twelve years old may contract Matrimony as well by our Law as by the Civill d Bract. l. 2. c. 37. n. 7. being then adjudged capable of a Husband yet she doth not so soon come to maturity of Judgment but it is sooner notwithstanding out of custody then a man because when she marrieth she doth but alter her condition entring under a new power of a Husband instead of the custody of her Guardian e Glan l. 11. c. 7. Bract. l. 1. c. 6. n. 2. 1. So a Wardship may expire by the naturall or Civill death f V. sus tit 16. of the Guardian which is that which we tearmed the Maxima or Media capitis diminutio or in case the Guardian shall give Lands c. to his Ward or infeoff him For no man can be both a Guardian and Feoffor at one and the same time g Bract. l. 2. c. 5. n. 6. But this is most remarkeable in Guardians which are so by reason of Knights Service that they may either assigne the custody of their Wards to another or bequeath them amongst their other Chattells by common custome to their Executors 2 The Lord looseth the custody of the Body of his Ward when ever he giveth him or her in Matrimony So that if it shall happen the Ward being under age to become single the second time he can by no means recover him into his custody h Lit. l. 2. c. 4 Of Tutors or Over-seers TIT. XXIII MEN though full growne and women though marriageable were amongst the Romans to receive Tutors untill they arrived at twenty five years of age Notwithstanding that they are not so with us beyond the age of one and twenty and that in case where they had not any before either in regard of their Tenure or necessity of the Law However we include Tutors and Over-seers under the name of Guardians although it is apparent those to be more proper in relation to the person these to the Estate a V. tit 14. Sect. 4. in Inst A de ritâ— nuptiarum l. sciendum 20. 1. To some also the Law appoint Tutors and Overseers for by the Statute the King hath the custody of the Lands of naturall Ideots receiving the profis without waste and destruction and finding them necessaries without any regard had of whom the Lands are holden which after the death of the Ideots are to be restored to the right Heires so that they cannot by any means be aliened by the Ideots or the Heires disinherited b 17 Ed. 2. Brit. 167. Stan. Prerog c. 9. Bract. l. 5. trac 5 c. 20. n. 1. Dyer 102. Coâ— l. 4. 126. Fleta affirms c l. 1. c. 11. that anciently Ideots were under the custody of their own Lords But that for the many Exheredations that hapned Their Guardianshipp was conferred by Parliament upon the King yet with this Proviso that the Lords of the Fee and those whom it concerned should loose nothing which was their due Either for Services Rents Releifs of their right of Guardianship till they come to full age according to the condition of their Fee 2. So also where it happens that any one who formerly had both memory and understanding becomes Non compos mentis as some are who have Lucida intervalla The King shall take care that the Lands and Tenements of such shall be kept without waste or destruction And that he and his Family shall live competently and be maintained out of the profits of the same And that the Remainder of their profits shall be reserved for their use So that the said Lands and Tenements shall not be by any means alienated within the said time nor the Revenues appropriated to the Kings use and that if he shall happen to dy in such a condition that then that said remainder of the said profits to be disposed of by the Ordinary for the good of his Soule d 17 E. 2. c. 10. Bract. l. 5. tr 5. c. 9. n. 7. Dyer fol. 25. n. 164. Cook l. 4. 127. 3. Those who are naturally deaf and dumb or labour under any perpetuall disease according to the opinion of some are necessarily to have Guardians e Bract. l. 5. tr 3. c. 6 n. 6. tr 5. c. 18. n. 1. c. 10. n. 1. 4. Infants are not forced to receive Guardians against their will except by reason of their Fee or any of the causes before mentioned or in case of Suits in Law And in the latter case oftentimes there is not only the next of Kinn assigned to assist the Infant in acting but a Guardian likewise to afford him help for his defence f West 1. c. 47. West 2. c. 15. F. B. f. 27. 5. Notwithstanding which no man as Guardian to an Infant shall prosecute for him or receive an Action without warrant but another may as his Kinsman commence an action for him without express warrant g Id. ibid. nor can an Infant disclaim that Guardian who prosecutes an action for him as being next of Kinn h Id. ibid. 6. An Ideot born is not received to prosecute or defend in any action by his Guardian or next of kinn but is required â—lwaies to be present in his proper person i F. N. B. fol. 27. g. Of the Security which is to be given by Guardians TIT. XXIV HE that is constituted sole Tutor or Guardian by the Magistrate or Ordinary â—s bound by our Law to put in security But â—efore he is admitted to his Office he makes â—ath to administer all the affayres of his â—ard to his profit and benefit to give a true â—nd faithfull Inventory of all his Goods â—nd to exhibite it by a certain time accorâ—ing as the Judge shall appoint as also to â—ender an exact and true account of his Office when it shall be required from him â—esides all which he is to finde fit and able â—â—reties joyntly with himself and severally â—y themselves to become bound for his true â—nd faithful administration of his Guardianâ—hip Of the excuses of Guardians T IT XXV OUR Lawes speak nothing of the excuses of Guardians because no one is puâ—… upon this Office against his Will Of Guardians which may fall under Suspition TIT. XXVI OUR Lawes are very carefull in pâ—… of trusting Guardians For he that give Estates to divers whereof some are of agâ— and some Infants may lawfully appoâ—… those which are of age to be Guardians oâ— the Infants but this will not stand in câ—… there be any cause of suspition that they wâ—… contrive the death of the Infants but suspâ—…tion is not admitted if the gift be made tâ—… Father or Mother or their lawfull Issue bâ—… it is otherwise where it is to Brother or Uncle or Nephew because of the right discending a Bract. l. 2. c. 11. 1. They who are Guardians by right oâ—… their Fee so long as they have the custodâ—… of the Land are bound to maintain and reâ—aire all
feodaâ—â— for he is the first of a new Family who yeiâ—â— Homage and Fealty c Lit. l. 2. c. 7 ancient Fee is who the Feodary and his Ancestors time out 〈◊〉 mind have held such a Fee and here the Fâ—â—dists d Id. ib. new terms tit Hom. Auncest place a Medium between these two 〈◊〉 paternal Fee which comes by four degreese Discent and they define that to be the aâ—cient which discends from more e Duar. com in cons feod c. 4. n. 10. 10. Fiftly Fee is divided into ecclesiasâ—â—â—â— and Laick or Seculer Ecclesiastick is thâ— which is possessed either by Ecclesiastick persons or which belongs to Churches 〈◊〉 that which is held by Lay persons and cannâ—â— be possessed by Ecclesiastick and indeed 〈◊〉 Fees as with us laick unless they become â—â—ther by some speciall grant from the King which we call giving to Mortmain f Mag. Char. c. 36. 18 E 3. Stat. 3. c. 3. 15 R. 2. c. 5. Pol. Virg. l. 17. Eng. Hist 11. Sixthly Fee is distinguished 〈◊〉 Masculine and Feminine Masculine is thâ— which is given to the Feodary and the Heiâ— Males of his Body and of this kind 〈◊〉 those of Dukes Marquesses Earles Viscounts 〈◊〉 Barons for the most part Which 〈◊〉 defect of Heirs Males are extinguished 〈◊〉 return into the supremacy from whence â—â—ey Issued but these are at this day rather â—itles of Honour then Fees in regard they â—re for the most part conferred without 〈◊〉 â—emenine is that which may discend to â—â—e â—â—male Issue as when it is given indefinitely 〈◊〉 the Feodary and his Heires and so that or default of Heires males it may come to â—he females and their Issue g Bract. l. 2. c. 34. l. 1 c. 8. n. 4. 12. Lastly Fee is either pure or simple or â—onditionall Simple is that which is held 〈◊〉 a simple and perpetuall Right to the Feoâ—ary and his Heires for ever Conditionall 〈◊〉 that which is granted to the Feodary and â—uch or such Heirs for default of which it reâ—urns to the Donor and his Heirs and thereâ—ore he that hath Lands given to him and his Wife and to his Heires begotten of her in â—ase she dy without Issue before him is called â—enant in tail after hope or possibility of Issue â—xtinct For this kind of Fee with us is called Fee-tail comming from the French word Tallier to cut part or divide as if we should say a Fee by some means severed or diminished h Lit. l. r. c. 1 1 Instit Jur. com c. 11. 13 13. And this kinde of Fee is double viz. Taile generall and Taile speciall Generall Taile is where a Fee is given to the Feodary and the Heirs of him lawfully begotten or to be begotten for in this case the Children of either Wife whether first second or third shall inherit speciall Taile is where a Fee is given to the Feodary and his Wife and to the Heirs of either of them l Lit. ib. Inst Jur. c. 12. West 2. c. 1. or according to some when it is given to him and his Wife and one Heir of their Bodys lawfully to be begotten and one Heir of that Heâ—â— only m Perk. 171 but this whether it be properly to be stiled a Fee for want of perpetuity may 〈◊〉 be doubted 14. Now a Fee is not limited to one Fâ—odary but may be possessed by more so thaâ— they are called Partners Joynt-Tenants 〈◊〉 Tenants in Common n Lit. l. 3. c. 3 Inst Jur. com c. 15. Partners are either by Law or custome by Law are Sisters Co-heires because the Heires Males being dead they equally succeed their Parents in the Fee o Id. c. 1. 3 by custome are Brothers in maâ—â— Counties especially in Kent from the Custome of Gavâ—lkind called so from the equality of apportioning the Inheritance p Id. c. 2. Joynt-Tenants are they which hold Lanâ—â— or Tenements by one and the same Title but not hereditary Tenants in common 〈◊〉 those which possess Lands or Tenements 〈◊〉 indiviso by divers Titles as in case one Co-Heire sells her part to a stranger he is not Joynt-Tenant with the other Partners but is called-Tenant in common q Id. c. 4. Inst Jur. com c. 15. 15. A Fee with us is not only of Corporall things but incorporall also for the custody of a Forrest r Vid. N. b. f. 6. Dyer f. 30. n. 209. Prison s Id. f. 41. or County t 28 Ed. 1. Stat. 3. c. 8. may be granted to one in Fee and the same may be said of an annuall Rent u Vid. N. B. foâ— 8. and of an advowson severed and not appertaining to any Mannor which we call an Advowson in gross w Lit. l. 1. c. 1. Bro. tit Tenures 105. now there are many services pertaining to a Fee which we shall mention in the next Chapter 16. There are belonging even as it were to the very nature of Fees Fee farm free farm and free Tenement Fee farm is a Tenure of Lands and Tenements granted to any one and his Heirs for a yearly Rent which equals the third x F. N. b. fol. 210. b. or at the least the fourth part y Old Tenure ver Fee farm of the true value without any other Services then what are expressed in a Charter of Feoffment z West part 1. symb 463. some affirm that a Fee farm can only be granted for the life of the Farmer and some will have it Fealty although not expressed a New terms of the Law in the Feoffment and others that reasonable releife b Bract. l. 2. c. 39. n. 9. is due of right from the Fee-Farmer to the Donor but the condition of this Tenure is such that if Rent be not paid by the Tenant for the space of two years then the Lord or Feoffer may recover the Lands to him and his Heires upon his action 17. Britton makes free farm where Lands and Tenements are so given that the nature of Fee by Feoffment is changed from Knights service to certain annuall Service so that there is neither Marriage nor Releife requirable nor any other service expressed in the Feoffment c Brit. c. 66. but I do not remember that I have read this in any other Author 18. Free Tenement or free-hold is where Lands and Tenements are held only for life of the Tenant and such a Tenant is said to hold In Dominico suo ut de libero Tenemento d Dyer f. 221. n. 19. f. 153. n. 10. But if it shall be said that Fee is naturally a Free-hold I shall not deny it only must add that it is also somewhat more because perpetuall e Inst Jur. com c. 10. Lit. l. 1. c. 6. Bract. l. 4 tr 1. c. 37. but of that Free-hold which is meant here there are two kinds One which is for tearm of life even by the very custome and Law the
5 c. 25. Flet. l. 6. c. 48. Dier fo 224. n. 29. but in regard the thing taken is also received the acquisition is not to themselves but to the King as we have said nor finally can persons uncertain as the Heirs of one that is living y Perk. grants 52. Plow 345. Or the first-born of any one who at the time of the gift hath not Children z Perk. ib. n. 54. Dier fo 274. n. 43. but a possession to A. the remainder to his Heirs though uncertain is good a Coo. l. 1. Arâ—bors Case f. 66. he also who is wholy unfit and unable to execute an office in any of the Courts of Justice is uncapable of receiving the said Office b Dyer fol. 151. n. 1. 14. Now all things whatsoever may be given save those things which can no way be possessed those are things sacred and Religious or as it were Sacred and those are a Free-man and that which appertains to the Kings Treasury which make the very Crowne and belong to the Publique profit c Brac. l. 2. c. 5. n. 8. 13 14. Brit. d c. 34. Flet. l. 3. c. 6. To which also some adde the Walls and Gates of Cities d Flet. ib. But at this day there scarce seems to be any liberty appertaining to the Crowne or Pâ—erogative in the Supremacy which may not by Charter be granted to a Subject e Kitch fol. 30. b. 15. I cannot give the Right which I have in a thing which is in the possession of another to a third person Yet I may â—emit it or as we say release it to the Possessor by my writing f Perk. ib. 85 86. Nor can any one give an action which he hath to any thing as we have said before g Sup. cod except the King h Dyer fol. 30. n. 208. or to the K. i Bro. chose in Action 4. yet one may give it to the party obliged k Perk. ib. 85 86. A man cannot give the reversion of an Office Eo Nomine nor can any but the King give under the name of the Office l Dier fol. 259. n. 18. 16. Now that a Donation may be valid there are other things required It ought to be free and not compulsatory nor extorted by force or feare m Brac. l. 2. c. 5. n. 8. 13. Brit. d. c. 34. There ought also to be certainty in a Gift for that there can be no Donation of a thing uncertain unlesse it may be some meanes be reduced to Certainty n Perk. ib. 81 86. Plow fol. 6 7. 12 13. There ought also certain words to intervene to a congruous Gift o Brac. ib. n. 12. as to a Bargain p Id. ib. Dier fo 71. n. 10 11 and that there be a joynt consent as well of the Donee as of the Donor q Brac. ib. n. 12. Dr. Stu. l. 2. c. 33. And that there may be no Error in the thing given r Brac. l. 2. c. 5. n. 12. Flet. l. 3. c. 7. nor fraud s Id. ib. not prejudice to a third person t 13. Eliz. c. 9. Yet a false or pretended cause adjoyned to a Gift doth not vitiate or injure it u Flet. l. 3. c. 6. 17. And here also there ariseth a difference amongst Donations for that some may be by word some not without Writing or Deed as we commonly speak w Brac. l. 2. c. 5. n. 3. all Chattells for the most part either reall or personall may be given by word x Per. grants 7. unlesse they be given by a Body politick whose Seale iâ— necessary in every Alienation y Id. â—od 64. If any one in Knights service be Guardian of Body and Lands he may grant the Custody of the Lands or the profits by word only which some affirme also as to the body or person of the Heir z Id. ib. 60. though it be denyed by others for this reason That the transferring of the Body doth not consist properly in the delivering possession a Id. ib. No man can grant Lands which one hath in possession to another either for life or for ever without a Writing but for yeares he may b Id. eod 61. Corn which is but growing may be granted by a Nude parolâ— and that by Tenant in Tail although he dye before the Doâ—ee hath severed it from the land c Id. eod 57. which notwithstanding is otherwise in fruits of Trees growing upon the Land d Id. eod 59. And the reason of the differenceit may be is because Corn cannot grow without the industry of man but trees by nature but Tenant in Fee-simple may give even such Trees by his word only e Id. eod 58. because he hath a larger power then Tenant in Taile And lastly Lands and Tenements may be given amongst those who are living by word only f Id. cod 62. But in case of Death not without a Will in writing g Seetit of wills c. 18. Incorporall Rights are hardly given without Deeds as wee call them such as yearly Rents h Dier fol. 139. n. 57. Dr. Stu. l 2. c. 16. fol. 80. Common of Pasture an Advowson villain in grosse or the reversion of Lands after the death of the present Possessor i Perk. gr 61 Plow fol. 150. Of which nature also are Tithes according to the opinion of some k Perk. ib. 62. Plow 233. but a Rectory with it's Tithes may l Bro lease fol. 15. 20. to which may be added the Right of Guard and Marriage m Dier fol. 370. n. 57. 19. If a Gift be in all things compleat it ought to be confirmed by Livery or something parallel n Brac. l. 2. c. 5. n. 12. 17 18. Inst com c. 21. Lit. l. 1. c. 7. Flet. l. 3. c. 2. 9. Dier f. 49. fol. 91. Now how Livery and Seifin is to be we have spoken else-where 20. There are three kinds or species of Donations in case of Death One which is made meerly upon the thoughts of Death when there is no feare or danger of Death â—igh Another when the party being moved with the imminent feare of present Death so gives that the Gift immediately becomes the Donees The third when one being prickt with the danger gives out so that the gift is forth-with the Donees but after his deceale o Brac. l. 2. c. 26. Flet. l. 2. c. 57. What persons may alienate and what not TIT. VIII THis Chapter is so near the other that we must necessarily repeate many things which we mentioned there But the word â—â—lienating being more generall then giving those things which we shall set downe heâ— have a more universall use It happens sometimes that he that is Oâ—ner of an Estate cannot alienate it The King cannot alienate the ancient Mannâ—â— annext to the Crown but every King is â—â—liged to revoke the alienations of the
upon their denyall then of any two honest men who are obliged to take true and faithfull Inventory of all the Goods and Chattels Moveables Immoveables which the Party deceased had at the time of his death and to write all and singular the said Goods justly apprized in 2. Charters or Tables indented The one to be reserved to themselves the other to be delivered to the Ordinary But if the Testator had appointed any of his lands or Tenements to be sold the money or profits thence arising are not to be put into the Inventory c 21. H. 8. c. 5. Swinb part 6. Sect. 9. 2. But the Heirs are obliged to satisfie the Debts of their Ancestors which the Chattels will not suffice to doe d Glan Brac. ubi sup Yet if the whole Estate of the Testator would not suffice to pay Debts then the Kings Prerogative excepted there used in former times to be a defalcation every where e Brac. ib. 3. And even at this instant the Law is that Legacies are not to be paid before debts be satisfied for in such cases the Executor is bound to pay the Creditors out of his own Estate f Dr. Stu. l. 2. c. 11. Bro. Execut. 116. Perk. 488. yet is hee not tyed to pay every one that demands a Debt but those only against whom the Testator had he lived could not have waged his Law g Bro. ib. 79. 87. 127. 163. 172. Dr. Stu l. 2. c. 11. Plo. 181. Dyer fol. 23. n. 144 145 fol. 80. n. 53 54 55. 4. The ancient Law seems to be somewhat changed as to the priviledg of Creditors Yet even now it seems that the Executor may in the first place allow moderat Funeral charges and then satisfie Creditors according as the Law prescribes and of those the King is first by his Prerogative h Mag. Char. c. 18. Next him those to whom the Testator was obliged by Statute-Merchant or Recognisance In the third place those who have Judgments against the Testator i Swinb part 6. Sect. 16. Fourthly penall Obligations k Bro. ib. n. 88. 172. And of these those have priority whose dayes for payment are lapsed l Dyer fo 80. n. 54. and of those if there be many they who sue first But if they commence their suits together Or that dayes of payment be not yet come then it is in the power of the Executor to gratifie whom he pleaseth Next to penall Obligations follow simple Bills m Swinb ubi super as wee call them And lastly Contracts without writing against which the Testator could not wage his Law As Servants Sallaries and Rent of Lands or Houses whereof the Testator was Lessee for years or life and the like n Bro ib. n. 33. 87. 127. 163. But as for made Contracts Executors are not obliged to pay them o Id. ib. Yet according to the opinion of some these have their remedy in an Action upon the case upon a promise of the Testator p Termes v. Execut. 5. If a Creditor be made Executor hee may in the first place satisfie himselfe after which he is bound to pay the other Creditors out of the residue q Plow fol. 185. 6. If after Debts paid there remaines enough to satisfie Legacies every Legatee may of right claime his whole Legacy Otherwise only according to the proportion of the Estate and the quantity of all the Legacies Yet so that the Executor may first deduct charges bonafide expended and desperate Debts But under the notion of lex falcidia we have not any thing nor is there any thing in that nature required from the Office of a Judge But as to those Goods which are not devised they are convertible to the use of the Executor r Perk. 525. 7. Executors of Executors are obliged to the payment of the first Testators Debts unlesse his Goods appeare to be fully administred by their Testator s Dyer fo 174. n. 21 22. 25. Ed. 3. Stat. 5. c. 5. Of those Trustees which the Romanâ— called Fidei Commissarii Haeredes ad sanatusconsultum trebellianum TIT. XXIII THese Inheritances are out of use with us yet those Trusts are something parallell to them by which wee are used to give our Lands to Strangers to the use of us and our Heirs or to private persons to the use and profit of a Body politick But those inventions of Uses being injurious to the Prince and to the Lord of the Mannor a Coo. l. 1. Shudleys case fol. 123. are by Acts of Parliament either wholly taken away or at least for the most part altered b 1. R. 3. c. 1. 4 H. 7. c. 7. 27. H. 8. c. 10. Of things left Per fidei commissum TIT. XXIV OF those things which were by the Romans termed Fidei commissa excepting those which are appointed to the next Title we have no mention in our Law they being left wholly to the Civill Lawes definitions Of Codicills TIT. XXV THe terme Codicillus is seldome used with us wherefore in this we only follow that which we borrow from the Civill and Common Law unlesse it containe either a Fee or a Free-hold In which cases they are to be proved only before an Ecclesiasticall Judge and to receive their Interpretation according to the Lawes of the Land The End of the Second Booke THE Third Book of the Institutes of the Lawes of ENGLAND Of Inheritances which are conveighed from such as dye even Intestate TIT. I. THERE is also another way of gaining Dominion which is by Succession and which happens to all Heirs of such things whereof their Ancestors dyed seised in Fee or whereof they were at any time seised as of Fee by Right of Inheritance without having alienated them And this Discent ought to be to the next Heirs Males or Females in a direct or transverse line Wherefore Right like all heavy things falls downwards direâ—â—ly or transversely nor doth it ever ascend 〈◊〉 same way by which by the death of the â—ncestor it discends yet doth it collaterally â—scend sometimes for want of Heirs to whom 〈◊〉 may discend a Glan l. 7. c. 1. Brac. l. 2. c. 29. n. 1. Dr. and Stu. l. 1. c. 7. Flet. l. 6. c. 1. and c. 2. 1. A Right discends to the Heir whereâ—â—ever born whether in the womb or beyond 〈◊〉 on this side the Sea and that whether within or without the Dominions of the King Provided his Parents be the Kings Leige People and that the Mother went over Sea with her Husbands leave nor can any man create to himself an Heir because God only makes them and because Haeres is not ab Haereditate but Haereditas ab Herede 2. Now Inheritance is a Succession to the whole right which the Ancestor deceased had in Fee upon what cause soever whether by Acquisition or Succession with Seisin or without and if by Seisin then at whatsoever he was
other Ornaments or Oxen either giving or promising hire such a care is required of him as a diligent Master of a Family would have which being had if the thing by accident happen to be lost hee is not bound to make restitution unlesse it be agreed otherwise Nor is it sufficient that he have such a care of them as of his own goods o Brac. ib. Dr. Stu. l. 1. c. 23. l. 2. 6. 4. Flet. l. 2. c. 59. 5. Letting of Lands and Immoveables is at this day the greatest occasion of suits of all others wherefore it is requisite that wee should speak more largely in this place of these particulars Every one may make a lease of Lands who holds them in Fee whether he have Fee-simple or Fee-taile and whether he be possessed in his own Right in the Right of his Wise or of a Church p 32. H. 8. c. 28. which is also true in those who hold as Partners q Lit. l. 3. c. 3 So also Cestuy qui use r Id. ib. c. 5. a body politick may make a lease but not without writing s Bro. lease 32. 42. As also he who hath a Free-hold t Id. ib. 4. or a Lease provided he exceed not his term and Guardians until their Pupils and Wards come to age 6. He that hath a Fee-simple in his owne Right may make a lease for as many years as he pleaseth provided it be not to a Body politick lest by exceeding it seem a Demise in Mortmaine u Bro. ib. 47. He who hath a Fee-tail in his owne or Fee-simple in anothers Right viz. either in the right of a Church or of his Wife is tied a little more strictly for that they cannot lease Land by a new lease which is already let for above the term of a yeare Nor any which were not usually wont to be let within the space of 20. yeares past nor those for a lesse rent then they formerly were let for or for a longer terme then 21. years or three lives and that without permission of waste To these also may be added that he who hath a Fee in right of his Wife may let it joyntly with his Wife but hath no power to alienate the Rent but it shall come to the right Heir of his wife after her decease w 32. H. 8. c. 28. 7. Arch-bishops Bishops cannot let the Lands of their Churches for above 21. years or 3. lives to be accompted from the beginning of the lease nor for lesse Rent then it formerly went for nor for lesse then formerly it used to be let for x 1 Eliz. not printed Dyer fo 145. n. 65. 8. Masters and Fellowes of Colledges Deans and Chapters Wardens of Hospitalls and all Ecclesiasticall persons are prohibted y 13. Eliz. c. 10. to let their Church or Colledge Lands for more then 3. lives or 21. years to be accompted from the beginning of the lease nor this without their private Statutes permit Nor so unlesse the lease which is on foot if there be any be within three yeares of expiring z 18. Eliz. c. 11. Besides the Colledges of both Universities as of Eaton and Winchester are obliged to take the third part of their Rent in Corn a 14. Eliz. c. 11. Yet are they not prohibited from letting freely those Houses which they have in any City Burrough Towne corporate or publique Market Town with the Lands belonging to them provided they exceed not ten Acres according to the Common Law of England if it be not contrary to the private Statutes of their Colledges b Id. ib. 9. It is not without reason questioned whether a Prebendary of a Cathedrall Church may lawfully let part of his Prebendary procuring the said Lease to be confirmed by the Dean and Chapter without any consent of the Bishop the Bishop being both Patron and Ordinary of every Prebendary but continuall and daily Custome hath rendred his consent unnecessary and uselesse c Dyâ—r fol. 61. n. 30. 10. Those who have Benefices cannot make a Lease for any time longer then they reside there the liberty of being absent 80. dayes every yeare being alwayes permitted them unlesse by the Lawes they are permitted to have two In which case in regard hee cannot possible continually reside at both he may let one to his Curate d 13. Eliz. c. 20. 11. Lands and Tenements are often let for the life of the Lessee e Lit. l. 1. c. 6. or anothers life f Id. ib. or for more lives g Id. ib. or for terme of years h Id. ib. or lastly for a life and afterwards that being expired for a term of years i Bro. leas 51. and that either by writing or without k Littl. ib. nor by Indenture only but by Deed-Pol l F N B 148 12. But if any one letteth his Lands by writing or without not mentioning any tearm but giving the Lessee possession He is presumed to let them for the life of the Lessee m Lit. l. 2 c. l Plow 152. 13. There is no need of giving possession to a Lessee for years for he may enter by vertue of his Lease unlesse besides the Lease there be a Grant of a Remainder to another for life or in fee in the same Deed n Lit. l. 1 c. 7. for if a man makes a Lease of lands for years though he were Lessee before yet he doth rightly take possession of the said Lands by this means o Id ib 14. Lessor is bound to warranty to the Lessee for the Lessee being ejected before the terme ended may have his Action of Covenant against the Lessor p F N B fo 145 M Dier 328 n 8 and that whether he be disseised by the Lessor himself or by a more ancient Title nor only he but his Assignee q Id. ib 15. But if a third person eject him against Right he shall recover damages against the Ejector r Id ib unlesse the Lessor agreed by Indenture that in case the Lessee were ejected he should have his action of Covenant against him s Id id 16. Lessee for life by Indenture in regard he hath a Free-hold shall not have an action of Covenant against the Lessor in case he eject him before his tearm ended but an Assise t Id. ib. 17. Where a Lease is but for a year and so from year to year the Lessor cannot eject the Lessee at the end of the Tearm nor can the Lessee go out against the will of the Lessor For whosoever of them would recede from the agreement ought to give the other warning u Bro. lease 13. 22. 18. Lessor cannot remove his Tenant at Will so as to hinder him from taking the profits of his Seed or Corn sowen or without granting him convenient time to remove his Houshold stuff because the time is well enough force-seen and known to him
Lit. l. 3. c. 4. unlesse the Donees be a Body Politick and receive under that notion or at least one of them in which case they are tenants in Common g Id. ibid. 3. Partners and joint-tenants differ two wayes the former being joyned by necessity and are called Partners meerly in respect of their inheritance Joint-tenants have their name either from purchase or Gift and are joyned together by their own Wills and not by necessity h See the former quotations 4. Thereare also some who are Joint-tenants only for life and yet have severall inheritances as where Lands are given to two men or two women and to the Heirs of their bodies in this Cafe so long as they live they are called Joint-tenants for one of them having Issue and dying his fellow shall have the whole during his life who also if he shall leave Issue and die his Heir with the Heir of him that died before shall hold the said Lands in common i Iâ—st c. 15. and if one of the Donees die without Heire his part for defect of an Heire shall after the death of his fellow revert to the Donor k Littl. l. 3. c. 3. 5. Tenants in common are they who hold the same thing as Lands or Tenements Chattells personall or reall jointly but by severall Titles l Id. ibid. c. 4. for if one parcener alienate or give his Right to a stranger the stranger and the rest are Tenants in Common though the rest amongst themselves enioy their former appellation 6. Wherefore Tenants in Common differ from partners in this that these do not possesse any thing in Common by Right of inheritance as do the others nor are they ioyned by any necessity and from Joint-tenant in that they hold a thing in Common by divers Titles or at least the Tenants are naturally so unequall that they cannot admit of any coniunction such are bodies politick among themselves or with single persons m Id. ibid. 7. First for partners these though they die before Partition transmit and leave their part to their children if they have any otherwise to the rest of their fellows n Id. ibid. c. 2. Inst c. 14. 8. Partition may be made either by mutuall consent o Dier fo 179. or if some refuse by the power of the Judge for he who desireth to have his part divided may have a Writ of Partition by which he shall compell the rest to divide p F. n. b. 61. K. 259. C. 260. B 261. C. but if one woman Partner entermarry and having Issue dieth the Husband being Tenant by the courtesie may compell them to a Partition if it be not already made q Littl. l. 3. c. 2. 9. Littleton doth very fully describe the manner of making Partition both by consent and compulsion but this is rather matter of fact then of Law that onely is observable that if Partition be made by consent one or more of the Partners being under age it may afterwards be corrected wheâ— they come to full age provided they do not confirm it when they come of age by receiving the profits r Id ib. and if it be a Fee-Tail although all be at age at the time of the Partition made yet their Heirs may disagree to 〈◊〉 s id ib. so also if an unequall Partition be made by the Husband of co-Heirs after Marrimony is dissolved either of them may disagree t Id. ib. F. n. b. 62 E. 10. If after Partition any part of either oâ— the Partners Estate lye evicted by Law He or she whose part it was may compell the rest to a new Partition and recover a lawfull part in those Lands which the rest hold u Little ib. c. 2. 11. If there be an Advowson in the inheritance and the Partners will not consent in the Presentation of a Clerk then the eldest shall present in the first vacancy and the rest according to their Case and to this they may be compelled if they refuse to agree and every one hath therr lawfull remedy if they be hindred from presenting in their turn w F. n. b. 34 T and 36 C. 12. If there be two Joint-tenants of a Fee simple withi a Burrough where Lands and Tenemenrs are divisible by Will and one of them devises his Right to a stranger and dies this Devise is void and the reason is because that part which by the Law at his death comes unto the other by the Right of â—â—crease and out of Descent cannot any way 〈◊〉 conveighed to another by a Will which â—â—es not its Operation till the Death 〈◊〉 the Testator from him that claims the â—â—ole x Littl l 3 c 3 13. Two take a Lease joyntly for years â—â—th this condition agreed to between the â—â—ssor and them that if the Lessees die beâ—â—â—e the Terme ended the Lease shall be â—â—id The Lessees make Division and one 〈◊〉 them alienateth his part and dies the 〈◊〉 Lessor cannot reassume the part of him â—â—at died but the Alience shall hold it duâ—ing the life of him that surviveth nor hath â—ccupation in this Case any force but it two â—â—ke a Lease for theit lives and make parâ—â—tion either of them dying his part immeâ—iately reverts to the Lessor y Dier fo 67. c 18 14. Two are Joint-tenants for life one of which lets out his part by Indenture to a third person for years reserving a Rent from it to him and his Heirs and dies the question is whether by his death the ritle did wholly vanish or whether the surviving Joint-tenant ought to hold the whole for his life if he ought then whether he were left to his own libertty notwitstanding the Lease of his fellow or to take onely the Rent reserved upon that moity and it was adiudged by the Justices that the surviver ought to hold the whole Lands for life and that free and disobliged from the others Lease z Id fo 178 n 5 15. And this is the difference between Joint-tenants in Fee and Partners that neither of the Donees can charge his Lands whiâ—â— he holds pro Indiviso with any Rent longâ—â— then for life but a Partner may and the râ—â—son is it cannot preiudice his fellow or 〈◊〉 Heir who derives his Right not from hiâ— but from the Donor but Partners succeedinâ— one the other for defect of Heires may froâ— one anotherr derive their Right a Littl. ib. c. 3. 16. Which notwitstanding in letting 〈◊〉 clearly otherwise for if one of the Doneeâ— who holds pro Indiviso to him and his Heiâ—â— let out his Right for a compleat Term 〈◊〉 dies the Lessee after his death may retain 〈◊〉 during the Term nay he may enter into tâ—â— Lands although they were not delivered unto him in the Lessors life time or anâ— wayes possessed by him b Id. ib. and the reason 〈◊〉 diversity between a Rent Charge and a Lease is iudiciously given by Littleton
non-appearance they are out-law'd z Lambert but if they be apprehended they are in some cases committed to prison without any hope of being released untill Judgment past a 1. West c. 15. 23. H. 6. c. 10. 1 2. Phil. and Mar. Lambert l. 3. c. 2. pa. 334 but if it be only for a sleight suspition of Felony or for Petite Larceny the Sheriff may take Baile for appearance and is compellable upon his refusall b V. F. n. b. fo 41 9. If the Offence be not capitall the Sheriff is commanded to cause the Defendant to appear at a certain day to answer certain Articles and if he come not the Sheriff is to make his return and certefy the Justices whether the party have sufficient Goods and Chattells or whether he have nothing For if he have his Goods are to be distrained till he come if not then Process issueth forth untill he be out-law'd c Lamb. in supplement process 10. There are other particuler waies of proceeding in causes criminall expresly appointed in particuler cases which are to be collected out of such Statutes wherein they are injoyned are prescribed d Lamb. l. 4. c. 8. p. 505. 11 There are also certain cases in which the Plaintiff upon his own Authority seiseth the Goods of the Defendant and requires him to come to make an extrajudiciall satisfaction or at least to come to Judgment As for Rent which is due either as a Service e Dr. Stu. l. 1. c. 7. V. F. n. b. fo 42. or as charged f Lit. l. 2. c. Release upon the Lands Of Perpetuall and Temporall Actions which discend to Heirs and against Heires TIT. XII OF Actions there are some which are perpetuall and some which cease at a certain time for although Bracton asfirmes a l 3. tr 1. c. 3. n. 5. almost all Actions to be temporall for want of sufficient proofe yet this hapneth not so much from the nature of the Actions as from the difficulty of proofe 1. I call those perpetuall which cease only tacitely through continuall forbearance and which have not any set time expresly allotted for their continuance Of the second sort there are many which arise both from the common Law and Statutes For these if they be not prosecuted within the time limited do cease and fall For example the Owner of a Park hath an Action against any one that hunts in his Park if he sue within a year and a day but if he let that time passe the King only may prosecute the Action b b I Westm c. 20. 2. But there are some which are so perpetuall that no process of time can extinguish them As those which by the Law of Nations are inherent in the Crown by reason of the Kings Priviledg and Prerogative As of things which have no Owners Also of Things Liberties and Dignities which appertain to the Kings Crown and in which cases no time occurs against him if he require them Where he hath no need of proofe but may recover without proofe unlesse the party impleaded may have a Warrant i. e. a speciall liberty granted by the King because he makes no defence from prescription c Bract. l. 3. tr 1. c. 3. n. 5. 3. There are also some so purely temporall that when the person dieth they neither discend to his Heires or Executors nor do they lye against Heires or Executors As those which are penall for a Penalty ought not to be extended to any other then the Authors nor to proceed further then the crime extends it self d Id. c. 2. n. 5. l. 4. tr 1 c. 20. n. 11. Dr. Stu. l. 2. c. 10. 4. Nor can Heires or Executors sue or be impleaded from Covenants in writing unlesse there be particuler mention made of them in the Instruments of Covenants Now what Actions are temporall from the Statutes of the Common-Wealth we have shewn before e Lit. uses Prescriptions Of Pleas and Exceptions TIT. XIII HItherto we have spoken of Actions it remaines that we speak something of Pleas for Pleas are in the place of Actions and in respect of Actions are tearmed Pleas or exceptions in regard that one impugns the other and as those who so are armed with Actions are prepared as it were with Swords so the Defendants on the other side are guarded with Pleas as with sheilds and bucklers a Brac. l. 5. tr 5. c. 17. Fleta l. 1. c. 32. 1. Now an Exception or Plea is as it were the cutting asunder of an Action by which an Action is destroyed and defeated b Id. ib. c. 1. Fl. l. 6. c. 36. 2. An Action is taken away by the Plea of Per metum dolum as if one pleads such an Obligation to have been extorted from him Per metum dolum c Id. l. 3. tr 1. c. 2. n. 13. Brit. c. 28. fo 66. so also by reason of not counting or telling Money As if a man promise Money to another from whom he expects to have the same in a small time counted to him he may have this Plea against him afterwards when he shall demand it yet it seems that this Plea wil not prejudice an obligation in writing d Brac. l 3. tr 1. c. 2 n. 9. unlesse the Defendant can also shew an Acquittance in writing e New tearmes Acquittance also by Contract as if one first covenant that he may demand and then that he may not demand f Brac. ib. or if one doth make satisfaction and recompenceth any way a trespass committed by him and so takes away the cause of Action g New tearmes Record so also by an oath according to our ancient writers viz. When an Oath shall be brought or related and afterwards â—worn h Brac. ib. and lastly by pleading a former â—udgment as if the Ancestor of the Plaintiff â—r any of his Heires lost the thing in Action â—y a Judgment in case of property as by a Grand Assise or by Battaile or by verdict of 〈◊〉 Jury upon whom they had put themselves i Id. l. 5. tr 5. c. 28. n. 7. 3. Of Pleas some are dilatory and some Peremptory k Brit. c. 29. Termes v. Barr Flet. l. 2 c. 54. and l. 6. c. 36. and of those which are dilaâ—ory some are Peremptory as to the Jurisdistion and dilatory as to the Action and not peremptory And in like manner some are peremptory as to the Writ and dilatory as to the Action l Termes v. Addition Flet. l. 4. c. 10. Sect. 1 2. and l. 6. c. 36. some Pleas also are generall as to all Actions and some speciall which are allowed only to particuler Actions For â—ll Actions have their proper Pleas according to the form of the Actions m Brac. l. 5. tr 5. c. 1. in the beginning 4. And there is a kinde of Plea which we â—all a waging of Law and
with the Husband t F. B. f. 78. G And if a Free-man marry a Villaine shee shall be free u Id. eod 8. But it is reported to be an ancient custome in Cornwall that if a Freeman took a Villain to wife to a free-hold and free-bed if they have Issue two Daughters the one shall be free and the othe villain w Brac. l. 4. tract 3. c. 13. n. 2. 9. There is a condition of servitude which is tearmed Substantialis For whosoever is a Servant is so a Servant as that he is nothing else x Brac. l. 1. d c. 6. n. 3. Brit. c. 31. Flet. l. 1. c. 3. d. 10. And there is lastly a certain condition like to Servants which are yet ingenious and freeborn To wit those whom we call Apprentices who are bound by their Parents or Governours to their Masters to learn Merchandising or other mechanik trades by Covenants y An. 5. Eliz c. 4. fol. 25. And these are in the power of their Masters during the time covenanted and make gaines not for themselves or Parents but for their Masters unless it be otherwise covenanted for a Covenant prevailes above Law z Brac. l. 2. c. 15. l. 5. tr 2. c. 3. n. 7. l 5 tr 3. c. 9. n. 12. These oblige themselves in many things and cheifly in these namely That for the time covenanted they will truly and faithfully serve their Masters conceale their secrets willingly obey al their lawful and honest commands That they will not commit Fornication within their Masters House or without that they will not goe away within their time nor be absent day or night that they will no ways damnifie him nor suffer him to be damnified in what they may help but that they will with all their might indeavour to hinder his losse or else fore warn him with all possible dilligence that they wil not inordinately imbezell their Masters Goods nor lend them to others without his command or special licence that they will not frequent Taverns unlesse to make bargaines and therin to serve their Masters That they will not to the preiudice of their Masters play at cards or dice that they will not intermarry or contract Matrimony with any woman during the said Term that they will not trade with their own or anothers Money without leave or license of their said Masters but that they will well and truly behave themselves in word and deed as a good and faithfull Apprentice ought to doe a Ne. b. Entr. Ver. coven in Apprent Of Free-born TIT. IV. A Free-man is naturall and free-born he is said to be free born who is free so soon as born whether born of two free-born or of a man free-born and a woman made free or of a single woman and a Freeman a Fortes c. 42 Flet. l. 2. c. 4. provided it be not within a villinage but in a free bed notwithstanding it be out of the state of Matrimony b Vid. sup tit prox par 4. in fine 1. So if of a Freewoman and a Villain out of Matrimony and it is sufficient that the Mother be frce at any time namely either 〈◊〉 the time of conception parturition or in the intervall notwithstanding that she become Villain afterwards because the mis-fortune of the Mother shall not prejudice the Infant in the Wombe c Brac. l. 1. c. 6. n. 5. Flet. l. 1. c. 4. Lit. l. 2. c. 11 2. So if a Free-man having Children doe in Court acknowledg himself a Villain Those Children which he shall have after such acknowledgment shall be villaines but those which he had before shall be free d Brac. ibi supra Of such as are made free TIT. V. THose are said to be made free who are manumissed from a just Servitude And they are called free men as being set free from servitude a Brac. l. 1. c. 6. n 6 Flet. l. 1. 4. Manumission is a giving of liberty that is a manifesting or declaring according to soule because liberty which is by the Law of nature cannot be wholly taken away by the Law of nations albeit it may be under a cloud b Brac. l. c. 5. n. 8. Flet. sup 1. Manumission is two-fold namely Expressed or tacite and implyed c Dyer fo 60 n. 23. and sa 266 267. â— 11. Manumission expressed is also double One which is by writing as when the Lord gives a Charter or instrument of Manumission to his Villain And another which is by fact and which was more used of old As when the Lord in the presence of his Neighbours laying his hand upon the head of his Villain shall say I will that this man be free and having said this letting him go out of his hands shall put him from him d Brac. l. 1. c. 5. l. 8. Jemn Ju. ver manum Erit c. 31. â—â— 2. Lambert in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 e fo 226. e Flet. l. 3. c 13. and l. 4. c. 11. describeth the ancient formes of Manumission thus If any one will make his villain free let him with his right hand deliver him to the Sheriff in a full County and he ought to quit claime unto him the Bond of servitude by manumission and shew him free Gates and wayes and deliver him free Armes viz. lance and sword and then he is free 3. Manumission implyed is when a Lord shall binde himself by obligation to pay a certain fum at a certain day to his Villaine or shall bring his action against him for any thing which he may challenge as his own or shall grant him a yearly Rent or make a Feoffment unto him of Land or by Deed grant him an Estate in Land for life or years or finally do any such action which we are not used to do but to freemen f Brac. l. 4. tr 1 c. 21. n. 3. f. 192. b. and c. 22 Brook Tit. villena spec Just n l. 2. des Weiss If a Villain becomes a secular Preist yet the Lord may claim him as his Servant and seise his goods g Spec. Just cod But if he shall enter into Religion it is otherwise because there he is dead in the eye of the Law h Lit. c. 2. c. 11. In what causes Manumission cannot be TIT. VI. THere are so few marks left at this day of servitude or of Villaines that it were to little purpose to prescribe a form of Manumission and therefore our Authors are silent in it But that I may add one word for conclusion in this place Manumission ought to be bounden within the same limits in which other lawfull Acts are So that neither an Infant nor one that is not Compos mentis nor one that hath no right may work any thing by it All other things unless any thing be done to defraud Creditors are left at pleasure Of the taking away the Law which was called Lex Fusia Caninia TIT.
by consent of their Guardâ—ans shall marry within the age of twelve b Lit. l. 2. c. 4. and here both Sexes have the same Laâ— that after marriage so had under age by designation of the Guardian They are no morâ— obliged to his arbitrement the bond of Matrâ—mony being dissolved by death c Brac. l. 2. c. 37. n. 6. Lit. l. 2. c. 4. And thâ—â— by an inequality of marrying them thâ— Guardian shall loose his ward and shall liable to satisfie the freinds of the ward so disparaged for so great a damage d Brit. c. 67. Lit. l. 2. c. 4. Instit Jur. com 24. 9. Heretofore when an Heir female was at â—ge and held of divers Lords in Fee it was sufficient for her in marrying to require the â—ssent of the next capitall Lord to whom her Ancestors had done legiance e Eract d. l. 2. c. 37. n. 6. but at this day she that is of age is not obliged to ask the conâ—ent of her Lord to marry f Brook tit Guard 7. 10. If the Heir of Tenant in Chivalry not being of that age at which by the Law he may consent to marry shall marry in his Fathers life time his Father being dead the Lord of the Fee shall have a Writ of Ravishment because it is in the power of the Heir to repudiate his wife when he shall come to that full age g F. B. 143. m. and a woman who holdeth of the King in this manner being thus married is at her own election when she shall come to age whether she will adhere to the former marriage or accept of such a Husband as the King shall tender h 17 E. 2. Stat 1. c. 5. 11. Those Widdows also which are termed the Kings Widdowes do make Oath not to enter marriage again without the Kings consent And if they do otherwise the King may by distress seise himself of those lands and renements which they have in Dower untill they or their Husbands shall pay such Fines as the King at pleasure shall impose i Slan Pâ—er c. 4. Glan l. 7. c. 12. Flet. l. 7. c. 23. F. B. 263 174. 17 E. 2. 1. Magna charta also doth affirm that common persons may exercise the same power over their Widdows k c. 7. And there is this reason given least the Kings Tenants should enter marriage with his capitall enemies l Fl. l. 1. c. 13 12. Whosoever shall steal or draw away anothers ward although he restore the ward afterwards unmarried or satisfie for the marriage shall for such trespass suffer imprisonment for two years And if he doth not restore the said ward but marries him or her and is not able to satisfie for the same he shal abiure the Realm or be imprisoned during life m Flet. l. 1. c. 13. 13. If any person above the age of fourteen shall draw away an unmarried woman under sixteen without consent of Parents or at least those who had the Gard of her he shall suffer two years imprisonment without Bail or at least be fined for his said offence according to discretion of the Star chamber n This power is now in the Chancery But if he shall defile her being so stolne away or any way contract marriage with her against the consent of her Parents or Guardians he shall be imprisoned for five years or much according to the discretion of the said Court. And if such woman being above twelve and under sixteen shall by her own consent marry with such ravisher she shall forfeit all and singuler those Lands Tenements and Hereditaments which at the time of such consent given she had either in possession Reversion or Remainder o 4 5 Phi. Mar. c. 8. Cook l. 3. Nut. Case f. 39. 14. Villaines are not to marry without consent of their Patrons p Lit. l. 2. c. 11. Also if a freeman shall take away ones native in marriage without the consent of her Lord although the Lord cannot take her from him yet he may have his action for the Ravishment of her q Idem ibid. 15. Women that marry noble men shall have the appellation and priviledges of noble persons for that dignity they derive from their husbands untill they shall again marry with common persons q Idem ibid. for by marrying they make themselves the same flesh with their Husbands r 20 H. 6. c. 6 but if it shal be demanded whether a woman more noble marrying with a man lesse noble or a common person may free her Chaplaines for non-residency according to the Statute in that case provided we 21 H. 8. c. 13. cannot answer without distinguishing For second marriages will not prejudice those which shee had during widdowhood But she cannot impart the same priviledge to them which she shall have after the second marrying because her nobility is extinct t Cook l. 4. Actons Case f. 117. Notwithstanding that it seems to be otherwise with those which are born noble and derive not their nobility from marriage u Id. ibid. for that such who draw their nobility from their Ancestors are more esteemed and honored with us then they which take it onely from their Husbands 16. If any come together against the leviticall Law we neither understand them man and Wife nor do we allow of their contracts marriage or Dower Their Issue gaining no other esteem then to be termed naturall w 32 H. 8. c. 38. Those only are said to be divorced by our Lawyers whose Marriages are nul'd for that there may be a seperation a mensa thoro and yet the Matrimonial bond remain unbroken x Term. Jur. verl Divorce 17. Those which are unlawfully begotten cannot possibly be made ligitimate But they are often made capable of Preisthood or exercising sacred functions by dispensation y Bract. l. A spurious Issue may by silence and patience be rendred legitimate as in case a Wife shall conceive by another man besides her Husband notwithstanding that it be apparent yet if the husband entertain such Issue in his Family and bring it up and call it as his Child he makes it his owne lawful Son and Heir which is equally true if he do not so call it expresly if he do not remove it and renounce it nor is it materiall whether the Husband be ignorant or knowing of it or whether he doubt for it shall be reputed his lawfull Heir because born of his Wife so long as it may be presumed that her Husband begot it And this may be said also of a supposed Issue for that often a common opinion passeth for a truth z Bract. d. l. 2. c. 27. n. 4 5. 18. There are with us two consequences and effects of Marriage The first that all moveable Goods which by us are tearmed personall Chattells which the Wife brings with her do presently passe into the husbands Patrimony without any distinction being thereby
as it were swallowed up nor can any thing be reassumed by the Wife surviving but her womans apparell and so of imoveables and realls if allened by the Husband in his life time but for those which are not alienated he being dead they shall return to the Wife a Plow 418. 4â—9 but if a Wife being Executrix or Administratrix to a former Husband marries a second and survives him she shall have all those Goods both personall and and reall which she brought unto him as possessed of by reason of that relation and office and which are not alienated by her second husband restored unto her without diminution b Vid. infra tit 11. par 7. The other consequence of Marriage is that lawfull or reasonable Dower under which notion she shall have the third part of all such Lands and Tenements which her Husband was seised of in Fee for her life c Flet. l. 5. c. 22. 27. An. 3. 6 Id. 6. in provis Dyer 140. but in case the husband shall happen to be attainted of treason or felony there the wife shall loose her Dower d 1 Jac. ses 1. c. 11. 12. Of Adoptions TIT. XI a Bract. l. 2â— c. 29. n. 4 5. BRacton in the place before mentioned calls silence and Patience in the case of adulterate Issue adoption which creates such Children being in our power free and legitimate I have also heard of that kind of Adoption amongst us which the Romans used But this seemes rather to be by private will and agreement of the persons adopting and adopted then by any Law for this is at our own election that we may give Lands purchased by our selves or which we have by discent unlesse they be given conditionally or as we tearm it by intail to whomsoever we please whether to one of our Kindred or whether it be to a stranger without having any relation to those Children which we have whence it is apparent that the custome which the Romans had of Adoption was either never received amongst us or else that it is long since as with the French wholy extinct b V. Equinarium Baronem in particula posteriori suorum comment super Instit hoc Tit. How and by what means Paternall Jurisdiction is dissolved TIT. XII WE have spoken before how paternall Jurisdiction is occasioned and constituted now we are to declare how it is dissolved and taken away And we must know that this is done three manner of waies By naturall death by civill death and by dignity or honour For if the Father in whose power the Son is dieth the Son remains at his own disposing although sometime in the custody of a Lord or the care of Freinds or Parents But the Grandfather on the Fathers side being dead the grandchildren are not in their own power but remain under the Jurisdiction of the Father if he survive the Grandfather and do not at all go out of his power as in the case of a Emancipation or Dignity a Bract. l. 1. c. 10. Flet. l. 1. c. 7. 1. So by a civill death as in case the Father be condemned for Felony committed or exiled But if he be banished but for a time he shal retain his Children under his power because whatever is his he shall injoy at his coming back b Id. ibid. 2. Paternall Jurisdiction is dissolved also by Emancipation As if a man discharge his Son from his family with any part of his Inheritance as it was the custome in former times c Id. eod for this kind is a kind of a civill death of the Son as is the entrance into Religion d 4 H. 4. c. 17 3. This power is dissolved also by dignity as in a case the Son be made a Bishop e Bract. ubi supra 4. But as this Bond of paternall power is not so strict with us as it was with the Romans so neither is the releasing of it by Emancipation so usuall For I finde nothing in our Lawes which hinders a son or daughter from disposing of themselves even against their Fathers consent so soon as they shall come to the age of one and twenty years It is most certain that they may then enter Marriage or Contract with any one and be no lesse obliged by a Contract then â—f they were threescore For this age with us is perfect and full maturity f Bract. l. 1. c. 10. n. 2. Lit. l. 2. c. 4. Of Wardships TIT. XIII OF those which are under the power or Jurisdiction of others there are some which are in the custody or protection of Lords some are under the care of Parents and Friends and some are not obliged by either as those which are at full age a Bract. l. 1. c. 10. num 2. 1. The word protection is not so frequent with us as Custody For as we have many Species of Law from the Normans so have we words also now they call him 〈◊〉 Guardian which the Romans tearmed Tutor or which was rather meant and comprehended under their appellations of Tutor and Curator together In which we imitate them in calling them Guardians 2. These Guardians are appointed sometimes by the Fathers will sometimes by the Law and sometimes by the Magistrate Foâ— where the Father hath only an Estate of Money or Chattells to leave to those Children which being under age are in his power he may commit the care and Government 〈◊〉 them together with the Legacies to any 〈◊〉 his Friends b Cook l. 3. case Ratcl f. 37 38. he also hath the like power with a Father who shall infeost an Infant iâ— Lawes for he may commit the Custody 〈◊〉 him according to his pleasure to whom 〈◊〉 pleaseth c Flet. l. 1. c. â— and what is here mentioned of Children born may be understood of Post humi Who they are that by Testament may appear Guardians TIT. XIIII WHosoever hath a Free administration and power of dispensing his Goods may constitute a Guardian by his will provided he be of perfect age and sound memory a Glan l. 7. c. 6. and this also may be performed by a Woman b Brit. c. 35. But if an Infant or one that is not Compos mentis be ordained he cannot be admitted untill the defect be removed c Swinb part 3. Sect. 10. 1. A man may constitute his own Villain or Native Guardian over his Children or anothers with the permission of his Lord but it is worthy consideration whether a Villaine by this Act shall gain his Liberty d Sus de libertinis tit 5. 2. One may also constitute his Apprentice e Brook Testament 8. whosoever may be an Executor may also be a Guardian f Swinb part 3. Sect. 10. Of the lawfull Guardian-ship of Kindred TIT. XV. WEE have spoken allready of Guardians which are appointed by Law and this is by reason of an Estate in Fee which shall discend to Infants
of Kindred But as for the other they do not transfer it upon the Children of the Patrons but upon the Executors rather a Lit. l. 1. c. 5 for they reckon the custody of Wards among Chattells reall b N. Ter. ver Chattels Flet. l. 1. c. 11. and therefore if the Patron or Lord of the Fee do not demise them by his last will they are transmitted by the Common Law to the Executors of his last Will. Of the Attilian Tutorship which is appointed by the Lex Julia Titia TIT. XX. WEE have sometimes Tutores Dativi or deputed Guardians amongst us For in case the Mother being dead the Father dy intestate and leaves Children under age who have no Fee to succeed unto it often happens that the Ecclesiasticall Judge commit the Guard of them to such as shall have a care of their Persons and Patrimony untill they come to fourteen years of age And this is often attested and confirmed by an Instrument authentickly sealed But our Law doth not compell any one to such an Office nay rather the Judges stir up and make choise of those whom affinity and consanguinity oblige to this work of love and Charity a Swinb part 3. Sect. 9. 1. And probably that Guardian may not improperly be stiled Dativus Tutor which Bracton mentioneth b l. 2. c. 11. n. 1 Brit. c. 34 40 62. Fle. l. 1. c. 9. when he saith that it is convenient for him that giveth Lands or Tenements to an Infant to appoint him a Guardian also giving this reason because the Donor cannot be Guardian least he seem to continue his own Seisin nor can an Infant consent to the Gift but by his Guardian 2. The supream power may by Letters Patents constitute to an Infant an universall Guardian to answer appear for him in all Actions begun and to be begun and that before any Judg or Judges whatsoever Or the same power may authorise two or three Guardians joyntly or severally to answer or prosecute any Action in his behalfe and the same letters at the instance of the Infant may give power to the same Guardians joyntly and severally to substitute other Guardians under them who may in their place and stead act for the said Infant in all causes and complaints or make defence for him c F. B. fol. 27. b. 3. Nor is it unusuall in Court-Barons or other liberties for the Steward or municipall Magistrate to appoint Guardians to Infants d Kitch in preceden pa. 347. Of the Authority of Tutors and Guardians TIT. XXI AN Infant under the age of twenty one years cannot make any contract in his own name except for those things which apâ—eâ—tain to his necessary Food Rayment and Education a Brook tit Inf. 51. without the Authority and consent of him under whose power and custody he is b New book of Entrys tit .. Bro. non fuit comâ—os mentis Bract. l. 5. trac 2. c. 11. n. 1. nor can he commence his Suit against his Guardian c Bract. l. 5. tract 4. c. 4. n. 5. Brit. c. 121. An Infant may by himself and by his own Deed better his condition but he cannot preiudice himself d Bract. l. 2. c. 5. n. 8. 1. There is something more particular in those who hold by Knights Service For the capital Lords have a plenary power over their whole Estate without their persons and sometimes over their Persons also and so that they have the full disposing of Advowsons in case of Vacancies and in granting giving or selling their Wards And in case of female Heires of marrying them or selling their Marriages and generally of disposing all things whatsoever for the profit of the Heir e Of late for their owne proper profit Brook Gard. 2. Fitz. Accompt 36. as if they were to dispose of their own and better if possible They may sell their custody of the Lands and the marriages of the Heires if unmarried but they cannot alien any thing of the Inheritance or sell the Remainder Notwithstanding as for the heiâ— which are in custody they are to treat then honorably and to discharge the dutyes belonging to the Inheritance according to the quantity of the Inheritance and for the raâ—â— according to the time of the Wardship They may manage the affraies of their Heires recover their right in those things wherein the Heir as an Infant may plead or move or prosecute a Suit in their behalf namely of the rights of possession of proper Seisin or of the Seisin of an Ancestor But in aâ— Action of right in case of property they can neither act nor answer for them except of that of which the Infant was infeoffed during his Minority f Bract. l. 2. c. 37 n. 3. Brit. c. 34. fol. 90. 2. Guardians ought to sustain and keep in repaire the Houses of their Wards as also their Parks Warrens Fishings Mills and other Appurtenances least by neglect they be impaired or ruined by which wast may be found They are also bound to redeliver the Lands in due time free at least as they received them and that Gratis quitted both of releife and Fine in case they be accorded and agreed concerning Marriage g Flet. l. 1. c. 12. Mag. Cha. c. 4. West 1. c. 47. 6 Ed. 1. c. 5. West 2. c. 35. 3. The same Authority also have Guardians in Socage to contract to manage Suits in Law and to do all other things which are behoovefull either for the conservation or augmentation of the Estate of their Pupill But these are liable to render an account when their Wards shall come to age h F. B. fol. 118. b. 4 A Guardian may make Oath for his Word i Flet. l. 6. c. 10. 5. In some Cases our Law doth so highly â—avour Infants that it will not suffer them to â—un the hazard of Judgement although with â—he consent of their Guardians but stay proâ—eeding untill they come of age For in case of right or property of their possessions they can neither sue nor be sued except for such which themselves have gaind k Glan l. 7. c. 9. Bract. l. 5. tract 5. c. 21. n. 2. yet formerly there were bound in case of a Fine acknowledged in Court in case of a proper inâ—ury or Dower or in Case of what themselves had recovered l Dyer fol. 104. f. 137 but at this day they are not bound in case of Fine m Flet. l. 1. c. 9. 4 H. 7. c. 24 F. B. fol. 21. By what means Wardships expire TIT. XXII ALL Wards whatsoever not holding by Knights Service are without more-adoe freed from their Guardians at fourteen years of age a Lit. l. 2. c. 4 but those Tenants if male not till one and twenty if female not till fourteen b Id. ibid. or in some cases not till sixteen years of age c V. sup tit 15. Sect. 4. and although a Woman being full
not absolutely acquired by Livery of Seisin but as it were now this Seisure In Dominico c. Is twofold Direct or meerly for use Direct which is also tearmed absolute is that which comprehends both Property and use The other consists solely in the benefit and use of a thing i Bract. l. 4. tr 1. c. 27. n. 6. tr 4. c. 4. Fl. l. 1. c. 12. 2. The English have a full Dominion and Power of things corporeal and moveable but not of immoveable if we except the supream power and right of the Crown for the Subjâ—ct hath not an absolute freehold in their Lands and Tenements but a Fee only and that fee doth not comprise so absolute a power appears not only by those Authors who write of Fees k Anto. Con. in Feodorum Comment c. 2. Matthae us â—â—esenbecius in tr de feodis c. 1. but even by Littleton himself when he saies that such a one was seised of such an Estate in his Demesne as of Fee by which words he affirms the highest and fullest title to be exprest And these words as of Fee do abate somewhat of an absolute power and argue a Tenure from a superiour but that these words are sometimes referred to the Kings Demesne l In 27 H. 8 16. is either from the ignorance of speaking and applying or else that distinction is maintained by which some will have a double acceptation of the word Fee viz. One by which a man holds an immoveable thing by any Title to him and his Heires The other by which one holds from another by Rent or Service or both m Flet. l. 5. c. 5. whereas Fee in the second acceptation is never without the Oath of Fealty n Termes of the Law V. Fealty Fulb. Paral. c. Seigniority f. 19. b. which the King never gave to any one as having an absolute Power o Fort. c. 9. Bract. l. 1. c. 8. Brit. in Praemi 3. Fee which is in latine Feodum and by some Feodum comes from the German Fief which signifieth an Inheritance held of another p Hottoman b. disput c. 11. and is by those that write of Fees defined to be an immoveable thing given to another in such a manner that the Property continues in the Power of the Donor but the benefit and use is to the Donee and his Heires Males or Females for ever So long as the Donee and his heires doe faithfully their Services to the Lord q Anto. Continus in Com. sup feod c. 3. so that Fidelity or Fealty is the foundation of Fee and nothing else Yet it often hapneth that it is not bestowed Gratis but for some small consideration of Money in the name of Rent or for Services r Duar. in Com. sup feod c. 12. Smyth Com. l. 3. c. 8. but we understand by Fee all which we hold to us and our Heiâ—â— s Bract. l. 4. tr 3. c. 9. n. 6. Lit. l. 1. c. 1. 4. Fee as it is taken for an Inheritance held of another is held either of the King or a Subiect or that we may use our owâ— Phrase a common person Fees that are held of the King are double either in right of his Crown which we call Tenure in Capite or of some Honour or Mannor appertaining to the Crown But a Subiect although he may have others who hold of him in Fee from whom he may exact Fealty yet himself is either mediately or immediately Feodary to the King for all the Land of this Kingdome which is not held of others by Services is held of the King and belongs to him either as ancient Demesne escheats or perquisites 5. Fee is divided into many Species either from the Effect or from some cause efficient or formall but we shall only discourse breifly here of those which we meet with most frequently in our Books 6. Fee therefore is either Leige or nonleige some Feodists t Duar. ib. will have it to come from the Italian word Liga which signifies a Band or League and that because it ties and obliges the Vasâ—al For Leige is properly where any one swears Fealty to his Lord non-Liege is when with the exception of another The first is due only to the King the later to common persons u 10 R. 2. 11. c. 1. 34. 35. c. 3. Lit. l. 2. c. 1. 7. Again Fee is either Royall or noâ— Royall Royall is the greater for that it hath somewhat of Royalty in it as from whence any one is instituted from the King â—eing absolute without acknowledging a suâ—eriour Of this sort are those which had a â—ignity or Honour conjoyned with the powâ—â— of their Priviledges and are by us stiled â—â—erties or Prerogatives Royall as where â—â—e King grants by his Charter to any Subâ—â—ct the view of a Franck Pledge the Pleas 〈◊〉 Impranding the amendment of the faults 〈◊〉 Assise the adjudging of Robbers as infangâ—â—eife and outâ—ang theife Soc Sac Tol Theam â—o punish by the Gallows or other punishâ—ents which the execution of Judgement â—â—all require Goods of Felons and which â—â—pertain to the Peace and consequently to â—â—e Crown w Bract. l. 2. c. 5. n. 7. c. 24. l. 3. tr 2. c. 35. Wrecks of the Sea Whales â—uâ—geons Free warren Fayre x Bract l. 4. tt 1. c. 46. and those â—â—her things which fall within the Kings â—erogative But of these Fees there are â—â—th us certain degrees since some have a â—â—eater number some a lesser granted unto â—â—em The first the Principallity of Wales claims 〈◊〉 right y Polid. Vir. in ed. 1. f. 343. lin 28. which from the time of Edward â—â—e first did belong to the Kings eldest Son â—nd the second is claimed by the foure Paâ—â—tinates or Counties Palatine Lancaster â—â—rham Chester and Ely z 5 Elix c. 23. 17 Ed. 4. c. 1. 27 H. 8. c. 25. And these have those Fees which we calâ—â—d Honors which the King besides the Jurisâ—â—ctions contingent to Courts Barons hath â—â—anted some though not all these Royallâ—â—es out of his Munificence a 31 H. 8. c. 5. 33. c. 37 38. 37. c. 18. 8. Thirdly Fee is either noble or Ignoble â—â—oble is that which hath any Dignity annext to it or which enobles the Possessoâ— or concludes him to be noble And of the sort with us are those which we cal Mannâ—â— whose Lords have some Jurisdictions thouâ—â— not Royal over those which hold of their 〈◊〉 b Perk. 670. Fulb. par Seig. f. 18. Kitch f. 4 Ignoble is that which depends of such Mannor and is granted to Countrymen 〈◊〉 their Heires for some base Service this 〈◊〉 commonly called Free-hold 9. Fourthly Fee is either new or anâ—â—ent * Homage Auncestrell new is there where any one is first all invested by the cheife Lord of the 〈◊〉 and that either by the Curtesy of the Loâ—â— or for Money paid to the former
other which is so only by agreement Of the first sort are Tenants by the Curtesy of England and tenants in Dower for such is the Civillity and courtesy of our nation that if a man marry a woman that is an Heir and have Issue by her born alive that Land of which he is seised in right of his Wife in her life time he shall hold after her death for tearm of his own life f Bract. l. 5. tr 5. c. 30. n 7. Flet. l. 6. c. ult Dr. Stu. l. 1. c. 7. l. 2. c. 15 Dyer fol. 25. n. 159. f. 95. n. 35. In. J. co c. 8 which Law some ascribe to Henry the first g Spec. Just l. 1. a woman also whose Husband in his life time was seised in Fee shall have the third part of his Estate he being dead and in some places the halfe h Lit. l. 1. c. 9 in some the whole for her Dower i F. N. b. fo 150. P. Bract. l. 4. â—r 6. c. 13. n. 2. Dr. Stu. Bri. 1. c. 10. if at least she be nine years old that she may claim a Dower k Lit. l. 1. c. 4 Flet. l. 5. c. 22. there is another sort of Dower which is free-hold also namely Dower which is by consent which is that that is agreed on before marriage at the Church door or otherwise between the man and Wife l Lit. l. â— c. 4. Inst Jur. com c 9. Flc. l. 5. c. 22 Brac. l. 2. c. 39. breifly all Lands and Tenements which are either by bargain gift or any other contract held for term of ones own life or anothers are comprehended under the name of Free-hold m Inst Jur. com c. 6 Bract. l. 2. c. 5. n. 7. 19. And as Fee n Dyer f. 213 n. 42. fol. 288. n. 55. so free Tenement or free-hold may be of a thing incorporall as an office for life o Bro. tit Tenures n. 25. Dyer f. 211 n. 19. Thus have I given you a description of estates in Fee Inheritances and Free-holds the third is a kind of possession or Tenure comprehended under the name of Chattells â—â—lls and they are those which we hold 〈◊〉 Tearm of years or at the will of another â—enant at will is two fold viz. either by comâ—on Law or by the custome of any Mannor â—hich is by Copy of the Court Roll or by â—erge p Inst Jur. Com c. 2. 3. Lit. l. 1. c. 9. Kitch fo 102. b. Coo. l. 3. case Heydon fo 8. a. b. f. 9. But this kinde we referr to the â—hapter of uses Of which hereafter q c. 4. of this Book we all speake Of the Services which Inheritances are bound unto TIT. III. BEcause Services are reckoned amongst those things which are tearmed incorpoâ—l we shall take a view of them now there a certain service or Servitude which subâ—cts one man to another a See l. 1. c. 3. but it is not this which wee intend here to treat of but that which subiects one Estate or Fee unto other Yet is it like that other which renâ—rs one man a Servant to another for as at constitution is called Jus Gentium the â—aw of Nations which against nature subâ—â—cts a man to the Power of another so may also be said of Service or that constitution â—hich subiects one house to another and one state to another And thus Services may 〈◊〉 divided into such as appertain to Cities â—nd such as are Rurall b Brac l. 4. those which beâ—â—ng to Cities and for the most part such as the Civil Law mentions namely such 〈◊〉 inherent in the very buildings and theâ—â—fore called from the City Fees because 〈◊〉 call all buildings City Inheritances thoâ—â— built in Villiages c Bract. ib. Of this kind are thâ—â— not to build a House higher not to hinâ— lights or prospects to convey and keep 〈◊〉 Gutters and sincks from the yard or 〈◊〉 of ones Neighbour to lay a prop upon 〈◊〉 ther mans Wall or ground for the suppâ—â—tance of a House to beare an Incumberanâ—â— to have a Way Road or Passage For thouâ—â— a Way and Road be Rurall Country Seâ—vices yet are they City also when applyâ— to City Inheritances For it often happeâ— that a neighbour hath a power and libeâ—â— of passing through a Yard belonging to 〈◊〉 House or of going up ones staires to 〈◊〉 own chamber Rural are such as are not inâ—â—rent to buildings but are wholly withoâ—â— them And these also are almost the saâ—â— which the Civill Law reckons if we exceâ—â— those which the customes of Fees have intrâ—duced as a Road Path-way Aqua duct d Dyer fo 248. n. 80. fo 319. n. 7. drawing of water folding of Cattell paâ—â—ring of Cattell quenching of Lime digginâ— of Sand taking of Stone and the like Noâ— both the kindes of Services are either reall 〈◊〉 personall with relation to the thing or person to whom they are due 1. Fee Servitude which both by our Fâ—â—dists and Lawyers is called Service is either military and noble or Rustick and Ignoble e Fulb. divis of seign and services f. 20. b. military is that which performs some duty belonging to military discipline or some other thing that is honorable and this also â—s double one which is due to the King only f Lit. l. 2. c. 8 the other to the Lord of the Fee notwithstanding that he be Feodary to another that which is due to the King is double also namely Serjeanty and Castle-gard 2. Serjeanty is either Grand or Petit Grand is where any one in the name of his Fee is personally bound to perform any Office or other honorable thing to the King g idâ—b Flet. l. 1. c. 10. and l. 3. c. 16. which some also affirm may be due to a common Person h Bract. l. 2. c. 35. n. 6. of this kinde is the bearing the Kings Standard or Spear in Warr the leading conduct of his Army the performing the Office of Martiall the sounding of a Horn at the incursion of any of the Kings Northern Enemies to send an armed man if himself will not goe to fight under the King when ever necessity shall require within the four Seas to carry the Kings Sword before him at his Coronation to perform the Offices of Sewer Taster Carver Butler or Chamberlaine i Coo. l. 2. case Cromwell fo 81. a. And in such Services all the Barons in ancient time were obliged 3. Petit Serjeanty is that which renders to the King as an acknowledgement of the Tenure yearly a Bow Spear Dagger a paire of Gantleâ—s or a pair of gold Spurrs an Arrow a Horse or any such small thing which belongs to War Now he that holds such a Fee doth not perform any personall Duty but rather Patrimoniall and reall and that certain And therefore differs somewhat from the very nature of a military Service having a property of a
different Species k â—it l. 2 c. 9. Inst Jur. Com. 27. Broo. tit Tenures 69. but Fleta will not have this duty exceed the value of half a mark l l. 1. c. 11. 4. Castle-gard we have defined to be a service due to the King only Which is originally true because no man can erect a Castle or Fort in the Kingdome without the Kings License but in case the King granteth a Castle with all the liberties belonging to it unto a Subject he grants Castle-gard also if there be any such Service due unto iâ— And for this reason this Service may as well belong to a Subject as the right of a Forrest m Manwood par 1. de Jur. forset pag. 87. Cov. col 4. fol. 88. a. and Lit. c. Socage It is a Service consisting in fortifying and defending any Castle of the Kings or another Lords as often as the Feodary shall require And this is properly Knights Service when it requires the Person of the Tâ—nant but when it is converted into a certain pecuniary mulct payable every year for the fortifying and guarding of a Castle it is altâ—red from the nature of Knights Service n Tit. ib. Inst com c. 27. Bro. tit Tenures n. 58. F. n. b. fo 259. A. 5. The second sort of Knights Service or Military which is due to common persons as well as to the King is called Scutage o Plow fo 126. 129. from Sculum a sheild And he that holds by this is obliged at his own Charges for a certain number of daies to follow his Lord in the Warrs against the Scors p Lit. l. 2. c. 3. They who hold by an intire and whole Knights Fee q Camd. Bâ—it 111. which sâ—me determine to be 680. Acres of Land some eight hundred Acres some fifteen pounds Sterling some twenty pounds r 1. Ed. 2. c. 1. and others forty pounds s Smiths Com. c. 18. are bound to serve for the space of forty dayes t Bro. Tenures n. 19. they which hold but by halfe a Knights Fee twenty daies and so accordingly u Lit. l. 2. c 1. 6. Now that certain differences between Lords and Feodaries as well concerning Armes as the time of Serving viz. whether from the time of shewing or perfecting to begin might be removed it appears in most places that it is by ioynt consent of Lords and Tenants agreed that the Tenants shall pay yearly a certain summ of Money to their Lords according to the value of their Fee and so to be freed from personall duties w id ib. from whence the thing it self seems so changed by degrees that that service which with our Ancestors was so incertain is in most Fees at this day reduced to certainty and is called Scutage certain x Lit. l. 2. c. 5. that incertain kinde being in divers Mannors quite extinct now this certain Seutage is Socage y Bro. tit Tenures 28. 29. 7. There are also other reall Services which atâ—end a Knights Fee as the shadow doth the Body as Homage Fealty Custody of Land and Heires Releife Marriage z Brac. l. 2. c. 35. Lit. l. 2. c. 4. for these no time hath hitherto exterminated a Polid virg hist ang 16. 8. Homage which the Feodists call also Hominium b Hottom disp de feod 3. is a reall Service c Briâ— c. 66. spec Jâ—sâ— b. 3. Flet. l. 3. c. 26. which the Feodary yeilds regularly to his Lord at his first institution by prostrating himself on both Knees at his Feet with his head uncovered ioâ—ning his hands and putting them between his Lords who remains sitting and proâ—â—uncing these words or to the same effect Hear Sir I become your man from this day forward of Life and Limbe and of earthly worship and shall bear you Faith for the Lands I hold of you and if it be not the King that receives the Homage saving alwaies the faith which I owe unto our Soveraigne Lord the King so God me help and the Contents of this Booke which said the Lord shall kisse him d Bract. l. 2. c. 35. n. 8. 9 Lit. sect 2. l. 1. Inst Com. c. 23. 17. E. 2. Brit. c. 68. 9. Ranulphus de Glanville denieth than Bishop who is consecrated or a Woman may do Homage e l 9 Spec. 9. Inst l. 1. But Fitzherbert f N. B. 258. f. according to the Rule in the Register affirms that a woman if single may swear Homage and Fealty to the King when from him shee receives Livery of her Lands and our more modern Authors hold that both Clergy and Women are subiect to this Service although the termes of expression is a little different For a Clergy man for that he hath set himself a part for the more speciall service of God useth these words I do Homage to you and shall bear your Faith for the Lands and Tenements which I hold of you saving alwaies the Faith which I owe unto the King our Soveraine g Inst Com. c. 23. Lit. l. 2. c. 1. and a single woman doing Homage doth not say unto her Lord I become your Woman for that it is not convenient that she should be another mans woman then her Husbands whom she shall marry But she shall pronounce the same words which are prescribed to the Clergy h Id. ib. and a woman who is married shall do Homage by her Husband i Id. ib. 10. If it happen that any one hâ—lds divers Fees by Knights Service of diverse Lords he â—all do Homage to them all but shall use â—â—ese words in the end saving the faith which owe unto our Soveraine Lord the King and â—nto my other Lords k id ib. 11. Now it is to be understood that Hoâ—age is alwaies annexed to Knights service â—ut not solely to it for Tenant in Socage â—ay also do it l Brac. l. 2. c. 35. n. 6. 12. Homage is divided into new and anâ—ient called Auncestrell new is that which 〈◊〉 performed by him who hath a new Fee m Instit Com. c. 28. Lit. l. 2. c. 7. â—ncient by him who hath an ancient one â—nd that ancient hath a double effect one â—hat the Lord shall secure to his Tenant his Estate or fee or as our Authors say shall warâ—ant it against all men The other that he â—hall save him quiet and harmlesse from any Services of another Lord at least in respect or relation to that Fee 13. Fealty which our Authors also call Fiducia is a reall Service n Brit. c. 66. due from every Tenant to his Lord at his first induction whether the Fee be noble or ignoble for such is the disposition of this contract that whoever holds by Fealty only holds the most freely of any one except the King o Smith Com. l. 3. c. 8. for no Subiect can hold without Fealty p Lit. l. 2. c. 5. west Simbol l. 2. Sec. 303.
the Son a Knight or to marry the Daughter Quit-Rents and others which for that they depend upon divers Customes of severall places and upon the severall will of Lords is impossible punctually to reckon p Bro. Tit. Tenures n. 50. 53. 58. 29. Secta ad Curiam is a service which binds the Tenant to frequent the Court of his Lord q F. N. B. fol. 158. But they are not Feodaries alone who are obliged to this For wee have mention made of a four-fold suit of Court One by Covenant and Oligation Viz. when another who is not the Lord of my Fee Covenants with me or my Ancestors though not his Feodaries to performe this suite of Court Another by Custome where any one and his Ancestors time out of mind were wont to come to the Court of another and his Ancestors though not Lord of their Fee The third we may call a Servile suit which the Feodary performs to the Lord under the notion of service The fourth is Royall by which are found to goe twice a year to the Sheriffs Courts or Leet Courts that they may not be ignorant of what is done there for the peace of the Common-wealth Now our Authors call it Royall though by corruption some rearm it reall because the maine reason of it is to perform Legiance to the King for there all above 12. yeares old r Termes of the Law Tit. sug take the Oath before mentioned 30. Secta ad molendinum is a service by which the Feodaries as bound by Custome to carry their Corn to be ground at the Mill of their Lord. Å¿ F. N. B. sol 122. 31. Heriot otherwise Hariat is compounded of the Saxon words Here Geat Here signifying an Army and Geat a Journey and it was a Tribute payedunto the Lord when hee went to Warre t Lamb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Vero. Heriot Bracton sayes that Heriot is alone with Releife u L. 2. c. 36. And Britton w C. 69. Flet. l. 1. c. 18. That it is the Gift of the Feodary at his Death given to his Lord by which he leaves unto him the best Beast he hath or some other thing according to Assignment And he saith that this doth not touch the Lord nor the Heir or Inheritance not that it is to be likened to Releif But that it rather springs from the love and courtesie of the Tenant coming either from a Right or necessity of Duty and that both from villains and Free-Tenants Heriot is at this day a service by which the Tenant is bound to leave to his Lord the best Beast or for defect of that some other moveable which hee hath at the time of his Death And this is two-sold namely servile which Tenant in Fee simple payeth or constumary which is â—yed by Tenant for life according to the â—ustome x Bro. Tit. Heriot n. 5. Of Uses and Profits TIT. IV. IT appears from what hath been said that Services are either reall or personall a Brac. l. 4. tr 1. c. 39. 〈◊〉 reall we have already spoken personall â—re such as are due unto the person b Id. ibid. and â—is kind is twofold one due from the perâ—on of one to the person of another of which â—lso we have made mention before the other which is due from an estate to a person of which sort are profits uses Habitation whereâ—â—re uses and profits in respect of the perâ—on to whom they are due is a Right in reâ—pect of the thing which is due a Serâ—ice c Id. l. 4. tr 1. c. 37. n. 1. 1. Since there are none in England besides the Soveraigne power who hath a plenary and absolute dominion over immoveables it is not hard to discern who they are that are Possessors of estates as to the profits the estates being not wholly theirs which we shall tearm usufructuarii and who nor namely whether all Subjects by what Title soever they hold or onely some who hold by this or that Title for those which have a Fee have onely a power profitable d Wesenbec dâ— feod c. 1. n. 4. which according to the Feodists ceaseth they violate the faith due to their Lord 〈◊〉 not by our Law save in Case of Felony e Stanf. plac Coron l. 3. c. 30 now he which hath any use or profits loâ—â— hath some way or other a power also f Bra. l. 4 tr 1. c. 36. n. 2. Moreover he which hath a Fee-farm whoâ— the Civill Law of the Romanes called Eâ—phytenticus g vectigal ager which is one that hath anâ— state to improve although he have a perpâ—tuity yet he payes a yearly Rent by 〈◊〉 of an acknowledgement of the Seignâ—rie h Brit. c. 66. Lastly he that hath a Freehold and abuseth it is liable to an Action 〈◊〉 Waste i F. n. b. fo 55 Dr. Stu. l. 1. c 23 flet l 1. c. 12 which should not be were 〈◊〉 sole Lord and had absolute power in 〈◊〉 disposing of it but Bracton is very clear 〈◊〉 declaring what Titles our Lawyers incâ—â—â— under the notion of uses and profits for 〈◊〉 stinguishing between a Free-hold and aâ—â— state in profits he is much more diligentâ— distinguishing between Fee k l 4 tr 1 c. 36 Plow fo 83 and Fâ—â— Farm or farming of the profits for thâ— in those the possessor hath a perpetuity in theâ—â— only an estate for life whence it follows thâ— he onely is an usufructuary in an Estate 〈◊〉 us who hath Lands or Tenements for Teâ— of years or at the will of another or 〈◊〉 who hath Lands by way of pledge or security which we call Mortgage or by way of Eâ—â—cution whom we call according to the â—â—versity of the cause Tenant by Elegit Tenant by Statute Staple or Statute Merchant or lastly he who hath the Lands of an 〈◊〉 in Right of Guardianship untill he come to full age Now an estate of profits may be created with us either by gift and bequest or by conditional agreement l Inst com c. 5 Flet l. 1. c. 12. and it appears that our ancestors did sever the profits of a Fee from the propriety untill it was changed by Act of Parliament m 27. H. 8. c. 10. Coâ— l. 1. Chudleys Case but those estates which are held by Copy of Court Roll or by the Verge at the will of the Lord cannot be Leased out without the consent of the Lord above a year n Instit com nor can they be bequeathed or aliened by any agreement without being first surrendred into the hands of the Lord and from thence received by him to whom the former Tenant desires to alienate them o Id c. 15. 3. It is held also amongst us that uses and profits may be of those things which are extinguished by use and daily change so that without all doubt one may bequeath or by agreement create an use of Servants Money Oxen Cowes
party slain s 8. Things immoveable whether corporall or incorporall have divers Prescriptions The most usuall is that which is called the longest and is extended beyond the memory of man for whosoever will prescribe against another the maintaining of a Chaplain to celebrate Divine Service in any Church c new bo Ent Act. in Chaplein or the repairing of a Church d Eod tit in reparations or that being present at the Election of the Master of an Hospitall e Eod tit Quare im edit in Hospitall or an Annuity f Eod. tit Annuity in corp politique or the Cognisance of any Plea in his Court g eod serm de breif or any service in his fee h eod Replev in amerciament F. n b. fo 122 he muâ—â— prove them to have been time out of mind or he doth nothing nor do we mean any other then this when we speak generally of Prescription i Dr. Stu l 1 c 8. 9. But there are Prescriptions of shortâ—â— time as of 40 years in the way of Tithing k 2 3 E. 6. c. 13. five years for Lands and Tenements in case of a Fine acknowledged lawfully l Dr. Stu. l. 1 c. 25 l. 2 c 14 Lit. l. 3 c 7 Inst com c 27 Plow 357 Dier fo 72 n 3 of three years in Case of Lands and Tenements held gotten by forcbile Entry and held so long in quiet possession m 8 H 6 c 9 of a year and a day for a villain to assent his liberty against his Lord if he have continued so long in ancient Demesne or in any of the Kings Cities or Towns without being claimed oâ— molested n Flet l 2 c 51 F n b fo 77 as also for the Confirmation oâ— any Deed made by one who is in Prison unlesse he who made it do in the interim revoke it o Liâ— l 3 c 7 Brac l 4 tr 1 c 2. n 7 Brit c 42 Plow f 357 and 372 new Terms ver non claim so also for the hindering the Entry of him who having omitted continuall claim in case of his being uniustly disseised of those Lands and Tenements if he shall endevor to recover them so coming by the right of Succession to the Heir of the Disseisor p Brit c 34 Perk grants 29 10. No prescription of time shal prejudice the Supream Power q Id c 34 Bra l 2 c 5 n 7 nor any Lord but that he may challenge the perquisite of his villain r Brac ib 11. Nor is there a Prescription in all things as for example not in those which are not subiect to commerce nor in those of which the Crown is properly sole Lord s Lit l 2 c 11 nor where the use is repugnant to reason and good manners t Id ib Brac tr nor in case where an alienation cannot be made without an instrument u Brac l 2 c 19 n 4 1 c 38 n 13 and it is agreed amongst some of what things a prescription cannot be and received generall with us that no prescription in Lands maketh a right w Dr. Stu. l. 1. c. 8. 12. Nor can a prescription be of those pertinencies whose principles have not a perpetuall and durable continuance x Dier fo 70. n. 40. or of those things whereof no one can tell what he or his Ancestors particulerly whose Estate he hath did possess y Id. fo 71. n. 42 And lastly a Prescription is of no validity against a Statute afterwards made z Id. of 373. n. 13. 13. It was much controverted among the Ancients how long after one might bring his Writ of Right after the title or Right to Lands or Tenements c. have laine dormant or his Assise or Writ of entry to gain a possession as it were lost by him to whom it appertained a Thaleat Digest br l. 10. c. 21. but this whole Controversy is composed by the prudence of Parliament which hath provided and fitted apt remedies for the difference in each case b 32. H. 8. c. 2. Coo. l. 4. Bevils Case fo 10. â— Of Gifts TIT. VII THere are many waies of Acquisition by the civill Law viz. By way of Gift succession Testament and others as shall appear hereafter a Bract. l. 2. c. 4. Flet. l. 3. c. 2. but in regard that amongst all the other causes the most great known and famous is that of Donation or gift therefore it doth worthily challenge the first place for that by it there is a more great and frequent acquisition then any other b Brac. cod c. 5. n. 2. Brit. c. 34. 1. Donation is a certain institution which proceeding out of meer Courtesie and will without any coercive or compulsive Law or Right transfers a thing unto another And to give is to render a thing his that receivs it effectually otherwise that Donation or Giving were uselesse which could be revoked and made void c Bract. eod n. 2. Brit. ib. Flet. l. 3. 2. Our Authors do frequently call a Donation a Feoffment but the word Donation hath a greater latitude for that it doth not only comprehend a free alienation of immoveables but of some moveables also d Bract. l. 2. c. 26. yet in Lands these appellations are distinguished thus A Feoffment is of a Fee simple to the Donee or Feoffee and a Donation or Gift is of an Estate taile e Lit. l. 1. c. 6. 3. Donation in the largest signification is thus divided viz. That it is either amongst those who are still living or upon occasion of Death Of which we shall speak hereafter f Brac. l. 2 c. 5. Flet. l. 2. c. 57. Of gifts some are simple and pure as namely those which proceed no Law or right either civill or naturall inforcing no Reward Fear or Force interveneing from the meer free bounty of the Donor and where the Donor will not in any case that the thing given should revert to him g Brac. l. 2. c. 5. n. 3. and l. 2. c. 10. Flet. l. 3. c. 3. and c. 8 another is from a future Cause namely where any cause is interposed for which a thing shall or shall not be h Dier fo 33. n. 34. under which kinde fall gifts by reason of Marririage Dower i Glan l. 7. c. 1. and c. 18. Bract. l. 2. c. 7. Flet. l. 3. c. 9. or Death c. As if one gives any thing with such an intention that it shall be the Donees when a subsequent thing is performed And these kinde of Gifts are not properly Donations when they are conditionall k Bract. ib. Bri. c. 34. F. N. B. f. 205. h. Flet. l. 3. c. 11. but Donation is sometimes with relation to a cause past l Brit. c. 35. lit c. 5. fo 76 and sometime with relation both to past and future causes m Plowden fo 455 n Bract. l. 2. c. 5.
Croâ—â— Nor will an Obligation to warranty hinder unlesse it were upon Exchange Or otherwise for the value in Fee or service Oâ—â—â—least unlesse they were granted for the Câ—â—modity and Honour of the King as the Bâ—ronies of Bishops a Flet. l. 1. c. 8. 17. c. But this Right 〈◊〉 now almost wholly worne out either by the munificency of our Kings or by the 〈◊〉 much negligency of our Common-wealth And therefore King James did worthily study a wholsome remedy for so pernicious 〈◊〉 mischeife 1. Nor can a Husband so alienate the Inheritance or Joynture of his Wife but thaâ— it may be recovered by her or her Heirs after his Decease b Glan l. 6. c 3. Brit. c. 34. F. N. B. fol. 193. d. 2. Those who hold of the King in Capitâ— either by Knights service or Socage cannot without punishment alienate their Lands without license c Id. fo 175. A Bro. aliâ—nat tenures 69. 32 H. 8. c. 1. Yet some are of opinion that such alienation is good for the Buyer or Feoffee against the Seller or Feoffor although the King cannot be prejudiced by it d Bro. Testaments 34. 3. An Infant e F. N. B. fo 192. g. Perk. 3. Grants 15. â—9 Mad-man f F. N. B. fo 292. C. Monk g Perk. ib. 3. or Feme-covert h Id. ib. c. 11. Bro. Exec. 175. cannot alienate Nor can a villain those things which himself hath purchased i F. N. B. 202. l. if his Lord be possessed of them Or if they be not possessed in case hee be the Kings villain k Littl. l. 2. c. 12. 4. There is also an old Law lately revived by an Act of K. James which to the subversion of the Church was almost lost through neglect wherein Arch-Bishops and Bishops are prohibited to alienate the Fees of their Churches l 1 Jac. ses 1. c. 3. 5. Lastly those who otherwise may alienate in some cases cannot namely Lands or Tenements to a Body politick whether Ecclesiasticall or Seculer m 7. E. 1. 18. E. 3. c. 3. 15. R. 2. c. 5. F. N. B. fol. 221. Q. without obtaining the Kings license for alienating it in Mortmaine And on the other side Religious Colledges which were founded by the Kings of England are prohibited to alienate their Lands without the Kings License and permission n Westminst 2 c. 41. 6. And on the contrary it sometimes happens that he who is not Owner may alienate for a Creditor by contract may alienate a pawne or mortgage although the thing be not his As if it be agreed in the beginning that it shall be lawfull for the Creditor to sell the Pawne if the money be not paid So also may a Wife Apprentice or any other Servant which a Merchant appoints to sell Commodities in his Office or Shop o F. N. B. fol. 120. H. Bro. tit Contract 37. 40. or any other person who hath command from the Owner p New booke of Entries trespass in Agist 1. Ejectm firm 10. 7. And sometimes it falls out that he who hath a full power to alienate a thing cannot doe it but after a certain forme or manner for the King can neither purchase nor alienate without that special method of Entring which we call Record q Plow 553. By what person wee may make acquisition or gaine to our selves TIT. IX NOw we are to know by what persons wee may purchase or gaine to our selves And know that we may legally by our selves our Wives our Servants Male or Female by Sons or Daughters which are under our protection by Free-men who serve us provided their Deed be necessary and warrantable and approved a Brac. l. 1. c. 9. n. 3. l. 2 c. 11. n. 12 c. 18. n. 6. l. 3. tr 1. c. 2. n. 12. Brit c. 35. 38. Lit. l. 2. c. 11. Dr. Stu. l. 1. c. 8. l. 2. c. 18. And also by those Servants b Flet. l. 3. c. 13. c. 15. l. 4. c. 11. c. 12. who are not under our power as well as by those who are provided they be not under anothers yet so as we take no benefit by them before it be determined whose they are so also by a Common Servant and that as well by anothers as ones owne which we do bona fide possesse and by such a one of whom we have an use 1. And this may be done also by Procurators Tutors Keepers or Guardians who either bargain in our name or are in possession c Brac. l. 2. c. 18. n. 6. Flet. l. 3. c. 4. c. 15. And the same is to be understood of those who are naturally deafe and dumb d Id. ib. 2. The Sons and Daughters also of Villains which are under the power of their Lord without manumission If they make a purchase without the bounds of the villainage have no Heir but their Lord. If so be that he take possession of such Tenements either in the life of his Villain after his Death e Brac. l. 4. â—r 3. c. 13. n. 1. Of ordaining last Wills and Testaments TIT. X. THe third kind of Donations which are by reason of Death are last Wills and Testaments a Brac. l. 2. c. 26. Flet. l. 2. c. 57. Now a Testament is the determination of our Will concerning that which one would have done after his decease b l. 1. de â— Testament And it is double Viz. Proper or Improper That which is properly so called is that last Decree of a man in which hee names his Executor c Brc. Test 20. And hee is in the place of him whom the Romans called Haeres is as the Basis of the Testament d Swin par fo 1. Sect. 3. n 19. representing the state of the Testator That which is improperly called a Testament is any other lasâ— wil whether a Codicel or Donation by occasion of Death or Letter e Valiâ—ius in com sup Instit tit de Testam ord in pri n. 9 10 11. And either of these may be two-fold Viz. either written or Nuncupative f Perk. Testam 476. but Lands cannot be given by a Nuncupative will g 32. H. 8. c. 1. Coo. l. 3. Bakers case fo 31. Dier fol. 53. n. 13. fol. 72. n. 2. fol. 143. n. 54 55. 1. That rigorous way of Solemnity which the Romans used in making of Wills is long since abrogated by the Canon Law which counts two Witnesses before the Parish Priest sufficient to maintain or prove a Will h C. cum esses 10. extra testamentis Nor doth the Custome of England oblige so much as the Decretall for with us it is sufficient to pronounce a will before two Free-men whether Clergy or Lay i Brac. l. 1. c. 16. n. 2. Glan l. 7. c. 6. Dier fo 52. n. 13. Yet our Sages doe for very good reason perswade men
Ancestor unlesse he be specially mentioned in the Instrument of Contract and have an Estate sufficient discending 2. Bracton d L. 2. c. 26. n. 1. Glan l. 7. c. 8. Plow fol. 418. makes this distribution of Chattells Viz. That Debts being paid the overplus should be divided into three parts whereof one to be left to the Children the other to to the Wife and the third at the will and pleasure of the Testator And if there be no Children then one halfe to the liberty of the Testator and the other to the Wife And if there be no Wife then one moity to the Children and the other as the Testator shall please But this rather seems to be Counsell then Law for a little after in the same place hee saith That neither the Wife nor Children ought to take more of the Goods of the Father or Husband deceased then what is particularly bâ—quâ—athed unto them except it be upon some speciall grace as having merited extraordinarily of him in his life time And he gives this reason namely because there would scarce be found any one who would endeavour to lay up much if hee should be compelled at his death to leave it to illiterate or debauched children or to an ill wife And therefore it is very necessary that in this they should have a free power for by this they prevent vice and encourage vertue and give occasion both to VVife and Children of well doing which could not be if they knew undoubtedly that they should have a certain portion whether the Testator will or not Of the instituting of Heires TIT. XIV THe Civillians and wee have a different acceptation of the word Heire for they call him an Heir whom the Testator nominates in his VVill a Inst de Testam ordinand And we him who is next of Kin to the party deceased to whom a Fee doth of right belong after the death of the Ancestor b Glan l. 7 c. 1. Brac. l. 2. c. 33. â— 3. Brit. c. 118 119. So that we affirm it is not man but God who makes Heirs c Glan Brit. ib. And that Here 's comes from Hereditate where succession is by right of Blood d Brit. ib. Nor do we call all the Estate of the party deceased his Inheritance but only his Fee or at lest those Lands tenements with all things corporal and incorporall which the Party deceased held by a perpetuall Right e Iidem ib. VVherefore it was necessity which in some sort constituted an Heir who as he was wont to succeed his Ancestor in the premises even against his will so was he obliged to pay his Debts if he had Assets sufficient and the Chattels did not suffice f Glan l. 7. c. 7. Brac. l. 2. c. 26. n. 1. as we have in part declared before 1. VVherefore an Heir with us doth not succeed to the universall Right of the Party deceased but to the Fee assigned only for as to the disposing of Chattels men nominate their Executors according to their pleasure g Glan l. 7. â— 6 Brac. ib. Dr. Stu l 2 c 10 who as to that part of the Patrimony supply the place of an Heire and represent the person of the Testator if at least they accept the Office h Bro Executors 5 21 22 57 77 84 122 so that they may convert all those goods which are not bequeathed to their own use i Plow 943 and take even the cloathes of the widow if they are more rich and sumptuous then the condition of the Husband would bear k Bro. ib 19 An Executor may also be ordained either absosolutely or upon Condition l Id. ib 9 administrat 1 45 and either from a certain time or after a certain time m Bro Exec 155 and either universally or particularly n Id ib 2 and 155 L Dier fo 3 4 n 7 8 and in the first degree or by Substitution o Id ibid and either one or more p Id ibid 13 24 38 117 3. And those may be Executors whom the Testator shall constitute whether they be strangers or Parents of Kinne or not of Kinne q Brac l 2 c 26 n 2 and not onely those who are free but Servants also and those whether our own or of others r Lit l 2 c 11 Bro villains 68 nor only Lay-men but even of the Clergy also and Religious s Bro ib 68 77 if they have the permission of their Superiors t Fitz. abrid Execut 47 so also may women u Bro. Execut throughout and Infants w Id ib 15 and in fine all who are not expressely forbidden by the Law x Glan l 7 c 6 4 4. Not that any one is against his will forced upon this office but that he that will may refuse and he who hath once refused may notwithstanding afterwards undertake it z Bro ib 38. 117 Perk 4 85. though according to the opinion of some he cannot during the life of his Co-Executor a Dier fo 160 n 42. but being once undertaken it cannot be laid down again and the undertaking of it seems to be when he doth under that name intermeddle with any of the Goods of the Testator b Id. f. 166. n. 10. 11. If an Executor die before the Will proved then Administration of the Goods shall be granted by the ordinary to the widow or next Kinsman of the Testator who shall be obliged to dispose of the goods of the Testator according to the Will unlesse the Remainder of the Goods after the payment of Debts and Legacies were bequeathed unto him for in this Case the Executors of that Executor may justly challenge Administration which the Will annexed c Id. fo 172 n. 8. Of the ordinary Substitution TIT. XV. Substitution is of no small use with us though we do for the most part in this follow the Precepts and Rules of the Civil Law yet we cannot so freely dispose of those fees which we hold by Knights Service by our Testaments but that we are obliged to leave a third part to the heir a 32. H. 8. c. 1. Glan l. 7. c. 7 but for those which we hold in Soccage not intailed b Brac. l. 2 c. 30. or tied by any particular Custome c Glan ib. we may bequeath them to whom we will whether to a Kinsman or stranger d 32 H. 8. c. 1. provided we hold no other Lands in Capite by Knights Service and in each of these Cases we may make Substitution either vulgariter as they term it or Pupillariter Now this Substitution is nothing else then the adding of a Condition which we commonly call Tail namely a limitation of Heires to whom we intend to have the Lands discend from the Testator or remain or otherwise revert to us and our Heirs 1. Yet is not this Substitution the same with that of the Romanes
although for the most part it leaves the Cases of wills to be tried by the Ecclefiasticall Courts according to the Rules of the Civil and Common Law yet are there certan particular Cases of Lands and Chattells really and which she hath reserved to her self and those with as much brevity as we can we shall sum up 2. And in the first place all may give Legacies who are capable of making wills and who they are we have formerly mentioned but no man can rightly bequeath Lands or Tenements who hath not the possession of them at the time of the making of the will b Fulb. Par. e. Devises fo 37. a. 32. 34. H. 8. which is to be understood if no other person be not also in possession in his right or name for one may bequeath a Reversion 3. All men also are capable of Legacies who are not especially excepted by the Law which are religious persons and persons not yet in being although they afterwards shall be As if one makes a bequest to such a Colledge or Chantry of which name though there be not any at the time of the Testators death yet there happens to be one afterwards c Perk. 505 Fulb. ib. fo 35. b. but a Post humus in favour of Testaments Although he be in the Wombe is notwitstanding supposed to have being d Tearmes v. devise 4 A Husband although he cannot make a Gift to his wife in his life time because they are both adjudged one and the same person during Matrimony yet he may give and bequeath Lands unto her by will in regard that Legacies take no Effect before the death of the Testator by which this conjunction is dissolved e Fulb. ib. 36. a. 5. One may also give a Legacy to an uncertain person which may afterwards be rendred certain as an annuity is given to A. for life and after his death to him who shall first in the Morning enter Saint Pauls Church and to his Heires B. enters in the morning before any one else this Legacy shall inure not only to A. but to B. and his Heires also f Id. ib. 6. A Body politick unlesse by the Kings particuler Charter is not in capacity of receiving an Estate bequeathed g Perk. 505 7. By our ancient Law Fees could not be bequeathed by will h Id. 537. Brit. c. 34. 27. H. 8. c. 10. Dr. Stu. l. 1. c. 7. and c. 20. Dier fo 74. n. 14. but necessarily discended to the next Heires i Glan l. 7. c. 1. Bract. l. 2. c. 26. Dier fo 127. n. 54. except contrary to the Common Law the particular custome of any City or Corporation permitted k Lit. l. 2. c. 18. F. N. B. 198. I. unlesse the Heir consented to such bequests Whosoever therefore would by his will give Lands to another did first infeoff one in them to the use of himself and his Heirs l Perk. 528. and by this means he might bequeath the use of the said Lands although he could not the Lands themselves unto a third person m Id. ib. 97. but later times have remedied this inconveniency or rather poor and weak comment and hath deereed that not only uses but even the Lands themselves with some moderation may be bequeathed n 32. H. 8. c. 1. Bro. testam 19. Swinb part 3. S. 4. Coo. l. 7. Case Butler fo 30. for of a Knights Fee we are yet obliged to leave the Heir a third part and we are prohibited the bequeathing of Lands by a will nuncupative in regard of the deceit and fraud they are subject unto o Dier 155. n. 21. 8. If a man and his Wife ioyntly purchase Lands to them and the Heirs of the man and the Husband bequeath them after the death of him and his wife to a stranger this is good For in this case the Husband hath the Fee-simple p Perk. 539. 9. If there be two Joynt-Tenants in Fee-simple where by the custome of the place Lands and Tenements may be given by will and one of them bequeaths his right to a third person this is void For since a Will is not in force untill the death of the Testator the right of a Joynt-Tenant at the very instant of his death is transferred by law unto his fellow q Inst Jur. Com. c. 15 which notwithstanding is otherwise in Partners because Partners have their Lands by blood and Inheritance and not by the Courtesy or pleasure of a Donor Joynt-Tenant have theirs r Ib. 10. A man may also appoint by his will that his Executors may sell those Lands which he hath in Fee and which he may bequeath and that the profits arising from such Saile may be imployed for pious uses or for the good of his Soul s Perk. 422. 541. 543. 21. H. 8. c. 4. but iâ— they shall cease to fulfill the command of the Testator within two years the Heir may enter upon them and eject them t Fulb. par c. Devises fo 40. Plow fo 523. 11. A. being Tenant in Socage gives the Lands which he hath in Fee-simple to his wife for tearm of life the Remainder to B. his Brothers Son and the Heires males of his Body and if it shall happen the said B. to dy without Heires of his Body begotten not expresly nor implicitely naming males there the said Remainder to C. another Kinsman and his Heires males in Fee-simple and for defect of Heires males of the said C. then to the next Heirs males of the said lineage lawfully begotten B. dies leaving only Issue D. a Daughter the question is whether D. shall have the Lands by force of those words and if it shall happen c. or some other Heir male more remote But it was adiudged that those words did not create a general Tail to the Heirs of B. or hinder the Lands from remaining to the Heirs males according as devised u Dier 171. n. 7. 12. Chattells of any sort may be bequeathed by will w Perk. 511. wherefore the profits arising either from the custody of a Body or Lands of a Ward a Lease for years Horses Oxen Sheep Gold Silver either in Plate or Money Rings all manner of Vessells without exception are diviseable x Id. 525. unlesse the Testator had but a Joynt possession of them at the time of his death y Dr. and. Stu. l 1. c. 6. Lit. l. 3. c. 3. and unlesse they be affixed to the Fee or Free-hold and cannot being reputed parcell of it be removed without wast z Bro. Execut. 65. 13. Monies also due upon Bond or Condition may be devised for that after they are paid to the Executors they are due to the Legatee a Perk. 527. 14. Chattells which a man hath in right of his Wife as Leases for years c. are deviseable b Id. 560. 15. A thing uncertain may be also devised so long as it may be reduced to
certainty by the Legatee c Fulb. par 38. b. 16. There hath been a great difference in opinions amongst our learned Lawyers and that according to the diversity of Species in the cases of Corn c. sowen by those who had Land in possession and not severed from the Soil For example Tenant in Dower sowes Corn and dies before Harvest She may devise the Corn though not yet ripe d Perk. 521. Stat. Merton c. 2. Flet. l. 2. c. 37. which is true also as to those Lands which she holds Joyntly or severally under the notion of Dower e Perk. 513. Fulb. 17. â—ural Devises 38. 17. But if contrary to custome she be endowed by the Guardian of the Heir and dying leaves Corn growing her Executors may be ejected by the Heir when he comes to age and hindered from gathering the profits f Perk. 524. So if the Heire coming of age recover Lands against his Mother or Widow of his Ancestor in a writ of Admeasurement of Dower he shall recover not only the Lands but the Corne also which is by him deviseable g Id. ib. 18. Tenant by the Courtesey leaseth forth his Lands and dyeth The Lessee shall reap his Corn and may if he dye before it be ripe devise it h Id. 514. which may also be done by a Parson of a Church as to his glebe Lands i 28. H. 8. c. 11. 19. So also he who hath Lands in right of his Wife his VVife dying after the Corne sowen may reap the benefit ar devise it k Perk. 518. Lit. l. 1. c. 8. which his Lessee also in case hee have leased out the said Lands may doe l Perk. 513. Fulb. par fol. 37. b. 20. Execution is taken upon a Mannor of the Debtors by vertue of a Statute Merchant The Creditor sowes the Land and before Harvest a Tenant of the said Mannor dyeth the Custody of whose Heir being under age satisfieth the Debt This will not hinder but that the Creditor may also devise the Corn not yet ripe or gathered m Ib. 516. 21. Mony is paid at the day upon a mortgage yet it seems the Creditor although some are of a contrary opinion may devise the Corn which he sowed and which as yet remains ungathered n Id. ib. 22. Tenant in Taile leaseth out his lands for life The Lessee sowes Corn the Heire recovers upon a Formedon in the Descender and dyeth before the Corn is gathered This Corn according to the opinion of some though others contradict it hee may devise by Will o Perk. 520. Fulb. fol. 37. b. 23. Tenant in Fee-simple dyeth and leaveth an only Daughter and a VVife with Child The Daughter enters and sowes the Land but before Harvest the VVife is delivered of a Son to whose use the next Kinsman possesseth himselfe of the Estate in this case the Daughter may devise the Corn. p Perk. 521. Fulb. fol. 38. a But we will put the case thus The Mother before the Sonne is born recovers Dower against the Daughter and hath that part assigned by the Sherifte which the Daughter sowed In this case she may devise the Corn yet it is a Quaere q Perk. ib. 24. Tenant for tearm of yeares commit waste upon which the Lessor recovers the Land In this case the Lessee cannot devise the Corn r Id. 515. Neither can he if another upon a more ancient Title recovers the said Land against the Lessor s Id. ib. 25. Lessee of a House for forty years deviseth the said House to A. without mentioning the Title which he hath or giveth The Question is what he deviseth And it is adjudged that the Testator deviseth that title which himselfe hath Viz. The term of forty yeares t Dyer fol. 307. n. 69. 26. Lessee for years be que at heth his Interest to A. the remainder of the years to B. in case A. dye before the term expired A. is in possession by vertue of the Devise and not long after Aliens his Right and dies before the terme expired The Question is what remedy B hath to recover his Right as to the remainder of the years unexpired And it was adjudged that he is without Remedy u Id. fol. 75. n. 18. f. 140. n. 41. But if the Testator had devised so many years of the Lease to A as A should live and had ordered B. to succeed in the residue In this case A. could not have so alienated the Term but that B. should have succeeded in the Remainder unexpired w Dyer fol. 358. n. 50 51. fo 359. n. 52. 27. Disseisee recovers against the Disseisor The Disseisee may devise the Corne sown but if it shall be severed from the ground the Disseisor may take it away or devise it x Perk. 519. yet he shall pay the Disseisee Damages y 6. Ed. 1. c. 1. 28. A Testator can neither devise Actions if they be not Judgments nor instruments of Actions z Brac. l. 2. c. 26. a. 28. n. 2. l. 5. tr 5. c. 10. n. 3. Fulb. fol. 30 31. but hee may that which is due upon Action Yet is this devise conditionall namely if the Debt be paid or recovered by the Executors a Perk. 527. 29. Our Law respects principally as doth the Civill Law and Reason likewise the will of the Testator b Cook l. 3. Bullers case fo 27. Fulb. fol. 46. Plow 343. if not contrary to Law If therefore a man having both a Sonne and Daughter living deviseth his Lands to his Daughter Although the Sonne be more worthy yet the Daughter shall have the Lands c New terms v. devise If he adds and annexeth a Condition to the devise which is neither impossible in Nature or Law this shall suspend the devise untill it be performed d Brit. c. 36. Perk. 570. Brac l. 2. c. 6. n. 1 2 3. Swinb part 4. Sect. 13. And this is so farre true that sometimes words are extended beyond their naturall intent e See the rest of his tit and sometimes for causes restrained f Fulb. 41. Plâ—w 540. by reason of the conjectured will and meaning of the Testator 30. A. deviseth Lands to B. conditionally that he pay so much money Although by force of words B. hath an Estate for life only yet the Law adjudgeth him to have a Fee-simple g Brac. Test 18. Perk. 555. for otherwise if B. should dye in a short time He might receive more prejudice then profit by the Devise 31. A. deviseth all his Lands and Tenements to B. B. shall not only have all the Lands and Tenements which A. had in possession but the Reversion likewise h Termes v. Devises 32. If Lands be bequeathed to One to have any to hold to him for ever Or to have and to hold for him and his Assigns for ever In both Cases the Devisee hath an Estate in Fee-simple
although there be no mention of Heires i Id. ib. which notwithstanding some affirm joyntly k Perk. 557. 33. If a man bequeath Lands to another in these words I give my Lands to A. to give them or sell or dispose of them at his discretion This is a Fee-simple l Terms ib. 34. A Testator bequeatheth Lands to A. and the Heires Males of his Body A. hath Issue only a Daughter and of her a Grand-son In this case the Grand-son shall succeed in the Lands by force of the Devise rather then the Devise shall remain ineffectuall notwithstanding that in other Donations it is otherwise m Id. ib. 35. If I devile Lands to my Son after the death of my Wife although I doe not expresly give it to my Wife yet our Law â—elpes her by a favourable Construction n Id. ib. Pl. 414. Bro. Exec. 175. 13. H. 7. fol. 17. 36. I devise a Fee-simple to A. for a 100. yeares upon this condition if that he shall pay ten pound yearly to B. the remainder of the said Lands to C. and his Heirs In this case although A. shall break his Condition yet the Remainder as to C. is not hurt although the Law be contrary in Contracts made amongst those who are living o Perk. 504. 565 566 567 568 569. 37. A man deviseth all his Lands to A. upon condition that he give a 100. pound And in case the Condition be infringed then to his owne Family In this case our Law determineth this Devise to belong to him who is next of Kinne to the Testator by blood p Fulb. 46. 38. A man deviseth to another all the Grain which he hath in such a Barn And after the Will is made hee puts more Grain into the said Barne In this case the generality of the words is restrained to that which was there at the time when he made his VVil for that the Law presumes the Testator to have meant only of that q Id. fol. 41. Plow 341. 39. A. after many Legacies in his VVill deviseth the Remainder and residue of all his Goods to his VVife E. in these words The residue of all my goods I bequeath unto my deare wife E. whom also I doe ordaine full and sole Executrix of this my last will and Testament to be disposed of by her for the good of my soule and the payment of my debts E. takes upon her the Office of Execution and payes all Debts and Legacies Afterwards she entermarryeth with B. who getting possession of the said Goods having made his VVill and ordained his Executors dyes before E. Here the question is whether the Goods which E. brought to her second Husband shall revert to her Or whether they belong to the Executors of B. And it was determined that they should revert to E. because the residue of the Goods were destined to certain uses and not left to her disposing r Dyer fol. 331. n. 21. 40. A. being possessed to the value of 100. pound and indebted 20. pound divides his Estate by his Will One moity to B. his Wife the other moity to his Executors The question was whether B. shall have 50 pound or 40 pound and it was resolved that the might claim 50. pound But if the Executors had aliened any of the Goods in Specie that then she could not challenge any of those which were alienated because they were alienated s Dyer fol. 164. n. 57. 41. Devises and Legacies are to be sued for in the Ecclesiasticall Court t Glan l. 7. c. 7. Yet some restrain this assertion only to Chattels reall and personall u Perk. 570. for that the Ordinary cannot take Cognisance of Fees or Freehold w Id. 576 577 578 579. devised But a Prohibition will lye if any Judg of any Spiritual Court shall cyte one before him in case of such a Devise as intrencheth upon the Common Law x Dr. Stu. l. 2. c. 55. Of the taking away or translating Devises TIT. XXI WHereas the Civil Law doth ipso facto null the Will for default of an Heir a L. 10. â— de jure codillorum Ours doth not presently suffer Devises to become void for want of an Executor or for default of an Executors undertaking the Office but appoints Administration of the Goods to be committed to another according to the Judgment of the Ordinary who obligeth the Administrator to the payment of Legacies at least as farre as the Estate will reach b Bro. Executors 1. Lands Tenements and other Hereditaments whatsoever devised by a Testator If they shall happen afterwards to be alienated by him and are again redeemed They are equally due to the Legaree as if they had never been alienated c Id. Devise 8. Of that Law which the Romans called Lex Falcidia TIT. XXII THe first duty of an Executor taking upon him the Office is to satisfie the Debts of the Testator and therefore it wil not be amisse to consider what Antiquity hath adjudged in these cases If there be Debts owing to many saith Bracton a L. 2. c. 26. Glan l. 7. c. 5. Flet. l. 2. c. 57. one may be preferred before another The King is first and it shall be lawfull for the Sheriffe or any of the Kings Bailiffs shewing the Kings Letters Patents De summonitionibus scaccarij to take an Inventory of such Goods and Chattels as they shall finde in the Lay-fee of the party deceased and to attach them to the value of the Debt which is coming unto the K. per visum legalium hominum as we call it so that nothing be removed or taken thence untill such a Debt as shall appear due be payed and the residue of the Chattells to be left to the Executors To the acquitting of which Debts or any other the Wife of the party deceased is not to contribute any thing out of her Joynture for that the Wives Joynture ought to be free b F. N. B. fo 151 a. which holds true except where the Husband is indebted to the King before the Title of Joynture In the second place are to be deducted debts due to others such as are clear and acknowledged amongst which are to be reckoned services and Servants wages provided they be certain But if they be incertain although they depend upon courtesy Yet if their stipends shall be set by the Will of the Testator or his Friends they shall be deducted out of the Goods of the deceased so shall Funerall Charges The Wife also shall have her necessaries even her lodging in her Husbands cheife Mansion house for 40. dayes unlesse her Dower be sooner assigned 1. But that the Estate of the Party deceased may the better appear the Executors or Administrators with the privity and by the assistance of two at the least of the Creditors or Legatees Or if they refuse then two of the next of Kinne provided they be unconcerned of the Deceased Or
w Lit. ib. 19. All persons may regularly take formes except spirituall who are prohibited unlesse it be for the maintenance of their Families x 21. H. 8. c. 13. 20. Lessee is obliged to pay his Rent to the Lessor which if he shall faile to do the Lessor during the Terme may distrain and this seems true whether it be agreed so or not For whatsoever is brought by the Lessee into the Tenement is annexed as a pledge for the Rent y Dr. Stu. l. 2. c 9. Lit. ib. Brac l. 2. c. 28. n. 1. but after the tearm he cannot z Lit. l. 1. c. 5. Flet. l. 2. c. 59. the payment of Rent admits no satisfaction for the Lessee is not freed by paying before the day a Coo. Bevills case fo 10. a If Tenant of a Fee-farm doth not occupy the Land leased for the space of two years by reason whereof there can be no distresse the Lessor upon his Action may recover it into his own hands b 6 E. 1. c. 4. Westm 2. c. 21. F N B fo 209 G 22. But in most Leases whether for years 〈◊〉 life it is covenanted that in case the â—ent be behinde at a certain day yearly 〈◊〉 half yearly unpaid that the Lessor may â—â—ter reastume the possession to himself or â—â—at the Lease shall forthwith become void â—â—d expire In the first case if the Rent at â—â—e day assigned be not paied being lawfulâ—â— demanded upon the ground by the Lesâ—â—r not only he in his life time but after his â—eath unlesse he distrained in his life time 〈◊〉 the Rent or received it upon tender c Coo. l. 3. Pennants case 〈◊〉 Heir may enter otherwise not d Dr. Stu l. 1. c. 20. Dier fo 51. n. 17. for â—ent ought to be demanded e Perk. 836. nor in this â—â—se doth the day demand for the man but 〈◊〉 the condition be that the Rent shall be â—â—id in any extrinsecall place there needs 〈◊〉 demand according to the opinion of â—â—me f Dier l. 8. n. 23. 24. though others more modern affirm â—â—e contrary g Coo. l. 4. Burroughes case fo 73 23. If Husband and Wife hire land at too â—â—ere a Rent the Husband dying before the â—earm the Wife may leave it and if the Husâ—and survive the wife and dye his Execuâ—â—rs have the same liberty If the Testotors Goods are not sufficient to satisfy the other Creditors the Rent being computed for 〈◊〉 tearm of years h Dr. Stu. l. 2. c. 33. Dier fo 146. n. 70. 24. If a man make a Lease for a year upon Condition that the Rent shall be paid at Michaellmas and in the mean time give a generall release to the Lessee of all Actions â—nd Demands this doth not remit the rent i Lit. l 3. c 8. although it seems something strange 25. A Lessee is not only bound to the payment of Rent k Dier fo 4 n 1. but also to use well the thing leased l Id. fo 324. n 34 so that if either he or a third person commits Waste he is liable unto the Lessor according to the penalty of the Statute m 6 E 1 c 5 Dier fo 90 n 9 and 10 and fo 108 n 31 and fo 198 n 43. and is left to take his remedy against the third person n Dr. Stu l 7 c 31 and l 2 c 4 unlesse he be aâ— Infant o Id l 1 c 17 but it is not waste to fell timber for necessary reapaâ—tions p Id ib 26. In selâ—ing and hiring the Law is the same as to the mutual obligation of persons as in Covenants And therefore if the Lessee undertakes for himself to do or not do anything his Executors or Assignes not being named himself is only bound and they free from any manner of Obligation q Dier fo 65 n 8 but this is sometimes disputable A Lessee covenants with his Lessor that if either he his Executors or Assignes alienate the Lands leased to another that then it shall be lawfull for the Lessor or his Heires to re-enter and to eject the Lessee his Executors or Assigns and not long after the Lessee falls sick and by his last will constitutes his wife his Executrix and dies the wife marryes a second husband who alienates her right and tearm in the said Lands and it was much questioned whether in this case the Lessor may enter in regard this second Husband was neither Executor nor Assignee of the first But in the end it was determined for the Lessor because the second Husband was in this case adjudged Assignee in Law though not in fact r Dier fo 6 n 5 27. If a Lessee oblige himself to leave houses in repaire at the end of his tearm the Lessor cannot bring his action of Covenant untill the Term be ended although the Lessee should pull the houses down yet he may bring an Action of waste s F. n. b. fo 145. K. 28. Lessee is not obliged against a greater force or against tempests or Incursions of enemies unlesse he do expresly oblige himself to it t Dr. Stâ—â— l. 2. c. 4. Dier fo 33. n. 10 11. fo 36. n 35. fo 56. n. 14. 12 H. 8. fo 1. b. v. Lit. l. 1. c. 8. 29. Tenant at will is not bound to repararations as Tenant for years u but if he commits waste he is liable to an Action of Trespasse w id ib. Dier fo 90 n. 9 10. Of Partners or Fellowship TIT. XXVI OUr judicious Lawyers are very frequent in disputing the Rights of those partners or fellows who hold Lands or other things pro indiviso and these they call either Partners Joint-tenants or Tenants in Common a Little l. 3. c. 2 3 4. 1. Partners are either by the Law or by Custom by law b Termes v. Parceners Little ib. two or more women of the same degree who for defect of Heires Males succeed by equall Right in the inheritance of their Ancestors or else the sons of two women to whom Lands not formerly divided by their mothers descend c Little l. 3. c. 1. and 2. by Custome are those who from the Custome of divers Provinces which we call Gavell kind do equally succeed their Ancestors whether they be brothers or for default of them sisters Nâ—ices or Aunts 2. Joint-tenant are either called so properly or improperly e Instit Jur. Com. c. 15. Dier fo 67. n. 18. fo 160. n. 43. properly are those who hold a Fee or Freehold or any reall Chartell by force of the same Title pro indiviso improperly are those which possesse any personall Chattell so and those are thus ioyned either by their own will solely as purchasing the Premises with their own mâ—nies and so possessing them pro indiviso or else by the will and bounty of others as where one gives any thing to two or more iointly f
many Practicers have told me For that the Sheriffe in his return of the Writ names Pledges for prosecution not as to oblige them to any Processe but to avoid Errour since that really there is no body obliged 1. How the Defendant in former times gave caution or put in Baile for his appearance many have declared at large but that for the most part is altered Wherefore for the more full handling of this businesse wee have thought it needfull to run over and examine the custome of every Court 2. The Upper Bench in the Infancy of the Law did for the most part handle criminall causes And if that be true which wee read tooke little cognisance of private contracts unlesse it were out of particular favor but left them to be decided by the Justices of the Common Pleas the Sheriffs in their County Courts and Barons and Lords of Mannors b Glan l. 1. c. 2 3 4. l. 8. c. 10. l. 10. c. 10. 18. But at this day it receives and determines all civill Actions which can but be drawn within the compasse of Trespasses vi armis or contra pacem c Cromp. fol 47. And the Defendant if taken within the same County where the Court is viz. in Middlesex is brought to answer any private Action whatsoever without distinction d This writ is called a Bill of Middlesex But if it be not found in that County then he is supposed under the pretence of fraud or contempt to sculk in the County where he dwels under which colour he is commanded to be taken and to be committed to the Marshall of the Court to be kept In whose custody so soone as he shall come because he is now in the same County where the Court is he may be compelled to answer any Action whatsoever e Dyer fo 217 n. 1. and to put in Baile to the Action unlesse he will goe to prison And by a Writ of Errour every Action together with the Records of the Court which concerns it may be called into this Court at this day not withstanding that it could not take its beginning there f F. N. B. Bro. Error Crompt fol. 47 48. 3. In personall and civill Actions which are prosecuted in the Common Banck or Common Pleas. There first issueth forth a Summons g Brac. l. 5. tr 5. c. 31. n. 2. which is taken out of the Chancery as all originall Writs are And if the Defendant be not found or being found doe not appeare there is issued forth a Capias Alias Plures yet so as there are fifteen dayes intervene each Writ And if he be taken he is committed to prison to be kept till the day of his appointed appearance unlesse he give security to the Sheriffe who is the person commanded to take him for his appearance which being done he could no longer detain him except it were for some particular causes h V. N. B. 41. F. n. b. 66. E. But if after the Plures they could not be taken then an Exigent was issued to the Sheriffe in which he is required to demand him in open and publique County Court for five Court days together to make his appearance And if hee did not appeare then he was deprived of the Kings protection and lost the benefit of a Subject for he was proclaimed out-law'd and all his Goods Chattels Rents and Profits of Lands and whatsoever did naturally grow thereon were forseited to the Exchequer notwithstanding that the Action was personall i Bro. forfeiture fol. 30. 4. In reall Actions if the demand be of a Corporall thing The Defendant is first summoned And if he appeare not then the thing in Action is seised into the hands of the Supream Power untill he do appeare k V. N. B. fo 126. 161. which is done also if after his first appearance he delay to answer l Id. ib. If it be a Right which is in question and cannot conveniently be taken then the Defendant is summoned and not appearing his Goods are distrained m Id. 71. 27. But I cannot affirm this rule so constant as not to faile n Assis ult present fol. 26. But there is no great necessity of being exact here in regard every Writ hath a forme in it of taking security by which the Defendant is bound in Law o Regist Origin 5. There is no Processe lies against the bodies of Parliament men or of Bodies politick but they are first summoned and upon their contempt their Goods distrained untill they appeare For the Law presumes them who are Parliament men are able enough p V. N. B. fol. 61. And bodies Politick have not visible Existencies whereby they may be taken q Plowd 538 539. And Noble men and Prelates who claime the Titles of Peers and who sit in Parliament have alwayes had the priviledg That in Corporations and Burroughs through which they passe their Horses cannot be distrained for Debt upon a Contract or Trespasse so long as they have other Chattels there by which they may be distrained r F. N. B. fol. 93. I. 6. There are certaine Cases wherein the Defendants body may be taken without summons and hee be compelled to put in baile for his appearance in which cases his Goods may be distrained though he be not personally taken s F. n. b. Trcsp fo 85. 92. V. n. b. 49. as Trespasse and other cases of the same nature t V. n. b. 121. 57. 69. 92 93. And if the Defendant have not Goods then is he sued to the Utlawry 7. In the Chancery in cases of Equity there is first a Summons under a pecuniary mulct of a hundred pound to appeare at a day prefixed Which if they neglect then their bodies are taken if found and either they are committed to prison or forced to put in Baile But if they be not taken then Proclamation issues forth and is made in divers places of the County publiquely wherein they are summoned upon their Allegiance And if upon this they appear not then a Commission is issued forth to certain Eminent men in which they are permitted to seize them as Rebels and to bring them or cause them to be brought into the Chancery by a day prefixed in the Commission u West part 2. Sect. 22 23 24. But even here also Parliament men injoy their priviledge That the Lords Chancellors by their private Letters doe gently intreate them to appeare and answer by their Attorney w Id. ib. 21. But if in this Court Processe be according to the custome of the Common Law as upon an account x Cromp. 41 42. or an Audita Querela y Plowd 72. Then are they also compelled to appeare by Writs fitted for the exigency of the businesse 8. In causes criminall which are capitall as in Treason or Felony there is first a Capias issued forth then Alias Plures then an Exigent and upon
bring a Personall Action which concerned neither Title of Lands free Tenement Inheritance or Battery in any of the Courts at Westminster in which Action the Judges of the Court should value both the Debt and Damages to be under forty Shillings that the Costs of such Suit should not be assigned greater then the principall value And that whereas the Sheriffs and their Deputies were wont formerly to cite and Summon the good people of England without any warrant or Writ to the said Courts or to imprison their bodies or distrain their Goods that from thenceforth they should not dare to attempt the like and he that made Default in this or caused another to do so should be committed to Prison without Bail or Mainprise untill he had besides Damages and Costs of Suit paid ten pounds to the party iniured and twenty pounds to the Exchequer f 43. Eliz. c. 6 4. Nor shall a man escape unpunished for moving or beginning every Suit rashly for in some Cases if the Plaintiff upon the Defendants appearance desist he shall pay Costs g 23 H. 8. c. 15. as Informers upon penall Statutes if after the Suit begun they delay discontinue or be non-suit in the same or have the Triall or matter passe against them by Verdict or Judgement of Law they shall pay unto the Defendant his Dammages and Costs which shall be assigned him by the Court. h 18. Eliz. c. 5. 5. So also they who indict or impeach any one under the pretence of any crime whereby their lives credits or Estates are in Jeopardy are liable to an Action of conspiracy i 33 E. 1. Sta. 3. 3 H. 7. c. 1. which presumes malice whereby they shall be compelled to pay the full Damages sustained by such accusation or eviction k F. n. b f. 115. â— and in some Cases they shall pay treble Damages l 8 H. 6. c. 10. 6. And I have heard from some practisers that if any one in forma pauperis procure a Liberty of bringing his Action in the Upper Bench Common Pleas or the Chancery according to the Statute m 11. H. 7. c. 12. and betray rather a Spirit of Contention in the end of the Suit then a iust cause that such person shall have corporall punishment n 23 H. 8. c. 15. 7. But our Ancestors were wont to deterr men from their light and rash Suits by an Oath for it was prohibited every one to bring any Action of Battery before the Kings Justices unlesse it were for wounds or maims without they first made Oath that his Plaint was true or an Action of Trespass for goods taken without making Oath that the Goods taken were worth forty shillings at the least o 6 E. 1. c. 8. 8. There are many Statutes made by the no lesse prudence then equity of former Parliaments p 32 H. 8. c. 30. 18 Eliz. c. 14. 27 Eliz c. 5 6. Plow 83. 522 523. for the speedy deciding of Suits which that they might be preferred before private ends and profit were to be wished by all good men in regard rhey do principally recommend the truth of causes to the Justistices reiecting all malitious calumnies of those who are subtle and litigious and amongst these that is worthy to be numbred by which the crafts and knavery of under-Sheriffs and their Officers and Bailiffes are restrained q 27 Eliz. c. 12 Of the Office and Duty of a Judge TIT. XVII OUr Kings were wont formertly at their Inauguration or Coronation to take an Oath to this Effect viz. that they would keep inviolate all the Rights and Liberties of Holy Church which were granted unto her by the Christian Kings of England That they would keep without impairing or diminution all and singular the Land and Dignities appertaining to the Crown and indeavour with all their power the restitution of such as were impaired or lost if any were that they would cherish the quiet and Peace of the Church Clergy and people that they would keep and observe the ancient Lawes and Customes of the Kingdome which were received and established by the consent of the whole people and abrogate all such Customes and Lawes which were ill and naught And lastly that they would to the utmost of their power assure Peace to the People of their Kingdome and procure it from others a Brac. l. 3. tr 1. c. 9. n. 2. F. n. b 232. A. Spec. Justic l. 1. c. 1. Flet. l. 1. c. 7. 1. The Oath of the Justices of the Superiour Courts and of the Barons of the Eychequer are to this effect viz. that they will well and truly serve the King and his People and not consent to any thing which may tend to their preiudice or Exheredation that they will not take Fee nor Robe of any man but the King that they will not take any gift of any one whose cause is depending before them except meat and drink and that of a small value nor any thing for any cause after it is tryed b Brac. ib. c. 8 n. 2 3. n. 9 10. that they will not give counsell to any one in any case which concerns the King under the pain of being at the Kings Will as to Body and Goods that they will not be deterred by the Kings Letters from doing and administring Iustice to any one b Brac. ib. c. 8 n. 2 3. n. 9 10. 2. This we have even from the very beginning c 2 E. 3. c. 8. 20 E. 3. c. 1. Dier 138. n. 27 unto this present that where any one is sued in case of property of a Fee Simple for Lands or Tenements it is at his choice whether he will be tried by his countrey or by Battell if he prefers to be tried by his countrey the businesse is determined by a Grand Assise but if by Battell then a day is appointed d Glan l. 2. c. 6. 7. Brit. c. 42. upon which the Case is committed to two combatants whom we call Champions according to the Law of single Duell between whom it is decided by the event e Dierf 301. n. 40. 41. 42. 3. The ancient custome of the Nation requires also that all Trialls of private Actions except a few as to matter of Fact f Plowd 92. 114. should be determined by a Iury of twelve free and lawfull men of the same vicinage who are neither allyed to either Party g Dr. Stu. l. 1. c. 7. or hindred by any iust exception h Dier 144. n. 59. 176. n. 27. 177. n. 33 316 n. 3. Bro. Tit. Challenge 4. Those who are indicted for any capitall crime or Felony before a Iudge unlesse any question arise touching matter of Law are not allowed Councell Yet the Laws require That the Judge himselfe should instruct the party in all things appertaining to the form of his defence lest an ignorant Innocency endanger his life i Fortesc c. 27. Dr.
Felons that their Bodyes are hanged up on high in some publick Roade neer the place where the fact was committed as an obiect to those which passe by and are not to be removed until they be consumed Now there are others who shew more at large how and by what wayes murder may be committed q Stan. Pleas Crow l. 1. c. 10. Lamb. l. 2. c. 7. fo 230. 16. And it is murder also where any one kills himselfe For such a person is called Felo de se In which case Christian Buriall is forbidden and all the parties Go ds and Chattells are forfeited to the supream power to be disposed of to pious uses r Brac. l. 3. tr 1 c. 31. Pâ—ow fo 253. yet some there are who distinguish whether the party laid violent hands upon himself through fear of Judgment or being weary of his life or through the violence of some disease For in the first case as other Felons he looseth both his Land and Chattels in the second his Chattells only and in the third he forfeiteth nothing s Flet. l. 1. c. 36 17. That which is committed through sudden passion Anger is called simple t Glan l. 14. c. 3. Homicide or man-slaughter and it is punishable with death also yet such is the commiseration of humane weaknesse with us or the pious instigation to learning that he who is convict of this Crime the first time if he can read perfectly and distinctly as a Clarke ought to do is freed from death and his lands and goods being forfeited is only burnt in the hand by which means he may be known if he commit the like crime again and committing it the second time he is to dy without mercy u 18. Eliz â— 7 but so great hath been the bloody wickednesse of these times that this Law hath been somewhat more exasperated For now by an Act of Parliament in K. James his time it is decreed that he who stabs another who hath never a Weapon drawn or who doth not provoke him by stricking first shall loose the benefit of Clergy although there do no precedent malice appear if the party dy within six Months unlesse it be done in his own defence or for the necessary conservation of the publick place w 1. Ja. c. 8. now this favour of Clergy is not only granted to these but even to all other Felons unlesse where it is denied by some particuler Act of Parliament x 23. H. 8. c. 1. 25. H. 8. c 3 26 H. 8. c. 12. the other kindes of Homicide are not accounted Felony y Lamb. l. 2. c. 7. fo 248. 18. For every Homicide which is without malice is either necessary or casuall z West Simbol part 2. fo 48 49 that which is necessary is likewise double one which cannot be declined without prejudice to publick Justice the other which cannot be avoyded without the death of the innocent an example of the first sort may be given in the case of killing a Robber or Theife who cannot otherwise be apprehended and of the later in case where one kills another in his own defence the former is free from all manner of punishment a Stanf l 1 c 5 the later not simply for it is materiall that the party who is slain set upon the party that kills him in his own House or neer the Ordinary high-way with a malicious intention to kill or rob him or in case that he be moved with sudden passion and pursues the party defending himself with an intention to fight with him so far untill he can fly no further for in the one case he kills him without incurring any punishment at all b 11 E 1 1 Mar c 12 Stan l 1 c 6 7 but in the other case he loseth his Goods c 6 E 1 c 9 nor is he received and taken into grace without the expresse pleasure and Indulgency of the supream power which notwithstanding is granted and obtained of course 19. Casuall Homicide is double likewise one which is meerly through mis-fortune the other which is mixed also with some fault in the party who kills the other That often happens in the Lawfull prosecution of a lawfull Act and often from a bruit or an inanimate thing Of the first kinde is where any one is killed with the fall of an Arme or Lopp of a Tree or a Tile from a House after warning given by the parties who are either lopping or tiling d West Simbol part 2 Sec 50 tit Indictments to which also may be added that which may happen in Justs and Tournements in regard the parties who are there in Action are supposed to be making trialls of their strength in the way of freindship And therefore K. Henry the second ordained that those should be pardoned thereby giving them to understand how much they were obliged to perform for the Kings sake when required e Spec Justic l 1 c Del Office del Coroner Of the second fort is where any are suddenly drowned in falling from a Ship Boat or Bridge or slain with a Cart Mill or the like In whch Cases we have before related what our Law determines f Fleta l. 1. c. 25. 20. Homicide which is mixt with some fault of the party who kills the other and yet is casuall or accidentall is where one that is lopping of a Tree or tiling of an house happens to kill another with a Lop or Tile not having given any warning g Stanf. Pleas Crown l. 1. c. 8. of which kind others draw many examples h Flet. l. 1. c. 31. 26 H. 8. c. 16. 5 Eliz. c. 17. 21. Felonies which are committed upon the Body and yet deprive it not of life is where any one out of malice cuts out the tongue either of a man or beast or puls out the eyes of any Subject i 25 H. 8. c. 6. 5 Eliz. c. 17. or commits the horrible and abominable sin of Sodomy with a man k Fleta l. 1. c. 37. but those who commited any kind of Sodomy were used to be buried alive in the Earth l 3 H. 7. c. 2. Lamb. l. 2. c. 7. or having stoln away a Widow Wife or Virgin who hath an Estate in Lands or Tenements or who hath goods or Chattells or who is Heir apparent to her Ancestor and marries her being so stollen away against her will or commits a Rape upon her or he who assists m Lamb. ib. 18 Eliz. c. 7. any one in the committing of such crime He also where any one hath the caâ—nall knowledge of any woman who is under the age of ten years old whether it be with her Will and consent or without n 12. H. 4. c. 13. Stanf. l. 1. c. 14. Glan l. 14 c. 6. or lastly where any one commits a Rape upon any woman whatsoever to these we may also adde him who marries a second Wife in the life time
their Lands to be made by the Sheriffe to appeare personally in the Chancery or in either Bench or before Justices particularly for that purpose deputed to answer such contempt if they appeare not Then are they their Procurators Attorneys Executors Notaries and Summoners deprived of protection their Lands Goods and Chattels forfeited to the Supream Power and their Bodies wheresoever found and taken kept in Prison untill they have paid a Fine to be imposed upon them at the will and pleasure of the Supreame Power r 27 E. 3. c. 1. Bro. tit Praemanire 10. 40. Those also are lyable to this who seeke for any presentations to Churches Prebendaries or other Ecclesiasticall Benefices from Rome Or who seeke and obtaine any Processe concerning the premises any Excommucations Bulls or other Instruments from thence Nor they only but their Procurers Executors Notaries Summoners Promoters and Assisters s 13 R. 2. c. 2. So also those who procure any Provisions from the Pope by which they become absolved from their Obedience or obtaine any Office in any Religious House c. t 2 H. 4. c. 3. As Arch-bishops Bishops Abbors who paid a greater summe then usuall to the Pope for their Benefices u 6 H. 4. c. 1. together with those Rectors and Vicars under the Jurisdiction of the Arch-Deacon of Richmond who impose too great exactions upon the Subject w 26 H. 8. 41. To which wee may adde those who defend or promote any Authority or Jurisdiction of the Pope which hee shall claime in ENGLAND either by word writing or Act Or those who shall assist help or comfort any manner of way any person or persons who shall defend or promote the same x 5 Eliz. c. 1. 28 H. 8. c. 10. 1 Eliz. c. 1. Those who entertaine or assist any who shall bring any Bulls Writings or Instruments of Absolution or Reconciliation from the Sea of ROME or from any person exercising the Authority of the said Sea Or who shall under such colour absolve or reconcile any person or who shall accept of any such Absolution Lastly those who shall bring over from the Pope or See of ROME or from any one claiming his Authority any Agnus Dei Crosses Pictures Beads c. and shall deliver them to any Subject here or procure them to be delivered or offered to the end that they should make use of them And those also who shall receive any such thing being offered and not apprehend the person offering them or not deliver him to the Ordinary or some Justice of Peace within three days together with the thing so received y 13 Eliz. c. 2. 42. They also come under the same notion who being compellable refuse the Oath of Supremacy being lawfully tendered z 1 Eliz. c. 1. 5 Eliz. c. 1. Or who doe directly or indirectly give any money or sustenance or any other thing to any Jusuite or Priest remaining in any Seminary or to any other Priest Deacon Religious or Ecclesiasticall person or to the maintenance of any of their Seminaries or Colledges beyond the Seas a 27 Eliz. c. 2. 43. And lastly Those who take or procure for Usurers by way of Usury though under the notion of any Sale or Contract above a tenth per annum b 19 Eliz. c. 8. But some of our Lawyers through gaine or ambition have too violently extended this strict punishment by stretching the words of one Statute c 16 R. 2. c. 5. which are meant in the generality to every light offence of Judges especially Ecclesiasticall d Cromp. fo 52 to whom I shall only say That that Candor of some were to be desired and that Ignorance of others lamented which a very learned Man did lately most accurately perswade and refute e Cosmus part 3. c. 7 fol. 85. 44. Those Crimes which are punished with the losse of Protection are not to bee esteemed light Now they incur this who being five times lawfully summoned in a full County doe not give their appearance to a personall Action or an Indictment f 13 E. 1. c. 35 31 Eliz. cap. 3. for they are pronounced Utlawed And if it be a civill Action they forfeit all their Goods and Chattels with the profits naturally arising from their Lands g Bro. forfeitures 30. And if it be criminall then they forfeit all their Lands and Tenements also to the publique Exchequer for ever h Terms of the Law v. Utlawry and are ipso facto deprived of the benefit of all Lawes and of the priviledges of Subiects so that according to the Ancients any one might kill them unpunished i Brac. l. 3. tr 2. c. 11. But this Law being altered k 5 Eliz. c. 1. they are now referred to a pecuniary Fine Those also are liable to this punishment who remove or throw down the Sea-marks by which Marriners are secured from wandring and directed to their Port if the Offenders be not worth a hundred pound whereby they may with moneyes satisfie for their oftence l 8 Eliz. c. 13. 45. Periury committed by any person who was of a Jury in any Court was so odious to our Ancestors that it was decreed that all such Offenders should have their Medowes and Gardens digged up their Houses pull'd downe their Woods extirpated and grub'd up and all their Lands confiscate m Termes v. Altaint And moreover according to some they were io be committed to Prison and for ever rendered so infamous that they were deprived of the benefit of the Lawes and their Testimonies never to be admitted in any Cause n Fleta 46. Those who committed periury in any Court were fined twenty pound and suffered sixe moneths imprisonment without Baile or Maine prize and made incapable for ever after of bearing Witness in any Court of Record And if any person did procure or suborn another to commit periury in any Court hee is to be fined forty pound And if hee have not so much in Goods and Chattells he is then to suffer six months imprisonment without Bale and to stand in the Pillory in the same Towne or in some other in open Market for the space of an houre and furthermore is made uncapable for ever of bearing Witnesse in any Court of Record o 5 Eliz. c. 9 But periury was wont frequently to be punished with en extraordinary Censure in that Honourable Assembly of Peeres in the Starr-Chamber p Dyer fol. 242. n. 53. 47. Next to this are those Crimes which were punished with dis-membring or Mutilation of the Body As the cutting off the hand q 33 H. 8. 6. 12. of him who presumed to strike another within the Verge of the Court of the Supreame Power The losse of his Eare who maliciously struck another with a Weapon in a Church or Church-yard or who presumed to draw a Weapon for that end r 5 E. 6. c. 4. And if the person so offending happened