sayd termes according to their leases agaynst suche recoueries euen as yf none such had be suffered In whiche case neuertheles the recouerer after such recouery had shal haue lyke remedy against the termers by auowry or action of dette for rentes and seruices reserued vpon the same lesses being dew afore the same recoueries and lyke actions for waste done after the same recoueries as the lessours myght haue had if no such recouery had be had Furthermore no statute staple statute marchant nor executioÌ„ by elegit shal be herafter auoyded by any such fayned recouery but like remedy shal be had to auoyd and falsefie the said recoueries as by the premisses is ordeined for the fermour or lessee for terme of yeares ⧠An acte for auoiding of recoueries by collusion against tenaÌ„tes for terme of lyfe aÌ„ 32. HeÌ„ 8. WHere diuerse persons being seased of landes tenementes and hereditameÌ„tes as tenaÌ„tes by yâ— courtesy of Englande or otherwise onely for terme of life or liues haue heretofore suffred other persons by agremeÌ„t or couin betwene them had to recouer the same against them in the kinges court by reason whereof those ê‘sons to whome the reuersion or remainder thereof hath belonged haue after the dethes of the same particular tenantes bene driuen to their actions for the recontinuance and obteyning of the said landes and tenementes so recouered to their greate importable charges and expenses and somtime haue bene clerely disherited of yâ— same it is therfore inacted that all suche recoueries herafter to be had or prosecuted by agrement of the parties or by couin against any suche particular tenant of any landes or hereditamentes wherof the same particular tenant is or herafter shal be seased as tenaÌ„t by the curtasie of England tenant in taile after possibilitie of issue extincte or otherwise for terme of lyfe shal from hensforth as against such persons to whoÌ„ the reuersioÌ„ or remainder therof shal then appertayn ageinst their heires and successours be clerely voyde and of none effecte Prouided alway that this act shal not extend to any person that shal hereafter by good title recouer any hereditamentes without frawde or couin against any such partituclar tenant by reasone of any former right or title nor to auoyd any recouery hereafter to be had against any such particular tenaunt by thassent and agrement of those in the reuersion or remaynder so that the same assent and agrement do appere of record in the kinges court ⧠Of discontinuance IT is called a discontinuaÌ„ce by the lawes of Englande when he that hath the possession of landes or tenementes for the time present yet not hauing the fe simple in himselfe nor in his own right only maketh an altâ—enation of the same laÌ„des to an other person by reasoÌ„ wherof he that shuld haue them after him and which then hath right vnto them can not entre into them but is driuen to his remedy by wey of action in such wise that the sayd landes be not vtterly shifted and gone troÌ„ such person of persons as haue right vnto them but be aloÌ„ly discontinued for a time til the person which after the death of such discontinuer hath right vnto them do recoÌ„tinew bring them home againe not by entrye but by sute and wey of action As for exemple if tenaÌ„t in taile of certaine landes doth infeffe an other in the same in se simple or fe taile and hath issue and â—peth his issue can not entre into the landes though he hath title and right vnto them but is put to his action whiche is called â— formedone in the descendre And if such tenaÌ„t in taile which maketh such a feoffement hath no issue at tyme of his death it is yet neuerthelesse a discontinuance to him which is either in the reuersion or in the remaindre so that neither th one nor thother can entre but they be driuen to their action he in the reuersion to his formedone in the reuertir and he in the remaindre to his formdone in the remaindre In like maner if a bishop doth aliene landes which be parcel of his bishoprich and dyeth this is a discontinuance to his successour forasmoch as he can not entre but is driuen to his writ of entre sine asseÌ„su capituli Semblably if a Deane be sole seised of laÌ„des as in yâ— right of his deanrye and maketh suche an alienation this is a discontinuance to his successour Also if the maistre of an hospital alieneth certaine laÌ„dâ—s of his hospital this is a discontinuaÌ„ce and his successour can not entre but is put to his writte de Ãngressu sÃne assensu coÌ„fratrum sororum But if a persoÌ„ or vicare of a church will alien any landes or tenementes whiche be parcell of his glebe landes to an other in fe simple or in fe taile and dyeth or resigneth his benefice this is no discontinuance to his successour but that he may very wel entre not wtstandinge suche alienation made by his predecessour The cause of this difference Master Litletonne doth largely declare in his boke of Tenures which to auoid ê“lixitie I here omitte and remitte you to him Only of this one thing I wil admonishe you that in the .xxxij. yeare of this kingê most noble reigne it is inacted that no fine feffement or other acte to be made or suffred by the husband only of any landes or tenemeÌ„tê being the inheritaÌ„ce or frehold of his wife duringe the couerture betwene them shal be any discoÌ„tinuaÌ„ce therof or be preiudicial or hurtful to the said wife or to her heires or to such as shal haue right title or interest to the same by the death of such wife but that the same wife and her heires and such other to whom such right shall apperteine after her decesse shal may thaÌ„ lawfully entre into all such landes tenemeÌ„tes according to their rightes and titles therin ⧠That wrongful disseisin is no discent in the law inacted aÌ„ of wrongful disseisin 32. Hen. 8. WHere diuers persons afore this time haue by strength and wtout title entered into laÌ„des tenemeÌ„tes and other hereditamentes and wroÌ„gfully disseased dispossessed yâ— rightful owners and possessours therof so being seased by disseisin haue therof died seased by reason of whiche dieng sesed the parties yâ— were so disseised and dispossessed or such other persons as before suche discent myght haue laufully entred into yâ— said laÌ„des and tenementes be therby clerely excluded of their entre into yâ— said laÌ„des and tenementes put to their action for their remedy and recouery therin it is inacted that the diâ—g seased herafter of any such disseisour of any laÌ„des tenemeÌ„tes or other hereditameÌ„ts hauing no right or title therin shall not be taken or demed any such discent in the lawe for to take away the entrie of any suche persons or their heires whiche at the tyme of the same discent had good and lawful title of entre into the saide landes
feffement be made of landes in fee simple vpon condicioÌ„ that the feffee shal not alien or put awey this same to none other this condicion I saye is voyde bycause the feffee is restrayned of hys hole poure that the lawe giueth in suche case vnto hym and whyche power and libertie is in maner included in euery feffement Yet I maye abbrydge hym of parte of his powre as to condicion wyth hym that he shal not aliene the landê to suche a personne or suche But of gyftes in tayle other wyse it is for yf I gyue landes to a man and to the heyres of his body lawfully begotteÌ„ vpon condicioÌ„ that he nor his heires shall aliene the landes to none other persone this condicion is good and effectuall in the lawe and if he or his heyres contrary to the condicion do aliene them than the gyuer or hys heyres maye very well entre and reteyne the laÌ„des for euer bicause this condicion doth stande wyth the forenamed statute of WestmÌ„ seconde whyche prohibiteth suche alienacioÌ„s to be made Hitherunto I haue spoken of condicions in dede now will I shew what be condicions in lawe that be annexed to any estates Knowe ye therfore that if the office of a parker or stewarde or suche lyke office be graunted to a man for terme of his lyfe though there be no coÌ„dicion at al meÌ„cioned in the grauÌ„t yet the lawe speaketh a condicion in thys case whiche is that yf the partye to whome suche offyce is gyuen shall not execute all poyntes apperteynynge vnto hys office accordingly it shal be lawfull for the grauÌ„tour to entre and dyscharge hym of hys offyce and thys condicion is called a condicion in lawe Of lyuery of season and of atturnement IN al feffemeÌ„tes giftes in tayle leeses for terme of lyfe or for terme of an others lyfe of landes or tenementes there can be no alteration or transmutacion of possession by the aunciente lawes of thys realme on lesse there be a certayne cerimonye adhibited and solempnised in the presence and syght of neyghbours or others whych ceremony is called liuerye of seasone And ye shal vnderstand that this ceremonye of lyuerye of seasone is done whan the feffoure donour lessoure or theyr deputy come wyth the neighboures solemply to the landes or tenementes and there put the feffee donee or lessee in possession of the said landes or tenementes by deliuering vnto him a clod of earth or the ring of the dore orsome other thyng in the name of seasone for this self cause this ceremonye of lawe is called lyuerye of seasone that is to witt a tradicion or gyuynge of seasone But this ceremony is not required in lessees for terme of yeares or in leeses at wyll in as moche as the lessoure in suche case remaineth styll seased and the lessee hath onelye the possession wythout the seasine and 〈◊〉 the termes of the lawe be that suche a man is possessed where as in feffementes giftes in taile and leeses for lyfe he is called seased Wherfore yf a feffemente or lees for life be made of laÌ„des or tenemeÌ„ts and before that the liuery of seasine be made the feffoure dyeth the heyr of the feffoure shall haue the landes per summum ius that is to lay by the rigoure of the lawe notwithstandyng that the feffee hath payde to the feffour the price of the land although the feffee be in possession But otherwise it is of a lese for terme of yeres I lyke ceremonye is vsed whan rente charges whan rente seruyces and suche other thynges as passe by wey of graunt be graunted for it is no full and perfyte graunt tyll it be consygnate as it were wyth the ceremonye of atturnement This atturnemente is nothynge elles but whan the tenaunte of the land of which the reuersion is grauÌ„ted or out of whyche a rente is grauÌ„ted do make some euident signification and token that he accepteth the persone to whom the grauÌ„t is made to be in the same respecte vnto hym that the grauntoure was As for an exemple if the tenaunte of the lande after he haue herde of the graunt coÌ„meth to the grauntee that is to wyt to the persone to whom the graunte was made and saye in thys wyse or in lyke effecte I agree me to the graunte made vnto you by suche a man or I am well a payde and contented of the graunt that suche a man hath made vnto you But the moste vsuall and frequent forme of atturnement is to saye Syr I atturne vnto you by force of the said graunt or I become your tenaunt or to delyuer vnto the grauntee a penye or a halfe penye by waye of atturnemente Yf a man maketh fyrst one grauÌ„t to one persone and after an other to ane other persone that graunte shal stande to whyche the tenaunte wyll atturne althoughe it be the latter And ye shal note that if a man be seased of a Manoure whyche is percell in demene and percell in seruice and doth aliene the same Manoure to an other onlesse the tenauntes of the Manoure do atturne the seruices shal not passe only tenauntes at wyll excepted for it nedethe not to cause them to atturne Note furthermore that there is a greate difference bytwene giuynge a penye in name of seasin and gyuyng it by waye of atturnement for whan it is gyuen of the tenaunt to yâ— grauÌ„tee in name of seasin it dothe not only implye an atturnement but also it gyueth him suche a seasin that if the rente afterwarde be behinde and not payd he may now vppon yâ— seasin of the penye after a lawfull distres and after rescus made brynge an assyce of nouel disseasin where as if it were gyuen only by waye of atturnement he coulde not brynge the assyse but hys wryt of rescus onely Also ye shall vnderstande that wher landes be deuisable by testamente by the custome of any auncyent boroughe or cyty yf there the reuersion of any landes be by testament bequethed to a man in fee and testatour which we call the dyuysour dyeth yâ— deuisee that is to wytte he to whom the deuise was made hath forthw t yâ— reuersion in hym wythout further ceremonye of atturnement Lykewyse it is if a man by testament dothe bequeth a rent charge that he is seased of or a reÌ„t seruice there nedethe none atturnement at all Yf two ioyntenauntes be of land and the lorde graunteth the seruyces to an other if one of yâ— ioynteâ—auÌ„â—eÌ„s atturneth it is ynoughe Finally if a lease be made for terme of lyfe the remayndre to an other in tayle the remayndre ouer to the ryght heyres of the tenauÌ„t for terme of lyfe if in this case the tenauÌ„t for terme of lyfe wyll graunte hys remayndre in fee to an other by hys dede thys remayndre passeth forthwyth without any atturnement for if any atturnement were requisite it shulde be made of the tenauÌ„t for terme of life whyche in this case is the grauntour hym selfe And in vayne
though there be no clause of distresse in the dede of feffemente or lease But here ye wyl aske me when in the case before remembred a man at this daye gyuethe cleane aweye the lande or tenement from himselfe in fee simple so that there is no maner of reuersion of the same remaynyng in him at all and yet neuertheles reserueth vnto hym by hys dede a certaine rent what maner rent this shal be called I answer if there be in the dede indented any clause of distresse put that is that if the rent be behind vnpayed it shal be lawful for the feffoure to entre and to distreyne it is called a rente charge forasmoche as the lande is charged therwyth but howe of common right no but only by vertue and force of the wrytynge But on the other syde if there be no suche clause of distresse put in the indenture thaÌ„ the rent so reserued shal be called a rent secke Likewyse if a man that is seised of certaine landes wyll graunte eyther by indeÌ„ture or by his dede polle that is to saye single and not indented a yearly rent out of the same landes to an other whether it be in fe simple fe tayle for terme of lyfe for yeares or at wyll wyth clause of distresse then this rent is called a rente charge and he to whom suche rente is graunted may for defaulte of payment therof entre and distreine But contrarely if the graunte be made wythout any such clause of distresse it is called reÌ„t secke that is to say a dry rent bicause he can not come to it in case it be denied by way of distresse in so moch that if he were neuer seysed of it he is by the course of the common lawe without remedie Otherwise it is of a rent charge for here he to whoÌ„ the graunt is made whaÌ„ the rent is behinde may chose whether he wyll sue a wrytte of annuitie againste the grauntoure or distreyne for the rent behynde and reteine the distresse tyll tyme he be paid accordingly But he caÌ„ not haue both remedies to gither but muste take him to the one for if he ones recouer by a wrytte of annuitie then is the lande discharged And if he sewe not his writte of annuitie but distrayne for the arreragies and the tenauâ—te seweth a â—epleuin wherupon yâ— other auoweth the taking of the distresse in court of recorde then is the land charged and the person of the grauntour discharged of the action of annuitie Ye shal also vnderstand that if a maÌ„ wyll that an other shall haue a rent charge coÌ„myng out of his lande and yet wyll not that his person shuld be by any meanes charged by wrytte of aÌ„nuitie he may thaÌ„ haue such clause in the ende of his dede Prouiso ê™ praesens scriptum nec quicquam in eo conteÌ„tum ullo pacto se extendat ad oneraÌ„dam personam meam per breue seu actionem de annuitate sed tantuÌ„ modo ualeat ad onerandum terras fuÌ„dos tenementa mea de annuo redditu praedicto If thys or suche lyke clause be added then the land is charged and the person of the grauntour is discharged Also if a man wyll make a dede of graunte in this wise that if Iohn at Style be not yearly payd at the feast of Christms for terme of his life .xx. shillinges sterlyng that then it shall be lawfull for the sayd IhoÌ„ at Style to distreyne for it in the Manoure of Dale this is a good rent charge bycause the Manoure is charged with the rent by wey of distresse and yet neuerthelesse in this case the persone of him that made such dede is discharged of any action of annuitie forasmoch as he graunted not by his dede any aÌ„nuitie to the sayd Ihon at Style but onely grauÌ„ted that he might distreyne for suche yearly rent Furthermore ye shall note that if a man hath a rent charge to him and to his heires coÌ„myng out of certeyne landes and doth purchase any parcel of this land to him and to his heires in thys case the hole rente charge is qwenched and gone and the annuite also the cause is this the a rent charge can not be in suche case apporcioned Otherwise it is of a rent service for if one whiche hath a rent seruice as for exemple xx d. by yeare doth purchase parcel of the lande out of which this yearly rent of xx d. is commyng this shal not extinguish ne drowne yâ— hole rent but for that parcell only For reÌ„t seruice in suche case may very wel be apporcionate and rated according to the value of the lande Yet there be some sortes of rentes seruices which in no wyse can be apporcioned As where a tenaunt holdeth his lande of his lorde by the seruice to reÌ„dre to his lorde yearly at suche a feast an horse a ring of gold a redde rose a gylouer 〈◊〉 suche lyke if in this case the lorde doth purchase parcell of yâ— land thus of him holden this seruice is gone bicause such seruice can not be seuered ne apporcioned Also escuage is a seruice that may very well be apporcioned accordinge to the afferaunce and rate of the lande But where any lande is holden by homage and fealtie if the lorde purchaseth parcel of the land yet he shal haue hys homage and fealtie styll of his tenaunte Ye shall marke also that if a man maketh a lease of landes to an other for terme of lyfe reseruing to him certaine rent if in this case he grauÌ„teth the rent to Iohn at Style sauing to himselfe the reuersion of the said laÌ„d thys rente is but rente secke bycause Iohn at Style yâ— hath the rent hath nothing in the reuersion of the land But if he graunteth the reuersion of the lande to Iohn at Noke for terme of lyfe and the tenaunt atturneth accordingly then hath Iohn at Noke the rente as rente seruice bycause he hath yâ— reuersion for terme of his life Lykewise it is if a man giueth laÌ„des or tenementes in taile reseruing to him to his heires certaine rente or maketh a lease of the land for terme of life reseruinge certayne rent if he graunteth the reuersion to an other and the tenaunt atturneth accordingly the hole rent and seruice shal passe by this worde reuersion bicause the rent and seruice in suche case be incident to the reuersion and do passe by the graunt of the reuersion But if he had graunted the rent only the reuersion had not passed ¶ What remedy a man hath to recouer his rent when it is behynde I Shewed you before that for a reÌ„t seruice if it be behynde ye may distrayne in the grounde euen of common ryght thoughe there be no suche clause of distresse meÌ„cioned in yâ— dede of feoffement grauÌ„t or lease Also for a rente charge ye maye distreyne or bryng your wryt of annuitie at your choise and election as before is declared But of a rent secke if ye were neuer seised of
it nor of any parcel therof ye be without remedy by course of the comoÌ„ law for ye can not distreyne for it nor yet bryng your wrytte of an nuitie but if ye were ones seised of it or of parcel therof and it is estsones behinde then youre remedie shall be this Ye must go either by your selfe or by your deputye to the lande or tenement out of which the rent is commyng and there demaunde the arreragies of the rent whiche if the tenaÌ„t denye to paye this denyal is a disseisin of the rent Also if the tenaunt be not then ready to pay it this counter uayleth a denyal which is a disseisin Moreouer if neither the tenaunt nor none other man be remayning vpon the grounde to pay the rent when ye demaund the arreragies this also is a denyall in the law and is in very dede a disseisin And of these disseisinê ye may haue an assise of nouell disseisin against the tenaunt and shal recouer seisin of the rent aud the arreragies and youre damagies and costes of your wrytte and of your plee And if after suche recouery and execution had the rente be agayne at an other tyme denyed you then ye may haue a redisseisin and shal recouer your double dammagies c. It shal be therfore good wisdome for a man when a rent is grauÌ„ted by any persone vnto him to take of the tenant of the land a peny or an halfepeny in name of seisin of the rent and then if at the next day of paiment the rent be denyed him he may haue an Assise of nouel disseisin And ye shall note yâ— there be thre causes of disseisin of rent seruice that is to wete rescouse repleuin incloser Rescouse is when the lorde vpon the lande holden of him distreyneth for his rent behynde and the distresse is rescued from him or if yâ— lord come vpon the land and wyl distreine and the tenant or any other man for hym wyl not suffre him this is called Rescouse Repleuin is when the lorde hath distreyned repleuin is made of the distresse by wryt or by playnt Encloser is when landes or tenementes be so inclosed that the lord can not come within the landes or tenementes for to distreyne And the chefe cause why suche thinges so made be disseisins to the lorde is for asmoch as the lord is by this wey disturbed of the mean and remedy wherby he ought to com and haue his rent that is to wete by distresse And there be iiiij causes of disseisin of a rent charge the is to wete rescous repleuin encloser and denyer For denyer or denyal is aswell a disseisine of a rente charge as it is of a rent secke Finally ye shal vnderstande that there be two causes of disseisin of a rent secke that is denyall enâ—loset And is semeth that there is yet an other cause of disseisin of all the three rentes aforesaid that is to wete this when the lorde commeth to the lande holden of him or when he that hath a rent charge or a rent seck commeth to the lande to distreyne for the rente behynd and the tenant hearing this encountreth him and forstalleth him the weye wyth force and armes and manaceth him in such sort as he dare not come to yâ— ground for to distreine for his rent behynd for feare of death or of mutilatioÌ„ of his membres this is a disseisin bicause the partie is disturbed of his mean lawful remedy wherby he ought to come to his rent Finally ye shall obserue marke that by an act of parliament made in the xxxij yeare of oure soueraygne lorde king Henry the eight it is lawful for the executours and administratoures of tenantes in fe simple tenantes in fee tayle and tenantes for terme of lyfe of rent seruices reÌ„t charges rent seckes and of fee fermes for the arreragies of suche reÌ„tes as were due vnto theyr testatoures in their liues either to distrayne for the same or at their election to brynge an action of dette sauyng in such lordshipes in Wales or in the marches therof where the tenauntes haue vsed tyme out of mynde to pay vnto euery lord at his fyrst entry into the lordshyp any sumine of money for the redemption of all maner duties and penalties incurred at any tune before their lordes entry Also by force of the sayde arte the husbande whiche was seysed in the right of hys wife may after the death of his wyfe either distrayne or bryng an action of dette for the arrerages of such rentes as were due vnpayd in her lyfe Likewise it is of him that hath a rent for terme of an other mans lyfe if he for terme of whose lyfe he hath the rent dyeth yet by vertue of yâ— sayd acte he or his executoures and administratoures may either distrayne or bryng an action of debte for the arreragies due before the deathe of hym for terme of whose lyfe he had yâ— rent How Auowries ought to be made of rentes and seruices inacted aÌ„ 21. Hen. 8. WHere any landes be holden of any person by rentes customê or seruices if the lord distrayne vpon the same landes for any such rentes customes and seruices and repleuin therof be sued the lorde maye auowe or his baylyffe or seruante may make conisance or iustifie the taking vpon the same laÌ„des as within his fee and scignorye aledging in the sayd auowry conysance or iustification the same landes to be holden of hym wythout namyng any person certayne to be tenante of the same and wythout making any auowrye iustification or conisaunce vpon any persone certayne And lykewyse vpon euery wrytte sued of seconde delyuerance And they that make any such auowrye iustification or conisaunce if yâ— same avowrye conysaunce or iustificatioÌ„ be fouÌ„d for them or the playntyffe be nonâ—uâ—â— or otherwise barred then they shal recouer their damagies and costes Also the said playntyffes defendauntê shal haue lyke plees lyke aide prayers plees of disclaymer onely except as they myghte haue had before the makyng of this acte Also suche persons as by the cominen lawe maye ioyne to the playntyffe or defendant in the said wryttes of replegiare or seconde delyueraunce as well without processe as by processe shall from henseforth also in this case ioyne vnto them as wel wythout processe as by processe and haue lyke plees and lyke auauntages in all thinges disclaymer onely excepte as they myght haue by the comen law before thys acte ¶ An acte for assignees or grauntees of reuersions to take auantage of the condicions to be performed by the fermours made aÌ„ 32. Hen. 8. IT is inacted that aswel al persons whych haue or shal haue any gifte or graunt of the king by his letters patentes of any lordshyps landes tenementes rentes personages tythes portions or other hereditamentes or of any reuersion of the same whiche did belong to any monastery or other ecclesiasticall house dissolued or by any other meanes come to the kynges
vnder the value of x. marke Also no Mortuarie shal be taken but onely where Mortuaries haue bene vsed to be payde and there after the forme hereafter mencioned Nor in no mo places but one that is to were there where his most abiding is and there but one Nor no persone shal take for a Mortuarie of any person being at his death of the value of x. markes aboue his dettes paid and vnder xxxli aboue .iij s iiij d And of the value of xxx li. and vnder lx lj not aboue vi s viii d And of the value of lx li. or aboue to any summe what so euer it be not aboue x. s. Prouided that no Mortuarie shal be asked nor payd for any woman couert baron or child or any person not keping house or for any wayfaring man but the mortuaries of such wayfaring men be an sweâ—able in that place where they had their most dwelling at yâ— time of their death Prouided that any such spiritual persoÌ„ may take any thing which shal be disposed or bequethed to him or to the high aulter of the church Also no thing shal be taken for Mortuaries in wales nor the marches of yâ— same nor in Calys or Berwyke or the marches of the same but only in such places of yâ— same where mortuaries haue bene accustomed to be paid and there but onely after the forme aboue specified Prouided that the byshops of Bangour Landaffe saint Dauies saint Asse the archdeken of Chester may take such mortuaries of yâ— prestê°â— within their diosices iurisdictions as heretofore haue bene accustomed Prouided also that in such places where mortuaries haue bene accustomed to be taken of lesse value none shal be compelled to paye any other mortuarie or more for any mortuarie then hath bene accustomed nor no mortuarie there shal be demaunded of any person exempt by this acte vpon payne afore lymyted ¶ An acte for the assuraunce of fermoures made aÌ„ 32. Hen. 8. AL leases heereafter to be made of any manours laÌ„des tenementes or other hereditamentes by wryting inâ—cted vnder seale for terme of yeres or for terme of life by any persons being of ful age of one and twenty yers hauyng any state of inheritaÌ„ce either in 〈◊〉 simple or in fee tayl in their own right or in the right of their churches or wyâ—es or ioyntly with their wiues of any estate of inheritaÌ„ce made before yâ— câ—uerture or after shal be good effectual in the law agaynst yâ— lessours their wyues hâ—yres and successours according to such estate as is comprised in euery such indenâ—iâ—ee of lease Prouided that this acte shal not extende to any leases to be made of any laÌ„des tenemeÌ„tes or hereditameÌ„tes being in the handes of any fermoâ—t by vertue of any olde lease onles the same olde lease be expired futrendâ—ed or ended within one yeare nexte after the making of the sayd new lease nor yet shal extende to any graunt to be made of any reuertion of any landes tenementes or hereditamentes nor to any lease of any such landes tenementes or hereditamentes as haue not most commonly bene letten to ferme or occupied by the fermours therof by the space of .xx. years nexte before such lease therof made nor to any lese to be made without impeachment of waste nor to any lease to be made aboue the numbre of xxi yeares or thre liues at the most from the day of making therof And that vpon euery such lease there be reserued yearly during the same lease dewe payable to the lessours their heires and successours to whom the same landes shuld haue come after the dethes of the lessours if no such lease had bene therof made and to whom the reuersion therof shal perteine according to their estates interestes so moch yerly rent or more as hath bene most accustomably yelden for the same within .xx. yeres next before such leases therof made that euery person to whome the reuersion therof shal perteine after the deathes of such lessours or their heires shal haue such lyke remedy and auantage to al ententes and purposes against the fermours therof their executours and assignes as the same lessour shuld or myght haue had Prouided also that yâ— wyfe be made partie to euery such lease as shall be made by her husbande of any landes being the inheritance of the wife and that euery such lease be made by indenture in the name of the husbande his wife and she to seale yâ— to same And that the rent be reserued to the husbande and to the wife and to the heires of yâ— wife accordiÌ„g to her estatâ— of inheritance in the same And that the husbande shall in no wise aliene discharge grauÌ„t or giue awey yâ— same reÌ„t reserued nor any parte therof longer then during the couerture without it be by fyne leuyed by the sayde husband and wyfe Prouided furthermore that this acte extende not to giue any lybertie or power to any persons to take any mo fermes leases or takings of any manours laÌ„des tenementes or other hereditamentes than they myghte lawfully haue done before yâ— making of this acte nor yet extende to giue any libertie or power to any person or vicar of any church or vicarage for to make any lease or graunt of any their messuages landes tenementes tithes profytes or hereditameÌ„tes belonging to their churches or vicaragies otherwise than they myght haue done before the making of this acte ⧠An acte that fermoures shall take auantage of condicions and couenantes against grauÌ„tees of reuersions aÌ„ 32. Hen 8. AL fermours and grauntees of lordships landes rentes personages tithes portioÌ„s or any other hereditamentes for terme of yeares life or liues their executours administratours and assignes shal haue like action and remedy against all persons and bodyes polytike their heires successours and assignes whiche haue or shall haue any gift or graunte of the king or of any other person of the reuersion of the same lordships landes tenementes and other hereditameÌ„tes so letten or any parcel therof for any condicion couenant or agrement conteyned in the indentures of their lease as they might haue had against their sayd lessours and grauntours their heires or successours al benefytes aduantagies of recouries in value by reason of any warranty in dede or in law by voucher or otherwise onely excepted Prouided that this acte shall not extende to hinder or charge any person for the breche of any couenant or condition comprised in any such writing as is aforesayd but for such couenantes and condicions as shall be broken or not perfourmed after the fyrst day of Septembre in the .xxxii. yeare of this king and not before ⧠Of falsifieng of recoueries by fermers inacted aÌ„ 21. Hen. 8. All fermers or lessees for terme of yeares may herafter falsefie for their terme onely recouerees had by fayned titles aswell as a tenaunt of frehold might at the comen law And the same fermers or termers their executours and assignes shal enioy their
partie greued may haue his attaint vpon euery such verdit so giuen and the plaintiffe in the same attaint vpon iudgement for him giuen shal haue his recouery execution and other aduaÌ„tage in like maner as heretofore hath bene vsed ⧠Of fines FInes haue theire name bycause they make a final ende and determination of all suites strifes and debates betwene men For the due leuieng wherof it was inacted in the .iiii. yere of King Henry the seuenth that they muste be solemnly before yâ— iustices of the common place red and proclamed the same terme three termes next folowing yâ— ingrosmeÌ„t at whiche tymes al yâ— plees must cease And such fines shal be a sufficient barre and discharge against al persons sauing against women that be couert baron if such women be not priuie to the same fine or such as be within age in prisoÌ„ out of the realme or out of their right myndes But these fines shall not coÌ„clude ne barre all straungers whiche haue right to entre or to haue any action if they come within .v. yeares astre suche proclamations made or in case the cause of action falleth vnto them after the fyne so duely leuied if they come and commence their action and suite within .v. yeares nexte after such cause of action to them accrued And they may sue against the takers of the profittes But if they that haue right to the same be within age in prison couert baron out of the realme or not in their right memory then their title or entrie shal be saued vnto them tyl they be of ful age out of 〈◊〉 discouered and sole within the realâ—e or of â—ight mynde and then within fyue yeres after their action or entrie must be sued or made with effecte Also ye shal vnderstand that by the said stature of Henry the .vii. it shal be a good plee for al straungers to saye that they that were parties to the fine nor none other to theire vse had any thing in the tenementes or landes at the tyme of the leuying of the fine Furthermore ye shal note that in the .xxxii. yeare of this king for thaduoyding of certaine doubtes and ambiguities it was inacted that al fines aswel hertofore leuied as hereafter to be leuied according to the sayd statute of Henry the .vii. by any person of the ful age of .xxi. yeres of any landes or other hereditamentes beinge before yâ— fine leuied in any wise intayled vnto him or to any of his ancestors in possession reuersion remaindre or in vse shal be immediatly after the same fine leuied ingrossed and proclamations made a sufficient barre and discharge for euer aswel against him his heirs clayming the same onely by force of any such entaile as against al other to their vse so that the same fines be not leuied by any woman after the death of her husband contrary to the statute made the .xi. yeare of Henry the seueÌ„th of landes and tenementes of th inheritance or purchase of her husbande or of any his ancestours giuen to her in dower for terme of lyfe or in tayle in vse or in possession Excepted also al fines leuied or to be leuied of any such landes or other hereditamentes as the owners therof by any special acte of parliament made sith the said fourth yeare of Henry the .vij. be restreined from making any alyenations discontinuancies or other alterations of the same Also of such landes as be now in sute and variaÌ„ce in any of the kinges courtes or wherof any euidences be now in demande in the Chancery or which be already couered Excepted also fines leuied or to be leuied by any person of landes or tenementes granted to him or to his ancestours in taile either by the kingê letters patentes or by vertue of any acte of parliament wherof the reuersion is in the king ⧠Of testamentes or last willes TEstamentuÌ„ in latyn is as moche to say as mentis testatio that is a declaratioÌ„ or witnessinge of a mans mynd And there be two sortes of testamentes The one is called testamentum scriptum that is a written testament or a last wil by writing and the other is called testamentum nuncupatuÌ„ a testament nuncupatiue which is when a man wyl expresse by mouth his last wil and testament wtout wryting onely by calling before him certayn of his neighbours in whose presence he doth signifie by wordes his last minde and wil. And this for most parte men vse to do when for feare of sodennes of deth they dare not abyde the writing of their wil. And this wil onlesse it be in certaine cases is as strong and as sure as is a testament or laste will put in writing and sealed with the seale of the testatour Also ye shal vnderstaÌ„d that though a testament by writinge be not sealed with the seale of the testatoure yet is the testament good effectual in the lawe And ye shal also marke that where a man maketh ones his testament wil and afterwarde maketh an other wil by wordes if his laste will be proued before the Ordinary and by him put in wryting and insealed with his seale such last wyl shal auoid the first wil onles it be in special cases and so alweyes the latter wil and testament shal auoyd the former Finally ye shal obserue that by an acte of Parliament made in the .xxi. yeare of our soueraigne lorde Kinge Henry theight it was ordeyned that where part of therecutours named in the testament of their testator wherin any landes or tenementes be willed to be solde by them refuseth to take vpon them the administration the residue do take the charge and administration therof vpon them in thys case al bargaines and sales of the said landes made only by those executors that toke the administratioÌ„ of yâ— testament vpon them shal be as good and as effectual in the law as if as the residue of yâ— same executors so refusing had ioyned with them or him if it be but one person in the makinge of the bargaine and sole ⧠An acte for probate of testamentes made aÌ„ xxi HeÌ„ viii NOthing shal be takeÌ„ by any person that hath auctoritie to take probation insinuation or approbation of any testament for the probation of the same where the goodes of the testatour do not amounte aboue the value of C. shillinges Excepte to the scribe for writing therof .vi d And for the commission of ministration of the goodes of any dieng intestate not being likewise aboue C. shilliÌ„ges vi d Also none hauing power to take probation of testamentes shall refuse to approue such testamentes being lawfully offred vnto them in writinge with wax therto affixed redy to be sealed so that the same be lawfully proued before yâ— same ordinarie to be trew And when the goodes of the testatour do amount aboue the value of C. shillinges not excede the summe of xl li none shal take for the probation regestring sealing and writinge of any such testament
of his children and payment of his dettes or otherwise at his pleasure Sauing to the King aswel the wardship and primer season of as moch as shal amouÌ„t to the clere yerely value of the thirde parte therof wtout diminution dower fraude couein charge or abridgement therof as also al fines for alienations of al such landes and tenementes so holden of him by knightes seruice in chief wherof there shal be any alteration of frehold or of inheritance made by wyl or otherwise And euery person hauing laÌ„des or truementes of estate of inheritaunce holden of the king in chief by knightê seruice other landes holden of him or of any other by knightes seruice or otherwise shall from the saide .xx. day of Iuly haue poure to giue or assigne by his testament or otherwise as is aforesayd two partes of the same in thre partes to be diuided or elles as moch therof as shal extende to yâ— yearly value of two partes of the same in three partes to be diuided in certainty Sauing to the king yâ— wardship primer season of as moch thereof as shall amounte to the yerely value of the third part wtout diminution dower couein charge or subtractioÌ„ of the same or of the ful profittes therof Sauing also al fines for alienations as is abouesayde Item euery person holding landê or other hereditamentes onely of any other than of yâ— King by knightes seruice and other landes and tenemeÌ„tes in socage or of the nature of socage tenure maye gyue dispose or assure by testament or otherwise as is aforesaid two partes therof holden by knightes seruice or as moch as shal amount to the ful yerely value of two partes in maner aboue declared And also al the landes and tenementes holden by socage or of the nature of socage tenure at his pleasure Sauing to the lorde of the landes and tenementes holden by knightes seruice for his wardship as moch therof as shal amount to the clere yearly value of the thirde parte wtout any diminutioÌ„ dower fraud c And euery person holdinge onely of the King by knightes seruice but not in chief or holdiÌ„g of yâ— king by knightes seruice and not in chiefe and also other hereditamentes of others by knightes seruice and holding also other hereditamentes of any other person in socage or of yâ— nature of socage tenure may giue deuise and assure by his last will or otherwise two partes of the hereditamentes holden of the king by knightes seruice two partê of the hereditamentes holden of any other persoÌ„ by knightes seruice or as moch of either of them as shal amouÌ„t to the ful yearly value of two partes and also al his landes and tenemeÌ„tes so holdeÌ„ in socage or of the nature of socage tenure Sauing as wel to the king the wardship of as moch as shall extende to the clere yearely value of the thirde parte of the same so holden of him by knightes seruice without diminution c. As also to the lordes of whom any of the said landes or other hereditameÌ„tes bene holden by knightes seruice for wardshyp as moche of the same so holdeÌ„ of them by that seruice as shal amount to the clere yerly value of the thirde parte in maner aboue declared Prouided that if that thirde parte whiche in any of the cases abouesayd shal come to the king do not amount to the clere yearly value of the ful .iii part of all the sayde hereditamentes whereof the king shal be intitled to haue the custody or primer season than the kinge maye take into his handes as moch of thother two partes of the sayd hereditameÌ„tes as with that of the same hereditameÌ„tes remayning in his haÌ„des shal make vp the clere yearly value of the thirde parte of the said laÌ„des and tenementes so to be had to him in title of wardship and primer seasoÌ„ And like benefyte to be giuen to euerie lorde of whom any such hereditamentes shall be holden by knightes seruice concerniÌ„g only his third part for title of wardship Also al persons shal sue their lyueries for possessions reuersions or remaynders and also pay reliefes and heriettes like as they shuld haue done before yâ— making herof And fines for alienatioÌ„s shal be payd in the Chancery vpon writtes of entre in the post to be obteined there after the sayd .xx. day of Iuly for common recoueries to be suffered of any landes holden of the king in chiefe in lyke maner as is vsed vppon alienations of landes so holden in chief by fiâ—e or feoffement Prouided that in such cases where fines for alienations shall be paid in the Chancery for writtes of entre in the poste as is aforesayde none other fine shal be payd in the same court for any such writtes Item where two or more persons holde of the king by knightes seruice ioyntly to them to the heires of one of them and he that hath the inheritaunce therof dyeth his heire beinge wtin age the king shal haue yâ— warde and mariage of the body of such heire the life of the freholder or freholders of the landes so holden by knightes seruice notwithstanding Sauing to al women such right title of dower as they owe to haue of any landes or tenementes by the lawes of this realme to be assigned vnto them out of yâ— two partes of the said landes or tenementes seuered froÌ„ the thirde parte as is abouesaide and not otherwise And sauing also to the king the reuersions of al such tenaÌ„tes in ioyntenure and dower immediatly after the death of such tenantes if they shal happen to die during yâ— none age of the kinges wardes ⧠Of mariagies inacted aÌ„ 32. Hen. 8. IT is inacted that from the first day of Iuly in the yeare of our Lorde a M.D. and XL. al mariages within this churche of Englande contracted betwene lawful persoÌ„s as by this act we declare al persoÌ„s to be lauful that be not prohibited by gods law to mary such mariages being contract and solemnised in the face of the church consummate with bodily knowledge or frute of chyldren or chylde beynge had therin betwene yâ— parties so maryed shal be demed taken to be laufull good indissoluble not withstaÌ„dyng any precontract of matrimony not coÌ„suÌ„mate with bodily knowlege whiche either of yâ— persons so maried or both shal haue made with any other before the time of contracting that mariage which is solemnised and consuÌ„mate or wherof such frute is ensued or may ensue as afore and not withstanding any dispensation prescription law or other thynge graunted or confirmed by acte or otherwise And that no reseruation or prohibition godes lawe excepte shal trouble or impeache any mariage without leuiticall degrees And that no person shal after the said fyrst day of Iuly aforesaid be admitted in any of the spirituall courtes with in this the kinges realme or any hys other landes and dominions to any processe plee or allegation contrary to this acte FINIS EX AEDIBVS RICHARDI TAVERNERI PER RICHARDVM BANKES TYPOGRAPHVM CuÌ„ priuilegio ad imprimendum solum
THE PRINcipal lawes customes and estatutes of England which be at this present day in vre compendiously gathered togither for the weale and benefit of the kinges Maiesties most louing subiectê newely recognised and augmented ⧠LONDINI M.D.XL ⧠Cum priuilegio ad imprimendum solum ¶ The prologe of Richarde Tauerner to the reader DEmosthenes the renowmed Orator defyneth law in this wise The law sayth he is yâ— thing that all men ought to obey for many skylles but in especial bicause law is the inueÌ„tion also the gifte of god the decree of prudeÌ„t men the chastisement of wilful vnwilfull offenses finally the common suretie of a realme wherby it becommeth al men to liue which be conuersant in the same Chrysippus also an excelleÌ„t philosopher thus beginneth his boke of lawes The lawe is kinge of all aswel diuine as humane affaires the presideÌ„t and comptroller of thinges honest and dishonest the prince captaine and ruler of the iuste and iniust it is of ciuile-creatures aswell the commaunder what they ought to do as the forbydder what they ought not to do These auntike sayenges of wise meÌ„ assuredly ought moch to inflame vs to the knowledge of those thinges wtout which we shal be estemed no men but as brute and sauage beastes Let vs not commyt that it be sayd of vs English men as it was ones said of the men of Athens that is that we make very goodly profytable lawes but we vse theÌ„ not Certainly there can be no greater reproche to a common weale then thys One lesson I wolde we lerned of the auncient lawyer Romain named Celsus and that is this The knowledge of lawes is not to beare awey the wordê but the pyth power of them This he wrote bicause there be many which when good holsom lawes be made seke not to se them executed obserued but rather how to defraude them and to haue them vnexecuted whiche kinde of people after the sentence of most ancient lawmakers be no lesse worthy of reprehensioÌ„ thaÌ„ they which do expresly against the law Now they do say they against the law which do the thing that the law forbyddeth And they defraude a law or statute which the wordes of the law saued do circuÌ„uent the meaning and sentence of it Let vs thaÌ„ so read the lawes that we may beare awey the sentence mynd of them and so fulfyl and obserue the lawes that it maye appeare that they were not made in vayn Thus doing we shal please god we shal be obedient subiectes to oure prince and finally we shall seke our own weale and sauetye THE TABLE OF THIS ⧠BOKE ⧠WHat is law iustice and the prudence of lawes fol. i. ¶ A diuision of estates in landes or tenementes fol. i. ¶ Of tenaÌ„t for terme of yeres fol. i. ¶ Tenant at wyl fol. iii. ¶ TenaÌ„t by copy of court rol fo iiii ¶ A diuisioÌ„ of freholdes fol. vii ¶ TenaÌ„t for terme of life fol. viii ¶ TenaÌ„t by the curtesy fol. ix ¶ Of tenant in dower fol. x. ¶ A diuisioÌ„ of inheritaÌ„ces fol. xiiii ¶ Fe simple fol. xv ¶ Fe tayle fol. xx ¶ Tenante after possibilitie of issue extincte fol. xxiii ¶ Of parceners fol. xxiiii ¶ Of condicions fol. xxvi ¶ Of liuery of seisin and of atturnement fol. xxix ¶ Of seruices fol. xxxii ¶ Knightes seruice fol. xxxiii ⧠Of warde mariage and reliefe fol. xxxvii ¶ Seruice of castel garder fol. xl ⧠Of grande sergeantie fol. xli ¶ Of petite sergeantie fol. xliii ☞ Of homage ancestrel fol. xliii ¶ Of socage fol. xlv ¶ Of frank almoyne fol. xlvi ⧠Of burgage fol. xlviii ¶ Of villenage or bonde seruice fol. xlix ⧠Of rentes of the diuers kindes of them fol. liiii ¶ what remedye a man hath to recouer his rent whaÌ„ it is behynd fol. lx ¶ How auowries ought to be made of rentes and seruices fol. xliii ☞ An act for assignes or grantees of reuersions to take auantage of coÌ„dicions vpon fermers fol. xlv ¶ A newe arte how tithes and other profites ecclesiastical shal be recouered fol. xl vi ⧠Of mortuaries fol. xl ix ¶ An newe arte made for th assuraÌ„ce of fermers to holde their fermes against tenaÌ„tes in tayl c. fol. lxxi ⧠That fermers shal take auantage of condicioÌ„s couenaÌ„tes againste grantees of reuersions fol. lxxiii ⧠That fermers or tenaÌ„tê for terme of yeares shal falsefye recoueries for their terme fol. lxxiiij ¶ An acte for thaduoydinge of recoueries by collusion against tenantes for terme of life fol. lxxv ☞ Of discontinuance and of a newe acte coÌ„cerning yâ— same fol. lxxvi ¶ That wrongful disseisin is no discent in the lawe fol. lxxviii ⧠The limitatioÌ„ of prescription newly inacted fol. lxxix ¶ Of times and how they shall conclude the issue in taile fol. lxxxiii ¶ Of testamentes or laste willes fol. lxxxv ⧠An acte for probate of testameÌ„tes fol. lxxxvii ¶ Of disposing of landes by testament or otherwise newly inacted fol. lxxxxi ⧠Of mariagies and towching the degrees of consaÌ„guinitie fol. xcvi ⧠An ende of the table of this present volume What is lawe THe law is the direction ministratioÌ„ of iustice iustice is as Iustinian sayth in hys institutions a constante permanent minde and will to render vnto euery persone his right and duty The prudencye of lawe is a knowledge of diuine and of humane thynges a science and perfyte notice of equite and iniquitie of rightuousnes and vnrightuousnes And forasmoche as a great porcion of the prudencie or science of the lawes of this realme consisteth in the perfyte knowlege of estates that men haue in landes and tenementes we shal first as compendiously and as simply and playnlye as we can treate of estates ⧠A diuision of estates YE shal therfore vndersand that who so euer hath anye estate in landes or tenements either he hath in the same onelye a chatell or a free holde or an inheritaunce Yf he hath an estate in any landes or tenementê but for terme of certayne yeares or at his landlordes wyll so is it called a chatell if for terme of his life or of an other mans lyfe it is called a free holde or franke tenement And if he hath it to hym and to hys heyres in fee simple or in tayle then we saye he hathe an estate of inheritaunce ⧠Tenaunte for terme of yeares TEnaunte for terme of yeres is he to whome landes or tenementes be dimised and lessed for the terme of certayne yeres as is agreed bitwene the landlorde the tenaunt And when the lessee I meane him to whom such lease is made doth entre by force of the sayd lees and is in actuall possession of the same than he is called tenaunt for terme of yeres And here ye shall note that if the lessour that made the lees hath reserued vnto him a yerely rent vpon the sayd lees as it is accustomably vsed to be done yf the
rent be behynd vnpayde it shal be in his free libertie election either to entre and distrayne for the rent or to brynge an action of dette againste him at the law for the arreragies of the same But in this case it is requyred that the lessoure were seased of yâ— landes or tenemeÌ„tes at the time of the makiÌ„g of the lease for otherwise it shall be a good plee in the action of dette for the tenaunt to saye that the lessour had nothinge in the lande or tenement at the time of the lease made excepte the leasâ— were made by dede indeÌ„ted for than the plee shall not lye in the mouthe of the tenaunte or lessee to plede And it is to be knowne that in a lease for terme of yeares by dede or without dede there nede no lyuerye of seasone to be made to the lesse but he may entre when he wyl by vertue of his lease wythout any further ceremonye of lawe Note also that yf a man lesseth landes for terme of yeares thoughe the lessoure chaunceth to dye before the lessee doth entre yet the maye entre well ynoughe Otherwyse it is where as lyuerye of seasone is to be made as in free holdes and in inheritaunces Also yf the tenauÌ„t for yeres doth waste the landlorde maye brynge an action of waste agaynste hym and shall recouer the place wasted and his treble damages Tenaunte at wyll TEnaunte at wyl is he to whom landes or tenementes be lessed to haue holde the same at the wyll of the lessoure And in this case the lessoure may put out his tenaunte at what tyme hym lysteth But yet neuertheles if the tenaunte haue sowed the groundes with corne in thys case if the lessoure wyl entre and put out his tenaunte before haruest the lawe wyll gyue hym free commynge and going to repe and cary his corne awaye wythout any punyshment or dammage to be susteyned for his sodoynge bicause he knew not at what time the lessoure wolde entre But otherwise it is of the tenaunt for certeine yeres for if he soweth yâ— ground and the terme of hys lease be come out and expired before the corne be type in thys case that lessoure or he in the reuersion maye entre and take the corne bycause it was the folye of the tenaunte to sowe the grounde knowynge the ende of his terme In lyke wyse tenaunte at wyll shall haue free commyng and going after the time of the lessoures entree to carye awaye hys housholde stuffe and goodes for a reasonable space ⧠Ye shal also vnderstande that he that maketh a lease at wyll maye reserue an annuell or yearely rente in whiche case if the rent be behynde he may entre very well and distreyn the goodes and catells of the tenaunte or at his election bryng an action of dette agaynst him Also it is to be knowne that tenaunt at wyl of a mese or tenemente is not bound by the order of lawe to susteyne and repaire the houses that be ruynouse as is the tenaunte for yeares and therfore none action of waste lyeth agaynst him Yet if he do wylful waste as if he plucketh down the houses or cuttethe downe the trees it hath bene thought by the sages of the lawe that the lessoure may brynge an action of trespace against hym and recouer hys losses therby susteyned ⧠Tenaunt by copy of courte rolle THere is an other kynde of tenaunt at wyll whiche is called tenaunt by copy of the courte rolles And this is when a man is ceased of a maner wythin whiche it hath bene vsed tyme out of mynde that the tenauntes within the precincte of the said maner haue holden landes and tenementes to them to their heyres in fee simple fee tayle or for terme of life at the wyll of the lorde according to the custom of the maner And such a tenaunte can not aliene or sell his land by his dede for if he do the laÌ„de or tenemente that is so aliened and sold is forfayted into the lordes handes but if he wol alien his copy hold lande to an other he must according to the custome come into the lordes courte and there surrender it vnto the lordes hande to the vse of hym that shall haue the state The formâ— of which surrender is coÌ„monlye vsed to be this Ad haÌ„c curiam uenit A. de A. sursum reddit in eadem curia unum mesuagium c. in manus domini ad usum C. de D. heredum suorâ— uel heredum de corpore c. Et super hoc uenit praedictus C. de D. coepit de domino in eadeÌ„ curia mesuagium praedictum habendum tenendum sibi c. ad uoluntatem domini secundum consuetudinem manerij faciend reddend inde redditus seruitia consuetudines inde prius debitas consuetas c. Et dat domino pro fine c. Et fecit domino fidelitatem These as I said be called tenauntes by copye of courte rolle bicause they haue none other euidence to shewe concernyng theyr landes saue onely the copies of the rolles of theyr lordes courte Neyther can these tenauntes sue or be sued for such landes in yâ— kynges courte by wryte or otherwyse but if they wyll implede or sue others for suche copye landes they must do it by way of playnt in the lordes court after this sorte A. de B. queritur uersus C. de D. de placito terrae uidelicet de uno mesuagio xl acris terrae .iiij. acris prati c. cum pertinenÌ„ Et facit potestationem sequi quaerelam istam in natura breuis domini regis assise mortis antecessoris ad coÌ„em legem uel c. plegii de prosequeÌ„do F. G. c. ⧠Nowe althoughe some suche tenauntes haue an inheritaunce accordynge to the custome of the maner yet in very dede they are but tenantê at the wyll of the lorde For as some men thynke if the lorde wyll expell them and put them forth they haue no remedy at al but to sue vnto their lorde by weye of peticion desyrynge him to be good vnto theÌ„ For if they myght haue any remedye by the law then shulde they not be called saye they tenauntes at the wyl of the lord after the custome of the maner But other men of no lesse lernynge and prudency haue bene of contrary sentence as lorde Bryan chiefe iustice in the time of king Ed. the iiij whose opinion was alwayes that if suche tenaunt by the custome payenge his seruices be eiected and put forthe by his lorde without cause reasonable he maye very wel bryng and maynteyne an action of trespace agaynste his lord at yâ— coÌ„mon law as appereth termino Hilarij anno xxj E. iij. Also lorde Danby chiefe iustice in likewyse was of the same iudgement as appeareth Termino Mich. anno vii Ed. iiij where he saith that the tenaÌ„t by the custome is as wel inheritable to haue his lande after the custome
as is he that hath a free holde at the common law but the determination of this question I remit to my great maysters which caÌ„ solue the knottes and enigmaes of the lawe For asmoche as yet styl of this matter Causidici certant adhuc subiudice liâ— est ⧠Also ye shall vnderstand that the vsage of some Manour is when the tenaunte wyll surrender his land to the vse of an other that he shall take a wande in his hande and deliuer it to the stewarde of the court and the stewarde shal deliuer the same wand in name of seisin to him that shall take the lande and suche a tenaunte is called tenaunte by the verge Diuerse other customes there be of surrendryng of copy hold landes which here for tediousnes I wyll omytte And forasmoch as tenauntes by custome of the Manoure haue by the course of the common lawe no free holde therfore they be called tenauÌ„tes of base tenure Hytherto I haue treated of the first membre of oure diuision that is to wytte of chatelles for as I sayde all leases for terme of yeres and at will be accoÌ„pted in the law but as cateles and be comprysed vnder that name saue that they be called cateles reals where as kyne oxen horses moneye plate corne and suche lyke be called chatell personalles Nowe we wyll procede to thexplanicioÌ„ of the second membre that is to say of free holdes ⧠A diuision of free holdes FRee holdes or franke tenemeÌ„tes a man may haue in suÌ„dry wyses for ether he is seased for terme of his owne lyfe or for terme of an other mans life Yf he be sesed for terme of his owne life either he haue gotten such estate by way of purchase or els the law hath entiteled him therunto I call it by purchase whether he commeth vnto it by his owne barganing and procuremeÌ„t or by the gyft of his frende and I call it by the operation and intitelynge of the lawe whan a man maryeth a woman that is an in heritres and hath issue by her and she dyeth nowe shal he haue the landes durynge his life by the course of the lawe and shal be called tenaunte by the curtesye of Englande In likewise yf a man be seased in feâ— simple or fee tayle of landes and taketh a wyfe and he dyeth the law giueth vnto the wyfe the thyrde parte of her husbandes laÌ„des for terme of her life and she shal be called tenauÌ„t in dower ⧠Tenaunt for terme of life TEnaunte for terme of life is he that holdeth landes or tenemeÌ„tes for terme of his owne life or for terme of an others lyfe Howe be it the most frequent and common maner of speakynge is to call him that hath estate for terme of his own life tenaunte for life and him that hath estate for terme of an others life tenaunt pour terme dautre vie that is to saye tenaunte for terme of an others life Ye shal note that like as he that maketh the lease is called the lessoure he to whome the lease is made is called the lessee so he that maketh a feffement is called the feffoure and he to whome the feffement is made the feffee Also if tenaunte for terme of lyfe or tenaunte for terme of an other mans life do wast the lessour or he in the reuersion shall maynteyne very wel an action of waste agaynste hym and shall by the same recouer treble damages Finally ye shall vnderstand that by an acte of parliameÌ„t made in the xxvii yere of oure Souerayne lorde that now is king Henry the eight it is enacted that no free holde nor estate of inheritance shal passe ne take effecte but by dede indented sealed enrolled in one of the kynges courtê at Westmynster or els wythin the same countie where the lande dothe lye as by the sayd acte more at large appereth ⧠Tenaunt by the curtesi TEnaunt by the curtesye of Englande is he that hath maryed a wyfe inherited and hath had issue by her and she is deade in this case the lawe of Englande permytteth and suffreth the husbande of suche wyfe to reteyne all his wyues landes that she had either in fee simple or fee tayle so longe as he lyueth And this is by the curtesye and vrâ—anitie of Englande for this thing is vsed in none other region But in thys case it is requyred that the chylde ve vitall that is to saye be borne and broughte forth iâ— to this worlde aliue and therfore the common sayeng hath bene that onles the chylde be harde crye the father shall not be tenaunte by the curtesye for the onelye proue and argument of lyfe in an infaunt new borne is the vagite and cryenge Ye shal furthermore vnderstand that onlesse the husbande be in actual and reall possession of his wyues landes seased of them in her right he shall not be tenaunte by curtesye after her death And therfore yf landes descende to a mans wyfe so that she is tenaunt in the lawe and to euery mans accion yet if the husbande haue not made an actuall entreedurynge the couerture and matrimony betwene theâ— he shall not be tenauÌ„â— by the curtesye for it shall be reputed and iugged his foly and negligence that he wolde not entre in her lyfe tyme. Otherwyse it is of aduousons â—â—Ì„tes and such other thynges which forthwyth when they descende be in a man or woman wythout any entre or further ceremonye of lawe Note that if tenaunte by the curtesye of England wyl suffre or make any wast in the landes or tenemeÌ„tes that he so holdeth he is punyshable therfore by action of wast Also it is to be knowne that of thinges that be in suspense a man shall not be tenaunt by the curâ—â—sye and therfore yf a man be the tenaunt in fee simple of certayne lande and doth entremary wyth a woman that is the seignoresse or lady of the same and hath issue by her and she dyeth yet he shal not be tenaunt by the curtesye of the lordshyp of seignorye bycause himself is tenaunt of the land and therfore the lordeship is suspended for the time for a man can not be both lorde and tenaunt of one thing but if he had not bene tenaunt of the lande he shulde haue had the lordeshyp after the deathe of his wyfe by the curtesie of Englande very well Of tenaunt in dower TEnaunte in dower is she that hath bene maried to an husbaÌ„d that was during the matrimony betwene them seised of landes â–ª or 〈◊〉 in fee simple or fee tayl â–ª which is nowe dede and she seased of the thyâ— departe of her husbande 's sayde landes for terme of her life For by the common lawe of the lande if the husbande be at any tyme duryng the couerture seased lawfully whether 〈◊〉 be by purchase or by discent 〈◊〉 theâ— in fee or in tayle dye his 〈◊〉 to be indowed by the course of the coÌ„mon lawe of the thyrde foâ—e And in some places
by an aunciente custom she shal be indowed of the 〈◊〉 â–ª yea and thoughe 〈…〉 seased actually durying the courture yet if the landes be caste vpon 〈◊〉 by the lawe so that the law calleth him tenaunt to euery mans action it suffiseth for the woman to demaunde her dower for it were vnreasonable that the negligence 〈…〉 of entrynge of the husbande shulde hurte the wyues 〈…〉 Otherwise it is as I sayde before of tenauÌ„t by the curtesy for if landes descende to a woman couert and the husbande for slouthfulnes or negligence doth not entre in his wyues life he shal not be tenaunt by the curtesi◠〈◊〉 by all lawes the wyfe oweth obedience and subiectioÌ„ to her husbande and therfore she can not compel him to entre but when landes descend to the wyfe the husbande onelye haue power to entre at his pleasure And ye shall vnderstand that onlesse the wyfe be passed the age of ix yeares at the tyme of her husbandes deathe she shall not be endowed by the common lawe But it is to be knowen that a womaÌ„ maye by diuers wayes estoppe and preuidiâ—e her selfe of her dower as if she commyt any crime for which she is atteynted of treasone murdre or felonye â—he gettâ—â—no dower not wythstandyng she hath obteyned her pardone Also yf after the deathe of her husband she taketh a lease for terme of lyfe of the same landes wherof she is indowable she losed her dower of the same Moreouer yf she departethe from her husbande and lyuethe in aduoutrye wyth an other man and not reconcieled agayne to her husbande wythout coercion of the ecclesiasticall power she lesethe her dower after her husbandes deathe She shall be also barred of dower yf she wyll wythholde from the heire the charters and euidence concernynge that lande wherof she asketh dower But none other saue the heyre can wytholde her dower for thys cause It maye not be vnknowne also of what thynges she maye demaunde dower and of what thinges not Of landes messuagies aduousons rent charges rente seruyses or signories in grosse or otherwyse of villaynes of coÌ„mons certayne of estouers certayne she is dowable But of commons and estouers sans nombre also of annuities of homage of thingê of pleasure as of seruyces of paimet of roses and semblable she shall not be endowed There be yet two other kindes of dower the one is called dowment ex asseÌ„su patrâ—is and the other is called dowment de la plus beale ê‘tie that is to saye of the fairest parte Dowment ex assensu patris is whan the father is seased of landes in fee and his sonne whiche is heyre apparaunt endoweth his wife at the churche dore whan he is espoused of parcell of hys fathers landes wyth the assente of his father in wrytinge testifienge the same assent if in thys case her husband dye she may forthwyth entre into the laudes so assigned vnto her wtout further appâ—yntynge or proces of law although the father of her husbande be yet aliue in actual possession of the lande But if she thus do and take her to thys endowment at the churche dore she can not haue her dower by the common lawe of the thyrde parte of all her husbandes landes or any parcell of them how be it if she wyll refuse this assignement made vnto her at the church dore and demaund dower at the common lawe she maye verye well A man maye also endow his wyfe at the time of the spousailes of his own landes whiche he hath in his owne possession and that dower is called dower ad ostium ecclesiae Dowment Dela plus beale that is to saye dowmente of the fayreste parte shall be in thys case Whan a man is seased of landes whiche he holdethe of an other man by knyghtes seruice and of other laÌ„des which be of socage tenure and hathe issue whyche is wythin the age of .xiiij. yeares dye and the lorde of whom the lande is holden by knyghtes seruyce entrethe in to the lande holden of hym and the mother of the chylde entrethe in to the socage tenure as gardeyne in socage yf in thys case the woman wyll brynge a wrytte of dower agaynste the lorde whyche is gardeyne in cheualrye he may plede the speciall mater and shewe howe she as gardeyne in socage hath so moche lande and pray the court that she maye be suffred to endowe her selfe of so moche lande beynge in her owne custodie as amounteth to the thyrde parte of the hole landes And than the iudgemente shall be that the gardeyne in chyualrye shall reteyne the lande holden of hym quyte from the woman duerynge the non age of the warde After which iudgement she maye go and in presence of her neighboures endowe her selfe of the beste parte of that whyche is in her custodye amountynge to the thyrde parte of the hole and than is she called tenaunte in dower de la plus beale A diuision of inheritaunces HYtherunto I haue spoken of free holdes nowe it remayneth to treate of inheritauÌ„ces not that inheritauÌ„ces be no free holdes for they be free holdes also but the other estates of whiche I haue here tofore treated be onely free holde and of no hygher nature where as a state of in heritance although it â—e a free hold yet it is not to be called by that name sythe it is a farre more excellent and greater estate But ye shall vnderstande that of inheritaunces some be of more amplitude and excellencye than other some be as that inheritaunce whyche is pure simple and without limitacion of what heyres is it called fee simple But when I make a limitacioÌ„ of what heyres thaÌ„ is it called fee tayle of which also be two sortes as herafter more at large shal be declared Nowe the nature of fee simple is to be setforth wyth oure accustomed compendiousnes Fee simple FEe simple is as I sayd the most ample large inheritaunce that can be in this realme diuised or excogiâ—ate as that whiche a man hath to hym and to his heyres simply without any further limitacion for whether they be of his owne bodye begot ten or not so that they be the next of his kinne and wythin the degrees it suffiseth So then tenaunte in fee simple is he that hath landes or tenementes whether it be by purchase or by discent to him to his heires for euer For if a man will purchase landes in fee simple he must nedes haue these wordes his heyres in his purchase for these be the onlye wordes that make an estate of inheritaunce Therfore yf landes be gyuen to a man for euer no mencion be made of his heyres he hath an estate but for terme of his lyfe bycause these wordes his heyres do lacke Yet neuertheles if a maÌ„ by his testament doth deuise landes to an other in suche where the custome wyl serue so to do though he maketh no mencion of heyres but saythe that he bequethethe to suche a
personne suchâ— landes to haue to hold to him and to his assignes for euermore here a state of inheritauÌ„ce doth passe for in testamentes the wil and intent of the testaour is to be pondred not the formal prescripte wordes of yâ— law Also these termes in the lawe franke mariage and franke almoâ—e that is to saye free mariage and free almose do include in them wordes of inheritaunce And therfore if I giue landes to a man wyth my daughter in franke mariage wythout further addicion or meÌ„cion of heires this is an estate of inheritaunce as we shal hereafter declare more plentiouslye In likewyse it is of landes giuen to an house ecclesiastical in pure fraÌ„k almes Moreouer if landes be giuen to a maÌ„ to his blode or to him to his seed he hath in both cases a state of inheritauÌ„ce for in yâ— one he hath a fee taile in thother a fe simple For this word seed and bloud and suche lyke do implye wordes of inheritaÌ„ce But nowe it is to be sene who be sayde a mannes heyres in the lawe Ye shall therfore knowe that my brother or syster by the halfe bloude that is to wytte by the fathers syde and not by the mothers or contrary wyse by the mothers and not by the fathers shall neuer be myne heyre nor none that come of them Neither my bastarde can be myne heyre nor myne owne naturall father ne mother nor grandefather ne grandmother can be myne heyre For it is a principle and grounde in the lawe that inheritaunce may linially descend but ascende it may not And therfore if I haue landes in fee simple and dye wythout issue of my bodye my father can not be myne heire but my fathers brother or syster shal and then if my vncle or aunt dye seased wythout issue my father shal haue the landes as heir to myne vncle or to my aunte but heyre to me he can not be But it maye go from me to myne vncle or aunte well ynoughe for that is not called a linial ascension but a collatrall And ye shal note that by the commoÌ„ lawe of this realme my eldest sonne shall haue the hole inheritaunce and after hym if he hathe no issue the seconde sonne and so forth And if I haue no sonnes but daughters than shal al the daughters togither inherite if I haue no issue at all neither sonâ—es ne daughters than shall my eldest brother in heritage succede me but if I haue no brother than my systers if I haue any if not my vncle by my fathers syde if the landes be of myne owne purchase And to be shorte if there be none in lyfe of my fathers syde it shall goo to my mothers syde and if there can be found no heyre neither by fathers syde ne yet by mothers then shall it reuerte and eschete as they call it to the lord of whome it was holden for euerye lande must nedes be holden of some lorde as shall be here after shewed But if landes descende vnto me by my mothers syde than if I fayle of issue the landes shall descende onely to my heyres of my mothers syde neuer to myne heyres of my fathers syde as on the contrarye syde yf I haue landes or any hereditamentes by disceÌ„t froÌ„ my father or his blode they shal neuer descend to my heires by my mothers syde Thus ye se a greate difference in this behalfe bitwene purchased landes and landes which descende from my auncestoure Yf there be thre sonnes and the myddell sonne purchaseth landes dye wythout issue the heldeste shall haue the laÌ„des and not the yongest Also it is a principle in oure law that none can be myne heyre of landê that I holde in fee simple onles he be myne heyre by the hole blode that is to say both by father and mother for if a man hathe issue two or thre sonnes by sondry wyues and the eldest purchaseth landes in fee and dyeth wythout issue his halfe brethren I meane those that be not his brethren bothe by the fathers syde mothers syde shall not haue the lande but it shall go to his vncle Lykewyse if a man hath by his fyrste wyfe a sonne and a daughter and by his seconde wyfe an other sonne and the sonne by the fyrst wyfe purchaseth landes in fee and dyethe wythout issue the syster german shall haue the landes by disceÌ„t as heyre to her brother and not to the yoÌ„ger brother Otherwise it is of landes or other hereditameÌ„tê entailed as shal be herafter specified Also if a man be seised of landes in fee simple and hathe issue a sonne and daughter by one wyfe and afterwarde a sonne by an other and dyeth and the eldest sonne entreth in to the landes and after dyeth wythout lawfull issue of his body the daughter shall haue the landes and not the yongest sonne and yet the yongest sonne is heyre to his father but he is not so to his brother But if in thys case the eldeste sonne had not entred after the death of his father but had died before any entre made by hym than shal not the syster germaine entre but the yonger brother is heire to his father bicause the eldest brother was neuer in actuall possessioÌ„ which is requisyte to that personne that claymeth to be heyre collaterallye But to the lyniall heyres it suffiseth that the auncestour shuld haue bene heyr yf he had liued I meane as thus A man is seased of landes and hath issue a sonne daughter by one wyfe and afterwarde a sonne by an other he dyethe the eldeste sonne entrethe not but dyeth wythout issue before he can make any actuall entree hys syster shall not haue the landes as heyre to her brother bycause her brother was neuer actually possessed but yâ— yoÌ„ger brother shall haue them as heyre to his father Yet if theldest sonne in that case had lefte behynde him issue of his body whether it had bene soÌ„ne or daughter this issue not wythstandyng that the father of the issue was neuer possessed either actually or in the law shal haue the laÌ„des and shal conuey his discent from his father for the sonne or daughter is linial heyre where as the brother sister vncle aunt c. be heyres collaterall and so obserue a dyuersitie I call an actuall possession whan a man entreth in dede in to landes to him desceÌ„ded but a possessioÌ„ in lawe is called when landes be descended to a persone ann he hath not yet real ly and actually eÌ„tred in to them For notwythstandydge that he is not in actuall possession yet he is possessed in the lawe that is to say in the eye consyderation of the law for asmuch as he is tenaunt to euery mans action that wyll sue for the sayd landes for els there shulde insue an intollerable inconuenience as we shal more copyously open in an other place Ye shall vnderstande that thys worde inheritaunce is not onelye to be accommodate and
applied to that whyche commeth by discente from a mannes auncestours but also to euery purchase in fee simple or fee taile Fee tayle Ye shall vnderstande that before a certayne statute called the statute of Westminster seconde there was no state tayle but all was fee simple eyther purely that is to saye wythout condition or condicinallye as appereth by the pretence of yâ— said statute but now sythens the promulgating of that statute diuers formes of state tayles haue rysen Fee tayle is whan it is prescribed and lymytted in the gifte what heyres and by whome engendred shall inherite As for exemple I gyue landes to a man and to his heyres and go no further this is fee simple but if I make a limitation and adde of his hody begotten now is it fee taile that is to saye a fee or inheritaunce limitted prescribed determinate or assigned So that if I gyue landes to a man and to his heyres he hathe fee simple but yf I gyue landes to hym and to hys heyres of hys bodye lawfully begotten he hathe but a fee tayle for asmoche as I appoynte lymytte prescribe and determyne the heyres and for lacke of suche heyres the gyfte shall be expired and worne out the landes shall reuerte agayn to the gyuer or his heyres But ye muste obserue that there bo two kyndes of fee tayle There is a generall tayle and there is a speciall tayle Fee tayle generall is as where landes be giuen to a man and to his heyres of his bodye begotten without anye mencyonynge and expressynge by what woman they are to be begotten And therefore yfa maÌ„ be tenaunte in the generall tayle of landes and taketh a wyfe and hathe issue by her and she dyeth and afterwarde he takethe an other wyfe of whom he hath also other issue here either of these issue is inheritable to this land entayled But if I expresse in the gifte by what womaÌ„ the heires shall be procreate and ingeÌ„dred then is it an especiall tayle as for exemple to make the thynge playne if landes be gyuen to a man and to the heyres of his body lawfully begotten by Katherin his wyfe this is an especiall tayle for the issue of him begotten by an other woman shal neuer inherite by force vertue of the tayle Lykewyse it is if landes be giuen to a woman and to yâ— heires of her body law fully begotten shewe not by what man this is a general taile but if I adde saye by suche a man her husbande than is it an especiall taylle Also yf I gyue landes to a man and to hys wyfe and to the heyres of there two bodyes lawfully begotten thys ys an especyal tayle as wel in the husbande as in the wyfe Semblably it is yf a man gyueth landes to an other man wyth hys daughter or kynswoman in francke mariage thys emplyeth a state tayle especiall and in thys case as wel the man as the woman hathe estate in in the speciall tayle But yf I gyue landes to a man and to suche a woman and to hys heyres that he shall begette of her here the woman hathe estate but for terme of her lyfe and the husbands an estate in the especyall tayle In lykewise it is on the womaÌ„s behalfe as if I gyue landes to a man and to hys wyfe and to her heyres of the bodye of her said husbande engendred he hathe an estate but for terme of lyfe and she an estate in the specyall tayle But in bothe cases yf I hadde sayde to the heyres and not hys or her heyres than shulde eyther of them haue hadde an estate in the specyall tayle bycause thys worde heytes is as well referred to the one as to the other Ye shall also vnderstande that yf landes be giuen to a man ond to the heyres males of his bodye this ys a state tayle and in this case the heyre femalle shall neuer inherite Finally it is to be noted that of landes whych a man hath in fee simple the possession of the brother shall cause the syster germayne that is to saye the syster bothe by the fathers syde mothers to inherite and not the brother by the halfe blod as here tofore was said but of landes which be entayled otherwise it is Therfore if a man be seysed of landes in the generall tayle and hath issue by hys furst wyfe a sonne and a daughter and also a sonne by an other wyfe dyeth and the eldest sonne entreth in to the landes after dyeth the suster germayne shall not haue the landes but the yonger brother of the halfe blode bycause whosoeuer shall inherite landes in taile must claym them as nexte and immediate heyre not to hym that dyeth last seased of the landê but to hym vnto whome the landes were fyrst gyuen whyche in the case before remembred is the sonne and not the daughter Thus ye shal marke obserue a great diuersitie bytwene the forme of successyon in landes of fee simple and the forme in fee tayle Tenaunt after possibilitie of issue extincte WHan landes or tenementes be giuen to a maÌ„ and to his wife and to the heires of there two bodies lawfully begotten yf in thys case either of them chaunce to dye before they haue issue betwene them he or she that ouerlyueth hys styl tenaunt in tayle but wythout all possibilitie of any issue that can be heyre to these landes entayled and for thys cause he or she thus ouerlyuynge is called tenaunte after possibilitie of issue extincte for in suche a tenaunte is all possibilitie of issue that maye be inherytable to these landes by force of the gyfte in tayle vtterlye extincte and quenched and by his or her deth the state tayle shall expyre cease and be abolyshed for euer and shall reuerte agayn to the gyuer or donoure from whence it came Yet forasmoche as thys tenaunt after possibilitie of issue hadde ones an inheritaunce in hym he shall not be punyshede by an action of waste though he makethe neuer so moche waste in the landes and tenementes whereas yet in effecte he is but a tenaunte for terme of lyfe Of perceners Hitherunto I haue made a compendious and short declaracyon of estates of al sortes But where I sayde that among susters there is no prerogatyue or preminence concernyng the inheriting of theyr auncestoures landes but that they shall be al togither inheritours and make as it were but one heyre it is expedient to make a further processe in this behalfe and to shew howe in what maner this partition shall be made But ye shall vnderstande that there be besyde parceners at the common lawe whyche be onelye susters also parciners by custome whiche is amonges brothers contrarye to the course of the common lawe and this custome is in Kent and in other places where landes and tenemeÌ„tes be of the tenure of Gauel kynde Ye shall thefore knowe yâ— whan a maÌ„ is seised of landes in fee simple or see tayle and hath no
it is that the grauntoure shulde be enforced to atturne sith an atturnement is adhibited to none other purpose than to haue the conseÌ„t and agremente of the particular tenaunte to the intent that it may appere that he hath notice or knowlege of this grauÌ„te but here where as the particular tenaunte hymselfe is the grauntour an atturnement were superfluous and more than neded Of seruices HYtherunto I haue brefely touched and ouerrun the sundrye kyndes and formes of estates Now forasmoch as there is no tenure but hathe vnto it some seruice knyt and annexed it were very necessary to declare howe many kyndes of seruices there be and what seruyce is due to euery tenure For the knowledge her of ye shal vnderstande that the principall and moste common kynde of seruyce that the tenauÌ„t oweth to hys lorde is called knyghtes seruyce Knyghtes seruice KNyghtes seruice includeth homage fealeie and for moste ê‘te escuage and whosoeuer holdeth his laÌ„des by knyghtes seruice is bound by the law of this realme to do vnto his lorde homage and fealtie and to paye for most parte escuage when it shal be assesed by authoritie of parliamente as hereafter more playnlye shal be declared vnto you Homage is the most huÌ„ble and reuerent seruice that a man of free condition can do for whan the tenaunte shall do homage to his lord the lord shal sytte and the tenaunt shal knele before hym vpon bothe knees and shall holde his handes bitwene hys lordes handes and saye in this wise I become your man from this daye forthward of life and of membre and of earthly honoure and to you shall be faythfull and loyall and faithe to you shall beare for the landes that I clayme to holde of you sauynge the faythe that I beare vnto oure soueraigne lorde the kynge and than the lorde so syttynge shal kysse him But if an ecclesiasticall persone whych by hys ordre and profession hath addicted himselfe to the seruice of god in especiall shall do homage to his lord he shall not say I become your man bycause he hath professed himselfe to be the onely man of god but shal say I do to you homage and shall be to you faythfull and true and fayth to you shall beare for the tenementes yâ— I holde of you sauynge the faythe whyche I do owe to our soueraygne lorde the kynge Ye shal note also that when a woman not maried doth homage to her lord she shal not say I become your woman for it is not conuenient that a woman shulde be the woman of any other than of her husbande that she shall mary but she shal saye euen as the ecclesiasticall persone sayeth I do vnto you homage c. That yf perchaunce a man holdeth sundry landes and tenementes of sundrye lordes and euery of them by knyghtes seruice than in the ende of his homage makinge he shal say sauynge the fayth that I owe to our soueraygne lorde the kynge and to myne other lordes And it is to be knoewn that none is bounde to do homage to the lord onles it be suche a tenaunte as hath in the tenauncye an estate of fee simple or fee tayle eyther in hys owne ryght or in the ryght of an other For if a woman haue landes or tenementes in fee simple or fee tayle whyche she holdethe of her lorde by knyghtes seruice and taketh an husbande and haue issue in this case the husbande in the lyfe of his wyfe shal do the homage bycause he hath a title to haue the landes by the curtesy of Englande yf he ouerlyueth her also he holdeth them nowe in his wiues ryghte yet before issue had bytwene them yâ— homage shal be made in theyr both names But if the woman dieth before any homage made by her husbande in her lyfe and the husbande kepeth styll the landes as tenaunt by the curtesye now he shall not do homage to hys lorde bycause he hath nowe an estate but for terme of lyfe Fealtie is as moche to saye as a fidelitie or faythefulnes in doynge wherof the tenaunte shall holde hys hand vpon a boke say thus Heare you this my lorde I to you shall be faythfull and true and fayth to you shall beare for the landes and tenementes whyche I clayme to holde of you and duelye shall do you the customes and seruices whiche I owe to do you at the termes assigned as me helpethe god and hys sayntes And than he shall kysse the boke but he shal not knele as he the doth homage And ye shal obserue that homage can not be done but to the lorde hym self where as the steward of the lordes courte or the bailife may take fealtie for the lorde Also tenaunte for terme of life shal do fealte but homage as is sayde he can not do Nowe as concernynge escuage that is to saye the seruice of the shild ye shal vnderstand that he that holdeth his laÌ„des by escuage whan the kynge makethe a viage royall in to Scotlande for the subduynge of the Scottes is bounde to be wythe the Kinges Maiestye by the space of .xl. dayes well and conuenientlye arayed and appointed for the warre And he that holdeth his lande but by the moitie of the fee of knightes seruice is bounde by the force of his tenure to be wyth the kynge by the space of xx dayes and so proporcionably accordyng to the rate and quantitte of hys tenure But now to our institute and purpose after thys viage royall in to Scotlande in whyche the kynge goeth in persone and after the retyre in to Englande agayne a parliamente is wont to be sommoned in whyche shal be prescribed asseised what euerye persone that helde hys lande by homage and went not wyth the king neither by hymselfe nor by his deputye shall paye to hys lorde in satisfaction of his not seruynge and accordynge to the taxacion herof euery tenaunte shall paye to hys immediate lorde whether it be the kyng or other after the rate and porcion of hys tenure if he holdeth by an hoole fee he shall paye the hoole escuage if by a moitie the halfe yf by the fourth ê‘te of a fee the fourth parte c. and this money thus asseysed is called scurage or escuage for whyche the lorde to whome it is due maye verye well for the non paymeÌ„t therof distreyne But here it is to be noted that some tenauÌ„tes by custom vsed tyme out of mynde are bound to pay but the moitie or the thyrde parte of that which shall be asseised and limited by acte of parliament Yea and the custome is in some place that to what somme of money so euer escuage is asseised yâ— tenauÌ„tê shall paye neuer but such a certeyne somme of mony and this escuage is called escuage certeyne where as the other is called escuage vncertayne Finally ye shall vnderstande that escuage vncertayne is alwayes adiuged to be knightes seruice and draweth vnto it warde mariage reliefe but escuage certaine is no knyghtes
seruice but is of the tenure of socage as shall be herafter more amplye shewed Of warde mariage and reliefe EUery knyghtes seruice draweth vnto it warde mariage and releife Wherfore it is now ryght expedient somewhat to entrete of them Ye shall therfore be admonished that whan the tenaunte whyche holdeth hys lande by knyghtes seruyce dyeth his heyre male beynge at that tyme wtin thage of .xxj. yeares the lorde shall haue the warde that is to saye the custodye or kepynge of the landes so holden of hym to hys own vse and profyte tyl the heyre cōmeth to the full age of .xxj. yeares For the law here presumeth that tyl he cōme to this age he is not able to do such seruice as is of this tenure requyred Furthermore yf such heyre be vnmaryed at the tyme of the deathe of the tenaunte than the lorde shal haue also the warde and bestowynge of the maryage of hym But yf tenaunt by knyghtes seruice dyeth hys heyre female being of thage of .xiiii. yeres or aboue thā the lord shal haue the ward neyther of the lande ne yet of the bodye of suche an heir and the reason herof is bycause a woman of that age maye haue a husbande hable to do knyghtes seruice that is to saye to wayte vpon the kynges maiesties persone whan he auaunceth into Scotlande wyth hys armye royall But if suche an heyre femalle be within the age of .xiiii. yeres and not maryed at the tyme of the deathe of her auncestoure than the lorde shall haue the warde of the lande holden of hym tyll suche heyre female commeth to the age of .xvi. yeres by force of an acte of parliamēt in the statute of Westm̄ the fyrste Note that there is a great diuersitie in the lawe bytwene the ages of females and of males for the female hath these manye ages apoynted by the lawe Fyrste at .vii. yeares of age the lored her father maye distreyne his tenauntes for ayde to mary her Seconde at .ix. yeares of age she is dowable Thyrdlye at .xii. yers she is hable to assent to matrymonye Fourthly at .xiiii. yeares she is able to haue her lande and shall be oute of warde if she be of thys age at the geantye but of the kynge onelye Homage auncestrell TEnaunt by homage auncestrel is he whyche holdeth his lande of his lorde by homage and bothe he and his auncestours whose heyre he is haue holden the same lande of the saide lord of his auncestours tyme out of mynde by homage and haue done vnto them homage and this is called homage auncestrell by reason of the longe continuaunce whyche hath bene by title of prescription as well concernynge the tenauncye in the bloude of the tenaunte as concernynge the lordeshyp in the blode of the lord And this seruice of homage auncestrell drawethe vnto it warrantye that is to saye yf the lorde which is nowe in lyfe hathe ones receyued the homage of his tenant he oughte to warrant the same tenaunte what tyme so euer he shal be impleaded or sued for such lande so holden of him by homage auncestrell Moreouer suche seruice of homage auncestrell draweth to it acquitall that is to saye the lorde oughte to acquyte the tenaunt agaynste all other lordes that can demaūd any maner of seruice out of the tenauncye Wherfore yf in thys case the tenaunte whyche holdethe by homage auncestrell be impleaded of hys landes and voucheth his lorde to warrauntye who commeth in by processe and demaundethe of the tenaunte what he hath to bynde hym to the warrantye and the tenaunt sheweth howe he and his auncestours whose heyre he is haue holden his lande of hym and of his auncestoures tyme ease or continuall infirmitie All these and suche lyke be dispargementes But here also ye shal vnderstande that it shall be sayd no dispargement onlesse the heyre be so maryed when he is wythin the age of discretion that is to say within the age of .xiiii. yeres For if he be of that age or aboue and consenteth to such mariage it is no dispargement neyther shall the lorde for suche mariage lose his warde bycause it shal be reputed and assigned to the folye of the heire beynge of age of discretion to consēt to suche mariage Now yf the gardeyne offre to the heyre beyng in his warde a conuenient mariage wythout dispargement and the heyre refuseth it as he maye very wel do than the lord shall haue the value of the mariage of suche heyre whan he commethe to hys full age But yet yf he marye hymselfe being so in warde agaynste the wyll of hys gardeyne than he shal paye the double value by force of the statute of Merton before remembred And ye shall note that if landes holden by knyghtes seruice descende to an infaunte from hys mother or from any of hys auncestours his father beyng yet alyue in thys case the lorde shall not haue the mariage of this heyre for during the lyfe of the father the sonne shall be in warde to no man Finally it is to be knowne that he whyche is gardeyne in cheualrye in ryght maye after he hathe seased the warde graunte the same eyther by dede or wythout dede to an other man than he to whom suche graūt is made is called gardeyne in fayte Now as touching reliefe ye shal knowe that yf a man holdethe hys lande by knightes seruice and dyeth hys heyre beynge of full age the full age of the male is .xxi. yeares of the female .xiiii. then y◠lord of whome the land is holden shal haue of the heyr reliefe Reliefe of a hole knightes fee is C s. of halfe a knightes fee fyftye s Also a man maye holde landes of a lord by two knyghtes fees and thā the heyre beynge of full age at the death of his auncestoure shal paye to his lorde for reliefe .x. poundes Seruice of castel garder YE shal vnderstande that a man may holde by knyghtes seruice and yet not hold by escuage nor shal paye no escuage for he may holde by castell garder that is to saye by seruyce to kepe a tower of hys lordes castell or some other place vpō a reasonable warnynge whan hys lorde heareth that enemyes wyll come or be alredy come into Englande Thys seruyce is also knyghtes seruice and drawethe to it warde mariage reliefe as the common knyghtes seruyce dothe Of graunde sergeauntie THere is also an other kynde of knightes seruice called grande sergeantye whyche is where a man holdeth is landes or tenementes of the kynge by suche seruice as he oweth in proper person to do as to bear the baner of oure soueraigne lorde the kynge or his spere or to conduct hys hoste or to be his marshall or to be the sewar caruar or butler at the feaste of the coronation or to be one of the chamberlaynes of the receypt of his eschequere or to do lyke seruices to the kyng in propre persone such maner of seruyce I saye is called grande
prysoner in warres and is compelled to serue and become the thrall and bondeman of hym that toke hym the lawe calleth suche persone a villayne And ye shall note that vyllaynes be properly called in latyn serui bycause that whaÌ„ they be taken in war the captaynes be wonte not to kyll them but to sell them and so to saue theyr lyfes so that they be called serui a seruando that is to say of sauyng They be also called Mancipia a manu capÃendo bicause that they be taken by hand poure of the enemies Nowe as I sayde by the lawe oâ— nature we are al borne free but after that by the lawe of Gentilitie seruitâ—te inuaded the worlde than ensued the benefyte of manumission Manumission is de manu datio that is to saye a gyuynge out of the hande or power For so longe as a man is in bondage and seruitute he is subiecte to the hande and power of an other and whan he is manumissed he is made free delyuered from the sayd power so that a manumission is nothynge elles than an enfranchisemeÌ„t that is to saye a wrytynge testifieng that the lorde hath enfranchised his villayn al his offpring and sequel Also yf the Lorde maketh to hys villayne an obligacion of a certeyne summe of money or grauntethe to him by his dede an annuitie or yearly pension or leaseth to hym by dede landes or tenementes for terme of yeres any of these actes do imply an enfranchisement Lykewyse yf the Lorde maketh a feoffement to his villayne and maketh vnto hym lyuery of seysâ— thys also is an enfranchisment and secret manumissioÌ„ Brefely to speke where so euer the lorde compelleth his vyllaine by the course of the lawe to do that thyng that he myght otherwyse eÌ„force him to do or to suffre without the auctoritie and compulsion of the lawe he doth by implication enfranchise his villayne as if the lorde wyl bryng agaynst his villayne an action of det an action of accompt of couenant or of trespace these and such lyke be in the eye of the lawe enfranchisementes and manumissions bycause that the lorde in all these cases may haue the effecte and purpose of his suite that is to saye the goodes catels and correctioÌ„ of his bondman without the compulsion of the lawe euen by his owne propre power and authoritie whyche he hath vpon hys villayne But if the lord doth sue his vilayne by an appeale of felonye the villayne beyng lawfully endyted of the same before this is no tacite manumission or infranchisemeÌ„te for the lorde though he haue power to beate his villaine and to spoyle him of his goodes yet he can not by the lawe of this Realme put him to deathe Ye shall also vnderstande that if a mannes villayne purchaseth landê or acquyre and gette vnto him anye other thynge the lorde maye by and by entre and sease the same in to hys owne handes Wherfore if the lorde wyll brynge agaynste hys villayne a praecipe ê™ reddat by whyche he demaundeth agaynst his villayne any landes or tenementes this implyeth an enfranchisemente for asmoche as he byndeth himselfe to the prescripte and authoritie of the lawe where as he might vse his owne authoritie by entring and seasing the said landes Finally ye shal marke that some villaynes be called villaynes in grosse and other some be called villaynes regardaÌ„t In grosse be they of which the lorde is seuerally seased and not by reasone of any lordeshyp or maner but they be called regardaunte whiche do belonge to a Manoure of whyche the lorde is seased and the sayd villaynes haue bene regardant that is to saye expectant and attendante tyme out of mynde to the lorde of the sayde Manour in doing vnto him suche seruices as to a villayne appertayne ⧠Of rentes ⧠FOr asmoch as vpoÌ„ euery tenure there is commonly reserued one rente or other therefore I thynke it good sumwhat to treate of rentes But ye must vnderstande that there be sundry sortes of rentes There is one kynde of rente whyche is called rent seruice â—n other whiche is called rent charge and the thyrde which is named in frenche rente secke that is to saye in latyne redditus siccus a drye rente Nowe rent seruice is so called bycause it is knyt to the tenure and is as it were a seruice wherby a man holdeth his landes or tenemeÌ„tê or at lest way when the rente is vnseuerably coupled and knyt wyth the seruice as for an exemple where the tenant holdeth his lande of the king or of any other lorde by fealtie and by certaine rente or by homage fealtie and certaine rent or by any other sortes of seruices by certaine rent this rent is called rente seruice And here ye shal note that if this rent seruice be at any time when it ought to be payed behynde and vnpayde the lorde of whom the land or tenement is so holden whether it be in fee simple fe taile for terme of life for yeres or at wyll may of common right entre and distraine for the rent though there be no mencion at all ne clause of distresse put in the dede or lease I said before that yâ— nature of this rent seruice is to be coupled and knyt to the tenure For where no tenure is there can be no rent seruice And therfore if at this day I be seised of landes in fee simple and make a dede of feffement of the same to an other in fe simple reseruing by the same dede a rente thys can be called no rente seruice bicause there can be nowe no tenure betwene the feffoure and the feffee Otherwise it is of feffementes in fee simple made before the statute of Westmester the thirde called Quia emptores terraruÌ„ For before the making of yâ— statute if a man had made a feoffement in fe simple reseruynge to him a certayne rent yea though it had bene wtout dede here had bene created a new tenure betwene the feffoure and the feffee and the feffee shuld haue holdeÌ„ of the feffoure who by vertue of the same myght of common right haue distreyned for suche rent But at this daye by force of the sayde acte there can be no suche holdyng or tenure created nor begonne and consequently no rent seruice can be at this daye reserued vpon anye gyfte in fee simple except it be in the kinges case who being chiefe lord of all euer might and may giue landes to be holden of him Thus ye se that at this day no subiect can reserue any rente seruice vnto him onles the reuersioÌ„ of the landes or tenementes that he shall graunt be styll in him as where he grauntethe them in feâ— tayle or maketh but a lease for terme of lyfe or for certayne yeares or ells at wil. For in al these cases the reuersion of the fee simple remayneth styll in hym and therfore if here be anye rent reserued it is to be called a rent seruice and is of common right distreynable
aboue the summe of iii s. vi d wherof to be to them yâ— haue auctoritie to take the probation .ii s. vi d and the other .xii d to the scribe for regestring of the same And where the goodes amouÌ„t aboue xl li than onely .v. shyllynges to be taken wherof to be to them that haue auctorite to take the probation .ii s. .vi d and thother .ii s. vi d to be to the scribe for yâ— regestring or els if he wyl refuse that .ii s. vi d then he to haue for euery .x. lines of the same testameÌ„t euery line conteyning in length .x. inches i d And they that haue auctoritie as is aboue sayde shall approue insinuate seale and regester the sayde testamentes and deliuer the same sealed wyth the seale of their office to thexecutours for the sommes abouesaid that with conuenient spede without any frustratorie delay And if any person dye intestate or thexecutours refuse to proue the said testament than they hauing auctoritie as is abouesaid shal grauntthadministration of yâ— testatours goodes or person disceased to the widowe of the same person deceased or to the next of kinne or to both after their discretioÌ„ taking suretie of them for the trewe administration of the goodes dettes whiche they shall be so authorised to minister And where one or diuers claime thadministration as nexte of kin which be egal in degre of kinred or where any one persone desireth the administration as nexte of kin where in dede diuers persones be in equalitie of kinred then in any such case the ordinarie shal be at libertie to take one or mo making request And where diuers do require the administration or where but one or mo of them and not al being in like degre make request than the ordinarie shal admit the widowe and him or them onely making request or any of them taking nothiÌ„g for the same where the persone deceased died not worth C.s. And if he died worthe C.s. and not aboue xl li than ijs vi d onely to be taken And thexecutor or administratour callinge to him the dettors two at the least or such persons to whome any legacie was made and if they refuse than .ii. nexte of kin to the persone deceased and in their defaute .ii. other honest persons shal by their discretions make a trew inuentory indented of al the goodes whiche persons sweringe before the bishoppe or his officers to be trewe shal deliuer the one parte therof vnto them the other kepe with himselfe And none hauinge authoritie to take probate of testamentes vpon payne conteined in this statute shall refuse to take any such inuentory presented or tended to them Prouided if any person shall dispose or wil by his testament any landes or hereditamentê to be solde that the mony or profites of the same be accoÌ„pted for goodes or catels And they hauing the auctorite abouesaid vpon the deliuerie of the seale and sygne of the testatour shall cause yâ— same to be defaced and incontinent shall redeliuer it to yâ— executor wtout any claime And if any require a copy of the testament and inuentory than they hauiÌ„g auctoritie or their ministers shal wtout frustratorie delay delyuer them a copy taking therfore and for the regestring of the same or els for euery ten lines i d as before is specified Prouided that where they hauing auctoritie as is abouesaid haue vsed to take lesse for the probate of testamentes or other thinges concerning the same than is here specified they shal take as they did before this acte Now if any that haue auctoritie to take probate of testamentes or their ministers do attempte agaynste this acte they shal forfete for euery time to the partie greued as moche mony as they shall take contrary to this acte And ouer that x.li the one half to the king the other to the partie greued that wil sue by action of dette bil information or otherwise in any of the kinges courtes wherin no essoine protection nor wager of law shal be alowed And euery of them shal be charged for him selfe and for none other Prouided that euery hauing auctoritie abouesaid may cal before them euery person named executour to the intent to proue and refuse the testament and to bring in inuentaries and to do euery other thinge concerninge the same as they myght before this acte so that neither they nor their ministers shal take aboue the fees limited by this acte ⧠How landes and tenementes may be by testameÌ„t or otherwise disposed inacted aÌ„ xxxii HeÌ„ viii EUery person hauing landes or other hereditameÌ„tes holden in socage or of the nature of socage tenure and not hauing any landes or hereditameÌ„tes holden of the king by knightes seruice or by socage tenure in cheif or of the nature of socage tenure in cheife nor yet of any other person by knightes seruice shal from yâ— .xx. day of Iuly in the yeare of our lorde M.D.Xl. haue full libertie power to giue dispose deuise aswel by testameÌ„t in writing as otherwise by any acte laufully executed in his life al his said landes or hereditamentes or any of them And euery person hauing landes or other hereditameÌ„tes holdeÌ„ of yâ— kinge in socage or of the nature of socage tenure in cheife and hauing also any other landes or hereditamentes holden of any other person in socage or of the nature of socage tenure not hauing any hereditamentes holden of yâ— king or of any other by knyghtes seruice may from the sayd tyme giue and deuise as wel by testament in writing as otherwise by any acte laufully executed in his life al his sayd landes and hereditamentes or any of them at his pleasure Sauing to the king all his right of primer season reliefes aud also all other rightes duties for tenures in socage or of the nature of socage tenure in chief as hertofore hath bene accustomed the same landes or hereditamentes to be taken and sued out of the kinges handes by the person to whom any such landes shal be disposed willed or deuised in like maner as hath bene vsed by any heire or heires before the making of this statute And sauing and reseruinge also fines for alienations of suche landes tenementes or hereditamentes holdeÌ„ of the king in socage or of the nature of socage tenure in chiefe wherof shal be any alteration of frehold or inheritance made by wyl or otherwise as is aforesayd Item al persones hauing landes or other hereditameÌ„tes of estate of inheritance holden of the king in chiefe by knightes seruice or of the nature of knightes seruice in chiefe shal in like maner haue power to giue wyl or asâ—signe two parties of the same in three partes to be deuided or elles as much of the same as shal amount to the yerâ—y value of two partes of the same in three partes to be deuided in certaintie and by special diuisions as it may be knowne in seueraltie for the aduaÌ„cement of his wife prefermeÌ„t