from it because a wound a déed and commandement do procure one onely fact and it may bée there should haue béen no wound except there had béen force neither wound nor force vnlesse commandement had gone before and bidden it to haue béene done But force and commandement which in the time of Bracton were but accidents to the fact and made the offendors therin but accessories be now the principal fact if the giuer of that commandement be present when the felony is done S. Appeales 94. 26. As p. 15 11. H. 4. 41. Fi. Cor. 336 39 If a man be indicted arraigned of the death of I. Stile Indictment of the death of a man knowne by two sirnames which I. Stile was also knowne by the name of I. Noke as well as by the name of I. Stile in this case the def may plead that he was at another time indicted acquited of the death of I. Noke auerre that the said I. Noke Iohn Stile were one person not diuers and demand iudgement if he shal be put to make answer to that indictment in which case notwithstanding this variance of names he shal be discharged because he was indicted and acquited of the death of the selfe same man of whose death he is now againe indicted and arraigned Indicted of the same mans death 40 If a man be killed two yeares past 3. Ass p. 15 22. Ass p. 55 Fi. Cor. 336 and one is indicted and arraigned of his death and acquited and after he that was acquited is againe of new indicted and arraigned of the same mans death supposing that he killed him this present yeare yet notwithstanding this variance the party indicted shal shew the truth of the case and plead his first acquitall for his discharge and bee discharged And the reason is because one man cannot bee twice killed for the Court in this case doth vse to charge the enquest with the time of the death of him who is supposed to be slaine and also whether there were any other which was killed as the last indictment doth suppose or not Indictment in two counties of one offence 41 If a man be indicted in one county of the death of another and thereupon arraigned after he is indicted in another county of the same parties death
he may plead the same acquitall in bar for that no mans life shall be twice put in ieopardie of triall for one offence and one man can be but once slaine But it is otherwise in an indictment of robberie for a man may be robbed by one person at seuerall times and in seueral counties and so the acquitall of one of the same robberies will not serue him for the other And therfore if one be indicted of robbery in one county the defendant cannot plead 4. H. 7. 5. that he was indicted of the same robberie in another county and acquited for no man can be indicted or arraigned for a robbery but in the coūty where the same robbery was committed and though the def doth surmise that it is but one and the same felony yet that cannot be tried for the county where the first indictment was taken and the county where the last was taken cannot ioyne to make triall thereof But some do affirme that it is a good plea in an Appeale of robbery for by the Appeale the plaintif is to recouer his goods by the common law and so he is not vpon an indictment Indictment of rape A man was indicted in the K. bench of a rape and robbery committed in the county of C. and he pleaded 41. As p. 9. that he was before indicted of the same rape before the Iust of Assise in the county of C. and arraigned and acquited of the same fact And for that it was of the same fact he was discharged Arraigned vpon an insufficient indictment or appeale 42 It is not a sufficient plea in bar in an Appeale or Indictment of felony to plead that he was at another time acquited if there were not sufficient matter of felony in that apeale or indictment whereof he was acquited Co. li. 4. 45. Fitz. Cor. 414. for if there were not sufficient matter of felony in the first appeale or indictment and the same partie is againe indicted of new by an indictment which doth comprehend sufficient matter of felony he shal be againe arraigned because in that case he neuer put his life in ieopardy For when an offendor is discharged vpon an insufficient indictment the law hath not had his end neither was the life of the party in the iudgement of law at any time in ieopardie And the law will not suffer great offences to go vnpunished Acquit vpon an erronious appeale 43 If one be acquited vpon an erronious appeale which acquitall is reuersed by errour he shall now be arraigned at the K. suit vpon an indictment 9. H. 5. 2. for that by the reuersall he is become in that state as if he had not béene acquited But vntill that reuersal be made it shal be a good plea to plead Fitz. Cor. 444. another time acquit And it séemeth that the same is when the errour is in Proces that is not materiall which the defendant doth appeare and answer to the originall writ But the def shal not any more make answer to the appellant although the first acquitall be reuersed for so the appellant might delude the court infinitly and the defendant should neuer be deliuered 21. H. 6. 20 44 If one do bring an Appeale which hath no cause to maintaine the same Acquit vpon an Appeale brought by one that hath no right As if one which is not the lawfull wife or the next heire of him that was slain do bring an Appeale and the defendant doth take no aduantage thereof but pleadeth not guiltie and is acquit yet this acquitall will not serue to barre the lawfull wife or next heire of the dead when they shal bring their Appeale neither in this case the king shal be barred to arraigne him vpon a indictment or vpon a new appeale when the partie plaintife is nonsuit therein 16. Ed. 4. 11. 8. H. 5. 6. 45 If one bée arraigned vpon an Indictment at the Kings suit One arraigned vpon an indictment before the parties appeale be determined and acquited where by the order of law the King ought to haue tarried vntill the Appeale which was depending had béen determined yet this is no errour but the foresayd plea viz. another time acquit of the same felonie shall serue him that doth plead it Fitz. Cor. 375. 46 If a man be indicted of felony and arraigned at the Kings suit Acquit by battell in an Appeale it is no plea for him to say that at another time he was acquited of the same felony in an Appeale if so be that the same acquitall were not by enquest but by battell And the reason is because tryall by battell lyeth not against the King and therefore it is not méet that he should be bound by that tryall whereunto hée neither was Bracton nor could be partie And yet Bracton sayth that if the appellée in an Appeale doth make his choyce to defend himselfe by his bodie and all things be readie which doe ioyne the Appeale battell shal be presently waged and if in that case he that is appealed by diuers of one fact and of one wound doe defend himselfe against one of them hée shall goe acquit against all the residue of the appellants And so it is at the Kings suit for by this meanes he doth purge his innocencie against them all as much as i◠hée had put himselfe vpon the countrey and the countrey had cléerely acquited him Ideo quaere 47 Because by the common law A murderer indicted and arraigned at the K. suit within a yeare and a day after any murder or homicide had beene done the felonie should not haue béene determined at the kings suit for sauing of the parties Appeale wherein the partie was oft-times slow and also agréed with and by the end of the yeare all was forgotten And also for that hée which wil sue an Appeale must sue it in proper person which suit is long and costly and maketh the appellant diuers times weary thereof which were occasions of murder and manslaughter for the reformation whereof by a statute made Anno 3. H. 7. St. 3. H. 7. 1. it was enacted That if any man be slaine or murdered and the slaiers murderers abettors maintainers and comforters of the same bée indicted therefore the same slayers and murderers and all other accessories of the same shal be arraigned determined of the same felony murder at any time at the K. suit within the yeare after the same felonie murder done and not tary the yere day for any appeal to be taken for the same felony or murder And if it happē any person so named as principall or accessorie to be acquited of such murder at the Kings suit within the yeare and day then the Iustices before whom he is acquited shall not suffer him to go at large but either shall remit him againe to prison or else let him to baile after their discretion till the yeare and day
iudgement shall be giuen that the approuer shall be hanged And in like sort it is Fi. Cor. 456 if an approuer doe appeale seuerall persons in seuerall counties and processes be awarded against them vntill some of them be attainted and some of them depend in processe not attainted and the Iustices be informed by credible persons of the same countie wherein they were appealed that there be no such men to their knowledge in rerum natura the approuer shall be hanged An approuer did appeale two men in London and proces was awarded against them and it was returned that there were no such men dwelling in the city of London and the approuer agréeing to the same returne Fi. Cor. 460 saide that they were dwelling within the city of Lincolne and he was not thereunto receiued but was adiudged to be hanged So that if there be any falshood or lying in the approuer be it before his approuement or after and that the court do perceiue it they will take his appealing from him and adiudge him to be hanged And if they do otherwise Approuement after pleading not guiltie it is more of fauour than of right 12. Ed. 4. 10 for of fauour the court may allow the prisoner to waiue his plea of Not guiltie and to confesse the felonie and to become an approuer 21. H. 6. 35 And if an approuer doe appeale one who by his owne confession is out of the Realme he shall be hanged for the appellée cannot be attainted at his sute for though he should be outlawed yet he may reuerse it at his returne for that cause 6 When a prisoner vpon his arraignement doth confesse the felonie An Approuers othe and praieth a Coroner which is assigned vnto him by the court he must be sworn in the same court before his departing to appeale of all felonies and treasons which he doth knowe and the court shall appoint him a number of daies wherein to make his appeale in the which daies and in euery of them hée ought to appeale for if thrée dayes be appointed and in two of them he doth appeale 12. Ed. 4. 10. 26. As p. 19. Fit Cor. 439 and the third day he will affirme to the Coroner that he can say no more and the Coroner doth report the same to the court iudgement shall be giuen that he shall be hanged 7 An approuer shall haue wages of the King euery day that is assigned him by the court to approue in viz. a penny a day And some do affirme An Approuers wages that he shall haue no wages Fi. Cor. 439 vntill he hath made his proofe by vanquishing some appellée in battell or by conuicting him by verdict and then he shall haue wages of the King for euery day 8 When a Coroner is assigned to an approuer An Approuer set at liberty the approuer must he let out of prison to the intent that hee may approue or appeale of his owne frée will being at liberty without any dures for if it be by dures when he commeth againe before the Iustices hée may rehearse his appeale and disauow it for that cause which shal be tried by the examination of the Coroner vpon his othe Fi. Cor. 118 169. 255. And if the Coroner do say that the same appeale was not by dures the appeale shall stand and the approuer shall be hanged And when the approuer hath made his appeale before the Coroner he shall come againe before the Iustices and rehearse his appeale before them for they will not reade his appeale vnto him and if hée doe faile in the rehearsall of his appeale 26. As p. 19 in anie word otherwise than the Coroner hath recorded it he shall be hanged as if in his rehearsall he doe say that there was a blacke horse stollen where it it was recorded by the Coroner a redde Horse An Approuers appeale must be certaine For the Approuer must declare the thing certainely with all the circumstaunces thereof without any varying or alteration Bracton and he must know the person whom he hath appealed when hée is brought into question for if he know him not it is to be presumed that they were neuer companions Processe against the appellees 9 After an Approuer hath made his appeale before the Coroner if the appellees be dwelling in the Countie where the appeale is made the Coroner hath authoritie to award processe against them vntill the Exigent and to direct his processe to the Shirife to serue But so he cannot doe 29. Ed. 3. 42 if the appellées be dwelling in another countie for then he must not award processe against them but referre it to the iustices before whom he is to record the same appeale And they may award processe as the Iustices of the Kings bench and Iustices in Eire may do who may award processe by the common law and Iustices of Gaole Deliuerie by the statute De Appellatis made Anno 28. Ed. 1. which hath ordained St. 28. Ed. 1. That whosoeuer shal be appealed by any Approuers remaining in the Gaoles which the Iustices of Gaole deliuerie shall deliuer in what places soeuer of the Realme the persons appealed shall remaine immediatly the Shirife of that countie where such persons appealed be conuersant or may be found shall be commaunded by the Kings Writs vnder the testimonie of the same Iustices that he shall apprehend those persons appealed and conuey them to the Gaole where the approuers by whose appeale they be apprehended be imprisoned And the Shirife or Gaoler of that prison shall receiue them and there they shall answer before the same Iustices And if they put themselues vpon the country the Iustices shall send by a iudiciall Writ to the Shirife of the Countie where the felonie was committed that hée shall returne an Enquest before them at the place where the approuers do remaine at a certaine day Pleas for the Appellee against the Approuer 10 It is a good exception for the appellée in his owne defence to alleage against the approuer that the approuer is a person attainted of treason 11. As p. 27. Fi. Cor. 387 443 21. Ed. 3. 17 or felonie and to shew how viz. either by verdict outlawrie or abiuration or in any other manner for such a person is out of the Lawe and so disabled to appeale or accuse others And the same lawe is if the approuer be a clerke conuict for hee commeth now too late to confesse a felonie 17. Ed. 3. 13. when hée hath pleaded not guilty thereunto before which was found false at his owne sute and therefore it cannot be intended that the thing hée saith now is true And although hée had his clergie vpon confession of the felonie An Approuer conuict of felonie yet hée shall not now become an approuer for that he saide nothing at that time when hee ought to haue approued and therefore the Lawe cannot intend that hée hath
any thing to say now that is true séeing he would not speake it at that time when hée might haue béene heard But in the foresaid cases if the approuer can shew any sufficient matter which doth restore him to the lawe 21. Ed. 3. 17 as the Kings pardon and such like then the appellée shall answer to the approuer S. Appeales 92. An Appellée cannot appeale others 11 If he which is appealed by an approuer will confesse the appeale and pray that he may become an approuer and appeale others hée shall not bée receiued thereunto for seuerall causes one is for that he is appealed of felonie and not indicted of felonie and in an appeale there lieth no approuement another cause is for that if his approuement should be of the same felonie he should thereby falsifie the appeale of the first approuer in that he did not at the first discouer all his companions being sworne thereunto And a third cause is Fi. Cor. 113 for then by that meanes approuements would be infinite and also the appellée is in a sort out of the lawe for that the approuer hath deraigned an appeale against him 21. Ed 3. 18. Fi. Cor. 231 12 It is a good exception for the appellée to obiect against the approuer Approuer not in prison for felony or at libertie that the approuer is not in prison for any felonie or treason but for debt or trespasse or some other offence or to say that the approuer is not in prison but at large for he cannot be an approuer vnlesse he be first indicted of felonie and doth confesse it before a Iudge and then become an approuer Bracton 13 It is a good plea as some doe affirme for him that is appealed The appelleé an honest and credible man to say that he is a lawfull man and in the franke pledge and in the Assise of our soueraigne Lord the King and that hée hath a Lord which will be his pledge And if that be trauersed and found for the appellée he shall be discharged thereby Sed quaere Fi. Cor. 322 14 In an appeale by an approuer the appellée may pleade General plees in Barre of the appeale that the same approuer is a priest not of perfect memorie deafe dumbe a lazar a naturall foole a woman a man aboue thréescore and tenne yéeres of age or within age or that he is mayhemed by some other and not by the appellée for that in these cases the approuer cannot deraigne or wage battell with him S. Appeales 93. 15 In diuers cases if the appellant doe surcease to prosecute his appeale Where the King may pursue an appeale begunne the king may pursue it for the appellant may by seuerall meanes leaue off to prosecute his appeale 3. H. 6. 50. as by Non-suite Release Retraxit or a woman by taking a husband during the suite of appeale for in all these Cases the appeale doth cease by the act of the partie therefore in which case soeuer that Cesser is after declaration in the appeale the Defendant shall not goe at libertie but shall be arraigned at the Kings suite vpon the same declaration for that it doth appeare there is a felony committed and the same is not yet tried And the same Lawe is if the appeale doe cease by the act of God as if the appellant doe die 21. Ed. 3. 18 Fit Cor. 369 Or if it cease by the act of the Lawe as if the appellant after his appeale made be hanged Or if the appellant doe take the priuiledge of his Cleargie for an appeale by an approuer is a great presumption against the Defendant that he is guilty of the offence whereof he is appealed and that is for the great punishment which the appellant is to suffer if he at any time doe faile of his appeale viz. death And an appeale doth worke a greater presumption against the Defendant than an Indictment doth 4. Ed. 4. 10 for that it is vsed if a man be appealed and indicted of one offence and the Plaintife in the appeale after declaration is Non-suite the Defendant shall be arraigned at the Kings sute vpon the declaration in the appeale and not vpon the Indictment But this presumption riseth where the appellant hath appeared to his suite 8. Ed. 4 25. and declared for vntill that time it carieth not with it any presumption Because any man may sue a Writte of appeale out of the Chauncerie in a strangers name and finde pledges to prosecute it and cause the Writ to be deliuered to the Shirife of Record that stranger not knowing thereof in which Case it shall not be saide that strangers suite vntill he hath appeared in proper person thereunto and declared 7. H. 7. 5. Fi. Cor. 384 for vntill that time Non-suite in the appeale is not peremptorie to the stranger Neither shall the Defendant be arraigned at the Kings suite by this Non-suite any more than if hée had not béene Non-suite But in that Case if a stranger doe bring a new appeale against the Defendant the Defendant shall aunswere him as hée should haue done if no such Non-suite had béene But the Lawe is otherwise in an appeale commenced by Bill for that suite of necessitie must be made by the party himselfe in his owne proper person 22. As p. 97 and his apparance must be recorded by the Shirife and Coroners and the yéere day and place expressed where and when the felonie was committed and who were principalles in the same felonie and who were accessories And so in an appeale by Writ the Plaintifes Non-suite before declaration doth giue the King no aduantage against the Defendant but in an appeale commenced by Bill before the Shirife and Coroners or in an appeale by an approuer it is otherwise for in such an appeale all the certaintie of the felonie is declared and comprised 2 3. P. M. Dy 121. In an appeale of murder against thrée if one of them pleade Not guiltie ready to defend himselfe by his body and so wageth battaile vpon which plea the Plaintife demurreth in lawe which demurrer is adiudged against him in this Case the same appellée shall be arraigned at the Kings suite for that the felonie is not yet tried nor he acquit thereof And if one of the other appellées doe pleade Not guiltie and that the Plaintife doth demurre thereupon and it is adiudged a good plea and the same appellée is acquit against the appellant yet he shall be arraigned at the Kings suite of the same murder S. Appeales 96. The Appellants release to the Appellée 16 If the Defendant in an appeale do pleade a Release inrolled Fit Cor. 12 and of record made vnto him by the appellant before the appeale commenced he shall be presently deliuered But if it be made after the appeale commenced the the Court will intend that it is of purpose to defraud the King and therefore in
learned in the law to plead for him or to say any thing in his behalfe in the same plea vnlesse it be in an appeale which is the suit of the partie for when the offendor is put to answer to an inditement of treason or felonie he must answer it in proper person and not by atturney or councel learned For this plea of Not guiltie doth tend to the fact that which the party himselfe doth best know and therefore hee can best make answer vnto it And if his councell learned should plead his plea for him and defend him it may be that they would be so couert in their spéeches and so shadow the matter with words and so attenuate the proofs and euidence that it would be hard or long to haue the truth appeare Also if the partie himselfe defend it peraduenture his conscience will pricke him to vtter the truth or his countenance or gesture wil shew some tokens thereof 9. Ed. 4. 2. or by his simple spéeches somewhat may be drawne from him to bolt out the veritie of the cause which would not be wonne of men learned in the law who indeauour to speake prouidently and artificially which be the causes that the offendor shall answer in his owne person and not by councell learned And yet if the plea of the partie indited be such that it doth excéed his learning and knowledge to answer 1. H. 7. 15 12. El. Dyer 296. 7. H. 4. 36. and plead vnto Where councell shal be allowed Informing the Court of a default then hee shall haue learned councel assigned vnto him though it be against the King And one that is in the Court at the time of the inditement or arraignment of a prisoner may as Amicus Curiae informe the Court that there is a defect in the inditement to the benefit of the prisoner ⧠Triall by Battell THere is an auncient triall of the plea of Not guiltie by the common law much vsed in former ages which is triall by combate viz. by Battell which triall the defendant in an Appeale of felonie may choose and combate with the Appellant for the triall if he be guiltie or not of the felonie whereof the appellant hath commenced his appeale against him And if the Appellée hath so good successe in that battell that he doth therein vanquish the appellant he shall barre him of his appeale for euer And though this triall by battell is not so much in vse as it was in the raignes of king Edward the 3. king Richard the 2. and king Henry the 4. yet is it at this day lawfull Triall by battel or by the countrey and not so much disused but it may be put in practise in an appeale if the defendant will and that there be no lawfull counter-plea thereof Or else the defendant in an appeale may at his choyce plead not guiltie and referre himselfe to be tried by the countrie This triall in an appeale by battell shall be betwéene the appellant and the appellée themselues in their own persons and not by Champions as it is in a writ of right And this triall by battell is an auncient law of this realme 37. H. 6. 3 it is also put in practise and allowed by the ciuill law which it is thought the Romans learned and embraced euer since that renowned combate that was fought in the time of Tullus Hostilius third king of the Romans and of Metius Suffetius dictator of the Albans Tit. Liu. l. 1 betwéene the thrée brethren Horatij Romans and the thrée brethren Curiatij Albans by the consent and in the presence of both the Captaines and Armies for the perpetuall gouernment of both the kingdomes wherein M. Horatius vanquished and slew in the field the thrée Curiatij who presently before had killed his other two brethren and by that meanes obtained to the Romans the perpetuall gouernment of the citie and countrey of the Albans and deliuered his owne nation from continuall seruitude The forme of trial by battel 2 The order and forme of triall by Battell is this when the defendant in an appeale hath pleaded not guiltie ready to defend the same by his body hee must cast his gauntlet into the court and if the Pl wil reioyne to the Battel hée must take vp the Gauntlet Fit Cor. 385 But if the Plaintife will counterplead the Battell then hée must let the Gauntlet lie and then the Defendant may demurre in law thereupon if he do let his gauntlet lie If it be in an appeale of death and that the appellant and the appellée doe ioyne in wager of Battell the Appellant shall rehearse his appeale word by word as he did at the first and the appellée shall likewise make his defence as he did at the first and then the defendant shall wage the battel in this manner 17. E. 3. 2. 17. Ass p. 1 9. H. 4. 4 viz. Thomas the appellée shall with his left hand take I. the appellant by the right hand and lay his owne right hand vpon a booke and say thus Heare you this you man which doe call your selfe Iohn by your name of Baptisme that I man which doe call my selfe Thomas by name of Baptisme such a day and such an year did not kill William your father by name as you doe surmise neither am I guiltie of this felonie so helpe me God and shall kisse the booke and this I will defend against you by my bodie as this Court will award And after I. the Appellant shall with his left hand take T. the appellée by the right hand and lay his owne right hand vpon the Booke and say in this manner Heare you this you man which by name of Baptisme doe call your selfe Thomas that you furiously such a day and in such a yeare did kill William by name my Father so helpe me God and shall kisse the Booke and this I will iustifie against you by my bodie as this Court will award And the Court shall appoint them a day to make their combate and the appellée shall put in pledges to the Court to performe the battell and to defend himselfe and the plaintife shall put in pledges to deraigne the battell at the day assigned And the Appellant shall goe at libertie and the appellée shall bée kept in prison at ease and haue sufficient meat and drinke And the Marshall shall apparell the appellant and the appellée both alike at their owne costes the night before the combate shall be fought to the ende that they may bee in the field the next morning ready to performe the combate by the sunne rising And the appellées head shall be polled but not the appellants and the Marshall shall bring them attired into the field ready to performe the Battell Which combate shall be tried before the Iustices 19. H. 6. 15 Br. Battel 16 Bracton de cor ca. 21 who shall cause Proclamation to bée made when they be set and the Appellant and the
appealed in that hee did breake the prison and flie or would haue fled for the felonie and that hée did not relie vpon and trust to his innocencie and be iustified and tried by the law And the Appellée may reply to that counter-plea and trauerse the arrest for felonie or the breaking of the prison if he will or he may plead the Kings pardon for the breaking of the prison 1. As p. 3 Fi. Cor. 154 157. which trauerse or pardon being tried or allowed he shal be restored to his triall by battell 7 As there be impediments of the defendants part Le ts of trial by battell on the plaintifes part why he may not wage battell against the appellant so be there lets of the appellants part that the appellée cannot wage battell against him for as vehement presumptions of the defendants guiltinesse be causes to put him from waging of battell so be vehement presumptions of the appellants infirmities or weakenesse sufficient barres to exclude the appellée from triall by battell with him As if the appellant be within the age of fouretéene yéeres or aboue the age of thréescore and tenne yéeres Fi. Cor. 230 268. 22. E. 4. 20 or within orders or a woman or be maihemed whether he were maihemed by the appellée at the time that the saide appellée robbed him or at any other time or as some doe affirme whether he was maihemed by the appellée or by any other And some doe holde it for Lawe that if the appellant be aboue the age of thréescore yeares the appellée shall no more wage battell against him than against an infant within age or a woman But if the appellée will wage battell being of that age he may for though he may discharge himselfe of battell in respect of his saide age if hée will Bracton yet in that the Lawe hath giuen him his choice whether he will be tried by battell or by the Countrey hée may refuse the benefit of his age and wage battell Priuiledge of the Appellāts person 8 In some cases the priuiledge of the person of the appellant shall put the appellée from the triall by battel with him as the person of the King when the defendant is arraigned at his suit in an appeale for in an arraignment vpō an Indictment at his suit The King the partie indited shall not wage battell for the vehement presumption that the Inditement is true béeing found by the oathes of twelue lawfull men of the Countrey Plo. com 335. And as the person of the King shall be exempt from battell so shall all other to whom the King shal please to grant such an exemption As in former ages such a graunt hath béene made by some King of this Realme to the Citizens of London that battel shal not be waged against any of them in any appeale whatsoeuer brought by any of them Fi. Cor. 125 157. And if a citizen of London Citizens of London will bring an appeale against another and the defendant will offer to wage battell with him though the Appellant would refuse the benefit of this priuiledge and ioyne battell with him yet the battell shall not be performed for the Mayor and Comminaltie of London must sue a writ out of the Chauncerie directed to the Iudges where that triall should bée made rehearsing their libertie and pray allowance thereof to stay the trial by battell And though in the foresaid case and other cases Fi. Cor. 125 where counter-pleas to battell be pleaded the plaintife doth count that if the defendant will denie it he is ready to prooue it by his body yet the defendant in his plea cannot take aduantage thereof for those be but words of forme and not of substance and notwithstanding this conclusion he may make his trial by the countrie or otherwise as the law will 9 By the Statute of an̄ 6. R. 2. St. 6. R. 2. 6. it was enacted That if any Noble mans daughters Ladies or other women be rauished and after the same rape committed doe consent to the Rauishers the husbands of such women if they haue husbands or if they haue no husbands liuing then their fathers or other their next kinsmen in blood shall haue the suit to prosecute and may pursue against the same offendors and rauishers in this behalfe and to conuict them of felonie No wager of battell in appeale of Rape though the same woman after the rape doe consent to the rauishers And in this case the defendant shall not wage battell but the truth of the matter shall be tried by the countrey S. Felonies by Stat. 2. One fighting with seueral men 10 If one man doe appeale diuers men of one felonie 47. E 3 5. 19. H. 6. 35 and they all ioyne in battell with the Appellant he must fight with them all one after another if it doe not so chance that he is slaine by one of them before he can performe the battell with the residue which if it happen all the residue of the defendants shall be discharged of the appeale But if when the Appellant doth come into the field to fight with one of the Appellées Fi. Cor. 98 he will then confesse his appeale to be false towards him yet that shall not discharge the residue of the appeale but they shall procéed in their triall with the appellant And likewise if one man be appealed by three men of seuerall felonies and he doe plead not guiltie ready to trie it by his bodie in this case hee must fight with them all one after another and though he doe vanquish or kill one of them this will not discharge him against the other Bracton de cor ca. 19 But if thrée men doe appeale one man but of one felonie then if the Appellée doe vanquish one of them he shal be discharged against the other two And in that case if the said thrée Appellants be Approuers 7. Ed. 3. 12 then the other two shal be hanged 11 And all that is before written touching Triall by Battell may be applied as well to the appeale of an approuer An Appeale by approuer who confesseth himselfe to be a felon as to an appeale commenced by a true man Fi. Droit 57 12 If a man be appealed of felonie The Appellee wageth battell and then becommeth blinde and wageth battell with the appellant and after he doth become blinde by infirmitie and not by his owne procurement he shall be discharged of the battell and so it is in a writ of Right for in this case the appellée hath pleaded such a plea as the Lawe doth allowe him and his disabilitie to performe it commeth by the act of God But if after the Defendant hath waged battell with the appellant the same appellant shall become blinde by what meanes soeuer the appellée shall be arraigned at the Kings suite S. Appeales 96. Triall by Peeres WHen the Defendant hath pleaded Not guiltie to
an appeale or an indictment then the matter commeth to be tried betwéene the King and him or the appellant and him whether he be guiltie Triall of the plea Not guiltie or not If it be in an appeale it may be tried by Verdict or by Battell as the appellée will sauing in certaine Cases But vpon an Indictment there is no triall by battell nor otherwise sauing onely by verdict In an Indictment of treason or felonie against one of the Péeres of the Realme the triall is by his Péeres which manner of triall in an appeale is not allowable The arraignment of a Peere of the Realme 2 When a Péere of the Realme 1. H. 4. 1. 13. H. 8. 13. 10 Ed. 4. 6. and Lord of the parliament is to be arraigned vpon any treason or felonie whereof he is indicted and whereunto he hath pleaded Not guiltie the King by his Letters patents shall assigne some great and sage Lord of the parliament to be high Steward of England for the day of his arraignement who before the same day shall make a precept to his Serieant at Armes that is appointed to serue him during the time of his Commission to warne to appeare before him eightéene or twentie Lords of the parliament vpon the same day And then at the day appointed when the high Steward shall be set vnder the cloth of Estate vpon the arraignement of the prisoner and hath caused his Commission to be read the same Serieant shall returne his precept and thereupon the Lords shall be called and when they haue appeared and be set in their places the Constable of the Tower shall be called to bring his prisoner into the Court who then shall bring the prisoner to the Barre And then the high Steward shall declare vnto the prisoner the cause why the King hath assembled thither those Lords and him and perswade him to answer without feare And then hée shall cause the Clerke of the Crowne to reade his Indictment vnto him and to aske him if hée be guiltie or not whereunto when hée hath aunswered Not guiltie the Clerke of the Crowne shall aske him how he will be tried and then he will say by God by his Péeres And then the K. Serieants and Atturney will giue Euidence against him whereunto when the prisoner hath made answer the Constable shall be commaunded to retire the prisoner from the Barre to some other place while the Lords doe secretly conferre together in the Court and then the Lords shall rise out of their places and consult among themselues and what they affirme shall be done vpon their honours without any othe to be ministred vnto them And when they all or the greatest part of them be agréed they shall returne to their places and sit downe And then the high Steward shall aske of the yongest Lord by himselfe if he that is arraigned be guilty or not of the offence whereof he is arraigned and then of the yongest next him and so of the residue one by one vntill he hath asked them all and euery Lord shall answer by himselfe And then the high Steward shall send for the prisoner againe who shall be led to the Barre to whom the high Steward shal reherse the verdict of the Péeres and giue iudgement accordingly But if an Earle the sonne and heire apparant of a Duke or a Lord the sonne and heire apparant of a Marques or Earle 38. H. 8. Br. Treason 2 be indicted of high treason he shall be tried by Knights and Gentlemen and not by Péeres for he is not an Earle by Creation but by Natiuitie But if he be of dignity by creation and a Lord of the Parliament hee shall be tried by his Peeres 3 The foresaid manner of Triall séemeth to be appointed by the Statute of Magna Charta St. 9. H. 3. 29. which hath ordained That no frée man shall be taken or imprisoned or disseised of his fréehold liberties or frée customes nor shall be outlawed banished or by any meanes brought to destruction Neither wée will passe or sit in iudgement vpon him but by the lawfull iudgement of his Péeres or by the lawe of the Realme We will not sell deny or deferre iustice or right to any It appeareth by this statute of Magna Charta By whom Péeres appealed shal be tried that a Péere of the Realme shall be tried by his Péeres onely in case where he is indicted at the Kings suite of treason or felony for the words of the statute be we will not passe or sit in iudgement vpon him but by his Péeres 10. Ed. 4. 6 But if an appeale of murder or other felony be sued by any common person against a Péere of the Realme he shall be tried by common persons and not by his Péeres And because there was no mention made in the said statute of Magna Charta how women Ladies of great estate because of their husbands Péeres of the Realme married or sole viz. Duchesses Countesses or Baronesses should be put to answer nor before what Iudges they should be iudged vpon indictments of treasons or felonies by them committed and for that the saide statute of Magna Charta doth onely make mention of a man Therefore by a statute made Anno 20. H. 6. 9. St. 20. H. 6. 9 it was enacted By whom ladies shal be tried That such Ladies of great estate viz. Duchesses Countesses and Baronesses which shall be indicted of any treason or felony by them committed whether they be married or sole shall be brought to their answer and put to answer and iudged before such Iudges and Péeres of the realme as Péeres of the realme should be if they were indicted or impeached of such treasons or felonies committed 4 None of the foresaid statutes haue béene put in practise to extend to Bishops Bishops though they enioy the name of Lords of the parliament for they haue that name of Bishops in respect of their office or function and not in respect of their nobilitie neither haue they places in parliament in respect of their nobilitie but in regard of their possessions being ancient Baronies annexed to their dignities If a Péere of the Realme be indicted of treason or felonie he may be thereupon arraigned in parliament Arraignment in parliament if it shall please the King 10. E. 4. 6 and then the Lords spirituall shall make one Procurator for them for that by the Cannon lawe they cannot condemne any man to death A Bishop was arraigned in the Kings Bench and not by any Lords of parliament for that hée came to the parliament by summons and departed without licence 3. E. 3. 19 and because this was an offence as well to the King as to the Péeres and the King may comemnce a suite where he please for a trespas done to him therefore this was accepted a lawfull indictment though the complaint was made in an inferiour Court for an offence done in an higher
and Terminer Nisi prius for the defendant in appeale 4 Although by the common Lawe a Nisi prius is grantable for the king but not grantable against the king where he is partie to the suite or where the matter in question doth touch the kings right or where he is party thereunto but by aide praier vnlesse his Atturney will assent thereunto yet in an appeale of felonie when the appellant and appellee be at issue the Defendant may haue a Nisi prius to pursue the same issue 21. H. 7. 34 if there be any default in the Plaintife that he doth not pursue it with effect though the K. be in a sort party to that suite for otherwise the appellée should continually remaine in prison to his vtter vndoing and neuer haue remedy Neither the Defendant in an appeale shall not haue a Venire facias with a prouiso 14. H. 7. 7. 15 H. 7. 9 21. H. 6. 36 vntill hée hath assigned some default in the Plaintife in the pursute of it And yet the Plaintife may at his pleasure stay the Defendant in procéeding further with his processe in praying a Tales vpon the Defendants processe Remaunding of prisoners out of the K. Bench to be tried in the Countrie 5 Because diuers felons and murderers vpon vntrue surmises did oftentimes remooue as well their bodies as their Indictments by Writte and otherwise before the King in his Bench and could not by the order of the Lawe be remaunded and sent downe to the Iustices of Gaole deliuerie or of the peace nor other Iustices or Commissioners to proceede vpon them after the due course of the common lawe for that a Record which is once remoued into an higher Court can not by the common Lawe be sent backe to a more base and inferiour Court For the redresse whereof by a statute made An̄ 6. H. 8. it was ordained St. 6. H. 8. 6 That the Iustices of the K. Bench for the time being haue authoritie by their discretions to remaund and send downe as well the bodies of all felons and murderers brought and remoued or that shall be remoued or brought before the king in his Bench as their indictments into the counties whereas the same murders or felonies haue béen committed or done and to commaund all Iustices of Gaole deliuery Iustices of Peace and other Iustices and Commissioners and euery of them to procéed and determine vpon all the foresaid bodies and indictments so remoued after the course of the common law in such maner as the same Iustices of gaole deliuerie Iustices of peace and other Commissioners or any of them might or should haue done if the said prisoners or indictmēts had neuer bin brought into the said K. bench St. 4. Iac. 1. 6 By a stat made Anno 4. Iac. it was enacted Triall of felonies committed by English men in Scotland That all offences of coniurations witchcraft dealing with euill and wicked spirits murder manslaughter felonious burning of houses and corne burglary robbing of houses by day robberie theft the detestable vice of buggerie committed with mankind or beast and rape heretofore done and committed since his Maiesties comming to the crown of England or hereafter to be done or committed by any his Maiesties naturall borne subiects of this realme of England or the dominions of the same within the realme of Scotland or the dominions thereof and the accessories of and to the same shal be from henceforth inquired of heard and determined before his Maiesties Iust of Assise or his Commissioners of Oyer and Terminer or Gaole deliuery being naturall borne subiects within this realme of England and none other by good and lawfull men of the Counties of Cumberland Northumberland Westmerland or any of the said counties at the election of the said Iust of Assises or Commissioners in like maner and forme to all intents and purposes the alterations hereafter in this Act expressed only excepted as if such offences had béene done and committed within the same Shire where they shal be so inquired of heard and determined as is aforesaid At which trials for the better discouerie of the truth Witnesses allowed to him that is arraigned and for the better information of the consciences of the Iurie and Iustices there shall bée allowed vnto the party so arraigned the benefit of such witnesses only to be examined vpon othe that can be produced for his better cléering and iustification as hereafter in this Act are permitted and allowed St. 4. Iac. 1. 7 Euery Iustice of peace of the counties aforesaid The prosecutors and witnesses bound to giue euidence vnto whom complaint shal be made shall haue full power and authoritie by vertue of this Act to bind ouer by recognisance in a conuenient summe taken to his Maiesties vse as well the partie prosecuting as any witnesses which he shall desire to produce so as the said witnesses may haue their reasonable charges first tendred vnto them to prosecute and giue in euidence before such his Maiesties Iustices as aforesaid as the case shall require St. 4. Iac. 1. 8 Euery commander procurer counsellor abettor comforter receiuer The accessory tryed though the principall be not or other accessorie of or to any the offendors or offences aforesaid so committed in Scotland as aforesaid offending within the realms of England or Scotland shal be produced withall indicted tried iudged and executed without delay notwithstanding the principals or any of them be not conuicted or attainted And that no such offendor either accessorie or principall shall be allowed the benefit of his clergy No clergie No peremptorie challenge aboue v. The words of the Indictment nor admitted to his peremptory chalenge of aboue the number of fiue And that euery indictment of any of the offences aforesaid so committed as aforesaid shal be adiudged of as good force in law notwithstanding the words contra pacem coronam dignitatem nostras be omitted as if the said words had béen therein contained Euery Iuror must haue v. l. of fréehold 9 No Sherife Vndersherife or other Minister to whom it appertaineth St. 4. Iac. 1. shall returne any Iuror to enquire of or try any of the offences aforesaid so committed as aforesaid except euery such Iuror shall haue fréehold in possession to the value of v. l. by the yeare in the county where such inquirie and triall shall be vpon pain to forf for euery Iuror that shal be returned contrary to this Act the summe of xl l. to the K. and I. to be recouered by A. of debt B. P. or I. in any of the K. courts at West wherein no E.P. or W. c. And the offendor shall or may challenge any Iuror that shall passe vpon his life for want of such fréehold as aforesaid The offendor shall forf no lands 10 No naturall subiect of his Maiestie of the realme of England St. 4. Iac. 1. or of the dominions
Coroners will answer He that hath a pardon shal find sureties for his good abearing that he from thenceforth shall beare himselfe well and lawfully And the maineprises shal be sealed and returned into the chancerie within thrée moneths after the end of the said thrée moneths And if hée which hath such Charter will ayd himselfe thereby and hath not found such mainprises or after such mainprise found doth beare himselfe otherwise against the peace than he ought his charter shal be accounted void of no force The good behauiour broken after a pardon 14 A prisoner that was indited outlawed of felonie 3. H. 7. 7. pleadeth the Kings pardon of the same felonie and outlawrie but shewed no writ of allowance testifying that he had found suretie in the Chauncerie according to the foresaid Statute of 10. Ed. 3. neither did he make mention in his plea that he had fouÌ„d suretie according to that Statute nor yet did he vouch the Record thereof in the Chauncerie therefore the Iustices had no cause to allow of his Charter of pardon And the same offendor after his pardon graunted was indited before the Iustices of peace of the countie where he dwelt that he did beat and wouÌ„d A.B. against the Kings peace and thereof was conuict before the same Iustices of peace by his owne confession which Record of his conuiction was sent into the Kings Bench by the said Iustices of peace and for that he had borne himselfe otherwise than he ought toward the peace his charter of pardon was adnulled he had iudgement of death and was hanged A pardon must agree with the inditement 15 A Charter of pardon ought to agrée with the Indictment in the name surname and addition of the partie to whom the same Charter is graunted to the intent that he may be knowne to be the same person which is indited or otherwise it is not allowable sauing in some speciall cases As 11. H. 4. 3â— in appeale of death where the plaintife was non-suit after declaration and the defendant was arraigned at the Kings suit vpon the declaration whereunto he pleaded the Kings pardon which did not agrée with the appeale in the name of him that was slaine Where a charter may vary from the indictment nor in the day but agréed with the inditement in the death of the selfe same man to the which inditement this pardon had before time bin pleaded and allowed And for that it may well be intended of the same death séeing one man cannot haue two deaths it was allowed notwithstanding the variance Two men were outlawed in appeale of murder 28. 29. H. 8. Dy. 34. and they purchased their pardon and had a Scire facias against the Plaintife in the appeale and also a Scire facias against the Lords mediate or immediate and the pardon did not agrée with the inditement in the additions but the parties tooke an auerment that they were the same parties which were indited and an exception was taken to the pardon for the words of the pardon were Pardonauimus c. W.B. L.B. omnes omnimodas vtlagarias versus praefatos W.B. L. B. seu versus eorum alterum promulgatas which words in the premisses of the pardon be ioynt where they should haue been Pardonauimus c. W.B. L.B. eorum alteri because that euery felonie is seuerall and for these seuerall felonies they should haue had seuerall pardons And yet the pardon was allowed If a man be indited of felonie by the name of A.B. yeoman and after the King doth pardon him by the name of A. B. gentleman esquire 20. H. 7. Kel fol. 58. knight or c. all manner of felonies he may plead this pardon and auerre that A. B. yeoman and A. B. gentleman or c. be one person and this pardon will discharge him for it may be he was a yeoman at the time of the inditement and after made gentleman by the King or by some office 4. E. 4. 10 16 When after non-suit in appeale the Kings pardon is allowed it is vsed to enter the pardon and alowance vpon the bill of appeale The pardon and alowance entred vpon the appeale and thâ—refore if there be any inditement of the same felonie against the defendant it shalbée good for him to cause these words to be entred and indorced vpoÌ„ the indictmeÌ„t viz. Cesset processus faciendus super indictamentum eo quod defendens acquietatus recessit ab Appello 4. Ed. 4. 10 17 All this matter of pardons is in effect to be referred to indictments because the Kings pardon is no plea to the parties appeale A pardon no plea to an appeale for the felon shalbée put to death notwithstanding that But it is a good plea against the King when the appeale is determined And if it be determined by act in law and not by the act of the partie the pardon shall not be allowed without warning of the partie as in appeal the plaintife doth pursue it vntill he hath outlawed the defendant in this case by the Outlawry the appeale is determined and yet if the king doe pardon the defendant the pardon shall not bée allowed vntill hée hath sued a Scire facias against the party at whose suit he was outlawed And if at the day of the Scire facias returned the partie doe appeare the Appellant may pray execution of him notwithstanding the pardon but if the Appellant be returned warned and doth make default the Charter shal be allowed without further suit Co. l. 50. 100 3. El. Dyer 201 261 The Kings pardon of burning in the hand In an appeale of murder the defendant pleaded not guiltie vpon his arraignment and by the enquest was found guiltie of manslaughter and then prayed and had his Clergie Whereupon by force of the Statute of anÌ„ 4. H. 7. 13. St. 4. H. 7. 13 he being a conuict person ought to bée marked by the Gaoler openly in the Court which marking or burning in the hand the king did and may pardon though it be in an appeale for burning in the hand is no part of the iudgement but onely a meane to notifie to the Iudge vpon an offendors second conuiction that he once before had his Clergie vpon a former conuiction And for that it was ordained by the Statute of anÌ„ 18. El. 6. St. 18. El. 6 That after Clergie allowed and burning in the hand the prisoner shall be forthwith enlarged and deliuered out of prison which act doth extend as well to the case of the Appeale as to the case of an Indictment Therefore the King hauing pardon the burning in the hand the partie was also discharged of his imprisonment 2. R. 3. 8 18 A Scire facias vpon a Charter of pardon may be graunted against an appellant Vpon a pardon a Scire facias against an appellant though the appellée which doth pray it sheweth
not any release of the appellants made vnto him or any such other matter in discharge of the appeale for he shall come time enough to shew that when the appellant doth appeare vpon the Scire facias And the appellée may haue a Scire facias against the appellant though in the Charter there be not this clause viz. ita quod stet rectus in curia Fi. Char. 17 19 An appeale was brought against a principall and accessorie Non-sute doth not aide an appellee that is outlawed the principall was pursued to an Outlawrie whereupon an Exigent was awarded against the Accessorie returnable at a certaine day at which day the Plaintife was Non-suit in his Appeale and then the Principall came with a Charter of Pardon and prayed allowance thereof for that the plaintife was Non-suite which would not bée graunted by the Court for that the non-suit did not ayde him seeing the appeale was determined before against him by the Outlawrie 20 A man beeing arraigned of felonie pleaded not guiltie 8. Ed. 4. 29 and beeing demanded how he would be tried he shewed forth the Kings protection The Kings protection and said that the same was a sufficient discharge for him and would make none other answere whereupon the Iustices agreed that he should be put to his penance viz. to his paine for t dure And yet at another time Fi. Cor. 239 one béeing found guiltie of felonie shewed the Kings Charter which did not containe any pardon but onely that the King had retained him to goe with him into Gascoigne that was allowed and the Iustices did surcease to procéed any further against him Pardon of a felonie before it was committed 21 A. was indicted for that he did the 13. day of February Plo. com 401. anÌ„ 13. ReginÌ„ Eliz strike B. whereof the said B. died the 18. day of Iune then next following A. vpon his arraignmeÌ„t pleaded the generall pardon by Parliament by which all felonies offences misdemeanours c. in the act not excepted which might bée pardoned before and vntill the 14. day of February were pardoned released and discharged against the Quéene and auerred that neither hee nor the said offence were excepted in the said pardon and praied to be discharged And he was discharged by the said pardon for that the wound giuen by the prisoner was the cause of the felonie the giuing of which wound was an offence misdemeanour against the Crowne the which was pardoned by the Act of Parliament and by that meanes all acts ensuing vpon the same offence were pardoned ⧠Standing mute or answering indirectly AT some time he that is arraigned of felonie is so farre both from making confession of the felonie whereof he is indited and also of pleading not guiltie thereunto that hee will make no answer at all but stand mute of malice and euill will or otherwise plead such matter which is no answer to the felonie whereof hée is arraigned or such a peruerse plea which is no direct answer to the offence whereof he is indited Stand mute or not answering directly Or if he doe answer to the offence yet he will so conclude his plea that the same plea can haue no triall Fi. Cor. 233 283 359 4. Ed. 4. 11 Kel fol. 70. In all which cases he shall be put to his penance for contemning the law and refusing of the ordinarie triall deuised by the law that is to say he shall be put to paine grieuous and durable otherwise tearmed to paine fort dure and as it is commonly tearmed he shal be pressed to death Which paine is called grieuous for that it is so heauie and weightie that hée is not able to endure it and it is called durable because the offendor shall neuer haue ease or reliefe of it but shall die in it 2 The paine grieuous and durable was not at the common law but Felons refusing lawfull triall ordained by the Statute of Westminst 1. made anÌ„ 3. Ed. 1. St. 3. E. 1. 12 whereby it was enacted That notorious felons openly knowne of euill name who will not put themselues vpon enquests of felonies which men doe prosecute before the Iustices at the Kings suit shal be put in hard and strong prison as they which refuse to be tried by the law of the Realme But this is not to be intended of prisoners which be taken for light suspition By which Statute it doth appeare that none shal be adiudged to this paine if there be not euident or very probable matter to conuince him of the offence whereof he is arraigned or otherwise that he is a notable théefe or openly known to be of an euil name which the Iudge ought strictly to examine before hee procéed to iudgement against him â—â—nnance onâ—â— vpon an indictment and not vpon an appeale 3 The iudgement of pennance is only to be giuen when a prisoner is arraigned at the Kings suit and not where he is arraigned at the parties suit 21. Ed. 3. 18 for the words of the Statute be and will not put themselues vpon enquests of felonies which men do prosecute before the Iustices at the Kings suit and therefore in an appeale prosecuted at the suit of the party the iudgemeÌ„t of pennance viz. of paine grieuous durable shall not be giuen but another iudgement that is to say that the offendor shal be hanged And an offendor shal haue this iudgement of pennance at the K. suit 40. Ass p. 40 although that suit be begun before his due time viz. within the yeare after the offence committed where the king ought to haue taried vntill the yeres end for the interest of the party who was to pursue his appeale within the yeare Pennance for piracie 4 If a man be indicted and arraigned before Commissioners to heare and determine for Piracie and Robbery committed vpon the sea 7. El. Dyer 242. and he wil stand mute and not answere directly he shall haue iudgement of pennance viz. of painefort dure and that is by force of the statute of Anno 28. H. 8. St. 28. H. 8. 15. which hath ordained That all Treasons Felonies Robberies Murthers and confederacies committed vpon the Sea or in any other Hauen Riuer Créeke or place where the admirall hath or pretendeth to haue iurisdiction shal be inquired heard cried determined and iudged in such shires places in the realme as shal be limitted in the kings Commission or Commissions to be directed for the same in like forme as if any such offences had béene committed vpon the land And such Commissions shal be had vnder the great Seale directed to the Admirall or his Lieutenant and Deputy and to thrée or foure such other as shal be appointed by the Lord Chancelor as often as néed shal require to heare and determine such offences after the common course of the laws of this land vsed for Treasons Felonies Robberies Murthers and
a possession in the stolne goods for the owner of these goods hauing not prosecuted and giuen euidence against the offendor to attaint him of Felonie either by Appeale or Indictment can neither haue restitution of these goods by the common law nor by force of the Statute of 21. H. 8. 11. 14 In the time of King Edward the second it was holden for law That if a wife did kill her husband Forf where a woman killeth her husband and after did flie all the goods within the house and without the corne in the barnes and yard and that which was growing on the ground should be confifcat and forfeit to the King And their reason was for that when the husband is killed and no will was made by him of his goods they ought to remaine to his wife and then shée being in case that by the committing of this treason shee cannot haue them Anno 8. E. 2 Fi. Cor. 423 they bee forfeit to the King and confiscat But that law séemeth to bee altered by the Statute of Anno 31. Ed. 3. which hath ordained That where a man dyeth intestat the Ordinarie shall depute the next and most lawfull friends of him which dyed intestat to administer his goods And moreouer St. 31. E. 3. 11. St. 21. H. 8. 5 by the Statute of 21. H. 8. it is further enacted That if any person die intestat or the Executors named in any such Testament refuse to proue the sayd Testament then the Ordinarie or other person or persons hauing authoritie to take probate of Testaments shall graunt the administration of the goods of the Testator or person deceased to the widow of the same person or to the next of his kinne or to both as by the discretion of the same Ordinarie shall bée thought good taking suertie of him or them to whom shall be made such Commission for the true administration of the goods cattels and debts which he or they shall be so authorised to administer By which two Statutes it doth appeare that the law doth not cast the interest of the husbands goods dying intestat vpon the wife nor giue her such a title thereunto as shée may either possesse alien or forfeit them vntill she be authorised by the Ordinarie And in the meane time betwéene the husbands death and that the administration of the goods of the intestat be graunted to some person or persons the interest of the goods is in the Ordinarie as appeareth by the Statute of Westminst 2. 13. Edward 1. 19. P. 10. Ed. 4 1 15 If hée that is made Executor Executor shall not forfeit his Testators goods or which hath taken letters of Administration of the goods of one which dyed intestat be attainted of Treason or felonie he shall not forfeit the goods of the Testator or intestat because those goods bée the Testator or intestats goods in his custodie and he hath not them to his owne vse but a right of disposing of them towards the performance of the Testators will or to pay the intestats debts And whereas the law doth allow a woman couert to make a will and to ordaine her husband her Executor thereof or to make any other person her Executor by her husband consent of her Parophanalia 39. H. 6. 27. 12. H. 7. 22. 18. E. 4. 11. 4. H. 6. 31. or Iewels of value and of such debts as were due to her as Executrix to another and of such Obligations Recognisances and other specialties as were before mariage made or acknowledged vnto her and of such goods as were taken wrongfully from her before the mariage betwéene her husband and her for the recouerie whereof the husband may haue his actions as Executor to his wife but not as husband to his wife neither would they euer haue béene recouered if she had not made an Executor and when they bee recouered the Executor shall stand chargeable to others for debts due and payable by his wife so farre as the same goods recouered will extend In this case if the husband or that other which is made Executor to the woman couert M. 33. H. 6. 31. shall bée attainted of Treason or Felonie the goods of the wife or the money recouered shall not bée forfeited to the king because the Executor hath them but towards the performance of the womans will and to satisfie those debts and legacies which shee did stand charged to pay 16 If any person that is ioyntenant Iointenants forfeiture or tenant in common with another of goods bee attainted of Treason or Felonie the whole goods shall bée forfeited to the King And if a lease for the terme of yeares be made to the husband and wife of certaine landes Fitz. Trauerse 33. 50. Ass p. 5. Ps Com. 258. and the husband bée attainted of Treason or Felonie the whole terme shall bée forfeited to the King And likewise it is of felo de se if a lease bée made to him and his wife for the terme of yeares hée shall forfeit to the King the whole terme 17 The law in some cases doth giue another title to the King of goods that late were another persons and doth not terme it a forfeiture but a confiscatition of goods Confiscation of goods and that is when the goods were not claimed or title pretended vnto them by any other Fitz. Cor. 355. 368. As if a man be indicted for the felonious stealing of another mans goods where in truth those goods were his owne and the goods be brought into the Court as a manoure against him and it is asked of him whose those goods be and he doth disclaime to haue any propertie in them by this disclaimer he shall loose the goods Confiscation by disclaimer in his owne goods though they were his owne and though he be acquit of the felonie the goods by this disclaimer shall bee confiscat to the King but if he had not disclaimed in them Fitz. Cor. 391. the goods should haue béene restored vnto him Confiscation by disclaiming in the goods of others 18 If goods be found in the possession of a felon which he doth disauow Fi. Cor. 368. and after he is attainted for the stealing of other goods but not of those In this case the goods which he did disauow shal be confiscat to the King But if hée had béene attainted for the stealing of those goods Fitz. Forf 24. they should haue bin termed goods forfeit and not goods confiscat Confiscation of goods left out of an appeale 19 If one doe bring an Appeale of Robberie against a felon and leaueth out of his Appeal some part of the goods robbed Fitz. Cor. 100. Co. li. 5. 110 in this case the King shal haue those goods which be left out of the Appeale for the plaintife cannot enlarge his Appeale nor recouer those goods left out And therefore séeing the felon can make no executor nor any can be administrator
to him and so no other person is intituled to haue those goods the King shall haue them as confiscat according to the old text Quod non capit Christus capit fiscus And the appellant shal be thus punished by the losse of his goods for his negligence attenuating concealing of the robbers offence Confiscation by a false appeale 20 If a man bring an Appeale of Robberie against another which tooke the Appellants goods lawfully Fitz. Cor. 367. and not feloniously viz. found them in the high way it is so found by verdict in this case though the appellée hath no cause to detaine them against the appellant for that they were his owne goods yet the plaintife shall loose them for his false appeale and they shall bee confiscat to the King and also the appellant shall bée committed to prison for charging the defendant with robberie whom he did know came lawfully by the goods Co. li. 5. 110 and so for malitious séeking of a mans bloud without cause and the defendant shal be discharged 21 There is another kind of forfeiture of felons goods to the King which is called a waif A waife and that is when a felon vpon huy and cry or other pursuit after him or for feare to bee taken er otherwise to ease himselfe of carriage Co. li. 5. 109 doth without Huy and crye wayue cast away or goe from the goods that hée did steals and hath in his possession or some part thereof and doth flye away whereupon the Kings Officers or some other in the Kings right doth seise those goods Seising of a waife In this case the goods so seised be called a waife and the King shall retaine them to his proper vse if the owner of them doth not make fresh suit after the felon to attaint him for those goods And if the owner doe make fresh suit after the felon hée shall haue his goods againe notwithstanding the waiuing and seising of them And this forfeiture of goods by waife is a penaltie which the law imposeth vpon the owner of those goods for default of fresh suit against the felon and for omitting his duetie in pursuing and apprehending of the felon being a pernitious and corrupt member of the Commonwealth St. 21. H. 8. 11. And by the Statute of 21. H. 8. the Iustices before whom any felon or felons shal be found guiltie or otherwise attainted by reason of euidence giuen by the partie robbed or owner of any money goods or cattels robbed or by any other by his procurement haue power to award from time to time writs of Restitution for the said money goods or cattels as though any such Felon or Felons were attainted at the suit of the party in Appeale But if a felon doe steale goods Co. li. 5. 109 and carrie them into a Mannor and there leaue them or leaue them in his owne house or in the house of any other or in the custodie of any other or hide them in the ground or in any secret place and after doth flie these goods shall not be adiudged in law to be waiued nor shall bée forfeited for if the felon hath not the goods with him when he doth flie or doth waiue them for feare to be taken they shall not be accounted waiued or forfeited but the owner may take them againe without fresh suit for that there is no default in him 22 If a felon do steale goods and after doth waiue them The owner seiseth goods waiued the owner of them may reseise the same goods and carrie them away twentie yeres after the waiuing of them if in the meane time no Officer of the Kings nor of any Lord of a libertie 21. Ed. 4. 16. hath seised them before the owner But if any Officer of the Kings or of any Lord of a Franchise hath seised them before then the owner must sue an Appeale against the felon and so he may haue his goods againe if hée hath made fresh suit or else the owner must procure the felon to be indicted arraigned and found guiltie or otherwise to be attainted by euidence giuen by himselfe or by some other by his procurement and by that meanes obtaine a writ of Restitution to be awarded by the Iustices before whom the sayd felon shall be arraigned according to the foresaid statute of 21. H. 8. 11. And the like law is if a felon do steale goods and doth not waiue them nor any Huy and crie is made vpon him but one in the Kings right doth take the goods from the felon vpon suspition that he hath stolne them yet the owner vpon fresh suit shall haue restitution of them againe for it may be that the owner had not intelligence of the stealing of his goods a long time after they were stolne and then could not make fresh suit nor leuie huy and crie 23 There can be no waife but of goods stolne sauing in certaine cases for if one do take goods as a trespassor and doth goe from them No waife but of stoln goods no man can seise them as a waife P. 13. E. 4. 5 And therefore in an action of Trespas of goods taken away if the defendant do iustifie for a waife it is a good issue for the plaintife to ioine that the goods were not stolne And if a man do fly for a felonie and leaue his house goods yet those goods shall not be a waife for that they were not stolne And in some speciall case there may be a waife though there be no stealing Waif of goods not stolne as vpon a huy and cry leuied 29. E. 3. 29. a man that hath committed no felony doth leaue his owne goods and doth flie to a church those goods may be seised to the Kings vse for a waife No waife of goods stolne from an Alien 24 If the goods of an Alien which hath the Kings safe conduct both for bodie and goods be stolne from him and by the felon bée after wayued and refused yet those goods cannot bée claimed or seised by the Officers of the King or of any Lord of a Franchise for a waife for when the King hath graunted to the Alien safeconduct both in bodie and goods and this is a couenant betwéene the King and him then if a felon doe steale his goods and after waiue them it is no reason that the Alien should loose them and be put to sue against the felon but he must sue to the King vpon his couenant And therefore the K. cannot haue those goods as waife and by the same reason hee cannot graunt them to another neither can any haue them by prescription Forf of lands 25 As he that is attainted of Treason or Felonie shal loose his goods debts and rights Tenant for yeares so also shall be forfeit his leases for terme of yeares of lands the lands which he holdeth by extent of Statutes Recognisances or Iudgemēts his
felony committed to pursue the Felon so hastily that if it be possible he may take him with the manoure and thereupon bring his appeale against him Fi. Cor. 379. and conuince him of the Felony And the said spéedy and diligent pursute of his is called Fresh suit which thing being found by a Iury the king ought to make restitution to the appellant of his goods contayned in the appeale which his officer or any other to his vse did seize But if it be not found by a Iury that the owner did make Fresh suit the said owner shall loose his goods and the king shall haue them although the Felon be conuict at the same parties suit For as the Law doth so abhorre Felonies and Felons that it punisheth a Felon with the losse of his life his lands goods and all that he hath so doth it in such sort condemne the concealing wincking at or slacke pursute of a felon that it punisheth a true man with the forfeiture of his goods stolne from him for omitting his duty in making fresh sute after prosecuting and pursuing to death of a knowne Felon If the manoure wherwith the Felon is taken be portable or otherwise may be conueniently done it ought to be brought into the Court before the Iustices and if it be in a chest boxe cloake-bag Fi. Cor. 392. or male the appellant must declare the goods particularly which be in it before it be opened or that he can haue it restored vnto him againe And if the Fresh suit be made by the seruant of him that is robbed and not by the party himselfe Fresh suit by the seruant yet it is sufficient to procure him restitution of his goods And if the Felon which committed a Robbery or other Felony be not taken by the space of a yeare after the Felony committed yet if the party that was robbed or whose goods were stolne do his endeuour to apprehend the Felon and make diligent and speciall inquiry for him and after he is taken 7. H. 4. 43. though not at the suit of the party robbed or c. yet that shal be adiudged a sufficient Fresh suit and vpon his appeale brought and the offendor conuicted he shal haue restitution of his goods robbed or stolne What conuiction shal be sufficient to giue the owner restitution of his goods 2 Though in former times it was not adiudged sufficient for the appellant to conuict the offendor of Felony but he must haue attainted him thereof before he could haue had restitution of his goods and if the Felon were in that case that he could not be attainted at the owners suit he should not haue had restitution of his goods but they should haue bin forfeited to the king Fi. Cor. 319 were the suit neuer so fresh As if the felon being pursued by the party robbed with huy and cry did flie to a Church and made his abiuration H. 8. E. 3. 10. or that the Felon was in prison and died before the owners appeale commenced But now the law is otherwise construed for it is thought to be a great extremity that the party which was robbed should loose his goods when he hath done all that hée could that there was no default in him And therefore it is now agréed Fi. Cor. 379 380. 26. As◠p. 32 Fit Forfeit 15. 8. H. 4. 1. 10. H. 4. 5 that if after the appeale commenced the Felon do die in prison or do breake the prison and flie to a Church and there abiure the Fresh suit shal be inquired of and if it be found the party robbed shall haue restitution of his goods And in like sort if the offendor will stand mute of malice or challenge peremptorily aboue the number that the law doth appoint him or will demaund his clergy in all these cases the Fresh suit shal be enquired of and if it be found the appellant shall be restored to his goods and yet in these cases the Felon is not attainted But because the appellant hath done his indeuor and all that is in him to attaint the Felon it is reason that he shall haue restitution of his goods When the owner shall haue restitution 3 Restitution shal be graunted and made to the owner of his goods stolne 21. Ed. 4. 73. Fit Co. 392 as soone as the Felon shal be attainted or conuicted by his appeale the Fresh suit shal be found though the appellant doth not pray or sue execution of the body of the appellée for the appellant hath prosecuted the suit so farre that hée hath brought the felon to the kings mercy so that the appellant nor any other for him can stay or release the execution but only the king and therefore it is reason that he now should haue restitution of his goods And some do affirme that when the appellant hath so farre prosecuted the appellée 21. Ed. 4. 16. that he is outlawed that the appellant shall haue restitution of his goods without inquirie of the Fresh suit because he hath pursued the suit against the offendor so farre as he can If an appeale be sued against the principall and accessorie and the principall is attainted and the Fresh suit is found 21. E. 4. 16 10. H. 4. 5. the appellant shall haue restitution of his goods without suing against the accessory And though he doe continue his suit against the accessory yet that shall not hinder his restitution for that he hath procured the attainder of the principall Felon and whether the accessorie bée attaint or acquit yet the appellant shall haue restitution of his goods And in like sort if an appeale be sued against two as principals and one of them is attainted and the other is acquited and the Fresh suit is found the appellant shall haue restitution of his goods for that it doth appeare that the appellant was robbed of his goods and had cause to sue for though the appeale be found false in part touching him that is acquit yet that shall not preiudice the appellant séeing that falsehood commeth not of his owne declaration but by the verdict of the Iury. If one man do robbe diuers men whereupon they doe bring their seuerall appeales and the Felon is attainted at the suit of one of them 4. E. 4. 11. and that it is moreouer found that he hath made Fresh suit in this case the residue shall not haue restitution vntill the Felon be found guilty at their seuerall suites and the Fresh suit also seuerally found 4 Before Restitution can be awarded of Felons goods Before whom and by whom inquirie of fresh suit is to be made an enquirie is to bée made of the Fresh suit before the Iustices and not before the Shirife though it be but an Enquest of Office and it is to bee done by the Iury that doth find the defendant in the appeale guilty of the Felony vnlesse it bée in case where the defendant doth confesse
the appeale of the plaintife and then it shall be inquired by the Visne where the Felony was committed by the people of that County where the appeale is brought except it bee brought in London for London hath such a priuiledge that they shall not bée drawne to appeare vpon Iuries out of the Citie and the Kings Iustices cannot goe into the Citie and take the same by Nisi prius because it is but an Enquest of Office 1. H. 4. 5. 2. R. 3. 12. and therefore in that case they doe inquire of it by people of the County where the Felon was taken and from thence shall the Visne come But first the Court is to inquire of the Defendant in the appeale Fit Forfeit 15. if hée doe clayme any propertie in the goods or not and if hée clayme nothing therein then it must enquire if the goods were the plaintifes at the time of the Robbery committed and moreouer inquire of the Fresh suit 5 By the common Law there was no helpe for the party robbed by indictment of the Felon to recouer his goods againe or to haue restitution of them Restitution vpon attainder by indictment for although the enquest which tried the Felon vpon his arraignment would after they had found him guilty of the Felony Fi. Cor. 460. haue said that the party robbed had made Fresh suit yet that would not haue auailed to haue procured him restitution of his goods And therefore to redresse that enormitie there was a statute made Anno 21. H. 8. by which it was enacted St. 21. H. 8. 11. That if any Felon or Felons hereafter doe robbe or take away any money goods or cattels from any the Kings Subiects from their person or otherwise within this Realme and thereof the said Felon or Felons be indicted and after arraigned of the same Felony and found guilty thereof or otherwise attainted by reason of euidence giuen by the party so robbed or owner of the said mony goods and cattels and that as well the Iust of Gaole deliuery as other Iustices before whom any such Felon or Felons shal be found guilty or otherwise attainted by reason of euidence giuen by the party so robbed or owner or by any other by their procurement haue power by this act to award from time to time Writs of Restitution for the said money goods or cattels in like manner as though any such Felon or Felons were attainted at the suit of the party in appeale And so by force of this Statute the party robbed shall haue restitution of his stolne goods vpon euidence giuen by him or by any other by his procurement against the Felon though he neuer made any fresh suit S. Euidence 3. 4. Appeales 55. ⧠Dammages in Appeale 1 IVstice and reason doe require that when a mans life his fame and credit his lands his goods the disheritance of his posterity the corruption of his blood and all that he hath in this world to forfeit hath bin put in hazard and brought into question and triall without iust desert or other ground but only vpon the malicious accusation of some one or moe persoÌ„s and that he is found a true and lawfull man duly acquit by the country of the offence whereof he was appealed that he should haue recompence for it against his false accusor and if his accusor be not sufficient then against him or them that did procure or abet him to pursue the appeale And therefore the common law did giue dammages to the defendant in an appeale 48. Ed. 3. 22 and assigned him a meane to recouer them when he was acquit of the felony But because the dammages which were to be recouered against the procurors or abettors were to be recouered by writ originall viz. by a writ of Conspiracy and not otherwise which was not so spéedy a remedy as the great malice and wickednesse of the offence required the stat of West 2. was made for the quicker redresse thereof AnÌ„ 13. Ed. 1. the words whereof be these St. 13. E. 1. 12 viz. For as much as many through malice intending to grieue others do procure false appeales of homicide and other felonies to be sued by appellants hauing nothing wherewith to satisfie the king for their false appeale nor to answer to the party damages It is ordained that when any which is appealed of felony imposed vpon him doth acquite himselfe in the K. Court in due manner either at the appellants suit or the kings The punishment of the appellant and abettors wheÌ„ the appellée is acquit the Iustices before whom the said appeale shal be heard and determined shal punish the appellant by one yeres imprisonment and neuerthelesse such appellant shall yéeld to the appellée damages by the Iust discretion hauing respect to the imprisonment or arrest that the party hath sustained by reason of such appeale and to the slander which he hath receiued by the imprisonment or otherwise also he shal pay a grieuous fine to the K. And if the appellants be not able to recompeÌ„ce the damages inquiry shal be made by whose abetmeÌ„t the appeale was maliciously coÌ„menced if the appellée desire it And if it be found by the same Enquest that any man is aâ—ettor through malice he shal be distrained by a iudiciall writ to appeare before the I. at the appellées suit and if he be lawfully conuict of such abetment by malice he shall be imprisoned and restore dammages as is aforesaid of the appellant In an appeale of the death of a man there shall no Essoine lie for the appellant for any cause No Essoine for the Appellant in appeale of death in whatsoeuer court the appeale shal be determined The appeale must be commenced vpon malice 2 And whereas the words of the foresaid stat of West 2. be St. 13. E. 1. 12 For as much as many through malice it doth thereby appeare that if the defendant in an appeale be to recouer dammages it ought to be in respect that the appeale was grounded rather vpon malice then vpon good matter 40. Ed. 3. 41. 22. Ass p. 39 32. H. 6. 2. And therefore if the defendant were indicted of that Felony wherof the appeale was sued before the suit of the appeale although the def be after acquit thereof yet he shall not recouer dammages because it shal be intended that the indictment induced him to bring the appeale and not malice But the law is méere contrary if he were not indicted vntill after the appeale commenced Or if there be any such variance betwéene the appeale and the indictment that the acquitall of him vpon the one is not the acquitall of him vpon the other as if he be indicted as principall and appealed as accessory vel e conuerso And yet it is otherwise 14. H. 7. 2 if the variance be not in a matter of substance for such a variance shal not so preiudice but that the acquitall
felon 21 A wife not accessory to her husband 22 A wife may bee a principall felon 22 Accessaries to offēces made Felony by Statute 23 In Rape the assistant principall 24 Procurors and abettors in imbesilling of records 25 Accessaries to offendors in rebellious assemblies 26 Aidors and abettors in coniuration 27 Procurers to take a woman against her will 28 In what cases aiders bee principals 29 Acquitall of the principall acquitall of the accessarie 30 Principall and Accessary in Manslaughter 31 Two sorts of Attainders and which they be The principall shal be attainted before the accessary 32 Accessary in an appeale cōmenced by bill or writ 33 The principall shall be attainted before the Exigent shall bee awarded against the accessarie 34 The principall maketh default and the Accessarie appeareth 35 The Accessarie wageth battell 36 The accessarie pleadeth in abatement of the writ 37 Both the principall and accessary doe appeare Where the principals plea shal be tried before the accessaries answer 38 The principall pleadeth in abatement of the writ 39 The principall pleadeth not guilty 40 Seuerall principals and one accessarie 41 The attainder of the principall must be in the same suit 42 The principall attainted and dieth 43 The principall doth stand mute 44 Error in the attainder of the principall 45 An abiured accessarie returneth 46 The accessarie tryed vpon his owne request 47 The principall found not guilty 48 The principall dieth in prison before attainder 49 The principall attainted of another felony 50 The principal slew the dead man in his owne defence 51 The principall hath his clergie or pardon 52 In an appeale the acquitall of the principall is no acquitall of the accessary Breaking of Prison and Rescous Fol. 148. 1 Who is a prisoner 2 A stranger breaketh prison 3 Letting a prisoner escape 4 Negligent escape 5 Rescuing of a prisoner 6 Disturbing of an arrest 7 The Sherife returneth a Rescous 8 Whos 's the prison broken must be 9 Escaping or rescuing of one attached of Trespas 10 Rescuing of an offendor after iudgement 11 The imprisonment and not the attainder respected in escape 12 Letting escape one imprisoned for Treason 13 Disobeying of a warrant to arrest Hunters 14 Confession before a Coroner of breaking of prison 15 Opening the prison but not escaping Escape Fol. 149. 1 Voluntarie escape and what it is 2 Escape of an offendor not arrested 3 It must be felony at the time of the escape 4 Negligent escape and what it is 5 Killing of him that escapeth 6 Taking againe the party escaping 7 Licencing the prisoner to go to another towne 8 Licencing the prisoner to go into the same towne 9 Escape by bayling one not mainpernable 10 Escape of one arrested of petite Larcenie 11 Escape by the returne of Cepi Corpus 12 What is a double escape 13 Where an escape may bee without an arrest 14 Who shall be charged with an escape 15 Escape in a Towne walled 16 Flying to a Church and escaping 17 Escaping by making of abiuration 18 Escaping before or after arrest 19 Where the Sherife and where the Towne shal be charged with an escape 20 Where the Hundred shal be charged with an escape 21 Escape of one imprisoned for a time 22 Where the Towne Hundred or County shall bee charged with an escape 23 Who shall be charged with a prisoner if the Gaoler will not receiue him 24 Who is prisoner by matter of Record 25 Where a Towne shall bee charged with an escape 26 Where a Sherife shall bee charged with an escape 27 A Coroner sent to the Marshalsea to enquire of Escapes 28 Confessing and auoyding of an escape 29 Who is a prisoner by matter in fait Before whom an escape shall be presented 30 Iustices of Peace and the Coronor shall enquire of Escapes 31 Trauerse to a presentment of an escape 32 Escapes inquirable in Leets and Turnes 33 The penalties of Escapes 34 Where a man arrested may bee set at libertie without further tryall and where not Pursute by Huy and Cry Fol. 152. 1 All men shall pursue the huy and cry The punishment of concealement and not attaching of Felons 2 Fresh suit and inquiry shal be made after Felons The penalty if a Felon be not taken 3 Warding of townes that be walled 4 When the night watch shall be giuen and end The penalty of resisting of arrest 5 How highwaies shall be enlarged 6 The Hundred charged where Fresh suit vpon huy and cry shall cease The clerke of the Peace shall prosecute the suit 7 Who shall prosecute the suit if the clerke of the Peace doe die or be remoued 8 A remedie for equall contribution 9 Deliuering of the contribute money 10 Leuying of contribution 11 No penalty where any of the offendors be taken 12 Within what time the suit shal be commenced 13 In what manner huy and cry shal be made 14 Notice must bee giuen of the robberie The party robbed examined and bound to prosecute the offendors 15 A remedie for the inhabitants of Benherst in Barkeshire In what cases only their recouerie shal be had 16 Pursute will not serue without apprehension or descrying the Felons 17 Arresting of him that is pursued by huy and cry Appeales of Felonie Fol. 156. 1 What an appeale is Appeale by a woman of the death of her husband 2 An appellant conueyeth his title by a woman 3 The declaration in an appeale of Murther 4 The woman appellant must be the dead mans lawfull wife 5 The woman must liue vnmarried 6 The woman marrieth betweene iudgement and execution 7 Where an appeale for a woman but no dower 8 Where the wife may haue an appeale none other shall 9 Who shall haue the Appeale if the man slaine haue no wife A bastard Heire in borough English 10 An Appeale dyeth with the Appellant or by his Non-sute 11 The heire doth release the appeale and die 12 The heire doth recouer and die before the appellees execution 13 The eldest sonne disableth himselfe to bring an appeale 14 Who shall haue the appeale for killing of father mother brother or wife 15 A Lord killeth his villaine 16 An infant may haue an appeale 17 A man of threescore and tenne yeares of age may haue an appeale 18 Disabilities to bring an appeale 19 Disabilities in the appellant 20 Pleading that the appellant hath an elder brother 21 Atturny for the appellant in appeale 22 Who may pursue an Appeale of Robberie Robbing of a Carrier 23 The appeale of a woman of an infant of executors 24 A villaine shall not haue an appeale of Robberie against his Lord. 25 An Appeale or an Indictment for the kings goods 26 An Appeale of Robberie done to another 27 An Appeale of Rape 28 Who shall haue the appeale where a woman rauished consenteth 29 A lawful husband shal haue the Appeale of Rape 30 Where the father or kinsman shall haue an Appeale of Rape 31 An Appeale where the Lord doth rauish his Niefe
32 Pledges in Appeale of Rape 33 Within what time an Appeale shal be commenced 34 From what time the yeare shall haue relation 35 The yeare shall haue relation from the offence done 36 Within what time an appeale of Rape shal be commenced 37 In what County Appeale shal be brought 38 In what county an Appeale of Rape shal be brought 39 In what county an Appeale of Robbery shal be brought 40 Threatening in one county to bring money into another 41 Goods robbed carried into diuers Counties 42 Before whom an Appeale shal be brought 43 Remouing an Appeale out of the County 44 An Appeale before the Iustices of Gaole deliuery 45 An Appeale before the Iustices of the Kings Bench. 46 An Appeale against one bayled No Appeale against him that is let by mainprise 47 Appeale before Iustices of Peace 48 Appeale before the Constable and Marshall No Appeale in Parliament 49 Diuers Appeales for one felony 50 One onely Appeale for one Felony 51 Where diuers Appellees for one Felony 52 Two Appeals founded vpon one Felony 53 Robbery of seuerall parcels of goods 54 Where one shall answere to diuers Appeales or Indictments 55 Answere to diuers Indictments as well as to Appeales 56 He that hath his clergy shal answere to an Appeale of former offences 57 A Clarke shall answere to a former Appeale or Indictment of former offences 58 Proces in Appeale before the Coroner 59 Proces vpon an Appeale or Indictment 60 Proces against indictors in another County 61 Proces against Appellees and Indictees in forraine Counties 62 Proces vpon an Appeale remoued into the Kings Bench. 63 The party appealed must be supposed to be of a forraine countie 64 An appellee dwelling in no place certaine 65 Proces into a County Palantine 66 Proces against Principall and Accessarie 67 The Statute of West 1. extendeth onely to Appeales commenced by Bill 68 In Appeale one appeareth and others make default 69 Proces to remoue an Appeale 70 A Certiorari into the countie 71 Proces against the plaintife after an appeale remoued 72 Proces against the defendant after an appeale remoued 73 Proces against one that by the Shirifes returne escaped 74 Proces with a prouiso for the appellee 75 Proces to remoue prisoners or records 76 How the appellee shall bee led to the barre 77 Count in an Appeale An Appeale of Murther The yeare day houre time of the king and the towne materiall 78 The place where the fact was done 79 Count in an Appeale of death against three as principals The fact must be declared 80 Count in an Appeale of Robbery 81 Where in an appeale of Rape the Statute must be rehearsed in the Count and where not 82 Defence in an Appeale 83 Pleas to the Writ in Appeale 84 The forme of the Writ in an Appeale of Rape This word Rapuit materiall 85 Not two Appeales for one offence 86 Pleading of one in an Appeale brought against two 87 The plaintife in an Appeale misnamed 88 Two or three pleas to the Writ 89 Barres in Appeale Barre in Appeale of death brought by the wife 90 Barre in Appeale of death brought by the heire 91 Barre in Appeale of Rape or Robberie 92 Generall pleas in barre in Appeale 93 Barre for that the plaintife brought another Appeale 94 Barre by the plaintifes release 95 Pleading not guilty after other pleas 96 Where the king may prosecute an Appeale begun 97 No Appeale of Treason Indictments Fol. 169. 1 Commissions to Sherifes to take Indictments 2 When the Sherife shall hold his Turne An Indictment found in an vnlawfull time 3 Sherifes shall enquire by xij men at the least 4 Indictment before the Sherife shall bee by Roll indented 5 Of what sufficiencie Iurors returned in the Sherifes Turne shall be 6 Indictments taken in the Shirifes Turne shal be deliuered to the Iustices of Peace 7 Iurors in Indictments shal be returned without the denomination of any 8 Pannels for Indictments may be reformed by the Iustices 9 An Enquest to inquire of the concealement of other Enquests 10 In what case indictment and triall shall bee where the King will 11 Indictments and Trials of Treason committed out of the Realme 12 Indictment in the county of Lancaster of a forrainer 13 Indictment of a Lancashire man in a forraine County 14 Indictment for the striking or poisoning of a man in one coūtie who dieth in another Indictment of an accessary to an offence committed in another County 15 Indictments lacking these words Insidiatores viarum depopulatores agrorum 16 Words not necessary in Indictments 17 No more shall be in an Indictment then is true Felonicè or Piraticè in an Indictment 18 Where a verdict in an action of Trespas shall be an Indictment of Felony 19 The Sherifes returne is no Indictment 20 The yeare day and place necessary in an Indictment 21 An Indictment must be certaine in the matter 22 An Indictment must be certaine in the persons receiued 23 An Indictment vncertaine at what Court 24 Indictment for making of money 25 Indictment of a common theefe Indictment of the Ordinarie 26 The foresaid A. in an Indictment where none is before named 27 Indictment for the killing of a man vnknowne Indictment for the stealing of the goods of a man vnknowne 28 Indictment for the stealing of the goods of a Church or Chappell 29 An Indictment depending vpon an argument or implication 30 In an Indictment furatus est without felonicè or in Rape carnaliter cognouit without rapuit 31 An Indictment before Iustices of Peace 32 An Indictment before the Maior of London vpon sight of the body 33 Indictment of the receit of a Felon as accessarie 34 Indictment of the receit of the goods stolne and of the Felon 35 Indictments void for one purpose will serue for another 36 A prisoner discharged and after retained in prison 37 The difference between an Appeale and Indictment 38 Pleading another time acquit of the same Felony 39 Indictment of the death of a man knowne by two surnames 40 Indicted of the same mans death 41 Indicted in two counties of one offence 42 Arraigned vpon an insufficient Indictment or Appeale 43 Acquit vpon an erronious Appeale 44 Acquit vpon an Appeale brought by one that hath no right 45 Arraigned vpon an Indictment before the parties Appeale be determined 46 Acquit by battaile in an Appeale 47 A Murtherer indicted and arraigned at the Kings suit Another time acquit no plea in an Appeale but in an Indictment 48 No Indictment of Robberie vntill the Appeale bee tried 49 Pleading another time conuict of the same Felony 50 Another time attainted of the same Felony 51 The Kings Pardon obiected against the plea of another time attainted 52 Who is said attainted and who conuict of Felony Mainprise and Baile Fol. 180. 1 In what cases a prisoner is mainpernable in what not 2 The principall in Appeale of death not mainpernable 3 Where the principall let to mainprise 4 Pleading
shal be allowed but once 6 Killing a man by chaunce or in his owne defence Committing of petite Larcenie 7 Offendors in Treason 8 Confession of the Felony 9 Clergie taken away by Statute A Cutpurse 10 Forging of Writings 11 A committer of Buggerie 12 Counterfeiting to be Egiptians 13 Relieuing of a Iesuit or a Priest 14 Committers of Rape or Burglary 15 Taking a woman against her will 16 Practising of Coniuration or Witchcraft 17 Stabbing or thrusting to death 18 A Recusant not abiuring or returning 19 Abiuration of a Popish Recusant 20 A Souldier departing from his Captaine 21 Wandering Souldiers and Mariners 22 Taking away any person in Cumberland 23 Committing of Murther Poyson Burglarie 24 Stealing of a Horse 25 Stealing of goods in one Countie and carrying them into another 26 Robbing of houses booths tents 27 Robbing of a house in the day 28 Commandement or counsell of Felony 29 A Lord of the parliament shall haue the benefite of his Clergie 30 The Indictment must be according to the Statute The words of the Indictment must be proued 31 When Clergie shall be demaunded Clergie demaunded before verdict 32 Denying to be a Clarke and yet is Whether Clergie be allowable without request 33 Who shal allow of Clergy 34 A Felon readeth vnder the Gallowes 35 To what vse the Ordinarie is imployed Clerkes within orders shall be vsed as others be 36 What is reading as a Clerke 37 The Ordinaries attendance requisit Contention who is Ordinarie 38 A Priest shall haue no fetters 39 Bigamus shall haue his Clergie 40 Another time conuict How the conuict shall be marked How offendors within orders shal be vsed 41 Certificat into the K. Bench of Outlawries Attainders and Conuictions 42 A Clarke deliuered to the Ordinarie Clergy allowed without deliuery to the Ordinary The Kings Pardon Fol. 218. 1 The Kings oath at his Coronation touching pardons 2 None but the King can pardon Felonies 3 In what cases the King may graunt pardon 4 Non obstante in a pardon The Suggestion shall bee comprised in the pardon 5 The offences shal be specified in the pardon 6 Suit for an approuers pardon 7 Pardon of the Felony but not of the attainder 8 Pardon of the attainder but not of the Felony 9 A ioynt pardon to two or three 10 A graunt to be quit of escapes of Felony 11 A generall pardon by Parliament 12 The Kings pardon must be shewed vnder Seale A writ of the allowance of the Kings pardon 13 He that hath a Pardon shall find sureties of his good abearing 14 The good behauior broken after pardon 15 A Charter of Pardon must agree with the indictment 16 The pardon and allowance entred vpon the appeale 17 The Kings pardon in plea in appeale 18 Vpon a Pardon a Scire facias awarded against an Appellant 19 Nonsute doth not aid an appellee that is outlawed 20 The Kings Protection 21 Pardon of a Felony before it be committed Standing mute or answering indirectly Fol. 222. 1 Standing mute whereupon paine fort dure doth ensue 2 Felons refusing lawfull triall 3 Pennance onely vpon an Indictment 4 Pennance for Pyracie 5 No pennance for High Treason 6 No pennance for a man before attainted 7 Standing mute after coÌ„fession 8 Inquire of him that standeth mute 9 The iudgement in pennance Judgement and Execution Fol. 224. 1 Iudgement where the prisoner is acquited 2 The iudgement of a man attainted of high Treason 3 The iudgement of a woman attainted of Treason 4 The iudgement of a man attainted of petit Treason 5 The iudgement of a woman attainted of Felony 6 The iudgement in misprision of Treason 7 Attainder of Treason by the common Law 8 The iudgement of pennance viz. of paine for t dure 9 Iudgement in Felony by Iustices of Nisi prius 10 Iudgement by new Iustices 11 Iudgement in petit Larcenie 12 The staying of a womans execution being with child 13 A man hanged falleth down before he be dead Forfeiture Fol. 226. 1 A Felon shall forfeit lands and goods 2 Forfeiture of goods Flying for the Felony 3 The Accessarie fled for the Felony 4 Forfeiture for petite Larcenie 5 Forfeiture for flying before arrest Forfeiture without Attainder 6 Forfeiture vpon the exigent awarded 7 No forfeiture to the accessarie vntill the principall be attainted 8 Forâ—eiture notwithstanding apparance and pleading 9 Forfeiture of a Clarke conuict Of him that committeth Homicide by misaduenture Of him that killeth in his owne defence Of Felo de se Of him that doth stand mute 10 Forfeiture of a right or action No payment of Attainteds debts 11 Forfeiting of goods wherin the offendor hath no propertie 12 A Felon attainted at the suit of one where moe were to sue 13 Forfeiture of other mens goods and his owne 14 The forfeiture where a woman killeth her husband 15 An Executor shall not forfeit his Testators goods 16 The forfeiture of goods holden ioyntly 17 Confiscation of goods Confiscation of his own goods by disclaymer 18 Confiscation by disclaimer in the goods of others 19 Confiscation of goods left out of an Appeale 20 Confiscation of goods by a false Appeale 21 A Waife and the seising thereof 22 The owner seiseth his goods waiued 23 Sildome waife but of stoln goods When waife of goods not stolne 24 No waife of goods stolne from an alien 25 Forfeiture of lands Tenant for yeares Tenant for life or in taile Tenant in the right of his wife or Church 26 Forfeiture of Landes intailed 27 The forfeiture of landes in fee simple The forfeiture of an Annuitie 28 The forfeiture of Title to land 29 The forfeiture of Euidence 30 Forfeiture without attainder 31 Forfeiture of the yeare day and wast 32 By what meanes the King came by the yeare day and wast 33 The yeare day and wast of lands of what title shall be forfeit 34 No yeare day and wast of lands holden by ioint purchase 35 Whether any Forfeiture shall bee made by Tenant in taile A Disseisor Tenant in fee farme A Mortgage 36 Forfeiture of tenant in auncient demesne 37 The yeare day and wast forfeited without attainder 38 No yeare day and wast of a Clarke conuict Lands of small value 39 When the king shall haue the yeare day and wast 40 The yeare day and wast not grauntable from the Crowne 41 What goods of Felons the king shall haue 42 From what time the forfeiture of lands shall haue relation 43 From what time the forfeiture of goods shall haue relation 44 who shall seise and keepe Felons goods and when 45 The goods of an offendor shall not bee seised vntill he be attainted 46 Who shall haue the custody of Felons goods 47 To whom the forfeiture of lands of a person attainted of high Treason shall accrue 48 Who shall haue the forfeiture in petite Treason and Felonie 49 The Lords remedy for lands escheated vnto him 50 The heires remedie for lands escheated vnto his auncestor 51 Where the
Lord shall haue a Writ of Escheat and where he may enter 52 The forme of a Writ of Escheat 53 The kings remedy for lands escheated vnto him An office for those lands which doe escheat for Felony 54 The wiues forfeiture of title of Dower 55 What the appellee that wageth battell shall forfeit 56 A Rent-charge pro consilio not forfeited 57 The forfeitures of an outlaw Corruption of Blood Fol. 239. 1 Corruption of Blood salued by Parliament only 2 Where corruption of blood shall preiudice tenant by the courtesie 3 The eldest sonne attainted during his fathers life 4 Where attainder but no corruption of blood Restitution of stolne goods Fol. 240. 1 Restitution of goods vpon Fresh suit 2 What conuiction shal be sufficient to giue the owner restitution of his goods 3 Where the owner shall haue restitution 4 Before whom and by whom inquirie of Fresh suit is to bee made 5 Restitution vpon attainder by indictment Damages in Appeale Fol. 242. 1 The punishment of the appellant and the abettors when the appellee is acquit No Essoine for the appellant in an appeale of death 2 The appeale must bee commenced vpon malice 3 The statute of 13. Ed. 1. extendeth to all Felons 4 The defendant in an appeale acquited by battell 5 Where the accessarie in an Appeale shall recouer dammages 6 Where the defendant is said to acquit himselfe in due manner and where not 7 Acquitall at the Kings suit is only in appeale 8 What Iustices may inflict the penaltie vpon the Appellant 9 The dammages for seuerall persons assessed seuerally 10 Where the appellant shall pay a fine to the king 11 In what cases inquiry shall be made for the abettors 12 What pleas the abettors may plead 13 Proces against the abettors Nonsute in the proces against the abettors 14 A writ against the abettors by the appellee 15 Procurers of indictments for suits in spirituall courts A Writ of Conspiracie Fol. 245. 1 In what case a Writ of Conspiracie doth lye 2 Conspiracie maintenable vpon an acquitall in an indictment or appeale 3 The indictment must be false which giueth the Writ of Conspiracie 4 Conspiracie doubtfull whether true or false 5 The conspirators do become indictors A Iustice of Peace A giuer of Euidence 6 Who be conspirators 7 A Conspiracie must bee by more then one Where only one shal be charged in Conspiracie 8 No Writ of Conspiracie against the Husband and the Wife 9 The forme of the Writ of Conspiracie 10 The writ of Conspiracy for the accessarie 11 Barres in a writ of Conspiracie 12 Iudgement in Conspiracie A villanous iudgement 13 Inquiry of Conspiracie by Iustices 14 Inquiry of Conspirators at the kings or parties suit 15 Procurers of an indictment or an appeale in a forraine county 16 An offence supposed to bee done in a place where there is none such The Coroner and his authoritie and dutie in Felonies c. Fol. 249. 1 The office and duty of a Coroner 2 The Writ de Coronatore Eligendo 3 Who shall be Coroners and by whom they shal be chosen 4 Whether Coroners ought to be knights 5 Causes to remoue a Coroner 6 Where a Coroner shall haue fee and where not 7 What things Coroners shall inquire of 8 A Coroner shall execute his Office in his owne person A Câ—â—oner shall see the dead body A body buried taken vp againe 9 A Coroner must presently doe his office 10 A Coroner shall onely enquire of the death of a man A man slaine in an arme of the Sea A Coroner concealing or not apprehending a Felon 11 The force of a Coroners Record Which Coroners Record shall be preferred Abiuring before the Coroner Confession of breaking of Prison before the Coroner 12 Who ought to appeare vpon the Coroners Inquisition 13 The Coronour with the Sherife may take Appeales 14 Stopping vp of a place of daunger by the Coroners commaundement 15 Where the presence of all the Coroners is requisite and where but some one of them 16 The Coroner must record the euidence and bind the party to giue it 17 Inquiry of a man slaine within the Kings House and Verge 18 One man Coroner of the Kinges House and the Countie Who shall be Judge in Treason and Felony Fol. 253. 1 The King ought not to bee iudge in Treason or Felony What men of condition Iudges ought to be 2 None shall make Iudges but the King 3 Iudges vpon the arraignement of the Peeres of the Realme 4 Iudges of offences that are done in the Kings Pallace 5 Iudges of Conspiracies made to destroy the King or any Lord c. 6 Iudges within the Verge 7 Iudges of Treason committed out of the Realme 8 Iustices of Gaole deliuerie Iudges in Felony 9 Iudges of Nisi prius Iudges in Felony c. 10 Speciall commissioners Iudges at the arraignement of a Murderer 11 Iudges of piracie or offences done vpon the sea 12 Iustices of Peace Iudges in Felony 13 The Lord of a Mannour Iudge in Felony Infangtheefe Outfangtheefe 14 A Felon first executed and then iudged FINIS
the appeale be fresh and the signe of truth apparant by effusion of blood or an open outcrie leuied But if it be without any manifest token or outcrie two pledges shall suffice Within what time an appeale shal be commenced 33 The before mentioned Statute of Gloucester hath ordained St. 6. Ed. 1. 9 That an appeale shall not be abated for default of fresh sute where a man doth sue within a yéere and a day after the déede done These words of the Statute be generall not making mention more of an appeale of death than of an appeale of any other felonie But yet conferring them with the other words in the statute they may be intended specialy to extend to an appeale of death and to none other appeale for if a man that is robbed doth make fresh sute 7. H. 4 44. and doe his endeuour to apprehend the felon and vse all his diligence to find him although he doe not commence his appeale two or thrée yeares after the robberie committed yet he may then well pursue it And so in appeale of robberie fresh sute shall be decided by the discretion of the Iustices H. 22. Ed. 4 39. But in an appeale of death it is a good plea for the Defendant to pleade that he of whose death this appeale is pursued died aboue a yeare and a day before the said appeale commenced 34 The words of the foresaid Statute of Gloucester be St. 6. Ed. 1. 9 That a man shall pursue his Appeale within a yeare and day after the déed done From what time the yeare shal haue relation touching an appeale And therefore if one man doe strike another vpon one day and he dieth of the same stroake certaine daies after Co. l. 4. 42 the Appeale shal be commenced within the yeare and day after the death and not within the yeare and day after the stroake giuen for there was no felonie committed vntill the man was dead But yet if one mā doe giue to another a mortall wound in Februarie and the king doth in April next giue pardon to the offendor of all felonies before that time committed Plo. com f. 401 and the partie stricken doth die of the same wound in May following How the K. pardon shal haue relation this pardon shall discharge the offendor because the wound giuen by the offendor was the cause of the felonie the which wound was the offence towards the King and that the king hath pardoned and so thereby the death of the partie and all other things depending vpon the same offence be pardoned 35 Where the words of the Statute of Gloucester be The yere shall haue relation to that offēce That a man shall pursue his Appeale within a year and a day after the deed done St. 6. E. 1. 9. Those words viz. the déed done shal be intended of the felonie whereupon the appeale is commenced for if one be accessorie to another a yeare after the homicide or murder committed 26. Ass p. 52 an appeale shal be pursued against him and yet it is not within the yeare and day after the homicide or murder committed S. Br. 52. St. 3. E. 1. 13 36 It appeareth by Britton and also by the Statute of Westminster 1. that an appeale of Rape ought to be commenced within fourtie daies after the fact done Within what time an appeal of rape shal be commenced But then Rape was but a trespasse which after by the Statute of Westminster 2. was made felonie St. 13. E. 1. 34. In which Statute of Westminster 2. there is no time limited within the which a woman shal be compellable to pursue her Appeale of Rape And therefore it séemeth she is at libertie to bring it when she will so that it be within a reasonable time 18. Ed. 3. 32 37 An appeale ought to be brought in the Countie where the felonie was committed as if it be murder or homicide In what countie an appeale shal be brought where the same murder or homicide was done But if a man be striken in one county and then goeth into another countie and there dieth of the same wound by the common law an appeale may be commenced either in the countie where the stroake was giuen A man strickē in one countie dieth in another or in the countie where the partie stricken did after die and the trial thereof shal be by the Iurors of both the counties 3. H. 7. 12. 4. H. 7. 18. viz. as well of the countie where he was stricken as of the countie where he died And so it was at the plaintifes pleasure to bring his appeale in which of those two coūties he would But since by the Statutes of Anno 2. 3. E. 6. St. 2. 3. E. 6. 24. it is ordained That where any person shal be feloniously stricken or poisoned in one countie and die of the same stroake or poysoning in another countie then an indictment thereof found by Iurors of the countie where the death shall happen whether it be found before the Coroner vpon the sight of such dead bodie or before the Iustices of peace or other Iustices or Commissioners which shall haue authoritie to enquire of such offences shal be as good in law as if the stroake or poysoning had béene committed in the same countie where the partie shall die or where such inditement shal be found And such party to whom appeale of murder shal be giuen by the law may commence take and sue Appeale of murder in the same countie where the partie so feloniously stricken or poysoned shall die as well against the principal and principals as against euery accessorie to the same offences in whatsoeuer countie or place the accessorie shal be guiltie to the same And the Iustices before whom any such appeale shall be commenced sued and taken within the yeare and day after such murder manslaughter committed shall procéede against euery such accessorie in the same countie where such appeale shal be so taken in like manner and forme as if the same offence of accessorie had beene committed in the same countie where such appeale shal be so taken as well by the triall of the Iurors of the countie where such appeale shal be taken vpon the plea of not guiltie pleaded by such offendor Accessories in other offences sauing murder as otherwise But note that no Appeale is giuen by this Statute Stamford nor remedie prouided against accessories in a forreine countie of other felonies sauing for murder or manslaughter but the same is left to the common law In what coūtie an appeale of Rape shall be brought 38 An appeale of Rape ought to be brought in the countie where the Rauishment was done And therefore if a man doe take a woman against her will in one countie and then carrie her into another countie and there doe rauish her the appeale shal be onely commenced in the