The Exact Law-giver; Faithfully Communicating
Being as a Light unto all the Profeſſors of the Law, as well Counſellors as Atturneys, Clerks, Soliciters, Scriveners, &c. OR A MANƲ-DƲCTIO, Or a Leading, as it were, by the hand, all ſuch, both of the Gentry or Laity (as deſire to be Inſtructed how to gain or preſerve their Eſtates from the hands of their cruell Adverſaries) to the Perfect Knowledg of the Common and Statute Law of this Nation.
Ratio cum eſt in mente hominis confirmata & conferta lex eſt, & lex eſt radius divini luminis.
LONDON, Printed for Thomas Baſſett in St Dunſtans Church-yard in Fleet-ſtreet. 1658.
THis Book being an Antient Manuſcript coming to my hands, which through my own ſmall skill in the Law, perceiving it to be an Ingenious thing, yet deſiring to bring it to the Teſt, I do aſſure you the grave Judgment of ſuch as were profound in the Knowledg of the Law, with me not only approved of it, but highly Commended it, for an Ellaborate and Learned Treatiſe, adjudging it a thing worthy to be Publiſhed for the good of the whole Nation. Theſe lively Characters of the goodneſs of the Book, agreeing with, and as wonderfully reliſhing with my Genious, being very ambitious to do ſomething that might manifeſt to my ſelf the filial love I bear unto my Country, I reſolved to publiſh it, (but incognito) eſteeming him the Charitableſt man that diſpenceth his Larges freely, but privately.
Another Reaſon that I do not atteſt it with my Name, is; becauſe I am no waies greedy of the worlds applaus, adjuding it as little worth. And if it be objected why I do not ſet my Friends Name to it, whoſe Script it was, I make this my Anſwer and Apology, That I am not of their minds, who to get themſelves or their Friends a great applaus with the common people, matter not what wiles or crafts they uſe, ſo that they can any wiſe bring their device about.
But of the contrary Opinion am I, deteſting ſuch abſurdities, who as I muſt ſay the truth, do acknowledg that I am not throughly convinced in my mind, that my Friend, in whoſe Library I found this (Script) did make or Compoſe it, and therefore I would not preſume to affix his Name to any thing that ſhould not be abſolutely his; and the ſmallneſs of the thing beſides would have raiſed a Quaere, fi I ſhould have had ſuch a thought.
Howbeit, being carried with a great deſire of hearing Commendations of the thing, and thereby to be greatly delighted; imagining the Praiſes of it to be the juſt Deſerts of my worthy Friend and ſuppoſed Author, I was neceſſitated, as it were, what by my own deſire to do my Country good, and what by the great Commendations ſeverall Eminent Practiſers of our Law gave of it, to cauſe it to be put in print, which being done, I repreſent it to the open View of all men, wiſhing them Candidly to peruſe it, not doubting but they will find it anſwer their deſires, to their great Uſe and Benefit. But knowing on the other ſide, that many wil be apt to ſpurn, if they find the leaſt (Iota) wanting, I wiſh them to remember Nemo naſcitur ſine crimine; I crave the favourable Conſtruction of all ingenious Perſons, and for the (Malevilous) and Caterpillers of our Age, which will not be content with any thing, I leave as I find. Vale.
THere is no Jewel in the world comparable to Learning;The Excellency of the Common Law of England. no Learning ſo excellent both for Prince and Subject, as the knowledge of Laws; and no knowledge of any humane Laws ſo neceſſary, as of thoſe under which we are ſubject; And if we reſpect the goodneſs of Law in general, we ſhall2 find none ſo neceſſary for all Eſtates, and for all Caſes, concerning Goods, Lands or Life, as the Common Laws of England: And ſuch is the judgement of the Honourable the Lord Coke, and other famous Sages of our Law, the very eccho of whoſe words are of ſufficient power to engraff (an honourable reſpect thereof) in the mind of any ingenious perſon.
And that the conceited Noveliſts and malevilous ſpirits of theſe our times (who ſpurn at any thing of Antiquity) may be infatuated in their opinions, and withdrawn from their raſh and overmalepert cenſure of our Common Law, let them conſider the Reaſons which induced thoſe Worthies to their high eſtimation and value of our Common Laws of England.
For (ſay they) if the ancient Laws of this noble Iſland (viz.) England, had not excelled all others, it could not be but ſome of the ſeveral Conquerours and Governours thereof (that is to ſay) the Romans, Saxons, Danes, or Normans, but eſpecially the Romans, (who as they juſtly may) do boaſt of their Civil Laws, would, as every of them3 might, have altered or changed the ſame: And this alſo is the opinion of the Honourable Sir John Forteſcue, the Lord Coke, and many more.
Yet notwithſtanding theſe Honourable Vouchers of the Excellency of our Common Law, one Zoilus or other never leaves carping at it, though thereby they do but diſplay their own ignorance and folly, even as the Flie which never leaves ſpurning at the Candle till it burns its own wings.
And of ſuch kind are thoſe firſt of all, who exclaim againſt the Law, becauſe writ in an unknown tongue (when as their object ſhews a worthineſs in it) For as all humane things are excellent by their order, ſo the Common Law of England hath ſome luſtre by its proper and peculiar language, yea and is tranſcendent in its order, to all humane Sciences in the world: When we conſider that the true genuine ſenſe, and fullfraught phraſe of our Common Laws of England cannot be ſo well expreſt, nor any Caſe in Law ſo ſuccinctly ſenſible, and withall ſo fully reported and demonſtrated, as in that ſpeech our Anceſtours firſt taught it to ſpeak, viz. that4 trinal compoſition and connexture of three Languages, viz. Engliſh, Latine and French.
Which reaſon ſurely (ſaith a Reverend Judge) hath not been well underſtood by thoſe, who object it as a fault to the profeſſors of the Law, who ſay, They write the Books of Law in a ſtrange Language, which none can underſtand but themſelves, that thereby the people might be kept in ignorance, and they the more admired and eſteemed: And (ſaith Cicero in his firſt Book de Oratore) were held of the firſt Profeſſours of the Romans Civil Law, Quia veteres illi qui huic ſcientiae praefuerunt, obſtinendae atque augendae potentiae ſuae cauſa per vulgari artem ſuam noluerunt.
But the weakneſs of this Objection doth manifeſtly appear, in that there is ſuch a facility in the reading and underſtanding of the Law French; For none can deny but that it may be learnt in a week or fortnights time without a teacher: So that it may boldly be ſaid in honour of the Common Laws of England, That there is no rational Science in the world, having ſo many words and5 terms of Art, whoſe Caſes, Arguments and Judgements are expreſſed and delivered in a form of ſpeech, ſo plain, ſo ſignificant, and a tongue ſo ſoon learned as our Common Laws of England.
The alteration of which hath brought in innumerable Petifoggers and Splitters of Cauſes, (as they may well be called,) who by the reading of two or three Law-books in Engliſh, dare take the preſumption to infatuate and delude ignorant people, under the notion of being cunning in carrying on of buſineſs (which if they be) it is meerly in the nature of the horſleech, to ſuck them dry that imploy them; and beſides through their ignorance of the true ſenſe of the Law, they undo many a Cauſe, which good Councel might have ſaved.
Secondly, Our Laws are villified with the aſperſion of uncertainty and unneceſſary delayes in its proceedings, when we all know, That the Law is but a Rule of Reaſon, and humane Reaſon being pliable every way, not onely the knowledge of our Law, but all other rational Sciences in the whole world which are6 ſubject to argument and diſcourſe, muſt needs be ſubject to uncertainty and errour: Yet if we will take the honourable the Lord Coke's Teſtimony, there is no Art or Science which dependeth upon diſcourſe of reaſon, ſo little ſubject to divers Interpretations as our Common Law of England; and this he ſpake by his own experience, as in the Epiſtle to the ſecond part of his Reports he tels us, That in all his time there was not moved in the Courts of Juſtice in England two Queſtions touching the Right of Deſcents or Eſcheats, or the like fundamental points of the Common Law; So certain, ſure, and without queſtions are the principles and grounds thereof. And furthermore it will be a confirmation of its certainty and ſure principles, even to admiration, when we conſider with what wonderfull Judgement the grounds of our Laws were laid, which in ſo many hundred years after their eſtabliſhing, do ſtill meet with, and provide for almoſt all the Caſes that can happen in a Commonwealth. And herein alſo doth appear profound wiſdome and ſimplicity in their eſtabliſhing, in that the grounds7 hereof are ſo clear and plain, that whereas the Civil Law, which is ſo highly eſteemed is fain to have gloſs upon gloſs, even to a great number; for the true underſtanding of the Text of their Law, when the Text of the Common Laws of England, which hath continued ſo many hundred years, hath had but one Commentary upon its Text, viz. the Lord Coke's Commentary on Littleton, which contains the principal grounds of our Common Laws. So that it plainly appears, That the Judgement and Reaſon of the Common Law of England is more certain then any humane Laws in the world beſides. And for Delayes, though the Law and Lawyer chiefly be blamed, yet the main cauſe of Delayes ariſe from the ſtomackfulneſs and perverſneſs of Clyents, who are of that contentious diſpoſition, that they will ſpend all that ever they are worth, ſo they may have their wils, and through their own refractorineſs and perverſe humours will reverſe Judgment after Judgement, and Decree after Decree, ſtanding by their good wils to nothing which the Law awards; And indeed there be too many of theſe8 melevolous ſpirits, who cannot be content to undo themſelves, but will ſtrive alſo to ruine others, and not only ſo, but will ſtrive alſo to ruine others, and not onely ſo, but ſtrive to defame the learned and honeſt Council, becauſe the Cauſe went againſt them, when as it is the uprightneſs of the Law, which diſtinguiſheth right from wrong.
And furthermore our legal proceedings are ſo contrary to the common conceived opinion that almoſt any cauſe in the Common Law being orderly purſued may come to a period in a year, whereas in France (as Bedin teſtifieth) the like will ſcarcely be in thirty years. And laſtly, for the malediction of all frivilous Objections, and in honour of our Nation: There is no Nation in the world (ſayes a learned Judge) that hath a courſe of Juſtice ſo ſpeedy, and withall ſo commodious and eaſie for the Subject, as our Trials of Aſſize, and niſi prius are; for Juſtice the Lady and Queen of all moral vertues, makes her progreſs twice in a year throughout every Country in the Land, ſo that the Fountaines of Juſtice are conveyed even home (as it were) to our very doores.
9And now having ſhewed you the Antiquity, Eminency, and Perfection of the Common Laws of England, I ſhall in the next place ſay ſomething of the learned Profeſſors thereof.
AS I have demonſtrated unto you by infallible Reaſons and ſufficient Witneſſes the worthineſs of our common Law,Of the Profeſſors of the Law. diſperſed the grand Objections which have riſen againſt it, ſo ſhall I in this place ſtrive to vindicate the learned Profeſſours thereof from the unjuſt calumnies aſperſed againſt them. And
Firſt of all, It is objected againſt them, as it was againſt the Law it ſelf, that they are the cauſe of long and tedious Suites in that they wittingly and willingly take upon them bad Cauſes, knowing them to be unjuſt when they are firſt conſulted with and retained; And that a bad Cauſe never wants a10 Councellor to defend it, and ſuch like. To which I anſwer, that the learned Profeſſor may be able to give judgment upon moſt Cauſes at their firſt commencement, and may know right from wrong, this I ſay they may do, and yet not wittingly maintain a bad Cauſe: for it is to be conſidered, that the Counſellor hears but one mans Cauſe only; and to be ſure the Clyent will make his own Cauſe good: How then ſhould the learned Counſellor be able to diſtinguiſh right from wrong, untill it be known what can be alledged and proved by either party: how then can it be ſaid that the Councell maintains an unjuſt Cauſe, when he knows not how the Caſe will be, till he had made his utmoſt defence? Secondly, This Objection will be invalid, if we conſider how tender our Judges are of the reputation of the profeſſion of the Law, by branding (as it were) with infamy all ſuch as give ſiniſter Councill, or too boldly defend a bad Cauſe, ſo that ſeldom or never are ſuch permitted to riſe to any higher degree in the Law; and this is the teſtimony of one of our famous Judges: and for the Attorneys11 or practiſers, they are commonly caſt over the Barr, and detained from practice upon their default; ſuch great care is taken to ſuppreſs diſhoneſty amongſt the profeſſors of ſo Honourable a Science. So now ſeeing that there is no juſt Cauſe of ſuch aſperſions, which I hope few can deny; yet if they do, I am ſure they muſt allow, That all men, at all times, and in all places, do ſtand in need of juſtice, which is the Law, for Law is but the rule of juſtice, and without her ſupport the Noble man cannot maintain his Honour, nor the ſubject his liberty; nay, without her no man living, either virtuous or vicious, can enjoy his life or any thing that makes his life delightfull: If the Law then merits ſo much of all mankind in generall, (for that it is the fountain of all our benefits;) what do the profeſſors of this Law then deſerve, which draw theſe benefits out of this fountain, and convey the ſame to every one of us: for the Law being only a rule to meaſure the actions of men, the rule cannot meaſure unleſs applied by the hand of the Architect: and Cicero defining the Law ſayes; It is mutus12 Magiſtratus, even dumb and ſpeaks not but by the tongue of a learned and eloquent Lawyer; deaf and heareth no complaints but by the ear of a grave and potent Judg; blind and ſeeth not, but by the eye of a watchfull and diligent Officer: ſo that without theſe Interpreters of the Law, viz. the learned Profeſſors thereof, there can be no uſe or application of the Law, and conſequently the Law and Juſtice it ſelf cannot conſiſt without them.
Thus have I briefly treated of the Law and Lawyers, anſwering to all the Objections that might be brought againſt the one or the other. In the next place I will lay before you the definition of the Law, that from thence we may proceed to the ſtructure it ſelf.
LAw is defined by our Anceſtors and others,What Law is. to be that which commands thoſe things which are to be done, and13 forbids their contraries.
2. To be the rule of all morall Acts, obliging to what is right, and is the conſervation of Juſtice, which is a conſtant and perpetuall will to give every one his own.
3. The precepts of Law are, as Bracton ſaith, to live honeſtly, wrong no man, give every man his own, and the like.
4. The Law is the direction and adminiſtration of Juſtice and Injuſtice, is (as the Emperour Juſtinian ſaith) a conſtant and permanent will to render every perſon his right; and duty.
5. Demoſthenes the renowned Orator, defines it to be the gift of God as well as the Decrees of Learned men; and ſo likewiſe Chryſippus an excellent Philoſopher begins his book of Laws; The Law, ſayes he, is King of all as well divine as humane Offices, the Preſident and Councellor of all things, honeſt or diſhoneſt; Captain and Ruler of the juſt and unjuſt; and is of ſeverall natures, as well the commander of what they ought to do, as the forbidder of what they ought not to do; it is that only which diſtinguiſheth right from wrong; for (ubi Lex non14 diſtinguit nec nos diſtinguere debemus.) Thus you ſee how joyntly and ſeverally our moſt famous Anceſtors have defined Law unanimouſly agreeing; That it is a fortreſs for the weak to retire unto; a ſanctuary for the oppreſſed to fly unto; reſtraining the boldneſs of the inſolent; tying (as it were with manacles) the hands of the potent, and like Orpheus Harp, charming the fierceneſs of the Lyon or Tyger, ſo as the poor Lamb may lie in ſafety by them.
And now having thus moderately diſcourſed of the Law, and the Profeſſors thereof, I ſhall henceforward ſpeak of ſeverall fundamentall parts both of the Common and Statute Law of this Nation.
YOu ſhall therefore underſtand, that whoſoever hath any Eſtate in Lands or Tenements, either he hath in the ſame only a Chattell, or a Free hold,15 or an Inheritance;Chattell. if he hath an Eſtate but for terme of certain years, or at his Landlords will, then it is called a Chattell; if for terme of his life, or for any other mans life, it is called a Free-hold;Free-hold. and if he hath to him and to his heirs in fee-ſimple or in taile,Inheritance. then he hath an Eſtate of Inheritance.
TEnant for terme of years, is he to whom Lands or Tenements be let for terme of certain years, as is agreed between the Landlord and the Tenant, and when the perſon to whom ſuch Leaſe is made, doth enter by force of the ſaid Leaſe, and is in poſſeſſion of the ſame, then he is called a Tenant for terme of years. And here ye ſhall note, that if the Leſſour that made the Leaſe,Rent reſerved. hath reſerved unto him a yearly Rent upon the ſaid Leaſe, as it is accuſtomably uſed to be done; if the Rent be behind and unpaid, it ſhall be in his16 lection either to enter and diſtrain for the Rent,Action of Debt. or to bring an Action of Debt againſt the Tenant for the arrerages of the ſame:A good Plea. But in this caſe it is requiſite that the Leſſour were ſeized of the Lands or Tenements at the time of the making of the Leaſe, for otherwiſe it ſhall be a good Plea in the Action of Debt, for the Tenant to ſay, the Leſſour had nothing in the Lands and Tenements at the time of the Leaſe made, except the Leaſe were made by Deed indented, for then the Plea ſhall not be in the Tenants mouth to plead.
And it is to be known,Livery of Seiſin needeth not in a Leaſe for terme of years. that in a Leaſe for terme of years, whether it be by Deed or without Deed, there need no livery of ſeaſin to be made to the Leſſee, but he may enter when he will by virtue of his Leaſe, without any further ceremony of the Law.
And if a man leaſeth Lands for terme of years, though the Leſſour chanceth to die before the Leſſee doth enter, yet he may enter well enough, otherwiſe it is where livery of ſeiſin is to be made as in Free-holds and inheritances.
Alſo if the Tenant for years doth waſte,Waſte. the Landlord may bring an17 Action of Waſte againſt him, and ſhall recover the place waſted, and his treble damages.
Alſo if a Leaſe for years be made of two ſeverall things, and after the one is recovered, the Leſſee ſhall hold the other, and the rent or farme ſhall be apportioned, M. 12. H 8.
Alſo if the Tenant for years granteth a greater eſtate in the Land then he hath himſelf, whereby he conveyeth the fee-ſimple to himſelf,Forfeiture he ſhall forfeit his Leaſe or terme.
TEnant at will, is he to whom Lands or Tenements be leaſed, to have and to hold the ſame at the will of the Leſſour, and in this caſe the Leſſour may put out his Tenant at what time he liſteth; but yet nevertheleſs if the Tenant have ſowed the grounds with Corn, in this caſe if the Leſſour will enter and put out his Tenant before18 harveſt, the Law will give him free coming and going to reap and carry his Corn away, without any puniſhment or damages to be ſuſtained for his ſo doing, becauſe he knew not at what time the Leſſour would enter: but otherwiſe it is of Tenant for certain terme of years; for if he ſoweth the ground, and his terme of his Leaſe be come out, and expire before the Corn be ripe, in this caſe the Leſſour, or he in the reverſion, may enter and take the Corn, becauſe it was the folly of the Tenant to ſowe the ground, knowing the end of his terme.
So likewiſe Tenant at will ſhall have free coming and going after the time of the Leſſours entry, to carry away his houſhold ſtuff and goods, for a reaſonable ſpace.
Ye ſhall alſo underſtand, that he that maketh a Leaſe at will, may reſerve an annual or yearly rent;Diſtreſs or action of Debt. in which caſe if the rent be behind, he may enter very well, and diſtrain the Goods and Chattels of the Tenant, or at his election he may bring an Action of Debt againſt him.
Alſo it is to be known, that a Tenant19 at will of a Houſe or Tenement, is not bound by the order of the Law, to ſuſtain and repair the Houſes that be decayed and ruinous, as is the Tenant for years, and therefore no Action of Waſte lieth againſt him:Waſte. yet if he will do wilfull waſte, as if he plucketh down the Houſes, or cutteth down the Trees, it hath been thought by the Sages of the Law, that the Leſſour may bring an Action of Treſpaſs againſt him, and ſhall recover his loſſes thereby ſuſtained.
And if ſuch a Tenant die, and his Heir enter, in that caſe the Leſſour may have an Action of Treſpaſs againſt the Heir for his entrie. Treſpaſs.
THere is another kind of Tenant at Will which is called Tenant by Copie of the Court Rolles, and this is when a man is ſeiſed of a Mannour, within which it hath been uſed time out of minde, that the Tenants within the20 bounds and precinct of the ſaid Mannour, have holden Lands and Tenements to them and to their Heirs in fee-ſimple, ſee-taile or for terme of life, at the will of the Lord, according to the cuſtome of the Mannor, and ſuch a Tenant cannot alien or ſell his Land by his Deed; for if he doe, the Land or Tenement that is ſo alienated and ſold, is forfeit into the Lords hands: but if he will alien his Copyhold-Land to another, he muſt according to the cuſtome, come into the Lords Court,Surrender. and there ſurrender it into the Lords hands, to the behoof and uſe of him that ſhall have the Eſtate; the form of which Surrender is commonly uſed to be thus:
Ad hanc curiam venit A. de B. & ſurſum redidit in eadem curia unum meſvagium,The form of a Surrender. &c. in manus Domini ad uſum C. de D. & heredum ſuorum vel heredum de corpore, &c. Et ſuper hoc venit praedictus C. de D. & eripiet de Domino in eadem curiâ meſvagium praedictum habendum & tenendum ſibi, &c. ad voluntatem Domini ſecundum conſuetudinem Manerij faciend inde redditus ſervitia & conſuetudines inde juris debita & cenſuetas, &c. & dat Domino pro fine, &c.21 & fecit Domino fidelitatem.
Theſe, as I ſaid, be called Tenants by Copy of Court Roll, becauſe they have none other Evidence to ſhew concerning their Lands, ſave only the Copies of the Rolls of their Lords Court.
Neither can theſe Tenants ſue or be ſued for ſuch Lands, but in the Kings Court by Writ or otherwiſe; but if they will in any wiſe implead or ſue others for ſuch Copie Lands, they muſt do it by way of plaint in the Lords Court after this form:
A. de D. queritur verſus C. de D. de placito terrae,The form of the Plaint. videlicet de uno meſvagio 46 acris terrae, 4 acris prati, &c. cum pertinentiis & facit proteſtationem ſequi quaerelam iſtam in natura brevis Domini Regis aſſiſae mortis anteceſſoris ad communem Legem pol '&c. Plegij de proſequendo F.O. &c.
Now although ſome ſuch Tenants have an Inheritance according to the cuſtome of that Mannor, yet in very deed they are but Tenants at the will of the Lord: for (as ſome men think) if the Lord will expell them and put them forth, they have no remedy at all but to ſue unto their Lord by way of Petition,22 deſiring him to be a good and gracious Lord unto them: for if they might have any remedy by the Law, then ſhould they not be called (ſay they) Tenants at the will of the Lord after the cuſtome of the Mannor: but other men of no leſs Learning and prudence, have been of contrary judgment, as Lord Brian Chief Juſtice in the time of King Edward the fourth, whoſe opinion was alwayes, that if ſuch a Tenant by the cuſtome (paying his Services) be ejected and put forth by his Lord without cauſe reaſonable,Action of Treſpaſs. he may very well bring and maintain an Action of Treſpaſs againſt his Lord at the Common Law, as appeareth Termino Hillarij An. 21. E. 4. Alſo Lord Danby Chief Juſtice likewiſe was of the ſame judgment, as appeareth Termino Mich. An. 7. E. 4. where he ſaith, That the Tenant by the cuſtome is as well Inheritable to have his Land after the cuſtome, as is he that hath a free-hold at the Common Law: but the determination of this queſtion I remit to my great Maſters, which can loſe the knots and ambiguities of the Law, foraſmuch as yet ſtill of this matter, Cauſidici certant & adhuc ſub judice lis eſt.
23Alſo ye ſhall underſtand, that the uſage of ſome Mannor is, when the Tenant will ſurrender his Land to the uſe of another, that he ſhall take a Wand or a Rod in his hand, and deliver it to the Steward of the Court, and the Steward ſhall deliver the ſame Wand in name of Seiſin, to him that ſhall take the Land, and ſuch a Tenant is called Tenant by the Verge. Divers other cuſtoms there be of ſurrendring of Copyhold Lands, which here for tediouſneſs I will omit: And foraſmuch as Tenants by cuſtome of the Mannor have by the courſe of the Common Law no free-hold; therefore they be called Tenants of baſe Tenure. Baſe Tenure.
Alſo if ſuch a Tenant letteth to farme his Copyhold Land, for longer time then a twelve moneth and a day without the Lords licence, it is a forfeiture of his Land to his Lord.
And know ye, that if this Tenant fell any Timber that groweth upon the Land, but only for the reparation of the ſame, this is Waſt and a forfeiture of his Copyhold.
Hitherto have I treated of the firſt member of our diviſion, that is, to wit24 of Chattels; for (as I ſaid) all Leaſes for terme of years and at will, be accounted in the Law but as Chattels, and be compriſed under that name, ſave that theſe be called Chattels reals, whereas Kine, Oxen,Chattell reall and perſonall. Horſes, Money, Plate, Corn and ſuch like, be called Chattels perſonals: Now we will proceed to the explanation of the ſecond member, that is to ſay of Freeholds.
FReeholds or Frank-tenements a man may have in ſundry wiſe; for either he is ſeized for terme of his own life, or for terme of another mans life; if he be ſeized for terme of his own life, either he hath gotten ſuch eſtate by way of Purchaſe, or elſe the Law hath intituled him thereunto: I call it by purchaſe, whether he cometh unto it by his own bargaining and procurement, or by the gift of his friend: and I call it by the operation of intituling of the Law,25 when a man marrieth a woman that is an inheritrix, and hath iſſue by her,Tenure by the Courteſie. and ſhe dieth, now ſhall he have the Lands during his life by courſe of the Law, and ſhall be called Tenant by the courteſie of England.
Likewiſe if a man be ſeized in fee-ſimple or fee-taile of Lands, and taketh a wife and he dieth, the Law giveth unto the wiſe the third part of her husbands Lands for terme of life,Tenant in Dower. and ſhe ſhall be called Tenant in Dower.
TEnant for terme of Life, is he that holdeth Lands or Tenements for terme of his own life, or for terme of anothers life; howbeit the moſt frequent and common manner of ſpeaking is, to call him that hath an eſtate for terme of his own life Tenant for life, and him that hath an eſtate for terme of anothers life, Tenant for terme, dauter vie, that is to ſay, Tenant for terme of anothers life.
26Ye ſhall note, that like as he that maketh the Leaſe is called the Leſſour, and he to whom the Leaſe is made is called the Leſſee; ſo he that maketh the Feoffment is called the Feoffer, and he to whom the Feoffment is made the Feoffee.
Alſo if the Tenant for terme of life, or Tenant for terme of another mans life doe waſte,Waſte. the Leſſour, or he in the reverſion ſhall maintain very well an Action of Waſte againſt him, and ſhall by the ſame recover trebble damages.
Finally, Ye ſhall underſtand, that by an Act of Parliament made in the 27. year of our Soveraign Lord King Henry the eight, it is enacted, That no Freehold nor eſtate of Inheritance ſhall paſs nor take effect, by reaſon of any bargain and ſale, except the ſame be made by writing indented, ſealed and enrolled in one of the Kings Majeſties Courts at Weſtminſter, or elſe within the County where the Land doth lie, before the Cuſtos Rotulorum, and two Juſtices of Peace and the Clerk of the Peace of the ſame County, or two of them at leaſt, of which the ſaid Clerk ſhall be one, and that ſuch enrolment be made within ſix27 moneths after the date of ſuch writing: and for the enrolment of every ſuch writing, where the Land compriſed therein is not above the yearly value of Fourty ſhillings, they ſhall take two ſhillings, that is Twelve pence to the Juſtices, and Twelve pence to the Clerk; and if the Land be above the yearly value of Fourty ſhillings, then they ſhall take Five ſhillings, that is, Two ſhillings and ſix pence to the Juſtices, and Two ſhillings and ſix pence to the Clerk which ſhall enroll and ingroſs ſufficiently in parchment ſuch Deed and writing; and at every years end he ſhall deliver the ſame to the Cuſtos Rotulorum of the ſame County, to remain in his cuſtody among other Records of the ſame County, ſo that the parties reſorting thither may ſee them: provided that this extend not to any Tenements or Hereditaments lying within any City or Town Corporate, wherein the Majors Records or other Officers have authority, or have lawfully uſed to enroll any Evidences or writings within their Precinct.
TEnant by the Courteſie of England, is he that hath married a Wife inherited; and hath had iſſue by her and ſhe is dead, in this caſe the Law of England permitteth and ſuffereth the husband of ſuch a wife, to receive and keep ſtill all his wives Land that ſhe had either in fee-ſimple or fee-taile ſo long as he liveth, and this is by the curteſie and urbanity of England, for this thing is uſed in none other Country nor Region. But in this it is required, that the Child be vitall, that is to ſay, be born and brought forth into this world alive; and therefore the common ſaying is and hath been, that unleſs the Child be heard cry, the Father ſhall not be Tenant by the courteſie, for the only proof and argument of life in an Infant born, is the vagite and crying. Ye ſhall furthermore underſtand, that unleſs the huſband be in actuall and reall poſſeſſion of his wives Lands, and ſeized of them29 in her right, he ſhall not be Tenant by the courteſie after her death: And therefore if Lands deſcend to a mans Wife, ſo that ſhe is Tenant in the Law, and to every mans Actions, yet if the Husband have not made an actuall entrie during coverture and matrimony between them, he ſhall not be Tenant by the courteſie, for it ſhall be reputed and judged his folly and negligence, that he would not enter in her life time.
Otherwiſe it is of Advowſons, Rents, Commons, and ſuch other things which forthwith when they deſcend, be in man or in a woman, without any entrie or further ceremonie in Law.
Note, That if a Tenant by the courteſie of England, will ſuffer or make any waſte in the Lands or Tenements that he ſo holdeth, he is puniſhable therefore by Action of Waſte brought by him in the reverſion.
Alſo it is to be known, That of things that be in ſuſpenſe, a man ſhall not be Tenant by the courteſie; and therefore if a man be Tenant in fee-ſimple of certain Land, and doth intermarry with a woman that is the Seignioreſs or Lady of the ſame, and hath iſſue by her, and30 ſhe dieth, yet ſhall he not be Tenant by the curteſie of the Lordſhip or Seigniory, becauſe himſelf is Tenant of the Land, and therefore the Lordſhip is ſuſpended for the time, for a man cannot be both Lord and Tenant of one thing; but if he had not been Tenant of Land, he ſhould have had the Lordſhip after the death of his wife by the curteſie of England very well.
Alſo note, That of a right only a man ſhall not be Tenant by the curteſie; as if a woman ſole, ſeized in fee of Lands or Tenements be diſſeized, and after take a husband and they have iſſue, and ſhe die before any reentrie be made, the husband ſhall not be Tenant by the curteſie.
Note further, That of a reverſion a man ſhall not be Tenant by the curteſie; as if a woman ſole ſeized of Land in fee, make a Leaſe to S. for terme of life, after taketh a husband and they have iſſue and ſhe die, living the Leſſee for terme of life, the husband ſhall not be Tenant by the curteſie.
TEnant in Dower, is ſhe that hath been married to a husband that was (during the matrimony between them) ſeized of Lands or Tenements in fee-ſimple or fee-taile, which is now dead, and ſhe ſeized of the third part of her husbands ſaid Lands for terme of her life, for by the Common Law of the Land,Dower at the Common Law. if the husband be at any time during the coverture ſeized lawfully, whether it be by purchaſe or by diſcent, either in fee or in fee-taile, and die, his wife ſhall be endowed by the courſe of the Common Law, of the third foot;Dower by cuſtome. and in ſome places (by an ancient cuſtome) ſhe ſhall be endowed of the Moitie; yea and though the husband were never ſeized actually during the coverture, yet if the Lands be caſt upon him by the Law, ſo that the Law calleth him Tenant to every mans Action, it ſufficeth the woman to demand her dower, for it were unreaſonable that32 the negligence and ſlackneſs of entring of the husband ſhould hurt the wives Title.
Otherwiſe it is as it is ſaid before of Tenant by the courteſie;Tenant by the Courteſie. for if Lands deſcend to a woman covert, and the husband for ſlothfullneſs or negligence doth not enter in his wives life, he ſhall not be Tenant by the courteſie, for by all Laws the wife oweth obedience and ſubjection to her husband, and therefore ſhe cannot compel him to enter: but when Lands diſcend to the wife, the husband only hath power to enter at his pleaſure.
And ye ſhall underſtand, that unleſs the wife be above the age of Nine years at the time of her husbands death, ſhe ſhall not be endowed by the Common Law.
But it is to be known,A Woman ſhall have no Dower. that a woman may by divers wayes eſtoppe and prejudice her ſelf of her dower; as if ſhe commit any crime for which ſhe is attainted of Treaſon, Murder or felony, ſhe ſhall have in this caſe no dower, notwithſtanding ſhe hath obtained her pardon,
Allo if after the death of her husband33 ſhe taketh a Leaſe for terme of life of the ſame Lands whereof ſhe is indowable, ſhe loſeth her dower of the ſame. Moreover if ſhe depart from her huſband, and lieth in adulterie with another man, and is not reconciled again to her husband, without coherſion of the Eccleſiaſticall power, ſhe loſeth her dower after her husbands death; ſhe ſhall be alſo barred of her dower, if ſhe will withhold from the heir, the Charters and Evidence concerning that Land whereof ſhe asketh dower: but none other ſave the Heir can withhold dower for this cauſe. No Dower.
It ought not to be unknown alſo, of what things ſhe may demand dower, and of what things not; of Lands, Meſſuages, Advowſons, Rent-charge, Rent-ſervices, or Seigniories in groſs; or otherwiſe of Villains, of Commons certain, of Eſtovers certain, of Milles and Offices, or of the profit of them ſhe is dowable; but of Commons and Eſtovers ſaus number alſo of Annuities, of Homages of things of Pleaſure, as of Service, of paiment of Roſes and ſemblable, ſhe ſhall not be endowed. Note.
There be yet two other kinds of34 Dower,Dowment ex aſſenſu Patris. the one is called Dowment ex aſſenſu patris, that is to ſay, by the aſſent of the father; and the other is called Dowment de la plus beale part, that is to ſay of the faireſt part: Dowment ex aſſenſu patris, is when the Father is ſeized of Lands in fee ſimple, and his Sonne which is Heir apparant, indoweth his Wife at the Church door when he is eſpouſed, of parcel of his Fathers Lands, with the aſſent of his Father in writing, teſtifying the ſame aſſent; if in this caſe her Husband die, ſhe may forthwith enter into the Land ſo aſſigned unto her, without further procurement of proceſs of Law, although the Father of her ſaid Husband be yet alive, and in actuall poſſeſſion of the Land; but if ſhe thus do, and take her to this endowment at the Church door, ſhe cannot have her Dower alſo by the Common Law of the third part of her Husbands Lands, or any part or parcell of them: Howbeit if ſhe will refuſe this Aſſignment made unto her at the Church door, and demand Dower at the Common Law, ſhe may ſo do v ry well. A man may alſo endow his Wife at the time of the35 Eſpouſals, of his own Lands, the which he hath by his own poſſeſſion, and that Dower is called Dower ad eſtium Eccleſiae, that is to ſay, at the Church door. Dowment ad oſtium Eccleſiae.
Dowment de la plus beale part,Dowment de la plus beale part. that is to ſay, dowment of the faireſt part, ſhall be in this caſe, when a man is ſeized of Lands which he holdeth of another man by Knights-ſervice, and of other Lands which be of Socage tenure, and hath Iſſue which is within the age of fourteen years and die, and the Lord of whom the Land is holden by Knight-ſervice, entreth in the Land holden of him, and the mother of the Child entreth into Socage tenure as Guardian in Socage; if in this caſe the woman will bring a Writ of Dower againſt the Lord which is Guardian in Chivalry, he may plead the ſpeciall Matter, and ſhew how ſhe is Guardian in Socage, and hath ſo much Land, and thereupon pay the Court, that ſhe may be ſuffered to endow her ſelf of ſo much Land being in her own cuſtody, as amounteth to the third part of the whole Lands.
And then the judgment ſhall be, That the Guardian in Chivalry ſhall retain the Land holden of him, quit from〈◊〉36woman during the nonage of the Ward; after which Judgment and Sentence given, ſhe may go, and in the preſence of her neighbours endow her ſelf of the beſt part of that which is in her cuſtody, amounting to the third part of the whole; and then is ſhe called Tenant in Dower de la plus beale.
Finally ye ſhall underſtand,An. 27. H. 8. That by a Statute made in the 27. year of our moſt dread Soveraign Lord King Henry the Eight, it is enacted, That where divers Perſons have Eſtates made to them and to their Wives, and to the Heirs of the Husband, or to the Huſband and Wife, and the Heirs of their two bodies begotten, or the Heirs of one of their bodies, or for terme of both or one of their lives, or any other Perſons and their Heirs, to the uſe of the Husbrnd and Wife, or to the Wife alone for her Joynture, in every ſuch caſe the Woman ſhall not be ſuffered to demand any Dowrie of the reſidue of her Husbands Lands of whom ſhe hath Joynture againſt any Tenant of the Land; but in caſe ſhe hath no ſuch Joynture, then may ſhe demand her••wrie, after the courſe of the Common37 Law: Provided nevertheleſs, that if ſuch Women be lawfully expulſed from their Joynture, or any part thereof, without fraud or covin, then ſhall they be endowed of the reſidue of their Husbands Lands, for as much as the Lands ſhall amount unto, out of which they were ſo expulſed and put forth.
Provided alſo, That if Lands or Tenements be aſſured to any Woman after marriage, for terme of life, or likewiſe in Joynture (except it be by Act of Parliament) and the Wife over-live her her Husband in whoſe time the Joynture was made, in this caſe the Wife may refuſe the Lands ſo appointed unto her in Joynture, and have her Dower at the Common Law, of ſuch Lands as her Husband was ſeized of at any time during the coverture.
Alſo if the Husband committeth Treaſon, Murder or Felony, for which he is attainted, the Wife ſhall not have her Dower.
And note, That if the Husband enter into Religion and is profeſſed, the Heir ſhall enter into the Land, but the Wife getteth no Dower till the Husband dieth. M. 32. E. 2.
38And likewiſe if a man ſeized of Land, taketh a Wife that is an Alien born and dieth, ſhe ſhall not be endowed, except ſhe be made Denizon by Act of Parliament, T. 3. H. 6. And note, That where the Wife bringeth a Writ of Dower and recovereth her right, ſhe ſhall recover no damages, but where her husband died ſeized of the Lands recovered.
HItherto have I ſpoken of Free-holds,Damages. now it remaineth to treat of Inheritances; not the Inheritances that be no Free-holds, for they be Free-holds alſo; but the other Eſtates of which I have hitherto treated, be only Free-holds and of no higher nature; whereas an Eſtate of Inheritance, although it be a Free hold indeed, yet it is not to be called by name, ſith it is after more excellent and greater Eſtate: but ye ſhall underſtand, that of Inheritances39 ſome be of more amplitude and excellent then other ſome be, as that Inheritance which is pure ſimple and without limitation of what Heirs, which kinde of Inheritance is called fee-ſimple: but when I make a limitation of what Heirs, then it is called fee-tayle; and of which alſo be two ſorts, as hereafter more at large ſhall be declared: now therefore the nature of fee-ſimple is ſet forth with our accuſtomed compendiouſneſs.
FEe-ſimple is (as I ſaid) the moſt ample and large Inheritance that can be in this Realm deviſed or invented:Fee-ſimple. it is that which a man hath to him and his Heirs, ſimple without any further limitation: for whether they be of his own body begotten or not, ſo that they be the next of his kinne and within the degrees it ſufficeth.
So then, Tenant in fee-ſimple is he40 that hath Lands or Tenements, whether it be by purchaſe, or by deſcent to him and to his Heirs and Aſſigns for ever: for if a man will purchaſe Lands in fee-ſimple, he muſt needs have theſe words his Heirs in his purchaſe, for theſe be the only words that make the Eſtate of Inheritance. Therefore if Lands be given to a man for ever, and no mention be made of his Heirs, he hath an Eſtate but for terme of his life, becauſe theſe words his Heirs do lack.
Yet nevertheleſs if a man by his Teſtament doth deviſe Lands to another, in ſuch place or caſe where the cuſtom or Law will ſerve ſo to do, although he make no mention of Heirs, but ſaith, that he bequeaths to ſuch a perſon ſuch Lands, to have and to hold to him and to his Aſſignes for evermore, here an Eſtate of Inheritance doth paſſe; for in Teſtaments the will and intent of the Teſtator is to be pondered, and not the formall and preſcript words of the Law.
Alſo theſe termes in the Law, frank-marriage, and frank almoigne, that is to ſay, free marriage and free alms, do include in the words of Inheritance.
41And therefore if I give Lands to a man with my Daughter in frank marriage, without further addition or mention of Heirs, this is an eſtate of Inheritance, as ſhall be declared hereafter more plenteouſly. So likewiſe it is of Lands given to an Houſe Eccleſiaſticall in pure and frank alms. Moreover if Land be given to a man and to his blood, or unto him and to his ſeed, he hath in both caſes an eſtate of Inheritance; for in the laſt he hath a fee-tayl, and in the other a fee-ſimple; for theſe words ſeed and blood, and ſuch like, do imply words of Inheritance.
Alſo if Lands be given to a man, and and to his Heirs males or females, he hath by this gift a fee-ſimple, becauſe it is not expreſſed of what body the Iſſue ſhall come.
But now it is to be ſeen,The half-blood. who be ſaid to be a mans Heirs in the Law: ye ſhall therefore know, that my Brother or Siſter by the half-blood, that is to wit by the Fathers ſide and not by the Mothers, or contrariwiſe by the Mothers ſide and not by the Fathers, ſhall never be mine Heir,A Baſtard ſhall be no Heir. nor none that come of them: neither my baſtard can be mine42 Heir, nor mine own naturall Father nor Mother, nor Grandfather nor Grandmother, can be mine Heir; for it is a principle and ground of the Law,A ground of the Law. That Inheritance may lineally deſcend, but aſcend it cannot; and therefore if I have Lands in fee-ſimple, and die without Iſſue of my blood, my Father cannot be my Heir, but my Fathers Brother or Siſter ſhall; and then if my Unkle or Aunt die ſeized without Iſſue, my Father ſhall have the Lands as Heir to mine Unkle and not as Heir to me, for that cannot be; but it may go from me to my Unkle or Aunt well enough, for that is not called a lineall aſcention, but a collaterall deſcent.
Alſo ye ſhall underſtand,Lineall and Collaterall deſcent. That a lineall deſcent is, when the deſcent is conveyed in the ſame line of the whole blood, as Grandfather, Father and Sonne, and ſo down; and collaterall deſcent is of another branch from above of the whole blood, as the Grandfathers Brother, or Fathers Brother, and ſo deſcending.
And ye ſhall alſo note, That by the Common Law of this Realm, the eldeſt Sonne ſhall have the whole Inheritance, and after him (if he have no Iſſue) the43 ſecond Sonne, and ſo forth: and if I have no Sonnes but Daughters, then ſhall all the Daughters together inherit, which be called Coparteners. Copartners.But if I have no Iſſue at all, neither Sonnes nor Daughters, then ſhall my eldeſt Brother in heritage ſucceed me: but if I have no Brother, then my Siſters, if I have any; if not, my Unkle by my Fathers ſide, if the Lands be of mine own purchaſing, or if they deſcended unto me from my Father: and to be ſhort, if there be none in life of my Fathers ſide, the purchaſed Land ſhall go to my Mothers ſide: and if there can be found no Heir neither by my Fathers ſide nor yet by my Mothers, then ſhall it Eſcheat,Eſcheat. as they call it, to the Lord of whom it was holden; for every Land muſt needs be holden of ſome Lord, as ſhall be hereafter ſhewed. But if Lands deſcend unto me by my Mothers ſide, then if I fail of Iſſue, the Lands ſhall deſcend only to my Heirs of my Mothers ſide, and never to mine Heirs of my Fathers ſide: as on the contrary ſide, if I have Lands or any Tenements by deſcent from my Father or his blood, they ſhall never deſcend to my Heirs by my Mothers ſide.
44And thus you ſee a great difference in this behalf,Diverſitie. between purchaſed Land, and Lands which deſcend from an Anceſtour.
If there be three Sonnes, and the middle Sonne purchaſe Lands, and die without Iſſue, the eldeſt ſhall have the Lands and not the youngeſt.
And it is a principle in our Law,A ground of the Law. That none can be mine Heir of Lands that I hold in the Fee-ſimple, unleſs he be mine Heir by the whole blood, that is to ſay both by Father and Mother; for if a man have Iſſue two or three Sonnes by ſundry Wives, and the eldeſt purchaſeth Lands in fee and dieth without Iſſue, his half brethren (I mean theſe that be not his Brethren both by the Fathers ſide and Mothers ſide, ſhall not have his Land, but it ſhall go to his Unkle: Likewiſe if a man hath by his firſt Wife a Sonne and a Daughter, and by his ſecond Wife another Sonne, and the Sonne by the firſt Wife purchaſeth Lands in fee-ſimple, and dieth without Iſſue, the Siſter-germaine, that is to ſay, both by the Fathers ſide and Mothers, ſhall have the Lands by deſcent, as Heir to her Brother, and not the younger45 Brother, for as much as the younger Brother cannot in this caſe be Heir of his elder Brother, becauſe he is no Brother-germane unto him: Otherwiſe it is of Lands or other hereditaments entailed, as ſhall be hereafter ſpecified.
Alſo if a man be ſeized of Lands in fee-ſimple, and hath Iſſue a Sonne and a Daughter by one Wife, and after the death of his firſt Wife a Sonne by another Wife, and dieth, and the eldeſt Sonne entreth into the Lands, and after he dieth without lawfull Iſſue of his body, the Daughter ſhall have the Lands, and not the youngeſt Sonne, and yet the youngeſt Sonne is Heir to his Father, but he is not ſo unto his Brother. But in this caſe if the eldeſt Sonne hath not entred after the death of his Father, but had died before any entrie made by him, then ſhall not the Siſter-germaine enter, but the younger Brother is Heir to his Father, becauſe the eldeſt Brother was never in actuall poſſeſſion, which is requiſite to the perſon that claimeth to be Heir collaterally.
But to the lineall Heirs it ſufficeth that the Anceſtour ſhould have been Heir if he had lived; I mean as thus: a46 man ſeized of Lands, and hath Iſſue a Sonne and a Daughter by one Wife, and afterwards a Sonne by another, he dieth, and after his death the eldeſt Sonne entreth not but dieth without Iſſue, before he can make actuall entrie, here in this caſe his Siſter ſhall not have the Lands as Heir to her Brother, becauſe her Brother was not in actuall poſſeſſion, but the younger Brother ſhall have them as Heir to his Father: yet if the eldeſt Sonne in that caſe had left behind him Iſſue of his body, whether it had been Sonne or Daughter, this Iſſue, notwithſtanding that the Father of the Iſſue was never poſſeſſed, either actually or in the Law, ſhall have the Lands, and ſhall convey his deſcent from his Father; the cauſe hereof is this, that the Sonne or Daughter is lineall Heir, whereas the Brother, Siſter, Unkle, Aunt, &c. be Heirs collaterall, and ſo ye ſhall obſerve a diverſity. Diverſitie.
I call an actuall poſſeſſion when a man entreth indeed into Lands which be to him deſcended, but a poſſeſſion in Law is called, when Lands be deſcended to a perſon, and he hath not yet really and actually entred into them; for notwithſtanding47 that he is not in actuall poſſeſſion, yet he is poſſeſſed in the Law, that is to ſay,Haereditae quid ſit. in the eye and conſideration of the Law, he is deemed to be poſſeſſed, for as much as he is Tenant for every mans Action that will ſue for the ſaid Lands, or elſe aſſuredly there ſhould enſue an intollerable inconvenience, as we ſhall more copiouſly open in another place. Ye ſhall furthermore underſtand, that this word Inheritance is not only to be accommodate and applied to that which cometh by deſcent or ſucceſſion from a mans anceſtors or predeceſſors, but alſo to every purchaſe in fee-ſimple or fee-tayle.
And note, That a man can have no larger or greater eſtate then fee-ſimple.
YE ſhall underſtand, that before a certain Statute called the Statute of Weſt. ſecond,Weſt. 2. Chap. 1. there was no eſtate tayle, but all was fee-ſimple, either purely48 that is to ſay without condition, or at the leaſt way conditionally,Diviſion. as appeareth by the preſence of the ſaid Eſtatute, but now ſithence the promulgation of the Eſtatute, divers forms of Eſtates Tayle have riſen.
Fee-tayle is, when it is preſcribed and limited in the gift, what ſort of Heirs and by whom engendred ſhall inherit.
As for example, I give Lands to a man and to his Heirs, and go no further, this is a fee-ſimple; but if I make a limitation, and adde of his body begotten, now it is a fee-tayle, that is to ſay, a fee or Inheritance limited, preſcribed, determinate or aſſigned.
So that if I give Lands to a man and to his Heirs, he hath fee-ſimple, but if I give Lands to him, and to his Heirs of his body lawfully begotten, he hath but a fee-tayle, foraſmuch as I appoint, limit, preſcribe and expreſs, what Heirs they ſhall be, and for lack of ſuch Heirs, the gift ſhall be expired and worn out, and the Land ſhall be reverted again to the giver or his Heirs.
But ye muſt obſerve and Note, That there be two kinds of fee-tayle, there is a generall tayle and there is a ſpeciall tayle.
49Fee-taile generall is, where Lands be given to a man and to his Heirs of his body begotten, without any mentioning and expreſſing by what woman they are begotten.
And therefore if a man be Tenant in the generall tayle of Lands,Generall taile. and taketh a wife and hath Iſſue by her and ſhe dieth, and afterwards he taketh another wife, of whom he hath alſo other Iſſue by her, either of theſe Iſſues is inheritable to this Land entayled. But if I expreſs in the gift, by what woman the Heirs ſhall be procreated and ingendered, then it is an eſpeciall tayle: as for example, to make the thing plain;Eſpeciall taile. If Lands be given to a man, and to his Heirs of his body lawfully begotten by Margaret his wife, this is an eſpeciall tayle, for the Iſſue of him begotten by another woman ſhall never inherit by force and vertue of the tayle: Likewiſe it is if Lands be given to a woman, and to the Heirs of her body lawfully begotten (and ſhew not by what man) this is a generall tayle; but if I go forward and ſay by ſuch a man her husband, then it is an eſpeciall tayle.
Alſo if I give Lands to a man and to50 his wife, and to the Heirs of their two bodies lawfully begotten, this is an eſpeciall tayle as well in the husband as in the wife.
Semblable it is if a man giveth Lands to another man with his Daughter or Kinſwoman in frank marriage,Frank-marriage. this word (frank marriage) implieth an eſtate tayle ſpeciall, and in this caſe as well the man as the woman hath an an eſtate in the ſpeciall tayle.
But if I give Lands to a man and to ſuch a woman, and to his Heirs that he hath begot of her, here the woman hath an eſtate but for terme of her life, and the Husband an eſtate in the eſpeciall tayle; and likewiſe it is in the womans behalf, as if I give Land to a man and to his wife, and to her Heirs of her body by her ſaid Husband engendred, he hath an eſtate but for terme of life, and ſhe an eſtate in the ſpeciall tayle; but in both caſes, if I had ſaid to the Heirs, and not to his or her Heirs, then ſhould either of them have had an eſtate in the ſpeciall tayle, becauſe this word Heirs, is as well referred to the one as to the other.
Ye ſhall alſo underſtand, That if51 Lands be given to a man,Deſcent by Heir males. and to the Heirs males of his body, this is an eſtate tayle, and in this caſe the Heir female ſhall never inherit.
Alſo if a man hath Iſſue and dieth, and Lands be given to him and to his Heirs of his body begotten, this is a good eſtate tayle, although the father were dead at the time of the gift. Finally it is to be noted, that of Lands which a man hath in fee-ſimple, the poſſeſſion of the Brother ſhall cauſe the Siſter-germaine, that is to ſay, the Siſter both by Fathers ſide and Mothers to inherit; and in this caſe the Brother by the half-blood ſhall not inherit, as heretofore was ſaid, but of Lands which be entailed: Otherwiſe it is therefore if a man be ſeized of Lands in the generall tayle, and hath iſſue by his firſt wife a Sonne and a Daughter, and alſo a Sonne afterwards by another wife and dieth, and the eldeſt Sonne entreth into the Lands and after dieth, the Siſter-germaine to the eldeſt Sonne ſhall not have the Land, but the younger Brother of the half-blood, becauſe whoſoever ſhall inherit Land or any other hereditaments in tayle, muſt claim them as next and immediate52 Heir, not to him that dieth laſt ſeized of the Lands, but to him to whom the Lands were firſt given unto, whom in the caſe before remembred, is the Sonne and Heir, and not the Daughter.
Thus ye ſhall mark a great diverſity between the form of ſucceſſion in the Lands of fee-ſimple,Diverſitie. and the form in fee-tayle.
WHen Lands, Tenements or other Hereditaments be given to a man and to his wife, and to the Heirs of their two bodies lawfully begotten, if in this caſe either of them chance to die before they have Iſſue between them,Diſpuniſhable of waſte. he or ſhe that overliveth is ſtill Tenant in tayle, but without poſſibility of any Iſſue that can be Heir to theſe Lands or hereditaments thus entayled, and for this cauſe he or ſhe thus overliving, is called Tenant in Tayl after53 poſſibility of Iſſue extinct, for in ſuch a Tenant is all poſſibility of Iſſue that may be inheritable to theſe Lands by force of the gift in tayle utterly extinct or quenched, and by his or her death, the eſtate tayle ſhall expire, ceaſe and be aboliſhed for ever, and ſhall revert and turn again to the giver or donor from whence it came.
Yet foraſmuch as the Tenant after poſſibility of Iſſue had once an Inheritance in him, he ſhall not be puniſhed by an Action of Waſte, though he make never ſo much waſte in the Lands and Tenements, whereas yet in effect he is but a Tenant for terme of life. But if this Tenant doth alien in fee ſuch Lands, he in the reverſion may enter for the forfeiture.
And this for Eſtates at this preſent time ſhall ſuffice:Forfeiture. but to the intent that ye may the more eaſily comprehend all the members of the diviſion of Poſſeſſions and Eſtates, which men have in Lands, Tenements and other Hereditaments, it ſhall not be evill done, to ſet forth as it were in a Table before your eyes the diviſion thereof, which is this:
54HItherunto I have made a compendious and ſhort declaration of Eſtates of all ſorts: but where I ſaid that among Siſters there is no prerogative or preheminence concerning the inheriting of their Anceſtors Lands, but that they ſhall be all together inheritours, and make as it were but one Heir; it is expedient to make a further declaration and proceſs in this behalf, and to ſhew how and in what manner this partition ſhall be made.
But ye ſhall underſtand,Diviſion of Parceners at the Common Law and Parceners by Cuſtome. That there be beſides Parceners at the Common Law which be only Siſters, alſo Parceners by Cuſtome which is amongſt Brothers, contrary to the courſe of the Common Law, and this cuſtome is in ſome places of Rent, and in other places where Lands and Tenements, be of the tenure of Gavelkind.
Ye ſhall therefore kow, That when a man is ſeized of Land in fee-ſimple or56 fee tayle, and hath no iſſue but Daughters, and die, and the Daughters do enter into the Lands thus deſcended unto them, now they be called Parceners or Co-heirs,Writ de partione facienda. and by a Writ called de partitione facienda, brought by one of them againſt the others, they ſhall be conſtrained by the Law to ſuffer an equall partition to be made of the Lands between them.
Now partition may be made in ſundry wayes; one way is, when they themſelves do make partition between them of the whole heritage, and do agree unto the ſame, and do enter every one into her part ſo allotted unto her.
Another way is,Partition in divers manners. when by all their agreements and conſent, one common friend doth make the partition, in which caſe the eldeſt Siſter ſhall have the firſt election, and after her the ſecond Siſter and ſo forth; but if they agree that the eldeſt Siſter ſhall make the partition, and ſhe maketh it, then the eldeſt ſhall not chooſe firſt, but ſhall ſuffer all her Siſters to chooſe before her, as it is thought.
There is alſo another form of partition, which is, equally to divide the Lands into ſo many parts as there are57 Co-heirs or Parceners, and to write every part ſo divided in a ſeverall ſcroule of paper, and ſo put the ſaid ſcroules in a bonet, or to incloſe them ſeverally in balls of wax, and then the eldeſt Siſter to chooſe which ball ſhe will, or to put her hand into the bonet and take a ſcroule, and to hould her to her chance and allotment, and ſo conſequently every Siſter after other.
And ye ſhall note,Nota. That Partition by agreement may as well be made by nude and bare words without writing as by writing.
And if any of the Parceners will not ſuffer any partition to be made, then may the other that would have partition,A writ de partritone facienda. purchaſe a Writ called De partitione facienda, againſt them that refuſe partition, to compell the ſame to ſuffer partition to be made accordingly, and then by the judgment of the Court, the Sheriff by the ſerement and Oath of twelve men ſhall make partition between them, and ſhall aſſign to each Siſter her portion as he ſhall think good, without giving any election of choice to the eldeſt.
And if two Mannors or Meaſes happen58 to deſcend to two Siſters, and the Mannors be not of equall value, then may ſhe to whom the leſs Mannor or Meaſe is allotted, have aſſigned unto her a Rent proportionably out of the other Mannor; for the which Rent, ſhe and her Heirs may diſtrain of common right, though they have no writing thereof.
Finally ye ſhall underſtand,Diſtreſs of Common Right. That if a man be ſeized of Lands in fee-ſimple, and hath Iſſue two Daughters, and giveth with one of his Daughters to another man that ſhall marry her, the third or fourth part of his Land in frank-marriage, and dieth; if in this caſe the Daughter that is in this wiſe beſtowed and advanced, will have her portion of her fathers heritage, ſhe muſt put her Land given unto her in frank-marriage in hochpot new again,Hochpot. I mean ſhe muſt be contented to ſuffer her ſaid Lands to be commixed and mingled with the other Lands of which her Father died ſeized in fee-ſimple, ſo that an equall diviſion may be made of the whole, or or elſe ſhe ſhall have no part of thoſe Lands of which her Father died ſeized; but if her Father had made unto her a59 common gift in tayl or feofment in fee, ſhe ſhould not need to put her Lands in hochpot, but may very well keep and retain them ſtill, and alſo have as good part of the reſt of the Lands of which her Father died ſeized, as her other ſiſter or Siſters have,Frank-marriage. for a gift in frank-marriage is accounted the moſt free and moſt liberall gift that can be, and that gift which the Law judgeth to be only for the advancement and beſtowing of the Daughter; whereas feofments in fee-ſimple, and alſo common gifts in tayle, be accuſtomarily for other cauſes, and for the advantage rather of the giver or feoffer then of the taker.
And if Parceners make partition of Lands being within age, that partition is void.
And if Parceners in fee-ſimple make partition, and the part of the one is better then the other, being of full age of 21. years, then the partition is good and cannot be defeated; but if it be of Lands in fee-tayle, the one part being better then the other, that partition may be defeated by their Heirs.
HItherunto briefly have we ſpoken of Coheirs, called Parceners of the the Common Law, which as is heretofore declared, do come to Lands and other hereditaments joyntly by the courſe, operation and act of the Law. Now ſhall we ſpeak ſomewhat of them that either joyntly or ſeverally come to Lands, Tenements or other Hereditaments, by their own purchaſe, act, procurement and working; and of theſe they that come to them by joynt title way or colour, be called joyntenants, but they that come by ſeverall titles, wayes or colours, to Lands or Tenements, be named Tenants in common.
So then if a man being ſeized of Lands or Tenements,Tenants in common. or other Hereditaments, ſhall thereof enfeoff two, three, four or more, to have and to hold to them in fee-ſimple, fee-tayle, or for terme of their lives, or for terme of anothers life, theſe perſons ſo enfeoffed and ſeized, be61 called Joyntenants alſo; alſo if two or more do expell and diſſeize another man of any Lands or Tenements, to their own behoof and uſe, theſe diſſeizors and wrong doers, are now become Joyntenants, becauſe by their own act they come joyntly to this Land; but if they do diſſeize another man to the uſe only of one of them, in this caſe they be not Joyntenants, but he to whoſe uſe the diſſeizin is made, is Tenant alone of the ſame, and the others have nothing in the tenancy, but be called aydours or coadjutors to the diſſeizin.
And ye ſhall underſtand,Diſſeiſin. Survivour taketh place. That a Diſſeizin is properly where a man entreth into any Lands or Tenements there where his entry is not lawfull, and putteth out him which hath the freehold of the ſame.
And ye ſhall further know, That the nature of Joyntenancy is, that he which ſurviveth and overliveth the other, ſhall have to himſelf alone the whole and entire tenancie, according to that eſtate which he ſhould have had if the joynture had been continued: as for example, three Joyntenants be of Lands in fee-ſimple, and the one half hath Iſſue and62 die, in this caſe the two which do overlive their fellow, ſhall have the whole Lands between them, and the Iſſue of him that is departed getteth nothing; and if the ſecond Joyntenant hath Iſſue alſo and die, the third which hath overlived them both, ſhall now have and enjoy the whole to him and to his Heirs for evermore.
But otherwiſe it is of Coheirs,Diverſitie. which in our Law are called Parceners; for if there be three ſuch Coheirs and Parceners, and before any partition made, the one have Iſſue a Sonne or a Daughter and dieth, her portion ſhall deſcend and fall to his child, and ſhall not runne amongſt the other joynt-heirs or Coparceners; howbeit if ſuch Parcener or Coheir had died without Iſſue, then ſhould his portion have deſcended to his Coheirs; but how? not by force of ſurviver or overliving, which in Latine is ealled jus acreſcendi, but by very deſcent; for where any of the Coheirs die without Iſſue, who can be Heir to him or her ſo dying, but the other Coheirs to him or her ſo dying, or the reſt of the Coheirs if there be many?
And like as this right of ſurvivor or63 overliving holdeth place amongſt Joyntenants of Lands and Tenements, ſo in like manner it holdeth place amongſt them which have joynt eſtate or poſſeſſion with others, of Chattels whether they be reall or perſonall; as (for example) if a Leaſe of Lands or Tenements be made to many for terme of certain years, the overliver or overlivers ſhall have the whole during the terme by force of the ſame Leaſe;Joyntenants of reall and perſonall goods. ſo of Chattels perſonall; if an Horſe, Oxe, grain or other ſuch perſonall Chattell be given to many, he which overliveth ſhall have the ſame alone; in ſemblable wiſe it is of Debts and duties; for if an Obligation be made to many for one debt, and of ſome other Covenants and Contracts the Law is likewiſe ſo.
Alſo ſome Joyntenants may be which may have joynt eſtate and be Joyntenants for terme of their lives,Joyntenants of ſeverall Inheritances. and yet have ſeverall Inheritances; as where Lands be given to two men, and to the Heirs of their two bodies engendred, in this caſe theſe two perſons have joynt eſtate for terme of their two lives, and yet they have ſeverall Inheritance; for if the one have Iſſue and die, the other64 that ſurviveth ſhall have all by force of the ſurvivour for terme of his life, and if he that ſurviveth hath alſo Iſſue and die, then the Iſſue of the one ſhall have the half of the Lands, and the Iſſue of the other ſhall have the other half, and they ſhall hold the Land between them in common, and ſhall not be Joyntenants but Tenants in common;Tenants in common. and the cauſe and reaſon why ſuch Donees in ſuch caſes have a joynt eſtate for terme of their lives is, for that at the begining the Lands were given to them two; which words without more ſaying, make a joynt eſtate to them for terme of their lives; for if a man will let Land to another by Deed or without Deed, not making mention what eſtate he hath, and of this maketh livery of ſeiſin, in this caſe the Leſſee ſhall have an eſtate for terme of his life; and if he have no livery of ſeiſin, he is Tenant at will, and ſo foraſmuch as the Lands were given unto them, they have a joynt eſtate for terme of their lives; but the cauſe why they have ſeverall Inheritance is this, for that they cannot by poſſibility have an Heir between them engendred as a man and a woman may have; wherefore the65 Law will that their eſtate and their Inheritance ſhall be ſuch, as reaſon will after the form and effect of the words of the gift, and that is to the Heirs that the one engendred of his body by and of his Wives, and to the Heirs that the other engendreth of his body by any of his Wives; ſo it behoveth by neceſſity of reaſon, that they have ſeverall Inheritances; and in ſuch caſe, if the Iſſue of one of them after the death of them both doth die, ſo that he hath no Iſſue alive of his body engendred, then the Donor which gave the Land, or his Heirs may enter in the half as in his reverſion, though the other hath Iſſue alive; and the cauſe is, that foraſmuch as the Inheritances be ſeverall, therefore the reverſion in the Law is ſevered, and the ſurvivour of the Iſſue of the other ſhall hold no place to have the whole; and as it is ſaid of Males in the ſame manner, it is where Lands, be given to two Females, and to the Heirs of their two bodies begotten.
Alſo if Lands be given to two,Survivor holdeth no place. and to the Heirs of one of them; this is a good contenancy, and the one hath a freehold, and the other hath a fee-ſimple,66 and if he which hath fee-ſimple die, he that hath the free-hold ſhall have the whole by the Survivor for term of his life.
And if theſe two Joyntenants, joyn in a gift in the tayle to a ſtranger, reſerving a Rent to him that hath an eſtate but for his life; this reſervation is void to make a Tenure: likewiſe it is where Tenements be given to two, and the Heirs of the body of one of them engendred, the one hath a free-hold, and the other fee-tayle.
Note,Rent-charge granted by a joyntenant. If two Joyntenants be ſeized of an eſtate of fee-ſimple, and the one granteth a Rent-charge by his deed to another, out of that which to him belongeth, in this caſe during the life of the graunter, the Rent-charge is good and effectuall; but after his deceaſe, the Rent-charge is void, as to charge the Lands, for he that hath the Land by the Survivour, ſhall hold all the Land diſcharged; the cauſe is, for that he that ſurveieth claimeth to have the Land by the Surviour and not by diſcent of his fellow,Diverſitie. but otherwiſe it is of Parcener or Co-heirs, for if there be two Parceners in fee-ſimple, and before any partition67 be made, the one chargeth that that to him belongeth by his deed of a Rent-charge and dieth without Iſſue, here that which to him belongeth deſcendeth to the other Parcener; and in this caſe the other Parcener ſhall hold the Land charged, becauſe he cometh to the half by deſcent as heir. Alſo if there be two Joyntenants in fee-ſimple within one Borough, where the Lands and Tenements within the ſame Borough be deviſable by Teſtament, If the one of the ſaid Joyntenants deviſe that which to him belongeth by Teſtament and die,Diviſe by Teſtament. this deviſe and legation is void And the cauſe is, for that no deviſe may take effect till after the death of the Teſtator which bequeathed and deviſed the ſame, and by his death all the Land incontinent cometh by the Law to his fellow that Surviveth by the Survivor, which neither claimeth nor hath any thing in the Land by the deviſe, but in his own right by the Survivor after the courſe of the Law, and for this cauſe ſuch a deviſe is void.
But otherwiſe it is of Parceners,A ground of the Law. ſeized of Tenements deviſable in ſuch caſe of deviſe for the cauſe above remembred;68 and it is commonly ſaid that every Joyntenant is ſeized of the Land that he holdeth joyntly, per my et per tont; that is, throughout, and by all, and this is as much to ſay, that he is ſeized by every parcell, and by all, which ſaying is true, for in every parcell and part, and throughout all the Lands and Tenements, he is joyntly ſeized with his fellow, and therefore if the one Joyntenant make a Feofment to his companion that is void, becauſe he can make no Livery of ſeizin to him. Diverſity.Alſo if two joyntenants be ſeized of certain Lands in fee-ſimple, and the one letteth that that to him belongeth to a ſtranger for the term of Fourty years, and dyeth within the term, in this caſe, after his death the Leſſee may enter and ocupy the half to him letten, during the ſaid Term, though the Leſſee never had poſſeſſion of it in the life of the Leſſour by force of the Leaſe,Diverſity between a grant of a Rent and Leaſe. and the difference between the caſe of the grant of a Rent-charge and this caſe is this, that in the grant of Rent-charge by a joyntenant, the Lands or Tenements abide alway as they were afore, without that that any hath right to have parcell of the Tenements69 but themſelves, and the Tenements abide in ſuch pitty as they were before the Charge; but where a Leaſe is made by a Joyntenant to another for term of years incontinent by force of the Leaſe, the Leſſee hath right in the ſame Land; that is to ſay, of all that that to his Leſſour belongeth by force of the ſame Leaſe during his term, and if the Leſſor in this caſe die, the other joyntenant ſhall have the Rent or Term during the ſaid Term, becauſe the reverſion is come to him by Survivor. Finally, if a joynt eſtate be made of Land to the Husband and Wife, and to the third perſon in this caſe, the Husband and the Wife have not in the Law in their right but the half, and the third perſon ſhall have as much as the Huſband, and the Wife have, that is to ſay, the other half; and the cauſe is, for that the Husband and Wife be but as one perſon in the eye of the Law, and it is here in like caſe, as if an eſtate be made to two joynt-Tenants, where the one hath by force of the Joynture, the one half, and the other the other half: in ſemblable wiſe, it is where an eſtate is made to the Husband and Wife, and to70 other two men, in this caſe the Huſband and the Wife have not but the third part, and the other two men the other two parts.
Alſo if two or three together diſſeiſeth another of Lands and Tenements to their own uſes, then ſuch diſſeiſors be called Joyntenants.
More ſhall be ſaid of this matter, touching Joyntenants in the next Chapter.
TEnants is Common, (as I ſaid before) be they that have Lands or Tenements in fee-ſimple, fee-tayle, or for term of life, which have ſuch Lands and Tenements by ſeverall Titles, and not by one joynt Title, and none of them knoweth that which is ſeverall to him, and in this caſe they ought by the Law, before partition made between them, to occupy ſuch Lands and Tenements in common and undevided, and to71 take the profits in Common; and becauſe they come to ſuch Lands and Tenements by ſeverall Titles, and not by one ſelf joynt Title, and their ocupation and poſſeſſion in the ſame is among them in Common, they be called Tenants in Common, or Tenants pro indiviſo; as for example, If a man Enfeoff two Joyntenants in fee-ſimple, and the one of them alieneth that that to him belongeth to another in fee, now the other Joyntenant and he to whom the Alienation was made, be Tenants in Common, for that they be ſeized of ſuch Tenements by ſeverall Titles, for the one cometh to the one half by the Feoffment of the Joyntenant, and the other hath the other half, by force of the firſt Feoffment made to him, and to his firſt fellow, and ſo they be in by ſeverall Titles, and by ſeverall Feofments.
And it is to wit,Diffinition of fee only. that when it is ſaid in any Book that a man is ſeized in fee, without more ſaying or addition, it ſhall be underſtood fee-ſimple, for it ſhall not be underſtood by ſuch a word in fee, that a man is ſeized in fee-tayle, except there be put in it ſuch addition in tayle.
72Alſo if three joyntenants be,Joyntenants. and the one of them alieneth that which unto him belongeth to another in fee, in this caſe the alience is Tenant in Common, with the other two Joyntenants. But yet the other two Joyntenants be ſeized of the two parts Joyntly, and of theſe two parts the Survivor between them holdeth place.
Alſo if there be two Joyntenants in fee, and the one giveth that that unto him belongeth to another in the tayle, the Donee and the other Joyntenant be Tenants in Common, but if the Lands be given to two men, and to the Heirs of their two bodies engendred, the Donees have a joynt eſtate for term of their lives, and if each of them have Iſſue and dye, their Iſſues ſhall hold in Common.
Alſo if Lands be given to two men, to have and to hold the one half to the one and to his Heirs, and the other half to the other and to his Heirs they be Tenants in Common.
Alſo if a man ſeized of certain Lands, enfeoffeth another in the half of the ſame Land, without any ſpeech of aſſignement or limitation of the ſame,73 half in ſeveralty at the time of the Feofment, then the Feoffee and the Feoffour ſhall hold their parts of the Land in Common.
And as it is of Tenants in Common, of Lands or Tenements in fee-ſimple, fee-tayle; even ſo it is of Tenant for term of life. Therefore if two joyntenants be in fee,Joyntenants. and the one letteth to a man that that unto him belongeth, for term of life, and the other Joyntenant letteth that which to him belongeth to another for terme of life alſo; theſe two Leſſees be Tenants in common for terme of their lives. Alſo if a man let Lands to two men for terme of life, and he to whom the one granteth all his eſtate to another, then that other Tenant for terme of life, and he to whom the grant is made, ſhall be Tenants in common during the time that both the Leſſees be alive.
Note, If there be two Joyntenants in fee, and that one letteth that that unto him belongeth to another for terme of life, the Tenant for terme of life, during his life, and the other Tenant that did not let be Tenants in common. And upon this Caſe a Queſtion may ariſe, as74 thus; Let the Caſe be that the Leſſour hath Iſſue and dieth, living the other Joyntenant his fellow, and living the Tenant for terme of life, the Queſtion is,Queſtion. Whether the Reverſion of the half that the Leſſour hath ſhall deſcend to the Iſſue of the Leſſour, or whether the other Joyntenant ſhall have it by the ſurvivour or no? And ſome have ſaid that the other Joyntenant ſhall have the Reverſion by the ſurvivour, foraſmuch as when the Joyntenants were joyntly ſeized in fee-ſimple, though one of them made an eſtate of that that unto him belongeth for terme of life, and though he hath ſevered the frank-tenement of that that to him belongeth by the Leaſe, yet he hath not ſevered the fee-ſimple. But the fee-ſimple abideth to them joyntly as it was before, and ſo it ſeemeth unto them that the other Joyntenant which ſurviveth, ſhall have the Reverſion by the ſurvivour: But other have thought the contrary, and this is their reaſon; when one of the Joyntenants letteth that which unto him belongeth to another for terme of life, by ſuch Leaſe the Franktenement is ſevered from the Joynture, ſo that the reverſion75 that is dependant upon the ſame Frank-tenement is ſevered from the Joynture: furthermore if the Leſſour had reſerved to him a yearly Rent upon the Leaſe, the Leſſour only ſhould have the Rent, which is a proof that the reverſion is only in him, and that the other hath nothing therein.
Alſo if the Tenant for life were impleaded and make default after default,Recie. the Leſſour ſhall be only hereupon received to defend his right, and not his fellow; which proveth the reverſion of the half to be only in the Leſſour; and ſo conſequently if the Leſſour die, living the Leſſee for terme of life, the reverſion ſhall deſcend to the Heirs of the Leſſour, and ſhall not come to the other Joyntenant by the ſurvivour after theſe mens opinions, yet it is doubtfull. But in this caſe,Quere. if the Joyntenant that hath the franktenement have Iſſue and die, living the Leſſour and the Leſſee, then it ſeemeth that the Iſſue ſhall have the half in his demeſne as of fee by deſcent, foraſmuch as the franktenement may not by nature of the Joynture be annexed to a reverſion; and it is certain, that he that made the Leaſe, was ſeized76 of the half in his demeſne as of fee, and that none ſhall have any Joynture in his franktenement, ſo that this ſhall deſcend to his Iſſue.
If three Joyntenants be, and the one releaſeth by his Deed to one of his fellows, all the right he hath in the Land,Releaſe. then hath he to whom the Releaſe is made the third part of the Lands by force of the Releaſe, and he and his fellow ſhall hold the other two parts joyntly; and as to the third part that he hath by force of the Releaſe, he holdeth it with himſelf and his fellow in common.
And it is to wit that ſometime a Deed of Releaſe ſhall take effect to put the eſtate of him that made the Releaſe in him to whom the Releaſe is made, as in the caſe aforeſaid.
Alſo if a joynt eſtate be made to the Husband and Wife, and to a third perſon, and the third perſon releaſeth his right that he hath to the Husband, then hath the Husband the half which the third perſon had, and the Wife of this hath nothing: ſemblably if the third perſon had releaſed to the Wife, not naming the Husband in the Releaſe, then77 ſhould the Wife have the half that the third perſon had, and the Husband nothing of this but in the right of his Wife, becauſe ſuch Releaſe ſhall enure to put the eſtate in him to whom it was made, of all that that belongeth to him that made the Releaſe. Again, In ſome caſe a Releaſe ſhall enure and ſerve to put all the right that a man hath that made that Releaſe in him to whom it is made: As a man being ſeized of certain Lands, is diſſeized by two diſſeizors, if the perſon diſſeized by his Deed releaſe all his right to one of the diſſeizors, then he to whom the Releaſe is made, ſhall have and hold all to him alone, and put out his fellow out of the occupation of it. And the cauſe is,Diſſeiſors. for that the two diſſeizors were ſeized by wrong by them done againſt the Law, and when one of them getteth the Releaſe of him that hath right to enter, this right reſteth in him to whom the Releaſe is made, and in ſuch plite, as if he that had the right had entered and enfeoffed him of the ſame; and the cauſe is, for that he that before had an eſtate by wrong, hath now by the Releaſe a rightfull eſtate.
And in ſome caſe a Releaſe ſhall enure78 and take effect by way of extinguiſhment,Releaſe by way of extinguiſhment. and ſuch a Releaſe ſhall help the Joyntenant to whom the Releaſe was not made, as well to him to whom it is made, as if a man be diſſeized, and the diſſeiſour maketh a feoffment to two men in fee, if the perſon diſſeized releaſe to one of the feoffees in fee by his Deed, then ſuch Releaſe ſhall inure to both the feoffees, becauſe the feoffees have their eſtate by the Law, that is to ſay by the feoffment, and not by wrong done to any other.
And in like manner if the diſſeizour make a Leaſe to a man for terme of life,A Releaſe ſhall inure to him in the remainder. the remainder over to another in fee, if the diſſeiſes will releaſe to the Tenant for terme of life, all his right, this Releaſe ſerveth as well to him in the remainder, as the Tenant for terme of life: And the cauſe is, for that the Tenant for terme of life, cometh to his eſtate by the courſe of the Law, and for this cauſe the Leaſe ſhall inure and take effect by way of extinguiſhment of the right of him that hath releaſed; and by this Releaſe the Tenant for terme of life hath no greater eſtate then he had before the Releaſe made unto him.
79And yet the right of him that releaſed is all utterly extinct and gone, wherefore for as much as ſuch a Releaſe cannot enlarge the eſtate of the Tenant for term of life, it is reaſon that it ſhall ſerve him in the remainder.
Alſo if there be two Parceners, and the one alieneth his part to another, the other Parcener and the alience be Tenants in Common.
Furthermore,Tenants in Common, by Title of preſcription. Tenants in Common may be by Title of Preſcription, if that one and his Anceſtors, or they whoſe eſtate he hath in the half have holden in Common, the ſame half with the other Tenant that hath the other half, and with his Anceſtours or them whoſe eſtate he hath, as undenied time out of mind, and ye ſhall mark, that in ſome caſe Tenants in Common ought to have of their poſſeſſion, ſeverall actions and in ſome caſe they ſhall joyn in one action,Actions ſeverall. for if there be two Tenants in Common and they be diſſeiſed, they ought to have againſt the Diſſeiſor two Aſſizes and not one Aſſize, for every one of them ought to have an Aſſize of his half,Aſſize. becauſe they were ſeized by ſeverall Titles, but otherwiſe it is of Joyntenants,80 for if there be twenty Joyntenants and they be diſſeiſed they ſhall have in all their names but one Aſſize,Aſſize. becauſe they have but one Joynt-Title.
Alſo if there be three Joyntenants of whom the one Releaſeth to one of his fellowes all the right he hath, and afterward the other two be diſſeiſed of the whole, in this caſe, they ſhall have in both their names one of the two parts: And as to the third part, he to whom the Releaſe was made, ought to have hereof an Aſſize in his own name, becauſe as to the third part he is Tenant in Common.
Alſo as to ſue Actions that touch the Realty,Diverſity. there is a Diverſity between Parceners that are in by divers diſcents and Tenants in Common. For if a man ſeized of certain Lands in fee hath Iſſue two Daughters and die, and they enter into the Lands as Co-heirs, and each of them have Iſſue a Son and die without partition made between them, ſo that the one half diſcendeth to the Son of the one Parcener, and the other half to the Sonne of the other, and they Enter and Occupie in Common and be diſſeiſed81 in this caſe, they ſhall have in their two names one Aſſize and not two Aſſizes, and yet the cauſe is, though they come in by divers Diſcents yet they be Coheirs and Parceners. Alſo if two Tenants in Common of certain Lands in fee, give the ſame to another man in the tayl or let it to another for term of life, yielding an annunity or certain Rent, or a pound of Pepper, or an Hawk, or an Horſe, and they be ſeized of theſe ſervices, and afterward all the Rent is behinde, and they Diſtrain for it, and the Tenant maketh Reſcous in this caſe,Reſcous. as to the Rent and the pound of Pepper, they ſhall have two Aſſizes, and as to the Hawk and the Horſe but one Aſſize, and the cauſe why they have two Aſſizes, as to the Rent and pound of Pepper is, for that they were Tenants in Common by ſeverall Titles, and when they made a gift in the tayle for Leaſe of term of life, ſaving and reſerving to them the Reverſion, and yielding to them certain Rent; This Reſervation is incident to their Reverſion, and becauſe their Reverſion is in Common and by ſeverall Titles, even as their poſſeſſion was before the Rent, and other things82 which may be ſevered, and which were to them reſerved upon the gift or upon the Leaſe which be incident by the Law to the Reverſion. Plaint in Aſſize.Therefore ſuch things ſo ſevered be of the nature of the Reverſion, wherefore it behoveth that the Rent and the pound of Pepper which may be ſevered to be then in Common by ſeverall Titles, and of this they ſhall have two Aſſizes, and every of them in his Aſſize ſhall make his Plaint of the half of the Rent, and of the half of the pound of Pepper, but of the Hawk and the Horſe which cannot be ſevered, they ſhall have but one Aſſize, for it were an abſurdity and thing inconvenient to make a plaint in Aſſize, of the half of an Hawk, or of the half of an Horſe: In like manner it is of the other Rents and ſervices that Tenants in Common have in ground, by divers Titles.
And ye ſhall underſtand,Perſonall Action. that concerning Actions perſonalls, Tenants in Common ought to have them Joyntly in all their names: that is to ſay, Of treſpaſs, or of offences that touch their Tenements in Common; as of breaking of their Houſes, breaking of their83 Cloſes, and Paſtures, waſting and defouling of their Graſs, cutting of their Weeds, and of Fiſhing in their Ponds, and ſuch other, they ſhall recover joyntly damages, becauſe the action is in the perſonalty and not in the realty. Damages.
Alſo if Tenants in Common make a Leaſe of their Tenements to another, for term of years,Tenants in Common ſhall have one Action of Debt. yiedling unto them yearly a certain Rent, if the Rent be behind, they ſhall have one action of debt againſt the Leſſee, and not divers actions, becauſe the action is in the Perſonalty, but in an Avowry, for the ſaid Rent they ought to be ſevered, becauſe it is in the realty, as be the Aſſizes.
IT is to be known, that as there be Tenants in Common of Lands or Tenements, ſo there be Tenants in Common of poſſeſſions, and property of Chattells as well Reall as Perſonall: Of Reall, as if a Leaſe be made of certain Lands to two Men for term of Twenty years, and when they be thereof Poſſeſſed, the one granteth that that unto him belongeth during the term to another, he to whom the grant is made, and the other ſhall hold and Occupie in Common.
Alſo if two Joyntenants have the Ward of the Body,Joyntenants of a Wa d. and of the Lands of an Heir within age, and the one of them granteth to another that that unto him belongth of the ſame Ward, then he to whom the grant is made, and the other that granteth not ſhall have and hold it in Common.
Of Chattels Perſonalls: as if two have a joynt eſtate, either by gift or by85 buying of an Horſe or of an Oxe or ſuch like, and the one of them granteth that that to him belongeth; here ſhall the grantee and he that granteth not, have and poſſeſs ſuch Chattels perſonall in common: And in ſuch caſe where divers perſons have Chattels reals or perſonals in common and by divers Titles, if one of them die, the other that ſurviveth ſhall not have his fellows part by the ſurvivour, but the Executors of him that dieth ſhall hold and occupy it with him that ſurviveth, in like form as their Teſtator did or ought in his life, foraſmuch as their rights and Titles were ſeverall, alſo in the Caſe aforeſaid, if two have an eſtate in common for terme of years, and the one doth occupy all and put the other out of his poſſeſſion and occupation, then ſhall he that is put out, have againſt the other a Writ de Ejectione firmae for the half:A Writ de ejectione firmae. in ſemblable manner, where two hold the Ward of Lands or Tenements during the nonage of a Childe, if one ſhall put out the other of his poſſeſſion, he that is out ſhall have a Writ Ejectione cuſtodiae,De ejectione cuſtodiae. of the half, becauſe theſe things be Chattells Realls, and may be opportionted86 and ſevered, but no Action of Treſpaſs lieth for one againſt the other (as for example, quare olauſum fregit & herbam ſuam conculcavit & conſumpſit, nor ſuch like Actions,) foraſmuch as each of them may enter and occupy in common: but if two be poſſeſſed of Chattels perſonall in common, by divers Titles, as of an Horſe, an Oxe or a Cow, if the one take it all to himſelf out of the poſſeſſion of the other, the other hath none other remedy but to take it again from him that hath done him the wrong, when he may ſee his time.
In like manner of Chattels realls which may not be ſevered, as in the caſe aforeſaid, where two be poſſeſſors of the wardſhip of the body of a Childe within age, if one of them ſhall take the Childe out of the poſſeſſion of the other, the other hath no remedy by any Action at the Law, but to take the Childe out of the others poſſeſſion when he ſeeth his time.
Finally ye ſhall underſtand,Form of Pleading. That when a man in pleading and declaring his Cauſe, will ſhew a Deed of Feoffment made unto him, or a gift in fee-tayle, or a Leaſe for terme of life, of any Lands87 or Tenements, he ſhall uſe his termes in this wiſe and ſay; By force of ſuch Feoffment, Gift or Leaſe he was ſeized, &c.
But where a man will declare or plead a Leaſe or Grant made unto him of a Chattell reall or perſonall, then he ſhall ſay, By force of which he was poſſeſſed.
ALl Joyntenants and Tenants in Common of any eſtate of Inheritance, in their own rights or in the right of their Wives, of any Lands or Hereditaments within this Realm of England, Wales, or the Marches of the ſame, ſhall and may be compelled to make partition between them of the ſame which they ſo hold as Joyntenants88 or Tenants in common, by a Writ de partitione facienda,Writ de partitione facienda. to be deviſed in the Chancery, in like manner as Coparceners are compelled to do, and the ſame Writ to be purſued at the Common Law. Aide prayed.And after ſuch partition made, every of the ſaid Joyntenants and Tenants in common, ſhall and may have aide of the other or of their Heirs, to the intent to dereigne the warranty paramount, and to recover for the rate as is uſed between Coparceners after partition made by the order of the Common Law.
Item, In the thirty ſecond year of King Henry the eight, Chap. 32. it is further enacted, That all Joyntenants and Tenants in common, which hold joyntly or in common for terme of life, year or years, or Joyntenants or Tenants in common, where one or ſome of them have an eſtate for terme of life or years, with other that have an eſtate of Inheritance or free-hold in any Lands or other Hereditaments, ſhall be compellable by Writ of Partition to be purſued out of the Chancery upon their Caſes, to make ſeverance and partition of all ſuch Lands and Hereditaments as89 they hold joyntly or in common, for terme of life or lives, year or years, or where one or ſome of them hold joyntly or in common for terme of life or years, with other that have an eſtate of Inheritance of free-hold; Provided that no ſuch partition nor ſeverance be hurtfull to any perſon, other then ſuch as be parties unto the ſaid partition, their Executors or Aſſignes.
FOraſmuch as every Eſtate is either pure or conditionall, it were not amiſs to make ſome declaration of the nature and efficacy of Conditions.
Wherefore ye ſhall underſtand, that of Conditions ſome be actuall conditions, and be called expreſs Conditions or Conditions indeed, and other ſome be Conditions in Law; which be called in Latine Conditiones tacitae ſive Conditiones implicitae, becauſe they be ſecretly implied by the Law and not expreſſed.
90Conditions indeed be ſuch as be knit and annexed by expreſs words to the Feoffment,Diviſion. Leaſe or Grant, either in writing or without; as for example, if I infeoff a man of certain Lands, reſerving to me and to my Heirs ſo much Rent yearly, to be paid at ſuch a Feaſt, and for default of payment, that it ſhall be lawfull for me to reenter, this is a feoffment upon condition of payment: And here the reenter of the feoffor for the not payment of the Rent ſhall diſſolve and utterly defeat the feoffment; Semblamble it is of Gifts in tayle, Leaſes, &c. but if the Condition be, that for default of payment of the Rent, it ſhall be lawfull for the feoffor to enter again into the Lands, and to hold them till he be contented and ſatisfied of the Rent; this Condition not performed, doth not diſſolve nor undoe the feoffment, but only giveth to the Feoffor an authority to retain the Lands (as it were by way of Diſtreſs) till he hath levied the arrerages of Rent. Diſtreſs.
And ye ſhall well mark and obſerve, That Conditions be ſometime made to be performed on the Feoffees behalf, and ſometime on the Feoffors behalf: on91 the feoffees behalf, as when I infeoff you of Lands or Tenements, upon Condition that you ſhall do ſuch an act, as to pay unto me or mine Heirs ſuch an annuall Rent on the feoffors behalf; as when I make a feoffment unto you, upon Condition that if I pay or cauſe to be paid unto you before ſuch a day ſuch a ſumme of money, then it ſhall be lawfull for me to enter again and retain my Lands in my former eſtate;Tenants in Mortgage. in this caſe he that is the feoffee is called Tenant in Mortgage, which is as much to ſay as dead-gage; and it ſeemeth that the cauſe why it is ſo called is, foraſmuch as it is doubtfull whether the feoffor will pay at the day limited and preſcribed, ſuch a ſumme of money for the redemption of his Lands or not, for if he do not, his Title or intereſt in the Lands thus gaged and oppignorate, is utterly extinct and gone without all hope of renewing.
Ye ſhall alſo note, That if the mortgager dieth before the day of payment, his Heir may redeem the Land very well, even as well as his Anceſtour that mortgaged the Land might have done, although there be no mention made92 of Heirs in the writing.
Alſo if when the money is lawfully by the mortgager or his Heir tendered and profered, and the Leſſour refuſeth to receive the ſame, the feoffour or his Heir may enter, and then hath the feoffee no remedy for his money at the Common Law.
Ye ſhall underſtand alſo, that ſome conditions be utterly void in the Law, and of none efficacy,Conditions void. vertue or ſtrength: As if a feoffment be made of Lands in fee-ſimple, upon condition that the feoffee ſhall not alien or put away the ſame to none other; this condition I ſay is void, becauſe the feoffee is reſtrained of his whole power that the Law giveth in ſuch caſe unto him, and with power and liberty is manner included in every feoffment: yet I may abridg him of part of his power, as to condition with him, that he ſhall not alien the Lands to ſuch a perſon or ſuch; but of Gifts in Tayl otherwiſe it is, for if I give Lands to a man, and to the Heirs of his body lawfully begotten,Gift in Tayl upon Condition. upon condition that he nor his Heirs ſhall alien the Lands to none other perſon, this Condition is good and effectuall93 in the Law; and if he or his Heirs, contrary to the Condition, do alien them, then the giver or his Heirs, may very well enter and retain the Lands for ever, becauſe this Condition ſhall ſtand with the forenamed Statute of Weſtminſter the ſecond, which prohibiteth ſuch alienations to be made.
Hitherunto have I ſpoken of Conditions in Deed; now will I ſhew what be Conditions in Law that be annexed to any Eſtates.
Know ye therefore,Eſtates upon conditions in Law. that if the Office of a Parker, Steward, Conſtable, Bedle, or Baliff, or ſuch like Office be granted to a man for term of his life, though there be no condition at all mentioned in the grant; yet the Law ſpeaketh of a condition in this caſe, which is, that if the party to whom ſuch Office is given ſhall not execute all points appertaining unto his Office, accordingly by himſelf or his Lawfull Deputy, it ſhall be Lawfull for the grantor to Enter, and diſcharge him of his Office, and this condition is called a condition in Law.
There be alſo three other manner of Eſtates upon Condition, that is to ſay,94 Conditions againſt the Law, Conditions Depugnant, and Conditions Impoſſible. Firſt, Eſtates upon Conditions againſt the Law, be as if a man make a Feoffment, gift, grant or Leaſe upon Condition, that if the Feoffors, Donours, Grantours, or Leſſours kill J. S. which is not the Kings enemy, or burn his houſe, that then it ſhall be Lawfull to the Feoffors, Donours, &c. To reenter this Condition is void, and the Eſtate good.
And like Law is,Conditions againſt the Land; if ſuch Conditions be to be performed of the part of the Feoffee, Grantee, &c.
But if it be that a Leaſe for term of years be made of Land, upon Condition, that if the Leſſees kill J. S. that then he ſhall have fee ſimple, although that he in his caſe perform the Condition, his Eſtate is nothing thereby inlarged, becauſe the Condition is againſt the Law.
And ye ſhall underſtand, that where an Obligation is Indorſed, with a Condition which is againſt the Law, both the Obligation,Conditions Repugnant. and alſo the Condition, be clearly void in the Law.
Eſtates upon Conditions Repugnant,95 be as if a Feoffment or a gift in tayle be made, upon Condition, that the Feoffee or Donee ſhall take no profit, or ſhall do no waſt, and ſuch other like, ſuch Conditions be void, and the State good and effectuall in the Law notwithſtanding.
Alſo if a Leaſe be made for term of life, upon Condition, that he ſhall not doe Fealty, that is as a void Condition.
Likewiſe it is, if a man that hath nothing in the Manour of Sale, granteth a Rent-charge, going out of the ſame, upon Condition, that the perſon ſhall not be charged, this grant is good, and the Condition is void.
Eſtates upon Conditions impoſſible, be as if a Feoffment be made upon Condition, that if the Feoffee goeth not through the Sea on foot to Calice in one day,Conditions Impoſble. then it ſhall be Lawfull to the Feoffor to re-enter, this is a fruſtrate and void Condition, and yet the eſtate is good.
Like Law is of a Leaſe made for term of years, &c. or an Obligation with a Condition impoſſible, ut ſupra, the Obligation or Leaſe is good,96 and the Condition void to all purpoſſes.
IT is enacted, that as well perſons which have or ſhall have any gift or grant of the King, by his Letters, Patents of any Lands, Perſonages, Titles or other Hereditaments, or any reverſion of the ſame, which did belong to any Monaſtry or other Eccleſiaſticall Houſe diſolved, or otherwiſe come into the Kings hands ſince the fourth day of February, in the twenty eight Year of our Sovereign Lord King Henry the Eight, or which at any time heretofore did belong to any other Perſon, and after come into the Kings hands; as alſo all other Perſons being Graunters or Aſſigns to the King, or to any other Perſon, their Heirs, Executors, Succeſſors and Aſſigns, ſhall have like97 advantage againſt the Farmours, and their Executor, Adminiſtrators, and Aſſigns, by Entry for Non-Payment of the Rent, or for doing waſt or other forfeiture, and alſo ſhall have the ſame advantage by Action only, of not performing of other Conditions, Covenants, or Agreements, contained in the Indentures of their Leaſes or Grants, againſt the ſaid Farmours, and Grantees, their Executors, Adminiſtrators, and Aſſigns, as the ſaid Leſſors or Granters themſelves might have had at any time; and again Mutually, and on the other ſide the ſaid Farmours and Grantees for term of years, life or lives, their Executors, Adminiſtratours, and Aſſigns ſhall have like advantage againſt them, for any Condition, Covenant, and Agreement, contained in the ſaid Indenture, as they might have had againſt their ſaid Leſſors, and Granters, their Heirs, Succeſſors, all benefits and advantage of recoveries in value, by reaſon of any warranty of deed, or in Law, by voucher or otherwiſe only except.
Provided, that this Act ſhall not extend to charge any Perſon for Breach of98 any Covenant or Condition compriſed in any ſuch writing, but for ſuch as ſhall be broken and not performed, after the firſt day of September, in the 32. Year of this King, and not before.
IN all Feoffments gifts in tayle, Leaſes, for term of anothers life, of Lands, or Tenements, there can be no Alteration, Tranſmutation of Poſſeſſion, by the Antient Laws of this Realme, unleſs there be a certain Ceremony Adhibited and Solemnized in the preſence and ſight of neighbours or others, which Ceremony is called Livery of Seiſin.
And ye ſhall underſtand,The manner Livery of Seiſin. that this Ceremony of Livery of Seiſin is done, when the Feoffour, Donour, Leſſour, or other Deputy come with the Neighbours Solemnly to the Lands or Tenements, and they put the Feoffe, Donee, or99 Leſſee in poſſeſſion of the ſaid Lands or Tenements, by delivering to him a Clod of Earth, or the ring of the Door, or ſome other thing in the name of Seiſin, and for this ſelf cauſe, this Ceremony of Law is called Livery of Seiſin, that is to ſay, a Tradition or giving of Seiſin.
But this Ceremony is not required in Leaſes for term of years,Diverſity between Poſſeſſion and Seiſin. or in Leaſes at will: For as much as the Leſſour in ſuch Leaſe remaineth ſtill ſeized, and the Leſſee only hath poſſeſſion without any Livery of Seiſin, and therefore the terms of the Law be that ſuch a man is poſſeſſed, whereas in Feoffments, gifts in tayle, and Leaſes for life he is called ſeized.
Wherefore if a Feoffment or Leaſe for life be made of Lands or Tenements, and before that the Livery of a Seiſin be made, the Feoffour dieth, the Heir of the Feoffour ſhall have Lands, Per ſummum jus, that is to ſay, by the Rigour of the Law; Notwithſtanding that the Feoffee have paid to the Feoffour the price of the Land, and although the Feoffee be in poſſeſſion, but otherwiſe it is of a Leaſe for term of Years.
100A like Ceremonie is uſed,Atturnment. when Rent-charge, Rent-ſervice, Rent in groſs, a Villain in groſs, common in groſs, common for Beaſts, certain Eſtovers, and ſuch other things as paſs by way of grant be granted, for it is no full and perfect grant till it be conſignat and ſealed as it were with the Ceremonie of Atturnment; this Atturnment is nothing elſe, but when the Tenant of Land of which a Rent granted is granted, or out of which a Rent is granted, doth make ſome evident ſignification and token, that he accepteth the perſon to whom the grant is made, to be in the ſame reſpect unto him that the granter was: as for an example, if the Tenant of the Land after he have heard of the grant, cometh to the grantee, that is to wit, to the perſon to whom the grant was made, and ſay in this wiſe, or in like effect;
I agree unto the Grant made unto you by ſuch a man;How attu nment ſhall be made. or I am well apaid and contented of the Grant that ſuch a man hath made unto you: but the moſt uſuall frequent form of Atturnment, is to ſay; Sr I atturn unto you by force of the ſaid Grant; or I become your Tenant; or to101 deliver unto the grantee a Peny or a Halfpeny by way of atturnement.
If a man maketh firſt one grant to one perſon, and after another to another perſon, that grant ſhall ſtand to which the Tenant will atturn, although it be to the later grant.
And ye ſhall note, That if a man be ſeized of a Mannour, which is parcell in demean and parcell in ſervice, and doth alien the ſame Mannour to another, unleſs the Tenant of the Mannor do atturn the Service ſhall not paſs, only Tenants at will excepted, for it needeth not to cauſe them to atturn.
Note furthermore,Diverſity. there is a great difference between giving a Peny in name of Seiſin, and giving by way of Atturnement; for when it is given by the Tenant to the Grantee in the name of Seiſin, it doth not only imply an Atturnment,Aſſize. but alſo it giveth him ſuch a ſeizin, that if the Rent afterward were behind and not paid, he may now upon the ſeiſin of the Peny, after a lawfull diſtreſs taken, and after Reſcous made,Writ of Reſcous. bring an Aſſize of Novel Diſſeizin; whereas if it were given only by way of Atturnement, he could not bring the102 Aſſize, but his Writ of Reſcous only if Reſcous were made.
Alſo ye ſhall underſtand, That where Lands be deviſeable by Teſtament by the cuſtome of any ancient Borough or City, if the reverſion of any Lands be by Teſtament bequeathed to a man in fee, and the Teſtator (which we call the deviſor) dieth, the deviſee (that is to wit he to whom the deviſe was made) hath forthwith the reverſion in him without further ceremonie of Atturnement:Atturnment. likewiſe it is if a man by teſtament doth bequeath a Rent-charge that he is ſeized of, or of a Rent-ſervice there needeth none atturnement at all.
If two Joyntenants of Land and the Lord granteth the ſervices to another, if one of the Joyntenants atturneth it is enough.
Finally, If a Leaſe be made for terme of life, the remainder to another in tayl; the remainder over to the right Heir of the Tenant for terme of life in this caſe, if the Tenant for terme of life will grant his remainder in fee to another by his deed, this remainder paſſeth forthwith without any atturnement; For if any Atturnement were requiſite, it103 ſhould be made of the Tenant for terme of life,Not Requiſite. which in this caſe is the granter himſelf. And in vain it is that the granter ſhould be inforced to atturn, ſith an atturnment is adhibited and had to none other purpoſe, then to have the conſent and agreement of the particular Tenant, to the intent that it may appear that he hath notice and knowledg of this grantee; but here where the particular Tenant himſelf is the granter, an atturnement were ſuperfluous and more then needed.
Note furthermore, That where there is Lord and Tenant, and the Tenant leaſeth his Tenements to a woman for life, the remainder over in fee, the woman taketh a Husband, and after the Lord granteth the ſervices, &c. to the Huſband, in this caſe during the coverture, the ſervices be put in ſuſpence;Suſpence. but if the Wife die leaving the Husband, the Husband and his Heirs ſhall have the Rent of them in the remainder, &c. And in this caſe there needeth no atturnement by word, becauſe the Husband that ought to atturn accepteth the Grant of the Services, the which acceptance is an atturnement in the Law.
HItherunto have I briefly touched and overrun the ſundry kinds and forms of Eſtates: Now foraſmuch as there is no Tenure but hath unto it ſome ſervice knit and annexed, it were very neceſſary to declare how many kinds of Services there be, and what Service is due to every Tenure; for the knowledg hereof ye ſhall underſtand, that the principall and moſt common kind of ſervice that the Tenant oweth to his Lord, is called Knights-ſervice.
KNights-ſervice includeth Homage, Fealty, and for the moſt part Eſcuage, and whoſoever holdeth his Lands by Knights-ſervice, is bound by the Laws of this Realm, to do unto his Lord homage and fealty, and to pay for the moſt part Eſcuage, when it ſhall be aſſeſſed by authority of Parliament, as hereafter more plainly ſhall be declared.
Homage is the moſt humble and reverent ſervice that a man of free eſtate and condition can do, for when the Tenant ſhall do homage to his Lord, the Lord ſhall ſit,Homage. and the Tenant then ſhall kneel down before him upon both knees, holding his hands between his Lords hands, and ſay in this wiſe; I become your man from this day forward, of life and of member and of earthly Honour,How the Tenant ſhall do Homage. and to you ſhall be faithfull and true, and faith to you ſhall bear for the Lands that I106 claim to hold of you, ſaving the faith that I bear unto our ſoveraign Lord the King. And then the Lord ſo ſitting ſhall kiſs him: But if an Eccleſiaſticall perſon, which by his order and profeſſion hath addicted himſelf to the ſervice of God in eſpeciall,What a religious Perſon ſay when ſhe doth Homage. and do homage to his Lord, he ſhall ſay; I do to you homage, and ſhall be to you faithfull and true, and faith to you ſhall bear for the Tenements that I hold of you, ſaving the faith which I owe unto our ſoveraign Lord the King.
Alſo when a woman not married doth homage to her Lord,What a woman ſhall ſay. ſhe ſhall not ſay, I become your woman; for it is not convenient that a woman ſhould be the woman of any other then of her Huſband that ſhe ſhall marry, but ſhall ſay even as the Eccleſiaſticall perſon ſaith; I do unto you homage, &c. And if perchance a man holdeth ſundry Lands and Tenements of ſundry Lords, and every of them by Knights-ſervice, then in the end of his Homage making he ſhall ſay; Saving the faith that I owe to our ſoveraign Lord the King, and to mine other Lords. And none is bound to do homage to the Lord, unleſs it be107 ſuch Tenant as hath in the Tenancy an eſtate of fee-ſimple or fee-tayle, either in his own right, or in the right of another, for if a woman have Lands or Tenements in fee-ſimple or fee-tayle,What Tenant ſhall do Homage. which ſhe holdeth of her Lord by Knights ſervice, and taketh an Husband and hath Iſſue, in this caſe the Husband in the life of his Wife ſhall do homage, becauſe he hath Title to have the Lands by the Courteſie of England if he overliveth her, and alſo he holdeth them now in his Wives right; yet before Iſſue had between them; the Homage ſhall be made in both their Names; but if the woman dieth before any homage made in her life, and the Husband keepeth ſtill the Lands, as Tenant, by the Curteſie, now he ſhall not do homage to his Lord, becauſe he hath now an eſtate but for terme of life.
Fealty is as much to ſay as Fidelity,Fealty. or faithfulneſs, in doing whereof the Tenants ſhall hold his hand upon a Book, and ſay thus;How a Tenant ſhall do Fealty. Hear you this my Lord, I to you ſhall be faithfull and true, and faith to you ſhall bear for the Lands and Tenements which I claim to hold of you, and duly ſhall do to you108 the Cuſtomes and Services which I owe to do to you at the termes aſſigned, as, Me help God; and then he ſhall kiſs the Book, but he ſhall not kneel as he that doth homage, nor do ſuch humble or reverent ſervice as is before declared in Homage.
And ye ſhall obſerve that Homage cannot be done but to the Lord himſelf;Diverſity between Homage and Fealty. whereas the Steward of the Lords Court, or the Bayliff may take Fealty for the Lord.
Alſo, Tenant for term of life, ſhall do Fealty, but Homage (as I ſaid) he cannot do.
Now as concerning Eſcuage, that is to ſay, The ſervice of the Shield. Ye ſhall underſtand, that he that holdeth his Lands by Eſcuage, when the King maketh a voyage Royal into Scotland, for the ſubduing of the Scots, is bound to be with the Kings Majeſty, by the ſpace of twenty daies, well and conveniently arrayed and appointed for the Warre: And he that holdeth his Land but by the Moity of the Fee of Knights ſervice, is bound by the force of his Tenure, to be with the King by ſpace of twenty daies; and ſo proportionably109 according to the rate and quantity of his Tenure.
But now to our inſtitute and purpoſe after this Voyage Royal into Scotland, in which the King goeth in Perſon, and after his return into England again, a Parliament is wont to be ſummoned, in which ſhall be preſcribed and aſſeſſed what every Perſon that held his Land by Homage, and went not with the King, neither by himſelf nor by his Deputy, ſhall pay to his Lord in ſatisfaction of his not ſerving; and according to the taxation hereof, every Tenant ſhall pay to his immediate Lord, whether it be to the King, or other, after the rate and portion of his Tenure: If he holdeth by an whole Fee, he ſhall pay the whole Eſcuage; if by a Moity, the half; if by a fourth part of a Fee, the fourth part, &c. And this Money thus aſſeſſed, is called Scutage, or Eſcuage; for which the Lord to whom it is due, may very well for the nonpayment thereof diſtrein: But here is to be noted, that ſome Tenants by Cuſtom, uſed time out of mind,Diſtreſs of Eſcuage. are bound to pay but the Moity, or the third part of that which ſhall be aſſeſſed and limited110 by Act of Parliament.
Yea,Eſcuage Certain. and the Cuſtom is in ſome place, that to what ſumme of Money ſoever Eſcuage is aſſeſſed, the Tenants ſhall pay never but ſuch a certain ſumme of Money; and this kind of Eſcuage is called Eſcuage certain, that is to ſay, Where Eſcuage is aſſeſſed by the Parliament to a more or leſs ſumme, the Tenant to pay to the Lord five Shillings, and no more, nor no leſs, &c. Such a Tenure is called Socage Tenure, and not Knights Service, whereas the other is called Eſcuage uncertain.
Finally,Eſcuage Uncertain. ye ſhall underſtand that Eſcuage uncertain, is alwaies adjudged to be Knights Service, and draweth unto it Warde, Marriage, and Relief; but Eſcuage certain, is not Knights Service, but is of the Tenure of Sucage; as ſhall be hereafter more amply ſhewed.
EVery Knights-Service draweth unto it Warde, Marriage, and Relief; wherefore it is now right expedient ſomewhat to entreat of them.
Ye ſhall therefore be admoniſhed,Warde. that when the Tenant which holdeth his Lands by Knights-ſervice dieth, his Heir male, being at that time within the age of twenty one years, the Lord ſhall have the Warde; that is to ſay, the cuſtody or keeping of the Lands ſo holden of him, to his own uſe and profit, till the Heir cometh to the full age of twenty one years; For the Law here preſumeth, that till he cometh to his age, he is not able to do ſuch Service as is of his Tenure required.
Furthermore,Marriage. if ſuch Heirs be unmarried at the time of the death of the Tenant, then the Lord ſhall have alſo112 the Warde, and the beſtowing of the Marriage of him.
But if a Tenant by Knights-ſervice dieth,The full age of a woman. his Heir Female, being of the age of thirteen years or above, then the Lord ſhall have the Warde, neither of the Land, nor yet of the Body of ſuch an Heir; and the reaſon hereof is, becauſe a woman of that age, may have a Husband able to do Knights-ſervice; that is to ſay, To wait upon the Kings Majeſties Perſon, when he goeth into Scotland with his Army Royal.
But if ſuch an Heir Female be within age of fourteen years, and not married at the time of the death of her Anceſter, then the Lord ſhall have the Wards of the Land holden of him, till ſuch Heir Female cometh to the age of ſixteen years, by force of an Act of Parliament, in the Statute of Weſtminſter. 1 Cap. 12.
Note that there is a great diverſity in the Law between the ages of Females,Diverſity of age. and of Males; for the Female hath theſe many ages appointed by the Law:Age of a woman. Firſt, At ſeven years of age the Lord her Father may diſtrein his113 Tenants for aid to marry her. Secondly, At nine years of age ſhe is dowable. Thirdly, At twelve years ſhe is able to aſſent to Matrimony. Fourthly, At fourteen years ſhe is able to have her Land, and ſhall be out of Warde, if ſhe be of this age at the death of her Anceſter. Fifthly, At ſixteen years ſhe ſhall be out of Warde, though at the death of her Anceſter ſhe was within the age of fourteen years. Sixthly, At twenty one years ſhe is able to make alienations of her Lands or Tenements; whereas the man hath but two ages, the one at fourteen years to have his Lands holden in Socage,The age of a man. and to aſſent to Matrimony, the other at twenty one to make Alienations.
Ye ſhall underſtand, that by the Statute of Merton. 6 Chap. it is enacted, That if in caſe the Lord do marry their Ward to villains or others (whereby is diſparagement) if ſuch Heirs ſo married be within the age of fourteen years, or ſuch age that the ſaid Warde cannot conſent to the marriage; then if the friends of this Heir complain, and feel themſelves grieved with this unmeet marriage, the114 next of kinne to the Heir unto whom the Heritage cannot deſcend, may enter into the Lands, and put out the Lord which is Gardian in Chivalry: And if the next Kinſ-man will not thus do, another Kinſ man of the Infant may do it; and ſhall take the Iſſues and Profits to the behoof and uſe of the Heir, and yeeld account thereof unto him,Account given. when he cometh to his full age.
And there be divers other diſparagements which be not expreſſed in the ſaid Statute;Divers Diſparagements. as, if the Heir (being within age of conſent, and in Ward) be married to a decreped Perſon or Creeple, as to one that hath but one foot, or one hand, or that is a deformed creature, or having any horrible diſeaſe, or continuall infirmity. All theſe and ſuch like be diſparagements.
But here alſo ye ſhall underſtand, that it ſhall be ſaid no diſparagement, unleſs the Heir be ſo married when he is within age of diſcretion, that is to ſay, within the age of fourteen years: For if he be of that age, or above, and aſſenteth to ſuch marriage, it is no diſparagement, neither ſhall the Lord115 for ſuch marriage looſe his Ward, becauſe it ſhall be reputed and aſſigned to the folly of the Heir, being of age, of diſcretion, to conſent to ſuch marriage.
Now if the Lord, then being a Gardian, after to the Heir, being his Ward, a convenient marriage without diſparagement, and the Heir refuſeth it,Value of Marriage. as he may at his choice and election very well do; then the Lord ſhall have the value of the marriage of ſuch an Heir when he cometh to his full age: But yet if he marry himſelf, being ſo in Ward againſt the will of his Gardein, then he ſhall pay the double value,Double value of Marriage. by force of the ſaid Statute of Merton, before remembred.
And ye ſhall Note, that if Lands holden by Knights-ſervice,One ſhall not be Ward, living his Father. deſcend to an Infant or Child within age, from his Mother, or from any of his Anceſters; his Father being yet alive, in this caſe the Lord ſhall not have the marriage of his Heir; for during the life of his Father, the Sonne ſhall be Ward to no man.
Finally, it is to be known, that he which is Gardian in Chivalry in right,116 may before he hath ſeiſed the Ward, grant the ſame either by Deed or without Deed to another man; and then he to whom ſuch a grant is made, is called Gardein in Fait.
Now as touching Relief, ye ſhall know; that if a man holdeth his Land by Knights-ſervice, and dyeth, his Heir being of full age (the full age of the Male is twenty one years, of the Female fourteen) then the Lord of whom the Land his holden, ſhall have of the Heir Relief.
Note ye, that all Earls, Barons, or other the Kings Tenants (holding of him in chief by Knights-ſervice) which die, their Heir being of full age at the time of their deaths, that is to ſay, twenty one years of age, they ought to pay the old Relief for their Inheritance; that is, the Heir or Heirs of an Earl, for an whole Earldome 100l; the Heir or Heirs of a Baron, for an whole Barony an 100 Markes; the Heir or Heirs of a Knight One 100 Shillings, and he that hath leſs, ſhall give leſs according to the old Cuſtom of Fees. Like Law is obſerved of all others that hold of any other117 Lords: immediately, Ʋt ſupra.
Alſo a man may hold Lands of a Lord by two Knights Fees, and then the Heir being of full age at the death of his Anceſter, ſhall pay to his Lord for Relief ten Pounds.
YE ſhall underſtand, that a man may hold by Knights-ſervice, and yet not hold by Eſcuage, nor ſhall pay any Eſcuage; for he may hold by Caſtle-Guard, that is to ſay, by ſervice to keep a Tower of his Lords Caſtle, or ſome other place, upon a reaſonable warning, when his Lord heareth that enemies will come, or be already come into England.
This ſervice is alſo Knights-ſervice,Ground in the Law. and draweth to it Ward, Marriage, and Relief; as in all Caſes the common Knights-ſervice doth.
THere is alſo another kind of Knights-ſervice, which is called Grand-Serjeanty; that is, where a man holdeth his Lands or Tenements of the King by ſuch ſervice as he oweth in proper perſon to do, as to bear the Banner of our Sovereign Lord the King, or his Spear, or to conduct his Hoſt, or to be his Marſhall, or to be the lower Carver, or Butler at the Feaſt of the Coronation, or to be one of the Chamberlains of the receipt of his Exchequer, or to do like ſervice to the King in proper perſon: Such manner of ſervice (I ſay) is called Grand-Serjeanty, that is to ſay, A great or high Service. And the cauſe why it is ſo called, is, becauſe it is the moſt honourable and moſt worthy Service that is:The moſt high Service. For he that holdeth by Eſcuage, is not appointed by his Tenure to do any other more ſpecial Service,119 then another is bound that holdeth by Eſcuage; but he that holdeth by Grand-Serjeanty, is bound to do ſome ſpeciall ſervice to the King.
Alſo if he that holdeth of the King by Grand-Serjeanty dieth,Relief of the Tenant by Grand-Serjeanty. his Heir being of full age, then the Heir ſhall pay to the King for Relief, not only a 100s, as he that holdeth by Eſcuage ſhall do, but moreover the clear yearly value of theſe Lands and Tenements, which he ſo holdeth of the King by Grand-Serjeanty. Tenure by Cornage.
Furthermore, ye ſhall obſerve, that in the Marches of Scotland, ſome men hold of the King by Cornage, that is to ſay, blowing of a Horn; to the intent, to warn the men of the Countrey, when they hear that the Scots or other their Enemies be coming, or be already entred into England; which ſervice is alſo a kind of Grand-ſerjeanty. Grand-Serjeanty therefore is as much to ſay in Latin, as Magnum-ſervitium;Definition of Serjeanty. that is to ſay, A great or high Service: Like a Petty-Serjeanty, is called Parvum ſervitium; that is to ſay, A little or ſmall ſervice.
But to revert again to the matter:120 Ye ſhall Note, that if any Tenant holdeth of any other Lord then of the King by ſuch ſervice of Cornage, then it is no Grand-Serjeanty; but yet nevertheleſs, it is Knights ſervice, and draweth to it Ward, Marriage, and Relief: For this is a Rule infallible, That none can hold by Grand-Serjeanty, but of the Kings Majeſty only. Rule in the Law.
Finally, Ye ſhall underſtand, that all they which hold of the King by this Service, called Grand-Serjeanty, do hold of the King by Knights-ſervice; and by virtue of his Tenure, the King ſhall have of them Ward, Marriage, and Relief; but Eſcuage, yet he ſhall not have of them, unleſs they hold by Eſcuage of him by expreſs ſpeciall words.
TEnant by Petty-Serjeanty, is he that holdeth his Land immediately of our Sovereign Lord the King, by this manner of ſervice, to pay to the King yearly, either a Bow, a Spear, a Dagger, a pair of Gauntlets, a pair of Spurres of Gold, a Shaft, or ſuch other ſmall things appertaining to the Warre: And this ſervice is in effect but Socage, becauſe that ſuch a Tenant is not bound by his Tenure to go, nor do any thing in his own proper perſon, touching the Warre, but only to render and pay yearly certain things to the King, as a man ought to pay a Rent. Wherefore this Service of Petty-Serjeanty, is no Knights-ſervice; but yet ye ſhall note, That a man cannot hold neither by Petty-Serjeanty, neither by Grand-Serjeanty, but of the King only.
TEnant by Homage Anceſtrell, is he which holdeth his Land of his Lord by Homage, and both he and his Anceſters, whoſe Heir he is, have holden the ſame Land of the ſaid Lord, and of his Anceſters, time out of mind, by Homage; and have done unto them Homage: And this is called Homage Anceſtrell, by reaſon of the long continuance which hath been by title of preſcription,Warranty becauſe of Homage Anceſtrel. as well concerning the Tenancy in the blood of the Tenant, as concerning the Lordſhip in the Lord. And this ſervice of Homage Anceſtrell draweth unto it Warranty (that is to ſay) if the Lord, which is now in life, hath once received the Homage of his Tenant, he ought to warrant the ſame Tenant, what time ſoever he ſhall be impleaded or ſued for ſuch Lands ſo holden of him by Homage Anceſtrell.
123Moreover ſuch ſervice of Homage anceſtrell draweth unto it acquitall, that is to ſay, the Lord ought to acquit the Tenant againſt other Lords that can demand any manner of Service of the Tenancie.
Wherefore if in this caſe the Tenant which holdeth by Homage anceſtrell, be impleaded of his Lands, and voucheth or calleth his Lord to Warrantie, who cometh in by Proceſs and demandeth of the Tenant, what he hath to binde him to the Warrantie, and the Tenant ſheweth, how he and his anceſtors whoſe Heir he is, have holden his Lands of him and of his anceſtors time out of minde; ſurely the Lord if he cannot deny this, and if he hath received the Homage of ſuch a Tenant, is bound by the Law to warrant him his Land; ſo that if the Tenant loſe his Lands in default of the Lord thus vouched, that is to ſay, called to warrantie, he ſhall recover againſt him as much in value of theſe Lands and Tenements which the Lord had at the time of calling to warranty, or at any time after: but if the Lord never received the Homage of his Tenant, then he may very well when124 he is thus vouched, diſclaim in the Lordſhip or Seignory, and ſo put out the Tenant of his warranty: Wherefore ye ſhall note, that in every caſe where the Lord diſclaimeth in his Seigniory in Court of Record, his Seigniory or Lordſhip is extinct, and the Tenant ſhall hold from henceforth of the next Lord to him that thus diſclaimeth.
Thus ye perceive that Homage anceſtrell is a long continuance, as well in the blood of the Tenant in reſpect of his Tenancy, as in the blood of the Lord in reſpect of his Seigniory; wherefore if the Tenant doth once alien his Lands to another, although he purchaſe the ſame again, yet he ſhall not hold any longer by Homage anceſtrell, becauſe of his diſcontinuance, but ſhall hold now by the vulgar and accuſtomed Homage.
WHen one dieth which held of the King by Knights-ſervice in Capite, that is to ſay, in chief;Tenant in chief of the King. his Heirs being within age, the King (as before is declared) ſhall have the wardſhip and cuſtody as well of the Lands as of the body, that is to wit, the marriage if he be unmarried; but if the Heir be of full age at the time of the death of ſuch anceſtor, yet ſhall the King by his Prerogative royall, have primer Seiſin of all the Lands, Tenements,Primer ſeiſin. and other Hereditaments whereof ſuch his Tenant was ſeized in his demeane as of ſee:Intruder upon the Kings poſſeſſion. And if ſuch an Heir will enter into his Lands when he cometh to his full age, before he ſue his Livery and receive Seizin by the King, no Freehold ſhall accrew nor grow unto him, but he ſhall be deemed an intruder into the Kings poſſeſſion; yea and if he die ſo ſeized in the mean time, his Wife ſhall have no Dowrie of126 ſuch Lands; wherefore it behoveth in any wiſe, that ſuch Heir as well male as female, coming to full age before he or ſhe enter into their Land to ſue Livery, the manner and form whereof, according to the Act of Parliament lately promulgated and ſet forth, I intend briefly to recite.
NO Perſon or Perſons having Lands or Tenements, about the yearly value of five Pound,Writ Diem clauſit extremum. ſhall have any Livery before Inquiſition or Office found before the Eſchetor or other Commiſſioner, by virtue of the Kings Writ of Diem clauſit extremum, or Commiſſion directed out of the Chancery or other Courts; having authority to make ſuch a Writ or Commiſſion, which ſhall not paſs out of the ſame, but by Warrant or Bill aſſigned and ſubſcribed by the Maſter of Wards or Liveries,127 the Surveyor, Atturney, and recoverer of the ſaid Court; or three, two, or one of them to be directed and delivered to the Chancellor of England, or to any other Chancellor or Officer, having power to awarde ſuch Writs; and for the writing and ſealing of the ſame, ſhall be paid of the accuſtomed Fees. But if the Land exceed not the ſaid yearly value of five Pounds, then they ſhall pay for the Seals of every ſuch Writ or miſſion eight Pence, and for the Comwriting ſix Pence; and not above.
And the Inquiſitions and Offices hereupon found, ſhall be returned by the ſaid Eſcheters or Commiſſioners into the ſame Court from whence the Writ or Commiſſion was awarded; which done, the Clerks of the Petty-bogg ſhall receive the ſame Offices, and and make a Tranſcript thereof to the Maſter of the Wards and Liveries. And then the ſaid Maſter, and the Surveyor, Atturney, and generall Receiver; or three of them, whereof the Maſter or Surveyor to be one, ſhall Covenant and Indent with ſuch Perſons for their Livery of the Caſtles, Mannours, Lordſhips, Lands, Tenements, and128 Hereditaments, comprized or not comprized in ſuch Offices; and ſhall make and ſet a rate and price of the ſame, and appoint the daies of payment thereof by Obligation, to be taken for the ſame to the King.
And every Bill for any ſpeciall or generall Livery, aſſigned by the hands of the ſaid Maſter, Surveyor, Atturney, Receiver, or three of them, whereof the Maſter or Surveyor to be one, ſhall be Warrant ſufficient to the Lord Chancellor or other Officer, having power to paſs Liveries under any of the Kings Seals accordingly: In which caſe, the Clerks of the Petty-bogge, or other Clerks by whom the Liveries be written, ſhall receive as well for themſelves as for other, ſuch Fees as hath been accuſtomed.
Item,Generall Livery. Every perſon may ſue at his pleaſure a generall Livery, for any Mannours, Lands, Tenements, Rents, Reverſions, Remainders, or other Hereditaments; whereof the clearly yearly value ſhall not exceed twenty Pounds, provided that an Office be thereof found, and a Warrant firſt obtained of the ſaid Maſter and129 others; as is aforeſaid.
And where ſuch generall Livery is ſued, if the Lands exceed the yearly value of five Pounds, they ſhall pay for the Seal twenty Shillings four Pence; and all other Fees accuſtomed, as afterwards ſhall be declared. But if they exceed not the yearly value of five pound, they ſhall pay but theſe Fees following; that is to ſay, for the Seal of the Livery twelve Pence to the Clerks of the Petty-bogge, for the writing and the inrolling twenty Pence, for the reſpect of the Homage in the Hanapar eight Pence, to the Lord great Chamberlaine twenty Pence, to the Maſter of the Rolles, twenty Pence, and the Clerk of the Liveries, for the Warrant and Inrolling of the Livery twenty Pence.
Item,Reſpect of Homage. No perſon or perſons ſhall pay in the Exchequer, or any other Rents for the reſpect of Homage; for any Lands or Hereditaments, not exceeding the yearly value of five Pound above eight Pence, and for the entering thereof, and Warrant of Atturney above four Pence.
And the value of ſuch Lands and He-Hereditaments, not exceeding the yearly130 value of twenty Pound, ſhall be taken as it is limited in the Offices founden thereof, except by the examinations and Certificate of the ſaid Maſter, Surveyor, Atturney, and Receiver, or three of them: It ſhall otherwiſe appear and be declared in any of the Kings Courts.
Alſo, no Eſchetor ſhall ſit only by virtue of his Office, for the inquiry of the Tenure, Title, or value of any Lands, or other Hereditaments holden of the King, being of the yearly value of five Pounds,Paines of forfeit. or above, without the Kings Writ to him directed upon pain to forfeit five Pound for every time, he ſhall ſo do; neither ſhall he take for the finding of any Office of Lands,Fees of Office. not exceeding the yearly value of five Pound, above fifteen Shillings: That is to ſay, ſix Shillings eight Pence for his own Fee, and three Shillings four Pence for the writing of the Office, and for the Charges of the Jury three Shillings, and for the Officers that ſhall receive the Offices in any Court of Record two Shillings; upon pain, that the Eſchetor doing otherwiſe, ſhall for every time forfeit five Pound. And131 upon like pain, the Officers of every Court of Record, where ſuch Inquiſitions ſhall be returned, being offered unto them within one Moneth, next after the finding thereof, ſhall receive them the one Moity of all, with forfeitures to the King, and the other to the Party that will ſue for the ſame, &c.
And they which hereafter ſhall be in caſe to ſue Livery, whoſe Lands and Tenements exceed not the yearly value of five Pound, may lawfully ſue forth that general Livery, by Warrant from the ſaid Courts, as is aforeſaid; although none other Inquiſition be thereof had, nor certified, paying nevertheleſs the Fees above remembred.
Finally, Every perſon ſhall ſue forth his Patent for his Livery, within three Moneths next after the aſſignment of his Bill, or elſe his Bill aſſigned to be void and of none effect.
FIrſt to the Clerks of the Petty bog, for the reſpect of Homage and Fealty; the writing and inrolling fourteen Shillings two Pence, to the Lord great Chamberlaine fourtie Shillings, to the Maſter of the Rolles three Pound, to the Clerks of the Liveries for writing of the Indentures and Obligations twenty Shillings, beſides Councell.
The Fees of the ſpecial Livery, accuſtomed to be paid by theſe following: That is to ſay, for the ſignet three Pound ten Shillings, for the Privy Seal thirtie Shillings, for the great Seal fourty four Shillings eight Pence, to the Clerks of the Petty-boggs fourty Shillings, to the Maſter of the Liveries Clerks fourty Shillings, for inrollment of the knowledge of the Indenture twelve Shillings, to the Lord great Chamberlaine of England fourty Shillings, for the Writ of the Allowance for the ſame Livery ten Shillings ſix Pence.
133And note ye, that ſometime in ſpeciall Caſes the Fees be more, and ſometime leſs, as the caſe and matter doth require.
Hitherto have we briefly touched all kinds of Knights-Service, and things incident to the ſame: Now will we with like briefneſs, declare the other kind of Services, which commonly be comprized under the generall Name of Socage: For all Lands or Tenements, either they be holden by Knights-Service, or elſe by Socage Tenure, or at leaſt by the Nature of Socage Tenure; which in effect is all one.
Wherefore, firſt we ſhall define what Socage is in the proper ſignification; which done, we ſhall peruſe the other kinds of Services, which be of the nature of Socage Tenure.
SOcage is properly where the Tenant is bound to come with his Yoke; that is,What Socage Tenure is. with his Plow, to Ear, and Sow a parcell of the demeane Lands of his Lord: which ſervice in antient time was very common, but now by the mutuall conſent (both of the Lord and the Tenant) it is converted for the moſt part into a yearly Rent, howbeit the name of Socage abideth ſtill. Wherefore now, all that is not Knights-ſervice, is called by the Name of Socage, ſo that if a man holdeth by Fealty only, or by Fealty and Homage; For all manner of ſervice it is but Socage Tenure: For Homage alone, maketh not Knights-ſervice, as I have ſaid heretofore: He holdeth in effect but by Socage. Gardian in Socage.
Now where a man holdeth his Lands by Socage and dieth, his Heir being within135 the age of fourteen years, the Lord ſhall not have the Ward, but the next of kinne to the Heir, to whom the Heritage cannot diſcend, ſhall have the Title and Wardſhip, as well of the Land as of the Heir, till the Heir come to the age of fourteen years: And ſuch tutor or Gardian, is called Gardian in Socage, and ſhall render accounts to the Heir, of the Iſſues and Profits that he hath received of the Lands, during ſuch time; deducting his reaſonable Coſts and Expences: So that he ſhall not have the Wardſhip to his own uſe and profit, as the Lord which is Gardian in Chivalry hath.
And in caſe the Gardian in Socage dieth before he hath made his account, the Heir is without remedy, becauſe no Writ of account lyeth againſt the Executors, but for the King only.
Finally, Ye ſhall underſtand, that when a Tenant in Socage dieth,Rent. the Lord of whom the Land is held ſhall have Relief; That is to ſay,Diſtreſs. the value of the Rent that is yearly due unto him of the Tenancy, beſide the yearly Rent. So that in effect (after the136 death of his Tenant) he ſhall have of the Heir two Rents, ſave that for the Relief he may diſtrein forthwith; but for the accuſtomed Rent, he cannot diſtrein till the uſuall day of payment become.
TEnant in Frank-Almoign, that is to ſay,The firſt foundation of Frank almoigne. in free Alms, is where a Biſhop, Deane, or any Eccleſiaſticall Perſon holdeth of his Lord in pure and perpetuall Alms: And ſuch Tenure began firſt in old times after this manner. When a man was ſeiſed in atient times of certain Lands or Tenements in his demeſne, as of Fee, and of the ſame Tenements enfeoffed, an Abbot and his Covent, or a Pryer and his Covent, or any other Perſon Eccleſiaſticall; as a Deane of a Colledge, Maſter of an Hoſpitall, and ſuch like; to have and to hold the ſame Lands, to them and to their Succeſſors for ever, in pure and perpetuall Alms, or in137 Frank-almes in theſe two caſes, the Tenements ſhould be holden in Frank-almoigne.
By force of which Tenure, they that hold in Frank-almoigne after this ſort, be bound of right before God, to make Oriſons and Prayer, and to do other Divine Services for the Souls of their Granters and Feoffors, and for the Souls of their Heirs which be dead;Tenant in Frank-almoigne ſhall do Fealty. and for the proſperous Eſtate of them and their Heirs whileſt they be alive; and becauſe of right, they be bound to this Divine ſervice, they be diſcharged by the Law to do any other Prophane or Corporall Service, as Fealty, or ſuch like.
But nevertheleſs ſuch as hold their Tenements in Frank-almoigne, do omit and leave undone theſe Divine ſervices whereunto they be bound before God; the Lord cannot diſtrain them, nor yet compell them by any other means, by the courſe of the Common Law; but the only remedy is, to complain of them to their ordinary, who of right ought to compell ſuch Eccleſiaſticall perſons to do the Divine ſervice due as afore ſaid.
138But here ye ſhall note,Tenant by Divine Service. That if a Parſon of a Church, or any other Eccleſiaſticall Perſon, did before the Statutes of diſſolution of Abbies, Monaſtries, &c. hold of the Lord by certain Divine Service to be done, as to ſing Maſs every Friday, or placebo & dirige, or to find a Prieſts to ſing Maſs, or to diſtribute in Alms 100. pence to a hundred men at ſuch a day;Diſtreſs for Divine Service. in all theſe caſes if ſuch Divine ſervice be undone, the Lord may very well Diſtrain, becauſe the ſervice is here put in certain.
Now as I ſaid before, that if in old time a man did Enfeoffe ſuch Eccleſiaſtiall Perſon, after ſuch ſort he ſhould hold his Lands in Frank-almoigne, but at this day it is otherwiſe, for by reaſon of the Eſtatute called, Quia emptores terrarum Weſtmin. 3. Cap. 1. No man can Alien nor grant Lands or Tenements in Fee-ſimple to hold of himſelf: So that now if a man being ſeized of Lands in Fee-ſimple, granteth the ſame by Licence to an Eccleſiaſticall Perſon in Frank-almoigne; Theſe words Frank-almoigne be void, and the Eccleſiaſticall Perſon ſhall hold them immediately of139 the Lord of the Feoffer, by the ſame ſervices that the Feoffer held; ſo that no man can hold in Frank-almoigne, but by force of a grant made before the ſaid Statute, only the Kings Majeſty excepted, for he is out of the compaſs of the Statute.
Finally ye ſhall note, That whereas a man ſhall hold in Frank-almoigne, his Lord is bound by the Law to acquit him of all manner of ſervice that any other Lord can have or demand out of the ſaid Lands, ſo that if he doth not acquit him but ſuffer him to be diſtrained, then he ſhall have againſt his Lord a certain Writ called a Writ of Meſne,Writ of Meſne. and ſhall recover againſt him his damages and coſts of his Suit.
A Tenure in Burgage is where an antient Borough is of which the King his Lord and they which have Tenements within the ſame Borough,Socage Tenure. held the ſame of the King, paying a certain Yearly Rent, which Tenure in effect is but Socage Tenure, likewiſe it is, whereas any other Lord Spirituall or Temporall, is Lord of ſuch borough.
Here ye ſhall note,Cuſtome. that for the moſt part ſuch antient Boroughs and Towns, have divers Cuſtomes and Uſages which other Towns have not, for ſome Boroughs have a Cuſtome, that the youngeſt Son ſhall Inherit before the Eldeſt, which cuſtome is commonly called Borough Engliſh. Dower by Cuſtome.
Alſo in ſome Borough by the Cuſtome, the Woman ſhall have for her Dowrie, all the Lands and Tenements whereof her Husband was ſeized at any141 time, during the Matrimony and Coverture.
Moreover,Deviſe by Cuſtome of Borough. in ſome Boroughs a man may bequeath or deviſe his Lands or Tenements by Teſtament, at the time of his death, and by force of ſuch deviſe or Legacy, he to whom the bepueſt is made, after the death of the Teſtator, which made ſuch Teſtament, may by force of this Antient Cuſtome, enter into the Land, ſo to him bequeathed or deviſed, without any Livery of Seiſin to him made, or further Ceremony of Law.
Howbeit, how and in what manner a man may at this day deviſe his Lands by his laſt will and Teſtament, by force of a certain new Statute, it ſhall be hereafter declared. Divers other Cuſtomes in England there be, contrary to the courſe of the Common Law, which if they be any thing probable and may ſtand, with reaſon are good and effectuall; notwithſtanding, they be againſt the Common Law.
And note, That no Cuſtome is allowable but ſuch Cuſtome as hath been uſed by Title of preſcription, or time out of mind.
A Tenant in Villinage, is properly when a Villaine, that is to ſay, a bondman holdeth of his Lord whoſe Bondman he is, certain Lands or Tenements according to the Cuſtome of the Manour, or otherwiſe at the will of his Lord, and to do his Lord Villane ſervice, as for to bear and carry the dung of his Lords out of the City, or out of his Lords Manour, and to lay it upon the Demeane Lands of the Lord, or to do ſuch like Service, and Villanies Service: Howbeit, Free-men in ſome places hold their Tenements and Lands of their Lords by Cuſtome, by ſuch ſort of Service, and their Tenure is called Tenure in Villinage, and yet they themſelves be no Villaines, nor of ſervile condition, but Freemen for the Land holden in Villinage, maketh not the Tenant a Villaine; but contrariwiſe, a Villaine may make Free Land to143 be Villaines Land unto his Lord; as if a Villaine purchaſeth Land in Fee-ſimple, or Fee-tayl, the Lord of the Villaine may enter into the Land, ſo purchaſed by his Bondmen, and put him and his Heirs out for ever; and this done, the Lord if he will, may Leaſe the ſame Land to his Villaine, to hold of him in Villenage.
And here ye ſhall underſtand, That Servitude or Villenage is the ordinance, not of the Law of nature, but of that Law which is called jus gentium, by which a man is made ſubject contrary to nature unto another mans Dominion, for he that is a Villaine or Bondman, either he is ſo by Title of preſcription, that is to ſay, he and his Anceſtors have been Villains time out of mind, or elſe he is a Villaine by his own confeſſion in ſome Court of record; ſo that all Villaines either they be born Villaines or elſe they be made ſo, they be born Villaines when their Father being a Bondman himſelf begetteth them in Lawfull Wedlock, either of a Free Woman, or of a Bond Woman, for ſo that the Father be Bond, the Iſſues of him Lawfully begotten, muſt needs be Bond144 by the Laws of England, having no regard to the Condition of the Mother, whereas in the Civill Laws of the Romanes it is clean contrary, for there Pars ſequitur ventrem, that is to ſay, the Servitude or Bondage of the Mother maketh the child Bond, and not the Bondage of the Father. Baſtard.Howbeit, the Baſtard Son of a Bond man ſhall not be Bond, and the reaſon is, becauſe a Baſtard is nullius filius in the Law, that is to ſay, no mans ſonne.
They be made Bondmen or Villaines two waies, either by their own proper act, as when a Free Perſon, being of full age will come into a Court of Record, and there confeſſeth himſelf Bond to another man.
Or elſe by the Laws of Arms, called jus gentium, as when a man is taken priſoner in wars, and is compelled to ſerve and become the Thrall and Bond man of him that took him, the Law calleth ſuch a Perſon a Villaine, that is to ſay, a ſlave and Thrall.
And ye ſhall note,Definition of Villaines. That Villaines be properly called in Latin Servi, becauſe that when they be taken in warre, the Captains be wont not to kill them, but145 to ſell them, and ſo to ſave their lives: So that they be called Servi a ſervendo, that is to ſay, of ſerving: They be called Mancipia a manu capiendo, becauſe they be taken by hand and power of their enemies.
Now as I ſaid by the Law of Nature, we are all born free; but after that, by the Law of of Gentility, ſervitude or bodage did preſs and invade the world, then enſued the bene-of Manumiſſion: Manumiſſion is Quaſi de manu emiſſio, that is to ſay,Manumiſſion. a giving out of the hand or power: For ſo long as a man is in bondage and ſervitude, he is ſubject to the hand and power of another, and when he is Manumiſſed, he is made free and delivered from the ſaid power. So that a Manumiſſion is (to ſay) a Writing, teſtifying that the Lord hath infranchiſed his Villain, and all his off-ſpring and Sequell.
Alſo if the Lord maketh to his bondman an Obligation of a certain ſumme of money,What acts maketh Manumiſſion in Law. or granteth to him by his Deed an Annuity, or yearly Penſion; or leaſeth to him by Deed Lands or Tenements for terme of146 years, any of theſe acts do imploy an Enfranchiſement.
Likewiſe, if the Lord maketh a Feoffment to his Villain, and maketh unto him Livery of ſeiſin, this alſo is an Enfranchiſement, and ſecret Manumiſſion. Briefly to ſpeak, whereſoever the Lord compelleth his Villain, by the courſe of the Law,Cauſes of Infranchiſem. to do that thing that he might otherwiſe enforce him to do or to ſuffer, without the authority and compulſion of the Law, he doth by implication Enfranchiſe his Villain; as if the Lord will bring againſt his Villain an action of debt, an action of account, of Covenant, or of treſpaſs: Theſe and ſuch like be in the eye of the Law Enfranchiſments and Manumiſſions, becauſe that the Lord in all theſe caſes, may have the effect and purpoſe of his ſute; that is to ſay, the Goods, Chattels, and correction of his bondman, without the compulſion of that Law, even by his own proper power and authority which he hath upon his Villain: But if the Lord doth ſue his Villain by an appea of Felony, the Villain being lawfully indicted of the ſame147 before, this is no tacite Manumiſſion or Enfranchiſement; For the Lord, though he have power to beat his Villain, and to ſpoyl him of his goods, yet he cannot by the Law of this Realm put him to death.
Ye ſhall alſo underſtand, that if a mans bondman purchaſe Lands, or acquit, and get unto him any other thing, the Lord may forthwith enter and ſeize the ſame into his own hands. Wherefore if the Lord will bring againſt his Villain a Praecipe quod reddat, by which he demandeth againſt his Villain any Lands or Tenements; this implieth an Enfranchiſement, for as much as he bindeth himſelf to the Preſcript and Authority of the Law, whereas he might uſe his own Authority by entring and ſeizing the ſaid Lands.
Finally, Ye ſhall mark that ſome Villains be called Villains in groſs, and other ſome be called Villains regardant. In groſs, be they of which the Lord is ſeverally ſeized, and not by reaſon of any Lordſhip or Mannour; but they be called regardant, which do belong to a Mannour of which the Lord is ſeized: And the ſaid Villaines have148 been regardant, that is to ſay, exſpectant and attendant time out of mind to the Lord of the ſaid Mannour, in doing unto him ſuch ſervices as to a Villain appertaineth.
THere is alſo a certain kind of Tenure, which is called antient Demeſne; and theſe Tenants which hold by their ſervice be Fee-holders, and by Charter, and not by Copy or Court-Roll, or by the Verge, after the Cuſtom of the Mannour, at the will of the Lord: And theſe Tenants be ſuch as hold of thoſe Mannours which were S. Edwards the King, or which were in the hands of King William the Conqueror; and theſe Mannours be called the antient Demeſnes of the King, or the antient Demeſnes of the Crown of England. And to ſuch Tenants which hold of ſuch Mannours, be many and divers Liberties given and granted by149 the Law; as, to be quit of tolé and paſſage, and ſuch like Impoſitions which be demanded of men for their Goods and Chattels, ſould or bought in Faires and Markets; by them alſo, to be quit and free of Tax and Tollage, granted by Parliament; except that the Kings Majeſty do Tax antient Demeſne (as to him only appertaineth) when he thinketh good, for great and urgent Conſiderations. Tenants alſo of antient Demeſne, ought to be quit of payments to the Expences and Charges of the Knights which came to the Parliament. Alſo they ought not to be impannelled, nor put in Juries and Enqueſts in the County, out of their Mannours or Seigniory of antient Demeſne for the Lands which they hold of ſuch Mannour, unleſs they have other Lands at the Common Law, for which they ought to be charged. And if ſuch Tenants, or any of them; which hold of the Mannour of antient Demeſne bediſtreined, to do unto their Lord other Services or Cuſtomes then they or their Anceſters have uſed to do,Writ of Monſtraverunt. then may they ſue a certain Writ, called a Monſtraverunt, directed to150 the Lord, commanding him that he diſtrein them not for to do other ſervice or Cuſtomes then they have been accuſtomed to do.
And for further knowledg hereof, you ſhall underſtand, that in the Exchequer there is a Book called Doomſ-day; which Book was made in the time of the ſaid S. Edward, and all the Lands that were in the Seiſin, and in the hands of the ſaid S. Edward, at the time of the making of the ſaid Book by antient Demeane.
But the Lands which then were in other mens hands,Frank-fee. though they be written in the ſaid Book, be frank Fee and no antient Demeſne.
Finally, It is to be noted, that Tenants of antient Demeſne ſhall not be impleaded for their ſaid Lands out of the Mannour whereof they ſo hold, and if they be,Abatement. of Writ. they may ſhew the matter and abate the Writ; But if they once Anſwer to the Writ and Judgment given, then the Lands have loſt the nature and benefit of antient Demeſne, and are become frank Fee, that is to ſay, Pleadable at the Common Law for151 evermore. And thus have we ſpoken of the Diverſity of Tenures.
FOr as much as upon every Tenure there is commonly reſerved one Rent or other; therefore I think it good ſomewhat to treat of Rents, but ye muſt underſtand, that there be ſundry ſorts of Rents: There is one kind of Rent which is called Rent-ſervice;Diviſion of Rent-ſervice. another which is called Charge; and the third which is named in French Rent-Secke, that is to ſay in Latine, Redditus ſiccus, a drie Rent. Now Rent-ſervice is ſo called, becauſe it is knit to the Tenure, and is (as it were) a ſervice whereby a man holdeth his Lands or Tenements; or at the leaſt way, when the Rents be unſeverably coupled and knit with the ſervice: As for an example, where the Tenant holdeth his Land of the King, or of any other Lord by Fealty, and by certain152 Rent, or by any other ſorts of ſervices, and by certain Rent; this Rent is called Rent-ſervice. Diſtreſs of common right.And here ye ſhall note, That if this Rent-ſervice be at any time when it ought to be paid, behind and unpaid, the Lord of whom the Land or Tenement is ſo holden, whether it be in fee-ſimple, fee-tayl, for term of life, for years, or at will, may of common right enter and diſtrein for the Rent, though there be no mention at all, nor cauſe of diſtreſs put in the Deed or Leaſe. I ſaid before, that the Nature of this Rent-ſervice is to be coupled and knit to the Tenure; For where no Tenure is, there can be no Rent-ſervice. And therefore if at this day I be ſeized of Lands of Fee-ſimple, and make a Deed of Feoffment of the ſame to another in Fee-ſimple, reſerving by the ſame Deed a Rent; this can be called no Rent-ſervice, becauſe there can be now no Tenure between the Feoffer and the Feoffee; otherwiſe it is of Feoffments in Fee ſimple made before the Statute of Weſtminſter the third, Cap. 1. called Quiae emptores terrarum: For before the making of that Statute, if a man had made a Feoffment in Fee-ſimple;153 reſerving to him a certain Rent, yet though it had been without Deed, here had been begun and Created a new Tenure between the Feoffor and the Feoffee, and the Feoffee ſhould have holden of the Feoffor, who by virtue of the ſame might of Common right have diſtrained for ſuch Rent; but at this day by force of the ſaid Act, there can be no ſuch holding or Tenure Created or begun, and conſequently no Rent-Service can be at this day reſerved, upon any gift in Fee-ſimple, except it be in the Kings caſe, who being chief Lord of all, ever might and may give Lands to be holden of him: thus ye ſee, that at this day no Subject can reſerve any Rent Service unto him, unleſs the reverſion of the Lands or Tenements that he ſhall grant be ſtill in him, as where he granteth them in Fee-tayle, or maketh but a Leaſe for term of life or for certain years, or elſe at Will.
For in all theſe caſes the reverſion of the Fee-ſimple remaineth ſtill in him, and therefore if there be any Rent reſerved, it is to be called a Rent-Service, and is of Common right diſtrainable, though there be no Clauſe of diſtreſs in154 the Deeed of Feoffment or Leaſe.
But here ye will ask me when in the caſe before remembred, a man at this day giveth clean away the Land or Tenement from himſelf in fee-ſimple, ſo that there is no manner of Reverſion of the ſame remaining in him at all, and yet nevertheleſs reſerveth unto him by his deed, a certain Rent, what manner of Rent ſhall this be called, I anſwer, if there be in the Deed indented any clauſe of diſtreſs;Charge. that is, that if the Rent be behind unpaid, it ſhall be Lawfull for the Feoffour to enter and to diſtrain, it is called a Rent-charge, for as much as the Land is charged therewith, but how? of Common Right? no, but only by virtue and force of the wriing, but on the other ſide, if there be no ſuch Clauſe of diſtreſs put in the Indenture, then the Rent ſo reſerved ſhall be called a Rent ſecke.
Likewiſe if a man that is ſeized of certain Land will grant, either by Indenture, or by Deed-poll, that is to ſay, ſingle, and not indented, a Yearly Rent out of the ſame Lands to another, whether it be in the Fee-ſimple, Fee-tayle, for term of Life, for Years, or at Will,155 with Clauſe of diſtreſs, then this Rent is called a Rent-Charge, and he to whom ſuch Rent is granted, may for default of Payment thereof enter and diſtraine.
But contrary, if the grant be made without any ſuch Clauſe of diſtreſs, it is called a Rent-ſeck, that is to ſay, a drie Rent, becauſe he cannot come to it in Caſe it be deemed by way of diſtreſs; Inſomuch, that if he were never ſeized of it, he is by Courſe of the Common Law without remedy, otherwiſe it is of a Rent Charge, for here he to whom the grant is made, when the Rent is behind, may chuſe whether he will ſue a Writ of. Annuity againſt the granter, or diſtrain for the Rent behind, and retain the diſtreſs, till the time he be paid accordingly, but he cannot have both remedies together, but muſt take him to the one, for if he once recover by a Writ of Annuity,Annuity. then is the Land diſcharged, and if he Sue not his Writ of Annuity, but diſtraine for the Arrerages, and the Tenant Sueth a Replevin, whereupon the other anoweth the taking of the diſtreſs in Court of Record, then is the Land charged, and the156 Perſon of the Granter diſchared of the Action of Annuity. Eſtopple.
Ye ſhall underſtand, That if a man will that another ſhall have a Rent-charge, coming out of his Land, and yet will not that his Perſon ſhall be by any means charged by Writ of Annuity, he may then have ſuch Clauſe in the end of his deed,Proviſo. Proviſo quod praeſeus Scriptum, nec quicquam in eo contentum, ullo pacto ſe extendat ad onerandum Perſonam meam, per breve ſeu Actionem de Annuitate, ſed tantum modo valeat ad onerandum Terras, Fundas, & Tenementa mea, de annuo redditu Praedicto. If this or ſuch like Clauſe be added, then the Land is charged, and the Perſon of the Granter is diſcharged.
Alſo if a man will make a Deed of Grant in this wiſe, that if John at Stile be not Yearly paid at the Feaſt of Chriſtmas, for term of his life Twenty Shillings Sterling; that then it ſhall be Lawfull for the ſaid John at Stile, to diſtrain for it in the manner of Dale, this is a good Rent charge, becauſe the mannour is Charged with the Rent, by way of diſtreſs, and yet nevertheleſs, in this Caſe the Perſon of him that made ſuch157 Deed is diſcharged of any Action of Annuity: For as much as he granted not by his Deed any Annuity to the ſaid John at Stile, but only granted that he might diſtrain for ſuch Yearly Rent.
Furthermore ye ſhall note, That if a man hath a Rent-charge to him, and to his Heirs, coming out of certain Lands, and doth Purchaſe any parcell of theſe Lands to him, and to his Heirs, in this Caſe the whole Rent-charge is quenched and gone, and the Annuity alſo,Extinguiſhment. the Cauſe is this, that a Rent-charge cannot be in ſuch Caſe apportioned. Otherwiſe it is of a Rent-Service, as for example; If one which hath a Rent-Service of 20d by Year, doth Purchaſe parcell of the Land, out of which this Yarely Rent of 20d is coming, this ſhall not extinguiſh or drown the whole Rent, but for the parcell only. For Rent Service in ſuch caſe may very well be apportioned, and rated according to the value of the Land. Yet there be ſome ſort of Rents-Services,Rent ſervice cannot be apportioned. which in no wiſe can be apportioned. As where a Tenant holdeth his Land of his Lord, by the ſervice, to render to his Lord158 Yearly at ſuch a Feaſt, a Horſe lading of Gold, a red Roſe, a Gilliver, or ſuch like; If in this caſe the Lord doth Purchaſe parcell of the Land thus of him holden, this Service is gone, becauſe ſuch Service cannot be Severed and apportioned. Alſo Eſcuage is a Service that may be very well apportioned according to the difference and rate of the Land.
But where any Land is holden by Homage and Fealty, if the Lord purchaſe parcell of the Land, yet he ſhall have his Homage and Fealty ſtill of his Tenant.
Ye ſhall mark alſo, That if a man maketh a Leaſe of Land to another for term of life, reſerving to him certain Rent, if in this caſe he granteth that Rent to John at Stile, ſaving to himſelf the Reverſion of the ſaid Land; this Rent is but Rent Seck, becauſe John at Stile that hath the Rent, hath nothing in Reverſion of the Land.
But if he granteth the Reverſion of the Land to John at Noke, for term of life, and the Tenant Atturneth accordingly, then hath John at Noke the Rent, as Rent Service, becauſe he159 hath the Reverſion for term of his life.
Likewiſe it is, If a man giveth Lands or Tenements in tayle,Rent is incident to a reverſion. Reſerving to him, and to his Heirs certain Rent, or maketh a Leaſe of the Land for term of life, Reſerving certain Rent, if he granteth the Reverſion to another, and the Tenant Atturneth accordingly the whole Rent and Service ſhall paſs by this word Reverſion, becauſe the Rent and Service in ſuch caſe be Incident to the Reverſion, and do paſs by the grant of the Reverſion. But if he had Granted the Rent only, it had been Rent Seck.
I Shewed you before, that for a Rent-ſervice if it be behind you may diſtrain in the ground, even of Common right, though there be no ſuch Clauſe of diſtreſs mentioned in the Deed of Feoffment, Grant or Leaſe.
Alſo for a Rent-charge ye may diſtrain or bring your Writ of Annuity at your choice, and election as before is declared. But of a Rent Seck, if you were never ſeized of it, nor of any Parcell thereof, ye be without remedy by courſe of the Common Law, for ye cannot diſtrain for it, nor yet bring your Writ of Annuity, but if you were once ſeized of it, or of Parcell thereof, and it is eft-ſoones behind, then your remedy ſhall be this, ye muſt go either by your ſelf or by your Deputy, to161 the Land or Tenement out of which the Rent is coming,Diſſeiſin of Rent Seck. and there demand the Arrerages of the Rent, which if the Tenant denyeth to pay, this deniall is deſeſin of the Rent. Alſo if the Tenant be not then ready to pay it, this countervaileth a deniall, which is a diſeſin.
Moreover, if neither the Tenant, nor no other man be remaining upon the ground to pay the Rent, when ye demand they Arrerages, this alſo is a deniall in the Law,Aſſize. and is in very deed a diſeiſin. And for theſe diſeiſins you may have an Aſſize of Novel diſeiſin againſt the Tenant, and ſhall recover ſeiſin of the Rent, and the Arrerages, and your Dammages and Coſts of your Writ, and of your Plea. And if after ſuch Recovery and Execution had,In Rediſeiſin double damages. the Rent be again at another time denied you, then you may have a Writ of Rediſeiſin, and ſhall recover your double Dammages.
It ſhall therefore be wiſdom for a man,Therecauſes of diſſeiſin of Rent ſervice. when a Rent is granted by any perſon unto him, to take of the Tenant of the Land, a Penny or half Penny, in name of ſeiſin of the Rent; and then162 if at the next day of payment the Rent be denied him, he may have an Aſſize of Novel diſeiſin; And ye ſhall note, That there be three Cauſes of diſeiſin of Rent-ſervice, that is to wit, Reſcous, Replevin, and Incloſure: Reſcous is, when the Lord upon Land holden of him diſtraineth for his Rent behind, and the diſtreſs be reſcued from him, or if the Lord cometh upon the Land to diſtrein, and the Tenant or any other man for him will not ſuffer him, that is called Reſcous.
Replevin is when the Lord hath diſtrained,Replevin. and Replevin is made of the diſtreſs by Writ, or by Plaint.
Encloſure is where Lands or Tenements be ſo encloſed,Encloſure. that the Lord cannot come within the Lands or Tenements for to diſtrain. And the chief caſe why ſuch things ſo made be diſeiſin to the Lord, is foraſmuch as the Lord is by this way diſturbed of the mean and remedy, whereby he ought to come and have his Rent, that is to wit, by diſtreſs.
And there be four Cauſes of diſeiſin of Rent-charge,Four Cauſes of Diſeiſin of Rent-charged. that is to wit, Recous, Rplevin, Encloſure, and Denier. For163 Denier or deniall, is as well a diſeiſin of a Rent-charge, as it is of a Rent-ſecke. Finally, You ſhall underſtand, that there be two caſes of deſeiſin of Rent-ſecke, that is, deniall and Incloſure.
And it ſeemeth that there is yet another cauſe of diſeiſin of all the three Rents aforeſaid, that is to wit,And two of Rent-ſecke. this when the Lord cometh to the Land holden of him, or when he that hath a Rent-charge, or a Rent-ſecke, cometh to the Land to diſtrain for the Rent behind, or to demand the Rent, and the Tenant hearing this encountreth him, and foreſtalleth him the way, with force and Arms, and menaceth him in ſuch ſort, as he dare not come to the ground for to diſtrain for his Rent behind, for fear of death or mutilation of his members: This is a Diſeiſin becauſe the party is diſturbed of his mean and lawfull remedy, whereby he ought to come to his Rent.
Finally, Ye ſhall obſerve and mark, That by an Act of Parliament made in the 22th year of our Sovereign Lord King Henry 8, it is lawfull for the Executors and Adminiſtrators of Tenants164 in Fee-ſimple, Tenants in Fee-tayl, Tenants for terme of life, of Rent-ſervices, Rent-charges, Rent-Seckes, and of Fee-farmes, for Arrereages of ſuch Rents as were due to the Teſtators in their lives; either to diſtrein for the ſame, or at their Election to bring an Action of debt, except in ſuch Lordſhips in Wales,Diſtreſs or Action of Debt. or in the Marches thereof; whereas the Tenants have uſeed time out of mind, to pay unto every Lord, at his firſt entry into the Lordſhip, any ſumme of Money, for the redemption of all manner of Outcries and Penalties incurred at any time before their Lords entry.
Alſo by force of the ſaid Act, the Husband which was ſeized in the right of his Wife, may after the death of his Wife, either diſtrein or bring an Action of Debt, for the Arrerages of ſuch Rents as were due and unpaid in her life.
Likewiſe it is of him that hath a Rent for the term of another mans life, if he for term of whoſe life he hath the Rent, dieth, yet by vertue of the ſaid Act, he or his Executors and Adminiſtrators, may either diſtrein, or bring an Action165 of Debt for the Arrerages due before the death of him, for term of whoſe he had the Rent.
UPon a Replevin ſued, an Avowry may be made by the Lord, or Conuſance, and Juſtification by his Bayliff or Servant, upon the Land holden of the ſaid Lord, without naming any perſon certain to be Tenant thereof: The like Law is alſo upon every Writ ſued of ſecond deliverance.
In any Replegiare or ſecond deliverance for Rents, Cuſtomes, Services, or dammage Feaſant, if the Avowry, Conuſance, or Juſtification be found for the Defendant, or the Plaintiff be non-ſuit, or otherwiſe barred, the Defendant ſhall recover ſuch Dammages and Coſts, as the Plaintiff ſhould have had, if he had recorded.
166Both Parties ſhall in ſuch Writs have like pleas, aid, prayers, and Joynder in age, as at the Common Law, notwithſtanding this Act,Pleas in Avoury. Pleas of Diſclaymer only excepted. 2 H. 8.19.
ALl Leaſes hereafter, to be made of any Lands, or other Hereditamens by writing indented, under Seal for term of years, or for term of life by any perſons, being of the age of twenty one years; having any eſtate of Inheritance, either in Fee-ſimple, or in Fee-tayl, in their own right, or in the right of their Charges, or Wives, or joyntly with their Wives, ſhall be good and effectual againſt the Leſſors; their Wives, Heirs, and Succeſſors, according to the eſtate comprized in ſuch Indenture of Leaſe. Surrender of the old Leaſe.
This Statue ſhall not extend to any Leaſe to be made of Lands in the hands167 of any Farmer, by force of any old Leaſe, unleſs ſuch old Leaſes expired within a year after the making of the new; nor to any Grant to be made of any Reverſions of Mannours, Lands, &c. nor to any Leaſes of ſuch Mannours, Lands, &c. which have not been lett to Farme, or occupied by Farmers twenty years before ſuch Leaſe made; nor to any Leaſe to be made without impeachment of waſt; nor to any Leaſe to be made for above twenty one years, or three lives from the day of the making thereof; and that upon every ſuch Leaſe, there be reſerved ſo much yearly Rent, as hath been uſually paid for the Lands ſo lett within twenty years next before ſuch Leaſe made, and the Reverſioners of the Mannours, Lands, &c. ſo lett (after the death of ſuch Leſſor or his Heirs) may have ſuch remedy againſt ſuch Leſſee, his Executors, Aſſignes, as ſuch Leſſor might have had againſt ſuch Leſſee.
Provided that all Leaſes made by the Husband of Mannours, Lands,The Wife ſhall be party to the Leaſe. &c. (being the Inheritance of the Wife) ſhall be made by Indenture in the name168 of the Husband and Wife, and ſhe to ſeal to the ſame, and the Rent ſhall be reſerved to the Husband and Wife, and the Heirs of the Wife: And here the Husband ſhall not alien or diſcharge the Rent, or any part thereof longer then during the Coverture, unleſs it be by fine levied by Husband and Wife.
Provided furthermore, that this Act extend not to give liberty to take more Farmes or Leaſes, then might have been taken before this Act (Vide Stat. 25. H. 8.13. Sheepe. ) nor to any Parſon or Vicar to make any Leaſe, otherwiſe then they might have done before.
It is furthermore enacted,What grant by a Corporation is good. that the Grant, Leaſe or gift, or Election, of the Governour or Ruler of any Hoſpitall, Colledge, Deanry, or other corporation, with the aſſent of the more part of ſuch of the ſame as have voice thereunto ſhall be good and effectuall, any Rule or Statute made by any Founder to the contrary notwithſtanding. 32 H. 8.
A Termer for yeares may falſifie a feigned recovery had againſt them in the reverſion, and ſhall retain and enjoy his Term againſt the recoverer, his Heirs and Aſſigns according to his Leaſe.
Alſo the recoverer ſhall have like remedy againſt the termer,Avowry or Action of Debt. his Executors or Aſſigns by Avowry, or Action of debt for Rents and Services reſerved upon ſuch Leaſe, and due after ſuch recovery, and alſo like Action for waſt done after ſuch recovery, as the Leſſor might have had if ſuch recovery had never been.
No Statute of the ſtaple, Statute Merchant, or execution by Elegit, ſhall be avoided by ſuch feigned recovery, but ſuch Tenants ſhall alſo have ſuch remedy to falſifie ſuch recoveries071 as is here provided for the Leſſee for years.
ALl Perſons ſhall duely ſet forth and pay all Tythes and offerings, according to the cuſtome of the places where they grow due.
If Tythes or offerings be not ſo ſet out and paid the party grieved may convent him, that ſo detain them, before the Eccleſiaſticall Judg, who hath power to hear and determine the matter in queſtion Ordinarily or Summarily, according to the Eccleſiaſticall Lawes, and to give ſentence thereupon accordingly.
Here if any of the parties appeale, the Judg upon ſuch appeale ſhall adjudge to the other party reaſonable caſes, and compell the Appealant to ſatisfie them by proceſs and cenſures Eccleſiaſticall171 taking ſurety of the other party, to whom the coſts ſhall be adjudged to reſtore the coſts, in caſe the principall caſe paſs againſt him.
If any Perſon after ſuch ſentence given refuſe to pay Tythes or Summes of Money ſo adjudged, then two juſt of P. (1. Qu.) ſhall upon Certificate thereof from the Judge, commit the Party ſo refuſing the next Goale, there to remain, till he have found Sureties to be bound by Recogniſance, or otherwiſe (before the ſame Judge) to the King to performe the ſaid Sentence.
Howbeit, none ſhall be thereby compelled to pay Tythes for Lands, or other Hereditaments, which by the Laws and Statutes of this Realm are diſcharged, and not chargeable with the payment of Tythes, neither ſhall it extend to the City of London or the Suburbs thereof.
In all caſes, where any Perſon, who hath any Eſtate of Inheritance, Free-hold, Term, right or intereſt in any Parſonage, Vicarage, or other Eccleſiaſticall profit, which now be, or hereafter ſhall be made Temporall, and admitted172 to be, and abide in Temporall hand, and to lay uſes by the Laws and Statutes of this Realm, ſhall happen to be hereafter outed, or otherwiſe wronged from or concerning the ſame, he or ſhe ſhall have remedy for the ſame (in the Kings Temporall Courts, or other Temporall Courts) as the caſe ſhall require, by Writs of precipe quod reddat, Aſſize of novell diſſeiſin, Mordanceſter, quod ei defoveat, Writs of Dower and other Originall Writs, as the caſe ſhall require; in like manner as for Lands, Tenements, and other Hereditaments in ſuch manner to be demanded.
Alſo Writs of Covenant, and other Writs for Fines to be Levied, and all other aſſurances to be had and made of Parſonages, Vicarages, and other profits called Spirituall, ſhall be deviſed and granted in Chancery, as hath been uſed for Fines and Aſſurances of other Land: Likewiſe all Judgements given, and Fines Levied, for, and of ſuch Parſonages, &c. ſhall be of like effect as judgments given and Fines levied of other Lands. 32. H. 8.
NO Spirituall Perſon, his Bayliffe, or Leſſee, ſhall take or demand more for a Mortuary, then as is hereafter expreſſed, nor ſhall convent any Perſon before any Eccleſiaſticall Judge for the recovery of more for the ſame, then as is hereafter declared, in pain to forfeit ſo much as he takes or demands more, and likewiſe 40s. to the party grieved, to be recovered by Action of Debt, wherein no eſſence, &c. ſhall be allowed.
None ſhall take or demand for a Mortuary any thing at all, where (by the Cuſtome) they have not been uſually paid, nor upon the death of a Woman covert, a Child, a Perſon not keeping houſe, a Wayfaring man, one not reſiding in the place where he happens to dye, nor where the goods of the dead Perſon (Debts deducted) amount not to the value of 10. Marks; nor above174 the Summe of 3s. 4d. when they exceed not 30lb. nor above 6s. 8d. when they exceed 30lb. but not 40lb. nor above 10s. when they amount to 40lb. or above. And if the Perſon dye in a place where he or ſhe dwelleth not, their Mortuary ſhall be paid in the place where they had their moſt abode.
This Act ſhall not abridge Spirituall Perſons to receive Legacies bequeathed to them, or to the Kings Altar.
No Mortuaries ſhall be paid in Wales, Callais, or Barwick, or in any of their Marches, ſave only in Wales, and the Marches thereof, where they have been accuſtomed to be paid, and ſuch as are there paid ſhall be regulated according to the order preſcribed by this Act.
The BP of Bangor, Landaff: S. Davids and S. Aſſaph, and the Arch Deacon of Cheſter, ſhall take Mortuaries of the Prieſts within their Juriſdiction, as hath been accuſtomed notwithſtanding his Act.
Leſſe Mortuaris already ſetled by cuſtome ſhall not be increaſed, and there alſo perſons exempted by this Act, ſhall not hereafter be chargeable.
IT is called a Diſcontinuance by the Laws of England, whereby he hath the poſſeſſion of Lands or Tenements, for the time preſent, and yet not haveing the Fee-ſimple in himſelf, nor in his own right only, maketh an Alienation of the ſame to another, by reaſon whereof, he that ſhould have them after him, and which then hath right unto them, cannot enter, but is driven to his remedy by way of Action, in ſuch wiſe, that the ſaid Lands be not utterly ſhifted, &c. gone from ſuch Perſon or Perſons as have right unto them, but be all only diſcontinued for a time, till the Perſon which after the death of ſuch diſcontinuer hath right unto them, do continue and bring them home again, not by entry, but by ſuit and way of action. As for example, a Tenant in tayl of certain Lands, doth Enfeoff170 another in the ſame, in Fee-ſimple, or Fee-tayle, and hath Iſſue, and dyeth, his Iſſue cannot enter into the Lands though he hath Title, and right unto them,Formedon in the deſcender. but is but to his Action, which is called a Formedon in the deſcender. And if ſuch Tenant in tayle which maketh ſuch a Feoffment, hath no Iſſue at time of his death, it is yet nevertheleſſe a diſcontinuance to him, which is either in the reverſion or in the remainder, ſo that neither the one nor the other can enter,Formedon in the reverter or remainder. but be driven to their Action, he in the reverſion of his Formedon in the reverter, and he in the remainder to his Formedon in the remainder.
In like manner if a Biſhop doth alien Lands,Entre ſine aſſenſue Capitali. which be parcell of his Biſhoprick and dyeth, this is a diſcontinuance of his Succeſſor; Forasmuch as he cannot enter, but is driven to his Writ of entre ſine aſſenſu Capitali.
Semblable, if a Deane be ſold ſeized of Lands, in the right of his Deanry, and maketh ſuch an Alienation, this is a diſcontinuance to his Succeſſor. Alſo the Maſter of an Hoſpitall alieneth any Lands of his Hoſpitall, that is a diſcontinuance, and his Succeſſor cannot enter,177 but is put to his Writ,Igreſſu ſine aſſenſu confratrum & ſororum. De ingreſſu ſine aſcenſu confratrum & ſororum.
But if a Parſon or a Vicar of a Church will alien any of his glebe-Lands to another in Fee-ſimple, or Fee-tayl, and dieth, or reſigneth his Benefice, this is no diſcontinuance to his Succeſſor, but he may very well. enter, notwithſtanding ſuch Alienation made by his Predeceſſor. And the higheſt Writ that a Parſon can have, if his Predeceſſor have aliened his Glebe-Land, or loſt it by default, or Reddition, is a Juris utrum. Reddition, that, is voluntarily yielding.And furthermore note, That no Tenant of the Land, can by his or their Act, diſcontinue the right of him in the Reverſion, unleſs it be by Feoffment, with Livery and Seiſin, or elſe by a Releaſe with Warranty.
And note, That ſuch things as paſs by way of Grant by Deed, without Livery and Seiſin, cannnot be diſcontinued, as an Advowſon, Common, or a Villain in Groſs, Reverſion, Rent-charge, Common for Beaſts certain, and ſuch other like.
178And ye ſhall underſtand, That in 32 H. 8. it was enacted that no fine, Feoffment, or other Act, to be made or ſuffered by the Husband only, of any Lands or Tenements being the Inheritance or the Free-hold of his Wife, during the Coverture between them, ſhould be any diſcontinuance thereof, or be prejudiciall, or hurtfull to the ſaid Wife, or to her Heirs, or to ſuch as ſhould have right, title, or intereſt to the ſame by the death of ſuch Wife, but that the ſame Wife and her Heirs, and ſuch other to whom ſuch right ſhould appertain, after her deceaſe may then lawfully enter in all ſuch Lands and Tenements, according to their rights and titles therein.
WHere divers Perſons ſeized of Lands and Hereditaments, as Tenants by the Courteſie of England, or otherwiſe, only for term of life or lives, have heretofore ſuffered other perſons by agreement or covine between them had, to recover the ſame againſt them in the Kings Court, by reaſon whereof they to whom the reverſion or remainder thereof have belonged, have after the deaths of ſuch Tenants been driven to their Actions, for the recontinuance and obtaining the ſaid Lands and Tenements ſo recovered, and ſometimes have been clearly diſherited of the ſame: It is enacted that all ſuch Recoveries hereafter to be had by agreement of the Party, or by covine, or againſt any180 ſuch particular Tenant of Lands or Hereditaments, whereof he is or hereafter ſhall be ſeized as Tenant by the Courteſie of England, Tenant in tayl after poſſibility of iſſue extinct or otherwiſe for term of life, ſhall from henceforth as againſt ſuch perſons to whom the reverſion or remainder ſhall then appertain, and againſt their Heirs and Succeſſors be clearly void. Provided that this Act extend not to any perſon that ſhall by good title recover any Hereditaments without fraud or covine, againſt any ſuch particular Tenant by reaſon of any former right or title, nor to avoid any recovery to be had againſt any ſuch particular Tenant, by the aſſent and agreement of thoſe in the reverſion or remainder, ſo that ſuch aſſent and agreement to appear of record in the Kings Court.
WHere divers perſons have by ſtrength and without title, entered into Lands and Tenements, and wrongfully diſeiſed and diſpoſſeſſed the rightfull owners and poſſeſſors thereof, and ſo being ſeized by diſeiſin have died ſeized thereof, by reaſon of which dying ſeized, the Parties that were ſo diſeized and diſpoſſeſſed, or ſuch other perſons as before ſuch deſcent might have lawfully entered into the ſaid Lands and Tenements, be thereby clearly excluded of their entry into the Land, and put to their Action for their remedy and recovery thereof; It is enacted, that the dying ſeized hereafter, of any ſuch diſeiſour, having no right or title therein, ſhall not be deemed any ſuch diſcent in the Law, as to take away the entry of ſuch perſons, or the182 Heirs, which at the time of the ſame diſcent had good title of entry into the ſame. Except that ſuch diſeiſor had the peaceable poſſeſſion of his Lands or Tenements, whereof he ſhall ſo die ſeized, by the ſpace of five years next after the diſeiſin by him committed without entrie; or continuall claim, by ſuch as have lawfull title thereunto.
SEiſin in a Writ of Right ſhall be within ſixty years before the teſte of the ſame Writ. Limitation of years.
In a Mordanceſter, Coſenage, Ayel, Writ of Entry Sur diſeiſin,Limitation of 50 years. or any other poſſeſſory Action, upon the poſſeſſion of his Anceſter or Predeceſſor, it ſhall be within 50 years before the teſte of the Original of any ſuch Writ.
In a Writ upon the Parties own ſeiſin or poſſeſſion,Limitation of 30 years. it ſhall be within 30 years183 before the teſte of the original of the ſame Writ.
In an Avowry or Cognizance for rent, ſute, or ſervices, of the ſeiſin of his Anceſter, Predeceſſor or his his own, or of any other, whoſe eſtate he pretends to have, it ſhall be within 40 years befor the making ſuch Avowry or Cognizance. Avowry.
Formedons in reverter or remainder, & ſcire facias, upon fines ſhall be ſued within 50 years after the title or cauſe of Action accrued; and not after.
The Party Demandant, Plaintiff, or Avowant, (that upon traverſe or deiner by the other Party) cannot prove actuall poſſeſſion or ſeiſin, within the times above limitted ſhall be for ever after barred in all ſuch Writs, Actions,Barre. Avowries, Cognizance, Preſcription, &c.
Provided that in any of the ſaid Actions,Attaint upon falſe Verdict. Avowries, Preſcriptions, &c. the party grieved may have an Attaint upon a falſe Verdict given.
FInes have their Names, becauſe they make a finall end and determination of all ſutes, ſtrifes, and debates between men. For the due levying whereof, it was enacted in the fourth year of King Henry the ſeventh, That every Fine after the engroſſing, ſhall be proclaimed in the Court the ſame Term, and the three next, four ſeverall daies in every Term, and in the mean time all Pleas ſhall ceaſe.
The Proclamation being ſo made, they ſhall conclude all Perſons both Princes and ſtrangers, except women, covert perſons under age, in priſon, out of the Realm, or of none ſane memory, being not Parties to the Fine.
The right and intereſt that any perſon or perſons (other then Parties) hath or have at the time of the Fine ingroſſed, is ſaved, ſo that they or their Heirs purſue ſuch the r right or intereſt185 by Action or Lawfull entry, within five years after the Proclamations ſo made; ſo alſo is the right and intereſt ſaved, which accrues after the ingroſſing of the Fine, ſo that the parties having the ſame, purſue within five years after it ſo accrues, and in this caſe the Action may be brought againſt the pernor of the profits.
If at the time of the Fine ingroſſed, or of ſuch accruer, as aforeſaid, the perſons be covert (and no parties to the Fine) under age, in priſon, out of the Realm, or of none ſane memory, they or their Heirs, have time to purſue their Actions within five years after ſuch imperfection removed.
The exception that none of the parties, nor any to their uſe, had any thing in the Lands, at the time of the Fine levied, is ſaved to all perſons, except parties and Princes.
Fines at the Common Law have the ſame force that they had before the making of this Act; and a Fine may be levied this way, or at the Common Law, at the pleaſure of the parties. ☜
Furthermore in 32. Year of_____for the avoiding of certain doubts and186 ambiguities, it was enacted that all Fines levied of any perſon or perſons of full age of Lands intailed before the ſame Fine to themſelves, or to any of their Anceſtors in poſſeſſion, reverſion, remainder, or uſe, ſhall immediately after the Fine ingreſſed, and Proclamations made, be a ſufficient barre againſt them and their Heirs, claiming only by ſuch En-tayle, and againſt all others claiming only to their uſe, or to the uſe of any Heir of their bodies.
Howbeit this Act ſhall not barre the intereſt of any perſons accrued by reaſon of any Fine levied by a Woman, after her Husbands death, contrary to the Statute of Ʋ. H. 7.20.
A Fine levied by him who is reſtrained by any expreſs Act of Parliament ſo to do, ſhall be void, notwithſtanding this Act.
This Act ſhall not extend to any Fine heretofore levied, of Lands now in ſuit, or heretofore Lawfully recovered in any court by Judgement or otherwiſe: Nor to any Fine of Lands entayled by the Kings Letters-patents, or any Act of Parliament the reverſion thereof at the time of ſuch fine levied being in the King.
TEſtamentum in Latin is as much to ſay as mentis Teſtatio,Diviſion. that is a Declaration or witneſſing of a mans mind. And there be two ſorts of Teſtaments. The other is called Teſtamentum Scriptum,Written Teſtament. that is a written Teſtament or laſt Will by writing, and the other is called Teſtamentum Nuncupaticum,The Teſtament. Nuncupative a Teſtament Nuncupative, which is when a man doth expreſs by Mouth his laſt Will and Teſtament without writing, by calling before him certain of his Neighbours, in whoſe preſence he doth ſignifie by words of his laſt mind and Will. And this for the moſt part men uſe to do, when for fear of ſuddenneſs of death, they dare not abide the writing of their Will. And this Will (unleſs it be in certain caſes) is as ſtrong and as ſure, as is a Teſtament or laſt Will put in writing, and Sealed with the Seale of the Teſtator.
188Alſo though a Teſtament by writing be not Sealed with the Seale of the Teſtator, yet is the Teſtament good and effectuall in the Law.
And ye ſhall alſo mark, That where a man maketh once his Teſtament and Will, and afterwards maketh another Will by words, if his laſt Will be proved before the Ordinary, and by him put in writing and in ſealed with his Seale, ſuch laſt Will ſhall avoid the firſt Will, unleſs it be in ſpeciall caſes. And ſo alwaies the latter Will and Teſtament ſhall avoid the former.
Finally by an Act made the 21. Year of H. 8. it was ordained, that part of the Executors which take upon them the charge of a Will, may ſell any Land deviſed by the Teſtator to be ſold; albeit the other part which refuſe will not joyn with them.
EXecutor is when a man maketh his Teſtament and laſt Will, and therein nameth the perſon which ſhall execute his Teſtament, then he that is ſo named is his Executor, and ſuch an Executor ſhall have an Action againſt every Debtor of his Teſtator,Aſſets in the hands of the Executors. and if his Executors have Aſſets, that is to ſay, ſufficient in their hands, then ſhall every one to whom the Teſtator was in Debt, have Action againſt the Executor, if he have an Obligation or ſpecialty to ſhew. But in every Cauſe where the Teſtator might wage his Law, there no Action lieth againſt the Executor.
Adminiſtrator is he to whom the Ordinary commiteth, the Adminiſtration and beſtowing the goods of a dead man, for default of an Executor. And Actions ſhall lye againſt him, or for him as for an Executor, and he ſhall be charged202 to the value of the goods of the dead, and not further, if it be not by his falſe Plea, or for that he hath waſted the goods of the dead. But if the Adminiſtrators dye, his Executors be not Adminiſtrators,Executors of his own wrong. but it behoveth the ordinary to commit a new Adminiſtration. Howbeit if a ſtranger, (I mean him that is neither Executor named in the Teſtament, and laſt Will nor yet Adminiſtrator appointed by the ordinary) will take the goods of the dead and Adminiſtrator of his own head and mind, without Lawfull authority, this perſon ſhall be charged and ſued as an Executor, and not as an Adminiſtrator in an Action which is brought againſt him by any Creditor. But if the ordinary make a Letter de colligendum bona defuncti, he that hath ſuch a Letter is not Adminiſtrator, but the Action lieth in this caſe againſt the ordinary, as well as if he took the goods by his own hand, or by the hand of any other his Servant, by any other Commandement.
NOthing ſhall be given for the Probate of a Will or Commiſion of Adminiſtration when the goods of the dead exceed not 5lb. ſave only 6d. to the Regiſter. Nevertheleſs the Judge ſhall not refuſe to prove ſuch a Teſtament being exhibited to him in writing, with Wax ready to be Sealed and proved Communi formâ, but ſhall diſpatch the party without delay.
For the Probate of a Will, and all other things concerning the ſame when the goods of the dead exceed 5lb. but not 40lb. the Judges Fee is 2s. 6d. and the Regiſters 12d. and when they exceed 40. the Judges Fee is 2s. 6d. as before, and the Regiſters as much, or the Regiſter may refuſe the 2s. 6d. and take a penny for every ten lines of the192 Will, each line being conceived to contain ten Inches in length, and for theſe Fees they ſhall diſpatch the party without fruſtratory delay.
Where there is no Will, or the Executors refuſe it, Adminiſtration ought to be committed to the Inteſtates Widow, if he left any, or to the Widow and the next of the Kindred; or in caſe he left no Widow; to one or more of the Kindred; or in caſe they look not after it, to any Creditor or Creditors that deſire it; or (in caſe they alſo neglect it) to any other perſon or perſons, at the deſcretion of the Ordinary, who is enjoyned to take Security of ſuch Adminiſtrators for the due Adminiſtration of the Inteſtates goods.
Nothing ſhall be given for Letters of Adminiſtration, when the Inteſtates goods exceed not 5lb. and when they exceed 5lb. but not 40lb. the Officers Fees are only 2s. 6d.
The Executors or Adminiſtrators (calling to them two or more Creditors, or ſo many of the next of the Kin, or (in their default) two or more neighbours or friends of the dead) ſhall in their preſence, cauſe a true Inventory205 to be made of the goods, and ſhall deliver the ſame in upon Oath, unto the Ordinary indented, whereof one part ſhall remain with the Ordinary, and the other with the Executors and Adminiſtratours.
The Judge or Ordinary ſhall not refuſe to receive an Inventory indented,Inventory of goods. ſo tendered unto him in Court, together with his oath to verifie the ſame.
Lands deviſed to be ſold ſhall not be accounted any of the Teſtators goods.
The Fee for the Copy either of the Will or Inventory, is the ſame with that above allowed for regiſtring the Will, or elſe the Regiſter may take a Penny for every ten lines of the length, as aforeſaid.
The Officer that taketh more then his due Fee, ſhall forfeit that exceſs to the Party grieved, and beſides 10lb to be divided betwixt the King and the ſame party grieved.
This Act ſhall not alter the Cuſtomes, where leſs money hath been for probate of Teſtaments.
The Ordinary may convent Executors to prove the Teſtators Will, and206 to bring in the Inventory as before, notwithſtanding this Act.
EVery perſon having Mannours, Lands, Tenements, or Hereditaments, holden in Soccage, or of the nature of Soccage Tenure, and not having any ſuch Mannours, Lands, &c. holden of the King by Knights-ſervice Soccage, or of the nature of Tenure in chief, Soccage Tenure in chief, nor of any other perſon by Knights-ſervice, ſhall have power to give, diſpoſe, will, and deviſe, as well by his laſt Will and Teſtament in writing, or otherwiſe by any Act executed in his life; all ſuch Mannours, Lands, &c. at his pleaſure. Every perſon having Mannours, Lands, &c. holden of the207 King in Soccage, or of the nature of Soccage in chief; and having any other Mannours, Lands, &c. holden of any other perſon in Soccage, or of the nature of Soccage; and not having any Mannours, Lands, &c. holden of the King, or any other by Knights-ſervice, ſhall have power to give, will, diſpoſe, and deviſe, as well by his laſt Will and Teſtament in writing, as otherwiſe by any Act executed in his life; all ſuch Mannours, Lands, &c. or any of them at his pleaſure.
Howbeit, all ſuch Primer Seiſins, Reliefs, Fines for Alienations, and all other rights and duties for Tenures in Soccage, or in the nature of Soccage in chief, as have been heretofore uſed, are ſaved to the King and the ſaid Mannours, Lands, &c. are to be taken, had and ſued out of the Kings hands, by the perſon or perſons to whom they ſhall be ſo diſpoſed, willed, or deviſed, in like manner as hath been uſed by any Heir or Heirs, before the making of this Statute.
Every perſon having Mannours, Lands, &c. of Eſtate in Inheritance, holden of the King in chief by Knights-ſervice,208 or of the nature of Knights-ſervice in chief, hath power by his laſt Will in writing, or by any other Act executed in his life, to give, diſpoſe, will, or aſſign two parts thereof in three parts to be divided, or elſe ſo much thereof as ſhall amount to the yearly value of two parts thereof in three parts to be divided, in certainty and by ſpeciall diviſions, that it may be known in ſeveralty, for the advancement of his Wife, preferment of his Children, and payment of his debts, or otherwiſe at his pleaſure.
Here alſo the cuſtody, Wardſhip, and Primer Seiſin, or any of them, as the caſe ſhall require, of as much of ſuch Mannours, Lands, &c. as ſhall amount to the clear yearly value of the third part thereof: as alſo all fines for Alienations, upon ſuch alteration of the Free-hold or Inheritance, are ſaved to the King.
Every perſon having Mannours, Lands, &c. of Eſtate of Inheritance, holden of the King in chief by Knight-ſervice, and having other Mannours, Lands, &c. holden of the King, or any other by Knight-ſervice, or otherwiſe,209 hath power to give, diſpoſe, or will, or aſſign by Will in writing, or otherwiſe by Act executed in his life, two parts thereof in three parts to be divided, or ſo much thereof as ſhall amount to the yearly value of two parts thereof, to be ſevered as aforeſaid, for the advancement of his Wife, preferment of his Children, and payment of his Debts, or otherwiſe at his pleaſure.
Here likewiſe the Cuſtody, Wardſhip, Primer Seiſin, and Fines for Alienation are ſaved to the King, as before.
Every perſon having Mannours, Lands, &c. of eſtate of Inheritance, holden of any other Lord by Knight-ſervice, and other Lands in Socage, or of the nature of Socage, may give, diſpoſe, aſſure by will, or otherwiſe, by Act executed in his life, two parts of the Knight-ſervice Land, or ſo much thereof, as ſhall amount to the yearly value of two parts, as aforeſaid; and alſo all the Socage Land at his pleaſure; ſaving to ſuch Lord (for his Cuſtody and Wardſhip) ſo much of the Knight-ſervice210 Land, as ſhall amount to the yearlyly value of the third part thereof.
Every perſon having Mannours, Lands, &c. holden of the King by Knight-ſervice, and not in chief; or any Mannours, Lands, &c. holden of the King by Knight-ſervice, and not in chief, and other Mannours, Lands, &c. holden of any other perſon by Knight-ſervice, and alſo other Mannours, Lands, &c. holden of any other perſon in Soccage, or in the nature of Soccage, may give, diſpoſe, will, deviſe, and aſſure by his laſt Will, or otherwiſe by Act executed in his life, two parts of the ſaid Knight-ſervice Land, or ſo much thereof, as ſhall amount to two parts of the yearly value thereof, as aforeſaid, all the Soccage Land at his will and pleaſure: Howbeit, here alſo the Cuſtody and Wardſhip, of ſo much of the ſaid Knight-ſervice, Mannours, Lands, &c. as ſhall amount to the yearly value of the third part thereof, are ſaved to the King, and other Lords reſpectively; and if the King, or other Lord, have not (in this caſe) a full third part ſet out for them, they111 may (reſpectively) take into their poſſeſſion ſo much of the other two parts, as will make it a full third part.
Provided that all perſons ſhall ſue Liverie for Poſſeſſions, Reverſions, or Remainders, and pay Reliefs and Heriots, as they did before the making of this Act.
Fines for Alienations ſhall be paid in Chancery upon Writs of Entry in the Poſt for common Recoveries, ſuffered of any Mannours, Lands, &c. holden of the King in chief, in like manner, as upon Alienations of ſuch Mannours, Lands, &c. by Fine or Feoffment: Howbeit, no other Fine ſhall be paid there for any ſuch Writs, but only ſuch Fines for Alienations.
Where two or more hold any Mannours, Lands, &c. of the King by Knight-ſervice, joyntly to them and their Heirs of one of them, and he that hath the Inheritance dieth, his Heir being within age, the King ſhall have the Ward and Marriage of ſuch Heir, the life of Free holder or Free holders notwithſtanding: ſaving212 to every Woman her Intereſt of Dower, in ſuch Lands to be aſſigned out of the two parts thereof, ſevered from the third part, as aboveſaid, and not otherwiſe, and ſaving alſo the King the Reverſions of all ſuch Tenants by joynt-Tenure and Dower, after the death of ſuch Tenants, in caſe they happen to die, during the Nonage of the Kings Ward.
ALl Marriages ſhall be adjudged lawfull which are not prohibited by Gods Law. What marriages ſhall be lawfull. Spirituall perſons may marry.32 H. 8.38. All Laws, Canons, Conſtitutions, and Ordinances which prohibit Marriages to ſpirituall Perſons (who by Gods Law may marry) and all forfeitures therein ſhall be void. 2, 3. E. 6.21. Bigamus is Felony.
A Bigamus ſhall ſuffer death213 as a Felon, unleſs he or ſhe have had no notice that the Husband or Wife was living within ſeaven years before, or the Marriage be ſevered by Divorce.
This Felony ſhall cauſe no corruption of blood,Bigamy cauſeth no corruption of blood, &c. or loſs of Dower or inheritance 1 Jac. 11.
VOucher is when a Praecipe quod reddat of Land is brought againſt a man,What Voucher is. and another ought to Warrant the Land to the Tenant, then the Tenant ſhall Vouch him to Warranty, and thereupon he ſhall have a Writ called Summoneas ad Warrantizandum: And if the Sheriff return, that he hath nothing by the which he may be Summoned, then there ſhall go forth a Writ called Sequatur ſub ſuo periculo, and when he cometh, he ſhall plead with the Demandant, and if he come not, or if he come and cannot barre the214 Demandant, then the Demandant ſhall recover the Land againſt the Tenant, and the Tenant ſhall recover as much Land in value againſt the Vouchee, and thereupon ſhall have a Writ called Capias ad valentiam againſt the Vouchee.
WHen any demandeth Land againſt another,A Tenant impleaded voucheth the vouchee denieth the Warranty. and the party that is impleaded Voucheth to Warranty, and the Vouchee denieth his Warranty in this caſe, like as the Tenant ſhould looſe the Land in Demand in caſe where he Vouched, and the Vouchee could diſcharge himſelf of the Warranty: In the ſame wiſe ſhall the Vouchee looſe, in caſe where he denieth his Warranty, and if it be found and tryed againſt him that he is bound to Warranty; And if215 an Enqueſt be depending between the Tenant and the Vouchee, and the Demandant doth deſire a Writ to cauſe the Jury to appear, it ſhall be granted unto him. Weſt. 2.13. Ed. 1.6.
In a Writ of Mortdanceſter, of Coſenage of Ayel, nuper obiit, of Intruſion, and the like, whereby Lands or Tenements are demanded,Counterpleading of Voucher. which ought to diſcend, avert, remaine, or eſcheat, by the death of any Anceſtor, or other wiſe, if the Tenant Vouch to Warranty, and the Demandant counterpleadeth him, and will avert by Aſſize, and by the Country, or otherwiſe, as the Court will award, that the Tenantor his Anceſtor (whoſe Heir he is) was the firſt that entred after the death of him whoſe ſeiſen he demandeth the Averment of the Demandant ſhall be received, if the Tenant will abide thereupon, and if not, be ſhall be further compelled to another anſwer. And in a Writ of right,Voucher in a Writ of right. if the Tenant Vouch to Warranty, and the Demandant will counterplead him, and be ready to averre by the Country, that he that is Vouched, nor his Anceſtors216 had never ſeiſin of the Land, or Tenement demanded Fee, or ſervice by the hands of the Tenant, or his Anceſtors, ſince the time of him whoſe ſeiſin the Demandant declareth, untill the time that the Writ was purchaſed, and the Plea moved; whereby he might have Enfeoffed the Tenant or his Anceſtors, and then ſhall the Averrement of the Demandant be received, if the Tenant will abide thereupon, and if not, the Tenant ſhall be further compelled to another anſwer, Weſt. 1.3. E. 1.39.
And whatſoever Tenant do Vouch, and the Demandant will averre in form aforeſaid, his Averrement ſhall be admitted, whether the party Vouched be abſent or preſent, without any reſpect had thereunto, 20. E. 1. Stat. de vocatis ad Warantum.
In all Writs of Entre which make mention of degrees,Voucher in Writs of Entre. none ſhall Vouch out of the Line, or in other Writs of Entre, where no mention is made of degrees, which Writs ſhall not be maintained but in caſes where the other Writs of degree cannot lye nor hold place, 3. E. 1.39.
217If percaſe the Tenant hath a deed that compriſeth Warranty of another man which is bound in none of the caſes aforeſaid,Warrantia chartae. to Warrantie of an Elder degree, his recovery ſhall be ſaved unto him by a Writ of Warrantia Chartae out of the Chancery, when he will purchaſe it, but the Plea ſhall not be delayed therefore, Weſt. 1.3. E. 1.39.
If the Tenant will Vouch to Warranty a dead man,Voucher of a dead man. and the Demandants will aver, that the Vouchee is dead, or that there is none ſuch, their Averment ſhall be received without more delay, 14. E. 3.18.
If one being impleaded in the City of London do Vouch a forrein to Warranty,One impleaded in London doth Vouch a forrein. the Maior and the Bayliffs, ſhall adjourn the parties before the Juſtices of the Bench at a certain day, and ſhall ſend their Record thither, and the Juſtices ſhall cauſe the Warranter to be ſummoned before them, and ſhall try the Warranty. And the Maior and the Bayliffs ſhall ſurceaſe in the mean time in the matter that dependeth before them by Writ, untill ſuch time as the Warranty be determined before the218 Juſtices of the Bench: And when the matter ſhall be determined, Commandment ſhall be given to the Vouchee to depart into the City, and to anſwer unto the firſt Plea, and the Demandant at his Suit, ſhall have a Writ from the Juſtices of the Bench, unto the Major and Bayliffs, that they ſhall proceed in the Plea: And if the Demandant recover the Tenant ſhall come to the Juſtices of the Bench, and have a Writ to the Major and Bayliffs, that in caſe the Tenant have loſt his Land, they ſhall cauſe it to be extended, and and return the ſame extent unto the Bench at a certain day, and after it ſhall be commanded to the Sheriff of the Shire where the Warranty was Summoned, that he ſhall cauſe the Tenant to have of the Lands of the Warrantor to the like value, and if it fortune that the Tenant make default, at the day that is aſſigned him in the Bench, then ſhall there go forth a Writ from the Juſtices of the Bench to the Major and Bayliffs to ſeize the Land demanded into the Kings hands by Petite Cape, and to Summon the Tenant, that he be at the Huſtings at a certain day, whereat219 the Juſtices ſhall be adviſed to give judgement upon the ſame default, if he cannot ſave it; And if he can ſave it, then the Juſtices ſhall be Certyfied thereof by their Record, and by the ſame record they ſhall plead the Warranty, Clouceſt. 6. E. 1.12. An. 9. E. 1. Articul. Stat. Glouceſt.
None being Vouched to Warranty before the K. Juſt. in Plea of Land or Tenement ſhall be amerced,Day given to him that is Vouched. becauſe he was not preſent when he was Vouched to Warranty, except the firſt day of the coming of the ſame Juſtices. But if he that is Vouched to Warranty be within the County, the Sheriff ſhall be commanded that he ſhall cauſe him to appear with the 3d. or 4th. day according to the diſtance of the places, as the Juſtices in Eire have uſed to do. And if he do remain out of the County, then he ſhall have reaſonable Summons of 15. dayes at the leaſt, according to the Juſtices diſcretion, and the Common Law, Marlb. 52. H. 3.26.
WArranty is in three manners, that is to ſay,Warranty is of three ſorts. Warranty Lineall, and Warranty Collaterall, and which beginneth by Diſſeiſin.
Warranty Lineall is where a man ſeized in Fee,Lineall Warranty. or in tayl, maketh a Feoffment by his deed to another, and bindeth him and his Heirs to Warranty, and hath Iſſue a Son, and dyeth, and the Warranty deſcendeth to his Sonne, that is Lineall Warranty, for that if no deed with Warranty had been made, then the right of the Lands ſhould have deſcended to the Son, as Heir to his Father, and he ſhall convey the diſſent from the Father to the Sonne. But if the Tenant in the tayle diſcontinue the tayle,Collateral Warranty. and hath iſſue and dyeth, and the Unckle of the iſſue releaſeth to the diſcontinued with Warranty, &c. and dyeth without iſſue, this is a Collaterall Warranty to the Iſſue in the tayle, for that221 the Warranty deſcendeth upon the Iſſue, the which may not convey him to the tayle, by mean of his Unckle. And in every caſe where a man demandeth Lands in Fee-tayle by Writ of Formedon, if any Ancenſter of the Iſſue in the tayl which hath poſſeſſion, or which hath not poſſeſſion, maketh a Warranty, and he that ſueth a Writ of Formedon, by poſſibility by matter that may be done, might convey to him Title by force of the gift by him that made the Warranty, &c. That is then a Lineall Warranty, and by ſuch a Lineall Warranty the Iſſue in the tayl ſhall not be barred, except that he have aſſets to him diſcended.
But if be may not by no poſſibility that may be, convey to him Title by force of the gift by him that made the Warranty then that is a Collaterall Warranty, and by ſuch a Collaterall Warranty, the Iſſue in the tayl ſhall be barred without any aſſets. And the cauſe that ſuch a Collaterall Warranty is a barre to the Iſſue in the tayl, is for that that all Warranties before the Statute of Gloceſter, which222 deſcended to them which be Heirs to them which made the Warranties, were barrs to the ſame Heirs to demand any Lands, except the Warranties that began by diſſeiſin, and for that that the ſaid Statute hath ordained, that the Warranty of the Father ſhall be no barr to his Son for the Lands which come to the Heritage of the Mother, nor the Warranty of the Mother ſhall be no barr to the Sonne, for the Lands which come of the Heritage of the Father by the Statute. 11. H. 7. Cap. 20. And none of the Statutes have made or ordained remedy againſt the Warranty that is Collaterall to the Iſſue in the tayle, and therefore the Warranty that is Collaterall to the Iſſue in the tayle, is yet in his force, and ſhall be a barr to the Iſſue in the tayl as it was before the Statute. And it behoveth that all Warranties, whereby the Heir ſhall be barred, that the Warranty deſcended by courſe of the Common Law, to him which is. Heir to him that made the Warranty, or elſe it ſhall be no barre, for if the Tenant in the tayl of Lands in Borough Engliſh, where the youngeſt Sonne ſhall inherit by the223 Cuſtome, diſcontinueth the tayl, and hath Iſſue and Sons, and the Unckle releaſeth to the diſcontinued with Warranty and dyeth, and the younger Son bringeth a Formedon, yet he ſhall not be barred by ſuch Warranty, Cauſâ quâ ſupra. And if any man maketh a Deed with Warranty, whereby his Heir ſhould be barred, and after he that made the Warranty be attaint of Felony, then his Heir ſhall not be barred by ſuch Warranty, for that that ſuch Warranty might not diſcend upon him, for that that the blood is corrupt.
Warranty beginning by diſeiſin, is,Warranty by diſſeiſin. if the Sonne purchaſe Lands, and after let the Lands to his Father for term of years, and the Father by his Deed infeoffeth a ſtranger, and bindeth him and his Heirs to Warranty, and the Father dieth, whereby the Warranty deſcendeth to this Sonne, but the Sonne may well enter notwitſtanding his Warranty, for that that this Warranty begun by diſeſin, when the Father made the Feoffment which was a diſeiſin to the Sonne; And as it is ſaid of the Father, ſo it may be ſaid of every other224 Anceſter. And the ſame Law is, if the Anceſter be Tenant by Eligit, or by Statute Merchant, and make a Feoffment with Warranty, ſuch Warranty ſhall be no Barres, becauſe they begin by diſeiſin.
In Deeds where it is contained,Warranty by dedi & Conceſſi. Dedi & conceſſi tale cenementum, viz. I have given and granted ſuch a Tenement, without Homage or any clauſe that containeth Warranty, and to hold of the Donors and their Heirs by a certain ſervice, the Donors and their heirs be bound to Warranty; and where it is contained Dedi & conceſſi, &c. to hold of the chief Lords of the Fee, or of any other then of the Feoffors, or their Heirs reſerving no ſervice to himſelf, without Homage, or without the aforeſaid clauſe of Warranty, his Heirs ſhall not be bound to Warranty, but the Feoffor by reaſon of his gift ſhall be bound to Warranty during his own life. The Husband doth alien his Wives Lands with Warranty.Stat. de Bigamus. 4 E. 1.6.
If a man alieneth the Land, he holdeth by the Courteſie of England, his Sonne ſhall not be barred by the225 Deed of his Father (from whom no Heritage to him deſcended) to demand and recover by Writ Mortdaunceſter of the ſeiſin of h s Mother, although it be mentioned in the Deed, that his Father did bind him and his Heirs to Warranty. And if any Heritage deſcend to him of his Fathers ſide, then he ſhall be barred for the value of the Heritage that is to him deſcended. And if in ſuch caſe,Aſſets. after the death of his Father, any Inheritance deſcend to him by the ſame Father, then ſhall the Tenant recover againſt him of the Seiſin of his Mother, by a Judiciall Writ, that ſhall iſſue out of the Rolles of the Juſtices before whom the Plea was pleaded, to reſummon his Warranty, as before hath been done in like Caſes, where the Heir of the Warrantor cometh into the Court, ſaying nought deſcended from him, upon whoſe Deed he is vouched; And in like manner, the Iſſue of the Sonne ſhall recover by Writ of Coſenage, Ayel, and Beſaiel. Likewiſe and in like manner the Heir of the Wife ſhall not be barred after the death of his Father226 and Mother, to demand by acttion the Inheritance of his Mother by Writ of Entry, which his Father did Alien in the time of his Mother, whereof no Fine is leavied in the Kings Court. Gui in vita.Glouc. 6 E. 1.3.
(EEBO-TCP ; phase 2, no. A84200)
Transcribed from: (Early English Books Online ; image set 114554)
Images scanned from microfilm: (Thomason Tracts ; 242:E2128[1])
Created by converting TCP files to TEI P5 using tcp2tei.xsl, TEI @ Oxford.
EEBO-TCP is a partnership between the Universities of Michigan and Oxford and the publisher ProQuest to create accurately transcribed and encoded texts based on the image sets published by ProQuest via their Early English Books Online (EEBO) database (http://eebo.chadwyck.com). The general aim of EEBO-TCP is to encode one copy (usually the first edition) of every monographic English-language title published between 1473 and 1700 available in EEBO.
EEBO-TCP aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the Text Encoding Initiative (http://www.tei-c.org).
The EEBO-TCP project was divided into two phases. The 25,363 texts created during Phase 1 of the project have been released into the public domain as of 1 January 2015. Anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source.
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Text selection was based on the New Cambridge Bibliography of English Literature (NCBEL). If an author (or for an anonymous work, the title) appears in NCBEL, then their works are eligible for inclusion. Selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. In general, first editions of a works in English were prioritized, although there are a number of works in other languages, notably Latin and Welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so.
Image sets were sent to external keying companies for transcription and basic encoding. Quality assurance was then carried out by editorial teams in Oxford and Michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet QA standards were returned to the keyers to be redone. After proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. Any remaining illegibles were encoded as <gap>s. Understanding these processes should make clear that, while the overall quality of TCP data is very good, some errors will remain and some readable characters will be marked as illegible. Users should bear in mind that in all likelihood such instances will never have been looked at by a TCP editor.
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