Law, Book 4 · Chapter 2 – Chapter 3
CHAP. 2.
Of Writs Originall.
OF an action, there be two parts, Suite, and Iudgement.10. El. Dyer 2…. 5. El. Dy. 220.
Suite, is the parties dealing in the action: and therefore all that while it is ſaid to depend in plea, but not after Iudgement. The partie that bringeth the action, is called Plaintife in a perſonall action: demaundant in a reall: he againſt whom it is brought, Defendant in the firſt, Tenant in the other: who for their helpe are allowed councell learned in the Law.
Statutes.
Weſtm̄ 1. cap. 25. No miniſter of the King may maintaine another in any action in the Kings Court to hauehave part of the thing, or other profit by couenant vponupon paine of puniſhment at the Kings will.
Weſtm. 2. cap. 49. None of the Kings officers ſhall take, or purchaſe, or bargaine for land, tenement, or aduowſon whileſt the thing is in plea, vponupon paine to bee puniſhed at the kings pleaſure, as well the purchaſer as the other.
Artic. ſuper chart. cap. 11. Neither the Kings officer, nor any other ſhall do ſo vponupon paine of forfeiting to the King ſo much of his lands as a mounteth in value to that he purchaſeth. Any may ſue for the King before the Iuſtices, before whom the plea hangeth.
32 H. 8. cap. 9. None ſhall, buy, ſell, or get, or take promiſe, or grant to hauehave, any pretenſed rights or titles to lands, &c. except the ſeller, or thoſe (by whom he claimeth) were in poſſeſſions, or tooke the profits, by ſpace of a yeare next before, vponupon paine that the Seller, &c. ſhall forfeit the value of the land, and likewiſe the buyer knowing the ſame. Prouided, hee that is in lawfull poſſeſſion by taking the yearly profits, may buy, &c. anothers pretenſed right.
Glouceſt▪ cap. 8. Atturnies may be made in all pleas, where appeales lye not.
Met. cap. 10. In ſuits; at a Countie, tything, hundred, wapentake, or Court of the Lord.
Weſtm. 2. cap. 10. A generall Atturny may be made, in all Counties where Iuſtices do iourney.
3. H. 7. cap. 1. An appeale of murder or death, may be purſued by Atturney.
The ſuite hath two parts, the beginning and proceeding.
The beginning is the proper dutie of the plaintife. And hath two parts.
The firſt matter of the ſuite, and originall proceſſe.
The firſt matter of the ſuite muſt alwayes be brought in that Countie where the cauſe of ſuite groweth. As actions of 14. E▪ 4 4.debt vponupon an eſcape, may be brought in the Countie where the arreſt or eſcape was. But not in any other Countie: A (a)2. Mar. Br. attaint 104.treſpaſſe of battery, goods carried away, or writings broken, may be brought in any Countie; for they are not locall. Otherwiſe it is of trees, or graſſe cut downe, they muſt bee (b) Br. bill 35.brought in their proper Countie, if it be by bill, the Countie is ſet at the margent.
Statutes.
6. Ric. 2. cap. 2. Debt, account, and all ſuch actions ſhall be brought in the countie, where the contract was made.
The firſt matter of the ſuite is for eueryevery man by writ out of the Chancerie, or in Courts where writs lye not by plaint or bill: for the King alone by enquirie.
In all of the firſt kind, the plaintife muſt find ſuretie by ſome that will be pledges to proſecute the ſuite. And ſo is the forme of euerie originall Si (the Plaintife) fecerit it ſecuram de clamore ſuo proſequendo, The entrie is, plegij de proſequendo Iohannes D…. Rich. Roo. And theſe may be either to the 9. E. 4. 27.officer, or to the Court where the ſuite is. But a poore man in ſtead of ſureties ſhall Regiſt fol. 228 et per Br pledg 29.giuegive his faith to proſecute it: whereupon the forme for him is, Et niſi fecerit & praedict, (the plaintife) fecerit te ſecurum de clamore ſuo proſequendo per fidem ſuam quia panper eſt.
Writs that begin the ſuit, are originall, or Commiſſionall.
Originall which appoint the firſt proceſſe, if the plaintife find pledges returneable in the Kings Bench, or Common place.
This muſt be (a)…. E. 3. 4.true Latin, for vponupon habeas ibi hos (b)9. H. 7. 16.breue, or vxori (c)3. E. 3. 86.where it ſhould be vxor, and ſuch like, the writ ſhall abate, and beſide (d)3 E. 3 ibid. All this that followeth is the rule of the Regiſter.formal, As (e) the Generall to be put in demand, and in plaint before the ſpeciall. As land is generall to pree, paſture, wood, ioncarie, marſh, &c. Wood is the generall of all trees growing, and therefore ſhall bee put in demand before Alders and Willowes which are but ſpecies of it. The entier ſhall be demanded before the moyetie or part or parts. The more worthie thing ſhall be demanded before the leſſe worthie, as a meſſuage before land: for land that hath building vponupon it, is more worthie then land without building. A Caſtle, before a meſſuage, or a mannor (and yet it may bee parcell of a mannor.) But the reaſon is becauſe a caſtle is more worthie. As being a place of force and defence againſt the enemie in time of warre, and againſt Rebels in time of rebellion, a place in time of peace fit for the correction and impriſonment of great Malefactors, and a magnifical habitation for Noblemen▪ So in a repleuin, if it bee of two Chattels, one quicke and the other dead, the liuing thing ſhall be firſt demanded.
Alſo it muſt expreſſe the name of baptiſme, and ſurname, or in liew thereof, the name of dignitie both of the plaintife and defendant. But not the name of his office, which is no dignitie. As pr. q. r. Iohanni Duci (a)8. E 4. 24. E 4. 24. ſaith, the reaſon is becauſe there are in Englād no more Dukes of that name: and ſo i… may well enough be knowne of whom it is meant: and alſo for the ſelemnitie of the creation. But otherwiſe it it of knights for there are 1000. Knights in England. Therefore there the writ muſt be pracipo I. S. militi.Lancaſt. is good, but not Iohanni Rectori (b)27 H. 6. 3.de D. without expreſſing his ſurname. But when an officer is to ſue by reaſon of his office, as a (a)13. E. 3. br. 675 in act reall.prebendary (b)12. H. 4. 20. in Aſsiſe. 10. H. 7. 5. in waſt. 18 Ed 4. 17. in annuitie.perſon, executor (c)30. H. 6. 5.gardein (d)9 E. 3. 465. 33. H. 8 Dy. 50. 37. H. 6 29. 27. H. 6. 3.by Knight ſeruice, &c there he muſt expreſſe the name of his office: or when one bringeth an appeale of murder, …s brother and heire, &c.
Where there be many of one name, diuerſitie of the names muſt be put by addition of eigne puiſne, &c. elſe the writ ſhall abate.
A Corporation may ſue by the name that they are corporate, without name of Baptiſme or ſurname, as pr q. r. maiori & comunici L. &c. or Decano et Capitalo D. &c.
Statutes.
1. E. 6. cap. 7. The acceptance of a new name of dignitie ſhall not abate the writ.
The kings ſeruants in his Court or other by ſpeciall grace of the Chancellour Regiſt. fol. 2…8. & per Br. pledg 29.may here bee admitted to finde pledges in the Chancery. And then the forme is, Quia praed. (the plaintife) fecit nos ſecures de clamore ſuo proſequendo pro C. de com. L. et D. de com. S. ſummoneas, &c.
CHAP. 3.
Of Common pleas.
VVRits original are concerning Lit. 116.Common Pleas, or appeales that concerne life.
Thoſe that concerne common Pleas, lye not for or againſt 18. E. 4. 4.a fem couert without her huſband, but (a)1. H 4. 5. Stamf. 62, a.an appeale of felonie againſt her doth.
Many hauing or giuing ioyntly cauſe of action, may ſue or be ſued together in one: which is called Ioinder in action. As A. is bound to B. in one ſtatute merchant, and 20. E. 3. Audit. Querela 28.after A. and diuers others are bound to the ſame B. in another ſtatute, and B. by one deed releaſeth to them all, and after ſueth execution ſeuerally: They ſhall ioyne in an Audita querela, becauſe of this Ioynt releaſe. So one Decies tantum ſhall be againſt 36. H 6. 28.all the Iurors that take money to giuegive their verdict, for it is the entire act of all.
Seuerall actions of one nature, as debt, and detinue (for theſe are of one nature, inaſmuch 3. H. 4. 13.as the warrant of Attorny in a writ of detinue, and alſo the eſſoin. ſhall bee in placito debiti) may be ioyned in one originall with ſeuerall praecipes, or commandements to be executed.
Prerogatiue.
Here in place of action againſt the King, petition muſt bee made vntounto him in the Chancery, (a)Stāf. prer. 73.or in (b)Stāf. prer. 73.Parliament, for (c)Stamf. prer. 42.no action did euer lye againſt the K. at the Common Law, but the partie is driuen to his petition, and (d)34. H. 6. 5.if the Eſchetor ſeiſe goods without cauſe, or ſeiſe the goods of one outlawed, which outlawry is after reuerſed, and account for them in the Exchequer; the partie muſt ſue by petition for them. And that (in the caſe of hereditaments) 9. H. 6. 15.though the King hauehave granted the ſame away. For vponupon an office finding I. S. (who was attainted of felonie or treaſon by matter of record before) to be ſeiſed of certaine land, if the King ſeiſe and grant i… ouer, yet a ſtranger that hath right to enter or bring his action may do neither againſt the patentee, but muſt to the K. by petition. Whereupon proceſſe ſhall goe out againſt the Grantee to maintaine his title. As the Stamf. prer. 76.king grants ouer his wardſhip, or any other certaine eſtate in the land: the Scire facias for him that ſueth the petition, muſt be againſt the patentee, not againſt the heire, in whoſe right the king is ſeiſed, for hee is not to pleade with the Heire, but with the King or him that hath his intereſt. And in a petition to reuoke letters pattents made to two 7. H. 4 33▪&c. a Scire facias vponupon it: the death of one of the patentees abateth not the petition, for the petition is not ſued againſt the patentees, but againſt the king, nor they need not to be named in the petition, but in the Scire facias.
But whileſt perſonall things ſeiſed for the King, remaine in the officers hands, …. E. 4. 24.the partie that hath right may trauerſe the Records that entitle the King, and ſo hauehave his goods againe, or ſue the officer, or diſturbe him to take the profits: As where it is found that one outlawed in a perſonall account, was ſeiſed of certaine land; and in this caſe he ſhall not be driuen to a petition: otherwiſe it is in caſe of a freehold, or inheritance.
Petition is a ſupplication declaring the …. E. 4. 52.parties right, where mention muſt be made of all the Kings title; elſe it ſhall abate. For vponupon an iſſue in the petition found againſt thc king, he ſhall be concluded for euer to claime by any of the points contained in the petition.