default passed against an Ideot but execucion of the iudgement was stayed because of the kynges possessiō which proues that notwithstanding the kinge haue the possession durynge the Ideots life yet his highnes hathe noe freehold therby but onely a bare custody for the freeholde remaines in the heire And therewythe agrees 17 Edwarde the thirde H. 17. E. 3. 11 But what than this recouerye is not lyke to this alyenacion for by the recouerye the Ideottes heire is not dysherited by thact of his auncestoure yf so bee that the recouerye weare vppon a good title And it appeares in .33 P. 33. H. 6. f Henrye sixte that an Ideot shall not bee receaued to pleade by gardeyne or Procheyne amye but he hym selfe shall appeare in proper persone in euerye accyon broughte agaynste hym and whosoeuer wyll pleade beste for hym shall bee admytted and learne and enquire yf the Ideot bee but tenaunte for terme of lyfe or yeares yf the kynge shall haue hys prerogatiue therein or not beecause the Ideot cannot alien that lande to the disherison of hys heire and yf hee shall howe the lessour shall ponishe the waste doone in the kynges tyme. And learne allso whether the kynge shall haue the goodes of an Ideot as wel as lande thenne laste of all yf one bee founde Ideot whiche is none in deede The manner howe hee shall auoyde this office appeares in the newe Natura breuium folio 233 that is to saye hee that is falslye founde to bee an Ideot eyther by him selfe or his frinds shall come in to the chaūcerye or beefore the chauncelloure of Englande and the kynges counsell and praye to bee examyned of hys ideocye or hee maye sue a writte out of the chauncerye to hym that hathe the keepynge of hym to brynge hym beefore the kynge and hys counsell to be examined and if he be found vpon hys examination to be noe Ideot then by that is thoffice and all the reste of the proces auoyded wythoute anye farther trauerse howebeit where a Scire facias is awarded agaynste the feffee of the Ideot there the feffee appearing vppon the Scire facias maye trauerse the Ideocye as it appeares he dyd in the booke before of .18 Edward the third And note that by a statut made in the .32 of Henry the eight the xlvi chapiter Ideottes and theire landes bee in the surueye of the courte of wardes and the same courte maye let and set theire landes but not to graunt the custody of their bodyes for anye woordes that I can perceaue in the same statute The tenthe chapiter ITem rex prouidebit quando aliquis qui prius habuerit memoriam intellectum non fuerit compos mentis sue sicut quidam sunt per lucida interualla quod terre et tenementa eiusdem saluo custodiantur sine vasto destructione qd ' ipse familia sua de exitibus eorundem viuant sustineantur competenter residuum vltra sustentacionem eorundem rationabiliter custodiatur ad opus ipsorum liberand ' eisdem quando memoriam recuperauerint ita qd ' predicta terre et tenementa infra predictum tempus nullatenus alienentur nec rex aliquid de exitibus percipiat ad opus suum Et si obierit in tali statu tunc illud residuum distribuatur pro anima eiusdem per consilium ordinarij It appearethe bye Bracton in hys fifthe booke amonge thexceptions to the persone of the playnetyfe that it is a good exception to saye that hee that ys demaundaunt or plainetife is of Non sane memorie For these bee hys woordes Competit etiam tenenti exceptio peremptoria ex persona petentis si petens furiosus fuerit vel non sane mentis quod discere nesciat vel quod omnino nullam habeant discretionem tales non multum distant a brutis que ratione carent nec valet quod cum talibus agitur du rante furore Possunt enim quidam aliquando dilucidis gau dere interuallis quidam habent furorem perpetuum quod autem actum fuerit cum talibus tempore quo dilucidis gaudent interuallis ratum erit ac si cum alijs ageretur siue furorem suū simulauerint siue nō acquirere quidem non poterunt in ipso furore vel cum non fuerint sane mentis aliqui qui consentire non possunt nec adquisita alienare vel dare quia alienacioni non magis consentire possuut quam adquitsiioni sed seisinam retinent quia animum mutare non possunt quē acquirendo cum essēt sane mentis habuerunt furor superueniens nichil adimit non maius quam morbus incurabilis sicut lepra secundum quod dicitur quod multa impediunt contrahendo que non dirimunt contractum ita sunt multa que impediunt promotionem que non deiciuntiam promotum Et talibus de necessitate dandus est tutor vel curator So it appearethe by Bracton that in his tyme yt was thought◠expediente that folkes that weare destraughte shoulde haue a tutoure or one that shoulde take the charge of them whyche offyce sens is reuolued vnto the kynge and made parcell of his prerogatiue For as Fitsherbert in hys Natura breuium folio 252. verye well sayethe The kynge ys the protectoure of all hys subiectes and of all theire goodes landes and tenementes and therefore of suche as cannot gouerne them selues nor order theire landes and tenementes hys grace as a father muste take vppon hym to prouyde for them that theye them selues and theire thinges maye bee preserued And beecause that Lunacye or madnes ys not frome the tyme of ones byrthe as Ideocye is M. 3. E. 2. in Fits ti Gard P. 5. butte commeth sometymes bys fytes or courses hys grace therefore can clayme no certayne intereste in the lunatike persone lyke as hee maye doe in the Ideot and therefore it ys ordeyned that his booke f. 27. which nowe this statut hath made clere and without question The twelfthe chapiter ITem habebit escaet ' de terris Normanorū cuiuscūque feo di fuerint saluo seruicio quod pertinet ad capitales dominos feodi illius et hoc similiter intelligendum est si aliqua hereditas descendat alicui nato in partibus transmarinis cuius antecessores fuerunt ad fidem regis Francie de tempore regis Iohannis non ad fidē regis Angliae sicut con tingit de baronia Monumete postmortē Iohannis de Monumeta cuius heredes fuerūt de Britan̄ alibi de feodis aliorū recuperauerit Henricus plures escaetas de terris Normānorū occasione predicta eas contulit tenēdas de capitalibus do minis feodi per seruitia inde debita consueta It Appereth by the Cronicles that king Ihon was the last duke of Normandie that in his time Normandy was lost wherupon king Henry his sonne as it may appeare by the later clause of this chapiter recouered diuers escheates of lande within
firste chapter Also Britton an other old wryter which wrote hys booke in king Edwarde the first name sayeth des heirs nequedent si ils y eyent ascuns qui auncestre morust seisie de ascun terre tenu de nous en chief des aunciens demeanes de nostre corone volons auer les gardes de touts les terres dōt appent que deiuent descend a ceux heirs come lour heritage ouesque touts les blees en teles terres troues maintefoits de qui fees que les terres sont Britton here not only agreeth with the other but also geueth the king the corne growing vpon the groundes which the kinges tenant holdeth at the tyme of his death A. 21. H. 3. in Fitz. ti Prerogat ' P. 26. P. 25. Also in the great Abridgement of Fitzherbert you shal find in the time of king Henry the thirde written in this manner Nota quod lex angliae et consuetudo eiusdē est quod a quibuscunque aliquis feoffatus fuerit dum tamen a domino Rege aliquo tempore fcoffatus fuerit per tenementum qd ' tenetur per seruic̄ militare quod dn̄s rex habebit custod ' omniū terrar ' et tenemētorū tā de feoffamēto aliorū quā de feoffamento proprio Which text if a man will any thing wrest he may make the kinges prerogatiue more lyberall then is made or declared by this statute or any other the writters before remembred for it extendes to any landes holden of the king by knightes seruice whether they be holden of the king in capite or not but forasmuche as the saide other writers haue written so plainlye in this matter we will stand to them and extende the prerogatiue no further howbeit as I saide all those writters being so longe before the making of this statute doe plainly argue proue that this statute dothe but confirme and declare that that was the commen law before M 15. E 4.12 vnles we woulde doubt of the time of the making thereof as Littleton doth in 15. E. 4. but without doubt it was made in king Edward the secondes time and that plainlye appeareth by the woordes contayned in the third chapter of this prerogatiue which be these Et illa voluntas tempore Regis H. patris Regis E. estimari consueuit c. Which woordes were not written in kinge Edward the first daies for then the woords had bene patris nostri so that as I thinke it is not to bee doubted but that it was written in the time aboue limitted and expressed Then go wee to thexposicion of this first chapiter of prerogatiue The woords be dominus rex habebit custodiam omnium terrarum eorum qui de ipso tenent in capite per seruicium militare These woordes go generally to all the kings tenauntes that is to saye aswell to his tenantes for terme of lyfe as to his tenauntes of estate of enheritaunce if it so be that he that is in the reuercion haue the saide reuercion by discent and be heir vnto the said tenant for terme of life not forcing whether he haue the reuercion by discent from the said tenaunt for terme of life or else from any other ancestour as take the case to be this a man holdeth no landes of the kinge but onely as tenaunt by the curtesie and those landes are holden in chiefe by knightes seruice the saide tenaunt by the curtesie is seased in his demesne as of fee of landes holden of other lordes and dieth the landes holden of other discend vnto him in the reuertion whiche is indede nexte heire vnto the said tenant by the curtesie in this case the king shall not onely haue the wardship of the landes that were holden by the curtesie if the saide heire be wythin age but also the landes holden of other by vertue of thys prerogatiue And if the saide heire were of full age at the tyme of the deathe of the saide tenaunt by the curtesie the king shall haue primer season both of the one lande and of the other as it appeareth in the newe Natura breuiū fo 298. Like lawe is it if a woman be indowed of lands holden in capite and is seased in fee simple of landes holden of other and dieth seased and they discende vnto the heire whiche is in the reuercion in this case the kinge shal haue bothe these landes by vertue of this prerogatiue like as hee shall haue in the other case before 26. li. ass p. 57 and that maye you see in 26. li. ass for in bothe these cases they bee the kinges tenauntes and hold of him by knightes seruice in capite for tenaunt en dower in the kinges cas holdeth not of the heire but onelye of the kinge as it shal appeare more fully hereafter But if he in the reuercion bee not heire of the landes holden of other in the cases aboue remēbred otherwise it is But what if he in the reuercion haue the same reuercion by purchace and not by discent whether shall the king then haue his prerogatiue or not and as to that it shoulde seeme by the newe Natura breuium fo 259. that the kinge shall haue his prerogatiue in that case also for there the remainder was to the heire and to his wife and to the heires of theire two bodyes lawfully begotten and the husbande in the remainder dyd sue liuere howbeit against the law as me semeth ideo quere but if the case in the saide newe Natura breuium had been that landes holden by knightes seruice in capite had beene geuen to one for terme of his lyfe the remainder ouer in fee which parson in the remainder hath issue and dyeth and tenaunt for terme of lyfe holdeth landes of other Lordes and dyeth whiche discende to the issue that is in the remainder there it might be saide that the king shoulde haue prerogatiue in the whole like as he had in the cases before remembred of tenaunt by the curtesie and tenant in dower for like reason will serue in the one case that serueth in the other The woordes of the Statut be further de quibus ips◠tenētes fuerunt seisiti in dominico suo vt de feodo die quo obierunt de quocunque tenuerint These woordes rather apperteigne vntoo the landes holden of other then too the Landes holden of the Kinge in Capite as it shoulde appeare by the cases beefore remembred and then by these woordes the kinges tenaunt in his life tyme must himselfe bee seased either in possession or reuercion of those landes that hee holdeth of a common person that shall dyscende vnto his heire For if hee were neuer seased thereof but they discende vnto his heire from some other auncestor the king shall not haue his prerogatiue in them as appeareth in 15. 15. E. 4. f. 10. E. 4. but whether the kinges tenaunt were seased of them in his owne right or in another bodyes right it maketh no difference
as take the case he were seased of them but in right of his wife and hath issue and dyeth his issue is in the kinges warde for the lande that his father helde in Capite and afterwarde the wife dyeth the issue beynge still in warde the Kynge shall haue Prerogatiue in these landes of the wyfe also because the husband was seased of them in his demeane as of fee the daye of his deathe and so wythin the compasse of this statute And this case may you see in M. 13. H. 4. 6. 13. H. 4. and note that notwithstandinge this statute speaketh but of landes yet seruice are to bee taken by the equitie of the same as it is plainlye proued by the woordes of Diem clausit extremum which saieth Quantum terre tenet de nobis aut de aliis tam in dominico quam in seruicio So that if one holde of the kinges tenaunt by certeine seruices the King shal haue the seruices in warde for they be in nature and place of the lande that is holden and so shall it bee supposed And therefore when the kinge hath those seruices in warde and the tenaunt that holdeth by those seruices diâ—th his heire within age if the saide seruices were knightes seruice the Kinge shall haue warde by reason of wardshippe But yet by that noe prerogatiue in the other landes of the second warde whiche are holden of the other Lordes M. 6. R. 2. in Fitz. ti Gard P. 105. as it may appeare in 6. R. 2. For the kinges tenant was neuer seased of those other landes ne yet of the seruice that they were holden by and so without the compasse of this prerogatiue Like lawe it is where the Kinge hath the temporaltie of a bishop in his custody duringe the tyme the Sea is vacant and one that holdeth of those temporalties by knightes seruice dieth his heir wtin age the king shal haue the wardship of him the reason of it is because the king hath the wardship of the teÌ„poralties by reasoÌ„ wherof this wardship cometh whiche temporalties the kinge hath in warde by the order of the common lawe in lure corone For they bee barronies which can be holden of none other then of the kinge in capite and then by the common lawe I take it he were no better then a common person yet his highnes must haue the wardshippe of them that holde of those temporalties by knightes seruice if they falle duringe the time the saied temporalties be in his hands with such landes as they holde of those temporalties but not with such lands as theye holde of other and than must the heire thereof when he coÌ„meth to his ful age sue a liuere as shalmore plainly appeare when we come to the thirde chapiter of this prerogatiue The wordes of the statute before resited are in dominico suo this woorde demeane is not here taken to bee the verie possession or takyng of the profits for if the kinges tenauÌ„t dye seased but of a reuercion or of a remaynder in landes holden of a common person and duringe the minoritye of his sonne the particuler tenaunte dyethe the kynge this notwithstanding shall haue this lande in warde as he hath the rest as it may appeare 22. H. 6.15 E. 4. 46. E. â— M. 22. H. 6. f 20 M. 15. E. 4. f. 10. P. 46. E. 3. fo 10. So it is if the kinges tenaunt dye seased of an aduowson appendaunt to landes holden of a common person The woordes be further die quo obierunt and therefore if the kinges tenaunt dye seased of Landes holden of a commen persone and a straunger abbatethe yet the heire shal bee in warde and the kyng maye entre and so is it if the heire recouer by assise of nâ—ortdauncestre as it appeareth in the newe Natura breuium fol. 2â—â— T. 12. R. 2. But take the case to bee that the kinges tenaunte dye not seased but is disseised and dyethe whether in this case the kynge maye haue prerogatyue or not and it semethe that hee may for in all suche cases where the heire hath a right of entre the kynge may entre in name of the heire and holde it afterwarde in warde but yf the heire haue but a title of entre or ryghte of accion it seemethe to be otherwise howebeit looke for those maâ—â—ers in the sayde booke of 15. E. 4. 12. H. 7. 18. Edwardi tertii lib. ass P. 18. T. 12. H. 7. fo 17. Where it is adiudged that of landes holden of the kynge in chiefe the kynge as in ryghte of hys warde myghte sease by a Scire facias vppon a tytle of entre And note also that there is somewhat more to bee vnderstanden beare thenne is wrytten or expressed that is to saye that the saide Landes muste discende too the kynges warde for notwythestandynge the kynges tenaunt weare seased in hys demeane as of fee daye of hys deathe in landes holden of a commen persone yet if the same after hys deathe doe not discende to the kynges warde but to an other heire M. 12. E. 4. f. 18. the kynge shall not haue prerogatiue in them as it appearethe in 12. Ed. 4. The woordes of the statut bee also De quocunque tenuerunt Put case the kinges tenaunte is seased of certayne thynges whyche neyther are holden of the kynge nor yet of anye other whether shall the kyng haue them in warde or not as Merket warrâ—n A. 3. H. 7. f. 4 21. H. 6. f. 12. 46. E. 3. f. 10. 15. E. 4. f. 12. Rente Secke or aduowson en grosse and as it should appeare in 46. E. 3. 21. H. 6. the kynge cannot haue them in warde and yet in 15. Ed. 4. soome holde oppinion to the contrarye therefore inquere and learne what the lawe wil in these cases The woordes of the statute bee Per huiusmodi seruicium that is to saye by lyke seruice Bye these woordes the landes that are holden of other muste bee holden allso by knyghtes seruice or els the statute extendes not to them and yet the lawe is taken to the contrarye for yf the lands holden of other bee holden but in socage or free burgage the kynge shal haue prerogatiue in them as it appearethe in P. 24. E. 3. f. 13. T. 9. H. 3. ti Prerogatiue in fits â— 25. 24. E. 3. for this statute is but a confirmacion of the common lawe and therefore shall bee taken by equities and namelye when the lawe was so taken in 9. H. 3 whiche was longe time beefore the makyng of this statut Howebeit Bracton and Britton dothe extende this prerogatiue no further then to landes holden of other by knightes seruice therefore enquire for the cause and reason thereof Bracton li. primo de custod et releuiis Britton f. The woordes bee further Exceptis feodis archiepi cantuar ' c. This exception extendes not to the bodie wherefore the kynge shall holde that in warde
againste al men but it extendes to suche landes as are holden of these persones exempted by this statut Put case then that anie of these persones pourchace a seignorie since the tyme of the makynge of this statute shall the kynge haue hys prerogatiue in the landes holden of that seignorie or not And it is clere he shal notwithstandynge the aforesayde woordes of exception for theye doe not extende but to suche fees as we are theyrs at the time of the makynge of this statut Then further for asmuche as there bee diuers statutes concernynge wardeshyppe made aswell beefore as since the time of kynge Edwarde the seconde let vs see whether this prerogatiue wyl extende to those statutes or not and it seemethe it dothe for asmuche as this prerogatiue hathe beene euer from the beginninge as I haue sayde before And therefore if the kynges tenaunte beeinge seased of landes holden of a common parson makethe a feffement therof by collusion contrarie is the statute of Marlebridge to defraude the lord of the wardshippe and diethe the king hauing his heire in warde this matter founde by office shall sease vpon a Scire facias if the collusion be auerrable or wtout a Scire facias if the collusioÌ„ be apparaunt hold the same in warde by force of this prerogatiue that appeareth in 9. H. 4. So likewise wher the statute made in 4. H. 7. T. 9. H. 4. f. 5 prouidethe that the heire cesty que vse shall bee in warde Put case that the kynges tenaunte in capite before the statute in Anno. 27. H. 8. had made a ferfement of lands which he holdethe of a common perâ—one to the vse of hymselfe his heires and died before that statute in this case the kinge shoulde haue hadde his prerogatiue in the Landes so beynge put in feoffament to an vse euen as if his tenaunt had died seased thereof T. 12. H. 7. fo 17. as it appearethe 12. H 7. Than last of all let vs learne howe the lordes whose fees the kynge hathe in warde by his prerogatiue shal be demeaned and ordered for the rentes to be dewe for their seignories duringe the wardshippe whether they shall leese them as they do the landes 29. lib. ass in fits ti Petic p. 5. P. 24. E. 3 f. â—â— and the new natura breuium fo 179. And it appeareth in the booke of assises in 29. E. 3. that they had them by peticion at the Kynges hands therwith agreeth thoppinion of Hill ' in the .24 yere of kyng E. 3. Learne the reason of these bokes for it should seme to me the lawe to be otherwise because that al mesne seignories are suspended duringe the time the kyng hathe the tenauncye in warde if it bee not per case for the surplusage of a rent seruice whiche the mesne maye sue for to the kynge by waye of peticion and to saye that the heire shal be charged at his full age withe the sayde rentes it weare noe reason for then bothe his lande shoulde bee in warde and yet he charged to pay rent for the same wherefore it semeth that these bokes are against the law And with me agreeth Bracton in his first boke in the chapiter de custodia where he saieth Et cum tali ratione sint aliorum feoda in manu do mini regis pred' ratione alij capitales domini feod ' illorum ni hil poterint exigere de terris et tenÌ„tis illis nec in seruic ' nomi nat ' nec in auxiliis ad filiam maritandam vel filium primoge nit ' militem facieÌ„duÌ„ vel in sectis quaÌ„diu terre fuerunt in manu domini regis sed precipiet ' vic' qd ' hmÌ„odi distringere non permittat Howebeit Bracton in his said booke in the chapiter De releuijs saieth that the heire at his full age shall pay his reliefe to euerie of his lordes notwithstanding he hathe ben in warde quod nota for in al other cases he neuer paiethe reliefe that is to saye where he hathe bene in ward and hee makethe no other reason for it butte this s. quod hoc est speciale in rege propter suum priuilegium and so is the booke in the .24 M. 39. E. 3. in Fits ti Relief P. 1. Britton f. 163. yeare of kynge Edwarde the thyrde and the .39 yeare of the same kynge howebeit Brittons oppinion is that the heire shall paye noe reliefe to the other lordes after hee hathe beene in the kynges warde and commethe to his full age and I cannot fynde that the heire in anye suche case shoulde or doothe paye anye reliefe to the kynge that is to saye where hee hathe beene in warde therefore learn what experience teacheth vs in these cases The seconde chapiter ITem Rex habebit maritagium hered ' infra etateÌ„ in custodia sua existenÌ„ siue terre hered ' eorundem sint ab antiquo de corona siue de eschaetis quae sunt in manu domini Regis siue habuerit maritagium ratione custod ' terrarum dnÌ„orum eorundem hered ' nullo habito respectu ad prior ' feoffamenti licet de alijs tenuerunt Bracton li. 1. ti de herede sockman in cuius custodia esse debe at BrittoÌ„ f. 163 M. 24. E. 3. f. 24. H. 12. H. 4. in fits ti Gard. P. 81. All that is contayned in this Chapiter was the kynges prerogatiue by the order of the common lawe as it maye appeare in the bokes of Bracton and Britton in the places before noted and in a boke in the 24. yeare of kyng Edward the thyrde where it is sayde that no lorde can be more auncienter than the kynge for all was in hym and came from hym at the begynninge And therefore his highnesse muste haue prerogatiue in the bodye of whosoeuer the infaunte holdeth besides bee it that the landes are holden of the kynges highnes as of the auncientnes of his Corone or of hys newe escheates or come vnto hym as warde by reason of wardshippe or that his highnesse doe pourchace the seignorie of hym that is lorde by posterioritie or pourchaseth a manor holden of one of his honors whiche are of his newe eschetes of whiche maner thauncester of thinfaunt helde by posterioritie in all these cases the kynge shall bee preferred to the wardeshippe of the bodye and mariage beefore anye other lorde of whom the auncester also helde them daye of his death by priority of feffement that is to saye more auncient feoffement howe be it in these cases hys highenesse shall not haue wardeshippe in the landes holden of thother lordes beecause his tenaunte helde not of hym in châ—efe but onelye shall haue preferrement in the body and mariage beefore all other Then since the common lawe and statute dothe geue the kinge this prerogatiue let vs see whether his highnesse maye by grauntinge away his seignorie to an other graunt also with the same his prerogatiue to the grauntee that is to
the deathe of his auncester bee not of the age of 35. H. 6. f. 47. T. 45. E. 3. fo 1â— 14. yeares as appearethe 35 H. 6. 45. Edwarde the third and allso in the newe Natura breuium fol. 2â—6 fol. 2â—â— But in euerye of these cases theye to whom the bodye belongeth shall haue an Ouster le main of the landes vna cum exitibus that ys to saye the lordes of whom the land is so holdeÌ„ by knights seruice in th one case and the Prochein amy in the other case But wher the landes bee holden of the kynge in Socage in capite the heire of the age of 14. yeares at the deathe of his auncester there the kyng shal haue primier seisin and the heirÌ„ dryuen to sue lyuerie for there is no persone that can make anye title to the heire or his landes but onelye the kynge and therefore the king must haue his primier seisin the heire driueÌ„ to sue his liuerie by expresse woords of the foresaid statut of Marlebridge so it seemeth also in that case that his highnes shall haue primier seisin in landes holden of other so they be holden but in Socage for the reasoÌ„ aboue remembred Tamen quere The woordes of the statute bee farther de omnibus terris et tenementis de quibus ipsi seisiti fuerunt in dominico suo vt de feodo These wordes may bee conferred and coupled with the firste chapiter of this statute of prerogatiue whiche hath the verye selfe same wordes And therefore looke in what cases noted vppon the firste chapiter the king hath his prerogatiue by reason of wardship In al the same cases shall his highnes haue prerogatiue by reason of primer seisin if the heire weare of full age at the deathe of his auncester Wherfore to reherce theÌ„ here particularly it were but superfluous except it bee in the case onely of collusion geuen by the statute of Marlebridge where the heyre is within age beecause it speaketh nothinge of the heire that is of full age And therefore in that case it seemes the kyng cannot haue lyke benefyte of primier seisin as hee hathe of wardeshippe when the heire is wythein age Howebeeit there is a booke in that pointe lefte at large whiche is 17. E. 3. 7. E. 3. there the case was M. 17. E. 3. f. 63. M. 7. E. 3. in Fits ti Relief p. 11. The tenaunte enfeffed his sonne and heire dyeth before the feffee gaue notice thereof to the lorde Ideo quere The woords of the statut be farther Cuiuscunque etatis heredes ipsorum fuerint To these woordes also shall the firste chapiter of this estatute haue relacion for they plainly declare that if the heire were within age at the deathe of his auncester the kyng shal haue primer seisin and the heire driuen to sue his lyuerie notwithstandinge also the kynge haue had the wardshippe of hym For the wordes be generally spoken and maye be extended aswell where hee was within age at the deathe of his auncester as where hee was of full age And so hathe it beene euer vsed sauinge that where hee hath been in ward hee payethe but one halfe yeares profite for primer seisin and in the other case hee payethe the hole The woordes of the statute bee farther capiendo omnes exitus eorundem terrarum tenementorum donec facta fuerit inquisitio pro ut moris est et ceperit homagium hered ' By these woordes it maye appeare that the kynge after the deathe of hys tenaunte and beefore anye office founde mighte seise the landes and take the profites whiche thinge surelye is true as plainelye is proued by the writte of Diem clausit extremum whiche hath these woords Cape in manum nostram omnia terras tenementa c. donec aliud inde perceperimus per sacrum proborum hominum diligenter inquiras c. So the seiser goethe before the inquisition howebeit since the statut made at Lincolne Anno. 29. E. 1 called statutuÌ„ de Escaetoribus it is not vsed to seise tyll office bee founde and then the kyng to bee aunswered of all the profites since hys tenaunts decease whiche commethe all to one effecte And that statute dothe not restrayne the seiser but that thercheator maye seise at this daye withoute office By the aforesaid statute of Marlebridge cap. 16. it is expounded and playnelye set foorthe of what lands and fees the kynge shall haue primer seisin for these bee the woordes Et hoc intelligatur de terris feodis que ratione seruicij militaris socagij vel seriaÌ„ciae sine iure patronatus in manibus domini regis esse coÌ„sueuerunt By these woordes it maye appeare that he that is warde beecause of wardeshyppe shall sue lyuerye or where one holdethe of the kynges warde by knyghtes seruice or in Socage and dyethe hys heire of full age the king shall haue primer seisin of the landes that are so holden of hys warde and the sayde seconde heire dryuen to doe hys homage or fealtye as the case shall require to the kynge and allso to paye hys reliefe vnto hym and to sue lyuerye of the sayde landes as it appearethe hee dyd in the newe Natura breuium fol. 294. 295. For it is withein the compas of these woordes que ratione seruitij militaris So ys it yf the kynge haue a Byshoppes temporalties in his hands duryng the time that See is vacant and one that holdeth of that temporalties by knyghtes seruice or in Socage dyethe hys heire wythein age in this case after that the kynge hathe hadde the wardeshippe the heire at his full age shal paye primer seisin and sue hys liuerye And so shall he doe yf hee bee of full age at the tyme of the death of hys auncester for the woordes of the statute bee De feodis quae iure patronatus in manibus domini regis esse consueuer ' and therwithe agreethe the newe Natura breuium folio 286. Butte learne yf the kings tenant in chiefe dye hys heire of full age and one that holdethe of the heire beefore hee hathe sued his lyuerie dyethe his heire allso beeynge of full age whether in thys case the kynge shall haue primer seisin of the landes of the seconde heire or noe as hee shoulde haue hadde yf the heire of his tenaunte hadde beene wythein age and in the kynges warde at the time when this seconde heire dyd falle and it seemethe to mee hee shall for the reason made afore Thanne laste of all whether this prerogatiue extende to anye statute made since the tyme of kynge Ed. 2. and it seemes it dothe and that for the reason noted in the first chapiter as the feffees of Cestuy que vse before the statut made in the .27 yere of kyng H. 8. vsed to sue an Ouster le mayn sine exitibus whiche was in nature of a lyuere for the heire of cestuy que vse which had bene inward Item for
19. E. 3. wher the said comittee came in 18. E. 3. fo 38. H. 8. E. 3. in Fitz ti Voucher P. 154. H. 19. E. 3. in Fitz Tit. Aid de Roy. 64. the heir being vouched in their ward showed how they held of the kinges lease praid in aid of the king had it wherat I do not a litle meruel because of this statute of Bigamis which was neuer spokeÌ„ of ne yet remembred in these bokes their iudgemeÌ„ts as it should seme beinge directlie against this statute Howbeit the maner of the lease doth not there certenlye apere that is to saie whether the wardship were granted Durante bene placito or Durante minore etate for that would make a differeÌ„ce as I haue said before Also the boke is 39. 39. E. 3. fo 10 E 3. where in a writ of Dovver brought against the comittee ther was aid graÌ„ted of the king but that semes to be out of the compas of the statute of Bigamis which spekes onelie of theÌ„ the haue it of the kinges graÌ„t so hath not the secoÌ„d Comittee therfore lerne what the law will in these cases But if the wardship be comitted to the wife wtout anie exception or forprise of her dower she by that is coÌ„cluded to claime ani dower during the said wardship as it may apere M. 2. H. 4 â–ª in the said new Natura breuium fo 2â—â— It is also said that where liuerie is made to the heier before the womaÌ„ sue for her dower in the chaÌ„cerie in the said liuerie there is no sauing made for her dower that theÌ„ she must pursue her writ of Dovver against the heir the reson that there made is beecause the king hath made liuerie generally wtout ani reseruacion of Dower to be assigned by his highnes whereunto I aunswer that wheÌ„ liuerie is sued before assignemeÌ„t of dower there is moste comoÌ„lie in the writs of liuerie a sauinge made for her dower if it so be that she were found the kings tenantes wife in thoffice and she beinge so founde if the heyr sue a general liuerye leuing out these wordes Salua dote or retenta dote c. it is a good cause for the kinge to resese the hole for the liuerie is missued in that case and that I learned of iustice Spilman which noted it so in .11 of H. 8. but if she be not found wife in the office the heire may sue his liuerie without anie such sauinge and to saie the the kinge by making such a liuerie should waiue the aduantage of his prerogatife in the dower that semes not to bee trew vnles the said waiuer were by expres wordes wherfore it semes the heir in that case after liuerie is not bound to yeld vnto her dower but her onlie remedie is to sue for the same to the king and that must be fyrst vpon an office as I think finding that she was his tenantes wife Ideo quere and learne whether she may haue dower in any case either in the chancerie or by writ of Dower at the comen lawe against the coÌ„mittee or the heire vnles she be found wife first by office as is aforesaid except it be in cases where the king will refuse this prerogatife And note that like as the kinge hath a prerogatife by this statute to yeld dower to the wife of his tenant so hath his highnes a prerogatife by the comoÌ„ law to withold dower from the wife of his tenant which no comon person hath As put case in a write of Dower the heir be vouched in the kinges warde and the tenaÌ„t showes for his lien the feffement with warranty of the husbande which is father to him that is vouched yet that notwithstaÌ„ding she shall recouer her dower against the tenant and not against the heir because that els the king should lose the wardship of the lands wher the womaÌ„ maie without her losse as well recouer her demaund against the tenaunt as she should against the kinge and yet if the king were a comon person in that case he should lose the wardship of so much as she demaundethe 26. E. 3. fol. 58 â–ª H. 8. E. 3. iÌ„ Fits ti Voucher P. 154. And this boke is .26 E. 3. wher it is said that the kinges comittee of the wardship shall not haue the prerogatife therew t agrees 8. E. 3. And note that like as the king hath prerogatife against the wife that bringeth the writ of Dovver so shall he haue prerogatife against the tenaunt in the saide writt of Dovver for notwithstanding that the tenant in the self saÌ„e case haue iudgemeÌ„ to recouer ouer in value against the heire which is in the kinges ward yet he shal haue no execucion of that recouerie til the land be sued out of the kinges handes Howbeit 27. E. 3. 27. E. 3. fo 87 is contrarie to the said boke of 26. E. 3. ideo quere And learne and enquire whether a womaÌ„ being thus endowed at the haÌ„ds of the feffee of her husband of such lands as he died not sesed of and wherof the king at that time can haue no wardship whether she maye marie or not without the kings license it semes she can not for anie wordes comprised within this statute And it apereth in the boke of Assises 26. E. 3. 26. li. Ass P. 57 that wher a woman was endowed by gardein in chiualrye and afterwards the garden committed treson wherbie the seignorie was forfet to the kinge that after this forfeiture she should hold of the kinge and not of the heir which was in the reuersion in which case then she can not mary without licence as me thinketh TheÌ„ further it is to be sene to what lands the statute dothe extend vnto and to what not It extendes to landes holden in capite wherof any woman claymeth dower as maie apere by the wordes of the saÌ„e statute and not to anie other lands for if the king haue in his custodie byshops temporalties during the tyme the Sea is vacant and one that holdeth of those temporalties by knightes seruice dieth his heir being within age whereby the kinge hath the wardship of his heir and eÌ„doweth his wife in this case she shall make no othe but maie marie without liceÌ„se Like lawe is it wher she is endowed of lands that are holdeÌ„ of him that is the kings highnes ward by reason of a tenure in Capite for in both these cases the land wherof dower is demaunded are not holdeÌ„ of the kinge in cheefe and this doth apere in the newe Natura breuium fo 264. and yet in both those cases she is endowed in the chauncerie but what is that to the purpose for so shall the heire in those cases sue liuerie of those lands and yet thei be neuer the more for the holden in chief but onely vsed for a solempnity becaus thei were in the kings hands once by office which is matter of
away all his purchased landes But of the lands of his inheritaunce he might giue away no more but a reasonable porcion And if the landes were departible amongest the heires males then might the father in his life time geeue euerye childe what porcion hee woulde so it exceded not the porcion that shoulde descend vnto him And in that case whether the gifte were of landes purthased or of inheritaunce it made no matter Howbeit neyther Abbot nor Bishop might iÌ„ any of these cases geue any porcion of their landes away without the kinges assent or his confirmacion because theire baronies bee of the almes of the king or of his progenitours Hitherto haue ye hearde what Glanuill hath saide After this was the Statute of Magna carta made where in the .31 chapter therof it is writen Nullus liber homo det de cetero ampliê° de terra sua vel vendat de cetero quam vt de residuo terre sue possit sufficienter fieri dnÌ„o feodi seruiciuÌ„ ei debituÌ„ quod pertinet ad feoduÌ„ illud Which statute is but a confirmacion of the comon law as it doth appere by that that is written in Glanuil for so one that had helde by knight seruice if he might haue beene suffred to alien the greatest part of his land he would haue aliened the same peraduenture to hold of him but in Socage or by some smal rent than hauing so little a liuelyhod left to himselfe how had he bene then able to haue done the seruice of a knight or a man of warre or what should his lord haue had in ward to haue founde one to haue done that seruice surely little or nothing Wherby the strength of the Realme might haue much decayed therfore it was a reasonable law to restrain him as me semeth Howbeit Bracton in his first booke vnder the title Si ille cui datuÌ„ est rem datam vlterius alteri dare possit disputes this matter after a sorte that is to say whether the tenant may enfeffe an other agaist the lords will or not he there affirmes he may yea that to hold of him by what seruice he will calleth it DamnuÌ„ absque iniuria seing that though the wardship be not so good after alienacion to the chief lord as it was before yet the relief is as good in euery point then if the lord be serued either of the wardship or reliefe he hath all that knightes seruice requireth Howbeit saith he when the tenant is so disposed to sell his land the lorde shal bee preferred to the sale therof before a stranger geuing as muche as an other will It semeth by Bracton that it was verie doubtfull notwithstanding the statut of Magna carta whither the kings tenaÌ„t might alien his whole tenancy or not And therefore was the statute of Quia emptores terr' made where it is prouyded that from thenceforth which is in the .18 yere of kinge E. the first after Bractons tyme it should be lawful for euery fre man to sell his landes or tenementes or any parte therof at his pleasure to holde of the chiefe lorde by the same seruice that the feffour helde Prouided alwaies that by anye suche sales there comes no landes to Mortmaine This statut remedies the mischief that was founde in the wardship but not the other mischiefe that is to saie touching the defence of the realme For when one mans lyuinge is so dismembred neuer a one of them is able to doe the seruice of a man for want of lyuehoâ—e Yea and much more vnabler since this Statute then before For before where he gaue it to hold of himself he reserued somewhat in place of the lande that went from him where as now he can reserue nothing of comen right Howbeit notwithstanding that this statute of Quia emptores terraruÌ„ made it lawfull for all other mens tenauntes Yet was it not lawfull by the said statute for the kings tenants so to doe that is to saye neither to alien the whole nor any parcel therof without the kinges licence And that appereth by Bracton fo 88. Which speakes generally that the kings tenantes in chief cannot dismember his fees wtout his licence And because that before the time of king Edw. the firste they might haue aliened without licence to holde of themselfes as other mens tenauntes might haue done in the like case thinking it more lawful for them so to doe after the making of the said statut of Quia emptores thaÌ„ before it was thought good to prouide some stay for the same by this statut of Prerogatiue And yet by the woordes of the other chapter folowing it appereth that the kings tenant by grand serieantie could neuer haue aliened any lands holden by grand seriantie wtout the kings lyceÌ„ce For that was so high a seruice as Bracton in his first booke in the title de magnis seriaÌ„ciis names it Regale seruicium saith it was first inuented wtin this realme in the time of the Conquest that they coulde not dismember any parte therof without the kinges lycence For he saith in another place in the said booke amongest his writes of particion Quod seriantia diuidi non debet ne cogatur Rex accipere seruiciuÌ„ suuÌ„ per particulas Howbeit since the makinge of this statut of Prerogatiue sundry opinions haue risen in these matters as may appere by the statut made in the firste yere of king E. 3. ca. 12. Which saith in this maner Item pur ceo que plusours gents du Realme soy pleinont deste greues de ceo que terres et tenemÌ„ts que sont tenus en chiefe du roy et aliens sans son conge ount este pris auaunt ceux heures en mains le roy et tenus come forfets le roy ne les teigne my coÌ„e forfets en tiel case mes voet et graunt que desormes de tiels terres et tenementes aliens soit reasonable fyne pris en le chaÌ„cerie per due proces So that by this statute it appereth they toke the landes to be forfeted that were holden of the kinge in chiefe and aliened without his licence And so it appereth by a booke in .14 E. 3. wher Wilby saith that at this day landes holden by graund seriantie and aliened without lycence be forfeted 14. E. 3. in Fitz ti Quare imp p. 54. For the seruice of one mans body cannot be chaÌ„ged into another mans body without the kinges assent Also in the said first yere of king E. 3. the. 13. chap. It is prouided in this wise Et auxi come plusors gents du people soye plenont deste greues per purchase de terres et tenÌ„ts que ont este tenus des auncestors le roy que ore est come des honours et mesmÌ„s tiels tenements on t este prises en le maine le roy auxi si come ils eussent este tenus du roi en chief come de sa
198. Then at what tyme or howe he shoulde pursue his lycence yf the lycence bee graunted by one king he cannot by vertue thereof alien in the tyme of an other kynge as it appeareth 2. E. 3. Lyke lawe yf the landes be in the kinges handes for Primer seisin or alienacioÌ„ wtout lyceÌ„ce P. 2. E. 3. in Fitz. ti Offië de court P. 29. at whych time the king doth licence his tenaunt to make a feffement he cannot make this feffement till the landes bee out of the kings handes as appeareth 21. H. 7. H. 21. H. 7. 7 Also he that hath lycence may not varie from it in anye point As if the king lycence the Abbot and Couent to make a feffement and thabbot sole will make it thys is void as appeareth 21. H. 7. H. 21. H. 7. 8. And there Frowike saide that if the kinge licence mee to make a feoffement by deede I can not make it without deede Nec econtrario H. 3. E. 3. in Fitz. ti Fines p. 164. And herewyth agreeth the booke of 3. E. 3. Where the lycence was to leuie a fyne of the maner of Dale to fynde twoe chapleynes and he woulde haue leuyed the fyne leauynge out the chapleynes coulde not be suffred And. 30. E. 3. 18. E. 2. in Fitz. ti Fines P. 124 M. 30. E. 3. 22 the lycence was to leuye a fyne of the manour of Dale yeldynge a rent and he woulde haue leuied the fyne of the manour with a Forprise that is to saye exceptinge certeine acres parcell of the manour yeldinge the rent and coulde not bee receiued so to doe for that should not agree with the licence which would the whole manour to be charged with the rent But if there had bene no rent reserued it semes he mought haue alyened any part of the manour by a lyceÌ„ce of alienacion of the whole manour tamen quere For it shoulde seeme to be within the woordes of this statute which woulde you shoulde not dysmember the kings fees and learne if the king licence his tenaunt to make a feffement whether hee may make it vpon condicion or not for they vse when a condicionell feffement is to be made to expresse the condicion within the lycence if the condicion be to make an estate againe to the feffour al this goeth vnder one fyne in one lycence And note that if the Iustices before whome the fyne shal bee leuyed be enformed that the landes are holden of the kinge and that so appeare to them by any record they will not take the fyne tyll they haue seen the licence nor yet engrosse it till they haue receiued a write out of the Chauncerie called Quod permittat finem illum leuari by which they may be fullye certified of the kinges pleasure which writ apereth in the new Na. bre f. 147 and that they haue thus vsed it appeareth 4. E. 2. 33. H. 6. But they neuer vsed so to doe vpon a recouerie in these commen writs of entre in the post 4. E. 2. in Fit ti Fynes p. 1â—5 M. 33. H. 6. â— because the recouerer in such case should paye no fyne for it was no alienacion since the recouerer claimed not in by the tenaunt But nowe by the statute made in the .32 yeare of kinge Henrye the 8. it is ordeined that the recouerer in such case should pay a fyne for alienacion And note that if an alienacion bee made wythout lycence the pardon is moste commonlye made vnto the Feffee and not to the Feoffour And so I suppose it ought to be because the wrong groweth by the entre of the Feffee whiche hath entred the kinges fee wythout hys lycence And therefore the case is 14. H. 6. that where the kyngs tenaunt aliened without lycence 14. H. 6. 27 and tooke estate againe to him to his wyfe in taile the remainder ouer to his right heires and dyeth without issue and the kynge pardoneth the wyfe all maner of alienacions this was thought good to exclude the kyng of his fyne that he shoulde haue hadde for the saide alienacion And it is further to bee noted that the lycence must bee purchased vppon a true suggestion or else it is voide For if the kinges tenaunt in taile pretendinge to be tenaunt in fee simple will pourchase lycence to make a Feoffement this is a voide lycence as it appeareth 40. li. ass 40. lib. Ass in Fitz. ti Gard p. 1. And in all cases where the kings tenaunt in chief will dismember his tenaunt that is to saie alien any parcel hereof without lycence the Kinge may distraine for hys whole rent in the parcell so aliened but if he haue the kinges lycence to make such alienacion the alience shall haue a writ in the Chauncerye called de deonerando pro rata porcione that he shall no further bee charged then after the quantitie of the porcion that he holdeth This writt you maye see in the new Natura breuium fo 2â—4 The eygthe chapiter DE ecclesiis vacantibus quarum aduocaciones spectaÌ„t ad regem alij presentauerint ad easdem Ita qd ' contentio inter dominum regem alios oriatur si Rex per consideracionem curiae presentationem suam recuperauerit licet post lapsum sex mensium a tempore vacationis nullum currit ei tempus dum tamen rex presentauerit infra tempus sex mensium Of this chapiter I fynde nothyng neither in Glanuile Bracton nor Britton ne in anye other olde writer before the makynge hereof sauinge that I fynd this texte bothe in Bracton Britton s. quod nullum tempus occurrit regi whyche Bracton in the beginninge of his firste boke vnder this tytle que res dari possit appliethe vnto liberties apperteyninge vnto the crowne saynge in this wise quod illi qui huiusmodi libertatem sibi vendicat doceat huiusmodi ad se pertinere quia si warrantum non habuerit speciale in hac libertate defendere non poterit quamuis pro se pretendit seisinam longi temporis diuturnitas enim longi temporis in hoc casu non minuit iniuriam sed auget nec in isto casu currit tempus contra regem nec incumbit ei probatio qd ' ad ipsum pertinet cum constare debeat singulis quod huiusmodi de iure gentium pertineant ad coronam sed sunt alie res que pertinent ad coronam que non sunt ita sacre quin transferri possunt sicut sunt fundi terre tenementa huiusmodi per que corona Regis roboratur et in quibus currit tempus coÌ„tra regem sicut contra quamlibet priuatam personam This it appeareth by Bracton that this texte dothe not serue the kynge in all cases for prescription shal holde sometime againste the kynge in suche thinges as a manne maye prescribe in 8. H. 5. ti trauerse P. 47. as it is commen in oure bookes that one shall prescribe for wayfe
ne voilomus nous my de ceux qui deueignount sotes per ascun maladye Vpon these words of Britton I note .iij. things one is that the king shal not haue the custodie during theire liefes but duringe theire Ideocy the second notwithstanding the lande is in the kings handes yet the other lorde shall haue theire seignories which is by way of peticion as I take it and the thirde is that the other lorde shall not haue the wardshippe of the heire nor of his landes but onely the kynge whiche thiâ—de thingê by this statute of prerogatiue are not so plainelye set fourthe and also by this statute it appeares that the kynge shall haue the custodye of suche Ideottes durynge they re lyues for the woordes bee Et post mortem eorum reddat eam rectis heredibus and not beefore The manner howe the kynge shall come to his prerogatiue appeares by a booke case .16 Edwarde the thyrde 16. E. 3. in Fits ti Liuery P. 30. where Sharde sayes that when the kyng is enfourmed that there is suche an Ideotte hys highnes shall sende for hym and cause hym to bee broughte beefore hys chauncelloure or some other whom hee shall appoynte and yf by examinacion hee bee founde an Ideot yet his hyghenesse oughte not to sease his landes vntill suche tyme as hee bee founde an Ideot by office And in the newe Natura breuium folio 232. it appeares that the kinge appointes all this matter to theschetour or sherife bothe to examine and enquire in whiche sayde Natura breuium folio 229. it appears that this office when it is founde shal haue relacion a natiuitate to auoide al meane actes donne by the Ideot that is to saye his feffements or release but learne and enquire whether suche feffees shall bee put out by thoffice without anye Scire facias to bee awarded againste them M. 18. E 3. in Fits ti 30. Scire facias P. 10. et 106. In 18 .32 E. 3. a Scire facias was awarded in that case and learne allso whether the office shall haue relacion for the profites from the tyme of hys natiuitie or onelye from the findinge of thoffice Then to the exposicion the woordes bee Rex habebit custodiam terrarum fatuorum naturalium By these woordes it apperethe that he must bee a fole natural that is to saye a foole a natiuitate â–ª for yf he were once wyse and beecame a fole by chaÌ„ce or misfortun M. 18. E. 3. Fits ti Scire facias P. 10. the king shal not haue the custody of him and so it is agreed in .18 E. 3. And also in the newe Natura breuium fol. 2â—3 and the manner of the tryall of hym to bee a foole naturall appeares in the sayde Natura breuium folio 233. that is is to saye yf hee cannot tell to tweÌ„tye pence or tel his age or who was his father and mother or such like thinges whereby yt may appeare hee hathe no kynd of vnderstandinge in that that is eyther for hys profyte or dammage But if hee bee learned or apte to learne thenne is hee no Ideot as maister Fitsherbert there thinks M. 31. E. 3. ti sauer de defaulte P. 37. and Grene sayethe in .31 Edwarde the thirde That yf hee bee able to begette eyther sonne or doughter he is no foole naturall The woordes of the statute bee further Capiendo omnes exitus eorundem sine vasto et destruccione et inueniet eis necessaria sua By these woordes it appeareth that the kynge maye take the profetes to hys owne vse fyndynge them theire necessaries And therefore in the booke beefore of Tricesimo primo of Edwarde the thyrde the kynge dyd not lette the lande vnto one of the cosyns of the Ideot yeeldynge a rente butte these woordes findynge them necessaryes is not onelye mente to the Ideottes themselues but allso to all them that hange vpon them as they re wyfe chyldren and familye And allso by these woordes sine vasto destruccione M. 3. E. 2. in Fits ti Gard. P. 5. it appearethe the kynge is bounde to reparacions of theire landes and tenementes The woordes bee allso De cuiuscunque feodo terre ille fuerint By those woordes it shoulde seeme the kynge shoulde be preferred in thys tytle of Ideocye beefore anye other lords whyche myghte clayme the Ideot as hys warde howebeit learne what other menne thynke therein Et post mortem eorum reddat eam rectis heredibus Bye these woordes it shoulde appeare that the kynge shoulde saue the custodye durynge the lyfe of the Ideof and that than an Ouster le mayne in nature of a lyuerye shall bee suyd of the same oute of the kynges handes butte whether yt shall bee made wythe the yssues and profytes from the tyme of the Ideottes deathe or onelye butte from the time of the tender of the Oustere le mayne learne butte yf the landes that the kynge hadde so in custodye bee holden of hym in capite thenne notwythestandyng these wordes of the statute yet the kynge shall haue wardeshyppe prymer seisin and all other prerogatiues as yf hys tenaunte in chiefe hadde dyed seased thereof beynge noe Ideot as it maye appeere in the newe Natura breuium fol. 2â—6 And there it appeares folio 2â—2 allso that allthoughe the Ideot helde noe landes of the kyng yet a Diem clausit extremum shall bee awarded after hys deathe to enquire what landes hee dyed seased of of whom they are holden c. And it is to be noted that yf one be fouÌ„d Ideot by office before the king seaseth the lands the Ideot dies yet the kynge shall sease beecause of these woordes in the statute â— post mortem eorum reddat eam rectis heredibus whych his grace cannot do but vpon a seisure and thys appeares 18. M. 18. E. 3. in Fits ti Scire facias P. 10. Edwarde the thirde And note allso that if ther descende to an Ideot no possession in landes butte onelye a ryghte bee it righte of entre or title of entre or ryghte of accion the kynge shall not enter and haue the custodie of the same 1. H. 7. 15. as appeares in 1. Henrye the seuenth and yet if hys tenaunt of landes holden of hym by knyghtes seruice bee disseised and dyethe his heire within age the kynge shall enter and holde the same in warde and therfore learn what is the reason that shoulde make a difference in these cases The woordes be further Ita quod nullatenus per eosdem fatuos alienentur nec quod eorum heredes exheredentur Bye these woordes it appeareth the landes cannot bee aliened by the Ideot nor the heires disheryted and therefore if the Ideot make a feffement or release of his landes and that founde by office the kynge shall auoyde it as I haue beefore noted and so likewyse his heires after his deathe by force of these woordes of the statute And yet it appeares .31 E. 3. that a recouerie by
this realm holden by NormaÌ„s which after they begaÌ„ to adhere to the FreÌ„ch king the kings enemy became traytors vnto his highnes they forfaited al their lands by order of the coÌ„moÌ„ law to the king of whoÌ„soeuer they were holdeÌ„ Howbeit in such cases after the forfaiture if the king had geueÌ„ these laÌ„ds to any other he might not haue geuen them to holde of him selfe but onelye of them of whom they weare before holden as this statute plainelye declareth that king Henry the third so did M. 20. â— 3. ti Assi in Fits P. 124. et ê‘ 46. E. 3. ti Peticion P. 19. And likewise in 20. .46 E. 3. it appeareth that if the king do otherwise his patent shall be repelled and made to holde of the lordes of whom the landes weare holden before the treason and that by a peticion of ryghte to be sued vnto the king for the redresse of the same for other remedie haue they none distrayne they may not as appeareth in the newe Natura breuium f. 180. And further it should appeare by the sayde boke of .20 E. 3. that the king ought not to reteyne such land in his owne handes no while but must dispose theÌ„ ouer to holde of them that were lordes thereof at the time of the treason committed Hereby may you gather that this statute in his first braunch is but a confirmacion of the common law and that long time before the makinge hereof kinge H. 3. had this prerogatiue as it dothe manifestlye appeare in the later braunche thereof And also by Bracton in his first boke in the title De custod ' maritagijs dnÌ„orum and likewise in Britton folio 28. The woordes of the statut be further Hoc similiter intelligendum est si aliqua hereditas discendat alicui nato in partibus transmarinis et cuius antecessores fuerunt ad fid eÌ„regis Franciae de tempore regis Iohannis Angliae sicut de baronia Monumete post mortem Iohannis de Monumeta cuius heredes fuerunt de Brittannia vel alibi By this braunch it shoulde appeare that at this time men of Normandy Gascoign Guion Angeo Brittain were inheritable wtin this realm as wel as English men because that they were somtime subiect vnto the king of England and vnder their dominion vntil king Ihons time as is aforesaide and yet after his time those meÌ„ sauynge suche whose landes weare taken awaye for treason weare still inheritable within this realme till the makynge of this statute And in the time of peace beetweene the twooe kinges of Englande and Fraunce theye weare aunswerable within this realme if they had broughte anye action for theire landes and tenementes as it doth plainly appere by Bracton in his fifth boke in the title De exceptione quia alienigenÌ„ for these be his words Est auteÌ„ alia exceptio qÌ„ competit tenenti ex persona petentis propter defectuÌ„ nationis qÌ„ dilatoria est et noÌ„ perimit actioneÌ„ Vt si quis alienigena qui fuer ' ad fideÌ„ regis FraÌ„cie actioneÌ„ instituit versê° aliqueÌ„ qui fuerit ad fidem regis Angliae talis noÌ„ respondeatur saltem donec terre sint communes nec etiam si rex ei coÌ„ces serit specialiter placitare quia sicut Anglicus non auditur in placitando aliquem de terris tenementis in Francia ita non debet alienigena Francigena qui fuerit ad fidem regis Franciae audiri placitando in Anglia Note here that he sayethe that this exception is but dilatorie and not peremptorie whiche proueth that hee shall haue his accion at an other time that is to say in the time of peace And also he sayeth after Donec terre sunt communes which is as much to say vntill suche time as there is peace beetwene Fraunce Inglande Also Bracton in his thirde booke vnder the title quod mulier ostendat warrantum per quem petit dotem sayethe si warrantus fuerit ad fidem regis Franciae excipiatur de warranto remanebit dotis exactio in suspenso imê‘petuum vel ad tempus saltem donec terre fuerint comunes This warrant of dower is the heire of the husbands for by thauÌ„cient law if a woman had brought her writ of dower against any other but the heire he was not bounde to aunswere her dower vntill such time as she had brought foorth her warraunt that is to say the heire In like case after shee is endowed she is not bounde to aunswere to anye other without the heire and if it might appeare that the heir had no righte in the second part then shoulde shee be barred of her accion of dower as it appeareth in the case beefore that hys right is suspended when he is a FrenchmaÌ„ and the .ij. realmes at warre Howebeit it appearethe as I haue sayde before that this exception is not peremptorie but that after the twoe realmes be agayne at peace she shall haue her dower The woordes of this braunche be also in the Copulatyue that is to say that the auncester must be of the allegeaunce of the Frenche king that the heire of the sayd auÌ„cester is born in the part of beyond sea I put case than that the auncestour were of the allegeaunce bothe of th one kynge and the other that is to say the Frenche king and the kyng of Englande whether is this within the compas of this statute For Bracton in his saide v. book vnder the title De exceptione quia alienigena saith Quod suÌ„t aliqui qui sunt ad fidem vtriusque sicut fuit W. comes Marescallus manens in Anglia et Michaell de Seins manens in Francia et alii plures et ita tamen quod si contingat guerra moueri inter Reges remaneat personaliter quilibet eorum cum eo cui fecerit ligeantiaÌ„ Whereby it shoulde appeare that of suche as were in allegeaunce to bothe kinges the kinge shoulde haue no eschetes of their landes For the woords of the statute bee not onlye ad fidem regis Franciae but also et non ad fidem regis Ang. ideo quere And whoe shal bee inheritable at this daie that bee borne in the parties beyonde the sea and who not See the statute thereof made in the .25 yeare of king Edwarde .3 de natis in partibus transmarinis The thirtenth chapiter QVando aliquis qui de rege tenet in Capite in fata decedat et heres eius ingrediatur tenÌ„tum qd ' antecessor suus tenuit de rege die quo obiit antequam fecerit homagium regi et seisinam suam ceperit per regem tunc nullum accrescit ei liberum tenemeÌ„tum Et si obierit seisitus per idem tempus vxor eius noÌ„ habebit dotem de tenemento illo sicut contingit de Matilda filia comitis Hereford vxoris Manusel marescalli qui post mortem wilhelmi Marescalli Anglie fratris sui cepit seisinam
castri et manerii de Scrogoill et obiit in eodem castro antequaÌ„ intrasset per regem et fecisset ei homagium et vnde concordatum fuit quód vxor non haberet dotem eo quôd vir suus non intrauit per Regem immo per intrusionem sed hoc non intelligatur de Socagio et paruis tenuris This Statute is but an affirmacion of the common lawe as it maye appeare by the case coÌ„prised in the same which was ruled before the makynge of thys statute and iudged accordinge to theffecte hereof And this statute seemeth too putte a paine vppon the heires that will entrude before they haue sued theire lyuere and taketh awaye from them the free holde that the lawe had else vested in them And yet it is not taken so generallye as the woordes bee but specially and onelye of intrusions after office founde and not before And therefore if the heire enter after the deathe of hys auncestour and before office founde and the kynge pardoneth him all entries with the profites this is good and amounteth to a speciall liuere so that the heir needeth to sue no moe liueries and yet if thentrusion were after office and then the kinge woulde pardone him it were void bycause that at the tyme of the pardone he had no freeholde whereuppon the pardon might enure Like lawe is if the heire before office enter and make a feffement and the kynge pardone the feoffee it is good A. 3. H. 7. 2. and yet suche a feffement after office with a pardone were voide for the reason I haue made before Like lawe is if thentrie beefore office and the pardone after office this is voide beecause that by offyce the kinge taketh the possession from the heire or feffee and then is there no possession whereuppon the pardon maye enure And so voide For the office when it is founde hathe relacion from the death of the kynges tenaunt if it bee so that the kinge doe not release his right beefore thâ—ffice founde P. 16. E 4. 1. and that appeareth 16. E. 4. where it is also sayde that the pardone must bee as well of the profites as of the entrie or elles after office founde the kynge shal bee aunswered of the profites and .13 Henrye .4 M. 13 H. 4. there is a difference put beetwene the pardone that is made to the heyre and the pardone that is made to the feoffee For in the case of the feoffee the pardone must bee speciall rehersinge all the matters Then let vs see further for the endowement if after the death of the kynges tenaunt the heire dothe not enter but dye before office founde hys wife shall bee endowed because of a possession in lawe that was in hym Like lawe is it if hee dye after office founde and beefore anye entrie Like lawe is it if hee entre before office and dye But if the kynge bee once seised by offyce and the heire dye before licence and the nexte heire will enter beefore a Deuenerunt sued and dyeth hys wife shall not bee endowed for in that case it is an intrusion after office For when the kynge is ones seised by office this seisine remains till liuerie or ouster le maine be sued 1. H. 7. 3. 4. H. 7. 1. et 2 M. 38. E. 3. 35. And these cases are 1. et 4. H. 7. The woordes of the Statute bee further sed hoc non intelligatur de Socagio et paruis tenuris These woordes are to bee intended of common Socage for if hee holde of the kynge in Socage in chiefe and wyll intrude after office nullum accrescit ei liberum tenementum no more than if the landes were holden by knyghtes seruice in chiefe 24. E. 3. f. 34 H. 21. E. 3. 2â— And it is a generall grounde that in all cases â–ª where hee that sueth hys generall lyuerie or ouster le mayne missueth the same and entreth thereby thys entrye is an intrusion vppon the kynges possession and hys wyfe of that possession shall not bee endowed as appearethe 21. et 24. Edward 3. The fourtenth chapiter ITem Rex habebit escaetas de terris libere tenentium Archiepiscoporum et Episcoporum quando ipsi tenentes damnati sunt pro felonia facta tempore vacationis dum temporalia eorundem fuerunt in manu domini regis conferend ' cui voluerit imperpetuum saluo seruicio quod ad dictos prelatos inde pertinet et fieri consueuit Of this statute I fynde no bookecase Howbeit the letter of it is verie plaine and needs no maner of exposicion For it goeth not to anye other eschetes than suche as growe vppon offences And if the crime or offence were done whyle the lande was in the kinges handes notwithstandinge the partie were not attainted thereof vntill suche time as the landes bee out of the kinges handes yet the king shal haue the eschete by force of this statute And heare it appearethe howe the kinge shall not hold the landes forfaited still in his handes but must geue them ouer to hold of them that they were holden of before The fiftenthe chapiter QVando dominus Rex dat vel concedit alicui manerium vel terram cum pertinÌ„ nisi faciat in charta sua vel scripto expressam mentionem de feodis mill ' aduocationibus ecclesiarum et dotibus cuÌ„ accidunt ad predictum manerium vel terram pertinenÌ„ tunc his diebus rex reseruat sibi eadem feoda aduocationes cum dotibus licet inter alias personas non fuerint obseruata It is agreed in .43 E. 3. M 43 E. 3. 19 that by the order of the comon lawe before this statut if the king had ben seised of a maner to the which aduousoÌ„ had bene appeÌ„daÌ„t had geuen it to me notwithstanding that in the kinges grant there hadde bene no mencion made of the auowson nor of these woordes cuÌ„ ê‘tinÌ„ yet thauouson hadde passed from his highnes by the sayde grant for in those daies the king was but a comon parson a write of Enter sur disseisin A. 20. H. 3. ti assise in Fitz p. 431 M. 24. E. 3. f. 23 H. 22. E. 3. f 3 all other accions did lye against him as against any other comon ê‘son And therefore in 20. H. 3. A write of entrie was brought againste one supposing that he had no entrie but by disseisin which the king did to the demaundant when he was wtin age also Wilby 24. E. 3. reporteth that he hath sene a write which was Precipe H. regi Angliae in place wherof is now geuen Peticion by hys Prerogatiue And so it is said .22 E. 3. that in tyme of king H. 3. and before the king should be empleded as any other comeÌ„ ê‘son But king E. his sonne ordeined that none should sue him but be driuen to their peticion Howbeit sauing reformacion of these bookes I think the law was neuer so that a man should haue
any suche accion against the kinge For Bracton which wrote in king H. 3. time or nere thereupon saith in his .iii. booke vnder the title Contra queÌ„ coÌ„petit assisa in this wise Inter cetera videndum est quis sit ille qui deiecit Princeps ex poteÌ„tia vel aliquis nomine suo vel iudex qui male iudicauerit an priuata persona si princeps vel rex vel alius qui superiorem non habuerit nisi deum contra ipsuÌ„ non habebitur remedium per assisam imo tantum erit locus supplicationi vt factum suum corriget et emendet quod si non fecerit sufficiat ei pro pena quod deum expectet vltorem qui dicit mihi vindictam et ego retribuam nisi sit qui dicat quod vniuersitas regni et Barronagium suum facere possit et debeat in Curia ipsius regis sed si alius ex facto et disseisina principis statim vel ex post facto in seisinam institerit quamuis talis incidat in assisam et in penam vel tantum ad restitutionem secundum quod seisina ad ipsuÌ„ peruenerit statim vel ex post facto sine principe tamen conueniri non poterit per assisam quia licet quodamodo disseisinam fecerit tamen non per se sed cum alio s. cum principe et ita quod sine eo respoÌ„dere non potuit et ita non procedit assisa Indirecte tamen et quasi ex incidenti et sine breui comprehendi poterit persona principis ad hoc quod factum suum emendet vel in ê‘sonam suam reduÌ„dabit iniuria manifeste vt ecce Esto quod impetretur assisa tantum super eum ad quem res translata est sine principe et qui tenetur ad restitutionem et ad penam vel ad minus ad restitutionem et ipse respondeat quôd sine principe qui fecit iniuriam per se vel per suos respondere non debeat quia ipse princeps per se fecit iniuriam vel ipsi duo insimul extunc erit factum et iniuria in manu domini regis qui dici debet in facto quasi warrantus et quod tunc poterit si warrantus voluerit factum suum emendare quasi a lege compulsus et quam in persona sua cum sit ei submissus debet firmiter obseruare So that by Bracton it appeareth that no accion lyeth against the kinge but the partye greeued is dryuen to sue to the king by peticion But the reason why that aduowsons shoulde passe in the kings case by the order of the common lawe thoughe it were not expressed in the graunt was this I suppose because that landes or tenementes were not then compted as thinges that touched the roiall estate or that made the kynges crowne lyke as Liberties or fraunchises did For the one a comon persone might haue as well as the kinge but the other none might haue but the king or suche as were able to shewe his grant therof and therefore saith Bracton in his first booke vnder the title que res dari possint that for landes currit tempus contra regem sicut contra quamlibet priuatam personam Which is as much to say that if the king had right to any such landes or tenementes and hadde surcessed his time so longe that it exceeded the time of limitation in a write of right his highnes hadde lost then his right for euer And herewith agreeth Briton fo 29. But that is saith Britton of landes parcell of the kinges eschetes or pourchased landes and not of the auncient demeasnes of his crowne for of those nullum currit ei tempus if hee haue anye righte to demaunde them So that by Britton this reason will not serue for landes parcel of the crowne Ideo quere veraÌ„ rationem Howbeit since this statute made what landes soeuer they be those thinges that are comprised in this statut passe not without making expresse mencion therof Hetherto we haue spoken of the reason why at the common lawe aduowsons shoulde passe by graunt of the manour without being named now let vs see how since the makinge of this statute it shal lykewise passe by graunt of the manour without being expressely named and how not And if the kinge render vp to him that was in warde at ful age his landes or to a bishopp his temporalties although he make no mencion of knights fees or auousons yet all passe therwith for like as the kinges seisine in suche case is by these woordes omnia terra et tenementa without speakinge of fees or auowsons euen so being sued out of his handes by these woordes omnia terre et tenementa Liuerie p. 7. T 16 E. 3. p. 30. fees and auâ—wsoÌ„z do passe without making any mencion thereof And this appeareth .5 E. 3. .16 of the same king Where after the death of an ydeot the king rendred againe the lands to the heire not making meÌ„tion of fees or auousons yet he had them And likewise 41. et 44. E. 3. the kinge graunted the temporalties to one that was elect bishop before he was coÌ„secrat H. 41. E. 3. f 44. E. 3. f. 22. aiudged that fees aduousons passed wtout making any meÌ„cion therof yet at the time of the graunt he was not bishop for he lacked consecracion And the reson in all these cases is for that the king was but seised in another bodies righte and by his liuerie he geueth nothinge vnto them but only restoreth theÌ„ to their right they had before Like law should it appere to be by Finchden .29 E. 3. H. 29. E. 3. in Fitz. ti Quare impedit p. 190. If auousoÌ„ of a church be appeÌ„daÌ„t to a Priorie which Priorie is seised into the kings haÌ„ds by resoÌ„ that an alieÌ„ is patron of it afterward the king dimiseth the saide Priorie cum pertinenÌ„ not makinge mention of thauouson vnto the saide Prior yelding a rent to haue to hold the same during the warre And his reason is this for that the right freehold in this case remaineth still in the Priour notwithstandinge any such seisin the kinge is but to haue an annuel profit therof no right but if anye bee to sue dower or liuerie with a particion out of the kinges haÌ„des they by that cannot haue thauouson if mencion be not ther of made no more than they can that claim by Graunt and yet the king rendreth them the thing in respect of a right be fore as he doth in the other cases But what then they claim not the whole lande that is in the kinges hands but only parcell therof then thauouson euermore abydeth with that that remaines if expresse mencion be not made therof and so not like the cases before where the king makes liuerie of the whole And this case appeareth also in the said booke of 5. E. 3. And note
them before hee bee attainted the sale is goode Forfeture 30. 30. H. 6. f. 5 38 E. 3. fo 37. Corone 290. et 285. but for landes it hathe relacion to that daie of the felonic committed be it that the attainder bee by verdite or vtlarie as it appereth .38 E. 3. et 30. H. 6. or be it that he bee attainted without proces of law as in the cases aboue remeÌ„bred where he is killed in the fleing as appereth 3. E. 3. And note that if thattainder and the office found of his landes be both wtin the yere of the felonie first coÌ„mitted that it shal haue no relacion for that yeres profites otherwise it is if it be after the yere as it appereth 3. E. 3. This boke must be vnderstaÌ„de as I take it where the attainder the office be before any daye of paymeÌ„t within that yere The words of this chapiter be further Et si ipsi habeant liberuÌ„ tenÌ„tuÌ„ tunc illud statiÌ„ capietur in manum domini regis et rex habebit omnes exitus eiusdem per vnum annuÌ„ et vnum diem et tenementuÌ„ illud vastabitur et destruetur de domibus boscis et gardinis et aliis quibuscunque ad predictum tenementum spectaÌ„tibus It should appere by Glanuile in the beginning of this chapiter that the common law was as much before the making herof in all cases of feloni sauiÌ„g for theft in which in the king had no yere and daye Howbeit after Glanuiles time the statut of Magna carta was made which sayd in the 22 chapter therof Nos non tenebimê° terras illorum qui conuicti fuerint de felonia nisi per vnum annum et vnum diem et tunc red dantur terre ille dominis feodorum By this it should seme this statute doth remitte the wast because it speaketh nothing of it or ells perauenture you will saye that this word Nisi argues and proues that the kinge before the statut of Magna carta might haue holdeÌ„ it as longe as he would but to the coÌ„trarie of that exposition is Glanuile as it appereth before And also Bracton which wrote somwhat after this tyme For by Bracton in his second boke it appereth that before the making of the sayd statut of Magna carta the king had nothinge els but the wast and to th entent he should remitte the wast the yere and day was afterward geuen to the kinge For these be his words in the title of Vtlarie Si vero terraÌ„ liberam habuerint vtlagati statim capienda est in manum do mini regis et tenenda per vnum annum et vnum diem ad capitales dominos post terminuÌ„ illuÌ„ reuersura si de alio tenuerit quaÌ„ de rege si auteÌ„ de rege tunc erit Eschaeta ipsius regis et hoc veruÌ„ est quod per taleÌ„ terminuÌ„ remanebit in manu do mini regis nisi ipse capitalis dominus vel alius fineÌ„ fecerit protermino regi habendo fed quesit causa quare terra remane bit in manu domini regis videtur quod talis est quia reuera cuÌ„ quis fuerit coÌ„uictus de aliqua felonia in potestate domini regis erit prosternandi edificia extirpandi gardina et arandi prata et quoniaÌ„ huiusmodi vrge bantur in graue daÌ„num dominoruÌ„ pro coÌ„muni vtilitate prouisuÌ„ fuit quod huiusmodi dura et grauia remanerent et quod dominê° rex propter hoc haberet coÌ„moditateÌ„ totius terre illius per vnuÌ„ annuÌ„ et vnuÌ„ dieÌ„ et sic omnia cuÌ„ integritate reuertereÌ„tur in manus capitaliuÌ„ dominoruÌ„ nunc auteÌ„ petitur vtruÌ„ .6 finis pro termino et similiter pro vasto Et noÌ„ video rationeÌ„ quare nisi quod terminus bene poterit esse per se sine vasto eo quod fugitiuus et vtlagatus non soluÌ„ delinquit erga euÌ„ qui sequitur et appel lat sed erga regeÌ„ cuius paceÌ„ infriÌ„git contra fideÌ„ suaÌ„ cui tene tur quia quilibet cuÌ„ faciat sacrameÌ„tuÌ„ iurat salua fide domini regis Thus our autors agre not vpoÌ„ this yere day for Bracton is contrarie to Glanuille that wrote before him Howbeit BrittoÌ„ which was likewise before the makiÌ„g of this statut of Prerogatiua agreeth with Bracton as it appereth in his boke fo 14. adding further that the kinge shal not haue the yere and day of land that is holden only for terme of life or yeres or by freshe disseisin or in fee ferme or in mortgag And so is Bracton also therw t agreing in his secoÌ„d boke but now sins the time this statut of prerogatiua was made which geues the kinge as you may perceiue bothe the yeare day the wast And first he saieth quod rex habebit omnes exitus eiusdeÌ„ per vnuÌ„ annuÌ„ et vnuÌ„ dieÌ„ By this it should appere that the kynge should not haue the issues of the land but by a yere a day but yet it is clere that he shal haue the issues also from the time of the felonie done vntil the time his highnes hath had the yere day wast not the lord allowing that that is to be alowed for the finding of the prisoner for it can not be inteÌ„ded that the lord shoulde haue the meane profits because the laÌ„d shal be deliuered vnto him wtout profit that is to saye wasted destroyed 3. E. 3. in Fitz ti Corone 290. 49. E. 3. fo 1â— And therw t agreeth the boke in 3. 49. E. 3. And there it appereth that if an office be fouÌ„d 20. yeres after the attainder the kinge shal haue the profites from the time of the felonie coÌ„mitted vntill the yeare and daye next after the office founde For though the lord be entitled to haue theschete yet the kinges title for the yeare daye and waste goeth beefore the lordes For the wordes bee Postquam dominus rex habuerit annum diem et vastum tunc reddatur tenÌ„tum illud capitali domino Also by this woorde Reddatur it semes the lord can not enter intoo his escâ—ete after office found but is driuen too sue an ousterle main for the same out of the kinges handes as it appereth 8. 8. E. 2. in Fitz ti Trauers Pl. 48. E. 2. but if a stranger abate before office the lord shal haue a writ of eschete against him and recouer and yet that notwithstanding when an office shal be founde afterwarde the kinge may seise for the yere daye and wast and shal be aunswered of the mesne profytes like as it is when the kinges tenant in chief dyeth his heir of full age an estraÌ„ger abateth the heier maye haue assise of mort dauncestore if he will and recouer against the abator and yet vpon an office found afterward the kinge shall seise for primer season and be answered of all the meane profites and the heir
possession as any other By a statute made the .33 yere of the late kinge of famous memorie H. 8. the 20. chapter it is among other things prouided that if any person or persons shal be attainted of hye treson by the course of the comon lawes or statutes of this realme that in euery such case euery suche attainder by the cōmon law shal be of as good strength value force and effect as if it had ben done by authorite of parliament that the kinges maiestye his heires and successors shall haue as much benefit auātage by such attainder as well of vses rights entres cōdicions as possessions reuercions remainders and all other things as if it had ben done and declared by autoritie of parliamēt and shal be demed and a iudged in actuall and reall possessiō of the lands tenemēts hereditamēts vses goods cattals all other things of the offēdors so attaīted which his highnes ought lawfulli to haue and which they so being attainted ought or might lawfulli lose and forfait if the attainder had ben done by authorite of parliamēt without any office or inquisicion to be founde of the same any law statut or vse of the realme to the cōtrarye therof mani wise notwtstādīg This statut maks it clere without questiō that in cases of hye treson the lāds of him that is attainted are in the kinge biand by without any office But for other attainder it remaines as it was at the comō Law and therfore lerne if one which holdeth of the king be attainted of petit treson or felonie whether in this case by thatainder his lands be in the king without office and me semeth by attaīder and death together they should be in the kinge in law howbeit not in dede vntill suche time his highnes seise themby his officer or that an office bee therof foūd for by thattainder the lands are forfaited to the kinge by mater of record and then when the partie dyeth either the frehold must be in suspence or els aiudged in the king in lawe for he that was seised hath corrupted his blood and is dead without heir and therfore his highnes is beecome owner thereof in lawe and a possession in lawe vested in him of the same landes which his highnes at his will and pleasure may make a possessiō in dede as sōe as he wil take vpon him knowledge of the sayd landes and sease them by his officer And therfore the booke is agred 20. E. 4. 20. E. 4. so 10 that if he that is attaynted be seised of auowsōs appendaūt as sōe as the church becometh voide the king may presēt wtout any office which proues that the kinge by thattainder was patron before any office found or els how could his highnes present and I see no differēce betwene lāds auousōs in this case for auouson is not so transitorie toward the kinge but that he mai take the presentment therof at all times whē he will quia nullum tēpus ei occurrit Howbeit lerne what the law will in this case for many mē are of the contrarie opinion And see the boke .4 E. 4. cōcernīg this mater And so note what is sayd of a possession in law 4. E. 4. 21. for as I take it there may be a possession in law in the kinge as well as a possessiō in dede which possession in law is euer without office or any other mater of record as whē the possessiō is cast vpō his highnes by a discēt reuerter remaīder or escheit or in title of his seignorie or prerogatiue as for wardship primer seisī or for the custodie of the tēporalties of a bishop during the time that the see is vacant in all these cases without any office or other mater of record here is a possession in law vested in the kings highnes that is to say for that that doth descēd reuert remain or eschet the freholde is cast vpon him in lawe as it should be vpon a comon person in the like case or els the frehold should be in suspence which may not be of the rest the possession in law of a cattell is in his highnes in right of his seignorie which his highnes at his will and pleasure may make a possession in dede by entre or seasure but not to make it a possession in dede by his graunt because there is a statute made in the 18. yeare of H. 6. ca. 6. to the let therof which prouideth that all letters patents made of lāds tenements before office foūd and returned or within one month after but onely too him that tendethe his trauerse shal bee voyde This statute extdes onely to landes and tenementes therfore of the bodie of his warde his highnes may make a graunt notwithstandinge this statute as me semeth for that is neither lād ne tenemēt also notwithstādinge that this statute doth restraine the graunting of the lāds tenemēts yet the seisin therof remaines and is in the kinge as it was by order of the comon lawe which is as I sayd before in his highnes in lawe although not in dede vntil such time as he hath made a seasyn or an entree by his eschetour or a graunt therof which wayethe both to a seasure and a graunt in such cases where the graunte maye bee goode and not restrained by statute or vntill such time an office therof be found For an office that entitleth the kinge to the possession is sufficient by it selfe without any seiser or entre of the eschetour to make a possession in deede in the kinge if it be so that the possession were vacant when the office was founde But if the possession were not vacāt but an other thā he in whose right the kinge seiseth was tenant therof at the time of the findinge of the office then must the kinge entre or sese by his officer before the possession in deede shal bee iudged in him yea and if his highnes seise not by the space of a yeare and a daye after the findinge of the office then maye be not seise without a Scire facias to bee pursued agaīst him that is tenāt therof 9. H. 7. f. 2. 7 49. E. 3. f. 22. 20. E. 4. f. 10. Estopel 255. Trauers 50. 32. Ass P. 32. 29. Ass P. 30. 21. H. 7 f. 7. P. 21. E. 4 f. 1 Gard. P. 105 And of those maters you may see bokes 9 H. 7. 49. E. 3. 20. et 21. E. 4. 4. E. 2. 10. H. 4. 21. H. 7. 29. et 32. li. ass But heruppon is there a distinction to be made whether that that the king is ētitled vnto by office be a thinge manuell and wherof profit maye bee taken forthwith after the findinge of the office or not For if it bee such a thinge as is not manuel and wherof there is no profite too bee taken forthwith vntill such time it falleth in that case althoughe the king be in possession of the right of
the thing yet is he not in possession of the profit therof vntill such time as his highnes actually by his officer when it falleth taketh and perceiueth the said profit as for example The thing that king is entitled vnto by office is no land but auowson rent or a comon although that the kinge by this office be patron of thauouson or owner of the rent or comon and therby when the benefice becometh voide may present or when the rēt daye cometh may receue the rent or when the comō is to be takē may vse the said comō yet if the office that entitleth his highnes be false and he that was in possession at time of the office take the profite when it falleth before the kinges officer do take it in this case this takinge is no entrusyon vpon the kynges possessions for he was neuer seysed in deede wherefore being driuen to his accion if his highnes bringe his Quare impedit or accion of trespas the defendant maye trauerse the office with him in the said actions keping still his possession and neede not too sue in the chancerie for the trauersing of the same This maye you see a Difference beetwene a thinge that is manuel and a thinge not manuel and what the reason therof should bee learne for as I. suppose the reason of it is no other but as I sayde before that when a straunger is tenant at time of the office findynge the office maketh no possession in deede in the kinge beefore an entrie or a seiser And then when the kinges officer taketh not the profites when it falleth but suffreth him that was in possession to take it then was the kinge neuer seised but he still remaines in possession that was possessed at the time of the finding of the office vntill such time as seiser bee made for the kinge which can not bee done at all times as it maye bee of land but onely at such times as the profit therof is too bee takē that is to saye when it fallethe and that is nowe past for this time seynge it is allredy taken and therfore the kynge in that case is driuen too his action But quere whether his highnes may bee brought in possession in those cases by a clayme or not And these cases maye you seee in the bokes of .17 E. 3. f 10. 21. E. 4. f. 1. 5. E. 4. f. 3. et 4. E. 3. 15. H. 7. f. 24. Quare Impedit P. 33 Like law is it where an office is found which doth not entitle the kinge to the possession by entrie but onely by action as where it is found that the kinges tenant for terme of life or yeres hath done wast or being his tenant in fee simple hath cessed by ii yeres or made a feffemēt by collusiō contrarie to the statut of marlebrige or such like For it is a general rule that in al cases wher a comō person cannot ēter but is driuen to his action there the kinge can not haue the possession but by like action or ells by a Scire facias after office foūd in nature of the actiō for the office in the case entitleth the kinge to no other thinge but onlye to the action as appereth 21. H. 7. f. 1◠21. H. 7. fo 1◠But quere of a feffmēt that is foūd to be made by collusiō cōtrarie to the statute A. 34. et 35. H. 8. ca. 5. for in the case it semes his highnes may enter wtout Scire facias beecause the said statute apointes no action to be sued in the case And note that in al these cases before where the kinge is driuen to his Scire facias or other acciō if the office be false the partie maye trauerse the office with the king keping still his possessiō whether it be in the chancerie or in any other court nede not to sue any ouster le main if it be foūd for him because he was neuer out of possessiō Thē further let vs see in what cases the king can not be ētitled but only by office or other mater of record in what cases he may howbeit not to haue anye possessiō either in dede or in law vntil the time there be a seasure made And as to that note that in all cases where a comō persō can not haue a possessiō neither in dede nor in law wtout an entre there the kinge can not haue it wtout an office or such like mater of record as where the king hath title to enter for a mortmain or for a cōditiō brokē in this case the king can haue no title vntill such time as the sayd mortmain or cōdiciō broken be foūd by office or by some other record as it appereth 2. ◠9 H. 7. 2. H. 7. in Fitz ti proc P. 10. So it is in diuerse other cases concerning the kinges prerogatiue as in the case of Ideotes of lunatikes which haue lāds or tenemēts or when his highnes is to be ētitled for annū diē et vastū of persōs attaīted or for an alienaciō wtout licēce or to sese the tēporalties of a bishop for a contēpt in all those cases his title must be furst foūd by office or otherwise apere of record for these rights his highnes hath only as king But if his highnes haue cause to seise the lāds of his widow that hath maried her self wtout license his highnes maye seise notwtstandinge there be no office foūde of her mariage as it appereth in the new Natura breuiū f. 174 Learne what should be the reason therof more then in the case of alienaciō before Like law hath bene vsed where his highnes is to sese lands of priors aliens within this realme ratione guerre his highnes doth it without any office for in bothe these cases the kinges title is notorious enoughe althoughe it appere not of recorde But yet in those cases his highnes must seise eare he can haue anye interest in the lāds because they bee penal toward the partie and of these cases you shall finde bokes 49. E. 3. f. 17. 21. E. 3. fo 31. 21. H. 7 fo 7. 14. H. 4. fo 37. 22. E. 4. fo 4. 3. et 17. E. 3. fo 1. et 17. Other prerogatiues the kinge hath which extende onely to personal and transitorie thinges ad bona et catalla felonū wreke de mere tresour troue or the profites of landes of clerkes conuict of felonie or of persons outlawed in a personall action to these thinges it semes the kinge is ētitled although there be no office or other mater of record found of them as it should appere 11. H. 4. fo 39. 21. H. 7. fo 7. et 27. li. ass P. 50 And note that if the kinges title appere any way of record Gard. 1. 40. Ass P. 36 it is as good as if it weare found by office Therfore yf the kinges tenāt alien wtout licence which alienacion appereth by fine or other mater of recorde
f. 18. for he that is found heire by the seconde office can not haue liuerie if thenterpleader weare found for him because he is not found heire of all as is before remembred And therefore if one be founde heyre virtu te breuis and an other is founde heire virtute officij in this case they shall not enterpleade beecause hee that is founde heire virtute officij can not haue liuerie yf thenterpleader did passe with him for the nature of enterpleder is to haue 〈◊〉 for him with whom it is founde And note that notwithestandyng an enterpleder is not to trie the righte in the land but onelye the priuitie of bloud yet the issue tryed betwene them shal bee an estoppel afterwarde in an action vsed of the possession of the same auncester by whom theye claime Estoppell P 255. as in Assise of mortdauncester or cosinage as it appeareth in .4 Edwarde the seconde And note that as two or more shall enterplede that clayme as heires euen so shall anye other that clayme not as heires but by soome other tytle if it bee so that theire title affirme the kinges possession as take the case to bee this Land holden in chiefe is alyened to diuerse persons at diuerse tymes and thys founde bye office the kyng seiseth after cometh euery of the alienees praieth to make his fine to be restored now they shal first eÌ„terplede try which of their feffemÌ„ts oughte to take place are any of theÌ„ getteth restitucioÌ„ as appereth in 43. Trauers 25. li. ass So it is if anye of them come into the chauncery wytheout proces confesse thalienacion as it appeareth by the sayde bokes for by the confessioÌ„ the king is entitled against him that confesseth as well as if it had beene founde by office Trauers TRauerse for goods was at the coÌ„moÌ„ law but trauers for lands found by inquisition before theschetor is geueÌ„ by the statut made in the 34. yere of E. 3. ca. 14. which saieth in this wise Item accÌ„ est qÌ„ la ou terres ou tenÌ„ts soÌ„t seisies en la maine le roy ê‘ office del eschetor coÌ„teignoÌ„t qÌ„ le tenaÌ„t le roy ent fist alienacioÌ„ saÌ„s coÌ„ge le roy ouqÌ„ le tenaÌ„t le roy ê‘ seruice de chl'r morust ssiÌ„des terres tenÌ„ts auaÌ„tdits en soÌ„ demene coÌ„e de fee et soÌ„ heire deins age et puis la cause â—â—tifie en la chauÌ„cerie et celuy qui terres soÌ„t seisie veigne en la chaÌ„cerie et voet trauerser loffice qui fuit primes pris ê‘ maÌ„demÌ„t le roy que les dites terres ne soyent my seisables soit a ceo resceu soit le proces mauÌ„des en bank le roy a tryer et oustre faire droit This statut exteÌ„ds only to the offices takeÌ„ virtute breuis aut coÌ„missionis not to offices taken virtute officij And also by this statut though the trauerse were fouÌ„de for the partie yet might he not haue had iudgemeÌ„t til a proce deÌ„do ad iudiciuÌ„ had ben awarded And therfore was ther an other statut made in the 36. yere of the said king the .13 cha the tenor whereof is this Pour les greuouses complaintes queux le roy auÌ„ oye de son people de ses eschetoures de lour male port il voet ordeigne del assent auauntdit que terres seisies en sa maine par cause de garde soyent saluement gardes sauns wast ou destruction Et que leschetoure neyt nulle fee de bois veneson ne pessoun nauter riens mes respoignÌ„ au roy des issues et profits annuels proueignaunts des dits terres sans wast ou destruccioÌ„ faire Et fil face auterment et de ceo soit attaint soit reint a la volunte le roy et reÌ„de al heire ses damages au treble a sa proper suit sibien deins age come de pleine age eyent ses amis tanque il soyt deyns age la suite pur luy respoignants al dit heire de ceo qui serra issint recouere Et auxint dauters seisies en la main le roy par enquest doffice pris deuaunt lefchetor teignÌ„ mesmÌ„ cest ordiuauÌ„ce penance deuers leschetours Et sil eyt nul hoÌ„e qui mette challenge ou claime as terres issint seisies qui Leschetour maunde lenquest en la chancellary deins le mois apres les terres issint seisies Et que briefe luy soyte liuere de certifier la cause de sa seisine en la Chauncellarye illeoques soyt oye sauÌ„s delaye de trauerser loffice ou auterment monstrer son droite illeoques maunde deuaunt le roy affaire finall discussion sauns attender auter maundement Et en cas que ascun veigne deuaunt le chaunceller monstre son droyte per quel demonstraunce per bones euidences de son auncien droyte et bone tytle que le chaunceller per sa bone discretion aduis du counsayle sil semble que il besoygne auoire couÌ„sayle que il lesse et baylle les terres issint en debate al tenaunte rendaunt ent au roye le value si au roy appertient en maner come il et les auters chauncellers deuaunt luy ouÌ„t faits auant ces heurs des lours bons discretions issint que il face suerte que il ne ferra wast ne destruccion tanque il soyt aiudge Et que les dits eschetours preigneÌ„t tielx enquests en les bons vill ' per bons gents de ceo ouertment par endentures affaires enter les dits eschetours et ceux des eÌ„qÌ„sts come auter foits estoit ordeignÌ„ per estatuts Anno. 24. E. 3. Et si nul eschetor face au coÌ„trary de cest ordinaÌ„ce suisdit eit la prison des .ii. ans ouster ceo soit reint a la voluÌ„te le roy By the comon lawe beefore the making of these statutes a man had no other remedy to auoid a false office but onelye his peticion Howbeit in .24 E. 3. 24. E. 3. f 4. wylby saieth that if thoffice had bene found before coÌ„missioners or any other shanne theschetor the party should haue had his trauerse by thorder of the coÌ„mon law Parauenture he may be moued so to say because those statuts geue a trauerse onely to offices beefore eschetors making no meÌ„tion of any offices before any coÌ„missioners Also beefore these statutes if after lâ—uerie or Ouster le maine sued there had beene a newe office found whereby the king had ben entiled to reseise thereuppon a Scire facias according to the statut of Lincoln against the partie that had pursued the liuerie or Ouster le maine to come shew why the land should not be reseised the partie in that Scire facias might haue trauersed the office that was so newly founde as I shal more plainly declare when I come to that place Also Bab. sayd in the schequer chamber before al the Iustices An. 8.
Trauers 47. H. 5. that these statutes that geeue trauerse are only to be vnderstand where the king is entitled to the land but for a time as for wardship alienacioÌ„ wtout liceÌ„s and suche like But if his highnes bee entitled to the fee simple or the freehold there he that is put out by the office shal not haue his trauerse but is put to his peticion Tamen quere for though the first statut be this as Bab. hath sayd yet the second is not but is general therfore may bee extended to al offices what mater soeuer they conteyn Traâ—ers 37. as appereth H. 19 R. 2. wher it was fouÌ„d that one had encroched vpon the kyngs demeines which office in dede was false for that that the thing supposed to be encroched was parcel of his manor that was so preseÌ„ted no part of the kings demesnes in this case the partie being put out of that parcel of grounde by theschetor was receiued to trauerse the office yet thoffice entitled the king to the fee simple Also those statutes seeme not to geue trauerse but to him that is put out of possession by the office But the statut of .8 H. 6. ca. 16. alowethe any trauerse ê“fred by him that feeleth himselfe greued by any such enquest although he be not put out of possession by theschetor And the statut semes all so to allow trauers of an office taken aswell before coÌ„missioners as before the eschetor Howbeit the statut geueth no trauers but onely maketh thereof a rehersal These statuts that geue the trauerse seme to offre it generally to any man that wil desire it or that doth put challenge or claime to the lands wherof he is put out by any office Howbeit the expositioÌ„ hath ben otherwise that is to say that his challenge or claime must be such as the law will admyt allow for euery man can not trauerse that would or that maketh his challenge or claime for these statutes are intended wher the king is entitled by office onely for if his highnes be entitled by an other recorde beside the office and entitled as it were by a double mater of record the partye shal neuer haue his trauerse As take the case to be this a man is attainted of treson by act of parlement or otherwise by verdit and afterwarde it is found by office that the said person attainted was seised day of the treason coÌ„mitted of certaine lands which in dede were neuer his laÌ„ds but mine in thys case if I be put out of my laÌ„d by this office I can not trauers it Causa qua supra and yet I am a straunger to this record 46. E. 3. f. 17. 10. H. 6. f. 15. 4. E. 4. f. 27. as appereth in 46. E 3. 10. H. 6. 4. E. 4. But if therbe noe such recorde of attainder I shal be receiued well ynough to trauers the office aleginge first to enure mee to a trauerse that there is no such recorde of attainder as appeareth in .4 H. 7. Allso he that is founde heire by office shal not trauerse the same office that so findeth hym heire yf that part of thoffice that concernes the tenure in chiefe bee true 4. H. 7. f. 6. althoughe the reste of the office bee false and therefore if the kynges tenaunt dye seised his heire being of full age by a false office the heire is founde within age in this case hee can not trauerse thys office as appearethe T. 5. E. 4. 5. E. 4. f. 4. et 5. And the reason of it is beccause the heire can not salsifie thoffice that hee himselfe is to affyrme by his liuerie whenne hee shall sue it For thoughe hee woulde cause an other office to bee found according to the trouthe of the mater yet it were not to the purpose to help him for the best office shal be takeÌ„ euermore for the king that is to say that that geues his highnesse most auantage the heire driuen to sue his liuerie vpoÌ„ that office onely for seing the king is bound by an office as wel as is the heire it is reason if any be better for him thaÌ„ other that he be bound to that onelie not to the other the lawe presumes the one office to be as true as the other vntil such time a tryall thereof be made which triall cannot be by the heire for hee is bounden as I sayde beefore by the office that is found without any further choise hauing no prerogatiue in such mater and if he shoulde be receaued to his trauerse in this case then vpon the trauerse founde for him he should haue the lands out of the kings hands by an Ouster le mayn without any liuerie suing as lands that the king ought to haue seised which were incoÌ„uenieÌ„t For euery way the king ought to haue seised those lands against any that claimeth to be heire vntil such time as liuere be sued therof Like law it is where the kings tenant dieth seised of land in diuers couÌ„ties his heire being of full age in one couÌ„tie the same heir is founden wtin age in an other countie he is foundeÌ„ of ful age in this case the heire shal not trauerse thoffice that fouÌ„d him within age Causa qua supra for then for the landes in one couÌ„tie he should haue theÌ„ out of the kings hands wtoute any office or liuery suing Trauers 39. And this case appereth in .32 H. 6. But if an office find that my father held his lands of the king in chiefe by knights seruice wherin dede he held not of him in chief in this case I shal be receiued to trauerse this office For if I should sue my liuerie vpon the sone I should be coÌ„cluded euermore after to say but that the lands were holdeÌ„ in chief of the king for the cause I shal be receaued to my trauerse as euery strauÌ„ger shal bee in the like case for if my trauerse be true theÌ„ caÌ„ the king haue no cause to seise those laÌ„ds therfore not like the cases before remeÌ„bred as appereth M. 1 H. 7. Liuery P 10 The words of these statuts be that he whose laÌ„ds be seised shal trauerse or he that putteth challeng or claime to the laÌ„d so seised These words be not so genÌ„aly vnderstaÌ„d as they be spoken for most men vnderstande them that hee will challenge or claime but a terme of yeares onely shal not bee receiued to his trauerse where the kinge is entitled to the freeholde by thoffice as wher it is founde that the kings tenant is seised of certane landes and is dead without heire wherby the laÌ„des ought to escheate to the kynge cometh one and sayethe that hee is tenaunt for terme of yeares of these lands of the demise of a straunger without that that he that is supposed to bee the kinges tenaunt was euer seysed of these landes this trauerse lyeth not in his mouth for he
that hath but a chatell shall not be receiued in anye case to falsifie the record that geueth any man interest in the freehold although he be a straunger to that record Contrarie lawe is it of him that hathe a freeholde or inheritaunce in the lande for they shall trauerse the recorde in suche case Lyke lawe is it where the kynge is entitled but to the wardeshyppe of the heire of his tenaūt hee that is fermer of the dimise of a straūger shal not trauerse hys office althoughe the king be not entitled thereby to anye freeholde for it was not the minde of the makers of these statutes to helpe them that clayme but chatels which are accompted in law as nothing because they perishe and abide not Et de minimis non curat lex Howbeit learne what the law wil in these cases for I haue seene noe bookes of them The lorde in title of wardshyppe shal trauerse the office and yet hee claymethe but a terme of yeares in the lande as where it is founde by office that such a one helde lands of the king in chief and dyed his heire within age where in deede he holdeth no suche lande of the kynge but onelye of mee by knightes seruice in this case I that am lorde shall trauerse this office that is to saye shewe howe they bee holden of mee by knightes seruyce without that they be holden of the king as appereth in 1. H 7. Trauers 20. For ther it toucheth the lords inheritance in the righte of his seignory because he by the false office is to lose the profit that is presently fallen by reason of his seignorie it is reason he be receaued to trauerse the office But if hee were but lorde in socage he shoulde not be receiued to his trauerse because he therby can make no title to the wardshippe of the body 37. lib. ass P 35. and landes of the childe for it is a good generall grounde if the kynge be once seised his highnes shall reteine against all other that haue noe title notwithstandinge it be found allso that the kynge had no title but that the other had possession before him as appeareth in .37 lib ass where it was found that neither the kinge nor the partie had title and yet adiudged that the kynge shoulde reteine for thoffice that fyndes the kyng to haue a right or title to entre makes euer the king a good title allthough it bee false and his highnes therby maye take possession against any other that is seised of the landes and reteyne vntill such time as thoffice be trauersed by him that hath title and tried to bee a false offyce And therfore no man shal trauerse thoffice vnlesse he make him selfe a title And if hee can not proue his title to be true allthoughe he be able to proue his trauerse to bee true yet this trauerse wil not serue him As for an exāple it is foūd the kyngs tenaunt died seised of certayn lands that he held of the kynge in chiefe his heire beeinge within age where in dede he had made a feffement in his life time to an other of those landes it is no trauerse for the feffee to say he dyed not seised but he must first make him selfe a title by the feffement and for asmuch as it is founde that the landes are holden in chiefe if he wyl make his title good againste the kyng he must shewe fourth a lycence of alienation or a dispensation therof or els hee muste trauerse the tenure in chiefe as well as he shall doe the rest of thoffice otherwise his tytle is not good Trauers P. 44. et 46. Liuerie p. 18 as it appearethe in .36 E. 3. 3. H. 4. 6. H. 5. .3 H 7. f. 14. Howbeit Hussey holdeth opiniō that not mā may trauerse the tenure but the lord or the heire vnlesse his title be found by office but whether the lawe be so or not learn for as I take it the lorde and euery straunger that hath a tytle againste the kynge makinge his title shall trauerse the office before his title be found by office for when the trauerse is found for the partie his title nowe appeareth of recorde and by the trauerse found the office which was the kings title is vtterly destroyed gone so that now the king is not to make any liuerie of the lands to any person but onely to a moue his hands from the same with the meane issues and profites as one that had no cause to seise them And therefore euery man may enter now that will if he haue right or title of entrie to the lands for the king deliuereth them to no person certaine but onely ryddes his own hands of them as he that had neuer seised thē but otherwise it is where the king is to make liuerie for there his highnes must bee enformed certainly by mater of recorde who shal be his tenāt whoe it is that ought to receiue the liuerie at his handes least his highnes be deceiued in thadmitting of his tenant which ys ought to be a great mater towarde the lord therfore the cases be not lyke wherfore I think a man may trauerse by force of these statutes without hauing their title first found by office so be our bokes .36 E 3. 2. E. 4. f. 10. 16. E. 4. f. 4. Trauers 44. 43. li. ass P. 20. Howbeit 5. E. 4. fo 5. semes to weye to the cōtrarie hereof 12. H. 6. also where it is sayde that if it bee found that the kings tenāt died seised wher in dede he was iointly enfeffed with me now can I not trauerse this office except an other office were founde for me But contrarie lawe should it be if it had ben foūd by the office iointenant with hym for term of life wher in dede I was iointenaunt with him in fee simple in this case I may traūse thoffice because mētiō is made of me in the sayd office this boke case admitted to be law yet it varieth frō the case before remēbred of the strāger that trauersed thoffice for here thoffice is true and when it is found by office that he died seised this maye be allthough the sayde dying seised were iointlye with an other for any thynge that is expresselye founde to the certaintie and then the king here is to admit an other tenant as in the case of the liuerie before of whome as yet he hath no credible informacion that is to saye by mater of recorde and then it is lyke to the cases of tenant by the curtesie tenant in dower and the deuisee which in no wise can be admitted to their estats vnlesse mention be made of them in the office or some other office or mater of recorde found for them 9. H. 7. fo 24 Brief 618. as appearethe in 46. E. 3. M. 11. H. 8. and for none other reasō as I gather it but onely for that thoffice is
true they are to be admytted the kings tenants which can not be but by informacion by mater of recorde vt supra Then let vs resorte to the place we were at before that is to say no man may trauerse with the king vnlesse he make himselfe a good perfecte title as to say that the tenaunt whiche is supposed to dye seised did enfeffe hym or that a straunger was seised and did enfeff him without that that hee dyed seised And so note by the waye that he may conuey hys title aswel froÌ„ a straunger as from hym that is supposed to dye the kynges tenaunt as appearethe in .36 Trauers 44. Ed. the thirde and when he hath made thus his title then he must trauerse the kings title which is thoffice for it is not ynoughe for him to rest vppon his owne title al thoughe it be neuer so strong without aunsweryng the kinges title yea although it were good againste a comon persoÌ„ yet against the king it is not so wtout trauersing the office And therfore if he wil say that the tenaÌ„t in his life time did leuie a fyne vnto him of these lands Sur conusaunce de droit come ceo quil ad de son done by vertue wherof he was seised vntil such time as he was put out by this office praieth restitutioÌ„ this is no ple against the king yet this mater were a good plee in assise of MortdauÌ„cester brought by the heire for in that case he shoulde be stopped by this fine whiche is executed to say the contrarie therof that is to say that his father dyed seised without shewing howe his father gotte the possession againe sins the time of the fine leuied But yt ys no plee against the kinge for the kinge can not bee estopped namely in this case beeinge a straunger to the recorde And also the statut geues a trauerse and by this maner of pleadynge he takethe no trauerse Lyke law it is if it be founde by office that the kyngs tenaunt in chiefe enfeffed one B. without lycence comes one D. and sayeth that he dyed seysed ê‘ 46. E. 3 in Fits titulo Trauers P. 17. and his heire entred and enfeffed him by the kynges lycence this is noe plee without trauersing the feffemeÌ„t made to B. and yet against any comon persone it were a good plee but not against the king for his title must bee aunswered fully and that is the feffemeÌ„t these cases appeare 46. E. 3. 43. li. ass P. 25. Also it is not sufficieÌ„t to trauerse one of the kynges titles but he must trauerse them all for though the kings title that he is seised by be found not good yet if ther be any other record that makes the kinge a title wherby he may retayne the landes the partye must auoide also that title or els he gettes no Ouster le mayne but learne if ther be no suche recorde in Esse or beinge at the time of the trauerse tended hanging the plee vpon the trauerse a new recorde that sâ— to say an office is found which entitleth the kyng whether in this case the ê‘tie shal be driueÌ„ to trauerse this office or not ere he haue his Ouster le maine And it semeth he shal not for so he might be delayd of hys possession infinitlye by finding one office after an other wherfore this office found hangyng the trauerse shall be accompted in law as though it had bene founde after the partye had hadde his Ouster le maine in which case then the partye vpon the first trauers founde for hym shal be restored to his possession by an Ouster le maine and then after vpoÌ„ a Scire facias sued against him to shewe why these landes shoulde not bee reseised vppon this new office found for the king he shal be receiued in that Scire facias to trauerse this newe office Howebeit this auantage he winnes hereby that is to say he then trauerseth with the king keping still his possession where else he should trauerse being still out of possession And this case ye may finde .11 T 11 H 4. et M. 13. H. 4. Thus may ye see when a maÌ„ trauerseth with the king he must trauerse all the kings tytles that haue then their being by matter of recorde and is not bounden any further to answer for that tyme. Then let vs see howe the kinge shall replye vntoo this trauerse and in that it is to bee noted that the kinge hath a prerogatiue that a common person hathe not for his highnes maye chose whether hee will maintaine thoffice or trauerse the tytle of the partie and so takes trauerse vppon trauerse or when all his tytles bee trauersed his highnes maye choose to mainteine them all or else but one of them But then note that if hee mainteine but one that is to saie take issue but vppon one whiche is founde with him that tended the trauerse in this case the partie shall haue his ouster le main notwithstanding there bee no issues taken vppon the other titles but whether the kinge shall euer take auauntage of thother titles after or not this is to be sene and I thinke hee shoulde for though the other titles shall not in this case let the partie of his Ouster le mayne yet it seemes the kinge maye call the partie againe by a Scire facias to aunswere his other titles or else his highnes to reseise as I saide beefore for no nient dedire can preiudice the kinge nec tanta remun eratio like as it may doe a comon person And therfore seeinge hee did not renounce his other titles openlye nor expressely it seemeth his highnes by his prerogatiue shall haue aduauntage of them at anye other tyme when it shal bee his pleasure Trauers 15 And these cases ye maye see .13 Ed. 4 fo 8. 9. Hen. 4. et 4. H. 7. f. 4. Howebeit it appeareth in the saide booke of .13 E. 4. that after the kinge ioineth an yssue vppon a trauerse his highnes cannot in an other tearme wayue this issue and take a newe for so the partie might bee delaied infinitely of his right whiche shoulde bee as it were a wronge committed vnto the partie and the kynge by his prerogatiue maye doe no manne wronge but after issue ioyned hee maye demurre in lawe and waiue thissue for there is noe matter chaunged but the olde remainethe And by the demurrer the lawe presumeth that thissue was misioined and so myght bee a ieofaile and therefore his highnes maye demurre in lawe after issue but not change his issue and take a newe And note that if the partie take a trauers whiche is iudged insufficient in the lawe thys is peremptorie vnto him Trauers 24. he shall not bee receiued after to take a newe as it appeareth .40 lib. Ass Howebeit .14 E 4. fo 1. the contrarie oppinion is holden and that it is not peremptorie because it procedeth in the Chauncerie which is the court of conscience
his daie notwithstandinge the statute of .18 Henry .6 cap .6 whiche ordeines that all letters patentes made before the kings title found by inquisicion retourned into the Chauncerie or other matter of recorde shal bee voide For that statute also extendes but to landes or tenementes no more than the other statutes do so that the graunteâ— of the bodye or of anye other thinge whiche is no lande or tenement is good at this day before any office or inquisition thereof found And it is further to bee noted that this statute of an .18 Henry 6. makes not suche letters patentes good for anye time whiche hee graunted contrarie to the tenure of that statute but they be voide fourthwith And learne and enquire if at this daye within one moneth or .3 monethes after office founde and retourned the master of the kinges wardes and liueries with aduise of one of the counsell of the kinges courte of Wards and liueries made a lease of the wardes landes or of an idiotes landes being in the kinges handes for the time of the kinges interest in the same and after within the tyme appointed by the statute comes a stranger and trauerseth the office whether in this case he shall haue the landes to ferme or not And it seemes that no because this statut that geeues that power to the maister of the kinges Wardes was made long time since the statutes of an .8 or .18 H. 6. that is to say in the .31 yeare of king H .8 whiche statute is generall and no sauing or exception made of thether statutes before And then it is a general rule Quod posteriores leges priori bus contrarias abrogant And some thinkes at this daye for wardes lands or ideots landes there shal bee no lettynge of them to ferme to him that tended the trauers if they were letten before the trauers tended by the maister of the kinges wardes but of other landes it remaines as it was before the making of this statute of a .31 Henry .8 and note that if the kinge seise not for anye Wardshippe but onelye for primer seisin because the heire is of full age if a straunger in this case wil trauerse it is to litle purpose For if the kinge by and by after will make liuerie to the heire the trauerse is become voide as appeareth 1. Henry .7 fo â— for the kinge in that case hathe no cause to reteine the lande but to deliuer the same to him in whoe 's right he seised being able for it and hee that tended the trauers is at no mischiefe for hee may nowe after this liuerie pursue for his remedye against the heire and if it shoulde tarrye in the kings handes for the trauerse sake his highnes shoulde then haue all the profites if the trauers were founde with him for al the time that the saide trauers did depende whereunto hys highnes hath no right but onelye the heire and therefore it seemes there shall bee no trauerse but where the landes is to abyde in the kinges handes for a certeine tyme as for Wardshippe fine for alienacion or suche lyke But if hee that tended the trauerse bee founde heire by office and is to haue liuerie of that lande as well as the other that was first founde heire otherwise it is for the reason made beefore And so of an enterpleder For in that case the kinge is bounde to make the liuerie too him that is tried rightfull heire but not so in the case of a trauerse tended by a straunger whiche claimes not as heire for hee is to haue noe lyuerie but only an ouster le maine by whych ouster le main the kinge deliuereth nothinge but leaues his owne possession as one that hath no right to keepe the possession anye longer And it appeareth sufficientlye that hee hadde no right to keepe it after the tyme the heire that shoulde haue it was of full age Wherefore a straunger in that case cannot trauerse for so twoe that hadde no right by trauersinge together might keepe the thirde that hath right from his possession whiche was neuer the meaninge of the makers of the saide statutes And notwithstanding that this booke 1. H. 7 bee that after the trauerse and before the ferme graunted the liuerie was made yet that makes no difference for whether the ferme were graunted before the lyuerie or after when the trauers is become voide by the liuerie the ferme whiche dependeth vppon the same is also voide as mee seemeth And note also that the saide statute 1. Hen. 8. whiche geeues three monethes for hauinge the landes to ferme makes no mencion of the tresorer of Englande but onelye of the Chaunceller so that for anye thinge that ys to bee letten by force of that statute it must bee done onlye by the Chauncellour and not by the treasorer As it shoulde seeme as well of offices retourned into theschequer as into the Chauncerie and therefore within the moneth after an office retourned into theschequer the tresorer maye let the landes to ferme to him that tendes the trauerse accordinge to the saide statute 8. H. 6. But if it bee to let after the moneth the Chaunceller of Englande must doe it as it should seeme And note also that by a statute made anno 1. H. 8. cap. 11. Any person that sued his liuere in time of king H. 7. vppon anye office that founde hee helde in chiefe where in dede he helde not in chiefe whiche saide offices were found by the procurement of Empson and Dudley in the tyme of the said late kinge maye trauerse thoffice in like maner and forme as he might haue done before the liuerie sued if it be so that he be now seised of the same landes sauing that hee shall not bee restored to the meane issues and profites This statute seemes not to extende to the parties heires that hadde liuerie but onelye to the partie him selfe Quere hoc And note that in the court where thoffice is first retourned into there I shall tende my trauers as if it bee retourned into the Chauncerie then in the Chauncerye and if in the Eschequer then in theschequer as in deede all offices virtute officij are retournable in theschequer onelye and such as bee virtute breuis vel commissionis bee retournable in the Chauncerie And now by the Statute of .33 H. 8. cap. 22. No eschetour maye sitte virtute officij onely to fynde anye office of landes holden of the kinge of the value of v. li. or aboue vppon paine to forfait v. li. Monstrance de droit THe Statute of an .36 E .3 that geeueth a trauerse saithe in this wise Et sil eit nul home qui met challenge ou claime aus terres issint seisies que leschetour maunde lenquest en la chauncellarie deins le mois apres les terres issint seisies et que briefe luy soit liuere de certifier la cause de sa seisin en la Chancellarie et illeoques soit oye sauns delaye de
not founde by office as wel as hee shoulde in the like case if he were to take a trauerse But otherwise it is where the kinge is entitled by an other recorde beside the office whiche is not trauersable there hee shall not bee receiued vnlesse the parties title appeare by mater of recorde And note that if the kynge haue coÌ„mytted the lande ouer he that sueth his Monstrans de droit muste sue a Scire facias against the committe euen as hee shoulde vppon a trauerse and as for takynge the landes to ferme or for suynge the sayde Monstrans de droit durynge the tyme the heire in whose righte the kyng hathe seised is wythin age Like lawe is to be vsed as is beefore declared vppon the tytle of Trauerse Peticion PEticion is al the remedie the subiect hath wheÌ„ the kyng seiseth his land or taketh away his goods from him hauing no title by order of his lawes so to do in whyche case the subiect for his remedy is driuen to sue vnto his soueraine lorde by way of peticion onely for other remedye hathe hee not as it hath ben sufficiently declared before vpoÌ„ the 15. cha of the kings prerogatiue And therefore is his peticion called a peticioÌ„ of right because of the righte the subiect hath against the king by the order of his laws to the thiÌ„g he sueth for And this peticion may be sued as wel in the parlemÌ„t as out of the parlemeÌ„t if it be sued in the parlemeÌ„t then it may be enacted passe as an act of parlemÌ„t or els to be or dred in like maner as a peticioÌ„ that is sued out of the parlement which is in this maner first after the peticioÌ„ is endorsed it shal be deliuered to the ChauÌ„celer of EnglaÌ„d theÌ„ shal ther be a coÌ„missioÌ„ awarded out of the chauÌ„cerie to find the righte or title of him that sueth the peticioÌ„ which being found by enquest then he may enterplede withe the kynge and not before Trauers 51. as appeareth in 18. E. 3. fo 15. 4. E. 4. f. â— 11. H. 4. f. 5â— et 10. H. 4. And if vppon the sayde coÌ„mission no title be found for the partie but onely for the kinge yet the peticion shall not abate but the party shall haue a newe commission in that case for the peticion is butte as voide vntill the parties title be founde by office Peticion 11. and is not to be sayde depeÌ„dinge vntill that time as appearethe in .3 H. 7. Quere for he sued a newe peticion in that case And note that when the peticion is endorsed the partie muste followe and pursue the same according to the endorsement or otherwise his suite is void because the endorsemente is his warrant ther in PeticioÌ„ 1. 3. 18. as appearethe in 18. 22. et 46. E. 3. and therefore sometime billes of peticion be endorsed and sent into the kyngs benche or common place and not into the Chauncerie and that groweth vppon a special conclusion in his peticion and a speciall endorsement vpon the same for the generall conclusioÌ„ is que le roy luy face droit et reasoÌ„ which is as much as if he had prayed restitucion of that that he suethe for And there vpon such a generall conclusion the endorsemente is Soit droit fait as ê‘ties which euer is deliuered vnto the ChaÌ„celler as is declared But if the conclusion in the peticioÌ„ bee speciall and the endorsement special then they shal procede accordinge to the sayde speciall endorsement As for an exaÌ„ple the kinge recouereth in a Quare impedit by defaute against one that was neuer summoned in this case the partie that lost can not haue a writ of disceit vntill such time as he haue sued vnto the kinge by peticion for the sayde wrytt and if in his peticion he conclude and praye that the kynge do him right generally nowe the iustices before whom the recouerie was had can not examine the deceit without an originall writ directed vnto them for that purpose and yet before he obteined that writ his right shal be enquired of by commission but if he conclude specially in his peticion that it maye please his highenesse to commaunde the iustices to procede to the examinacioÌ„ which peticion is endorsed accordinglye theÌ„ may they do it wtout any such writ or coÌ„missioÌ„ to be sued as appeareth in .10 H. 4. Trauers 51. So euer the folowynge and pursuynge of the thinge muste bee accordinge to thendorsement for howsoeuer the conclusion in the petition be the endorsement may be alwayes as it shall please the king as me semeth and accordinge to that the party must pursue it And note that in euerye peticion where the kynge hathe graunted the lande ouer to an other a Scire facias muste bee awarded against the patentee like as it shall be wheare a trauerse or MoÌ„strans de droit is tended whiche patentee yf he haue not the whole fee simple but that ther is a reuersion in the kynge or that the kynge is bounde to warrauntie when he appeareth vppon the Scire facias he maye praye a write of Searche to bee awarded into the tresorie to search what theye can finde for the kynges title as appeareth in .9 E. 4. f. 5â— where Sottle sayethe that euerye peticion muste make mention of al the kyinges titles for if it be found by the write of searche that anye be omitted the peticion shall abate the reason of it is because that yf on this sute of peticion the kinge take an issue with the partie which is fouÌ„d against him his highnesse then shal be concluded for euer more to claime by any of the points conteyned in the sayd peticion And here with agreeth the boke T. 16 E. 4. 16. E. 4. f. 6. But quere if search shall bee graunted vppon a trauerse or Monstrans de droit because the statute of An 14. E. 3. cap. 13. that concerneth search doth speak only but of a peticioÌ„ but to that it maye bee sayde that at the time of making of the statut ther was noe trauerse geeuen And Skrene sayeth .7 Peticion .6 Henry the fifth that search shal not bee granted but where one suethe by peticion And note allso that in euerye peticion whether it bee sued in the parliament or elles where or whether the landes remaine in the kinges handes or not in the kins haÌ„ds but be granted ouer yet writs of search shall bee awarded to search the kinks title ere the party shal eÌ„terplede with the king Also 〈◊〉 appereth in the boke of .16 E. 4. beefore remeÌ„bred the inâ—â— a peticioÌ„ the kinges pateÌ„tee had ayd of the king there appereth also that if the king be not entitled by any mater of record but without any title do entre into my land wherebye I sue vnto his highnes by peticion that in thys case no search shal be grauÌ„ted because no title caÌ„ be entended for the kinge in suche case
Thus haue I opened declared the maner of suing a peticion but to declare specially where yt lyeth where not it were a long mater to entreate of But generally by generall rules a man may brieflye declare it that is to say in all cases where the partie hath a right against the king yet no trauerse or Monstrans de droit will serue ther is hee driuen to his peticioÌ„ As for an exaÌ„ple wher the king is entitled by double mater of recorde Like law is where he is entitled by a record not trauersable as take the case the kynge recouered by assent and wythout title a straunger that hathe good title shall not salsifie this recouerie by a trauerse or MoÌ„strans de droit but is driuen to his peticion so it is where the kinge recouerethe by erronyous proces the partie shall not haue a write of errour vntill he haue sued by peticion for it So likewise it is if landes are holden of mee bye knightes seruice a straunger brynges a Precipe in capite of those lands against my tenant recouereth by defaut although by this recouerie I am not put out of possession of mye seignorie but that the tenaunt holdethe of me as hee did before and also of the kinge by conclusion yet in this case if the recouerer dye his heire wythin age and the kynge seisethe the ward I am driuen nowe to my peticion for the ward 17. E. 3. f. 36. as appearethe in .17 E. 3. for thys ys an other thinge than euer I was seised of Allso it is a generall rule that where a straunger that hathe title can not entre vpon a coÌ„mon parson but is driuen to his action there he caÌ„ haue no remedy against the king but only a peticioÌ„ as take the case to be It is found by office the kings tenant in chiefe died seised his heire within age where in dede the sayd tenant had nothing but by disseisin done to me I suffred him to die seised wtout any claim made in this case I get no remedy by Monstraunce de droit or trauerse but am driuen to mye peticion And so in all cases like wheare mine entre should be tolled if the lands were in the hands of a commoÌ„ person as appeareth in 8. 9. H. 4. M. 7 H. 4. fo 27. 36. et 41. T. 9. H. 4. f. 7 et 11. Also where as the kinge doth entre vpon me hauing no title by mater of recorde or otherwise and put me out and deteines the possession froÌ„ me that I can not haue it againe by entrie without suite I haue then no remedie but onely by peticion But if I bee suffred to entre mine entrie is laweful and no intrusion or if the king graunt ouer the lands to a straunger then is my peticion determined and I may nowe entre or haue mye assise by order of the common law against the said strauÌ„ger being the kings patentee as appeareth in 4. E. 4. f. 23. Assise P. 156 M 24. E. 3. f. 34. And a great difference is betwene this case the case wher the king is entitled by double mater of record or suche like for in these cases notwithstanding the graunt made ouer by his highnes of the lands to an other yet am I driuen still to my peticion to the king and haue no other remedye but it is not so in this case and the reason of this diuersitie is because that when his highnes seiseth by his absolute power contrarie to the order of his lawes although I haue no remedy against him for it but by peticioÌ„ for the dignities sake of his person yet when that cause is remoued a comon person hath the possession then is mine assise reuiued for now the patentee entreth by his owne wronge and intrusion and not by anye title that the kynge geeueth hym for the king had neuer title ne possession to in that case and therfore not lyke the other cases beefore where the kynge hath the landes by the order of his lawes that is to saye by doble mater of record or such other like Trauers 134 And this apperethe in 4. E. 4. f. 21. et 25. et in 24. E. 3. f. 34. et 33. li. ass Like lawe is if I haue a rent charge oute of certaine lande and the tenant of the land enfeffed the kinge by dede enrolled nowe during the kinges possession I must sue by peticion but if his highnes enfeffe a stranger I may distreine for my rent vpon the stranger and so is it in all the cases before where a man may haue his trauerse or monstrance de droit if the laÌ„ds be once out of the kings hands the party theÌ„ may haue his remedie that the comoÌ„ law geueth him for in all these cases the peticion did lye onely for the dignitie of his person and not for the right that he had to the possession of the thing But if the kinge purchaceth lands holden of mee learne what remedie I may haue for my seignory during the kinges possession for wilby sayeth in 20. E. 3. that I haue no remedie in the case and if his highnes make a feffmÌ„t of these lands to hold of him self Assise 124. yet can I not distreine for my seignorie like as I might do in the case of the rent charge before bicause there can not bee ii seignories of one self land but am driueÌ„ to my petitioÌ„ in this case PeticioÌ„ 1â— for the king vpon this feffmÌ„t by order of his lawes shoulde haue reuiued the seignorie in mee that is to say to haue aâ—de the feffee to hold of me of whome it was hold before as appereth in 46. M. E. 3. 7. E. 3. f. 59 and so hathe it ben vsed alwayes where his highnes hathe lands by forfaiture of treson holden of a coÌ„mon person if he make a feffement of those lands it must be Tenend of them that they were holden of before as I haue opened vpon the xii chapter of the kinges prerogatiue And so it is where the time is coÌ„cluded to his highnes for a mortmain But that is geuen by the statut de religiosis Also if the kinge disseise my tenaÌ„t during this possessioÌ„ I haue no remedie for my seignorie but only by peticyon if the kinge eÌ„feff mye tenaÌ„t to hold of his highnes yet haue I no remedy for my seignorie but only by peticion But if one holde certeine landes of mee which are falsly found by office to be holden of the kinge in Capite and the king seiseth them enfeoffeth my tenaunt thereof to holde of his highnes in this case I may nowe distreine for my seignorie am not oute of possession Auowrye 113. Assise 122. 124. these cases appere .20 32. et 46. E. 3. fo 1â— the reason of the diuersitie is this because that in the laste case my seignorie was neuer suspended but euer more had his being and that
notwithstandinge thoffice for it did not appertaine to mee to trauerse thoffice and discharge the tenure but that matter was left to my tenant to doe and seeinge hee did it not hee hath charged him selfe of a tenure by way of conclusion to the kinge as well as to mee but it is not so in the other case Also it is to bee noted that if the kinge seise landes in title of Wardshippe and make a feffement thereof in thys case the heire neede not to sue his peticion but may haue a scire facias to repele the said letters patents because the king was deceiued in his grant as it appereth T. 7. H. 4. fo 17. M. 21. E. 3. fo 50. For there the king himselfe is in possession still till liuerie be made so the heire there hath no cause to sue by peticion the kinge is bounde to deliuer it vnto him in whose right he seised Also note that sute by peticion can be to none other than onely to the king for no such sute shal be made to the Quene or to the lord prince for these parsonages haue no such prerogatiue as it appeareth 10. 11. Trauers 51. H. 4 et 10. et 14. E. 3. but though the kinge hee seised sometime in an other bodies right and not in his own Peticion 4 Voucher 135. Scire facias 135. yet the sute that is to be made must bee by petition as well as if hee were seised in his owne right as appereth .10 H. 4. And as I said in the beginning a manne shall haue his peticion for goods as well as for landes as where theschetour seyseythe goodes of one that is outlawed and hathe accoumpted for them in the Eschequer and after thutlagarie is reuersed in this case the partye hathe no remedy for his goods but onelye by peticion Peticion 8. And this case you shall see in .34 H. 6. Howbeit Catesby Hussey hold oppinion to the contrary here of M. 1. Peticion 10 H. 7. And learne if a peticioÌ„ be sued for lands and the plaintife be nonsute whether it be paremptorie or not beecause some saye that that sute is as it weare hys write of righte PeticioÌ„ 11. et 17. and hereof see the booke 11. H. 4. .3 H. 7. ¶ Where a Scire facias must be sued before a lyuerye or Ouster le maine IF the king be seised of a ward and grantethe yt durante minore etate now when the heire commeth of full age and sueth his general liuerie he nedeth not to sue a Scire facias against the pateÌ„tee because his estat is determined by the ful age of the heire and yet it may be that the heire had forfaited his maryage vnto the patentee and then hee hathe good cause to reteine the lande til he bee satisfied of the forfaiture But the lawe shall not entende anye suche forfaiture to bee and therefore ther nedeth no Scire facias be sued Like law is it as semeth if the king graunt the wardshyppe for no time certaine but quamdiu in manibus nostris fore contigerit if he make a special liuerie vnto the heire beeinge within age there needed no Scire facias to be sued so is it where the grant is but dutante beneplacito nostro but if the kyng haue land in ward and enfeffeth therof a strauÌ„ger some think the heire nedeth not to sue any Scire facias against the feffee but at his pleasure and some other thinke he muste beccause his estate is not determined by the full age of the heire as it is in the firste case I put before And it may be that an auncester collaterall vnto the childe hath released with warrantie whiche is descended which the feffee might pleade if he came in by Scire facias or els by the liuerie she saide warrantie is vtterly lost these cases appeare P. 7. H. 4. f. 27. 30. 43. 10. M. 12. E. 3. 50 2. H. 7. f. 2 H. 6. f. 20 M. 1. H. 7. f. 11. .5 E. 4. f 3. Howbeit me thiÌ„ks it were wisedome for the heire to sue a Scire facias to th entent that he therebye with the kinges helpe mighte repelle the sayde letters pattents and bringe them as it were out of his way whiche thinge hee may â—oner bringe to passe by the kinges sute than by hys owne Allso the heire when hee sues liuery nede not to sue anye Scire facias againste him that hathe the landes to ferme vppon a trauers as appearethe in 1. H. 7. Liuery P. 18 for hee hath noe terme certaine in the land but donec discussum fuerit whiche woordes are beecome voyde after the heire is of full age because it can not be then discussed with oute preiudyce of the heire and therefore voyde Then further let vs see wheare hee that sueth by peticion or that tendeth his trauers or Monstrans de droit shall sue a Scire facias and where not And as to that it is a generall rule that yf the kynge haue graunted the wardshyp of the landes ouer for any terme certaine or granted any other certaine estate in the landes he that sueth his peticion Monstrans de droit or trauerse muste sue a Scire facias againste the kinges patentee in suche case Trauers 25. but hee nedeth not to sue any agaynste the heire in whose righte the king is seised of the lande because he that sueth doth not pleade withe the heire but onelye with the kynge or such as hathe his intereste as appeareth in 37. lib. ass Like law it is if the kyngs grant be but durante beneplacito nostro or that it bee made hangynge the trauerse peticion or Monstrans de droit in this case hee that suethe neede not to sue any Scire facias And these cases appeareth in 5. E. 4. f. 3. 13. E. 3. Brief P. 260. And note that if the kynge graunt the wardshippe to one whiche graunteth it ouer to the husbande and to his wife then must there a Scire facias be sued bothe againste the seconde lessee and the patentee but the wyfe nede not to bee named in the Scire facias For there lyethe no voucher in this Scire facias Howebeit in a writ of garde she shoulde haue bene named but also of the voucher Brief 618. and this case is adiudged 46. Edwarde the thirde and yet neuerthelesse Neuton is of oppinion in S Henry the sixte f. 17. that no Scire facias shall bee awarded againste the lessee in this case but onelye against the kings patentee And learne if the kinge grant but the bodie alone whether there nede anye Scire facias to bee sued or noe Also note this case that is to say where the king seised forwardshippe beefore office and made a graunt ouer and after office was founde wherbye it appeared that the childes father in whose right the kinge seised Assise P. 156 was but tenaunte for terme of life the
in cancellarie noÌ„ obstante quadam ordinatione nuper per dominum regem facta de terris tenÌ„ in manum suam per ministros suos capt ' non liberand ' nisi per ipsum dominum regem prout continetur in quadam diuidenda inter ipsum regem cancellarium facta Cuius vna pars penes cancellarium remanet Statutum de escaetoribus editum .29 E .2 Also a yeare before the makinge of this statut was there an other statut made entitled articuli super cartas which in the 19. chapiter therof saith in this wise De rescheiue la ou lesche tour ou le vicont seisont en le main le roy terres la ou il nad reson de seiser et puis quant troue est la non reson les issues de mesne teÌ„ps ount este ceo en arrere retenê° et nad rendus quant le roy ad le main ouste voet le roy que desormes la ou terres sont issint seisies et puis le main ouste pur ceo que il ny ad raison de seiser ne tenir soient les issues pleinment reÌ„dus a celuy a qui la terre demurt et auoit le damÌ„ resceu By this statute it plainly appereth how that before the making therof therewas no ouster le main graunted vna cum exitibus although it might neuer so plainly appere that the kinge had no cause to seise Howbeit that mischief is now remedied by both these statutes Also by the one of these statutes Also by th one of these statutes it appeareth that the Ouster le maine in suche case might not be graunted without suinge to the kinge himselfe which is also remedied by this statut de escaetoribus which statute although it make no mencion of liueries but onely of ouster le maine yet lyueries are taken to bee within the compasse and prouision of the same And where the letter goeth onelye to the cases where the kinge seiseth before office 9. E. 4. 54. and after warde thoffice that is founde doth giue his highnes no title that there the party may haue his Ouster le maine makinge no mencion of an Ouster le maine to be graunted vppon anye peticion trauerse or Monstraunce de droit as in deede a trauerse was not in vre at that time yet men by an equitie extende this statute de Escaetoribus bothe to the one and too the other because the statute is beneficiall as it appeareth 9. E. 4. and in diuers other bookes And Yeluerton there saieth that if after liuerie or ouster le maine an office bee founde whiche entitleth the kinge of a title growen vntoo him since the liuerie or ouster la maine granted that in that case this statute notwithstanding the kinge may reseise wtout a Scire facias for the woordes are onelye where a record or an office is founde that maintaineth the title whereby the kinge first seised Howbeit manye holde oppinion againste him and saie that it was in the selfe same mischiefe the statute was made for tamen quere for this statut de escaetoribus shoulde seeme to be meant onely to remedy that the was a mischief at comoÌ„ law before the making of the said statut as where there was no record found at the time of the liuerie or ouster le maine sued to let or hinder the partie from suynge of theire saide liuerie or ouster le maine but afterwardes was there found such a record now this notwithstandinge would the king reseise putt the partie from his possession wtout answer or any proces sued against him wherupon he might answer so driue him to sue by peticion make him render all the mene profite which was a greate mischiefe hinderance to the partie for remedie whereof this statut was made but the like mischiefe or hinderance is not where the kinge is entitled by a title groweÌ„ since the liuerie or ouster le maine for here the partie shall not aunswere the profites but froÌ„ the time of this title growen And also the kyng doth him no wronge for it standes with and affirmes the liuery or ouster le maine the king thereby makes not that party an intrudor as he doth in the other case if the said Yeluertons opinion should not be lawe they woulde make that the kinge could not seise vpon an alienacion wtout licence made and found by office since the liuerie or ouster le maine sued which were no reson therefore I think the saide Yeluertons opinion should preuaile in this case And to the same intente effect be those bookes that I can fynd for I can finde no Scire facias sued but in cases of a title growen before the liueries or ouster le maine therefore in a Scire facias sued vpoÌ„ this statute against the party that had liuerie or ouster le maine beeing tenant of the land at the time of Scire facias sued he was denâ—ed in the selfe same plight course against the king as he was at time of the suing of his liuerie or ouster le main for where he had made a feffement by licence taken an estate againe iointly to him other yet this scire facias dyd lye against him soly did not abate for the iointenauntes So was it aiudged in a scire facias sued vpon this statute the the partie must maintaine the title whereby he hath liuery or ouster le maine must maintaine it so that it is was a good title sufficient to haue liuerie vpoÌ„ notwithstanding any recorde that is now found as take the case to bee this one hath liuerie as sole daughter heire after by office it is founde that she hath a sister which ought to haue had liueri with her wherupon a scire facias is sued against the partye that had liuerie to come shew why the land should not bee reseised if she come will saye that they be daughters by seueral ventres that this lande was geeuen to her father mother in speciall taile so ought shee to haue the liuere as she had the is to say soly this plea wil not serue her because it doth not mainteine the liuerie for how could she haue had liuerie soly vnlesse this matter had bene so found by office For if this second office had appeared before the liuerie she coulde not haue trauersed it vnlesse she had made title and then title can shee neuer make againste the kynge as heyre vnlesse the saide title bee firste founde by office Wherfore no more than she might trauerse the said office if it had bene found before liuerie Trauers 31. no more may she trauerse it now in this scire facias after liuerie as it appereth 30. li. Ass and so note that the recorde can not bee trauersed in this scire facias in no case vnlesse it were trauersable before liuery or ouster le maine Also in
the new Natura breuium fo 26â— and in .5 H. 5 H 5. H. 5. I finde a scire facias sued vpon this statute against him that had liuerie because an office hath found an other to be nerer heire to the auncestour that dyed than was hee that sued liuerie So alwaies as farre as I can finde it is sued vppon a recorde the disproues the liuerie or ouster le maine and not vpon any that affirmes it whereby I suppose that yeluertons opinion is lawe as is beefore declared And it semes that by this statute the king must sue a scire facias al though the recorde or title that is found for him bee founde within a yere after liueri or ouster le maine sued And lerne whether Assise lye against the eschetour that sesseth without a scire facias in cases where a scire facias should be sued For by the sta of W. 1. ca. 24. assise lieth against him in cases wher he seiseth anye landes by colour of his office wtout speciall warrant or commaundement or certeine authoritie that be longeth to his office so to doe And learne whether the king by that seisure hath any possession for if the king seise without a scire facias where he ought to sue a scire facias the partie hath no remedy but to sue vnto him by peticion euen as he should do if his highnes had seised any other lands of his without cause Howbeit the king by such a reseiser vndoeth not the parties possession so that he shal bee saide an entruder from the time of the liuerie or ouster le maine sued as it doth in case the reseiser had bene vpon a scire facias wherfore in such case although the partie cannot be suffred to recouer his possession againe by entrie vppon the king yet when the kinge graunts it ouer he may now enter or haue assise Trauers 26. as appeareth .24 E. 3 fo 34. et 43. li. Ass Also note that this statute that geeues the scire facias extendes but vntoo him or them haue liuerie or ouster le maine or anye other claiming by them For if after liuerie on ouster le maine sued a stranger by an eigne title in disaffirmyng the tenaÌ„ts interest enter as heire vpon him or recouer by assise of mor dauncester or any other accion auncestrell against him is entred into the land as heire nowe because the landes are holden of the king in chiefe his highnes may seise the saide land for primer seisine or title of Wardshippe as the case doth require without any scire facias 21. E. 3. fo 1. as appeareth .21 E. 3. For it is not to be said now a reseiser because against hym there was no seiser made of the saide landes before And lerne enquire if he that missueth the liuerie be within age whether the king shal reseise in that case as he shall doe if it were missued by one of ful age as take yâ— case to bee landes are holden of the kinge in Socage in Capite now the liuerie is sued within age that is to saye at the age of .14 yeres whether in this case the missuing of the same shall be a cause of reseiser or not T. 12. R. 2 see the booke thereof 12. R. 2. The wordes of the statute be further that if any record be found in the tresorie or elles where that vpon this record a scire facias shall be awarded But that is to bee vnderstande in this maner that first the transcript of the said record shal be by writ remoued into the Chauncerie and then out of the Chauncery shal there be a scire facias awarded not out of the tresory as it appeareth .21 â—â— li. ass lib. Ass Issues mesne NOte that if the king haue a title right or interest to any lands or tenements his highnes wheÌ„ he seiseth shal be aunswered of all the mesne issues and profites from the time of his sayd title right or interest growen and whether it be a right of entre or title of entre it maketh no diuersitie in the kinges case as for an example the king entreth for a condition broken his highnes shal be answered of all the issues and profites sins the condicion broken and yet in that case a common person shal not haue the issues and profites but from the time of his entrie Like law is it if the kinges tenaunt aâ—en in mortmain and the kinge entreth but otherwise it is if he entre for mortmain in lands not holden of him vpon a title deuolued vntoo his highnes in defaut of other lords And these cases appere H. 19. et 41. E. 3. fo 21. 19. E. 3. Entre coÌ„g P. 39. The same law is it where his highnes is entitled to seise for that the lands are of his foundatioÌ„ and aliened contrarie to the statut of west .2 ca. 41. which geues the writtof contra formaÌ„ collationis H. 46 E. 3. Forf P. 18. in this case his highnes shal be answered of all the mesne issues growen from the time of the alienatioÌ„ as appereth H. 46. E. 3. And note also that if the king make any graunt which is not sufficient in the law or is deceiued in the making of the same by reason it was made vpon a false suggestion in his case if this highnes doth resigne this graÌ„t adnull it iure regis as he may he shal be then be answered of all the mesne issues profits which were lost by reason of the sayde insufficient graunt as appereth .11 H 4. But if his highnes bee entitled to any lands nomine destriccionis there his highnes shall not bee answered of the profites but from the finding of that title 11. H. 4. f. â— as in case where the kinges tenant in chief alieneth without licence and an office is therof found in this case his highnes shal not be answered of the profites from the time of that alienation but onely from the tyme of the findinge of the office or from the tyme of a Scire facias returned wher the alienatioÌ„ is of record P. 8. e. 4. f. 4 and herof see the booke 8. E. 4. Like law is where his highnes is to seise the lands of his widow that hath maried her selfe without his licence 40. li. Ass Gard P. 36. And note that where the king is to be aÌ„swered of the mesne issues and profits perceued and taken of any landes which haue come to soÌ„dry hands sins the kings title first growen to the same there euery one of them that haue sondrely so perceiued and taken the profits shal answer for his owne time and not one for all as it appereth in the boke of 46. before remembred And note also that by the statut of w. 2. ca. 32. it is prouided that if any spiritual man bring any real action and recouer that the land recouered shall remayne in the kinges hands vntill such time as it be sued out of his hands by him that recouered or els by the chiefe lorde and in the meane time the shiriue shal auÌ„swer the kinge in the eschequer of the profites by which statut whether the collusion bee found or not found yet the king shal haue the meane issues as it is thought 20. H. 6. 20. H. 6. f. â— So it is in a writ iudicial of deceite brought against any the king shall haue the issues growen from the time of the first iugement vntill iugement be geueÌ„ in the sayd writ of disceit ¶ Some tymes the kynge recouâ—eth of the issue in the allowance of an estraunge tytle as yf the husband beynge the kynges tenant vpon a false suggestion purchaseth lycence to alieÌ„ to take estate to him to his wife so doth afterward dyeth the wife holdeth her in by title of Suruiuor occupieth nowe vpoÌ„ a Scire facias against the wife his highnes shal bee answered of all the meane issues since her occupiynge of the ii parts of the land and the thyrd part he recopeth and alloweth for her dower .40 li. Ass P. 36. ¶ Note that in a writ of disceit vpon a recouery in a Preeipe quod reddat of land where the proces was a graÌ„d Cape 40. Li. Ass Gard. P. 1. if the pleintyfe recouer he shall recouer the land and his damages but not the issues of the land synce the fyrst iudgement because the kinge shall haue them by the graunde Cape and the shirife accomptable of theÌ„ quod vide titulo disceit in Fitz P. 33. 46. 7. 32. Contrarie lawe is it if there lie no grand Cape in the action as if the recouerie be in a Scire facias as it appereth titulo Disceit in Fitz P. 36. 27. Finis Diuers other prerogatiues therbe which the kiÌ„g hath by the order of the comoÌ„ law that be not wtiÌ„ this statute coÌ„priÌ„sed a great part wherof vnder the title of Prerogatife master Fitz herbart hath most diligeÌ„tli noted in his great AbridgmeÌ„t so well ordred placed there that I doo of purpose omit to reherse them here The rest woulde require so longe a serche that oneles I had gathered and noted them al redie as I haue not doÌ„e in dede I should be faine to peruse the hole bodie of the comoÌ„ Lawes for the knowleg therof wheruntoo time seruethe mee not wherefore at this time myne intent is not to medle with them Imprynted at London in flete strete within temple Barre at the signe of the hand starre by Rychard Tottel An. 1567. Cum priuilegio
time the woman may aske her dower in the chauncerie and when she is endowed and loses her dower vpon a recouerie had against her by an eigne title how she shal be recompenced If the husband haue land in diuerse counties wherbie after his death there be awarde seueral writz of Diem clausit extremum in to euerie of those counties she shal not be ēdowed vntil such tyme as all the said writs be returnd again in to the chancerie as it maie apere in .16 E. 3. H. 16. E. 3. in Fitz ti Liuere P. 29 And note that when she is endowed in the chancerie and afterwardes loses by a recouerie vpon an eigne title then she hath none other remedie but to cause the record of the same recouerie to be remoued in to the chauncerie and vpō the first record wherby yt apered she had dower and this other record of the recouerie she shal haue a Scire facias recitīg both the recordes against the tenāt of the ii partes to resese the said ii partes in to the kinges handes and to be newlie endowed of the same but not to recouer anye damages not withstanding damages were recouered against her this apereth 43. in the boke of assises 43. lib. ass in Fitz ti Dovver P. 79. Now to the last braunce of this statute which is that wemen that hold of the kinge in cheefe any inheritāce of what age so euer thei be shal likewise swere not to marie c. By the order of the comon lawe before the making of this statute al women that were wtin age in ward should whē they came of ful age be maried by their lords euerie one of them with their porcions and if they were of full age at the deth of their ancestours yet should they neuertheles be in the lords keping vntill their were maried by the aduise dispositiō of their lordes For as Glāuille in his .7 boke that he wrote in the time of kinge H. 2. sayethe Nulla mulier heres terrae sine dn̄orum disposicione vel assensu maritare potest de iure vel consuetudine regni and therefore saieth he yf a man haue issue one or moe doughters which be his heires aparente marieth ani of them wtout the assent of his lord that be therbye forfets his in heritance by the lawe and custome of the relme so that he shall neuer recouer yt again but onlie through his lordes mercie and that for this cause For when the husband of such a woman shal do his homage for the tenemēts so holden by knightes seruice it is requisite to haue the lords will assēt lest he be compelled to receue homage of his mortall enemie or some other vnable personage neuertheles yf the tenant sue to his lorde for license to marie his daughter the lord is bound to consēt or els to showe cause whie he should not and if he will not the woman may marie wher she listes without his assent And the said Glanuill further saieth that Tenant in dower can not in likewise marie without the assent of him that is her warrant that is to saie the heier And if she doe she shal lose her dower and yet there the husbād shal doe no homage but what then he shall do fealtie and for that cause also she shal haue license And further saieth if she holde of diuerse lords it is sufficiēt for her to haue the assēt of the cheefe lorde Also he saieth that wemen being in ward Si de corporibus suis foris fecerint which wordes as I vnderstand them bee if thei comit fornicacion and that be proued then they that offend shal be disherited so that her porcion then goes to the other sisters that haue not in the like offended And if they all offend then the lord shall haue the inheritance by waye of eschete Howbeit saieth he wher they be ons maried by the lordes assent and after becōe widowes thei shal be no more in ward but yet if thei marie again they must haue his assēt for the reson before made But then after thei haue bene once maried thei shall not forfet their inheritance for their incōtinencie so that it aperes plainly here by Glanuill that this hole statute of prerog should be but a confirmacion of the comō law And that the law was so as Glanuill toke yt it may partly apere by the said statute of Magna carta cap. 7. For the wordes are not onlie quod vidua securitatem faciet quod se non maritabit sine assensu nostro si de nobis tenuerit Bracton libro 1 de custodia sockmanorum but are also vel sine assensu domini sui si de alio tenuerit And Bracton agrees also with Glanuille Howbeit he saieth where a woman in the life of her auncestors maries without the assēt of the lord or wher the widow maries without the asseēt of her warrant that the inheritance or the dower shall not now be forfeted although in olde time yet was And farther saieth that the heier in socage being a woman shal be maried by the lord like as she should be if she weare heier of lands holden by knights seruise And farther saieth that the heier male shal be maried by the lord more thē once that is to saie as oftē as he shall come vnmaried in the time that he is vnder the age of xxi yeres But now by the statut of w. 2. cap. 22. the lords are abreged of their power in these mariages of the heires females for yf thei now be within the age of xiiii yeres at the death of their auncestor and the lord doth not marie them before thei come to xvi yeres then shall thei recouer their heritage without ani thinge geuen either for the ward or for the mariage And if their maliciously or thorough euel counsell refuse to marie where their lords doe apoint them without disparagement then shall their lord hold their land vntill thei come to the age of xxi yeres longer vntill they haue takē the value of the mariage Out of this statute if it be wel cōsidered a man may gather that the comon lawe was no lesse then is here recited And this statute was made about the .3 yere of king E. the 1. a litl◠before that Britton began to writ his boke for Britton f. 169. saies that the mariages should be offred to the heires females before they accōplishe the age of xiiii yeares and yf not the lorde shall lose his right in the saide mariages I suppose that the printer mistoke the nomber of the yeres and should haue printed sixteene wher it is but forteene and therfore it is good too see other copiees for this matter And Britton also sayeth that if he or she haue beene once marryed by the lorde or in the lyefe of they re father or once agreed with their lord for their mariage they shall neuer again be maried by him but maye marie
goodes to the kinge without anye exception And hereuppon it is to be seene firste what is comprised in thys woorde catalla Catalla is a generall woorde whiche comprehendes as well Chatels mouable as not moueable For leases for terme of yeares are within this woord catalla as appeareth by Bracton in his seconde booke in the tytle of Forfaiture of Felons sayeng quod terminum annorum erit domini regis vt catalla Quia accipit terminum ad similitudinē catallorum And therewith agreeth the booke in 39 H. 6. 39. H. 6. 34 Also vnder this woorde catalla is taken the issues and profites of landes and tenementes of them that flye for felony vntill suche time as they bee attainted or acquited And like wise of the Landes and tenementes of clerkes conuicte vntill suche tyme as hee hath made hys purgacion I meane lands tenements as wel of their wines right as of their own right P. 4. E. 2. in Fitz. Forfaiture p. 16. 16. E. 3. Corone p. 356 296. et 344. so is the booke 4. E. 2. et 31. E. 3. Also vnder this word contra are takē the emblements that were growing vpō the ground at the time that the forfaifure of the goods first began to take place as appereth 3. E. 3. Also vnder this word Catalla is cōprised a right of acciō to goodes as wher goods be taken away wrongfully frō the felon or wher one is endetted to the felon by obligacion P. 6. H. 7. in Fitz ti Forfaiture p. 12. M. 19. H. 6. fo 47. et H. 30 H. 6. fo 5. P. 28. E. 3. 92 et t. Trauers 32. lib. Ass p. 33. or is accomptable to the felon for any receites or otherwise this appeareth 6. H. 7. et 19. H. 6. Also vnder this word Catalla is takē sometims goodes wherin the felon hath no propertie as if a man deliuer money out of a bagg or corne out of a sacke to one to kepe which is afterwardes attainted of felonye the money or corne in this case is forfaited Like law it is if a thief that steales goodes seuerally from sundry persons afterwarde is attainted for one of the said felonies by this one attainder the goodes that are stolen from the other bee also forfaited to the king Like lawe is it if one steale goods and before he be attainted therof he killeth him selfe or dyeth in prison or abiures the realme confessinge an other felonie then that for the which he fled to the churche in these cases he forfaiteth the gooddes that hee did steale So it is if the wife kill her husbande shee forfaites the goodes of her husbande 44. E. 3. f. 39. 26. li. ass p. 32 And these cases ye maye see in the title of Corone in Fitz. p. 317. 323. 334. 318. 162. 319. 380. 379. 423. And in the title of Auowrie p. 151. And in the title of Forfaiture p. 15. Then let vs see further what may be saide vppon this word Felonum If th offence that is committed be felony then is it properlye within the compas of this woorde Felonum he that committes th offence shal be saide Felo Notwithstanding that he therefore shal not suffer death as in a case where one killeth another se defendendo or by misaduenture this offence is felony and hee that committes it shal forfait his goodes notwithstanding that hee obtayne pardon of life Coron̄ 116. Felonie 599. Dower 183. For it was at the kings pleasure to graunt pardon or not And this appereth 15. E. 3. But so shal not he that killeth one that woulde robbe him in his house Or the officer that killeth one that will not be rested nor hee that killeth any thing not yet borne as a childe in his mothers bellye nor the parsone that is straught that killeth another in his madnesse For in all these cases it is not felonye The woordes bee further Damna torū fugitiuorum Sometimes the king shall haue his chatell although he be not condemned of the felony as if a man be arrested for felony and afterwardes breakes the arrest and the other ere hee can take him againe killes him in this case hee that is killed shall forfaite his goodes and yet hee was neuer attainted of th offence Corō p. 312. et p. 290. Like lawe is it if bee were killed in the first arrest where he woulde not bee arrested And this appeareth 3. E. 3. Howbeit since that tyme there was a statute made anno 34. E. 3. cap. 12. Whiche seemes to alter the lawe in these cases if it bee not that you will say peraduenture that he shall forfait them quia fugam fecit Ideo quere Hee that is felo de se shall forfaite his gooddes and yet hee was neuer attainted Like lawe is before H 34 E. 3. in Fitz. Eschet p. 10. of the clerk conuict And so is it of suche as stande mute or challenge aboue the nomber of 2 enquestes as appeareth 34. Ed. 3. Then further this woorde fugitiuorum is taken suche as flee or withdraw themselues for the felonye that they bee endyted appealed or accused of for that makes a great presumpcion against them as Bracton saieth in his seconde booke vnder the title Ad quae restituaturvtlagatus and for that presumption sake shall the vtlawrie proceade whether hee bee giltye of the felonye or not And also saieth hee in the saide booke quód vtlagati de felonia gerunt caput lupinum secum suum portant iudicium ita quod sine iudiciali inquisitione pereunt quia merito sine lege pereūt qui secundum legem viuere recusauerunt et hoc ita si in capiendo fugiant vel se defendant Si autem viui capti fuerint vel se reddiderint vita illorum et mors est in manu domini Regis et qui taliter captum interfecerit respondebit pro eo sicut pro alio nisi sit in locis vbi consuetudo se habeat in contrarium videlicet in com̄ Hereford et Glouc̄ And in an other place hee saieth Quod nullum crimen maius inobedientia quia pro contemptu et inobedientia porerit quis excommunicari sicut pro quolibet peccato mortale cum omnes subditi debeant esse Regi tanquam precellenti maxime in honestis et ducibus eius tanquam ab eo missis et sic concordat lex diuina aliquantulum cum humana And also saieth quod vtlagatus de felonia foriffacit patriam et amicos forisfacit quae pacis sunt forisfacit quae legis sunt forisfacit quae iuris sunt et possessionis et forisfacit actionem ante vtlagariam sibi datam Thus by the waye haue I noted vntoo you suche thinges out of Bracton as mee seemeth bee notable and make somewhat for this purpose Althoughe I needed not to haue gone so farre as to outlawrie for exposition of this woorde fugitiuorum but might haue rested at the flyenge For if one flee for the
deathe of a man and this presented before the Coroner hee shall forfait all his goodes that hee hadde the daye of that presentment or at anye time since till hee bee acquited of the saide deathe And notwithstandynge that an enquest vppon hys arrainement doth afterwarde acquyte him Forfaiture 32. et 35. Coron 296. 344 and also fynde that hee did not flee yet his goddes remaine still forfait as it appeareth 22. lib. Assise p. 96. et 3. Edwarde the thirde Lyke law is it where one arrayned of felonye beefore iustices is founde not giltye of the felonye Howbeit it is founde that hee withdrewe himselfe for the saide felonye nowe shall hee forfaite his goodes but no profites of landes as hee shall doo in the other case where it is found before the Coroner For when the forfaiture shall haue no further relacion but to the daye of the presentment and not to the daye of the flyenge then when at the same daye hee is acquited of the felonye then is the kynges title gone as to the landes and so consequentlye gone as to the issues And this appeareth 3. Edwarde 3. Coron 344 Also there is an other maner of fleeynge for the whyche a manne shall forfait his goodes and that is where in appeale or enditement of felonye the partye that is appealed or endited will not appeare but suffer the exigent to be awarded against him hee thereby forfaiteth hys gooddes and the profites of hys landes whiche he hadde the daye of thexigent awarded or at anye tyme after And notwythstandinge that hee afterwardes happen to bee acquyted of the sayde felonye yet the forfaiture remaines For when hee tarrieth the awardynge of thexigent it appearethe of recorde that hee hath withdrawen hymselfe and thys you shall fynde in 22. lib. Ass pl. 81. and 41. li. Assise 41. Ass p. 18 Howbeit herein is there heede to bee taken lest there bee errour in the awardynge of the saide Exigent For if there bee hee shall then forfait nothinge as if the exigent bee awarded againste the accessorie beefore it bee awarded against the principall or beefore the principall bee attaynted or if an exigent bee awarded againste one that hathe a charter of pardone for the felony of elder date than is the awardynge of thexigent and hath founde suertye accordynge to the statute and the same retourned into the chancerye before thexigent awarded P 43 E. 3. â—â— 17 For in these cases he shall auoyde the forfaiture vppon the matter shewed Contrarye lawe it is if after the exigent awarded the appelle doe abate for insufficience or for that that hee that is outlawed was emprisoned meane betweene the awardynge of the exigent and the outlawrie pronounced For in that case if he reuerse the vtlarie yet his goodes remain still forfait Forfaiture .31 et .19 Howbeit if he were emprisoned at that time of the exigent awarded otherwise it is this appereth .19 E .3 and .30 H .6 Also it is to bee noted that one maye flee for felonye and yet hee shal forfait nothinge as where one is arrested for suspicion of felonye and escapes yet for thys hee shall not forfait his goodes if hee were not taken with the maner or at the sute of the partie or endited of the same as it appeareth .42 Coron 224. li. Ass Quere if hee bee endited afterwarde whether hee shall then forfait them or not Also an accessorie after the felonye committed shal forfait nothinge vppon a Fugam fecit Otherwise it is of accessories beefore the felonye committed Forfaitur 10 as it appeareth .4 H. 7. But he that withdraweth him selfe but for Petit larcenie shall forfayte his goodes Coron 406 as it appeareth .8 E. 2. tamen quere And note for a generall rule that the towneship where the goodes of felones or fugitiues bee founde shal alwaies aunswere the kinge of them and the shiriue of the issues and profites of the landes and therefore the towneship may seise them for the kinge For it is no plee for them to saye they were not deliuered vnto them 22. Ass p. 81. 11. H. 4. 39 And this appeareth in Fitzherbert in the title of Corone pl. 390. et p. 366. 300. 347. 290. 308. 22. and in the title of forfaiture pl. 32. But at what tyme the goods of a felone or fugitiue shal bee seised it is further to bee seene and howe the attainder shall haue relacion When it is founde by enquest beefore the coroners quod fugam fecit by and by the shiriue shall seise his lands intoo the kynges handes by woorde onelye without taking anye enquest for the same purpose and also shall seise all his goodes into the kinges handes and take an enquest as well of free menne as of villeines to apprise them and cause them prise to be enrolled to the coroners and to deliuer them to the towneship to make aunswere thereof to the kynge And this appereth 22. lib. ass P. 96. And herewith agreeth the statute of Coroners and also Britton fo 4. Where you shall see this matter set fourthe more fully And in .43 M. 43. E. 3. fo 21. it is sayde that the kinges minister may seise the goods of a feloÌ„ before attaiÌ„der if the partie finde suertie then he to leaue them in the custodie of the partie or els in the neighbours custodie For the sayd minister ought not to carrie them awaye with him T. 7. H. 4. fo 41. 7. H. 4. Hull sayeth that yf one bee endited of felonie yet till hee bee attaiÌ„ted his goods shal not be remoued out of his house but in the meane time shal be in his neighbours keapinge and he to be found of the same And in the Register there is a write quod tenÌ„ta et bona taliter capta videantur imbreuientur et saluo custodiantur per balliuum ipsius capti qui se curitatem regi inuenieÌ„t ei respodeÌ„d ' si c. saluis inde ipsi capto et familie sue necessariis quam diu fuerit in prisona And so is Britton fo 17. Howbeit now by the statut made in the first yere of kinge Richarde .3 the thirde ca. it is ordeined that none shall seise the goods of any person arrested or emprisoned before that they be attainted or that the goods bee otherwise forfaited vpoÌ„ peine to pay the double value thereof This statute extendeth not to any other but too such as be in prison For by the statute de proditionibus 25. E. 3. ca. 14. If one bee endited of felonie which is not emprisoned the sheriue at the second Cape shal seise his goods and yet they bee not at that time forfaited And also the statut of R. 3. doth not extend to landes but onely to goodes Then for the relacion as for the goodes it hath no relacion but onely from the daye that the forfaiture is presented or verdit geuen and therfore it is sayd in 33. E. 3. that if he sell
But as to that a manne maye answere and saie that a Chaunceller hathe two powers the one absolute the other ordinarie and this trauerse is before him by an ordinarie power in whiche case all thinges touchinge the same must proceede as it shoulde before anye other ordinarie iudge of the common lawe and therefore it shoulde appeare by a booke in .4 H. 6. fo 12. et 22. Trauers 12. Edward 4. fo 9. that if the partie be nonsuit in this trauerse it is peremptorie vnto him for so might hee delaie the kinge infinitely tamen quere and learne whether one maye procede with a trauerse the heire beeinge within age or else shall tarrye till hee bee of full age for the booke is in 5. T. 5. E. 4. f. ◠Edwarde 4. that hee shall tarrie till the heire cometh to age But in this question one may make this distinction that is to saye Whether the trauers be tēded by a strāger or by the heir for sōtymes it happeneth that the heyr shal traūs as wel as a strāger For no more then a straunger can haue ouster le maine wtout trauersinge all the kinges titles no more may the heir haue liuerie wythout trauersinge all his tytles and then if the trauerse bee to bee taken by the heire hee shal not be thereunto admytted vntill hee bee of age because that beefore that time he hath no cause to haue his liuerie But that reason serues not where the trauerse is to bee taken by a straunger and therefore it should seeme that hee shoulde haue it by and by For hee hathe cause to haue an ouster le maine forthwith and that with the meane issues and profites and therefore it were no reason that the nonage of a thirde person shoulde hinder him with whome hee is not to plede or to trye anye right but onelye with the kynge For if the childe haue right hee may enter vpon the stranger after hee hath his ouster le maine and trye hys righte with him and so at no mischiefe And note as I saide before that the heire must trauerse all the kinges titles ere hee can haue liuerie and that whether the kinges tytle be in his owne right or in the right of an other in his owne right as if there bee a recorde that proues this lande to be aliened wythout the kings lycence or that thauncestour of thenfaunt that woulde sue his liuerie was but tenaunt for terme of lyfe the reuercion to the kynge and hathe made a feffement to the kinges disheritance or suche lyke in these cases notwithstandinge the kinge did not seise by vertue of these recordes but onelye by vertue of thoffice whyche founde thauncestour of thinfaunt dyed seised the kynges tenaunt in chiefe of estate in fee simple yet the heire geatteth no generall liuerie vppon that office vntill suche time as hee hath auoided these other recordes And if hee haue it before it is a cause of reseiser So it is where the kynges title is in righte of anye other as if one bee founde heire by office and after by another office an other is founde heire of the same landes to the selfe same auncestour in this case he that was first found heire cannot haue his generall lyuerie vntill suche time as hee hathe destroied the other title either by an enterpleder or a trauerse for if it so come to passe that he cannot enterplede then must hee trauerse or by some other meanes auoide the recorde ere hee can haue his saide generall liueries and if he sue his generall liuerie otherwise it is then missued and a good cause geeuen to the king to reseise And this enterpleder or trauerse beetwene them that claime as heirs is by the order of the common lawe and not by statute and can neuer be but where both theire titles bee founde first by office and the reason is because that as sone as the matter is discussed betweene them hee for whome it is founde shall forthwith haue hys general liuerie which he can neuer haue if his title bee not first founde by office and therefore not like the case where a straunger trauerseth with the kinge that is to haue but an ouster le maine for there the kinge hadde no right too seise and therefore his tytle nede not to bee found by offyce as I haue saide before But in the other case who so euer shall claime the lande as heire his highnes hath right to seise in the right of the saide heire and to haue his primer seisine or wardshippe as the case dothe require And therefore his title must bee first founde by office but where one heire is to trauerse with an other heire duringe the kinges possession this shall not bee vntill hee that is first founde heire by thoffice come of age because vntil that tyme the landes ought to remaine in the kinges handes and then hee to haue liuerie but whether hee that was firste founde heire shoulde tarrye for thage of him that was laste founde heire I haue said my mynde therin before in the tytle of Enterpleder But where a straunger is to trauerse hee shall not tarrye for thage of the heire for the causes before remēbred And so there appeareth to bee a great difference beetwene a trauerse taken by him that is a straunger and by him that is heire But at this daye moste liueries that bee sued are specyall liueries whiche conteine in them selues a pardone and therefore the myssuinge of them is dispensed withall by the woordes of the pardone conteined in the saide liuerie And so manye of these thinges that I haue spoken of before are not much to bee obserued if the liuerie or Ouster le maine bee not generall For I see no lett but that an ouster le maine maye be graunted specially as well as a liuerie And laste of all it is to bee noted that this trauerse extendes not to euerie recorde that entitleth the king but onelye to suche recordes as bee trauersable as an office or suche like as I shall shewe my mynde therein more fullye in the chapter of Peticion Other trauerses there bee whiche bee trauerses by order of the common lawe And not by any statute as trauerses vppon enditements or presentmentes whereof I entend not to entreat in this place amonge whiche trauerses there is also by order of the common lawe a trauerse concerninge goodes and cattalles of persons attainted for the whiche a manne shall trauerse with the kinge althoughe his title thereunto bee by double matter of recorde As take the case to bee a manne is attainted of treason or felonye or outlawed in a personel accion and after by office it is founde that hee was possessed of a horse or anye other gooddes as his owne proper cattell where in deede they bee the goodes of a straunger in thys case the saide straunger shall trauerse this office with the kinge So is it if it bee founde by office that a manne outlawed in a personall accion is seised
of certeine lāds which in deede are my landes and theschelour by force of that fals office takes the profites in this case I maye disturbe hym without trauersinge thoffice And those cases appeare .4 Edwarde .4 fo 24. 13. Edward .4 fo 8. T. 9. H. 6. fo 20. M. 47. E. 3. fo 26. Then further The woordes of the saide statutes of anno 36. bee that if anye came before the Chanceller and shewe his right whereby it may appere by good euidence that hee hathe an auncient righte and good tytle then the chaunceller shall let the saide landes to the partye that tendeth the trauerse yeldinge to the kinge the value if it bee aiudged for the king in maner as hee and the other Chaunceller haue done before him by theire good discretions so that hee to whome it shal be letten finde suretie to doe no waste or destruccion beefore the trauers bee discussed By the woordes of this statute it shoulde appeare that the Chauncellours before this time by theire discrecions hadde vsed to let the landes to the partie to ferme Quare impedit p. 34. and that is true for the kinge vsed so to doe vppon a peticion whiche was made to his highnes by the order of the common law in steede of a trauerse nowe vsed as appeareth 5. Edward 3. Trauers 12. and therefore I thinke his highnes may do so at this day bothe vpon a peticion and a Monstrance de droit although the statute make no mencion thereof for so it was vsed to doe by order of the common lawe as it appeareth by the booke before And of this matter see the booke .3 Henrye .7 Now is this statut amplified and made plainer in thys point by the statute made in the .8 yeare Henrie .8 the .26 chapter whiche will that no landes or tenementes seysed into the kinges handes vppon enquest taken before eschetours or commissioners bee in anye wise graunted or letten to ferme by the Chaunceller or Tresorer of Englande or anye other the kinges officers till the saide enquestes or verdites bee retourned fullye intoo the Chauncerie or theschequer but all that time shall abide in the kinges handes and by a moneth after the saide retourne if it bee not so that hee or they that feele themselues greeued by the saide enquest or that are put out of theire landes and tenementes come into the chauncerie and offer to trauerse the saide enquestes and to take the saide lande or tenementes to ferme whiche if they doe then the saide Chauncellour Tresorer or other officer shal let them haue them to ferme shewinge good euidence prouing theire trauerse to be true accordinge to the forme of the statute of an .36 E. 3. to holde till the issue vppon the saide trauerse taken bee founde and discussed for the kinge or elles for the partie and also fyndynge sufficient suertie too pursue the saide Trauers with effecte and to render to the kinge the yearely value of the tenementes whereof the trauerse shal bee so taken if it bee discussed for the kinge And if anye Letters patentes of anye landes or tenementes bee made to anye other parson to the contrarie then the same to be void after the moneth Hereuppon is to bee noted that the shewinge of the euydēce is onelye rehersed to the lettynge of the landes to ferme not to the trauerse For by this statute hee maye trauerse without shewinge anye euydence but not haue the landes to ferme Also by these Statutes hee is not bounde to noe certeine tyme for takinge of hys trauers but onelye for takinge of the landes to forme for hee maye tende hys trauerse when hee will so hee desire not the ferme of the lands But if hee will haue them to ferme hee must tend his trauers within the moneth as appeareth P. 13. E. 4. fo 8. and nowe by the statute of anno 1. H. 8. ca. 9. hee hath three monethes libertie to doe it Also note the thinges that he must fynde suertie for that is to say to sue with effecte to paye the rent after the trauers bee discussed and to doe no waste or destruccion In this woorde rent is emplyed all the arrerages of the rent that shall encurre meane betwene the takynge of the ferme and the discussinge of the trauerse and yet it is not so expressed Also the lease that is made to hym that tendes the trauerse is not of anye terme certeine but onelye by these woordes Donec discussum fuerit for the woordes of the statute bee so and therefore as soone as the trauerse is founde againste him that tendeth it by and by the lease hee hadde in the landes by force of the Statute is voide as apperethe in .4 Edwarde the .4 folio .29 wythout anye further proces Howbeit forasmuche as the woordes bee to holde till the issue vppon the saide trauers taken bee founde and discussed for the kinge or for the partie I woulde learne if the partye bee nonsute vppon hys trauerse or that the trauerse bee aiudged againste him vppon a demurrer in lawe whether the lese shoulde bee voide or not like as it shal bee vppon the issue founde And it seemes it shal bee by the woordes comprised in the saide statute of anno 36. Edwarde .3 But not by any words comprised in the saide statute of an .8 H. 6. For the wordes bee tanque il soit aiudge and therewih agreeth the booke in 4. H. 6. fo 12. Also note that before this statute of anno .8 H. 6. the kynge did vse to graunte the custodye bothe of the landes and body to anye other to whome hee woulde after office and beefore anye trauers tended and this graunt was good because it was not then restrained by any statute Howbeit vppon the trauers tended a Scire facias shoulde haue beene awarded against the patentee comprehendinge in the same all the trauerse And if he had beene retourned warned and came not his patent had ben voide eo facto as appeareth in the saide booke of .4 Henrye .6 at least wise for the landes and yet there was then no estatute that made them voide quod nota And then by and by they shoulde haue beene letten to ferme to him that hadde tended the trauerse But nowe whether since the makinge of the saide statute of an .8 Henry the .6 fo 17. a Scire facias shal bee awarded against the Patentee vppon a Trauers lerne for the saide statute makes suche letters patentes voide for the graunt of the landes but not so for the bodye and therefore it seemes a Scire facias shal bee still awarded and the graunt also of the saide landes is not voide till after the moneth H. 8 H 6. 17. 5. E. 4. .3 .5 M. 14. E. 4. 1 And nowe by the saide statute of anno .1 Henry .8 not till after three monethes and so it shoulde seeme by the booke of .5 and .14 Edwarde .4 and 8. Henry 6. that a Scire facias shal bee awarded at
trauerser loffice ou auterment mre son droit et illeoques maunde deuaunt le roye a faire final discussion sauns attender auter maundement This statute speakes bothe of trauerse and Monstrance de droit disiunctiuely whereby a man may gather that if Monstraunce de droit were not by thorder of the common law as it is saide 13. E. 4. f. 8. that it is yet were it geeuen by this estatute And no booke that beares date before this statut can I find that treates any thing of Monstraunce de droit Wherfore without preiudice to anye mans oppinion mine oppinion is that it is geuen onely by this statute but whether it bee so or not so I doe not greatly force Let vs see what it is in what cases it lieth If the kinge bee entitled by office or other matter of recorde that is trauersable Howbeit there is no cause of trauerse for that the office or recorde is true in this case anye manne that hath right to the possession of the freeholde of this lande whiche in shewinge of his right is able to confesse this office and auoid it shal bee receyued if hee bee putte out of hys possession or greeued thereby to come into the Chauncerie and shewe his saide right which beinge there proued to be true iudgement shal bee geeuen that the kinges handes be amoued from the possession of the saide landes with the meane issues and proftes to be restored vnto the party that sueth the said Monstraunce de droit As for an example it is founde by office that the kinges tenaunt by knightes seruice in chiefe dyed seised of certeine landes whiche are descended to his heir being within age where in dede in his life time I recouered this land against him and suing no execution suffred him to dye seised therof now vpon this office returned into the Chauncerie shall I come shewe my right that is to saye this recouere and auerre that this lande founde by office is the lande that I recouered or parcell thereof which being so proued and tried I shall haue an Ouster le maine Like law it is if the kings tenaunt disseised me of those landes and I made my continuall claime or that I had title to enter for condicion broken into the saide landes in the life of the kinges tenaunt and I entred and after was disseised by him But quere if I did not enter in his life whether now I may bee holpen by a Monstraunce de droit vppon the kinges possession And me thinkes not because I haue noe righte in that case till I enter for vntill that time the right continueth still in hym so that the kinge then hath a right ere I haue a right which ought too bee preferred and take place since it is but for a tyme before myne And for these cases see the booke in .3 H 7. fo 2. But if the king bee entitled by matter of worde not trauersable as if he be entytled by double matter of record in this case I can not haue my Monstraunce de droit no more than I can haue in the like case of Trauerse vnlesse my title be founde by one of the saide recordes As take the case to bee It is founde by office that one suche that holdeth of the kinge disseised mee and then committed a felonye vppon whome I entred after whiche entrie the saide tenaunt was attainted of the felonye in this case I shal haue the lande out of the kings hands by a Monstrance de droit causa qua supra And yet the kinges tytle is here by a record and not trauersable that is to saye thatteinder But what than My tytle is also founde by office and appeareth by matter of recorde M. 3. E. 4. 26 A. 4. H. 7. 6 whych beynge proued true doth clearelye auoide the kyngs possession and that is the reason I shall be receiued in thys case to a Monstraunce de droit as appeareth in .3 Edward 4. And therewith agreeth the booke 4. Henry 7. where kyng Richard the thirde was attainted of Treason by act of Parliament and found by office that he was seised of certeine land cometh one B. and saith that in the saide Parliament it was enacted that an atteinder of treason had against the father of the saide B. shoulde bee auoided and adnulled and hee restored to his landes and that these lands cōprised in the office were in the hands of the said king R. by attainder of his father aiudged that vpon this Monstraunce de droit the party should haue restituciō because his right appered by mater of record Like law is it wher it is found by office that such a one is attainted of felony is seised of such landes which are holden of the king nowe he that hath cause to sue his Monstraunce de droit can not be admitted therunto by reason of these two records Howbeeit if it bee so that there is noe suche attainder in deede then may the party that would sue a Monstraunce de droit saye that there is no suche recorde of attainder which beeinge founde true hee shal be receiued to his Monstraunce de droit as appeareth in the saide booke .4 H. 7. For nowe is there no recorde against him but onelye the office and notwithstandinge that by thoffice thattaindour is founde yet this fyndinge makes nothinge for the kinge if it bee vntrue For the iurie can neuer finde a matter of recorde and if they doe it is to little purpose for the recorde is euer triable by it selfe and if there bee suche a recorde it will appeare thoughe they fynde it not and if there bee none the finding of it is voide This may you see that a Monstrance de droit lyeth sometimes althoughe the kynge bee entytled by double matter of recorde if it so bee that the parties tytle appeare by matter of recorde or else it lyethe not M 14. E. 4. f. 1. 7 And yet Choke Littleton and Nedham helde oppinion in .14 E. 4. that if it bee founde before theschetour that one was tenant in taile of certeine landes holden of the kinge the remaynder to another in fee and that hee in the remainder is outlawed of felonye and that tenaunt in taile is dead without issue where in dede he beinge tenant in taile before the statute De donis condicionalibus after that hee hadde issue enfeffed one B. in this case the saide B. shall shewe this matter and that the vtlagarie was after the feffement made and so haue the landes out of the kinges handes by a Monstraunce de droit But it shoulde seeme their oppinion is againste the lawe and the bookes beefore rehersed vnlesse this feffement were founde by office Peticion .12 Trauers .7 because it appearethe that the kinge in this case is entytled by double matter of recorde And note that where the kinge is entitled but by office alone there the partye maye haue his Monstraunce de droit althoughe his title bee
seisin can not be deliuered out of him vntill suche time an Ouster le maine bee sued as if the king be seysed by office of the lande of any Idiots or for aÌ„nuÌ„ diem vastuÌ„ of lands of any that is attainted in these cases he that shoulde haue these landes after the kynges title determined muste sue an Ouster le maine otherwise yt is where the kyng is not seised of the land but only entitled to the profites as of the landes of him that is outlawed in a personall action or of clerke conuicte or suche like there nede no Ouster le mayne to be sued as appeareth in .8 E. 2. 4. Trauers 28. E. 3. and .9 H. 6. f. 20. and if the landes whiche is seysed into the kynges handes bee holden ioyntlye bye manye yet euery one of them by hymselfe may sue hys Ouster le maine of his owne parte withoute his companions as appeareth in .2 Assise p. 166. H. 4. Lyuerye THe maner of the suing of a generall liuery doth partly appere in the title of Liuerie in the great abridgemeÌ„t of Iustice Fitsherbert A. 12. H. 4. ti Liuerie p. 4. A. 21. R. 2. ti Liuerie p. 5. Wher it is declared that after the heire that was in the kings warde is come to full age then a writ De etate probanda shal be awarded vnto the shirife of the shiere where the said heire was borne to eÌ„quire of his age in which case it is required by the lawe that euerye one that shall passe in that enquest shal be of the age of .xliij. yeares meaning therby that they euery one of them shoulde be of full age at birth of the childe beecause that suche haue better knowledge and remembraunce then other of lesser age haue and that the heire that is in warde enforme the enquest by certaine signes and tokens of the tyme of his birthe as to say that that yeare there was a great tempeste or a greate plague or suche like which signes so geuen in euidence shal be returned by the shiriue as well as the principall mater But whether it bee requisite to haue xij or a lesse number in the sayde enquest or not learn for soome think that any number from two vpwarde will serue beecause the triall is by proues and see the newe Natura breui um fo 136. wher it appereth that this writ of Etate ê“banda was directed to the eschetour of the countie where hee was borne and not to the shiriue Howebeeit note alwayes that theye wheare the lande is shall neuer enquire of this mater vnlesse the birthe and lande weare bothe in one shiere for theye haue enquired of it allredy that is to say when theye dyd fynde the firste offyce Thus when theye haue founde his age that enqueste shall bee returned into the Chauncerie and from thence shal bee awarded a write to the Lorde Keeper of the priuie seale signifying vnto him that the heire is of full age and vppon that a priuie seal shall bee directed to the Chamberlaine of Englande to receiue his homage whiche beynge receiued the sayde lorde Chamberlaine shall certifie the lorde Chaunceller by write of the receipte thereof and then shall the heire haue his liuerie But it seemes that if the heire were neuer in warde but of full age at death of his auncester and so founde by office that thenne hee shall haue liuerie as is declared vppon that office onelye without suynge anye write of Etate probanda for the writtes of liuerie in thys case make no mention of anye Etate probanda as they doe in the other case but if the heire bee withein age and in the kyngs warde and after when he comes to his ful age other landes descende vnto him whiche the kynge allso seisethe by an enqueste that fyndes the heire of full age yet this not withstandynge hee must now sue an Etate probanda vppon bothe offices as appearethe in M. 13. Henrye the fowerthe And the reason of it is M. 13 H. 4. beecause the fyndynge of hym of full age is but as voide as longe as there is a recorde whiche founde hym within age to the whiche record the kynge mighte cleaue vnto as the best recorde that makethe for hym vntyll suche tyme the contrarie thereof be proued bye the wryte of Etate probanda Howebeeit at this day the statut made Anno. 33. H. 8. hath much abridged the fees that haue bene geuen vpon the sute of a general liuerie namely for liueries to be sued of clere yearely value of v. li. or vnder and that it may be sued without any office to be founde But I do not see that the maner of the sute is in any other point altered or changed by the sayd statute but it remaines as it did before And that statute also geueth men licence to sue a generall liuerie of landes not excedinge the cleare yerelye value of .xx. li. whereby I see no let but that a man may sue his generall liuerie also for landes aboue the yerely value of xx li. as he might haue done before the makynge thereof for this statute is not contrarie to anye lawe that was before in that pointe sauinge that a general lyue uerie vnder the value of .xx. li. can not passe or be sued yf he haue not firste his warrant from the maister of the kynges wardes and liueries surueyours atturneys and generall receiuour or three of them signed and subscribed with their names and hands Thus may you see the maner of the suing forth of a generall liuerie which liuerie may not be sued by parcelles as I haue sayde before but entierlye that is to say of all the landes the kinge is or ought to be seised of in his right that sues the liuerie And therefore if the heyre sue liuery but of parcell of that that is founde by office or yf the auncester we are seised of other landes than are fouÌ„d bye office yf the heire sue his generall lyuerie beefore an offyce thereof founde omittinge them in the liuerye the lyuery is missued T. 12. R. 2.44 E. 3. f. 1â— et 25. 2. H. 7. f. 2. as appereth in .12 R. 2. 44 E. 3. 2. H. 7. and therefore it beehoues the heire beefore hee sue his lyuerye to cause an office to bee foynde in euerye sheere where hys auncester hadde anye landes And this entier lyuerye is intended as well of landes holden of other lordes beinge in the kinges handes as of the landes that are holden of the kinge and therefore if a manne holde of the king in chiefe by knightes seruice and of other lordes in socage and die his heir being a daughter within the age of xiiii yeres in this case when the sayd daughter cometh of the age of xiiii yeres she getteth no liuerie of the lands holden in socage but must tarry till she be of the age of xvi yeres that she may then sue liuerie of the whole as appereth .35 H. 6.
H. 35. H. 6. Liuerie 19. But note that in some cases one shal haue liuerie of parcel and that is where landes descend to diuerse daughters and one is within age and the other of full age now shee of full age shall sue liuerie with a particion of her parte of all thinges that are seuerable and this liuerie is wel sued although it be not of the whole laÌ„ds descended but if ther be any things in the kings hands not seuerable as aduousons or such like that must so remaine still vntill the other bee of full age as appereth 38. H. 6. 38. H. 5. f. And so note that in a general liuerie if any thing be omitted the liuerie is missued and therfore some saye that after such a general liuerie had there shal be a writ awarded to enquire of the concelement that is to saye whether the heir hath left out of his liuerie or not any of the laÌ„ds that were his auncestors which writt is called breue de terris concelatis And see the statut 28. E. 3. ca. 4. that geues the rents to them that sue liuerie when the rent day cometh although it cometh next day after their liuerie And loke more for liuerie in the expositioÌ„ vpon the third chapiter of the kings prerogatiue Reseisir REseisir lieth where a general liuere or ouster le main is missued by any person or persoÌ„s vnduely and not according to the forme and order of the law or vpon an office which is insufficient in the law for the partie to haue liuerie or ouster le main in this case the king may reseise the lands without suing any proces against the partie Liuerie P. 8. and shal be aunswered of all the meane issues and profits receiued and taken from the time of their first seisier if it were sued out of his hands by an ouster le main and if by a liuerie theÌ„ but from the time of the liuerie And the partie that hath pursued it shal be accompted none other than as an intruder vpon the kings possession after office in which case no freehold shal be aiudged in him nor his wife of that possession shal haue any dower as appereth 18. E. 3. 21. E. 3. fo 1. H. 2. E. 3. f 1. 24 E. 3. 34. 24. E. 3. fo 34. But if one haue liuerie or ouster le main by due proces and after a record is found in the tresorie or ells where or an office in the contrie whereby the kinge is eÌ„titled of a title groweÌ„ vnto hiÌ„ before the suiÌ„g of the sayd lyuerie or ouster le main although the partie shoulde haue had no liuerie or ouster le main in case the sayd records had then appered vnlesse he could haue auoided the sayd records yet for as much as they did not then appere he shal not bee nowe after liuerie or ouster le main cast out of his possession with out a Scire facias to be pursued against him for so hath the statut prouided that was made at Lincoln in the 29. yere E. 1 called statutum de Escaetoribus the tenour wherof is this Ad parliamentum regis apud Lyncolne tentum in octa bis sancti hillarii anno regni sui vicesimo nono per consilium regis concordatum est coram domino rege ipso rege conseÌ„tiente et illud extunc fieri et obseruari precipiente de consilio venerabilis patris w de langtoÌ„ CoueÌ„tr et Lychr episcopi tunc eiusdeÌ„ regis Thesaurarii Iohannis de Langton Cancellarii et alioruÌ„ de consilio tunc ibidem presentium et coram rege videlicet Cum inquisiciones per escaetores suos capte per quecunque breuia Regis in cancellaria ipsius domini regis fuerint retoruÌ„ et per easdem inquisitiones compertum fuerit quod nihil tenetur de ipso domino rege per quod custodie terrarum et tenÌ„ huiusmodi ratione inquisitionis in manum domini regis per ipsos escaetores capte ad ipsum do minum regem nullo modo pertineant quod statim absque dilatione aliqua mandetur per breue domini regis de caÌ„cellar ' precipiend ' quod escaetores de terris tenementis sic in manum domini regis per ipsos captis manum suam amoueant omnino exitus si quos leuauerint de ipsis terris et tenemÌ„tis sic in manuÌ„ domini regis ê‘ ipsos captis de tempore quo terre tenÌ„ illa in manu domini regis exti terint integre reddant ipsi vel ipsis cui vel quibus per inquisitiones prius per eosdem escaetores captas compertuÌ„ fuerit quod terra et tenementa illa debeant remanere saluo semper domino regi quod si postquam escaetores sui manus amouerint per breue ipsius domini regis vt predictum est ali quid contigerit inueniri in cancellaria vel ad scaccarium vel alibi in curia ipsius domini regis per quod custodia terrarum aut tenÌ„ eorundem de quibus escaetores manus suas amoueriÌ„t in forma predicta domino Regi pertineant quod statim premuniatur ille in cuius seisina tenementa predicta fuerint per breue de cancellaria quod sit ad certum diem coram domino rege vbicunque c. ostens si quid pro se habeat vel dice re sciat quare dominus Rex custodiam earundem terrarum et tenementorum habere non debeat iuxta formam euidentiarum seu memorandorum pro ipso rege compertorum Et si venerit pro se osten dat quare eadem custodia ad dominum regem non pertineat aut pertinere non debeat immo quod remanere sibi debeat recedat quietus custodiam suam retineat Si autem premonitus non venerit vel venerit nihil sciat dicere quare rex custodiam illam habe re non debeat â–ª statim resesientur terre tenementa illa in manum domini regis nomine custodie tenend vsque ad legittimam eratem hered eorundem sicut superiê° dictum est Et si compertum fuerit per inquisitiones per escaetores suos factas et retornatas quod custodia eorundem terrarum et tenÌ„ in inquisitionibus contentorum et in manum domini seisitorum domino regi remanere noÌ„ debeat quod statim maÌ„de tur escaetoribê° quod manus suas amoueant et exitus integre reddant c. Eodem modo si postea compertum fuerit per euidentias memoranda in cancellaria aut scaccario vel alibi vt predictum est quod dominus rex custod ' eorum habere debeat respondeatur ipsi domino Regi de exitibus integre per manus illorum qui terras aut tenementa illa tenuerint a toto tempore postquam terre et tenementa illa primò in manum ipsius domini Regis per escaetores suâ—â—capta fueriÌ„t per breuia supradicta iste modus de cetero obseruetur
reuersion to an other in this case he in the reuersion hadde an Ouster le mayne withoute suinge anye Scire facias againste the patentee as it appeareth in .10 Edwarde the thirde and at this daye the case is more stronger for suche a graunt were voide beecause it is beefore office And therefore vppon anye suche voide graunt there neede no Scire facias And in .14 Edwarde the fowerth fo 1. it appearethe that one had trauersed an office whiche was sente into the kinges benche to trye and had forgotten to sue his Scire facias and yet hee was suffred to goe agayne into the Chauncerie to pray a Scire facias vpon the first trauerse for it was saide that the Chauncerie is a courte of conscyence and for that cause the thinge that was there amisse may be reformed at all times And learne if this Scire facias bee sued againste manye and one of them dyeth whether this shal abate the trauerse Monstrans de droit or peticion wheruppon it is sued or elles onelye the Scire facias It semes that nothinge shall abate but the Scire facias because no mentiō is made of the tenaunt neither in a trauerse Monstrans de droit of peticion And of this mater see the booke in M. 7 H. 4. fo ◠Ouster le mayne OVster le main is the iugement that is geuen for hym that tendeth a trauerse or sueth a Mōstrans de droit or peticion for when it appeareth vpon the matter discussed that the kinge hathe no righte nor title to the thinge he seised then iudgement shal bee geeuen in the Chauncerie that the handes bee amoued and thereuppon Amoueas manum shal bee awarded to theschetour whiche conteruailes as muche as if the iudgemente weare geeuen that hee shoulde haue againe his lande as appeareth in 24 E. 3 f. 3◠and this iugement sometime is geuen in the kinges bench and not in the chauncerie that is in case where the parties descende to an issue then for the tryall thereof theye of the chauncerie muste awarde a venire facias returnable in the kings benche at a certaine daye at whiche day notwithstandinge that the shirife returne not the writ yet the Alias venire facias shall not bee awarded out of the chācerie but oute of the kinges bench for there and no where els it is recorded quod vicecomes non misit breue as appeareth in .13 E. 4. f. 8. And when the issu is found for the partie they of the kinges bench shall gaue iugement awarde an ouster le maine without suinge for the same in the chaūcerie as appeareth in 21. H. 7. .29 Liuery P. 10 li. ass and yet the recorde of the issue that was tryed was not sent thether but onelye the transcript thereof but what then the iudgement is to be geuen vpon the verdit which is there of recorde and when bothe courtes bee courtes of the common lawe and the kynges courts theye vse not to remaunde anye thynge to the place from whence it came but to geue iugem̄t there where it is tryed and Sharde sayde that when a recorde comes once into the kynges benche it shall neuer go from thence Also note that sometime there goeth an Ouster le mayne as well to the kinges patentee as to the eschetoure and that is where the kinge hath graunted the thing that hee seised to any other but notwithstanding that there go such wryttes of Amoueas manum bothe to theschetor and to the partie yet the kynge is out of possession as sone as iugement is geuen in the chauncerie not forcing whether any of these wryttes bee awarded or not either to theschetoure or to the partye and thereupon the partie for whom iudgemente is geeuen may entre forth with into the landes and shal bee sayde noe intrudor Assise P. 156. as appeareth in H. 10. E. 3. and the reason of yt is because the iugement tyethe not the kynge to the delyuerye of the possession but onely to leaue hys handes of the possessiō And note that if a Diem clausit come to the eschetor he hy vertue of that wryte beefore he make any enquirie may seise the lande for the kynges beehofe whiche after he hath once seised if after by office noe title bee found for the king then the party that ought to haue agayn the land may sue for the same in the chauncerye where the office is returned and then Amoueas manum shall be awarded for vntill the makynge of a statute at Lincoln Anno .29 E. 1. called the statute De escaetoribus the partie hadde noe remedye in suche case but onelye to sue vnto the kinge himselfe as it appearethe by the sayde statute and nowe that statute geeues an Ouster le maine vna cum exitibus Howbeit this Ouster le mayne maye not bee sued by parcels no more than a liuery and therefore if diuerse writtes or commissions bee awarded into diuers counties to enquire after the death of A. B and in one countie it is founde that hee holdethe nothynge of the kinge but in socage and in the same countie and bye the same ēquest it is foūd that he holdeth of an other by knights seruice yet the lord by knights seruice gettethe noe Ouster le main vntil the other ēquests be also returned in Causa qua sup̄ for if he should then he should haue it for the lands and not for the body and so should haue it by parcelles for the bodie may not be deliuered as long as there is anye enquest to be returned in And the reason of it is beecause that enqueste may finde a tenure of the king by knights seruice in chiefe in which case his highnes ought to haue the whole landes and if it bee but a cōmen tenure by knyghtes seruice yet hys highnesse at the leaste oughte to haue the preferrement of the bodye yea thoughe the lorde of whom it is founde to be holden be the archebyshoppe of Caunt or suche a one against whō the kings prerogatiue will not hold for the landes yet because it holds for the bodies he getteth no Ouster le maine vntil al the offices be returned in for the reason before made as appeareth in 16. E. 3. Liuerie p. 29 Howbeit by fauour and grace of the court tharchebishoppe had his Ouster le maine beefore the other offices retourned And so note howe in tymes past men haue sued Ouster le maine vpon a seisin made for the kynge although the office founde afterward did not entitle his highnes Howbeit at this day it is not so vsed for theschetor will not seise vnlesse there be an office found although he might lawfullye do it by the words of the writ Diem clausit whiche vsage I do nothinge mislike consideringe the great trouble it auoideth that might els ensue to the kinges subiectes And note that in all cases where the king is seised or in possession of the lād by office or any other mater of recorde his highnes