and again Mutually and on the other side the said Farmours and Grantees for term of years life or lives their Executors Administratours and Assigns shall have like advantage against them for any Condition Covenant and Agreement contained in the said Indenture as they might have had against their said Lessors and Granters their Heirs Successors all benefits and advantage of recoveries in value by reason of any warranty of deed or in Law by voucher or otherwise only except Provided that this Act shall not extend to charge any Person for Breach of any Covenant or Condition comprised in any such writing but for such as shall be broken and not performed after the first day of September in the 32. Year of this King and not before CHAP. XXIII Livery of Seisin and Atturnement IN all Feoffments gifts in tayle Leases for term of anothers life of Lands or Tenements there can be no Alteration Transmutation of Possession by the Antient Laws of this Realme unless there be a certain Ceremony Adhibited and Solemnized in the presence and sight of neighbours or others which Ceremony is called Livery of Seisin And ye shall understand The manner Livery of Seisin that this Ceremony of Livery of Seisin is done when the Feoffour Donour Lessour or other Deputy come with the Neighbours Solemnly to the Lands or Tenements and they put the Feoffe Donee or Lessee in possession of the said Lands or Tenements by delivering to him a Clod of Earth or the ring of the Door or some other thing in the name of Seisin and for this self cause this Ceremony of Law is called Livery of Seisin that is to say a Tradition or giving of Seisin But this Ceremony is not required in Leases for term of years Diversity between Possession and Seisin or in Leases at will For as much as the Lessour in such Lease remaineth still seized and the Lessee only hath possession without any Livery of Seisin and therefore the terms of the Law be that such a man is possessed whereas in Feoffments gifts in tayle and Leases for life he is called seized Wherefore if a Feoffment or Lease for life be made of Lands or Tenements and before that the Livery of a Seisin be made the Feoffour dieth the Heir of the Feoffour shall have Lands Per summum jus that is to say by the Rigour of the Law Notwithstanding that the Feoffee have paid to the Feoffour the price of the Land and although the Feoffee be in possession but otherwise it is of a Lease for term of Years A like Ceremonie is used Atturnment when Rent-charge Rent-service Rent in gross a Villain in gross common in gross common for Beasts certain Estovers and such other things as pass by way of grant be granted for it is no full and perfect grant till it be consignat and sealed as it were with the Ceremonie of Atturnment this Atturnment is nothing else but when the Tenant of Land of which a Rent granted is granted or out of which a Rent is granted doth make some evident signification and token that he accepteth the person to whom the grant is made to be in the same respect unto him that the granter was as for an example if the Tenant of the Land after he have heard of the grant cometh to the grantee that is to wit to the person to whom the grant was made and say in this wise or in like effect I agree unto the Grant made unto you by such a man How attu nment shall be made or I am well apaid and contented of the Grant that such a man hath made unto you but the most usuall frequent form of Atturnment is to say Sr I atturn unto you by force of the said Grant or I become your Tenant or to deliver unto the grantee a Peny or a Halfpeny by way of atturnement If a man maketh first one grant to one person and after another to another person that grant shall stand to which the Tenant will atturn although it be to the later grant And ye shall note That if a man be seized of a Mannour which is parcell in demean and parcell in service and doth alien the same Mannour to another unless the Tenant of the Mannor do atturn the Service shall not pass only Tenants at will excepted for it needeth not to cause them to atturn Note furthermore Diversity there is a great difference between giving a Peny in name of Seisin and giving by way of Atturnement for when it is given by the Tenant to the Grantee in the name of Seisin it doth not only imply an Atturnment Assize but also it giveth him such a seizin that if the Rent afterward were behind and not paid he may now upon the seisin of the Peny after a lawfull distress taken and after Rescous made Writ of Rescous bring an Assize of Novel Disseizin whereas if it were given only by way of Atturnement he could not bring the Assize but his Writ of Rescous only if Rescous were made Also ye shall understand That where Lands be deviseable by Testament by the custome of any ancient Borough or City if the reversion of any Lands be by Testament bequeathed to a man in fee and the Testator which we call the devisor dieth the devisee that is to wit he to whom the devise was made hath forthwith the reversion in him without further ceremonie of Atturnement Atturnment likewise it is if a man by testament doth bequeath a Rent-charge that he is seized of or of a Rent-service there needeth none atturnement at all If two Joyntenants of Land and the Lord granteth the services to another if one of the Joyntenants atturneth it is enough Finally If a Lease be made for terme of life the remainder to another in tayl the remainder over to the right Heir of the Tenant for terme of life in this case if the Tenant for terme of life will grant his remainder in fee to another by his deed this remainder passeth forthwith without any atturnement For if any Atturnement were requisite it should be made of the Tenant for terme of life Not Requisite which in this case is the granter himself And in vain it is that the granter should be inforced to atturn sith an atturnment is adhibited and had to none other purpose then to have the consent and agreement of the particular Tenant to the intent that it may appear that he hath notice and knowledg of this grantee but here where the particular Tenant himself is the granter an atturnement were superfluous and more then needed Note furthermore That where there is Lord and Tenant and the Tenant leaseth his Tenements to a woman for life the remainder over in fee the woman taketh a Husband and after the Lord granteth the services c. to the Husband in this case during the coverture the services be put in suspence Suspence but if the Wife die leaving the Husband
suffereth the husband of such a wife to receive and keep still all his wives Land that she had either in fee-simple or fee-taile so long as he liveth and this is by the curtesie and urbanity of England for this thing is used in none other Country nor Region But in this it is required that the Child be vitall that is to say be born and brought forth into this world alive and therefore the common saying is and hath been that unless the Child be heard cry the Father shall not be Tenant by the courtesie for the only proof and argument of life in an Infant born is the vagite and crying Ye shall furthermore understand that unless the husband be in actuall and reall possession of his wives Lands and seized of them in her right he shall not be Tenant by the courtesie after her death And therefore if Lands descend to a mans Wife so that she is Tenant in the Law and to every mans Actions yet if the Husband have not made an actuall entrie during coverture and matrimony between them he shall not be Tenant by the courtesie for it shall be reputed and judged his folly and negligence that he would not enter in her life time Otherwise it is of Advowsons Rents Commons and such other things which forthwith when they descend be in man or in a woman without any entrie or further ceremonie in Law Note That if a Tenant by the courtesie of England will suffer or make any waste in the Lands or Tenements that he so holdeth he is punishable therefore by Action of Waste brought by him in the reversion Also it is to be known That of things that be in suspense a man shall not be Tenant by the courtesie and therefore if a man be Tenant in fee-simple of certain Land and doth intermarry with a woman that is the Seignioress or Lady of the same and hath issue by her and she dieth yet shall he not be Tenant by the curtesie of the Lordship or Seigniory because himself is Tenant of the Land and therefore the Lordship is suspended for the time for a man cannot be both Lord and Tenant of one thing but if he had not been Tenant of Land he should have had the Lordship after the death of his wife by the curtesie of England very well Also note That of a right only a man shall not be Tenant by the curtesie as if a woman sole seized in fee of Lands or Tenements be disseized and after take a husband and they have issue and she die before any reentrie be made the husband shall not be Tenant by the curtesie Note further That of a reversion a man shall not be Tenant by the curtesie as if a woman sole seized of Land in fee make a Lease to S. for terme of life after taketh a husband and they have issue and she die living the Lessee for terme of life the husband shall not be Tenant by the curtesie CHAP. XI Of Tenant in Dower TEnant in Dower is she that hath been married to a husband that was during the matrimony between them seized of Lands or Tenements in fee-simple or fee-fee-taile which is now dead and she seized of the third part of her husbands said Lands for terme of her life for by the Common Law of the Land Dower at the Common Law if the husband be at any time during the coverture seized lawfully whether it be by purchase or by discent either in fee or in fee-fee-taile and die his wife shall be endowed by the course of the Common Law of the third foot Dower by custome and in some places by an ancient custome she shall be endowed of the Moitie yea and though the husband were never seized actually during the coverture yet if the Lands be cast upon him by the Law so that the Law calleth him Tenant to every mans Action it sufficeth the woman to demand her dower for it were unreasonable that the negligence and slackness of entring of the husband should hurt the wives Title Otherwise it is as it is said before of Tenant by the courtesie Tenant by the Courtesie for if Lands descend to a woman covert and the husband for slothfullness or negligence doth not enter in his wives life he shall not be Tenant by the courtesie for by all Laws the wife oweth obedience and subjection to her husband and therefore she cannot compel him to enter but when Lands discend to the wife the husband only hath power to enter at his pleasure And ye shall understand that unless the wife be above the age of Nine years at the time of her husbands death she shall not be endowed by the Common Law But it is to be known A Woman shall have no Dower that a woman may by divers wayes estoppe and prejudice her self of her dower as if she commit any crime for which she is attainted of Treason Murder or felony she shall have in this case no dower notwithstanding she hath obtained her pardon Allo if after the death of her husband she taketh a Lease for terme of life of the same Lands whereof she is indowable she loseth her dower of the same Moreover if she depart from her husband and lieth in adulterie with another man and is not reconciled again to her husband without cohersion of the Ecclesiasticall power she loseth her dower after her husbands death she shall be also barred of her dower if she will withhold from the heir the Charters and Evidence concerning that Land whereof she asketh dower but none other save the Heir can withhold dower for this cause No Dower It ought not to be unknown also of what things she may demand dower and of what things not of Lands Messuages Advowsons Rent-charge Rent-services or Seigniories in gross or otherwise of Villains of Commons certain of Estovers certain of Milles and Offices or of the profit of them she is dowable but of Commons and Estovers saus number also of Annuities of Homages of things of Pleasure as of Service of paiment of Roses and semblable she shall not be endowed Note There be yet two other kinds of Dower Dowment ex assensu Patris the one is called Dowment ex assensu patris that is to say by the assent of the father and the other is called Dowment de la plus beale part that is to say of the fairest part Dowment ex assensu patris is when the Father is seized of Lands in fee simple and his Sonne which is Heir apparant indoweth his Wife at the Church door when he is espoused of parcel of his Fathers Lands with the assent of his Father in writing testifying the same assent if in this case her Husband die she may forthwith enter into the Land so assigned unto her without further procurement of process of Law although the Father of her said Husband be yet alive and in actuall possession of the Land but if she thus do and
actually entred into them for notwithstanding that he is not in actuall possession yet he is possessed in the Law that is to say Haereditae quid sit in the eye and consideration of the Law he is deemed to be possessed for as much as he is Tenant for every mans Action that will sue for the said Lands or else assuredly there should ensue an intollerable inconvenience as we shall more copiously open in another place Ye shall furthermore understand that this word Inheritance is not only to be accommodate and applied to that which cometh by descent or succession from a mans ancestors or predecessors but also to every purchase in fee-simple or fee-tayle And note That a man can have no larger or greater estate then fee-simple CHAP. XIV Of Fee-Tayle YE shall understand that before a certain Statute called the Statute of West second West 2. Chap. 1. there was no estate tayle but all was fee-simple either purely that is to say without condition or at the least way conditionally Division as appeareth by the presence of the said Estatute but now sithence the promulgation of the Estatute divers forms of Estates Tayle have risen Fee-tayle is when it is prescribed and limited in the gift what sort of Heirs and by whom engendred shall inherit As for example I give Lands to a man and to his Heirs and go no further this is a fee-simple but if I make a limitation and adde of his body begotten now it is a fee-tayle that is to say a fee or Inheritance limited prescribed determinate or assigned So that if I give Lands to a man and to his Heirs he hath fee-simple but if I give Lands to him and to his Heirs of his body lawfully begotten he hath but a fee-tayle forasmuch as I appoint limit prescribe and express what Heirs they shall be and for lack of such Heirs the gift shall be expired and worn out and the Land shall be reverted again to the giver or his Heirs But ye must observe and Note That there be two kinds of fee-tayle there is a generall tayle and there is a speciall tayle Fee-taile generall is where Lands be given to a man and to his Heirs of his body begotten without any mentioning and expressing by what woman they are begotten And therefore if a man be Tenant in the generall tayle of Lands Generall taile and taketh a wife and hath Issue by her and she dieth and afterwards he taketh another wife of whom he hath also other Issue by her either of these Issues is inheritable to this Land entayled But if I express in the gift by what woman the Heirs shall be procreated and ingendered then it is an especiall tayle as for example to make the thing plain Especiall taile If Lands be given to a man and to his Heirs of his body lawfully begotten by Margaret his wife this is an especiall tayle for the Issue of him begotten by another woman shall never inherit by force and vertue of the tayle Likewise it is if Lands be given to a woman and to the Heirs of her body lawfully begotten and shew not by what man this is a generall tayle but if I go forward and say by such a man her husband then it is an especiall tayle Also if I give Lands to a man and to his wife and to the Heirs of their two bodies lawfully begotten this is an especiall tayle as well in the husband as in the wife Semblable it is if a man giveth Lands to another man with his Daughter or Kinswoman in frank marriage Frank-marriage this word frank marriage implieth an estate tayle speciall and in this case as well the man as the woman hath an an estate in the speciall tayle But if I give Lands to a man and to such a woman and to his Heirs that he hath begot of her here the woman hath an estate but for terme of her life and the Husband an estate in the especiall tayle and likewise it is in the womans behalf as if I give Land to a man and to his wife and to her Heirs of her body by her said Husband engendred he hath an estate but for terme of life and she an estate in the speciall tayle but in both cases if I had said to the Heirs and not to his or her Heirs then should either of them have had an estate in the speciall tayle because this word Heirs is as well referred to the one as to the other Ye shall also understand That if Lands be given to a man Descent by Heir males and to the Heirs males of his body this is an estate tayle and in this case the Heir female shall never inherit Also if a man hath Issue and dieth and Lands be given to him and to his Heirs of his body begotten this is a good estate tayle although the father were dead at the time of the gift Finally it is to be noted that of Lands which a man hath in fee-simple the possession of the Brother shall cause the Sister-germaine that is to say the Sister both by Fathers side and Mothers to inherit and in this case the Brother by the half-blood shall not inherit as heretofore was said but of Lands which be entailed Otherwise it is therefore if a man be seized of Lands in the generall tayle and hath issue by his first wife a Sonne and a Daughter and also a Sonne afterwards by another wife and dieth and the eldest Sonne entreth into the Lands and after dieth the Sister-germaine to the eldest Sonne shall not have the Land but the younger Brother of the half-blood because whosoever shall inherit Land or any other hereditaments in tayle must claim them as next and immediate Heir not to him that dieth last seized of the Lands but to him to whom the Lands were first given unto whom in the case before remembred is the Sonne and Heir and not the Daughter Thus ye shall mark a great diversity between the form of succession in the Lands of fee-simple Diversitie and the form in fee-tayle CHAP. XV. Tenant after possibility of Issue extinct WHen Lands Tenements or other Hereditaments be given to a man and to his wife and to the Heirs of their two bodies lawfully begotten if in this case either of them chance to die before they have Issue between them Dispunishable of waste he or she that overliveth is still Tenant in tayle but without possibility of any Issue that can be Heir to these Lands or hereditaments thus entayled and for this cause he or she thus over-living is called Tenant in Tayl after possibility of Issue extinct for in such a Tenant is all possibility of Issue that may be inheritable to these Lands by force of the gift in tayle utterly extinct or quenched and by his or her death the estate tayle shall expire cease and be abolished for ever and shall revert and turn again to the giver or donor from
the Law Now shall we speak somewhat of them that either joyntly or severally come to Lands Tenements or other Hereditaments by their own purchase act procurement and working and of these they that come to them by joynt title way or colour be called joyntenants but they that come by severall titles wayes or colours to Lands or Tenements be named Tenants in common So then if a man being seized of Lands or Tenements Tenants in common or other Hereditaments shall thereof enfeoff two three four or more to have and to hold to them in fee-simple fee-tayle or for terme of their lives or for terme of anothers life these persons so enfeoffed and seized be called Joyntenants also also if two or more do expell and disseize another man of any Lands or Tenements to their own behoof and use these disseizors and wrong doers are now become Joyntenants because by their own act they come joyntly to this Land but if they do disseize another man to the use only of one of them in this case they be not Joyntenants but he to whose use the disseizin is made is Tenant alone of the same and the others have nothing in the tenancy but be called aydours or coadjutors to the disseizin And ye shall understand Disseisin Survivour taketh place That a Disseizin is properly where a man entreth into any Lands or Tenements there where his entry is not lawfull and putteth out him which hath the freehold of the same And ye shall further know That the nature of Joyntenancy is that he which surviveth and overliveth the other shall have to himself alone the whole and entire tenancie according to that estate which he should have had if the joynture had been continued as for example three Joyntenants be of Lands in fee-simple and the one half hath Issue and die in this case the two which do over-live their fellow shall have the whole Lands between them and the Issue of him that is departed getteth nothing and if the second Joyntenant hath Issue also and die the third which hath overlived them both shall now have and enjoy the whole to him and to his Heirs for evermore But otherwise it is of Coheirs Diversitie which in our Law are called Parceners for if there be three such Coheirs and Parceners and before any partition made the one have Issue a Sonne or a Daughter and dieth her portion shall descend and fall to his child and shall not runne amongst the other joynt-heirs or Coparceners howbeit if such Parcener or Coheir had died without Issue then should his portion have descended to his Coheirs but how not by force of surviver or overliving which in Latine is ealled jus acrescendi but by very descent for where any of the Coheirs die without Issue who can be Heir to him or her so dying but the other Coheirs to him or her so dying or the rest of the Coheirs if there be many And like as this right of survivor or overliving holdeth place amongst Joyntenants of Lands and Tenements so in like manner it holdeth place amongst them which have joynt estate or possession with others of Chattels whether they be reall or personall as for example if a Lease of Lands or Tenements be made to many for terme of certain years the overliver or overlivers shall have the whole during the terme by force of the same Lease Joyntenants of reall and personall goods so of Chattels personall if an Horse Oxe grain or other such personall Chattell be given to many he which overliveth shall have the same alone in semblable wise it is of Debts and duties for if an Obligation be made to many for one debt and of some other Covenants and Contracts the Law is likewise so Also some Joyntenants may be which may have joynt estate and be Joyntenants for terme of their lives Joyntenants of severall Inheritances and yet have severall Inheritances as where Lands be given to two men and to the Heirs of their two bodies engendred in this case these two persons have joynt estate for terme of their two lives and yet they have severall Inheritance for if the one have Issue and die the other that surviveth shall have all by force of the survivour for terme of his life and if he that surviveth hath also Issue and die then the Issue of the one shall have the half of the Lands and the Issue of the other shall have the other half and they shall hold the Land between them in common and shall not be Joyntenants but Tenants in common Tenants in common and the cause and reason why such Donees in such cases have a joynt estate for terme of their lives is for that at the begining the Lands were given to them two which words without more saying make a joynt estate to them for terme of their lives for if a man will let Land to another by Deed or without Deed not making mention what estate he hath and of this maketh livery of seisin in this case the Lessee shall have an estate for terme of his life and if he have no livery of seisin he is Tenant at will and so forasmuch as the Lands were given unto them they have a joynt estate for terme of their lives but the cause why they have severall Inheritance is this for that they cannot by possibility have an Heir between them engendred as a man and a woman may have wherefore the Law will that their estate and their Inheritance shall be such as reason will after the form and effect of the words of the gift and that is to the Heirs that the one engendred of his body by and of his Wives and to the Heirs that the other engendreth of his body by any of his Wives so it behoveth by necessity of reason that they have severall Inheritances and in such case if the Issue of one of them after the death of them both doth die so that he hath no Issue alive of his body engendred then the Donor which gave the Land or his Heirs may enter in the half as in his reversion though the other hath Issue alive and the cause is that forasmuch as the Inheritances be severall therefore the reversion in the Law is severed and the survivour of the Issue of the other shall hold no place to have the whole and as it is said of Males in the same manner it is where Lands be given to two Females and to the Heirs of their two bodies begotten Also if Lands be given to two Survivor holdeth no place and to the Heirs of one of them this is a good contenancy and the one hath a freehold and the other hath a fee-simple and if he which hath fee-simple die he that hath the free-hold shall have the whole by the Survivor for term of his life And if these two Joyntenants joyn in a gift in the tayle to a stranger reserving a Rent to him that hath an estate
but for his life this reservation is void to make a Tenure likewise it is where Tenements be given to two and the Heirs of the body of one of them engendred the one hath a free-hold and the other fee-fee-tayle Note Rent-charge granted by a joyntenant If two Joyntenants be seized of an estate of fee-simple and the one granteth a Rent-charge by his deed to another out of that which to him belongeth in this case during the life of the graunter the Rent-charge is good and effectuall but after his decease the Rent-charge is void as to charge the Lands for he that hath the Land by the Survivour shall hold all the Land discharged the cause is for that he that surveieth claimeth to have the Land by the Surviour and not by discent of his fellow Diversitie but otherwise it is of Parcener or Co-heirs for if there be two Parceners in fee-simple and before any partition be made the one chargeth that that to him belongeth by his deed of a Rent-charge and dieth without Issue here that which to him belongeth descendeth to the other Parcener and in this case the other Parcener shall hold the Land charged because he cometh to the half by descent as heir Also if there be two Joyntenants in fee-simple within one Borough where the Lands and Tenements within the same Borough be devisable by Testament If the one of the said Joyntenants devise that which to him belongeth by Testament and die Divise by Testament this devise and legation is void And the cause is for that no devise may take effect till after the death of the Testator which bequeathed and devised the same and by his death all the Land incontinent cometh by the Law to his fellow that Surviveth by the Survivor which neither claimeth nor hath any thing in the Land by the devise but in his own right by the Survivor after the course of the Law and for this cause such a devise is void But otherwise it is of Parceners A ground of the Law seized of Tenements devisable in such case of devise for the cause above remembred and it is commonly said that every Joyntenant is seized of the Land that he holdeth joyntly per my et per tont that is throughout and by all and this is as much to say that he is seized by every parcell and by all which saying is true for in every parcell and part and throughout all the Lands and Tenements he is joyntly seized with his fellow and therefore if the one Joyntenant make a Feofment to his companion that is void because he can make no Livery of seizin to him Diversity Also if two joyntenants be seized of certain Lands in fee-simple and the one letteth that that to him belongeth to a stranger for the term of Fourty years and dyeth within the term in this case after his death the Lessee may enter and ocupy the half to him letten during the said Term though the Lessee never had possession of it in the life of the Lessour by force of the Lease Diversity between a grant of a Rent and Lease and the difference between the case of the grant of a Rent-charge and this case is this that in the grant of Rent-charge by a joyntenant the Lands or Tenements abide alway as they were afore without that that any hath right to have parcell of the Tenements but themselves and the Tenements abide in such pitty as they were before the Charge but where a Lease is made by a Joyntenant to another for term of years incontinent by force of the Lease the Lessee hath right in the same Land that is to say of all that that to his Lessour belongeth by force of the same Lease during his term and if the Lessor in this case die the other joyntenant shall have the Rent or Term during the said Term because the reversion is come to him by Survivor Finally if a joynt estate be made of Land to the Husband and Wife and to the third person in this case the Husband and the Wife have not in the Law in their right but the half and the third person shall have as much as the Husband and the Wife have that is to say the other half and the cause is for that the Husband and Wife be but as one person in the eye of the Law and it is here in like case as if an estate be made to two joynt-Tenants where the one hath by force of the Joynture the one half and the other the other half in semblable wise it is where an estate is made to the Husband and Wife and to other two men in this case the Husband and the Wife have not but the third part and the other two men the other two parts Also if two or three together disseiseth another of Lands and Tenements to their own uses then such disseisors be called Joyntenants More shall be said of this matter touching Joyntenants in the next Chapter CHAP. XVIII Tenants in Common TEnants is Common as I said before be they that have Lands or Tenements in fee-simple fee-tayle or for term of life which have such Lands and Tenements by severall Titles and not by one joynt Title and none of them knoweth that which is severall to him and in this case they ought by the Law before partition made between them to occupy such Lands and Tenements in common and undevided and to take the profits in Common and because they come to such Lands and Tenements by severall Titles and not by one self joynt Title and their ocupation and possession in the same is among them in Common they be called Tenants in Common or Tenants pro indiviso as for example If a man Enfeoff two Joyntenants in fee-simple and the one of them alieneth that that to him belongeth to another in fee now the other Joyntenant and he to whom the Alienation was made be Tenants in Common for that they be seized of such Tenements by severall Titles for the one cometh to the one half by the Feoffment of the Joyntenant and the other hath the other half by force of the first Feoffment made to him and to his first fellow and so they be in by severall Titles and by severall Feofments And it is to wit Diffinition of fee only that when it is said in any Book that a man is seized in fee without more saying or addition it shall be understood fee-simple for it shall not be understood by such a word in fee that a man is seized in fee-tayle except there be put in it such addition in tayle Also if three joyntenants be Joyntenants and the one of them alieneth that which unto him belongeth to another in fee in this case the alience is Tenant in Common with the other two Joyntenants But yet the other two Joyntenants be seized of the two parts Joyntly and of these two parts the Survivor between them holdeth place
The Exact Law-giver Faithfully Communicating To the skilfull The firm Basis and Axioms of their Profession To the ignorant Their Antient and undoubted Birthrights and Inheritances Being as a Light unto all the Professors of the Law as well Counsellors as Atturneys Clerks Soliciters Scriveners c. OR A MANV-DVCTIO Or a Leading as it were by the hand all such both of the Gentry or Laity as desire to be Instructed how to gain or preserve their Estates from the hands of their cruell Adversaries to the Perfect Knowledg of the Common and Statute Law of this Nation Cicero lib. 1. de Leg. Ratio cum est in mente hominis confirmata conferta lex est lex est radius divini luminis LONDON Printed for Thomas Bassett in St Dunstans Church-yard in Fleet-street 1658. To the READER THis Book being an Antient Manuscript coming to my hands which through my own small skill in the Law perceiving it to be an Ingenious thing yet desiring to bring it to the Test I do assure you the grave Judgment of such as were profound in the Knowledg of the Law with me not only approved of it but highly Commended it for an Ellaborate and Learned Treatise adjudging it a thing worthy to be Published for the good of the whole Nation These lively Characters of the goodness of the Book agreeing with and as wonderfully relishing with my Genious being very ambitious to do something that might manifest to my self the filial love I bear unto my Country I resolved to publish it but incognito esteeming him the Charitablest man that dispenceth his Larges freely but privately Another Reason that I do not attest it with my Name is because I am no waies greedy of the worlds applaus adjuding it as little worth And if it be objected why I do not set my Friends Name to it whose Script it was I make this my Answer and Apology That I am not of their minds who to get themselves or their Friends a great applaus with the common people matter not what wiles or crafts they use so that they can any wise bring their device about But of the contrary Opinion am I detesting such absurdities who as I must say the truth do acknowledg that I am not throughly convinced in my mind that my Friend in whose Library I found this Script did make or Compose it and therefore I would not presume to affix his Name to any thing that should not be absolutely his and the smallness of the thing besides would have raised a Quaere fi I should have had such a thought Howbeit being carried with a great desire of hearing Commendations of the thing and thereby to be greatly delighted imagining the Praises of it to be the just Deserts of my worthy Friend and supposed Author I was necessitated as it were what by my own desire to do my Country good and what by the great Commendations severall Eminent Practisers of our Law gave of it to cause it to be put in print which being done I represent it to the open View of all men wishing them Candidly to peruse it not doubting but they will find it answer their desires to their great Use and Benefit But knowing on the other side that many wil be apt to spurn if they find the least Iota wanting I wish them to remember Nemo nascitur sine crimine I crave the favourable Construction of all ingenious Persons and for the Malevilous and Caterpillers of our Age which will not be content with any thing I leave as I find Vale. THE CONTENTS CHAP. I. OF the Antiquity Excellency and Perfection of the Common Laws of England page 1. CHAP. II. Of the Professors of the Law p. 9. CHAP. III. The Definition of Law p. 12. CHAP. IV. A Division of Estates p. 14. CHAP. V. Tenant for Term of Years p. 15. CHAP. VI. Tenant at Will p. 17. CHAP. VII Tenant by Copy of Court-Roll ibid. CHAP. VIII Of Freeholds p. 24. CHAP. IX Tenant for Term of Life p. 26. CHAP. X. Tenant by the Courtesie p. 28. CHAP. XI Of Tenant in Dower p. 31. CHAP. XII A Division of Inheritance p. 38. CHAP. XIII Of Fee-simple p. 39. CHAP. XIV Of Fee-tayle p. 47. CHAP. XV. Tenant after possibility of Issue Extinct p. 52. CHAP. XVI Of Perceners or other Coheirs p. 54. CHAP. XVII Of Joyn-tenants p. 60. CHAP. XVIII Tenants in Common p. 70. CHAP. XIX Of Chattels p. 84. CHAP. XX. Of Partition to be made by Joyntenants and Tenants in Common p. 87. CHAP. XXI Of Conditions p. 89. CHAP. XXII How strangers shall take advantage of Conditions p. 96. CHAP. XXIII Livery of Seisin and Atturnment p. 98. CHAP. XXIV Of Service p. 104. CHAP. XXV Knight Service p. 105. CHAP. XXVI Of Ward Marriage and Relief p. 111. CHAP. XXVII Service of Castle-Guard p. 117. CHAP. XXVIII Of Grand Sergeanty p. 118. CHAP. XXIX Petty-Sergeanty p. 121. CHAP. XXX Homage Ancestrell p. 122. CHAP. XXXI Of Liveries p. 125. CHAP. XXXII How Heirs ought to sue their Livery p. 126. CHAP. XXXIII Soccage p. 134. CHAP. XXXIV Frank Almoign p. 136. CHAP. XXXV Of Burgage p. 140. CHAP. XXXVI Of Villenage or Bond-Service p. 142. CHAP. XXXVII Of Antiet Demesne p. 148. CHAP. XXXVIII Of Rents p. 151. CHAP. XXXIX What remedy a man hath to recover his Rent when it is behind p. 160. CHAP. XL. How Avowries ought to be made of Rents and Services p. 165. CHAP. XLI For the assurance of Farmers p. 166. CHAP. XLII Of fulfilling of Recoveries by Farmers p. 169. CHAP. XLIII Of Tithes and how they shall be recovered p. 171. CHAP. XLIV Of Mortuaries p. 173. CHAP. XLV Of discontinuance 175. CHAP. XLVI How Recoveries by collusion against Tenants for terne of life is no discontinuance p. 179. CHAP. XLVII How wrongfull diseisin is no descent in the Law p. 181. CHAP. XLVIII Of limitation of prescription p. 182. CHAP. XLIX Of Fines p. 184. CHAP. L. Of Testaments or Last-Wills p. 187. CHAP. LI. The difference between Executors and Administrators p. 189. CHAP. LII For probate of Testaments p. 203. CHAP. LIII How Lands and Tenements may be by Testament or otherwise disposed of Enacted An. 32. H. 8. p. 206 CHAP. LIV. Matrimony and Marriage p. 212. CHAP. LV. Of Vouchèr p. 213. CHAP. LVI Voucher and Counter-Plea of Voucher p. 214. CHAP. LVII Of Warranty p. 220. The Exact Law-giver CHAP. I. Of the Antiquity Excellency and Perfection of the Common-Laws of England THere is no Jewel in the world comparable to Learning The Excellency of the Common Law of England no Learning so excellent both for Prince and Subject as the knowledge of Laws and no knowledge of any humane Laws so necessary as of those under which we are subject And if we respect the goodness of Law in general we shall find none so necessary for all Estates and for all Cases concerning Goods Lands or Life as the Common Laws of England And such is the judgement of the
Nation There is no Nation in the world sayes a learned Judge that hath a course of Justice so speedy and withall so commodious and easie for the Subject as our Trials of Assize and nisi prius are for Justice the Lady and Queen of all moral vertues makes her progress twice in a year throughout every Country in the Land so that the Fountaines of Justice are conveyed even home as it were to our very doores And now having shewed you the Antiquity Eminency and Perfection of the Common Laws of England I shall in the next place say something of the learned Professors thereof CHAP. II. Of the Professours of the Law AS I have demonstrated unto you by infallible Reasons and sufficient Witnesses the worthiness of our common Law Of the Professors of the Law dispersed the grand Objections which have risen against it so shall I in this place strive to vindicate the learned Professours thereof from the unjust calumnies aspersed against them And First of all It is objected against them as it was against the Law it self that they are the cause of long and tedious Suites in that they wittingly and willingly take upon them bad Causes knowing them to be unjust when they are first consulted with and retained And that a bad Cause never wants a Councellor to defend it and such like To which I answer that the learned Professor may be able to give judgment upon most Causes at their first commencement and may know right from wrong this I say they may do and yet not wittingly maintain a bad Cause for it is to be considered that the Counsellor hears but one mans Cause only and to be sure the Clyent will make his own Cause good How then should the learned Counsellor be able to distinguish right from wrong untill it be known what can be alledged and proved by either party how then can it be said that the Councell maintains an unjust Cause when he knows not how the Case will be till he had made his utmost defence Secondly This Objection will be invalid if we consider how tender our Judges are of the reputation of the profession of the Law by branding as it were with infamy all such as give sinister Councill or too boldly defend a bad Cause so that seldom or never are such permitted to rise to any higher degree in the Law and this is the testimony of one of our famous Judges and for the Attorneys or practisers they are commonly cast over the Barr and detained from practice upon their default such great care is taken to suppress dishonesty amongst the professors of so Honourable a Science So now seeing that there is no just Cause of such aspersions which I hope few can deny yet if they do I am sure they must allow That all men at all times and in all places do stand in need of justice which is the Law for Law is but the rule of justice and without her support the Noble man cannot maintain his Honour nor the subject his liberty nay without her no man living either virtuous or vicious can enjoy his life or any thing that makes his life delightfull If the Law then merits so much of all mankind in generall for that it is the fountain of all our benefits what do the professors of this Law then deserve which draw these benefits out of this fountain and convey the same to every one of us for the Law being only a rule to measure the actions of men the rule cannot measure unless applied by the hand of the Architect and Cicero defining the Law sayes It is mutus Magistratus even dumb and speaks not but by the tongue of a learned and eloquent Lawyer deaf and heareth no complaints but by the ear of a grave and potent Judg blind and seeth not but by the eye of a watchfull and diligent Officer so that without these Interpreters of the Law viz. the learned Professors thereof there can be no use or application of the Law and consequently the Law and Justice it self cannot consist without them Thus have I briefly treated of the Law and Lawyers answering to all the Objections that might be brought against the one or the other In the next place I will lay before you the definition of the Law that from thence we may proceed to the structure it self CHAP. III. The Definition of LAW LAw is defined by our Ancestors and others What Law is to be that which commands those things which are to be done and forbids their contraries 2. To be the rule of all morall Acts obliging to what is right and is the conservation of Justice which is a constant and perpetuall will to give every one his own 3. The precepts of Law are as Bracton saith to live honestly wrong no man give every man his own and the like 4. The Law is the direction and administration of Justice and Injustice is as the Emperour Justinian saith a constant and permanent will to render every person his right and duty 5. Demosthenes the renowned Orator defines it to be the gift of God as well as the Decrees of Learned men and so likewise Chrysippus an excellent Philosopher begins his book of Laws The Law sayes he is King of all as well divine as humane Offices the President and Councellor of all things honest or dishonest Captain and Ruler of the just and unjust and is of severall natures as well the commander of what they ought to do as the forbidder of what they ought not to do it is that only which distinguisheth right from wrong for ubi Lex non distinguit nec nos distinguere debemus Thus you see how joyntly and severally our most famous Ancestors have defined Law unanimously agreeing That it is a fortress for the weak to retire unto a sanctuary for the oppressed to fly unto restraining the boldness of the insolent tying as it were with manacles the hands of the potent and like Orpheus Harp charming the fierceness of the Lyon or Tyger so as the poor Lamb may lie in safety by them And now having thus moderately discoursed of the Law and the Professors thereof I shall henceforward speak of severall fundamentall parts both of the Common and Statute Law of this Nation CHAP. IV. A Division of Estates YOu shall therefore understand that whosoever hath any Estate in Lands or Tenements either he hath in the same only a Chattell or a Free hold or an Inheritance Chattell if he hath an Estate but for terme of certain years or at his Landlords will then it is called a Chattell if for terme of his life or for any other mans life it is called a Free-hold Free-hold and if he hath to him and to his heirs in fee-simple or in taile Inheritance then he hath an Estate of Inheritance CHAP. V. Tenant for terme of Years TEnant for terme of years is he to whom Lands or Tenements be let for terme of certain years
some such Tenants have an Inheritance according to the custome of that Mannor yet in very deed they are but Tenants at the will of the Lord for as some men think if the Lord will expell them and put them forth they have no remedy at all but to sue unto their Lord by way of Petition desiring him to be a good and gracious Lord unto them for if they might have any remedy by the Law then should they not be called say they Tenants at the will of the Lord after the custome of the Mannor but other men of no less Learning and prudence have been of contrary judgment as Lord Brian Chief Justice in the time of King Edward the fourth whose opinion was alwayes that if such a Tenant by the custome paying his Services be ejected and put forth by his Lord without cause reasonable Action of Trespass he may very well bring and maintain an Action of Trespass against his Lord at the Common Law as appeareth Termino Hillarij An. 21. E. 4. Also Lord Danby Chief Justice likewise was of the same judgment as appeareth Termino Mich. An. 7. E. 4. where he saith That the Tenant by the custome is as well Inheritable to have his Land after the custome as is he that hath a free-hold at the Common Law but the determination of this question I remit to my great Masters which can lose the knots and ambiguities of the Law forasmuch as yet still of this matter Causidici certant adhuc sub judice lis est Also ye shall understand that the usage of some Mannor is when the Tenant will surrender his Land to the use of another that he shall take a Wand or a Rod in his hand and deliver it to the Steward of the Court and the Steward shall deliver the same Wand in name of Seisin to him that shall take the Land and such a Tenant is called Tenant by the Verge Divers other customs there be of surrendring of Copyhold Lands which here for tediousness I will omit And forasmuch as Tenants by custome of the Mannor have by the course of the Common Law no free-hold therefore they be called Tenants of base Tenure Base Tenure Also if such a Tenant letteth to farme his Copyhold Land for longer time then a twelve moneth and a day without the Lords licence it is a forfeiture of his Land to his Lord. And know ye that if this Tenant fell any Timber that groweth upon the Land but only for the reparation of the same this is Wast and a forfeiture of his Copyhold Hitherto have I treated of the first member of our division that is to wit of Chattels for as I said all Leases for terme of years and at will be accounted in the Law but as Chattels and be comprised under that name save that these be called Chattels reals whereas Kine Oxen Chattell reall and personall Horses Money Plate Corn and such like be called Chattels personals Now we will proceed to the explanation of the second member that is to say of Freeholds CHAP. VIII Of Freeholds FReeholds or Frank-tenements a man may have in sundry wise for either he is seized for terme of his own life or for terme of another mans life if he be seized for terme of his own life either he hath gotten such estate by way of Purchase or else the Law hath intituled him thereunto I call it by purchase whether he cometh unto it by his own bargaining and procurement or by the gift of his friend and I call it by the operation of intituling of the Law when a man marrieth a woman that is an inheritrix and hath issue by her Tenure by the Courtesie and she dieth now shall he have the Lands during his life by course of the Law and shall be called Tenant by the courtesie of England Likewise if a man be seized in fee-simple or fee-fee-taile of Lands and taketh a wife and he dieth the Law giveth unto the wise the third part of her husbands Lands for terme of life Tenant in Dower and she shall be called Tenant in Dower CHAP. IX Tenant for terme of Life TEnant for terme of Life is he that holdeth Lands or Tenements for terme of his own life or for terme of anothers life howbeit the most frequent and common manner of speaking is to call him that hath an estate for terme of his own life Tenant for life and him that hath an estate for terme of anothers life Tenant for terme dauter vie that is to say Tenant for terme of anothers life Ye shall note that like as he that maketh the Lease is called the Lessour and he to whom the Lease is made is called the Lessee so he that maketh the Feoffment is called the Feoffer and he to whom the Feoffment is made the Feoffee Also if the Tenant for terme of life or Tenant for terme of another mans life doe waste Waste the Lessour or he in the reversion shall maintain very well an Action of Waste against him and shall by the same recover trebble damages Finally Ye shall understand that by an Act of Parliament made in the 27. year of our Soveraign Lord King Henry the eight it is enacted That no Freehold nor estate of Inheritance shall pass nor take effect by reason of any bargain and sale except the same be made by writing indented sealed and enrolled in one of the Kings Majesties Courts at Westminster or else within the County where the Land doth lie before the Custos Rotulorum and two Justices of Peace and the Clerk of the Peace of the same County or two of them at least of which the said Clerk shall be one and that such enrolment be made within six moneths after the date of such writing and for the enrolment of every such writing where the Land comprised therein is not above the yearly value of Fourty shillings they shall take two shillings that is Twelve pence to the Justices and Twelve pence to the Clerk and if the Land be above the yearly value of Fourty shillings then they shall take Five shillings that is Two shillings and six pence to the Justices and Two shillings and six pence to the Clerk which shall enroll and ingross sufficiently in parchment such Deed and writing and at every years end he shall deliver the same to the Custos Rotulorum of the same County to remain in his custody among other Records of the same County so that the parties resorting thither may see them provided that this extend not to any Tenements or Hereditaments lying within any City or Town Corporate wherein the Majors Records or other Officers have authority or have lawfully used to enroll any Evidences or writings within their Precinct CHAP. X. Tenant by the Courtesie TEnant by the Courtesie of England is he that hath married a Wife inherited and hath had issue by her and she is dead in this case the Law of England permitteth and
Also if there be two Joyntenants in fee and the one giveth that that unto him belongeth to another in the tayle the Donee and the other Joyntenant be Tenants in Common but if the Lands be given to two men and to the Heirs of their two bodies engendred the Donees have a joynt estate for term of their lives and if each of them have Issue and dye their Issues shall hold in Common Also if Lands be given to two men to have and to hold the one half to the one and to his Heirs and the other half to the other and to his Heirs they be Tenants in Common Also if a man seized of certain Lands enfeoffeth another in the half of the same Land without any speech of assignement or limitation of the same half in severalty at the time of the Feofment then the Feoffee and the Feoffour shall hold their parts of the Land in Common And as it is of Tenants in Common of Lands or Tenements in fee-simple fee-tayle even so it is of Tenant for term of life Therefore if two joyntenants be in fee Joyntenants and the one letteth to a man that that unto him belongeth for term of life and the other Joyntenant letteth that which to him belongeth to another for terme of life also these two Lessees be Tenants in common for terme of their lives Also if a man let Lands to two men for terme of life and he to whom the one granteth all his estate to another then that other Tenant for terme of life and he to whom the grant is made shall be Tenants in common during the time that both the Lessees be alive Note If there be two Joyntenants in fee and that one letteth that that unto him belongeth to another for terme of life the Tenant for terme of life during his life and the other Tenant that did not let be Tenants in common And upon this Case a Question may arise as thus Let the Case be that the Lessour hath Issue and dieth living the other Joyntenant his fellow and living the Tenant for terme of life the Question is Question Whether the Reversion of the half that the Lessour hath shall descend to the Issue of the Lessour or whether the other Joyntenant shall have it by the survivour or no And some have said that the other Joyntenant shall have the Reversion by the survivour forasmuch as when the Joyntenants were joyntly seized in fee-simple though one of them made an estate of that that unto him belongeth for terme of life and though he hath severed the frank-tenement of that that to him belongeth by the Lease yet he hath not severed the fee-simple But the fee-simple abideth to them joyntly as it was before and so it seemeth unto them that the other Joyntenant which surviveth shall have the Reversion by the survivour But other have thought the contrary and this is their reason when one of the Joyntenants letteth that which unto him belongeth to another for terme of life by such Lease the Franktenement is severed from the Joynture so that the reversion that is dependant upon the same Frank-tenement is severed from the Joynture furthermore if the Lessour had reserved to him a yearly Rent upon the Lease the Lessour only should have the Rent which is a proof that the reversion is only in him and that the other hath nothing therein Also if the Tenant for life were impleaded and make default after default Recie the Lessour shall be only hereupon received to defend his right and not his fellow which proveth the reversion of the half to be only in the Lessour and so consequently if the Lessour die living the Lessee for terme of life the reversion shall descend to the Heirs of the Lessour and shall not come to the other Joyntenant by the survivour after these mens opinions yet it is doubtfull But in this case Quere if the Joyntenant that hath the franktenement have Issue and die living the Lessour and the Lessee then it seemeth that the Issue shall have the half in his demesne as of fee by descent forasmuch as the franktenement may not by nature of the Joynture be annexed to a reversion and it is certain that he that made the Lease was seized of the half in his demesne as of fee and that none shall have any Joynture in his franktenement so that this shall descend to his Issue If three Joyntenants be and the one releaseth by his Deed to one of his fellows all the right he hath in the Land Release then hath he to whom the Release is made the third part of the Lands by force of the Release and he and his fellow shall hold the other two parts joyntly and as to the third part that he hath by force of the Release he holdeth it with himself and his fellow in common And it is to wit that sometime a Deed of Release shall take effect to put the estate of him that made the Release in him to whom the Release is made as in the case aforesaid Also if a joynt estate be made to the Husband and Wife and to a third person and the third person releaseth his right that he hath to the Husband then hath the Husband the half which the third person had and the Wife of this hath nothing semblably if the third person had released to the Wife not naming the Husband in the Release then should the Wife have the half that the third person had and the Husband nothing of this but in the right of his Wife because such Release shall enure to put the estate in him to whom it was made of all that that belongeth to him that made the Release Again In some case a Release shall enure and serve to put all the right that a man hath that made that Release in him to whom it is made As a man being seized of certain Lands is disseized by two disseizors if the person disseized by his Deed release all his right to one of the disseizors then he to whom the Release is made shall have and hold all to him alone and put out his fellow out of the occupation of it And the cause is Disseisors for that the two disseizors were seized by wrong by them done against the Law and when one of them getteth the Release of him that hath right to enter this right resteth in him to whom the Release is made and in such plite as if he that had the right had entered and enfeoffed him of the same and the cause is for that he that before had an estate by wrong hath now by the Release a rightfull estate And in some case a Release shall enure and take effect by way of extinguishment Release by way of extinguishment and such a Release shall help the Joyntenant to whom the Release was not made as well to him to whom it is made as if a man be disseized and
the grant is made and the other shall hold and Occupie in Common Also if two Joyntenants have the Ward of the Body Joyntenants of a Wa d. and of the Lands of an Heir within age and the one of them granteth to another that that unto him belongth of the same Ward then he to whom the grant is made and the other that granteth not shall have and hold it in Common Of Chattels Personalls as if two have a joynt estate either by gift or by buying of an Horse or of an Oxe or such like and the one of them granteth that that to him belongeth here shall the grantee and he that granteth not have and possess such Chattels personall in common And in such case where divers persons have Chattels reals or personals in common and by divers Titles if one of them die the other that surviveth shall not have his fellows part by the survivour but the Executors of him that dieth shall hold and occupy it with him that surviveth in like form as their Testator did or ought in his life forasmuch as their rights and Titles were severall also in the Case aforesaid if two have an estate in common for terme of years and the one doth occupy all and put the other out of his possession and occupation then shall he that is put out have against the other a Writ de Ejectione firmae for the half A Writ de ejectione firmae in semblable manner where two hold the Ward of Lands or Tenements during the nonage of a Childe if one shall put out the other of his possession he that is out shall have a Writ Ejectione custodiae De ejectione custodiae of the half because these things be Chattells Realls and may be opportionted and severed but no Action of Trespass lieth for one against the other as for example quare olausum fregit herbam suam conculcavit consumpsit nor such like Actions forasmuch as each of them may enter and occupy in common but if two be possessed of Chattels personall in common by divers Titles as of an Horse an Oxe or a Cow if the one take it all to himself out of the possession of the other the other hath none other remedy but to take it again from him that hath done him the wrong when he may see his time In like manner of Chattels realls which may not be severed as in the case aforesaid where two be possessors of the wardship of the body of a Childe within age if one of them shall take the Childe out of the possession of the other the other hath no remedy by any Action at the Law but to take the Childe out of the others possession when he seeth his time Finally ye shall understand Form of Pleading That when a man in pleading and declaring his Cause will shew a Deed of Feoffment made unto him or a gift in fee-tayle or a Lease for terme of life of any Lands or Tenements he shall use his termes in this wise and say By force of such Feoffment Gift or Lease he was seized c. But where a man will declare or plead a Lease or Grant made unto him of a Chattell reall or personall then he shall say By force of which he was possessed CHAP. XX. Of partition to be made by Joyntenants and Tenants in Common enacted by two Statutes made the one in An. 31. H. 8. and the other in 32. H. ALl Joyntenants and Tenants in Common of any estate of Inheritance in their own rights or in the right of their Wives of any Lands or Hereditaments within this Realm of England Wales or the Marches of the same shall and may be compelled to make partition between them of the same which they so hold as Joyntenants or Tenants in common by a Writ de partitione facienda Writ de partitione facienda to be devised in the Chancery in like manner as Coparceners are compelled to do and the same Writ to be pursued at the Common Law Aide prayed And after such partition made every of the said Joyntenants and Tenants in common shall and may have aide of the other or of their Heirs to the intent to dereigne the warranty paramount and to recover for the rate as is used between Coparceners after partition made by the order of the Common Law Item In the thirty second year of King Henry the eight Chap. 32. it is further enacted That all Joyntenants and Tenants in common which hold joyntly or in common for terme of life year or years or Joyntenants or Tenants in common where one or some of them have an estate for terme of life or years with other that have an estate of Inheritance or free-hold in any Lands or other Hereditaments shall be compellable by Writ of Partition to be pursued out of the Chancery upon their Cases to make severance and partition of all such Lands and Hereditaments as they hold joyntly or in common for terme of life or lives year or years or where one or some of them hold joyntly or in common for terme of life or years with other that have an estate of Inheritance of free-hold Provided that no such partition nor severance be hurtfull to any person other then such as be parties unto the said partition their Executors or Assignes CHAP. XXI Of Conditions FOrasmuch as every Estate is either pure or conditionall it were not amiss to make some declaration of the nature and efficacy of Conditions Wherefore ye shall understand that of Conditions some be actuall conditions and be called express Conditions or Conditions indeed and other some be Conditions in Law which be called in Latine Conditiones tacitae sive Conditiones implicitae because they be secretly implied by the Law and not expressed Conditions indeed be such as be knit and annexed by express words to the Feoffment Division Lease or Grant either in writing or without as for example if I infeoff a man of certain Lands reserving to me and to my Heirs so much Rent yearly to be paid at such a Feast and for default of payment that it shall be lawfull for me to reenter this is a feoffment upon condition of payment And here the reenter of the feoffor for the not payment of the Rent shall dissolve and utterly defeat the feoffment Semblamble it is of Gifts in tayle Leases c. but if the Condition be that for default of payment of the Rent it shall be lawfull for the feoffor to enter again into the Lands and to hold them till he be contented and satisfied of the Rent this Condition not performed doth not dissolve nor undoe the feoffment but only giveth to the Feoffor an authority to retain the Lands as it were by way of Distress till he hath levied the arrerages of Rent Distress And ye shall well mark and observe That Conditions be sometime made to be performed on the Feoffees behalf and sometime on the Feoffors behalf
the Husband and his Heirs shall have the Rent of them in the remainder c. And in this case there needeth no atturnement by word because the Husband that ought to atturn accepteth the Grant of the Services the which acceptance is an atturnement in the Law CHAP. XXIV Of Service HItherunto have I briefly touched and overrun the sundry kinds and forms of Estates Now forasmuch as there is no Tenure but hath unto it some service knit and annexed it were very necessary to declare how many kinds of Services there be and what Service is due to every Tenure for the knowledg hereof ye shall understand that the principall and most common kind of service that the Tenant oweth to his Lord is called Knights-service CHAP. XXV Knights-service KNights-service includeth Homage Fealty and for the most part Escuage and whosoever holdeth his Lands by Knights-service is bound by the Laws of this Realm to do unto his Lord homage and fealty and to pay for the most part Escuage when it shall be assessed by authority of Parliament as hereafter more plainly shall be declared Homage is the most humble and reverent service that a man of free estate and condition can do for when the Tenant shall do homage to his Lord the Lord shall sit Homage and the Tenant then shall kneel down before him upon both knees holding his hands between his Lords hands and say in this wise I become your man from this day forward of life and of member and of earthly Honour How the Tenant shall do Homage and to you shall be faithfull and true and faith to you shall bear for the Lands that I claim to hold of you saving the faith that I bear unto our soveraign Lord the King And then the Lord so sitting shall kiss him But if an Ecclesiasticall person which by his order and profession hath addicted himself to the service of God in especiall What a religious Person say when she doth Homage and do homage to his Lord he shall say I do to you homage and shall be to you faithfull and true and faith to you shall bear for the Tenements that I hold of you saving the faith which I owe unto our soveraign Lord the King Also when a woman not married doth homage to her Lord What a woman shall say she shall not say I become your woman for it is not convenient that a woman should be the woman of any other then of her Husband that she shall marry but shall say even as the Ecclesiasticall person saith I do unto you homage c. And if perchance a man holdeth sundry Lands and Tenements of sundry Lords and every of them by Knights-service then in the end of his Homage making he shall say Saving the faith that I owe to our soveraign Lord the King and to mine other Lords And none is bound to do homage to the Lord unless it be such Tenant as hath in the Tenancy an estate of fee-simple or fee-tayle either in his own right or in the right of another for if a woman have Lands or Tenements in fee-simple or fee-tayle What Tenant shall do Homage which she holdeth of her Lord by Knights service and taketh an Husband and hath Issue in this case the Husband in the life of his Wife shall do homage because he hath Title to have the Lands by the Courtesie of England if he overliveth her and also he holdeth them now in his Wives right yet before Issue had between them the Homage shall be made in both their Names but if the woman dieth before any homage made in her life and the Husband keepeth still the Lands as Tenant by the Curtesie now he shall not do homage to his Lord because he hath now an estate but for terme of life Fealty is as much to say as Fidelity Fealty or faithfulness in doing whereof the Tenants shall hold his hand upon a Book and say thus How a Tenant shall do Fealty Hear you this my Lord I to you shall be faithfull and true and faith to you shall bear for the Lands and Tenements which I claim to hold of you and duly shall do to you the Customes and Services which I owe to do to you at the termes assigned as Me help God and then he shall kiss the Book but he shall not kneel as he that doth homage nor do such humble or reverent service as is before declared in Homage And ye shall observe that Homage cannot be done but to the Lord himself Diversity between Homage and Fealty whereas the Steward of the Lords Court or the Bayliff may take Fealty for the Lord. Also Tenant for term of life shall do Fealty but Homage as I said he cannot do Now as concerning Escuage that is to say The service of the Shield Ye shall understand that he that holdeth his Lands by Escuage when the King maketh a voyage Royal into Scotland for the subduing of the Scots is bound to be with the Kings Majesty by the space of twenty daies well and conveniently arrayed and appointed for the Warre And he that holdeth his Land but by the Moity of the Fee of Knights service is bound by the force of his Tenure to be with the King by space of twenty daies and so proportionably according to the rate and quantity of his Tenure But now to our institute and purpose after this Voyage Royal into Scotland in which the King goeth in Person and after his return into England again a Parliament is wont to be summoned in which shall be prescribed and assessed what every Person that held his Land by Homage and went not with the King neither by himself nor by his Deputy shall pay to his Lord in satisfaction of his not serving and according to the taxation hereof every Tenant shall pay to his immediate Lord whether it be to the King or other after the rate and portion of his Tenure If he holdeth by an whole Fee he shall pay the whole Escuage if by a Moity the half if by a fourth part of a Fee the fourth part c. And this Money thus assessed is called Scutage or Escuage for which the Lord to whom it is due may very well for the non-payment thereof distrein But here is to be noted that some Tenants by Custom used time out of mind Distress of Escuage are bound to pay but the Moity or the third part of that which shall be assessed and limited by Act of Parliament Yea Escuage Certain and the Custom is in some place that to what summe of Money soever Escuage is assessed the Tenants shall pay never but such a certain summe of Money and this kind of Escuage is called Escuage certain that is to say Where Escuage is assessed by the Parliament to a more or less summe the Tenant to pay to the Lord five Shillings and no more nor no less c. Such a Tenure is called Socage Tenure and
not Knights Service whereas the other is called Escuage uncertain Finally Escuage Uncertain ye shall understand that Escuage uncertain is alwaies adjudged to be Knights Service and draweth unto it Warde Marriage and Relief but Escuage certain is not Knights Service but is of the Tenure of Sucage as shall be hereafter more amply shewed CHAP. XXVI Of Warde Marriage and Relief EVery Knights-Service draweth unto it Warde Marriage and Relief wherefore it is now right expedient somewhat to entreat of them Ye shall therefore be admonished Warde that when the Tenant which holdeth his Lands by Knights-service dieth his Heir male being at that time within the age of twenty one years the Lord shall have the Warde that is to say the custody or keeping of the Lands so holden of him to his own use and profit till the Heir cometh to the full age of twenty one years For the Law here presumeth that till he cometh to his age he is not able to do such Service as is of his Tenure required Furthermore Marriage if such Heirs be unmarried at the time of the death of the Tenant then the Lord shall have also the Warde and the bestowing of the Marriage of him But if a Tenant by Knights-service dieth The full age of a woman his Heir Female being of the age of thirteen years or above then the Lord shall have the Warde neither of the Land nor yet of the Body of such an Heir and the reason hereof is because a woman of that age may have a Husband able to do Knights-service that is to say To wait upon the Kings Majesties Person when he goeth into Scotland with his Army Royal. But if such an Heir Female be within age of fourteen years and not married at the time of the death of her Ancester then the Lord shall have the Wards of the Land holden of him till such Heir Female cometh to the age of sixteen years by force of an Act of Parliament in the Statute of Westminster 1 Cap. 12. Note that there is a great diversity in the Law between the ages of Females Diversity of age and of Males for the Female hath these many ages appointed by the Law Age of a woman First At seven years of age the Lord her Father may distrein his Tenants for aid to marry her Secondly At nine years of age she is dowable Thirdly At twelve years she is able to assent to Matrimony Fourthly At fourteen years she is able to have her Land and shall be out of Warde if she be of this age at the death of her Ancester Fifthly At sixteen years she shall be out of Warde though at the death of her Ancester she was within the age of fourteen years Sixthly At twenty one years she is able to make alienations of her Lands or Tenements whereas the man hath but two ages the one at fourteen years to have his Lands holden in Socage The age of a man and to assent to Matrimony the other at twenty one to make Alienations Ye shall understand that by the Statute of Merton 6 Chap. it is enacted That if in case the Lord do marry their Ward to villains or others whereby is disparagement if such Heirs so married be within the age of fourteen years or such age that the said Warde cannot consent to the marriage then if the friends of this Heir complain and feel themselves grieved with this unmeet marriage the next of kinne to the Heir unto whom the Heritage cannot descend may enter into the Lands and put out the Lord which is Gardian in Chivalry And if the next Kins-man will not thus do another Kins man of the Infant may do it and shall take the Issues and Profits to the behoof and use of the Heir and yeeld account thereof unto him Account given when he cometh to his full age And there be divers other disparagements which be not expressed in the said Statute Divers Disparagements as if the Heir being within age of consent and in Ward be married to a decreped Person or Creeple as to one that hath but one foot or one hand or that is a deformed creature or having any horrible disease or continuall infirmity All these and such like be disparagements But here also ye shall understand that it shall be said no disparagement unless the Heir be so married when he is within age of discretion that is to say within the age of fourteen years For if he be of that age or above and assenteth to such marriage it is no disparagement neither shall the Lord for such marriage loose his Ward because it shall be reputed and assigned to the folly of the Heir being of age of discretion to consent to such marriage Now if the Lord then being a Gardian after to the Heir being his Ward a convenient marriage without disparagement and the Heir refuseth it Value of Marriage as he may at his choice and election very well do then the Lord shall have the value of the marriage of such an Heir when he cometh to his full age But yet if he marry himself being so in Ward against the will of his Gardein then he shall pay the double value Double value of Marriage by force of the said Statute of Merton before remembred And ye shall Note that if Lands holden by Knights-service One shall not be Ward living his Father descend to an Infant or Child within age from his Mother or from any of his Ancesters his Father being yet alive in this case the Lord shall not have the marriage of his Heir for during the life of his Father the Sonne shall be Ward to no man Finally it is to be known that he which is Gardian in Chivalry in right may before he hath seised the Ward grant the same either by Deed or without Deed to another man and then he to whom such a grant is made is called Gardein in Fait Now as touching Relief ye shall know that if a man holdeth his Land by Knights-service and dyeth his Heir being of full age the full age of the Male is twenty one years of the Female fourteen then the Lord of whom the Land his holden shall have of the Heir Relief Note ye that all Earls Barons or other the Kings Tenants holding of him in chief by Knights-service which die their Heir being of full age at the time of their deaths that is to say twenty one years of age they ought to pay the old Relief for their Inheritance that is the Heir or Heirs of an Earl for an whole Earldome 100l the Heir or Heirs of a Baron for an whole Barony an 100 Markes the Heir or Heirs of a Knight One 100 Shillings and he that hath less shall give less according to the old Custom of Fees Like Law is observed of all others that hold of any other Lords immediately Vt supra Also a man may hold Lands of a Lord
this Rent is but Rent Seck because John at Stile that hath the Rent hath nothing in Reversion of the Land But if he granteth the Reversion of the Land to John at Noke for term of life and the Tenant Atturneth accordingly then hath John at Noke the Rent as Rent Service because he hath the Reversion for term of his life Likewise it is If a man giveth Lands or Tenements in tayle Rent is incident to a reversion Reserving to him and to his Heirs certain Rent or maketh a Lease of the Land for term of life Reserving certain Rent if he granteth the Reversion to another and the Tenant Atturneth accordingly the whole Rent and Service shall pass by this word Reversion because the Rent and Service in such case be Incident to the Reversion and do pass by the grant of the Reversion But if he had Granted the Rent only it had been Rent Seck CHAP. XXXIX What remedy a man hath to recover his Rent when it is behind I Shewed you before that for a Rent-service if it be behind you may distrain in the ground even of Common right though there be no such Clause of distress mentioned in the Deed of Feoffment Grant or Lease Also for a Rent-charge ye may distrain or bring your Writ of Annuity at your choice and election as before is declared But of a Rent Seck if you were never seized of it nor of any Parcell thereof ye be without remedy by course of the Common Law for ye cannot distrain for it nor yet bring your Writ of Annuity but if you were once seized of it or of Parcell thereof and it is eft-soones behind then your remedy shall be this ye must go either by your self or by your Deputy to the Land or Tenement out of which the Rent is coming Disseisin of Rent Seck and there demand the Arrerages of the Rent which if the Tenant denyeth to pay this deniall is desesin of the Rent Also if the Tenant be not then ready to pay it this countervaileth a deniall which is a disesin Moreover if neither the Tenant nor no other man be remaining upon the ground to pay the Rent when ye demand they Arrerages this also is a deniall in the Law Assize and is in very deed a diseisin And for these diseisins you may have an Assize of Novel diseisin against the Tenant and shall recover seisin of the Rent and the Arrerages and your Dammages and Costs of your Writ and of your Plea And if after such Recovery and Execution had In Rediseisin double damages the Rent be again at another time denied you then you may have a Writ of Rediseisin and shall recover your double Dammages It shall therefore be wisdom for a man Therecauses of disseisin of Rent service when a Rent is granted by any person unto him to take of the Tenant of the Land a Penny or half Penny in name of seisin of the Rent and then if at the next day of payment the Rent be denied him he may have an Assize of Novel diseisin And ye shall note That there be three Causes of diseisin of Rent-service that is to wit Rescous Replevin and Inclosure Rescous is when the Lord upon Land holden of him distraineth for his Rent behind and the distress be rescued from him or if the Lord cometh upon the Land to distrein and the Tenant or any other man for him will not suffer him that is called Rescous Replevin is when the Lord hath distrained Replevin and Replevin is made of the distress by Writ or by Plaint Enclosure is where Lands or Tenements be so enclosed Enclosure that the Lord cannot come within the Lands or Tenements for to distrain And the chief case why such things so made be diseisin to the Lord is forasmuch as the Lord is by this way disturbed of the mean and remedy whereby he ought to come and have his Rent that is to wit by distress And there be four Causes of diseisin of Rent-charge Four Causes of Diseisin of Rent-charged that is to wit Recous Rplevin Enclosure and Denier For Denier or deniall is as well a diseisin of a Rent-charge as it is of a Rent-secke Finally You shall understand that there be two cases of deseisin of Rent-secke that is deniall and Inclosure And it seemeth that there is yet another cause of diseisin of all the three Rents aforesaid that is to wit And two of Rent-secke this when the Lord cometh to the Land holden of him or when he that hath a Rent-charge or a Rent-secke cometh to the Land to distrain for the Rent behind or to demand the Rent and the Tenant hearing this encountreth him and forestalleth him the way with force and Arms and menaceth him in such sort as he dare not come to the ground for to distrain for his Rent behind for fear of death or mutilation of his members This is a Diseisin because the party is disturbed of his mean and lawfull remedy whereby he ought to come to his Rent Finally Ye shall observe and mark That by an Act of Parliament made in the 22th year of our Sovereign Lord King Henry 8 it is lawfull for the Executors and Administrators of Tenants in Fee-simple Tenants in Fee-tayl Tenants for terme of life of Rent-services Rent-charges Rent Seckes and of Fee-farmes for Arrereages of such Rents as were due to the Testators in their lives either to distrein for the same or at their Election to bring an Action of debt except in such Lordships in Wales Distress or Action of Debt or in the Marches thereof whereas the Tenants have useed time out of mind to pay unto every Lord at his first entry into the Lordship any summe of Money for the redemption of all manner of Outcries and Penalties incurred at any time before their Lords entry Also by force of the said Act the Husband which was seized in the right of his Wife may after the death of his Wife either distrein or bring an Action of Debt for the Arrerages of such Rents as were due and unpaid in her life Likewise it is of him that hath a Rent for the term of another mans life if he for term of whose life he hath the Rent dieth yet by vertue of the said Act he or his Executors and Administrators may either distrein or bring an Action of Debt for the Arrerages due before the death of him for term of whose he had the Rent CHAP. XL. How Recoveries ought to be made of Rents and Services UPon a Replevin sued an Avowry may be made by the Lord or Conusance and Justification by his Bayliff or Servant upon the Land holden of the said Lord without naming any person certain to be Tenant thereof The like Law is also upon every Writ sued of second deliverance In any Replegiare or second deliverance for Rents Customes Services or dammage Feasant if the Avowry Conusance or Justification be found