Law, Book 4 · Chapter 44

Law · Book 4 · Chapter 44

p. 441CHAP. 44.

Of Iudiciall proceſſe in the nature of new Originals.

IVdiciall proceſſe in the nature of new 17. E. 3. 76.originals (in none of which any freehold ſhall euer be recouered) but damages onelyonly, are theſe that follow. Firſt ſuch as command to doe ſome thing As,

1. Reſommons or Reattachment, according as a Sommons or attachment lay in 5. H. 7. 40.the firſt action, to receiue in the former plight a ſuite put without day. And may either reuiue the originall alone, or the whole proceeding by ſpecial words, in that Reſommons or attachment, as if it bee againſt the tenant after a voucher; the voucher is not receiued, vnleſſe ſpecial mention be of the vouchee alſo, nor any plea at all is reuiued but the originall onelyonly. But in eueryevery Reſommons after an iſſue, the iſſue is reuiued, for day is giuen to the Iurors expreſly; So is all the pleading by a ſpeciall reſommons. But no ſuch reſommons nor re…ttachment ſhal be vponupon a diſcontinuance, 24. E. 3. 48. Br. reſ…. 33.…hough it be in a writ of ward, where a re…ommons is giuen by the Statute, for vponupon … diſcontinuance the originall is deter…ined.

p. 4422. All certificatorie writs, as if in a F. N. B. 14.writ of right cloſe brought in antient demeſne the tenant vouch a foreyner to warrantie, and after purchaſe a Warrantia chartae returnable in the Common place againſt the vouchee, and thereupon a Superſedeat to the Baylife in antient demeſne Now if the plea of Warrantia chartae bee determined or diſcontinued in the Common place, the demaundant in the writ of right cloſe may ſue a writ out of the Chancerie, directed to the Iuſtices of the Common place, to certifie the King in his Chancerie of it. To the end that if it bee ſo, the Baylife in antient demeſne may proceed. So vponupon a Monſtrauerunt F. N. B. 16. c.ſued againſt the Lord in antient demeſne, and an attachment thereupon, becauſe he ſhall not bee driuen to anſwer to the attachment till the Court be a ſerteyned whether the lands be antient demeſne, o… no: the Plaintifes in the Monſtrauerunt muſt ſue a ſpeciall Writ to the Treſurer, and Chamberlayns of the Exchequer to certifie it. In like ſort vponupon an Indicauit purchaſed, F. N. B. 52.becauſe the tythes amount to the fourth part of the value of the Church, the other may hauehave the Kings Writ directed to the Biſhop to certifie the King in the Chancery of the value of the Church, to the end that if it amount not to that value, he may ha… a Conſultation. So vponupon ſurmiſe made i… F. N. B. 59. b.the Chancerie, that the Kings Comitee of … ward hath done waſt, a writ ſhall go fort… to the Eſchetor to certifie the King thereof p. 443…nd ſo in all other like caſes.

3. Cerciorare to remoue a record out of 36. H. 8. Br. Cercior. 20.Court of record into the Chancerie, for … record ſhall be remoued into the Com…on place, nor no enditement taken in the …untrey into the Kings Bench imediatly … any Certiorare, but firſt it muſt be certi…d into the Chancerie by a ſurmiſe, and …m thence ſent into the Common place, … Kings Bench, as the caſe is, by a Mitti…. 12. E. 4. 11.And eueryevery writ of error is a Certiorare …t ſelfe.

4. To remoue ſuits out of Court Ba…s, for a Recordare, Pone, or ſuch like, are …no other entent but onelyonly to remooue 3. H. 6. 3.…ewhat into the Kings Court, and are in … nature of a Certiorare. And vponupon the re…uethe recordare or pone is determined, for … plea ſhall not be holden vponupon them, but …n the plaint that is remooued, and the …t pledges ſhall ſtand. And theſe may be …thout ſhewing any cauſe in the writ, if … remoue be at the Plaintifes ſuite: but … without ſhewing good cauſe in the …it if it be at the Defendants ſuite. As …ng to remoue a plea in a writ of right to Fitz. N. B. 4▪ b.…w that the Baylife is heire to the land, or …eth vponupon him to maintaine the matter hauehave part of the land, or that the Te…t hath alledged baſtardy, or pleaded a …reine plea, or ioyned the miſe vponupon the …nd aſſiſe, &c. being to remoue a plea in Fit. N. B. 70. b.…pleuin by plaint, to ſhew that the de…dant auoweth for damage feaſant, and p. 444the Plaintife iuſtifieth by reaſon of C… mon of paſture, which is a plea touc… freehold, and therefore ſhould not be w… out writ.

Theſe are either to remooue pleas … writ, or by plaint without writ, Of the … ſort are a Tolt and Pone.

Tolt or Tollas is for the plaintife, but … uer Old N. B. 2. Fit. N. B. 4. a.for the Tenant, to remooue a writ … right out of the Lords Court into … Countie Court. And becauſe this being … Old N. B. Ibid.the plaintifes ſuite may bee without … cauſe, therefore this clauſe is put in eue… writ of right patent, Et niſi feceris vice c… faciat. Pone is to remoue into the Co… place in all other caſes, viz. (b)(b)F. N. B. 4. b c.ſaue on… in the caſe of a writ of right to be remo… out of the Lords Court into the Cou… Court. As (c)(c)F. N. B ibid.writs of right remoued i… the Countie Court by a Tolt, (d)(d)F. N B. 125. f. In admeaſ. of paſture.Iuſticies … Vicontiel writs in the Countie Court, repl… uins by Writ either (e)(e)F. N. B. 69. …n.there or (f)(f)F. N. B. 70. a.in a… other Court Baron. And all this indiffer… ly, (g)(g)F. N. B. 69 m. & 70 a in a repleu. & 125. f. in Admeaſ of paſture. Old N. B. 2. in a writ of right.either at the plaintifes or at the d… fendants ſuite. So vponupon a (h)(h)F. N B. 77. ….Natiue … ſued in the County, if the defendant alled… himſelfe franke, the Lord is driuen to … moue it by a pone. But a pone to remo… repleuin by writ out of any other Co… Baron then the Countie Court cannot … without ſhewing cauſe, though it be at t… plaintifes ſuite.

Of the ſecond ſort are a Recordare, … 3. H. 6 30.Accedas ad Curiam. In both which noth… p. 445…t the plaint ſhall be remoued, (a)(a)F. N. B. ibid.though …ey be at iſſue.

Recordare (b)(b)F. N. B. 70. b.is to remooue plaints in …ountie Courts. EueryEvery (c)(c)F. N. B. 18. a. bWrit of falſe …dgement vponupon a iudgement giuen in the …ountie Court is a Recordare in it ſelfe.

Accedas ad curia, is to remoue plaints in F. N. Br. 70. b. & 18. d.…y other Court Baron (e)(e)F. N. B. 18. d.EueryEvery Writ of …ſe iudgement vponupon a iudgement giuen … any other Court Baron then the County …ourt, is an Accedas ad curiam in it ſelfe.

This alſo vponupon good cauſe ſhewed in …e writ, lyeth for the tenant to remoue the F. Nat. Br. 4 a.…a in a Writ of right out of the Lords …ourt immediatly into the Common …ce.

5. Mittimus to ſend a Record out of the …hancerie, whether being certified thither …fore by a Certiorare, or howſoeuer elſe be…g there, into another Court of Record, to …e end they may proceed vponupon it. But the …hancellour may ſend ſuch a Record by F. N. B. 22. g.… owne hands, without any Mittimus, if pleaſe him.

6. Procedendo to proceed in ſuits. As if F. N. B. 3. c.…e Lord vponupon a writ of right ſued in his …ourt wil not hold his Court, the demaun…nt may hauehave this writ vntounto him, if a man F N. B. 17. ….…uſe himſelfe to be eſſoyned of the Kings …uice in any action where indeed he is not … his ſeruice, the Plaintife or demaundant …y hauehave this writ directed to the Iuſtices …mmanding them to proceed. So where F. N. B. 24.…e Iuſtices in any Court delay the Pl or p. 446the defendant, and will not giuegive iudgeme… for him where they ought to do it, the p… tie grieued ſhall hauehave a procedendo ad I… dicium.

Of this nature is a writ of conſultati… to proceed in the ſpirituall Court, wh… Old N. B. 32.one ſuing there for matters belonging … that Court, as for matters teſtamentarie, … concerning matrimonie, &c. is by a prohibition reſtrained to proſecute the ſuit.

Statutes.

24. E. 1. De conſultacione. A conſultation to be awarded by the Chancellour … chiefe Iuſtice of the King, vponupon ſight of the libell at the inſtance of the Plaintife.

50. E. 3. cap. 4. VponUpon a conſultation … duely granted, the Eccleſiaſtical Iudge may proceed in the ſame cauſe notwithſtanding any other prohibition. So the matter of the libell be not enlarged, nor otherwiſe cha… ged.

7. At writ of mainpriſe to ſet at liber… one baileable finding baile, that is to ſay, ſufficient perſons to bee bound for him … F. N B. 249 g.ſuretie to anſwer the action, which in reſpect of deliuering him into the hands … his frendes the ſureties, is called Baile, i… reſpect of their taking of him is calle… mainpriſe.

Such perſons baileable bee they wh… 4. E. 6. Pl. 67.are taken vponupon a Capias originall.

But not the defendant in (a)(a)6. H, v. 1. c.Appeale of Mayme, if the Mayme bee haynous: nor (b) West 1. ca. 15. Stamf. 71. & 72 In caſe of the death of a man.the principall in an enditement, or appeale of Felome, (c)(c)Stamf. ibid.nor the acceſſarie after attainder of the principal, (d)(d)Div. of courts fol.nor any in high treaſon, where all be principals.

Statutes.

Weſtm. 1. Cap. 15. Such as are accuſed of receit of felons of commandement, or force, or of aid in felonie done, and a man appealed by approuer, after the death of the prouer (if he be no common theefe, or defamed) ſhal be let out of priſon by a ſurety.

8 Recaptiō is for him whoſe goods being diſtreyned before for rent or ſeruices, but F. N. B. 71. c. Fit. ibid.not for dammage feſaunt: for there as oft as they are ſo found vponupon ones land, it is lawfull to diſtreyne them. For eury time is a new wrong, and a new treſpaſſe, are Fit. ib. 72 g. Fi. ib. 72. c & 71. …diſtreyned againe for the ſame thing, hanging the plea in the Countie Court, or before the juſtices. Though the firſt diſtreſſe were lawfull, and though the rent or ſeruice were behind againe, or not: for by the firſt diſtreſſe he ſhall hauehave a Returne til he be ſatisfied of all. And here the goods diſtreyned, muſt be the ſame parties goods. Fit. ib. 71. b. Fit. ib. 71. i.For if the Lord firſt diſtreyned his tenant, and after the beaſts of a ſtrager, no Recaption lyeth. But vponupon a diſtreſſe of two mens beaſts firſt, and after of the beaſts of p. 428one, it lyeth for that one: ſo vponupon a diſtreſſe Fit. ib. 71. e. Fit. ib. 71. f.of beaſts which a man hath in common with another, and after of ſuch beaſts as are his owne alone. Alſo he that taketh the ſecond diſtreſſe muſt bee the ſame partie that diſtrained firſt: as if the Lord diſtrained firſt, and then his ſeruant or Bailife diſtreineth againe by his commandement, or without his commandement, if he agree afterwards to it, as by ioining with his ſeruant or Bailif when they pray in aid of him. Otherwiſe not, though the Bailife make coniſance in his right: for it may be he hath no notice of it, and the partie hath remedie againſt the baily by an action of Treſpaſſe. But this writ lieth not Fit. ib▪ 72. d.after Non ſuits in the repleuin; becauſe there the plea is not hanging: but before auowrie in the Repleuin it doth, for the plaintif in the recaption may well count that the defendant tooke them for the ſame cauſe: And that may make a good iſſue, which the inqueſt may take notice of wel enough by the euidence of the parties. But vponupon a Fit. ib. 73. e.Repleuin ſued by plaint or writ in a Franchiſe, and not before the ſherif or the kings Iuſtices, no recaption lieth, though he bee diſtrayned by the ſame partie againe, and for the ſame cauſe, for the King will not direct this writ but to the Sherife. But if the ſuit be remoued before the Iuſtices by a Pone or Recordare, there a Recaption lieth as well for a diſtreſſe before the Pone or Recordare, as afterwards. And here the plaintife p. 449ſhall recouer dammages for the ſecond taking onelyonly, becauſe it is a contempt againſt Law, for which the defendant ſhal be fined if he be conuict before the juſtices, or amereed, if the conuiction be before the ſherife, but ſhall recouer no dammages for the taking nor the detaining of the beaſts. And therefore here the defendant ſhall not make auowrie, as he ſhould in a Repleuin, but onelyonly may iuſtifie the taking, as in an action of Treſpaſſe.

9 A writ De magna aſſiſa eligenda to the ſherife, to ſummon foure knights to chooſe Fit. N. B. 4. ….the grand Aſſiſe, when the miſe is ioyned thereupon in a writ of Right.

And this is a méere iudiciall Writ iſſuing out of the Common place when the plea hangeth there. But when the plea is in the Lords Court, or in the County Court, then it is an originall writ out of the chancerie.

10 A Certificate De Aſſiſe vponupon a verdict 7. E. 6. Pl. 85.giuen in an aſſiſe that is no perfect, whether not well examined by the Iuſtiees, or not fully inquired of by the Iurie, to bring in the ſame Iurors to giuegive a more perfect one. And this muſt be ſued in the ſame coū tie where the aſſiſe was ſued, and may bee F. N. Br. 181. …as well before other juſtices, as thoſe that took the aſſiſe: if the kings Bench, or common place be in the countie where the Aſſiſe paſſed, thē this writ may be ſued there. p. 450And beſide the writ it ſelfe directed to the Fit. ibid. d.ſherife, the Iuſtices muſt hauehave a patent made vntounto them as in the aſſiſe it ſelfe.

11 Proprietate Probanda vntounto the Sherife to inquire whether the property bee to the plaintif or defendant, when vponupon a repleuin F. N. B. 77. c. 2. El. Dy. 173.ſued, the defendant claimeth propertie, which determineth the ſherifes power to make Repleuin.

And this alſo may be meere iudiciall iſſuing out of the Kings bench (a)(a)1. E. 4. 9.or commō 2. El ib.place, (b)(b)2. El. ib.and returnable there.

Secondly hither belong thoſe that be prohibitorie, or reſtraine from doing ſomthing where the prohibition it ſelfe is in lieu of a Summons. And after that, the proces is an atachment and diſtreſſe. So in euerie writ which is vponupon a prohibition broken, F. N B. 163. d. Old N. B. 30. Old N. B. 28.as a quare non admiſit, quare incumbrauit: for eueryevery breach of a prohibitiō is a contempt in it ſelfe.

Of this ſort are

1 Prohibitions to reſtraine the party from ſuing in an inferior court, that ought not to hold plea of it: as in the ſpirituall court, for (a)(a)Old N. B 30.any plea that concerneth not matrimonie & wills, as for goods or debts, &c. and (b)(b)22. E. 4▪ conſ. 2though it be of matters for which the plaintifs hauehave no remedy by the common Law, as of a couenant broken without ſpecialtie, or debt, &c. againſt executors vponupon a ſimple Contract made by their Teſtatour. Or Pro laeſ…ne fidei againſt one which hath waged his law p. 451in an action of debt vponupon a ſimple contract 19. H. 6 Old N. B. 31. F. N B. Ph.and ſworne falſely. So if the Baylife in a Court baron hold plea of matter aboue xl. s. the defendant may hauehave a prohibition. And theſe prohibitions may be directed to the Iudge himſelf, not to hold plea in thoſe caſes, as well as to the Sherife, to reſtraine the partie from ſuing.

Such a prohibition is an Indicauit for the Defendants patron when the right of auowſon of any part of ones tythes is in demaund in the ſpirituall Court, betweene two Clarkes claiming from ſeuerall patrons. So as the Indicauit is alwayes betweene 12. E. 4. 13.foure perſons, whereof two are patrons, and the other two Clarkes. One claiming to hold of the auowſon of one patron, the other of the other patron, for an auowſon being a lay hereditament, whereſoeuer the patronage ſhould come in queſtion the Common Law is to decide it: But where that is not to come in queſtion, the Fit. N. B. 36.ſpiritual court ſhal decide it, by ſuit in that Court called ſpoliation. As a perſon accepting another benefice, or created a Biſhop, and hauing a diſpenſation to keepe his perſonage, ſhall hauehave a ſpoliation in Court Chriſtian againſt another Incumbent preſented by the patron, and then ſhall come in debate whether they hauehave pluralitie or diſpenſation, or no.

And this Indicauit lyeth though it bee 38. H. 6. 20.but the right of the twentieth or thirtieth part of tythes that is in demaund, for at the p. 452Common Law the Court Chriſtian had no power to hold plea of any part of diſmes, but a prohibition lay till the Statute of Weſtm. 2. cap. 5. which will hauehave an Indicauit to be of tythes to the value of the fourth part of the Church at the leaſt. But before that, it might hauehave beene of the xx. part, and the patron thereupon might had a writ of right, wherupon at the Common law there was a writ of the auowſon of the tythes of v. acres or x. acres, or one acre. But now ſince by the ſame Statute an Indicauit ſhall not be granted of leſſe then the fourth part, therefore there is a writ of the auowſon of the tythes of the fourth or third part. But at the Common Law there was no ſuch writ.

Statutes.

Weſtm̄ 2. cap 5. When the Parſon of any Church is diſturbed to demand tythes in the next pariſh by a writ of Indicauit, the patron of the parſon ſo diſturbed ſhall hauehave a writ to demand the auowſon of thoſe tythes. And after the plea deraigned in the Kings Court, then it ſhall proceed in the Court Chriſtien.

18. E. 3 cap. 7. pro clero & cap. 47. Writs of Scire facias to anſwer of diſmes in the Chancerie, and to ſhew why ſuch diſmes ought not to be reſtored the demaundants ſhall not from henceforth be granted. Sauing the Kings right as hee and his ance p. 453ſtors were wont to hauehave

2. A Superſedeas to ſtay any further proceeding in the ſuite. As if a writ of treſpaſſe F. N. B. 239. d. F. N. Br. 13. g.vi & armis be brought in a Court Baron, if vponupon a writ of right cloſe brought in antient demeſne, the demaundant and tenant put themſelues vponupon the grand aſſiſe, or the Tenant vouch a forreyner, or plea a forrein plea which cannot be tried there, if a Clark of the Chancerie or any of the ſeruants of F. N. B. 4…the Chancellor, or Lord keeper of the great ſeale bee ſued in any other place for a treſpaſſe, or other matter.

Of this nature are, a writ of peace for the Tenant vponupon a writ of right brought in the Lords Court, vouching one to warrantie out of the power of that Court, we 13. E. 3 vouch 269 c. E. 1. droit 45.call it a forreine voucher, or ioyning the miſe vponupon the grand aſſiſe to hauehave the matter c. E. 1. ibid.reſpited till the Iuſtices in Eyer come thither. Which if he bring not at the next Court day, after ſuch voucher or miſe ioyned, he loſeth his tenancie, the reaſon is, becauſe the Lord cannot make a grand aſſiſe to come. But if battaile be ioyned, that ſhall c. E. 1. ibid.be determined there, and after ſuch a writ brought the plea may proceed by leaue of the Iuſtices. As if the vouchee come before them and enter into warrantie, they may award that he ſhall go to the Court of the Lord and there warrant to the partie that 13. E. 3. ibid.vouched him, and aſſigne a day certaine of the Court, and alſo giuegive leaue and power to the Lord to hold his Court.

p. 454De libertate probanda for the Defendant vponupon a Natiuo habendo ſued in the County, F. N. B. 77. f.claiming to be franke to the Sherife to adiourne the plea before the Iuſtices in Ei…r. And therefore muſt be brought before any Old N. B. 46.pone deliuered by the Lord to the Sherife to remoueit. And this is a Superſedeas to the Lord not to proceed til the day of adiournment, nor to ceaſe the villein till the plea diſcuſſed.

Statutes.

25 E. 3. cap. 18. The Lord may ſeiſe the bodie of his villein, notwithſtanding that a Writ. De libertate probanda be hanging.

Idemptitate nominis for one moleſted by a ſuite againſt another of the ſame name. As if he be taken by a Capias or Exigent awarded F. N. B. 267. e.againſt the other, or diſtreined by proceſſe out of the Exchequer. And this Writ ſhall be either to the Eſcheator or Sherife according as he is vexed, or his goods taken by either of them, to ſurceaſe againſt him, or againſt his goods.

3. Protections cum clauſula volumus when the King in reſpect of the Defendant being in his ſeruice taketh him, for the plaintife can neuer hauehave a protection for him, vnleſſe it be in ſpeciall cauſes where the plaintife F. N. B. 28. g.doth become defendant, into his protection for one yeare to bee free from all 39. H. 6. 38.ſuits.

p. 455Writs of dower, Quare impedit, aſſiſes Old N. B. 21. 39. H. 6. ibid.of nouell diſſeiſin, and pleas before the Iuſtices in Eyer are accepted Therefore it ſhall for that time ſaue all defaults. So as 21. H. 6. 20.vponupon a protection (caſt in a plea perſonell) at the Niſi prius, and repealed at the day in Banke, yet the enqueſt ſhall not be taken by default, for the default was once ſaued. Otherwiſe it is of a protection diſallowed at the day in Banke. And a man may excuſe Fitz N. B. 29. b. 39 H. 6. ibid.his default at a Grand cape, or petit cape by caſting of a protection. But a protection can indure no longer then for one yeare, for otherwiſe it might bee for xx. xxx. or C. yeares, and by the ſame reaſon for a thouſand yeares, which were a great inconuenience and diſheriſon to the partie. But a protection for one yeare is not ſo, for after the yeare ended he may hauehave a reſommons and proceed in his ſuite: yet the King after the firſt yeare ended may take him againe into his protection for another yeare, though it be ſpace of ten or twentie yeares together, for in that caſe appeareth at the firſt no miſchiefe nor inconuenience, as there doth when he taketh him into his protection for ſo many yeares at once.

Statutes.

5. E. 3. cap. 7. No protection ſhall be allowed in writs of Attaint.

This kind of protection is double. Protectio 39. H. 6. 38.quia profecturus, when he is to goe beyond p. 456ſea in the Kings buſineſſe.

Protectio quia moratur, when he ſtayeth F. N. B. 28. ….there about it. Of which nature is alſo a protection quia in priſona, when being ſent beyond Sea in the Kings warres hee is there taken and detained in priſon. The going or ſtaying about the Kings buſineſſe in F. N. B. 28. g. 39. H. 6. 39.the marches of Scotland, or ſuch like places is counted as beyond Sea. But a protection quia moratur ſuper altum mare, is not good, for it cannot bee entended that hee doth abide there.

Statutes.

13. Ric. 2. cap. 6. A protection in reſpect of going beyond Sea diſallowed (except it be in voyage Royall, or buſineſſe of the Realme) where it beareth date after the ſuit commenced. And the Lord Chancellour hath authoritie to repeale it, if he go not in conuenient time, when he returneth.

A Statute of protection, 33. E. 1. Auerment is giuen againſt petition for the kings ſeruice.

1. Ric. 2. cap. 8. Protection (volumus) not allowable for victuall taken or brought vponupon the voyage or ſeruice, whereof the protection maketh mention, nor in treſpaſſes and other contracts made after the date of the ſame protection.

p. 457Prerogatiue.

The King may take his creditor into F. N. B. 28. b.his protection, that no other creditor ſhall ſue or atreſt him, till the King bee ſatiſfied, which is alſo a protection cum clauſa volumus.

Statutes.

25. E. 3. cap 19. A Creditor ſhall hauehave an action and iudgement againſt the kings debtor, notwithſtanding ſuch a protection. But not execution, vnleſſe he take vponupon him to pay the king, & then he ſhall hauehave iudgement and execution of both debts, as well of that due to the King as to himſelfe.

He may alſo by a writ called Warrantia diei, rehearſing that one which ſhould appeare F. N. B. 17.in proper perſon, whether it bee the plaintife or defendant, is in his ſeruice, wil that for one day no default be recorded vponupon him. So as if the tenant in a praecipe quod reddat make default at the grand Cape, or petit cape: yet before Iudgement vponupon that default, the King by his writ may make that it ſhal not hurt him. And this ſtandeth with reaſon, becauſe eueryevery man is bound to ſerue the King in his affaires. Neither is it material whether he be in the Kings ſeruice or not, when the King certifieth that he is: for it ſeemeth by the words of the writ, that the King by his prerogatiue may for one day warrant his default. And this writ cannot be granted but by the king himſelfe.

p. 4584. Eſſoyne de malo lecti, is a writ to warrant 19. H. 6. 57.an eſſoyne of lying ſicke a bed caſt by the Tenant in a writ of right: Commanding foure Knights to ſee him, and if he be ſicke to giuegive him day at the end of the year, and the day for ſo long adiournment is in that eſſoine.

Statutes.

Weſtm̄ 2. cap. 17. In an Eſſoine De malo lecti the demaundant may auerre by enqueſt, that the Tenant is not ſicke, nor in ſuch plight but that hee may come before the Iuſtices. Such an eſſoine ſhall not lye in a writ of right betweene two claiming by one deſcent.

5. A Ne admittas for either partie, plaintife or defendant, in a quare impedit, or aſſiſe F. N. B. 37. f.of darrein preſentment to the ordinarie, not to admit the others Clarke till the matter be diſcuſſed.

And this muſt be ſued within 6. moneths and not after, for after the ſixe monethes it F. N. B. ibid.is lawfull for the ordenarie to preſent by laps, but being ſued within the ſix moneths the ordenarie may neither himſelfe (b)(b)F. N B. 48 l.collate within ſix moneths (but afterwards by laps he may) nor (c)(c)Fit. ibid.admit the others Clark at any time, (d)(d)F. N. B. 48. b.though it be after the ſixe moneths, and though it be found for him by a Iure patronatus, which is a commiſſion that the ordenarie may grant to enquire who is the right patron.

p. 4596. A quare incumbrauit for him that ſueth F N B, 48. c.a Ne admittas, and after recouereth in a Quare impedit, or aſſiſe of darrein preſentment, though it be after the ſixe monethes, but before recouerie no quare incumbrauit lyeth againſt the ordenarie for incombring the Church, contrarie to the ne admittas. But of a collation or admittance before a F. N B. 48. b.ne admittas ſued, no quare incumbrauit (but onelyonly a quare impedit) lyeth, for the ordinarie can hauehave no notice till the ne admittas.

But no ne admittas, nor quare incumbrauit lieth in a writ of right of auowſon, though F. N. B. 48 q.the Church become void hanging the writ, and the Biſhop do encomber it, for the demaundant there ſhall not recouer the preſentment but the auowſon. And if he hauehave title to preſent, hee may preſent, and vponupon diſturbance hauehave a quare impedit.