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]
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.
Book XIII.
CONCERNING PLEAS BY ASSISES AND RECOGNITIONS. AND OF DIFFERENT KINDS OF DISSEISINS.