Law, Book 4 · Chapter 31
CHAP. 31.
Of Oyer of the writ or bond, &c. view and prayer, voucher, garniſhment, Enterpleader to the Writ and Sainctuarie.
FOrreine aduantages are delayes without exception to any thing. … in all actions, oyer of the writ, &c. In reall actions, view, aide, prayer, and voucher.
View is in reall actions of the thing demanded, or of the land whence it commeth, Stat. Weſt. 2. c. 48. from henceforth view ſhall no… be granted, but where it … neceſſarie, &c. ſheweth that it did lye in thoſe caſes at the common Law. And this view muſt be demanded before any plea in bar, &. may be after pleadieg to the writ: for though one plead a plea that goeth to the action (as that the plaintife in a writ of dower is an alien) yet if he conclude to the writ, he may hauehave view after 3. H. 6. 55.when it is ſo neceſſarie as without view the defendant cannot well anſwer.
Statutes.
Weſtm̄. 2. cap. 48. From henceforth view ſhall not be granted but in caſe where the view is neceſſarie, as if one loſe land by default, and he that loſeth, moueth a writ to demand the ſame land. And in caſe where one by an exception dilatorie, abateth a writ after the view, as by non tenure or miſnaming of the Towne, or ſuch like, if hee purchaſe another writ in this caſe, and i… the caſe before mentioned, from henceforth the view ſhal not be granted if he had view in the firſt writs. In a writ of dower where the demand is of the land that the husband alienated to the tenant or his Aunceſtours where the tenant ought not to be ignorant what land the husband did alien vntounto him, or his anceſtours; though the husband died not ſeiſed, yet from henceforth view ſhall not be granted. In a Writ of Entrie alſo that is abated, becauſe the demandant miſnamed the Entrie; if he purchaſe another Writ of Entrie, if the tenant had view in the firſt writ, he ſhall not hauehave it in the ſecond. In all writs alſo where lands be demanded by reaſon of a Leaſe made by the demandant or his anceſtor, as that which he leaſed to him beeing within age, not whole of mind, being in priſon, and ſuch like, view ſhall not bee granted hereafter: but if the demiſe was made to his anceſtor, the view ſhal not lie as it hath don before.
Stat. De viſu terre & eſſoyne de ſeruiti… Domini Regis: View ſhall not be granted in a Writ of Ward, in a Writ of Cuſtoms & Seruices, in a Writ of Aduowſon of a Church (but no… in caſe where there be no more Churches than one in a towne, and all of one Saint) in a Writ of Dower, and in a Writ of Nuper obijt.
Ayd Prayer is for Tenant for life, to 31 E. 3. Ioind in aid 10. 33 H. 6. 29.requeſt him that hath the Inheritance, to helpe him plead. And therefore here the tenant himſelfe remaineth alwaies party, & is neuer out of Court: and this Aid Prayer is for the feebleneſſe of his eſtate.
So muſt an Incumbent, the Patr… Ordinarie. Elſe no recouerie againſt h… bindeth the ſucceſſor or them. And th… is in reſpect of their intereſt to the Church; the Patron to preſent, and to hauehave an I… cauit of the tythes: the Ordinarie to adm… & to preſent by Laps. But vponupon Aid prayer it doth, though they make default, & confeſſe the Action.
Statutes.
Weſtm. 2. Cap. 3. He that is in the … uerſion ſhall be receiued in default of the Tenant for life. If iudgement be giuen by reddition, or default, hee in the reuerſion ſhall hauehave a Writ of Entrie after the death of the Termor: ſo ſhall the heire where the Tenant was Tenant in Taile.
20. E. 1. De Defenſionis Iuris: he in the reuerſion deſiring to be receiued before iudgment, ſhall finde ſuretie (as the Court ſhal allow) to anſwer the value of the iſſues of the Tenants from the day of the receit, till iudgement, if it paſſe for the demandant.
13. R. 2. Cap. 17. The like receit ſhal be for him in the reuerſion vponupon the faint pleading of ſuch a Tenant, and hee ſhall plead in chiefe without delay. And the Iudges by diſcretion ſhall giuegive dayes of grace betweene the demandant and him that is receiued; without giuing the common day in plea of land, vnleſſe it be by the demandants aſſent. Suretie of the iſſue ſhal be found (as before 20. E. 1.) as wel where the receit is counterpleaded as where it is granted.
Gloceſt. cap. 11. Tenant for yeares ſhall be receiued before Iudgement rendred, to ſay that the action was by couin.
Weſtm̄. 2. cap. 3. Receit is giuen to the wife in her husband, if he loſe her land by default, and the tenaunt that recouered againſt her husband muſt maintaine his owne right.
Voucher is the calling of one that ſhould warrant in to anſwer the action. Therefore 31. E. 3. Ioynd. … ayd. 10. F. N. B. 1…4. … ▪vponupon the vouchees entring into warrantie the tenant is out of Court. And notwithſtanding a recouerie in a Warrantia chartae, yet if he bee afterwards impleaded in an action where voucher lyeth, he muſt vouch him againſt whom the recouerie was: elſe he ſhall hauehave no benefit of that recouerie.
Statutes.
Weſtm̄. 1. cap. 39. In mortdaunceſtor nuper obijt, intruſion, or other ſuch like writs in which land is demanded which ſhould defend, couert, remaine, or eſchete, after the death of any anceſtor or otherwiſe, if the tenant vouch, it is a good counterplea to ſay that the tenant or his anceſtor was the firſt that entred after the death of him of whoſe ſeiſin he demands, vnleſſe the vouchee bee readie, who if he vouch ouer, the demaundant ſhall hauehave his counterplea.
Alſo in a writ of Entrie in the degrees none ſhall vouch out of the line. Alſo in writs of right or of poſſeſſion (as before) that is a good counterplea, that the vouchee nor his anceſtor had neuer ſeiſin of the land or any thing in the ſeruices by the hand of the Tenant, or his anceſtors from the time of the ſeiſin whereof the defendant declares till the writ purchaſed, ſo that hee might a feoffement make vnleſſe the vouchee be preſent, who if he vouch ouer, the demaundant ſhall hauehave his Counterplea. But warrantie of charters lyes in theſe caſes.
20. E. 1. Stat. de vocat̄. ad warrant̄. This Counterplea of voucher that the vouchee nor his anceſtors had neuet any thing, ſo as he could a feoffement make with warranty ſhall be receiued, although the vouchee be readie to enter into warrantie.
14 E. 3. cap. 18. If the tenaunt voucha dead man, the demandant may auerre he is dead, or there is none ſuch.
Weſtm̄. 2 cap. 6. If the vouchee counterplead the warrantie, and it be found againſt him, he ſhall loſe the land. Where the vouchee F. N. B. 134. k. 22. H. 6. 22.loſing the Tenant ſhall recouer in value againſt him any hereditaments that he had at the time of the voucher. And therefore a voucher is in liew of an action where the originall proceſſe is Somons ad warrantizandum (or (a)45. E. 3. 23. 14. H. 6. 2. Br. Seq ſub, &c. 3.if one bee vouched within age a Somons ad habendum viſum firſt, and being awarded of full age, then a Somons ad warrantizandum, if he be awarded within (b) Old N. B. 1… Old N. B. ibid.age the parroll ſhall demurre) and a Grande Cape ad valentiam. If the ſommons ad warrantizandum or habendum viſum, alias, and pluries, be not ſerued, then a ſequatur ſub ſuo periculo is to goe forth. And if the tenant cannot get that ſerued, he loſeth his warrantie. Therefore it is ſub periculo of the tenant. And if vponupon vouching of an heire the 13. E. 3. Iudgement 117Sequatur ſub ſuo periculo be returned nihil in the land by deſcent, but that he was ſommoned in land that he had purchaſed, the tenant loſeth his warrantie, for the ſommons muſt be in lands deſcended. But if the Sequatur ſub ſuo periculo, or the Cape ad valentiam 3. H. 7. 13. Br. rec…. en value 40.bee returned ſerued, there the Tenant ſhall recouer in value.
But in exchanges the hereditaments are lyable from the verie time of the Exchange.
In partition among coperceners, from the death of their anceſtor. So as the wiues dower whom he taketh before any voucher by reaſon of ſuch an (a)Park. 61. ….exchange, or whom a (b)Park. ibid.coparcener in gauell kind marrieth at any time, ſhall be defeated vponupon a recouerie in value or pro rata, for ſo is the recouerie in value called in the caſe of coparceners.
Prerogatiue.
The King ſhall not bee vouched, but prayed in aide of which in that caſe hath the force of a voucher. As if the King by 15. H. 7. 10.his letters pattents giuegive lands to one by this word (Dedi) the patentee ſhall hauehave aide of him, becauſe by the ſame word he might 9 H. 6. 4.vouch a common perſon. And when one prayeth in aide of the King in liew of a voucher, the ſpeciall cauſe muſt be entred, elſe hee ſhall neuer hauehave in value by petition.
So of Coperceners.
And if two parceners make partition, one alienateth part of her purpartie, the other is 1. E. 3 4.impleaded and prayeth in aide of her coparcener, and they loſe. In this caſe ſhe ſhal recouer according to the rate of the moitie which ſhe loſt, whether the other alienated before aid prayer, or after.
In an aſſiſe of nouell diſſeiſin and nuſance, voucher lyeth not, vnleſſe the vouchee F. N. B. 178. c.be preſent in Court, and will by and by enter into warrantie.
He that is impleaded in any action wherin he may vouch and doth not, ſhall neuer hauehave the benefit of a Warrantia chartae.
Aduantages in certaine perſonell actions are Garniſhment and Enterpleader. Garniſhment is vponupon a writ of detinue, when beeing alledged by the defendant to hauehave beene vponupon a bailement by the plaintife, and another or for another vponupon condition. 14 E. 4. 2.As that if I. S. doe ſuch a thing the goods ſhall be deliuered to him (for though the plaintife ſole deliuered the goods, and I. S. were a ſtranger, yet I. S. is to hauehave aduantage of the condition, and may hauehave a writ of detinue) if not, then redeliuered to the plaintife, that other ſhall be brought in to ſhew whether by reaſon of that bailement which the defendant ſo alledgeth both for the (a)21. H. 6 35.place, (b)40. E. 3. 11.condition, (c)20. E. 4. 13.and matter of the bailement, viz. who bailed it, &c. from which the Garniſhee cannot varie (d) 40. E. 3. 11.howſoeuer it agree or diſagree with the (e) 4. E. 3. ibid.plaintifes declaration, himſelfe or the plaintife ought to hauehave them, for garniſhment is but to know whether the condition, &c. alledged by the defendant were performed or not. And if they were deliuered vponupon other condition then the defendant alledgeth, the garniſhee is at no miſchiefe but the defendant: for the garniſhee may recouer them by a writ of detinue, and the defendant by his falſe plea maketh himſelfe chargeable both to the plaintife and to the garniſhee. But if the defendant affirme not any certaine bailement for place, condition, 21. H. 6. 35.matter, &c. as if the plaintife declare of a bailement vponupon certaine conditions, &c. and ſhew which, and that he hath performed them, and the defendant pray garniſhment generally: there the garniſhee may varie from the bailement alledged by the Plaintife, for the defendant hath not affirmed the ſame.
Enterpleder is when diuers bringing ſeuerall writs of (a)33. H. 6. 25. 8. H. 6. 30.detinue, ward (b)3. H. 6. 44.or Quare (c)19. H. 6. 68.impedit againſt the ſame perſon in the ſame County, and for the ſame thing, though (d)8. H. 6. 30.they varie in time and place of deliuerie (for the place is not materiall being all in one Countie) ſo as they varie not (e) 33. H. 6. 25.in the ſubſtance of their declaration, as for to declare of a cheſt ſealed, without alledging any deed in certaine: and the others to alledge a deed in certaine. They (f)8. H. 6. ibid.all ſhall enterplead together, as much to ſay, the reſt ſhall anſwer him that brought the firſt writ, and therefore ſhall hauehave the ſame 33. H. 6. ibid. 8. H. 6. ibid.day giuen them, if the writs be returnable at ſeuerall dayes. And the reaſon of enterpleding in detinue is, becauſe otherwiſe if one recouer againſt the defendant, yet the others action is not abated, but continueth ſtill. Otherwiſe it is in a reall action as in a formedon praecipe quod reddat.
Prerogatiue.
The King may appoint any place hee thinketh good to be a ſafegard for all offendors flying thither, that they ſhall not bee moleſted or compelled to anſwer, whether one flie thither for (a)1. H. 7. 25.treaſon, (f)Stamf. 111. The Abbot of battaile had ſo.murther, theft, or other crime, for which he ſhould loſe life or member. And therefore this taking effect by the Kings grant onelyonly (for touching the Kings prerogatiue ſo nigh it cannot (d)1. H. 7. 26.be by preſcription) and being an immunitie to one that offendeth the King and his Crowne, is a (e)1. H. 7. 25.temporall matter pertaining to the temporall coertion & Iuriſdiction, and need no conſecration. But yet when it is conſecrate by the Popes vnholy Ceremonies, it obteineth the name of Sancturary.
Statutes.
Taking of ſanctuary away.
26. H 8. cap. 17. In high Treaſon.
2…. H. 8. cap. 7. In Petie Treaſon.
27. H. 8. cap. 4. and 28. H. 8. cap. 15. In treaſons, felonies, robberies, and confederaces, in or vponupon the Sea, or other hauen, riuer, creeke, or place where the Admirall hath or pretendeth iuriſdiction.
32. H. 8. cap. 4. In wilfull murder, rape, robberie, in or neere the high way, or in any houſe, putting any perſon within in feare of his life, felonies, burning of houſes or barnes with corne, robberies of Churches, Chappels, or hallowed places, and all procurors, and abbettors, and all offences where ſanctuarie lyeth not by the Law, or is taken away by any former Statute.
32. H. 8. cap. 12. In Treaſon, Miſpriſion of treaſon, Manſlaughter within any of the places or houſes of the King, or his heires, or where the King in perſon is abiding. So in ſtealing or in feloniouſly carrying away any plate, iewell or other goods of the king or his ſucceſſors, aboue xij. d. value.
32. H. 8 cap. 1. made perpetuall. 32. H. 8. cap. 3. 1. E. 6. cap. 12. In murder or poyſoning of malice prepenced, breaking of any houſe by day or night, any perſon being in it and put in feare thereby, robbing in or nigh the high way, felonious ſtealing of horſes, geldings or Mares, or ſtealing goods out of any Church or Chappell. But in all other caſes of felonie it ſhall be granted.
2. E. 6. cap. 33. In felonious ſtealing of ones Horſe, Gelding, or Mare.
1. Mar. cap. 6. In counterfeiting coyne that is not the coyne of the Realme, or currant in the Realme, the Queenes ſigne, manuell priuie ſignet, or priuie ſeale: and all procuring and abetting.
1. and 2. Ph. and Mar. cap. 4. From theſe that call themſelues Aegyptians.
27. H 8. cap. 19. All in ſanctuarie for murder or felonie out of the houſe, weare a badge in length and breadth ten inches: they ſhall weare no weapon but their meate kniues, and that at meale onelyonly. Both theſe vponupon paine of loſſe of the priuiledge.
They ſhall not be out of their lodging before Sunne riſing, nor after Sunne ſet vponupon paine of impriſonment two dayes in that ſanctuarie for the firſt time he is ſo taken, the ſecond time ſixe dayes impriſonment, the third time loſſe of his priuiledge, vponupon ſubſtantiall and indifferent proofes before the Lord Chancellor. And it is felonie for any ſanctuarie perſon that ſhall of prepenced malice make reſcues, or reſiſt any officer in impriſoning the priuiledged perſons as before. Contracts vnderunder xl. s. treſpaſſe and couenant betweene the priuiledged perſons, and other inhabitants in the ſanctuarie, ſhall be determined before the Gouernour.
32. H. 8. cap. 12. All ſanctuaries adnulled other then Churches and Churchyards, and certaine places named in that Act, and in 33. H. 8. cap. 15. which are appointed places of Tuition, for terme of life to the offendors in capitall offences. The priuiledged perſons ſhall euerie day bee called by name, and making default three ſeuerall dayes with lawfull cauſe, forfeit the priuiledge: committing any offence puniſhable by death is forfeiture alſo.