the Son a Knight or to marry the Daughter Quit-Rents and others which for that they depend upon divers Customes of severall places and upon the severall will of Lords is impossible punctually to reckon p Bro. Tit. Tenures n. 50. 53. 58. 29. Secta ad Curiam is a service which binds the Tenant to frequent the Court of his Lord q F. N. B. fol. 158. But they are not Feodaries alone who are obliged to this For wee have mention made of a four-fold suit of Court One by Covenant and Oligation Viz. when another who is not the Lord of my Fee Covenants with me or my Ancestors though not his Feodaries to performe this suite of Court Another by Custome where any one and his Ancestors time out of mind were wont to come to the Court of another and his Ancestors though not Lord of their Fee The third we may call a Servile suit which the Feodary performs to the Lord under the notion of service The fourth is Royall by which are found to goe twice a year to the Sheriffs Courts or Leet Courts that they may not be ignorant of what is done there for the peace of the Common-wealth Now our Authors call it Royall though by corruption some rearm it reall because the maine reason of it is to perform Legiance to the King for there all above 12. yeares old r Termes of the Law Tit. sug take the Oath before mentioned 30. Secta ad molendinum is a service by which the Feodaries as bound by Custome to carry their Corn to be ground at the Mill of their Lord. Å¿ F. N. B. sol 122. 31. Heriot otherwise Hariat is compounded of the Saxon words Here Geat Here signifying an Army and Geat a Journey and it was a Tribute payedunto the Lord when hee went to Warre t Lamb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Vero. Heriot Bracton sayes that Heriot is alone with Releife u L. 2. c. 36. And Britton w C. 69. Flet. l. 1. c. 18. That it is the Gift of the Feodary at his Death given to his Lord by which he leaves unto him the best Beast he hath or some other thing according to Assignment And he saith that this doth not touch the Lord nor the Heir or Inheritance not that it is to be likened to Releif But that it rather springs from the love and courtesie of the Tenant coming either from a Right or necessity of Duty and that both from villains and Free-Tenants Heriot is at this day a service by which the Tenant is bound to leave to his Lord the best Beast or for defect of that some other moveable which hee hath at the time of his Death And this is two-sold namely servile which Tenant in Fee simple payeth or constumary which is â—yed by Tenant for life according to the â—ustome x Bro. Tit. Heriot n. 5. Of Uses and Profits TIT. IV. IT appears from what hath been said that Services are either reall or personall a Brac. l. 4. tr 1. c. 39. 〈◊〉 reall we have already spoken personall â—re such as are due unto the person b Id. ibid. and â—is kind is twofold one due from the perâ—on of one to the person of another of which â—lso we have made mention before the other which is due from an estate to a person of which sort are profits uses Habitation whereâ—â—re uses and profits in respect of the perâ—on to whom they are due is a Right in reâ—pect of the thing which is due a Serâ—ice c Id. l. 4. tr 1. c. 37. n. 1. 1. Since there are none in England besides the Soveraigne power who hath a plenary and absolute dominion over immoveables it is not hard to discern who they are that are Possessors of estates as to the profits the estates being not wholly theirs which we shall tearm usufructuarii and who nor namely whether all Subjects by what Title soever they hold or onely some who hold by this or that Title for those which have a Fee have onely a power profitable d Wesenbec dâ— feod c. 1. n. 4. which according to the Feodists ceaseth they violate the faith due to their Lord 〈◊〉 not by our Law save in Case of Felony e Stanf. plac Coron l. 3. c. 30 now he which hath any use or profits loâ—â— hath some way or other a power also f Bra. l. 4 tr 1. c. 36. n. 2. Moreover he which hath a Fee-farm whoâ— the Civill Law of the Romanes called Eâ—phytenticus g vectigal ager which is one that hath anâ— state to improve although he have a perpâ—tuity yet he payes a yearly Rent by 〈◊〉 of an acknowledgement of the Seignâ—rie h Brit. c. 66. Lastly he that hath a Freehold and abuseth it is liable to an Action 〈◊〉 Waste i F. n. b. fo 55 Dr. Stu. l. 1. c 23 flet l 1. c. 12 which should not be were 〈◊〉 sole Lord and had absolute power in 〈◊〉 disposing of it but Bracton is very clear 〈◊〉 declaring what Titles our Lawyers incâ—â—â— under the notion of uses and profits for 〈◊〉 stinguishing between a Free-hold and aâ—â— state in profits he is much more diligentâ— distinguishing between Fee k l 4 tr 1 c. 36 Plow fo 83 and Fâ—â— Farm or farming of the profits for thâ— in those the possessor hath a perpetuity in theâ—â— only an estate for life whence it follows thâ— he onely is an usufructuary in an Estate 〈◊〉 us who hath Lands or Tenements for Teâ— of years or at the will of another or 〈◊〉 who hath Lands by way of pledge or security which we call Mortgage or by way of Eâ—â—cution whom we call according to the â—â—versity of the cause Tenant by Elegit Tenant by Statute Staple or Statute Merchant or lastly he who hath the Lands of an 〈◊〉 in Right of Guardianship untill he come to full age Now an estate of profits may be created with us either by gift and bequest or by conditional agreement l Inst com c. 5 Flet l. 1. c. 12. and it appears that our ancestors did sever the profits of a Fee from the propriety untill it was changed by Act of Parliament m 27. H. 8. c. 10. Coâ— l. 1. Chudleys Case but those estates which are held by Copy of Court Roll or by the Verge at the will of the Lord cannot be Leased out without the consent of the Lord above a year n Instit com nor can they be bequeathed or aliened by any agreement without being first surrendred into the hands of the Lord and from thence received by him to whom the former Tenant desires to alienate them o Id c. 15. 3. It is held also amongst us that uses and profits may be of those things which are extinguished by use and daily change so that without all doubt one may bequeath or by agreement create an use of Servants Money Oxen Cowes
with the Husband t F. B. f. 78. G And if a Free-man marry a Villaine shee shall be free u Id. eod 8. But it is reported to be an ancient custome in Cornwall that if a Freeman took a Villain to wife to a free-hold and free-bed if they have Issue two Daughters the one shall be free and the othe villain w Brac. l. 4. tract 3. c. 13. n. 2. 9. There is a condition of servitude which is tearmed Substantialis For whosoever is a Servant is so a Servant as that he is nothing else x Brac. l. 1. d c. 6. n. 3. Brit. c. 31. Flet. l. 1. c. 3. d. 10. And there is lastly a certain condition like to Servants which are yet ingenious and freeborn To wit those whom we call Apprentices who are bound by their Parents or Governours to their Masters to learn Merchandising or other mechanik trades by Covenants y An. 5. Eliz c. 4. fol. 25. And these are in the power of their Masters during the time covenanted and make gaines not for themselves or Parents but for their Masters unless it be otherwise covenanted for a Covenant prevailes above Law z Brac. l. 2. c. 15. l. 5. tr 2. c. 3. n. 7. l 5 tr 3. c. 9. n. 12. These oblige themselves in many things and cheifly in these namely That for the time covenanted they will truly and faithfully serve their Masters conceale their secrets willingly obey al their lawful and honest commands That they will not commit Fornication within their Masters House or without that they will not goe away within their time nor be absent day or night that they will no ways damnifie him nor suffer him to be damnified in what they may help but that they will with all their might indeavour to hinder his losse or else fore warn him with all possible dilligence that they wil not inordinately imbezell their Masters Goods nor lend them to others without his command or special licence that they will not frequent Taverns unlesse to make bargaines and therin to serve their Masters That they will not to the preiudice of their Masters play at cards or dice that they will not intermarry or contract Matrimony with any woman during the said Term that they will not trade with their own or anothers Money without leave or license of their said Masters but that they will well and truly behave themselves in word and deed as a good and faithfull Apprentice ought to doe a Ne. b. Entr. Ver. coven in Apprent Of Free-born TIT. IV. A Free-man is naturall and free-born he is said to be free born who is free so soon as born whether born of two free-born or of a man free-born and a woman made free or of a single woman and a Freeman a Fortes c. 42 Flet. l. 2. c. 4. provided it be not within a villinage but in a free bed notwithstanding it be out of the state of Matrimony b Vid. sup tit prox par 4. in fine 1. So if of a Freewoman and a Villain out of Matrimony and it is sufficient that the Mother be frce at any time namely either 〈◊〉 the time of conception parturition or in the intervall notwithstanding that she become Villain afterwards because the mis-fortune of the Mother shall not prejudice the Infant in the Wombe c Brac. l. 1. c. 6. n. 5. Flet. l. 1. c. 4. Lit. l. 2. c. 11 2. So if a Free-man having Children doe in Court acknowledg himself a Villain Those Children which he shall have after such acknowledgment shall be villaines but those which he had before shall be free d Brac. ibi supra Of such as are made free TIT. V. THose are said to be made free who are manumissed from a just Servitude And they are called free men as being set free from servitude a Brac. l. 1. c. 6. n 6 Flet. l. 1. 4. Manumission is a giving of liberty that is a manifesting or declaring according to soule because liberty which is by the Law of nature cannot be wholly taken away by the Law of nations albeit it may be under a cloud b Brac. l. c. 5. n. 8. Flet. sup 1. Manumission is two-fold namely Expressed or tacite and implyed c Dyer fo 60 n. 23. and sa 266 267. â— 11. Manumission expressed is also double One which is by writing as when the Lord gives a Charter or instrument of Manumission to his Villain And another which is by fact and which was more used of old As when the Lord in the presence of his Neighbours laying his hand upon the head of his Villain shall say I will that this man be free and having said this letting him go out of his hands shall put him from him d Brac. l. 1. c. 5. l. 8. Jemn Ju. ver manum Erit c. 31. â—â— 2. Lambert in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 e fo 226. e Flet. l. 3. c 13. and l. 4. c. 11. describeth the ancient formes of Manumission thus If any one will make his villain free let him with his right hand deliver him to the Sheriff in a full County and he ought to quit claime unto him the Bond of servitude by manumission and shew him free Gates and wayes and deliver him free Armes viz. lance and sword and then he is free 3. Manumission implyed is when a Lord shall binde himself by obligation to pay a certain fum at a certain day to his Villaine or shall bring his action against him for any thing which he may challenge as his own or shall grant him a yearly Rent or make a Feoffment unto him of Land or by Deed grant him an Estate in Land for life or years or finally do any such action which we are not used to do but to freemen f Brac. l. 4. tr 1 c. 21. n. 3. f. 192. b. and c. 22 Brook Tit. villena spec Just n l. 2. des Weiss If a Villain becomes a secular Preist yet the Lord may claim him as his Servant and seise his goods g Spec. Just cod But if he shall enter into Religion it is otherwise because there he is dead in the eye of the Law h Lit. c. 2. c. 11. In what causes Manumission cannot be TIT. VI. THere are so few marks left at this day of servitude or of Villaines that it were to little purpose to prescribe a form of Manumission and therefore our Authors are silent in it But that I may add one word for conclusion in this place Manumission ought to be bounden within the same limits in which other lawfull Acts are So that neither an Infant nor one that is not Compos mentis nor one that hath no right may work any thing by it All other things unless any thing be done to defraud Creditors are left at pleasure Of the taking away the Law which was called Lex Fusia Caninia TIT.
5 c. 25. Flet. l. 6. c. 48. Dier fo 224. n. 29. but in regard the thing taken is also received the acquisition is not to themselves but to the King as we have said nor finally can persons uncertain as the Heirs of one that is living y Perk. grants 52. Plow 345. Or the first-born of any one who at the time of the gift hath not Children z Perk. ib. n. 54. Dier fo 274. n. 43. but a possession to A. the remainder to his Heirs though uncertain is good a Coo. l. 1. Arâ—bors Case f. 66. he also who is wholy unfit and unable to execute an office in any of the Courts of Justice is uncapable of receiving the said Office b Dyer fol. 151. n. 1. 14. Now all things whatsoever may be given save those things which can no way be possessed those are things sacred and Religious or as it were Sacred and those are a Free-man and that which appertains to the Kings Treasury which make the very Crowne and belong to the Publique profit c Brac. l. 2. c. 5. n. 8. 13 14. Brit. d c. 34. Flet. l. 3. c. 6. To which also some adde the Walls and Gates of Cities d Flet. ib. But at this day there scarce seems to be any liberty appertaining to the Crowne or Pâ—erogative in the Supremacy which may not by Charter be granted to a Subject e Kitch fol. 30. b. 15. I cannot give the Right which I have in a thing which is in the possession of another to a third person Yet I may â—emit it or as we say release it to the Possessor by my writing f Perk. ib. 85 86. Nor can any one give an action which he hath to any thing as we have said before g Sup. cod except the King h Dyer fol. 30. n. 208. or to the K. i Bro. chose in Action 4. yet one may give it to the party obliged k Perk. ib. 85 86. A man cannot give the reversion of an Office Eo Nomine nor can any but the King give under the name of the Office l Dier fol. 259. n. 18. 16. Now that a Donation may be valid there are other things required It ought to be free and not compulsatory nor extorted by force or feare m Brac. l. 2. c. 5. n. 8. 13. Brit. d. c. 34. There ought also to be certainty in a Gift for that there can be no Donation of a thing uncertain unlesse it may be some meanes be reduced to Certainty n Perk. ib. 81 86. Plow fol. 6 7. 12 13. There ought also certain words to intervene to a congruous Gift o Brac. ib. n. 12. as to a Bargain p Id. ib. Dier fo 71. n. 10 11 and that there be a joynt consent as well of the Donee as of the Donor q Brac. ib. n. 12. Dr. Stu. l. 2. c. 33. And that there may be no Error in the thing given r Brac. l. 2. c. 5. n. 12. Flet. l. 3. c. 7. nor fraud s Id. ib. not prejudice to a third person t 13. Eliz. c. 9. Yet a false or pretended cause adjoyned to a Gift doth not vitiate or injure it u Flet. l. 3. c. 6. 17. And here also there ariseth a difference amongst Donations for that some may be by word some not without Writing or Deed as we commonly speak w Brac. l. 2. c. 5. n. 3. all Chattells for the most part either reall or personall may be given by word x Per. grants 7. unlesse they be given by a Body politick whose Seale iâ— necessary in every Alienation y Id. â—od 64. If any one in Knights service be Guardian of Body and Lands he may grant the Custody of the Lands or the profits by word only which some affirme also as to the body or person of the Heir z Id. ib. 60. though it be denyed by others for this reason That the transferring of the Body doth not consist properly in the delivering possession a Id. ib. No man can grant Lands which one hath in possession to another either for life or for ever without a Writing but for yeares he may b Id. eod 61. Corn which is but growing may be granted by a Nude parolâ— and that by Tenant in Tail although he dye before the Doâ—ee hath severed it from the land c Id. eod 57. which notwithstanding is otherwise in fruits of Trees growing upon the Land d Id. eod 59. And the reason of the differenceit may be is because Corn cannot grow without the industry of man but trees by nature but Tenant in Fee-simple may give even such Trees by his word only e Id. eod 58. because he hath a larger power then Tenant in Taile And lastly Lands and Tenements may be given amongst those who are living by word only f Id. cod 62. But in case of Death not without a Will in writing g Seetit of wills c. 18. Incorporall Rights are hardly given without Deeds as wee call them such as yearly Rents h Dier fol. 139. n. 57. Dr. Stu. l 2. c. 16. fol. 80. Common of Pasture an Advowson villain in grosse or the reversion of Lands after the death of the present Possessor i Perk. gr 61 Plow fol. 150. Of which nature also are Tithes according to the opinion of some k Perk. ib. 62. Plow 233. but a Rectory with it's Tithes may l Bro lease fol. 15. 20. to which may be added the Right of Guard and Marriage m Dier fol. 370. n. 57. 19. If a Gift be in all things compleat it ought to be confirmed by Livery or something parallel n Brac. l. 2. c. 5. n. 12. 17 18. Inst com c. 21. Lit. l. 1. c. 7. Flet. l. 3. c. 2. 9. Dier f. 49. fol. 91. Now how Livery and Seifin is to be we have spoken else-where 20. There are three kinds or species of Donations in case of Death One which is made meerly upon the thoughts of Death when there is no feare or danger of Death â—igh Another when the party being moved with the imminent feare of present Death so gives that the Gift immediately becomes the Donees The third when one being prickt with the danger gives out so that the gift is forth-with the Donees but after his deceale o Brac. l. 2. c. 26. Flet. l. 2. c. 57. What persons may alienate and what not TIT. VIII THis Chapter is so near the other that we must necessarily repeate many things which we mentioned there But the word â—â—lienating being more generall then giving those things which we shall set downe heâ— have a more universall use It happens sometimes that he that is Oâ—ner of an Estate cannot alienate it The King cannot alienate the ancient Mannâ—â— annext to the Crown but every King is â—â—liged to revoke the alienations of the
certainty by the Legatee c Fulb. par 38. b. 16. There hath been a great difference in opinions amongst our learned Lawyers and that according to the diversity of Species in the cases of Corn c. sowen by those who had Land in possession and not severed from the Soil For example Tenant in Dower sowes Corn and dies before Harvest She may devise the Corn though not yet ripe d Perk. 521. Stat. Merton c. 2. Flet. l. 2. c. 37. which is true also as to those Lands which she holds Joyntly or severally under the notion of Dower e Perk. 513. Fulb. 17. â—ural Devises 38. 17. But if contrary to custome she be endowed by the Guardian of the Heir and dying leaves Corn growing her Executors may be ejected by the Heir when he comes to age and hindered from gathering the profits f Perk. 524. So if the Heire coming of age recover Lands against his Mother or Widow of his Ancestor in a writ of Admeasurement of Dower he shall recover not only the Lands but the Corne also which is by him deviseable g Id. ib. 18. Tenant by the Courtesey leaseth forth his Lands and dyeth The Lessee shall reap his Corn and may if he dye before it be ripe devise it h Id. 514. which may also be done by a Parson of a Church as to his glebe Lands i 28. H. 8. c. 11. 19. So also he who hath Lands in right of his Wife his VVife dying after the Corne sowen may reap the benefit ar devise it k Perk. 518. Lit. l. 1. c. 8. which his Lessee also in case hee have leased out the said Lands may doe l Perk. 513. Fulb. par fol. 37. b. 20. Execution is taken upon a Mannor of the Debtors by vertue of a Statute Merchant The Creditor sowes the Land and before Harvest a Tenant of the said Mannor dyeth the Custody of whose Heir being under age satisfieth the Debt This will not hinder but that the Creditor may also devise the Corn not yet ripe or gathered m Ib. 516. 21. Mony is paid at the day upon a mortgage yet it seems the Creditor although some are of a contrary opinion may devise the Corn which he sowed and which as yet remains ungathered n Id. ib. 22. Tenant in Taile leaseth out his lands for life The Lessee sowes Corn the Heire recovers upon a Formedon in the Descender and dyeth before the Corn is gathered This Corn according to the opinion of some though others contradict it hee may devise by Will o Perk. 520. Fulb. fol. 37. b. 23. Tenant in Fee-simple dyeth and leaveth an only Daughter and a VVife with Child The Daughter enters and sowes the Land but before Harvest the VVife is delivered of a Son to whose use the next Kinsman possesseth himselfe of the Estate in this case the Daughter may devise the Corn. p Perk. 521. Fulb. fol. 38. a But we will put the case thus The Mother before the Sonne is born recovers Dower against the Daughter and hath that part assigned by the Sherifte which the Daughter sowed In this case she may devise the Corn yet it is a Quaere q Perk. ib. 24. Tenant for tearm of yeares commit waste upon which the Lessor recovers the Land In this case the Lessee cannot devise the Corn r Id. 515. Neither can he if another upon a more ancient Title recovers the said Land against the Lessor s Id. ib. 25. Lessee of a House for forty years deviseth the said House to A. without mentioning the Title which he hath or giveth The Question is what he deviseth And it is adjudged that the Testator deviseth that title which himselfe hath Viz. The term of forty yeares t Dyer fol. 307. n. 69. 26. Lessee for years be que at heth his Interest to A. the remainder of the years to B. in case A. dye before the term expired A. is in possession by vertue of the Devise and not long after Aliens his Right and dies before the terme expired The Question is what remedy B hath to recover his Right as to the remainder of the years unexpired And it was adjudged that he is without Remedy u Id. fol. 75. n. 18. f. 140. n. 41. But if the Testator had devised so many years of the Lease to A as A should live and had ordered B. to succeed in the residue In this case A. could not have so alienated the Term but that B. should have succeeded in the Remainder unexpired w Dyer fol. 358. n. 50 51. fo 359. n. 52. 27. Disseisee recovers against the Disseisor The Disseisee may devise the Corne sown but if it shall be severed from the ground the Disseisor may take it away or devise it x Perk. 519. yet he shall pay the Disseisee Damages y 6. Ed. 1. c. 1. 28. A Testator can neither devise Actions if they be not Judgments nor instruments of Actions z Brac. l. 2. c. 26. a. 28. n. 2. l. 5. tr 5. c. 10. n. 3. Fulb. fol. 30 31. but hee may that which is due upon Action Yet is this devise conditionall namely if the Debt be paid or recovered by the Executors a Perk. 527. 29. Our Law respects principally as doth the Civill Law and Reason likewise the will of the Testator b Cook l. 3. Bullers case fo 27. Fulb. fol. 46. Plow 343. if not contrary to Law If therefore a man having both a Sonne and Daughter living deviseth his Lands to his Daughter Although the Sonne be more worthy yet the Daughter shall have the Lands c New terms v. devise If he adds and annexeth a Condition to the devise which is neither impossible in Nature or Law this shall suspend the devise untill it be performed d Brit. c. 36. Perk. 570. Brac l. 2. c. 6. n. 1 2 3. Swinb part 4. Sect. 13. And this is so farre true that sometimes words are extended beyond their naturall intent e See the rest of his tit and sometimes for causes restrained f Fulb. 41. Plâ—w 540. by reason of the conjectured will and meaning of the Testator 30. A. deviseth Lands to B. conditionally that he pay so much money Although by force of words B. hath an Estate for life only yet the Law adjudgeth him to have a Fee-simple g Brac. Test 18. Perk. 555. for otherwise if B. should dye in a short time He might receive more prejudice then profit by the Devise 31. A. deviseth all his Lands and Tenements to B. B. shall not only have all the Lands and Tenements which A. had in possession but the Reversion likewise h Termes v. Devises 32. If Lands be bequeathed to One to have any to hold to him for ever Or to have and to hold for him and his Assigns for ever In both Cases the Devisee hath an Estate in Fee-simple
Lit. l. 3. c. 4. unlesse the Donees be a Body Politick and receive under that notion or at least one of them in which case they are tenants in Common g Id. ibid. 3. Partners and joint-tenants differ two wayes the former being joyned by necessity and are called Partners meerly in respect of their inheritance Joint-tenants have their name either from purchase or Gift and are joyned together by their own Wills and not by necessity h See the former quotations 4. Thereare also some who are Joint-tenants only for life and yet have severall inheritances as where Lands are given to two men or two women and to the Heirs of their bodies in this Cafe so long as they live they are called joint-Joint-tenants for one of them having Issue and dying his fellow shall have the whole during his life who also if he shall leave Issue and die his Heir with the Heir of him that died before shall hold the said Lands in common i Iâ—st c. 15. and if one of the Donees die without Heire his part for defect of an Heire shall after the death of his fellow revert to the Donor k Littl. l. 3. c. 3. 5. Tenants in common are they who hold the same thing as Lands or Tenements Chattells personall or reall jointly but by severall Titles l Id. ibid. c. 4. for if one parcener alienate or give his Right to a stranger the stranger and the rest are Tenants in Common though the rest amongst themselves enioy their former appellation 6. Wherefore Tenants in Common differ from partners in this that these do not possesse any thing in Common by Right of inheritance as do the others nor are they ioyned by any necessity and from Joint-tenant in that they hold a thing in Common by divers Titles or at least the Tenants are naturally so unequall that they cannot admit of any coniunction such are bodies politick among themselves or with single persons m Id. ibid. 7. First for partners these though they die before Partition transmit and leave their part to their children if they have any otherwise to the rest of their fellows n Id. ibid. c. 2. Inst c. 14. 8. Partition may be made either by mutuall consent o Dier fo 179. or if some refuse by the power of the Judge for he who desireth to have his part divided may have a Writ of Partition by which he shall compell the rest to divide p F. n. b. 61. K. 259. C. 260. B 261. C. but if one woman Partner entermarry and having Issue dieth the Husband being Tenant by the courtesie may compell them to a Partition if it be not already made q Littl. l. 3. c. 2. 9. Littleton doth very fully describe the manner of making Partition both by consent and compulsion but this is rather matter of fact then of Law that onely is observable that if Partition be made by consent one or more of the Partners being under age it may afterwards be corrected wheâ— they come to full age provided they do not confirm it when they come of age by receiving the profits r Id ib. and if it be a Fee-Tail although all be at age at the time of the Partition made yet their Heirs may disagree to 〈◊〉 s id ib. so also if an unequall Partition be made by the Husband of co-Heirs after Marrimony is dissolved either of them may disagree t Id. ib. F. n. b. 62 E. 10. If after Partition any part of either oâ— the Partners Estate lye evicted by Law He or she whose part it was may compell the rest to a new Partition and recover a lawfull part in those Lands which the rest hold u Little ib. c. 2. 11. If there be an Advowson in the inheritance and the Partners will not consent in the Presentation of a Clerk then the eldest shall present in the first vacancy and the rest according to their Case and to this they may be compelled if they refuse to agree and every one hath therr lawfull remedy if they be hindred from presenting in their turn w F. n. b. 34 T and 36 C. 12. If there be two Joint-tenants of a Fee simple withi a Burrough where Lands and Tenemenrs are divisible by Will and one of them devises his Right to a stranger and dies this Devise is void and the reason is because that part which by the Law at his death comes unto the other by the Right of â—â—crease and out of Descent cannot any way 〈◊〉 conveighed to another by a Will which â—â—es not its Operation till the Death 〈◊〉 the Testator from him that claims the â—â—ole x Littl l 3 c 3 13. Two take a Lease joyntly for years â—â—th this condition agreed to between the â—â—ssor and them that if the Lessees die beâ—â—â—e the Terme ended the Lease shall be â—â—id The Lessees make Division and one 〈◊〉 them alienateth his part and dies the 〈◊〉 Lessor cannot reassume the part of him â—â—at died but the Alience shall hold it duâ—ing the life of him that surviveth nor hath â—ccupation in this Case any force but it two â—â—ke a Lease for theit lives and make parâ—â—tion either of them dying his part immeâ—iately reverts to the Lessor y Dier fo 67. c 18 14. Two are joint-Joint-tenants for life one of which lets out his part by Indenture to a third person for years reserving a Rent from it to him and his Heirs and dies the question is whether by his death the ritle did wholly vanish or whether the surviving joint-Joint-tenant ought to hold the whole for his life if he ought then whether he were left to his own libertty notwitstanding the Lease of his fellow or to take onely the Rent reserved upon that moity and it was adiudged by the Justices that the surviver ought to hold the whole Lands for life and that free and disobliged from the others Lease z Id fo 178 n 5 15. And this is the difference between joint-Joint-tenants in Fee and Partners that neither of the Donees can charge his Lands whiâ—â— he holds pro Indiviso with any Rent longâ—â— then for life but a Partner may and the râ—â—son is it cannot preiudice his fellow or 〈◊〉 Heir who derives his Right not from hiâ— but from the Donor but Partners succeedinâ— one the other for defect of Heires may froâ— one anotherr derive their Right a Littl. ib. c. 3. 16. Which notwitstanding in letting 〈◊〉 clearly otherwise for if one of the Doneeâ— who holds pro Indiviso to him and his Heiâ—â— let out his Right for a compleat Term 〈◊〉 dies the Lessee after his death may retain 〈◊〉 during the Term nay he may enter into tâ—â— Lands although they were not delivered unto him in the Lessors life time or anâ— wayes possessed by him b Id. ib. and the reason 〈◊〉 diversity between a Rent Charge and a Lease is iudiciously given by Littleton
of Patronage in reâ—pect of the Fee which we possess and these 〈◊〉 tearmed the Lords of the Fee a Prat â—i lexicon verb. Patronus And theâ—â— are very few Infants that succed to good Estates who escape their Wardship and Câ—stody For as there is none with us except 〈◊〉 Crown who are seised of their Estates anâ— Tenements in a freer or larger Title thâ—â— Fee so is there scarce any Fee less worth But that it is bound to the Lord or a Patroâ— by Knights Service now those things whicâ— are proper to this Service are Gard Maâ—â—age and Releife b Lit. l. 2. c. 4 1. An Infant Heir who succeeds his Aâ—cestors c F. B. 262. Fletl 1. c. 11. Dyer 362. Gla. l. 7. c. 9. Bract. l. 2. c. 32. Brit. c. 66. Lit. l. 2. c. 4. in Knights Service remaines under the Guard and Custody of his Lord uâ—till he come to perfect age For before thâ—â— age he is not adjudged capable of those warâ—ick accomplishments requisite for a Knight â—nd due to his Lord by reason of his Teâ—ure notwithstanding that it falls out someâ—imes that age being dispensed with some are elected into the order of Knighthood before â—hey be compleat one and twenty years old But our Law supposeth these to be able to do those Offices due to the Lord of the Fee wherefore they are out of the custody though Infants d Brook tit Gard. 42. 72 Fulbeck in paral f. 29. Plow 267. 2. And this right of custody springs from â—his reason that since he who holds by Knights Service is obliged according to the â—greement at the first investing of the Estate â—o follow his Lord as a Knight in the Kings Wars It is presumed that no man will be more carefull in training up the Infant in â—eats of Armes then the Lord himself e Fort. c. 44. Polid. Virg. l. 16. 3. But if such an Heir be female she remaines in custody according to the Ancients f Bract. l. 2. c. 37. n. 3. but till fifteen and according to our moderns no longer then sixteen years of age g Lit. l. 2. c. 4 â—or no sooner doe they come to that age but they are immediately presumed to be able to govern their house and to marry such a Husband that shall be capable of doing the Service due to the Lord of the Fee h Bract. Lit. ibid. But if shee be compleat fourteen years old at the death of her Ancestor neither her Body or Land shall fall under the Custody of the Lord. i Lit. l. 2. c. 4. Mert. c. 6. West 1. c 22. Instit Jur. Com. c. 24. Br. tit Gard. 7. 4. But if in this case it come in question whether the Heir be an infant or not he shal remain in custody untill it be determined k Brac. l. 2. c. 37. Brit. c. 66 fol. 167. b. 5. If a Knights Fee discend to an Heir 〈◊〉 the Mothers side the Father living shalâ— have the Guard of his Body and the Lord of the Land for it is a Maxim that no one as to his Person shall fall into the custody of the Lord his Father living l Lit. l. 2. c. 4. 6. If Lands discend to a Wife who after Issue had by her Husband dieth So that the Husband for default of having possession 〈◊〉 the Lands in the life of his Wife cannot be Tenant by the courtesie of England In this case the Issue unlesse it be Heir to the Fatheâ— as being his eldest Son shall be in custody And if such Issue be a female and an Infant at the death of her Mother she shall remain If her Father have a Son living in custody notwithstanding her Father be alivâ— l F. B. fol. 143. 7. Lord of a Knights Fee may transfer the gard of his Tenant to another From whence there ariseth this distinction of Guardian iâ— Law and Guardian in Tail Guardian iâ— Law is the Lord himself Guardian in Tail is he to whom the Lord hath granted the the Custody of his Heir n Bract. l. 2. c. 37. n. 3. Lit. l. 2. c. 4. 8. There is also a Guardian simply and originally so called and a Guardian by accident from the cause of custody Originally is he who in right of his Fee hath the custody of his Tenant Causarily is he who for that he hath the custody of his own Tenant being yet an Infant hath upon that score the custody of another who is Tenant to his Ward o F. B. fol. 139. d. Dyer 123 n. 38. For an Infant cannot be Guardiâ—â— of an Infant p Flet. l. 1. c. 11. â— When there is an Heir male or female â—ho hath many capitall Lords they cannot 〈◊〉 have the custody of the Heir and thereâ—â—re one must be preferred before the rest â—nd that is he who first infeoffed the Tenant 〈◊〉 Knights Service the rest shall only be â—â—rmitted the custody of the Lands which â—â—e holden of their Fee q Bract. l. 2. c. 37. n. 4 c. Stamf. Prerog c. 2. 10. But if any Heir hold of the King in â—â—pite by Knights Service whether he hath â—â—her Lords or not the King shall be preferâ—â—d before the rest to the custody of the â—eir and that notwithstanding Priority or â—osteriority of infeoffing For that the King â—ath no equall or superiour in his Realme r Glan l. 7. c. 10. Bract. Stam. ut sup 11. A Ward who is once freed from the â—â—stody of his Guardian as by marrying or â—ontracting Matrimony with his consent â—â—all not return again into the custody And â—â—at notwithstanding he be under fourteen â—ears of age or afterwards that he shall marâ—y before 21. s Bract. l. 2. c. 38. n. 1. Lit. l. 2. c 4. 12. If there shall be many Daughters Coâ—cites who hold by Knights Service They â—hall be all under the custody of the capitall â—ord and none under the custody of the Mother t Bract. l. 2. c. 37. n. 6. Of the Legall Guardianship of Parents TIT. XVIII THE Father is preferred before all others to the custody of his eldest Soâ— For if an Inheritance fall to such an Infaâ—â— who hath a Father living notwithstanding that the Lands if they be holden in Knight Service be in the custody of the Lord of the Fee Yet the Body of the Heir shall remaiâ— with his Father a Lit. l. 2. c. 4 Cook l. 3. Case Rat. fo .. 37. 1. So also the Mother of an Infant 〈◊〉 holds in Socage shall have the Custody 〈◊〉 the Body and Lands of the Heire before aâ—â— kindred either of the Fathers side or Mothâ—â— side Of Fiduciary Guardianships TIT. XIX THat Tutela Fiduciaria which the Romanâ— imposed upon the male children theiâ— Parents being dead and upon the Childreâ— of Patrons our Ancestors seem wholly 〈◊〉 have neglected Concerning the first Weâ— have nothing determined save that which we mentioned before of the legall Guardianship
ground the roots grow so if a Tree be set in the bounds of Lands and the roots reach into anothers soil the tree shal be common nor shall it be permitted the Neighbour to cut up the roots and this is to be understood in case where my tree puts forth its roots so far into my Neighbours Soil that without it it cannot live or grow for where it hath sufficient to maintain it without those roots it shall not be in Common t Bract. ib. n. 6. Flet l. 3. c. 2. 32. And by the same reason that Plants having taken roote and immoveable buildings follow the property of the Soil by the same reason doth any kinde of grain when it shall be sown and take nourishment and grow in the ground nor is it materiall whether it came there by accident or not u Bract. ib. Brit. c. 33. 33. There is also an accession by specification or changing the Species as if a man create a new Species out of a substance which was anothers the property shall be in him that made the Species 34. And in like manner by confounding as in â—icquids by confounding wine with hony So may there be confounding also of Solids although it be wrought with very much difficulty viz. The Species as Gold Silver Lead Iron the product of which shall be common whether they will be seperated or not amongst those by whose desire the bodies or Species were intermixed so also in case of an intermixture purely accidentall which will not admit of Seperation but if it be possible to seperate the substances then each shal have his peculiar part in weight and measure according to that which he had in the originall and rude matter w Bract. d. c 3. n. c. Flet. l. 3 c. 2. 35. But if one mans corn be mixed with anothers the Corn shal not all be common but each one shal claim his share from the heap according to his quantity or measure of Corn nor can there be any community in Corn because single bodis remain in their own proper substances as in case A. his Herd intermixeth with mine it cannot be conceived that the Herd should become common and although it be very difficult in a manner impossible to seperate one mans corn from anothers 〈◊〉 there may be sufficient argument to give◠〈◊〉 tle to the claim of an individuall part 〈◊〉 the whole heap of Corn were in commâ—â— Namely that he may claim so much of 〈◊〉 heap as was his now there is a difference between confounding and mixing and that 〈◊〉 three particulers For Species are said to 〈◊〉 mixed and matters and substances to be â—â—â—founded Also Species mixed remain in 〈◊〉 same substance and Species but confoundeâ— they are transferred into another 〈◊〉 x Bract. ib. Flet. ib. 36. If a man buy an Inheritance 〈…〉 of another whom hee beleeves to be them owner of it when indeed he is not or shaâ—â— Bona fide receive it of gift or upon any â—â—ther just consideration Naturall Reason â—â—leth that the profits which he hath receive shall be his for his tillage and care y Fulb. Bargaines f. 13. b. 14 Eli. 311. Dyer 〈◊〉 this is not permitted to a wilfull 〈◊〉 of another mans Inheritance z Cook l. 1. 98. Perk. 529. Stat. Glocest c. 1. An. 6. Ed. 1. 37. Now it is much questioned whethâ—â— Tenant for life which is almost all one 〈◊〉 the Roman Fructuarij hath any right 〈◊〉 to profits and fruits unreceived And 〈◊〉 Books distinguish between fruits growiâ—â— meerly by the operation of the divine naâ—â— for as to those they conclude that Tenant 〈◊〉 life may dispose them either by his 〈◊〉 Will and Testament or otherwise a Perk. f. 513 514 515 518 519 520. 38. There is a propriety gained by â—â—â—ding as in case of Treasure found b Bract. ib. l. 3. tr 2. c. 2. n. 3. Plow 315. 323. noâ— by Treasure we mean an ancient hâ—ardiâ—â— of Money or other Meâ—â—all whose memorâ— is so much worn out that it hath not now aâ—y owner and so by the Law of nature it is â—is who found it to exclude others c Flet. l. 1. c. 43. otherâ—ise if any man for gain fear or to keep it â—ids and burieth any thing under ground this â—â—all not be said a Treasure and of this there â—â—ay be Theft committed Treasure is suppoâ—ed the gift of fortune and no one ought by â—he labour of his Servants to seek after it â—or for it to dig up the earth and seeing Treaâ—ure is no particuler mans goods and was anâ—iently the finders by the Law of nature now â—y the Law of our Nation it is become the Kings d Bract. l. 3. tr 2. c. 3. n. 4. and this is true for things found â—n the earth but it is otherwise for things found in the Sea e Brit. c. 17. as for other things which are found above ground they remain â—he owners stil if he make claim within a year and a day nor is the property in the finder â—ntill he hath made publication of the things found in the Markets and Churches next adjoyning f Brit. ib. Dr. Stu. l. 2. c. 38. Dyer 121. n. 14. yet at this day if they be things â—nanimate they escheat to the Lord of the Mannor for ever nor can any prescription of time entitle the finder unto them g Brook Act. sur le Case 109 113. and the reason of difference is this That animall things cannot be kept and maintained without charge which is otherwise in inanimate 39. Those things which accrue unto us by Tradition or Livery are ours by the Law of Nations Nothing being more consonant to naturall Aequity then to have the will of the Donor confirmed when it transfers any thing upon another Now Tradition is a free transferring of a corporeall thing either of ones own or anothers from person to person with ones own hand or anothers as administratory provided it be with the will of the owner into the hands of another And Tradition is nothing else in another sense but the Induction of a corporeall thing into possession h Bract. l. 2. c. 18. n. 2. Brit. c. 40. Flet. l. 3. c. 2. nor is it materiall whether the Owner himself deliver the thing given or sold with his own hand or another by his appointment as his Attorney if himself shall not be present or a Messenger with Letters Patents of Attorney intimating and containing the will of the Donor or Selleâ— i Bract. l. 2. c. 18. 40. Now the bare will of the Owner 〈◊〉 the case of Livery is sufficient for the transferring of any thing to another as changing the cause of possession Provided it be witâ— Solemnity and that there doth not waâ—â— Witness as in case a man lets a thing to another or grants it for tearm of life or years and shall either sell or give the same unto him afterwards
feodaâ—â— for he is the first of a new Family who yeiâ—â— Homage and Fealty c Lit. l. 2. c. 7 ancient Fee is who the Feodary and his Ancestors time out 〈◊〉 mind have held such a Fee and here the Fâ—â—dists d Id. ib. new terms tit Hom. Auncest place a Medium between these two 〈◊〉 paternal Fee which comes by four degreese Discent and they define that to be the aâ—cient which discends from more e Duar. com in cons feod c. 4. n. 10. 10. Fiftly Fee is divided into ecclesiasâ—â—â—â— and Laick or Seculer Ecclesiastick is thâ— which is possessed either by Ecclesiastick persons or which belongs to Churches 〈◊〉 that which is held by Lay persons and cannâ—â— be possessed by Ecclesiastick and indeed 〈◊〉 Fees as with us laick unless they become â—â—ther by some speciall grant from the King which we call giving to Mortmain f Mag. Char. c. 36. 18 E 3. Stat. 3. c. 3. 15 R. 2. c. 5. Pol. Virg. l. 17. Eng. Hist 11. Sixthly Fee is distinguished 〈◊〉 Masculine and Feminine Masculine is thâ— which is given to the Feodary and the Heiâ— Males of his Body and of this kind 〈◊〉 those of Dukes Marquesses Earles Viscounts 〈◊〉 Barons for the most part Which 〈◊〉 defect of Heirs Males are extinguished 〈◊〉 return into the supremacy from whence â—â—ey Issued but these are at this day rather â—itles of Honour then Fees in regard they â—re for the most part conferred without 〈◊〉 â—emenine is that which may discend to â—â—e â—â—male Issue as when it is given indefinitely 〈◊〉 the Feodary and his Heires and so that or default of Heires males it may come to â—he females and their Issue g Bract. l. 2. c. 34. l. 1 c. 8. n. 4. 12. Lastly Fee is either pure or simple or â—onditionall Simple is that which is held 〈◊〉 a simple and perpetuall Right to the Feoâ—ary and his Heires for ever Conditionall 〈◊〉 that which is granted to the Feodary and â—uch or such Heirs for default of which it reâ—urns to the Donor and his Heirs and thereâ—ore he that hath Lands given to him and his Wife and to his Heires begotten of her in â—ase she dy without Issue before him is called â—enant in tail after hope or possibility of Issue â—xtinct For this kind of Fee with us is called Fee-tail comming from the French word Tallier to cut part or divide as if we should say a Fee by some means severed or diminished h Lit. l. r. c. 1 1 Instit Jur. com c. 11. 13 13. And this kinde of Fee is double viz. Taile generall and Taile speciall Generall Taile is where a Fee is given to the Feodary and the Heirs of him lawfully begotten or to be begotten for in this case the Children of either Wife whether first second or third shall inherit speciall Taile is where a Fee is given to the Feodary and his Wife and to the Heirs of either of them l Lit. ib. Inst Jur. c. 12. West 2. c. 1. or according to some when it is given to him and his Wife and one Heir of their Bodys lawfully to be begotten and one Heir of that Heâ—â— only m Perk. 171 but this whether it be properly to be stiled a Fee for want of perpetuity may 〈◊〉 be doubted 14. Now a Fee is not limited to one Fâ—odary but may be possessed by more so thaâ— they are called Partners Joynt-Tenants 〈◊〉 Tenants in Common n Lit. l. 3. c. 3 Inst Jur. com c. 15. Partners are either by Law or custome by Law are Sisters Co-heires because the Heires Males being dead they equally succeed their Parents in the Fee o Id. c. 1. 3 by custome are Brothers in maâ—â— Counties especially in Kent from the Custome of Gavâ—lkind called so from the equality of apportioning the Inheritance p Id. c. 2. Joynt-Tenants are they which hold Lanâ—â— or Tenements by one and the same Title but not hereditary Tenants in common 〈◊〉 those which possess Lands or Tenements 〈◊〉 indiviso by divers Titles as in case one Co-Heire sells her part to a stranger he is not Joynt-Tenant with the other Partners but is called-Tenant in common q Id. c. 4. Inst Jur. com c. 15. 15. A Fee with us is not only of Corporall things but incorporall also for the custody of a Forrest r Vid. N. b. f. 6. Dyer f. 30. n. 209. Prison s Id. f. 41. or County t 28 Ed. 1. Stat. 3. c. 8. may be granted to one in Fee and the same may be said of an annuall Rent u Vid. N. B. foâ— 8. and of an advowson severed and not appertaining to any Mannor which we call an Advowson in gross w Lit. l. 1. c. 1. Bro. tit Tenures 105. now there are many services pertaining to a Fee which we shall mention in the next Chapter 16. There are belonging even as it were to the very nature of Fees Fee farm free farm and free Tenement Fee farm is a Tenure of Lands and Tenements granted to any one and his Heirs for a yearly Rent which equals the third x F. N. b. fol. 210. b. or at the least the fourth part y Old Tenure ver Fee farm of the true value without any other Services then what are expressed in a Charter of Feoffment z West part 1. symb 463. some affirm that a Fee farm can only be granted for the life of the Farmer and some will have it Fealty although not expressed a New terms of the Law in the Feoffment and others that reasonable releife b Bract. l. 2. c. 39. n. 9. is due of right from the Fee-Farmer to the Donor but the condition of this Tenure is such that if Rent be not paid by the Tenant for the space of two years then the Lord or Feoffer may recover the Lands to him and his Heires upon his action 17. Britton makes free farm where Lands and Tenements are so given that the nature of Fee by Feoffment is changed from Knights service to certain annuall Service so that there is neither Marriage nor Releife requirable nor any other service expressed in the Feoffment c Brit. c. 66. but I do not remember that I have read this in any other Author 18. Free Tenement or free-hold is where Lands and Tenements are held only for life of the Tenant and such a Tenant is said to hold In Dominico suo ut de libero Tenemento d Dyer f. 221. n. 19. f. 153. n. 10. But if it shall be said that Fee is naturally a Free-hold I shall not deny it only must add that it is also somewhat more because perpetuall e Inst Jur. com c. 10. Lit. l. 1. c. 6. Bract. l. 4 tr 1. c. 37. but of that Free-hold which is meant here there are two kinds One which is for tearm of life even by the very custome and Law the
other which is so only by agreement Of the first sort are Tenants by the Curtesy of England and tenants in Dower for such is the Civillity and courtesy of our nation that if a man marry a woman that is an Heir and have Issue by her born alive that Land of which he is seised in right of his Wife in her life time he shall hold after her death for tearm of his own life f Bract. l. 5. tr 5. c. 30. n 7. Flet. l. 6. c. ult Dr. Stu. l. 1. c. 7. l. 2. c. 15 Dyer fol. 25. n. 159. f. 95. n. 35. In. J. co c. 8 which Law some ascribe to Henry the first g Spec. Just l. 1. a woman also whose Husband in his life time was seised in Fee shall have the third part of his Estate he being dead and in some places the halfe h Lit. l. 1. c. 9 in some the whole for her Dower i F. N. b. fo 150. P. Bract. l. 4. â—r 6. c. 13. n. 2. Dr. Stu. Bri. 1. c. 10. if at least she be nine years old that she may claim a Dower k Lit. l. 1. c. 4 Flet. l. 5. c. 22. there is another sort of Dower which is free-hold also namely Dower which is by consent which is that that is agreed on before marriage at the Church door or otherwise between the man and Wife l Lit. l. â— c. 4. Inst Jur. com c 9. Flc. l. 5. c. 22 Brac. l. 2. c. 39. breifly all Lands and Tenements which are either by bargain gift or any other contract held for term of ones own life or anothers are comprehended under the name of Free-hold m Inst Jur. com c. 6 Bract. l. 2. c. 5. n. 7. 19. And as Fee n Dyer f. 213 n. 42. fol. 288. n. 55. so free Tenement or free-hold may be of a thing incorporall as an office for life o Bro. tit Tenures n. 25. Dyer f. 211 n. 19. Thus have I given you a description of estates in Fee Inheritances and Free-holds the third is a kind of possession or Tenure comprehended under the name of Chattells â—â—lls and they are those which we hold 〈◊〉 Tearm of years or at the will of another â—enant at will is two fold viz. either by comâ—on Law or by the custome of any Mannor â—hich is by Copy of the Court Roll or by â—erge p Inst Jur. Com c. 2. 3. Lit. l. 1. c. 9. Kitch fo 102. b. Coo. l. 3. case Heydon fo 8. a. b. f. 9. But this kinde we referr to the â—hapter of uses Of which hereafter q c. 4. of this Book we all speake Of the Services which Inheritances are bound unto TIT. III. BEcause Services are reckoned amongst those things which are tearmed incorpoâ—l we shall take a view of them now there a certain service or Servitude which subâ—cts one man to another a See l. 1. c. 3. but it is not this which wee intend here to treat of but that which subiects one Estate or Fee unto other Yet is it like that other which renâ—rs one man a Servant to another for as at constitution is called Jus Gentium the â—aw of Nations which against nature subâ—â—cts a man to the Power of another so may also be said of Service or that constitution â—hich subiects one house to another and one state to another And thus Services may 〈◊〉 divided into such as appertain to Cities â—nd such as are Rurall b Brac l. 4. those which beâ—â—ng to Cities and for the most part such as the Civil Law mentions namely such 〈◊〉 inherent in the very buildings and theâ—â—fore called from the City Fees because 〈◊〉 call all buildings City Inheritances thoâ—â— built in Villiages c Bract. ib. Of this kind are thâ—â— not to build a House higher not to hinâ— lights or prospects to convey and keep 〈◊〉 Gutters and sincks from the yard or 〈◊〉 of ones Neighbour to lay a prop upon 〈◊〉 ther mans Wall or ground for the suppâ—â—tance of a House to beare an Incumberanâ—â— to have a Way Road or Passage For thouâ—â— a Way and Road be Rurall Country Seâ—vices yet are they City also when applyâ— to City Inheritances For it often happeâ— that a neighbour hath a power and libeâ—â— of passing through a Yard belonging to 〈◊〉 House or of going up ones staires to 〈◊〉 own chamber Rural are such as are not inâ—â—rent to buildings but are wholly withoâ—â— them And these also are almost the saâ—â— which the Civill Law reckons if we exceâ—â— those which the customes of Fees have intrâ—duced as a Road Path-way Aqua duct d Dyer fo 248. n. 80. fo 319. n. 7. drawing of water folding of Cattell paâ—â—ring of Cattell quenching of Lime digginâ— of Sand taking of Stone and the like Noâ— both the kindes of Services are either reall 〈◊〉 personall with relation to the thing or person to whom they are due 1. Fee Servitude which both by our Fâ—â—dists and Lawyers is called Service is either military and noble or Rustick and Ignoble e Fulb. divis of seign and services f. 20. b. military is that which performs some duty belonging to military discipline or some other thing that is honorable and this also â—s double one which is due to the King only f Lit. l. 2. c. 8 the other to the Lord of the Fee notwithstanding that he be Feodary to another that which is due to the King is double also namely Serjeanty and Castle-gard 2. Serjeanty is either Grand or Petit Grand is where any one in the name of his Fee is personally bound to perform any Office or other honorable thing to the King g idâ—b Flet. l. 1. c. 10. and l. 3. c. 16. which some also affirm may be due to a common Person h Bract. l. 2. c. 35. n. 6. of this kinde is the bearing the Kings Standard or Spear in Warr the leading conduct of his Army the performing the Office of Martiall the sounding of a Horn at the incursion of any of the Kings Northern Enemies to send an armed man if himself will not goe to fight under the King when ever necessity shall require within the four Seas to carry the Kings Sword before him at his Coronation to perform the Offices of Sewer Taster Carver Butler or Chamberlaine i Coo. l. 2. case Cromwell fo 81. a. And in such Services all the Barons in ancient time were obliged 3. Petit Serjeanty is that which renders to the King as an acknowledgement of the Tenure yearly a Bow Spear Dagger a paire of Gantleâ—s or a pair of gold Spurrs an Arrow a Horse or any such small thing which belongs to War Now he that holds such a Fee doth not perform any personall Duty but rather Patrimoniall and reall and that certain And therefore differs somewhat from the very nature of a military Service having a property of a