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-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-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-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
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-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-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
the disseisour maketh a feoffment to two men in fee if the person disseized release to one of the feoffees in fee by his Deed then such Release shall inure to both the feoffees because the feoffees have their estate by the Law that is to say by the feoffment and not by wrong done to any other And in like manner if the disseizour make a Lease to a man for terme of life A Release shall inure to him in the remainder the remainder over to another in fee if the disseises will release to the Tenant for terme of life all his right this Release serveth as well to him in the remainder as the Tenant for terme of life And the cause is for that the Tenant for terme of life cometh to his estate by the course of the Law and for this cause the Lease shall inure and take effect by way of extinguishment of the right of him that hath released and by this Release the Tenant for terme of life hath no greater estate then he had before the Release made unto him And yet the right of him that released is all utterly extinct and gone wherefore for as much as such a Release cannot enlarge the estate of the Tenant for term of life it is reason that it shall serve him in the remainder Also if there be two Parceners and the one alieneth his part to another the other Parcener and the alience be Tenants in Common Furthermore Tenants in Common by Title of prescription Tenants in Common may be by Title of Prescription if that one and his Ancestors or they whose estate he hath in the half have holden in Common the same half with the other Tenant that hath the other half and with his Ancestours or them whose estate he hath as undenied time out of mind and ye shall mark that in some case Tenants in Common ought to have of their possession severall actions and in some case they shall joyn in one action Actions severall for if there be two Tenants in Common and they be disseised they ought to have against the Disseisor two Assizes and not one Assize for every one of them ought to have an Assize of his half Assize because they were seized by severall Titles but otherwise it is of Joyntenants for if there be twenty Joyntenants and they be disseised they shall have in all their names but one Assize Assize because they have but one Joynt-Title Also if there be three Joyntenants of whom the one Releaseth to one of his fellowes all the right he hath and afterward the other two be disseised of the whole in this case they shall have in both their names one of the two parts And as to the third part he to whom the Release was made ought to have hereof an Assize in his own name because as to the third part he is Tenant in Common Also as to sue Actions that touch the Realty Diversity there is a Diversity between Parceners that are in by divers discents and Tenants in Common For if a man seized of certain Lands in fee hath Issue two Daughters and die and they enter into the Lands as Co-heirs and each of them have Issue a Son and die without partition made between them so that the one half discendeth to the Son of the one Parcener and the other half to the Sonne of the other and they Enter and Occupie in Common and be disseised in this case they shall have in their two names one Assize and not two Assizes and yet the cause is though they come in by divers Discents yet they be Coheirs and Parceners Also if two Tenants in Common of certain Lands in fee give the same to another man in the tayl or let it to another for term of life yielding an annunity or certain Rent or a pound of Pepper or an Hawk or an Horse and they be seized of these services and afterward all the Rent is behinde and they Distrain for it and the Tenant maketh Rescous in this case Rescous as to the Rent and the pound of Pepper they shall have two Assizes and as to the Hawk and the Horse but one Assize and the cause why they have two Assizes as to the Rent and pound of Pepper is for that they were Tenants in Common by severall Titles and when they made a gift in the tayle for Lease of term of life saving and reserving to them the Reversion and yielding to them certain Rent This Reservation is incident to their Reversion and because their Reversion is in Common and by severall Titles even as their possession was before the Rent and other things which may be severed and which were to them reserved upon the gift or upon the Lease which be incident by the Law to the Reversion Plaint in Assize Therefore such things so severed be of the nature of the Reversion wherefore it behoveth that the Rent and the pound of Pepper which may be severed to be then in Common by severall Titles and of this they shall have two Assizes and every of them in his Assize shall make his Plaint of the half of the Rent and of the half of the pound of Pepper but of the Hawk and the Horse which cannot be severed they shall have but one Assize for it were an absurdity and thing inconvenient to make a plaint in Assize of the half of an Hawk or of the half of an Horse In like manner it is of the other Rents and services that Tenants in Common have in ground by divers Titles And ye shall understand Personall Action that concerning Actions personalls Tenants in Common ought to have them Joyntly in all their names that is to say Of trespass or of offences that touch their Tenements in Common as of breaking of their Houses breaking of their Closes and Pastures wasting and defouling of their Grass cutting of their Weeds and of Fishing in their Ponds and such other they shall recover joyntly damages because the action is in the personalty and not in the realty Damages Also if Tenants in Common make a Lease of their Tenements to another for term of years Tenants in Common shall have one Action of Debt yiedling unto them yearly a certain Rent if the Rent be behind they shall have one action of debt against the Lessee and not divers actions because the action is in the Personalty but in an Avowry for the said Rent they ought to be severed because it is in the realty as be the Assizes CHAP. XIX Of Chattells IT is to be known that as there be Tenants in Common of Lands or Tenements so there be Tenants in Common of possessions and property of Chattells as well Reall as Personall Of Reall as if a Lease be made of certain Lands to two Men for term of Twenty years and when they be thereof Possessed the one granteth that that unto him belongeth during the term to another he to whom
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-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
and again Mutually and on the other side the said Farmours and Grantees for term of years life or lives their Executors Administratours and Assigns shall have like advantage against them for any Condition Covenant and Agreement contained in the said Indenture as they might have had against their said Lessors and Granters their Heirs Successors all benefits and advantage of recoveries in value by reason of any warranty of deed or in Law by voucher or otherwise only except Provided that this Act shall not extend to charge any Person for Breach of any Covenant or Condition comprised in any such writing but for such as shall be broken and not performed after the first day of September in the 32. Year of this King and not before CHAP. XXIII Livery of Seisin and Atturnement IN all Feoffments gifts in tayle Leases for term of anothers life of Lands or Tenements there can be no Alteration Transmutation of Possession by the Antient Laws of this Realme unless there be a certain Ceremony Adhibited and Solemnized in the presence and sight of neighbours or others which Ceremony is called Livery of Seisin And ye shall understand The manner Livery of Seisin that this Ceremony of Livery of Seisin is done when the Feoffour Donour Lessour or other Deputy come with the Neighbours Solemnly to the Lands or Tenements and they put the Feoffe Donee or Lessee in possession of the said Lands or Tenements by delivering to him a Clod of Earth or the ring of the Door or some other thing in the name of Seisin and for this self cause this Ceremony of Law is called Livery of Seisin that is to say a Tradition or giving of Seisin But this Ceremony is not required in Leases for term of years Diversity between Possession and Seisin or in Leases at will For as much as the Lessour in such Lease remaineth still seized and the Lessee only hath possession without any Livery of Seisin and therefore the terms of the Law be that such a man is possessed whereas in Feoffments gifts in tayle and Leases for life he is called seized Wherefore if a Feoffment or Lease for life be made of Lands or Tenements and before that the Livery of a Seisin be made the Feoffour dieth the Heir of the Feoffour shall have Lands Per summum jus that is to say by the Rigour of the Law Notwithstanding that the Feoffee have paid to the Feoffour the price of the Land and although the Feoffee be in possession but otherwise it is of a Lease for term of Years A like Ceremonie is used Atturnment when Rent-charge Rent-service Rent in gross a Villain in gross common in gross common for Beasts certain Estovers and such other things as pass by way of grant be granted for it is no full and perfect grant till it be consignat and sealed as it were with the Ceremonie of Atturnment this Atturnment is nothing else but when the Tenant of Land of which a Rent granted is granted or out of which a Rent is granted doth make some evident signification and token that he accepteth the person to whom the grant is made to be in the same respect unto him that the granter was as for an example if the Tenant of the Land after he have heard of the grant cometh to the grantee that is to wit to the person to whom the grant was made and say in this wise or in like effect I agree unto the Grant made unto you by such a man How attu nment shall be made or I am well apaid and contented of the Grant that such a man hath made unto you but the most usuall frequent form of Atturnment is to say Sr I atturn unto you by force of the said Grant or I become your Tenant or to deliver unto the grantee a Peny or a Halfpeny by way of atturnement If a man maketh first one grant to one person and after another to another person that grant shall stand to which the Tenant will atturn although it be to the later grant And ye shall note That if a man be seized of a Mannour which is parcell in demean and parcell in service and doth alien the same Mannour to another unless the Tenant of the Mannor do atturn the Service shall not pass only Tenants at will excepted for it needeth not to cause them to atturn Note furthermore Diversity there is a great difference between giving a Peny in name of Seisin and giving by way of Atturnement for when it is given by the Tenant to the Grantee in the name of Seisin it doth not only imply an Atturnment Assize but also it giveth him such a seizin that if the Rent afterward were behind and not paid he may now upon the seisin of the Peny after a lawfull distress taken and after Rescous made Writ of Rescous bring an Assize of Novel Disseizin whereas if it were given only by way of Atturnement he could not bring the Assize but his Writ of Rescous only if Rescous were made Also ye shall understand That where Lands be deviseable by Testament by the custome of any ancient Borough or City if the reversion of any Lands be by Testament bequeathed to a man in fee and the Testator which we call the devisor dieth the devisee that is to wit he to whom the devise was made hath forthwith the reversion in him without further ceremonie of Atturnement Atturnment likewise it is if a man by testament doth bequeath a Rent-charge that he is seized of or of a Rent-service there needeth none atturnement at all If two Joyntenants of Land and the Lord granteth the services to another if one of the Joyntenants atturneth it is enough Finally If a Lease be made for terme of life the remainder to another in tayl the remainder over to the right Heir of the Tenant for terme of life in this case if the Tenant for terme of life will grant his remainder in fee to another by his deed this remainder passeth forthwith without any atturnement For if any Atturnement were requisite it should be made of the Tenant for terme of life Not Requisite which in this case is the granter himself And in vain it is that the granter should be inforced to atturn sith an atturnment is adhibited and had to none other purpose then to have the consent and agreement of the particular Tenant to the intent that it may appear that he hath notice and knowledg of this grantee but here where the particular Tenant himself is the granter an atturnement were superfluous and more then needed Note furthermore That where there is Lord and Tenant and the Tenant leaseth his Tenements to a woman for life the remainder over in fee the woman taketh a Husband and after the Lord granteth the services c. to the Husband in this case during the coverture the services be put in suspence Suspence but if the Wife die leaving the Husband
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-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-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
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-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
actually entred into them for notwithstanding that he is not in actuall possession yet he is possessed in the Law that is to say Haereditae quid sit in the eye and consideration of the Law he is deemed to be possessed for as much as he is Tenant for every mans Action that will sue for the said Lands or else assuredly there should ensue an intollerable inconvenience as we shall more copiously open in another place Ye shall furthermore understand that this word Inheritance is not only to be accommodate and applied to that which cometh by descent or succession from a mans ancestors or predecessors but also to every purchase in fee-simple or fee-tayle And note That a man can have no larger or greater estate then fee-simple CHAP. XIV Of Fee-Tayle YE shall understand that before a certain Statute called the Statute of West second West 2. Chap. 1. there was no estate tayle but all was fee-simple either purely that is to say without condition or at the least way conditionally Division as appeareth by the presence of the said Estatute but now sithence the promulgation of the Estatute divers forms of Estates Tayle have risen Fee-tayle is when it is prescribed and limited in the gift what sort of Heirs and by whom engendred shall inherit As for example I give Lands to a man and to his Heirs and go no further this is a fee-simple but if I make a limitation and adde of his body begotten now it is a fee-fee-tayle that is to say a fee or Inheritance limited prescribed determinate or assigned So that if I give Lands to a man and to his Heirs he hath fee-simple but if I give Lands to him and to his Heirs of his body lawfully begotten he hath but a fee-fee-tayle forasmuch as I appoint limit prescribe and express what Heirs they shall be and for lack of such Heirs the gift shall be expired and worn out and the Land shall be reverted again to the giver or his Heirs But ye must observe and Note That there be two kinds of fee-fee-tayle there is a generall tayle and there is a speciall tayle Fee-taile generall is where Lands be given to a man and to his Heirs of his body begotten without any mentioning and expressing by what woman they are begotten And therefore if a man be Tenant in the generall tayle of Lands Generall taile and taketh a wife and hath Issue by her and she dieth and afterwards he taketh another wife of whom he hath also other Issue by her either of these Issues is inheritable to this Land entayled But if I express in the gift by what woman the Heirs shall be procreated and ingendered then it is an especiall tayle as for example to make the thing plain Especiall taile If Lands be given to a man and to his Heirs of his body lawfully begotten by Margaret his wife this is an especiall tayle for the Issue of him begotten by another woman shall never inherit by force and vertue of the tayle Likewise it is if Lands be given to a woman and to the Heirs of her body lawfully begotten and shew not by what man this is a generall tayle but if I go forward and say by such a man her husband then it is an especiall tayle Also if I give Lands to a man and to his wife and to the Heirs of their two bodies lawfully begotten this is an especiall tayle as well in the husband as in the wife Semblable it is if a man giveth Lands to another man with his Daughter or Kinswoman in frank marriage Frank-marriage this word frank marriage implieth an estate tayle speciall and in this case as well the man as the woman hath an an estate in the speciall tayle But if I give Lands to a man and to such a woman and to his Heirs that he hath begot of her here the woman hath an estate but for terme of her life and the Husband an estate in the especiall tayle and likewise it is in the womans behalf as if I give Land to a man and to his wife and to her Heirs of her body by her said Husband engendred he hath an estate but for terme of life and she an estate in the speciall tayle but in both cases if I had said to the Heirs and not to his or her Heirs then should either of them have had an estate in the speciall tayle because this word Heirs is as well referred to the one as to the other Ye shall also understand That if Lands be given to a man Descent by Heir males and to the Heirs males of his body this is an estate tayle and in this case the Heir female shall never inherit Also if a man hath Issue and dieth and Lands be given to him and to his Heirs of his body begotten this is a good estate tayle although the father were dead at the time of the gift Finally it is to be noted that of Lands which a man hath in fee-simple the possession of the Brother shall cause the Sister-germaine that is to say the Sister both by Fathers side and Mothers to inherit and in this case the Brother by the half-blood shall not inherit as heretofore was said but of Lands which be entailed Otherwise it is therefore if a man be seized of Lands in the generall tayle and hath issue by his first wife a Sonne and a Daughter and also a Sonne afterwards by another wife and dieth and the eldest Sonne entreth into the Lands and after dieth the Sister-germaine to the eldest Sonne shall not have the Land but the younger Brother of the half-blood because whosoever shall inherit Land or any other hereditaments in tayle must claim them as next and immediate Heir not to him that dieth last seized of the Lands but to him to whom the Lands were first given unto whom in the case before remembred is the Sonne and Heir and not the Daughter Thus ye shall mark a great diversity between the form of succession in the Lands of fee-simple Diversitie and the form in fee-fee-tayle CHAP. XV. Tenant after possibility of Issue extinct WHen Lands Tenements or other Hereditaments be given to a man and to his wife and to the Heirs of their two bodies lawfully begotten if in this case either of them chance to die before they have Issue between them Dispunishable of waste he or she that overliveth is still Tenant in tayle but without possibility of any Issue that can be Heir to these Lands or hereditaments thus entayled and for this cause he or she thus over-living is called Tenant in Tayl after possibility of Issue extinct for in such a Tenant is all possibility of Issue that may be inheritable to these Lands by force of the gift in tayle utterly extinct or quenched and by his or her death the estate tayle shall expire cease and be abolished for ever and shall revert and turn again to the giver or donor from
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-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
on the feoffees behalf as when I infeoff you of Lands or Tenements upon Condition that you shall do such an act as to pay unto me or mine Heirs such an annuall Rent on the feoffors behalf as when I make a feoffment unto you upon Condition that if I pay or cause to be paid unto you before such a day such a summe of money then it shall be lawfull for me to enter again and retain my Lands in my former estate Tenants in Mortgage in this case he that is the feoffee is called Tenant in Mortgage which is as much to say as dead-gage and it seemeth that the cause why it is so called is forasmuch as it is doubtfull whether the feoffor will pay at the day limited and prescribed such a summe of money for the redemption of his Lands or not for if he do not his Title or interest in the Lands thus gaged and oppignorate is utterly extinct and gone without all hope of renewing Ye shall also note That if the mortgager dieth before the day of payment his Heir may redeem the Land very well even as well as his Ancestour that mortgaged the Land might have done although there be no mention made of Heirs in the writing Also if when the money is lawfully by the mortgager or his Heir tendered and profered and the Lessour refuseth to receive the same the feoffour or his Heir may enter and then hath the feoffee no remedy for his money at the Common Law Ye shall understand also that some conditions be utterly void in the Law and of none efficacy Conditions void vertue or strength As if a feoffment be made of Lands in fee-simple upon condition that the feoffee shall not alien or put away the same to none other this condition I say is void because the feoffee is restrained of his whole power that the Law giveth in such case unto him and with power and liberty is manner included in every feoffment yet I may abridg him of part of his power as to condition with him that he shall not alien the Lands to such a person or such but of Gifts in Tayl otherwise it is for if I give Lands to a man and to the Heirs of his body lawfully begotten Gift in Tayl upon Condition upon condition that he nor his Heirs shall alien the Lands to none other person this Condition is good and effectuall in the Law and if he or his Heirs contrary to the Condition do alien them then the giver or his Heirs may very well enter and retain the Lands for ever because this Condition shall stand with the forenamed Statute of Westminster the second which prohibiteth such alienations to be made Hitherunto have I spoken of Conditions in Deed now will I shew what be Conditions in Law that be annexed to any Estates Know ye therefore Estates upon conditions in Law that if the Office of a Parker Steward Constable Bedle or Baliff or such like Office be granted to a man for term of his life though there be no condition at all mentioned in the grant yet the Law speaketh of a condition in this case which is that if the party to whom such Office is given shall not execute all points appertaining unto his Office accordingly by himself or his Lawfull Deputy it shall be Lawfull for the grantor to Enter and discharge him of his Office and this condition is called a condition in Law There be also three other manner of Estates upon Condition that is to say Conditions against the Law Conditions Depugnant and Conditions Impossible First Estates upon Conditions against the Law be as if a man make a Feoffment gift grant or Lease upon Condition that if the Feoffors Donours Grantours or Lessours kill J. S. which is not the Kings enemy or burn his house that then it shall be Lawfull to the Feoffors Donours c. To re-enter this Condition is void and the Estate good And like Law is Conditions against the Land if such Conditions be to be performed of the part of the Feoffee Grantee c. But if it be that a Lease for term of years be made of Land upon Condition that if the Lessees kill J. S. that then he shall have fee simple although that he in his case perform the Condition his Estate is nothing thereby inlarged because the Condition is against the Law And ye shall understand that where an Obligation is Indorsed with a Condition which is against the Law both the Obligation Conditions Repugnant and also the Condition be clearly void in the Law Estates upon Conditions Repugnant be as if a Feoffment or a gift in tayle be made upon Condition that the Feoffee or Donee shall take no profit or shall do no wast and such other like such Conditions be void and the State good and effectuall in the Law notwithstanding Also if a Lease be made for term of life upon Condition that he shall not doe Fealty that is as a void Condition Likewise it is if a man that hath nothing in the Manour of Sale granteth a Rent-charge going out of the same upon Condition that the person shall not be charged this grant is good and the Condition is void Estates upon Conditions impossible be as if a Feoffment be made upon Condition that if the Feoffee goeth not through the Sea on foot to Calice in one day Conditions Imposble then it shall be Lawfull to the Feoffor to re-enter this is a frustrate and void Condition and yet the estate is good Like Law is of a Lease made for term of years c. or an Obligation with a Condition impossible ut supra the Obligation or Lease is good and the Condition void to all purposses CHAP. XXII An Act how strangers shall take advantage of Conditions made An. 32. H. 8. IT is enacted that as well persons which have or shall have any gift or grant of the King by his Letters Patents of any Lands Personages Titles or other Hereditaments or any reversion of the same which did belong to any Monastry or other Ecclesiasticall House disolved or otherwise come into the Kings hands since the fourth day of February in the twenty eight Year of our Sovereign Lord King Henry the Eight or which at any time heretofore did belong to any other Person and after come into the Kings hands as also all other Persons being Graunters or Assigns to the King or to any other Person their Heirs Executors Successors and Assigns shall have like advantage against the Farmours and their Executor Administrators and Assigns by Entry for Non-Payment of the Rent or for doing wast or other forfeiture and also shall have the same advantage by Action only of not performing of other Conditions Covenants or Agreements contained in the Indentures of their Leases or Grants against the said Farmours and Grantees their Executors Administrators and Assigns as the said Lessors or Granters themselves might have had at any time
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-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
for the Defendant or the Plaintiff be non-suit or otherwise barred the Defendant shall recover such Dammages and Costs as the Plaintiff should have had if he had recorded Both Parties shall in such Writs have like pleas aid prayers and Joynder in age as at the Common Law notwithstanding this Act Pleas in Avoury Pleas of Disclaymer only excepted 2 H. 8.19 CHAP. XLI For the Assurance of Farmers made ALl Leases hereafter to be made of any Lands or other Hereditamens by writing indented under Seal for term of years or for term of life by any persons being of the age of twenty one years having any estate of Inheritance either in Fee-simple or in Fee-tayl in their own right or in the right of their Charges or Wives or joyntly with their Wives shall be good and effectual against the Lessors their Wives Heirs and Successors according to the estate comprized in such Indenture of Lease Surrender of the old Lease This Statue shall not extend to any Lease to be made of Lands in the hands of any Farmer by force of any old Lease unless such old Leases expired within a year after the making of the new nor to any Grant to be made of any Reversions of Mannours Lands c. nor to any Leases of such Mannours Lands c. which have not been lett to Farme or occupied by Farmers twenty years before such Lease made nor to any Lease to be made without impeachment of wast nor to any Lease to be made for above twenty one years or three lives from the day of the making thereof and that upon every such Lease there be reserved so much yearly Rent as hath been usually paid for the Lands so lett within twenty years next before such Lease made and the Reversioners of the Mannours Lands c. so lett after the death of such Lessor or his Heirs may have such remedy against such Lessee his Executors Assignes as such Lessor might have had against such Lessee Provided that all Leases made by the Husband of Mannours Lands The Wife shall be party to the Lease c. being the Inheritance of the Wife shall be made by Indenture in the name of the Husband and Wife and she to seal to the same and the Rent shall be reserved to the Husband and Wife and the Heirs of the Wife And here the Husband shall not alien or discharge the Rent or any part thereof longer then during the Coverture unless it be by fine levied by Husband and Wife Provided furthermore that this Act extend not to give liberty to take more Farmes or Leases then might have been taken before this Act Vide Stat. 25. H. 8.13 Sheepe nor to any Parson or Vicar to make any Lease otherwise then they might have done before It is furthermore enacted What grant by a Corporation is good that the Grant Lease or gift or Election of the Governour or Ruler of any Hospitall Colledge Deanry or other corporation with the assent of the more part of such of the same as have voice thereunto shall be good and effectuall any Rule or Statute made by any Founder to the contrary notwithstanding 32 H. 8. CHAP. XLII Of falsifying of recoveries by Farmers 21. H. 15. A Termer for yeares may falsifie a feigned recovery had against them in the reversion and shall retain and enjoy his Term against the recoverer his Heirs and Assigns according to his Lease Also the recoverer shall have like remedy against the termer Avowry or Action of Debt his Executors or Assigns by Avowry or Action of debt for Rents and Services reserved upon such Lease and due after such recovery and also like Action for wast done after such recovery as the Lessor might have had if such recovery had never been No Statute of the staple Statute Merchant or execution by Elegit shall be avoided by such feigned recovery but such Tenants shall also have such remedy to falsifie such recoveries as is here provided for the Lessee for years CHAP. XLIII Of Tythes and how they shall be recovered 33. H. 8.7 ALl Persons shall duely set forth and pay all Tythes and offerings according to the custome of the places where they grow due If Tythes or offerings be not so set out and paid the party grieved may convent him that so detain them before the Ecclesiasticall Judg who hath power to hear and determine the matter in question Ordinarily or Summarily according to the Ecclesiasticall Lawes and to give sentence thereupon accordingly Here if any of the parties appeale the Judg upon such appeale shall adjudge to the other party reasonable cases and compell the Appealant to satisfie them by process and censures Ecclesiasticall taking surety of the other party to whom the costs shall be adjudged to restore the costs in case the principall case pass against him If any Person after such sentence given refuse to pay Tythes or Summes of Money so adjudged then two just of P. 1. Qu. shall upon Certificate thereof from the Judge commit the Party so refusing the next Goale there to remain till he have found Sureties to be bound by Recognisance or otherwise before the same Judge to the King to performe the said Sentence Howbeit none shall be thereby compelled to pay Tythes for Lands or other Hereditaments which by the Laws and Statutes of this Realm are discharged and not chargeable with the payment of Tythes neither shall it extend to the City of London or the Suburbs thereof In all cases where any Person who hath any Estate of Inheritance Free-hold Term right or interest in any Parsonage Vicarage or other Ecclesiasticall profit which now be or hereafter shall be made Temporall and admitted to be and abide in Temporall hand and to lay uses by the Laws and Statutes of this Realm shall happen to be hereafter outed or otherwise wronged from or concerning the same he or she shall have remedy for the same in the Kings Temporall Courts or other Temporall Courts as the case shall require by Writs of precipe quod reddat Assize of novell disseisin Mordancester quod ei defoveat Writs of Dower and other Originall Writs as the case shall require in like manner as for Lands Tenements and other Hereditaments in such manner to be demanded Also Writs of Covenant and other Writs for Fines to be Levied and all other assurances to be had and made of Parsonages Vicarages and other profits called Spirituall shall be devised and granted in Chancery as hath been used for Fines and Assurances of other Land Likewise all Judgements given and Fines Levied for and of such Parsonages c. shall be of like effect as judgments given and Fines levied of other Lands 32. H. 8. CHAP. XLIII Of Mortuaries 21. H. 8.6 NO Spirituall Person his Bayliffe or Lessee shall take or demand more for a Mortuary then as is hereafter expressed nor shall convent any Person before any Ecclesiasticall Judge for the recovery of more for the same then
as is hereafter declared in pain to forfeit so much as he takes or demands more and likewise 40s to the party grieved to be recovered by Action of Debt wherein no essence c. shall be allowed None shall take or demand for a Mortuary any thing at all where by the Custome they have not been usually paid nor upon the death of a Woman covert a Child a Person not keeping house a Wayfaring man one not residing in the place where he happens to dye nor where the goods of the dead Person Debts deducted amount not to the value of 10. Marks nor above the Summe of 3s 4d when they exceed not 30lb nor above 6s 8d when they exceed 30lb but not 40lb nor above 10s when they amount to 40lb or above And if the Person dye in a place where he or she dwelleth not their Mortuary shall be paid in the place where they had their most abode This Act shall not abridge Spirituall Persons to receive Legacies bequeathed to them or to the Kings Altar No Mortuaries shall be paid in Wales Callais or Barwick or in any of their Marches save only in Wales and the Marches thereof where they have been accustomed to be paid and such as are there paid shall be regulated according to the order prescribed by this Act. The B P of Bangor Landaff S. Davids and S. Assaph and the Arch Deacon of Chester shall take Mortuaries of the Priests within their Jurisdiction as hath been accustomed notwithstanding his Act. Lesse Mortuaris already setled by custome shall not be increased and there also persons exempted by this Act shall not hereafter be chargeable CHAP. XLV Of Discontinuance IT is called a Discontinuance by the Laws of England whereby he hath the possession of Lands or Tenements for the time present and yet not haveing the Fee-simple in himself nor in his own right only maketh an Alienation of the same to another by reason whereof he that should have them after him and which then hath right unto them cannot enter but is driven to his remedy by way of Action in such wise that the said Lands be not utterly shifted c. gone from such Person or Persons as have right unto them but be all only discontinued for a time till the Person which after the death of such discontinuer hath right unto them do continue and bring them home again not by entry but by suit and way of action As for example a Tenant in tayl of certain Lands doth Enfeoff another in the same in Fee-simple or fee-Fee-tayle and hath Issue and dyeth his Issue cannot enter into the Lands though he hath Title and right unto them Formedon in the descender but is but to his Action which is called a Formedon in the descender And if such Tenant in tayle which maketh such a Feoffment hath no Issue at time of his death it is yet neverthelesse a discontinuance to him which is either in the reversion or in the remainder so that neither the one nor the other can enter Formedon in the reverter or remainder but be driven to their Action he in the reversion of his Formedon in the reverter and he in the remainder to his Formedon in the remainder In like manner if a Bishop doth alien Lands Entre sine assensue Capitali which be parcell of his Bishoprick and dyeth this is a discontinuance of his Successor Forasmuch as he cannot enter but is driven to his Writ of entre sine assensu Capitali Semblable if a Deane be sold seized of Lands in the right of his Deanry and maketh such an Alienation this is a discontinuance to his Successor Also the Master of an Hospitall alieneth any Lands of his Hospitall that is a discontinuance and his Successor cannot enter but is put to his Writ Igressu sine assensu confratrum sororum De ingressu sine ascensu confratrum sororum But if a Parson or a Vicar of a Church will alien any of his glebe-Lands to another in Fee-simple or Fee-tayl and dieth or resigneth his Benefice this is no discontinuance to his Successor but he may very well enter notwithstanding such Alienation made by his Predecessor And the highest Writ that a Parson can have if his Predecessor have aliened his Glebe-Land or lost it by default or Reddition is a Juris utrum Reddition that is voluntarily yielding And furthermore note That no Tenant of the Land can by his or their Act discontinue the right of him in the Reversion unless it be by Feoffment with Livery and Seisin or else by a Release with Warranty And note That such things as pass by way of Grant by Deed without Livery and Seisin cannnot be discontinued as an Advowson Common or a Villain in Gross Reversion Rent-charge Common for Beasts certain and such other like And ye shall understand That in 32 H. 8. it was enacted that no fine Feoffment or other Act to be made or suffered by the Husband only of any Lands or Tenements being the Inheritance or the Free-hold of his Wife during the Coverture between them should be any discontinuance thereof or be prejudiciall or hurtfull to the said Wife or to her Heirs or to such as should have right title or interest to the same by the death of such Wife but that the same Wife and her Heirs and such other to whom such right should appertain after her decease may then lawfully enter in all such Lands and Tenements according to their rights and titles therein CHAP. LXVI How Recoveries by Collusion against Tenants for term of life is no Discontinuance An. 32. H. 8. WHere divers Persons seized of Lands and Hereditaments as Tenants by the Courtesie of England or otherwise only for term of life or lives have heretofore suffered other persons by agreement or covine between them had to recover the same against them in the Kings Court by reason whereof they to whom the reversion or remainder thereof have belonged have after the deaths of such Tenants been driven to their Actions for the recontinuance and obtaining the said Lands and Tenements so recovered and sometimes have been clearly disherited of the same It is enacted that all such Recoveries hereafter to be had by agreement of the Party or by covine or against any such particular Tenant of Lands or Hereditaments whereof he is or hereafter shall be seized as Tenant by the Courtesie of England Tenant in tayl after possibility of issue extinct or otherwise for term of life shall from henceforth as against such persons to whom the reversion or remainder shall then appertain and against their Heirs and Successors be clearly void Provided that this Act extend not to any person that shall by good title recover any Hereditaments without fraud or covine against any such particular Tenant by reason of any former right or title nor to avoid any recovery to be had against any such particular Tenant by the assent and agreement of those in 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
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-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 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
Vouchee and the Demandant doth desire a Writ to cause the Jury to appear it shall be granted unto him West 2.13 Ed. 1.6 In a Writ of Mortdancester of Cosenage of Ayel nuper obiit of Intrusion and the like whereby Lands or Tenements are demanded Counterpleading of Voucher which ought to discend avert remaine or escheat by the death of any Ancestor or other wise if the Tenant Vouch to Warranty and the Demandant counterpleadeth him and will avert by Assize and by the Country or otherwise as the Court will award that the Tenantor his Ancestor whose Heir he is was the first that entred after the death of him whose seisen he demandeth the Averment of the Demandant shall be received if the Tenant will abide thereupon and if not be shall be further compelled to another answer And in a Writ of right Voucher in a Writ of right if the Tenant Vouch to Warranty and the Demandant will counterplead him and be ready to averre by the Country that he that is Vouched nor his Ancestors had never seisin of the Land or Tenement demanded Fee or service by the hands of the Tenant or his Ancestors since the time of him whose seisin the Demandant declareth untill the time that the Writ was purchased and the Plea moved whereby he might have Enfeoffed the Tenant or his Ancestors and then shall the Averrement of the Demandant be received if the Tenant will abide thereupon and if not the Tenant shall be further compelled to another answer West 1.3 E. 1.39 And whatsoever Tenant do Vouch and the Demandant will averre in form aforesaid his Averrement shall be admitted whether the party Vouched be absent or present without any respect had thereunto 20. E. 1. Stat. de vocatis ad Warantum In all Writs of Entre which make mention of degrees Voucher in Writs of Entre none shall Vouch out of the Line or in other Writs of Entre where no mention is made of degrees which Writs shall not be maintained but in cases where the other Writs of degree cannot lye nor hold place 3. E. 1.39 If percase the Tenant hath a deed that compriseth Warranty of another man which is bound in none of the cases aforesaid Warrantia chartae to Warrantie of an Elder degree his recovery shall be saved unto him by a Writ of Warrantia Chartae out of the Chancery when he will purchase it but the Plea shall not be delayed therefore West 1.3 E. 1.39 If the Tenant will Vouch to Warranty a dead man Voucher of a dead man and the Demandants will aver that the Vouchee is dead or that there is none such their Averment shall be received without more delay 14. E. 3.18 If one being impleaded in the City of London do Vouch a forrein to Warranty One impleaded in London doth Vouch a forrein the Maior and the Bayliffs shall adjourn the parties before the Justices of the Bench at a certain day and shall send their Record thither and the Justices shall cause the Warranter to be summoned before them and shall try the Warranty And the Maior and the Bayliffs shall surcease in the mean time in the matter that dependeth before them by Writ untill such time as the Warranty be determined before the Justices of the Bench And when the matter shall be determined Commandment shall be given to the Vouchee to depart into the City and to answer unto the first Plea and the Demandant at his Suit shall have a Writ from the Justices of the Bench unto the Major and Bayliffs that they shall proceed in the Plea And if the Demandant recover the Tenant shall come to the Justices of the Bench and have a Writ to the Major and Bayliffs that in case the Tenant have lost his Land they shall cause it to be extended and and return the same extent unto the Bench at a certain day and after it shall be commanded to the Sheriff of the Shire where the Warranty was Summoned that he shall cause the Tenant to have of the Lands of the Warrantor to the like value and if it fortune that the Tenant make default at the day that is assigned him in the Bench then shall there go forth a Writ from the Justices of the Bench to the Major and Bayliffs to seize the Land demanded into the Kings hands by Petite Cape and to Summon the Tenant that he be at the Hustings at a certain day whereat the Justices shall be advised to give judgement upon the same default if he cannot save it And if he can save it then the Justices shall be Certyfied thereof by their Record and by the same record they shall plead the Warranty Cloucest 6. E. 1.12 An. 9. E. 1. Articul Stat. Gloucest None being Vouched to Warranty before the K. Just in Plea of Land or Tenement shall be amerced Day given to him that is Vouched because he was not present when he was Vouched to Warranty except the first day of the coming of the same Justices But if he that is Vouched to Warranty be within the County the Sheriff shall be commanded that he shall cause him to appear with the 3d. or 4th day according to the distance of the places as the Justices in Eire have used to do And if he do remain out of the County then he shall have reasonable Summons of 15. dayes at the least according to the Justices discretion and the Common Law Marlb 52. H. 3.26 CHAP. LVI Of Warranty WArranty is in three manners that is to say Warranty is of three sorts Warranty Lineall and Warranty Collaterall and which beginneth by Disseisin Warranty Lineall is where a man seized in Fee Lineall Warranty or in tayl maketh a Feoffment by his deed to another and bindeth him and his Heirs to Warranty and hath Issue a Son and dyeth and the Warranty descendeth to his Sonne that is Lineall Warranty for that if no deed with Warranty had been made then the right of the Lands should have descended to the Son as Heir to his Father and he shall convey the dissent from the Father to the Sonne But if the Tenant in the tayle discontinue the tayle Collateral Warranty and hath issue and dyeth and the Unckle of the issue releaseth to the discontinued with Warranty c. and dyeth without issue this is a Collaterall Warranty to the Issue in the tayle for that the Warranty descendeth upon the Issue the which may not convey him to the tayle by mean of his Unckle And in every case where a man demandeth Lands in fee-Fee-tayle by Writ of Formedon if any Ancenster of the Issue in the tayl which hath possession or which hath not possession maketh a Warranty and he that sueth a Writ of Formedon by possibility by matter that may be done might convey to him Title by force of the gift by him that made the Warranty c. That is then a Lineall Warranty and by such a Lineall Warranty
the Issue in the tayl shall not be barred except that he have assets to him discended But if be may not by no possibility that may be convey to him Title by force of the gift by him that made the Warranty then that is a Collaterall Warranty and by such a Collaterall Warranty the Issue in the tayl shall be barred without any assets And the cause that such a Collaterall Warranty is a barre to the Issue in the tayl is for that that all Warranties before the Statute of Glocester which descended to them which be Heirs to them which made the Warranties were barrs to the same Heirs to demand any Lands except the Warranties that began by disseisin and for that that the said Statute hath ordained that the Warranty of the Father shall be no barr to his Son for the Lands which come to the Heritage of the Mother nor the Warranty of the Mother shall be no barr to the Sonne for the Lands which come of the Heritage of the Father by the Statute 11. H. 7. Cap. 20. And none of the Statutes have made or ordained remedy against the Warranty that is Collaterall to the Issue in the tayle and therefore the Warranty that is Collaterall to the Issue in the tayle is yet in his force and shall be a barr to the Issue in the tayl as it was before the Statute And it behoveth that all Warranties whereby the Heir shall be barred that the Warranty descended by course of the Common Law to him which is Heir to him that made the Warranty or else it shall be no barre for if the Tenant in the tayl of Lands in Borough English where the youngest Sonne shall inherit by the Custome discontinueth the tayl and hath Issue and Sons and the Unckle releaseth to the discontinued with Warranty and dyeth and the younger Son bringeth a Formedon yet he shall not be barred by such Warranty Causâ quâ supra And if any man maketh a Deed with Warranty whereby his Heir should be barred and after he that made the Warranty be attaint of Felony then his Heir shall not be barred by such Warranty for that that such Warranty might not discend upon him for that that the blood is corrupt Warranty beginning by diseisin is Warranty by disseisin if the Sonne purchase Lands and after let the Lands to his Father for term of years and the Father by his Deed infeoffeth a stranger and bindeth him and his Heirs to Warranty and the Father dieth whereby the Warranty descendeth to this Sonne but the Sonne may well enter notwitstanding his Warranty for that that this Warranty begun by disesin when the Father made the Feoffment which was a diseisin to the Sonne And as it is said of the Father so it may be said of every other Ancester And the same Law is if the Ancester be Tenant by Eligit or by Statute Merchant and make a Feoffment with Warranty such Warranty shall be no Barres because they begin by diseisin In Deeds where it is contained Warranty by dedi Concessi Dedi concessi tale cenementum viz. I have given and granted such a Tenement without Homage or any clause that containeth Warranty and to hold of the Donors and their Heirs by a certain service the Donors and their heirs be bound to Warranty and where it is contained Dedi concessi c. to hold of the chief Lords of the Fee or of any other then of the Feoffors or their Heirs reserving no service to himself without Homage or without the aforesaid clause of Warranty his Heirs shall not be bound to Warranty but the Feoffor by reason of his gift shall be bound to Warranty during his own life The Husband doth alien his Wives Lands with Warranty Stat. de Bigamus 4 E. 1.6 If a man alieneth the Land he holdeth by the Courtesie of England his Sonne shall not be barred by the Deed of his Father from whom no Heritage to him descended to demand and recover by Writ Mortdauncester of the seisin of h s Mother although it be mentioned in the Deed that his Father did bind him and his Heirs to Warranty And if any Heritage descend to him of his Fathers side then he shall be barred for the value of the Heritage that is to him descended And if in such case Assets after the death of his Father any Inheritance descend to him by the same Father then shall the Tenant recover against him of the Seisin of his Mother by a Judiciall Writ that shall issue out of the Rolles of the Justices before whom the Plea was pleaded to resummon his Warranty as before hath been done in like Cases where the Heir of the Warrantor cometh into the Court saying nought descended from him upon whose Deed he is vouched And in like manner the Issue of the Sonne shall recover by Writ of Cosenage Ayel and Besaiel Likewise and in like manner the Heir of the Wife shall not be barred after the death of his Father and Mother to demand by acttion the Inheritance of his Mother by Writ of Entry which his Father did Alien in the time of his Mother whereof no Fine is leavied in the Kings Court. Gui in vita Glouc. 6 E. 1.3 FINIS