5 c. 25. Flet. l. 6. c. 48. Dier fo 224. n. 29. but in regard the thing taken is also received the acquisition is not to themselves but to the King as we have said nor finally can persons uncertain as the Heirs of one that is living y Perk. grants 52. Plow 345. Or the first-born of any one who at the time of the gift hath not Children z Perk. ib. n. 54. Dier fo 274. n. 43. but a possession to A. the remainder to his Heirs though uncertain is good a Coo. l. 1. Arâ—bors Case f. 66. he also who is wholy unfit and unable to execute an office in any of the Courts of Justice is uncapable of receiving the said Office b Dyer fol. 151. n. 1. 14. Now all things whatsoever may be given save those things which can no way be possessed those are things sacred and Religious or as it were Sacred and those are a Free-man and that which appertains to the Kings Treasury which make the very Crowne and belong to the Publique profit c Brac. l. 2. c. 5. n. 8. 13 14. Brit. d c. 34. Flet. l. 3. c. 6. To which also some adde the Walls and Gates of Cities d Flet. ib. But at this day there scarce seems to be any liberty appertaining to the Crowne or Pâ—erogative in the Supremacy which may not by Charter be granted to a Subject e Kitch fol. 30. b. 15. I cannot give the Right which I have in a thing which is in the possession of another to a third person Yet I may â—emit it or as we say release it to the Possessor by my writing f Perk. ib. 85 86. Nor can any one give an action which he hath to any thing as we have said before g Sup. cod except the King h Dyer fol. 30. n. 208. or to the K. i Bro. chose in Action 4. yet one may give it to the party obliged k Perk. ib. 85 86. A man cannot give the reversion of an Office Eo Nomine nor can any but the King give under the name of the Office l Dier fol. 259. n. 18. 16. Now that a Donation may be valid there are other things required It ought to be free and not compulsatory nor extorted by force or feare m Brac. l. 2. c. 5. n. 8. 13. Brit. d. c. 34. There ought also to be certainty in a Gift for that there can be no Donation of a thing uncertain unlesse it may be some meanes be reduced to Certainty n Perk. ib. 81 86. Plow fol. 6 7. 12 13. There ought also certain words to intervene to a congruous Gift o Brac. ib. n. 12. as to a Bargain p Id. ib. Dier fo 71. n. 10 11 and that there be a joynt consent as well of the Donee as of the Donor q Brac. ib. n. 12. Dr. Stu. l. 2. c. 33. And that there may be no Error in the thing given r Brac. l. 2. c. 5. n. 12. Flet. l. 3. c. 7. nor fraud s Id. ib. not prejudice to a third person t 13. Eliz. c. 9. Yet a false or pretended cause adjoyned to a Gift doth not vitiate or injure it u Flet. l. 3. c. 6. 17. And here also there ariseth a difference amongst Donations for that some may be by word some not without Writing or Deed as we commonly speak w Brac. l. 2. c. 5. n. 3. all Chattells for the most part either reall or personall may be given by word x Per. grants 7. unlesse they be given by a Body politick whose Seale iâ— necessary in every Alienation y Id. â—od 64. If any one in Knights service be Guardian of Body and Lands he may grant the Custody of the Lands or the profits by word only which some affirme also as to the body or person of the Heir z Id. ib. 60. though it be denyed by others for this reason That the transferring of the Body doth not consist properly in the delivering possession a Id. ib. No man can grant Lands which one hath in possession to another either for life or for ever without a Writing but for yeares he may b Id. eod 61. Corn which is but growing may be granted by a Nude parolâ— and that by Tenant in Tail although he dye before the Doâ—ee hath severed it from the land c Id. eod 57. which notwithstanding is otherwise in fruits of Trees growing upon the Land d Id. eod 59. And the reason of the differenceit may be is because Corn cannot grow without the industry of man but trees by nature but Tenant in Fee-simple may give even such Trees by his word only e Id. eod 58. because he hath a larger power then Tenant in Taile And lastly Lands and Tenements may be given amongst those who are living by word only f Id. cod 62. But in case of Death not without a Will in writing g Seetit of wills c. 18. Incorporall Rights are hardly given without Deeds as wee call them such as yearly Rents h Dier fol. 139. n. 57. Dr. Stu. l 2. c. 16. fol. 80. Common of Pasture an Advowson villain in grosse or the reversion of Lands after the death of the present Possessor i Perk. gr 61 Plow fol. 150. Of which nature also are Tithes according to the opinion of some k Perk. ib. 62. Plow 233. but a Rectory with it's Tithes may l Bro lease fol. 15. 20. to which may be added the Right of Guard and Marriage m Dier fol. 370. n. 57. 19. If a Gift be in all things compleat it ought to be confirmed by Livery or something parallel n Brac. l. 2. c. 5. n. 12. 17 18. Inst com c. 21. Lit. l. 1. c. 7. Flet. l. 3. c. 2. 9. Dier f. 49. fol. 91. Now how Livery and Seifin is to be we have spoken else-where 20. There are three kinds or species of Donations in case of Death One which is made meerly upon the thoughts of Death when there is no feare or danger of Death â—igh Another when the party being moved with the imminent feare of present Death so gives that the Gift immediately becomes the Donees The third when one being prickt with the danger gives out so that the gift is forth-with the Donees but after his deceale o Brac. l. 2. c. 26. Flet. l. 2. c. 57. What persons may alienate and what not TIT. VIII THis Chapter is so near the other that we must necessarily repeate many things which we mentioned there But the word â—â—lienating being more generall then giving those things which we shall set downe heâ— have a more universall use It happens sometimes that he that is Oâ—ner of an Estate cannot alienate it The King cannot alienate the ancient Mannâ—â— annext to the Crown but every King is â—â—liged to revoke the alienations of the
although for the most part it leaves the Cases of wills to be tried by the Ecclefiasticall Courts according to the Rules of the Civil and Common Law yet are there certan particular Cases of Lands and Chattells really and which she hath reserved to her self and those with as much brevity as we can we shall sum up 2. And in the first place all may give Legacies who are capable of making wills and who they are we have formerly mentioned but no man can rightly bequeath Lands or Tenements who hath not the possession of them at the time of the making of the will b Fulb. Par. e. Devises fo 37. a. 32. 34. H. 8. which is to be understood if no other person be not also in possession in his right or name for one may bequeath a Reversion 3. All men also are capable of Legacies who are not especially excepted by the Law which are religious persons and persons not yet in being although they afterwards shall be As if one makes a bequest to such a Colledge or Chantry of which name though there be not any at the time of the Testators death yet there happens to be one afterwards c Perk. 505 Fulb. ib. fo 35. b. but a Post humus in favour of Testaments Although he be in the Wombe is notwitstanding supposed to have being d Tearmes v. devise 4 A Husband although he cannot make a Gift to his wife in his life time because they are both adjudged one and the same person during Matrimony yet he may give and bequeath Lands unto her by will in regard that Legacies take no Effect before the death of the Testator by which this conjunction is dissolved e Fulb. ib. 36. a. 5. One may also give a Legacy to an uncertain person which may afterwards be rendred certain as an annuity is given to A. for life and after his death to him who shall first in the Morning enter Saint Pauls Church and to his Heires B. enters in the morning before any one else this Legacy shall inure not only to A. but to B. and his Heires also f Id. ib. 6. A Body politick unlesse by the Kings particuler Charter is not in capacity of receiving an Estate bequeathed g Perk. 505 7. By our ancient Law Fees could not be bequeathed by will h Id. 537. Brit. c. 34. 27. H. 8. c. 10. Dr. Stu. l. 1. c. 7. and c. 20. Dier fo 74. n. 14. but necessarily discended to the next Heires i Glan l. 7. c. 1. Bract. l. 2. c. 26. Dier fo 127. n. 54. except contrary to the Common Law the particular custome of any City or Corporation permitted k Lit. l. 2. c. 18. F. N. B. 198. I. unlesse the Heir consented to such bequests Whosoever therefore would by his will give Lands to another did first infeoff one in them to the use of himself and his Heirs l Perk. 528. and by this means he might bequeath the use of the said Lands although he could not the Lands themselves unto a third person m Id. ib. 97. but later times have remedied this inconveniency or rather poor and weak comment and hath deereed that not only uses but even the Lands themselves with some moderation may be bequeathed n 32. H. 8. c. 1. Bro. testam 19. Swinb part 3. S. 4. Coo. l. 7. Case Butler fo 30. for of a Knights Fee we are yet obliged to leave the Heir a third part and we are prohibited the bequeathing of Lands by a will nuncupative in regard of the deceit and fraud they are subject unto o Dier 155. n. 21. 8. If a man and his Wife ioyntly purchase Lands to them and the Heirs of the man and the Husband bequeath them after the death of him and his wife to a stranger this is good For in this case the Husband hath the Fee-simple p Perk. 539. 9. If there be two Joynt-Tenants in Fee-simple where by the custome of the place Lands and Tenements may be given by will and one of them bequeaths his right to a third person this is void For since a Will is not in force untill the death of the Testator the right of a Joynt-Tenant at the very instant of his death is transferred by law unto his fellow q Inst Jur. Com. c. 15 which notwithstanding is otherwise in Partners because Partners have their Lands by blood and Inheritance and not by the Courtesy or pleasure of a Donor Joynt-Tenant have theirs r Ib. 10. A man may also appoint by his will that his Executors may sell those Lands which he hath in Fee and which he may bequeath and that the profits arising from such Saile may be imployed for pious uses or for the good of his Soul s Perk. 422. 541. 543. 21. H. 8. c. 4. but iâ— they shall cease to fulfill the command of the Testator within two years the Heir may enter upon them and eject them t Fulb. par c. Devises fo 40. Plow fo 523. 11. A. being Tenant in Socage gives the Lands which he hath in Fee-simple to his wife for tearm of life the Remainder to B. his Brothers Son and the Heires males of his Body and if it shall happen the said B. to dy without Heires of his Body begotten not expresly nor implicitely naming males there the said Remainder to C. another Kinsman and his Heires males in Fee-simple and for defect of Heires males of the said C. then to the next Heirs males of the said lineage lawfully begotten B. dies leaving only Issue D. a Daughter the question is whether D. shall have the Lands by force of those words and if it shall happen c. or some other Heir male more remote But it was adiudged that those words did not create a general Tail to the Heirs of B. or hinder the Lands from remaining to the Heirs males according as devised u Dier 171. n. 7. 12. Chattells of any sort may be bequeathed by will w Perk. 511. wherefore the profits arising either from the custody of a Body or Lands of a Ward a Lease for years Horses Oxen Sheep Gold Silver either in Plate or Money Rings all manner of Vessells without exception are diviseable x Id. 525. unlesse the Testator had but a Joynt possession of them at the time of his death y Dr. and. Stu. l 1. c. 6. Lit. l. 3. c. 3. and unlesse they be affixed to the Fee or Free-hold and cannot being reputed parcell of it be removed without wast z Bro. Execut. 65. 13. Monies also due upon Bond or Condition may be devised for that after they are paid to the Executors they are due to the Legatee a Perk. 527. 14. Chattells which a man hath in right of his Wife as Leases for years c. are deviseable b Id. 560. 15. A thing uncertain may be also devised so long as it may be reduced to
of Patronage in reâ—pect of the Fee which we possess and these 〈◊〉 tearmed the Lords of the Fee a Prat â—i lexicon verb. Patronus And theâ—â— are very few Infants that succed to good Estates who escape their Wardship and Câ—stody For as there is none with us except 〈◊〉 Crown who are seised of their Estates anâ— Tenements in a freer or larger Title thâ—â— Fee so is there scarce any Fee less worth But that it is bound to the Lord or a Patroâ— by Knights Service now those things whicâ— are proper to this Service are Gard Maâ—â—age and Releife b Lit. l. 2. c. 4 1. An Infant Heir who succeeds his Aâ—cestors c F. B. 262. Fletl 1. c. 11. Dyer 362. Gla. l. 7. c. 9. Bract. l. 2. c. 32. Brit. c. 66. Lit. l. 2. c. 4. in Knights Service remaines under the Guard and Custody of his Lord uâ—till he come to perfect age For before thâ—â— age he is not adjudged capable of those warâ—ick accomplishments requisite for a Knight â—nd due to his Lord by reason of his Teâ—ure notwithstanding that it falls out someâ—imes that age being dispensed with some are elected into the order of Knighthood before â—hey be compleat one and twenty years old But our Law supposeth these to be able to do those Offices due to the Lord of the Fee wherefore they are out of the custody though Infants d Brook tit Gard. 42. 72 Fulbeck in paral f. 29. Plow 267. 2. And this right of custody springs from â—his reason that since he who holds by Knights Service is obliged according to the â—greement at the first investing of the Estate â—o follow his Lord as a Knight in the Kings Wars It is presumed that no man will be more carefull in training up the Infant in â—eats of Armes then the Lord himself e Fort. c. 44. Polid. Virg. l. 16. 3. But if such an Heir be female she remaines in custody according to the Ancients f Bract. l. 2. c. 37. n. 3. but till fifteen and according to our moderns no longer then sixteen years of age g Lit. l. 2. c. 4 â—or no sooner doe they come to that age but they are immediately presumed to be able to govern their house and to marry such a Husband that shall be capable of doing the Service due to the Lord of the Fee h Bract. Lit. ibid. But if shee be compleat fourteen years old at the death of her Ancestor neither her Body or Land shall fall under the Custody of the Lord. i Lit. l. 2. c. 4. Mert. c. 6. West 1. c 22. Instit Jur. Com. c. 24. Br. tit Gard. 7. 4. But if in this case it come in question whether the Heir be an infant or not he shal remain in custody untill it be determined k Brac. l. 2. c. 37. Brit. c. 66 fol. 167. b. 5. If a Knights Fee discend to an Heir 〈◊〉 the Mothers side the Father living shalâ— have the Guard of his Body and the Lord of the Land for it is a Maxim that no one as to his Person shall fall into the custody of the Lord his Father living l Lit. l. 2. c. 4. 6. If Lands discend to a Wife who after Issue had by her Husband dieth So that the Husband for default of having possession 〈◊〉 the Lands in the life of his Wife cannot be Tenant by the courtesie of England In this case the Issue unlesse it be Heir to the Fatheâ— as being his eldest Son shall be in custody And if such Issue be a female and an Infant at the death of her Mother she shall remain If her Father have a Son living in custody notwithstanding her Father be alivâ— l F. B. fol. 143. 7. Lord of a Knights Fee may transfer the gard of his Tenant to another From whence there ariseth this distinction of Guardian iâ— Law and Guardian in Tail Guardian iâ— Law is the Lord himself Guardian in Tail is he to whom the Lord hath granted the the Custody of his Heir n Bract. l. 2. c. 37. n. 3. Lit. l. 2. c. 4. 8. There is also a Guardian simply and originally so called and a Guardian by accident from the cause of custody Originally is he who in right of his Fee hath the custody of his Tenant Causarily is he who for that he hath the custody of his own Tenant being yet an Infant hath upon that score the custody of another who is Tenant to his Ward o F. B. fol. 139. d. Dyer 123 n. 38. For an Infant cannot be Guardiâ—â— of an Infant p Flet. l. 1. c. 11. â— When there is an Heir male or female â—ho hath many capitall Lords they cannot 〈◊〉 have the custody of the Heir and thereâ—â—re one must be preferred before the rest â—nd that is he who first infeoffed the Tenant 〈◊〉 Knights Service the rest shall only be â—â—rmitted the custody of the Lands which â—â—e holden of their Fee q Bract. l. 2. c. 37. n. 4 c. Stamf. Prerog c. 2. 10. But if any Heir hold of the King in â—â—pite by Knights Service whether he hath â—â—her Lords or not the King shall be preferâ—â—d before the rest to the custody of the â—eir and that notwithstanding Priority or â—osteriority of infeoffing For that the King â—ath no equall or superiour in his Realme r Glan l. 7. c. 10. Bract. Stam. ut sup 11. A Ward who is once freed from the â—â—stody of his Guardian as by marrying or â—ontracting Matrimony with his consent â—â—all not return again into the custody And â—â—at notwithstanding he be under fourteen â—ears of age or afterwards that he shall marâ—y before 21. s Bract. l. 2. c. 38. n. 1. Lit. l. 2. c 4. 12. If there shall be many Daughters Coâ—cites who hold by Knights Service They â—hall be all under the custody of the capitall â—ord and none under the custody of the Mother t Bract. l. 2. c. 37. n. 6. Of the Legall Guardianship of Parents TIT. XVIII THE Father is preferred before all others to the custody of his eldest Soâ— For if an Inheritance fall to such an Infaâ—â— who hath a Father living notwithstanding that the Lands if they be holden in Knight Service be in the custody of the Lord of the Fee Yet the Body of the Heir shall remaiâ— with his Father a Lit. l. 2. c. 4 Cook l. 3. Case Rat. fo .. 37. 1. So also the Mother of an Infant 〈◊〉 holds in Socage shall have the Custody 〈◊〉 the Body and Lands of the Heire before aâ—â— kindred either of the Fathers side or Mothâ—â— side Of Fiduciary Guardianships TIT. XIX THat Tutela Fiduciaria which the Romanâ— imposed upon the male children theiâ— Parents being dead and upon the Childreâ— of Patrons our Ancestors seem wholly 〈◊〉 have neglected Concerning the first Weâ— have nothing determined save that which we mentioned before of the legall Guardianship
feodaâ—â— for he is the first of a new Family who yeiâ—â— Homage and Fealty c Lit. l. 2. c. 7 ancient Fee is who the Feodary and his Ancestors time out 〈◊〉 mind have held such a Fee and here the Fâ—â—dists d Id. ib. new terms tit Hom. Auncest place a Medium between these two 〈◊〉 paternal Fee which comes by four degreese Discent and they define that to be the aâ—cient which discends from more e Duar. com in cons feod c. 4. n. 10. 10. Fiftly Fee is divided into ecclesiasâ—â—â—â— and Laick or Seculer Ecclesiastick is thâ— which is possessed either by Ecclesiastick persons or which belongs to Churches 〈◊〉 that which is held by Lay persons and cannâ—â— be possessed by Ecclesiastick and indeed 〈◊〉 Fees as with us laick unless they become â—â—ther by some speciall grant from the King which we call giving to Mortmain f Mag. Char. c. 36. 18 E 3. Stat. 3. c. 3. 15 R. 2. c. 5. Pol. Virg. l. 17. Eng. Hist 11. Sixthly Fee is distinguished 〈◊〉 Masculine and Feminine Masculine is thâ— which is given to the Feodary and the Heiâ— Males of his Body and of this kind 〈◊〉 those of Dukes Marquesses Earles Viscounts 〈◊〉 Barons for the most part Which 〈◊〉 defect of Heirs Males are extinguished 〈◊〉 return into the supremacy from whence â—â—ey Issued but these are at this day rather â—itles of Honour then Fees in regard they â—re for the most part conferred without 〈◊〉 â—emenine is that which may discend to â—â—e â—â—male Issue as when it is given indefinitely 〈◊〉 the Feodary and his Heires and so that or default of Heires males it may come to â—he females and their Issue g Bract. l. 2. c. 34. l. 1 c. 8. n. 4. 12. Lastly Fee is either pure or simple or â—onditionall Simple is that which is held 〈◊〉 a simple and perpetuall Right to the Feoâ—ary and his Heires for ever Conditionall 〈◊〉 that which is granted to the Feodary and â—uch or such Heirs for default of which it reâ—urns to the Donor and his Heirs and thereâ—ore he that hath Lands given to him and his Wife and to his Heires begotten of her in â—ase she dy without Issue before him is called â—enant in tail after hope or possibility of Issue â—xtinct For this kind of Fee with us is called Fee-tail comming from the French word Tallier to cut part or divide as if we should say a Fee by some means severed or diminished h Lit. l. r. c. 1 1 Instit Jur. com c. 11. 13 13. And this kinde of Fee is double viz. Taile generall and Taile speciall Generall Taile is where a Fee is given to the Feodary and the Heirs of him lawfully begotten or to be begotten for in this case the Children of either Wife whether first second or third shall inherit speciall Taile is where a Fee is given to the Feodary and his Wife and to the Heirs of either of them l Lit. ib. Inst Jur. c. 12. West 2. c. 1. or according to some when it is given to him and his Wife and one Heir of their Bodys lawfully to be begotten and one Heir of that Heâ—â— only m Perk. 171 but this whether it be properly to be stiled a Fee for want of perpetuity may 〈◊〉 be doubted 14. Now a Fee is not limited to one Fâ—odary but may be possessed by more so thaâ— they are called Partners Joynt-Tenants 〈◊〉 Tenants in Common n Lit. l. 3. c. 3 Inst Jur. com c. 15. Partners are either by Law or custome by Law are Sisters Co-heires because the Heires Males being dead they equally succeed their Parents in the Fee o Id. c. 1. 3 by custome are Brothers in maâ—â— Counties especially in Kent from the Custome of Gavâ—lkind called so from the equality of apportioning the Inheritance p Id. c. 2. Joynt-Tenants are they which hold Lanâ—â— or Tenements by one and the same Title but not hereditary Tenants in common 〈◊〉 those which possess Lands or Tenements 〈◊〉 indiviso by divers Titles as in case one Co-Heire sells her part to a stranger he is not Joynt-Tenant with the other Partners but is called-Tenant in common q Id. c. 4. Inst Jur. com c. 15. 15. A Fee with us is not only of Corporall things but incorporall also for the custody of a Forrest r Vid. N. b. f. 6. Dyer f. 30. n. 209. Prison s Id. f. 41. or County t 28 Ed. 1. Stat. 3. c. 8. may be granted to one in Fee and the same may be said of an annuall Rent u Vid. N. B. foâ— 8. and of an advowson severed and not appertaining to any Mannor which we call an Advowson in gross w Lit. l. 1. c. 1. Bro. tit Tenures 105. now there are many services pertaining to a Fee which we shall mention in the next Chapter 16. There are belonging even as it were to the very nature of Fees Fee farm free farm and free Tenement Fee farm is a Tenure of Lands and Tenements granted to any one and his Heirs for a yearly Rent which equals the third x F. N. b. fol. 210. b. or at the least the fourth part y Old Tenure ver Fee farm of the true value without any other Services then what are expressed in a Charter of Feoffment z West part 1. symb 463. some affirm that a Fee farm can only be granted for the life of the Farmer and some will have it Fealty although not expressed a New terms of the Law in the Feoffment and others that reasonable releife b Bract. l. 2. c. 39. n. 9. is due of right from the Fee-Farmer to the Donor but the condition of this Tenure is such that if Rent be not paid by the Tenant for the space of two years then the Lord or Feoffer may recover the Lands to him and his Heires upon his action 17. Britton makes free farm where Lands and Tenements are so given that the nature of Fee by Feoffment is changed from Knights service to certain annuall Service so that there is neither Marriage nor Releife requirable nor any other service expressed in the Feoffment c Brit. c. 66. but I do not remember that I have read this in any other Author 18. Free Tenement or free-hold is where Lands and Tenements are held only for life of the Tenant and such a Tenant is said to hold In Dominico suo ut de libero Tenemento d Dyer f. 221. n. 19. f. 153. n. 10. But if it shall be said that Fee is naturally a Free-hold I shall not deny it only must add that it is also somewhat more because perpetuall e Inst Jur. com c. 10. Lit. l. 1. c. 6. Bract. l. 4 tr 1. c. 37. but of that Free-hold which is meant here there are two kinds One which is for tearm of life even by the very custome and Law the
Ancestor unlesse he be specially mentioned in the Instrument of Contract and have an Estate sufficient discending 2. Bracton d L. 2. c. 26. n. 1. Glan l. 7. c. 8. Plow fol. 418. makes this distribution of Chattells Viz. That Debts being paid the overplus should be divided into three parts whereof one to be left to the Children the other to to the Wife and the third at the will and pleasure of the Testator And if there be no Children then one halfe to the liberty of the Testator and the other to the Wife And if there be no Wife then one moity to the Children and the other as the Testator shall please But this rather seems to be Counsell then Law for a little after in the same place hee saith That neither the Wife nor Children ought to take more of the Goods of the Father or Husband deceased then what is particularly bâ—quâ—athed unto them except it be upon some speciall grace as having merited extraordinarily of him in his life time And he gives this reason namely because there would scarce be found any one who would endeavour to lay up much if hee should be compelled at his death to leave it to illiterate or debauched children or to an ill wife And therefore it is very necessary that in this they should have a free power for by this they prevent vice and encourage vertue and give occasion both to VVife and Children of well doing which could not be if they knew undoubtedly that they should have a certain portion whether the Testator will or not Of the instituting of Heires TIT. XIV THe Civillians and wee have a different acceptation of the word Heire for they call him an Heir whom the Testator nominates in his VVill a Inst de Testam ordinand And we him who is next of Kin to the party deceased to whom a Fee doth of right belong after the death of the Ancestor b Glan l. 7 c. 1. Brac. l. 2. c. 33. â— 3. Brit. c. 118 119. So that we affirm it is not man but God who makes Heirs c Glan Brit. ib. And that Here 's comes from Hereditate where succession is by right of Blood d Brit. ib. Nor do we call all the Estate of the party deceased his Inheritance but only his Fee or at lest those Lands tenements with all things corporal and incorporall which the Party deceased held by a perpetuall Right e Iidem ib. VVherefore it was necessity which in some sort constituted an Heir who as he was wont to succeed his Ancestor in the premises even against his will so was he obliged to pay his Debts if he had Assets sufficient and the Chattels did not suffice f Glan l. 7. c. 7. Brac. l. 2. c. 26. n. 1. as we have in part declared before 1. VVherefore an Heir with us doth not succeed to the universall Right of the Party deceased but to the Fee assigned only for as to the disposing of Chattels men nominate their Executors according to their pleasure g Glan l. 7. â— 6 Brac. ib. Dr. Stu l 2 c 10 who as to that part of the Patrimony supply the place of an Heire and represent the person of the Testator if at least they accept the Office h Bro Executors 5 21 22 57 77 84 122 so that they may convert all those goods which are not bequeathed to their own use i Plow 943 and take even the cloathes of the widow if they are more rich and sumptuous then the condition of the Husband would bear k Bro. ib 19 An Executor may also be ordained either absosolutely or upon Condition l Id. ib 9 administrat 1 45 and either from a certain time or after a certain time m Bro Exec 155 and either universally or particularly n Id ib 2 and 155 L Dier fo 3 4 n 7 8 and in the first degree or by Substitution o Id ibid and either one or more p Id ibid 13 24 38 117 3. And those may be Executors whom the Testator shall constitute whether they be strangers or Parents of Kinne or not of Kinne q Brac l 2 c 26 n 2 and not onely those who are free but Servants also and those whether our own or of others r Lit l 2 c 11 Bro villains 68 nor only Lay-men but even of the Clergy also and Religious s Bro ib 68 77 if they have the permission of their Superiors t Fitz. abrid Execut 47 so also may women u Bro. Execut throughout and Infants w Id ib 15 and in fine all who are not expressely forbidden by the Law x Glan l 7 c 6 4 4. Not that any one is against his will forced upon this office but that he that will may refuse and he who hath once refused may notwithstanding afterwards undertake it z Bro ib 38. 117 Perk 4 85. though according to the opinion of some he cannot during the life of his Co-Executor a Dier fo 160 n 42. but being once undertaken it cannot be laid down again and the undertaking of it seems to be when he doth under that name intermeddle with any of the Goods of the Testator b Id. f. 166. n. 10. 11. If an Executor die before the Will proved then Administration of the Goods shall be granted by the ordinary to the widow or next Kinsman of the Testator who shall be obliged to dispose of the goods of the Testator according to the Will unlesse the Remainder of the Goods after the payment of Debts and Legacies were bequeathed unto him for in this Case the Executors of that Executor may justly challenge Administration which the Will annexed c Id. fo 172 n. 8. Of the ordinary Substitution TIT. XV. Substitution is of no small use with us though we do for the most part in this follow the Precepts and Rules of the Civil Law yet we cannot so freely dispose of those fees which we hold by Knights Service by our Testaments but that we are obliged to leave a third part to the heir a 32. H. 8. c. 1. Glan l. 7. c. 7 but for those which we hold in Soccage not intailed b Brac. l. 2 c. 30. or tied by any particular Custome c Glan ib. we may bequeath them to whom we will whether to a Kinsman or stranger d 32 H. 8. c. 1. provided we hold no other Lands in Capite by Knights Service and in each of these Cases we may make Substitution either vulgariter as they term it or Pupillariter Now this Substitution is nothing else then the adding of a Condition which we commonly call Tail namely a limitation of Heires to whom we intend to have the Lands discend from the Testator or remain or otherwise revert to us and our Heirs 1. Yet is not this Substitution the same with that of the Romanes
although there be no mention of Heires i Id. ib. which notwithstanding some affirm joyntly k Perk. 557. 33. If a man bequeath Lands to another in these words I give my Lands to A. to give them or sell or dispose of them at his discretion This is a Fee-simple l Terms ib. 34. A Testator bequeatheth Lands to A. and the Heires Males of his Body A. hath Issue only a Daughter and of her a Grand-son In this case the Grand-son shall succeed in the Lands by force of the Devise rather then the Devise shall remain ineffectuall notwithstanding that in other Donations it is otherwise m Id. ib. 35. If I devile Lands to my Son after the death of my Wife although I doe not expresly give it to my Wife yet our Law â—elpes her by a favourable Construction n Id. ib. Pl. 414. Bro. Exec. 175. 13. H. 7. fol. 17. 36. I devise a Fee-simple to A. for a 100. yeares upon this condition if that he shall pay ten pound yearly to B. the remainder of the said Lands to C. and his Heirs In this case although A. shall break his Condition yet the Remainder as to C. is not hurt although the Law be contrary in Contracts made amongst those who are living o Perk. 504. 565 566 567 568 569. 37. A man deviseth all his Lands to A. upon condition that he give a 100. pound And in case the Condition be infringed then to his owne Family In this case our Law determineth this Devise to belong to him who is next of Kinne to the Testator by blood p Fulb. 46. 38. A man deviseth to another all the Grain which he hath in such a Barn And after the Will is made hee puts more Grain into the said Barne In this case the generality of the words is restrained to that which was there at the time when he made his VVil for that the Law presumes the Testator to have meant only of that q Id. fol. 41. Plow 341. 39. A. after many Legacies in his VVill deviseth the Remainder and residue of all his Goods to his VVife E. in these words The residue of all my goods I bequeath unto my deare wife E. whom also I doe ordaine full and sole Executrix of this my last will and Testament to be disposed of by her for the good of my soule and the payment of my debts E. takes upon her the Office of Execution and payes all Debts and Legacies Afterwards she entermarryeth with B. who getting possession of the said Goods having made his VVill and ordained his Executors dyes before E. Here the question is whether the Goods which E. brought to her second Husband shall revert to her Or whether they belong to the Executors of B. And it was determined that they should revert to E. because the residue of the Goods were destined to certain uses and not left to her disposing r Dyer fol. 331. n. 21. 40. A. being possessed to the value of 100. pound and indebted 20. pound divides his Estate by his Will One moity to B. his Wife the other moity to his Executors The question was whether B. shall have 50 pound or 40 pound and it was resolved that the might claim 50. pound But if the Executors had aliened any of the Goods in Specie that then she could not challenge any of those which were alienated because they were alienated s Dyer fol. 164. n. 57. 41. Devises and Legacies are to be sued for in the Ecclesiasticall Court t Glan l. 7. c. 7. Yet some restrain this assertion only to Chattels reall and personall u Perk. 570. for that the Ordinary cannot take Cognisance of Fees or Freehold w Id. 576 577 578 579. devised But a Prohibition will lye if any Judg of any Spiritual Court shall cyte one before him in case of such a Devise as intrencheth upon the Common Law x Dr. Stu. l. 2. c. 55. Of the taking away or translating Devises TIT. XXI WHereas the Civil Law doth ipso facto null the Will for default of an Heir a L. 10. â— de jure codillorum Ours doth not presently suffer Devises to become void for want of an Executor or for default of an Executors undertaking the Office but appoints Administration of the Goods to be committed to another according to the Judgment of the Ordinary who obligeth the Administrator to the payment of Legacies at least as farre as the Estate will reach b Bro. Executors 1. Lands Tenements and other Hereditaments whatsoever devised by a Testator If they shall happen afterwards to be alienated by him and are again redeemed They are equally due to the Legaree as if they had never been alienated c Id. Devise 8. Of that Law which the Romans called Lex Falcidia TIT. XXII THe first duty of an Executor taking upon him the Office is to satisfie the Debts of the Testator and therefore it wil not be amisse to consider what Antiquity hath adjudged in these cases If there be Debts owing to many saith Bracton a L. 2. c. 26. Glan l. 7. c. 5. Flet. l. 2. c. 57. one may be preferred before another The King is first and it shall be lawfull for the Sheriffe or any of the Kings Bailiffs shewing the Kings Letters Patents De summonitionibus scaccarij to take an Inventory of such Goods and Chattels as they shall finde in the Lay-fee of the party deceased and to attach them to the value of the Debt which is coming unto the K. per visum legalium hominum as we call it so that nothing be removed or taken thence untill such a Debt as shall appear due be payed and the residue of the Chattells to be left to the Executors To the acquitting of which Debts or any other the Wife of the party deceased is not to contribute any thing out of her Joynture for that the Wives Joynture ought to be free b F. N. B. fo 151 a. which holds true except where the Husband is indebted to the King before the Title of Joynture In the second place are to be deducted debts due to others such as are clear and acknowledged amongst which are to be reckoned services and Servants wages provided they be certain But if they be incertain although they depend upon courtesy Yet if their stipends shall be set by the Will of the Testator or his Friends they shall be deducted out of the Goods of the deceased so shall Funerall Charges The Wife also shall have her necessaries even her lodging in her Husbands cheife Mansion house for 40. dayes unlesse her Dower be sooner assigned 1. But that the Estate of the Party deceased may the better appear the Executors or Administrators with the privity and by the assistance of two at the least of the Creditors or Legatees Or if they refuse then two of the next of Kinne provided they be unconcerned of the Deceased Or
Lit. l. 3. c. 4. unlesse the Donees be a Body Politick and receive under that notion or at least one of them in which case they are tenants in Common g Id. ibid. 3. Partners and joint-tenants differ two wayes the former being joyned by necessity and are called Partners meerly in respect of their inheritance Joint-tenants have their name either from purchase or Gift and are joyned together by their own Wills and not by necessity h See the former quotations 4. Thereare also some who are Joint-tenants only for life and yet have severall inheritances as where Lands are given to two men or two women and to the Heirs of their bodies in this Cafe so long as they live they are called Joint-tenants for one of them having Issue and dying his fellow shall have the whole during his life who also if he shall leave Issue and die his Heir with the Heir of him that died before shall hold the said Lands in common i Iâ—st c. 15. and if one of the Donees die without Heire his part for defect of an Heire shall after the death of his fellow revert to the Donor k Littl. l. 3. c. 3. 5. Tenants in common are they who hold the same thing as Lands or Tenements Chattells personall or reall jointly but by severall Titles l Id. ibid. c. 4. for if one parcener alienate or give his Right to a stranger the stranger and the rest are Tenants in Common though the rest amongst themselves enioy their former appellation 6. Wherefore Tenants in Common differ from partners in this that these do not possesse any thing in Common by Right of inheritance as do the others nor are they ioyned by any necessity and from Joint-tenant in that they hold a thing in Common by divers Titles or at least the Tenants are naturally so unequall that they cannot admit of any coniunction such are bodies politick among themselves or with single persons m Id. ibid. 7. First for partners these though they die before Partition transmit and leave their part to their children if they have any otherwise to the rest of their fellows n Id. ibid. c. 2. Inst c. 14. 8. Partition may be made either by mutuall consent o Dier fo 179. or if some refuse by the power of the Judge for he who desireth to have his part divided may have a Writ of Partition by which he shall compell the rest to divide p F. n. b. 61. K. 259. C. 260. B 261. C. but if one woman Partner entermarry and having Issue dieth the Husband being Tenant by the courtesie may compell them to a Partition if it be not already made q Littl. l. 3. c. 2. 9. Littleton doth very fully describe the manner of making Partition both by consent and compulsion but this is rather matter of fact then of Law that onely is observable that if Partition be made by consent one or more of the Partners being under age it may afterwards be corrected wheâ— they come to full age provided they do not confirm it when they come of age by receiving the profits r Id ib. and if it be a Fee-Tail although all be at age at the time of the Partition made yet their Heirs may disagree to 〈◊〉 s id ib. so also if an unequall Partition be made by the Husband of co-Heirs after Marrimony is dissolved either of them may disagree t Id. ib. F. n. b. 62 E. 10. If after Partition any part of either oâ— the Partners Estate lye evicted by Law He or she whose part it was may compell the rest to a new Partition and recover a lawfull part in those Lands which the rest hold u Little ib. c. 2. 11. If there be an Advowson in the inheritance and the Partners will not consent in the Presentation of a Clerk then the eldest shall present in the first vacancy and the rest according to their Case and to this they may be compelled if they refuse to agree and every one hath therr lawfull remedy if they be hindred from presenting in their turn w F. n. b. 34 T and 36 C. 12. If there be two Joint-tenants of a Fee simple withi a Burrough where Lands and Tenemenrs are divisible by Will and one of them devises his Right to a stranger and dies this Devise is void and the reason is because that part which by the Law at his death comes unto the other by the Right of â—â—crease and out of Descent cannot any way 〈◊〉 conveighed to another by a Will which â—â—es not its Operation till the Death 〈◊〉 the Testator from him that claims the â—â—ole x Littl l 3 c 3 13. Two take a Lease joyntly for years â—â—th this condition agreed to between the â—â—ssor and them that if the Lessees die beâ—â—â—e the Terme ended the Lease shall be â—â—id The Lessees make Division and one 〈◊〉 them alienateth his part and dies the 〈◊〉 Lessor cannot reassume the part of him â—â—at died but the Alience shall hold it duâ—ing the life of him that surviveth nor hath â—ccupation in this Case any force but it two â—â—ke a Lease for theit lives and make parâ—â—tion either of them dying his part immeâ—iately reverts to the Lessor y Dier fo 67. c 18 14. Two are Joint-tenants for life one of which lets out his part by Indenture to a third person for years reserving a Rent from it to him and his Heirs and dies the question is whether by his death the ritle did wholly vanish or whether the surviving Joint-tenant ought to hold the whole for his life if he ought then whether he were left to his own libertty notwitstanding the Lease of his fellow or to take onely the Rent reserved upon that moity and it was adiudged by the Justices that the surviver ought to hold the whole Lands for life and that free and disobliged from the others Lease z Id fo 178 n 5 15. And this is the difference between Joint-tenants in Fee and Partners that neither of the Donees can charge his Lands whiâ—â— he holds pro Indiviso with any Rent longâ—â— then for life but a Partner may and the râ—â—son is it cannot preiudice his fellow or 〈◊〉 Heir who derives his Right not from hiâ— but from the Donor but Partners succeedinâ— one the other for defect of Heires may froâ— one anotherr derive their Right a Littl. ib. c. 3. 16. Which notwitstanding in letting 〈◊〉 clearly otherwise for if one of the Doneeâ— who holds pro Indiviso to him and his Heiâ—â— let out his Right for a compleat Term 〈◊〉 dies the Lessee after his death may retain 〈◊〉 during the Term nay he may enter into tâ—â— Lands although they were not delivered unto him in the Lessors life time or anâ— wayes possessed by him b Id. ib. and the reason 〈◊〉 diversity between a Rent Charge and a Lease is iudiciously given by Littleton
as publique or private We call that the Law publique which appertaineth to the very Constitution of a Common-wealth and it consisteth in things holy in Preists and Magistrates For it is necessary for a Common-wealth to have Churches in which men may addresse themselves to God for the forgivenesse of their sins It is also convenient to have Priests or Ministers by whom we may be enioyned repentance for our sins and who may pray for us and mediate to God on our behalfe for his helpe and providence And it is requisite likewise That there be Magistrates ordained because by the meanes of those who are appointed to precede as Judges the Lawes may be put in execution for it were to little purpose that there should be Lawes if there were not some to governe by those Lawes d Bract. l. 1. c. 5. num 6. 4. That which we terme Private Law is that which cheifly belongs to the utility of particular persons and is secondarily necessary for a Common-wealth That no one abuse his owne And so on the other side what is necessary for a Common-wealth is likewise secundarily requisite for the profit of particular persons And this private Law hath three foundations Viz. Naturall Nationall and Civill e Bract. l. 1. c. 5. num 3. Flet. 6. c. pri Of the Law of Nature and Nations and the Law Civill TIT. II. THE naturall Law is that which nature or rather God hath instilled into all Creatures a Bract. l. 1. c. 5. num 4. 1. The National Law or the Law of Nations is that which all Nations observe and which proceeds from the naturall Law Because the naturall Law is that which is common to all creatures either on the Earth in the Sea or in the Aire b Id. l. 1. c. 5. num 6. From the Law of Nation comes the conjunctiâ—n of male and female c Plow fol. 445. And that which by common consent is called Matrimony But this cannot properly be termed a Law because it is corporated and may be seen for Laws are incorporall which discend and are introduced by the custome of Nations But from this Law proceeds the Procreation and Education of Children d Id. 303. 304. And this Law of Nations is â—olely common to man as Religion towards God that we may become assisting both to â—ur Parents and Country and repell Force â—nd Injury And from hence it comes that â—hatosever we do for the Defence of our own â—odies is adjudged legall e Bract. l. 1. c. 6. num 7. From the Law â—f Nations also are servitudes f Id. eod wars diâ—tinct and divided Nations severall distinâ—uisht Kingdomes and Dominions Manumisâ—ons setting of bounds to Land the building â—ogether and neighbouring of houses by â—hich means we have our Cities Borroughs â—nd Villiages And generally to this Law of Nations may be referred all manner of conâ—â—acts and many other things g Id. l. 1. c. 5. num 6 7 8. 2. The civill Law of England usually â—â—lled Common Law is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and â—ath a threefold Acceptation For first it is â—â—ken generally for that Law which the Enâ—â—â—sh use distinguished from that of the Romans and other Nations Secondly It is taken for these two Courts of Judicature commonly called the * Formerly Kings Bench. Upper Bench and the Common Pleas. For when we say the cognisance of any cause belongs to the Common Law we did not intend to any Court Baron County Court Pypowder Court oâ— any such Court but to one of these two Judicatories who do most strictly judge all causeâ— according to the rule of the Common Law h Doct. Stu. l. 2. c. 5. Eract l. 1. c. 5. num 5. Although there be many cases in which both in the Chancery and Fxchequer Process are issued upon Originall Writs and judgment given according to common Law i Plow fol. 9. And thirdly It is taken for that Law which we tearm Statute Law k Cook l. 3. fâ—l 86. 3. The Law of England according to somâ— hath six principall foundations viz. The Laâ— of Reason l Plo. f. 316. the Divine Law the general customes of the Kingdome certain principle and Maximes particular Customes and Stâ—tutes m Doct. Stu. l. 1. c. 4. But if we shall contract these more close we may say the Law of England hath twâ— parts Viz. Ancient Customes confirmed 〈◊〉 the consent of the People and formerly the Kings Oath And Statutes which 〈◊〉 enacted by Parliament either as Supplemâ—nts or amendments to the aforesayd Customes both which are derived from thâ— Law of Nature and Nations as all otheâ— Law â—s whatsoever which are either iust 〈◊〉 reasonable And thus wee fitly divide 〈◊〉 Lawes into written and unwritten n Fortc c. 13 There be others which make our Laâ— three fold Viz. Common Law Customes and Statutes o Cook pref l. 4. 4. Our written Law at least that which is in use is contained in Statutes p Cook l. 3. pres which were not made according to the Princes pleasure but by the consent of the whole Realm called together formerly by the King for this purpose q Fortes c. 9. 18 Bract l. 1. c. 2. nu 7. yet we as heretofore the Kings approbation was necessarily required 5. And in one pâ—rticuler the supream powâ—â— wheresoever it rest as in times past the King is above the Lawes for that it may grant priviledges at pleasure as to single persons as to Corporations and Colledges provided they become not injurious to a third person r F. n. B. fol. 28. In which if any douts arise some say it self alone hath sole power of interpreting s Bract. l. 2. c. 16. num 3. Brit. c. 63. Flet. l. 3. c. 14. Although others ascribe this power also unto the Judges that such Charrers may receive construction according to the rules of law t Cook l. 1. Case Altonwoods 6. But sometimes it falls out cases arise which are neither provided for by customes or Statutes sufficiently And there the Judges do decide by like reasons proceeding accorcording to former Precedents And for that purpose did many times meat together to argue such cases u New terms of the Law tit Demurrer But if any such disficulty chances to happen which requires a higher search then judgment is recited untill the next Parliament by the councell of which Court it is determined w Bract. l. 1. c. 2. num 7. 7. The unwritten Law consists of ancient customes of the Realme which are observed for Law x Bract. l. 1. c. 3. num 2. Littl. l. 2. c. 10. Cook'l 4. fo 21 and to the observation of which our Kings at their coronations were obliged y Fort. c. 34. by Oath notwithstanding any of these customes may be altered or nulled by a Statute z Doct. Stu. l. 2. c. 5. Plow 465. A custome is either generall or particuler A
by right of Inheritance But if Tenant in Socage dies the next Heir whether Son or Daughter if an Infant shall be in the custody of the next of Kinn on that side to whom the Inheritance cannot discend for examples sake if the Estate come by the Fathers side then the Mother or if she be dead the next of Kinn on her side shall have the custody of the Infant If by the Mothers side then the next of kinn on the Fathers side a Glan l. 7. c. 11. Lit. l. 2. c. 5. Bract. l. 2. c. 77. n. 6. 52 H. 3. c. 17. Broo. tit Guar. prochein am 11 12 13. Plowd 295. and this is the reason of the Law Because the Infants may be in less danger in their hands to whom their death is least advantagious b Fort. c. 44. 45. so that none that is a Coparâ—â—ner in Socage ought to be in the Gard or Custody of her Coparâ—â—ner or her Husband but of some of her Parents and if any one shall buy the Gard of the Lands or the marriage of the Daughters and shall take any of them to Wife he is presently suspected and shall by the Law loose the Gard of the Body and the marriage of the rest by reason of the suspition c Fle. l. 1. c. 9 1. But if two Brothers purchase Land 〈◊〉 them their Heires the elder if at age â—ay have the Gard of the younger being 〈◊〉 Infant provided they be both legitimate d Brit. c. 35. fol. 92. 2. And these Heires according to the â—â—cients go out of Wardship at fifteen years 〈◊〉 age e Glan l. 7. c. 9. Bract. l. 2. c. 36. n 2. Flet. l. 1. c. 11. But according to the moderne â—â—actise at fourteen f Lit. l. 2. c. 5 Doct. Stu. c. 7 fol. 141. F. B. 118. in regard the Law â—â—pposeth that at this age they are able to â—â—rform those things which belong to Husâ—â—ndry But Tenants by the custome called â—avelkinde being sixteen years old comâ—â—eat may alien their Lands by Feostment â—â—thout license from their Guardians g Dyer fo 301. n. 41. Fitzh Custome 11. Brook ibid. 50. 3. So also Tenants in Burgage who are â—â—fants their Father or Ancestor being dead 〈◊〉 committed for the same reason which â—enant in Socage are to the Custody of â—â—eir Kindred From whence they are freed 〈◊〉 soon as they shall be able discreetly to â—unt Money and measure Cloth and perâ—â—rm other such like businesses But in this â—â—se the certain time is not defined but is adâ—â—dged by the discretion and maturity of the â—eires h Bract ubi sup Flet. l. 1. c. 11. 4. A Woman is supposed to be of perfect â—ge in Socage in all cases so soon as she is aâ—e to know how to dispose of her house and 〈◊〉 do those things which belong to the disâ—â—sing and ordering her Family and is able 〈◊〉 understand what appertains to Cone and â—â—ey which cannot be before she be fourteen 〈◊〉 fifteen years old because this age requires â—â—der and judgment i Bract. l. 2. c. 39. n. 2. 5. A female Heir was according to somâ— ancient writers judged equall with a malâ— as for years according to the diversities â—… Tenures viz. That she should have the samâ— age in Burgage and Socage as a male â—… wit fifteen years And in Chivalry likewiâ—… as the male viz. 21. And that then â—… Wardship should end But according tâ—… others a Woman is said to be at full age iâ—… Chivalrie at fifteen for then they say she able to order her house and to marry a Huâ—…band who shall be able to perform Servicâ—… for her k Bract. l. 2. c. 37. n. 3. But our moderns define otherwise and here they put a difference whether she be fourteen years old at the death oâ—… her Ancestor or not for if she be she dâ—… immediately receive the profits of her Lanâ—… otherwise not till she comes to sixteen l Instit Jur. com c. 24. Lit. 2. c. 4. 6. Guardian in Socage shall give an aâ—count of his Office to his ward when tâ—… Wardship is out m Lit. l. 2. c. F. B. 118 119 262. Flet. l. 1. c. 12. But he may commit tâ—… Custody of his Ward to a stranger and hâ—… Grant shall be good n F. B. 143. P. Of Disfranchisement or Deminutio capitis TIT. XVI THat which the Romans called Deminâ—… coepitis and devided into three kindes 〈◊〉 so distinguished by the English Notwithâ—â—â—nding that we do tacitely acknowledge it â—â—uble by our Lawes That which they tearâ—â—ed the least we wholy omit for those which 〈◊〉 emancipated by their Fathers do not â—â—ose the Right of their former family But 〈◊〉 they may at least making a partition 〈◊〉 Goods and Chattells be received as to 〈◊〉 successiion or Inheritance of an Intestate 〈◊〉 those who are adopted by others have 〈◊〉 rights of their new faculty either â—â—on the sole agreement or the expressed â—urtesy of those by whom they are adopted â—â—thout assistance of the Law required or â—â—pected a Sup. tit Adopt 17. 1. Those who are Servi paenae namely â—â—ose which have sentence for Treason or â—â—lony loose all that can be lost Not only â—â—eir Freedome and Liberty but even all â—â—at they have and their lives also b Stan. placit Coro l. 2. Prerog c. 44. Nor â—â—ve they other Successor then the Excheâ—â—er or the Lord of the Mannor as we shal â—â—ew else where c See the 4. Book tit of Pub. Ju. and therefore we may â—â—th reason call this the greatest Disfranâ—isement or Capitis diminutio 2. And although the ancient Law which â—â—nished d Brac. l. 3. tract 2. c. 16. Brit. c. 16. those who took Sanctuary for reason be abrogated e 22 H. 8. c. 14. 36 H. 8. c. 13. 28 H. 8. c. 7. 32 H. 8. c. 12. 33 H. 8. c. 15. 1 E. 6. c. 12. 2 E. 6. c. 2. c. 33. 5 E. 6. c. 10. yet at this day â—ere are certain crimes which are punished â—â—th abjuration f Ch. de Forrest c. 10. 13 Ed. 1. c. 35. 25 H. 8. c. 14. 35 Eliz. c. 2. but those who undergo â—â—is penalty seem to undergo the lesser disâ—anchisement or that which the Romans â—â—lled Medium capitis diminutionem 3. That which was tearmed Cognationis jus 〈◊〉 the lesser and more inferiour Capitis diminutio and seems to be wholy taken away with us for those who abjure the Realâ— are wholy thrust out of protection g Bract. Brit. ut supra anâ— those who are out of the Allegiance of the supream power of England have nothing iâ— England h Bract. l. 5. c. 23. n. 3. Of the lawfull Guardianship of Lords or Patrons TIT. XVII OUR Lawes do not decree any thiâ—â— that I know concerning that Patronâ—â—â— Tutela which the Roman Law mentions 〈◊〉 we have another kinde
different Species k â—it l. 2 c. 9. Inst Jur. Com. 27. Broo. tit Tenures 69. but Fleta will not have this duty exceed the value of half a mark l l. 1. c. 11. 4. Castle-gard we have defined to be a service due to the King only Which is originally true because no man can erect a Castle or Fort in the Kingdome without the Kings License but in case the King granteth a Castle with all the liberties belonging to it unto a Subject he grants Castle-gard also if there be any such Service due unto iâ— And for this reason this Service may as well belong to a Subject as the right of a Forrest m Manwood par 1. de Jur. forset pag. 87. Cov. col 4. fol. 88. a. and Lit. c. Socage It is a Service consisting in fortifying and defending any Castle of the Kings or another Lords as often as the Feodary shall require And this is properly Knights Service when it requires the Person of the Tâ—nant but when it is converted into a certain pecuniary mulct payable every year for the fortifying and guarding of a Castle it is altâ—red from the nature of Knights Service n Tit. ib. Inst com c. 27. Bro. tit Tenures n. 58. F. n. b. fo 259. A. 5. The second sort of Knights Service or Military which is due to common persons as well as to the King is called Scutage o Plow fo 126. 129. from Sculum a sheild And he that holds by this is obliged at his own Charges for a certain number of daies to follow his Lord in the Warrs against the Scors p Lit. l. 2. c. 3. They who hold by an intire and whole Knights Fee q Camd. Bâ—it 111. which sâ—me determine to be 680. Acres of Land some eight hundred Acres some fifteen pounds Sterling some twenty pounds r 1. Ed. 2. c. 1. and others forty pounds s Smiths Com. c. 18. are bound to serve for the space of forty dayes t Bro. Tenures n. 19. they which hold but by halfe a Knights Fee twenty daies and so accordingly u Lit. l. 2. c 1. 6. Now that certain differences between Lords and Feodaries as well concerning Armes as the time of Serving viz. whether from the time of shewing or perfecting to begin might be removed it appears in most places that it is by ioynt consent of Lords and Tenants agreed that the Tenants shall pay yearly a certain summ of Money to their Lords according to the value of their Fee and so to be freed from personall duties w id ib. from whence the thing it self seems so changed by degrees that that service which with our Ancestors was so incertain is in most Fees at this day reduced to certainty and is called Scutage certain x Lit. l. 2. c. 5. that incertain kinde being in divers Mannors quite extinct now this certain Seutage is Socage y Bro. tit Tenures 28. 29. 7. There are also other reall Services which atâ—end a Knights Fee as the shadow doth the Body as Homage Fealty Custody of Land and Heires Releife Marriage z Brac. l. 2. c. 35. Lit. l. 2. c. 4. for these no time hath hitherto exterminated a Polid virg hist ang 16. 8. Homage which the Feodists call also Hominium b Hottom disp de feod 3. is a reall Service c Briâ— c. 66. spec Jâ—sâ— b. 3. Flet. l. 3. c. 26. which the Feodary yeilds regularly to his Lord at his first institution by prostrating himself on both Knees at his Feet with his head uncovered ioâ—ning his hands and putting them between his Lords who remains sitting and proâ—â—uncing these words or to the same effect Hear Sir I become your man from this day forward of Life and Limbe and of earthly worship and shall bear you Faith for the Lands I hold of you and if it be not the King that receives the Homage saving alwaies the faith which I owe unto our Soveraigne Lord the King so God me help and the Contents of this Booke which said the Lord shall kisse him d Bract. l. 2. c. 35. n. 8. 9 Lit. sect 2. l. 1. Inst Com. c. 23. 17. E. 2. Brit. c. 68. 9. Ranulphus de Glanville denieth than Bishop who is consecrated or a Woman may do Homage e l 9 Spec. 9. Inst l. 1. But Fitzherbert f N. B. 258. f. according to the Rule in the Register affirms that a woman if single may swear Homage and Fealty to the King when from him shee receives Livery of her Lands and our more modern Authors hold that both Clergy and Women are subiect to this Service although the termes of expression is a little different For a Clergy man for that he hath set himself a part for the more speciall service of God useth these words I do Homage to you and shall bear your Faith for the Lands and Tenements which I hold of you saving alwaies the Faith which I owe unto the King our Soveraine g Inst Com. c. 23. Lit. l. 2. c. 1. and a single woman doing Homage doth not say unto her Lord I become your Woman for that it is not convenient that she should be another mans woman then her Husbands whom she shall marry But she shall pronounce the same words which are prescribed to the Clergy h Id. ib. and a woman who is married shall do Homage by her Husband i Id. ib. 10. If it happen that any one hâ—lds divers Fees by Knights Service of diverse Lords he â—all do Homage to them all but shall use â—â—ese words in the end saving the faith which owe unto our Soveraine Lord the King and â—nto my other Lords k id ib. 11. Now it is to be understood that Hoâ—age is alwaies annexed to Knights service â—ut not solely to it for Tenant in Socage â—ay also do it l Brac. l. 2. c. 35. n. 6. 12. Homage is divided into new and anâ—ient called Auncestrell new is that which 〈◊〉 performed by him who hath a new Fee m Instit Com. c. 28. Lit. l. 2. c. 7. â—ncient by him who hath an ancient one â—nd that ancient hath a double effect one â—hat the Lord shall secure to his Tenant his Estate or fee or as our Authors say shall warâ—ant it against all men The other that he â—hall save him quiet and harmlesse from any Services of another Lord at least in respect or relation to that Fee 13. Fealty which our Authors also call Fiducia is a reall Service n Brit. c. 66. due from every Tenant to his Lord at his first induction whether the Fee be noble or ignoble for such is the disposition of this contract that whoever holds by Fealty only holds the most freely of any one except the King o Smith Com. l. 3. c. 8. for no Subiect can hold without Fealty p Lit. l. 2. c. 5. west Simbol l. 2. Sec. 303.
party slain s 8. Things immoveable whether corporall or incorporall have divers Prescriptions The most usuall is that which is called the longest and is extended beyond the memory of man for whosoever will prescribe against another the maintaining of a Chaplain to celebrate Divine Service in any Church c new bo Ent Act. in Chaplein or the repairing of a Church d Eod tit in reparations or that being present at the Election of the Master of an Hospitall e Eod tit Quare im edit in Hospitall or an Annuity f Eod. tit Annuity in corp politique or the Cognisance of any Plea in his Court g eod serm de breif or any service in his fee h eod Replev in amerciament F. n b. fo 122 he muâ—â— prove them to have been time out of mind or he doth nothing nor do we mean any other then this when we speak generally of Prescription i Dr. Stu l 1 c 8. 9. But there are Prescriptions of shortâ—â— time as of 40 years in the way of Tithing k 2 3 E. 6. c. 13. five years for Lands and Tenements in case of a Fine acknowledged lawfully l Dr. Stu. l. 1 c. 25 l. 2 c 14 Lit. l. 3 c 7 Inst com c 27 Plow 357 Dier fo 72 n 3 of three years in Case of Lands and Tenements held gotten by forcbile Entry and held so long in quiet possession m 8 H 6 c 9 of a year and a day for a villain to assent his liberty against his Lord if he have continued so long in ancient Demesne or in any of the Kings Cities or Towns without being claimed oâ— molested n Flet l 2 c 51 F n b fo 77 as also for the Confirmation oâ— any Deed made by one who is in Prison unlesse he who made it do in the interim revoke it o Liâ— l 3 c 7 Brac l 4 tr 1 c 2. n 7 Brit c 42 Plow f 357 and 372 new Terms ver non claim so also for the hindering the Entry of him who having omitted continuall claim in case of his being uniustly disseised of those Lands and Tenements if he shall endevor to recover them so coming by the right of Succession to the Heir of the Disseisor p Brit c 34 Perk grants 29 10. No prescription of time shal prejudice the Supream Power q Id c 34 Bra l 2 c 5 n 7 nor any Lord but that he may challenge the perquisite of his villain r Brac ib 11. Nor is there a Prescription in all things as for example not in those which are not subiect to commerce nor in those of which the Crown is properly sole Lord s Lit l 2 c 11 nor where the use is repugnant to reason and good manners t Id ib Brac tr nor in case where an alienation cannot be made without an instrument u Brac l 2 c 19 n 4 1 c 38 n 13 and it is agreed amongst some of what things a prescription cannot be and received generall with us that no prescription in Lands maketh a right w Dr. Stu. l. 1. c. 8. 12. Nor can a prescription be of those pertinencies whose principles have not a perpetuall and durable continuance x Dier fo 70. n. 40. or of those things whereof no one can tell what he or his Ancestors particulerly whose Estate he hath did possess y Id. fo 71. n. 42 And lastly a Prescription is of no validity against a Statute afterwards made z Id. of 373. n. 13. 13. It was much controverted among the Ancients how long after one might bring his Writ of Right after the title or Right to Lands or Tenements c. have laine dormant or his Assise or Writ of entry to gain a possession as it were lost by him to whom it appertained a Thaleat Digest br l. 10. c. 21. but this whole Controversy is composed by the prudence of Parliament which hath provided and fitted apt remedies for the difference in each case b 32. H. 8. c. 2. Coo. l. 4. Bevils Case fo 10. â— Of Gifts TIT. VII THere are many waies of Acquisition by the civill Law viz. By way of Gift succession Testament and others as shall appear hereafter a Bract. l. 2. c. 4. Flet. l. 3. c. 2. but in regard that amongst all the other causes the most great known and famous is that of Donation or gift therefore it doth worthily challenge the first place for that by it there is a more great and frequent acquisition then any other b Brac. cod c. 5. n. 2. Brit. c. 34. 1. Donation is a certain institution which proceeding out of meer Courtesie and will without any coercive or compulsive Law or Right transfers a thing unto another And to give is to render a thing his that receivs it effectually otherwise that Donation or Giving were uselesse which could be revoked and made void c Bract. eod n. 2. Brit. ib. Flet. l. 3. 2. Our Authors do frequently call a Donation a Feoffment but the word Donation hath a greater latitude for that it doth not only comprehend a free alienation of immoveables but of some moveables also d Bract. l. 2. c. 26. yet in Lands these appellations are distinguished thus A Feoffment is of a Fee simple to the Donee or Feoffee and a Donation or Gift is of an Estate taile e Lit. l. 1. c. 6. 3. Donation in the largest signification is thus divided viz. That it is either amongst those who are still living or upon occasion of Death Of which we shall speak hereafter f Brac. l. 2 c. 5. Flet. l. 2. c. 57. Of gifts some are simple and pure as namely those which proceed no Law or right either civill or naturall inforcing no Reward Fear or Force interveneing from the meer free bounty of the Donor and where the Donor will not in any case that the thing given should revert to him g Brac. l. 2. c. 5. n. 3. and l. 2. c. 10. Flet. l. 3. c. 3. and c. 8 another is from a future Cause namely where any cause is interposed for which a thing shall or shall not be h Dier fo 33. n. 34. under which kinde fall gifts by reason of Marririage Dower i Glan l. 7. c. 1. and c. 18. Bract. l. 2. c. 7. Flet. l. 3. c. 9. or Death c. As if one gives any thing with such an intention that it shall be the Donees when a subsequent thing is performed And these kinde of Gifts are not properly Donations when they are conditionall k Bract. ib. Bri. c. 34. F. N. B. f. 205. h. Flet. l. 3. c. 11. but Donation is sometimes with relation to a cause past l Brit. c. 35. lit c. 5. fo 76 and sometime with relation both to past and future causes m Plowden fo 455 n Bract. l. 2. c. 5.
g West Simb part 1. l. 2. Sec. 149. 23. H. 8. c. 6. 37. H. 8. c. 9. Coo. l. 3. Herberts case fol. 11 12. 5. A Statute Merchant is an Obligation in writing sealed and enrolled or upon Record as we say witnessing the Debtor to owe unto the Creditor such a summe this is acknowledged before such persons as are appointed by the Statute As Clerks who from their Offices are called Clerks of the Statute Merchant the Maior principall Guardian of London or two Merchants 〈◊〉 the same City especially appointed Or else the Maior Recorder and other fit men of other Cities or Burroughs which have this power and they are sealed both with the Scale of the Debtor and of the King for the King hath a speciall Seale for this purpose divided into two equall parts whereof the one which is least is committed to the care and custody of the Clerk of the Statutes the other to the Maior or Gardian The body of the Debtor is lyable to be taken upon execution of this Obligation if he be a Lay-man and can be apprehended But if he be not or cannot be taken within 3 moneths to make satisfaction his Goods and Lands are lyable h West ib. sec 151. 13. E. 1. st 3. 5. H. 4. c. 12. But if the Debtor be in prison the Creditor must afford him Bread and Water i F. N. B. 116 O. 133. C. 13. E. 1. Stat. 3. Broo. Stat. 15. 6. A Statute of the Staple is double one properly so called the other improperly That which is properly so called is an Obligation inrolled or recorded which is acknowledged in the presence of the Maior and of one or two of the Constables and sealed by him Now by force of this Obligation if the Debtor make default in payment the Creditor by authority of the Praetor seiseth and detaineth the Body Lands and Goods of the Debtor untill hee be satisfied â—rovided he be found within the limits of the Staple or that his Goods may be taken But if neither his Body nor sufficient of Goods be found there the Chancellour of England upon Certificate of the businesse unâ—er the Seale of the Maior decrees further That both his Body and Goods wheresoever they â—e found shall be taken and his Lands extenâ—ed untill satisfaction made k West ib. sec 173. 27. Ed. 3. St. 2. c. 9. 7. That which is improperly called a Staâ—ute of the Staple is an Obligation acknowâ—edged before either of the Cheife Justices Or in their absence before the Maior of the Staple of Westminster and the Recorder of London and it hath the same force in Execution as the other But it is called so improperly because it is not only used as the other among Merchants but according to that Example amongst all the Subjects of England l West ib. sec 55. 23. H. 8. c. 6. 8. It hath been often questioned whether that little peice of wood which wee call a Tallie with an Obligation written upon it and sealed with the Seal of the Debtor may be called an Obligation in writing But because letters written in wood may be easily raced out and altered it was resolved unfit to allow and open so apparent a way to deceiâ— m Bro. oblig 80. F. N. B. fol. 121. l. 9. These conventional Obligations ought to be in the first person those which are in the third being of no force though some will have these being made amongst Clerks in other Nations beyond Seas valid n 38. E. 3. c. 4 Bro. Oblig 51. 65. 10. Amongst those Obligations in writing which wee call Faits or Deeds there are some things so essentiall that an Obligation cannot be good without them other things lesse necessary and essentiall Of the first sort are writing in Paper or Parchment Of the second Inditing and Form The omission of which doth not invalidate the Obligation o Coo. l. 2. Godwards caâ— fol. 5. Dyer sol 192. n. 26. Of Obligations made by Consent TIT. XXIII OBligations are not only by writing and words but by Consent as in Contracts which are bona fide namely Bargains and Sales Lendings and Borrowings Partnerships and Hirings Wherefore these kind of Obligations are termed Contracts by consent in regard writing and Presence is not alwayes necessary a Glan l. 10. c. 14. Brac. l. 3. tr 1. c 2 n. 9. 1. Wee must not here omit that our ancient Lawyers called those Obligations which were contracted by the Thing Words and Writings or Consent not so much Contracts as the compleatings and perfectings of Contracts to which they adde Livery and Joyning b Brac. l. 3. tr 1. c. 2. n. 1. Brit c. 28. that is an accumulation of Agreements or adding Agreement to Agreement c Flet. l. 2. c. 60. For a Contract cannot be without consent and therefore possible it was for that reason The other Formes were rather Ornaments and Compleatings because the Consent is chiefly materiall and is in all as giving being to a Contract and something more wherein the Consent is declared and proved 2. We have spoken susticiently before of Livery The joyning which we here intend is where many Agreements for one and the same thing are reduced into one Covenant For many Agreements and Parts may be reduced into one Covenant as well as many things d Brit. ib. Brac. ib. n. 11. Of Bargaine and Sale TIT. XXIV BArgain and Sale is where there is an Agreement concerning a price betweene the Contracters there being something received by the Buyer by way of Earnest that being an Agreement of the Bargaine and Sale contracted unlesse there be a day given for payment in which case it is not necessary a Bro. Cont. 15. Action sur le case 60. But if there be any Writing intervening the Bargain and Sale cannot be perfect unlesse it be delivered to the parties and absolute And where there is neither writing intervening nor any Delivery followes they are at liberty and the Contractors may without penalty recede b Glan l. 10. c. 14. Brac. l. 2. c. 27. n. 1. Flet l. 2. c. 58. But if there be any thing given by way of Earnest before any Delivery and the Buyer repents of his Bargain so that he desires to recede he shall loose what he gave And in case the Vender repents hee shall make restitution double c Glan ib. Brac. ib. n. 2. But if the price be paid or part of it and Delivery followes the Bargain and Sale shall be perfect Not can either party recede under pretence of non-payment of the price in part or in the whole But the Vendor may have his Action and recover what is wanting of the price but not the thing it self d Id. ib. 1. Now it is necessary that the thing sold be certain or reducible to certainty and a certain price agreed upon For there can be no Bargain without a price certain Nor can demand
other Ornaments or Oxen either giving or promising hire such a care is required of him as a diligent Master of a Family would have which being had if the thing by accident happen to be lost hee is not bound to make restitution unlesse it be agreed otherwise Nor is it sufficient that he have such a care of them as of his own goods o Brac. ib. Dr. Stu. l. 1. c. 23. l. 2. 6. 4. Flet. l. 2. c. 59. 5. Letting of Lands and Immoveables is at this day the greatest occasion of suits of all others wherefore it is requisite that wee should speak more largely in this place of these particulars Every one may make a lease of Lands who holds them in Fee whether he have Fee-simple or fee-Fee-taile and whether he be possessed in his own Right in the Right of his Wise or of a Church p 32. H. 8. c. 28. which is also true in those who hold as Partners q Lit. l. 3. c. 3 So also Cestuy qui use r Id. ib. c. 5. a body politick may make a lease but not without writing s Bro. lease 32. 42. As also he who hath a Free-hold t Id. ib. 4. or a Lease provided he exceed not his term and Guardians until their Pupils and Wards come to age 6. He that hath a Fee-simple in his owne Right may make a lease for as many years as he pleaseth provided it be not to a Body politick lest by exceeding it seem a Demise in Mortmaine u Bro. ib. 47. He who hath a Fee-tail in his owne or Fee-simple in anothers Right viz. either in the right of a Church or of his Wife is tied a little more strictly for that they cannot lease Land by a new lease which is already let for above the term of a yeare Nor any which were not usually wont to be let within the space of 20. yeares past nor those for a lesse rent then they formerly were let for or for a longer terme then 21. years or three lives and that without permission of waste To these also may be added that he who hath a Fee in right of his Wife may let it joyntly with his Wife but hath no power to alienate the Rent but it shall come to the right Heir of his wife after her decease w 32. H. 8. c. 28. 7. Arch-bishops Bishops cannot let the Lands of their Churches for above 21. years or 3. lives to be accompted from the beginning of the lease nor for lesse Rent then it formerly went for nor for lesse then formerly it used to be let for x 1 Eliz. not printed Dyer fo 145. n. 65. 8. Masters and Fellowes of Colledges Deans and Chapters Wardens of Hospitalls and all Ecclesiasticall persons are prohibted y 13. Eliz. c. 10. to let their Church or Colledge Lands for more then 3. lives or 21. years to be accompted from the beginning of the lease nor this without their private Statutes permit Nor so unlesse the lease which is on foot if there be any be within three yeares of expiring z 18. Eliz. c. 11. Besides the Colledges of both Universities as of Eaton and Winchester are obliged to take the third part of their Rent in Corn a 14. Eliz. c. 11. Yet are they not prohibited from letting freely those Houses which they have in any City Burrough Towne corporate or publique Market Town with the Lands belonging to them provided they exceed not ten Acres according to the Common Law of England if it be not contrary to the private Statutes of their Colledges b Id. ib. 9. It is not without reason questioned whether a Prebendary of a Cathedrall Church may lawfully let part of his Prebendary procuring the said Lease to be confirmed by the Dean and Chapter without any consent of the Bishop the Bishop being both Patron and Ordinary of every Prebendary but continuall and daily Custome hath rendred his consent unnecessary and uselesse c Dyâ—r fol. 61. n. 30. 10. Those who have Benefices cannot make a Lease for any time longer then they reside there the liberty of being absent 80. dayes every yeare being alwayes permitted them unlesse by the Lawes they are permitted to have two In which case in regard hee cannot possible continually reside at both he may let one to his Curate d 13. Eliz. c. 20. 11. Lands and Tenements are often let for the life of the Lessee e Lit. l. 1. c. 6. or anothers life f Id. ib. or for more lives g Id. ib. or for terme of years h Id. ib. or lastly for a life and afterwards that being expired for a term of years i Bro. leas 51. and that either by writing or without k Littl. ib. nor by Indenture only but by Deed-Pol l F N B 148 12. But if any one letteth his Lands by writing or without not mentioning any tearm but giving the Lessee possession He is presumed to let them for the life of the Lessee m Lit. l. 2 c. l Plow 152. 13. There is no need of giving possession to a Lessee for years for he may enter by vertue of his Lease unlesse besides the Lease there be a Grant of a Remainder to another for life or in fee in the same Deed n Lit. l. 1 c. 7. for if a man makes a Lease of lands for years though he were Lessee before yet he doth rightly take possession of the said Lands by this means o Id ib 14. Lessor is bound to warranty to the Lessee for the Lessee being ejected before the terme ended may have his Action of Covenant against the Lessor p F N B fo 145 M Dier 328 n 8 and that whether he be disseised by the Lessor himself or by a more ancient Title nor only he but his Assignee q Id. ib 15. But if a third person eject him against Right he shall recover damages against the Ejector r Id ib unlesse the Lessor agreed by Indenture that in case the Lessee were ejected he should have his action of Covenant against him s Id id 16. Lessee for life by Indenture in regard he hath a Free-hold shall not have an action of Covenant against the Lessor in case he eject him before his tearm ended but an Assise t Id. ib. 17. Where a Lease is but for a year and so from year to year the Lessor cannot eject the Lessee at the end of the Tearm nor can the Lessee go out against the will of the Lessor For whosoever of them would recede from the agreement ought to give the other warning u Bro. lease 13. 22. 18. Lessor cannot remove his Tenant at Will so as to hinder him from taking the profits of his Seed or Corn sowen or without granting him convenient time to remove his Houshold stuff because the time is well enough force-seen and known to him