Law, Book 4 · Chapter 6 – Chapter 8
CHAP. 6.
Of a writ of right of ward, and a Writ of right Sur diſclaimer.
OTher reall praecipe quod reddats, are thoſe which are in reſpect of a ſeigniorie, as a writ of right of ward, and a writ of right ſur diſclaimer.
A writ of right of ward, is to recouer the wardſhip. If of the bodie, it lyeth both for gardein in ſoccage, and by Knight ſeruice: Fitz. Na. Br. 139.If of the land, it lyeth onelyonly for gardein by Knight ſeruice.
Statutes.
Marleb. cap. 7 In a writ De communi cuſtodia, if the deforcer come not at the grand diſtreſſe, the ſame Writ ſhall be reitterated, as oft as well it may bee within halfe a yeare following, and euerie time the Writ read, and Proclamation made in the Countie Court, if he come not to anſwer, nor the Sherife find him within halfe a year, he ſhall loſe the cuſtodie. Sauing his action another time, if he hauehave right.
Weſtm. 2. cap. 35. In a Writ of ward of land, or heire, or both, either of the parties dying before the plea determined, a reſomons ſhall bee. And in the grand diſtreſſe day muſt be giuen that three Countie daies may be holden before the returne, in euerie of which Proclamation ſhall bee made, whereupon the defendant not appearing, Iudgement ſhall be giuen for the Plaintife. Sauing the right of the defendant, if afterwards he will claime it. So ſhall it be done in a writ of eiectment of gard.
A writ of Right Sur diſclaimer is for the Lord to proue the Lands to be holden of him, when in an action where the ſeruices ſhould bee recouered, As in an auowrie made vponupon the Tenant for them: for there 13. H. 7. 27.he ſhall recouer the ſeruices incluſiue, inaſmuch as he is to hauehave a returne in an Aſſiſe ibid.or praecipe quod reddat of rent (for there the ſeruices are expreſly demanded) but not in a per quae ſeruitia (for there no ſeruices but an Atturnement onelyonly is demanded) nor in a 5. E 4. 2. 13. H. 7. 27. 15. E. 4. 29.Iuſtification, in a repleuin, or an auowrie in an action of Treſpaſſe (for there the defendant ſhall neuer hauehave a returne, nor recouer his ſeruiſes expreſly nor includedly, the Tenant in Court of record, viz. in Old Nat. Br. 162.the Common place, but not in Court Baron or Countie Court. For there if the Lord make auowrie vponupon the Tenant, and hee diſclaime to hold of him, the Lord ſhal be amerced, diſclaimeth to hold of him.
And if in this writ of right ſur diſclaimer, Ibid.he can proue the land to bee holden of him, he ſhall recouer the land it ſelfe for euer: becauſe the diſclaimer is of record. 16. H. v. 1. 34. E. 3. Diſ…. 24.Therefore by ſuch a diſclaimer, he is barred of all poſſeſſorie actions for the ſeruices, as an Aſſiſe, Ceſſauit, rauiſhment of ward, and ſuch like: but not of a Writ of Eſchete, Right of ward, right of cuſtomes, and ſeruices, &c. And though the Lords diſtreſſe & 16. H. 7. 1.auowrie were lawfull, yet the Tenant ſo diſclaiming, ſhall recouer dammages of him, for the diſclaimer giueth the Lord a better aduantage, viz. the Land it ſelfe.
Statutes.
Weſtm. 2. cap. 2. If the Tenant diſclaime in Countie Court, or other Court not of Record, the Lord may remoue the plea before the Iuſtices to cauſe it to be of Record. So as he may hauehave a Writ of right ſur diſclaimer.
Gloceſt. cap. 4. … Explanat. cap. 4. when land is giuen in feefarme, rendring or doing ſo much as amounteth to the fourth part of the value of the Land, if he (whoſe land is charged) let it lye freſh by two yeares, ſo as no diſtreſſe can be found in it, nor render, or do that which is contained in the writing, the other ſhall recouer the land by a Ceſſauit. But the donee comming before Iudgement, if he render the arrerages and damages, and find ſufficient to do from thenceforth, that which is contained in the writing, ſhall tetaine his land.
Weſtm̄ 2. cap. 21. If a man detaine from any Lord his ſeruice due by two yeares, the Lord ſhall recouer the land by a Ceſſauit. This lyeth alſo for the heire of the Lord againſt his Tenant, his heires, or thoſe to whom he alieneth the land.
Weſtm̄. 2. cap. 41. So if religious houſes that hauehave land giuen them, &c. withdraw the almes, &c. by two yeares, the donor ſhall hauehave the like action.
CHAP. 7.
Of a Writ, De couſuetudinibus & Seruitijs, and Secta ad moiendinum.
A Reall praecipe quod faciat is either to recouer hereditaments, or ſome reall thing that concerne them.
Thoſe that are to recouer ſome F. N. B. 151. g.hereditament demanding of … owne ſeiſin are in the debet and ſolet, demanding of the anceſtor ſeiſin, they are in the debet onelyonly, and then are in all reſpects as writs for the meere right, that is to ſay, are triable by battaile, or grand Aſſiſe
Theſe are either in reſpect of a ſeigniorie, or to recouer ſome other hereditament.
In reſpect of a ſeigniorie, as a writ De Conſuetudinibus et Seruitijs, and a ſecta ad molendinum.
A writ De conſuetudinibus et ſeruitijs lyeth Fit. N. B. 151. b.for the Lord that hath an eſtate for life or a greater eſtate, in the ſeigniorie, and is deforced of his ſeruices
Secta ad molendinum lyeth for the Lord, when the Tenants that hold of him by Fit. N. B. 122. ….grinding their corne at his Mill, withdraw their ſuit, and grind elſewhere.
Statutes.
Marleb. ca. 9. The Proceſſe either where the Lord diſtreineth againſt the forme of this Statute, or the Tenants withdraw the ſuits due, is attachment, (wherein onelyonly eſſoin is allowable, and deliuerance of the diſtreſſe incontinently to remaine ſo till the plea be ended) Venire facias, and the grand diſtreſſe. At which day not appearing, the diſtreſſes deliuered ſhall ſo remaine till recouerie in the Kings Courts, til which time the Lord (in caſe he bee defendant) muſt diſtraine no more; and the Plaintife ſhall be diſmiſſed without day, if the defendant come to anſwer, and the matter paſſe, againſt him, the Plaintife ſhall recouer damages.
This of damages to be recouered (in caſe where the Tenant is defendant) is to be vnderſtood of withdrawing the ſuit from the Lord himſelfe, and not from his predeceſſors.
CHAP. 8.
Of a Quare impedit, and a quod permittat.
FOr other heraditaments are a quare impedit, and a quod permittat.
A quare impedit lieth vponupon a diſturbance, Fit. Nat. Br. 33. h.where he, or his anceſtors, or thoſe from whom he claimeth, hauing at any time before preſented to a Church, himſelfe is now diſturbed.
Statutes.
25 E. 3. cap. 3. Stat. 3. VponUpon the Kings collation or preſentment to a benefice, his title ſhall bee well examined, and beeing found before Iudgement vntrue, or vniuſt, the collation or preſentment ſhal be repealed. And the patron or poſſeſſor which ſheweth the falſe title, ſhall hauehave thereupon Writs out of the Chancerie, as many as are needfull.
Marleb. cap. 12. In a Quare impedit, and Aſſiſes of Darrein preſentment, day ſhal be giuen from xv. dayes to xv. dayes, and from three weeks to three weeks. And in a quare impedit the proceſſe ſhall be a ſummons, attachment or grand diſtreſſe.
Weſtm̄ 2. cap. 5. If Coparceners make partition to preſent by turne, and one of them preſent accordingly, he that is afterwards diſturbed ſhall hauehave a Scire facias, (and not be driuen to his quare impedit) and recouer his preſentation with damagess.
An auowſon (after the death of one that hath preſented) being aſſigned in dower, or to Tenant by Curteſie, and they preſent, the heire if he be diſturbed after their death ſhall hauehave a quare impedit, or darrein preſentment at his pleaſure. So of an auowſon demiſed for life, yeares, or in taile, when 6. moneths paſſe hanging a quare impedit or darrein preſentment, ſo as the Biſhop preſenteth by lapps, the patron ſhall recouer damages to two years value of the Church. Otherwiſe damages to halfe a yeares value: The diſturber not being able to render damages, ſhall in the firſt caſe hauehave impriſonment of two yeares, in the ſecond of halfe a yeare.
A Quod permittat lyeth for one that hath Common of paſture for his beaſts, being Fit. Nat. Br. 123. ….diſturbed by a ſtranger, ſo as he cannot vſe his Common.