Imágenes de páginas

proceeding of justices of cir. cuits in their circuits.

hold in

of property of

We execution

gained by entry

cern or the
taking of nisi

All lands in

the Conquero

priated to him

quest of Eng.



of bim, except

and church

of the

Land left by the

the king.

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 to another, by these four manner of ways; if they come not, they very seldom or never appear

1. By Entry. The nabrer of upon the first writ, and upon their de.

2. By Descent. fault there is another writ* returned to

3. By Escheat. the sheriff, commanding him to distrain

4. Most usually by Conveyance. The course the them by their lands to appear at a cer- 1. Property by entry is, where a man the researching in tain day appointed by the writ, which findeth a piece of land that no other landets be of cocom is the next term after, Nisi Prius justi- possesseth or hath title unto, and he

ciarii nostri ad assizas capiendas vene- that so findeth it doth enter, this entry gaineth a

rint, &c. of which words the writ is property; this law seemeth to be derived from called a nisi prius, and the judges of the circuit this text, terra dedit filiis hominum, which is to of that county in that vacation and mean time be understood, to those that will till and manure before the day of appearance appointed for the jury it, and so make it yield fruit; and that is he that above, bere by their commission of Nisi Prius entereth into it, where no man had it before. have authority to take the appearance of the jury But this manner of gaining lands was in the first in the county before them, and there to hear the days, and is not now of use in England, for that witnesses and proofs on both sides concerning by the conquest all the land of this nathe issue of fact, and to take the verdict of the tion was in the Conqueror's hands, fingland wire jury, and against the day they should have ap- and appropriated unto him, except re- ore and a pro peared above, to return the verdict read in the ligious and church lands, and the lands u cu the con

court above, which return is called a in Kent, which by composition were law, and heid posten.

left to the former owners, as the Con- 1. Religious And upon this verdict clearing the matter in queror found them, so that no man but latus. 2. "The fact, one way or other, the judges above give the bishopricks, churches, and the men Deo of Kent. judgment for the party for whom the verdict is of Kent, can at this day make any sea triongettu to found, and for such damages and costs as the jury greater title than from the conquest to do assess.

any lands in England; and lands possessed withBy those trials called Nisi Prius, the juries and out any such title are in the crown, and not in the parties are eased much of the charge they him that first entereth ; as it is by land left by the should be put to, by coming to London with their sea, this land belongeth to the king, and not to evidences and witnesses, and the courts of West- him that hath the lands next adjoining, which minster are eased of much trouble they should was the ancient sea banks. This is to be underhave if all the juries for trials should appear and stood of the inheritance of lands; viz. that the try their causes in those courts; for those courts inheritance cannot be gained by the first entry. above have little leisure now; though the juries But an estate for another man's life by out-law's come not up, yet in matters of great weight, or may, at this day, be gotten by entry. As a man where the title is intricate or difficult, the judges called A. having land conveyed unto him for the above upon information to them, do retain those life of B. dieth without making any estate of it causes to be tried there, and the juries do at this there, whosoever first entereth into the land after day in such causes come to the bar at Westminster. the decease of A. getteth the property in the land

The fifth commission that the judges for time of the continuance of the estate which sa como son in their circuits do sit by, is the com- was granted to A. for the life of B. which B. yet

mission of the peace in every county liveth and therefore the said land cannot revert of their circuit. And all the justices of the peace, till B. die. And to the heir of A. it cannot go, having no lawful impediment, are bound to be for that it is not any state of inheritance, but only present at the assizes to attend the judges, as oc- an estate for another man's life; which is not decasion shall call out; if any make default, the scendable to the heir, except he be specially The justices of judges may set a fine upon him at their named in the grant: viz. to him and his heirs. the sheer starelo pleasure and discretions.

Also the As for the executors of A. they cannot have it, sheriff in every shire through the cir- for it is not an estate testamentary, that it should

cuit is to attend in person, or by a suf- go to the executors as goods and chattels should, ficient deputy allowed by the judges, all that time so as in truth no man can entitle himself unto they be within the county, and the judges may those lands; and therefore the law preferreth him fine him if he fail, or for negligence or misbe- that first entereth, and he is called occuhaviour in his office before them; and the judges pans, and shall hold it during the life above may also fine the sheriff for not returning of B. but must pay the rent, perform the condi. or not sufficient returning of writs before them. tions, and do no waste. he may by de

assign it to whom he please in his life time. * Distringas.

But if he die before he assign it over, then it shal!


5. Commission

of the peace.

peace and

attend be jutges in their coualy.



go again to whomsoever first entereth and holdeth. , ther had died, or had not entered in the life of he And so all the life of B. so often as it shall father, either by such entry or conveyance, then happen.

the youngest brother should inherit the land tha Likewise if any man doth wrongfully enter the father had, although it were a child by the into another man's possession, and put the right second wife, before any daughter by the first. owner of the freehold and inheritance from it, he 'The third rule about descents. That land purthereby getteth the freehold and inheritance by chased so by the party himself that dieth is to be disseisin, and may hold it against all men, but inherited ; first, by the heirs of the father's side; him that hath right, and his heirs, and is called a then, if he have none of that part, by disseisor. Or if any one die seised of lands, and the heirs of the mother's side. But before his heir doth enter, one that hath no right lands descended to him from his father or mother doth enter into the lands, and holdeth them from are to go to that side only from which they came, the right heir, he is called an abator, and is and not to the other side. 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 soine after the disseisin) do continue their possession, particular customs of some particular cextrem et cet and die seised, and the land descend to his heir, places; as, namely, the custom of tain parte they have gained the right to the possession of Kent, that every male of equal degree of child. the 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 cus. score years after the disseisin, or abateinent com- tom alloweth the youngest son to inherit, and so mitted, the right owner hath lost his right by that the youngest daughter. The custom of kent is negligence. And if a man hath divers children, called gavelkind. The custom of boroughs, burgh and the elder, being a bastard, doth enter into the English. land and enjoyeth it quietly during his life, and And there is another note to be observed in feedieth thereof so seised, his heirs shall hold the simple inheritance, and that is, that every heir land against all the lawful children and their having fee-simple land or inheritance, be it by issues.

common law or by custom of either gavelkind or Property of lands by descent is, burgh English, is chargeable so far forth as the Property lanle by de. where a man hath lands of inherit- value thereof extendeth with the binding acts of

ance, and dieth, not disposing of them, the ancestors from whom the inheritance debut leaving it to go (as the law casteth it) upon scendeth ; and these acts are collateral encumthe heir. This is called a descent of law, and brances, and the reason of this charge is, qui senti! upon whoin the descent is to light, is the ques. commodum, senlire debet et incommodum sive tion. For which purpose the law of inheritance As for example, if a man bind himself Every heir harpreferreth the first child before all others, and and his heirs in an obligation, or do para se is amongst children the male before the female, and covenant by writing for him and his bitine tool amongst males the first born. If there be no heirs, or do grant an annuity for him if he be burned childrent, then the brother; if no brothers, then and his heirs, or do make a warranty of land, sisters; if neither brothers nor sisters, then uncles; binding him and his heirs to warranty, in all and for lack of uncles, aunts; if none of them, these cases the law chargeth the heir, after the then cousins in the nearest degree of consangui- death of the ancestor, with this obligation, cove

nity, with these three rules of diversi. nant, annuity, and warranty, yet with these three

ties. 1. That the eldest male shall cautions: first, that the party must by special solely inherit; but if it come to females, then they, name bind himself and his heirs, or covenant, 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 Ploud. here the hindi 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, cove

by either wife a son, the eldest son nants or warranties, do alien away the land, then verliving 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 lie entereth and dieth without a child, the brother to prevent the suit intended against him. Third. shall not be his heir, because he is of the half- ly, that no heir is further to be charged Wood to him, but the uncle of the eldest brother than the value of the land descended Plovila or sister of the whole blood; yet if the eldest bro- unto him from the saine ancestor that made the


brurity the


Of descant, three rules,

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Llnod shall not inherit to his brother or sister, but bly as a child to his pa. Tents.

Dyer, 149


quert, kot all


into his hands, and as he paveil, le stall reerived rents and service

vice in capire

Heir chareed ter his false plea.

The reserva

. was four. 1. Marriage of

and female.







Property of han's by cscheat.

and Diale.


Two cases of

instrument of charge, and that land also not to be holden of the crown immediately, or by mesne Day & Pepp's

sold outright for the debt, but to be lurds, is this.

kept in extent, and at a yearly value, The Conqueror got, by right of con- The Conqueroa until the debt or damage be run out. Neverthe- quest, all the land of the realm into his beha less if an heir that is sued upon such a debt of own hands, in demesne, taking from the date of the his ancestor do not deal clearly with the court every man all estate, tenure, property, when he is sued, that is, if he come not in imme- and liberty of the same, (except rediately, and by way of confession set down the ligious and church lands, and the land Kitezhel's a true quantity of his inheritance descended, and so in Kent,) and still as he gave any of first installed. submit himself therefore, as the law requireth, then it out of his own hand, he reserved some retributhat heir that otherwise demeaneth hijnself shall tion of rents or services, or both, to him and to

be charged of his own lands or goods, his heirs, which reservation is that which is called and of his money, for this deed of his the tenure of land.

ancestor. As for example; if a man In which reservation he had four inbind himself and his heirs in an obligation of one stitutions, exceeding politic and suita- termice benieten hundred pounds, and dieth, leaving but ten acres ble to the state of a conqueror. of land to his heir, if his heir be sued upon the 1. Seeing his people to be part Nor the cards male bond, and cometh in, and denieth that he hath mans, and part Saxons, the Normans getirse for any lands by descent, and it is found against him he brought with him, the Saxons hellomage and by the verdict that he hath ten acres, this heir found here, he bent himself to conjoin sebrimer shall now be charged by his false plea of his own them by marriages in amity, and for the per la cerere lands, goods, and body, to pay the hundred that purpose ordains, that if those of in the reservar pounds, although the ten acres be not worth ten his nobles, knights, and gentlemen to court recordar pounds.

whom he gave great rewards of lands was to liave the Property of lands by escheat is where should die, leaving their heir within the thesabelle the owner died seised of the lands in age, a male within twenty-one, and a

possession without child or other heir, female within fourteen years, and unmarried, thereby the land, for lack of other heir, is said to then the king should have the bestowing of such escheat to the lord of whom it is holden. This heirs in marriage, in such a family,* and to such

lack of heir happeneth principally in persons as he should think meet; which interest

two cases: first where the lands' owner of marriage went still employed, and doth at this 2. Alant of is a bastard. Secondly, where he is day in every tenure called knight's service.

attainted of felony or treason. For The second was to the end that his neither can a bastard have any heir, except it be people should still be conserved in war- should kepant his own child, nor a man attainted of treason, like exercises, and able for his defence. horse or service, although it be his own child.

When therefore he gave any good por- when the king Upon attainder of treason the king is tion of lands, that might make the par- kichina pare to have the land, although he be not ty of abilities or strength, he withal edilen verplicht the lord of whom it is held, because it reserved this service: that that party is a royal escheat. But for felony it is and his heirs having such lands, should keep a not so, for there the king is not to have horse of service continually, and serve upon him the escheat, except the land be holden himself when the king went to wars, or else, of him: and yet where the land is not having impediment to excuse his own person,

holden of him, the king is to have the should find another to serve in his place; which 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, gar- But if the tenant himself be an infant, the king dens, ponds, lands, and woods.

is to hold this land himself until he come to full In these escheats two things are espe- age, finding hin meat, drink, apparel, and other thi et are ti be cially to be observed; the one is the necessaries, and finding a horse and a man with The tenure 2 tenure of the lands, because it directeth the overplus to serve in the wars as the tenant

the person to whom the escheat be- himself should do if he were at full age.
longeth, viz. the lord of the manor of But if this inheritance descend upon a woman,
whom the land is holden. 2. The that cannot serve by her sex, then the king is not

manner of such attainder which draw- to have the lands, she being of fourteen years of Cancerogethe eth with it the escheat. Concerning age, because she is then able to have a husband

the tenures of lands, it is to be under that may do the service in person. stood, that all lands are holden of the crown, The third institution, that upon every 3. Institution of either mediately or immediately, and that the gift of land the king reserved a vow escheat appertaineth to the immediate lord, and

Interest of marriage goeih employed in every ienure Ly not to the mediate. The reason why all land is knight's service.


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tenants by

vow loy

, and what

called bomage, and unto


faith, which
was called feal.
1. Homage.
2. Fealty.

4. Institution

of the king's bounty, to be paid by

death of

year's profit of the lands called



Knight's ser.

A license of

third me

a de per. tona Rytt. Tenants by

the land sode rately rated

to pay

age of every


and an oath to bind the party to his , by soccage in capite, the word socagium The institution bought service faith and loyalty :* that vow was signifying the plough; howbeit, in this point of song online hoch ger called homage, the oath fealty. Ho- latter time, the service of ploughing the line tortyr ad on mikere og mage is to be done kneeling, holding land is turned into money rent, and so

his hands between the knees of the of harvest works, for that the kings do not keep lord, saying, in the French tongue, I their demesne in their own hands as they were

become your man of life and limb, and wont to do; yet what lands were de antiquo domiof earthly honour. Fealty is to take an oath, upon nico coronæ, it well appeareth in the records of the à book, that he will be a faithful tenant to the Exchequer, called the Book of Doomsday. And king, and do his service, and pay his rents accord- the tenants by ancient demesne have many immuing to his tenure.

nities and privileges at this day, that in ancient The fourth institution was, that for times were granted unto those tenants by the bizne or conge recognizont of the king's bounty by crown, the particulars whereof are too long to set

every heir succeeding his ancestor in down. verschien those knight's service lands, the king These tenures in capite, as well that by soccage ancese pratich should have primer seisin of the lands, as the others by knight's service, have this pro

which is one year's profit of the lands, perty, that the tenants cannot alien their lands primer seisin. and until this be paid the king is to without licence of the king; if he do, the king is have possession of the land, and then to restore it to have a fine for the contempt, and may seize the to the heir; which continueth at this day in use, land, and retain it until the fine be paid. And and is the very cause of suing livery, and that as the reason is, because the king would have a well where the heir hath been in ward as other-liberty in the choice of his tenant, so Office of alienia wise.

that no man should presume to enter These beforementioned be the rights of the into those lands, and hold them (for which the

tenure called knight's service in capite, king was to have those special services ritenute care neces which is as much to say, as tenure de done him) without the king's leave. Plientams of the

persona regis, and capite being the This license and fine, as it is now di- misalue of keretricante chiefest part of the person, it is called gested, is easy and of course. lief case vie full a tenure in capite, or in chief. And it There is an office called the office of alienation, betr, which was is also to be noted, that as this tenure where any man may have a license at Ait a sum of

in capite by knight's service generally a reasonable rate, that is, at the third peeney really was a great safety to the crown, so also part of one year's value of the land mo- in to the pro the conqueror instituted other tenures derately rated. A tenant in cap. by launds.

in capite necessary to his estate; as, knight's service or grand serjeanty, was restrained namely, he gave divers lands to be holden of him by ancient statute, that he should not give nor by some special service about his person, or by alien away more of his lands, than that with the bearing some special office in his house, or in the rest he might be able to do the service due to the field, which have knight's service and more in king; and this is now out of use. ther, and these he called tenures by grand ser- And to this tenure by knight's serjeanty. Also he provided, upon the first gift of vice in chief was incident, that the king bahay lands, to save revenues by continual service of should have a certain sum of money, under the king ploughing his land, repairing his houses, parks, called aid, due to be rateably levied knight out to pales, castles, and the like. And sometimes to a amongst all those tenants proportion- daugh'er. yearly provision of gloves, spurs, hawks, horses, ably to his lands, to make his eldest son a knignt, hounds, and the like; which kind of reservations or to marry his eldest daughter. are called also tenures in chief, or in capite of the And it is to be noted, that all those king, b at they are not by knight's service, because that hold lands by the tenure of soc- concert de ople they required no personal service, but such things cage in capite (although not by the one as the tenants may hire another to do, or provide knight's service) cannot alien without every one for his money. And this tenure is called a tenure license; and they are to sue livery,

and pay primer seisin, but not to be in ward for * Aid money to malr the king's eldest son a knight, or to body or land. arry his eldest daughter, is likewise due to his majesty from By example and resemblance of the every one of his tenants in knight's service, that hold by a

king's policy in these institutions of here at brat whole see, twenty shillings, and from every tenant in soccage if his land be worth twenty pounds per annum, twenty shil. tenures, the great men and gentlemen lings ride N. 3. fol. 82.

of this realm did the like so near as they could : 1 Escuage was likewise die unto the king from his tenant by knight's service; when his majesty made a voyage royal as for example, when the king fiad 10 war against another nation, those of his tenants that did given to any of them two thousand by great men is not attend him there for forty days, with horse and furniture acres of land, this party purposing in bele ili for service, were to be assessed in a certain sum by act of this place to make his dwelling, or, as baton hinta parliament, to be paid unto his majesty; which assessment is raised escuage.

the old word is, his mansion house, or nere, the word

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lis 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 estutes wholly, of those two thousand acres one hundred or both for widow's estates, fines, harriots, forfeii

two hundred acres, or more or less, as ures, and all other things.
he should think meet, to one of his most Manors being in this sort made at

trusty servants, with some reservation the first, reason was that the lord of with the use ot of rent, to find a horse for the wars, and go with the manor should hold a court, which him when he went with the king to the wars, is no more than to assemble his tenants together adding vow of homage, and the oath of fealty, at a time by him to be appointed; in which court wardship, marriage, and relief. This relief is to he was to be informed, by oath of his tenants, of

pay five pounds for every knight's fee, all such duties, rents, reliefs, wardships, copyor after the rate for more or less at the holds, or the like, that had happened unto him.

entrance of every heir; which tenant,* which information is called a presentment, and bere so created and placed, was and is to this then his bailiff to seize and distrain for those

day called a tenant by knight's service, duties, if they were denied or withholden, which bedecended. and not by his own person, but of his is called a court baron: and herein a man may manors; of these he might make as many as he sue for any debt or trespass under forty pounds would. Then this lord would provide that the value, and the freeholders are to judge land which he was to keep for his own use should of the cause upon proof produced upon of the bordic be ploughed, and his harvest brought home, his both sides. And therefore the free- pure of the free

house repaired, his park paled, and the holders of these manors, as incident to ned by the like: and for that end he would give their tenures, do hold by suit of court, which is

some lesser parcels to sundry others, to come to the court, and there to judge between of twenty, thirty, forty, or fifty acres, reserving party and party in those petty actions; and also the service of ploughing a certain quantity (or so to inform the lord of duties, of rents, and services many days) of his land, and certain harvest unpaid to him from his tenants. By this course works or days in the harvest to labour, or to re- it is discerned who be the lords of lands, such as pair the house, park, pale, or otherwise, or to if the tenants die without heir, or be attainted of give him, for his provision, capons, hens, pepper, felony or treason, shall have the land by escheat. eommin, roses, gilliflowers, spurs, gloves, or the Now concerning what attainders like; or to pay him a certain rent, and to be shall give the escheat to the land, it is ders shall eise sworn to be his faithful tenant, which tenure was to be noted, that it must either be by the fort. As called a soccage tenure, and is so to this day, judgment of death given in some court judgment. 2 how beit most of the plowing and harvest services of record, against the felon found guilty contession. 3. are turned into money rents.

by verdict, or confession of the felony, give the lands The tenants in soccage at the death or it must be by outlawry of him. of every tenant were to pay relief, which The outlawry groweth in this sort: Of an attainder

was not as knight's service is, five a man is indicted for felony, being not by cutlawry. gron se lying pounds a knight's fee.f But it was, in hold, so as he cannot be brought in person 10

and so is still, one year's rent of the appear, and to be tried, insomuch that process of land, and no wardship or other profit to the lord. capias is therefore awarded to the sheriff

, who not The remainder of the two thousand acres he kept finding him, returneth non est inventus in Balliva 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 the sheriff, who likewise, not finding him, maketh manor how they should hold it, making an entry the same return; then a writ called an exigent is of it into the roll of the remembrances of the acts directed to the sheriff, commanding him to proof his court, yet still in the lord's power to take claim him in his county court, five several court

itaway; and therefore, they were called days, to yield his body, which if the sheriff do, Liste des entry of tenants at will, by copy of court roll; and the party yield not his body, he is said by the

being in truth bondmen at the begin- default to be outlawed, the coroners there adjudgning, but having obtained freedom of their per- ing him outlawed, and the sheriff making the resons, and gained a custom by use of occupying turn of the proclamations and of the judgment of their lands, they now are called copyholders, and the coroners upon the back side of the writ. This are so privileged that the lord cannot put them is an attainder of felony, whereupon the offender

doth forfeit his lands, by an escheat, to the lord * Knight's service tenure created by the lord is not a tenure of whom they are holden. by knight's service of the person of the lord, but of his manor. But note, that a man found guilty of prayer of come

Aidi mcney and escuage money is ikewise due unto the lords of their tenants, vide N. 3. fol. 82 and 83.

felony by verdict or confession, and by. TOL. III.-33

Y 2

What attain

the to

tain ters. 1. By

By or



Relief op tegant

yoge, ove year's ren ad 2 war stor



Wearge or to

Onurt roll

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