Chapter XV: Book XII

OF THE PLEA OF RIGHT; AND OF DIFFERENT WRITS OF RIGHT,
DIRECTED TO THE SHERIFFS OR LORDS OF THE FEE, UPON VARIOUS
OCCASIONS.

CHAP. I.

The preceding Pleas of Right are, directly and in the first instance, commenced in the King’s Court, where, as we have observed, they are discussed and terminated. But some Pleas of Right, although not in the first place commenced in the King’s Court, are sometimes removed there, when the Courts of different Lords are proved to have failed in doing Justice; for then such Pleas may, through the medium of the County Court, be transferred from thence to the Chief Court of the King, for the various causes shewn in a former part of this Treatise.[424]

[Footnote 424: Vide L. 6. c. 8.]

CHAP. II.

When, therefore, a person claims any Freehold Tenement, or a Service, as held of another by free service, he cannot draw the person holding it into a Suit, without the King’s Writ, or that of his Justices. He shall, therefore, have a Writ of Right, directed to the Lord of whom he claims to hold. If the Plea concern Land, such Writ will be as follows——

CHAP. III.

“The King to the Earl of _W._, Health.[425] I command you, that without delay, you hold full Right to _N._ of ten ploughlands in Middleton, which he claims to hold of you by the free service of one Knight’s fee for every service; or by the free service of one Hundred Shillings by the Year for every service; or by the free service of which twelve ploughlands make a Knight’s Fee for every service; or which he claims to belong to his free Tenement that he holds of you in the same Vill, or in Mortune by the free service, &c. or by the service, &c.; or which he claims to hold of you as the free Marriage-hood of _M._ his Mother; or in free Burgage; or in free Alms; or by the free service of going with you in the King’s Army with two horses at his own cost for every service; or by the free service of finding you one Cross-Bowman[426] in the King’s Army for forty days for every service; of which _R._, the Son of _W._, had deforced him; and, unless you do so, the Sheriff of Northampton shall, least I should hear any more complaint for want of Justice. Witness, &c.” But Writs of Right of this kind are usually infinitely diversified for different causes, as, indeed, will appear from the various forms we shall presently give. But, if the Plea concern a service, the Writ will be as follows——

[Footnote 425: Vide F.N.B. 2.]

[Footnote 426: _Arbelastarium_ from the French _arbalestier_. In the distribution of Estates by William the Conqueror, the _Arbelastarii_ were reckoned among those noble and military chiefs, the Peers of the Realm. This appears from some passages in Domesday. (Spelman Gloss. ad voc.)]

CHAP. IV.

“The King to _N._ Health. I command you, that without delay, you hold full Right to _N._ of a hundred shillings of Rent in such a Vill, which he claims to hold of you by free service, &c. or the service, &c.; and, unless you do so, the Sheriff of Oxford shall do it, least I should any more hear a complaint for want of Justice. Witness, &c.”

CHAP. V.

“The King to _R._, Health. I command you, that justly and without delay, you cause _N._ and _A._ his Wife to have their reasonable part which belongs to them of one Messuage, in such a Vill, which they claim to belong to their free Tenement, that they hold of our Lord the King, in such a Vill, by the free service of two shillings by the year; or of one Mark Rent, in such a Vill, which they claim of the free Marriage-hood of the said _A._, of which they complain that _B._, the sister of _A._, has deforced them, or that _G._ has deforced them. And, unless you do so, the Sheriff shall do it, least any further complaint should be made for want of Justice. Witness, &c.”

CHAP. VI.

These Suits are in the habit of being conducted in the Courts of Lords, or of those who fill their places, according to the reasonable Customs prevailing in their Courts; which are so numerous and various, that it is scarcely possible to reduce them into writing.[427]

[Footnote 427: The Regiam Majestatem and Bracton avail themselves of the same excuse, for declining to enlarge on the subject, though the latter observes, that in demanding a view—in vouching to warranty—in proposing exceptions and in waging the Duel, &c. such Courts followed the King’s Court—(329. b.)]

CHAP. VII.

These Courts are proved to have failed in doing Justice in this manner. Upon the Demandant’s complaining to the Sheriff in the County Courts, and producing the King’s Writ, the Sheriff shall send one of his Officers to the Lord’s Court on the day appointed the parties by the Lord of such Court, in order that the Officer, in the presence of four or a greater number of the lawful Knights of the County, who by the Sheriff’s command shall attend there, might hear and see the proof of the Demandant, namely, that such Court had failed to do him Justice in his Suit. That the fact is so, the Demandant shall prove, by his own oath and that of two others, who have heard and known the fact, and shall swear with him.

Under such solemnity, then, Pleas are generally removed from these Courts into the County Court, and are there again discussed and finally terminated, without any contradiction or recovery on the part of such Courts, or the Lords of them, or their Heirs, so far as concerns the Plea in question. But if, previously to such Court being proved in the manner we have stated to have failed in doing right, any Plea should be drawn from it to the superior Court, the Lord of the inferior Court may take advantage of such circumstance and on the day appointed for the Trial of the cause reclaim his Jurisdiction; because his Court has not been proved to have failed in doing Justice; and thus he shall be adjudged to recover it, unless it be there proved, that his Court failed in doing Justice, as before remarked. It should, however, be observed, that if a Plea has been so drawn to the King’s Chief Court, it will be in vain for the Lord to reclaim it on the day of trial, unless, on the third day preceding, he had claimed it, in the presence of lawful Men.

But if no day be given to the Demandant on which to make his Complaint, and he has experienced a delay, it will suffice for him to falsify the Court, under the form before mentioned, in whatever part of the Fee he may chuse, if the Lord has no residence[428] within the Fee, it being lawful for him, as Lord, to hold his Court there, and put a day to the Demandant, in whatever part of his Fee he chuses. But he cannot legally do so out of his Fee.[429]

[Footnote 428: _Reseantisam._ Vide ante p. 10. Note 1.]

[Footnote 429: With this concur the Mirror, (c. 2. s. 28.) (Bracton 330. a.) and the Grand Custumary of Normandy, (c. 6. and 61.)]

CHAP. VIII.

But the Writ to be obtained ought to be directed to him only, of whom the Demandant claims to hold, and not to another, nor even to the Chief Lord. But, it may here be asked, what will be the consequence, if the Demandant claim to hold of one Lord, and the Tenant of another? In such a case, since the Lord to whom the Writ is directed cannot take cognizance of the suit, and unjustly and without a Judgment disseise another Lord of the right of holding a Court, of which he is understood to be seised, recourse must necessarily be had to the County Court, where the Suit shall proceed; or, in the Chief Court, so that both the Lords ought to be present there by Summons, in order that the thing should be discussed before them, in the manner we formerly mentioned when treating of Warranties.

CHAP. IX.

To the Sheriffs, indeed, not only belong the foregoing Pleas of Right, when the Courts of the Lords are proved to have failed in doing Justice, but some other Pleas. When, for Example, any one complains to the Court, that his Lord exacts Customs and Services that are not due, or greater services, in respect to the freehold the Tenant holds of him, than he ought:[430] when the Plea concern a Villein-born, as before observed: or when, generally speaking, any other matter occur of which the Sheriff has the King’s Writ, or that of his Chief Justice, for the purpose of holding Jurisdiction over any one, or that he himself should do right, unless another does so, as before mentioned; whenever any such Pleas occur, it belongs to the Sheriff to hear and decide upon them. Some of which appear from the following Writs.

[Footnote 430: Vide 2 Inst. 21.]

CHAP. X.

“The King to _N._ Health.[431] I prohibit you, least you unjustly disturb _H._ or permit him to be disturbed, concerning his Free Tenement, that he holds of you in such a Vill. Nor exact from him, nor suffer to be exacted, Customs or Services which he ought not to render you, or which his Ancestors did not, nor ought to have done, in the time of King Henry my Grandfather; and, unless you do so, the Sheriff shall, least he should any more complain.——Witness &c.”

[Footnote 431: Vide F.N.B. 21.]

CHAP. XI.

“The King to the Sheriff, Health. I command you, that justly and without delay, you cause _M._ to have _R._ his Villein-born and fugitive, with all his Chattels, and with his whole issue,[432] wheresoever he is found in your Bailiwick, unless the fugitive be in my Demesne, after my first Coronation. And I prohibit, least any one unjustly detain him under forfeiture, &c. Witness &c.”

[Footnote 432: _Cum totâ sequelâ suâ._ Mr. Barrington having observed, that if Villeins were born within a certain District, they and their issue were the Bondmen of the Lord, proceeds thus,—“This explains what frequently occurs in ancient grants of Villeins, _cum totâ sequelâ suâ_, which, according to Sir James Ware, in his account of the Betaghii, (who were the Irish Villeins,) included not only Children but Nephews, p. 149. See also Madox’s Form. Angl. p. 416.” (Barr. Obs. on Anc. Stat. p. 306.)]

CHAP. XII.

“The King to the Sheriff, Health.[433] I command you, that justly and without delay, you cause _G._ to have his Beasts by Gage and pledges, of which he complains that _R._ has taken them, and unjustly detains them, for the Customs which he exacts from him, and which he does not acknowledge to owe him; and, in the mean time, cause him justly &c. least &c.”

[Footnote 433: Vide F.N.B. 152.]

CHAP. XIII.

“The King to the Sheriff, Health. I command you, that justly and without delay, you cause to be admeasured the pasture in such a Vill, which _I._ who was the wife of _P._ and _R._ her sister, complain that _H._ had unjustly surcharged; nor permit that the aforesaid _H._ should have in that Pasture more beasts than he ought to have, and than belongs to him to have, according to the extent of the Fee which he has in that Vill, least &c. Witness &c.”

CHAP. XIV.

“The King to the Sheriff, Health. I command you, that without delay, you command _R._ that, justly and without delay, he permit _H._ to have his Easements[434] in the Wood[435] and in the Pasture of such a Vill, which he ought to have, as he says; as he ought to have them, and usually has had them; and that you permit not the aforesaid _R._ or any other to molest or injure him, least &c. Witness &c.”

[Footnote 434: _Aisiamenta_—from the French _aise_, _voluptas_. (Spelm. Gloss. ad voc.)]

[Footnote 435: _Bosco._ This word sometimes means the wood merely—sometimes it includes the land on which the wood grows. (Co. Litt. 4. b.)]

CHAP. XV.

“The King to the Sheriff, Health. I prohibit you, least you permit, that _R._ unjustly exact from _S._ for the free Tenement which he holds of _N._ of the Fee of the said _R._ in such a Vill, more service than belongs to that free Tenement that he holds; and that you cause to be replevied to him his Beasts, which were taken for that demand, which he does not acknowledge, as belonging to the Free Tenement he holds; until the Plea be heard before us, and it be known, whether such service is due or not. Witness &c.”

CHAP. XVI.

“The King to the Sheriff, Health.[436] I command you, that justly and without delay, you make reasonable divisions between the Land of _R._ in such a Vill and its appurtenances, and the Land of _D._ in such Vill, as they ought to be, and are accustomed to be, and as they were in the time of King Henry my Grandfather, of which _R._ complains, that _A._ has, unjustly and without Judgment, encroached more than belongs to his free Tenement in that Vill, least &c. Witness &c.”

[Footnote 436: Vide L. 9. c. 14. where a similar writ occurs.]

CHAP. XVII.

“The King to the Sheriff, Health. I command you that justly and without delay, you cause to abide, the reasonable Division which _R._ made to the Brethren of the Hospital of Jerusalem of his Chattels, as it can be reasonably shewn that he made it, and that it ought to be abided by. Witness &c.”

CHAP. XVIII.

“The King to the Sheriff, Health. I command you, that you compel _R._ that justly and without delay, he returns to _N._ his Chattels, which he claims that he took, unjustly and without a judgment, in his Freehold, in such a Vill, since the Disseisin which he did him, since my Assise, of which he recovered his Seisin before my Justices by a Recognition of Novel Disseisin, as it can be reasonably shewn that he ought to have them, least &c.”[437]

[Footnote 437: Vide 2 Inst. 311.]

CHAP. XIX.

“The King to the Sheriff, Health. I command you, that you cause a delay until a certain fit time, when you can be present, of the Recognition which is summoned between _R._ and _M._ concerning the divisions[438] of such Vills, which by my Justices of those parts is injoined to you and _H._ to take before you; for the taking of which, as it is said, you have deputed others in your place, because it is not the Custom that when any matter appertaining to my Judges[439] is injoined to others to be executed, that they should transfer over to others again any thing which appertains to my Judge. Witness &c.”

[Footnote 438: Vide ante p. 133. Note 1.—As to the latter part of the present Writ, our author surpasses even himself in quaintness of expression.]

[Footnote 439: _Ad Justicias._ _Justicia_, a Justice, or Judge, or, as it has in subsequent times been written, _Justiciarius_. (Vide Selden op. Omn. 1669. Madox’s Exch. 24. &c.) Mr. Selden considers the use of this term by Glanville as a proof, that the work itself is of the age of Henry the 2nd, as we have already observed, in our introductory address to the Reader.]

CHAP. XX.

“The King to the Sheriff, Health. I command you, that justly and without delay, you cause _A._ who was the Wife of _R._ to have her reasonable Dower of the whole Fee that was the said _R._’s, exactly and in every thing, save to his Heir the capital Messuage, and that you cause the said Wife to have another messuage, unless any Land in which there is no Messuage may have been named to her in Dower; and it shall not cease, because the Fee of the aforesaid _R._ is held of my Barony, because, I will not, nor does the Law require, that the Wives of Knights should on account of this lose their Dower. But, of the Chattels that were of the aforesaid _R._ I command you, that you cause them all to be in peace, so that no part be removed, neither to make division, nor for any other purpose, until his debts are entirely discharged; and of the residue there shall be afterwards a reasonable division made, according to the Custom of my Land. And, if any part of the Chattels of the aforesaid _R._ shall have been removed since his death, it shall be returned to his other Chattels to pay his Debts. Witness &c.”

CHAP. XXI.

“The King to the Ecclesiastical Judges, Health.[440] I prohibit you, least you hold the Plea in Court Christian, which is between _N._ and _R._ of the lay Fee of the aforesaid _R._ of which he complains that _N._ draws him into Plea in Court Christian, before you, because such Plea belongs to my Crown and Dignity. Witness &c.”

[Footnote 440: Vide F.N.B. 90.]

CHAP. XXII.

“The King to the Sheriff, Health. Prohibit _R._ least he should follow the Plea in the Court Christian which is between _N._ and him of the lay Fee of the aforesaid _R._ in such a Vill, of which he complains that the aforesaid _N._ draws him into Plea in Court Christian before those Judges. And, if the aforesaid _R._ shall make you secure of prosecuting his claim, then, put by Gage and safe Pledges, the aforesaid _N._ that he be before me, or my Justices, such a day, to shew wherefore, he has drawn him into Plea in Court Christian, concerning his lay Fee, in such a Vill, as such Plea belongs to my Crown and Dignity. Witness &c.”[441]

[Footnote 441: This Writ stands also in need of a Transposition of the Capitals to render it intelligible.]

CHAP. XXIII.

With respect to the manner or the right of commencing or terminating these Pleas, or others in different County Courts, I forbear to speak, as well on account of the different Customs which prevail in different Counties, each observing its own peculiar Customs, as of the brevity of my proposed object, no Pleas coming within the scope of it, but those which are usually discussed in the King’s Chief Court.

CHAP. XXIV.

It should also be observed, that in a Writ of Right sometimes less is comprised than is inserted in the Count in Court, as well respecting the Appurtenances as other things; but sometimes more is included. Sometimes there is an Error in the Writ, as to the name inserted in it, sometimes concerning the quantity of Services. When, indeed, less is contained in the Writ than in the Count, the party cannot demand more by force of the Writ, than is comprised in it. But when more is contained in the Writ, than in the Count, the Excess which is comprised in it may be remitted, and the residue may be claimed by virtue of the Writ. But, if there be an Error in the name, then, by strictness of Law, another Writ must be sued out. But when the Error concern the quantity of service, the Writ, in strictness of Law, is also lost.

Yet, as it sometimes happens, that a Tenement is demanded by less service than is due in respect of it, or than has been accustomed to be rendered to the Lord, it may be asked, whether the Lord is bound by the Writ to do right to the detriment of his own service? He is, indeed, bound; but should the Demandant happen to prevail, the Lord after Eviction may recover against the party evicting him.[442]

[Footnote 442: Namely, the services really due in respect of the Tenement.]

CHAP. XXV.

It should also be added, that, according to the Customs of the Realm, no one is bound to answer in his Lord’s Court, concerning his Freehold Tenement, without the King’s precept, or that of his Chief Justice; I mean, if the Fee in question be a lay one.

But, if the Plea should be between two Clerks, concerning a Tenement held in Frankalmoigne of an Ecclesiastical Fee, or if the Tenant, a Clerk, hold an Ecclesiastical Fee in Frankalmoigne, whoever may happen to be the Demandant, the Plea concerning the Right ought to be in the Ecclesiastical Court, unless a Recognition should be demanded, whether the Fee in question be Ecclesiastical or lay, of which we shall presently speak. For then such Recognition, as, indeed, certain others, must be held in the King’s Court.