béefore a temporall Judge c. and the prisoner praieth his clergye that is to saye to haue hys booke which is as much as if hée desired to bée dismyssed from the Temporall Judge and to bee deliuered to the Ordinarie to purge hym selfe of the same offence This priuyledge at the firste was not soe generall in respect of the parties that should take benefite thereby as it afterwarde beecame to bée for at the beginninge beinge a popishe inuentyon the patrons thereof were very partial and wolde not that any should reape commodity thereby but their popish priestes only and such as were wythin orders as aforesayed and this arose amonge them partlye through their great pride dysdayninge to bee vnder the obedience of their natural kinges and temporall correctyon and partelye of polycie for shame lest the leude maners of their spiritualty should come to the open view examination of y e layetie as they distinguish them noe meruaile at al for w tin a fewe of the first yeres of king Henry y e secoÌ„ds raigne the clergie of the Realme had committed aboue one hundred seueral murders vppon hys subiectes as the Kinge was certenly informed besides many robberies and other outrages for remedy whereof order was taken by y e king his nobilitie and w t much a doe the Clergie consented therto y t if any clerke from thence forth committed felony or treason he should first be degraded and afterwarde deliuered to the lay power there to receiue as to his offence belonged c. at y â— last in fauor of life a thing to bee shewed indifferently towards al mankinde and for the loue of lerninge it was graunted to al men that could reade though they were neither priestes nor w tin orders And since in parliament made vpon good considerations it hath ben restreined and taken away in dyuers cases as in wilful murder Burglary and such others Clerke attaint Clerke conuict CLerkes are in ii sorts that is to say Clerkes attaint Clerkes conuict Clerke attaint is he which prayeth his clergy after iudgement gyuen vpon him of the felony and hath his clergy allowed such a Clerke may not make his purgatioÌ„ Clerke conuict is hée which prayeth his clergy before iudgment gyuen vppon him of the felony and hath hys clergy to him graunted such a clerke may make his purgation Colour COlour is a fayned matter which the defendant or tenant vseth in his barre when an accion of trespas or an assise is brought against him in which he gyueth the demandant or plaintife a shewe at the first sight that he hath good cause of accion where in troth it is no iust cause but onely a colour and face of a cause And it is vsed to the intent that the determynatyon of the accion should bée by the Judges and not by an ignorant Jury of xii men And therefore a colour ought to bée a matter in law or doubtfull to the common people as for example A. bringes an assise of land against B. and B. saith that hee hym selfe did let the same land to one C. for terme of life and afterwarde did graunt the reuersion to A. the demaundaunt and after C. the tenaunt for terme of lyfe died after whose decease A. the demaundaunt claiming the reuersion by force of that graunt whereto C. the tenaunt for life did neuer atturne entred vpoÌ„ whom B. entred against whom A. for y â— entre bringes this assise c. this is a good colour because the comoÌ„ people thinke that the land will passe by the grauÌ„t without atturnement where in déede it wil not passe c. Also in an accion of trespas colour must bée geuen and of them are an infinite number one for example In an accion of trespas for takinge away of the playntifes beastes the defendaunt saith that before y e pleintife had any thing in theÌ„ hée himselfe was possessed of theÌ„ as of his proper goodes and deliuered them to A. B. to redeliuer them to him againe when c. and A. B. gaue them vnto the plaintife the plaintife supposing the propertie to be in A. B. at y â— time of the gift tooke them and the defendant tooke them from the plaintife whereupon the plaintife bringeth y e accion this is a good colour and a good plea. Colour of office COlour of office is alwaies takeÌ„ in y e worst part signifieth an act euel done by the countenance of an office and it beareth a dissemblinge face of the right office where as the office is but auaile to the falsehod the thinge is grounded vpoÌ„ vice and the office is as a shadowe to it But reason of the office vertue of the office are taken alwayes in the best part and where the office is the iust cause of the thynge and the thynge is pursuing to the office Collusion COllusioÌ„ is where an accion is brought agaynst another by hys owne agreement if the plaintife recouer then such recouery is called by collusion and in some cases the collusion shall bée enquired of as in a Quare impedit an assise such like But in auowry nor in a writ of entrie or any accyon personall the collusion shall not bée inquyred Common law COmmon lawe is for the most part taken 3. waies first for the lawes of this Realme simple without any other lawe as customary lawe Ciuil lawe Spirituall lawe or whatsoeuurr els lawe ioyned vnto it as when it is disputed in our laws of England what ought of right to bée determyned by the comon lawe and what by the spirituall lawe or Admirales Court or such like Secondly it is taken for the kinges courtes as the kynges bench or common place onely to shewe a difference béetwéene them and y â— base courtes as Customary courts courtes barons county courtes pipouders and such like as when a plea of land is remoued out of auncient demesne because the laÌ„d is frank fée pleadable at the coÌ„mon lawe y t is to say in y â— kings court and not in auncien demesne or in any other base court Thirdly and most vsually by the comon law is vnderstoode such laws as were generally taken and holden for lawe before any statute was made to alter the same as for example Tenant for life nor for yeares were not to be punished for doinge wast at the common lawe tyll the statute of Glocester ca. 5. was made which doth giue an action of wast against them But tenant by the curteâ—y and tenaunt in dower were punishable of wast at the common law that is to say by the vsual and comon receiued laws of y â— Realme before the sayd statute of Glocester was made Comon COmmon is the right y t a maÌ„ hath to put his beastes to pasture or to vse to occupy the grouÌ„d that is not his owne And note y â— there be diuers comons that is to say comoÌ„ in grosse common appendaunt comon appurtenant comoÌ„ because of neighbourhod Common
curtesy of Englande is there where a man taketh a wife inheritrix and they haue issu a soÌ„ne or daughter and the wife dieth whether y e issue be deade or a liue y e husbande shal hold this laÌ„d for terme of his life by the curtesie of England and by y e law And in this case the fée and the right remaineth in the person of hym of whome he holdeth And for that this tenant may not alien in fée nor for terme of anothers lyfe and if he doe it is lawful to him in the reuersion to enter Fee simple ¶ To holde in fee simple is to holde to any man or woman to him and to his heires and to his assignes for euermore Franke tenure ¶ To hold in frée hold is to holde for terme of his own life or for term of an other mannes life And in this case the fée the right remaineth in y â— person of him of whom he holdeth And for that this tenaÌ„t may not alieÌ„ iÌ„ fée nor for term of life And if he doe it is well lawful to him in whom the fée and the right abydeth to enter Dower ¶ To hold in dower is where a man inherit taketh a wife and dieth y e heire shal enter and endowe the wife of y e third part of al that that was to her husbande in hys life in fée simple or fée taile and shée shall holde these landes for terme of her life as her frée holde Terme dans ¶ To holde for terme of yeres is not but chattel iÌ„ effect for no action is mayntenable against y â— termour for the recouering of the fréehold for no fréehold is in hym A lease for terme of yeres is a chattel real and the other chattel personall al goodes which are remouable are chattelles personals Mortgage ¶ To holde in morgage is to hold for a certayne terme vpon condition y â— if the lessour pay so much money at such a day that he may enter and if not that the other shall haue a fée simple or fée tayle or frée holde And in euery case where landes or tenements be géeuen to a manfor a certaine terme vpon condition of the part of the lessor for to make y â— lessee to haue more loÌ„g time or terme if the other do not as the condition is the landes and tenementes vntyll the day that the condytion should bee done bée holden in morgage as in a deade gage ¶ And note well that if land be let to a man in morgage in fée simple or in fée tayle vpon condition that if the first lessour as is before sayd pay so much money at such a day that hée may enter if not that the lessée haue the saÌ„e estate in the lands that the lessour did him graunt at y â— â—eginnynge And if before the day assygned the lessée be disseysed he shal haue assise of nouel disseisin And in case that if the lessée take a wife die lessed before the day assigned the womaÌ„ shall bée endowed And note wel that if y e lessour after the death of the lessée pay not the mony at y â— day assigned then y â— woman shal hold her dower and the issue her heritage And in case the lessour at y e day assigned pay the money to the heire of the lessée then he may put out the woman and the heire also of all the lande first let And if a man géeue landes to an other in the tail yelding to him a certaine rent by the yeare one entre for defaut of paimeÌ„t y â— donée taketh a wife and dieth seysed the woman shal bee indowed And in case that after the rent be behind the donour may enter put out the woman and the heire also And note well that if landes bée let to a man in morgage in fée vppon condition the lessée doth alien the lessour shalbée charged to pay the money to the alienée not to the seffée as it is said Burgage ¶ To holde in burgage is to holde as if the burgeis holde of the king or of another Lord lands or tenementes yeldinge to him a certain rent by y â— yere or els there where another man then burgeis holdeth of any Lord landes or tenementes in burgage yeldinge to him a certayne rent by yeare Socage ¶ To hold in socage is to hold of any lord lands or tenements yelding to him a certaine rent by y e yeare for all maner seruices And note wel that to hold by socage is not to hold by knightes seruice nor there longeth ward mariage nor reliefe But they shal double once their rent after the death of their auncestours according to that y t they be wont to pay to their Lorde And they shall not bée ouer measure greued as it appereth in the treatyse of wards and reliefes And note well y t socage may bée sayde in thrée manners that is to say Socage in free tenure Socage in auncient tenure Socage in base tenure Socage in frée tenure is to holde fréely by certaine rent for all maner of seruices as is before sayd and of that the next kms body shall haue the ward to whom the heritage may not discend til the age of xiiii yeares that is to say if the heritage come by the part of the father they of the parte of y e mother shal haue the ward coÌ„trary wise ¶ And note wel that if the gardeine in socage do make wast he shall not bée peched of wast but hée shall yelde accompt to the heire when hée shall come to his full age of xxi yeares and looke the Statute of Marlebridge cap. xvij for thys matter Socage in auncieÌ„t tenure is that where the people in auncieÌ„t demesne helde whych vse no other wrytte to haue then the writte of ryght close which shal be determined according to the custome of the mannour and the Monstrauerunt for to discharge theÌ„ wheÌ„ their Lorde distrayneth them for to do other seruice that they ought not to do And thys writ of Monstrauerunt ought to be brought against the lord those tenants hold al by one certain seruice these bée frée tenantes of auncient demesne Socage in base tenure is where a man holdeth in auncient demesne that may not haue the monstrauerunt and for that it is called y â— base tenure ¶ To holde in fée ferme is to holde in fee simple yeldinge to the lorde the value or at the least the fourth part by yere and hée oughte to doe noe other thinge but as it is coÌ„teined in the feffemeÌ„t and hee that holdeth in fée ferme ought to doe fealty and not reliefe Franke fee. ¶ To holde in franke fée is to holde in fée simple landes pledable at the coÌ„mon lawe Base fee. ¶ To holde in fée base is to holde at the wil of the Lorde Villenage ¶ To holde in pure vyllenage is to doe al that y e Lorde wyll him commaunde ¶ The
An exposition of certaine difficult and obscure words and termes of the lawes of this Realme newly set foorth and augmented both in french and English for the helpe of such younge students as are desirous to attaine the knowledge of y e same whereunto are also added the olde Tenures ¶ In aedibus Richardi Tottelli 1579. ¶ Cum priuilegio Le Table ABatement de brief on plaint fol. 1 AbatemeÌ„t en terres 1 Abbe 2 Abbettours 2 Abeyance 2 Abishersing 4 Abiuration 4 Abridgement de plaint on demaund 5 Acceptance 5 Accessories 6 Accion 7 Actions personals 7 Actions populer 7 Actions reals 8 Accord 8 Acquital 8 Acquitance 9 Additions 10 Adiournement 11 Administratour 11 Actes 11 Admirall 12 Aduowson 12 Age prier 12 Agreement 13 Aide 16 Alien 17 Alienation 17 Ambidexter 17 Amendement 18 Amercement 18 Amercement royal 18 An iour et wast 18 Annuitie 19 Appell 19 Appellant 20 Appellor 20 Appendant et appurtenant 20 Apportionment 20 Appropriations 22 Approuement 23 Arditerment 23 Arrest 23 Arrerages 24 Assets 24 Assignee 25 Attainder 26 Auerment 26 Auerpenie 26 Auncien demesne 26 Auowry 27 B ¶ Bayle 27 Baylement 28 Baylife 28 Bakberind theefe 28 Bargaine et sale 29 Barre 29 Bastarde 30 Battaile 31 Bigamy 31 Blodewit 32 Boote 32 Brodehalpeny 33 Brugbote 33 Burghbote 33 Burghbrech 33 Burgh English 33 Burglary 34 C ¶ Carâ—age 34 Cession 34 Challenge 35 Champertourâ— 36 Charge 36 Charters de terres 36 Chattels 37 Childwite 37 Chimni 37 Chose en action 37 Circuit de action 38 Claime 39 Clergie 39 Clerke attaynt et Clerke conuict 41 Colour 41 Colour de office 43 Coilusion 43 Common lcy 43 Common 45 Condition 46 Conâ—iscate biens 48 Contract 48 Conusance 49 Corody 50 Coroner 51 Corporation 52 Corps politike 53 Corruption de sangue 53 Couenant 54 Couerture 54 Couin 54 Counterplea 54 Cinque ports 55 D ¶ Damage fefants 60 Danegelde 61 Dcane et chapter 61 Declaration 61 Defendaunt 62 Demaines 62 Demaundant 62 Demy sanke ou sangue 62 Demurrer 63 Denizen 63 Deodande 64 Departure de son plea ou matter 64 Departure in despite del court 64 Deputie 64 Deuastauerunt bona testatoris 65 Deuise 66 Discent 70 Disclaimer 70 Dismes 70 Disperagement 71 Disseisin 72 Disseysin sur disscisin 72 Dissâ—ysour et disseisee 72 Distrcsse 72 Diuorce 75 Donour et donee 55 Double plee 75 Droit 76 Droit dentrie 76 Dures 76 E. ¶ Eire Justices 77 Embrasour ou Embraceour 77 Encrochment 77 Enheritance 78 Equitie 78 Escape 80 Esplces 81 Essoine 81 Estoppel 82 Estraungers 84 Estraye 84 ExcoÌ„mengement 84 Exchange 85 Execution 86 Executour 87 Extinguishment 87 Extortion 88 F. ¶ Failer de recorde 89 Fait 89 Farme on farme 95 Fee farme 96 Feoffement 96 Feffour et feffee 96 Firâ—bote 96 Fledwite 97 Flemeswite 97 Fletwite 97 Forstal 97 Forstaller 97 Fraunches roial 98 Frankemariage 98 Franktenement 98 Freshsuit 99 G. ¶ Gager de deliueraÌ„ce 100 Garde 101 Garden 101 Garnishment 102 Gauelate 103 Gauelkinde 104 Gelde 135 Grithbrech 135 H. ¶ Hangwite 135 Hariot 136 Haybote oâ— hedgebote 136 Hidage 137 Hotchpot 137 Homesoken 138 Homicide ou manslaughter 138 Hornegeld 139. Housebote 139 Hundred 139 Hundredum 140 I. ¶ Ideot 140 Illoyal assembly 141 Imparlance 141 Imprisonment 142 Insangetheâ—e 142 Information 142 Jointure 142 L. ¶ Larcâ—ny 144 Lastage 144 Lessor et lessee 144 Leuant et couchant 145 Ley gager 145 Liâ—ery de seisin 145 Lotherâ—it 148 M. ¶ Mahim 148 Mainprise 149 Manour 149 Maâ—â—ission 150 Maâ—imes 250 Maynoâ—r 151 Misprision 151 Monstrans de faits on records 152 Mortgage on morgag 153 Moâ—tâ—aine 154 Mulier 154 Murder 155 N. ¶ Negatiua preignans 155 Niefe 157 Nihil dicit 158 Nomination 158 Nonability 158 Nâ—de contraâ—t 158 O. ¶ Orâ—dâ—lfe 159 Oâ—â—faâ—gthiefe 159 Oweltie 159 Oyer de records et faits 160 P. ¶ Pape 160 Particion 161 Parties 163 Patron 163 Perquisities 163 Pleiâ—tife 164 Pledinge 164 Pound 164 Possession 165 Preamble 165 Prescription 166 Presentment 166 Pretensed drÌ„t ou title 166 Priuie ou priuitie et priuies 167 Priuiledges 168 Prochen amy 169 Protestation 170 Purchase 170 Q. ¶ Quarentine 170 Quinzim 171 R. ¶ Regratour 171 Reioynder 172 Reliefe 172 Remainder 174 Replication 175 Reprises 175 Resceit 175 Reseruation 175 Retraxit 176 Reue 176 Reuersion 177 Riot 178 Robberie 178 Rout 178 S. Sake 179 Scot 179 Shewinge 179 Socke 179 Sokemans 179 Spolâ—ation 281 Stallage 183 Suit couenant 183 Suit custome 183 Suit real 183 Suit seruice 184 T. ¶ Taxe et Tallage 184 Tenure in capitie 184 Testament 185 Them 186 Thesehoote 186 Title 186 Title de entrie 187 Tolle ou tolne 187 Tourne del viscont 189 Treasure troue 189 U. ¶ Uâ—â—we 190 Uiscount 190 Uoucher 19â— Uses 19â— Usurie 193 Utlagaries 194 W. Waise 194 Waiue 196 Waâ—wite 196 Wrecke 197 FINIS La table del Tenures SEruice de chiâ—aler 198 2 GrauÌ„d serieanty 198 3 Petit serieantie 198 4 Estâ—â—ge 199 5 Homage auncestrel 199 6 Curtesy Dengleâ— 200 7 Fee simple 200 8 Franke tenure 201 9 Dower 201 10 Terme dans 201 11 Mortgage 201 12 Burgage 203 13 Socage 203 14 Fee ferme 205 15 Franke fee 205 16 Base fee 205 17 Uillenage 205 18 Tayle 208 19 Taile apres possibility dissâ—e extinct 208 20 Fanke mariage 211 21 Franke almoigne 212 22 Elegit 213 23 Statut merchant 216 24 Rent seruice 218 25 Rent charge 219 26 Rent secke 221 27 Suit seruice 224 FINIS Termes of the lawe ¶ Abatement of a writte or plaint ABatement of a writ or plaint is when an action is brought by writte or plaint wherein is lacke of sufficient good matter or els the matter alleaged is not certeinely set downe or if the plaintife or defendant or place are misnamed or if there appeare variance betwéene the writ and the specialtie or record or that the writ or the declaration be vncerteine or for death of the playntife or defendant and for diuers other like causes which I omit of purpose for thereof alone a man might make a large discourse I determine to satisfy you â–ª good brother Nicholas as wel as I may with as muche â—reuitie as litle trouble to my selfe as I can then vppon those defaultes the defendant may pray that the writ or plaint may abate that is to say that y â— plaintifes suit against him may cease for that tyme and that he shall beginne agayne his suite and bring a newe writte or plaint if he be so disposed to doe Abatement in Lands ABatement in landes or tenementes is wheÌ„ a man dieth seised of landÊ’ or tenementes a stranger that is to saye one that hath no right entreth into the same landes or tenementes before the heire maketh his entrie this entrie of the straunger is called an abatement and he an abator But if y â— heire eÌ„ter first after the death of his auncestour and the straunger enter vppon the possession of the heire this Entry of the straunger is a disseisin to
may well pursue and if I take it presently in the hye way or in an others grouÌ„d y â— taking is lawful aswell there as vppon the land charged to whomsoeuer y â— propertie of the goodes bee Also for fines and amercemeÌ„ts which be assessed in a leete one may alway take the goodes of him that is so amerced in whose ground so euer they bée within the iurisdictyon of the court as it is sayd And when one hath takeÌ„ a distresse it beehâ—â—ueth hym to bringe it to the commen pound or els hée may kéepe it in an others ground so that hée géeue notice to the party that hée if the distresse be a quicke beast may géeue to it foode and then if the beast dye for defaut of foode hee that was dystrayned shall bee at the losse and then the other may distrayne agayne for the same rent or duitie But if hee brynge the dystresse to a holde or out of the couÌ„ty that the sherife may not make deliueraunce vppon the repleuin then the party vppon the retorne of the sherife shall haue a writ of Withernam directed to the sherife that he take as many of hys beastes or as much goodes of the other in his kéepinge tyll that he hath made deliueraÌ„ce of the first distres Also if they bee in a forfelet or Castell the Sherife may take with him the power of the County beate downe the Castel as it appeareth by y â— statute Westm 1. cap. xvii Therefore looke the statute Diuorce DIuorce so called of diuortium coÌ„minge of the verbe diuorto which signifieth to returne backe As when a maÌ„ is diuorced froÌ„ his wife hée returneth her backe home to her father or other frends or to the place from wheÌ„â—e he had her by such diuorce the mariage is defeated and vndone Donor donee DOnor is hee whych gyueth lands or tenements to an other in tayle and hée to whom the same is so gyuen is called donée Double plea. DOuble plee is where the defendaunt or tenant in any accion pleadeth a plée in the which ii matters be compreheÌ„ded and euery one by himselfe is a sufficyent barre or aunswere to the action then such a doublee plee shall not bée admitted for a plée except one depend vpon an other and in such case if he may not haue the last plée without the first plée then such a double plee shal be wel suffered Ryght RIght is where one hath a thing that was taken from an other wrongfully as by disseisin or putting out or such like And the challenge or claime that hée hath who should haue y e thing is called right Right of entrie RIght of entrie is when one seysed of land in fee is therof disseised Now the disseisée hath right to enter into y â— land may so do wheÌ„ he wyll or els hée may haue a writ of ryght against the disseisour Dures DUres is where one is kept in prison or restrained froÌ„ his liberty contrary to the order of the lawe and if such a person so beinge in dures make any especialtie or obligation by reason of such imprisonment such a déede is voyde in the lawe and in an actyon brought vppon such an especialtie hee may say that it was made by dures of imprysonment but if a man bee arrested vppon any accion at the suite of an other though the cause of the accion be not good nor trewe if hée make any obligation to a straunger béeinge in prison by such arrest yet it shall not bee sayed by dures but if hée make an obligation to hym at whose suit he was arrested to bée dyscharged of such imprisonment then it shal be said dures Eire Iustices EIre Justices or Itinerant as we call them were Justices that vsed to ryde from place to place through out the realme to administer Justice Embrasour or Embraceour EMbrasour or Embraceour is he that when a matter is in trial béetwéene party and party commeth to the Barre with one of the partyes hauinge receyued some rewarde soe to doe and speaketh in the case or priuely laboreth the Jurie or standeth there to furuey or ouerlooke theÌ„ thereby to put them in feare doubt of y â— matter But men that are learned in the laws may speake in the case for their fée but they may not labour the Jurye and if they take money soe to doe they alsoe are embrasors Encrochment ENcrochment is sayed when the Lorde hath gotten seisine of more rent or seruices of hys tonaunt then of right is due or ought to bée payed or done vnto him As if the tenaunt holde slande of hys Lorde by fealtye and ij s. rent yerelye And nowe of late tyme the Lord hath gotten seysine of thrée shillings rent or of homage or Escuage or such lyke Then thys is called an Encrochment of that rent or seruice Enheritance ENheritaunce is such estate in landes or tenements or other thinges as may be inherited by the heire whether it be of estate in fée simple or taile by discent from any of hys â–ª Auncesters or by hys owne purchase And Enheritaunce is deuided into two sortes that is to say enheritaÌ„ce corporate enheritance incorporate Enheritance corporate are mesuages landes meadowes pastures rentes and such lyke that haue substaunce in them selues and may haue contynuaunce alwayes And these ar called corporal things Enheritaunce incorporate are aduowsens villaynes wayes comons Courts fishings and such like that are or may be appendant or appurtenant to inheritances corporate Equitie EQuitie is in two sorts differing much the one from the other and are of contrarye effectes for the one doth abridge diminishe and take from y e letter of y â— law The other doth inlarge amplifie and adde therunto The first is thus defined Equitie is the correction of a lawe generally made in that part wherein it faileth which correction of y e generall wordes is much vsed in our lawe As if for example when an act of parliament is made that whoesoeuer doth such a thinge shal be a sclon and shal suffer death yet if a madde manne or an infaunt of yonge yeres that hath noe discretion doe the same they shal be no feloÌ„s nor suffer death therefore Also if a statute were made that al personnes that shal receiue or gene meate and drinke or other succour to any that shal do such a thing shal bée accessorie to hys offence and shal suffer death if they did knowe of the fact yet not withstandinge one doth such an act and commeth to his wife whoe knowing thereof doth receiue him and giues him meat and drinke shée shall not bée accessory nor felon for in the generaltie of the said wordes of y e lawe he that is mad nor y e infant nor the wife were included in meaning And thus equity doth correct y â— generality of y â— law in those cases the general words are by equitye abrydged The other equitie is defined after this sorte Equitye is when the wordes of
vntyll at the last and that chiefely in the time of Kinge Henry the first by agréement the reseruation of victuals was turned into redy mony so hitherto hath coÌ„tinued amonge most men Fee farme FEe farme is when a tenaunt holdeth of his lorde in fee simple payinge to him the value of halfe or of the third or of the fowerth part or of other part of the lande by the yere And he that holdeth by fée ferme ought to doe noe other thinge then is conteyned in the feoffement but onely fealtie for that belongeth to al kinde of tenures Feoffement FEoffement is where a maÌ„ geueth lands to an other in fee simple and deliuereth seiuÌ„n and possession orthe land that is a feffement Feoffor et feffee FEoffor is hée that infeffeth or maketh a feoffement to an other of landes or tenements in fée simple And feoffee is he who is infeffed or to whoÌ„ y â— feffement is so made Fireboote FIreboote is necessarye woode to burne which by the common lawe lessâ—e for yeares or for lyfe may take in hys grounde although it be not expressed in his leaseâ— and although it be a leas by woorde onely without writinge But yâ— sake more then is néedefull he shalbée punished in wast Fledwite FLedwite that is to be quite from amercements when an outlawed fugitiue coÌ„meth to the kinges peace of hys owne will or beinge licenced Flemeswite FLemeswit that is y â— you may haue the cattel or amercementes of your man or fugitiue Fletwie Fletwit or Flitwit that is to bée quit froÌ„ contention and conuiets and that you may haue plea therof in your court the amercements for Flit in english is Tensone in french Forstal FOrstal that is to bée quite of amercemeÌ„ts cattelles arrested w tin your lande the amercements therof coÌ„ming Forstaller FOrstaller is hée that buieth Corne Cattel or other marchaundize whatsoeuer is salable by the way as it commeth to markets faires or such like places to bée sold to the intent that he may sel the same againe at a more high and déere price in preiudice hurt of the common welth people c. The paine for such as are conuict thereof c. is the first time amercemeÌ„t and losse of y e thing so bought the secoÌ„d time iudgment of the pillory The third tyme imprysonment and RauÌ„some The fowerth time abiuratioÌ„ of the towne c. Franches Royall FRanches Royall is wher y e Quéene graÌ„ts to one and to his heires that they shal be quit of Tolle or such like Free mariage FRée mariage is when a man seised of landes in fee simple giueth it to an other man to hys wife whoe is daughter Sister or otherwyse of kinne to y e donor in frée mariage by vertue of which words they haue an estate in special tayle and shal hold the land of the bonor quit of al maner of seruices vntill the fowerth degree bée past accomptynge themselues in the first degree except fealtie which they shal doe because it is incident to all tenures sauinge frée almes And such gift may bée made as wel after mariage solemnized as before And a man may gyue landes to his sonne in frée mariage as well as to hys daughter by the opinion of master Fitzh in hys writ of Champertie H. But it appeareth otherwise in master Litt ' and in M. Brooke ti FraÌ„kmariage P. 10. And so it was holden cléere in Graies Inne in leÌ„t An â–ª 1576. 18. El. by y e right worshipful master Rhodes then Reader there Freeholde FRéehold is an estate y t a man hath in landes or tenements or profit to bée taken in fée simple taile for terme of hys owne life or for terme of an others life And vnder that there is no frée hold for hée that hath estate for yeares or holdeth at wil hath no frée hold but they are called Chattels And of fréeholds there are ii sorts that is to say fréeholde in deede fréehold in lawe Fréehold in déede is wheÌ„ a man hath entred into lands or tenemeÌ„tes and is seysed therof really actually in déede as if the father seysed of lands or tenementes in fée simple dieth and his sonne entreth into the same as heire to his father then he hath a fréehold in déed by his entry Fréehold in lawe is wheÌ„ lands or tenemeÌ„ts are disceÌ„ded to a maÌ„ he may enter into them when he will but hath not yet made his entry in deede as in the case aforesayd if the father being seysed of lands in fée simple die seysed they disceÌ„d to his sonne but y e sonne hath not yet entred into them in déede nowe before his entrie he hath a frehold in law Freshsuit FReshsuit is wheÌ„ a maÌ„ is robbed the party so robbed followeth the felon immediatly taketh him with the manner or otherwise and then bringeth an appeale against him and doth coÌ„uince him of the felony by verdict whych thing being inquired of for the Quéene and found the party robbed shall haue restitution of his goodes agame Also it may be sayd y â— the party made freshsute although he take not the theese presently but that it be halfe a yeare or a yeare after the robbery don before he bee taken ifso bée that the partie robbed do what lyeth in him by diligent inquire search to take him yea although hée bée taken by some other body yet this shalbée sayde good freshsuit And so freshsuit is wheÌ„ the lord coÌ„meth to dystreine for rent or seruice the owner of y â— beastes doth make rescous and driueth them into other ground that is not holden of the Lord and the lord followeth presently and taketh them thys called fresh suit and so in other like cases Gager of deliuerance GAger of deliueraunce is where one sueth a repleuin of goods taken but hée hath not deliuery of the goodes and the other auoweth and the plaintife sheweth y â— the def is yet seysed c. and prayeth that the def shal gage the deliueraunce then he shal put in suerty or pledges for the deliuerance a writ shal go foorth to the sherife for to redeliuer the goods c. but if a man claime propertie hée shal not gage the deliuerance Also if he say that the beasts bée dead in the pound hée shall not gage c. Also a man shal neuer gage the deliueraunce before that they be at issue or demurrer in the lawe Warde WArde is when an infant whose auncester helde by knights seruice is in the warde or keepinge of the Lorde of whom those lands were holden And if the tenaunt holde of dyurrs Lordes diuers landes the lorde of whome the land is holden by prioritie that is to saye by the more elder tenure shall haue the wardshippe of the infant but if one tenure bée as olde as the other then hée that first happeth to haue y â— warde of the bodie shall kéepe it but in that case euery lord shal
haue the warde of y â— lande y â— is holden of him but if the tenaunt holde of the Quéene in chiefe then shée by her prerogatiue shal haue the warde of the bodie and of al the land y â— is holden of her and of euery other lorde VVarden WArden most properly is he that hath y e ward shippe or kéepinge of an heire and of land holden by knights seruice or of one of them to his owne vse duringe the nonage of the heire and within that time hath the bestowinge of the bodie of the heire in mariage at his pleasure w tout disperagment And of wardens there be ij sorts namely garden in right garden in déede Garden in right is hée that by reasoÌ„ of his sâ—ry is seised of the wardship or keepinge of the lande and of the heire duringe the nonage of the heire Garden in déede is where the lorde after his seisin as aforesaid grauÌ„teth by déede or without déede the wardshippe of the lande or of the heire or of both to an other by force of which granÌ„t the grauntée is in possess â—â—â— is y e grauntée called garden in déede And this garden in déede maye graunt the heire to an other also bâ—â— that other is not preperlye called garden in déede for that is y â— graunt tée of the garden in right onely and here you may sée Brother Nicholas what misery followeth that tenure by knightes seruyce if the tenaunt die leauinge hys heire within age howe the poore childe may bée tossed and tumbled chopped and chaunged bought sold like a Jade in Smithfild y â— more is maried to whome it pleaseth his gardeÌ„ wherof ensue many euels VV arning WArninge is when an action of detynue of charters is brought agaynst one and the defendaunt saith that the charters were delyuered to hym by the playntife and by an other vpon certaine conditioÌ„s and prayeth y â— the other may be warned to plede with the pleintife whether the conditions bée perfourmed or noe and thereuppon a writte of Scire facias shal go foorth against him And that is called warninge Gauelate GAuelate is a specyall and auncient kynd of Cessauit vsed in Kent where the Custome of Gauelkind continueth whereby the tenant shal forfeit his lands and tenementes to the lord of whom they are holden if he withdrawe froÌ„ hys Lord hys due rents and seruyces after this maner as followeth If any tenant in Gauelkind withholde hys rent hys seruices of y â— tenement which he holdeth of his lord let the Lord séeke by the award of his court froÌ„ 3. wekes to 3. wéekes to find soÌ„e distresse vppon the tenement vntill the sowerth court alwaies with witnesses And if within y â— time he can find noe distresse in that tenement whereby hee may haue i 〈…〉 of his tenaunt TheÌ„ ar y â— fowerth court let it be awarded y â— hée shall take that tenement into his hand in y â— name of a distresse as if it wer an oxe or a cowe and let him kéepe it a yere a day in his hand without manuring it w tin which terme if y â— tenant come and pay his arrerages and make reasonable ameÌ„des for y â— w tholding TheÌ„ let hi haue enioy his tenemeÌ„t as his auncest ours and hée before helde it And if he do not come before the yeare and the daye past then let the Lorde goe to the next Countye Courte with the witnesses of his owne court pronounce there thys processe to haue further witnesse by the award of his court After y â— Countye court holden hée shall enter and manure in those laÌ„ds and tenements as in his owne And if the tenant come after ward and wil rehaue his tenements holde them as he did before let him make agreement with the lorde according as it is aunciently said Hath he not since any thing geuen nor hath hée not since any thing payd TheÌ„ let him pay v. pouÌ„d for his were before he be coÌ„e t'or holder againe There be some copies y â— haue the first verse thus written Nisith yelde and nisith gelde And others thus Nighesith yelde and nighesith gelde But these differ not in signification other coppyes haue it after thys sort Nigondsith selde and nigondsith geld That is to say let him ix times pay ix times repaye Gauelkinde GAuelkinde is a custome annexed goinge with lands in Kent called Gauelkind lands holdeÌ„ by auncieÌ„t Socage tenure And is thought by the skilfull in Antiquities to be called Gauelkind of Gyue all kyn that is to say to all the kyndred in one lyne according as it is vsed among the Germans froÌ„ whom wée Englyshmen and chiefely of KeÌ„t come Or els it is called Gauelkynd of gyue all kynd that is to say to all the male children for kind in dutch signifieth a male child and dyuers other like coÌ„iectures are made by them of y e name Gauelkind which I omit of purpose for shortnesse sake because that here you looke Brother Nicholas as you desired me that I should speake som what largly concerninge other more needefull matters for your purpose which you are desirous to know as touching Gauelkind lands both because you were borne in kent also are most abiding there and therefore you think to be ignorant of y â— maners or customes of your natiue coÌ„trey were a foul shaÌ„e To satisfie your request in this I haue therefore set you here downe the auncient customes of Kent as they haue very truely carefully of late bin published with some cases vpon them gathered out of those bookes that make any mencyon hereof which will I thinke coÌ„teÌ„t your desire at ful And first you must knowe that these gauelkind customes are of good antiquytie brought in hither by y â— Saxons Intes Angles Germans from whom wée Englishmen discend as is aforesaied and were by them vsed and left here and so continued in force vntill WilliaÌ„ duke of Normandy conquered al EnglaÌ„d KeÌ„t onely excepted which he had by composition and not by conquest And in this composition the valyant Kentishmen obtained a graunt of the continuation of their customes of Gauelkynde which euer sins thei haue vsed in the same countrey and thus they are as followeth The customes of Kent THese are the vsages and customes the which the coÌ„munalty of kent claimeth to haue in the tenementes of Gauelkynd and in the men of Gauelkynd allowed in Eire béefore John of Berwike and his companions the Justices in Eire in kent y â— 21. yere of king Ed. the sonne of king Henry That is to say y â— all y â— bodies of KentishmeÌ„ be frée as well as the other frée bodies of England This things hath byn since confessed to be true as it appereth in 30. E. I. in Fitzh titulo Uillenage placiâ— 46. where it is holden sufficient for a man to auoyde the obiection of bondage to say y t hys father was borne in Kent But whether it
vsage of the countrey y â— comoÌ„ law of the Realme also whych expoundeth the word Giue to meane a feoffement which not onely disalloweth of any gyft made by an infant but also punisheth the taker in trespas vnlesse he haue it by liuery from y â— infants owne â—â—ndes as appereth in 26. H. 8. 2. 9. H. 7. 24. 18. E. 4. 2. 22. H. 6. 3. and diuers other bookes 21 And if any such tenant in Gauelkind dye and haue a wife that ouerliueth him let that wife by and by bee endowed of y â— one halfe of the tenements whereof her husband died vested and seised by y â— heires if they be of age or by the Lords if y â— heires be not of age soe that she maye haue the one halfe of those landes and tenements to holde so longe as shee kéepeth her a widowe or shal bee attainted of child birth â–ª after the auncient vsage that is to say that iâ— wâ—â— she is deliuered of childe the infant be herde cry and that the hue and 〈…〉 be raysed and the countrie assembled and haue the viewe of the childe so borne and the mother then let her loose her dower wholye â–ª and otherwise not so longe as shée holdeth her a widowe whereof it is sayed in kentish He tâ—at doth wende her Let him lende her This custoÌ„e hath bene â—llowed of by the common lawe longe tyme since as may bee reade Praerog regis cap. 16. 2. H. 3. in Fitz. t' PrescriptioÌ„ 59. c. But it is a doubt whether a womaÌ„ shal be endowed by this custoÌ„e of a possession in lawe or noe for that y â— words be of y e tenements wherof her husband died vested seised which worde vested inforceth a possession in déede and not in lawe onely And therefore if landes in Gauelkynde discend to a maried man â–ª which dyeth before hée make his entry into the same Inquire whether it be y e maner to endowe his wife thereof or noe A woman shall not bée endowed by thys custome of a bailliwike or faire or such like profitte by the oppynyon of M. Parkins fo 84. because y â— wordes of this customary dower bée terres et tenements and al customes shal find a litteral and streight interpretatioÌ„ And where she is to be endowed by this custome shée may very wel be endowed of a moytie to be holden in coÌ„mon with the heire y t eÌ„ioyeth y â— other halfe c. It is a doubt whether y â— a woman entituled to dower in gauelkind may waiue her dower of the halfe after this custome bring her accioÌ„ to be eÌ„dowed of y e 3. at y e coÌ„moÌ„ lawe so exeÌ„pt her selfe froÌ„ al daunger of y e customary conditions or no SoÌ„e haue byn of opinioÌ„ y â— she is at lybertie to take y â— oÌ„e refuse y â— other at her pleasure therefore inquire thereof c. 22 And they claime also that if a man take a wife which hath inheritaunce of Gauelkinde and the wife dieth before hym let the husbande haue the one halfe of those landes and tenements whereof she dieth seised soe longe as he holdeth him a widower without doinge any strippe or wast or banishmeÌ„t whether ther were issue betwene theÌ„ or no. And if he take another wife let him lose al. 23 And if any tenement of Gauelkinde do escheat and that escheat be to any lord which holdeth by fée of Hawberke or by Serieancie by death or by gauelate as is her after sayd or be to him reÌ„dred vp by his tenaunt which before helde it of hym by quite clayme thereof made or if his escheat bee by Gauelate as is hereafter sayd let thys land remaine to y â— heires vnpartable And this is to be vnderstood where the tenant so rendringe doth reteine no seruice to himselfe but saueth neuerthelesse to the other lords their fées fermes and the rentes wherewith the aforesaid tenementes of Gauelkynde so rendred were before charged by him or them which might charge theÌ„ To hold by fée of Hawberke or by Serieancie if it bee graund Serieancie is to holde by knightes seruyce Heahbeony in SaxoÌ„ is a high defence and the Customes of NormaÌ„dy cal y â— fiefe or fée de Haubert which oweth to defende the land by ful armes y t is by horse haubert target sworde or helme And it consisteth of 300. acres of land which is y â— same as some thinke that wée called a whole Knights fée 24 And they claime also that if any tenaunt in Gauelkinde wythholde his rent and his seruices of the tenement which he holdeth of hys lorde let the lord séeke by the awarde of his courte from iij. wekes to thrée wéekes to find some distresse vppon that tenement vntil the iiij court alwaies with witnesse And if w tin that time hée can find no distresse in y â— tenemeÌ„t wherby he may haue iustice of his tenaÌ„t theÌ„ at y â— iiij court let it be awarded that hee shall take that tenement into his hande in the name of a distresse as if it were an Oxe or acowe and let him kepe it a yeare a day in his hande without manuringe it within which terme if the tenaunt come and paye his arrerages and make reasonable amendes for the withholdinge Then let him haue and enioye his tenement as his auÌ„cestors he before helde it And if he do not coÌ„e before y â— yere y e day past theÌ„ let y â— lord go to y e next County court w t the witnesses of his owne court and pronounce there this processe to haue further witnesse And by the awarde of his court after y â— couÌ„tie court holden he shal enter manure in those landes and tenementes as in his owne demeanes And if the tenaunt come afterwarde and wil rehaue his tenements and hold them as he did before let him mak agreemeÌ„t w t y e lord according as it is auÌ„cieÌ„tly said Hath he not since any thing giuen nor hath le not since any thing paid Then let him paye fiue pound for his were beefore he becoÌ„e tenant or holder againe Some copies haue the first verses thus Let him ix times pay ix times repaye This custoÌ„e is touched by the waye by master Frowike 21. H. 7. 15. by him thought to be good but whether it be at this daye put in vre enquire further 25 Also they clayme that no manne ought to make an othe vppon a booke neither by dystresse nor by the power of the lord nor his Bailife against his will w tout y â— writ of the kynge vnlesse it bée for fealtie to be done to his Lord but onely before the Coroner or such other minister of the king y t hath Royal power to enquire of trespasse coÌ„mitted against y â— Crowne of our Lord the king 26 And they clayme y â— euery KeÌ„tishman may essoine an other either in y â— kinges court or in the county or in
pleadinge is That the landes aforesayed are of the tenure and nature of Gauelkynde euen so the truith is that the present tenure onely guideth not the dyscent but that the tenure and the nature together doe gouerne it And therefore as on the one side the custome cannot attache or take holde of that which was not béefore in nature subiect to the custome that is to saye accustomably departed So on the other syde the practise of the custome longe time continued may not bee interrupted by a bare alteration of the tenure as it was holden by the Justices Annd 4. et 5. Phi et Mary as Judge Dalison hath left reported And also as it appereth by the booke 26. H. 8. 4. where it is saied that if a man seysed of Gauelkinde land holden in Socage make a gift in taile and create a tenure in knights seruice that yet this lande must descende after the custome it did before the change of the tenure Moreouer as y â— change of the tenure cannot prenaile against thys custome Soe neyther the continuance of a contrarie vsage may alter this prescription For it is holden 16. E. 3. in Fitz. ti Prescription 52. that albeit the eldest sonne only hath and that for many discents together entred into Gauelkind laÌ„d and occupied it w tout any coÌ„tradiction of the yonger brothers that yet the lande remaineth partible betwene them when soeuer they will put to their clayme Agaynst which assertion y â— which is said 10. H. 3. in Fitzh titulo Prescription 64. namely of the issue taken thus Whether the lande were parted or no is not greatly forceable For al though it be foe that the lande were neuer parted in déede yet if it remayne partible in nature it may bee parted whensouer occasion shal bée ministred And therfore euen in the fourme of pleadinge vsed at this day That the land alwaies c. was partible and parted it is playnelie taken that the worde partible onely is of substaunce and that the worde parted is but a worde of forme and not material or trauersable at al yea so inseperable is thys custome from the lande in which it obtaineth that a contrarye dyscent contynued in the case of the Crowne it selfe cannot hinder but that after such tyme as the land shall resorte agayne to a common personne the fourmer olde custome shall gouerne it As if landes of Gauelkind nature come to the quéens haÌ„ds by purchase or by Eschete as holden of her manor of Dale nowe after her death al her sonnes shall inherite and deuide them But if they come to her by forfaiture in treason or by gift in parliament soe y â— her grace is seised of theÌ„ in right of the crowne then her eldest sonne only which shalbée kinge after her shall enioye them in which case although those laÌ„ds which the eldest sonne beinge kinge did possesse doe come to his eldest sonne after him beinge kinge also and soe from one to an other by sundrye discentes yet the oppinion of Syr Anthonye Browne was 7. Elizabeth that if at any time after the same landes be grannted to a common person they shall reuolt to their former nature of Gauelkynde and be partible amongst his heires males notwithstanding that they haue runne a contrary course in dyuers the discentes of the kings before But much lesse may the vnity of possession in the Lorde frustrate the custome of Gauelkind discent as it may appere 14. H. 4. in y â— loÌ„ge Recordare abridged by master Brooke tit Auowry 46. and tit Customes 19. Nowe followeth to bée spoken howe farre this custome extendeth it selfe within this our Countrey of Kent c. It is commonly taken that the custome of Gauelkynde is generall and spreadeth it selfe throughout the whole Shire into al lands subiect by auncient tenure vnto the same such places only excepted where it is altered by act of parliament And therefore in 5. E. 4. 18. and 14. H 4. 8. it is said that the custome of Gauelkynde is as it were a common lawe in Kent And the booke 22. E. 4. 19. affirmeth that in demaunding Gauelkind land a manne shall not néede to prescribe in certeine and to shewe that the Towne Borough or Citie where the laÌ„ds bée is an Auncyent Towne Borough or Cytie and that the custome hath byn there tyme out of mynde that the landes wythin the same Towne Borough or Citie should discend to all the heires males c. But that is sufficyentlye inough to shewe the Custome at large and to say that the land lieth in Kent and that all the landes there bée of the nature of Gauelkynd For a writ of partition of lands in Gauelkynde sayth M. Littleton shall bée as generall as if the lands were at the common lawe although the declaratyon ought specyally to contayne mencion of the Custome of the Countrey Thys vnyuersalytie consydered and also the strayte bonde whereby the custome is so inseperably knit to the land as in maner nothinge but an act of parliament canne clerely disseuer them it followeth that no place Citie Towne or Borough within this shire can bée exempt from this custome although the same hath not at any tyme byn there put in vre no more then the Eldest sonne in the case before may for the like reason prescribe agaynst his youÌ„ger Bretheren c. Thus much béeyng spoken touchynge the name tenure nature generalty and order of Gauelkynde it shall nowe bee shewed of what quality the rents remaynders actyons and such other thinges of the which some bâ—e issuing out of these laÌ„ds some bée annexed vnto them and some bée raysed by reason of them shalbée And of theÌ„ some shal ensue the nature of the land and other some shal kéepe y â— same course that common lawe hath appointed And therfore if a rent be graunted in fée out of Gauelkynde land it shal discend to all the males as the land it selfe shal do as appereth in 14. H. 8. 5. 26. H. 8. 4. 4. E. 3. But if ii iointenantes of land in Gauelkynde grant a rent charge out of that land to I. S. to his heires And I. S. dieth hauinge issue ii sonnes this reÌ„t shal not disceÌ„d to both y â— sonnes of I. S. but to the heire at the common law because that the custome is in suspence during the ioynture by the opinion of the right worshipfull Christopher Yeluerton Esquire at hys readyng in Grayes Inne in lent An. 1573. So if a tenauncy bée of Gauelkynde nature yet the rent seruyce by which it is holden may discend according to the common lawe as Ald ' Chart ' in 7. E. 3. were of opinion If a remainder of Gauelkind land bée tayled to the heires males they altogether shall inherit as Fitzherbert Norwich thought 26. H. 8. 4. But that is to bée vnderstoode of a discent onely for if landes of Gauelkynde nature be leassed for life the Remaynder to the ryght heires of John Style which hath issue
fower sonnes and dieth and after the lessée for lyfe dyeth nowe the eldest sonne onely of I. Stile shall haue thys land for hée is right heire and that is a good name of purchase 37. H. 8. in master Brooke ti Done et Remaynder 42. But if the landes had byn gyuen to John Stile for lyfe the remaynder to hys next heire male thys had byn an estate taile in John Stile him selfe and then the lande should haue discended to al his sonnes in so much as in that case y e wordes next heire male be not a name of purchase Howbeit it was greatly doubted 3. 4. Phil. et Mariae as Justice Dalison reporteth if a remainder bée deuised by testament to the next heire male whether in that case the eldest brother onely shal haue it in so much as in the vnderstandinge of the lawe whych is a iudge ouer al customes he is the next heire male and therefore inquire of it As touching vouchers it appeareth 11. E. 3. that al the heires in Gauelkynd shal be vouched for the warraunty of their Auncester and not the eldest onely But the opinion of Master Littleton li. 3. cap. 13. and of the Iustices 22. E. 4. is clere y t the eldeâ—â— sonne onely shal be rebutted or barred by the warranty of the auncestour to be short the eldest sonne onely shal enter for the breache of a condition But the rest of the brethren shalbée ioyned with hym in suinge a writte of Attaynt to refourme a false verdict or Errour to reuerse an erronious iugement And they al shal be charged for the debt of their auncestour if so be y t they al haue assets in their handes But if the eldest onely haue assets remayninge and the residue haue aliened their partes then he onlye shal be charged after the mind of the booke 11. E. 3. c. And thus much for this part shal suffice Nowe a woorde or ij of other thinges confusely yet apertaininge to this matter notwythdinge not soe necessarie for your purpose to bée knowen as those aforesayde It appereth in a written report at large of 16. Edwardi 2. which is also partlye abridged by master Fitzherbert titulo Prescription that it was tryed by verdicte that noe manne ought to haue common in Landes of Gauelkinde howbeit the contrarye is well knowen at this day that in many places y e same booke saith y t the vsage of Gauelkinde is that a man may lawfullye inchase or driue out into the high waye to their aduenture the beastes of any other personne that hée shall fynde doynge dammage in his lande and y t he is not compellable to impounde them which thing is practised at this day The parlyament 15. Henrici sexti cap 3. mindinge to amplifye the priuiledges of Gauelkynde graunted to the tenauntes of that lande exemption in Attaints in such sort as the inhabitaunts of auncyent demeane and of the fiue portes before had But within thrée yeares after vppon complaynt of some of the Countrey which enfourmed the Parlyament house that there was not in the whole Shire thirtye or fortye personnes that holde to the value of xx pounde lande out of Gauelkinde who in default of others and by reason of that exemption were continuallye molested by returnes in Attaintes that act was vtterly repealed The statute 14. H. 8. cap. 6. gyueth libertye to euery manne hauing highwaie through hys lande in the welde that is worne déepe and incommodious for passage to lay out another waye in ome such other place of hys lande as shalbée thought méete by the vyewe of two Justyces of the peace and twelue other men of wysdome and discretion The general law made 35. H. 8. 17. for the preseruation of Copeises woodes thorough out the Realme maketh plaine exception of all woodes within this wealde vnlesse it be of such as bée common c. And here an ende of thys matter sauinge that I wil make master Litteltons annswere to such as happelye wil demaunde what reason thys custome of gauelkinde discent hath thus to deuyde lande a monge al the males coÌ„trary to the manner of the whole Realme béesides The yonger sonns sayth he be as good gen telmen as the elder and they beinge a like déere to their common auncestour from whom they claime haue so much the more néede of their freÌ„ds helpe as thorowe their minority they be lesse able then the elder Brother to helpe theÌ„selues c. Gelde GElde that is to bee quite of seruile customes which were woÌ„t to be geeuen and are yet giuen as hornegelde and such like Grithbrech GRithbrech that is the kinges peace broken because Grith in English is pax in latin Hangwite HAngwite that is to be quite of a théefe or relon haÌ„ged without iugement or escaped out of your custody Hariot HAriot is in ii sortes the one hariot Custome the other haryot seruice Hariot seruice some fay is alwaies expressed in a mans graunt or déede that hée holdeth by such seruyce to pay hariot at the time of his death and thys hariot is payable after y e death of the tenaunt in fée simsimple Hariot Custome is where hariotes haue byn payed tyme out of mynde by custome And thys may bée after the death of tenant for lyfe c. But to speake therof generally Hariot is the best beast whether it be horse Oxe or Cowe that the tenaunt had at the tyme of his death And may bée either seysed or a distresse taken for it whether it be hariot seruyce or hariot custome to the Lordes vse of whom the tenaunt held by hys Bailife or other officer béelonginge to hys manour But of right the Lord nor hys officer should not take hariot before it bée presented at the next court holden that the tenant is dead and that such a beast is due to the Lord for his hariot Haybote or Hedgebote HAybote or hedgebote is necessarie stuffe to make and mend hedges which lessée for yeares or for lyfe of common right may take vpon the ground to him leased although it bée not expressed in his lease and although it bée a lease by woordes without wrytinge Haybote also may bée takeÌ„ for necessary stuffe to make Rakes forkes and such like instrumeÌ„ts wherewith men vse in sommer to tedde make hay and so a lessée for yeares tooke it it was allowed him by hys lessor the rather as I suppose for that such instruments are commonly made of slender vnder wood which by the common lawe lessee for yeres may cut and take as is aforesaid Hidage HIdage that is to bée quit if the king shal taxe al the land by hides Note that a hyde of land is a whole ploweland And this kynde of taxinge by hides was much vsed in old tyme as well for prouision of armour as paymentes of money that chefely in kinge Etheldredes daies a kinge in thys Countrey before y e conquest who in the yeare of Christ 1006. when as the Danes landed
hâ—th a â—â—mture made c. and therefore demaunde iudgement of that action or iugement if she shal bee also endowed or any such lyke plea c. and this was the oppinion of y â— right worshipful master Brograue at his reading in Graies June in SoÌ„mer Anno 1576. 18. Eliz. vppon a braunch of the stat made An. 27. H. 8. c. 10. coÌ„cerning iointures dowers And by him of those things whereof a woman may bée endowed she may haue ioynture as of mines vesturam terrâ— woodes Townes Iles meadowes and such like Also of an aduowson of a reuersion depending vpoÌ„ an estate for life of a windmil a high chamber a rectorie and such other and they are called tenemeÌ„ts Also of a villen for hée is an heredytament of all these profet may come to the woman But of those thinges whereof noe profet will coÌ„e but rather a charge a ioynture cannot be made Theft THeft is a deceiptfull taking away of an other mans goods but not from his parson with a minde to steale them a gaynst hys will whose goods they were And theft is in two sorts y e one so called simplie the other pety or little theft The first is where the thynge stollen exceedeth the value of xij d. and y â— is felony The other which is called littel or pâ—tiet theft is where the thing stollen doth not excede y e value of xij d. and that is no felony Lastage LAstage that is to bée quite of a certeine custome exacted in faires any markets for caryinge of thinges where a man will Lessor and lessee LEssor is he that lesseth landes or tenementes to an other for terme of life yeres or at wil and hee to whome the lease is made is called lessee Leuant couchant LEuant Couchant is sayde when the beastes or Cattell of a straunger are come into an other mans ground there haue remayned a certen good space of time so longe that they haue wel fedde also rested them selues Wager of lawe WAger of lawe is when an accion is brought against one w tout especialty she wed or other matter of recorde as an accion of debt vpoÌ„ contract or detinue then the defendaÌ„t may wage his lawe that is to say swere vppon a booke and certaine persons wyth him that hée oweth nothing to the playntife in manner and fourme as hée hath declared But in an action of debt vppon a lease for terme of yeres or vpon the arrerages of accompt before auditors assigned a maÌ„ shal not wage his lawe And wheÌ„ one shal wage his lawe hée shal bring with him vi viii or xii of his neighbours as the court shall assigne hym to swere with him And if at that day assigne he faile of his law then hée shal be condemned Liuery of seysin LIuery of seysin is a ceremony vsed in conueyance of landes or tenemeÌ„ts where an estate in fée simple fée taile or a fréehold shal passe and it is a testimonial of the willing departing from all that which he who makes the liuerie hath in the thinge whereof liuerie is made And the receyuinge of the liuery is a wyllyng acceptance by the other partie of all that whereof the other hath dismissed him selfe And was inuented as an open and notorious thing by meanes wherof the common people might haue knowledge of the passinge or alteration of estates from manne to manne that thereby they might bée the better able to trie in whoÌ„ the right and possession of landes and tenements were if they should be impanelled in Juries or otherwyse haue to doe concernyng the same The common maner of deliuery of seysin is after this sort done If it bée in the open feelde where is no building or house then one that can read taketh the writinge in his hand if the estate shal pas by déed and declareth to the staÌ„ders by the cause of their méetyng there together c. and then openly readeth the deed in English and after that it is sealed the partie who is to depart from the ground taketh the déede in his handes together with a clodde of the earth a twigge or bowe if any there be and all this hée delyuereth to the other partie in the name of possession or seysin according to the forme effect of the déed which before them was there reade But if there bée a dwellynge house or buildinge vpon the land then thys is done there at the doore of the same none béeyng left at that tyme wythin the house and y â— partie deliuereth all the aforesaid together wyth the rynge of the doore in the name of seysin or possession hée that receiueth the libertie entreth in first alone and shutteth to the doore and presently openeth it agayne and letteth them in c. If it be of a house whereto is noe land or ground the liuerye is made and poss taken by the deliuerie of y â— ringe of the doore déed onely And where it is without déed either of landes or tenementes there the partie declareth by word of mouth béefore wytnesse the estate that hée meaneth to depart with and then deliuereth seysin or possession in maner as is before sayâ—e and so the land or tenement doth passe as well where there is no déede as by déede and that by force of the lyuerie of seysin It was agreed in Grayes Inne by the right warshipful master Snagge at his readyng there in SoÌ„mer an 1574 that if a feoffour deliuer the viewe of the land in name of seysin that it is good because that hée hath a possessyon in him selfe But otherwyse yt is of an atturney for hee must goe to the lande and take possession him selfe béefore that he can gyue possession to an other accordinge to the words of hys letter c. And where liuerie of seysin is by viewe if the feoffée doe not enter after c. nothynge passeth for hée ought to enter in déede Lotherwite LOtherwite that is y â— you may take ameÌ„des of him which doth defile your bondwoman without your licence Mahim or maim MAhim is where any meÌ„ber is hurt or takeÌ„ away whereby y e party so hurt is made vnperfect to fight As if a bone bée taken out of the hedde or a bone bée broken in any other part of the body or a foote or hand or finger or ioynt of a foote or any member bée cut or by some wound the sinewes bée made to shrinke or other member or the fingers made crooked or if an eye bée put out or the foretéeth broken or any other thinge hurt in a mannes body by meanes whereof hee is made the lesse able to defend him selfe But the cuttinge off of an eare or nose or breaking of the hinder téeth or such like is no may â–ª him because it is rather a deformity of y e body theÌ„ diminishing of strength And if the Justyces stand in doubt whether the hurt be a maihim or not they vse and wil of their
great discretiō take the helpe and opinion of some skilful Surgeon to consider thereof before they determine vpon the case Mainprise MAinprise is when a mā is arrested by capi as then the Judges may deliuer his bodie to certeine menne for to keepe and to bringe him before them at a certaine daye and these be called mainpernours and if the partye appeare not at the daye assigned the mainpernoures shal be amerced Mannour MAnnour is a thinge compounde of diuers thinges as of a house lande arrable pasture meadowe woode rent auowson court baron and such like make a manor this ought to be by longe contynuaunce of time to the contrary◠whereof mans memory cannot tel for at this day a manor cānot be made because a court baron cānot nowe be made and a manour cannot be w tout a court baron suters or fréeholders two at the least for if all the fréeholdes except one escheate to the lord or if he purchase al except one there his manor is gone for that it cannot bée a mannor without a court Baron as is aforesaid and a court baron cannot bée holden but before suters not before one suter therfore where but one fréehold or fréeholder is there cannot bée a mannour Manumission MAnumission is in ii sortes the one is a manumission expressed the other a manumissiō implyed or secreat Manumission expressed is when the Lord maketh a déed to his villen to enfraunches hym by this word Manumittere which is as much to say as to let one goe out of an other mans hands or power The manner of manumittinge or infraunchising in old time most vsually was thus The Lorde in presence of hys neyghbours toke the bonde manne by the heade saying I wil that this manne be frée and therewyth shewed him forwarde out of hys handes and by this hée was frée without anye more a doe Manumissyon implyed wythout this woode Manumittere is when the lorde maketh an obligation to his villē to pay him money at a certein daye or suith him wher he might enter without sute or graunteth vnto his vyllen an annitie or lesseth lande to him by déede for yeres or for life in dyuers such like cases y e villen thereby is made frée Maximes MAximes be the foundations of the lawe the conclusions of reason and are causes efficient certein vniuersall propositions soe sure and perfect that they may not bée at any time impeached or impugned but ought alwaies to bée obserued and holden as strong principalles and aucthorities of thēselues although they cannot be proued by force of argument or demonstratiōs logicall but are knowen by enduction by y e way of sence memory As for example it is a maxime that if a man haue issue 2. sonnes by diuers women and the one of them purchase landes in fée and dieth wythout issue the other brother shall neuer be hys heyre c. Also it is an othermaxime that lāds shal discēd frō the father to y e sōne ▪ but not frō the sōne to y e father for that is an ascention c. diuers such like there be Maynour MAynour is when a théefe hath stolne and is followed with hue and cry and taken hauing y t founde about him which he stole that is called the maynour And so we cōmonly vse to saye when we finde one doing of an vnlawfull act that wée tooke him with the maynour or maner Misprision MIsprision is when on knoweth that an other hath committed treason or felony and will not discouer him to the Q. or to her councell or to any magistrat but doth conceale the same A chapleine had fixed an olde seale of a patent to a newe patent of non residence and this was holden to bée misprision of treason onely and noe counterfeiting of the Q. seale Also if a man knowe mony to be counterfet bringe the same out of Irelād hither into England and vtter it in payment this is but mysprision of treason and no treason soe it is in diuers such like cases And in al cases of misprision of treason y e partie offendor shall forfayt his goods for euer and y ◠profets of his landes for terme of his life and his body to prison at the Q. pleasure And for misprision of felonie or trespas y e offēdour shalbée committed to prison vntill hée haue founde suerties or pledges for his fine which shal be assessed by y e ducretion of y t Justices before whom he was conuict And note that in euerie treason or felonye is included misprision and where any hath cōmitted treason or felony the Q. may cause y e sāe to be indited and arramed but of misprision onely if she will Shewinge of deedes or Recordes SHewinge of déedes or Recordes is as if for example an actyon of dette be brought against one vppon an obligation or by Executors c. there after that the pleyntife hath declared he ought to shewe his obligatiō or y ◠executour the testamēt to the court and soe it is of Recordes And the diuersitye béetwene shewing of deeds or Recordes hering of déeds or records is thus he y ◠pleades the deede or record or declares vppon it to him it doth appertaine to shewe the same And the other agaynst whom such déede or record is pleaded or declared and is thereby to bée charged may demaunde hearing of the same déed or record which his aduersarie brigeth or pleadeth against him Mortgage or Morgage MOrtgage or Morgage is whē a mā maketh a feoffement to another on such condition that if the feoffour pay to the feoffée at a certaine day xl li. of money that then the feoffour may reenter c. In thys case the feffée is called tenaunt in morgage And as a mā may make a feoffement in fée in morgage so hée may make a gift in tayle or a lease for terme of life or for term of yeares in morgage And it seemeth that the cause why it is called morgage is for that it standeth in doubt whether the feoffor will pay the money at the day appointed or not and if hée fayle to pay then y ◠land which hée layed in gage vppon condition of paymēt of y e money is gone from him for euer so dead to him vpō cōditiō But if he pay y ◠money then is the gage dead as to y ◠tenāt y t is to say the feoffée for this cause it is called in latin mortuum vadium as master Littleton sayth or rather mortuum vas as I thinke Mortmaine MOrtmaine was whē lands were geuen to a house of religion or to a cōpany which be corporat by y e kings graūt then the land is cōe into mortmain that is to say in English a dead hand and the kynge or the lord of whō y e lād to holden may enter into thē Mulier MUlier is a word vsed in our lawe but howe aptly I cannot tell nor doe wel knowe howe
holdeth ouer of y â— lorde aboue him As if y â— tenaÌ„t hold of y â— mesne by homage fealty xx s. of reÌ„t yerely y e mesne holdeth ouer of y e lord aboue by homage fealty xx s. rent also this is called owelty of seruices Hearing of Recordes and deedes c. HEaringe of Records déeds is if for example an actioÌ„ of det be brought against a man vppon an obligation and the defendant appéeres to the action and then praieth y t he may heare the obligatioÌ„ where with the plaintife chargeth him Soe it is when as executors bringe an action ofdet and the defendant demaundeth to heare the testament vpon this demaund it shal be read vnto the desendaunt But if it be in an other â—erme or after y â— the defendant hath imparled then hée shal not heare it And soe as is sayed of déedes is to be vnderstoode of recordes that are alleged against him Pape PApe is an auncyent name falsely arrogated or proudly vsurped by y e Bishop of the only Citye of Roome in Italie and is commonlye englished the Pope a name truely much frequented in our auncyent yere bookes specially in the times of those kings who to much abaÌ„doning their emperiall aucthoritie and abasinge themselues far beneath their estate were not a shamed to suffer an alyen outlandish Bishop that dwelt aboue fiftéene huÌ„dred miles from them to bee soueraigne ouer them in their owne dominions and to take froÌ„ them not onely the disposition of certen small trisles of none accompt but also the nomination of Archbishoppes Bishops Abbots Deanes prouosts appropriations of benefices preseÌ„taâ— ' to personages vicarages generally of al spirituall persons to their preferments sometymes by lapse and sometimes otherwise whereby the kings princely prerogatiue was very much abridged w tin their owne Realmes Partition PArtityon is à deuyding of laÌ„ds disceÌ„ded by the coÌ„mon law or by custome amoÌ„g coheires or parceners wher there be ii at y â— least whether they bée sonnes daughters sisters auÌ„tes or otherwyse of hyn to the auncestour from whom the laÌ„d discended to theÌ„ And this particion is made iiij wayes for the most part wherof thrée are at pleasure and by agreement among them the fourth is by compulsion One particyon by agréement is when they them selues deuide the lande equally into so many partes as there bée of them coparceners each to choose one share or part the eldest first so y â— one after other as they bée of age except y â— the eldest by consent make the particion then the choise belongeth to y â— next and soe to the eldest last accordynge as it is saied Whoe so maketh the partition the other must haue the choyse An other partition by agreement is wheÌ„ they choose certen of their frends to make diuision for them The third partition by agréement is by drawing of lots thus first to deuide the land into so many parts as there bée parceners then to writ euery part seuerally in a little scrolle or peece of paper or parchment and to put the same scrolles vp close into a hat cap or other such like thing and then each parcener one after an other as they bée of age to drawe out thereof one peece or scrolle wherein is written a part of the land whych by thys drawinge is nowe seuerally allotted vnto them in fée simple The fowerth partition which is by compulsion is when one or some of the coparceners would haue partition and other some wil not agrée there to TheÌ„ they y â— so would haue partitioÌ„ may bring a writ de partitione facicienda against y â— others that would not make partition by vertue whereof they shalbée compelled to depart c. Wée in Kent Brother Nicholas where the landes are of Gauelkynd nature cal at this day our partition Shiftinge euen y â— very same woord that the Saxons vsed namely Scystan which signifieth to make partitioÌ„ betweene coheires and to assigne to each of them their portion in latyn it is called Herciscere Parties PArties to a fine or déede are those that leuie the same fine and also they to whom the fine is leuied And they that make a déede of feoffement and they to whoÌ„ it is made are called parties to the déede and so in any other like cases Patron PAtron is hée that hath a parsonage vicarage frée chappel or such like spiritual promotion béelongynge to his maner and may or ought to gyue the same beneuÌ„ce when and as often as it falleth voyd And thys beynge patron or patronage had beginninge for the most part by one of these three wayes namely either by reason of the foundation for that the patron or hys auncestours or those froÌ„ whom he claimes were sounders oâ— builders of the Church or by reason of Dotation for y â— they did endowe or giue iaÌ„ds to the same for mayntenaunce thereof or els by reason of the ground because the Church was set or builded vpon their soyle or ground many times by reason of them al three Perquisites PErquisites are aduaÌ„tages and profits that coÌ„e to a manner by casualtie and not yearely as Escheates Heriots Reliefes waifes straies forfaytures amercementes in Courtes wardes mariages goods and landes purchased by villaines of y e same manor and diuers such like thinges that are not certen but happeÌ„ by chaÌ„ce sometimes more often then at other times Plaintife PLayntife is hée that sueth or complaineth in an ass or in an action personal as in an action of det trespas disceit detinue and such other Pledinge PLeding is y â— which coÌ„meth after y â— couÌ„t namely y â— which is contayned in the barre replication and reioynder and not that contayned in the count it selfe and therefore defauts in the matter of the Count are not comprised within mispleading or insufficient pleading nor are remedied by y t statute of Jeofailes But onely that mispleading or insufficient pleading committed in the barre replication and reioynder are there prouided for Pound POundes are in two sortes the one pounds open the other poundes close Pounde open is euery place wherein a dystresse is put whether it bée coÌ„mon pound such as are in euery Towne or lordship or whether it be backside Court yard pasture or els whatsoeuer where the owner of the distresse may come to geue them meat and drinke without offence for their beinge there or his comming thither Pounde Close is such a place where the owner of the distresse may not come to giue them meat and drinke wythout offence as in a close house or whatsoeuer els place Possession POssession is saied two wayes eyther actuall possession or possession in lawe Actual possessioÌ„ is wheÌ„ a manne entreth in déed into lands or tenements to him disceÌ„ded or otherwise Possession in lawe is wheÌ„ laÌ„ds or tenemeÌ„ts are discended to a man and hee hath not as yet really actually and in déede entred into them And it is called possession in
lawe because that in the eye and consideration of the lawe hée is demed to be in possession for asmuch as hée is tenant to euery mans action that will sue concerning y e same lands or tenementes Preamble PReamble taketh hys name of the preposition Pre before and the verbe Ambulo to goe see ioyned together they make a compound verbe of the first coniugatyon Preambulo to go before and hâ—â—â—of the first part or beeginning of an act is called y â— preamble of the act which preamble is a key to open the minds of the makers of the act and y e mischiefes that they in tende to remedy by the same as for example the statute made at West â–ª minster the first the 37. chapter which giueth an attaint the preamble of which is thus For as much as certain people of y e realme dout very little to giue false verdictes or othes which they ought not to do wherby many people are disherited and lose their right it is prouided c. Prescription PRescription is when one hath had or vsed any thinge sith the time whereof no minde is to to the contrary Presentment PResentment is when a manne which hath ryght to géeue a benefice spiritual nameth the personne to whome hée will geue it and maketh a writing to the Bishop for him that is a presentation or presentmeÌ„t Pretensedright or Title PRetensed right or title is where one is in possession of landes or tenements and an other who is out of possession claimeth it or sueth for it Nowe the pretensed right or title is said in him who soe doth sue or clayme And if he afterward come to y e possessioÌ„ of the same laÌ„ds or tenements his right or title is extinâ—t or suspendedin the lande Priuie or priuite and Pris uies PRiuie or priuite is where a lease is made to hold at wil for yeres for life or a feoffement in fée and in diuers other cases nowe béecause of this that hath passed betwéene these partyes they are called priuies in respect of straungers betwéene whom noe such dealinges or conueyances hath ben Also if there be Lorde and tenaunt and the tenaunt holdeth of y e lorde by certein seruice there is a priuitie betwene theÌ„ because of the tenure and if the tenaunt be disseysed by a straunger there is no priuitie béetwéene the dissâ—â—our and y â— lord but the priuitie styll remaineth béetwéene the Lord and the tenant thâ—t is disseysed and the Lord shall auowe vpon him for that he is his tenant in right and in the iudgment of the lawe Priuies are in diuers sortes as namely priuies in estate priuies in déede priuies in lawe priuies in right and priuies in bloode Priuies in estate is where a lease is made of the manner of dale to A. for lyfe the remâ—ynder to B. in see there both A. and B. are priuies in estate for their estates were both made at one time And soe is it in the first case heare where a lease is made at wil for life or yeres or a feoffement in fée y â— lessées or feoffées are called priuies in estate so are their heires c. Priuyes in déede is where a lease is made for lyfe and afterwarde by an other déede the reuersion is graunted to a straunger in fée thys grauntee of the reuersion is called pryuie in déede béecause that hée hathe the reuersyon by deede Priuie in lawâ—is where there is Lorde and tenaunt the tenaunt lesseth the tenauncye for lyfe and dyeth without heire and the reuersion escheates to the lord hée is said priuie in lawe béecause that hée hath his estate onely by she lawe that is to saye by escheat Priuie in ryght is where one possessed of a terme for yeres graunts his estate to an other vppon coÌ„dition maketh his executours and dieth nowe these executors are priuies in right for if the condityon bee broken and they enter into the lande they shall haue it in the right of their testatour and to his vse priuie of blade is the heire of y â— feoffour or donor c. Alsoe if a fine be leuied the heires of him y t leuied the fine are called priuies Priuiledges PRiuiledges are lyberties and Fraunchises graunted to an offyce place Towne or manner by the Quéenes great Charter letters patentes or act of parliament As Tolle sake Socke Infangtheefe vtfangethéefe turne tolle oredelfe and diuers such like for which looke in their proper titles and places Next frende NExt frend and warden in Socage is all one and is where a maÌ„ seysed of landes holden in Socage dieth hys issue within age of 14. yeares then the next frind or next of kinne to whom the lands cannot come or discende shall haue the keepinge of the heire and of the land to the only vse of the heire vntil he come to the age of 14. yeares and then at that yeares hée may enter and put him out and bringe hym to accompt but in that accompt hée shalbée allowed for all reasonable costes and expences beestowed either vppon the heire or his land And the next frind or next of kynne to whom the inheritaunce cannot discend is thus to be vnderstoode if the landes discend to the heire from his father or any of the kyn of his fathers side theÌ„ the mother or other of the mothers side are called the next of kynne to whom the inheritaÌ„ce cannot dyscende for beefore that it shal so dyscende it shall rather escheat to the Lorde of whom it is holden and so it is to be vnderstoode where the landes come to the heire from hys mother or any of y e kyn of his mothers side TheÌ„ the father or other of the fathers side are called the next of kin to whom the inheritaunce cannot discende but shal rather escheat to the Lorde of whom it is holden Protestation Protestation is a sauinge to the partie that so pleadeth by protestation to bée concluded by any matter alledged or obiected agaiÌ„st him vpoÌ„ which he caÌ„not ioin issu And is no other thing but an exclusion of the conclusion for hée that taketh the protestation excludes the other party to conclude hym And thys protestatyon ought to stand with the sequele of the plea and not to bée repugnant or otherwise contrary Purchase PUrchase is the possess that a manne hath in landes or tenements by his owne act meanes or agréement and not by title of â—iscent from any of his auncestours Quarentine QUarentine is where a man dieth seysed of a maner place and other lands whereof his wyfe ought to bée endowed then the woman shall hold the manner place xl dayes within which time her dower shalbée assigned But if shée marie w tin the 40. daies shée shall loose her quarentine Fifteene FIftéene is a payment graunted in parliameÌ„t to the Quéene by the Temporaltie namely the 15. part of their goods And was vsed in auncient tyme to bée leuied vppon their Cattayle goynge in their groundes which thynge was
reason whereof the patron presentes an other clerke whoe is instituted and inducted nowe the one of them may haue spoliation against the other theÌ„ shal come in debate if he haue plurality or not And so it is of depriuation c. The same lawe is where one sayeth to the patron that his clerke is deade where vppon hée presentes an other There the first incumbent which was supposed to be deade may haue a spoliation agaynst the other and soe in diuers other such like cases Stallage STallage that is to bée quite of a certeine custome exacted for y e streat takeÌ„ or assigned in faires and markets Suit couenant SUit couenant is when your auncestours haue couenaunted wyth my auncestors to sue to the court of my auncestors Suit custome SUit custome is when I and my auncestours haue bene seysed of your owne suitand your auncestours tyme out of minde c. Suit rial SUit â—â—al is when men come to the shiriffes tourne or léets to which court al men shal bee coÌ„pelled to come to knowe the lawes soe that they shall not be ignorant of the thinges that shalbée declared there howe they shal be gouerned And it is called rial suyt because of their allegeaunce and thys appereth by common experience when one is sworne his othe is that hée shal be a loyall and faythfull manne to the Quéene And thys suyt is not for the lande which hée holdeth within the Countie but by reason of his person and hys abode there and ought to bée done twise a yere for defaut whereof he shal be amerced and not distrayned Suit seruice SUit seruice is to sue to the sherifes tourne or léete or to the lordes court froÌ„ iij. wekes to iij. wekes by y â— who le yere for default thereof a â—â—â— shal bee distrayned and not amerced And this suit seruice is by reason of the tenure of a mans landes Taxe and Tallage TAxe and Tallage are payments as tenthes fiftenthes subsydyes or such like graunted to the Queene by Parlyament The tenaunts in auncien demeane are quite of these texes tallages graunted by parliament except y â— the Quéene do taxe auÌ„cteÌ„t demesne as she may wheÌ„ she thinks good for some great cause Sée auncient demesne Tenure in capite TEnure in capite is where any holde of y â— Queene as of her person beinge Quéene and of her Crowne as of a Lordshippe by it selfe in grosse in chiefe aboue al other lordshipes And not wher they hold of her as of any manor honor or castel except certein auncient honors which appere in the Eschequer Testament TEstament is thus defined or expounded in master PlowdeÌ„s comentaries a testament is the witnesse of the mind and is compound of these 2. words testatio mentis which so signifieth truth is that atestament is a witnes of the mynde but that it is a compouÌ„d word Aulus Gelliê° in his vi booke ca. 12. doth deny y â— same to an excellent lawyer one Seruius sulpitius saith that it is a simple word as are these Calciamentum Paludamentum pauimentum dyuers such like And much lesse is aggreamentum a compounde woorde of aggregatio and mentium as is sayde before in that title for there is no such latin word simple or coÌ„pound but it may neuerthelesse serue well for a lawe lattyn woorde And therefore thus it may be better defined A testament is the true declaration of our last will of that wée would to bée don after our death c. And of testameÌ„ts there bée ii sortes namely a testament in writinge a testameÌ„t by wordes which is called a nuncupatiue testament The first is alwayes in writing as is sayd The other is when a man being sicke and for feare least death or want of memory or of speach should come soe soddenly and hastely vppon hym that hée should be preuented if hée stayed the writinge of hys testament desireth hys neyghbours and frends to beare witnesse of hys last wil and then declareth the same presently by wordes before them which after his decease in proued by witnesses and put in writinge by the ordinary and then standeth in as good force except for lands as if it had at y â— first in the lyfe of the testatour byn put in writinge Them THem that is y â— you shall haue all y â— generation of your villâ—ynes with their sutes cattel wheresoouer they shal be sound in EnglaÌ„d â—â—cent that if any 〈…〉 shall remayne 〈…〉 yeare and a day in any priuiledged towne so y â— hee shalbée receaued into their coÌ„mmaltie or guild as one of them by that meanes hée is deliuered from villenage Thefbote THefebote is when a maÌ„ taketh any goods of a theefe to fauour and maintaine him And not when a man taketh hys owne goodes that were stolne from him c. The punishment in auncient time of theefeboote was of life and member But now at this day Master Stamford sayth it is punished by rauÌ„some and imprisoÌ„meÌ„t but enquire farder for I thinke it bée felony Title TItle is where a lawful cause is câ—e vpon a man to haue a thing which an other hath hee hath no action for y â— same as title of mortmam or to eÌ„ter for breach of a coÌ„ditioÌ„ Title of entrie TItle of entrie is wheÌ„ one seysed of lande in fee maketh a feoffement thereof vpon condition and the condrtyon is broken Nowe after the condition thus broken the feoffour hath title to enter into y e land and may so doe at hys pleasure and by hys entrie the fréeholde shal be sayd to bée in him prepresently And it is called title of entrie because that hée cannot haue a writ of right agaynst his feoffée vpoÌ„ coÌ„dition For his right was out of him by the feoffemeÌ„t which cannot be reduced without entrie the entrie must be for the breach of the condition Tolle or Tolne TOlle or tolne is most properly a payment vsed in Cities Townes Markets and faires for goodes cattell brought thither to bee bought and sold And is alwayes to bée payed by the buyer and not by the seller except there bee some custome otherwise There are diuers other tolles as turne tolle and that is where tolle is payed for bestes that are driuen to bée solde although that they bée not sold in déede Also tolle trauers that is where one claymeth to haue an halpeny or such lyke tolle of euery best that is driuen ouer his ground Through tol is where a Towne prescribes to haue tolle for euery best that goeth through their Towne a certen or for euery score or hundred a certen which séemeth not to be so vnreasonable a prescription or custoÌ„e assoÌ„e haue thought although it bée through the Quéenes high way as they call it where euery man may lawfully goe if that there bée one thinge for an other as if there bée a bridge or such like commodity prouided at the costes charges of the Towne for
definitiō of villenage is villein of bloude and of tenure And it is he of whome the Lord taketh redemptyon to mary his daughter to make him frée it is hée whom the lord may put out of his lāds and tenements at his wil alsoe of al his goods and cattel And note wel y t a sokmā is no pure villeine nor a villeine oweth not ward mariage nor reliefe nor to do any other seruices real And note wel that the tenure in vyllenage shall make noe frée man villeine if it be not continued sith tyme oute of mynde nor vyllayn land shal make no frée manne villeine nor frée lande shall make noe villeine frée except that the tenāt haue contynued frée sith the tyme of noe minde but a villeine shal make frée land villein by seysin or claime of y e lord And note wel that if a villain purchase certaine land take a wife alien and dieth before the claime or seysin of y e lord y e wife shalbée endowed And note wel y t in case that the lord bring a Precipe quod reddat against the alien the which voncheth to warraunt the issue of the villaine which is villeine to the Lorde hée shal haue the voucher by protestation y e Lorde may say that notwithstandinge that hee plede with his villeine yet his villeine shall not bée enfraunchised And note well that a bastarde shall neuer bee iudged bylleyne but by knowledge in court of recorde And note well that if det be due by a Lord to a free man and he maketh two men his executours the which bée villeynes to the sayed Lorde and dyeth the villeines shall haue an actyon of dette agaynst their Lorde notwythstandinge that he plede with them And if he make protestation they shall not bée for so much enfraunchised for that that they be to recouer the dette aforesaid to the vse of an other person that is to say to the vse of their testatour and not to their owne vse And if the tenāt in dower haue a villeine which purchaseth certaine land in fee and after the tenaunt in dower entreth shée shal haue the land to her to her heires for euer more the same lawe is of tenaunt for terme of yeres of a villein And note wel that the Lorde may roble his villain bete and chastice at his wil saue onely that he may not maime him for then he shal haue appell of mayme agaynste him ¶ And note well that a villaine may haue iij. actions against his lorde y t is to say appel of death of his aunce stour appel of rape don to his wife appel of maime And note well if two parceners bring a writ of Nyefe one of thē be nonsute the nonsuite of hym shalbée iudged y t consuit of them both soe that if the non-suite be after apparance they shalbée put oute from that actiō for euer for the lawe is such in fauour of liberty And note well if two haue a vylleine in comen one of them make to him a manumission he shal not be made frée against both And note wel that in a writ de Natiuo habendo it behoueth that the lorde shewe howe hee cōmeth priuy of the bloode of the villeine of whome hée is Lorde c. And if hée nor none of hys auncestours were not seysed of none of hys blood he shall not wynne by his action if y ◠villein haue not knowledged in court of record him selfe to bée his villein And note wel that in a writ of Niefe may not be put more niefes then ij this was first brought in in y ◠hatred of bondage But in a writ de Libertate probanda may bée put as manye nyefes as the plaintife will ¶ And note well that if the vylleyne of a Lorde bée in auncien demesne of y e king or other towne priuileged within a yere and a day the lorde may seise him and if he dwel in the same towne or other place fraunchised by a yere and a daye without seisin of the Lord he hath noe power to seyse him after if hée goe not in estraie out of the foresaid fraunches Taile ¶ To hold in the taile is where a man holdeth certaine lāds or tenements to him and to his heires of hys body béegotten And note wel that if y ◠land be géeuen to a man and to his heires males and hée hath issue male hee hath fée simple and that was adiudged in y e parliament of our Lord the kynge But where landes or tenementes bée géeuen to a man and to his heirs males of his body begotten then hée hath fée tayle and the issue female shal not bée enheritable as it appereth the xiiii yere of Edward the third in assise Taile apres possibilitie ¶ To hold in the taile after possibilitie of issue extinct is where lād is geuē to a mā to his wife to the heires of their ii bodyes ingendred and one of them ouerlyueth the other wythout issue betwéene them béegotten hée shall holde the lande for terme of hys owne life as tenaunt in the taile after possibilitie of issue extinct And not withstanding that he do wast he shal neuer be impeched of that wast And note that if hée alien hée in the reuersion shal not haue a writte of entre in consimili casu But hée may enter and hys entre is lawfull per Robertum Thorpe chiefe Justice Frankmariage ¶ To holde in frankemariage is to holde in the seconde tayle lymit in the statute of Westminster seconde cap. 1. And the feoffour shal acquite y ◠feoffée of al maner of seruices vnto y e 5. degrée be past and y e feffour shal do all the seruice and suites duringe y e sayde terme And after the heires of the feoffée shall doe it for that that the priuitie of bloud is past And if hée bée distrained for seruyce hée shal haue a writ of Mesne agaīst him supposing that he held the lands of him but he shal not haue the foreiudgement if it be not in aduauntage of his issues And note well that after the fowerth degrée be past he shall bee attendaunt of as much seruice to the donour as the donour is attendant to the Lord paramount And if hée do felony for which he is attaint the king shal haue his lands for terme of his life naturall And after hys death hys issue shal inheryte as by force of the tayle And in this case none shall haue hys lands by way of eschete no more then in any other taile And in case that the tenant die without heire of hys body begotten the lande shall reuert to the donour as it shoulde in the common tayle And if a manne let his land to another in franke mariage yeldynge to hym a certayne rent by yeare hée shall hold this land in the common tayle and not in frankemariage for by the rent reserued these woordes
in liberum maritagium bée al vtterly voyd so that y â— tenure shalbée intended after the tenure in the common taile And note wel that the gift in franke mariage hath a condition annexed to it notwithstanding that it be not openly declared in the déede of the gift as it appereth by the statut of westinÌ„ second ca. primo de Donis coÌ„dicionalibus And note wel that a manne shall not géeue landes nor tenementes in frankemariage but where the womanne is priuie of bloud to the donour â— else the mâ—â—â—e nor the womaÌ„ shal haue no other estate by the feoffement but for term of life Frank almoigne To holde in franke almoigne is to hold landes or tenements for to serue Godde and holye Church to endow without doynge any other manner of seruice And note well that in thys case the donor is mosne and oughtto acquite him fréely against the chiefe Lorde and also they that holde in frankealmoigne shall doe no fealtie but they that hold in franke mariage shall do fealtie Elegit To hold by Elegit is where a manne hath recouered debt or dammage by a writ against another or by confessyon or in other manner hée shal haue within the yere against hym a writte Judicial called Elegit to haue execution of the halfe of al his laÌ„ds and cattels except oxen and bestes of the plowe tyll the debt or dammages hée vtterly leuied or payed to him duringe the terme hée is tenant by Elegit And note wel if hee bée put out within y e terme he shall haue assyse of nouell disseysin and after a redisseisin if néede be and thys is géeuen by the statut of Westminster 2. ca. 18. and also by the equity of the same statute he that hath his estate if hée bée put out shall haue assise and a redisseisin if néede be and also if hée make his executours and dye and his executours enter and after be put out they shall haue by the equity of the same statute such action as hée hym selfe before said but if he be put out after make hys executours and dye his executours may enter and if they be stopped of their entre they shall haue a writte of trespas vpon their matter and case And note well if hée do wast in al the lande or parcell the other shall haue against him immediatly a writte Judicyall out of the first recorde called a venire facias ad computanduÌ„ by which it shalbée inquired if hée haue leuied all the money or parcel and if he haue not leuied theÌ„ money then it shal be in quired to how much the wast amounteth and if the wast amount but to parcel then asmuch of y e mony as y e wast amouÌ„teth shalbée abridged of y â— foresaid money which was to be leuied But if he haue done more wast then the foresaid summe of money which was to be leuied amounteth the other shall bée discharged by and by of all the said money and shal recouer the land and for the superfluity of y â— wa st made aboue that that amounteth to the sayde summe hée shal recouer his daÌ„mages single and the same lawe is of hys executours also of him that hath his estate And note that if hée alien in fée or for terme of life or in tayle all or parcell of the laÌ„d which he holdeth by Elegit if y â— alienation bée made w tin the terme or after hée which hath right shalhaue against hi one assise of nouel disâ—cisine And they both must be put in the auâ—se the alienor and the alienée and notwythstandinge that the alienour die preseÌ„tly yet he which hath right shal haue an assise against the alienée alone as if the alienour had bene a playne tenant for terme of yeres and that is by the equitie of the statut of W. 2. cap. 25. for that that he hath not but a chattel in effect and the same law is of his executours and of him which hath hys estate as is aforesaid And note wel that in an Elegit if the shirife retorne y â— he had nothinge y â— day of there conusance made but y â— he purchased lands after the tyme then the partye plaintife shal haue a newe writto haue execution thereof the same lawe is of a statute merchaunt And note wel that after a fiery facias a maÌ„ may haue the Elegit but not contrary wise for soe much y â— the Elegit is of more higher nature then thefieri facias And note wel that if a man recouer by a writte of debt and sueth a fieri facias and the shirife retourne that the party hath nothig where of hee maye make grée with the party then the plaintife shal haue a capi as sicut alias and a pluries and if the shirife retourne at the capias mitto vobis corpus and hée haue nothinge whereof hée may make grée to y â— party he shalbée sent to the prison of the Fléet there shal abide tyll hée haue made agrement w t the party if y â— shirife retourne non est inuentus then there shall goe forth an exigent against hym And note wel y â— in a writ of debt brought against a personne of holy church which hath nothinge of lay fée y â— shirife retourneth y â— he hath nought by which he may be summo ned then shall the plaintife sue a writ to the Bishop that hée make hys clerke to come and the bishop shal make hym â—o come by sequestration of y â— church And note wel y â— if a man bringe a writ of debt recouer make his executors dieth they shal haue executioÌ„ not w tstanding y â— it be within y â— yere by a fieri facias Statut merchant 6 To holde by Statute merchaunt is where a man knowlegeth to pay certayne money to another at a certaine day before the maior bailife or other wardeÌ„ of any town y t hath power to make execution of the same statute if y e obligée pay not y â— debt at y e day nothing of his goods lands or tenementes may be found within the warde of the maior or warden béefore saied but in other places without theÌ„ y e reconisée shal sue the reconisaunce obligatioÌ„ w t a certification to the chauncery vnder the kinges seale he shal haue out of the chauÌ„ cery a capias to y e shirife of y e couÌ„ty where he is to take him to put hym in prison if hée bée not a clarke til hée bée not a clarke til hée haue made gréement of y e debt And one quarter of the yere after that that hée shalbée taken hée shall haue his laÌ„d deliuered to himselfe to make gree to y e party of the debt he may selit while he is in prison and his sale shal be good law ful And if he do not grée w tin a quarter of a yere or if it be retourned that he be not