as is agreed between the Landlord and the Tenant and when the person to whom such Lease is made doth enter by force of the said Lease and is in possession of the same then he is called a Tenant for terme of years And here ye shall note that if the Lessour that made the Lease Rent reserved hath reserved unto him a yearly Rent upon the said Lease as it is accustomably used to be done if the Rent be behind and unpaid it shall be in his lection either to enter and distrain for the Rent Action of Debt or to bring an Action of Debt against the Tenant for the arrerages of the same A good Plea But in this case it is requisite that the Lessour were seized of the Lands or Tenements at the time of the making of the Lease for otherwise it shall be a good Plea in the Action of Debt for the Tenant to say the Lessour had nothing in the Lands and Tenements at the time of the Lease made except the Lease were made by Deed indented for then the Plea shall not be in the Tenants mouth to plead And it is to be known Livery of Seisin needeth not in a Lease for terme of years that in a Lease for terme of years whether it be by Deed or without Deed there need no livery of seasin to be made to the Lessee but he may enter when he will by virtue of his Lease without any further ceremony of the Law And if a man leaseth Lands for terme of years though the Lessour chanceth to die before the Lessee doth enter yet he may enter well enough otherwise it is where livery of seisin is to be made as in Free-holds and inheritances Also if the Tenant for years doth waste Waste the Landlord may bring an Action of Waste against him and shall recover the place wasted and his treble damages Also if a Lease for years be made of two severall things and after the one is recovered the Lessee shall hold the other and the rent or farme shall be apportioned M. 12. H 8. Also if the Tenant for years granteth a greater estate in the Land then he hath himself whereby he conveyeth the fee-simple to himself Forfeiture he shall forfeit his Lease or terme CHAP. VI. Tenant at Will TEnant at will is he to whom Lands or Tenements be leased to have and to hold the same at the will of the Lessour and in this case the Lessour may put out his Tenant at what time he listeth but yet nevertheless if the Tenant have sowed the grounds with Corn in this case if the Lessour will enter and put out his Tenant before harvest the Law will give him free coming and going to reap and carry his Corn away without any punishment or damages to be sustained for his so doing because he knew not at what time the Lessour would enter but otherwise it is of Tenant for certain terme of years for if he soweth the ground and his terme of his Lease be come out and expire before the Corn be ripe in this case the Lessour or he in the reversion may enter and take the Corn because it was the folly of the Tenant to sowe the ground knowing the end of his terme So likewise Tenant at will shall have free coming and going after the time of the Lessours entry to carry away his houshold stuff and goods for a reasonable space Ye shall also understand that he that maketh a Lease at will may reserve an annual or yearly rent Distress or action of Debt in which case if the rent be behind he may enter very well and distrain the Goods and Chattels of the Tenant or at his election he may bring an Action of Debt against him Also it is to be known that a Tenant at will of a House or Tenement is not bound by the order of the Law to sustain and repair the Houses that be decayed and ruinous as is the Tenant for years and therefore no Action of Waste lieth against him Waste yet if he will do wilfull waste as if he plucketh down the Houses or cutteth down the Trees it hath been thought by the Sages of the Law that the Lessour may bring an Action of Trespass against him and shall recover his losses thereby sustained And if such a Tenant die and his Heir enter in that case the Lessour may have an Action of Trespass against the Heir for his entrie Trespass CHAP. VII Tenant by Copy or Court-Roll THere is another kind of Tenant at Will which is called Tenant by Copie of the Court Rolles and this is when a man is seised of a Mannour within which it hath been used time out of minde that the Tenants within the bounds and precinct of the said Mannour have holden Lands and Tenements to them and to their Heirs in fee-simple see-taile or for terme of life at the will of the Lord according to the custome of the Mannor and such a Tenant cannot alien or sell his Land by his Deed for if he doe the Land or Tenement that is so alienated and sold is forfeit into the Lords hands but if he will alien his Copyhold-Land to another he must according to the custome come into the Lords Court Surrender and there surrender it into the Lords hands to the behoof and use of him that shall have the Estate the form of which Surrender is commonly used to be thus Ad hanc curiam venit A. de B. sursum redidit in eadem curia unum mesvagium The form of a Surrender c. in manus Domini ad usum C. de D. heredum suorum vel heredum de corpore c. Et super hoc venit praedictus C. de D. eripiet de Domino in eadem curiâ mesvagium praedictum habendum tenendum sibi c. ad voluntatem Domini secundum consuetudinem Manerij faciend inde redditus servitia consuetudines inde juris debita censuetas c. dat Domino pro fine c. fecit Domino fidelitatem These as I said be called Tenants by Copy of Court Roll because they have none other Evidence to shew concerning their Lands save only the Copies of the Rolls of their Lords Court Neither can these Tenants sue or be sued for such Lands but in the Kings Court by Writ or otherwise but if they will in any wise implead or sue others for such Copie Lands they must do it by way of plaint in the Lords Court after this form A. de D. queritur versus C. de D. de placito terrae The form of the Plaint videlicet de uno mesvagio 46 acris terrae 4 acris prati c. cum pertinentiis facit protestationem sequi quaerelam istam in natura brevis Domini Regis assisae mortis antecessoris ad communem Legem pol ' c. Plegij de prosequendo F.O. c. Now although
the Feoffer held so that no man can hold in Frank-almoigne but by force of a grant made before the said Statute only the Kings Majesty excepted for he is out of the compass of the Statute Finally ye shall note That whereas a man shall hold in Frank-almoigne his Lord is bound by the Law to acquit him of all manner of service that any other Lord can have or demand out of the said Lands so that if he doth not acquit him but suffer him to be distrained then he shall have against his Lord a certain Writ called a Writ of Mesne Writ of Mesne and shall recover against him his damages and costs of his Suit CHAP. XXXV Of Burgage A Tenure in Burgage is where an antient Borough is of which the King his Lord and they which have Tenements within the same Borough Socage Tenure held the same of the King paying a certain Yearly Rent which Tenure in effect is but Socage Tenure likewise it is whereas any other Lord Spirituall or Temporall is Lord of such borough Here ye shall note Custome that for the most part such antient Boroughs and Towns have divers Customes and Usages which other Towns have not for some Boroughs have a Custome that the youngest Son shall Inherit before the Eldest which custome is commonly called Borough English Dower by Custome Also in some Borough by the Custome the Woman shall have for her Dowrie all the Lands and Tenements whereof her Husband was seized at any time during the Matrimony and Coverture Moreover Devise by Custome of Borough in some Boroughs a man may bequeath or devise his Lands or Tenements by Testament at the time of his death and by force of such devise or Legacy he to whom the bepuest is made after the death of the Testator which made such Testament may by force of this Antient Custome enter into the Land so to him bequeathed or devised without any Livery of Seisin to him made or further Ceremony of Law Howbeit how and in what manner a man may at this day devise his Lands by his last will and Testament by force of a certain new Statute it shall be hereafter declared Divers other Customes in England there be contrary to the course of the Common Law which if they be any thing probable and may stand with reason are good and effectuall notwithstanding they be against the Common Law And note That no Custome is allowable but such Custome as hath been used by Title of prescription or time out of mind CHAP. XXXVI Of Villinage or bond Service A Tenant in Villinage is properly when a Villaine that is to say a bondman holdeth of his Lord whose Bondman he is certain Lands or Tenements according to the Custome of the Manour or otherwise at the will of his Lord and to do his Lord Villane service as for to bear and carry the dung of his Lords out of the City or out of his Lords Manour and to lay it upon the Demeane Lands of the Lord or to do such like Service and Villanies Service Howbeit Free-men in some places hold their Tenements and Lands of their Lords by Custome by such sort of Service and their Tenure is called Tenure in Villinage and yet they themselves be no Villaines nor of servile condition but Freemen for the Land holden in Villinage maketh not the Tenant a Villaine but contrariwise a Villaine may make Free Land to be Villaines Land unto his Lord as if a Villaine purchaseth Land in Fee-simple or Fee-tayl the Lord of the Villaine may enter into the Land so purchased by his Bondmen and put him and his Heirs out for ever and this done the Lord if he will may Lease the same Land to his Villaine to hold of him in Villenage And here ye shall understand That Servitude or Villenage is the ordinance not of the Law of nature but of that Law which is called jus gentium by which a man is made subject contrary to nature unto another mans Dominion for he that is a Villaine or Bondman either he is so by Title of prescription that is to say he and his Ancestors have been Villains time out of mind or else he is a Villaine by his own confession in some Court of record so that all Villaines either they be born Villaines or else they be made so they be born Villaines when their Father being a Bondman himself begetteth them in Lawfull Wedlock either of a Free Woman or of a Bond Woman for so that the Father be Bond the Issues of him Lawfully begotten must needs be Bond by the Laws of England having no regard to the Condition of the Mother whereas in the Civill Laws of the Romanes it is clean contrary for there Pars sequitur ventrem that is to say the Servitude or Bondage of the Mother maketh the child Bond and not the Bondage of the Father Bastard Howbeit the Bastard Son of a Bond man shall not be Bond and the reason is because a Bastard is nullius filius in the Law that is to say no mans sonne They be made Bondmen or Villaines two waies either by their own proper act as when a Free Person being of full age will come into a Court of Record and there confesseth himself Bond to another man Or else by the Laws of Arms called jus gentium as when a man is taken prisoner in wars and is compelled to serve and become the Thrall and Bond man of him that took him the Law calleth such a Person a Villaine that is to say a slave and Thrall And ye shall note Definition of Villaines That Villaines be properly called in Latin Servi because that when they be taken in warre the Captains be wont not to kill them but to sell them and so to save their lives So that they be called Servi a servendo that is to say of serving They be called Mancipia a manu capiendo because they be taken by hand and power of their enemies Now as I said by the Law of Nature we are all born free but after that by the Law of of Gentility servitude or bodage did press and invade the world then ensued the bene-of Manumission Manumission is Quasi de manu emissio that is to say Manumission a giving out of the hand or power For so long as a man is in bondage and servitude he is subject to the hand and power of another and when he is Manumissed he is made free and delivered from the said power So that a Manumission is to say a Writing testifying that the Lord hath infranchised his Villain and all his off-spring and Sequell Also if the Lord maketh to his bondman an Obligation of a certain summe of money What acts maketh Manumission in Law or granteth to him by his Deed an Annuity or yearly Pension or leaseth to him by Deed Lands or Tenements for terme of years any of these acts do imploy an Enfranchisement Likewise if
the Lord maketh a Feoffment to his Villain and maketh unto him Livery of seisin this also is an Enfranchisement and secret Manumission Briefly to speak wheresoever the Lord compelleth his Villain by the course of the Law Causes of Infranchisem to do that thing that he might otherwise enforce him to do or to suffer without the authority and compulsion of the Law he doth by implication Enfranchise his Villain as if the Lord will bring against his Villain an action of debt an action of account of Covenant or of trespass These and such like be in the eye of the Law Enfranchisments and Manumissions because that the Lord in all these cases may have the effect and purpose of his sute that is to say the Goods Chattels and correction of his bondman without the compulsion of that Law even by his own proper power and authority which he hath upon his Villain But if the Lord doth sue his Villain by an appea of Felony the Villain being lawfully indicted of the same before this is no tacite Manumission or Enfranchisement For the Lord though he have power to beat his Villain and to spoyl him of his goods yet he cannot by the Law of this Realm put him to death Ye shall also understand that if a mans bondman purchase Lands or acquit and get unto him any other thing the Lord may forthwith enter and seize the same into his own hands Wherefore if the Lord will bring against his Villain a Praecipe quod reddat by which he demandeth against his Villain any Lands or Tenements this implieth an Enfranchisement for as much as he bindeth himself to the Prescript and Authority of the Law whereas he might use his own Authority by entring and seizing the said Lands Finally Ye shall mark that some Villains be called Villains in gross and other some be called Villains regardant In gross be they of which the Lord is severally seized and not by reason of any Lordship or Mannour but they be called regardant which do belong to a Mannour of which the Lord is seized And the said Villaines have been regardant that is to say exspectant and attendant time out of mind to the Lord of the said Mannour in doing unto him such services as to a Villain appertaineth CHAP. XXXVII Of antient Demesne THere is also a certain kind of Tenure which is called antient Demesne and these Tenants which hold by their service be Fee-holders and by Charter and not by Copy or Court-Roll or by the Verge after the Custom of the Mannour at the will of the Lord And these Tenants be such as hold of those Mannours which were S. Edwards the King or which were in the hands of King William the Conqueror and these Mannours be called the antient Demesnes of the King or the antient Demesnes of the Crown of England And to such Tenants which hold of such Mannours be many and divers Liberties given and granted by the Law as to be quit of tolé and passage and such like Impositions which be demanded of men for their Goods and Chattels sould or bought in Faires and Markets by them also to be quit and free of Tax and Tollage granted by Parliament except that the Kings Majesty do Tax antient Demesne as to him only appertaineth when he thinketh good for great and urgent Considerations Tenants also of antient Demesne ought to be quit of payments to the Expences and Charges of the Knights which came to the Parliament Also they ought not to be impannelled nor put in Juries and Enquests in the County out of their Mannours or Seigniory of antient Demesne for the Lands which they hold of such Mannour unless they have other Lands at the Common Law for which they ought to be charged And if such Tenants or any of them which hold of the Mannour of antient Demesne bedistreined to do unto their Lord other Services or Customes then they or their Ancesters have used to do Writ of Monstraverunt then may they sue a certain Writ called a Monstraverunt directed to the Lord commanding him that he distrein them not for to do other service or Customes then they have been accustomed to do And for further knowledg hereof you shall understand that in the Exchequer there is a Book called Dooms-day which Book was made in the time of the said S. Edward and all the Lands that were in the Seisin and in the hands of the said S. Edward at the time of the making of the said Book by antient Demeane But the Lands which then were in other mens hands Frank-fee though they be written in the said Book be frank Fee and no antient Demesne Finally It is to be noted that Tenants of antient Demesne shall not be impleaded for their said Lands out of the Mannour whereof they so hold and if they be Abatement of Writ they may shew the matter and abate the Writ But if they once Answer to the Writ and Judgment given then the Lands have lost the nature and benefit of antient Demesne and are become frank Fee that is to say Pleadable at the Common Law for evermore And thus have we spoken of the Diversity of Tenures CHAP. XXXVIII Of Rents FOr as much as upon every Tenure there is commonly reserved one Rent or other therefore I think it good somewhat to treat of Rents but ye must understand that there be sundry sorts of Rents There is one kind of Rent which is called Rent-service Division of Rent-service another which is called Charge and the third which is named in French Rent Secke that is to say in Latine Redditus siccus a drie Rent Now Rent-service is so called because it is knit to the Tenure and is as it were a service whereby a man holdeth his Lands or Tenements or at the least way when the Rents be unseverably coupled and knit with the service As for an example where the Tenant holdeth his Land of the King or of any other Lord by Fealty and by certain Rent or by any other sorts of services and by certain Rent this Rent is called Rent-service Distress of common right And here ye shall note That if this Rent-service be at any time when it ought to be paid behind and unpaid the Lord of whom the Land or Tenement is so holden whether it be in fee-simple fee-tayl for term of life for years or at will may of common right enter and distrein for the Rent though there be no mention at all nor cause of distress put in the Deed or Lease I said before that the Nature of this Rent-service is to be coupled and knit to the Tenure For where no Tenure is there can be no Rent-service And therefore if at this day I be seized of Lands of Fee-simple and make a Deed of Feoffment of the same to another in Fee-simple reserving by the same Deed a Rent this can be called no Rent-service because there can be now no Tenure between
taken had and sued out of the Kings hands by the person or persons to whom they shall be so disposed willed or devised in like manner as hath been used by any Heir or Heirs before the making of this Statute Every person having Mannours Lands c. of Estate in Inheritance holden of the King in chief by Knights-service or of the nature of Knights-service in chief hath power by his last Will in writing or by any other Act executed in his life to give dispose will or assign two parts thereof in three parts to be divided or else so much thereof as shall amount to the yearly value of two parts thereof in three parts to be divided in certainty and by speciall divisions that it may be known in severalty for the advancement of his Wife preferment of his Children and payment of his debts or otherwise at his pleasure Here also the custody Wardship and Primer Seisin or any of them as the case shall require of as much of such Mannours Lands c. as shall amount to the clear yearly value of the third part thereof as also all fines for Alienations upon such alteration of the Free-hold or Inheritance are saved to the King Every person having Mannours Lands c. of Estate of Inheritance holden of the King in chief by Knight-service and having other Mannours Lands c. holden of the King or any other by Knight-service or otherwise hath power to give dispose or will or assign by Will in writing or otherwise by Act executed in his life two parts thereof in three parts to be divided or so much thereof as shall amount to the yearly value of two parts thereof to be severed as aforesaid for the advancement of his Wife preferment of his Children and payment of his Debts or otherwise at his pleasure Here likewise the Custody Wardship Primer Seisin and Fines for Alienation are saved to the King as before Every person having Mannours Lands c. of estate of Inheritance holden of any other Lord by Knight-service and other Lands in Socage or of the nature of Socage may give dispose assure by will or otherwise by Act executed in his life two parts of the Knight-service Land or so much thereof as shall amount to the yearly value of two parts as aforesaid and also all the Socage Land at his pleasure saving to such Lord for his Custody and Wardship so much of the Knight-service Land as shall amount to the yearlyly value of the third part thereof Every person having Mannours Lands c. holden of the King by Knight-service and not in chief or any Mannours Lands c. holden of the King by Knight-service and not in chief and other Mannours Lands c. holden of any other person by Knight-service and also other Mannours Lands c. holden of any other person in Soccage or in the nature of Soccage may give dispose will devise and assure by his last Will or otherwise by Act executed in his life two parts of the said Knight-service Land or so much thereof as shall amount to two parts of the yearly value thereof as aforesaid all the Soccage Land at his will and pleasure Howbeit here also the Custody and Wardship of so much of the said Knight-service Mannours Lands c. as shall amount to the yearly value of the third part thereof are saved to the King and other Lords respectively and if the King or other Lord have not in this case a full third part set out for them they may respectively take into their possession so much of the other two parts as will make it a full third part Provided that all persons shall sue Liverie for Possessions Reversions or Remainders and pay Reliefs and Heriots as they did before the making of this Act. Fines for Alienations shall be paid in Chancery upon Writs of Entry in the Post for common Recoveries suffered of any Mannours Lands c. holden of the King in chief in like manner as upon Alienations of such Mannours Lands c. by Fine or Feoffment Howbeit no other Fine shall be paid there for any such Writs but only such Fines for Alienations Where two or more hold any Mannours Lands c. of the King by Knight-service joyntly to them and their Heirs of one of them and he that hath the Inheritance dieth his Heir being within age the King shall have the Ward and Marriage of such Heir the life of Free holder or Free holders notwithstanding saving to every Woman her Interest of Dower in such Lands to be assigned out of the two parts thereof severed from the third part as abovesaid and not otherwise and saving also the King the Reversions of all such Tenants by joynt-Tenure and Dower after the death of such Tenants in case they happen to die during the Nonage of the Kings Ward CHAP. LIV. Matrimony and Marriage ALl Marriages shall be adjudged lawfull which are not prohibited by Gods Law What marriages shall be lawfull Spirituall persons may marry 32 H. 8.38 All Laws Canons Constitutions and Ordinances which prohibit Marriages to spirituall Persons who by Gods Law may marry and all forfeitures therein shall be void 2 3. E. 6.21 Bigamus is Felony A Bigamus shall suffer death as a Felon unless he or she have had no notice that the Husband or Wife was living within seaven years before or the Marriage be severed by Divorce This Felony shall cause no corruption of blood Bigamy causeth no corruption of blood c. or loss of Dower or inheritance 1 Jac. 11. CHAP. LV. Of Voucher VOucher is when a Praecipe quod reddat of Land is brought against a man What Voucher is and another ought to Warrant the Land to the Tenant then the Tenant shall Vouch him to Warranty and thereupon he shall have a Writ called Summoneas ad Warrantizandum And if the Sheriff return that he hath nothing by the which he may be Summoned then there shall go forth a Writ called Sequatur sub suo periculo and when he cometh he shall plead with the Demandant and if he come not or if he come and cannot barre the Demandant then the Demandant shall recover the Land against the Tenant and the Tenant shall recover as much Land in value against the Vouchee and thereupon shall have a Writ called Capias ad valentiam against the Vouchee CHAP. LIV. Voucher and Connter-Plea of Voucher WHen any demandeth Land against another A Tenant impleaded voucheth the vouchee denieth the Warranty and the party that is impleaded Voucheth to Warranty and the Vouchee denieth his Warranty in this case like as the Tenant should loose the Land in Demand in case where he Vouched and the Vouchee could discharge himself of the Warranty In the same wise shall the Vouchee loose in case where he denieth his Warranty and if it be found and tryed against him that he is bound to Warranty And if an Enquest be depending between the Tenant and the
some such Tenants have an Inheritance according to the custome of that Mannor yet in very deed they are but Tenants at the will of the Lord for as some men think if the Lord will expell them and put them forth they have no remedy at all but to sue unto their Lord by way of Petition desiring him to be a good and gracious Lord unto them for if they might have any remedy by the Law then should they not be called say they Tenants at the will of the Lord after the custome of the Mannor but other men of no less Learning and prudence have been of contrary judgment as Lord Brian Chief Justice in the time of King Edward the fourth whose opinion was alwayes that if such a Tenant by the custome paying his Services be ejected and put forth by his Lord without cause reasonable Action of Trespass he may very well bring and maintain an Action of Trespass against his Lord at the Common Law as appeareth Termino Hillarij An. 21. E. 4. Also Lord Danby Chief Justice likewise was of the same judgment as appeareth Termino Mich. An. 7. E. 4. where he saith That the Tenant by the custome is as well Inheritable to have his Land after the custome as is he that hath a free-hold at the Common Law but the determination of this question I remit to my great Masters which can lose the knots and ambiguities of the Law forasmuch as yet still of this matter Causidici certant adhuc sub judice lis est Also ye shall understand that the usage of some Mannor is when the Tenant will surrender his Land to the use of another that he shall take a Wand or a Rod in his hand and deliver it to the Steward of the Court and the Steward shall deliver the same Wand in name of Seisin to him that shall take the Land and such a Tenant is called Tenant by the Verge Divers other customs there be of surrendring of Copyhold Lands which here for tediousness I will omit And forasmuch as Tenants by custome of the Mannor have by the course of the Common Law no free-hold therefore they be called Tenants of base Tenure Base Tenure Also if such a Tenant letteth to farme his Copyhold Land for longer time then a twelve moneth and a day without the Lords licence it is a forfeiture of his Land to his Lord. And know ye that if this Tenant fell any Timber that groweth upon the Land but only for the reparation of the same this is Wast and a forfeiture of his Copyhold Hitherto have I treated of the first member of our division that is to wit of Chattels for as I said all Leases for terme of years and at will be accounted in the Law but as Chattels and be comprised under that name save that these be called Chattels reals whereas Kine Oxen Chattell reall and personall Horses Money Plate Corn and such like be called Chattels personals Now we will proceed to the explanation of the second member that is to say of Freeholds CHAP. VIII Of Freeholds FReeholds or Frank-tenements a man may have in sundry wise for either he is seized for terme of his own life or for terme of another mans life if he be seized for terme of his own life either he hath gotten such estate by way of Purchase or else the Law hath intituled him thereunto I call it by purchase whether he cometh unto it by his own bargaining and procurement or by the gift of his friend and I call it by the operation of intituling of the Law when a man marrieth a woman that is an inheritrix and hath issue by her Tenure by the Courtesie and she dieth now shall he have the Lands during his life by course of the Law and shall be called Tenant by the courtesie of England Likewise if a man be seized in fee-simple or fee-taile of Lands and taketh a wife and he dieth the Law giveth unto the wise the third part of her husbands Lands for terme of life Tenant in Dower and she shall be called Tenant in Dower CHAP. IX Tenant for terme of Life TEnant for terme of Life is he that holdeth Lands or Tenements for terme of his own life or for terme of anothers life howbeit the most frequent and common manner of speaking is to call him that hath an estate for terme of his own life Tenant for life and him that hath an estate for terme of anothers life Tenant for terme dauter vie that is to say Tenant for terme of anothers life Ye shall note that like as he that maketh the Lease is called the Lessour and he to whom the Lease is made is called the Lessee so he that maketh the Feoffment is called the Feoffer and he to whom the Feoffment is made the Feoffee Also if the Tenant for terme of life or Tenant for terme of another mans life doe waste Waste the Lessour or he in the reversion shall maintain very well an Action of Waste against him and shall by the same recover trebble damages Finally Ye shall understand that by an Act of Parliament made in the 27. year of our Soveraign Lord King Henry the eight it is enacted That no Freehold nor estate of Inheritance shall pass nor take effect by reason of any bargain and sale except the same be made by writing indented sealed and enrolled in one of the Kings Majesties Courts at Westminster or else within the County where the Land doth lie before the Custos Rotulorum and two Justices of Peace and the Clerk of the Peace of the same County or two of them at least of which the said Clerk shall be one and that such enrolment be made within six moneths after the date of such writing and for the enrolment of every such writing where the Land comprised therein is not above the yearly value of Fourty shillings they shall take two shillings that is Twelve pence to the Justices and Twelve pence to the Clerk and if the Land be above the yearly value of Fourty shillings then they shall take Five shillings that is Two shillings and six pence to the Justices and Two shillings and six pence to the Clerk which shall enroll and ingross sufficiently in parchment such Deed and writing and at every years end he shall deliver the same to the Custos Rotulorum of the same County to remain in his custody among other Records of the same County so that the parties resorting thither may see them provided that this extend not to any Tenements or Hereditaments lying within any City or Town Corporate wherein the Majors Records or other Officers have authority or have lawfully used to enroll any Evidences or writings within their Precinct CHAP. X. Tenant by the Courtesie TEnant by the Courtesie of England is he that hath married a Wife inherited and hath had issue by her and she is dead in this case the Law of England permitteth and
for the Defendant or the Plaintiff be non-suit or otherwise barred the Defendant shall recover such Dammages and Costs as the Plaintiff should have had if he had recorded Both Parties shall in such Writs have like pleas aid prayers and Joynder in age as at the Common Law notwithstanding this Act Pleas in Avoury Pleas of Disclaymer only excepted 2 H. 8.19 CHAP. XLI For the Assurance of Farmers made ALl Leases hereafter to be made of any Lands or other Hereditamens by writing indented under Seal for term of years or for term of life by any persons being of the age of twenty one years having any estate of Inheritance either in Fee-simple or in Fee-tayl in their own right or in the right of their Charges or Wives or joyntly with their Wives shall be good and effectual against the Lessors their Wives Heirs and Successors according to the estate comprized in such Indenture of Lease Surrender of the old Lease This Statue shall not extend to any Lease to be made of Lands in the hands of any Farmer by force of any old Lease unless such old Leases expired within a year after the making of the new nor to any Grant to be made of any Reversions of Mannours Lands c. nor to any Leases of such Mannours Lands c. which have not been lett to Farme or occupied by Farmers twenty years before such Lease made nor to any Lease to be made without impeachment of wast nor to any Lease to be made for above twenty one years or three lives from the day of the making thereof and that upon every such Lease there be reserved so much yearly Rent as hath been usually paid for the Lands so lett within twenty years next before such Lease made and the Reversioners of the Mannours Lands c. so lett after the death of such Lessor or his Heirs may have such remedy against such Lessee his Executors Assignes as such Lessor might have had against such Lessee Provided that all Leases made by the Husband of Mannours Lands The Wife shall be party to the Lease c. being the Inheritance of the Wife shall be made by Indenture in the name of the Husband and Wife and she to seal to the same and the Rent shall be reserved to the Husband and Wife and the Heirs of the Wife And here the Husband shall not alien or discharge the Rent or any part thereof longer then during the Coverture unless it be by fine levied by Husband and Wife Provided furthermore that this Act extend not to give liberty to take more Farmes or Leases then might have been taken before this Act Vide Stat. 25. H. 8.13 Sheepe nor to any Parson or Vicar to make any Lease otherwise then they might have done before It is furthermore enacted What grant by a Corporation is good that the Grant Lease or gift or Election of the Governour or Ruler of any Hospitall Colledge Deanry or other corporation with the assent of the more part of such of the same as have voice thereunto shall be good and effectuall any Rule or Statute made by any Founder to the contrary notwithstanding 32 H. 8. CHAP. XLII Of falsifying of recoveries by Farmers 21. H. 15. A Termer for yeares may falsifie a feigned recovery had against them in the reversion and shall retain and enjoy his Term against the recoverer his Heirs and Assigns according to his Lease Also the recoverer shall have like remedy against the termer Avowry or Action of Debt his Executors or Assigns by Avowry or Action of debt for Rents and Services reserved upon such Lease and due after such recovery and also like Action for wast done after such recovery as the Lessor might have had if such recovery had never been No Statute of the staple Statute Merchant or execution by Elegit shall be avoided by such feigned recovery but such Tenants shall also have such remedy to falsifie such recoveries as is here provided for the Lessee for years CHAP. XLIII Of Tythes and how they shall be recovered 33. H. 8.7 ALl Persons shall duely set forth and pay all Tythes and offerings according to the custome of the places where they grow due If Tythes or offerings be not so set out and paid the party grieved may convent him that so detain them before the Ecclesiasticall Judg who hath power to hear and determine the matter in question Ordinarily or Summarily according to the Ecclesiasticall Lawes and to give sentence thereupon accordingly Here if any of the parties appeale the Judg upon such appeale shall adjudge to the other party reasonable cases and compell the Appealant to satisfie them by process and censures Ecclesiasticall taking surety of the other party to whom the costs shall be adjudged to restore the costs in case the principall case pass against him If any Person after such sentence given refuse to pay Tythes or Summes of Money so adjudged then two just of P. 1. Qu. shall upon Certificate thereof from the Judge commit the Party so refusing the next Goale there to remain till he have found Sureties to be bound by Recognisance or otherwise before the same Judge to the King to performe the said Sentence Howbeit none shall be thereby compelled to pay Tythes for Lands or other Hereditaments which by the Laws and Statutes of this Realm are discharged and not chargeable with the payment of Tythes neither shall it extend to the City of London or the Suburbs thereof In all cases where any Person who hath any Estate of Inheritance Free-hold Term right or interest in any Parsonage Vicarage or other Ecclesiasticall profit which now be or hereafter shall be made Temporall and admitted to be and abide in Temporall hand and to lay uses by the Laws and Statutes of this Realm shall happen to be hereafter outed or otherwise wronged from or concerning the same he or she shall have remedy for the same in the Kings Temporall Courts or other Temporall Courts as the case shall require by Writs of precipe quod reddat Assize of novell disseisin Mordancester quod ei defoveat Writs of Dower and other Originall Writs as the case shall require in like manner as for Lands Tenements and other Hereditaments in such manner to be demanded Also Writs of Covenant and other Writs for Fines to be Levied and all other assurances to be had and made of Parsonages Vicarages and other profits called Spirituall shall be devised and granted in Chancery as hath been used for Fines and Assurances of other Land Likewise all Judgements given and Fines Levied for and of such Parsonages c. shall be of like effect as judgments given and Fines levied of other Lands 32. H. 8. CHAP. XLIII Of Mortuaries 21. H. 8.6 NO Spirituall Person his Bayliffe or Lessee shall take or demand more for a Mortuary then as is hereafter expressed nor shall convent any Person before any Ecclesiasticall Judge for the recovery of more for the same then
and Will and afterwards maketh another Will by words if his last Will be proved before the Ordinary and by him put in writing and in sealed with his Seale such last Will shall avoid the first Will unless it be in speciall cases And so alwaies the latter Will and Testament shall avoid the former Finally by an Act made the 21. Year of H. 8. it was ordained that part of the Executors which take upon them the charge of a Will may sell any Land devised by the Testator to be sold albeit the other part which refuse will not joyn with them CHAP. LI. The difference between Executors and Administrators EXecutor is when a man maketh his Testament and last Will and therein nameth the person which shall execute his Testament then he that is so named is his Executor and such an Executor shall have an Action against every Debtor of his Testator Assets in the hands of the Executors and if his Executors have Assets that is to say sufficient in their hands then shall every one to whom the Testator was in Debt have Action against the Executor if he have an Obligation or specialty to shew But in every Cause where the Testator might wage his Law there no Action lieth against the Executor Administrator is he to whom the Ordinary commiteth the Administration and bestowing the goods of a dead man for default of an Executor And Actions shall lye against him or for him as for an Executor and he shall be charged to the value of the goods of the dead and not further if it be not by his false Plea or for that he hath wasted the goods of the dead But if the Administrators dye his Executors be not Administrators Executors of his own wrong but it behoveth the ordinary to commit a new Administration Howbeit if a stranger I mean him that is neither Executor named in the Testament and last Will nor yet Administrator appointed by the ordinary will take the goods of the dead and Administrator of his own head and mind without Lawfull authority this person shall be charged and sued as an Executor and not as an Administrator in an Action which is brought against him by any Creditor But if the ordinary make a Letter de colligendum bona defuncti he that hath such a Letter is not Administrator but the Action lieth in this case against the ordinary as well as if he took the goods by his own hand or by the hand of any other his Servant by any other Commandement CHAP. LII An Act of the probate of Testaments made Anno Dom. 21. H. 8.5 NOthing shall be given for the Probate of a Will or Commision of Administration when the goods of the dead exceed not 5lb save only 6d to the Register Nevertheless the Judge shall not refuse to prove such a Testament being exhibited to him in writing with Wax ready to be Sealed and proved Communi formâ but shall dispatch the party without delay For the Probate of a Will and all other things concerning the same when the goods of the dead exceed 5lb but not 40lb the Judges Fee is 2s 6d and the Registers 12d and when they exceed 40. the Judges Fee is 2s 6d as before and the Registers as much or the Register may refuse the 2s 6d and take a penny for every ten lines of the Will each line being conceived to contain ten Inches in length and for these Fees they shall dispatch the party without frustratory delay Where there is no Will or the Executors refuse it Administration ought to be committed to the Intestates Widow if he left any or to the Widow and the next of the Kindred or in case he left no Widow to one or more of the Kindred or in case they look not after it to any Creditor or Creditors that desire it or in case they also neglect it to any other person or persons at the descretion of the Ordinary who is enjoyned to take Security of such Administrators for the due Administration of the Intestates goods Nothing shall be given for Letters of Administration when the Intestates goods exceed not 5lb and when they exceed 5lb but not 40lb the Officers Fees are only 2s 6d The Executors or Administrators calling to them two or more Creditors or so many of the next of the Kin or in their default two or more neighbours or friends of the dead shall in their presence cause a true Inventory to be made of the goods and shall deliver the same in upon Oath unto the Ordinary indented whereof one part shall remain with the Ordinary and the other with the Executors and Administratours The Judge or Ordinary shall not refuse to receive an Inventory indented Inventory of goods so tendered unto him in Court together with his oath to verifie the same Lands devised to be sold shall not be accounted any of the Testators goods The Fee for the Copy either of the Will or Inventory is the same with that above allowed for registring the Will or else the Register may take a Penny for every ten lines of the length as aforesaid The Officer that taketh more then his due Fee shall forfeit that excess to the Party grieved and besides 10lb to be divided betwixt the King and the same party grieved This Act shall not alter the Customes where less money hath been for probate of Testaments The Ordinary may convent Executors to prove the Testators Will and to bring in the Inventory as before notwithstanding this Act. CHAP. LIII How Lands and Tenements may be by Testament or otherwise disposed of Enacted Anno 32. H. 8. EVery person having Mannours Lands Tenements or Hereditaments holden in Soccage or of the nature of Soccage Tenure and not having any such Mannours Lands c. holden of the King by Knights-service Soccage or of the nature of Tenure in chief Soccage Tenure in chief nor of any other person by Knights-service shall have power to give dispose will and devise as well by his last Will and Testament in writing or otherwise by any Act executed in his life all such Mannours Lands c. at his pleasure Every person having Mannours Lands c. holden of the King in Soccage or of the nature of Soccage in chief and having any other Mannours Lands c. holden of any other person in Soccage or of the nature of Soccage and not having any Mannours Lands c. holden of the King or any other by Knights-service shall have power to give will dispose and devise as well by his last Will and Testament in writing as otherwise by any Act executed in his life all such Mannours Lands c. or any of them at his pleasure Howbeit all such Primer Seisins Reliefs Fines for Alienations and all other rights and duties for Tenures in Soccage or in the nature of Soccage in chief as have been heretofore used are saved to the King and the said Mannours Lands c. are to be