the Husband and his Heirs shall have the Rent of them in the remainder c. And in this case there needeth no atturnement by word because the Husband that ought to atturn accepteth the Grant of the Services the which acceptance is an atturnement in the Law CHAP. XXIV Of Service HItherunto have I briefly touched and overrun the sundry kinds and forms of Estates Now forasmuch as there is no Tenure but hath unto it some service knit and annexed it were very necessary to declare how many kinds of Services there be and what Service is due to every Tenure for the knowledg hereof ye shall understand that the principall and most common kind of service that the Tenant oweth to his Lord is called Knights-service CHAP. XXV Knights-service KNights-service includeth Homage Fealty and for the most part Escuage and whosoever holdeth his Lands by Knights-service is bound by the Laws of this Realm to do unto his Lord homage and fealty and to pay for the most part Escuage when it shall be assessed by authority of Parliament as hereafter more plainly shall be declared Homage is the most humble and reverent service that a man of free estate and condition can do for when the Tenant shall do homage to his Lord the Lord shall sit Homage and the Tenant then shall kneel down before him upon both knees holding his hands between his Lords hands and say in this wise I become your man from this day forward of life and of member and of earthly Honour How the Tenant shall do Homage and to you shall be faithfull and true and faith to you shall bear for the Lands that I claim to hold of you saving the faith that I bear unto our soveraign Lord the King And then the Lord so sitting shall kiss him But if an Ecclesiasticall person which by his order and profession hath addicted himself to the service of God in especiall What a religious Person say when she doth Homage and do homage to his Lord he shall say I do to you homage and shall be to you faithfull and true and faith to you shall bear for the Tenements that I hold of you saving the faith which I owe unto our soveraign Lord the King Also when a woman not married doth homage to her Lord What a woman shall say she shall not say I become your woman for it is not convenient that a woman should be the woman of any other then of her Husband that she shall marry but shall say even as the Ecclesiasticall person saith I do unto you homage c. And if perchance a man holdeth sundry Lands and Tenements of sundry Lords and every of them by Knights-service then in the end of his Homage making he shall say Saving the faith that I owe to our soveraign Lord the King and to mine other Lords And none is bound to do homage to the Lord unless it be such Tenant as hath in the Tenancy an estate of fee-simple or fee-tayle either in his own right or in the right of another for if a woman have Lands or Tenements in fee-simple or fee-tayle What Tenant shall do Homage which she holdeth of her Lord by Knights service and taketh an Husband and hath Issue in this case the Husband in the life of his Wife shall do homage because he hath Title to have the Lands by the Courtesie of England if he overliveth her and also he holdeth them now in his Wives right yet before Issue had between them the Homage shall be made in both their Names but if the woman dieth before any homage made in her life and the Husband keepeth still the Lands as Tenant by the Curtesie now he shall not do homage to his Lord because he hath now an estate but for terme of life Fealty is as much to say as Fidelity Fealty or faithfulness in doing whereof the Tenants shall hold his hand upon a Book and say thus How a Tenant shall do Fealty Hear you this my Lord I to you shall be faithfull and true and faith to you shall bear for the Lands and Tenements which I claim to hold of you and duly shall do to you the Customes and Services which I owe to do to you at the termes assigned as Me help God and then he shall kiss the Book but he shall not kneel as he that doth homage nor do such humble or reverent service as is before declared in Homage And ye shall observe that Homage cannot be done but to the Lord himself Diversity between Homage and Fealty whereas the Steward of the Lords Court or the Bayliff may take Fealty for the Lord. Also Tenant for term of life shall do Fealty but Homage as I said he cannot do Now as concerning Escuage that is to say The service of the Shield Ye shall understand that he that holdeth his Lands by Escuage when the King maketh a voyage Royal into Scotland for the subduing of the Scots is bound to be with the Kings Majesty by the space of twenty daies well and conveniently arrayed and appointed for the Warre And he that holdeth his Land but by the Moity of the Fee of Knights service is bound by the force of his Tenure to be with the King by space of twenty daies and so proportionably according to the rate and quantity of his Tenure But now to our institute and purpose after this Voyage Royal into Scotland in which the King goeth in Person and after his return into England again a Parliament is wont to be summoned in which shall be prescribed and assessed what every Person that held his Land by Homage and went not with the King neither by himself nor by his Deputy shall pay to his Lord in satisfaction of his not serving and according to the taxation hereof every Tenant shall pay to his immediate Lord whether it be to the King or other after the rate and portion of his Tenure If he holdeth by an whole Fee he shall pay the whole Escuage if by a Moity the half if by a fourth part of a Fee the fourth part c. And this Money thus assessed is called Scutage or Escuage for which the Lord to whom it is due may very well for the non-payment thereof distrein But here is to be noted that some Tenants by Custom used time out of mind Distress of Escuage are bound to pay but the Moity or the third part of that which shall be assessed and limited by Act of Parliament Yea Escuage Certain and the Custom is in some place that to what summe of Money soever Escuage is assessed the Tenants shall pay never but such a certain summe of Money and this kind of Escuage is called Escuage certain that is to say Where Escuage is assessed by the Parliament to a more or less summe the Tenant to pay to the Lord five Shillings and no more nor no less c. Such a Tenure is called Socage Tenure and
as is agreed between the Landlord and the Tenant and when the person to whom such Lease is made doth enter by force of the said Lease and is in possession of the same then he is called a Tenant for terme of years And here ye shall note that if the Lessour that made the Lease Rent reserved hath reserved unto him a yearly Rent upon the said Lease as it is accustomably used to be done if the Rent be behind and unpaid it shall be in his lection either to enter and distrain for the Rent Action of Debt or to bring an Action of Debt against the Tenant for the arrerages of the same A good Plea But in this case it is requisite that the Lessour were seized of the Lands or Tenements at the time of the making of the Lease for otherwise it shall be a good Plea in the Action of Debt for the Tenant to say the Lessour had nothing in the Lands and Tenements at the time of the Lease made except the Lease were made by Deed indented for then the Plea shall not be in the Tenants mouth to plead And it is to be known Livery of Seisin needeth not in a Lease for terme of years that in a Lease for terme of years whether it be by Deed or without Deed there need no livery of seasin to be made to the Lessee but he may enter when he will by virtue of his Lease without any further ceremony of the Law And if a man leaseth Lands for terme of years though the Lessour chanceth to die before the Lessee doth enter yet he may enter well enough otherwise it is where livery of seisin is to be made as in Free-holds and inheritances Also if the Tenant for years doth waste Waste the Landlord may bring an Action of Waste against him and shall recover the place wasted and his treble damages Also if a Lease for years be made of two severall things and after the one is recovered the Lessee shall hold the other and the rent or farme shall be apportioned M. 12. H 8. Also if the Tenant for years granteth a greater estate in the Land then he hath himself whereby he conveyeth the fee-simple to himself Forfeiture he shall forfeit his Lease or terme CHAP. VI. Tenant at Will TEnant at will is he to whom Lands or Tenements be leased to have and to hold the same at the will of the Lessour and in this case the Lessour may put out his Tenant at what time he listeth but yet nevertheless if the Tenant have sowed the grounds with Corn in this case if the Lessour will enter and put out his Tenant before harvest the Law will give him free coming and going to reap and carry his Corn away without any punishment or damages to be sustained for his so doing because he knew not at what time the Lessour would enter but otherwise it is of Tenant for certain terme of years for if he soweth the ground and his terme of his Lease be come out and expire before the Corn be ripe in this case the Lessour or he in the reversion may enter and take the Corn because it was the folly of the Tenant to sowe the ground knowing the end of his terme So likewise Tenant at will shall have free coming and going after the time of the Lessours entry to carry away his houshold stuff and goods for a reasonable space Ye shall also understand that he that maketh a Lease at will may reserve an annual or yearly rent Distress or action of Debt in which case if the rent be behind he may enter very well and distrain the Goods and Chattels of the Tenant or at his election he may bring an Action of Debt against him Also it is to be known that a Tenant at will of a House or Tenement is not bound by the order of the Law to sustain and repair the Houses that be decayed and ruinous as is the Tenant for years and therefore no Action of Waste lieth against him Waste yet if he will do wilfull waste as if he plucketh down the Houses or cutteth down the Trees it hath been thought by the Sages of the Law that the Lessour may bring an Action of Trespass against him and shall recover his losses thereby sustained And if such a Tenant die and his Heir enter in that case the Lessour may have an Action of Trespass against the Heir for his entrie Trespass CHAP. VII Tenant by Copy or Court-Roll THere is another kind of Tenant at Will which is called Tenant by Copie of the Court Rolles and this is when a man is seised of a Mannour within which it hath been used time out of minde that the Tenants within the bounds and precinct of the said Mannour have holden Lands and Tenements to them and to their Heirs in fee-simple see-taile or for terme of life at the will of the Lord according to the custome of the Mannor and such a Tenant cannot alien or sell his Land by his Deed for if he doe the Land or Tenement that is so alienated and sold is forfeit into the Lords hands but if he will alien his copyhold-Copyhold-Land to another he must according to the custome come into the Lords Court Surrender and there surrender it into the Lords hands to the behoof and use of him that shall have the Estate the form of which Surrender is commonly used to be thus Ad hanc curiam venit A. de B. sursum redidit in eadem curia unum mesvagium The form of a Surrender c. in manus Domini ad usum C. de D. heredum suorum vel heredum de corpore c. Et super hoc venit praedictus C. de D. eripiet de Domino in eadem curiâ mesvagium praedictum habendum tenendum sibi c. ad voluntatem Domini secundum consuetudinem Manerij faciend inde redditus servitia consuetudines inde juris debita censuetas c. dat Domino pro fine c. fecit Domino fidelitatem These as I said be called Tenants by Copy of Court Roll because they have none other Evidence to shew concerning their Lands save only the Copies of the Rolls of their Lords Court Neither can these Tenants sue or be sued for such Lands but in the Kings Court by Writ or otherwise but if they will in any wise implead or sue others for such Copie Lands they must do it by way of plaint in the Lords Court after this form A. de D. queritur versus C. de D. de placito terrae The form of the Plaint videlicet de uno mesvagio 46 acris terrae 4 acris prati c. cum pertinentiis facit protestationem sequi quaerelam istam in natura brevis Domini Regis assisae mortis antecessoris ad communem Legem pol ' c. Plegij de prosequendo F.O. c. Now although
on the feoffees behalf as when I infeoff you of Lands or Tenements upon Condition that you shall do such an act as to pay unto me or mine Heirs such an annuall Rent on the feoffors behalf as when I make a feoffment unto you upon Condition that if I pay or cause to be paid unto you before such a day such a summe of money then it shall be lawfull for me to enter again and retain my Lands in my former estate Tenants in Mortgage in this case he that is the feoffee is called Tenant in Mortgage which is as much to say as dead-gage and it seemeth that the cause why it is so called is forasmuch as it is doubtfull whether the feoffor will pay at the day limited and prescribed such a summe of money for the redemption of his Lands or not for if he do not his Title or interest in the Lands thus gaged and oppignorate is utterly extinct and gone without all hope of renewing Ye shall also note That if the mortgager dieth before the day of payment his Heir may redeem the Land very well even as well as his Ancestour that mortgaged the Land might have done although there be no mention made of Heirs in the writing Also if when the money is lawfully by the mortgager or his Heir tendered and profered and the Lessour refuseth to receive the same the feoffour or his Heir may enter and then hath the feoffee no remedy for his money at the Common Law Ye shall understand also that some conditions be utterly void in the Law and of none efficacy Conditions void vertue or strength As if a feoffment be made of Lands in fee-simple upon condition that the feoffee shall not alien or put away the same to none other this condition I say is void because the feoffee is restrained of his whole power that the Law giveth in such case unto him and with power and liberty is manner included in every feoffment yet I may abridg him of part of his power as to condition with him that he shall not alien the Lands to such a person or such but of Gifts in Tayl otherwise it is for if I give Lands to a man and to the Heirs of his body lawfully begotten Gift in Tayl upon Condition upon condition that he nor his Heirs shall alien the Lands to none other person this Condition is good and effectuall in the Law and if he or his Heirs contrary to the Condition do alien them then the giver or his Heirs may very well enter and retain the Lands for ever because this Condition shall stand with the forenamed Statute of Westminster the second which prohibiteth such alienations to be made Hitherunto have I spoken of Conditions in Deed now will I shew what be Conditions in Law that be annexed to any Estates Know ye therefore Estates upon conditions in Law that if the Office of a Parker Steward Constable Bedle or Baliff or such like Office be granted to a man for term of his life though there be no condition at all mentioned in the grant yet the Law speaketh of a condition in this case which is that if the party to whom such Office is given shall not execute all points appertaining unto his Office accordingly by himself or his Lawfull Deputy it shall be Lawfull for the grantor to Enter and discharge him of his Office and this condition is called a condition in Law There be also three other manner of Estates upon Condition that is to say Conditions against the Law Conditions Depugnant and Conditions Impossible First Estates upon Conditions against the Law be as if a man make a Feoffment gift grant or Lease upon Condition that if the Feoffors Donours Grantours or Lessours kill J. S. which is not the Kings enemy or burn his house that then it shall be Lawfull to the Feoffors Donours c. To re-enter this Condition is void and the Estate good And like Law is Conditions against the Land if such Conditions be to be performed of the part of the Feoffee Grantee c. But if it be that a Lease for term of years be made of Land upon Condition that if the Lessees kill J. S. that then he shall have fee simple although that he in his case perform the Condition his Estate is nothing thereby inlarged because the Condition is against the Law And ye shall understand that where an Obligation is Indorsed with a Condition which is against the Law both the Obligation Conditions Repugnant and also the Condition be clearly void in the Law Estates upon Conditions Repugnant be as if a Feoffment or a gift in tayle be made upon Condition that the Feoffee or Donee shall take no profit or shall do no wast and such other like such Conditions be void and the State good and effectuall in the Law notwithstanding Also if a Lease be made for term of life upon Condition that he shall not doe Fealty that is as a void Condition Likewise it is if a man that hath nothing in the Manour of Sale granteth a Rent-charge going out of the same upon Condition that the person shall not be charged this grant is good and the Condition is void Estates upon Conditions impossible be as if a Feoffment be made upon Condition that if the Feoffee goeth not through the Sea on foot to Calice in one day Conditions Imposble then it shall be Lawfull to the Feoffor to re-enter this is a frustrate and void Condition and yet the estate is good Like Law is of a Lease made for term of years c. or an Obligation with a Condition impossible ut supra the Obligation or Lease is good and the Condition void to all purposses CHAP. XXII An Act how strangers shall take advantage of Conditions made An. 32. H. 8. IT is enacted that as well persons which have or shall have any gift or grant of the King by his Letters Patents of any Lands Personages Titles or other Hereditaments or any reversion of the same which did belong to any Monastry or other Ecclesiasticall House disolved or otherwise come into the Kings hands since the fourth day of February in the twenty eight Year of our Sovereign Lord King Henry the Eight or which at any time heretofore did belong to any other Person and after come into the Kings hands as also all other Persons being Graunters or Assigns to the King or to any other Person their Heirs Executors Successors and Assigns shall have like advantage against the Farmours and their Executor Administrators and Assigns by Entry for Non-Payment of the Rent or for doing wast or other forfeiture and also shall have the same advantage by Action only of not performing of other Conditions Covenants or Agreements contained in the Indentures of their Leases or Grants against the said Farmours and Grantees their Executors Administrators and Assigns as the said Lessors or Granters themselves might have had at any time
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
by two Knights Fees and then the Heir being of full age at the death of his Ancester shall pay to his Lord for Relief ten Pounds CHAP. XXVII Service of Castle-Guard YE shall understand that a man may hold by Knights-service and yet not hold by Escuage nor shall pay any Escuage for he may hold by Castle-Guard that is to say by service to keep a Tower of his Lords Castle or some other place upon a reasonable warning when his Lord heareth that enemies will come or be already come into England This service is also Knights-service Ground in the Law and draweth to it Ward Marriage and Relief as in all Cases the common Knights-service doth CHAP. XXVIII Of Grand-Serjeanty THere is also another kind of Knights-service which is called Grand-Serjeanty that is where a man holdeth his Lands or Tenements of the King by such service as he oweth in proper person to do as to bear the Banner of our Sovereign Lord the King or his Spear or to conduct his Host or to be his Marshall or to be the lower Carver or Butler at the Feast of the Coronation or to be one of the Chamberlains of the receipt of his Exchequer or to do like service to the King in proper person Such manner of service I say is called Grand-Serjeanty that is to say A great or high Service And the cause why it is so called is because it is the most honourable and most worthy Service that is The most high Service For he that holdeth by Escuage is not appointed by his Tenure to do any other more special Service then another is bound that holdeth by Escuage but he that holdeth by Grand-Serjeanty is bound to do some speciall service to the King Also if he that holdeth of the King by Grand-Serjeanty dieth Relief of the Tenant by Grand-Serjeanty his Heir being of full age then the Heir shall pay to the King for Relief not only a 100s as he that holdeth by Escuage shall do but moreover the clear yearly value of these Lands and Tenements which he so holdeth of the King by Grand-Serjeanty Tenure by Cornage Furthermore ye shall observe that in the Marches of Scotland some men hold of the King by Cornage that is to say blowing of a Horn to the intent to warn the men of the Countrey when they hear that the Scots or other their Enemies be coming or be already entred into England which service is also a kind of Grand-serjeanty Grand-Serjeanty therefore is as much to say in Latin as Magnum-servitium Definition of Serjeanty that is to say A great or high Service Like a Petty-Serjeanty is called Parvum servitium that is to say A little or small service But to revert again to the matter Ye shall Note that if any Tenant holdeth of any other Lord then of the King by such service of Cornage then it is no Grand-Serjeanty but yet nevertheless it is Knights service and draweth to it Ward Marriage and Relief For this is a Rule infallible That none can hold by Grand-Serjeanty but of the Kings Majesty only Rule in the Law Finally Ye shall understand that all they which hold of the King by this Service called Grand-Serjeanty do hold of the King by Knights-service and by virtue of his Tenure the King shall have of them Ward Marriage and Relief but Escuage yet he shall not have of them unless they hold by Escuage of him by express speciall words CHAP. XXIX Petty-Serjeanty TEnant by Petty-Serjeanty is he that holdeth his Land immediately of our Sovereign Lord the King by this manner of service to pay to the King yearly either a Bow a Spear a Dagger a pair of Gauntlets a pair of Spurres of Gold a Shaft or such other small things appertaining to the Warre And this service is in effect but Socage because that such a Tenant is not bound by his Tenure to go nor do any thing in his own proper person touching the Warre but only to render and pay yearly certain things to the King as a man ought to pay a Rent Wherefore this Service of Petty-Serjeanty is no Knights-service but yet ye shall note That a man cannot hold neither by Petty-Serjeanty neither by Grand-Serjeanty but of the King only CHAP. XXX Homage Ancestrell TEnant by Homage Ancestrell is he which holdeth his Land of his Lord by Homage and both he and his Ancesters whose Heir he is have holden the same Land of the said Lord and of his Ancesters time out of mind by Homage and have done unto them Homage And this is called Homage Ancestrell by reason of the long continuance which hath been by title of prescription Warranty because of Homage Ancestrel as well concerning the Tenancy in the blood of the Tenant as concerning the Lordship in the Lord. And this service of Homage Ancestrell draweth unto it Warranty that is to say if the Lord which is now in life hath once received the Homage of his Tenant he ought to warrant the same Tenant what time soever he shall be impleaded or sued for such Lands so holden of him by Homage Ancestrell Moreover such service of Homage ancestrell draweth unto it acquitall that is to say the Lord ought to acquit the Tenant against other Lords that can demand any manner of Service of the Tenancie Wherefore if in this case the Tenant which holdeth by Homage ancestrell be impleaded of his Lands and voucheth or calleth his Lord to Warrantie who cometh in by Process and demandeth of the Tenant what he hath to binde him to the Warrantie and the Tenant sheweth how he and his ancestors whose Heir he is have holden his Lands of him and of his ancestors time out of minde surely the Lord if he cannot deny this and if he hath received the Homage of such a Tenant is bound by the Law to warrant him his Land so that if the Tenant lose his Lands in default of the Lord thus vouched that is to say called to warrantie he shall recover against him as much in value of these Lands and Tenements which the Lord had at the time of calling to warranty or at any time after but if the Lord never received the Homage of his Tenant then he may very well when he is thus vouched disclaim in the Lordship or Seignory and so put out the Tenant of his warranty Wherefore ye shall note that in every case where the Lord disclaimeth in his Seigniory in Court of Record his Seigniory or Lordship is extinct and the Tenant shall hold from henceforth of the next Lord to him that thus disclaimeth Thus ye perceive that Homage ancestrell is a long continuance as well in the blood of the Tenant in respect of his Tenancy as in the blood of the Lord in respect of his Seigniory wherefore if the Tenant doth once alien his Lands to another although he purchase the same again yet he shall not hold any longer by Homage ancestrell because of his
the Lord maketh a Feoffment to his Villain and maketh unto him Livery of seisin this also is an Enfranchisement and secret Manumission Briefly to speak wheresoever the Lord compelleth his Villain by the course of the Law Causes of Infranchisem to do that thing that he might otherwise enforce him to do or to suffer without the authority and compulsion of the Law he doth by implication Enfranchise his Villain as if the Lord will bring against his Villain an action of debt an action of account of Covenant or of trespass These and such like be in the eye of the Law Enfranchisments and Manumissions because that the Lord in all these cases may have the effect and purpose of his sute that is to say the Goods Chattels and correction of his bondman without the compulsion of that Law even by his own proper power and authority which he hath upon his Villain But if the Lord doth sue his Villain by an appea of Felony the Villain being lawfully indicted of the same before this is no tacite Manumission or Enfranchisement For the Lord though he have power to beat his Villain and to spoyl him of his goods yet he cannot by the Law of this Realm put him to death Ye shall also understand that if a mans bondman purchase Lands or acquit and get unto him any other thing the Lord may forthwith enter and seize the same into his own hands Wherefore if the Lord will bring against his Villain a Praecipe quod reddat by which he demandeth against his Villain any Lands or Tenements this implieth an Enfranchisement for as much as he bindeth himself to the Prescript and Authority of the Law whereas he might use his own Authority by entring and seizing the said Lands Finally Ye shall mark that some Villains be called Villains in gross and other some be called Villains regardant In gross be they of which the Lord is severally seized and not by reason of any Lordship or Mannour but they be called regardant which do belong to a Mannour of which the Lord is seized And the said Villaines have been regardant that is to say exspectant and attendant time out of mind to the Lord of the said Mannour in doing unto him such services as to a Villain appertaineth CHAP. XXXVII Of antient Demesne THere is also a certain kind of Tenure which is called antient Demesne and these Tenants which hold by their service be Fee-holders and by Charter and not by Copy or Court-Roll or by the Verge after the Custom of the Mannour at the will of the Lord And these Tenants be such as hold of those Mannours which were S. Edwards the King or which were in the hands of King William the Conqueror and these Mannours be called the antient Demesnes of the King or the antient Demesnes of the Crown of England And to such Tenants which hold of such Mannours be many and divers Liberties given and granted by the Law as to be quit of tolé and passage and such like Impositions which be demanded of men for their Goods and Chattels sould or bought in Faires and Markets by them also to be quit and free of Tax and Tollage granted by Parliament except that the Kings Majesty do Tax antient Demesne as to him only appertaineth when he thinketh good for great and urgent Considerations Tenants also of antient Demesne ought to be quit of payments to the Expences and Charges of the Knights which came to the Parliament Also they ought not to be impannelled nor put in Juries and Enquests in the County out of their Mannours or Seigniory of antient Demesne for the Lands which they hold of such Mannour unless they have other Lands at the Common Law for which they ought to be charged And if such Tenants or any of them which hold of the Mannour of antient Demesne bedistreined to do unto their Lord other Services or Customes then they or their Ancesters have used to do Writ of Monstraverunt then may they sue a certain Writ called a Monstraverunt directed to the Lord commanding him that he distrein them not for to do other service or Customes then they have been accustomed to do And for further knowledg hereof you shall understand that in the Exchequer there is a Book called Dooms-day which Book was made in the time of the said S. Edward and all the Lands that were in the Seisin and in the hands of the said S. Edward at the time of the making of the said Book by antient Demeane But the Lands which then were in other mens hands Frank-fee though they be written in the said Book be frank Fee and no antient Demesne Finally It is to be noted that Tenants of antient Demesne shall not be impleaded for their said Lands out of the Mannour whereof they so hold and if they be Abatement of Writ they may shew the matter and abate the Writ But if they once Answer to the Writ and Judgment given then the Lands have lost the nature and benefit of antient Demesne and are become frank Fee that is to say Pleadable at the Common Law for evermore And thus have we spoken of the Diversity of Tenures CHAP. XXXVIII Of Rents FOr as much as upon every Tenure there is commonly reserved one Rent or other therefore I think it good somewhat to treat of Rents but ye must understand that there be sundry sorts of Rents There is one kind of Rent which is called Rent-service Division of Rent-service another which is called Charge and the third which is named in French Rent Secke that is to say in Latine Redditus siccus a drie Rent Now Rent-service is so called because it is knit to the Tenure and is as it were a service whereby a man holdeth his Lands or Tenements or at the least way when the Rents be unseverably coupled and knit with the service As for an example where the Tenant holdeth his Land of the King or of any other Lord by Fealty and by certain Rent or by any other sorts of services and by certain Rent this Rent is called Rent-service Distress of common right And here ye shall note That if this Rent-service be at any time when it ought to be paid behind and unpaid the Lord of whom the Land or Tenement is so holden whether it be in fee-simple fee-tayl for term of life for years or at will may of common right enter and distrein for the Rent though there be no mention at all nor cause of distress put in the Deed or Lease I said before that the Nature of this Rent-service is to be coupled and knit to the Tenure For where no Tenure is there can be no Rent-service And therefore if at this day I be seized of Lands of Fee-simple and make a Deed of Feoffment of the same to another in Fee-simple reserving by the same Deed a Rent this can be called no Rent-service because there can be now no Tenure between
taken had and sued out of the Kings hands by the person or persons to whom they shall be so disposed willed or devised in like manner as hath been used by any Heir or Heirs before the making of this Statute Every person having Mannours Lands c. of Estate in Inheritance holden of the King in chief by Knights-service or of the nature of Knights-service in chief hath power by his last Will in writing or by any other Act executed in his life to give dispose will or assign two parts thereof in three parts to be divided or else so much thereof as shall amount to the yearly value of two parts thereof in three parts to be divided in certainty and by speciall divisions that it may be known in severalty for the advancement of his Wife preferment of his Children and payment of his debts or otherwise at his pleasure Here also the custody Wardship and Primer Seisin or any of them as the case shall require of as much of such Mannours Lands c. as shall amount to the clear yearly value of the third part thereof as also all fines for Alienations upon such alteration of the Free-hold or Inheritance are saved to the King Every person having Mannours Lands c. of Estate of Inheritance holden of the King in chief by Knight-service and having other Mannours Lands c. holden of the King or any other by Knight-service or otherwise hath power to give dispose or will or assign by Will in writing or otherwise by Act executed in his life two parts thereof in three parts to be divided or so much thereof as shall amount to the yearly value of two parts thereof to be severed as aforesaid for the advancement of his Wife preferment of his Children and payment of his Debts or otherwise at his pleasure Here likewise the Custody Wardship Primer Seisin and Fines for Alienation are saved to the King as before Every person having Mannours Lands c. of estate of Inheritance holden of any other Lord by Knight-service and other Lands in Socage or of the nature of Socage may give dispose assure by will or otherwise by Act executed in his life two parts of the Knight-service Land or so much thereof as shall amount to the yearly value of two parts as aforesaid and also all the Socage Land at his pleasure saving to such Lord for his Custody and Wardship so much of the Knight-service Land as shall amount to the yearlyly value of the third part thereof Every person having Mannours Lands c. holden of the King by Knight-service and not in chief or any Mannours Lands c. holden of the King by Knight-service and not in chief and other Mannours Lands c. holden of any other person by Knight-service and also other Mannours Lands c. holden of any other person in Soccage or in the nature of Soccage may give dispose will devise and assure by his last Will or otherwise by Act executed in his life two parts of the said Knight-service Land or so much thereof as shall amount to two parts of the yearly value thereof as aforesaid all the Soccage Land at his will and pleasure Howbeit here also the Custody and Wardship of so much of the said Knight-service Mannours Lands c. as shall amount to the yearly value of the third part thereof are saved to the King and other Lords respectively and if the King or other Lord have not in this case a full third part set out for them they may respectively take into their possession so much of the other two parts as will make it a full third part Provided that all persons shall sue Liverie for Possessions Reversions or Remainders and pay Reliefs and Heriots as they did before the making of this Act. Fines for Alienations shall be paid in Chancery upon Writs of Entry in the Post for common Recoveries suffered of any Mannours Lands c. holden of the King in chief in like manner as upon Alienations of such Mannours Lands c. by Fine or Feoffment Howbeit no other Fine shall be paid there for any such Writs but only such Fines for Alienations Where two or more hold any Mannours Lands c. of the King by Knight-service joyntly to them and their Heirs of one of them and he that hath the Inheritance dieth his Heir being within age the King shall have the Ward and Marriage of such Heir the life of Free holder or Free holders notwithstanding saving to every Woman her Interest of Dower in such Lands to be assigned out of the two parts thereof severed from the third part as abovesaid and not otherwise and saving also the King the Reversions of all such Tenants by joynt-Tenure and Dower after the death of such Tenants in case they happen to die during the Nonage of the Kings Ward CHAP. LIV. Matrimony and Marriage ALl Marriages shall be adjudged lawfull which are not prohibited by Gods Law What marriages shall be lawfull Spirituall persons may marry 32 H. 8.38 All Laws Canons Constitutions and Ordinances which prohibit Marriages to spirituall Persons who by Gods Law may marry and all forfeitures therein shall be void 2 3. E. 6.21 Bigamus is Felony A Bigamus shall suffer death as a Felon unless he or she have had no notice that the Husband or Wife was living within seaven years before or the Marriage be severed by Divorce This Felony shall cause no corruption of blood Bigamy causeth no corruption of blood c. or loss of Dower or inheritance 1 Jac. 11. CHAP. LV. Of Voucher VOucher is when a Praecipe quod reddat of Land is brought against a man What Voucher is and another ought to Warrant the Land to the Tenant then the Tenant shall Vouch him to Warranty and thereupon he shall have a Writ called Summoneas ad Warrantizandum And if the Sheriff return that he hath nothing by the which he may be Summoned then there shall go forth a Writ called Sequatur sub suo periculo and when he cometh he shall plead with the Demandant and if he come not or if he come and cannot barre the Demandant then the Demandant shall recover the Land against the Tenant and the Tenant shall recover as much Land in value against the Vouchee and thereupon shall have a Writ called Capias ad valentiam against the Vouchee CHAP. LIV. Voucher and Connter-Plea of Voucher WHen any demandeth Land against another A Tenant impleaded voucheth the vouchee denieth the Warranty and the party that is impleaded Voucheth to Warranty and the Vouchee denieth his Warranty in this case like as the Tenant should loose the Land in Demand in case where he Vouched and the Vouchee could discharge himself of the Warranty In the same wise shall the Vouchee loose in case where he denieth his Warranty and if it be found and tryed against him that he is bound to Warranty And if an Enquest be depending between the Tenant and the
some such Tenants have an Inheritance according to the custome of that Mannor yet in very deed they are but Tenants at the will of the Lord for as some men think if the Lord will expell them and put them forth they have no remedy at all but to sue unto their Lord by way of Petition desiring him to be a good and gracious Lord unto them for if they might have any remedy by the Law then should they not be called say they Tenants at the will of the Lord after the custome of the Mannor but other men of no less Learning and prudence have been of contrary judgment as Lord Brian Chief Justice in the time of King Edward the fourth whose opinion was alwayes that if such a Tenant by the custome paying his Services be ejected and put forth by his Lord without cause reasonable Action of Trespass he may very well bring and maintain an Action of Trespass against his Lord at the Common Law as appeareth Termino Hillarij An. 21. E. 4. Also Lord Danby Chief Justice likewise was of the same judgment as appeareth Termino Mich. An. 7. E. 4. where he saith That the Tenant by the custome is as well Inheritable to have his Land after the custome as is he that hath a free-hold at the Common Law but the determination of this question I remit to my great Masters which can lose the knots and ambiguities of the Law forasmuch as yet still of this matter Causidici certant adhuc sub judice lis est Also ye shall understand that the usage of some Mannor is when the Tenant will surrender his Land to the use of another that he shall take a Wand or a Rod in his hand and deliver it to the Steward of the Court and the Steward shall deliver the same Wand in name of Seisin to him that shall take the Land and such a Tenant is called Tenant by the Verge Divers other customs there be of surrendring of Copyhold Lands which here for tediousness I will omit And forasmuch as Tenants by custome of the Mannor have by the course of the Common Law no free-hold therefore they be called Tenants of base Tenure Base Tenure Also if such a Tenant letteth to farme his Copyhold Land for longer time then a twelve moneth and a day without the Lords licence it is a forfeiture of his Land to his Lord. And know ye that if this Tenant fell any Timber that groweth upon the Land but only for the reparation of the same this is Wast and a forfeiture of his Copyhold Hitherto have I treated of the first member of our division that is to wit of Chattels for as I said all Leases for terme of years and at will be accounted in the Law but as Chattels and be comprised under that name save that these be called Chattels reals whereas Kine Oxen Chattell reall and personall Horses Money Plate Corn and such like be called Chattels personals Now we will proceed to the explanation of the second member that is to say of Freeholds CHAP. VIII Of Freeholds FReeholds or Frank-tenements a man may have in sundry wise for either he is seized for terme of his own life or for terme of another mans life if he be seized for terme of his own life either he hath gotten such estate by way of Purchase or else the Law hath intituled him thereunto I call it by purchase whether he cometh unto it by his own bargaining and procurement or by the gift of his friend and I call it by the operation of intituling of the Law when a man marrieth a woman that is an inheritrix and hath issue by her Tenure by the Courtesie and she dieth now shall he have the Lands during his life by course of the Law and shall be called Tenant by the courtesie of England Likewise if a man be seized in fee-simple or fee-taile of Lands and taketh a wife and he dieth the Law giveth unto the wise the third part of her husbands Lands for terme of life Tenant in Dower and she shall be called Tenant in Dower CHAP. IX Tenant for terme of Life TEnant for terme of Life is he that holdeth Lands or Tenements for terme of his own life or for terme of anothers life howbeit the most frequent and common manner of speaking is to call him that hath an estate for terme of his own life Tenant for life and him that hath an estate for terme of anothers life Tenant for terme dauter vie that is to say Tenant for terme of anothers life Ye shall note that like as he that maketh the Lease is called the Lessour and he to whom the Lease is made is called the Lessee so he that maketh the Feoffment is called the Feoffer and he to whom the Feoffment is made the Feoffee Also if the Tenant for terme of life or Tenant for terme of another mans life doe waste Waste the Lessour or he in the reversion shall maintain very well an Action of Waste against him and shall by the same recover trebble damages Finally Ye shall understand that by an Act of Parliament made in the 27. year of our Soveraign Lord King Henry the eight it is enacted That no Freehold nor estate of Inheritance shall pass nor take effect by reason of any bargain and sale except the same be made by writing indented sealed and enrolled in one of the Kings Majesties Courts at Westminster or else within the County where the Land doth lie before the Custos Rotulorum and two Justices of Peace and the Clerk of the Peace of the same County or two of them at least of which the said Clerk shall be one and that such enrolment be made within six moneths after the date of such writing and for the enrolment of every such writing where the Land comprised therein is not above the yearly value of Fourty shillings they shall take two shillings that is Twelve pence to the Justices and Twelve pence to the Clerk and if the Land be above the yearly value of Fourty shillings then they shall take Five shillings that is Two shillings and six pence to the Justices and Two shillings and six pence to the Clerk which shall enroll and ingross sufficiently in parchment such Deed and writing and at every years end he shall deliver the same to the Custos Rotulorum of the same County to remain in his custody among other Records of the same County so that the parties resorting thither may see them provided that this extend not to any Tenements or Hereditaments lying within any City or Town Corporate wherein the Majors Records or other Officers have authority or have lawfully used to enroll any Evidences or writings within their Precinct CHAP. X. Tenant by the Courtesie TEnant by the Courtesie of England is he that hath married a Wife inherited and hath had issue by her and she is dead in this case the Law of England permitteth and
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
take her to this endowment at the Church door she cannot have her Dower also by the Common Law of the third part of her Husbands Lands or any part or parcell of them Howbeit if she will refuse this Assignment made unto her at the Church door and demand Dower at the Common Law she may so do v ry well A man may also endow his Wife at the time of the Espousals of his own Lands the which he hath by his own possession and that Dower is called Dower ad estium Ecclesiae that is to say at the Church door Dowment ad ostium Ecclesiae Dowment de la plus beale part Dowment de la plus beale part that is to say dowment of the fairest part shall be in this case when a man is seized of Lands which he holdeth of another man by Knights-service and of other Lands which be of Socage tenure and hath Issue which is within the age of fourteen years and die and the Lord of whom the Land is holden by Knight-service entreth in the Land holden of him and the mother of the Child entreth into Socage tenure as Guardian in Socage if in this case the woman will bring a Writ of Dower against the Lord which is Guardian in Chivalry he may plead the speciall Matter and shew how she is Guardian in Socage and hath so much Land and thereupon pay the Court that she may be suffered to endow her self of so much Land being in her own custody as amounteth to the third part of the whole Lands And then the judgment shall be That the Guardian in Chivalry shall retain the Land holden of him quit from 〈◊〉 woman during the nonage of the Ward after which Judgment and Sentence given she may go and in the presence of her neighbours endow her self of the best part of that which is in her custody amounting to the third part of the whole and then is she called Tenant in Dower de la plus beale Finally ye shall understand An. 27. H. 8. That by a Statute made in the 27. year of our most dread Soveraign Lord King Henry the Eight it is enacted That where divers Persons have Estates made to them and to their Wives and to the Heirs of the Husband or to the Husband and Wife and the Heirs of their two bodies begotten or the Heirs of one of their bodies or for terme of both or one of their lives or any other Persons and their Heirs to the use of the Husbrnd and Wife or to the Wife alone for her Joynture in every such case the Woman shall not be suffered to demand any Dowrie of the residue of her Husbands Lands of whom she hath Joynture against any Tenant of the Land but in case she hath no such Joynture then may she demand her â—â—wrie after the course of the Common Law Provided nevertheless that if such Women be lawfully expulsed from their Joynture or any part thereof without fraud or covin then shall they be endowed of the residue of their Husbands Lands for as much as the Lands shall amount unto out of which they were so expulsed and put forth Provided also That if Lands or Tenements be assured to any Woman after marriage for terme of life or likewise in Joynture except it be by Act of Parliament and the Wife over-live her her Husband in whose time the Joynture was made in this case the Wife may refuse the Lands so appointed unto her in Joynture and have her Dower at the Common Law of such Lands as her Husband was seized of at any time during the coverture Also if the Husband committeth Treason Murder or Felony for which he is attainted the Wife shall not have her Dower And note That if the Husband enter into Religion and is professed the Heir shall enter into the Land but the Wife getteth no Dower till the Husband dieth M. 32. E. 2. And likewise if a man seized of Land taketh a Wife that is an Alien born and dieth she shall not be endowed except she be made Denizon by Act of Parliament T. 3. H. 6. And note That where the Wife bringeth a Writ of Dower and recovereth her right she shall recover no damages but where her husband died seized of the Lands recovered CHAP. XII A division of Inheritance HItherto have I spoken of Free-holds Damages now it remaineth to treat of Inheritances not the Inheritances that be no Free-holds for they be Free-holds also but the other Estates of which I have hitherto treated be only Free-holds and of no higher nature whereas an Estate of Inheritance although it be a Free hold indeed yet it is not to be called by name sith it is after more excellent and greater Estate but ye shall understand that of Inheritances some be of more amplitude and excellent then other some be as that Inheritance which is pure simple and without limitation of what Heirs which kinde of Inheritance is called fee-simple but when I make a limitation of what Heirs then it is called fee-tayle and of which also be two sorts as hereafter more at large shall be declared now therefore the nature of fee-simple is set forth with our accustomed compendiousness CHAP. XIII Of Fee-simple FEe-simple is as I said the most ample and large Inheritance that can be in this Realm devised or invented Fee-simple it is that which a man hath to him and his Heirs simple without any further limitation for whether they be of his own body begotten or not so that they be the next of his kinne and within the degrees it sufficeth So then Tenant in fee-simple is he that hath Lands or Tenements whether it be by purchase or by descent to him and to his Heirs and Assigns for ever for if a man will purchase Lands in fee-simple he must needs have these words his Heirs in his purchase for these be the only words that make the Estate of Inheritance Therefore if Lands be given to a man for ever and no mention be made of his Heirs he hath an Estate but for terme of his life because these words his Heirs do lack Yet nevertheless if a man by his Testament doth devise Lands to another in such place or case where the custom or Law will serve so to do although he make no mention of Heirs but saith that he bequeaths to such a person such Lands to have and to hold to him and to his Assignes for evermore here an Estate of Inheritance doth passe for in Testaments the will and intent of the Testator is to be pondered and not the formall and prescript words of the Law Also these termes in the Law frank-marriage and frank almoigne that is to say free marriage and free alms do include in the words of Inheritance And therefore if I give Lands to a man with my Daughter in frank marriage without further addition or mention of Heirs this is an estate of Inheritance as shall be declared
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
and again Mutually and on the other side the said Farmours and Grantees for term of years life or lives their Executors Administratours and Assigns shall have like advantage against them for any Condition Covenant and Agreement contained in the said Indenture as they might have had against their said Lessors and Granters their Heirs Successors all benefits and advantage of recoveries in value by reason of any warranty of deed or in Law by voucher or otherwise only except Provided that this Act shall not extend to charge any Person for Breach of any Covenant or Condition comprised in any such writing but for such as shall be broken and not performed after the first day of September in the 32. Year of this King and not before CHAP. XXIII Livery of Seisin and Atturnement IN all Feoffments gifts in tayle Leases for term of anothers life of Lands or Tenements there can be no Alteration Transmutation of Possession by the Antient Laws of this Realme unless there be a certain Ceremony Adhibited and Solemnized in the presence and sight of neighbours or others which Ceremony is called Livery of Seisin And ye shall understand The manner Livery of Seisin that this Ceremony of Livery of Seisin is done when the Feoffour Donour Lessour or other Deputy come with the Neighbours Solemnly to the Lands or Tenements and they put the Feoffe Donee or Lessee in possession of the said Lands or Tenements by delivering to him a Clod of Earth or the ring of the Door or some other thing in the name of Seisin and for this self cause this Ceremony of Law is called Livery of Seisin that is to say a Tradition or giving of Seisin But this Ceremony is not required in Leases for term of years Diversity between Possession and Seisin or in Leases at will For as much as the Lessour in such Lease remaineth still seized and the Lessee only hath possession without any Livery of Seisin and therefore the terms of the Law be that such a man is possessed whereas in Feoffments gifts in tayle and Leases for life he is called seized Wherefore if a Feoffment or Lease for life be made of Lands or Tenements and before that the Livery of a Seisin be made the Feoffour dieth the Heir of the Feoffour shall have Lands Per summum jus that is to say by the Rigour of the Law Notwithstanding that the Feoffee have paid to the Feoffour the price of the Land and although the Feoffee be in possession but otherwise it is of a Lease for term of Years A like Ceremonie is used Atturnment when Rent-charge Rent-service Rent in gross a Villain in gross common in gross common for Beasts certain Estovers and such other things as pass by way of grant be granted for it is no full and perfect grant till it be consignat and sealed as it were with the Ceremonie of Atturnment this Atturnment is nothing else but when the Tenant of Land of which a Rent granted is granted or out of which a Rent is granted doth make some evident signification and token that he accepteth the person to whom the grant is made to be in the same respect unto him that the granter was as for an example if the Tenant of the Land after he have heard of the grant cometh to the grantee that is to wit to the person to whom the grant was made and say in this wise or in like effect I agree unto the Grant made unto you by such a man How attu nment shall be made or I am well apaid and contented of the Grant that such a man hath made unto you but the most usuall frequent form of Atturnment is to say Sr I atturn unto you by force of the said Grant or I become your Tenant or to deliver unto the grantee a Peny or a Halfpeny by way of atturnement If a man maketh first one grant to one person and after another to another person that grant shall stand to which the Tenant will atturn although it be to the later grant And ye shall note That if a man be seized of a Mannour which is parcell in demean and parcell in service and doth alien the same Mannour to another unless the Tenant of the Mannor do atturn the Service shall not pass only Tenants at will excepted for it needeth not to cause them to atturn Note furthermore Diversity there is a great difference between giving a Peny in name of Seisin and giving by way of Atturnement for when it is given by the Tenant to the Grantee in the name of Seisin it doth not only imply an Atturnment Assize but also it giveth him such a seizin that if the Rent afterward were behind and not paid he may now upon the seisin of the Peny after a lawfull distress taken and after Rescous made Writ of Rescous bring an Assize of Novel Disseizin whereas if it were given only by way of Atturnement he could not bring the Assize but his Writ of Rescous only if Rescous were made Also ye shall understand That where Lands be deviseable by Testament by the custome of any ancient Borough or City if the reversion of any Lands be by Testament bequeathed to a man in fee and the Testator which we call the devisor dieth the devisee that is to wit he to whom the devise was made hath forthwith the reversion in him without further ceremonie of Atturnement Atturnment likewise it is if a man by testament doth bequeath a Rent-charge that he is seized of or of a Rent-service there needeth none atturnement at all If two Joyntenants of Land and the Lord granteth the services to another if one of the Joyntenants atturneth it is enough Finally If a Lease be made for terme of life the remainder to another in tayl the remainder over to the right Heir of the Tenant for terme of life in this case if the Tenant for terme of life will grant his remainder in fee to another by his deed this remainder passeth forthwith without any atturnement For if any Atturnement were requisite it should be made of the Tenant for terme of life Not Requisite which in this case is the granter himself And in vain it is that the granter should be inforced to atturn sith an atturnment is adhibited and had to none other purpose then to have the consent and agreement of the particular Tenant to the intent that it may appear that he hath notice and knowledg of this grantee but here where the particular Tenant himself is the granter an atturnement were superfluous and more then needed Note furthermore That where there is Lord and Tenant and the Tenant leaseth his Tenements to a woman for life the remainder over in fee the woman taketh a Husband and after the Lord granteth the services c. to the Husband in this case during the coverture the services be put in suspence Suspence but if the Wife die leaving the Husband
remembred Finally Every person shall sue forth his Patent for his Livery within three Moneths next after the assignment of his Bill or else his Bill assigned to be void and of none effect Hereafter ensueth the Fees Accustomed of the Generall Liveries FIrst to the Clerks of the Petty bog for the respect of Homage and Fealty the writing and inrolling fourteen Shillings two Pence to the Lord great Chamberlaine fourtie Shillings to the Master of the Rolles three Pound to the Clerks of the Liveries for writing of the Indentures and Obligations twenty Shillings besides Councell The Fees of the special Livery accustomed to be paid by these following That is to say for the signet three Pound ten Shillings for the Privy Seal thirtie Shillings for the great Seal fourty four Shillings eight Pence to the Clerks of the Petty-boggs fourty Shillings to the Master of the Liveries Clerks fourty Shillings for inrollment of the knowledge of the Indenture twelve Shillings to the Lord great Chamberlaine of England fourty Shillings for the Writ of the Allowance for the same Livery ten Shillings six Pence And note ye that sometime in speciall Cases the Fees be more and sometime less as the case and matter doth require Hitherto have we briefly touched all kinds of Knights-Service and things incident to the same Now will we with like briefness declare the other kind of Services which commonly be comprized under the generall Name of Socage For all Lands or Tenements either they be holden by Knights-Service or else by Socage Tenure or at least by the Nature of Socage Tenure which in effect is all one Wherefore first we shall define what Socage is in the proper signification which done we shall peruse the other kinds of Services which be of the nature of Socage Tenure CHAP. XXXIII Socage SOcage is properly where the Tenant is bound to come with his Yoke that is What Socage Tenure is with his Plow to Ear and Sow a parcell of the demeane Lands of his Lord which service in antient time was very common but now by the mutuall consent both of the Lord and the Tenant it is converted for the most part into a yearly Rent howbeit the name of Socage abideth still Wherefore now all that is not Knights-service is called by the Name of Socage so that if a man holdeth by Fealty only or by Fealty and Homage For all manner of service it is but Socage Tenure For Homage alone maketh not Knights-service as I have said heretofore He holdeth in effect but by Socage Gardian in Socage Now where a man holdeth his Lands by Socage and dieth his Heir being within the age of fourteen years the Lord shall not have the Ward but the next of kinne to the Heir to whom the Heritage cannot discend shall have the Title and Wardship as well of the Land as of the Heir till the Heir come to the age of fourteen years And such tutor or Gardian is called Gardian in Socage and shall render accounts to the Heir of the Issues and Profits that he hath received of the Lands during such time deducting his reasonable Costs and Expences So that he shall not have the Wardship to his own use and profit as the Lord which is Gardian in Chivalry hath And in case the Gardian in Socage dieth before he hath made his account the Heir is without remedy because no Writ of account lyeth against the Executors but for the King only Finally Ye shall understand that when a Tenant in Socage dieth Rent the Lord of whom the Land is held shall have Relief That is to say Distress the value of the Rent that is yearly due unto him of the Tenancy beside the yearly Rent So that in effect after the death of his Tenant he shall have of the Heir two Rents save that for the Relief he may distrein forthwith but for the accustomed Rent he cannot distrein till the usuall day of payment become CHAP. XXXIV Frank-Almoign TEnant in Frank-Almoign that is to say The first foundation of Frank almoigne in free Alms is where a Bishop Deane or any Ecclesiasticall Person holdeth of his Lord in pure and perpetuall Alms And such Tenure began first in old times after this manner When a man was seised in atient times of certain Lands or Tenements in his demesne as of Fee and of the same Tenements enfeoffed an Abbot and his Covent or a Pryer and his Covent or any other Person Ecclesiasticall as a Deane of a Colledge Master of an Hospitall and such like to have and to hold the same Lands to them and to their Successors for ever in pure and perpetuall Alms or in Frank-almes in these two cases the Tenements should be holden in Frank-almoigne By force of which Tenure they that hold in Frank-almoigne after this sort be bound of right before God to make Orisons and Prayer and to do other Divine Services for the Souls of their Granters and Feoffors and for the Souls of their Heirs which be dead Tenant in Frank-almoigne shall do Fealty and for the prosperous Estate of them and their Heirs whilest they be alive and because of right they be bound to this Divine service they be discharged by the Law to do any other Prophane or Corporall Service as Fealty or such like But nevertheless such as hold their Tenements in Frank-almoigne do omit and leave undone these Divine services whereunto they be bound before God the Lord cannot distrain them nor yet compell them by any other means by the course of the Common Law but the only remedy is to complain of them to their ordinary who of right ought to compell such Ecclesiasticall persons to do the Divine service due as afore said But here ye shall note Tenant by Divine Service That if a Parson of a Church or any other Ecclesiasticall Person did before the Statutes of dissolution of Abbies Monastries c. hold of the Lord by certain Divine Service to be done as to sing Mass every Friday or placebo dirige or to find a Priests to sing Mass or to distribute in Alms 100. pence to a hundred men at such a day Distress for Divine Service in all these cases if such Divine service be undone the Lord may very well Distrain because the service is here put in certain Now as I said before that if in old time a man did Enfeoffe such Ecclesiastiall Person after such sort he should hold his Lands in Frank-almoigne but at this day it is otherwise for by reason of the Estatute called Quia emptores terrarum Westmin 3. Cap. 1. No man can Alien nor grant Lands or Tenements in Fee-simple to hold of himself So that now if a man being seized of Lands in Fee-simple granteth the same by Licence to an Ecclesiasticall Person in Frank-almoigne These words Frank-almoigne be void and the Ecclesiasticall Person shall hold them immediately of the Lord of the Feoffer by the same services that
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
the Feoffer and the Feoffee otherwise it is of Feoffments in Fee simple made before the Statute of Westminster the third Cap. 1. called Quiae emptores terrarum For before the making of that Statute if a man had made a Feoffment in Fee-simple reserving to him a certain Rent yet though it had been without Deed here had been begun and Created a new Tenure between the Feoffor and the Feoffee and the Feoffee should have holden of the Feoffor who by virtue of the same might of Common right have distrained for such Rent but at this day by force of the said Act there can be no such holding or Tenure Created or begun and consequently no Rent-Service can be at this day reserved upon any gift in Fee-simple except it be in the Kings case who being chief Lord of all ever might and may give Lands to be holden of him thus ye see that at this day no Subject can reserve any Rent Service unto him unless the reversion of the Lands or Tenements that he shall grant be still in him as where he granteth them in Fee-tayle or maketh but a Lease for term of life or for certain years or else at Will For in all these cases the reversion of the Fee-simple remaineth still in him and therefore if there be any Rent reserved it is to be called a Rent-Service and is of Common right distrainable though there be no Clause of distress in the Deeed of Feoffment or Lease But here ye will ask me when in the case before remembred a man at this day giveth clean away the Land or Tenement from himself in fee-simple so that there is no manner of Reversion of the same remaining in him at all and yet nevertheless reserveth unto him by his deed a certain Rent what manner of Rent shall this be called I answer if there be in the Deed indented any clause of distress Charge that is that if the Rent be behind unpaid it shall be Lawfull for the Feoffour to enter and to distrain it is called a Rent-charge for as much as the Land is charged therewith but how of Common Right no but only by virtue and force of the wriing but on the other side if there be no such Clause of distress put in the Indenture then the Rent so reserved shall be called a Rent secke Likewise if a man that is seized of certain Land will grant either by Indenture or by Deed-poll that is to say single and not indented a Yearly Rent out of the same Lands to another whether it be in the Fee-simple Fee-tayle for term of Life for Years or at Will with Clause of distress then this Rent is called a Rent-Charge and he to whom such Rent is granted may for default of Payment thereof enter and distraine But contrary if the grant be made without any such Clause of distress it is called a Rent-seck that is to say a drie Rent because he cannot come to it in Case it be deemed by way of distress Insomuch that if he were never seized of it he is by Course of the Common Law without remedy otherwise it is of a Rent Charge for here he to whom the grant is made when the Rent is behind may chuse whether he will sue a Writ of Annuity against the granter or distrain for the Rent behind and retain the distress till the time he be paid accordingly but he cannot have both remedies together but must take him to the one for if he once recover by a Writ of Annuity Annuity then is the Land discharged and if he Sue not his Writ of Annuity but distraine for the Arrerages and the Tenant Sueth a Replevin whereupon the other anoweth the taking of the distress in Court of Record then is the Land charged and the Person of the Granter dischared of the Action of Annuity Estopple Ye shall understand That if a man will that another shall have a Rent-charge coming out of his Land and yet will not that his Person shall be by any means charged by Writ of Annuity he may then have such Clause in the end of his deed Proviso Proviso quod praeseus Scriptum nec quicquam in eo contentum ullo pacto se extendat ad onerandum Personam meam per breve seu Actionem de Annuitate sed tantum modo valeat ad onerandum Terras Fundas Tenementa mea de annuo redditu Praedicto If this or such like Clause be added then the Land is charged and the Person of the Granter is discharged Also if a man will make a Deed of Grant in this wise that if John at Stile be not Yearly paid at the Feast of Christmas for term of his life Twenty Shillings Sterling that then it shall be Lawfull for the said John at Stile to distrain for it in the manner of Dale this is a good Rent charge because the mannour is Charged with the Rent by way of distress and yet nevertheless in this Case the Person of him that made such Deed is discharged of any Action of Annuity For as much as he granted not by his Deed any Annuity to the said John at Stile but only granted that he might distrain for such Yearly Rent Furthermore ye shall note That if a man hath a Rent-charge to him and to his Heirs coming out of certain Lands and doth Purchase any parcell of these Lands to him and to his Heirs in this Case the whole Rent-charge is quenched and gone and the Annuity also Extinguishment the Cause is this that a Rent-charge cannot be in such Case apportioned Otherwise it is of a Rent-Service as for example If one which hath a Rent-Service of 20d by Year doth Purchase parcell of the Land out of which this Yarely Rent of 20d is coming this shall not extinguish or drown the whole Rent but for the parcell only For Rent Service in such case may very well be apportioned and rated according to the value of the Land Yet there be some sort of Rents-Services Rent service cannot be apportioned which in no wise can be apportioned As where a Tenant holdeth his Land of his Lord by the service to render to his Lord Yearly at such a Feast a Horse lading of Gold a red Rose a Gilliver or such like If in this case the Lord doth Purchase parcell of the Land thus of him holden this Service is gone because such Service cannot be Severed and apportioned Also Escuage is a Service that may be very well apportioned according to the difference and rate of the Land But where any Land is holden by Homage and Fealty if the Lord purchase parcell of the Land yet he shall have his Homage and Fealty still of his Tenant Ye shall mark also That if a man maketh a Lease of Land to another for term of life reserving to him certain Rent if in this case he granteth that Rent to John at Stile saving to himself the Reversion of the said Land
this Rent is but Rent Seck because John at Stile that hath the Rent hath nothing in Reversion of the Land But if he granteth the Reversion of the Land to John at Noke for term of life and the Tenant Atturneth accordingly then hath John at Noke the Rent as Rent Service because he hath the Reversion for term of his life Likewise it is If a man giveth Lands or Tenements in tayle Rent is incident to a reversion Reserving to him and to his Heirs certain Rent or maketh a Lease of the Land for term of life Reserving certain Rent if he granteth the Reversion to another and the Tenant Atturneth accordingly the whole Rent and Service shall pass by this word Reversion because the Rent and Service in such case be Incident to the Reversion and do pass by the grant of the Reversion But if he had Granted the Rent only it had been Rent Seck CHAP. XXXIX What remedy a man hath to recover his Rent when it is behind I Shewed you before that for a Rent-service if it be behind you may distrain in the ground even of Common right though there be no such Clause of distress mentioned in the Deed of Feoffment Grant or Lease Also for a Rent-charge ye may distrain or bring your Writ of Annuity at your choice and election as before is declared But of a Rent Seck if you were never seized of it nor of any Parcell thereof ye be without remedy by course of the Common Law for ye cannot distrain for it nor yet bring your Writ of Annuity but if you were once seized of it or of Parcell thereof and it is eft-soones behind then your remedy shall be this ye must go either by your self or by your Deputy to the Land or Tenement out of which the Rent is coming Disseisin of Rent Seck and there demand the Arrerages of the Rent which if the Tenant denyeth to pay this deniall is desesin of the Rent Also if the Tenant be not then ready to pay it this countervaileth a deniall which is a disesin Moreover if neither the Tenant nor no other man be remaining upon the ground to pay the Rent when ye demand they Arrerages this also is a deniall in the Law Assize and is in very deed a diseisin And for these diseisins you may have an Assize of Novel diseisin against the Tenant and shall recover seisin of the Rent and the Arrerages and your Dammages and Costs of your Writ and of your Plea And if after such Recovery and Execution had In Rediseisin double damages the Rent be again at another time denied you then you may have a Writ of Rediseisin and shall recover your double Dammages It shall therefore be wisdom for a man Therecauses of disseisin of Rent service when a Rent is granted by any person unto him to take of the Tenant of the Land a Penny or half Penny in name of seisin of the Rent and then if at the next day of payment the Rent be denied him he may have an Assize of Novel diseisin And ye shall note That there be three Causes of diseisin of Rent-service that is to wit Rescous Replevin and Inclosure Rescous is when the Lord upon Land holden of him distraineth for his Rent behind and the distress be rescued from him or if the Lord cometh upon the Land to distrein and the Tenant or any other man for him will not suffer him that is called Rescous Replevin is when the Lord hath distrained Replevin and Replevin is made of the distress by Writ or by Plaint Enclosure is where Lands or Tenements be so enclosed Enclosure that the Lord cannot come within the Lands or Tenements for to distrain And the chief case why such things so made be diseisin to the Lord is forasmuch as the Lord is by this way disturbed of the mean and remedy whereby he ought to come and have his Rent that is to wit by distress And there be four Causes of diseisin of Rent-charge Four Causes of Diseisin of Rent-charged that is to wit Recous Rplevin Enclosure and Denier For Denier or deniall is as well a diseisin of a Rent-charge as it is of a Rent-secke Finally You shall understand that there be two cases of deseisin of Rent-secke that is deniall and Inclosure And it seemeth that there is yet another cause of diseisin of all the three Rents aforesaid that is to wit And two of Rent-secke this when the Lord cometh to the Land holden of him or when he that hath a Rent-charge or a Rent-secke cometh to the Land to distrain for the Rent behind or to demand the Rent and the Tenant hearing this encountreth him and forestalleth him the way with force and Arms and menaceth him in such sort as he dare not come to the ground for to distrain for his Rent behind for fear of death or mutilation of his members This is a Diseisin because the party is disturbed of his mean and lawfull remedy whereby he ought to come to his Rent Finally Ye shall observe and mark That by an Act of Parliament made in the 22th year of our Sovereign Lord King Henry 8 it is lawfull for the Executors and Administrators of Tenants in Fee-simple Tenants in Fee-tayl Tenants for terme of life of Rent-services Rent-charges Rent Seckes and of Fee-farmes for Arrereages of such Rents as were due to the Testators in their lives either to distrein for the same or at their Election to bring an Action of debt except in such Lordships in Wales Distress or Action of Debt or in the Marches thereof whereas the Tenants have useed time out of mind to pay unto every Lord at his first entry into the Lordship any summe of Money for the redemption of all manner of Outcries and Penalties incurred at any time before their Lords entry Also by force of the said Act the Husband which was seized in the right of his Wife may after the death of his Wife either distrein or bring an Action of Debt for the Arrerages of such Rents as were due and unpaid in her life Likewise it is of him that hath a Rent for the term of another mans life if he for term of whose life he hath the Rent dieth yet by vertue of the said Act he or his Executors and Administrators may either distrein or bring an Action of Debt for the Arrerages due before the death of him for term of whose he had the Rent CHAP. XL. How Recoveries ought to be made of Rents and Services UPon a Replevin sued an Avowry may be made by the Lord or Conusance and Justification by his Bayliff or Servant upon the Land holden of the said Lord without naming any person certain to be Tenant thereof The like Law is also upon every Writ sued of second deliverance In any Replegiare or second deliverance for Rents Customes Services or dammage Feasant if the Avowry Conusance or Justification be found
The Exact Law-giver Faithfully Communicating To the skilfull The firm Basis and Axioms of their Profession To the ignorant Their Antient and undoubted Birthrights and Inheritances Being as a Light unto all the Professors of the Law as well Counsellors as Atturneys Clerks Soliciters Scriveners c. OR A MANV-DVCTIO Or a Leading as it were by the hand all such both of the Gentry or Laity as desire to be Instructed how to gain or preserve their Estates from the hands of their cruell Adversaries to the Perfect Knowledg of the Common and Statute Law of this Nation Cicero lib. 1. de Leg. Ratio cum est in mente hominis confirmata conferta lex est lex est radius divini luminis LONDON Printed for Thomas Bassett in St Dunstans Church-yard in Fleet-street 1658. To the READER THis Book being an Antient Manuscript coming to my hands which through my own small skill in the Law perceiving it to be an Ingenious thing yet desiring to bring it to the Test I do assure you the grave Judgment of such as were profound in the Knowledg of the Law with me not only approved of it but highly Commended it for an Ellaborate and Learned Treatise adjudging it a thing worthy to be Published for the good of the whole Nation These lively Characters of the goodness of the Book agreeing with and as wonderfully relishing with my Genious being very ambitious to do something that might manifest to my self the filial love I bear unto my Country I resolved to publish it but incognito esteeming him the Charitablest man that dispenceth his Larges freely but privately Another Reason that I do not attest it with my Name is because I am no waies greedy of the worlds applaus adjuding it as little worth And if it be objected why I do not set my Friends Name to it whose Script it was I make this my Answer and Apology That I am not of their minds who to get themselves or their Friends a great applaus with the common people matter not what wiles or crafts they use so that they can any wise bring their device about But of the contrary Opinion am I detesting such absurdities who as I must say the truth do acknowledg that I am not throughly convinced in my mind that my Friend in whose Library I found this Script did make or Compose it and therefore I would not presume to affix his Name to any thing that should not be absolutely his and the smallness of the thing besides would have raised a Quaere fi I should have had such a thought Howbeit being carried with a great desire of hearing Commendations of the thing and thereby to be greatly delighted imagining the Praises of it to be the just Deserts of my worthy Friend and supposed Author I was necessitated as it were what by my own desire to do my Country good and what by the great Commendations severall Eminent Practisers of our Law gave of it to cause it to be put in print which being done I represent it to the open View of all men wishing them Candidly to peruse it not doubting but they will find it answer their desires to their great Use and Benefit But knowing on the other side that many wil be apt to spurn if they find the least Iota wanting I wish them to remember Nemo nascitur sine crimine I crave the favourable Construction of all ingenious Persons and for the Malevilous and Caterpillers of our Age which will not be content with any thing I leave as I find Vale. THE CONTENTS CHAP. I. OF the Antiquity Excellency and Perfection of the Common Laws of England page 1. CHAP. II. Of the Professors of the Law p. 9. CHAP. III. The Definition of Law p. 12. CHAP. IV. A Division of Estates p. 14. CHAP. V. Tenant for Term of Years p. 15. CHAP. VI. Tenant at Will p. 17. CHAP. VII Tenant by Copy of Court-Roll ibid. CHAP. VIII Of Freeholds p. 24. CHAP. IX Tenant for Term of Life p. 26. CHAP. X. Tenant by the Courtesie p. 28. CHAP. XI Of Tenant in Dower p. 31. CHAP. XII A Division of Inheritance p. 38. CHAP. XIII Of Fee-simple p. 39. CHAP. XIV Of Fee-tayle p. 47. CHAP. XV. Tenant after possibility of Issue Extinct p. 52. CHAP. XVI Of Perceners or other Coheirs p. 54. CHAP. XVII Of Joyn-tenants p. 60. CHAP. XVIII Tenants in Common p. 70. CHAP. XIX Of Chattels p. 84. CHAP. XX. Of Partition to be made by Joyntenants and Tenants in Common p. 87. CHAP. XXI Of Conditions p. 89. CHAP. XXII How strangers shall take advantage of Conditions p. 96. CHAP. XXIII Livery of Seisin and Atturnment p. 98. CHAP. XXIV Of Service p. 104. CHAP. XXV Knight Service p. 105. CHAP. XXVI Of Ward Marriage and Relief p. 111. CHAP. XXVII Service of Castle-Guard p. 117. CHAP. XXVIII Of Grand Sergeanty p. 118. CHAP. XXIX Petty-Sergeanty p. 121. CHAP. XXX Homage Ancestrell p. 122. CHAP. XXXI Of Liveries p. 125. CHAP. XXXII How Heirs ought to sue their Livery p. 126. CHAP. XXXIII Soccage p. 134. CHAP. XXXIV Frank Almoign p. 136. CHAP. XXXV Of Burgage p. 140. CHAP. XXXVI Of Villenage or Bond-Service p. 142. CHAP. XXXVII Of Antiet Demesne p. 148. CHAP. XXXVIII Of Rents p. 151. CHAP. XXXIX What remedy a man hath to recover his Rent when it is behind p. 160. CHAP. XL. How Avowries ought to be made of Rents and Services p. 165. CHAP. XLI For the assurance of Farmers p. 166. CHAP. XLII Of fulfilling of Recoveries by Farmers p. 169. CHAP. XLIII Of Tithes and how they shall be recovered p. 171. CHAP. XLIV Of Mortuaries p. 173. CHAP. XLV Of discontinuance 175. CHAP. XLVI How Recoveries by collusion against Tenants for terne of life is no discontinuance p. 179. CHAP. XLVII How wrongfull diseisin is no descent in the Law p. 181. CHAP. XLVIII Of limitation of prescription p. 182. CHAP. XLIX Of Fines p. 184. CHAP. L. Of Testaments or Last-Wills p. 187. CHAP. LI. The difference between Executors and Administrators p. 189. CHAP. LII For probate of Testaments p. 203. CHAP. LIII How Lands and Tenements may be by Testament or otherwise disposed of Enacted An. 32. H. 8. p. 206 CHAP. LIV. Matrimony and Marriage p. 212. CHAP. LV. Of Vouchèr p. 213. CHAP. LVI Voucher and Counter-Plea of Voucher p. 214. CHAP. LVII Of Warranty p. 220. The Exact Law-giver CHAP. I. Of the Antiquity Excellency and Perfection of the Common-Laws of England THere is no Jewel in the world comparable to Learning The Excellency of the Common Law of England no Learning so excellent both for Prince and Subject as the knowledge of Laws and no knowledge of any humane Laws so necessary as of those under which we are subject And if we respect the goodness of Law in general we shall find none so necessary for all Estates and for all Cases concerning Goods Lands or Life as the Common Laws of England And such is the judgement of the
Honourable the Lord Coke and other famous Sages of our Law the very eccho of whose words are of sufficient power to engraff an honourable respect thereof in the mind of any ingenious person And that the conceited Novelists and malevilous spirits of these our times who spurn at any thing of Antiquity may be infatuated in their opinions and withdrawn from their rash and overmalepert censure of our Common Law let them consider the Reasons which induced those Worthies to their high estimation and value of our Common Laws of England For say they if the ancient Laws of this noble Island viz. England had not excelled all others it could not be but some of the several Conquerours and Governours thereof that is to say the Romans Saxons Danes or Normans but especially the Romans who as they justly may do boast of their Civil Laws would as every of them might have altered or changed the same And this also is the opinion of the Honourable Sir John Fortescue the Lord Coke and many more Yet notwithstanding these Honourable Vouchers of the Excellency of our Common Law one Zoilus or other never leaves carping at it though thereby they do but display their own ignorance and folly even as the Flie which never leaves spurning at the Candle till it burns its own wings And of such kind are those first of all who exclaim against the Law because writ in an unknown tongue when as their object shews a worthiness in it For as all humane things are excellent by their order so the Common Law of England hath some lustre by its proper and peculiar language yea and is transcendent in its order to all humane Sciences in the world When we consider that the true genuine sense and full-fraught phrase of our Common Laws of England cannot be so well exprest nor any Case in Law so succinctly sensible and withall so fully reported and demonstrated as in that speech our Ancestours first taught it to speak viz. that trinal composition and connexture of three Languages viz. English Latine and French Which reason surely saith a Reverend Judge hath not been well understood by those who object it as a fault to the professors of the Law who say They write the Books of Law in a strange Language which none can understand but themselves that thereby the people might be kept in ignorance and they the more admired and esteemed And saith Cicero in his first Book de Oratore were held of the first Professours of the Romans Civil Law Quia veteres illi qui huic scientiae praefuerunt obstinendae atque augendae potentiae suae causa per vulgari artem suam noluerunt But the weakness of this Objection doth manifestly appear in that there is such a facility in the reading and understanding of the Law French For none can deny but that it may be learnt in a week or fortnights time without a teacher So that it may boldly be said in honour of the Common Laws of England That there is no rational Science in the world having so many words and terms of Art whose Cases Arguments and Judgements are expressed and delivered in a form of speech so plain so significant and a tongue so soon learned as our Common Laws of England The alteration of which hath brought in innumerable Petifoggers and Splitters of Causes as they may well be called who by the reading of two or three Law-books in English dare take the presumption to infatuate and delude ignorant people under the notion of being cunning in carrying on of business which if they be it is meerly in the nature of the horsleech to suck them dry that imploy them and besides through their ignorance of the true sense of the Law they undo many a Cause which good Councel might have saved Secondly Our Laws are villified with the aspersion of uncertainty and unnecessary delayes in its proceedings when we all know That the Law is but a Rule of Reason and humane Reason being pliable every way not onely the knowledge of our Law but all other rational Sciences in the whole world which are subject to argument and discourse must needs be subject to uncertainty and errour Yet if we will take the honourable the Lord Coke's Testimony there is no Art or Science which dependeth upon discourse of reason so little subject to divers Interpretations as our Common Law of England and this he spake by his own experience as in the Epistle to the second part of his Reports he tels us That in all his time there was not moved in the Courts of Justice in England two Questions touching the Right of Descents or Escheats or the like fundamental points of the Common Law So certain sure and without questions are the principles and grounds thereof And furthermore it will be a confirmation of its certainty and sure principles even to admiration when we consider with what wonderfull Judgement the grounds of our Laws were laid which in so many hundred years after their establishing do still meet with and provide for almost all the Cases that can happen in a Common-wealth And herein also doth appear profound wisdome and simplicity in their establishing in that the grounds hereof are so clear and plain that whereas the Civil Law which is so highly esteemed is fain to have gloss upon gloss even to a great number for the true understanding of the Text of their Law when the Text of the Common Laws of England which hath continued so many hundred years hath had but one Commentary upon its Text viz. the Lord Coke's Commentary on Littleton which contains the principal grounds of our Common Laws So that it plainly appears That the Judgement and Reason of the Common Law of England is more certain then any humane Laws in the world besides And for Delayes though the Law and Lawyer chiefly be blamed yet the main cause of Delayes arise from the stomackfulness and perversness of Clyents who are of that contentious disposition that they will spend all that ever they are worth so they may have their wils and through their own refractoriness and perverse humours will reverse Judgment after Judgement and Decree after Decree standing by their good wils to nothing which the Law awards And indeed there be too many of these melevolous spirits who cannot be content to undo themselves but will strive also to ruine others and not only so but will strive also to ruine others and not onely so but strive to defame the learned and honest Council because the Cause went against them when as it is the uprightness of the Law which distinguisheth right from wrong And furthermore our legal proceedings are so contrary to the common conceived opinion that almost any cause in the Common Law being orderly pursued may come to a period in a year whereas in France as Bedin testifieth the like will scarcely be in thirty years And lastly for the malediction of all frivilous Objections and in honour of our