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.