coke a the case OF the abbot OF stratum MERCELLA mich Elizabeth see duke of  Northumberland v Haughton lr ex mayor of Saltash v goodman c p d App Cas duke  of Newcastle v Worksop u d Council Ch attorneygeneral v trustee of the British  museum Ch in quo warranto for use without warrant among other the liberty and  franchise of have waif stray good of felon etcetera in l as to waif and  estrays the defendant claim they by prescription and as to the good of felon  he plead that I late abbot of Strata Mercella lawful have and enjoy the  aforesaid good and chattel of felon within l and dispose of they to his own  proper use till h and plead the stat h by which all monastery under the yearly  value of be give to the king in as large and ample manner as the abbot c have  they and that the say abbey of Strata Mercella and its possession be under the  yearly value of and plead also the stat h c by which all liberty privilege  franchise c which the late owner of the say abbey c have use and exercise  lawful c within month before the h shall be revive and actual in the king his  heir and successor by force whereof king h be seize of the say franchise in  his demesne as of fee in right of his crown and be also seize of the manor of  t in l c late parcel of the possession of the abbey of Strata Mercella grant  the say manor to d in fee with general word videlicet tot ankle of such size  hujusmodi eaden similar things freedom franchesias privileg jurisdiction c  quot qualia tantus c queen speech recently abbess c to have to hold sive be  glad to be infra c and that d feoff the defendant in fee but without say by  deed and then conclude his plea et eastern warranto proclaim liberate c et  privileg predicta tanquam ad manor predicturn spectant et pertinent upon  demurrer to this plea as to the good and chattel of felon judgement be give  for the crown for the good and chattel of felon lie not in prescription and  can pass without deed when the king grant any privilege liberty franchise c  which be privilege liberty or franchise in his own hand jure coron within such  possession if they coke report b er p come again to the king he have they  again in jure coron and if wreck or good waifed estrays c be appendant before  to possession the appendance be extinct and the king be seize of they in jure  coron but when a privilege liberty franchise or jurisdiction be not in be  before but be new create by the king such privilege c be not extinct by the  accession of they to the crown nor the appendance of they sever from the  possession if the king grant to S and his heir catalla felon within his manor  of d and afterward I S grant to the king his heir and successor the manor with  the say franchise and then the king grant to l n and his heir the say manor  and further grant to he and his heir within the say manor tot ankle of such  size c privileg c et quot qualia c queen the say I S have in quo warranto I n  ought not to plead general but in special the first charter make of the say  good of felon and the regrant c query whether the aver general that the abbot  lawful have and enjoy c shall be intend of a have and enjoy in feesimple and  that a particular estate shall not be presume if not special show query  whether also the defendant have pursue in his plea the word of the statute h  query whether the conclusion et eastern warranto proclaim freedom c tanquam ac  manor c spectan et pertinent c be a sufficient conclusion if the king grant  the manor of d to I S and his heir and within the same manor to have waif  estrays good et catalla felon c speech manor spectan et reach though these  word do not refer to felon good or franchise which lie in charter and can be  appendant or appurtenant to a manor yet they shall pass note what ancient  franchise ought to have allowance and what not how franchise which lie in  point of charter may be claim in quo warranto without show or plead the  charter and where the charter must be plead where franchise be claim by the  general word tot ankle c privileg c as such a one have c what estate he to who  the reference be make ought to have in the franchise of the manner of trial  allow by the commonlaw SC more Vid the entry   Ent nu roll skin in quo  warranto against Owen Vaughan for use these liberty and franchise among other  without warrant that be to say to have waif stray good of felon c in  Llanihangel in the county of Montgomery as to waif and stray the defendant  claim they by prescription and as to good of felon he plead quod johan  recently abbess de Strata Marcelia to be for sale a palm a to have be glad to  be infra Llanihangel pace good catalla felon ad use suum proprium to place  here and there usque diem fever year h and plead the statute of h by which all  monastery under the yearly value of be give to the king in as large and ample  manner as the abbot c then have or ought to have they and that the say abbey  of Strata Mercella and the possession thereof be under the yearly value of and  plead also the statute of l h cap by which it be enact that all liberty  privilege and franchise and temporal jurisdiction which the late owner of the  say abbey c have use and exercise lawful c within three month before the say  Act of h shall by the say Act of be revive and shall be real and actual in the  king his heir and successor by force whereof king h be seize of the say  franchise S to have felon good within Llanihangel aforesaid in his demesne as  of fee in the right of his crown and so seize and be also seize of the coke b  manor of Tallerthege in Llanihangel c in the say county late parcel of the  possession of the say abbey of Strata Mercella grant by his letter patent year  h the say manor to sir Arthur darcy Knt in fee with general word that be to  say b   a b tot ankle of such size hujusmodi eaden similar things freedom  franchesias privileg jurisdic coke report a er p tiones c quot qualia tantus  queen speech recently abbess c to have to hold sive be glad to be infra c by  force whereof the say Arthur darcy be seize as well of the manor aforesaid as  of the liberty c aforesaid in fee and so seize of the say manor feoff the  defendant in fee for although there be diverse mean conveyance this be the  case in substance and then he make a conclusion for all his plea videlicet et  eastern warranto proclaim freedom franchesias et privilegi prd tanquam ad  manor prd spectan pertinent and upon this plea as to the good and chattel of  felon the queen counsel demurrer in law and it be argue on the part of the  queen that the defendant claim to have the good and chattel of felon be  insufficient for two reason because be do not show that the abbot have the  good of c Inst   light a Stamf Prrog a e b h b roll Br Coron h b a h b  Fitzherbert prescription h a Inst kelw b postea b Br estray c felon by charter  within Llanihangel for by prescription or any usage he can not have they for  although he shall not be compel to show the charter in court or to plead a  exemplification of it because the charter be make to a stranger yet he ought  to have plead that the abbot have the say franchise by charter that the  substance of the plea want trial for the effect of his plea be quod pace  recently abbess to be for sale to have et be glad to be infra c good catalla  felon c and these two point be often argue at the bar in diverse several term  and the effect of the argument on the queen part as to the first be that the  abbot can not have felon good by prescription or any usage but by charter quod  to be concession per totan curian vide the authority and the reason and cause  thereof in Foxleys case in the five part of my report f b a whence it be infer  that the defendant ought to have plead in certain that such king grant to some  of the predecessor of the say abbot c or to the say abbot himself to have  felon good within the town of Llanihangel c and not quod prd abbess to have et  be glad to be etcetera and especial in a quo warranto in which the defendant  ought to show a full and perfect title to himself as to the second it be  object that the plea be insufficient because every plea ought to be a postea b  a a triable either by the country if it contain matter of fact or by the  justice if it contain matter in law or by the record itself if it consist coke  a of matter of record pi Com a b but this plea be not triable by the country  for two reason because the substance of the issue consist of matter of record  for without matter of record the abbot can not have they which can be try by  the country but the law attribute so much honour and credit to they that they  shall be try only by b   a b b themselves and not by the country vide   light  b a post a h pi Com Elizabeth and hind case in the four part of my report fol  matter in law be not triable by the country no more than matter in fact by the  justice because as c   light a b a b Bulst side blow b roll Rep before a   a    b c ad qustionem fact non respondent judge ita ad qustionem law non respondent  a swearer a Vid Mr hargrave note   light b a but in this case the defendant  have comprehend in his plea quod pace recently abbess to be for sale to have c  which tend to matter in law which be not enquirable by the country and yet the  defendant have not show his case in so certain and special a manner that the  court can judge whether the abbot by the law have felon good or not and  therefore it be agree in d Plowd b Br condition hob Leon d e b the Lord lisle  case a man be bind in a bind and the condition be that if he come to b such a  day and there show the obligee or his counsel a sufficient discharge of a  annuity of S which he claim out of two house c that then c and in debt on this  bind the defendant plead that he come to b at the day aforesaid and there  offer to show the plaintiff counsel a sufficient discharge thereof and they  refuse upon which the plaintiff demurrer in law and after long coke report b  er p argument it be adjudge that the plea be insufficient for his plea ought  to have allege what manner of discharge he offer to show videlicet a release  or unity of possession or other matter of discharge upon which the court may  judge if it be sufficient or not b in a action upon a promise to pay so much  in consideration of be release from such a arrest it be not necessary to show  how the defendant be release king v rob cro Elizabeth Vid Bac ab coy king Com  dig plead e V b for the country shall not inquire of it but it ought to be  adjudge by the court which the judge can do if the special matter be not show  to they but if the issue be take that the obligor come not there that shall be  try by the country for that be a matter in fact of which the court have not  conusance and all this appear in the say book vide pi Com e blow b e any  townsend case f blow b f b in the lady hale case c and as to the objection  which may be make that it will be mischievous to the subject to compel he to  show or to plead the charter make to abbot prior c as well for the g   a   b  hob Bridgm postea b g infinite search for they as for the impossibility to get  they many of they be lose or deface or possess by one only to that it be  answer that there be not any such mischief either for the uncertainty or for  the impossibility for although the charter be lose yet they coke b be enrol of  record of which every one may have a exemplification or if such enrolment can  be find yet allowance in Eyre as by the law ought to be be of record of all  such franchise by which it appear by force of these charter such franchise be  allow against which it be argue on the defendant part that the plea be  sufficient upon which judgement ought to be give for the defendant and that  the whole consideration of this case chief consist upon the true construction  of the say statute of a h c a h and therefore the final intention of the Act  and the purview thereof be to be consider the intention of the Act be to  advance these possession as well in valuation as estimation to revive actual  and real such privilege liberty franchise and temporal jurisdiction which the  late owner of the abbey have c then it be to be consider what privilege  liberty franchise and jurisdiction be extinct in the crown by the accession of  the say possession to it and as to that it be to be know that when the king  grant any privilege liberty franchise c which be privilege liberty or  franchise in his own hand as parcel of the flower of his crown as b Mod Rep Cr  Elizabeth more Anders palm argument in quo warranto   light b Plowd b good  catalla felon fugitivor utlagatorum c good catalla waviata extrahur deodanda  wreccum maris c within such possession there if they come again to the king  they be merge in the crown and he have they again in jure coron and if the  wreck or good waifed estrays c be appendant before to possession now the  appendance be extinct and the king be seize of they in jure coron c Acc king v  capper price Com dig Franche g c but c argument in quo warranto c when a  privilege liberty franchise or jurisdiction be at the beginning erect and  create by the king and be not any such flower before in the garland of the  crown there by the accession of they again to the crown they be not extinct  nor the appendance of they sever from the possession as if a d Anders more  palm d fair market hundred leet park warren et like be appendants to manor or  in gross and afterward they come back to the king they remain a they be before  in be not merge in the crown for they be at first create and new erect by the  king and be not in be before and time and usage have make they appendant which  difference be agree per totan curian and this appear in our book as for the  first part of the difference e   b e Edward coke report a er p a John Darcys  case the case of forfeiture of ware and Henry dyer f die pl f Edward ass p Ph  mark dyer g die pl g and for the second part of the difference Henry a and  Edward b the case of the market Edward the case of the coke a hundred h the  case of the earldom all which privilege liberty franchise and spiritual  jurisdiction of the first quality which be the ancient revenue and flower of  the crown be merge in the crown be now by this Act a Cr James a revive again  actual and real in the king his heir and successor for as to those of the  latter part of the difference there needs no Act of parliament to revive they  for they be not extinct so that the patentee in such case of felon good shall  have they as the same franchise which be in be in the crown and therefore it  be observe that the say general word usual in patent tot ankle etcetera eaden  et similar things quot qualia tantus et queen etcetera speech recently abbas  to have etcetera have several and distinct signification for by force of this  word eaden the franchise themselves as hereditament in be in the crown shall  pass and by force of b Jones b W et similar things etcetera the patentee shall  have the like d Vid post note g p a d to they the abbot bad for those  themselves the king can grant because they be merge in the crown and it be  well agree that if the king by his letter patent grant to I S and his heir  catalla felon within his manor of d and afterward I S grant to the king his  heir and successor the manor with the say franchise and afterward the king by  his letter patent grant to I n and his heir the say manor and far grant to he  and his heir within the say manor tot ankle of such size eaden et similar  things privileg freedom et franchesias quot qualia tantus et queen the say I S  have in that case in a quo warranto I n ought not to plead in such general  manner as the defendant now have do but ought to plead in c godb see fol b W  Jones c special the first charter make of the say felon good and the regrant c  quod to be concession per totan curian but it be strong urge by the defendant  counsel that by d   b Cr car hob bridge d force of the say Act of h the  defendant may aver quod Johannes recently abbess de Strata Mercella to be for  sale to have et be glad to be infra Llanihangel good et catalla felon for  therein the defendant in his plea have pursue the word of the say Act which be  that all privilege c which the say owner of the say abbey c have use and  exercise lawful within three month before the say Act of e h c e h shall be by  force of the say Act of h f Cr James f revive c for the defendant have plead  that the say late abbot c lawful have use and exercise to have the good and  chattel of felon till the say that day of February year h and this be  cornpared to diverse other statute as to Vernon case in the four part of my  report f a where the statute of h cap which speak for the jointure of the wife  give averment that coke b a estate upon another express condition may be aver  for the jointure of the wife and so upon the statute of usury g   a Elizabeth  c g Elizabeth and upon the statute of h h c W Jones h h upon bind take by  sheriff and the like and where it be object that this issue be not triable it  be answer that it shall be try by the country for to be for sale be conclude  within the other word S to have be glad to be for if to be for sale have be  omit in the sense of the statute it have be imply as the statute of Gloucester  c which say whereof no fine be a light sect   light b a levy in the king court  be as much as to say whereof no fine be lawful levy in the king court so h  upon the statute of W c si bishop church coke report a er p To bring together  be as much as to say si bishop church b   light b b fixed by law modus To  bring together and in the statute of W de gift conditional the word ad dona  prius shape non to stretch out be to be intend of gift c blow b c lawful and  in due manner make by the donee before the statute pi Com in the Lord Barkleys  case and therewith agree h formedon d   light b postea a blow b d and the  statute of e Inst Stanf cor b a b   b e I e c which enact that all manner of  indictment take in turn or leet shall be deliver to the justice of peace at  the next session c and that they shall proceed upon they extend only by  construction of law to proceed upon lawful and sufficient indictment and make  no insufficient f   light b raze Sher Br presentm in court Br parliament  Fitzherbert tourn de viscount   b Stanf cor a b f indictment good as it be  hold in e a b and that be the fundamental and directory reason of the  commonlaw for the commonlaw say that no conspiracy lie when the party be  indict but although he be indict if the indictment be not sufficient in law  the party shall not have his writ of g f n b d Bulst g conspiracy for when the  commonlaw speak general it be to be intend in a good and lawful sense so it be  conclude that if this word to be for sale have not be add it have be imply and  by consequence the addition of it shall not make a alteration of the trial for  h Mod Rep hob   a light Rep hard roll Rep roll Rep palm   b   a   b a cor a    light a a Inst saun Bulstr latch h expulsion out the dawn queen tacit sew up  nothing operator and because the defendant ought to pursue the statute in his  plea and not to omit this word to be for sale and that if it have be omit in  the statute it have be imply for this reason it be conclude that this issue  shall be triable by the country and it be say that the statute of h have great  reason to direct such summary course of averment for the impossibility and I  Ant a   a   b hob Bridgm I infiniteness of search many of the say religious  house be find before time of memory and their charter of franchise also make  before time of memory and some by general obscure ambiguous and obsolete word  and although such franchise have be allow in eire yet the allowance in eire of  itself only be not pleadable and perhaps such allowance be of so great  antiquity have be by casualty or length of time coke a quod be greedy a thing  deface or lose and for these reason and for avoid of uncertainty of question  and suit and for raise the value of these possession the statute of king h c  king h have alter the manner of plead which the commonlaw will have require  and upon this case great doubt be conceive by Popham chief justice gawdy and  the court and it depend in argument and advisement as a case of great  consequence till hill Elizabeth in which term three other matter be move  against the defendant claim because it do not appear by the defendant claim  what estate the say abbot have in the say franchise but general l Cr Elizabeth  l quod to be for sale to have be glad to be c and perhaps he have they but by  lease for year or for life c and the statute of h do not give the king more  than the abbot bad and the statute of h do not revive more than be extinct and  by the letter patent of h the defendant have plead a grant of the say  franchise as franchise revive by the Act and in be at the time of the grant  the second objection be that when the defendant have claim good catalla  waviata extrahuras by prescription appendant to the say manor good catalla  felon by force of the say Act of h and possession of the say abbot the  defendant conclude his claim to all et eastern warranto proclaim freedom  franchesias et privilegi prd tanquam ad manor prd spectant et pertinent  whereas good et catalla felon without question can be coke report b er p  appendant or appurtenant to the say manor because they lie not in prescription  and the claim without the conclusion of eastern warranto have be insufficient  and it be all one to have no conclusion and a insufficient conclusion vide h a  b h h h last it be object that the defendant in his claim have convey the say  manor to himself by feoff which be plead without deed and have not convey to  himself any title to the say franchise which can pass without deed and then  without question judgement ought to be give against he for he have no title  and the franchise if any be remain with the feoff as to the first of these  three objection it be answer that a general have and enjoy of they shall be  intend of a have and enjoy in feesimple and that a particular estate or  interest shall not be presume if it be not special show and therefore prim  fancy it shall be intend a feesimple that the defendant in this case have  pursue the word of the statute but it be grant that the plead have be clear if  the defendant have allege that the say abbot be seize of they in fee till the  say Act of h and in the end take the averment accord to the statute but the  court do not give judgement upon that point as to the d the court give no  resolution for some coke b say it shall be take good reddendo one one and some  hold the contrary but it be resolve per totan curian that if the a palm roll a  queen grant the manor of d to I S and his heir and within the same man to have  waif estrays good et catalla felon etcetera speech manor spectan et reach that  in a grant these word speech in manor spectan et reach do not refer to felon  good or other franchise which lie in point of charter which can by no usage  nor time be appendant or appurtenant to a manor but they shall pass although  they be never demise or use with the manor but the doubt be conceive in the  case at bar when it be by way of plead vide justice b   b a b windham case in  the five part of my report but as to the last objection it be resolve per  totan curian without any question that forasmuch as the defendant have not  convey to himself any title to the say felon good c that for they judgement  shall be give against he and so it be notam reader upon the argument of this  case four thing be worthy consideration what ancient franchise ought to have  allowance and what not how one in a quo warranto may claim franchise which lie  in point of charter without show or plead a charter and where he shall be  compel to plead a charter when one claim such franchise by the say general  word de tot ankle eaden et similar things privileg etcetera as such a one have  c what estate he to who the reference be make ought to have in the franchise  something be necessary to be say of the manner of trial allow by the commonlaw  for beside the three mention in the say argument there be many other as to the  first it be to be know that every franchise liberty or privilege either lie in  point of charter and can be claim by prescription as good et catalla a   light  b I l raym Inst   light a roll Stanf Prrog e b h b Br cor Br estray h b h b  Fitzherbert Presc h a Inst kelw b   b a h a Ant b a felon etcetera or in  prescription and usage in pais without the help of any charter as wreck waif  estrays c of franchise which lie in point of charter either they be before  time of memory or within time of memory know from the time of r light b light  sect f a b   light b a b king h a h a b e e Elizabeth c die pl c dyer if they  be grant before time of memory as many of the charter and grant to abbot prior  and other such religious corporation be they be grant either by special word  as they seldom or never be or by general old obscure ambiguous and obsolete  word as in d Br conusance Br patent d ass king William the con coke report a  er p queror grant to the abbot of coke a battle quod to have e Br conusance Br  patent e curian svan royal ass the conqueror grant to the abbot of Glassenbury  all men regian f Br well known h b f power h king h find the house of saint  Bartholomew and grant that they shall be as free in their church as the king  in his g h b g crown h b a in ancient time the king grant h Br patent h in all  respects jura svan regalia the king Canute and Edward the confessor grant to  the abbot of bury quod no one layman mask or minister ring in to some place  see intromitta in castle consecrated edmundi out hominib in eastern manentib  nisi abhas et convent et the dawn minister and many other which I have see and  be such I roll e b e b I grant of franchise special or general certain or  obscure c yet forasmuch as they be make before time of memory and so of  themselves they be not any record pleadable they ought to have the aid and  support of some other matter of record within time of memory as king Cr James  Jones Inst Bulst see e a king allowance before justice in eire or before the  justice of the king bench which be more than a eire either in case before the  justice of the common plea or before the baron of the exchequer or by force of  a confirmation by charter of record of some king within time of memory and  shall not be now allow but for such part of the grant which so have be l post  a l allow and confirm although it be all in one and the same patent e the true  way of plead where the charter be before time of memory be to allege a  immemorial usage and then also to produce the allowance in b r or in eire per  holt CJ foster v Milton salk SC I l raym Vid buller n p and will and m c but a  private grant though make before time of legal memory may be plead though it  have not be allow James v Trollop Mod SC pollex show skin e but usage only  which be but matter in fact will not support a record before time of memory in  such case and therewith agree ass ass ass h e h h h a h oh h h Keilway vide e  e h h ass and when such ancient grant be general obscure or ambiguous it shall  not be now a   light b b h b a Br pat palm Cr Elizabeth latch Inst Davis b e b  per choke a interpret as a charter make at this day but it shall be construe  as the law be take at the time when such ancient charter be make and accord to  the ancient allowance on record f if the language in ancient charter be become  obscure from its antipathy or the construction be doubtful the consent and  immemorial usage under the instrument though it can never be admit to control  or contradict the express provision of the instrument may be resort to for the  purpose of explanation shepherd v Gosnold Vaugh Com dig parols a king v Varlo  Cowp gape v Handley TR n king v Bellringer TR king v Osbourne east bailiff of  Tewkesbury v Bricknell taunt king v mayor of saint Alban east king v mayor of  StratforduponAvon east king v mayor of Chester m S mayor of London v long I  camp I have v Tilsed Brod bing SC b more and however general the word of  ancient grant may be they be to be construe by evidence of the manner in which  the thing have be always possess and use king v Osbourne east wield v Hornby  east attorneygeneral v Parker atk attorneygeneral v Forster Ves and such  evidence be equal admissible to explain private deed Withnell v Gartham TR  stammer v Dixon east Wadley v Bayliss taunt and modern usage of forty or fifty  year duration be evidence not only for that period but evidence from which it  may be presume that the same course be pursue in early time if nothing be show  to the contrary per Richardson I I have v Tilsed ub sum in Phillips law of Ev  vol I p that edition f h h b a h h coke report b er p h a h h e e e Conusans  ass ass but if the charter be grant within time of memory then they be  pleadable without show any allowance or confirmation as by the book aforesaid  appear of franchise which may be claim by prescription as wreck l raym waif  estray c as they may be original claim by usage which be a matter in pais so  usage may support they without the aid of any record either of creation  allowance or confirmation and therewith agree the book aforesaid as to the d  it be true that it be say in e e and common in other book that the b Cr  Elizabeth b quo warranto for franchise be in the nature of the king writ of  right in such case and that the defendant in it ought to make a sufficient  title against the king and let we see how this title shall be make coke b and  for the better understanding of the reason of it and of the book which have  treat thereof it must be know that it be enact by a statute make e call to  cause to stand de c Inst c quo warranto novum concern the writ which be call  quo warranto our lord the king have establish that all those who claim to have  quiet possession of any franchise before the time of king Richard without  interruption and can show the same by a lawful inquest shall well enjoy their  possession and in case that such possession be demand for cause reasonable our  lord the king shall confirm it by title and those that have old charter of  franchise shall have the same charter adjudge accord to the tenor and form of  they and those that have lose their liberty since easter last pass by the  aforesaid writ accord to the course of plead in the same writ heretofore use  shall have restitution of their franchise lose and from henceforth they shall  have accord to the nature of this present constitution in e the king bring a  quo warranto against Rog Mortimer and Johan his wife before justice in eire in  the county of Middlesex to show by what warrant they claim to have conusance  of every manner of plea as well of the crown as other contra will our men in  their manor of t where Roger de Mortimer and Johan say that Walter de Lacy  ancestor of the say Johan be seize of the say manor of t and of other land  afore time of memory that be to say in the time of r and have the say  franchise to have conusance of plead in the say manor long time before r from  which Walter the inheritance descend to many daughter and convey part after  partition make to the wife of the defendant in allowance of other land c and  the defendant pray in aid of the other coparceners and the justice deny the  aid and because the defendant hold themselves to the aid and will not say  other thing the justice in eire forejudged they of the say franchise and  thereupon the defendant bring a writ of error out of the chancery returnable  in the king bench and the first judgement be reverse for two reason which sir  Jeffrey Scrope open declare that the justice oust the defendant of aid where  the aid be grantable that they have forejudged the defendant of the franchise  I e to forfeit the franchise for ever for in some case the franchise ought to  be seize into the king hand and in some case seize as in his right till he  have make fine and in some case shall be forejudged but forejudger hold for  ever and therefore there Scrope say we see by this coke a record that the  justice oust the defendant of the aid where by law the aid be grantable and  further award that they shall be forejudged of the franchise because they will  not otherwise plead but hold themselves to the aid where for want of plead the  franchise ought not to be forejudged but seize although the defendant answer  have not be sufficient therefore the court award that the judgement be as  erroneous c and for null hold c and sue you to have the franchise but notam  reader that it be to be understand and so it may be collect by the book that  the say franchise have be allow before justice in eire and therewith agree h a  Inst a prescription if a man have allowance in eire of franchise which lie in  point of charter as to have conusance of plead c that he may prescribe coke  report b er p by the help of such allowance of record in such franchise and so  as it seem be the say statute of e well expound that be to say that the party  who have such allowance which be such possession as the statute intend may  prescribe in such franchise which lie in point of charter and it stand upon  great reason for the charter may be make before the Conquest and of such  antiquity that the charter itself and every enrolment of it be utter perish  and consume and therewith agree h a Inst roll Yelv before a a Keilway where  above and as to the objection which be make that in the case at bar no trial  can be by the country whether the abbot have felon good vide e b a John bring  a replevin of sheep against the abbot of Peterborough and diverse other the  abbot avow the take by reason that he be lord of the hundred of f within which  hundred he have franchise to have all the chattel of felon and fugitive within  the same hundred to take they by himself or his officer and that Robert Le  porter steal the say sheep be the good of the say John the plaintiff and will  have drive the sheep aforesaid through the town of c within the same hundred  whereupon the say abbot and the other will have arrest the say Robert as a  felon and thereupon Robert flee to the church of Libbone which be within the  same hundred and there before a coroner of the say county be confess the say  felony and thereupon be make abjuration so the abbot be seize of the say sheep  as of his own good by his say franchise to which avowry exception be take  because he claim catalla felon fugitivor and have not show title of right coke  b as to say that be and his predecessor have be seize from all time that be to  say with allowance ut above or by the king charter to which it be answer  forasmuch as he have say that he have such franchise be need not to show the  plaintiff by what title he claim to have such franchise but when the king  bring his b palm Cr James b quo warranto against he then must he show his  title and the plaintiff be award to answer over ex quo sequitur that the  general avowry that the abbot have such franchise that be to say to have felon  good within the say hundred be award good that it be issuable and triable by  the country whether the abbot have such franchise or not for if the matter of  the avowry be not issuable and tryable the avowry can not have be award to be  good as to the boundary hill Elizabeth Edward c post a roll Rep palm hard vent  Brownl h PC c Ameredith Esq put in his claim into the exchequer for issue good  and chattel of felon c within his manor of Stokenham and of the hundred of  Colridge within the county of Devon which fall in year Elizabeth and the case  be such king h be seize in fee of the say manor and hundred and inter alian by  his letter patent Feb h S grant to queen Katherine his wife the say manor and  hundred inter alian for her life and by other letter patent Feb grant that the  queen shall have for term of her life within the say manor and hundred good  catalla felon fugitivor utlagatorum c fine amercement issue c as well of royal  officer as of other c annum diem empty c to be discharge of purveyance for the  king his heir and successor and of carriage to be exempt from the jurisdiction  of the admiral and to have admiral jurisdiction and to nominate coroner and  escheator c and afterward queen Katherine die and convey the say manor and  hundred by mean descent to queen mary who June year by her letter patent grant  the say manor and hundred to Francis earl of d Bulst d Huntington and  Katherine his wife late parcel of the possession of Margaret countess of  Salisbury and afterward assign to queen Katherine for her jointure and that  they within the say manor and hundred shall have a Bulst a tot ankle eaden et  hujusmodi freedom privileg franchesias jurisdiction c quot qualia tantus queen  predict Countess Sarum ant some well in some way prmissa or aliquan ind  parcellam ante tunc coke a to have posssidentes or seisiti ind to step out  unquan to have to hold or to rejoice to be c infra prmissa c ration well  prtextu alicuj cart gift seu permission seu aliquar a letter to stand open c  coke report b er p to have and to hold to they in tail with diverse remainder  in tail the remainder over in fee with a general non to stand before and  convey the say manor and hundred with all liberty privilege franchise c by  mean conveyance to the say Edward Ameredith and his heir and upon all this  matter the question be if Ameredith shall have all the say franchise c which  be grant as aforesaid to queen Katherine and in that case two question be move  one because the reference in the letter patent of queen mary be general know  quot qualia tantus queen some seu in some way c and then the grant of the  liberty be general b more b lot tali c without express any in certain and the  reference be also general it be object it be too uncertain in the king case  but the case in e c e avowry cart c avowry be well agree for there although  the grant of the liberty be general yet the reference be certain but it be  resolve by periam chief baron totan curian that although the grant and  reference d blow b Cr Elizabeth post a a hob raym   b a roll d be general yet  it ought to be apply to a certain particular as in that case to the charter  make to queen Katherine et e   b   a   light b a a lane hetl e that which is  fixed be quod that which is fixed To give back to be able and they agree that  such general grant have be often allow in the exchequer the second doubt be  that forasmuch as queen mary have grant a inheritance in the franchise c such  general f   a f grant with such general reference shall not be apply to a  grant which the king make for life only and that be the great doubt for it be  object that if queen mary have refer it to the charter make to queen Katherine  yet without a special grant that they shall have such liberty in tail c which  queen Katherine have for life such liberty which she only have for life shall  not pass to they in tail for the queen grant shall be take to a common intent  but here the case be strong for the charter of queen mary do not refer to the  charter of queen Katherine but only by general word prout some seu in some way  some c but it be resolve that when a charter have Q if a general mischief may  not follow on this ground general g   a raym above in c g reference to other  charter it be as much in law as if all the charter have be recite for they be  of record g Vid king v bishop of Rochester and another Mod Restons case W  Jones sir Edmund sawyer case W Jones sir Charles howard case W Jones it be now  settle contrary to what be here lie down by coke that the crown be not bind by  general word or word of reference but that in all case of royal grant express  word be necessary to confer or revive a franchise king v capper price  attorneygeneral v marquis of Downshire price and Vid Blankley v winstanley TR  g and although queen Katherine coke b have the manor and hundred but for life  yet it be within the express word of the reference videlicet some seu in some  way prmissa ante tunc to have to have and hold or seisiti ind to step out  unquan to have to hold seu to rejoice to be so that queen Katherine be within  this word seisiti for she be seize of the manor c and I acquaint Popham chief  justice with this resolution and he agree with it and it be well observe that  the reference do not extend to the quantity of the estate but to the quality  of the franchise whereof they to who the reference be make be seize be they  seize for life in tail or in fee as to the that point there be a Ant b a bal a  diverse manner of trial allow by the commonlaw beside the say three mention in  the argument of this case that be to say of matter in fact by juror of matter  in law by the justice and of matter of record by the record itself as in  treason the trial of one who be a b more Stamf cor   light b a Inst  Fitzherbert cor Br cor Br trial b n c Br juror h a h b peer of the realm coke  report a er p I e a lord of the parliament shall be upon a indictment of  treason or felony try by his peer without any oath but upon their honour and  allegiance but in a appeal at the suit of a subject they shall be try per  Probus regales man being under oath c e b c c   b   b c custom and usage of  every court shall be try by the judge of the same court if they be plead in  the same court e b in d e Fitzherbert trial roll Inst die pl more and e b Br  trial Doct pl raze Ent a Fitzherbert trial d dower or e Br trial Br appeal  roll Rep e appeal bring of the death of her husband or in assize bring by a  woman who be the wife of b if the tenant or defendant plead that the husband  be live the trial shall not be by jury but by the justice upon proof make  before they for great expedition e e ass p h a h diversity of court ass vide  ass p ass p in a writ of error to reverse a fine for nonage or in a hearing  complaint to reverse a recognizance or statute for nonage there the age shall  be try by the f Bulst roll Rep roll   light b f inspection of the justice and  not by the country for that which judge of record do as judge shall not be try  by jury if a infant appear by g Cr James Poph pal roll Rep Yelv side g  attorney it be error h Vid note b Beechers case Rep b h but it shall be try by  jury and not by the justice for the make of the warrant of attorney be the act  of the party without examination of the justice and yet the appearance by  attorney be record by the court and therefore if the plaintiff make attorney  in court and the defendant plead that the plaintiff be dead and one appear and  say he be the plaintiff which be deny by the other party the justice shall  adjudge if he who now appear be the same person who before make a attorney and  therewith agree h if the tenant in a real action vouch coke a a as heir within  age or if the tenant for life be implead and be pray in aid of a in reversion  within age and pray that the parole may demurrer c in both case if the  demandant reply that he be of full age it shall not be try by the country for  the great delay to the demandant but a writ shall be award to the sheriff  command he quod we fa tali die prd a ut per aspect substantial object Himself  to agree to be able prfat justice our men si prd a sit full tat or not c vide  e account a Bulst roll a e account c b roll Br trial Br App e b Fitzherbert  cor blow a b maihem may be try by inspection of the court ass h b e if  question be make if these be the summoner or viewer which appear it shall be  try by the examination of the justice h a earl c     a calvin case     light b  style Fitzherbert challenge Br challenge ass more Inst roll postea a c or not  earl baron or not baron shall not be try by jury nor by the justice but by the  king writ as appear in the countess of Rutland case in the five six part of my  report h a c e d e b d in a plea of alien bear the league between the king and  the sovereign of the alien shall be try by the record of the chancery for  every league be of record I it will seem that the issue of aliennee may be try  by the jury and the gazette publish by the authority of the crown and contain  the king proclamation for a public peace will be evidence to prove the alien  to be a alien army and the gazette contain the king proclamation declare war  or even public notoriety of the fact will be sufficient evidence to prove a  state of war well v William l raym I and general all matter of record shall be  try by the record itself and not by jury or other coke report b er p wise h h  a e a h h b blow Com a if ancient demesne be plead of a manor and deny it  shall be try by the record of the book of e die pl hob salk e Domesday in the  exchequer but if issue be take that certain acre be parcel of the manor which  be ancient demesne it shall be try by jury for it can be try by the say book  ass but vide e a in f Fitzherbert attachment sur prohibition Br attachment sur  Prohib f a attachment upon a prohibition they be at issue if the suit in  courtchristian be for tithe or for rend reserve and it be try by jury and not  by the roll of the bishop for they be not of record the same law of all other  court which be not of record h a e and therewith agree e a and g postea a Br  averment Fitzherbert estoppel   b Plowd a Br estop Doctr pl g probate of a  will show forth under the seal of the ordinary yet the other party may plead  that he who be dead die intestate as it be hold in e a king this can now be  consider as law for in Allen v dundas TR the court decide that payment to a  executor who have obtain probate of a forge will be a discharge to the debtor  of the intestate notwithstanding the probate be afterward declare null and  administration be grant to the intestate next of kin and further hold that a  probate as long as it remain unrepealed can be impeach in the temporal court  king so if issue be take upon the probate of a will or if administration be  commit although they show the bishop letter testimonial it shall be try by  jury and therewith agree Elizabeth die h dyer pl h b vide h a when a man be  find idiot from his birth by office he who be so find idiot false as be  suppose may come in person into chancery before the chancellor and pray that  before he and such justice or sage of the law which he shall call to he and be  call the king counsel he may be examine if he be idiot or not or his friend  may sue a writ out of the chancery returnable in the chancery to bring he into  the chancery ibidem cor nob council our men examinand and if it be find upon  such examination that he be no idiot the office find thereof and the whole  examination which have be make by force of the writ or the king commission be  utter void without any traverse coke b to point out de law or other suit as  appear by the register f n b a f n b b a vide e livery notam chosen now by the  statute make and h c idiot and their land be in the survey of the court of  ware c a b f n b c b apostate shall be certify by the abbot or other religious  governor to who he owe obedience f n b register a in some case as in c   light  a roll palm hob blow b   c general bastardy d   light a   d excommengement  loyalty of matrimony profession and diverse other ecclesiastical matter shall  be try by the certificate of the bishop in appeal and upon approvement the  defendant in some case may plead not guilty and try it with the plaintiff by  combat or e Br appeal Br battle e battle in proper person before the justice  ass p f h b Fitzherbert cor Br battle f h so in a writ of right the tenant may  join issue upon the mere right and try it by combat or battle by his champion  with a freeman the champion of the demandant and not in person before the  justice e a g Fitzherbert law Br law g h b h b l appeal of murder treason or  other offence and wager of battle be abolish Geo three cap l if it be in  question whether the sheriff make such a return it shall be try by the sheriff  h a b h Fitzherbert trial h trial by certificate of the coke report a er p  sheriff upon a writ direct to he in case of privilege if one be citizen I    light a I or foreigner h if a question be make if such a one be sheriff it  shall be try by the examination of the sheriff himself h b yet he be make by  letter patent of record and therefore it may likewise be try by record h b a  return make by the undersheriff if it be deny shall be try by the undersheriff  and the sheriff can disavow it if he confess he to be his undersheriff h b if  a approver say that he commence his appeal before the coroner by duress it  shall be try by the coroner and if the coroner deny it he shall be hang ass e  Coro trial if the statute show forth to be the true statute or not shall be by  the examination of the mayor and clerk of the statute who take the statute and  not by jury f n b a king e king   light a roll a hob Br trial Cr car t r king  cust of London shall be try by the mayor and alderman and certify by the mouth  of the recorder e e in a assize the tenant say that the land be seize in the  king hand it shall be try by the examination of the escheator h ass if one in  avoidance of a l   light a Cr car roll l utlagary allege that he be in prison  at Bourdeaux ultra mare in serve majoris de Bourdeaux it shall be try by the  certificate of the mayor e and in like case such trial shall be by the  certificate of the marshal of a e b   light a a the host e light f n b and by  the captain of b roll b Calais e h by a messenger of a thing do beyond sea as  in c dyer pl jenk cent Inst more trial by wager of law c Barties case  Elizabeth vide h at the petit cape the tenant say that he be imprison day  before the default and day after it shall be try by the examination of the  attorney r examinate not attach by day in assize shall not be try by jury but  by examination of the bailiff so that the tenant be not summon secundum law  terr shall not be try by jury but by wager of law and coke a wager of law  countervail a jury for the tenant shall make his law de the twelfth manu I e  eleven beside himself m the book seem to leave it doubtful whether eleven  compurgator be absolute necessary Vid king v William barn Cress SC dow Ryl the  court will not assist the party upon motion by say what the proper number be  ib Vid vin ab lev gager oh m and that for to avoid delay unless it be against  a corporation as mayor and commonalty for then it shall be try by the country  for necessity because he can wage law in a writ of deceit upon a recovery by  default the trial shall be if the judgement be give upon the petit cape by the  summoner if upon the grand cape by summoner pernors or viewer and not by the  country e b so if a recovery by default in a real action be plead to which the  other say not comprise it shall not be try by jury but by the summoner and  viewer h and yet there be no remedy if they say false and therefore where be  majus periculum there cautiously be agendum the cause of challenge shall be  try by two d roll d triers to be appoint by the justice e b e a e v ig e a e b  h b h b ass h a but trial of any of the grand jury shall be take before four  knight also trial may be in debt upon a simple contract detinue c either by  wager of law of the defendant himself or by jury at the defendant election  vide ass p trial by jury of atorneys of the common plea and the exchequer as  to diverse other trial as per e   a Poph Cr Elizabeth die pl Dall pl jenk cent  Inst Stanf Coron a b e center point tongue per primos a swearer elsewhere per  primos only upon not comprise and certificate of assize by jury with witness  adjoin by trial by grand assize above the number of coke report b er p that be  to say by c by trial in attaint by I have omit these and diverse other the  like because they be trial by juror and for they vide e the statute of e stat  staple c e stat staple c h e c h c h c the stat of York cap e e ass p ass ass  p ass ass e b h h b ass ass ass ass p ass ass ass h h h h ctera patent concern  trial by particular custom I whole omit they on purpose it appear by ancient  record as well before the Conquest as since for no credit be to be give to  conjecture than then there be another manner of trial in criminal cause and  that be call ordalium and in the Saxon language a Seld Janus spelm gloss title  ordalium a ordel which be as much as to say free from sin for or in the say  language be privative and deal be part I e no party or not guilty and then the  defendant be arraign and plead not guilty may choose whether he will put  himself coke b upon God and the country which be upon the verdict of twelve  man as they do to this day or upon God only and therefore it be call judgment  God presume that God will deliver the innocent see if he be of free estate  then per fire know to pass over nine plowshare ignitos nude foot and if he  escape illsus then he shall be acquit and if not he shall be condemned si pars  rea to be serve condition then he may put himself upon the trial of God see  per water and that in diverse manner all which appear in lambard word ordalium  with all the superstitious vanity appertain to it and thereof Glanville write  who write in the time of h lib cap king John in Turri London member king Petro  de Scudamor other c mandamus thou quod to come together One cum viscount our  men Winton ad diem locum to coincide with et tanquam justice our men take hold  to make judgment iron a robin from petit pass quod ei adjudge be per justice  our men itinerantes tempore prohibition et tune take hold non to be able  because appellee to be de death man et cum law ind to take in hand to make ind  quod judgment to hand over mandamus for viscount our men Wintonity c this  manner of trial be call usual purification and utter forbid by the canon of  the church as temptation of God and not lawful trial and that they be invent  fabricant diabolo et in gloss to say usual purification pro fabricant diabolo  be invention cum sit contra prceptum domini non tentab owner god tuum and  afterward the say trial call order videlicet judgment fire et get water be  take away by parliament and that appear rot pat year W memr for the record say  to see in advance to be per king et concilium c and this be the true manner of  the say trial of see seldom Analecton lib c de day syris note on Ead c and  note on polyolbion see also Spelman verb judgment God hundredum to swear  falsely c Pasquires research lib c ordel and although it be first forbid by  the canon yet it remain in use within this realm till it be utter take away by  authority of parliament Inst Inst and monomachia I e war be also forbid by the  canon but yet forasmuch as it be not take away by parliament it in some case  as appear before remain even to this day of this manner of trial by combat or  battle not only Glanville write lib cap as he write also of ordel but Bracton  lib draw cap fol and Briton cap write only coke a of the trial by battle and  not of ordel because that when they write be utter take away and condemned  vide second note cap for all which because many have err in this point of  antiquity I think worthy to be impart to the studious reader coke report a er  p