prysoner in warres and is compelled to serue and become the thrall and bondeman of hym that toke hym the lawe calleth suche persone a villayne And ye shall note that vyllaynes be properly called in latyn serui bycause that whaÌ„ they be taken in war the captaynes be wonte not to kyll them but to sell them and so to saue theyr lyfes so that they be called serui a seruando that is to say of sauyng They be also called Mancipia a manu capÃendo bicause that they be taken by hand poure of the enemies Nowe as I sayde by the lawe oâ— nature we are al borne free but after that by the lawe of Gentilitie seruitâ—te inuaded the worlde than ensued the benefyte of manumission Manumission is de manu datio that is to saye a gyuynge out of the hande or power For so longe as a man is in bondage and seruitute he is subiecte to the hande and power of an other and whan he is manumissed he is made free delyuered from the sayd power so that a manumission is nothynge elles than an enfranchisemeÌ„t that is to saye a wrytynge testifieng that the lorde hath enfranchised his villayn al his offpring and sequel Also yf the Lorde maketh to hys villayne an obligacion of a certeyne summe of money or grauntethe to him by his dede an annuitie or yearly pension or leaseth to hym by dede landes or tenementes for terme of yeres any of these actes do imply an enfranchisement Lykewyse yf the Lorde maketh a feoffement to his villayne and maketh vnto hym lyuery of seysâ— thys also is an enfranchisment and secret manumissioÌ„ Brefely to speke where so euer the lorde compelleth his vyllaine by the course of the lawe to do that thyng that he myght otherwyse eÌ„force him to do or to suffre without the auctoritie and compulsion of the lawe he doth by implication enfranchise his villayne as if the lorde wyl bryng agaynst his villayne an action of det an action of accompt of couenant or of trespace these and such lyke be in the eye of the lawe enfranchisementes and manumissions bycause that the lorde in all these cases may haue the effecte and purpose of his suite that is to saye the goodes catels and correctioÌ„ of his bondman without the compulsion of the lawe euen by his owne propre power and authoritie whyche he hath vpon hys villayne But if the lord doth sue his vilayne by an appeale of felonye the villayne beyng lawfully endyted of the same before this is no tacite manumission or infranchisemeÌ„te for the lorde though he haue power to beate his villaine and to spoyle him of his goodes yet he can not by the lawe of this Realme put him to deathe Ye shall also vnderstande that if a mannes villayne purchaseth landê or acquyre and gette vnto him anye other thynge the lorde maye by and by entre and sease the same in to hys owne handes Wherfore if the lorde wyll brynge agaynste hys villayne a praecipe ê™ reddat by whyche he demaundeth agaynst his villayne any landes or tenementes this implyeth an enfranchisemente for asmoche as he byndeth himselfe to the prescripte and authoritie of the lawe where as he might vse his owne authoritie by entring and seasing the said landes Finally ye shal marke that some villaynes be called villaynes in grosse and other some be called villaynes regardaÌ„t In grosse be they of which the lorde is seuerally seased and not by reasone of any lordeshyp or maner but they be called regardaunte whiche do belonge to a Manoure of whyche the lorde is seased and the sayd villaynes haue bene regardant that is to saye expectant and attendante tyme out of mynde to the lorde of the sayde Manour in doing vnto him suche seruices as to a villayne appertayne ⧠Of rentes ⧠FOr asmoch as vpoÌ„ euery tenure there is commonly reserued one rente or other therefore I thynke it good sumwhat to treate of rentes But ye must vnderstande that there be sundry sortes of rentes There is one kynde of rente whyche is called rent seruice â—n other whiche is called rent charge and the thyrde which is named in frenche rente secke that is to saye in latyne redditus siccus a drye rente Nowe rent seruice is so called bycause it is knyt to the tenure and is as it were a seruice wherby a man holdeth his landes or tenemeÌ„tê or at lest way when the rente is vnseuerably coupled and knyt wyth the seruice as for an exemple where the tenant holdeth his lande of the king or of any other lorde by fealtie and by certaine rente or by homage fealtie and certaine rent or by any other sortes of seruices by certaine rent this rent is called rente seruice And here ye shal note that if this rent seruice be at any time when it ought to be payed behynde and vnpayde the lorde of whom the land or tenement is so holden whether it be in fee simple fe taile for terme of life for yeres or at wyll may of common right entre and distraine for the rent though there be no mencion at all ne clause of distresse put in the dede or lease I said before that yâ— nature of this rent seruice is to be coupled and knyt to the tenure For where no tenure is there can be no rent seruice And therfore if at this day I be seised of landes in fee simple and make a dede of feffement of the same to an other in fe simple reseruing by the same dede a rente thys can be called no rente seruice bicause there can be nowe no tenure betwene the feffoure and the feffee Otherwise it is of feffementes in fee simple made before the statute of Westmester the thirde called Quia emptores terraruÌ„ For before the making of yâ— statute if a man had made a feoffement in fe simple reseruynge to him a certayne rent yea though it had bene wtout dede here had bene created a new tenure betwene the feffoure and the feffee and the feffee shuld haue holdeÌ„ of the feffoure who by vertue of the same myght of common right haue distreyned for suche rent But at this daye by force of the sayde acte there can be no suche holdyng or tenure created nor begonne and consequently no rent seruice can be at this daye reserued vpon anye gyfte in fee simple except it be in the kinges case who being chiefe lord of all euer might and may giue landes to be holden of him Thus ye se that at this day no subiect can reserue any rente seruice vnto him onles the reuersioÌ„ of the landes or tenementes that he shall graunt be styll in him as where he grauntethe them in feâ— tayle or maketh but a lease for terme of lyfe or for certayne yeares or ells at wil. For in al these cases the reuersion of the fee simple remayneth styll in hym and therfore if here be anye rent reserued it is to be called a rent seruice and is of common right distreynable
almoyne By force of whyche tenure they that holde in francke almoyne after thys sorte be bounde of ryght before god to make orisones and prayers to celebrate masses and to do other diuine seruices for yâ— soules of their graunters and feffers and for the soules of theyr heires whych be dead and for yâ— prosperous estate of their heyres that be nowe alyue And bycause of ryghte they be bounde to thys diuine seruice they be discharged by the lawe to do any other prophane or corporall seruice as fealtye or suche other lyke But neuerthelesse if suche as hold theyr tenementes in franke almoyne do omyt and leaue vndone these deuine seruices wheruÌ„to they be bouÌ„d before god the lorde can not distrein them ne yet compell them by any other meanes by the course of the coÌ„mon lawe but the onelye remedy is to complayne of them to theyr ordinarye who of ryght ought to compel suche ecclesiasticall persones to do the deuyne seruice due as afore said But here ye shall note that yf a persone of a chyrche or any other ecclesiasticall persone holdethe of hys lorde by certeyne diuine seruice to be done as to synge masse euery frydaye in the weke or placebo and â—irige or to fynde a preest to synge masse or to distribute in almes C. pence to a hondred men at suche daye in all these cases yf such diuyne seruice be vndone the lorde mayne very wel distrayn bycause the seruice is put here in certayntye Now I sayde that if in olde time a man dyd infeoffe suche ecclesiasticall persone after such sorte he shuld holde hys lande in franke almoyne but at this day it is otherwise for by the reasone of a statute called Quia emptores terrarum no man can aliene ne graunt landes or tenementes in fee simple to holde of hym selfe so that nowe yf a man beynge seased of landes in fee simple graunteth the same by liceÌ„ce to an ecclesiastical person in franke almoyne these wordes franke almoyne be voyde the ecclesiastical persone shal holde them immediatlye of yâ— lorde of the feoffer by the same seruyces yâ— the feoffer helde so that no man can hold in franke almoyne but by force of a grante made before the sayd statute onely the kinges maiesty excepted for he is out of the compasse of the-statute Finally ye shall note that where as a man holdeth in frank almoyne his lorde is bounde by the lawe to acquite him of al maner of seruice that any other lorde can haue or demauÌ„d out of the sayde landes That yf he dothe not acquyte him but suffre him to be distreyned than he shall haue agaynst his lorde a certayne wryt called a wryt of meane and shall recouer agaynste hym hys damages and costes of his suite Of burgage A Tenure in burgage is where an auÌ„cieÌ„t broughe is of which the kynge is lorde and they whyche haue tenemeÌ„tes wtin yâ— same brough holde the same of the kyng payenge a certeyne yearly rent whych tenure in effecte is but socage tenure Lykewyse it is where as any other lorde spirituall or temporal is lord of such broughe Here ye shal note that for the most parte suche auncient burghes haue dyuers customes and vsages which other townes haue not For some burghes haue a custome that the yongest sonne shal inherite before the eldeste whyche custome is called commonlye broughe Englyshe Also in some burghes by the custome the woman shall haue for her dower al the landes and tenementes wherof her husbande was seased at anye tyme durynge the couerture Moreouer in some burghes a maÌ„ may deuise his landes or tenemeÌ„tes by testameÌ„t at the tyme of his death and by force of suche deuyse or legacye he to whome the bequeste was made after the death of the testatour maye by force of thys auncient custome entre in to the landes so to him bequethed or deuised without anye lyuery of seasone to him made or further ceremonye of lawe Dyuers other customes in Englande there be contrary to the course of the common lawe whyche if they be anye thynge probable and maye stande wyth reason are good and effectuall not withstandynge they be agaynste the common lawe Of villenage or bonde seruice A Tenant in villenage is proper lye whan a villayne that is to saye a bondman holdeth of his lord whose bondman he is certayne landes or tenementes accordynge to the custome of the Manoure or otherwyse at the wyll of hys lorde and to do his lorde villayne seruice as to beare to carye yâ— donge of his lorde out of the citie or out of hys lordê Manoure to lay it vpon the demeane landes of his lorde or to do such like seruyle villayne seruice How be it fre men in some places holde theyr tenementes laÌ„des of their lordes by custome by such sorte of seruice and theyr tenure is called tenure in villenage yet they themselues be no villaines ne of seruile condicion but fre meÌ„ For the land holden in villenage maketh not the tenant a villayn but contrary wyse a villayne may make fre land to be villayne land vnto his lorde As if a villayn purchaseth laÌ„d in fee simple or in fee tayle the lorde of the villayne maye entre into the lande so purchased by hys bondman and put hym and his heyres out for euer and this done the lord if he wil maye lease the same lande to his villayne to holde of hym in villenage And here ye shall vnderstande that seruitute or villenage is the ordinance not of the law of nature but of that law which is called Ius gentium by whyche a man is made subiecte contrary to nature vnto an other mannes dominioÌ„ For he that is a villayne or bondman eyther he is so by title of prescription that is to saye he and hys auncestoures haue bene villaynes tyme out of minde or elles he is a villayne by his owne coÌ„fession in court of recorde so that all villaynes either they be borne villaynes or elles they be made so They be borne villaines when theyr father beynge a bonde man himselfe begetteth them in lawfull wedlocke either of a fre woman or of a bond woman for so that the father be bonde the issue of him lawfully begotten muste nedes be bonde by the lawes of Englande hauynge no regarde to the coÌ„dicion of the mother where as in the ciuill lawe it is clene contrarye For there partus sequitur ventrem that is to say the seruitute or bondage of the mother maketh the chylde bonde and not of the father Howe be it the bastarde sonne of a bondeman shall not be bonde bycause a bastarde is nullius filius in the law that is to say nomans sonne They be made vyllaynes two wayes eyther by theyr owne propre acte as whan a free man beynge of full age wyll come into a court of recorde there confesse himselfe bonâ—e to an other man Or elles by the lawes of armes called Ius gentium as whan a man is taken
by an aunciente custom she shal be indowed of the 〈◊〉 â–ª yea and thoughe 〈…〉 seased actually durying the courture yet if the landes be caste vpon 〈◊〉 by the lawe so that the law calleth him tenaunt to euery mans action it suffiseth for the woman to demaunde her dower for it were vnreasonable that the negligence 〈…〉 of entrynge of the husbande shulde hurte the wyues 〈…〉 Otherwise it is as I sayde before of tenauÌ„t by the curtesy for if landes descende to a woman couert and the husbande for slouthfulnes or negligence doth not entre in his wyues life he shal not be tenaunt by the curtesi◠〈◊〉 by all lawes the wyfe oweth obedience and subiectioÌ„ to her husbande and therfore she can not compel him to entre but when landes descend to the wyfe the husbande onelye haue power to entre at his pleasure And ye shall vnderstand that onlesse the wyfe be passed the age of ix yeares at the tyme of her husbandes deathe she shall not be endowed by the common lawe But it is to be knowen that a womaÌ„ maye by diuers wayes estoppe and preuidiâ—e her selfe of her dower as if she commyt any crime for which she is atteynted of treasone murdre or felonye â—he gettâ—â—no dower not wythstandyng she hath obteyned her pardone Also yf after the deathe of her husband she taketh a lease for terme of lyfe of the same landes wherof she is indowable she losed her dower of the same Moreouer yf she departethe from her husbande and lyuethe in aduoutrye wyth an other man and not reconcieled agayne to her husbande wythout coercion of the ecclesiasticall power she lesethe her dower after her husbandes deathe She shall be also barred of dower yf she wyll wythholde from the heire the charters and euidence concernynge that lande wherof she asketh dower But none other saue the heyre can wytholde her dower for thys cause It maye not be vnknowne also of what thynges she maye demaunde dower and of what thinges not Of landes messuagies aduousons rent charges rente seruyses or signories in grosse or otherwyse of villaynes of coÌ„mons certayne of estouers certayne she is dowable But of commons and estouers sans nombre also of annuities of homage of thingê of pleasure as of seruyces of paimet of roses and semblable she shall not be endowed There be yet two other kindes of dower the one is called dowment ex asseÌ„su patrâ—is and the other is called dowment de la plus beale ê‘tie that is to saye of the fairest parte Dowment ex assensu patris is whan the father is seased of landes in fee and his sonne whiche is heyre apparaunt endoweth his wife at the churche dore whan he is espoused of parcell of hys fathers landes wyth the assente of his father in wrytinge testifienge the same assent if in thys case her husband dye she may forthwyth entre into the laudes so assigned vnto her wtout further appâ—yntynge or proces of law although the father of her husbande be yet aliue in actual possession of the lande But if she thus do and take her to thys endowment at the churche dore she can not haue her dower by the common lawe of the thyrde parte of all her husbandes landes or any parcell of them how be it if she wyll refuse this assignement made vnto her at the church dore and demaund dower at the common lawe she maye verye well A man maye also endow his wyfe at the time of the spousailes of his own landes whiche he hath in his owne possession and that dower is called dower ad ostium ecclesiae Dowment Dela plus beale that is to saye dowmente of the fayreste parte shall be in thys case Whan a man is seased of landes whiche he holdethe of an other man by knyghtes seruice and of other laÌ„des which be of socage tenure and hathe issue whyche is wythin the age of .xiiij. yeares dye and the lorde of whom the lande is holden by knyghtes seruyce entrethe in to the lande holden of hym and the mother of the chylde entrethe in to the socage tenure as gardeyne in socage yf in thys case the woman wyll brynge a wrytte of dower agaynste the lorde whyche is gardeyne in cheualrye he may plede the speciall mater and shewe howe she as gardeyne in socage hath so moche lande and pray the court that she maye be suffred to endowe her selfe of so moche lande beynge in her owne custodie as amounteth to the thyrde parte of the hole landes And than the iudgemente shall be that the gardeyne in chyualrye shall reteyne the lande holden of hym quyte from the woman duerynge the non age of the warde After which iudgement she maye go and in presence of her neighboures endowe her selfe of the beste parte of that whyche is in her custodye amountynge to the thyrde parte of the hole and than is she called tenaunte in dower de la plus beale A diuision of inheritaunces HYtherunto I haue spoken of free holdes nowe it remayneth to treate of inheritauÌ„ces not that inheritauÌ„ces be no free holdes for they be free holdes also but the other estates of whiche I haue here tofore treated be onely free holde and of no hygher nature where as a state of in heritance although it â—e a free hold yet it is not to be called by that name sythe it is a farre more excellent and greater estate But ye shall vnderstande that of inheritaunces some be of more amplitude and excellencye than other some be as that inheritaunce whyche is pure simple and without limitacion of what heyres is it called fee simple But when I make a limitacioÌ„ of what heyres thaÌ„ is it called fee tayle of which also be two sortes as herafter more at large shal be declared Nowe the nature of fee simple is to be setforth wyth oure accustomed compendiousnes Fee simple FEe simple is as I sayd the most ample large inheritaunce that can be in this realme diuised or excogiâ—ate as that whiche a man hath to hym and to his heyres simply without any further limitacion for whether they be of his owne bodye begot ten or not so that they be the next of his kinne and wythin the degrees it suffiseth So then tenaunte in fee simple is he that hath landes or tenementes whether it be by purchase or by discent to him to his heires for euer For if a man will purchase landes in fee simple he must nedes haue these wordes his heyres in his purchase for these be the onlye wordes that make an estate of inheritaunce Therfore yf landes be gyuen to a man for euer no mencion be made of his heyres he hath an estate but for terme of his lyfe bycause these wordes his heyres do lacke Yet neuertheles if a maÌ„ by his testament doth deuise landes to an other in suche where the custome wyl serue so to do though he maketh no mencion of heyres but saythe that he bequethethe to suche a
personne suchâ— landes to haue to hold to him and to his assignes for euermore here a state of inheritauÌ„ce doth passe for in testamentes the wil and intent of the testaour is to be pondred not the formal prescripte wordes of yâ— law Also these termes in the lawe franke mariage and franke almoâ—e that is to saye free mariage and free almose do include in them wordes of inheritaunce And therfore if I giue landes to a man wyth my daughter in franke mariage wythout further addicion or meÌ„cion of heires this is an estate of inheritaunce as we shal hereafter declare more plentiouslye In likewyse it is of landes giuen to an house ecclesiastical in pure fraÌ„k almes Moreouer if landes be giuen to a maÌ„ to his blode or to him to his seed he hath in both cases a state of inheritauÌ„ce for in yâ— one he hath a fee taile in thother a fe simple For this word seed and bloud and suche lyke do implye wordes of inheritaÌ„ce But nowe it is to be sene who be sayde a mannes heyres in the lawe Ye shall therfore knowe that my brother or syster by the halfe bloude that is to wytte by the fathers syde and not by the mothers or contrary wyse by the mothers and not by the fathers shall neuer be myne heyre nor none that come of them Neither my bastarde can be myne heyre nor myne owne naturall father ne mother nor grandefather ne grandmother can be myne heyre For it is a principle and grounde in the lawe that inheritaunce may linially descend but ascende it may not And therfore if I haue landes in fee simple and dye wythout issue of my bodye my father can not be myne heire but my fathers brother or syster shal and then if my vncle or aunt dye seased wythout issue my father shal haue the landes as heir to myne vncle or to my aunte but heyre to me he can not be But it maye go from me to myne vncle or aunte well ynoughe for that is not called a linial ascension but a collatrall And ye shal note that by the commoÌ„ lawe of this realme my eldest sonne shall haue the hole inheritaunce and after hym if he hathe no issue the seconde sonne and so forth And if I haue no sonnes but daughters than shal al the daughters togither inherite if I haue no issue at all neither sonâ—es ne daughters than shall my eldest brother in heritage succede me but if I haue no brother than my systers if I haue any if not my vncle by my fathers syde if the landes be of myne owne purchase And to be shorte if there be none in lyfe of my fathers syde it shall goo to my mothers syde and if there can be found no heyre neither by fathers syde ne yet by mothers then shall it reuerte and eschete as they call it to the lord of whome it was holden for euerye lande must nedes be holden of some lorde as shall be here after shewed But if landes descende vnto me by my mothers syde than if I fayle of issue the landes shall descende onely to my heyres of my mothers syde neuer to myne heyres of my fathers syde as on the contrarye syde yf I haue landes or any hereditamentes by disceÌ„t froÌ„ my father or his blode they shal neuer descend to my heires by my mothers syde Thus ye se a greate difference in this behalfe bitwene purchased landes and landes which descende from my auncestoure Yf there be thre sonnes and the myddell sonne purchaseth landes dye wythout issue the heldeste shall haue the laÌ„des and not the yongest Also it is a principle in oure law that none can be myne heyre of landê that I holde in fee simple onles he be myne heyre by the hole blode that is to say both by father and mother for if a man hathe issue two or thre sonnes by sondry wyues and the eldest purchaseth landes in fee and dyeth wythout issue his halfe brethren I meane those that be not his brethren bothe by the fathers syde mothers syde shall not haue the lande but it shall go to his vncle Lykewyse if a man hath by his fyrste wyfe a sonne and a daughter and by his seconde wyfe an other sonne and the sonne by the fyrst wyfe purchaseth landes in fee and dyethe wythout issue the syster german shall haue the landes by disceÌ„t as heyre to her brother and not to the yoÌ„ger brother Otherwise it is of landes or other hereditameÌ„tê entailed as shal be herafter specified Also if a man be seised of landes in fee simple and hathe issue a sonne and daughter by one wyfe and afterwarde a sonne by an other and dyeth and the eldest sonne entreth in to the landes and after dyeth wythout lawfull issue of his body the daughter shall haue the landes and not the yongest sonne and yet the yongest sonne is heyre to his father but he is not so to his brother But if in thys case the eldeste sonne had not entred after the death of his father but had died before any entre made by hym than shal not the syster germaine entre but the yonger brother is heire to his father bicause the eldest brother was neuer in actuall possessioÌ„ which is requisyte to that personne that claymeth to be heyre collaterallye But to the lyniall heyres it suffiseth that the auncestour shuld haue bene heyr yf he had liued I meane as thus A man is seased of landes and hath issue a sonne daughter by one wyfe and afterwarde a sonne by an other he dyethe the eldeste sonne entrethe not but dyeth wythout issue before he can make any actuall entree hys syster shall not haue the landes as heyre to her brother bycause her brother was neuer actually possessed but yâ— yoÌ„ger brother shall haue them as heyre to his father Yet if theldest sonne in that case had lefte behynde him issue of his body whether it had bene soÌ„ne or daughter this issue not wythstandyng that the father of the issue was neuer possessed either actually or in the law shal haue the laÌ„des and shal conuey his discent from his father for the sonne or daughter is linial heyre where as the brother sister vncle aunt c. be heyres collaterall and so obserue a dyuersitie I call an actuall possession whan a man entreth in dede in to landes to him desceÌ„ded but a possessioÌ„ in lawe is called when landes be descended to a persone ann he hath not yet real ly and actually eÌ„tred in to them For notwythstandydge that he is not in actuall possession yet he is possessed in the lawe that is to say in the eye consyderation of the law for asmuch as he is tenaunt to euery mans action that wyll sue for the sayd landes for els there shulde insue an intollerable inconuenience as we shal more copyously open in an other place Ye shall vnderstande that thys worde inheritaunce is not onelye to be accommodate and
applied to that whyche commeth by discente from a mannes auncestours but also to euery purchase in fee simple or fee taile Fee tayle Ye shall vnderstande that before a certayne statute called the statute of Westminster seconde there was no state tayle but all was fee simple eyther purely that is to saye wythout condition or condicinallye as appereth by the pretence of yâ— said statute but now sythens the promulgating of that statute diuers formes of state tayles haue rysen Fee tayle is whan it is prescribed and lymytted in the gifte what heyres and by whome engendred shall inherite As for exemple I gyue landes to a man and to his heyres and go no further this is fee simple but if I make a limitation and adde of his hody begotten now is it fee taile that is to saye a fee or inheritaunce limitted prescribed determinate or assigned So that if I gyue landes to a man and to his heyres he hathe fee simple but yf I gyue landes to hym and to hys heyres of hys bodye lawfully begotten he hathe but a fee tayle for asmoche as I appoynte lymytte prescribe and determyne the heyres and for lacke of suche heyres the gyfte shall be expired and worne out the landes shall reuerte agayn to the gyuer or his heyres But ye muste obserue that there bo two kyndes of fee tayle There is a generall tayle and there is a speciall tayle Fee tayle generall is as where landes be giuen to a man and to his heyres of his bodye begotten without anye mencyonynge and expressynge by what woman they are to be begotten And therefore yfa maÌ„ be tenaunte in the generall tayle of landes and taketh a wyfe and hathe issue by her and she dyeth and afterwarde he takethe an other wyfe of whom he hath also other issue here either of these issue is inheritable to this land entayled But if I expresse in the gifte by what womaÌ„ the heires shall be procreate and ingeÌ„dred then is it an especiall tayle as for exemple to make the thynge playne if landes be gyuen to a man and to the heyres of his body lawfully begotten by Katherin his wyfe this is an especiall tayle for the issue of him begotten by an other woman shal neuer inherite by force vertue of the tayle Lykewyse it is if landes be giuen to a woman and to yâ— heires of her body law fully begotten shewe not by what man this is a general taile but if I adde saye by suche a man her husbande than is it an especiall taylle Also yf I gyue landes to a man and to hys wyfe and to the heyres of there two bodyes lawfully begotten thys ys an especyal tayle as wel in the husbande as in the wyfe Semblably it is yf a man gyueth landes to an other man wyth hys daughter or kynswoman in francke mariage thys emplyeth a state tayle especiall and in thys case as wel the man as the woman hathe estate in in the speciall tayle But yf I gyue landes to a man and to suche a woman and to hys heyres that he shall begette of her here the woman hathe estate but for terme of her lyfe and the husbands an estate in the especyall tayle In lykewise it is on the womaÌ„s behalfe as if I gyue landes to a man and to hys wyfe and to her heyres of the bodye of her said husbande engendred he hathe an estate but for terme of lyfe and she an estate in the specyall tayle But in bothe cases yf I hadde sayde to the heyres and not hys or her heyres than shulde eyther of them haue hadde an estate in the specyall tayle bycause thys worde heytes is as well referred to the one as to the other Ye shall also vnderstande that yf landes be giuen to a man ond to the heyres males of his bodye this ys a state tayle and in this case the heyre femalle shall neuer inherite Finally it is to be noted that of landes whych a man hath in fee simple the possession of the brother shall cause the syster germayne that is to saye the syster bothe by the fathers syde mothers to inherite and not the brother by the halfe blod as here tofore was said but of landes which be entayled otherwise it is Therfore if a man be seysed of landes in the generall tayle and hath issue by hys furst wyfe a sonne and a daughter and also a sonne by an other wyfe dyeth and the eldest sonne entreth in to the landes after dyeth the suster germayne shall not haue the landes but the yonger brother of the halfe blode bycause whosoeuer shall inherite landes in taile must claym them as nexte and immediate heyre not to hym that dyeth last seased of the landê but to hym vnto whome the landes were fyrst gyuen whyche in the case before remembred is the sonne and not the daughter Thus ye shal marke obserue a great diuersitie bytwene the forme of successyon in landes of fee simple and the forme in fee tayle Tenaunt after possibilitie of issue extincte WHan landes or tenementes be giuen to a maÌ„ and to his wife and to the heires of there two bodies lawfully begotten yf in thys case either of them chaunce to dye before they haue issue betwene them he or she that ouerlyueth hys styl tenaunt in tayle but wythout all possibilitie of any issue that can be heyre to these landes entayled and for thys cause he or she thus ouerlyuynge is called tenaunte after possibilitie of issue extincte for in suche a tenaunte is all possibilitie of issue that maye be inherytable to these landes by force of the gyfte in tayle vtterlye extincte and quenched and by his or her deth the state tayle shall expyre cease and be abolyshed for euer and shall reuerte agayn to the gyuer or donoure from whence it came Yet forasmoche as thys tenaunt after possibilitie of issue hadde ones an inheritaunce in hym he shall not be punyshede by an action of waste though he makethe neuer so moche waste in the landes and tenementes whereas yet in effecte he is but a tenaunte for terme of lyfe Of perceners Hitherunto I haue made a compendious and short declaracyon of estates of al sortes But where I sayde that among susters there is no prerogatyue or preminence concernyng the inheriting of theyr auncestoures landes but that they shall be al togither inheritours and make as it were but one heyre it is expedient to make a further processe in this behalfe and to shew howe in what maner this partition shall be made But ye shall vnderstande that there be besyde parceners at the common lawe whyche be onelye susters also parciners by custome whiche is amonges brothers contrarye to the course of the common lawe and this custome is in Kent and in other places where landes and tenemeÌ„tes be of the tenure of Gauel kynde Ye shall thefore knowe yâ— whan a maÌ„ is seised of landes in fee simple or see tayle and hath no
issue but doughters and die and the doughters do enter in to the landes thus desceÌ„ded vnto them nowe they be called parceners or coheyres by a wryt called De ê‘titione facienda brought by on of them agaynst the others they shal be constrayned by the lawe to suffre an egall particion to be made of the landes bytwene them Nowe partycion maye be made in sundrye wayes One waye is whaÌ„ they them selues do make particion bytwene them of the hole herytage and do agree vnto the same and entre euery one in to her parte so alotted vnto her An other is whan by all they re agremente an consente one common frende do make the particion In whych case the eldest syster shal haue the fyrst election and after her the seconde suster and so forth But if they agree that theldest suster shall make the particion and she maketh it then theldest shal not chuse fyrst but shall suffer all her susters to chose before her as it is thought There is also an other forme of particion whiche is egally to diuide the landes into so manye partes as there be coheires or parciners and to wryte euery parte so diuided in a seuerall scroule of paper and to putte the sayde scroulles in to a bonette or to enclose them seuerally in balles of waxe and than the eldeste suster to chuse whyche balle she wyt or to put her hande in to the bonet and to take a scroule to holde her to her chauÌ„ce and allotment and so consequentlye euery suster after other And ye shall note that particion by agrement maye as well be made by nude and bare wordes wythout wrytynge as by wrytynge That yf any of the parceners wil not suffre any particion to be made than may the other that wolde haue partition purchase a write called De partitione facienda agaynste them that refuse partition to compell the same to suffer partition to be made accordyngly and than by the iudgement of the courte the sheryfe by the seremente of twelue men shall make particion bytwene them and shal assigne to eche suster her porcion as he shall thynke good wythout gyuyng anye election to the eldeste And if two Manours of meeses descende to two susters and the maners be not of egall value than may she to whom the lesse maner is allotted haue assigned vnto her a rente proportionably out of the others maner Finally ye shall vnderstande that if a man be seased of landes in fee semple hath issue two daughters and giueth wyth one of his daughters to an other man that is to mary her the thirde or fourth parte of his lande in franke mariage and dyeth if in thys case the daughter that is in this wise auaunced wyll haue her porcyon of her fathers heritage she muste putte her lande gyuen vnto her in francke mariage in hochepot newe agayne I meane she must be conteÌ„ted to suffer her sayde landes to be commixte and mengled wyth the other landes of whyche her father dyed seased in fee simple so that an equall diuision maye be made of the hole or elles she shall haue no parte of those landes of which her father died seased But if her father had made vnto her but a common gifte in taile or a feffemeÌ„t in fee she shulde not nede to put her landes in hochepot but may retayne them styl also haue as good a part of the rest of the landes of which her father dyed seased as her other sister or sisters For a gyfte in francke maryage is accompted the moste free or moste liberall gyfte that can be and that whyche the lawe iudgethe to be onelye for the aduauncement and be stowynge of the daughter where as feffementes in fee and also common giftes in taile be accustomably for other causes and for the aduauntage rather of the gyuour or feffour then of the taker Of condicions FOrasmoche as euery estate is either pure or condicionall it were not amysse somwhat to make a declaration of the nature and efficacye of condicions Wherfore ye shal vnder stande that of condicions some be actuall condicions be called expresse condicions or coÌ„dicions in dede and other some be coÌ„dicioÌ„s in law whych be called also in latine Condiciones tacitae siue condiciones implicitae bycause they be secretely implyed by the lawe and not expressed Condicions in dede be such as be knyt and annexed by expresse wordê to the feffemente lease or graunter either in writing or without as for exeÌ„ple if I infeffe a man in certayne landes reseruynge to me to my heires so moche rente yerlye to be payde at suche a feast and for defaute of payment that it shal be lawfull for me to reentre thys is a feffement vpon condicion of paymente For the not payment of the rent shal dissolue the fefment Semblably it is of gyftes in tayle leases c. But yf the condicion be that for defaulte of paymente of the rent it shal be lawfull for the feffoure to entre agayne in to the landes and to holde them tyll he be satisfied of the rente this condition not performed dothe not dissolue the feffement but only gyueth to the feffour an authorytie to reteine the landes as it were by way of distresse tyll he hath leuyed the arrâ—ragyes of the rent And ye shall obserue that condicions be somtyme made to be performed on the feffees behalfe and somtyme on the feffours behalfe On the feffees behalfe as whan I infeffe you of landes vpon coÌ„dicion that ye shall do suche an acte as to pay vnto me or to myne heyres such annuall rent On the feffours behalfe as whaÌ„ I make a feffement vnto you vpon coÌ„dicion that yf I pay or cause to be payde vnto you before suche a daye suche a somme of money than it shal be lawfull for me to entre agayne retein my landes in my former estate In this case ye that be the feffee are called tenaunt in morgage which is as moch to saye as a dede gage and it semethe that the cause why it is so called is for asmoche as it is doubtfull whether the feffoure wyll pay at the daye prescribed suche somme of monye for the redemption of hys landes or no for if he do not his title or intresse in the landes thus gaged oppignorated is vtterly extinct with out all hope of renuynge Ye shall note that yf the morgageoure dyeth before the daye of payment hys heyre maye redeme the laÌ„d very well euen as well as his auncestoure that morgaged the land might haue done although there be no mencion made of heyres in the wrytinge And yf whan the monye is lawfully by the morgageour or his heire profered and the feffee refuseth to receyue the same the feffoure or hys heyre maye entre and then hath the feffee no remedy for his mony at the common lawe Ye shal vnderstaÌ„d also that some condicions be vtterlye voyde in the lawe and of none efficacy or streÌ„gth as if a
sayd termes according to their leases agaynst suche recoueries euen as yf none such had be suffered In whiche case neuertheles the recouerer after such recouery had shal haue lyke remedy against the termers by auowry or action of dette for rentes and seruices reserued vpon the same lesses being dew afore the same recoueries and lyke actions for waste done after the same recoueries as the lessours myght haue had if no such recouery had be had Furthermore no statute staple statute marchant nor executioÌ„ by elegit shal be herafter auoyded by any such fayned recouery but like remedy shal be had to auoyd and falsefie the said recoueries as by the premisses is ordeined for the fermour or lessee for terme of yeares ⧠An acte for auoiding of recoueries by collusion against tenaÌ„tes for terme of lyfe aÌ„ 32. HeÌ„ 8. WHere diuerse persons being seased of landes tenementes and hereditameÌ„tes as tenaÌ„tes by yâ— courtesy of Englande or otherwise onely for terme of life or liues haue heretofore suffred other persons by agremeÌ„t or couin betwene them had to recouer the same against them in the kinges court by reason whereof those ê‘sons to whome the reuersion or remainder thereof hath belonged haue after the dethes of the same particular tenantes bene driuen to their actions for the recontinuance and obteyning of the said landes and tenementes so recouered to their greate importable charges and expenses and somtime haue bene clerely disherited of yâ— same it is therfore inacted that all suche recoueries herafter to be had or prosecuted by agrement of the parties or by couin against any suche particular tenant of any landes or hereditamentes wherof the same particular tenant is or herafter shal be seased as tenaÌ„t by the curtasie of England tenant in taile after possibilitie of issue extincte or otherwise for terme of lyfe shal from hensforth as against such persons to whoÌ„ the reuersioÌ„ or remainder therof shal then appertayn ageinst their heires and successours be clerely voyde and of none effecte Prouided alway that this act shal not extend to any person that shal hereafter by good title recouer any hereditamentes without frawde or couin against any such partituclar tenant by reasone of any former right or title nor to auoyd any recouery hereafter to be had against any such particular tenaunt by thassent and agrement of those in the reuersion or remaynder so that the same assent and agrement do appere of record in the kinges court ⧠Of discontinuance IT is called a discontinuaÌ„ce by the lawes of Englande when he that hath the possession of landes or tenementes for the time present yet not hauing the fe simple in himselfe nor in his own right only maketh an altâ—enation of the same laÌ„des to an other person by reasoÌ„ wherof he that shuld haue them after him and which then hath right vnto them can not entre into them but is driuen to his remedy by wey of action in such wise that the sayd landes be not vtterly shifted and gone troÌ„ such person of persons as haue right vnto them but be aloÌ„ly discontinued for a time til the person which after the death of such discontinuer hath right vnto them do recoÌ„tinew bring them home againe not by entrye but by sute and wey of action As for exemple if tenaÌ„t in taile of certaine landes doth infeffe an other in the same in se simple or fe taile and hath issue and â—peth his issue can not entre into the landes though he hath title and right vnto them but is put to his action whiche is called â— formedone in the descendre And if such tenaÌ„t in taile which maketh such a feoffement hath no issue at tyme of his death it is yet neuerthelesse a discontinuance to him which is either in the reuersion or in the remaindre so that neither th one nor thother can entre but they be driuen to their action he in the reuersion to his formedone in the reuertir and he in the remaindre to his formdone in the remaindre In like maner if a bishop doth aliene landes which be parcel of his bishoprich and dyeth this is a discontinuance to his successour forasmoch as he can not entre but is driuen to his writ of entre sine asseÌ„su capituli Semblably if a Deane be sole seised of laÌ„des as in yâ— right of his deanrye and maketh suche an alienation this is a discontinuance to his successour Also if the maistre of an hospital alieneth certaine laÌ„dâ—s of his hospital this is a discontinuaÌ„ce and his successour can not entre but is put to his writte de Ãngressu sÃne assensu coÌ„fratrum sororum But if a persoÌ„ or vicare of a church will alien any landes or tenementes whiche be parcell of his glebe landes to an other in fe simple or in fe taile and dyeth or resigneth his benefice this is no discontinuance to his successour but that he may very wel entre not wtstandinge suche alienation made by his predecessour The cause of this difference Master Litletonne doth largely declare in his boke of Tenures which to auoid ê“lixitie I here omitte and remitte you to him Only of this one thing I wil admonishe you that in the .xxxij. yeare of this kingê most noble reigne it is inacted that no fine feffement or other acte to be made or suffred by the husband only of any landes or tenemeÌ„tê being the inheritaÌ„ce or frehold of his wife duringe the couerture betwene them shal be any discoÌ„tinuaÌ„ce therof or be preiudicial or hurtful to the said wife or to her heires or to such as shal haue right title or interest to the same by the death of such wife but that the same wife and her heires and such other to whom such right shall apperteine after her decesse shal may thaÌ„ lawfully entre into all such landes tenemeÌ„tes according to their rightes and titles therin ⧠That wrongful disseisin is no discent in the law inacted aÌ„ of wrongful disseisin 32. Hen. 8. WHere diuers persons afore this time haue by strength and wtout title entered into laÌ„des tenemeÌ„tes and other hereditamentes and wroÌ„gfully disseased dispossessed yâ— rightful owners and possessours therof so being seased by disseisin haue therof died seased by reason of whiche dieng sesed the parties yâ— were so disseised and dispossessed or such other persons as before suche discent myght haue laufully entred into yâ— said laÌ„des and tenementes be therby clerely excluded of their entre into yâ— said laÌ„des and tenementes put to their action for their remedy and recouery therin it is inacted that the diâ—g seased herafter of any such disseisour of any laÌ„des tenemeÌ„tes or other hereditameÌ„ts hauing no right or title therin shall not be taken or demed any such discent in the lawe for to take away the entrie of any suche persons or their heires whiche at the tyme of the same discent had good and lawful title of entre into the saide landes