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
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-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-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
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
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-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-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-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
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-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-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-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
certainty by the Legatee c Fulb. par 38. b. 16. There hath been a great difference in opinions amongst our learned Lawyers and that according to the diversity of Species in the cases of Corn c. sowen by those who had Land in possession and not severed from the Soil For example Tenant in Dower sowes Corn and dies before Harvest She may devise the Corn though not yet ripe d Perk. 521. Stat. Merton c. 2. Flet. l. 2. c. 37. which is true also as to those Lands which she holds Joyntly or severally under the notion of Dower e Perk. 513. Fulb. 17. â—ural Devises 38. 17. But if contrary to custome she be endowed by the Guardian of the Heir and dying leaves Corn growing her Executors may be ejected by the Heir when he comes to age and hindered from gathering the profits f Perk. 524. So if the Heire coming of age recover Lands against his Mother or Widow of his Ancestor in a writ of Admeasurement of Dower he shall recover not only the Lands but the Corne also which is by him deviseable g Id. ib. 18. Tenant by the Courtesey leaseth forth his Lands and dyeth The Lessee shall reap his Corn and may if he dye before it be ripe devise it h Id. 514. which may also be done by a Parson of a Church as to his glebe Lands i 28. H. 8. c. 11. 19. So also he who hath Lands in right of his Wife his VVife dying after the Corne sowen may reap the benefit ar devise it k Perk. 518. Lit. l. 1. c. 8. which his Lessee also in case hee have leased out the said Lands may doe l Perk. 513. Fulb. par fol. 37. b. 20. Execution is taken upon a Mannor of the Debtors by vertue of a Statute Merchant The Creditor sowes the Land and before Harvest a Tenant of the said Mannor dyeth the Custody of whose Heir being under age satisfieth the Debt This will not hinder but that the Creditor may also devise the Corn not yet ripe or gathered m Ib. 516. 21. Mony is paid at the day upon a mortgage yet it seems the Creditor although some are of a contrary opinion may devise the Corn which he sowed and which as yet remains ungathered n Id. ib. 22. Tenant in Taile leaseth out his lands for life The Lessee sowes Corn the Heire recovers upon a Formedon in the Descender and dyeth before the Corn is gathered This Corn according to the opinion of some though others contradict it hee may devise by Will o Perk. 520. Fulb. fol. 37. b. 23. Tenant in Fee-simple dyeth and leaveth an only Daughter and a VVife with Child The Daughter enters and sowes the Land but before Harvest the VVife is delivered of a Son to whose use the next Kinsman possesseth himselfe of the Estate in this case the Daughter may devise the Corn. p Perk. 521. Fulb. fol. 38. a But we will put the case thus The Mother before the Sonne is born recovers Dower against the Daughter and hath that part assigned by the Sherifte which the Daughter sowed In this case she may devise the Corn yet it is a Quaere q Perk. ib. 24. Tenant for tearm of yeares commit waste upon which the Lessor recovers the Land In this case the Lessee cannot devise the Corn r Id. 515. Neither can he if another upon a more ancient Title recovers the said Land against the Lessor s Id. ib. 25. Lessee of a House for forty years deviseth the said House to A. without mentioning the Title which he hath or giveth The Question is what he deviseth And it is adjudged that the Testator deviseth that title which himselfe hath Viz. The term of forty yeares t Dyer fol. 307. n. 69. 26. Lessee for years be que at heth his Interest to A. the remainder of the years to B. in case A. dye before the term expired A. is in possession by vertue of the Devise and not long after Aliens his Right and dies before the terme expired The Question is what remedy B hath to recover his Right as to the remainder of the years unexpired And it was adjudged that he is without Remedy u Id. fol. 75. n. 18. f. 140. n. 41. But if the Testator had devised so many years of the Lease to A as A should live and had ordered B. to succeed in the residue In this case A. could not have so alienated the Term but that B. should have succeeded in the Remainder unexpired w Dyer fol. 358. n. 50 51. fo 359. n. 52. 27. Disseisee recovers against the Disseisor The Disseisee may devise the Corne sown but if it shall be severed from the ground the Disseisor may take it away or devise it x Perk. 519. yet he shall pay the Disseisee Damages y 6. Ed. 1. c. 1. 28. A Testator can neither devise Actions if they be not Judgments nor instruments of Actions z Brac. l. 2. c. 26. a. 28. n. 2. l. 5. tr 5. c. 10. n. 3. Fulb. fol. 30 31. but hee may that which is due upon Action Yet is this devise conditionall namely if the Debt be paid or recovered by the Executors a Perk. 527. 29. Our Law respects principally as doth the Civill Law and Reason likewise the will of the Testator b Cook l. 3. Bullers case fo 27. Fulb. fol. 46. Plow 343. if not contrary to Law If therefore a man having both a Sonne and Daughter living deviseth his Lands to his Daughter Although the Sonne be more worthy yet the Daughter shall have the Lands c New terms v. devise If he adds and annexeth a Condition to the devise which is neither impossible in Nature or Law this shall suspend the devise untill it be performed d Brit. c. 36. Perk. 570. Brac l. 2. c. 6. n. 1 2 3. Swinb part 4. Sect. 13. And this is so farre true that sometimes words are extended beyond their naturall intent e See the rest of his tit and sometimes for causes restrained f Fulb. 41. Plâ—w 540. by reason of the conjectured will and meaning of the Testator 30. A. deviseth Lands to B. conditionally that he pay so much money Although by force of words B. hath an Estate for life only yet the Law adjudgeth him to have a Fee-simple g Brac. Test 18. Perk. 555. for otherwise if B. should dye in a short time He might receive more prejudice then profit by the Devise 31. A. deviseth all his Lands and Tenements to B. B. shall not only have all the Lands and Tenements which A. had in possession but the Reversion likewise h Termes v. Devises 32. If Lands be bequeathed to One to have any to hold to him for ever Or to have and to hold for him and his Assigns for ever In both Cases the Devisee hath an Estate in Fee-simple
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
w Lit. ib. 19. All persons may regularly take formes except spirituall who are prohibited unlesse it be for the maintenance of their Families x 21. H. 8. c. 13. 20. Lessee is obliged to pay his Rent to the Lessor which if he shall faile to do the Lessor during the Terme may distrain and this seems true whether it be agreed so or not For whatsoever is brought by the Lessee into the Tenement is annexed as a pledge for the Rent y Dr. Stu. l. 2. c 9. Lit. ib. Brac l. 2. c. 28. n. 1. but after the tearm he cannot z Lit. l. 1. c. 5. Flet. l. 2. c. 59. the payment of Rent admits no satisfaction for the Lessee is not freed by paying before the day a Coo. Bevills case fo 10. a If Tenant of a Fee-farm doth not occupy the Land leased for the space of two years by reason whereof there can be no distresse the Lessor upon his Action may recover it into his own hands b 6 E. 1. c. 4. Westm 2. c. 21. F N B fo 209 G 22. But in most Leases whether for years 〈◊〉 life it is covenanted that in case the â—ent be behinde at a certain day yearly 〈◊〉 half yearly unpaid that the Lessor may â—â—ter reastume the possession to himself or â—â—at the Lease shall forthwith become void â—â—d expire In the first case if the Rent at â—â—e day assigned be not paied being lawfulâ—â— demanded upon the ground by the Lesâ—â—r not only he in his life time but after his â—eath unlesse he distrained in his life time 〈◊〉 the Rent or received it upon tender c Coo. l. 3. Pennants case 〈◊〉 Heir may enter otherwise not d Dr. Stu l. 1. c. 20. Dier fo 51. n. 17. for â—ent ought to be demanded e Perk. 836. nor in this â—â—se doth the day demand for the man but 〈◊〉 the condition be that the Rent shall be â—â—id in any extrinsecall place there needs 〈◊〉 demand according to the opinion of â—â—me f Dier l. 8. n. 23. 24. though others more modern affirm â—â—e contrary g Coo. l. 4. Burroughes case fo 73 23. If Husband and Wife hire land at too â—â—ere a Rent the Husband dying before the â—earm the Wife may leave it and if the Husâ—and survive the wife and dye his Execuâ—â—rs have the same liberty If the Testotors Goods are not sufficient to satisfy the other Creditors the Rent being computed for 〈◊〉 tearm of years h Dr. Stu. l. 2. c. 33. Dier fo 146. n. 70. 24. If a man make a Lease for a year upon Condition that the Rent shall be paid at Michaellmas and in the mean time give a generall release to the Lessee of all Actions â—nd Demands this doth not remit the rent i Lit. l 3. c 8. although it seems something strange 25. A Lessee is not only bound to the payment of Rent k Dier fo 4 n 1. but also to use well the thing leased l Id. fo 324. n 34 so that if either he or a third person commits Waste he is liable unto the Lessor according to the penalty of the Statute m 6 E 1 c 5 Dier fo 90 n 9 and 10 and fo 108 n 31 and fo 198 n 43. and is left to take his remedy against the third person n Dr. Stu l 7 c 31 and l 2 c 4 unlesse he be aâ— Infant o Id l 1 c 17 but it is not waste to fell timber for necessary reapaâ—tions p Id ib 26. In selâ—ing and hiring the Law is the same as to the mutual obligation of persons as in Covenants And therefore if the Lessee undertakes for himself to do or not do anything his Executors or Assignes not being named himself is only bound and they free from any manner of Obligation q Dier fo 65 n 8 but this is sometimes disputable A Lessee covenants with his Lessor that if either he his Executors or Assignes alienate the Lands leased to another that then it shall be lawfull for the Lessor or his Heires to re-enter and to eject the Lessee his Executors or Assigns and not long after the Lessee falls sick and by his last will constitutes his wife his Executrix and dies the wife marryes a second husband who alienates her right and tearm in the said Lands and it was much questioned whether in this case the Lessor may enter in regard this second Husband was neither Executor nor Assignee of the first But in the end it was determined for the Lessor because the second Husband was in this case adjudged Assignee in Law though not in fact r Dier fo 6 n 5 27. If a Lessee oblige himself to leave houses in repaire at the end of his tearm the Lessor cannot bring his action of Covenant untill the Term be ended although the Lessee should pull the houses down yet he may bring an Action of waste s F. n. b. fo 145. K. 28. Lessee is not obliged against a greater force or against tempests or Incursions of enemies unlesse he do expresly oblige himself to it t Dr. Stâ—â— l. 2. c. 4. Dier fo 33. n. 10 11. fo 36. n 35. fo 56. n. 14. 12 H. 8. fo 1. b. v. Lit. l. 1. c. 8. 29. Tenant at will is not bound to repararations as Tenant for years u but if he commits waste he is liable to an Action of Trespasse w id ib. Dier fo 90 n. 9 10. Of Partners or Fellowship TIT. XXVI OUr judicious Lawyers are very frequent in disputing the Rights of those partners or fellows who hold Lands or other things pro indiviso and these they call either Partners joint-Joint-tenants or Tenants in Common a Little l. 3. c. 2 3 4. 1. Partners are either by the Law or by Custom by law b Termes v. Parceners Little ib. two or more women of the same degree who for defect of Heires Males succeed by equall Right in the inheritance of their Ancestors or else the sons of two women to whom Lands not formerly divided by their mothers descend c Little l. 3. c. 1. and 2. by Custome are those who from the Custome of divers Provinces which we call Gavell kind do equally succeed their Ancestors whether they be brothers or for default of them sisters Nâ—ices or Aunts 2. Joint-tenant are either called so properly or improperly e Instit Jur. Com. c. 15. Dier fo 67. n. 18. fo 160. n. 43. properly are those who hold a Fee or Freehold or any reall Chartell by force of the same Title pro indiviso improperly are those which possesse any personall Chattell so and those are thus ioyned either by their own will solely as purchasing the Premises with their own mâ—nies and so possessing them pro indiviso or else by the will and bounty of others as where one gives any thing to two or more iointly f
by right of Inheritance But if Tenant in Socage dies the next Heir whether Son or Daughter if an Infant shall be in the custody of the next of Kinn on that side to whom the Inheritance cannot discend for examples sake if the Estate come by the Fathers side then the Mother or if she be dead the next of Kinn on her side shall have the custody of the Infant If by the Mothers side then the next of kinn on the Fathers side a Glan l. 7. c. 11. Lit. l. 2. c. 5. Bract. l. 2. c. 77. n. 6. 52 H. 3. c. 17. Broo. tit Guar. prochein am 11 12 13. Plowd 295. and this is the reason of the Law Because the Infants may be in less danger in their hands to whom their death is least advantagious b Fort. c. 44. 45. so that none that is a Coparâ—â—ner in Socage ought to be in the Gard or Custody of her Coparâ—â—ner or her Husband but of some of her Parents and if any one shall buy the Gard of the Lands or the marriage of the Daughters and shall take any of them to Wife he is presently suspected and shall by the Law loose the Gard of the Body and the marriage of the rest by reason of the suspition c Fle. l. 1. c. 9 1. But if two Brothers purchase Land 〈◊〉 them their Heires the elder if at age â—ay have the Gard of the younger being 〈◊〉 Infant provided they be both legitimate d Brit. c. 35. fol. 92. 2. And these Heires according to the â—â—cients go out of Wardship at fifteen years 〈◊〉 age e Glan l. 7. c. 9. Bract. l. 2. c. 36. n 2. Flet. l. 1. c. 11. But according to the moderne â—â—actise at fourteen f Lit. l. 2. c. 5 Doct. Stu. c. 7 fol. 141. F. B. 118. in regard the Law â—â—pposeth that at this age they are able to â—â—rform those things which belong to Husâ—â—ndry But Tenants by the custome called â—avelkinde being sixteen years old comâ—â—eat may alien their Lands by Feostment â—â—thout license from their Guardians g Dyer fo 301. n. 41. Fitzh Custome 11. Brook ibid. 50. 3. So also Tenants in Burgage who are â—â—fants their Father or Ancestor being dead 〈◊〉 committed for the same reason which â—enant in Socage are to the Custody of â—â—eir Kindred From whence they are freed 〈◊〉 soon as they shall be able discreetly to â—unt Money and measure Cloth and perâ—â—rm other such like businesses But in this â—â—se the certain time is not defined but is adâ—â—dged by the discretion and maturity of the â—eires h Bract ubi sup Flet. l. 1. c. 11. 4. A Woman is supposed to be of perfect â—ge in Socage in all cases so soon as she is aâ—e to know how to dispose of her house and 〈◊〉 do those things which belong to the disâ—â—sing and ordering her Family and is able 〈◊〉 understand what appertains to Cone and â—â—ey which cannot be before she be fourteen 〈◊〉 fifteen years old because this age requires â—â—der and judgment i Bract. l. 2. c. 39. n. 2. 5. A female Heir was according to somâ— ancient writers judged equall with a malâ— as for years according to the diversities â—… Tenures viz. That she should have the samâ— age in Burgage and Socage as a male â—… wit fifteen years And in Chivalry likewiâ—… as the male viz. 21. And that then â—… Wardship should end But according tâ—… others a Woman is said to be at full age iâ—… Chivalrie at fifteen for then they say she able to order her house and to marry a Huâ—…band who shall be able to perform Servicâ—… for her k Bract. l. 2. c. 37. n. 3. But our moderns define otherwise and here they put a difference whether she be fourteen years old at the death oâ—… her Ancestor or not for if she be she dâ—… immediately receive the profits of her Lanâ—… otherwise not till she comes to sixteen l Instit Jur. com c. 24. Lit. 2. c. 4. 6. Guardian in Socage shall give an aâ—count of his Office to his ward when tâ—… Wardship is out m Lit. l. 2. c. F. B. 118 119 262. Flet. l. 1. c. 12. But he may commit tâ—… Custody of his Ward to a stranger and hâ—… Grant shall be good n F. B. 143. P. Of Disfranchisement or Deminutio capitis TIT. XVI THat which the Romans called Deminâ—… coepitis and devided into three kindes 〈◊〉 so distinguished by the English Notwithâ—â—â—nding that we do tacitely acknowledge it â—â—uble by our Lawes That which they tearâ—â—ed the least we wholy omit for those which 〈◊〉 emancipated by their Fathers do not â—â—ose the Right of their former family But 〈◊〉 they may at least making a partition 〈◊〉 Goods and Chattells be received as to 〈◊〉 successiion or Inheritance of an Intestate 〈◊〉 those who are adopted by others have 〈◊〉 rights of their new faculty either â—â—on the sole agreement or the expressed â—urtesy of those by whom they are adopted â—â—thout assistance of the Law required or â—â—pected a Sup. tit Adopt 17. 1. Those who are Servi paenae namely â—â—ose which have sentence for Treason or â—â—lony loose all that can be lost Not only â—â—eir Freedome and Liberty but even all â—â—at they have and their lives also b Stan. placit Coro l. 2. Prerog c. 44. Nor â—â—ve they other Successor then the Excheâ—â—er or the Lord of the Mannor as we shal â—â—ew else where c See the 4. Book tit of Pub. Ju. and therefore we may â—â—th reason call this the greatest Disfranâ—isement or Capitis diminutio 2. And although the ancient Law which â—â—nished d Brac. l. 3. tract 2. c. 16. Brit. c. 16. those who took Sanctuary for reason be abrogated e 22 H. 8. c. 14. 36 H. 8. c. 13. 28 H. 8. c. 7. 32 H. 8. c. 12. 33 H. 8. c. 15. 1 E. 6. c. 12. 2 E. 6. c. 2. c. 33. 5 E. 6. c. 10. yet at this day â—ere are certain crimes which are punished â—â—th abjuration f Ch. de Forrest c. 10. 13 Ed. 1. c. 35. 25 H. 8. c. 14. 35 Eliz. c. 2. but those who undergo â—â—is penalty seem to undergo the lesser disâ—anchisement or that which the Romans â—â—lled Medium capitis diminutionem 3. That which was tearmed Cognationis jus 〈◊〉 the lesser and more inferiour Capitis diminutio and seems to be wholy taken away with us for those who abjure the Realâ— are wholy thrust out of protection g Bract. Brit. ut supra anâ— those who are out of the Allegiance of the supream power of England have nothing iâ— England h Bract. l. 5. c. 23. n. 3. Of the lawfull Guardianship of Lords or Patrons TIT. XVII OUR Lawes do not decree any thiâ—â— that I know concerning that Patronâ—â—â— Tutela which the Roman Law mentions 〈◊〉 we have another kinde
of Kindred But as for the other they do not transfer it upon the Children of the Patrons but upon the Executors rather a Lit. l. 1. c. 5 for they reckon the custody of Wards among Chattells reall b N. Ter. ver Chattels Flet. l. 1. c. 11. and therefore if the Patron or Lord of the Fee do not demise them by his last will they are transmitted by the Common Law to the Executors of his last Will. Of the Attilian Tutorship which is appointed by the Lex Julia Titia TIT. XX. WEE have sometimes Tutores Dativi or deputed Guardians amongst us For in case the Mother being dead the Father dy intestate and leaves Children under age who have no Fee to succeed unto it often happens that the Ecclesiasticall Judge commit the Guard of them to such as shall have a care of their Persons and Patrimony untill they come to fourteen years of age And this is often attested and confirmed by an Instrument authentickly sealed But our Law doth not compell any one to such an Office nay rather the Judges stir up and make choise of those whom affinity and consanguinity oblige to this work of love and Charity a Swinb part 3. Sect. 9. 1. And probably that Guardian may not improperly be stiled Dativus Tutor which Bracton mentioneth b l. 2. c. 11. n. 1 Brit. c. 34 40 62. Fle. l. 1. c. 9. when he saith that it is convenient for him that giveth Lands or Tenements to an Infant to appoint him a Guardian also giving this reason because the Donor cannot be Guardian least he seem to continue his own Seisin nor can an Infant consent to the Gift but by his Guardian 2. The supream power may by Letters Patents constitute to an Infant an universall Guardian to answer appear for him in all Actions begun and to be begun and that before any Judg or Judges whatsoever Or the same power may authorise two or three Guardians joyntly or severally to answer or prosecute any Action in his behalfe and the same letters at the instance of the Infant may give power to the same Guardians joyntly and severally to substitute other Guardians under them who may in their place and stead act for the said Infant in all causes and complaints or make defence for him c F. B. fol. 27. b. 3. Nor is it unusuall in Court-Barons or other liberties for the Steward or municipall Magistrate to appoint Guardians to Infants d Kitch in preceden pa. 347. Of the Authority of Tutors and Guardians TIT. XXI AN Infant under the age of twenty one years cannot make any contract in his own name except for those things which apâ—eâ—tain to his necessary Food Rayment and Education a Brook tit Inf. 51. without the Authority and consent of him under whose power and custody he is b New book of Entrys tit .. Bro. non fuit comâ—os mentis Bract. l. 5. trac 2. c. 11. n. 1. nor can he commence his Suit against his Guardian c Bract. l. 5. tract 4. c. 4. n. 5. Brit. c. 121. An Infant may by himself and by his own Deed better his condition but he cannot preiudice himself d Bract. l. 2. c. 5. n. 8. 1. There is something more particular in those who hold by Knights Service For the capital Lords have a plenary power over their whole Estate without their persons and sometimes over their Persons also and so that they have the full disposing of Advowsons in case of Vacancies and in granting giving or selling their Wards And in case of female Heires of marrying them or selling their Marriages and generally of disposing all things whatsoever for the profit of the Heir e Of late for their owne proper profit Brook Gard. 2. Fitz. Accompt 36. as if they were to dispose of their own and better if possible They may sell their custody of the Lands and the marriages of the Heires if unmarried but they cannot alien any thing of the Inheritance or sell the Remainder Notwithstanding as for the heiâ— which are in custody they are to treat then honorably and to discharge the dutyes belonging to the Inheritance according to the quantity of the Inheritance and for the raâ—â— according to the time of the Wardship They may manage the affraies of their Heires recover their right in those things wherein the Heir as an Infant may plead or move or prosecute a Suit in their behalf namely of the rights of possession of proper Seisin or of the Seisin of an Ancestor But in aâ— Action of right in case of property they can neither act nor answer for them except of that of which the Infant was infeoffed during his Minority f Bract. l. 2. c. 37 n. 3. Brit. c. 34. fol. 90. 2. Guardians ought to sustain and keep in repaire the Houses of their Wards as also their Parks Warrens Fishings Mills and other Appurtenances least by neglect they be impaired or ruined by which wast may be found They are also bound to redeliver the Lands in due time free at least as they received them and that Gratis quitted both of releife and Fine in case they be accorded and agreed concerning Marriage g Flet. l. 1. c. 12. Mag. Cha. c. 4. West 1. c. 47. 6 Ed. 1. c. 5. West 2. c. 35. 3. The same Authority also have Guardians in Socage to contract to manage Suits in Law and to do all other things which are behoovefull either for the conservation or augmentation of the Estate of their Pupill But these are liable to render an account when their Wards shall come to age h F. B. fol. 118. b. 4 A Guardian may make Oath for his Word i Flet. l. 6. c. 10. 5. In some Cases our Law doth so highly â—avour Infants that it will not suffer them to â—un the hazard of Judgement although with â—he consent of their Guardians but stay proâ—eeding untill they come of age For in case of right or property of their possessions they can neither sue nor be sued except for such which themselves have gaind k Glan l. 7. c. 9. Bract. l. 5. tract 5. c. 21. n. 2. yet formerly there were bound in case of a Fine acknowledged in Court in case of a proper inâ—ury or Dower or in Case of what themselves had recovered l Dyer fol. 104. f. 137 but at this day they are not bound in case of Fine m Flet. l. 1. c. 9. 4 H. 7. c. 24 F. B. fol. 21. By what means Wardships expire TIT. XXII ALL Wards whatsoever not holding by Knights Service are without more-adoe freed from their Guardians at fourteen years of age a Lit. l. 2. c. 4 but those Tenants if male not till one and twenty if female not till fourteen b Id. ibid. or in some cases not till sixteen years of age c V. sup tit 15. Sect. 4. and although a Woman being full
Houses Parks Warrens Fishâ—ooles Mills and all things whatsoever apâ—ertaining to the said Land out of the proâ—â—ts of the said Land And to â—ender to the Heir when he shall come to age his said â—and free from all Services of the Plough â—t least as free as he found it Nor shall he â—ake any thing of the Land of the Heir as he â—eing under age more then the ordinary cuâ—tomes and reasonable Services And thâ—s â—ithout destruction or waste either of men or goods which if he shall do whether there â—o any prohibition precede or not he shall â—oose his ward and pay Damages And deliâ—er up the Land for his default to some disâ—reet and lawfull men of his Fee or to the â—ext of Kynn b Bract. l. 2. c. 37. n. 3. l. 4. tr 6. c. 19. n. 2. Mag. Char. c. 4. 5. 2. And it is true regularly that no one â—â—all remain in the custody of him who may â—e suspected that he will lay claim to the â—nheritance Whence it followes that if there â—e many Daughters and Heirs in Socage â—one of them shall be wards to the rest but â—hey shall remain in the custody of their next of Kinn who are allyed to them in that line â—o which the Inheritance cannot discend â—ut if they hold by Knights Service they shall be all under the custody of another Capitall Lord and not one alone under the Guard of another Lord by reason of the said suspition untill they come to perfect age c Bract. l. 2. c. 37. n. 6. l. 2. c. 5. n. 8. 3. A Ward may prosecute an Action of waste against his Guardian and may constitute his Attorney in the Action d F. N. B. f. 27. H. The end of the first Book THE Second Book of the Institutes of the Lawes of ENGLAND Of the division of things and the gaining a Property in things TIT. I. WEE have spoke before of the Persons and conditions of men and persons in Law We are therefore now by consequence to treat of things by dividing and distinguishing that they may the better be understood a Bract. l. 1. c. 12. in the begin 1. Now the first division of things is this that some are in Patrimony and Inheritance and some not Those which are of or belonging to our Patrimony and both moveables and immoveables which we have liberty to make use of according to our wills 〈◊〉 necessities Rights and Services are not properly to be reckoned amongst Goods but iâ— regard they are not extreneous they may the rather be accounted such b Bract. ib. n. 2. Flet. l. 3. c. 1. 2. Those which are not appertaining 〈◊〉 our Patrimony are things sacred religioâ—â— and common c Bract. ib. n. 5. 3. By naturall right these things are to be esteemed as common Running water the Air and Sea and the Sea shores as accessory For no one is prohibited comming to the Sea shoares whilst he abstaines from Buildings and Villages because by the Law oâ— Nations the shoares are as common as the Sea And therefore those Buildings which shall be erected either in the Sea or shoare are the Builders by the Law of Nations and in this case the soile follows the propriety oâ— the building although in others it be contrary the building giving place and following the propriety of the Soile d Bract. d. l. 2. c. 12. n. 5. 4. Things which are to be esteemed publick are Rivers and Ports And therefore the right of fiâ—hing used to be free to all as also the use of the banks are publick as the Rivers themselves by the Law of Nations Wherefore it is as free to every one to joyn Shipps and fasten them unto them to tye their cables or ropes to the Trees growing on them to lay any burden upon them as it is to sail or row in the Rivers themselves but the property of them is theirs to whose Fee they adione And for that reason the â—rees which grow thereon are theirs likeâ—ise And this is to be understood of those â—ivers which have a perpetuall and continuâ—l course because those which are but temâ—orary may be private e Bract. l. 2. c. 12. n. 6. but these which â—ere formerly the Peoples And by our Law â—â—ansferd upon the supream Power as repreâ—â—nting the person of all the People and conâ—â—quently of the Common-wealth it self f Plâ—w Cas Reinyer Fogassa â—herefore at this day whosoever disburdens 〈◊〉 unlades his Ship upon the banks of pubâ—â—ck Rivers must pay custome Hoc nomine to â—â—e supream power or its deputed Officers g 3 H. 7. f. 14 nor can any man fish in publick Rivers â—ithout license from the supream power first â—btained h F. B. f 88. h. 5 Where note the difference between â—ublick and common Publick are taken for â—or those things which are the Peoples geâ—erally viz. Which are for the use of man â—nly But those are common which are for â—he use of all creatures i Bract. ib. â—â— 6. Brit. c. 33. Flet. l. 3. c. 1. 6. Those things are said universall and â—elong to the generallity not to particuler Persons which are in Cities Theatres Raâ—es and the like which are common in Cities and are for the use and in the power of the Generality But of things which belong and appertain to the generallity some are tearmed Venalia not from the use but the power under which they are and profit as the lands and Servants of Cities so that they cannot be called any ones particularly k Bract. ib. Brit ib. Flet. ib. Some things there are which may many waies be said not to be the goods of any one as first by the Law of nature Wild Beast Birds Fishes and Men. Next by Judgment as things Sacred religious and holy Theâ—â— by accident as an Inheritance lying before it be entred upon or appropriated and 〈◊〉 Wreck By will as any thing that is left and forsaken and by process of time as Treasure l Bract. ib. n. 10. l. 3. tr 2 c. 3. n. 4 5 6. D Stu. f. 157. Brit. c. 33. Flet. l. 1. c. 43 44 47. l. 3. c. 1. but by our Law Wrecks things that are left and forsaken and Treasure belong to the publick Exchequer m Kitch f. 12 f. 30. f. 40. Stat de Prerog Reg. c. 11. 8. Things sacred are those which are duely set apart by the Clergy for Gods Service As Churches and Gifts duely dedicated for holy uses as Chaliees c. Which are forbidden to be alienated except for the redemption of Captives also Church yards and Chappell 's and although structures happen to be dimolished notwithstanding the ground remaines sacred still Now Sacruâ— differs from Sacrarium Sacrarium signifying only a place where holy things are laid n Bract. ib. n. 9. l. 2. c. 27. n. 2. c. 5. n. 7. Brit. c. 33. and besides all these the Kings High way
other which is so only by agreement Of the first sort are Tenants by the Curtesy of England and tenants in Dower for such is the Civillity and courtesy of our nation that if a man marry a woman that is an Heir and have Issue by her born alive that Land of which he is seised in right of his Wife in her life time he shall hold after her death for tearm of his own life f Bract. l. 5. tr 5. c. 30. n 7. Flet. l. 6. c. ult Dr. Stu. l. 1. c. 7. l. 2. c. 15 Dyer fol. 25. n. 159. f. 95. n. 35. In. J. co c. 8 which Law some ascribe to Henry the first g Spec. Just l. 1. a woman also whose Husband in his life time was seised in Fee shall have the third part of his Estate he being dead and in some places the halfe h Lit. l. 1. c. 9 in some the whole for her Dower i F. N. b. fo 150. P. Bract. l. 4. â—r 6. c. 13. n. 2. Dr. Stu. Bri. 1. c. 10. if at least she be nine years old that she may claim a Dower k Lit. l. 1. c. 4 Flet. l. 5. c. 22. there is another sort of Dower which is free-hold also namely Dower which is by consent which is that that is agreed on before marriage at the Church door or otherwise between the man and Wife l Lit. l. â— c. 4. Inst Jur. com c 9. Flc. l. 5. c. 22 Brac. l. 2. c. 39. breifly all Lands and Tenements which are either by bargain gift or any other contract held for term of ones own life or anothers are comprehended under the name of Free-hold m Inst Jur. com c. 6 Bract. l. 2. c. 5. n. 7. 19. And as Fee n Dyer f. 213 n. 42. fol. 288. n. 55. so free Tenement or free-hold may be of a thing incorporall as an office for life o Bro. tit Tenures n. 25. Dyer f. 211 n. 19. Thus have I given you a description of estates in Fee Inheritances and Free-holds the third is a kind of possession or Tenure comprehended under the name of Chattells â—â—lls and they are those which we hold 〈◊〉 Tearm of years or at the will of another â—enant at will is two fold viz. either by comâ—on Law or by the custome of any Mannor â—hich is by Copy of the Court Roll or by â—erge p Inst Jur. Com c. 2. 3. Lit. l. 1. c. 9. Kitch fo 102. b. Coo. l. 3. case Heydon fo 8. a. b. f. 9. But this kinde we referr to the â—hapter of uses Of which hereafter q c. 4. of this Book we all speake Of the Services which Inheritances are bound unto TIT. III. BEcause Services are reckoned amongst those things which are tearmed incorpoâ—l we shall take a view of them now there a certain service or Servitude which subâ—cts one man to another a See l. 1. c. 3. but it is not this which wee intend here to treat of but that which subiects one Estate or Fee unto other Yet is it like that other which renâ—rs one man a Servant to another for as at constitution is called Jus Gentium the â—aw of Nations which against nature subâ—â—cts a man to the Power of another so may also be said of Service or that constitution â—hich subiects one house to another and one state to another And thus Services may 〈◊〉 divided into such as appertain to Cities â—nd such as are Rurall b Brac l. 4. those which beâ—â—ng to Cities and for the most part such as the Civil Law mentions namely such 〈◊〉 inherent in the very buildings and theâ—â—fore called from the City Fees because 〈◊〉 call all buildings City Inheritances thoâ—â— built in Villiages c Bract. ib. Of this kind are thâ—â— not to build a House higher not to hinâ— lights or prospects to convey and keep 〈◊〉 Gutters and sincks from the yard or 〈◊〉 of ones Neighbour to lay a prop upon 〈◊〉 ther mans Wall or ground for the suppâ—â—tance of a House to beare an Incumberanâ—â— to have a Way Road or Passage For thouâ—â— a Way and Road be Rurall Country Seâ—vices yet are they City also when applyâ— to City Inheritances For it often happeâ— that a neighbour hath a power and libeâ—â— of passing through a Yard belonging to 〈◊〉 House or of going up ones staires to 〈◊〉 own chamber Rural are such as are not inâ—â—rent to buildings but are wholly withoâ—â— them And these also are almost the saâ—â— which the Civill Law reckons if we exceâ—â— those which the customes of Fees have intrâ—duced as a Road Path-way Aqua duct d Dyer fo 248. n. 80. fo 319. n. 7. drawing of water folding of Cattell paâ—â—ring of Cattell quenching of Lime digginâ— of Sand taking of Stone and the like Noâ— both the kindes of Services are either reall 〈◊〉 personall with relation to the thing or person to whom they are due 1. Fee Servitude which both by our Fâ—â—dists and Lawyers is called Service is either military and noble or Rustick and Ignoble e Fulb. divis of seign and services f. 20. b. military is that which performs some duty belonging to military discipline or some other thing that is honorable and this also â—s double one which is due to the King only f Lit. l. 2. c. 8 the other to the Lord of the Fee notwithstanding that he be Feodary to another that which is due to the King is double also namely Serjeanty and Castle-gard 2. Serjeanty is either Grand or Petit Grand is where any one in the name of his Fee is personally bound to perform any Office or other honorable thing to the King g idâ—b Flet. l. 1. c. 10. and l. 3. c. 16. which some also affirm may be due to a common Person h Bract. l. 2. c. 35. n. 6. of this kinde is the bearing the Kings Standard or Spear in Warr the leading conduct of his Army the performing the Office of Martiall the sounding of a Horn at the incursion of any of the Kings Northern Enemies to send an armed man if himself will not goe to fight under the King when ever necessity shall require within the four Seas to carry the Kings Sword before him at his Coronation to perform the Offices of Sewer Taster Carver Butler or Chamberlaine i Coo. l. 2. case Cromwell fo 81. a. And in such Services all the Barons in ancient time were obliged 3. Petit Serjeanty is that which renders to the King as an acknowledgement of the Tenure yearly a Bow Spear Dagger a paire of Gantleâ—s or a pair of gold Spurrs an Arrow a Horse or any such small thing which belongs to War Now he that holds such a Fee doth not perform any personall Duty but rather Patrimoniall and reall and that certain And therefore differs somewhat from the very nature of a military Service having a property of a
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
the Son a Knight or to marry the Daughter Quit-Rents and others which for that they depend upon divers Customes of severall places and upon the severall will of Lords is impossible punctually to reckon p Bro. Tit. Tenures n. 50. 53. 58. 29. Secta ad Curiam is a service which binds the Tenant to frequent the Court of his Lord q F. N. B. fol. 158. But they are not Feodaries alone who are obliged to this For wee have mention made of a four-fold suit of Court One by Covenant and Oligation Viz. when another who is not the Lord of my Fee Covenants with me or my Ancestors though not his Feodaries to performe this suite of Court Another by Custome where any one and his Ancestors time out of mind were wont to come to the Court of another and his Ancestors though not Lord of their Fee The third we may call a Servile suit which the Feodary performs to the Lord under the notion of service The fourth is Royall by which are found to goe twice a year to the Sheriffs Courts or Leet Courts that they may not be ignorant of what is done there for the peace of the Common-wealth Now our Authors call it Royall though by corruption some rearm it reall because the maine reason of it is to perform Legiance to the King for there all above 12. yeares old r Termes of the Law Tit. sug take the Oath before mentioned 30. Secta ad molendinum is a service by which the Feodaries as bound by Custome to carry their Corn to be ground at the Mill of their Lord. Å¿ F. N. B. sol 122. 31. Heriot otherwise Hariat is compounded of the Saxon words Here Geat Here signifying an Army and Geat a Journey and it was a Tribute payedunto the Lord when hee went to Warre t Lamb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Vero. Heriot Bracton sayes that Heriot is alone with Releife u L. 2. c. 36. And Britton w C. 69. Flet. l. 1. c. 18. That it is the Gift of the Feodary at his Death given to his Lord by which he leaves unto him the best Beast he hath or some other thing according to Assignment And he saith that this doth not touch the Lord nor the Heir or Inheritance not that it is to be likened to Releif But that it rather springs from the love and courtesie of the Tenant coming either from a Right or necessity of Duty and that both from villains and Free-Tenants Heriot is at this day a service by which the Tenant is bound to leave to his Lord the best Beast or for defect of that some other moveable which hee hath at the time of his Death And this is two-sold namely servile which Tenant in Fee simple payeth or constumary which is â—yed by Tenant for life according to the â—ustome x Bro. Tit. Heriot n. 5. Of Uses and Profits TIT. IV. IT appears from what hath been said that Services are either reall or personall a Brac. l. 4. tr 1. c. 39. 〈◊〉 reall we have already spoken personall â—re such as are due unto the person b Id. ibid. and â—is kind is twofold one due from the perâ—on of one to the person of another of which â—lso we have made mention before the other which is due from an estate to a person of which sort are profits uses Habitation whereâ—â—re uses and profits in respect of the perâ—on to whom they are due is a Right in reâ—pect of the thing which is due a Serâ—ice c Id. l. 4. tr 1. c. 37. n. 1. 1. Since there are none in England besides the Soveraigne power who hath a plenary and absolute dominion over immoveables it is not hard to discern who they are that are Possessors of estates as to the profits the estates being not wholly theirs which we shall tearm usufructuarii and who nor namely whether all Subjects by what Title soever they hold or onely some who hold by this or that Title for those which have a Fee have onely a power profitable d Wesenbec dâ— feod c. 1. n. 4. which according to the Feodists ceaseth they violate the faith due to their Lord 〈◊〉 not by our Law save in Case of Felony e Stanf. plac Coron l. 3. c. 30 now he which hath any use or profits loâ—â— hath some way or other a power also f Bra. l. 4 tr 1. c. 36. n. 2. Moreover he which hath a Fee-farm whoâ— the Civill Law of the Romanes called Eâ—phytenticus g vectigal ager which is one that hath anâ— state to improve although he have a perpâ—tuity yet he payes a yearly Rent by 〈◊〉 of an acknowledgement of the Seignâ—rie h Brit. c. 66. Lastly he that hath a Freehold and abuseth it is liable to an Action 〈◊〉 Waste i F. n. b. fo 55 Dr. Stu. l. 1. c 23 flet l 1. c. 12 which should not be were 〈◊〉 sole Lord and had absolute power in 〈◊〉 disposing of it but Bracton is very clear 〈◊〉 declaring what Titles our Lawyers incâ—â—â— under the notion of uses and profits for 〈◊〉 stinguishing between a Free-hold and aâ—â— state in profits he is much more diligentâ— distinguishing between Fee k l 4 tr 1 c. 36 Plow fo 83 and Fâ—â— Farm or farming of the profits for thâ— in those the possessor hath a perpetuity in theâ—â— only an estate for life whence it follows thâ— he onely is an usufructuary in an Estate 〈◊〉 us who hath Lands or Tenements for Teâ— of years or at the will of another or 〈◊〉 who hath Lands by way of pledge or security which we call Mortgage or by way of Eâ—â—cution whom we call according to the â—â—versity of the cause Tenant by Elegit Tenant by Statute Staple or Statute Merchant or lastly he who hath the Lands of an 〈◊〉 in Right of Guardianship untill he come to full age Now an estate of profits may be created with us either by gift and bequest or by conditional agreement l Inst com c. 5 Flet l. 1. c. 12. and it appears that our ancestors did sever the profits of a Fee from the propriety untill it was changed by Act of Parliament m 27. H. 8. c. 10. Coâ— l. 1. Chudleys Case but those estates which are held by Copy of Court Roll or by the Verge at the will of the Lord cannot be Leased out without the consent of the Lord above a year n Instit com nor can they be bequeathed or aliened by any agreement without being first surrendred into the hands of the Lord and from thence received by him to whom the former Tenant desires to alienate them o Id c. 15. 3. It is held also amongst us that uses and profits may be of those things which are extinguished by use and daily change so that without all doubt one may bequeath or by agreement create an use of Servants Money Oxen Cowes
cannot give a reasonable answer to any ordinary and easie question e Swin patt 2. Sect. 4. also a Servant for the same reason by which he is forbid to give whilst living f Sup. title Donation S. 5. can dispose of nothing by his last will whose possession is seised on by his Lord g Perk. 29. Dr. and Stu. l. 2. c. 43. or claimed by word only h Bre. Villein 50 unless in case that he be Executor to another in which case he may constitute another his Eextutor even against the will of his Lord for that the goods which are contingent to this Office are not his to his own use but to anothers i Id. ib. 68. 73. so also a Captive because himself possesseth nothing but is in the possession of another k Brac. l. 2. c. 16. n. 5. which is true likewise in those whom we called Out-lawed l Id. l. 3. tr c. 13. Dr. and Stu. l. 1. c. 6. and l 2. c. 9. 3. Moreover he that is guilty of Treason hath not a power to make a will Because if he be afterwards convict of that Crime he forfeits what ever he possessed at the time of the Treason committed to the King and the Exchequer m 5. E. 6. c 11. Swn par 2. Sect. 12. 1. R. 3. c. 3. nor he that is guilty of Felony but here we must distinguish for if such a one dye before conviction he may by his Will bequeath both his Lands and Chattells or if he be obstinate before the Tribunall and refuse to put himself upon the Triall of God and his Country according to the Custome of the Common-wealth or shall stand mute for in this case if he dy intestate he reservs his Lands intire to his next Heir or if testate he may dispose of them to whom he please and forfeits his Chattells only Moreover if he be Convict he looseth his Lands from the time of the fact committed but his Chattells only from the time of his Conviction so that before Conviction he may give them or alienate them at pleasure n Swin par 2. S. 17. Bro. Forfeitures 5. 28. 65. 89. 103. 113. 117. 4 He that murders himself is by us tearmed Felo de se and hath no other Successor as to his Chattells but the Exchequer o Bract. l. 3. tr 2. c. 31. yet it is much doubted at this day whether he forfeits his Lands or not p Stan. pl. cor l. 1. c. 3. but that his Chattells come into the Exchequer is out of question q See tit Mur. 5. An Heretick by our ancient Law could not make a will r 2. H. 5. c. 7. but that Law is now abrogated s 1. E. 6. c. 12. so that here we have nothing certain but what we receive from the Canon Law 6 A notorious Usurer if he exact above ten pound Per cent per an is liable to all the punishments which the Canon Law inflicts t 13. Eliz. c. 8. and therfore seems incapable of making a Will u Swin par 2. S. 16. 7 Feme Covert is absolutely prohibited to dispose of Lands of Inheritance by her last will w 34. H. 8. c. 5. or of Goods or Chattells without the license of her Husband x Swin par 2. S. 9. Bract. l. 2. c. 26. n 1. Cov. Ognels case 51 unlesse she were an Executrix of a former Husband or of any other person before she entermarried with this Husband or hath any title to any summ of Money as yet unpaid for in these cases she may dispose of the Goods by will which he hath by reason of that Office or by right of Action and constitute either her Husband or any one else her Executor y Bro. Testa 9. 11. 13. and. Execut. 132. 175. 178. Glan l. 7. c. 5. Perk. 502. but if we beleeve Bracton it was an opinion that a VVife might make a will and dispose of her reasonable part which she should have had if she had survived her Husband and especially of such things as were permitted or given her for Ornament which they called her own as Robes and Jewells z l. 2. c. 26. n. 1. F. N. B. fo 122. Flet. l. 2 c. 57. but this Law was either customary in some particuler place or else it is long since vanished 8 Lastly they which enter into Religion cannot make a will for to those Goods which they dispose not of before entrance their next of Kin succeeds as if they had died intestate a Bro. Testam 9. but it is otherwise of Ecclesiastick Seculers whose Goods are by the custâ—â—e of England reputed lay whether they be acquired from the Church or otherwise b Dr. and. Stu. l. 1. c. 39. so also is Corn growing upon glebe Land and not yet gathered c 28. H. 8. c. 11. 9. The King however in a capacity to make a will cannot by his Testament dispose of his Kingdome or the Goods of his Kingdome viz. his Crown or Regalia to another d Fitz. Abridg devise 5. and Execut. 108. Swin p. 2. Sect. 28. 10. A Bishop or Abbot in regard their Baronies were of the Almes and Charity of the King and his Predecessors cannot alienate any part of their Demesnes as to the Remainder without the Assent and confirmation of the King e Glan l. 7. c. 1. 11. So also a Bishop Dean or Master of any Society is prohibited to make a will of any of those Goods which they held in common with the Chapter and Society f Dr. and Stu. l. 2. c. 39. Bract. l. 2. c. 14. Perk. 469. 497. 499. Of the Dis-inheriting of Children TIT. XIII OUr Law remits that positive dis-inheriting of Children to which the Roman Laws obliged their Citizens to the affection of Parents which it presumes nature to have engraven so firmely in the minds of all that it is not possible to be rooted out but by the extream debeauchery of Children VVherefore every one hath a free power of disposing of his goods whether moveables or immoveables And those whether purchased or descending from Ancestors certaine unlesse it be of Fee-Taile for that cannot be disposed of but where the Entaile is cut off by fine and recovery a 4. H. 7. c. 24. 32. H. 8. c. â— Plow 356 c. Coo. l 3. case of Fines 1. Yet the ancient VVriters of our Law doe scarce hold it lawfull for a man to bequeath by his VVill an Inheritance received from his Ancestors to any one but the next Heir under which notion they will lay the burthen of the Fathers debts upon the Heir b Glan l. 6. c. 17. 18. l. 7. c. 1. Brac. l. 2. c. 36. n. 1. â—rit c. 34. But our later times have provided a sufficient remedy for this c 3â— H. â— c. 1. And therefore the Heir is not at this day lyable to the debts of his
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
because that had this Condition annexed viz. I ordain A. mine Heir and if he will not be Heir then my will is that B. shall be my Heir e Inflit. eod now this of ours iâ— not bound but is rather tacitely imposed contrary to the Legator as namely thus I give and bequeath such a Fee to A. and if he accept it then I will that such or such shall be his Heir or Successor f Westminst 2 c. 1. Dr. Stu. l. 7. c. 24. 2. In like manner if we bequeath any thing conditionally to any one we make Substitution to another in Case the condition be not performed for Example I give a hundred pounds to A. when he shall marry a Wife or if he shall not get a son of my Daughter lawfully then I give the said hundred pounds to B. Of Pupillary Substitution TIT. XVI IN this Substitution we do not so much regard the power of our Countrey as the liberty of tâ—e Testator so that a Legat oâ— may make a Substitution Pupillary either to his own chidren or to strangers Legatees who are under age As I give to A. my own child or anothers a hundred pounds when he shall come to age and if he shall die before then I bequeath the same one hundred pounds to B. But in regard that Cases of Wills are for the most part tried in the Ecclesiasticall Courts and by the Rules of the Civill and Pontificiall Law a Bra. l. 2. c. 26 n 2. therefore our Law hath as it were past by for the most part this and other things of the same nature and leaveth them to be determined by the Civill and Pontificiall Law How Wills are invalidated TIT. XVII WIl ls cannot be justly made ab initio by those who are not permitted to make Wills those who are we have mentioned before they may also be nulled by a later Will a Perk. 476. 479. 480. Fulb. paral Devises fo 47. or invalidated by Treason c. as where one is condemned for Treason or Felony after his Will made b Stan. pl. corp l. 3 c. 20. and c. 32. or if the Testator revoke his Will or be deprived of the Executor whom he named c Bro. Exec. throughout 1. Suppose A. make two Wills one in the sixth the other in the eighth year of Eliz. at length he is sick and speechlesse B. his familiar friend comes unto him giveth him into his hands both the Wills and desires him to return that which he would have stand for his Will A. returns that which was made the sixth yeare in this Case that will which he returned shall be esteemed the later d Perk. 479 2. And it happens sometimes that a mans will which according to the Civill Law is ambulatory or alterable untill Death cannot be altered in regard of prejudicing another Contract upon which account the will was made for Example A. is seised of Lands in Fee which he alienates to B. upon condition that they shall be his for life to the use of the said A. the Remainder e in ip Co. I am arcisc l. omnium 19 C. de Testa f Dier fo 49. n. 12. to C. and his Heires for ever and upon this A. makes his last will after having given the possession to B. This will quatenus to the alienation cannot be nulled by a later and the Reason is because the use of the said Lands do immediately belong to C. to whom the Remainder is transferred so that he may immediately sell them if he please g Id fo 325. n. 73. Perr 480. Of those Wills which were called by the Civilians Testamenta inofficiosa TIT. XVIII THe Plaint or Action in the Case of Testamentum inofficiosum is not in use with us for as concerning Lands holden by Knights Service in case the Father do not leave his lawfull Heir either while he lives or at his death a third part according to the Statute the will is void as to that part a 32 H. 8. c. 1 so that the Heir may notwithstanding take possession thereof or else if he have gotten it he may immediately himself refuse b Brac. l. 2. c 30 n 2 the parcell bequeathed or quit it or remove it by Law c Id ib 1. For the disposing of Chattells there are severall Customes in severall places of which there remain very clear signes in the ancient writers of our Law d Glan l 7 c 5 and 7 Brac l 2 c 26 n 2 but by the Common Law the Testator had alwayes a Free will of disposing e Id ib wherefore that writ which is called Breve derationabili partebonorum which liâ—s for the wife or children against the Executors for the recovery of part of the Goods f Regist fo 142 b F n 122 â— is not generall but peculiar to certain Countreys where the Custome is that Debts being paid the Remainder should be divided into parts viz. one part to the wife the other to the Children and the third to be left at the will of the Testator Of the Quality and difference of Heirs TIT. XIX HEirs as they are taken with us were necessary in time past as to the driving an Inheritance from our ancient Predecessors to the next Ancestor a Glan l 7 c 1 as they are now with us as to part b 32 H 8 c 1 and that not onely as to a Succession in the Estate but also as to the drawing upon themselves the Debt of their Ancestor c Brac l 2 c 16 n 7 and they were also for ever bound and obliged to warranties that is to the assurances which either they or their ancestors ingaged and promised to those to whom they sold any Land 1. But for that it is evident that children naturall and legitimate are preferred before others to Succession it were not amisse to see the Estate and difference of Children which really is very much for of Children some are naturall and legitimate and of this sort some are Sons and Heirs some Sons but not Heirs some also are Heirs of the Father some of the Mother some both of Father and Mother some also are not Heirs although legitimate and naturall some by accident begin to be Heires and some cease to be so so also of naturall and legitimate Issue some are near some more near some are removed some more removed d Brac. l. 2. c. 29 30. Brit. c. 118. Coo. l. 3. Ratc. Case fo 40 41 42. Plow 28. Flet. l. 6. c. 1. but of this elsewhere Of Devises TIT. XX. THat kind of Donation which is in Case of Death is where the Testator had rather that himself should injoy the thing bequeathed then that the party to whom it is bequeathed should have it and yet that he had rather that the party to whom it is bequeathed shall have it then his owne Heire a Brac. l. 2. c. 21. n. 1. 1. Our Common Law
although there be no mention of Heires i Id. ib. which notwithstanding some affirm joyntly k Perk. 557. 33. If a man bequeath Lands to another in these words I give my Lands to A. to give them or sell or dispose of them at his discretion This is a Fee-simple l Terms ib. 34. A Testator bequeatheth Lands to A. and the Heires Males of his Body A. hath Issue only a Daughter and of her a Grand-son In this case the Grand-son shall succeed in the Lands by force of the Devise rather then the Devise shall remain ineffectuall notwithstanding that in other Donations it is otherwise m Id. ib. 35. If I devile Lands to my Son after the death of my Wife although I doe not expresly give it to my Wife yet our Law â—elpes her by a favourable Construction n Id. ib. Pl. 414. Bro. Exec. 175. 13. H. 7. fol. 17. 36. I devise a Fee-simple to A. for a 100. yeares upon this condition if that he shall pay ten pound yearly to B. the remainder of the said Lands to C. and his Heirs In this case although A. shall break his Condition yet the Remainder as to C. is not hurt although the Law be contrary in Contracts made amongst those who are living o Perk. 504. 565 566 567 568 569. 37. A man deviseth all his Lands to A. upon condition that he give a 100. pound And in case the Condition be infringed then to his owne Family In this case our Law determineth this Devise to belong to him who is next of Kinne to the Testator by blood p Fulb. 46. 38. A man deviseth to another all the Grain which he hath in such a Barn And after the Will is made hee puts more Grain into the said Barne In this case the generality of the words is restrained to that which was there at the time when he made his VVil for that the Law presumes the Testator to have meant only of that q Id. fol. 41. Plow 341. 39. A. after many Legacies in his VVill deviseth the Remainder and residue of all his Goods to his VVife E. in these words The residue of all my goods I bequeath unto my deare wife E. whom also I doe ordaine full and sole Executrix of this my last will and Testament to be disposed of by her for the good of my soule and the payment of my debts E. takes upon her the Office of Execution and payes all Debts and Legacies Afterwards she entermarryeth with B. who getting possession of the said Goods having made his VVill and ordained his Executors dyes before E. Here the question is whether the Goods which E. brought to her second Husband shall revert to her Or whether they belong to the Executors of B. And it was determined that they should revert to E. because the residue of the Goods were destined to certain uses and not left to her disposing r Dyer fol. 331. n. 21. 40. A. being possessed to the value of 100. pound and indebted 20. pound divides his Estate by his Will One moity to B. his Wife the other moity to his Executors The question was whether B. shall have 50 pound or 40 pound and it was resolved that the might claim 50. pound But if the Executors had aliened any of the Goods in Specie that then she could not challenge any of those which were alienated because they were alienated s Dyer fol. 164. n. 57. 41. Devises and Legacies are to be sued for in the Ecclesiasticall Court t Glan l. 7. c. 7. Yet some restrain this assertion only to Chattels reall and personall u Perk. 570. for that the Ordinary cannot take Cognisance of Fees or Freehold w Id. 576 577 578 579. devised But a Prohibition will lye if any Judg of any Spiritual Court shall cyte one before him in case of such a Devise as intrencheth upon the Common Law x Dr. Stu. l. 2. c. 55. Of the taking away or translating Devises TIT. XXI WHereas the Civil Law doth ipso facto null the Will for default of an Heir a L. 10. â— de jure codillorum Ours doth not presently suffer Devises to become void for want of an Executor or for default of an Executors undertaking the Office but appoints Administration of the Goods to be committed to another according to the Judgment of the Ordinary who obligeth the Administrator to the payment of Legacies at least as farre as the Estate will reach b Bro. Executors 1. Lands Tenements and other Hereditaments whatsoever devised by a Testator If they shall happen afterwards to be alienated by him and are again redeemed They are equally due to the Legaree as if they had never been alienated c Id. Devise 8. Of that Law which the Romans called Lex Falcidia TIT. XXII THe first duty of an Executor taking upon him the Office is to satisfie the Debts of the Testator and therefore it wil not be amisse to consider what Antiquity hath adjudged in these cases If there be Debts owing to many saith Bracton a L. 2. c. 26. Glan l. 7. c. 5. Flet. l. 2. c. 57. one may be preferred before another The King is first and it shall be lawfull for the Sheriffe or any of the Kings Bailiffs shewing the Kings Letters Patents De summonitionibus scaccarij to take an Inventory of such Goods and Chattels as they shall finde in the Lay-fee of the party deceased and to attach them to the value of the Debt which is coming unto the K. per visum legalium hominum as we call it so that nothing be removed or taken thence untill such a Debt as shall appear due be payed and the residue of the Chattells to be left to the Executors To the acquitting of which Debts or any other the Wife of the party deceased is not to contribute any thing out of her Joynture for that the Wives Joynture ought to be free b F. N. B. fo 151 a. which holds true except where the Husband is indebted to the King before the Title of Joynture In the second place are to be deducted debts due to others such as are clear and acknowledged amongst which are to be reckoned services and Servants wages provided they be certain But if they be incertain although they depend upon courtesy Yet if their stipends shall be set by the Will of the Testator or his Friends they shall be deducted out of the Goods of the deceased so shall Funerall Charges The Wife also shall have her necessaries even her lodging in her Husbands cheife Mansion house for 40. dayes unlesse her Dower be sooner assigned 1. But that the Estate of the Party deceased may the better appear the Executors or Administrators with the privity and by the assistance of two at the least of the Creditors or Legatees Or if they refuse then two of the next of Kinne provided they be unconcerned of the Deceased Or
seised either in his life time or at his death namely upon the day on which he died and if the right discend to more Heires successively and without Seisin yet the Heir hath the same Seisin appertaining to him as the Ancestor had in the time of his life or at his death And where there is a participation or meeting of Propriety with the Seisin the Heir hath immediately Ipso facto a Free-hold b Glan and. Bract. ib. 25. E. 3. Stat. 2. and 42. E. 3. c. 10. Flet. l. 6. c. 1. 3. Our Authors do not make in the case of Heirs a like division some distinguish them into nere and more Remote c Glan l. 7. c. 3 and some into neer and more neer remote and more remote d Bract. l. 20. c. 30. n. 1 Brit. c. 118. Flet. l. 6. c. 1. and 2. 4. If one have many Sonns they are all neer Heirs those that were last born and those that were born before them e Bract. ib. and so are Daughters when Sons faile f Glan ib. The next Heir is he who was born first g Bract. ib. unlesse the custome of the place hinder h Glan ib. or that he be a stranger and the younger Brother a Denizen i Dr. and Stu. l. 1. c. 7. and c. 20. 6. An Heir remote is where one hath many Sons and Daughters the Sons are neer heirs and the Daughters remote this holding alwaies for a Rule that the males shall be preferred before the females of the same degree k Bract. l. 2. c. 30. n. 3. 7. If there be many Sons and no Daughters but Grandsons the Sons shall be neere Heires and the Grandsons remote l Id. ib. if there be many Daughters and no Sons they shall be all next Heirs m Glan ib. 8. So may they be tearmed more remote in respect of the Inheritance being more remote as the lineall Nephew or Neices Son his Grand-son his great Grand-son his great great Grand-son c. In the direct line or if there want of that line then in the transverse Ad infinitum n Bract. l. 2. c. 20. 9. It is the ancient custome of England that the eldest Son should succeed as Heir to his Father but where there is no Son but Daughters then all the Daughters shall be Co-heirs o Dr. and. Stu. ib. Glan ib. Flc. l. 6. c. 1. which is also true in Nephews their Children where males are wanting 10. And this was alwaies a Maxime that a Fee-simple could never ascend from a Son â—o a Father or Mother or any other Ancestor â—n a direct line p Coo. l. 3. fo 40. Ratlifes case Dr. and. Stu. ib. Bract. l. 2. c. 29. Lit. l. 1. c. 1. Brit. c. 119. nor can any one in a â—ransverse line succeed so long as there is an Heir to whom it may discend in the direct q Bract. l. 2. c. 31. n. 1. Flet. l. 6. c. 2. 11. That Issue which is born before marriage is by our Law a Bastard nor can it succeed in an Inheritance nor can a Bastard have any Heir save of his own Body r Dr. and Stu. ib. 20. H. 3. c. 4. Perk. 49. 50. 12. Chattells neither personall nor reall come unto the Heir but by the custome of the Kingdome to the Executors or from an Intestate to the Ordinary and from him to the Administrators whom hee shall appoint s Glan l. 7. c. 16. Perk. 48. or if no body will administer then ought the Ordinary to sequester them upon his own perill t 13. E. 1. c. 19. 31. E. 3. c. 1â— 21. H. 8. c. 5. Flet. l. 2. c. 57. Dier fo 277. n. 57. 13. The Lord of the Mannor is in stead of Heir when either through defect or in case of Felony the blood is extinguished u Flet. l. 6. c. 1. yet at this day this is not without distinction Of the legall Succession on the Fathers side TIT. II. IN the transverse or collaterall line the Rule is that those are Heirs who partake of the whole Blood with the party deceased For example A. hath Issue B. a Son and C. a Daughter by one Venter and D. a Son by a second Venter and dies B. succeeds him and dies without Issue in this case C. the Sister shall succeed and not D. a Lit. l. 1. c. 1. Brit. c. 119. n. 7. Flet. l. 6. c. 1. 1. So also A. having a Brother B. and two Sons viz. C. by one Venter and D. by another dieth to whom C. succeeds and dies without Issue in this case B. the uncle who is of whole-blood shall succeed and not D. the Brother b Lit. ib. Coo. l. 3. Rat. case fo 40. but if B. dy without Issue then D. shall succeed being of intire blood with him both by the Grandfathers side and Grandmothers And therefore if B. had not been Brother to A. both by Fathers side and Mothers side it should have been otherwise 2. The collaterall line is double one descending by the Brother to his Children the other ascending by the uncle but none succeed on the ascending line but for default of Heirs on the descending c Bract. l. 2. c. 30. n. 1. Brit. c. 119. 3. He is Heir in the collaterall discending line who is neerest in degree and if this line fail then he who is next to the party deceased in the ascending collaterall line d Bract. ib. Flc. l. 6. c. 2. 4. If there be two in the same degree and both males the elder is to be preferred but if they be male and female the male is Heir as in the direct and right line e Brit ib. n. 1. 2. and 7. 5. Where an Estate comes by the Mothers side there the Son dying without Issue the next of kinn on the Mothers side is Heir and not the Brother of the Father f Id. ib. but where the Son purchaseth an Estate with his own Mony and dyeth without Issue there the next of kinn on the Fathers side shall succeed and not on the Mothers side unlesse for defect of Heirs on the Fathers side g Lit. l. 1. c. 1. Coo. l. 3. Rat. case fo 39. but the Heir on the mothers side shall succeed rather then the Land shall escheat to the Lord. h Plow 444. 6. A. hath two Sons B. and C. B. in his Fathers life time commits Felony and is punished with Death after which A. dies the question is whether the Fee whereof A. died seised shall escheat to the Lord or discend to C. the second Son And here it is to be considered whether B. dyed without Issue for then it discends to C. otherwise it shall escheat i Dier fo 48. n. 15. but if B. had been condemned living his Father and survived him In this case notwithstanding his dying without Issue the estate should have escheated and not discended to C. k
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-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
c Id. ib. which 〈◊〉 leave to be considered by the studious 17. If there be two Joint-tenants of a Silva câ—dna and either of them the Wood being sold retain the whole money to himself his fellow can have no Action against him d nor could Joint-tenants or Tenants Dr. Stu. l. 1. c. 14. in Common formerly be forced to make Partition e Little ib. unlesse it were by the Custome of the place f F. n. b. 62. C. but this is otherwise at present g 31 H. 8. c. 1 32 H. 8. c. 32. and yet Joint-tenant or Tenant in Common being eiected by their fellow may have an Action of forcible Entry against him 18. Tenants in Common for that they are in by divers Titles if they be eiected by a stranger must bring their Actions severally which in Joint-tenants is otherwise h Little ib. yet Tenant in Common may sue iointly for a thing which cannot be divided i Bro. Tenants in com 2. 5. and. 25. 19. This is the difference between those who hold chattells reall and those who hold chattells personall in common that they being eiected by their fellow may have an Eiectione firme or an Eiectione custodiae terrarum as their case requires but the other cannot but are left to take them themselves when opportunity happens k Little ib. 20. Tenants in common of chattells reall or personall may leave their part to their Executors l F. n. b. 118 H. 21. If two possesse Goods in common and one of them deliver them to a third person he onely may have his Action of account against the detainer and not his fellow m Id. ib. 22. this is equally true amongst partners Ioint-tenants and Tenants in common that they must bear an equall burden for that which they possesse in common for if one or more refuse to contribute the rest may bring their Actions against the refusers n Id. 162 127. 23. Lastly there is another kind of Tenure in Common with us which comes either by reason of agreement o Common in Grosse or of Tenements amongst those of the same Fee p Common appendant or appurtinent or sometimes of divers q Common by reason of vicinage Dier fo 47. n. 12 13. for in many Mannors the Lord hath spacious and large grounds in which every Tenant according to the rate of his Tenement hath a Right of pasture or of digging Turf But in regard these kind of grounds for the conveniency of the Common-wealth cannot admit of Partition Every one who hath such a Right in them may if through covetousnesse they put in too great a number of Cattel be recalled to iust and equall bounds r F. n. b. f. 125 Of Commandements and Attornments TIT. XXVII A Command may with us as with the Civil Law be contracted six manner of wayes viz. by the sole cause of the Commander a F. n. b. 121. or of the Commander and the party commanded or of a third person or of the Commander and a third person or of him that is commanded a third person or lastly of the commander or master the party commanded or servant and a third person Examples might be easily given but mens endeavors are not alwayes accepted and therefore this command is not much in use with us wherefore these are to be implied from the Examples of letting and other Contracts b Glan l. 11. Brit. c. 28. New Book of Ent. Account Attorn Commandment Terms of the law v. Account Dr. Stu. l. 2. c. 24. Flet. l. 2. c 71 72. 1. The Servant cannot have his Action against his Master for commanding him any thing uniust c Brit. c. 28. Flet. l. 6. c. 27. but a third person may if the command bring him any prciudice d Brac. l. 4. tr 1. c. 10. 26 27. for that the Law supposeth the Act of the Servant to be the Act of the Master e Plow 289 290. 2. There is nothing hinders with us but that a command may be deferred untill a lay or be done upon condition and is extinguished either by the death of the Master or Servant f Flet. l. 3. c. 15. 3. The ends of a Command are diligentâ—y to be looked after and observed and â—â—pt g Perk. 118. Fulb. pural c. Contracts fol. 3. Plow fo 14. Of Obligations which arise from implyed Contracts TIT. XXVIII OBligations by our Law arise from implyed Contracts many wayes As for transacting businesse Tutelary dividing of Common But as for the transacting of businesse and the like a Dr. Stu. l. 2. c. 51. Brac. l. 3. tr â— c. 2. n. 10. Flet. l. 2. c 60. that which is done by the command or for the sake of one that is absent if Lawyers have informed mee aright is rather left to the conscience and integrity of him whose businesse it is then to an Action to be satisfied Nay which is more to be admired it oft happens that for doing well a man may incurre the guilt of a Trespasse As if hee drive his Neighbours Cattell out of anothers Corne or carry Tithes exposed to Cattell into the Parsons Barne b Dyer fo 36. n. 38 39. 1. Gardians may lue the debtors of their Pupils And the Guardianship being ended as they are lyable to render accompts so may they claim the Expences which they were at by reason of their Office of their Pupils c F. N. B. fol. 118. B. Terms v. Gardain in socage Flet. l. 3. c. 15. 2. A Donee also who sues a Donee for the partition of a thing given joyntly to both and a Partner who brings a Writ of partition against his fellows may be referred hither d Flet. l. 2. c. 60. 3. Furthermore Executors may sue the Debtors of their Testators and may be sued by the Creditors and Legatees e Id. fo 119. M. 121. O. 145 D. H. which is true also in the Administrators of those who dye intestate f Id. fo 120. D. And in these successions also whole Predecessors owed money or had moneys owing to them in the name of their Abbies g Id. fo 121. K. 122. E. And in the Husband whose Wife was indebted before Marriage or had money owing unto her h Id. 121. C. 4. A Keeper of a Prison who â—ets a Prisoner for Debt at liberty renders himselfe bound to the Creditor for the said money i Id. 121. A. P. 131. B. V. Dyer 175. n. 46 47. fol. 278. n. 5. 5. An Heir is bound also by the Obligation of his Ancestor if hee be named in it and receives sufficient from him to satisfie k F. N. B. 120. l. which however I suppose to be true only where the Moveables will not satisfie debts or where the Executors are not mentioned An Heir also is bound to warrant Lands alienated by his Ancestor with Charter of warranty if hee be named in the
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.
Stu. l. 2. c. 84. Stamf. pleas l. 2. c. 63. But in case of an Appeale hee may make use of others for his defence And if he be so poor that through want he is not able to procure Counsell the Judg ought upon his request to assigne him a Patron to plead for him k Dr. Stu. ib. 5. As for the summe in which any one supposeth himselfe to be prejudiced by reason of a Trespasse committed against him the Justices doe proportion it either by the verdict of a Jury or by vertue of their own Office l Brac. l. 3. tr 1. c. 1. For they doe after that the costs are taxed by a Jury augment them upon cause shown 6. If the Jurors being sworn upon their going together cannot agree upon their verdict so that there be any danger that they may perish through hunger because the Common Law prohibits them from eating and drinking without the Judges leave untill they are agreed together upon their verdict when any such danger appears The Judge may permit them to eate and drink and remit them againe to consult And if at length they can by no means agree he may having amerced them discharge them and appoint others in their stead m Dr. Stu. l 2. c. 52. 7. We have before mentioned and declared that that Action which was called Noxâ—lis Actio is wholly unknown to us n Tit. 8. of this Book Since therefore there is no Judge to appeal to in this case wee need not trouble ourselves with Observation concerning it 8. If in a reall Action Judgement shalâ—… passe for the Tenant the Demandant shalâ—… only be adjudged to pay costs of Suit But iâ—… it passe for the Demandant the Judge shalâ—… condemn him to pay Damages and costs oâ—… Suit and shall command the Sheriffe o Scire facias F. n. b. in the Index throughout and in the Register or in case it touch any Benefice then the Ordinary p F. N. B. 38. to put the Demandant into possession which the Sheriffe is bound to doe without delay And this is true whether the Demandant sue as Heire or otherwise and whether the Tenant were an Intruder or not For if he be a Disseisor or forceable Intruder he is worthy rather of punishment then favour but if he be not then the Jury lay little or no Damages upon him q Brac. l. 3. tr 1. c. 3. 5. 9. An Action is chiefly in case of Moveables but as concerning Moveables wee never sue for them in Specie as I said before but only propose the value And having proved the thing in Action to be Ours and the value so much wee recover either the thing it selfe or the value I doe not finde that the Defendant can be compelled by our Law to restore the thing in Action Yet in the case of Lands or an incorporeall Right the Demandant or Tenant may require the view of the thing if it be out of necessity and not to protract In which case the Judg commands the Sheriffe That at a day assiigned he cause a view to be taken by such Viewers or Surveyers as may certifie the Court at another day touching the quantity 10. That which the Romans called Judicium familiae eriscundae wee term Partition of an Inheritance But whereas they divided as wel Moveables as Immovables among Heirs we only make partition of Immoveables amongst those whom either the Common Law or the Custome of any place intitles to an equall part of an Inheritance r Lit. l. 3. c. 1 2. Now this partition is made either by the consent of the Heirs or by the Authority of the Magistrate That which is by consent may either be so made that the Estate being divided into equall parts the Eldest shall have the first choise and so the rest in their order or else by Lots s Id. ib. Terms of the Law v. Partition The forme of that which is by the authority of the Magistrate we find described at large by Bracton and Littleton t Brac. l. 2. c. 33 34. Lit. ib. In which this is lastly to be observed That whatsoever is assigned to one in one place over and above their due shall be recompenced to the other in another place u Brac. c. 33. n. 8. 11. Those who hold joyntly whether they be Joynt-tenants or Tenants in Common cannot be forced by the common Law to make Partition yet this is changed by an Act of Parliament w 31. H. 8. c. 1 32 H. 8. c. 32. wherefore at this day if Partition be made amongst these the same rules are to be observed which we mentioned in case of Co-heirs x See this title Sect. 9. 12. Where either or any of those whose Fees or Villiages border upon each other desire to make distinctions of their bounds they may have a Writ directed to the Sheriffe that hee shall determine and bound their limits equally By the assistance of a Jury of 12. men the most discreet of the Vicinage sworn for this purpose y F. n. b. fol. 134. which Partition he shall certifie under his own Seal the Seales of foure Knights who were present at the businesse at a certain day assigned And if either be unwilling to have their bounds limited as being the party who happily doth commit the Injury the other may obtain a Writ directed to the Sheriffe to require him to set equall bounds and limits z Terms of the law v. perambulation F. n. b. fol. 128. 13. Now whatsoever shall be adjudged by the Supream power or the Justices upon such certificate to each that shall immediately become theirs to whom it is adjudged a Lit. l. 3. c. 1 Of publique Judgements TIT. XVIII AS for those punishments which are inflicted upon Malefactors some extend to the losse of life some of a Member others of City Burrough or Province some to perpetuall banishment or for a time some to the restraining the body as by perpetual imprisonment or imprisonment for a time some to beating whipping or the Pillory Some also to the losse of Dignity and Order or to a privation or prohibition of any thing a Brac. l. 3. tr 1. c. 6. Flet. l. 1. c. 16. 1. Amongst these that is reckoned cheif in regard of its Heinousnesse b Coo. l. 4. Beverleys case 124. which wee call Treason Now Treason c Flet. l. 1. c. 21. is either High or Petite High Treason is that which the Romans called Laesa majestas and this before the alteration of our Government was dierse wayes committed as by killing or imagining the Death of the King the Queen or their Sonne and Heir apparant By ravishing d Spec. Just l. 1. c. del peche de majeste the Wife or eldest Daughter of the King if she were unmarried or the wife of the Kings Sonne and Heir apparant By taking up Armes against the King within his Kingdome e Dyer