Law, Book 4 · Chapter 48
CHAP. 48.
Of certaine ſpeciall writs wherein no Proceſſe lyeth.
THus farre of an Action, and the ſeuerall parts of it. And of writs both Originall and Iudiciall, that begin or proſecute the action. Beſide which, there be certaine other originals out of the Chancerie, which are as it were ſpeciall anomalies and exceptions from the former. Being not diductory to bring any matter into plea or ſolemne action, but onelyonly Commandatorie or Prohibitorie to do or leaue ſomething vndone. And therefore no Proceſſe at all lyeth in theſe writs, but onelyonly an (a)F. N. B. 6. b. 185 d. 134. a. Old N B. 15. 35.Attachment vponupon a contempt, for not executing or obeying them.
Of which nature are,
1. Commandatorie ones, theſe that follow. F. N. B. 26 3. c.Dote aſſignanda, is for the wife of the Kings Tenant, when the King is entituled by office of land, whereof ſhe is dowable, alwayes directed to the Eſchetor. And may bee either to deliuer her ſuch part of F. N B. 263. d.her land as is alreadie aſſigned to her in the Chancerie for her dower, or for the Eſchetor himſelfe to aſſigne her part vntounto her.
If her huſband held in chiefe, then ſhe F. N Br. 263. c.muſt firſt take an oath in the Chancerie, not to marrie without the Kings licence, before ſhe can hauehave this writ. But if he held of the King by Knight ſeruice, as of a mannor, or if hee held from one that is in ward F. N. B. 264. a.to the King by reaſon of his nonage, there ſhe ſhall not need to take any ſuch oath.
Homagio capiendo for tenant by homage aunceſtrell to compell the Lord to receiue 45. E. 3. 23.his homage, and is to ſaue his warrantie and acquitaile, which he loſeth if he be impleaded before the Lord hauehave receiued his homage.
Scutagio habendo for the Lord to hauehave eſcuage of his Tenants by Knights ſeruice, F. N B. 83 c.when the ſame is due, by reaſon of any voyage royall made by the King in proper perſon, or by his Lieutenants againſt the Scots, or them of Wales.
And to make his ſonne a Knight, or to F. N. B. 82. a. c.marrie his daughter, for the Lord to hauehave this aide of his Tenants, where it is due.
De corrodio habendo, & de Annua penſione, for the King. The (a)F. N. B. 230. afirſt to hauehave a corodie for his ſeruant, the (b)F. N. B. 231. g.other to hauehave a pencion granted to his Chaplein, (c)F. N. B. 230 atill he be promoted to a benefice. Both (d)F. N. B. 230. a & 231. g.theſe where the ſame are due. As (e)F. N B. 230. a.of common right a Corodie is due from eueryevery Abbey, Priory, or other houſe of Religion, whereof the King is founder in the right of his Crowne. A (f)Fit ibid. F. N. B. 229. b.penſion from eueryevery Biſhoppricke in England or Wales.
De libertatibus allocandis, for one whether a ſinguler perſon, Burgis, Citizen, or other, or a body corporate, empleaded before the Kings Iuſtices of the one Bench or other, Iuſtices errants, Iuſtices of the foreſt, &c. to hauehave the liberties granted them by the King, or his progenitors, to bee allowed where the Iuſtices wil not make allowance of them And therefore is to be directed to the Iuſtices themſelues, not to the ſherife, for he is but their officer, and ſubiect to be amerced by them, if he do not his office as he ſhould.
De executione Iudicij, to hauehave a Iudgement executed, whether the ſame were giuen Old N. B. 15.in a Court Baron, viz. the Court of the Lord, Hundred, or Countie Court, by writ of right Iuſticies, or plaint without writ, or in Court of Record. The ſame to be directed to the ſherife, if iudgement were giuen before the Baylife in the Hundred or Lords Court, to the Coroners if it bee before the Sherife in the Countie Court, to the Iuſtices themſelues if it be in a Court of record. And this writ is a Iuſticies.
De reſtitutione temporalium, where the temporaltie… before ſeiſed into the Kings F. N. B. 169.hands, are to be reſtored to a Pryor or Biſhop elect and conſecrate. And this muſt be directed to the Eſchetor.
De ſecuritate pacis, for him that is in feare of corporall hurt, to be killed, beaten, aſſaulted, F. N. B. 79.&c. or of the burning of his houſes, to be ſecured of peace in that behalfe, againſt the partie whom he feared And may be for either of theſe cauſes alone, or for both ioyntly in one writ, where a corporall oath muſt bee taken by him that ſtandeth ſo in feare. And that was wont to bee in the Chancerie before ſome Maſter of the Chancerie, by the auntient courſe of Law. But now they vſe to purchaſe ſuch writs by their friends there without taking of an oath, which maketh them to be ſued forth many times more for the vexation of the parties then vponupon any iuſt cauſe. The common forme of this writ ſince the Statute 1. E▪ 3. cap. 16. which appointeth Iuſtices of peace, is for the eaſe of the people ſomewhat altered, and it is called a ſupplicauit, directed ſometimes to the Iuſtices of peace, and to the Sherife, ſometimes to the Iuſtices or one Iuſtice ſole, and ſometimes to the ſherife onelyonly to compell the partie to find ſufficient mainperors in a reaſonable ſum of money, that he ſhall neither do nor procure any bodily hurt, or burning of the parties houſes; or vponupon refuſall, to commit him to the gaole till he doe.
De vi Laica remouenda, to remoue alllay force in any Church, eſpecially where debate Old N. B. 33.is betweene two perſons of a Church of prebends about the title, and one with force and armes holdeth the other out: and (a)F. N. B. 54.this writ may be as well vponupon the bare ſurmiſe of the Incumbent or partie grieued, without any Certificate made by the Biſhop into the Chancerie, of ſuch force as vponupon and by reaſon of ſuch Certificat. And there bee two ſeuerall formes of writ in theſe two caſes, but hereby the ſherife may not remoue the Incumbent out of poſſeſſion of the Church, whether he be in by right or wrong, for then he may hauehave a writ to reſtore him againe, but onelyonly remoue the force: and this writ is returnable or not returnable at the parties pleaſure that doth ſue the ſame, and may be returnable in the Common place, as well as in the Kings Bench.
Of clenſing ſtreets to hauehave the wayes, ſtreets or lands of a Towne Corporate, F. N. B. 185. d.of the Suburbs of it, to be made cleane, and ſo kept, when they be ſtencht, by dung and filth, hogſties, and ſuch like, whereby the ayre is corrupted and infected, to the indangering of the health, or other great diſcommoditie to the Inhabitants or Trauellers that way. But it ſeemeth that no ſuch writ lyeth for the Village in that Countrey, though they be not kept cleane, but for corporate Townes onelyonly.
De Leproſo amouendo, to remoue a Leper F. N. B. 234.or Lazer, that will come abroad to Church among his neighbours from the companie of men to ſome ſolitarie place of dwelling. And that is for feare of infecting of them: but if hee will keepe in his houſe, and not come among his neighbours, then it ſeemeth he ſhall not bee remoued thence, nor that any Lepers or Lazars ſhal be remoued by this writ, but onelyonly ſuch as appeare to be ſo by their ſpeech, vlcers, rottenneſſe of fleſh, ſtinke, and ſuch like, and not thoſe that though they be infected inwardly, yet appeare not ſo without.
De excommunicato capiendo, vponupon a ſignificauit, Old N. B. 34 & 35ſo we call the ordinaries Certificate into the Chancerie, that one excommunicate ſtandeth out fortie dayes, and will not be iuſtified by the ſenſures of the Church to impriſon, and ſo to iuſtifie him by his bodie, till he ſatiſfie holy Church for his contumacie and contempt, and this writ alſo is a Iuſticies.
De excommunicato deliberando to deliuer Old N. B. 35. a. F. N. B. 63. …. f.him out of priſon when the Church is ſatiſfied, and hath abſolued him.
De cautione admittenda, when one taken by an Excommunicata capiendo offereth ſufficient F. N▪ B. 63. c.pledge or caution to obey holy Church, which is refuled to hauehave that caution admitted and to be deliuered: and may be either to the (a)F. N. B. ibidordenarie himſelfe to command him to bee deliuered, which the ordinarie may doe by word, or to (b)F. N. B. 63 d.the Sherife to make ſuch deliuerance, and then it is withall, a de excommunicato deliberando.
De heretico conburendo, to cauſe one conuicted for an Hereticke to bee burnt. And F. N. B. 269.this as the other writs to bee directed to the Sherife, the partie being committed by the Clergie into the ſecular power. But by the Statute 2 H 4. cap. 15. EueryEvery Biſhop in his Dioceſſe may conuict a man of hereſie, and cauſe him to abiure, and after conuict him anew, and condemne him to the fire, and thereupon make a precept to the Sherife to take and cauſe him to bee burnt, and the ſame a ſufficient warrant to the Sherife without any writ of the King: but that Statute is repealed by 25. H 8 ca. 14. So as now the ordinary cannot commit him to the lay people to be burnt without the Kings writ firſt purchaſed.
De coronatore exonerando, to diſcharge a Coroner of his office vponupon iuſt cauſe. As if F N. B. 163. n.he cannot extend his office for other buſineſſes of the Kings that hee is imployed about in the ſame Countie, or bee old and feeble, or vnfit for the office, and hauehave not lands and tenements ſufficient in the countie whereupon he may dwell according to his ſtate, or hauehave the Palſey, or dwell in the remote parts of the ſhire, ſo as hee cannot conueniently exerciſe the office, or ſuch like.
And this writ is directed to the Coroner F. N. B. ibid.himſelfe.
De exonerando viridario foreſt…, to diſcharge a verder of the foreſt in like ſort.
De coronatore eligendo, to chuſe a Coroner, two or three if there be need of ſo many, F. N. B. 163 k.in full Countie, by the freeholders of the Countie. And this is commonly vponupon the death or diſcharge of ſome of the Coroners, when it is vponupon the diſcharge, then this writ renteth the cauſe of their diſcharge.
De electione viridariorum foreſtae, to chuſe F. N. B. 164. ….a verdor of the foreſt in like ſort. Conge deſlier, to Deane and Chapter, or ſuch like to chuſe their Biſhop.
Statutes.
25. H. 8. cap. 20. For the election, nomination, preſentation, inueſting, and conſecrating of Archbiſhops and Biſhops.
A writ for the royall aſſent to ſignifie to the ordenarie his aſſent to the election of an Abbot, &c. & to will him to execute that which belongeth to him, therefore this is alwayes to the ordenarie himſelfe.
Deſecuritate inuenienda qd ſe non diuertat ad partes extera ſine licentia Regis, to compell one to find ſufficient mainpernours in a reaſonable ſumme of money, not to go into forreine parts out of the Realme, without the Kings licence, nor any thing there attempt in contempt or preiudice of the king, or hurt of the people, nor ſend any thither for any ſuch cauſe. And as a Supplicauit may be directed to the Iuſtices of peace, or ſherife, or both. And eueryevery one vponupon ſurmiſe to the Chancellour may ſue this writ for the King: for by the Common Law eueryevery one that will may goe out of the Realme for merchandize, trauaile, or other cauſe at his pleaſure without the Kings licence. But the king may reſtraine any ſubiect by this writ, or by his priuie ſeale, or ſignet, or by proclamation without writ, or other commandement, becauſe eueryevery man is bound of common right to defend the King and his Realme.
5. Ric. 2. cap. 2. None ſhall go out of the Realme without the Kings leaue vponupon pain of forfeiture of his goods, except the Lords and other great men of the Realme, known Merchants and the Kings ſouldiers.
Statutes repealed. 4 Iac. cap. 1.
All dedimus poteſtatems. The principall of them are theſe.
Dedimus poteſtatem, to giuegive the Kings royall aſſent to the election of an Abbot, or F. N B. 170. …b.ſuch like, made or to be made, and to ſignifie ſo much by his letters to the ordenarie, that he may doe that which belongeth to him, and to receiue fealty, &c. commanding the partie to do the premiſſes. And therefore is directed to the partie himſelfe that muſt do theſe things.
Dedimus poteſtatem de fine leuando, to certaine F. N. B. 146. g. Old N. B. 103.perſons to take the acknowledgement of a fine out of Court, when one that hath agreed in the Kings Court to leuie a fine, is ſo feeble that he cannot trauaile, for eueryevery ſuch dedimus poteſtatem ſuppoſeth a writ of couenant, or ſuch like, hanging. F. N. B. ibid. 1. H 7. 9. Old N. Br. ibid.And they to whom this Writ is directed, muſt go in proper perſon to the parties to take the coniſance, which being certified to the Kings Iuſtices of the Common place, the fine ſhall be engroſſed. The chiefe Iuſtice of the Common place may take the acknowledgement of a fine without any dedimus 1. H. 7. 9.poteſtatem, ſo can no other Iudge, de rigore Iuris. But a Iuſtice of aſſiſe by a generall patent with a clauſe of non obſtante may
Statutes.
Stat. Carlife. 15. E. 2. The dedimus poteſtatem ſhall be directed to two of the Iuſtices, or one Iuſtice and a knight.
Prerogatiue.
Dedimus poteſtatem de Atturnato ſaciendo, for the Iudges to admit an Atturny for F. N. B. 25. ….one in a ſuite, whether it be for the plaintife or deſendant, demaundant or tenant, and in what action or ſuite ſoeuer the ſame be. This writ muſt be directed to the Iudges themſelues, and groweth by the Kings prerogatiue, for at the Common Law the parties muſt appeare in proper perſon, not by Atturny, although the Statutes gaue power afterwards to make Atturnies in diuerſe caſes; as appeareth before. But before thoſe Statutes it ſeemeth that the King might grant to any man to make an Atturny in any ſuite. And one reaſon thereof was, becauſe it is no error though the Iudge admit any plaintife or defendant to make an Atturny, where by the Law he ought not.
Prohibitory ones are theſe that follow.
A protection cum clauſula nolumus, to free ones poſſeſſions, land, rent, corne, cattell, Old. N B. 29. a. & b.carriage, &c. that nothing be taken againſt his wil for the Kings buſineſſe, by his officers or miniſters. This may be as well for a ſeculer as a ſpirituall perſon, and groweth by the Kings ſpeciall fauour.
Perſons or other ſpirituall perſons not to be charged to the payment of fifteenes, F. N. B. 176. a.for goods in their poſſeſſion annexed to their Churches.
Quod clerici non eligantur in officium baliui, Old N. B. 175 b.for a Clark, ſo is eueryevery termed that is within holy orders, not to be choſen an officer, as Bailife, Beadle, Reeue, &c. for his lands, and this writ reciteth that by the common Law they ought not, and commandeth that if any diſtreſſe or amerciament be leuied, in this reſpect, it be reſtored.
A prohibition to forbid tenant in dower, or by curteſie of England, or gardein by F. N. B. 55. e. 14 H. 8. 6. Shelly.Knight ſeruice, or in ſoccage, to commit waſt to the deſtruction of the inheritance. Tbe forme of the writ. F. N. B. 8. c. 14. H. 8. ibid.But this writ lieth not againſt leſſee for life or yeares, for they come in by their owne leaſe: but in the other caſes before the Law maketh their eſtate.
Statutes.
Gloceſt. cap 5. A man may hauehave a writ of waſt out of the Chancery againſt tenant by curteſie or dower, or otherwiſe for terme of life or yeares, and being attaint of waſt, hee ſhall forfeit the waſte and treble damages.
Weſtm̄ 2. cap. 14 The proceſſe in a writ of waſt ſhall be ſommons, attachment, diſtreſſe: and if he come not, then a writ vntounto the ſherife, taking with him xij. men to goe to the place waſted, and there enquire of the waſte, and vponupon that waſte returned, iudgement ſhall be.
11. H 6. cap. 5. Where the tenant grants ouer his eſtate, but notwithſtanding takes the profits, and commits waſt, an action lies againſt him.
Mag chart̄. ca. 4. The gardein may not cōmit waſt vponupon pain to loſe the wardſhip.
Cap. 5. And muſt repaire and ſuſteyne the houſes, of the profit of the land.
Gloceſt cap. 5. If the gardein commit waſt, and the wardſhip loſt anſwer not the value of the damages before the heires age, thē he ſhal render the damages to the heire.
Artic. ſuper chart. cap. 18. Eſchetor committing waſte vponupon wards lands, ſhall anſwer damages as is ordained before by Statute againſt them that do waſt in wards lands. So of a Subeſchetor, and if he be not able his maſter ſhall anſwer for him.
36. E. 3. cap. 13. Stat. 1. If the Eſchetor hauehave a ward to anſwer to the King of the iſſues, and commit waſte, the heire ſhall hauehave an action of waſt as well within age as of full age, and whileſt he is within age, if he cannot, his next friends ſhall hauehave the ſuite for him.
14. E. 3. cap. 12. The heire when he commeth to full age ſhall hauehave an action of waſt againſt the gardeins and fermours to whom the King ſhall let the land in ward according to that Statute.
Weſtm̄ 2. cap. 22. A writ of waſt giuen for one Iointenant or Tenant in Common, againſt another, wherein the defendant to be at his choiſe to take his part in certaine (and then to hauehave for his part the place waſted) or to agree from thenceforth to take nothing more then his Companions do.
Gloceſt cap 13. Hanging a plea by writ the Tenant may not commit waſt, nor eſtrepment of the land in demaund, and if he do, the demaundant may hauehave a writ to cauſe the land to be kept that no waſt nor eſtrepment be done.
A quo minus for grantee of eſtouers, as houſeboote or heyboote, &c. to reſtraine Old N. B. 159.the grantors from committing waſt, ſo as he cannot hauehave his eſtouers.
De exoneratione ſectae, for Tenants by ſuit of Court, or other rent or ſeruices that F. N. B. 158.they bee not diſtreined to doe the ſame for ſuch time as they ought to hold the land diſcharged. As one which is in ward to the King, a woman indowed in the Chancerie of lands ſo in ward, and the Tenants parauaile of ſuch a ward, that is to ſay, where the other Lords of whom the heire holdeth do diſtreine, for during ſuch time as the heire is in ward, either to the King or to his Committee, he is to doe no ſuite of Court or other ſeruices, and if any diſtreſſe be taken, it is by this writ to bee reſtored.
De deonerando pro rata, to diſcharge the F. N. Br. 2…5. k.tenant of parcell of the land, according to the rate of his land when hee is lawfully diſtreined for all the rent or ſeruices. As where a man which holdeth C. acres of land by the ſeruice of repairing a bridge, alien in fee xx. acres to one man, and xx. to another, and after vponupon this preſented one of the alienees, is onelyonly diſtreined to make reparation, or where the Kings Tenant by fealtie and rent alieneth parcel of the land, and the kings officer diſtreineth the alienee for all the rent, for the King is not bound by the Statute of Quia emptores terrarum, which will that the feoffee ſhall hold pro particula, but that he may diſtreine for all the rent in the part of the alienee, but ſuch a writ lyeth not where one that holdeth of a common perſon by fealtie and rent, alieneth part of his land, for there the Statute it ſelfe reſtraineth the Lord that he cannot diſtreine the alience, but after the rate and value of the land which he hath purchaſed
De effend. quiet. de Theolonio to officers of Townes or other places not to grieue ſpirituall F. N. B. 226. i.perſons, or other that ought to bee quit of paying of toll, murage, pannage, pontage, &c. whether by the kings grant or by preſcription.
De non ponendo in Iuratis, to diſcharge F. N. B. 165. a. d.Peeres of the Realme, or other perſons priuiledged: as Clarks that are in the kings ſeruice, &c. from being of Iurie, vnleſſe their preſence be for any ſpeciall cauſe neceſſarie. And this may be directed either to F. N. B. 165. ….the Sherife not to put them into Iuries, or to the Iudges to diſcharge them. But if a Piere of the Realme be returned, hee muſt be ſworne or loſe iſſues, if hee appeare not, vnleſſe he bring the writ.
Ne eueas regnum, to the party himſelfe to inhibite him to go into forrein parts without F. N. B. 85. ….the Kings licence.
FINIS.