Jurisdictions, Part 79 – Part 80
Plaint in Precipe.
TReſpaſſe in one tenement with a Toft adjoyning, containing four Acres of land, agreed that this word (Tenement,) is uncertain. 3. E. 4. tit. 28. 11. H. 7. fol. 25. (tenement,) is no tearm to demand a houſe or ſhop. 45. Ed. 3. fol. 6. Precipe of land in D. it is a good Plea that there is no ſuch town.
41 Ed. 3. fol. 22. Precipe in D. and S. for that, that D. is a hamlet of S. and he demands a thing twice, the Writ ſhall abate.
8 E. 4. f. 6. Precipe doth not lie in a hamlet, but in a town, or a place known out of a town; but all Actions perſonall may be brought in hamlet, or town, or place known.
Dower, Aſſiſe, and Scire facias, to have execution of a fine, it may be brought in a hamlet.
16. E. 3. Precipe of a peice of land without certainty, is not good, but of a peice of land containing ſo much, is good: ſee before, 11. H. 4. fol. 38.
13. H. 4. Tit. 33. Dower of a Mill, though after the witneſſe of the Writ it was made a (Toft,) it is good; otherwiſe if it were made a toſt before the witneſſe of the Writ. 14. H. 4. tit. demand 5. the ſame.
13. H. 6. fol. 8. Upon two Verges of the Land are built houſes, and they are meadow and paſture; they are now to be demanded as they are, not as before when they were verges. Fitzh. 192.
6. Ed. 2. tit. 41. Precipe of paſſage over a water, &c. good.
27. H. 8. fol. 14. Precipe is not good of a Common, but of paſture for two beaſts is good. 4. Ed. 4. fol. 2. the ſame.
22. Ed. 4. fol. 13. by Jenney: A man ſhall have a Precipe quod reddat of a houſe and garden, but he ſhall not have a Precipe of a garden alone.
For that, That Plaints ſhall be made for Copi-hold in nature of Precipe, let us ſee of what, and how plaint of Precipe ſhall be made.
PRecipe may be of a chamber, and yet foundation may periſh, for that it is not in perpetuity. 5. H. 7. fol. 9. contrary, H. 6.
11 H. 7. fol. 24. Treſpaſſe may be brought of treſpaſſe in a hamlet, and Precipe ſhall be brought of land in a town, and not in hamlet.
16 H. 7. fol. 7. Aſſiſe doth not lie of a Rectory: Seek if an (Ejectione firme) lyeth of that.
9. H. 7. fol. 21. Precipe of lands in D. by Bryan: over D. and nether D. is good in abatement.
7. H. 4. fol. 9. Waſt in D. it is a good plea in abatement, that D. is neither town nor hamlet.
11. H. 4. fol. 38. Precipe that he ſhould reſtore a certain portion of land, is good by Hank and Hill.
6. Ed. 3. tit. Demand 41. precipe of 8 foot of land in length and 6 in bredth, and good.
13. Ed. 3. tit. 32. & 33. Precipe of an Oxgange of land, is good: Contrary of an Oxgange of marſh, for that cannot be gained, tit. demand 33. & 36.
40 Aſſiſ. 9. Precipe ſhall be brought in a town, and not in a hamlet. 34. H. 9. fol. 1. the ſame.
34. H. 6. fol. 20. Precipe ſhall be in a town, or of a Mannor which is a place known out of a town, and not in a Hamlet. But an Aſſiſe in a Hamlet is good, and alſo in Dower.
Who hath moſt Right, and Right ought to be ſued there.
LIttleton fol. 91. If a man be diſſeiſed by an Infant, the which alieneth in fee, and the Alienee dies ſeiſed, and his heir enter, the Infant within age, he may have a (Dum fuit infra aetatem) or a Writ of Right, or (Entry) at his election: for he hath more right then the heir of the Alienee. But if the Diſſeiſee releaſe to the heir of the Alienee, if now he bring a Writ of Right, the iſſue ſhall be upon the meer right, and ſhall be fonnd for the heir, for now he hath more right by the releaſe of the diſſeiſee.
Littleton fol. 93. If a diſſeiſor die ſeiſed, and his heir in by diſcent, if the diſſeiſee enter, and the heir of the diſſeiſor brings an aſſiſe, he ought to recover: But if he brings a Writ of Right, the iſſue ſhall be upon the meer right, and there the heir ſhall be barred; for the diſſeiſee hath more right.
Right Patent is to be directed to the Lord, of whom the land is held, unleſſe it be held of the King or Queen, and it is as a Commiſſion to the Lord; that he ſhall do Right. And it may be removed by a (Recordare) by the Tenant with cauſe, and by a (Pone) by the demandant without cauſe, and after that it be removed in County, it may be removed by the demandant by a (Tolt) Fitzh. fol. B. and Britton fol. 275. where the Tenant puts him upon the grand Aſſiſe, it ſhall be removed, Fitzh. fol. 1. F.
Where Judgement final ſhall be, and where not.
IN a Writ of Right, Judgement final ſhall be given; but after the miſe joyned, and upon every recovery upon departure in deſpight of the Court, Judgement final ſhall be. As in Right againſt a Prior, which voucheth common Cryer, which en…reth into the Warranty, and the demandant Imparles, and at the day the Vouchee departs in deſpight of the Court, and upon this Judgement final given. 26 H. 8. f. 10. 12 H. 7. f. 10. If the tenant in Writ of Right joyn with the miſe, & after depart in deſpight of the Court, Judgement final ſhall be given. So if he joyn the Miſe by a Champion, and makes default, Judgement final ſhall be given; but if he make default at the Niſi prius, and upon a petty Capias, yet he cannot ſave his default, Judgement final ſhall not be. The ſame Law if he make default after default, before the Miſe joyned, Judgement final ſhall not be.
Fitzh. fol. 11. If a man looſe by default in a Writ of right before the miſe ioined, yet he ſhall have a Writ of right againſt him which recovers. But after the miſe ioined it is otherwiſe, for then upon default after the miſe ioined the iudgement ſhall be finall as well againſt the defendant for his non-ſuit, as againſt the Tenant, if he make default afterwards.
10 H. 6. fol. 2. Right, the Tenant vouches, and the vouchee comes in and joins iſſue, and the demandant imparles till the next day, and at the day, the Tenant was demanded and makes default, judgement final ſhall not be given againſt the vouchee there.
1 H. 6. fol. 7. Where the miſe is joined by battell in right, and after the champion of the Tenant maketh default, judgement finall ſhall be given.
Time of Ed. 1 Tit. 44. if the Tenant make default after the miſe joined, he ſhall looſe the land for ever, if he cannot ſave his default.
3 H. 6. fol. 37. If the Tenant in right ſaith, that he hath more right, ready to try by battell, and the plaintif rejoin, and day given, and at the day, the Tenant makes default, And for that, that the Juſtices ſee a fine, by which the Tenant hath but an eſtate tail, they adviſe of the iudgement, and clearly where the Tenant makes default after the miſe ioined, if it were fee, iudgement finall ſhould be.
Proceſſe in Court Baron, is ſummons, attachment, and diſtreſſe, which is proceſſe at the common law, 34 H. 6. fol. 53. and 37. H. 6. fol. the ſame.
By Martin, one cannot have a Capias in Court Baron, nor execution there (by Capias to ſatisfie) but the naturall excution and proceſſe is, attachment of goods, as after more at large appears, 3 H. 6. fol. 56.
Proceſſe upon plaints for Coppy-hold land, is the ſame proceſſe, which is at the common law, in nature of what Writ the plaint is.
Amerciament in Court Baron for ſuit and otherwiſe, and what remedy for that, and where it ſhall be moderate.
MOderata miſericordia lies, where a man is amerced in a Court Baron outragiouſly, and upon that alſo lieth, Alias, pluries, and attachment. But if the amerciament be affirmed by equals, moderata miſericordia, doth not lie, 10 Ed. 2. Tit. action upon the Stat. 34.
And note, that this is the cauſe, that in all Court Barons three are ſworn to ratifie the amerciaments, after that the homage hath preſented the offences, and Bracton calls them Truſtees, Amercers, and Affirmors, alſo it ſeems to be by the ſtatute of Magna Charta, chap. 14. and by Weſtminſter, 1. chap. 6. which is that a man be not amerced, but by his equals, Fitzh. fol. 75. A.
Debt lieth by the Lord, for amerciament in his Court Baron affirmed, and there held that the defendant may wage his law in this action, alſo amerciament may be in Court Baron upon the plaintif, if he be non-ſuited, and upon the defendant if it be found againſt him, or if he fail of his law, Statham, 12 R. 2. fol. 65.
A free man ſhall not be amerced for a ſmall fault, but according to the manner of that fault, and for a great one, according to the greatneſſe of the fault, ſaving to him his freehold, and to a Merchant ſaving his Merchandize, and to a villain ſaving his waynage. And upon this Statute is (Moderata miſericordia) founded, as appeareth by the Regiſter. And Glanvile ſaith, there is alſo mercy, becauſe who by the oath of lawfull men is amerced, ſhall looſe nothing of his honourable freehold, Magna Charta, chap. 14.
If the Lord of his own head amerce any Tenant or party in the Court Baron without cauſe, the party may have a treſpaſſe, if he be diſtrained for that amerciament, Fitzh. fol. 75. C.
If the Steward or the Bailiff wil aſſeſſe any amerciament without confirming by two upon their oaths, after that the homage hath preſented the offenders, there is a ſpecial Writ, thereupon the Stat. of Magna Charta, chap. 14. upon theſe words, that none ſhall be put upon the aforeſaid mercies, but by the oath of good and lawfull men, ſo that the Steward cannot confirm the ſaid amerciaments, by this Statute, but the affirors or affirmors, Fitzh. fol. 76. D.
Amerciament in Court Baron, which is the 12. and 13. Article of the Charge, for a Treſpaſſe done to the Lord, and what remedy for it.
LOrd of Court Baron may have an action of debt in his own Court for amerciament due to him, Juriſdiction 117 Suitors.for that, that the Suitors are Judges there, and not the Lord in his Lordſhip. Time Ed. 1. Tit. 177. and Statham, 12. R. 2. fol. 5.
Debt lieth by the Lord for amerciament aſſeſſed in Court Baron, and affirmed there, and Bracton ſaith, that the aſceſtors ſhall confirm, that they ſhall oppreſſe none for hate, nor eaſe others for love, and that they ſhall not conceal thoſe things which they heare, ſo that the Lord cannot amerce for treſpaſſe done unto himſelf, unleſſe by cuſtome and uſage, otherwiſe it is extortion.
The Lord cannot amerce a man in his own Court, for treſpaſſe made to himſelf by the Law, but he may by cuſtome; but if he levie the amerciament, it is a good barr in treſpaſſe, be the cuſtome ſo or not, and if it be not uſed, it is extortion, 12 H. 4. fol. 9.
It ſeems that for a ſmall treſpaſſe made to the Lord, he may be amerced in the Lords Court, and if it be confirmed and paid, the Lord ſhall not have treſpaſſe of that, 14 Ed. 4.8. and 7. H. 4. fol. 8.
If Tenant be amerced in the Lords Court, for treſpaſſe to the Lord, it is extortion, but if the Lord accept the amerciament, it is good ſatisfaction for the preſpaſſe, and good barr in treſpaſſe, 48 Ed. 3. fol. 8.
In treſpaſſe by the Lord, it is a good barr that the treſpaſſe was affirmed by the Suitors, 48 Ed. 3. fol. 8. and 47. Ed. 3. fol. 19.
Attachment in Court Baron upon debt or treſpaſse or in any other action, it ſeems that he ſhall forfeit the thing attached upon default, and what thing ſhall be attached, and what not, let us ſee.
By Billing, Wangford, and Needham, that in (Pone) in Court Baron the goods attached, if he make default ſhall be forfeit to the Lord, tit. Court Baron, 1. Brook report, that 37 H. 6. is contrary, but this is not in the long report, 34 H. 6. fol. 49.
If a Bailif attach a beaſt in Court Baron, and it was returned attached, and doth not come, it is forfeit to the Lord, 28 H. 6. fol. 9.
If the Sherif attach a Cow the property is not out of the defendant, till he make default upon return of that, and if the Sherif leave the Cow attached with the defendant, yet if he make default it is forfeit to the King, and the Sheriff may take it with him at the firſt if he will, 9 H. 7. fol. 6.
By Brian, a plaint cannot be affirmed in a Court Baron, but the Court ſitting, and ſo attachment ſhall be awarded, the Court ſitting, notwithſtanding it is uſed otherwiſe, 21. Ed. 4. fol. 79.
By Babington, that attachment ſhall be by a meer chattel, which ſhall be forfeited by default of the party; but it ſhall not be by a chattel real, as a leaſe for years, or a ward, nor for apparrel, 7 H. 6. fol. 10.
That attachment ſhall be of chattels which a man may forfeit by outlawry, 26 H. 6. Tit aſſiſe, 14.
By Moyle, That no goods ſhall be attached but the proper goods of the party, and not the goods which the party hath in pawn, or that he hath borrowed, 35 H. 6. fol. 25.
The precept of attachment is made, as it followeth, &c.
IK. Steward to the Bailiff of the ſame, health; Prebend of Iſlington, Attachment.becauſe I.S. complaineth againſt I. D. in a Plea of debt of 30 s. or in a Plea of Treſpaſse, if the Plaintiff ſue a treſpaſse, &c. or in a Plea of detaining, &c. and find pledges to proſecute, &c. Therefore I command you, that you ſhall attach the aforeſaid I. D. by all his goods and chattels, to anſwer the aforeſaid I. S. inthe Plea aforeſaid, at the next Court there to be held, and have there this precept and how, &c. Dated the 23. of April, the year of the Raign of Queen Eliz, &c. 22.
By me I. K. Steward.
Note, that in a Court Baron a man ſhall be attatched by goods, and there ſhall iſſue no Capias there.
Where the entry is, The great Court of J.S. there held, this is but a Court Baron. And where the entry is, To the great Court with Leet, it is preſented, this is uncertain and not good; for the entries ſhall be ſeveral as it follows afterwards, 10 Ed. 4. fol. 17.
By-Laws.
I entend that By-Laws and Paints, which is the 21 Article of Charge, may be made in Court Baron as well as in Leet.
IT is ſaid that a town may make by-Laws, 11 H. 7. fol. 14. and 44 Ed. 3. fol. 19. and that where by-Laws are for the Common-wealth, are good; and it is general, that by-Laws may be, and it is not material in what Court, ſo I intend, for theſe cauſes were made in Court Baron.
By-Laws for inheritance ſhall not bind, but thoſe which were parties to it, and not any other which was no party, 15 Eliz.
One by-Law may order the Inheritance of a man, but cannot diſ-inherite any, by Manwood 15 Eliz.
By-Law may be made in Leet, and may be in a town by Harper, and ſhall bind every one, if it be for the Common-wealth, and otherwiſe not, but onelyonly he which agrees, and not an eſtranger, 11 H. 7. f. 14.
One avows taking of diſtreſſe, and preſcribes, that, &c. there was a cuſtome had, that all the tenants or the greater part of the tenants of this Mannor, and other the reſidents and Inhabitants within that Mannor, or the greater part thereof to the Court Baron of that Mannor, held at the ſaid Mannor, were uſed and acuſtomed to make Laws, called by-Laws, which proves that by-Laws may be made in Court Baron as in Court Leet.
2 Eliz. Dier ſaith, That a Steward by aſſent of the tenants in his Court could not by the Law apportion himſelf, and the reſidue of the tenants, of their Common for ſheep, if they have that by the grant of the Lord himſelf; But if they have that by preſcription, otherwiſe it is: And they may agree, that he which ſurcharges ſhall pay to the Lord ſo much, but then it behooveth the Lord to ſhew authority by preſcription, that his tenants have made ſuch by-Laws of the Commons, and other things of Land, of time whereof, &c. and ought alſo to preſcribe, that he had uſed to diſtrain for that, but if ſuch amerciament had been paid without diſtreſſe of their accord, this is good evidence to the preſcrption of diſtraining.