¶An exposicion of the kinges prerogatiue collected out of the great abridgement of Iustice Fitzherbert and other olde writers of the lawes of Englande by the right woorshipfull sir William Staunford Knight, late­ly one of the Iustices of the Queenes maiesties court of comon pleas:

Whereunto is annexed the Proces to the same Prerogatiue appertaining. 1567.

To the right honorable sir Nicho­las Bacon knight, lord keeper of the great seale of Englande: Richard Tottel wisheth health and long lyfe, with encrease of honour.

NOt long sythens, right hono­rable, and my especiall good Lord, there was deliuered to mee A collection of the kinges prerogatiue, whiche Maister Staunforde had gathered and dedicated vnto your honour: which woorke by­cause it is thought well of by the Sages of the lawe, and well worthy to be printed, I am there­fore the bolder to put it in print, and publishe the same. And although the saide Maister Staun­forde verie shortlye after that hee hadd dedi­cated the same booke vnto your Lordship, were for his wisedome, grauitie, learning, integritie, & syncere dealinge, aduaunced to be a Iudge in the chiefe Court of this Realme for common plees, and for his good seruice therein was by iust de­sert made knight, and albeit that your Lordship also sythens that tyme haue achieued the place, [Page] title and degree of high honour by the iudgemēt & calling of the Queenes most excellent maiesty: Yet I haue printed the Epistle dedicatorie of the said woork, in the same termes that the Authour thereof vsed, and with the same stile that your honour, and he both then had, when he dedicated the said woorke vnto your Lordship, as a Monu­ment and token of the mutuall & long continued amitie betwene you: moste humbly praieng your Lordship to accept in good parte, accordinge to your accustomed goodnes, this my boldnes with your honour, and to pardon the same.

Your honours most bounden Richard Tottell.

¶Guilielmus Staunfordus Nicholao Bacono Regie Maiestati a Tutelarum procuratione. S. D. P.

QVanquam Anglicanae leges (amice singularis) haud minorem meren­tur laudem, quā Iudex Fortescueus li­bro de earum laudibus conscripto, eis tribuere videtur: tamen quoniam ea­rum cognitio tam procul nobis dissi­ta sit, profectio ad eam tam supra mo­dum longa ac operosa, tū viae et semi­tae tam asperae, tā salabrosae, tam inamae­nae sint, vt ad sui aditum paucissimos inuitet, quā plurimos ab sterreat, vel potius auertat: Optarem in tanta iurisperitorum turba: quam Anglia nunc habet, aliquid excogitari posse, le­uandis legum Studiosis, prolongo isto ac molesto itinere. Vt propiore ac commodiore via ducti, valerent et proficiscēdo & absoluto itinere, alias degustare literas: quibus, non solum legalem scientiam multum illustrarent, sed et munia eis a Regia Maiestate mandata, tum pulchriûs, tum honorificentiús, administrarent. Id quod (meo iudicio) cōmodissimê fieri pos­sit, si tituli, in magna (quā vocant) Fitzherberti Epitome, vel a Iudicibus nostris, vel ab aliis legum peritis, sedulo forent e­uoluti at (que) elaborati, hoc est, omni titulo, in classes ac ordines distributo, singulis eorum actis ac causis, certae legum regulae ac Maximae presiderent. Exempli gratia. In Breuis titulū ca­dere possunt hec videlicet, Forma, vitiosa Nomendatura, seu ꝑsonae, seu vici, Eadē res bis petita, Obitus vel actoris vel rei, Nominis alterutrius partis pēdente lite mutatio, cetera (que) hu­iusmodi quae nunc nimis longo titulo spersa tam tumultuarie reperiuntur: vt multo maiorem tum eruditionem, tum sudo­res, tum vigilias, exigat eorū distributio, quā rectê distributa [Page] ediscere. Et tamen non possum committere, quin tantae epi­tomes scriptorem: vel amplissimis laudibus veham, qui súma sua doctrina, exactissimo iudicio, immensis ac pene dixerim exanclatis laboribus, tam numerosam voluminum multitudi­nem, quibus vel legendis vix vnius hominis aetas (quantum­libet viuacis) sufficeret: in vnū dūtaxat volumen at (que) adeo e­pitomen contraxit, vt nunc nostratibus iurisperitis modo volentibus minima opera componere liceat: quippiam, tam fa­cile, tam vtile, tam frugiferū: vnde studiosi dimidiato tempo­re quo antehac legibus obdormire sint visi: cum maturiorē, tum certiorem noticiam assequerentur, Quo nomine: rei mi­hi tam vehementer expetitae: typum quendam pro posui, ac quasi primas inde lineas duxi, Recipiens ad me, huiusmodi p̄ ­dictorum titulos: qui Regiam prerogatiuam spectant: non quod sum aliqua ex parte dignus, rem tam eximiam, tamque sublimem tractare: nec quod eruditione id prestare valeam: Siquidem de meo, nihilo plus hic est, quā collectio ac dispo­sitio tantum earum rerum, quae eisdem titulis includuntur: Sed magis quod istud meum commentitium, qualecunque sit, tibi semper destinaueram, id quod in nullum alium preter hunc titulum, cōmodè experiri potui, tum quod ad magistra tum tuum Regij procuratoris tutelarum, maxime partinere videbatur, tum quod cōpertum habeo, te iurisprudentiae in­cūbentem, hūc quem proposui morem hactenus obtinuisse: quod fecit, vt reliquos tuos contemporaneos eruditione: multis stadijs precurras: tum denique quod tuum iudicium super hisce rebus in quibus assiduè versaris ac exercitaris re­quiro. Certus me hic rem habere cum homine tam amico, vt si quid lectione dignum inuenerit: id pergratè sit accepturus, sin minus, certè aequi boni (que) consulturus, reliquum quod ha­bet vitij: emendaturus, aut saltem ad id coniuere velle cōfi­do. Proinde istud, quicquid est, tibi nuncupo, lege, ac pro tua voluntate fruere.

Vale.

To the right woorshipfull and his singuler frinde Nicholas Bacon the kinges Attourney of his court of wardes and Liuereys William Staunford wisheth helth, long lyfe and prosperous successe.

ALbeit the lawes of Englande right singuler frinde are worthye no lesse honour, praise and commendacion, then Iustice Fortescue in his booke written of the praises thereof dooth attribute and geue vnto them, yet forasmuch as the knowledge of the said lawes is placed so farre of, the iourney thereunto so exceading long and painefull, & the waies and pathes so rugged and vnpleasant: I would wish that amonges such plenty of learned men as be at this day some thing were deuised to help the studēts of their lōg ior­ney that they (being led a more nere & plesant way) might both as they went and after they came to theire iorneis end gather some other knowledge, not onely therewith to gar­nish theire owne science, but also the better to serue in such honorable rome as they be called to serue the kinge and so­ueraigne lord in, which thing might well come to passe af­ter my poore mynde, if such titles as be in the great abrige­ment of Iustice Fitzherbert were by the Iudges or some o­ther learned men labored & studied, that is to say, euery title by it selfe by speciall diuisions digested, orderd and disposed in suche sort as that all the iudiciall actes and cases in the same might be brought & appere vnder certeine principles, rules and groundes of the saide lawes. As for example, vn­der the title of Briefe might come these titles, Fourm, Mis­naming of the persō, Mysnaming of the town, One thing [Page] twise demaunded, death of the plaintifes side, death of the defendauntes syde, chaunginge of the name of the plein­tife or defendaunt hanginge the sute, with manye suche o­ther lyke which nowe as thinges scatered abroade and out of orderlye hidden wythin the saide longe tytle that it re­quires muche more learninge, paynes and Studye well to order and dispose the matter in the same, then (after order made) to learne and beare it awaye. And yet surelye there cannot bee to muche praise and commendacion geuen vnto that greate learned man the Auctour of the saide great ab­bridgement, which by his greate learninge, exact iudge­ment and intollerable paynes, brought suche an infinite nomber of volumes (to the readynge whereof A mans lyfe woulde scant haue suffised) to a muche more lesse and na­rower cōpasse, whereupon nowe these learned men wyth lesse paynes might compile the thing that should be so easy so profitable and fruitfull to the studentes thereof, that in halfe those yeares they now lye sleping in, they might come to a ryper and more certeine knowledge and better iudge­ment: For which cause I haue drawen as it were a patern of the thinge I so muche desire takinge vppon mee such ty­tles as appertaine vnto the kinges prerogatiue, not as one in anye parte woorthy to treat of a thynge so high & pre­ciouse as that is or in learnynge sufficient or hable therun­to (for of myne owne here is nothinge more then onelye a colleccion and disposition of that that is alreadye contay­ned in the saide tytles) but rather because I haue alwayes meant this my deuyse vnto you, which I coulde not doe or practise so well vppon anye tytle as vppon this that apper­tayneth vnto your office of Attourneyshippe of the wardes and liueries, partly for that I knowe your selfe to haue ob­serued the like order in your owne Study, whiche in fewe yeres hath gotten you aboue other the greate learnynge you haue, partlye also for that I couet your Iudgement in [Page] these matters wherewith you be daylye in vre and exersi­sed, knowinge that I haue to doe herein with one so muche my frynde that if there be any thinge worthie the readinge he will take it thankfullye, and if not so, well, yet will hee take it in good part, the rest that is amisse he wil beare it with me. This therefore what soeuer it bee I dedicate vnto you, read it, peruse it and make of it what you will. Fare you well, from Greis Inne the sixt of Nouember. Anno. 1548.

¶Prerogatiua regis, edita, Anno. 17. E. 2.

Cha. 1.

DOminus Rex habebit custodiam om­nium terrarum eorum qui de ipso tenent in capite per seruiciū militare de quibus ipsi tenentes fuerunt seisiti in dominico suo vt de feodo die quo o­bierunt de quocunque tenuerint per huiusmodi seruitium dum tamen ipsi tenuerunt de rege aliquod tenemen­tum ab antiquo de corona vsque ad legittimam aetatem heredis: Exceptis feodis Archiepiscopi Cantuariensis, Episcopi dunolm̄ inter Tine et Tese, feo­dis Com̄ et Baronum de marchia de terris in marchia vbi breuia domini regis non currunt. Et vnde predict' archie­piscopus, ep̄us Com̄ et Baron̄ habeant huiusmodi custodiā licet alibi tenuerunt de Rege.

Prerogatiua is as muche to saye as a priuilege or preemi­nence that any person hath before another whiche as it is tollerable in some, so it is most to be permitied and allowed in a prince or soueraine gouernor of a realme. For besydes that, that he is the most excellentest & worthiest parte or mē ­ber of the comon body of the welth, so is he also (through his good gouernaunce) the preseruer, nourisher, and defender of all the people beeing the rest of the same bodye. And by his great trauailes studie and labours they enioy not onlye their lifes landes and goodes, but all that euer they haue besides in rest peace and quietnes, as Seneca sayethe:Seneca de consolat ad Polibium Om­nium domos illius vigilia defendit, omnium ocium illius la­bor, omnium delicias illius industria, omnium vacationem il­lius occupatio. For which cause the lawes do attribute vn­to him all honour, dignitie, prerogatiue and preeminence, which prerogatiue doth not onely extend to his own persō, [Page] but also to all other his possessions goods and cattals. As that his person shalbe subiect to no mans suite, his possessi­ons cannot be taken from him by anye violence or wrong­full disseisin, his goods & cattals are vnder no tribute, tolle nor custome, nor otherwise distreinable: with an infinite nomber of prerogatifes more, whiche were to tedious here to recite. Howbeit forsomuch as in euery realme, the kin­ges prerogatifes are no small parte and portion of the pro­fites and commodities of the Corone of the same, & name­lye within this realme of Englande, it hath bene thought good heretofore to declare and setfurth in writing certeine of the most highest and weightiest matters and articles touching the said prerogatifes. And hereupon was there a de­claracion made in writing by auctoritie of parliament hol­den in the .17. yere of the raigne of kinge Edw. the .2. the be­ginning wherof is in maner and fourme as is aboue writ­ten: Howbeit this parlament maketh no part of the kinges prerogatife, but long time before it had his being by thorder of the commen law, as plainlye may appeare by them that haue written before the making of the saide statute of pre­rogatife.Glanu. li. 70 For Glanuill, who was chiefe Iustice in kynge Henry the .2. daies writing of this matter saith in thys wise. Notandum quod si quis in Capite de dn̄o rege tenere debet, tunc eius custodia ad dominum regem plene pertinet, siue a­lios dn̄os habere debet heres fiue non, quia dominus rex nul lum habere potest parem, multo minus superiorem.

Bracton. li. 1 de custod' et marit' domi­norum.Also Bracton whiche wrote in the time of the latter raigne of king Henry the .3. saieth. Si aliquis heres terram aliquam tenuerit de domino rege in capite siue alios dominos habu­erit siue non, dominus rex aliis prefertur in custodia heredis siue ipse ab aliis prius feoffatus fuerit vel posterius, cum rex parem non habet in regno suo. Both these wryters doe not onely agree in euery point, but also geue a reason why the kinge shoulde haue the prerogatiue conteined in this firste [Page 6] chapter. Also Britton, an other old wryter which wrote hys booke in king Edwarde the first name sayeth, des heirs ne­quedent si ils y eyent ascuns qui auncestre morust seisie de ascun terre tenu de nous en chief des aunciens demeanes de nostre corone volons auer les gardes de touts les terres dōt appent que deiuent descend a ceux heirs come lour heritage ouesque touts les blees en teles terres troues maintefoits de qui fees que les terres sont. Britton here not only agreeth wt the other, but also geueth the king the corne growing vpon the groundes which the kinges tenant holdeth at the tyme of his death.A. 21. H. 3. in Fitz. ti. Pre­rogat'. P. 26. & P. 25. Also in the great Abridgement of Fitzherbert you shal find in the time of king Henry the thirde written in this manner. Nota quod lex angliae et consuetudo eiusdē est quod a quibuscun (que) aliquis feoffatus fuerit dum tamen a domino Rege aliquo tempore fcoffatus fuerit per tenemen­tum qd' tenetur per seruic̄ militare, quod dn̄s rex habebit custod' omniū terrar' et tenemētorū tā de feoffamēto aliorū quā de feoffamento proprio. Which text if a man will any thing wrest he may make the kinges prerogatiue more ly­berall then is made or declared by this statute or any other the writters before remembred, for it extendes to any lan­des holden of the king by knightes seruice whether they be holden of the king in capite or not: but forasmuche as the saide other writers haue written so plainlye in this matter we will stand to them and extende the prerogatiue no fur­ther, howbeit (as I saide) all those writters being so longe before the making of this statute doe plainly argue & proue that this statute dothe but confirme and declare that that was the commen law before,M 15. E 4.12 vnles we woulde doubt of the time of the making thereof as Littleton doth in 15. E. 4. but without doubt it was made in king Edward the secondes time, and that plainlye appeareth by the woordes contay­ned in the third chapter of this prerogatiue, which be these. Et illa voluntas tempore Regis. H. patris Regis E. estimari consueuit &c. Which woordes were not written in kinge Edward the first daies, for then the woords had bene patris [Page] nostri, so that (as I thinke) it is not to bee doubted but that it was written in the time aboue limitted and expressed. Then go wee to thexposicion of this first chapiter of prero­gatiue. The woords be, dominus rex habebit custodiam omnium terrarum eorum qui de ipso tenent in capite per serui­cium militare. These woordes go generally to all the kings tenauntes, that is to saye, aswell to his tenantes for terme of lyfe, as to his tenauntes of estate of enheritaunce, if it so be that he that is in the reuercion haue the saide reuercion by discent, and be heir vnto the said tenant for terme of life, not forcing whether he haue the reuercion by discent from the said tenaunt for terme of life or else from any other an­cestour, as take the case to be this, a man holdeth no landes of the kinge but onely as tenaunt by the curtesie, and those landes are holden in chiefe by knightes seruice & the saide tenaunt by the curtesie is seased in his demesne as of fee of landes holden of other lordes and dieth, the landes hol­den of other discend vnto him in the reuertion whiche is indede nexte heire vnto the said tenant by the curtesie, in this case the king shall not onely haue the wardship of ye landes that were holden by the curtesie if the saide heire be wythin age, but also the landes holden of other by vertue of thys prerogatiue. And if the saide heire were of full age at the tyme of the deathe of the saide tenaunt by the curtesie, the king shall haue primer season both of the one lande and of the other, as it appeareth in the newe Natura breuiū. fo. 298. Like lawe is it if a woman be indowed of lands holden in capite and is seased in fee simple of landes holden of other and dieth seased, and they discende vnto the heire whiche is in the reuercion, in this case the kinge shal haue bothe these landes by vertue of this prerogatiue, like as hee shall haue in the other case before,26. li. ass. p. 57 and that maye you see in. 26. li. ass. for in bothe these cases they bee the kinges tenauntes, and hold of him by knightes seruice in capite, for tenaunt en [Page 7] dower in the kinges cas holdeth not of the heire but onelye of the kinge, as it shal appeare more fully hereafter. But if he in the reuercion bee not heire of the landes holden of o­ther in the cases aboue remēbred otherwise it is. But what if he in the reuercion haue the same reuercion by purchace and not by discent whether shall the king then haue his prerogatiue or not? and as to that it shoulde seeme by the newe Natura breuium fo. 259. that the kinge shall haue his prero­gatiue in that case also, for there the remainder was to the heire and to his wife and to the heires of theire two bodyes lawfully begotten, and the husbande in the remainder dyd sue liuere, howbeit against ye law as me semeth, ideo quere. but if the case in the saide newe Natura breuium had been, that landes holden by knightes seruice in capite had beene geuen to one for terme of his lyfe the remainder ouer in fee which parson in the remainder hath issue and dyeth and te­naunt for terme of lyfe holdeth landes of other Lordes and dyeth whiche discende to the issue that is in the remainder, there it might be saide that the king shoulde haue preroga­tiue in the whole like as he had in the cases before remem­bred of tenaunt by the curtesie and tenant in dower, for like reason will serue in the one case that serueth in the other. The woordes of the Statut be further, de quibus ips [...] tenē ­tes fuerunt seisiti in dominico suo vt de feodo die quo obie­runt de quocunque tenuerint. These woordes rather apperteigne vntoo the landes holden of other then too the Landes holden of the Kinge in Capite, as it shoulde ap­peare by the cases beefore remembred, and then by these woordes the kinges tenaunt in his life tyme must himselfe bee seased either in possession or reuercion of those landes that hee holdeth of a common person that shall dys­cende vnto his heire, For if hee were neuer seased thereof but they discende vnto his heire from some other auncestor, the king shall not haue his prerogatiue in them as appea­reth [Page] in 15.15. E. 4. f. 10. E. 4. but whether the kinges tenaunt were seased of them in his owne right or in another bodyes right it ma­keth no difference, as take the case he were seased of them but in right of his wife and hath issue and dyeth, his issue is in the kinges warde for the lande that his father helde in Capite, and afterwarde the wife dyeth the issue beynge still in warde, the Kynge shall haue Prerogatiue in these landes of the wyfe also, because the husband was seased of them in his demeane as of fee the daye of his deathe, and so wythin the compasse of this statute. And this case may you see in.M. 13. H. 4. 6. 13. H. 4. and note, that notwithstandinge this statute speaketh but of landes, yet seruice are to bee taken by the equitie of the same, as it is plainlye proued by the woordes of Diem clausit extremum, which saieth Quantum terre te­net de nobis aut de aliis tam in dominico quam in seruicio. So that if one holde of the kinges tenaunt by certeine ser­uices, the King shal haue the seruices in warde, for they be in nature and place of the lande that is holden, and so shall it bee supposed. And therefore when the kinge hath those seruices in warde and the tenaunt that holdeth by those ser­uices di [...]th his heire within age, if the saide seruices were knightes seruice the Kinge shall haue warde by reason of wardshippe: But yet by that noe prerogatiue in the other landes of the second warde whiche are holden of the other Lordes,M. 6. R. 2. in Fitz. ti. Gard P. 105. as it may appeare in 6. R. 2. For the kinges tenant was neuer seased of those other landes ne yet of the seruice that they were holden by, and so without the compasse of this prerogatiue. Like lawe it is where the Kinge hath the temporaltie of a bishop in his custody duringe the tyme the Sea is vacant, and one that holdeth of those temporalties by knightes seruice dieth his heir wtin age, ye king shal haue ye wardship of him, & the reason of it is, because ye king hath ye wardship of ye tēporalties, by reasō wherof this wardship cometh, whiche temporalties the kinge hath in warde by [Page 8] the order of the common lawe, in lure corone: For they bee barronies, which can be holden of none other then of the kinge in capite, and then by the common lawe, I take it he were no better then a common person: yet his highnes must haue the wardshippe of them that holde of those tem­poralties by knightes seruice if they falle duringe the time the saied temporalties be in his hands with such landes as they holde of those temporalties but not with such lands as theye holde of other, and than must the heire thereof when he cōmeth to his ful age sue a liuere as shalmore plainly appeare when we come to the thirde chapiter of this preroga­tiue. The wordes of the statute before resited are, in domi­nico suo: this woorde demeane is not here taken to bee the verie possession or takyng of the profits, for if the kinges tenaūt dye seased but of a reuercion or of a remaynder in lan­des holden of a common person and duringe the minoritye of his sonne the particuler tenaunte dyethe, the kynge (this notwithstanding) shall haue this lande in warde as he hath the rest as it may appeare. 22. H. 6.15. E. 4. &. 46. E. [...].M. 22. H. 6. f, 20, M. 15. E. 4. f. 10. P. 46. E. 3. fo 10. So it is if the kinges tenaunt dye seased of an aduowson appen­daunt to landes holden of a common person. The woordes be further, die quo obierunt, and therefore if the kinges te­naunt dye seased, of Landes holden of a commen persone and a straunger abbatethe, yet the heire shalbee in warde, and the kyng maye entre and so is it if the heire recouer by assise of n [...]ortdauncestre as it appeareth in the newe Natura breuium fol. 2 [...]. &. T. 12. R. 2. But take the case to bee that the kinges tenaunte dye not seased but is disseised and dy­ethe, whether in this case the kynge maye haue prerogaty­ue or not, and it semethe that hee may, for in all suche cases where the heire hath a right of entre, the kynge may entre in name of the heire and holde it afterwarde in warde: but yf the heire haue but a title of entre or ryghte of accion it [Page] seemethe to be otherwise, howebeit looke for those ma [...]ers in the sayde booke of 15. E. 4. &. 12. H. 7. &. 18. Edwardi ter­tii lib. ass. P. 18.T. 12. H. 7. fo 17. Where it is adiudged that of landes hol­den of the kynge in chiefe, the kynge as in ryghte of hys warde myghte sease by a Scire facias vppon a tytle of entre. And note also that there is somewhat more to bee vnderstanden beare thenne is wrytten or expressed, that is to saye, that the saide Landes muste discende too the kynges warde, for notwythestandynge the kynges te­naunt weare seased in hys demeane as of fee daye of hys deathe in landes holden of a commen persone, yet if the sa­me after hys deathe doe not discende to the kynges warde, but to an other heire,M. 12. E. 4. f. 18. the kynge shall not haue prerogatiue in them as it appearethe in. 12. Ed. 4. The woordes of the statut bee also De quocunque tenuerunt. Put case the kin­ges tenaunte is seased of certayne thynges whyche ney­ther are holden of the kynge nor yet of anye other, whether shall the kyng haue them in warde or not, as Merket, warr [...]n,A. 3. H. 7. f. 4 21. H. 6. f. 12. 46. E. 3. f. 10. 15. E. 4. f. 12. Rente Secke, or aduowson en grosse: and as it should appeare in. 46. E. 3. &. 21. H. 6. the kynge cannot haue them in warde and yet in 15. Ed. 4. soome holde oppinion to the contrarye, therefore inquere and learne what the lawe wil in these cases. The woordes of the statute bee, Per huius­modi seruicium, that is to saye, by lyke seruice. Bye these woordes the landes that are holden of other muste bee hol­den allso by knyghtes seruice or els the statute extendes not to them, and yet the lawe is taken to the contrarye, for yf the lands holden of other bee holden but in socage or free burgage the kynge shal haue prerogatiue in them as it ap­pearethe in.P. 24. E. 3. f. 13. T. 9. H. 3. ti. Prerogatiue in fits. [...]. 25. 24. E. 3. for this statute is but a confirmacion of the common lawe, and therefore shallbee taken by e­quities and namelye when the lawe was so taken in. 9. H. 3 whiche was longe time beefore the makyng of this statut. [Page 9] Howebeit Bracton and Britton dothe extende this preroga­tiue no further then to landes holden of other by knightes seruice, therefore enquire for the cause and reason thereof.Bracton li. primo de custod. et releuiis. Britton. f. The woordes bee further, Exceptis feodis archiepi. cantuar' &c. This exception extendes not to the bodie, wherefore the kynge shall holde that in warde againste al men, but it ex­tendes to suche landes as are holden of these persones ex­empted by this statut. Put case then that anie of these per­sones pourchace a seignorie since the tyme of the makynge of this statute, shall the kynge haue hys prerogatiue in the landes holden of that seignorie or not? And it is clere he shal notwithstandynge the aforesayde woordes of exception: for theye doe not extende but to suche fees as we are theyrs at the time of the makynge of this statut. Then further, for asmuche as there bee diuers statutes concernynge warde­shyppe made aswell beefore as since the time of kynge Ed­warde the seconde, let vs see whether this prerogatiue wyl extende to those statutes or not, and it seemethe it dothe, for asmuche as this prerogatiue hathe beene euer from the be­ginninge as I haue sayde before: And therefore if the kyn­ges tenaunte beeinge seased of landes holden of a common parson makethe a feffement therof by collusion contrarie is the statute of Marlebridge to defraude the lord of the ward­shippe and diethe, the king hauing his heire in warde & this matter founde by office shall sease vpon a Scire facias if the collusion be auerrable, or wtout a Scire facias, if the collusiō be apparaunt & hold the same in warde by force of this pre­rogatiue, & that appeareth in. 9. H. 4. So likewise wher the statute made in 4. H. 7.T. 9. H. 4. f. 5 prouidethe that the heire cesty que vse shall bee in warde. Put case that the kynges tenaunte in capite before the statute in Anno. 27. H. 8. had made a fer­fement of lands which he holdethe of a common per [...]one to the vse of hymselfe & his heires and died before that statute, [Page] in this case the kinge shoulde haue hadde his prerogatiue in the Landes so beynge put in feoffament to an vse euen as if his tenaunt had died seased thereof,T. 12. H. 7. fo 17. as it appearethe 12. H 7. Than last of all let vs learne howe the lordes whose fees the kynge hathe in warde by his prerogatiue shal be demeaned and ordered for the rentes to be dewe for their seigno­ries duringe the wardshippe whether they shall leese them as they do the landes.29. lib. ass, in fits, ti. Petic p. 5. P. 24. E. 3 f. [...] and the new natura breuium fo. 179. And it appeareth in the booke of assi­ses in. 29. E. 3. that they had them by peticion at the Kynges hands, & therwith agreeth thoppinion of Hill' in the .24. yere of kyng E. 3. Learne the reason of these bokes, for it should seme to me the lawe to be otherwise, because that al mesne seignories are suspended duringe the time the kyng hathe the tenauncye in warde, if it bee not per case for the surplu­sage of a rent seruice whiche the mesne maye sue for to the kynge by waye of peticion: and to saye that the heire shalbe charged at his full age withe the sayde rentes it weare noe reason, for then bothe his lande shoulde bee in warde, and yet he charged to pay rent for the same: wherefore it semeth that these bokes are against the law. And with me agreeth Bracton in his first boke in the chapiter de custodia where he saieth, Et cum tali ratione sint aliorum feoda in manu do mini regis pred' ratione alij capitales domini feod' illorum ni hil poterint exigere de terris et ten̄tis illis nec in seruic' nomi nat' nec in auxiliis ad filiam maritandam vel filium primoge nit' militem faciēdū vel in sectis quādiu terre fuerunt in ma­nu domini regis, sed precipiet' vic' qd' hm̄odi distringere non permittat. Howebeit Bracton in his said booke in the chapi­ter, De releuijs saieth, that the heire at his full age shall pay his reliefe to euerie of his lordes notwithstanding he hathe ben in warde, quod nota: for in al other cases he neuer pai­ethe reliefe that is to saye where he hathe bene in ward, and hee makethe no other reason for it butte this. s. quod hoc [Page 10] est speciale in rege propter suum priuilegium: and so is the booke in the .24.M. 39. E. 3. in Fits ti. Relief P. 1. Britton f. 163. yeare of kynge Edwarde the thyrde and the .39. yeare of the same kynge, howebeit Brittons oppinion is that the heire shall paye noe reliefe to the other lordes af­ter hee hathe beene in the kynges warde, and commethe to his full age, and I cannot fynde that the heire in anye suche case shoulde or doothe paye anye reliefe to the kynge that is to saye where hee hathe beene in warde: therefore learn what experience teacheth vs in these cases.

The seconde chapiter.

ITem Rex habebit maritagium hered' infra etatē & in cus­todia sua existen̄ siue terre hered' eorundem sint ab anti­quo de corona siue de eschaetis quae sunt in manu domini Regis siue habuerit maritagium ratione custod' terrarum dn̄orum eorundem hered' nullo habito respectu ad prior' fe­offamenti licet de alijs tenuerunt. Bracton li. 1. ti. de herede sockman in cuius custo­dia esse debe at. Brittō f. 163 M. 24. E. 3. f. 24. H. 12. H. 4. in fits. ti. Gard. P. 81.

All that is contayned in this Chapiter was the kynges prerogatiue by the order of the common lawe, as it maye ap­peare in the bokes of Bracton and Britton in the places be­fore noted, and in a boke in the 24. yeare of kyng Edward the thyrde where it is sayde that no lorde can be more aun­cienter than the kynge, for all was in hym and came from hym at the begynninge. And therefore his highnesse muste haue prerogatiue in the bodye of whosoeuer the infaunte holdeth besides, bee it that the landes are holden of the kyn­ges highnes as of the auncientnes of his Corone or of hys newe escheates, or come vnto hym as warde by reason of wardshippe, or that his highnesse doe pourchace the seigno­rie of hym that is lorde by posterioritie, or pourchaseth a manor holden of one of his honors, whiche are of his newe es­chetes, of whiche maner thauncester of thinfaunt helde by posterioritie: in all these cases the kynge shallbee preferred [Page] to the wardeshippe of the bodye and mariage beefore anye other lorde of whom the auncester also helde them daye of his death by priority of feffement, that is to saye, more aun­cient feoffement: howe be it in these cases hys highenesse shall not haue wardeshippe in the landes holden of thother lordes, beecause his tenaunte helde not of hym in ch [...]efe, but onelye shall haue preferrement in the body and mariage beefore all other. Then since the common lawe and statute dothe geue the kinge this prerogatiue, let vs see whether his highnesse maye by grauntinge away his seig­norie to an other, graunt also with the same his prerogati­ue to the grauntee, that is to saye, wheather his grauntee shall haue the same prerogatiue in the bodye of the chylde as his highnes mighte haue hadde,M. 12. E. 3. in Fits. ti. Pre­roga. p. 25. et M, 14. H 4 in Fits. ti. Garde P. 86. in case the seignorie had styll continued in hym. And it appearethe in the .12. E. 3. & .14. H. 4. that if the kynge graunt the seignorye to an o­ther in fee simple that the grauntee shall haue noe preroga­tiue, beecause there remaynethe nothynge in the kynge of that seignorie vngraunted. But if the graunt weare made to a common persone for noe longer tyme then duryng his lyfe, and the reuersion saued to the kinge, then learn what the lawe will in that case,H. 5. E. 3. in. Fits, ti. prerogatiue. P. 20. for wee haue in .5. Edwarde the third that wheare the graunt was made to the Queene for terme of her lyfe the reuersion in the kinge that her grace hadde prerogatyue euen as the kynge hymselfe shoulde ha­ue hadde, and for none other reason there made but onely beecause shee helde in ryghte of the kynge. But a man may adde further to that reason and saye that her grace & a common persone bee not lyke, for thoughe shee bee a per­sone exempte from the kynge and maye sue and bee sued in her owne name, yet that that shee hathe is the kynges, and looke what shee losethe so muche departe the from the king, [Page 11] and therefore all her tenauntes of parcell of her estate maye haue ayde immedyatlye of the kynge wytheoute makynge her partye or pryuye theruntoo, and so shee hol­dethe merelye in the kynges ryghte: but a common per­sone doothe not so. For the kynge hathe nothynge soo doe wythe the thynge that hee holdethe durynge the lyfe of the lessee, howebeeit yf the graunt bee made to the Quee­ne for terme of her lyfe the remaynder ouer in fer [...] yt seemethe that her grace gettethe no prerogatyue,M. 24. E. 3. f. 34. and so yt is sayde in .24. Edwarde the thirde. Lyke lawe is it if the kynge graunt an honor to the Lorde prince and hys heires kynges of Englande,M. 21. E. 3. f. 4 [...]. it seemethe by the better oppinion in 21: Ed. 3. that the Lorde prynce shall haue there wythe the kynges prerogatiue, beecause it is not seuered from the crowne after the fourme as it is geeuen, for none shallbee inherytoure thereof but kynges of this realme. And note well that notwythstandynge the lawe weare so that none in thys case but the Queene or prynce myghte haue the kinges prerogatiue, yet if the kyng hauinge the seignorye in hys handes after that the warde dothe falle. graunt the same warde ouer, the grauntee shall haue and enioye the preferrement of the maryage agaynste the other Lordes euen as the kynge shoulde hymselfe, beecause that not­wythstandynge anye suche graunt, yet the kynge is sayde styll gardeyne and the infaunt dryuen to sue for hys lyue­rye at the kynges handes whenne hee commethe to hys full age, and not at the handes of the grauntee,A. 13. H. 4. in Fits. ti. prerogatiue. P. 24 whyche in this case is but onelye as a commyttee. And so is the booke in. 13. H. 4. Lyke lawe is it in the case aboue remembred wheare the Queene hathe prerogatiue and the war­de fallethe and shee grauntethe her wardeshyppe ouer, her grauntee shall haue preferrement in the mariage be­fore all other lords. And ye also appeareth in the sayd. 5. E. 3 [Page] howebeit that case was enforced by that yt the kynge con­firmed the state of the grauntee,H. 5. E. 3. in Fits ti. Pre­roga. p. 20. lyke lawe is it yf the kyng haue a warde of righte of his corone, and graunteth it ouer with special wordes that is to say, yt the sayd grauntee shal allso haue warde by reason of wardeshippe yf it fall du­rynge the mynoritie of the firste warde, in this case if there fall a warde whyche holdethe by posterioritye of the heyre that is in warde, yet that notwythstandynge the said graū tee shall haue the preferment in the warde of the body and mariage, eeuen as the kynge hymselfe shoulde haue hadde yf hee had made noe suche graunt, beecause it is merely in the kynges righte whyche remaynethe styll lorde, and the grauntee none other but as it weare hys comyttee:H. 12. H. 4. in Fits. ti. Gard P. 81. and thys appearethe also in the. 12. yeare of kynge Henry the fowerthe.

The thyrde chapiter.

ITem Rex habebit seisinam post mortem eorum qui de eo tenent in capite de omnibus terris et tenementis de quibus ipsi fuerunt seisiti in dominico suo vt de feodo cuiuscunque etatis heredes eorum fuerint, capiend' exitus eorundem ter­rarum & tenementorum donec facta fuerit inquisitio prout moris est, et ceperit homagium huiusmodi hered'.

In the .52. yeare of kynge Henry the thirde longe time bee­fore the wakynge hereof was there an other statute made at Marlebridge concerning this matter: In the .16. chapiter whereof it is thus prouyded. De hereditate autem que de dn̄o rege tenetur in capite sic obseruād' est, vt dominus Rex primam habeat inde seisinam sicut prius inde habere consue uit, nec heres nec alius in hereditatem illam se intrudat, pri­usquam illam de manibus domini regis recipiet prout huius­modi hereditas de manibus ipsius et antecessorum suorum [Page 12] recipi consueuerit, et hoc intelligatur de terris feodis que ra­tione seruicij militaris, socagij, vel seriantiae, siue iure patrona­tus, in manibus domini regis esse confueuerunt. Both these statutes declare themselfes to bee of none other force then as a confirmation of that, that was the kynges prerogatiue by the order of the comon lawe, as it may appeare by these wordes, prout moris est, sicut prius habere consueuit, recipi consueuerit, esse consueuerunt. And therewyth agreeth also Britton. fo. 167 The woordes of the statute bee, Rex habebit primam seisinam, what prima seisna is, it is declared by the words that follow. s̄. capiendo omnes exitus &c. by whiche words it may appeare ye kynge shal not onelye seise, but al­so receaue the hole profites tyll lyuerye bee sued, which suit moste commonlye hathe bene and is within the yeare and daye nexte after the deathe of his tenaunt, and therefore the kynge vsethe to take no more then the firste fruites, that is to saye one yeares profites if there bee not apparaunt de­faulte in the heire that hee will not sue hys lyuerie, in whi­che case then the kynges highnesse shallbee aunswered of all the profytes taken tyll lyuerye be sued, or at the least tended and after pursued withe effecte, yea and if it bee a gene­rall lyuerie and not ryghtefullye pursued accordinge to the order of the lawe, the kynge shall reseise and bee aunswe­red of all the meane profites from tyme of suyng of the sayd lyuerye, for when the lyuerie is missued it is as it had beene neuer sued. Howebeit thys reseisure shall not bee wythe­oute a Scire facias, as I shall thereof speake more at large hereafter. But yf ye heyre or he yt should sue lyuerie doe ma­ke a rightfull suite for the same according to thorder of the lawe, and asmuche as in hym lyethe to do to haue liuerye, howebeeit the kynge will not but willbee aduised ere hee make hym lyuerie, and so protracte the time, in this case his highenesse of ryghte maye not haue the profites from the [Page] tyme the partye was thus delayed, but ought to restore thē vnto the partye vppon his lyuerye, as maye appeare in the firste yeare of Henrye the seuenthe.H. 1. H. 7. in Fits. ti. Liue­ry P. 18. And thereuppon it is to be noted that there be two kynde of lyueries, the one ge­nerall, the other speciall. The generall is the liuerye that this statut speketh of, ye especial may be more properly trea­ted of when wee come to the 12. chapiter of this prerogatiue. And this generall lyuerie is sometime made cum exitibus, and sometimes sine exitibus, but for the most parte sine exi­tibus: for wheare it is made cum exitibus, from the time of the seisure, there it is properlye noe liuerye, for it appea­rethe the kynge neuer seised rightfully or by anye title. As for example, if the kynge will seise the lande that is founde in thoffice to be holden of Tharchebyshoppe of Canterbu­rye, or Byshoppe of Durham, or anye suche persones as are exempted in the first chapiter of this prerogatiue, in this case they shal haue an Ouster le main vna cum exitibus, H. 16. E. 3. in Fits. ti. Liue­re. P. 29 as it ap­pearethe in 16. E. 3. The same lawe is it yf of landes holden in capite there be a lease made for terme of lyfe, the remainder ouer to estraunger,14. H. 4. f. 34 18. E. 3. f. 21. 24. E. 3. f. 27. tenaunt for terme of lyfe dy [...]th, and this matter founde by office, nowe if the kynge seise, hee in the remainder shall haue an Ouster le main vna cum exiti­bus, as it appearethe in. 14. H. 4. 18 E. 3. &. 24. Edwarde the thirde. Like law it is where .ij. hold iointly of the king, & the one dyethe, and this matter founde by office, and yet that notwithstandynge the kynge seises, hee that suruiues shall haue an Ouster le mayn vna cum exitibus, as it appearethe in the boke of Assises 44.44. li. ass. in Fits. ti. Liue­re. P. 11. T. 45. E. 3. f. 18. E. 3. and in the newe Natura bre­uium fo. 2 [...]. &. f. 257. For in all these cases where the Ouster le maine is vna cum exitibus the king ought not to haue sei­seised, and so sayethe Thorp 45. E. 3. The words of the sta­tute be further, Post mortem eorum qui de eo tenent Vpō this: it is to bee sene at what time after the kynges tenants [Page 13] deathe this lyuerie shallbe sued. If the possession of the free holde immediatlye after the deathe of the kynges tenaunte discende vnto his heire it is to bee sued fourthwithe, and yf but onelye a reuercion discende, then it is not to be sued tyl after the death of the particular tenaunt, as it may appeare in the newe Natura breuium f. 291. where the heire sued not lyuerie tyll after the deathe of the tenaunt by the curtesye, tenaunt in dower, and tenaunt for terme of lyfe. But lear­ne what the lawe shoulde haue beene if the kynges tenant hadde dyed seised of a reuersion whereupon rent had beene reserued, hys heire of full age, whether hee should haue thē sued liuerie fourthwith, or els to haue taried tyll the deathe of the particuler tenaunt for in the seuenthe yeare of kyng Henrye the sixte Iune thinks he should tary or els it might followe the kynge should haue double lyuerie that is to say one for the rent an other for the lande,M. 7. H. 6. f. 3 but Paston is in con­trarye opinion, and resembles it to a reuersion dependyng vpon an estate tayle with a rent reserued, howebeit at this daye there is election geuen vnto the heire, that is to say ey­ther to sue his liuerie immediatly after the deathe of his aū ­cester in the lyfe of these particuler tenaunts, or els to tarye vntill they die, and if he sue his lyuerie in theire lyfe he pai­ethe for primer seisin but the moytie of one yeares profyte, & yf after theire deathe then he payethe the hole yeares profit, howebeit if there be a rent reserued & he pursueth his liue­ry in the lyfe of the particular tenaunt, it seemes besides ye halfe yeres profit of ye value of the land he shal also paye ye hole yeares profit of the rent reserued, therfore learn what common experience teacheth vs in that case. The woordes of the statut be, Qui de eo tenent in capite. By these words he must holde of the kinge in chiefe, for yf he holde not of hym in chiefe the kynge can haue noe primer seisin. And yet you shal see in the newe Natura breuium folio. 296. that of lands in the citie of Lōdon holden of the king in burgage [Page] the king had primer seisin, & the heire thereof sued his liuery but that president semes to bee against the lawe, for Mark­ham saiethe in 7. E. 4. yt in Neuels case it was founde that ones father died seised of certain lande that hee helde of the kyng in Burgage,T. 7. E. 4. f. 9 and thereupon thexchetor did seise, whi­che seiser by thaduise of all the Iustices was discharged by a Supersedeas awarded to thexchetor, for the wordes of bo­the the foresayde statutes be verye plaine therein, that is to saye that hee must holde of the kynge in capite, but whether he holde of the kyng by knights seruice or by Socage in ca­pite it makethe noe matter so that he holde in capite, for the kinge in bothe cases shall haue primer seisin althoughe not wyth so large a prerogatiue in thone case as in ye other. For in the firste case where the tenure is knyghtes seruyce in capite the kynge shall haue the same prerogatiue when the heire is of full age at the deathe of his aūcester as he should haue hadde yf hee hadde beene wythin age, that is to saye primer seisin aswell in the landes holden of others as of hym selfe, bee it that the landes holden of other bee holden by knyghtes seruice or in Socage. But otherwyse yt ys where the tenure is but a tenure by Socage in capite, for there the kynge shall haue noe primer seisin in landes hol­den of other, namelye if theye be holden of other by knygh­tes seruice, as it appearethe plainlye by the statute of Mag­na charta capit. 27. and in the newe Natura breuium fo. 2 [...]. nor yet anye primier seisin of landes holden of hymselfe in Socage in capite▪ If the heyre at the deathe of his aunces­ter bee not of the age of.35. H. 6. f. 47. T. 45. E. 3. fo 1 [...]. 14. yeares, as appearethe, 35 H. 6. & 45. Edwarde the third and allso in the newe Natura bre­uium fol. 2 [...]6. & fol. 2 [...]. But in euerye of these cases theye to whom the bodye belongeth shall haue an Ouster le main of the landes vna cum exitibus that ys to saye the lordes of whom the land is so holdē by knights seruice in thone case, [Page 14] and the Prochein amy in the other case. But wher the lan­des bee holden of the kynge in Socage in capite, & the heire of the age of 14. yeares at the deathe of his auncester, there the kyng shal haue primier seisin and the heir̄ dryuen to sue lyuerie, for there is no persone that can make anye title to the heire or his landes but onelye the kynge, and therefore the king must haue his primier seisin, & the heire driuē to sue his liuerie by expresse woords of the foresaid statut of Mar­lebridge, & so it seemeth also in that case yt his highnes shall haue primier seisin in landes holden of other, so they be hol­den but in Socage, for the reasō aboue remembred, Tamen quere. The woordes of the statute bee farther, de omnibus terris et tenementis de quibus ipsi seisiti fuerunt in domi­nico suo vt de feodo. These wordes may bee conferred and coupled with the firste chapiter of this statute of prerogati­ue whiche hath the verye selfe same wordes. And therefore looke in what cases noted vppon the firste chapiter the king hath his prerogatiue by reason of wardship, In al the same cases shall his highnes haue prerogatiue by reason of pri­mer seisin if the heire weare of full age at the deathe of his auncester. Wherfore to reherce thē here particularly it we­re but superfluous, except it bee in the case onely of collusi­on geuen by the statute of Marlebridge where the heyre is within age, beecause it speaketh nothinge of the heire that is of full age. And therefore in that case it seemes the kyng cannot haue lyke benefyte of primier seisin as hee hathe of wardeshippe, when the heire is wythein age. Howebeeit there is a booke in that pointe lefte at large whiche is 17. E. 3. & 7. E. 3. & there the case was.M. 17. E. 3. f. 63. M. 7. E. 3. in Fits. ti. Re­lief. p. 11. The tenaunte enfef­fed his sonne and heire & dyeth before the feffee gaue notice thereof to the lorde. Ideo quere. The woords of the statut be farther, Cuiuscunque etatis heredes ipsorum fuerint. To these woordes also shall the firste chapiter of this estatute [Page] haue relacion, for they plainly declare that if the heire were within age at the deathe of his auncester, the kyng shal ha­ue primer seisin and the heire driuen to sue his lyuerie, not­withstandinge also the kynge haue had the wardshippe of hym. For the wordes be generally spoken and maye be ex­tended aswell where hee was within age at the deathe of his auncester, as where hee was of full age. And so hathe it beene euer vsed, sauinge that where hee hath been in ward hee payethe but one halfe yeares profite for primer seisin, and in the other case hee payethe the hole. The woordes of the statute bee farther, capiendo omnes exitus eorundem terrarum & tenementorum, donec facta fuerit inquisitio pro ut moris est et ceperit homagium hered'. By these woordes it maye appeare that the kynge after the deathe of hys te­naunte and beefore anye office founde, mighte seise the lan­des and take the profites, whiche thinge surelye is true, as plainelye is proued by the writte of Diem clausit extremum whiche hath these woords Cape in manum nostram omnia terras & tenementa &c. donec aliud inde perceperimus & per sacrum proborum hominum diligenter inquiras &c. So the seiser goethe before the inquisition, howebeit since the statut made at Lincolne Anno. 29. E. 1 called statutū de Es­caetoribus it is not vsed to seise tyll office bee founde, and then the kyng to bee aunswered of all the profites since hys tenaunts decease, whiche commethe all to one effecte. And that statute dothe not restrayne the seiser, but that thercheator maye seise at this daye withoute office. By the aforesaid statute of Marlebridge cap. 16. it is expounded and playne­lye set foorthe of what lands and fees the kynge shall haue primer seisin, for these bee the woordes. Et hoc intelligatur de terris & feodis que ratione seruicij militaris, socagij, vel seriāciae, sine iure patronatus, in manibus domini regis esse cō ­sueuerunt. By these woordes it maye appeare that he that [Page 15] is warde beecause of wardeshyppe shall sue lyuerye, or where one holdethe of the kynges warde by knyghtes ser­uice or in Socage and dyethe hys heire of full age, the king shall haue primer seisin of the landes, that are so holden of hys warde, and the sayde seconde heire dryuen to doe hys homage or fealtye as the case shall require to the kynge, and allso to paye hys reliefe vnto hym, and to sue lyuerye of the sayde landes as it appearethe hee dyd in the newe Natura breuium fol. 294. & 295. For it is withein the com­pas of these woordes, que ratione seruitij militaris. So ys it yf the kynge haue a Byshoppes temporalties in his hands duryng the time that See is vacant, and one that holdeth of that temporalties by knyghtes seruice or in Socage dyethe hys heire wythein age, in this case, after that the kynge hathe hadde the wardeshippe, the heire at his full age shal paye primer seisin and sue hys liuerye. And so shall he doe yf hee bee of full age at the tyme of the death of hys aunces­ter, for the woordes of the statute bee, De feodis quae iure patronatus in manibus domini regis esse consueuer', and ther­withe agreethe the newe Natura breuium folio. 286. Butte learne yf the kings tenant in chiefe dye, hys heire of full age and one that holdethe of the heire beefore hee hathe sued his lyuerie dyethe, his heire allso beeynge of full age, whether in thys case the kynge shall haue primer seisin of the lan­des of the seconde heire or noe, as hee shoulde haue hadde yf the heire of his tenaunte hadde beene wythein age, and in the kynges warde at the time when this seconde heire dyd falle, and it seemethe to mee hee shall, for the rea­son made afore. Thanne laste of all whether this prero­gatiue extende to anye statute made since the tyme of kynge Ed. 2. and it seemes it dothe, and that for the rea­son noted in ye first chapiter, as the feffees of Cestuy que vse, [Page] before the statut made in ye .27. yere of kyng H. 8. vsed to sue an Ouster le mayn sine exitibus, whiche was in nature of a lyuere for ye heire of cestuy que vse which had bene inward. Item for asmuche as there be exceptions in the firste cha­piter and none in this, whether theye also bee comprised within this chapiter or not: and me seemes theye bee, bee­cause these .ii. chapiters muste concurre together and agree in euerye thynge. And yf the heire bee within age at the deathe of his auncester, the Archebyshoppe of Caunterbu­rye shall haue an Ouster le mayn vna cum exitibus, so that the heyre shall not sue lyuere of that, & then by the same rea­son yf hee be of full age at time of the deathe of his aunces­ter, for the lyuere in thone case and thother is geuen by this chapiter as me semethe, Tamen quere.

The fowerth chapiter.

ITem assignabit viduis post mortem virorum suorum qui de eo tenuerint in capite dotem suam quae eas contingit &c. licet heredes fuerint plenae etatis si viduae ille volue­rint, & viduae illae ante assignationem dotis suae predictae siue heredes plenae etatis fuerint siue infra etatem iurabunt qd' se non maritabunt sine licencia regis. Et si se maritauerint sine licentia regis tunc rex capiet in manum suam nomine districtionis omnes terras et tenementa quae de eo tenentur in dotem donec satisfecerint ad voluntatem suam ita qd' ipsa mulier nihil capiet de exit' &c. quia per huiusmodi districti­ones huiusmodi mulieres seu viri eorum finem faciant regi ad voluntatem suam, et illa voluntas tempore regis H. pa­tris regis E. estimari consueuit ad valenc. predictae dotis per vnum annū ad plus nisi vberiorem gratiam habuerint. Muli­eres quae de rege tenent in capite aliquā hereditatē iurabunt similiter cuiuscunque fuerint etatis quod se non maritabunt [Page 16] sine licentia regis, et si fecerint terre et tenementa ipsar [...]m eodem modo capiātur in manū domini regis quousque sa­tisfecerint ad voluntatem regis.

This statute lykewise doth but confirme the comō lawe before as it appereth by ye statut of Magna carta ca. 7. which was first made in the tyme of kynge H. the third, which is, qd' nulla vidua distrīgatur ad se maritādū, ita tamē, qd' secu­ritatē faciet qd' se nō maritabit sine assēsu nostro, si de nobis tenuerint. And also in the 24. yere of the sayd kynge henry ye third, it is sayd, that whē the kynges tenāt dieth & his wyfe endowed, shee cannot marie without the kynges licence, & yf shee doe, she & her husband shall make fine. Thexposiciō. It should apere by the wordes yt the wiefes of al them that hold in Capite can not haue dower at ani mans hands but onelie the kinges if his grace will, for in yt his grace hath a prerogatiue aboue al comō ꝑsōs aswell for yt she shall the r [...] ­bie hold of his highnes in chief as for that she shall not ma­rie wt out license: for so she might be maried vnto the kinges enemie, and there bie ye strēgth of ye crowne enfebled. Ther­fore it is prouided that his highnes may assigne the dower whether the heir be of full age or within age, to thentent that she before ye receuing therof shall take a corporall othe not to marie without the kings licēse. The maner of the as­signement whether the heyre be of full age or within age is verie wel sette foorth in the new Natura breuiū fo. 2 [...]. in the writ de dote assignanda. Howbeit for yt sōe things are there noted which seme to repunge wt our booke cases, I purpose to confer the one with thother and se how thei can agre. In the said Natura breuiū it apereth that not withstanding the king had comitted the land ouer to an other, yet the womā sued in the Chācere to the king for her dower and not to ye cōmittee, & in our bookes you shall se many writs brought against ye comittee, yea & in some of them that she recouered her dower and the king not made partie to the same, as the [Page] boke is in 4. H. 7. where the writ of Dower was brought against ye kings cōmittee,H. 4. h. 7. fitz ti. Eyde de Roy. P. 33. who pleded in barre without praiyng in eid of the king, & the barre was found against him, and notwithstanding that it did apere vnto the Iustices that the king might be touched therby, yet would they not surcesse, but awarded that the demandant should recouer▪ & toke for their cause the statute of Bigamis the third chapter which saieth in this maner. De dotibus mulierum vbi aliqui custodes hereditatis maritorum suorum custodias habent ex dono vel concessione regis, Siue custodes rem petitam tene­ant Siue heredes dictorum tenementorū vocentur ad vvarrantū si excipiant quod sine rege respondere non possint, nō ideo Suꝑsedeatur quin in loquela predicta prout iustum fu­erit procedatur. This Natura breuium and this boke of .4. H. 7. seme not to agre. For where takes she anie oth wher she recouers by a writ of dower in the comon place? which othe she must nedes haue taken if she had sued in the chauncerie, or howe maie the committee endowe her, when percase he will endowe her of more then she ought to haue or endowe her wher she is not dowable by the law? wher­unto one maie aunswer in this wise, that his wrongful en­dowment shall not conclude the king, but ye his grace maie refourme the thing when he wil, and sins he hath cōmitted all his interest ouer Durante minore etate, his grace maie permitte thendowment made by the comittee yf it be right­fullie made to stand: and speciallie because of the statute of Bigamis which alowes it so to be. And notwithstanding she take no othe, yet can she not marie without the kinges li­cense, for this endowmēt by ye comittee is the kings endowment vpon the matter, for ye that she holdeth in right of the king which continues still garden notwtstanding any such comissiō or grāt made of the wardship. Therfore yt shoulde seme ye after the ward comitted ouer (as is aforsaid) it is at the elecciō of the woman whether she will sue to the king in the chaunceri or at the comon law against the comittee: But if the king do but comit the ward ouer Durante bene [Page 17] placito otherwise it is, for there she must sue onely to the kinge, as apereth. 8. E. 2.Fitz Tit. Dovver. P 169. And note well that this statute of Bigamis before recited will also that if the heir of ye husband be vouched to warrantie beinge in the custodie of those com­mittees yt the Iustices shall not surcesse nomore then when the writ of dower is brought against the comittee. Cōtrarie to this braunche of ye said statut are there diuers bokes, as 18. E. 3. & 8. E. 3. &. 19. E. 3. wher the said comittee came in,18. E. 3. fo. 38. H. 8. E. 3. in Fitz ti. Vou­cher. P. 154. H. 19. E. 3. in Fitz Tit. Aid de Roy. 64. the heir being vouched in their ward & showed how they held of the kinges lease & praid in aid of the king & had it: wherat I do not a litle meruel because of this statute of Bigamis which was neuer spokē of ne yet remembred in these bokes, their iudgemēts as it should seme beinge directlie against this statute. Howbeit ye maner of the lease doth not there certenlye apere, yt is to saie, whether ye wardship were granted Durante bene placito or Durante minore etate, for yt would make a differēce as I haue said before. Also the boke is. 39.39. E. 3. fo. 10 E 3. where in a writ of Dovver brought against ye comittee ther was aid grāted of ye king, but yt semes to be out of ye compas of ye statute of Bigamis which spekes onelie of thē ye haue it of ye kinges grāt, & so hath not the secōd Comittee, therfore lerne what ye law will in these cases. But if ye wardship be comitted to ye wife wtout anie exception or forprise of her dower, she by yt is cōcluded to claime ani dower during ye said wardship, as it may apere M. 2. H. 4▪ in ye said new Natura breuium. fo, 2 [...]. It is also said yt where liuerie is made to ye heier before the womā sue for her dower in the chācerie, & in the said liuerie there is no sauing made for her dower, yt thē she must pursue her writ of Dovver against the heir: & the reson yt there made is, beecause the king hath made liuerie generally wtout ani reseruacion of Dower to be assigned by his highnes: whereunto I aunswer, yt whē liuerie is sued before assignemēt of dower, there is moste comōlie in ye writs of liuerie a sauinge made for her dower if it so be yt she were found the kings tenantes wife in thoffice, and she beinge [Page] so founde if the heyr sue a general liuerye leuing out these wordes Salua dote or retenta dote &c. it is a good cause for ye kinge to resese the hole, for ye liuerie is missued in that case, and that I learned of iustice Spilman which noted it so in .11. of H. 8. but if she be not found wife in the office, the heire may sue his liuerie without anie such sauinge and to saie ye the kinge by making such a liuerie should waiue the aduan­tage of his prerogatife in the dower: that semes not to bee trew vnles the said waiuer were by expres wordes, wher­fore it semes the heir in that case after liuerie is not bound to yeld vnto her dower, but her onlie remedie is to sue for ye same to the king, and that must be fyrst vpon an office (as I think) finding that she was his tenantes wife, Ideo quere, and learne whether she may haue dower in any case either in the chancerie or by writ of Dower at the comen lawe a­gainst the cōmittee or the heire, vnles she be found wife first by office as is aforesaid, except it be in cases where the king will refuse this prerogatife. And note that like as the kinge hath a prerogatife by this statute to yeld dower to the wife of his tenant, so hath his highnes a prerogatife by the comō law to withold dower from the wife of his tenant, which no comon person hath. As put case in a write of Dower the heir be vouched in the kinges warde, and the tenāt showes for his lien the feffement with warranty of the husbande which is father to him that is vouched, yet that notwithstā ding she shall recouer her dower against the tenant and not against the heir, because yt els the king should lose ye wardship of the lands wher the womā maie (without her losse) as well recouer her demaund against the tenaunt as she should against the kinge, and yet if the king were a comon person in that case he should lose the wardship of so much as she de­maundethe.26. E. 3. fol. 58▪ H. 8. E. 3. ī Fits ti. Vou­cher P. 154. And this boke is .26. E. 3. wher it is said that the kinges comittee of the wardship shall not haue ye preroga­tife, & therewt agrees. 8. E. 3. And note yt like as ye king hath [Page 18] prerogatife against the wife that bringeth the writ of Do­vver, so shall he haue prerogatife against the tenaunt in the saide writt of Dovver: for notwithstanding that the te­nant in ye self sāe case haue iudgemē, to recouer ouer in va­lue, against the heire which is in the kinges ward, yet he shal haue no execucion of that recouerie til the land be sued out of the kinges handes. Howbeit 27. E. 3.27. E. 3. fo. 87 is con­trarie to the said boke of 26. E. 3. ideo quere. And learne and enquire whether a womā being thus endowed at the hāds of the feffee of her husband of such lands as he died not sesed of and wherof the king at that time can haue no wardship, whether she maye marie or not without the kings license, & it semes she can not for anie wordes comprised within this statute. And it apereth in the boke of Assises. 26. E. 3.26. li. Ass. P. 57 that wher a woman was endowed by gardein in chiualrye and afterwards the garden committed treson wherbie the seig­norie was forfet to the kinge, that after this forfeiture she should hold of the kinge and not of the heir which was in the reuersion, in which case then she can not mary without licence as me thinketh. Thē further, it is to be sene to what lands the statute dothe extend vnto and to what not. It ex­tendes to landes holden in capite wherof any woman clay­meth dower, as maie apere by the wordes of the sāe statute and not to anie other lands, for if the king haue in his custo­die byshops temporalties during the tyme the Sea is va­cant, and one that holdeth of those temporalties by knightes seruice dieth his heir being within age, whereby the kinge hath the wardship of his heir and ēdoweth his wife, in this case she shall make no othe but maie marie without licēse. Like lawe is it wher she is endowed of lands that are holdē of him that is the kings highnes ward by reason of a tenure in Capite, for in both these cases the land wherof do­wer is demaunded are not holdē of the kinge in cheefe, and this doth apere in the newe Natura breuium fo. 264. and yet in both those cases she is endowed in the chauncerie, but [Page] what is that to the purpose? for so shall the heire in those ca­ses sue liuerie of those lands, and yet thei be neuer the more for ye holden in chief, but onely vsed for a solempnity becaus thei were in ye kings hands once by office, which is matter of record. The wordes of the statute be further. Et si se maritauerint sine licentia regis tunc rex capiet in manū suā no­mine districtionis ōnes terras et ten̄ta quae de eo tenēt in dotē &c. These words be knit in a copulatife to ye former wordes contained wtin this chapter, that is to saie, wher she hath demāded dower and is sworne not to marie, but yf she will neuer demaūd dower of ye lands holden in Capite she may marie wher she wil: for the wordes of the statute be quod assignabit viduis dotem, si vidue illi voluerint, & so thinkes Iustice Fitzherbert in his Natura breuium fo. 17 [...]. How be it by the boke in .40.40. Li. Ass. in Fitz ti. gard 40. r. libro. Ass. it apereth that the wife neuer demaunded dower and yet had alowance of it and did marie also wtout license and yet paied no fine, & therfore the case was: The kings tenant in taile in chiefe made a feffe­ment by licence and toke estate again to him & to his wife and died, the wife takes an other husband and dies, after whose deth the auncient estate taile being found by office, the license was holden void because the king was disc [...]ued therin, and the second baron driuen to aunswere for ye mene profets of ii. partes of ye lād but not for ye third part, because she was endowable. quod nota. A womā tenant in dower of no mans assignement, & some there thought she should forfet her dower because she was partie to ye disceit. Howebeit this case semeth not to be properlye wtin ye cōpas of this statute. Also Fitzherbert in the said Natura breuiū thinketh that wher the king hath vsed to graunt to other ye mariage of his widowes that a composicion wt the grantee made for the same (whether it be made by ye wife or the husbād) is as good as if it were made wt the kinge, yet can not ye grātee in such case compell her to marie, for ye should be contrarie to ye statute of Magna carta cap. 7. which wil ye she shal not bee constrained to mary by distres, but if she will she maie liue [Page 19] sole. Howbeit at this daye by the statute of .32. H. 8. cap. 46. the composicion is geuen to the master of ye kings wardes & liueries wt iii. of ye coūcel of ye said court. And likewise auc­thoritie is geuen to thē wher ye kinges widowes mary thē selues wtout license to tax a resonable fyne by their discreci­ōs acording to ye statute of prerog. regis which statute plain­lie setteth furth what hath bene vsed to be doon in such ca­ses, yt is to saie, the value of her dower by one yere, & therwt agrees the new Natura breuiū. fo 174. And for ye fine ye king shall sease all the lands & tenemēts so holden in dower as it aperes by ye letter of ye statute. How beit the Register geueth yt the king may sese aswell the land of the husband as of the wife, because ye mariage is a wrong doon to the kinge but the statute is cōtrarie to yt, & therfore Fitzherbert in the said Natura breuiū. fo. 1 [...]. thinkes it to be no lawe: For as wel might the lands yt the woman hath of her inheritāce be thē sesed, wherfore no other land ought to be sesid then yt she holdeth in dower, as it aperes in ye said Natura breuium. fo. 2 [...]. And lerne whether ye womā obtaining dower at ye hāds of the comittee or of the heire of lands holden in capite with­out making any othe may marie or not without licēse, & as me semeth she can not, for as sone as she is ēdowed of those lāds she is ye kings tenant & not tenāt to ye heir which is in ye reuerciō: for if a trespas be done vpō the land, she shall haue a writ out of the chācerie ye one such hath entred vpon the kinges possessiō & the auowrie to be made by the king res­teth onlie vpō her, & so is the opiniō of vvood in .1. H. 7. And yet the reuerciō is in ye heier onlie, for if she do wast,1. H. 7. fol, 3. ye heier shall ponish her for it & not the kinge. Thē further, let vs se of what force this dower is whē it is made in the chācery, & how she shalbe admesured in ye sāe if it be to grete, for if it be to litle ther is no remedie for her but to stād to her owne harmes if she in ye chācerie once did accept it, not forcīg whether she were thē wtin age or of ful age, as it maie apere in.18. E. 3. 29. 18 E. 3. The dowment in the chauncerie is of this force, that whether it be by right or by wrong it can not be defeted by waie of plea without a sute made in the chauncerie for the [Page] defeting therof,17. E. 3. f. 71. M. 31. E. 3 in Fitz. ti. Do­vver. P. 128. as it apereth ī, ye .17. & .31. E. 3. And therfore in a verie strong case one doth trauerse the office which is in the chancerie by reason the land is holden of him by knightes seruice and not of the king, and hath an ouster le main vna cū exitibus: yet if she were endowed before in the chancerie vpō ye office, her dower remayneth vndefeted notwtstanding this trauerse and ouster le main vntil an other sute be made in the chauncerie for the defeting of the same. Howbeit in this case if the dower be to much, the lord that tended the trauers maie haue a writ of admesurement at the comon lawe and so cause it to be admesured wtout suing to the king for the sāe. For it is no losse to his highnes though she be admesured, seing the land is not holden of of him, as it apereth. 7 R. 2.7. R. 2. l Fitz ti. Admesur. P. 4. and there it is agreed that the heir shall haue a writ of admesurement of assinement of dovver made by his aun­cestor, quere tamen. But the abatour shal not haue a writ of admesurement nor garden en fait of assinement made bye garden endroit, nor if the heir within age, the garden of his heire shall not haue a writ of admesurement. But take the case to be that a woman is endowed in the chancerie the rest of the land there remaininge still in the kinges handes, yf it be surmised by the heir or any other for the king that ye land assined to the wife is not extended to the verie value, but that it is more in value then it is extended for, now vpō this surmise there shalbe a newe extente made, which be­inge returned in to the chancery a Scire facias shalbe awar­ded against the woman, and if she be warned and come not, or apere and saie nothing she shalbe newlie endowed, as it is said in Natura breuium fo. 265. Then let vs see farther at what time the woman may aske her dower in the chaun­cerie, and when she is endowed and loses her dower vpon a recouerie had against her by an eigne title how she shal­be recompenced. If the husband haue land in diuerse coun­ties [Page 20] wherbie after his death there be awarde seueral writz of Diem clausit extremum in to euerie of those counties she shal not be ēdowed vntil such tyme as all ye said writs be re­turnd again in to the chancerie, as it maie apere in .16. E. 3.H. 16. E. 3. in Fitz ti. Liue­re. P. 29 And note that when she is endowed in the chancerie and afterwardes loses by a recouerie vpon an eigne title, then she hath none other remedie but to cause the record of the same recouerie to be remoued in to the chauncerie, and vpō the first record wherby yt apered she had dower and this other record of ye recouerie, she shal haue a Scire facias recitīg both the recordes against the tenāt of the ii. partes to resese the said ii. partes in to the kinges handes and to be newlie endowed of the same, but not to recouer anye damages, not withstanding damages were recouered against her, & this apereth 43. in the boke of assises.43. lib. ass. in Fitz ti. Do­vver. P. 79. Now to the last braunce of this statute, which is, that wemen that hold of the kinge in cheefe any inheritāce of what age so euer thei be shal like­wise swere not to marie &c. By the order of the comon lawe before the making of this statute al women that were wt ­in age & in ward should whē they came of ful, age be maried by their lords euerie one of them with their porcions, and if they were of full age at ye deth of their ancestours, yet should they neuertheles be in the lords keping vntill their were maried by the aduise & dispositiō of their lordes. For as Glāuille in his .7. boke yt he wrote in the time of kinge. H. 2. sayethe Nulla mulier heres terrae sine dn̄orum disposicione vel assensu maritare potest de iure vel consuetudine regni, and therefore saieth he yf a man haue issue one or moe doughters which be his heires aparente & marieth ani of them wtout the assent of his lord, that be therbye forfets his in heritance by the lawe and custome of the relme, so that he shall neuer recouer yt again but onlie through his lordes mercie, and yt for this cause: For when the husband of such a woman shal do his homage for ye tenemēts so holden by knightes seruice [Page] it is requisite to haue the lords will & assēt lest he be compelled to receue homage of his mortall enemie or some other vnable personage, neuertheles yf ye tenant sue to his lorde for license to marie his daughter, the lord is bound to consēt or els to showe cause whie he should not, and if he will not, the woman may marie wher she listes without his assent. And the said Glanuill further saieth, that Tenant in dower can not in likewise marie without the assent of him that is her warrant, that is to saie the heier: And if she doe she shal lose her dower, and yet there ye husbād shal doe no homage, but what then? he shall do fealtie and for that cause also she shal haue license. And further saieth if she holde of diuerse lords it is sufficiēt for her to haue the assēt of ye cheefe lorde. Also he saieth that wemen being in ward Si de corporibus suis foris fecerint: which wordes as I vnderstand them bee if thei comit fornicacion and that be proued, then they that offend shalbe disherited, so that her porcion then goes to the other sisters yt haue not in the like offended: And if they all offend, then the lord shall haue the inheritance by waye of eschete. Howbeit saieth he wher they be ons maried by ye lordes assent and after becōe widowes thei shalbe no more in ward, but yet if thei marie again they must haue his assēt for ye reson before made. But then after thei haue bene once maried, thei shall not forfet their inheritance for their incō tinencie, so that it aperes plainly here by Glanuill that this hole statute of prerog. should be but a confirmacion of the comō law. And that the law was so as Glanuill toke yt, it may partly apere by the said statute of Magna carta cap. 7. For the wordes are not onlie quod vidua securitatem faciet quod se non maritabit sine assensu nostro si de nobis tenu­erit, Bracton li­bro 1, de custodia sock­manorum but are also vel sine assensu domini sui si de alio tenuerit And Bracton agrees also with Glanuille. Howbeit he saieth [Page 21] where a woman in the life of her auncestors maries without the assēt of the lord or wher the widow maries without the asseēt of her warrant, that the inheritance or the dower shall not now be forfeted, although in olde time yet was. And farther saieth that the heier in socage being a woman shalbe maried by the lord like as she should be if she weare heier of lands holden by knights seruise. And farther saieth that the heier male shalbe maried by the lord more thē once, that is to saie, as oftē as he shall come vnmaried in the time that he is vnder the age of xxi. yeres. But now by the statut of w. 2. cap. 22. the lords are abreged of their power in these mariages of the heires females, for yf thei now be within the age of xiiii. yeres at the death of their auncestor and the lord doth not marie them before thei come to xvi. yeres, then shall thei recouer their heritage without ani thinge geuen either for the ward or for ye mariage. And if their maliciously or thorough euel counsell refuse to marie where their lords doe apoint them without disparagement, then shall their lord hold their land vntill thei come to the age of xxi. yeres & longer vntill they haue takē the value of the mariage. Out of this statute (if it be wel cōsidered) a man may gather that the comon lawe was no lesse then is here recited. And this statute was made about the .3. yere of king, E. the 1. a litl [...] before that Britton began to writ his boke: for Britton f. 169. saies yt the mariages should be offred to the heires females before they accōplishe the age of xiiii. yeares, and yf not the lorde shall lose his right in the saide mariages. I suppose that the printer mistoke the nomber of the yeres and should haue printed sixteene wher it is but forteene, and ther­fore it is good too see other copiees for this matter. And Britton. also sayeth that if he or she haue beene once marryed by the lorde or in the lyefe of theyre father or [Page] once agreed wt their lord for their mariage, they shall neuer again be maried by him, but maye marie them selues where thei list, so that they hold nothing of the king. And fo. 168. he saieth yt the king shall haue the mariage of all the heires females where thei hold of the king of what age so euer they be as oftē as thei shalbe to marie, so that they can not mar­rie wtout the kinges licence. Thus is the last clause of this chapter expressely proued by Britton that ye comon law did stil remain as it was for the mariage of the heires females in the kinges case and not altered or abreged by the said es­tatute of. west: primer, & therfore was ye statut in ye 39. yere of king H. 6. the last chapter made in this wise. Item de auisa­mēto, assensu et aucthoritate pred. ordinatū est & stabilitū qd mulieres existentes etatis. 14. annorū tempore mortis ante­cessorū suorū absque questione seu difficultate habeant libe­racionē terrarū et ten̄torum suorum sibi descensorum quia sic lex istius terrae vult quod tunc ipsi haberent. How beit this statute prouides not wher thei be within the age of .14. yeres at the deth of their auncester, ideo quere. For as our late bokes go sins Brittons time the king hath lost his pre­rogatife, vpon what occasion I know not, but I woulde gladlie lerne,35. H. 6. 46. for Fortescue saies. 35. H. 6. that when the heir female sues her liuerie she takes no oth that she shall not marie as the kinges widow doeth, and therfore saieth he it should seme she should make no fyne yf she marie without licēse. Howbeit Littelton saies that if the heir female be of the age of 15. yeres at ye deth of her ācestor and marie her self without license, that she shall make a fine, for it amoūteth to an alienaciō. For after issue had the husband is become the kinges tenāt and he solie shall doe homage in his owne name. And yet afterwardes in ye 15. yere of E. 4. ye same Littelton saies yt ye latter clause of ye same statute is void, for the [Page 22] doughter which is inward mariynge her self to an other wt out licence shal not make a fine to ye king. Thus by the ar­gumēt of the said boke of .35. H. 6. it aperes that thei take the king to be bound by the said statut of .w. 1. and make him no better then a comon person, wherat I haue no litle meruel sins he is not named in the said statute. For in the said boke it is agreed by ye court that if the k [...]ng after the age of 14. yeares and before 16. do marie the heir female she shal haue liuerie foorthwith vpō the mariage,H. 35. H. 6. in Fitz ti, Gard. P. 71. althoughe she then bee not of the age of xvi. yeares because that she was of full age before as it is there said, that is to saie, as sone as she was. 14. And yt ii. yeres ouer is but only geuen for the mariage, which when it is once had and the .14. yeres past the kinge or lord lese theire interest. And so it was granted that if she were maried before the age of .14. and after her husbād dies before the said age when she comes to the said age of .14. she shal haue liuery. And there it was also said yt these ii. yeres were geuen to the lord to tender her mariage in, for the tender before was void, because it was wtin ye age of 14. yeres. But note yt if the heire female being vnder the age of 14. yeres falleth in to the kinges handes as ward because of certen lands that her father held of the king in cheefe, & by reson therof the king hath also the lands inward which are holden of other in socage, in this case when she comes to the age of 14. yeres and is vnmaried she shall not haue liuery of these landes holden in socage, and yet by reson of them the king hath not the mariage of her. But what then? she cannot sue her liuerie by parcels, and that is the cause that the hole land shal tary in the kings hands til a hole liuerie mai be sued of them all, and this aperes in the newe Natura breuium fo. 256. And last of all note yt this latter clause extends not to women that clayme by purchase but onlie by discēt. And therfore it aperes .15. E. 3.15. E. 3. ī Fitz ti. Liuere. P. 31. that where it was found vpō the Diem clausit yt the wife was iointly infeffed with her [Page] husbād she had an ouster le main without findinge any suertie of her mariage. And note also that by the comon law yf one will mary the kings nief,33. li. ass. in Fitz ti. Tra­uers. P. 36. that is to saie, his bondwomā wtout license he shal paie a fine vnto the king, as aperes in 33. E. 3. li. Assisarum.

The fifth chapiter.

ET si vna hereditas quae de Rege tenetur in capite descē ­dat pluribus participibus tunc omnes illi heredes faci­ent homagium Regi et illa hereditas quae de Rege te­netur participabitur inter heredes illos ita quod quil'z eorum extunc partem suam tenebit de Rege.

This statute is somwhat declared by a statute longe time made before, that is to saye in the 14. yere of king H. the .3. called statutum Hibernie de coheredibus which for the bet­ter declaracion of this prerogatiue I haue also here noted. Hēricus dei gratia rex Anglie dominꝰ Hiberniae et dux Aqui­taniae et Normann̄, comes Andigauie dilecto et fideli suo Gerardo filio Maurisci Iusticiar' Hibernie salutē. Cum milites de partibus Hiberniae nuper ad nos accedentes nobis ostende­runt quod cum hereditas deuoluta sit inter sorores in terra nostra Hibernie Iustic' nostri in eisdem partibus itinerant' in­certi sunt, vtrum post natae sorores tenere debeant de primo­genita sorore et ei facere homagiū an non. Et quia predicti milites petierūt certiorari qualiter ī regno nostro' Anglie ī ca­su consimili hactenus vsitatum fuit: sic ad instantiam eorundē vobis significamus, quod in regno nostro Anglie talis est lex et consuetudo in hoc casu, quod si quis tenuerit de nobis in capite et habuerit filias heredes, ipso patre defuncto ātecesso­res nostri habuerūt, et nos semper habuimus et cepimus ho­magium [Page 23] de omnibus huiusmodi filiabus, et singule earum te­nerent de nobis in capite in hoc casu. Et si infra etatem fue­rint, nos habebimus custodiam earum et maritagium singu­larum. Si autem de alio domino tenuerint et ipsae sorores in­fra etatem fuerint, earum dominus habeat custodiam et ma­ritagium singularum, et primogenita tamen faciet homagi­um domino pro se et omnibus sororibus suis, et alie sorores cum ad etatem peruenerint facient seruicia dominis feodi per manus primogenitae. Nec potest primogenita ea ratione vel occasione, a postnatis sororibus homagium vel custodi­am vel aliquam aliam subiectionē exigere, vel habere. Quia cum omnes sorores sint quasi vnus heres de vna hereditate, si primo genita posset habere homagium aliarum sororum vel custodiam petere, tunc esset illa hereditas diuisa, ita quod primogenita soror esset simul et semel de vna hereditate domina et heres. Heres autē suae partis, et domina sororum sua­rum, quod quidem in isto casu fieri non possit, cum ipsa pri­mogenita nihil posset petere plus quam aliae sorores, nisi capi­tale mesuagium ratione eineciae. Preterea si primogenita hu­iusmodi homagium a post natis sororibus suis acciperet, es­set quasi domina earum, et habere posset custodiam earum et filiorum suorum, et hoc esset quasi committere agnū lupo ad deuorandum. Et ideo vobis mandamus quod predictas consuetudines quas in regno nostro Anglie habemus in hoc casu vt predictum est, in terra nostra Hiberniae proclamari ac firmiter teneri facias et obseruari. In cuius rei &c. Teste me ipso apud vvest. ix. die. Februarii. Anno regni nostri. xiiii. Glāuil li. 7.

Before the makinge of this statute called statutum Hibernie it appereth by Glanuill which wrott in ye tyme of kinge Henry the second that the husband of the eldest daugh­ter should do homage vnto the Lorde for the hole inheri­taunce, and that the other daughters or theyr husbandes [Page] [...] [Page 23] [...] [Page] should do their seruice for theyr tenemēts vnto ye chief lord by ye handes of theldest sister or her husband, and yet they for ye same should not be bound to do anie homage or fealti to the eldest sister or her husbād duringe theyr liues, ne yet yt heires that come of them in the first degre or secōd degre. But the heires in ye third degre by the lawe of the Land were boūd to do homage & to paye reliefe for their tenements vnto the heire of the eldest daughter Quod nota. And the reason of it after the minde of Bracton which agreeth with Glanuille is this, that when issue descendeth of them to the 3. or .4. degre it is not like that issue should faile of their bodies,Bract' li. de hom̄ capiēd. and then may the heires of theldest daughter take homage verie well, for it is vnlikely that the eldest daughter or her heires shoulde then haue the same by discent, for these be his wordes, Quia cum sint heredes tres de herede in heredē extunc vix poterin: deficere, et ideo tunc sequitur homagi­um absquedāpno et periculo donatoris. For if therwere like­lyhode of the discent, in this case ye takinge of homage should be rather hurtfull then beneficial: For by the anciēt Lawes if one had infeffed an other to holde of him and had taken his homage, he could neuer be his heire afterwards, but the next vnder ye feoffor & his heires of ye kinred shoulde rather haue it. As put case before the statute of Quia emptores the eldest sonne had enfeoffed the middelmost to hold of him and had taken his homage, the middlemost dieth with­out issue, ye yongest should haue had the land and not the el­dest because of the homage yt he toke: howbeit if there were no yonger sonne ne any other heire, then the feoffor might claime the Land againe by eschete and not otherwise: for as longe as there were any, the feoffor or his heires of whome the Lands were so holden might not haue it. And that Bracton sheweth also in his first boke in the title de maritagiīs reuersis ad donatorē ꝓ defectu heredis. For he hath this text or sainge there, quod homagium expellit dominicum et re­tinebit [Page 24] seruicium & quod non potest quis esse dominus et heres: so that you may nowe perceiue that this statute of Irelande agreeth with Glanuill, sauing that Glanuill di­lateth or declares the common law farther then this statute doth. Also Bracton saith further in his title of Homage that if the eldest daughter in this case wil preuent the tyme and take homage before she nedeth, she by that leseth the bene­fite of the discent, & saieth that the reason why the ser [...]yce ought to be done by the eldest for them all is, because ye lord shal not be driuen to take his seruice by parcell mele, & fur­ther saith that although the eldest may not haue homage of her sisters forthwith but must tarry a tyme, yet shall they out of hand do fealtie vnto her, & all the other seruices that are to be done, & the eldest shal do them ouer, whiche is con­trarie to Glanuill, for he saith the other sisters shall doe ney­ther homage nor fealtie. Howbeit Britton fol. 175. agreeth with Bracton, and there setteth forth the manner of the fealtie by the yonger sisters to be done to the elder, & saith that it is at the eleccion of the lord whether he will take homage & the other seruices by the handes of the eldest onely for thē all, or else of euery sister seuerally for her seruice, for if hee might not so doe, the lord in proces of tyme might happelye lese the wardship of the heires of the other sisters, because of the woordes in the write of Ward, which are, that the an­cestours dyed in his homage, & that would be harde to trye when the homage was euer done vnto him onely by the el­dest sister. And Bracton in his said title of Homage sayeth, Cum quelibet soror de facto acapitauerit dn̄o capitali, hoc reuocari non poterit a primogen̄ vel eius marito, sed semꝑ qd' factum est tenebit, quia capitalis dn̄s quod ei oblat' est non recusabit, sed siue tenuerint de dn̄o Rege siue de alio cū ho­magium factum fuerit siue ante tercium hered' siue post, sta­tim sequentur releuiū et alia seruic̄ & a little before that sa­yeth, si plures sorores de dn̄o rege tenuerint in capite tūc pri mogenit' missa omnes acapitabunt et homagium faciēt dn̄o [Page] Regi, and therwith agreeth Britton. fo. 171. And yet fo. 198. saieth that theldest only shall do homage vnto the kinge for her selfe & her sisters. Thus haue you now thexposition of ye said statut of Ireland by the olde writers, by which said sta­tute & the saide writers yt appeareth that this statut of Pre­rogatiue is but a confirmacion of the common lawe, & doth only set forth & declare what the kings Prerogatiue is whē landes holden in chiefe discend to twoe coparceners. For in this the king hath a Prerogatiue aboue a comon person, as­wel for that they shal seuerallye holde of his highnes, as for that that his highnes shall make the particion, for whether they be of full age at the death of their auncestour or within age, or some of them of ful age & some of them within age, none of them that be of full age shal haue any liuerie but wt a particion, & that for the kinges benefite: because that vpō the particion euery one of thē shal haue for his portiō some parte of the landes that are holden of the kinge in Capite. For if some should haue for their porcion onlye the landes holden of [...]ther, then the king shoulde lose his prerogatiue in those landes hereafter for euer, because yt they that haue them when they shal dye hold nothing of ye kinge in capite: and so might the king be deminished of his auncient rights of the Crowne, which were against all naturall equitie.

Wherefore the lawe was euer they should all holde of the king. And that appeareth by the writs of Liuerie, in which writes there is a prouiso that euery one of them shall haue in her purparte parcell of the landes that are holden of the king in Capite, as you may see in the new Natura breuium fo. 2 [...]. And this liuery must be sued with a particion or else it is missued,H. 16. E. 3. in Fitz. t. Liueri P. 29. & it cannot be sued forth vntill such time as all the writes of Diem clausit extremū are come into ye Chaū ­cerie & returned, as appeareth. 16. E. 3. And then if all the co­perceners be found of full age, then a write shall goe out of the Chauncery to the Sherife to extende the landes, & after [Page 25] the extent retorned, a write shal goe to therchetour to make particion and liuerie according to thextent therof made, as appeareth in the newe Natura breuium fo. 262. But if one of the coperceners be within age and in the kinges warde, then the particion may be made in the Chauncery & then to haue a write of Liuerie to thexchetour of her parte, or else it may be wholly done in the Countrey by thexchetour like as they had bene bothe of full age, that is to say, shee of full age being there present in her owne person, and she that is within age onlye by Prochein amye, as it appeareth in the saide newe Natura breuium. fo. 26 [...]. Whiche write shalbee retourned with the particion and afterwardes enrolled in the Chauncerie. And it shoulde seeme that if after the write of extent retourned she that is of full age do praye a write of liuerie with a particion, that she shall then neuer after haue a reextent if so be that before it were so highlye extended.

Like lawe is it if the particion be not egal, and she notwithstanding will accept it. But in all those cases she that was within age if she haue to litle for her porcion, she may haue a write of participatione facienda against her other coperce­ner or a Scire facias in the Chauncerie vppon the recorde of Particion that is there, to shew why newe particion or ex­tent shall not be made. By which write if they bee warned and come not, or come and saye nothing, the land shalbe re­ceiued into the kinges hands, and a newe extent made in the presence of the parties, whiche if it be not extended as it shoulde be, they may pray a reextent before particion made: for after particion the prayer cometh to late. And this may ye see in the newe Natura breuium. fo. 65. and in .2. E. 3. et.2. E. 3. in Fitz. ti. Liūe P. 8. & 13. E. 1. eodem ti. p. 6. 13 E. 1. but learne whether she may defete the particion by en­tre wtout suyng any such writes or no, because the other are in by matter of record, ye is to say, by liuerie, wherunto she is also after a maner party. So is it not like ye case of a strāger, [Page] for a straunger that hath eigne title may enter vppon them after Liuerie notwithstandinge they haue the possession by matter of record.á 7. E. 3. f. 36. And it is said by Hill. 17. E. 3. that aduow­son assigned in Purpartie may be defeated by puttinge de­bate vppon the presentment without any other Proces:

And note that sometymes the king is to take a detriment by the liuere with ye particion: As take the case to be where some of them be within age and in the kinges warde and some of full age and theyr auncestour dyeth seased not only of Landes holden in chiefe but also of Landes holden of o­ther Lordes, they of full age haue liuerie with a particion, now the kinge leeses the wardwip of as much of the lands that are holden of other as they haue Liuerie of, and yet if no particion had bene made the kinge shoulde haue had the Wardshippe of the whole til the heire had come of full age, as Mombray affirmeth.M. 21. E. 3. 32 21. E. 3. And note also that of thin­ges entier the kinge shall haue by nonage of one of them the whole, and the other that bee of full age gett no parte of it ne yet liuerie therof ne particion: as take the case to be this: A maner holden of the king in chiefe wherunto aduouson is appendaunt discend vnto three coparceners, and one of them is within age and in the Kinges warde, the other two that be of full age maye sue theire liuerie for the lande with a particion, but not for the aduowson: For that shall whollye remaine to the kynge duringe the minoritie of her that is in warde.38. H. 6. f. 10. & M. 21. E. 3 fo. 34. And this appeareth. 38. H. 6. et. 21. E. [...].

And note that if vppon particion made thexchetour retour­neth that some haue theire partes deliuered them and some not, because they sued not to him for it, they that did not sue, maye at all tymes in the Chauncerie sue out a writte vntoo Thexchetour to haue the same deliuered vnto them, in whiche write there shalbee enclosed a transcripte of the Particion, as it appeareth in the saide newe Natura breuiū fol. 2 [...] and there it appeereth also fol. 293. that liuerye with [Page 26] a particion was sued for landes holden in Burgage: but by likelyhode it was no commen burgage: for as it appea­reth the heire did his homage for the saide landes. And note also that if the Coparcener of full age take the parte of her sister whiche is in the kinges Warde by lease or graunt of the kinge Durante minore etate, by this she suspendes the particion: For notwithstanding she haue the one moitie de­liuered her with the profites of the other moitie, yet when her sister commeth to full age, both they shal sue a newe ly­uerie with a particion, as appeareth in the saide newe Na­tura breuium. fol. 2 [...]2.

The sixth chapiter.

SImulier ante mortem antecessoris sui qui de rege tenet in capite ante annos nubiles maritat' fuerit tunc rex ha­bebit custodiam corporis illius mulieris vsque ad eta­tem quod consentire poterit. Et tunc elegat ipsa vtrum maluerit habere virum illum cui premaritat' fuerit vel alium quem Rex ei obtulerit. nullus qui de Rege tenet in Capite per seruicium militare potest alienare maiorem partem ter­rarum suarum ita quod residuum non sufficiat ad faciendū seruicium suum, fine licencia Regis, sed hoc non consueuit intelligi de membris et particulis earundem terrarum.

This Chapter containeth twoe matters beinge dyuers in nature, and therfore I entend to seuer and deuyde the one from the other, and the Chapter followinge to adioyne to the latter braunche hereof, because they entrete both of one thinge.

The seuenth chapiter.

DE Serieantiis alienatis sine licentia regis consueuit rex arentare huiusmodi Seri [...]antias per rationabilē exten­tam inde faciendam.

13. H. 3. in Fitz. ti. Gard p. 147.This statute is but a confirmacion of the common law. For it is writen in the .13 yere of king H. 3. in this wise. Thomas summonitus est ad respondendum regi quare ab­duxit Helenam filiam et heredem E. &c. T. dicit quod ipse ꝑ assensum E. in vita ipsius E. desponsauit predictam Helenam in facie ecclesie &c. et quia predicta Helena est infra etatem et cū ad etatem peruenerit potest cōsentire matrimonio vel dissentire, ideo remanet predicta Helena in custodia dn̄i Re­gis vs (que) ad etatem vt consentiat vel dissentiat &c. Here it is not set furth nor expressed what is thage in a woman to cō ­sent to matrimonie, and that is all that is to be sought vpō this statute: for Bracton in his first booke in the latter ende of a chapter which hath this paragrafe .s. De minoribus qui debent esse sub tutela et Cura dn̄orum vel parentum saith quod femina septimo anno etatis sue potest consentire ma­trimonio, et virum sustinere anno duodecimo, for he saieth, quod femina maius est capax doli quá masculus, et quod ma­turiora sunt vota mulieris quam viri: So that by him it ap­peareth that a Woman maye consent to matrimonie after she is .vii. yeres of age. And so I iudge the lawe was at that tyme taken. For it appeares in the tyme of kinge E. 1. that a man that helde by knightes seruice maried his heire appa­rant being vnder age & died,13. E. 3. in Fitz. ti. Gard p. 138 the lorde claimed the wardship of the bodye, & an issue was tended against him, that at the time of the saide mariage the infant was of thage of seauen yeres, and this issue was receiued by the Courte for a good issue to barre the lord of the wardship of the body, qd' nota, Howbeit it apperes not by the said booke whether the heire were male or female. & Wangford saies An. 35. H. 6. fol. 37. [Page 27] that when a woman is .vii. yeares of age her auncestour may then gather aid to marie her, which saieng argueth as mee seemeth that shee is then mariageable. And also this seemes to make with Bracton, Howbeit the lawe is not so taken in these daies. For she cannot now consent to matri­monie before thage of .12. yeres. This statut spekes onely of the heire female, and yet Cheiny saieth in .7. H. 6.M. 7. H. 6. [...] 30. E. 3. in Fitz. ti. Gard p. 156. & 128 that ye heir male shalbe taken wtin the compas of this statute by an e­quitie, because the statute is beneficiall: And so it should ap­pere .30. E. 1. where the sonne was maried in ye life of his an­cestour then being no more then of chage of .v. yeres, & whē the childe came to [...]hage of xii. yeares thancestour died & the court adiudged in this case yt the lord should haue the ward­ship of the body, to thentent that if the enfant hereafter ere he passe thage of .14. yeres disagree to the firste mariage, the lord may haue the mariage of him: And so it may appere by this booke that this statut is but a confirmacion of the common law, for euery lorde shal haue like aduauntage in this case as the king shal haue, & therewith agrees Paston. 7. H.M. 7. H. 6. 11 6. adding farther to this that by the order of the comon law before this statut of Prerogatiue, if ye heire would haue stād to ye first mariage when he or she came to ye yeres of conset, they should haue paied ye double value: & by this statut they pay nothing, & therefore the case was there: The kings te­nant in chief hauing a sonne & heir of [...]hage of .14. yeres doth mary hym & dyeth, the king offers the child mariage at the age of .14. yeres, whiche he refuseth, & holdes him selfe to the first mariage, & adiudged yt then fant might so doe & that for the same he should neuer pay the double value ne single of his mariage, & there Babthorp saieth that if ye woman had died the heire beinge within the age of consent, the kinge shoulde haue hadde the mariage of the childe, notwithstan­dinge that hee was once maried in the life of his aunce­stour, for yt was no mariage, but at pleasure: and there­with agrees Britton fo. 169. Yea although the wife had died [Page] after the yeares of consent and before the childe had come to thage of xxi. yeres, quere of this matter for I am enformed that the lawe is not taken at this daie as the saide booke is in .7. H. 6.

¶Now to thother branch of the Statute and the chapter next folowing the same.

It appeareth by Glanuill in the beginning of his seuenth booke, that euery freeman hauing land whether he had an heire apparant then lyuing or not, or whether the said heire apparant would cōsent to it or not, yet might he geue some reasonable porcion of his landes with his daughter or any other woman in mariage, or to any man that had don him seruyce, or in almes to any religious house, or to any other whome he would, so the said gifte were made in his health, for in extremitie of sicknes hee might not bee suffered so to doe, lest it should be thought to be done rather of a rage and furie of the mynde, whiche through sicknes for the moste parte commeth to men, then of any good discrecion, and so might he in his gift excede measure. Howbeit suche a gyfte in sicknes was euer good with the consent of the heire or with his confirmacion. Againe if he had manye sonnes, he could not without ye consent of his heire apparant geue any porcion of his enheritance to any of the yonger sonnes, for so might he disherit theldest thorough affecciō yt the fathers lightly beare towardes theire yonger sonne more then to­wardes thelder. But of his purchased lande he might giue the yonger a porcion whether theldest woulde or not. And if he had none issue he might geeue away all his purchased landes. But of the lands of his inheritaunce he might giue away no more but a reasonable porcion. And if the landes were departible amongest the heires males, then might the father in his life time geeue euerye childe what porcion hee woulde, so it exceded not the porcion yt shoulde descend vnto him. And in that case whether the gifte were of landes pur­thased [Page 28] or of inheritaunce it made no matter. Howbeit ney­ther Abbot nor Bishop might ī any of these cases geue any porcion of their landes away, without the kinges assent or his confirmacion, because theire baronies bee of the almes of the king or of his progenitours. Hitherto haue ye hearde what Glanuill hath saide. After this was the Statute of Magna carta made, where in the .31. chapter therof it is wri­ten, Nullus liber homo det de cetero ampliꝰ de terra sua vel vendat de cetero, quam vt de residuo terre sue possit suffici­enter fieri dn̄o feodi seruiciū ei debitū quod pertinet ad feo­dū illud. Which statute is but a confirmacion of the comon law, as it doth appere by that that is written in Glanuil. for so one yt had helde by knight seruice if he might haue beene suffred to alien ye greatest part of his land he would haue a­liened the same peraduenture to hold of him but in Socage or by some smal rent, & than hauing so little a liuelyhod left to himselfe, how had he bene then able to haue done the ser­uice of a knight or a man of warre, or what should his lord haue had in ward to haue founde one to haue done that ser­uice, surely little or nothing. Wherby the strength of ye Re­alme might haue much decayed: therfore it was a reasona­ble law to restrain him as me semeth. Howbeit Bracton in his first booke vnder the title, Si ille cui datū est rem datam vlterius alteri dare possit disputes this matter after a sorte, that is to say, whether ye tenant may enfeffe an other agaist the lords will or not, & he there affirmes he may, yea & that to hold of him by what seruice he will, & calleth it Damnū absque iniuria, seing that though ye wardship be not so good after alienacion to the chief lord as it was before, yet the relief is as good in euery point, & then if the lord be serued ei­ther of the wardship or reliefe, he hath all that knightes ser­uice requireth. Howbeit saith he when the tenant is so dis­posed to sell his land, the lorde shalbee preferred to the sale therof before a stranger geuing as muche as an other will. It semeth by Bracton that it was verie doubtfull notwith­standing [Page] the statut of Magna carta whither the kings tenāt might alien his whole tenancy or not. And therefore was ye statute of Quia emptores terr' made, where it is prouyded that from thenceforth which is in the .18. yere of kinge E. the first & after Bractons tyme, it should be lawful for euery fre man to sell his landes or tenementes or any parte therof at his pleasure to holde of the chiefe lorde by the same seruice yt the feffour helde. Prouided alwaies that by anye suche sales there comes no landes to Mortmaine. This statut remedies the mischief that was founde in the wardship, but not the o­ther mischiefe that is to saie touching the defence of the re­alme. For when one mans lyuinge is so dismembred neuer a one of them is able to doe the seruice of a man for want of lyueho [...]e. Yea and much more vnabler since this Statute, then before. For before where he gaue it to hold of himself, he reserued somewhat in place of the lande that went from him, where as now he can reserue nothing of comen right, Howbeit notwithstanding yt this statute of Quia emptores terrarū, made it lawfull for all other mens tenauntes, Yet was it not lawfull by the said statute for the kings tenants so to doe, that is to saye, neither to alien the whole, nor any parcel therof without the kinges licence. And that appereth by Bracton fo. 88. Which speakes generally yt the kings te­nantes in chief cannot dismember his fees wtout his licence. And because that before the time of king Edw. ye firste they might haue aliened without licence to holde of themselfes, as other mens tenauntes might haue done in the like case, & thinking it more lawful for them so to doe after the making of ye said statut of Quia emptores thā before, it was thought good to prouide some stay for the same by this statut of Pre­rogatiue. And yet by ye woordes of ye other chapter folowing it appereth that the kings tenant by grand serieantie, could neuer haue aliened any lands holden by grand seriantie wt ­out the kings lycēce. For yt was so high a seruice, as Bracton [Page 29] in his first booke in the title de magnis seriāciis names it Re­gale seruicium, & saith it was first inuented wtin this realme in the time of the Conquest, that they coulde not dismember any parte therof without the kinges lycence. For he saith in another place in the said booke amongest his writes of par­ticion. Quod seriantia diuidi non debet ne cogatur Rex acci­pere seruiciū suū per particulas. Howbeit since the makinge of this statut of Prerogatiue, sundry opinions haue risen in these matters as may appere by the statut made in the firste yere of king E. 3. ca. 12. Which saith in this maner. Item pur ceo que plusours gents du Realme soy pleinont deste greues de ceo que terres et tenem̄ts que sont tenus en chiefe du roy, et aliens sans son conge ount este pris auaunt ceux heures en mains le roy et tenus come forfets, le roy, ne les teigne my cōe forfets en tiel case, mes voet et graunt que desormes de tiels terres et tenementes aliens soit reasonable fyne pris en le chā ­cerie per due proces, So that by this statute it appereth they toke the landes to be forfeted that were holden of the kinge in chiefe and aliened without his licence. And so it appereth by a booke in .14. E. 3. wher Wilby saith that at this day lan­des holden by graund seriantie and aliened without lycence be forfeted.14. E. 3. in Fitz ti. Qua­re imp. p. 54. For the seruice of one mans body cannot be chā ­ged into another mans body without the kinges assent. Also in the said first yere of king E. 3. the. 13. chap. It is prouided in this wise. Et auxi come plusors gents du people soye plenont deste greues per purchase de terres et ten̄ts que ont este tenus des auncestors le roy que ore est come des honours, et mesm̄s tiels tenements ont este prises en le maine le roy, auxi si come ils eussent este tenus du roi en chief come de sa corone, le roy voet que mes ne soit home encheson pur nul tiel purchase. By this statut it appereth yt if a man hold of ye king as of any honor which is come to his highnes by discēt from any of his auncestoures, that by reason thereof hee shoulde not hold in Capite: For that was contrarie to the lawe, as if maye ap­peare by the woordes of the Statute, whiche saithe that the people complayned them selues to be greaued hereby, [Page] Whiche is to be vnderstanded vniustlye greeued, for by the wordes in the first chapter of Prerogatiua Regis it appea­reth that if it shalbe saide a tenure in Capite, it must bee holden of ye crowne of a long time. s. ab antiquo de Corona And that is it not when it is but newelye come: and the statute of Magna Carta. ca. 31. did helpe this matter by ex­presse woordes, If suche an honour came to the crowne by waye of eschete, but not if it came by waye of discent or anye other waye. And that statute doth set forth certeine honours by name whiche bee not of the auncientnes of the Crowne, that is to say the honour of Wallingforde, No­tingham, Bolingbroke and Lancaster. Therefore he that holdeth of the King as of these honoures, holdeth not of the king in chiefe. But other honours there be which of so long tyme haue beene annexed to the Crowne that to holde of them is to hold in chiefe, as it appeareth in the new Natu­ra breuiū. fo. 2 [...]. & f. 289. Where one helde of the kinge as of a certeine honour to yeld a certeine rent to the keepinge of the castell of Douer, this was there taken to be a tenure in chiefe. And so it was where one helde of his highnes as of the honour of ye Abbey of Marle. Therefore learne what honours be of the auncientnes of the Crowne: and what not. Also there is another Statut made in the .34. yeare of the saide kinge the .15. chapiter. which saieth in this wyse.

Item accorde est et establie que alienacion de les terres & te nements faits per gents que teignont du roye Henrie besayl au roy que ore est ou des auters roys deuant luy, a tener de eux mesmes, que les alienacions estoiēt en lour force. Saluāt touts foits a nostre seignour le roy sa prerogatiue de temps son aiel son piere et son temps demesne. M. 20. E. 3. in Fitz. ti. Ass. P. 122. & P. 124. & 26. li. ass. eodem ti. P. 146. This latter statute doth argue that the king ought to haue prerogatiue since ye tyme of king Edwarde the .1. & none before. And surelye so was the lawe taken, as it appeareth .20. & .26. E. 3. & therfore to thintent these alienacions made in king H. the .3. daies & [Page 30] before should not now be brought in question, this statute was made so that his grace shoulde haue fyne for all aly­enacions without lycence made since kinge Edwarde the first tyme, but not for any made before. And this shoulde be the meaning of this statute, which (vnder correction) is mi­staken by master Fitzherbert in his Natura breuium. fo. 226 Howbeit for myne owne opinion I doe not see by al these statutes but that the king hath his Prerogatiue by thorder of the common law, at lest wise as the comen law hath ben taken since the tyme of king Edwarde the firste, or else hee could not haue it nowe, for any thinge that I see prouyded for him by these statutes. For this statute of Prerogatiue goeth but to that where his tenaunt in chiefe alieneth the greatest parte without lycence, Ergo He may alien the les­ser parte without lycence, and so doth the statute expressely set it forth, except you will saye there bee twoe licences vn­derstanded here, that is to saye a generall lycence by the or­der of the commen law, and a special licence by this statute, thone to be requisite where any parcell is sold, thother whē the more parcel is solde. Therfore enquire and learne what other mens oppinions are vpon this statute. For I fynd no booke to proue it common lawe before Britons tyme, for Glanuill ne Bracton speaketh any thinge of it. And where this statute of Prerogatiue speaketh onely but of knyghtes seruice, the lawe is otherwise taken. For if one do holde of the kinges highnes in Socage in chief he can alien no pece without lycence. Then let vs see what thinges maye bee graunted or done without lycence and at what tyme: And howe the tenaunts that hath lycence shall pursue the same. The Kinges tenaunt that holdeth of hym in chiefe maye graunt a rent charge out of the same without licence as it appeareth .40. li. ass. et. 7. H. 6.40. lib. Ass. in Fitz. ti. Li­cence. P. 4. M. 7. H. 6. f▪ For the kinge by that shall sustaine no detriment. For his highnes nede not to hold it charged except he wil. But if one holde an aduouson of the [Page] king, or a rent, & granteth ouer the same without lycence, the graunter shal paie a fyne.21. E 3.22 And that appeareth. 21. E. 3. For there the case was that vppon licence with a particiō, an aduowson was allotted solye to one of the coparceners & after by composition betwene her & her fellowes she was a­greede to leaue thaduouson againe in common amongest them all & to present by tourne, & adiudged that this was an alienacion, for the whiche she must make a fyne: For before she was tenant solye and now shee is become tenaunt iointly againe with her felowes. The like lawe is it if there be lorde mesne and tenaunt, the kinge is the lorde and the mesnaltie is holden of him in chiefe, if the mesne release to the tenaunt without lycence,38. lib. Ass. in Fitz. ti. Fines p. 109 he shal pay a fine, as it appea­reth 33. li. Ass. and yet the release goeth there by waye of ex­tinguishment, but what then? he holdes now by the seruice the mesne did, that is to saie, in chiefe, and so thereby the te­nancy is altered. The selfe same lawe is it if twoe iointe­nauntes be, and thone release to thother wythout lycence, the king shall seise for a fyne,40. lib. Ass. in Fitz. tit. Li­cēce. P. 4. et P. 8. H. 4. tit. codem P. 1. as it appeareth. 40. li. ass. et. 8. H. 4. For the like reason that is made in the case of the co­parceners before. But where there is nothinge but a bare right released whiche goeth by waye of Extinguishement otherwise it is. For they of thexcheker vppon a fyne sur re­lease onelye vse to make out no proces to aunswer the king of an alienacion. The kinges tenaunt in chiefe may make a lease for terme of yeares without lycence, but not a lease for terme of lyfe, nor no higher interest;P. 45. E. 3. f. 6. as it appeareth. 45. E. 3. and in the new Natura breuium. fo. 198. Then at what tyme or howe he shoulde pursue his lycence: yf the lycence bee graunted by one king he cannot by vertue thereof alien in the tyme of an other kynge as it appeareth 2. E. 3. Lyke lawe yf the landes be in the kinges handes for Primer seisin or alienaciō wtout lycēce,P. 2. E. 3. in Fitz. ti. Offië de court. P. 29. at whych time ye king doth licence his tenaunt to make a feffement, he cannot make this feffe­ment [Page 31] till the landes bee out of the kings handes, as appea­reth. 21. H. 7.H. 21. H. 7. 7 Also he that hath lycence may not varie from it in anye point: As if the king lycence the Abbot and Couent to make a feffement, and thabbot sole will make it thys is void, as appeareth. 21. H. 7.H. 21. H. 7. 8. And there Frowike saide that if the kinge licence mee to make a feoffement by deede, I can not make it without deede Nec econtrario. H. 3. E. 3. in Fitz. ti. Fines p. 164. And herewyth agreeth the booke of. 3. E. 3. Where the lycence was to le­uie a fyne of the maner of Dale to fynde twoe chapleynes and he woulde haue leuyed the fyne leauynge out the chap­leynes & coulde not be suffred. And. 30. E. 3.18. E. 2. in Fitz. ti. Fines P. 124 M. 30. E. 3. 22 the lycence was to leuye a fyne of the manour of Dale yeldynge a rent, and he woulde haue leuied the fyne of the manour with a For­prise, that is to saye, exceptinge certeine acres parcell of the manour yeldinge the rent, and coulde not bee receiued so to doe, for that should not agree with the licence, which would the whole manour to be charged with the rent. But if there had bene no rent reserued it semes he mought haue alyened any part of the manour by a lycēce of alienacion of ye whole manour tamen quere, For it shoulde seeme to be within the woordes of this statute which woulde you shoulde not dys­member the kings fees, and learne if ye king licence his te­naunt to make a feffement, whether hee may make it vpon condicion or not, for they vse when a condicionell feffement is to be made to expresse the condicion within the lycence: & if the condicion be to make an estate againe to the feffour, al this goeth vnder one fyne & in one lycence. And note that if the Iustices before whome the fyne shalbee leuyed be enfor­med that the landes are holden of the kinge and that so ap­peare to them by any record, they will not take the fyne tyll they haue seen the licence nor yet engrosse it till they haue receiued a write out of the Chauncerie called Quod permittat finem illum leuari, by which they may be fullye certified of ye kinges pleasure, which writ apereth in ye new Na. bre. f. 147 [Page] and that they haue thus vsed it appeareth 4. E. 2. & 33. H. 6. But they neuer vsed so to doe vpon a recouerie in these commen writs of entre in the post, 4. E. 2. in Fit. ti. Fynes. p. 1 [...]5. M. 33. H. 6. [...] because ye recouerer in such case should paye no fyne: for it was no alienacion since the recouerer claimed not in by the tenaunt. But nowe by the statute made in the .32. yeare of kinge Henrye the 8. it is or­deined that the recouerer in such case should pay a fyne for alienacion. And note that if an alienacion bee made wyth­out lycence the pardon is moste commonlye made vnto the Feffee and not to the Feoffour. And so I suppose it ought to be, because the wrong groweth by the entre of the Feffee whiche hath entred the kinges fee wythout hys lycence.

And therefore the case is 14. H. 6. that where the kyngs te­naunt aliened without lycence,14. H. 6. 27 and tooke estate againe to him & to his wyfe in taile, the remainder ouer to his right heires and dyeth without issue, and the kynge pardoneth the wyfe all maner of alienacions, this was thought good to exclude the kyng of his fyne that he shoulde haue hadde for the saide alienacion. And it is further to bee noted that the lycence must bee purchased vppon a true suggestion or else it is voide. For if the kinges tenaunt in taile preten­dinge to be tenaunt in fee simple will pourchase lycence to make a Feoffement, this is a voide lycence, as it appeareth 40. li. ass.40. lib. Ass. in Fitz. ti. Gard p. 1. And in all cases where the kings tenaunt in chief will dismember his tenaunt, that is to saie alien any par­cel hereof without lycence, the Kinge may distraine for hys whole rent in the parcell so aliened, but if he haue the kin­ges lycence to make such alienacion, the alience shall haue a writ in the Chauncerye called de deonerando pro rata porcione, that he shall no further bee charged then after the quantitie of the porcion that he holdeth. This writt you maye see in the new Natura breuium. fo. 2 [...]4.

The eygthe chapiter.

DE ecclesiis vacantibus quarum aduocaciones spectāt ad regem & alij presentauerint ad easdem: Ita qd' contentio inter dominum regem & alios oriatur, si Rex per consideracionem curiae presentationem suam re­cuperauerit licet post lapsum sex mensium a tempore vacati­onis nullum currit ei tempus, dum tamen rex presentauerit infra tempus sex mensium.

Of this chapiter I fynde nothyng neither in Glanuile, Bracton nor Britton ne in anye other olde writer before the ma­kynge hereof, sauinge that I fynd this texte bothe in Brac­ton & Britton. s. quod nullum tempus occurrit regi, why­che Bracton in the beginninge of his firste boke vnder this tytle que res dari possit appliethe vnto liberties appertey­ninge vnto the crowne saynge in this wise, quod illi qui huiusmodi libertatem sibi vendicat doceat huiusmodi ad se pertinere, quia si warrantum non habuerit speciale in hac li­bertate defendere non poterit, quamuis pro se pretendit seisinam longi temporis, diuturnitas enim longi temporis in hoc casu non minuit iniuriam sed auget, nec in isto casu cur­rit tempus contra regem, nec incumbit ei probatio qd' ad ip­sum pertinet cum constare debeat singulis quod huiusmodi de iure gentium pertineant ad coronam. sed sunt alie res que pertinent ad coronam que non sunt ita sacre quin transferri possunt, sicut sunt fundi, terre & tenementa & huiusmodi, per que corona Regis roboratur, et in quibus currit tempus cōtra regem sicut contra quamlibet priua­tam personam. This it appeareth by Bracton that this texte dothe not serue the kynge in all cases, for prescription shal holde sometime againste the kynge in suche thinges as a manne maye prescribe in,8. H. 5. ti. tra­uerse. P. 47. as it is commen in oure bookes that one shall prescribe for wayfe and strayfe and such like againste the kyng. And allso it appearethe in the [Page] boke in 8. H. 5. that the kyng may surcesse his time: as wher it is founde that tenant for terme of life hath forfaited hys estate to the king, whereby the king ought to sease, yf hys grace sease not but tarie till he be dead so that hee in the re­uercion entreth, he can not then sease, & so it may appere vn­to you yt though this be an auncien text. quod nullum tem­pus occurrit regi, yet in cases it dothe: & where this texte is onely apointed by this statut to serue wher the bishop taketh the benefice by laps, yet by an equitie it is taken in so­me cases to extende to a plenartie, that is to saye, where a straūger hath presented & his clerk is in by six moneths: As take the case to be where the king hath aduowson in ward & a straunger vsurpes and his clerke is in by six monethes before the king bringe his Quare impedit, yet shall this ple­nartie bee noe plea against his highnes, but that he shal re­couer: and the reason of it is, beecause els the kynge shoulde be witheout remedye. For writ of right he cannot haue ha­uing but an estate in the thinge as gardeyn. Wherefore in thys case nullum occurrit ei tempus, for els it should appere that a straunger mighte holde a thinge merelye by wronge againste him withoute anye good grounde or beeginnynge that can bee intended of it, whiche case is agreed .18. E. 3. et 43.P. 18. E. 3. fo. 15. P 43. E. 3. fo. 14. E. 3. But yet in this case the kynge maye not put oute thincumbent whiche is admitted, instituted, and inducted in the benefice without sute, that is to saye, Quare impedit, beecause it is so prouided by the statute of .25. E, 3. capitule .3. & .3. R. 2. cap 1. Like lawe is it yf the kynges tenaunt be sea­sed of a manner holden in chiefe to the whiche aduowson is appendaunt and alienethe the manner wythe the aduow­son wytheout lycence, after the churche beecommes voyde and a straunger vsurpes and so twentie vsurpacions one after an other, and afterward these alienacions without ly­cence are founde by office, and the churche becomes voyde, [Page 33] the kynge shal present notwithstanding those vsurpacions, and if the churche bee full,H. 4. E. 3. in Fits, ti. quare impedit. 33. hys highnesse maye haue a Qua­re impedit against thincumbent Causa qua supra. And thys appeares in .4. Edwarde the thirde. But yf the kynge bee seased of an aduowson in his demeane as of fee, it seemes that plenartie shalbee a good plea againste hym, for there his highnesse hathe remedye prouided hym, that is to saye,18. E. 3. f. 15. 43. E. 3. 14. bye writ of ryghte, and so is thoppinion of Sharde & wylby 18. Edwarde the thirde. Quere, for in the bookes of .43. Ed­ward the thirde, the defendaunt durst not abide by the plea but trauersed the title that was made for the kyng. And learne whether plenartie be a good plea against the quene whiche holdethe for terme of lyfe the reuercion to the kyng,P. 18. E. 3. f. 13. for this case is also left at large in. A. 18. Edward the thirde. Now to the statut, where the woordes be that no laps shal holde againste the kinge if he present within syx monethes. These woordes yf he present within six monethes be voide, for thoughe hee presente not, yet title of laps shall not take place agaynste hym by this statute,P. 18. E. 3. 21 and therefore the booke is .18. Edwarde the thirde, that where the laps was incur­red in the life of the kynges tenaunt and beefore the or­dina [...] presented the tenaunt dyed, and yt was adiudged that the kynge coulde not presente wythein the syx mo­nethes, beecause his tenaunt was then aliue. What say you then to this case, yf the laps dyd incurre after the deathe of the kinges tenaunt and beefore office found, the kynge not withstandinge shal haue the presentment after office found as it is greed 14. Henrye the seuenthe,P. 14. H 7. 22 and yet ther the king might haue presented after the deathe of hys tenaunt befo­re offyce founde and did not. And in the saide booke of .14. H. 7. it is left for a question, sins the ordynary cā not pre­sent by laps against the kinge, howe & in what manner the [Page] cure shallbee serued in the meane time that is to saye, bee­twene the laps and the kinges presentment, somme thinke in that case that the ordinarye shoulde presente one for the meane time whiche shoulde bee remouable alwayes at the kynges pleasure, and some other thinke he shoulde seque­ster the fruites to fynd ye cure Ideo quere. And Bracton li. 3. in the writte of Darrein presentment saiethe that this title of presentment by laps was geeuen to thordinarie by a con­stitution made in the councell of Lateranense.

The nynthe chapiter.

REx habebit custodiam terrarum fatuorum naturaliū capiendo exitus eorundem sine vasto & distruccione, & inueniet eis necessaria sua de cuiuscun (que) feodo terre ille fuerint, & post mortem eorum reddat eam rec­tis heredibus, ita quod nullatenus per eosdem fatuos alienē ­tur nec quod eorum heredes exheredentur.

This prerogatiue beganne in the time of kynge E. 1. as yt shoulde seeme to mee, beecause I fynde none that wrote of it before Britton, for Bracton speakes but a lytle of Ideotts i [...] his fifthe boke in the title of exceptions againste the plain­tife where he sayethe: it is a good exeption to the parsone of hym that complainethe or bringeth anye accion to saye hee is a foole naturall, quia tales non multum distāt a brutis qui ratione carent, nec valere debet quod cum talibus agitur, sed tamen discussio huiusmodi exceptionis discrecioni iudicis re linquitur. and sayethe like lawe is it of hym that coulde ne­uer heere nor speake from the time of his natiuitie, & quod inuenienda sunt eis necessaria quoad vixerint per officium iudicis pro qualitate persone & hereditatis quantitate si he­res [Page 34] esse debeat, & si semel authoritate curatoris adquisierit si fuerit inde eiectus recuperabit per assisam sicut minor. By this it appears that ye kyng had no prerogatiue but the iud­ge. Howbeit Britton. f. 167, saiethe that the kinge oughte to haue his prerogatiue herein, for these be his words: Et pur ceo que ascun foites auient que ascun heire est sotte naste, ꝑ quoy il nest my able a heritage demaūder et garder, volumꝰ q̄ tiels heires de qui que ils ne vnques teigōnt males & fema­les demurgent en nostre garde oues (que) toutes lour heritages, sauant a chescū seignour touts auters seruices que a luy ap­pendaunt de terre tenus de luy, & icy remainount en nostre gard tant come ils duront en lour sotie, & ceo ne voilomus nous my de ceux qui deueignount sotes per ascun maladye. Vpon these words of Britton I note .iij. things, one is yt the king shal not haue the custodie during theire liefes but du­ringe theire Ideocy, the second notwithstanding the lande is in the kings handes, yet the other lorde shall haue theire seignories, which is by way of peticion as I take it: and the thirde is that the other lorde shall not haue the wardshippe of the heire nor of his landes but onely the kynge: whiche thi [...]de thingꝭ by this statute of prerogatiue are not so plaine­lye set fourthe, and also by this statute it appeares that the kynge shall haue the custodye of suche Ideottes durynge theyre lyues, for the woordes bee, Et post mortem eorum reddat eam rectis heredibus and not beefore. The man­ner howe the kynge shall come to his prerogatiue appea­res by a booke case .16. Edwarde the thyrde,16. E. 3. in Fits. ti. Liue­ry P. 30. where Sharde sayes that when the kyng is enfourmed that there is suche an Ideotte hys highnes shall sende for hym and cause hym to bee broughte beefore hys chauncelloure or some other whom hee shall appoynte, and yf by examinacion hee bee founde an Ideot, yet his hyghenesse oughte not to sease his landes vntill suche tyme as hee bee founde an Ideot by of­fice. And in the newe Natura breuium folio. 232. it appea­res [Page] that the kinge appointes all this matter to theschetour or sherife bothe to examine and enquire, in whiche sayde Natura breuium folio. 229. it appears that this office when it is founde shal haue relacion a natiuitate to auoide al mea­ne actes donne by the Ideot, that is to saye, his feffements or release: but learne and enquire whether suche feffees shall bee put out by thoffice without anye Scire facias to bee awarded againste them.M. 18. E, 3. in Fits. ti. 30. Scire facias. P. 10. et. 106. In 18 & .32. E. 3. a Scire facias was awarded in that case, and learne allso whether the of­fice shall haue relacion for the profites from the tyme of hys natiuitie or onelye from the findinge of thoffice. Then to the exposicion, the woordes bee, Rex habebit custodiam terrarum fatuorum naturalium. By these woordes it appe­rethe that he must bee a fole natural, that is to saye, a foole a natiuitate▪ for yf he were once wyse and beecame a fole by chāce or misfortun,M. 18. E. 3. Fits. ti. Scire facias. P. 10. ye king shal not haue the custody of him, and so it is agreed in .18. E. 3. And also in the newe Natura breuium. fol. 2 [...]3. and the manner of the tryall of hym to bee a foole naturall appeares in the sayde Natura breuium folio. 233. that is is to saye, yf hee cannot tell to twē ­tye pence, or tel his age, or who was his father and mother, or such like thinges: whereby yt may appeare hee hathe no kynd of vnderstandinge in that that is eyther for hys pro­fyte or dammage. But if hee bee learned or apte to learne, thenne is hee no Ideot as maister Fitsherbert there thinks,M. 31. E. 3. ti. sauer de de­faulte. P. 37. and Grene sayethe in .31. Edwarde the thirde, That yf hee bee able to begette eyther sonne or doughter he is no foole naturall. The woordes of the statute bee further, Capien­do omnes exitus eorundem sine vasto et destruccione et in­ueniet eis necessaria sua. By these woordes it appeareth that the kynge maye take the profetes to hys owne vse, fyn­dynge them theire necessaries. And therefore in the booke beefore of Tricesimo primo of Edwarde the thyrde the kynge dyd not lette the lande vnto one of the cosyns [Page 35] of the Ideot yeeldynge a rente (butte these woordes, fin­dynge them necessaryes) is not onelye mente to the Ide­ottes themselues, but allso to all them that hange vpon them, as theyre wyfe chyldren and familye. And allso by these woordes sine vasto & destruccione, M. 3. E. 2. in Fits. ti. Gard. P. 5. it appea­rethe the kynge is bounde to reparacions of theire lan­des and tenementes. The woordes bee allso, De cuius­cunque feodo terre ille fuerint By those woordes it shoul­de seeme the kynge shoulde be preferred in thys tytle of Ideocye, beefore anye other lords whyche myghte clay­me the Ideot as hys warde, howebeit learne what other menne thynke therein. Et post mortem eorum reddat eam rectis heredibus. Bye these woordes it shoulde appeare that the kynge shoulde saue the custodye du­rynge the lyfe of the Ideof, and that than an Ouster le mayne in nature of a lyuerye shallbee suyd of the same oute of the kynges handes: butte whether yt shallbee made wythe the yssues and profytes from the tyme of the Ideottes deathe, or onelye butte from ye time of the tender of the Oustere le mayne learne, butte yf the landes that the kynge hadde so in custodye bee hol­den of hym in capite, thenne notwythestandyng these wordes of the statute yet the kynge shall haue warde­shyppe, prymer seisin, and all other prerogatiues as yf hys tenaunte in chiefe hadde dyed seased thereof, beynge noe Ideot, as it maye appeere in the newe Natura breui­um. fol. 2 [...]6. And there it appeares folio. 2 [...]2. allso, that allthoughe the Ideot helde noe landes of the kyng, yet a Diem clausit extremum shallbee awarded after hys dea­the to enquire what landes hee dyed seased of, of whom they are holden &c. And it is to be noted yt yf one be foūd Ideot by office & before ye king seaseth ye lands ye Ideot dies, [Page] yet the kynge shall sease, beecause of these woordes in the statute [...] post mortem eorum reddat eam rectis heredibus. whych his grace cannot do but vpon a seisure, and thys ap­peares 18.M. 18. E. 3. in Fits. ti. Scire facias. P. 10. Edwarde the thirde. And note allso that if ther descende to an Ideot no possession in landes butte onelye a ryghte, bee it righte of entre or title of entre or ryghte of ac­cion, the kynge shall not enter and haue the custodie of the same,1. H. 7. 15. as appeares in. 1. Henrye the seuenth, and yet if hys tenaunt of landes holden of hym by knyghtes seruice bee disseised and dyethe his heire within age, the kynge shall enter and holde the same in warde: and therfore learn what is the reason that shoulde make a difference in these cases. The woordes be further Ita quod nullatenus per eosdem fatuos alienentur nec quod eorum heredes exheredentur Bye these woordes it appeareth the landes cannot bee a­liened by the Ideot nor the heires disheryted, and therefore if the Ideot make a feffement or release of his landes and that founde by office, the kynge shall auoyde it as I haue beefore noted, and so likewyse his heires after his deathe by force of these woordes of the statute. And yet it appeares .31. E. 3. that a recouerie by default passed against an Ideot, but execucion of the iudgement was stayed because of the kyn­ges possessiō: which proues that notwithstanding the kinge haue the possession durynge the Ideots life, yet his highnes hathe noe freehold therby but onely a bare custody, for the freeholde remaines in the heire. And therewythe agrees. 17 Edwarde the thirde.H. 17. E. 3. 11 But what than? this recouerye is not lyke to this alyenacion, for by the recouerye the Ideottes heire is not dysherited by thact of his auncestoure yf so bee that the recouerye weare vppon a good title. And it appea­res in .33.P. 33. H. 6. f, Henrye sixte, that an Ideot shall not bee recea­ued to pleade by gardeyne or Procheyne amye, but he hym [Page 36] selfe shall appeare in proper persone in euerye accyon broughte agaynste hym, and whosoeuer wyll pleade beste for hym shallbee admytted: and learne and enquire yf the Ideot bee but tenaunte for terme of lyfe or yeares yf the kynge shall haue hys prerogatiue therein or not, bee­cause the Ideot cannot alien that lande to the disherison of hys heire: and yf hee shall, howe the lessour shall ponishe the waste doone in the kynges tyme. And learne allso whether the kynge shall haue the goodes of an Ideot as wel as lande, thenne laste of all yf one bee founde Ideot whi­che is none in deede. The manner howe hee shall auoyde this office appeares in the newe Natura breuium folio. 233 that is to saye, hee that is falslye founde to bee an Ideot eyther by him selfe or his frinds shall come in to the chaū ­cerye or beefore the chauncelloure of Englande and the kynges counsell and praye to bee examyned of hys ideo­cye, or hee maye sue a writte out of the chauncerye to hym that hathe the keepynge of hym to brynge hym beefore the kynge and hys counsell to be examined, and if he be found vpon hys examination to be noe Ideot, then by that is thof­fice and all the reste of the proces auoyded wythoute anye farther trauerse: howebeit where a Scire facias is awarded agaynste the feffee of the Ideot, there the feffee appearing vppon the Scire facias maye trauerse the Ideocye, as it ap­peares, he dyd in the booke before of .18. Edward the third. And note that by a statut made in the .32. of Henry the eight the xlvi. chapiter, Ideottes and theire landes bee in the sur­ueye of the courte of wardes, and the same courte maye let and set theire landes, but not to graunt the custody of their bodyes for anye woordes that I can perceaue in the same statute.

The tenthe chapiter.

ITem rex prouidebit quando aliquis qui prius habuerit memoriam & intellectum non fuerit compos mentis sue sicut quidam sunt per lucida interualla quod terre et tenementa eiusdem saluo custodiantur sine vasto & destructione, & qd' ipse & familia sua de exitibus eorun­dem viuant & sustineantur competenter, & residuum vl­tra sustentacionem eorundem rationabiliter custodiatur ad opus ipsorum, liberand' eisdem quando memoriam recupe­rauerint, ita qd' predicta terre et tenementa infra predictum tempus nullatenus alienentur, nec rex aliquid de exitibus percipiat ad opus suum. Et si obierit in tali statu, tunc illud residuum distribuatur pro anima eiusdem per consilium or­dinarij.

It appearethe bye Bracton in hys fifthe booke amonge thexceptions to the persone of the playnetyfe that it is a good exception to saye that hee that ys demaundaunt or plainetife is of Non sane memorie. For these bee hys woordes. Competit etiam tenenti exceptio perempto­ria ex persona petentis si petens furiosus fuerit, vel non sa­ne mentis quod discere nesciat, vel quod omnino nullam habeant discretionem: tales non multum distant a brutis que ratione carent, nec valet quod cum talibus agitur du rante furore. Possunt enim quidam aliquando dilucidis gau dere interuallis, & quidam habent furorem perpetuum: [Page 37] quod autem actum fuerit cum talibus tempore quo diluci­dis gaudent interuallis ratum erit, ac si cum alijs agere­tur siue furorem suū simulauerint siue nō, acquirere qui­dem non poterunt in ipso furore vel cum non fuerint sa­ne mentis aliqui qui consentire non possunt nec adqui­sita alienare vel dare, quia alienacioni non magis consen­tire possuut quam adquitsiioni, sed seisinam retinent quia animum mutare non possunt quē acquirendo cum essēt sane mentis habuerunt, & furor superueniens nichil adimit non maius quam morbus incurabilis, sicut lepra: secundum quod dicitur quod multa impediunt contrahendo que non dirimunt contractum, & ita sunt multa que impediunt promotionem, que non deiciuntiam promotum. Et tali­bus de necessitate dandus est tutor vel curator. So it ap­pearethe by Bracton that in his tyme yt was thought [...] expediente that folkes that weare destraughte shoulde ha­ue a tutoure or one that shoulde take the charge of them, whyche offyce sens is reuolued vnto the kynge and made parcell of his prerogatiue. For as Fitsherbert in hys Natura breuium folio. 252. verye well sayethe. The kynge ys the protectoure of all hys subiectes and of all theire goodes, landes and tenementes, and therefore of suche as cannot gouerne them selues nor order theire landes and tenementes hys grace (as a father) muste take vppon hym to prouyde for them, that theye them sel­ues and theire thinges maye bee preserued. And beecause that Lunacye or madnes ys not frome the tyme of ones byrthe, (as Ideocye is, M. 3. E. 2. in Fits. ti. Gard P. 5. butte commeth sometymes bys fytes or courses) hys grace therefore can clayme no cer­tayne intereste in the lunatike persone, lyke as hee maye doe in the Ideot: and therefore it ys ordeyned that [Page] his booke. f. 27. which nowe this statut hath made clere and without question.

The twelfthe chapiter.

ITem habebit escaet' de terris Normanorū cuiuscū (que) feo di fuerint, saluo seruicio quod pertinet ad capitales do­minos feodi illius, et hoc similiter intelligendum est, si aliqua hereditas descendat alicui nato in partibus transmari­nis, & cuius antecessores fuerunt ad fidem regis Francie de tempore regis Iohannis & non ad fidē regis Angliae, sicut con tingit de baronia Monumete postmortē Iohannis de Monu­meta cuius heredes fuerūt de Britan̄ & alibi de feodis aliorū recuperauerit Henricus plures escaetas de terris Normānorū occasione predicta, & eas contulit tenēdas de capitalibus do minis feodi per seruitia inde debita & consueta.

It Appereth by the Cronicles yt king Ihon was ye last duke of Normandie & that in his time Normandy was lost, wherupon king Henry his sonne as it may appeare by the later clause of this chapiter recouered diuers escheates of lande within this realm holden by Normās, which after they begā to adhere to ye Frēch king ye kings enemy & became traytors vnto his highnes, they forfaited al their lands by order of the cōmō law to the king of whōsoeuer they were holdē. Howbeit in such cases after ye forfaiture, if the king had ge­uē these lāds to any other he might not haue geuen them to holde of him selfe, but onelye of them of whom they weare before holden: as this statute plainelye declareth that king Henry the third so did.M. 20. [...]. 3. ti. Assi. in Fits. P. 124. et ꝑ. 46. E. 3. ti. Peticion. P. 19. And likewise in 20. & .46. E. 3. it ap­peareth that if the king do otherwise, his patent shallbe re­pelled and made to holde of the lordes of whom the landes weare holden before the treason, and that by a peticion of ryghte to be sued vnto the king for the redresse of the same, [Page 39] for other remedie haue they none, & distrayne they may not, as appeareth in the newe Natura breuium f. 180. And fur­ther it should appeare by the sayde boke of .20. E. 3. that the king ought not to reteyne such land in his owne handes no while but must dispose thē ouer to holde of them that were lordes thereof at the time of the treason committed. Hereby may you gather that this statute in his first braunch is but a confirmacion of the common law, and that long time be­fore the makinge hereof kinge H. 3. had this prerogatiue, as it dothe manifestlye appeare in the later braunche thereof. And also by Bracton in his first boke in the title De custod' & maritagijs dn̄orum, and likewise in Britton folio. 28. The woordes of the statut be further. Hoc similiter intelligendum est si aliqua hereditas discendat alicui nato in partibus trans­marinis et cuius antecessores fuerunt ad fid ēregis Franciae de tempore regis Iohannis Angliae, sicut de baronia Monumete post mortem Iohannis de Monumeta, cuius heredes fuerunt de Brittannia vel alibi. By this braunch it shoulde appeare that at this time men of Normandy, Gascoign, Guion, Angeo & Brittain, were inheritable wtin this realm as wel as English men, because that they were somtime subiect vnto the king of England and vnder their dominion vntil king Ihons time as is aforesaide, and yet after his time those mē (sauynge suche whose landes weare taken awaye for trea­son) weare still inheritable within this realme, till the ma­kynge of this statute. And in the time of peace beetweene the twooe kinges of Englande and Fraunce theye weare aunswerable within this realme if they had broughte anye action for theire landes and tenementes, as it doth plainly appere by Bracton in his fifth boke in ye title De exceptione quia alienigen̄, for these be his words. Est autē alia exceptio q̄ competit tenenti ex persona petentis propter defectū na­tionis q̄ dilatoria est et nō perimit, actionē. Vt si quis alieni­gena qui fuer' ad fidē regis Frācie & actionē instituit versꝰ [Page] aliquē qui fuerit ad fidem regis Angliae, talis nō respondeatur saltem donec terre sint communes, nec etiam si rex ei cōces serit specialiter placitare, quia sicut Anglicus non auditur in placitando aliquem de terris & tenementis in Francia, ita non debet alienigena & Francigena qui fuerit ad fidem re­gis Franciae audiri placitando in Anglia. Note here that he sayethe that this exception is but dilatorie and not peremp­torie, whiche proueth that hee shall haue his accion at an o­ther time, that is to say, in the time of peace. And also he sayeth after, Donec terre sunt communes, which is as much to say vntill suche time as there is peace beetwene Fraunce & Inglande. Also Bracton in his thirde booke vnder the title quod mulier ostendat warrantum per quem petit dotem sayethe si warrantus fuerit ad fidem regis Franciae & excipi­atur de warranto remanebit dotis exactio in suspenso imꝑ­petuum vel ad tempus saltem donec terre fuerint comunes. This warrant of dower is the heire of the husbands for by thaūcient law if a woman had brought her writ of dower against any other but the heire, he was not bounde to aun­swere her dower vntill such time as she had brought foorth her warraunt that is to say, the heire. In like case after shee is endowed she is not bounde to aunswere to anye other without the heire, and if it might appeare that the heir had no righte in the second part, then shoulde shee be barred of her accion of dower, as it appeareth in the case beefore that hys right is suspended when he is a Frenchmā and the .ij. realmes at warre. Howebeit it appearethe as I haue sayde before that this exception is not peremptorie, but that after the twoe realmes be agayne at peace, she shall haue her do­wer. The woordes of this braunche be also in the Copula­tyue, that is to say, that the auncester must be of the allege­aunce of the Frenche king, & that the heire of the sayd aūce­ster is born in ye part of beyond sea. I put case than that the auncestour were of the allegeaunce bothe of thone kynge [Page 40] and the other that is to say the Frenche king and the kyng of Englande whether is this within the compas of this sta­tute? For Bracton in his saide v. book vnder the title De exceptione quia alienigena saith. Quod sūt aliqui qui sunt ad fidem vtriusque sicut fuit W. comes Marescallus & ma­nens in Anglia et Michaell de Seins manens in Francia et a­lii plures, et ita tamen quod si contingat guerra moueri inter Reges remaneat personaliter quilibet eorum cum eo cui fe­cerit ligeantiā. Whereby it shoulde appeare that of suche as were in allegeaunce to bothe kinges, the kinge shoulde haue no eschetes of their landes. For the woords of the sta­tute bee not onlye ad fidem regis Franciae, but also et non ad fidem regis Ang. ideo quere. And whoe shalbee inheritable at this daie that bee borne in the parties beyonde the sea, and who not. See the statute thereof made in the .25. yeare of king Edwarde .3. de natis in partibus transmarinis.

The thirtenth chapiter.

QVando aliquis qui de rege tenet in Capite in fa­ta decedat, et heres eius ingrediatur ten̄tum qd' antecessor suus tenuit de rege die quo obiit, ante­quam fecerit homagium regi et seisinam suam ceperit per regem, tunc nullum accrescit ei liberum tenemē ­tum. Et si obierit seisitus per idem tempus vxor eius nō ha­bebit dotem de tenemento illo, sicut contingit de Matilda fi­lia comitis Hereford vxoris Manusel marescalli, qui post mortem wilhelmi Marescalli Anglie fratris sui cepit seisinam ca­stri et manerii de Scrogoill, et obiit in eodem castro antequā [Page] intrasset per regem et fecisset ei homagium, et vnde concordatum fuit quód vxor non haberet dotem, eo quôd vir su­us non intrauit per Regem immo per intrusionem, sed hoc non intelligatur de Socagio et paruis tenuris.

This Statute is but an affirmacion of the common lawe, as it maye appeare by the case cōprised in the same which was ruled before the makynge of thys statute and iudged accordinge to theffecte hereof. And this statute seemeth too putte a paine vppon the heires that will entrude before they haue sued theire lyuere, and taketh awaye from them the free holde that the lawe had else vested in them: And yet it is not taken so generallye as the woordes bee, but specially and onelye of intrusions after office founde, and not before: And therefore if the heire enter after the deathe of hys auncestour and before office founde, and the kynge pardoneth him all entries with the profites, this is good and amounteth to a speciall liuere, so that the heir needeth to sue no moe liueries, and yet if thentrusion were after of­fice and then the kinge woulde pardone him it were void, bycause that at the tyme of the pardone he had no freeholde whereuppon the pardon might enure. Like lawe is if the heire before office enter and make a feffement and ye kynge pardone the feoffee it is good,A. 3. H. 7. 2. and yet suche a feffement af­ter office with a pardone were voide, for the reason I haue made before, Like lawe is if thentrie beefore office and the pardone after office this is voide, beecause that by offyce the kinge taketh the possession from the heire or feffee, and then is there no possession whereuppon the pardon maye enure: And so voide. For the office when it is founde hathe relacion from the death of the kynges tenaunt, if it bee so that the kinge doe not release his right beefore th [...]ffice founde,P. 16. E 4. 1. and that appeareth. 16. E. 4. where it is also sayde that the pardone must bee as well of the profites as of the [Page 41] entrie, or elles after office founde the kynge shalbee aun­swered of the profites, and .13. Henrye .4.M. 13, H. 4. there is a diffe­rence put beetwene the pardone that is made to the heyre, and the pardone that is made to the feoffee: For in the case of the feoffee the pardone must bee speciall rehersinge all the matters. Then let vs see further for the endowement, if after the death of the kynges tenaunt the heire dothe not enter but dye before office founde, hys wife shall bee endo­wed because of a possession in lawe that was in hym.

Like lawe is it if hee dye after office founde and beefore anye entrie. Like lawe is it if hee entre before office and dye. But if the kynge bee once seised by offyce and the heire dye before licence, and the nexte heire will enter bee­fore a Deuenerunt sued and dyeth, hys wife shall not bee endowed, for in that case it is an intrusion after office. For when the kynge is ones seised by office this seisine remains till liuerie or ouster le maine be sued,1. H. 7. 3. 4. H. 7. 1. et. 2 M. 38. E. 3. 35. And these cases are 1. et. 4. H. 7. The woordes of the Statute bee further sed hoc non intelligatur de Socagio et paruis tenuris.

These woordes are to bee intended of common Socage, for if hee holde of the kynge in Socage in chiefe and wyll intrude after office, nullum accrescit ei liberum tenemen­tum, no more than if the landes were holden by knyghtes seruice in chiefe.24. E. 3. f. 34, H. 21. E. 3. 2 [...] And it is a generall grounde that in all cases▪ where hee that sueth hys generall lyuerie or ouster le mayne missueth the same and entreth thereby, thys entrye is an intrusion vppon the kynges possession, and hys wyfe of that possession shall not bee endowed as appearethe. 21. et. 24. Edward. 3.

The fourtenth chapiter.

ITem Rex habebit escaetas de terris libere tenentium Ar­chiepiscoporum et Episcoporum quando ipsi tenentes damnati sunt pro felonia facta tempore vacationis, dum temporalia eorundem fuerunt in manu domini regis, confe­rend' cui voluerit imperpetuum, saluo seruicio quod ad dic­tos prelatos inde pertinet et fieri consueuit.

Of this statute I fynde no bookecase, Howbeit the letter of it is verie plaine and needs no maner of exposicion. For it goeth not to anye other eschetes than suche as growe vp­pon offences. And if the crime or offence were done whyle the lande was in the kinges handes, notwithstandinge the partie were not attainted thereof vntill suche time as the landes bee out of the kinges handes, yet the king shal haue the eschete by force of this statute. And heare it appearethe howe the kinge shall not hold the landes forfaited still in his handes but must geue them ouer to hold of them that they were holden of before.

The fiftenthe chapiter.

QVando dominus Rex dat vel concedit alicui ma­nerium vel terram cum pertin̄, nisi faciat in char­ta sua vel scripto expressam mentionem de feodis mill' aduocationibus ecclesiarum, et dotibus cū accidunt ad predictum manerium vel terram pertinen̄ tunc his diebus rex reseruat sibi eadem feoda, aduocationes cum dotibus licet inter alias personas non fuerint obseruata.

It is agreed in .43. E. 3.M 43 E. 3. 19 that by the order of the comon lawe before this statut, if ye king had ben seised of a maner to the which aduousō had bene appēdāt, & had geuen it to me, not­withstanding that in the kinges grant there hadde bene no mencion made of the auowson nor of these woordes cū ꝑtin̄, yet thauouson hadde passed from his highnes by the sayde grant: for in those daies ye king was but a comon parson, & a write of Enter sur disseisin, A. 20. H. 3. ti. assise. in Fitz p. 431 M. 24. E. 3. f. 23 H. 22. E. 3. f 3 & all other accions did lye aga­inst him as against any other comon ꝑson. And therefore in 20. H. 3. A write of entrie was brought againste one suppo­sing yt he had no entrie but by disseisin, which ye king did to the demaundant when he was wtin age, & also Wilby. 24. E. 3. reporteth yt he hath sene a write which was Precipe H. regi Angliae, in place wherof is now geuen Peticion by hys Prerogatiue. And so it is said .22. E. 3. yt in tyme of king H. 3. and before the king should be empleded as any other comē ꝑson. But king E. his sonne ordeined that none should sue him but be driuen to their peticion. Howbeit (sauing refor­macion of these bookes) I think the law was neuer so that a man should haue any suche accion against the kinge. For Bracton which wrote in king H. 3. time or nere thereupon, saith in his .iii. booke vnder ye title Contra quē cōpetit assisa in this wise: Inter cetera videndum est quis sit ille qui deie­cit, Princeps ex potētia, vel aliquis nomine suo, vel iudex qui male iudicauerit, an priuata persona, si princeps vel rex vel a­lius qui superiorem non habuerit nisi deum, contra ipsū non habebitur remedium per assisam, imo tantum erit locus sup­plicationi, vt factum suum corriget et emendet, quod si non fecerit, sufficiat ei pro pena quod deum expectet vltorem, qui dicit, mihi vindictam et ego retribuam, nisi sit qui dicat quod vniuersitas regni et Barronagium suum facere possit et debeat in Curia ipsius regis, sed si alius ex facto et disseisina principis statim vel ex post facto in seisinam institerit, quam­uis talis incidat in assisam et in penam vel tantum ad restitu­tionem secundum quod seisina ad ipsū peruenerit statim vel [Page] ex post facto sine principe tamen conueniri non poterit per assisam, quia licet quodamodo disseisinam fecerit tamen non per se sed cum alio. s. cum principe et ita quod sine eo respō ­dere non potuit, et ita non procedit assisa. Indirecte tamen et quasi ex incidenti et sine breui comprehendi poterit per­sona principis ad hoc quod factum suum emendet, vel in ꝑ­sonam suam redūdabit iniuria manifeste, vt ecce. Esto quod impetretur assisa tantum super eum ad quem res translata est sine principe, et qui tenetur ad restitutionem et ad penam, vel ad minus ad restitutionem, et ipse respondeat quôd sine principe qui fecit iniuriam per se vel per suos respondere non debeat, quia ipse princeps per se fecit iniuriam vel ipsi duo insimul, extunc erit factum et iniuria in manu domini regis, qui dici debet in facto quasi warrantus, et quod tunc poterit si warrantus voluerit factum suum emendare quasi a lege compulsus, et quam in persona sua cum sit ei submissus debet firmiter obseruare. So that by Bracton it appeareth that no accion lyeth against the kinge but the partye gree­ued is dryuen to sue to the king by peticion. But the reason why that aduowsons shoulde passe in the kings case by the order of the common lawe thoughe it were not expressed in the graunt was this I suppose, because that landes or te­nementes were not then compted as thinges that touched the roiall estate or that made the kynges crowne lyke as Liberties or fraunchises did. For the one a comon persone might haue as well as the kinge, but the other none might haue but the king or suche as were able to shewe his grant therof, and therefore saith Bracton in his first booke vnder the title que res dari possint that for landes currit tempus contra regem sicut contra quamlibet priuatam personam Which is as much to say, that if the king had right to any such landes or tenementes and hadde surcessed his time so longe, that it exceeded the time of limitation in a write of right, his highnes hadde lost then his right for euer. And herewith agreeth Briton fo. 29. But that is (saith Britton) of landes, parcell of the kinges eschetes or pourchased [Page 43] landes, and not of the auncient demeasnes of his crowne, for of those nullum currit ei tempus, if hee haue anye righte to demaunde them. So that by Britton this reason will not serue for landes parcel of the crowne. Ideo quere verā rationem. Howbeit since this statute made, what landes so­euer they be those thinges that are comprised in this statut passe not without making expresse mencion therof. Hether­to we haue spoken of the reason why at the common lawe aduowsons shoulde passe by graunt of the manour with­out being named, now let vs see how since the makinge of this statute it shal lykewise passe by graunt of the manour without being expressely named and how not. And if the kinge render vp to him that was in warde, at ful age, his landes, or to a bishopp his temporalties, although he make no mencion of knights fees or auousons, yet all passe ther­with, for like as the kinges seisine in suche case is by these woordes omnia terra et tenementa, without speakinge of fees or auowsons, euen so being sued out of his handes by these woordes, omnia terre et tenementa, Liuerie p. 7. & T 16 E. 3. p. 30. fees and au [...]wsōz do passe without making any mencion thereof. And this appeareth .5. E. 3. & .16. of the same king. Where after the death of an ydeot, the king rendred againe the lands to the heire not making mētion of fees or auousons, & yet he had them. And likewise 41. et 44. E. 3. the kinge graunted the tempo­ralties to one that was elect bishop before he was cōsecrat,H. 41. E. 3. f 44. E. 3. f. 22. & aiudged yt fees & aduousons passed wtout making any mē ­cion therof, & yet at ye time of the graunt he was not bishop, for he lacked consecracion. And ye reson in all these cases is, for that ye king was but seised in another bodies righte and by his liuerie he geueth nothinge vnto them but only resto­reth thē to their right they had before. Like law should it appere to be by Finchden .29. E. 3.H. 29. E. 3. in Fitz. ti. Qua­re impedit p. 190. If auousō of a church be ap­pēdāt to a Priorie which Priorie is seised into ye kings hāds by resō yt an aliē is patron of it, & afterward ye king dimiseth [Page] the saide Priorie cum pertinen̄, not makinge mention of thauouson vnto the saide Prior yelding a rent, to haue & to hold the same during the warre. And his reason is this, for that ye right & freehold in this case remaineth still in ye Pri­our notwithstandinge any such seisin, & the kinge is but to haue an annuel profit therof, & no right, but if anye bee to sue dower or liuerie wt a particion out of the kinges hādes they by that cannot haue thauouson if mencion be not ther of made, no more than they can that claim by Graunt: and yet the king rendreth them the thing in respect of a right be fore, as he doth in ye other cases. But what then? they claim not ye whole lande that is in the kinges hands but only parcell therof, & then thauouson euermore abydeth with that that remaines, if expresse mencion be not made therof, and so not like the cases before where the king makes liuerie of the whole. And this case appeareth also in the said booke of 5. E. 3. And note that in al cases wher ye king seiseth a thing as his owne proper right as he doth in the case of wardes, eschete, & such like, there nothinge passeth by Graunt of the appurtenance if expresse mencion be not made of the thinge that is appurtenant by name: & therfore the case was .29. E 3. That where auowson of a church did belong to a Priorie which Priorie was seised into ye kings hāds ratione guerre, & letten againe to ferme for a rent to ye Prior, & afterward the king graunted away the patronage of the Priorie to a man & to his heires, & the custodie (duringe the warre) of ye Priorie with al that belongeth to the same & of the rent re­serued wt al the profites of ye Priorie yt the king had seised, & yet thought ye thaduousō passed not, for yt it was not named. But if there be woordes in the kings grant that do amount to as much as thexpresse naming of ye thinge or conteruaile as much, then the thing passeth as farre fourth as if it were expressely named. And therefore if a maner to the which a­uowsō is appendant be in ye kings hands by eschete or pur­chase & the king geueth the manour as fully & as wholly as [Page 44] suche a one helde the same before theschete or pourchase, in this case thauouson passeth, & so it is agreed .43. E. 3. fo. [...].

And learne forasmuch as this statute maketh mēciō but of three thinges, that is to say, knights fees, auowsons of churches, & dowers, whether in such case any other thinge than auouson which is appendant or appurtenant should passe by woords cū ꝑtin̄ without naming of it.P 18. H. 6. 1 [...] For it appereth .18 H. 6. that where a Lete was wtin a towne & the king gran­ted ye towne cum ꝑtin̄ not naming ye Lete, & it was thought the Lete should passe thereby. But ye reason was there be­cause it was parcel of the towne, & that ye is parcel or incidēt to an other thing, passeth by graūt of ye king wtout making any mencion therof. And therfore if ye king be seised of a co­rodie by reason yt he is a patron of a Priorie, & graunteth a­way ye patronage wtout making any mencion of ye Corody, yet ye grātee shal haue ye corodie: & so it is aiudged .26.26. li. ass. p. [...]3 li. ass. & yet ye kings grātee of a ward shal not haue gard ꝑ cause de gard if expresse mention be not made thereof. And so is it if one bee to haue restitucion of the auouson vna cū exit' & the church becometh void, & the king makes him restitucion wt the meane issues & profits taken, yet he shal not haue this a­uoidance yt is so fallen wtout expresse mencion be made ther of in his restitucion, as appeareth .18. 24. 39. et. 46. E. 3.P. 18. E 3. 21. P. 24. E. 3. 2 [...]. M 39 E. 3. 2 [...]. P. 46. E. 3. in Fitz. Graunt p. [...]0. And yet if ye king be seised of auowsō & the church becōmech void & he granteth ye auowson away, his highnes shal not nowe put nor take the benfite of ye auoidance, as appereth .9. E. 3 in Fitz. ti. Presētmēt al esgl' p. 5. Therfore enquire what the reson is of these diuersities & what is ment by these wordes in ye statut Dotibus cū acciderit ad predictū maneriū vel terram ꝑtin̄. For as I suppose those wordes serue to none o­ther purpose but wher ye king is to assigne dower, & he grā ­teth ouer ye maner Durante minore etate of the heire yt is inward to another, this patentee shal not haue thassignement of dower if menciō be not made therof in his patēt. Howbeit learne & enquire what is ye true meanīg of the said wordes.

The laste chapiter.

ITem Rex habebit omnia catalla felonum damnatorū et fugitiuorum vbicunque fuerint inuenta, et si ipsi ha­beant liberum tenementum tunc illud statim capietur in manum domini regis, et Rex habebit omnes exitus e­iusdem per vnum an num et vnum diem, et tenementum il­lud vastabitur et destruetur de domibus, boscis et gardinis, et aliis quibuscunque ad predictum tenementum spectanti­bus, exceptis hominibus quorundam priuilegiatorum inde per regem. Et postquam dominus rex habuerit annum, diem et vastum, tunc reddatur tenementum illud capitali domino feodi illius nisi prius faciat finem pro anno die et vasto de consuetud' tamen dicitur quod post annum et diem terre et tenementa felonum in Gloc reddentur et reuertentur proximo heredi, cui debuerant descendisse si felonia facta non fu isset, Et in Kent in Gauelkinde the father to the boughe, the sonne to the ploughe. Ibidem omnes heredes masculi parti­cipabunt hereditatem eorum, et similiter femine: sed femine non particibabūt cum masculis. Et mulier habebit post mor­te viri medietatem pro dote sua, Et si mulier fornicetur in viduitate perdet dotem suam, vel si sit desponsata viro. Beefore this statute Glanuil did write in this wise in his vii. booke vnder the tytle De vltimis heredibus. Notandum quód si quis de felonia conuictus fuerit, vel confessus in cu­ria et de domino rege tenuerit in Capite, tunc tam terra quâm omnes res mobiles sue et catalla penes quemcun­que inueniantur, ad opus domini Regis capientur sine omni recuperatione alicuius heredis sui, si autem de alio quâm de rege tenuerit is qui vtlagatus est vel de [Page 45] de felonia conuictus tunc quoque omnes res eius mobiles Regis erunt. Terra autem per vnum annum remanebit in manu domini regis. Elapso autem anno, terra eadem ad rec­tum dominū scilicet ad ipsum de cuius feodo est reuertetur, veruntamen cum domorum subuersione et arborum ex­tirpatione. Et generaliter quotiescunque aliquis aliquid fece­rit vel dixerit in curia propter quod per iudicium curiae ex­heredatus fuerit, hereditas eius ad dominum feodi de quo illa tenetur tanquam Eschaeta solet reuerti. Foriffactura au­tem filii et heredis alicuius patrem non exheredat, neque fratrem neque alium quam se ipsum. Préterea si de furto fuerit aliquis condemnatus, res eius mobiles, et omnia cat­talla sua vicecomiti prouinciae remanere solent, terrā autem si quae fuerit dominus feodi recuperabit statim non expecta­to Anno. By this it should appere that in Glanuiles tyme, for theft onelye the shirife shoulde haue the goods that were forfaite, and that as it shoulde seeme to his owne vse, and not to the kinges. For hee saieth, the lordes in that case shoulde recouer their eschetes before the yere, daye, and the wast. Howbeit, the statute made since that time geues all felones goodes to the kinge without anye exception. And hereuppon it is to be seene firste what is comprised in thys woorde catalla. Catalla is a generall woorde whiche com­prehendes as well Chatels mouable as not moueable. For leases for terme of yeares are within this woord catalla, as appeareth by Bracton in his seconde booke in the tytle of Forfaiture of Felons sayeng quod terminum annorum erit domini regis, vt catalla. Quia accipit terminum ad simi­litudinē catallorum. And therewith agreeth the booke in. 39 H. 6.39. H. 6. 34 Also vnder this woorde catalla is taken the issues and profites of landes and tenementes of them yt flye for felony vntill suche time as they bee attainted or acquited. And like wise of the Landes and tenementes of clerkes conuicte, vntill suche tyme as hee hath made hys purgacion, I [Page] meane lands & tenements as wel of their wines right as of their own right,P. 4. E. 2. in Fitz. Forfai­ture. p. 16. 16. E. 3. Co­rone. p. 356, 296. et. 344. & so is the booke. 4. E. 2. et. 31. E. 3. Also vn­der this word contra are takē the emblements yt were gro­wing vpō the ground at the time yt the forfaifure of ye goods first began to take place, as appereth 3. E. 3. Also vnder this word Catalla is cōprised a right of acciō to goodes, as wher goods be taken away wrongfully frō the felon, or wher one is endetted to the felon by obligacion,P. 6. H. 7. in Fitz ti. For­faiture. p. 12. M. 19. H. 6. fo. 47. et H. 30, H. 6. fo. 5. P. 28. E. 3. 92 et t. Trauers 32. lib. Ass. p. 33. or is accomptable to ye felon for any receites or otherwise, & this appeareth. 6. H. 7. et. 19. H. 6. Also vnder this word Catalla, is takē sometims goodes wherin the felon hath no propertie, as if a man de­liuer money out of a bagg, or corne out of a sacke to one to kepe which is afterwardes attainted of felonye, the money or corne in this case is forfaited. Like law it is if a thief that steales goodes seuerally from sundry persons & afterwarde is attainted for one of ye said felonies, by this one attainder the goodes that are stolen from the other bee also forfaited to the king. Like lawe is it if one steale goods and before he be attainted therof he killeth him selfe, or dyeth in prison or abiures the realme confessinge an other felonie then that for the which he fled to the churche, in these cases he forfai­teth the gooddes that hee did steale. So it is if the wife kill her husbande, shee forfaites the goodes of her hus­bande.44. E. 3. f. 39. 26. li. ass. p. 32 And these cases ye maye see in the title of Co­rone in Fitz. p. 317. 323. 334. 318. 162. 319. 380. 379. 423.

And in the title of Auowrie p. 151. And in the title of Forfai­ture p. 15. Then let vs see further what may be saide vppon this word Felonum. If thoffence that is committed be felo­ny, then is it properlye within the compas of this woorde Felonum, & he that committes thoffence shalbe saide Felo. Notwithstanding that he therefore shal not suffer death: as in a case where one killeth another se defendendo or by misaduenture, this offence is felony, and hee that committes it shal forfait his goodes notwithstanding that hee obtayne [Page 46] pardon of life.Coron̄. 116. Felonie. 599. Dower. 183. For it was at ye kings pleasure to graunt pardon or not. And this appereth. 15. E. 3. But so shal not he that killeth one that woulde robbe him in his house, Or the officer that killeth one that will not be rested, nor hee that killeth any thing not yet borne, as a childe in his mothers bellye, nor the parsone that is straught that killeth another in his madnesse. For in all these cases it is not felonye.

The woordes bee further, Damna torū & fugitiuorum. Sometimes the king shall haue his chatell, although he be not condemned of the felony, as if a man be arrested for fe­lony and afterwardes breakes the arrest and the other ere hee can take him againe killes him, in this case hee that is killed shall forfaite his goodes, and yet hee was neuer at­tainted of thoffence.Corō. p. 312. et. p. 290. Like lawe is it if bee were killed in ye first arrest where he woulde not bee arrested. And this ap­peareth. 3. E. 3. Howbeit since that tyme there was a sta­tute made. anno. 34. E. 3. cap. 12. Whiche seemes to alter the lawe in these cases if it bee not that you will say peraduen­ture that he shall forfait them quia fugam fecit. Ideo quere. Hee that is felo. de se shall forfaite his gooddes and yet hee was neuer attainted. Like lawe is before,H 34 E. 3. in Fitz. Eschet. p. 10. of the clerk con­uict. And so is it of suche as stande mute or challenge aboue the nomber of. 2 enquestes, as appeareth. 34. Ed. 3. Then further, this woorde fugitiuorum is taken suche as flee or withdraw themselues for the felonye that they bee endy­ted, appealed or accused of, for that makes a great presump­cion against them, as Bracton saieth in his seconde booke vnder the title Ad quae restituaturvtlagatus, and for that pre­sumption sake shall the vtlawrie proceade whether hee bee giltye of the felonye or not. And also saieth hee in the saide booke quód vtlagati de felonia gerunt caput lupinum, & se­cum suum portant iudicium, ita quod sine iudiciali inquisiti­one pereunt, quia merito sine lege pereūt, qui secundum le­gem viuere recusauerunt, et hoc ita si in capiendo fugiant [Page] vel se defendant. Si autem viui capti fuerint vel se reddide­rint, vita illorum et mors est in manu domini Regis, et qui taliter captum interfecerit respondebit pro eo sicut pro a­lio nisi sit in locis vbi consuetudo se habeat in contrarium. videlicet in com̄ Hereford et Glouc̄.

And in an other place hee saieth, Quod nullum crimen maius inobedientia, quia pro contemptu et inobedientia po­rerit quis excommunicari, sicut pro quolibet peccato mor­tale, cum omnes subditi debeant esse Regi tanquam precel­lenti, maxime in honestis, et ducibus eius tanquam ab eo missis, et sic concordat lex diuina aliquantulum cum hu­mana. And also saieth quod vtlagatus de felonia foriffacit patriam et amicos, forisfacit quae pacis sunt, forisfacit quae le­gis sunt, forisfacit quae iuris sunt, et possessionis, et forisfacit actionem ante vtlagariam sibi datam. Thus by the waye haue I noted vntoo you suche thinges out of Bracton, as mee seemeth bee notable, and make somewhat for this purpose: Althoughe I needed not to haue gone so farre as to outlawrie for exposition of this woorde fugitiuorum, but might haue rested at the flyenge. For if one flee for the deathe of a man, and this presented before the Coro­ner, hee shall forfait all his goodes that hee hadde the daye of that presentment or at anye time since, till hee bee acqui­ted of the saide deathe. And notwithstandynge that an enquest vppon hys arrainement doth afterwarde acquyte him,Forfaiture, 32. et. 35. Coron. 296. &. 344 and also fynde that hee did not flee, yet his goddes re­maine still forfait, as it appeareth. 22. lib. Assise. p. 96. et. 3. Edwarde the thirde. Lyke law is it where one arrayned of felonye beefore iustices is founde not giltye of the felo­nye, Howbeit it is founde that hee withdrewe himselfe for the saide felonye, nowe shall hee forfaite his goodes but no profites of landes as hee shall doo in the other case where it is found before the Coroner, For when the forfaiture [Page 47] shall haue no further relacion, but to the daye of the pre­sentment and not to the daye of the flyenge, then when at the same daye hee is acquited of the felonye, then is the kynges title gone as to the landes and so consequentlye gone as to the issues. And this appeareth. 3. Edwarde. 3.Coron. 344

Also there is an other maner of fleeynge, for the whyche a manne shall forfait his goodes, and that is where in ap­peale or enditement of felonye, the partye that is appea­led or endited will not appeare, but suffer the exigent to be awarded against him, hee thereby forfaiteth hys gooddes and the profites of hys landes, whiche he hadde the daye of thexigent awarded, or at anye tyme after. And notwyth­standinge that hee afterwardes happen to bee acquyted of the sayde felonye, yet the forfaiture remaines, For when hee tarrieth the awardynge of thexigent it appearethe of recorde that hee hath withdrawen hymselfe, and thys you shall fynde in. 22. lib. Ass. pl. 81. and 41. li. Assise.41. Ass. p. 18, Howbeit herein is there heede to bee taken lest there bee errour in the awardynge of the saide Exigent: For if there bee, hee shall then forfait nothinge, as if the exigent bee a­warded againste the accessorie beefore it bee awarded a­gainst the principall, or beefore the principall bee attayn­ted, or if an exigent bee awarded againste one that hathe a charter of pardone for the felony of elder date, than is the awardynge of thexigent and hath founde suertye accor­dynge to the statute and the same retourned into the chan­cerye before thexigent awarded:P 43 E. 3. [...]. 17 For in these cases he shall auoyde the forfaiture vppon the matter shewed.

Contrarye lawe it is if after the exigent awarded the ap­pelle doe abate for insufficience, or for that that hee that is outlawed was emprisoned meane betweene the awar­dynge of the exigent and the outlawrie pronounced.

For in that case if he reuerse the vtlarie, yet his goodes re­main still forfait.Forfaiture .31. et .19. Howbeit if he were emprisoned at yt time of the exigent awarded otherwise it is, & this appereth .19. E .3. and .30. H .6. Also it is to bee noted that one maye flee for felonye and yet hee shal forfait nothinge, as where one is arrested for suspicion of felonye and escapes, yet for thys hee shall not forfait his goodes if hee were not taken with the maner, or at the sute of the partie, or endited of the same as it appeareth .42.Coron. 224. li. Ass. Quere if hee bee endited after­warde whether hee shall then forfait them or not. Also an accessorie after the felonye committed shal forfait nothinge vppon a Fugam fecit. Otherwise it is of accessories beefore the felonye committed,Forfaitur. 10 as it appeareth .4. H. 7. But he that withdraweth him selfe but for Petit larcenie shall forfayte his goodes,Coron. 406 as it appeareth .8. E. 2. tamen quere. And note for a generall rule that the towneship where the goodes of felones or fugitiues bee founde shal alwaies aunswere the kinge of them, and the shiriue, of the issues and profites of the landes: and therefore the towneship may seise them for the kinge. For it is no plee for them to saye they were not deliuered vnto them.22. Ass. p. 81. 11. H. 4. 39 And this appeareth in Fitzherbert, in the title of Corone pl. 390. et p. 366. 300. 347. 290. 308. 22. and in the title of forfaiture pl. 32. But at what tyme the goods of a felone or fugitiue shalbee seised it is further to bee seene and howe the attainder shall haue relacion. When it is founde by enquest beefore the coroners quod fugam fecit, by and by the shiriue shall seise his lands intoo the kynges handes by woorde onelye without taking anye enquest for the same purpose, and also shall seise all his goodes into the kinges handes, and take an enquest as well of free menne as of villeines to apprise them and cause them prise to be en­rolled to the coroners and to deliuer them to the towneship to make aunswere thereof to the kynge, And this appereth 22. lib. ass. P. 96. And herewith agreeth the statute of Coro­ners [Page 48] and also Britton. fo. 4. Where you shall see this mat­ter set fourthe more fully. And in .43.M. 43. E. 3. fo. 21. it is sayde that the kinges minister may seise ye goods of a felō before attaīder, & if the partie finde suertie then he to leaue them in the custo­die of the partie or els in the neighbours custodie. For the sayd minister ought not to carrie them awaye with him.T. 7. H. 4. fo. 41. & 7. H. 4. Hull sayeth yt yf one bee endited of felonie, yet till hee bee attaīted his goods shal not be remoued out of his house, but in the meane time shalbe in his neighbours keapinge and he to be found of the same. And in the Register there is a write quod ten̄ta et bona taliter capta videantur, imbre­uientur et saluo custodiantur per balliuum ipsius capti qui se curitatem regi inueniēt ei respodēd' si &c. saluis inde ipsi capto et familie sue necessariis quam diu fuerit in prisona. And so is Britton. fo. 17. Howbeit now by ye statut made in the first yere of kinge Richarde .3. the thirde ca. it is ordeined yt none shall seise the goods of any person arrested or emprisoned before that they be attainted, or that the goods bee otherwise forfaited, vpō peine to pay the double value thereof. This statute extendeth not to any other but too such as be in prison: For by the statute de proditionibus 25. E. 3. ca. 14. If one bee endited of felonie which is not emprisoned, the sheriue at ye second Cape shal seise his goods, and yet they bee not at that time forfaited. And also the statut of .R. 3. doth not extend to landes but onely to goodes. Then for the relacion, as for the goodes it hath no relacion but onely from the daye that the forfaiture is presented or verdit geuen, and therfore it is sayd in 33. E. 3. that if he sell them before hee bee attainted the sale is goode,Forfeture. 30. 30. H. 6. f. 5 38 E. 3. fo. 37. Corone. 290. et 285. but for landes it hathe relacion to yt daie of the felonic committed, be it that the attainder bee by verdite or vtlarie as it appereth .38. E. 3. et 30. H. 6. or be it that he bee attainted without proces of law, as in the cases aboue remē ­bred where he is killed in the fleing, as appereth 3. E. 3. And note that if thattainder and the office found of his landes be [Page] both wtin the yere of the felonie first cōmitted yt it shal haue no relacion for that yeres profites, otherwise it is if it be af­ter ye yere, as it appereth 3. E. 3. This boke must be vnder­stāde as I take it where the attainder & the office be before any daye of paymēt within yt yere. The words of this chapiter be further. Et si ipsi habeant liberū ten̄tū tunc illud statī capietur in manum domini regis et rex habebit omnes exitus eiusdem per vnum annū et vnum diem et tenementū illud vastabitur et destruetur de domibus boscis et gardinis et a­liis quibuscunque ad predictum tenementum spectātibus: It should appere by Glanuile in the beginning of this chapiter that the common law was as much before the making herof in all cases of feloni sauīg for theft, in which in ye king had no yere and daye. Howbeit after Glanuiles time the statut of Magna carta was made which sayd in the 22 chapter therof. Nos non tenebimꝰ terras illorum qui conuicti fuerint de felonia nisi per vnum annum et vnum diem et tunc red dantur terre ille dominis feodorum. By this it should seme this statute doth remitte ye wast because it speaketh nothing of it: or ells perauenture you will saye that this word Nisi argues and proues yt the kinge before the statut of Magna carta might haue holdē it as longe as he would, but to the cō trarie of that exposition is Glanuile, as it appereth before: And also Bracton which wrote somwhat after this tyme: For by Bracton in his second boke it appereth that before ye making of the sayd statut of Magna carta the king had no­thinge els but the wast, and to thentent he should remitte ye wast, the yere and day was afterward geuen to the kinge: For these be his words in the title of Vtlarie. Si vero terrā liberam habuerint vtlagati, statim capienda est in manum do mini regis et tenenda per vnum annum et vnum diem, ad capitales dominos post terminū illū reuersura si de alio tenue­rit quā de rege, si autē de rege tunc erit Eschaeta ipsius regis, et hoc verū est quod per talē terminū remanebit in manu do mini regis nisi ipse capitalis dominus vel alius finē fecerit protermino regi habendo, fed quesit causa quare terra remane [Page 49] bit in manu domini regis, videtur quod talis est, quia reuera cū quis fuerit cōuictus de aliqua felonia in potestate domini regis erit prosternandi edificia, extirpandi gardina, et arandi prata, et quoniā huiusmodi vrge bantur in graue dānum do­minorū, pro cōmuni vtilitate prouisū fuit quod huiusmodi dura et grauia remanerent, et quod dominꝰ rex propter hoc haberet cōmoditatē totius terre illius per vnū annū et vnū diē, et sic omnia cū integritate reuerterētur in manus capita­liū dominorū, nunc autē petitur vtrū .6. finis pro termino et similiter pro vasto. Et nō video rationē quare, nisi quod ter­minus bene poterit esse per se sine vasto eo quod fugitiuus et vtlagatus non solū delinquit erga eū qui sequitur et appel lat, sed erga regē cuius pacē infrīgit contra fidē suā cui tene tur, quia quilibet cū faciat sacramētū, iurat salua fide domini regis. Thus our autors agre not vpō this yere & day, for Bracton is contrarie to Glanuille yt wrote before him. Howbeit Brittō which was likewise before ye makīg of this statut of Prerogatiua agreeth wt Bracton, as it appereth in his boke fo. 14. adding further yt the kinge shal not haue ye yere and day of land yt is holden only for terme of life or yeres, or by freshe disseisin, or in fee ferme or in mortgag. And so is Bracton also therwt agreing in his secōd boke but now sins the time this statut of prerogatiua was made, which geues the kinge as you may perceiue bothe the yeare day & the wast. And first he saieth quod rex habebit omnes exitus eiusdē per vnū annū et vnū diē. By this it should appere yt the kynge should not haue the issues of ye land but by a yere & a day, but yet it is clere yt he shal haue the issues also from ye time of ye felonie done vntil ye time his highnes hath had ye yere day & wast, & not ye lord (allowing yt that is to be alowed for ye finding of ye prisoner) for it can not be intēded yt ye lord shoulde haue ye meane profits, because the lād shalbe deliuered vnto him wtout profit, yt is to saye wasted & destroyed.3. E. 3. in Fitz ti. Corone 290. 49. E. 3. fo. 1 [...] And ther­wt agreeth the boke in 3. & 49. E. 3. And there it appereth yt if an office be foūd 20. yeres after the attainder ye kinge shal haue the profites from ye time of the felonie cōmitted vntill [Page] the yeare and daye next after the office founde. For though the lord be entitled to haue theschete, yet the kinges title for the yeare daye and waste goeth beefore the lordes: For the wordes bee Postquam dominus rex habuerit annum diem et vastum tunc reddatur ten̄tum illud capitali domino Also by this woorde Reddatur it semes the lord can not en­ter intoo his esc [...]ete after office found, but is driuen too sue an ousterle main for the same out of the kinges handes, as it appereth 8.8. E. 2. in Fitz ti. Tra­uers Pl. 48. E. 2. but if a stranger abate before office, the lord shal haue a writ of eschete against him and recouer, and yet that notwithstanding when an office shalbe founde, after­warde the kinge may seise for the yere, daye and wast, and shalbe aunswered of the mesne profytes, like as it is when the kinges tenant in chief dyeth his heir of full age an estrā ger abateth, the heier maye haue assise of mort dauncestore if he will, and recouer against the abator, and yet vpon an of­fice found afterward the kinge shall seise for primer season and be answered of all the meane profites, and the heir dri­uen to sue liuerie. Further then let vs see in what cases the kinge shall haue annum, diem et vastum and in what not. The kinge shall not haue annum, diem et vastum of clerks cōuict after verdit, because hee forfetes no land. Like lawe is it of lands in Gauelkinde where the father is hanged, but otherwise it is if he be outlawed or abiured for felonie, for there the kinge shal haue the yeare, daie & wast, and this appereth 3.3. E. 3. in Fitz ti. corone. P. 332. et Prescription. P. 50. E. 3. et 8. E. 2. If the husband be atteinted of felo­nie the kinge shall haue the yeare, daye and wast of the lāds of the wife, and yet in ye case the lordes shall not haue theyr eschetes. But what then? the husbād might haue done wast and the wife had had no remedie for the same, and by the same reason the kinge maye doe as much, and this appea­reth 3.3. E. 3. in Fitz ti. corone. P. 327. E. 3. And also in Bracton in his second boke. And al­so it shoulde there appeare that the wiefe is driuen to sue anouster le main after the death of her husbande. If one be arested [Page 50] for felonie & brekes the arest, so yt in the pursuyt of him he is killed because hee woulde not otherwise be taken,3. E. 3. in Fitz ti. Corone. P. 312. et 290 et 308. the king in this case shal haue the yere, day and wast, as it ap­pereth. 3. E. 3. If a man cōmit felonie and hathe his charter of pardon, yet the king shal haue the yeare, day & wast and the lordes theyr eschetes, & this appereth 3. E. 3. for the pardō doth not restore him but to the lawe. For though the kinge would pardon him with words of restitucion, yet his grace could not therby restore him to the lāds holdē of other. And note yt the king shal haue the yere,3. E. 3. in Fitz ti. Corone. P. 310. day & wast of lāds in an­ciēt demesne if it so be yt the tenāt myght haue sold the said lands against the will of the lord, as it appereth. 3. E. 3. and that notwtstanding yt the sayd lands were alwayes vsed to be surrendred by ye rodde & to passe by surrēder. The words of the statute be further Exceptis hominibus quorūdā priui­legiatorū ind [...] ꝑregē. 46. E. 3. f. 14. 1. H. 6 fo. 12. M. 8. H. 4. f. 1 Corone. 31. That is as much to say except such as haue Bona et cattalla felonū by the kynges graunte for a man can not prescribe to haue Bona et catalla felonū, as appereth. 46. E. 3. 1. H. 7. 8. H. 4. nor none may haue this prerogatiue of yere, day & wast but only the kinge although hee would claime it by charter frō the kinge or otherwise, as it appereth 3. E. 3. But when the king is seised of it he may cō mit it ouer, as appereth by Bracton in his sayd 2. boke. But if the land wherof the kinge should haue the yere, day and wast be vnder the yerely value of iii s .iiii. d it is vsed to bee remitted for the smallnesse and simplenesse of the thinge, as appereth. 3. E. 3.3. E. 3. in Fitz ti. Corone. P. 327. for it shoulde cost more the suing of it out of the kinges handes than the thing is worth. And note the custōe of Gloc' comprised in this statut, wherby it should appere that notwithstanding any such custome yet the king should haue annū et diē but not so of lāds in Gauelkinde as I haue sayd before.

¶Proces to bee sued after the deathe of the kinges tenaunt in chiefe.

By a statute made in the 33. yere of the late kinge of most famous memorie, H. 8. the 22. chapter it is or­deined and prouided amōge other things, that no person or persons hauing lands or tenemēts aboue the yerely value of fiue poundes shal haue or sue any liuerie before inquisitiō or office foūd before theschetour or other commissioner or commissioners by vertue of the kinges writ or commission too bee directed out of the kinges chaūcerie or other courtes hauing authoritie to mak suche writes or commissions for suinge of liueries, which writs or commissions shal not passe out of the chancerie nor any other courts but by a warrant or bill too bee assigned and subscribed with the handes and names of the master of the kinges wardes and liueries, surueiour of his liueries, or the attourne and resceiuor of the court of the wardes and liueries, or three, twoo, or one of them, to bee directed & deliuered to the chanceller of England or to any other chanceler or officer hauīg power to awarde such writes: And if ye lands or tenements wherof any inquisition is to be had by vertue of any such writ or commission excede the yerely va­lue of fiue poundes that then such as sue for such writes and commissions shal pay for the seale and writing therof such fees as hath ben accustomed. And if ye sayd lāds & tenemēts wherof any such inquisicions and offices ar to be found by vertue of any such writ or commission excede not the sayde yerely value of v pounde, thē such as shal sue for such writs or commissions shall paye for the seale of euery of them vi. d and for the writinge vi. d and not aboue. This statut doth [Page 51] not set fourth the name of the writ or cōmissiō that shalbee sued, howbeit these words that follow, that is to sayr (for su­inge of liueries) do somwhat open the minde of the makers of this statute, and declare that their meaninge was of the diem clausit and such other writs or cōmissions as serue for that purpose, and not of euery writ or cōmissiō, for so might an office be found by a wrōg writ or cōmissiō, which should want mater or be other wise insufficient to make liueries. But learne and enquire if after a good writ or cōmissiō su­ed fourth, the office that is found is not sufficient, whether the partie shal haue his liueri or not without suing a melius inquirendū, or a new office, because that some parauenture wil say yt the words of the statut be performed yt is to wite an office or inquisition is found. But to that it may be an­swered and sayd that yt it is no office when it is insufficient at least wise toward the partie that should sue liuerie ther­upon, although it be a good office toward the kinge if any thing therin conteined be for his benefit. And learne also if the kinges tenant dye seised of landes in diuerse counties whether by force of this statut he shal cause an īquisitiō or office to be foūd in eueri coūtie where ye lands lye, for so is it vsed to be done vpō al general liueries, & he that sueth his general liuerie otherwise missueth the same, and is an intruder vpon ye kīgs possessiō: howbeit perauēture you wil say yt if the lāds excede ye yerely value of .xx. marks he must sue a specyal liuerie & not a general, & therfore it makes no ma­ter for the inquisitiō or office, & that the words of the statute wil beare it wel enough if there be but one office foūd. But as to yt it may be sayd, yt the meaning of ye statute was not so, for ye kinge can neuer be fulli ēformed of his title vnlesse ther be an office foūd in euery shere, & also by finding of se­ueral offices one record may be better for the kinge then an other, whereof his grace may take auātage, for the best shal be takē for ye kinge. Thus it appereth by statut how that of [Page] landes aboue the yereli value of vli. inquisiciō must be made and an office found after the death of the kinges tenant be fore liuerie can be had: and that must be by a writ of diē clau sit extremum, for that is the proper writ that is to be sued for that purpose if any sute be made within the yeare after the kinges tenants death, or a special commission in the nature of the writ of diem clausit. For vpon a general cōmissiō to enquire generally of all wards no perticular person can haue liuere. And if he tarry till after the yere, then he cānot pursue any of these, but for his remedie must sue a writ cal­led Mandamus or a commission in nature of that writ, and therupon to cause an office to be foūd and so to haue liuerie: But if an office be once found by diem clausit and the heier dieth in the kinges ward, his heir must sue Deuenerunt & no Mandamus although it be after the yere of ye death of him that dyed in ward, and so is the rule in the register. Sume­tymes it happeneth yt after deliuerie of the writ or commission and before office found theschetor dyeth or is remoued frō his office, in which case then ye proces yt is awarded to his successor is a writ called Datur nobis intelligi, but if office be foūd before his death or remouing, which office is not returned, then shall therbe a certiorari awarded to his executors to returne the same. For it is a mater of record as sone as ye iurrors haue put their seales vnto it, notwtstanding it be not returned. And note ye thawardig of this writ of diem clausit or special cōmissiō is peremptorie to him ye sueth for it. For if he lese it or be taken frō him with force he gettes no moe writs or cōmissiōs for the lands in that coūtie and this ap­pereth in the new Natura breuiū fo. 2 [...], Howbeit in 14. E. 4 it is touched by the waye that in such cases he should haue a new writ.H. 14. E. 4. so. 5. ideo quere. But after office ones foūd by a diē clausit or specyal commissiō as well the kinge & partie ther­by are boūd as euery other strāger: for somuch lādes as are comprised within the office, and neither the kinge ne yt par­tie [Page 52] nor any other shal haue any moe writs or cōmissiōs to enquire any further of these lands, except it be in such cases as I shal hereafter recite, for so the lawe shoulde neuer haue end, but newe heires might be founde euery daye by office which were incōuenient and the king should not knowe to whēe to make liuerie, & this appereth .14. E. 4. and 2. et 4.14. E. 4. f. 5 2. H. 7. f. 2. 4. 4. H. 7. f. 13. H. 7. But where after office found it is surmised for ye kinge that his highnes hath a better title than was found for him by the first office, whether ye mater surmised may stand wt ye mater foūd by the first office or not, yea although it be mere cōtrariāt or repugnāt it is not material: But in such cases a new writ or cōmissiō shalbe awarded. As take the case to bee this. By the first office it is found the kinges tenaunt in chiefe dyed seised his heir wtin age where in dede hee dyed without heir so yt therby the lands ought to haue escheted to the kinge, or that he was tenāt in taile & dyed without issue of his body, wherby the lands ought to haue reuerted vntoo the kinge, in these cases the court shal awarde a new writ or cōmissiō for the kinge. Like law is it where the daughter is foūd heir by office & afterward ye sonne is borne, or where ther is but one daughter found heire by office where there ought to haue ben two foūd heires, or if by ye first office one is foūd heire & of ful age which is not heir in dede, but an o­ther is heir which is within age: In all these cases ther shal be a new writ or cōmissiō awarded Causa qua supra, 14. E. 4. f. 5 4. H. 7. f. 13. as it may appere .14. E, 4. et 4. H. 7. 12. R. 2 et 30. li. ass. yea and a more strōger case as it should appere in the new Natura breuium fo. 2 [...]. fo. 2 [...]2. et f, 295. that is to say, where the kinge was to haue no benefit at all more then he had by the first office, and yet a newe commission was awarded, and therfore the case was there, the second brother was founde heir by the first office & of ful age, now the eldest had a com­mission being also of full age to finde him heir, and ther­vpon had his liuery. So is it where 2. be foūd daughters and heirs to one mā of certain lāds where in dede parcel of the [Page] said land was geuen to one of the said. 2. daughters in frāk mariage, now she that claimed the frank mariage had a specyall cōmission to enquire of the sāe: and yet by that second office ye king had no benefit ideo quere. For this Natura breuiū semeth to impugne ye bokes before rehersed. And like as he may pray a newe writ or cōmission in ye cases aboue re­hersed before liuerie had, euen so may he do in the like cases after liuere had if the liuerie be a general liuerie, & therupō as sone as the title is found the king shal rescise: but not wt ­out a Scire facias because the statut made at Lincoln hath so prouided as I shall open more fully when I come too that place, and yt in all these aforesayd cases a new diem clausit may be as wel awarded as a new cōmission, as it appereth titulo Trauser in Fitz. pl'. 28. anno. 29. li. Asss

¶What thing shalbe in ye king without office or seasure & what not, and where by an office only without any seasure or other proces the kinge shalbe in possessiō and where not, and where he shalbe in possession without an office but not before a seasure, and how the kinge may be ētitled by any other recorde as well as by an office, and where a man may enter as well vpon the kynges possession as any other.

By a statute made the .33. yere of the late kinge. of famous memorie H. 8. the 20. chapter it is among other things prouided that if any person or persons shalbe attainted of hye treson by the course of the comon lawes or sta­tutes of this realme, that in euery such case euery suche at­tainder by the cōmon law shalbe of as good strength, value force and effect as if it had ben done by authorite of parlia­ment. [Page 53] & yt the kinges maiestye, his heires and successors shall haue as much benefit & auātage by such attainder as well of vses, rights, entres, cōdicions, as possessions, reuercions remainders and all other things, as if it had ben done and declared by autoritie of parliamēt: and shalbe demed and a iudged in actuall and reall possessiō of the lands, tenemēts, hereditamēts, vses, goods, cattals & all other things of the offēdors so attaīted which his highnes ought lawfulli to haue and which they so being attainted ought or might lawfulli lose and forfait if the attainder had ben done by authorite of parliamēt, without any office or inquisicion to be founde of the same, any law, statut or vse of the realme to the cōtrarye therof mani wise notwtstādīg. This statut maks it clere & without questiō that in cases of hye treson the lāds of him that is attainted are in the kinge biand by without any of­fice. But for other attainder it remaines as it was at the comō Law, and therfore lerne if one which holdeth of ye king be attainted of petit treson or felonie, whether in this case by thatainder his lands be in the king without office, and me semeth by attaīder and death together they should be in the kinge in law, howbeit not in dede, vntill suche time his highnes seise themby his officer, or that an office bee therof foūd, for by thattainder the lands are forfaited to the kinge by mater of record, and then when the partie dyeth either the frehold must be in suspence, or els aiudged in the king in lawe, for he that was seised hath corrupted his blood and is dead without heir, and therfore his highnes is beecome owner thereof in lawe, and a possession in lawe vested in him of the same landes, which his highnes at his will and pleasure may make a possessiō in dede as sōe as he wil take vpon him knowledge of the sayd landes and sease them by his officer. And therfore the booke is agred 20. E. 4.20. E. 4. so. 10 that if he yt is attaynted be seised of auowsōs appendaūt, as sōe as ye church becometh voide ye king may presēt wtout any office [Page] which proues yt ye kinge by thattainder was patron before any office found or els how could his highnes present? and I see no differēce betwene lāds & auousōs in this case, for auouson is not so transitorie toward the kinge, but yt he mai take the presentment therof at all times whē he will, quia nullum tēpus ei occurrit. Howbeit lerne what the law will in this case, for many mē are of the contrarie opinion. And see the boke .4. E. 4. cōcernīg this mater. And so note what is sayd of a possession in law,4. E. 4. 21. for as I take it there may be a possession in law in the kinge as well as a possessiō in dede, which possession in law is euer without office or any other mater of record, as whē the possessiō is cast vpō his highnes by a discēt, reuerter, remaīder, or escheit, or in title of his seignorie or prerogatiue, as for wardship, primer seisī, or for the custodie of the tēporalties of a bishop during the time yt the see is vacant, in all these cases without any office or other mater of record here is a possession in law vested in ye kings highnes, yt is to say, for yt that doth descēd, reuert, remain or eschet, the freholde is cast vpon him in lawe as it should be vpon a comon person in the like case, or els ye frehold should be in suspence, which may not be, & of the rest the possession in law of a cattell is in his highnes in right of his seignorie, which his highnes at his will and pleasure may make a possession in dede by entre or seasure, but not to make it a possession in dede by his graunt, because there is a statute made in the 18. yeare of H. 6. ca. 6. to the let therof, which pro­uideth yt all letters patents made of lāds & tenements before office foūd and returned, or within one month after but onely too him that tendethe his trauerse shalbee voyde. This statute extdes onely to landes and tenementes, therfore of the bodie of his warde his highnes may make a graunt notwithstandinge this statute as me semeth, for that is nei­ther lād ne tenemēt: also notwithstādinge that this statute doth restraine the graunting of the lāds & tenemēts, yet the [Page 54] seisin therof remaines and is in ye kinge as it was by order of ye comon lawe which is as I sayd before in his highnes in lawe, although not in dede, vntil such time as he hath made a seasyn or an entree by his eschetour, or a graunt therof, which wayethe both to a seasure and a graunt, in such cases where the graunte maye bee goode and not restrained by statute, or vntill such time an office therof be found: For an office that entitleth the kinge to the possession is suffi­cient by it selfe without any seiser or entre of the eschetour to make a possession in deede in the kinge, if it be so that the possession were vacant when the office was founde. But if the possession were not vacāt, but an other thā he in whose right the kinge seiseth was tenant therof at the time of the findinge of the office, then must the kinge entre or sese by his officer before the possession in deede shalbee iudged in him: yea and if his highnes seise not by the space of a yeare and a daye after the findinge of the office, then maye be not seise without a Scire facias to bee pursued agaīst him yt is tenāt therof.9. H. 7. f. 2. 7 49. E. 3. f. 22. 20. E. 4. f. 10. Estopel. 255. Trauers. 50. 32. Ass. P. 32. 29. Ass. P. 30. 21. H. 7, f. 7. P. 21. E. 4 f. 1 Gard. P. 105 And of those maters you may see bokes 9 H. 7. 49. E. 3. 20. et 21. E. 4. 4. E. 2. 10. H. 4. 21. H. 7. 29. et 32. li. ass. But heruppon is there a distinction to be made, whe­ther that yt the king is ētitled vnto by office be a thinge ma­nuell and wherof profit maye bee taken forthwith after the findinge of the office or not. For if it bee such a thinge as is not manuel and wherof there is no profite too bee taken forthwith vntill such time it falleth, in that case althoughe the king be in possession of the right of the thing, yet is he not in possession of the profit therof vntill such time as his highnes actually by his officer when it falleth taketh and perceiueth the said profit, as for example. The thing yt king is entitled vnto by office is no land but auowson, rent or a comon, although that the kinge by this office be patron of thauouson or owner of the rent or comon, and therby when the benefice becometh voide may present, or when ye rēt daye [Page] cometh may receue the rent, or when the comō is to be takē may vse the said comō, yet if the office that entitleth his highnes be false, and he that was in possession at time of the of­fice take the profite when it falleth before the kinges offi­cer do take it, in this case this takinge is no entrusyon vpon the kynges possessions, for he was neuer seysed in deede: wherefore being driuen to his accion if his highnes bringe his Quare impedit or accion of trespas, the defendant maye trauerse the office with him in the said actions keping still his possession, and neede not too sue in the chancerie for the trauersing of the same. This maye you see a Difference beetwene a thinge that is manuel and a thinge not manuel, and what the reason therof should bee learne, for as I. suppose the reason of it is no other but as I sayde before, yt when a straunger is tenant at time of the office findynge the office maketh no possession in deede in the kinge beefore an entrie or a seiser. And then when the kinges officer ta­keth not the profites when it falleth but suffreth him that was in possession to take it, then was the kinge neuer sei­sed, but he still remaines in possession that was possessed at the time of the finding of the office vntill such time as seiser bee made for the kinge, which can not bee done at all times as it maye bee of land, but onely at such times as the profit therof is too bee takē, that is to saye, when it fallethe, and that is nowe past for this time seynge it is allredy taken: and therfore the kynge in that case is driuen too his action. But quere whether his highnes may bee brought in possession in those cases by a clayme or not: And these cases maye you seee in ye bokes of .17. E. 3. f, 10. 21. E. 4. f. 1. 5. E. 4. f. 3. et. 4. E. 3.15. H. 7. f. 24. Quare Im­pedit P. 33 Like law is it where an office is found which doth not entitle the kinge to the possession by entrie but onely by ac­tion, as where it is found that the kinges tenant for terme of life or yeres hath done wast, or being his tenant in fee simple hath cessed by ii. yeres, or made a feffemēt by collusiō contrarie to the statut of marlebrige, or such like. For it is a general [Page 55] rule that in al cases wher a comō person cannot ēter but is driuen to his action, there the kinge can not haue the possession but by like action, or ells by a Scire facias after office foūd in nature of ye actiō, for the office in ye case entitleth the kinge to no other thinge but onlye to the action, as appereth 21. H. 7. f. 1 [...].21. H. 7. fo, 1 [...] But quere of a feffmēt yt is foūd to be made by collusiō cōtrarie to ye statute A. 34. et 35. H. 8. ca. 5. for in ye case it semes his highnes may enter wtout Scire facias bee­cause the said statute apointes no action to be sued in ye case. And note yt in al these cases before where ye kinge is driuen to his Scire facias or other acciō if the office be false, ye partie maye trauerse the office with ye king, keping still his possessiō whether it be in ye chancerie or in any other court, & nede not to sue any ouster le main if it be foūd for him, because he was neuer out of possessiō. Thē further let vs see in what cases ye king can not be ētitled but only by office or other mater of record, & in what cases he may, howbeit not to haue anye possessiō either in dede or in law vntil ye time there be a seasure made. And as to yt, note that in all cases where a co­mō persō can not haue a possessiō neither in dede nor in law wtout an entre, there ye kinge can not haue it wtout an office or such like mater of record, as where ye king hath title to enter for a mortmain or for a cōditiō brokē, in this case ye king can haue no title vntill such time as ye sayd mortmain or cō diciō broken be foūd by office or by some other record, as it appereth 2. [...]. 9, H. 7.2. H. 7. in Fitz ti. proc. P. 10. So it is in diuerse other cases concer­ning ye kinges prerogatiue as in ye case of Ideotes, of luna­tikes which haue lāds or tenemēts, or when his highnes is to be ētitled for annū, diē, et vastū of persōs attaīted, or for an alienaciō wtout licēce, or to sese ye tēporalties of a bishop for a contēpt, in all those cases his title must be furst foūd by of­fice or otherwise apere of record for these rights his highnes hath only as king. But if his highnes haue cause to seise the lāds of his widow that hath maried her self wtout license his highnes maye seise, notwtstandinge there be no office foūde of her mariage, as it appereth in ye new Natura breuiū. f. 174 [Page] Learne what should be the reason therof, more then in the case of alienaciō before. Like law hath bene vsed where his highnes is to sese lands of priors aliens within this realme ratione guerre, his highnes doth it without any office, for in bothe these cases the kinges title is notorious enoughe al­thoughe it appere not of recorde. But yet in those cases his highnes must seise eare he can haue anye interest in the lāds because they bee penal toward the partie and of these cases you shall finde bokes 49. E. 3. f. 17. 21. E. 3. fo. 31. 21. H. 7 fo. 7. 14. H. 4. fo. 37. 22. E. 4. fo. 4. 3. et 17. E. 3. fo. 1. et 17. Other prerogatiues the kinge hath which extende onely to perso­nal and transitorie thinges ad bona et catalla felonū, wreke de mere, tresour troue, or the profites of landes of clerkes conuict of felonie, or of persons outlawed in a personall ac­tion, to these thinges it semes the kinge is ētitled although there be no office or other mater of record found of them as it should appere. 11. H. 4. fo. 39. 21. H. 7. fo. 7. et 27. li. ass. P. 50 And note that if the kinges title appere any way of record,Gard. 1. 40. Ass. P. 36 it is as good as if it weare found by office. Therfore yf the kinges tenāt alien wtout licence which alienacion appereth by fine or other mater of recorde, in this case if ther bee an other record found that proueth the landes to be holden of ye kinge in capite vppō these .ii. records together proces shalbe made against the partie by Scire facias to come and shewe why he should not make a fine for the alienacion. Like lawe it is where there is a record to proue that he that aliened is but tenant in taile of the kinges gift, and he pretendinge to be tenant in fee simple doth purchace a licence of alienaciō and a lienethe and after dyethe without issue, which deathe is founde by office but nothinge of his state taile or lycence appeareth in ye sayde office, yet vpon all these recordes laied together ye king shal haue a Scire facias against the alienee to show why the land should not be seised in to his handes [Page 56] and his highnesse aunswered of the profites since the death of tenaunt in taile, for when hee was but tenaunt in tayle it appearethe that the lycence was pourchased vpon false suggestyon, and so voyde,40. li. assise. in Fit. ti. Garde P. 1. and thenne the landes ought to reuerte to the kynge beecause hys reuercion coulde not bee discontinued. And this maye yowe see 40. li. ass. Then laste of all it is to bee seene whether the possession may bee taken from the kynge bye entrye or not. And as to that, yf the kynges possession bee by matter of recorde, noe persone can dysseise hym or take the possession from hym, for lyke as the kynge maye not take by gyfte from anye persone but by matter of recorde, noe more maye the possession de­parte from hym but by matter of recorde, and therefore his hyghnes cā not haue assise or Electione firme siue custodie, lyke as a common persone maye: yea and thoughe the en­trie bee not immedyatlye vppon hym but vppon his com­mittee or fermer, yet it is noe disseisin to his hyghnesse, as it appearethe 4. H, 7. folio. 2. M. 2. H. 4. M. 14. E. 4. folio.35. H. 6. in. Fits. titulo. Suggestion. P. 9. 2 & M. 35. H. 6. folio. 1, Bye the whiche sayde booke of 35. it al­so appearethe, that if the kynge or hys commyttee bee cast oute of the wardeshyppe of the landes that the remedy is in thys manner, that is to saye, vppon suggestion thereof made in the Chauncerye, there shalbee awarded a wrytte called Amoueas manum, and that vppon a certaine payne, whyche wrytte maye bee awarded onelye vppon this sug­gestion wythoute anye presentmente or enquirie, and thys writte maye bee graunted to the committee as well bee­fore possession hadde of the warde as after, for where the kynge was once possessed by office, and grauntes it ouer, yet this possession styll remaines, for the kynge abydeth stil gardeyne notwythstandynge anye such graunt: And there­fore this writte of Amoueas sub pena lyethe for the grauntee or committee, although the graunt be absque aliquo in­de reddendo. And if vppon this writte of Amoueas the de­fendant [Page] do not restore the thing, then shall goe out againste him an attachement, vpon which writ the defendant maye appeare and shewe his title, which if it be founde agaynste him he shall then make restitucion by iugement and paye a fyne and aunswere the meane issues & profites. Thus dothe it appeare that the king cannot be disseised or eiected if his highnesse bee once seised by mater of recorde. Otherwyse it is before his seisin bee by mater of recorde, for if beefore office a straunger entre by title or without title this is no intrusion vpon the kinges possession, but in this case the heire may haue Assise of mort dauncester againste the straunger if hee will, whiche proues that by his entrie hee hath gottē bothe a freeholde and a fee simple. But as sone as the office is founde and the eschetoure entreth, this possession of the straunger whiche entred witheoute title is clerely vndone, and the freeholde and the fee simple reuested in the heyre But if the entrie of the straunger weare by title and afterwarde office is founde and the kynge seisethe, whether then it bee so or noe, learne. And it shoulde seeme to bee all one, or els the kynges seisure is not good, for howe can the kynge seise in an other bodyes ryghte if the ryghte weare taken awaye beefore by an entrie? therefore it shoulde see­me eyther hys highnesse hathe noe title in that case to seise, or els by his seisure, the freeholde and the fee simple muste reuest in the heire. But note that if the kynge wyll bye co­loure of a recorde seyse an other mannes lande, whiche re­corde geeues him noe title in deede, notwythestandynge anye suche seysure, yet hee that hathe righte maye entre vppon the kynge, and bye his entrie reuestes agayn in himselfe bothe the freeholde and fee simple as where it is foūd the kynges tenaunte dyed seysed but of an estate for terme of lyfe the reuersion to an other and thys notwythestan­dynge the kynge seisethe, in this case if hee in the reuersi­on [Page 57] entre vppon the kynge this is a good entrie: and there­fore the case was, hee made a feffement after his entrie and it was thoughte to be a good feffemēt. Like law is it where the kynge is entitled but onelye to the profites as vppon an vtlagarie in a parsonall action or vpon the conuiction of a clerke, in these cases if the partie entre and make a feffemēt or if a straunger that hathe title to entre do entre hee dys­chargeth the kynge of hys interest, and of these maters,Trauers. 12. Assise. 156. you shal find bokes 8. H. 4. f. 16. 21. E. 3. f, 1. 3 H. 7. 10. E. 3. 27. ass. P 15. 9. H. 6. f. 20. &. 21. H. 7. f. 7.

Enterpleder.

SOmetyme it happenethe that by two seuerall offices founde in one countie seuerall parsones be seuerallye founde heires to one man, wherebye forasmuche as the kinge is brought in doubt to whiche of them his hygh­nesse maye make liuerie, they therefore muste firste enter­plede, and when by enterpleder the priuitie of the bloode is tried beetweene them, then his highnesse oughte to make the liuerye to him that is tryed to bee the nexte heire of him that dyed. As for an example, by one Diem clausit or spe­cyall commission in one countie one is founde heire to hym that dyed the kyngs tenant and of full age, and by an other Diem clausit or speciall commissiō in the same countie one other is founde heire also to hym that dyed and within age, in this case the heire that was firste founde shal haue a Sci­re facias in ye chauncerie against hym or her yt was last foūd heire to come & shew why liuerie should not be made vnto [Page] hym that last dyed seised thereof vppon whiche writte yf a Scire feci be returned and the partye defendaunt cometh not, or yf he come and confesse that he hymselfe is not heire then the plaintife in the Scire facias shal haue hys lyuerie, but if hee come and entitle hym by the seconde office, and trauerse the firste as hee nedes muste (for thenterpleder muste nedes reste vppon the firste office, and not vpon the second) then as thissue is founde,P. 36. E. 3. in Fits. titulo. Trauers P. 44. so shall hee or theye for whome it is founde, haue lyuerye. And this appearethe in the newe Natura breuium fo. 294. 36. E. 3. & 16. E. 4. folio. 4. Howebeit a great doubt ryseth in our bookes vppon thys mater whether thenterpleder shalbe fourthwithe after the seconde office founde or not vntill suche time as the heyre that is founde wythin age commethe to his age, and as it appeareth by the sayde boke of 36. Ed. 3. in this case, where one was first found of full age & after the other within age thenterpleader was fourthwithe, for it weare noe reason that hee that was ryghte heire and of full age shoulde bee delayed by the nonage of the other that is noe heire. And a straunger shalbee receaued to trauerse the office not withstandinge, the heire that is founde by the office that is trauersed bee withein age. And then it is noe reason that the heire in this case be in worse condicion then a straūger. But take it, by the first office one is found heire and wyth­in age, and by the seconde office an other is found heire, and of full age, whether in this case they shal enterplede or not, or whether thenterpleader shalbe before thage of the other: And surely it shoulde seeme by the groundes and rules de­clared before vpon the writ of Diem clausit extremum, that the seconde office in this last case is voide, because there ys noe better title founde for the king than was by the first, & then if it be voide, there can be no enterpleder. Howebe [...]yt in the newe Natura breuium fo. 2 [...]0. it appeareth to the contrary [Page 58] hereof & that they shal enterplede in this case, and yt the seconde office is not voyde for there the heyres founde by bothe offices weare of full age. And yet that notwythstandynge theye enterpleaded. And so is .5.T. 5. E. 4. f. [...] Edwarde the fower­the where it is sayde that if by one office the heire is founde within age, and by an other office an other is founde heire and of ful age, that in this case theye shall enterpleade but not before the childe come to his full age. And Townesende iustice sayeth in .1. H. 7. that if by diuerse offices ij.Liuery. P. 17 be seuerally founde heires and within age, nowe the kynge shall ke­pe the landes tyll theire full age, and thenne theye shall enterpleade, and yf theye dye before enterpleder their hei­res within age, seueral Deuenerunt shalbe awarded yt is to say, for euerie heire one & by the same beyng foūd seuerally heyres to the auncester, theye shall enterpleade at theyre full age, like as the auncester shoulde haue doone if they hadde lyued, and yf the dyinge of anye of them weare wytheout issue and the other founde to bee his heire then is thenterpleder determined. Thus may ye see how bokes vary in this matter, and yet by the waye note this diffe­rence, that is to saye, where by the firste office the heire is founde within age and were of full age, for by these bokes it shoulde seeme that if hee bee firste founde withein age, notwithstandyng that by an other office an other is found heire and of full age, yet hee shall not enterplede with the other tyll he bee of age, contrarie it is yf the fyrst be found of full age, and the nexte wythin age, and the reason may be for that the kynge is first seysed of hym yt is wythyn age, wt whom the lawe weyes more in presumption to bee heire than the other, and thys tytle ys the beste tytle that the kynge hathe, for it entytlethe hys highenesse to a greater benefite than dothe the seconde office, and thys second was found vpon a cōmission graunted more for the kings benefit thā for ye heries that should be foūd by ye same [Page] and therefore it weare reason that hee that is first founde heire haue more fauoure if anye fauoure bee to bee shewed thanne hee that was last founde heire, or at the least for the kynges benefit that the matter be respited til the childe bee of age. Also the sayde Iustice Townesend sayde further, that if one bee founde heire in one countie & an other found heire in an other countie, yet they shall enterplede, whyche can not bee as me seemethe: for once wee haue a generall grounde that a man can not sue a generall lyuerie by par­celles but firste he muste cause an office to be founde in eue­rye shere where he haue landes, and when all the offices be returned, then to haue his lyuerie and not beefore, then this case where one is founde heire in one sheere and an other in an other sheere, heare none of them bothe canne haue ly­uerye, beecause hee hathe noe office founde butte in one sheere and not in the other: and thenne if there canne be noe liuerie there can be noe enterpleder, wherfore it should seme in yt case they cā not ēterplede.2. [...]. 7. f. 2. Trauers 49. And here with agreeth the boke in .2. & .8. Henry the seuenth. So no enterpleder can bee but where there is an office thorough the whole found for euerye heire in euerye countie wheare the landes lye, but it is not allwaye requisite that theare bee seuerall offi­ces founde, for sometimes vppon one office founde by it self alone there maye bee an enterpleder, and that is wheare ij. bee founde heires by one enqueste as two twynnes that is to say, two children borne at a burden. And it is to be noted that euerye enterpleder is to trye the priuitie of bloude one­ly, that is to say, which of these ye enterplede is next heyre to hym that last dyed seysed, and not to trye theire rightes in the landes. And therfore if by one office one bee foūd heire of a general taile, and by an other office an other is founde heire to the same lande as of estate in specyall taile, theye shall not enterpleade, as it appearethe in 21. H. 7. fo 3 [...]. Allso they must be both found heires to him that last dyed, and by [Page 59] whose death the king dyd seise: for if one bee founde heire to hym that dyed seised and another is founde heire to the aū ­cester that dyed seised nexte before the last dyinge seised, in this case they shall not enterplede, as it appearethe in H. 2. H. 6. f. 5. Also theye shall not enterplede but wher both heirs claime by one selfe title of landes holden of the kinge, for yf the kings tenant dye seised of lands holden of other as well as of the kynge, and one is founde heire to al the landes, and by an other office an other is founde heire onely to the lan­des holden of other, in this case theye shall not enterpleade, as it appeareth in .12. E. 4. f. 18. for he yt is found heire by the seconde office can not haue liuerie if thenterpleader weare found for him, because he is not found heire of all as is be­fore remembred. And therefore if one be founde heyre virtu te breuis. and an other is founde heire virtute officij, in this case they shall not enterpleade, beecause hee that is founde heire virtute officij, can not haue liuerie yf thenterpleader did passe wt him: for ye nature of enterpleder is to haue [...] for him with whom it is founde. And note that notwithe­standyng an enterpleder is not to trie the righte in the land but onelye the priuitie of bloud: yet the issue tryed betwene them shalbee an estoppel afterwarde in an action vsed of the possession of the same auncester by whom theye claime,Estoppell P 255. as in Assise of mortdauncester or cosinage, as it appeareth in .4. Edwarde the seconde. And note that as two or more shall enterplede that clayme as heires, euen so shall anye other that clayme not as heires, but by soome other tytle, if it bee so that theire title affirme the kinges possession, as take the case to bee this. Land holden in chiefe is alyened to diuerse persons at diuerse tymes, and thys founde bye office the kyng seiseth, & after cometh euery of ye alienees & praieth to make his fine & to be restored, now they shal first ēterplede & try which of their feffem̄ts oughte to take place are any of thē getteth restituciō, as appereth in 43.Trauers 25. li. ass. [Page] So it is if anye of them come into the chauncery wytheout proces & confesse thalienacion, as it appeareth by the sayde bokes, for by the confessiō the king is entitled against him that confesseth as well as if it had beene founde by office.

Trauers.

TRauerse for goods was at ye cōmō law, but trauers for lands found by inquisition before theschetor is geuē by ye statut made in ye 34. yere of E. 3. ca. 14. which saieth in this wise. Item acc̄ est q̄ la ou terres ou ten̄ts sōt seisies en la maine le roy ꝑ office del eschetor cōteignōt q̄ le tenāt le roy ent fist alienaciō sās cōge le roy, ouq̄ le tenāt le roy ꝑ seruice de chl'r morust ssīdes terres & ten̄ts auātdits en sō demene cōe de fee et sō heire deins age, et puis la cause [...]tifie en la chaūcerie, et celuy qui terres sōt seisie veigne en la chācerie et voet trauerser loffice qui fuit primes pris ꝑ mā ­dem̄t le roy, que les dites terres ne soyent my seisables, soit a ceo resceu & soit le proces maūdes en bank le roy a tryer et oustre faire droit. This statut extēds only to the offices takē virtute breuis aut cōmissionis, & not to offices taken virtute officij. And also by this statut though ye trauerse were foūde for ye partie, yet might he not haue had iudgemēt til a proce dēdo ad iudiciū had ben awarded. And therfore was ther an other statut made in the 36. yere of ye said king the .13. cha. the tenor whereof is this, Pour les greuouses complaintes queux le roy aū oye de son people de ses eschetoures, & de lour male port, il voet & ordeigne del assent auauntdit, que terres seisies en sa maine par cause de garde, soyent salue­ment gardes sauns wast ou destruction. Et que leschetoure neyt nulle fee de bois, veneson ne pessoun, nauter riens, mes respoign̄ au roy des issues et profits annuels proueignaunts [Page 60] des dits terres sans wast, ou destrucciō faire. Et fil face auter­ment et de ceo soit attaint, soit reint a la volunte le roy, et rē ­de al heire ses damages au treble, a sa proper suit, sibien deins age come de pleine age, & eyent ses amis tan (que) il soyt deyns age la suite pur luy, respoignants al dit heire de ceo qui serra issint recouere. Et auxint dauters seisies en la main le roy par enquest doffice pris deuaunt lefchetor teign̄ mesm̄ cest ordi­uaūce & penance deuers leschetours. Et sil eyt nul hōe qui mette challenge ou claime as terres issint seisies, qui Lesche­tour maunde lenquest en la chancellary deins le mois apres les terres issint seisies. Et que briefe luy soyte liuere de certifi­er la cause de sa seisine en la Chauncellarye, & illeoques soyt oye saūs delaye de trauerser loffice ou auterment monstrer son droite & illeoques maunde deuaunt le roy affaire finall discussion sauns attender auter maundement. Et en cas que ascun veigne deuaunt le chaunceller & monstre son droyte per quel demonstraunce per bones euidences de son aunci­en droyte et bone tytle que le chaunceller per sa bone dis­cretion & aduis du counsayle sil semble que il besoygne a­uoire coūsayle, que il lesse et baylle les terres issint en debate al tenaunte rendaunt ent au roye le value si au roy apperti­ent en maner come il et les auters chauncellers deuaunt luy oūt faits auant ces heurs des lours bons discretions issint que il face suerte que il ne ferra wast ne destruccion, tan (que) il soyt aiudge. Et que les dits eschetours preignēt tielx enquests en les bons vill' & per bons gents, & de ceo ouertment, & par endentures affaires enter les dits eschetours et ceux des ēq̄sts come auter foits estoit ordeign̄ per estatuts. Anno. 24. E. 3. Et si nul eschetor face au cōtrary de cest ordināce suisdit eit la prison des .ii. ans, & ouster ceo soit reint a la volūte le roy. By the comon lawe beefore the making of these statutes a man had no other remedy to auoid a false office but onelye his peticion. Howbeit in .24. E. 3.24. E. 3. f 4. wylby saieth that if thoffi­ce had bene found before cōmissioners or any other shanne theschetor, the party should haue had his trauerse by thorder of the cōmon law. Parauenture he may be moued so to say [Page] because those statuts geue a trauerse onely to offices & bee­fore eschetors, making no mētion of any offices & before any cōmissioners. Also beefore these statutes if after l [...]uerie or Ouster le maine sued, there had beene a newe office found, whereby the king had ben entiled to reseise, & thereuppon a Scire facias according to the statut of Lincoln against the partie that had pursued the liuerie or Ouster le maine to co­me & shew why the land should not be reseised, the partie in that Scire facias might haue trauersed the office that was so newly founde, as I shal more plainly declare when I come to that place. Also Bab. sayd in the schequer chamber before al the Iustices An. 8.Trauers 47. H. 5. that these statutes that geeue tra­uerse are only to be vnderstand where ye king is entitled to ye land but for a time, as for wardship, alienaciō wtout licēs and suche like. But if his highnes bee entitled to ye fee sim­ple or the freehold, there he yt is put out by the office shal not haue his trauerse, but is put to his peticion Tamen quere, for though the first statut be this as Bab. hath sayd, yet the second is not, but is general, & therfore may bee extended to al offices what mater soeuer they conteyn,Tra [...]ers 37. as appereth H. 19 R. 2. wher it was foūd yt one had encroched vpon the kyngs demeines which office in dede was false for that yt the thing supposed to be encroched was parcel of his manor that was so presēted & no part of the kings demesnes: in this case ye partie being put out of that parcel of grounde by theschetor was receiued to trauerse the office, & yet thoffice entitled the king to the fee simple. Also those statutes seeme not to geue trauerse but to him that is put out of possession by the office. But the statut of .8. H. 6. ca. 16. alowethe any trauerse ꝓfred by him that feeleth himselfe greued by any such enquest al­though he be not put out of possession by theschetor. And ye statut semes all so to allow trauers of an office taken aswell before cōmissioners as before the eschetor. Howbeit ye sta­tut geueth no trauers but onely maketh thereof a rehersal. [Page 61] These statuts that geue the trauerse seme to offre it gene­rally to any man that wil desire it or that doth put challen­ge or claime to the lands wherof he is put out by any office. Howbeit ye expositiō hath ben otherwise that is to say, that his challenge or claime must be such as the law will admyt & allow, for euery man can not trauerse that would or that maketh his challenge or claime: for these statutes are inten­ded wher the king is entitled by office onely, for if his high­nes be entitled by an other recorde beside the office and entitled as it were by a double mater of record, the partye shal neuer haue his trauerse. As take the case to be this, a man is attainted of treson by act of parlement or otherwise by ver­dit, and afterwarde it is found by office that the said person attainted was seised day of the treason cōmitted of certaine lands, which in dede were neuer his lāds but mine, in thys case if I be put out of my lād by this office I can not trauers it Causa qua supra, and yet I am a straunger to this record,46. E. 3. f. 17. 10. H. 6. f. 15. 4. E. 4. f. 27. as appereth in 46. E, 3. 10. H. 6. &. 4. E. 4. But if therbe noe such recorde of attainder I shalbe receiued well ynough to trauers the office, aleginge first to enure mee to a trauerse that there is no such recorde of attainder as appeareth in .4 H. 7. Allso he that is founde heire by office shal not trauerse the same office that so findeth hym heire yf that part of thof­fice that concernes the tenure in chiefe bee true,4. H. 7. f. 6. althoughe the reste of the office bee false: and therefore if the kynges tenaunt dye seised his heire being of full age, & by a false office the heire is founde within age, in this case, hee can not trauerse thys office as appearethe T. 5. E. 4.5. E. 4. f. 4. et. 5. And the rea­son of it is beccause the heire can not salsifie thoffice that hee himselfe is to affyrme by his liuerie whenne hee shall sue it. For thoughe hee woulde cause an other office to bee found according to the trouthe of the mater, yet it were not to the purpose to help him, for ye best office shalbe takē euer­more for ye king, that is to say, that that geues his highnesse [Page] most auantage & the heire driuen to sue his liuerie vpō that office onely, for seing the king is bound by an office as wel as is the heire, it is reason if any be better for him thā other that he be bound to that onelie, & not to the other, & the lawe presumes the one office to be as true as the other vntil such time a tryall thereof be made, which triall cannot be by the heire, for hee is bounden as I sayde beefore by the office that is found, without any further choise, hauing no prerogatiue in such mater, and if he shoulde be receaued to his trauerse in this case, then vpon the trauerse founde for him he should haue the lands out of the kings hands by an Ouster le mayn without any liuerie suing, as lands that the king ought to haue seised, which were incōueniēt. For euery way ye king ought to haue seised those lands against any yt claimeth to be heire vntil such time as liuere be sued therof. Like law it is where the kings tenant dieth seised of land in diuers coū ties his heire being of full age, & in one coūtie the same heir is founden wtin age, & in an other countie he is foundē of ful age, in this case the heire shal not trauerse thoffice that foūd him within age Causa qua supra: for then for the landes in one coūtie he should haue thē out of the kings hands wtoute any office or liuery suing.Trauers. 39. And this case appereth in .32. H. 6. But if an office find yt my father held his lands of the king in chiefe by knights seruice wherin dede he held not of him in chief, in this case I shalbe receiued to trauerse this office. For if I should sue my liuerie vpon the sone I should be cō cluded euermore after to say, but yt the lands were holdē in chief of the king, & for ye cause I shalbe receaued to my tra­uerse as euery straūger shalbee in the like case: for if my tra­uerse be true thē cā ye king haue no cause to seise those lāds, & therfore not like the cases before remēbred, as appereth M. 1 H. 7.Liuery. P, 10 The words of these statuts be yt he whose lāds be sei­sed shal trauerse or he yt putteth challeng or claime to ye lād so seised. These words be not so gen̄aly vnderstād as they be spoken [Page 62] for most men vnderstande them that hee will challenge or claime but a terme of yeares onely shal not bee receiued to his trauerse where the kinge is entitled to the freeholde by thoffice, as wher it is founde that the kings tenant is seised of certane landes and is dead without heire wherby the lā ­des ought to escheate to the kynge, cometh one and sayethe that hee is tenaunt for terme of yeares of these lands of the demise of a straunger, without that that he that is supposed to bee the kinges tenaunt was euer seysed of these landes, this trauerse lyeth not in his mouth: for he that hath but a chatell shall not be receiued in anye case to falsifie the re­cord that geueth any man interest in the freehold although he be a straunger to that record. Contrarie lawe is it of him that hathe a freeholde or inheritaunce in the lande, for they shall trauerse the recorde in suche case. Lyke lawe is it where the kynge is entitled but to the wardeshyppe of the heire of his tenaūt hee that is fermer of the dimise of a straū ger shal not trauerse hys office althoughe the king be not entitled thereby to anye freeholde, for it was not the minde of the makers of these statutes to helpe them that clayme: but chatels which are accompted in law as nothing, becau­se they perishe and abide not. Et de minimis non curat lex. Howbeit learne what the law wil in these cases, for I haue seene noe bookes of them. The lorde in title of wardshyppe shal trauerse the office, and yet hee claymethe but a terme of yeares in the lande, as where it is founde by office that such a one helde lands of the king in chief and dyed his heire within age where in deede he holdeth no suche lande of the kynge but onelye of mee by knightes seruice, in this case, I that am lorde shall trauerse this office, that is to saye, shewe howe they bee holden of mee by knightes seruyce without that they be holden of the king, as appereth in 1. H 7.Trauers. 20. For ther it toucheth the lords inheritance in the righte of [Page] his seignory, & because he by ye false office is to lose ye profit yt is presently fallen by reason of his seignorie, it is reason he be receaued to trauerse the office. But if hee were but lorde in socage he shoulde not be receiued to his trauerse, because he therby can make no title to the wardshippe of the body,37. lib. ass, P 35. and landes of the childe, for it is a good generall grounde if the kynge be once seised, his highnes shall reteine against all other that haue noe title, notwithstandinge it be found allso that the kynge had no title but that the other had pos­session before him, as appeareth in .37. lib ass. where it was found that neither the kinge nor the partie had title, and yet adiudged that the kynge shoulde reteine, for thoffice that fyndes the kyng to haue a right or title to entre, makes euer the king a good title allthough it bee false, and his highnes therby maye take possession against any other that is seised of the landes, and reteyne vntill such time as thoffice be trauersed by him that hath title and tried to bee a false offyce. And therfore no man shal trauerse thoffice vnlesse he make him selfe a title. And if hee can not proue his title to be true allthoughe he be able to proue his trauerse to bee true, yet this trauerse wil not serue him. As for an exāple, it is foūd the kyngs tenaunt died seised of certayn lands that he held of the kynge in chiefe, his heire beeinge within age, where in dede he had made a feffement in his life time to an other of those landes, it is no trauerse for the feffee to say he dyed not seised, but he must first make him selfe a title by the feffement: and for asmuch as it is founde that the landes are holden in chiefe, if he wyl make his title good againste ye kyng he must shewe fourth a lycence of alienation or a dispensa­tion therof, or els hee muste trauerse the tenure in chiefe as well as he shall doe the rest of thoffice, otherwise his tytle is not good,Trauers P. 44. et. 46. Liuerie p. 18 as it appearethe in .36. E. 3. 3. H. 4. 6. H. 5. & .3. H 7. f. 14. Howbeit Hussey holdeth opiniō that not mā may [Page 63] trauerse the tenure but the lord or the heire vnlesse his title be found by office, but whether the lawe be so or not learn, for as I take it the lorde and euery straunger yt hath a tytle againste the kynge, makinge his title shall trauerse the of­fice before his title be found by office: for when the trauerse is found for the partie his title nowe appeareth of recorde, and by the trauerse found, the office which was the kings title is vtterly destroyed & gone, so that now the king is not to make any liuerie of the lands to any person but onely to a moue his hands from the same, with the meane issues and profites as one yt had no cause to seise them. And therefore e­uery man may enter now that will if he haue right or title of entrie to the lands, for the king deliuereth them to no person certaine but onely ryddes his own hands of them as he that had neuer seised thē, but otherwise it is where the king is to make liuerie, for there his highnes must bee enformed certainly by mater of recorde who shalbe his tenāt & whoe it is that ought to receiue the liuerie at his handes least his highnes be deceiued in thadmitting of his tenant which ys & ought to be a great mater towarde the lord, & therfore the cases be not lyke, wherfore I think a man may trauerse by force of these statutes without hauing their title first found by office: & so be our bokes .36, E, 3. 2. E. 4. f. 10. 16. E. 4. f. 4.Trauers. 44. & 43. li. ass. P. 20. Howbeit 5. E. 4. fo. 5. semes to weye to the cō trarie hereof, & 12. H. 6. also, where it is sayde that if it bee found that the kings tenāt died seised wher in dede he was iointly enfeffed wt me, now can I not trauerse this office except an other office were founde for me. But contrarie lawe should it be if it had ben foūd by ye office iointenant wt hym for term of life wher in dede I was iointenaunt with him in fee simple, in this case I may traūse thoffice, because mē ­tiō is made of me in ye sayd office, this boke case admitted to be law, yet it varieth frō ye case before remēbred of ye strāger [Page] that trauersed thoffice, for here thoffice is true, and when it is found by office that he died seised, this maye be allthough the sayde dying seised were iointlye with an other for any thynge that is expresselye founde to the certaintie, and then the king here is to admit an other tenant, as in the case of ye liuerie before of whome as yet he hath no credible informa­cion, that is to saye, by mater of recorde, and then it is lyke to the cases of tenant by the curtesie, tenant in dower, and the deuisee which in no wise can be admitted to their estats vnlesse mention be made of them in the office or some other office or mater of recorde found for them,9. H. 7. fo, 24 Brief. 618. as appearethe in 46. E. 3. & M. 11. H. 8. and for none other reasō as I gather it but onely for that thoffice is true, & they are to be admytted the kings tenants which can not be but by informacion by mater of recorde, vt supra. Then let vs resorte to the place we were at before: that is to say, no man may trauerse with the king vnlesse he make himselfe a good perfecte title, as to say that the tenaunt whiche is supposed to dye seised did en­feffe hym, or that a straunger was seised and did enfeff him without that that hee dyed seised. And so note by the waye that he may conuey hys title aswel frō a straunger as from hym that is supposed to dye the kynges tenaunt, as appea­rethe in .36.Trauers 44. Ed. the thirde, and when he hath made thus his title, then he must trauerse the kings title which is thoffice, for it is not ynoughe for him to rest vppon his owne title al thoughe it be neuer so strong without aunsweryng the kin­ges title, yea although it were good againste a comon persō, yet against the king it is not so wtout trauersing ye office. And therfore if he wil say yt the tenāt in his life time did le­uie a fyne vnto him of these lands, Sur conusaunce de droit come ceo quil ad de son done, by vertue wherof he was sei­sed vntil such time as he was put out by this office & praieth restitutiō, this is no ple against ye king, & yet this mater were a good plee in assise of Mortdaūcester brought by ye heire, [Page 64] for in that case he shoulde be stopped by this fine, whiche is executed to say the contrarie therof, that is to say, that his father dyed seised without shewing howe his father gotte the possession againe sins the time of the fine leuied. But yt ys no plee against the kinge, for the kinge can not bee estopped namely in this case beeinge a straunger to the recorde. And also the statut geues a trauerse and by this maner of plea­dynge he takethe no trauerse. Lyke law it is if it be founde by office that the kyngs tenaunt in chiefe enfeffed one B. without lycence, comes one D. and sayeth that he dyed sey­sed,ꝑ. 46. E. 3 in Fits. titulo Trauers. P. 17. and his heire entred and enfeffed him by the kynges ly­cence, this is noe plee without trauersing the feffemēt ma­de to B. and yet against any comon persone it were a good plee but not against the king, for his title must bee aunswe­red fully: and that is the feffemēt, & these cases appeare 46. E. 3. 43. li. ass. P. 25. Also it is not sufficiēt to trauerse one of ye kynges titles but he must trauerse them all, for though the kings title that he is seised by, be found not good, yet if ther be any other record that makes the kinge a title wherby he may retayne the landes, the partye must auoide also that ti­tle or els he gettes no Ouster le mayne, but learne if ther be no suche recorde in Esse or beinge at the time of the trauerse tended, & hanging ye plee vpon the trauerse a new recorde yt s [...] to say, an office is found which entitleth the kyng, whe­ther in this case ye ꝑtie shalbe driuē to trauerse this office or not: ere he haue his Ouster le maine. And it semeth he shal not: for so he might be delayd of hys possession infinitlye by finding one office after an other, wherfore this office found hangyng the trauerse shallbe accompted in law as though it had bene founde after the partye had hadde his Ouster le maine, in which case then the partye vpon the first trauers founde for hym shalbe restored to his possession by an Ou­ster le maine, and then after vpō a Scire facias sued against [Page] him to shewe why these landes shoulde not bee reseised, vp­pon this new office found for the king, he shalbe receiued in that Scire facias to trauerse this newe office. Howebeit this auantage he winnes hereby, that is to say he then tra­uerseth with the king keping still his possession, where else he should trauerse being still out of possession. And this case ye may finde .11.T 11 H 4. et M. 13. H. 4. Thus may ye see when a mā trauerseth with the king, he must trauerse all the kings ty­tles that haue then their being by matter of recorde, and is not bounden any further to answer for that tyme. Then let vs see howe the kinge shall replye vntoo this trauerse: and in that it is to bee noted that the kinge hath a preroga­tiue that a common person hathe not, for his highnes maye chose whether hee will maintaine thoffice or trauerse the tytle of the partie, and so takes trauerse vppon trauerse, or when all his tytles bee trauersed his highnes maye choose to mainteine them all or else but one of them. But then note that if hee mainteine but one, that is to saie, take issue but vppon one whiche is founde with him that tended the trauerse, in this case the partie shall haue his ouster le main notwithstanding there bee no issues taken vppon the other titles, but whether the kinge shall euer take auauntage of thother titles after or not this is to be sene? and I thinke hee shoulde, for though the other titles shall not in this case let the partie of his Ouster le mayne, yet it seemes the kinge maye call the partie againe by a Scire facias to aunswere his other titles, or else his highnes to reseise as I saide bee­fore, for no nient dedire can preiudice the kinge nec tanta remun eratio, like as it may doe a comon person. And ther­fore seeinge hee did not renounce his other titles openlye nor expressely, it seemeth his highnes by his prerogatiue shall haue aduauntage of them at anye other tyme when it shalbee his pleasure.Trauers. 15 And these cases ye maye see .13. Ed. 4 fo. 8. 9. Hen. 4. et 4. H. 7. f. 4. Howebeit it appeareth in the [Page 65] saide booke of .13. E. 4. that after the kinge ioineth an yssue vppon a trauerse, his highnes cannot in an other tearme wayue this issue and take a newe, for so the partie might bee delaied infinitely of his right, whiche shoulde bee as it were a wronge committed vnto the partie, and the kynge by his prerogatiue maye doe no manne wronge: but after issue ioyned hee maye demurre in lawe, and waiue thissue for there is noe matter chaunged but the olde remainethe And by the demurrer the lawe presumeth that thissue was misioined and so myght bee a ieofaile, and therefore his highnes maye demurre in lawe after issue, but not change his issue and take a newe. And note that if the partie take a trauers whiche is iudged insufficient in the lawe, thys is peremptorie vnto him,Trauers. 24. & he shall not bee receiued after to take a newe, as it appeareth .40. lib. Ass. Howebeit .14. E 4. fo. 1. the contrarie oppinion is holden, and that it is not peremptorie, because it procedeth in the Chauncerie which is the court of conscience. But as to that a manne maye an­swere and saie that a Chaunceller hathe two powers, the one absolute the other ordinarie, and this trauerse is before him by an ordinarie power, in whiche case all thinges tou­chinge the same must proceede as it shoulde before anye o­ther ordinarie iudge of the common lawe, and therefore it shoulde appeare by a booke in .4. H. 6. fo. 12. et 22.Trauers, 12. Edward 4. fo. 9. that if the partie be nonsuit in this trauerse it is per­emptorie vnto him, for so might hee delaie the kinge infi­nitely, tamen quere, and learne whether one maye procede with a trauerse the heire beeinge within age or else shall tarrye till hee bee of full age for the booke is in 5.T. 5. E. 4. f. [...] Edwarde 4. that hee shall tarrie till the heire cometh to age. But in this question one may make this distinction, that is to saye Whether ye trauers be tēded by a strāger or by ye heir, for sō tymes it happeneth, yt ye heyr shal traūs as wel as a strāger. [Page] For no more then a straunger can haue ouster le maine wt ­out trauersinge all the kinges titles, no more may the heir haue liuerie wythout trauersinge all his tytles, and then if the trauerse bee to bee taken by the heire, hee shal not be thereunto admytted vntill hee bee of age, because that bee­fore that time he hath no cause to haue his liuerie. But that reason serues not where the trauerse is to bee taken by a straunger, and therefore it should seeme that hee shoulde haue it by and by: For hee hathe cause to haue an ouster le maine forthwith, and that with the meane issues and pro­fites, and therefore it were no reason that the nonage of a thirde person shoulde hinder him with whome hee is not to plede or to trye anye right but onelye with the kynge.

For if the childe haue right, hee may enter vpon the stran­ger after hee hath his ouster le maine and trye hys righte with him: and so at no mischiefe. And note as I saide be­fore that the heire must trauerse all the kinges titles ere hee can haue liuerie, and that whether the kinges tytle be in his owne right or in the right of an other, in his owne right, as if there bee a recorde that proues this lande to be aliened wythout the kings lycence, or that thauncestour of thenfaunt that woulde sue his liuerie was but tenaunt for terme of lyfe, the reuercion to the kynge and hathe made a feffement to the kinges disheritance or suche lyke, in these cases notwithstandinge the kinge did not seise by vertue of these recordes but onelye by vertue of thoffice whyche founde thauncestour of thinfaunt dyed seised the kynges tenaunt in chiefe of estate in fee simple, yet the heire geat­teth no generall liuerie vppon that office vntill suche time as hee hath auoided these other recordes And if hee haue it before: it is a cause of reseiser. So it is where the kynges ti­tle is in righte of anye other, as if one bee founde heire by office, and after by another office an other is founde heire [Page 66] of the same landes to the selfe same auncestour, in this case he that was first found heire cannot haue his generall ly­uerie vntill suche time as hee hathe destroied the other title either by an enterpleder or a trauerse, for if it so come to passe that he cannot enterplede, then must hee trauerse or by some other meanes auoide the recorde ere hee can haue his saide generall liueries, and if he sue his generall liuerie otherwise, it is then missued, and a good cause geeuen to the king to reseise. And this enterpleder or trauerse bee­twene them that claime as heirs is by the order of the com­mon lawe and not by statute, and can neuer be, but where both theire titles bee founde first by office, and the reason is, because that as sone as the matter is discussed betweene them, hee for whome it is founde shall forthwith haue hys general liuerie, which he can neuer haue if his title bee not first founde by office: and therefore not like the case where a straunger trauerseth with the kinge that is to haue but an ouster le maine, for there the kinge hadde no right too seise, and therefore his tytle nede not to bee found by offyce as I haue saide before. But in the other case who so euer shall claime the lande as heire, his highnes hath right to seise in the right of the saide heire, and to haue his primer seisine or wardshippe as the case dothe require. And there­fore his title must bee first founde by office: but where one heire is to trauerse with an other heire duringe the kinges possession, this shall not bee vntill hee that is first founde heire by thoffice come of age, because vntil that tyme, the landes ought to remaine in the kinges handes and then hee to haue liuerie: but whether hee that was firste founde heire shoulde tarrye for thage of him that was laste founde heire I haue said my mynde therin before in ye tytle of En­terpleder. But where a straunger is to trauerse, hee shall [Page] not tarrye for thage of the heire for the causes before remē ­bred. And so there appeareth to bee a great difference bee­twene a trauerse taken by him that is a straunger, and by him that is heire. But at this daye moste liueries that bee sued are specyall liueries, whiche conteine in them selues a pardone, and therefore the myssuinge of them is dispen­sed withall by the woordes of the pardone conteined in the saide liuerie. And so manye of these thinges that I haue spoken of before are not much to bee obserued if the liuerie or Ouster le maine bee not generall. For I see no lett but that an ouster le maine maye be graunted specially as well as a liuerie. And laste of all it is to bee noted that this tra­uerse extendes not to euerie recorde that entitleth the king, but onelye to suche recordes as bee trauersable, as an office or suche like, as I shall shewe my mynde therein more ful­lye in the chapter of Peticion. Other trauerses there bee whiche bee trauerses by order of the common lawe. And not by any statute, as trauerses vppon enditements or pre­sentmentes, whereof I entend not to entreat in this place, amonge whiche trauerses there is also by order of the common lawe a trauerse concerninge goodes and cattalles of persons attainted, for the whiche a manne shall trauerse with the kinge althoughe his title thereunto bee by double matter of recorde. As take the case to bee, a manne is attainted of treason or felonye or outlawed in a personel accion and after by office it is founde that hee was possessed of a horse or anye other gooddes as his owne proper cattell where in deede they bee the goodes of a straunger, in thys case the saide straunger shall trauerse this office with the kinge. So is it if it bee founde by office that a manne out­lawed in a personall accion is seised of certeine lāds which in deede are my landes, and theschelour by force of that fals office takes the profites, in this case I maye disturbe hym [Page 67] without trauersinge thoffice. And those cases appeare .4. Edwarde .4. fo. 24. 13. Edward .4. fo. 8. T. 9. H. 6. fo. 20. & M. 47. E. 3. fo. 26. Then further. The woordes of the saide statutes of anno 36. bee, that if anye came before the Chan­celler and shewe his right, whereby it may appere by good euidence that hee hathe an auncient righte and good tytle, then the chaunceller shall let the saide landes to the partye that tendeth the trauerse yeldinge to the kinge the value if it bee aiudged for the king, in maner as hee and the other Chaunceller haue done before him by theire good discreti­ons, so that hee to whome it shalbe letten finde suretie to doe no waste or destruccion beefore the trauers bee discus­sed. By the woordes of this statute it shoulde appeare that the Chauncellours before this time by theire discrecions hadde vsed to let the landes to the partie to ferme,Quare im­pedit p. 34. and that is true, for the kinge vsed so to doe vppon a peticion whiche was made to his highnes by the order of the common law in steede of a trauerse nowe vsed, as appeareth 5. Edward 3.Trauers, 12. and therefore I thinke his highnes may do so at this day bothe vpon a peticion and a Monstrance de droit, although the statute make no mencion thereof, for so it was vsed to doe by order of the common lawe, as it appeareth by the booke before. And of this matter see the booke .3. Henrye .7. Now is this statut amplified and made plainer in thys point by the statute made in the .8. yeare Henrie .8. the .26. chapter, whiche will that no landes or tenementes seysed into the kinges handes vppon enquest taken before esche­tours or commissioners bee in anye wise graunted or let­ten to ferme by the Chaunceller or Tresorer of Englande or anye other the kinges officers, till the saide enquestes or verdites bee retourned fullye intoo the Chauncerie or thes­chequer, but all that time shall abide in the kinges handes and by a moneth after the saide retourne, if it bee not so that hee or they that feele themselues greeued by the [Page] saide enquest or that are put out of theire landes and tene­mentes come into the chauncerie and offer to trauerse the saide enquestes and to take the saide lande or tenementes to ferme, whiche if they doe then the saide Chauncellour, Tresorer, or other officer shal let them haue them to ferme shewinge good euidence, prouing theire trauerse to be true accordinge to the forme of the statute of an .36. E. 3. to holde till the issue vppon the saide trauerse taken bee founde and discussed for the kinge or elles for the partie, and also fyn­dynge sufficient suertie too pursue the saide Trauers with effecte, and to render to the kinge the yearely value of the tenementes whereof the trauerse shalbee so taken, if it bee discussed for the kinge. And if anye Letters patentes of anye landes or tenementes bee made to anye other parson to the contrarie, then the same to be void after the moneth. Hereuppon is to bee noted that the shewinge of the euydēce is onelye rehersed to the lettynge of the landes to ferme & not to the trauerse, For by this statute hee maye trauerse without shewinge anye euydence, but not haue the landes to ferme. Also by these Statutes hee is not bounde to noe certeine tyme for takinge of hys trauers, but onelye for ta­kinge of the landes to forme, for hee maye tende hys tra­uerse when hee will so hee desire not the ferme of ye lands, But if hee will haue them to ferme hee must tend his tra­uers within the moneth, as appeareth .P. 13. E. 4. fo. 8. and nowe by the statute of anno. 1. H. 8. ca. 9. hee hath three mo­nethes libertie to doe it. Also note the thinges that he must fynde suertie for, that is to say, to sue with effecte, to paye the rent after the trauers bee discussed, and to doe no waste or destruccion. In this woorde rent is emplyed all the arre­rages of the rent that shall encurre meane betwene the ta­kynge of the ferme and the discussinge of the trauerse and yet it is not so expressed. Also the lease that is made to hym [Page 68] that tendes the trauerse is not of anye terme certeine, but onelye by these woordes Donec discussum fuerit, for the woordes of the statute bee so, and therefore as soone as the trauerse is founde againste him that tendeth it by and by the lease hee hadde in the landes by force of the Statute is voide, as apperethe in .4. Edwarde the .4. folio .29. wyth­out anye further proces: Howbeit forasmuche as the woordes bee to holde till the issue vppon the saide tra­uers taken bee founde and discussed, for the kinge or for the partie, I woulde learne if the partye bee nonsute vp­pon hys trauerse or that the trauerse bee aiudged againste him vppon a demurrer in lawe, whether the lese shoulde bee voide or not, like as it shalbee vppon the issue founde.

And it seemes it shalbee by the woordes comprised in the saide statute of anno 36. Edwarde .3. But not by any words comprised in the saide statute of an .8. H. 6. For the wordes bee tanque il soit aiudge, and therewih agreeth the booke in 4. H. 6. fo. 12. Also note that before this statute of anno .8. H. 6. the kynge did vse to graunte the custodye bothe of the landes and body to anye other to whome hee woulde after office and beefore anye trauers tended, and this graunt was good, because it was not then restrained by any sta­tute. Howbeit vppon the trauers tended a Scire facias shoulde haue beene awarded against the patentee compre­hendinge in the same all the trauerse. And if he had beene retourned, warned and came not, his patent had ben voide eo facto, as appeareth in the saide booke of .4. Henrye .6. at least wise for the landes, and yet there was then no esta­tute that made them voide, quod nota. And then by and by they shoulde haue beene letten to ferme to him that hadde tended the trauerse. But nowe whether since the makinge of the saide statute of an .8. Henry the .6. fo. 17. a Scire facias. [Page] shalbee awarded against the Patentee vppon a Trauers, lerne for the saide statute makes suche letters patentes voide for the graunt of the landes, but not so for the bodye, and therefore it seemes a Scire facias shalbee still awarded and the graunt also of the saide landes is not voide till af­ter the moneth.H. 8 H 6. 17. 5. E. 4. .3 & .5 M. 14. E. 4. 1 And nowe by the saide statute of anno .1. Henry .8. not till after three monethes, and so it shoulde seeme by the booke of .5. and .14. Edwarde .4. and 8. Henry 6. that a Scire facias shalbee awarded at his daie notwith­standinge the statute of .18. Henry .6. cap .6. whiche ordeines that all letters patentes made before the kings title found by inquisicion retourned into the Chauncerie or other mat­ter of recorde shalbee voide. For that statute also extendes but to landes or tenementes no more than the other sta­tutes do, so that the graunte [...] of the bodye or of anye other thinge whiche is no lande or tenement is good at this day before any office or inquisition thereof found. And it is fur­ther to bee noted that this statute of an .18. Henry. 6. makes not suche letters patentes good for anye time whiche hee graunted contrarie to the tenure of that statute but they be voide fourthwith. And learne and enquire if at this daye within one moneth or .3. monethes after office founde and retourned the master of the kinges wardes and liueries wt aduise of one of the counsell of the kinges courte of Wards and liueries made a lease of ye wardes landes or of an idi­otes landes being in the kinges handes for the time of the kinges interest in the same, and after within the tyme ap­pointed by the statute comes a stranger and trauerseth the office, whether in this case he shall haue ye landes to ferme or not. And it seemes that no, because this statut that geeues that power to the maister of the kinges Wardes, was made long time since the statutes of an .8. or .18. H. 6. that is to say in the .31. yeare of king H .8. whiche statute is generall and no sauing or exception made of thether statutes before. [Page 69] And then it is a general rule Quod posteriores leges priori bus contrarias abrogant. And some thinkes at this daye for wardes lands, or ideots landes there shalbee no lettynge of them to ferme to him that tended ye trauers, if they were letten before the trauers tended by the maister of the kin­ges wardes, but of other landes it remaines as it was be­fore the making of this statute of a .31. Henry .8. and note that if the kinge seise not for anye Wardshippe but onelye for primer seisin because the heire is of full age, if a straun­ger in this case wil trauerse it is to litle purpose. For if the kinge by and by after will make liuerie to the heire, the trauerse is become voide as appeareth 1. Henry .7. fo. [...]. for the kinge in that case hathe no cause to reteine the lande but to deliuer the same to him in whoes right he seised being a­ble for it, and hee that tended the trauers is at no mischiefe, for hee may nowe after this liuerie pursue for his remedye against the heire, and if it shoulde tarrye in the kings han­des for the trauerse sake, his highnes shoulde then haue all the profites if the trauers were founde with him for al the time that the saide trauers did depende, whereunto hys highnes hath no right but onelye the heire, and therefore it seemes there shall bee no trauerse but where the landes is to abyde in the kinges handes for a certeine tyme, as for Wardshippe, fine for alienacion, or suche lyke. But if hee that tended the trauerse bee founde heire by office, and is to haue liuerie of that lande as well as the other that was first founde heire, otherwise it is for the reason made bee­fore. And so of an enterpleder, For in that case the kinge is bounde to make the liuerie too him that is tried rightfull heire, but not so in the case of a trauerse tended by a straun­ger whiche claimes not as heire, for hee is to haue noe ly­uerie, but only an ouster le maine, by whych ouster le main ye kinge deliuereth nothinge but leaues his owne possession [Page] as one that hath no right to keepe the possession anye lon­ger. And it appeareth sufficientlye that hee hadde no right to keepe it after the tyme the heire that shoulde haue it was of full age: Wherefore a straunger in that case cannot tra­uerse, for so twoe that hadde no right, by trauersinge toge­ther might keepe the thirde that hath right from his posses­sion: whiche was neuer the meaninge of the makers of the saide statutes. And notwithstanding that this booke. 1. H. 7 bee that after the trauerse and before the ferme graunted the liuerie was made, yet that makes no difference, for whether the ferme were graunted before the lyuerie or af­ter when the trauers is become voide by the liuerie, the ferme whiche dependeth vppon the same is also voide as mee seemeth. And note also that the saide statute. 1. Hen. 8. whiche geeues three monethes for hauinge the landes to ferme makes no mencion of the tresorer of Englande, but onelye of the Chaunceller, so that for anye thinge that ys to bee letten by force of that statute it must bee done onlye by the Chauncellour and not by the treasorer. As it shoulde seeme as well of offices retourned into theschequer as into the Chauncerie, and therefore within the moneth after an office retourned into theschequer, the tresorer maye let the landes to ferme to him that tendes the trauerse accordinge to the saide statute. 8. H. 6. But if it bee to let after the mo­neth the Chaunceller of Englande must doe it as it should seeme. And note also that by a statute made anno. 1. H. 8. cap. 11. Any person that sued his liuere in time of king H. 7. vppon anye office that founde hee helde in chiefe where in dede he helde not in chiefe, whiche saide offices were found by the procurement of Empson and Dudley in the tyme of ye said late kinge, maye trauerse thoffice in like maner and forme as he might haue done before the liuerie sued, if it be so yt he be now seised of ye same landes, sauing that hee shall [Page 70] not bee restored to the meane issues and profites. This sta­tute seemes not to extende to the parties heires that hadde liuerie, but onelye to the partie him selfe. Quere hoc.

And note that in the court where thoffice is first retourned into, there I shall tende my trauers: as if it bee retourned into the Chauncerie, then in the Chauncerye, and if in the Eschequer, then in theschequer, as in deede all offices vir­tute officij are retournable in theschequer onelye, and such as bee virtute breuis vel commissionis bee retournable in the Chauncerie. And now by the Statute of .33. H. 8. cap. 22. No eschetour maye sitte virtute officij onely to fynde anye office of landes holden of the kinge of the value of v. li. or a­boue vppon paine to forfait v. li.

Monstrance de droit.

THe Statute of an .36. E .3. that geeueth a trauerse saithe in this wise. Et sil eit nul home qui met chal­lenge ou claime aus terres issint seisies que leschetour maunde lenquest en la chauncellarie deins le mois a­pres les terres issint seisies, et que briefe luy soit liuere de cer­tifier la cause de sa seisin en la Chancellarie, et illeoques soit oye sauns delaye de trauerser loffice ou auterment mre son droit, et illeoques maunde deuaunt le roye a faire final dis­cussion sauns attender auter maundement. This statute speakes bothe of trauerse and Monstrance de droit disiunctiuely, whereby a man may gather that if Monstraunce de droit were not by thorder of the common law as it is saide 13. E. 4. f. 8. that it is: yet were it geeuen by this estatute. And no booke that beares date before this statut can I find that treates any thing of Monstraunce de droit. Wherfore [Page] without preiudice to anye mans oppinion, mine oppinion is that it is geuen onely by this statute, but whether it bee so or not so, I doe not greatly force. Let vs see what it is, & in what cases it lieth. If the kinge bee entitled by office or other matter of recorde that is trauersable, Howbeit there is no cause of trauerse for that the office or recorde is true, in this case anye manne that hath right to the possession of the freeholde of this lande whiche in shewinge of his right is able to confesse this office and auoid it, shalbee receyued if hee bee putte out of hys possession or greeued thereby to come into the Chauncerie and shewe his saide right, which beinge there proued to be true, iudgement shalbee geeuen that the kinges handes be amoued from the possession of ye saide landes with the meane issues and proftes to be resto­red vnto the party that sueth the said Monstraunce de droit As for an example, it is founde by office that the kinges te­naunt by knightes seruice in chiefe dyed seised of certeine landes whiche are descended to his heir being within age, where in dede in his life time I recouered this land against him, and suing no execution suffred him to dye seised therof, now vpon this office returned into the Chauncerie shall I come & shewe my right, that is to saye, this recouere and a­uerre that this lande founde by office is the lande that I re­couered or parcell thereof, which being so proued and tried I shall haue an Ouster le maine. Like law it is if the kings tenaunt disseised me of those landes, and I made my conti­nuall claime, or that I had title to enter for condicion bro­ken into the saide landes in the life of the kinges tenaunt, and I entred and after was disseised by him. But quere if I did not enter in his life, whether now I may bee holpen by a Monstraunce de droit vppon the kinges possession. And me thinkes not because I haue noe righte in that case till I enter, for vntill that time the right continueth still in hym, so that the kinge then hath a right ere I haue a right which [Page 71] ought too bee preferred and take place since it is but for a tyme before myne. And for these cases see the booke in .3. H 7. fo. 2. But if the king bee entitled by matter of worde not trauersable as if he be entytled by double matter of record, in this case I can not haue my Monstraunce de droit no more than I can haue in the like case of Trauerse, vnlesse my title be founde by one of the saide recordes. As take the case to bee, It is founde by office that one suche that holdeth of the kinge disseised mee, and then committed a felonye, vppon whome I entred, after whiche entrie the saide te­naunt was attainted of the felonye, in this case I shal haue the lande out of the kings hands by a Monstrance de droit causa qua supra. And yet the kinges tytle is here by a record and not trauersable, that is to saye, thatteinder. But what than? My tytle is also founde by office, and appeareth by matter of recorde,M. 3. E. 4. 26 A. 4. H. 7. 6 whych beynge proued true doth clearelye auoide the kyngs possession, and that is the reason I shall be receiued in thys case to a Monstraunce de droit, as ap­peareth in .3. Edward. 4. And therewith agreeth the booke 4. Henry. 7. where kyng Richard ye thirde was attainted of Treason by act of Parliament and found by office that he was seised of certeine land, cometh one B. and saith that in the saide Parliament it was enacted that an atteinder of treason had against the father of the saide B. shoulde bee auoided and adnulled, and hee restored to his landes, and yt these lands cōprised in the office were in the hands of the said king R. by attainder of his father, & aiudged that vpon this Monstraunce de droit the party should haue restituciō because his right appered by mater of record. Like law is it wher it is found by office yt such a one is attainted of felony & is seised of such landes which are holden of ye king, nowe he that hath cause to sue his Monstraunce de droit can not be admitted therunto by reason of these two records. How­beeit if it bee so that there is noe suche attainder in deede, [Page] then may the party that would sue a Monstraunce de droit saye that there is no suche recorde of attainder, which bee­inge founde true, hee shalbe receiued to his Monstraunce de droit, as appeareth in the saide booke .4. H. 7. For nowe is there no recorde against him but onelye the office, and not­withstandinge that by thoffice thattaindour is founde, yet this fyndinge makes nothinge for the kinge: if it bee vn­true: For the iurie can neuer finde a matter of recorde, and if they doe, it is to little purpose: for the recorde is euer tria­ble by it selfe, and if there bee suche a recorde it will appeare thoughe they fynde it not, and if there bee none, the finding of it is voide. This may you see that a Monstrance de droit lyeth sometimes althoughe the kynge bee entytled by dou­ble matter of recorde, if it so bee that the parties tytle ap­peare by matter of recorde or else it lyethe not:M, 14. E. 4. f. 1. &. 7 And yet Choke, Littleton and Nedham, helde oppinion in .14. E. 4. that if it bee founde before theschetour that one was tenant in taile of certeine landes holden of the kinge the remayn­der to another in fee, and that hee in the remainder is out­lawed of felonye, and that tenaunt in taile is dead without issue, where in dede he beinge tenant in taile before the sta­tute De donis condicionalibus after that hee hadde issue en­feffed one B. in this case the saide B. shall shewe this mat­ter, and that the vtlagarie was after the feffement made and so haue the landes out of the kinges handes by a Mon­straunce de droit: But it shoulde seeme their oppinion is a­gainste the lawe and the bookes beefore rehersed, vnlesse this feffement were founde by office,Peticion .12. Trauers .7. because it appearethe that the kinge in this case is entytled by double matter of recorde. And note that where the kinge is entitled but by office alone, there the partye maye haue his Monstraunce de droit althoughe his title bee not founde by office, as wel as hee shoulde in the like case if he were to take a trauerse, But otherwise it is where the kinge is entitled by an other [Page 72] recorde beside the office whiche is not trauersable, there hee shall not bee receiued vnlesse the parties title appeare by mater of recorde. And note that if the kynge haue cōmytted the lande ouer, he that sueth his Monstrans de droit muste sue a Scire facias against the committe euen as hee shoulde vppon a trauerse, and as for takynge the landes to ferme or for suynge the sayde Monstrans de droit durynge the ty­me the heire in whose righte the kyng hathe seised is wyth­in age. Like lawe is to be vsed as is beefore declared vppon the tytle of Trauerse.

Peticion.

PEticion is al the remedie the subiect hath whē ye kyng seiseth his land or taketh away his goods from him hauing no title by order of his lawes so to do, in whyche case the subiect for his remedy is driuen to sue vnto his soueraine lorde by way of peticion onely: for other remedye hathe hee not, as it hath ben sufficiently declared before vpō the 15. cha. of the kings prerogatiue. And therefore is his pe­ticion called a peticiō of right, because of the righte the sub­iect hath against the king by the order of his laws, to ye thīg he sueth for. And this peticion may be sued as wel in ye parlem̄t as out of ye parlemēt, & if it be sued in ye parlemēt, then it may be enacted & passe as an act of parlem̄t, or els to be or dred in like maner as a peticiō yt is sued out of ye parlement which is in this maner, first after ye peticiō is endorsed it shal be deliuered to the Chaūceler of Englād, & thē shal ther be a cōmissiō awarded out of the chaūcerie to find the righte or title of him that sueth the peticiō, which being found by en­quest, [Page] then he may enterplede withe the kynge and not be­fore,Trauers 51. as appeareth in 18. E. 3. fo. 15. 4. E. 4. f. [...]. 11. H. 4. f. 5 [...] et 10. H. 4. And if vppon the sayde cōmission no title be found for the partie but onely for the kinge, yet the peticion shall not abate, but the party shall haue a newe commission in that case for the peticion is butte as voide vntill the parties title be founde by office,Peticion. 11. and is not to be sayde depē ­dinge vntill that time, as appearethe in .3. H. 7. Quere for he sued a newe peticion in that case. And note that when the peticion is endorsed, the partie muste followe and pur­sue the same according to the endorsement, or otherwise his suite is void: because the endorsemente is his warrant ther in,Peticiō. 1. 3. &. 18. as appearethe in 18. 22. et 46. E. 3. and therefore some­time billes of peticion be endorsed and sent into the kyngs benche or common place and not into the Chauncerie, and that groweth vppon a special conclusion in his peticion and a speciall endorsement vpon the same, for the generall con­clusiō is que le roy luy face droit et reasō, which is as much as if he had prayed restitucion of that that he suethe for: And there vpon such a generall conclusion the endorsemente is Soit droit fait as ꝑties which euer is deliuered vnto the Chā celler, as is declared. But if the conclusion in the peticiō bee speciall and the endorsement special, then they shal procede accordinge to the sayde speciall endorsement. As for an exā ­ple, the kinge recouereth in a Quare impedit by defaute a­gainst one that was neuer summoned, in this case the partie that lost can not haue a writ of disceit vntill such time as he haue sued vnto the kinge by peticion for the sayde wrytt and if in his peticion he conclude and praye that the kynge do him right generally, nowe the iustices before whom the recouerie was had can not examine the deceit without an originall writ directed vnto them for that purpose, and yet before he obteined that writ his right shalbe enquired of by commission, but if he conclude specially in his peticion that [Page 73] it maye please his highenesse to commaunde the iustices to procede to the examinaciō, which peticion is endorsed accor­dinglye, thē may they do it, wtout any such writ or cōmissiō to be sued, as appeareth in .10. H. 4.Trauers 51. So euer the folowynge and pursuynge of the thinge muste bee accordinge to then­dorsement, for howsoeuer the conclusion in the petition be, the endorsement may be alwayes as it shall please the king as me semeth, and accordinge to that the party must pursue it. And note that in euerye peticion where the kynge hathe graunted the lande ouer to an other, a Scire facias muste bee awarded against the patentee like as it shall be wheare a trauerse or Mōstrans de droit is tended, whiche patentee yf he haue not the whole fee simple but that ther is a reuersion in the kynge or that the kynge is bounde to warrauntie, when he appeareth vppon the Scire facias he maye praye a write of Searche to bee awarded into ye tresorie to search what theye can finde for the kynges title, as appeareth in .9 E. 4. f. 5 [...]. where Sottle sayethe that euerye peticion muste make mention of al the kyinges titles, for if it be found by the write of searche that anye be omitted, the peticion shall abate: & the reason of it is because that yf on this sute of pe­ticion the kinge take an issue with the partie which is foūd against him, his highnesse then shal be concluded for euer more to claime by any of the points conteyned in ye sayd pe­ticion. And here with agreeth ye boke T. 16 E. 4.16. E. 4. f. 6. But quere if search shall bee graunted vppon a trauerse or Monstrans de droit, because the statute of An 14. E. 3. cap. 13. that con­cerneth search doth speak only but of a peticiō, but to that it maye bee sayde that at the time of making of ye statut ther was noe trauerse geeuen. And Skrene sayeth .7.Peticion .6. Henry the fifth that search shal not bee granted but where one suethe by peticion. And note allso that in euerye peticion whe­ther it bee sued in the parliament or elles where, or whe­ther the landes remaine in the kinges handes or not in the [Page] kins hāds but be granted ouer, yet writs of search shallbee awarded to search the kinks title ere ye party shal ēterplede wt the king. Also [...] appereth in the boke of .16. E. 4. beefore remēbred ye in [...] a peticiō the kinges patētee had ayd of the king, & there appereth also yt if ye king be not entitled by any mater of record but without any title do entre into my land wherebye I sue vnto his highnes by peticion, yt in thys case no search shalbe graūted, because no title cā be entended for the kinge in suche case. Thus haue I opened & declared the maner of suing a peticion, but to declare specially where yt lyeth & where not it were a long mater to entreate of, But generally & by generall rules a man may brieflye declare it, that is to say, in all cases where the partie hath a right against ye king, & yet no trauerse or Monstrans de droit, will serue, ther is hee driuen to his peticiō. As for an exāple, wher the king is entitled by double mater of recorde. Like law is where he is entitled by a record not trauersable, as take the case, the kynge recouered by assent and wythout title, a straunger that hathe good title shall not salsifie this reco­uerie by a trauerse or Mōstrans de droit, but is driuen to his peticion, so it is where the kinge recouerethe by erronyous proces the partie shall not haue a write of errour, vntill he haue sued by peticion for it. So likewise it is if landes are holden of mee bye knightes seruice a straunger brynges a Precipe in capite of those lands against my tenant & recouereth by defaut, although by this recouerie, I am not put out of possession of mye seignorie but that the tenaunt holdethe of me as hee did before and also of the kinge by conclusion, yet in this case if the recouerer dye his heire wythin age, and the kynge seisethe the ward, I am driuen nowe to my peticion for the ward,17. E. 3. f. 36. as appearethe in .17. E. 3. for thys ys an other thinge than euer I was seised of. Allso it is a ge­nerall rule that where a straunger that hathe title can not [Page 74] entre vpon a cōmon parson but is driuen to his action, there he cā haue no remedy against the king but only a peticiō, as take the case to be. It is found by office the kings tenant in chiefe died seised his heire within age where in dede ye sayd tenant had nothing but by disseisin done to me, & I suffred him to die seised wtout any claim made, in this case I get no remedy by Monstraunce de droit or trauerse, but am driuen to mye peticion. And so in all cases like wheare mine entre should be tolled if the lands were in the hands of a commō person, as appeareth in 8. &. 9. H. 4.M. 7 H. 4. fo. 27. 36. et 41. T. 9. H. 4. f. 7 et 11. Also where as the kinge doth entre vpon me hauing no title by mater of recorde or otherwise and put me out, and deteines the possession frō me that I can not haue it againe by entrie without suite, I haue then no remedie but onely by peticion. But if I bee suffred to entre, mine entrie is laweful, and no intrusion: or if the king graunt ouer the lands to a straunger then is my peticion determined, and I may nowe entre or haue mye assise by order of the common law against the said straūger being the kings patentee, as appeareth in 4. E. 4. f. 23. &.Assise. P. 156 M 24. E. 3. f. 34. And a great difference is betwene this case & the case wher the king is entitled by double mater of record or suche like, for in these cases notwithstanding the graunt made ouer by his highnes of the lands to an other, yet am I driuen still to my peticion to the king and haue no other re­medye, but it is not so in this case: and the reason of this di­uersitie is because that when his highnes seiseth by his ab­solute power contrarie to the order of his lawes, although I haue no remedy against him for it but by peticiō for ye dignities sake of his person, yet when that cause is remoued & a comon person hath the possession, then is mine assise reui­ued, for now the patentee entreth by his owne wronge and intrusion, and not by anye title that the kynge geeueth hym for the king had neuer title ne possession to in that case: and [Page] therfore not lyke the other cases beefore, where the kynge hath the landes by the order of his lawes that is to saye by doble mater of record or such other like.Trauers. 134 And this apperethe in 4. E. 4. f. 21. et 25. et in. 24. E. 3. f. 34. et 33. li. ass. Like lawe is if I haue a rent charge oute of certaine lande and the te­nant of the land enfeffed the kinge by dede enrolled, nowe during the kinges possession I must sue by peticion, but if his highnes enfeffe a stranger I may distreine for my rent vpon the stranger, and so is it in all the cases before. where a man may haue his trauerse or monstrance de droit, if the lāds be once out of the kings hands, the party thē may haue his remedie that the comō law geueth him: for in all these cases the peticion did lye onely for the dignitie of his person and not for the right that he had to ye possession of the thing. But if the kinge purchaceth lands holden of mee, learne what remedie I may haue for my seignory during ye kinges possession: for wilby sayeth in 20. E. 3. that I haue no remedie in ye case and if his highnes make a feffm̄t of these lands to hold of him self,Assise. 124. yet can I not distreine for my seignorie like as I might do in the case of the rent charge before, bicause there can not bee ii. seignories of one self land, but am driuē to my petitiō in this case,Peticiō. 1 [...] for the king vpon this feffm̄t by order of his lawes shoulde haue reuiued the seignorie in mee that is to say, to haue a [...]de the feffee to hold of me of whome it was hold before, as appereth in 46. M. E. 3. &. 7. E. 3. f. 59 and so hathe it ben vsed alwayes where his highnes hathe lands by forfaiture of treson holden of a cōmon person, if he make a feffement of those lands it must be Tenend of them that they were holden of before as I haue opened vpon the xii. chapter of the kinges prerogatiue. And so it is where the time is cōcluded to his highnes for a mortmain: But that is geuen by the statut de religiosis. Also if the kinge disseise my tenāt, during this possessiō I haue no remedie for my seignorie but only by peticyon, & if ye kinge ēfeff mye tenāt to hold [Page 75] of his highnes, yet haue I no remedy for my seignorie, but only by peticion. But if one holde certeine landes of mee which are falsly found by office to be holden of the kinge in Capite, and the king seiseth them & enfeoffeth my tenaunt thereof to holde of his highnes, in this case I may nowe di­streine for my seignorie & am not oute of possession,Auowrye. 113. Assise. 122. 124. & these cases appere .20. 32. et. 46. E. 3. fo. 1 [...]. & the reason of the diuer­sitie is this, because that in the laste case my seignorie was neuer suspended, but euer more had his being and that not­withstandinge thoffice, for it did not appertaine to mee to trauerse thoffice and discharge the tenure, but that matter was left to my tenant to doe, and seeinge hee did it not hee hath charged him selfe of a tenure by way of conclusion to the kinge as well as to mee, but it is not so in the other case. Also it is to bee noted that if the kinge seise landes in title of Wardshippe and make a feffement thereof in thys case the heire neede not to sue his peticion but may haue a scire facias, to repele the said letters patents, because ye king was deceiued in his grant as it appereth. T. 7. H. 4. fo. 17. & M. 21. E. 3. fo. 50. For there the king himselfe is in possession still till liuerie be made so ye heire there hath no cause to sue by peticion, & the kinge is bounde to deliuer it vnto him in whose right he seised. Also note that sute by peticion can be to none other than onely to the king, for no such sute shal­be made to the Quene or to the lord prince, for these parso­nages haue no such prerogatiue, as it appeareth 10. &. 11.Trauers. 51. H. 4 et. 10. et. 14. E. 3. but though the kinge hee seised sometime in an other bodies right and not in his own,Peticion. 4 Voucher. 135. Scire facias 135. yet the sute that is to be made must bee by petition as well as if hee were seised in his owne right, as appereth .10. H. 4. And as I said in the beginning a manne shall haue his peticion for goods as well as for landes, as where theschetour seyseythe goodes of one that is outlawed and hathe accoumpted for them in the Eschequer and after thutlagarie is reuersed [Page] in this case ye partye hathe no remedy for his goods but onelye by peticion.Peticion. 8. And this case you shall see in .34. H. 6. How­beit Catesby & Hussey hold oppinion to the contrary here of M. 1.Peticion. 10 H. 7. And learne if a peticiō be sued for lands and the plaintife be nonsute whether it be paremptorie or not, bee­cause some saye that that sute is as it weare hys write of righte,Peticiō. 11. et 17. and hereof see the booke. 11. H. 4. & .3. H. 7.

¶Where a Scire facias must be sued before a lyuerye or Ouster le maine.

IF the king be seised of a ward and grantethe yt durante minore etate now when the heire com­meth of full age and sueth his general liuerie he nedeth not to sue a Scire facias against the patē ­tee, because his estat is determined by the ful age of ye heire, and yet it may be that the heire had forfaited his maryage vnto the patentee, and then hee hathe good cause to reteine the lande til he bee satisfied of the forfaiture. But the lawe shall not entende anye suche forfaiture to bee, and therefore ther nedeth no Scire facias be sued. Like law is it, as semeth if the king graunt the wardshyppe for no time certaine, but quamdiu in manibus nostris fore contigerit, if he make a special liuerie vnto the heire beeinge within age, there needed no Scire facias to be sued, so is it where the grant is but du­tante beneplacito nostro, but if the kyng haue land in ward and enfeffeth therof a straūger some think the heire nedeth not to sue any Scire facias against the feffee but at his plea­sure, and some other thinke he muste, beccause his estate is not determined by the full age of the heire, as it is in the firste case I put before. And it may be that an auncester col­laterall [Page 76] vnto the childe hath released with warrantie whi­che is descended which the feffee might pleade if he came in by Scire facias or els by the liuerie she saide warrantie is vt­terly lost, & these cases appeare P. 7. H. 4. f. 27. 30. & 43. 10.M. 12. E. 3. 50 2. H. 7. f. 2 H. 6. f. 20 M. 1. H. 7. f. 11. & .5. E. 4. f, 3. Howbeit me thīks it were wisedome for the heire to sue a Scire facias to thentent that he therebye with the kinges helpe mighte repelle the sayde letters pattents and bringe them as it were out of his way, whiche thinge hee may [...]oner bringe to passe by the kinges sute than by hys owne. Allso the heire when hee sues liuery nede not to sue anye Scire facias againste him that hathe the landes to ferme vppon a trauers, as appearethe in 1. H. 7.Liuery. P. 18 for hee hath noe terme certaine in the land but donec dis­cussum fuerit, whiche woordes are beecome voyde after the heire is of full age, because it can not be then discussed with oute preiudyce of the heire: and therefore voyde. Then fur­ther let vs see wheare hee that sueth by peticion or that tendeth his trauers or Monstrans de droit shall sue a Scire facias and where not. And as to that it is a generall rule that yf the kynge haue graunted the wardshyp of the landes ouer for any terme certaine, or granted any other certaine estate in the landes, he that sueth his peticion, Monstrans de droit, or trauerse muste sue a Scire facias againste the kinges pa­tentee in suche case,Trauers 25. but hee nedeth not to sue any agaynste the heire in whose righte the king is seised of the lande, be­cause he that sueth doth not pleade withe the heire but one­lye with the kynge or such as hathe his intereste, as appea­reth in 37. lib. ass. Like law it is if the kyngs grant be but durante beneplacito nostro, or that it bee made hangynge the trauerse, peticion, or Monstrans de droit, in this case hee that suethe neede not to sue any Scire facias. And these cases appeareth in 5. E. 4. f. 3. & 13. E. 3.Brief P. 260. And note that if the kynge graunt the wardshippe to one whiche graunteth it ouer to the husbande and to his wife, then must there a Scire facias [Page] be sued bothe againste the seconde lessee and the patentee, but the wyfe nede not to bee named in the Scire facias, For there lyethe no voucher in this Scire facias Howebeit in a writ of garde she shoulde haue bene named, but also of the voucher,Brief. 618. and this case is adiudged. 46. Edwarde the thirde and yet neuerthelesse Neuton is of oppinion in. S Henry the sixte f. 17. that no Scire facias shallbee awarded againste the lessee in this case but onelye against the kings patentee. And learne if the kinge grant but the bodie alone whether there nede anye Scire facias to bee sued or noe. Also note this case, that is to say, where the king seised forward­shippe beefore office and made a graunt ouer, and after office was founde wherbye it appeared that the childes fa­ther in whose right the kinge seised,Assise. P. 156 was but tenaunte for terme of life, the reuersion to an other, in this case he in the reuersion hadde an Ouster le mayne withoute suinge anye Scire facias againste the patentee, as it appeareth in .10. Ed­warde the thirde, and at this daye the case is more stronger for suche a graunt were voide beecause it is beefore office. And therefore vppon anye suche voide graunt there neede no Scire facias And in .14. Edwarde the fowerth fo. 1. it ap­pearethe that one had trauersed an office whiche was sente into the kinges benche to trye and had forgotten to sue his Scire facias, and yet hee was suffred to goe agayne into the Chauncerie to pray a Scire facias vpon the first trauerse for it was saide that the Chauncerie is a courte of conscyence and for that cause the thinge that was there amisse may be reformed at all times. And learne if this Scire facias bee su­ed againste manye and one of them dyeth whether this shal abate the trauerse, Monstrans de droit, or peticion wherup­pon it is sued or elles onelye the Scire facias, It semes that nothinge shall abate but the Scire facias because no mentiō is made of the tenaunt neither in a trauerse Monstrans de droit of peticion. And of this mater see the booke in M. 7 H. 4. fo. [...].

Ouster le mayne.

OVster le main is the iugement that is geuen for hym that tendeth a trauerse or sueth a Mōstrans de droit or peticion, for when it appeareth vpon the matter discussed that the kinge hathe no righte nor title to the thinge he seised, then iudgement shalbee geeuen in the Chauncerie that the handes bee amoued: and thereuppon Amoueas manum shalbee awarded to theschetour, whiche conteruailes as muche as if the iudgemente weare geeuen that hee shoulde haue againe his lande as appeareth, in 24 E. 3 f. 3 [...]. and this iugement sometime is geuen in the kin­ges bench and not in the chauncerie, & that is in case where the parties descende to an issue. then for the tryall thereof theye of the chauncerie muste awarde a venire facias retur­nable in the kings benche at a certaine daye, at whiche day notwithstandinge that the shirife returne not the writ, yet the Alias venire facias shall not bee awarded out of the chā ­cerie but oute of the kinges bench: for there and no where els it is recorded, quod vicecomes non misit breue, as ap­peareth in .13. E. 4. f. 8. And when the issu is found for ye par­tie they of the kinges bench shall gaue iugement & awarde an ouster le maine without suinge for the same in the chaū ­cerie, as appeareth in 21. H. 7. & .29.Liuery. P. 10 li. ass. and yet the recorde of the issue that was tryed was not sent thether but onelye ye transcript thereof, but what then, the iudgement is to be geuen vpon the verdit which is there of recorde, and when bothe courtes bee courtes of the common lawe and the kynges courts, theye vse not to remaunde anye thynge to the place from whence it came but to geue iugem̄t there where it is tryed, and Sharde sayde that when a recorde comes once into the kynges benche, it shall neuer go from thence. [Page] Also note that sometime there goeth an Ouster le mayne as well to the kinges patentee as to the eschetoure and that is where the kinge hath graunted the thing that hee seised to any other, but notwithstanding yt there go such wryttes of Amoueas manum bothe to theschetor and to the partie, yet the kynge is out of possession as sone as iugement is geuen in the chauncerie, not forcing whether any of these wryttes bee awarded or not either to theschetoure or to the partye: and thereupon the partie for whom iudgemente is geeuen may entre forth with into the landes and shalbee sayde noe intrudor,Assise P. 156. as appeareth in H. 10. E. 3. and the reason of yt is because the iugement tyethe not the kynge to the delyuerye of the possession, but onely to leaue hys handes of the posses­siō. And note that if a Diem clausit come to the eschetor, he hy vertue of that wryte beefore he make any enquirie may seise the lande for the kynges beehofe, whiche after he hath once seised, if after by office noe title bee found for the king then the party yt ought to haue agayn the land, may sue for the same in the chauncerye where the office is returned and then Amoueas manum shallbe awarded, for vntill the ma­kynge of a statute at Lincoln. Anno .29. E. 1. called the sta­tute De escaetoribus the partie hadde noe remedye in suche case but onelye to sue vnto the kinge himselfe, as it appea­rethe by the sayde statute, and nowe that statute geeues an Ouster le maine vna cum exitibus. Howbeit this Ouster le mayne maye not bee sued by parcels no more than a liuery and therefore if diuerse writtes or commissions bee awar­ded into diuers counties to enquire after the death of A. B and in one countie it is founde that hee holdethe nothynge of the kinge but in socage, and in the same countie and bye ye same ēquest it is foūd yt he holdeth of an other by knights seruice yet ye lord by knights seruice gettethe noe Ouster le main vntil ye other ēquests be also returned in, Causa qua sup̄ [Page 78] for if he should, then he should haue it for the lands and not for the body, and so should haue it by parcelles, for the bodie may not be deliuered as long as there is anye enquest to be returned in. And the reason of it is, beecause that enqueste may finde a tenure of the king by knights seruice in chiefe, in which case his highnes ought to haue the whole landes, and if it bee but a cōmen tenure by knyghtes seruice, yet hys highnesse at the leaste oughte to haue the preferrement of the bodye, yea & thoughe the lorde of whom it is founde to be holden be the archebyshoppe of Caunt or suche a one a­gainst whō the kings prerogatiue will not hold for the landes, yet because it holds for the bodies he getteth no Ouster le maine vntil al the offices be returned in, for the reason before made, as appeareth in 16. E. 3.Liuerie p. 29 Howbeit by fauour and grace of the court tharchebishoppe had his Ouster le maine beefore the other offices retourned. And so note howe in ty­mes past men haue sued Ouster le maine vpon a seisin ma­de for the kynge although the office founde afterward did not entitle his highnes. Howbeit at this day it is not so vsed, for theschetor will not seise vnlesse there be an office found, although he might lawfullye do it by the words of the writ Diem clausit, whiche vsage I do nothinge mislike, conside­ringe the great trouble it auoideth that might els ensue to the kinges subiectes. And note that in all cases where the king is seised or in possession of the lād by office or any other mater of recorde, his highnes seisin can not be deliuered out of him vntill suche time an Ouster le maine bee sued, as if the king be seysed by office of the lande of any Idiots, or for ānū diem & vastū of lands of any that is attainted, in these cases he that shoulde haue these landes after the kynges ti­tle determined muste sue an Ouster le maine, otherwise yt is where the kyng is not seised of the land but only entitled to the profites, as of the landes of him that is outlawed in a personall action, or of clerke conuicte or suche like, there [Page] nede no Ouster le mayne to be sued, as appeareth in .8. E. 2. 4.Trauers 28. E. 3. and .9. H. 6. f. 20. and if the landes whiche is seysed into the kynges handes bee holden ioyntlye bye manye yet euery one of them by hymselfe may sue hys Ouster le maine of his owne parte withoute his companions, as appeareth in .2.Assise p. 166. H. 4.

Lyuerye.

THe maner of the suing of a generall liuery doth part­ly appere in the title of Liuerie in the great abridge­mēt of Iustice Fitsherbert A. 12. H. 4. ti. Liuerie p. 4. & A. 21. R. 2. ti. Liuerie. p. 5. Wher it is declared yt after the heire that was in the kings warde is come to full age, then a writ De etate probanda shalbe awarded vnto the shirife of the shiere where the said heire was borne, to ēquire of his age, in which case it is required by the lawe yt euerye one that shall passe in that enquest shalbe of the age of .xliij. yeares, meaning therby yt they & euery one of them shoulde be of full age at birth of the childe, beecause that suche haue better knowledge and remembraunce then other of lesser age haue, and that the heire that is in warde enforme the enquest by certaine signes and tokens of the tyme of his birthe, as to say, that that yeare there was a great tempeste or a greate plague, or suche like, which signes so geuen in e­uidence shalbe returned by the shiriue as well as the prin­cipall mater. But whether it bee requisite to haue xij. or a lesse number in the sayde enquest or not, learn, for soome think that any number from two vpwarde will serue, bee­cause the triall is by proues, and see the newe Natura breui um fo. 136. wher it appereth that this writ of Etate ꝓbanda [Page 79] was directed to the eschetour of the countie where hee was borne and not to the shiriue. Howebeeit note alwayes that theye wheare the lande is shall neuer enquire of this mater, vnlesse the birthe and lande weare bothe in one shiere, for theye haue enquired of it allredy, that is to say when theye dyd fynde the firste offyce. Thus when theye haue founde his age, that enqueste shallbee returned into the Chauncerie, and from thence shalbee awarded a write to the Lorde Keeper of the priuie seale, signifying vnto him that the heire is of full age, and vppon that a priuie seal shallbee directed to the Chamberlaine of En­glande to receiue his homage, whiche beynge receiued, the sayde lorde Chamberlaine shall certifie the lorde Chaun­celler by write of the receipte thereof, and then shall the heire haue his liuerie. But it seemes that if the heire were neuer in warde but of full age at death of his auncester and so founde by office, that thenne hee shall haue liuerie as is declared vppon that office onelye, without suynge anye write of Etate probanda: for the writtes of liuerie in thys case make no mention of anye Etate probanda as they doe in the other case, but if the heire bee withein age and in the kyngs warde and after when he comes to his ful age other landes descende vnto him whiche the kynge allso seisethe by an enqueste that fyndes the heire of full age, yet this not withstandynge hee must now sue an Etate probanda vp­pon bothe offices, as appearethe in M. 13. Henrye the fo­werthe. And the reason of it is,M. 13 H. 4. beecause the fyndynge of hym of full age is but as voide as longe as there is a re­corde whiche founde hym within age, to the whiche record the kynge mighte cleaue vnto as the best recorde that ma­kethe for hym vntyll suche tyme the contrarie thereof be proued bye the wryte of Etate probanda. Howebeeit at this day the statut made Anno. 33. H. 8. hath much abridged [Page] the fees that haue bene geuen vpon the sute of a general li­uerie, namely for liueries to be sued of clere yearely value of v. li. or vnder, and that it may be sued without any office to be founde. But I do not see that the maner of the sute is in any other point altered or changed by the sayd statute but it remaines as it did before And that statute also geueth men licence to sue a generall liuerie of landes not excedinge the cleare yerelye value of .xx. li. whereby I see no let but that a man may sue his generall liuerie also for landes aboue the yerely value of xx li. as he might haue done before the ma­kynge thereof, for this statute is not contrarie to anye lawe that was before in that pointe, sauinge that a general lyue uerie vnder the value of .xx. li. can not passe or be sued yf he haue not firste his warrant from the maister of the kynges wardes and liueries, surueyours, atturneys, and generall receiuour, or three of them, signed and subscribed with their names and hands. Thus may you see the maner of the su­ing forth of a generall liuerie, which liuerie may not be su­ed by parcelles as I haue sayde before, but entierlye, that is to say, of all the landes the kinge is or ought to be seised of in his right that sues the liuerie. And therefore if the heyre sue liuery but of parcell of that that is founde by office, or yf the auncester we are seised of other landes than are foūd bye office, yf the heire sue his generall lyuerie beefore an offyce thereof founde omittinge them in the liuerye, the ly­uery is missued,T. 12. R. 2.44. E. 3. f. 1 [...]. et. 25. 2. H. 7. f. 2. as appereth in .12. R. 2. 44 E. 3. &. 2. H. 7. and therefore it beehoues the heire beefore hee sue his lyuerye to cause an office to bee foynde in euerye sheere where hys auncester hadde anye landes. And this entier lyue­rye is intended as well of landes holden of other lor­des beinge in the kinges handes as of the landes that are holden of the kinge, and therefore if a manne holde of the king in chiefe by knightes seruice, and of other lordes in [Page 80] socage and die his heir being a daughter within the age of xiiii. yeres, in this case when the sayd daughter cometh of the age of xiiii. yeres she getteth no liuerie of the lands holden in socage: but must tarry till she be of the age of xvi. yeres, yt she may then sue liuerie of the whole, as appereth .35. H. 6.H. 35. H. 6. Liuerie. 19. But note that in some cases one shal haue liuerie of parcel, and that is where landes descend to diuerse daughters and one is within age and the other of full age, now shee of full age shall sue liuerie with a particion of her parte of all thinges that are seuerable: and this liuerie is wel sued al­though it be not of the whole lāds descended, but if ther be any things in the kings hands not seuerable, as aduousons or such like, that must so remaine still vntill the other bee of full age, as appereth. 38. H. 6.38. H. 5. f. And so note that in a ge­neral liuerie if any thing be omitted, the liuerie is missued: and therfore some saye that after such a general liuerie had there shalbe a writ awarded to enquire of the concelement, that is to saye, whether the heir hath left out of his liuerie or not any of the lāds that were his auncestors, which writt is called breue de terris concelatis. And see the statut. 28. E. 3. ca. 4. that geues the rents to them that sue liuerie when the rent day cometh although it cometh next day after their liuerie. And loke more for liuerie in the expositiō vpon the third chapiter of the kings prerogatiue.

Reseisir

REseisir lieth where a general liuere or ouster le main is missued by any person or persōs vnduely and not according to the forme and order of the law, or vpon an office which is insufficient in the law for the par­tie to haue liuerie or ouster le main, in this case the king may [Page] reseise the lands without suing any proces against the partie,Liuerie P. 8. and shalbe aunswered of all the meane issues and profits receiued and taken from the time of their first seisier if it were sued out of his hands by an ouster le main, and if by a liuerie, thē but from the time of the liuerie. And the partie that hath pursued it shalbe accompted none other than as an intruder vpon the kings possession after office, in which case no freehold shalbe aiudged in him, nor his wife of that possession shal haue any dower, as appereth 18. E. 3. 21. E. 3. fo. 1.H. 2. E. 3. f, 1. 24, E. 3. 34. & 24. E. 3. fo. 34. But if one haue liuerie or ouster le main by due proces, and after a record is found in the tresorie or ells where, or an office in the contrie, whereby the kinge is ētitled of a title growē vnto hī before ye suīg of ye sayd lyuerie or ouster le main, although the partie shoulde haue had no liuerie or ouster le main in case the sayd records had then appered vnlesse he could haue auoided the sayd records, yet for as much as they did not then appere, he shal not bee nowe after liuerie or ouster le main cast out of his possession with out a Scire facias to be pursued against him, for so hath the statut prouided that was made at Lincoln in ye 29. yere E. 1 called statutum de Escaetoribus, the tenour wherof is this Ad parliamentum regis apud Lyncolne tentum in octa bis sancti hillarii anno regni sui vicesimo nono, per consilium regis concordatum est coram domino rege, ipso rege consē ­tiente et illud extunc fieri et obseruari precipiente, de consilio venerabilis patris w de langtō Couētr et Lychr. episcopi tunc eiusdē regis Thesaurarii, Iohannis de Langton Cancel­larii et aliorū de consilio tunc ibidem presentium, et coram rege, videlicet. Cum inquisiciones per escaetores suos capte per quecunque breuia Regis in cancellaria ipsius domini re­gis fuerint retorū, et per easdem inquisitiones compertum [Page 81] fuerit quod nihil tenetur de ipso domino rege, per quod custodie terrarum et ten̄ huiusmodi ratione inquisitionis in manum domini regis per ipsos escaetores capte ad ipsum do minum regem nullo modo pertineant: quod statim & abs­que dilatione aliqua mandetur per breue domini regis de cā ­cellar' precipiend' quod escaetores de terris & tenementis sic in manum domini regis per ipsos captis manum su­am amoueant omnino, & exitus si quos leuauerint de ip­sis terris et tenem̄tis sic in manū domini regis ꝑ ipsos captis de tempore quo terre & ten̄ illa in manu domini regis exti terint, integre reddant ipsi vel ipsis cui vel quibus per inqui­sitiones prius per eosdem escaetores captas compertū fuerit quod terra et tenementa illa debeant remanere, saluo sem­per domino regi, quod si postquam escaetores sui manus a­mouerint, per breue ipsius domini regis, vt predictum est, ali quid contigerit inueniri in cancellaria vel ad scaccarium, vel alibi in curia ipsius domini regis, per quod custodia terrarum aut ten̄ eorundem, de quibus escaetores manus suas amouerīt in forma predicta domino Regi pertineant, quod statim pre­muniatur ille, in cuius seisina tenementa predicta fuerint per breue de cancellaria, quod sit ad certum diem coram domi­no rege, vbicunque. &c. ostens. si quid pro se habeat vel dice re sciat quare dominus Rex custodiam earundem terrarum et tenementorum habere non debeat, iuxta formam eui­dentiarum seu memorandorum pro ipso rege comperto­rum. Et si venerit, & pro se osten dat quare eadem custodia ad dominum regem non pertineat aut pertinere non debeat immo quod remanere sibi debeat recedat quietus, & custo­diam suam retineat. Si autem premonitus non venerit, vel venerit, & nihil sciat dicere, quare rex custodiam illam habe re non debeat▪ statim resesientur terre & tenementa illa in manum domini regis nomine custodie tenend. vsque ad legittimam eratem hered. eorundem, sicut superiꝰ dictum est [Page] Et si compertum fuerit per inquisitiones per escaetores suos factas et retornatas, quod custodia eorundem terrarum et ten̄ in inquisitionibus contentorum, et in manum domini sei­sitorum domino regi remanere nō debeat, quod statim māde tur escaetoribꝰ quod manus suas amoueant, et exitus integre reddant. &c. Eodem modo si postea compertum fuerit per euidentias & memoranda in cancellaria aut scaccario vel ali­bi, vt predictum est, quod dominus rex custod' eorum habe­re debeat respondeatur ipsi domino Regi de exitibus integre per manus illorum qui terras, aut tenementa illa tenuerint a toto tempore, postquam terre et tenementa illa primò in manum ipsius domini Regis per escaetores su [...]capta fuerīt per breuia supradicta, & iste modus de cetero obseruetur in cancellarie, nō obstante quadam ordinatione nuper per do­minum regem facta de terris & ten̄ in manum suam per mi­nistros suos capt' & non liberand' nisi per ipsum dominum regem, & prout continetur in quadam diuidenda inter ip­sum regem & cancellarium facta. Cuius vna pars penes can­cellarium remanet. Statutum de escaetoribus editum .29. E .2. Also a yeare before the makinge of this statut was there an other statut made entitled articuli super cartas which in the 19. chapiter therof saith in this wise. De rescheiue la ou lesche tour ou le vicont seisont en le main le roy terres la ou il nad reson de seiser, et puis quant troue est la non reson les issues de mesne tēps ount este ceo en arrere retenꝰ et nad rendus quant le roy ad le main ouste, voet le roy que desormes la ou terres sont issint seisies et puis le main ouste pur ceo que il ny ad raison de seiser ne tenir soient les issues pleinment rē ­dus a celuy a qui la terre demurt et auoit le dam̄ resceu. By this statute it plainly appereth how that before the ma­king therof therewas no ouster le main graunted vna cum exitibus although it might neuer so plainly appere that the kinge had no cause to seise. Howbeit that mischief is now remedied by both these statutes. Also by the one of these sta­tutes. [Page 82] Also by thone of these statutes it appeareth that the Ouster le maine in suche case might not be graunted with­out suinge to the kinge himselfe, which is also remedied by this statut de escaetoribus, which statute although it make no mencion of liueries, but onely of ouster le maine, yet ly­ueries are taken to bee within the compasse and prouision of the same. And where the letter goeth onelye to the cases where the kinge seiseth before office,9. E. 4. 54. and after warde thof­fice that is founde doth giue his highnes no title, that there the party may haue his Ouster le maine makinge no men­cion of an Ouster le maine to be graunted vppon anye peti­cion, trauerse, or Monstraunce de droit, as in deede a tra­uerse was not in vre at that time, yet men by an equitie ex­tende this statute de Escaetoribus bothe to the one and too the other, because the statute is beneficiall, as it appeareth 9. E. 4. and in diuers other bookes. And Yeluerton there saieth that if after liuerie or ouster le maine an office bee founde whiche entitleth the kinge of a title growen vntoo him since the liuerie or ouster la maine granted that in that case this statute notwithstanding the kinge may reseise wt ­out a Scire facias, for the woordes are onelye where a record or an office is founde that maintaineth the title whereby ye kinge first seised. Howbeit manye holde oppinion againste him, and saie that it was in the selfe same mischiefe the sta­tute was made for, tamen quere, for this statut de escaetoribus shoulde seeme to be meant onely to remedy that ye was a mischief at comō law before ye making of ye said statut, as where there was no record found at ye time of ye liuerie or ouster le maine sued to let or hinder the partie from suynge of theire saide liuerie or ouster le maine, but afterwardes was there found such a record, now this notwithstandinge would the king reseise & putt the partie from his possession wtout answer or any proces sued against him, wherupon he might answer & so driue him to sue by peticion & make him [Page] render all ye mene profite, which was a greate mischiefe & hinderance to ye partie, for remedie whereof this statut was made: but the like mischiefe or hinderance is not where the kinge is entitled by a title growē since the liuerie or ouster le maine, for here ye partie shall not aunswere the profites but frō the time of this title growen. And also the kyng doth him no wronge, for it standes wt and affirmes ye liuery or ouster le maine, & the king thereby makes not yt party an intrudor as he doth in the other case, & if the said Yeluertons opinion should not be lawe, they woulde make yt the kinge could not seise vpon an alienacion wtout licence made and found by office since ye liuerie or ouster le maine sued, which were no reson, & therefore I think the saide Yeluertons opi­nion should preuaile in this case. And to the same intente & effect be those bookes yt I can fynd, for I can finde no Scire facias sued but in cases of a title growen before the liueries or ouster le maine: & therefore in a Scire facias sued vpō this statute against ye party yt had liuerie or ouster le maine bee­ing tenant of the land at ye time of Scire facias sued he was den [...]ed in the selfe same plight & course against the king as he was at time of ye suing of his liuerie or ouster le main: for where he had made a feffement by licence & taken an e­state againe iointly to him & other, yet this scire facias dyd lye against him soly & did not abate, for the iointenauntes. So was it aiudged in a scire facias sued vpon this statute ye the partie must maintaine the title, whereby he hath liuery or ouster le maine, & must maintaine it so that it is & was a good title & sufficient to haue liuerie vpō, notwithstanding any recorde that is now found, as take the case to bee this, one hath liuerie as sole daughter & heire, & after by office it is founde yt she hath a sister, which ought to haue had liueri wt her, wherupon a scire facias is sued against the partye yt had liuerie, to come & shew why the land should not bee re­seised, if she come & will saye that they be daughters by se­ueral [Page 83] ventres, & that this lande was geeuen to her father & mother in speciall taile, & so ought shee to haue the liuere as she had, ye is to say soly, this plea wil not serue her, because it doth not mainteine ye liuerie: for how could she haue had liuerie soly, vnlesse this matter had bene so found by office. For if this second office had appeared before the liuerie, she coulde not haue trauersed it, vnlesse she had made title, and then title can shee neuer make againste the kynge as heyre vnlesse the saide title bee firste founde by office. Wher­fore no more than she might trauerse the said office if it had bene found before liuerie,Trauers, 31. no more may she trauerse it now in this scire facias after liuerie, as it appereth 30. li. Ass. and so note that ye recorde can not bee trauersed in this scire facias in no case vnlesse it were trauersable before liuery or ouster le maine. Also in the new Natura breuium fo. 26 [...]. and in .5.H. 5 H 5. H. 5. I finde a scire facias sued vpon this statute against him that had liuerie, because an office hath found an other to be nerer heire to the auncestour that dyed than was hee that sued liuerie. So alwaies as farre as I can finde it is sued vppon a recorde ye disproues the liuerie or ouster le maine, and not vpon any that affirmes it, whereby I suppose that yeluertons opinion is lawe as is beefore declared. And it semes that by this statute the king must sue a scire facias al though the recorde or title that is found for him bee founde within a yere after liueri or ouster le maine sued. And lerne whether Assise lye against ye eschetour that sesseth without a scire facias in cases where a scire facias should be sued. For by ye sta. of W. 1. ca. 24. assise lieth against him in cases wher he seiseth anye landes by colour of his office wtout speciall warrant or commaundement or certeine authoritie that be longeth to his office so to doe. And learne whether the king by that seisure hath any possession, for if the king seise with­out a scire facias where he ought to sue a scire facias, the par­tie hath no remedy but to sue vnto him by peticion euen as he should do if his highnes had seised any other lands of his [Page] without cause. Howbeit the king by such a reseiser vndoeth not the parties possession, so that he shalbee saide an entru­der from the time of the liuerie or ouster le maine sued as it doth in case the reseiser had bene vpon a scire facias, wher­fore in such case although the partie cannot be suffred to re­couer his possession againe by entrie vppon the king, yet when the kinge graunts it ouer, he may now enter or haue assise,Trauers. 26. as appeareth .24. E. 3 fo. 34. et. 43. li. Ass. Also note yt this statute that geeues the scire facias extendes but vntoo him or them haue liuerie or ouster le maine or anye other claiming by them. For if after liuerie on ouster le maine sued a stranger by an eigne title in disaffirmyng the tenāts interest enter as heire vpon him, or recouer by assise of mor dauncester or any other accion auncestrell against him & is entred into the land as heire, nowe because the landes are holden of the king in chiefe, his highnes may seise the saide land for primer seisine or title of Wardshippe as the case doth require without any scire facias, 21. E. 3. fo. 1. as appeareth .21. E. 3. For it is not to be said now a reseiser, because against hym there was no seiser made of the saide landes before. And lerne & enquire if he that missueth the liuerie be within age whether the king shal reseise in that case as he shall doe if it were missued by one of ful age, as take y case to bee, landes are holden of the kinge in Socage in Capite, now the liue­rie is sued within age, that is to saye at the age of .14. yeres whether in this case ye missuing of ye same shall be a cause of reseiser or not,T. 12. R. 2 see the booke thereof 12. R. 2. The wordes of the statute be further, that if any record be found in the tre­sorie or elles where that vpon this record a scire facias shall be awarded. But that is to bee vnderstande in this maner, that first the transcript of the said record shalbe by writ re­moued into the Chauncerie and then out of the Chauncery shal there be a scire facias awarded, & not out of the tresory as it appeareth .21. [...]. li. ass. lib. Ass.

Issues mesne

NOte that if ye king haue a title, right or interest to any lands or tenements, his highnes whē he seiseth shal be aunswered of all the mesne issues and pro­fites from the time of his sayd title, right, or interest growen, and whether it be a right of entre or title of entre it maketh no diuersitie in the kinges case, as for an example, the king entreth for a condition broken, his highnes shalbe answered of all the issues and profites sins the condicion broken, and yet in that case a common person shal not haue the issues and profites but from the time of his entrie. Like law is it if the kinges tenaunt a [...]en in mortmain, and the kinge entreth, but otherwise it is if he entre for mortmain in lands not holden of him vpon a title deuolued vntoo his highnes in defaut of other lords. And these cases appere H. 19. et 41. E. 3. fo. 21.19. E. 3. En­tre cōg. P. 39. The same law is it where his highnes is entitled to seise for that the lands are of his foundatiō, and aliened contrarie to the statut of west .2. ca. 41. which geues the writtof contra formā collationis, H. 46, E. 3. Forf. P. 18. in this case his highnes shalbe answered of all the mesne issues growen from the time of the alienatiō, as appereth H. 46. E. 3. And note also that if the king make any graunt which is not sufficient in the law or is deceiued in the making of the same by reason it was made vpon a false suggestion, in his case if this highnes doth resigne this grāt & adnull it iure regis as he may, he shalbe then be answered of all the mesne issues & profits which were lost by reason of the sayde insufficient graunt, as appereth .11. H 4. But if his highnes bee entitled to any lands nomine destriccionis, there his highnes shall not bee answered of the profites, but from the finding of that title,11. H. 4. f. [...]. as in case where the kinges tenant in chief alieneth with­out [Page] licence and an office is therof found, in this case his highnes shal not be answered of the profites from the time of that alienation, but onely from the tyme of the findinge of the office, or from the tyme of a Scire facias retur­ned wher the alienatiō is of record,P. 8. e. 4. f. 4 and herof see the booke 8. E. 4. Like law is where his highnes is to seise the lands of his widow that hath maried her selfe without his licence.40. li. Ass. Gard P. 36. And note that where the king is to be āswered of the mesne issues and profits perceued and taken of any landes which haue come to sōdry hands sins the kings title first growen to the same, there euery one of them yt haue sondrely so perceiued and taken the profits shal answer for his owne time and not one for all, as it appereth in the boke of 46. before remembred. And note also that by the statut of w. 2. ca. 32. it is prouided that if any spiritual man bring any real action and recouer, that the land recouered shall remayne in the kinges hands vntill such time as it be sued out of his hands by him that recouered, or els by the chiefe lorde and in the meane time the shiriue shal aūswer the kinge in ye eschequer of the profites, by which statut whether the collusion bee found or not found, yet the king shal haue the meane issues as it is thought 20. H. 6.20. H. 6. f. [...] So it is in a writ iudicial of deceite brought against any the king shall haue the issues growen from the time of the first iugement vntill iugement be geuē in the sayd writ of disceit.

¶Some tymes the kynge recou [...]eth of the issue in the allowance of an estraunge tytle, as yf the husband beynge the kynges tenant vpon a false suggestion purchaseth lycence to aliē & to take estate to him & to his wife, & so doth, & after­ward dyeth, the wife holdeth her in by title of Suruiuor & occupieth, nowe vpō a Scire facias against the wife, his highnes shalbee answered of all the meane issues since her occu­piynge of the ii. parts of the land, and the thyrd part he recopeth and alloweth for her dower .40. li. Ass. P. 36.

¶Note that in a writ of disceit vpon a recouery in a Preeipe quod reddat of land where the proces was a grād Cape, 40. Li. Ass. Gard. P. 1. if the pleintyfe recouer, he shall recouer the land and his da­mages, but not the issues of the land synce the fyrst iudge­ment, because the kinge shall haue them by the graunde Cape, and the shirife accomptable of thē. quod vide titulo disceit in Fitz P. 33. 46. 7. 32. Contrarie lawe is it if there lie no grand Cape in the action, as if the recouerie be in a Scire fa­cias, as it appereth titulo Disceit in Fitz P. 36. & 27.

Finis

Diuers other prerogatiues therbe, which ye kīg hath by the order of ye comō law yt be not wtī this statute cōprī sed, a great part wherof vnder ye title of Prerogatife master Fitz herbart hath most diligētli noted in his great Abridgmēt, & so well ordred & placed there, yt I doo of purpose omit to reherse them here. The rest woulde require so longe a serche that oneles I had gathered and noted them al redie (as I haue not dōe in dede) I should be faine to per­use the hole bodie of ye comō Lawes for the knowleg therof wheruntoo time seruethe mee not, wherefore at this time myne intent is not to medle with them.

Imprynted at Lon­don in flete strete within temple Barre at the signe of the hand & starre. by Rychard Tottel, An. 1567.

Cum priuilegio.

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