the wife the iij. part Where it is said here that y â— dead shal haue one part it is ment for performance of his legacies by hys executours if hée make a testament or by the dyscretyon of the ordinary if hée die intestate 16 And if there be no law ful issue on liue let y â— dead haue the one halfe and y â— wife on liue y â— other half The selfe same order y â— the custoÌ„e here speaketh of in y â— xv xvj diuisioÌ„ is at this day obserued in y â— City of London and the same in effect was longe since vsed throughout the whole Realme For it is euydent both by the lawe of kinge Canutus by master Glanuile by y â— words of Magna carta ca. 18. by master Fitz. in his Natura breuiuÌ„ in the writ d' Rationabili parte bonor ' f. 122. L. y â— y â— wife children had their resonable partes of the goods by the coÌ„mon lawe of y e realme that y â— common lawe was soe it appereth also in 30. E. 3. 25. et 21. 30. H. 6. And it was said for lawe M. 31. H. 8. abridged by master Bro. ti â–ª Rationabili parte bonarum pl ' 6. that it hath bene often put in vre as a comon lawe and neuer de murred vpoÌ„ and therfore it seemeth that it is common lawe howsoeeuer it came to passe at length y â— it was admitted for lawe but in such countries only where it was continued by daylie vsage that al y e writs in the Register de Rationabili ê‘te bonoruÌ„ haue meÌ„cion of the special custoÌ„e of the shire in which the part is demaunded and soe is the Booke 28. Henrici 6. 4. But as at thys daye partycion of Chattelles is not vsed throughout the whole Realme though in the meane time it hath not lost the force of common lawe as many thinke as may bée gathered by the opinion aforesayde holden for lawe an 31. H. 8. So is it as some think vanished quit out of all vre within thys Countrey of Rent also 17 And if the heire or heires shal be vnder the age of 15. yeares let the nouriture of theÌ„ be committed by y â— lord to the next of the bloud to whoÌ„ the enheritaunce cannot discend so y â— y e Lord take nothing for the committing thereof 18 And let not y e heire bée maried by the Lord but by hys owne wyl and by the aduise of his friends if he will 19 And wheÌ„ such heire or heires shal come to y t ful age of 15. yeares let their landes and tenements be deliuered vnto theÌ„ together with their goodes and profites of the same landes remaininge aboue their reasonable sustenance of the which profits and goods let him be bouÌ„d to make aunswere whych had y â— education of the heire or els the lord or his heires which coÌ„mitted y â— same education The lord ought to take good héede that he credit not the custody to any person that shall not bée able to aunswere therefore For if y e heire at his ful age of 15. yeres shal come to y â— Lordes court and demaund his enheritance although y â— Lord may distreine the gardeÌ„ to yeld his accompt as it appereth 18. E. 2. Auowry 220 yet in default of his abilitie the Lord him selfe and his heires remaine charged to the heire for the same But I do not heare that the Lords take vpon theÌ„ at this day to coÌ„mit the custody of these infants but y t they leaue it altogether to the order of y e next of kyn peradueÌ„ture to auoyde the daunger in which they are if they intermedle as is a foresaid 20 And this is to be vnderstood y t froÌ„ such time as thâ—se heires in Gauelkind be of or haue passed y â— age of 15. yeres it is lawful for them their landes or tenementes to giue and sell at their pleasure Sauing y e seruices to y e chiefe lords as is beforesayd Although that this custome enable the heire to make away his landes and tenementes very soone namely at the fiftenth yere of his age by meanes wherof it might be thought vnreasonable in giuing such scope and liberty to so yong yeres yet vppon the good consideration thereof it may appere that the custome it selfe doth reasonably carefully prouide in the behalfe of the heire for somuch as it licenceth hiÌ„ at y t yeres not to giue his laÌ„ds for y t he might do for nothiÌ„g but to giue and sel his laÌ„ds which it meaneth he should not do w tout sufficieÌ„t recoÌ„pence Such like interpretatioÌ„ the coÌ„mon law also seemeth to make of this custome both by the opinioÌ„ of Vauasor Keble 5. H. 7. 31. et 41. what said y t it was 〈◊〉 y â— a releas made by wâ—â—h an enfant was voyd By y â— seÌ„tence of y e bâ—oke 21. E. 4. 24. where it is sayd y t an infant can not declare his wil vpoÌ„ such a feoffement And by the iudgment of Hank 11. H. 4. 33. who also held that a warranty or graunt of a reuersion made at such age was to no purpose at all although a lease w t release might hapely bée good by the custome because that amouÌ„teth to a feoffement And it is not fit that this custome should bee construed by equity for as much as it standeth not with any equity to enable an infant of litle discretion lesse experience to sel his land and not to prouide withal y â— he should haue Quid pro quo and some reasonable recompence for the same for y â— were not to defend the pupill fatherlesse but to lay him wide open to euery slye deceipt circumueÌ„tion In which respect their opinioÌ„ is very well to be liked of who hold y â— if an infaÌ„t in Gauelkind at this day wil sell at xv yeres of age these thrée things ought of necessity to coÌ„cure if he wil haue y â— sale good effectual The first y â— he be an heire and not a purchaser of y â— land y â— he departeth w tal The secoÌ„d y â— he haue recoÌ„peÌ„ce for it y â— third y â— he do it with liuery of seysin by his owne hand not by warrant of atturney nor by any other maner of assurance And these meÌ„ for proofe of the first and second point of their assertion do build vpon y â— words of this custome where it is said froÌ„ such time as those heires in Gauelkind be of or haue passed the age of fifteene yeares it is lawfull for theÌ„ their landes or tenements to gyue and sell in which y â— words those heires doe restreine the infant that coÌ„meth in by purchase And giue sel in the copulatiue doe of necessity imply a recompence forsomuch as selling cannot be w tout soÌ„e price or thing giueÌ„ for it And for mayntenaunce of the third matter they haue of their part besides the comon
curtesy of Englande is there where a man taketh a wife inheritrix and they haue issu a soÌ„ne or daughter and the wife dieth whether y e issue be deade or a liue y e husbande shal hold this laÌ„d for terme of his life by the curtesie of England and by y e law And in this case the fée and the right remaineth in the person of hym of whome he holdeth And for that this tenant may not alien in fée nor for terme of anothers lyfe and if he doe it is lawful to him in the reuersion to enter Fee simple ¶ To holde in fee simple is to holde to any man or woman to him and to his heires and to his assignes for euermore Franke tenure ¶ To hold in frée hold is to holde for terme of his own life or for term of an other mannes life And in this case the fée the right remaineth in y â— person of him of whom he holdeth And for that this tenaÌ„t may not alieÌ„ iÌ„ fée nor for term of life And if he doe it is well lawful to him in whom the fée and the right abydeth to enter Dower ¶ To hold in dower is where a man inherit taketh a wife and dieth y e heire shal enter and endowe the wife of y e third part of al that that was to her husbande in hys life in fée simple or fée taile and shée shall holde these landes for terme of her life as her frée holde Terme dans ¶ To holde for terme of yeres is not but chattel iÌ„ effect for no action is mayntenable against y â— termour for the recouering of the fréehold for no fréehold is in hym A lease for terme of yeres is a chattel real and the other chattel personall al goodes which are remouable are chattelles personals Mortgage ¶ To holde in morgage is to hold for a certayne terme vpon condition y â— if the lessour pay so much money at such a day that he may enter and if not that the other shall haue a fée simple or fée tayle or frée holde And in euery case where landes or tenements be géeuen to a manfor a certaine terme vpon condition of the part of the lessor for to make y â— lessee to haue more loÌ„g time or terme if the other do not as the condition is the landes and tenementes vntyll the day that the condytion should bee done bée holden in morgage as in a deade gage ¶ And note well that if land be let to a man in morgage in fée simple or in fée tayle vpon condition that if the first lessour as is before sayd pay so much money at such a day that hée may enter if not that the lessée haue the saÌ„e estate in the lands that the lessour did him graunt at y â— â—eginnynge And if before the day assygned the lessée be disseysed he shal haue assise of nouel disseisin And in case that if the lessée take a wife die lessed before the day assigned the womaÌ„ shall bée endowed And note wel that if y e lessour after the death of the lessée pay not the mony at y â— day assigned then y â— woman shal hold her dower and the issue her heritage And in case the lessour at y e day assigned pay the money to the heire of the lessée then he may put out the woman and the heire also of all the lande first let And if a man géeue landes to an other in the tail yelding to him a certaine rent by the yeare one entre for defaut of paimeÌ„t y â— donée taketh a wife and dieth seysed the woman shal bee indowed And in case that after the rent be behind the donour may enter put out the woman and the heire also And note well that if landes bée let to a man in morgage in fée vppon condition the lessée doth alien the lessour shalbée charged to pay the money to the alienée not to the seffée as it is said Burgage ¶ To holde in burgage is to holde as if the burgeis holde of the king or of another Lord lands or tenementes yeldinge to him a certain rent by y â— yere or els there where another man then burgeis holdeth of any Lord landes or tenementes in burgage yeldinge to him a certayne rent by yeare Socage ¶ To hold in socage is to hold of any lord lands or tenements yelding to him a certaine rent by y e yeare for all maner seruices And note wel that to hold by socage is not to hold by knightes seruice nor there longeth ward mariage nor reliefe But they shal double once their rent after the death of their auncestours according to that y t they be wont to pay to their Lorde And they shall not bée ouer measure greued as it appereth in the treatyse of wards and reliefes And note well y t socage may bée sayde in thrée manners that is to say Socage in free tenure Socage in auncient tenure Socage in base tenure Socage in frée tenure is to holde fréely by certaine rent for all maner of seruices as is before sayd and of that the next kms body shall haue the ward to whom the heritage may not discend til the age of xiiii yeares that is to say if the heritage come by the part of the father they of the parte of y e mother shal haue the ward coÌ„trary wise ¶ And note wel that if the gardeine in socage do make wast he shall not bée peched of wast but hée shall yelde accompt to the heire when hée shall come to his full age of xxi yeares and looke the Statute of Marlebridge cap. xvij for thys matter Socage in auncieÌ„t tenure is that where the people in auncieÌ„t demesne helde whych vse no other wrytte to haue then the writte of ryght close which shal be determined according to the custome of the mannour and the Monstrauerunt for to discharge theÌ„ wheÌ„ their Lorde distrayneth them for to do other seruice that they ought not to do And thys writ of Monstrauerunt ought to be brought against the lord those tenants hold al by one certain seruice these bée frée tenantes of auncient demesne Socage in base tenure is where a man holdeth in auncient demesne that may not haue the monstrauerunt and for that it is called y â— base tenure ¶ To holde in fée ferme is to holde in fee simple yeldinge to the lorde the value or at the least the fourth part by yere and hée oughte to doe noe other thinge but as it is coÌ„teined in the feffemeÌ„t and hee that holdeth in fée ferme ought to doe fealty and not reliefe Franke fee. ¶ To holde in franke fée is to holde in fée simple landes pledable at the coÌ„mon lawe Base fee. ¶ To holde in fée base is to holde at the wil of the Lorde Villenage ¶ To holde in pure vyllenage is to doe al that y e Lorde wyll him commaunde ¶ The
these accions there bee an infintts number but one for example is when anie of the Jurye that are impanelled and sworne to passe betwéene party and partye indifferentlye do take any thing of the one side or other or of both parties to say their verdicts at that side Then any man that will within the yeare nexte followynge the offence made maye sue a writte called Decies tantum agaynst hym or them that so did take to geeue their verdicte and because that this accyon is not géeuen one man speciallye but generally to the Queenes people that wyll sue it is called an accyon populer Actions Reals ACtions Reals bée such actyons whereby the demaundaunt claymethe tytle to any landes ortenementes rentes or coÌ„mon in fée simple fée taile or for terme of life Accorde ACcordeis an agréement betwéene ij at the least eyther to satysfie an offence that the one hath made to the other Or else it is a contracte wyth dyuers articles to bée done some on the one part and some on the other where there shalbée one thinge for an other c. The first is when a man hath done a trespas or such like vnto an other for which hee hath agréed with him satysfyed and contented him with some recompence alredie executed and done in déede And béecause that this recoÌ„pence is a full satisfactyon for the offence it shalbée a good barre in y e lawe if the other shoulde sue agayne any actyon for the same trespas The other is when as I. S. letteth a chamber for yeares to H. G. and it is farder agréed béetwéene them that the sayde H. G. shalbée at Boorde with the sayde I. S. and shal for the same chamber and Boorde paie to the sayde I. S. a certen some c. this is a contract and accorde with articles on both sides ¶ Acquital ACquital is where there is lord mesne tenant the tenant holdeth of the mesne certein lands or tenemeÌ„ts in fraÌ„kalmoigne frankemariage or such lyke and the mesne holdeth ouer also of the Lord paramount or aboue him Nowe ought the mesne to acquite or discharge y â— tenant of al and euery maner of seruice y â— any other would haue or demaund of hym concerninge the same lands or tenementes for that the tenant must doe his seruice to the mesne onely not to diuers lords for oÌ„e tenement or parcell of lande The saÌ„e lawe is wherthere is lord mesne tenant as aforesayd and the mesne graunted to the tenaÌ„t vpon the tenure made betwene theÌ„ to acquite and dyscharge him of al rentes seruyces and such like This dyscharge is called acquitall Acquitance ACquitaunce is a discharge in writinge of a summe of money or other duetie which ought to be payde or don As if one be bound to pay money vpon an obligation or rent reserued vppon a lease or such like and the party to whom the money or duety should bée payed or don vppon the resceit thereof or vpon other agreement betwene them had maketh a writing or bill of his hand in discharge thereof witnessing that he is payed or otherwise conteÌ„ted and therefore doth acquite discharge him of y e same which acquitance is such a discharge and barre in the lawe that hée cannot demauÌ„d recouer that suÌ„me or duety againe coÌ„trary thereunto if he can shew the acquitance Additions ADdition is that that is geuen vnto a man but chiefely to the defendant in accions where proces of outlawrie doe lie as in det and such like ouer and besides his proper name and sirname that is to say to show of what estate or degree or mistery hee is and of what Towne or Hamlet or Countie Additions of Estate ar these yeoman Gentleman Esquire such like Additions of degree are those that wee call names of dignitie as Knight Earle Marques and Duke Additions of mistery are such Scriuener Printer Mason Carpenter Tayler Smith so al other of like nature for mistery is the craft or occupatioÌ„ wherby a man getteth hys liuinge Addicions of townes as Sale Dale and such and so of the rest And where a maÌ„ hath houshold in ii places hee shal be said dwelliÌ„g iÌ„ both of them so y t his addicion in one of theÌ„ doth suffise And this was ordayned by a statute made in the first yeare of H. 5. cap. 5. to the intent that one man should not bée gréeued nor troubled by the vtlary of an other but that by reason of the certein addicion euery man might bée certeinly knowne and beare his owne burden Adiournement ADiournement is wheÌ„ any court is dissolued and determined and assigned to be kept againe at an other place or time Administratour ADministratour is he to whoÌ„ the ordinary coÌ„mitteth thadministration of y â— goods of a dead man for defaut of an executour an accioÌ„ shal lie against him and for him as for an executour he shal be charged to the value of the goods of y â— dead man no further if it bée not by his own false plée or for that that hee hath wasted the goodes of the dead but if thadministratour die his executours be not Administrators but it behoueth the Ordinary to commit a newe administration but if a strauÌ„ger that is not administratour nor executoure take the goodes of the dead and minister of his owne wrong hée shal be charged â—ued as an executour not as administratour in any accioÌ„ that is brought against hym by any creditour But if y t ordinary make a letter ad colligeÌ„duÌ„ bona defuÌ„cti he that hath such a letter is not Administratour but the accion lieth against the Ordinary as wel as if he toke y t goods to his owne hande or by the hande of any of hys seruauntes by any other commaundement Actes ACtes of parliament are positiue lawes which consyst of two partes that is to say of y â— words of y â— act and of the sense thereof they both ioined together make the lawe Admiral ADmirall is an officer vnder the Quéene that hath aucthoritie vpon the sea onely to sée the nauie repaired mainteined to suppresse and chasé away robbers and rouers and to deale in matters betwene party and party concerninge thinges done there and for that purpose hath hys court called the Admirally yet he may cause his Citation to be serued vpon the land and take the parties body or goodes in execution vpon the land Also he hath cognisaÌ„ce of the death or mayhem of a maÌ„ coÌ„mitted i any great ship fléetinge in great riuers in the land benethe the bridges of the same next the sea also to arrest ships in y â— great streames for y â— viages of y â— Quéene Realme hath iurisdiccioÌ„ in y â— said streames during the same viages Aduowson ADuowson is where a man and his heires haue right to preseÌ„t their Clerke to the ordinarie to a personage or other spiritual benefice when it becoÌ„meth boide And hée that hath such
other in the night with felonious intent to robbe or kil or to doe some other felony in which cases although he cary away nothing yet it is felony for which he shall suffer death Otherwise it is if it be in the day tyme or that hée breake the house in the night and enter not therin at that tyme. But if a seruant will conspire with other men to robbe his master and to that intent hee openeth his masters dores or windowes in the night for them and they come into the house by that way this is burglary in the straungers and the seruant is a théefe but noe burglar And this was the opinion of the right worshipfull Sir Roger Manwood knight most woorthy Lorde Chiefe Baron of the Eschequer at the quarter Sessions holden in CauÌ„terburie in Januarie last 1579. 21. Elizabeth Caruage CAruage that is to bée quite if the kinge shall taxe al hislaÌ„d by Carues Note that a Carue of land is a plowland Cession CEssion is when an Ecclesiasticall person is created bishop or wheÌ„ a person of a personage taketh an other benefice without dispensation or otherwise not qualified c. In both cases their first benefices are becoÌ„e void and to those that he had who was created Bishop the Quéene shal present for that tyme whosoeuer be patron of them And in the other case the patron may present Challenge CHallenge is where Jurours appeare to trie an issue then if any of the parties suppose y â— they are not indifferent they may there Challenge and refuse them There be diuers challenges one is challenge to the array the other to the polles Challenge to tharray is wheÌ„ the panel is fauourably made by the sherife or other officer Challenge by the poles are some principal and some by cause as they call it Principal is wheÌ„ one of the Juroures is the son brother or cosine to the plaintife or defendaunt or tenant to him or y â— he hath espoused the daughter of the pleintife for those causes hée shalbée withdrawen Also in a plée of y â— death of a maÌ„ in euery other accion reall in accions personall if the debt or daÌ„mages amount to xl markes it is a good challenge that he cannot dispende xl s. by the yeare of free holde Challenge by cause is where the party doth alledge a matter which is no principal chelleÌ„ge as y â— y â— son of one of y â— Jurrours hath espoused the daughter of the pleintif then he doth coÌ„clude therfore he is so fauorable which shal be tried by others of theÌ„quest whether he be fauorable or indifferent if they say that he is fauorable and not indifferent theÌ„ hée shalbée drawen out otherwyse hée shalbée sworn Also a felon that is arraigned may challenge xx Jurrours paremptory wythout any cause that is in fauour of life as many as hee wil with cause but then it shal be tried if for such cause he be indifferent or not Champertours CHampertours be they y t moue pleas suites or cause to be moued by own or others procurement sue them at their owne costs to haue part of the land or gaines in variance Charge CHarge is where a man grauÌ„teth a rent out of his grounde and that if the rent bée béehinde that it shal be lawfull for him his heires assignes to distraine till the rent be paide This is called a rent charge But if one graunt a reÌ„t charge out of the land of an other and after purchase the land the grauÌ„t is voide Charters of lands CHarters of lands are writings déeds euideÌ„ces instrumeÌ„ts made froÌ„ one man to an other vpoÌ„ some estate coÌ„ueied or passed betwene theÌ„ of lands or tenemeÌ„ts shewing the name place quantitie of the land the estate time maner of the doinge thereof the parties to the estate deliuered and takeÌ„ the witnesses pres eÌ„t at the same with other circumstaunces Chattels CHattels are in ij sortÊ’ that isto say Chattels Reals and Chattels personals Chattels Reals are leases for yeares wardes and to holde at wil c. Chattels personals ar al mouable goods as money plate householde stuffe horses kine corne such like Childewite CHildwite that is y â— you may take a fine of your bondwoman defiled and begotten w t childe w tout your licence Chimin CHimine is the hye way where euery maÌ„ goethe which is called via Regia and yet the Kynge hath noe other thinge there but the passage for hym and hys people for the frée holde is in the Lorde of the soyle and all the profyte growinge there as trees and other thinges Thing in action THinge in action is when a manne hath cause or may brynge an action for some duity due to him as an action of det vpon an obligation aÌ„nuity Rent Couenant warde goods trespas or such like And because they are thinges wherof a man is not possessed but for recouery of them is driuen to his actioÌ„ they are called things in action those thinges in action that are certen the Quéene may grauÌ„t the grauÌ„tee may vse an actyon for them in hys owne name onely But a common person cannot graunt his thing in actioÌ„ nor the Queene her felâ—e cannot grauÌ„t her thing in actioÌ„ which is vncerten as trespas such like Circuit of action CIrcuite of action is when an actyon is rightly brought for a duetie but yet about y e bush as it were for y â— it might as well bene otherwise aunswered and determined that suit saued and because that theÌ„ same actioÌ„ was more then néedful it is called circuite of action As if a manne graunt a rent charge of x. li. out of his manner of dale and after the grauntee disseise y â— grauÌ„tour of the same maner of dale and hée bringeth an assise and recouereth the lande and xx li. dammages which xx li. being paied the grauntee of the rent sueth his action for x. li. of his rent due duringe the time of the disseison which if noe disseisin had bene hée must haue had This is called circuit of action béecause it might haue bene more shortly aunswered for where as the grauntour should receyue xx li. dammages and pay x. li. rent he might haue receiued but the x. li. onely for the dammages and the grauntee might haue cut of and kept backe the other x. li. in his handes by way of detayner for his rent and soe thereby mought haue saued his action Claime CLaime is a challenge by any man of the propertie or ownershippe of a thinge which he hath not in possession but which is with holden froÌ„ him wrongfully Clergie CLergie is an auncyent libertye of the popishe Church which hath also béene confyrmed with vs in dyuers Parlyamentes And it is when a priest or one within holy orders as they terme it or any other whoesoeuer in whome is noe impedyment or impossibilitye to bée a priest is arraigned of felonye or such lyke
I. S. by his wil all hys lands and tenementes here not onely all those landes y â— he hath in poss doe passe but also those that he hath the reuersion of by vertue of these wordes tenements â–ª 〈…〉 â—e deuiâ—ed to a man to haue to him for euermore or to haue to hiÌ„ his assignes in these ii cases y e deuisée shal haue a fée sâ—ple But if it be geuen by feoffement in such maner hée hath but an estate for terme of life Also if a man deuyse his land to an other to giue sel or doe therwith at his pleasure or wyll this is fée simple A deuise made to one to his heires males doth make an estate taile but if such words be put in a déede of feoffement it shalbée taken in fée simple because it doth it doth not appere of what bodye the heires males shal be begotten If lands be gyuen by déede to I. S. and to the heires males of his body c. whoe hath issue a daughter whoe hath issue a sonne and dieth there the land shall returne to the donour and the sonne of the daughter shall not haue it because hée cannot conuey himself by heires males for his mother is a let thereto But otherwise it is of such a deuise for there y e son of y e daughter shall haue it rather theÌ„ y â— wil shal be voyd If one deuise to an infant in his mothers belly it is a good deuise otherwyse it is by feoffement graunt or gift for in those cases there ought to be one of hability to take presently or otherwise it is voide A deuise made in fee simple without expresse wordes of heires is good in fee simple But if a deuise be to I. N. hée shall haue the land but for terme of life for those words wil cary noe gerater estate If one wil y â— his sonne I. shal haue his land after the death of his wife here the wife of the deuisour shal haue the lande first for terme of her life Soe likewise if a man deuise his goodes to his wife and that after the decease of his wife his sonne and heire shal haue the house where y â— goods are there the sonne shal not haue the house during the life of the wife for it doth appere y â— his inteÌ„t was that his wife should haue the house also for terme of her lyfe notwithstandiÌ„g it were not deuised to her by expresse words If a deuise be to I. N. and to y â— heires females of his body begotten after the deuisée hath issue a sonne and a daughter and dieth here y e daughter shal haue the land not the sonne yet he is the most worthy persoÌ„ and heire to his father but because the wyll of the dead is that the daughter should haue itlawe and conscience wil so also And herein the very hethens were precyse as appereth by these verses of Octauius Augustus whych Donatus reporteth he made after that Uirgil at hys death gaue commaundement that hys bookes shoulde bée burnt béecause they were vnperfite and yet some perswaded that they shoulde bée saued as in deede they very happely were to whom hée auÌ„swered thus But faith of lawes must nedes be kept and what last wil doth say what it doth coÌ„mauÌ„d be done y â— néedes we must obey Discent DIscent is in ij sorts eyther linial or collateral Linial discent is wheÌ„ the discent is conueied in y â— same line of the whole bloode as Grandfather father sonne sonns soÌ„ne so downwarde Collateral discent is out in an other braunch from aboue of y â— who le bloode as the graund fathers bro. fathers brother soe downewarde Disclaimer DIsclaimer is where the Lorde dystraineth his tenaunt and hée sueth a repleuin the lord auoweth the takinge by reason that he holdeth of him if the tenaunt say that hée dysclaimeth to holde of him this is called a dysclaimer and if y â— lorde thereuppon bringe a writ of right sur dysclaimer it be founde against the tenant he shal lose the land Tithes TIthes are in thrée sortes deuyded to wit Preiudicial tithes Parsonal tythes and Mixt tithes Predial tithes are tithes that bée payed of thinges that come of the grouÌ„d onely as Corne Haye fruits of Trées such like Parsonal tythes are tithes that bee payed of such profits as come by the labour and industrie of a mans person as by buyinge sellinge gaines of marchandise and of handicraftes men laborers and such as woorke for hyer as Carpenters Masons and such like Myxt tythes are the tithes of Calues Lambs Pigges and such lyke that encrease partlye of the grounde that they be fedde vppon and partlie Disseisin vppon disseisin DIsseisin vppon disseysin is when the disseisor is disseised by an other Disseisor and disseisee DIsseysoure â–ª is hée which putteth anye manne out of his lande without order of y â— lawe disseisee is hée that is so put out Distresse DIstresse is the thinge which is taken dystrayned vpon any lande for rent beehinde or other duty or for hurt don although that the propertie of the thinge béelongeth to a straunger but if they be beasts that belong to a stranger it behoueth that they bée leuant and couchant vppon the same ground y â— is to say that the beasts haue ben vpon y â— ground by certaine space y â— they haue themselfe well rested there or els they bée not distrainable And if one distraine for rent or other thynge without cause lawfull then the party gréeued shall haue a repleuin vppon suertie found to pursue his accion and shal haue y â— distresse to hym deliuered againe But there bée diuers thinges which bée not distrainable y â— is to say an other mans gowne in the house of a tayler or cloth in the house of a fuller sheremaÌ„ or weyuer for that that they be commen artificers and that the coÌ„mon presuÌ„ption is that such thinges belong not to the artificer but to other persons which put them there to be wrought Also vitaile is not distrainable nor corne in sheues but if they be in a carte for that that a distresse ought to bée alway of such thynges wherof the sherife may make Repleuin and deliuer againe in as good case as it was at the time of the taking A manne may dystrayne for homage fealtie and escuage other seruyces for fynes and amercements which bée assessed in a léete but not in a court baron and also for dammage fesaunt that is to say when hée findeth the beastes or goods of an other doing hurt or cumbringe hys grouÌ„d But a man may not distraine for any reÌ„t or thing due for any laÌ„d but vpon the same lande y t is charged therewith but in case where I coÌ„e to distraine the other séeing my purpose chaseth the beastes or bereth the thing out to the intent y â— I shal not take it for a distresse vpon the ground theÌ„ I
may well pursue and if I take it presently in the hye way or in an others grouÌ„d y â— taking is lawful aswell there as vppon the land charged to whomsoeuer y â— propertie of the goodes bee Also for fines and amercemeÌ„ts which be assessed in a leete one may alway take the goodes of him that is so amerced in whose ground so euer they bée within the iurisdictyon of the court as it is sayd And when one hath takeÌ„ a distresse it beehâ—â—ueth hym to bringe it to the commen pound or els hée may kéepe it in an others ground so that hée géeue notice to the party that hée if the distresse be a quicke beast may géeue to it foode and then if the beast dye for defaut of foode hee that was dystrayned shall bee at the losse and then the other may distrayne agayne for the same rent or duitie But if hee brynge the dystresse to a holde or out of the couÌ„ty that the sherife may not make deliueraunce vppon the repleuin then the party vppon the retorne of the sherife shall haue a writ of Withernam directed to the sherife that he take as many of hys beastes or as much goodes of the other in his kéepinge tyll that he hath made deliueraÌ„ce of the first distres Also if they bee in a forfelet or Castell the Sherife may take with him the power of the County beate downe the Castel as it appeareth by y â— statute Westm 1. cap. xvii Therefore looke the statute Diuorce DIuorce so called of diuortium coÌ„minge of the verbe diuorto which signifieth to returne backe As when a maÌ„ is diuorced froÌ„ his wife hée returneth her backe home to her father or other frends or to the place from wheÌ„â—e he had her by such diuorce the mariage is defeated and vndone Donor donee DOnor is hee whych gyueth lands or tenements to an other in tayle and hée to whom the same is so gyuen is called donée Double plea. DOuble plee is where the defendaunt or tenant in any accion pleadeth a plée in the which ii matters be compreheÌ„ded and euery one by himselfe is a sufficyent barre or aunswere to the action then such a doublee plee shall not bée admitted for a plée except one depend vpon an other and in such case if he may not haue the last plée without the first plée then such a double plee shal be wel suffered Ryght RIght is where one hath a thing that was taken from an other wrongfully as by disseisin or putting out or such like And the challenge or claime that hée hath who should haue y e thing is called right Right of entrie RIght of entrie is when one seysed of land in fee is therof disseised Now the disseisée hath right to enter into y â— land may so do wheÌ„ he wyll or els hée may haue a writ of ryght against the disseisour Dures DUres is where one is kept in prison or restrained froÌ„ his liberty contrary to the order of the lawe and if such a person so beinge in dures make any especialtie or obligation by reason of such imprisonment such a déede is voyde in the lawe and in an actyon brought vppon such an especialtie hee may say that it was made by dures of imprysonment but if a man bee arrested vppon any accion at the suite of an other though the cause of the accion be not good nor trewe if hée make any obligation to a straunger béeinge in prison by such arrest yet it shall not bee sayed by dures but if hée make an obligation to hym at whose suit he was arrested to bée dyscharged of such imprisonment then it shal be said dures Eire Iustices EIre Justices or Itinerant as we call them were Justices that vsed to ryde from place to place through out the realme to administer Justice Embrasour or Embraceour EMbrasour or Embraceour is he that when a matter is in trial béetwéene party and party commeth to the Barre with one of the partyes hauinge receyued some rewarde soe to doe and speaketh in the case or priuely laboreth the Jurie or standeth there to furuey or ouerlooke theÌ„ thereby to put them in feare doubt of y â— matter But men that are learned in the laws may speake in the case for their fée but they may not labour the Jurye and if they take money soe to doe they alsoe are embrasors Encrochment ENcrochment is sayed when the Lorde hath gotten seisine of more rent or seruices of hys tonaunt then of right is due or ought to bée payed or done vnto him As if the tenaunt holde slande of hys Lorde by fealtye and ij s. rent yerelye And nowe of late tyme the Lord hath gotten seysine of thrée shillings rent or of homage or Escuage or such lyke Then thys is called an Encrochment of that rent or seruice Enheritance ENheritaunce is such estate in landes or tenements or other thinges as may be inherited by the heire whether it be of estate in fée simple or taile by discent from any of hys â–ª Auncesters or by hys owne purchase And Enheritaunce is deuided into two sortes that is to say enheritaÌ„ce corporate enheritance incorporate Enheritance corporate are mesuages landes meadowes pastures rentes and such lyke that haue substaunce in them selues and may haue contynuaunce alwayes And these ar called corporal things Enheritaunce incorporate are aduowsens villaynes wayes comons Courts fishings and such like that are or may be appendant or appurtenant to inheritances corporate Equitie EQuitie is in two sorts differing much the one from the other and are of contrarye effectes for the one doth abridge diminishe and take from y e letter of y â— law The other doth inlarge amplifie and adde therunto The first is thus defined Equitie is the correction of a lawe generally made in that part wherein it faileth which correction of y e generall wordes is much vsed in our lawe As if for example when an act of parliament is made that whoesoeuer doth such a thinge shal be a sclon and shal suffer death yet if a madde manne or an infaunt of yonge yeres that hath noe discretion doe the same they shal be no feloÌ„s nor suffer death therefore Also if a statute were made that al personnes that shal receiue or gene meate and drinke or other succour to any that shal do such a thing shal bée accessorie to hys offence and shal suffer death if they did knowe of the fact yet not withstandinge one doth such an act and commeth to his wife whoe knowing thereof doth receiue him and giues him meat and drinke shée shall not bée accessory nor felon for in the generaltie of the said wordes of y e lawe he that is mad nor y e infant nor the wife were included in meaning And thus equity doth correct y â— generality of y â— law in those cases the general words are by equitye abrydged The other equitie is defined after this sorte Equitye is when the wordes of
vntyll at the last and that chiefely in the time of Kinge Henry the first by agréement the reseruation of victuals was turned into redy mony so hitherto hath coÌ„tinued amonge most men Fee farme FEe farme is when a tenaunt holdeth of his lorde in fee simple payinge to him the value of halfe or of the third or of the fowerth part or of other part of the lande by the yere And he that holdeth by fée ferme ought to doe noe other thinge then is conteyned in the feoffement but onely fealtie for that belongeth to al kinde of tenures Feoffement FEoffement is where a maÌ„ geueth lands to an other in fee simple and deliuereth seiuÌ„n and possession orthe land that is a feffement Feoffor et feffee FEoffor is hée that infeffeth or maketh a feoffement to an other of landes or tenements in fée simple And feoffee is he who is infeffed or to whoÌ„ y â— feffement is so made Fireboote FIreboote is necessarye woode to burne which by the common lawe lessâ—e for yeares or for lyfe may take in hys grounde although it be not expressed in his leaseâ— and although it be a leas by woorde onely without writinge But yâ— sake more then is néedefull he shalbée punished in wast Fledwite FLedwite that is to be quite from amercements when an outlawed fugitiue coÌ„meth to the kinges peace of hys owne will or beinge licenced Flemeswite FLemeswit that is y â— you may haue the cattel or amercementes of your man or fugitiue Fletwie Fletwit or Flitwit that is to bée quit froÌ„ contention and conuiets and that you may haue plea therof in your court the amercements for Flit in english is Tensone in french Forstal FOrstal that is to bée quite of amercemeÌ„ts cattelles arrested w tin your lande the amercements therof coÌ„ming Forstaller FOrstaller is hée that buieth Corne Cattel or other marchaundize whatsoeuer is salable by the way as it commeth to markets faires or such like places to bée sold to the intent that he may sel the same againe at a more high and déere price in preiudice hurt of the common welth people c. The paine for such as are conuict thereof c. is the first time amercemeÌ„t and losse of y e thing so bought the secoÌ„d time iudgment of the pillory The third tyme imprysonment and RauÌ„some The fowerth time abiuratioÌ„ of the towne c. Franches Royall FRanches Royall is wher y e Quéene graÌ„ts to one and to his heires that they shal be quit of Tolle or such like Free mariage FRée mariage is when a man seised of landes in fee simple giueth it to an other man to hys wife whoe is daughter Sister or otherwyse of kinne to y e donor in frée mariage by vertue of which words they haue an estate in special tayle and shal hold the land of the bonor quit of al maner of seruices vntill the fowerth degree bée past accomptynge themselues in the first degree except fealtie which they shal doe because it is incident to all tenures sauinge frée almes And such gift may bée made as wel after mariage solemnized as before And a man may gyue landes to his sonne in frée mariage as well as to hys daughter by the opinion of master Fitzh in hys writ of Champertie H. But it appeareth otherwise in master Litt ' and in M. Brooke ti FraÌ„kmariage P. 10. And so it was holden cléere in Graies Inne in leÌ„t An â–ª 1576. 18. El. by y e right worshipful master Rhodes then Reader there Freeholde FRéehold is an estate y t a man hath in landes or tenements or profit to bée taken in fée simple taile for terme of hys owne life or for terme of an others life And vnder that there is no frée hold for hée that hath estate for yeares or holdeth at wil hath no frée hold but they are called Chattels And of fréeholds there are ii sorts that is to say fréeholde in deede fréehold in lawe Fréehold in déede is wheÌ„ a man hath entred into lands or tenemeÌ„tes and is seysed therof really actually in déede as if the father seysed of lands or tenementes in fée simple dieth and his sonne entreth into the same as heire to his father then he hath a fréehold in déed by his entry Fréehold in lawe is wheÌ„ lands or tenemeÌ„ts are disceÌ„ded to a maÌ„ he may enter into them when he will but hath not yet made his entry in deede as in the case aforesayd if the father being seysed of lands in fée simple die seysed they disceÌ„d to his sonne but y e sonne hath not yet entred into them in déede nowe before his entrie he hath a frehold in law Freshsuit FReshsuit is wheÌ„ a maÌ„ is robbed the party so robbed followeth the felon immediatly taketh him with the manner or otherwise and then bringeth an appeale against him and doth coÌ„uince him of the felony by verdict whych thing being inquired of for the Quéene and found the party robbed shall haue restitution of his goodes agame Also it may be sayd y â— the party made freshsute although he take not the theese presently but that it be halfe a yeare or a yeare after the robbery don before he bee taken ifso bée that the partie robbed do what lyeth in him by diligent inquire search to take him yea although hée bée taken by some other body yet this shalbée sayde good freshsuit And so freshsuit is wheÌ„ the lord coÌ„meth to dystreine for rent or seruice the owner of y â— beastes doth make rescous and driueth them into other ground that is not holden of the Lord and the lord followeth presently and taketh them thys called fresh suit and so in other like cases Gager of deliuerance GAger of deliueraunce is where one sueth a repleuin of goods taken but hée hath not deliuery of the goodes and the other auoweth and the plaintife sheweth y â— the def is yet seysed c. and prayeth that the def shal gage the deliueraunce then he shal put in suerty or pledges for the deliuerance a writ shal go foorth to the sherife for to redeliuer the goods c. but if a man claime propertie hée shal not gage the deliuerance Also if he say that the beasts bée dead in the pound hée shall not gage c. Also a man shal neuer gage the deliueraunce before that they be at issue or demurrer in the lawe Warde WArde is when an infant whose auncester helde by knights seruice is in the warde or keepinge of the Lorde of whom those lands were holden And if the tenaunt holde of dyurrs Lordes diuers landes the lorde of whome the land is holden by prioritie that is to saye by the more elder tenure shall haue the wardshippe of the infant but if one tenure bée as olde as the other then hée that first happeth to haue y â— warde of the bodie shall kéepe it but in that case euery lord shal
haue the warde of y â— lande y â— is holden of him but if the tenaunt holde of the Quéene in chiefe then shée by her prerogatiue shal haue the warde of the bodie and of al the land y â— is holden of her and of euery other lorde VVarden WArden most properly is he that hath y e ward shippe or kéepinge of an heire and of land holden by knights seruice or of one of them to his owne vse duringe the nonage of the heire and within that time hath the bestowinge of the bodie of the heire in mariage at his pleasure w tout disperagment And of wardens there be ij sorts namely garden in right garden in déede Garden in right is hée that by reasoÌ„ of his sâ—ry is seised of the wardship or keepinge of the lande and of the heire duringe the nonage of the heire Garden in déede is where the lorde after his seisin as aforesaid grauÌ„teth by déede or without déede the wardshippe of the lande or of the heire or of both to an other by force of which granÌ„t the grauntée is in possess â—â—â— is y e grauntée called garden in déede And this garden in déede maye graunt the heire to an other also bâ—â— that other is not preperlye called garden in déede for that is y â— graunt tée of the garden in right onely and here you may sée Brother Nicholas what misery followeth that tenure by knightes seruyce if the tenaunt die leauinge hys heire within age howe the poore childe may bée tossed and tumbled chopped and chaunged bought sold like a Jade in Smithfild y â— more is maried to whome it pleaseth his gardeÌ„ wherof ensue many euels VV arning WArninge is when an action of detynue of charters is brought agaynst one and the defendaunt saith that the charters were delyuered to hym by the playntife and by an other vpon certaine conditioÌ„s and prayeth y â— the other may be warned to plede with the pleintife whether the conditions bée perfourmed or noe and thereuppon a writte of Scire facias shal go foorth against him And that is called warninge Gauelate GAuelate is a specyall and auncient kynd of Cessauit vsed in Kent where the Custome of Gauelkind continueth whereby the tenant shal forfeit his lands and tenementes to the lord of whom they are holden if he withdrawe froÌ„ hys Lord hys due rents and seruyces after this maner as followeth If any tenant in Gauelkind withholde hys rent hys seruices of y â— tenement which he holdeth of his lord let the Lord séeke by the award of his court froÌ„ 3. wekes to 3. wéekes to find soÌ„e distresse vppon the tenement vntill the sowerth court alwaies with witnesses And if within y â— time he can find noe distresse in that tenement whereby hee may haue i 〈…〉 of his tenaunt TheÌ„ ar y â— fowerth court let it be awarded y â— hée shall take that tenement into his hand in y â— name of a distresse as if it wer an oxe or a cowe and let him kéepe it a yere a day in his hand without manuring it w tin which terme if y â— tenant come and pay his arrerages and make reasonable ameÌ„des for y â— w tholding TheÌ„ let hi haue enioy his tenemeÌ„t as his auncest ours and hée before helde it And if he do not come before the yeare and the daye past then let the Lorde goe to the next Countye Courte with the witnesses of his owne court pronounce there thys processe to haue further witnesse by the award of his court After y â— Countye court holden hée shall enter and manure in those laÌ„ds and tenements as in his owne And if the tenant come after ward and wil rehaue his tenements holde them as he did before let him make agreement with the lorde according as it is aunciently said Hath he not since any thing geuen nor hath hée not since any thing payd TheÌ„ let him pay v. pouÌ„d for his were before he be coÌ„e t'or holder againe There be some copies y â— haue the first verse thus written Nisith yelde and nisith gelde And others thus Nighesith yelde and nighesith gelde But these differ not in signification other coppyes haue it after thys sort Nigondsith selde and nigondsith geld That is to say let him ix times pay ix times repaye Gauelkinde GAuelkinde is a custome annexed goinge with lands in Kent called Gauelkind lands holdeÌ„ by auncieÌ„t Socage tenure And is thought by the skilfull in Antiquities to be called Gauelkind of Gyue all kyn that is to say to all the kyndred in one lyne according as it is vsed among the Germans froÌ„ whom wée Englyshmen and chiefely of KeÌ„t come Or els it is called Gauelkynd of gyue all kynd that is to say to all the male children for kind in dutch signifieth a male child and dyuers other like coÌ„iectures are made by them of y e name Gauelkind which I omit of purpose for shortnesse sake because that here you looke Brother Nicholas as you desired me that I should speake som what largly concerninge other more needefull matters for your purpose which you are desirous to know as touching Gauelkind lands both because you were borne in kent also are most abiding there and therefore you think to be ignorant of y â— maners or customes of your natiue coÌ„trey were a foul shaÌ„e To satisfie your request in this I haue therefore set you here downe the auncient customes of Kent as they haue very truely carefully of late bin published with some cases vpon them gathered out of those bookes that make any mencyon hereof which will I thinke coÌ„teÌ„t your desire at ful And first you must knowe that these gauelkind customes are of good antiquytie brought in hither by y â— Saxons Intes Angles Germans from whom wée Englishmen discend as is aforesaied and were by them vsed and left here and so continued in force vntill WilliaÌ„ duke of Normandy conquered al EnglaÌ„d KeÌ„t onely excepted which he had by composition and not by conquest And in this composition the valyant Kentishmen obtained a graunt of the continuation of their customes of Gauelkynde which euer sins thei haue vsed in the same countrey and thus they are as followeth The customes of Kent THese are the vsages and customes the which the coÌ„munalty of kent claimeth to haue in the tenementes of Gauelkynd and in the men of Gauelkynd allowed in Eire béefore John of Berwike and his companions the Justices in Eire in kent y â— 21. yere of king Ed. the sonne of king Henry That is to say y â— all y â— bodies of KentishmeÌ„ be frée as well as the other frée bodies of England This things hath byn since confessed to be true as it appereth in 30. E. I. in Fitzh titulo Uillenage placiâ— 46. where it is holden sufficient for a man to auoyde the obiection of bondage to say y t hys father was borne in Kent But whether it
will serue in that case to say that hymselfe was borne in Kent it is for good reason to be doubted â— And y t they ought not y e Eschetor of the kynge to choose nor euer in any time did they But the kinge shall take or cause to bée taken suche a one as it shal please hym to serue him in that whych shal be néedeful 3 And that they may their lands their tenemeÌ„ts giue and sel without licence asked of their lords Sauing vnto the Lordes the rents and y e seruices due out of the same tenements 4 And that al and euery of them may by writ of the king or by playnt plede for y e obtaininge of their right as wel of their Lordes as of other men 5 And they claime also y t the coÌ„minaltie of Gauelkind men which hold none other then tenemeÌ„ts of Gauelkind nature ought not to coÌ„e to y e coÌ„mon summons of y e Eire but onely by the Borsholder fower meÌ„ of the Borowe Except the townes which ought to aunswere by twelue men in the Eire The like to this priuiledge is enioyed at thys day in y â— sherifes Lathe where many whole borowes be excused by the onely apparaunce of a Borsholder two foure or sixe other of y â— inhabitants Borsholder is so named of y e saâ—oÌ„ wordes Borber caldor y t is to say the most auncient or elder of the pledges 6 And they claime also that if any tenant in gauelkynd bée attainted of selony for the which hée suffereth Judgement of death the kyng shal haue al hys goodes and hys heire sorthw t after hys death shal be inheritable to al his lands and tenemeÌ„ts which held in Gauelkind in fée and inheritance And he shal hold them by the same seruices customes as hys auncestors helde them whereuppon it is said in Kentish The father to the bough And the son to the plough But this rule holdeth in case of felony and of murder onely and not in case of Treason at alâ— And it holdeth also in case where y e offendor is iustised by order of lawe and not where he withdraweth himselfe after the fault committed will not abyde his lawfull tryall And because that thys custome shal not be coÌ„strued by equity but by a straight and literal interpretation it hath therefore bin doubted whether the brother or vncle shall haue y â— aduauntage therof because the woordes extend to y â— sonne onely See 22. E. 3. abridged by master Brooke tit Custome 54. 7 And if he haue a wife forthwith be shée endowed by the heire if hee be of age of the one halfe of al the landes and tenements which her husband held of Gauelkynd nature in fée to haue to hold accordyng to the forme hereafter declared And of such lands y â— kinge shall not haue the yere nor wast but onely the goodes as is béefore said The wife shall not lose her dower for the default of her husbande but in such case where the heire shal lose his inheritance for the offence of his father 8. Henry 3. 8 And if any manne of Gauelkinde eyther for felonie or for suspicion of felonie withdrawe him out of the countrey and bee demaunded in the countie as he ought be afterwarde vtlawed or put himselfe into the holy church and abiure the lande and the Realme the kinge shall haue the yeare and the wast of his landes and of al his tenementes together with al his goodes and chattels Soe that after the yeare and the day the next Lord or lordes shal haue their Eschetes of those landes and tenements euery lorde that which is immediatly holden of him So is it holden in the bookes 8. E. 2. abridged by master Fitz. ti PrescriptioÌ„ 50. 22. E. 3. abridged by master Brooke ti Custome 54. 9 And they claime also that if any tenaunt in Gauelkinde and bée an inheritor of lands tenemeÌ„ts in Gauelkind y â— al his sonnes shal part y â— inheritaÌ„ce by equal portioÌ„s 10 And if there bee noe heire male let y e partitioÌ„ be made betwene the females euen as betwene bro. But y â— statut of Praerog regis cap. 16. sayeth That the females shall not deuide wyth the males which is to bée vnderstode of such as bée in equall degrée of kynred as Brothers and sisters as in this ix and. x. deuision For if a man haue issue iij. sonnes the eldest haue issue a daughter and die in the life of his father and the father dieth In this case the daughter shalioyne with the two other brethren her vncles for that shée is not in equal degrée w t them as her father was whose heire neuerthelesse she must of necessity be 11 And let the messuage also be departed betwene them but the Astre shall remayne to the yongest sonne or daughter and be the value thereof deliuered to each of the parceners of y â— heritage froÌ„ xl féete from y t Astre if y â— tenement wil soe suffer By this worde Astre is ment as is coÌ„iectured either the hall or chéefe roome of the house â–ª eyther else the well for water or the south side of the buildinge for Astre beeinge sounded without s may come of the latin worde Atrium which signifieth a Hall or of Haustrum whichbe tokeneth the bucket of a wel or of Austrum the south side euery of which haue their particular coÌ„modities aboue the rest of y â— house or tenement Or otherwise being souÌ„ded with s it may be deduced from y e freÌ„ch word Asistre by contraction Astre which is as much as a site or situation and with the article le before it Lester a churchyarde or Court about a house But at this daye there is no such regarde made iÌ„ y â— particioÌ„ but oÌ„ly consideration had that the parts them selues be equal indifferent 12 And then let the eldest brother haue y â— first thoyse and the others afterwarde accordinge to their degrée 13 Likewise of houses which shal bee founde in such messuages let them be departed amongst the heires by equall portyons that is to wéete by foote if néede be Sauinge the Couert of the Astre which shal remain to the yongest sonne or daughter as is beforesaid Soe neuerthelesse that y â— yongest make reasonable amends to his parceners for the part which to them belongeth by the awarde of good men 14 And of the aforesayd tenements whereof one onely suit mas wont to be made before time be there not by reason of y â— particion but one sole suit made as it was before accustomed but yet let all the parceners make contribution to y â— parcener which maketh y â— sint for them 15 In like sortlet y â— goods of Gauelkind persons be parted into thrée partes after the funerals and y â— debts payed if there bée lawful issu on liue so y t y e dead haue one part his lawfull sonnes doughters an other part
vsage of the countrey y â— comoÌ„ law of the Realme also whych expoundeth the word Giue to meane a feoffement which not onely disalloweth of any gyft made by an infant but also punisheth the taker in trespas vnlesse he haue it by liuery from y â— infants owne â—â—ndes as appereth in 26. H. 8. 2. 9. H. 7. 24. 18. E. 4. 2. 22. H. 6. 3. and diuers other bookes 21 And if any such tenant in Gauelkind dye and haue a wife that ouerliueth him let that wife by and by bee endowed of y â— one halfe of the tenements whereof her husband died vested and seised by y â— heires if they be of age or by the Lords if y â— heires be not of age soe that she maye haue the one halfe of those landes and tenements to holde so longe as shee kéepeth her a widowe or shal bee attainted of child birth â–ª after the auncient vsage that is to say that iâ— wâ—â— she is deliuered of childe the infant be herde cry and that the hue and 〈…〉 be raysed and the countrie assembled and haue the viewe of the childe so borne and the mother then let her loose her dower wholye â–ª and otherwise not so longe as shée holdeth her a widowe whereof it is sayed in kentish He tâ—at doth wende her Let him lende her This custoÌ„e hath bene â—llowed of by the common lawe longe tyme since as may bee reade Praerog regis cap. 16. 2. H. 3. in Fitz. t' PrescriptioÌ„ 59. c. But it is a doubt whether a womaÌ„ shal be endowed by this custoÌ„e of a possession in lawe or noe for that y â— words be of y e tenements wherof her husband died vested seised which worde vested inforceth a possession in déede and not in lawe onely And therefore if landes in Gauelkynde discend to a maried man â–ª which dyeth before hée make his entry into the same Inquire whether it be y e maner to endowe his wife thereof or noe A woman shall not bée endowed by thys custome of a bailliwike or faire or such like profitte by the oppynyon of M. Parkins fo 84. because y â— wordes of this customary dower bée terres et tenements and al customes shal find a litteral and streight interpretatioÌ„ And where she is to be endowed by this custome shée may very wel be endowed of a moytie to be holden in coÌ„mon with the heire y t eÌ„ioyeth y â— other halfe c. It is a doubt whether y â— a woman entituled to dower in gauelkind may waiue her dower of the halfe after this custome bring her accioÌ„ to be eÌ„dowed of y e 3. at y e coÌ„moÌ„ lawe so exeÌ„pt her selfe froÌ„ al daunger of y e customary conditions or no SoÌ„e haue byn of opinioÌ„ y â— she is at lybertie to take y â— oÌ„e refuse y â— other at her pleasure therefore inquire thereof c. 22 And they claime also that if a man take a wife which hath inheritaunce of Gauelkinde and the wife dieth before hym let the husbande haue the one halfe of those landes and tenements whereof she dieth seised soe longe as he holdeth him a widower without doinge any strippe or wast or banishmeÌ„t whether ther were issue betwene theÌ„ or no. And if he take another wife let him lose al. 23 And if any tenement of Gauelkinde do escheat and that escheat be to any lord which holdeth by fée of Hawberke or by Serieancie by death or by gauelate as is her after sayd or be to him reÌ„dred vp by his tenaunt which before helde it of hym by quite clayme thereof made or if his escheat bee by Gauelate as is hereafter sayd let thys land remaine to y â— heires vnpartable And this is to be vnderstood where the tenant so rendringe doth reteine no seruice to himselfe but saueth neuerthelesse to the other lords their fées fermes and the rentes wherewith the aforesaid tenementes of Gauelkynde so rendred were before charged by him or them which might charge theÌ„ To hold by fée of Hawberke or by Serieancie if it bee graund Serieancie is to holde by knightes seruyce Heahbeony in SaxoÌ„ is a high defence and the Customes of NormaÌ„dy cal y â— fiefe or fée de Haubert which oweth to defende the land by ful armes y t is by horse haubert target sworde or helme And it consisteth of 300. acres of land which is y â— same as some thinke that wée called a whole Knights fée 24 And they claime also that if any tenaunt in Gauelkinde wythholde his rent and his seruices of the tenement which he holdeth of hys lorde let the lord séeke by the awarde of his courte from iij. wekes to thrée wéekes to find some distresse vppon that tenement vntil the iiij court alwaies with witnesse And if w tin that time hée can find no distresse in y â— tenemeÌ„t wherby he may haue iustice of his tenaÌ„t theÌ„ at y â— iiij court let it be awarded that hee shall take that tenement into his hande in the name of a distresse as if it were an Oxe or acowe and let him kepe it a yeare a day in his hande without manuringe it within which terme if the tenaunt come and paye his arrerages and make reasonable amendes for the withholdinge Then let him haue and enioye his tenement as his auÌ„cestors he before helde it And if he do not coÌ„e before y â— yere y e day past theÌ„ let y â— lord go to y e next County court w t the witnesses of his owne court and pronounce there this processe to haue further witnesse And by the awarde of his court after y â— couÌ„tie court holden he shal enter manure in those landes and tenementes as in his owne demeanes And if the tenaunt come afterwarde and wil rehaue his tenements and hold them as he did before let him mak agreemeÌ„t w t y e lord according as it is auÌ„cieÌ„tly said Hath he not since any thing giuen nor hath le not since any thing paid Then let him paye fiue pound for his were beefore he becoÌ„e tenant or holder againe Some copies haue the first verses thus Let him ix times pay ix times repaye This custoÌ„e is touched by the waye by master Frowike 21. H. 7. 15. by him thought to be good but whether it be at this daye put in vre enquire further 25 Also they clayme that no manne ought to make an othe vppon a booke neither by dystresse nor by the power of the lord nor his Bailife against his will w tout y â— writ of the kynge vnlesse it bée for fealtie to be done to his Lord but onely before the Coroner or such other minister of the king y t hath Royal power to enquire of trespasse coÌ„mitted against y â— Crowne of our Lord the king 26 And they clayme y â— euery KeÌ„tishman may essoine an other either in y â— kinges court or in the county or in
lawe because that in the eye and consideration of the lawe hée is demed to be in possession for asmuch as hée is tenant to euery mans action that will sue concerning y e same lands or tenementes Preamble PReamble taketh hys name of the preposition Pre before and the verbe Ambulo to goe see ioyned together they make a compound verbe of the first coniugatyon Preambulo to go before and hâ—â—â—of the first part or beeginning of an act is called y â— preamble of the act which preamble is a key to open the minds of the makers of the act and y e mischiefes that they in tende to remedy by the same as for example the statute made at West â–ª minster the first the 37. chapter which giueth an attaint the preamble of which is thus For as much as certain people of y e realme dout very little to giue false verdictes or othes which they ought not to do wherby many people are disherited and lose their right it is prouided c. Prescription PRescription is when one hath had or vsed any thinge sith the time whereof no minde is to to the contrary Presentment PResentment is when a manne which hath ryght to géeue a benefice spiritual nameth the personne to whome hée will geue it and maketh a writing to the Bishop for him that is a presentation or presentmeÌ„t Pretensedright or Title PRetensed right or title is where one is in possession of landes or tenements and an other who is out of possession claimeth it or sueth for it Nowe the pretensed right or title is said in him who soe doth sue or clayme And if he afterward come to y e possessioÌ„ of the same laÌ„ds or tenements his right or title is extinâ—t or suspendedin the lande Priuie or priuite and Pris uies PRiuie or priuite is where a lease is made to hold at wil for yeres for life or a feoffement in fée and in diuers other cases nowe béecause of this that hath passed betwéene these partyes they are called priuies in respect of straungers betwéene whom noe such dealinges or conueyances hath ben Also if there be Lorde and tenaunt and the tenaunt holdeth of y e lorde by certein seruice there is a priuitie betwene theÌ„ because of the tenure and if the tenaunt be disseysed by a straunger there is no priuitie béetwéene the dissâ—â—our and y â— lord but the priuitie styll remaineth béetwéene the Lord and the tenant thâ—t is disseysed and the Lord shall auowe vpon him for that he is his tenant in right and in the iudgment of the lawe Priuies are in diuers sortes as namely priuies in estate priuies in déede priuies in lawe priuies in right and priuies in bloode Priuies in estate is where a lease is made of the manner of dale to A. for lyfe the remâ—ynder to B. in see there both A. and B. are priuies in estate for their estates were both made at one time And soe is it in the first case heare where a lease is made at wil for life or yeres or a feoffement in fée y â— lessées or feoffées are called priuies in estate so are their heires c. Priuyes in déede is where a lease is made for lyfe and afterwarde by an other déede the reuersion is graunted to a straunger in fée thys grauntee of the reuersion is called pryuie in déede béecause that hée hathe the reuersyon by deede Priuie in lawâ—is where there is Lorde and tenaunt the tenaunt lesseth the tenauncye for lyfe and dyeth without heire and the reuersion escheates to the lord hée is said priuie in lawe béecause that hée hath his estate onely by she lawe that is to saye by escheat Priuie in ryght is where one possessed of a terme for yeres graunts his estate to an other vppon coÌ„dition maketh his executours and dieth nowe these executors are priuies in right for if the condityon bee broken and they enter into the lande they shall haue it in the right of their testatour and to his vse priuie of blade is the heire of y â— feoffour or donor c. Alsoe if a fine be leuied the heires of him y t leuied the fine are called priuies Priuiledges PRiuiledges are lyberties and Fraunchises graunted to an offyce place Towne or manner by the Quéenes great Charter letters patentes or act of parliament As Tolle sake Socke Infangtheefe vtfangethéefe turne tolle oredelfe and diuers such like for which looke in their proper titles and places Next frende NExt frend and warden in Socage is all one and is where a maÌ„ seysed of landes holden in Socage dieth hys issue within age of 14. yeares then the next frind or next of kinne to whom the lands cannot come or discende shall haue the keepinge of the heire and of the land to the only vse of the heire vntil he come to the age of 14. yeares and then at that yeares hée may enter and put him out and bringe hym to accompt but in that accompt hée shalbée allowed for all reasonable costes and expences beestowed either vppon the heire or his land And the next frind or next of kynne to whom the inheritaunce cannot discend is thus to be vnderstoode if the landes discend to the heire from his father or any of the kyn of his fathers side theÌ„ the mother or other of the mothers side are called the next of kynne to whom the inheritaÌ„ce cannot dyscende for beefore that it shal so dyscende it shall rather escheat to the Lorde of whom it is holden and so it is to be vnderstoode where the landes come to the heire from hys mother or any of y e kyn of his mothers side TheÌ„ the father or other of the fathers side are called the next of kin to whom the inheritaunce cannot discende but shal rather escheat to the Lorde of whom it is holden Protestation Protestation is a sauinge to the partie that so pleadeth by protestation to bée concluded by any matter alledged or obiected agaiÌ„st him vpoÌ„ which he caÌ„not ioin issu And is no other thing but an exclusion of the conclusion for hée that taketh the protestation excludes the other party to conclude hym And thys protestatyon ought to stand with the sequele of the plea and not to bée repugnant or otherwise contrary Purchase PUrchase is the possess that a manne hath in landes or tenements by his owne act meanes or agréement and not by title of â—iscent from any of his auncestours Quarentine QUarentine is where a man dieth seysed of a maner place and other lands whereof his wyfe ought to bée endowed then the woman shall hold the manner place xl dayes within which time her dower shalbée assigned But if shée marie w tin the 40. daies shée shall loose her quarentine Fifteene FIftéene is a payment graunted in parliameÌ„t to the Quéene by the Temporaltie namely the 15. part of their goods And was vsed in auncient tyme to bée leuied vppon their Cattayle goynge in their groundes which thynge was
very troublesome and therefore nowe for the most part that way is altered and they vse to leuy the same by the yarde or Acre or other measure of lande By meanes whereof it is nowe lesse troublesome and more certen then before it was And euery Towne and coūtrey doe knowe what summe is to be payed amonge them and howe the same shal be raysed Wée read that Moyses was the first that did number the people for he nūbred the Israelits and therefore the first taxe subsidy tribute or fiftéene was inuented by him amonge the Hebrues as Polidore Uirgil doth thinke Regrator REgrator is hée that hath corne vittailes or other thinges sufficient for his owne necessary néede occupation or spendinge and doth neuerthelesse engrosse and buy vppe into hys handes more Corne vittailes or other such thinges to the entent to sell the same againe at a highe rand déerer price in faires marketes or such like places Reioynder REioynder is when the defendant maketh aunswere to the Replication of the plaintyfe And euery Reioynder ought to haue these ii properties specially that is to say it ought to bee a sufficient aunswere to the Replication also to followe and enforce the matter of the barre Reliefe REliefe is sometimes a certen some of money that the heire shall pay to the Lord of whō those landes are holden which after the discease of his auncestour are to him dyscended as next heire sometymes it is the payment of an other thinge and not money And therefore reliefe is not certen and a like for all tenures but euery sundry tenure hath for the most part hys speciall reliefe certayne in it selfe Neyther is it to bée payed alwayes at a certen age but varyeth therein also acording to the tenure As if the tenaunt had landes holden by knyghtes seruics except great Sergeantie and die his heire being of full age and helde his lands by the seruice of a whole knightes fée the Lord of whome that lands are soe holden shal haue of the heire 100. s. in the name of relyefe And if he helde by lesse then a knightes fée hee shal pay lesse and if more then more hauinge respect alwaies to the rate for euery knightes fée an hundred shillinges And if hée helde by graunde serieantie which is alwayes of the Quéene and is also knightes seruice then the relyefe shalbée the value of the lande by the yeare besides al charges issuinge out of the same Reliefe that the lorde shal haue for lands holdē in Socage is soe much more as the rent that the tenaunt holdeth his lande in Socage by as if hee holde by a penye rent and die the lorde shal haue that peny rent and a peny ouer for reliefe of what age soeuer the tenaunt be at the death of his auncestour And note that insome cases the lord shal haue his reliefe immediatly after the death of his tenaunt if it soe be that the tyme of the yeare wil suffre the same to be gotten as money corne flesh fish spices or any such like and for default of payement the lorde maye therefore of cōmon right presently distraine But in some cases the Lorde must stay for his reliefe a certen time when necessitie soe constraineth As if the tenāt helde by a rose a chery a strawbery or such like die in winter he shal not haue reliefe til roses cheries and strawberies are naturally fresh and ripe which is about midsomer then he shal haue one for rent an other for reliefe There is an other kind of reliefe that is payd after the death change or alienation of fréeholders that hold in auncient demesne and otherwise is paied as a knowledge of the tenure betwene y e lord and the tenant The same is not certein how much But doth vary according to y e custome of the mannour or tenure and is to be presented by the homage or sutours at the next court day of the same maner And note that alwaies when the reliefe is due it must bee payed at one whole payment and not by partes although that the rent bée to be payed at seueral festes Remainder REmaynder of lande is the lande that shal remaine after the particuler estate determined As if one graunt lanoe for terme of yeres or for lyfe the remaynder to I. S. that is to saye that when the lease for yeares is determined or lessée for life is dead that then y ◠land shal remaine shal be or abide with to or in I. S. Replication REplication is when y ◠defendaunt in any action maketh an aūswere and the plaintife maketh an aunswere to that that is called the replicatiō of the plaintife Reprises ▪ REprises are deductions payments and dueties that goe yearely and are payed out of a manour As rent charge rent secke pentions corodies annuities such like Resceipt REsceit is when an action is brought agaynst the tenaunt for terme of life or tenaunt for terme of yeres and he in the reuersion commeth in and praieth to be receiued to defende the land and to plede wyth the demaundaunt And when hée commeth it behoueth that hée bée alway redy to plede with the demaundant Reseruation REseruation is taken diuers waies hath diuers natures as some times by way of exception to kéepe that which a mā had before in him as if a lease bee made for yeares of ground reseruing y e great trées growing vpon the same nowe y e lessée may not meddle w t thē nor w t any thing y t commeth by reason of thē so longe as it abideth in or vpon the trées as mast of Oke Chestnut Aples or such like but if they fall from the trées to the ground then they are in right the lessées for y ◠ground is set to him and al theruppon not reserued c. Sometimes a reseruation doth get and bringe forth an other thynge which was not before As if a m◠lease his lāds reseruing yerely for y e sāe xx li. c. and diuers other such reseruatiōs thereby And note y e in auncient time their reseruations were as wel or for the more part in victualles whether flesh fish corne bread drink or what els as in mony vntill at the last and that chiefely in the raigne of kinge Henry the first by agrement y ◠reseruation of victuals was changed into ready money as it hath hither so since continued Retraxit REtraxit is the preterperfectēce of Retraho compound of Re and Traho which make Retraho to pull backe and is when the party plaintife or demaundant commeth in proper person into the court where his plea is and sayth that hée wil not procéede any farder in the same c. Now this shal be a barre to the accion for euer Reeue REeue is an officer but more knowen in auncient tyme then at thys day for almost euery manour had then a Réeue and yet styll in many coppy hold manners where the old custome any thing preuayleth
definitiō of villenage is villein of bloude and of tenure And it is he of whome the Lord taketh redemptyon to mary his daughter to make him frée it is hée whom the lord may put out of his lāds and tenements at his wil alsoe of al his goods and cattel And note wel y t a sokmā is no pure villeine nor a villeine oweth not ward mariage nor reliefe nor to do any other seruices real And note wel that the tenure in vyllenage shall make noe frée man villeine if it be not continued sith tyme oute of mynde nor vyllayn land shal make no frée manne villeine nor frée lande shall make noe villeine frée except that the tenāt haue contynued frée sith the tyme of noe minde but a villeine shal make frée land villein by seysin or claime of y e lord And note wel that if a villain purchase certaine land take a wife alien and dieth before the claime or seysin of y e lord y e wife shalbée endowed And note wel y t in case that the lord bring a Precipe quod reddat against the alien the which voncheth to warraunt the issue of the villaine which is villeine to the Lorde hée shal haue the voucher by protestation y e Lorde may say that notwithstandinge that hee plede with his villeine yet his villeine shall not bée enfraunchised And note well that a bastarde shall neuer bee iudged bylleyne but by knowledge in court of recorde And note well that if det be due by a Lord to a free man and he maketh two men his executours the which bée villeynes to the sayed Lorde and dyeth the villeines shall haue an actyon of dette agaynst their Lorde notwythstandinge that he plede with them And if he make protestation they shall not bée for so much enfraunchised for that that they be to recouer the dette aforesaid to the vse of an other person that is to say to the vse of their testatour and not to their owne vse And if the tenāt in dower haue a villeine which purchaseth certaine land in fee and after the tenaunt in dower entreth shée shal haue the land to her to her heires for euer more the same lawe is of tenaunt for terme of yeres of a villein And note wel that the Lorde may roble his villain bete and chastice at his wil saue onely that he may not maime him for then he shal haue appell of mayme agaynste him ¶ And note well that a villaine may haue iij. actions against his lorde y t is to say appel of death of his aunce stour appel of rape don to his wife appel of maime And note well if two parceners bring a writ of Nyefe one of thē be nonsute the nonsuite of hym shalbée iudged y t consuit of them both soe that if the non-suite be after apparance they shalbée put oute from that actiō for euer for the lawe is such in fauour of liberty And note well if two haue a vylleine in comen one of them make to him a manumission he shal not be made frée against both And note wel that in a writ de Natiuo habendo it behoueth that the lorde shewe howe hee cōmeth priuy of the bloode of the villeine of whome hée is Lorde c. And if hée nor none of hys auncestours were not seysed of none of hys blood he shall not wynne by his action if y ◠villein haue not knowledged in court of record him selfe to bée his villein And note wel that in a writ of Niefe may not be put more niefes then ij this was first brought in in y ◠hatred of bondage But in a writ de Libertate probanda may bée put as manye nyefes as the plaintife will ¶ And note well that if the vylleyne of a Lorde bée in auncien demesne of y e king or other towne priuileged within a yere and a day the lorde may seise him and if he dwel in the same towne or other place fraunchised by a yere and a daye without seisin of the Lord he hath noe power to seyse him after if hée goe not in estraie out of the foresaid fraunches Taile ¶ To hold in the taile is where a man holdeth certaine lāds or tenements to him and to his heires of hys body béegotten And note wel that if y ◠land be géeuen to a man and to his heires males and hée hath issue male hee hath fée simple and that was adiudged in y e parliament of our Lord the kynge But where landes or tenementes bée géeuen to a man and to his heirs males of his body begotten then hée hath fée tayle and the issue female shal not bée enheritable as it appereth the xiiii yere of Edward the third in assise Taile apres possibilitie ¶ To hold in the taile after possibilitie of issue extinct is where lād is geuē to a mā to his wife to the heires of their ii bodyes ingendred and one of them ouerlyueth the other wythout issue betwéene them béegotten hée shall holde the lande for terme of hys owne life as tenaunt in the taile after possibilitie of issue extinct And not withstanding that he do wast he shal neuer be impeched of that wast And note that if hée alien hée in the reuersion shal not haue a writte of entre in consimili casu But hée may enter and hys entre is lawfull per Robertum Thorpe chiefe Justice Frankmariage ¶ To holde in frankemariage is to holde in the seconde tayle lymit in the statute of Westminster seconde cap. 1. And the feoffour shal acquite y ◠feoffée of al maner of seruices vnto y e 5. degrée be past and y e feffour shal do all the seruice and suites duringe y e sayde terme And after the heires of the feoffée shall doe it for that that the priuitie of bloud is past And if hée bée distrained for seruyce hée shal haue a writ of Mesne agaīst him supposing that he held the lands of him but he shal not haue the foreiudgement if it be not in aduauntage of his issues And note well that after the fowerth degrée be past he shall bee attendaunt of as much seruice to the donour as the donour is attendant to the Lord paramount And if hée do felony for which he is attaint the king shal haue his lands for terme of his life naturall And after hys death hys issue shal inheryte as by force of the tayle And in this case none shall haue hys lands by way of eschete no more then in any other taile And in case that the tenant die without heire of hys body begotten the lande shall reuert to the donour as it shoulde in the common tayle And if a manne let his land to another in franke mariage yeldynge to hym a certayne rent by yeare hée shall hold this land in the common tayle and not in frankemariage for by the rent reserued these woordes
fouÌ„d then y â— reconisée may haue a writ of the chauncery which is called Extendi sacias direct to al shirifs where hée hath landes to extende hys landes and goods to deliuer y e goods to him and to seise him in hys landes to holde them to him and to hys heires and his assignes til that the debts be leuied or payed and for that tyme hée is tenaunt by statut merchaunt And note wei that in a statute merchaunt the reconisée shall haue executyon of al the landes which the reconisour hadde the daye of the reconisaunce made and any tyme after by force of the same estatute And note well that when any waste or destruction is made by the reconisée his executors or by him that hath estate the reconisour or his executours shal haue the same lawe as is before sayd of the tenant by Elegit And note wel if the tenaunt by statut merchaunt holde ouer hys terme he that hath right maye sue against him a venire facias ad computandum or els enter by by as vppon tenaunt by Elegit ¶ There be thrée maner ofrents that is to saye rent seruice rent charge and rent secke Rent seruice is where a manne holdeth of an other by fealtie and for to doe suit to his court and yelding to him a certaine rent by the yere for all manner of seruices ¶ And note wel that if the Lorde be seised of the seruice rent before said they be behinde and he distraine and the tenant rescue the dystresse hée may haue Assyse or a writte of rescous but it is more necessarye for hym to haue assyse then a writ of rescous for that by assise he shal recouer his rent his damages but by a writte of Rescous hée shall not recouer but the thynge and the dammages ¶ And note well that if the lorde be not seysed of the rent and seruyce and they bée behynde and hee dystrayne for them and the tenaunt take againe the distresse hee shall not haue assise but a wrytte of Rescous aud shal not néede to shewe bys right And note wel that if the Lord distreine his tenaunt in socage for knights seruice whiche is not denyed him auowe for y â— same seruice in court of record he shal be charged by the same seruice by Fynch termino Hillarij Anno xlvj And note well y â— if the Lord may not find a distresse by two yeare hée shal haue against the tenaunt a writte of Cessauit per biennium as â–ª it appereth by the statute of Westm 2. cd 21. And if the tenant dye in the meane time and his issue enter the Lord shal haue against the issue a writ of entre vpoÌ„ y â— Cessauit or if the tenaunt alien y â— lord shall haue against the alienée the foresayd writte But if the Lorde haue issue and dye and the tenaunt bée in arrerages of the sayde rent and seruice in the time of the father of the issue not in the time of the issue he may not distrain for y â— arrerages in y â— time of his father and hee shal haue none other recouery agaynst the tenaunt or any other for that that such aduantage is géeuen by the lawe to the tenaunt And note well that rent seruice is that to the which belongeth fealtie but to rent charge rent seck belongeth not fealtie but it belongeth to reÌ„t seruyce of common right Rent charge Rent charge is where a man grauÌ„teth certaine rent going out of hys lands or tenemeÌ„ts to another in fée simple or in fée taile or for terme of life by déede vpoÌ„ condition y t at what time the rent bée beÌ„ehinde it shall bèe wel lawefull to the grauntée to hys heires or assygnes or distrayne in the same laÌ„ds or tenementes And note wel that if the rent be behind it is wel lawful to the grauntée at his election to haue a writte of annuiâ—y or els he may distraine and if the distresse bée taken agaynst his will from him and he was neuer seised béefore he hath noe recouery but by writ of Rescous for y e distresse first taken geueth not to him seysin onely if hee haâ— the rent beefore for if he were seysed of the rent before and after the rent bée behind and hée dystraine rescous to hym bée made hee shall haue assise or a writte of rescous And note wel that in euery assise of reÌ„t charge and annuell rent or in a wrytte of annuitie it béehoueth to him that bringeth the writte to shewe forth an especialty or els he shall not maintaine the assise but in a Mordauncestour or formedon in the discender or other writs in the which title is geuen or comprised brought of rent charge or annuell rent it néedeth not to shewe especialtie And note well that if a maÌ„ grauÌ„t a reÌ„t charge to an other y â— grauntée purchase the halfe of the land whereof the rent is going out all the rent is extinct and if the grauntée release to the grauntour parcell of the rent yet al the rent is not extinct But in reÌ„t seruice the lawe is otherwyse for notwithstandinge y â— y â— Lorde hath purchased y â— halfe of y â— laÌ„d wherof y â— rent is going out yet y â— rent is not extinct but for the halfe the cause of the diuersity is that rent seruice may bée seuered to one portion but not rent charge And note wel that if rent charge be graunted to two ioyntly and the one release yet the other shall haue the halfe of the rent And also if one purchase the halfe of the lande whereof the rent is goyng out the other shall haue the halfe of the rent of hys companion And if the disseysour charge y â— land to a straunger and the disseisie bringe an assise and recouer the charge is defeated But if hée that hath right charge the lande and a straunger faine a false action against him recouer by defaut the charge abydeth And note wel that in case that purparty bée béetwéene two parceners and more land bée allotted to one then to the other and shée that hath more of the lande chargeth her land to the other and shée happeth the rent shée shal mainteyne assyse without especialty And if y â— grauÌ„tée haue in fée simple or in fée tayle and hath issue and dieth if the issue bringe a formedon or assise of mordauncester hée shall neuer bée charged to shewe an especialty Rent secke Rent secke is where a man holdeth of me by homage fealty other seruice yeldyng to mée a certaine rent by y e yere and I graunt this rent to another reseruinge to mée the seruice And note wel that in rent seck if a man be seised of the rent and the rent bée behind hée may not dystrayne but hee shall haue assise of nouel disseisin And note well that if rent secke be graunted to a manne and to hys heires and the
right to present is called patron Age prier AGe prier is wheÌ„ an accion is brought against an infant of lands that hee hath by discent there he shal shewe the matter to the court shall pray that the action shal abide til his ful age of one and twenty yeres and so by awarde of the court the suit shal surcesse But in a writte of Dower in Assise also in such actions where the infaÌ„t coÌ„meth in of his own wroÌ„g he shal not haue his age Also note well y â— there be many diuersities of ages for y â— Lord shal haue ayde of his tenant in socage for to marye hys doughter when y â— doughter of the lord is of thage of vii yeres and also aide for to make his sonne heire knight when hée is of the age of seuen yeres Also a womaÌ„ which is maryed at the age of ix yeres yf her husband die seysed shal haue dower not before nine yeres Also xiiij yeres is y â— age of a womaÌ„ y â— she shal not be in ward if she were of such age at y â— time of the death of her auÌ„cester but if she were w tin y â— age of xiiii yeares and in ward of y e lord theÌ„ she shal be in ward til y â— age of 16. yers also xxj yeres is the age of y â— heire male to â—ée in warde and after y â— out of warde also it is y â— age of male and female to sue to be sued of lands which they haue or clayme by discent to make al maner of contractes bargaines and not before But if such an infaunt w t the age of xxj yeres geue his goods the donee take them hee may haue an action of trespas but otherwise it is if hee delyuer them him selfe Agreement A GréemeÌ„t is after this sorte defined or expouÌ„ded in master PlowdeÌ„s ComeÌ„taries AggreamentuÌ„ is a worde compounded of two wordes namely of Aggregatio and Mentium that is to say agremeÌ„t of minds so that agréement is a consente of myndes in some thinge done or to bee done and by drawinge together of the ij words Aggregatio meÌ„tiuÌ„ by the hasty short pronouncing of theÌ„ they be made one woorde to wit AggreameÌ„t ' which is no other thing then a ioining putting cuppling knitting together of ij or moe mindes in any thinge done or to bée don Sée after in Testament And this agréement is in iij. maners The j. is an agrement executed al ready at y â— beginning The second is an agreement after an act done by an other and is an agreement executed also The third is an agremeÌ„t executorie or to be don in time yet to come The first which is an agreement executed already at y â— beginning is such wher of mencion is made in y â— stat of 25. E. 3. cap. 3. of clothes in y â— iiij statute which saith that y â— goods things bought by forestallers beinge therof attainted shalbée forfait to the Queene if the huyer haue therfore made gree with the seller in which case this woorde Gree which is otherwise called agrement shal be vnderstood agremeÌ„t executed y â— is paiment for y â— things The secoÌ„dmaner of agrement is where one doth a thing or act and an other agrees or assentes thereto afterward as if one doe a disseisin to my vse and after I agree to it nowe I shal be a disseisour from the beginning such agréement is an agréemeÌ„t after an act don The iij. agremeÌ„t is wheÌ„ both parties at one tyme are agreed that such a thing shal be done in time to come and this agréement is executory in as much as the thing shal be done after and yet there their â—â—indes agreed at one tyms but because the perfourmance shal be afterwarde and so the thinge vppon which the agreemeÌ„t was made remaynes to be done y â— agréemeÌ„t shal be said executory And y â— the statute of 26. H. 8. cap. 3. doth prooue where it saith that euery vicar person such like c. before their actual possession or medling w t the profits of their benifice shal satisfie content c. or agree to pay to the vse of the Quéene the first fruits c. and if any such person vicar c. enter in actual possessioÌ„ c. this agrement is to be vnderstoode executory as y â— coÌ„mon vse prooues for it is vsed y â— he w t one or ij w t him doe make two or thrée obligations for it to bée payed at certeine dayes after And this agréement executorye is denided in ij pointes One is an agréement executory which is certein at the beginninge as is sayed laste béefore of the first fruits The other is where y â— certentye doth not appeare at the first and y â— parties are agréed y â— the thinge shal be performed or payed vppon the certenty knowen As if one sell to an other al hys wheat in such a tasse in his barne â—nthreshed it is agréed betwene theÌ„ y â— he shal pay for euery bushel xij d. when it is threshed cleaned measured Aide AIde is when tenaunt for terme of life tenaÌ„t in dower tenant by curtesie or tenant in tayle after possibilitie of issue extinct is impleded then for that y â— they haue noe estate but for terme of lyfe they shal pray in aid of him in the reuersion proces shalbée made by writ against him to coÌ„e and plede with the tenaÌ„t in the defence of the land if he wil but it behoueth that they agree in plee for if they vary the plée of the tenaÌ„t shal be taken and then the aide prayer is voide but if hee come not at the second writte then the tenant shal aunswere sole Also tenaunt for terme of yeares tenaunt at wil tenaunt by Elegit and tenaunt by statute merchaunt shall haue aide of him in the reuersion theseruant and baylie of their mayster when they haue done any thing lawfully in the right of their maister shal haue aide Ayde of the Kynge is in lyke case as it is sayed béefore of a common personne and also in manye other cases where the king may haue losse although that the tenaunt be tenaunt in fee simple hée shal haue aide as if a rent bée demaunded against the kynges tenant which holdeth in chiefe he shall haue aide and so hée shall not haue of a common person Also where a Citie or borough hath a fee ferme of the kinge any thinge bée demaunded agaynst them which béelongeth to the fée ferme they shal haue ayde for the losse of the king Also a man shall haue ayde of the kynge in the stéede of voucher Also the kynges Bailife the collector and purueyour shall haue ayde of the kinge as well as the officers of other persons Alien ALien is he whose father him selfe were both borne out of the Quéenes legeance and if such an
dyd nothinge for it by meanes whereof hospitalyty decaied in the place where it ought to haue beÌ„ chefelye mayntained namelye in the parishe where the benefice was and where the profites dyd growe so it continueth to this day to y â— great hinderance of lerninge y â— empouerishmeÌ„t of y â— ministery y â— infamy of y â— gospel professor therof Approouement APprouemeÌ„t is wher a man hath common in the lords wast grouÌ„d and the Lorde encloseth part of the wast for himselfe leapinge neuer the lesse sufficient comon w t egresse regresse for the coÌ„moners This enclosinge is called approouement Arbiterment ARbiterment is an awarde determination or iudgement which one or moe maketh at the request of ij parties at the least for vpoÌ„ some det trespas or other controuersie had betwéene the sayed parties And this is called in latin Arbitratus and arbitrium and they that make y e award or arbiterment are called Arbitri in english Arbitrators Arest ARest is when one is taken and resirayned from his libertye none shal be arrested for debt trespas detinue or other cause of action but by vertue of precepte or coÌ„maundemeÌ„t out of some court But for treason felony or breaking of the peace euery maÌ„ hath aucthority to arest without warrant or precept and wher one shal be arrested for felony it behooueth y â— there hath bene some felony done and that he be suspected of y e same felonye or otherwise hée may haue against hym that soe did arest him a writte of false imprisonment Arrerages ARrerages are duities behinde vnpayed after the dayes and tymes in which they were due and ought to haue ben payed whether they be reÌ„t of a maner orany other thing reserued Assets ASsets is in ij sortes the one called Assets per discent the other Assets enter maynes Assets per discent is where a man is bound in an obligation and dieth seised of laÌ„ds in fée simple which discend to his heire but maketh no executors or if he make executors leaueth not sufficient goods to discharge this obligation theÌ„ this land shal be called assets that is to say enough or sufficient to pay the same det and by that meanes the heire shal bee charged as farre as the lande soe to hym dyscended wyll stretch But if he haue aliened before the obligation be put in suite hée is discharged Also when a man seysed of laÌ„ds in taile or in y e right of his wife alieneth the same witt warrantie and hath in value as much land in fée simple which discendeth to hys heire who is also heire in taile or heire to y e woman Nowe if the heire after the discease of his auncestour bring a writ of formedon or sur Cui in vita for the lande so aliened then hée shalbée barred by reason of the warranty y e land so disceÌ„ded which is as much in value as that that was sold so thereby hée hath receiued noe preiudice therefore this land is called Assets per disceÌ„t Assets ent ' mains is wheÌ„ a man indebted as before is said maketh executors leaueth to theÌ„ sufficient to pay or some coÌ„moditie or profit is coeÌ„ to theÌ„ in right of their testator this is said asâ—â—ts iÌ„ their haÌ„ds Assignee ASsignee is he to whoÌ„ a thing is appointed or assigned to be occupyed paied or don and is alwaies such a persoÌ„ which occupieth or hath y â— thing so assigned in his owne right for him selfe And of assignées there bée ii sorts NaÌ„ely assignee in déed and assignée in law Assignée in déed is when a leas is grauÌ„ted to a maÌ„ to his assignées or with out those words assignées y â— grantee giueth grauÌ„teth or felleth the same leas to an other he is his assignée in déede Assignée in law is euery executor named by y â— testator iÌ„ his testameÌ„t as if a leas be made to a maÌ„ to his assignées as is aforesaid he maketh his executours dieth w tout assignemeÌ„t of the leas to any other nowe y e executors shal haue y e saÌ„e leas because they are his assignées in law so it is in diuers other like cases Attainder ATtainder is a coÌ„uiction of any person of a cryme or fault whereof he was not coÌ„uiet before as if a man haue coÌ„mitted felony Treason or such like therof is endited arraigned fouÌ„d giltie hath iudgment then he is said to be attainted And this may be ii ways the one vpon apparance the other vpon default The attainder vppon apparance is by confession Battaile or verdict The attainder vppon default is by processe Auerment AUerment is where a man pleadeth a plée in abatement of the writ or barre of the accion which hée sayth hée is ready to proue as the court wil award this offer to proue his plée is called an auerment Auerpeny AUerpeny that is to bée quite of diuers suÌ„mes of money for the kinges auerages Auncien demesne AUncien demesne are certein tenures holden of those mannours that were in the haÌ„ds of saint Edward the confessour and the which hée made to be written in a booke called Domes day subtitulo regis and all the lands holden of the sayd manours be auncien demesne and the tenaunts shal not be impleded out of the said manor and if they bée they may shew the matter and abate the writte but if they aunswere to the writte and iudgment be geuen then the lands become franke see for euer Also the tenauntes in auncien demesne be free of tolle for al things coÌ„cerning their sustenaÌ„ce husbandry in auncien demesne for such lands they shall not be put or impaneled vpoÌ„ any enquest But all the lands in auncieÌ„ demesne that are in the Kynges hands be franke fée and pledable at the common lawe See more after in the title Sokmanes Auowry AUowry is where one taketh a distresse for rent or other thing the other sueth a repleuin theÌ„ he y t hath takeÌ„ it shal iustify in his plee for what cause he tooke it and so auowe the taking and y t is called his auowry Baile BAile is when a man is taken or arrested for felony suspicion of felony endited of felony or any such case so that hée is restrained of his libertie And beinge by lawe baileable offreth suerty to those that haue aucthoritie to baile him which suerties are bounde for him to the Quéenes vse in a certeine suÌ„me of money or body for body y t he shall appere before the Justices of gaole deliuery at y â— next sessioÌ„ c. TheÌ„ vpon the bonds of these suerties as is aforesayd he is bailed that is to say set at libertie vntyll the day appointed for his apparance Bailement BAilement is a deliuery of things whether it be of writings goods or stuffe to an other some times to be redeliuered backe to y â— bailor y t is to say to him y t so deliuered it
somtimes to the vse of y t baily y t is to say of him to whoÌ„ it is deliuered and soÌ„etimes also it is deliuered ouer to y â— third persoÌ„ This deliuery is called a bailement Bailife BAilife is an officer that belongeth to a manour to order the husbandry hath aucthoritie to paye quitrents issuing out of y e manor fell trées repaire houses make pales hedges distreine beastes vpoÌ„ the ground diuers such like This officer is hée whom the auncient saxoÌ„s called a Réeue for the name bailife was not then knowne amonge theÌ„ but came in with the Normans is called in lattin villicus Bakeberinde theefe BAkberinde Théefe is a théefe that is takeÌ„ with the manner that is to say hauing y â— found vpon him being folowed with the hue and crie which he hath stolleÌ„ whether it be mony linen woolleÌ„ or other stufe but it is moste properly sayed when he is taken caryinge those things y â— he hath stollen in a bundel or fardel vpoÌ„ his backe Bargaine and sale BArgaine and sale is when a recompence is giuen by both the parties to the bargain As if one bargaine sel his land to an other for mony Here the lande is a recoÌ„peÌ„ce to him for the money the money is a recoÌ„pence to the other for the lande this is a good contract and bargain and fée simple passeth notwithstaÌ„dinge he doth not saie to haue and to hold the land to him and to his heires And by such a bargaine and sale landes may passe without liuery of seysin if the bargayne and sale be by déede indented sealed and enrolled eyther in the county where y â— land lieth or in one of the Quéenes courtes of Recordes at Westminster within vjmonethes next after the date of the same writing endented accordinge to y â— statute in that béehalfe made in the 27. yeare of H. 8. ca. 16. Barre BArre is when the defendant in any action pledeth a ple which is a sufficient aunswere and that distroyeth the action of the pleintife for euer Bastarde BAstarde is hée that is borne of any woman not maried so y t his father is not knowen by the order of the law therfore he is called the childe of y â— people But by the lawe spiritual if one get a child vppon a woman which child is borne out of wedloke after he mary the same woman theÌ„ such a childe shal be said mulier not bastarde But by y â— law of EnglaÌ„d it is a bastard and for y t cause wheÌ„ such special bastardy is alleaged it shal be tryed by the countrey not by the bishop But general bastardy alleaged shal be tried by y â— certificat of y e Bishop And if a woman bée greate wyth childe by her husbande who dieth and she taketh an other husband after y e childe is borne this child shalbée sayed the childe of the first husbande But if shée were priuely wyth childe at the tyme of the death of her first husbaÌ„d then it shal be said y e child of y e secoÌ„d husband but enquire farther sée y e opinioÌ„ of Thorp 21. E. 3. 39. Also if a manne take a wyfe which is greate w e chylde by an other that was not her husbande after the chylde is borne w ein the espousels then he shal be saied the childe of the husbande though it were borne but one day after y e espousels solempnised Battaile BAttayle is an auncyent trial in our lawe which the defendaunt in an appeale of felony may choose that is to say to fight with the appellant for proofe whether he bée culpable of the felony or not which combate if it fal out soe wel on y e part of the defendant that he doe vanquish the appellant hée shal goe quite and barre him of his appel for euer But if one bée indicted of felonye and an appel is brought vppon the same indictment there the defendant shal not wage battayle Battaile also may be in a writ of right Bigamy BIgamy was a counterplea deuised at the Councel of Lions vppon mislike of second mariage to be obiected wheÌ„ the prisoner demaundeth the benefit of the Clergie to wit his booke as namely to say that hee which demaundeth the priuiledge of the clergy was maried to such a woman at such a place within such a diocesse that shee is dead and that he hath since maried an other woman within the same dioces or with in some other diocesse and so is Bigamus Or if he haue bin but once maried then to say that she whom he hath maried is or was a widow that is to say the left woman of such a one c. which thing shal be tried by the Bishop of y e diocesse where the mariages are alleged And béeinge soe certifyed by the Bishoppe the prisoner shall lose the benefite of the clergie But at this daye by force of the Act made in Anno 1. E. 6. cap. 12. this is nâ—e plea but that hee may haue his Clergye yet not wythstandinge Soe is Brooke titulo Clergie placito 20. to the same purpose And hereuppon if you bee desirous Brother Nicholas to sée what reasons they haue that perswade against second mariages reade amonge manye other Fraunches Petrarch of Remedies for both fortunes the first booke and lxxvi Dialogue intituled of seconde mariage which booke nowe of late our brother master Thomas Twyne hath very wel and w t good grace as they y â— can iudge doe say translated out of latine into english and moste aptly called it Phisicke against fortune Blodewit BLodewit that is to be quite of amercements for blodsheding what pleas are holden in your court you shall haue the Amercementes thereof coming because wit in english is Misericordia in latine Boote BOote is an old woord and signifyethe helpe succour ayde or aduauntage and is commonly ioyned with an other word whose significatioÌ„ it doth augemeÌ„t as these brighoot burghboote fireboote hedgboot plowboote diuers such like for whose significations looke in their proper titles Brode halpeny BRode halpeny in soÌ„e copies Bordehalpeny that is to be quite of a certein custome exacted for settinge vp of tables Brugbote BRugbote and in some copies Brigebote that is to be quite of giuinge aide to the repairinge of bridges Burghbote BUrghbote that is to be quite of giuinge ayde to make a borough Castel city or walles throne downe Burchbrech Burghbrech that is to bée quite of trespasses don in Citie or borough against the peace Burgh English BUrgh English or borow english is a custome in soÌ„e auncient borough that if a man haue issue diuers sonnes and dieth yet the yongest sonne onely shal enherit and haue al the landes tenementes that were his fathers whereof hée died seysed wythin the same burgh by dyscent as heire to his father by force of the custome of the same Burglary BUrglary is when one breaketh and entreth into y â— house of an
I will english as well as my smale skil in y ◠old french wil geue me leaue And thus it is These are the chiefe townes of the Cinque ports 1 Mastinge 2 Romney 3 Meth 4 Douer 5 Sandwich The members of the ports of Mastinge are these 1. Peuenese 2 Bolewareheth 3 Petite James 4 Bekesborne 5. Breneth 6 Rie 7 et Winchelse Some adde to these the Seashore in Sefford Hydeney and Northye The chiefe port of Hastinge with the mēbers aforesaid ought to finde to the kinge from yere to yere if neede bée vppon the sea twenty one ships That is to say the towne of Hastinge thrée ships Peuenese one shippe wole worcherye and Petite Ihāme one shippe Bekesburne one shippe Greneshe ij men with two armours with them of Hastinge The Towne of Rye fyue Shippes the Towne of Wynchelsce Tenne shippes The mēbres of y ◠port of Romney are 2. 1. Olde Romney and 2. Lyde Some adde to these Prormhell Oswardestone Denge Marreis Romney with the afore said members oweth to the kinge as is before said fiue shippes whereof Lyde oweth one ship The port of Heth with the member west Heth ought to finde fiue ships to the kinge as is aforesayde The members of the port of douer are these 1. Folkestone 2. Fauersham Sōe adde Meregate c. This part of Douer with the aforesaid members ought to find to the kinge 21. shippes that is to say Douer 19. ships Folkestone one shipe Fauersham one ship The members of the port of Sandwich are these 1. Stonor 2. Fordwich 3. Dale 4. Seire Sōe adde Reaculure This port of Sandwich with the memberz aforesayd ought to find in the kinges seruice as is before sayde fiue shippes Some lvii shippes When the king would haue his seruice of the aforesaid ships they shal haue xl daies sūmons they shal find to y e king in euery ship 20. men and the master wel armed and well appoynted to doe the kynges seruice And the shippes shal goe at the proper costes of the Cinque portes thither whether they shalbée summoned And when the shyppes are thither come they shall continue xv daies in the kinges seruice at the proper costes of the Cinque portes And after the 15. dayes are past they shalbée at the charges of the kinge if hee haue any thing for thē to doe The master of the ship shall take sixe pence a day the Constable sixe pence and euery of the other mariners thrée pence And it is to be knowē that the court of Shipwaye which is the chief court of y ◠Cinque ports where euery Maior of euerie port or 12. 10. 6. or 4. and the Maior of euerie port as they by letters of the warden of the Cinque ports haue byn sūmoned and as the port is greater or lesser without essoyne ought to come ought to bee sūmoned by the letters of the said warden to al the ports that ought to doe sute there And the sūmons ought to be vppon sute made to sūmon any comminalte to aunswere to any of any plée containing 40. dayes from the day of the receyte of the Letters of the sayed warden And the aforesayde Court ought to bée sūmoned chieefelye for Treason done agaynst the kynge or kynges for counterfaytynge of the kynges seale or of hys money for treasure founde vnder the ground For the kynges seruice denied or withholden for fals Judgement giuen by any cōmunaltie And no commoner to any plea against him brought shall aunswere but at the court aforesayd And pleas there had against any Baron of the Cinque portes beinge challenged by the Bailife of the same port of which the said Baron is ought to bée adiourned vnto the port wherof the same Baron is if it be not for trespas don agaynst the kynge because that the said Barōs haue conusance of all manner of pleas except pleas of the Crowne And when those Barons haue fayled to doo right The said warden at the complaynt of hym to whom they haue fayled to doe right shall goe to the same port to doe right as is contayned in the Charter Moreouer the aforesaied court ought not to bée holden from the feast of the natiuity of saynt Mary vntill the feast of saint Andrewe because of the martes of Germany Also when the Barōs of the Cinque ports are in the Kynges seruice vppon the Sea or at the kings summons or at the kinges commandement Furthermore it ought not to bée holden but one day And one Essoine onely yeth in the aforesayed Court in euery plea. O f sute no Essoigne lieth as is before sayde and therefore if the maior whoe béecause of sicknesse or other sodeine infirmitie cannot come thither an other may at that day keepe his place so notwithstandynge that returne bée made by hys Baylife Nor others principally ought to bée charged of any iudgement gyuen in the same Court but those names whoe by the Baylifes there haue byn returned Besides all this prouision of shippes men as is aforesayde I haue séene in an other recorde shortly written that euery shippe ought to haue a boy whych there is called a Gromet so y ◠in some the Cinque portes are charged with 57. ships 1197. men 57. boyes or Gromets Damage fesants DAmage fesauntes is when a straungers beasts are in an other mans ground wythout aucthoritie of the lawe or licence of the tenant of the grounde and there doe feede treade or otherwyse spoile the corne grasse woods or such lyke in which case the tenaunt whom they hurt may therefore there take distreigne impoūd them as wel if it be in y e night as in the day time But in other cases as for rent and seruices such like none may distreine in y e night season Danegelde DAnegelde that is to be quite of a certein custome which hath runne some tymes which the Danes did leuie in Englande This beganne first in kinge Etheldreds daies who beinge sore distressed by the continual inuasions of the Danes to purchase peace was cōpelled to charge his coūtrey and people wyth importable payements for hée first gaue them at v. seueral paies 113000 li. and afterwarde graūted thē 48000. li. yerely Deane and Chapter DEane chapter is a body spiritual corporate consisting of many able persons in lawe as namely the deane whoe is the chiefe and the prebendes and they together make the corporation And as this corporation may iointly purchase landes and tenements to the vse of their Church and successours Soe likewise euery of them seuerally may purchase to the vse of hym selfe his heires as wée dayly sée them doe most abundantly Declaration DEclaratiō is a shewing forth in writing of the griefe and complaynt of the demaundant or plaintife against the tenant or defendant wherein he supposeth to haue receyued wronge And thys declaratyon ought to be plaine certen both because it impeacheth the defendaunt or tenant also compelleth him to make aunswere
the lawe are effectually directed one thing only prouided by y ◠words of the lawe to the end y ◠althigs of like kind may be prouided by the same And soe when the words enact one thing theye enact all other thinges that are of lyke degree As the statute which ordeines that in an actyon of dette against executours hée that doth appere by distresse shall aunswere doth extende by Equitie to Administratours for hée of them that doth fyrst appere by distresse shal aunswere by equitie of the sayed act Because they are of lyke kinde Soe lykewise the statute of Glocester geues the actyon of wast and the payne thereof agaynst hym that holdes for life or yeres and by y e equitie of the same a mā shall haue an action of waste agaynst hym that holdes but for one yere or halfe yere and yet y t is without the words of y ◠statut for h◠that holds but for halfe a yeare or on yere doth not hold for yeares but y ◠is y e meaning the words y t enact y e one by equitie enact y ◠other Escape EScape is in two sorts that is to say voluntary necligent Uoluntary escape is when one doth arrest an other for felony or other crime after letteth him go where he wil this letting of him to go is a volūtary escape And if y ◠arrest of hī y ◠escaped were for felony thē y ◠shal be felony in him y e did suffer y ◠escape and if for treason then it shal be treason in him and if for trespas then trespas and so of other Negligent escape is whē one is arrested and after escapes against the will of him that did soe arrest him is not freshly pursued and taken before the pursuer loseth y e sight of him this shalbée said a negligent escape notwithstanding y t hee out of whose possession he escaped do take hym after he lost sight of him There is an escape also without arrest as if a murder be made in the day and the murderer be not taken then it is an escape for the which the towne where the murder was done shal be amerced Esples ESples is as it were y ◠seysin or poss of a thinge profit or cōmodity y ◠is to be takē As of a cōmō y ◠esplées is the taking of the grasse or comon by y ◠mouthes of the beastes y ◠cōmon there Of an aduowson the takynge of grosse tythes Of a wood the selling of wood of an orchard the selling of Aples or other fruit growing there of a mill in taking of tol is the esplees and of such like Essoine ESsoine is where an actyon is brought and the plaintife or defendāt may not wel appere at the day in court for one of y ◠v. causes vnder expressed thē he shalbée essoined to saue hys defaut whereuppon note well that there be v. maner of essoines that is to say essoyne de ouster le mere and that is by xl daies the second essoyne is de terra sancta that shal be by a yere a day these two shal bee layd in y ◠beginning of y e plée The iii. essoin is de male vener and that shalbée at cōmon dayes as the action requireth this is called y ◠cōmon essoin The iiii essoyne is de malo lecti that is onely in a writte of right and there vppon there shall a writte goe out of the Chauncerie directed to the shirife that he shal send iiii knightes to the tenaunt to sée the tenant if he bee sicke to géeue him a day after a yere and a day The v. essoyne is de seruice le roy and it lyeth in al accions except in Assyse of nouel disseisin writ of dower darein presētment in appel of murder but in this essoin it behoueth at the day to shew his warrāt or els it shall torne into a defaut if it be in a plee real or hée shall lose xx s. for the plaintifs iorney or more by the discretion of the Justices if it be in plee personal as it appereth by the statute of Glocester ca. Octauo Estoppel EStoppell is when one is concluded and forbidden in lawe to speake against his owne act or déede yea although it bée to say the truith And of estoppels there are a great many one for example is whē I. S. is bound in an obligation by the name of Thomas Stile or any other name and is after ward sued accordinge to y e same name put in the obligation that is to say Thomas Stile Nowe he shal not be receiued to say y ◠hee is misnamed but shal be driuen to aūswere accordinge to the name put in y e obligatiō y t is to say T. S. for peraduenture y t obligée did not know his name but by y ◠report onely of the obligor himselfe and in as much as he is y ◠same man y ◠was bound hee shal be estopped forbidden in law to say y ◠contrary against his owne déede for otherwise he might take aduauntage of hys owne wronge which the lawe wyl not suffer a man to doe Also if the daughter y t is onely heire to her father wil sue liuery with her Sister that is a bastard she shal not afterward be receiued to say y t her Sister is bastard insomuche that if her bastard sister take halfe y ◠lād w t her there is noe remedy by law Also if a manne seysed of landes in fée simple wyll take a lease for yeares of the same land of a straunger by déede indented this is an estoppel during y e terme of yeares And the lessée is thereby barred to say the trouth for the troth is that hée that lessed the land had nothynge in it at time of the lease made and that the fée simple was in hym that did take y e lease but this hée shall not bée receyued to say tyll after the yeares are determined because it appereth that hee hath an estate for yeares and it was his folly to take a lease of hys owne landes therefore shall thus bée punished for his folly Estraungers EStraungers are they that are not parties nor priuies to the leuyinge of a fine or making of a déede Estray EStray is where any beast or cattell is in any lordshippe and none knoweth y ◠owner therof then it shal be seised to the vse of the Quéene or of the Lord y ◠hath such estray by the Quéenes graunt or by prescription if the owner come make claime thereto within a yeare a day then hée shall haue it againe payinge for hys meate or els after the yere the propertie therof shal be to the Lorde so that the Lord make proclamatiō therof accordīg to the lawe in ii market townes Excōmunication EXcōmunicatiō is whē a man by iudgment in the spiritual court is accursed thē he is disabled to
y â— hundreth or in the court of his lord where essoine lyeth and that aswell in case of common sute as of plea. Moreouer they clayme by an especiall déede of kinge Henry the father of kinge Edwarde that of the tenements which are holden in Gauelkinde there shal no battayle bée ioyned nor graund assise taken by xii knightes as it is vsed in other places of y e Realme y t is to wit where the tenaunt demaundant hold by Gauelkind But in place of these graund assises let Juries be taken by xii men being tenaunts in Gauelkind so y â— four tenaÌ„ts of Gauelkind choose xii tenaunts of Gauelkynd to be Jurors And y t Charter of the king of this especialty is in the custody of Sir John of Norwood the day of S. Elphey in Caunterbury the yeare of king Edward y e sonne of king Henry the xxi These be the vsages of Gauelkind and of Gauelkindmen in Kent which were béefore the conquest and the CoÌ„quest and euer since till nowe The end of the customes Hauinge thus ended y e custoÌ„es as you sée Brother Nicholas there remayneth nowe to bée shewed what lands w tin this Countrey of Kent be of the nature of Gauelkind and what not First therefore it is to be vnderstanded y t all y â— lands w tin this Shire which be of auncieÌ„t Socage tenure as was said at the béegynnynge be also of the nature of Gauelkind And y â— lands holden by auncient tenure of knightes seruice be at the coÌ„mon lawe are not departible after the order of this custome except certen which béeing holden of old tyme by knyghtes seruice of the Archbishop of CauÌ„terbury are neuer the lesse departible as it may appere by y e booke 26. H. 8. 4. And that grewe by reason of a graunt made by kynge John to Hubert the Archbishoppe there the tenor of which is as followeth John by the grace of God Kyng of Englande â–ª Lorde of Ireland Duke of NormaÌ„dye of Aquitane and Earle of Angieu To all Archbyshoppes Bishops Abbots Earles Barons Justices Shirifes Gouernours and officers and al Bailifes and his faithful subiects gréeting Knowe yée y t wée haue graunted and by this our preseÌ„t Charter haue confirmed to our reuerend and déerely beloued father Hubert Archbishoppe of Caunterbury and hys successors for euer that it shall bée lawfull for them to conuert those laÌ„ds which menne of the fée of the Church of Caunterbury do hold in Gauelkind in to knightes fee. And y t y e same Bishops their successours haue the like power and libertie for euer ouer those men and their heires that shal hold those laÌ„ds so â—â—uerted into knights sée which the Archbishop hath his successors after him shall haue ouer other knights of y e sée of the Church of Caunterbury their heires And that those men and their heires haue the same al such libertie for euer which other knightes of the sée of the Church of Caunterbury and their heires haue Prouided alwayes y t neuerthelesse their accustomed rent of pence be holy payed out of their landes as before time their giftes auerages and other seruices which issued out of the same landes be conuerted into a reÌ„t of pence of like value And y â— y â— same rent be paied as y â— other reÌ„t of pence is Wherefore we wil straightly coÌ„maund y â— whatsoeuer the aforenamed Archbishop and his successours after him shall doe concerninge those landes which are to bée conuerted into knightes fée accordinge to the forme manner aboue written abide ratified and coÌ„firmed for euer Forbiddinge any person to presume against the déed of the Archbishoppe or hys successors in this behalf Witnesse E. Bishop of Ely S. of Bathe G. y â— sonne of Peter Earle of Essex WilliaÌ„ Marshall Earle of PeÌ„brooke Ro. of Harecourt Garine y â— soÌ„ne of Gerald Peter of Stoke Ric. of Reuers Rob. of Tateshal yeuen by y â— haÌ„d of S. Archdeacon vnto WilliaÌ„ at Rupem auriual y â— 4. day of May the third yeare of our raigne But for asmuch as it is disputable whether this Charter of Kynge John be of sufficieÌ„t vertue to change y e nature of Gauelkynde land or no and for that the certeintie of the landes so conuerted into knightes fée doth not any where appere saue onely that in the booke of Aide leuied in this shire Anno 20. E. 3. it is foure or fiue tymes noted that certeine lands in Kent bee holden in knightes seruice by the newe licence graunted to the Archbishoppe this shall suffise for that and it shall followe to be proued that al the landes of auncient tenure in knightes seruice be subiect to the ordinary course of discent at the common lawe And that may sufficiently be done both by the expresse wordes of a note in 9. H. 3. abridged by master Brooke ti Customes 57. and in master Fitzherb ti Prescription 63. And by the opinion of the Justices 26. H. 8. 4. as also by pleyne recital in the act of parliament made 31. H. 8. ca. 3. by which statute the possessioÌ„s of certen gentelmen there were deliuered from this customary discent and incorporated to the common lawe for amongest other thinges in that act it is saied That from thence forth such their landes shal be chaunged from the saied custome and shal discend as lands at the commoÌ„ lawe as other lands being in the said couÌ„ty of kent which neuer were holdeÌ„ by seruice of Socage but alwaies haue bene holden by knights seruice do discende By which words it is very euident that y â— makers of that estatute vnderstoode al lands holden by knights seruice to be of their proper nature discendable after y â— comoÌ„ lawe that Socage tenure was the onely subiect in which thys our custome of Gauelkinde discent preuailed helde place But when mencion is here made of Socage knightes fée it must alwayes be vnderstanded a tenure longe since and of auncyent tyme contynued and not nowe newely or lately created for so it may fal out otherwise then is alreadye reported As for example if land auncieÌ„tlye holden by knightes seruice coÌ„e to y â— Quéens hands whoe afterwarde giueth y e same out againe to a coÌ„on persoÌ„ to be holdeÌ„ of her manor of East Grene within Socage this lande not with standinge the alteration of y â— tenure remaineth disâ—â—dable to y â— eldest sonne only as it was before as also in like sort if lands of auncient Socage seruite come to y e Crowne and be deliuered out agayne to be holden either of the Quéene in Capite or by knightes seruice of any manor it ought to disceÌ„d according to y â— custde not w tstanding y t y e tenure be altered if this be true in the grauÌ„t of y e Quéene her selfe then much lesse may the Archbishope by a newe creation of tenure make to his tenants any alteratioÌ„ of this olde custome maner For as the
pleadinge is That the landes aforesayed are of the tenure and nature of Gauelkynde euen so the truith is that the present tenure onely guideth not the dyscent but that the tenure and the nature together doe gouerne it And therefore as on the one side the custome cannot attache or take holde of that which was not béefore in nature subiect to the custome that is to saye accustomably departed So on the other syde the practise of the custome longe time continued may not bee interrupted by a bare alteration of the tenure as it was holden by the Justices Annd 4. et 5. Phi et Mary as Judge Dalison hath left reported And also as it appereth by the booke 26. H. 8. 4. where it is saied that if a man seysed of Gauelkinde land holden in Socage make a gift in taile and create a tenure in knights seruice that yet this lande must descende after the custome it did before the change of the tenure Moreouer as y â— change of the tenure cannot prenaile against thys custome Soe neyther the continuance of a contrarie vsage may alter this prescription For it is holden 16. E. 3. in Fitz. ti Prescription 52. that albeit the eldest sonne only hath and that for many discents together entred into Gauelkind laÌ„d and occupied it w tout any coÌ„tradiction of the yonger brothers that yet the lande remaineth partible betwene them when soeuer they will put to their clayme Agaynst which assertion y â— which is said 10. H. 3. in Fitzh titulo Prescription 64. namely of the issue taken thus Whether the lande were parted or no is not greatly forceable For al though it be foe that the lande were neuer parted in déede yet if it remayne partible in nature it may bee parted whensouer occasion shal bée ministred And therfore euen in the fourme of pleadinge vsed at this day That the land alwaies c. was partible and parted it is playnelie taken that the worde partible onely is of substaunce and that the worde parted is but a worde of forme and not material or trauersable at al yea so inseperable is thys custome from the lande in which it obtaineth that a contrarye dyscent contynued in the case of the Crowne it selfe cannot hinder but that after such tyme as the land shall resorte agayne to a common personne the fourmer olde custome shall gouerne it As if landes of Gauelkind nature come to the quéens haÌ„ds by purchase or by Eschete as holden of her manor of Dale nowe after her death al her sonnes shall inherite and deuide them But if they come to her by forfaiture in treason or by gift in parliament soe y â— her grace is seised of theÌ„ in right of the crowne then her eldest sonne only which shalbée kinge after her shall enioye them in which case although those laÌ„ds which the eldest sonne beinge kinge did possesse doe come to his eldest sonne after him beinge kinge also and soe from one to an other by sundrye discentes yet the oppinion of Syr Anthonye Browne was 7. Elizabeth that if at any time after the same landes be grannted to a common person they shall reuolt to their former nature of Gauelkynde and be partible amongst his heires males notwithstanding that they haue runne a contrary course in dyuers the discentes of the kings before But much lesse may the vnity of possession in the Lorde frustrate the custome of Gauelkind discent as it may appere 14. H. 4. in y â— loÌ„ge Recordare abridged by master Brooke tit Auowry 46. and tit Customes 19. Nowe followeth to bée spoken howe farre this custome extendeth it selfe within this our Countrey of Kent c. It is commonly taken that the custome of Gauelkynde is generall and spreadeth it selfe throughout the whole Shire into al lands subiect by auncient tenure vnto the same such places only excepted where it is altered by act of parliament And therefore in 5. E. 4. 18. and 14. H 4. 8. it is said that the custome of Gauelkynde is as it were a common lawe in Kent And the booke 22. E. 4. 19. affirmeth that in demaunding Gauelkind land a manne shall not néede to prescribe in certeine and to shewe that the Towne Borough or Citie where the laÌ„ds bée is an Auncyent Towne Borough or Cytie and that the custome hath byn there tyme out of mynde that the landes wythin the same Towne Borough or Citie should discend to all the heires males c. But that is sufficyentlye inough to shewe the Custome at large and to say that the land lieth in Kent and that all the landes there bée of the nature of Gauelkynd For a writ of partition of lands in Gauelkynde sayth M. Littleton shall bée as generall as if the lands were at the common lawe although the declaratyon ought specyally to contayne mencion of the Custome of the Countrey Thys vnyuersalytie consydered and also the strayte bonde whereby the custome is so inseperably knit to the land as in maner nothinge but an act of parliament canne clerely disseuer them it followeth that no place Citie Towne or Borough within this shire can bée exempt from this custome although the same hath not at any tyme byn there put in vre no more then the Eldest sonne in the case before may for the like reason prescribe agaynst his youÌ„ger Bretheren c. Thus much béeyng spoken touchynge the name tenure nature generalty and order of Gauelkynde it shall nowe bee shewed of what quality the rents remaynders actyons and such other thinges of the which some bâ—e issuing out of these laÌ„ds some bée annexed vnto them and some bée raysed by reason of them shalbée And of theÌ„ some shal ensue the nature of the land and other some shal kéepe y â— same course that common lawe hath appointed And therfore if a rent be graunted in fée out of Gauelkynde land it shal discend to all the males as the land it selfe shal do as appereth in 14. H. 8. 5. 26. H. 8. 4. 4. E. 3. But if ii iointenantes of land in Gauelkynde grant a rent charge out of that land to I. S. to his heires And I. S. dieth hauinge issue ii sonnes this reÌ„t shal not disceÌ„d to both y â— sonnes of I. S. but to the heire at the common law because that the custome is in suspence during the ioynture by the opinion of the right worshipfull Christopher Yeluerton Esquire at hys readyng in Grayes Inne in lent An. 1573. So if a tenauncy bée of Gauelkynde nature yet the rent seruyce by which it is holden may discend according to the common lawe as Ald ' Chart ' in 7. E. 3. were of opinion If a remainder of Gauelkind land bée tayled to the heires males they altogether shall inherit as Fitzherbert Norwich thought 26. H. 8. 4. But that is to bée vnderstoode of a discent onely for if landes of Gauelkynde nature be leassed for life the Remaynder to the ryght heires of John Style which hath issue
fower sonnes and dieth and after the lessée for lyfe dyeth nowe the eldest sonne onely of I. Stile shall haue thys land for hée is right heire and that is a good name of purchase 37. H. 8. in master Brooke ti Done et Remaynder 42. But if the landes had byn gyuen to John Stile for lyfe the remaynder to hys next heire male thys had byn an estate taile in John Stile him selfe and then the lande should haue discended to al his sonnes in so much as in that case y e wordes next heire male be not a name of purchase Howbeit it was greatly doubted 3. 4. Phil. et Mariae as Justice Dalison reporteth if a remainder bée deuised by testament to the next heire male whether in that case the eldest brother onely shal haue it in so much as in the vnderstandinge of the lawe whych is a iudge ouer al customes he is the next heire male and therefore inquire of it As touching vouchers it appeareth 11. E. 3. that al the heires in Gauelkynd shal be vouched for the warraunty of their Auncester and not the eldest onely But the opinion of Master Littleton li. 3. cap. 13. and of the Iustices 22. E. 4. is clere y t the eldeâ—â— sonne onely shal be rebutted or barred by the warranty of the auncestour to be short the eldest sonne onely shal enter for the breache of a condition But the rest of the brethren shalbée ioyned with hym in suinge a writte of Attaynt to refourme a false verdict or Errour to reuerse an erronious iugement And they al shal be charged for the debt of their auncestour if so be y t they al haue assets in their handes But if the eldest onely haue assets remayninge and the residue haue aliened their partes then he onlye shal be charged after the mind of the booke 11. E. 3. c. And thus much for this part shal suffice Nowe a woorde or ij of other thinges confusely yet apertaininge to this matter notwythdinge not soe necessarie for your purpose to bée knowen as those aforesayde It appereth in a written report at large of 16. Edwardi 2. which is also partlye abridged by master Fitzherbert titulo Prescription that it was tryed by verdicte that noe manne ought to haue common in Landes of Gauelkinde howbeit the contrarye is well knowen at this day that in many places y e same booke saith y t the vsage of Gauelkinde is that a man may lawfullye inchase or driue out into the high waye to their aduenture the beastes of any other personne that hée shall fynde doynge dammage in his lande and y t he is not compellable to impounde them which thing is practised at this day The parlyament 15. Henrici sexti cap 3. mindinge to amplifye the priuiledges of Gauelkynde graunted to the tenauntes of that lande exemption in Attaints in such sort as the inhabitaunts of auncyent demeane and of the fiue portes before had But within thrée yeares after vppon complaynt of some of the Countrey which enfourmed the Parlyament house that there was not in the whole Shire thirtye or fortye personnes that holde to the value of xx pounde lande out of Gauelkinde who in default of others and by reason of that exemption were continuallye molested by returnes in Attaintes that act was vtterly repealed The statute 14. H. 8. cap. 6. gyueth libertye to euery manne hauing highwaie through hys lande in the welde that is worne déepe and incommodious for passage to lay out another waye in ome such other place of hys lande as shalbée thought méete by the vyewe of two Justyces of the peace and twelue other men of wysdome and discretion The general law made 35. H. 8. 17. for the preseruation of Copeises woodes thorough out the Realme maketh plaine exception of all woodes within this wealde vnlesse it be of such as bée common c. And here an ende of thys matter sauinge that I wil make master Litteltons annswere to such as happelye wil demaunde what reason thys custome of gauelkinde discent hath thus to deuyde lande a monge al the males coÌ„trary to the manner of the whole Realme béesides The yonger sonns sayth he be as good gen telmen as the elder and they beinge a like déere to their common auncestour from whom they claime haue so much the more néede of their freÌ„ds helpe as thorowe their minority they be lesse able then the elder Brother to helpe theÌ„selues c. Gelde GElde that is to bee quite of seruile customes which were woÌ„t to be geeuen and are yet giuen as hornegelde and such like Grithbrech GRithbrech that is the kinges peace broken because Grith in English is pax in latin Hangwite HAngwite that is to be quite of a théefe or relon haÌ„ged without iugement or escaped out of your custody Hariot HAriot is in ii sortes the one hariot Custome the other haryot seruice Hariot seruice some fay is alwaies expressed in a mans graunt or déede that hée holdeth by such seruyce to pay hariot at the time of his death and thys hariot is payable after y e death of the tenaunt in fée simsimple Hariot Custome is where hariotes haue byn payed tyme out of mynde by custome And thys may bée after the death of tenant for lyfe c. But to speake therof generally Hariot is the best beast whether it be horse Oxe or Cowe that the tenaunt had at the tyme of his death And may bée either seysed or a distresse taken for it whether it be hariot seruyce or hariot custome to the Lordes vse of whom the tenaunt held by hys Bailife or other officer béelonginge to hys manour But of right the Lord nor hys officer should not take hariot before it bée presented at the next court holden that the tenant is dead and that such a beast is due to the Lord for his hariot Haybote or Hedgebote HAybote or hedgebote is necessarie stuffe to make and mend hedges which lessée for yeares or for lyfe of common right may take vpon the ground to him leased although it bée not expressed in his lease and although it bée a lease by woordes without wrytinge Haybote also may bée takeÌ„ for necessary stuffe to make Rakes forkes and such like instrumeÌ„ts wherewith men vse in sommer to tedde make hay and so a lessée for yeares tooke it it was allowed him by hys lessor the rather as I suppose for that such instruments are commonly made of slender vnder wood which by the common lawe lessee for yeres may cut and take as is aforesaid Hidage HIdage that is to bée quit if the king shal taxe al the land by hides Note that a hyde of land is a whole ploweland And this kynde of taxinge by hides was much vsed in old tyme as well for prouision of armour as paymentes of money that chefely in kinge Etheldredes daies a kinge in thys Countrey before y e conquest who in the yeare of Christ 1006. when as the Danes landed
hâ—th a â—â—mture made c. and therefore demaunde iudgement of that action or iugement if she shal bee also endowed or any such lyke plea c. and this was the oppinion of y â— right worshipful master Brograue at his reading in Graies June in SoÌ„mer Anno 1576. 18. Eliz. vppon a braunch of the stat made An. 27. H. 8. c. 10. coÌ„cerning iointures dowers And by him of those things whereof a woman may bée endowed she may haue ioynture as of mines vesturam terrâ— woodes Townes Iles meadowes and such like Also of an aduowson of a reuersion depending vpoÌ„ an estate for life of a windmil a high chamber a rectorie and such other and they are called tenemeÌ„ts Also of a villen for hée is an heredytament of all these profet may come to the woman But of those thinges whereof noe profet will coÌ„e but rather a charge a ioynture cannot be made Theft THeft is a deceiptfull taking away of an other mans goods but not from his parson with a minde to steale them a gaynst hys will whose goods they were And theft is in two sorts y e one so called simplie the other pety or little theft The first is where the thynge stollen exceedeth the value of xij d. and y â— is felony The other which is called littel or pâ—tiet theft is where the thing stollen doth not excede y e value of xij d. and that is no felony Lastage LAstage that is to bée quite of a certeine custome exacted in faires any markets for caryinge of thinges where a man will Lessor and lessee LEssor is he that lesseth landes or tenementes to an other for terme of life yeres or at wil and hee to whome the lease is made is called lessee Leuant couchant LEuant Couchant is sayde when the beastes or Cattell of a straunger are come into an other mans ground there haue remayned a certen good space of time so longe that they haue wel fedde also rested them selues Wager of lawe WAger of lawe is when an accion is brought against one w tout especialty she wed or other matter of recorde as an accion of debt vpoÌ„ contract or detinue then the defendaÌ„t may wage his lawe that is to say swere vppon a booke and certaine persons wyth him that hée oweth nothing to the playntife in manner and fourme as hée hath declared But in an action of debt vppon a lease for terme of yeres or vpon the arrerages of accompt before auditors assigned a maÌ„ shal not wage his lawe And wheÌ„ one shal wage his lawe hée shal bring with him vi viii or xii of his neighbours as the court shall assigne hym to swere with him And if at that day assigne he faile of his law then hée shal be condemned Liuery of seysin LIuery of seysin is a ceremony vsed in conueyance of landes or tenemeÌ„ts where an estate in fée simple fée taile or a fréehold shal passe and it is a testimonial of the willing departing from all that which he who makes the liuerie hath in the thinge whereof liuerie is made And the receyuinge of the liuery is a wyllyng acceptance by the other partie of all that whereof the other hath dismissed him selfe And was inuented as an open and notorious thing by meanes wherof the common people might haue knowledge of the passinge or alteration of estates from manne to manne that thereby they might bée the better able to trie in whoÌ„ the right and possession of landes and tenements were if they should be impanelled in Juries or otherwyse haue to doe concernyng the same The common maner of deliuery of seysin is after this sort done If it bée in the open feelde where is no building or house then one that can read taketh the writinge in his hand if the estate shal pas by déed and declareth to the staÌ„ders by the cause of their méetyng there together c. and then openly readeth the deed in English and after that it is sealed the partie who is to depart from the ground taketh the déede in his handes together with a clodde of the earth a twigge or bowe if any there be and all this hée delyuereth to the other partie in the name of possession or seysin according to the forme effect of the déed which before them was there reade But if there bée a dwellynge house or buildinge vpon the land then thys is done there at the doore of the same none béeyng left at that tyme wythin the house and y â— partie deliuereth all the aforesaid together wyth the rynge of the doore in the name of seysin or possession hée that receiueth the libertie entreth in first alone and shutteth to the doore and presently openeth it agayne and letteth them in c. If it be of a house whereto is noe land or ground the liuerye is made and poss taken by the deliuerie of y â— ringe of the doore déed onely And where it is without déed either of landes or tenementes there the partie declareth by word of mouth béefore wytnesse the estate that hée meaneth to depart with and then deliuereth seysin or possession in maner as is before sayâ—e and so the land or tenement doth passe as well where there is no déede as by déede and that by force of the lyuerie of seysin It was agreed in Grayes Inne by the right warshipful master Snagge at his readyng there in SoÌ„mer an 1574 that if a feoffour deliuer the viewe of the land in name of seysin that it is good because that hée hath a possessyon in him selfe But otherwyse yt is of an atturney for hee must goe to the lande and take possession him selfe béefore that he can gyue possession to an other accordinge to the words of hys letter c. And where liuerie of seysin is by viewe if the feoffée doe not enter after c. nothynge passeth for hée ought to enter in déede Lotherwite LOtherwite that is y â— you may take ameÌ„des of him which doth defile your bondwoman without your licence Mahim or maim MAhim is where any meÌ„ber is hurt or takeÌ„ away whereby y e party so hurt is made vnperfect to fight As if a bone bée taken out of the hedde or a bone bée broken in any other part of the body or a foote or hand or finger or ioynt of a foote or any member bée cut or by some wound the sinewes bée made to shrinke or other member or the fingers made crooked or if an eye bée put out or the foretéeth broken or any other thinge hurt in a mannes body by meanes whereof hee is made the lesse able to defend him selfe But the cuttinge off of an eare or nose or breaking of the hinder téeth or such like is no may â–ª him because it is rather a deformity of y e body theÌ„ diminishing of strength And if the Justyces stand in doubt whether the hurt be a maihim or not they vse and wil of their
great discretiō take the helpe and opinion of some skilful Surgeon to consider thereof before they determine vpon the case Mainprise MAinprise is when a mā is arrested by capi as then the Judges may deliuer his bodie to certeine menne for to keepe and to bringe him before them at a certaine daye and these be called mainpernours and if the partye appeare not at the daye assigned the mainpernoures shal be amerced Mannour MAnnour is a thinge compounde of diuers thinges as of a house lande arrable pasture meadowe woode rent auowson court baron and such like make a manor this ought to be by longe contynuaunce of time to the contrary◠whereof mans memory cannot tel for at this day a manor cānot be made because a court baron cānot nowe be made and a manour cannot be w tout a court baron suters or fréeholders two at the least for if all the fréeholdes except one escheate to the lord or if he purchase al except one there his manor is gone for that it cannot bée a mannor without a court Baron as is aforesaid and a court baron cannot bée holden but before suters not before one suter therfore where but one fréehold or fréeholder is there cannot bée a mannour Manumission MAnumission is in ii sortes the one is a manumission expressed the other a manumissiō implyed or secreat Manumission expressed is when the Lord maketh a déed to his villen to enfraunches hym by this word Manumittere which is as much to say as to let one goe out of an other mans hands or power The manner of manumittinge or infraunchising in old time most vsually was thus The Lorde in presence of hys neyghbours toke the bonde manne by the heade saying I wil that this manne be frée and therewyth shewed him forwarde out of hys handes and by this hée was frée without anye more a doe Manumissyon implyed wythout this woode Manumittere is when the lorde maketh an obligation to his villē to pay him money at a certein daye or suith him wher he might enter without sute or graunteth vnto his vyllen an annitie or lesseth lande to him by déede for yeres or for life in dyuers such like cases y e villen thereby is made frée Maximes MAximes be the foundations of the lawe the conclusions of reason and are causes efficient certein vniuersall propositions soe sure and perfect that they may not bée at any time impeached or impugned but ought alwaies to bée obserued and holden as strong principalles and aucthorities of thēselues although they cannot be proued by force of argument or demonstratiōs logicall but are knowen by enduction by y e way of sence memory As for example it is a maxime that if a man haue issue 2. sonnes by diuers women and the one of them purchase landes in fée and dieth wythout issue the other brother shall neuer be hys heyre c. Also it is an othermaxime that lāds shal discēd frō the father to y e sōne ▪ but not frō the sōne to y e father for that is an ascention c. diuers such like there be Maynour MAynour is when a théefe hath stolne and is followed with hue and cry and taken hauing y t founde about him which he stole that is called the maynour And so we cōmonly vse to saye when we finde one doing of an vnlawfull act that wée tooke him with the maynour or maner Misprision MIsprision is when on knoweth that an other hath committed treason or felony and will not discouer him to the Q. or to her councell or to any magistrat but doth conceale the same A chapleine had fixed an olde seale of a patent to a newe patent of non residence and this was holden to bée misprision of treason onely and noe counterfeiting of the Q. seale Also if a man knowe mony to be counterfet bringe the same out of Irelād hither into England and vtter it in payment this is but mysprision of treason and no treason soe it is in diuers such like cases And in al cases of misprision of treason y e partie offendor shall forfayt his goods for euer and y ◠profets of his landes for terme of his life and his body to prison at the Q. pleasure And for misprision of felonie or trespas y e offēdour shalbée committed to prison vntill hée haue founde suerties or pledges for his fine which shal be assessed by y e ducretion of y t Justices before whom he was conuict And note that in euerie treason or felonye is included misprision and where any hath cōmitted treason or felony the Q. may cause y e sāe to be indited and arramed but of misprision onely if she will Shewinge of deedes or Recordes SHewinge of déedes or Recordes is as if for example an actyon of dette be brought against one vppon an obligation or by Executors c. there after that the pleyntife hath declared he ought to shewe his obligatiō or y ◠executour the testamēt to the court and soe it is of Recordes And the diuersitye béetwene shewing of deeds or Recordes hering of déeds or records is thus he y ◠pleades the deede or record or declares vppon it to him it doth appertaine to shewe the same And the other agaynst whom such déede or record is pleaded or declared and is thereby to bée charged may demaunde hearing of the same déed or record which his aduersarie brigeth or pleadeth against him Mortgage or Morgage MOrtgage or Morgage is whē a mā maketh a feoffement to another on such condition that if the feoffour pay to the feoffée at a certaine day xl li. of money that then the feoffour may reenter c. In thys case the feffée is called tenaunt in morgage And as a mā may make a feoffement in fée in morgage so hée may make a gift in tayle or a lease for terme of life or for term of yeares in morgage And it seemeth that the cause why it is called morgage is for that it standeth in doubt whether the feoffor will pay the money at the day appointed or not and if hée fayle to pay then y ◠land which hée layed in gage vppon condition of paymēt of y e money is gone from him for euer so dead to him vpō cōditiō But if he pay y ◠money then is the gage dead as to y ◠tenāt y t is to say the feoffée for this cause it is called in latin mortuum vadium as master Littleton sayth or rather mortuum vas as I thinke Mortmaine MOrtmaine was whē lands were geuen to a house of religion or to a cōpany which be corporat by y e kings graūt then the land is cōe into mortmain that is to say in English a dead hand and the kynge or the lord of whō y e lād to holden may enter into thē Mulier MUlier is a word vsed in our lawe but howe aptly I cannot tell nor doe wel knowe howe
holdeth ouer of y â— lorde aboue him As if y â— tenaÌ„t hold of y â— mesne by homage fealty xx s. of reÌ„t yerely y e mesne holdeth ouer of y e lord aboue by homage fealty xx s. rent also this is called owelty of seruices Hearing of Recordes and deedes c. HEaringe of Records déeds is if for example an actioÌ„ of det be brought against a man vppon an obligation and the defendant appéeres to the action and then praieth y t he may heare the obligatioÌ„ where with the plaintife chargeth him Soe it is when as executors bringe an action ofdet and the defendant demaundeth to heare the testament vpon this demaund it shal be read vnto the desendaunt But if it be in an other â—erme or after y â— the defendant hath imparled then hée shal not heare it And soe as is sayed of déedes is to be vnderstoode of recordes that are alleged against him Pape PApe is an auncyent name falsely arrogated or proudly vsurped by y e Bishop of the only Citye of Roome in Italie and is commonlye englished the Pope a name truely much frequented in our auncyent yere bookes specially in the times of those kings who to much abaÌ„doning their emperiall aucthoritie and abasinge themselues far beneath their estate were not a shamed to suffer an alyen outlandish Bishop that dwelt aboue fiftéene huÌ„dred miles from them to bee soueraigne ouer them in their owne dominions and to take froÌ„ them not onely the disposition of certen small trisles of none accompt but also the nomination of Archbishoppes Bishops Abbots Deanes prouosts appropriations of benefices preseÌ„taâ— ' to personages vicarages generally of al spirituall persons to their preferments sometymes by lapse and sometimes otherwise whereby the kings princely prerogatiue was very much abridged w tin their owne Realmes Partition PArtityon is à deuyding of laÌ„ds disceÌ„ded by the coÌ„mon law or by custome amoÌ„g coheires or parceners wher there be ii at y â— least whether they bée sonnes daughters sisters auÌ„tes or otherwyse of hyn to the auncestour from whom the laÌ„d discended to theÌ„ And this particion is made iiij wayes for the most part wherof thrée are at pleasure and by agreement among them the fourth is by compulsion One particyon by agréement is when they them selues deuide the lande equally into so many partes as there bée of them coparceners each to choose one share or part the eldest first so y â— one after other as they bée of age except y â— the eldest by consent make the particion then the choise belongeth to y â— next and soe to the eldest last accordynge as it is saied Whoe so maketh the partition the other must haue the choyse An other partition by agreement is wheÌ„ they choose certen of their frends to make diuision for them The third partition by agréement is by drawing of lots thus first to deuide the land into so many parts as there bée parceners then to writ euery part seuerally in a little scrolle or peece of paper or parchment and to put the same scrolles vp close into a hat cap or other such like thing and then each parcener one after an other as they bée of age to drawe out thereof one peece or scrolle wherein is written a part of the land whych by thys drawinge is nowe seuerally allotted vnto them in fée simple The fowerth partition which is by compulsion is when one or some of the coparceners would haue partition and other some wil not agrée there to TheÌ„ they y â— so would haue partitioÌ„ may bring a writ de partitione facicienda against y â— others that would not make partition by vertue whereof they shalbée compelled to depart c. Wée in Kent Brother Nicholas where the landes are of Gauelkynd nature cal at this day our partition Shiftinge euen y â— very same woord that the Saxons vsed namely Scystan which signifieth to make partitioÌ„ betweene coheires and to assigne to each of them their portion in latyn it is called Herciscere Parties PArties to a fine or déede are those that leuie the same fine and also they to whom the fine is leuied And they that make a déede of feoffement and they to whoÌ„ it is made are called parties to the déede and so in any other like cases Patron PAtron is hée that hath a parsonage vicarage frée chappel or such like spiritual promotion béelongynge to his maner and may or ought to gyue the same beneuÌ„ce when and as often as it falleth voyd And thys beynge patron or patronage had beginninge for the most part by one of these three wayes namely either by reason of the foundation for that the patron or hys auncestours or those froÌ„ whom he claimes were sounders oâ— builders of the Church or by reason of Dotation for y â— they did endowe or giue iaÌ„ds to the same for mayntenaunce thereof or els by reason of the ground because the Church was set or builded vpon their soyle or ground many times by reason of them al three Perquisites PErquisites are aduaÌ„tages and profits that coÌ„e to a manner by casualtie and not yearely as Escheates Heriots Reliefes waifes straies forfaytures amercementes in Courtes wardes mariages goods and landes purchased by villaines of y e same manor and diuers such like thinges that are not certen but happeÌ„ by chaÌ„ce sometimes more often then at other times Plaintife PLayntife is hée that sueth or complaineth in an ass or in an action personal as in an action of det trespas disceit detinue and such other Pledinge PLeding is y â— which coÌ„meth after y â— couÌ„t namely y â— which is contayned in the barre replication and reioynder and not that contayned in the count it selfe and therefore defauts in the matter of the Count are not comprised within mispleading or insufficient pleading nor are remedied by y t statute of Jeofailes But onely that mispleading or insufficient pleading committed in the barre replication and reioynder are there prouided for Pound POundes are in two sortes the one pounds open the other poundes close Pounde open is euery place wherein a dystresse is put whether it bée coÌ„mon pound such as are in euery Towne or lordship or whether it be backside Court yard pasture or els whatsoeuer where the owner of the distresse may come to geue them meat and drinke without offence for their beinge there or his comming thither Pounde Close is such a place where the owner of the distresse may not come to giue them meat and drinke wythout offence as in a close house or whatsoeuer els place Possession POssession is saied two wayes eyther actuall possession or possession in lawe Actual possessioÌ„ is wheÌ„ a manne entreth in déed into lands or tenements to him disceÌ„ded or otherwise Possession in lawe is wheÌ„ laÌ„ds or tenemeÌ„ts are discended to a man and hee hath not as yet really actually and in déede entred into them And it is called possession in
in liberum maritagium bée al vtterly voyd so that y â— tenure shalbée intended after the tenure in the common taile And note wel that the gift in franke mariage hath a condition annexed to it notwithstanding that it be not openly declared in the déede of the gift as it appereth by the statut of westinÌ„ second ca. primo de Donis coÌ„dicionalibus And note wel that a manne shall not géeue landes nor tenementes in frankemariage but where the womanne is priuie of bloud to the donour â— else the mâ—â—â—e nor the womaÌ„ shal haue no other estate by the feoffement but for term of life Frank almoigne To holde in franke almoigne is to hold landes or tenements for to serue Godde and holye Church to endow without doynge any other manner of seruice And note well that in thys case the donor is mosne and oughtto acquite him fréely against the chiefe Lorde and also they that holde in frankealmoigne shall doe no fealtie but they that hold in franke mariage shall do fealtie Elegit To hold by Elegit is where a manne hath recouered debt or dammage by a writ against another or by confessyon or in other manner hée shal haue within the yere against hym a writte Judicial called Elegit to haue execution of the halfe of al his laÌ„ds and cattels except oxen and bestes of the plowe tyll the debt or dammages hée vtterly leuied or payed to him duringe the terme hée is tenant by Elegit And note wel if hee bée put out within y e terme he shall haue assyse of nouell disseysin and after a redisseisin if néede be and thys is géeuen by the statut of Westminster 2. ca. 18. and also by the equity of the same statute he that hath his estate if hée bée put out shall haue assise and a redisseisin if néede be and also if hée make his executours and dye and his executours enter and after be put out they shall haue by the equity of the same statute such action as hée hym selfe before said but if he be put out after make hys executours and dye his executours may enter and if they be stopped of their entre they shall haue a writte of trespas vpon their matter and case And note well if hée do wast in al the lande or parcell the other shall haue against him immediatly a writte Judicyall out of the first recorde called a venire facias ad computanduÌ„ by which it shalbée inquired if hée haue leuied all the money or parcel and if he haue not leuied theÌ„ money then it shal be in quired to how much the wast amounteth and if the wast amount but to parcel then asmuch of y e mony as y e wast amouÌ„teth shalbée abridged of y â— foresaid money which was to be leuied But if he haue done more wast then the foresaid summe of money which was to be leuied amounteth the other shall bée discharged by and by of all the said money and shal recouer the land and for the superfluity of y â— wa st made aboue that that amounteth to the sayde summe hée shal recouer his daÌ„mages single and the same lawe is of hys executours also of him that hath his estate And note that if hée alien in fée or for terme of life or in tayle all or parcell of the laÌ„d which he holdeth by Elegit if y â— alienation bée made w tin the terme or after hée which hath right shalhaue against hi one assise of nouel disâ—cisine And they both must be put in the auâ—se the alienor and the alienée and notwythstandinge that the alienour die preseÌ„tly yet he which hath right shal haue an assise against the alienée alone as if the alienour had bene a playne tenant for terme of yeres and that is by the equitie of the statut of W. 2. cap. 25. for that that he hath not but a chattel in effect and the same law is of his executours and of him which hath hys estate as is aforesaid And note wel that in an Elegit if the shirife retorne y â— he had nothinge y â— day of there conusance made but y â— he purchased lands after the tyme then the partye plaintife shal haue a newe writto haue execution thereof the same lawe is of a statute merchaunt And note wel that after a fiery facias a maÌ„ may haue the Elegit but not contrary wise for soe much y â— the Elegit is of more higher nature then thefieri facias And note wel that if a man recouer by a writte of debt and sueth a fieri facias and the shirife retourne that the party hath nothig where of hee maye make grée with the party then the plaintife shal haue a capi as sicut alias and a pluries and if the shirife retourne at the capias mitto vobis corpus and hée haue nothinge whereof hée may make grée to y â— party he shalbée sent to the prison of the Fléet there shal abide tyll hée haue made agrement w t the party if y â— shirife retourne non est inuentus then there shall goe forth an exigent against hym And note wel y â— in a writ of debt brought against a personne of holy church which hath nothinge of lay fée y â— shirife retourneth y â— he hath nought by which he may be summo ned then shall the plaintife sue a writ to the Bishop that hée make hys clerke to come and the bishop shal make hym â—o come by sequestration of y â— church And note wel y â— if a man bringe a writ of debt recouer make his executors dieth they shal haue executioÌ„ not w tstanding y â— it be within y â— yere by a fieri facias Statut merchant 6 To holde by Statute merchaunt is where a man knowlegeth to pay certayne money to another at a certaine day before the maior bailife or other wardeÌ„ of any town y t hath power to make execution of the same statute if y e obligée pay not y â— debt at y e day nothing of his goods lands or tenementes may be found within the warde of the maior or warden béefore saied but in other places without theÌ„ y e reconisée shal sue the reconisaunce obligatioÌ„ w t a certification to the chauncery vnder the kinges seale he shal haue out of the chauÌ„ cery a capias to y e shirife of y e couÌ„ty where he is to take him to put hym in prison if hée bée not a clarke til hée bée not a clarke til hée haue made gréement of y e debt And one quarter of the yere after that that hée shalbée taken hée shall haue his laÌ„d deliuered to himselfe to make gree to y e party of the debt he may selit while he is in prison and his sale shal be good law ful And if he do not grée w tin a quarter of a yere or if it be retourned that he be not