feodaâ—â— for he is the first of a new Family who yeiâ—â— Homage and Fealty c Lit. l. 2. c. 7 ancient Fee is who the Feodary and his Ancestors time out 〈◊〉 mind have held such a Fee and here the Fâ—â—dists d Id. ib. new terms tit Hom. Auncest place a Medium between these two 〈◊〉 paternal Fee which comes by four degreese Discent and they define that to be the aâ—cient which discends from more e Duar. com in cons feod c. 4. n. 10. 10. Fiftly Fee is divided into ecclesiasâ—â—â—â— and Laick or Seculer Ecclesiastick is thâ— which is possessed either by Ecclesiastick persons or which belongs to Churches 〈◊〉 that which is held by Lay persons and cannâ—â— be possessed by Ecclesiastick and indeed 〈◊〉 Fees as with us laick unless they become â—â—ther by some speciall grant from the King which we call giving to Mortmain f Mag. Char. c. 36. 18 E 3. Stat. 3. c. 3. 15 R. 2. c. 5. Pol. Virg. l. 17. Eng. Hist 11. Sixthly Fee is distinguished 〈◊〉 Masculine and Feminine Masculine is thâ— which is given to the Feodary and the Heiâ— Males of his Body and of this kind 〈◊〉 those of Dukes Marquesses Earles Viscounts 〈◊〉 Barons for the most part Which 〈◊〉 defect of Heirs Males are extinguished 〈◊〉 return into the supremacy from whence â—â—ey Issued but these are at this day rather â—itles of Honour then Fees in regard they â—re for the most part conferred without 〈◊〉 â—emenine is that which may discend to â—â—e â—â—male Issue as when it is given indefinitely 〈◊〉 the Feodary and his Heires and so that or default of Heires males it may come to â—he females and their Issue g Bract. l. 2. c. 34. l. 1 c. 8. n. 4. 12. Lastly Fee is either pure or simple or â—onditionall Simple is that which is held 〈◊〉 a simple and perpetuall Right to the Feoâ—ary and his Heires for ever Conditionall 〈◊〉 that which is granted to the Feodary and â—uch or such Heirs for default of which it reâ—urns to the Donor and his Heirs and thereâ—ore he that hath Lands given to him and his Wife and to his Heires begotten of her in â—ase she dy without Issue before him is called â—enant in tail after hope or possibility of Issue â—xtinct For this kind of Fee with us is called fee-Fee-tail comming from the French word Tallier to cut part or divide as if we should say a Fee by some means severed or diminished h Lit. l. r. c. 1 1 Instit Jur. com c. 11. 13 13. And this kinde of Fee is double viz. Taile generall and Taile speciall Generall Taile is where a Fee is given to the Feodary and the Heirs of him lawfully begotten or to be begotten for in this case the Children of either Wife whether first second or third shall inherit speciall Taile is where a Fee is given to the Feodary and his Wife and to the Heirs of either of them l Lit. ib. Inst Jur. c. 12. West 2. c. 1. or according to some when it is given to him and his Wife and one Heir of their Bodys lawfully to be begotten and one Heir of that Heâ—â— only m Perk. 171 but this whether it be properly to be stiled a Fee for want of perpetuity may 〈◊〉 be doubted 14. Now a Fee is not limited to one Fâ—odary but may be possessed by more so thaâ— they are called Partners Joynt-Tenants 〈◊〉 Tenants in Common n Lit. l. 3. c. 3 Inst Jur. com c. 15. Partners are either by Law or custome by Law are Sisters Co-heires because the Heires Males being dead they equally succeed their Parents in the Fee o Id. c. 1. 3 by custome are Brothers in maâ—â— Counties especially in Kent from the Custome of Gavâ—lkind called so from the equality of apportioning the Inheritance p Id. c. 2. Joynt-Tenants are they which hold Lanâ—â— or Tenements by one and the same Title but not hereditary Tenants in common 〈◊〉 those which possess Lands or Tenements 〈◊〉 indiviso by divers Titles as in case one Co-Heire sells her part to a stranger he is not Joynt-Tenant with the other Partners but is called-Tenant in common q Id. c. 4. Inst Jur. com c. 15. 15. A Fee with us is not only of Corporall things but incorporall also for the custody of a Forrest r Vid. N. b. f. 6. Dyer f. 30. n. 209. Prison s Id. f. 41. or County t 28 Ed. 1. Stat. 3. c. 8. may be granted to one in Fee and the same may be said of an annuall Rent u Vid. N. B. foâ— 8. and of an advowson severed and not appertaining to any Mannor which we call an Advowson in gross w Lit. l. 1. c. 1. Bro. tit Tenures 105. now there are many services pertaining to a Fee which we shall mention in the next Chapter 16. There are belonging even as it were to the very nature of Fees Fee farm free farm and free Tenement Fee farm is a Tenure of Lands and Tenements granted to any one and his Heirs for a yearly Rent which equals the third x F. N. b. fol. 210. b. or at the least the fourth part y Old Tenure ver Fee farm of the true value without any other Services then what are expressed in a Charter of Feoffment z West part 1. symb 463. some affirm that a Fee farm can only be granted for the life of the Farmer and some will have it Fealty although not expressed a New terms of the Law in the Feoffment and others that reasonable releife b Bract. l. 2. c. 39. n. 9. is due of right from the Fee-Farmer to the Donor but the condition of this Tenure is such that if Rent be not paid by the Tenant for the space of two years then the Lord or Feoffer may recover the Lands to him and his Heires upon his action 17. Britton makes free farm where Lands and Tenements are so given that the nature of Fee by Feoffment is changed from Knights service to certain annuall Service so that there is neither Marriage nor Releife requirable nor any other service expressed in the Feoffment c Brit. c. 66. but I do not remember that I have read this in any other Author 18. Free Tenement or free-hold is where Lands and Tenements are held only for life of the Tenant and such a Tenant is said to hold In Dominico suo ut de libero Tenemento d Dyer f. 221. n. 19. f. 153. n. 10. But if it shall be said that Fee is naturally a Free-hold I shall not deny it only must add that it is also somewhat more because perpetuall e Inst Jur. com c. 10. Lit. l. 1. c. 6. Bract. l. 4 tr 1. c. 37. but of that Free-hold which is meant here there are two kinds One which is for tearm of life even by the very custome and Law the
Ancestor unlesse he be specially mentioned in the Instrument of Contract and have an Estate sufficient discending 2. Bracton d L. 2. c. 26. n. 1. Glan l. 7. c. 8. Plow fol. 418. makes this distribution of Chattells Viz. That Debts being paid the overplus should be divided into three parts whereof one to be left to the Children the other to to the Wife and the third at the will and pleasure of the Testator And if there be no Children then one halfe to the liberty of the Testator and the other to the Wife And if there be no Wife then one moity to the Children and the other as the Testator shall please But this rather seems to be Counsell then Law for a little after in the same place hee saith That neither the Wife nor Children ought to take more of the Goods of the Father or Husband deceased then what is particularly bâ—quâ—athed unto them except it be upon some speciall grace as having merited extraordinarily of him in his life time And he gives this reason namely because there would scarce be found any one who would endeavour to lay up much if hee should be compelled at his death to leave it to illiterate or debauched children or to an ill wife And therefore it is very necessary that in this they should have a free power for by this they prevent vice and encourage vertue and give occasion both to VVife and Children of well doing which could not be if they knew undoubtedly that they should have a certain portion whether the Testator will or not Of the instituting of Heires TIT. XIV THe Civillians and wee have a different acceptation of the word Heire for they call him an Heir whom the Testator nominates in his VVill a Inst de Testam ordinand And we him who is next of Kin to the party deceased to whom a Fee doth of right belong after the death of the Ancestor b Glan l. 7 c. 1. Brac. l. 2. c. 33. â— 3. Brit. c. 118 119. So that we affirm it is not man but God who makes Heirs c Glan Brit. ib. And that Here 's comes from Hereditate where succession is by right of Blood d Brit. ib. Nor do we call all the Estate of the party deceased his Inheritance but only his Fee or at lest those Lands tenements with all things corporal and incorporall which the Party deceased held by a perpetuall Right e Iidem ib. VVherefore it was necessity which in some sort constituted an Heir who as he was wont to succeed his Ancestor in the premises even against his will so was he obliged to pay his Debts if he had Assets sufficient and the Chattels did not suffice f Glan l. 7. c. 7. Brac. l. 2. c. 26. n. 1. as we have in part declared before 1. VVherefore an Heir with us doth not succeed to the universall Right of the Party deceased but to the Fee assigned only for as to the disposing of Chattels men nominate their Executors according to their pleasure g Glan l. 7. â— 6 Brac. ib. Dr. Stu l 2 c 10 who as to that part of the Patrimony supply the place of an Heire and represent the person of the Testator if at least they accept the Office h Bro Executors 5 21 22 57 77 84 122 so that they may convert all those goods which are not bequeathed to their own use i Plow 943 and take even the cloathes of the widow if they are more rich and sumptuous then the condition of the Husband would bear k Bro. ib 19 An Executor may also be ordained either absosolutely or upon Condition l Id. ib 9 administrat 1 45 and either from a certain time or after a certain time m Bro Exec 155 and either universally or particularly n Id ib 2 and 155 L Dier fo 3 4 n 7 8 and in the first degree or by Substitution o Id ibid and either one or more p Id ibid 13 24 38 117 3. And those may be Executors whom the Testator shall constitute whether they be strangers or Parents of Kinne or not of Kinne q Brac l 2 c 26 n 2 and not onely those who are free but Servants also and those whether our own or of others r Lit l 2 c 11 Bro villains 68 nor only Lay-men but even of the Clergy also and Religious s Bro ib 68 77 if they have the permission of their Superiors t Fitz. abrid Execut 47 so also may women u Bro. Execut throughout and Infants w Id ib 15 and in fine all who are not expressely forbidden by the Law x Glan l 7 c 6 4 4. Not that any one is against his will forced upon this office but that he that will may refuse and he who hath once refused may notwithstanding afterwards undertake it z Bro ib 38. 117 Perk 4 85. though according to the opinion of some he cannot during the life of his Co-Executor a Dier fo 160 n 42. but being once undertaken it cannot be laid down again and the undertaking of it seems to be when he doth under that name intermeddle with any of the Goods of the Testator b Id. f. 166. n. 10. 11. If an Executor die before the Will proved then Administration of the Goods shall be granted by the ordinary to the widow or next Kinsman of the Testator who shall be obliged to dispose of the goods of the Testator according to the Will unlesse the Remainder of the Goods after the payment of Debts and Legacies were bequeathed unto him for in this Case the Executors of that Executor may justly challenge Administration which the Will annexed c Id. fo 172 n. 8. Of the ordinary Substitution TIT. XV. Substitution is of no small use with us though we do for the most part in this follow the Precepts and Rules of the Civil Law yet we cannot so freely dispose of those fees which we hold by Knights Service by our Testaments but that we are obliged to leave a third part to the heir a 32. H. 8. c. 1. Glan l. 7. c. 7 but for those which we hold in Soccage not intailed b Brac. l. 2 c. 30. or tied by any particular Custome c Glan ib. we may bequeath them to whom we will whether to a Kinsman or stranger d 32 H. 8. c. 1. provided we hold no other Lands in Capite by Knights Service and in each of these Cases we may make Substitution either vulgariter as they term it or Pupillariter Now this Substitution is nothing else then the adding of a Condition which we commonly call Tail namely a limitation of Heires to whom we intend to have the Lands discend from the Testator or remain or otherwise revert to us and our Heirs 1. Yet is not this Substitution the same with that of the Romanes
although for the most part it leaves the Cases of wills to be tried by the Ecclefiasticall Courts according to the Rules of the Civil and Common Law yet are there certan particular Cases of Lands and Chattells really and which she hath reserved to her self and those with as much brevity as we can we shall sum up 2. And in the first place all may give Legacies who are capable of making wills and who they are we have formerly mentioned but no man can rightly bequeath Lands or Tenements who hath not the possession of them at the time of the making of the will b Fulb. Par. e. Devises fo 37. a. 32. 34. H. 8. which is to be understood if no other person be not also in possession in his right or name for one may bequeath a Reversion 3. All men also are capable of Legacies who are not especially excepted by the Law which are religious persons and persons not yet in being although they afterwards shall be As if one makes a bequest to such a Colledge or Chantry of which name though there be not any at the time of the Testators death yet there happens to be one afterwards c Perk. 505 Fulb. ib. fo 35. b. but a Post humus in favour of Testaments Although he be in the Wombe is notwitstanding supposed to have being d Tearmes v. devise 4 A Husband although he cannot make a Gift to his wife in his life time because they are both adjudged one and the same person during Matrimony yet he may give and bequeath Lands unto her by will in regard that Legacies take no Effect before the death of the Testator by which this conjunction is dissolved e Fulb. ib. 36. a. 5. One may also give a Legacy to an uncertain person which may afterwards be rendred certain as an annuity is given to A. for life and after his death to him who shall first in the Morning enter Saint Pauls Church and to his Heires B. enters in the morning before any one else this Legacy shall inure not only to A. but to B. and his Heires also f Id. ib. 6. A Body politick unlesse by the Kings particuler Charter is not in capacity of receiving an Estate bequeathed g Perk. 505 7. By our ancient Law Fees could not be bequeathed by will h Id. 537. Brit. c. 34. 27. H. 8. c. 10. Dr. Stu. l. 1. c. 7. and c. 20. Dier fo 74. n. 14. but necessarily discended to the next Heires i Glan l. 7. c. 1. Bract. l. 2. c. 26. Dier fo 127. n. 54. except contrary to the Common Law the particular custome of any City or Corporation permitted k Lit. l. 2. c. 18. F. N. B. 198. I. unlesse the Heir consented to such bequests Whosoever therefore would by his will give Lands to another did first infeoff one in them to the use of himself and his Heirs l Perk. 528. and by this means he might bequeath the use of the said Lands although he could not the Lands themselves unto a third person m Id. ib. 97. but later times have remedied this inconveniency or rather poor and weak comment and hath deereed that not only uses but even the Lands themselves with some moderation may be bequeathed n 32. H. 8. c. 1. Bro. testam 19. Swinb part 3. S. 4. Coo. l. 7. Case Butler fo 30. for of a Knights Fee we are yet obliged to leave the Heir a third part and we are prohibited the bequeathing of Lands by a will nuncupative in regard of the deceit and fraud they are subject unto o Dier 155. n. 21. 8. If a man and his Wife ioyntly purchase Lands to them and the Heirs of the man and the Husband bequeath them after the death of him and his wife to a stranger this is good For in this case the Husband hath the Fee-simple p Perk. 539. 9. If there be two Joynt-Tenants in Fee-simple where by the custome of the place Lands and Tenements may be given by will and one of them bequeaths his right to a third person this is void For since a Will is not in force untill the death of the Testator the right of a Joynt-Tenant at the very instant of his death is transferred by law unto his fellow q Inst Jur. Com. c. 15 which notwithstanding is otherwise in Partners because Partners have their Lands by blood and Inheritance and not by the Courtesy or pleasure of a Donor Joynt-Tenant have theirs r Ib. 10. A man may also appoint by his will that his Executors may sell those Lands which he hath in Fee and which he may bequeath and that the profits arising from such Saile may be imployed for pious uses or for the good of his Soul s Perk. 422. 541. 543. 21. H. 8. c. 4. but iâ— they shall cease to fulfill the command of the Testator within two years the Heir may enter upon them and eject them t Fulb. par c. Devises fo 40. Plow fo 523. 11. A. being Tenant in Socage gives the Lands which he hath in Fee-simple to his wife for tearm of life the Remainder to B. his Brothers Son and the Heires males of his Body and if it shall happen the said B. to dy without Heires of his Body begotten not expresly nor implicitely naming males there the said Remainder to C. another Kinsman and his Heires males in Fee-simple and for defect of Heires males of the said C. then to the next Heirs males of the said lineage lawfully begotten B. dies leaving only Issue D. a Daughter the question is whether D. shall have the Lands by force of those words and if it shall happen c. or some other Heir male more remote But it was adiudged that those words did not create a general Tail to the Heirs of B. or hinder the Lands from remaining to the Heirs males according as devised u Dier 171. n. 7. 12. Chattells of any sort may be bequeathed by will w Perk. 511. wherefore the profits arising either from the custody of a Body or Lands of a Ward a Lease for years Horses Oxen Sheep Gold Silver either in Plate or Money Rings all manner of Vessells without exception are diviseable x Id. 525. unlesse the Testator had but a Joynt possession of them at the time of his death y Dr. and. Stu. l 1. c. 6. Lit. l. 3. c. 3. and unlesse they be affixed to the Fee or Free-hold and cannot being reputed parcell of it be removed without wast z Bro. Execut. 65. 13. Monies also due upon Bond or Condition may be devised for that after they are paid to the Executors they are due to the Legatee a Perk. 527. 14. Chattells which a man hath in right of his Wife as Leases for years c. are deviseable b Id. 560. 15. A thing uncertain may be also devised so long as it may be reduced to
other Ornaments or Oxen either giving or promising hire such a care is required of him as a diligent Master of a Family would have which being had if the thing by accident happen to be lost hee is not bound to make restitution unlesse it be agreed otherwise Nor is it sufficient that he have such a care of them as of his own goods o Brac. ib. Dr. Stu. l. 1. c. 23. l. 2. 6. 4. Flet. l. 2. c. 59. 5. Letting of Lands and Immoveables is at this day the greatest occasion of suits of all others wherefore it is requisite that wee should speak more largely in this place of these particulars Every one may make a lease of Lands who holds them in Fee whether he have Fee-simple or fee-Fee-taile and whether he be possessed in his own Right in the Right of his Wise or of a Church p 32. H. 8. c. 28. which is also true in those who hold as Partners q Lit. l. 3. c. 3 So also Cestuy qui use r Id. ib. c. 5. a body politick may make a lease but not without writing s Bro. lease 32. 42. As also he who hath a Free-hold t Id. ib. 4. or a Lease provided he exceed not his term and Guardians until their Pupils and Wards come to age 6. He that hath a Fee-simple in his owne Right may make a lease for as many years as he pleaseth provided it be not to a Body politick lest by exceeding it seem a Demise in Mortmaine u Bro. ib. 47. He who hath a Fee-tail in his owne or Fee-simple in anothers Right viz. either in the right of a Church or of his Wife is tied a little more strictly for that they cannot lease Land by a new lease which is already let for above the term of a yeare Nor any which were not usually wont to be let within the space of 20. yeares past nor those for a lesse rent then they formerly were let for or for a longer terme then 21. years or three lives and that without permission of waste To these also may be added that he who hath a Fee in right of his Wife may let it joyntly with his Wife but hath no power to alienate the Rent but it shall come to the right Heir of his wife after her decease w 32. H. 8. c. 28. 7. Arch-bishops Bishops cannot let the Lands of their Churches for above 21. years or 3. lives to be accompted from the beginning of the lease nor for lesse Rent then it formerly went for nor for lesse then formerly it used to be let for x 1 Eliz. not printed Dyer fo 145. n. 65. 8. Masters and Fellowes of Colledges Deans and Chapters Wardens of Hospitalls and all Ecclesiasticall persons are prohibted y 13. Eliz. c. 10. to let their Church or Colledge Lands for more then 3. lives or 21. years to be accompted from the beginning of the lease nor this without their private Statutes permit Nor so unlesse the lease which is on foot if there be any be within three yeares of expiring z 18. Eliz. c. 11. Besides the Colledges of both Universities as of Eaton and Winchester are obliged to take the third part of their Rent in Corn a 14. Eliz. c. 11. Yet are they not prohibited from letting freely those Houses which they have in any City Burrough Towne corporate or publique Market Town with the Lands belonging to them provided they exceed not ten Acres according to the Common Law of England if it be not contrary to the private Statutes of their Colledges b Id. ib. 9. It is not without reason questioned whether a Prebendary of a Cathedrall Church may lawfully let part of his Prebendary procuring the said Lease to be confirmed by the Dean and Chapter without any consent of the Bishop the Bishop being both Patron and Ordinary of every Prebendary but continuall and daily Custome hath rendred his consent unnecessary and uselesse c Dyâ—r fol. 61. n. 30. 10. Those who have Benefices cannot make a Lease for any time longer then they reside there the liberty of being absent 80. dayes every yeare being alwayes permitted them unlesse by the Lawes they are permitted to have two In which case in regard hee cannot possible continually reside at both he may let one to his Curate d 13. Eliz. c. 20. 11. Lands and Tenements are often let for the life of the Lessee e Lit. l. 1. c. 6. or anothers life f Id. ib. or for more lives g Id. ib. or for terme of years h Id. ib. or lastly for a life and afterwards that being expired for a term of years i Bro. leas 51. and that either by writing or without k Littl. ib. nor by Indenture only but by Deed-Pol l F N B 148 12. But if any one letteth his Lands by writing or without not mentioning any tearm but giving the Lessee possession He is presumed to let them for the life of the Lessee m Lit. l. 2 c. l Plow 152. 13. There is no need of giving possession to a Lessee for years for he may enter by vertue of his Lease unlesse besides the Lease there be a Grant of a Remainder to another for life or in fee in the same Deed n Lit. l. 1 c. 7. for if a man makes a Lease of lands for years though he were Lessee before yet he doth rightly take possession of the said Lands by this means o Id ib 14. Lessor is bound to warranty to the Lessee for the Lessee being ejected before the terme ended may have his Action of Covenant against the Lessor p F N B fo 145 M Dier 328 n 8 and that whether he be disseised by the Lessor himself or by a more ancient Title nor only he but his Assignee q Id. ib 15. But if a third person eject him against Right he shall recover damages against the Ejector r Id ib unlesse the Lessor agreed by Indenture that in case the Lessee were ejected he should have his action of Covenant against him s Id id 16. Lessee for life by Indenture in regard he hath a Free-hold shall not have an action of Covenant against the Lessor in case he eject him before his tearm ended but an Assise t Id. ib. 17. Where a Lease is but for a year and so from year to year the Lessor cannot eject the Lessee at the end of the Tearm nor can the Lessee go out against the will of the Lessor For whosoever of them would recede from the agreement ought to give the other warning u Bro. lease 13. 22. 18. Lessor cannot remove his Tenant at Will so as to hinder him from taking the profits of his Seed or Corn sowen or without granting him convenient time to remove his Houshold stuff because the time is well enough force-seen and known to him
of Patronage in reâ—pect of the Fee which we possess and these 〈◊〉 tearmed the Lords of the Fee a Prat â—i lexicon verb. Patronus And theâ—â— are very few Infants that succed to good Estates who escape their Wardship and Câ—stody For as there is none with us except 〈◊〉 Crown who are seised of their Estates anâ— Tenements in a freer or larger Title thâ—â— Fee so is there scarce any Fee less worth But that it is bound to the Lord or a Patroâ— by Knights Service now those things whicâ— are proper to this Service are Gard Maâ—â—age and Releife b Lit. l. 2. c. 4 1. An Infant Heir who succeeds his Aâ—cestors c F. B. 262. Fletl 1. c. 11. Dyer 362. Gla. l. 7. c. 9. Bract. l. 2. c. 32. Brit. c. 66. Lit. l. 2. c. 4. in Knights Service remaines under the Guard and Custody of his Lord uâ—till he come to perfect age For before thâ—â— age he is not adjudged capable of those warâ—ick accomplishments requisite for a Knight â—nd due to his Lord by reason of his Teâ—ure notwithstanding that it falls out someâ—imes that age being dispensed with some are elected into the order of Knighthood before â—hey be compleat one and twenty years old But our Law supposeth these to be able to do those Offices due to the Lord of the Fee wherefore they are out of the custody though Infants d Brook tit Gard. 42. 72 Fulbeck in paral f. 29. Plow 267. 2. And this right of custody springs from â—his reason that since he who holds by Knights Service is obliged according to the â—greement at the first investing of the Estate â—o follow his Lord as a Knight in the Kings Wars It is presumed that no man will be more carefull in training up the Infant in â—eats of Armes then the Lord himself e Fort. c. 44. Polid. Virg. l. 16. 3. But if such an Heir be female she remaines in custody according to the Ancients f Bract. l. 2. c. 37. n. 3. but till fifteen and according to our moderns no longer then sixteen years of age g Lit. l. 2. c. 4 â—or no sooner doe they come to that age but they are immediately presumed to be able to govern their house and to marry such a Husband that shall be capable of doing the Service due to the Lord of the Fee h Bract. Lit. ibid. But if shee be compleat fourteen years old at the death of her Ancestor neither her Body or Land shall fall under the Custody of the Lord. i Lit. l. 2. c. 4. Mert. c. 6. West 1. c 22. Instit Jur. Com. c. 24. Br. tit Gard. 7. 4. But if in this case it come in question whether the Heir be an infant or not he shal remain in custody untill it be determined k Brac. l. 2. c. 37. Brit. c. 66 fol. 167. b. 5. If a Knights Fee discend to an Heir 〈◊〉 the Mothers side the Father living shalâ— have the Guard of his Body and the Lord of the Land for it is a Maxim that no one as to his Person shall fall into the custody of the Lord his Father living l Lit. l. 2. c. 4. 6. If Lands discend to a Wife who after Issue had by her Husband dieth So that the Husband for default of having possession 〈◊〉 the Lands in the life of his Wife cannot be Tenant by the courtesie of England In this case the Issue unlesse it be Heir to the Fatheâ— as being his eldest Son shall be in custody And if such Issue be a female and an Infant at the death of her Mother she shall remain If her Father have a Son living in custody notwithstanding her Father be alivâ— l F. B. fol. 143. 7. Lord of a Knights Fee may transfer the gard of his Tenant to another From whence there ariseth this distinction of Guardian iâ— Law and Guardian in Tail Guardian iâ— Law is the Lord himself Guardian in Tail is he to whom the Lord hath granted the the Custody of his Heir n Bract. l. 2. c. 37. n. 3. Lit. l. 2. c. 4. 8. There is also a Guardian simply and originally so called and a Guardian by accident from the cause of custody Originally is he who in right of his Fee hath the custody of his Tenant Causarily is he who for that he hath the custody of his own Tenant being yet an Infant hath upon that score the custody of another who is Tenant to his Ward o F. B. fol. 139. d. Dyer 123 n. 38. For an Infant cannot be Guardiâ—â— of an Infant p Flet. l. 1. c. 11. â— When there is an Heir male or female â—ho hath many capitall Lords they cannot 〈◊〉 have the custody of the Heir and thereâ—â—re one must be preferred before the rest â—nd that is he who first infeoffed the Tenant 〈◊〉 Knights Service the rest shall only be â—â—rmitted the custody of the Lands which â—â—e holden of their Fee q Bract. l. 2. c. 37. n. 4 c. Stamf. Prerog c. 2. 10. But if any Heir hold of the King in â—â—pite by Knights Service whether he hath â—â—her Lords or not the King shall be preferâ—â—d before the rest to the custody of the â—eir and that notwithstanding Priority or â—osteriority of infeoffing For that the King â—ath no equall or superiour in his Realme r Glan l. 7. c. 10. Bract. Stam. ut sup 11. A Ward who is once freed from the â—â—stody of his Guardian as by marrying or â—ontracting Matrimony with his consent â—â—all not return again into the custody And â—â—at notwithstanding he be under fourteen â—ears of age or afterwards that he shall marâ—y before 21. s Bract. l. 2. c. 38. n. 1. Lit. l. 2. c 4. 12. If there shall be many Daughters Coâ—cites who hold by Knights Service They â—hall be all under the custody of the capitall â—ord and none under the custody of the Mother t Bract. l. 2. c. 37. n. 6. Of the Legall Guardianship of Parents TIT. XVIII THE Father is preferred before all others to the custody of his eldest Soâ— For if an Inheritance fall to such an Infaâ—â— who hath a Father living notwithstanding that the Lands if they be holden in Knight Service be in the custody of the Lord of the Fee Yet the Body of the Heir shall remaiâ— with his Father a Lit. l. 2. c. 4 Cook l. 3. Case Rat. fo .. 37. 1. So also the Mother of an Infant 〈◊〉 holds in Socage shall have the Custody 〈◊〉 the Body and Lands of the Heire before aâ—â— kindred either of the Fathers side or Mothâ—â— side Of Fiduciary Guardianships TIT. XIX THat Tutela Fiduciaria which the Romanâ— imposed upon the male children theiâ— Parents being dead and upon the Childreâ— of Patrons our Ancestors seem wholly 〈◊〉 have neglected Concerning the first Weâ— have nothing determined save that which we mentioned before of the legall Guardianship
twelve years old may contract Matrimony as well by our Law as by the Civill d Bract. l. 2. c. 37. n. 7. being then adjudged capable of a Husband yet she doth not so soon come to maturity of Judgment but it is sooner notwithstanding out of custody then a man because when she marrieth she doth but alter her condition entring under a new power of a Husband instead of the custody of her Guardian e Glan l. 11. c. 7. Bract. l. 1. c. 6. n. 2. 1. So a Wardship may expire by the naturall or Civill death f V. sus tit 16. of the Guardian which is that which we tearmed the Maxima or Media capitis diminutio or in case the Guardian shall give Lands c. to his Ward or infeoff him For no man can be both a Guardian and Feoffor at one and the same time g Bract. l. 2. c. 5. n. 6. But this is most remarkeable in Guardians which are so by reason of Knights Service that they may either assigne the custody of their Wards to another or bequeath them amongst their other Chattells by common custome to their Executors 2 The Lord looseth the custody of the Body of his Ward when ever he giveth him or her in Matrimony So that if it shall happen the Ward being under age to become single the second time he can by no means recover him into his custody h Lit. l. 2. c. 4 Of Tutors or Over-seers TIT. XXIII MEN though full growne and women though marriageable were amongst the Romans to receive Tutors untill they arrived at twenty five years of age Notwithstanding that they are not so with us beyond the age of one and twenty and that in case where they had not any before either in regard of their Tenure or necessity of the Law However we include Tutors and Over-seers under the name of Guardians although it is apparent those to be more proper in relation to the person these to the Estate a V. tit 14. Sect. 4. in Inst A de ritâ— nuptiarum l. sciendum 20. 1. To some also the Law appoint Tutors and Overseers for by the Statute the King hath the custody of the Lands of naturall Ideots receiving the profis without waste and destruction and finding them necessaries without any regard had of whom the Lands are holden which after the death of the Ideots are to be restored to the right Heires so that they cannot by any means be aliened by the Ideots or the Heires disinherited b 17 Ed. 2. Brit. 167. Stan. Prerog c. 9. Bract. l. 5. trac 5 c. 20. n. 1. Dyer 102. Coâ— l. 4. 126. Fleta affirms c l. 1. c. 11. that anciently Ideots were under the custody of their own Lords But that for the many Exheredations that hapned Their Guardianshipp was conferred by Parliament upon the King yet with this Proviso that the Lords of the Fee and those whom it concerned should loose nothing which was their due Either for Services Rents Releifs of their right of Guardianship till they come to full age according to the condition of their Fee 2. So also where it happens that any one who formerly had both memory and understanding becomes Non compos mentis as some are who have Lucida intervalla The King shall take care that the Lands and Tenements of such shall be kept without waste or destruction And that he and his Family shall live competently and be maintained out of the profits of the same And that the Remainder of their profits shall be reserved for their use So that the said Lands and Tenements shall not be by any means alienated within the said time nor the Revenues appropriated to the Kings use and that if he shall happen to dy in such a condition that then that said remainder of the said profits to be disposed of by the Ordinary for the good of his Soule d 17 E. 2. c. 10. Bract. l. 5. tr 5. c. 9. n. 7. Dyer fol. 25. n. 164. Cook l. 4. 127. 3. Those who are naturally deaf and dumb or labour under any perpetuall disease according to the opinion of some are necessarily to have Guardians e Bract. l. 5. tr 3. c. 6 n. 6. tr 5. c. 18. n. 1. c. 10. n. 1. 4. Infants are not forced to receive Guardians against their will except by reason of their Fee or any of the causes before mentioned or in case of Suits in Law And in the latter case oftentimes there is not only the next of Kinn assigned to assist the Infant in acting but a Guardian likewise to afford him help for his defence f West 1. c. 47. West 2. c. 15. F. B. f. 27. 5. Notwithstanding which no man as Guardian to an Infant shall prosecute for him or receive an Action without warrant but another may as his Kinsman commence an action for him without express warrant g Id. ibid. nor can an Infant disclaim that Guardian who prosecutes an action for him as being next of Kinn h Id. ibid. 6. An Ideot born is not received to prosecute or defend in any action by his Guardian or next of kinn but is required â—lwaies to be present in his proper person i F. N. B. fol. 27. g. Of the Security which is to be given by Guardians TIT. XXIV HE that is constituted sole Tutor or Guardian by the Magistrate or Ordinary â—s bound by our Law to put in security But â—efore he is admitted to his Office he makes â—ath to administer all the affayres of his â—ard to his profit and benefit to give a true â—nd faithfull Inventory of all his Goods â—nd to exhibite it by a certain time accorâ—ing as the Judge shall appoint as also to â—ender an exact and true account of his Office when it shall be required from him â—esides all which he is to finde fit and able â—â—reties joyntly with himself and severally â—y themselves to become bound for his true â—nd faithful administration of his Guardianâ—hip Of the excuses of Guardians T IT XXV OUR Lawes speak nothing of the excuses of Guardians because no one is puâ—… upon this Office against his Will Of Guardians which may fall under Suspition TIT. XXVI OUR Lawes are very carefull in pâ—… of trusting Guardians For he that give Estates to divers whereof some are of agâ— and some Infants may lawfully appoâ—… those which are of age to be Guardians oâ— the Infants but this will not stand in câ—… there be any cause of suspition that they wâ—… contrive the death of the Infants but suspâ—…tion is not admitted if the gift be made tâ—… Father or Mother or their lawfull Issue bâ—… it is otherwise where it is to Brother or Uncle or Nephew because of the right discending a Bract. l. 2. c. 11. 1. They who are Guardians by right oâ—… their Fee so long as they have the custodâ—… of the Land are bound to maintain and reâ—aire all
although he had it not at first upon this Score yet since the Owner himself suffers him to injoy it upon this or another account it becomes his In the same manner if any one be in possession of anothers right without a iust precedent cause namely by Intrusion or disseisin and the owner wils that the Intruder or Disseisor shalâ— have it it shal be his although the owner were not possessed of it at all it being supposed that possession and property in the thing came unto him by the owners Will as from him and by his own hands k Bract. l. 2. c. 18. n. 2. Lit. l. 3. c. Releases Flet. l. 4. c. 20. 41. Things sold and delivered are no otherwise the Buyers then as paying the seller for them or otherwise satisfying him as by pledge or earnest l Bract. l. 2. c. 27 n. 1. Flet. l. 2. c. 51. Dyer f. 76. n. 30. unlesse the seller lets him have it upon his Credit m Dyer f. 30 n. 203. Plow f. 432. f. 5. 9 42. Where Livery is to be given to any one either by the owner himself or his Attorney of any house by it self or of any Messuage by reason of a Fee to that intent that the Donee should have the possession untill a certain Term with all the rights and Appurtenances It is not needfull in this case to go round all the Land or set ones foot in every part or parcell of it but it sufficeth if Livery be given by a Doore or by the hasp or Ring of a doore For by this means he shall be in possession of the whole by the intention and view and by the consequences of possession but if there be no house he may have seisin as it is commonly called by a staff or twigg and the meer setting of the foot upon the Soil with a desire of possessing and an intention of the Donor is sufficient notwithstanding that it doth not immediately inure to take its effects n Bract. l. 2. c. 18. n. 2. but without Livery of Seisin a Free-hold passeth not either by Feoffment Gift or Lease o Brit. c. 33. Bract. l. 2. c. 19 Doct. Stu. c. 7. f. 14. Lit. c. Attornment Perk. from f. 206. to f. 216. 43. Those which the Romans cal'd Missilia or the Liberalities which Emperours and Princes scattered among the People are not so frequent with us as they were with them yet we have some mentions of them which carry the same Right with them as when the Conduits of London at the Coronations of Kings or other such like solemnities 〈◊〉 with Wine every one hath a property in the Wine he there takes p Bract. l. 1. c. 12. n. 10. Fle. l. 1. c. 43. 47 44 Whatsoever is left and forsaken ouâ— Lawyers term a Waife this was formerly by naturall right the finders but now by ouâ— custome it is the Kings q Bro. tit Estray Waife that also it called a Waife when any personall or moveable Chattell is felloniously taken and being through the fear of tâ—e Felon left hath no owner to claim it r Kitch f. 12 b. n. 39. wherefore if any such thing be found it is the Kings or the Lords of the Mannor to whom this liberty and priviledge is granted by the King yet so that Restitution is to be made if the Owner claim it within a year and a day s Brit. c. 17. 45. So any beasts that are found straying in any ones ground follow the custome of things left for even these also were by out ancient writers included under the name of Waifes t Bract. l. 1. c. 12. n. 10. Fl. l. 1. c. 43. 47 but others call them by a more particuler name Estrayes u Brit. d. c. 17 which our Latines render Extrahura Because for the most part they break forth and stray against their owners will and these after a year and a day if not claimed by their Owners within a year and a day Escheat to the King or the Lord of the Mannor where they were taken Provided they be duly cryed and proclaimed in the Neighbouring Markets w Brit. ib. 46. The same is to be understood of things cast out of a ship in a Tempest to lighten the ship or of such things which happen to fall out of a Cart when it runs the owners not â—owing of them but in case of Shipwrack which we call a Wreck where neither any 〈◊〉 the Passengers nor any Catt or Dogg â—â—ts from the Ship to the shoare a live whatâ—â—ever of the Goods or ship shall be cast upâ—â— the Land by the Sea shall be the Kings 〈◊〉 the Lords of the Fee to whom the King â—â—th granted this priviledge x Brit. d. c. 17. Westm 1. c. 4. 47. No man can have any property of â—ands in England before he be a free Deniâ—en y Bract. l. 5. tract 5. c. 25. n. 3. Bro. tit Corporation 26. Dyer f. 2. n. 8. f. 224. n. 29. for that whatsoever is purchased by â—n Alien is forfeited to the King z Bro. Denizen 16. Of things Corporeall and Incorporeall TIT. II. THere are moreover of things some which are corporeall and some which are Incorporeal Corporeal are such as may be touched as Land ground things immoveable and moveable which can move themselves as living creatures and the like or which may be moved Things which are Incorporeall are such which can neither be seen nor toucht as rights and Priviledges the right of walking acting conveying of water and the like a Bract l 2. c. 12. n. 3. Flet. l. C. c. 3. Plow f. 170. Now rights and Services are the same but have their appellations from a diverse respect b Bract. l. 4. tr 1. c. 37. To this may be added the right of Pasturing which we cal common of Pasture Fishing digging of Turfes felling in otheâ— mens Woods the right of presentation to 〈◊〉 benefice distinct from an Estate of Inheritance which is by us called Piscaryes Turnryes Estovers c Id. ib. Advowsons in grosse d Bro. Tenure n. 15. 18. And lastly an Annual Rent e Doct. Stu. c. 30. now this cannot be said properly to be in possession but 〈◊〉 it were f Bract. l. 4. tr 1. c. 37. l. 2. c. 23. Mynsâ—n ad rubr Instit 1. For things moveable or immoveable our Law determineth Quatenus to the Persons and as they either are or are not in the poâ—er or property of man g Id. ib. Now property is 〈◊〉 full and absolute right of disposing of or selling any thing corporeall unless the Law any condition hinder h Gothof ad rubr â— de aqu rerum dominio Lit. l. 1. c. 1. Bract. l. 2. c. 21 23. Brit. c. 40 Possession or Seâ—suâ—e In Dominico c. Is properly of corpore all things and incorporeal we only say as of Fee For that they are
not absolutely acquired by Livery of Seisin but as it were now this Seisure In Dominico c. Is twofold Direct or meerly for use Direct which is also tearmed absolute is that which comprehends both Property and use The other consists solely in the benefit and use of a thing i Bract. l. 4. tr 1. c. 27. n. 6. tr 4. c. 4. Fl. l. 1. c. 12. 2. The English have a full Dominion and Power of things corporeal and moveable but not of immoveable if we except the supream power and right of the Crown for the Subjâ—ct hath not an absolute freehold in their Lands and Tenements but a Fee only and that fee doth not comprise so absolute a power appears not only by those Authors who write of Fees k Anto. Con. in Feodorum Comment c. 2. Matthae us â—â—esenbecius in tr de feodis c. 1. but even by Littleton himself when he saies that such a one was seised of such an Estate in his Demesne as of Fee by which words he affirms the highest and fullest title to be exprest And these words as of Fee do abate somewhat of an absolute power and argue a Tenure from a superiour but that these words are sometimes referred to the Kings Demesne l In 27 H. 8 16. is either from the ignorance of speaking and applying or else that distinction is maintained by which some will have a double acceptation of the word Fee viz. One by which a man holds an immoveable thing by any Title to him and his Heires The other by which one holds from another by Rent or Service or both m Flet. l. 5. c. 5. whereas Fee in the second acceptation is never without the Oath of Fealty n Termes of the Law V. Fealty Fulb. Paral. c. Seigniority f. 19. b. which the King never gave to any one as having an absolute Power o Fort. c. 9. Bract. l. 1. c. 8. Brit. in Praemi 3. Fee which is in latine Feodum and by some Feodum comes from the German Fief which signifieth an Inheritance held of another p Hottoman b. disput c. 11. and is by those that write of Fees defined to be an immoveable thing given to another in such a manner that the Property continues in the Power of the Donor but the benefit and use is to the Donee and his Heires Males or Females for ever So long as the Donee and his heires doe faithfully their Services to the Lord q Anto. Continus in Com. sup feod c. 3. so that Fidelity or Fealty is the foundation of Fee and nothing else Yet it often hapneth that it is not bestowed Gratis but for some small consideration of Money in the name of Rent or for Services r Duar. in Com. sup feod c. 12. Smyth Com. l. 3. c. 8. but we understand by Fee all which we hold to us and our Heiâ—â— s Bract. l. 4. tr 3. c. 9. n. 6. Lit. l. 1. c. 1. 4. Fee as it is taken for an Inheritance held of another is held either of the King or a Subiect or that we may use our owâ— Phrase a common person Fees that are held of the King are double either in right of his Crown which we call Tenure in Capite or of some Honour or Mannor appertaining to the Crown But a Subiect although he may have others who hold of him in Fee from whom he may exact Fealty yet himself is either mediately or immediately Feodary to the King for all the Land of this Kingdome which is not held of others by Services is held of the King and belongs to him either as ancient Demesne escheats or perquisites 5. Fee is divided into many Species either from the Effect or from some cause efficient or formall but we shall only discourse breifly here of those which we meet with most frequently in our Books 6. Fee therefore is either Leige or nonleige some Feodists t Duar. ib. will have it to come from the Italian word Liga which signifies a Band or League and that because it ties and obliges the Vasâ—al For Leige is properly where any one swears Fealty to his Lord non-Liege is when with the exception of another The first is due only to the King the later to common persons u 10 R. 2. 11. c. 1. 34. 35. c. 3. Lit. l. 2. c. 1. 7. Again Fee is either Royall or noâ— Royall Royall is the greater for that it hath somewhat of Royalty in it as from whence any one is instituted from the King â—eing absolute without acknowledging a suâ—eriour Of this sort are those which had a â—ignity or Honour conjoyned with the powâ—â— of their Priviledges and are by us stiled â—â—erties or Prerogatives Royall as where â—â—e King grants by his Charter to any Subâ—â—ct the view of a Franck Pledge the Pleas 〈◊〉 Impranding the amendment of the faults 〈◊〉 Assise the adjudging of Robbers as infangâ—â—eife and outâ—ang theife Soc Sac Tol Theam â—o punish by the Gallows or other punishâ—ents which the execution of Judgement â—â—all require Goods of Felons and which â—â—pertain to the Peace and consequently to â—â—e Crown w Bract. l. 2. c. 5. n. 7. c. 24. l. 3. tr 2. c. 35. Wrecks of the Sea Whales â—uâ—geons Free warren Fayre x Bract l. 4. tt 1. c. 46. and those â—â—her things which fall within the Kings â—erogative But of these Fees there are â—â—th us certain degrees since some have a â—â—eater number some a lesser granted unto â—â—em The first the Principallity of Wales claims 〈◊〉 right y Polid. Vir. in ed. 1. f. 343. lin 28. which from the time of Edward â—â—e first did belong to the Kings eldest Son â—nd the second is claimed by the foure Paâ—â—tinates or Counties Palatine Lancaster â—â—rham Chester and Ely z 5 Elix c. 23. 17 Ed. 4. c. 1. 27 H. 8. c. 25. And these have those Fees which we calâ—â—d Honors which the King besides the Jurisâ—â—ctions contingent to Courts Barons hath â—â—anted some though not all these Royallâ—â—es out of his Munificence a 31 H. 8. c. 5. 33. c. 37 38. 37. c. 18. 8. Thirdly Fee is either noble or Ignoble â—â—oble is that which hath any Dignity annext to it or which enobles the Possessoâ— or concludes him to be noble And of the sort with us are those which we cal Mannâ—â— whose Lords have some Jurisdictions thouâ—â— not Royal over those which hold of their 〈◊〉 b Perk. 670. Fulb. par Seig. f. 18. Kitch f. 4 Ignoble is that which depends of such Mannor and is granted to Countrymen 〈◊〉 their Heires for some base Service this 〈◊〉 commonly called Free-hold 9. Fourthly Fee is either new or anâ—â—ent * Homage Auncestrell new is there where any one is first all invested by the cheife Lord of the 〈◊〉 and that either by the Curtesy of the Loâ—â— or for Money paid to the former
different Species k â—it l. 2 c. 9. Inst Jur. Com. 27. Broo. tit Tenures 69. but Fleta will not have this duty exceed the value of half a mark l l. 1. c. 11. 4. Castle-gard we have defined to be a service due to the King only Which is originally true because no man can erect a Castle or Fort in the Kingdome without the Kings License but in case the King granteth a Castle with all the liberties belonging to it unto a Subject he grants Castle-gard also if there be any such Service due unto iâ— And for this reason this Service may as well belong to a Subject as the right of a Forrest m Manwood par 1. de Jur. forset pag. 87. Cov. col 4. fol. 88. a. and Lit. c. Socage It is a Service consisting in fortifying and defending any Castle of the Kings or another Lords as often as the Feodary shall require And this is properly Knights Service when it requires the Person of the Tâ—nant but when it is converted into a certain pecuniary mulct payable every year for the fortifying and guarding of a Castle it is altâ—red from the nature of Knights Service n Tit. ib. Inst com c. 27. Bro. tit Tenures n. 58. F. n. b. fo 259. A. 5. The second sort of Knights Service or Military which is due to common persons as well as to the King is called Scutage o Plow fo 126. 129. from Sculum a sheild And he that holds by this is obliged at his own Charges for a certain number of daies to follow his Lord in the Warrs against the Scors p Lit. l. 2. c. 3. They who hold by an intire and whole Knights Fee q Camd. Bâ—it 111. which sâ—me determine to be 680. Acres of Land some eight hundred Acres some fifteen pounds Sterling some twenty pounds r 1. Ed. 2. c. 1. and others forty pounds s Smiths Com. c. 18. are bound to serve for the space of forty dayes t Bro. Tenures n. 19. they which hold but by halfe a Knights Fee twenty daies and so accordingly u Lit. l. 2. c 1. 6. Now that certain differences between Lords and Feodaries as well concerning Armes as the time of Serving viz. whether from the time of shewing or perfecting to begin might be removed it appears in most places that it is by ioynt consent of Lords and Tenants agreed that the Tenants shall pay yearly a certain summ of Money to their Lords according to the value of their Fee and so to be freed from personall duties w id ib. from whence the thing it self seems so changed by degrees that that service which with our Ancestors was so incertain is in most Fees at this day reduced to certainty and is called Scutage certain x Lit. l. 2. c. 5. that incertain kinde being in divers Mannors quite extinct now this certain Seutage is Socage y Bro. tit Tenures 28. 29. 7. There are also other reall Services which atâ—end a Knights Fee as the shadow doth the Body as Homage Fealty Custody of Land and Heires Releife Marriage z Brac. l. 2. c. 35. Lit. l. 2. c. 4. for these no time hath hitherto exterminated a Polid virg hist ang 16. 8. Homage which the Feodists call also Hominium b Hottom disp de feod 3. is a reall Service c Briâ— c. 66. spec Jâ—sâ— b. 3. Flet. l. 3. c. 26. which the Feodary yeilds regularly to his Lord at his first institution by prostrating himself on both Knees at his Feet with his head uncovered ioâ—ning his hands and putting them between his Lords who remains sitting and proâ—â—uncing these words or to the same effect Hear Sir I become your man from this day forward of Life and Limbe and of earthly worship and shall bear you Faith for the Lands I hold of you and if it be not the King that receives the Homage saving alwaies the faith which I owe unto our Soveraigne Lord the King so God me help and the Contents of this Booke which said the Lord shall kisse him d Bract. l. 2. c. 35. n. 8. 9 Lit. sect 2. l. 1. Inst Com. c. 23. 17. E. 2. Brit. c. 68. 9. Ranulphus de Glanville denieth than Bishop who is consecrated or a Woman may do Homage e l 9 Spec. 9. Inst l. 1. But Fitzherbert f N. B. 258. f. according to the Rule in the Register affirms that a woman if single may swear Homage and Fealty to the King when from him shee receives Livery of her Lands and our more modern Authors hold that both Clergy and Women are subiect to this Service although the termes of expression is a little different For a Clergy man for that he hath set himself a part for the more speciall service of God useth these words I do Homage to you and shall bear your Faith for the Lands and Tenements which I hold of you saving alwaies the Faith which I owe unto the King our Soveraine g Inst Com. c. 23. Lit. l. 2. c. 1. and a single woman doing Homage doth not say unto her Lord I become your Woman for that it is not convenient that she should be another mans woman then her Husbands whom she shall marry But she shall pronounce the same words which are prescribed to the Clergy h Id. ib. and a woman who is married shall do Homage by her Husband i Id. ib. 10. If it happen that any one hâ—lds divers Fees by Knights Service of diverse Lords he â—all do Homage to them all but shall use â—â—ese words in the end saving the faith which owe unto our Soveraine Lord the King and â—nto my other Lords k id ib. 11. Now it is to be understood that Hoâ—age is alwaies annexed to Knights service â—ut not solely to it for Tenant in Socage â—ay also do it l Brac. l. 2. c. 35. n. 6. 12. Homage is divided into new and anâ—ient called Auncestrell new is that which 〈◊〉 performed by him who hath a new Fee m Instit Com. c. 28. Lit. l. 2. c. 7. â—ncient by him who hath an ancient one â—nd that ancient hath a double effect one â—hat the Lord shall secure to his Tenant his Estate or fee or as our Authors say shall warâ—ant it against all men The other that he â—hall save him quiet and harmlesse from any Services of another Lord at least in respect or relation to that Fee 13. Fealty which our Authors also call Fiducia is a reall Service n Brit. c. 66. due from every Tenant to his Lord at his first induction whether the Fee be noble or ignoble for such is the disposition of this contract that whoever holds by Fealty only holds the most freely of any one except the King o Smith Com. l. 3. c. 8. for no Subiect can hold without Fealty p Lit. l. 2. c. 5. west Simbol l. 2. Sec. 303.
and anciently he that broke faith with his Lord did forthwith forfeit his Estate q Bract. l. 5. tr 3. c. 6. n. 3. 14. Fealty is double one is generall confirmed by the Oath of every Subiect to the sepremacy The other speciall due unto the Lord of the Fâ—e r Le grand constumier de Normand B. Fle. l. 3. c. 16. the first is constantly exacted at Sheriffs Courts and view of frank-Pledge or Court Leets from all which in the verge or precinct of the County or Leet who are twelve years old otherwise they have no warrant to continue in their Estates s Brac. l. 3. tr 2. c 1. n 1. yet our Ancestors more ancient used not to impose this Oath upon any under fourteen or fifteen t id ib. Flet. l. 1. c. 27. years of age the form of which Bracton thus explaines They shall swear that they will not receive or entertain persons out-lawed Murderers Robbers or Burglaries Nor that they will consent or connive at them or their Receivers and that if they shall know any such they will attaâ—â— them and that if they shall hear any Hâ—â— and Cry they shall immediately follow with their Family and Servants u Brac. cod Flet. cod and Brittâ—â— more briefely w c. 12. when he saith that they shall swear to bear saith unto the King and that they shall neither be Felons themselves nor consent to felonies 15 The form of fealty speciall is double One which is proper to freemen the other to Villaines When a freeman swears fealty to his Lord he laies his right hand upon the Book and saith as followeth Know you this my Lord N. that J. M. shall be faithfull and true unto you and faith to you shall bear for the Lands which I hold of you at the times assigned So help me God and all Saints x Lit. l. 2. c. 2. When a Villaine swears fealty hee shall holde his right hand a little higher then the Booke so that he touch it not and shall say Know you this my Lord N. that J. M. shall from this day forward be true and faithfull to you and faith to you shall beare for the Land which I hold of you in Villainage and I shall be justified by you in body and goods so help me God and all Saints y 14. E. 1. c. 2. Spec. Inst l. 3. 16. Custody or Guard is a reall service proper to a Knights fee by which the Lord hath the guard and care of the fee and that to his owne use without giving any account during the minority of the Infant his Tenant As also the Education and Guard of the Body of the Heir Now every one is with us an Infant till 21. yeares of age if a Male for our Law presumes that Knights service cannot be duely performed till that age z Fortesc c. 44. But we have spoken enough of this already Only this we shall adde That the Lord may if he please alien this his title of Guardianship as wel as any other thing which he hath whence it is that there is a double Guardian namely one of Right as the Lord of the fee The other in Fait which is he to whom the Lord hath aliened the Guard of the Heir and Lands or of the Heir only a Inst com c. 24. 17. Releife is a reall service or Patrimoniall though some call it aptly a fruit or beneficiall profit of a service b Coo. l. 3. case Penantes fo 66. a. due both to Knights service c Brac. l. 2. c. 4. Lit. l. 2. c. 4. Brit. c. 66. fol. 165. a. Flet. l. 3 c. 17. and Socage By which the Feodary Tenant by Knights service whether male or female being at full age at the death of the Ancestor viz. the male 27. the female 14. years of age is obliged to pay a certain summe of money Tenant in Socage paying so much for Releife as he payes d Lit. l. 2. c. 5. 19. H. 7. c. 15. Bro. Tenures 76 Flet. l. 3. c. 17. yearly by way of Rent to his Lord. At what age soever hee be at the death of his Ancestor that without delay e Dr. Stu. l. 1 c. 7. Flet. l. 1. c. 9. so that the first year he payeth his Rent double one by way of Releif the other part by way of Rent f Flet. l. 3. c. 17. For the Lord may immediately distrain that is take whatever he finds upon the Estate by way of pledy untill he shall be satisfied for his Releife g Littl. l. 2. c. 5. So if one hold by fealty and a pound of Pepper the Heir shall pay the first yeare two pounds of Pepper And the Law is the same where the Tenant payes for his Rent yearly a certain number of Capons or Hens or a pair of Gloves or so many bushels of Corn or the like But if in regard of the season the Tenant cannot pay Releife presently then the Lord ought to expect untill a convenient time As in case hee be bound to pay a Rose or a bushell of Roses at the Feast of St John Baptist Here if he dye in Winter the Heir ought not to be distreyned by the Lord untill the season come that Roses may be had h Littl. ib. This the Feodists define to be a Present or Gratuity which the new Vassall bestows upon his Lord for admission upon the death of another Or for any other cause which shall occasion the Estate to come unto him in regard it is now taken up by a new one i Hotoman verb. feodalis ver Relevium 18. And it is to be observed that the Heirs of Earls or Barons ar others that hold of the King in Capite that is in right of his Crown by Knights service If they are at full age at the death of their Ancestors shall pay their accustomed Releife Viz. an Earle 100. pounds a Baron an Hundred Marks The Heir of a Knight for one Knights Fee 100. shillings And if there be any who hold â—y a double Knights fee 200. shillings and â—o according to the rate k Mag. Ch. c. 2. Instit com c. 24. Flet. l. 3. c. 17. which is also â—rue in the cases of other Lords of Fees l Brac. l. 2. c. 36. Brit. c. 69. 19. The Ancients derived this word Reâ—eife a Relevando because the Inheritance which lay still by the death of the Ancestor was raised up into the hands of the Heir And for this raising up there should be a cerâ—ain fine or acknowledgment paid by the Heir and this they termed Releif m Brac. ib. Brit. ib. 20. Marriage is a reall service belonging â—o a Knights fee by which the Lord of the â—ee hath a power of bestowing his Feodary in Marriage according to his pleasure or at least of claiming the value of the Marriage â—f so be that he be under age at the day of the death of his
Ancestor but of this we have spoken enough before Now Marriage is an Equivocall word since it signifies also the fee it selfe which is given in Matrymony n Brac. l. 2. c. 34. 39. And this shall suffice of services that are noble 21. That service which â—s rurall and ignoble is by us called Socage from the French word Soc which signifieth a Plough or Soccage as Sockage The cause of which Appellation was that these kind of Tenants were by our Predecessors bound to the service of the Soc or Plough and came yearly when the Season required with their Oxen to plough and sow some part of their Lords Land But by processe of time it is now become so that these kinds of works are in most places changed into a certain Rent although the ancient name of the service remains still o Lit. l. 2. c. 5. Inst com c. 31. So that this Tenure which at first was slightly esteemed of is now accounted mud the better for the originall labours are converted into a moderate summe of money only the value of the yearly rent is exacted for Reliefe and it is obliged neither to Guaâ—â— or Marriage p Dyer fol. 362. n. 18. 22. Wherefore Socage which at first was purely a Villain and Rural service is now â—â—vided into free and Villain Free Socage 〈◊〉 that which in lieu of villain services payes 〈◊〉 the Lord a certain annuall rent q Brac. l. 2. c. 35. n. 1. Villâ—â—â— Socage is double that ancient Viz. by which there is a certain service performed by reason of the Fee for this is even still in use r Lit. l. 2. c. 5 Inst corn c. 31. And the other which is pure villainage in which there is obligation to incertain services and undetermined where one cannot tell over night what service will be required next morning Viz. where any one by reason of his fee or person is ingaged to do whatsoever is commanded him s Brac. l. 2. c. 8. n. 3. vet N. B fol. 49. Brac. l. 1. c. 11. n. 1. Bri. c. 66. fo 165 b. But our Moderns do not subject those who hold in Villainage to such uncertain services But call that villainage where a villain Tenant according to the custome of a Mannour or will of the Lord or a Free-man by reason of his fee performs service duties to the Lord of the Fee As to carry Dung out of a City or ouâ— of the Mannor of the Lord to his Lords lands and the like t Lit. l. 2. c. 11. Inst com c. 34. Bro. c. 66. n. 9. 23. That Fee therefore which is held by free Socage enjoyes the best Conditions of any other at this day being freed from the incumbrances of Guard and Marriage u Smith Com. l. 3. c. 5. which to Tenants by Knights service often falls out most heavy But this at present if taken according to the utmost latitude of its signification is understood to include all other kinds of Tenures which are held by a certain Rent free from Guard and Marriage w Brit. c. 66. as those which are held by Franck-almaign x Id. ib. or in ancient Demesne of the King y Id. lb. Lit. c. Socage by fee-farm z Brit. ib. in free Banck a Id. ib. or Burgage b Bro. tenures n. 5. 77. 24. The service of Franck-almaign if at least we may call that a service which payes neither fealty nor any terrene duty to the Donor is where a fee is given to an Abbot or Prior their Covent or to a Dean Chapter to a Mr. of an Hospital or any Body or Person Ecclesiasticall under that capacity or notion That they should pray for the souls of the Donor and his Family living or dead But this at present can be done only by the Supream power for that there is a Statute c Westminst which prohibits any from granting their fee-simple to be held of himselfe Wherefore whosoever from that time the King excepted gave an Estate in Franck-almaign did in vaine adde that word Franck-almaign because it wrought nothing but that the Donees held the same Estate of the Superiour Lord by the same services which the Donor held it whose act could prejudice none but himselfe d Bro. tenures 61. But it seems the Capitall Lord might remit these services and so make it Frank-almaign e Id. ib. 71. 97. The service of ancient Demesne is that which the Tenants of the ancient Demesnâ—â— of the King performed Now ancient Dâ—mesne is all that which was immediately helâ— of the King St. Edward oâ— â—illiam the Conquerour f Term. law Ancient Demes For the later tooke an exact survey of the whole Kingdome so that heâ— might know of what Lord every rodd 〈◊〉 ground within it was holden This survey he caused to be entred into a book which is yet remaining in the publique Exchequer by him stiled â—â—nchester Roll or Doomâ—day g Camd. Br. c. 94. Coo. pref to his 3 d. book Now by ancient Demesne wee understand all those Mannors which were there assigned and ascribed to the King namely because they were the Kings Demesne 〈◊〉 Ancient and the service by which these Tenants hold of the King is Socage h F. N. B. fo 13. D. 14. B. C. But these had a double manner of holding Vâ—â— some by Charter and were called the Kings free Tenants Others by Seales which wee call Copies of Court Rolls Or by the Verge and these were stiled the Kings free Sockmans i Brac. l. 2. c. 8. n. 4. Brit. c. 66. F. N. B. fol. 14. D. Flet. l. 1. c. 8. Neither of these are Tenants at the will of the Lord but by services first due according to the Custome of the Mannoâ— k Kitch fol. 99. Brit. c. 66. Many Writers have treated of the liberties and priviledges which these Tenants had that they might have the greater leisure to attend the Kings businesse l Brit. ib. F. N. B. ib Lit. l. 2. â—â—st com c. 35. Flet. l. 1 c. 8. 26. The service which is performed also by Tenants in Fee-farm is Socage in regard Fee-farm cannot be where Guard and Marriage are reserved to the Lord by Charter m Brit. ib. And the same is to be understood of Tenants in Franck Banck n Brit. ib. Br. l. 4. tr 6. c. 13. n. 2. 27. Burgage is a certain Rent payable by those which inhabite the ancient Burroughs or Cities which spring from them of this Kingdome either to the King or another Lord to whom the King hath granted it And this also is called Socage o Littl. l. 2. c. 10. 28. Having passed so cursorily over these wee are to know that there be many more Fee-services behind which are partly proper to Tenants in Knights service partly to Socage and some common even to both as secta ad curiam secta ad molendinum Herriot Aide to make
Sheep Corn or any such like things p Bro Tit Tenures 133 Plow 542 4. Now these kinds of uses and profits are dissolved either by the death of the Usufructuary q Instit com c 5 as Copyholds or for Treason in which Case the Delinquent looseth all his goods and life also r F. n b. 2. 3 201 or by processe of time namely when the years for which they were made are expired by Consolidation s Co. l. 2 fo 17 a Plow 419 420 when the Usufructuary purchaseth the property and lastly through the default of the usufructuary as for waste or letting his estate to another contrary to Right and Law t Flet l 1 c 14 Mag char c 4 Westmin 1 c 47 Stat Glo 1 5 Westmin 2 c 35 Dyer fo 30 42 178 F n b fo 55 Of Vse and Habitation TIT. V. USus hath as large an extent with us as usufructus hath with the Civilian a 27 H. 8. c. 10. Dr. and Stu. l. 2. c. 22. but I do not see any cause why the same Law which the Romanes had both for use and habitation may not take place with us there being nothing which I have ever read which might either hinder the giving and bequeathing of them or purchasing them by agreements but yet I find nothing specially or positively determined by our Lawyers from whence I may with confidence averâ—e any thing Of Customes and Prescriptions TIT. VI. IT hath been said before how that Title and Dominion over corporall things is through a just act and purchase transferred by Livery Now we are to declare how it may be transferred without by Custome namely by a long continuall and peaceable and quiet possession through usage and time and without Livery Brac l. 2. c. 22. Flel l. 3. c. 15. for Prescription hath sometimes the force of Livery Brit. c. 4. Brac l 4 tr 1 c 38 n 13 1. Justinian for the most part puts a difference between Custome and Prescription as that the first should be of moveables the later of immoveables c Prat us lexi verb pâ—aescrip yet they are often used promiscuously Vultaeius com sup Justin n 6 and 10 2. Moveables are not alwayes taken the lame way by Custome for such as are bought in a publick Fair or Market although stoln are immediately the buyers the sale being legall viz. the Toll if there be any due payed and a coutract entred so that the Owneâ— can no way be evicted but a Horse v tit barg sale l tit 24. Dier which is stoln is thus by the Custome made ones own viz. If it be ridden in an open Market or Fair by the space of a full hour fo 77. n 66 or otherwise shall be led there continually and openly that he may be shown and f 2 and 3 Pb and Mary c 7 then the Seller coming to him that keeps the Toll book shewing the Horse and telling his own Christen name and surname as also his possession and place of dwelling proving all this by one witnesse who is well known unto him that keeps the Toll he is to enter it into the Book 31 Eliz c. 12 3. Any Beast or Cattell found straying in the fee of another is by the Custome after publick Proclamation made in the neighbouring markets due to the Lord of the Fee unlesse the owner challenge it within a year and a day Brit Dr Stu 2 c 3 51 so also are such things which are left and forsaken which we call waifes Id. ib as also such as are brought to Land from Shipwracks if they fall not under the notion of wrecks k but all other things whether given or found or happening through their over heavinesse do not follow the same rule much lesse things which are stoln l New book of Entries verb. Pro. Brac. l. 2. c. 5. n. 2. Brit. c. 17. yet the Citizens of London are said to have a Priviledge that whatsoever any one buyes appertaining to his own Trade and brought bona fide to his shop to be bought it becomes immediately his own without all fear of eviction m Dyer s 121 n. 16. 4. Prescription is a legall definition or limit of time ordained for this end that in all transactions for peace sake there may be an opportunity observed all Prescriptions tending to this that nothing may be done in the Common wealth later or sooner then seems just and equall Moreover in the mannaging of affairs it is fitting that we should have limits of time prefixed both to quicken industry and avoid precipitation n Prataeus ubi supra 5. But Prescription differs from Custome that onely coming from possession adding a new Right and adjoyning a new Title to the thing acquired having substracted the other whereas Custome doth nothing so for that it onely imparts its own Lawes to those by whom it took its Originall and by whose usage and consent it receives perfection o Conna l. 1. Commen Jur. Civil 10. n. 8. 6. Prescription although in the common acceptation it be such a portion of time as exceeds the memory of man p Dr. Stu. l. 1. c. 8. Kitchin 104. yet hath it much of diversity amongst us but for orders saâ—â—e we have thought fit to divide it thus viz. into that which works to the secure avoiding of a losse and that which works to the certain â—cquiring of a propriety 7. For the avoiding of dammage this is â—heif where any sum of money is adjudged â—o the King by any Statute for an offence â—here the offenders may after two years clapâ—ed prescribe to themselves immunity but in Case where it is due to the King and another as Informer then against the suit of the King after two years and against the Information of the common person after one year q 31 Eliz. c. 5 unlesse such penall Statute doth particularly prefixe a certain time and in this Case there is great difference in Statutes some allowing one year r 3 H. 7. c. 1. 2 and 3 Ph. Mar. c. 3. and 5. c. 2. 1 Eliz. c. 7. 14. c. 11. 31. c. 4. some one year and a day s 23 Eliz. c. 1 some two years t 8 R. 2 c. 4. 5 Ed. 6. c. 14. some three u 8 H. 6. c. 9. 1 H. 8. c. 4. 39 Eliz. c 1 some four w 7 H 8 c 3 some a moneth x 23 Eliz c. 2 some two moneths y 23 H 6 c 15 1 E 6 c 1 some six dayes z 5 Eliz c 5 and 15 and some fifteen a 11 H 7 c 7 7 H 8 c 7 besides according to the common Law if a man upon an indictment of murder be acquitted he may after a year and a day plead Prescription against any appeal either of the Wife or b F n b. fo 25 9 Brit c 28 fo 66 b next of Kinne of the
party slain s 8. Things immoveable whether corporall or incorporall have divers Prescriptions The most usuall is that which is called the longest and is extended beyond the memory of man for whosoever will prescribe against another the maintaining of a Chaplain to celebrate Divine Service in any Church c new bo Ent Act. in Chaplein or the repairing of a Church d Eod tit in reparations or that being present at the Election of the Master of an Hospitall e Eod tit Quare im edit in Hospitall or an Annuity f Eod. tit Annuity in corp politique or the Cognisance of any Plea in his Court g eod serm de breif or any service in his fee h eod Replev in amerciament F. n b. fo 122 he muâ—â— prove them to have been time out of mind or he doth nothing nor do we mean any other then this when we speak generally of Prescription i Dr. Stu l 1 c 8. 9. But there are Prescriptions of shortâ—â— time as of 40 years in the way of Tithing k 2 3 E. 6. c. 13. five years for Lands and Tenements in case of a Fine acknowledged lawfully l Dr. Stu. l. 1 c. 25 l. 2 c 14 Lit. l. 3 c 7 Inst com c 27 Plow 357 Dier fo 72 n 3 of three years in Case of Lands and Tenements held gotten by forcbile Entry and held so long in quiet possession m 8 H 6 c 9 of a year and a day for a villain to assent his liberty against his Lord if he have continued so long in ancient Demesne or in any of the Kings Cities or Towns without being claimed oâ— molested n Flet l 2 c 51 F n b fo 77 as also for the Confirmation oâ— any Deed made by one who is in Prison unlesse he who made it do in the interim revoke it o Liâ— l 3 c 7 Brac l 4 tr 1 c 2. n 7 Brit c 42 Plow f 357 and 372 new Terms ver non claim so also for the hindering the Entry of him who having omitted continuall claim in case of his being uniustly disseised of those Lands and Tenements if he shall endevor to recover them so coming by the right of Succession to the Heir of the Disseisor p Brit c 34 Perk grants 29 10. No prescription of time shal prejudice the Supream Power q Id c 34 Bra l 2 c 5 n 7 nor any Lord but that he may challenge the perquisite of his villain r Brac ib 11. Nor is there a Prescription in all things as for example not in those which are not subiect to commerce nor in those of which the Crown is properly sole Lord s Lit l 2 c 11 nor where the use is repugnant to reason and good manners t Id ib Brac tr nor in case where an alienation cannot be made without an instrument u Brac l 2 c 19 n 4 1 c 38 n 13 and it is agreed amongst some of what things a prescription cannot be and received generall with us that no prescription in Lands maketh a right w Dr. Stu. l. 1. c. 8. 12. Nor can a prescription be of those pertinencies whose principles have not a perpetuall and durable continuance x Dier fo 70. n. 40. or of those things whereof no one can tell what he or his Ancestors particulerly whose Estate he hath did possess y Id. fo 71. n. 42 And lastly a Prescription is of no validity against a Statute afterwards made z Id. of 373. n. 13. 13. It was much controverted among the Ancients how long after one might bring his Writ of Right after the title or Right to Lands or Tenements c. have laine dormant or his Assise or Writ of entry to gain a possession as it were lost by him to whom it appertained a Thaleat Digest br l. 10. c. 21. but this whole Controversy is composed by the prudence of Parliament which hath provided and fitted apt remedies for the difference in each case b 32. H. 8. c. 2. Coo. l. 4. Bevils Case fo 10. â— Of Gifts TIT. VII THere are many waies of Acquisition by the civill Law viz. By way of Gift succession Testament and others as shall appear hereafter a Bract. l. 2. c. 4. Flet. l. 3. c. 2. but in regard that amongst all the other causes the most great known and famous is that of Donation or gift therefore it doth worthily challenge the first place for that by it there is a more great and frequent acquisition then any other b Brac. cod c. 5. n. 2. Brit. c. 34. 1. Donation is a certain institution which proceeding out of meer Courtesie and will without any coercive or compulsive Law or Right transfers a thing unto another And to give is to render a thing his that receivs it effectually otherwise that Donation or Giving were uselesse which could be revoked and made void c Bract. eod n. 2. Brit. ib. Flet. l. 3. 2. Our Authors do frequently call a Donation a Feoffment but the word Donation hath a greater latitude for that it doth not only comprehend a free alienation of immoveables but of some moveables also d Bract. l. 2. c. 26. yet in Lands these appellations are distinguished thus A Feoffment is of a Fee simple to the Donee or Feoffee and a Donation or Gift is of an Estate taile e Lit. l. 1. c. 6. 3. Donation in the largest signification is thus divided viz. That it is either amongst those who are still living or upon occasion of Death Of which we shall speak hereafter f Brac. l. 2 c. 5. Flet. l. 2. c. 57. Of gifts some are simple and pure as namely those which proceed no Law or right either civill or naturall inforcing no Reward Fear or Force interveneing from the meer free bounty of the Donor and where the Donor will not in any case that the thing given should revert to him g Brac. l. 2. c. 5. n. 3. and l. 2. c. 10. Flet. l. 3. c. 3. and c. 8 another is from a future Cause namely where any cause is interposed for which a thing shall or shall not be h Dier fo 33. n. 34. under which kinde fall gifts by reason of Marririage Dower i Glan l. 7. c. 1. and c. 18. Bract. l. 2. c. 7. Flet. l. 3. c. 9. or Death c. As if one gives any thing with such an intention that it shall be the Donees when a subsequent thing is performed And these kinde of Gifts are not properly Donations when they are conditionall k Bract. ib. Bri. c. 34. F. N. B. f. 205. h. Flet. l. 3. c. 11. but Donation is sometimes with relation to a cause past l Brit. c. 35. lit c. 5. fo 76 and sometime with relation both to past and future causes m Plowden fo 455 n Bract. l. 2. c. 5.
5 c. 25. Flet. l. 6. c. 48. Dier fo 224. n. 29. but in regard the thing taken is also received the acquisition is not to themselves but to the King as we have said nor finally can persons uncertain as the Heirs of one that is living y Perk. grants 52. Plow 345. Or the first-born of any one who at the time of the gift hath not Children z Perk. ib. n. 54. Dier fo 274. n. 43. but a possession to A. the remainder to his Heirs though uncertain is good a Coo. l. 1. Arâ—bors Case f. 66. he also who is wholy unfit and unable to execute an office in any of the Courts of Justice is uncapable of receiving the said Office b Dyer fol. 151. n. 1. 14. Now all things whatsoever may be given save those things which can no way be possessed those are things sacred and Religious or as it were Sacred and those are a Free-man and that which appertains to the Kings Treasury which make the very Crowne and belong to the Publique profit c Brac. l. 2. c. 5. n. 8. 13 14. Brit. d c. 34. Flet. l. 3. c. 6. To which also some adde the Walls and Gates of Cities d Flet. ib. But at this day there scarce seems to be any liberty appertaining to the Crowne or Pâ—erogative in the Supremacy which may not by Charter be granted to a Subject e Kitch fol. 30. b. 15. I cannot give the Right which I have in a thing which is in the possession of another to a third person Yet I may â—emit it or as we say release it to the Possessor by my writing f Perk. ib. 85 86. Nor can any one give an action which he hath to any thing as we have said before g Sup. cod except the King h Dyer fol. 30. n. 208. or to the K. i Bro. chose in Action 4. yet one may give it to the party obliged k Perk. ib. 85 86. A man cannot give the reversion of an Office Eo Nomine nor can any but the King give under the name of the Office l Dier fol. 259. n. 18. 16. Now that a Donation may be valid there are other things required It ought to be free and not compulsatory nor extorted by force or feare m Brac. l. 2. c. 5. n. 8. 13. Brit. d. c. 34. There ought also to be certainty in a Gift for that there can be no Donation of a thing uncertain unlesse it may be some meanes be reduced to Certainty n Perk. ib. 81 86. Plow fol. 6 7. 12 13. There ought also certain words to intervene to a congruous Gift o Brac. ib. n. 12. as to a Bargain p Id. ib. Dier fo 71. n. 10 11 and that there be a joynt consent as well of the Donee as of the Donor q Brac. ib. n. 12. Dr. Stu. l. 2. c. 33. And that there may be no Error in the thing given r Brac. l. 2. c. 5. n. 12. Flet. l. 3. c. 7. nor fraud s Id. ib. not prejudice to a third person t 13. Eliz. c. 9. Yet a false or pretended cause adjoyned to a Gift doth not vitiate or injure it u Flet. l. 3. c. 6. 17. And here also there ariseth a difference amongst Donations for that some may be by word some not without Writing or Deed as we commonly speak w Brac. l. 2. c. 5. n. 3. all Chattells for the most part either reall or personall may be given by word x Per. grants 7. unlesse they be given by a Body politick whose Seale iâ— necessary in every Alienation y Id. â—od 64. If any one in Knights service be Guardian of Body and Lands he may grant the Custody of the Lands or the profits by word only which some affirme also as to the body or person of the Heir z Id. ib. 60. though it be denyed by others for this reason That the transferring of the Body doth not consist properly in the delivering possession a Id. ib. No man can grant Lands which one hath in possession to another either for life or for ever without a Writing but for yeares he may b Id. eod 61. Corn which is but growing may be granted by a Nude parolâ— and that by Tenant in Tail although he dye before the Doâ—ee hath severed it from the land c Id. eod 57. which notwithstanding is otherwise in fruits of Trees growing upon the Land d Id. eod 59. And the reason of the differenceit may be is because Corn cannot grow without the industry of man but trees by nature but Tenant in Fee-simple may give even such Trees by his word only e Id. eod 58. because he hath a larger power then Tenant in Taile And lastly Lands and Tenements may be given amongst those who are living by word only f Id. cod 62. But in case of Death not without a Will in writing g Seetit of wills c. 18. Incorporall Rights are hardly given without Deeds as wee call them such as yearly Rents h Dier fol. 139. n. 57. Dr. Stu. l 2. c. 16. fol. 80. Common of Pasture an Advowson villain in grosse or the reversion of Lands after the death of the present Possessor i Perk. gr 61 Plow fol. 150. Of which nature also are Tithes according to the opinion of some k Perk. ib. 62. Plow 233. but a Rectory with it's Tithes may l Bro lease fol. 15. 20. to which may be added the Right of Guard and Marriage m Dier fol. 370. n. 57. 19. If a Gift be in all things compleat it ought to be confirmed by Livery or something parallel n Brac. l. 2. c. 5. n. 12. 17 18. Inst com c. 21. Lit. l. 1. c. 7. Flet. l. 3. c. 2. 9. Dier f. 49. fol. 91. Now how Livery and Seifin is to be we have spoken else-where 20. There are three kinds or species of Donations in case of Death One which is made meerly upon the thoughts of Death when there is no feare or danger of Death â—igh Another when the party being moved with the imminent feare of present Death so gives that the Gift immediately becomes the Donees The third when one being prickt with the danger gives out so that the gift is forth-with the Donees but after his deceale o Brac. l. 2. c. 26. Flet. l. 2. c. 57. What persons may alienate and what not TIT. VIII THis Chapter is so near the other that we must necessarily repeate many things which we mentioned there But the word â—â—lienating being more generall then giving those things which we shall set downe heâ— have a more universall use It happens sometimes that he that is Oâ—ner of an Estate cannot alienate it The King cannot alienate the ancient Mannâ—â— annext to the Crown but every King is â—â—liged to revoke the alienations of the
Croâ—â— Nor will an Obligation to warranty hinder unlesse it were upon Exchange Or otherwise for the value in Fee or service Oâ—â—â—least unlesse they were granted for the Câ—â—modity and Honour of the King as the Bâ—ronies of Bishops a Flet. l. 1. c. 8. 17. c. But this Right 〈◊〉 now almost wholly worne out either by the munificency of our Kings or by the 〈◊〉 much negligency of our Common-wealth And therefore King James did worthily study a wholsome remedy for so pernicious 〈◊〉 mischeife 1. Nor can a Husband so alienate the Inheritance or Joynture of his Wife but thaâ— it may be recovered by her or her Heirs after his Decease b Glan l. 6. c 3. Brit. c. 34. F. N. B. fol. 193. d. 2. Those who hold of the King in Capitâ— either by Knights service or Socage cannot without punishment alienate their Lands without license c Id. fo 175. A Bro. aliâ—nat tenures 69. 32 H. 8. c. 1. Yet some are of opinion that such alienation is good for the Buyer or Feoffee against the Seller or Feoffor although the King cannot be prejudiced by it d Bro. Testaments 34. 3. An Infant e F. N. B. fo 192. g. Perk. 3. Grants 15. â—9 Mad-man f F. N. B. fo 292. C. Monk g Perk. ib. 3. or Feme-covert h Id. ib. c. 11. Bro. Exec. 175. cannot alienate Nor can a villain those things which himself hath purchased i F. N. B. 202. l. if his Lord be possessed of them Or if they be not possessed in case hee be the Kings villain k Littl. l. 2. c. 12. 4. There is also an old Law lately revived by an Act of K. James which to the subversion of the Church was almost lost through neglect wherein Arch-Bishops and Bishops are prohibited to alienate the Fees of their Churches l 1 Jac. ses 1. c. 3. 5. Lastly those who otherwise may alienate in some cases cannot namely Lands or Tenements to a Body politick whether Ecclesiasticall or Seculer m 7. E. 1. 18. E. 3. c. 3. 15. R. 2. c. 5. F. N. B. fol. 221. Q. without obtaining the Kings license for alienating it in Mortmaine And on the other side Religious Colledges which were founded by the Kings of England are prohibited to alienate their Lands without the Kings License and permission n Westminst 2 c. 41. 6. And on the contrary it sometimes happens that he who is not Owner may alienate for a Creditor by contract may alienate a pawne or mortgage although the thing be not his As if it be agreed in the beginning that it shall be lawfull for the Creditor to sell the Pawne if the money be not paid So also may a Wife Apprentice or any other Servant which a Merchant appoints to sell Commodities in his Office or Shop o F. N. B. fol. 120. H. Bro. tit Contract 37. 40. or any other person who hath command from the Owner p New booke of Entries trespass in Agist 1. Ejectm firm 10. 7. And sometimes it falls out that he who hath a full power to alienate a thing cannot doe it but after a certain forme or manner for the King can neither purchase nor alienate without that special method of Entring which we call Record q Plow 553. By what person wee may make acquisition or gaine to our selves TIT. IX NOw we are to know by what persons wee may purchase or gaine to our selves And know that we may legally by our selves our Wives our Servants Male or Female by Sons or Daughters which are under our protection by Free-men who serve us provided their Deed be necessary and warrantable and approved a Brac. l. 1. c. 9. n. 3. l. 2 c. 11. n. 12 c. 18. n. 6. l. 3. tr 1. c. 2. n. 12. Brit c. 35. 38. Lit. l. 2. c. 11. Dr. Stu. l. 1. c. 8. l. 2. c. 18. And also by those Servants b Flet. l. 3. c. 13. c. 15. l. 4. c. 11. c. 12. who are not under our power as well as by those who are provided they be not under anothers yet so as we take no benefit by them before it be determined whose they are so also by a Common Servant and that as well by anothers as ones owne which we do bona fide possesse and by such a one of whom we have an use 1. And this may be done also by Procurators Tutors Keepers or Guardians who either bargain in our name or are in possession c Brac. l. 2. c. 18. n. 6. Flet. l. 3. c. 4. c. 15. And the same is to be understood of those who are naturally deafe and dumb d Id. ib. 2. The Sons and Daughters also of Villains which are under the power of their Lord without manumission If they make a purchase without the bounds of the villainage have no Heir but their Lord. If so be that he take possession of such Tenements either in the life of his Villain after his Death e Brac. l. 4. â—r 3. c. 13. n. 1. Of ordaining last Wills and Testaments TIT. X. THe third kind of Donations which are by reason of Death are last Wills and Testaments a Brac. l. 2. c. 26. Flet. l. 2. c. 57. Now a Testament is the determination of our Will concerning that which one would have done after his decease b l. 1. de â— Testament And it is double Viz. Proper or Improper That which is properly so called is that last Decree of a man in which hee names his Executor c Brc. Test 20. And hee is in the place of him whom the Romans called Haeres is as the Basis of the Testament d Swin par fo 1. Sect. 3. n 19. representing the state of the Testator That which is improperly called a Testament is any other lasâ— wil whether a Codicel or Donation by occasion of Death or Letter e Valiâ—ius in com sup Instit tit de Testam ord in pri n. 9 10 11. And either of these may be two-fold Viz. either written or Nuncupative f Perk. Testam 476. but Lands cannot be given by a Nuncupative will g 32. H. 8. c. 1. Coo. l. 3. Bakers case fo 31. Dier fol. 53. n. 13. fol. 72. n. 2. fol. 143. n. 54 55. 1. That rigorous way of Solemnity which the Romans used in making of Wills is long since abrogated by the Canon Law which counts two Witnesses before the Parish Priest sufficient to maintain or prove a Will h C. cum esses 10. extra testamentis Nor doth the Custome of England oblige so much as the Decretall for with us it is sufficient to pronounce a will before two Free-men whether Clergy or Lay i Brac. l. 1. c. 16. n. 2. Glan l. 7. c. 6. Dier fo 52. n. 13. Yet our Sages doe for very good reason perswade men
upon their denyall then of any two honest men who are obliged to take true and faithfull Inventory of all the Goods and Chattels Moveables Immoveables which the Party deceased had at the time of his death and to write all and singular the said Goods justly apprized in 2. Charters or Tables indented The one to be reserved to themselves the other to be delivered to the Ordinary But if the Testator had appointed any of his lands or Tenements to be sold the money or profits thence arising are not to be put into the Inventory c 21. H. 8. c. 5. Swinb part 6. Sect. 9. 2. But the Heirs are obliged to satisfie the Debts of their Ancestors which the Chattels will not suffice to doe d Glan Brac. ubi sup Yet if the whole Estate of the Testator would not suffice to pay Debts then the Kings Prerogative excepted there used in former times to be a defalcation every where e Brac. ib. 3. And even at this instant the Law is that Legacies are not to be paid before debts be satisfied for in such cases the Executor is bound to pay the Creditors out of his own Estate f Dr. Stu. l. 2. c. 11. Bro. Execut. 116. Perk. 488. yet is hee not tyed to pay every one that demands a Debt but those only against whom the Testator had he lived could not have waged his Law g Bro. ib. 79. 87. 127. 163. 172. Dr. Stu l. 2. c. 11. Plo. 181. Dyer fol. 23. n. 144 145 fol. 80. n. 53 54 55. 4. The ancient Law seems to be somewhat changed as to the priviledg of Creditors Yet even now it seems that the Executor may in the first place allow moderat Funeral charges and then satisfie Creditors according as the Law prescribes and of those the King is first by his Prerogative h Mag. Char. c. 18. Next him those to whom the Testator was obliged by Statute-Merchant or Recognisance In the third place those who have Judgments against the Testator i Swinb part 6. Sect. 16. Fourthly penall Obligations k Bro. ib. n. 88. 172. And of these those have priority whose dayes for payment are lapsed l Dyer fo 80. n. 54. and of those if there be many they who sue first But if they commence their suits together Or that dayes of payment be not yet come then it is in the power of the Executor to gratifie whom he pleaseth Next to penall Obligations follow simple Bills m Swinb ubi super as wee call them And lastly Contracts without writing against which the Testator could not wage his Law As Servants Sallaries and Rent of Lands or Houses whereof the Testator was Lessee for years or life and the like n Bro ib. n. 33. 87. 127. 163. But as for made Contracts Executors are not obliged to pay them o Id. ib. Yet according to the opinion of some these have their remedy in an Action upon the case upon a promise of the Testator p Termes v. Execut. 5. If a Creditor be made Executor hee may in the first place satisfie himselfe after which he is bound to pay the other Creditors out of the residue q Plow fol. 185. 6. If after Debts paid there remaines enough to satisfie Legacies every Legatee may of right claime his whole Legacy Otherwise only according to the proportion of the Estate and the quantity of all the Legacies Yet so that the Executor may first deduct charges bonafide expended and desperate Debts But under the notion of lex falcidia we have not any thing nor is there any thing in that nature required from the Office of a Judge But as to those Goods which are not devised they are convertible to the use of the Executor r Perk. 525. 7. Executors of Executors are obliged to the payment of the first Testators Debts unlesse his Goods appeare to be fully administred by their Testator s Dyer fo 174. n. 21 22. 25. Ed. 3. Stat. 5. c. 5. Of those Trustees which the Romanâ— called Fidei Commissarii Haeredes ad sanatusconsultum trebellianum TIT. XXIII THese Inheritances are out of use with us yet those Trusts are something parallell to them by which wee are used to give our Lands to Strangers to the use of us and our Heirs or to private persons to the use and profit of a Body politick But those inventions of Uses being injurious to the Prince and to the Lord of the Mannor a Coo. l. 1. Shudleys case fol. 123. are by Acts of Parliament either wholly taken away or at least for the most part altered b 1. R. 3. c. 1. 4 H. 7. c. 7. 27. H. 8. c. 10. Of things left Per fidei commissum TIT. XXIV OF those things which were by the Romans termed Fidei commissa excepting those which are appointed to the next Title we have no mention in our Law they being left wholly to the Civill Lawes definitions Of Codicills TIT. XXV THe terme Codicillus is seldome used with us wherefore in this we only follow that which we borrow from the Civill and Common Law unlesse it containe either a Fee or a Free-hold In which cases they are to be proved only before an Ecclesiasticall Judge and to receive their Interpretation according to the Lawes of the Land The End of the Second Booke THE Third Book of the Institutes of the Lawes of ENGLAND Of Inheritances which are conveighed from such as dye even Intestate TIT. I. THERE is also another way of gaining Dominion which is by Succession and which happens to all Heirs of such things whereof their Ancestors dyed seised in Fee or whereof they were at any time seised as of Fee by Right of Inheritance without having alienated them And this Discent ought to be to the next Heirs Males or Females in a direct or transverse line Wherefore Right like all heavy things falls downwards direâ—â—ly or transversely nor doth it ever ascend 〈◊〉 same way by which by the death of the â—ncestor it discends yet doth it collaterally â—scend sometimes for want of Heirs to whom 〈◊〉 may discend a Glan l. 7. c. 1. Brac. l. 2. c. 29. n. 1. Dr. and Stu. l. 1. c. 7. Flet. l. 6. c. 1. and c. 2. 1. A Right discends to the Heir whereâ—â—ever born whether in the womb or beyond 〈◊〉 on this side the Sea and that whether within or without the Dominions of the King Provided his Parents be the Kings Leige People and that the Mother went over Sea with her Husbands leave nor can any man create to himself an Heir because God only makes them and because Haeres is not ab Haereditate but Haereditas ab Herede 2. Now Inheritance is a Succession to the whole right which the Ancestor deceased had in Fee upon what cause soever whether by Acquisition or Succession with Seisin or without and if by Seisin then at whatsoever he was
Kitchin tit Escheat f. 110. Of the Tertullian Decree TIT. 3. WEE in the case of Fees follow the Rigour of the twelve Tables which will by no means suffer an ascending from Children to Parents a Bract. l. 2. c. 29. n. 1. wherefore if this seem harsh to any one we shall wish him a Tertuilian or Claudius to perswade our Senate to the contrary Of the Orphitian Decree TIT. IV. CHildren with us doe equally succeed to Inheritances comming from the Fathers or Mothers side and that by the same rules and in the same degrees a Flet. l. 6. c. 9. wherefore we have no need here of an Orphitius Of the Succession of Cozens by the Mothers side TIT. V. THe Romans called those particulerly Cognati which were allied by the female side a Ult. S. 1. â— de gradibus affinitatis but there remaines nothing to be spoken of them the two former Titles being considered b viz. The first and second of this booke where we have shewn That these are never to succeed as Heires but for default of Heires on the Fathers side which is so to be understood that the most remote Cozens on the Fathers side discending in a direct line but not in a collaterall are to be preferred before the neerest on the Mothers side for the great great Grand-child of my â—â—neall Niece or of my Sister shall succeed 〈◊〉 before my Sons or Daughters Cozen-â—erman c Bract. l. 2. c. 30. and 31. 1. This breifly I thought also to insert that 〈◊〉 default of Heirs in a right line discending 〈◊〉 in each collaterall line the Land shall â—scheat to the Lord of the Fee d Glan l. 7. c. 17. Bract. l. 2. c. 29. n. 1. Lit. l. 1. c. 1. F. N. B. 143. Of the degrees of Consanguinity TIT. VI. HAving mentioned degrees it is requisite to take a view of the persons who are â—n possibility of succession and who are preferred before others in succession from the first degree of the same line to the last a Bract. l. 2. c. 31. n. 2. 1. In the right line ascending are these Grand-Father great Grand-Father the great Grand-Fathers Father the great Grand-Fathers Grand-Father the great Grand-Fathers great Grand-Father and so ad infinitum b Id. ib. Flet. l. 6. c. 2. 2. In the right line discending Father and Mother are first which make the common root then Son and Daughter the Nephew and Neice and so Ad infinitum c Brac. and Flet. ib. 3. In the collaterall line ascending Brother or sister of Father or Mother make the second degree and so their Heirs Ad infinitum d Id. ib. 4. In the collaterall line discending are Brother and Sister and their Heires Ad infinitum e Id. ib. Of the Consanguinity of those who are servile TIT. VII THis Title is with the ancient Civilians reckoned as part of the former a Wesenb in the same Title noâ— doth our Law determine any thing in the cases of such as are manumitted contrary to the rules of those who are born free there Marriages being a like lawfull Of the succession of such as are made free TIT. VIII PAtrons are not with us admitted to succeed those who are made free in case they dy without Issue wherefore if any one purchase a Fee after Manumission and dy without Heirs the Lord of the Fee shall claim it by Escheat and not he who gave the party deceased his freedome a F. N. B fol. 143. T. c. the same rules are also for the Chattells of such dying Intestate as for those who were born free Of the assignation of such as are made free TIT. IX THere is no difference with us between those who are manumitted and those who are born free save that they some time were Servants wherefore we have no use of this kinde of Assignation in our Common-weath Of the possession of Goods TIT. X. THE supream power with us gives the possession of a Fee to the Heirs of them who hold the Fee of him by any kinde of service in Capite for he by his Prerogative hath the primer seisin of Lands a Stan. Prerog c. 3. and 13. F. N. B. fo 255. and. 256. c. nor can the Heires receive them but by his hands those who hold of other Lords by Knights service much more Tenant in Socage so soon as they come of age enter upon their Estates by right and in case their Lords hinder them may have their Action having satisfied the value of their marriage b 1. But for those goods which we call Chattells the Ecclesiasticall Judge who is in stead of the Ordinary give possession of them according to the Will or at least confirm the possession being taken to the Executors of the party deceased but if there be no Will then he grants Administration to the widow or next kinsman of the party deceased yet so that the goods shall be distributed according to his Judgement either amongst c 31 Ed. 3. c. 11. them or for pious uses d Linw. provin Of acquiring by Adrogation or Adoption TIT. XI THere is nothing hinders but that the English may adrogate or adopt and be adopted but in this Case the consent of both parties is solely essentiall for our Law determines nothing of this kind of acquisition unlesse that which naturally falls out between party and party in contracts Of him to whom Goods are granted for Liberty TIT. XII AS for those Servants who receive their Freedome from their Lords by Testament the cheif thing is the performance of the Will for it is not materiall whether the Executor will accept the Office For we have shewn before how ungratefull that old solemnity of the Romans in Case of Wills is to us Of Successions which were amongst the Romans by the Sale of Goods according to the Claudian Decree TIT. XIII WE have not this kind of acquisition amongst us yet have we something like unto it for the Fees and all other the Goods of Banckrupts who having consumed their fortunes withdraw themselves That their Creditors may not arrest them wheresoever they be found are divided towards the satisfaction of Creditors by such Honourable persons whom the Statutes in this Case mention a 34 H. 8. c. 4 13 Eliz. c. 7. but above all that most famous Act in King James his time doth most carefully provide in these Cases b 1 Jacob. Ses 1. c. 15. Of Obligations TIT. XIIII WE have before treated of persons and things and are now to speak of Actions a Brac. l. 3. tr 1. c. 1. now an Action comes from precedent Obligations as a Child from a Mother b Id. ib. n. 2. an Obligation is a legall Bond or tie whereby we are necessarily bound to the giving or doing of any thing c id ib. c. 2. n. All civill Obligations may be divided into two kinds Obligations by the Common Law and by
Lit. l. 3. c. 4. unlesse the Donees be a Body Politick and receive under that notion or at least one of them in which case they are tenants in Common g Id. ibid. 3. Partners and joint-tenants differ two wayes the former being joyned by necessity and are called Partners meerly in respect of their inheritance Joint-tenants have their name either from purchase or Gift and are joyned together by their own Wills and not by necessity h See the former quotations 4. Thereare also some who are Joint-tenants only for life and yet have severall inheritances as where Lands are given to two men or two women and to the Heirs of their bodies in this Cafe so long as they live they are called Joint-tenants for one of them having Issue and dying his fellow shall have the whole during his life who also if he shall leave Issue and die his Heir with the Heir of him that died before shall hold the said Lands in common i Iâ—st c. 15. and if one of the Donees die without Heire his part for defect of an Heire shall after the death of his fellow revert to the Donor k Littl. l. 3. c. 3. 5. Tenants in common are they who hold the same thing as Lands or Tenements Chattells personall or reall jointly but by severall Titles l Id. ibid. c. 4. for if one parcener alienate or give his Right to a stranger the stranger and the rest are Tenants in Common though the rest amongst themselves enioy their former appellation 6. Wherefore Tenants in Common differ from partners in this that these do not possesse any thing in Common by Right of inheritance as do the others nor are they ioyned by any necessity and from Joint-tenant in that they hold a thing in Common by divers Titles or at least the Tenants are naturally so unequall that they cannot admit of any coniunction such are bodies politick among themselves or with single persons m Id. ibid. 7. First for partners these though they die before Partition transmit and leave their part to their children if they have any otherwise to the rest of their fellows n Id. ibid. c. 2. Inst c. 14. 8. Partition may be made either by mutuall consent o Dier fo 179. or if some refuse by the power of the Judge for he who desireth to have his part divided may have a Writ of Partition by which he shall compell the rest to divide p F. n. b. 61. K. 259. C. 260. B 261. C. but if one woman Partner entermarry and having Issue dieth the Husband being Tenant by the courtesie may compell them to a Partition if it be not already made q Littl. l. 3. c. 2. 9. Littleton doth very fully describe the manner of making Partition both by consent and compulsion but this is rather matter of fact then of Law that onely is observable that if Partition be made by consent one or more of the Partners being under age it may afterwards be corrected wheâ— they come to full age provided they do not confirm it when they come of age by receiving the profits r Id ib. and if it be a Fee-Tail although all be at age at the time of the Partition made yet their Heirs may disagree to 〈◊〉 s id ib. so also if an unequall Partition be made by the Husband of co-Heirs after Marrimony is dissolved either of them may disagree t Id. ib. F. n. b. 62 E. 10. If after Partition any part of either oâ— the Partners Estate lye evicted by Law He or she whose part it was may compell the rest to a new Partition and recover a lawfull part in those Lands which the rest hold u Little ib. c. 2. 11. If there be an Advowson in the inheritance and the Partners will not consent in the Presentation of a Clerk then the eldest shall present in the first vacancy and the rest according to their Case and to this they may be compelled if they refuse to agree and every one hath therr lawfull remedy if they be hindred from presenting in their turn w F. n. b. 34 T and 36 C. 12. If there be two Joint-tenants of a Fee simple withi a Burrough where Lands and Tenemenrs are divisible by Will and one of them devises his Right to a stranger and dies this Devise is void and the reason is because that part which by the Law at his death comes unto the other by the Right of â—â—crease and out of Descent cannot any way 〈◊〉 conveighed to another by a Will which â—â—es not its Operation till the Death 〈◊〉 the Testator from him that claims the â—â—ole x Littl l 3 c 3 13. Two take a Lease joyntly for years â—â—th this condition agreed to between the â—â—ssor and them that if the Lessees die beâ—â—â—e the Terme ended the Lease shall be â—â—id The Lessees make Division and one 〈◊〉 them alienateth his part and dies the 〈◊〉 Lessor cannot reassume the part of him â—â—at died but the Alience shall hold it duâ—ing the life of him that surviveth nor hath â—ccupation in this Case any force but it two â—â—ke a Lease for theit lives and make parâ—â—tion either of them dying his part immeâ—iately reverts to the Lessor y Dier fo 67. c 18 14. Two are Joint-tenants for life one of which lets out his part by Indenture to a third person for years reserving a Rent from it to him and his Heirs and dies the question is whether by his death the ritle did wholly vanish or whether the surviving Joint-tenant ought to hold the whole for his life if he ought then whether he were left to his own libertty notwitstanding the Lease of his fellow or to take onely the Rent reserved upon that moity and it was adiudged by the Justices that the surviver ought to hold the whole Lands for life and that free and disobliged from the others Lease z Id fo 178 n 5 15. And this is the difference between Joint-tenants in Fee and Partners that neither of the Donees can charge his Lands whiâ—â— he holds pro Indiviso with any Rent longâ—â— then for life but a Partner may and the râ—â—son is it cannot preiudice his fellow or 〈◊〉 Heir who derives his Right not from hiâ— but from the Donor but Partners succeedinâ— one the other for defect of Heires may froâ— one anotherr derive their Right a Littl. ib. c. 3. 16. Which notwitstanding in letting 〈◊〉 clearly otherwise for if one of the Doneeâ— who holds pro Indiviso to him and his Heiâ—â— let out his Right for a compleat Term 〈◊〉 dies the Lessee after his death may retain 〈◊〉 during the Term nay he may enter into tâ—â— Lands although they were not delivered unto him in the Lessors life time or anâ— wayes possessed by him b Id. ib. and the reason 〈◊〉 diversity between a Rent Charge and a Lease is iudiciously given by Littleton
i Id. 156. some prohibite and keep within compasse those Judges who stretch their Jurisdictions too farr k Id. 39. some remove causes from one place to another l Id. 70. 69. Lastly some informe and commence processe m Regist Origin and others prosecute and bring to an end those which are begun n Reg. Judiciale now those which begin processe are called originall Writs and those which promote and end processe begun iudiciall o Regist Brev. 1. All Actions flow either from the common Law or from Statutes p Bro. Action populer Sur le Statut. but from which soever they flow they are all either against the person or the Estate or both q Brac. l. 2. c. 3. n. 234. 2. Personall Actions are those which arise against any one from a Contract reall or imputed or from a crime reall and proper or imputed Now those Writs which are Issued forth in either case upon Contracts are for the most part these A Writ of Covenant r F. N. B. fo 145. of Account s Id. 116. of Debt t Id. 119. of Detinue u Id. 138. of Trespasse w Id. 92. upon the case in which the assumption is contained x Bro. Acton Sur le case 24. 3. Those which are issued out in either case as touching Crimes are those of Trespasse y F. N. B. 85. Deceit z Id. 95. breaking of a Park a Id. 100. or Inclosure Rescous b Id. 105. Attaint c Id. 105. Conspiracy d Id. 114. Champerty e Id. 171. 4. Reall Actions are those who are maintainable against any one not obliged to us by any Right because our estate corporall or incorporall which is immoveable is possest by him or as it were in his possession which he may either restore or name the party in whose name he possesseth it as if one demands of any one a thing certain viz. a Fee Lands an Advowson pretending ones self owner of it and sues not for the value or so much in the same kind but the same specificall thing and for this that the demandant supposeth the thing his and brings his Action against the Tenant who denies it the Action or Plea shall be against the thing it self f Brac. l. 3. tr 1. c. 3. n. 3. 5. If the thing sued for be a moveabe as an Ox an Asse a Garment or something consisting either in weight or measure although the Action or Plea at first seems to be as well against the thing as the person because a certain thing is sued for and for that he who possesseth it is bound to restitution yet in truth the Action is against the person because the party sued is not precisely bound to restore the specificall thing but under a disiunction either the thing or its value and he is freed by paying the value onely whether the thing be to be had or not and therefore if any one claim a thing moveable taken away upon any occasion or lent he ought in his Action to ascertain a value otherwise it is of no force nor signifieth any thing g Brac. l. 3. tr 1. c. 4. n. 4. Fleta l. 2. c. 60. 6. Now of Actions civill and for a particular thing as the claim of a particular thing some are confessory and some negative confessory as where one affirms a corporall or incorporall thing to be his as a Fee also where he affirms himself to have a Right of going through his neighbours Fee or of drawing water even whether his neighbour will or not and it is therefore stiled an Action for a particular thing because he requires his particular incorporall thing viz. his Right of a way through a Fee and confessory because it is by words of affirmation But an Action negative is that which the Lord or owner of a Fee brings against one who is accustomed to have a way through his Fee denying that he hath any such Right and this Action is said to be for a particular thing Because by it the Lord of the Fee doth by it claim his Liberty and these kind of Actions are not for the Dominion or property of a thing but onely touching the Right of Estates h Brac. ib. n. 7. Flet. l. 5. c. 37. 38 39 40. 7. We have also something paralel to that which was anciently called Actio Rescissorla for if any one be dispossest of his Estate being in durance and the Lands descend to the Heir of the Disseisor the Disseisee hath liberty to recover his possession by his own proper Act or as we term it to re-enter and if Judgement be given against him he may reverse it afterwards by a Writ of Error because his absence was not through contempt but by reason of Durance and imprisonment and therefore it seems contrary to reason that he should be prejudiced by any such Record and there is the same law for those who are in the Kings service or who are beyond the Seas in any businesse which concerns the Common wealth and are in the mean time disscised being unable to make their continuall claim nay there are some who affirm that he who is beyond Seas about i Litt. l. 3 c. continuall claim his own businesse if he be disseised may upon his return upon his own authority reenter upon the Heir of the Disseisor without bringing his Assise k id ibid. 8. And there is somthing likewise which answers to that same Actio Pauliana and which is afforded by a particular act of Parliament l 13 Eliz. c. 5. which renders all manner of alienations of Lands and Goods made by the Debtor to defraud the Creditor void and of none effect and moreover inflicts a penalty upon all those who are guilty of it and who defend it as lawfull 9. Nor do we want that which equalls the ancient Actio Serviana for the Lestor may of proper Right distrain upon goods which are brought upon his Fee and detain them untill his Rent be satisfied because we also do tacitely esteem these in the nature of Gages or Pledges although this be not without Distinction m Bro. Distresse 13. 57. 99. To this also may be added that Actio hypâ—thecaria quasi Serviana for if any one receive monies borrowed of another under a Pledge or Pawn and cannot afterwards receive his pawn upon tender of the monies the Creditor refusing to redeliver it the Debtor may in this Case have his Action n F. n. b. 86. G. and he is said to sue upon an Action quasi Serviana who being seised of Lands as by way Mortgage is disseised or elected out of them 10. Now writs which are proper to reall Actions are either to recover a property or a possession o Flet. l. 6. c. 1. those which appertain to a property are writs of Right which are of divers kinds p F. n. b. 1. 6. 11.
bring a Personall Action which concerned neither Title of Lands free Tenement Inheritance or Battery in any of the Courts at Westminster in which Action the Judges of the Court should value both the Debt and Damages to be under forty Shillings that the Costs of such Suit should not be assigned greater then the principall value And that whereas the Sheriffs and their Deputies were wont formerly to cite and Summon the good people of England without any warrant or Writ to the said Courts or to imprison their bodies or distrain their Goods that from thenceforth they should not dare to attempt the like and he that made Default in this or caused another to do so should be committed to Prison without Bail or Mainprise untill he had besides Damages and Costs of Suit paid ten pounds to the party iniured and twenty pounds to the Exchequer f 43. Eliz. c. 6 4. Nor shall a man escape unpunished for moving or beginning every Suit rashly for in some Cases if the Plaintiff upon the Defendants appearance desist he shall pay Costs g 23 H. 8. c. 15. as Informers upon penall Statutes if after the Suit begun they delay discontinue or be non-suit in the same or have the Triall or matter passe against them by Verdict or Judgement of Law they shall pay unto the Defendant his Dammages and Costs which shall be assigned him by the Court. h 18. Eliz. c. 5. 5. So also they who indict or impeach any one under the pretence of any crime whereby their lives credits or Estates are in Jeopardy are liable to an Action of conspiracy i 33 E. 1. Sta. 3. 3 H. 7. c. 1. which presumes malice whereby they shall be compelled to pay the full Damages sustained by such accusation or eviction k F. n. b f. 115. â— and in some Cases they shall pay treble Damages l 8 H. 6. c. 10. 6. And I have heard from some practisers that if any one in forma pauperis procure a Liberty of bringing his Action in the Upper Bench Common Pleas or the Chancery according to the Statute m 11. H. 7. c. 12. and betray rather a Spirit of Contention in the end of the Suit then a iust cause that such person shall have corporall punishment n 23 H. 8. c. 15. 7. But our Ancestors were wont to deterr men from their light and rash Suits by an Oath for it was prohibited every one to bring any Action of Battery before the Kings Justices unlesse it were for wounds or maims without they first made Oath that his Plaint was true or an Action of Trespass for goods taken without making Oath that the Goods taken were worth forty shillings at the least o 6 E. 1. c. 8. 8. There are many Statutes made by the no lesse prudence then equity of former Parliaments p 32 H. 8. c. 30. 18 Eliz. c. 14. 27 Eliz c. 5 6. Plow 83. 522 523. for the speedy deciding of Suits which that they might be preferred before private ends and profit were to be wished by all good men in regard rhey do principally recommend the truth of causes to the Justistices reiecting all malitious calumnies of those who are subtle and litigious and amongst these that is worthy to be numbred by which the crafts and knavery of under-Sheriffs and their Officers and Bailiffes are restrained q 27 Eliz. c. 12 Of the Office and Duty of a Judge TIT. XVII OUr Kings were wont formertly at their Inauguration or Coronation to take an Oath to this Effect viz. that they would keep inviolate all the Rights and Liberties of Holy Church which were granted unto her by the Christian Kings of England That they would keep without impairing or diminution all and singular the Land and Dignities appertaining to the Crown and indeavour with all their power the restitution of such as were impaired or lost if any were that they would cherish the quiet and Peace of the Church Clergy and people that they would keep and observe the ancient Lawes and Customes of the Kingdome which were received and established by the consent of the whole people and abrogate all such Customes and Lawes which were ill and naught And lastly that they would to the utmost of their power assure Peace to the People of their Kingdome and procure it from others a Brac. l. 3. tr 1. c. 9. n. 2. F. n. b 232. A. Spec. Justic l. 1. c. 1. Flet. l. 1. c. 7. 1. The Oath of the Justices of the Superiour Courts and of the Barons of the Eychequer are to this effect viz. that they will well and truly serve the King and his People and not consent to any thing which may tend to their preiudice or Exheredation that they will not take Fee nor Robe of any man but the King that they will not take any gift of any one whose cause is depending before them except meat and drink and that of a small value nor any thing for any cause after it is tryed b Brac. ib. c. 8 n. 2 3. n. 9 10. that they will not give counsell to any one in any case which concerns the King under the pain of being at the Kings Will as to Body and Goods that they will not be deterred by the Kings Letters from doing and administring Iustice to any one b Brac. ib. c. 8 n. 2 3. n. 9 10. 2. This we have even from the very beginning c 2 E. 3. c. 8. 20 E. 3. c. 1. Dier 138. n. 27 unto this present that where any one is sued in case of property of a Fee Simple for Lands or Tenements it is at his choice whether he will be tried by his countrey or by Battell if he prefers to be tried by his countrey the businesse is determined by a Grand Assise but if by Battell then a day is appointed d Glan l. 2. c. 6. 7. Brit. c. 42. upon which the Case is committed to two combatants whom we call Champions according to the Law of single Duell between whom it is decided by the event e Dierf 301. n. 40. 41. 42. 3. The ancient custome of the Nation requires also that all Trialls of private Actions except a few as to matter of Fact f Plowd 92. 114. should be determined by a Iury of twelve free and lawfull men of the same vicinage who are neither allyed to either Party g Dr. Stu. l. 1. c. 7. or hindred by any iust exception h Dier 144. n. 59. 176. n. 27. 177. n. 33 316 n. 3. Bro. Tit. Challenge 4. Those who are indicted for any capitall crime or Felony before a Iudge unlesse any question arise touching matter of Law are not allowed Councell Yet the Laws require That the Judge himselfe should instruct the party in all things appertaining to the form of his defence lest an ignorant Innocency endanger his life i Fortesc c. 27. Dr.