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 [Page 2]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malevilous spirits of these our times (who spurn at any thing of Antiquity) may be infatuated in their opinions, and withdrawn from their rash and over­malepert censure of our Common Law, let them consider the Reasons which in­duced those Worthies to their high esti­mation and value of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 [Page 3]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 full­fraught 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 [Page 4]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 [Page 5]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 [Page 6]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 Common­wealth. And herein also doth appear profound wisdome and simplicity in their establishing, in that the grounds [Page 7]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 [Page 8]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 Nation: There is no Nation in the world (sayes a learned Judge) that hath a course of Justice so speedy, and withall so commodious and easie for the Subject, as our Trials of Assize, and nisi prius are; for Justice the Lady and Queen of all moral vertues, makes her progress twice in a year throughout every Country in the Land, so that the Fountaines of Justice are conveyed even home (as it were) to our very doores.

And now having shewed you the Antiquity, Eminency, and Perfection of the Common Laws of England, I shall in the next place say something of the learned Professors thereof.

CHAP. II. Of the Professours of the Law.

AS I have demonstrated unto you by infallible Reasons and sufficient Witnesses the worthiness of our com­mon Law,Of the Professors of the Law. dispersed the grand Objecti­ons which have risen against it, so shall I in this place strive to vindicate the learned Professours thereof from the unjust calumnies aspersed against them. And

First of all, It is objected against them, as it was against the Law it self, that they are the cause of long and tedi­ous Suites in that they wittingly and willingly take upon them bad Causes, knowing them to be unjust when they are first consulted with and retained; And that a bad Cause never wants a [Page 10]Councellor to defend it, and such like. To which I answer, that the learned Professor may be able to give judgment upon most Causes at their first com­mencement, and may know right from wrong, this I say they may do, and yet not wittingly maintain a bad Cause: for it is to be considered, that the Coun­sellor hears but one mans Cause only; and to be sure the Clyent will make his own Cause good: How then should the learned Counsellor be able to di­stinguish right from wrong, untill it be known what can be alledged and pro­ved by either party: how then can it be said that the Councell maintains an unjust Cause, when he knows not how the Case will be, till he had made his utmost defence? Secondly, This Ob­jection will be invalid, if we consider how tender our Judges are of the repu­tation of the profession of the Law, by branding (as it were) with infamy all such as give sinister Councill, or too boldly defend a bad Cause, so that sel­dom or never are such permitted to rise to any higher degree in the Law; and this is the testimony of one of our famous Judges: and for the Attorneys [Page 11]or practisers, they are commonly cast over the Barr, and detained from pra­ctice upon their default; such great care is taken to suppress dishonesty a­mongst the professors of so Honou­rable a Science. So now seeing that there is no just Cause of such aspersions, which I hope few can deny; yet if they do, I am sure they must allow, That all men, at all times, and in all places, do stand in need of justice, which is the Law, for Law is but the rule of justice, and without her support the Noble man cannot maintain his Honour, nor the subject his liberty; nay, without her no man living, either virtuous or vi­cious, can enjoy his life or any thing that makes his life delightfull: If the Law then merits so much of all man­kind in generall, (for that it is the foun­tain of all our benefits;) what do the professors of this Law then deserve, which draw these benefits out of this fountain, and convey the same to every one of us: for the Law being only a rule to measure the actions of men, the rule cannot measure unless applied by the hand of the Architect: and Cicero defining the Law sayes; It is mutus [Page 12]Magistratus, even dumb and speaks not but by the tongue of a learned and eloquent Lawyer; deaf and heareth no complaints but by the ear of a grave and potent Judg; blind and seeth not, but by the eye of a watchfull and diligent Officer: so that without these Interpreters of the Law, viz. the learned Professors thereof, there can be no use or application of the Law, and consequently the Law and Justice it self cannot consist without them.

Thus have I briefly treated of the Law and Lawyers, answering to all the Objections that might be brought a­gainst the one or the other. In the next place I will lay before you the definition of the Law, that from thence we may proceed to the structure it self.

CHAP. III. The Definition of LAW.

LAw is defined by our Ancestors and others,What Law is. to be that which commands those things which are to be done, and [Page 13]forbids their contraries.

2. To be the rule of all morall Acts, obliging to what is right, and is the con­servation of Justice, which is a constant and perpetuall will to give every one his own.

3. The precepts of Law are, as Bra­cton saith, to live honestly, wrong no man, give every man his own, and the like.

4. The Law is the direction and ad­ministration of Justice and Injustice, is (as the Emperour Justinian saith) a constant and permanent will to render every person his right; and duty.

5. Demosthenes the renowned Ora­tor, defines it to be the gift of God as well as the Decrees of Learned men; and so likewise Chrysippus an excellent Philosopher begins his book of Laws; The Law, sayes he, is King of all as well divine as humane Offices, the President and Councellor of all things, honest or dishonest; Captain and Ruler of the just and unjust; and is of severall natures, as well the commander of what they ought to do, as the forbidder of what they ought not to do; it is that only which distinguish­eth right from wrong; for (ubi Lex non [Page 14]distinguit nec nos distinguere debemus.) Thus you see how joyntly and severally our most famous Ancestors have defined Law unanimously agreeing; That it is a fortress for the weak to retire unto; a sanctuary for the oppressed to fly unto; restraining the boldness of the insolent; tying (as it were with ma­nacles) the hands of the potent, and like Orpheus Harp, charming the fierce­ness of the Lyon or Tyger, so as the poor Lamb may lie in safety by them.

And now having thus moderately dis­coursed of the Law, and the Professors thereof, I shall henceforward speak of severall fundamentall parts both of the Common and Statute Law of this Na­tion.

CHAP. IV. A Division of Estates.

YOu shall therefore understand, that whosoever hath any Estate in Lands or Tenements, either he hath in the same only a Chattell, or a Free hold, [Page 15]or an Inheritance;Chattell. if he hath an Estate but for terme of certain years, or at his Landlords will, then it is called a Chat­tell; if for terme of his life, or for any other mans life, it is called a Free-hold;Free-hold. and if he hath to him and to his heirs in fee-simple or in taile,Inheri­tance. then he hath an Estate of Inheritance.

CHAP. V. Tenant for terme of Years.

TEnant for terme of years, is he to whom Lands or Tenements be let for terme of certain years, 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 [Page 16]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 [Page 17]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 [Page 18]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 [Page 19]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 [Page 20]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-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. [Page 21] & 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 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, [Page 22]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 [Page 24]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, [Page 25]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 [Page 27]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 [Page 29]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 [Page 30]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 [Page 32]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 [Page 33]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 [Page 34]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 [Page 35]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 [...] [Page 36]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 [...]wrie, after the course of the Com­mon [Page 37]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 [Page 39]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 [Page 40]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 [Page 42]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 [Page 43]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 [Page 45]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 [Page 46]man seized of Lands, and hath Issue a Sonne and a Daughter by one Wife, and afterwards a Sonne by another, he dieth, and after his death the eldest Sonne entreth not but dieth without Issue, before he can make actuall entrie, here in this case his Sister shall not have the Lands as Heir to her Brother, be­cause her Brother was not in actuall possession, but the younger Brother shall have them as Heir to his Father: yet if the eldest Sonne in that case had left behind him Issue of his body, whe­ther it had been Sonne or Daughter, this Issue, notwithstanding that the Fa­ther of the Issue was never possessed, either actually or in the Law, shall have the Lands, and shall convey his descent from his Father; the cause hereof is this, that the Sonne or Daughter is lineall Heir, whereas the Brother, Sister, Unkle, Aunt, &c. be Heirs collaterall, and so ye shall observe a diversity.Diversitie.

I call an actuall possession when a man entreth indeed into Lands which be to him descended, but a possession in Law is called, when Lands be descended to a person, and he hath not yet really and actually entred into them; for not­withstanding [Page 47]that he is not in actuall possession, yet he is possessed in the Law, that is to say,Haereditae quid sit. in the eye and con­sideration of the Law, he is deemed to be possessed, for as much as he is Tenant for every mans Action that will sue for the said Lands, or else assuredly there should ensue an intollerable inconve­nience, as we shall more copiously open in another place. Ye shall furthermore understand, that this word Inheritance is not only to be accommodate and ap­plied to that which cometh by descent or succession from a mans ancestors or predecessors, but also to every purchase in fee-simple or fee-tayle.

And note, That a man can have no larger or greater estate then fee-simple.

CHAP. XIV. Of Fee-Tayle.

YE shall understand, that before a certain Statute called the Statute of West. second,West. 2. Chap. 1. there was no estate tayle, but all was fee-simple, either purely [Page 48]that is to say without condition, or at the least way conditionally,Division. as appear­eth by the presence of the said Estatute, but now sithence the promulgation of the Estatute, divers forms of Estates Tayle have risen.

Fee-tayle is, when it is prescribed and limited in the gift, what sort of Heirs and by whom engendred shall inherit.

As for example, I give Lands to a man and to his Heirs, and go no further, this is a fee-simple; but if I make a limi­tation, and adde of his body begotten, now it is a fee-tayle, that is to say, a fee or Inheritance limited, prescribed, deter­minate or assigned.

So that if I give Lands to a man and to his Heirs, he hath fee-simple, but if I give Lands to him, and to his Heirs of his body lawfully begotten, he hath but a fee-tayle, forasmuch as I appoint, limit, prescribe and express, what Heirs they shall be, and for lack of such Heirs, the gift shall be expired and worn out, and the Land shall be reverted again to the giver or his Heirs.

But ye must observe and Note, That there be two kinds of fee-tayle, there is a generall tayle and there is a speciall tayle.

Fee-taile generall is, where Lands be given to a man and to his Heirs of his body begotten, without any mention­ing and expressing by what woman they are begotten.

And therefore if a man be Tenant in the generall tayle of Lands,Generall taile. and taketh a wife and hath Issue by her and she dieth, and afterwards he taketh another wife, of whom he hath also other Issue by her, either of these Issues is inheri­table to this Land entayled. But if I express in the gift, by what woman the Heirs shall be procreated and ingender­ed, then it is an especiall tayle: as for example, to make the thing plain;Especiall taile. If Lands be given to a man, and to his Heirs of his body lawfully begotten by Margaret his wife, this is an especiall tayle, for the Issue of him begotten by another woman shall never inherit by force and vertue of the tayle: Likewise it is if Lands be given to a woman, and to the Heirs of her body lawfully begot­ten (and shew not by what man) this is a generall tayle; but if I go forward and say by such a man her husband, then it is an especiall tayle.

Also if I give Lands to a man and to [Page 50]his wife, and to the Heirs of their two bodies lawfully begotten, this is an espe­ciall tayle as well in the husband as in the wife.

Semblable it is if a man giveth Lands to another man with his Daughter or Kinswoman in frank marriage,Frank-marriage. this word (frank marriage) implieth an estate tayle speciall, and in this case as well the man as the woman hath an an estate in the speciall tayle.

But if I give Lands to a man and to such a woman, and to his Heirs that he hath begot of her, here the woman hath an estate but for terme of her life, and the Husband an estate in the especiall tayle; and likewise it is in the womans behalf, as if I give Land to a man and to his wife, and to her Heirs of her body by her said Husband engendred, he hath an estate but for terme of life, and she an estate in the speciall tayle; but in both cases, if I had said to the Heirs, and not to his or her Heirs, then should either of them have had an estate in the speciall tayle, because this word Heirs, is as well referred to the one as to the other.

Ye shall also understand, That if [Page 51]Lands be given to a man,Descent by Heir males. and to the Heirs males of his body, this is an estate tayle, and in this case the Heir female shall never inherit.

Also if a man hath Issue and dieth, and Lands be given to him and to his Heirs of his body begotten, this is a good estate tayle, although the father were dead at the time of the gift. Finally it is to be noted, that of Lands which a man hath in fee-simple, the possession of the Brother shall cause the Sister-germaine, that is to say, the Sister both by Fathers side and Mothers to inherit; and in this case the Brother by the half-blood shall not inherit, as heretofore was said, but of Lands which be entailed: Otherwise it is therefore if a man be seized of Lands in the generall tayle, and hath issue by his first wife a Sonne and a Daughter, and also a Sonne after­wards by another wife and dieth, and the eldest Sonne entreth into the Lands and after dieth, the Sister-germaine to the eldest Sonne shall not have the Land, but the younger Brother of the half-blood, because whosoever shall inherit Land or any other hereditaments in tayle, must claim them as next and im­mediate [Page 52]Heir, not to him that dieth last seized of the Lands, but to him to whom the Lands were first given unto, whom in the case before remembred, is the Sonne and Heir, and not the Daughter.

Thus ye shall mark a great diversity between the form of succession in the Lands of fee-simple,Diversitie. and the form in fee-tayle.

CHAP. XV. Tenant after possibility of Issue ex­tinct.

WHen Lands, Tenements or other Hereditaments be given to a man and to his wife, and to the Heirs of their two bodies lawfully begotten, if in this case either of them chance to die before they have Issue between them,Dispu­nishable of waste. he or she that overliveth is still Tenant in tayle, but without possibility of any Issue that can be Heir to these Lands or hereditaments thus entayled, and for this cause he or she thus over­living, is called Tenant in Tayl after [Page 53]possibility of Issue extinct, for in such a Tenant is all possibility of Issue that may be inheritable to these Lands by force of the gift in tayle utterly extinct or quenched, and by his or her death, the estate tayle shall expire, cease and be abolished for ever, and shall revert and turn again to the giver or donor from whence it came.

Yet forasmuch as the Tenant after possibility of Issue had once an Inheri­tance in him, he shall not be punished by an Action of Waste, though he make never so much waste in the Lands and Tenements, whereas yet in effect he is but a Tenant for terme of life. But if this Tenant doth alien in fee such Lands, he in the reversion may enter for the forfeiture.

And this for Estates at this present time shall suffice:Forfeiture. but to the intent that ye may the more easily comprehend all the members of the division of Posses­sions and Estates, which men have in Lands, Tenements and other Heredita­ments, it shall not be evill done, to set forth as it were in a Table before your eyes the division thereof, which is this:

Possession de

• Frank-tenement,
  • Selon comonley
    • Estate Dinhe­ritance,
      • Fee simple,
      • Fee-tayl
        • generall,
        • speciall.
    • Frank-tene­ment.
      • Apres possibilitie dissue extinct,
      • Curtesie Dangl'
      • Dower,
      • Terme de vie,
      • Terme daut vie.
  • Selon custome, que poet este di­vide en mesme le maner come franktenement al common ley.
• Chattell,
  • Reall
    • Terme daus,
    • Gard de terre,
    • Tener a volunt.
  • Personal
    • Biens move­ables.

CHAP. XVI. Of Parceners or other Coheirs.

HItherunto I have made a compen­dious and short declaration of Estates of all sorts: but where I said that among Sisters there is no preroga­tive or preheminence concerning the inheriting of their Ancestors Lands, but that they shall be all together inheri­tours, and make as it were but one Heir; it is expedient to make a further declaration and process in this behalf, and to shew how and in what manner this partition shall be made.

But ye shall understand,Division of Parce­ners at the Common Law and Parceners by Cu­stome. That there be besides Parceners at the Common Law which be only Sisters, also Parce­ners by Custome which is amongst Bro­thers, contrary to the course of the Common Law, and this custome is in some places of Rent, and in other places where Lands and Tenements, be of the tenure of Gavelkind.

Ye shall therefore kow, That when a man is seized of Land in fee-simple or [Page 56]fee tayle, and hath no issue but Daugh­ters, and die, and the Daughters do enter into the Lands thus descended unto them, now they be called Parceners or Co-heirs,Writ de partione facienda. and by a Writ called de partitione facienda, brought by one of them against the others, they shall be constrained by the Law to suffer an equall partition to be made of the Lands between them.

Now partition may be made in sundry wayes; one way is, when they themselves do make partition between them of the whole heritage, and do agree unto the same, and do enter every one into her part so allotted unto her.

Another way is,Partition in divers manners. when by all their agreements and consent, one common friend doth make the partition, in which case the eldest Sister shall have the first election, and after her the second Sister and so forth; but if they agree that the eldest Sister shall make the partition, and she maketh it, then the eldest shall not choose first, but shall suffer all her Sisters to choose before her, as it is thought.

There is also another form of parti­tion, which is, equally to divide the Lands into so many parts as there are [Page 57]Co-heirs or Parceners, and to write every part so divided in a severall scroule of paper, and so put the said scroules in a bonet, or to inclose them severally in balls of wax, and then the eldest Sister to choose which ball she will, or to put her hand into the bonet and take a scroule, and to hould her to her chance and allotment, and so consequently every Sister after other.

And ye shall note,Nota. That Partition by agreement may as well be made by nude and bare words without writing as by writing.

And if any of the Parceners will not suffer any partition to be made, then may the other that would have parti­tion,A writ de partritone facienda. purchase a Writ called De parti­tione facienda, against them that refuse partition, to compell the same to suffer partition to be made accordingly, and then by the judgment of the Court, the Sheriff by the serement and Oath of twelve men shall make partition be­tween them, and shall assign to each Sister her portion as he shall think good, without giving any election of choice to the eldest.

And if two Mannors or Meases hap­pen [Page 58]to descend to two Sisters, and the Mannors be not of equall value, then may she to whom the less Mannor or Mease is allotted, have assigned unto her a Rent proportionably out of the other Mannor; for the which Rent, she and her Heirs may distrain of common right, though they have no writing thereof.

Finally ye shall understand,Distress of Com­mon Right. That if a man be seized of Lands in fee-simple, and hath Issue two Daughters, and giveth with one of his Daughters to another man that shall marry her, the third or fourth part of his Land in frank-marriage, and dieth; if in this case the Daughter that is in this wise bestowed and advanced, will have her portion of her fathers heritage, she must put her Land given unto her in frank-marriage in hochpot new again,Hochpot. I mean she must be contented to suffer her said Lands to be commixed and mingled with the other Lands of which her Father died seized in fee-simple, so that an equall division may be made of the whole, or or else she shall have no part of those Lands of which her Father died seized; but if her Father had made unto her a [Page 59]common gift in tayl or feofment in fee, she should not need to put her Lands in hochpot, but may very well keep and retain them still, and also have as good part of the rest of the Lands of which her Father died seized, as her other sister or Sisters have,Frank-marriage. for a gift in frank-marriage is accounted the most free and most liberall gift that can be, and that gift which the Law judgeth to be only for the advancement and be­stowing of the Daughter; whereas feofments in fee-simple, and also com­mon gifts in tayle, be accustomarily for other causes, and for the advantage rather of the giver or feoffer then of the taker.

And if Parceners make partition of Lands being within age, that partition is void.

And if Parceners in fee-simple make partition, and the part of the one is better then the other, being of full age of 21. years, then the partition is good and cannot be defeated; but if it be of Lands in fee-tayle, the one part being better then the other, that partition may be defeated by their Heirs.

CHAP. XVII. Of Joyntenants.

HItherunto briefly have we spoken of Coheirs, called Parceners of the the Common Law, which as is hereto­fore declared, do come to Lands and other hereditaments joyntly by the course, operation and act of the Law. Now shall we speak somewhat of them that either joyntly or severally come to Lands, Tenements or other Heredita­ments, by their own purchase, act, procurement and working; and of these they that come to them by joynt title way or colour, be called joyntenants, but they that come by severall titles, wayes or colours, to Lands or Tene­ments, be named Tenants in common.

So then if a man being seized of Lands or Tenements,Tenants in com­mon. or other Hereditaments, shall thereof enfeoff two, three, four or more, to have and to hold to them in fee-simple, fee-tayle, or for terme of their lives, or for terme of anothers life, these persons so enfeoffed and seized, be [Page 61]called Joyntenants also; also if two or more do expell and disseize another man of any Lands or Tenements, to their own behoof and use, these disseizors and wrong doers, are now become Joyn­tenants, because by their own act they come joyntly to this Land; but if they do disseize another man to the use only of one of them, in this case they be not Joyntenants, but he to whose use the disseizin is made, is Tenant alone of the same, and the others have nothing in the tenancy, but be called aydours or coadjutors to the disseizin.

And ye shall understand,Disseisin. Survivour taketh place. That a Disseizin is properly where a man en­treth into any Lands or Tenements there where his entry is not lawfull, and put­teth out him which hath the freehold of the same.

And ye shall further know, That the nature of Joyntenancy is, that he which surviveth and overliveth the other, shall have to himself alone the whole and entire tenancie, according to that estate which he should have had if the joynture had been continued: as for example, three Joyntenants be of Lands in fee-simple, and the one half hath Issue and [Page 62]die, in this case the two which do over­live their fellow, shall have the whole Lands between them, and the Issue of him that is departed getteth nothing; and if the second Joyntenant hath Issue also and die, the third which hath over­lived them both, shall now have and enjoy the whole to him and to his Heirs for evermore.

But otherwise it is of Coheirs,Diversitie. which in our Law are called Parceners; for if there be three such Coheirs and Parce­ners, and before any partition made, the one have Issue a Sonne or a Daugh­ter and dieth, her portion shall descend and fall to his child, and shall not runne amongst the other joynt-heirs or Co­parceners; howbeit if such Parcener or Coheir had died without Issue, then should his portion have descended to his Coheirs; but how? not by force of surviver or overliving, which in Latine is ealled jus acrescendi, but by very descent; for where any of the Coheirs die without Issue, who can be Heir to him or her so dying, but the other Co­heirs to him or her so dying, or the rest of the Coheirs if there be many?

And like as this right of survivor or [Page 63]overliving holdeth place amongst Joyn­tenants of Lands and Tenements, so in like manner it holdeth place amongst them which have joynt estate or posses­sion with others, of Chattels whether they be reall or personall; as (for ex­ample) if a Lease of Lands or Tenements be made to many for terme of certain years, the overliver or overlivers shall have the whole during the terme by force of the same Lease;Joynte­nants of reall and personall goods. so of Chattels personall; if an Horse, Oxe, grain or other such personall Chattell be given to many, he which overliveth shall have the same alone; in semblable wise it is of Debts and duties; for if an Obligation be made to many for one debt, and of some other Covenants and Contracts the Law is likewise so.

Also some Joyntenants may be which may have joynt estate and be Joyn­tenants for terme of their lives,Joynte­nants of severall Inheritan­ces. and yet have severall Inheritances; as where Lands be given to two men, and to the Heirs of their two bodies engendred, in this case these two persons have joynt estate for terme of their two lives, and yet they have severall Inheritance; for if the one have Issue and die, the other [Page 64]that surviveth shall have all by force of the survivour for terme of his life, and if he that surviveth hath also Issue and die, then the Issue of the one shall have the half of the Lands, and the Issue of the other shall have the other half, and they shall hold the Land between them in common, and shall not be Joynte­nants but Tenants in common;Tenants in com­mon. and the cause and reason why such Donees in such cases have a joynt estate for terme of their lives is, for that at the begining the Lands were given to them two; which words without more saying, make a joynt estate to them for terme of their lives; for if a man will let Land to ano­ther by Deed or without Deed, not making mention what estate he hath, and of this maketh livery of seisin, in this case the Lessee shall have an estate for terme of his life; and if he have no livery of seisin, he is Tenant at will, and so forasmuch as the Lands were given unto them, they have a joynt estate for terme of their lives; but the cause why they have severall Inheritance is this, for that they cannot by possibility have an Heir between them engendred as a man and a woman may have; wherefore the [Page 65]Law will that their estate and their In­heritance shall be such, as reason will after the form and effect of the words of the gift, and that is to the Heirs that the one engendred of his body by and of his Wives, and to the Heirs that the other engendreth of his body by any of his Wives; so it behoveth by necessity of reason, that they have severall Inhe­ritances; and in such case, if the Issue of one of them after the death of them both doth die, so that he hath no Issue alive of his body engendred, then the Donor which gave the Land, or his Heirs may enter in the half as in his reversion, though the other hath Issue alive; and the cause is, that forasmuch as the Inhe­ritances be severall, therefore the rever­sion in the Law is severed, and the survivour of the Issue of the other shall hold no place to have the whole; and as it is said of Males in the same manner, it is where Lands, be given to two Fe­males, and to the Heirs of their two bo­dies begotten.

Also if Lands be given to two,Survivor holdeth no place. and to the Heirs of one of them; this is a good contenancy, and the one hath a free­hold, and the other hath a fee-simple, [Page 66]and if he which hath fee-simple die, he that hath the free-hold shall have the whole by the Survivor for term of his life.

And if these two Joyntenants, joyn in a gift in the tayle to a stranger, re­serving a Rent to him that hath an estate but for his life; this reservation is void to make a Tenure: likewise it is where Tenements be given to two, and the Heirs of the body of one of them en­gendred, the one hath a free-hold, and the other fee-tayle.

Note,Rent-charge granted by a joynte­nant. If two Joyntenants be seized of an estate of fee-simple, and the one granteth a Rent-charge by his deed to another, out of that which to him be­longeth, in this case during the life of the graunter, the Rent-charge is good and effectuall; but after his decease, the Rent-charge is void, as to charge the Lands, for he that hath the Land by the Survivour, shall hold all the Land dis­charged; the cause is, for that he that surveieth claimeth to have the Land by the Surviour and not by discent of his fellow,Diversitie. but otherwise it is of Parcener or Co-heirs, for if there be two Parce­ners in fee-simple, and before any parti­tion [Page 67]be made, the one chargeth that that to him belongeth by his deed of a Rent-charge and dieth without Issue, here that which to him belongeth de­scendeth to the other Parcener; and in this case the other Parcener shall hold the Land charged, because he cometh to the half by descent as heir. Also if there be two Joyntenants in fee-simple with­in one Borough, where the Lands and Tenements within the same Borough be devisable by Testament, If the one of the said Joyntenants devise that which to him belongeth by Testament and die,Divise by Testa­ment. this devise and legation is void And the cause is, for that no devise may take effect till after the death of the Testator which bequeathed and devised the same, and by his death all the Land incontinent cometh by the Law to his fellow that Surviveth by the Survivor, which neither claimeth nor hath any thing in the Land by the devise, but in his own right by the Survivor after the course of the Law, and for this cause such a devise is void.

But otherwise it is of Parceners,A ground of the Law. seiz­ed of Tenements devisable in such case of devise for the cause above remembred; [Page 68]and it is commonly said that every Joyntenant is seized of the Land that he holdeth joyntly, per my et per tont; that is, throughout, and by all, and this is as much to say, that he is seized by every parcell, and by all, which say­ing is true, for in every parcell and part, and throughout all the Lands and Tene­ments, he is joyntly seized with his fel­low, and therefore if the one Joyn­tenant make a Feofment to his compa­nion that is void, because he can make no Livery of seizin to him.Diversity. Also if two joyntenants be seized of certain Lands in fee-simple, and the one letteth that that to him belongeth to a stranger for the term of Fourty years, and dyeth within the term, in this case, after his death the Lessee may enter and ocupy the half to him letten, during the said Term, though the Lessee never had pos­session of it in the life of the Lessour by force of the Lease,Diversity between a grant of a Rent and Lease. and the difference between the case of the grant of a Rent-charge and this case is this, that in the grant of Rent-charge by a joyntenant, the Lands or Tenements abide alway as they were afore, without that that a­ny hath right to have parcell of the Te­nements [Page 69]but themselves, and the Tene­ments abide in such pitty as they were before the Charge; but where a Lease is made by a Joyntenant to another for term of years incontinent by force of the Lease, the Lessee hath right in the same Land; that is to say, of all that that to his Lessour belongeth by force of the same Lease during his term, and if the Lessor in this case die, the other joyntenant shall have the Rent or Term during the said Term, because the rever­sion is come to him by Survivor. Fi­nally, if a joynt estate be made of Land to the Husband and Wife, and to the third person in this case, the Husband and the Wife have not in the Law in their right but the half, and the third person shall have as much as the Hus­band, and the Wife have, that is to say, the other half; and the cause is, for that the Husband and Wife be but as one per­son in the eye of the Law, and it is here in like case, as if an estate be made to two joynt-Tenants, where the one hath by force of the Joynture, the one half, and the other the other half: in semblable wise, it is where an estate is made to the Husband and Wife, and to [Page 70]other two men, in this case the Hus­band and the Wife have not but the third part, and the other two men the other two parts.

Also if two or three together disseis­eth another of Lands and Tenements to their own uses, then such disseisors be called Joyntenants.

More shall be said of this matter, touching Joyntenants in the next Chapter.

CHAP. XVIII. Tenants in Common.

TEnants is Common, (as I said be­fore) be they that have Lands or Tenements in fee-simple, fee-tayle, or for term of life, which have such Lands and Tenements by severall Titles, and not by one joynt Title, and none of them knoweth that which is severall to him, and in this case they ought by the Law, before partition made between them, to occupy such Lands and Tene­ments in common and undevided, and to [Page 71]take the profits in Common; and be­cause they come to such Lands and Te­nements by severall Titles, and not by one self joynt Title, and their ocupati­on and possession in the same is among them in Common, they be called Te­nants in Common, or Tenants pro indi­viso; as for example, If a man Enfeoff two Joyntenants in fee-simple, and the one of them alieneth that that to him belongeth to another in fee, now the other Joyntenant and he to whom the Alienation was made, be Tenants in Common, for that they be seized of such Tenements by severall Titles, for the one cometh to the one half by the Feoffment of the Joyntenant, and the other hath the other half, by force of the first Feoffment made to him, and to his first fellow, and so they be in by se­verall Titles, and by severall Feof­ments.

And it is to wit,Diffiniti­on of fee only. that when it is said in any Book that a man is seized in fee, without more saying or addition, it shall be understood fee-simple, for it shall not be understood by such a word in fee, that a man is seized in fee-tayle, except there be put in it such addition in tayle.

Also if three joyntenants be,Joynte­nants. and the one of them alieneth that which unto him belongeth to another in fee, in this case the alience is Tenant in Common, with the other two Joyntenants. But yet the other two Joyntenants be seized of the two parts Joyntly, and of these two parts the Survivor between them holdeth place.

Also if there be two Joyntenants in fee, and the one giveth that that unto him belongeth to another in the tayle, the Donee and the other Joyntenant be Tenants in Common, but if the Lands be given to two men, and to the Heirs of their two bodies engendred, the Donees have a joynt estate for term of their lives, and if each of them have Issue and dye, their Issues shall hold in Common.

Also if Lands be given to two men, to have and to hold the one half to the one and to his Heirs, and the other half to the other and to his Heirs they be Te­nants in Common.

Also if a man seized of certain Lands, enfeoffeth another in the half of the same Land, without any speech of as­signement or limitation of the same, [Page 73]half in severalty at the time of the Feof­ment, then the Feoffee and the Feoffour shall hold their parts of the Land in Common.

And as it is of Tenants in Common, of Lands or Tenements in fee-simple, fee-tayle; even so it is of Tenant for term of life. Therefore if two joyntenants be in fee,Joynte­nants. and the one letteth to a man that that unto him belongeth, for term of life, and the other Joyntenant letteth that which to him belongeth to another for terme of life also; these two Lessees be Tenants in common for terme of their lives. Also if a man let Lands to two men for terme of life, and he to whom the one granteth all his estate to another, then that other Tenant for terme of life, and he to whom the grant is made, shall be Tenants in com­mon during the time that both the Les­sees be alive.

Note, If there be two Joyntenants in fee, and that one letteth that that unto him belongeth to another for terme of life, the Tenant for terme of life, du­ring his life, and the other Tenant that did not let be Tenants in common. And upon this Case a Question may arise, as [Page 74]thus; Let the Case be that the Lessour hath Issue and dieth, living the other Joyntenant his fellow, and living the Tenant for terme of life, the Question is,Question. Whether the Reversion of the half that the Lessour hath shall descend to the Issue of the Lessour, or whether the other Joyntenant shall have it by the survivour or no? And some have said that the other Joyntenant shall have the Reversion by the survivour, forasmuch as when the Joyntenants were joyntly seized in fee-simple, though one of them made an estate of that that unto him be­longeth for terme of life, and though he hath severed the frank-tenement of that that to him belongeth by the Lease, yet he hath not severed the fee-simple. But the fee-simple abideth to them joyntly as it was before, and so it seem­eth unto them that the other Joyntenant which surviveth, shall have the Rever­sion by the survivour: But other have thought the contrary, and this is their reason; when one of the Joyntenants letteth that which unto him belongeth to another for terme of life, by such Lease the Franktenement is severed from the Joynture, so that the rever­sion [Page 75]that is dependant upon the same Frank-tenement is severed from the Joynture: furthermore if the Lessour had reserved to him a yearly Rent upon the Lease, the Lessour only should have the Rent, which is a proof that the reversion is only in him, and that the other hath nothing therein.

Also if the Tenant for life were im­pleaded and make default after default,Recie. the Lessour shall be only hereupon re­ceived to defend his right, and not his fellow; which proveth the reversion of the half to be only in the Lessour; and so consequently if the Lessour die, living the Lessee for terme of life, the reversion shall descend to the Heirs of the Lessour, and shall not come to the other Joyn­tenant by the survivour after these mens opinions, yet it is doubtfull. But in this case,Quere. if the Joyntenant that hath the franktenement have Issue and die, living the Lessour and the Lessee, then it seemeth that the Issue shall have the half in his demesne as of fee by descent, forasmuch as the franktenement may not by nature of the Joynture be an­nexed to a reversion; and it is certain, that he that made the Lease, was seized [Page 76]of the half in his demesne as of fee, and that none shall have any Joynture in his franktenement, so that this shall descend to his Issue.

If three Joyntenants be, and the one releaseth by his Deed to one of his fel­lows, all the right he hath in the Land,Release. then hath he to whom the Release is made the third part of the Lands by force of the Release, and he and his fellow shall hold the other two parts joyntly; and as to the third part that he hath by force of the Release, he holdeth it with himself and his fellow in common.

And it is to wit that sometime a Deed of Release shall take effect to put the estate of him that made the Release in him to whom the Release is made, as in the case aforesaid.

Also if a joynt estate be made to the Husband and Wife, and to a third person, and the third person releaseth his right that he hath to the Husband, then hath the Husband the half which the third person had, and the Wife of this hath nothing: semblably if the third person had released to the Wife, not naming the Husband in the Release, then [Page 77]should the Wife have the half that the third person had, and the Husband no­thing of this but in the right of his Wife, because such Release shall enure to put the estate in him to whom it was made, of all that that belongeth to him that made the Release. Again, In some case a Release shall enure and serve to put all the right that a man hath that made that Release in him to whom it is made: As a man being seized of certain Lands, is disseized by two disseizors, if the person disseized by his Deed release all his right to one of the disseizors, then he to whom the Release is made, shall have and hold all to him alone, and put out his fellow out of the occupation of it. And the cause is,Disseisors. for that the two disseizors were seized by wrong by them done against the Law, and when one of them getteth the Release of him that hath right to enter, this right resteth in him to whom the Release is made, and in such plite, as if he that had the right had entered and enfeoffed him of the same; and the cause is, for that he that before had an estate by wrong, hath now by the Release a rightfull estate.

And in some case a Release shall enure [Page 78]and take effect by way of extinguish­ment,Release by way of ex­tinguish­ment. and such a Release shall help the Joyntenant to whom the Release was not made, as well to him to whom it is made, as if a man be disseized, and the disseisour maketh a feoffment to two men in fee, if the person disseized re­lease to one of the feoffees in fee by his Deed, then such Release shall inure to both the feoffees, because the feoffees have their estate by the Law, that is to say by the feoffment, and not by wrong done to any other.

And in like manner if the disseizour make a Lease to a man for terme of life,A Release shall inure to him in the re­mainder. the remainder over to another in fee, if the disseises will release to the Tenant for terme of life, all his right, this Release serveth as well to him in the remainder, as the Tenant for terme of life: And the cause is, for that the Tenant for terme of life, cometh to his estate by the course of the Law, and for this cause the Lease shall inure and take effect by way of extinguishment of the right of him that hath released; and by this Re­lease the Tenant for terme of life hath no greater estate then he had before the Release made unto him.

And yet the right of him that released is all utterly extinct and gone, where­fore for as much as such a Release cannot enlarge the estate of the Tenant for term of life, it is reason that it shall serve him in the remainder.

Also if there be two Parceners, and the one alieneth his part to another, the other Parcener and the alience be Tenants in Common.

Furthermore,Tenants in Com­mon, by Title of prescripti­on. Tenants in Common may be by Title of Prescription, if that one and his Ancestors, or they whose estate he hath in the half have holden in Common, the same half with the other Tenant that hath the other half, and with his Ancestours or them whose e­state he hath, as undenied time out of mind, and ye shall mark, that in some case Tenants in Common ought to have of their possession, severall actions and in some case they shall joyn in one acti­on,Actions severall. for if there be two Tenants in Common and they be disseised, they ought to have against the Disseisor two Assizes and not one Assize, for every one of them ought to have an Assize of his half,Assize. because they were seized by se­verall Titles, but otherwise it is of Joyn­tenants, [Page 80]for if there be twenty Joyn­tenants and they be disseised they shall have in all their names but one Assize,Assize. because they have but one Joynt-Title.

Also if there be three Joyntenants of whom the one Releaseth to one of his fellowes all the right he hath, and af­terward the other two be disseised of the whole, in this case, they shall have in both their names one of the two parts: And as to the third part, he to whom the Release was made, ought to have hereof an Assize in his own name, be­cause as to the third part he is Tenant in Common.

Also as to sue Actions that touch the Realty,Diversity. there is a Diversity between Parceners that are in by divers discents and Tenants in Common. For if a man seized of certain Lands in fee hath Issue two Daughters and die, and they enter into the Lands as Co-heirs, and each of them have Issue a Son and die without partition made between them, so that the one half discendeth to the Son of the one Parcener, and the other half to the Sonne of the other, and they Enter and Occupie in Common and be disseis­ed [Page 81]in this case, they shall have in their two names one Assize and not two Assi­zes, and yet the cause is, though they come in by divers Discents yet they be Coheirs and Parceners. Also if two Ten­ants in Common of certain Lands in fee, give the same to another man in the tayl or let it to another for term of life, yield­ing an annunity or certain Rent, or a pound of Pepper, or an Hawk, or an Horse, and they be seized of these ser­vices, and afterward all the Rent is be­hinde, and they Distrain for it, and the Tenant maketh Rescous in this case,Rescous. as to the Rent and the pound of Pepper, they shall have two Assizes, and as to the Hawk and the Horse but one Assize, and the cause why they have two As­sizes, as to the Rent and pound of Pep­per is, for that they were Tenants in Common by severall Titles, and when they made a gift in the tayle for Lease of term of life, saving and reserving to them the Reversion, and yielding to them certain Rent; This Reservation is incident to their Reversion, and because their Reversion is in Common and by severall Titles, even as their possession was before the Rent, and other things [Page 82]which may be severed, and which were to them reserved upon the gift or upon the Lease which be incident by the Law to the Reversion.Plaint in Assize. Therefore such things so severed be of the nature of the Reversi­on, wherefore it behoveth that the Rent and the pound of Pepper which may be severed to be then in Common by se­verall Titles, and of this they shall have two Assizes, and every of them in his Assize shall make his Plaint of the half of the Rent, and of the half of the pound of Pepper, but of the Hawk and the Horse which cannot be severed, they shall have but one Assize, for it were an absurdity and thing inconvenient to make a plaint in Assize, of the half of an Hawk, or of the half of an Horse: In like manner it is of the other Rents and services that Tenants in Common have in ground, by divers Titles.

And ye shall understand,Personall Action. that con­cerning Actions personalls, Tenants in Common ought to have them Joyntly in all their names: that is to say, Of trespass, or of offences that touch their Tenements in Common; as of break­ing of their Houses, breaking of their [Page 83]Closes, and Pastures, wasting and de­fouling of their Grass, cutting of their Weeds, and of Fishing in their Ponds, and such other, they shall recover joyntly damages, because the action is in the personalty and not in the re­alty. Damages.

Also if Tenants in Common make a Lease of their Tenements to ano­ther, for term of years,Tenants in Com­mon shall have one Action of Debt. yiedling unto them yearly a certain Rent, if the Rent be behind, they shall have one action of debt against the Lessee, and not divers actions, be­cause the action is in the Personalty, but in an Avowry, for the said Rent they ought to be severed, because it is in the realty, as be the Assizes.

CHAP. XIX. Of Chattells.

IT is to be known, that as there be Te­nants in Common of Lands or Te­nements, so there be Tenants in Com­mon of possessions, and property of Chattells as well Reall as Personall: Of Reall, as if a Lease be made of cer­tain Lands to two Men for term of Twenty years, and when they be there­of Possessed, the one granteth that that unto him belongeth during the term to another, he to whom the grant is made, and the other shall hold and Oc­cupie in Common.

Also if two Joyntenants have the Ward of the Body,Joynte­nants of a Wa d. and of the Lands of an Heir within age, and the one of them granteth to another that that un­to him belongth of the same Ward, then he to whom the grant is made, and the other that granteth not shall have and hold it in Common.

Of Chattels Personalls: as if two have a joynt estate, either by gift or by [Page 85]buying of an Horse or of an Oxe or such like, and the one of them granteth that that to him belongeth; here shall the grantee and he that granteth not, have and possess such Chattels personall in common: And in such case where divers persons have Chattels reals or personals in common and by divers Titles, if one of them die, the other that surviveth shall not have his fellows part by the survivour, but the Executors of him that dieth shall hold and occupy it with him that surviveth, in like form as their Testator did or ought in his life, foras­much as their rights and Titles were severall, also in the Case aforesaid, if two have an estate in common for terme of years, and the one doth occupy all and put the other out of his possession and occupation, then shall he that is put out, have against the other a Writ de Ejectio­ne firmae for the half:A Writ de ejectione firmae. in semblable manner, where two hold the Ward of Lands or Tenements during the nonage of a Childe, if one shall put out the other of his possession, he that is out shall have a Writ Ejectione custodiae, De ejectio­ne custodiae. of the half, because these things be Chat­tells Realls, and may be opportionted [Page 86]and severed, but no Action of Trespass lieth for one against the other (as for example, quare olausum fregit & herbam suam conculcavit & consumpsit, nor such like Actions,) forasmuch as each of them may enter and occupy in common: but if two be possessed of Chattels per­sonall in common, by divers Titles, as of an Horse, an Oxe or a Cow, if the one take it all to himself out of the possession of the other, the other hath none other remedy but to take it again from him that hath done him the wrong, when he may see his time.

In like manner of Chattels realls which may not be severed, as in the case aforesaid, where two be possessors of the wardship of the body of a Childe within age, if one of them shall take the Childe out of the possession of the other, the other hath no remedy by any Action at the Law, but to take the Childe out of the others possession when he seeth his time.

Finally ye shall understand,Form of Pleading. That when a man in pleading and declaring his Cause, will shew a Deed of Feoffment made unto him, or a gift in fee-tayle, or a Lease for terme of life, of any Lands [Page 87]or Tenements, he shall use his termes in this wise and say; By force of such Feoffment, Gift or Lease he was seiz­ed, &c.

But where a man will declare or plead a Lease or Grant made unto him of a Chattell reall or personall, then he shall say, By force of which he was possessed.

CHAP. XX. Of partition to be made by Joyn­tenants and Tenants in Common, enacted by two Statutes made, the one in An. 31. H. 8. and the other in 32. H.

ALl Joyntenants and Tenants in Common of any estate of Inhe­ritance, in their own rights or in the right of their Wives, of any Lands or Hereditaments within this Realm of England, Wales, or the Marches of the same, shall and may be compelled to make partition between them of the same which they so hold as Joyn­tenants [Page 88]or Tenants in common, by a Writ de partitione facienda, Writ de partitione facienda. to be devised in the Chancery, in like manner as Co­parceners are compelled to do, and the same Writ to be pursued at the Com­mon Law.Aide prayed. And after such partition made, every of the said Joyntenants and Tenants in common, shall and may have aide of the other or of their Heirs, to the intent to dereigne the warranty paramount, and to recover for the rate as is used between Coparceners after partition made by the order of the Com­mon Law.

Item, In the thirty second year of King Henry the eight, Chap. 32. it is further enacted, That all Joyntenants and Tenants in common, which hold joyntly or in common for terme of life, year or years, or Joyntenants or Te­nants in common, where one or some of them have an estate for terme of life or years, with other that have an estate of Inheritance or free-hold in any Lands or other Hereditaments, shall be com­pellable by Writ of Partition to be pur­sued out of the Chancery upon their Cases, to make severance and partition of all such Lands and Hereditaments as [Page 89]they hold joyntly or in common, for terme of life or lives, year or years, or where one or some of them hold joyntly or in common for terme of life or years, with other that have an estate of Inheritance of free-hold; Provided that no such partition nor severance be hurt­full to any person, other then such as be parties unto the said partition, their Executors or Assignes.

CHAP. XXI. Of Conditions.

FOrasmuch as every Estate is either pure or conditionall, it were not amiss to make some declaration of the nature and efficacy of Conditions.

Wherefore ye shall understand, that of Conditions some be actuall condi­tions, and be called express Conditions or Conditions indeed, and other some be Conditions in Law; which be called in Latine Conditiones tacitae sive Condi­tiones implicitae, because they be secretly implied by the Law and not expressed.

Conditions indeed be such as be knit and annexed by express words to the Feoffment,Division. Lease or Grant, either in writing or without; as for example, if I infeoff a man of certain Lands, reserv­ing to me and to my Heirs so much Rent yearly, to be paid at such a Feast, and for default of payment, that it shall be lawfull for me to reenter, this is a feoff­ment upon condition of payment: And here the reenter of the feoffor for the not payment of the Rent shall dissolve and utterly defeat the feoffment; Sem­blamble it is of Gifts in tayle, Leases, &c. but if the Condition be, that for default of payment of the Rent, it shall be law­full for the feoffor to enter again into the Lands, and to hold them till he be contented and satisfied of the Rent; this Condition not performed, doth not dissolve nor undoe the feoffment, but only giveth to the Feoffor an authority to retain the Lands (as it were by way of Distress) till he hath levied the arre­rages of Rent.Distress.

And ye shall well mark and observe, That Conditions be sometime made to be performed on the Feoffees behalf, and sometime on the Feoffors behalf: on [Page 91]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 [Page 92]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 [Page 93]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, [Page 94]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 re­enter 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, [Page 95]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, [Page 96]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 [Page 97]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; 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 [Page 98]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 [Page 99]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; S^r I atturn unto you by force of the said Grant; or I become your Tenant; or to [Page 101]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 [Page 102]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 [Page 103]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, 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 [Page 106]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 [Page 107]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 [Page 108]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 [Page 109]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 non­payment 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 [Page 110]by Act of Parliament.

Yea,Escuage Certain. and the Custom is in some place, that to what summe of Money soever Escuage is assessed, the Tenants shall pay never but such a certain summe of Money; and this kind of Escuage is called Escuage certain, that is to say, Where Escuage is assessed by the Parlia­ment to a more or less summe, the Te­nant to pay to the Lord five Shillings, and no more, nor no less, &c. Such a Tenure is called Socage Tenure, and not Knights Service, whereas the o­ther is called Escuage uncertain.

Finally,Escuage Uncer­tain. ye shall understand that E­scuage uncertain, is alwaies adjudged to be Knights Service, and draweth unto it Warde, Marriage, and Relief; but Escuage certain, is not Knights Service, but is of the Tenure of Sucage; as shall be hereafter more amply shewed.

CHAP. XXVI. Of Warde, Marriage, and Re­lief.

EVery Knights-Service draweth un­to it Warde, Marriage, and Relief; wherefore it is now right expedient somewhat to entreat of them.

Ye shall therefore be admonished,Warde. that when the Tenant which holdeth his Lands by Knights-service dieth, his Heir male, being at that time within the age of twenty one years, the Lord shall have the Warde; that is to say, the custody or keeping of the Lands so holden of him, to his own use and pro­fit, till the Heir cometh to the full age of twenty one years; For the Law here presumeth, that till he cometh to his age, he is not able to do such Ser­vice as is of his Tenure required.

Furthermore,Marriage. if such Heirs be un­married at the time of the death of the Tenant, then the Lord shall have also [Page 112]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 [Page 113]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 [Page 114]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 [Page 115]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, [Page 116]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 [Page 117]Lords: immediately, Ʋt 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, [Page 119]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: [Page 120]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 [Page 124]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 discontinuance, but shall hold now by the vulgar and accustomed Homage.

CHAP. XXXI. Of Liveries.

WHen one dieth which held of the King by Knights-service in Capite, that is to say, in chief;Tenant in chief of the King. his Heirs being within age, the King (as before is declared) shall have the wardship and custody as well of the Lands as of the body, that is to wit, the marriage if he be unmarried; but if the Heir be of full age at the time of the death of such ancestor, yet shall the King by his Pre­rogative royall, have primer Seisin of all the Lands, Tenements,Primer seisin. and other Here­ditaments whereof such his Tenant was seized in his demeane as of see:Intruder upon the Kings possession. And if such an Heir will enter into his Lands when he cometh to his full age, before he sue his Livery and receive Seizin by the King, no Freehold shall accrew nor grow unto him, but he shall be deemed an intruder into the Kings possession; yea and if he die so seized in the mean time, his Wife shall have no Dowrie of [Page 126]such Lands; wherefore it behoveth in any wise, that such Heir as well male as female, coming to full age before he or she enter into their Land to sue Livery, the manner and form whereof, according to the Act of Parliament lately promul­gated and set forth, I intend briefly to recite.

CHAP. XXXII. How Heirs ought to sue their Live­ries, enacted 33 H. 6. Cap. 21.

NO Person or Persons having Lands or Tenements, about the yearly value of five Pound,Writ Di­em clausit extremum. shall have any Li­very before Inquisition or Office found before the Eschetor or other Commissi­oner, by virtue of the Kings Writ of Diem clausit extremum, or Commissi­on directed out of the Chancery or other Courts; having authority to make such a Writ or Commission, which shall not pass out of the same, but by Warrant or Bill assigned and subscribed by the Master of Wards or Liveries, [Page 127]the Surveyor, Atturney, and recoverer of the said Court; or three, two, or one of them to be directed and delivered to the Chancellor of England, or to any other Chancellor or Officer, having power to awarde such Writs; and for the writing and sealing of the same, shall be paid of the accustomed Fees. But if the Land exceed not the said yearly value of five Pounds, then they shall pay for the Seals of every such Writ or mission eight Pence, and for the Com­writing six Pence; and not above.

And the Inquisitions and Offices hereupon found, shall be returned by the said Escheters or Commissioners in­to the same Court from whence the Writ or Commission was awarded; which done, the Clerks of the Petty-bogg shall receive the same Offices, and and make a Transcript thereof to the Master of the Wards and Liveries. And then the said Master, and the Sur­veyor, Atturney, and generall Receiver; or three of them, whereof the Master or Surveyor to be one, shall Cove­nant and Indent with such Persons for their Livery of the Castles, Mannours, Lordships, Lands, Tenements, and [Page 128]Hereditaments, comprized or not com­prized in such Offices; and shall make and set a rate and price of the same, and appoint the daies of payment thereof by Obligation, to be taken for the same to the King.

And every Bill for any speciall or ge­nerall Livery, assigned by the hands of the said Master, Surveyor, Atturney, Receiver, or three of them, whereof the Master or Surveyor to be one, shall be Warrant sufficient to the Lord Chan­cellor or other Officer, having power to pass Liveries under any of the Kings Seals accordingly: In which case, the Clerks of the Petty-bogge, or other Clerks by whom the Liveries be writ­ten, shall receive as well for themselves as for other, such Fees as hath been ac­customed.

Item, Generall Livery. Every person may sue at his pleasure a generall Livery, for any Mannours, Lands, Tenements, Rents, Reversions, Remainders, or other Hereditaments; whereof the clearly yearly value shall not exceed twenty Pounds, provided that an Office be thereof found, and a Warrant first obtained of the said Master and [Page 129]others; as is aforesaid.

And where such generall Livery is su­ed, if the Lands exceed the yearly value of five Pounds, they shall pay for the Seal twenty Shillings four Pence; and all other Fees accustomed, as afterwards shall be declared. But if they exceed not the yearly value of five pound, they shall pay but these Fees following; that is to say, for the Seal of the Livery twelve Pence to the Clerks of the Petty-bogge, for the writing and the inrolling twenty Pence, for the respect of the Homage in the Hanapar eight Pence, to the Lord great Chamberlaine twenty Pence, to the Master of the Rolles, twenty Pence, and the Clerk of the Liveries, for the Warrant and Inrolling of the Livery twenty Pence.

Item, Respect of Ho­mage. No person or persons shall pay in the Exchequer, or any other Rents for the respect of Homage; for any Lands or Hereditaments, not exceeding the yearly value of five Pound above eight Pence, and for the entering there­of, and Warrant of Atturney above four Pence.

And the value of such Lands and He-Hereditaments, not exceeding the yearly [Page 130]value of twenty Pound, shall be taken as it is limited in the Offices founden thereof, except by the examinations and Certificate of the said Master, Sur­veyor, Atturney, and Receiver, or three of them: It shall otherwise ap­pear and be declared in any of the Kings Courts.

Also, no Eschetor shall sit only by virtue of his Office, for the inquiry of the Tenure, Title, or value of any Lands, or other Hereditaments holden of the King, being of the yearly value of five Pounds,Paines of forfeit. or above, without the Kings Writ to him directed upon pain to forfeit five Pound for every time, he shall so do; neither shall he take for the finding of any Office of Lands,Fees of Office. not exceeding the yearly value of five Pound, above fifteen Shillings: That is to say, six Shillings eight Pence for his own Fee, and three Shillings four Pence for the writing of the Office, and for the Charges of the Jury three Shillings, and for the Officers that shall receive the Offices in any Court of Record two Shillings; upon pain, that the Eschetor doing otherwise, shall for every time forfeit five Pound. And [Page 131]upon like pain, the Officers of every Court of Record, where such Inquisi­tions shall be returned, being offered unto them within one Moneth, next after the finding thereof, shall receive them the one Moity of all, with forfei­tures to the King, and the other to the Party that will sue for the same, &c.

And they which hereafter shall be in case to sue Livery, whose Lands and Tenements exceed not the yearly value of five Pound, may lawfully sue forth that general Livery, by Warrant from the said Courts, as is aforesaid; al­though none other Inquisition be there­of had, nor certified, paying never­theless the Fees above 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.

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 [Page 135]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 [Page 136]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 [Page 137]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 [Page 139]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 [Page 141]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 [Page 143]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 [Page 144]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 [Page 145]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 [Page 146]years, any of these acts do imploy an Enfranchisement.

Likewise, if 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 [Page 147]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 [Page 148]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 [Page 149]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 [Page 150]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 [Page 151]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 [Page 152]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 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; [Page 153]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 [Page 154]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, [Page 155]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 [Page 156]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 [Page 157]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 [Page 158]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 [Page 159]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 [Page 161]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 [Page 162]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 [Page 163]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 22^th year of our Sovereign Lord King Henry 8, it is lawfull for the Ex­ecutors and Administrators of Tenants [Page 164]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 [Page 165]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 for the Defendant, or the Plaintiff be non-suit, or otherwise barred, the De­fendant shall recover such Dammages and Costs, as the Plaintiff should have had, if he had recorded.

Both Parties shall in such Writs have like pleas, aid, prayers, and Joynder in age, as at the Common Law, notwithstand­ing this Act,Pleas in Avoury. Pleas of Disclaymer on­ly excepted. 2 H. 8.19.

CHAP. XLI. For the Assurance of Farmers made.

ALl Leases hereafter, to be made of any Lands, or other Heredita­mens by writing indented, under Seal for term of years, or for term of life by any persons, being of the age of twenty one years; having any estate of Inheritance, either in Fee-simple, or in Fee-tayl, in their own right, or in the right of their Charges, or Wives, or joyntly with their Wives, shall be good and effectual against the Lessors; their Wives, Heirs, and Successors, ac­cording to the estate comprized in such Indenture of Lease.Surrender of the old Lease.

This Statue shall not extend to any Lease to be made of Lands in the hands [Page 167]of any Farmer, by force of any old Lease, unless such old Leases expired within a year after the making of the new; nor to any Grant to be made of any Reversions of Mannours, Lands, &c. nor to any Leases of such Man­nours, Lands, &c. which have not been lett to Farme, or occupied by Far­mers twenty years before such Lease made; nor to any Lease to be made without impeachment of wast; nor to any Lease to be made for above twenty one years, or three lives from the day of the making thereof; and that upon every such Lease, there be reserved so much yearly Rent, as hath been usually paid for the Lands so lett within twenty years next before such Lease made, and the Reversioners of the Mannours, Lands, &c. so lett (after the death of such Lessor or his Heirs) may have such remedy against such Lessee, his Executors, Assignes, as such Lessor might have had against such Les­see.

Provided that all Leases made by the Husband of Mannours, Lands,The Wife shall be party to the Lease. &c. (being the Inheritance of the Wife) shall be made by Indenture in the name [Page 168]of the Husband and Wife, and she to seal to the same, and the Rent shall be reserved to the Husband and Wife, and the Heirs of the Wife: And here the Husband shall not alien or discharge the Rent, or any part thereof longer then during the Coverture, unless it be by fine levied by Husband and Wife.

Provided furthermore, that this Act extend not to give liberty to take more Farmes or Leases, then might have been taken before this Act (Vide Stat. 25. H. 8.13. Sheepe.) nor to any Parson or Vicar to make any Lease, other­wise then they might have done be­fore.

It is furthermore enacted,What grant by a Corpora­tion is good. that the Grant, Lease or gift, or Election, of the Governour or Ruler of any Hospitall, Colledge, Deanry, or other corporation, with the assent of the more part of such of the same as have voice thereunto shall be good and effectuall, any Rule or Statute made by any Founder to the contrary notwithstanding. 32 H. 8.

CHAP. XLII. Of falsifying of recoveries by Far­mers, 21. H. 15.

A Termer for yeares may falsifie a feigned recovery had against them in the reversion, and shall retain and enjoy his Term against the recoverer, his Heirs and Assigns according to his Lease.

Also the recoverer shall have like re­medy against the termer,Avowry or Action of Debt. his Executors or Assigns by Avowry, or Action of debt for Rents and Services reserved upon such Lease, and due after such re­covery, and also like Action for wast done after such recovery, as the Lessor might have had if such recovery had ne­ver been.

No Statute of the staple, Statute Merchant, or execution by Elegit, shall be avoided by such feigned recovery, but such Tenants shall also have such remedy to falsifie such recoveries [Page 071]as is here provided for the Lessee for years.

CHAP. XLIII. Of Tythes, and how they shall be re­covered, 33. H. 8.7.

ALl Persons shall duely set forth and pay all Tythes and offerings, ac­cording to the custome of the places where they grow due.

If Tythes or offerings be not so set out and paid the party grieved may con­vent him, that so detain them, before the Ecclesiasticall Judg, who hath pow­er to hear and determine the matter in question Ordinarily or Summarily, ac­cording to the Ecclesiasticall Lawes, and to give sentence thereupon accord­ingly.

Here if any of the parties appeale, the Judg upon such appeale shall adjudge to the other party reasonable cases, and compell the Appealant to satisfie them by process and censures Ecclesiasticall [Page 171]taking surety of the other party, to whom the costs shall be adjudged to re­store the costs, in case the principall case pass against him.

If any Person after such sentence gi­ven refuse to pay Tythes or Summes of Money so adjudged, then two just of P. (1. Qu.) shall upon Certificate thereof from the Judge, commit the Party so refusing the next Goale, there to remain, till he have found Sureties to be bound by Recognisance, or o­therwise (before the same Judge) to the King to performe the said Sen­tence.

Howbeit, none shall be thereby com­pelled to pay Tythes for Lands, or o­ther Hereditaments, which by the Laws and Statutes of this Realm are discharg­ed, and not chargeable with the pay­ment of Tythes, neither shall it extend to the City of London or the Suburbs thereof.

In all cases, where any Person, who hath any Estate of Inheritance, Free-hold, Term, right or interest in any Parsonage, Vicarage, or other Ecclesi­asticall profit, which now be, or here­after shall be made Temporall, and ad­mitted [Page 172]to be, and abide in Temporall hand, and to lay uses by the Laws and Statutes of this Realm, shall happen to be hereafter outed, or otherwise wrong­ed from or concerning the same, he or she shall have remedy for the same (in the Kings Temporall Courts, or other Temporall Courts) as the case shall re­quire, by Writs of precipe quod reddat, Assize of novell disseisin, Mordance­ster, quod ei defoveat, Writs of Dower and other Originall Writs, as the case shall require; in like manner as for Lands, Tenements, and other Here­ditaments in such manner to be de­manded.

Also Writs of Covenant, and other Writs for Fines to be Levied, and all other assurances to be had and made of Parsonages, Vicarages, and other pro­fits called Spirituall, shall be devised and granted in Chancery, as hath been used for Fines and Assurances of other Land: Likewise all Judgements given, and Fines Levied, for, and of such Parso­nages, &c. shall be of like effect as judg­ments given and Fines levied of other Lands. 32. H. 8.

CHAP. XLIII. Of Mortuaries, 21. H. 8.6.

NO Spirituall Person, his Bayliffe, or Lessee, shall take or demand more for a Mortuary, then as is here­after expressed, nor shall convent any Person before any Ecclesiasticall Judge for the recovery of more for the same, then as is hereafter declared, in pain to forfeit so much as he takes or demands more, and likewise 40s. to the party grieved, to be recovered by Action of Debt, wherein no essence, &c. shall be allowed.

None shall take or demand for a Mortuary any thing at all, where (by the Custome) they have not been usu­ally paid, nor upon the death of a Wo­man covert, a Child, a Person not keep­ing house, a Wayfaring man, one not residing in the place where he happens to dye, nor where the goods of the dead Person (Debts deducted) amount not to the value of 10. Marks; nor a­bove [Page 174]the Summe of 3s. 4d. when they exceed not 30lb. nor above 6s. 8d. when they exceed 30lb. but not 40lb. nor a­bove 10s. when they amount to 40lb. or above. And if the Person dye in a place where he or she dwelleth not, their Mortuary shall be paid in the place where they had their most abode.

This Act shall not abridge Spirituall Persons to receive Legacies bequeathed to them, or to the Kings Altar.

No Mortuaries shall be paid in Wales, Callais, or Barwick, or in any of their Marches, save only in Wales, and the Marches thereof, where they have been accustomed to be paid, and such as are there paid shall be regulated accord­ing to the order prescribed by this Act.

The B^P of Bangor, Landaff: S. Da­vids and S. Assaph, and the Arch Dea­con of Chester, shall take Mortuaries of the Priests within their Jurisdiction, as hath been accustomed notwithstand­ing his Act.

Lesse Mortuaris already setled by custome shall not be increased, and there also persons exempted by this Act, shall not hereafter be chargeable.

CHAP. XLV. Of Discontinuance.

IT is called a Discontinuance by the Laws of England, whereby he hath the possession of Lands or Tenements, for the time present, and yet not have­ing the Fee-simple in himself, nor in his own right only, maketh an Alienati­on of the same to another, by reason whereof, he that should have them after him, and which then hath right unto them, cannot enter, but is driven to his remedy by way of Action, in such wise, that the said Lands be not utterly shifted, &c. gone from such Person or Persons as have right unto them, but be all only discontinued for a time, till the Person which after the death of such discontinuer hath right unto them, do continue and bring them home again, not by entry, but by suit and way of action. As for example, a Tenant in tayl of certain Lands, doth Enfeoff [Page 170]another in the same, in Fee-simple, or Fee-tayle, and hath Issue, and dyeth, his Issue cannot enter into the Lands though he hath Title, and right unto them,Formedon in the de­scender. but is but to his Action, which is called a Formedon in the descender. And if such Tenant in tayle which mak­eth such a Feoffment, hath no Issue at time of his death, it is yet neverthelesse a discontinuance to him, which is either in the reversion or in the remainder, so that neither the one nor the other can enter,Formedon in the reverter or remainder. but be driven to their Action, he in the reversion of his Formedon in the reverter, and he in the remainder to his Formedon in the remainder.

In like manner if a Bishop doth alien Lands,Entre sine assensue Ca­pitali. which be parcell of his Bishop­rick and dyeth, this is a discontinu­ance of his Successor; Forasmuch as he cannot enter, but is driven to his Writ of entre sine assensu Capitali.

Semblable, if a Deane be sold seized of Lands, in the right of his Deanry, and maketh such an Alienation, this is a discontinuance to his Successor. Also the Master of an Hospitall alieneth any Lands of his Hospitall, that is a discon­tinuance, and his Successor cannot en­ter, [Page 177]but is put to his Writ,Igressu sine assensu confratrum & sororum. De in­gressu sine ascensu confratrum & soro­rum.

But if a Parson or a Vicar of a Church will alien any of his glebe-Lands to another in Fee-simple, or Fee-tayl, and dieth, or resigneth his Benefice, this is no discontinuance to his Successor, but he may very well. enter, notwithstanding such Alienation made by his Predecessor. And the highest Writ that a Parson can have, if his Predecessor have ali­ened his Glebe-Land, or lost it by default, or Reddition, is a Juris u­trum. Reddition, that, is vo­luntarily yielding. And furthermore note, That no Tenant of the Land, can by his or their Act, discontinue the right of him in the Reversion, unless it be by Feoffment, with Livery and Sei­sin, or else by a Release with Warran­ty.

And note, That such things as pass by way of Grant by Deed, without Livery and Seisin, cannnot be discontinued, as an Advowson, Common, or a Villain in Gross, Reversion, Rent-charge, Common for Beasts certain, and such other like.

And ye shall understand, That in 32 H. 8. it was enacted that no fine, Feoffment, or other Act, to be made or suffered by the Husband only, of any Lands or Tenements being the Inheritance or the Free-hold of his Wife, during the Coverture between them, should be any discontinuance thereof, or be prejudiciall, or hurt­full to the said Wife, or to her Heirs, or to such as should have right, title, or interest to the same by the death of such Wife, but that the same Wife and her Heirs, and such other to whom such right should appertain, after her decease may then lawfully enter in all such Lands and Tenements, according to their rights and titles therein.

CHAP. LXVI. How Recoveries by Collusion a­gainst Tenants for term of life, is no Discontinuance. An. 32. H. 8.

WHere divers Persons seized of Lands and Hereditaments, as Tenants by the Courtesie of England, or otherwise, only for term of life or lives, have heretofore suffered other persons by agreement or covine be­tween them had, to recover the same against them in the Kings Court, by reason whereof they to whom the re­version or remainder thereof have belonged, have after the deaths of such Tenants been driven to their Actions, for the recontinuance and ob­taining the said Lands and Tenements so recovered, and sometimes have been clearly disherited of the same: It is enacted that all such Recoveries here­after to be had by agreement of the Party, or by covine, or against any [Page 180]such particular Tenant of Lands or He­reditaments, whereof he is or hereafter shall be seized as Tenant by the Cour­tesie of England, Tenant in tayl after possibility of issue extinct or otherwise for term of life, shall from henceforth as against such persons to whom the re­version or remainder shall then apper­tain, and against their Heirs and Suc­cessors be clearly void. Provided that this Act extend not to any person that shall by good title recover any Heredi­taments without fraud or covine, against any such particular Tenant by reason of any former right or title, nor to avoid any recovery to be had against any such particular Tenant, by the as­sent and agreement of those in the re­version or remainder, so that such assent and agreement to appear of record in the Kings Court.

CHAP. XLVII. How wrongfull Diseisin is no di­scent in the Law, Enact. Anno 32. H. 8.

WHere divers persons have by strength and without title, entered into Lands and Tenements, and wrongfully diseised and dispossessed the rightfull owners and possessors thereof, and so being seized by diseisin have died seized thereof, by reason of which dying seized, the Parties that were so diseized and dispossessed, or such other persons as before such descent might have lawfully entered into the said Lands and Tenements, be thereby clearly excluded of their entry into the Land, and put to their Action for their remedy and recovery thereof; It is e­nacted, that the dying seized hereafter, of any such diseisour, having no right or title therein, shall not be deemed any such discent in the Law, as to take away the entry of such persons, or the [Page 182]Heirs, which at the time of the same discent had good title of entry into the same. Except that such diseisor had the peaceable possession of his Lands or Tenements, whereof he shall so die seized, by the space of five years next after the diseisin by him committed without entrie; or continuall claim, by such as have lawfull title thereun­to.

CHAP. LXVIII. The Limitation of Prescription E­nacted. Anno 32. H. 82.

SEisin in a Writ of Right shall be within sixty years before the teste of the same Writ.Limitati­on of years.

In a Mordancester, Cosenage, Ayel, Writ of Entry Sur diseisin, Limitati­on of 50 years. or any other possessory Action, upon the pos­session of his Ancester or Predecessor, it shall be within 50 years before the teste of the Original of any such Writ.

In a Writ upon the Parties own seisin or possession,Limitati­on of 30 years. it shall be within 30 years [Page 183]before the teste of the original of the same Writ.

In an Avowry or Cognizance for rent, sute, or services, of the seisin of his Ancester, Predecessor or his his own, or of any other, whose estate he pretends to have, it shall be within 40 years be­for the making such Avowry or Cogni­zance.Avowry.

Formedons in reverter or remainder, & scire facias, upon fines shall be sued within 50 years after the title or cause of Action accrued; and not after.

The Party Demandant, Plaintiff, or Avowant, (that upon traverse or dei­ner by the other Party) cannot prove actuall possession or seisin, within the times above limitted shall be for ever after barred in all such Writs, Actions,Barre. Avowries, Cognizance, Prescription, &c.

Provided that in any of the said Acti­ons,Attaint upon false Verdict. Avowries, Prescriptions, &c. the party grieved may have an Attaint up­on a false Verdict given.

CHAP. XLIX. Of Fines.

FInes have their Names, because they make a finall end and determina­tion of all sutes, strifes, and debates between men. For the due levying whereof, it was enacted in the fourth year of King Henry the seventh, That every Fine after the engrossing, shall be proclaimed in the Court the same Term, and the three next, four severall daies in every Term, and in the mean time all Pleas shall cease.

The Proclamation being so made, they shall conclude all Persons both Princes and strangers, except women, covert persons under age, in prison, out of the Realm, or of none sane memory, being not Parties to the Fine.

The right and interest that any per­son or persons (other then Parties) hath or have at the time of the Fine ingrossed, is saved, so that they or their Heirs pursue such the r right or interest [Page 185]by Action or Lawfull entry, within five years after the Proclamations so made; so also is the right and interest saved, which accrues after the ingrossing of the Fine, so that the parties having the same, pursue within five years after it so accrues, and in this case the Action may be brought against the pernor of the profits.

If at the time of the Fine ingrossed, or of such accruer, as aforesaid, the persons be covert (and no parties to the Fine) under age, in prison, out of the Realm, or of none sane memory, they or their Heirs, have time to pursue their Actions within five years after such imperfection removed.

The exception that none of the parties, nor any to their use, had any thing in the Lands, at the time of the Fine levied, is saved to all persons, except parties and Princes.

Fines at the Common Law have the same force that they had before the ma­king of this Act; and a Fine may be levi­ed this way, or at the Common Law, at the pleasure of the parties.☜

Furthermore in 32. Year of [...] for the avoiding of certain doubts and [Page 186]ambiguities, it was enacted that all Fines levied of any person or persons of full age of Lands intailed before the same Fine to themselves, or to any of their Ancestors in possession, reversion, re­mainder, or use, shall immediately after the Fine ingressed, and Proclamations made, be a sufficient barre against them and their Heirs, claiming only by such En-tayle, and against all others claiming only to their use, or to the use of any Heir of their bodies.

Howbeit this Act shall not barre the interest of any persons accrued by rea­son of any Fine levied by a Woman, af­ter her Husbands death, contrary to the Statute of Ʋ. H. 7.20.

A Fine levied by him who is restrain­ed by any express Act of Parliament so to do, shall be void, notwithstanding this Act.

This Act shall not extend to any Fine heretofore levied, of Lands now in suit, or heretofore Lawfully recovered in any court by Judgement or otherwise: Nor to any Fine of Lands entayled by the Kings Letters-patents, or any Act of Parliament the reversion thereof at the time of such fine levied being in the King.

CHAP. L. Of Testaments or last Wills.

TEstamentum in Latin is as much to say as mentis Testatio, Division. that is a De­claration or witnessing of a mans mind. And there be two sorts of Testaments. The other is called Testamentum Scrip­tum, Written Testa­ment. that is a written Testament or last Will by writing, and the other is called Testamentum Nuncupaticum, The Te­stament. Nuncupa­tive a Testa­ment Nuncupative, which is when a man doth express by Mouth his last Will and Testament without writing, by calling before him certain of his Neigh­bours, in whose presence he doth signi­fie by words of his last mind and Will. And this for the most part men use to do, when for fear of suddenness of death, they dare not abide the writing of their Will. And this Will (unless it be in certain cases) is as strong and as sure, as is a Testament or last Will put in writing, and Sealed with the Seale of the Te­stator.

Also though a Testament by writing be not Sealed with the Seale of the Testator, yet is the Testament good and effe­ctuall in the Law.

And ye shall also mark, That where a man maketh once his Testament and Will, and afterwards maketh another Will by words, if his last Will be proved before the Ordinary, and by him put in writing and in sealed with his Seale, such last Will shall avoid the first Will, unless it be in speciall cases. And so alwaies the latter Will and Testament shall avoid the former.

Finally by an Act made the 21. Year of H. 8. it was ordained, that part of the Executors which take upon them the charge of a Will, may sell any Land devised by the Testator to be sold; al­beit the other part which refuse will not joyn with them.

CHAP. LI. The difference between Executors and Administrators.

EXecutor is when a man maketh his Testament and last Will, and there­in nameth the person which shall execute his Testament, then he that is so named is his Executor, and such an Executor shall have an Action against every Deb­tor of his Testator,Assets in the hands of the Ex­ecutors. and if his Executors have Assets, that is to say, sufficient in their hands, then shall every one to whom the Testator was in Debt, have Action against the Executor, if he have an Obligation or specialty to shew. But in every Cause where the Testator might wage his Law, there no Action lieth against the Executor.

Administrator is he to whom the Or­dinary commiteth, the Administration and bestowing the goods of a dead man, for default of an Executor. And Acti­ons shall lye against him, or for him as for an Executor, and he shall be charg­ed [Page 202]to the value of the goods of the dead, and not further, if it be not by his false Plea, or for that he hath wasted the goods of the dead. But if the Admini­strators dye, his Executors be not Administrators,Executors of his own wrong. but it behoveth the or­dinary to commit a new Administration. Howbeit if a stranger, (I mean him that is neither Executor named in the Testa­ment, and last Will nor yet Administra­tor appointed by the ordinary) will take the goods of the dead and Admini­strator of his own head and mind, with­out Lawfull authority, this person shall be charged and sued as an Executor, and not as an Administrator in an Acti­on which is brought against him by any Creditor. But if the ordinary make a Letter de colligendum bona defuncti, he that hath such a Letter is not Admini­strator, but the Action lieth in this case against the ordinary, as well as if he took the goods by his own hand, or by the hand of any other his Servant, by any other Commandement.

CHAP. LII. An Act of the probate of Testa­ments made Anno Dom. 21. H. 8.5.

NOthing shall be given for the Pro­bate of a Will or Commision of Ad­ministration when the goods of the dead exceed not 5lb. save only 6d. to the Re­gister. Nevertheless the Judge shall not refuse to prove such a Testament being exhibited to him in writing, with Wax ready to be Sealed and proved Communi formâ, but shall dispatch the party with­out delay.

For the Probate of a Will, and all other things concerning the same when the goods of the dead exceed 5lb. but not 40lb. the Judges Fee is 2s. 6d. and the Registers 12d. and when they ex­ceed 40. the Judges Fee is 2s. 6d. as before, and the Registers as much, or the Register may refuse the 2s. 6d. and take a penny for every ten lines of the [Page 192]Will, each line being conceived to con­tain ten Inches in length, and for these Fees they shall dispatch the party with­out frustratory delay.

Where there is no Will, or the Exe­cutors refuse it, Administration ought to be committed to the Intestates Wi­dow, if he left any, or to the Widow and the next of the Kindred; or in case he left no Widow; to one or more of the Kindred; or in case they look not after it, to any Creditor or Creditors that desire it; or (in case they also neglect it) to any other person or persons, at the descretion of the Ordinary, who is enjoyned to take Security of such Admi­nistrators for the due Administration of the Intestates goods.

Nothing shall be given for Letters of Administration, when the Intestates goods exceed not 5lb. and when they exceed 5lb. but not 40lb. the Officers Fees are only 2s. 6d.

The Executors or Administrators (calling to them two or more Creditors, or so many of the next of the Kin, or (in their default) two or more neigh­bours or friends of the dead) shall in their presence, cause a true Inventory [Page 205]to be made of the goods, and shall deliver the same in upon Oath, unto the Ordinary indented, whereof one part shall remain with the Ordinary, and the other with the Executors and Administratours.

The Judge or Ordinary shall not re­fuse to receive an Inventory indented,Inventory of goods. so tendered unto him in Court, together with his oath to verifie the same.

Lands devised to be sold shall not be accounted any of the Testators goods.

The Fee for the Copy either of the Will or Inventory, is the same with that above allowed for registring the Will, or else the Register may take a Penny for every ten lines of the length, as aforesaid.

The Officer that taketh more then his due Fee, shall forfeit that excess to the Party grieved, and besides 10lb to be divided betwixt the King and the same party grieved.

This Act shall not alter the Cu­stomes, where less money hath been for probate of Testaments.

The Ordinary may convent Execu­tors to prove the Testators Will, and [Page 206]to bring in the Inventory as before, not­withstanding this Act.

CHAP. LIII. How Lands and Tenements may be by Testament (or otherwise disposed of) Enacted. Anno 32. H. 8.

EVery person having Mannours, Lands, Tenements, or Heredita­ments, holden in Soccage, or of the nature of Soccage Tenure, and not ha­ving any such Mannours, Lands, &c. holden of the King by Knights-service Soccage, or of the nature of Tenure in chief, Soccage Tenure in chief, nor of any other person by Knights-ser­vice, shall have power to give, dispose, will, and devise, as well by his last Will and Testament in writing, or otherwise by any Act executed in his life; all such Mannours, Lands, &c. at his pleasure. Every person having Mannours, Lands, &c. holden of the [Page 207]King in Soccage, or of the nature of Soccage in chief; and having any other Mannours, Lands, &c. holden of any other person in Soccage, or of the na­ture of Soccage; and not having any Mannours, Lands, &c. holden of the King, or any other by Knights-service, shall have power to give, will, dispose, and devise, as well by his last Will and Testament in writing, as otherwise by any Act executed in his life; all such Mannours, Lands, &c. or any of them at his pleasure.

Howbeit, all such Primer Seisins, Reliefs, Fines for Alienations, and all other rights and duties for Tenures in Soccage, or in the nature of Soccage in chief, as have been heretofore used, are saved to the King and the said Man­nours, Lands, &c. are to be 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, [Page 208]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, [Page 209]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 [Page 210]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 [Page 111]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 [Page 212]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 [Page 213]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 [Page 214]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 [Page 215]an Enquest be depending between the Tenant and the Vouchee, and the Demandant doth desire a Writ to cause the Jury to appear, it shall be granted unto him. West. 2.13. Ed. 1.6.

In a Writ of Mortdancester, of Co­senage of Ayel, nuper obiit, of Intrusi­on, and the like, whereby Lands or Tenements are demanded,Counter­pleading of Vouch­er. which ought to discend, avert, remaine, or escheat, by the death of any Ancestor, or o­ther wise, if the Tenant Vouch to Warranty, and the Demandant coun­terpleadeth him, and will avert by Assize, and by the Country, or o­therwise, as the Court will award, that the Tenantor his Ancestor (whose Heir he is) was the first that entred after the death of him whose seisen he demandeth the Averment of the Demandant shall be received, if the Tenant will abide thereupon, and if not, be shall be further compelled to ano­ther answer. And in a Writ of right,Voucher in a Writ of right. if the Tenant Vouch to Warranty, and the Demandant will counterplead him, and be ready to averre by the Country, that he that is Vouched, nor his An­cestors [Page 216]had never seisin of the Land, or Tenement demanded Fee, or service by the hands of the Tenant, or his Ance­stors, since the time of him whose seisin the Demandant declareth, untill the time that the Writ was purchased, and the Plea moved; whereby he might have Enfeoffed the Tenant or his Ancestors, and then shall the Averrement of the Demandant be received, if the Tenant will abide thereupon, and if not, the Tenant shall be further compelled to another answer, West. 1.3. E. 1.39.

And whatsoever Tenant do Vouch, and the Demandant will averre in form aforesaid, his Averrement shall be ad­mitted, whether the party Vouched be absent or present, without any respect had thereunto, 20. E. 1. Stat. de vocatis ad Warantum.

In all Writs of Entre which make mention of degrees,Voucher in Writs of Entre. none shall Vouch out of the Line, or in other Writs of Entre, where no mention is made of degrees, which Writs shall not be main­tained but in cases where the other Writs of degree cannot lye nor hold place, 3. E. 1.39.

If percase the Tenant hath a deed that compriseth Warranty of another man which is bound in none of the cases aforesaid,Warrantia chartae. to Warrantie of an Elder degree, his recovery shall be saved unto him by a Writ of Warrantia Chartae out of the Chancery, when he will pur­chase it, but the Plea shall not be delayed therefore, West. 1.3. E. 1.39.

If the Tenant will Vouch to Warran­ty a dead man,Voucher of a dead man. and the Demandants will aver, that the Vouchee is dead, or that there is none such, their Averment shall be received without more delay, 14. E. 3.18.

If one being impleaded in the City of London do Vouch a forrein to Warran­ty,One im­pleaded in London doth Vouch a forrein. the Maior and the Bayliffs, shall adjourn the parties before the Justices of the Bench at a certain day, and shall send their Record thither, and the Justices shall cause the Warranter to be summoned before them, and shall try the Warranty. And the Maior and the Bayliffs shall surcease in the mean time in the matter that dependeth before them by Writ, untill such time as the Warranty be determined before the [Page 218]Justices of the Bench: And when the matter shall be determined, Command­ment shall be given to the Vouchee to depart into the City, and to answer unto the first Plea, and the Deman­dant at his Suit, shall have a Writ from the Justices of the Bench, unto the Major and Bayliffs, that they shall proceed in the Plea: And if the De­mandant recover the Tenant shall come to the Justices of the Bench, and have a Writ to the Major and Bayliffs, that in case the Tenant have lost his Land, they shall cause it to be extended, and and return the same extent unto the Bench at a certain day, and after it shall be commanded to the Sheriff of the Shire where the Warranty was Sum­moned, that he shall cause the Tenant to have of the Lands of the Warrantor to the like value, and if it fortune that the Tenant make default, at the day that is assigned him in the Bench, then shall there go forth a Writ from the Justices of the Bench to the Major and Bayliffs to seize the Land demand­ed into the Kings hands by Petite Cape, and to Summon the Tenant, that he be at the Hustings at a certain day, where­at [Page 219]the Justices shall be advised to give judgement upon the same default, if he cannot save it; And if he can save it, then the Justices shall be Cer­tyfied thereof by their Record, and by the same record they shall plead the Warranty, Cloucest. 6. E. 1.12. An. 9. E. 1. Articul. Stat. Gloucest.

None being Vouched to Warranty before the K. Just. in Plea of Land or Tenement shall be amerced,Day given to him that is Vouched. because he was not present when he was Vouched to Warranty, except the first day of the coming of the same Justices. But if he that is Vouched to Warranty be within the County, the Sheriff shall be commanded that he shall cause him to appear with the 3^d. or 4^th. day accord­ing to the distance of the places, as the Justices in Eire have used to do. And if he do remain out of the County, then he shall have reasonable Summons of 15. dayes at the least, according to the Justi­ces discretion, and the Common Law, Marlb. 52. H. 3.26.

CHAP. LVI. Of Warranty.

WArranty is in three manners, that is to say,Warranty is of three sorts. Warranty Line­all, and Warranty Collaterall, and which beginneth by Disseisin.

Warranty Lineall is where a man seized in Fee,Lineall Warranty. or in tayl, maketh a Feoffment by his deed to another, and bindeth him and his Heirs to Warran­ty, and hath Issue a Son, and dyeth, and the Warranty descendeth to his Sonne, that is Lineall Warranty, for that if no deed with Warranty had been made, then the right of the Lands should have descended to the Son, as Heir to his Father, and he shall convey the dissent from the Father to the Sonne. But if the Tenant in the tayle dis­continue the tayle,Collateral Warranty. and hath issue and dyeth, and the Unckle of the issue releaseth to the discontinued with Warranty, &c. and dyeth without issue, this is a Collaterall Warranty to the Issue in the tayle, for that [Page 221]the Warranty descendeth upon the Is­sue, the which may not convey him to the tayle, by mean of his Unckle. And in every case where a man de­mandeth Lands in Fee-tayle by Writ of Formedon, if any Ancenster of the Issue in the tayl which hath possessi­on, or which hath not possession, maketh a Warranty, and he that su­eth a Writ of Formedon, by possibi­lity by matter that may be done, might convey to him Title by force of the gift by him that made the Warranty, &c. That is then a Lineall Warran­ty, and by such a Lineall Warranty the Issue in the tayl shall not be bar­red, except that he have assets to him discended.

But if be may not by no possibi­lity that may be, convey to him Ti­tle by force of the gift by him that made the Warranty then that is a Collaterall Warranty, and by such a Collaterall Warranty, the Issue in the tayl shall be barred without any assets. And the cause that such a Collaterall War­ranty is a barre to the Issue in the tayl, is for that that all Warranties before the Statute of Glocester, which [Page 222]descended to them which be Heirs to them which made the Warranties, were barrs to the same Heirs to demand any Lands, except the Warranties that be­gan by disseisin, and for that that the said Statute hath ordained, that the Warranty of the Father shall be no barr to his Son for the Lands which come to the Heritage of the Mother, nor the Warranty of the Mother shall be no barr to the Sonne, for the Lands which come of the Heritage of the Fa­ther by the Statute. 11. H. 7. Cap. 20. And none of the Statutes have made or ordained remedy against the Warranty that is Collaterall to the Is­sue in the tayle, and therefore the War­ranty that is Collaterall to the Issue in the tayle, is yet in his force, and shall be a barr to the Issue in the tayl as it was before the Statute. And it be­hoveth that all Warranties, whereby the Heir shall be barred, that the War­ranty descended by course of the Com­mon Law, to him which is. Heir to him that made the Warranty, or else it shall be no barre, for if the Tenant in the tayl of Lands in Borough English, where the youngest Sonne shall inherit by the [Page 223]Custome, discontinueth the tayl, and hath Issue and Sons, and the Unckle releaseth to the discontinued with War­ranty and dyeth, and the younger Son bringeth a Formedon, yet he shall not be barred by such Warranty, Causâ quâ supra. And if any man maketh a Deed with Warranty, whereby his Heir should be barred, and after he that made the Warranty be attaint of Fe­lony, then his Heir shall not be barred by such Warranty, for that that such Warranty might not discend upon him, for that that the blood is corrupt.

Warranty beginning by diseisin, is,Warranty by dissei­sin. if the Sonne purchase Lands, and after let the Lands to his Father for term of years, and the Father by his Deed infeoffeth a stranger, and bindeth him and his Heirs to War­ranty, and the Father dieth, where­by the Warranty descendeth to this Sonne, but the Sonne may well en­ter notwitstanding his Warranty, for that that this Warranty begun by di­sesin, when the Father made the Feoffment which was a diseisin to the Sonne; And as it is said of the Fa­ther, so it may be said of every o­ther [Page 224]Ancester. And the same Law is, if the Ancester be Tenant by E­ligit, or by Statute Merchant, and make a Feoffment with Warranty, such Warranty shall be no Barres, because they begin by diseisin.

In Deeds where it is contained,Warranty by dedi & Concessi. Dedi & concessi tale cenementum, viz. I have given and granted such a Tenement, without Homage or any clause that containeth Warranty, and to hold of the Donors and their Heirs by a certain service, the Donors and their heirs be bound to Warran­ty; and where it is contained Dedi & concessi, &c. to hold of the chief Lords of the Fee, or of any other then of the Feoffors, or their Heirs reserving no service to himself, with­out Homage, or without the afore­said clause of Warranty, his Heirs shall not be bound to Warranty, but the Feoffor by reason of his gift shall be bound to Warranty du­ring his own life.The Hus­band doth alien his Wives Lands with Warranty. Stat. de Bigamus. 4 E. 1.6.

If a man alieneth the Land, he holdeth by the Courtesie of England, his Sonne shall not be barred by the [Page 225]Deed of his Father (from whom no Heritage to him descended) to de­mand and recover by Writ Mortdaun­cester of the seisin of h s Mother, although it be mentioned in the Deed, that his Father did bind him and his Heirs to Warranty. And if any He­ritage descend to him of his Fathers side, then he shall be barred for the value of the Heritage that is to him descended. And if in such case,Assets. after the death of his Father, any Inheri­tance descend to him by the same Fa­ther, then shall the Tenant recover a­gainst him of the Seisin of his Mother, by a Judiciall Writ, that shall issue out of the Rolles of the Justices be­fore whom the Plea was pleaded, to resummon his Warranty, as be­fore hath been done in like Cases, where the Heir of the Warrantor cometh into the Court, saying nought descended from him, upon whose Deed he is vouched; And in like manner, the Issue of the Sonne shall recover by Writ of Cosenage, Ayel, and Besaiel. Likewise and in like man­ner the Heir of the Wife shall not be barred after the death of his Fa­ther [Page 226]and Mother, to demand by act­tion the Inheritance of his Mother by Writ of Entry, which his Father did Alien in the time of his Mother, whereof no Fine is leavied in the Kings Court.Gui in vita. Glouc. 6 E. 1.3.