Law, Book 4 · Chapter 16 – Chapter 18
CHAP. 16.
Of Treſpaſſe whereof Parco fracto, reſcuous, and eiectione firmae.
SVch are thoſe without force: coupled with force is an action of Treſpaſſe, for a treſpaſſe done whether in goods or vponupon his land. And ſo if it be of a bodily treſpaſſe, as batterie, &c. But in maime and rape it is called an appeale. An action of Treſpaſſe brought in a Court baron, F. N. B. …39. d. F. N. B. …5. f. 86. a.whether by plaint in the Court of a mannor, hundred, or Countie Court, or by writ in the County Court, muſt not ſuppoſe it to be done by force and armes, for then a (…) F. N. B. 239. d.Superſedeas lyeth ſhewing that a plea of Treſpaſſe Quare vi & armis ſhall not be holden in a lower Court then before the King or other Iuſtices by his commandement. And therefore no Capias lyeth there either in Proceſſe or execution, but in Courts of 3. H 6. 54.Record onelyonly.
Statutes.
Marleb. cap. 38. A writ of Treſpaſſe is giuen to the Succeſſors (in religious houſes) for goods taken away from the Predeceſſor, whether hee commenced action in his life, and died without Iudgement, or though he commenced no action.
And likewiſe to recouer their owne ſeiſin againſt intrudors in time of vacation, wherein damages are alſo giuen.
Marleb. cap. 4. If the Lord diſtreine for his ſeruices when none are due, yet he ſhall not bee puniſhed by fine and ranſome, but onelyonly be amerced.
Weſhm̄ 1. cap. 20. Treſpaſſors in Parkes and ponds attainted at the ſuite of the partie, beſides making large amends according to the Treſpaſſe and fine, at the Kings pleaſure, ſhall hauehave three yeares impriſonment, and find good ſuretie not to commit the like treſpaſſe. And if he cannot find ſuretie, he ſhall abiure the Realme. Being a fugitiue, and hauing no land nor tenement, whereby to be iuſtified, he ſhall be proclaimed from Countie to Countie, and if hee come not therevpon outlawed, if none do ſue within a yeare and a day, the King ſhal hauehave the ſuite.
5. Ric. 2. cap. 7. None ſhall make entrie into lands or Tenements, but where entrie is giuen by Law. And in ſuch caſe not with ſtrong hand nor multitude of people but in peaceable manner.
He that is conuict of the contrarie ſhall be impriſoned, and thereof ranſomed at the Kings will.
15. Ric. 2. cap. 2. At all times that ſuch forcible entries bee made, and complaint thereof commeth to any Iuſtice of peace, he ſhall take ſufficient power of the Countie, and go to the place, and if hee find any that hold ſuch place forciblie after ſuch entrie made, they ſhall be taken and put into the next gaole, there to abide, conuict by the Record of the ſame Iuſtice, till they hauehave made fine and ranſome to the king.
8 H 6 cap 9 The like for them that make ſuch forcible entrie into lands or other poſſeſſions, or them hold forciblie.
And whether the parties bee preſent or voided before the Iuſtices comming, yet he ſhall enquire of the matter by the people of the ſame countie in ſome conuenient place, and ſhall cauſe the Tenements ſo entred or holden to be reſeiſed, and reſtore the partie (ſo put out) into full poſſeſſion.
The partie put out or diſſeiſed in this manner, ſhall recouer treble damages againſt the diſſeiſor, or any feoffee comming in by fraud.
31. Eliz. cap. 1…. No reſtitution vponupon an enditement of forcible entrie, or holding with force, ſhall be good, where the partie hath beene in quiet poſſeſſion three whole yeares next before the enditement, and his eſtate not ended.
Merton cap. 6. A lay man rauiſhing, or marrying a Ward within 14. yeares of age ſhall be impriſoned, beſides loſſe of the value of the marriage.
Weſtm. 2. ca. 35. One that hath no right, taking away the Ward, ſhall be impriſoned two yeares, rhough he reſtore the child not married, or ſatisfie for his marriage. Not reſtoring him vnmarried, or not be able to ſatisfie for his marriage, (in caſe hee hauehave married him) he ſhall abiure the Realme, or hauehave perpetuall impriſonment. The forme of the writ both when the heire is in the ſame Countie or carried into another, is there ſet downe.
If the defendant there come not vponupon the diſtreſſe, he ſhall be outlawed.
The plea ſhall proceed though the heire dye. If the Plaintife die before the plea determined, &c. a reſommons ſhal be againſt his executours or heires (if the executours hauehave no aſſets) to ſatisfie the value of the marriage.
Speciall actions of Treſpas are theſe F. N B. 100.that follow.
De parco fracto for taking a diſtreſſe of beaſts and other things diſtreined for damage feſant, or for rent & ſeruices behind, not of the pownd, whether common pownd or other place that is a lawfull pownd, and whether hee that ſo brake the pownd bee proprietor of the beaſts, or no. And this lyeth for him that diſtreined, not for him whoſe the cloſe was, where one diſtreineth and putteth the beaſts by licence into his friends Cloſe, for it is not the pownd of the owner of the ſoile, but of him that did diſtreine, and the other ſhall hauehave an action of Treſpaſſe, Quare clauſum fregit.
Reſcous for taking ſuch a diſtreſſe away F. N. B 101. c. F. N. B. 102. f.before it be impounded. And here the partie muſt needs hauehave poſſeſſion of the beaſts, or things ſo recuſſed; for if he be diſturbed before he do attach or diſtreine them, a writ of reſcous lyeth not, but an action vponupon the caſe.
Eiectione firme when (a)F. N. B. 220. h.leſſee for yeares of land is ouſted, be (b)F. N. B. 220 f.it by the leſſor or a ſtranger, where the terme it ſelfe ſhall bee recouered if it be not paſt, as in a Quare eiecit infra terminum before.
CHAP. 17.
Of Appeales that touch life.
THeſe are the Common pleas, an appeale that concerneth life is the parties (a)Lit 116.priuate action, proſecuting alſo (b)8. El. Pl. 476.for the crowne in reſpect of a felonie, be it a (a)33 H. 8. Dy. 50petie Treaſon, or other felonie whatſoeuer. But for (e)33. H. 8. …. Stamf. 50.high Treaſon no appeale lyeth.
Appeales of the death of a man are giuen to the heire of the partie ſlaine, for the husband ſhall not hauehave an appeale of the death of his wife, but her ſonne. So the puiſne 7 E. 4. 15.brother of the whole bloud ſhall hauehave the appeale, and not the elder brother of halfe bloud. But the elder of the whole bloud ſhall.
Statutes.
Gloceſt cap. 9. An appeale of the death of a man muſt be brought within the year.
Magū chart. cap 33. A woman ſhall hauehave none but onelyonly of the death of her husband.
2. E. 6. cap. 24. Enditement or appeale good in the Countie where he dies, though the poyſoning or ſtroke were in another.
3. H. 7. cap. 1. One acquitted vponupon an enditement of murder, or manſlaughter, or as acceſſarie ſhall go at large till the yeare and day be paſſed, within which time no appeale may be brought (if no Clergie be had before) and all aduantages therein ſaued, as if the acquitall had not beene.
So againſt the acceſſories, though the principall were attainted at ſuch ſuit of the King.
CHAP. 18.
Of writs of right Pattent.
THus far of originall writs, Commiſſionall Old N B. 12. A writ of right patēt. F N. B 85. of Treſpaſſe. F N. B. 2 f. of a Writ of right patēt. F N. B. 86. of Treſpaſſe vicontiel.are thoſe which are not returnable but determinable before the parties to whom they are directed. And are but in effect commiſſionarie, or meere commiſſions: of the firſt ſort are thoſe that giuegive authoritie to a Court baron to hold plea where the ſutors are the Iudges, not the ſherife or ſteward. Theſe are a writ of right patent or a Iuſticies. In both which the ſome courſe is 6 E. 4 3. …5 H. 6. 5.holden, as in thoſe that went before, viz. pledges as before, count as in them, and the ſame both proceſſe that is in the writs originall of that nature. As in a writ of right patent, a praecipe in the nature of a grand cape and petit cape. Triall by battaile or grand aſſiſe, &c. in Iuſtices or viecontiell, writs of debt, accompt, &c. Somons, of treſpaſſe, &c attachment, but not a capias in any caſe, for that lyeth onelyonly in a Court of record. Alſo many actions of one nature may be ioyned in one Iuſticies with ſeuerall praecipes. So in plaints, bils, &c.
A writ of right patent is a writ for the (a)F. N. B. 1. b.meere right of Tenements holden of a common perſon, as land, (b)F. N. B. 30.auowſon, or rent (c)14 E. 3 dr. 31.ſeruice: but not (d)ibid.rent charge, rent ſecke, or a (e)F. N. B. 1. b.Common, to be brought in the Lords Court of that mannor. But (g)F. N. B. 3 c. & 8. a, b.if hee hold no Court, or otherwiſe (f) Old N. B. 1.(h)F. N. B. 2. f.yeeld his Court to the King for that time, at the prayer either of the Tenant or demaundant, then it may be in the Kings Court with this clauſe, Quia B. capitalis dominus nobis inde remiſit curiam.
And this muſt ſhew by what ſeruice the F. N. B. 1. i. F. N. B. 4.land is holden. The writ remaineth alwayes with the party himſelfe So doth no (b) Old N. B. 10. F. N. B. 9. b. Old N. B. 10. Ibid. 8 El. F. N. B. 9 b. It lyeth alſo where the Anceſtor died ſeiſed. F. N. B. 9. b. Old N B. 10.other writ originall. If one priuie in bloud not paſt the third degree, enter after the death of the aunceſtor that died in demeſne not ſeiſed As where a man letteth for life, and dyeth in the life of the Leſſee, hauing many coheires, and after that Leſſee for life dyeth, and one of the Coperceners entreth into al, or where the anceſtor is diſſeiſed and dieth, and one copercener entreth into all, there ſuch a writ of right patent, F. N. B 9. g.for the other coparcenar, or for the elder brother, if the yonger enter into all, is called a writ of right De rationabili parte terrae. And therein the grand aſſiſe nor battaile Old N B. 10. F. N. B. 9. g. F. N. B. 9. n F. N B. 197. …. d. 7. H. 6 8.ſhall not bee ioyned for the priuitie of the bloud: nor view nor voucher lyeth, neither is non tenure any plea, for it is to trie the priuitie of bloud, as a Nuper obijt that went before.F. N. B. 6.
A woman that hath receiued part of her dower ſhall hauehave a writ of right of dowrie patent for the remnant, whereof ſhe is to bee endowed, wherein the ſame things are to be obſerued that were in … writ of dower, vnde nihil habet before.