feffement be made of landes in fee simple vpon condicioÌ„ that the feffee shal not alien or put awey this same to none other this condicion I saye is voyde bycause the feffee is restrayned of hys hole poure that the lawe giueth in suche case vnto hym and whyche power and libertie is in maner included in euery feffement Yet I maye abbrydge hym of parte of his powre as to condicion wyth hym that he shal not aliene the landê to suche a personne or suche But of gyftes in tayle other wyse it is for yf I gyue landes to a man and to the heyres of his body lawfully begotteÌ„ vpon condicioÌ„ that he nor his heires shall aliene the landes to none other persone this condicion is good and effectuall in the lawe and if he or his heyres contrary to the condicion do aliene them than the gyuer or hys heyres maye very well entre and reteyne the laÌ„des for euer bicause this condicion doth stande wyth the forenamed statute of WestmÌ„ seconde whyche prohibiteth suche alienacioÌ„s to be made Hitherunto I haue spoken of condicions in dede now will I shew what be condicions in lawe that be annexed to any estates Knowe ye therfore that if the office of a parker or stewarde or suche lyke office be graunted to a man for terme of his lyfe though there be no coÌ„dicion at al meÌ„cioned in the grauÌ„t yet the lawe speaketh a condicion in thys case whiche is that yf the partye to whome suche offyce is gyuen shall not execute all poyntes apperteynynge vnto hys office accordingly it shal be lawfull for the grauÌ„tour to entre and dyscharge hym of hys offyce and thys condicion is called a condicion in lawe Of lyuery of season and of atturnement IN al feffemeÌ„tes giftes in tayle leeses for terme of lyfe or for terme of an others lyfe of landes or tenementes there can be no alteration or transmutacion of possession by the aunciente lawes of thys realme on lesse there be a certayne cerimonye adhibited and solempnised in the presence and syght of neyghbours or others whych ceremony is called liuerye of seasone And ye shal vnderstand that this ceremonye of lyuerye of seasone is done whan the feffoure donour lessoure or theyr deputy come wyth the neighboures solemply to the landes or tenementes and there put the feffee donee or lessee in possession of the said landes or tenementes by deliuering vnto him a clod of earth or the ring of the dore orsome other thyng in the name of seasone for this self cause this ceremonye of lawe is called lyuerye of seasone that is to witt a tradicion or gyuynge of seasone But this ceremony is not required in lessees for terme of yeares or in leeses at wyll in as moche as the lessoure in suche case remaineth styll seased and the lessee hath onelye the possession wythout the seasine and 〈◊〉 the termes of the lawe be that suche a man is possessed where as in feffementes giftes in taile and leeses for lyfe he is called seased Wherfore yf a feffemente or lees for life be made of laÌ„des or tenemeÌ„ts and before that the liuery of seasine be made the feffoure dyeth the heyr of the feffoure shall haue the landes per summum ius that is to lay by the rigoure of the lawe notwithstandyng that the feffee hath payde to the feffour the price of the land although the feffee be in possession But otherwise it is of a lese for terme of yeres I lyke ceremonye is vsed whan rente charges whan rente seruyces and suche other thynges as passe by wey of graunt be graunted for it is no full and perfyte graunt tyll it be consygnate as it were wyth the ceremonye of atturnement This atturnemente is nothynge elles but whan the tenaunte of the land of which the reuersion is grauÌ„ted or out of whyche a rente is grauÌ„ted do make some euident signification and token that he accepteth the persone to whom the grauÌ„t is made to be in the same respecte vnto hym that the grauntoure was As for an exemple if the tenaunte of the lande after he haue herde of the graunt coÌ„meth to the grauntee that is to wyt to the persone to whom the graunte was made and saye in thys wyse or in lyke effecte I agree me to the graunte made vnto you by suche a man or I am well a payde and contented of the graunt that suche a man hath made vnto you But the moste vsuall and frequent forme of atturnement is to saye Syr I atturne vnto you by force of the said graunt or I become your tenaunt or to delyuer vnto the grauntee a penye or a halfe penye by waye of atturnemente Yf a man maketh fyrst one grauÌ„t to one persone and after an other to ane other persone that graunte shal stande to whyche the tenaunte wyll atturne althoughe it be the latter And ye shal note that if a man be seased of a Manoure whyche is percell in demene and percell in seruice and doth aliene the same Manoure to an other onlesse the tenauntes of the Manoure do atturne the seruices shal not passe only tenauntes at wyll excepted for it nedethe not to cause them to atturne Note furthermore that there is a greate difference bytwene giuynge a penye in name of seasin and gyuyng it by waye of atturnement for whan it is gyuen of the tenaunt to yâ— grauÌ„tee in name of seasin it dothe not only implye an atturnement but also it gyueth him suche a seasin that if the rente afterwarde be behinde and not payd he may now vppon yâ— seasin of the penye after a lawfull distres and after rescus made brynge an assyce of nouel disseasin where as if it were gyuen only by waye of atturnement he coulde not brynge the assyse but hys wryt of rescus onely Also ye shall vnderstande that wher landes be deuisable by testamente by the custome of any auncyent boroughe or cyty yf there the reuersion of any landes be by testament bequethed to a man in fee and testatour which we call the dyuysour dyeth yâ— deuisee that is to wytte he to whom the deuise was made hath forthw t yâ— reuersion in hym wythout further ceremonye of atturnement Lykewyse it is if a man by testament dothe bequeth a rent charge that he is seased of or a reÌ„t seruice there nedethe none atturnement at all Yf two ioyntenauntes be of land and the lorde graunteth the seruyces to an other if one of yâ— ioynteâ—auÌ„â—eÌ„s atturneth it is ynoughe Finally if a lease be made for terme of lyfe the remayndre to an other in tayle the remayndre ouer to the ryght heyres of the tenauÌ„t for terme of lyfe if in this case the tenauÌ„t for terme of lyfe wyll graunte hys remayndre in fee to an other by hys dede thys remayndre passeth forthwyth without any atturnement for if any atturnement were requisite it shulde be made of the tenauÌ„t for terme of life whyche in this case is the grauntour hym selfe And in vayne
it is that the grauntoure shulde be enforced to atturne sith an atturnement is adhibited to none other purpose than to haue the conseÌ„t and agremente of the particular tenaunte to the intent that it may appere that he hath notice or knowlege of this grauÌ„te but here where as the particular tenaunte hymselfe is the grauntour an atturnement were superfluous and more than neded Of seruices HYtherunto I haue brefely touched and ouerrun the sundrye kyndes and formes of estates Now forasmoch as there is no tenure but hathe vnto it some seruice knyt and annexed it were very necessary to declare howe many kyndes of seruices there be and what seruyce is due to euery tenure For the knowledge her of ye shal vnderstande that the principall and moste common kynde of seruyce that the tenauÌ„t oweth to hys lorde is called knyghtes seruyce Knyghtes seruice KNyghtes seruice includeth homage fealeie and for moste ê‘te escuage and whosoeuer holdeth his laÌ„des by knyghtes seruice is bound by the law of this realme to do vnto his lorde homage and fealtie and to paye for most parte escuage when it shal be assesed by authoritie of parliamente as hereafter more playnlye shal be declared vnto you Homage is the most huÌ„ble and reuerent seruice that a man of free condition can do for whan the tenaunte shall do homage to his lord the lord shal sytte and the tenaunt shal knele before hym vpon bothe knees and shall holde his handes bitwene hys lordes handes and saye in this wise I become your man from this daye forthward of life and of membre and of earthly honoure and to you shall be faythfull and loyall and faithe to you shall beare for the landes that I clayme to holde of you sauynge the faythe that I beare vnto oure soueraigne lorde the kynge and than the lorde so syttynge shal kysse him But if an ecclesiasticall persone whych by hys ordre and profession hath addicted himselfe to the seruice of god in especiall shall do homage to his lord he shall not say I become your man bycause he hath professed himselfe to be the onely man of god but shal say I do to you homage and shall be to you faythfull and true and fayth to you shall beare for the tenementes yâ— I holde of you sauynge the faythe whyche I do owe to our soueraygne lorde the kynge Ye shal note also that when a woman not maried doth homage to her lord she shal not say I become your woman for it is not conuenient that a woman shulde be the woman of any other than of her husbande that she shall mary but she shal saye euen as the ecclesiasticall persone sayeth I do vnto you homage c. That yf perchaunce a man holdeth sundry landes and tenementes of sundrye lordes and euery of them by knyghtes seruice than in the ende of his homage makinge he shal say sauynge the fayth that I owe to our soueraygne lorde the kynge and to myne other lordes And it is to be knoewn that none is bounde to do homage to the lord onles it be suche a tenaunte as hath in the tenauncye an estate of fee simple or fee tayle eyther in hys owne ryght or in the ryght of an other For if a woman haue landes or tenementes in fee simple or fee tayle whyche she holdethe of her lorde by knyghtes seruice and taketh an husbande and haue issue in this case the husbande in the lyfe of his wyfe shal do the homage bycause he hath a title to haue the landes by the curtesy of Englande yf he ouerlyueth her also he holdeth them nowe in his wiues ryghte yet before issue had bytwene them yâ— homage shal be made in theyr both names But if the woman dieth before any homage made by her husbande in her lyfe and the husbande kepeth styll the landes as tenaunt by the curtesye now he shall not do homage to hys lorde bycause he hath nowe an estate but for terme of lyfe Fealtie is as moche to saye as a fidelitie or faythefulnes in doynge wherof the tenaunte shall holde hys hand vpon a boke say thus Heare you this my lorde I to you shall be faythfull and true and fayth to you shall beare for the landes and tenementes whyche I clayme to holde of you and duelye shall do you the customes and seruices whiche I owe to do you at the termes assigned as me helpethe god and hys sayntes And than he shall kysse the boke but he shal not knele as he the doth homage And ye shal obserue that homage can not be done but to the lorde hym self where as the steward of the lordes courte or the bailife may take fealtie for the lorde Also tenaunte for terme of life shal do fealte but homage as is sayde he can not do Nowe as concernynge escuage that is to saye the seruice of the shild ye shal vnderstand that he that holdeth his laÌ„des by escuage whan the kynge makethe a viage royall in to Scotlande for the subduynge of the Scottes is bounde to be wythe the Kinges Maiestye by the space of .xl. dayes well and conuenientlye arayed and appointed for the warre And he that holdeth his lande but by the moitie of the fee of knightes seruice is bounde by the force of his tenure to be wyth the kynge by the space of xx dayes and so proporcionably accordyng to the rate and quantitte of hys tenure But now to our institute and purpose after thys viage royall in to Scotlande in whyche the kynge goeth in persone and after the retyre in to Englande agayne a parliamente is wont to be sommoned in whyche shal be prescribed asseised what euerye persone that helde hys lande by homage and went not wyth the king neither by hymselfe nor by his deputye shall paye to hys lorde in satisfaction of his not seruynge and accordynge to the taxacion herof euery tenaunte shall paye to hys immediate lorde whether it be the kyng or other after the rate and porcion of hys tenure if he holdeth by an hoole fee he shall paye the hoole escuage if by a moitie the halfe yf by the fourth ê‘te of a fee the fourth parte c. and this money thus asseysed is called scurage or escuage for whyche the lorde to whome it is due maye verye well for the non paymeÌ„t therof distreyne But here it is to be noted that some tenauÌ„tes by custom vsed tyme out of mynde are bound to pay but the moitie or the thyrde parte of that which shall be asseised and limited by acte of parliament Yea and the custome is in some place that to what somme of money so euer escuage is asseised yâ— tenauÌ„tê shall paye neuer but such a certeyne somme of mony and this escuage is called escuage certeyne where as the other is called escuage vncertayne Finally ye shall vnderstande that escuage vncertayne is alwayes adiuged to be knightes seruice and draweth vnto it warde mariage reliefe but escuage certaine is no knyghtes
though there be no clause of distresse in the dede of feffemente or lease But here ye wyl aske me when in the case before remembred a man at this daye gyuethe cleane aweye the lande or tenement from himselfe in fee simple so that there is no maner of reuersion of the same remaynyng in him at all and yet neuertheles reserueth vnto hym by hys dede a certaine rent what maner rent this shal be called I answer if there be in the dede indented any clause of distresse put that is that if the rent be behind vnpayed it shal be lawful for the feffoure to entre and to distreyne it is called a rente charge forasmoche as the lande is charged therwyth but howe of common right no but only by vertue and force of the wrytynge But on the other syde if there be no suche clause of distresse put in the indenture thaÌ„ the rent so reserued shal be called a rent secke Likewyse if a man that is seised of certaine landes wyll graunte eyther by indeÌ„ture or by his dede polle that is to saye single and not indented a yearly rent out of the same landes to an other whether it be in fe simple fe tayle for terme of lyfe for yeares or at wyll wyth clause of distresse then this rent is called a rente charge and he to whom suche rente is graunted may for defaulte of payment therof entre and distreine But contrarely if the graunte be made wythout any such clause of distresse it is called reÌ„t secke that is to say a dry rent bicause he can not come to it in case it be denied by way of distresse in so moch that if he were neuer seysed of it he is by the course of the common lawe without remedie Otherwise it is of a rent charge for here he to whoÌ„ the graunt is made whaÌ„ the rent is behinde may chose whether he wyll sue a wrytte of annuitie againste the grauntoure or distreyne for the rent behynde and reteine the distresse tyll tyme he be paid accordingly But he caÌ„ not haue both remedies to gither but muste take him to the one for if he ones recouer by a wrytte of annuitie then is the lande discharged And if he sewe not his writte of annuitie but distrayne for the arreragies and the tenauâ—te seweth a â—epleuin wherupon yâ— other auoweth the taking of the distresse in court of recorde then is the land charged and the person of the grauntour discharged of the action of annuitie Ye shal also vnderstand that if a maÌ„ wyll that an other shall haue a rent charge coÌ„myng out of his lande and yet wyll not that his person shuld be by any meanes charged by wrytte of aÌ„nuitie he may thaÌ„ haue such clause in the ende of his dede Prouiso ê™ praesens scriptum nec quicquam in eo conteÌ„tum ullo pacto se extendat ad oneraÌ„dam personam meam per breue seu actionem de annuitate sed tantuÌ„ modo ualeat ad onerandum terras fuÌ„dos tenementa mea de annuo redditu praedicto If thys or suche lyke clause be added then the land is charged and the person of the grauntour is discharged Also if a man wyll make a dede of graunte in this wise that if Iohn at Style be not yearly payd at the feast of Christms for terme of his life .xx. shillinges sterlyng that then it shall be lawfull for the sayd IhoÌ„ at Style to distreyne for it in the Manoure of Dale this is a good rent charge bycause the Manoure is charged with the rent by wey of distresse and yet neuerthelesse in this case the persone of him that made such dede is discharged of any action of annuitie forasmoch as he graunted not by his dede any aÌ„nuitie to the sayd Ihon at Style but onely grauÌ„ted that he might distreyne for suche yearly rent Furthermore ye shall note that if a man hath a rent charge to him and to his heires coÌ„myng out of certeyne landes and doth purchase any parcel of this land to him and to his heires in thys case the hole rente charge is qwenched and gone and the annuite also the cause is this the a rent charge can not be in suche case apporcioned Otherwise it is of a rent service for if one whiche hath a rent seruice as for exemple xx d. by yeare doth purchase parcel of the lande out of which this yearly rent of xx d. is commyng this shal not extinguish ne drowne yâ— hole rent but for that parcell only For reÌ„t seruice in suche case may very wel be apporcionate and rated according to the value of the lande Yet there be some sortes of rentes seruices which in no wyse can be apporcioned As where a tenaunt holdeth his lande of his lorde by the seruice to reÌ„dre to his lorde yearly at suche a feast an horse a ring of gold a redde rose a gylouer 〈◊〉 suche lyke if in this case the lorde doth purchase parcell of yâ— land thus of him holden this seruice is gone bicause such seruice can not be seuered ne apporcioned Also escuage is a seruice that may very well be apporcioned accordinge to the afferaunce and rate of the lande But where any lande is holden by homage and fealtie if the lorde purchaseth parcel of the land yet he shal haue hys homage and fealtie styll of his tenaunte Ye shall marke also that if a man maketh a lease of landes to an other for terme of lyfe reseruing to him certaine rent if in this case he grauÌ„teth the rent to Iohn at Style sauing to himselfe the reuersion of the said laÌ„d thys rente is but rente secke bycause Iohn at Style yâ— hath the rent hath nothing in the reuersion of the land But if he graunteth the reuersion of the lande to Iohn at Noke for terme of lyfe and the tenaunt atturneth accordingly then hath Iohn at Noke the rente as rente seruice bycause he hath yâ— reuersion for terme of his life Lykewise it is if a man giueth laÌ„des or tenementes in taile reseruing to him to his heires certaine rente or maketh a lease of the land for terme of life reseruinge certayne rent if he graunteth the reuersion to an other and the tenaunt atturneth accordingly the hole rent and seruice shal passe by this worde reuersion bicause the rent and seruice in suche case be incident to the reuersion and do passe by the graunt of the reuersion But if he had graunted the rent only the reuersion had not passed ¶ What remedy a man hath to recouer his rent when it is behynde I Shewed you before that for a reÌ„t seruice if it be behynde ye may distrayne in the grounde euen of common ryght thoughe there be no suche clause of distresse meÌ„cioned in yâ— dede of feoffement grauÌ„t or lease Also for a rente charge ye maye distreyne or bryng your wryt of annuitie at your choise and election as before is declared But of a rent secke if ye were neuer seised of
THE PRINcipal lawes customes and estatutes of England which be at this present day in vre compendiously gathered togither for the weale and benefit of the kinges Maiesties most louing subiectê newely recognised and augmented ⧠LONDINI M.D.XL ⧠Cum priuilegio ad imprimendum solum ¶ The prologe of Richarde Tauerner to the reader DEmosthenes the renowmed Orator defyneth law in this wise The law sayth he is yâ— thing that all men ought to obey for many skylles but in especial bicause law is the inueÌ„tion also the gifte of god the decree of prudeÌ„t men the chastisement of wilful vnwilfull offenses finally the common suretie of a realme wherby it becommeth al men to liue which be conuersant in the same Chrysippus also an excelleÌ„t philosopher thus beginneth his boke of lawes The lawe is kinge of all aswel diuine as humane affaires the presideÌ„t and comptroller of thinges honest and dishonest the prince captaine and ruler of the iuste and iniust it is of ciuile-creatures aswell the commaunder what they ought to do as the forbydder what they ought not to do These auntike sayenges of wise meÌ„ assuredly ought moch to inflame vs to the knowledge of those thinges wtout which we shal be estemed no men but as brute and sauage beastes Let vs not commyt that it be sayd of vs English men as it was ones said of the men of Athens that is that we make very goodly profytable lawes but we vse theÌ„ not Certainly there can be no greater reproche to a common weale then thys One lesson I wolde we lerned of the auncient lawyer Romain named Celsus and that is this The knowledge of lawes is not to beare awey the wordê but the pyth power of them This he wrote bicause there be many which when good holsom lawes be made seke not to se them executed obserued but rather how to defraude them and to haue them vnexecuted whiche kinde of people after the sentence of most ancient lawmakers be no lesse worthy of reprehensioÌ„ thaÌ„ they which do expresly against the law Now they do say they against the law which do the thing that the law forbyddeth And they defraude a law or statute which the wordes of the law saued do circuÌ„uent the meaning and sentence of it Let vs thaÌ„ so read the lawes that we may beare awey the sentence mynd of them and so fulfyl and obserue the lawes that it maye appeare that they were not made in vayn Thus doing we shal please god we shal be obedient subiectes to oure prince and finally we shall seke our own weale and sauetye THE TABLE OF THIS ⧠BOKE ⧠WHat is law iustice and the prudence of lawes fol. i. ¶ A diuision of estates in landes or tenementes fol. i. ¶ Of tenaÌ„t for terme of yeres fol. i. ¶ Tenant at wyl fol. iii. ¶ TenaÌ„t by copy of court rol fo iiii ¶ A diuisioÌ„ of freholdes fol. vii ¶ TenaÌ„t for terme of life fol. viii ¶ TenaÌ„t by the curtesy fol. ix ¶ Of tenant in dower fol. x. ¶ A diuisioÌ„ of inheritaÌ„ces fol. xiiii ¶ Fe simple fol. xv ¶ Fe tayle fol. xx ¶ Tenante after possibilitie of issue extincte fol. xxiii ¶ Of parceners fol. xxiiii ¶ Of condicions fol. xxvi ¶ Of liuery of seisin and of atturnement fol. xxix ¶ Of seruices fol. xxxii ¶ Knightes seruice fol. xxxiii ⧠Of warde mariage and reliefe fol. xxxvii ¶ Seruice of castel garder fol. xl ⧠Of grande sergeantie fol. xli ¶ Of petite sergeantie fol. xliii ☞ Of homage ancestrel fol. xliii ¶ Of socage fol. xlv ¶ Of frank almoyne fol. xlvi ⧠Of burgage fol. xlviii ¶ Of villenage or bonde seruice fol. xlix ⧠Of rentes of the diuers kindes of them fol. liiii ¶ what remedye a man hath to recouer his rent whaÌ„ it is behynd fol. lx ¶ How auowries ought to be made of rentes and seruices fol. xliii ☞ An act for assignes or grantees of reuersions to take auantage of coÌ„dicions vpon fermers fol. xlv ¶ A newe arte how tithes and other profites ecclesiastical shal be recouered fol. xl vi ⧠Of mortuaries fol. xl ix ¶ An newe arte made for th assuraÌ„ce of fermers to holde their fermes against tenaÌ„tes in tayl c. fol. lxxi ⧠That fermers shal take auantage of condicioÌ„s couenaÌ„tes againste grantees of reuersions fol. lxxiii ⧠That fermers or tenaÌ„tê for terme of yeares shal falsefye recoueries for their terme fol. lxxiiij ¶ An acte for thaduoydinge of recoueries by collusion against tenantes for terme of life fol. lxxv ☞ Of discontinuance and of a newe acte coÌ„cerning yâ— same fol. lxxvi ¶ That wrongful disseisin is no discent in the lawe fol. lxxviii ⧠The limitatioÌ„ of prescription newly inacted fol. lxxix ¶ Of times and how they shall conclude the issue in taile fol. lxxxiii ¶ Of testamentes or laste willes fol. lxxxv ⧠An acte for probate of testameÌ„tes fol. lxxxvii ¶ Of disposing of landes by testament or otherwise newly inacted fol. lxxxxi ⧠Of mariagies and towching the degrees of consaÌ„guinitie fol. xcvi ⧠An ende of the table of this present volume What is lawe THe law is the direction ministratioÌ„ of iustice iustice is as Iustinian sayth in hys institutions a constante permanent minde and will to render vnto euery persone his right and duty The prudencye of lawe is a knowledge of diuine and of humane thynges a science and perfyte notice of equite and iniquitie of rightuousnes and vnrightuousnes And forasmoche as a great porcion of the prudencie or science of the lawes of this realme consisteth in the perfyte knowlege of estates that men haue in landes and tenementes we shal first as compendiously and as simply and playnlye as we can treate of estates ⧠A diuision of estates YE shal therfore vndersand that who so euer hath anye estate in landes or tenements either he hath in the same onelye a chatell or a free holde or an inheritaunce Yf he hath an estate in any landes or tenementê but for terme of certayne yeares or at his landlordes wyll so is it called a chatell if for terme of his life or of an other mans lyfe it is called a free holde or franke tenement And if he hath it to hym and to hys heyres in fee simple or in tayle then we saye he hathe an estate of inheritaunce ⧠Tenaunte for terme of yeares TEnaunte for terme of yeres is he to whome landes or tenementes be dimised and lessed for the terme of certayne yeres as is agreed bitwene the landlorde the tenaunt And when the lessee I meane him to whom such lease is made doth entre by force of the sayd lees and is in actuall possession of the same than he is called tenaunt for terme of yeres And here ye shall note that if the lessour that made the lees hath reserued vnto him a yerely rent vpon the sayd lees as it is accustomably vsed to be done yf the
applied to that whyche commeth by discente from a mannes auncestours but also to euery purchase in fee simple or fee taile Fee tayle Ye shall vnderstande that before a certayne statute called the statute of Westminster seconde there was no state tayle but all was fee simple eyther purely that is to saye wythout condition or condicinallye as appereth by the pretence of yâ— said statute but now sythens the promulgating of that statute diuers formes of state tayles haue rysen Fee tayle is whan it is prescribed and lymytted in the gifte what heyres and by whome engendred shall inherite As for exemple I gyue landes to a man and to his heyres and go no further this is fee simple but if I make a limitation and adde of his hody begotten now is it fee taile that is to saye a fee or inheritaunce limitted prescribed determinate or assigned So that if I gyue landes to a man and to his heyres he hathe fee simple but yf I gyue landes to hym and to hys heyres of hys bodye lawfully begotten he hathe but a fee tayle for asmoche as I appoynte lymytte prescribe and determyne the heyres and for lacke of suche heyres the gyfte shall be expired and worne out the landes shall reuerte agayn to the gyuer or his heyres But ye muste obserue that there bo two kyndes of fee tayle There is a generall tayle and there is a speciall tayle Fee tayle generall is as where landes be giuen to a man and to his heyres of his bodye begotten without anye mencyonynge and expressynge by what woman they are to be begotten And therefore yfa maÌ„ be tenaunte in the generall tayle of landes and taketh a wyfe and hathe issue by her and she dyeth and afterwarde he takethe an other wyfe of whom he hath also other issue here either of these issue is inheritable to this land entayled But if I expresse in the gifte by what womaÌ„ the heires shall be procreate and ingeÌ„dred then is it an especiall tayle as for exemple to make the thynge playne if landes be gyuen to a man and to the heyres of his body lawfully begotten by Katherin his wyfe this is an especiall tayle for the issue of him begotten by an other woman shal neuer inherite by force vertue of the tayle Lykewyse it is if landes be giuen to a woman and to yâ— heires of her body law fully begotten shewe not by what man this is a general taile but if I adde saye by suche a man her husbande than is it an especiall taylle Also yf I gyue landes to a man and to hys wyfe and to the heyres of there two bodyes lawfully begotten thys ys an especyal tayle as wel in the husbande as in the wyfe Semblably it is yf a man gyueth landes to an other man wyth hys daughter or kynswoman in francke mariage thys emplyeth a state tayle especiall and in thys case as wel the man as the woman hathe estate in in the speciall tayle But yf I gyue landes to a man and to suche a woman and to hys heyres that he shall begette of her here the woman hathe estate but for terme of her lyfe and the husbands an estate in the especyall tayle In lykewise it is on the womaÌ„s behalfe as if I gyue landes to a man and to hys wyfe and to her heyres of the bodye of her said husbande engendred he hathe an estate but for terme of lyfe and she an estate in the specyall tayle But in bothe cases yf I hadde sayde to the heyres and not hys or her heyres than shulde eyther of them haue hadde an estate in the specyall tayle bycause thys worde heytes is as well referred to the one as to the other Ye shall also vnderstande that yf landes be giuen to a man ond to the heyres males of his bodye this ys a state tayle and in this case the heyre femalle shall neuer inherite Finally it is to be noted that of landes whych a man hath in fee simple the possession of the brother shall cause the syster germayne that is to saye the syster bothe by the fathers syde mothers to inherite and not the brother by the halfe blod as here tofore was said but of landes which be entayled otherwise it is Therfore if a man be seysed of landes in the generall tayle and hath issue by hys furst wyfe a sonne and a daughter and also a sonne by an other wyfe dyeth and the eldest sonne entreth in to the landes after dyeth the suster germayne shall not haue the landes but the yonger brother of the halfe blode bycause whosoeuer shall inherite landes in taile must claym them as nexte and immediate heyre not to hym that dyeth last seased of the landê but to hym vnto whome the landes were fyrst gyuen whyche in the case before remembred is the sonne and not the daughter Thus ye shal marke obserue a great diuersitie bytwene the forme of successyon in landes of fee simple and the forme in fee tayle Tenaunt after possibilitie of issue extincte WHan landes or tenementes be giuen to a maÌ„ and to his wife and to the heires of there two bodies lawfully begotten yf in thys case either of them chaunce to dye before they haue issue betwene them he or she that ouerlyueth hys styl tenaunt in tayle but wythout all possibilitie of any issue that can be heyre to these landes entayled and for thys cause he or she thus ouerlyuynge is called tenaunte after possibilitie of issue extincte for in suche a tenaunte is all possibilitie of issue that maye be inherytable to these landes by force of the gyfte in tayle vtterlye extincte and quenched and by his or her deth the state tayle shall expyre cease and be abolyshed for euer and shall reuerte agayn to the gyuer or donoure from whence it came Yet forasmoche as thys tenaunt after possibilitie of issue hadde ones an inheritaunce in hym he shall not be punyshede by an action of waste though he makethe neuer so moche waste in the landes and tenementes whereas yet in effecte he is but a tenaunte for terme of lyfe Of perceners Hitherunto I haue made a compendious and short declaracyon of estates of al sortes But where I sayde that among susters there is no prerogatyue or preminence concernyng the inheriting of theyr auncestoures landes but that they shall be al togither inheritours and make as it were but one heyre it is expedient to make a further processe in this behalfe and to shew howe in what maner this partition shall be made But ye shall vnderstande that there be besyde parceners at the common lawe whyche be onelye susters also parciners by custome whiche is amonges brothers contrarye to the course of the common lawe and this custome is in Kent and in other places where landes and tenemeÌ„tes be of the tenure of Gauel kynde Ye shall thefore knowe yâ— whan a maÌ„ is seised of landes in fee simple or see tayle and hath no
seruice but is of the tenure of socage as shall be herafter more amplye shewed Of warde mariage and reliefe EUery knyghtes seruice draweth vnto it warde mariage and releife Wherfore it is now ryght expedient somewhat to entrete of them Ye shall therfore be admonished that whan the tenaunte whyche holdeth hys lande by knyghtes seruyce dyeth his heyre male beynge at that tyme wtin thage of .xxj. yeares the lorde shall haue the warde that is to saye the custodye or kepynge of the landes so holden of hym to hys own vse and profyte tyl the heyre cōmeth to the full age of .xxj. yeares For the law here presumeth that tyl he cōme to this age he is not able to do such seruice as is of this tenure requyred Furthermore yf such heyre be vnmaryed at the tyme of the deathe of the tenaunte than the lorde shal haue also the warde and bestowynge of the maryage of hym But yf tenaunt by knyghtes seruice dyeth hys heyre female being of thage of .xiiii. yeres or aboue thā the lord shal haue the ward neyther of the lande ne yet of the bodye of suche an heir and the reason herof is bycause a woman of that age maye haue a husbande hable to do knyghtes seruice that is to saye to wayte vpon the kynges maiesties persone whan he auaunceth into Scotlande wyth hys armye royall But if suche an heyre femalle be within the age of .xiiii. yeres and not maryed at the tyme of the deathe of her auncestoure than the lorde shall haue the warde of the lande holden of hym tyll suche heyre female commeth to the age of .xvi. yeres by force of an acte of parliamēt in the statute of Westm̄ the fyrste Note that there is a great diuersitie in the lawe bytwene the ages of females and of males for the female hath these manye ages apoynted by the lawe Fyrste at .vii. yeares of age the lored her father maye distreyne his tenauntes for ayde to mary her Seconde at .ix. yeares of age she is dowable Thyrdlye at .xii. yers she is hable to assent to matrymonye Fourthly at .xiiii. yeares she is able to haue her lande and shall be oute of warde if she be of thys age at the geantye but of the kynge onelye Homage auncestrell TEnaunt by homage auncestrel is he whyche holdeth his lande of his lorde by homage and bothe he and his auncestours whose heyre he is haue holden the same lande of the saide lord of his auncestours tyme out of mynde by homage and haue done vnto them homage and this is called homage auncestrell by reason of the longe continuaunce whyche hath bene by title of prescription as well concernynge the tenauncye in the bloude of the tenaunte as concernynge the lordeshyp in the blode of the lord And this seruice of homage auncestrell drawethe vnto it warrantye that is to saye yf the lorde which is nowe in lyfe hathe ones receyued the homage of his tenant he oughte to warrant the same tenaunte what tyme so euer he shal be impleaded or sued for such lande so holden of him by homage auncestrell Moreouer suche seruice of homage auncestrell draweth to it acquitall that is to saye the lorde oughte to acquyte the tenaunt agaynste all other lordes that can demaūd any maner of seruice out of the tenauncye Wherfore yf in thys case the tenaunte whyche holdethe by homage auncestrell be impleaded of hys landes and voucheth his lorde to warrauntye who commeth in by processe and demaundethe of the tenaunte what he hath to bynde hym to the warrantye and the tenaunt sheweth howe he and his auncestours whose heyre he is haue holden his lande of hym and of his auncestoures tyme ease or continuall infirmitie All these and suche lyke be dispargementes But here also ye shal vnderstande that it shall be sayd no dispargement onlesse the heyre be so maryed when he is wythin the age of discretion that is to say within the age of .xiiii. yeres For if he be of that age or aboue and consenteth to such mariage it is no dispargement neyther shall the lorde for suche mariage lose his warde bycause it shal be reputed and assigned to the folye of the heire beynge of age of discretion to consēt to suche mariage Now yf the gardeyne offre to the heyre beyng in his warde a conuenient mariage wythout dispargement and the heyre refuseth it as he maye very wel do than the lord shall haue the value of the mariage of suche heyre whan he commethe to hys full age But yet yf he marye hymselfe being so in warde agaynste the wyll of hys gardeyne than he shal paye the double value by force of the statute of Merton before remembred And ye shall note that if landes holden by knyghtes seruice descende to an infaunte from hys mother or from any of hys auncestours his father beyng yet alyue in thys case the lorde shall not haue the mariage of this heyre for during the lyfe of the father the sonne shall be in warde to no man Finally it is to be knowne that he whyche is gardeyne in cheualrye in ryght maye after he hathe seased the warde graunte the same eyther by dede or wythout dede to an other man than he to whom suche graūt is made is called gardeyne in fayte Now as touching reliefe ye shal knowe that yf a man holdethe hys lande by knightes seruice and dyeth hys heyre beynge of full age the full age of the male is .xxi. yeares of the female .xiiii. then y◠lord of whome the land is holden shal haue of the heyr reliefe Reliefe of a hole knightes fee is C s. of halfe a knightes fee fyftye s Also a man maye holde landes of a lord by two knyghtes fees and thā the heyre beynge of full age at the death of his auncestoure shal paye to his lorde for reliefe .x. poundes Seruice of castel garder YE shal vnderstande that a man may holde by knyghtes seruice and yet not hold by escuage nor shal paye no escuage for he may holde by castell garder that is to saye by seruyce to kepe a tower of hys lordes castell or some other place vpō a reasonable warnynge whan hys lorde heareth that enemyes wyll come or be alredy come into Englande Thys seruyce is also knyghtes seruice and drawethe to it warde mariage reliefe as the common knyghtes seruyce dothe Of graunde sergeauntie THere is also an other kynde of knightes seruice called grande sergeantye whyche is where a man holdeth is landes or tenementes of the kynge by suche seruice as he oweth in proper person to do as to bear the baner of oure soueraigne lorde the kynge or his spere or to conduct hys hoste or to be his marshall or to be the sewar caruar or butler at the feaste of the coronation or to be one of the chamberlaynes of the receypt of his eschequere or to do lyke seruices to the kyng in propre persone such maner of seruyce I saye is called grande
as is he that hath a free holde at the common law but the determination of this question I remit to my great maysters which caÌ„ solue the knottes and enigmaes of the lawe For asmoche as yet styl of this matter Causidici certant adhuc subiudice liâ— est ⧠Also ye shall vnderstand that the vsage of some Manour is when the tenaunte wyll surrender his land to the vse of an other that he shall take a wande in his hande and deliuer it to the stewarde of the court and the stewarde shal deliuer the same wand in name of seisin to him that shall take the lande and suche a tenaunte is called tenaunte by the verge Diuerse other customes there be of surrendryng of copy hold landes which here for tediousnes I wyll omytte And forasmoch as tenauntes by custome of the Manoure haue by the course of the common lawe no free holde therfore they be called tenauÌ„tes of base tenure Hytherto I haue treated of the first membre of oure diuision that is to wytte of chatelles for as I sayde all leases for terme of yeres and at will be accoÌ„pted in the law but as cateles and be comprysed vnder that name saue that they be called cateles reals where as kyne oxen horses moneye plate corne and suche lyke be called chatell personalles Nowe we wyll procede to thexplanicioÌ„ of the second membre that is to say of free holdes ⧠A diuision of free holdes FRee holdes or franke tenemeÌ„tes a man may haue in suÌ„dry wyses for ether he is seased for terme of his owne lyfe or for terme of an other mans life Yf he be sesed for terme of his owne life either he haue gotten such estate by way of purchase or els the law hath entiteled him therunto I call it by purchase whether he commeth vnto it by his owne barganing and procuremeÌ„t or by the gyft of his frende and I call it by the operation and intitelynge of the lawe whan a man maryeth a woman that is an in heritres and hath issue by her and she dyeth nowe shal he haue the landes durynge his life by the course of the lawe and shal be called tenaunte by the curtesye of Englande In likewise yf a man be seased in feâ— simple or fee tayle of landes and taketh a wyfe and he dyeth the law giueth vnto the wyfe the thyrde parte of her husbandes laÌ„des for terme of her life and she shal be called tenauÌ„t in dower ⧠Tenaunt for terme of life TEnaunte for terme of life is he that holdeth landes or tenemeÌ„tes for terme of his owne life or for terme of an others lyfe Howe be it the most frequent and common maner of speakynge is to call him that hath estate for terme of his own life tenaunte for life and him that hath estate for terme of an others life tenaunt pour terme dautre vie that is to saye tenaunte for terme of an others life Ye shal note that like as he that maketh the lease is called the lessoure he to whome the lease is made is called the lessee so he that maketh a feffement is called the feffoure and he to whome the feffement is made the feffee Also if tenaunte for terme of lyfe or tenaunte for terme of an other mans life do wast the lessour or he in the reuersion shall maynteyne very wel an action of waste agaynste hym and shall by the same recouer treble damages Finally ye shall vnderstand that by an acte of parliameÌ„t made in the xxvii yere of oure Souerayne lorde that now is king Henry the eight it is enacted that no free holde nor estate of inheritance shal passe ne take effecte but by dede indented sealed enrolled in one of the kynges courtê at Westmynster or els wythin the same countie where the lande dothe lye as by the sayd acte more at large appereth ⧠Tenaunt by the curtesi TEnaunt by the curtesye of Englande is he that hath maryed a wyfe inherited and hath had issue by her and she is deade in this case the lawe of Englande permytteth and suffreth the husbande of suche wyfe to reteyne all his wyues landes that she had either in fee simple or fee tayle so longe as he lyueth And this is by the curtesye and vrâ—anitie of Englande for this thing is vsed in none other region But in thys case it is requyred that the chylde ve vitall that is to saye be borne and broughte forth iâ— to this worlde aliue and therfore the common sayeng hath bene that onles the chylde be harde crye the father shall not be tenaunte by the curtesye for the onelye proue and argument of lyfe in an infaunt new borne is the vagite and cryenge Ye shal furthermore vnderstand that onlesse the husbande be in actual and reall possession of his wyues landes seased of them in her right he shall not be tenaunte by curtesye after her death And therfore yf landes descende to a mans wyfe so that she is tenaunt in the lawe and to euery mans accion yet if the husbande haue not made an actuall entreedurynge the couerture and matrimony betwene theâ— he shall not be tenauÌ„â— by the curtesye for it shall be reputed and iugged his foly and negligence that he wolde not entre in her lyfe tyme. Otherwyse it is of aduousons â—â—Ì„tes and such other thynges which forthwyth when they descende be in a man or woman wythout any entre or further ceremonye of lawe Note that if tenaunte by the curtesye of England wyl suffre or make any wast in the landes or tenemeÌ„tes that he so holdeth he is punyshable therfore by action of wast Also it is to be knowne that of thinges that be in suspense a man shall not be tenaunt by the curâ—â—sye and therfore yf a man be the tenaunt in fee simple of certayne lande and doth entremary wyth a woman that is the seignoresse or lady of the same and hath issue by her and she dyeth yet he shal not be tenaunt by the curtesye of the lordshyp of seignorye bycause himself is tenaunt of the land and therfore the lordeship is suspended for the time for a man can not be both lorde and tenaunt of one thing but if he had not bene tenaunt of the lande he shulde haue had the lordeshyp after the deathe of his wyfe by the curtesie of Englande very well Of tenaunt in dower TEnaunte in dower is she that hath bene maried to an husbaÌ„d that was during the matrimony betwene them seised of landes â–ª or 〈◊〉 in fee simple or fee tayl â–ª which is nowe dede and she seased of the thyâ— departe of her husbande 's sayde landes for terme of her life For by the common lawe of the lande if the husbande be at any tyme duryng the couerture seased lawfully whether 〈◊〉 be by purchase or by discent 〈◊〉 theâ— in fee or in tayle dye his 〈◊〉 to be indowed by the course of the coÌ„mon lawe of the thyrde foâ—e And in some places
by an aunciente custom she shal be indowed of the 〈◊〉 â–ª yea and thoughe 〈…〉 seased actually durying the courture yet if the landes be caste vpon 〈◊〉 by the lawe so that the law calleth him tenaunt to euery mans action it suffiseth for the woman to demaunde her dower for it were vnreasonable that the negligence 〈…〉 of entrynge of the husbande shulde hurte the wyues 〈…〉 Otherwise it is as I sayde before of tenauÌ„t by the curtesy for if landes descende to a woman couert and the husbande for slouthfulnes or negligence doth not entre in his wyues life he shal not be tenaunt by the curtesi◠〈◊〉 by all lawes the wyfe oweth obedience and subiectioÌ„ to her husbande and therfore she can not compel him to entre but when landes descend to the wyfe the husbande onelye haue power to entre at his pleasure And ye shall vnderstand that onlesse the wyfe be passed the age of ix yeares at the tyme of her husbandes deathe she shall not be endowed by the common lawe But it is to be knowen that a womaÌ„ maye by diuers wayes estoppe and preuidiâ—e her selfe of her dower as if she commyt any crime for which she is atteynted of treasone murdre or felonye â—he gettâ—â—no dower not wythstandyng she hath obteyned her pardone Also yf after the deathe of her husband she taketh a lease for terme of lyfe of the same landes wherof she is indowable she losed her dower of the same Moreouer yf she departethe from her husbande and lyuethe in aduoutrye wyth an other man and not reconcieled agayne to her husbande wythout coercion of the ecclesiasticall power she lesethe her dower after her husbandes deathe She shall be also barred of dower yf she wyll wythholde from the heire the charters and euidence concernynge that lande wherof she asketh dower But none other saue the heyre can wytholde her dower for thys cause It maye not be vnknowne also of what thynges she maye demaunde dower and of what thinges not Of landes messuagies aduousons rent charges rente seruyses or signories in grosse or otherwyse of villaynes of coÌ„mons certayne of estouers certayne she is dowable But of commons and estouers sans nombre also of annuities of homage of thingê of pleasure as of seruyces of paimet of roses and semblable she shall not be endowed There be yet two other kindes of dower the one is called dowment ex asseÌ„su patrâ—is and the other is called dowment de la plus beale ê‘tie that is to saye of the fairest parte Dowment ex assensu patris is whan the father is seased of landes in fee and his sonne whiche is heyre apparaunt endoweth his wife at the churche dore whan he is espoused of parcell of hys fathers landes wyth the assente of his father in wrytinge testifienge the same assent if in thys case her husband dye she may forthwyth entre into the laudes so assigned vnto her wtout further appâ—yntynge or proces of law although the father of her husbande be yet aliue in actual possession of the lande But if she thus do and take her to thys endowment at the churche dore she can not haue her dower by the common lawe of the thyrde parte of all her husbandes landes or any parcell of them how be it if she wyll refuse this assignement made vnto her at the church dore and demaund dower at the common lawe she maye verye well A man maye also endow his wyfe at the time of the spousailes of his own landes whiche he hath in his owne possession and that dower is called dower ad ostium ecclesiae Dowment Dela plus beale that is to saye dowmente of the fayreste parte shall be in thys case Whan a man is seased of landes whiche he holdethe of an other man by knyghtes seruice and of other laÌ„des which be of socage tenure and hathe issue whyche is wythin the age of .xiiij. yeares dye and the lorde of whom the lande is holden by knyghtes seruyce entrethe in to the lande holden of hym and the mother of the chylde entrethe in to the socage tenure as gardeyne in socage yf in thys case the woman wyll brynge a wrytte of dower agaynste the lorde whyche is gardeyne in cheualrye he may plede the speciall mater and shewe howe she as gardeyne in socage hath so moche lande and pray the court that she maye be suffred to endowe her selfe of so moche lande beynge in her owne custodie as amounteth to the thyrde parte of the hole landes And than the iudgemente shall be that the gardeyne in chyualrye shall reteyne the lande holden of hym quyte from the woman duerynge the non age of the warde After which iudgement she maye go and in presence of her neighboures endowe her selfe of the beste parte of that whyche is in her custodye amountynge to the thyrde parte of the hole and than is she called tenaunte in dower de la plus beale A diuision of inheritaunces HYtherunto I haue spoken of free holdes nowe it remayneth to treate of inheritauÌ„ces not that inheritauÌ„ces be no free holdes for they be free holdes also but the other estates of whiche I haue here tofore treated be onely free holde and of no hygher nature where as a state of in heritance although it â—e a free hold yet it is not to be called by that name sythe it is a farre more excellent and greater estate But ye shall vnderstande that of inheritaunces some be of more amplitude and excellencye than other some be as that inheritaunce whyche is pure simple and without limitacion of what heyres is it called fee simple But when I make a limitacioÌ„ of what heyres thaÌ„ is it called fee tayle of which also be two sortes as herafter more at large shal be declared Nowe the nature of fee simple is to be setforth wyth oure accustomed compendiousnes Fee simple FEe simple is as I sayd the most ample large inheritaunce that can be in this realme diuised or excogiâ—ate as that whiche a man hath to hym and to his heyres simply without any further limitacion for whether they be of his owne bodye begot ten or not so that they be the next of his kinne and wythin the degrees it suffiseth So then tenaunte in fee simple is he that hath landes or tenementes whether it be by purchase or by discent to him to his heires for euer For if a man will purchase landes in fee simple he must nedes haue these wordes his heyres in his purchase for these be the onlye wordes that make an estate of inheritaunce Therfore yf landes be gyuen to a man for euer no mencion be made of his heyres he hath an estate but for terme of his lyfe bycause these wordes his heyres do lacke Yet neuertheles if a maÌ„ by his testament doth deuise landes to an other in suche where the custome wyl serue so to do though he maketh no mencion of heyres but saythe that he bequethethe to suche a