some such Tenants have an Inheritance according to the custome of that Mannor yet in very deed they are but Tenants at the will of the Lord for as some men think if the Lord will expell them and put them forth they have no remedy at all but to sue unto their Lord by way of Petition desiring him to be a good and gracious Lord unto them for if they might have any remedy by the Law then should they not be called say they Tenants at the will of the Lord after the custome of the Mannor but other men of no less Learning and prudence have been of contrary judgment as Lord Brian Chief Justice in the time of King Edward the fourth whose opinion was alwayes that if such a Tenant by the custome paying his Services be ejected and put forth by his Lord without cause reasonable Action of Trespass he may very well bring and maintain an Action of Trespass against his Lord at the Common Law as appeareth Termino Hillarij An. 21. E. 4. Also Lord Danby Chief Justice likewise was of the same judgment as appeareth Termino Mich. An. 7. E. 4. where he saith That the Tenant by the custome is as well Inheritable to have his Land after the custome as is he that hath a free-hold at the Common Law but the determination of this question I remit to my great Masters which can lose the knots and ambiguities of the Law forasmuch as yet still of this matter Causidici certant adhuc sub judice lis est Also ye shall understand that the usage of some Mannor is when the Tenant will surrender his Land to the use of another that he shall take a Wand or a Rod in his hand and deliver it to the Steward of the Court and the Steward shall deliver the same Wand in name of Seisin to him that shall take the Land and such a Tenant is called Tenant by the Verge Divers other customs there be of surrendring of Copyhold Lands which here for tediousness I will omit And forasmuch as Tenants by custome of the Mannor have by the course of the Common Law no free-hold therefore they be called Tenants of base Tenure Base Tenure Also if such a Tenant letteth to farme his Copyhold Land for longer time then a twelve moneth and a day without the Lords licence it is a forfeiture of his Land to his Lord. And know ye that if this Tenant fell any Timber that groweth upon the Land but only for the reparation of the same this is Wast and a forfeiture of his Copyhold Hitherto have I treated of the first member of our division that is to wit of Chattels for as I said all Leases for terme of years and at will be accounted in the Law but as Chattels and be comprised under that name save that these be called Chattels reals whereas Kine Oxen Chattell reall and personall Horses Money Plate Corn and such like be called Chattels personals Now we will proceed to the explanation of the second member that is to say of Freeholds CHAP. VIII Of Freeholds FReeholds or Frank-tenements a man may have in sundry wise for either he is seized for terme of his own life or for terme of another mans life if he be seized for terme of his own life either he hath gotten such estate by way of Purchase or else the Law hath intituled him thereunto I call it by purchase whether he cometh unto it by his own bargaining and procurement or by the gift of his friend and I call it by the operation of intituling of the Law when a man marrieth a woman that is an inheritrix and hath issue by her Tenure by the Courtesie and she dieth now shall he have the Lands during his life by course of the Law and shall be called Tenant by the courtesie of England Likewise if a man be seized in fee-simple or fee-taile of Lands and taketh a wife and he dieth the Law giveth unto the wise the third part of her husbands Lands for terme of life Tenant in Dower and she shall be called Tenant in Dower CHAP. IX Tenant for terme of Life TEnant for terme of Life is he that holdeth Lands or Tenements for terme of his own life or for terme of anothers life howbeit the most frequent and common manner of speaking is to call him that hath an estate for terme of his own life Tenant for life and him that hath an estate for terme of anothers life Tenant for terme dauter vie that is to say Tenant for terme of anothers life Ye shall note that like as he that maketh the Lease is called the Lessour and he to whom the Lease is made is called the Lessee so he that maketh the Feoffment is called the Feoffer and he to whom the Feoffment is made the Feoffee Also if the Tenant for terme of life or Tenant for terme of another mans life doe waste Waste the Lessour or he in the reversion shall maintain very well an Action of Waste against him and shall by the same recover trebble damages Finally Ye shall understand that by an Act of Parliament made in the 27. year of our Soveraign Lord King Henry the eight it is enacted That no Freehold nor estate of Inheritance shall pass nor take effect by reason of any bargain and sale except the same be made by writing indented sealed and enrolled in one of the Kings Majesties Courts at Westminster or else within the County where the Land doth lie before the Custos Rotulorum and two Justices of Peace and the Clerk of the Peace of the same County or two of them at least of which the said Clerk shall be one and that such enrolment be made within six moneths after the date of such writing and for the enrolment of every such writing where the Land comprised therein is not above the yearly value of Fourty shillings they shall take two shillings that is Twelve pence to the Justices and Twelve pence to the Clerk and if the Land be above the yearly value of Fourty shillings then they shall take Five shillings that is Two shillings and six pence to the Justices and Two shillings and six pence to the Clerk which shall enroll and ingross sufficiently in parchment such Deed and writing and at every years end he shall deliver the same to the Custos Rotulorum of the same County to remain in his custody among other Records of the same County so that the parties resorting thither may see them provided that this extend not to any Tenements or Hereditaments lying within any City or Town Corporate wherein the Majors Records or other Officers have authority or have lawfully used to enroll any Evidences or writings within their Precinct CHAP. X. Tenant by the Courtesie TEnant by the Courtesie of England is he that hath married a Wife inherited and hath had issue by her and she is dead in this case the Law of England permitteth and
the Feoffer held so that no man can hold in Frank-almoigne but by force of a grant made before the said Statute only the Kings Majesty excepted for he is out of the compass of the Statute Finally ye shall note That whereas a man shall hold in Frank-almoigne his Lord is bound by the Law to acquit him of all manner of service that any other Lord can have or demand out of the said Lands so that if he doth not acquit him but suffer him to be distrained then he shall have against his Lord a certain Writ called a Writ of Mesne Writ of Mesne and shall recover against him his damages and costs of his Suit CHAP. XXXV Of Burgage A Tenure in Burgage is where an antient Borough is of which the King his Lord and they which have Tenements within the same Borough Socage Tenure held the same of the King paying a certain Yearly Rent which Tenure in effect is but Socage Tenure likewise it is whereas any other Lord Spirituall or Temporall is Lord of such borough Here ye shall note Custome that for the most part such antient Boroughs and Towns have divers Customes and Usages which other Towns have not for some Boroughs have a Custome that the youngest Son shall Inherit before the Eldest which custome is commonly called Borough English Dower by Custome Also in some Borough by the Custome the Woman shall have for her Dowrie all the Lands and Tenements whereof her Husband was seized at any time during the Matrimony and Coverture Moreover Devise by Custome of Borough in some Boroughs a man may bequeath or devise his Lands or Tenements by Testament at the time of his death and by force of such devise or Legacy he to whom the bepuest is made after the death of the Testator which made such Testament may by force of this Antient Custome enter into the Land so to him bequeathed or devised without any Livery of Seisin to him made or further Ceremony of Law Howbeit how and in what manner a man may at this day devise his Lands by his last will and Testament by force of a certain new Statute it shall be hereafter declared Divers other Customes in England there be contrary to the course of the Common Law which if they be any thing probable and may stand with reason are good and effectuall notwithstanding they be against the Common Law And note That no Custome is allowable but such Custome as hath been used by Title of prescription or time out of mind CHAP. XXXVI Of Villinage or bond Service A Tenant in Villinage is properly when a Villaine that is to say a bondman holdeth of his Lord whose Bondman he is certain Lands or Tenements according to the Custome of the Manour or otherwise at the will of his Lord and to do his Lord Villane service as for to bear and carry the dung of his Lords out of the City or out of his Lords Manour and to lay it upon the Demeane Lands of the Lord or to do such like Service and Villanies Service Howbeit Free-men in some places hold their Tenements and Lands of their Lords by Custome by such sort of Service and their Tenure is called Tenure in Villinage and yet they themselves be no Villaines nor of servile condition but Freemen for the Land holden in Villinage maketh not the Tenant a Villaine but contrariwise a Villaine may make Free Land to be Villaines Land unto his Lord as if a Villaine purchaseth Land in Fee-simple or Fee-tayl the Lord of the Villaine may enter into the Land so purchased by his Bondmen and put him and his Heirs out for ever and this done the Lord if he will may Lease the same Land to his Villaine to hold of him in Villenage And here ye shall understand That Servitude or Villenage is the ordinance not of the Law of nature but of that Law which is called jus gentium by which a man is made subject contrary to nature unto another mans Dominion for he that is a Villaine or Bondman either he is so by Title of prescription that is to say he and his Ancestors have been Villains time out of mind or else he is a Villaine by his own confession in some Court of record so that all Villaines either they be born Villaines or else they be made so they be born Villaines when their Father being a Bondman himself begetteth them in Lawfull Wedlock either of a Free Woman or of a Bond Woman for so that the Father be Bond the Issues of him Lawfully begotten must needs be Bond by the Laws of England having no regard to the Condition of the Mother whereas in the Civill Laws of the Romanes it is clean contrary for there Pars sequitur ventrem that is to say the Servitude or Bondage of the Mother maketh the child Bond and not the Bondage of the Father Bastard Howbeit the Bastard Son of a Bond man shall not be Bond and the reason is because a Bastard is nullius filius in the Law that is to say no mans sonne They be made Bondmen or Villaines two waies either by their own proper act as when a Free Person being of full age will come into a Court of Record and there confesseth himself Bond to another man Or else by the Laws of Arms called jus gentium as when a man is taken prisoner in wars and is compelled to serve and become the Thrall and Bond man of him that took him the Law calleth such a Person a Villaine that is to say a slave and Thrall And ye shall note Definition of Villaines That Villaines be properly called in Latin Servi because that when they be taken in warre the Captains be wont not to kill them but to sell them and so to save their lives So that they be called Servi a servendo that is to say of serving They be called Mancipia a manu capiendo because they be taken by hand and power of their enemies Now as I said by the Law of Nature we are all born free but after that by the Law of of Gentility servitude or bodage did press and invade the world then ensued the bene-of Manumission Manumission is Quasi de manu emissio that is to say Manumission a giving out of the hand or power For so long as a man is in bondage and servitude he is subject to the hand and power of another and when he is Manumissed he is made free and delivered from the said power So that a Manumission is to say a Writing testifying that the Lord hath infranchised his Villain and all his off-spring and Sequell Also if the Lord maketh to his bondman an Obligation of a certain summe of money What acts maketh Manumission in Law or granteth to him by his Deed an Annuity or yearly Pension or leaseth to him by Deed Lands or Tenements for terme of years any of these acts do imploy an Enfranchisement Likewise if
the Lord maketh a Feoffment to his Villain and maketh unto him Livery of seisin this also is an Enfranchisement and secret Manumission Briefly to speak wheresoever the Lord compelleth his Villain by the course of the Law Causes of Infranchisem to do that thing that he might otherwise enforce him to do or to suffer without the authority and compulsion of the Law he doth by implication Enfranchise his Villain as if the Lord will bring against his Villain an action of debt an action of account of Covenant or of trespass These and such like be in the eye of the Law Enfranchisments and Manumissions because that the Lord in all these cases may have the effect and purpose of his sute that is to say the Goods Chattels and correction of his bondman without the compulsion of that Law even by his own proper power and authority which he hath upon his Villain But if the Lord doth sue his Villain by an appea of Felony the Villain being lawfully indicted of the same before this is no tacite Manumission or Enfranchisement For the Lord though he have power to beat his Villain and to spoyl him of his goods yet he cannot by the Law of this Realm put him to death Ye shall also understand that if a mans bondman purchase Lands or acquit and get unto him any other thing the Lord may forthwith enter and seize the same into his own hands Wherefore if the Lord will bring against his Villain a Praecipe quod reddat by which he demandeth against his Villain any Lands or Tenements this implieth an Enfranchisement for as much as he bindeth himself to the Prescript and Authority of the Law whereas he might use his own Authority by entring and seizing the said Lands Finally Ye shall mark that some Villains be called Villains in gross and other some be called Villains regardant In gross be they of which the Lord is severally seized and not by reason of any Lordship or Mannour but they be called regardant which do belong to a Mannour of which the Lord is seized And the said Villaines have been regardant that is to say exspectant and attendant time out of mind to the Lord of the said Mannour in doing unto him such services as to a Villain appertaineth CHAP. XXXVII Of antient Demesne THere is also a certain kind of Tenure which is called antient Demesne and these Tenants which hold by their service be Fee-holders and by Charter and not by Copy or Court-Roll or by the Verge after the Custom of the Mannour at the will of the Lord And these Tenants be such as hold of those Mannours which were S. Edwards the King or which were in the hands of King William the Conqueror and these Mannours be called the antient Demesnes of the King or the antient Demesnes of the Crown of England And to such Tenants which hold of such Mannours be many and divers Liberties given and granted by the Law as to be quit of tolé and passage and such like Impositions which be demanded of men for their Goods and Chattels sould or bought in Faires and Markets by them also to be quit and free of Tax and Tollage granted by Parliament except that the Kings Majesty do Tax antient Demesne as to him only appertaineth when he thinketh good for great and urgent Considerations Tenants also of antient Demesne ought to be quit of payments to the Expences and Charges of the Knights which came to the Parliament Also they ought not to be impannelled nor put in Juries and Enquests in the County out of their Mannours or Seigniory of antient Demesne for the Lands which they hold of such Mannour unless they have other Lands at the Common Law for which they ought to be charged And if such Tenants or any of them which hold of the Mannour of antient Demesne bedistreined to do unto their Lord other Services or Customes then they or their Ancesters have used to do Writ of Monstraverunt then may they sue a certain Writ called a Monstraverunt directed to the Lord commanding him that he distrein them not for to do other service or Customes then they have been accustomed to do And for further knowledg hereof you shall understand that in the Exchequer there is a Book called Dooms-day which Book was made in the time of the said S. Edward and all the Lands that were in the Seisin and in the hands of the said S. Edward at the time of the making of the said Book by antient Demeane But the Lands which then were in other mens hands Frank-fee though they be written in the said Book be frank Fee and no antient Demesne Finally It is to be noted that Tenants of antient Demesne shall not be impleaded for their said Lands out of the Mannour whereof they so hold and if they be Abatement of Writ they may shew the matter and abate the Writ But if they once Answer to the Writ and Judgment given then the Lands have lost the nature and benefit of antient Demesne and are become frank Fee that is to say Pleadable at the Common Law for evermore And thus have we spoken of the Diversity of Tenures CHAP. XXXVIII Of Rents FOr as much as upon every Tenure there is commonly reserved one Rent or other therefore I think it good somewhat to treat of Rents but ye must understand that there be sundry sorts of Rents There is one kind of Rent which is called Rent-service Division of Rent-service another which is called Charge and the third which is named in French Rent Secke that is to say in Latine Redditus siccus a drie Rent Now Rent-service is so called because it is knit to the Tenure and is as it were a service whereby a man holdeth his Lands or Tenements or at the least way when the Rents be unseverably coupled and knit with the service As for an example where the Tenant holdeth his Land of the King or of any other Lord by Fealty and by certain Rent or by any other sorts of services and by certain Rent this Rent is called Rent-service Distress of common right And here ye shall note That if this Rent-service be at any time when it ought to be paid behind and unpaid the Lord of whom the Land or Tenement is so holden whether it be in fee-simple fee-tayl for term of life for years or at will may of common right enter and distrein for the Rent though there be no mention at all nor cause of distress put in the Deed or Lease I said before that the Nature of this Rent-service is to be coupled and knit to the Tenure For where no Tenure is there can be no Rent-service And therefore if at this day I be seized of Lands of Fee-simple and make a Deed of Feoffment of the same to another in Fee-simple reserving by the same Deed a Rent this can be called no Rent-service because there can be now no Tenure between
and Will and afterwards maketh another Will by words if his last Will be proved before the Ordinary and by him put in writing and in sealed with his Seale such last Will shall avoid the first Will unless it be in speciall cases And so alwaies the latter Will and Testament shall avoid the former Finally by an Act made the 21. Year of H. 8. it was ordained that part of the Executors which take upon them the charge of a Will may sell any Land devised by the Testator to be sold albeit the other part which refuse will not joyn with them CHAP. LI. The difference between Executors and Administrators EXecutor is when a man maketh his Testament and last Will and therein nameth the person which shall execute his Testament then he that is so named is his Executor and such an Executor shall have an Action against every Debtor of his Testator Assets in the hands of the Executors and if his Executors have Assets that is to say sufficient in their hands then shall every one to whom the Testator was in Debt have Action against the Executor if he have an Obligation or specialty to shew But in every Cause where the Testator might wage his Law there no Action lieth against the Executor Administrator is he to whom the Ordinary commiteth the Administration and bestowing the goods of a dead man for default of an Executor And Actions shall lye against him or for him as for an Executor and he shall be charged to the value of the goods of the dead and not further if it be not by his false Plea or for that he hath wasted the goods of the dead But if the Administrators dye his Executors be not Administrators Executors of his own wrong but it behoveth the ordinary to commit a new Administration Howbeit if a stranger I mean him that is neither Executor named in the Testament and last Will nor yet Administrator appointed by the ordinary will take the goods of the dead and Administrator of his own head and mind without Lawfull authority this person shall be charged and sued as an Executor and not as an Administrator in an Action which is brought against him by any Creditor But if the ordinary make a Letter de colligendum bona defuncti he that hath such a Letter is not Administrator but the Action lieth in this case against the ordinary as well as if he took the goods by his own hand or by the hand of any other his Servant by any other Commandement CHAP. LII An Act of the probate of Testaments made Anno Dom. 21. H. 8.5 NOthing shall be given for the Probate of a Will or Commision of Administration when the goods of the dead exceed not 5lb save only 6d to the Register Nevertheless the Judge shall not refuse to prove such a Testament being exhibited to him in writing with Wax ready to be Sealed and proved Communi formâ but shall dispatch the party without delay For the Probate of a Will and all other things concerning the same when the goods of the dead exceed 5lb but not 40lb the Judges Fee is 2s 6d and the Registers 12d and when they exceed 40. the Judges Fee is 2s 6d as before and the Registers as much or the Register may refuse the 2s 6d and take a penny for every ten lines of the Will each line being conceived to contain ten Inches in length and for these Fees they shall dispatch the party without frustratory delay Where there is no Will or the Executors refuse it Administration ought to be committed to the Intestates Widow if he left any or to the Widow and the next of the Kindred or in case he left no Widow to one or more of the Kindred or in case they look not after it to any Creditor or Creditors that desire it or in case they also neglect it to any other person or persons at the descretion of the Ordinary who is enjoyned to take Security of such Administrators for the due Administration of the Intestates goods Nothing shall be given for Letters of Administration when the Intestates goods exceed not 5lb and when they exceed 5lb but not 40lb the Officers Fees are only 2s 6d The Executors or Administrators calling to them two or more Creditors or so many of the next of the Kin or in their default two or more neighbours or friends of the dead shall in their presence cause a true Inventory to be made of the goods and shall deliver the same in upon Oath unto the Ordinary indented whereof one part shall remain with the Ordinary and the other with the Executors and Administratours The Judge or Ordinary shall not refuse to receive an Inventory indented Inventory of goods so tendered unto him in Court together with his oath to verifie the same Lands devised to be sold shall not be accounted any of the Testators goods The Fee for the Copy either of the Will or Inventory is the same with that above allowed for registring the Will or else the Register may take a Penny for every ten lines of the length as aforesaid The Officer that taketh more then his due Fee shall forfeit that excess to the Party grieved and besides 10lb to be divided betwixt the King and the same party grieved This Act shall not alter the Customes where less money hath been for probate of Testaments The Ordinary may convent Executors to prove the Testators Will and to bring in the Inventory as before notwithstanding this Act. CHAP. LIII How Lands and Tenements may be by Testament or otherwise disposed of Enacted Anno 32. H. 8. EVery person having Mannours Lands Tenements or Hereditaments holden in Soccage or of the nature of Soccage Tenure and not having any such Mannours Lands c. holden of the King by Knights-service Soccage or of the nature of Tenure in chief Soccage Tenure in chief nor of any other person by Knights-service shall have power to give dispose will and devise as well by his last Will and Testament in writing or otherwise by any Act executed in his life all such Mannours Lands c. at his pleasure Every person having Mannours Lands c. holden of the King in Soccage or of the nature of Soccage in chief and having any other Mannours Lands c. holden of any other person in Soccage or of the nature of Soccage and not having any Mannours Lands c. holden of the King or any other by Knights-service shall have power to give will dispose and devise as well by his last Will and Testament in writing as otherwise by any Act executed in his life all such Mannours Lands c. or any of them at his pleasure Howbeit all such Primer Seisins Reliefs Fines for Alienations and all other rights and duties for Tenures in Soccage or in the nature of Soccage in chief as have been heretofore used are saved to the King and the said Mannours Lands c. are to be
taken had and sued out of the Kings hands by the person or persons to whom they shall be so disposed willed or devised in like manner as hath been used by any Heir or Heirs before the making of this Statute Every person having Mannours Lands c. of Estate in Inheritance holden of the King in chief by Knights-service or of the nature of Knights-service in chief hath power by his last Will in writing or by any other Act executed in his life to give dispose will or assign two parts thereof in three parts to be divided or else so much thereof as shall amount to the yearly value of two parts thereof in three parts to be divided in certainty and by speciall divisions that it may be known in severalty for the advancement of his Wife preferment of his Children and payment of his debts or otherwise at his pleasure Here also the custody Wardship and Primer Seisin or any of them as the case shall require of as much of such Mannours Lands c. as shall amount to the clear yearly value of the third part thereof as also all fines for Alienations upon such alteration of the Free-hold or Inheritance are saved to the King Every person having Mannours Lands c. of Estate of Inheritance holden of the King in chief by Knight-service and having other Mannours Lands c. holden of the King or any other by Knight-service or otherwise hath power to give dispose or will or assign by Will in writing or otherwise by Act executed in his life two parts thereof in three parts to be divided or so much thereof as shall amount to the yearly value of two parts thereof to be severed as aforesaid for the advancement of his Wife preferment of his Children and payment of his Debts or otherwise at his pleasure Here likewise the Custody Wardship Primer Seisin and Fines for Alienation are saved to the King as before Every person having Mannours Lands c. of estate of Inheritance holden of any other Lord by Knight-service and other Lands in Socage or of the nature of Socage may give dispose assure by will or otherwise by Act executed in his life two parts of the Knight-service Land or so much thereof as shall amount to the yearly value of two parts as aforesaid and also all the Socage Land at his pleasure saving to such Lord for his Custody and Wardship so much of the Knight-service Land as shall amount to the yearlyly value of the third part thereof Every person having Mannours Lands c. holden of the King by Knight-service and not in chief or any Mannours Lands c. holden of the King by Knight-service and not in chief and other Mannours Lands c. holden of any other person by Knight-service and also other Mannours Lands c. holden of any other person in Soccage or in the nature of Soccage may give dispose will devise and assure by his last Will or otherwise by Act executed in his life two parts of the said Knight-service Land or so much thereof as shall amount to two parts of the yearly value thereof as aforesaid all the Soccage Land at his will and pleasure Howbeit here also the Custody and Wardship of so much of the said Knight-service Mannours Lands c. as shall amount to the yearly value of the third part thereof are saved to the King and other Lords respectively and if the King or other Lord have not in this case a full third part set out for them they may respectively take into their possession so much of the other two parts as will make it a full third part Provided that all persons shall sue Liverie for Possessions Reversions or Remainders and pay Reliefs and Heriots as they did before the making of this Act. Fines for Alienations shall be paid in Chancery upon Writs of Entry in the Post for common Recoveries suffered of any Mannours Lands c. holden of the King in chief in like manner as upon Alienations of such Mannours Lands c. by Fine or Feoffment Howbeit no other Fine shall be paid there for any such Writs but only such Fines for Alienations Where two or more hold any Mannours Lands c. of the King by Knight-service joyntly to them and their Heirs of one of them and he that hath the Inheritance dieth his Heir being within age the King shall have the Ward and Marriage of such Heir the life of Free holder or Free holders notwithstanding saving to every Woman her Interest of Dower in such Lands to be assigned out of the two parts thereof severed from the third part as abovesaid and not otherwise and saving also the King the Reversions of all such Tenants by joynt-joynt-Tenure and Dower after the death of such Tenants in case they happen to die during the Nonage of the Kings Ward CHAP. LIV. Matrimony and Marriage ALl Marriages shall be adjudged lawfull which are not prohibited by Gods Law What marriages shall be lawfull Spirituall persons may marry 32 H. 8.38 All Laws Canons Constitutions and Ordinances which prohibit Marriages to spirituall Persons who by Gods Law may marry and all forfeitures therein shall be void 2 3. E. 6.21 Bigamus is Felony A Bigamus shall suffer death as a Felon unless he or she have had no notice that the Husband or Wife was living within seaven years before or the Marriage be severed by Divorce This Felony shall cause no corruption of blood Bigamy causeth no corruption of blood c. or loss of Dower or inheritance 1 Jac. 11. CHAP. LV. Of Voucher VOucher is when a Praecipe quod reddat of Land is brought against a man What Voucher is and another ought to Warrant the Land to the Tenant then the Tenant shall Vouch him to Warranty and thereupon he shall have a Writ called Summoneas ad Warrantizandum And if the Sheriff return that he hath nothing by the which he may be Summoned then there shall go forth a Writ called Sequatur sub suo periculo and when he cometh he shall plead with the Demandant and if he come not or if he come and cannot barre the Demandant then the Demandant shall recover the Land against the Tenant and the Tenant shall recover as much Land in value against the Vouchee and thereupon shall have a Writ called Capias ad valentiam against the Vouchee CHAP. LIV. Voucher and Connter-Plea of Voucher WHen any demandeth Land against another A Tenant impleaded voucheth the vouchee denieth the Warranty and the party that is impleaded Voucheth to Warranty and the Vouchee denieth his Warranty in this case like as the Tenant should loose the Land in Demand in case where he Vouched and the Vouchee could discharge himself of the Warranty In the same wise shall the Vouchee loose in case where he denieth his Warranty and if it be found and tryed against him that he is bound to Warranty And if an Enquest be depending between the Tenant and the
as is agreed between the Landlord and the Tenant and when the person to whom such Lease is made doth enter by force of the said Lease and is in possession of the same then he is called a Tenant for terme of years And here ye shall note that if the Lessour that made the Lease Rent reserved hath reserved unto him a yearly Rent upon the said Lease as it is accustomably used to be done if the Rent be behind and unpaid it shall be in his lection either to enter and distrain for the Rent Action of Debt or to bring an Action of Debt against the Tenant for the arrerages of the same A good Plea But in this case it is requisite that the Lessour were seized of the Lands or Tenements at the time of the making of the Lease for otherwise it shall be a good Plea in the Action of Debt for the Tenant to say the Lessour had nothing in the Lands and Tenements at the time of the Lease made except the Lease were made by Deed indented for then the Plea shall not be in the Tenants mouth to plead And it is to be known Livery of Seisin needeth not in a Lease for terme of years that in a Lease for terme of years whether it be by Deed or without Deed there need no livery of seasin to be made to the Lessee but he may enter when he will by virtue of his Lease without any further ceremony of the Law And if a man leaseth Lands for terme of years though the Lessour chanceth to die before the Lessee doth enter yet he may enter well enough otherwise it is where livery of seisin is to be made as in Free-holds and inheritances Also if the Tenant for years doth waste Waste the Landlord may bring an Action of Waste against him and shall recover the place wasted and his treble damages Also if a Lease for years be made of two severall things and after the one is recovered the Lessee shall hold the other and the rent or farme shall be apportioned M. 12. H 8. Also if the Tenant for years granteth a greater estate in the Land then he hath himself whereby he conveyeth the fee-simple to himself Forfeiture he shall forfeit his Lease or terme CHAP. VI. Tenant at Will TEnant at will is he to whom Lands or Tenements be leased to have and to hold the same at the will of the Lessour and in this case the Lessour may put out his Tenant at what time he listeth but yet nevertheless if the Tenant have sowed the grounds with Corn in this case if the Lessour will enter and put out his Tenant before harvest the Law will give him free coming and going to reap and carry his Corn away without any punishment or damages to be sustained for his so doing because he knew not at what time the Lessour would enter but otherwise it is of Tenant for certain terme of years for if he soweth the ground and his terme of his Lease be come out and expire before the Corn be ripe in this case the Lessour or he in the reversion may enter and take the Corn because it was the folly of the Tenant to sowe the ground knowing the end of his terme So likewise Tenant at will shall have free coming and going after the time of the Lessours entry to carry away his houshold stuff and goods for a reasonable space Ye shall also understand that he that maketh a Lease at will may reserve an annual or yearly rent Distress or action of Debt in which case if the rent be behind he may enter very well and distrain the Goods and Chattels of the Tenant or at his election he may bring an Action of Debt against him Also it is to be known that a Tenant at will of a House or Tenement is not bound by the order of the Law to sustain and repair the Houses that be decayed and ruinous as is the Tenant for years and therefore no Action of Waste lieth against him Waste yet if he will do wilfull waste as if he plucketh down the Houses or cutteth down the Trees it hath been thought by the Sages of the Law that the Lessour may bring an Action of Trespass against him and shall recover his losses thereby sustained And if such a Tenant die and his Heir enter in that case the Lessour may have an Action of Trespass against the Heir for his entrie Trespass CHAP. VII Tenant by Copy or Court-Roll THere is another kind of Tenant at Will which is called Tenant by Copie of the Court Rolles and this is when a man is seised of a Mannour within which it hath been used time out of minde that the Tenants within the bounds and precinct of the said Mannour have holden Lands and Tenements to them and to their Heirs in fee-simple see-taile or for terme of life at the will of the Lord according to the custome of the Mannor and such a Tenant cannot alien or sell his Land by his Deed for if he doe the Land or Tenement that is so alienated and sold is forfeit into the Lords hands but if he will alien his Copyhold-Land to another he must according to the custome come into the Lords Court Surrender and there surrender it into the Lords hands to the behoof and use of him that shall have the Estate the form of which Surrender is commonly used to be thus Ad hanc curiam venit A. de B. sursum redidit in eadem curia unum mesvagium The form of a Surrender c. in manus Domini ad usum C. de D. heredum suorum vel heredum de corpore c. Et super hoc venit praedictus C. de D. eripiet de Domino in eadem curiâ mesvagium praedictum habendum tenendum sibi c. ad voluntatem Domini secundum consuetudinem Manerij faciend inde redditus servitia consuetudines inde juris debita censuetas c. dat Domino pro fine c. fecit Domino fidelitatem These as I said be called Tenants by Copy of Court Roll because they have none other Evidence to shew concerning their Lands save only the Copies of the Rolls of their Lords Court Neither can these Tenants sue or be sued for such Lands but in the Kings Court by Writ or otherwise but if they will in any wise implead or sue others for such Copie Lands they must do it by way of plaint in the Lords Court after this form A. de D. queritur versus C. de D. de placito terrae The form of the Plaint videlicet de uno mesvagio 46 acris terrae 4 acris prati c. cum pertinentiis facit protestationem sequi quaerelam istam in natura brevis Domini Regis assisae mortis antecessoris ad communem Legem pol ' c. Plegij de prosequendo F.O. c. Now although
take her to this endowment at the Church door she cannot have her Dower also by the Common Law of the third part of her Husbands Lands or any part or parcell of them Howbeit if she will refuse this Assignment made unto her at the Church door and demand Dower at the Common Law she may so do v ry well A man may also endow his Wife at the time of the Espousals of his own Lands the which he hath by his own possession and that Dower is called Dower ad estium Ecclesiae that is to say at the Church door Dowment ad ostium Ecclesiae Dowment de la plus beale part Dowment de la plus beale part that is to say dowment of the fairest part shall be in this case when a man is seized of Lands which he holdeth of another man by Knights-service and of other Lands which be of Socage tenure and hath Issue which is within the age of fourteen years and die and the Lord of whom the Land is holden by Knight-service entreth in the Land holden of him and the mother of the Child entreth into Socage tenure as Guardian in Socage if in this case the woman will bring a Writ of Dower against the Lord which is Guardian in Chivalry he may plead the speciall Matter and shew how she is Guardian in Socage and hath so much Land and thereupon pay the Court that she may be suffered to endow her self of so much Land being in her own custody as amounteth to the third part of the whole Lands And then the judgment shall be That the Guardian in Chivalry shall retain the Land holden of him quit from 〈◊〉 woman during the nonage of the Ward after which Judgment and Sentence given she may go and in the presence of her neighbours endow her self of the best part of that which is in her custody amounting to the third part of the whole and then is she called Tenant in Dower de la plus beale Finally ye shall understand An. 27. H. 8. That by a Statute made in the 27. year of our most dread Soveraign Lord King Henry the Eight it is enacted That where divers Persons have Estates made to them and to their Wives and to the Heirs of the Husband or to the Husband and Wife and the Heirs of their two bodies begotten or the Heirs of one of their bodies or for terme of both or one of their lives or any other Persons and their Heirs to the use of the Husbrnd and Wife or to the Wife alone for her Joynture in every such case the Woman shall not be suffered to demand any Dowrie of the residue of her Husbands Lands of whom she hath Joynture against any Tenant of the Land but in case she hath no such Joynture then may she demand her â—â—wrie after the course of the Common Law Provided nevertheless that if such Women be lawfully expulsed from their Joynture or any part thereof without fraud or covin then shall they be endowed of the residue of their Husbands Lands for as much as the Lands shall amount unto out of which they were so expulsed and put forth Provided also That if Lands or Tenements be assured to any Woman after marriage for terme of life or likewise in Joynture except it be by Act of Parliament and the Wife over-live her her Husband in whose time the Joynture was made in this case the Wife may refuse the Lands so appointed unto her in Joynture and have her Dower at the Common Law of such Lands as her Husband was seized of at any time during the coverture Also if the Husband committeth Treason Murder or Felony for which he is attainted the Wife shall not have her Dower And note That if the Husband enter into Religion and is professed the Heir shall enter into the Land but the Wife getteth no Dower till the Husband dieth M. 32. E. 2. And likewise if a man seized of Land taketh a Wife that is an Alien born and dieth she shall not be endowed except she be made Denizon by Act of Parliament T. 3. H. 6. And note That where the Wife bringeth a Writ of Dower and recovereth her right she shall recover no damages but where her husband died seized of the Lands recovered CHAP. XII A division of Inheritance HItherto have I spoken of Free-holds Damages now it remaineth to treat of Inheritances not the Inheritances that be no Free-holds for they be Free-holds also but the other Estates of which I have hitherto treated be only Free-holds and of no higher nature whereas an Estate of Inheritance although it be a Free hold indeed yet it is not to be called by name sith it is after more excellent and greater Estate but ye shall understand that of Inheritances some be of more amplitude and excellent then other some be as that Inheritance which is pure simple and without limitation of what Heirs which kinde of Inheritance is called fee-simple but when I make a limitation of what Heirs then it is called fee-tayle and of which also be two sorts as hereafter more at large shall be declared now therefore the nature of fee-simple is set forth with our accustomed compendiousness CHAP. XIII Of Fee-simple FEe-simple is as I said the most ample and large Inheritance that can be in this Realm devised or invented Fee-simple it is that which a man hath to him and his Heirs simple without any further limitation for whether they be of his own body begotten or not so that they be the next of his kinne and within the degrees it sufficeth So then Tenant in fee-simple is he that hath Lands or Tenements whether it be by purchase or by descent to him and to his Heirs and Assigns for ever for if a man will purchase Lands in fee-simple he must needs have these words his Heirs in his purchase for these be the only words that make the Estate of Inheritance Therefore if Lands be given to a man for ever and no mention be made of his Heirs he hath an Estate but for terme of his life because these words his Heirs do lack Yet nevertheless if a man by his Testament doth devise Lands to another in such place or case where the custom or Law will serve so to do although he make no mention of Heirs but saith that he bequeaths to such a person such Lands to have and to hold to him and to his Assignes for evermore here an Estate of Inheritance doth passe for in Testaments the will and intent of the Testator is to be pondered and not the formall and prescript words of the Law Also these termes in the Law frank-marriage and frank almoigne that is to say free marriage and free alms do include in the words of Inheritance And therefore if I give Lands to a man with my Daughter in frank marriage without further addition or mention of Heirs this is an estate of Inheritance as shall be declared
the Husband and his Heirs shall have the Rent of them in the remainder c. And in this case there needeth no atturnement by word because the Husband that ought to atturn accepteth the Grant of the Services the which acceptance is an atturnement in the Law CHAP. XXIV Of Service HItherunto have I briefly touched and overrun the sundry kinds and forms of Estates Now forasmuch as there is no Tenure but hath unto it some service knit and annexed it were very necessary to declare how many kinds of Services there be and what Service is due to every Tenure for the knowledg hereof ye shall understand that the principall and most common kind of service that the Tenant oweth to his Lord is called Knights-service CHAP. XXV Knights-service KNights-service includeth Homage Fealty and for the most part Escuage and whosoever holdeth his Lands by Knights-service is bound by the Laws of this Realm to do unto his Lord homage and fealty and to pay for the most part Escuage when it shall be assessed by authority of Parliament as hereafter more plainly shall be declared Homage is the most humble and reverent service that a man of free estate and condition can do for when the Tenant shall do homage to his Lord the Lord shall sit Homage and the Tenant then shall kneel down before him upon both knees holding his hands between his Lords hands and say in this wise I become your man from this day forward of life and of member and of earthly Honour How the Tenant shall do Homage and to you shall be faithfull and true and faith to you shall bear for the Lands that I claim to hold of you saving the faith that I bear unto our soveraign Lord the King And then the Lord so sitting shall kiss him But if an Ecclesiasticall person which by his order and profession hath addicted himself to the service of God in especiall What a religious Person say when she doth Homage and do homage to his Lord he shall say I do to you homage and shall be to you faithfull and true and faith to you shall bear for the Tenements that I hold of you saving the faith which I owe unto our soveraign Lord the King Also when a woman not married doth homage to her Lord What a woman shall say she shall not say I become your woman for it is not convenient that a woman should be the woman of any other then of her Husband that she shall marry but shall say even as the Ecclesiasticall person saith I do unto you homage c. And if perchance a man holdeth sundry Lands and Tenements of sundry Lords and every of them by Knights-service then in the end of his Homage making he shall say Saving the faith that I owe to our soveraign Lord the King and to mine other Lords And none is bound to do homage to the Lord unless it be such Tenant as hath in the Tenancy an estate of fee-simple or fee-tayle either in his own right or in the right of another for if a woman have Lands or Tenements in fee-simple or fee-tayle What Tenant shall do Homage which she holdeth of her Lord by Knights service and taketh an Husband and hath Issue in this case the Husband in the life of his Wife shall do homage because he hath Title to have the Lands by the Courtesie of England if he overliveth her and also he holdeth them now in his Wives right yet before Issue had between them the Homage shall be made in both their Names but if the woman dieth before any homage made in her life and the Husband keepeth still the Lands as Tenant by the Curtesie now he shall not do homage to his Lord because he hath now an estate but for terme of life Fealty is as much to say as Fidelity Fealty or faithfulness in doing whereof the Tenants shall hold his hand upon a Book and say thus How a Tenant shall do Fealty Hear you this my Lord I to you shall be faithfull and true and faith to you shall bear for the Lands and Tenements which I claim to hold of you and duly shall do to you the Customes and Services which I owe to do to you at the termes assigned as Me help God and then he shall kiss the Book but he shall not kneel as he that doth homage nor do such humble or reverent service as is before declared in Homage And ye shall observe that Homage cannot be done but to the Lord himself Diversity between Homage and Fealty whereas the Steward of the Lords Court or the Bayliff may take Fealty for the Lord. Also Tenant for term of life shall do Fealty but Homage as I said he cannot do Now as concerning Escuage that is to say The service of the Shield Ye shall understand that he that holdeth his Lands by Escuage when the King maketh a voyage Royal into Scotland for the subduing of the Scots is bound to be with the Kings Majesty by the space of twenty daies well and conveniently arrayed and appointed for the Warre And he that holdeth his Land but by the Moity of the Fee of Knights service is bound by the force of his Tenure to be with the King by space of twenty daies and so proportionably according to the rate and quantity of his Tenure But now to our institute and purpose after this Voyage Royal into Scotland in which the King goeth in Person and after his return into England again a Parliament is wont to be summoned in which shall be prescribed and assessed what every Person that held his Land by Homage and went not with the King neither by himself nor by his Deputy shall pay to his Lord in satisfaction of his not serving and according to the taxation hereof every Tenant shall pay to his immediate Lord whether it be to the King or other after the rate and portion of his Tenure If he holdeth by an whole Fee he shall pay the whole Escuage if by a Moity the half if by a fourth part of a Fee the fourth part c. And this Money thus assessed is called Scutage or Escuage for which the Lord to whom it is due may very well for the non-payment thereof distrein But here is to be noted that some Tenants by Custom used time out of mind Distress of Escuage are bound to pay but the Moity or the third part of that which shall be assessed and limited by Act of Parliament Yea Escuage Certain and the Custom is in some place that to what summe of Money soever Escuage is assessed the Tenants shall pay never but such a certain summe of Money and this kind of Escuage is called Escuage certain that is to say Where Escuage is assessed by the Parliament to a more or less summe the Tenant to pay to the Lord five Shillings and no more nor no less c. Such a Tenure is called Socage Tenure and
not Knights Service whereas the other is called Escuage uncertain Finally Escuage Uncertain ye shall understand that Escuage uncertain is alwaies adjudged to be Knights Service and draweth unto it Warde Marriage and Relief but Escuage certain is not Knights Service but is of the Tenure of Sucage as shall be hereafter more amply shewed CHAP. XXVI Of Warde Marriage and Relief EVery Knights-Service draweth unto it Warde Marriage and Relief wherefore it is now right expedient somewhat to entreat of them Ye shall therefore be admonished Warde that when the Tenant which holdeth his Lands by Knights-service dieth his Heir male being at that time within the age of twenty one years the Lord shall have the Warde that is to say the custody or keeping of the Lands so holden of him to his own use and profit till the Heir cometh to the full age of twenty one years For the Law here presumeth that till he cometh to his age he is not able to do such Service as is of his Tenure required Furthermore Marriage if such Heirs be unmarried at the time of the death of the Tenant then the Lord shall have also the Warde and the bestowing of the Marriage of him But if a Tenant by Knights-service dieth The full age of a woman his Heir Female being of the age of thirteen years or above then the Lord shall have the Warde neither of the Land nor yet of the Body of such an Heir and the reason hereof is because a woman of that age may have a Husband able to do Knights-service that is to say To wait upon the Kings Majesties Person when he goeth into Scotland with his Army Royal. But if such an Heir Female be within age of fourteen years and not married at the time of the death of her Ancester then the Lord shall have the Wards of the Land holden of him till such Heir Female cometh to the age of sixteen years by force of an Act of Parliament in the Statute of Westminster 1 Cap. 12. Note that there is a great diversity in the Law between the ages of Females Diversity of age and of Males for the Female hath these many ages appointed by the Law Age of a woman First At seven years of age the Lord her Father may distrein his Tenants for aid to marry her Secondly At nine years of age she is dowable Thirdly At twelve years she is able to assent to Matrimony Fourthly At fourteen years she is able to have her Land and shall be out of Warde if she be of this age at the death of her Ancester Fifthly At sixteen years she shall be out of Warde though at the death of her Ancester she was within the age of fourteen years Sixthly At twenty one years she is able to make alienations of her Lands or Tenements whereas the man hath but two ages the one at fourteen years to have his Lands holden in Socage The age of a man and to assent to Matrimony the other at twenty one to make Alienations Ye shall understand that by the Statute of Merton 6 Chap. it is enacted That if in case the Lord do marry their Ward to villains or others whereby is disparagement if such Heirs so married be within the age of fourteen years or such age that the said Warde cannot consent to the marriage then if the friends of this Heir complain and feel themselves grieved with this unmeet marriage the next of kinne to the Heir unto whom the Heritage cannot descend may enter into the Lands and put out the Lord which is Gardian in Chivalry And if the next Kins-man will not thus do another Kins man of the Infant may do it and shall take the Issues and Profits to the behoof and use of the Heir and yeeld account thereof unto him Account given when he cometh to his full age And there be divers other disparagements which be not expressed in the said Statute Divers Disparagements as if the Heir being within age of consent and in Ward be married to a decreped Person or Creeple as to one that hath but one foot or one hand or that is a deformed creature or having any horrible disease or continuall infirmity All these and such like be disparagements But here also ye shall understand that it shall be said no disparagement unless the Heir be so married when he is within age of discretion that is to say within the age of fourteen years For if he be of that age or above and assenteth to such marriage it is no disparagement neither shall the Lord for such marriage loose his Ward because it shall be reputed and assigned to the folly of the Heir being of age of discretion to consent to such marriage Now if the Lord then being a Gardian after to the Heir being his Ward a convenient marriage without disparagement and the Heir refuseth it Value of Marriage as he may at his choice and election very well do then the Lord shall have the value of the marriage of such an Heir when he cometh to his full age But yet if he marry himself being so in Ward against the will of his Gardein then he shall pay the double value Double value of Marriage by force of the said Statute of Merton before remembred And ye shall Note that if Lands holden by Knights-service One shall not be Ward living his Father descend to an Infant or Child within age from his Mother or from any of his Ancesters his Father being yet alive in this case the Lord shall not have the marriage of his Heir for during the life of his Father the Sonne shall be Ward to no man Finally it is to be known that he which is Gardian in Chivalry in right may before he hath seised the Ward grant the same either by Deed or without Deed to another man and then he to whom such a grant is made is called Gardein in Fait Now as touching Relief ye shall know that if a man holdeth his Land by Knights-service and dyeth his Heir being of full age the full age of the Male is twenty one years of the Female fourteen then the Lord of whom the Land his holden shall have of the Heir Relief Note ye that all Earls Barons or other the Kings Tenants holding of him in chief by Knights-service which die their Heir being of full age at the time of their deaths that is to say twenty one years of age they ought to pay the old Relief for their Inheritance that is the Heir or Heirs of an Earl for an whole Earldome 100l the Heir or Heirs of a Baron for an whole Barony an 100 Markes the Heir or Heirs of a Knight One 100 Shillings and he that hath less shall give less according to the old Custom of Fees Like Law is observed of all others that hold of any other Lords immediately Vt supra Also a man may hold Lands of a Lord
by two Knights Fees and then the Heir being of full age at the death of his Ancester shall pay to his Lord for Relief ten Pounds CHAP. XXVII Service of Castle-Guard YE shall understand that a man may hold by Knights-service and yet not hold by Escuage nor shall pay any Escuage for he may hold by Castle-Guard that is to say by service to keep a Tower of his Lords Castle or some other place upon a reasonable warning when his Lord heareth that enemies will come or be already come into England This service is also Knights-service Ground in the Law and draweth to it Ward Marriage and Relief as in all Cases the common Knights-service doth CHAP. XXVIII Of Grand-Serjeanty THere is also another kind of Knights-service which is called Grand-Serjeanty that is where a man holdeth his Lands or Tenements of the King by such service as he oweth in proper person to do as to bear the Banner of our Sovereign Lord the King or his Spear or to conduct his Host or to be his Marshall or to be the lower Carver or Butler at the Feast of the Coronation or to be one of the Chamberlains of the receipt of his Exchequer or to do like service to the King in proper person Such manner of service I say is called Grand-Serjeanty that is to say A great or high Service And the cause why it is so called is because it is the most honourable and most worthy Service that is The most high Service For he that holdeth by Escuage is not appointed by his Tenure to do any other more special Service then another is bound that holdeth by Escuage but he that holdeth by Grand-Serjeanty is bound to do some speciall service to the King Also if he that holdeth of the King by Grand-Serjeanty dieth Relief of the Tenant by Grand-Serjeanty his Heir being of full age then the Heir shall pay to the King for Relief not only a 100s as he that holdeth by Escuage shall do but moreover the clear yearly value of these Lands and Tenements which he so holdeth of the King by Grand-Serjeanty Tenure by Cornage Furthermore ye shall observe that in the Marches of Scotland some men hold of the King by Cornage that is to say blowing of a Horn to the intent to warn the men of the Countrey when they hear that the Scots or other their Enemies be coming or be already entred into England which service is also a kind of Grand-serjeanty Grand-Serjeanty therefore is as much to say in Latin as Magnum-servitium Definition of Serjeanty that is to say A great or high Service Like a Petty-Serjeanty is called Parvum servitium that is to say A little or small service But to revert again to the matter Ye shall Note that if any Tenant holdeth of any other Lord then of the King by such service of Cornage then it is no Grand-Serjeanty but yet nevertheless it is Knights service and draweth to it Ward Marriage and Relief For this is a Rule infallible That none can hold by Grand-Serjeanty but of the Kings Majesty only Rule in the Law Finally Ye shall understand that all they which hold of the King by this Service called Grand-Serjeanty do hold of the King by Knights-service and by virtue of his Tenure the King shall have of them Ward Marriage and Relief but Escuage yet he shall not have of them unless they hold by Escuage of him by express speciall words CHAP. XXIX Petty-Serjeanty TEnant by Petty-Serjeanty is he that holdeth his Land immediately of our Sovereign Lord the King by this manner of service to pay to the King yearly either a Bow a Spear a Dagger a pair of Gauntlets a pair of Spurres of Gold a Shaft or such other small things appertaining to the Warre And this service is in effect but Socage because that such a Tenant is not bound by his Tenure to go nor do any thing in his own proper person touching the Warre but only to render and pay yearly certain things to the King as a man ought to pay a Rent Wherefore this Service of Petty-Serjeanty is no Knights-service but yet ye shall note That a man cannot hold neither by Petty-Serjeanty neither by Grand-Serjeanty but of the King only CHAP. XXX Homage Ancestrell TEnant by Homage Ancestrell is he which holdeth his Land of his Lord by Homage and both he and his Ancesters whose Heir he is have holden the same Land of the said Lord and of his Ancesters time out of mind by Homage and have done unto them Homage And this is called Homage Ancestrell by reason of the long continuance which hath been by title of prescription Warranty because of Homage Ancestrel as well concerning the Tenancy in the blood of the Tenant as concerning the Lordship in the Lord. And this service of Homage Ancestrell draweth unto it Warranty that is to say if the Lord which is now in life hath once received the Homage of his Tenant he ought to warrant the same Tenant what time soever he shall be impleaded or sued for such Lands so holden of him by Homage Ancestrell Moreover such service of Homage ancestrell draweth unto it acquitall that is to say the Lord ought to acquit the Tenant against other Lords that can demand any manner of Service of the Tenancie Wherefore if in this case the Tenant which holdeth by Homage ancestrell be impleaded of his Lands and voucheth or calleth his Lord to Warrantie who cometh in by Process and demandeth of the Tenant what he hath to binde him to the Warrantie and the Tenant sheweth how he and his ancestors whose Heir he is have holden his Lands of him and of his ancestors time out of minde surely the Lord if he cannot deny this and if he hath received the Homage of such a Tenant is bound by the Law to warrant him his Land so that if the Tenant lose his Lands in default of the Lord thus vouched that is to say called to warrantie he shall recover against him as much in value of these Lands and Tenements which the Lord had at the time of calling to warranty or at any time after but if the Lord never received the Homage of his Tenant then he may very well when he is thus vouched disclaim in the Lordship or Seignory and so put out the Tenant of his warranty Wherefore ye shall note that in every case where the Lord disclaimeth in his Seigniory in Court of Record his Seigniory or Lordship is extinct and the Tenant shall hold from henceforth of the next Lord to him that thus disclaimeth Thus ye perceive that Homage ancestrell is a long continuance as well in the blood of the Tenant in respect of his Tenancy as in the blood of the Lord in respect of his Seigniory wherefore if the Tenant doth once alien his Lands to another although he purchase the same again yet he shall not hold any longer by Homage ancestrell because of his
remembred Finally Every person shall sue forth his Patent for his Livery within three Moneths next after the assignment of his Bill or else his Bill assigned to be void and of none effect Hereafter ensueth the Fees Accustomed of the Generall Liveries FIrst to the Clerks of the Petty bog for the respect of Homage and Fealty the writing and inrolling fourteen Shillings two Pence to the Lord great Chamberlaine fourtie Shillings to the Master of the Rolles three Pound to the Clerks of the Liveries for writing of the Indentures and Obligations twenty Shillings besides Councell The Fees of the special Livery accustomed to be paid by these following That is to say for the signet three Pound ten Shillings for the Privy Seal thirtie Shillings for the great Seal fourty four Shillings eight Pence to the Clerks of the Petty-boggs fourty Shillings to the Master of the Liveries Clerks fourty Shillings for inrollment of the knowledge of the Indenture twelve Shillings to the Lord great Chamberlaine of England fourty Shillings for the Writ of the Allowance for the same Livery ten Shillings six Pence And note ye that sometime in speciall Cases the Fees be more and sometime less as the case and matter doth require Hitherto have we briefly touched all kinds of Knights-Service and things incident to the same Now will we with like briefness declare the other kind of Services which commonly be comprized under the generall Name of Socage For all Lands or Tenements either they be holden by Knights-Service or else by Socage Tenure or at least by the Nature of Socage Tenure which in effect is all one Wherefore first we shall define what Socage is in the proper signification which done we shall peruse the other kinds of Services which be of the nature of Socage Tenure CHAP. XXXIII Socage SOcage is properly where the Tenant is bound to come with his Yoke that is What Socage Tenure is with his Plow to Ear and Sow a parcell of the demeane Lands of his Lord which service in antient time was very common but now by the mutuall consent both of the Lord and the Tenant it is converted for the most part into a yearly Rent howbeit the name of Socage abideth still Wherefore now all that is not Knights-service is called by the Name of Socage so that if a man holdeth by Fealty only or by Fealty and Homage For all manner of service it is but Socage Tenure For Homage alone maketh not Knights-service as I have said heretofore He holdeth in effect but by Socage Gardian in Socage Now where a man holdeth his Lands by Socage and dieth his Heir being within the age of fourteen years the Lord shall not have the Ward but the next of kinne to the Heir to whom the Heritage cannot discend shall have the Title and Wardship as well of the Land as of the Heir till the Heir come to the age of fourteen years And such tutor or Gardian is called Gardian in Socage and shall render accounts to the Heir of the Issues and Profits that he hath received of the Lands during such time deducting his reasonable Costs and Expences So that he shall not have the Wardship to his own use and profit as the Lord which is Gardian in Chivalry hath And in case the Gardian in Socage dieth before he hath made his account the Heir is without remedy because no Writ of account lyeth against the Executors but for the King only Finally Ye shall understand that when a Tenant in Socage dieth Rent the Lord of whom the Land is held shall have Relief That is to say Distress the value of the Rent that is yearly due unto him of the Tenancy beside the yearly Rent So that in effect after the death of his Tenant he shall have of the Heir two Rents save that for the Relief he may distrein forthwith but for the accustomed Rent he cannot distrein till the usuall day of payment become CHAP. XXXIV Frank-Almoign TEnant in Frank-Almoign that is to say The first foundation of Frank almoigne in free Alms is where a Bishop Deane or any Ecclesiasticall Person holdeth of his Lord in pure and perpetuall Alms And such Tenure began first in old times after this manner When a man was seised in atient times of certain Lands or Tenements in his demesne as of Fee and of the same Tenements enfeoffed an Abbot and his Covent or a Pryer and his Covent or any other Person Ecclesiasticall as a Deane of a Colledge Master of an Hospitall and such like to have and to hold the same Lands to them and to their Successors for ever in pure and perpetuall Alms or in Frank-almes in these two cases the Tenements should be holden in Frank-almoigne By force of which Tenure they that hold in Frank-almoigne after this sort be bound of right before God to make Orisons and Prayer and to do other Divine Services for the Souls of their Granters and Feoffors and for the Souls of their Heirs which be dead Tenant in Frank-almoigne shall do Fealty and for the prosperous Estate of them and their Heirs whilest they be alive and because of right they be bound to this Divine service they be discharged by the Law to do any other Prophane or Corporall Service as Fealty or such like But nevertheless such as hold their Tenements in Frank-almoigne do omit and leave undone these Divine services whereunto they be bound before God the Lord cannot distrain them nor yet compell them by any other means by the course of the Common Law but the only remedy is to complain of them to their ordinary who of right ought to compell such Ecclesiasticall persons to do the Divine service due as afore said But here ye shall note Tenant by Divine Service That if a Parson of a Church or any other Ecclesiasticall Person did before the Statutes of dissolution of Abbies Monastries c. hold of the Lord by certain Divine Service to be done as to sing Mass every Friday or placebo dirige or to find a Priests to sing Mass or to distribute in Alms 100. pence to a hundred men at such a day Distress for Divine Service in all these cases if such Divine service be undone the Lord may very well Distrain because the service is here put in certain Now as I said before that if in old time a man did Enfeoffe such Ecclesiastiall Person after such sort he should hold his Lands in Frank-almoigne but at this day it is otherwise for by reason of the Estatute called Quia emptores terrarum Westmin 3. Cap. 1. No man can Alien nor grant Lands or Tenements in Fee-simple to hold of himself So that now if a man being seized of Lands in Fee-simple granteth the same by Licence to an Ecclesiasticall Person in Frank-almoigne These words Frank-almoigne be void and the Ecclesiasticall Person shall hold them immediately of the Lord of the Feoffer by the same services that
suffereth the husband of such a wife to receive and keep still all his wives Land that she had either in fee-simple or fee-taile so long as he liveth and this is by the curtesie and urbanity of England for this thing is used in none other Country nor Region But in this it is required that the Child be vitall that is to say be born and brought forth into this world alive and therefore the common saying is and hath been that unless the Child be heard cry the Father shall not be Tenant by the courtesie for the only proof and argument of life in an Infant born is the vagite and crying Ye shall furthermore understand that unless the husband be in actuall and reall possession of his wives Lands and seized of them in her right he shall not be Tenant by the courtesie after her death And therefore if Lands descend to a mans Wife so that she is Tenant in the Law and to every mans Actions yet if the Husband have not made an actuall entrie during coverture and matrimony between them he shall not be Tenant by the courtesie for it shall be reputed and judged his folly and negligence that he would not enter in her life time Otherwise it is of Advowsons Rents Commons and such other things which forthwith when they descend be in man or in a woman without any entrie or further ceremonie in Law Note That if a Tenant by the courtesie of England will suffer or make any waste in the Lands or Tenements that he so holdeth he is punishable therefore by Action of Waste brought by him in the reversion Also it is to be known That of things that be in suspense a man shall not be Tenant by the courtesie and therefore if a man be Tenant in fee-simple of certain Land and doth intermarry with a woman that is the Seignioress or Lady of the same and hath issue by her and she dieth yet shall he not be Tenant by the curtesie of the Lordship or Seigniory because himself is Tenant of the Land and therefore the Lordship is suspended for the time for a man cannot be both Lord and Tenant of one thing but if he had not been Tenant of Land he should have had the Lordship after the death of his wife by the curtesie of England very well Also note That of a right only a man shall not be Tenant by the curtesie as if a woman sole seized in fee of Lands or Tenements be disseized and after take a husband and they have issue and she die before any reentrie be made the husband shall not be Tenant by the curtesie Note further That of a reversion a man shall not be Tenant by the curtesie as if a woman sole seized of Land in fee make a Lease to S. for terme of life after taketh a husband and they have issue and she die living the Lessee for terme of life the husband shall not be Tenant by the curtesie CHAP. XI Of Tenant in Dower TEnant in Dower is she that hath been married to a husband that was during the matrimony between them seized of Lands or Tenements in fee-simple or fee-taile which is now dead and she seized of the third part of her husbands said Lands for terme of her life for by the Common Law of the Land Dower at the Common Law if the husband be at any time during the coverture seized lawfully whether it be by purchase or by discent either in fee or in fee-taile and die his wife shall be endowed by the course of the Common Law of the third foot Dower by custome and in some places by an ancient custome she shall be endowed of the Moitie yea and though the husband were never seized actually during the coverture yet if the Lands be cast upon him by the Law so that the Law calleth him Tenant to every mans Action it sufficeth the woman to demand her dower for it were unreasonable that the negligence and slackness of entring of the husband should hurt the wives Title Otherwise it is as it is said before of Tenant by the courtesie Tenant by the Courtesie for if Lands descend to a woman covert and the husband for slothfullness or negligence doth not enter in his wives life he shall not be Tenant by the courtesie for by all Laws the wife oweth obedience and subjection to her husband and therefore she cannot compel him to enter but when Lands discend to the wife the husband only hath power to enter at his pleasure And ye shall understand that unless the wife be above the age of Nine years at the time of her husbands death she shall not be endowed by the Common Law But it is to be known A Woman shall have no Dower that a woman may by divers wayes estoppe and prejudice her self of her dower as if she commit any crime for which she is attainted of Treason Murder or felony she shall have in this case no dower notwithstanding she hath obtained her pardon Allo if after the death of her husband she taketh a Lease for terme of life of the same Lands whereof she is indowable she loseth her dower of the same Moreover if she depart from her husband and lieth in adulterie with another man and is not reconciled again to her husband without cohersion of the Ecclesiasticall power she loseth her dower after her husbands death she shall be also barred of her dower if she will withhold from the heir the Charters and Evidence concerning that Land whereof she asketh dower but none other save the Heir can withhold dower for this cause No Dower It ought not to be unknown also of what things she may demand dower and of what things not of Lands Messuages Advowsons Rent-charge Rent-services or Seigniories in gross or otherwise of Villains of Commons certain of Estovers certain of Milles and Offices or of the profit of them she is dowable but of Commons and Estovers saus number also of Annuities of Homages of things of Pleasure as of Service of paiment of Roses and semblable she shall not be endowed Note There be yet two other kinds of Dower Dowment ex assensu Patris the one is called Dowment ex assensu patris that is to say by the assent of the father and the other is called Dowment de la plus beale part that is to say of the fairest part Dowment ex assensu patris is when the Father is seized of Lands in fee simple and his Sonne which is Heir apparant indoweth his Wife at the Church door when he is espoused of parcel of his Fathers Lands with the assent of his Father in writing testifying the same assent if in this case her Husband die she may forthwith enter into the Land so assigned unto her without further procurement of process of Law although the Father of her said Husband be yet alive and in actuall possession of the Land but if she thus do and
hereafter more plenteously So likewise it is of Lands given to an House Ecclesiasticall in pure and frank alms Moreover if Land be given to a man and to his blood or unto him and to his seed he hath in both cases an estate of Inheritance for in the last he hath a fee-tayl and in the other a fee-simple for these words seed and blood and such like do imply words of Inheritance Also if Lands be given to a man and and to his Heirs males or females he hath by this gift a fee-simple because it is not expressed of what body the Issue shall come But now it is to be seen The half-blood who be said to be a mans Heirs in the Law ye shall therefore know that my Brother or Sister by the half-blood that is to wit by the Fathers side and not by the Mothers or contrariwise by the Mothers side and not by the Fathers shall never be mine Heir A Bastard shall be no Heir nor none that come of them neither my bastard can be mine Heir nor mine own naturall Father nor Mother nor Grandfather nor Grandmother can be mine Heir for it is a principle and ground of the Law A ground of the Law That Inheritance may lineally descend but ascend it cannot and therefore if I have Lands in fee-simple and die without Issue of my blood my Father cannot be my Heir but my Fathers Brother or Sister shall and then if my Unkle or Aunt die seized without Issue my Father shall have the Lands as Heir to mine Unkle and not as Heir to me for that cannot be but it may go from me to my Unkle or Aunt well enough for that is not called a lineall ascention but a collaterall descent Also ye shall understand Lineall and Collaterall descent That a lineall descent is when the descent is conveyed in the same line of the whole blood as Grandfather Father and Sonne and so down and collaterall descent is of another branch from above of the whole blood as the Grandfathers Brother or Fathers Brother and so descending And ye shall also note That by the Common Law of this Realm the eldest Sonne shall have the whole Inheritance and after him if he have no Issue the second Sonne and so forth and if I have no Sonnes but Daughters then shall all the Daughters together inherit which be called Coparteners Copartners But if I have no Issue at all neither Sonnes nor Daughters then shall my eldest Brother in heritage succeed me but if I have no Brother then my Sisters if I have any if not my Unkle by my Fathers side if the Lands be of mine own purchasing or if they descended unto me from my Father and to be short if there be none in life of my Fathers side the purchased Land shall go to my Mothers side and if there can be found no Heir neither by my Fathers side nor yet by my Mothers then shall it Escheat Escheat as they call it to the Lord of whom it was holden for every Land must needs be holden of some Lord as shall be hereafter shewed But if Lands descend unto me by my Mothers side then if I fail of Issue the Lands shall descend only to my Heirs of my Mothers side and never to mine Heirs of my Fathers side as on the contrary side if I have Lands or any Tenements by descent from my Father or his blood they shall never descend to my Heirs by my Mothers side And thus you see a great difference in this behalf Diversitie between purchased Land and Lands which descend from an Ancestour If there be three Sonnes and the middle Sonne purchase Lands and die without Issue the eldest shall have the Lands and not the youngest And it is a principle in our Law A ground of the Law That none can be mine Heir of Lands that I hold in the Fee-simple unless he be mine Heir by the whole blood that is to say both by Father and Mother for if a man have Issue two or three Sonnes by sundry Wives and the eldest purchaseth Lands in fee and dieth without Issue his half brethren I mean these that be not his Brethren both by the Fathers side and Mothers side shall not have his Land but it shall go to his Unkle Likewise if a man hath by his first Wife a Sonne and a Daughter and by his second Wife another Sonne and the Sonne by the first Wife purchaseth Lands in fee-simple and dieth without Issue the Sister-germaine that is to say both by the Fathers side and Mothers shall have the Lands by descent as Heir to her Brother and not the younger Brother for as much as the younger Brother cannot in this case be Heir of his elder Brother because he is no Brother-germane unto him Otherwise it is of Lands or other hereditaments entailed as shall be hereafter specified Also if a man be seized of Lands in fee-simple and hath Issue a Sonne and a Daughter by one Wife and after the death of his first Wife a Sonne by another Wife and dieth and the eldest Sonne entreth into the Lands and after he dieth without lawfull Issue of his body the Daughter shall have the Lands and not the youngest Sonne and yet the youngest Sonne is Heir to his Father but he is not so unto his Brother But in this case if the eldest Sonne hath not entred after the death of his Father but had died before any entrie made by him then shall not the Sister-germaine enter but the younger Brother is Heir to his Father because the eldest Brother was never in actuall possession which is requisite to the person that claimeth to be Heir collaterally But to the lineall Heirs it sufficeth that the Ancestour should have been Heir if he had lived I mean as thus a man seized of Lands and hath Issue a Sonne and a Daughter by one Wife and afterwards a Sonne by another he dieth and after his death the eldest Sonne entreth not but dieth without Issue before he can make actuall entrie here in this case his Sister shall not have the Lands as Heir to her Brother because her Brother was not in actuall possession but the younger Brother shall have them as Heir to his Father yet if the eldest Sonne in that case had left behind him Issue of his body whether it had been Sonne or Daughter this Issue notwithstanding that the Father of the Issue was never possessed either actually or in the Law shall have the Lands and shall convey his descent from his Father the cause hereof is this that the Sonne or Daughter is lineall Heir whereas the Brother Sister Unkle Aunt c. be Heirs collaterall and so ye shall observe a diversity Diversitie I call an actuall possession when a man entreth indeed into Lands which be to him descended but a possession in Law is called when Lands be descended to a person and he hath not yet really and
whence it came Yet forasmuch as the Tenant after possibility of Issue had once an Inheritance in him he shall not be punished by an Action of Waste though he make never so much waste in the Lands and Tenements whereas yet in effect he is but a Tenant for terme of life But if this Tenant doth alien in fee such Lands he in the reversion may enter for the forfeiture And this for Estates at this present time shall suffice Forfeiture but to the intent that ye may the more easily comprehend all the members of the division of Possessions and Estates which men have in Lands Tenements and other Hereditaments it shall not be evill done to set forth as it were in a Table before your eyes the division thereof which is this A Figure of the Division of Possessions Possession de Frank-tenement Selon comonley Estate Dinheritance Fee simple Fee-tayl generall speciall Frank-tenement Apres possibilitie dissue extinct Curtesie Dangl ' Dower Terme de vie Terme daut vie Selon custome que poet este divide en mesme le maner come franktenement al common ley Chattell Reall Terme daus Gard de terre Tener a volunt Personal Biens moveables CHAP. XVI Of Parceners or other Coheirs HItherunto I have made a compendious and short declaration of Estates of all sorts but where I said that among Sisters there is no prerogative or preheminence concerning the inheriting of their Ancestors Lands but that they shall be all together inheritours and make as it were but one Heir it is expedient to make a further declaration and process in this behalf and to shew how and in what manner this partition shall be made But ye shall understand Division of Parceners at the Common Law and Parceners by Custome That there be besides Parceners at the Common Law which be only Sisters also Parceners by Custome which is amongst Brothers contrary to the course of the Common Law and this custome is in some places of Rent and in other places where Lands and Tenements be of the tenure of Gavelkind Ye shall therefore kow That when a man is seized of Land in fee-simple or fee tayle and hath no issue but Daughters and die and the Daughters do enter into the Lands thus descended unto them now they be called Parceners or Co-heirs Writ de partione facienda and by a Writ called de partitione facienda brought by one of them against the others they shall be constrained by the Law to suffer an equall partition to be made of the Lands between them Now partition may be made in sundry wayes one way is when they themselves do make partition between them of the whole heritage and do agree unto the same and do enter every one into her part so allotted unto her Another way is Partition in divers manners when by all their agreements and consent one common friend doth make the partition in which case the eldest Sister shall have the first election and after her the second Sister and so forth but if they agree that the eldest Sister shall make the partition and she maketh it then the eldest shall not choose first but shall suffer all her Sisters to choose before her as it is thought There is also another form of partition which is equally to divide the Lands into so many parts as there are Co-heirs or Parceners and to write every part so divided in a severall scroule of paper and so put the said scroules in a bonet or to inclose them severally in balls of wax and then the eldest Sister to choose which ball she will or to put her hand into the bonet and take a scroule and to hould her to her chance and allotment and so consequently every Sister after other And ye shall note Nota. That Partition by agreement may as well be made by nude and bare words without writing as by writing And if any of the Parceners will not suffer any partition to be made then may the other that would have partition A writ de partritone facienda purchase a Writ called De partitione facienda against them that refuse partition to compell the same to suffer partition to be made accordingly and then by the judgment of the Court the Sheriff by the serement and Oath of twelve men shall make partition between them and shall assign to each Sister her portion as he shall think good without giving any election of choice to the eldest And if two Mannors or Meases happen to descend to two Sisters and the Mannors be not of equall value then may she to whom the less Mannor or Mease is allotted have assigned unto her a Rent proportionably out of the other Mannor for the which Rent she and her Heirs may distrain of common right though they have no writing thereof Finally ye shall understand Distress of Common Right That if a man be seized of Lands in fee-simple and hath Issue two Daughters and giveth with one of his Daughters to another man that shall marry her the third or fourth part of his Land in frank-marriage and dieth if in this case the Daughter that is in this wise bestowed and advanced will have her portion of her fathers heritage she must put her Land given unto her in frank-marriage in hochpot new again Hochpot I mean she must be contented to suffer her said Lands to be commixed and mingled with the other Lands of which her Father died seized in fee-simple so that an equall division may be made of the whole or or else she shall have no part of those Lands of which her Father died seized but if her Father had made unto her a common gift in tayl or feofment in fee she should not need to put her Lands in hochpot but may very well keep and retain them still and also have as good part of the rest of the Lands of which her Father died seized as her other sister or Sisters have Frank-marriage for a gift in frank-marriage is accounted the most free and most liberall gift that can be and that gift which the Law judgeth to be only for the advancement and bestowing of the Daughter whereas feofments in fee-simple and also common gifts in tayle be accustomarily for other causes and for the advantage rather of the giver or feoffer then of the taker And if Parceners make partition of Lands being within age that partition is void And if Parceners in fee-simple make partition and the part of the one is better then the other being of full age of 21. years then the partition is good and cannot be defeated but if it be of Lands in fee-tayle the one part being better then the other that partition may be defeated by their Heirs CHAP. XVII Of Joyntenants HItherunto briefly have we spoken of Coheirs called Parceners of the the Common Law which as is heretofore declared do come to Lands and other hereditaments joyntly by the course operation and act of
the Law Now shall we speak somewhat of them that either joyntly or severally come to Lands Tenements or other Hereditaments by their own purchase act procurement and working and of these they that come to them by joynt title way or colour be called joyntenants but they that come by severall titles wayes or colours to Lands or Tenements be named Tenants in common So then if a man being seized of Lands or Tenements Tenants in common or other Hereditaments shall thereof enfeoff two three four or more to have and to hold to them in fee-simple fee-tayle or for terme of their lives or for terme of anothers life these persons so enfeoffed and seized be called Joyntenants also also if two or more do expell and disseize another man of any Lands or Tenements to their own behoof and use these disseizors and wrong doers are now become Joyntenants because by their own act they come joyntly to this Land but if they do disseize another man to the use only of one of them in this case they be not Joyntenants but he to whose use the disseizin is made is Tenant alone of the same and the others have nothing in the tenancy but be called aydours or coadjutors to the disseizin And ye shall understand Disseisin Survivour taketh place That a Disseizin is properly where a man entreth into any Lands or Tenements there where his entry is not lawfull and putteth out him which hath the freehold of the same And ye shall further know That the nature of Joyntenancy is that he which surviveth and overliveth the other shall have to himself alone the whole and entire tenancie according to that estate which he should have had if the joynture had been continued as for example three Joyntenants be of Lands in fee-simple and the one half hath Issue and die in this case the two which do over-live their fellow shall have the whole Lands between them and the Issue of him that is departed getteth nothing and if the second Joyntenant hath Issue also and die the third which hath overlived them both shall now have and enjoy the whole to him and to his Heirs for evermore But otherwise it is of Coheirs Diversitie which in our Law are called Parceners for if there be three such Coheirs and Parceners and before any partition made the one have Issue a Sonne or a Daughter and dieth her portion shall descend and fall to his child and shall not runne amongst the other joynt-heirs or Coparceners howbeit if such Parcener or Coheir had died without Issue then should his portion have descended to his Coheirs but how not by force of surviver or overliving which in Latine is ealled jus acrescendi but by very descent for where any of the Coheirs die without Issue who can be Heir to him or her so dying but the other Coheirs to him or her so dying or the rest of the Coheirs if there be many And like as this right of survivor or overliving holdeth place amongst Joyntenants of Lands and Tenements so in like manner it holdeth place amongst them which have joynt estate or possession with others of Chattels whether they be reall or personall as for example if a Lease of Lands or Tenements be made to many for terme of certain years the overliver or overlivers shall have the whole during the terme by force of the same Lease Joyntenants of reall and personall goods so of Chattels personall if an Horse Oxe grain or other such personall Chattell be given to many he which overliveth shall have the same alone in semblable wise it is of Debts and duties for if an Obligation be made to many for one debt and of some other Covenants and Contracts the Law is likewise so Also some Joyntenants may be which may have joynt estate and be Joyntenants for terme of their lives Joyntenants of severall Inheritances and yet have severall Inheritances as where Lands be given to two men and to the Heirs of their two bodies engendred in this case these two persons have joynt estate for terme of their two lives and yet they have severall Inheritance for if the one have Issue and die the other that surviveth shall have all by force of the survivour for terme of his life and if he that surviveth hath also Issue and die then the Issue of the one shall have the half of the Lands and the Issue of the other shall have the other half and they shall hold the Land between them in common and shall not be Joyntenants but Tenants in common Tenants in common and the cause and reason why such Donees in such cases have a joynt estate for terme of their lives is for that at the begining the Lands were given to them two which words without more saying make a joynt estate to them for terme of their lives for if a man will let Land to another by Deed or without Deed not making mention what estate he hath and of this maketh livery of seisin in this case the Lessee shall have an estate for terme of his life and if he have no livery of seisin he is Tenant at will and so forasmuch as the Lands were given unto them they have a joynt estate for terme of their lives but the cause why they have severall Inheritance is this for that they cannot by possibility have an Heir between them engendred as a man and a woman may have wherefore the Law will that their estate and their Inheritance shall be such as reason will after the form and effect of the words of the gift and that is to the Heirs that the one engendred of his body by and of his Wives and to the Heirs that the other engendreth of his body by any of his Wives so it behoveth by necessity of reason that they have severall Inheritances and in such case if the Issue of one of them after the death of them both doth die so that he hath no Issue alive of his body engendred then the Donor which gave the Land or his Heirs may enter in the half as in his reversion though the other hath Issue alive and the cause is that forasmuch as the Inheritances be severall therefore the reversion in the Law is severed and the survivour of the Issue of the other shall hold no place to have the whole and as it is said of Males in the same manner it is where Lands be given to two Females and to the Heirs of their two bodies begotten Also if Lands be given to two Survivor holdeth no place and to the Heirs of one of them this is a good contenancy and the one hath a freehold and the other hath a fee-simple and if he which hath fee-simple die he that hath the free-hold shall have the whole by the Survivor for term of his life And if these two Joyntenants joyn in a gift in the tayle to a stranger reserving a Rent to him that hath an estate
but for his life this reservation is void to make a Tenure likewise it is where Tenements be given to two and the Heirs of the body of one of them engendred the one hath a free-hold and the other fee-tayle Note Rent-charge granted by a joyntenant If two Joyntenants be seized of an estate of fee-simple and the one granteth a Rent-charge by his deed to another out of that which to him belongeth in this case during the life of the graunter the Rent-charge is good and effectuall but after his decease the Rent-charge is void as to charge the Lands for he that hath the Land by the Survivour shall hold all the Land discharged the cause is for that he that surveieth claimeth to have the Land by the Surviour and not by discent of his fellow Diversitie but otherwise it is of Parcener or Co-heirs for if there be two Parceners in fee-simple and before any partition be made the one chargeth that that to him belongeth by his deed of a Rent-charge and dieth without Issue here that which to him belongeth descendeth to the other Parcener and in this case the other Parcener shall hold the Land charged because he cometh to the half by descent as heir Also if there be two Joyntenants in fee-simple within one Borough where the Lands and Tenements within the same Borough be devisable by Testament If the one of the said Joyntenants devise that which to him belongeth by Testament and die Divise by Testament this devise and legation is void And the cause is for that no devise may take effect till after the death of the Testator which bequeathed and devised the same and by his death all the Land incontinent cometh by the Law to his fellow that Surviveth by the Survivor which neither claimeth nor hath any thing in the Land by the devise but in his own right by the Survivor after the course of the Law and for this cause such a devise is void But otherwise it is of Parceners A ground of the Law seized of Tenements devisable in such case of devise for the cause above remembred and it is commonly said that every Joyntenant is seized of the Land that he holdeth joyntly per my et per tont that is throughout and by all and this is as much to say that he is seized by every parcell and by all which saying is true for in every parcell and part and throughout all the Lands and Tenements he is joyntly seized with his fellow and therefore if the one Joyntenant make a Feofment to his companion that is void because he can make no Livery of seizin to him Diversity Also if two joyntenants be seized of certain Lands in fee-simple and the one letteth that that to him belongeth to a stranger for the term of Fourty years and dyeth within the term in this case after his death the Lessee may enter and ocupy the half to him letten during the said Term though the Lessee never had possession of it in the life of the Lessour by force of the Lease Diversity between a grant of a Rent and Lease and the difference between the case of the grant of a Rent-charge and this case is this that in the grant of Rent-charge by a joyntenant the Lands or Tenements abide alway as they were afore without that that any hath right to have parcell of the Tenements but themselves and the Tenements abide in such pitty as they were before the Charge but where a Lease is made by a Joyntenant to another for term of years incontinent by force of the Lease the Lessee hath right in the same Land that is to say of all that that to his Lessour belongeth by force of the same Lease during his term and if the Lessor in this case die the other joyntenant shall have the Rent or Term during the said Term because the reversion is come to him by Survivor Finally if a joynt estate be made of Land to the Husband and Wife and to the third person in this case the Husband and the Wife have not in the Law in their right but the half and the third person shall have as much as the Husband and the Wife have that is to say the other half and the cause is for that the Husband and Wife be but as one person in the eye of the Law and it is here in like case as if an estate be made to two joynt-Tenants where the one hath by force of the Joynture the one half and the other the other half in semblable wise it is where an estate is made to the Husband and Wife and to other two men in this case the Husband and the Wife have not but the third part and the other two men the other two parts Also if two or three together disseiseth another of Lands and Tenements to their own uses then such disseisors be called Joyntenants More shall be said of this matter touching Joyntenants in the next Chapter CHAP. XVIII Tenants in Common TEnants is Common as I said before be they that have Lands or Tenements in fee-simple fee-tayle or for term of life which have such Lands and Tenements by severall Titles and not by one joynt Title and none of them knoweth that which is severall to him and in this case they ought by the Law before partition made between them to occupy such Lands and Tenements in common and undevided and to take the profits in Common and because they come to such Lands and Tenements by severall Titles and not by one self joynt Title and their ocupation and possession in the same is among them in Common they be called Tenants in Common or Tenants pro indiviso as for example If a man Enfeoff two Joyntenants in fee-simple and the one of them alieneth that that to him belongeth to another in fee now the other Joyntenant and he to whom the Alienation was made be Tenants in Common for that they be seized of such Tenements by severall Titles for the one cometh to the one half by the Feoffment of the Joyntenant and the other hath the other half by force of the first Feoffment made to him and to his first fellow and so they be in by severall Titles and by severall Feofments And it is to wit Diffinition of fee only that when it is said in any Book that a man is seized in fee without more saying or addition it shall be understood fee-simple for it shall not be understood by such a word in fee that a man is seized in fee-tayle except there be put in it such addition in tayle Also if three joyntenants be Joyntenants and the one of them alieneth that which unto him belongeth to another in fee in this case the alience is Tenant in Common with the other two Joyntenants But yet the other two Joyntenants be seized of the two parts Joyntly and of these two parts the Survivor between them holdeth place
Also if there be two Joyntenants in fee and the one giveth that that unto him belongeth to another in the tayle the Donee and the other Joyntenant be Tenants in Common but if the Lands be given to two men and to the Heirs of their two bodies engendred the Donees have a joynt estate for term of their lives and if each of them have Issue and dye their Issues shall hold in Common Also if Lands be given to two men to have and to hold the one half to the one and to his Heirs and the other half to the other and to his Heirs they be Tenants in Common Also if a man seized of certain Lands enfeoffeth another in the half of the same Land without any speech of assignement or limitation of the same half in severalty at the time of the Feofment then the Feoffee and the Feoffour shall hold their parts of the Land in Common And as it is of Tenants in Common of Lands or Tenements in fee-simple fee-tayle even so it is of Tenant for term of life Therefore if two joyntenants be in fee Joyntenants and the one letteth to a man that that unto him belongeth for term of life and the other Joyntenant letteth that which to him belongeth to another for terme of life also these two Lessees be Tenants in common for terme of their lives Also if a man let Lands to two men for terme of life and he to whom the one granteth all his estate to another then that other Tenant for terme of life and he to whom the grant is made shall be Tenants in common during the time that both the Lessees be alive Note If there be two Joyntenants in fee and that one letteth that that unto him belongeth to another for terme of life the Tenant for terme of life during his life and the other Tenant that did not let be Tenants in common And upon this Case a Question may arise as thus Let the Case be that the Lessour hath Issue and dieth living the other Joyntenant his fellow and living the Tenant for terme of life the Question is Question Whether the Reversion of the half that the Lessour hath shall descend to the Issue of the Lessour or whether the other Joyntenant shall have it by the survivour or no And some have said that the other Joyntenant shall have the Reversion by the survivour forasmuch as when the Joyntenants were joyntly seized in fee-simple though one of them made an estate of that that unto him belongeth for terme of life and though he hath severed the frank-tenement of that that to him belongeth by the Lease yet he hath not severed the fee-simple But the fee-simple abideth to them joyntly as it was before and so it seemeth unto them that the other Joyntenant which surviveth shall have the Reversion by the survivour But other have thought the contrary and this is their reason when one of the Joyntenants letteth that which unto him belongeth to another for terme of life by such Lease the Franktenement is severed from the Joynture so that the reversion that is dependant upon the same Frank-tenement is severed from the Joynture furthermore if the Lessour had reserved to him a yearly Rent upon the Lease the Lessour only should have the Rent which is a proof that the reversion is only in him and that the other hath nothing therein Also if the Tenant for life were impleaded and make default after default Recie the Lessour shall be only hereupon received to defend his right and not his fellow which proveth the reversion of the half to be only in the Lessour and so consequently if the Lessour die living the Lessee for terme of life the reversion shall descend to the Heirs of the Lessour and shall not come to the other Joyntenant by the survivour after these mens opinions yet it is doubtfull But in this case Quere if the Joyntenant that hath the franktenement have Issue and die living the Lessour and the Lessee then it seemeth that the Issue shall have the half in his demesne as of fee by descent forasmuch as the franktenement may not by nature of the Joynture be annexed to a reversion and it is certain that he that made the Lease was seized of the half in his demesne as of fee and that none shall have any Joynture in his franktenement so that this shall descend to his Issue If three Joyntenants be and the one releaseth by his Deed to one of his fellows all the right he hath in the Land Release then hath he to whom the Release is made the third part of the Lands by force of the Release and he and his fellow shall hold the other two parts joyntly and as to the third part that he hath by force of the Release he holdeth it with himself and his fellow in common And it is to wit that sometime a Deed of Release shall take effect to put the estate of him that made the Release in him to whom the Release is made as in the case aforesaid Also if a joynt estate be made to the Husband and Wife and to a third person and the third person releaseth his right that he hath to the Husband then hath the Husband the half which the third person had and the Wife of this hath nothing semblably if the third person had released to the Wife not naming the Husband in the Release then should the Wife have the half that the third person had and the Husband nothing of this but in the right of his Wife because such Release shall enure to put the estate in him to whom it was made of all that that belongeth to him that made the Release Again In some case a Release shall enure and serve to put all the right that a man hath that made that Release in him to whom it is made As a man being seized of certain Lands is disseized by two disseizors if the person disseized by his Deed release all his right to one of the disseizors then he to whom the Release is made shall have and hold all to him alone and put out his fellow out of the occupation of it And the cause is Disseisors for that the two disseizors were seized by wrong by them done against the Law and when one of them getteth the Release of him that hath right to enter this right resteth in him to whom the Release is made and in such plite as if he that had the right had entered and enfeoffed him of the same and the cause is for that he that before had an estate by wrong hath now by the Release a rightfull estate And in some case a Release shall enure and take effect by way of extinguishment Release by way of extinguishment and such a Release shall help the Joyntenant to whom the Release was not made as well to him to whom it is made as if a man be disseized and
the grant is made and the other shall hold and Occupie in Common Also if two Joyntenants have the Ward of the Body Joyntenants of a Wa d. and of the Lands of an Heir within age and the one of them granteth to another that that unto him belongth of the same Ward then he to whom the grant is made and the other that granteth not shall have and hold it in Common Of Chattels Personalls as if two have a joynt estate either by gift or by buying of an Horse or of an Oxe or such like and the one of them granteth that that to him belongeth here shall the grantee and he that granteth not have and possess such Chattels personall in common And in such case where divers persons have Chattels reals or personals in common and by divers Titles if one of them die the other that surviveth shall not have his fellows part by the survivour but the Executors of him that dieth shall hold and occupy it with him that surviveth in like form as their Testator did or ought in his life forasmuch as their rights and Titles were severall also in the Case aforesaid if two have an estate in common for terme of years and the one doth occupy all and put the other out of his possession and occupation then shall he that is put out have against the other a Writ de Ejectione firmae for the half A Writ de ejectione firmae in semblable manner where two hold the Ward of Lands or Tenements during the nonage of a Childe if one shall put out the other of his possession he that is out shall have a Writ Ejectione custodiae De ejectione custodiae of the half because these things be Chattells Realls and may be opportionted and severed but no Action of Trespass lieth for one against the other as for example quare olausum fregit herbam suam conculcavit consumpsit nor such like Actions forasmuch as each of them may enter and occupy in common but if two be possessed of Chattels personall in common by divers Titles as of an Horse an Oxe or a Cow if the one take it all to himself out of the possession of the other the other hath none other remedy but to take it again from him that hath done him the wrong when he may see his time In like manner of Chattels realls which may not be severed as in the case aforesaid where two be possessors of the wardship of the body of a Childe within age if one of them shall take the Childe out of the possession of the other the other hath no remedy by any Action at the Law but to take the Childe out of the others possession when he seeth his time Finally ye shall understand Form of Pleading That when a man in pleading and declaring his Cause will shew a Deed of Feoffment made unto him or a gift in fee-tayle or a Lease for terme of life of any Lands or Tenements he shall use his termes in this wise and say By force of such Feoffment Gift or Lease he was seized c. But where a man will declare or plead a Lease or Grant made unto him of a Chattell reall or personall then he shall say By force of which he was possessed CHAP. XX. Of partition to be made by Joyntenants and Tenants in Common enacted by two Statutes made the one in An. 31. H. 8. and the other in 32. H. ALl Joyntenants and Tenants in Common of any estate of Inheritance in their own rights or in the right of their Wives of any Lands or Hereditaments within this Realm of England Wales or the Marches of the same shall and may be compelled to make partition between them of the same which they so hold as Joyntenants or Tenants in common by a Writ de partitione facienda Writ de partitione facienda to be devised in the Chancery in like manner as Coparceners are compelled to do and the same Writ to be pursued at the Common Law Aide prayed And after such partition made every of the said Joyntenants and Tenants in common shall and may have aide of the other or of their Heirs to the intent to dereigne the warranty paramount and to recover for the rate as is used between Coparceners after partition made by the order of the Common Law Item In the thirty second year of King Henry the eight Chap. 32. it is further enacted That all Joyntenants and Tenants in common which hold joyntly or in common for terme of life year or years or Joyntenants or Tenants in common where one or some of them have an estate for terme of life or years with other that have an estate of Inheritance or free-hold in any Lands or other Hereditaments shall be compellable by Writ of Partition to be pursued out of the Chancery upon their Cases to make severance and partition of all such Lands and Hereditaments as they hold joyntly or in common for terme of life or lives year or years or where one or some of them hold joyntly or in common for terme of life or years with other that have an estate of Inheritance of free-hold Provided that no such partition nor severance be hurtfull to any person other then such as be parties unto the said partition their Executors or Assignes CHAP. XXI Of Conditions FOrasmuch as every Estate is either pure or conditionall it were not amiss to make some declaration of the nature and efficacy of Conditions Wherefore ye shall understand that of Conditions some be actuall conditions and be called express Conditions or Conditions indeed and other some be Conditions in Law which be called in Latine Conditiones tacitae sive Conditiones implicitae because they be secretly implied by the Law and not expressed Conditions indeed be such as be knit and annexed by express words to the Feoffment Division Lease or Grant either in writing or without as for example if I infeoff a man of certain Lands reserving to me and to my Heirs so much Rent yearly to be paid at such a Feast and for default of payment that it shall be lawfull for me to reenter this is a feoffment upon condition of payment And here the reenter of the feoffor for the not payment of the Rent shall dissolve and utterly defeat the feoffment Semblamble it is of Gifts in tayle Leases c. but if the Condition be that for default of payment of the Rent it shall be lawfull for the feoffor to enter again into the Lands and to hold them till he be contented and satisfied of the Rent this Condition not performed doth not dissolve nor undoe the feoffment but only giveth to the Feoffor an authority to retain the Lands as it were by way of Distress till he hath levied the arrerages of Rent Distress And ye shall well mark and observe That Conditions be sometime made to be performed on the Feoffees behalf and sometime on the Feoffors behalf
discontinuance but shall hold now by the vulgar and accustomed Homage CHAP. XXXI Of Liveries WHen one dieth which held of the King by Knights-service in Capite that is to say in chief Tenant in chief of the King his Heirs being within age the King as before is declared shall have the wardship and custody as well of the Lands as of the body that is to wit the marriage if he be unmarried but if the Heir be of full age at the time of the death of such ancestor yet shall the King by his Prerogative royall have primer Seisin of all the Lands Tenements Primer seisin and other Hereditaments whereof such his Tenant was seized in his demeane as of see Intruder upon the Kings possession And if such an Heir will enter into his Lands when he cometh to his full age before he sue his Livery and receive Seizin by the King no Freehold shall accrew nor grow unto him but he shall be deemed an intruder into the Kings possession yea and if he die so seized in the mean time his Wife shall have no Dowrie of such Lands wherefore it behoveth in any wise that such Heir as well male as female coming to full age before he or she enter into their Land to sue Livery the manner and form whereof according to the Act of Parliament lately promulgated and set forth I intend briefly to recite CHAP. XXXII How Heirs ought to sue their Liveries enacted 33 H. 6. Cap. 21. NO Person or Persons having Lands or Tenements about the yearly value of five Pound Writ Diem clausit extremum shall have any Livery before Inquisition or Office found before the Eschetor or other Commissioner by virtue of the Kings Writ of Diem clausit extremum or Commission directed out of the Chancery or other Courts having authority to make such a Writ or Commission which shall not pass out of the same but by Warrant or Bill assigned and subscribed by the Master of Wards or Liveries the Surveyor Atturney and recoverer of the said Court or three two or one of them to be directed and delivered to the Chancellor of England or to any other Chancellor or Officer having power to awarde such Writs and for the writing and sealing of the same shall be paid of the accustomed Fees But if the Land exceed not the said yearly value of five Pounds then they shall pay for the Seals of every such Writ or mission eight Pence and for the Comwriting six Pence and not above And the Inquisitions and Offices hereupon found shall be returned by the said Escheters or Commissioners into the same Court from whence the Writ or Commission was awarded which done the Clerks of the Petty-bogg shall receive the same Offices and and make a Transcript thereof to the Master of the Wards and Liveries And then the said Master and the Surveyor Atturney and generall Receiver or three of them whereof the Master or Surveyor to be one shall Covenant and Indent with such Persons for their Livery of the Castles Mannours Lordships Lands Tenements and Hereditaments comprized or not comprized in such Offices and shall make and set a rate and price of the same and appoint the daies of payment thereof by Obligation to be taken for the same to the King And every Bill for any speciall or generall Livery assigned by the hands of the said Master Surveyor Atturney Receiver or three of them whereof the Master or Surveyor to be one shall be Warrant sufficient to the Lord Chancellor or other Officer having power to pass Liveries under any of the Kings Seals accordingly In which case the Clerks of the Petty-bogge or other Clerks by whom the Liveries be written shall receive as well for themselves as for other such Fees as hath been accustomed Item Generall Livery Every person may sue at his pleasure a generall Livery for any Mannours Lands Tenements Rents Reversions Remainders or other Hereditaments whereof the clearly yearly value shall not exceed twenty Pounds provided that an Office be thereof found and a Warrant first obtained of the said Master and others as is aforesaid And where such generall Livery is sued if the Lands exceed the yearly value of five Pounds they shall pay for the Seal twenty Shillings four Pence and all other Fees accustomed as afterwards shall be declared But if they exceed not the yearly value of five pound they shall pay but these Fees following that is to say for the Seal of the Livery twelve Pence to the Clerks of the Petty-bogge for the writing and the inrolling twenty Pence for the respect of the Homage in the Hanapar eight Pence to the Lord great Chamberlaine twenty Pence to the Master of the Rolles twenty Pence and the Clerk of the Liveries for the Warrant and Inrolling of the Livery twenty Pence Item Respect of Homage No person or persons shall pay in the Exchequer or any other Rents for the respect of Homage for any Lands or Hereditaments not exceeding the yearly value of five Pound above eight Pence and for the entering thereof and Warrant of Atturney above four Pence And the value of such Lands and He-Hereditaments not exceeding the yearly value of twenty Pound shall be taken as it is limited in the Offices founden thereof except by the examinations and Certificate of the said Master Surveyor Atturney and Receiver or three of them It shall otherwise appear and be declared in any of the Kings Courts Also no Eschetor shall sit only by virtue of his Office for the inquiry of the Tenure Title or value of any Lands or other Hereditaments holden of the King being of the yearly value of five Pounds Paines of forfeit or above without the Kings Writ to him directed upon pain to forfeit five Pound for every time he shall so do neither shall he take for the finding of any Office of Lands Fees of Office not exceeding the yearly value of five Pound above fifteen Shillings That is to say six Shillings eight Pence for his own Fee and three Shillings four Pence for the writing of the Office and for the Charges of the Jury three Shillings and for the Officers that shall receive the Offices in any Court of Record two Shillings upon pain that the Eschetor doing otherwise shall for every time forfeit five Pound And upon like pain the Officers of every Court of Record where such Inquisitions shall be returned being offered unto them within one Moneth next after the finding thereof shall receive them the one Moity of all with forfeitures to the King and the other to the Party that will sue for the same c. And they which hereafter shall be in case to sue Livery whose Lands and Tenements exceed not the yearly value of five Pound may lawfully sue forth that general Livery by Warrant from the said Courts as is aforesaid although none other Inquisition be thereof had nor certified paying nevertheless the Fees above
the Feoffer and the Feoffee otherwise it is of Feoffments in Fee simple made before the Statute of Westminster the third Cap. 1. called Quiae emptores terrarum For before the making of that Statute if a man had made a Feoffment in Fee-simple reserving to him a certain Rent yet though it had been without Deed here had been begun and Created a new Tenure between the Feoffor and the Feoffee and the Feoffee should have holden of the Feoffor who by virtue of the same might of Common right have distrained for such Rent but at this day by force of the said Act there can be no such holding or Tenure Created or begun and consequently no Rent-Service can be at this day reserved upon any gift in Fee-simple except it be in the Kings case who being chief Lord of all ever might and may give Lands to be holden of him thus ye see that at this day no Subject can reserve any Rent Service unto him unless the reversion of the Lands or Tenements that he shall grant be still in him as where he granteth them in Fee-tayle or maketh but a Lease for term of life or for certain years or else at Will For in all these cases the reversion of the Fee-simple remaineth still in him and therefore if there be any Rent reserved it is to be called a Rent-Service and is of Common right distrainable though there be no Clause of distress in the Deeed of Feoffment or Lease But here ye will ask me when in the case before remembred a man at this day giveth clean away the Land or Tenement from himself in fee-simple so that there is no manner of Reversion of the same remaining in him at all and yet nevertheless reserveth unto him by his deed a certain Rent what manner of Rent shall this be called I answer if there be in the Deed indented any clause of distress Charge that is that if the Rent be behind unpaid it shall be Lawfull for the Feoffour to enter and to distrain it is called a Rent-charge for as much as the Land is charged therewith but how of Common Right no but only by virtue and force of the wriing but on the other side if there be no such Clause of distress put in the Indenture then the Rent so reserved shall be called a Rent secke Likewise if a man that is seized of certain Land will grant either by Indenture or by Deed-poll that is to say single and not indented a Yearly Rent out of the same Lands to another whether it be in the Fee-simple Fee-tayle for term of Life for Years or at Will with Clause of distress then this Rent is called a Rent-Charge and he to whom such Rent is granted may for default of Payment thereof enter and distraine But contrary if the grant be made without any such Clause of distress it is called a Rent-seck that is to say a drie Rent because he cannot come to it in Case it be deemed by way of distress Insomuch that if he were never seized of it he is by Course of the Common Law without remedy otherwise it is of a Rent Charge for here he to whom the grant is made when the Rent is behind may chuse whether he will sue a Writ of Annuity against the granter or distrain for the Rent behind and retain the distress till the time he be paid accordingly but he cannot have both remedies together but must take him to the one for if he once recover by a Writ of Annuity Annuity then is the Land discharged and if he Sue not his Writ of Annuity but distraine for the Arrerages and the Tenant Sueth a Replevin whereupon the other anoweth the taking of the distress in Court of Record then is the Land charged and the Person of the Granter dischared of the Action of Annuity Estopple Ye shall understand That if a man will that another shall have a Rent-charge coming out of his Land and yet will not that his Person shall be by any means charged by Writ of Annuity he may then have such Clause in the end of his deed Proviso Proviso quod praeseus Scriptum nec quicquam in eo contentum ullo pacto se extendat ad onerandum Personam meam per breve seu Actionem de Annuitate sed tantum modo valeat ad onerandum Terras Fundas Tenementa mea de annuo redditu Praedicto If this or such like Clause be added then the Land is charged and the Person of the Granter is discharged Also if a man will make a Deed of Grant in this wise that if John at Stile be not Yearly paid at the Feast of Christmas for term of his life Twenty Shillings Sterling that then it shall be Lawfull for the said John at Stile to distrain for it in the manner of Dale this is a good Rent charge because the mannour is Charged with the Rent by way of distress and yet nevertheless in this Case the Person of him that made such Deed is discharged of any Action of Annuity For as much as he granted not by his Deed any Annuity to the said John at Stile but only granted that he might distrain for such Yearly Rent Furthermore ye shall note That if a man hath a Rent-charge to him and to his Heirs coming out of certain Lands and doth Purchase any parcell of these Lands to him and to his Heirs in this Case the whole Rent-charge is quenched and gone and the Annuity also Extinguishment the Cause is this that a Rent-charge cannot be in such Case apportioned Otherwise it is of a Rent-Service as for example If one which hath a Rent-Service of 20d by Year doth Purchase parcell of the Land out of which this Yarely Rent of 20d is coming this shall not extinguish or drown the whole Rent but for the parcell only For Rent Service in such case may very well be apportioned and rated according to the value of the Land Yet there be some sort of Rents-Services Rent service cannot be apportioned which in no wise can be apportioned As where a Tenant holdeth his Land of his Lord by the service to render to his Lord Yearly at such a Feast a Horse lading of Gold a red Rose a Gilliver or such like If in this case the Lord doth Purchase parcell of the Land thus of him holden this Service is gone because such Service cannot be Severed and apportioned Also Escuage is a Service that may be very well apportioned according to the difference and rate of the Land But where any Land is holden by Homage and Fealty if the Lord purchase parcell of the Land yet he shall have his Homage and Fealty still of his Tenant Ye shall mark also That if a man maketh a Lease of Land to another for term of life reserving to him certain Rent if in this case he granteth that Rent to John at Stile saving to himself the Reversion of the said Land
this Rent is but Rent Seck because John at Stile that hath the Rent hath nothing in Reversion of the Land But if he granteth the Reversion of the Land to John at Noke for term of life and the Tenant Atturneth accordingly then hath John at Noke the Rent as Rent Service because he hath the Reversion for term of his life Likewise it is If a man giveth Lands or Tenements in tayle Rent is incident to a reversion Reserving to him and to his Heirs certain Rent or maketh a Lease of the Land for term of life Reserving certain Rent if he granteth the Reversion to another and the Tenant Atturneth accordingly the whole Rent and Service shall pass by this word Reversion because the Rent and Service in such case be Incident to the Reversion and do pass by the grant of the Reversion But if he had Granted the Rent only it had been Rent Seck CHAP. XXXIX What remedy a man hath to recover his Rent when it is behind I Shewed you before that for a Rent-service if it be behind you may distrain in the ground even of Common right though there be no such Clause of distress mentioned in the Deed of Feoffment Grant or Lease Also for a Rent-charge ye may distrain or bring your Writ of Annuity at your choice and election as before is declared But of a Rent Seck if you were never seized of it nor of any Parcell thereof ye be without remedy by course of the Common Law for ye cannot distrain for it nor yet bring your Writ of Annuity but if you were once seized of it or of Parcell thereof and it is eft-soones behind then your remedy shall be this ye must go either by your self or by your Deputy to the Land or Tenement out of which the Rent is coming Disseisin of Rent Seck and there demand the Arrerages of the Rent which if the Tenant denyeth to pay this deniall is desesin of the Rent Also if the Tenant be not then ready to pay it this countervaileth a deniall which is a disesin Moreover if neither the Tenant nor no other man be remaining upon the ground to pay the Rent when ye demand they Arrerages this also is a deniall in the Law Assize and is in very deed a diseisin And for these diseisins you may have an Assize of Novel diseisin against the Tenant and shall recover seisin of the Rent and the Arrerages and your Dammages and Costs of your Writ and of your Plea And if after such Recovery and Execution had In Rediseisin double damages the Rent be again at another time denied you then you may have a Writ of Rediseisin and shall recover your double Dammages It shall therefore be wisdom for a man Therecauses of disseisin of Rent service when a Rent is granted by any person unto him to take of the Tenant of the Land a Penny or half Penny in name of seisin of the Rent and then if at the next day of payment the Rent be denied him he may have an Assize of Novel diseisin And ye shall note That there be three Causes of diseisin of Rent-service that is to wit Rescous Replevin and Inclosure Rescous is when the Lord upon Land holden of him distraineth for his Rent behind and the distress be rescued from him or if the Lord cometh upon the Land to distrein and the Tenant or any other man for him will not suffer him that is called Rescous Replevin is when the Lord hath distrained Replevin and Replevin is made of the distress by Writ or by Plaint Enclosure is where Lands or Tenements be so enclosed Enclosure that the Lord cannot come within the Lands or Tenements for to distrain And the chief case why such things so made be diseisin to the Lord is forasmuch as the Lord is by this way disturbed of the mean and remedy whereby he ought to come and have his Rent that is to wit by distress And there be four Causes of diseisin of Rent-charge Four Causes of Diseisin of Rent-charged that is to wit Recous Rplevin Enclosure and Denier For Denier or deniall is as well a diseisin of a Rent-charge as it is of a Rent-secke Finally You shall understand that there be two cases of deseisin of Rent-secke that is deniall and Inclosure And it seemeth that there is yet another cause of diseisin of all the three Rents aforesaid that is to wit And two of Rent-secke this when the Lord cometh to the Land holden of him or when he that hath a Rent-charge or a Rent-secke cometh to the Land to distrain for the Rent behind or to demand the Rent and the Tenant hearing this encountreth him and forestalleth him the way with force and Arms and menaceth him in such sort as he dare not come to the ground for to distrain for his Rent behind for fear of death or mutilation of his members This is a Diseisin because the party is disturbed of his mean and lawfull remedy whereby he ought to come to his Rent Finally Ye shall observe and mark That by an Act of Parliament made in the 22th year of our Sovereign Lord King Henry 8 it is lawfull for the Executors and Administrators of Tenants in Fee-simple Tenants in Fee-tayl Tenants for terme of life of Rent-services Rent-charges Rent Seckes and of Fee-farmes for Arrereages of such Rents as were due to the Testators in their lives either to distrein for the same or at their Election to bring an Action of debt except in such Lordships in Wales Distress or Action of Debt or in the Marches thereof whereas the Tenants have useed time out of mind to pay unto every Lord at his first entry into the Lordship any summe of Money for the redemption of all manner of Outcries and Penalties incurred at any time before their Lords entry Also by force of the said Act the Husband which was seized in the right of his Wife may after the death of his Wife either distrein or bring an Action of Debt for the Arrerages of such Rents as were due and unpaid in her life Likewise it is of him that hath a Rent for the term of another mans life if he for term of whose life he hath the Rent dieth yet by vertue of the said Act he or his Executors and Administrators may either distrein or bring an Action of Debt for the Arrerages due before the death of him for term of whose he had the Rent CHAP. XL. How Recoveries ought to be made of Rents and Services UPon a Replevin sued an Avowry may be made by the Lord or Conusance and Justification by his Bayliff or Servant upon the Land holden of the said Lord without naming any person certain to be Tenant thereof The like Law is also upon every Writ sued of second deliverance In any Replegiare or second deliverance for Rents Customes Services or dammage Feasant if the Avowry Conusance or Justification be found