not absolutely acquired by Livery of Seisin but as it were now this Seisure In Dominico c. Is twofold Direct or meerly for use Direct which is also tearmed absolute is that which comprehends both Property and use The other consists solely in the benefit and use of a thing i Bract. l. 4. tr 1. c. 27. n. 6. tr 4. c. 4. Fl. l. 1. c. 12. 2. The English have a full Dominion and Power of things corporeal and moveable but not of immoveable if we except the supream power and right of the Crown for the Subjâ—ct hath not an absolute freehold in their Lands and Tenements but a Fee only and that fee doth not comprise so absolute a power appears not only by those Authors who write of Fees k Anto. Con. in Feodorum Comment c. 2. Matthae us â—â—esenbecius in tr de feodis c. 1. but even by Littleton himself when he saies that such a one was seised of such an Estate in his Demesne as of Fee by which words he affirms the highest and fullest title to be exprest And these words as of Fee do abate somewhat of an absolute power and argue a Tenure from a superiour but that these words are sometimes referred to the Kings Demesne l In 27 H. 8 16. is either from the ignorance of speaking and applying or else that distinction is maintained by which some will have a double acceptation of the word Fee viz. One by which a man holds an immoveable thing by any Title to him and his Heires The other by which one holds from another by Rent or Service or both m Flet. l. 5. c. 5. whereas Fee in the second acceptation is never without the Oath of Fealty n Termes of the Law V. Fealty Fulb. Paral. c. Seigniority f. 19. b. which the King never gave to any one as having an absolute Power o Fort. c. 9. Bract. l. 1. c. 8. Brit. in Praemi 3. Fee which is in latine Feodum and by some Feodum comes from the German Fief which signifieth an Inheritance held of another p Hottoman b. disput c. 11. and is by those that write of Fees defined to be an immoveable thing given to another in such a manner that the Property continues in the Power of the Donor but the benefit and use is to the Donee and his Heires Males or Females for ever So long as the Donee and his heires doe faithfully their Services to the Lord q Anto. Continus in Com. sup feod c. 3. so that Fidelity or Fealty is the foundation of Fee and nothing else Yet it often hapneth that it is not bestowed Gratis but for some small consideration of Money in the name of Rent or for Services r Duar. in Com. sup feod c. 12. Smyth Com. l. 3. c. 8. but we understand by Fee all which we hold to us and our Heiâ—â— s Bract. l. 4. tr 3. c. 9. n. 6. Lit. l. 1. c. 1. 4. Fee as it is taken for an Inheritance held of another is held either of the King or a Subiect or that we may use our owâ— Phrase a common person Fees that are held of the King are double either in right of his Crown which we call Tenure in Capite or of some Honour or Mannor appertaining to the Crown But a Subiect although he may have others who hold of him in Fee from whom he may exact Fealty yet himself is either mediately or immediately Feodary to the King for all the Land of this Kingdome which is not held of others by Services is held of the King and belongs to him either as ancient Demesne escheats or perquisites 5. Fee is divided into many Species either from the Effect or from some cause efficient or formall but we shall only discourse breifly here of those which we meet with most frequently in our Books 6. Fee therefore is either Leige or nonleige some Feodists t Duar. ib. will have it to come from the Italian word Liga which signifies a Band or League and that because it ties and obliges the Vasâ—al For Leige is properly where any one swears Fealty to his Lord non-Liege is when with the exception of another The first is due only to the King the later to common persons u 10 R. 2. 11. c. 1. 34. 35. c. 3. Lit. l. 2. c. 1. 7. Again Fee is either Royall or noâ— Royall Royall is the greater for that it hath somewhat of Royalty in it as from whence any one is instituted from the King â—eing absolute without acknowledging a suâ—eriour Of this sort are those which had a â—ignity or Honour conjoyned with the powâ—â— of their Priviledges and are by us stiled â—â—erties or Prerogatives Royall as where â—â—e King grants by his Charter to any Subâ—â—ct the view of a Franck Pledge the Pleas 〈◊〉 Impranding the amendment of the faults 〈◊〉 Assise the adjudging of Robbers as infangâ—â—eife and outâ—ang theife Soc Sac Tol Theam â—o punish by the Gallows or other punishâ—ents which the execution of Judgement â—â—all require Goods of Felons and which â—â—pertain to the Peace and consequently to â—â—e Crown w Bract. l. 2. c. 5. n. 7. c. 24. l. 3. tr 2. c. 35. Wrecks of the Sea Whales â—uâ—geons Free warren Fayre x Bract l. 4. tt 1. c. 46. and those â—â—her things which fall within the Kings â—erogative But of these Fees there are â—â—th us certain degrees since some have a â—â—eater number some a lesser granted unto â—â—em The first the Principallity of Wales claims 〈◊〉 right y Polid. Vir. in ed. 1. f. 343. lin 28. which from the time of Edward â—â—e first did belong to the Kings eldest Son â—nd the second is claimed by the foure Paâ—â—tinates or Counties Palatine Lancaster â—â—rham Chester and Ely z 5 Elix c. 23. 17 Ed. 4. c. 1. 27 H. 8. c. 25. And these have those Fees which we calâ—â—d Honors which the King besides the Jurisâ—â—ctions contingent to Courts Barons hath â—â—anted some though not all these Royallâ—â—es out of his Munificence a 31 H. 8. c. 5. 33. c. 37 38. 37. c. 18. 8. Thirdly Fee is either noble or Ignoble â—â—oble is that which hath any Dignity annext to it or which enobles the Possessoâ— or concludes him to be noble And of the sort with us are those which we cal Mannâ—â— whose Lords have some Jurisdictions thouâ—â— not Royal over those which hold of their 〈◊〉 b Perk. 670. Fulb. par Seig. f. 18. Kitch f. 4 Ignoble is that which depends of such Mannor and is granted to Countrymen 〈◊〉 their Heires for some base Service this 〈◊〉 commonly called Free-hold 9. Fourthly Fee is either new or anâ—â—ent * Homage Auncestrell new is there where any one is first all invested by the cheife Lord of the 〈◊〉 and that either by the Curtesy of the Loâ—â— or for Money paid to the former
feodaâ—â— for he is the first of a new Family who yeiâ—â— Homage and Fealty c Lit. l. 2. c. 7 ancient Fee is who the Feodary and his Ancestors time out 〈◊〉 mind have held such a Fee and here the Fâ—â—dists d Id. ib. new terms tit Hom. Auncest place a Medium between these two 〈◊〉 paternal Fee which comes by four degreese Discent and they define that to be the aâ—cient which discends from more e Duar. com in cons feod c. 4. n. 10. 10. Fiftly Fee is divided into ecclesiasâ—â—â—â— and Laick or Seculer Ecclesiastick is thâ— which is possessed either by Ecclesiastick persons or which belongs to Churches 〈◊〉 that which is held by Lay persons and cannâ—â— be possessed by Ecclesiastick and indeed 〈◊〉 Fees as with us laick unless they become â—â—ther by some speciall grant from the King which we call giving to Mortmain f Mag. Char. c. 36. 18 E 3. Stat. 3. c. 3. 15 R. 2. c. 5. Pol. Virg. l. 17. Eng. Hist 11. Sixthly Fee is distinguished 〈◊〉 Masculine and Feminine Masculine is thâ— which is given to the Feodary and the Heiâ— Males of his Body and of this kind 〈◊〉 those of Dukes Marquesses Earles Viscounts 〈◊〉 Barons for the most part Which 〈◊〉 defect of Heirs Males are extinguished 〈◊〉 return into the supremacy from whence â—â—ey Issued but these are at this day rather â—itles of Honour then Fees in regard they â—re for the most part conferred without 〈◊〉 â—emenine is that which may discend to â—â—e â—â—male Issue as when it is given indefinitely 〈◊〉 the Feodary and his Heires and so that or default of Heires males it may come to â—he females and their Issue g Bract. l. 2. c. 34. l. 1 c. 8. n. 4. 12. Lastly Fee is either pure or simple or â—onditionall Simple is that which is held 〈◊〉 a simple and perpetuall Right to the Feoâ—ary and his Heires for ever Conditionall 〈◊〉 that which is granted to the Feodary and â—uch or such Heirs for default of which it reâ—urns to the Donor and his Heirs and thereâ—ore he that hath Lands given to him and his Wife and to his Heires begotten of her in â—ase she dy without Issue before him is called â—enant in tail after hope or possibility of Issue â—xtinct For this kind of Fee with us is called Fee-tail comming from the French word Tallier to cut part or divide as if we should say a Fee by some means severed or diminished h Lit. l. r. c. 1 1 Instit Jur. com c. 11. 13 13. And this kinde of Fee is double viz. Taile generall and Taile speciall Generall Taile is where a Fee is given to the Feodary and the Heirs of him lawfully begotten or to be begotten for in this case the Children of either Wife whether first second or third shall inherit speciall Taile is where a Fee is given to the Feodary and his Wife and to the Heirs of either of them l Lit. ib. Inst Jur. c. 12. West 2. c. 1. or according to some when it is given to him and his Wife and one Heir of their Bodys lawfully to be begotten and one Heir of that Heâ—â— only m Perk. 171 but this whether it be properly to be stiled a Fee for want of perpetuity may 〈◊〉 be doubted 14. Now a Fee is not limited to one Fâ—odary but may be possessed by more so thaâ— they are called Partners Joynt-Tenants 〈◊〉 Tenants in Common n Lit. l. 3. c. 3 Inst Jur. com c. 15. Partners are either by Law or custome by Law are Sisters Co-heires because the Heires Males being dead they equally succeed their Parents in the Fee o Id. c. 1. 3 by custome are Brothers in maâ—â— Counties especially in Kent from the Custome of Gavâ—lkind called so from the equality of apportioning the Inheritance p Id. c. 2. Joynt-Tenants are they which hold Lanâ—â— or Tenements by one and the same Title but not hereditary Tenants in common 〈◊〉 those which possess Lands or Tenements 〈◊〉 indiviso by divers Titles as in case one Co-Heire sells her part to a stranger he is not Joynt-Tenant with the other Partners but is called-Tenant in common q Id. c. 4. Inst Jur. com c. 15. 15. A Fee with us is not only of Corporall things but incorporall also for the custody of a Forrest r Vid. N. b. f. 6. Dyer f. 30. n. 209. Prison s Id. f. 41. or County t 28 Ed. 1. Stat. 3. c. 8. may be granted to one in Fee and the same may be said of an annuall Rent u Vid. N. B. foâ— 8. and of an advowson severed and not appertaining to any Mannor which we call an Advowson in gross w Lit. l. 1. c. 1. Bro. tit Tenures 105. now there are many services pertaining to a Fee which we shall mention in the next Chapter 16. There are belonging even as it were to the very nature of Fees Fee farm free farm and free Tenement Fee farm is a Tenure of Lands and Tenements granted to any one and his Heirs for a yearly Rent which equals the third x F. N. b. fol. 210. b. or at the least the fourth part y Old Tenure ver Fee farm of the true value without any other Services then what are expressed in a Charter of Feoffment z West part 1. symb 463. some affirm that a Fee farm can only be granted for the life of the Farmer and some will have it Fealty although not expressed a New terms of the Law in the Feoffment and others that reasonable releife b Bract. l. 2. c. 39. n. 9. is due of right from the Fee-Farmer to the Donor but the condition of this Tenure is such that if Rent be not paid by the Tenant for the space of two years then the Lord or Feoffer may recover the Lands to him and his Heires upon his action 17. Britton makes free farm where Lands and Tenements are so given that the nature of Fee by Feoffment is changed from Knights service to certain annuall Service so that there is neither Marriage nor Releife requirable nor any other service expressed in the Feoffment c Brit. c. 66. but I do not remember that I have read this in any other Author 18. Free Tenement or free-hold is where Lands and Tenements are held only for life of the Tenant and such a Tenant is said to hold In Dominico suo ut de libero Tenemento d Dyer f. 221. n. 19. f. 153. n. 10. But if it shall be said that Fee is naturally a Free-hold I shall not deny it only must add that it is also somewhat more because perpetuall e Inst Jur. com c. 10. Lit. l. 1. c. 6. Bract. l. 4 tr 1. c. 37. but of that Free-hold which is meant here there are two kinds One which is for tearm of life even by the very custome and Law the
of Patronage in reâ—pect of the Fee which we possess and these 〈◊〉 tearmed the Lords of the Fee a Prat â—i lexicon verb. Patronus And theâ—â— are very few Infants that succed to good Estates who escape their Wardship and Câ—stody For as there is none with us except 〈◊〉 Crown who are seised of their Estates anâ— Tenements in a freer or larger Title thâ—â— Fee so is there scarce any Fee less worth But that it is bound to the Lord or a Patroâ— by Knights Service now those things whicâ— are proper to this Service are Gard Maâ—â—age and Releife b Lit. l. 2. c. 4 1. An Infant Heir who succeeds his Aâ—cestors c F. B. 262. Fletl 1. c. 11. Dyer 362. Gla. l. 7. c. 9. Bract. l. 2. c. 32. Brit. c. 66. Lit. l. 2. c. 4. in Knights Service remaines under the Guard and Custody of his Lord uâ—till he come to perfect age For before thâ—â— age he is not adjudged capable of those warâ—ick accomplishments requisite for a Knight â—nd due to his Lord by reason of his Teâ—ure notwithstanding that it falls out someâ—imes that age being dispensed with some are elected into the order of Knighthood before â—hey be compleat one and twenty years old But our Law supposeth these to be able to do those Offices due to the Lord of the Fee wherefore they are out of the custody though Infants d Brook tit Gard. 42. 72 Fulbeck in paral f. 29. Plow 267. 2. And this right of custody springs from â—his reason that since he who holds by Knights Service is obliged according to the â—greement at the first investing of the Estate â—o follow his Lord as a Knight in the Kings Wars It is presumed that no man will be more carefull in training up the Infant in â—eats of Armes then the Lord himself e Fort. c. 44. Polid. Virg. l. 16. 3. But if such an Heir be female she remaines in custody according to the Ancients f Bract. l. 2. c. 37. n. 3. but till fifteen and according to our moderns no longer then sixteen years of age g Lit. l. 2. c. 4 â—or no sooner doe they come to that age but they are immediately presumed to be able to govern their house and to marry such a Husband that shall be capable of doing the Service due to the Lord of the Fee h Bract. Lit. ibid. But if shee be compleat fourteen years old at the death of her Ancestor neither her Body or Land shall fall under the Custody of the Lord. i Lit. l. 2. c. 4. Mert. c. 6. West 1. c 22. Instit Jur. Com. c. 24. Br. tit Gard. 7. 4. But if in this case it come in question whether the Heir be an infant or not he shal remain in custody untill it be determined k Brac. l. 2. c. 37. Brit. c. 66 fol. 167. b. 5. If a Knights Fee discend to an Heir 〈◊〉 the Mothers side the Father living shalâ— have the Guard of his Body and the Lord of the Land for it is a Maxim that no one as to his Person shall fall into the custody of the Lord his Father living l Lit. l. 2. c. 4. 6. If Lands discend to a Wife who after Issue had by her Husband dieth So that the Husband for default of having possession 〈◊〉 the Lands in the life of his Wife cannot be Tenant by the courtesie of England In this case the Issue unlesse it be Heir to the Fatheâ— as being his eldest Son shall be in custody And if such Issue be a female and an Infant at the death of her Mother she shall remain If her Father have a Son living in custody notwithstanding her Father be alivâ— l F. B. fol. 143. 7. Lord of a Knights Fee may transfer the gard of his Tenant to another From whence there ariseth this distinction of Guardian iâ— Law and Guardian in Tail Guardian iâ— Law is the Lord himself Guardian in Tail is he to whom the Lord hath granted the the Custody of his Heir n Bract. l. 2. c. 37. n. 3. Lit. l. 2. c. 4. 8. There is also a Guardian simply and originally so called and a Guardian by accident from the cause of custody Originally is he who in right of his Fee hath the custody of his Tenant Causarily is he who for that he hath the custody of his own Tenant being yet an Infant hath upon that score the custody of another who is Tenant to his Ward o F. B. fol. 139. d. Dyer 123 n. 38. For an Infant cannot be Guardiâ—â— of an Infant p Flet. l. 1. c. 11. â— When there is an Heir male or female â—ho hath many capitall Lords they cannot 〈◊〉 have the custody of the Heir and thereâ—â—re one must be preferred before the rest â—nd that is he who first infeoffed the Tenant 〈◊〉 Knights Service the rest shall only be â—â—rmitted the custody of the Lands which â—â—e holden of their Fee q Bract. l. 2. c. 37. n. 4 c. Stamf. Prerog c. 2. 10. But if any Heir hold of the King in â—â—pite by Knights Service whether he hath â—â—her Lords or not the King shall be preferâ—â—d before the rest to the custody of the â—eir and that notwithstanding Priority or â—osteriority of infeoffing For that the King â—ath no equall or superiour in his Realme r Glan l. 7. c. 10. Bract. Stam. ut sup 11. A Ward who is once freed from the â—â—stody of his Guardian as by marrying or â—ontracting Matrimony with his consent â—â—all not return again into the custody And â—â—at notwithstanding he be under fourteen â—ears of age or afterwards that he shall marâ—y before 21. s Bract. l. 2. c. 38. n. 1. Lit. l. 2. c 4. 12. If there shall be many Daughters Coâ—cites who hold by Knights Service They â—hall be all under the custody of the capitall â—ord and none under the custody of the Mother t Bract. l. 2. c. 37. n. 6. Of the Legall Guardianship of Parents TIT. XVIII THE Father is preferred before all others to the custody of his eldest Soâ— For if an Inheritance fall to such an Infaâ—â— who hath a Father living notwithstanding that the Lands if they be holden in Knight Service be in the custody of the Lord of the Fee Yet the Body of the Heir shall remaiâ— with his Father a Lit. l. 2. c. 4 Cook l. 3. Case Rat. fo .. 37. 1. So also the Mother of an Infant 〈◊〉 holds in Socage shall have the Custody 〈◊〉 the Body and Lands of the Heire before aâ—â— kindred either of the Fathers side or Mothâ—â— side Of Fiduciary Guardianships TIT. XIX THat Tutela Fiduciaria which the Romanâ— imposed upon the male children theiâ— Parents being dead and upon the Childreâ— of Patrons our Ancestors seem wholly 〈◊〉 have neglected Concerning the first Weâ— have nothing determined save that which we mentioned before of the legall Guardianship
different Species k â—it l. 2 c. 9. Inst Jur. Com. 27. Broo. tit Tenures 69. but Fleta will not have this duty exceed the value of half a mark l l. 1. c. 11. 4. Castle-gard we have defined to be a service due to the King only Which is originally true because no man can erect a Castle or Fort in the Kingdome without the Kings License but in case the King granteth a Castle with all the liberties belonging to it unto a Subject he grants Castle-gard also if there be any such Service due unto iâ— And for this reason this Service may as well belong to a Subject as the right of a Forrest m Manwood par 1. de Jur. forset pag. 87. Cov. col 4. fol. 88. a. and Lit. c. Socage It is a Service consisting in fortifying and defending any Castle of the Kings or another Lords as often as the Feodary shall require And this is properly Knights Service when it requires the Person of the Tâ—nant but when it is converted into a certain pecuniary mulct payable every year for the fortifying and guarding of a Castle it is altâ—red from the nature of Knights Service n Tit. ib. Inst com c. 27. Bro. tit Tenures n. 58. F. n. b. fo 259. A. 5. The second sort of Knights Service or Military which is due to common persons as well as to the King is called Scutage o Plow fo 126. 129. from Sculum a sheild And he that holds by this is obliged at his own Charges for a certain number of daies to follow his Lord in the Warrs against the Scors p Lit. l. 2. c. 3. They who hold by an intire and whole Knights Fee q Camd. Bâ—it 111. which sâ—me determine to be 680. Acres of Land some eight hundred Acres some fifteen pounds Sterling some twenty pounds r 1. Ed. 2. c. 1. and others forty pounds s Smiths Com. c. 18. are bound to serve for the space of forty dayes t Bro. Tenures n. 19. they which hold but by halfe a Knights Fee twenty daies and so accordingly u Lit. l. 2. c 1. 6. Now that certain differences between Lords and Feodaries as well concerning Armes as the time of Serving viz. whether from the time of shewing or perfecting to begin might be removed it appears in most places that it is by ioynt consent of Lords and Tenants agreed that the Tenants shall pay yearly a certain summ of Money to their Lords according to the value of their Fee and so to be freed from personall duties w id ib. from whence the thing it self seems so changed by degrees that that service which with our Ancestors was so incertain is in most Fees at this day reduced to certainty and is called Scutage certain x Lit. l. 2. c. 5. that incertain kinde being in divers Mannors quite extinct now this certain Seutage is Socage y Bro. tit Tenures 28. 29. 7. There are also other reall Services which atâ—end a Knights Fee as the shadow doth the Body as Homage Fealty Custody of Land and Heires Releife Marriage z Brac. l. 2. c. 35. Lit. l. 2. c. 4. for these no time hath hitherto exterminated a Polid virg hist ang 16. 8. Homage which the Feodists call also Hominium b Hottom disp de feod 3. is a reall Service c Briâ— c. 66. spec Jâ—sâ— b. 3. Flet. l. 3. c. 26. which the Feodary yeilds regularly to his Lord at his first institution by prostrating himself on both Knees at his Feet with his head uncovered ioâ—ning his hands and putting them between his Lords who remains sitting and proâ—â—uncing these words or to the same effect Hear Sir I become your man from this day forward of Life and Limbe and of earthly worship and shall bear you Faith for the Lands I hold of you and if it be not the King that receives the Homage saving alwaies the faith which I owe unto our Soveraigne Lord the King so God me help and the Contents of this Booke which said the Lord shall kisse him d Bract. l. 2. c. 35. n. 8. 9 Lit. sect 2. l. 1. Inst Com. c. 23. 17. E. 2. Brit. c. 68. 9. Ranulphus de Glanville denieth than Bishop who is consecrated or a Woman may do Homage e l 9 Spec. 9. Inst l. 1. But Fitzherbert f N. B. 258. f. according to the Rule in the Register affirms that a woman if single may swear Homage and Fealty to the King when from him shee receives Livery of her Lands and our more modern Authors hold that both Clergy and Women are subiect to this Service although the termes of expression is a little different For a Clergy man for that he hath set himself a part for the more speciall service of God useth these words I do Homage to you and shall bear your Faith for the Lands and Tenements which I hold of you saving alwaies the Faith which I owe unto the King our Soveraine g Inst Com. c. 23. Lit. l. 2. c. 1. and a single woman doing Homage doth not say unto her Lord I become your Woman for that it is not convenient that she should be another mans woman then her Husbands whom she shall marry But she shall pronounce the same words which are prescribed to the Clergy h Id. ib. and a woman who is married shall do Homage by her Husband i Id. ib. 10. If it happen that any one hâ—lds divers Fees by Knights Service of diverse Lords he â—all do Homage to them all but shall use â—â—ese words in the end saving the faith which owe unto our Soveraine Lord the King and â—nto my other Lords k id ib. 11. Now it is to be understood that Hoâ—age is alwaies annexed to Knights service â—ut not solely to it for Tenant in Socage â—ay also do it l Brac. l. 2. c. 35. n. 6. 12. Homage is divided into new and anâ—ient called Auncestrell new is that which 〈◊〉 performed by him who hath a new Fee m Instit Com. c. 28. Lit. l. 2. c. 7. â—ncient by him who hath an ancient one â—nd that ancient hath a double effect one â—hat the Lord shall secure to his Tenant his Estate or fee or as our Authors say shall warâ—ant it against all men The other that he â—hall save him quiet and harmlesse from any Services of another Lord at least in respect or relation to that Fee 13. Fealty which our Authors also call Fiducia is a reall Service n Brit. c. 66. due from every Tenant to his Lord at his first induction whether the Fee be noble or ignoble for such is the disposition of this contract that whoever holds by Fealty only holds the most freely of any one except the King o Smith Com. l. 3. c. 8. for no Subiect can hold without Fealty p Lit. l. 2. c. 5. west Simbol l. 2. Sec. 303.
and anciently he that broke faith with his Lord did forthwith forfeit his Estate q Bract. l. 5. tr 3. c. 6. n. 3. 14. Fealty is double one is generall confirmed by the Oath of every Subiect to the sepremacy The other speciall due unto the Lord of the Fâ—e r Le grand constumier de Normand B. Fle. l. 3. c. 16. the first is constantly exacted at Sheriffs Courts and view of frank-Pledge or Court Leets from all which in the verge or precinct of the County or Leet who are twelve years old otherwise they have no warrant to continue in their Estates s Brac. l. 3. tr 2. c 1. n 1. yet our Ancestors more ancient used not to impose this Oath upon any under fourteen or fifteen t id ib. Flet. l. 1. c. 27. years of age the form of which Bracton thus explaines They shall swear that they will not receive or entertain persons out-lawed Murderers Robbers or Burglaries Nor that they will consent or connive at them or their Receivers and that if they shall know any such they will attaâ—â— them and that if they shall hear any Hâ—â— and Cry they shall immediately follow with their Family and Servants u Brac. cod Flet. cod and Brittâ—â— more briefely w c. 12. when he saith that they shall swear to bear saith unto the King and that they shall neither be Felons themselves nor consent to felonies 15 The form of fealty speciall is double One which is proper to freemen the other to Villaines When a freeman swears fealty to his Lord he laies his right hand upon the Book and saith as followeth Know you this my Lord N. that J. M. shall be faithfull and true unto you and faith to you shall bear for the Lands which I hold of you at the times assigned So help me God and all Saints x Lit. l. 2. c. 2. When a Villaine swears fealty hee shall holde his right hand a little higher then the Booke so that he touch it not and shall say Know you this my Lord N. that J. M. shall from this day forward be true and faithfull to you and faith to you shall beare for the Land which I hold of you in Villainage and I shall be justified by you in body and goods so help me God and all Saints y 14. E. 1. c. 2. Spec. Inst l. 3. 16. Custody or Guard is a reall service proper to a Knights fee by which the Lord hath the guard and care of the fee and that to his owne use without giving any account during the minority of the Infant his Tenant As also the Education and Guard of the Body of the Heir Now every one is with us an Infant till 21. yeares of age if a Male for our Law presumes that Knights service cannot be duely performed till that age z Fortesc c. 44. But we have spoken enough of this already Only this we shall adde That the Lord may if he please alien this his title of Guardianship as wel as any other thing which he hath whence it is that there is a double Guardian namely one of Right as the Lord of the fee The other in Fait which is he to whom the Lord hath aliened the Guard of the Heir and Lands or of the Heir only a Inst com c. 24. 17. Releife is a reall service or Patrimoniall though some call it aptly a fruit or beneficiall profit of a service b Coo. l. 3. case Penantes fo 66. a. due both to Knights service c Brac. l. 2. c. 4. Lit. l. 2. c. 4. Brit. c. 66. fol. 165. a. Flet. l. 3 c. 17. and Socage By which the Feodary Tenant by Knights service whether male or female being at full age at the death of the Ancestor viz. the male 27. the female 14. years of age is obliged to pay a certain summe of money Tenant in Socage paying so much for Releife as he payes d Lit. l. 2. c. 5. 19. H. 7. c. 15. Bro. Tenures 76 Flet. l. 3. c. 17. yearly by way of Rent to his Lord. At what age soever hee be at the death of his Ancestor that without delay e Dr. Stu. l. 1 c. 7. Flet. l. 1. c. 9. so that the first year he payeth his Rent double one by way of Releif the other part by way of Rent f Flet. l. 3. c. 17. For the Lord may immediately distrain that is take whatever he finds upon the Estate by way of pledy untill he shall be satisfied for his Releife g Littl. l. 2. c. 5. So if one hold by fealty and a pound of Pepper the Heir shall pay the first yeare two pounds of Pepper And the Law is the same where the Tenant payes for his Rent yearly a certain number of Capons or Hens or a pair of Gloves or so many bushels of Corn or the like But if in regard of the season the Tenant cannot pay Releife presently then the Lord ought to expect untill a convenient time As in case hee be bound to pay a Rose or a bushell of Roses at the Feast of St John Baptist Here if he dye in Winter the Heir ought not to be distreyned by the Lord untill the season come that Roses may be had h Littl. ib. This the Feodists define to be a Present or Gratuity which the new Vassall bestows upon his Lord for admission upon the death of another Or for any other cause which shall occasion the Estate to come unto him in regard it is now taken up by a new one i Hotoman verb. feodalis ver Relevium 18. And it is to be observed that the Heirs of Earls or Barons ar others that hold of the King in Capite that is in right of his Crown by Knights service If they are at full age at the death of their Ancestors shall pay their accustomed Releife Viz. an Earle 100. pounds a Baron an Hundred Marks The Heir of a Knight for one Knights Fee 100. shillings And if there be any who hold â—y a double Knights fee 200. shillings and â—o according to the rate k Mag. Ch. c. 2. Instit com c. 24. Flet. l. 3. c. 17. which is also â—rue in the cases of other Lords of Fees l Brac. l. 2. c. 36. Brit. c. 69. 19. The Ancients derived this word Reâ—eife a Relevando because the Inheritance which lay still by the death of the Ancestor was raised up into the hands of the Heir And for this raising up there should be a cerâ—ain fine or acknowledgment paid by the Heir and this they termed Releif m Brac. ib. Brit. ib. 20. Marriage is a reall service belonging â—o a Knights fee by which the Lord of the â—ee hath a power of bestowing his Feodary in Marriage according to his pleasure or at least of claiming the value of the Marriage â—f so be that he be under age at the day of the death of his
and some Donations are free and pure some under conditions and suspended n 3. Brit. c. 35. F. N. B. fo 205. d. Plow fo 30. and. 32. some absolute and large some strict and limited to certain Heires and some excluding Succession o Bract. l. 2. c. 7. Brit. c. 35. Doct. Stu. l. 1. c. 24. l. 2. c. 6. Lit. l. 1. c. 23. Flet. l. 3. c. 3. So also some Donations are by writing some without p Dr. Stu. l. 1. c. 16. Bract. l. 2. c. 16. Brit. c. 39. Flet. l. 3. c. 9. 4. Wherefore we are to see who can give and who not and it is generally to be understood that every one who by Law and Right are not prohibited may give r Bract. cod n. 4. Flet. l. 3. c. 3. now all those are prohibited who have not a generall and free administration of what they have as Wards who are under tuition and pupillage not being able to govern themselves yet they may receive and render their condition better but they cannot give either with or without the authority of their Guardians So neither one that is deafe and wholly deprived of his hearing but it is otherwise if he can hear though with much difficulty the same is also to be understood of one that is dumb and cannot speak Yet according to the opinion of some they may consent by signes nods but it is generally held that he who is dumb can not make a gift because he cannot consent to it so neither can a mad man work that is not Compos mentis unlesse he injoy any Lucida intervalla s Id. eod Brit. c. 34. but the Church executes in the stead of a Ward t Bract. eod Brit. c. 54. Flet. l. 3. c. 3. 5. He cannot make a gift who is a Captive so long as he is in the custody and under the power of his Enemies because he cannot possess who is possst by others not make a Gift effectually seeing he possesseth nothing u Bract. l. 2. c. 8 n. 4. Dr. St. l. 2. c. 43. the same also for the very same reason may be said of a Servant for that he possesseth nothing so long as himself is in the possession of others w Bract. l. 2. c. 16. yet it seemes he may give any such thing whereof his Lord hath not as yet taken possession or Scisin x Lit. c. Vall. 6. Formerly a Leaper could not make a Gift as being put out of the society of men y Bract. l. 2. c. 5. Brit. c. 34. nor hath a Bastard any Heirs to whom he may give effectually under that notion unless it be those who are lawfully begotten of his own Body z Bract. and Brit. ib. Perk. tit Grant 48. 7. He that is attainted of Treason or convicted of any other capitall offence cannot make a gift after the Felony committed if so be he be afterwards iudicially convict and condemned by sentence a Bract. l. 2. c. 13. Brit. c. 34 Stanf. Pla. co l. 3. c. 32. Flet. l. 3. c 7. and l. 3. c. 10. Fulbeck Seigniories f. 26. Perkins Grants 29. yet in some cases he may before conviction make a gift of Chattells b Vid. next Chapter 8. Nor can any one give who hath not Seisin of the thing given except the King only c Dyer fo 108. n. 28. 29. 30. which according to the ancients is true also notwithstanding that he have Dominion and receives Services d Eract c. 5. Spec. Just l. 2. c. de contractes Flet. l. 5. c. 15. 9. Nor are gifts made between man and wife worth any thing for a man cannot give to his wife nor e converso during coverture Because such gifts between such persons are prohibited But if they be made before marriage or after Divorce they are valid provided they be not upon the score of subsequent marriage yet a man may by his last Will and Testament give a Fee simple to his wife and the reason of the difference is because a will is not of force before the death of the Testator e Lit. l. 2. c. 10. lib. Assis pla 60 and then the Husband and wife cease to be one and the same person f Bro. devise 34 10. Nor can any man effectually give that which is anothers g Bract. l. 2. c. 24. Plow fol. 528. nor can one who is beyond Sea according to some h Glan l. 7. c. 1 make a gift but others maintain the contrary which is the better opinion i Bract. c. 5. n. 8 The wife cannot make a gift without the Husband nor can the Husband without the wife of such lands as are the Wives k Brit. c. 34. F. n. b. f. 163. A. B. C. D. 11. Moreover the Statutes of this Common-Wealth have set such bounds to Donations and Gifts that they permit not any man to make gifts to the defrauding of his creditors beyond his limits l 13 Eliz. c. 5. 27 Eliz. c. 4 12. There are also some who cannot make Gifts without the consent of others as Arch-Bishopps Bishops Abbots and Priors Cannot give Lands without the consent of the King or some other of their Lords Because the consent of all them whom the thing may any way concern is necessary and requisite m Bract. d. c. 5. n. 7. Brit. d. c. 34. F. n. b. fol. 194. 195. whence it is that they who hold of the King cannot make a gift of their Lands without his consent n Flet. l. 3. c. 3. nor can the Parsons of Churches because they hold nothing but in right of the Church Wherefore they cannot make a Gift alienation or change without the consent of the Bishop and Patron unlesse it be so that the condition of the Church be bettered thereby Yet these want not some who affirm them uncapable of doing that without the aforesaid consent o Bract. l. 2. c. 11. Flet. l. 3. c. 4 13. All are capable of receiving Donations unless prohibited by any express Law or custome nor only single persons but eveâ— many together p Bract. l. 2. c. 5. n. 6. c. 11 Brit. d. c. 34. now these are Femes Coverts incapable to receive the Gift of their Husbands or otherwise during coverture q Mag. Ch. c. 36 Fl. l. 3. c. 5. Religious persons r 7 E. 1. c. 2. 34 E. 1. c. 4. 18. E. 3. Sta. 3. c. 3. all Ecclesiasticks in the name and right of their Church s 15. R. 2. c. 5. F. N. B. fo 221. Q. Bodies politick t 15. â— 2. c. 5. for those Immoveables which are without lawfull permission given to bodies politick are forfeited sometimes to the King and somtimes to the next cheif Lord u Bract. l. 2. c. 5. n. 6. so neither can Jewes w Brac. ib. nor any who are not under the Allegiance of the Supremacy x Bract. l. 5. tr
Croâ—â— Nor will an Obligation to warranty hinder unlesse it were upon Exchange Or otherwise for the value in Fee or service Oâ—â—â—least unlesse they were granted for the Câ—â—modity and Honour of the King as the Bâ—ronies of Bishops a Flet. l. 1. c. 8. 17. c. But this Right 〈◊〉 now almost wholly worne out either by the munificency of our Kings or by the 〈◊〉 much negligency of our Common-wealth And therefore King James did worthily study a wholsome remedy for so pernicious 〈◊〉 mischeife 1. Nor can a Husband so alienate the Inheritance or Joynture of his Wife but thaâ— it may be recovered by her or her Heirs after his Decease b Glan l. 6. c 3. Brit. c. 34. F. N. B. fol. 193. d. 2. Those who hold of the King in Capitâ— either by Knights service or Socage cannot without punishment alienate their Lands without license c Id. fo 175. A Bro. aliâ—nat tenures 69. 32 H. 8. c. 1. Yet some are of opinion that such alienation is good for the Buyer or Feoffee against the Seller or Feoffor although the King cannot be prejudiced by it d Bro. Testaments 34. 3. An Infant e F. N. B. fo 192. g. Perk. 3. Grants 15. â—9 Mad-man f F. N. B. fo 292. C. Monk g Perk. ib. 3. or Feme-covert h Id. ib. c. 11. Bro. Exec. 175. cannot alienate Nor can a villain those things which himself hath purchased i F. N. B. 202. l. if his Lord be possessed of them Or if they be not possessed in case hee be the Kings villain k Littl. l. 2. c. 12. 4. There is also an old Law lately revived by an Act of K. James which to the subversion of the Church was almost lost through neglect wherein Arch-Bishops and Bishops are prohibited to alienate the Fees of their Churches l 1 Jac. ses 1. c. 3. 5. Lastly those who otherwise may alienate in some cases cannot namely Lands or Tenements to a Body politick whether Ecclesiasticall or Seculer m 7. E. 1. 18. E. 3. c. 3. 15. R. 2. c. 5. F. N. B. fol. 221. Q. without obtaining the Kings license for alienating it in Mortmaine And on the other side Religious Colledges which were founded by the Kings of England are prohibited to alienate their Lands without the Kings License and permission n Westminst 2 c. 41. 6. And on the contrary it sometimes happens that he who is not Owner may alienate for a Creditor by contract may alienate a pawne or mortgage although the thing be not his As if it be agreed in the beginning that it shall be lawfull for the Creditor to sell the Pawne if the money be not paid So also may a Wife Apprentice or any other Servant which a Merchant appoints to sell Commodities in his Office or Shop o F. N. B. fol. 120. H. Bro. tit Contract 37. 40. or any other person who hath command from the Owner p New booke of Entries trespass in Agist 1. Ejectm firm 10. 7. And sometimes it falls out that he who hath a full power to alienate a thing cannot doe it but after a certain forme or manner for the King can neither purchase nor alienate without that special method of Entring which we call Record q Plow 553. By what person wee may make acquisition or gaine to our selves TIT. IX NOw we are to know by what persons wee may purchase or gaine to our selves And know that we may legally by our selves our Wives our Servants Male or Female by Sons or Daughters which are under our protection by Free-men who serve us provided their Deed be necessary and warrantable and approved a Brac. l. 1. c. 9. n. 3. l. 2 c. 11. n. 12 c. 18. n. 6. l. 3. tr 1. c. 2. n. 12. Brit c. 35. 38. Lit. l. 2. c. 11. Dr. Stu. l. 1. c. 8. l. 2. c. 18. And also by those Servants b Flet. l. 3. c. 13. c. 15. l. 4. c. 11. c. 12. who are not under our power as well as by those who are provided they be not under anothers yet so as we take no benefit by them before it be determined whose they are so also by a Common Servant and that as well by anothers as ones owne which we do bona fide possesse and by such a one of whom we have an use 1. And this may be done also by Procurators Tutors Keepers or Guardians who either bargain in our name or are in possession c Brac. l. 2. c. 18. n. 6. Flet. l. 3. c. 4. c. 15. And the same is to be understood of those who are naturally deafe and dumb d Id. ib. 2. The Sons and Daughters also of Villains which are under the power of their Lord without manumission If they make a purchase without the bounds of the villainage have no Heir but their Lord. If so be that he take possession of such Tenements either in the life of his Villain after his Death e Brac. l. 4. â—r 3. c. 13. n. 1. Of ordaining last Wills and Testaments TIT. X. THe third kind of Donations which are by reason of Death are last Wills and Testaments a Brac. l. 2. c. 26. Flet. l. 2. c. 57. Now a Testament is the determination of our Will concerning that which one would have done after his decease b l. 1. de â— Testament And it is double Viz. Proper or Improper That which is properly so called is that last Decree of a man in which hee names his Executor c Brc. Test 20. And hee is in the place of him whom the Romans called Haeres is as the Basis of the Testament d Swin par fo 1. Sect. 3. n 19. representing the state of the Testator That which is improperly called a Testament is any other lasâ— wil whether a Codicel or Donation by occasion of Death or Letter e Valiâ—ius in com sup Instit tit de Testam ord in pri n. 9 10 11. And either of these may be two-fold Viz. either written or Nuncupative f Perk. Testam 476. but Lands cannot be given by a Nuncupative will g 32. H. 8. c. 1. Coo. l. 3. Bakers case fo 31. Dier fol. 53. n. 13. fol. 72. n. 2. fol. 143. n. 54 55. 1. That rigorous way of Solemnity which the Romans used in making of Wills is long since abrogated by the Canon Law which counts two Witnesses before the Parish Priest sufficient to maintain or prove a Will h C. cum esses 10. extra testamentis Nor doth the Custome of England oblige so much as the Decretall for with us it is sufficient to pronounce a will before two Free-men whether Clergy or Lay i Brac. l. 1. c. 16. n. 2. Glan l. 7. c. 6. Dier fo 52. n. 13. Yet our Sages doe for very good reason perswade men
Ancestor unlesse he be specially mentioned in the Instrument of Contract and have an Estate sufficient discending 2. Bracton d L. 2. c. 26. n. 1. Glan l. 7. c. 8. Plow fol. 418. makes this distribution of Chattells Viz. That Debts being paid the overplus should be divided into three parts whereof one to be left to the Children the other to to the Wife and the third at the will and pleasure of the Testator And if there be no Children then one halfe to the liberty of the Testator and the other to the Wife And if there be no Wife then one moity to the Children and the other as the Testator shall please But this rather seems to be Counsell then Law for a little after in the same place hee saith That neither the Wife nor Children ought to take more of the Goods of the Father or Husband deceased then what is particularly bâ—quâ—athed unto them except it be upon some speciall grace as having merited extraordinarily of him in his life time And he gives this reason namely because there would scarce be found any one who would endeavour to lay up much if hee should be compelled at his death to leave it to illiterate or debauched children or to an ill wife And therefore it is very necessary that in this they should have a free power for by this they prevent vice and encourage vertue and give occasion both to VVife and Children of well doing which could not be if they knew undoubtedly that they should have a certain portion whether the Testator will or not Of the instituting of Heires TIT. XIV THe Civillians and wee have a different acceptation of the word Heire for they call him an Heir whom the Testator nominates in his VVill a Inst de Testam ordinand And we him who is next of Kin to the party deceased to whom a Fee doth of right belong after the death of the Ancestor b Glan l. 7 c. 1. Brac. l. 2. c. 33. â— 3. Brit. c. 118 119. So that we affirm it is not man but God who makes Heirs c Glan Brit. ib. And that Here 's comes from Hereditate where succession is by right of Blood d Brit. ib. Nor do we call all the Estate of the party deceased his Inheritance but only his Fee or at lest those Lands tenements with all things corporal and incorporall which the Party deceased held by a perpetuall Right e Iidem ib. VVherefore it was necessity which in some sort constituted an Heir who as he was wont to succeed his Ancestor in the premises even against his will so was he obliged to pay his Debts if he had Assets sufficient and the Chattels did not suffice f Glan l. 7. c. 7. Brac. l. 2. c. 26. n. 1. as we have in part declared before 1. VVherefore an Heir with us doth not succeed to the universall Right of the Party deceased but to the Fee assigned only for as to the disposing of Chattels men nominate their Executors according to their pleasure g Glan l. 7. â— 6 Brac. ib. Dr. Stu l 2 c 10 who as to that part of the Patrimony supply the place of an Heire and represent the person of the Testator if at least they accept the Office h Bro Executors 5 21 22 57 77 84 122 so that they may convert all those goods which are not bequeathed to their own use i Plow 943 and take even the cloathes of the widow if they are more rich and sumptuous then the condition of the Husband would bear k Bro. ib 19 An Executor may also be ordained either absosolutely or upon Condition l Id. ib 9 administrat 1 45 and either from a certain time or after a certain time m Bro Exec 155 and either universally or particularly n Id ib 2 and 155 L Dier fo 3 4 n 7 8 and in the first degree or by Substitution o Id ibid and either one or more p Id ibid 13 24 38 117 3. And those may be Executors whom the Testator shall constitute whether they be strangers or Parents of Kinne or not of Kinne q Brac l 2 c 26 n 2 and not onely those who are free but Servants also and those whether our own or of others r Lit l 2 c 11 Bro villains 68 nor only Lay-men but even of the Clergy also and Religious s Bro ib 68 77 if they have the permission of their Superiors t Fitz. abrid Execut 47 so also may women u Bro. Execut throughout and Infants w Id ib 15 and in fine all who are not expressely forbidden by the Law x Glan l 7 c 6 4 4. Not that any one is against his will forced upon this office but that he that will may refuse and he who hath once refused may notwithstanding afterwards undertake it z Bro ib 38. 117 Perk 4 85. though according to the opinion of some he cannot during the life of his Co-Executor a Dier fo 160 n 42. but being once undertaken it cannot be laid down again and the undertaking of it seems to be when he doth under that name intermeddle with any of the Goods of the Testator b Id. f. 166. n. 10. 11. If an Executor die before the Will proved then Administration of the Goods shall be granted by the ordinary to the widow or next Kinsman of the Testator who shall be obliged to dispose of the goods of the Testator according to the Will unlesse the Remainder of the Goods after the payment of Debts and Legacies were bequeathed unto him for in this Case the Executors of that Executor may justly challenge Administration which the Will annexed c Id. fo 172 n. 8. Of the ordinary Substitution TIT. XV. Substitution is of no small use with us though we do for the most part in this follow the Precepts and Rules of the Civil Law yet we cannot so freely dispose of those fees which we hold by Knights Service by our Testaments but that we are obliged to leave a third part to the heir a 32. H. 8. c. 1. Glan l. 7. c. 7 but for those which we hold in Soccage not intailed b Brac. l. 2 c. 30. or tied by any particular Custome c Glan ib. we may bequeath them to whom we will whether to a Kinsman or stranger d 32 H. 8. c. 1. provided we hold no other Lands in Capite by Knights Service and in each of these Cases we may make Substitution either vulgariter as they term it or Pupillariter Now this Substitution is nothing else then the adding of a Condition which we commonly call Tail namely a limitation of Heires to whom we intend to have the Lands discend from the Testator or remain or otherwise revert to us and our Heirs 1. Yet is not this Substitution the same with that of the Romanes
Kitchin tit Escheat f. 110. Of the Tertullian Decree TIT. 3. WEE in the case of Fees follow the Rigour of the twelve Tables which will by no means suffer an ascending from Children to Parents a Bract. l. 2. c. 29. n. 1. wherefore if this seem harsh to any one we shall wish him a Tertuilian or Claudius to perswade our Senate to the contrary Of the Orphitian Decree TIT. IV. CHildren with us doe equally succeed to Inheritances comming from the Fathers or Mothers side and that by the same rules and in the same degrees a Flet. l. 6. c. 9. wherefore we have no need here of an Orphitius Of the Succession of Cozens by the Mothers side TIT. V. THe Romans called those particulerly Cognati which were allied by the female side a Ult. S. 1. â— de gradibus affinitatis but there remaines nothing to be spoken of them the two former Titles being considered b viz. The first and second of this booke where we have shewn That these are never to succeed as Heires but for default of Heires on the Fathers side which is so to be understood that the most remote Cozens on the Fathers side discending in a direct line but not in a collaterall are to be preferred before the neerest on the Mothers side for the great great Grand-child of my â—â—neall Niece or of my Sister shall succeed 〈◊〉 before my Sons or Daughters Cozen-â—erman c Bract. l. 2. c. 30. and 31. 1. This breifly I thought also to insert that 〈◊〉 default of Heirs in a right line discending 〈◊〉 in each collaterall line the Land shall â—scheat to the Lord of the Fee d Glan l. 7. c. 17. Bract. l. 2. c. 29. n. 1. Lit. l. 1. c. 1. F. N. B. 143. Of the degrees of Consanguinity TIT. VI. HAving mentioned degrees it is requisite to take a view of the persons who are â—n possibility of succession and who are preferred before others in succession from the first degree of the same line to the last a Bract. l. 2. c. 31. n. 2. 1. In the right line ascending are these Grand-Father great Grand-Father the great Grand-Fathers Father the great Grand-Fathers Grand-Father the great Grand-Fathers great Grand-Father and so ad infinitum b Id. ib. Flet. l. 6. c. 2. 2. In the right line discending Father and Mother are first which make the common root then Son and Daughter the Nephew and Neice and so Ad infinitum c Brac. and Flet. ib. 3. In the collaterall line ascending Brother or sister of Father or Mother make the second degree and so their Heirs Ad infinitum d Id. ib. 4. In the collaterall line discending are Brother and Sister and their Heires Ad infinitum e Id. ib. Of the Consanguinity of those who are servile TIT. VII THis Title is with the ancient Civilians reckoned as part of the former a Wesenb in the same Title noâ— doth our Law determine any thing in the cases of such as are manumitted contrary to the rules of those who are born free there Marriages being a like lawfull Of the succession of such as are made free TIT. VIII PAtrons are not with us admitted to succeed those who are made free in case they dy without Issue wherefore if any one purchase a Fee after Manumission and dy without Heirs the Lord of the Fee shall claim it by Escheat and not he who gave the party deceased his freedome a F. N. B fol. 143. T. c. the same rules are also for the Chattells of such dying Intestate as for those who were born free Of the assignation of such as are made free TIT. IX THere is no difference with us between those who are manumitted and those who are born free save that they some time were Servants wherefore we have no use of this kinde of Assignation in our Common-weath Of the possession of Goods TIT. X. THE supream power with us gives the possession of a Fee to the Heirs of them who hold the Fee of him by any kinde of service in Capite for he by his Prerogative hath the primer seisin of Lands a Stan. Prerog c. 3. and 13. F. N. B. fo 255. and. 256. c. nor can the Heires receive them but by his hands those who hold of other Lords by Knights service much more Tenant in Socage so soon as they come of age enter upon their Estates by right and in case their Lords hinder them may have their Action having satisfied the value of their marriage b 1. But for those goods which we call Chattells the Ecclesiasticall Judge who is in stead of the Ordinary give possession of them according to the Will or at least confirm the possession being taken to the Executors of the party deceased but if there be no Will then he grants Administration to the widow or next kinsman of the party deceased yet so that the goods shall be distributed according to his Judgement either amongst c 31 Ed. 3. c. 11. them or for pious uses d Linw. provin Of acquiring by Adrogation or Adoption TIT. XI THere is nothing hinders but that the English may adrogate or adopt and be adopted but in this Case the consent of both parties is solely essentiall for our Law determines nothing of this kind of acquisition unlesse that which naturally falls out between party and party in contracts Of him to whom Goods are granted for Liberty TIT. XII AS for those Servants who receive their Freedome from their Lords by Testament the cheif thing is the performance of the Will for it is not materiall whether the Executor will accept the Office For we have shewn before how ungratefull that old solemnity of the Romans in Case of Wills is to us Of Successions which were amongst the Romans by the Sale of Goods according to the Claudian Decree TIT. XIII WE have not this kind of acquisition amongst us yet have we something like unto it for the Fees and all other the Goods of Banckrupts who having consumed their fortunes withdraw themselves That their Creditors may not arrest them wheresoever they be found are divided towards the satisfaction of Creditors by such Honourable persons whom the Statutes in this Case mention a 34 H. 8. c. 4 13 Eliz. c. 7. but above all that most famous Act in King James his time doth most carefully provide in these Cases b 1 Jacob. Ses 1. c. 15. Of Obligations TIT. XIIII WE have before treated of persons and things and are now to speak of Actions a Brac. l. 3. tr 1. c. 1. now an Action comes from precedent Obligations as a Child from a Mother b Id. ib. n. 2. an Obligation is a legall Bond or tie whereby we are necessarily bound to the giving or doing of any thing c id ib. c. 2. n. All civill Obligations may be divided into two kinds Obligations by the Common Law and by
w Lit. ib. 19. All persons may regularly take formes except spirituall who are prohibited unlesse it be for the maintenance of their Families x 21. H. 8. c. 13. 20. Lessee is obliged to pay his Rent to the Lessor which if he shall faile to do the Lessor during the Terme may distrain and this seems true whether it be agreed so or not For whatsoever is brought by the Lessee into the Tenement is annexed as a pledge for the Rent y Dr. Stu. l. 2. c 9. Lit. ib. Brac l. 2. c. 28. n. 1. but after the tearm he cannot z Lit. l. 1. c. 5. Flet. l. 2. c. 59. the payment of Rent admits no satisfaction for the Lessee is not freed by paying before the day a Coo. Bevills case fo 10. a If Tenant of a Fee-farm doth not occupy the Land leased for the space of two years by reason whereof there can be no distresse the Lessor upon his Action may recover it into his own hands b 6 E. 1. c. 4. Westm 2. c. 21. F N B fo 209 G 22. But in most Leases whether for years 〈◊〉 life it is covenanted that in case the â—ent be behinde at a certain day yearly 〈◊〉 half yearly unpaid that the Lessor may â—â—ter reastume the possession to himself or â—â—at the Lease shall forthwith become void â—â—d expire In the first case if the Rent at â—â—e day assigned be not paied being lawfulâ—â— demanded upon the ground by the Lesâ—â—r not only he in his life time but after his â—eath unlesse he distrained in his life time 〈◊〉 the Rent or received it upon tender c Coo. l. 3. Pennants case 〈◊〉 Heir may enter otherwise not d Dr. Stu l. 1. c. 20. Dier fo 51. n. 17. for â—ent ought to be demanded e Perk. 836. nor in this â—â—se doth the day demand for the man but 〈◊〉 the condition be that the Rent shall be â—â—id in any extrinsecall place there needs 〈◊〉 demand according to the opinion of â—â—me f Dier l. 8. n. 23. 24. though others more modern affirm â—â—e contrary g Coo. l. 4. Burroughes case fo 73 23. If Husband and Wife hire land at too â—â—ere a Rent the Husband dying before the â—earm the Wife may leave it and if the Husâ—and survive the wife and dye his Execuâ—â—rs have the same liberty If the Testotors Goods are not sufficient to satisfy the other Creditors the Rent being computed for 〈◊〉 tearm of years h Dr. Stu. l. 2. c. 33. Dier fo 146. n. 70. 24. If a man make a Lease for a year upon Condition that the Rent shall be paid at Michaellmas and in the mean time give a generall release to the Lessee of all Actions â—nd Demands this doth not remit the rent i Lit. l 3. c 8. although it seems something strange 25. A Lessee is not only bound to the payment of Rent k Dier fo 4 n 1. but also to use well the thing leased l Id. fo 324. n 34 so that if either he or a third person commits Waste he is liable unto the Lessor according to the penalty of the Statute m 6 E 1 c 5 Dier fo 90 n 9 and 10 and fo 108 n 31 and fo 198 n 43. and is left to take his remedy against the third person n Dr. Stu l 7 c 31 and l 2 c 4 unlesse he be aâ— Infant o Id l 1 c 17 but it is not waste to fell timber for necessary reapaâ—tions p Id ib 26. In selâ—ing and hiring the Law is the same as to the mutual obligation of persons as in Covenants And therefore if the Lessee undertakes for himself to do or not do anything his Executors or Assignes not being named himself is only bound and they free from any manner of Obligation q Dier fo 65 n 8 but this is sometimes disputable A Lessee covenants with his Lessor that if either he his Executors or Assignes alienate the Lands leased to another that then it shall be lawfull for the Lessor or his Heires to re-enter and to eject the Lessee his Executors or Assigns and not long after the Lessee falls sick and by his last will constitutes his wife his Executrix and dies the wife marryes a second husband who alienates her right and tearm in the said Lands and it was much questioned whether in this case the Lessor may enter in regard this second Husband was neither Executor nor Assignee of the first But in the end it was determined for the Lessor because the second Husband was in this case adjudged Assignee in Law though not in fact r Dier fo 6 n 5 27. If a Lessee oblige himself to leave houses in repaire at the end of his tearm the Lessor cannot bring his action of Covenant untill the Term be ended although the Lessee should pull the houses down yet he may bring an Action of waste s F. n. b. fo 145. K. 28. Lessee is not obliged against a greater force or against tempests or Incursions of enemies unlesse he do expresly oblige himself to it t Dr. Stâ—â— l. 2. c. 4. Dier fo 33. n. 10 11. fo 36. n 35. fo 56. n. 14. 12 H. 8. fo 1. b. v. Lit. l. 1. c. 8. 29. Tenant at will is not bound to repararations as Tenant for years u but if he commits waste he is liable to an Action of Trespasse w id ib. Dier fo 90 n. 9 10. Of Partners or Fellowship TIT. XXVI OUr judicious Lawyers are very frequent in disputing the Rights of those partners or fellows who hold Lands or other things pro indiviso and these they call either Partners Joint-tenants or Tenants in Common a Little l. 3. c. 2 3 4. 1. Partners are either by the Law or by Custom by law b Termes v. Parceners Little ib. two or more women of the same degree who for defect of Heires Males succeed by equall Right in the inheritance of their Ancestors or else the sons of two women to whom Lands not formerly divided by their mothers descend c Little l. 3. c. 1. and 2. by Custome are those who from the Custome of divers Provinces which we call Gavell kind do equally succeed their Ancestors whether they be brothers or for default of them sisters Nâ—ices or Aunts 2. Joint-tenant are either called so properly or improperly e Instit Jur. Com. c. 15. Dier fo 67. n. 18. fo 160. n. 43. properly are those who hold a Fee or Freehold or any reall Chartell by force of the same Title pro indiviso improperly are those which possesse any personall Chattell so and those are thus ioyned either by their own will solely as purchasing the Premises with their own mâ—nies and so possessing them pro indiviso or else by the will and bounty of others as where one gives any thing to two or more iointly f
Lit. l. 3. c. 4. unlesse the Donees be a Body Politick and receive under that notion or at least one of them in which case they are tenants in Common g Id. ibid. 3. Partners and joint-tenants differ two wayes the former being joyned by necessity and are called Partners meerly in respect of their inheritance Joint-tenants have their name either from purchase or Gift and are joyned together by their own Wills and not by necessity h See the former quotations 4. Thereare also some who are Joint-tenants only for life and yet have severall inheritances as where Lands are given to two men or two women and to the Heirs of their bodies in this Cafe so long as they live they are called Joint-tenants for one of them having Issue and dying his fellow shall have the whole during his life who also if he shall leave Issue and die his Heir with the Heir of him that died before shall hold the said Lands in common i Iâ—st c. 15. and if one of the Donees die without Heire his part for defect of an Heire shall after the death of his fellow revert to the Donor k Littl. l. 3. c. 3. 5. Tenants in common are they who hold the same thing as Lands or Tenements Chattells personall or reall jointly but by severall Titles l Id. ibid. c. 4. for if one parcener alienate or give his Right to a stranger the stranger and the rest are Tenants in Common though the rest amongst themselves enioy their former appellation 6. Wherefore Tenants in Common differ from partners in this that these do not possesse any thing in Common by Right of inheritance as do the others nor are they ioyned by any necessity and from Joint-tenant in that they hold a thing in Common by divers Titles or at least the Tenants are naturally so unequall that they cannot admit of any coniunction such are bodies politick among themselves or with single persons m Id. ibid. 7. First for partners these though they die before Partition transmit and leave their part to their children if they have any otherwise to the rest of their fellows n Id. ibid. c. 2. Inst c. 14. 8. Partition may be made either by mutuall consent o Dier fo 179. or if some refuse by the power of the Judge for he who desireth to have his part divided may have a Writ of Partition by which he shall compell the rest to divide p F. n. b. 61. K. 259. C. 260. B 261. C. but if one woman Partner entermarry and having Issue dieth the Husband being Tenant by the courtesie may compell them to a Partition if it be not already made q Littl. l. 3. c. 2. 9. Littleton doth very fully describe the manner of making Partition both by consent and compulsion but this is rather matter of fact then of Law that onely is observable that if Partition be made by consent one or more of the Partners being under age it may afterwards be corrected wheâ— they come to full age provided they do not confirm it when they come of age by receiving the profits r Id ib. and if it be a Fee-Tail although all be at age at the time of the Partition made yet their Heirs may disagree to 〈◊〉 s id ib. so also if an unequall Partition be made by the Husband of co-Heirs after Marrimony is dissolved either of them may disagree t Id. ib. F. n. b. 62 E. 10. If after Partition any part of either oâ— the Partners Estate lye evicted by Law He or she whose part it was may compell the rest to a new Partition and recover a lawfull part in those Lands which the rest hold u Little ib. c. 2. 11. If there be an Advowson in the inheritance and the Partners will not consent in the Presentation of a Clerk then the eldest shall present in the first vacancy and the rest according to their Case and to this they may be compelled if they refuse to agree and every one hath therr lawfull remedy if they be hindred from presenting in their turn w F. n. b. 34 T and 36 C. 12. If there be two Joint-tenants of a Fee simple withi a Burrough where Lands and Tenemenrs are divisible by Will and one of them devises his Right to a stranger and dies this Devise is void and the reason is because that part which by the Law at his death comes unto the other by the Right of â—â—crease and out of Descent cannot any way 〈◊〉 conveighed to another by a Will which â—â—es not its Operation till the Death 〈◊〉 the Testator from him that claims the â—â—ole x Littl l 3 c 3 13. Two take a Lease joyntly for years â—â—th this condition agreed to between the â—â—ssor and them that if the Lessees die beâ—â—â—e the Terme ended the Lease shall be â—â—id The Lessees make Division and one 〈◊〉 them alienateth his part and dies the 〈◊〉 Lessor cannot reassume the part of him â—â—at died but the Alience shall hold it duâ—ing the life of him that surviveth nor hath â—ccupation in this Case any force but it two â—â—ke a Lease for theit lives and make parâ—â—tion either of them dying his part immeâ—iately reverts to the Lessor y Dier fo 67. c 18 14. Two are Joint-tenants for life one of which lets out his part by Indenture to a third person for years reserving a Rent from it to him and his Heirs and dies the question is whether by his death the ritle did wholly vanish or whether the surviving Joint-tenant ought to hold the whole for his life if he ought then whether he were left to his own libertty notwitstanding the Lease of his fellow or to take onely the Rent reserved upon that moity and it was adiudged by the Justices that the surviver ought to hold the whole Lands for life and that free and disobliged from the others Lease z Id fo 178 n 5 15. And this is the difference between Joint-tenants in Fee and Partners that neither of the Donees can charge his Lands whiâ—â— he holds pro Indiviso with any Rent longâ—â— then for life but a Partner may and the râ—â—son is it cannot preiudice his fellow or 〈◊〉 Heir who derives his Right not from hiâ— but from the Donor but Partners succeedinâ— one the other for defect of Heires may froâ— one anotherr derive their Right a Littl. ib. c. 3. 16. Which notwitstanding in letting 〈◊〉 clearly otherwise for if one of the Doneeâ— who holds pro Indiviso to him and his Heiâ—â— let out his Right for a compleat Term 〈◊〉 dies the Lessee after his death may retain 〈◊〉 during the Term nay he may enter into tâ—â— Lands although they were not delivered unto him in the Lessors life time or anâ— wayes possessed by him b Id. ib. and the reason 〈◊〉 diversity between a Rent Charge and a Lease is iudiciously given by Littleton
certainty by the Legatee c Fulb. par 38. b. 16. There hath been a great difference in opinions amongst our learned Lawyers and that according to the diversity of Species in the cases of Corn c. sowen by those who had Land in possession and not severed from the Soil For example Tenant in Dower sowes Corn and dies before Harvest She may devise the Corn though not yet ripe d Perk. 521. Stat. Merton c. 2. Flet. l. 2. c. 37. which is true also as to those Lands which she holds Joyntly or severally under the notion of Dower e Perk. 513. Fulb. 17. â—ural Devises 38. 17. But if contrary to custome she be endowed by the Guardian of the Heir and dying leaves Corn growing her Executors may be ejected by the Heir when he comes to age and hindered from gathering the profits f Perk. 524. So if the Heire coming of age recover Lands against his Mother or Widow of his Ancestor in a writ of Admeasurement of Dower he shall recover not only the Lands but the Corne also which is by him deviseable g Id. ib. 18. Tenant by the Courtesey leaseth forth his Lands and dyeth The Lessee shall reap his Corn and may if he dye before it be ripe devise it h Id. 514. which may also be done by a Parson of a Church as to his glebe Lands i 28. H. 8. c. 11. 19. So also he who hath Lands in right of his Wife his VVife dying after the Corne sowen may reap the benefit ar devise it k Perk. 518. Lit. l. 1. c. 8. which his Lessee also in case hee have leased out the said Lands may doe l Perk. 513. Fulb. par fol. 37. b. 20. Execution is taken upon a Mannor of the Debtors by vertue of a Statute Merchant The Creditor sowes the Land and before Harvest a Tenant of the said Mannor dyeth the Custody of whose Heir being under age satisfieth the Debt This will not hinder but that the Creditor may also devise the Corn not yet ripe or gathered m Ib. 516. 21. Mony is paid at the day upon a mortgage yet it seems the Creditor although some are of a contrary opinion may devise the Corn which he sowed and which as yet remains ungathered n Id. ib. 22. Tenant in Taile leaseth out his lands for life The Lessee sowes Corn the Heire recovers upon a Formedon in the Descender and dyeth before the Corn is gathered This Corn according to the opinion of some though others contradict it hee may devise by Will o Perk. 520. Fulb. fol. 37. b. 23. Tenant in Fee-simple dyeth and leaveth an only Daughter and a VVife with Child The Daughter enters and sowes the Land but before Harvest the VVife is delivered of a Son to whose use the next Kinsman possesseth himselfe of the Estate in this case the Daughter may devise the Corn. p Perk. 521. Fulb. fol. 38. a But we will put the case thus The Mother before the Sonne is born recovers Dower against the Daughter and hath that part assigned by the Sherifte which the Daughter sowed In this case she may devise the Corn yet it is a Quaere q Perk. ib. 24. Tenant for tearm of yeares commit waste upon which the Lessor recovers the Land In this case the Lessee cannot devise the Corn r Id. 515. Neither can he if another upon a more ancient Title recovers the said Land against the Lessor s Id. ib. 25. Lessee of a House for forty years deviseth the said House to A. without mentioning the Title which he hath or giveth The Question is what he deviseth And it is adjudged that the Testator deviseth that title which himselfe hath Viz. The term of forty yeares t Dyer fol. 307. n. 69. 26. Lessee for years be que at heth his Interest to A. the remainder of the years to B. in case A. dye before the term expired A. is in possession by vertue of the Devise and not long after Aliens his Right and dies before the terme expired The Question is what remedy B hath to recover his Right as to the remainder of the years unexpired And it was adjudged that he is without Remedy u Id. fol. 75. n. 18. f. 140. n. 41. But if the Testator had devised so many years of the Lease to A as A should live and had ordered B. to succeed in the residue In this case A. could not have so alienated the Term but that B. should have succeeded in the Remainder unexpired w Dyer fol. 358. n. 50 51. fo 359. n. 52. 27. Disseisee recovers against the Disseisor The Disseisee may devise the Corne sown but if it shall be severed from the ground the Disseisor may take it away or devise it x Perk. 519. yet he shall pay the Disseisee Damages y 6. Ed. 1. c. 1. 28. A Testator can neither devise Actions if they be not Judgments nor instruments of Actions z Brac. l. 2. c. 26. a. 28. n. 2. l. 5. tr 5. c. 10. n. 3. Fulb. fol. 30 31. but hee may that which is due upon Action Yet is this devise conditionall namely if the Debt be paid or recovered by the Executors a Perk. 527. 29. Our Law respects principally as doth the Civill Law and Reason likewise the will of the Testator b Cook l. 3. Bullers case fo 27. Fulb. fol. 46. Plow 343. if not contrary to Law If therefore a man having both a Sonne and Daughter living deviseth his Lands to his Daughter Although the Sonne be more worthy yet the Daughter shall have the Lands c New terms v. devise If he adds and annexeth a Condition to the devise which is neither impossible in Nature or Law this shall suspend the devise untill it be performed d Brit. c. 36. Perk. 570. Brac l. 2. c. 6. n. 1 2 3. Swinb part 4. Sect. 13. And this is so farre true that sometimes words are extended beyond their naturall intent e See the rest of his tit and sometimes for causes restrained f Fulb. 41. Plâ—w 540. by reason of the conjectured will and meaning of the Testator 30. A. deviseth Lands to B. conditionally that he pay so much money Although by force of words B. hath an Estate for life only yet the Law adjudgeth him to have a Fee-simple g Brac. Test 18. Perk. 555. for otherwise if B. should dye in a short time He might receive more prejudice then profit by the Devise 31. A. deviseth all his Lands and Tenements to B. B. shall not only have all the Lands and Tenements which A. had in possession but the Reversion likewise h Termes v. Devises 32. If Lands be bequeathed to One to have any to hold to him for ever Or to have and to hold for him and his Assigns for ever In both Cases the Devisee hath an Estate in Fee-simple
although there be no mention of Heires i Id. ib. which notwithstanding some affirm joyntly k Perk. 557. 33. If a man bequeath Lands to another in these words I give my Lands to A. to give them or sell or dispose of them at his discretion This is a Fee-simple l Terms ib. 34. A Testator bequeatheth Lands to A. and the Heires Males of his Body A. hath Issue only a Daughter and of her a Grand-son In this case the Grand-son shall succeed in the Lands by force of the Devise rather then the Devise shall remain ineffectuall notwithstanding that in other Donations it is otherwise m Id. ib. 35. If I devile Lands to my Son after the death of my Wife although I doe not expresly give it to my Wife yet our Law â—elpes her by a favourable Construction n Id. ib. Pl. 414. Bro. Exec. 175. 13. H. 7. fol. 17. 36. I devise a Fee-simple to A. for a 100. yeares upon this condition if that he shall pay ten pound yearly to B. the remainder of the said Lands to C. and his Heirs In this case although A. shall break his Condition yet the Remainder as to C. is not hurt although the Law be contrary in Contracts made amongst those who are living o Perk. 504. 565 566 567 568 569. 37. A man deviseth all his Lands to A. upon condition that he give a 100. pound And in case the Condition be infringed then to his owne Family In this case our Law determineth this Devise to belong to him who is next of Kinne to the Testator by blood p Fulb. 46. 38. A man deviseth to another all the Grain which he hath in such a Barn And after the Will is made hee puts more Grain into the said Barne In this case the generality of the words is restrained to that which was there at the time when he made his VVil for that the Law presumes the Testator to have meant only of that q Id. fol. 41. Plow 341. 39. A. after many Legacies in his VVill deviseth the Remainder and residue of all his Goods to his VVife E. in these words The residue of all my goods I bequeath unto my deare wife E. whom also I doe ordaine full and sole Executrix of this my last will and Testament to be disposed of by her for the good of my soule and the payment of my debts E. takes upon her the Office of Execution and payes all Debts and Legacies Afterwards she entermarryeth with B. who getting possession of the said Goods having made his VVill and ordained his Executors dyes before E. Here the question is whether the Goods which E. brought to her second Husband shall revert to her Or whether they belong to the Executors of B. And it was determined that they should revert to E. because the residue of the Goods were destined to certain uses and not left to her disposing r Dyer fol. 331. n. 21. 40. A. being possessed to the value of 100. pound and indebted 20. pound divides his Estate by his Will One moity to B. his Wife the other moity to his Executors The question was whether B. shall have 50 pound or 40 pound and it was resolved that the might claim 50. pound But if the Executors had aliened any of the Goods in Specie that then she could not challenge any of those which were alienated because they were alienated s Dyer fol. 164. n. 57. 41. Devises and Legacies are to be sued for in the Ecclesiasticall Court t Glan l. 7. c. 7. Yet some restrain this assertion only to Chattels reall and personall u Perk. 570. for that the Ordinary cannot take Cognisance of Fees or Freehold w Id. 576 577 578 579. devised But a Prohibition will lye if any Judg of any Spiritual Court shall cyte one before him in case of such a Devise as intrencheth upon the Common Law x Dr. Stu. l. 2. c. 55. Of the taking away or translating Devises TIT. XXI WHereas the Civil Law doth ipso facto null the Will for default of an Heir a L. 10. â— de jure codillorum Ours doth not presently suffer Devises to become void for want of an Executor or for default of an Executors undertaking the Office but appoints Administration of the Goods to be committed to another according to the Judgment of the Ordinary who obligeth the Administrator to the payment of Legacies at least as farre as the Estate will reach b Bro. Executors 1. Lands Tenements and other Hereditaments whatsoever devised by a Testator If they shall happen afterwards to be alienated by him and are again redeemed They are equally due to the Legaree as if they had never been alienated c Id. Devise 8. Of that Law which the Romans called Lex Falcidia TIT. XXII THe first duty of an Executor taking upon him the Office is to satisfie the Debts of the Testator and therefore it wil not be amisse to consider what Antiquity hath adjudged in these cases If there be Debts owing to many saith Bracton a L. 2. c. 26. Glan l. 7. c. 5. Flet. l. 2. c. 57. one may be preferred before another The King is first and it shall be lawfull for the Sheriffe or any of the Kings Bailiffs shewing the Kings Letters Patents De summonitionibus scaccarij to take an Inventory of such Goods and Chattels as they shall finde in the Lay-fee of the party deceased and to attach them to the value of the Debt which is coming unto the K. per visum legalium hominum as we call it so that nothing be removed or taken thence untill such a Debt as shall appear due be payed and the residue of the Chattells to be left to the Executors To the acquitting of which Debts or any other the Wife of the party deceased is not to contribute any thing out of her Joynture for that the Wives Joynture ought to be free b F. N. B. fo 151 a. which holds true except where the Husband is indebted to the King before the Title of Joynture In the second place are to be deducted debts due to others such as are clear and acknowledged amongst which are to be reckoned services and Servants wages provided they be certain But if they be incertain although they depend upon courtesy Yet if their stipends shall be set by the Will of the Testator or his Friends they shall be deducted out of the Goods of the deceased so shall Funerall Charges The Wife also shall have her necessaries even her lodging in her Husbands cheife Mansion house for 40. dayes unlesse her Dower be sooner assigned 1. But that the Estate of the Party deceased may the better appear the Executors or Administrators with the privity and by the assistance of two at the least of the Creditors or Legatees Or if they refuse then two of the next of Kinne provided they be unconcerned of the Deceased Or