Imágenes de páginas

to another, by these four manner of ways; 1. By Entry.

writ. But, because at his first summons their | Property in Lands is gotten and transferred by one falleth no punishment upon the four and twenty if they come not, they very seldom or never appear The manner of upon the first writ, and upon their deproceeding of fault there is another writ* returned to the sheriff, commanding him to distrain

justices of circuits in their circuits.

judges hold in

the execution

mission con cerning the taking of nisi prius

The course the them by their lands to appear at a certheir circuit in tain day appointed by the writ, which of their com is the next term after, Nisi Prius justiciarii nostri ad assizas capiendas venerint, &c. of which words the writ is called a nisi prius, and the judges of the circuit of that county in that vacation and mean time before the day of appearance appointed for the jury above, here by their commission of Nisi Prius have authority to take the appearance of the jury in the county before them, and there to hear the witnesses and proofs on both sides concerning the issue of fact, and to take the verdict of the jury, and against the day they should have appeared above, to return the verdict read in the court above, which return is called a postea.


And upon this verdict clearing the matter in fact, one way or other, the judges above give judgment for the party for whom the verdict is found, and for such damages and costs as the jury do assess.

5. Commission

By those trials called Nisi Prius, the juries and the parties are eased much of the charge they should be put to, by coming to London with their evidences and witnesses, and the courts of Westminster are eased of much trouble they should have if all the juries for trials should appear and try their causes in those courts; for those courts above have little leisure now; though the juries come not up, yet in matters of great weight, or where the title is intricate or difficult, the judges above upon information to them, do retain those causes to be tried there, and the juries do at this day in such causes come to the bar at Westminster. The fifth commission that the judges is a commission in their circuits do sit by, is the commission of the peace in every county of their circuit. And all the justices of the peace, having no lawful impediment, are bound to be present at the assizes to attend the judges, as occasion shall call out; if any make default, the The justices of judges may set a fine upon him at their the sher fare to pleasure and discretions. Also the judges in their sheriff in every shire through the circounty. cuit is to attend in person, or by a sufficient deputy allowed by the judges, all that time they be within the county, and the judges may fine him if he fail, or for negligence or misbehaviour in his office before them; and the judges above may also fine the sheriff for not returning or not sufficient returning of writs before them.

of the peace.

the peace and

attend the

* Distringas.

2. By Descent.

3. By Escheat.

4. Most usually by Conveyance.

Of property of

gained by entry.

All lands in

England were

the Conquer priated to him quest of Eng

of him, except

upon the conland, and held 1. Religious lands. 2. The men of Kent. sea telongeth to

and church

lands of the

Land left by the

the king.

1. Property by entry is, where a man findeth a piece of land that no other lands to be possesseth or hath title unto, and he that so findeth it doth enter, this entry gaineth a property; this law seemeth to be derived from this text, terra dedit filiis hominum, which is to be understood, to those that will till and manure it, and so make it yield fruit; and that is he that entereth into it, where no man had it before. But this manner of gaining lands was in the first days, and is not now of use in England, for that by the conquest all the land of this nation was in the Conqueror's hands, and appropriated unto him, except re-or's and at proligious and church lands, and the lands in Kent, which by composition were left to the former owners, as the Conqueror found them, so that no man but the bishopricks, churches, and the men of Kent, can at this day make any greater title than from the conquest to any lands in England; and lands possessed without any such title are in the crown, and not in him that first entereth; as it is by land left by the sea, this land belongeth to the king, and not to him that hath the lands next adjoining, which was the ancient sea banks. This is to be understood of the inheritance of lands; viz. that the inheritance cannot be gained by the first entry. But an estate for another man's life by out-laws may, at this day, be gotten by entry. As a man called A. having land conveyed unto him for the life of B. dieth without making any estate of it there, whosoever first entereth into the land after the decease of A. getteth the property in the land for time of the continuance of the estate which was granted to A. for the life of B. which B. yet liveth and therefore the said land cannot revert till B. die. And to the heir of A. it cannot go, for that it is not any state of inheritance, but only an estate for another man's life; which is not descendable to the heir, except he be specially named in the grant: viz. to him and his heirs. As for the executors of A. they cannot have it, for it is not an estate testamentary, that it should go to the executors as goods and chattels should, so as in truth no man can entitle himself unto those lands; and therefore the law preferreth him that first entereth, and he is called occupans, and shall hold it during the life of B. but must pay the rent, perform the conditions, and do no waste. And he may by deed assign it to whom he please in his life time. But if he die before he assign it over, then it shal! Y


go again to whomsoever first entereth and holdeth. And so all the life of B. so often as it shall happen.

ther had died, or had not entered in the life of the
father, either by such entry or conveyance, then
the youngest brother should inherit the land tha
the father had, although it were a child by the
second wife, before any daughter by the first.
The third rule about descents. That land pur-
chased so by the party himself that dieth is to be
inherited; first, by the heirs of the father's side;
then, if he have none of that part, by Descent
the heirs of the mother's side. But
lands descended to him from his father or mother
are to go to that side only from which they came,
and not to the other side.

Likewise if any man doth wrongfully enter into another man's possession, and put the right owner of the freehold and inheritance from it, he thereby getteth the freehold and inheritance by disseisin, and may hold it against all men, but him that hath right, and his heirs, and is called a disseisor. Or if any one die seised of lands, and before his heir doth enter, one that hath no right doth enter into the lands, and holdeth them from the right heir, he is called an abator, and is lawful owner against all men but the right heir. Those rules of descent mentioned before are to And if such person abator, or disseisor (so as be understood of fee simples, and not of entailed the disseisor hath quiet possession five years next lands, and those rules are restrained by some after the disseisin) do continue their possession, particular customs of some particular customs of cur and die seised, and the land descend to his heir, places; as, namely, the custom of tain paces. they have gained the right to the possession of Kent, that every male of equal degree of childthe land against him that hath right till he recover hood, brotherhood, or kindred, shall inherit it by fit action real at the common law. And if equally, as daughters shall, being parceners; and it be not sued for at the common law within three-in many borough towns of England, and the cusscore years after the disseisin, or abatement committed, the right owner hath lost his right by that negligence. And if a man hath divers children, and the elder, being a bastard, doth enter into the land and enjoyeth it quietly during his life, and dieth thereof so seised, his heirs shall hold the land against all the lawful children and their issues.

Property of
Jan is by de-


Of descent,

tom alloweth the youngest son to inherit, and so the youngest daughter. The custom of Kent is called gavelkind. The custom of boroughs, burgh English.

And there is another note to be observed in feesimple inheritance, and that is, that every heir having fee-simple land or inheritance, be it by common law or by custom of either gavelkind or burgh English, is chargeable so far forth as the value thereof extendeth with the binding acts of the ancestors from whom the inheritance descendeth; and these acts are collateral encumbrances, and the reason of this charge is, qui sentit commodum, sentire debet et incommodum sive onus. As for example, if a man bind himself and his heirs in an obligation, or do covenant by writing for him and his heirs, or do grant an annuity for him and his heirs, or do make a warranty of land, binding him and his heirs to warranty, in all these cases the law chargeth the heir, after the death of the ancestor, with this obligation, covenant, annuity, and warranty, yet with these three cautions: first, that the party must by special name bind himself and his heirs, or covenant,

Every heir havbound by the

th binding acts of if he be named.

his ancestors

Property of lands by descent is, where a man hath lands of inheritance, and dieth, not disposing of them, but leaving it to go (as the law casteth it) upon the heir. This is called a descent of law, and upon whom the descent is to light, is the question. For which purpose the law of inheritance preferreth the first child before all others, and amongst children the male before the female, and amongst males the first born. If there be no children, then the brother; if no brothers, then sisters; if neither brothers nor sisters, then uncles; and for lack of uncles, aunts; if none of them, then cousins in the nearest degree of consanguinity, with these three rules of diversithree rules. ties. 1. That the eldest male shall solely inherit; but if it come to females, then they, being all in an equal degree of nearness, shall in-grant, and warrant for himself and his heirs, herit altogether, and are called parceners, and all otherwise the heir is not to be touched. Secondthey make but one heir to the ancestor. 2. That ly, that some action must be brought Dyer, 114. Brother or sis no brother nor sister of the half-blood against the heir whilst the land or other Plowd. ter of the half shall inherit to his brother or sister, but inheritance resteth in him unaliened away: for if as a child to his parents, as for ex- the ancestor die, and the heir, before an action ample: If a man have two wives, and be brought against him upon those bonds, coveby either wife a son, the eldest son nants or warranties, do alien away the land, then Overliving his father is to be preferred to the in- the heir is clean discharged of the burden, except heritance of the father, being fee-simple; but if the land was by fraud conveyed away of purpose he entereth and dieth without a child, the brother to prevent the suit intended against him. Thirdshall not be his heir, because he is of the half-ly, that no heir is further to be charged Dyer, 149. blood to him, but the uncle of the eldest brother than the value of the land descended Plowd or sister of the whole blood; yet if the eldest bro- unto him from the same ancestor that made the

blood shall not inherit to his brother or sister, but caly as a child to his pa rents.

Day & Pepp's


instrument of charge, and that land also not to be sold outright for the debt, but to be kept in extent, and at a yearly value, until the debt or damage be run out. Nevertheless if an heir that is sued upon such a debt of his ancestor do not deal clearly with the court when he is sued, that is, if he come not in immediately, and by way of confession set down the true quantity of his inheritance descended, and so submit himself therefore, as the law requireth, then that heir that otherwise demeaneth himself shall be charged of his own lands or goods, and of his money, for this deed of his ancestor. As for example; if a man bind himself and his heirs in an obligation of one hundred pounds, and dieth, leaving but ten acres of land to his heir, if his heir be sued upon the bond, and cometh in, and denieth that he hath any lands by descent, and it is found against him by the verdict that he hath ten acres, this heir shall now be charged by his false plea of his own lands, goods, and body, to pay the hundred pounds, although the ten acres be not worth ten pounds.

Heir charged for his false plea.

Property of lan is by escheat.

Property of lands by escheat is where the owner died seised of the lands in possession without child or other heir, thereby the land, for lack of other heir, is said to escheat to the lord of whom it is holden. This lack of heir happeneth principally in two cases: first where the lands' owner 2. Attainder of is a bastard. Secondly, where he is treason, felony. attainted of felony or treason. For neither can a bastard have any heir, except it be his own child, nor a man attainted of treason, although it be his own child.

Two canses of
es heat.
I. fastarly.

Attainder of trens entleth the king, though la da be not holden of him, other wise in attainderf felony, &e. for there the king shall base butan1.1m diem et The SL24.

holden of the crown immediately, or by mesne lords, is this.

The Conqueror

by night of con

quest, got all

the lands of the gave it, be still

realm into his hands, and as he

reserved rents and service

Knight's se

The Conqueror got, by right of conquest, all the land of the realm into his own hands, in demesne, taking from every man all estate, tenure, property, and liberty of the same, (except religious and church lands, and the land in Kent,) and still as he gave any of first instituted. it out of his own hand, he reserved some retribution of rents or services, or both, to him and to his heirs, which reservation is that which is called the tenure of land.

In which reservation he had four institutions, exceeding politic and suitable to the state of a conqueror.

vice in capite

The reserva.

tions in knight'

service tenure.
was four.
1. Marriage of


and female.




the wards, male
Horse for
3. Homage and
4. Primer
The policy of
in the reserva
constituted in
was to have the
wards both

the Conqueror,

tion of services

four particulars

marriage of his

1. Seeing his people to be part Normans, and part Saxons, the Normans he brought with him, the Saxons he found here, he bent himself to conjoin them by marriages in amity, and for that purpose ordains, that if those of his nobles, knights, and gentlemen to whom he gave great rewards of lands should die, leaving their heir within age, a male within twenty-one, and a female within fourteen years, and unmarried, then the king should have the bestowing of such heirs in marriage, in such a family,* and to such persons as he should think meet; which interest of marriage went still employed, and doth at this day in every tenure called knight's service.

male and fe male.

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The second was to the end that his Reservation people should still be conserved in warlike exercises, and able for his defence. When therefore he gave any good portion of lands, that might make the party of abilities or strength, he withal reserved this service: that that party and his heirs having such lands, should keep a horse of service continually, and serve upon him himself when the king went to wars, or else, having impediment to excuse his own person, should find another to serve in his place; which


Upon attainder of treason the king is to have the land, although he be not the lord of whom it is held, because it is a royal escheat. But for felony it is not so, for there the king is not to have the escheat, except the land be holden of him and yet where the land is not holden of him, the king is to have the land for a year and a day next ensuing the judg-service of horse and man is a part of that tenure ment of the attainder, with a liberty to commit called knight's service at this day. all manner of waste all that year in houses, gardens, ponds, lands, and woods.

In excheat two

observed. 1.

The manner of the attainder. All lands are balden of the Crown immedi atels or mediately by Jesne lords,

In these escheats two things are espethings are to be cially to be observed; the one is the The tenure. 2. tenure of the lands, because it directeth the person to whom the escheat belongeth, viz. the lord of the manor of whom the land is holden. 2. The manner of such attainder which drawConcerning the eth with it the escheat. Concerning the tenures of lands, it is to be understood, that all lands are holden of the crown, either mediately or immediately, and that the escheat appertaineth to the immediate lord, and not to the mediate. The reason why all land is

the reason.

teuure of lands.

But if the tenant himself be an infant, the king is to hold this land himself until he come to full age, finding him meat, drink, apparel, and other necessaries, and finding a horse and a man with the overplus to serve in the wars as the tenant himself should do if he were at full age.

But if this inheritance descend upon a woman, that cannot serve by her sex, then the king is not to have the lands, she being of fourteen years of age, because she is then able to have a husband that may do the service in person.

The third institution, that upon every 3. Institution of gift of land the king reserved a vow

the Conqueror

was, that his

Interest of marriage goeth employed in every tenure Ly knight's service.

tenants by

vow unto



faith, which "was called feal. ty.

and an oath to bind the party to his Anight's service faith and loyalty:* that vow was called he called homage, the oath fealty. Hoand make un mage is to be done kneeling, holding his hands between the knees of the lord, saying, in the French tongue, I become your man of life and limb, and of earthly honour. Fealty is to take an oath, upon a book, that he will be a faithful tenant to the king, and do his service, and pay his rents according to his tenure.

1. Homage.

2. Fealty.

4. Institution


to be paid by

the death of his

The fourth institution was, that for nizon of rec recognizont of the king's bounty by king's bounty, every heir succeeding his ancestor in every heir upon those knight's service lands, the king ancestor, which should have primer seisin of the lands, is one year's profit of the lands called which is one year's profit of the lands, primer seisin. and until this be paid the king is to have possession of the land, and then to restore it to the heir; which continueth at this day in use, and is the very cause of suing livery, and that as well where the heir hath been in ward as otherwise.

Knight's ser

a tenure de per. sona Regis Tenants by

were to pay re

age of every

one year's value of the lands so beid, ulla Repris. Grand serjearty. Petty serjeanty.

These beforementioned be the rights of the tenure called knight's service in capite, vice in capite is which is as much to say, as tenure de persona regis, and capite being the grind serjeanty chiefest part of the person, it is called lief at the full a tenure in capite, or in chief. And it beir, which was is also to be noted, that as this tenure in capite by knight's service generally was a great safety to the crown, so also the conqueror instituted other tenures in capite necessary to his estate; as, namely, he gave divers lands to be holden of him by some special service about his person, or by bearing some special office in his house, or in the field, which have knight's service and more in them, and these he called tenures by grand serjeanty. Also he provided, upon the first gift of lands, to save revenues by continual service of ploughing his land, repairing his houses, parks, pales, castles, and the like. And sometimes to a yearly provision of gloves, spurs, hawks, horses, hounds, and the like; which kind of reservations are called also tenures in chief, or in capite of the king, but they are not by knight's service, because they required no personal service, but such things as the tenants may hire another to do, or provide for his money. And this tenure is called a tenure

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The institution pite, and what into money rents.

of socage ca is now trad

by soccage in capite, the word socagium signifying the plough; howbeit, in this latter time, the service of ploughing the land is turned into money rent, and so of harvest works, for that the kings do not keep their demesne in their own hands as they were wont to do; yet what lands were de antiquo dominico coronæ, it well appeareth in the records of the Exchequer, called the Book of Doomsday. And the tenants by ancient demesne have many immunities and privileges at this day, that in ancient times were granted unto those tenants by the crown, the particulars whereof are too long to set down.

These tenures in capite, as well that by soccage as the others by knight's service, have this property, that the tenants cannot alien their lands without licence of the king; if he do, the king is to have a fine for the contempt, and may seize the land, and retain it until the fine be paid. And the reason is, because the king would have a liberty in the choice of his tenant, so Office of aliena that no man should presume to enter into those lands, and hold them (for which the king was to have those special services done him) without the king's leave. This license and fine, as it is now digested, is easy and of course.


A license of third art of com

alienation is the year's value of

the land node rately rated.

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There is an office called the office of alienation, where any man may have a license at a reasonable rate, that is, at the third part of one year's value of the land moderately rated. A tenant in cap. by knight's service or grand serjeanty, was restrained by ancient statute, that he should not give nor alien away more of his lands, than that with the rest he might be able to do the service due to the king; and this is now out of use.

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And it is to be noted, that all those Tenants by snethat hold lands by the tenure of soc- cage in capite cage in capite (although not by and pay primer knight's service) cannot alien without be in wand license; and they are to sue livery, and pay primer seisin, but not to be in ward for body or land.

for body or land.

How manors


By example and resemblance of the king's policy in these institutions of were at first tenures, the great men and gentlemen of this realm did the like so near as they could: as for example, when the king had Manors created given to any of them two thousand by great men is acres of land, this party purposing in cy of te in this place to make his dwelling, or, as pues då Tudthe old word is, his mansion house, or nere, the word

imitation of the

king in the in


Knight's ser

Vice tenure reserved to com1.00 persons.

Relief is five pound to be jaid by every enant by knight's service

his entrance reectively for

Le descended.

Court Baron,


his manor house, did devise how he might | out, and all through custom. Some copyholders make his land a complete habitation to supply are for lives, one, two, or three successively; him with all manner of necessaries, and for that and some inheritances from heir to heir by cuspurpose, he would give of the outtermost parts tom, and custom ruleth these estates wholly, of those two thousand acres one hundred or both for widow's estates, fines, harriots, forfeittwo hundred acres, or more or less, as ures, and all other things. he should think meet, to one of his most trusty servants, with some reservation of rent, to find a horse for the wars, and go with him when he went with the king to the wars, adding vow of homage, and the oath of fealty, wardship, marriage, and relief. This relief is to pay five pounds for every knight's fee, or after the rate for more or less at the entrance of every heir; which tenant, to his lord upon so created and placed, was and is to this day called a tenant by knight's service, and not by his own person, but of his manors; of these he might make as many as he would. Then this lord would provide that the land which he was to keep for his own use should be ploughed, and his harvest brought home, his house repaired, his park paled, and the reserved by the like: and for that end he would give some lesser parcels to sundry others, of twenty, thirty, forty, or fifty acres, reserving the service of ploughing a certain quantity (or so many days) of his land, and certain harvest works or days in the harvest to labour, or to repair the house, park, pale, or otherwise, or to give him, for his provision, capons, hens, pepper, commin, roses, gilliflowers, spurs, gloves, or the like; or to pay him a certain rent, and to be sworn to be his faithful tenant, which tenure was called a soccage tenure, and is so to this day, howbeit most of the plowing and harvest services are turned into money rents.

Socraze tenure


Relief of tenant

la secage, oue year's rent and no wardship or other profit

of the tenant.

Suit to the court


the lord inci pure of the free

dent to the te


Manors being in this sort made at the first, reason was that the lord of with the use of the manor should hold a court, which is no more than to assemble his tenants together at a time by him to be appointed; in which court he was to be informed, by oath of his tenants, of all such duties, rents, reliefs, wardships, copyholds, or the like, that had happened unto him. which information is called a presentment, and then his bailiff to seize and distrain for those duties, if they were denied or withholden, which is called a court baron: and herein a man may sue for any debt or trespass under forty pounds value, and the freeholders are to judge of the cause upon proof produced upon both sides. And therefore the freeholders of these manors, as incident to their tenures, do hold by suit of court, which is to come to the court, and there to judge between party and party in those petty actions; and also to inform the lord of duties, of rents, and services unpaid to him from his tenants. By this course it is discerned who be the lords of lands, such as if the tenants die without heir, or be attainted of felony or treason, shall have the land by escheat. Now concerning what attainders shall give the escheat to the land, it is ders shall give to be noted, that it must either be by judgment of death given in some court of record, against the felon found guilty by verdict, or confession of the felony, or it must be by outlawry of him.

What attain

the escheat to the lord.

Attainders. 1. By

judgment. 2. confession. 3. give the lands

By verdict or

By outlawry

to the lord.

Of an attainder

The outlawry groweth in this sort: a man is indicted for felony, being not by outlastry. in hold, so as he cannot be brought in person to appear, and to be tried, insomuch that process of capias is therefore awarded to the sheriff, who not finding him, returneth non est inventus in Balliva

The tenants in soccage at the death of every tenant were to pay relief, which was not as knight's service is, five apon the dying pounds a knight's fee. But it was, and so is still, one year's rent of the land, and no wardship or other profit to the lord. The remainder of the two thousand acres he kept to himself, which he used to manure by his bond-mea; and thereupon another capias is awarded to men, and appointed them at the courts of his manor how they should hold it, making an entry of it into the roll of the remembrances of the acts of his court, yet still in the lord's power to take it away; and therefore, they were called Lature by copy of tenants at will, by copy of court roll; being in truth bondmen at the beginning, but having obtained freedom of their persons, and gained a custom by use of occupying their lands, they now are called copyholders, and are so privileged that the lord cannot put them

Villenage or te

court roll.

Knight's service tenure created by the lord is not a tenure by knight's service of the person of the lord, but of his manor. † Aid money and escuage money is ikewise due unto the lords of their tenants, vide N. 3. fol. 82 and 83.

VOL. III.-33

the sheriff, who likewise, not finding him, maketh the same return; then a writ called an exigent is directed to the sheriff, commanding him to proclaim him in his county court, five several court days, to yield his body, which if the sheriff do, and the party yield not his body, he is said by the default to be outlawed, the coroners there adjudging him outlawed, and the sheriff making the return of the proclamations and of the judgment of the coroners upon the back side of the writ. This is an attainder of felony, whereupon the offender doth forfeit his lands, by an escheat, to the lord of whom they are holden.

But note, that a man found guilty of felony by verdict or confession, and

Y 2

Prayer of c

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