Law, Book 4 · Chapter 45
CHAP. 45.
Of Iudgements.
THus farre of Suit. Iudgement 10. El. Dy. 26. 8. The writ of falſe Iudgement ſhall be Recordare fac. loquelā quae fuit in eadem curta and not quae est, for by the iudgement loquela is determined. 10. E. 3. Stam. praer. 78.is the Courts finall determination of that ſuit.
VponUpon Iudgement againſt the King in a petition, hee is preſently out of poſſeſſion. And therfore eueryevery Iudgement is in it ſelfe a moueas manu, or an ouſter lemaine In a writ of right the Iudgement after iſſue ioyned is finall on either ſide, not onelyonly when it paſſeth by verdict, or vanquiſhing of the others Champion, but where the demandant is (c)F. N. B. 6. 3. Eli Dy. 301.non ſuit, or the (d)F. N B. 6.Tenant maketh default, or the (e)26. H. 8. 8. F. N. B. 31. d.vouchee after ſuch an iſſue ioyned by him, departeth in deſpite of the Court, &c.
Prerogatiue.
Againſt the King Iudgement is not finall, but is alwayes with a Saluo iure Regis.
Recoueries in a writ of right bind all 5. E. 3. 50.ſtrangers not claiming within the yeare. As being ſuffered by a diſſeiſor, it bindeth the diſſeiſee by his non clayme. Tenant for life ſuffering a wrongfull recouerie, it ſhall preiudice his right that hath the inheritance, though he be prayed in aid and make 34. H. 6. 2. 4. H. 7. 3.default. for no aide prayer is there neceſſarie, in as much as the other being tenant of the freehold, a recouerie is good againſt him But that after the death of Tenant 24 H. 8. Br. fau. reco. 41.for life, hee may falſifie it by action of Ad terminum qui preterijt, or writ of right which we call falſifying of recoueries. But he cannot enter, (a)26. H. 8. 2.neither can leſſee for yeares at the Common Law falſifie for hauing but a Chattell deriued out of a freehold, there is no reaſon hee ſhould falſifie a recouerie which draweth the fee ſimple out of the leſſor. Alſo the preſent eſtate vponupon which the leaſe depends being deſtroyed, the leaſe muſt needs be extinct.
Statutes.
14. Eliz. cap. 8. Euerie fraudulent recouerie againſt any Tenant for life, or whereupon any tenant for life, or hee that hath right to eſtate for life is vouched, ſhall bee void againſt him in the reuerſion, or in the remainder, vnleſſe it be by his owne aſſent appearing by record.
21. H. 8. cap 15. Termors for yeares or in by execution of Statute ſtaple, Statute Marchant, or Elegit, may falſifie recoueries onelyonly for their owne Terme in ſuch ſort as Tenants of the freehold, neither partie nor prinie to the recouerie might at the Common Law.
In a Writ of dower by gardein in ſoccage Lit. 9.againſt gardein by Knight ſeruice, ſhe ſhall at his prayer bee adiudged to endow her ſelfe wholly of the land in ſoccage. And this is called Dower de la plus beale. But ſuch dower ſhall not bee where the woman is Park. 88.gardein en fait by knight ſeruice, nor where all the husbands lands were holden in ſoccage, and ſhee brings her writ of dower againſt the heire: nor where ſhe brings it againſt her husbands feoffee with warranty, for he may vouch the heire.
A debt acknowledged in Court of Record either to the King or to a Common, is in the nature of a Iudgement, and called a Recogniſance. And therefore ſuch a matter acknowledged by an infant, cannot bee auoided but during his nonage onelyonly. As a (a)18. E. 4. 13.fine by writ of error, a (b)7. El. Dy. 232. 18. E, 3. 5.Recogniſance, Statute, or ſuch like, by an Audita quaerela: for it ſhall be tried by inſpection of the Court, whether hee were within age, or no.
In appeales of (c)41. E. 3. treſ. 199mayme, enditements or appeales of (d)40. E. 3. 42.felonie, the acceſſorie ſhal not be compelled to anſwer till attainder of (e)1. Mar. Pl. 99. 3. H. 7. 12. 4. E. 6. Br Cor. 185all the principals, by verdict, outlawrie, or though it be by taking him to his Clergie, or abiuration So as if the principall die (f)21. H. 7. 31.or hauehave his (g)3 H. 7. 12.pardon before, or if two men be endited, one as principall, the other (h) 12. E. 3. Cor. 378.as acceſſarie, and the principall bee afterwards attainted of another felonie and hanged: the acceſſarie ſhall be diſcharged And (i)3. Mar. Dy. 120if one of the principals bee not attainted, the Acceſſarie ſhall not recouer damages againſt the A bettor, for he is not legitimo modo acquietatus. But in caſe of high Treaſon all offendors are accounted principals, and there is no acceſſarie at all.
He that is or by poſſibilitie may be with in orders, for one being within orders (if Stam. 133.he ſhew them, or the ordenarie certifie ſo much) ſhall hauehave his Clergie, whether he can reade or no. Otherwiſe he muſt be able to reade a verſe, namely, a Deacon at the leaſt, may hauehave the benefit of his Clergie, ſaue him either from Iudgement when the Clergie is prayed before, or from execution if it be prayed after, if he be found culpable by verdict, or his owne (k)Stam. 138. d.confeſſion either before the Coroner, or the Iuſtices of any barre, felony, where life or member is to be loſt, be it vponupon an enditement or appeale, but (l)Stam. 124.not for killing a man by misfortune, or ſe defendendo, nor yet for petie Larceny, for in theſe caſes he is not to hauehave Iudgement of life or member. No more in caſe of high Treaſon, or petie Treaſon. And ſuch a (m)Stam. 130. ….Clarke might indeed by the antient Law hauehave had his Clergie before hee were endited But now he ſhall not hauehave it vponupon his arraignment, vnleſſe he plead to the fe…onie and be found guiltie: for otherwiſe he ſhould loſe his goods by an enqueſt of office, to which he could hauehave no challenge …s he may hauehave to this. But yet hee may waiue this benefit and pray his booke after …he enqueſt, and before their comming …acke. In which caſe notwithſtanding, the …erdict afterwards ſhall be taken And that …s in fauorem vitae: becauſe if the Iurie find …im not guiltie, he ſhall be charged. And his poſſibilitie (there beeing no other im…ediment) as if it be a woman, a blind, or a …aymed man, ſhal be tried by the Iudges. And therefore if the ordenarie challenge …im, where he readeth not as a Clarke, he …hall be fined and the partie hanged. Or if …ee refuſe him when hee doth reade as a Stam. 123. d. 9. E. 4. 28.Clarke, the ordenarie ſhal be fined, and the …artie diſcharged, for the Court are Iudges …f his reading. And the ordenarie is there onelyonly to challenge him for his Clergie, for the entrie is, Legit vt Clericus ideo tra…tat… 9. E 4. 28.ordinario, by his ableneſſe to reade a verk, though he cannot reade without ſpelling. But if he can reade but here a word & there a word, and no three words together, quert whether that be ſufficient.
Clergie is the deliuering of him to the ordenarie to be kept in priſon.
If it bee before Iudgement, in which caſe we call him a Clarke conuict, hee ſhall Stam. 138. 6.be tried there by a Iurie of Clarkes. A… therefore purging himſelfe ſhall goe … large. Therefore is a writ to command the Stam. 138.ordinarie to admit him to his purgation. Not purging himſelfe, but beeing found culpable by thoſe Clarkes, he ſhall be onelyonly degraded.
But vponupon an appeale of Robberie, or ſuch like, no purgation ſhall bee admitted. Stam. 139. b.The reaſon ſeemeth becauſe then the plaintife in the appeale ſhould recouer his goods without cauſe, when by the purgation it did appeare that the other was not guilty of the felonie.
A Clarke conuict ſhall not anſwer to any Stam. 108.offence committed before.
Prerogatiue.
A Clarke conuict forfeiteth his chattels: And ſhall neuer hauehave reſtitution, 5. E. 6. Br forſ. 113though he make purgation. Notice … be giuen to the King of the time before the Stam. 138.partie make purgation. If the Clergie be after Iudgement, in which caſe wee call Stam. 138. ….him a Clarke attaint, hee ſhall remaine in perpetuall priſon.
Statutes.
25. H. 8 cap. 3. Reuiued. 5. E. 6 cap. 10. One arraigned vponupon an enditement of pety Treaſon, wilfull burning of houſes, murder, robberie, or other felonie, according to the meaning of the ſame Statute, if he ſtand mute of malice, or froward of mind, or challenge peremptorily aboue xx. or will not directly anſwer, ſhall loſe his Clergie, in ſuch manner as hee ſhould if vponupon the arraignment he had beene found guiltie.
25. E. 3. pro clero, cap. 4. Conuict of pety Treaſon ſhall hauehave it.
18. Eliz. cap. 6. None in felonious Rape, Rauiſhment, nor Burglarie.
18. Eliz. cap. 6. None in carnall abuſing a woman within ten yeares of age.
25. H. 8. cap. 6. 5. Eliz. cap. 17. None in Buggerie.
5. E. 6. cap. 9. None for him that robbeth any perſon in any part of his dwelling houſe, booth, or Tent, in any Faire or Market, himſelfe, his wife, children, or ſeruants then beeing there, or within the precinct thereof, either ſleeping or awake.
4. & 5. Ph. & Ma. cap. 4. None for him that maliciouſly commandeth or hireth any to commit petie Treaſon, or wilful murder, or robberie, in any dwelling houſe, or in or neere any high way, or within the marches of England againſt Scotland; or wilfully to burne any dwelling houſe, or any part thereof, or any Barne hauing corne therein.
25. H 8. cap. 3. & 5. E. 6. cap. 10. He that doth a robberie or burglarie in one Countie, and is taken with the goods ſo robbed or ſtolne, in another Countie, ſhall loſe his Clergie there, as he ſhould doe where the robberie or burglarie was committed.
4. H. 7. cap. 13. 1. E. 6 cap 12. Grantable but once to one perſon, except he be within orders.
4. H. 7. cap. 13. He that asketh his Clergy the ſecond time ſhall at a day certaine bring his letters of order, or a certificate.
4 H. 7. cap. 13. He that hath his Clergie ſhall be marked in the hand, with an M. if he were conuict of murder, with a T. if he were conuict of other felonie.
1 E. 6. cap. 12. Lords of the Parliament in all caſes where Clergie lyeth at the common Law, or is reſtrained by Statute, ſhall vponupon his prayer bee adiudged as a Clarke conuict, though he cannot reade.
8. Eliz. ca. 4. & 18. Eliz. ca 7. After purgation he ſhall be put to anſwer to any ſuch offence (committed before his admiſſion to the Clergie) whereupon Clergie is not allowable, and whereof hee was not before endited and acquited, conuicted or attainted, or pardoned, and ſhall be demeaned in all things, as if he had neuer beene admitted to his Clergie.
18. Eliz. cap 7. He that is allowed Clergie ſhall not be deliuered to the ordenarie, but after burning in the hand ſhall be deliuered forthwith by the Iuſtices out of priſon: yet for further correction, they may detaine him in priſon, ſo that it be not a boue a yeare.
Outlawry is a Iudgement, which in caſe of criminall offences wee call an Attainder in it ſelfe. So as hee which is endited of treſpaſſe and outlawed ſhall pay a fine, he which is outlawed for felonie, forfeiteth his lands and goods: and this fine and forfeiture remaineth, though hee purchaſe a Charter of pardon afterwards. And there is a writ of Eſchete of land for felony, pro qua vt lagatus fuit.
So is abiucation an Attainder in it ſelf (and (a)Stam. 122. c.that the ſtrongeſt that can be being by his owne confeſſion) and a (b)4. Eli. Pl. 262.forfeiture of his lands. And there is a writ of Eſchete of land for felonie, pro qua abiuranit regnum. And therefore (c)3. E. 3. Cor. 33…he that is hanged vponupon Iudgement againſt him, and becommeth aliue againe, cannot abiure (but an abiuration in that caſe is in eſcape) for one cannot hauehave two Iudgements for one offence.
The offendor vponupon a preſentment in the Leet or ſherifes turne ſhall be amerced.2. H. 4. 24. 8. R 2. auowry 194
The defend ant in an appeale of felony, being acquited ſhall hauehave Iudgement alſo to recouer damages againſt the Plaintife. Stam. 167. c. Stam. ibid.And if the plaintife be not ſufficient, then Common Law and common reaſon will that hee recouer his damages againſt thoſe that procured or abetted the plaintife to purſue the appeale. But theſe damages againſt the procurers or abettors were to be recouered at the Common Law onelyonly, by writ originall, that is to ſay, by writ of conſpiracie, and not otherwiſe.
Statutes.
Weſtm̄ 2. cap. 12. One being acquited vponupon an appeale, or enditement of felonie, may hauehave the abettors enquired, and hauehave a Iudiciall writ for his damages againſt, if the appellant be not ſufficient.
8. H. 6. cap. 10. An action vponupon the caſe giuen for him that is duely acquit by verdict againſt eueryevery procurer of any Iudgement, or appeale of Treaſon, felony, or treſpaſſe. And like proceſſe ſhall be therein, as in a writ of treſpaſſe, vi & armis.
The plaintife recouering ſhall be allowed his coſts of ſuit.