hereafter more plenteously So likewise it is of Lands given to an House Ecclesiasticall in pure and frank alms Moreover if Land be given to a man and to his blood or unto him and to his seed he hath in both cases an estate of Inheritance for in the last he hath a fee-tayl and in the other a fee-simple for these words seed and blood and such like do imply words of Inheritance Also if Lands be given to a man and and to his Heirs males or females he hath by this gift a fee-simple because it is not expressed of what body the Issue shall come But now it is to be seen The half-blood who be said to be a mans Heirs in the Law ye shall therefore know that my Brother or Sister by the half-blood that is to wit by the Fathers side and not by the Mothers or contrariwise by the Mothers side and not by the Fathers shall never be mine Heir A Bastard shall be no Heir nor none that come of them neither my bastard can be mine Heir nor mine own naturall Father nor Mother nor Grandfather nor Grandmother can be mine Heir for it is a principle and ground of the Law A ground of the Law That Inheritance may lineally descend but ascend it cannot and therefore if I have Lands in fee-simple and die without Issue of my blood my Father cannot be my Heir but my Fathers Brother or Sister shall and then if my Unkle or Aunt die seized without Issue my Father shall have the Lands as Heir to mine Unkle and not as Heir to me for that cannot be but it may go from me to my Unkle or Aunt well enough for that is not called a lineall ascention but a collaterall descent Also ye shall understand Lineall and Collaterall descent That a lineall descent is when the descent is conveyed in the same line of the whole blood as Grandfather Father and Sonne and so down and collaterall descent is of another branch from above of the whole blood as the Grandfathers Brother or Fathers Brother and so descending And ye shall also note That by the Common Law of this Realm the eldest Sonne shall have the whole Inheritance and after him if he have no Issue the second Sonne and so forth and if I have no Sonnes but Daughters then shall all the Daughters together inherit which be called Coparteners Copartners But if I have no Issue at all neither Sonnes nor Daughters then shall my eldest Brother in heritage succeed me but if I have no Brother then my Sisters if I have any if not my Unkle by my Fathers side if the Lands be of mine own purchasing or if they descended unto me from my Father and to be short if there be none in life of my Fathers side the purchased Land shall go to my Mothers side and if there can be found no Heir neither by my Fathers side nor yet by my Mothers then shall it Escheat Escheat as they call it to the Lord of whom it was holden for every Land must needs be holden of some Lord as shall be hereafter shewed But if Lands descend unto me by my Mothers side then if I fail of Issue the Lands shall descend only to my Heirs of my Mothers side and never to mine Heirs of my Fathers side as on the contrary side if I have Lands or any Tenements by descent from my Father or his blood they shall never descend to my Heirs by my Mothers side And thus you see a great difference in this behalf Diversitie between purchased Land and Lands which descend from an Ancestour If there be three Sonnes and the middle Sonne purchase Lands and die without Issue the eldest shall have the Lands and not the youngest And it is a principle in our Law A ground of the Law That none can be mine Heir of Lands that I hold in the Fee-simple unless he be mine Heir by the whole blood that is to say both by Father and Mother for if a man have Issue two or three Sonnes by sundry Wives and the eldest purchaseth Lands in fee and dieth without Issue his half brethren I mean these that be not his Brethren both by the Fathers side and Mothers side shall not have his Land but it shall go to his Unkle Likewise if a man hath by his first Wife a Sonne and a Daughter and by his second Wife another Sonne and the Sonne by the first Wife purchaseth Lands in fee-simple and dieth without Issue the Sister-germaine that is to say both by the Fathers side and Mothers shall have the Lands by descent as Heir to her Brother and not the younger Brother for as much as the younger Brother cannot in this case be Heir of his elder Brother because he is no Brother-germane unto him Otherwise it is of Lands or other hereditaments entailed as shall be hereafter specified Also if a man be seized of Lands in fee-simple and hath Issue a Sonne and a Daughter by one Wife and after the death of his first Wife a Sonne by another Wife and dieth and the eldest Sonne entreth into the Lands and after he dieth without lawfull Issue of his body the Daughter shall have the Lands and not the youngest Sonne and yet the youngest Sonne is Heir to his Father but he is not so unto his Brother But in this case if the eldest Sonne hath not entred after the death of his Father but had died before any entrie made by him then shall not the Sister-germaine enter but the younger Brother is Heir to his Father because the eldest Brother was never in actuall possession which is requisite to the person that claimeth to be Heir collaterally But to the lineall Heirs it sufficeth that the Ancestour should have been Heir if he had lived I mean as thus a man seized of Lands and hath Issue a Sonne and a Daughter by one Wife and afterwards a Sonne by another he dieth and after his death the eldest Sonne entreth not but dieth without Issue before he can make actuall entrie here in this case his Sister shall not have the Lands as Heir to her Brother because her Brother was not in actuall possession but the younger Brother shall have them as Heir to his Father yet if the eldest Sonne in that case had left behind him Issue of his body whether it had been Sonne or Daughter this Issue notwithstanding that the Father of the Issue was never possessed either actually or in the Law shall have the Lands and shall convey his descent from his Father the cause hereof is this that the Sonne or Daughter is lineall Heir whereas the Brother Sister Unkle Aunt c. be Heirs collaterall and so ye shall observe a diversity Diversitie I call an actuall possession when a man entreth indeed into Lands which be to him descended but a possession in Law is called when Lands be descended to a person and he hath not yet really and
actually entred into them for notwithstanding that he is not in actuall possession yet he is possessed in the Law that is to say Haereditae quid sit in the eye and consideration of the Law he is deemed to be possessed for as much as he is Tenant for every mans Action that will sue for the said Lands or else assuredly there should ensue an intollerable inconvenience as we shall more copiously open in another place Ye shall furthermore understand that this word Inheritance is not only to be accommodate and applied to that which cometh by descent or succession from a mans ancestors or predecessors but also to every purchase in fee-simple or fee-tayle And note That a man can have no larger or greater estate then fee-simple CHAP. XIV Of Fee-Tayle YE shall understand that before a certain Statute called the Statute of West second West 2. Chap. 1. there was no estate tayle but all was fee-simple either purely that is to say without condition or at the least way conditionally Division as appeareth by the presence of the said Estatute but now sithence the promulgation of the Estatute divers forms of Estates Tayle have risen Fee-tayle is when it is prescribed and limited in the gift what sort of Heirs and by whom engendred shall inherit As for example I give Lands to a man and to his Heirs and go no further this is a fee-simple but if I make a limitation and adde of his body begotten now it is a fee-tayle that is to say a fee or Inheritance limited prescribed determinate or assigned So that if I give Lands to a man and to his Heirs he hath fee-simple but if I give Lands to him and to his Heirs of his body lawfully begotten he hath but a fee-tayle forasmuch as I appoint limit prescribe and express what Heirs they shall be and for lack of such Heirs the gift shall be expired and worn out and the Land shall be reverted again to the giver or his Heirs But ye must observe and Note That there be two kinds of fee-tayle there is a generall tayle and there is a speciall tayle Fee-taile generall is where Lands be given to a man and to his Heirs of his body begotten without any mentioning and expressing by what woman they are begotten And therefore if a man be Tenant in the generall tayle of Lands Generall taile and taketh a wife and hath Issue by her and she dieth and afterwards he taketh another wife of whom he hath also other Issue by her either of these Issues is inheritable to this Land entayled But if I express in the gift by what woman the Heirs shall be procreated and ingendered then it is an especiall tayle as for example to make the thing plain Especiall taile If Lands be given to a man and to his Heirs of his body lawfully begotten by Margaret his wife this is an especiall tayle for the Issue of him begotten by another woman shall never inherit by force and vertue of the tayle Likewise it is if Lands be given to a woman and to the Heirs of her body lawfully begotten and shew not by what man this is a generall tayle but if I go forward and say by such a man her husband then it is an especiall tayle Also if I give Lands to a man and to his wife and to the Heirs of their two bodies lawfully begotten this is an especiall tayle as well in the husband as in the wife Semblable it is if a man giveth Lands to another man with his Daughter or Kinswoman in frank marriage Frank-marriage this word frank marriage implieth an estate tayle speciall and in this case as well the man as the woman hath an an estate in the speciall tayle But if I give Lands to a man and to such a woman and to his Heirs that he hath begot of her here the woman hath an estate but for terme of her life and the Husband an estate in the especiall tayle and likewise it is in the womans behalf as if I give Land to a man and to his wife and to her Heirs of her body by her said Husband engendred he hath an estate but for terme of life and she an estate in the speciall tayle but in both cases if I had said to the Heirs and not to his or her Heirs then should either of them have had an estate in the speciall tayle because this word Heirs is as well referred to the one as to the other Ye shall also understand That if Lands be given to a man Descent by Heir males and to the Heirs males of his body this is an estate tayle and in this case the Heir female shall never inherit Also if a man hath Issue and dieth and Lands be given to him and to his Heirs of his body begotten this is a good estate tayle although the father were dead at the time of the gift Finally it is to be noted that of Lands which a man hath in fee-simple the possession of the Brother shall cause the Sister-germaine that is to say the Sister both by Fathers side and Mothers to inherit and in this case the Brother by the half-blood shall not inherit as heretofore was said but of Lands which be entailed Otherwise it is therefore if a man be seized of Lands in the generall tayle and hath issue by his first wife a Sonne and a Daughter and also a Sonne afterwards by another wife and dieth and the eldest Sonne entreth into the Lands and after dieth the Sister-germaine to the eldest Sonne shall not have the Land but the younger Brother of the half-blood because whosoever shall inherit Land or any other hereditaments in tayle must claim them as next and immediate Heir not to him that dieth last seized of the Lands but to him to whom the Lands were first given unto whom in the case before remembred is the Sonne and Heir and not the Daughter Thus ye shall mark a great diversity between the form of succession in the Lands of fee-simple Diversitie and the form in fee-tayle CHAP. XV. Tenant after possibility of Issue extinct WHen Lands Tenements or other Hereditaments be given to a man and to his wife and to the Heirs of their two bodies lawfully begotten if in this case either of them chance to die before they have Issue between them Dispunishable of waste he or she that overliveth is still Tenant in tayle but without possibility of any Issue that can be Heir to these Lands or hereditaments thus entayled and for this cause he or she thus over-living is called Tenant in Tayl after possibility of Issue extinct for in such a Tenant is all possibility of Issue that may be inheritable to these Lands by force of the gift in tayle utterly extinct or quenched and by his or her death the estate tayle shall expire cease and be abolished for ever and shall revert and turn again to the giver or donor from
Vouchee and the Demandant doth desire a Writ to cause the Jury to appear it shall be granted unto him West 2.13 Ed. 1.6 In a Writ of Mortdancester of Cosenage of Ayel nuper obiit of Intrusion and the like whereby Lands or Tenements are demanded Counterpleading of Voucher which ought to discend avert remaine or escheat by the death of any Ancestor or other wise if the Tenant Vouch to Warranty and the Demandant counterpleadeth him and will avert by Assize and by the Country or otherwise as the Court will award that the Tenantor his Ancestor whose Heir he is was the first that entred after the death of him whose seisen he demandeth the Averment of the Demandant shall be received if the Tenant will abide thereupon and if not be shall be further compelled to another answer And in a Writ of right Voucher in a Writ of right if the Tenant Vouch to Warranty and the Demandant will counterplead him and be ready to averre by the Country that he that is Vouched nor his Ancestors had never seisin of the Land or Tenement demanded Fee or service by the hands of the Tenant or his Ancestors since the time of him whose seisin the Demandant declareth untill the time that the Writ was purchased and the Plea moved whereby he might have Enfeoffed the Tenant or his Ancestors and then shall the Averrement of the Demandant be received if the Tenant will abide thereupon and if not the Tenant shall be further compelled to another answer West 1.3 E. 1.39 And whatsoever Tenant do Vouch and the Demandant will averre in form aforesaid his Averrement shall be admitted whether the party Vouched be absent or present without any respect had thereunto 20. E. 1. Stat. de vocatis ad Warantum In all Writs of Entre which make mention of degrees Voucher in Writs of Entre none shall Vouch out of the Line or in other Writs of Entre where no mention is made of degrees which Writs shall not be maintained but in cases where the other Writs of degree cannot lye nor hold place 3. E. 1.39 If percase the Tenant hath a deed that compriseth Warranty of another man which is bound in none of the cases aforesaid Warrantia chartae to Warrantie of an Elder degree his recovery shall be saved unto him by a Writ of Warrantia Chartae out of the Chancery when he will purchase it but the Plea shall not be delayed therefore West 1.3 E. 1.39 If the Tenant will Vouch to Warranty a dead man Voucher of a dead man and the Demandants will aver that the Vouchee is dead or that there is none such their Averment shall be received without more delay 14. E. 3.18 If one being impleaded in the City of London do Vouch a forrein to Warranty One impleaded in London doth Vouch a forrein the Maior and the Bayliffs shall adjourn the parties before the Justices of the Bench at a certain day and shall send their Record thither and the Justices shall cause the Warranter to be summoned before them and shall try the Warranty And the Maior and the Bayliffs shall surcease in the mean time in the matter that dependeth before them by Writ untill such time as the Warranty be determined before the Justices of the Bench And when the matter shall be determined Commandment shall be given to the Vouchee to depart into the City and to answer unto the first Plea and the Demandant at his Suit shall have a Writ from the Justices of the Bench unto the Major and Bayliffs that they shall proceed in the Plea And if the Demandant recover the Tenant shall come to the Justices of the Bench and have a Writ to the Major and Bayliffs that in case the Tenant have lost his Land they shall cause it to be extended and and return the same extent unto the Bench at a certain day and after it shall be commanded to the Sheriff of the Shire where the Warranty was Summoned that he shall cause the Tenant to have of the Lands of the Warrantor to the like value and if it fortune that the Tenant make default at the day that is assigned him in the Bench then shall there go forth a Writ from the Justices of the Bench to the Major and Bayliffs to seize the Land demanded into the Kings hands by Petite Cape and to Summon the Tenant that he be at the Hustings at a certain day whereat the Justices shall be advised to give judgement upon the same default if he cannot save it And if he can save it then the Justices shall be Certyfied thereof by their Record and by the same record they shall plead the Warranty Cloucest 6. E. 1.12 An. 9. E. 1. Articul Stat. Gloucest None being Vouched to Warranty before the K. Just in Plea of Land or Tenement shall be amerced Day given to him that is Vouched because he was not present when he was Vouched to Warranty except the first day of the coming of the same Justices But if he that is Vouched to Warranty be within the County the Sheriff shall be commanded that he shall cause him to appear with the 3d. or 4th day according to the distance of the places as the Justices in Eire have used to do And if he do remain out of the County then he shall have reasonable Summons of 15. dayes at the least according to the Justices discretion and the Common Law Marlb 52. H. 3.26 CHAP. LVI Of Warranty WArranty is in three manners that is to say Warranty is of three sorts Warranty Lineall and Warranty Collaterall and which beginneth by Disseisin Warranty Lineall is where a man seized in Fee Lineall Warranty or in tayl maketh a Feoffment by his deed to another and bindeth him and his Heirs to Warranty and hath Issue a Son and dyeth and the Warranty descendeth to his Sonne that is Lineall Warranty for that if no deed with Warranty had been made then the right of the Lands should have descended to the Son as Heir to his Father and he shall convey the dissent from the Father to the Sonne But if the Tenant in the tayle discontinue the tayle Collateral Warranty and hath issue and dyeth and the Unckle of the issue releaseth to the discontinued with Warranty c. and dyeth without issue this is a Collaterall Warranty to the Issue in the tayle for that the Warranty descendeth upon the Issue the which may not convey him to the tayle by mean of his Unckle And in every case where a man demandeth Lands in Fee-tayle by Writ of Formedon if any Ancenster of the Issue in the tayl which hath possession or which hath not possession maketh a Warranty and he that sueth a Writ of Formedon by possibility by matter that may be done might convey to him Title by force of the gift by him that made the Warranty c. That is then a Lineall Warranty and by such a Lineall Warranty
suffereth the husband of such a wife to receive and keep still all his wives Land that she had either in fee-simple or fee-taile so long as he liveth and this is by the curtesie and urbanity of England for this thing is used in none other Country nor Region But in this it is required that the Child be vitall that is to say be born and brought forth into this world alive and therefore the common saying is and hath been that unless the Child be heard cry the Father shall not be Tenant by the courtesie for the only proof and argument of life in an Infant born is the vagite and crying Ye shall furthermore understand that unless the husband be in actuall and reall possession of his wives Lands and seized of them in her right he shall not be Tenant by the courtesie after her death And therefore if Lands descend to a mans Wife so that she is Tenant in the Law and to every mans Actions yet if the Husband have not made an actuall entrie during coverture and matrimony between them he shall not be Tenant by the courtesie for it shall be reputed and judged his folly and negligence that he would not enter in her life time Otherwise it is of Advowsons Rents Commons and such other things which forthwith when they descend be in man or in a woman without any entrie or further ceremonie in Law Note That if a Tenant by the courtesie of England will suffer or make any waste in the Lands or Tenements that he so holdeth he is punishable therefore by Action of Waste brought by him in the reversion Also it is to be known That of things that be in suspense a man shall not be Tenant by the courtesie and therefore if a man be Tenant in fee-simple of certain Land and doth intermarry with a woman that is the Seignioress or Lady of the same and hath issue by her and she dieth yet shall he not be Tenant by the curtesie of the Lordship or Seigniory because himself is Tenant of the Land and therefore the Lordship is suspended for the time for a man cannot be both Lord and Tenant of one thing but if he had not been Tenant of Land he should have had the Lordship after the death of his wife by the curtesie of England very well Also note That of a right only a man shall not be Tenant by the curtesie as if a woman sole seized in fee of Lands or Tenements be disseized and after take a husband and they have issue and she die before any reentrie be made the husband shall not be Tenant by the curtesie Note further That of a reversion a man shall not be Tenant by the curtesie as if a woman sole seized of Land in fee make a Lease to S. for terme of life after taketh a husband and they have issue and she die living the Lessee for terme of life the husband shall not be Tenant by the curtesie CHAP. XI Of Tenant in Dower TEnant in Dower is she that hath been married to a husband that was during the matrimony between them seized of Lands or Tenements in fee-simple or fee-taile which is now dead and she seized of the third part of her husbands said Lands for terme of her life for by the Common Law of the Land Dower at the Common Law if the husband be at any time during the coverture seized lawfully whether it be by purchase or by discent either in fee or in fee-taile and die his wife shall be endowed by the course of the Common Law of the third foot Dower by custome and in some places by an ancient custome she shall be endowed of the Moitie yea and though the husband were never seized actually during the coverture yet if the Lands be cast upon him by the Law so that the Law calleth him Tenant to every mans Action it sufficeth the woman to demand her dower for it were unreasonable that the negligence and slackness of entring of the husband should hurt the wives Title Otherwise it is as it is said before of Tenant by the courtesie Tenant by the Courtesie for if Lands descend to a woman covert and the husband for slothfullness or negligence doth not enter in his wives life he shall not be Tenant by the courtesie for by all Laws the wife oweth obedience and subjection to her husband and therefore she cannot compel him to enter but when Lands discend to the wife the husband only hath power to enter at his pleasure And ye shall understand that unless the wife be above the age of Nine years at the time of her husbands death she shall not be endowed by the Common Law But it is to be known A Woman shall have no Dower that a woman may by divers wayes estoppe and prejudice her self of her dower as if she commit any crime for which she is attainted of Treason Murder or felony she shall have in this case no dower notwithstanding she hath obtained her pardon Allo if after the death of her husband she taketh a Lease for terme of life of the same Lands whereof she is indowable she loseth her dower of the same Moreover if she depart from her husband and lieth in adulterie with another man and is not reconciled again to her husband without cohersion of the Ecclesiasticall power she loseth her dower after her husbands death she shall be also barred of her dower if she will withhold from the heir the Charters and Evidence concerning that Land whereof she asketh dower but none other save the Heir can withhold dower for this cause No Dower It ought not to be unknown also of what things she may demand dower and of what things not of Lands Messuages Advowsons Rent-charge Rent-services or Seigniories in gross or otherwise of Villains of Commons certain of Estovers certain of Milles and Offices or of the profit of them she is dowable but of Commons and Estovers saus number also of Annuities of Homages of things of Pleasure as of Service of paiment of Roses and semblable she shall not be endowed Note There be yet two other kinds of Dower Dowment ex assensu Patris the one is called Dowment ex assensu patris that is to say by the assent of the father and the other is called Dowment de la plus beale part that is to say of the fairest part Dowment ex assensu patris is when the Father is seized of Lands in fee simple and his Sonne which is Heir apparant indoweth his Wife at the Church door when he is espoused of parcel of his Fathers Lands with the assent of his Father in writing testifying the same assent if in this case her Husband die she may forthwith enter into the Land so assigned unto her without further procurement of process of Law although the Father of her said Husband be yet alive and in actuall possession of the Land but if she thus do and
whence it came Yet forasmuch as the Tenant after possibility of Issue had once an Inheritance in him he shall not be punished by an Action of Waste though he make never so much waste in the Lands and Tenements whereas yet in effect he is but a Tenant for terme of life But if this Tenant doth alien in fee such Lands he in the reversion may enter for the forfeiture And this for Estates at this present time shall suffice Forfeiture but to the intent that ye may the more easily comprehend all the members of the division of Possessions and Estates which men have in Lands Tenements and other Hereditaments it shall not be evill done to set forth as it were in a Table before your eyes the division thereof which is this A Figure of the Division of Possessions Possession de Frank-tenement Selon comonley Estate Dinheritance Fee simple Fee-tayl generall speciall Frank-tenement Apres possibilitie dissue extinct Curtesie Dangl ' Dower Terme de vie Terme daut vie Selon custome que poet este divide en mesme le maner come franktenement al common ley Chattell Reall Terme daus Gard de terre Tener a volunt Personal Biens moveables CHAP. XVI Of Parceners or other Coheirs HItherunto I have made a compendious and short declaration of Estates of all sorts but where I said that among Sisters there is no prerogative or preheminence concerning the inheriting of their Ancestors Lands but that they shall be all together inheritours and make as it were but one Heir it is expedient to make a further declaration and process in this behalf and to shew how and in what manner this partition shall be made But ye shall understand Division of Parceners at the Common Law and Parceners by Custome That there be besides Parceners at the Common Law which be only Sisters also Parceners by Custome which is amongst Brothers contrary to the course of the Common Law and this custome is in some places of Rent and in other places where Lands and Tenements be of the tenure of Gavelkind Ye shall therefore kow That when a man is seized of Land in fee-simple or fee tayle and hath no issue but Daughters and die and the Daughters do enter into the Lands thus descended unto them now they be called Parceners or Co-heirs Writ de partione facienda and by a Writ called de partitione facienda brought by one of them against the others they shall be constrained by the Law to suffer an equall partition to be made of the Lands between them Now partition may be made in sundry wayes one way is when they themselves do make partition between them of the whole heritage and do agree unto the same and do enter every one into her part so allotted unto her Another way is Partition in divers manners when by all their agreements and consent one common friend doth make the partition in which case the eldest Sister shall have the first election and after her the second Sister and so forth but if they agree that the eldest Sister shall make the partition and she maketh it then the eldest shall not choose first but shall suffer all her Sisters to choose before her as it is thought There is also another form of partition which is equally to divide the Lands into so many parts as there are Co-heirs or Parceners and to write every part so divided in a severall scroule of paper and so put the said scroules in a bonet or to inclose them severally in balls of wax and then the eldest Sister to choose which ball she will or to put her hand into the bonet and take a scroule and to hould her to her chance and allotment and so consequently every Sister after other And ye shall note Nota. That Partition by agreement may as well be made by nude and bare words without writing as by writing And if any of the Parceners will not suffer any partition to be made then may the other that would have partition A writ de partritone facienda purchase a Writ called De partitione facienda against them that refuse partition to compell the same to suffer partition to be made accordingly and then by the judgment of the Court the Sheriff by the serement and Oath of twelve men shall make partition between them and shall assign to each Sister her portion as he shall think good without giving any election of choice to the eldest And if two Mannors or Meases happen to descend to two Sisters and the Mannors be not of equall value then may she to whom the less Mannor or Mease is allotted have assigned unto her a Rent proportionably out of the other Mannor for the which Rent she and her Heirs may distrain of common right though they have no writing thereof Finally ye shall understand Distress of Common Right That if a man be seized of Lands in fee-simple and hath Issue two Daughters and giveth with one of his Daughters to another man that shall marry her the third or fourth part of his Land in frank-marriage and dieth if in this case the Daughter that is in this wise bestowed and advanced will have her portion of her fathers heritage she must put her Land given unto her in frank-marriage in hochpot new again Hochpot I mean she must be contented to suffer her said Lands to be commixed and mingled with the other Lands of which her Father died seized in fee-simple so that an equall division may be made of the whole or or else she shall have no part of those Lands of which her Father died seized but if her Father had made unto her a common gift in tayl or feofment in fee she should not need to put her Lands in hochpot but may very well keep and retain them still and also have as good part of the rest of the Lands of which her Father died seized as her other sister or Sisters have Frank-marriage for a gift in frank-marriage is accounted the most free and most liberall gift that can be and that gift which the Law judgeth to be only for the advancement and bestowing of the Daughter whereas feofments in fee-simple and also common gifts in tayle be accustomarily for other causes and for the advantage rather of the giver or feoffer then of the taker And if Parceners make partition of Lands being within age that partition is void And if Parceners in fee-simple make partition and the part of the one is better then the other being of full age of 21. years then the partition is good and cannot be defeated but if it be of Lands in fee-tayle the one part being better then the other that partition may be defeated by their Heirs CHAP. XVII Of Joyntenants HItherunto briefly have we spoken of Coheirs called Parceners of the the Common Law which as is heretofore declared do come to Lands and other hereditaments joyntly by the course operation and act of
the Issue in the tayl shall not be barred except that he have assets to him discended But if be may not by no possibility that may be convey to him Title by force of the gift by him that made the Warranty then that is a Collaterall Warranty and by such a Collaterall Warranty the Issue in the tayl shall be barred without any assets And the cause that such a Collaterall Warranty is a barre to the Issue in the tayl is for that that all Warranties before the Statute of Glocester which descended to them which be Heirs to them which made the Warranties were barrs to the same Heirs to demand any Lands except the Warranties that began by disseisin and for that that the said Statute hath ordained that the Warranty of the Father shall be no barr to his Son for the Lands which come to the Heritage of the Mother nor the Warranty of the Mother shall be no barr to the Sonne for the Lands which come of the Heritage of the Father by the Statute 11. H. 7. Cap. 20. And none of the Statutes have made or ordained remedy against the Warranty that is Collaterall to the Issue in the tayle and therefore the Warranty that is Collaterall to the Issue in the tayle is yet in his force and shall be a barr to the Issue in the tayl as it was before the Statute And it behoveth that all Warranties whereby the Heir shall be barred that the Warranty descended by course of the Common Law to him which is Heir to him that made the Warranty or else it shall be no barre for if the Tenant in the tayl of Lands in Borough English where the youngest Sonne shall inherit by the Custome discontinueth the tayl and hath Issue and Sons and the Unckle releaseth to the discontinued with Warranty and dyeth and the younger Son bringeth a Formedon yet he shall not be barred by such Warranty Causâ quâ supra And if any man maketh a Deed with Warranty whereby his Heir should be barred and after he that made the Warranty be attaint of Felony then his Heir shall not be barred by such Warranty for that that such Warranty might not discend upon him for that that the blood is corrupt Warranty beginning by diseisin is Warranty by disseisin if the Sonne purchase Lands and after let the Lands to his Father for term of years and the Father by his Deed infeoffeth a stranger and bindeth him and his Heirs to Warranty and the Father dieth whereby the Warranty descendeth to this Sonne but the Sonne may well enter notwitstanding his Warranty for that that this Warranty begun by disesin when the Father made the Feoffment which was a diseisin to the Sonne And as it is said of the Father so it may be said of every other Ancester And the same Law is if the Ancester be Tenant by Eligit or by Statute Merchant and make a Feoffment with Warranty such Warranty shall be no Barres because they begin by diseisin In Deeds where it is contained Warranty by dedi Concessi Dedi concessi tale cenementum viz. I have given and granted such a Tenement without Homage or any clause that containeth Warranty and to hold of the Donors and their Heirs by a certain service the Donors and their heirs be bound to Warranty and where it is contained Dedi concessi c. to hold of the chief Lords of the Fee or of any other then of the Feoffors or their Heirs reserving no service to himself without Homage or without the aforesaid clause of Warranty his Heirs shall not be bound to Warranty but the Feoffor by reason of his gift shall be bound to Warranty during his own life The Husband doth alien his Wives Lands with Warranty Stat. de Bigamus 4 E. 1.6 If a man alieneth the Land he holdeth by the Courtesie of England his Sonne shall not be barred by the Deed of his Father from whom no Heritage to him descended to demand and recover by Writ Mortdauncester of the seisin of h s Mother although it be mentioned in the Deed that his Father did bind him and his Heirs to Warranty And if any Heritage descend to him of his Fathers side then he shall be barred for the value of the Heritage that is to him descended And if in such case Assets after the death of his Father any Inheritance descend to him by the same Father then shall the Tenant recover against him of the Seisin of his Mother by a Judiciall Writ that shall issue out of the Rolles of the Justices before whom the Plea was pleaded to resummon his Warranty as before hath been done in like Cases where the Heir of the Warrantor cometh into the Court saying nought descended from him upon whose Deed he is vouched And in like manner the Issue of the Sonne shall recover by Writ of Cosenage Ayel and Besaiel Likewise and in like manner the Heir of the Wife shall not be barred after the death of his Father and Mother to demand by acttion the Inheritance of his Mother by Writ of Entry which his Father did Alien in the time of his Mother whereof no Fine is leavied in the Kings Court. Gui in vita Glouc. 6 E. 1.3 FINIS
not Knights Service whereas the other is called Escuage uncertain Finally Escuage Uncertain ye shall understand that Escuage uncertain is alwaies adjudged to be Knights Service and draweth unto it Warde Marriage and Relief but Escuage certain is not Knights Service but is of the Tenure of Sucage as shall be hereafter more amply shewed CHAP. XXVI Of Warde Marriage and Relief EVery Knights-Service draweth unto it Warde Marriage and Relief wherefore it is now right expedient somewhat to entreat of them Ye shall therefore be admonished Warde that when the Tenant which holdeth his Lands by Knights-service dieth his Heir male being at that time within the age of twenty one years the Lord shall have the Warde that is to say the custody or keeping of the Lands so holden of him to his own use and profit till the Heir cometh to the full age of twenty one years For the Law here presumeth that till he cometh to his age he is not able to do such Service as is of his Tenure required Furthermore Marriage if such Heirs be unmarried at the time of the death of the Tenant then the Lord shall have also the Warde and the bestowing of the Marriage of him But if a Tenant by Knights-service dieth The full age of a woman his Heir Female being of the age of thirteen years or above then the Lord shall have the Warde neither of the Land nor yet of the Body of such an Heir and the reason hereof is because a woman of that age may have a Husband able to do Knights-service that is to say To wait upon the Kings Majesties Person when he goeth into Scotland with his Army Royal. But if such an Heir Female be within age of fourteen years and not married at the time of the death of her Ancester then the Lord shall have the Wards of the Land holden of him till such Heir Female cometh to the age of sixteen years by force of an Act of Parliament in the Statute of Westminster 1 Cap. 12. Note that there is a great diversity in the Law between the ages of Females Diversity of age and of Males for the Female hath these many ages appointed by the Law Age of a woman First At seven years of age the Lord her Father may distrein his Tenants for aid to marry her Secondly At nine years of age she is dowable Thirdly At twelve years she is able to assent to Matrimony Fourthly At fourteen years she is able to have her Land and shall be out of Warde if she be of this age at the death of her Ancester Fifthly At sixteen years she shall be out of Warde though at the death of her Ancester she was within the age of fourteen years Sixthly At twenty one years she is able to make alienations of her Lands or Tenements whereas the man hath but two ages the one at fourteen years to have his Lands holden in Socage The age of a man and to assent to Matrimony the other at twenty one to make Alienations Ye shall understand that by the Statute of Merton 6 Chap. it is enacted That if in case the Lord do marry their Ward to villains or others whereby is disparagement if such Heirs so married be within the age of fourteen years or such age that the said Warde cannot consent to the marriage then if the friends of this Heir complain and feel themselves grieved with this unmeet marriage the next of kinne to the Heir unto whom the Heritage cannot descend may enter into the Lands and put out the Lord which is Gardian in Chivalry And if the next Kins-man will not thus do another Kins man of the Infant may do it and shall take the Issues and Profits to the behoof and use of the Heir and yeeld account thereof unto him Account given when he cometh to his full age And there be divers other disparagements which be not expressed in the said Statute Divers Disparagements as if the Heir being within age of consent and in Ward be married to a decreped Person or Creeple as to one that hath but one foot or one hand or that is a deformed creature or having any horrible disease or continuall infirmity All these and such like be disparagements But here also ye shall understand that it shall be said no disparagement unless the Heir be so married when he is within age of discretion that is to say within the age of fourteen years For if he be of that age or above and assenteth to such marriage it is no disparagement neither shall the Lord for such marriage loose his Ward because it shall be reputed and assigned to the folly of the Heir being of age of discretion to consent to such marriage Now if the Lord then being a Gardian after to the Heir being his Ward a convenient marriage without disparagement and the Heir refuseth it Value of Marriage as he may at his choice and election very well do then the Lord shall have the value of the marriage of such an Heir when he cometh to his full age But yet if he marry himself being so in Ward against the will of his Gardein then he shall pay the double value Double value of Marriage by force of the said Statute of Merton before remembred And ye shall Note that if Lands holden by Knights-service One shall not be Ward living his Father descend to an Infant or Child within age from his Mother or from any of his Ancesters his Father being yet alive in this case the Lord shall not have the marriage of his Heir for during the life of his Father the Sonne shall be Ward to no man Finally it is to be known that he which is Gardian in Chivalry in right may before he hath seised the Ward grant the same either by Deed or without Deed to another man and then he to whom such a grant is made is called Gardein in Fait Now as touching Relief ye shall know that if a man holdeth his Land by Knights-service and dyeth his Heir being of full age the full age of the Male is twenty one years of the Female fourteen then the Lord of whom the Land his holden shall have of the Heir Relief Note ye that all Earls Barons or other the Kings Tenants holding of him in chief by Knights-service which die their Heir being of full age at the time of their deaths that is to say twenty one years of age they ought to pay the old Relief for their Inheritance that is the Heir or Heirs of an Earl for an whole Earldome 100l the Heir or Heirs of a Baron for an whole Barony an 100 Markes the Heir or Heirs of a Knight One 100 Shillings and he that hath less shall give less according to the old Custom of Fees Like Law is observed of all others that hold of any other Lords immediately Vt supra Also a man may hold Lands of a Lord
the Feoffer held so that no man can hold in Frank-almoigne but by force of a grant made before the said Statute only the Kings Majesty excepted for he is out of the compass of the Statute Finally ye shall note That whereas a man shall hold in Frank-almoigne his Lord is bound by the Law to acquit him of all manner of service that any other Lord can have or demand out of the said Lands so that if he doth not acquit him but suffer him to be distrained then he shall have against his Lord a certain Writ called a Writ of Mesne Writ of Mesne and shall recover against him his damages and costs of his Suit CHAP. XXXV Of Burgage A Tenure in Burgage is where an antient Borough is of which the King his Lord and they which have Tenements within the same Borough Socage Tenure held the same of the King paying a certain Yearly Rent which Tenure in effect is but Socage Tenure likewise it is whereas any other Lord Spirituall or Temporall is Lord of such borough Here ye shall note Custome that for the most part such antient Boroughs and Towns have divers Customes and Usages which other Towns have not for some Boroughs have a Custome that the youngest Son shall Inherit before the Eldest which custome is commonly called Borough English Dower by Custome Also in some Borough by the Custome the Woman shall have for her Dowrie all the Lands and Tenements whereof her Husband was seized at any time during the Matrimony and Coverture Moreover Devise by Custome of Borough in some Boroughs a man may bequeath or devise his Lands or Tenements by Testament at the time of his death and by force of such devise or Legacy he to whom the bepuest is made after the death of the Testator which made such Testament may by force of this Antient Custome enter into the Land so to him bequeathed or devised without any Livery of Seisin to him made or further Ceremony of Law Howbeit how and in what manner a man may at this day devise his Lands by his last will and Testament by force of a certain new Statute it shall be hereafter declared Divers other Customes in England there be contrary to the course of the Common Law which if they be any thing probable and may stand with reason are good and effectuall notwithstanding they be against the Common Law And note That no Custome is allowable but such Custome as hath been used by Title of prescription or time out of mind CHAP. XXXVI Of Villinage or bond Service A Tenant in Villinage is properly when a Villaine that is to say a bondman holdeth of his Lord whose Bondman he is certain Lands or Tenements according to the Custome of the Manour or otherwise at the will of his Lord and to do his Lord Villane service as for to bear and carry the dung of his Lords out of the City or out of his Lords Manour and to lay it upon the Demeane Lands of the Lord or to do such like Service and Villanies Service Howbeit Free-men in some places hold their Tenements and Lands of their Lords by Custome by such sort of Service and their Tenure is called Tenure in Villinage and yet they themselves be no Villaines nor of servile condition but Freemen for the Land holden in Villinage maketh not the Tenant a Villaine but contrariwise a Villaine may make Free Land to be Villaines Land unto his Lord as if a Villaine purchaseth Land in Fee-simple or Fee-tayl the Lord of the Villaine may enter into the Land so purchased by his Bondmen and put him and his Heirs out for ever and this done the Lord if he will may Lease the same Land to his Villaine to hold of him in Villenage And here ye shall understand That Servitude or Villenage is the ordinance not of the Law of nature but of that Law which is called jus gentium by which a man is made subject contrary to nature unto another mans Dominion for he that is a Villaine or Bondman either he is so by Title of prescription that is to say he and his Ancestors have been Villains time out of mind or else he is a Villaine by his own confession in some Court of record so that all Villaines either they be born Villaines or else they be made so they be born Villaines when their Father being a Bondman himself begetteth them in Lawfull Wedlock either of a Free Woman or of a Bond Woman for so that the Father be Bond the Issues of him Lawfully begotten must needs be Bond by the Laws of England having no regard to the Condition of the Mother whereas in the Civill Laws of the Romanes it is clean contrary for there Pars sequitur ventrem that is to say the Servitude or Bondage of the Mother maketh the child Bond and not the Bondage of the Father Bastard Howbeit the Bastard Son of a Bond man shall not be Bond and the reason is because a Bastard is nullius filius in the Law that is to say no mans sonne They be made Bondmen or Villaines two waies either by their own proper act as when a Free Person being of full age will come into a Court of Record and there confesseth himself Bond to another man Or else by the Laws of Arms called jus gentium as when a man is taken prisoner in wars and is compelled to serve and become the Thrall and Bond man of him that took him the Law calleth such a Person a Villaine that is to say a slave and Thrall And ye shall note Definition of Villaines That Villaines be properly called in Latin Servi because that when they be taken in warre the Captains be wont not to kill them but to sell them and so to save their lives So that they be called Servi a servendo that is to say of serving They be called Mancipia a manu capiendo because they be taken by hand and power of their enemies Now as I said by the Law of Nature we are all born free but after that by the Law of of Gentility servitude or bodage did press and invade the world then ensued the bene-of Manumission Manumission is Quasi de manu emissio that is to say Manumission a giving out of the hand or power For so long as a man is in bondage and servitude he is subject to the hand and power of another and when he is Manumissed he is made free and delivered from the said power So that a Manumission is to say a Writing testifying that the Lord hath infranchised his Villain and all his off-spring and Sequell Also if the Lord maketh to his bondman an Obligation of a certain summe of money What acts maketh Manumission in Law or granteth to him by his Deed an Annuity or yearly Pension or leaseth to him by Deed Lands or Tenements for terme of years any of these acts do imploy an Enfranchisement Likewise if