Law, Book 4 · Chapter 1
CHAP. 1.
Of Courts.
THus we hauehave gon through both the parts of Law; there remaineth yet one generall and common affection ſcattered, throughout the whole Law, (as the bloud is through the bodie,) which we call an Action.
Action is the handling of a cauſe in controuerſie before certaine Iudges: who (in reſpect ot the place where they are ſet to doe Iuſtice) are commonly called a Court.
Statutes.
36. Ed. 3. cap. 15. All pleas which bee pleaded in any of the Kings Courts, before any of his Iuſtices, or in his other places, or before any of his other miniſters, or in the Courts and places of any other Lords within the Realme ſhall be pleaded, ſhewed and defended, anſwered, debated and iudged in the Engliſh tongue, & that they be entred and inrolled in Latine.
Of all apparent faults proceeding from the Action, As in falſe Latine (a)4. H. 6. 16.or default of forme in the writ, inſufficiencie in (b) 5. E. 4. 7.an office or Inditement, miſawarding of Proceſſe (as if of an exigent where no exigent lieth:) impoſſibilitie in the plea, as in (c) 7. H. 6. 5.account, ſuppoſing him to bee his Receiuor for vij yeares, and the defendant pleads, fully accounted ſuch a day, which is the firſt of thoſe vij yeares; The Court muſt take notice. To abate the Writ, award a Superſedias vponupon thoſe offices, Inditements, or Proceſſe, to ſtay Iudgement if the defendants plea bee found againſt him, &c. though the partie except not to it. And 4 H. 6. 16.therefore although hee that caſteth an Eſſoyne cannot pleade in abatement in the Writ, by way of plea; yet if it be a matter apparent to the Court, (as Henricus, &c. Dux Hiberniae, where it ſhould bee Dominus) he & euerie other ſtranger, as amicus curia, may. And the Court is bound to abate it ex officio, though the Tenant or defendant make default.
Euerie Court hath power to award forth Precepts. And if the Precept bee 14. H. 6. 20. in a Sommons ad Warrantizandum. F. N. B. 73. in a Repleuin.not ſerued, another of the like nature ſhall goe forth till it bee ſerued. Therefore the ſecond Proceſſe is called a Sommons (or attachment, as the firſt Proceſſe was) ſicut alias; the third a Pluries, the fourth, and al the reſt, Plus pluries.
To euerie Court doe belong both Clarkes and Officers.
A Clarke is hee that ſerueth for things to be done in Court, as entering the pleas, and ſuch like.
Any error that appeareth to the Court to be the Clarkes (miſpriſion) miſtaking, may bee amended at any time. As a good originall Writ or precept ill entered in the 7. H. 6. 4….Rolle. A Writ againſt A. and B. and the 44. E. 3. 18.whole Proceſſe continued againſt B. &C. not A. and B. a Scire facias out of a fine & 20. E. 47.parcell of the land omitted.
Statutes.
14. E. 3. cap. 6. No Proceſſe ſhall be adnulled or diſcontinued by the Clarkes miſtaking in writing one ſyllable or one letter too little, or too much, but ſhall ſpeedily be amended, without any aduantage to the other.
9. H. 5. cap 4. made perpetuall.
4. H. 6. cap. 3. The Iuſtices before ſuch pleas or Records bee made, or ſhall bee depending by adiournement, errors, or otherwiſe, may make ſuch amendment as well after iudgement as before.
4 H. 6. cap. 3. The former Statutes ſhall not extend to Records and Proceſſe, whereby any perſon ſhall be out-lawed.
8. H 6. cap. 12. No iudgement or Record ſhall be reuerſed or adnulled for error, aſſigned in raſing or interlining, adding, ſubſtracting, or diminiſhing of words, letters, titles, or parcell of letters in any Record, Proceſſe, or warrant of Atturney, originall Writ, or iudiciall Pannell, or retorne, though to the Iudges of the Courts wherein the ſaid Records and Proceſſe be certifyed (by Writ of Error, or otherwiſe) the ſame appeare ſuſpected. But the Kings Iudges of the Courts where the ſaid Records and Proceſſe be certifyed by Writ of Error, or otherwiſe, ſhal examine the ſame by themſelues and their Clarkes, and amend therein (in affirmance of the firſt Iudgement) al that ſeemeth to them to bee the Clarkes miſpriſion: Except Appeales, Inditements of Treaſon, and of Felonies, and the Outlawries of the ſame. And the ſubſtance of the proper names, ſyr-names, and additions, left out in originall Writs of Exigend, and other Writs containing Proclamation. And if any Record, Proceſſe, Writ, Warrant of Atturney, Returne, or Pannell, to be certified defectiue, otherwiſe than according to the writing which thereof remaineth in the Treaſurie, Courts, or places from whence they be certified; the parties in affirmance of the Iudgements of ſuch Records or Proceſſe, ſhall hauehave aduantage to alledge variance betwixt the ſame Writing and the Certificate: which being found and certifyed, the ſame variance ſhall bee by the ſaid Iudges amended, according to the firſt writing.
27. Eliz. cap. 7. After demurrers ioyned and entred, the ſame Court may amend all imperfections, defects, & wants of forme, other than thoſe onelyonly which the party demurring ſhall particularly expreſſe with his demurrer.
Officers are thoſe which are to ſerue the Courts Precepts, and where the Precept ſo requireth, to certifie the Court thereof: which we call a returne.
So vponupon a Writ to inquire of dammages, it is a good returne that the Inqueſt gaue 44. E. 3. 3.no dammages. For he returneth what they did.
But vponupon a Capias returned Cepi corpus, he 44. E. 3 2.ſhall be amerced if he hauehave it not there at the day. For the Writ is, Capias ita quod corpus eius habere poſſis, &c. tali die, &c.
Statutes.
Weſtm̄ 2. Cap. 39. Dammages giuen againſt the Sherife if he returne not at all, or returne a tardie, vponupon Writs deliuered or offered to be deliuered him by Billet. So vponupon returning Mandaui Balliuo libertatis falſely: vponupon reſiſtance of any Great man to execute the Kings Precept, the Sherife ſhall take the Foſſe Comitatus, and ſee it ſerued.
Stat. Ebora… 12. E. 2. Ca. 5. Bailifes of Franchiſes muſt deliuer their returnes of the Writs to the Sherife by Indenture, and if he change the Returne, the Lord of the libertie, and the partie, ſhall recouer double dammages.
The Sherif, &c. muſt ſet his proper name to all returnes.
27. Eliz. C. 12. Euerie VnderUnder-Sherife, Bailife of Franchiſe, Deputie, or Clarke of the Sherife, &c. muſt take an oth for the ſupremacie, and for the true, ſpeedie, and indifferent returning of Writs, and impanelling of Iurors, without taking aboue the fees allowed.
29. Eliz. Cap. 4. Sherifes may take for the ſeruing of any extent or execution only xij. đ. of and for euerie xx. s. where the ſumme exceedeth not C. l. and vj đ. of and for euerie xx s. beeing aboue an C. l. that they ſhall leuie, or extend and deliuer in execution, or take the bodie in execution for.
Courts are Courts of Record, or Court Barons. For againſt a recouerie pleaded 9. E. 4. 42.in antient demeſne, or other Court Baron; one ſhall not ſay, nul tiel Recorde, for it is no Record, but nul tiel recouerie, and it ſhall be tried by the Countrie. Otherwiſe it is in the Kings Courts.
Of Recorde, which are the Kings Courts, as he is King. Otherwiſe, if the 9. E. 4. ibid.King hauehave a Court as Lord of a Mannour, that is but a Court Baron. And theſe hauehave that credit, that no auerment can be taken againſt any thing there entered or done. And therefore worke an Eſtoppell to the 15. El. Pl. 434.parties in like ſort, as Indentures did before. (a) 21. H. 9. 24.As vponupon a Leaſe made by fine, both (b) 5. E. 4. 1.parttes are eſtopped to ſay the Leſſor had nothing in the land.
So of Pleas in Barre, Replications, Returnes of the Sherife, &c.
Statutes.
1. E. 3. Cap. 4. Statut. 1. Auerment giuen in a Writ of falſe Iudgement againſt the Record certifyed.
Things alſo that cannot be granted but by Deed, paſſe here, and that more ſtrongly, by matter of Record.
The King taketh Hereditaments, 18. Eliz ploy. 483. 21. H 7. 19. 39. H. 6. 26. Stamf. praef. 56.though it be but for yeares. Otherwiſe it is of an Obligation or Chattell perſonall, by matter of Record onelyonly: for to perſonal and tranſitorie things, as Catalla felonum & fugitiuorum, wrecke of Sea, treaſure troue, and the profits of land of perſons out-lawed in a perſonall Action, &c. the King is intituled without office or other matter of Record: but to take a Free-hold by a Condition 3. Eliz. ploy. 229.broken, or purchaſe of his Villeine, or ſuch like, hee cannot without office or matter of Record. Otherwiſe it is, where the Law caſts a Free-hold vponupon him, as in a gift in Taile, the remainder to the King.3. Eliz. ploy. 229. 5. E. 4. 7.
And therefore alſo the King taketh a Free-hold without liuerie or ſeiſin by deed inrolled: but cannot be infeoffed by Deed, without inrollement of Record, for that no Liuerie can be made vntounto him.
Villenage beginneth onelyonly by confeſſing Lit. 39.a mans ſelfe to be one in a Court of Record And therefore in a Praecipe quod reddat, 41. E. 3. Villen. 6.if the Tenant ſay, That he is a Villeine to I. S. and holds the Land in Villenage, the demandant ſaith that is franke, &c. and he is found franke by the Iurie: yet he remaineth a Villeine to I. S.
Duties of the Teſtator growing by record, 21. E. 4. 21.muſt be anſwered by Executors before other duties.
Courts of Record are the Parliament, 1. H. 7. 20 the higher houſe. Br. Recogn. 8. the lower houſe.or Courts that hauehave ordinarie iuriſdiction. For the Parliament when it is ſitting, may take a Recogniſance, and doe ſuch other things as to a Court of Record appertaineth.
The Parliament is a Court of the King, Nobility, and Commons aſſembled, Hauing an abſolute power in all cauſes. As to make Lawes, to adiudge matters in Law, to trie cauſes of life and death; to reuerſe 23. El. Dyer 375. 1. H. 7. 19.errors in the Kings Bench, eſpecially where any cōmon miſchiefe is, that by the ordinarie courſe of Law there is no meanes to remedie: this is the proper Court for it. 37, Aſſ pl. 17.And all their Decrees are as Iudgements. And if the Parliament it ſelfe doe erre (as it 21 E. 3. 46. Br. Parliament 16.may) it can no where bee reuerſed but in Parliament.
Statutes.
4. E. 3. Cap. 14. & 36. E. 3. Cap. 10. A Parliament ſhall be holden once euerie yeare.
1. H. 4. Cap. 14. No Appeale ſhall bee purſued in Parliament.
Prerogatiue.
Statutes of reſtraint binde not vnleſſe they concerne the Common-wealth, or hée be ſpecially named: As the Statute of Weſtm̄ 2. which altereth fee-ſimple Conditionall, into an eſtate Taile, that Tenant in Taile ſhall hauehave no power to alien, doth binde him: for it is for the Commonwealth. So as Lands being giuen to the King in Taile, the Remainder ouer, if the K. hauehave iſſue who alieneth, & dieth without iſſue; hee in the remainder may enter. But if by Statute one be attainted, and his lands forfeit, with a prouiſo that of ſuch lands as hee was ſeiſed to the vſe of any other ceſty qui vſe may enter; that bindeth not the King that ceſty qui vſe ſhould enter vponupon him, for it is not for the Commonwealth. But the Statute of 1. H. 5. cap. 5. that in Enditements, addition muſt bee giuen to the partie indited, bindeth the king in that caſe becauſe Enditements are eſpecially named.
He may licence things forbidden by the Statutes. As to coyne monie which is made felonie by the Statute, and was before lawfull, for that is but malum prohibitum. But malum in ſe, as to leuie a nuſance in the High-way, hee cannot licence to do: but when it is done he may pardon it. But where the Statute ſaith his Licence ſhal be void, there it muſt hauehave a clauſe of Non obſtante; that is to ſay, this clauſe, (notwithſtanding any Statute) elſe it is not good. As the Statute 23. H. 6. cap. 18. is, That the Kings Grant to be Sherife of any County, longer than a yeare, ſhal be void, notwithſtanding that the clauſe of Non obſtante bee in the Patent: yet with a clauſe of Non obſtante ſuch a Grant is good, and not without it. But neither without nor by that clauſe, hee can diſpence with a Statute before it bee made. And therefore a licence to carrie Bell-mettall out of the realm (notwithſtanding any ſtatute made or to bee made) is not good, if a Statute be made after that to prohibite it. For hee cannot diſpence with an Act of Parliament before it be made.
Courts of Record which hauehave an ordinarie Iuriſdiction, are either generall, whoſe Iuriſdiction extends throughout the Realme, or but within ſome Countie: wherefore theſe latter, for their order and 34. H. 6. 41.courſe of proceeding, doe in all things faſhion themſelues to the example of thoſe higher courts, as of the parents from whom they come.
The former are thoſe that are holden in Terme time onelyonly: the whole yeare hauing foure Termes, Michaelmas, and Hillarie Terme, Eaſter and Trinitie Terme, and euerie Terme ſeuerall dayes of Returnes. If either the returne day, or firſt or laſt day of Terme fall vponupon the Lords day, then the day following is taken in ſtead of it.
Michaelmas Terme (beginning the 16. of October, and ending the 28. of Nouember) hath 8. returnes Octabis Michaelis that is the 8. day after the feaſt of Saint Michael. Quindena Michael, that is the 15. day after. Tres Michael, that is at the end of 3. weeks after. Menſe Michael, that is at the end of a monethmonth after. Chraſtino animarum, that is the next day after Chraſtino Martini, Octab. Martini, Quindena Martin.
Hillary Terme beginning the 23. day of Ianuary, and ending the 12. of Februarie hath foure returnes: Octabis Hillarij. Quindena Hillarij, Chraſtino purificationis. Octabis purif.
Eaſter Terme beginning 17. dayes after Eaſter and ending the Monday next after Aſſention day, hath fiue returnes. Quindena paſche, Tres paſchae, Menſe paſchae, Quin que paſchae, that is fiue weekes after Chraſtino Aſſentionis.
Trinitie Terme beeginneth 12. dayes after Whitſunday, & continuing, 19. daies, hath fiue returnes, Octab Trinitat. Quindena trinitat', Chraſtino Iohannis Baptiſtae Octab. Iohannis Baptiſtae, quindena Iohannis Baptiſta.
Statutes.
32. H. 8. cap. 21. Trinitie Terme ſhall begin the Monday after Trinitie Sonday for keeping of Eſſoynes, profers, returnes, &c. The full Terme ſhall begin the Friday after Corpus Chriſti day. And hauehave foure returnes onelyonly, Crastino Trinitatis, Octabis Trinitat': quindena Trinitatis, Tres Trinitatis. The reſt are cut off.
To theſe Courts belongeth the power of ſending forth writs.
A writ is a Latin letter of the kings from thence in Parchment ſealed with his ſeale.
All Writs hauehave a ſalutation, Rex to ſuch a one ſalutem, And a concluſion expreſſing the name of one which is witneſſe to the writ, called Teſte (who in writs out of the Chauncerie is the king himſelfe: in other writs the chiefe Iuſtice of the place) the place as apud Weſtmonaſtarium, &c. and the time both day and yeare of the making of it, if it be returnable, the day of the returne is alſo appointed in it.
The third writ (which is the Fluries) not ſerued, is a contempt, whereupon an Attachment 2. E. 4. 1.lieth. And therefore the third Fitz. Nat. Br. 68. …writ hath alwayes this clauſe in it, Vel cauſam nobis ſignifices. So may the ſecond which is the Alias alſo hauehave, if the Plaintife Fitz. Nat. Br. ibidwill.
The officer of theſe higher Courts is the ſherife to whom is committed the cuſtodie 2. H. 6. 7.of the Countie.
For matters ſpirituall, as certifying excomengement and ſuch like, the ordenary 7. E. 4. 14.is their officer.
And to the Sherife the writ muſt bee directed, though it bee for a thing done in a franchiſe, and he ſhall ſend to a Bailife of the franchiſe: who ſhall ſerue it as a ſeruant to the Sherife, and the Sherife returne it.
And though the Sherife ſerue an execution 2. H. 6. ibid.in a Franchiſe, yet it is good. And the Lord of the Franchiſe is driuen to his action vponupon the caſe againſt the Sherife, for the Sherife is immediate officer.
But in a place excepted out of eueryevery 2. H. 6. ibid.countie (as the pallace of Weſtm̄ is) it ſhal bee directed to the Gardian of the pallace, for he is immediate officer to the court, and in the nature of a Sherife.
So certificates of excommengement &, 7. E. 4. 14. 8. H. 6. 3. 12. E. 4. 15.ſuch like muſt be made by the Ordinarie, not by the Commiſſarie, Archdeacon, or any other, though hee hauehave an immediate iuriſdiction, vnleſſe he were ſpeciallie admitted an officer to the court.
Theſe generall courts, are the Chancery and two benches: the Kings Bench, and Common-place.
Chancery which beſide that it dealeth with matters of Conſcience, and moderating the ſtrictneſſe of the common law by an abſolute power, dealeth alſo in ordinary courſe of law in diuers caſes eſpecially, in ſuits concerning the King, as petitions. Scire facias to repeale his patents, &c. and ſo it is a court of law and of record, where the Iudge is the Chancellor hauing the cuſtodie of the great Seale of England, vnderunder which paſſe all Writs out of the Chancery with Teſte meipſos; and alſo the Kings (a)4. El. Pl. 213.graunts, being therefore called letters patents, Though it bee of things which he hath in his naturall capacitie, as by deſcent from his mother, &c. and are (b) C…. Court… fol. 108.entred of record in this Court.
Statutes.
18. H. 6. cap. 1. The Kings letters patents muſt beare date the day of the deliverie of the warrant to the Chancellor, and not before, otherwiſe they are voide.
3. E. 6. cap. 4. EueryEvery one that hath any intereſt in any land or office by or vnderunder authoritie of the kings letters patents (made after the fourth day of Februarie 27. H. 8.) may make his title auowrie plea, &c. aſwel againſt the king as any other by an Exemplification (or conſtat) vnderunder the great Seale.
13. Eliz. cap. 6. So of the Patentees of King Henrie, 8. E. 6. Queene Marie, Philip and Marie, & her Maieſtie that now is and all claiming vnderunder them.
Such graunts are effectuall to paſſe a freehold from the King without any liuery 38. H. 8. Br. Patents 101.of Seiſin. And therefore his letters pattents being Tenant in Taile make no diſcontinuance. And being matters of record, which being no lyuerie, they take effect from the time of the date. Therefore the Kings Charter of pardon ſhall bee pleaded 37. H. 6. 21.without ſhewing when it was deliuered, becauſe being a matter of record, it ſhall hauehave relation to the date, and not to the liuerie. Otherwiſe it is of a deed.
In default of a Chancellor, the Lord-Keeper of the great Seale hath his authoritie.Stat. 5. El ca. 18.
The Keeper (or Maſter) of the Rols, is an aſſiſtant to this Court.
In the Kings Bench and Common place, the Iudges are one chiefe Iuſtice, and thrée (or ſometimes more) other Iuſtices. The teſte of their writs is, teſte Iohanne Popham (the chiefe Iuſtice, &c.)
The Kings Bench is that which dealeth 10. El. ploy. 320.properly with Pleas of the Crowne, both hearing and determining them.
The Common place which dealeth properly 10. Eli. ibid.with common Pleas, ſuch are thoſe termed which concerne poſſeſſions.
Prerogatiue.
The King hath a proper Court of this kind, for al things touching his reuenues, 10. Eliz ibid.called the Exchequer.
The Iudges whereof are called Barons, or houſebands for the Kings Reuenue: being one chiefe Baron and three other. And this alſo hath a Court of Chancery before the chancellor & Barons of the Exchequer, called the Exchequer chamber.
The Eſcheator here is a ſpecial officer, 4. E. 4. 24. He may take Inquiſitions virtute officij.and hath a kind of Court for finding out the Kings title to lands, tenements, or other things.
Statutes.
14. E. 3 cap. 8. No Eſcheator ſhall tarrie in his office aboue a yeare.
Theſe are the Courts whoſe juriſdiction extends throughout the Realme.
Thoſe which deale but within ſome Countie, are the Sherife in his turne, and the Coroners.
The ſherifes turne is a Court of record F. N. E. 82.for offences which are common grieuances. As a robberie, (a)22. B. 4. 22.bloudſhed, clipping & waſhing of ſiluer and gold, night walking, the not repairing or making cleane of a bridge or a ditch, (b)10. H. 6. 7.fraies and aſſaults, &c. But not (c)22. E. 4. ibid.murder or breaking of ones hedge, &c. for they are no common grieuances, but a wrong to one ſingular perſon.
Whereunto eueryevery man of the age of 12. F. N. B. 161. Brit. per Br. leet 39years & vpwards (being within the precinct) oweth ſuite, & muſt be ſworne to the Kings Allegeance. And this is called a ſuit 12. H. 7. 18. 25. E. 3. 23. …reall, being not due by reaſon of mens freeholds, but of their body, becauſe they are reſiant within the precinct of the Leet. But Brit. per Br. ibid.women are not compellable to come thither nor to be ſworne to the king. And therfore when a woman is outlawed, ſhe is ſaid to F. N. B. ibid.be waued and not outlawed, becauſe ſhe is neuer ſworne to the Law.
Piers of the Realme are excepted: And Stat. Marl ca. 16. ſo reciteth it.perſons of Churches, and other men of Religion, as appeareth before.
The offendor here ſhall be amerced, and diſtreined for that amercement, throughout 2. H. 4 24. 8. R 2. auowry 194.the whole precinct of the Countie.
Statutes.
Magn̄ Chart. 35. The ſherife ſhall make his turne throughout the Hundred but twice a yeare, that is to ſay, once after Eaſter, and againe after Michaelmas. And the view of frankpledge ſhall be made as ſhe turne of Michaelmas.
31. E. 3. cap 14. Stat. 1. The turne muſt be yearly, once within a monethmonth after Eaſter, and another time within a monethmonth after Michaelmas: if they hold them in another manner, they ſhal looſe their turne for the time.
1. E. 3. cap: 17. Endictments in Sherifes turnes muſt be by Rols indented, one part to remaine with the enditors, the other with the ſherife.
1. E. 4. cap. 2. vponupon endictments and preſentments taken before Sherifes, or their miniſters, at their turnes, or Lawdayes, they ſhall not attach, arreſt, or impriſon, nor leuie any fine, or amerciament of any perſon ſo indited (or preſented) but ſhall deliuer the ſame enditements or preſentments to the Iuſtices of peace of the ſame Countie, at their next Seſſions, who ſhall proceed thereupon, as if they were taken before them.
1. Ric. 3. cap. 4. None ſhall bee returned vponupon pannell of enquirie of the Sherifes turne, but men of good name and fame, hauing within the ſame freehold land to the yearely value of xx. s. or copie land to the yearely value of xxvj. s. viij. d. and eueryevery enditement otherwiſe taken ſhall be void.
The Coroners Court, is a Court for Stamf. ….matters of the Crowne. Batterie, mayme, rape, murder, &c.
Statutes.
Weſtm 1. cap. 10. Coroners ſhall be choſen in all Counties, of the wiſeſt and ſufficienteſt Knights.
14. E. 3. cap. 7. That no Coroner ſhall be choſen, vnleſſe he hauehave land in fee ſufficient in the ſame Countie, whereof he may anſwer to all manner of people.
28. E. 3. cap. 6. Al Coroners of the countie ſhall be choſen in the full Counties, by the Commons of the ſame Counties, of the moſt connenient and moſt lawfull people that ſhall bee found in the ſame Counties to do the office. Saued alwayes to the king, and other Lords which owe to make ſuch Coroners, their ſeigniories, and franchiſes.
Weſtm. 1. cap. 10. The ſherifes ſhal hauehave Conterrols with the Coroners, as well of their appeales, as of enqueſts of Attachments; and of other things which to that office doth belong.
Weſtm̄ 1. cap 10. Coroners muſt take nothing for doing their office.
VponUpon iuſt cauſe of exception to the ſherife, proceſſe out of the higher Courts ſhall 14. H. 7. 31. 4. H. 7. 3.be directed to the Coroners.
Prerogatiue.
The Steward and Marſhall of the Kings houſe, hauehave a Court, for al perſonel Diu. of courts f. 102actions, and pleas of the Crowne, ariſing there. As debt, couenant, treſpaſſe, &c. & by the common Law they might hold plea of freehold it ſelfe, as it ſeemeth by the ſtatute of Artic. ſuper Chartas cap. 3. which ſaith, from henceforth they ſhall not hold plea of Diu of courts f 102 Stamf. 57. a.freehold. Alſo they may enquire of treaſon, murder, felony, manſlaughter, bloudſhed, &c and take appeales of al kinds of felony and maime.
Statutes.
Artic. ſuper Chart. cap. 3. They ſhal not hold plea of any contracts & couenants but ſuch as one of the kings houſe maketh with another of the ſame houſe. Nor of any treſpaſſe, vnleſſe the partie were attached, and the plea determined before the kings departure from the place where the treſpaſſe was committed.
Any thing attempted here againſt, is void.
Pleas of felony (that cannot be determined, before the Steward, becauſe the felons cannot bee attached, or for other like cauſe) ſhall be referred to the common law.
5. E. 3. ca. 2 & 10. E. 3. ca. 2. Enqueſts ſhal be taken there by men of the county about, and by no men of the kings houſe, except it be in couenants, contracts, & treſpaſſes, when either partie is of the kings houſe.
5. H. 6. cap. 1. The defendants may auerre that themſelues or the plaintife (at the time of the ſuite commenced) were not of the Kings houſe againſt the Record.
13. Ric. 2. cap. 3. The iuriſdiction ſhal not paſſe aboue 12. miles about the K. houſe.
33. H. 8. ca. 12. The Lord Steward of the Kings houſe alone, and (in his abſence) the Treaſurer and Comptroler of the K. houſe, with the Steward of the Marſhalſy, or two of them (whereof the Steward of the Marſhalſy to be one) may without commiſſion heare and determine all treaſons, miſpriſions of treaſons, murders, manſlaughters, & bloudſhed, within the K. houſe, although the king be remoued before. The enquiring and verdict muſt be by the kings houſhold ſeruants in the Check Roll.
No Clergie, nor ſanctuary, to any that is found guiltie before them.
By reaſon alſo of certaine franchiſes, grow two other Courts of records, which deale within ſome certaine precinct: a Leet and Court of Pipowders.
A Leet is a Court of Record, hauing Fit. N. B. 82. 23. E. 3. 22.the ſame iuriſdiction within an hundred onelyonly, or ſome leſſe preciuct, which the Sherifes turne hath in the Countie, the …1. E. 4. 22.profit of, it beeing to a common perſon. Therefore it (a)22. E. 4. 22.dealeth with offences that are common grieuances. And (b)F. N. B. 161. Brit. ꝑ Br. l…et 39.all (but Piers of the Real me) owe ſuite vntounto it, and muſt be ſworne to the Kings Allegeanee. And the (c)2. H. 4 24. 8. R. 2 Auowry 194offendor for an amercement ſhall be diſtreined through out the precinct of the Leete. And that as well out of the Land holden of the Lord of the Leete (where the offence was done) as within it. The Sherifes turne as an ouerſeer of this Court, is to (d)31. H. 6. leet 11enquire whether the tythings be whole, or no: to (e)12. H. 7. 18.preſent defaults that are not redreſſed in the Leete: And if (for miſuſer or other cauſe) the Leet be ſeiſed into the kings hands, all the people ſhall come to the ſherifes turne. But (f)29. E. 3 21. Auowry 247.otherwiſe the ſheriefe in his turne hath no power to enquire of an offence done within the Leete.
A Court of pipowders is a Court of record, (ff)6 E. 4. 3. 7 E 4 23. A writ of Errour lieth there, and not a writ of falſe iudg.incident (g)Stat. 17. E. 4. ca 2 ſo reciteth it.to Faires and Markets: but by (h)13. E 4 8. Ibid.cuſtome, a Court of pipowders may bee held, out of Faire or Market: for all actions ariſing there, by reaſon of any contract, couenant, treſpaſſe, debt, &c. (i)4. M. Dy. 133▪And the ſuite muſt at the ſame time be commenced.
Statutes.
17. E. 4. cap. 2. made perpetuall, 1. R. 3. cap. 6. No plea ſhall be holden in Court of Pipowders, vnleſſe the plaintife or his Atturney ſweare, that the matter of declaration was done in time of the ſame Faire, & within iuriſdiction thereof, but that oath ſhal be no concluſion to the defendant, but that he may pleade as he might before. EueryEvery Steward, &c. holding plea contrarie, forfeiteth C. s.42. aſſ. pl. 12.
The King (by commiſſion vnderunder his letters pattents) but not by writ, may erect other Courts at his pleaſure.
Such were Iuſtices of Eyre, and ſuch Courts of record in Corporations, and other places, by ſpeciall Charter.
The Kings Councell alſo is a Court, to deale with the puniſhment of contempts, and called the Starre-Chamber. But this is no Court of Law.
Statutes.
3. H. 7. cap. 1. The Chancellor, Treaſurer, and priuie ſeale, or two of them (calling vntounto them a Lord Temporall, and another ſpirituall of the Kings Councell, and the two chiefe Iudges) may examine ryots, maintenances, &c.
Theſe are the Courts of record. A court Baron is the Court of a common perſon. F. N. B. 239. ꝓ Br. iuriſd. 99. F. N. B. 239 g.And is for perſonall accounts vnderunder the value of xl. s. For a Treſpaſſe lieth not in a Court baron of damages aboue xl s. And a Superſedeas lieth to the Sherife, vponupon diuers plaints in the Countie Court, eueryevery one vnderunder xl. s. when all are for one entire debt of xl. s. Or vponupon an Action of Couenant brought there to the damage of aboue xl. s.
Theſe cannot be kept oftner then euer is three weeks. But ſo it bee not oftner then Br. leet 32.from three weeks to three weeks, it may be holden as often as the Lord wil. And therefore 21. E. 4. 5.to hold of one by doing ſuite at his court of D. at Mich and at Eaſter, it is to be entended at his Court Baron; for though a court Baron be commonly holden from 3. weeks to 3. weeks: yet ſuite of Court may be once, twice, or thrice a yeare, as it is firſt reſerued.
The proceſſe here is by precept to the bailife, good enough, though it bee but by 16. H. 7. 14.word: Inaſmuch as the triall in a Court Baron is all by the Countrie, and not by Record: for all is but matter enfait.
The ſutors are the Iudges, both in an hundred Court, Countie Court, or Court 6. E. 4. 3.Baron, and the bailife and ſherife are but miniſters.
A Court Baron is the Lords, or the F. N B. 82.Countie Court. The Lords is either of a particuler mannor, or of a whole hundred. For a Court Baron is incident to eueryevery (a)34. H. 6. 49.mannor, and to eueryevery (b)13. H. 7. 19. 12. H 7. 17.hundred.
The hundred Court is that whereunto all the inhabitants within the hundred owe ſuit. By reaſon of their tenements. And is in effect but a Court Baron.
The Countie Court, which is incident 12. H. 7. 18.to the Sherife. For the Sherife hath two Courts by the common law, for gouernment of the ſhire: his Countie Court, (wherein one ſhall hauehave remedie againſt another for any matter betweene them) and the ſherifes turne. But the pleas holden before him in the Countie Court are not of F. N. B. 1….Record, though it be by writ of Iuſtices.