this parliament (a) to the following effect: "Because it " seldom happened, but that the champion of the de

mandant is forsworn, in that he sweareth that he or "his father saw the seisin of his lord or his ancestor, and "his father commanded him to deraign that right;" it is. provided, that henceforth the champion of the demandant shall not be compelled so to swear. But the old oath in other points was to be observed.

Several provisions were enacted to facilitate the course of proceeding and process in actions. In a writ of dower unde nihil habet, the old plea of the tenant, whereby it used to be objected that she had received her dower of another man before the writ purchased, was taken away (b); unless the tenant could shew that she had received part of her dower of himself, and in the same town, before the writ purchased.

Vouching to

Vouching to warranty and casting essoins warranty. were put under some wholesome restrictions. These indulgencies had been too much abused. In all real actions, the tenant was permitted to vouch any person, though he or any of his ancestors never had any thing in the land whereof he might infeoff the tenant, or any of his ancestors. Again, the person vouched might in like manner vouch another; and when we consider that upon every summons ad warrantizandum, there must be a lapse of several months before a return of the writ could be had, the delay was infinite; while every voucher perhaps was false. To remedy this, it was provided as follows (c): First, as to writs of possession, as those of mortauncestor, cosinage, of aiel (a writ in nature of a mortauncestor) (d), nuper obiit (for so they now called a writ de proparte), of intrusion, and other similar writs; if the tenant vouched to warranty, and the demandant

(a) Ch. 41.

(b) Ch. 49.
(d) Vid. ant. Vol. I. 363.

(c) Ch. 40.

counterpleaded it, and averred by assise or by the country, or otherwise, as the court should award, that the tenant or his ancestor, whose heir he was, was the first that entered after the death of him of whose seisin he demanded the land; then the averment of the demandant should be received, if the tenant would abide thereon: and if not, and he had not his vouchee ready to enter immediately into the warranty, he should be compelled to answer over; saving to the demandant such exception against the vouchee, if he would vouch over, as he had against the first tenant.

Moreover it was provided, that in writs of entry which. made mention of degrees, none were to vouch out of the line there mentioned. As to writs which made no mention of degrees; as the writ of entry in the post; those writs, says the statute, shall not have place, but where the other writs naming the degrees could not be maintained (a). If the demandant would aver, that neither the vouchee nor his ancestor had ever seisin of the land or tenement demanded, nor fee or service by the hands of his tenant, or his ancestors, since the time of him on whose. seisin the demandant declared, until the time the writ was purchased, whereby he might have infeoffed the tenant or his ancestors; the statute directs this counterplea should be allowed in the before-mentioned writs of possession, as well as in a writ of right. After all these checks upon vouching, the statute, notwithstanding, has a saving for tenants, who, though ousted of their voucher by the counterpleas above-mentioned, yet, might, perhaps, really have a charter of warranty: as if a person, who neither himself nor any of his ancestors ever had any thing in the land, released to the tenant with warranty; and a writ was brought against the tenant, and he vouched the releasor, and the demandant counterpleaded the voucher

(a) Vid. ant. 72.

under this statute, namely, that neither he nor his ancestors ever had any seisin; then the tenant was ousted of his voucher, but yet, by the saying here made, he was to have his remedy over by a writ of warrantia chartæ (a).

Essoins were as great a grievance in judicial proceed ings, as vouching to warranty. To limit these also, it was provided (b), that because in writs of assise, attaint, and juris utrùm, for so the assisa utrùm was now called (where the jurors, being returned the first day, suffered most by delays), the jurors had been troubled by reason of the essoins of tenants; therefore, after the tenant had once appeared in court, he should be no more essoined, unless he would make his attorney to sue for him; and if not, it was enacted, that the assise or jury (c) should be taken by default.

There was an instance in which the delay of essoins was carried to an infinite length: that was, where there was an essɔining simul et vicissim, or as it was now called, a fourcher by essoin; as when a præcipe was brought against two or more tenants, and after each had had one essoin, which was by law due to them, they further delayed the demandant by alternately successive essoins. As for instance, a præcipe is brought against A. and B. A. is essoined, and B. appears, and hath idem dies given him ; at which day A. appears, but B. casts an essoin: at the dies datus A. is essoined again, and B. appears; and so alternately this was called fourcher, that is, to divide; because they divide themselves, in delay of the demandant by essoins and appearances, interchangeably (d). The excess to which this practice was now carried, had crept in since the time of Bracton; or at least it was discountenanced by that author; for he lays it down ex

:

(c) L'assise ou la juree, to comprehend the two characters the recogni tors might by possibility appear in at the trial.

(d) 2 Inst. 250.

pressly, that an essoin, in such case, should not be allowed at every appearance, on account of the infinite delay it would occasion (a). The statute made to remedy this abuse (b) recites, that "forasmuch as demandants are દ often delayed, by reason that many parceners are te"nants, of whom noue can be compelled to answer without "the other; or the tenants may be jointly infeoffed, in "which case none may know his several fight; and such "tenants often fourch by essoin, so that every one of "them has a several essoin;" it therefore enacts, that for the future such tenants shall not have an essoin, but only at one day, as a sole tenant has; so that they shall no more fourch, but have only one essoin.

Of all the various essoins, none put so effectual a stop to justice as that de ultra mare; by which persons would esson themselves, though they were really within the realm the day of the summons. It was ordained (c), that this essoin should not always be allowed, if the demandant would challenge it, and be ready to aver that the tenant was in England the day of the summons, and three weeks after; but it should be adjourned in this form: that, if the demandant was ready at a certain day, by averment of the country or otherwise, as the court should award, to prove that the tenant was within the four seas the day he was summoned, and three weeks after, so that he might be reasonably warned by the summons, the essoin should be turned into a default (d).

Thus far of these obsolete parts of our ancient jurisprudence; which we have ventured to treat so fully, that the history of our law may be better understood, and the causes and effects upon which the changes of our jurisprudence have at different periods turned, may be clearly distinguished.

(a) Vid. ant. vol. I.410. (6) Ch. 43. (c) Ch, 44, (d) Vid. ant, vol. I. 404.

We have seen what the solemnitas attachiamentorum was in the last reign (a). The great delay occasioned by this tediousness of process made it necessary to shorten it very considerably. This design was begun by the statute of Marlbridge, which ordained, that the second attachment should be per meliores plegios, and then should go the last or great distress(b). Another step of this process was now taken off; for it was ordained (c), that should the tenant or defendant, after the first attachment returned, make default, immediately the great distress should be awarded; and if the sheriff did not make sufficient return thereof upon a certain day, he should be amerced. If he returned, that he had done execution in due manner, and the issues were delivered to the mainpernors, then he was commanded to return issues, at another day, before the justices. If the party came in at the day to save his default, he was to have the issues. If he came not, the king was to have them; that is, the justices of the king were to cause them to be delivered to the wardrobe; the justices of the bench at Westminster were to deliver them to the exchequer; the justices in eyre to the sheriff of the county.

A new time of limitation was fixed in the following manner In conveying a descent in a writ of right, it was enacted (d), that none should presume to declare of the seisin of his ancestor beyond the time of king Richard; . which has since been always construed to mean the first day of that king's reign. Writs of novel disseisin, and of partition, commonly called nuper obiit, were to have limitation from the first voyage of Henry III. into Gascony, which was in the fifth year of his reign (a period that had been fixed for assises of novel disseisin by the statute of Merton) (e);

(a) Vid. ant. vol. I. 481, &c. (b) Vid. ant. 75. (c) Ch. 45. (d) Ch. 39. (e) For the limitations fixed by the statute of Merton, vid, aut. vol. I. 264. For the limitation of the seisin in a writ of right, vid. ibid. 427.