chapter common plea shall not follow our court but shall be hold in some place  certain before this statute common plead may have be hold in the king bench  and all original writ retournable into the same bench and because the court be  hold in person king and follow the king court and removable at the king will  the return be wherever to be c whereupon many discontinuances ensue and great  trouble of juror charge of party and delay of justice for these cause this  statute be make common plea here it be to be understand a division of plea for  placita be divide in placita coronae and communia placita placita coronae be  otherwise and apt call criminal  or subject to death and placita communia be  apt call citizens placita coronae be divide into high treason misprision of  treason petit treason felony c and to their accessary so call because they be  contra crown rank and of these the court of common plead can hold plea of  these you may read at large in the three part of the institute common or civil  plead be divide into real personal and mix they be not call placita coronae as  some have say because the king jure coronae shall have the suit and common  plead because they be hold by common person for a plea of the crown may be  hold between common person as a appeal of murder robbery rape felony mayhem c  and the king may be party to a common plea as to a quare hinder and the like  now as out of the old field must come the new corn so our old book do  excellent expound and express this matter as the law be hold at this day  therefore Glanville say to please other be criminal other civil where placitum  criminal be placitum coronae and placitum civil placitum common nam in this  statute and Bracton that live when this statute be make say to know quoth all  act sive to please ut ind act. equivocal haec be prima division quoth quaedam  are in remember quaedam in mask quaedam to mix item he who are in mask other  criminal  other citizens secundum quoth to climb down ex crime well shrinking  item of other major other minor other maxima secundum sin magnitude Fleta say  of in an unjust manner quaedam are criminal quaedam courtesy of quaedam  in the form of a sentence death to lead in quaedam yes minim Britton call they  plead de la coroner common plead and the court take his name of the common  plead to treat of the jurisdiction of this court do belong to another part of  the institute but a word or two of the antiquity of the court of common plead  which be the lock and the key of the commonlaw Glanville say placita in  that is above c as other who placita citizens c to use autem id fieri  in person justice domini Regisin banc to sit back c and in another place  in person justice in banc to sit Bracton in diverse place call the justice of  the court of common plead as Glanville do justice in banc to sit back so call  for that the return in the king bench be in person king wherever to be in  England as have be say because in ancient time it be as have be say removable  and follow the king court and therefore all writ retournable in person justice  our men  at Westminster be retournable before the judge of the common plea and  all write retournable in person we wherever tunc to be in England be  retournable into the king bench Britton speak of the court of common plea say  ouster Ceo voilloms and justice demurgent continualment a Westminster you  ailours you nous voudrous ordinary a pleader common plead c Fleta say to have  king senate to sew justice swine to sit back who record to have in haec who  in person the dawn fuer'placitata who power to have de omnibus plea act  realibus of to mix c it be manifest that this court begin not after the make  of this Act as some have think for in the next chapter and diverse other of  this very magnacarta mention be make de justice our men  de banc which all man  know to be the justice of the court of common plead common call the common  bench or the bench and Doct and Stud say that it be a court create by custom  the abbot of b claim conusans of plea in writ of assize c in the time of king  Etheldred and Edward the confessor and before that time time out of mind and  plead a charter of confirmation of king Henry the first to his predecessor and  a grant c so that the justice of the one bench or of the other shall not  intermeddle it appear by our book that the court of common plead be in the  reign of Henry the first that there be a court of common plead in year  h  which be before this Act Martinus de Pateshull be by letter patent constitute  chief justice of the court of common plead in the first year of h it be  resolve by all the judge in the exchequer Chamber that all the court videlicet  the king bench the common place the exchequer and the chancery be the king  court and have be time out of memory Issint and home ne poet scaver and be  plus ancient shall not follow our court diverse special case be out of this  statute the king may sue any action for any common plea in the king bench for  this general act do not extend to the king if any man be in custodian  mareschalli of the king bench any other may have a action of debt covenant or  the like personal action by bill in the king bench because he that be in  custodian mareschalli ought to have the privilege of that court and this Act  take not away the privilege any court because if he shall be use in any other  court he shall not in respect of his privilege answer there and so it be of  any officer or minister of that court the like law be of the court of chancery  and exchequer any action that be quare way arms  where the king be to have a  fine many be purchase out of the chancery retournable into the king bench as  ejection strong trns way arms  forcible entry and the like and a replevin may  be remove into the king bench because the king be to have a fine and so it be  in a assize bring in the county where the king bench be albeit original the  king bench be restrain by this Act to hold plea of any real action c yet by a  mean they may as if a writ in a real action be by judgement abate in the court  of common plead if this judgement in a Writ of error be reverse in the king  bench and the Writ adjudge good they shall proceed upon that Writ in the king  bench as the judge of the court of common plead shall have do which they do in  the default of other for necessity lest any party that have right shall be  without remedy or that there shall be a failer of justice and therefore  statute be always so to be expound that there shall be no failer of justice  but rather than that shall fall out that case by construction shall be except  out of the statute whether the statute be in the negative or affirmative in a  redisseisin or the like our court be word collective and not only extend to  the king bench but into the court of exchequer vide Artic super cart cap when  judgement be give before the sheriff and the tenant have nogoods c in that  county he may have a certiorar to remove the record into the king bench and  there have execution for that be not placitum see more hereof in the four part  of the institute cap of the court of exchequer chapter assize of novel seize  and of Mortdauncestor shall not be take but in the shire and after this manner  if we be out of this realm our chief justicer shall send our justicer through  every county once in the year which with the knight of the shire shall take  the say assize in those county and those thing that at the come of our foresay  justicer be send to take those assize in the county can be determine shall be  end by they in some other place in their circuit and those thing which for  difficulty of some article can be determine by they shall be refer to our  justice of the bench and there shall be end before the make of this statute  the writ of assize of novel seize and Mordanc be retournable either in person  king or into the court of common plea and to be take there and this appear by  Glanville in person I well in person justice meis but since this statute these  writ be retournable in person justice our men  and assisas come in part that  to come by force of these word mittent justice our men  per unumquemque  comitat nostrum semel in year  who come soldier the same an escort  to take in hand in comitat strike against assisas predict but in the shire  this tend great to the ease of the juror and for save of charge of the party  and of time so as they may follow their vocation and proper business and the  rather for that the assize of novel seize be crowded hasty remedy in those day  and so be the assize of Mordanc also it be a great benefit to the subject to  have justice administer onto he at home in his own country for a assize of  novel seize and assize of Mordanc see the first part of the institute and  where Bracton say to run under ei disseisito per a reviewing assisae novae  disseisinae many men  watch  to think out invention to retake possession  agreeableness how disseisitus injust to send away without judgment ut per  summariam getting to know  absq great law solemnity quasi per compendium pain  to set bounds see the costumier de Normand compose as have be say in h sect of  the assize of novel seize which be invent and frame in England as Bracton and  other have testfied must of necessity be transport into Normandy but where we  yield to Bracton that the assize of novel seize be so invent so he must yield  to we that it be a very ancient invention for Glanville make mention thereof  and of the assize of Mordaunc as have be say and by the mirror also the  antiquity of assize de novel desseisin do appear who say that this writ of  assize of novel seize be ordain in the time of ranulph de Glanville but the  case of assize before touch do prove that the writ of assize be of far great  antiquity for there it appear that in a assize of novel seize claim to have  Conusans of plea and writ of assize and other original writ out of the king  court by prescription time out of mind of man in the time of S Edmond and S  Edward the confessor king of this realm before the Conquest and show diverse  allowance thereof but true it be as the ancient author affirm that a new from  of writ of assize for the more speedy recovery of possession which werecalled  Festinaremedia be invent in England since the Conquest be call short catalog  de assisa novae disseisinae which writ so alter continue so until this day and  accord to the alteration be cite in the costumier cap fol b if a assize be  take in to appropriate county  and the tenant plead and after the assize be  discontinue by the non venum of the justice this Act extend to the assize but  not to a reattachment thereupon for that the assize be first arraign and  examine in the proper county neither do this Act extend to a Writ of attaint  bring upon the verdict of the recognitors of the assize and herewith agree  Britton who say et tout contain la grand Chie of franchise and ascuns assize  soient prize in county pur Ceo ne intent nul and certification attaint auter  foitz estre pledes c and Bracton say et si and hoc see to have common freedom  quoth assisae extra county  take hold non to withhold non sequitur quoth near  hoc to stay behind to swear falsely in come to take in hand other for to have  privilegi assisa other to swear falsely a assize be bring in the king bench  then be in the county of Suff as it may be as have be say of land lie in that  county the tenant plead in bar the pl reply and pray the assize the king bench  be remove to Westminster and there the pl pray the assize this statute be that  the Asisse shall not be take but in the county and now the king bench be in  another county and the original can go out of this place for when a record be  once in this court here it must remain wherefore by the advice of all the  judge the assize be award at large because nothing to say and a nisi prius  grant in the county of Suff that there may the assize be take a case worthy of  observation how by this exposition both the party suit be preserve and the  purvien of this statute observe yet in some case notwithstanding this negative  statute the asisse shall not have be take in his proper county and therefore  if a man be seize of a commote or lordship marcher in Wales hold of the king  in capite as for example of gowre the Writ of assize shall have be direct to  the sheriff of gloc within the realm of England and albeit the land of gowre  be out of the power of the sheriff of gloc be out of his county within the  dominion of Wales and this statute say that the assize shall not be take but  in his proper county yet be the assize take in the county of gloc and  judgement thereupon give and affirm in a Writ of error and the reason be  notable for the lord marcher though he have jura regalia yet can not he do  justice in his own case and if he shall not have remedy in this case by the  king writ out of the chancery in England he shall not have right and no remedy  by law give for the wrong do unto he which the law will not suffer and  therefore this case of necessity be by construction except out of the statute  and it be well say in a old book however much to hold before quoth communia  placita non to follow senate our men  non sequitur near hoc quin largely  placita one by one to follow owner king and the like in this negative statute  hereby it appear that I may observe it once for all that the best expositor of  this and all other statute be our book and use or experience more shall be say  hereof in the exposition of the statute of wonder of Mortdauncestor see the  first part of the institute sect costumier de norm cap fol if we be out of  this realm our chief justicer this capital crime  justitiarius when the king  be extra kingdom out of the realm be well describe by Ockham king extra  kingdom agent wine vessel to distribute sub nomin to guard justitiarii  testimony the same this be he that be constitute by letter patent when the  king be out of the kingdom to be custos sive gardianus royal power keeper of  the kingdom and locum to hold king and for his time be viceroy such as be  Edward duke of Cornwall e Lionel duke of Clarence e and the testae to all  original writ be testae Lionello son our men  charissimo custode England c  John duke of Bedford h Richard duke of Warwick e and many other before who as  keeper of the kingdom parliament have be hold and as have be say the testae of  original writ be under the name of the keeper which no officer can do when the  king be within the realm in h a great question arise whether if the king  lieutenant or keeper of his kingdom under his testae do summon a parliament  the king be beyond sea andinthemeane time the king return into England whether  the parliament so summon may proceed it be doubt that in present time majoris  to be remiss potestas those inferior in rank and therefore it be enact that  the parliament shall proceed and not be dissolve by the king return now that  this statute be to be intend of such a lieutenant or keeper of the kingdom it  be prove by this Act it self capital justitiarii our men  mittent justitiarios  our men  that be they shall name and send justice by authority under the great  seal under their own testae which none can do but the king himself if he be  present or his lieutenant or the keeper or guardian of his kingdom if he be as  this Act speak extra kingdom and this exposition be make ex word  soft fleshy body parts  right of way for cattle but then it be demand whether  this locum to hold king seu custos royal power be call capital crime   justitiarius before the make of this act and this very name you shall read in  Glanville who say to go by to know quoth secundum custom royal power nemo  holding to answer in senate domini Himself de to some place  book property his  without teaching domini king well he capital crime  justitiarii where  capital crime  justitiarius be take for custos royal power it be to be observe  that before the reign of king Edward the king chief justice be some time call  top justitiarius sometime praesiden justitiarius and sometime capital crime   justitiarius in year  primo e his chief justice be call capital crime   justitiarius and placita in person king to hold and so ever since and this  chief justice be create by Writ and all the rest of the justice of either  bench by letter patent in Glanville time and before the king justice be call  justiciae the return of writ be in person Justiciis meis so as the king  justice be ancient call the whole of the laws for that they ought not to be  only Justi in the concrete but self Justitia in the abstract since that time  as by this magnacarta in many place it appear they be call justitiarii a  Justitia the honourable manner of the creation of these justice you may read  in fortescue in some other place in their circuit this be take large and  beneficial for they may not only make adjournement before the same justice in  their circuit but also to Westminster or to sergeant inn or any other place  out of their circuit by the equity of this statute and accord as it have be  always use for constant allowance in many case do make law a the statute speak  only of a adjournment in assize of novel seize c and yet a certificate of a  assize be within this statute b maxim b say a thing advance to stretch out  many men  who beginning praevider non to be able c time find out that because  the justice of assize come not but once in the year and that any adjournment  can not have be make by this Act unless the juror have give a verdict for this  Act say near difficulty some a joint and not upon demurrer doubtful plea  estoppel c or for preservation of the king peace and no provision be make by  this Act if the ten in the assize of mordaunc have make a foreign vowcher or  plead a foreign plea all these be hold by the statute of wonder cap as shall  appear when we come thereunto chapter assize of darrein presentment shall be  always take before our justice of the bench and there shall be determine it  appear by Glanville that before this statute the Writ of darrein presentment  be returnable in person I well justice meis and the reason of this Act be for  expedition for doubt of the lap by the statute of wonder it be provide that  justice of nisi prius may give judgement in a assize of darrein presentment  and quare hinder chapter a freeman shall not be amerce for a small fault but  after the manner of the fault and for a great fault after the greatness  thereof save to he his contenement and a merchant likewise save to he his  merchandise and any other villain than we shall be likewise amerce save his  wainage if he fall into our mercy and none of the say amercement shall be  assess but by the oath of honest and lawful man of the vicinage earl and baron  shall not be amerce but by their peer and after the manner of their offence no  man of the church shall be amerce after the quantity of his spiritual benefice  but after his lie tenement and after the quantity of his offence a freeman a  free man have here a special understanding and be take for he who tenet freely  for a free holder as it be take in the venire fac where dvodecim book c man be  take for free holder and this appear by this Act which say salvo contenemento  his whereof more shall be say in this chapter the word of this Act be libre  a human being it extend as well to sole corporation as bishop c as to lie man  but not to corporation aggregate of many as major and commonalty and the like  for they can be comprehendedunder these word libre a human being c shall not  be amerce this Act extend to amerciament and not to fine impose by any court  of justice what amerciament be and whereof this word amerciament come see the  book of my report see also there that this statute be in some case of  amerciament to be intend of private man and not of amerciament of officer or  minister of justice so as libre a human being be not intend of officer or  minister of justice and how and in what case the afferment shall be you shall  also read there together also with the ancient author and many other authority  of law concern these matter it appear by Glanville that this Act be make in  affirmance of the come mon law as hereafter shall appear but yet the Writ de  moderatamisericordia be ground upon this statute for it recite the statute and  give remedy to the party that be excessive americied save to he his  contenement first for the word you shall read it in Glanville be autem pity  domini king how quis per juramentum of man de viceneto so far amerciandus be  ne quid de his that procures honor contenemento to send away and Bracton salvo  contenemento his Fleta contents of a work for the signification contenement  signify his countenance which he have together with and by reason of his free  hold and therefore be call contenement or continence and in this sense do the  statute of e and old nat short catalog use it where countenance be use for  contenement the armour of a soldier be his countenance the book of a scholar  his countenance and the like and a merchant likewise save to he his  merchandise for trade and traffic be the livelihood of a merchant and the life  of the commonwealth wherein the king and every subject have interest for the  merchant be the good bailiff of the realm to export and vent the native  commodity of the realm and to import and bring in the necessary commodity for  the defence and benefit of the realm and any other villain than we shall be in  likewise amerce save his wainage here Villanus be take for one that be a  bondman that has arisen by birth de sanguine or servus a villain be free to  sue and to be sue by and against all man save his lord save his wainage  Wainagium be the contenement or countenance of the Villen and come of the  Saxon word Wagna which signify a cart or wain wherewith he be to do villain  service as to carry the dung of the lord out of the scite of the manor unto  the lord land and cast it upon the same and the like and it be great reason to  save his wainage for otherwise the miserable creature be to carry it on his  back it be say here Wainagio his but yet the lord may take it at his pleasure  but hereby it appear that albeit the law of England be a law of mercy yet be  it a law which be now turn into a shadow for where by the wisdom of the law  these amerciament be institute to deter both demandant and plaintiff from  unjust suit and tenant and defendant from unjust defence which be the cause in  ancient time of few suit but now we have but a shadow of it to have indeed   fenatus decision say in picture to put up again tanquam sword in sheath  to put back earl and baron shall not be amerce but by their peer c although  this statute be in the negative yet long usage have prevail against it for the  amerciament of the nobility be reduce to a certainty videlicet a duke l a earl  l a bishop who have a barony l c in the mirror it be say that the amerciament  of a earl be a c l and of a baron a c mark it be say that a bishop shall be  amerce for a escape l a Bayler shall be amerce for a negligent escape of a  felon attaint l and of a felon indict only l if a noble man and a common  person join in a action and become nonsuit they shall be several amerce  videlicet the noble man at c S and the common person accord to the statute  therefore when a noble man be plaintiff it be policy rather to discontinue the  action then to be nonsuit by their peer by his peer that be by his equal the  general division of person by the law of England be either one that be noble  and in respect of his nobility of the lord house of parliament or one of the  Commons of the realm and in respect thereof of the house of Commons in  parliament and as there be diverse degree of nobility as duke marquis earl  viscount and baron and yet all of they be comprehend within this word pares so  of the Commons of the realm there be knight esquire gentleman citizen yeoman  and burgess of several degree and yet all of they of the Commons of the realm  and as every of the noble be one a Peer to another though he be of a several  degree so be it of the Commons and as it have be say of man so do it hold of  noble woman either by birth or by marriage but see hereof cap Bracton say  comites yes well baron non are amerciandi nisi per pares swine secundum manner  fault hoc per baron de Scaccario well in person Self king no one Church rites   mask amercietur secundum magnitude kindness Himself Church rites  say secundum  Laicum tenent suum man of the church for ecclesiastical person and their  diversity and degree see the first part of the institute where sup benefice  benefice kindness be a large word and be take for any ecclesiastical promotion  or spiritual live whatsoever here appear a privilege of the church that if a  ecclesiastical person be amerce though amerciament belong to the king yet he  shall not be amerce in respect of his ecclesiastical promotion or benefice but  in respect of his lie fee and accord to the quantity of his fault which be to  be afferred and Bracton set down the oath of the afferers of amerciament and  hoc with reliance on God faciend affidabunt amerciatores quoth no one gravabu  per odium nec some deferent near love quoth celabu she who to hear