by two Knights Fees and then the Heir being of full age at the death of his Ancester shall pay to his Lord for Relief ten Pounds CHAP. XXVII Service of Castle-Guard YE shall understand that a man may hold by Knights-service and yet not hold by Escuage nor shall pay any Escuage for he may hold by Castle-Guard that is to say by service to keep a Tower of his Lords Castle or some other place upon a reasonable warning when his Lord heareth that enemies will come or be already come into England This service is also Knights-service Ground in the Law and draweth to it Ward Marriage and Relief as in all Cases the common Knights-service doth CHAP. XXVIII Of Grand-Serjeanty THere is also another kind of Knights-service which is called Grand-Serjeanty that is where a man holdeth his Lands or Tenements of the King by such service as he oweth in proper person to do as to bear the Banner of our Sovereign Lord the King or his Spear or to conduct his Host or to be his Marshall or to be the lower Carver or Butler at the Feast of the Coronation or to be one of the Chamberlains of the receipt of his Exchequer or to do like service to the King in proper person Such manner of service I say is called Grand-Serjeanty that is to say A great or high Service And the cause why it is so called is because it is the most honourable and most worthy Service that is The most high Service For he that holdeth by Escuage is not appointed by his Tenure to do any other more special Service then another is bound that holdeth by Escuage but he that holdeth by Grand-Serjeanty is bound to do some speciall service to the King Also if he that holdeth of the King by Grand-Serjeanty dieth Relief of the Tenant by Grand-Serjeanty his Heir being of full age then the Heir shall pay to the King for Relief not only a 100s as he that holdeth by Escuage shall do but moreover the clear yearly value of these Lands and Tenements which he so holdeth of the King by Grand-Serjeanty Tenure by Cornage Furthermore ye shall observe that in the Marches of Scotland some men hold of the King by Cornage that is to say blowing of a Horn to the intent to warn the men of the Countrey when they hear that the Scots or other their Enemies be coming or be already entred into England which service is also a kind of Grand-serjeanty Grand-Serjeanty therefore is as much to say in Latin as Magnum-servitium Definition of Serjeanty that is to say A great or high Service Like a Petty-Serjeanty is called Parvum servitium that is to say A little or small service But to revert again to the matter Ye shall Note that if any Tenant holdeth of any other Lord then of the King by such service of Cornage then it is no Grand-Serjeanty but yet nevertheless it is Knights service and draweth to it Ward Marriage and Relief For this is a Rule infallible That none can hold by Grand-Serjeanty but of the Kings Majesty only Rule in the Law Finally Ye shall understand that all they which hold of the King by this Service called Grand-Serjeanty do hold of the King by Knights-service and by virtue of his Tenure the King shall have of them Ward Marriage and Relief but Escuage yet he shall not have of them unless they hold by Escuage of him by express speciall words CHAP. XXIX Petty-Serjeanty TEnant by Petty-Serjeanty is he that holdeth his Land immediately of our Sovereign Lord the King by this manner of service to pay to the King yearly either a Bow a Spear a Dagger a pair of Gauntlets a pair of Spurres of Gold a Shaft or such other small things appertaining to the Warre And this service is in effect but Socage because that such a Tenant is not bound by his Tenure to go nor do any thing in his own proper person touching the Warre but only to render and pay yearly certain things to the King as a man ought to pay a Rent Wherefore this Service of Petty-Serjeanty is no Knights-service but yet ye shall note That a man cannot hold neither by Petty-Serjeanty neither by Grand-Serjeanty but of the King only CHAP. XXX Homage Ancestrell TEnant by Homage Ancestrell is he which holdeth his Land of his Lord by Homage and both he and his Ancesters whose Heir he is have holden the same Land of the said Lord and of his Ancesters time out of mind by Homage and have done unto them Homage And this is called Homage Ancestrell by reason of the long continuance which hath been by title of prescription Warranty because of Homage Ancestrel as well concerning the Tenancy in the blood of the Tenant as concerning the Lordship in the Lord. And this service of Homage Ancestrell draweth unto it Warranty that is to say if the Lord which is now in life hath once received the Homage of his Tenant he ought to warrant the same Tenant what time soever he shall be impleaded or sued for such Lands so holden of him by Homage Ancestrell Moreover such service of Homage ancestrell draweth unto it acquitall that is to say the Lord ought to acquit the Tenant against other Lords that can demand any manner of Service of the Tenancie Wherefore if in this case the Tenant which holdeth by Homage ancestrell be impleaded of his Lands and voucheth or calleth his Lord to Warrantie who cometh in by Process and demandeth of the Tenant what he hath to binde him to the Warrantie and the Tenant sheweth how he and his ancestors whose Heir he is have holden his Lands of him and of his ancestors time out of minde surely the Lord if he cannot deny this and if he hath received the Homage of such a Tenant is bound by the Law to warrant him his Land so that if the Tenant lose his Lands in default of the Lord thus vouched that is to say called to warrantie he shall recover against him as much in value of these Lands and Tenements which the Lord had at the time of calling to warranty or at any time after but if the Lord never received the Homage of his Tenant then he may very well when he is thus vouched disclaim in the Lordship or Seignory and so put out the Tenant of his warranty Wherefore ye shall note that in every case where the Lord disclaimeth in his Seigniory in Court of Record his Seigniory or Lordship is extinct and the Tenant shall hold from henceforth of the next Lord to him that thus disclaimeth Thus ye perceive that Homage ancestrell is a long continuance as well in the blood of the Tenant in respect of his Tenancy as in the blood of the Lord in respect of his Seigniory wherefore if the Tenant doth once alien his Lands to another although he purchase the same again yet he shall not hold any longer by Homage ancestrell because of his
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
Vouchee and the Demandant doth desire a Writ to cause the Jury to appear it shall be granted unto him West 2.13 Ed. 1.6 In a Writ of Mortdancester of Cosenage of Ayel nuper obiit of Intrusion and the like whereby Lands or Tenements are demanded Counterpleading of Voucher which ought to discend avert remaine or escheat by the death of any Ancestor or other wise if the Tenant Vouch to Warranty and the Demandant counterpleadeth him and will avert by Assize and by the Country or otherwise as the Court will award that the Tenantor his Ancestor whose Heir he is was the first that entred after the death of him whose seisen he demandeth the Averment of the Demandant shall be received if the Tenant will abide thereupon and if not be shall be further compelled to another answer And in a Writ of right Voucher in a Writ of right if the Tenant Vouch to Warranty and the Demandant will counterplead him and be ready to averre by the Country that he that is Vouched nor his Ancestors had never seisin of the Land or Tenement demanded Fee or service by the hands of the Tenant or his Ancestors since the time of him whose seisin the Demandant declareth untill the time that the Writ was purchased and the Plea moved whereby he might have Enfeoffed the Tenant or his Ancestors and then shall the Averrement of the Demandant be received if the Tenant will abide thereupon and if not the Tenant shall be further compelled to another answer West 1.3 E. 1.39 And whatsoever Tenant do Vouch and the Demandant will averre in form aforesaid his Averrement shall be admitted whether the party Vouched be absent or present without any respect had thereunto 20. E. 1. Stat. de vocatis ad Warantum In all Writs of Entre which make mention of degrees Voucher in Writs of Entre none shall Vouch out of the Line or in other Writs of Entre where no mention is made of degrees which Writs shall not be maintained but in cases where the other Writs of degree cannot lye nor hold place 3. E. 1.39 If percase the Tenant hath a deed that compriseth Warranty of another man which is bound in none of the cases aforesaid Warrantia chartae to Warrantie of an Elder degree his recovery shall be saved unto him by a Writ of Warrantia Chartae out of the Chancery when he will purchase it but the Plea shall not be delayed therefore West 1.3 E. 1.39 If the Tenant will Vouch to Warranty a dead man Voucher of a dead man and the Demandants will aver that the Vouchee is dead or that there is none such their Averment shall be received without more delay 14. E. 3.18 If one being impleaded in the City of London do Vouch a forrein to Warranty One impleaded in London doth Vouch a forrein the Maior and the Bayliffs shall adjourn the parties before the Justices of the Bench at a certain day and shall send their Record thither and the Justices shall cause the Warranter to be summoned before them and shall try the Warranty And the Maior and the Bayliffs shall surcease in the mean time in the matter that dependeth before them by Writ untill such time as the Warranty be determined before the Justices of the Bench And when the matter shall be determined Commandment shall be given to the Vouchee to depart into the City and to answer unto the first Plea and the Demandant at his Suit shall have a Writ from the Justices of the Bench unto the Major and Bayliffs that they shall proceed in the Plea And if the Demandant recover the Tenant shall come to the Justices of the Bench and have a Writ to the Major and Bayliffs that in case the Tenant have lost his Land they shall cause it to be extended and and return the same extent unto the Bench at a certain day and after it shall be commanded to the Sheriff of the Shire where the Warranty was Summoned that he shall cause the Tenant to have of the Lands of the Warrantor to the like value and if it fortune that the Tenant make default at the day that is assigned him in the Bench then shall there go forth a Writ from the Justices of the Bench to the Major and Bayliffs to seize the Land demanded into the Kings hands by Petite Cape and to Summon the Tenant that he be at the Hustings at a certain day whereat the Justices shall be advised to give judgement upon the same default if he cannot save it And if he can save it then the Justices shall be Certyfied thereof by their Record and by the same record they shall plead the Warranty Cloucest 6. E. 1.12 An. 9. E. 1. Articul Stat. Gloucest None being Vouched to Warranty before the K. Just in Plea of Land or Tenement shall be amerced Day given to him that is Vouched because he was not present when he was Vouched to Warranty except the first day of the coming of the same Justices But if he that is Vouched to Warranty be within the County the Sheriff shall be commanded that he shall cause him to appear with the 3d. or 4th day according to the distance of the places as the Justices in Eire have used to do And if he do remain out of the County then he shall have reasonable Summons of 15. dayes at the least according to the Justices discretion and the Common Law Marlb 52. H. 3.26 CHAP. LVI Of Warranty WArranty is in three manners that is to say Warranty is of three sorts Warranty Lineall and Warranty Collaterall and which beginneth by Disseisin Warranty Lineall is where a man seized in Fee Lineall Warranty or in tayl maketh a Feoffment by his deed to another and bindeth him and his Heirs to Warranty and hath Issue a Son and dyeth and the Warranty descendeth to his Sonne that is Lineall Warranty for that if no deed with Warranty had been made then the right of the Lands should have descended to the Son as Heir to his Father and he shall convey the dissent from the Father to the Sonne But if the Tenant in the tayle discontinue the tayle Collateral Warranty and hath issue and dyeth and the Unckle of the issue releaseth to the discontinued with Warranty c. and dyeth without issue this is a Collaterall Warranty to the Issue in the tayle for that the Warranty descendeth upon the Issue the which may not convey him to the tayle by mean of his Unckle And in every case where a man demandeth Lands in Fee-tayle by Writ of Formedon if any Ancenster of the Issue in the tayl which hath possession or which hath not possession maketh a Warranty and he that sueth a Writ of Formedon by possibility by matter that may be done might convey to him Title by force of the gift by him that made the Warranty c. That is then a Lineall Warranty and by such a Lineall Warranty
the Issue in the tayl shall not be barred except that he have assets to him discended But if be may not by no possibility that may be convey to him Title by force of the gift by him that made the Warranty then that is a Collaterall Warranty and by such a Collaterall Warranty the Issue in the tayl shall be barred without any assets And the cause that such a Collaterall Warranty is a barre to the Issue in the tayl is for that that all Warranties before the Statute of Glocester which descended to them which be Heirs to them which made the Warranties were barrs to the same Heirs to demand any Lands except the Warranties that began by disseisin and for that that the said Statute hath ordained that the Warranty of the Father shall be no barr to his Son for the Lands which come to the Heritage of the Mother nor the Warranty of the Mother shall be no barr to the Sonne for the Lands which come of the Heritage of the Father by the Statute 11. H. 7. Cap. 20. And none of the Statutes have made or ordained remedy against the Warranty that is Collaterall to the Issue in the tayle and therefore the Warranty that is Collaterall to the Issue in the tayle is yet in his force and shall be a barr to the Issue in the tayl as it was before the Statute And it behoveth that all Warranties whereby the Heir shall be barred that the Warranty descended by course of the Common Law to him which is Heir to him that made the Warranty or else it shall be no barre for if the Tenant in the tayl of Lands in Borough English where the youngest Sonne shall inherit by the Custome discontinueth the tayl and hath Issue and Sons and the Unckle releaseth to the discontinued with Warranty and dyeth and the younger Son bringeth a Formedon yet he shall not be barred by such Warranty Causâ quâ supra And if any man maketh a Deed with Warranty whereby his Heir should be barred and after he that made the Warranty be attaint of Felony then his Heir shall not be barred by such Warranty for that that such Warranty might not discend upon him for that that the blood is corrupt Warranty beginning by diseisin is Warranty by disseisin if the Sonne purchase Lands and after let the Lands to his Father for term of years and the Father by his Deed infeoffeth a stranger and bindeth him and his Heirs to Warranty and the Father dieth whereby the Warranty descendeth to this Sonne but the Sonne may well enter notwitstanding his Warranty for that that this Warranty begun by disesin when the Father made the Feoffment which was a diseisin to the Sonne And as it is said of the Father so it may be said of every other Ancester And the same Law is if the Ancester be Tenant by Eligit or by Statute Merchant and make a Feoffment with Warranty such Warranty shall be no Barres because they begin by diseisin In Deeds where it is contained Warranty by dedi Concessi Dedi concessi tale cenementum viz. I have given and granted such a Tenement without Homage or any clause that containeth Warranty and to hold of the Donors and their Heirs by a certain service the Donors and their heirs be bound to Warranty and where it is contained Dedi concessi c. to hold of the chief Lords of the Fee or of any other then of the Feoffors or their Heirs reserving no service to himself without Homage or without the aforesaid clause of Warranty his Heirs shall not be bound to Warranty but the Feoffor by reason of his gift shall be bound to Warranty during his own life The Husband doth alien his Wives Lands with Warranty Stat. de Bigamus 4 E. 1.6 If a man alieneth the Land he holdeth by the Courtesie of England his Sonne shall not be barred by the Deed of his Father from whom no Heritage to him descended to demand and recover by Writ Mortdauncester of the seisin of h s Mother although it be mentioned in the Deed that his Father did bind him and his Heirs to Warranty And if any Heritage descend to him of his Fathers side then he shall be barred for the value of the Heritage that is to him descended And if in such case Assets after the death of his Father any Inheritance descend to him by the same Father then shall the Tenant recover against him of the Seisin of his Mother by a Judiciall Writ that shall issue out of the Rolles of the Justices before whom the Plea was pleaded to resummon his Warranty as before hath been done in like Cases where the Heir of the Warrantor cometh into the Court saying nought descended from him upon whose Deed he is vouched And in like manner the Issue of the Sonne shall recover by Writ of Cosenage Ayel and Besaiel Likewise and in like manner the Heir of the Wife shall not be barred after the death of his Father and Mother to demand by acttion the Inheritance of his Mother by Writ of Entry which his Father did Alien in the time of his Mother whereof no Fine is leavied in the Kings Court. Gui in vita Glouc. 6 E. 1.3 FINIS
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
suffereth the husband of such a wife to receive and keep still all his wives Land that she had either in fee-simple or fee-taile so long as he liveth and this is by the curtesie and urbanity of England for this thing is used in none other Country nor Region But in this it is required that the Child be vitall that is to say be born and brought forth into this world alive and therefore the common saying is and hath been that unless the Child be heard cry the Father shall not be Tenant by the courtesie for the only proof and argument of life in an Infant born is the vagite and crying Ye shall furthermore understand that unless the husband be in actuall and reall possession of his wives Lands and seized of them in her right he shall not be Tenant by the courtesie after her death And therefore if Lands descend to a mans Wife so that she is Tenant in the Law and to every mans Actions yet if the Husband have not made an actuall entrie during coverture and matrimony between them he shall not be Tenant by the courtesie for it shall be reputed and judged his folly and negligence that he would not enter in her life time Otherwise it is of Advowsons Rents Commons and such other things which forthwith when they descend be in man or in a woman without any entrie or further ceremonie in Law Note That if a Tenant by the courtesie of England will suffer or make any waste in the Lands or Tenements that he so holdeth he is punishable therefore by Action of Waste brought by him in the reversion Also it is to be known That of things that be in suspense a man shall not be Tenant by the courtesie and therefore if a man be Tenant in fee-simple of certain Land and doth intermarry with a woman that is the Seignioress or Lady of the same and hath issue by her and she dieth yet shall he not be Tenant by the curtesie of the Lordship or Seigniory because himself is Tenant of the Land and therefore the Lordship is suspended for the time for a man cannot be both Lord and Tenant of one thing but if he had not been Tenant of Land he should have had the Lordship after the death of his wife by the curtesie of England very well Also note That of a right only a man shall not be Tenant by the curtesie as if a woman sole seized in fee of Lands or Tenements be disseized and after take a husband and they have issue and she die before any reentrie be made the husband shall not be Tenant by the curtesie Note further That of a reversion a man shall not be Tenant by the curtesie as if a woman sole seized of Land in fee make a Lease to S. for terme of life after taketh a husband and they have issue and she die living the Lessee for terme of life the husband shall not be Tenant by the curtesie CHAP. XI Of Tenant in Dower TEnant in Dower is she that hath been married to a husband that was during the matrimony between them seized of Lands or Tenements in fee-simple or fee-taile which is now dead and she seized of the third part of her husbands said Lands for terme of her life for by the Common Law of the Land Dower at the Common Law if the husband be at any time during the coverture seized lawfully whether it be by purchase or by discent either in fee or in fee-taile and die his wife shall be endowed by the course of the Common Law of the third foot Dower by custome and in some places by an ancient custome she shall be endowed of the Moitie yea and though the husband were never seized actually during the coverture yet if the Lands be cast upon him by the Law so that the Law calleth him Tenant to every mans Action it sufficeth the woman to demand her dower for it were unreasonable that the negligence and slackness of entring of the husband should hurt the wives Title Otherwise it is as it is said before of Tenant by the courtesie Tenant by the Courtesie for if Lands descend to a woman covert and the husband for slothfullness or negligence doth not enter in his wives life he shall not be Tenant by the courtesie for by all Laws the wife oweth obedience and subjection to her husband and therefore she cannot compel him to enter but when Lands discend to the wife the husband only hath power to enter at his pleasure And ye shall understand that unless the wife be above the age of Nine years at the time of her husbands death she shall not be endowed by the Common Law But it is to be known A Woman shall have no Dower that a woman may by divers wayes estoppe and prejudice her self of her dower as if she commit any crime for which she is attainted of Treason Murder or felony she shall have in this case no dower notwithstanding she hath obtained her pardon Allo if after the death of her husband she taketh a Lease for terme of life of the same Lands whereof she is indowable she loseth her dower of the same Moreover if she depart from her husband and lieth in adulterie with another man and is not reconciled again to her husband without cohersion of the Ecclesiasticall power she loseth her dower after her husbands death she shall be also barred of her dower if she will withhold from the heir the Charters and Evidence concerning that Land whereof she asketh dower but none other save the Heir can withhold dower for this cause No Dower It ought not to be unknown also of what things she may demand dower and of what things not of Lands Messuages Advowsons Rent-charge Rent-services or Seigniories in gross or otherwise of Villains of Commons certain of Estovers certain of Milles and Offices or of the profit of them she is dowable but of Commons and Estovers saus number also of Annuities of Homages of things of Pleasure as of Service of paiment of Roses and semblable she shall not be endowed Note There be yet two other kinds of Dower Dowment ex assensu Patris the one is called Dowment ex assensu patris that is to say by the assent of the father and the other is called Dowment de la plus beale part that is to say of the fairest part Dowment ex assensu patris is when the Father is seized of Lands in fee simple and his Sonne which is Heir apparant indoweth his Wife at the Church door when he is espoused of parcel of his Fathers Lands with the assent of his Father in writing testifying the same assent if in this case her Husband die she may forthwith enter into the Land so assigned unto her without further procurement of process of Law although the Father of her said Husband be yet alive and in actuall possession of the Land but if she thus do and
take her to this endowment at the Church door she cannot have her Dower also by the Common Law of the third part of her Husbands Lands or any part or parcell of them Howbeit if she will refuse this Assignment made unto her at the Church door and demand Dower at the Common Law she may so do v ry well A man may also endow his Wife at the time of the Espousals of his own Lands the which he hath by his own possession and that Dower is called Dower ad estium Ecclesiae that is to say at the Church door Dowment ad ostium Ecclesiae Dowment de la plus beale part Dowment de la plus beale part that is to say dowment of the fairest part shall be in this case when a man is seized of Lands which he holdeth of another man by Knights-service and of other Lands which be of Socage tenure and hath Issue which is within the age of fourteen years and die and the Lord of whom the Land is holden by Knight-service entreth in the Land holden of him and the mother of the Child entreth into Socage tenure as Guardian in Socage if in this case the woman will bring a Writ of Dower against the Lord which is Guardian in Chivalry he may plead the speciall Matter and shew how she is Guardian in Socage and hath so much Land and thereupon pay the Court that she may be suffered to endow her self of so much Land being in her own custody as amounteth to the third part of the whole Lands And then the judgment shall be That the Guardian in Chivalry shall retain the Land holden of him quit from 〈◊〉 woman during the nonage of the Ward after which Judgment and Sentence given she may go and in the presence of her neighbours endow her self of the best part of that which is in her custody amounting to the third part of the whole and then is she called Tenant in Dower de la plus beale Finally ye shall understand An. 27. H. 8. That by a Statute made in the 27. year of our most dread Soveraign Lord King Henry the Eight it is enacted That where divers Persons have Estates made to them and to their Wives and to the Heirs of the Husband or to the Husband and Wife and the Heirs of their two bodies begotten or the Heirs of one of their bodies or for terme of both or one of their lives or any other Persons and their Heirs to the use of the Husbrnd and Wife or to the Wife alone for her Joynture in every such case the Woman shall not be suffered to demand any Dowrie of the residue of her Husbands Lands of whom she hath Joynture against any Tenant of the Land but in case she hath no such Joynture then may she demand her â—â—wrie after the course of the Common Law Provided nevertheless that if such Women be lawfully expulsed from their Joynture or any part thereof without fraud or covin then shall they be endowed of the residue of their Husbands Lands for as much as the Lands shall amount unto out of which they were so expulsed and put forth Provided also That if Lands or Tenements be assured to any Woman after marriage for terme of life or likewise in Joynture except it be by Act of Parliament and the Wife over-live her her Husband in whose time the Joynture was made in this case the Wife may refuse the Lands so appointed unto her in Joynture and have her Dower at the Common Law of such Lands as her Husband was seized of at any time during the coverture Also if the Husband committeth Treason Murder or Felony for which he is attainted the Wife shall not have her Dower And note That if the Husband enter into Religion and is professed the Heir shall enter into the Land but the Wife getteth no Dower till the Husband dieth M. 32. E. 2. And likewise if a man seized of Land taketh a Wife that is an Alien born and dieth she shall not be endowed except she be made Denizon by Act of Parliament T. 3. H. 6. And note That where the Wife bringeth a Writ of Dower and recovereth her right she shall recover no damages but where her husband died seized of the Lands recovered CHAP. XII A division of Inheritance HItherto have I spoken of Free-holds Damages now it remaineth to treat of Inheritances not the Inheritances that be no Free-holds for they be Free-holds also but the other Estates of which I have hitherto treated be only Free-holds and of no higher nature whereas an Estate of Inheritance although it be a Free hold indeed yet it is not to be called by name sith it is after more excellent and greater Estate but ye shall understand that of Inheritances some be of more amplitude and excellent then other some be as that Inheritance which is pure simple and without limitation of what Heirs which kinde of Inheritance is called fee-simple but when I make a limitation of what Heirs then it is called fee-tayle and of which also be two sorts as hereafter more at large shall be declared now therefore the nature of fee-simple is set forth with our accustomed compendiousness CHAP. XIII Of Fee-simple FEe-simple is as I said the most ample and large Inheritance that can be in this Realm devised or invented Fee-simple it is that which a man hath to him and his Heirs simple without any further limitation for whether they be of his own body begotten or not so that they be the next of his kinne and within the degrees it sufficeth So then Tenant in fee-simple is he that hath Lands or Tenements whether it be by purchase or by descent to him and to his Heirs and Assigns for ever for if a man will purchase Lands in fee-simple he must needs have these words his Heirs in his purchase for these be the only words that make the Estate of Inheritance Therefore if Lands be given to a man for ever and no mention be made of his Heirs he hath an Estate but for terme of his life because these words his Heirs do lack Yet nevertheless if a man by his Testament doth devise Lands to another in such place or case where the custom or Law will serve so to do although he make no mention of Heirs but saith that he bequeaths to such a person such Lands to have and to hold to him and to his Assignes for evermore here an Estate of Inheritance doth passe for in Testaments the will and intent of the Testator is to be pondered and not the formall and prescript words of the Law Also these termes in the Law frank-marriage and frank almoigne that is to say free marriage and free alms do include in the words of Inheritance And therefore if I give Lands to a man with my Daughter in frank marriage without further addition or mention of Heirs this is an estate of Inheritance as shall be declared
hereafter more plenteously So likewise it is of Lands given to an House Ecclesiasticall in pure and frank alms Moreover if Land be given to a man and to his blood or unto him and to his seed he hath in both cases an estate of Inheritance for in the last he hath a fee-tayl and in the other a fee-simple for these words seed and blood and such like do imply words of Inheritance Also if Lands be given to a man and and to his Heirs males or females he hath by this gift a fee-simple because it is not expressed of what body the Issue shall come But now it is to be seen The half-blood who be said to be a mans Heirs in the Law ye shall therefore know that my Brother or Sister by the half-blood that is to wit by the Fathers side and not by the Mothers or contrariwise by the Mothers side and not by the Fathers shall never be mine Heir A Bastard shall be no Heir nor none that come of them neither my bastard can be mine Heir nor mine own naturall Father nor Mother nor Grandfather nor Grandmother can be mine Heir for it is a principle and ground of the Law A ground of the Law That Inheritance may lineally descend but ascend it cannot and therefore if I have Lands in fee-simple and die without Issue of my blood my Father cannot be my Heir but my Fathers Brother or Sister shall and then if my Unkle or Aunt die seized without Issue my Father shall have the Lands as Heir to mine Unkle and not as Heir to me for that cannot be but it may go from me to my Unkle or Aunt well enough for that is not called a lineall ascention but a collaterall descent Also ye shall understand Lineall and Collaterall descent That a lineall descent is when the descent is conveyed in the same line of the whole blood as Grandfather Father and Sonne and so down and collaterall descent is of another branch from above of the whole blood as the Grandfathers Brother or Fathers Brother and so descending And ye shall also note That by the Common Law of this Realm the eldest Sonne shall have the whole Inheritance and after him if he have no Issue the second Sonne and so forth and if I have no Sonnes but Daughters then shall all the Daughters together inherit which be called Coparteners Copartners But if I have no Issue at all neither Sonnes nor Daughters then shall my eldest Brother in heritage succeed me but if I have no Brother then my Sisters if I have any if not my Unkle by my Fathers side if the Lands be of mine own purchasing or if they descended unto me from my Father and to be short if there be none in life of my Fathers side the purchased Land shall go to my Mothers side and if there can be found no Heir neither by my Fathers side nor yet by my Mothers then shall it Escheat Escheat as they call it to the Lord of whom it was holden for every Land must needs be holden of some Lord as shall be hereafter shewed But if Lands descend unto me by my Mothers side then if I fail of Issue the Lands shall descend only to my Heirs of my Mothers side and never to mine Heirs of my Fathers side as on the contrary side if I have Lands or any Tenements by descent from my Father or his blood they shall never descend to my Heirs by my Mothers side And thus you see a great difference in this behalf Diversitie between purchased Land and Lands which descend from an Ancestour If there be three Sonnes and the middle Sonne purchase Lands and die without Issue the eldest shall have the Lands and not the youngest And it is a principle in our Law A ground of the Law That none can be mine Heir of Lands that I hold in the Fee-simple unless he be mine Heir by the whole blood that is to say both by Father and Mother for if a man have Issue two or three Sonnes by sundry Wives and the eldest purchaseth Lands in fee and dieth without Issue his half brethren I mean these that be not his Brethren both by the Fathers side and Mothers side shall not have his Land but it shall go to his Unkle Likewise if a man hath by his first Wife a Sonne and a Daughter and by his second Wife another Sonne and the Sonne by the first Wife purchaseth Lands in fee-simple and dieth without Issue the Sister-germaine that is to say both by the Fathers side and Mothers shall have the Lands by descent as Heir to her Brother and not the younger Brother for as much as the younger Brother cannot in this case be Heir of his elder Brother because he is no Brother-germane unto him Otherwise it is of Lands or other hereditaments entailed as shall be hereafter specified Also if a man be seized of Lands in fee-simple and hath Issue a Sonne and a Daughter by one Wife and after the death of his first Wife a Sonne by another Wife and dieth and the eldest Sonne entreth into the Lands and after he dieth without lawfull Issue of his body the Daughter shall have the Lands and not the youngest Sonne and yet the youngest Sonne is Heir to his Father but he is not so unto his Brother But in this case if the eldest Sonne hath not entred after the death of his Father but had died before any entrie made by him then shall not the Sister-germaine enter but the younger Brother is Heir to his Father because the eldest Brother was never in actuall possession which is requisite to the person that claimeth to be Heir collaterally But to the lineall Heirs it sufficeth that the Ancestour should have been Heir if he had lived I mean as thus a man seized of Lands and hath Issue a Sonne and a Daughter by one Wife and afterwards a Sonne by another he dieth and after his death the eldest Sonne entreth not but dieth without Issue before he can make actuall entrie here in this case his Sister shall not have the Lands as Heir to her Brother because her Brother was not in actuall possession but the younger Brother shall have them as Heir to his Father yet if the eldest Sonne in that case had left behind him Issue of his body whether it had been Sonne or Daughter this Issue notwithstanding that the Father of the Issue was never possessed either actually or in the Law shall have the Lands and shall convey his descent from his Father the cause hereof is this that the Sonne or Daughter is lineall Heir whereas the Brother Sister Unkle Aunt c. be Heirs collaterall and so ye shall observe a diversity Diversitie I call an actuall possession when a man entreth indeed into Lands which be to him descended but a possession in Law is called when Lands be descended to a person and he hath not yet really and
actually entred into them for notwithstanding that he is not in actuall possession yet he is possessed in the Law that is to say Haereditae quid sit in the eye and consideration of the Law he is deemed to be possessed for as much as he is Tenant for every mans Action that will sue for the said Lands or else assuredly there should ensue an intollerable inconvenience as we shall more copiously open in another place Ye shall furthermore understand that this word Inheritance is not only to be accommodate and applied to that which cometh by descent or succession from a mans ancestors or predecessors but also to every purchase in fee-simple or fee-tayle And note That a man can have no larger or greater estate then fee-simple CHAP. XIV Of Fee-Tayle YE shall understand that before a certain Statute called the Statute of West second West 2. Chap. 1. there was no estate tayle but all was fee-simple either purely that is to say without condition or at the least way conditionally Division as appeareth by the presence of the said Estatute but now sithence the promulgation of the Estatute divers forms of Estates Tayle have risen Fee-tayle is when it is prescribed and limited in the gift what sort of Heirs and by whom engendred shall inherit As for example I give Lands to a man and to his Heirs and go no further this is a fee-simple but if I make a limitation and adde of his body begotten now it is a fee-tayle that is to say a fee or Inheritance limited prescribed determinate or assigned So that if I give Lands to a man and to his Heirs he hath fee-simple but if I give Lands to him and to his Heirs of his body lawfully begotten he hath but a fee-tayle forasmuch as I appoint limit prescribe and express what Heirs they shall be and for lack of such Heirs the gift shall be expired and worn out and the Land shall be reverted again to the giver or his Heirs But ye must observe and Note That there be two kinds of fee-tayle there is a generall tayle and there is a speciall tayle Fee-taile generall is where Lands be given to a man and to his Heirs of his body begotten without any mentioning and expressing by what woman they are begotten And therefore if a man be Tenant in the generall tayle of Lands Generall taile and taketh a wife and hath Issue by her and she dieth and afterwards he taketh another wife of whom he hath also other Issue by her either of these Issues is inheritable to this Land entayled But if I express in the gift by what woman the Heirs shall be procreated and ingendered then it is an especiall tayle as for example to make the thing plain Especiall taile If Lands be given to a man and to his Heirs of his body lawfully begotten by Margaret his wife this is an especiall tayle for the Issue of him begotten by another woman shall never inherit by force and vertue of the tayle Likewise it is if Lands be given to a woman and to the Heirs of her body lawfully begotten and shew not by what man this is a generall tayle but if I go forward and say by such a man her husband then it is an especiall tayle Also if I give Lands to a man and to his wife and to the Heirs of their two bodies lawfully begotten this is an especiall tayle as well in the husband as in the wife Semblable it is if a man giveth Lands to another man with his Daughter or Kinswoman in frank marriage Frank-marriage this word frank marriage implieth an estate tayle speciall and in this case as well the man as the woman hath an an estate in the speciall tayle But if I give Lands to a man and to such a woman and to his Heirs that he hath begot of her here the woman hath an estate but for terme of her life and the Husband an estate in the especiall tayle and likewise it is in the womans behalf as if I give Land to a man and to his wife and to her Heirs of her body by her said Husband engendred he hath an estate but for terme of life and she an estate in the speciall tayle but in both cases if I had said to the Heirs and not to his or her Heirs then should either of them have had an estate in the speciall tayle because this word Heirs is as well referred to the one as to the other Ye shall also understand That if Lands be given to a man Descent by Heir males and to the Heirs males of his body this is an estate tayle and in this case the Heir female shall never inherit Also if a man hath Issue and dieth and Lands be given to him and to his Heirs of his body begotten this is a good estate tayle although the father were dead at the time of the gift Finally it is to be noted that of Lands which a man hath in fee-simple the possession of the Brother shall cause the Sister-germaine that is to say the Sister both by Fathers side and Mothers to inherit and in this case the Brother by the half-blood shall not inherit as heretofore was said but of Lands which be entailed Otherwise it is therefore if a man be seized of Lands in the generall tayle and hath issue by his first wife a Sonne and a Daughter and also a Sonne afterwards by another wife and dieth and the eldest Sonne entreth into the Lands and after dieth the Sister-germaine to the eldest Sonne shall not have the Land but the younger Brother of the half-blood because whosoever shall inherit Land or any other hereditaments in tayle must claim them as next and immediate Heir not to him that dieth last seized of the Lands but to him to whom the Lands were first given unto whom in the case before remembred is the Sonne and Heir and not the Daughter Thus ye shall mark a great diversity between the form of succession in the Lands of fee-simple Diversitie and the form in fee-tayle CHAP. XV. Tenant after possibility of Issue extinct WHen Lands Tenements or other Hereditaments be given to a man and to his wife and to the Heirs of their two bodies lawfully begotten if in this case either of them chance to die before they have Issue between them Dispunishable of waste he or she that overliveth is still Tenant in tayle but without possibility of any Issue that can be Heir to these Lands or hereditaments thus entayled and for this cause he or she thus over-living is called Tenant in Tayl after possibility of Issue extinct for in such a Tenant is all possibility of Issue that may be inheritable to these Lands by force of the gift in tayle utterly extinct or quenched and by his or her death the estate tayle shall expire cease and be abolished for ever and shall revert and turn again to the giver or donor from
the Law Now shall we speak somewhat of them that either joyntly or severally come to Lands Tenements or other Hereditaments by their own purchase act procurement and working and of these they that come to them by joynt title way or colour be called joyntenants but they that come by severall titles wayes or colours to Lands or Tenements be named Tenants in common So then if a man being seized of Lands or Tenements Tenants in common or other Hereditaments shall thereof enfeoff two three four or more to have and to hold to them in fee-simple fee-tayle or for terme of their lives or for terme of anothers life these persons so enfeoffed and seized be called Joyntenants also also if two or more do expell and disseize another man of any Lands or Tenements to their own behoof and use these disseizors and wrong doers are now become Joyntenants because by their own act they come joyntly to this Land but if they do disseize another man to the use only of one of them in this case they be not Joyntenants but he to whose use the disseizin is made is Tenant alone of the same and the others have nothing in the tenancy but be called aydours or coadjutors to the disseizin And ye shall understand Disseisin Survivour taketh place That a Disseizin is properly where a man entreth into any Lands or Tenements there where his entry is not lawfull and putteth out him which hath the freehold of the same And ye shall further know That the nature of Joyntenancy is that he which surviveth and overliveth the other shall have to himself alone the whole and entire tenancie according to that estate which he should have had if the joynture had been continued as for example three Joyntenants be of Lands in fee-simple and the one half hath Issue and die in this case the two which do over-live their fellow shall have the whole Lands between them and the Issue of him that is departed getteth nothing and if the second Joyntenant hath Issue also and die the third which hath overlived them both shall now have and enjoy the whole to him and to his Heirs for evermore But otherwise it is of Coheirs Diversitie which in our Law are called Parceners for if there be three such Coheirs and Parceners and before any partition made the one have Issue a Sonne or a Daughter and dieth her portion shall descend and fall to his child and shall not runne amongst the other joynt-heirs or Coparceners howbeit if such Parcener or Coheir had died without Issue then should his portion have descended to his Coheirs but how not by force of surviver or overliving which in Latine is ealled jus acrescendi but by very descent for where any of the Coheirs die without Issue who can be Heir to him or her so dying but the other Coheirs to him or her so dying or the rest of the Coheirs if there be many And like as this right of survivor or overliving holdeth place amongst Joyntenants of Lands and Tenements so in like manner it holdeth place amongst them which have joynt estate or possession with others of Chattels whether they be reall or personall as for example if a Lease of Lands or Tenements be made to many for terme of certain years the overliver or overlivers shall have the whole during the terme by force of the same Lease Joyntenants of reall and personall goods so of Chattels personall if an Horse Oxe grain or other such personall Chattell be given to many he which overliveth shall have the same alone in semblable wise it is of Debts and duties for if an Obligation be made to many for one debt and of some other Covenants and Contracts the Law is likewise so Also some Joyntenants may be which may have joynt estate and be Joyntenants for terme of their lives Joyntenants of severall Inheritances and yet have severall Inheritances as where Lands be given to two men and to the Heirs of their two bodies engendred in this case these two persons have joynt estate for terme of their two lives and yet they have severall Inheritance for if the one have Issue and die the other that surviveth shall have all by force of the survivour for terme of his life and if he that surviveth hath also Issue and die then the Issue of the one shall have the half of the Lands and the Issue of the other shall have the other half and they shall hold the Land between them in common and shall not be Joyntenants but Tenants in common Tenants in common and the cause and reason why such Donees in such cases have a joynt estate for terme of their lives is for that at the begining the Lands were given to them two which words without more saying make a joynt estate to them for terme of their lives for if a man will let Land to another by Deed or without Deed not making mention what estate he hath and of this maketh livery of seisin in this case the Lessee shall have an estate for terme of his life and if he have no livery of seisin he is Tenant at will and so forasmuch as the Lands were given unto them they have a joynt estate for terme of their lives but the cause why they have severall Inheritance is this for that they cannot by possibility have an Heir between them engendred as a man and a woman may have wherefore the Law will that their estate and their Inheritance shall be such as reason will after the form and effect of the words of the gift and that is to the Heirs that the one engendred of his body by and of his Wives and to the Heirs that the other engendreth of his body by any of his Wives so it behoveth by necessity of reason that they have severall Inheritances and in such case if the Issue of one of them after the death of them both doth die so that he hath no Issue alive of his body engendred then the Donor which gave the Land or his Heirs may enter in the half as in his reversion though the other hath Issue alive and the cause is that forasmuch as the Inheritances be severall therefore the reversion in the Law is severed and the survivour of the Issue of the other shall hold no place to have the whole and as it is said of Males in the same manner it is where Lands be given to two Females and to the Heirs of their two bodies begotten Also if Lands be given to two Survivor holdeth no place and to the Heirs of one of them this is a good contenancy and the one hath a freehold and the other hath a fee-simple and if he which hath fee-simple die he that hath the free-hold shall have the whole by the Survivor for term of his life And if these two Joyntenants joyn in a gift in the tayle to a stranger reserving a Rent to him that hath an estate
but for his life this reservation is void to make a Tenure likewise it is where Tenements be given to two and the Heirs of the body of one of them engendred the one hath a free-hold and the other fee-tayle Note Rent-charge granted by a joyntenant If two Joyntenants be seized of an estate of fee-simple and the one granteth a Rent-charge by his deed to another out of that which to him belongeth in this case during the life of the graunter the Rent-charge is good and effectuall but after his decease the Rent-charge is void as to charge the Lands for he that hath the Land by the Survivour shall hold all the Land discharged the cause is for that he that surveieth claimeth to have the Land by the Surviour and not by discent of his fellow Diversitie but otherwise it is of Parcener or Co-heirs for if there be two Parceners in fee-simple and before any partition be made the one chargeth that that to him belongeth by his deed of a Rent-charge and dieth without Issue here that which to him belongeth descendeth to the other Parcener and in this case the other Parcener shall hold the Land charged because he cometh to the half by descent as heir Also if there be two Joyntenants in fee-simple within one Borough where the Lands and Tenements within the same Borough be devisable by Testament If the one of the said Joyntenants devise that which to him belongeth by Testament and die Divise by Testament this devise and legation is void And the cause is for that no devise may take effect till after the death of the Testator which bequeathed and devised the same and by his death all the Land incontinent cometh by the Law to his fellow that Surviveth by the Survivor which neither claimeth nor hath any thing in the Land by the devise but in his own right by the Survivor after the course of the Law and for this cause such a devise is void But otherwise it is of Parceners A ground of the Law seized of Tenements devisable in such case of devise for the cause above remembred and it is commonly said that every Joyntenant is seized of the Land that he holdeth joyntly per my et per tont that is throughout and by all and this is as much to say that he is seized by every parcell and by all which saying is true for in every parcell and part and throughout all the Lands and Tenements he is joyntly seized with his fellow and therefore if the one Joyntenant make a Feofment to his companion that is void because he can make no Livery of seizin to him Diversity Also if two joyntenants be seized of certain Lands in fee-simple and the one letteth that that to him belongeth to a stranger for the term of Fourty years and dyeth within the term in this case after his death the Lessee may enter and ocupy the half to him letten during the said Term though the Lessee never had possession of it in the life of the Lessour by force of the Lease Diversity between a grant of a Rent and Lease and the difference between the case of the grant of a Rent-charge and this case is this that in the grant of Rent-charge by a joyntenant the Lands or Tenements abide alway as they were afore without that that any hath right to have parcell of the Tenements but themselves and the Tenements abide in such pitty as they were before the Charge but where a Lease is made by a Joyntenant to another for term of years incontinent by force of the Lease the Lessee hath right in the same Land that is to say of all that that to his Lessour belongeth by force of the same Lease during his term and if the Lessor in this case die the other joyntenant shall have the Rent or Term during the said Term because the reversion is come to him by Survivor Finally if a joynt estate be made of Land to the Husband and Wife and to the third person in this case the Husband and the Wife have not in the Law in their right but the half and the third person shall have as much as the Husband and the Wife have that is to say the other half and the cause is for that the Husband and Wife be but as one person in the eye of the Law and it is here in like case as if an estate be made to two joynt-Tenants where the one hath by force of the Joynture the one half and the other the other half in semblable wise it is where an estate is made to the Husband and Wife and to other two men in this case the Husband and the Wife have not but the third part and the other two men the other two parts Also if two or three together disseiseth another of Lands and Tenements to their own uses then such disseisors be called Joyntenants More shall be said of this matter touching Joyntenants in the next Chapter CHAP. XVIII Tenants in Common TEnants is Common as I said before be they that have Lands or Tenements in fee-simple fee-tayle or for term of life which have such Lands and Tenements by severall Titles and not by one joynt Title and none of them knoweth that which is severall to him and in this case they ought by the Law before partition made between them to occupy such Lands and Tenements in common and undevided and to take the profits in Common and because they come to such Lands and Tenements by severall Titles and not by one self joynt Title and their ocupation and possession in the same is among them in Common they be called Tenants in Common or Tenants pro indiviso as for example If a man Enfeoff two Joyntenants in fee-simple and the one of them alieneth that that to him belongeth to another in fee now the other Joyntenant and he to whom the Alienation was made be Tenants in Common for that they be seized of such Tenements by severall Titles for the one cometh to the one half by the Feoffment of the Joyntenant and the other hath the other half by force of the first Feoffment made to him and to his first fellow and so they be in by severall Titles and by severall Feofments And it is to wit Diffinition of fee only that when it is said in any Book that a man is seized in fee without more saying or addition it shall be understood fee-simple for it shall not be understood by such a word in fee that a man is seized in fee-tayle except there be put in it such addition in tayle Also if three joyntenants be Joyntenants and the one of them alieneth that which unto him belongeth to another in fee in this case the alience is Tenant in Common with the other two Joyntenants But yet the other two Joyntenants be seized of the two parts Joyntly and of these two parts the Survivor between them holdeth place
Also if there be two Joyntenants in fee and the one giveth that that unto him belongeth to another in the tayle the Donee and the other Joyntenant be Tenants in Common but if the Lands be given to two men and to the Heirs of their two bodies engendred the Donees have a joynt estate for term of their lives and if each of them have Issue and dye their Issues shall hold in Common Also if Lands be given to two men to have and to hold the one half to the one and to his Heirs and the other half to the other and to his Heirs they be Tenants in Common Also if a man seized of certain Lands enfeoffeth another in the half of the same Land without any speech of assignement or limitation of the same half in severalty at the time of the Feofment then the Feoffee and the Feoffour shall hold their parts of the Land in Common And as it is of Tenants in Common of Lands or Tenements in fee-simple fee-tayle even so it is of Tenant for term of life Therefore if two joyntenants be in fee Joyntenants and the one letteth to a man that that unto him belongeth for term of life and the other Joyntenant letteth that which to him belongeth to another for terme of life also these two Lessees be Tenants in common for terme of their lives Also if a man let Lands to two men for terme of life and he to whom the one granteth all his estate to another then that other Tenant for terme of life and he to whom the grant is made shall be Tenants in common during the time that both the Lessees be alive Note If there be two Joyntenants in fee and that one letteth that that unto him belongeth to another for terme of life the Tenant for terme of life during his life and the other Tenant that did not let be Tenants in common And upon this Case a Question may arise as thus Let the Case be that the Lessour hath Issue and dieth living the other Joyntenant his fellow and living the Tenant for terme of life the Question is Question Whether the Reversion of the half that the Lessour hath shall descend to the Issue of the Lessour or whether the other Joyntenant shall have it by the survivour or no And some have said that the other Joyntenant shall have the Reversion by the survivour forasmuch as when the Joyntenants were joyntly seized in fee-simple though one of them made an estate of that that unto him belongeth for terme of life and though he hath severed the frank-tenement of that that to him belongeth by the Lease yet he hath not severed the fee-simple But the fee-simple abideth to them joyntly as it was before and so it seemeth unto them that the other Joyntenant which surviveth shall have the Reversion by the survivour But other have thought the contrary and this is their reason when one of the Joyntenants letteth that which unto him belongeth to another for terme of life by such Lease the Franktenement is severed from the Joynture so that the reversion that is dependant upon the same Frank-tenement is severed from the Joynture furthermore if the Lessour had reserved to him a yearly Rent upon the Lease the Lessour only should have the Rent which is a proof that the reversion is only in him and that the other hath nothing therein Also if the Tenant for life were impleaded and make default after default Recie the Lessour shall be only hereupon received to defend his right and not his fellow which proveth the reversion of the half to be only in the Lessour and so consequently if the Lessour die living the Lessee for terme of life the reversion shall descend to the Heirs of the Lessour and shall not come to the other Joyntenant by the survivour after these mens opinions yet it is doubtfull But in this case Quere if the Joyntenant that hath the franktenement have Issue and die living the Lessour and the Lessee then it seemeth that the Issue shall have the half in his demesne as of fee by descent forasmuch as the franktenement may not by nature of the Joynture be annexed to a reversion and it is certain that he that made the Lease was seized of the half in his demesne as of fee and that none shall have any Joynture in his franktenement so that this shall descend to his Issue If three Joyntenants be and the one releaseth by his Deed to one of his fellows all the right he hath in the Land Release then hath he to whom the Release is made the third part of the Lands by force of the Release and he and his fellow shall hold the other two parts joyntly and as to the third part that he hath by force of the Release he holdeth it with himself and his fellow in common And it is to wit that sometime a Deed of Release shall take effect to put the estate of him that made the Release in him to whom the Release is made as in the case aforesaid Also if a joynt estate be made to the Husband and Wife and to a third person and the third person releaseth his right that he hath to the Husband then hath the Husband the half which the third person had and the Wife of this hath nothing semblably if the third person had released to the Wife not naming the Husband in the Release then should the Wife have the half that the third person had and the Husband nothing of this but in the right of his Wife because such Release shall enure to put the estate in him to whom it was made of all that that belongeth to him that made the Release Again In some case a Release shall enure and serve to put all the right that a man hath that made that Release in him to whom it is made As a man being seized of certain Lands is disseized by two disseizors if the person disseized by his Deed release all his right to one of the disseizors then he to whom the Release is made shall have and hold all to him alone and put out his fellow out of the occupation of it And the cause is Disseisors for that the two disseizors were seized by wrong by them done against the Law and when one of them getteth the Release of him that hath right to enter this right resteth in him to whom the Release is made and in such plite as if he that had the right had entered and enfeoffed him of the same and the cause is for that he that before had an estate by wrong hath now by the Release a rightfull estate And in some case a Release shall enure and take effect by way of extinguishment Release by way of extinguishment and such a Release shall help the Joyntenant to whom the Release was not made as well to him to whom it is made as if a man be disseized and
on the feoffees behalf as when I infeoff you of Lands or Tenements upon Condition that you shall do such an act as to pay unto me or mine Heirs such an annuall Rent on the feoffors behalf as when I make a feoffment unto you upon Condition that if I pay or cause to be paid unto you before such a day such a summe of money then it shall be lawfull for me to enter again and retain my Lands in my former estate Tenants in Mortgage in this case he that is the feoffee is called Tenant in Mortgage which is as much to say as dead-gage and it seemeth that the cause why it is so called is forasmuch as it is doubtfull whether the feoffor will pay at the day limited and prescribed such a summe of money for the redemption of his Lands or not for if he do not his Title or interest in the Lands thus gaged and oppignorate is utterly extinct and gone without all hope of renewing Ye shall also note That if the mortgager dieth before the day of payment his Heir may redeem the Land very well even as well as his Ancestour that mortgaged the Land might have done although there be no mention made of Heirs in the writing Also if when the money is lawfully by the mortgager or his Heir tendered and profered and the Lessour refuseth to receive the same the feoffour or his Heir may enter and then hath the feoffee no remedy for his money at the Common Law Ye shall understand also that some conditions be utterly void in the Law and of none efficacy Conditions void vertue or strength As if a feoffment be made of Lands in fee-simple upon condition that the feoffee shall not alien or put away the same to none other this condition I say is void because the feoffee is restrained of his whole power that the Law giveth in such case unto him and with power and liberty is manner included in every feoffment yet I may abridg him of part of his power as to condition with him that he shall not alien the Lands to such a person or such but of Gifts in Tayl otherwise it is for if I give Lands to a man and to the Heirs of his body lawfully begotten Gift in Tayl upon Condition upon condition that he nor his Heirs shall alien the Lands to none other person this Condition is good and effectuall in the Law and if he or his Heirs contrary to the Condition do alien them then the giver or his Heirs may very well enter and retain the Lands for ever because this Condition shall stand with the forenamed Statute of Westminster the second which prohibiteth such alienations to be made Hitherunto have I spoken of Conditions in Deed now will I shew what be Conditions in Law that be annexed to any Estates Know ye therefore Estates upon conditions in Law that if the Office of a Parker Steward Constable Bedle or Baliff or such like Office be granted to a man for term of his life though there be no condition at all mentioned in the grant yet the Law speaketh of a condition in this case which is that if the party to whom such Office is given shall not execute all points appertaining unto his Office accordingly by himself or his Lawfull Deputy it shall be Lawfull for the grantor to Enter and discharge him of his Office and this condition is called a condition in Law There be also three other manner of Estates upon Condition that is to say Conditions against the Law Conditions Depugnant and Conditions Impossible First Estates upon Conditions against the Law be as if a man make a Feoffment gift grant or Lease upon Condition that if the Feoffors Donours Grantours or Lessours kill J. S. which is not the Kings enemy or burn his house that then it shall be Lawfull to the Feoffors Donours c. To re-enter this Condition is void and the Estate good And like Law is Conditions against the Land if such Conditions be to be performed of the part of the Feoffee Grantee c. But if it be that a Lease for term of years be made of Land upon Condition that if the Lessees kill J. S. that then he shall have fee simple although that he in his case perform the Condition his Estate is nothing thereby inlarged because the Condition is against the Law And ye shall understand that where an Obligation is Indorsed with a Condition which is against the Law both the Obligation Conditions Repugnant and also the Condition be clearly void in the Law Estates upon Conditions Repugnant be as if a Feoffment or a gift in tayle be made upon Condition that the Feoffee or Donee shall take no profit or shall do no wast and such other like such Conditions be void and the State good and effectuall in the Law notwithstanding Also if a Lease be made for term of life upon Condition that he shall not doe Fealty that is as a void Condition Likewise it is if a man that hath nothing in the Manour of Sale granteth a Rent-charge going out of the same upon Condition that the person shall not be charged this grant is good and the Condition is void Estates upon Conditions impossible be as if a Feoffment be made upon Condition that if the Feoffee goeth not through the Sea on foot to Calice in one day Conditions Imposble then it shall be Lawfull to the Feoffor to re-enter this is a frustrate and void Condition and yet the estate is good Like Law is of a Lease made for term of years c. or an Obligation with a Condition impossible ut supra the Obligation or Lease is good and the Condition void to all purposses CHAP. XXII An Act how strangers shall take advantage of Conditions made An. 32. H. 8. IT is enacted that as well persons which have or shall have any gift or grant of the King by his Letters Patents of any Lands Personages Titles or other Hereditaments or any reversion of the same which did belong to any Monastry or other Ecclesiasticall House disolved or otherwise come into the Kings hands since the fourth day of February in the twenty eight Year of our Sovereign Lord King Henry the Eight or which at any time heretofore did belong to any other Person and after come into the Kings hands as also all other Persons being Graunters or Assigns to the King or to any other Person their Heirs Executors Successors and Assigns shall have like advantage against the Farmours and their Executor Administrators and Assigns by Entry for Non-Payment of the Rent or for doing wast or other forfeiture and also shall have the same advantage by Action only of not performing of other Conditions Covenants or Agreements contained in the Indentures of their Leases or Grants against the said Farmours and Grantees their Executors Administrators and Assigns as the said Lessors or Granters themselves might have had at any time
and again Mutually and on the other side the said Farmours and Grantees for term of years life or lives their Executors Administratours and Assigns shall have like advantage against them for any Condition Covenant and Agreement contained in the said Indenture as they might have had against their said Lessors and Granters their Heirs Successors all benefits and advantage of recoveries in value by reason of any warranty of deed or in Law by voucher or otherwise only except Provided that this Act shall not extend to charge any Person for Breach of any Covenant or Condition comprised in any such writing but for such as shall be broken and not performed after the first day of September in the 32. Year of this King and not before CHAP. XXIII Livery of Seisin and Atturnement IN all Feoffments gifts in tayle Leases for term of anothers life of Lands or Tenements there can be no Alteration Transmutation of Possession by the Antient Laws of this Realme unless there be a certain Ceremony Adhibited and Solemnized in the presence and sight of neighbours or others which Ceremony is called Livery of Seisin And ye shall understand The manner Livery of Seisin that this Ceremony of Livery of Seisin is done when the Feoffour Donour Lessour or other Deputy come with the Neighbours Solemnly to the Lands or Tenements and they put the Feoffe Donee or Lessee in possession of the said Lands or Tenements by delivering to him a Clod of Earth or the ring of the Door or some other thing in the name of Seisin and for this self cause this Ceremony of Law is called Livery of Seisin that is to say a Tradition or giving of Seisin But this Ceremony is not required in Leases for term of years Diversity between Possession and Seisin or in Leases at will For as much as the Lessour in such Lease remaineth still seized and the Lessee only hath possession without any Livery of Seisin and therefore the terms of the Law be that such a man is possessed whereas in Feoffments gifts in tayle and Leases for life he is called seized Wherefore if a Feoffment or Lease for life be made of Lands or Tenements and before that the Livery of a Seisin be made the Feoffour dieth the Heir of the Feoffour shall have Lands Per summum jus that is to say by the Rigour of the Law Notwithstanding that the Feoffee have paid to the Feoffour the price of the Land and although the Feoffee be in possession but otherwise it is of a Lease for term of Years A like Ceremonie is used Atturnment when Rent-charge Rent-service Rent in gross a Villain in gross common in gross common for Beasts certain Estovers and such other things as pass by way of grant be granted for it is no full and perfect grant till it be consignat and sealed as it were with the Ceremonie of Atturnment this Atturnment is nothing else but when the Tenant of Land of which a Rent granted is granted or out of which a Rent is granted doth make some evident signification and token that he accepteth the person to whom the grant is made to be in the same respect unto him that the granter was as for an example if the Tenant of the Land after he have heard of the grant cometh to the grantee that is to wit to the person to whom the grant was made and say in this wise or in like effect I agree unto the Grant made unto you by such a man How attu nment shall be made or I am well apaid and contented of the Grant that such a man hath made unto you but the most usuall frequent form of Atturnment is to say Sr I atturn unto you by force of the said Grant or I become your Tenant or to deliver unto the grantee a Peny or a Halfpeny by way of atturnement If a man maketh first one grant to one person and after another to another person that grant shall stand to which the Tenant will atturn although it be to the later grant And ye shall note That if a man be seized of a Mannour which is parcell in demean and parcell in service and doth alien the same Mannour to another unless the Tenant of the Mannor do atturn the Service shall not pass only Tenants at will excepted for it needeth not to cause them to atturn Note furthermore Diversity there is a great difference between giving a Peny in name of Seisin and giving by way of Atturnement for when it is given by the Tenant to the Grantee in the name of Seisin it doth not only imply an Atturnment Assize but also it giveth him such a seizin that if the Rent afterward were behind and not paid he may now upon the seisin of the Peny after a lawfull distress taken and after Rescous made Writ of Rescous bring an Assize of Novel Disseizin whereas if it were given only by way of Atturnement he could not bring the Assize but his Writ of Rescous only if Rescous were made Also ye shall understand That where Lands be deviseable by Testament by the custome of any ancient Borough or City if the reversion of any Lands be by Testament bequeathed to a man in fee and the Testator which we call the devisor dieth the devisee that is to wit he to whom the devise was made hath forthwith the reversion in him without further ceremonie of Atturnement Atturnment likewise it is if a man by testament doth bequeath a Rent-charge that he is seized of or of a Rent-service there needeth none atturnement at all If two Joyntenants of Land and the Lord granteth the services to another if one of the Joyntenants atturneth it is enough Finally If a Lease be made for terme of life the remainder to another in tayl the remainder over to the right Heir of the Tenant for terme of life in this case if the Tenant for terme of life will grant his remainder in fee to another by his deed this remainder passeth forthwith without any atturnement For if any Atturnement were requisite it should be made of the Tenant for terme of life Not Requisite which in this case is the granter himself And in vain it is that the granter should be inforced to atturn sith an atturnment is adhibited and had to none other purpose then to have the consent and agreement of the particular Tenant to the intent that it may appear that he hath notice and knowledg of this grantee but here where the particular Tenant himself is the granter an atturnement were superfluous and more then needed Note furthermore That where there is Lord and Tenant and the Tenant leaseth his Tenements to a woman for life the remainder over in fee the woman taketh a Husband and after the Lord granteth the services c. to the Husband in this case during the coverture the services be put in suspence Suspence but if the Wife die leaving the Husband
not Knights Service whereas the other is called Escuage uncertain Finally Escuage Uncertain ye shall understand that Escuage uncertain is alwaies adjudged to be Knights Service and draweth unto it Warde Marriage and Relief but Escuage certain is not Knights Service but is of the Tenure of Sucage as shall be hereafter more amply shewed CHAP. XXVI Of Warde Marriage and Relief EVery Knights-Service draweth unto it Warde Marriage and Relief wherefore it is now right expedient somewhat to entreat of them Ye shall therefore be admonished Warde that when the Tenant which holdeth his Lands by Knights-service dieth his Heir male being at that time within the age of twenty one years the Lord shall have the Warde that is to say the custody or keeping of the Lands so holden of him to his own use and profit till the Heir cometh to the full age of twenty one years For the Law here presumeth that till he cometh to his age he is not able to do such Service as is of his Tenure required Furthermore Marriage if such Heirs be unmarried at the time of the death of the Tenant then the Lord shall have also the Warde and the bestowing of the Marriage of him But if a Tenant by Knights-service dieth The full age of a woman his Heir Female being of the age of thirteen years or above then the Lord shall have the Warde neither of the Land nor yet of the Body of such an Heir and the reason hereof is because a woman of that age may have a Husband able to do Knights-service that is to say To wait upon the Kings Majesties Person when he goeth into Scotland with his Army Royal. But if such an Heir Female be within age of fourteen years and not married at the time of the death of her Ancester then the Lord shall have the Wards of the Land holden of him till such Heir Female cometh to the age of sixteen years by force of an Act of Parliament in the Statute of Westminster 1 Cap. 12. Note that there is a great diversity in the Law between the ages of Females Diversity of age and of Males for the Female hath these many ages appointed by the Law Age of a woman First At seven years of age the Lord her Father may distrein his Tenants for aid to marry her Secondly At nine years of age she is dowable Thirdly At twelve years she is able to assent to Matrimony Fourthly At fourteen years she is able to have her Land and shall be out of Warde if she be of this age at the death of her Ancester Fifthly At sixteen years she shall be out of Warde though at the death of her Ancester she was within the age of fourteen years Sixthly At twenty one years she is able to make alienations of her Lands or Tenements whereas the man hath but two ages the one at fourteen years to have his Lands holden in Socage The age of a man and to assent to Matrimony the other at twenty one to make Alienations Ye shall understand that by the Statute of Merton 6 Chap. it is enacted That if in case the Lord do marry their Ward to villains or others whereby is disparagement if such Heirs so married be within the age of fourteen years or such age that the said Warde cannot consent to the marriage then if the friends of this Heir complain and feel themselves grieved with this unmeet marriage the next of kinne to the Heir unto whom the Heritage cannot descend may enter into the Lands and put out the Lord which is Gardian in Chivalry And if the next Kins-man will not thus do another Kins man of the Infant may do it and shall take the Issues and Profits to the behoof and use of the Heir and yeeld account thereof unto him Account given when he cometh to his full age And there be divers other disparagements which be not expressed in the said Statute Divers Disparagements as if the Heir being within age of consent and in Ward be married to a decreped Person or Creeple as to one that hath but one foot or one hand or that is a deformed creature or having any horrible disease or continuall infirmity All these and such like be disparagements But here also ye shall understand that it shall be said no disparagement unless the Heir be so married when he is within age of discretion that is to say within the age of fourteen years For if he be of that age or above and assenteth to such marriage it is no disparagement neither shall the Lord for such marriage loose his Ward because it shall be reputed and assigned to the folly of the Heir being of age of discretion to consent to such marriage Now if the Lord then being a Gardian after to the Heir being his Ward a convenient marriage without disparagement and the Heir refuseth it Value of Marriage as he may at his choice and election very well do then the Lord shall have the value of the marriage of such an Heir when he cometh to his full age But yet if he marry himself being so in Ward against the will of his Gardein then he shall pay the double value Double value of Marriage by force of the said Statute of Merton before remembred And ye shall Note that if Lands holden by Knights-service One shall not be Ward living his Father descend to an Infant or Child within age from his Mother or from any of his Ancesters his Father being yet alive in this case the Lord shall not have the marriage of his Heir for during the life of his Father the Sonne shall be Ward to no man Finally it is to be known that he which is Gardian in Chivalry in right may before he hath seised the Ward grant the same either by Deed or without Deed to another man and then he to whom such a grant is made is called Gardein in Fait Now as touching Relief ye shall know that if a man holdeth his Land by Knights-service and dyeth his Heir being of full age the full age of the Male is twenty one years of the Female fourteen then the Lord of whom the Land his holden shall have of the Heir Relief Note ye that all Earls Barons or other the Kings Tenants holding of him in chief by Knights-service which die their Heir being of full age at the time of their deaths that is to say twenty one years of age they ought to pay the old Relief for their Inheritance that is the Heir or Heirs of an Earl for an whole Earldome 100l the Heir or Heirs of a Baron for an whole Barony an 100 Markes the Heir or Heirs of a Knight One 100 Shillings and he that hath less shall give less according to the old Custom of Fees Like Law is observed of all others that hold of any other Lords immediately Vt supra Also a man may hold Lands of a Lord
discontinuance but shall hold now by the vulgar and accustomed Homage CHAP. XXXI Of Liveries WHen one dieth which held of the King by Knights-service in Capite that is to say in chief Tenant in chief of the King his Heirs being within age the King as before is declared shall have the wardship and custody as well of the Lands as of the body that is to wit the marriage if he be unmarried but if the Heir be of full age at the time of the death of such ancestor yet shall the King by his Prerogative royall have primer Seisin of all the Lands Tenements Primer seisin and other Hereditaments whereof such his Tenant was seized in his demeane as of see Intruder upon the Kings possession And if such an Heir will enter into his Lands when he cometh to his full age before he sue his Livery and receive Seizin by the King no Freehold shall accrew nor grow unto him but he shall be deemed an intruder into the Kings possession yea and if he die so seized in the mean time his Wife shall have no Dowrie of such Lands wherefore it behoveth in any wise that such Heir as well male as female coming to full age before he or she enter into their Land to sue Livery the manner and form whereof according to the Act of Parliament lately promulgated and set forth I intend briefly to recite CHAP. XXXII How Heirs ought to sue their Liveries enacted 33 H. 6. Cap. 21. NO Person or Persons having Lands or Tenements about the yearly value of five Pound Writ Diem clausit extremum shall have any Livery before Inquisition or Office found before the Eschetor or other Commissioner by virtue of the Kings Writ of Diem clausit extremum or Commission directed out of the Chancery or other Courts having authority to make such a Writ or Commission which shall not pass out of the same but by Warrant or Bill assigned and subscribed by the Master of Wards or Liveries the Surveyor Atturney and recoverer of the said Court or three two or one of them to be directed and delivered to the Chancellor of England or to any other Chancellor or Officer having power to awarde such Writs and for the writing and sealing of the same shall be paid of the accustomed Fees But if the Land exceed not the said yearly value of five Pounds then they shall pay for the Seals of every such Writ or mission eight Pence and for the Comwriting six Pence and not above And the Inquisitions and Offices hereupon found shall be returned by the said Escheters or Commissioners into the same Court from whence the Writ or Commission was awarded which done the Clerks of the Petty-bogg shall receive the same Offices and and make a Transcript thereof to the Master of the Wards and Liveries And then the said Master and the Surveyor Atturney and generall Receiver or three of them whereof the Master or Surveyor to be one shall Covenant and Indent with such Persons for their Livery of the Castles Mannours Lordships Lands Tenements and Hereditaments comprized or not comprized in such Offices and shall make and set a rate and price of the same and appoint the daies of payment thereof by Obligation to be taken for the same to the King And every Bill for any speciall or generall Livery assigned by the hands of the said Master Surveyor Atturney Receiver or three of them whereof the Master or Surveyor to be one shall be Warrant sufficient to the Lord Chancellor or other Officer having power to pass Liveries under any of the Kings Seals accordingly In which case the Clerks of the Petty-bogge or other Clerks by whom the Liveries be written shall receive as well for themselves as for other such Fees as hath been accustomed Item Generall Livery Every person may sue at his pleasure a generall Livery for any Mannours Lands Tenements Rents Reversions Remainders or other Hereditaments whereof the clearly yearly value shall not exceed twenty Pounds provided that an Office be thereof found and a Warrant first obtained of the said Master and others as is aforesaid And where such generall Livery is sued if the Lands exceed the yearly value of five Pounds they shall pay for the Seal twenty Shillings four Pence and all other Fees accustomed as afterwards shall be declared But if they exceed not the yearly value of five pound they shall pay but these Fees following that is to say for the Seal of the Livery twelve Pence to the Clerks of the Petty-bogge for the writing and the inrolling twenty Pence for the respect of the Homage in the Hanapar eight Pence to the Lord great Chamberlaine twenty Pence to the Master of the Rolles twenty Pence and the Clerk of the Liveries for the Warrant and Inrolling of the Livery twenty Pence Item Respect of Homage No person or persons shall pay in the Exchequer or any other Rents for the respect of Homage for any Lands or Hereditaments not exceeding the yearly value of five Pound above eight Pence and for the entering thereof and Warrant of Atturney above four Pence And the value of such Lands and He-Hereditaments not exceeding the yearly value of twenty Pound shall be taken as it is limited in the Offices founden thereof except by the examinations and Certificate of the said Master Surveyor Atturney and Receiver or three of them It shall otherwise appear and be declared in any of the Kings Courts Also no Eschetor shall sit only by virtue of his Office for the inquiry of the Tenure Title or value of any Lands or other Hereditaments holden of the King being of the yearly value of five Pounds Paines of forfeit or above without the Kings Writ to him directed upon pain to forfeit five Pound for every time he shall so do neither shall he take for the finding of any Office of Lands Fees of Office not exceeding the yearly value of five Pound above fifteen Shillings That is to say six Shillings eight Pence for his own Fee and three Shillings four Pence for the writing of the Office and for the Charges of the Jury three Shillings and for the Officers that shall receive the Offices in any Court of Record two Shillings upon pain that the Eschetor doing otherwise shall for every time forfeit five Pound And upon like pain the Officers of every Court of Record where such Inquisitions shall be returned being offered unto them within one Moneth next after the finding thereof shall receive them the one Moity of all with forfeitures to the King and the other to the Party that will sue for the same c. And they which hereafter shall be in case to sue Livery whose Lands and Tenements exceed not the yearly value of five Pound may lawfully sue forth that general Livery by Warrant from the said Courts as is aforesaid although none other Inquisition be thereof had nor certified paying nevertheless the Fees above
remembred Finally Every person shall sue forth his Patent for his Livery within three Moneths next after the assignment of his Bill or else his Bill assigned to be void and of none effect Hereafter ensueth the Fees Accustomed of the Generall Liveries FIrst to the Clerks of the Petty bog for the respect of Homage and Fealty the writing and inrolling fourteen Shillings two Pence to the Lord great Chamberlaine fourtie Shillings to the Master of the Rolles three Pound to the Clerks of the Liveries for writing of the Indentures and Obligations twenty Shillings besides Councell The Fees of the special Livery accustomed to be paid by these following That is to say for the signet three Pound ten Shillings for the Privy Seal thirtie Shillings for the great Seal fourty four Shillings eight Pence to the Clerks of the Petty-boggs fourty Shillings to the Master of the Liveries Clerks fourty Shillings for inrollment of the knowledge of the Indenture twelve Shillings to the Lord great Chamberlaine of England fourty Shillings for the Writ of the Allowance for the same Livery ten Shillings six Pence And note ye that sometime in speciall Cases the Fees be more and sometime less as the case and matter doth require Hitherto have we briefly touched all kinds of Knights-Service and things incident to the same Now will we with like briefness declare the other kind of Services which commonly be comprized under the generall Name of Socage For all Lands or Tenements either they be holden by Knights-Service or else by Socage Tenure or at least by the Nature of Socage Tenure which in effect is all one Wherefore first we shall define what Socage is in the proper signification which done we shall peruse the other kinds of Services which be of the nature of Socage Tenure CHAP. XXXIII Socage SOcage is properly where the Tenant is bound to come with his Yoke that is What Socage Tenure is with his Plow to Ear and Sow a parcell of the demeane Lands of his Lord which service in antient time was very common but now by the mutuall consent both of the Lord and the Tenant it is converted for the most part into a yearly Rent howbeit the name of Socage abideth still Wherefore now all that is not Knights-service is called by the Name of Socage so that if a man holdeth by Fealty only or by Fealty and Homage For all manner of service it is but Socage Tenure For Homage alone maketh not Knights-service as I have said heretofore He holdeth in effect but by Socage Gardian in Socage Now where a man holdeth his Lands by Socage and dieth his Heir being within the age of fourteen years the Lord shall not have the Ward but the next of kinne to the Heir to whom the Heritage cannot discend shall have the Title and Wardship as well of the Land as of the Heir till the Heir come to the age of fourteen years And such tutor or Gardian is called Gardian in Socage and shall render accounts to the Heir of the Issues and Profits that he hath received of the Lands during such time deducting his reasonable Costs and Expences So that he shall not have the Wardship to his own use and profit as the Lord which is Gardian in Chivalry hath And in case the Gardian in Socage dieth before he hath made his account the Heir is without remedy because no Writ of account lyeth against the Executors but for the King only Finally Ye shall understand that when a Tenant in Socage dieth Rent the Lord of whom the Land is held shall have Relief That is to say Distress the value of the Rent that is yearly due unto him of the Tenancy beside the yearly Rent So that in effect after the death of his Tenant he shall have of the Heir two Rents save that for the Relief he may distrein forthwith but for the accustomed Rent he cannot distrein till the usuall day of payment become CHAP. XXXIV Frank-Almoign TEnant in Frank-Almoign that is to say The first foundation of Frank almoigne in free Alms is where a Bishop Deane or any Ecclesiasticall Person holdeth of his Lord in pure and perpetuall Alms And such Tenure began first in old times after this manner When a man was seised in atient times of certain Lands or Tenements in his demesne as of Fee and of the same Tenements enfeoffed an Abbot and his Covent or a Pryer and his Covent or any other Person Ecclesiasticall as a Deane of a Colledge Master of an Hospitall and such like to have and to hold the same Lands to them and to their Successors for ever in pure and perpetuall Alms or in Frank-almes in these two cases the Tenements should be holden in Frank-almoigne By force of which Tenure they that hold in Frank-almoigne after this sort be bound of right before God to make Orisons and Prayer and to do other Divine Services for the Souls of their Granters and Feoffors and for the Souls of their Heirs which be dead Tenant in Frank-almoigne shall do Fealty and for the prosperous Estate of them and their Heirs whilest they be alive and because of right they be bound to this Divine service they be discharged by the Law to do any other Prophane or Corporall Service as Fealty or such like But nevertheless such as hold their Tenements in Frank-almoigne do omit and leave undone these Divine services whereunto they be bound before God the Lord cannot distrain them nor yet compell them by any other means by the course of the Common Law but the only remedy is to complain of them to their ordinary who of right ought to compell such Ecclesiasticall persons to do the Divine service due as afore said But here ye shall note Tenant by Divine Service That if a Parson of a Church or any other Ecclesiasticall Person did before the Statutes of dissolution of Abbies Monastries c. hold of the Lord by certain Divine Service to be done as to sing Mass every Friday or placebo dirige or to find a Priests to sing Mass or to distribute in Alms 100. pence to a hundred men at such a day Distress for Divine Service in all these cases if such Divine service be undone the Lord may very well Distrain because the service is here put in certain Now as I said before that if in old time a man did Enfeoffe such Ecclesiastiall Person after such sort he should hold his Lands in Frank-almoigne but at this day it is otherwise for by reason of the Estatute called Quia emptores terrarum Westmin 3. Cap. 1. No man can Alien nor grant Lands or Tenements in Fee-simple to hold of himself So that now if a man being seized of Lands in Fee-simple granteth the same by Licence to an Ecclesiasticall Person in Frank-almoigne These words Frank-almoigne be void and the Ecclesiasticall Person shall hold them immediately of the Lord of the Feoffer by the same services that
as is hereafter declared in pain to forfeit so much as he takes or demands more and likewise 40s to the party grieved to be recovered by Action of Debt wherein no essence c. shall be allowed None shall take or demand for a Mortuary any thing at all where by the Custome they have not been usually paid nor upon the death of a Woman covert a Child a Person not keeping house a Wayfaring man one not residing in the place where he happens to dye nor where the goods of the dead Person Debts deducted amount not to the value of 10. Marks nor above the Summe of 3s 4d when they exceed not 30lb nor above 6s 8d when they exceed 30lb but not 40lb nor above 10s when they amount to 40lb or above And if the Person dye in a place where he or she dwelleth not their Mortuary shall be paid in the place where they had their most abode This Act shall not abridge Spirituall Persons to receive Legacies bequeathed to them or to the Kings Altar No Mortuaries shall be paid in Wales Callais or Barwick or in any of their Marches save only in Wales and the Marches thereof where they have been accustomed to be paid and such as are there paid shall be regulated according to the order prescribed by this Act. The B P of Bangor Landaff S. Davids and S. Assaph and the Arch Deacon of Chester shall take Mortuaries of the Priests within their Jurisdiction as hath been accustomed notwithstanding his Act. Lesse Mortuaris already setled by custome shall not be increased and there also persons exempted by this Act shall not hereafter be chargeable CHAP. XLV Of Discontinuance IT is called a Discontinuance by the Laws of England whereby he hath the possession of Lands or Tenements for the time present and yet not haveing the Fee-simple in himself nor in his own right only maketh an Alienation of the same to another by reason whereof he that should have them after him and which then hath right unto them cannot enter but is driven to his remedy by way of Action in such wise that the said Lands be not utterly shifted c. gone from such Person or Persons as have right unto them but be all only discontinued for a time till the Person which after the death of such discontinuer hath right unto them do continue and bring them home again not by entry but by suit and way of action As for example a Tenant in tayl of certain Lands doth Enfeoff another in the same in Fee-simple or Fee-tayle and hath Issue and dyeth his Issue cannot enter into the Lands though he hath Title and right unto them Formedon in the descender but is but to his Action which is called a Formedon in the descender And if such Tenant in tayle which maketh such a Feoffment hath no Issue at time of his death it is yet neverthelesse a discontinuance to him which is either in the reversion or in the remainder so that neither the one nor the other can enter Formedon in the reverter or remainder but be driven to their Action he in the reversion of his Formedon in the reverter and he in the remainder to his Formedon in the remainder In like manner if a Bishop doth alien Lands Entre sine assensue Capitali which be parcell of his Bishoprick and dyeth this is a discontinuance of his Successor Forasmuch as he cannot enter but is driven to his Writ of entre sine assensu Capitali Semblable if a Deane be sold seized of Lands in the right of his Deanry and maketh such an Alienation this is a discontinuance to his Successor Also the Master of an Hospitall alieneth any Lands of his Hospitall that is a discontinuance and his Successor cannot enter but is put to his Writ Igressu sine assensu confratrum sororum De ingressu sine ascensu confratrum sororum But if a Parson or a Vicar of a Church will alien any of his glebe-Lands to another in Fee-simple or Fee-tayl and dieth or resigneth his Benefice this is no discontinuance to his Successor but he may very well enter notwithstanding such Alienation made by his Predecessor And the highest Writ that a Parson can have if his Predecessor have aliened his Glebe-Land or lost it by default or Reddition is a Juris utrum Reddition that is voluntarily yielding And furthermore note That no Tenant of the Land can by his or their Act discontinue the right of him in the Reversion unless it be by Feoffment with Livery and Seisin or else by a Release with Warranty And note That such things as pass by way of Grant by Deed without Livery and Seisin cannnot be discontinued as an Advowson Common or a Villain in Gross Reversion Rent-charge Common for Beasts certain and such other like And ye shall understand That in 32 H. 8. it was enacted that no fine Feoffment or other Act to be made or suffered by the Husband only of any Lands or Tenements being the Inheritance or the Free-hold of his Wife during the Coverture between them should be any discontinuance thereof or be prejudiciall or hurtfull to the said Wife or to her Heirs or to such as should have right title or interest to the same by the death of such Wife but that the same Wife and her Heirs and such other to whom such right should appertain after her decease may then lawfully enter in all such Lands and Tenements according to their rights and titles therein CHAP. LXVI How Recoveries by Collusion against Tenants for term of life is no Discontinuance An. 32. H. 8. WHere divers Persons seized of Lands and Hereditaments as Tenants by the Courtesie of England or otherwise only for term of life or lives have heretofore suffered other persons by agreement or covine between them had to recover the same against them in the Kings Court by reason whereof they to whom the reversion or remainder thereof have belonged have after the deaths of such Tenants been driven to their Actions for the recontinuance and obtaining the said Lands and Tenements so recovered and sometimes have been clearly disherited of the same It is enacted that all such Recoveries hereafter to be had by agreement of the Party or by covine or against any such particular Tenant of Lands or Hereditaments whereof he is or hereafter shall be seized as Tenant by the Courtesie of England Tenant in tayl after possibility of issue extinct or otherwise for term of life shall from henceforth as against such persons to whom the reversion or remainder shall then appertain and against their Heirs and Successors be clearly void Provided that this Act extend not to any person that shall by good title recover any Hereditaments without fraud or covine against any such particular Tenant by reason of any former right or title nor to avoid any recovery to be had against any such particular Tenant by the assent and agreement of those in the
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
whence it came Yet forasmuch as the Tenant after possibility of Issue had once an Inheritance in him he shall not be punished by an Action of Waste though he make never so much waste in the Lands and Tenements whereas yet in effect he is but a Tenant for terme of life But if this Tenant doth alien in fee such Lands he in the reversion may enter for the forfeiture And this for Estates at this present time shall suffice Forfeiture but to the intent that ye may the more easily comprehend all the members of the division of Possessions and Estates which men have in Lands Tenements and other Hereditaments it shall not be evill done to set forth as it were in a Table before your eyes the division thereof which is this A Figure of the Division of Possessions Possession de Frank-tenement Selon comonley Estate Dinheritance Fee simple Fee-tayl generall speciall Frank-tenement Apres possibilitie dissue extinct Curtesie Dangl ' Dower Terme de vie Terme daut vie Selon custome que poet este divide en mesme le maner come franktenement al common ley Chattell Reall Terme daus Gard de terre Tener a volunt Personal Biens moveables CHAP. XVI Of Parceners or other Coheirs HItherunto I have made a compendious and short declaration of Estates of all sorts but where I said that among Sisters there is no prerogative or preheminence concerning the inheriting of their Ancestors Lands but that they shall be all together inheritours and make as it were but one Heir it is expedient to make a further declaration and process in this behalf and to shew how and in what manner this partition shall be made But ye shall understand Division of Parceners at the Common Law and Parceners by Custome That there be besides Parceners at the Common Law which be only Sisters also Parceners by Custome which is amongst Brothers contrary to the course of the Common Law and this custome is in some places of Rent and in other places where Lands and Tenements be of the tenure of Gavelkind Ye shall therefore kow That when a man is seized of Land in fee-simple or fee tayle and hath no issue but Daughters and die and the Daughters do enter into the Lands thus descended unto them now they be called Parceners or Co-heirs Writ de partione facienda and by a Writ called de partitione facienda brought by one of them against the others they shall be constrained by the Law to suffer an equall partition to be made of the Lands between them Now partition may be made in sundry wayes one way is when they themselves do make partition between them of the whole heritage and do agree unto the same and do enter every one into her part so allotted unto her Another way is Partition in divers manners when by all their agreements and consent one common friend doth make the partition in which case the eldest Sister shall have the first election and after her the second Sister and so forth but if they agree that the eldest Sister shall make the partition and she maketh it then the eldest shall not choose first but shall suffer all her Sisters to choose before her as it is thought There is also another form of partition which is equally to divide the Lands into so many parts as there are Co-heirs or Parceners and to write every part so divided in a severall scroule of paper and so put the said scroules in a bonet or to inclose them severally in balls of wax and then the eldest Sister to choose which ball she will or to put her hand into the bonet and take a scroule and to hould her to her chance and allotment and so consequently every Sister after other And ye shall note Nota. That Partition by agreement may as well be made by nude and bare words without writing as by writing And if any of the Parceners will not suffer any partition to be made then may the other that would have partition A writ de partritone facienda purchase a Writ called De partitione facienda against them that refuse partition to compell the same to suffer partition to be made accordingly and then by the judgment of the Court the Sheriff by the serement and Oath of twelve men shall make partition between them and shall assign to each Sister her portion as he shall think good without giving any election of choice to the eldest And if two Mannors or Meases happen to descend to two Sisters and the Mannors be not of equall value then may she to whom the less Mannor or Mease is allotted have assigned unto her a Rent proportionably out of the other Mannor for the which Rent she and her Heirs may distrain of common right though they have no writing thereof Finally ye shall understand Distress of Common Right That if a man be seized of Lands in fee-simple and hath Issue two Daughters and giveth with one of his Daughters to another man that shall marry her the third or fourth part of his Land in frank-marriage and dieth if in this case the Daughter that is in this wise bestowed and advanced will have her portion of her fathers heritage she must put her Land given unto her in frank-marriage in hochpot new again Hochpot I mean she must be contented to suffer her said Lands to be commixed and mingled with the other Lands of which her Father died seized in fee-simple so that an equall division may be made of the whole or or else she shall have no part of those Lands of which her Father died seized but if her Father had made unto her a common gift in tayl or feofment in fee she should not need to put her Lands in hochpot but may very well keep and retain them still and also have as good part of the rest of the Lands of which her Father died seized as her other sister or Sisters have Frank-marriage for a gift in frank-marriage is accounted the most free and most liberall gift that can be and that gift which the Law judgeth to be only for the advancement and bestowing of the Daughter whereas feofments in fee-simple and also common gifts in tayle be accustomarily for other causes and for the advantage rather of the giver or feoffer then of the taker And if Parceners make partition of Lands being within age that partition is void And if Parceners in fee-simple make partition and the part of the one is better then the other being of full age of 21. years then the partition is good and cannot be defeated but if it be of Lands in fee-tayle the one part being better then the other that partition may be defeated by their Heirs CHAP. XVII Of Joyntenants HItherunto briefly have we spoken of Coheirs called Parceners of the the Common Law which as is heretofore declared do come to Lands and other hereditaments joyntly by the course operation and act of
the disseisour maketh a feoffment to two men in fee if the person disseized release to one of the feoffees in fee by his Deed then such Release shall inure to both the feoffees because the feoffees have their estate by the Law that is to say by the feoffment and not by wrong done to any other And in like manner if the disseizour make a Lease to a man for terme of life A Release shall inure to him in the remainder the remainder over to another in fee if the disseises will release to the Tenant for terme of life all his right this Release serveth as well to him in the remainder as the Tenant for terme of life And the cause is for that the Tenant for terme of life cometh to his estate by the course of the Law and for this cause the Lease shall inure and take effect by way of extinguishment of the right of him that hath released and by this Release the Tenant for terme of life hath no greater estate then he had before the Release made unto him And yet the right of him that released is all utterly extinct and gone wherefore for as much as such a Release cannot enlarge the estate of the Tenant for term of life it is reason that it shall serve him in the remainder Also if there be two Parceners and the one alieneth his part to another the other Parcener and the alience be Tenants in Common Furthermore Tenants in Common by Title of prescription Tenants in Common may be by Title of Prescription if that one and his Ancestors or they whose estate he hath in the half have holden in Common the same half with the other Tenant that hath the other half and with his Ancestours or them whose estate he hath as undenied time out of mind and ye shall mark that in some case Tenants in Common ought to have of their possession severall actions and in some case they shall joyn in one action Actions severall for if there be two Tenants in Common and they be disseised they ought to have against the Disseisor two Assizes and not one Assize for every one of them ought to have an Assize of his half Assize because they were seized by severall Titles but otherwise it is of Joyntenants for if there be twenty Joyntenants and they be disseised they shall have in all their names but one Assize Assize because they have but one Joynt-Title Also if there be three Joyntenants of whom the one Releaseth to one of his fellowes all the right he hath and afterward the other two be disseised of the whole in this case they shall have in both their names one of the two parts And as to the third part he to whom the Release was made ought to have hereof an Assize in his own name because as to the third part he is Tenant in Common Also as to sue Actions that touch the Realty Diversity there is a Diversity between Parceners that are in by divers discents and Tenants in Common For if a man seized of certain Lands in fee hath Issue two Daughters and die and they enter into the Lands as Co-heirs and each of them have Issue a Son and die without partition made between them so that the one half discendeth to the Son of the one Parcener and the other half to the Sonne of the other and they Enter and Occupie in Common and be disseised in this case they shall have in their two names one Assize and not two Assizes and yet the cause is though they come in by divers Discents yet they be Coheirs and Parceners Also if two Tenants in Common of certain Lands in fee give the same to another man in the tayl or let it to another for term of life yielding an annunity or certain Rent or a pound of Pepper or an Hawk or an Horse and they be seized of these services and afterward all the Rent is behinde and they Distrain for it and the Tenant maketh Rescous in this case Rescous as to the Rent and the pound of Pepper they shall have two Assizes and as to the Hawk and the Horse but one Assize and the cause why they have two Assizes as to the Rent and pound of Pepper is for that they were Tenants in Common by severall Titles and when they made a gift in the tayle for Lease of term of life saving and reserving to them the Reversion and yielding to them certain Rent This Reservation is incident to their Reversion and because their Reversion is in Common and by severall Titles even as their possession was before the Rent and other things which may be severed and which were to them reserved upon the gift or upon the Lease which be incident by the Law to the Reversion Plaint in Assize Therefore such things so severed be of the nature of the Reversion wherefore it behoveth that the Rent and the pound of Pepper which may be severed to be then in Common by severall Titles and of this they shall have two Assizes and every of them in his Assize shall make his Plaint of the half of the Rent and of the half of the pound of Pepper but of the Hawk and the Horse which cannot be severed they shall have but one Assize for it were an absurdity and thing inconvenient to make a plaint in Assize of the half of an Hawk or of the half of an Horse In like manner it is of the other Rents and services that Tenants in Common have in ground by divers Titles And ye shall understand Personall Action that concerning Actions personalls Tenants in Common ought to have them Joyntly in all their names that is to say Of trespass or of offences that touch their Tenements in Common as of breaking of their Houses breaking of their Closes and Pastures wasting and defouling of their Grass cutting of their Weeds and of Fishing in their Ponds and such other they shall recover joyntly damages because the action is in the personalty and not in the realty Damages Also if Tenants in Common make a Lease of their Tenements to another for term of years Tenants in Common shall have one Action of Debt yiedling unto them yearly a certain Rent if the Rent be behind they shall have one action of debt against the Lessee and not divers actions because the action is in the Personalty but in an Avowry for the said Rent they ought to be severed because it is in the realty as be the Assizes CHAP. XIX Of Chattells IT is to be known that as there be Tenants in Common of Lands or Tenements so there be Tenants in Common of possessions and property of Chattells as well Reall as Personall Of Reall as if a Lease be made of certain Lands to two Men for term of Twenty years and when they be thereof Possessed the one granteth that that unto him belongeth during the term to another he to whom
the Husband and his Heirs shall have the Rent of them in the remainder c. And in this case there needeth no atturnement by word because the Husband that ought to atturn accepteth the Grant of the Services the which acceptance is an atturnement in the Law CHAP. XXIV Of Service HItherunto have I briefly touched and overrun the sundry kinds and forms of Estates Now forasmuch as there is no Tenure but hath unto it some service knit and annexed it were very necessary to declare how many kinds of Services there be and what Service is due to every Tenure for the knowledg hereof ye shall understand that the principall and most common kind of service that the Tenant oweth to his Lord is called Knights-service CHAP. XXV Knights-service KNights-service includeth Homage Fealty and for the most part Escuage and whosoever holdeth his Lands by Knights-service is bound by the Laws of this Realm to do unto his Lord homage and fealty and to pay for the most part Escuage when it shall be assessed by authority of Parliament as hereafter more plainly shall be declared Homage is the most humble and reverent service that a man of free estate and condition can do for when the Tenant shall do homage to his Lord the Lord shall sit Homage and the Tenant then shall kneel down before him upon both knees holding his hands between his Lords hands and say in this wise I become your man from this day forward of life and of member and of earthly Honour How the Tenant shall do Homage and to you shall be faithfull and true and faith to you shall bear for the Lands that I claim to hold of you saving the faith that I bear unto our soveraign Lord the King And then the Lord so sitting shall kiss him But if an Ecclesiasticall person which by his order and profession hath addicted himself to the service of God in especiall What a religious Person say when she doth Homage and do homage to his Lord he shall say I do to you homage and shall be to you faithfull and true and faith to you shall bear for the Tenements that I hold of you saving the faith which I owe unto our soveraign Lord the King Also when a woman not married doth homage to her Lord What a woman shall say she shall not say I become your woman for it is not convenient that a woman should be the woman of any other then of her Husband that she shall marry but shall say even as the Ecclesiasticall person saith I do unto you homage c. And if perchance a man holdeth sundry Lands and Tenements of sundry Lords and every of them by Knights-service then in the end of his Homage making he shall say Saving the faith that I owe to our soveraign Lord the King and to mine other Lords And none is bound to do homage to the Lord unless it be such Tenant as hath in the Tenancy an estate of fee-simple or fee-tayle either in his own right or in the right of another for if a woman have Lands or Tenements in fee-simple or fee-tayle What Tenant shall do Homage which she holdeth of her Lord by Knights service and taketh an Husband and hath Issue in this case the Husband in the life of his Wife shall do homage because he hath Title to have the Lands by the Courtesie of England if he overliveth her and also he holdeth them now in his Wives right yet before Issue had between them the Homage shall be made in both their Names but if the woman dieth before any homage made in her life and the Husband keepeth still the Lands as Tenant by the Curtesie now he shall not do homage to his Lord because he hath now an estate but for terme of life Fealty is as much to say as Fidelity Fealty or faithfulness in doing whereof the Tenants shall hold his hand upon a Book and say thus How a Tenant shall do Fealty Hear you this my Lord I to you shall be faithfull and true and faith to you shall bear for the Lands and Tenements which I claim to hold of you and duly shall do to you the Customes and Services which I owe to do to you at the termes assigned as Me help God and then he shall kiss the Book but he shall not kneel as he that doth homage nor do such humble or reverent service as is before declared in Homage And ye shall observe that Homage cannot be done but to the Lord himself Diversity between Homage and Fealty whereas the Steward of the Lords Court or the Bayliff may take Fealty for the Lord. Also Tenant for term of life shall do Fealty but Homage as I said he cannot do Now as concerning Escuage that is to say The service of the Shield Ye shall understand that he that holdeth his Lands by Escuage when the King maketh a voyage Royal into Scotland for the subduing of the Scots is bound to be with the Kings Majesty by the space of twenty daies well and conveniently arrayed and appointed for the Warre And he that holdeth his Land but by the Moity of the Fee of Knights service is bound by the force of his Tenure to be with the King by space of twenty daies and so proportionably according to the rate and quantity of his Tenure But now to our institute and purpose after this Voyage Royal into Scotland in which the King goeth in Person and after his return into England again a Parliament is wont to be summoned in which shall be prescribed and assessed what every Person that held his Land by Homage and went not with the King neither by himself nor by his Deputy shall pay to his Lord in satisfaction of his not serving and according to the taxation hereof every Tenant shall pay to his immediate Lord whether it be to the King or other after the rate and portion of his Tenure If he holdeth by an whole Fee he shall pay the whole Escuage if by a Moity the half if by a fourth part of a Fee the fourth part c. And this Money thus assessed is called Scutage or Escuage for which the Lord to whom it is due may very well for the non-payment thereof distrein But here is to be noted that some Tenants by Custom used time out of mind Distress of Escuage are bound to pay but the Moity or the third part of that which shall be assessed and limited by Act of Parliament Yea Escuage Certain and the Custom is in some place that to what summe of Money soever Escuage is assessed the Tenants shall pay never but such a certain summe of Money and this kind of Escuage is called Escuage certain that is to say Where Escuage is assessed by the Parliament to a more or less summe the Tenant to pay to the Lord five Shillings and no more nor no less c. Such a Tenure is called Socage Tenure and
reversion or remainder so that such assent and agreement to appear of record in the Kings Court. CHAP. XLVII How wrongfull Diseisin is no discent in the Law Enact Anno 32. H. 8. WHere divers persons have by strength and without title entered into Lands and Tenements and wrongfully diseised and dispossessed the rightfull owners and possessors thereof and so being seized by diseisin have died seized thereof by reason of which dying seized the Parties that were so diseized and dispossessed or such other persons as before such descent might have lawfully entered into the said Lands and Tenements be thereby clearly excluded of their entry into the Land and put to their Action for their remedy and recovery thereof It is enacted that the dying seized hereafter of any such diseisour having no right or title therein shall not be deemed any such discent in the Law as to take away the entry of such persons or the Heirs which at the time of the same discent had good title of entry into the same Except that such diseisor had the peaceable possession of his Lands or Tenements whereof he shall so die seized by the space of five years next after the diseisin by him committed without entrie or continuall claim by such as have lawfull title thereunto CHAP. LXVIII The Limitation of Prescription Enacted Anno 32. H. 82. SEisin in a Writ of Right shall be within sixty years before the teste of the same Writ Limitation of years In a Mordancester Cosenage Ayel Writ of Entry Sur diseisin Limitation of 50 years or any other possessory Action upon the possession of his Ancester or Predecessor it shall be within 50 years before the teste of the Original of any such Writ In a Writ upon the Parties own seisin or possession Limitation of 30 years it shall be within 30 years before the teste of the original of the same Writ In an Avowry or Cognizance for rent sute or services of the seisin of his Ancester Predecessor or his his own or of any other whose estate he pretends to have it shall be within 40 years befor the making such Avowry or Cognizance Avowry Formedons in reverter or remainder scire facias upon fines shall be sued within 50 years after the title or cause of Action accrued and not after The Party Demandant Plaintiff or Avowant that upon traverse or deiner by the other Party cannot prove actuall possession or seisin within the times above limitted shall be for ever after barred in all such Writs Actions Barre Avowries Cognizance Prescription c. Provided that in any of the said Actions Attaint upon false Verdict Avowries Prescriptions c. the party grieved may have an Attaint upon a false Verdict given CHAP. XLIX Of Fines FInes have their Names because they make a finall end and determination of all sutes strifes and debates between men For the due levying whereof it was enacted in the fourth year of King Henry the seventh That every Fine after the engrossing shall be proclaimed in the Court the same Term and the three next four severall daies in every Term and in the mean time all Pleas shall cease The Proclamation being so made they shall conclude all Persons both Princes and strangers except women covert persons under age in prison out of the Realm or of none sane memory being not Parties to the Fine The right and interest that any person or persons other then Parties hath or have at the time of the Fine ingrossed is saved so that they or their Heirs pursue such the r right or interest by Action or Lawfull entry within five years after the Proclamations so made so also is the right and interest saved which accrues after the ingrossing of the Fine so that the parties having the same pursue within five years after it so accrues and in this case the Action may be brought against the pernor of the profits If at the time of the Fine ingrossed or of such accruer as aforesaid the persons be covert and no parties to the Fine under age in prison out of the Realm or of none sane memory they or their Heirs have time to pursue their Actions within five years after such imperfection removed The exception that none of the parties nor any to their use had any thing in the Lands at the time of the Fine levied is saved to all persons except parties and Princes Fines at the Common Law have the same force that they had before the making of this Act and a Fine may be levied this way or at the Common Law at the pleasure of the parties ☜ Furthermore in 32. Year of _____ for the avoiding of certain doubts and ambiguities it was enacted that all Fines levied of any person or persons of full age of Lands intailed before the same Fine to themselves or to any of their Ancestors in possession reversion remainder or use shall immediately after the Fine ingressed and Proclamations made be a sufficient barre against them and their Heirs claiming only by such En-tayle and against all others claiming only to their use or to the use of any Heir of their bodies Howbeit this Act shall not barre the interest of any persons accrued by reason of any Fine levied by a Woman after her Husbands death contrary to the Statute of V. H. 7.20 A Fine levied by him who is restrained by any express Act of Parliament so to do shall be void notwithstanding this Act. This Act shall not extend to any Fine heretofore levied of Lands now in suit or heretofore Lawfully recovered in any court by Judgement or otherwise Nor to any Fine of Lands entayled by the Kings Letters-patents or any Act of Parliament the reversion thereof at the time of such fine levied being in the King CHAP. L. Of Testaments or last Wills TEstamentum in Latin is as much to say as mentis Testatio Division that is a Declaration or witnessing of a mans mind And there be two sorts of Testaments The other is called Testamentum Scriptum Written Testament that is a written Testament or last Will by writing and the other is called Testamentum Nuncupaticum The Testament Nuncupative a Testament Nuncupative which is when a man doth express by Mouth his last Will and Testament without writing by calling before him certain of his Neighbours in whose presence he doth signifie by words of his last mind and Will And this for the most part men use to do when for fear of suddenness of death they dare not abide the writing of their Will And this Will unless it be in certain cases is as strong and as sure as is a Testament or last Will put in writing and Sealed with the Seale of the Testator Also though a Testament by writing be not Sealed with the Seale of the Testator yet is the Testament good and effectuall in the Law And ye shall also mark That where a man maketh once his Testament