hath the whole and by Title of Survivorship And therefore if I. D. for money by him disbursed Coo. Knights case 163. purchase lands to himselfe and others and their heires this is holden collusion within the Statute 34. H. 8. ca. 5. to avoid Wardship which may accrewe after the death of I. D. because he was never sole seised Coo. 9. Flopirs case 126. a. b. and so no title of Wardship could be after his death because of the Survivor Coo. 9. Flopirs case 126. a. b. But where to be joyntly seised of lands holden of the king in possession and not in remainder to them and the heires of the body of one of them and he that hath the inheritance dyeth his heire deins age the king shall have the Wardship and Marriage of such heire notwithstanding the Survivorship of the other Tenant And this is provided by the other Statute of 32. H. 8.17 in case of the king only and therefore in such case if the lands were holden of a common person there would be no wardship during all the life of the Survivor Ward where the Tenant dyeth seised of land in the very possession thereof by taking the profits c. This admits no difficulty and therefore in vaine to multiply cases thereof He in the Remainder upon an estate for life Coo. 2. Binghams 92. b. 33. H. 6.5 24. Ed. 3.33 B. Na. Br. 142. b Coo. 2. Binghams case 92. b. Coo. 9. Quicks case 129. b. Vet. Na. Br. Bro. Gard. 113. 4. H. 6.20 20. Eliz. Dy. 362. a. is not Tenant to the Lord untill the Remainder happen in possession and therefore if a man maketh a lease for life the Remainder to another in fee and he in the Remainder dies his heire being within age here during the life of the Tenant for life the heire of him in the Remainder shall not be in ward because the impediment is not removed but in that case if after the discent of the Remainder and before the death of the Tenant for life the Lord grant away his Seigniory and after the Tenant for life dies the heire of him in Remainder being under age neither the grantor nor the grantee of the Seigniory shall have him in ward If the Tenant make a gift in tayle the Remainder over in fee to another 4. H. 6.10 here the Tenant in tayle holds immediately of the chiefe Lord and he die his heire under age he shall be in ward to the chiefe Lord and so shall the heire of him in remainder in fee if the Tenant in tayle die without issue during the minority of the heire of him in the remainder because the impediment is removed by death But if an estate tayle be made of lands holden of a common person the remainder in fee to the King the Tenant in taile die his issue under age he shall be ward to no body because the Tenure and services are extinct by the fee simple being in the King who can hold of none And the estate of Tenant in tayle and the remainder over maketh both but one estate If the Tenant make a lease for life Vid. Na. Br. B. Gard. 113. or a gift in tayle leaving the reversion in himselfe he remaines Tenant still to his Lord and his heires shall be in Ward for the reversion because his estate never moved at all out of him and he is immediate Tenant so note the diversity betweene a Remainder and a Reversion So if the Tenant infeoffes A. who gives the land back againe in tayle to the tenant or to the son of the tenant Tenend de Capital Dom. yet the Tenant in tayle should hold of his Donor and he of his Lord Paramount and the heire of the Donor shall be in Ward to his Lord for the reversion and the heire of the tenant in tayle shall be in Ward to his Donor for the possession And for the same reason Coo. 2. Binghams Case 92. if the Tenant in tayle be with the reversion expectant to himselfe and his heires of lands holden by Knights service of a common person and he dies his heire within age he shall be in Ward for his body but not for his lands 24. Ed. 3.33 because betweene the estate tayle and the reversion stand two distinct estates in the tenant and the reversion only is holden immediatly from the Lord and not the estate tayle in possession but if the Case had been Tenant in tayle with the remainder to an estranger in fee there the heire of the tenant in tayle under age shall be in Ward to the Lord of whom the land is holden for body and land because the particular estate and the remainder make but one estate in Law and all is holden of the Lord immediatly But note that in the Kings Case if his Tenant make a gift in tayle and grant the reversion over or keepes the reversion expectant to himselfe in fee in these Cases and the like by some bookes the King may elect his tenant and there shall be a Wardship of the heire of the Tenant in tayle or of him in the reversion as his Majesty shall elect Stat. 34. H. 8. cap. 5. and this election shall binde him so that afterwards he cannot resort to a new choice but other bookes are contrary viz. that he in the reversion is only the Kings Tenant and he hath no election but by common experience of the Court of Wards they use to choose the Wardship of the best estate for the King and for the third part to bee in Ward upon the Stat. of 32. 34. H. 8. of Wills the words of 34. H. 8. are that the King shall have as well lands in taile as in fee simple If the kings tenant F. N. B. 142. d. 14. H. 8.16 or the tenant of a common person be disseised of his land and die so that a right only descend to the heire yet the heires being within age shall be in Ward for this right Coo. 3. Butler Bakers case 35. a. because after the disseisin the disseisee remaines still tenant to the Lord in right of Law So if tenant in taile make a feoffement in fee 48. Ed. 3.8 15. Ed. 4.10 br and thereby discontinue the taile and then dies his issue under age shall be in Ward to the Donor So where the heire under age recovers lands holden c. by a Br. de entrey sur disseisin writ of Cosenage for the action which descends he shall be in ward for this land so recovered because of the right descended to him Mes auterment est lou il recover by a writ which doth not descend as by a writ De dum non fuit compos mentis Yet where a possibility only descends as if a man covenant with the father to stand seised to the use of the father and his heires upon a contingent the father dies his heire under age the contingent happens It was held by the
grant thereof made by the King to restore the ancient Tenure of the Subiect and if a grant had beene made otherwise hee of whom the lands were holden before had his remedy by petition to the King If the King purchase a Mannor of which I. S. holds hee shall hold as hee held before and shall not sue Livery nor pay Primer seisin nor hold in Capite To hold of the King by graund Sergeancy is Knights service in Capite by petty Sergeancy is Soccage in Capite whereof more in the following Title To hold of the King by Castle-guard Lit. 34. b. Coo. 2 p. Cromwels case 81. Lit. 266. is Knights service in Capite but to hold by certaine Rent for Castle-guard is but Soccage But by Fitz Harberts natura brevium a Tenure of the King Coo. 4. Luttr case 88. b. F. N. B. 256. a. Stam. praerog 29. b. as of an ancient Honour by certaine rent for the keeping of Dover C stle is taken to bee Knights service in Capite but this seemes no Law Note that there must of necessity bee a Tenure of all Lands in the hands of Subiects Coo. 9. p. Ant. Lowes case 123. wherefore if the King grants or releases the service of his Tenant by Knights service c. to his Tenant and his heires this cannot extinguish the Tenure wholly but that fealty shall remaine for necessity of Tenure 26. H. 8.9 As in graunts so in offices found after the death of the Kings Tenant to entitle the King or Lord of a Wardship the words of the office directs what the Tenure is and therefore before the Statute of 2. E. 6. cap. 8. if an office had beene found that one held of the King generally Sed per quae servitia Iurat ignorant this was taken for a Tenure by Knights service in Capite because where the Tenure is uncertaine the best shall be intended for the King And for the same reason an office finding De quo tenetur Iurator ignorant this was taken for Tenure by Knights service in Capite because where the Tenure is uncertaine the best shall be intended for the King And for the same reason an office finding de quo tenetur jurat Ignorant was taken for the immediate Tenure of the King and was sufficient to entitle the King to a Wardship but by the said Statute it is provided that in the first case Stat. 1. Ed. 6.4 it shall not be holden for a Tenure in Capite and in the second place no immediate Tenure of the King but in such case a Melius inquirendum shall be awarded howbeit if upon the Melius inquirendum the same be so again uncertainly found the best shall be intended for the King viz. a Tenure in Capite by Knights service There are also Tenures by collusion or estoppell 7. E. 3.37 as when a man seised in Fee simple of Lands holden of a common person hath sued a Livery or Ouster le main of the same out of the Kings hands or hath confessed by any matter of Record a Tenure in chiefe of the King this makes the Land holden of the King of whemsoever it was holden before and the King shall have wardship by reason of this Tenure Tenant in tayle generall holds of his Donor in such Knights service as hee holds Ouster of his Lord 38. E. 3.7 2. Ed. 4.5 1. Ed. 2. de militibus Nevell yea although upon the gift made the Land be given Tenend de capital dom yet such a cause shall not alter the Tenure but that hee shall still hold of his Donor Twelve plough Land being every one of them anciently of the yearely value of five nobles make a Knights Fee worth per ann 20. l. which was anciently accompted sufficient maintenance for a Knight thirteene Knights Fees and a third part being 400. markes yearely value made a Barony Re. 9.124 Ant. Lowes case Inst fo 69. a.b. twenty Knights Fee of 400. l. yearely value made an Earledome and according to the same proportion 800. markes a Marquesdome and 800. l. a Dukedome the fourth part of which is paid the King for a reliefe viz. of a Knights fee 5. l. and so of the rest To hold of the King in Fee Farme Mag. Cart. cap. 27. 20. E. le case Inhabitant de Sassron Walden is a Soccage Tenure and yet this Tenure shall yeeld no reliefe because the Law intends that the Farme or Rent that hee payes for the Land is the full value of the land and recompences all other profits of the Tenure and this is the common experience of the Exchequer Tenures for the most part are either Knights service or Soccage Knights service is either in Capite of the King or in common Knights service in Capite is of two kindes one more speciall viz. a grand Sergeancy the other the generall service Knights service is either of the King as of some Honour Castle or Mannor or Knights service of common persons So Soccage is either in Capite or common Soccage in Capite more speciall as petty Sergeancy or more generall the common Soccage is either of the King as of some Honour Castle or Mannor which are species of ancient Demesne and Burgage of the King or Soccage of a common person There are also other Tenures as Frankallmoigne Tenure by Divine Service base Tenure as Coppy-holder Tenure by villenage of which I need not speake for the purpose in hand Of Knights service and Soccage Tenure of a common person I may likewise spare the description but of either of these much is said in the Title of Wards collusion and those that follow Tenure in Capite by Knights service IS properly where lands are holden of the person of the King and of his Crowne as of a seigniory it selfe in grosse 30. H. 8. Dyer 44. a. and chiefe above all other seigniories Improperly of him as of some ancient Honour annexed to the Crowne as Barkingsteed Newland Rawleigh Stat. praerog Rs. fo 29. b. the Abbey of Marle c. And this description is understood as well of Knights service as Soccage in Capite Knights service in Capite is denoted either by expresse words as Tenend de nobis per servitium militare or improperly by construction of Law upon uncertaine words as in the cases supra Title Tenures The more speciall Knights service is grand Sergeancy Lit. 34. b. which is denoted by some particular service to be done in his own person to the King then the other requireth as to carry the Kings Banner Launce c. to lead his Hoast to be his Marshall to carry his Sword before him at his Coronation to be his Sewer Carver or Butler at his Coronation to bee one of the Chamberlaines of his Exchequer and divers other the like To Knights service in Capite 2.24 Ed. 3.47 C. Stam. prero Rs. fo 7. ib. 6. L. 2. ib. 12.6.5 Plo. Com. Fogags 17. 2. 13. H. 4.6 b. 22. H. 8. 5.
E. 4.12 Stam. prerog Rs. fo 8. are incident not only Ward Marriage Primer seisin Reliefe Livery and Licence to alien but also Prerogative to Wardships and Primer seisin of all other Lands holden of common persons in Knights service or in Soccage and of all other services whereof the Tenant in Capite dyed sole seised in Fee and Fee taile in his owne Right or in the Right of his wife in Possession Reversion Remainder or in Right which descended to the Kings Ward and not to any other customary heire 12. Ed. 4.18 as the younger sons in Gavellkindes c. Except the Lands holden of the Archbishop of Canterbury the Bishop of Duresme between Tyne and Tese and the Lords of the Marches where the Kings writs runneth not which they had in Anno 17. Ed. 2. 17. Ed. 2. Meues case 133. Sta. 17. Ed. 2. Stam. pre Rs. 7. b. 6. H. 2. Gard. 105. But the body is not wherefore the King shall have that against all men but the King shall have no Prerogative in the Lands of the second Ward which he hath by reason of Ward as where one that held of the Kings Ward was never seised of those Lands nor of the service they were holden by And the meane Lords whose Fees the King hath in Ward by his Prerogative shall have their Rents by which such Lands were holden during the Minority payed to them by the Kings Officers appointed to receive the profits of the Land holden of the other Lord upon request and tender of an Acquittance to the said Officers As by this Tenure the King hath Prerogative in case of Ward so also he hath the like Prerogative of Primer seisin which see after Title Seisin Soccage in Capite THE Tenure is described in the last Title Coo. 6. p. Wheelers case 7. the service that this Tenure is knowne by is generally where the Tenant holds by certaine services not by knights service for all manner of services as Tenend de nobis per fidelitatem tantum or by homage and Fealty or by Fealty and rent or by homage fealty and rent or by a red Rose or the like pro omnibus servitiis and although in the last example nothing be said of Fealty Lit. fo 36. a. yet it is implyed by the Law as incident to all manner of services More speciall soccage in Capite is petty Sergeancy which is where a man is bound by his Tenure to render yearely to the King a Bow a Sword Gauntlet or such like small matter touching the War To Soccage in Capite are incident Stam. praer Rs. cap. 3. fo 13. b. Reliefe Primer seisin and Livery and licence to alien whereof in these small Titles Common Knights service of the King IT is where land is holden of the King as of some Honour Castle or Mannor per servitium militar expresly or implyedly by construction of Law upon ambiguous words This Tenure gives the King Ward Marriage Reliefe Livery but no Primer seisin nor licence to alien nor hath the King hereby any prerogative to have other lands holden by the Kings Tenant of common persons into Wardship But yet the King shall by his prerogative have the Mariage of such Ward of whom soever he holdeth besides Stam. praer Rs. fo 10. 24. Ed. 3.31.6.5 though his Tenant were enfeoffed of the lands holden of his Maiesty after he was enfeoffed of his lands holden of others without respect of the priority of feoffement which alwayes prevailes amongst meane Lords whereof more fully afterwards in Title Marriage Common Soccage of the King IS where Land is holden of the King as of some Honour Castle or Mannor by the services mentioned supra Title Soccage in Capite This Tenure yeelds a Reliefe but no Wardship to the King Marriage Primer seisin c. Ward THe Tenure by Knights service had his originall Creation for the defence of the Kingdome Lit. fo 20. binding the Tenant to serve the King or other Lord to whom he is Tenant in the Kings warres for a certain time to the quantity of his Terme and therefore that the Common-wealth should not be unserved the Law gives the King Lit. fo 22. or the other Lord custody of the heire Male of such Tcnant being under age of one and twenty yeares at the death of his Ancestor together with the profits of his Land till the same age And of the heire Female Lit. fo 22. under the age of fourteen yeares at the death of her Ancestor and unmarryed together with the profits of her Land untill her age of sixteen to the end that he may provide himself of a man able to doe him Knights service But if the heire Female be marryed at the death of her Ancestor then her Land only shall be in Ward but till her age of fourteen yeares because those two yeares after fourteen are given only to make tender of her marriage which is already done And if at her Ancestors death she be fourteen yeares old Lit. fo 22. Bro. Gard. 86. Ac. 35. H. 6.52 then there shall be no Wardship neither of her body nor Lands because at that age shee may have a husband able to doe Knights service and that is her full age to be out of the Ward by the Common Law 35. H. 6.54 and the other two yeares are given in favour of the Lord. But when lands that are holden of the king or other Lord descend to an heire male or female in the life of the father from some other ancestor as from the grandfather c. of the mothers side the mother being dead Lit. fo 25. Coo. 3. Ratch case 38. Coo. 6. Re. Ambrosia Gorges case 22.22.6 re N. B 143. o. Lit. fo 114. though the Lord shall have the Wardship of the land yet the law of nature gives the father the Wardship of the body of such heire with this difference in case of an heire female that he shall have the Wardship of her body till he have a son and then the Lord shall have it because by the birth of the son he is become heire apparent and this priviledge is given to the Father but for his heire apparent which now she is not in those cases the grandfather shall not have the Wardship of his grand-childe if his father be dead touching the kings prerogative to have Wardships of his lands that his Tenant by knights service in Capite held of another Lord See before Title Tenure in Capite by knights service and more in Stamf. exposition of the kings prerogative cap. 1. So the essence of Wardships is requisite that the Tenant die sole seised of lands in possession Remainder or Reversion or in right holden in knights service and a descent to their heire for if men be joyntly seised in fee or in fee tayle and one of them die his heire under age he shall not be in Ward because the Lord hath his Tenant alive viz. the Survivor who
holdeth of a common person Soccage lands he is a person having of lands within these Statutes because in the judgement of the Law he hath the land to many purposes and therefore devise c. by him of his other lands holden in Soccage is good only for two parts and his heire shall bee in ward c. for the third part If a man have only a fruitlesse reversion without rent expectant upon an estate tayle Coo. 11. Re. Henry Harpers Case 24. Coo. 10. Leon. Lowes Ca. 80. or for life of lands holden c. and devise but two parts of his other lands holden in Soccage a third part shall bee saved for wardships and primer seisin c. By these Statutes But if the first grant away this reversion Coo. Leonard Lowes Ca. 81. then he may devise all his Soccage land because at the time of the devise hee is no person having c. But if he that hath a remainder c. expectant upon an estate taile or a lease for life of lands holden c. deviseth all his Soccage lands and dies before his remainder shall fall into possession this devise of all is good because he is not a person having of such estate in lands holden c. as by the common Law yeeldeth wardship and therefore out of the purpose of the Statute and so note the diversitie betweene a reversion and a remainder upon the Reason of the Cases thereof before Title Marier Inheritances which of their nature are not of any certaine yearely value 5. H. 7.36 Coo. 10 Leon. Lowes Case 82. a. as a Franchise to have felons goods Court Leetes waifes estraies advowsons c. holden of the king c. shall restraine the owner thereof to devise a third part of his Soccage land because he that hath these is a person having hereditaments within the meaning of these sttatutes But where a man hath Soccage land Cars Case 29. Eliz. cited in Coo. 3. But. Bak. Case 30. b. a. and hath also a rent hat was holden by knights service in Capite extinguist in his Tenancy he may devise or dispose of it by act executed all his Soccage lands and there shall be no wardship of a tierce part because that the rent being extinct he was not a person having thereof at the making of his last will c. So where the husband and the wife be both Jointenants of an estate in Fee after coverture Coo. ibid. Stat. 34. H. 8. the husband shall not be said a person having of this land Coo. 8. Re. Wights fo 163. b. because hee alone is not owner of this land and so generally he that shall be said a person having of land holden c. to be within these statutes must be sole seised and not joyntly with another Thirdly as these words are in these statutes having lands doe import sole ownership of the land holden Coo. 10. Leon. Low Ca. 82. b. so they doe also import and appoint the time of such ownership to be the same instance when hee makes disposition or devise of these lands so that the time of having holding and disposing ought to concurre where if a man convey to his yonger or to his wife c. his lands holden c. in Fee simple Coo. 11. Re. Harpers Case 24. a. either absolutely or with power of Revocation having a third part which is Soccage land to discend and after purchase more land holden in Soccage he may devise all his new purchased lands because at the making of his will he had no land holden c. So if a man have Soccage land and convey it as Joynture to his wife c. and afterwards purchased lands holden Coo. 10. Leon. Low Ca. 83. b. c. and devise two parts thereof and dieth his heire under age no part of the Soccage land shall be taken to make a third part of the whole for watdship c. because when he made the conveyance of the Soccage lands he had no lands holden and therefore the conveyance good for the whole But if a man having soccage land of 20. li. yearely value deviseth it to his yonger children or to a stranger and afterwards purchaseth land holden of the yearely value of 20. li. and dieth the devise is not good for all the soccage land because the VVill tooke not effect before his death and before the land holden c. See now the difference betweene the last Case of conveyance by Act executed and this of devise But if a man having land holden in Fee and soccage land Coo. 3. But. Bak. Case deviseth this soccage land and after hee aliens his his land bona fide this divise is good for all the soccage land Coo. 10. Re. Leon. Lowes Case 84. a. t. because when the VVill tooke effect he had no land holden to cause a wardship or Primer seisin Fourthly it is to be considered who shall be said to be a wife or a child to be within these Statutes to be advanced and then what estate shall be said an advancement of such wife or children A disposition for the advancement that a man intend to marry Coo. 8. Virgill Parkers Case 173. b. though at the time she be no wife if after he marry her she is made a wife within the intent of these Statutes as if at the disposition made she had had him If by Act a man disposeth of all his lands holden to his bastard 14. El. Dyer 313. b. Coo. 10. Leon. Lowes Case 83. a. t. Coo. 6. Report Sir George Cursons Case 77. a. or to one of his collaterall blood not being his heire apparent or to his grandchild in the life of the father these Statutes give no wardship nor Primer seisin of a third part no more than if the deposition had been to a meere stranger bacause these are not children in judgement of law and then the conveyance remaines as it was at the common Law good to all because the Statutes provide for wardships or primer seisin but where the conveyance is made to a childe But if after the fathers death the grandfather conveieth the land to the use of any of his children there shall be wardship c. for a third part because by the fathers death the care of the children is cast upon the grandfather by the law as of his owne children and therefore they are to be taken children within the statute Then to see what shall be said an advancement of such wife and children if the land conveighed to the wife and children by the said father or grandfather be levied to her her husband to her use of the wifes lands therefore there shall be no third part in ward Coo. 9. Floyers Case 126. because this conveyance is no advantage to her in regard the land was originally hers and moved not from her husband therfore out of the statute So if a man convey land to his
hath wardship and primer seisin of a third part and then the first son dyeth without issue the King or Lord shall not have the benefit of the Statute against the son in the remainder for the Statutes doe extend to the first son advanced only if he survive the father and then be owner of the land Wherefore if a man have lands holden 20. El. Calthrops Case cited in Coo. 3. Re. But. Bak. Ca. 31. a b c. of the yearely value of 20. li. and Soccage lands of 10. li. yearely value he may devise all the lands holden c. and leave the Soccage land only to descend for wardship and primer seisin and the Statutes are satisfied and the heire shall sue Livery for one of the acres holden c. though no land be descended to him if the land be holden of the King by Knights service in Capite So if a man have land only holden Coo. 10. Leon. Lowes Case 84. b. c. And conveyeth the whole for advancement of his wife preferment of his children and afterwards purchase so much land in Soccage as amounteth to the third part of the land holden and leaves this to descend this Statute is satisfied and the conveyance is good for the whole land holden c. And note Coo. 10 Leon. Lowes Ca. 84. that to make wardship upon these Statutes the estate of the Lord holden ought to continue after the Tenants death And therefore if a man have an estate tayle only of land holden and hath Soccage and dyeth without issue so that the estate tayle is spent the devise is good for all the Soccage land so if the land holden be defeated by condition after the Tenants death And so the estate of the Tenure ought to continue after the death of the Tenant Coo. 3. But. Bakers Case 34. b. wherefore if the King gives land to one and his heires to hold during the life of the Patentee by Knights service in Capite and after his death in Soccage or E converso here shall be no wardship or primer seisin neither by the common law nor by these Statutes because in the first case the Tenure continues not after the Tenants death and in the second case the Tenure to make a wardship commenceth in the son only Collusion to avoid Wardships IF Tenant enfeoffe his son and heire apparent St. Marle b. ca. 6. Plo. Com. or his collaterall heire apparent to make him have an estate in land as a purchasor and so to beguile the Lord of his wardship because the heire comes not to the land by descent this is collusion apparent and manisest against which by the Statute of Marleb made Anno 32. H. 3. It was provided that the Lord shall notwithstanding have the wardship of his heire There is also collusion which is not so manifest as when the Tenant enfeoffes others upon collusion between him and them had for the benefit of the heire and to prevent his wardship and this collusion is averable against which also this Statute of Marleb provideth To instance in particular cases what shall be said collusion within these Statutes of Marleb and what is not is needlesse because the cases thereof are too many for this Treatise as for that by the said Statute of 34. H. 8. cap. 5. a more ample provision is made against Collusion then was by that former Wherefore before the statute of 34. Inst fo 78. a. H. 8. if the father had stept but a little further and had made a Feoffement to his sonne and heire and to a stranger although the inheritance were limited to the heires of his heire and that the stranger had but an estate for life Or if the Father had made but an estate for life or taile to his sonne and heire 27. H. 8.10 and limited the remainder and granted the Reversion to another or had left the Reversion in himselfe or if the father had enfeoffed a stranger for the advancement of his younger sonnes or of his daughter or for the paiment of his debts and after doe enfeoffe his heire in all these cases the Lord had beene prevented of the wardship of his Tenants heire and he not helped by the Statute of Marleb because those conveyances were in judgement of the law no Collusion neither apparent nor averable within the intent and meaning of the said Statutes But now by these Statutes of 32. Coo. 6. Sir George Cursons case 76. H. 8. in all these cases and the like Collusion may be averred for a third part of the Land so conveyed and the conveyance pro tempore avoided Re. 8. Rep. Wignts case 163. Inst 78. a. or the wardship primer sesin in case of land holden of a common person and for wardship of primer sesin in case of land holden of the King for a third part of the land but as these Statutes in many other cases gives remedy to the King and other Lords where they had none before so in other cases these Statutes give the Tenant benesit where he had none before And therefore where the King Coo. 8. Wights case 3. 164. b. Coo. 10. Leon. Lowes case 82 83. or the Lord by the Statute of Marleb might take advantage by Collusion apparent or where the Tenant conveyes the land to his sonne and heire under age of an estate in fee simple might have had the whole land so conveyed by fraud in ward now by these Statutes because they did enable him to convey the two parts for preferment of his childe the King shall have but a third part in such case this Statute of 34. H. 8. cap. 5. concerning Collusions to this purpose that if the Tenant being seised of an estate of inheritance doe by Act executed in his life time convey by covin to any person his land holden c. for or with divers Remainders over in Fee to a stranger or to his owne right heires or shall make by fraud contrary to this Act any estate conditions mesnalties tenures or conveyances to the intent to defraud the King or the Lords of these wardships c. which ought to come to them after their tenants death by force of this Statute and of the Statute of 32. H. 8. the said estates and conveyances being found by Office to be so made by covin There the King shall have the wardship and other profits 2. 3. Eliz. Dyer 193. c. according to the intent of the said Statute as though no such estates had beene made untill the said office be lawfully undone by traverse or otherwise and other Lords shall have their remedy in such cases as their wardships of body and lands by the Writ of Wards and shall distraine and averre for their reliefes heriots or other profits as if no such estates had beene made But observe 10. Eliz. Dyer 276. Re. 8.165 a. Wights case that it is adjudged upon these Statutes of 32. H. 8. and 34. H.
office to be above 5. li. yearely value and under twentie pounds per annum and then greater fees are allowed by the said Statute and upon suing either of those Liveries no other Primer seisin is payed then the meane profits of the lands inured from the ancestors death to the suing of the Livery according to the description thereof by the Stat. Prae. Rs. cap. 3. See before Title Primer seisin which meane profits may also be saved by tender of the Livery and so the King hath nothing for Primer seisin And lastly a speciall Livery which the Court of Wards sayes ought not to bee sued unlesse the land be above the yearely value of 20. li. found by office and if a man will sue a speciall Livery for lands of a lesse value he must confesse his land to be above that value Howbeit the law is taken otherwise in our bookes where mention is of a speciall Livery without speaking of the value of the land and reason proves it may be so called because it containes a speciall pardon of all entry intrusions meane rates c. which may well be granted upon a lesser quantitie of lands as upon a greater and upon this speciall Livery no primer sesin other than the said meane profits is taken by the name of a primer seisin but they use to take a sum of money to the Kings use by the name of a fine for his Maiesties speciall grace and pardon vouchsafed to his Majesties Subjects by the faid speciall liveries to be sued of and in possession and the heire hath not him in ward or if the livery be so sued of and in possession and the heire hath not beene in ward or if the livery be to be sued of a Reversion halfe a yeares value which agreeth by the common proportion above in the bookes named primer sesin and upon tender of any of these Liveries they shall use to take a bond for that shall be due to the King upon Livery sued for feare of the heires death within sixe moneths before the Livery sued out and note that a speciall Livery gives the heire licence to enter and take the profits of the lands immediatly without suing any writ of aetate probanda as if a Livery had been thereof sued and pardons all issues meane rates and profits of the lands but yet the same are paied before he can have such livery and pardons all entries and entrasions by the heire or any his Ancestors and fines for alienations without licence and yet they of the Exchequer notwithstanding such Livety use to send processe to the Sheriffe to seise the land after such alienation and to compell the heire to pay a fine and to sue a pardon for such alienation without licence so that the benefit of a speciall livery above a generall as I conceive is little other than that the heire thereby avoids the trouble and charge of suing his writ de aetate probanda and prevent the danger of misusing his Livery and by consequence the reseising of this land without great inconveniences they appeare in part in this Title and more amply Praerog Rs. fo 19. 80 81. c. Ouster le maine Is in all other cases where Liveries is not to be sued as where the Land is holden to be in common Knights Service of the King as of some Honour Mannor Castle c. and the heire within age no Livery shall be sued and yet because no man may enter upon the Kings possession without his leave the heire at his full age shall sue an Ouster le main cum exitibus but in the first yeare of Queene Elizabeth Inst fo 77. a. 1. Eliz. Dyer 168. a. it was questioned in the Court of Wards whether it should be a Livery Cum exitibus or an Ouster le maine and there agreed that Ouster le maine is onely of Lands in the Kings hands holden of others then of the King but yet ordered that a Livery in this case una cum exitibus should be granted by the name of Ouster le maine because the course of that Court was so by the space of 30. yeares before where note that no meane rates shall be forfeited for land holden of the King by common Knights service though there be no tander of Livery which is the reason why Ouster le maine is granted cum exitibus So if the Escheator claime land by vertue of dying c. before office Stat. de Eschetor mode 29. E. 1. and after by the office no title is found for the King the partie that ought to have againe the land shall have an Ouster le main cum exitibus So if the Eschetor will seise land found by office to be holden of the Archbishop of Canterbury or of such other person as are exempt in the first Chapter of the Statute deprae Rs. they shall have an Ouster le main cum exitibus So of lands holdan in Capite if a Lease be made for life the Remainder over to a stranger and Tenant for life dies this matter being found by Office if the King seise the Land he in the Ramainder shall have an Ouster le main cum exitibus So where two hold land joyntly of the King in Capite F. N. B. 257. g. and one dyeth and the matter is found by office which notwithstanding the King seiseth the land the Survivor shall have an Ouster le main cum exitibus So if the heire of Tenant in Soccage in Capite be under the age of fourteene yeares at his ancestors death 35. H. 6.52 F. N. B. 256. c. Stam. prae 12. b. and the matter is found by office and yet the Escheator seiseth the land for a primer seisin le procheine de kinne to the heire shall have an Ouster le maine cum exitibus but yet in that case after the 14. the Escheator may seise and the heire must have Livery and for want of tender thereof he shall lose meane rates from his age of 14. So if Tenant by Soccage in Capite die also seised of other lands holden of other Lords then of the King by Knights service or Soccage 45. Ed. 3.19 a. 4. Eliz. Dyer 213. which descend to the heire under age and after office thereof found the Escheator seiseth the lands into the Kings hands the Lord of whom the land is holden by Knights service in the one case and procheine kinne in the other case shall have the lands out of the Kings hands by Ouster le maine cum exitibus And if the heire be of full age at his Ancestors death he himselfe in both cases shall have the Ouster le maine And generally in all cases whereupon the matter is discust Stam. prae Rs. fo 77.6 et 82. 21. H. 7.5 29. Ass 43. it appeareth either upon the returne of the office or upon trover monstrous de droit ou petition de droit and the like as the cause shall require that the King had no right or
A LEARNED TREATISE CONCERNING WARDS AND LIVERIES WRITTEN By the Right Honourable and learned Gentleman Sr. James Ley Knight and Baronet Earle of Marlebrough Lord high Treasurer of England when he was Atturney of his Majesties Court of WARDS and LIVERIES WHEREIN IS SET FORTH the learning concerning Wards and Liveries collected and well digested out of the yeare-bookes and other authorities of the Law for the benefit of all that are Studious London printed by G. Bishop and R. White for Henry Shepheard and Henry Twyford and are to be sold at the signe of the Bible in Chancery-Lane and at the three Daggers in Fleete-streete 1642. THE EPISTLE DEDICATORY TO THE STUDENTS OF the Common Law of England T Is not to commend this Work that this is written for that it will it selfe nor is it to present unto the curious Readers view novelties but ancient learning usefully digested the common Law of England that is defined to be Lex non Scripta is best knowne by the multitudes of particular cases reported and set downe in the severall yeare-bookes and other reports of the Law and in them the severall resolutions of different natures being set downe as in time they hapned to be argued without having regard to report together all such cases as concerned one kinde of learning breeds such confusion that the painefull student must be very carefull under his severall titles in his common-place-bookes to take notes with reference to the bookes from whence he takes them proper to be applied to the title under which he writes it and likewise carefully to coate his bookes to each other or otherwise upon sundry occasions hee may be driven to tumble up and downe the severall bookes to resolve himselfe and misse too of such good resolutions as the bookes would afford him if his memorie which may easily faile be not admirable This small Epitomie will-prevent that trouble and helpe more then any abridgment extant the laborious Student to know and find out the learning concerning wards and Liveries no small part of our Law nor easiest learning It was written by the right Honorable and learned Sir James Ley Earle of Marlebrough Lord High Treasurer of England when hee was Atturney of the Wards and Liveries for his owne private use but now presented to publike view for the common good of the Students of the Law The learning concerning Wards and Liveries was not practised in one peculiar Court nor differences concerning Wards lands not confined to any particular Court but left to be proceeded in all Courts proper for the nature of the causes till of late yeares but now by a Statute made 32. H. 8. cap. 46. A peculiar Court knowne by the name of the Court of Wards is erected wherein all things that concerne the Kings Wards is heard and determined so that now the Law as to Wards being to be onely practised there This Treatise will be of good use to him that intends that practise for in it will be found very much of the learning concerning Wards for him that desires the knowledge of such learning It was chiefely published and to him is wisht encrease of Learning Farewell Instructions for our Mr. of our Wards and Liveries for the better authorizing and directing of him in the execution of his Office and performance of our service FIrst our pleasure is and we doe declare the Master of our Wards shall and may survey and dispose of all and every of our Wards Idiots and Lunatiques and respectively of their Lands Tenements Hereditaments Chattells goods properties interests rights titles Intrusions Arrerages and Meane-rates and all Liveries Ouster le maines and ancient Mannors and all Advowsons and presentations of Churches Herriots Reliefes Coppyholds Woods Mines and Quarries of any our Wards and of all duties belonging or to belong to us by reason of any Tenure That the Master of the Wards shall from time to time call unto him one or more of such persons as we nominate to be his assistants and shall use the assistance and advice of the mor one of them at a place certaine and times certaine be limited and appointed by the Master for the sitting upon the matters within his survey and disposition so that our Tenants and Suitors may make their repaire thereunto That the Master with the advice aforesaid shall have power and authoritie to compound for the Wardships Idiots Lunatiques and other duties aforesaid and to assesse all Fines install all payments for the matters aforesaid and to take Bond and Securitie in our name for the same and to commit them to the safe custody of our Clerke of our Wards and Liveries to our use and upon full payment to cause the same to bee delivered up and cancelled and also to discharge and renew any Bond or Securities as occasions shall require That there bee ordained a speciall seale for our Wards Liâ—eries and Tenures and for our 〈◊〉 â—…ising by reason thereof which 〈◊〉 shall be in the custody of the said Master of the Wards and that no other seale shall bee used for or concerning any the matters or causes aforesaid That the Master with the advice aforesaid shall have power and authoritie to grant Wardships for Fines to make Leases of Wards Lands and of Lands in our hands for want of Livery or Ouster le maine for Fines and reserving of rents and to grant the custody of Idiots and Lunatiques and their goods and Lands and to compound for meane rates and to mitigate and remit as well the forfeitures of such bondes and meane rates as also to allow reasonable recompence to prosecutors such as doe service in the cases aforesaid That the Mastor with the advice aforesaid shall have power and authoritie to give direction to any of our Courts and unto the officers thereof and unto any of our Ministers and officers as well for the proceedings and prosecution of any suites and pleas and finding of offices and inquisitions making of certificates and other services as also for the stay surceasing or superseding thereof and that no direction shall be given to the contrary or otherwise by any of our chiefe Officers touching the premisses That all petitions or suites made to us touching the causes aforesaid shall be either referred or directed to the said Master who shall have power with the advice aforesaid to answer and determine the same and that petition suite or information shall not be received by our councell of revenew touching the premisses but that the same shall bee made and belong unto the Master of the Wards and Liveries And whereas the Kings most excellent Majestie by Indenture bearing date 10. Ianuarij 14. Jacobi made betweene his Majestie on the one part and Sir Francis Bacon Knight Lord virulam and Lord Chancellour of England Sir John Daccombe Knight deceased Thomas Murrey Esquire our Secretary Sir James Fullerton Knight one of the Gentlemen of our Bedchamber John Walter Esquire our Atturney Generall and Thomas Trevor Esquire our Sollicitor
Court of Wards that the heire was in by descent and that there should be a wardship and yet nothing descended but by a possibility And in every wardship there must be a descent Re. 10.83 a. Leonard Low Case except it be in some cases upon the Statute de 32. 34. H. 8. quem vide in le prochein Title Where Re. 3.62 a. Lincolne Colledge Case if the issue in tayle under age enters into the joynture of his mother by force of the Stat. 11. H. 7. c. 20. for a forfeiture by her alienation thereof he shall not be in ward because he hath the land in manner of a purchase and not by descent So if the father leaseth to his son and heire for life and dyeth 9. Ed. 3.4.15 Co. 6. Sir Geo Cursons ca. 76. and the fee descends to the son under age so that the freehold is mergd in the inheritance yet he shall not be in ward for the land because he had the possession by purchase Si soit bona fide valet ut c. And generally in all other cases where the heire hath the land by purchase without collusion is where he buyes the land of his father bona fide and for valuable consideration or in the like cases Coo. 10. Re. Leon. Lowes case 83. b. t. Inst 78. â— for if it be by collusion then there will bee a wardship by the Stat. of Marleb and 34. H. 8. cap. 5. though the heire had not the land by descent whereof after see in the Title Collusion If the King Knight the heire apparent of his owne Tenant Plo. Com. fo 268. Ratclifts Case Coo. 6. Sir Dru Druries Case 74. Coo. 8. Sir Hen. Constables Case 171.2 or of the tenant of a common person under age and in life of his Ancestor hee shall not bee in ward though he be under age at the death of his Ancestor neither for body nor land but shall for all purposes bee reputed of full age because the king by knighting him hath adjudged him of full age and able to doe knights service But if he knight him after his Ancecestors death while he is in ward Stat. Mag. Carta cap. 3. hee is thereby presently out of ward for his body but for his land shall be in ward till his full age of one and twenty yeares Quem vide apres en le Title Marriage as also some other Cases where the heire shall be out of wardship for his body though his lands remaine still in ward Wardships and Primer Seisin By these Statutes of 32. H. 8. c. 1. a. 34. H. 8. cap. 5. of Wills WHereas the words of the Statute are That every person having Lands Tenements or Hereditaments of an estate in fee simple per Knights service in Capite of the King or of any other Lord in common knights service c. May by his last Will in writing by act executed in his life time give dispose will or assigne two parts thereof for advancement of his wife preferment of his children or paying of his debts c. leaving to the King wardship and primer seisin and to no other Lords wardship of so much of the same lands as shall amount to the cleare yearely value of a third part thereof It is to be considered that these Statutes give to the tenant power to devise his lands by his last will in escript which he could not doe before these Statutes which was some prejudice to the Lords of these lands for their wardships of the two parts so devised Coo. 6. Re. Sir Geo Cursons Case 76. a. So then they doe give benefit to the King and other Lords to have wardships c. In cases when they shall have had none before though the Ancestor neither dyed seised nor any land descended to his heire which are contrary to the rules of the Common Law which see before in the last Title And where the father conveyes his land holden c. by act executed in his life time for advancement of his wife preferment of his children or payment of his debts and dies his heire under age here is neither dying seised nor descent and yet the Statutes gives a third part of these lands to be in ward during the minority of his heire notwithstanding it shall at his full age goe according to his fathers disposition because the conveyance was only avoided during the minority for benefit of Wards by the Statutes Co. Re. 8. Digbies Ca. 165. b. and not utterly void but these Statutes doe in no case give wardship where there is no heire as where the father after such conveyance is attainted of Treason and dyed his issue being under age here the third part shall not be in ward by the Statute Re. 10.85 a. t. Leon. Lowes Case because the Ancestor dies without heire in regard of a corruption of his blood And note where the Ancestor deviseth by his last will land holden c. to his wife Dyer 150. b. St. 34. H. 8. ca. 5. Coo. 8. Sir Richard Pexals Case 85. a. yonger children c. the will is not avoided only during the minority for the benefit of wardships as in the said Cases of acts executed but the will is utterly void for a third part by those Statutes and therefore he hath the third part by course of descent by the Common Law and the will is good only for the other two parts whereof there shall bee no wardship but only for the third part descended which the heire also shall have a son plein age notwithstanding the will Coo. 3. But. Bak. Case 35. for if a man devise a rent out of all the lands holden c. this is void to charge a third part of the lands notwithstanding the land descends charge of the rent But where the land holden c. are deviseable per custome in London and some other townes theâ—e all may be devised and the will is not void for a third part because the land was deviseable before the Statutes which are in the affirmative and therefore doe not destroy the custome but the case But the saying of these Statutes doe avoid the will pro tempore Coo. Re. 3.35 a. b. But. Bakers Case and give a third part to the King for a wardship during the minority c. And yet the heire is barred by custome to have the third part at his full age as before in the third case of disposition by act executed he is barred by the conveyance It is seen who shall be said to be a person having of lands tenements or hereditaments holden within the meaning of these Statutes and that will best appeare by cases of difficulty for of common persons having of lands c. I purpose not to speake plaine matters need no demonstration a disseised of land in capite which is put out of possession and hath only a right of lands Coo. 3. But. Bak. Case 35. a.
wife for life the remainder for one of his sons the remainder is no advancement to the sonne to give wardship either for the body or third part of the land by these statutes Ibid. Coo. 2. Binghams case 94. because the mother is the Kings tenant during her life by advancement and such a remainder which may give wardship of body and land at the Common Law is onely intended by the word Remainder in these Statutes which this Remainder doth not the reason is about the title of the ward But a remainder which is in part of a reversion Coo. 10. Leon. Lowes ca. 81. a. as if a man makes a lease for life or yeares and after grants the reversion for life or in taile le remainder in fee to his sonne and after the grant for life or Donee in tayle dies without issue it shall be said advancement within these Statutes and shall give cause of wardship of the body during the life of the tenant for life because this remainder by common Law Coo. 9. Holts Case 132. b. t. shall draw ward and marriage as also a revorsion doth in such case give wardship because he in reversion is immediate tenant to the Lord and not tenant in tayle or for life If the son and heire or any other son purchase land of his father bona fide for money c. this is no preferment for the childe within these meaning of these Statutes and therefore there shall bee no third part of these lands taken for wardship or primer seisin because it was land purchased by the childe and not given by the father to prefer him This Statute gives authority disjunctive to make a disposition either by act executed or by will of two parts of land holden c. And thereupon if a man by act executed in his life time dispose of two parts for the advancement of his wife Coo. 3. But. Bakers Case and preferment of his children and payment of his debts he cannot devise the third part thereof because he had executed his authority before but if hee had aliened two parts to a stranger bona fide then he might also devise two parts of the third part remaining because his alienation to a stranger is out of these Statutes If a man alien two parts for advancement of his wife Re. 6.18 Sir Edw. Cleres Case c. he may also make a feoffement of the third part to a stranger or he may make a feoffement of the third part to the use of his last will and by his will may declare the use of that feoffement to a stranger But here note that the land passeth by feoffement and not by will and that the will served but as a limitation of the use upon the feoffement and yet in that case a third part of the two parts first disposed of shall be in ward If a man by act executed conveyes two parts for life in taile for advancement of his wife 35. El. Clem. Howards Case cited in Coo. 10. Re. Leon. Lowes Case 81. a. c. he may also devise the reversion of the same two parts because the Statute gives him full power over the two parts to dispose it as he will by will or otherwise It is to be observed that these Statutes are to be expounded to save a third part for wardship and primer seisin when the advancement continues in the advanced without alteration either by descent or alienation and not otherwise Wherefore Coo. 2. Binghams Case 93. b. 94. a. Coo. 9. Holts Case 132. a. if the son advanced aliens bona fide or dies and the land descends to his heire in the life of the father that gave the land there shall be no wardship of a third part by these Statutes the same law is when the land is conveyed for the advancement of the wife or payment of the debts Whereas these Statutes serve to be in ward Coo. Re. 10. Leon. Lowes Case 84. a. m. c. lands to the full yearely value of a third part of the whole it is to be noted that the same value shall be accounted as the lands be of value at the Ancestors death The thing of a casuall and uncertaine value may not be left for the third part Coo. Leon. Lowes Case 81. a. t. R. 3.32 b. But. Bak. Case as a franchise to have felons goods and of fugitives and out of fines outlawes fines amerciaments which have not been accustomably let unto farme for yearely rent but if they have been so let then they may be left for the third part The King or the Lord ought to have his third part immediatly after the death of the tenant But. Bakers Case 34. and shall not expect upon any uncertainty wherefore if a man seised of three acres holden in Capite c. leaseth one acre for life and after deviseth the other two acres and dyes and after the tenant for life dies yet the devise is void for a third part of the two parts because the third part did not descend immediately to the heire In construction of these Statutes 35. H. 8. Bro. Testaments 29. an equality hath been used so that for the levying and making up of a third part saved by these Statutes parties alike interessed shall equally and alike be respected wherefore if a man have three severall Mannors holden of three severall Lords by Knights service Coo. 8. Virgill Parkers Case 173. b. every Mannor being of equall value he cannot devise two Mannors and leave the third to descend according to the generality of the words of these Statutes for then he should prejudice the other two Lords of their wardships but he must devise two parts of every Mannor and leave to descend a third part of every Mannor to make a wardship to every Lord. So if a man seised of land holden Coo. Virgill Parker 173. b. c. disposeth before mariage one moity for a joynture of his wife that shall be and after marriage disposeth the other for payment of his debts and legacies and the third part for the King as other Lords shall be equally taken out of both halfes and not out of the halfe last disposed So if the other deviseth the land Coo. 9.133 b. Mat. Menes Case to his eldest son one part and so to foure other sons like parts whereof one part only is holden c. the third of the whole shall be made up equally out of every severall third part of a younger brother a like quantity if the King or the Lord hath once the benefit of the Statutes against one son the Statutes are satisfied and he can have no further benefit therof against another-son as if the father convey land holden c. to one son in tayle the remainder over to another of his sons in tayle or in fee Coo. 9. Tho. Holts Case 132. a. and after the fathers death the King or the Lord
restitution therunto and the profits thereof he is driven to sue to the King for his speciall grace and pardon To prevent which penalties the Law requireth that the heire doe at times therefore by the Law appointed sue to the King to have such lands re-delivered unto him by his highnesse They cannot seize before the office which is called in Law saving of Livery till which be done the Escheator in the County where the land lies may to the Kings use seise and take the whole profits of the land Coo. 9. Sir Geo. Reinolds case 95. b. Coo. 8. Hales Case 172. b. which notwithstanding is not used to be done till office be found and then the King is in possession without seisure and is to be answered of all profits since his Tenants death till Livery sued forth then he doth his homage and hath the land delivered unto him out of the Kings hands and paieth the King his Primer seisin whereof see before in the last Title But because to your suing of Livery many things are to be done with great care Coo. 8. Hales Case 172. b. and still the Lord gives the heire 6.3 moneths time for the prosecuting thereof if the heire at his full age having been in Ward or at the death of his ancestors if he after his full age tender his Livery and pursue it with effect he shall have as much benefit by his tender as if he had done homage and had sued his Livery And therefore if the heire after the tender dies within the said 6.3 moneths Coo. 9. Holts Case 132. so that the prosecution of the Livery is become impossible by the act of God In providentia excusat legem and the interest of the King to Primer seisin is determined as if he had taken homage of the heire when he made his tender but the meane rates if any were forfeited are not discharged And so for the same reason the heire after such tender may bargain and sell or make other disposition of the land and the same is good in law if he die within the said 6. moneths Instructions by the new institutions the sur veon and hath as much power over it as if he had sued his Livery this tender at 6. moneths end is used to be continued over for 6. more and so from 6. moneths to 6. moneths as long as the Master of the Wards shall give leave and in the meane time the heire hath like benefit thereof as if he had sued his Livery Livery shall not be sued but where the Kings Tenant dyed seised of lands holden by Knights service in Capite Inst 77. a. or Soccage in Capite If the Tenure be Knights service in Capite Stat. Marleb ca. 16. viz. F. N B. 61. the King hath the same prerogative for his Livery that he hath in case of Wardship whereof see before to have a Livery sued of lands holden by his Tenant of others either by Knights service or Soccage or for lands which he hath in Ward by reason of Ward or that are holden of his Tenants or that are holden of a Bishop by a Tenant that dyeth while the temporalties of a Bishoprick are in the Kings hands But if the Tenure be in Soccage in Capite 4. El. Dy. 113. F. N. B. 256. b. 32. H. 8 Br. Gard. 97. 45. E. 3.19 35. H. 8.6.52 F. N B 259. Inst 77. the King as he shall have primer seisin and a Livery to be sued of no other lands holden by his Tenant of others besides the land holden by Soccage in Capite so also the heire of such Tenant shall not sue Livery nor pay primer seisin if at the death of his ancestor he bee under the age of 14. but in every of these cases they to whom the body belongeth shall have an Ouster le maine una cum exitibus viz. the Lord of whom the lands are holden by Knights service And here in the last case 20. Eliz. Dyer 362. howbeit when he attaines his full age of 14. yeares hee must sue Livery or else shall lose the meane rates But bee the heire of the Tenant by Knights service in Capite under age at the death of his ancestor West 1. cap. 22. St. 39 H 6. ca. 2. a. Stam. prae Rs. 13. yet at his full age he shall sue Livery although he hath been in Ward as well as though he had been of full age at the death of his ancestor though with some difference for the primer seisin as appears Title Primer seisin The time after the death of the Kings Tenant for his heire to sue Livery is of lands in question holden by Knights service in Capite be the heire in Ward and then comes to full age or be of full age at his ancestors death then viz. the heire male at 21. the heire female above 14. at the death of the ancestor then if the possession of the free-hold doe descend immediately after the ancestors death to the heire the Livery is to be sued forthwith If only a reversion doe descend then not till after the death of the particular Tenant if it be a reversion without rent incident thereunto howbeit the heire at this day hath election either to sue immediately in the life of the particular Tenant paving for Primer feisin but halfe a yeares value or to tarry till after his death Inst 77. a. Dyer 14. Eliz. 308. b. and then to sue it and pay a whole yeares value of the land but if it be in reversion with a rent incident thereunto and he sueth out his Livery in the life of the Tenant he may doe so and shall pay for Primer seisin but one yeares value of the rent And the time of the heire of Tenant by Soccage in Capite to sue Livery is Coo. 9. Hales case 132. b. Re. 9.81 Leon. Lowes case immediatly upon the death of the Ancestor with the same observation of possession or Reversion as is for the heire of the Tenant by Knights service in Capite if he be above 14. years of age at the death of his ancestor and if hee be under then hee is to sue no Livery till he be 21. yeares as is afore shewed But the time which the law hath appointed for Soccage of Livery may by Accident be altered or changed Co. Re. 9.173 Sir Hen. Constables case Coo. Re. 6.74 Sir Dru Druries case as where the sonne and heire is a Knight in the life of his father and his father dies before he be of full age his Livery must be sued or tendred immediatly on his fathers death and before his full age because the King by Knighting him hath adjudged him of full age So in diebus illis if the father had entred into Religion his heire being of full age his heire should have sued Livery presently and should not have expected his fathers naturall death No Livery can be sued of lands above the yearely value of 5.
title to the thing he seised there judgement is given that the Kings hands shall be amoved and thereupon the writ of Amovcas manus or Ouster le maine is awarded to the Escheator By the Common Law the Ouster le main was never awarded Vna cum exitibus though it did so plainely appeare that the King ought not to have seised Art Sup Ca. 19. 29. Ed. 1. Statute de Escheator but this was the helpe by two Statutes in the 28. and 29. yeares of King Ed. 1. by which was provided that where land is seised into the Kings hands without just cause the profit thereof in the meane time shall be wholly restored to him that ought to have had the land and hath received the dammages upon Ouster le main cum ixitibus But if by the same Stat. of Ed. 1. it is provided that if after such Ouster le main cum exitibus a title doth appeare for the King in Chancery Kings Bench Exchequer c. whereby the King is intitled of a title growne before the Ouster le main although the party could have had no Ouster le maine if the Records had then appeared without avoiding them yet in that they did not then appeare he should not be now cast out of possession without a Scire facias against him upon which if he be warned and doe not come or commeth and say nothing against the Kings Title the land shall be reseised and the King reseised the King answered of the profits from the time of the first office though this Statute make no mention of Livery but only of Ouster le maine yet by equity Liveries are taken to be within the meaning thereof And here note this difference that in the cases last mentioned no seisin shall be before Scire facias and against the party yet in the case above and Title Liveries of a livery the King he may reseise without office whereof see at large Title Reseisor in Stamf. prae Rs. 856. Office AN Office is an Inquest by twelve men at the least taken before the Escheator assisted with the Feodry or the Commissioners of things which convert the Kings revenue to finde his Title and as a matter of Record requisite bv law to give the King an actuall and perfect seisin or possession of the thing whereof the office is found as of Escheators Wards land forfeited or aliened without licence and the like To pursue which Descriptions OFfices concerning Wardships 4. Ed. 4.24 33. H. 8. c. 22. of which only I speake the Escheator may finde as well by office as Virtute brevis but with this difference Added by Statute that if the land whereof the office is to be found bee of 60. pound yearly value or above and holden of the King the Escheator forfeits 5. pounds if hee finds any office thereof without the Kings writ directed to him for that purpose Writs or commission in nature hereof whereupon offices are to be found may not be made out of the Chancery or other Court having authority to make the same but by warrant or bill signed by the Mr. Survey or of the court of Wards 33. H. 8. ca. 12. or one of them directed to the Chancellour or officer having power to award the same writs Such or the Commissions are the diem clausit extremum Mandamus devenerunt Co. 8. p. Stoughtons Case 169. quae plura Melius inquirendum datum nobis intelligi the severall natures whereof in what cases they be so see Title Livery To which may be added that after the diem clausit or a mandamus awarded an office found there shall goe forth no more writs of the same kind to enquire further therefore at the instance of the same party But where the office is imperfectly found against the King in such case the King cannot traverse the office as a subject may upon surmise in the Court of Wards that the lands are of greater value that they are holden of other services that the Tenant was seised of another estate that these are more heires or other heires then were found in the first office or where by the first office the heire was found within age where indeed the Tenant dyed without heire so that the land ought to escheate or where by the first office one is found heire of full age where he was under age and generally where his highnesse hath a better Title then was found for him by the first office a Melius inquirendum may bee awarded in the Kings behalfe But in good discretion Co. 8. Paris Stoughtons case 169. no Melius inquirendum should be awarded after a perfect office found against the King without view of some record or other pregnant matter to intitle the King If upon the Melius inquirendum the office be found against the King Ibidem 169. b. he shall not have a second Melius but is found by the office even as a subject as against whom his traverse wch see Title Traverse And note that upon the last office upon the melius makes the first office void 12. Eliz. Dyer 2 â—2 Stat. E. 6. Cap. 8. as if upon the diem it be found that the land was holden of the King sed per quae servitia Iur. ignorant And thereupon the Melius awarded it is found that the tenure of a subject and all other points uncertaine as the Tenure the State the Value c. the first office is void When such inquest is found for the King 21. Ed. 3.2 this finding is called an office and it is a Title for the King whereof the Inquest was taken of such validity that when the King is once seised by office the seisin the office remaines till it bee discharged by matter of as high a nature as the office was 1. H. 7.19 viz. matter of Record namely a Livery or Ouster le maine But if an office found for a subject 21. Ed. 3.2 it makes no Title for him but is and may be used as matter of evidence to prove his Title An office is sufficient to entitle the King Stat. 1. H. 8. Ca. 8.3 H. 8. Ca. 22. Coo. 1. p. although it be never returned for if it doe appeare by the examination of the Escheator that hath upon such office seised the lands into the Kings hands it is sufficient But offices are usually returned if they be found by Writ or Commission into the Chancery whence the Writ or Commission issued Alton Woods 42. Coo. 4. p. Sadlers case 5.7 18. El. ca. 12. and from thence to the Clerkes of the Bagge transcripted into the Exchequer and into the Court of Wards but offices found Virtute officii without any Writ or Commission the Escheater may at his choice returne them either into the Chancery or Exchequer And if they be found in the County Palatine of Lancastar Chester or Durham either by Writ or otherwise they are to be thence transcripted into the Court of
Wards When an office is found inttiling the King to a Wardship 16. Ed. 4.1 Coo. 4. p. Sadlers case 59. it relates to the time of the ancestors death and gives the King all the meane profits of his land for that time because the King hath the wardship Ratione prioris tituli viz. by reason of his seigniory and loseth his rent and services in the meane time But an office to entitle the King to an Ideot Coo. 8. p. Comsors case 180. relates for the meane profits and the land no further then the finding the office because the King hath the custody of an Ideot Jure protectionis Rege protection commeth by the office found and not before but yet for avoiding of mean conveiances of his land made by the Ideot the office hath relation to the Ideots Nativity An office is requisite to be found after the death of the Kings Tenant for two causes 4. Eliz. Dyer 3 1. H. 7.19 c. Coo. 9. P. Sir Geo. Reynolds case 95. b. first for the dignity of the Kings person who cannot take nor depart with any inheritance or freehold but by matter of record Secondly because it puts the King presently upon the office found in actuall and full possession of the Wards lands and the profits thereof since his Ancestors death before any service or entrey by the Escheators which actuall possession the King hath not before Office For although by Stamf. he hath before office possession in law cast upon him by right of his signiory Sum. prae Rs. 54.69 which he may by entry or seisure of his Escheators before office reduce to an actuall possession sufficient to enable him to keepe the lands in his owne hands and to take the profits thereof yet he hath not till office be found a perfect actuall possession such as may enable him to grant or lease the land to his Committee Because the statute of 18. H. 6. provivideth that all letters patents made by the King of lands or Ten Stat. 18. H. 6. C. b. before office found and returned or within one Moneth after unlesse it be to him that tendreth his traverse the same office shall be voyd But the Master of the Wards may within that moneth after office make a release of Wards or Idiots lands to other then he that tenders a Traverse being enabled thereunto by the Stat. Stat. 32. H. 8. Ca. 46. 32. H. 8. which is generall and a latter Statute 18. Hen. 6. This seemes to be the reason why our bookes say that in case of Wardship of land the King is presently by the office in possession before seisure Coo. 1. p. Sir Geo. Cursons ca. 956. that hee hath not possession till office and that at this day the Escheator cannot seise any lands into the Kings hands for Wardship or other cause before the kings Title be first found by office 1 H. 7 17. 4. H. 7.1 5. Ed. 1. B. offic 55. which is to be understood to enable him by such seisure to grant the lands before office found Coo. 8. Paris Stoughtons case 169. for to all other purposes it seemes not against law that the Escheator may at this day seise a Wards lands before office as the words of the diem directed him to doe and as many bookes warrant whereof see Stamf. Prae. Rs. fo 12.14.78 b. But because before office it is doubtfull whether the King have Title or no the Esâ—hraters doe generally of their owne discretion ever since the Statute of Lincoine 79. E. 1. forbeare to seise before office thereby to avoid the Kings great trouble in suing the Ouster le maine which he was driven to doe by the Escheators seisure only though afterwards the office found did not intitle the King But the King as all other Lord 20. Ed. 4 11. Stam. prae Rs. 54.69 that are common persons is in the judgement of Law presently upon his Tenants death in possession of the body of his Ward in right of his seigniory 30. H. 6. Br. Patents 74. 11. Ed. 4.7 and may grant away the Wardship thereof before or after seisure and before office found because the said Statute of 18. H. 6. extends not to the body or in the ancestors life time may grant it Quando event de haered as our bookes and common experience agree What words in Offices make a Tenure See before Title Tenure BUt by that which hath been said it may be collected how great inconveniences may issue as well to the King by suppressing his Tenures and consequently withdrawing one of his ancientest revenues of the Crowne as to his subjects by finding the lands to be holden of the King where in truth they are not if corruption should be used in the finding of offices to prevent which divers Statutes have been made under severall penalties concerning an upright and just demeanor therein as well by the Kings Ministers as Jurors and the parties whom it may concerue The substance of most whereof follow 34. Ed. 3. c. 19. 36. Ed. 3. c. 13. 8. H. 6. c. 16. 18. H. 6. c. 7. All offices not found in good townes openly and by men of good fame and impanelled by the Sheriffe and having sufficiently in the same Countie and by Indenture betweene the Escheator and the Jurours shall be voide 33. H. 6.17 33. H. 8.2 Escheators ought to finde offices by vertue of writs within one moneth after the receipt thereof and in good townes and in open places and shall take no fees therefore but 40. shillings for executing every writ Escheators ought to bee men of 40. markes per annum at the least 1. H. 8.8 except Escheators in Cities Townes and Counties Palatine of Lancaster and Chester Escheators or Commissioners shall not returne any office not found by the oathes of 12. men and indented and by them sealed Every man shall bee admitted by the Escheators c. to give evidence openly in his presence at the finding of offices Escheators c. ought to receive offices found by the Jury without delay and to deliver the Counterpart thereof indented and sealed by himselfe to the Jury and the rest with the foreman of the Jury to the end that the Escheators may not imbesill or change such offices Stat. 8. H. 6. Ca. 16. 18. H. 6.7 All offices are to bee returned in the Chancery or Exchequer within one Moneth after the taking thereof 33. H. 8.22 Stat. 1. H. 8.8 7. H. 8.2 and the officers of the Chancery or Exchequer ought to receive the same and to fill it within 3. or 4. dayes after receipt and are thence to be transcripted into the Court of Wards as above is set forth Tenant for yeares Copyholder Stat. 2. Ed. 6.8 and he which hath a rent or other profit out of the Wards lands which are not found in the office shall have and enjoy these as if no such office had beene found which before this Statute he could not have VVhere an heire of full age is by an office found to be under age he may have his writ de aetate probanda and may sue his Livery or Ouster le maine and shall be restored to the profit of his land so if the heire under age be found to be of lesser age then in truth he is at his full age he may have like remedy and shall be restored to the profit of his lands from the time of his very full age notwithstanding such untrue office FINIS