Law, Book 4 · Chapter 19 – Chapter 23
CHAP. 19.
Of Iuſticies.
A Iuſticies is a writ that giueth the Countie court power to hold plea. And therefore is called a Vicontiel writ, of this ſort are.
1 An aſſiſe of petie nuſaunce is where a mill, or ſuch like, is leuied to ones F. N. B. 184 b.nuſaunce.
All of them are comprehended in theſe verſes; … rica ca … gultum ges lendi… Fab, fur, porta domus, vir, gur, …, murus ouile: … Et pons; traduntur haec vicecomitibus.
2. For admeaſurement of things, as, F. N. B. 148.Admeaſurement of dower by the heire, when his gardein or himſelfe endowed the wife in his nonage of more than ſhe ought. ibid.But by this writ ſhe ſhal hauehave no new land aſſigned to her in dower. But onelyonly there ſhall be taken from her ſo much of the land as amounteth aboue the third part of the land, whereof ſhe ought to be endowed.
Admeaſurement of paſture by a commoner F. N B. 125. b & dwhom another commoner wrongeth by putting in more beaſts into the Common then hee ſhould, whether the Common be appendant or appurtenant, ſo it be to a certaine number, wherein all the Commoners as well thoſe that hauehave not ſurcharged, as thoſe that hauehave, and alſo the Plaintife himſelfe ſhall be admeaſured But it lyeth not for the Lord againſt his Tenants ſurcharging, for he may diſtreine the ſurpluſage for damage feſant. And as ſome ſay, may hauehave an aſſiſe, for it is a diſturbance of the profit of his ſoile. Nor for the Tenant againſt his Lord ſurcharging, but he ſhall hauehave an aſſiſe of common.
Statutes.
Weſtm. 2. cap. 7. A gardein may hauehave a writ of admeaſurement of dower, and the heire alſo at full age, if the gardein follow it faintly.
In Writs of admeaſurement both of dower and paſture after the great diſtreſſe, Proclamation ſhall be made two Countie dayes, whereupon if the partie come, the plea ſhall proceed: if not, admeaſurement ſhall be made in his default.
Weſtm̄ 2. cap. 8. When the ſame partie after admeaſurement another time ſurchargeth, a writ to enquire if that ſecond ſurcharge ſhall go out either iudiciall, if the former admeaſurement were before the Iuſtices, or otherwiſe originall out of the Chancerie. And the beaſts ſurcharging the paſture, or their value, ſhall be anſwered to the King.
3 A Natiuo habendo for the Lord that F. N. B. 77. a.hath an inheritance in any villeine, but not an eſtate for life or yeares, for this writ is in F. N. B. 77. b.his nature a writ of right to recouer the inheritance of his villeine When his villeine departeth away from him. And here if the defendant plead that he is frank, the Sherife F. N B. 77. a.cannot proceed.
4 Rationabilibus diuiſis for that Lord whoſe land or waſte hath by little and little Old N B. 73.beene encroched vponupon within time of memorie vntill now, by a Lord whoſe ſeigniorie adioyneth in another ville, againſt the Lord ſo encroching. But if the encrochment Ibid. 73, & 74.bee at once, whether now or before time, there an aſſiſe of nouell diſſeiſin lyeth, and not this writ.
5 A homine replegiando, for one impriſoned, F. N. B. 66 ….or in priſon detained where he ſhould not. As being baileable, or claimed as (a)F. N. B 66 f.a villeine, or in (b)F. N. B. 67.ward, where in deed he is frank out of ward.
6 A repleuin for goods or chattels diſtreined, F. N. B. …8. d 4 H. 6. 30.which according to the nature of the plea miniſtred by the parties, groweth to be either a reall or perſonell plea, as vponupon property claimed then is it perſonell, if the defendant auow the taking, for ſeruices or rent behind, &c. then it becommeth reall, &c. and as ſtrong as a praecipe quod reddat, inaſmuch as he is to hauehave a returne. And therefore he ſhall in that caſe hauehave aide before any plea pleaded, as in a praecipe quod reddat. And this may be both by Writ and F. N B. 70. …, b.plaint in any Court baron, as well as in the Countie Court. And beeing by plaint, F. N. B. 70. b.though in the Countie Court, it ſhall not proceed if any thing touching the freehold come in queſtion, as if the defendant auowing for damage feſaunt, the Plaintife iuſtifieth by reaſon of Common of paſture.
VponUpon the pluries not ſerued by the Sherifr, his power is determined, and the 2 H. 7. 6.parties ſhall plead in Bank.
Statutes.
Marleb. cap. 21. The ſherife may repleuin beaſts not onelyonly without but within a libertie alſo, if the baylife of the libertie will not.
Weſtm 2. cap. 2. The ſherife or baylife ſhall take pledges of the plaintife not only de proſequēdo before they make deliuerance of the beaſts, but of returning of the beaſts if a returne be adiudged, hee that taketh pledge otherwiſe ſhall anſwer the price of the beaſts. VponUpon a returne awarded to the defendant, the writ De returno habendo ſhal hauehave this clauſe, (that the ſherife ſhall not deliuer them without writ, wherein mention ſhall be made of the iudgement.) And therupon the plaintife (if he will) may hauehave a iudicial writ to the ſherife to deliuer him the beaſts.
VponUpon a returne awarded, after which if a returne another time be awarded, there ſhal be no more repleuins. And if vponupon his default the ſecond time, or otherwiſe the defendant be adiudged to hauehave a new return, the diſtreſſe ſhall remaine yereplegiable.
1. & 2. Ph. & Ma. cap. 12. Euerie Sherife of a Shire (being no Citie) ſhall at his firſt 4. Deputies to make Repleuins.Countie day, or within two moneths after receit of his pattent, proclaime in the Shire towne foure deputies at the leaſt, dwelling not paſt twelue mile one from another, which in his name ſhall make repleuins as the ſherife might do himſelfe.
7 Many of the actions that went before, both for Reall things to be done as, (a) F. N. B. 151. b. Ibid. 123. a. Ibid. 123. f. Ibid 135. …. Ibid 148. b. Ibid. 152. b. Ibid 119. g. Ibid. 138. b. Ibid. 117. b. Ibid. 145. c. Ibid. 85 f 86 g. In Ibid 86. For they are as a… Commiſsiō in effect. And the Sherife may determine them by Enqueſt, according to the courſe of the cō mon Law.Conſuetudinibus & ſeruitijs: ſecta ad molendinum. Quod permittat: meſne: Dower, vnde nibil habet: and alſo perſonall actions, a… Annuitie, debt, detinue, accompt, coue…, treſpaſſe, to what ſumme ſoeuer, may as well be brought in the Countie by Iuſticies, as to bee returnable in the Common place.
CHAP. 20.
Of meere commiſsions.
MEere commiſſions are theſe that follow: Being all of them to bee F. N. B. 110. b.directed to choice perſons, ſuch as it ſhall pleaſe the King.
Oyer and terminer to heare … determine vponupon ſome heynous treſpaſſe committed, as rebellious aſſemblies, inſurrections, Ibid.and ſuch like. And theſe are called Iuſtices of oyer and terminer.
Statutes.
2. E. 3 cap. 3. It ſhall be granted onelyonly to Iuſtices of the one Bench or other, or to Iuſtices errants.
In theſe and ſuch like commiſſions lye properly a writ of Aſſociation, and Si non omnes.
Aſſociation is a writ for other to be aſſociate into their company, as fellow Iuſtices together with them, and may bee directed to the Iuſtices themſelues to admit them, or to the parties that ſhall be ſo aſſociate F. N. B. 111. b.to ſignifie their aſſociation. That (a)F. N. B. 111. d F. N B. 185. …. in an aſſiſe.to the partie is patent. The (b)F. N. B. 111 d Fit. Nat. B. 111. c.other to the Iuſtices to admit him is alwayes cloſe.
Si non omnes is a writ for the reſt to proceed, although the other come not. To bee directed as well to the partie to be aſſociate as to the other Iuſtices. Patent (c)F. N B. 186. ab.to the partie, cloſe (d)F. N. Br. 221to the Iuſtices.
Ad quod damnum to enquire what hurt it may be to the King, or countrey, or any other for the King to grant ſuch or ſuch a thing, as a licence to alien in mortmaine, or to alien lands holden of the King in chiefe: or to grant liberties to any Citie or ſuch like.
Perambulacione facienda to enquire of the Old Nat. Br. 74.bounds of two Seigniories or Townes, where an encrochment by little and little is ſuppoſed to hauehave beene made. And this muſt bee by the mutuall aſſent of both the Lords. But if ſuch encrochment were at once, whether now or heretofore an aſſiſe of nouell diſſeiſin lyeth, and not this writ.
CHAP. 21.
Of Plaints.
SO farre of Writs, it followeth to ſpeake of Plaints and Bils. Both being in ſuch Courts as hold plea without originall writ.
A plaint is in matters that concerne common pleas.
A plaint of Treſpaſſe brought in a court baron, whether mannor, hundred, or countie 22. Aſſ pl. 64. Br. Iur 98. 14 H. 8. 15. Ibid.Court, ſhall not proceed if the freehold come in queſtion. But a ſuit by writ in the Countie Court may. Therefore in ſuch caſe vponupon a plaint in the Countie Court, the partie hath no remedie, but a writ of Treſpaſſe vicontiell, and thereby the Sherife may determine the iſſue, though the freehold come in debate. But that is no remedie in other Court Barons.
CHAP. 22.
Of Bils.
A Bill is in pleas of the Crowne. Stamf. 64.As an appeale of felonie, mayme, tape, &c. may be by Bill before any (a) Stamf. 55. …one Coroner of the Shire, as well (b) Stamf. 64.as by writ originall, finding firſt ſureties to the Sherife.
One whoſe attendance is neceſſarie in 6 E. 4. 3.any Court, as the officers and Atturnies there, ſhall ſue and bee ſued in forme of plaint, without writ originall, which is called a Bill priuiledge. But albeit the Cooke or Butler of a Iudge, or other officer of a Court ſhall hauehave their priuiledge if they be ſuedels where, yet a Bill lyeth not againſt them: But againſt the officers and Atturnies it doth, for they are members of the Court, and their attendance neceſſarie. And they ſhall be foreiudged of their office, if being demanded to doe them they make default. But an Atturny in the Kings ſhall not be ſued by Bill, for no Atturny is there of record, nor his preſence neceſſary. Otherwiſe it is in the Common place.
CHAP. 23.
Of a Quo warranto.
Prerogatiue.
THe King hath a ſpeciall me… 10 H. 7. 14.ſuite for trying of the right … fr… chiſe vſurped vponupon him, called … Quo warranto: and i… to be brought before the Iuſtices of Eyer. Therfore here the allowance of a franchiſe before them, bindeth the King Otherwiſe … vponupon a ſuite in the common place.
Statutes.
18. E 1. A Statute of, Quo Warranto. Quo warranto in Iustices circuits.Pleas of quo warranto from hencefoorth ſhall be pleaded and determined in the circuits of the Iuſtices.
18 E. 2. Stat. of Quo warranto. A publike proclamari fac', ſhall bee awarded to thoſe that claim liberties to know by what warrant they claime them, wherein they ſhall hauehave a warning of fortie dayes. The partie that claimeth liberties beeing before the King, it ſhall not bee in default before any Iuſtices of their circuits. And beeing impleaded before one or two Iuſtices, the ſame Iuſtice before whom he is impleaded, ſhall ſaue him harmeleſſe before the other. If he come not at the day, the liberties ſhal be taken in the Kings hands in name of a diſtreſſe, and when they, appeare, be repleuied vponupon their demand. In which repleuins they ſhall anſwer immediatly.
If their anceſtors died ſeiſed, then the K. ſhall hauehave a ſommons for them to appeare before the King, or his Iuſtices of aſſiſe: at which day if they come not, nor be aſſoygned before the King, and the King do tarrie longer in the ſame Shire, ſuch order ſhall be taken as in the circuits of the Iuſtices. And if the King depart from the ſame Shire, they ſhall bee adiourned vntounto ſhort dayes, and hauehave reaſonable delayes according to the diſcretion of the Iuſtices, a… it is vſed in perſonall actions.