hath the whole and by Title of Survivorship And therefore if I. D. for money by him disbursed Coo. Knights case 163. purchase lands to himselfe and others and their heires this is holden collusion within the Statute 34. H. 8. ca. 5. to avoid Wardship which may accrewe after the death of I. D. because he was never sole seised Coo. 9. Flopirs case 126. a. b. and so no title of Wardship could be after his death because of the Survivor Coo. 9. Flopirs case 126. a. b. But where to be joyntly seised of lands holden of the king in possession and not in remainder to them and the heires of the body of one of them and he that hath the inheritance dyeth his heire deins age the king shall have the Wardship and Marriage of such heire notwithstanding the Survivorship of the other Tenant And this is provided by the other Statute of 32. H. 8.17 in case of the king only and therefore in such case if the lands were holden of a common person there would be no wardship during all the life of the Survivor Ward where the Tenant dyeth seised of land in the very possession thereof by taking the profits c. This admits no difficulty and therefore in vaine to multiply cases thereof He in the Remainder upon an estate for life Coo. 2. Binghams 92. b. 33. H. 6.5 24. Ed. 3.33 B. Na. Br. 142. b Coo. 2. Binghams case 92. b. Coo. 9. Quicks case 129. b. Vet. Na. Br. Bro. Gard. 113. 4. H. 6.20 20. Eliz. Dy. 362. a. is not Tenant to the Lord untill the Remainder happen in possession and therefore if a man maketh a lease for life the Remainder to another in fee and he in the Remainder dies his heire being within age here during the life of the Tenant for life the heire of him in the Remainder shall not be in ward because the impediment is not removed but in that case if after the discent of the Remainder and before the death of the Tenant for life the Lord grant away his Seigniory and after the Tenant for life dies the heire of him in Remainder being under age neither the grantor nor the grantee of the Seigniory shall have him in ward If the Tenant make a gift in tayle the Remainder over in fee to another 4. H. 6.10 here the Tenant in tayle holds immediately of the chiefe Lord and he die his heire under age he shall be in ward to the chiefe Lord and so shall the heire of him in remainder in fee if the Tenant in tayle die without issue during the minority of the heire of him in the remainder because the impediment is removed by death But if an estate tayle be made of lands holden of a common person the remainder in fee to the King the Tenant in taile die his issue under age he shall be ward to no body because the Tenure and services are extinct by the fee simple being in the King who can hold of none And the estate of Tenant in tayle and the remainder over maketh both but one estate If the Tenant make a lease for life Vid. Na. Br. B. Gard. 113. or a gift in tayle leaving the reversion in himselfe he remaines Tenant still to his Lord and his heires shall be in Ward for the reversion because his estate never moved at all out of him and he is immediate Tenant so note the diversity betweene a Remainder and a Reversion So if the Tenant infeoffes A. who gives the land back againe in tayle to the tenant or to the son of the tenant Tenend de Capital Dom. yet the Tenant in tayle should hold of his Donor and he of his Lord Paramount and the heire of the Donor shall be in Ward to his Lord for the reversion and the heire of the tenant in tayle shall be in Ward to his Donor for the possession And for the same reason Coo. 2. Binghams Case 92. if the Tenant in tayle be with the reversion expectant to himselfe and his heires of lands holden by Knights service of a common person and he dies his heire within age he shall be in Ward for his body but not for his lands 24. Ed. 3.33 because betweene the estate tayle and the reversion stand two distinct estates in the tenant and the reversion only is holden immediatly from the Lord and not the estate tayle in possession but if the Case had been Tenant in tayle with the remainder to an estranger in fee there the heire of the tenant in tayle under age shall be in Ward to the Lord of whom the land is holden for body and land because the particular estate and the remainder make but one estate in Law and all is holden of the Lord immediatly But note that in the Kings Case if his Tenant make a gift in tayle and grant the reversion over or keepes the reversion expectant to himselfe in fee in these Cases and the like by some bookes the King may elect his tenant and there shall be a Wardship of the heire of the Tenant in tayle or of him in the reversion as his Majesty shall elect Stat. 34. H. 8. cap. 5. and this election shall binde him so that afterwards he cannot resort to a new choice but other bookes are contrary viz. that he in the reversion is only the Kings Tenant and he hath no election but by common experience of the Court of Wards they use to choose the Wardship of the best estate for the King and for the third part to bee in Ward upon the Stat. of 32. 34. H. 8. of Wills the words of 34. H. 8. are that the King shall have as well lands in taile as in fee simple If the kings tenant F. N. B. 142. d. 14. H. 8.16 or the tenant of a common person be disseised of his land and die so that a right only descend to the heire yet the heires being within age shall be in Ward for this right Coo. 3. Butler Bakers case 35. a. because after the disseisin the disseisee remaines still tenant to the Lord in right of Law So if tenant in taile make a feoffement in fee 48. Ed. 3.8 15. Ed. 4.10 br and thereby discontinue the taile and then dies his issue under age shall be in Ward to the Donor So where the heire under age recovers lands holden c. by a Br. de entrey sur disseisin writ of Cosenage for the action which descends he shall be in ward for this land so recovered because of the right descended to him Mes auterment est lou il recover by a writ which doth not descend as by a writ De dum non fuit compos mentis Yet where a possibility only descends as if a man covenant with the father to stand seised to the use of the father and his heires upon a contingent the father dies his heire under age the contingent happens It was held by the
holdeth of a common person Soccage lands he is a person having of lands within these Statutes because in the judgement of the Law he hath the land to many purposes and therefore devise c. by him of his other lands holden in Soccage is good only for two parts and his heire shall bee in ward c. for the third part If a man have only a fruitlesse reversion without rent expectant upon an estate tayle Coo. 11. Re. Henry Harpers Case 24. Coo. 10. Leon. Lowes Ca. 80. or for life of lands holden c. and devise but two parts of his other lands holden in Soccage a third part shall bee saved for wardships and primer seisin c. By these Statutes But if the first grant away this reversion Coo. Leonard Lowes Ca. 81. then he may devise all his Soccage land because at the time of the devise hee is no person having c. But if he that hath a remainder c. expectant upon an estate taile or a lease for life of lands holden c. deviseth all his Soccage lands and dies before his remainder shall fall into possession this devise of all is good because he is not a person having of such estate in lands holden c. as by the common Law yeeldeth wardship and therefore out of the purpose of the Statute and so note the diversitie betweene a reversion and a remainder upon the Reason of the Cases thereof before Title Marier Inheritances which of their nature are not of any certaine yearely value 5. H. 7.36 Coo. 10 Leon. Lowes Case 82. a. as a Franchise to have felons goods Court Leetes waifes estraies advowsons c. holden of the king c. shall restraine the owner thereof to devise a third part of his Soccage land because he that hath these is a person having hereditaments within the meaning of these sttatutes But where a man hath Soccage land Cars Case 29. Eliz. cited in Coo. 3. But. Bak. Case 30. b. a. and hath also a rent hat was holden by knights service in Capite extinguist in his Tenancy he may devise or dispose of it by act executed all his Soccage lands and there shall be no wardship of a tierce part because that the rent being extinct he was not a person having thereof at the making of his last will c. So where the husband and the wife be both Jointenants of an estate in Fee after coverture Coo. ibid. Stat. 34. H. 8. the husband shall not be said a person having of this land Coo. 8. Re. Wights fo 163. b. because hee alone is not owner of this land and so generally he that shall be said a person having of land holden c. to be within these statutes must be sole seised and not joyntly with another Thirdly as these words are in these statutes having lands doe import sole ownership of the land holden Coo. 10. Leon. Low Ca. 82. b. so they doe also import and appoint the time of such ownership to be the same instance when hee makes disposition or devise of these lands so that the time of having holding and disposing ought to concurre where if a man convey to his yonger or to his wife c. his lands holden c. in Fee simple Coo. 11. Re. Harpers Case 24. a. either absolutely or with power of Revocation having a third part which is Soccage land to discend and after purchase more land holden in Soccage he may devise all his new purchased lands because at the making of his will he had no land holden c. So if a man have Soccage land and convey it as Joynture to his wife c. and afterwards purchased lands holden Coo. 10. Leon. Low Ca. 83. b. c. and devise two parts thereof and dieth his heire under age no part of the Soccage land shall be taken to make a third part of the whole for watdship c. because when he made the conveyance of the Soccage lands he had no lands holden and therefore the conveyance good for the whole But if a man having soccage land of 20. li. yearely value deviseth it to his yonger children or to a stranger and afterwards purchaseth land holden of the yearely value of 20. li. and dieth the devise is not good for all the soccage land because the VVill tooke not effect before his death and before the land holden c. See now the difference betweene the last Case of conveyance by Act executed and this of devise But if a man having land holden in Fee and soccage land Coo. 3. But. Bak. Case deviseth this soccage land and after hee aliens his his land bona fide this divise is good for all the soccage land Coo. 10. Re. Leon. Lowes Case 84. a. t. because when the VVill tooke effect he had no land holden to cause a wardship or Primer seisin Fourthly it is to be considered who shall be said to be a wife or a child to be within these Statutes to be advanced and then what estate shall be said an advancement of such wife or children A disposition for the advancement that a man intend to marry Coo. 8. Virgill Parkers Case 173. b. though at the time she be no wife if after he marry her she is made a wife within the intent of these Statutes as if at the disposition made she had had him If by Act a man disposeth of all his lands holden to his bastard 14. El. Dyer 313. b. Coo. 10. Leon. Lowes Case 83. a. t. Coo. 6. Report Sir George Cursons Case 77. a. or to one of his collaterall blood not being his heire apparent or to his grandchild in the life of the father these Statutes give no wardship nor Primer seisin of a third part no more than if the deposition had been to a meere stranger bacause these are not children in judgement of law and then the conveyance remaines as it was at the common Law good to all because the Statutes provide for wardships or primer seisin but where the conveyance is made to a childe But if after the fathers death the grandfather conveieth the land to the use of any of his children there shall be wardship c. for a third part because by the fathers death the care of the children is cast upon the grandfather by the law as of his owne children and therefore they are to be taken children within the statute Then to see what shall be said an advancement of such wife and children if the land conveighed to the wife and children by the said father or grandfather be levied to her her husband to her use of the wifes lands therefore there shall be no third part in ward Coo. 9. Floyers Case 126. because this conveyance is no advantage to her in regard the land was originally hers and moved not from her husband therfore out of the statute So if a man convey land to his
hath wardship and primer seisin of a third part and then the first son dyeth without issue the King or Lord shall not have the benefit of the Statute against the son in the remainder for the Statutes doe extend to the first son advanced only if he survive the father and then be owner of the land Wherefore if a man have lands holden 20. El. Calthrops Case cited in Coo. 3. Re. But. Bak. Ca. 31. a b c. of the yearely value of 20. li. and Soccage lands of 10. li. yearely value he may devise all the lands holden c. and leave the Soccage land only to descend for wardship and primer seisin and the Statutes are satisfied and the heire shall sue Livery for one of the acres holden c. though no land be descended to him if the land be holden of the King by Knights service in Capite So if a man have land only holden Coo. 10. Leon. Lowes Case 84. b. c. And conveyeth the whole for advancement of his wife preferment of his children and afterwards purchase so much land in Soccage as amounteth to the third part of the land holden and leaves this to descend this Statute is satisfied and the conveyance is good for the whole land holden c. And note Coo. 10 Leon. Lowes Ca. 84. that to make wardship upon these Statutes the estate of the Lord holden ought to continue after the Tenants death And therefore if a man have an estate tayle only of land holden and hath Soccage and dyeth without issue so that the estate tayle is spent the devise is good for all the Soccage land so if the land holden be defeated by condition after the Tenants death And so the estate of the Tenure ought to continue after the death of the Tenant Coo. 3. But. Bakers Case 34. b. wherefore if the King gives land to one and his heires to hold during the life of the Patentee by Knights service in Capite and after his death in Soccage or E converso here shall be no wardship or primer seisin neither by the common law nor by these Statutes because in the first case the Tenure continues not after the Tenants death and in the second case the Tenure to make a wardship commenceth in the son only Collusion to avoid Wardships IF Tenant enfeoffe his son and heire apparent St. Marle b. ca. 6. Plo. Com. or his collaterall heire apparent to make him have an estate in land as a purchasor and so to beguile the Lord of his wardship because the heire comes not to the land by descent this is collusion apparent and manisest against which by the Statute of Marleb made Anno 32. H. 3. It was provided that the Lord shall notwithstanding have the wardship of his heire There is also collusion which is not so manifest as when the Tenant enfeoffes others upon collusion between him and them had for the benefit of the heire and to prevent his wardship and this collusion is averable against which also this Statute of Marleb provideth To instance in particular cases what shall be said collusion within these Statutes of Marleb and what is not is needlesse because the cases thereof are too many for this Treatise as for that by the said Statute of 34. H. 8. cap. 5. a more ample provision is made against Collusion then was by that former Wherefore before the statute of 34. Inst fo 78. a. H. 8. if the father had stept but a little further and had made a Feoffement to his sonne and heire and to a stranger although the inheritance were limited to the heires of his heire and that the stranger had but an estate for life Or if the Father had made but an estate for life or taile to his sonne and heire 27. H. 8.10 and limited the remainder and granted the Reversion to another or had left the Reversion in himselfe or if the father had enfeoffed a stranger for the advancement of his younger sonnes or of his daughter or for the paiment of his debts and after doe enfeoffe his heire in all these cases the Lord had beene prevented of the wardship of his Tenants heire and he not helped by the Statute of Marleb because those conveyances were in judgement of the law no Collusion neither apparent nor averable within the intent and meaning of the said Statutes But now by these Statutes of 32. Coo. 6. Sir George Cursons case 76. H. 8. in all these cases and the like Collusion may be averred for a third part of the Land so conveyed and the conveyance pro tempore avoided Re. 8. Rep. Wignts case 163. Inst 78. a. or the wardship primer sesin in case of land holden of a common person and for wardship of primer sesin in case of land holden of the King for a third part of the land but as these Statutes in many other cases gives remedy to the King and other Lords where they had none before so in other cases these Statutes give the Tenant benesit where he had none before And therefore where the King Coo. 8. Wights case 3. 164. b. Coo. 10. Leon. Lowes case 82 83. or the Lord by the Statute of Marleb might take advantage by Collusion apparent or where the Tenant conveyes the land to his sonne and heire under age of an estate in fee simple might have had the whole land so conveyed by fraud in ward now by these Statutes because they did enable him to convey the two parts for preferment of his childe the King shall have but a third part in such case this Statute of 34. H. 8. cap. 5. concerning Collusions to this purpose that if the Tenant being seised of an estate of inheritance doe by Act executed in his life time convey by covin to any person his land holden c. for or with divers Remainders over in Fee to a stranger or to his owne right heires or shall make by fraud contrary to this Act any estate conditions mesnalties tenures or conveyances to the intent to defraud the King or the Lords of these wardships c. which ought to come to them after their tenants death by force of this Statute and of the Statute of 32. H. 8. the said estates and conveyances being found by Office to be so made by covin There the King shall have the wardship and other profits 2. 3. Eliz. Dyer 193. c. according to the intent of the said Statute as though no such estates had beene made untill the said office be lawfully undone by traverse or otherwise and other Lords shall have their remedy in such cases as their wardships of body and lands by the Writ of Wards and shall distraine and averre for their reliefes heriots or other profits as if no such estates had beene made But observe 10. Eliz. Dyer 276. Re. 8.165 a. Wights case that it is adjudged upon these Statutes of 32. H. 8. and 34. H.
E. 4.12 Stam. prerog Rs. fo 8. are incident not only Ward Marriage Primer seisin Reliefe Livery and Licence to alien but also Prerogative to Wardships and Primer seisin of all other Lands holden of common persons in Knights service or in Soccage and of all other services whereof the Tenant in Capite dyed sole seised in Fee and Fee taile in his owne Right or in the Right of his wife in Possession Reversion Remainder or in Right which descended to the Kings Ward and not to any other customary heire 12. Ed. 4.18 as the younger sons in Gavellkindes c. Except the Lands holden of the Archbishop of Canterbury the Bishop of Duresme between Tyne and Tese and the Lords of the Marches where the Kings writs runneth not which they had in Anno 17. Ed. 2. 17. Ed. 2. Meues case 133. Sta. 17. Ed. 2. Stam. pre Rs. 7. b. 6. H. 2. Gard. 105. But the body is not wherefore the King shall have that against all men but the King shall have no Prerogative in the Lands of the second Ward which he hath by reason of Ward as where one that held of the Kings Ward was never seised of those Lands nor of the service they were holden by And the meane Lords whose Fees the King hath in Ward by his Prerogative shall have their Rents by which such Lands were holden during the Minority payed to them by the Kings Officers appointed to receive the profits of the Land holden of the other Lord upon request and tender of an Acquittance to the said Officers As by this Tenure the King hath Prerogative in case of Ward so also he hath the like Prerogative of Primer seisin which see after Title Seisin Soccage in Capite THE Tenure is described in the last Title Coo. 6. p. Wheelers case 7. the service that this Tenure is knowne by is generally where the Tenant holds by certaine services not by knights service for all manner of services as Tenend de nobis per fidelitatem tantum or by homage and Fealty or by Fealty and rent or by homage fealty and rent or by a red Rose or the like pro omnibus servitiis and although in the last example nothing be said of Fealty Lit. fo 36. a. yet it is implyed by the Law as incident to all manner of services More speciall soccage in Capite is petty Sergeancy which is where a man is bound by his Tenure to render yearely to the King a Bow a Sword Gauntlet or such like small matter touching the War To Soccage in Capite are incident Stam. praer Rs. cap. 3. fo 13. b. Reliefe Primer seisin and Livery and licence to alien whereof in these small Titles Common Knights service of the King IT is where land is holden of the King as of some Honour Castle or Mannor per servitium militar expresly or implyedly by construction of Law upon ambiguous words This Tenure gives the King Ward Marriage Reliefe Livery but no Primer seisin nor licence to alien nor hath the King hereby any prerogative to have other lands holden by the Kings Tenant of common persons into Wardship But yet the King shall by his prerogative have the Mariage of such Ward of whom soever he holdeth besides Stam. praer Rs. fo 10. 24. Ed. 3.31.6.5 though his Tenant were enfeoffed of the lands holden of his Maiesty after he was enfeoffed of his lands holden of others without respect of the priority of feoffement which alwayes prevailes amongst meane Lords whereof more fully afterwards in Title Marriage Common Soccage of the King IS where Land is holden of the King as of some Honour Castle or Mannor by the services mentioned supra Title Soccage in Capite This Tenure yeelds a Reliefe but no Wardship to the King Marriage Primer seisin c. Ward THe Tenure by Knights service had his originall Creation for the defence of the Kingdome Lit. fo 20. binding the Tenant to serve the King or other Lord to whom he is Tenant in the Kings warres for a certain time to the quantity of his Terme and therefore that the Common-wealth should not be unserved the Law gives the King Lit. fo 22. or the other Lord custody of the heire Male of such Tcnant being under age of one and twenty yeares at the death of his Ancestor together with the profits of his Land till the same age And of the heire Female Lit. fo 22. under the age of fourteen yeares at the death of her Ancestor and unmarryed together with the profits of her Land untill her age of sixteen to the end that he may provide himself of a man able to doe him Knights service But if the heire Female be marryed at the death of her Ancestor then her Land only shall be in Ward but till her age of fourteen yeares because those two yeares after fourteen are given only to make tender of her marriage which is already done And if at her Ancestors death she be fourteen yeares old Lit. fo 22. Bro. Gard. 86. Ac. 35. H. 6.52 then there shall be no Wardship neither of her body nor Lands because at that age shee may have a husband able to doe Knights service and that is her full age to be out of the Ward by the Common Law 35. H. 6.54 and the other two yeares are given in favour of the Lord. But when lands that are holden of the king or other Lord descend to an heire male or female in the life of the father from some other ancestor as from the grandfather c. of the mothers side the mother being dead Lit. fo 25. Coo. 3. Ratch case 38. Coo. 6. Re. Ambrosia Gorges case 22.22.6 re N. B 143. o. Lit. fo 114. though the Lord shall have the Wardship of the land yet the law of nature gives the father the Wardship of the body of such heire with this difference in case of an heire female that he shall have the Wardship of her body till he have a son and then the Lord shall have it because by the birth of the son he is become heire apparent and this priviledge is given to the Father but for his heire apparent which now she is not in those cases the grandfather shall not have the Wardship of his grand-childe if his father be dead touching the kings prerogative to have Wardships of his lands that his Tenant by knights service in Capite held of another Lord See before Title Tenure in Capite by knights service and more in Stamf. exposition of the kings prerogative cap. 1. So the essence of Wardships is requisite that the Tenant die sole seised of lands in possession Remainder or Reversion or in right holden in knights service and a descent to their heire for if men be joyntly seised in fee or in fee tayle and one of them die his heire under age he shall not be in Ward because the Lord hath his Tenant alive viz. the Survivor who
title to the thing he seised there judgement is given that the Kings hands shall be amoved and thereupon the writ of Amovcas manus or Ouster le maine is awarded to the Escheator By the Common Law the Ouster le main was never awarded Vna cum exitibus though it did so plainely appeare that the King ought not to have seised Art Sup Ca. 19. 29. Ed. 1. Statute de Escheator but this was the helpe by two Statutes in the 28. and 29. yeares of King Ed. 1. by which was provided that where land is seised into the Kings hands without just cause the profit thereof in the meane time shall be wholly restored to him that ought to have had the land and hath received the dammages upon Ouster le main cum ixitibus But if by the same Stat. of Ed. 1. it is provided that if after such Ouster le main cum exitibus a title doth appeare for the King in Chancery Kings Bench Exchequer c. whereby the King is intitled of a title growne before the Ouster le main although the party could have had no Ouster le maine if the Records had then appeared without avoiding them yet in that they did not then appeare he should not be now cast out of possession without a Scire facias against him upon which if he be warned and doe not come or commeth and say nothing against the Kings Title the land shall be reseised and the King reseised the King answered of the profits from the time of the first office though this Statute make no mention of Livery but only of Ouster le maine yet by equity Liveries are taken to be within the meaning thereof And here note this difference that in the cases last mentioned no seisin shall be before Scire facias and against the party yet in the case above and Title Liveries of a livery the King he may reseise without office whereof see at large Title Reseisor in Stamf. prae Rs. 856. Office AN Office is an Inquest by twelve men at the least taken before the Escheator assisted with the Feodry or the Commissioners of things which convert the Kings revenue to finde his Title and as a matter of Record requisite bv law to give the King an actuall and perfect seisin or possession of the thing whereof the office is found as of Escheators Wards land forfeited or aliened without licence and the like To pursue which Descriptions OFfices concerning Wardships 4. Ed. 4.24 33. H. 8. c. 22. of which only I speake the Escheator may finde as well by office as Virtute brevis but with this difference Added by Statute that if the land whereof the office is to be found bee of 60. pound yearly value or above and holden of the King the Escheator forfeits 5. pounds if hee finds any office thereof without the Kings writ directed to him for that purpose Writs or commission in nature hereof whereupon offices are to be found may not be made out of the Chancery or other Court having authority to make the same but by warrant or bill signed by the Mr. Survey or of the court of Wards 33. H. 8. ca. 12. or one of them directed to the Chancellour or officer having power to award the same writs Such or the Commissions are the diem clausit extremum Mandamus devenerunt Co. 8. p. Stoughtons Case 169. quae plura Melius inquirendum datum nobis intelligi the severall natures whereof in what cases they be so see Title Livery To which may be added that after the diem clausit or a mandamus awarded an office found there shall goe forth no more writs of the same kind to enquire further therefore at the instance of the same party But where the office is imperfectly found against the King in such case the King cannot traverse the office as a subject may upon surmise in the Court of Wards that the lands are of greater value that they are holden of other services that the Tenant was seised of another estate that these are more heires or other heires then were found in the first office or where by the first office the heire was found within age where indeed the Tenant dyed without heire so that the land ought to escheate or where by the first office one is found heire of full age where he was under age and generally where his highnesse hath a better Title then was found for him by the first office a Melius inquirendum may bee awarded in the Kings behalfe But in good discretion Co. 8. Paris Stoughtons case 169. no Melius inquirendum should be awarded after a perfect office found against the King without view of some record or other pregnant matter to intitle the King If upon the Melius inquirendum the office be found against the King Ibidem 169. b. he shall not have a second Melius but is found by the office even as a subject as against whom his traverse wch see Title Traverse And note that upon the last office upon the melius makes the first office void 12. Eliz. Dyer 2 â—2 Stat. E. 6. Cap. 8. as if upon the diem it be found that the land was holden of the King sed per quae servitia Iur. ignorant And thereupon the Melius awarded it is found that the tenure of a subject and all other points uncertaine as the Tenure the State the Value c. the first office is void When such inquest is found for the King 21. Ed. 3.2 this finding is called an office and it is a Title for the King whereof the Inquest was taken of such validity that when the King is once seised by office the seisin the office remaines till it bee discharged by matter of as high a nature as the office was 1. H. 7.19 viz. matter of Record namely a Livery or Ouster le maine But if an office found for a subject 21. Ed. 3.2 it makes no Title for him but is and may be used as matter of evidence to prove his Title An office is sufficient to entitle the King Stat. 1. H. 8. Ca. 8.3 H. 8. Ca. 22. Coo. 1. p. although it be never returned for if it doe appeare by the examination of the Escheator that hath upon such office seised the lands into the Kings hands it is sufficient But offices are usually returned if they be found by Writ or Commission into the Chancery whence the Writ or Commission issued Alton Woods 42. Coo. 4. p. Sadlers case 5.7 18. El. ca. 12. and from thence to the Clerkes of the Bagge transcripted into the Exchequer and into the Court of Wards but offices found Virtute officii without any Writ or Commission the Escheater may at his choice returne them either into the Chancery or Exchequer And if they be found in the County Palatine of Lancastar Chester or Durham either by Writ or otherwise they are to be thence transcripted into the Court of
grant thereof made by the King to restore the ancient Tenure of the Subiect and if a grant had beene made otherwise hee of whom the lands were holden before had his remedy by petition to the King If the King purchase a Mannor of which I. S. holds hee shall hold as hee held before and shall not sue Livery nor pay Primer seisin nor hold in Capite To hold of the King by graund Sergeancy is Knights service in Capite by petty Sergeancy is Soccage in Capite whereof more in the following Title To hold of the King by Castle-guard Lit. 34. b. Coo. 2 p. Cromwels case 81. Lit. 266. is Knights service in Capite but to hold by certaine Rent for Castle-guard is but Soccage But by Fitz Harberts natura brevium a Tenure of the King Coo. 4. Luttr case 88. b. F. N. B. 256. a. Stam. praerog 29. b. as of an ancient Honour by certaine rent for the keeping of Dover C stle is taken to bee Knights service in Capite but this seemes no Law Note that there must of necessity bee a Tenure of all Lands in the hands of Subiects Coo. 9. p. Ant. Lowes case 123. wherefore if the King grants or releases the service of his Tenant by Knights service c. to his Tenant and his heires this cannot extinguish the Tenure wholly but that fealty shall remaine for necessity of Tenure 26. H. 8.9 As in graunts so in offices found after the death of the Kings Tenant to entitle the King or Lord of a Wardship the words of the office directs what the Tenure is and therefore before the Statute of 2. E. 6. cap. 8. if an office had beene found that one held of the King generally Sed per quae servitia Iurat ignorant this was taken for a Tenure by Knights service in Capite because where the Tenure is uncertaine the best shall be intended for the King And for the same reason an office finding De quo tenetur Iurator ignorant this was taken for Tenure by Knights service in Capite because where the Tenure is uncertaine the best shall be intended for the King And for the same reason an office finding de quo tenetur jurat Ignorant was taken for the immediate Tenure of the King and was sufficient to entitle the King to a Wardship but by the said Statute it is provided that in the first case Stat. 1. Ed. 6.4 it shall not be holden for a Tenure in Capite and in the second place no immediate Tenure of the King but in such case a Melius inquirendum shall be awarded howbeit if upon the Melius inquirendum the same be so again uncertainly found the best shall be intended for the King viz. a Tenure in Capite by Knights service There are also Tenures by collusion or estoppell 7. E. 3.37 as when a man seised in Fee simple of Lands holden of a common person hath sued a Livery or Ouster le main of the same out of the Kings hands or hath confessed by any matter of Record a Tenure in chiefe of the King this makes the Land holden of the King of whemsoever it was holden before and the King shall have wardship by reason of this Tenure Tenant in tayle generall holds of his Donor in such Knights service as hee holds Ouster of his Lord 38. E. 3.7 2. Ed. 4.5 1. Ed. 2. de militibus Nevell yea although upon the gift made the Land be given Tenend de capital dom yet such a cause shall not alter the Tenure but that hee shall still hold of his Donor Twelve plough Land being every one of them anciently of the yearely value of five nobles make a Knights Fee worth per ann 20. l. which was anciently accompted sufficient maintenance for a Knight thirteene Knights Fees and a third part being 400. markes yearely value made a Barony Re. 9.124 Ant. Lowes case Inst fo 69. a.b. twenty Knights Fee of 400. l. yearely value made an Earledome and according to the same proportion 800. markes a Marquesdome and 800. l. a Dukedome the fourth part of which is paid the King for a reliefe viz. of a Knights fee 5. l. and so of the rest To hold of the King in Fee Farme Mag. Cart. cap. 27. 20. E. le case Inhabitant de Sassron Walden is a Soccage Tenure and yet this Tenure shall yeeld no reliefe because the Law intends that the Farme or Rent that hee payes for the Land is the full value of the land and recompences all other profits of the Tenure and this is the common experience of the Exchequer Tenures for the most part are either Knights service or Soccage Knights service is either in Capite of the King or in common Knights service in Capite is of two kindes one more speciall viz. a grand Sergeancy the other the generall service Knights service is either of the King as of some Honour Castle or Mannor or Knights service of common persons So Soccage is either in Capite or common Soccage in Capite more speciall as petty Sergeancy or more generall the common Soccage is either of the King as of some Honour Castle or Mannor which are species of ancient Demesne and Burgage of the King or Soccage of a common person There are also other Tenures as Frankallmoigne Tenure by Divine Service base Tenure as Coppy-holder Tenure by villenage of which I need not speake for the purpose in hand Of Knights service and Soccage Tenure of a common person I may likewise spare the description but of either of these much is said in the Title of Wards collusion and those that follow Tenure in Capite by Knights service IS properly where lands are holden of the person of the King and of his Crowne as of a seigniory it selfe in grosse 30. H. 8. Dyer 44. a. and chiefe above all other seigniories Improperly of him as of some ancient Honour annexed to the Crowne as Barkingsteed Newland Rawleigh Stat. praerog Rs. fo 29. b. the Abbey of Marle c. And this description is understood as well of Knights service as Soccage in Capite Knights service in Capite is denoted either by expresse words as Tenend de nobis per servitium militare or improperly by construction of Law upon uncertaine words as in the cases supra Title Tenures The more speciall Knights service is grand Sergeancy Lit. 34. b. which is denoted by some particular service to be done in his own person to the King then the other requireth as to carry the Kings Banner Launce c. to lead his Hoast to be his Marshall to carry his Sword before him at his Coronation to be his Sewer Carver or Butler at his Coronation to bee one of the Chamberlaines of his Exchequer and divers other the like To Knights service in Capite 2.24 Ed. 3.47 C. Stam. prero Rs. fo 7. ib. 6. L. 2. ib. 12.6.5 Plo. Com. Fogags 17. 2. 13. H. 4.6 b. 22. H. 8. 5.
wife for life the remainder for one of his sons the remainder is no advancement to the sonne to give wardship either for the body or third part of the land by these statutes Ibid. Coo. 2. Binghams case 94. because the mother is the Kings tenant during her life by advancement and such a remainder which may give wardship of body and land at the Common Law is onely intended by the word Remainder in these Statutes which this Remainder doth not the reason is about the title of the ward But a remainder which is in part of a reversion Coo. 10. Leon. Lowes ca. 81. a. as if a man makes a lease for life or yeares and after grants the reversion for life or in taile le remainder in fee to his sonne and after the grant for life or Donee in tayle dies without issue it shall be said advancement within these Statutes and shall give cause of wardship of the body during the life of the tenant for life because this remainder by common Law Coo. 9. Holts Case 132. b. t. shall draw ward and marriage as also a revorsion doth in such case give wardship because he in reversion is immediate tenant to the Lord and not tenant in tayle or for life If the son and heire or any other son purchase land of his father bona fide for money c. this is no preferment for the childe within these meaning of these Statutes and therefore there shall bee no third part of these lands taken for wardship or primer seisin because it was land purchased by the childe and not given by the father to prefer him This Statute gives authority disjunctive to make a disposition either by act executed or by will of two parts of land holden c. And thereupon if a man by act executed in his life time dispose of two parts for the advancement of his wife Coo. 3. But. Bakers Case and preferment of his children and payment of his debts he cannot devise the third part thereof because he had executed his authority before but if hee had aliened two parts to a stranger bona fide then he might also devise two parts of the third part remaining because his alienation to a stranger is out of these Statutes If a man alien two parts for advancement of his wife Re. 6.18 Sir Edw. Cleres Case c. he may also make a feoffement of the third part to a stranger or he may make a feoffement of the third part to the use of his last will and by his will may declare the use of that feoffement to a stranger But here note that the land passeth by feoffement and not by will and that the will served but as a limitation of the use upon the feoffement and yet in that case a third part of the two parts first disposed of shall be in ward If a man by act executed conveyes two parts for life in taile for advancement of his wife 35. El. Clem. Howards Case cited in Coo. 10. Re. Leon. Lowes Case 81. a. c. he may also devise the reversion of the same two parts because the Statute gives him full power over the two parts to dispose it as he will by will or otherwise It is to be observed that these Statutes are to be expounded to save a third part for wardship and primer seisin when the advancement continues in the advanced without alteration either by descent or alienation and not otherwise Wherefore Coo. 2. Binghams Case 93. b. 94. a. Coo. 9. Holts Case 132. a. if the son advanced aliens bona fide or dies and the land descends to his heire in the life of the father that gave the land there shall be no wardship of a third part by these Statutes the same law is when the land is conveyed for the advancement of the wife or payment of the debts Whereas these Statutes serve to be in ward Coo. Re. 10. Leon. Lowes Case 84. a. m. c. lands to the full yearely value of a third part of the whole it is to be noted that the same value shall be accounted as the lands be of value at the Ancestors death The thing of a casuall and uncertaine value may not be left for the third part Coo. Leon. Lowes Case 81. a. t. R. 3.32 b. But. Bak. Case as a franchise to have felons goods and of fugitives and out of fines outlawes fines amerciaments which have not been accustomably let unto farme for yearely rent but if they have been so let then they may be left for the third part The King or the Lord ought to have his third part immediatly after the death of the tenant But. Bakers Case 34. and shall not expect upon any uncertainty wherefore if a man seised of three acres holden in Capite c. leaseth one acre for life and after deviseth the other two acres and dyes and after the tenant for life dies yet the devise is void for a third part of the two parts because the third part did not descend immediately to the heire In construction of these Statutes 35. H. 8. Bro. Testaments 29. an equality hath been used so that for the levying and making up of a third part saved by these Statutes parties alike interessed shall equally and alike be respected wherefore if a man have three severall Mannors holden of three severall Lords by Knights service Coo. 8. Virgill Parkers Case 173. b. every Mannor being of equall value he cannot devise two Mannors and leave the third to descend according to the generality of the words of these Statutes for then he should prejudice the other two Lords of their wardships but he must devise two parts of every Mannor and leave to descend a third part of every Mannor to make a wardship to every Lord. So if a man seised of land holden Coo. Virgill Parker 173. b. c. disposeth before mariage one moity for a joynture of his wife that shall be and after marriage disposeth the other for payment of his debts and legacies and the third part for the King as other Lords shall be equally taken out of both halfes and not out of the halfe last disposed So if the other deviseth the land Coo. 9.133 b. Mat. Menes Case to his eldest son one part and so to foure other sons like parts whereof one part only is holden c. the third of the whole shall be made up equally out of every severall third part of a younger brother a like quantity if the King or the Lord hath once the benefit of the Statutes against one son the Statutes are satisfied and he can have no further benefit therof against another-son as if the father convey land holden c. to one son in tayle the remainder over to another of his sons in tayle or in fee Coo. 9. Tho. Holts Case 132. a. and after the fathers death the King or the Lord
li. before office found before the Eschator or other Commissioners Stat. 33. H. 8. cap. 22. 14. Ed. 4.5 by vertue of the Kings Writ or Commission derected out of the Chancerie or other Courts that have authority to make such writs or Commissions for suing of Livery But Livery of lands under the yearely value of 5. li. may be by warrant made from the Court of Wards and Liveries be sued forth St. 33. H. 8. c. 22 although there had been thereof no office returned The reason of this is F.N.B. 253. Ib. in Stam. 52. that the King may be certainely informed by matter of Record who shall be his Tenant and whom he ought to make Tenant and this cannot be but upon an office or by a speciall Writ or Commission in nature of that Writ or Commission to enquire of all wards or the like And these Writs or Commissions are of two sorts These of the first sort are to enquire after the death of the Ancestor of what lands holden of the King 14. Ed. 4.5 or of others the Ancestor was seised at the time of his death the value the day when he died who is next heire and of what age of this kind are diem claus extremum which is sued within a year after the ancestors death Memorandum Stam. prae Rs. 52. F.N.B. 253. c. if there be no suite made within the yeare after the ancestors death and upon these writs the Jury ought to enquire who tooke the profits since his death Deneverunt Ibidem whether the Ancestor died in ward to the King Or Commissions of the nature of these Writs These of the second sort are such as issue upon some defect in offices and found upon the five first writs of this kind are Qua plura F.N.B. 255. where some of the Ancestors lands are left out Melius inquirendum Inquired upon some defect in the former office But if the heire were of full age at his Ancestors death and so found by office then he shall have Livery upon that office without any estate probanda Datum est nobis intelligi where after the delivery of the writ and before office found before the Escheator dieth or is removed from his place But now these Writs or Commissions since the erecting of the Court of Wards may passe out of the Chancery or other Courts having authority to make them Stat. 33. H. 8. cap. 22. by warrant or bill signed and subscribed by the Master Surveyor Atturney and receiver of the Court of Wards or one of them directed to the chancellor of England or other chancellor or officer having power to award such writs if upon office found upon any of these writs the heire be found under age and in ward after do accomplish his full age F.N.B. 254. a. 257. he must have a writ of Estate probanda to prove himselfe of full age before he shall have Livery But if the Tenant be found within age 13. H. 4.6 in ward and after his full age other lands descend to him which the King seiseth by an office that finds the heire of full age he must sue an estate probanda by reason of that office which found him within age which is the best Record for the King If generall Livery or Ouster le maine be not rightly pursued according to the order of Law Stam. prae Rs. 12. a. infra title Ouster le main the King may receive the land without any processe and shall be answered of all the meane profits from the suing of the Livery A livery is not rightly pursued according to the order of law when it is sued by percells 35. H. 6. Liv. 19 as if the heire sue Livery but of part of that which is found by office as where the Ancestor had lands in severall counties if the heire sue a generall Livery before office found in every county where he hath land omitting them in the Livery the Livery is void and the King may have reliefe whereof see a whole Title in Stamf. Praerog Regis fo 8.6 c. But in some case a Liverie may be sued of parcell 38. H. 6.9 a. as where land discends to two daughters one of the full age the other under age shee of the full age shall have the Livery with a partition sutable of all things and this Livery is well sued though it be not of all the land descended but things not severable as advowsons or the like must still remaine in the Kings hands till the other daughter be of full age And note Stam. prae Rs. ca. 5. fo 22. that between Coparceners the King upon the Livery alwayes makes partition and this is for the Kings benefit in that upon partition every one shall have a part of the land holden in Capite for if any of them should have for her part the lands holden of others only then the King shall lose his prerogative in that part for ever wherefore in the writ of Livery in such case there is a proviso that every of them should have for part parcell of the lands holden in Capite When two are found heires by one Title 1. H. 7.28 be they twins male and found heire by the same office divers men by severall offices are found heires to the same ancestor and by the same title there because it is doubtfull to the King to whom to make a Livery untill the certainty and the verity be discust betweene them then his highnesse ought to make a Livery to him that is proved to bee the true heire to the common ancestor the manner of this triall is by Interpleader and in what cases it shall be and in what not you may see at large in Stamf. prae Rs. fol. 51. 65. 66. b. The manner of suing a generall Livery may be seen in N. B. 258. viz. Samf prae Rs. 79. 80. and for this purpose see also the Statute 33. H. 8. c. 22. But at this day generall Liveries are out of use Stam. prae Rs. 67.2 Inst 77. a. and for the most part men use to sue speciall Liveries which contain in them a pardon for all entries intrusions issues profits and likewise to dispense with all misusings which may happen upon a generall Livery c. But these bookes must be understood where the lands are found in the office to be above 20. li. yearely value for otherwise generall Liveries are most in use Thus speak our books but by the common experience of the Court of wards and liveries since the Stat. of 33. H. 8. c. 2. are distinguisht and sued in this manner viz. A generall Livery under value which is when the land whereof Livery is to be sued is found by the office not to exceed 5. li. per annum and the lesse fees are appointed by the said Statute for the suing forth thereof A generall Livery above value viz. when the land is found by