8. that where a third part is left out of such conveyance to be in Ward c. no covin or collusion can be averred for the other two parts disposed of by the Tenant though the covin be found by Office because the intent of the said Statute is that the King and other Lords should be satisfied with a third part which is here left unto him If A. with his proper money purchase land holden c. to himselfe and B. an Infant and their heires this cannot be averrred to be Collusion to avoid wardship Primer sesin after the death within the intent of these Statutes because A. was never sole seised as he ought to be by the provision of these Statutes and no feoffment which A. can make of his moitie can be averred to be Collusion because if no feoffement were no benefit of wardship could acrue person Mort. If the sonne and heire purchase bona side for money his fathers lands holden Re. 10.83 b. Sir Nicholas Strange's case cited in Leon. Lowes case c. this shall not be taken to be a conveyance of Collusion within the Statute of Marleb nor within the Statute of 32. 34. H. 8. to have a third part to the King or other Lords for the wardship because by the third part it cannot be found preferment of him within the meaning of this Statute Marriage THe Tenure of Knights service as it gives the King or the Lord the wardship of the lands of the heire under age so it gives him also the custody of the body of the heire male till his age of 21. years of the heire female if she be under the age of 14. yeares and unmarried at the death of her Ancestor till her age of 16. yeares whereof see before Sect. 6. Reliefe INcident to all manner of Tenures 14. H. 8.45 156. Tenures Br. Reliefes be they King or common person except the Tenure of the King by Fee-farme which therefore yeelds no Reliefe because the Farme or rent thereof is in the judgement of the Law accompted a full value of the Land except Tenures in Franke Allo moigne by divine service and the like But Reliefe is no service whereby the land is holden Co. 3. Penants case fo 66. Lit. fo 28. b. but a profit or approvement of the services as a blossome falne from a tree and it is due immediately upon the death of the Ancestor The Reason why it is payed as also the name thereof is given by Brooke thus Cum homagio facta fuerit fidelit Succ. abillis cum plenitat existent oportet statim quod Tenem quod fuit in manibus Antecessoris haereditas qui jacens fuerit eorum decessum relevatur in manibus habend propter talem Relevationem fasiend orit ab heredibus prestatio qui dicitur relevin This excludes all purohasers from paying Reliefe as hee saith also in another place Dabit Relevin qui succedat juri hereditario non qui acquiret Brac. fo a. 11. H. 8.422 22. Ed. 4. Reliefe 8. And with this agreeth the current of our bookes now at this day and common experience and this also excludes inheritances which goe in succession and therefore all Corporations because they never die so that their land descend not pay no Reliefe Bro. Reliefe 9. 3. H. 4 2. because the successor hath not the land Jure hereditario but by prescription a Corporation may pay no Reliefe the heire ought to be of full age at the death of his Ancestor or else he is not to pay any Reliefe Lit. fo 24. a. b. Mag. Cart. c. 3. as appeareth by Br. and by all other bookes and the full age for this purpose as of the heire male of Tenant by Knights service 15.21 of his heire female 14 as also of the heire of the Tenant in Soccoge his age of 14. hence it is plaine that where the Lord hath the wardship of the heire of his Tenant that at the full age of the heire hee shall have no reliefe And this is true although the Lord hath only the land in ward and not the body whereof if the Lord hath by the priority the body and the land holden of himselfe in ward the other Lords by posteriority at the full age of the heire shall have no reliefe because they had every of them the land holden of themselves in ward But where the heire is left under age and the case is so Inst 83. b. Stam. prae 96. 24. E. 3.14 Vet. Na. Br. 93. a. that the Lords of whom the lands descend is holden cannot have the land in Ward there at the heires full age he shall pay reliefe to such Lord as where a man holds his land of the King by Knights service in Capite and of other Lords by Knights service and dies his heire being under age and the King seiseth the wardship and all his lands which he holds of others the heire at his full age is to pay reliefe to the other Lords because they had no lands in Ward The reliefe for a Knights fee of lands holden by Knights service in Capite Inst 83. b. Lit. fo 24. b s. 112. Coo. 7. Nevills case 33. b. t. is the fourth part of the value thereof viz. 5. li. for a whole Knights fee being anciently valued but at 20. li. per annum And so after the same proportion for a greater and lesser quantity whereof see before in Tenures Of land holden by grand Sergeancy Lit. fo 35. the reliefe payable to the King is the value of the land by the yeare above all charges and reprises The remedy for a subject to get his reliefe is to destraine for it 7. H. 6.13 Inst 83. a. if it be not had in the life of the Lord his Executors remedy is an action of debt against the heire In the Kings case where reliefe is due to him the use is in the writ of Livery to the heire and directed to the Escheator to command him to take surety of the heire for payment of the reliefe but hee seldome or never doth the same but them of the Exchequer to whom the charge in this kinde belongs upon record of the Livery send out summons against the Tenant for the said Reliefe and upon the Sheriffes Return of Nihil c. Proces of Extent for the same Of Livery IF after the death of the Kings Tenant in Capite his heire enter into the land to him descended before he doth his homage and hath received his seisin from the King he is by law an intruder upon the Kings possession and shall forfeit all the profits of such lands to the King from the time of his intrusion untill he have sued out the Livery and hath no freehold of the land in him 3. H. 7.2 Stam. prae Rs. fo 12.14 b. insomuch that he can neither make a feoffement nor other disposition thereof nor shall his wife bee endowed thereof but for
restitution therunto and the profits thereof he is driven to sue to the King for his speciall grace and pardon To prevent which penalties the Law requireth that the heire doe at times therefore by the Law appointed sue to the King to have such lands re-delivered unto him by his highnesse They cannot seize before the office which is called in Law saving of Livery till which be done the Escheator in the County where the land lies may to the Kings use seise and take the whole profits of the land Coo. 9. Sir Geo. Reinolds case 95. b. Coo. 8. Hales Case 172. b. which notwithstanding is not used to be done till office be found and then the King is in possession without seisure and is to be answered of all profits since his Tenants death till Livery sued forth then he doth his homage and hath the land delivered unto him out of the Kings hands and paieth the King his Primer seisin whereof see before in the last Title But because to your suing of Livery many things are to be done with great care Coo. 8. Hales Case 172. b. and still the Lord gives the heire 6.3 moneths time for the prosecuting thereof if the heire at his full age having been in Ward or at the death of his ancestors if he after his full age tender his Livery and pursue it with effect he shall have as much benefit by his tender as if he had done homage and had sued his Livery And therefore if the heire after the tender dies within the said 6.3 moneths Coo. 9. Holts Case 132. so that the prosecution of the Livery is become impossible by the act of God In providentia excusat legem and the interest of the King to Primer seisin is determined as if he had taken homage of the heire when he made his tender but the meane rates if any were forfeited are not discharged And so for the same reason the heire after such tender may bargain and sell or make other disposition of the land and the same is good in law if he die within the said 6. moneths Instructions by the new institutions the sur veon and hath as much power over it as if he had sued his Livery this tender at 6. moneths end is used to be continued over for 6. more and so from 6. moneths to 6. moneths as long as the Master of the Wards shall give leave and in the meane time the heire hath like benefit thereof as if he had sued his Livery Livery shall not be sued but where the Kings Tenant dyed seised of lands holden by Knights service in Capite Inst 77. a. or Soccage in Capite If the Tenure be Knights service in Capite Stat. Marleb ca. 16. viz. F. N B. 61. the King hath the same prerogative for his Livery that he hath in case of Wardship whereof see before to have a Livery sued of lands holden by his Tenant of others either by Knights service or Soccage or for lands which he hath in Ward by reason of Ward or that are holden of his Tenants or that are holden of a Bishop by a Tenant that dyeth while the temporalties of a Bishoprick are in the Kings hands But if the Tenure be in Soccage in Capite 4. El. Dy. 113. F. N. B. 256. b. 32. H. 8 Br. Gard. 97. 45. E. 3.19 35. H. 8.6.52 F. N B 259. Inst 77. the King as he shall have primer seisin and a Livery to be sued of no other lands holden by his Tenant of others besides the land holden by Soccage in Capite so also the heire of such Tenant shall not sue Livery nor pay primer seisin if at the death of his ancestor he bee under the age of 14. but in every of these cases they to whom the body belongeth shall have an Ouster le maine una cum exitibus viz. the Lord of whom the lands are holden by Knights service And here in the last case 20. Eliz. Dyer 362. howbeit when he attaines his full age of 14. yeares hee must sue Livery or else shall lose the meane rates But bee the heire of the Tenant by Knights service in Capite under age at the death of his ancestor West 1. cap. 22. St. 39 H 6. ca. 2. a. Stam. prae Rs. 13. yet at his full age he shall sue Livery although he hath been in Ward as well as though he had been of full age at the death of his ancestor though with some difference for the primer seisin as appears Title Primer seisin The time after the death of the Kings Tenant for his heire to sue Livery is of lands in question holden by Knights service in Capite be the heire in Ward and then comes to full age or be of full age at his ancestors death then viz. the heire male at 21. the heire female above 14. at the death of the ancestor then if the possession of the free-hold doe descend immediately after the ancestors death to the heire the Livery is to be sued forthwith If only a reversion doe descend then not till after the death of the particular Tenant if it be a reversion without rent incident thereunto howbeit the heire at this day hath election either to sue immediately in the life of the particular Tenant paving for Primer feisin but halfe a yeares value or to tarry till after his death Inst 77. a. Dyer 14. Eliz. 308. b. and then to sue it and pay a whole yeares value of the land but if it be in reversion with a rent incident thereunto and he sueth out his Livery in the life of the Tenant he may doe so and shall pay for Primer seisin but one yeares value of the rent And the time of the heire of Tenant by Soccage in Capite to sue Livery is Coo. 9. Hales case 132. b. Re. 9.81 Leon. Lowes case immediatly upon the death of the Ancestor with the same observation of possession or Reversion as is for the heire of the Tenant by Knights service in Capite if he be above 14. years of age at the death of his ancestor and if hee be under then hee is to sue no Livery till he be 21. yeares as is afore shewed But the time which the law hath appointed for Soccage of Livery may by Accident be altered or changed Co. Re. 9.173 Sir Hen. Constables case Coo. Re. 6.74 Sir Dru Druries case as where the sonne and heire is a Knight in the life of his father and his father dies before he be of full age his Livery must be sued or tendred immediatly on his fathers death and before his full age because the King by Knighting him hath adjudged him of full age So in diebus illis if the father had entred into Religion his heire being of full age his heire should have sued Livery presently and should not have expected his fathers naturall death No Livery can be sued of lands above the yearely value of 5.
li. before office found before the Eschator or other Commissioners Stat. 33. H. 8. cap. 22. 14. Ed. 4.5 by vertue of the Kings Writ or Commission derected out of the Chancerie or other Courts that have authority to make such writs or Commissions for suing of Livery But Livery of lands under the yearely value of 5. li. may be by warrant made from the Court of Wards and Liveries be sued forth St. 33. H. 8. c. 22 although there had been thereof no office returned The reason of this is F.N.B. 253. Ib. in Stam. 52. that the King may be certainely informed by matter of Record who shall be his Tenant and whom he ought to make Tenant and this cannot be but upon an office or by a speciall Writ or Commission in nature of that Writ or Commission to enquire of all wards or the like And these Writs or Commissions are of two sorts These of the first sort are to enquire after the death of the Ancestor of what lands holden of the King 14. Ed. 4.5 or of others the Ancestor was seised at the time of his death the value the day when he died who is next heire and of what age of this kind are diem claus extremum which is sued within a year after the ancestors death Memorandum Stam. prae Rs. 52. F.N.B. 253. c. if there be no suite made within the yeare after the ancestors death and upon these writs the Jury ought to enquire who tooke the profits since his death Deneverunt Ibidem whether the Ancestor died in ward to the King Or Commissions of the nature of these Writs These of the second sort are such as issue upon some defect in offices and found upon the five first writs of this kind are Qua plura F.N.B. 255. where some of the Ancestors lands are left out Melius inquirendum Inquired upon some defect in the former office But if the heire were of full age at his Ancestors death and so found by office then he shall have Livery upon that office without any estate probanda Datum est nobis intelligi where after the delivery of the writ and before office found before the Escheator dieth or is removed from his place But now these Writs or Commissions since the erecting of the Court of Wards may passe out of the Chancery or other Courts having authority to make them Stat. 33. H. 8. cap. 22. by warrant or bill signed and subscribed by the Master Surveyor Atturney and receiver of the Court of Wards or one of them directed to the chancellor of England or other chancellor or officer having power to award such writs if upon office found upon any of these writs the heire be found under age and in ward after do accomplish his full age F.N.B. 254. a. 257. he must have a writ of Estate probanda to prove himselfe of full age before he shall have Livery But if the Tenant be found within age 13. H. 4.6 in ward and after his full age other lands descend to him which the King seiseth by an office that finds the heire of full age he must sue an estate probanda by reason of that office which found him within age which is the best Record for the King If generall Livery or Ouster le maine be not rightly pursued according to the order of Law Stam. prae Rs. 12. a. infra title Ouster le main the King may receive the land without any processe and shall be answered of all the meane profits from the suing of the Livery A livery is not rightly pursued according to the order of law when it is sued by percells 35. H. 6. Liv. 19 as if the heire sue Livery but of part of that which is found by office as where the Ancestor had lands in severall counties if the heire sue a generall Livery before office found in every county where he hath land omitting them in the Livery the Livery is void and the King may have reliefe whereof see a whole Title in Stamf. Praerog Regis fo 8.6 c. But in some case a Liverie may be sued of parcell 38. H. 6.9 a. as where land discends to two daughters one of the full age the other under age shee of the full age shall have the Livery with a partition sutable of all things and this Livery is well sued though it be not of all the land descended but things not severable as advowsons or the like must still remaine in the Kings hands till the other daughter be of full age And note Stam. prae Rs. ca. 5. fo 22. that between Coparceners the King upon the Livery alwayes makes partition and this is for the Kings benefit in that upon partition every one shall have a part of the land holden in Capite for if any of them should have for her part the lands holden of others only then the King shall lose his prerogative in that part for ever wherefore in the writ of Livery in such case there is a proviso that every of them should have for part parcell of the lands holden in Capite When two are found heires by one Title 1. H. 7.28 be they twins male and found heire by the same office divers men by severall offices are found heires to the same ancestor and by the same title there because it is doubtfull to the King to whom to make a Livery untill the certainty and the verity be discust betweene them then his highnesse ought to make a Livery to him that is proved to bee the true heire to the common ancestor the manner of this triall is by Interpleader and in what cases it shall be and in what not you may see at large in Stamf. prae Rs. fol. 51. 65. 66. b. The manner of suing a generall Livery may be seen in N. B. 258. viz. Samf prae Rs. 79. 80. and for this purpose see also the Statute 33. H. 8. c. 22. But at this day generall Liveries are out of use Stam. prae Rs. 67.2 Inst 77. a. and for the most part men use to sue speciall Liveries which contain in them a pardon for all entries intrusions issues profits and likewise to dispense with all misusings which may happen upon a generall Livery c. But these bookes must be understood where the lands are found in the office to be above 20. li. yearely value for otherwise generall Liveries are most in use Thus speak our books but by the common experience of the Court of wards and liveries since the Stat. of 33. H. 8. c. 2. are distinguisht and sued in this manner viz. A generall Livery under value which is when the land whereof Livery is to be sued is found by the office not to exceed 5. li. per annum and the lesse fees are appointed by the said Statute for the suing forth thereof A generall Livery above value viz. when the land is found by
office to be above 5. li. yearely value and under twentie pounds per annum and then greater fees are allowed by the said Statute and upon suing either of those Liveries no other Primer seisin is payed then the meane profits of the lands inured from the ancestors death to the suing of the Livery according to the description thereof by the Stat. Prae. Rs. cap. 3. See before Title Primer seisin which meane profits may also be saved by tender of the Livery and so the King hath nothing for Primer seisin And lastly a speciall Livery which the Court of Wards sayes ought not to bee sued unlesse the land be above the yearely value of 20. li. found by office and if a man will sue a speciall Livery for lands of a lesse value he must confesse his land to be above that value Howbeit the law is taken otherwise in our bookes where mention is of a speciall Livery without speaking of the value of the land and reason proves it may be so called because it containes a speciall pardon of all entry intrusions meane rates c. which may well be granted upon a lesser quantitie of lands as upon a greater and upon this speciall Livery no primer sesin other than the said meane profits is taken by the name of a primer seisin but they use to take a sum of money to the Kings use by the name of a fine for his Maiesties speciall grace and pardon vouchsafed to his Majesties Subjects by the faid speciall liveries to be sued of and in possession and the heire hath not him in ward or if the livery be so sued of and in possession and the heire hath not beene in ward or if the livery be to be sued of a Reversion halfe a yeares value which agreeth by the common proportion above in the bookes named primer sesin and upon tender of any of these Liveries they shall use to take a bond for that shall be due to the King upon Livery sued for feare of the heires death within sixe moneths before the Livery sued out and note that a speciall Livery gives the heire licence to enter and take the profits of the lands immediatly without suing any writ of aetate probanda as if a Livery had been thereof sued and pardons all issues meane rates and profits of the lands but yet the same are paied before he can have such livery and pardons all entries and entrasions by the heire or any his Ancestors and fines for alienations without licence and yet they of the Exchequer notwithstanding such Livety use to send processe to the Sheriffe to seise the land after such alienation and to compell the heire to pay a fine and to sue a pardon for such alienation without licence so that the benefit of a speciall livery above a generall as I conceive is little other than that the heire thereby avoids the trouble and charge of suing his writ de aetate probanda and prevent the danger of misusing his Livery and by consequence the reseising of this land without great inconveniences they appeare in part in this Title and more amply Praerog Rs. fo 19. 80 81. c. Ouster le maine Is in all other cases where Liveries is not to be sued as where the Land is holden to be in common Knights Service of the King as of some Honour Mannor Castle c. and the heire within age no Livery shall be sued and yet because no man may enter upon the Kings possession without his leave the heire at his full age shall sue an Ouster le main cum exitibus but in the first yeare of Queene Elizabeth Inst fo 77. a. 1. Eliz. Dyer 168. a. it was questioned in the Court of Wards whether it should be a Livery Cum exitibus or an Ouster le maine and there agreed that Ouster le maine is onely of Lands in the Kings hands holden of others then of the King but yet ordered that a Livery in this case una cum exitibus should be granted by the name of Ouster le maine because the course of that Court was so by the space of 30. yeares before where note that no meane rates shall be forfeited for land holden of the King by common Knights service though there be no tander of Livery which is the reason why Ouster le maine is granted cum exitibus So if the Escheator claime land by vertue of dying c. before office Stat. de Eschetor mode 29. E. 1. and after by the office no title is found for the King the partie that ought to have againe the land shall have an Ouster le main cum exitibus So if the Eschetor will seise land found by office to be holden of the Archbishop of Canterbury or of such other person as are exempt in the first Chapter of the Statute deprae Rs. they shall have an Ouster le main cum exitibus So of lands holdan in Capite if a Lease be made for life the Remainder over to a stranger and Tenant for life dies this matter being found by Office if the King seise the Land he in the Ramainder shall have an Ouster le main cum exitibus So where two hold land joyntly of the King in Capite F. N. B. 257. g. and one dyeth and the matter is found by office which notwithstanding the King seiseth the land the Survivor shall have an Ouster le main cum exitibus So if the heire of Tenant in Soccage in Capite be under the age of fourteene yeares at his ancestors death 35. H. 6.52 F. N. B. 256. c. Stam. prae 12. b. and the matter is found by office and yet the Escheator seiseth the land for a primer seisin le procheine de kinne to the heire shall have an Ouster le maine cum exitibus but yet in that case after the 14. the Escheator may seise and the heire must have Livery and for want of tender thereof he shall lose meane rates from his age of 14. So if Tenant by Soccage in Capite die also seised of other lands holden of other Lords then of the King by Knights service or Soccage 45. Ed. 3.19 a. 4. Eliz. Dyer 213. which descend to the heire under age and after office thereof found the Escheator seiseth the lands into the Kings hands the Lord of whom the land is holden by Knights service in the one case and procheine kinne in the other case shall have the lands out of the Kings hands by Ouster le maine cum exitibus And if the heire be of full age at his Ancestors death he himselfe in both cases shall have the Ouster le maine And generally in all cases whereupon the matter is discust Stam. prae Rs. fo 77.6 et 82. 21. H. 7.5 29. Ass 43. it appeareth either upon the returne of the office or upon trover monstrous de droit ou petition de droit and the like as the cause shall require that the King had no right or
E. 4.12 Stam. prerog Rs. fo 8. are incident not only Ward Marriage Primer seisin Reliefe Livery and Licence to alien but also Prerogative to Wardships and Primer seisin of all other Lands holden of common persons in Knights service or in Soccage and of all other services whereof the Tenant in Capite dyed sole seised in Fee and Fee taile in his owne Right or in the Right of his wife in Possession Reversion Remainder or in Right which descended to the Kings Ward and not to any other customary heire 12. Ed. 4.18 as the younger sons in Gavellkindes c. Except the Lands holden of the Archbishop of Canterbury the Bishop of Duresme between Tyne and Tese and the Lords of the Marches where the Kings writs runneth not which they had in Anno 17. Ed. 2. 17. Ed. 2. Meues case 133. Sta. 17. Ed. 2. Stam. pre Rs. 7. b. 6. H. 2. Gard. 105. But the body is not wherefore the King shall have that against all men but the King shall have no Prerogative in the Lands of the second Ward which he hath by reason of Ward as where one that held of the Kings Ward was never seised of those Lands nor of the service they were holden by And the meane Lords whose Fees the King hath in Ward by his Prerogative shall have their Rents by which such Lands were holden during the Minority payed to them by the Kings Officers appointed to receive the profits of the Land holden of the other Lord upon request and tender of an Acquittance to the said Officers As by this Tenure the King hath Prerogative in case of Ward so also he hath the like Prerogative of Primer seisin which see after Title Seisin Soccage in Capite THE Tenure is described in the last Title Coo. 6. p. Wheelers case 7. the service that this Tenure is knowne by is generally where the Tenant holds by certaine services not by knights service for all manner of services as Tenend de nobis per fidelitatem tantum or by homage and Fealty or by Fealty and rent or by homage fealty and rent or by a red Rose or the like pro omnibus servitiis and although in the last example nothing be said of Fealty Lit. fo 36. a. yet it is implyed by the Law as incident to all manner of services More speciall soccage in Capite is petty Sergeancy which is where a man is bound by his Tenure to render yearely to the King a Bow a Sword Gauntlet or such like small matter touching the War To Soccage in Capite are incident Stam. praer Rs. cap. 3. fo 13. b. Reliefe Primer seisin and Livery and licence to alien whereof in these small Titles Common Knights service of the King IT is where land is holden of the King as of some Honour Castle or Mannor per servitium militar expresly or implyedly by construction of Law upon ambiguous words This Tenure gives the King Ward Marriage Reliefe Livery but no Primer seisin nor licence to alien nor hath the King hereby any prerogative to have other lands holden by the Kings Tenant of common persons into Wardship But yet the King shall by his prerogative have the Mariage of such Ward of whom soever he holdeth besides Stam. praer Rs. fo 10. 24. Ed. 3.31.6.5 though his Tenant were enfeoffed of the lands holden of his Maiesty after he was enfeoffed of his lands holden of others without respect of the priority of feoffement which alwayes prevailes amongst meane Lords whereof more fully afterwards in Title Marriage Common Soccage of the King IS where Land is holden of the King as of some Honour Castle or Mannor by the services mentioned supra Title Soccage in Capite This Tenure yeelds a Reliefe but no Wardship to the King Marriage Primer seisin c. Ward THe Tenure by Knights service had his originall Creation for the defence of the Kingdome Lit. fo 20. binding the Tenant to serve the King or other Lord to whom he is Tenant in the Kings warres for a certain time to the quantity of his Terme and therefore that the Common-wealth should not be unserved the Law gives the King Lit. fo 22. or the other Lord custody of the heire Male of such Tcnant being under age of one and twenty yeares at the death of his Ancestor together with the profits of his Land till the same age And of the heire Female Lit. fo 22. under the age of fourteen yeares at the death of her Ancestor and unmarryed together with the profits of her Land untill her age of sixteen to the end that he may provide himself of a man able to doe him Knights service But if the heire Female be marryed at the death of her Ancestor then her Land only shall be in Ward but till her age of fourteen yeares because those two yeares after fourteen are given only to make tender of her marriage which is already done And if at her Ancestors death she be fourteen yeares old Lit. fo 22. Bro. Gard. 86. Ac. 35. H. 6.52 then there shall be no Wardship neither of her body nor Lands because at that age shee may have a husband able to doe Knights service and that is her full age to be out of the Ward by the Common Law 35. H. 6.54 and the other two yeares are given in favour of the Lord. But when lands that are holden of the king or other Lord descend to an heire male or female in the life of the father from some other ancestor as from the grandfather c. of the mothers side the mother being dead Lit. fo 25. Coo. 3. Ratch case 38. Coo. 6. Re. Ambrosia Gorges case 22.22.6 re N. B 143. o. Lit. fo 114. though the Lord shall have the Wardship of the land yet the law of nature gives the father the Wardship of the body of such heire with this difference in case of an heire female that he shall have the Wardship of her body till he have a son and then the Lord shall have it because by the birth of the son he is become heire apparent and this priviledge is given to the Father but for his heire apparent which now she is not in those cases the grandfather shall not have the Wardship of his grand-childe if his father be dead touching the kings prerogative to have Wardships of his lands that his Tenant by knights service in Capite held of another Lord See before Title Tenure in Capite by knights service and more in Stamf. exposition of the kings prerogative cap. 1. So the essence of Wardships is requisite that the Tenant die sole seised of lands in possession Remainder or Reversion or in right holden in knights service and a descent to their heire for if men be joyntly seised in fee or in fee tayle and one of them die his heire under age he shall not be in Ward because the Lord hath his Tenant alive viz. the Survivor who
hath the whole and by Title of Survivorship And therefore if I. D. for money by him disbursed Coo. Knights case 163. purchase lands to himselfe and others and their heires this is holden collusion within the Statute 34. H. 8. ca. 5. to avoid Wardship which may accrewe after the death of I. D. because he was never sole seised Coo. 9. Flopirs case 126. a. b. and so no title of Wardship could be after his death because of the Survivor Coo. 9. Flopirs case 126. a. b. But where to be joyntly seised of lands holden of the king in possession and not in remainder to them and the heires of the body of one of them and he that hath the inheritance dyeth his heire deins age the king shall have the Wardship and Marriage of such heire notwithstanding the Survivorship of the other Tenant And this is provided by the other Statute of 32. H. 8.17 in case of the king only and therefore in such case if the lands were holden of a common person there would be no wardship during all the life of the Survivor Ward where the Tenant dyeth seised of land in the very possession thereof by taking the profits c. This admits no difficulty and therefore in vaine to multiply cases thereof He in the Remainder upon an estate for life Coo. 2. Binghams 92. b. 33. H. 6.5 24. Ed. 3.33 B. Na. Br. 142. b Coo. 2. Binghams case 92. b. Coo. 9. Quicks case 129. b. Vet. Na. Br. Bro. Gard. 113. 4. H. 6.20 20. Eliz. Dy. 362. a. is not Tenant to the Lord untill the Remainder happen in possession and therefore if a man maketh a lease for life the Remainder to another in fee and he in the Remainder dies his heire being within age here during the life of the Tenant for life the heire of him in the Remainder shall not be in ward because the impediment is not removed but in that case if after the discent of the Remainder and before the death of the Tenant for life the Lord grant away his Seigniory and after the Tenant for life dies the heire of him in Remainder being under age neither the grantor nor the grantee of the Seigniory shall have him in ward If the Tenant make a gift in tayle the Remainder over in fee to another 4. H. 6.10 here the Tenant in tayle holds immediately of the chiefe Lord and he die his heire under age he shall be in ward to the chiefe Lord and so shall the heire of him in remainder in fee if the Tenant in tayle die without issue during the minority of the heire of him in the remainder because the impediment is removed by death But if an estate tayle be made of lands holden of a common person the remainder in fee to the King the Tenant in taile die his issue under age he shall be ward to no body because the Tenure and services are extinct by the fee simple being in the King who can hold of none And the estate of Tenant in tayle and the remainder over maketh both but one estate If the Tenant make a lease for life Vid. Na. Br. B. Gard. 113. or a gift in tayle leaving the reversion in himselfe he remaines Tenant still to his Lord and his heires shall be in Ward for the reversion because his estate never moved at all out of him and he is immediate Tenant so note the diversity betweene a Remainder and a Reversion So if the Tenant infeoffes A. who gives the land back againe in tayle to the tenant or to the son of the tenant Tenend de Capital Dom. yet the Tenant in tayle should hold of his Donor and he of his Lord Paramount and the heire of the Donor shall be in Ward to his Lord for the reversion and the heire of the tenant in tayle shall be in Ward to his Donor for the possession And for the same reason Coo. 2. Binghams Case 92. if the Tenant in tayle be with the reversion expectant to himselfe and his heires of lands holden by Knights service of a common person and he dies his heire within age he shall be in Ward for his body but not for his lands 24. Ed. 3.33 because betweene the estate tayle and the reversion stand two distinct estates in the tenant and the reversion only is holden immediatly from the Lord and not the estate tayle in possession but if the Case had been Tenant in tayle with the remainder to an estranger in fee there the heire of the tenant in tayle under age shall be in Ward to the Lord of whom the land is holden for body and land because the particular estate and the remainder make but one estate in Law and all is holden of the Lord immediatly But note that in the Kings Case if his Tenant make a gift in tayle and grant the reversion over or keepes the reversion expectant to himselfe in fee in these Cases and the like by some bookes the King may elect his tenant and there shall be a Wardship of the heire of the Tenant in tayle or of him in the reversion as his Majesty shall elect Stat. 34. H. 8. cap. 5. and this election shall binde him so that afterwards he cannot resort to a new choice but other bookes are contrary viz. that he in the reversion is only the Kings Tenant and he hath no election but by common experience of the Court of Wards they use to choose the Wardship of the best estate for the King and for the third part to bee in Ward upon the Stat. of 32. 34. H. 8. of Wills the words of 34. H. 8. are that the King shall have as well lands in taile as in fee simple If the kings tenant F. N. B. 142. d. 14. H. 8.16 or the tenant of a common person be disseised of his land and die so that a right only descend to the heire yet the heires being within age shall be in Ward for this right Coo. 3. Butler Bakers case 35. a. because after the disseisin the disseisee remaines still tenant to the Lord in right of Law So if tenant in taile make a feoffement in fee 48. Ed. 3.8 15. Ed. 4.10 br and thereby discontinue the taile and then dies his issue under age shall be in Ward to the Donor So where the heire under age recovers lands holden c. by a Br. de entrey sur disseisin writ of Cosenage for the action which descends he shall be in ward for this land so recovered because of the right descended to him Mes auterment est lou il recover by a writ which doth not descend as by a writ De dum non fuit compos mentis Yet where a possibility only descends as if a man covenant with the father to stand seised to the use of the father and his heires upon a contingent the father dies his heire under age the contingent happens It was held by the
Court of Wards that the heire was in by descent and that there should be a wardship and yet nothing descended but by a possibility And in every wardship there must be a descent Re. 10.83 a. Leonard Low Case except it be in some cases upon the Statute de 32. 34. H. 8. quem vide in le prochein Title Where Re. 3.62 a. Lincolne Colledge Case if the issue in tayle under age enters into the joynture of his mother by force of the Stat. 11. H. 7. c. 20. for a forfeiture by her alienation thereof he shall not be in ward because he hath the land in manner of a purchase and not by descent So if the father leaseth to his son and heire for life and dyeth 9. Ed. 3.4.15 Co. 6. Sir Geo Cursons ca. 76. and the fee descends to the son under age so that the freehold is mergd in the inheritance yet he shall not be in ward for the land because he had the possession by purchase Si soit bona fide valet ut c. And generally in all other cases where the heire hath the land by purchase without collusion is where he buyes the land of his father bona fide and for valuable consideration or in the like cases Coo. 10. Re. Leon. Lowes case 83. b. t. Inst 78. â— for if it be by collusion then there will bee a wardship by the Stat. of Marleb and 34. H. 8. cap. 5. though the heire had not the land by descent whereof after see in the Title Collusion If the King Knight the heire apparent of his owne Tenant Plo. Com. fo 268. Ratclifts Case Coo. 6. Sir Dru Druries Case 74. Coo. 8. Sir Hen. Constables Case 171.2 or of the tenant of a common person under age and in life of his Ancestor hee shall not bee in ward though he be under age at the death of his Ancestor neither for body nor land but shall for all purposes bee reputed of full age because the king by knighting him hath adjudged him of full age and able to doe knights service But if he knight him after his Ancecestors death while he is in ward Stat. Mag. Carta cap. 3. hee is thereby presently out of ward for his body but for his land shall be in ward till his full age of one and twenty yeares Quem vide apres en le Title Marriage as also some other Cases where the heire shall be out of wardship for his body though his lands remaine still in ward Wardships and Primer Seisin By these Statutes of 32. H. 8. c. 1. a. 34. H. 8. cap. 5. of Wills WHereas the words of the Statute are That every person having Lands Tenements or Hereditaments of an estate in fee simple per Knights service in Capite of the King or of any other Lord in common knights service c. May by his last Will in writing by act executed in his life time give dispose will or assigne two parts thereof for advancement of his wife preferment of his children or paying of his debts c. leaving to the King wardship and primer seisin and to no other Lords wardship of so much of the same lands as shall amount to the cleare yearely value of a third part thereof It is to be considered that these Statutes give to the tenant power to devise his lands by his last will in escript which he could not doe before these Statutes which was some prejudice to the Lords of these lands for their wardships of the two parts so devised Coo. 6. Re. Sir Geo Cursons Case 76. a. So then they doe give benefit to the King and other Lords to have wardships c. In cases when they shall have had none before though the Ancestor neither dyed seised nor any land descended to his heire which are contrary to the rules of the Common Law which see before in the last Title And where the father conveyes his land holden c. by act executed in his life time for advancement of his wife preferment of his children or payment of his debts and dies his heire under age here is neither dying seised nor descent and yet the Statutes gives a third part of these lands to be in ward during the minority of his heire notwithstanding it shall at his full age goe according to his fathers disposition because the conveyance was only avoided during the minority for benefit of Wards by the Statutes Co. Re. 8. Digbies Ca. 165. b. and not utterly void but these Statutes doe in no case give wardship where there is no heire as where the father after such conveyance is attainted of Treason and dyed his issue being under age here the third part shall not be in ward by the Statute Re. 10.85 a. t. Leon. Lowes Case because the Ancestor dies without heire in regard of a corruption of his blood And note where the Ancestor deviseth by his last will land holden c. to his wife Dyer 150. b. St. 34. H. 8. ca. 5. Coo. 8. Sir Richard Pexals Case 85. a. yonger children c. the will is not avoided only during the minority for the benefit of wardships as in the said Cases of acts executed but the will is utterly void for a third part by those Statutes and therefore he hath the third part by course of descent by the Common Law and the will is good only for the other two parts whereof there shall bee no wardship but only for the third part descended which the heire also shall have a son plein age notwithstanding the will Coo. 3. But. Bak. Case 35. for if a man devise a rent out of all the lands holden c. this is void to charge a third part of the lands notwithstanding the land descends charge of the rent But where the land holden c. are deviseable per custome in London and some other townes theâ—e all may be devised and the will is not void for a third part because the land was deviseable before the Statutes which are in the affirmative and therefore doe not destroy the custome but the case But the saying of these Statutes doe avoid the will pro tempore Coo. Re. 3.35 a. b. But. Bakers Case and give a third part to the King for a wardship during the minority c. And yet the heire is barred by custome to have the third part at his full age as before in the third case of disposition by act executed he is barred by the conveyance It is seen who shall be said to be a person having of lands tenements or hereditaments holden within the meaning of these Statutes and that will best appeare by cases of difficulty for of common persons having of lands c. I purpose not to speake plaine matters need no demonstration a disseised of land in capite which is put out of possession and hath only a right of lands Coo. 3. But. Bak. Case 35. a.