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
although he had it not at first upon this Score yet since the Owner himself suffers him to injoy it upon this or another account it becomes his In the same manner if any one be in possession of anothers right without a iust precedent cause namely by Intrusion or disseisin and the owner wils that the Intruder or Disseisor shalâ— have it it shal be his although the owner were not possessed of it at all it being supposed that possession and property in the thing came unto him by the owners Will as from him and by his own hands k Bract. l. 2. c. 18. n. 2. Lit. l. 3. c. Releases Flet. l. 4. c. 20. 41. Things sold and delivered are no otherwise the Buyers then as paying the seller for them or otherwise satisfying him as by pledge or earnest l Bract. l. 2. c. 27 n. 1. Flet. l. 2. c. 51. Dyer f. 76. n. 30. unlesse the seller lets him have it upon his Credit m Dyer f. 30 n. 203. Plow f. 432. f. 5. 9 42. Where Livery is to be given to any one either by the owner himself or his Attorney of any house by it self or of any Messuage by reason of a Fee to that intent that the Donee should have the possession untill a certain Term with all the rights and Appurtenances It is not needfull in this case to go round all the Land or set ones foot in every part or parcell of it but it sufficeth if Livery be given by a Doore or by the hasp or Ring of a doore For by this means he shall be in possession of the whole by the intention and view and by the consequences of possession but if there be no house he may have seisin as it is commonly called by a staff or twigg and the meer setting of the foot upon the Soil with a desire of possessing and an intention of the Donor is sufficient notwithstanding that it doth not immediately inure to take its effects n Bract. l. 2. c. 18. n. 2. but without Livery of Seisin a Free-hold passeth not either by Feoffment Gift or Lease o Brit. c. 33. Bract. l. 2. c. 19 Doct. Stu. c. 7. f. 14. Lit. c. Attornment Perk. from f. 206. to f. 216. 43. Those which the Romans cal'd Missilia or the Liberalities which Emperours and Princes scattered among the People are not so frequent with us as they were with them yet we have some mentions of them which carry the same Right with them as when the Conduits of London at the Coronations of Kings or other such like solemnities 〈◊〉 with Wine every one hath a property in the Wine he there takes p Bract. l. 1. c. 12. n. 10. Fle. l. 1. c. 43. 47 44 Whatsoever is left and forsaken ouâ— Lawyers term a Waife this was formerly by naturall right the finders but now by ouâ— custome it is the Kings q Bro. tit Estray Waife that also it called a Waife when any personall or moveable Chattell is felloniously taken and being through the fear of tâ—e Felon left hath no owner to claim it r Kitch f. 12 b. n. 39. wherefore if any such thing be found it is the Kings or the Lords of the Mannor to whom this liberty and priviledge is granted by the King yet so that Restitution is to be made if the Owner claim it within a year and a day s Brit. c. 17. 45. So any beasts that are found straying in any ones ground follow the custome of things left for even these also were by out ancient writers included under the name of Waifes t Bract. l. 1. c. 12. n. 10. Fl. l. 1. c. 43. 47 but others call them by a more particuler name Estrayes u Brit. d. c. 17 which our Latines render Extrahura Because for the most part they break forth and stray against their owners will and these after a year and a day if not claimed by their Owners within a year and a day Escheat to the King or the Lord of the Mannor where they were taken Provided they be duly cryed and proclaimed in the Neighbouring Markets w Brit. ib. 46. The same is to be understood of things cast out of a ship in a Tempest to lighten the ship or of such things which happen to fall out of a Cart when it runs the owners not â—owing of them but in case of Shipwrack which we call a Wreck where neither any 〈◊〉 the Passengers nor any Catt or Dogg â—â—ts from the Ship to the shoare a live whatâ—â—ever of the Goods or ship shall be cast upâ—â— the Land by the Sea shall be the Kings 〈◊〉 the Lords of the Fee to whom the King â—â—th granted this priviledge x Brit. d. c. 17. Westm 1. c. 4. 47. No man can have any property of â—ands in England before he be a free Deniâ—en y Bract. l. 5. tract 5. c. 25. n. 3. Bro. tit Corporation 26. Dyer f. 2. n. 8. f. 224. n. 29. for that whatsoever is purchased by â—n Alien is forfeited to the King z Bro. Denizen 16. Of things Corporeall and Incorporeall TIT. II. THere are moreover of things some which are corporeall and some which are Incorporeal Corporeal are such as may be touched as Land ground things immoveable and moveable which can move themselves as living creatures and the like or which may be moved Things which are Incorporeall are such which can neither be seen nor toucht as rights and Priviledges the right of walking acting conveying of water and the like a Bract l 2. c. 12. n. 3. Flet. l. C. c. 3. Plow f. 170. Now rights and Services are the same but have their appellations from a diverse respect b Bract. l. 4. tr 1. c. 37. To this may be added the right of Pasturing which we cal common of Pasture Fishing digging of Turfes felling in otheâ— mens Woods the right of presentation to 〈◊〉 benefice distinct from an Estate of Inheritance which is by us called Piscaryes Turnryes Estovers c Id. ib. Advowsons in grosse d Bro. Tenure n. 15. 18. And lastly an Annual Rent e Doct. Stu. c. 30. now this cannot be said properly to be in possession but 〈◊〉 it were f Bract. l. 4. tr 1. c. 37. l. 2. c. 23. Mynsâ—n ad rubr Instit 1. For things moveable or immoveable our Law determineth Quatenus to the Persons and as they either are or are not in the poâ—er or property of man g Id. ib. Now property is 〈◊〉 full and absolute right of disposing of or selling any thing corporeall unless the Law any condition hinder h Gothof ad rubr â— de aqu rerum dominio Lit. l. 1. c. 1. Bract. l. 2. c. 21 23. Brit. c. 40 Possession or Seâ—suâ—e In Dominico c. Is properly of corpore all things and incorporeal we only say as of Fee For that they are
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.
because that had this Condition annexed viz. I ordain A. mine Heir and if he will not be Heir then my will is that B. shall be my Heir e Inflit. eod now this of ours iâ— not bound but is rather tacitely imposed contrary to the Legator as namely thus I give and bequeath such a Fee to A. and if he accept it then I will that such or such shall be his Heir or Successor f Westminst 2 c. 1. Dr. Stu. l. 7. c. 24. 2. In like manner if we bequeath any thing conditionally to any one we make Substitution to another in Case the condition be not performed for Example I give a hundred pounds to A. when he shall marry a Wife or if he shall not get a son of my Daughter lawfully then I give the said hundred pounds to B. Of Pupillary Substitution TIT. XVI IN this Substitution we do not so much regard the power of our Countrey as the liberty of tâ—e Testator so that a Legat oâ— may make a Substitution Pupillary either to his own chidren or to strangers Legatees who are under age As I give to A. my own child or anothers a hundred pounds when he shall come to age and if he shall die before then I bequeath the same one hundred pounds to B. But in regard that Cases of Wills are for the most part tried in the Ecclesiasticall Courts and by the Rules of the Civill and Pontificiall Law a Bra. l. 2. c. 26 n 2. therefore our Law hath as it were past by for the most part this and other things of the same nature and leaveth them to be determined by the Civill and Pontificiall Law How Wills are invalidated TIT. XVII WIl ls cannot be justly made ab initio by those who are not permitted to make Wills those who are we have mentioned before they may also be nulled by a later Will a Perk. 476. 479. 480. Fulb. paral Devises fo 47. or invalidated by Treason c. as where one is condemned for Treason or Felony after his Will made b Stan. pl. corp l. 3 c. 20. and c. 32. or if the Testator revoke his Will or be deprived of the Executor whom he named c Bro. Exec. throughout 1. Suppose A. make two Wills one in the sixth the other in the eighth year of Eliz. at length he is sick and speechlesse B. his familiar friend comes unto him giveth him into his hands both the Wills and desires him to return that which he would have stand for his Will A. returns that which was made the sixth yeare in this Case that will which he returned shall be esteemed the later d Perk. 479 2. And it happens sometimes that a mans will which according to the Civill Law is ambulatory or alterable untill Death cannot be altered in regard of prejudicing another Contract upon which account the will was made for Example A. is seised of Lands in Fee which he alienates to B. upon condition that they shall be his for life to the use of the said A. the Remainder e in ip Co. I am arcisc l. omnium 19 C. de Testa f Dier fo 49. n. 12. to C. and his Heires for ever and upon this A. makes his last will after having given the possession to B. This will quatenus to the alienation cannot be nulled by a later and the Reason is because the use of the said Lands do immediately belong to C. to whom the Remainder is transferred so that he may immediately sell them if he please g Id fo 325. n. 73. Perr 480. Of those Wills which were called by the Civilians Testamenta inofficiosa TIT. XVIII THe Plaint or Action in the Case of Testamentum inofficiosum is not in use with us for as concerning Lands holden by Knights Service in case the Father do not leave his lawfull Heir either while he lives or at his death a third part according to the Statute the will is void as to that part a 32 H. 8. c. 1 so that the Heir may notwithstanding take possession thereof or else if he have gotten it he may immediately himself refuse b Brac. l. 2. c 30 n 2 the parcell bequeathed or quit it or remove it by Law c Id ib 1. For the disposing of Chattells there are severall Customes in severall places of which there remain very clear signes in the ancient writers of our Law d Glan l 7 c 5 and 7 Brac l 2 c 26 n 2 but by the Common Law the Testator had alwayes a Free will of disposing e Id ib wherefore that writ which is called Breve derationabili partebonorum which liâ—s for the wife or children against the Executors for the recovery of part of the Goods f Regist fo 142 b F n 122 â— is not generall but peculiar to certain Countreys where the Custome is that Debts being paid the Remainder should be divided into parts viz. one part to the wife the other to the Children and the third to be left at the will of the Testator Of the Quality and difference of Heirs TIT. XIX HEirs as they are taken with us were necessary in time past as to the driving an Inheritance from our ancient Predecessors to the next Ancestor a Glan l 7 c 1 as they are now with us as to part b 32 H 8 c 1 and that not onely as to a Succession in the Estate but also as to the drawing upon themselves the Debt of their Ancestor c Brac l 2 c 16 n 7 and they were also for ever bound and obliged to warranties that is to the assurances which either they or their ancestors ingaged and promised to those to whom they sold any Land 1. But for that it is evident that children naturall and legitimate are preferred before others to Succession it were not amisse to see the Estate and difference of Children which really is very much for of Children some are naturall and legitimate and of this sort some are Sons and Heirs some Sons but not Heirs some also are Heirs of the Father some of the Mother some both of Father and Mother some also are not Heirs although legitimate and naturall some by accident begin to be Heires and some cease to be so so also of naturall and legitimate Issue some are near some more near some are removed some more removed d Brac. l. 2. c. 29 30. Brit. c. 118. Coo. l. 3. Ratc. Case fo 40 41 42. Plow 28. Flet. l. 6. c. 1. but of this elsewhere Of Devises TIT. XX. THat kind of Donation which is in Case of Death is where the Testator had rather that himself should injoy the thing bequeathed then that the party to whom it is bequeathed should have it and yet that he had rather that the party to whom it is bequeathed shall have it then his owne Heire a Brac. l. 2. c. 21. n. 1. 1. Our Common Law
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
certainty by the Legatee c Fulb. par 38. b. 16. There hath been a great difference in opinions amongst our learned Lawyers and that according to the diversity of Species in the cases of Corn c. sowen by those who had Land in possession and not severed from the Soil For example Tenant in Dower sowes Corn and dies before Harvest She may devise the Corn though not yet ripe d Perk. 521. Stat. Merton c. 2. Flet. l. 2. c. 37. which is true also as to those Lands which she holds Joyntly or severally under the notion of Dower e Perk. 513. Fulb. 17. â—ural Devises 38. 17. But if contrary to custome she be endowed by the Guardian of the Heir and dying leaves Corn growing her Executors may be ejected by the Heir when he comes to age and hindered from gathering the profits f Perk. 524. So if the Heire coming of age recover Lands against his Mother or Widow of his Ancestor in a writ of Admeasurement of Dower he shall recover not only the Lands but the Corne also which is by him deviseable g Id. ib. 18. Tenant by the Courtesey leaseth forth his Lands and dyeth The Lessee shall reap his Corn and may if he dye before it be ripe devise it h Id. 514. which may also be done by a Parson of a Church as to his glebe Lands i 28. H. 8. c. 11. 19. So also he who hath Lands in right of his Wife his VVife dying after the Corne sowen may reap the benefit ar devise it k Perk. 518. Lit. l. 1. c. 8. which his Lessee also in case hee have leased out the said Lands may doe l Perk. 513. Fulb. par fol. 37. b. 20. Execution is taken upon a Mannor of the Debtors by vertue of a Statute Merchant The Creditor sowes the Land and before Harvest a Tenant of the said Mannor dyeth the Custody of whose Heir being under age satisfieth the Debt This will not hinder but that the Creditor may also devise the Corn not yet ripe or gathered m Ib. 516. 21. Mony is paid at the day upon a mortgage yet it seems the Creditor although some are of a contrary opinion may devise the Corn which he sowed and which as yet remains ungathered n Id. ib. 22. Tenant in Taile leaseth out his lands for life The Lessee sowes Corn the Heire recovers upon a Formedon in the Descender and dyeth before the Corn is gathered This Corn according to the opinion of some though others contradict it hee may devise by Will o Perk. 520. Fulb. fol. 37. b. 23. Tenant in Fee-simple dyeth and leaveth an only Daughter and a VVife with Child The Daughter enters and sowes the Land but before Harvest the VVife is delivered of a Son to whose use the next Kinsman possesseth himselfe of the Estate in this case the Daughter may devise the Corn. p Perk. 521. Fulb. fol. 38. a But we will put the case thus The Mother before the Sonne is born recovers Dower against the Daughter and hath that part assigned by the Sherifte which the Daughter sowed In this case she may devise the Corn yet it is a Quaere q Perk. ib. 24. Tenant for tearm of yeares commit waste upon which the Lessor recovers the Land In this case the Lessee cannot devise the Corn r Id. 515. Neither can he if another upon a more ancient Title recovers the said Land against the Lessor s Id. ib. 25. Lessee of a House for forty years deviseth the said House to A. without mentioning the Title which he hath or giveth The Question is what he deviseth And it is adjudged that the Testator deviseth that title which himselfe hath Viz. The term of forty yeares t Dyer fol. 307. n. 69. 26. Lessee for years be que at heth his Interest to A. the remainder of the years to B. in case A. dye before the term expired A. is in possession by vertue of the Devise and not long after Aliens his Right and dies before the terme expired The Question is what remedy B hath to recover his Right as to the remainder of the years unexpired And it was adjudged that he is without Remedy u Id. fol. 75. n. 18. f. 140. n. 41. But if the Testator had devised so many years of the Lease to A as A should live and had ordered B. to succeed in the residue In this case A. could not have so alienated the Term but that B. should have succeeded in the Remainder unexpired w Dyer fol. 358. n. 50 51. fo 359. n. 52. 27. Disseisee recovers against the Disseisor The Disseisee may devise the Corne sown but if it shall be severed from the ground the Disseisor may take it away or devise it x Perk. 519. yet he shall pay the Disseisee Damages y 6. Ed. 1. c. 1. 28. A Testator can neither devise Actions if they be not Judgments nor instruments of Actions z Brac. l. 2. c. 26. a. 28. n. 2. l. 5. tr 5. c. 10. n. 3. Fulb. fol. 30 31. but hee may that which is due upon Action Yet is this devise conditionall namely if the Debt be paid or recovered by the Executors a Perk. 527. 29. Our Law respects principally as doth the Civill Law and Reason likewise the will of the Testator b Cook l. 3. Bullers case fo 27. Fulb. fol. 46. Plow 343. if not contrary to Law If therefore a man having both a Sonne and Daughter living deviseth his Lands to his Daughter Although the Sonne be more worthy yet the Daughter shall have the Lands c New terms v. devise If he adds and annexeth a Condition to the devise which is neither impossible in Nature or Law this shall suspend the devise untill it be performed d Brit. c. 36. Perk. 570. Brac l. 2. c. 6. n. 1 2 3. Swinb part 4. Sect. 13. And this is so farre true that sometimes words are extended beyond their naturall intent e See the rest of his tit and sometimes for causes restrained f Fulb. 41. Plâ—w 540. by reason of the conjectured will and meaning of the Testator 30. A. deviseth Lands to B. conditionally that he pay so much money Although by force of words B. hath an Estate for life only yet the Law adjudgeth him to have a Fee-simple g Brac. Test 18. Perk. 555. for otherwise if B. should dye in a short time He might receive more prejudice then profit by the Devise 31. A. deviseth all his Lands and Tenements to B. B. shall not only have all the Lands and Tenements which A. had in possession but the Reversion likewise h Termes v. Devises 32. If Lands be bequeathed to One to have any to hold to him for ever Or to have and to hold for him and his Assigns for ever In both Cases the Devisee hath an Estate in Fee-simple
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
seised either in his life time or at his death namely upon the day on which he died and if the right discend to more Heires successively and without Seisin yet the Heir hath the same Seisin appertaining to him as the Ancestor had in the time of his life or at his death And where there is a participation or meeting of Propriety with the Seisin the Heir hath immediately Ipso facto a Free-hold b Glan and. Bract. ib. 25. E. 3. Stat. 2. and 42. E. 3. c. 10. Flet. l. 6. c. 1. 3. Our Authors do not make in the case of Heirs a like division some distinguish them into nere and more Remote c Glan l. 7. c. 3 and some into neer and more neer remote and more remote d Bract. l. 20. c. 30. n. 1 Brit. c. 118. Flet. l. 6. c. 1. and 2. 4. If one have many Sonns they are all neer Heirs those that were last born and those that were born before them e Bract. ib. and so are Daughters when Sons faile f Glan ib. The next Heir is he who was born first g Bract. ib. unlesse the custome of the place hinder h Glan ib. or that he be a stranger and the younger Brother a Denizen i Dr. and Stu. l. 1. c. 7. and c. 20. 6. An Heir remote is where one hath many Sons and Daughters the Sons are neer heirs and the Daughters remote this holding alwaies for a Rule that the males shall be preferred before the females of the same degree k Bract. l. 2. c. 30. n. 3. 7. If there be many Sons and no Daughters but Grandsons the Sons shall be neere Heires and the Grandsons remote l Id. ib. if there be many Daughters and no Sons they shall be all next Heirs m Glan ib. 8. So may they be tearmed more remote in respect of the Inheritance being more remote as the lineall Nephew or Neices Son his Grand-son his great Grand-son his great great Grand-son c. In the direct line or if there want of that line then in the transverse Ad infinitum n Bract. l. 2. c. 20. 9. It is the ancient custome of England that the eldest Son should succeed as Heir to his Father but where there is no Son but Daughters then all the Daughters shall be Co-heirs o Dr. and. Stu. ib. Glan ib. Flc. l. 6. c. 1. which is also true in Nephews their Children where males are wanting 10. And this was alwaies a Maxime that a Fee-simple could never ascend from a Son â—o a Father or Mother or any other Ancestor â—n a direct line p Coo. l. 3. fo 40. Ratlifes case Dr. and. Stu. ib. Bract. l. 2. c. 29. Lit. l. 1. c. 1. Brit. c. 119. nor can any one in a â—ransverse line succeed so long as there is an Heir to whom it may discend in the direct q Bract. l. 2. c. 31. n. 1. Flet. l. 6. c. 2. 11. That Issue which is born before marriage is by our Law a Bastard nor can it succeed in an Inheritance nor can a Bastard have any Heir save of his own Body r Dr. and Stu. ib. 20. H. 3. c. 4. Perk. 49. 50. 12. Chattells neither personall nor reall come unto the Heir but by the custome of the Kingdome to the Executors or from an Intestate to the Ordinary and from him to the Administrators whom hee shall appoint s Glan l. 7. c. 16. Perk. 48. or if no body will administer then ought the Ordinary to sequester them upon his own perill t 13. E. 1. c. 19. 31. E. 3. c. 1â— 21. H. 8. c. 5. Flet. l. 2. c. 57. Dier fo 277. n. 57. 13. The Lord of the Mannor is in stead of Heir when either through defect or in case of Felony the blood is extinguished u Flet. l. 6. c. 1. yet at this day this is not without distinction Of the legall Succession on the Fathers side TIT. II. IN the transverse or collaterall line the Rule is that those are Heirs who partake of the whole Blood with the party deceased For example A. hath Issue B. a Son and C. a Daughter by one Venter and D. a Son by a second Venter and dies B. succeeds him and dies without Issue in this case C. the Sister shall succeed and not D. a Lit. l. 1. c. 1. Brit. c. 119. n. 7. Flet. l. 6. c. 1. 1. So also A. having a Brother B. and two Sons viz. C. by one Venter and D. by another dieth to whom C. succeeds and dies without Issue in this case B. the uncle who is of whole-blood shall succeed and not D. the Brother b Lit. ib. Coo. l. 3. Rat. case fo 40. but if B. dy without Issue then D. shall succeed being of intire blood with him both by the Grandfathers side and Grandmothers And therefore if B. had not been Brother to A. both by Fathers side and Mothers side it should have been otherwise 2. The collaterall line is double one descending by the Brother to his Children the other ascending by the uncle but none succeed on the ascending line but for default of Heirs on the descending c Bract. l. 2. c. 30. n. 1. Brit. c. 119. 3. He is Heir in the collaterall discending line who is neerest in degree and if this line fail then he who is next to the party deceased in the ascending collaterall line d Bract. ib. Flc. l. 6. c. 2. 4. If there be two in the same degree and both males the elder is to be preferred but if they be male and female the male is Heir as in the direct and right line e Brit ib. n. 1. 2. and 7. 5. Where an Estate comes by the Mothers side there the Son dying without Issue the next of kinn on the Mothers side is Heir and not the Brother of the Father f Id. ib. but where the Son purchaseth an Estate with his own Mony and dyeth without Issue there the next of kinn on the Fathers side shall succeed and not on the Mothers side unlesse for defect of Heirs on the Fathers side g Lit. l. 1. c. 1. Coo. l. 3. Rat. case fo 39. but the Heir on the mothers side shall succeed rather then the Land shall escheat to the Lord. h Plow 444. 6. A. hath two Sons B. and C. B. in his Fathers life time commits Felony and is punished with Death after which A. dies the question is whether the Fee whereof A. died seised shall escheat to the Lord or discend to C. the second Son And here it is to be considered whether B. dyed without Issue for then it discends to C. otherwise it shall escheat i Dier fo 48. n. 15. but if B. had been condemned living his Father and survived him In this case notwithstanding his dying without Issue the estate should have escheated and not discended to C. k
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-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
as it were swallowed up nor can any thing be reassumed by the Wife surviving but her womans apparell and so of imoveables and realls if allened by the Husband in his life time but for those which are not alienated he being dead they shall return to the Wife a Plow 418. 4â—9 but if a Wife being Executrix or Administratrix to a former Husband marries a second and survives him she shall have all those Goods both personall and and reall which she brought unto him as possessed of by reason of that relation and office and which are not alienated by her second husband restored unto her without diminution b Vid. infra tit 11. par 7. The other consequence of Marriage is that lawfull or reasonable Dower under which notion she shall have the third part of all such Lands and Tenements which her Husband was seised of in Fee for her life c Flet. l. 5. c. 22. 27. An. 3. 6 Id. 6. in provis Dyer 140. but in case the husband shall happen to be attainted of treason or felony there the wife shall loose her Dower d 1 Jac. ses 1. c. 11. 12. Of Adoptions TIT. XI a Bract. l. 2â— c. 29. n. 4 5. BRacton in the place before mentioned calls silence and Patience in the case of adulterate Issue adoption which creates such Children being in our power free and legitimate I have also heard of that kind of Adoption amongst us which the Romans used But this seemes rather to be by private will and agreement of the persons adopting and adopted then by any Law for this is at our own election that we may give Lands purchased by our selves or which we have by discent unlesse they be given conditionally or as we tearm it by intail to whomsoever we please whether to one of our Kindred or whether it be to a stranger without having any relation to those Children which we have whence it is apparent that the custome which the Romans had of Adoption was either never received amongst us or else that it is long since as with the French wholy extinct b V. Equinarium Baronem in particula posteriori suorum comment super Instit hoc Tit. How and by what means Paternall Jurisdiction is dissolved TIT. XII WE have spoken before how paternall Jurisdiction is occasioned and constituted now we are to declare how it is dissolved and taken away And we must know that this is done three manner of waies By naturall death by civill death and by dignity or honour For if the Father in whose power the Son is dieth the Son remains at his own disposing although sometime in the custody of a Lord or the care of Freinds or Parents But the Grandfather on the Fathers side being dead the grandchildren are not in their own power but remain under the Jurisdiction of the Father if he survive the Grandfather and do not at all go out of his power as in the case of a Emancipation or Dignity a Bract. l. 1. c. 10. Flet. l. 1. c. 7. 1. So by a civill death as in case the Father be condemned for Felony committed or exiled But if he be banished but for a time he shal retain his Children under his power because whatever is his he shall injoy at his coming back b Id. ibid. 2. Paternall Jurisdiction is dissolved also by Emancipation As if a man discharge his Son from his family with any part of his Inheritance as it was the custome in former times c Id. eod for this kind is a kind of a civill death of the Son as is the entrance into Religion d 4 H. 4. c. 17 3. This power is dissolved also by dignity as in a case the Son be made a Bishop e Bract. ubi supra 4. But as this Bond of paternall power is not so strict with us as it was with the Romans so neither is the releasing of it by Emancipation so usuall For I finde nothing in our Lawes which hinders a son or daughter from disposing of themselves even against their Fathers consent so soon as they shall come to the age of one and twenty years It is most certain that they may then enter Marriage or Contract with any one and be no lesse obliged by a Contract then â—f they were threescore For this age with us is perfect and full maturity f Bract. l. 1. c. 10. n. 2. Lit. l. 2. c. 4. Of Wardships TIT. XIII OF those which are under the power or Jurisdiction of others there are some which are in the custody or protection of Lords some are under the care of Parents and Friends and some are not obliged by either as those which are at full age a Bract. l. 1. c. 10. num 2. 1. The word protection is not so frequent with us as Custody For as we have many Species of Law from the Normans so have we words also now they call him 〈◊〉 Guardian which the Romans tearmed Tutor or which was rather meant and comprehended under their appellations of Tutor and Curator together In which we imitate them in calling them Guardians 2. These Guardians are appointed sometimes by the Fathers will sometimes by the Law and sometimes by the Magistrate Foâ— where the Father hath only an Estate of Money or Chattells to leave to those Children which being under age are in his power he may commit the care and Government 〈◊〉 them together with the Legacies to any 〈◊〉 his Friends b Cook l. 3. case Ratcl f. 37 38. he also hath the like power with a Father who shall infeost an Infant iâ— Lawes for he may commit the Custody 〈◊〉 him according to his pleasure to whom 〈◊〉 pleaseth c Flet. l. 1. c. â— and what is here mentioned of Children born may be understood of Post humi Who they are that by Testament may appear Guardians TIT. XIIII WHosoever hath a Free administration and power of dispensing his Goods may constitute a Guardian by his will provided he be of perfect age and sound memory a Glan l. 7. c. 6. and this also may be performed by a Woman b Brit. c. 35. But if an Infant or one that is not Compos mentis be ordained he cannot be admitted untill the defect be removed c Swinb part 3. Sect. 10. 1. A man may constitute his own Villain or Native Guardian over his Children or anothers with the permission of his Lord but it is worthy consideration whether a Villaine by this Act shall gain his Liberty d Sus de libertinis tit 5. 2. One may also constitute his Apprentice e Brook Testament 8. whosoever may be an Executor may also be a Guardian f Swinb part 3. Sect. 10. Of the lawfull Guardian-ship of Kindred TIT. XV. WEE have spoken allready of Guardians which are appointed by Law and this is by reason of an Estate in Fee which shall discend to Infants
twelve years old may contract Matrimony as well by our Law as by the Civill d Bract. l. 2. c. 37. n. 7. being then adjudged capable of a Husband yet she doth not so soon come to maturity of Judgment but it is sooner notwithstanding out of custody then a man because when she marrieth she doth but alter her condition entring under a new power of a Husband instead of the custody of her Guardian e Glan l. 11. c. 7. Bract. l. 1. c. 6. n. 2. 1. So a Wardship may expire by the naturall or Civill death f V. sus tit 16. of the Guardian which is that which we tearmed the Maxima or Media capitis diminutio or in case the Guardian shall give Lands c. to his Ward or infeoff him For no man can be both a Guardian and Feoffor at one and the same time g Bract. l. 2. c. 5. n. 6. But this is most remarkeable in Guardians which are so by reason of Knights Service that they may either assigne the custody of their Wards to another or bequeath them amongst their other Chattells by common custome to their Executors 2 The Lord looseth the custody of the Body of his Ward when ever he giveth him or her in Matrimony So that if it shall happen the Ward being under age to become single the second time he can by no means recover him into his custody h Lit. l. 2. c. 4 Of Tutors or Over-seers TIT. XXIII MEN though full growne and women though marriageable were amongst the Romans to receive Tutors untill they arrived at twenty five years of age Notwithstanding that they are not so with us beyond the age of one and twenty and that in case where they had not any before either in regard of their Tenure or necessity of the Law However we include Tutors and Over-seers under the name of Guardians although it is apparent those to be more proper in relation to the person these to the Estate a V. tit 14. Sect. 4. in Inst A de ritâ— nuptiarum l. sciendum 20. 1. To some also the Law appoint Tutors and Overseers for by the Statute the King hath the custody of the Lands of naturall Ideots receiving the profis without waste and destruction and finding them necessaries without any regard had of whom the Lands are holden which after the death of the Ideots are to be restored to the right Heires so that they cannot by any means be aliened by the Ideots or the Heires disinherited b 17 Ed. 2. Brit. 167. Stan. Prerog c. 9. Bract. l. 5. trac 5 c. 20. n. 1. Dyer 102. Coâ— l. 4. 126. Fleta affirms c l. 1. c. 11. that anciently Ideots were under the custody of their own Lords But that for the many Exheredations that hapned Their Guardianshipp was conferred by Parliament upon the King yet with this Proviso that the Lords of the Fee and those whom it concerned should loose nothing which was their due Either for Services Rents Releifs of their right of Guardianship till they come to full age according to the condition of their Fee 2. So also where it happens that any one who formerly had both memory and understanding becomes Non compos mentis as some are who have Lucida intervalla The King shall take care that the Lands and Tenements of such shall be kept without waste or destruction And that he and his Family shall live competently and be maintained out of the profits of the same And that the Remainder of their profits shall be reserved for their use So that the said Lands and Tenements shall not be by any means alienated within the said time nor the Revenues appropriated to the Kings use and that if he shall happen to dy in such a condition that then that said remainder of the said profits to be disposed of by the Ordinary for the good of his Soule d 17 E. 2. c. 10. Bract. l. 5. tr 5. c. 9. n. 7. Dyer fol. 25. n. 164. Cook l. 4. 127. 3. Those who are naturally deaf and dumb or labour under any perpetuall disease according to the opinion of some are necessarily to have Guardians e Bract. l. 5. tr 3. c. 6 n. 6. tr 5. c. 18. n. 1. c. 10. n. 1. 4. Infants are not forced to receive Guardians against their will except by reason of their Fee or any of the causes before mentioned or in case of Suits in Law And in the latter case oftentimes there is not only the next of Kinn assigned to assist the Infant in acting but a Guardian likewise to afford him help for his defence f West 1. c. 47. West 2. c. 15. F. B. f. 27. 5. Notwithstanding which no man as Guardian to an Infant shall prosecute for him or receive an Action without warrant but another may as his Kinsman commence an action for him without express warrant g Id. ibid. nor can an Infant disclaim that Guardian who prosecutes an action for him as being next of Kinn h Id. ibid. 6. An Ideot born is not received to prosecute or defend in any action by his Guardian or next of kinn but is required â—lwaies to be present in his proper person i F. N. B. fol. 27. g. Of the Security which is to be given by Guardians TIT. XXIV HE that is constituted sole Tutor or Guardian by the Magistrate or Ordinary â—s bound by our Law to put in security But â—efore he is admitted to his Office he makes â—ath to administer all the affayres of his â—ard to his profit and benefit to give a true â—nd faithfull Inventory of all his Goods â—nd to exhibite it by a certain time accorâ—ing as the Judge shall appoint as also to â—ender an exact and true account of his Office when it shall be required from him â—esides all which he is to finde fit and able â—â—reties joyntly with himself and severally â—y themselves to become bound for his true â—nd faithful administration of his Guardianâ—hip Of the excuses of Guardians T IT XXV OUR Lawes speak nothing of the excuses of Guardians because no one is puâ—… upon this Office against his Will Of Guardians which may fall under Suspition TIT. XXVI OUR Lawes are very carefull in pâ—… of trusting Guardians For he that give Estates to divers whereof some are of agâ— and some Infants may lawfully appoâ—… those which are of age to be Guardians oâ— the Infants but this will not stand in câ—… there be any cause of suspition that they wâ—… contrive the death of the Infants but suspâ—…tion is not admitted if the gift be made tâ—… Father or Mother or their lawfull Issue bâ—… it is otherwise where it is to Brother or Uncle or Nephew because of the right discending a Bract. l. 2. c. 11. 1. They who are Guardians by right oâ—… their Fee so long as they have the custodâ—… of the Land are bound to maintain and reâ—aire all
Houses Parks Warrens Fishâ—ooles Mills and all things whatsoever apâ—ertaining to the said Land out of the proâ—â—ts of the said Land And to â—ender to the Heir when he shall come to age his said â—and free from all Services of the Plough â—t least as free as he found it Nor shall he â—ake any thing of the Land of the Heir as he â—eing under age more then the ordinary cuâ—tomes and reasonable Services And thâ—s â—ithout destruction or waste either of men or goods which if he shall do whether there â—o any prohibition precede or not he shall â—oose his ward and pay Damages And deliâ—er up the Land for his default to some disâ—reet and lawfull men of his Fee or to the â—ext of Kynn b Bract. l. 2. c. 37. n. 3. l. 4. tr 6. c. 19. n. 2. Mag. Char. c. 4. 5. 2. And it is true regularly that no one â—â—all remain in the custody of him who may â—e suspected that he will lay claim to the â—nheritance Whence it followes that if there â—e many Daughters and Heirs in Socage â—one of them shall be wards to the rest but â—hey shall remain in the custody of their next of Kinn who are allyed to them in that line â—o which the Inheritance cannot discend â—ut if they hold by Knights Service they shall be all under the custody of another Capitall Lord and not one alone under the Guard of another Lord by reason of the said suspition untill they come to perfect age c Bract. l. 2. c. 37. n. 6. l. 2. c. 5. n. 8. 3. A Ward may prosecute an Action of waste against his Guardian and may constitute his Attorney in the Action d F. N. B. f. 27. H. The end of the first Book THE Second Book of the Institutes of the Lawes of ENGLAND Of the division of things and the gaining a Property in things TIT. I. WEE have spoke before of the Persons and conditions of men and persons in Law We are therefore now by consequence to treat of things by dividing and distinguishing that they may the better be understood a Bract. l. 1. c. 12. in the begin 1. Now the first division of things is this that some are in Patrimony and Inheritance and some not Those which are of or belonging to our Patrimony and both moveables and immoveables which we have liberty to make use of according to our wills 〈◊〉 necessities Rights and Services are not properly to be reckoned amongst Goods but iâ— regard they are not extreneous they may the rather be accounted such b Bract. ib. n. 2. Flet. l. 3. c. 1. 2. Those which are not appertaining 〈◊〉 our Patrimony are things sacred religioâ—â— and common c Bract. ib. n. 5. 3. By naturall right these things are to be esteemed as common Running water the Air and Sea and the Sea shores as accessory For no one is prohibited comming to the Sea shoares whilst he abstaines from Buildings and Villages because by the Law oâ— Nations the shoares are as common as the Sea And therefore those Buildings which shall be erected either in the Sea or shoare are the Builders by the Law of Nations and in this case the soile follows the propriety oâ— the building although in others it be contrary the building giving place and following the propriety of the Soile d Bract. d. l. 2. c. 12. n. 5. 4. Things which are to be esteemed publick are Rivers and Ports And therefore the right of fiâ—hing used to be free to all as also the use of the banks are publick as the Rivers themselves by the Law of Nations Wherefore it is as free to every one to joyn Shipps and fasten them unto them to tye their cables or ropes to the Trees growing on them to lay any burden upon them as it is to sail or row in the Rivers themselves but the property of them is theirs to whose Fee they adione And for that reason the â—rees which grow thereon are theirs likeâ—ise And this is to be understood of those â—ivers which have a perpetuall and continuâ—l course because those which are but temâ—orary may be private e Bract. l. 2. c. 12. n. 6. but these which â—ere formerly the Peoples And by our Law â—â—ansferd upon the supream Power as repreâ—â—nting the person of all the People and conâ—â—quently of the Common-wealth it self f Plâ—w Cas Reinyer Fogassa â—herefore at this day whosoever disburdens 〈◊〉 unlades his Ship upon the banks of pubâ—â—ck Rivers must pay custome Hoc nomine to â—â—e supream power or its deputed Officers g 3 H. 7. f. 14 nor can any man fish in publick Rivers â—ithout license from the supream power first â—btained h F. B. f 88. h. 5 Where note the difference between â—ublick and common Publick are taken for â—or those things which are the Peoples geâ—erally viz. Which are for the use of man â—nly But those are common which are for â—he use of all creatures i Bract. ib. â—â— 6. Brit. c. 33. Flet. l. 3. c. 1. 6. Those things are said universall and â—elong to the generallity not to particuler Persons which are in Cities Theatres Raâ—es and the like which are common in Cities and are for the use and in the power of the Generality But of things which belong and appertain to the generallity some are tearmed Venalia not from the use but the power under which they are and profit as the lands and Servants of Cities so that they cannot be called any ones particularly k Bract. ib. Brit ib. Flet. ib. Some things there are which may many waies be said not to be the goods of any one as first by the Law of nature Wild Beast Birds Fishes and Men. Next by Judgment as things Sacred religious and holy Theâ—â— by accident as an Inheritance lying before it be entred upon or appropriated and 〈◊〉 Wreck By will as any thing that is left and forsaken and by process of time as Treasure l Bract. ib. n. 10. l. 3. tr 2 c. 3. n. 4 5 6. D Stu. f. 157. Brit. c. 33. Flet. l. 1. c. 43 44 47. l. 3. c. 1. but by our Law Wrecks things that are left and forsaken and Treasure belong to the publick Exchequer m Kitch f. 12 f. 30. f. 40. Stat de Prerog Reg. c. 11. 8. Things sacred are those which are duely set apart by the Clergy for Gods Service As Churches and Gifts duely dedicated for holy uses as Chaliees c. Which are forbidden to be alienated except for the redemption of Captives also Church yards and Chappell 's and although structures happen to be dimolished notwithstanding the ground remaines sacred still Now Sacruâ— differs from Sacrarium Sacrarium signifying only a place where holy things are laid n Bract. ib. n. 9. l. 2. c. 27. n. 2. c. 5. n. 7. Brit. c. 33. and besides all these the Kings High way
not absolutely acquired by Livery of Seisin but as it were now this Seisure In Dominico c. Is twofold Direct or meerly for use Direct which is also tearmed absolute is that which comprehends both Property and use The other consists solely in the benefit and use of a thing i Bract. l. 4. tr 1. c. 27. n. 6. tr 4. c. 4. Fl. l. 1. c. 12. 2. The English have a full Dominion and Power of things corporeal and moveable but not of immoveable if we except the supream power and right of the Crown for the Subjâ—ct hath not an absolute freehold in their Lands and Tenements but a Fee only and that fee doth not comprise so absolute a power appears not only by those Authors who write of Fees k Anto. Con. in Feodorum Comment c. 2. Matthae us â—â—esenbecius in tr de feodis c. 1. but even by Littleton himself when he saies that such a one was seised of such an Estate in his Demesne as of Fee by which words he affirms the highest and fullest title to be exprest And these words as of Fee do abate somewhat of an absolute power and argue a Tenure from a superiour but that these words are sometimes referred to the Kings Demesne l In 27 H. 8 16. is either from the ignorance of speaking and applying or else that distinction is maintained by which some will have a double acceptation of the word Fee viz. One by which a man holds an immoveable thing by any Title to him and his Heires The other by which one holds from another by Rent or Service or both m Flet. l. 5. c. 5. whereas Fee in the second acceptation is never without the Oath of Fealty n Termes of the Law V. Fealty Fulb. Paral. c. Seigniority f. 19. b. which the King never gave to any one as having an absolute Power o Fort. c. 9. Bract. l. 1. c. 8. Brit. in Praemi 3. Fee which is in latine Feodum and by some Feodum comes from the German Fief which signifieth an Inheritance held of another p Hottoman b. disput c. 11. and is by those that write of Fees defined to be an immoveable thing given to another in such a manner that the Property continues in the Power of the Donor but the benefit and use is to the Donee and his Heires Males or Females for ever So long as the Donee and his heires doe faithfully their Services to the Lord q Anto. Continus in Com. sup feod c. 3. so that Fidelity or Fealty is the foundation of Fee and nothing else Yet it often hapneth that it is not bestowed Gratis but for some small consideration of Money in the name of Rent or for Services r Duar. in Com. sup feod c. 12. Smyth Com. l. 3. c. 8. but we understand by Fee all which we hold to us and our Heiâ—â— s Bract. l. 4. tr 3. c. 9. n. 6. Lit. l. 1. c. 1. 4. Fee as it is taken for an Inheritance held of another is held either of the King or a Subiect or that we may use our owâ— Phrase a common person Fees that are held of the King are double either in right of his Crown which we call Tenure in Capite or of some Honour or Mannor appertaining to the Crown But a Subiect although he may have others who hold of him in Fee from whom he may exact Fealty yet himself is either mediately or immediately Feodary to the King for all the Land of this Kingdome which is not held of others by Services is held of the King and belongs to him either as ancient Demesne escheats or perquisites 5. Fee is divided into many Species either from the Effect or from some cause efficient or formall but we shall only discourse breifly here of those which we meet with most frequently in our Books 6. Fee therefore is either Leige or nonleige some Feodists t Duar. ib. will have it to come from the Italian word Liga which signifies a Band or League and that because it ties and obliges the Vasâ—al For Leige is properly where any one swears Fealty to his Lord non-Liege is when with the exception of another The first is due only to the King the later to common persons u 10 R. 2. 11. c. 1. 34. 35. c. 3. Lit. l. 2. c. 1. 7. Again Fee is either Royall or noâ— Royall Royall is the greater for that it hath somewhat of Royalty in it as from whence any one is instituted from the King â—eing absolute without acknowledging a suâ—eriour Of this sort are those which had a â—ignity or Honour conjoyned with the powâ—â— of their Priviledges and are by us stiled â—â—erties or Prerogatives Royall as where â—â—e King grants by his Charter to any Subâ—â—ct the view of a Franck Pledge the Pleas 〈◊〉 Impranding the amendment of the faults 〈◊〉 Assise the adjudging of Robbers as infangâ—â—eife and outâ—ang theife Soc Sac Tol Theam â—o punish by the Gallows or other punishâ—ents which the execution of Judgement â—â—all require Goods of Felons and which â—â—pertain to the Peace and consequently to â—â—e Crown w Bract. l. 2. c. 5. n. 7. c. 24. l. 3. tr 2. c. 35. Wrecks of the Sea Whales â—uâ—geons Free warren Fayre x Bract l. 4. tt 1. c. 46. and those â—â—her things which fall within the Kings â—erogative But of these Fees there are â—â—th us certain degrees since some have a â—â—eater number some a lesser granted unto â—â—em The first the Principallity of Wales claims 〈◊〉 right y Polid. Vir. in ed. 1. f. 343. lin 28. which from the time of Edward â—â—e first did belong to the Kings eldest Son â—nd the second is claimed by the foure Paâ—â—tinates or Counties Palatine Lancaster â—â—rham Chester and Ely z 5 Elix c. 23. 17 Ed. 4. c. 1. 27 H. 8. c. 25. And these have those Fees which we calâ—â—d Honors which the King besides the Jurisâ—â—ctions contingent to Courts Barons hath â—â—anted some though not all these Royallâ—â—es out of his Munificence a 31 H. 8. c. 5. 33. c. 37 38. 37. c. 18. 8. Thirdly Fee is either noble or Ignoble â—â—oble is that which hath any Dignity annext to it or which enobles the Possessoâ— or concludes him to be noble And of the sort with us are those which we cal Mannâ—â— whose Lords have some Jurisdictions thouâ—â— not Royal over those which hold of their 〈◊〉 b Perk. 670. Fulb. par Seig. f. 18. Kitch f. 4 Ignoble is that which depends of such Mannor and is granted to Countrymen 〈◊〉 their Heires for some base Service this 〈◊〉 commonly called Free-hold 9. Fourthly Fee is either new or anâ—â—ent * Homage Auncestrell new is there where any one is first all invested by the cheife Lord of the 〈◊〉 and that either by the Curtesy of the Loâ—â— or for Money paid to the former
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 but of this we have spoken enough before Now Marriage is an Equivocall word since it signifies also the fee it selfe which is given in Matrymony n Brac. l. 2. c. 34. 39. And this shall suffice of services that are noble 21. That service which â—s rurall and ignoble is by us called Socage from the French word Soc which signifieth a Plough or Soccage as Sockage The cause of which Appellation was that these kind of Tenants were by our Predecessors bound to the service of the Soc or Plough and came yearly when the Season required with their Oxen to plough and sow some part of their Lords Land But by processe of time it is now become so that these kinds of works are in most places changed into a certain Rent although the ancient name of the service remains still o Lit. l. 2. c. 5. Inst com c. 31. So that this Tenure which at first was slightly esteemed of is now accounted mud the better for the originall labours are converted into a moderate summe of money only the value of the yearly rent is exacted for Reliefe and it is obliged neither to Guaâ—â— or Marriage p Dyer fol. 362. n. 18. 22. Wherefore Socage which at first was purely a Villain and Rural service is now â—â—vided into free and Villain Free Socage 〈◊〉 that which in lieu of villain services payes 〈◊〉 the Lord a certain annuall rent q Brac. l. 2. c. 35. n. 1. Villâ—â—â— Socage is double that ancient Viz. by which there is a certain service performed by reason of the Fee for this is even still in use r Lit. l. 2. c. 5 Inst corn c. 31. And the other which is pure villainage in which there is obligation to incertain services and undetermined where one cannot tell over night what service will be required next morning Viz. where any one by reason of his fee or person is ingaged to do whatsoever is commanded him s Brac. l. 2. c. 8. n. 3. vet N. B fol. 49. Brac. l. 1. c. 11. n. 1. Bri. c. 66. fo 165 b. But our Moderns do not subject those who hold in Villainage to such uncertain services But call that villainage where a villain Tenant according to the custome of a Mannour or will of the Lord or a Free-man by reason of his fee performs service duties to the Lord of the Fee As to carry Dung out of a City or ouâ— of the Mannor of the Lord to his Lords lands and the like t Lit. l. 2. c. 11. Inst com c. 34. Bro. c. 66. n. 9. 23. That Fee therefore which is held by free Socage enjoyes the best Conditions of any other at this day being freed from the incumbrances of Guard and Marriage u Smith Com. l. 3. c. 5. which to Tenants by Knights service often falls out most heavy But this at present if taken according to the utmost latitude of its signification is understood to include all other kinds of Tenures which are held by a certain Rent free from Guard and Marriage w Brit. c. 66. as those which are held by Franck-almaign x Id. ib. or in ancient Demesne of the King y Id. lb. Lit. c. Socage by fee-farm z Brit. ib. in free Banck a Id. ib. or Burgage b Bro. tenures n. 5. 77. 24. The service of Franck-almaign if at least we may call that a service which payes neither fealty nor any terrene duty to the Donor is where a fee is given to an Abbot or Prior their Covent or to a Dean Chapter to a Mr. of an Hospital or any Body or Person Ecclesiasticall under that capacity or notion That they should pray for the souls of the Donor and his Family living or dead But this at present can be done only by the Supream power for that there is a Statute c Westminst which prohibits any from granting their fee-simple to be held of himselfe Wherefore whosoever from that time the King excepted gave an Estate in Franck-almaign did in vaine adde that word Franck-almaign because it wrought nothing but that the Donees held the same Estate of the Superiour Lord by the same services which the Donor held it whose act could prejudice none but himselfe d Bro. tenures 61. But it seems the Capitall Lord might remit these services and so make it Frank-almaign e Id. ib. 71. 97. The service of ancient Demesne is that which the Tenants of the ancient Demesnâ—â— of the King performed Now ancient Dâ—mesne is all that which was immediately helâ— of the King St. Edward oâ— â—illiam the Conquerour f Term. law Ancient Demes For the later tooke an exact survey of the whole Kingdome so that heâ— might know of what Lord every rodd 〈◊〉 ground within it was holden This survey he caused to be entred into a book which is yet remaining in the publique Exchequer by him stiled â—â—nchester Roll or Doomâ—day g Camd. Br. c. 94. Coo. pref to his 3 d. book Now by ancient Demesne wee understand all those Mannors which were there assigned and ascribed to the King namely because they were the Kings Demesne 〈◊〉 Ancient and the service by which these Tenants hold of the King is Socage h F. N. B. fo 13. D. 14. B. C. But these had a double manner of holding Vâ—â— some by Charter and were called the Kings free Tenants Others by Seales which wee call Copies of Court Rolls Or by the Verge and these were stiled the Kings free Sockmans i Brac. l. 2. c. 8. n. 4. Brit. c. 66. F. N. B. fol. 14. D. Flet. l. 1. c. 8. Neither of these are Tenants at the will of the Lord but by services first due according to the Custome of the Mannoâ— k Kitch fol. 99. Brit. c. 66. Many Writers have treated of the liberties and priviledges which these Tenants had that they might have the greater leisure to attend the Kings businesse l Brit. ib. F. N. B. ib Lit. l. 2. â—â—st com c. 35. Flet. l. 1 c. 8. 26. The service which is performed also by Tenants in Fee-farm is Socage in regard Fee-farm cannot be where Guard and Marriage are reserved to the Lord by Charter m Brit. ib. And the same is to be understood of Tenants in Franck Banck n Brit. ib. Br. l. 4. tr 6. c. 13. n. 2. 27. Burgage is a certain Rent payable by those which inhabite the ancient Burroughs or Cities which spring from them of this Kingdome either to the King or another Lord to whom the King hath granted it And this also is called Socage o Littl. l. 2. c. 10. 28. Having passed so cursorily over these wee are to know that there be many more Fee-services behind which are partly proper to Tenants in Knights service partly to Socage and some common even to both as secta ad curiam secta ad molendinum Herriot Aide to make
Croâ—â— Nor will an Obligation to warranty hinder unlesse it were upon Exchange Or otherwise for the value in Fee or service Oâ—â—â—least unlesse they were granted for the Câ—â—modity and Honour of the King as the Bâ—ronies of Bishops a Flet. l. 1. c. 8. 17. c. But this Right 〈◊〉 now almost wholly worne out either by the munificency of our Kings or by the 〈◊〉 much negligency of our Common-wealth And therefore King James did worthily study a wholsome remedy for so pernicious 〈◊〉 mischeife 1. Nor can a Husband so alienate the Inheritance or Joynture of his Wife but thaâ— it may be recovered by her or her Heirs after his Decease b Glan l. 6. c 3. Brit. c. 34. F. N. B. fol. 193. d. 2. Those who hold of the King in Capitâ— either by Knights service or Socage cannot without punishment alienate their Lands without license c Id. fo 175. A Bro. aliâ—nat tenures 69. 32 H. 8. c. 1. Yet some are of opinion that such alienation is good for the Buyer or Feoffee against the Seller or Feoffor although the King cannot be prejudiced by it d Bro. Testaments 34. 3. An Infant e F. N. B. fo 192. g. Perk. 3. Grants 15. â—9 Mad-man f F. N. B. fo 292. C. Monk g Perk. ib. 3. or Feme-covert h Id. ib. c. 11. Bro. Exec. 175. cannot alienate Nor can a villain those things which himself hath purchased i F. N. B. 202. l. if his Lord be possessed of them Or if they be not possessed in case hee be the Kings villain k Littl. l. 2. c. 12. 4. There is also an old Law lately revived by an Act of K. James which to the subversion of the Church was almost lost through neglect wherein Arch-Bishops and Bishops are prohibited to alienate the Fees of their Churches l 1 Jac. ses 1. c. 3. 5. Lastly those who otherwise may alienate in some cases cannot namely Lands or Tenements to a Body politick whether Ecclesiasticall or Seculer m 7. E. 1. 18. E. 3. c. 3. 15. R. 2. c. 5. F. N. B. fol. 221. Q. without obtaining the Kings license for alienating it in Mortmaine And on the other side Religious Colledges which were founded by the Kings of England are prohibited to alienate their Lands without the Kings License and permission n Westminst 2 c. 41. 6. And on the contrary it sometimes happens that he who is not Owner may alienate for a Creditor by contract may alienate a pawne or mortgage although the thing be not his As if it be agreed in the beginning that it shall be lawfull for the Creditor to sell the Pawne if the money be not paid So also may a Wife Apprentice or any other Servant which a Merchant appoints to sell Commodities in his Office or Shop o F. N. B. fol. 120. H. Bro. tit Contract 37. 40. or any other person who hath command from the Owner p New booke of Entries trespass in Agist 1. Ejectm firm 10. 7. And sometimes it falls out that he who hath a full power to alienate a thing cannot doe it but after a certain forme or manner for the King can neither purchase nor alienate without that special method of Entring which we call Record q Plow 553. By what person wee may make acquisition or gaine to our selves TIT. IX NOw we are to know by what persons wee may purchase or gaine to our selves And know that we may legally by our selves our Wives our Servants Male or Female by Sons or Daughters which are under our protection by Free-men who serve us provided their Deed be necessary and warrantable and approved a Brac. l. 1. c. 9. n. 3. l. 2 c. 11. n. 12 c. 18. n. 6. l. 3. tr 1. c. 2. n. 12. Brit c. 35. 38. Lit. l. 2. c. 11. Dr. Stu. l. 1. c. 8. l. 2. c. 18. And also by those Servants b Flet. l. 3. c. 13. c. 15. l. 4. c. 11. c. 12. who are not under our power as well as by those who are provided they be not under anothers yet so as we take no benefit by them before it be determined whose they are so also by a Common Servant and that as well by anothers as ones owne which we do bona fide possesse and by such a one of whom we have an use 1. And this may be done also by Procurators Tutors Keepers or Guardians who either bargain in our name or are in possession c Brac. l. 2. c. 18. n. 6. Flet. l. 3. c. 4. c. 15. And the same is to be understood of those who are naturally deafe and dumb d Id. ib. 2. The Sons and Daughters also of Villains which are under the power of their Lord without manumission If they make a purchase without the bounds of the villainage have no Heir but their Lord. If so be that he take possession of such Tenements either in the life of his Villain after his Death e Brac. l. 4. â—r 3. c. 13. n. 1. Of ordaining last Wills and Testaments TIT. X. THe third kind of Donations which are by reason of Death are last Wills and Testaments a Brac. l. 2. c. 26. Flet. l. 2. c. 57. Now a Testament is the determination of our Will concerning that which one would have done after his decease b l. 1. de â— Testament And it is double Viz. Proper or Improper That which is properly so called is that last Decree of a man in which hee names his Executor c Brc. Test 20. And hee is in the place of him whom the Romans called Haeres is as the Basis of the Testament d Swin par fo 1. Sect. 3. n 19. representing the state of the Testator That which is improperly called a Testament is any other lasâ— wil whether a Codicel or Donation by occasion of Death or Letter e Valiâ—ius in com sup Instit tit de Testam ord in pri n. 9 10 11. And either of these may be two-fold Viz. either written or Nuncupative f Perk. Testam 476. but Lands cannot be given by a Nuncupative will g 32. H. 8. c. 1. Coo. l. 3. Bakers case fo 31. Dier fol. 53. n. 13. fol. 72. n. 2. fol. 143. n. 54 55. 1. That rigorous way of Solemnity which the Romans used in making of Wills is long since abrogated by the Canon Law which counts two Witnesses before the Parish Priest sufficient to maintain or prove a Will h C. cum esses 10. extra testamentis Nor doth the Custome of England oblige so much as the Decretall for with us it is sufficient to pronounce a will before two Free-men whether Clergy or Lay i Brac. l. 1. c. 16. n. 2. Glan l. 7. c. 6. Dier fo 52. n. 13. Yet our Sages doe for very good reason perswade men
not to be too secure or negligent in the making of Wills k Coo. l 3 case Butler Bak fol 36 2. Nay so irksome doth that Curiosity of the Ancients seem unto us that we esteem every probation of a Will equall which is consonant with that originall simplicity of Jus Genâ—um l Swinb part 4 sect 25 Nor are there two Witnesses necessarily required if there be other circumstances to supply m Brit 28 fo 7 7 a 3. In the admitting or reiecting Witnesses we doe not much differ from the Civill Law For as the Heir there so the Executor with us cannot be a Witnesse yet a woman is not admitted n Swin part 4 Sect. 21. Nor is it so essentially necessary that Witnesses should be interrogated in their giving testimony unlesse they be such as are capable of being removed by other exceptions o Id. part 1. Sect. 10. 4. Although Wills take their force from the Will of the Testator chiefly p Perk. 555. Plo. 412 413. Yet an Executor cannot have his Action against the Debtors of the Testator before hee hath entred the Will and procured an Authority for it from an Ecelesiasticall Judg. q Perk. 482 484 486 Brâ— Execut. 49 19 139. And although some will not grant this to be of ancient custome r Bro. Testam in fine yet the contrary is most evident s Glan l 7 c 7 Brac. l 2 c 26. n 2. Plo. 280. Flet. l 2 c 57. 5. But when an Executor comes to a Judg to publish a Will he shall upon Oath assert That hee doth beleive that Testament which he exhibites to be the true and last Will of the Party deceased and that at a time limited by the Judge unlesse hee be then prepared hee will make and render a true and faithfull Inventory of all and singular the Goods which the Testator had at his Death And that he will pay Debts and Legacies and render a just accompt of the execution of his Executor-ship whensoever hee shall by the Judge be required thereunto t Lym. prov de testat c. stat bone memor and this finished he becomes the same person with the Testator u 9. E. 3. c. 3. Nor doth he only challenge all things which were the Testators but renders himselfe also lyable to his Debts according to the value of the Estate received w 13 E. 1. c. 35. Dier fol. 187. n. 6. 6. If there be many Executors named they may all if they please undertake the Office but if one onely be willing he may doe it x Perk. 486. 7. But if any one dyeth having made a Will and yet not named any Executor oâ— otherwise altogether intestate the proper care belongs to the Ecclesiasticall Judge for that he is liable to all the Debts of the party deceased as farre as the value of the Goods will extend y 13. E. 1. St. 2. c. 17. 21. H. 8. c. 3. Brac. l. 2. c. 26. n. 2. Glan l. 7. c. 6. Dyer f. 232. n. 5. 171. n. 26. F. N. â— fol. 120. D. and is obliged to commit the Administration of the Goods to the Widow or next of Kinne or at least to such a Party as will undertake it and put in good security both to Administer faithfully and to preserve the Ordinary harmelesse z 31. E. 3. c. 11. And here also hee is to make Oath as farre as he knowes or beleives that the Party deceased dyed exhibiting a Will in which there is not any Executor named or whose Executor named refuseth to undertake the Office Or if the case require it that he dyed wholly intestate And further that he will make and exhibite a just and fatihfull Inventory That hee will according to the value of the Goods he shall receive pay the Debts of the party dead And the portions also if there shall be any over-plus assigned by the Judg to the Children of the Party deceased if he have any left or to the residue of his Kindred And lastly that he will render a just account of his Office when the Judge shall require it which being finished he obligeth himselfe with good security to a due Administration of the Goods and is at length made Administrator a Dyer fo 294. n. 7. fo 339. n. 46. when hee receives letters of Administration under the Authentick Seale of the Ordinary 8. But here it is questioned what is to be done in case no one will be Executor or Administrator And in this case the Judg ought to sequester the Goods of the deceased and calling the Creditors together by his command give them satisfaction as the Law prescribes b Perk. 483. Bro. Testa 20. Execut. 90. 117. Fle. l. 2. c. 62. Dyer fol. 232. n. 5. fol. 256. n. 8. fol. 160. n. 42. Plo. fol. 277. 9. But who is competent Judge in this case truly the Bishop of the Diocesse where the Party dyed is Regularly Yet there are others as well Lay as Clergy-men who have the prescription of this priviledge or liberty as we call it or else a grant of it be by ancient Charter c Perk. 486. Dr. Stu. l. 2. c. 28. Swin de test part 6. Sec. 11. I say regularly because it is true in case the Party deceased have not an Estate or Goods in sundry Diocesles d Swin ib. for if so then the probation and publication belongs to the Arch-Bishop of Canterbury or Yorke if it be in the Province of Yorke by Prerogative e Lym. provin Statut. de testa Perk. 489. 10. When we affirm the Bishop of the Diocesse competent Judge we intend the same also of his Officialls whether he be Vicar generall or Commissary f Bro. Testam 12. or Arch-Deacon who by prescription or composition claims this power g Id. ib. 25. Perk. 492 493 Of the Military Testament TIT. XI OUr Law doth not permit any priviledge to that Testamentum Militare which no Pagan Law denyeth to last Wills a Swin part 1. Sect. 19 part 4 Sect. 17 18. For that all those Roman subtilties are dissolved into the ancient Law of Nations Who they are that may make a Will TIT. XII SOme there are who by our Law are absolutely prohibited to make a Will and some who are prohibited as to certain things only 1. An Infant is absolutely forbidden but in this case Infant is taken doubly viz. A male under fourteen and a female under twelve years of age Otherwise under twenty one for both sexes those of the former rank cannot make a will at all a Swin part 2. Sect. 2. Perk. 503. these of the later may of Chattells but not of Lands in Fee b 34. H. 8. c. 5. Dr. Stu. l. 1. c. 12. unless any particuler custome of a particuler place permits it c Perk. 504. 2. An Idiot d 34. H. 8. c. 5. viz. Such a one who
cannot give a reasonable answer to any ordinary and easie question e Swin patt 2. Sect. 4. also a Servant for the same reason by which he is forbid to give whilst living f Sup. title Donation S. 5. can dispose of nothing by his last will whose possession is seised on by his Lord g Perk. 29. Dr. and Stu. l. 2. c. 43. or claimed by word only h Bre. Villein 50 unless in case that he be Executor to another in which case he may constitute another his Eextutor even against the will of his Lord for that the goods which are contingent to this Office are not his to his own use but to anothers i Id. ib. 68. 73. so also a Captive because himself possesseth nothing but is in the possession of another k Brac. l. 2. c. 16. n. 5. which is true likewise in those whom we called Out-lawed l Id. l. 3. tr c. 13. Dr. and Stu. l. 1. c. 6. and l 2. c. 9. 3. Moreover he that is guilty of Treason hath not a power to make a will Because if he be afterwards convict of that Crime he forfeits what ever he possessed at the time of the Treason committed to the King and the Exchequer m 5. E. 6. c 11. Swn par 2. Sect. 12. 1. R. 3. c. 3. nor he that is guilty of Felony but here we must distinguish for if such a one dye before conviction he may by his Will bequeath both his Lands and Chattells or if he be obstinate before the Tribunall and refuse to put himself upon the Triall of God and his Country according to the Custome of the Common-wealth or shall stand mute for in this case if he dy intestate he reservs his Lands intire to his next Heir or if testate he may dispose of them to whom he please and forfeits his Chattells only Moreover if he be Convict he looseth his Lands from the time of the fact committed but his Chattells only from the time of his Conviction so that before Conviction he may give them or alienate them at pleasure n Swin par 2. S. 17. Bro. Forfeitures 5. 28. 65. 89. 103. 113. 117. 4 He that murders himself is by us tearmed Felo de se and hath no other Successor as to his Chattells but the Exchequer o Bract. l. 3. tr 2. c. 31. yet it is much doubted at this day whether he forfeits his Lands or not p Stan. pl. cor l. 1. c. 3. but that his Chattells come into the Exchequer is out of question q See tit Mur. 5. An Heretick by our ancient Law could not make a will r 2. H. 5. c. 7. but that Law is now abrogated s 1. E. 6. c. 12. so that here we have nothing certain but what we receive from the Canon Law 6 A notorious Usurer if he exact above ten pound Per cent per an is liable to all the punishments which the Canon Law inflicts t 13. Eliz. c. 8. and therfore seems incapable of making a Will u Swin par 2. S. 16. 7 Feme Covert is absolutely prohibited to dispose of Lands of Inheritance by her last will w 34. H. 8. c. 5. or of Goods or Chattells without the license of her Husband x Swin par 2. S. 9. Bract. l. 2. c. 26. n 1. Cov. Ognels case 51 unlesse she were an Executrix of a former Husband or of any other person before she entermarried with this Husband or hath any title to any summ of Money as yet unpaid for in these cases she may dispose of the Goods by will which he hath by reason of that Office or by right of Action and constitute either her Husband or any one else her Executor y Bro. Testa 9. 11. 13. and. Execut. 132. 175. 178. Glan l. 7. c. 5. Perk. 502. but if we beleeve Bracton it was an opinion that a VVife might make a will and dispose of her reasonable part which she should have had if she had survived her Husband and especially of such things as were permitted or given her for Ornament which they called her own as Robes and Jewells z l. 2. c. 26. n. 1. F. N. B. fo 122. Flet. l. 2 c. 57. but this Law was either customary in some particuler place or else it is long since vanished 8 Lastly they which enter into Religion cannot make a will for to those Goods which they dispose not of before entrance their next of Kin succeeds as if they had died intestate a Bro. Testam 9. but it is otherwise of Ecclesiastick Seculers whose Goods are by the custâ—â—e of England reputed lay whether they be acquired from the Church or otherwise b Dr. and. Stu. l. 1. c. 39. so also is Corn growing upon glebe Land and not yet gathered c 28. H. 8. c. 11. 9. The King however in a capacity to make a will cannot by his Testament dispose of his Kingdome or the Goods of his Kingdome viz. his Crown or Regalia to another d Fitz. Abridg devise 5. and Execut. 108. Swin p. 2. Sect. 28. 10. A Bishop or Abbot in regard their Baronies were of the Almes and Charity of the King and his Predecessors cannot alienate any part of their Demesnes as to the Remainder without the Assent and confirmation of the King e Glan l. 7. c. 1. 11. So also a Bishop Dean or Master of any Society is prohibited to make a will of any of those Goods which they held in common with the Chapter and Society f Dr. and Stu. l. 2. c. 39. Bract. l. 2. c. 14. Perk. 469. 497. 499. Of the Dis-inheriting of Children TIT. XIII OUr Law remits that positive dis-inheriting of Children to which the Roman Laws obliged their Citizens to the affection of Parents which it presumes nature to have engraven so firmely in the minds of all that it is not possible to be rooted out but by the extream debeauchery of Children VVherefore every one hath a free power of disposing of his goods whether moveables or immoveables And those whether purchased or descending from Ancestors certaine unlesse it be of Fee-Taile for that cannot be disposed of but where the Entaile is cut off by fine and recovery a 4. H. 7. c. 24. 32. H. 8. c. â— Plow 356 c. Coo. l 3. case of Fines 1. Yet the ancient VVriters of our Law doe scarce hold it lawfull for a man to bequeath by his VVill an Inheritance received from his Ancestors to any one but the next Heir under which notion they will lay the burthen of the Fathers debts upon the Heir b Glan l. 6. c. 17. 18. l. 7. c. 1. Brac. l. 2. c. 36. n. 1. â—rit c. 34. But our later times have provided a sufficient remedy for this c 3â— H. â— c. 1. And therefore the Heir is not at this day lyable to the debts of his
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
upon their denyall then of any two honest men who are obliged to take true and faithfull Inventory of all the Goods and Chattels Moveables Immoveables which the Party deceased had at the time of his death and to write all and singular the said Goods justly apprized in 2. Charters or Tables indented The one to be reserved to themselves the other to be delivered to the Ordinary But if the Testator had appointed any of his lands or Tenements to be sold the money or profits thence arising are not to be put into the Inventory c 21. H. 8. c. 5. Swinb part 6. Sect. 9. 2. But the Heirs are obliged to satisfie the Debts of their Ancestors which the Chattels will not suffice to doe d Glan Brac. ubi sup Yet if the whole Estate of the Testator would not suffice to pay Debts then the Kings Prerogative excepted there used in former times to be a defalcation every where e Brac. ib. 3. And even at this instant the Law is that Legacies are not to be paid before debts be satisfied for in such cases the Executor is bound to pay the Creditors out of his own Estate f Dr. Stu. l. 2. c. 11. Bro. Execut. 116. Perk. 488. yet is hee not tyed to pay every one that demands a Debt but those only against whom the Testator had he lived could not have waged his Law g Bro. ib. 79. 87. 127. 163. 172. Dr. Stu l. 2. c. 11. Plo. 181. Dyer fol. 23. n. 144 145 fol. 80. n. 53 54 55. 4. The ancient Law seems to be somewhat changed as to the priviledg of Creditors Yet even now it seems that the Executor may in the first place allow moderat Funeral charges and then satisfie Creditors according as the Law prescribes and of those the King is first by his Prerogative h Mag. Char. c. 18. Next him those to whom the Testator was obliged by Statute-Merchant or Recognisance In the third place those who have Judgments against the Testator i Swinb part 6. Sect. 16. Fourthly penall Obligations k Bro. ib. n. 88. 172. And of these those have priority whose dayes for payment are lapsed l Dyer fo 80. n. 54. and of those if there be many they who sue first But if they commence their suits together Or that dayes of payment be not yet come then it is in the power of the Executor to gratifie whom he pleaseth Next to penall Obligations follow simple Bills m Swinb ubi super as wee call them And lastly Contracts without writing against which the Testator could not wage his Law As Servants Sallaries and Rent of Lands or Houses whereof the Testator was Lessee for years or life and the like n Bro ib. n. 33. 87. 127. 163. But as for made Contracts Executors are not obliged to pay them o Id. ib. Yet according to the opinion of some these have their remedy in an Action upon the case upon a promise of the Testator p Termes v. Execut. 5. If a Creditor be made Executor hee may in the first place satisfie himselfe after which he is bound to pay the other Creditors out of the residue q Plow fol. 185. 6. If after Debts paid there remaines enough to satisfie Legacies every Legatee may of right claime his whole Legacy Otherwise only according to the proportion of the Estate and the quantity of all the Legacies Yet so that the Executor may first deduct charges bonafide expended and desperate Debts But under the notion of lex falcidia we have not any thing nor is there any thing in that nature required from the Office of a Judge But as to those Goods which are not devised they are convertible to the use of the Executor r Perk. 525. 7. Executors of Executors are obliged to the payment of the first Testators Debts unlesse his Goods appeare to be fully administred by their Testator s Dyer fo 174. n. 21 22. 25. Ed. 3. Stat. 5. c. 5. Of those Trustees which the Romanâ— called Fidei Commissarii Haeredes ad sanatusconsultum trebellianum TIT. XXIII THese Inheritances are out of use with us yet those Trusts are something parallell to them by which wee are used to give our Lands to Strangers to the use of us and our Heirs or to private persons to the use and profit of a Body politick But those inventions of Uses being injurious to the Prince and to the Lord of the Mannor a Coo. l. 1. Shudleys case fol. 123. are by Acts of Parliament either wholly taken away or at least for the most part altered b 1. R. 3. c. 1. 4 H. 7. c. 7. 27. H. 8. c. 10. Of things left Per fidei commissum TIT. XXIV OF those things which were by the Romans termed Fidei commissa excepting those which are appointed to the next Title we have no mention in our Law they being left wholly to the Civill Lawes definitions Of Codicills TIT. XXV THe terme Codicillus is seldome used with us wherefore in this we only follow that which we borrow from the Civill and Common Law unlesse it containe either a Fee or a Free-hold In which cases they are to be proved only before an Ecclesiasticall Judge and to receive their Interpretation according to the Lawes of the Land The End of the Second Booke THE Third Book of the Institutes of the Lawes of ENGLAND Of Inheritances which are conveighed from such as dye even Intestate TIT. I. THERE is also another way of gaining Dominion which is by Succession and which happens to all Heirs of such things whereof their Ancestors dyed seised in Fee or whereof they were at any time seised as of Fee by Right of Inheritance without having alienated them And this Discent ought to be to the next Heirs Males or Females in a direct or transverse line Wherefore Right like all heavy things falls downwards direâ—â—ly or transversely nor doth it ever ascend 〈◊〉 same way by which by the death of the â—ncestor it discends yet doth it collaterally â—scend sometimes for want of Heirs to whom 〈◊〉 may discend a Glan l. 7. c. 1. Brac. l. 2. c. 29. n. 1. Dr. and Stu. l. 1. c. 7. Flet. l. 6. c. 1. and c. 2. 1. A Right discends to the Heir whereâ—â—ever born whether in the womb or beyond 〈◊〉 on this side the Sea and that whether within or without the Dominions of the King Provided his Parents be the Kings Leige People and that the Mother went over Sea with her Husbands leave nor can any man create to himself an Heir because God only makes them and because Haeres is not ab Haereditate but Haereditas ab Herede 2. Now Inheritance is a Succession to the whole right which the Ancestor deceased had in Fee upon what cause soever whether by Acquisition or Succession with Seisin or without and if by Seisin then at whatsoever he was
Kitchin tit Escheat f. 110. Of the Tertullian Decree TIT. 3. WEE in the case of Fees follow the Rigour of the twelve Tables which will by no means suffer an ascending from Children to Parents a Bract. l. 2. c. 29. n. 1. wherefore if this seem harsh to any one we shall wish him a Tertuilian or Claudius to perswade our Senate to the contrary Of the Orphitian Decree TIT. IV. CHildren with us doe equally succeed to Inheritances comming from the Fathers or Mothers side and that by the same rules and in the same degrees a Flet. l. 6. c. 9. wherefore we have no need here of an Orphitius Of the Succession of Cozens by the Mothers side TIT. V. THe Romans called those particulerly Cognati which were allied by the female side a Ult. S. 1. â— de gradibus affinitatis but there remaines nothing to be spoken of them the two former Titles being considered b viz. The first and second of this booke where we have shewn That these are never to succeed as Heires but for default of Heires on the Fathers side which is so to be understood that the most remote Cozens on the Fathers side discending in a direct line but not in a collaterall are to be preferred before the neerest on the Mothers side for the great great Grand-child of my â—â—neall Niece or of my Sister shall succeed 〈◊〉 before my Sons or Daughters Cozen-â—erman c Bract. l. 2. c. 30. and 31. 1. This breifly I thought also to insert that 〈◊〉 default of Heirs in a right line discending 〈◊〉 in each collaterall line the Land shall â—scheat to the Lord of the Fee d Glan l. 7. c. 17. Bract. l. 2. c. 29. n. 1. Lit. l. 1. c. 1. F. N. B. 143. Of the degrees of Consanguinity TIT. VI. HAving mentioned degrees it is requisite to take a view of the persons who are â—n possibility of succession and who are preferred before others in succession from the first degree of the same line to the last a Bract. l. 2. c. 31. n. 2. 1. In the right line ascending are these Grand-Father great Grand-Father the great Grand-Fathers Father the great Grand-Fathers Grand-Father the great Grand-Fathers great Grand-Father and so ad infinitum b Id. ib. Flet. l. 6. c. 2. 2. In the right line discending Father and Mother are first which make the common root then Son and Daughter the Nephew and Neice and so Ad infinitum c Brac. and Flet. ib. 3. In the collaterall line ascending Brother or sister of Father or Mother make the second degree and so their Heirs Ad infinitum d Id. ib. 4. In the collaterall line discending are Brother and Sister and their Heires Ad infinitum e Id. ib. Of the Consanguinity of those who are servile TIT. VII THis Title is with the ancient Civilians reckoned as part of the former a Wesenb in the same Title noâ— doth our Law determine any thing in the cases of such as are manumitted contrary to the rules of those who are born free there Marriages being a like lawfull Of the succession of such as are made free TIT. VIII PAtrons are not with us admitted to succeed those who are made free in case they dy without Issue wherefore if any one purchase a Fee after Manumission and dy without Heirs the Lord of the Fee shall claim it by Escheat and not he who gave the party deceased his freedome a F. N. B fol. 143. T. c. the same rules are also for the Chattells of such dying Intestate as for those who were born free Of the assignation of such as are made free TIT. IX THere is no difference with us between those who are manumitted and those who are born free save that they some time were Servants wherefore we have no use of this kinde of Assignation in our Common-weath Of the possession of Goods TIT. X. THE supream power with us gives the possession of a Fee to the Heirs of them who hold the Fee of him by any kinde of service in Capite for he by his Prerogative hath the primer seisin of Lands a Stan. Prerog c. 3. and 13. F. N. B. fo 255. and. 256. c. nor can the Heires receive them but by his hands those who hold of other Lords by Knights service much more Tenant in Socage so soon as they come of age enter upon their Estates by right and in case their Lords hinder them may have their Action having satisfied the value of their marriage b 1. But for those goods which we call Chattells the Ecclesiasticall Judge who is in stead of the Ordinary give possession of them according to the Will or at least confirm the possession being taken to the Executors of the party deceased but if there be no Will then he grants Administration to the widow or next kinsman of the party deceased yet so that the goods shall be distributed according to his Judgement either amongst c 31 Ed. 3. c. 11. them or for pious uses d Linw. provin Of acquiring by Adrogation or Adoption TIT. XI THere is nothing hinders but that the English may adrogate or adopt and be adopted but in this Case the consent of both parties is solely essentiall for our Law determines nothing of this kind of acquisition unlesse that which naturally falls out between party and party in contracts Of him to whom Goods are granted for Liberty TIT. XII AS for those Servants who receive their Freedome from their Lords by Testament the cheif thing is the performance of the Will for it is not materiall whether the Executor will accept the Office For we have shewn before how ungratefull that old solemnity of the Romans in Case of Wills is to us Of Successions which were amongst the Romans by the Sale of Goods according to the Claudian Decree TIT. XIII WE have not this kind of acquisition amongst us yet have we something like unto it for the Fees and all other the Goods of Banckrupts who having consumed their fortunes withdraw themselves That their Creditors may not arrest them wheresoever they be found are divided towards the satisfaction of Creditors by such Honourable persons whom the Statutes in this Case mention a 34 H. 8. c. 4 13 Eliz. c. 7. but above all that most famous Act in King James his time doth most carefully provide in these Cases b 1 Jacob. Ses 1. c. 15. Of Obligations TIT. XIIII WE have before treated of persons and things and are now to speak of Actions a Brac. l. 3. tr 1. c. 1. now an Action comes from precedent Obligations as a Child from a Mother b Id. ib. n. 2. an Obligation is a legall Bond or tie whereby we are necessarily bound to the giving or doing of any thing c id ib. c. 2. n. All civill Obligations may be divided into two kinds Obligations by the Common Law and by
w Lit. ib. 19. All persons may regularly take formes except spirituall who are prohibited unlesse it be for the maintenance of their Families x 21. H. 8. c. 13. 20. Lessee is obliged to pay his Rent to the Lessor which if he shall faile to do the Lessor during the Terme may distrain and this seems true whether it be agreed so or not For whatsoever is brought by the Lessee into the Tenement is annexed as a pledge for the Rent y Dr. Stu. l. 2. c 9. Lit. ib. Brac l. 2. c. 28. n. 1. but after the tearm he cannot z Lit. l. 1. c. 5. Flet. l. 2. c. 59. the payment of Rent admits no satisfaction for the Lessee is not freed by paying before the day a Coo. Bevills case fo 10. a If Tenant of a Fee-farm doth not occupy the Land leased for the space of two years by reason whereof there can be no distresse the Lessor upon his Action may recover it into his own hands b 6 E. 1. c. 4. Westm 2. c. 21. F N B fo 209 G 22. But in most Leases whether for years 〈◊〉 life it is covenanted that in case the â—ent be behinde at a certain day yearly 〈◊〉 half yearly unpaid that the Lessor may â—â—ter reastume the possession to himself or â—â—at the Lease shall forthwith become void â—â—d expire In the first case if the Rent at â—â—e day assigned be not paied being lawfulâ—â— demanded upon the ground by the Lesâ—â—r not only he in his life time but after his â—eath unlesse he distrained in his life time 〈◊〉 the Rent or received it upon tender c Coo. l. 3. Pennants case 〈◊〉 Heir may enter otherwise not d Dr. Stu l. 1. c. 20. Dier fo 51. n. 17. for â—ent ought to be demanded e Perk. 836. nor in this â—â—se doth the day demand for the man but 〈◊〉 the condition be that the Rent shall be â—â—id in any extrinsecall place there needs 〈◊〉 demand according to the opinion of â—â—me f Dier l. 8. n. 23. 24. though others more modern affirm â—â—e contrary g Coo. l. 4. Burroughes case fo 73 23. If Husband and Wife hire land at too â—â—ere a Rent the Husband dying before the â—earm the Wife may leave it and if the Husâ—and survive the wife and dye his Execuâ—â—rs have the same liberty If the Testotors Goods are not sufficient to satisfy the other Creditors the Rent being computed for 〈◊〉 tearm of years h Dr. Stu. l. 2. c. 33. Dier fo 146. n. 70. 24. If a man make a Lease for a year upon Condition that the Rent shall be paid at Michaellmas and in the mean time give a generall release to the Lessee of all Actions â—nd Demands this doth not remit the rent i Lit. l 3. c 8. although it seems something strange 25. A Lessee is not only bound to the payment of Rent k Dier fo 4 n 1. but also to use well the thing leased l Id. fo 324. n 34 so that if either he or a third person commits Waste he is liable unto the Lessor according to the penalty of the Statute m 6 E 1 c 5 Dier fo 90 n 9 and 10 and fo 108 n 31 and fo 198 n 43. and is left to take his remedy against the third person n Dr. Stu l 7 c 31 and l 2 c 4 unlesse he be aâ— Infant o Id l 1 c 17 but it is not waste to fell timber for necessary reapaâ—tions p Id ib 26. In selâ—ing and hiring the Law is the same as to the mutual obligation of persons as in Covenants And therefore if the Lessee undertakes for himself to do or not do anything his Executors or Assignes not being named himself is only bound and they free from any manner of Obligation q Dier fo 65 n 8 but this is sometimes disputable A Lessee covenants with his Lessor that if either he his Executors or Assignes alienate the Lands leased to another that then it shall be lawfull for the Lessor or his Heires to re-enter and to eject the Lessee his Executors or Assigns and not long after the Lessee falls sick and by his last will constitutes his wife his Executrix and dies the wife marryes a second husband who alienates her right and tearm in the said Lands and it was much questioned whether in this case the Lessor may enter in regard this second Husband was neither Executor nor Assignee of the first But in the end it was determined for the Lessor because the second Husband was in this case adjudged Assignee in Law though not in fact r Dier fo 6 n 5 27. If a Lessee oblige himself to leave houses in repaire at the end of his tearm the Lessor cannot bring his action of Covenant untill the Term be ended although the Lessee should pull the houses down yet he may bring an Action of waste s F. n. b. fo 145. K. 28. Lessee is not obliged against a greater force or against tempests or Incursions of enemies unlesse he do expresly oblige himself to it t Dr. Stâ—â— l. 2. c. 4. Dier fo 33. n. 10 11. fo 36. n 35. fo 56. n. 14. 12 H. 8. fo 1. b. v. Lit. l. 1. c. 8. 29. Tenant at will is not bound to repararations as Tenant for years u but if he commits waste he is liable to an Action of Trespasse w id ib. Dier fo 90 n. 9 10. Of Partners or Fellowship TIT. XXVI OUr judicious Lawyers are very frequent in disputing the Rights of those partners or fellows who hold Lands or other things pro indiviso and these they call either Partners Joint-tenants or Tenants in Common a Little l. 3. c. 2 3 4. 1. Partners are either by the Law or by Custom by law b Termes v. Parceners Little ib. two or more women of the same degree who for defect of Heires Males succeed by equall Right in the inheritance of their Ancestors or else the sons of two women to whom Lands not formerly divided by their mothers descend c Little l. 3. c. 1. and 2. by Custome are those who from the Custome of divers Provinces which we call Gavell kind do equally succeed their Ancestors whether they be brothers or for default of them sisters Nâ—ices or Aunts 2. Joint-tenant are either called so properly or improperly e Instit Jur. Com. c. 15. Dier fo 67. n. 18. fo 160. n. 43. properly are those who hold a Fee or Freehold or any reall Chartell by force of the same Title pro indiviso improperly are those which possesse any personall Chattell so and those are thus ioyned either by their own will solely as purchasing the Premises with their own mâ—nies and so possessing them pro indiviso or else by the will and bounty of others as where one gives any thing to two or more iointly f
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
Charter l Id. 134. D. 6. If one lets Lands for a certaine Rent and deviseth the reversion of them to another by Will the Legatee may claime the Rent of the Lessee m Id. 121. N. 7. The Kings Customer having the Kings money in his hands is Debtor to him to whom the King by his Charter hath granted an annuity to be received yearely from such a Customer n Id. ib. F. 8. Lastly we are obliged by the Contracts of our Wives Children and Servants for Wares taken in our names and converted to our uses as if we had made the Contracts our selves o Dr. Stu. l. 2. c. 42. Fulb. par c. contr fol. 3 4. Plow fol. 11. Dyer 234. n. 17. By what Persons an Obligation is acquired unto us TIT. XXIX AN Obligation is acquired unto us by Procurators and by Children which we have under our power and jurisdiction by our selves and children of our own and by Free-men who serve us and that by two causes Viz. by works of their owne and for something which is ours Also by our own proper servants or servants which are common or in which we have an use or others which we do bona fide possesse provided they covenant and bargain in our names a Brac. l. 3. tr 1. c. 2. n. 12. Flet. l. 2. c. 60. By what meanes an Obligation is taken off TIT. XXX AN Obligation is taken off by Payment because every Obligation is removed when that which was due is paid whether he payes it who owes it or another for him And that whether the Debtor know it or not or whether he be willing or not a Brac. ib. â— 1. Flet. ib. which is only true according to some where the writing if there were any be cancelled or an Acquittance be to be shown by the debtor b Dr. Stu. l. 1. t. 12. To the explanation of which assertion some put a difference between a simple and Conditionall Obligation and affirme that the payment of a conditionall Obligation may be proved by Witnesses although the writing remain intire and no Acquittance be shewen And that because the Party being bound to a certaine time under a penalty he cannot without danger expect the delivery of the Writing or Acquittance seeing he is more strictly bound then if the Obligation were simple So if the party pay his Surety is free And so on the contrary c Brac. ib. 1. An Obligation is taken off also by Releases which is an imaginary payment As if it be said have you received all that I owe you upon any cause whatsoever And it be answered or if the Debt be in writing written I have acknowledged to have received all d Perk. 749 750. Dyer 222 n. 22. And this may be done for part of a Debt as well as for the whole As also all other things whatsoever are reduced into a Covenant may be taken off thus and in the same way which Obligations are They may also be renewed and reduced into another Obligation or more into one as if a certain summe of money be promised for many Debts Causes and Obligations e Brac. ib. n. 13. Lit. l. 3. c. 8. There is also a Release in Law as where a man makes his Debtor his Executor for in this case hee for gives the Debt f Bro. Testam 118. which is so farre true that it is whether he take upon him the Execution of the office or not g Plow 184. 2. Also if Lands be charged with an Annuity and the Debtor neglect payment for some yeares and afterwards upon the payment of one yeares Rent obtain an Acquittance from the Creditor the action for the residue is utterly extinguished h Dyer f. 271. n. 26. 3. So also by renewing of Altering as where an Obligation is transferred from one person to another who cannot be bound it is wholly lost As from the person of one who is of age to another who is an Infant And in renewing or altering there may intervene a surety and a penalty as also a Condition That if the Surety doe not well and truely pay the Princiall shall remain i Brac. l. 3. tâ— 1. c. 2. n. 13. 4. In briefe it is to be observed that an Obligation may be dissolved the same way and by the same means by which it is contracted if it arise from a Contract or any such like thing namely by the thing as if the thing be restored by words as if it be to the contrary and in contrary words k Dyer fo 75 n. 25 26 c. By writing As if I write my self to owe money and the Debtor write that he hath received By consent as if they agree mutually to recede from the Contract By delivery as in case the thing be re-delivered By joyning as in case it be done on the contrary l Brac. ib. 5. Bracton also declares that an Obligation may be taken away by sundry exceptions and that many wayes whom any one that pleaseth may read m Id. ib. 6. There is also another way with us which we call waging of Law for if any one challengeth money of me upon a simple contract I may wage my Law against him n Id. l. 5. tr 5. c. 13. n. 3. i. c. I may promise to come into the Court at a day judicially assigned and performe the Law Now to perform the Law is in this case To doe that which the Law requires namely to make Oath that neither the sum required nor any part of it is due And to bring others with me who shall affirme upon Oath likewise that they beleive the Oath I have taken to be true o Brit. c. 28. F. N. B. 122. l. Now this is nothing else but a Judiciall transaction which our Lawes permit us The End of the Third Booke THE Fourth Book of the Institutes of the Lawes of ENGLAND Of Obligations arising from Crimes TIT. 1. THERE are Obligations also which arise from Crimes or from things of the same nature Now Crimes and Trespasses proceeding from words and facts are to be distinguished according to the intention and will where with they are committed for the will and the intention are the Interpreters of the facts And from these Delinquencies proceed greater crimes as Treason Homicide Theft Rapine c. a Brac. l. 3. tr 1. c. 2. n. 14. of which wee shall discourse hereafter Or lesser crimes as Injuries and Trespasses for under these all our Writers comprehend Obligations arising from private crimes 1. The Civill Law punisheth manifest Theft by adjudging restitution to be made four-fold and Theft lesse manifest by rendring two fold But the Lawes of England punish neither with lesse then death provided the thing stollen be to the value of 12. pence b Fortesâ—ue c. 46. Bro. Crown 2. 2. Theft is divided into Larceny and Robbeâ—y Larceny is defined The taking away of Chatâ—els personall in the
absence of the Owner and is either Crand or Petite according to the thing taken Grand is when the Moveable that is stollen exceeds the value of twelve pence Petite is when it is under the value c Westm l. 2. tit Indictments s. 58. Spec. Justic l. 1. c. larc Robbery is when it is taken from the person or in the presence of the Owner d West ib. s. 60. 3. Every Theft with us is a publick crime for Petite Larceny though it be not punishable with death but with imprisonment and stripes is according to some accounted Felony e Bro. Coron though others are of contrary Judgement f Stam. pl. coron l. 1. c. 15. Wherefore we shall referre this â—ather to the Order of publique Judgements 4. Yet wee have thought fit to observe here That it is in his choise who loseth any thing by Theft whether he will prosecute the party civilly or criminally For dissembling the Theft he may suppose the Theife to have found the thing by accident and so detaine it to himselfe and so recover the thing it selfe or its value g Trover in Book of Entr. Brac. l. 5. tr 5. c. 31. n. 2. Flet. l. 1. c. 38. Dyer fol. 50. n. 5. But of criminall prosecutions wee shall speake hereafter Of things taken by force TIT. II. THe word Trespasse hath a very large latitude and comprehends every violation of the Law But our discreet Lawyers call only private crimes Trespasses and make distinctions even amongst these for those who are accompanyed with force are Trespasses more properly a F. N. B. 85. G. Fle. l. 4. c. 4. Yet they call others Trespasses likewise from the species of an unlawfull act though not violent but accidentall or to use their own words suâ—… casu b F. N. B. fo 92. E. Terms v. Action sur le case whence the forme of Action in the first case hath alwayes these words vi armis and in the second contra paâ—… But the Plaintiffe may if hee please dissemble the force as where he brings his Action in the Sheriffs Court who hath no Cognisance de vi armis And though he feigne a lesser Trespasse when really it was greater yet he shall recover damages and this seems the reason why our Writers do so often confound and treat promiscuously of these trespasses which are of a different nature c N. boo Entries tresp 85. Trespas sur le case 92. Now we have thought it congruous enough to refer violent Trespasse to the title of things taken by force and the other to the two following Titles For since the Roman Law makes the subject of these Trespasses which our Law of England divides only into two heads if threefold lest it not seem strange that I refer some Cases which beside the force affixe a contumely also upon the person injured to a third Title 1. Now the Action for Goods taken by force or de vi aâ—mâ—s lies as well for things taken by force which are inanimate as Cats Ploughs c. As things animate as Oxen Sheep and those not only tame but wilde also if they be in our Custody and Jurisdiction As Conies which are in our Warren d F. N. B. 89. K. and Pigeons in our Columbaries e Id. 86 A. So also for our Servants f Id. 88. D. I. and for Apprentices g Id. 91. I. for Wives drawn away with their Husbands Goods h Id. 89. O. for the stealing away of a Sonne or a Daughter who is an Heire and marrying them with any one without our consent i Id. 90. H. for quantity as many k Id. 87. M. for goods of Felons taken out of our Liberty l Id. 91. F. for Weifs and Strays driven or carryed out of our Fees m Id. 91. B. new â—oo Entr. Trespass Bro. Tresp Fulb. Wrongs 2. And this Action is given for the repairing the losse lustained that not only against the party that did it but against those that commanded the doing of it as in every Trespasse upon the case n Dr. Stu. l. 1. c. 9. But not against the Executor of the Trespassor o Id. l. 2. c. 10. nor his Heirs p Brac. l. 3. tr 1. c. 4. n. 4. because it is personall and penall Of the Aquilian Law TIT. III. TRespasse upon the case is that which either brings damage to the person injured or disgrace and contumely with the damage and this the Civilians comprehend under the Title of the Aquilian Law be cause Cains Aquilius was the Author being Tribune of the People of this popular Law by which these trespasses were punished though they referr this to the Title of injuries 1. Now he who damnifies the Estate of condition of another commits a Trespasse upon the case As for example where a Sheriff by a Writ directed to him takes a Debtor and afterwards lets him escape a F. n. b. fo 93. A. C. or upon his return makes false Information to the Court that the party hath no Lands or any thing else in his Bailiwick whereby he may be distrained and so becomes the occasion of the taking of his Body b Id. ib B. so also he who fixeth stakes in any water whereby anothers Ship or Vessell laden with Corne or other Merchandise is overturned c Id. 92 F moreover an Atturney or Counsellor at Law who through ignorance or deceit Iooseth his Clients cause d Bo Entr. Action Sur le case in Atturney a Barber who shaves anothers Beard ill or with a foule Raisor e Id in Barber a Physition or Chirurgeon who either ignorantly or maliciously handles a sick or wounded person f Id. in Phisi a Goaler who useth a Prisoner more hardly then he ought g F. N. B. 93. he who distraines the Cattell of anothers Plough where he may make other reasonable distress h Dier fo 312. n. 86. or he who having justly taken anothers Cattell by distresse doth not carry them to an open Pound but to a place unknown the Rectory of a Church a Fortresse or into another County that they cannot be redeemed or replevin'd by their Owners i F. N. B. in the Writ of Repleg averâ— fo 68. and the Writ Vetito nannio 73. he who interverts the Course of a River which should drive a Mill k Dier 248. n. 80. and fo 320. n. 38. a Lessee or free-holder who commits waste l Id. fo 36. n. 38. and fo 256. n. 10. But this is speciall in regard that by an Act of Parliament he forfeits the thing wasted m 6 E. 1. c. 5. but in regard the Species which might be referred hither are infinite I shall rather remit you to those who are more large as treating expresly upon this subiect then trouble you with too great a glut and multitude of examples n Boo. Entr. 10. Action Sur
i Id. 156. some prohibite and keep within compasse those Judges who stretch their Jurisdictions too farr k Id. 39. some remove causes from one place to another l Id. 70. 69. Lastly some informe and commence processe m Regist Origin and others prosecute and bring to an end those which are begun n Reg. Judiciale now those which begin processe are called originall Writs and those which promote and end processe begun iudiciall o Regist Brev. 1. All Actions flow either from the common Law or from Statutes p Bro. Action populer Sur le Statut. but from which soever they flow they are all either against the person or the Estate or both q Brac. l. 2. c. 3. n. 234. 2. Personall Actions are those which arise against any one from a Contract reall or imputed or from a crime reall and proper or imputed Now those Writs which are Issued forth in either case upon Contracts are for the most part these A Writ of Covenant r F. N. B. fo 145. of Account s Id. 116. of Debt t Id. 119. of Detinue u Id. 138. of Trespasse w Id. 92. upon the case in which the assumption is contained x Bro. Acton Sur le case 24. 3. Those which are issued out in either case as touching Crimes are those of Trespasse y F. N. B. 85. Deceit z Id. 95. breaking of a Park a Id. 100. or Inclosure Rescous b Id. 105. Attaint c Id. 105. Conspiracy d Id. 114. Champerty e Id. 171. 4. Reall Actions are those who are maintainable against any one not obliged to us by any Right because our estate corporall or incorporall which is immoveable is possest by him or as it were in his possession which he may either restore or name the party in whose name he possesseth it as if one demands of any one a thing certain viz. a Fee Lands an Advowson pretending ones self owner of it and sues not for the value or so much in the same kind but the same specificall thing and for this that the demandant supposeth the thing his and brings his Action against the Tenant who denies it the Action or Plea shall be against the thing it self f Brac. l. 3. tr 1. c. 3. n. 3. 5. If the thing sued for be a moveabe as an Ox an Asse a Garment or something consisting either in weight or measure although the Action or Plea at first seems to be as well against the thing as the person because a certain thing is sued for and for that he who possesseth it is bound to restitution yet in truth the Action is against the person because the party sued is not precisely bound to restore the specificall thing but under a disiunction either the thing or its value and he is freed by paying the value onely whether the thing be to be had or not and therefore if any one claim a thing moveable taken away upon any occasion or lent he ought in his Action to ascertain a value otherwise it is of no force nor signifieth any thing g Brac. l. 3. tr 1. c. 4. n. 4. Fleta l. 2. c. 60. 6. Now of Actions civill and for a particular thing as the claim of a particular thing some are confessory and some negative confessory as where one affirms a corporall or incorporall thing to be his as a Fee also where he affirms himself to have a Right of going through his neighbours Fee or of drawing water even whether his neighbour will or not and it is therefore stiled an Action for a particular thing because he requires his particular incorporall thing viz. his Right of a way through a Fee and confessory because it is by words of affirmation But an Action negative is that which the Lord or owner of a Fee brings against one who is accustomed to have a way through his Fee denying that he hath any such Right and this Action is said to be for a particular thing Because by it the Lord of the Fee doth by it claim his Liberty and these kind of Actions are not for the Dominion or property of a thing but onely touching the Right of Estates h Brac. ib. n. 7. Flet. l. 5. c. 37. 38 39 40. 7. We have also something paralel to that which was anciently called Actio Rescissorla for if any one be dispossest of his Estate being in durance and the Lands descend to the Heir of the Disseisor the Disseisee hath liberty to recover his possession by his own proper Act or as we term it to re-enter and if Judgement be given against him he may reverse it afterwards by a Writ of Error because his absence was not through contempt but by reason of Durance and imprisonment and therefore it seems contrary to reason that he should be prejudiced by any such Record and there is the same law for those who are in the Kings service or who are beyond the Seas in any businesse which concerns the Common wealth and are in the mean time disscised being unable to make their continuall claim nay there are some who affirm that he who is beyond Seas about i Litt. l. 3 c. continuall claim his own businesse if he be disseised may upon his return upon his own authority reenter upon the Heir of the Disseisor without bringing his Assise k id ibid. 8. And there is somthing likewise which answers to that same Actio Pauliana and which is afforded by a particular act of Parliament l 13 Eliz. c. 5. which renders all manner of alienations of Lands and Goods made by the Debtor to defraud the Creditor void and of none effect and moreover inflicts a penalty upon all those who are guilty of it and who defend it as lawfull 9. Nor do we want that which equalls the ancient Actio Serviana for the Lestor may of proper Right distrain upon goods which are brought upon his Fee and detain them untill his Rent be satisfied because we also do tacitely esteem these in the nature of Gages or Pledges although this be not without Distinction m Bro. Distresse 13. 57. 99. To this also may be added that Actio hypâ—thecaria quasi Serviana for if any one receive monies borrowed of another under a Pledge or Pawn and cannot afterwards receive his pawn upon tender of the monies the Creditor refusing to redeliver it the Debtor may in this Case have his Action n F. n. b. 86. G. and he is said to sue upon an Action quasi Serviana who being seised of Lands as by way Mortgage is disseised or elected out of them 10. Now writs which are proper to reall Actions are either to recover a property or a possession o Flet. l. 6. c. 1. those which appertain to a property are writs of Right which are of divers kinds p F. n. b. 1. 6. 11.
bring a Personall Action which concerned neither Title of Lands free Tenement Inheritance or Battery in any of the Courts at Westminster in which Action the Judges of the Court should value both the Debt and Damages to be under forty Shillings that the Costs of such Suit should not be assigned greater then the principall value And that whereas the Sheriffs and their Deputies were wont formerly to cite and Summon the good people of England without any warrant or Writ to the said Courts or to imprison their bodies or distrain their Goods that from thenceforth they should not dare to attempt the like and he that made Default in this or caused another to do so should be committed to Prison without Bail or Mainprise untill he had besides Damages and Costs of Suit paid ten pounds to the party iniured and twenty pounds to the Exchequer f 43. Eliz. c. 6 4. Nor shall a man escape unpunished for moving or beginning every Suit rashly for in some Cases if the Plaintiff upon the Defendants appearance desist he shall pay Costs g 23 H. 8. c. 15. as Informers upon penall Statutes if after the Suit begun they delay discontinue or be non-suit in the same or have the Triall or matter passe against them by Verdict or Judgement of Law they shall pay unto the Defendant his Dammages and Costs which shall be assigned him by the Court. h 18. Eliz. c. 5. 5. So also they who indict or impeach any one under the pretence of any crime whereby their lives credits or Estates are in Jeopardy are liable to an Action of conspiracy i 33 E. 1. Sta. 3. 3 H. 7. c. 1. which presumes malice whereby they shall be compelled to pay the full Damages sustained by such accusation or eviction k F. n. b f. 115. â— and in some Cases they shall pay treble Damages l 8 H. 6. c. 10. 6. And I have heard from some practisers that if any one in forma pauperis procure a Liberty of bringing his Action in the Upper Bench Common Pleas or the Chancery according to the Statute m 11. H. 7. c. 12. and betray rather a Spirit of Contention in the end of the Suit then a iust cause that such person shall have corporall punishment n 23 H. 8. c. 15. 7. But our Ancestors were wont to deterr men from their light and rash Suits by an Oath for it was prohibited every one to bring any Action of Battery before the Kings Justices unlesse it were for wounds or maims without they first made Oath that his Plaint was true or an Action of Trespass for goods taken without making Oath that the Goods taken were worth forty shillings at the least o 6 E. 1. c. 8. 8. There are many Statutes made by the no lesse prudence then equity of former Parliaments p 32 H. 8. c. 30. 18 Eliz. c. 14. 27 Eliz c. 5 6. Plow 83. 522 523. for the speedy deciding of Suits which that they might be preferred before private ends and profit were to be wished by all good men in regard rhey do principally recommend the truth of causes to the Justistices reiecting all malitious calumnies of those who are subtle and litigious and amongst these that is worthy to be numbred by which the crafts and knavery of under-Sheriffs and their Officers and Bailiffes are restrained q 27 Eliz. c. 12 Of the Office and Duty of a Judge TIT. XVII OUr Kings were wont formertly at their Inauguration or Coronation to take an Oath to this Effect viz. that they would keep inviolate all the Rights and Liberties of Holy Church which were granted unto her by the Christian Kings of England That they would keep without impairing or diminution all and singular the Land and Dignities appertaining to the Crown and indeavour with all their power the restitution of such as were impaired or lost if any were that they would cherish the quiet and Peace of the Church Clergy and people that they would keep and observe the ancient Lawes and Customes of the Kingdome which were received and established by the consent of the whole people and abrogate all such Customes and Lawes which were ill and naught And lastly that they would to the utmost of their power assure Peace to the People of their Kingdome and procure it from others a Brac. l. 3. tr 1. c. 9. n. 2. F. n. b 232. A. Spec. Justic l. 1. c. 1. Flet. l. 1. c. 7. 1. The Oath of the Justices of the Superiour Courts and of the Barons of the Eychequer are to this effect viz. that they will well and truly serve the King and his People and not consent to any thing which may tend to their preiudice or Exheredation that they will not take Fee nor Robe of any man but the King that they will not take any gift of any one whose cause is depending before them except meat and drink and that of a small value nor any thing for any cause after it is tryed b Brac. ib. c. 8 n. 2 3. n. 9 10. that they will not give counsell to any one in any case which concerns the King under the pain of being at the Kings Will as to Body and Goods that they will not be deterred by the Kings Letters from doing and administring Iustice to any one b Brac. ib. c. 8 n. 2 3. n. 9 10. 2. This we have even from the very beginning c 2 E. 3. c. 8. 20 E. 3. c. 1. Dier 138. n. 27 unto this present that where any one is sued in case of property of a Fee Simple for Lands or Tenements it is at his choice whether he will be tried by his countrey or by Battell if he prefers to be tried by his countrey the businesse is determined by a Grand Assise but if by Battell then a day is appointed d Glan l. 2. c. 6. 7. Brit. c. 42. upon which the Case is committed to two combatants whom we call Champions according to the Law of single Duell between whom it is decided by the event e Dierf 301. n. 40. 41. 42. 3. The ancient custome of the Nation requires also that all Trialls of private Actions except a few as to matter of Fact f Plowd 92. 114. should be determined by a Iury of twelve free and lawfull men of the same vicinage who are neither allyed to either Party g Dr. Stu. l. 1. c. 7. or hindred by any iust exception h Dier 144. n. 59. 176. n. 27. 177. n. 33 316 n. 3. Bro. Tit. Challenge 4. Those who are indicted for any capitall crime or Felony before a Iudge unlesse any question arise touching matter of Law are not allowed Councell Yet the Laws require That the Judge himselfe should instruct the party in all things appertaining to the form of his defence lest an ignorant Innocency endanger his life i Fortesc c. 27. Dr.
Stu. l. 2. c. 84. Stamf. pleas l. 2. c. 63. But in case of an Appeale hee may make use of others for his defence And if he be so poor that through want he is not able to procure Counsell the Judg ought upon his request to assigne him a Patron to plead for him k Dr. Stu. ib. 5. As for the summe in which any one supposeth himselfe to be prejudiced by reason of a Trespasse committed against him the Justices doe proportion it either by the verdict of a Jury or by vertue of their own Office l Brac. l. 3. tr 1. c. 1. For they doe after that the costs are taxed by a Jury augment them upon cause shown 6. If the Jurors being sworn upon their going together cannot agree upon their verdict so that there be any danger that they may perish through hunger because the Common Law prohibits them from eating and drinking without the Judges leave untill they are agreed together upon their verdict when any such danger appears The Judge may permit them to eate and drink and remit them againe to consult And if at length they can by no means agree he may having amerced them discharge them and appoint others in their stead m Dr. Stu. l 2. c. 52. 7. We have before mentioned and declared that that Action which was called Noxâ—lis Actio is wholly unknown to us n Tit. 8. of this Book Since therefore there is no Judge to appeal to in this case wee need not trouble ourselves with Observation concerning it 8. If in a reall Action Judgement shalâ—… passe for the Tenant the Demandant shalâ—… only be adjudged to pay costs of Suit But iâ—… it passe for the Demandant the Judge shalâ—… condemn him to pay Damages and costs oâ—… Suit and shall command the Sheriffe o Scire facias F. n. b. in the Index throughout and in the Register or in case it touch any Benefice then the Ordinary p F. N. B. 38. to put the Demandant into possession which the Sheriffe is bound to doe without delay And this is true whether the Demandant sue as Heire or otherwise and whether the Tenant were an Intruder or not For if he be a Disseisor or forceable Intruder he is worthy rather of punishment then favour but if he be not then the Jury lay little or no Damages upon him q Brac. l. 3. tr 1. c. 3. 5. 9. An Action is chiefly in case of Moveables but as concerning Moveables wee never sue for them in Specie as I said before but only propose the value And having proved the thing in Action to be Ours and the value so much wee recover either the thing it selfe or the value I doe not finde that the Defendant can be compelled by our Law to restore the thing in Action Yet in the case of Lands or an incorporeall Right the Demandant or Tenant may require the view of the thing if it be out of necessity and not to protract In which case the Judg commands the Sheriffe That at a day assiigned he cause a view to be taken by such Viewers or Surveyers as may certifie the Court at another day touching the quantity 10. That which the Romans called Judicium familiae eriscundae wee term Partition of an Inheritance But whereas they divided as wel Moveables as Immovables among Heirs we only make partition of Immoveables amongst those whom either the Common Law or the Custome of any place intitles to an equall part of an Inheritance r Lit. l. 3. c. 1 2. Now this partition is made either by the consent of the Heirs or by the Authority of the Magistrate That which is by consent may either be so made that the Estate being divided into equall parts the Eldest shall have the first choise and so the rest in their order or else by Lots s Id. ib. Terms of the Law v. Partition The forme of that which is by the authority of the Magistrate we find described at large by Bracton and Littleton t Brac. l. 2. c. 33 34. Lit. ib. In which this is lastly to be observed That whatsoever is assigned to one in one place over and above their due shall be recompenced to the other in another place u Brac. c. 33. n. 8. 11. Those who hold joyntly whether they be Joynt-tenants or Tenants in Common cannot be forced by the common Law to make Partition yet this is changed by an Act of Parliament w 31. H. 8. c. 1 32 H. 8. c. 32. wherefore at this day if Partition be made amongst these the same rules are to be observed which we mentioned in case of Co-heirs x See this title Sect. 9. 12. Where either or any of those whose Fees or Villiages border upon each other desire to make distinctions of their bounds they may have a Writ directed to the Sheriffe that hee shall determine and bound their limits equally By the assistance of a Jury of 12. men the most discreet of the Vicinage sworn for this purpose y F. n. b. fol. 134. which Partition he shall certifie under his own Seal the Seales of foure Knights who were present at the businesse at a certain day assigned And if either be unwilling to have their bounds limited as being the party who happily doth commit the Injury the other may obtain a Writ directed to the Sheriffe to require him to set equall bounds and limits z Terms of the law v. perambulation F. n. b. fol. 128. 13. Now whatsoever shall be adjudged by the Supream power or the Justices upon such certificate to each that shall immediately become theirs to whom it is adjudged a Lit. l. 3. c. 1 Of publique Judgements TIT. XVIII AS for those punishments which are inflicted upon Malefactors some extend to the losse of life some of a Member others of City Burrough or Province some to perpetuall banishment or for a time some to the restraining the body as by perpetual imprisonment or imprisonment for a time some to beating whipping or the Pillory Some also to the losse of Dignity and Order or to a privation or prohibition of any thing a Brac. l. 3. tr 1. c. 6. Flet. l. 1. c. 16. 1. Amongst these that is reckoned cheif in regard of its Heinousnesse b Coo. l. 4. Beverleys case 124. which wee call Treason Now Treason c Flet. l. 1. c. 21. is either High or Petite High Treason is that which the Romans called Laesa majestas and this before the alteration of our Government was dierse wayes committed as by killing or imagining the Death of the King the Queen or their Sonne and Heir apparant By ravishing d Spec. Just l. 1. c. del peche de majeste the Wife or eldest Daughter of the King if she were unmarried or the wife of the Kings Sonne and Heir apparant By taking up Armes against the King within his Kingdome e Dyer
others viz. not only those who killed their Kinsmen but even those also who did by any capitall deceit plot any thing against their Estates Members or Honours As also those Servants who committed any such crime against their Mastes Or who lay with their Masters Wives Daughters or Concubines or counterfeited their Seals k Flet. l. 1. c. 37. Spec. Just l. 2. Now the punishment due to this crime is to be drawn from the Prison to the place of Execution and there to be hanged by the neck untill they be dead l Cromp. Iust fol. 18. Flet. l. 1. c. 37. but a woman is punished for this in the case of High Treason Their goods also are forfeited to the Exchequer and their Lands to the Lord of the Mannor yet so as the King was wont to have a yeare and a day and waste m Stanf. l. 1. 6. 2. 11. The residue of Capitall Crimes are comprehended under that one name of Felony Although Felony in a more large signification includes Treason n Lamb. l. 2. c. 7. Plow 333. and is sometimes more strictly extended to Murder o Perk. 349. 22 H. 8. c. 14. 12. Of Felonies there are some which are against the Common-wealth and some which are against private persons principally though by consequence they also are against the Common-wealth Oâ— the first sort are raising of Devils Witch-craft Conjuring by which any one is killed Or any other whatsoever after the first conviction by meanes whereof the body of any party lies sick and languishing and these formerly went under the name of Felony p 5 Eliz. c. 16. But at this day those who use Invocations Conjurations or raising of Devils or who take counsell of Evill Spirits make any bargain with them or deale with them by way of Commerce Or who do any way command cherish or reward them for any end or purpose Those who dig up any dead body out of a Grave or Dormitory or who draws off the skinne or the bone of any dead body to use them in Inchantments Lastly those who practice any manner of inchantment charm or sorcery whereby any person shall be killed destroyed wasted consumed pined or lamed That such Offenders their Aiders Abettors and Counsellors shall suffer pains of Death as Felons without benefit of Clergy And it is further provided for the utter extirpation of such wicked Blasphemy that whosoever shall take upon them by Witchcraft Inchantment Charm or Sorcery to tell or declare in what place any Treasure of Gold or Silver may be found or lies hid Or to provoke any person to unlawfull love Or to destroy and waste any ones Cattell or Goods or to destroy or hurt any ones person although the same be not effected or done every such offender shall suffer a year Imprisonment without Baile or Mainprise and once in every quarter of the said year shall in some market town stand openly upon the Pillory for the space of six houres and there openly confesse their errour But if being once convicted they do again commit the offence they shall suffer death without benefit of Clergy q 1. Jam. c. 12 13. And hither we may aptly refer that Sodomiticall sin with bruit beasts r 25. H. 8. c. 16 the entertaining of Jesuits Preists brought up in the Seminaries beyond the Sea s 27. Eliz. c. 2. the sefusing of Abjuration by Papists and their return into England after having abjured t 35. Eliz. c. 1. 2. the assembling of Rebells u 1. Mar. c. 12. which Statute is now expired the art of multiplying Gold or Silver w 5. H. 4. c. 4. the procuring or causing of Congregations of Masons to be assembled x 3 H. 6. c. 1. the departure of Souldiers Mariners ot Gunners from their Captaines y 18. H. 6. c. 19. 2. and. 3. E. 6. c. 2. 4. 5. the exportation of Horses into Scotland z 23. H 8. c. 16. 1. Eliz. c. 7. the conveying of sheep beyond the Sea the second time a 8. Eliz. c. 3. the return of vagabonds into England having been banished b 39. Eliz. c. 4. the cheatings and robbings of those Vagabonds which call themselves Egyptians c 1. 2 Phil. and Mar. c. 4. 5. Eliz. c. 20. the idle wandring of Souldiers and Mariners d Ibid. the counterfeiting or deceitfull using of Letters Testimonialls e Ib. 39. Eliz. c. 4. 17 the riding in Armes to commit a Felony f 25. Ed. 3. c. 2. the breaking or cutting of the bankes in Marshland g 2. and 3. Phil. and Mar. c. 19. 14. And like unto these seem those Felonies which spring from breaking of Prisons as where one is imprisoned for Felony or for suspition of Felony and breaks â—orth as also where a Gaoler lets such a person forth freely which we call a voluntary escape Or lastly the assistance and help in a third person which we call Rescous h Lamb. l. 2. c. 7. p. 224. 226. Dier fo 90. n. 60. fo 165. n. 60. the making bringing into the Kingdome or selling that kinde of Mony which our Ancestors called Galley Halfe-pence Suâ—kins Dotkins and Blanks i 3. H. 5. c. 1. the Imbecilling of a Record k 8. H. 6. c. 12. the violent oppressing the Subject by the Kings Purveiours or others l 4. E. 3. c. 3. 5. E. 3. c. 2 25. 4. 3. c. 15. 36. E. 3. c. 2. and 4. 5. R. 2. c. 8 the compelling of any Prisoner by the Goaler by duress of Imprisonment and pain to become an Appellor against his will m 14. E. 3. c. 10. and thus much of the first sort of Felonies 15. Felonies which do primarily and chiefly concern private persons are such as reflect to the hurt and prejudice of the Body only or the Body and Goods or the Goods only n Lamb. l. 2. c. 7. fo 218. Those which hurt the Body are such which either take away life or bring some other enormous injury upon it though not mortall those which take away life are comprehended under the generall name of Homicide o Flet. l. 1. c. 23. but this hath diverse appellations and causes from the diverse Intents of the parties offending For that which is committed through malice prepensed is called murder p Plow 474. Glan l. 11. c. 3. â—rac l. 3. tr 2. c. 4 n. 2. Dier 〈◊〉 69. n. 28. â—9 fo 186. n. 3 and is punished with death And we are to take notice here of the ancient custome which our Ancestors used that he who committed Murder was hanged up alive by his whole Body upon a Gibber and was not upon any condition to be let down untill he died through Hunger but I read nothing of this and if there were any such custome it is long time changed For at this day they as other Felons are strangled with a Halter and in this only they differ from other
Felons that their Bodyes are hanged up on high in some publick Roade neer the place where the fact was committed as an obiect to those which passe by and are not to be removed until they be consumed Now there are others who shew more at large how and by what wayes murder may be committed q Stan. Pleas Crow l. 1. c. 10. Lamb. l. 2. c. 7. fo 230. 16. And it is murder also where any one kills himselfe For such a person is called Felo de se In which case Christian Buriall is forbidden and all the parties Go ds and Chattells are forfeited to the supream power to be disposed of to pious uses r Brac. l. 3. tr 1 c. 31. Pâ—ow fo 253. yet some there are who distinguish whether the party laid violent hands upon himself through fear of Judgment or being weary of his life or through the violence of some disease For in the first case as other Felons he looseth both his Land and Chattels in the second his Chattells only and in the third he forfeiteth nothing s Flet. l. 1. c. 36 17. That which is committed through sudden passion Anger is called simple t Glan l. 14. c. 3. Homicide or man-slaughter and it is punishable with death also yet such is the commiseration of humane weaknesse with us or the pious instigation to learning that he who is convict of this Crime the first time if he can read perfectly and distinctly as a Clarke ought to do is freed from death and his lands and goods being forfeited is only burnt in the hand by which means he may be known if he commit the like crime again and committing it the second time he is to dy without mercy u 18. Eliz â— 7 but so great hath been the bloody wickednesse of these times that this Law hath been somewhat more exasperated For now by an Act of Parliament in K. James his time it is decreed that he who stabs another who hath never a Weapon drawn or who doth not provoke him by stricking first shall loose the benefit of Clergy although there do no precedent malice appear if the party dy within six Months unlesse it be done in his own defence or for the necessary conservation of the publick place w 1. Ja. c. 8. now this favour of Clergy is not only granted to these but even to all other Felons unlesse where it is denied by some particuler Act of Parliament x 23. H. 8. c. 1. 25. H. 8. c 3 26 H. 8. c. 12. the other kindes of Homicide are not accounted Felony y Lamb. l. 2. c. 7. fo 248. 18. For every Homicide which is without malice is either necessary or casuall z West Simbol part 2. fo 48 49 that which is necessary is likewise double one which cannot be declined without prejudice to publick Justice the other which cannot be avoyded without the death of the innocent an example of the first sort may be given in the case of killing a Robber or Theife who cannot otherwise be apprehended and of the later in case where one kills another in his own defence the former is free from all manner of punishment a Stanf l 1 c 5 the later not simply for it is materiall that the party who is slain set upon the party that kills him in his own House or neer the Ordinary high-way with a malicious intention to kill or rob him or in case that he be moved with sudden passion and pursues the party defending himself with an intention to fight with him so far untill he can fly no further for in the one case he kills him without incurring any punishment at all b 11 E 1 1 Mar c 12 Stan l 1 c 6 7 but in the other case he loseth his Goods c 6 E 1 c 9 nor is he received and taken into grace without the expresse pleasure and Indulgency of the supream power which notwithstanding is granted and obtained of course 19. Casuall Homicide is double likewise one which is meerly through mis-fortune the other which is mixed also with some fault in the party who kills the other That often happens in the Lawfull prosecution of a lawfull Act and often from a bruit or an inanimate thing Of the first kinde is where any one is killed with the fall of an Arme or Lopp of a Tree or a Tile from a House after warning given by the parties who are either lopping or tiling d West Simbol part 2 Sec 50 tit Indictments to which also may be added that which may happen in Justs and Tournements in regard the parties who are there in Action are supposed to be making trialls of their strength in the way of freindship And therefore K. Henry the second ordained that those should be pardoned thereby giving them to understand how much they were obliged to perform for the Kings sake when required e Spec Justic l 1 c Del Office del Coroner Of the second fort is where any are suddenly drowned in falling from a Ship Boat or Bridge or slain with a Cart Mill or the like In whch Cases we have before related what our Law determines f Fleta l. 1. c. 25. 20. Homicide which is mixt with some fault of the party who kills the other and yet is casuall or accidentall is where one that is lopping of a Tree or tiling of an house happens to kill another with a Lop or Tile not having given any warning g Stanf. Pleas Crown l. 1. c. 8. of which kind others draw many examples h Flet. l. 1. c. 31. 26 H. 8. c. 16. 5 Eliz. c. 17. 21. Felonies which are committed upon the Body and yet deprive it not of life is where any one out of malice cuts out the tongue either of a man or beast or puls out the eyes of any Subject i 25 H. 8. c. 6. 5 Eliz. c. 17. or commits the horrible and abominable sin of Sodomy with a man k Fleta l. 1. c. 37. but those who commited any kind of Sodomy were used to be buried alive in the Earth l 3 H. 7. c. 2. Lamb. l. 2. c. 7. or having stoln away a Widow Wife or Virgin who hath an Estate in Lands or Tenements or who hath goods or Chattells or who is Heir apparent to her Ancestor and marries her being so stollen away against her will or commits a Rape upon her or he who assists m Lamb. ib. 18 Eliz. c. 7. any one in the committing of such crime He also where any one hath the caâ—nall knowledge of any woman who is under the age of ten years old whether it be with her Will and consent or without n 12. H. 4. c. 13. Stanf. l. 1. c. 14. Glan l. 14 c. 6. or lastly where any one commits a Rape upon any woman whatsoever to these we may also adde him who marries a second Wife in the life time
after the Fact is where any one wittingly or ignorantly q Dier fo 355 n. 36. receives cherisheth assisteth and comforteth a Felon r Stanf. l. 1. c. 46. or who receives stoln goods to keep them or to dispose of them together with the Theife s Fulb. par Theft fo 202. Lamb. fo 295. But a Wife who in this case conceales the secret of her Hushand is exculable through the necessity of her Duty t Stanf. l. 1. c. 46. which is also true in case shee commit the Fact upon his command u Id. ib. c. 19. And there are also Accessories of Accessories as where any one doth wittingly receive the Accessory of an Accessory w Id. ib. 33. The punishment due to Felons both principalls as Accessories is to hang by the neck untill they dye and to forfeit their Goods and Lands if they have any x 24 H. 8. c. 45 Coo. l. 4. Beverleys case 124. Only here is the difference That the Accessory cannot be punished before the Principall be convict and Attaint y Stanf. l. 1. c. 43. Plow 97. Dyeâ— fol. 120. n. 10. Now the Lands escheat to the Lord of the Mannor who notwithstanding was formerly compelled to expect untill the King had received his yeare and his day and waste unlesse the King himselfe â—ere Lord. z Stanf. l. 3. c. 3. Flet. l. 1. c. 28. Moreover the Issue of Felons is so infected that they are excluded from all hope or possibility of succeeding in the Inheritances of their Ancestors which otherwise should have descended to them unlesse there be any thing more favourably enacted in case of any particular crime contrary to the common and ordinary forme a 1 Mar. c. 14 1 Jam. c. 11 12. 34. But these things which wee have spoken concerning the punishments of Treasons and Felonies must have their distinctions therefore it were requisite to explain them Now the way of impeaching any of these crimes is double one by Appeal b Stanf. l. 2. c. 52 53 54 55 56 57 58 59. the other by Indictment at the suite of the Supream Power c Id. c. 59. If they proceed by way of Appeale and that it be an Accuser who takes upon him the proofe of the crime it is at the election of the Defendant unlesse hee will confesse the fact to wage his Battaile with the Appellor or to be tryed by his Country Or in case he were a Peer of the Realm to be tryed by a Verdict of his Peers or Pares d Id. l. 3. c. 1. Flet. 1. c. 21. 31 32. But if he be indicted he is left solely to the tryall of his Country or Peers And if in either case he be convict he is punished with Death 35. But it sometimes happens that the party accused through contumacy refuseth to be tryed either way but either stands mute or pleads not so As by his answer Issue may be joyned to come to Tryall In which cases if it be by Appeale he is immediately adjudged to dye e Dyer 441. n. 49. If by Indictment then is it taken Pro Confesso in case of Treason And in cases of Felony he shall be impressed viz he shall be committed to the Prison from whence hee was brought where he shall be carryed into some low dark place and being stripped naked he shall be laid upon the bare ground his Pudâ—ndâ—e only covered and his Arms and Legs pulled out by four ropes fastned to the four corners of the room hee shall be stretched out upon his back Then being bound in this manner hee shall have so great a weight of Iron or Stone laid upon his Breast as hee is able to beare without confusion The day following he shall have 3. crusts of barly bread without drink next day to that he shall have three draughts of the water next to the Prison povided it be not running water but without Bread And so by turns he shall be fed with bread or water every day untill hee dye through the extremities of weight hunger and cold f Flet. l. 1. c. 32. Stanf. l. 2. c. 60. Dyer 241. n. 49. 36. Now a Woman who is condemned for any the aforesaid Crimes if she be with Child hath the Execution of Judgment deferr'd untill shee be delivered of her Infant g Flet. l. 1. c. 38. 37. There is also a misprision of Felony As in case any one knowes another to have committed Felony and doth not discover it unto the Supream Power or to a Magistrate h Termes of the Law v. misprision Cromp. fol. 39. Now the punishment for this crime is That the party shall be committed to prison untill hee have put in Security for the payment of such a Fine as the Judges shall impose upon him before whom he is convened i Id. ib. And it is to be observed That in all Treasons and Felonies there is a misprision of Treason or Felony comprehended And therefore it is in the power of the Supreame Power if in its clemency it thinks good so to doe to suppose him guilty of misprision only who really is guilty of a greater crime k Id. ib. 38. Next to these which are capitall are those crimes which used to be punished with perpetuall Exile and Banishment As those persons who having committed Treason or Felony and taken Sanctuary were accustomed having confest their crime before the Coroner to abjure the Realm and thereby avoid a greater punishment l Stanf. l. 2. c. 38 39. Terms of the Law v. Abiuration but this is long since altered m 21 H. 8. c. 2. 22 H. 8. cap. 14. 33 H. c. 12. And indeed there are few Facts at this day subject to this and many even of those are not so high as he who kills Deere and cannot finde security to put in for the payment of the Fine imposed is compelled to abjure the Common-wealth n Charta de Forest c. 10. Dier fol. 238. n. 34. which also hee is bound to doe who marries a Woman-Heir having stollen her out of the custody of her Guardian and is not able to satisfie for the value of her Marriage o 13 E. 1 c. 45. So also hee who accepts of a Benefice being elected by the Pope p 13. R. 2. Stat. 2. c. 2. And lastly a Papist who refuseth to come to Church according to Act of Parliament q 35 Eliz. c. 1. 39. Our Statutes also inflict a great penalty upon those who sue or implead any one in a Forreign Realm when the Action belongs properly to the Cognisance of our Courts or where Judgement hath in the same case been given by the Justices here As likewise upon those who by prosecuting a Plaint in another Court endeavour to retard or impeach Judgment given in the Supream Courts of our Supream Power For such Offenders being summoned by distresse either upon the Lands in question or upon any other of