Imágenes de páginas
PDF
EPUB

Attainder

berdict,

lan ry, teth

[ocr errors]

committed.

lle that stand. cth mute for feite holands, excepl sur trea SOD.

He that killeth

his cha tels.

dirity,

in stainder

,

their relation

Flying for fe. Jonny a Orfeit. ure of goods.

ture gods

He that yielleth

the

his goods.

aj stad

seize his gods

praying his clergy, and thereupon reading as a 1. That men attainted* of felony or clerk, and so burnt in the hand and discharged, is treason, by verdict or confession, do not ustrezsen not attainted, because he, by his clergy, prevent forfeit all the lands they had at the time for at eth ihe judgment of death, and is called a clerk of their offence committed, and the all the board convict who loseth not his lands, but all his king or the lord, whosoever of them of the odetce goods, chattels, leases and debts.

hath the escheat or forfeiture, shall So a man indicted, that will not an- come in and avoid all leases, statutes, or convesswer, nor put himself upon trial, al- ances done by the offender, at any time since the though he be by this to have judgment offence done. And so is the law clear also if a

of pressing to death, yet he doth for- man be attainted for treason by outlawry; but feit no lands, but goods, chattels, leases, and upon attainder of felony by outlawry it hath been debts, except his offence be treason, and then he much doubted by the law books whether the forfeiteth his lands to the crown.

lord's title by escheat shall relate back to the So a man that killeth himself shall time of the offence done, or only to the date or imelt forfeit not lose his lands, but his goods, chat- test of the writ of exigent for proclama- And so it is

tels, leases, and debts. So of those tion, whereupon he is outlawed; how- of Indian tha: kill others in their own defence, or by mis- beit at this day it is ruled, that it shall furtune.

reach back to the time of his fact, but by perdist, care A man that being pursued for felony, for goods, chattels, and debts, the line and flieth for it, loseth his goods for king's title shall look no further back for them to the

his flying, although he return and is than to those goods, the party attainted and chatteds tried, and found not guilty of the fact.

by verdict or confession had at the time of the So a man indicted of felony, if he verdict and confession given or made, and in outhis tund yield not his body to the sheriff until lawries at the time of the exigent, as well in treafi Tony Porieitein after the exigent of proclamation is sons as felonies: wherein it is to be observed,

awarded against him, this man doth that upon the parties first apprehension, The bingi i. forfeit all his goods for his long stay, although he the king's officers are to seize all the error in the he found not guilty of the felony; but none is goods and chattels, and preserve them to be aitainted to lose his lands, but only such as have together, dispending only so much out and challeàs. judgments of death, by trial upon verdict, or their of them as is fit for the sustentation of the person own confession, or that they be by judgment of in prison, without any wasting, or disposing them the coroners outlawed as before.

until conviction, and then the property of them is Besides the escheats of lands to the in the crown, and not before. lords of whom they be holden for lack It is also to be noted, that persons faites tag

of heirs, by attainder for felony (which attainted of felony or treason have no es bat only do hold place in fee-simple lands,) there are capacity in them to take, obtain, or also forfeiture of lands to the crown by attainder purchase, save only to the use of the king, until

of treason; as namely, if one that hath the party be pardoned. Yet the party giveth not

entailed lands commit treason, he for- back his lands or goods without a spefeiteth the profits of the lands for his life to the cial patent of restitution, which can find crown, but not to the lord.

not restore the blood without an act of act of parliaAnd if a man, having an estate for parliament. So if a man have a son, parteneratief life of himself or of another, commit and then is attainted of felony or trea- chuse, and be treason or felony, the whole estate is son, and pardoned, and purchaseth after stall ite

forfeited to the crown, but no escheat lands, and then hath issue another son, to the lord.

and dieth, the son he had before he had his parBut a copyhold for fee-simple, or for life, is don, although he be his eldest son, and the patent forfeited to the lord and not to the crown; and if have the words of restitution to his lands, shall it be entailed, the lord is to have it during the not inherit, but his second son shall inherit them, life of the offender only, and then his heir is to and not the first; because the blood is corrupted Have it.

by the attainder, and cannot be restored by patent The custom of Kent is, that gavelkind land is alone, but by act of parliament. And if a man not forfeitable nor escheatable for felony, for they have two sons, and the eldest is attainted in the have an old saying; the father to the bough, and life of his father, and dieth without issue, the the son to the plough.

father living, the second son shall inherit the If the husband was attainted, the wife father's lands; but if the eldest son have any

was to lose her thirds in cases of felony issue, though he die in the life of his father, then the fourth of bo and treason, but yet she is no offender; neither the second son, nor the issue of the eldest,

but at this day, it is holden by statute shall inherit the father's lands, but the father law that she loseth them not for the husband's

* of the relation of attainders, as to the forfeiture of lands felony. The relation of these forfeits are these.

and goods with the diversity,

[blocks in formation]

fore mentioned

years.

Property of la con.

Lease for life

by

2. Iail. 3. For life 4. For years.

Laves for years

executors

A man that

ty charter

be attainted.

Leases are to be

tander 1. Tu treason. 2. Felony.

4. By killing
hin:-11.
6. For fixing,

or , or re

Or estate fails

shall there be accounted to die without heir, and be a house, if not, then to some part of the means hothe land shall escheat, whether the eldest son the land, and there he expresseth, that of lenses for have issue or not afterward or before, though he he doth grant unto the taker, called the be pardoned after the death of his father.

lessee, for term of his life: and in seisin thereof,

he delivereth to him a turf, twig, or ring of the Property of lands by conveyance is first distributed door; and if the lease be by writing, then com

into estates for years, for life, in tail, and fee- monly there is a note written on the back side of simple.

the lease, * with the names of those witnesses These estates are created by word, who were present at the time of the livery of beyince itider by writing, or by record. For estates seisin made. This estate is not salefiel. Es a:cs of years, which are commonly called able by the sheriff for debt, but the land not to be scola leases for years, they are thus made; is to be extended for a yearly value, to for detetutes

lended yearly. where the owner of the land agreeth satisfy the debt. It is not forfeitable with the other by word of mouth, that the other by outlawry, except in cases of felony, nor by shall have, hold, and enjoy the land, to take the any of the means before mentioned, of leases for profits thereof for a time certain of years, months, years; saving in an attainder for, and felony, weeks, or days, agreed between them, and this is treason, premunire, and then only to the crown,

called a lease parol ; such a lease may not to the lords by escheat. de verandere be made by writing pole, or indented And though a nobleman or other Dat to the heirs. of devise, grant, and to farm let, and so have liberty, by charter, to have all bath bona fe lion. also by fine of record; but whether any rent be felon's goods, yet a tenant holding for all not have reserved or no, it is not material. Unto these term of life, being attainted of felony, leaser ir life

leases there may be annexed such ex- doth forfeit unto the king, and not to based by at. ceptions, conditions, and covenants, as this nobleman.

the parties can agree on. They are If a man have an estate in lands for another 3. Presunire called chattels real, and are not inhe- man's life, and dieth, this land cannot

Occupant. ritable by the heirs, but go to the exe- go to his heir, nor to his executors, but and outcutors and administrators, and be sale to the party that first entereth, and he is called

able for debts in the life of the owner, an occupant as before hath been declared.

or in the executors' or administrators' A lease for years, or for life, may be Petty hands by writs of execution upon made also by fine of record, or bargain andebate muay

statutes, recognisances, judgments of and sale, or covenant, to stand seised be limited. it illevur license debts or damages. They be also for- upon good considerations of marriage, or blood, feitable to the crown by outlawry, by attainder the reasons whereof are hereafter expressed. for treason, felony, or premunire, killing himself, Entails of lands are created by a gift, with flying for felony, although not guilty of the fact, livery and seisin to a man, and to the heirs of his standing out or refusing to be tried by the coun- body; this word (body) making the entail may try, by conviction of felony, by verdict without be demonstrated and restrained to the males or judgment, petty larceny, or going beyond the sea females, heirs of their two bodies, or of the body without license.

of either of them, or of the body of the grandfather They are forfeitable to the crown, in or father. like manner as leases for years, or Entails of lands began by a statute

interest gotten in other men's lands, made in Edward the First's time, by means made, been obat- by extending for deht upon judgment which also they are so much strength- anderes in tail

in any court of record, stat. merchant, ened, as that the tenant in tail could not strengthened stat. staple, recognisances; which be- put away the land from the heir by any by 'doy Sanitat de

ing upon statutes are called tenants by act of conveyance or attainder, nor let der. stat. merchant, or staple, the other tenants by it, nor encumber it, longer than his own life. elegit, and by wardship of body and lands, for But the inconvenience thereof was the great in all these are called chattels real, and go to the great, for, by that means, the land har en egen executors and administrators, and not to the heirs, being so sure tied upon the heir, as that thereof

. and are saleable and forfeitable as leases for his father could not put it from him, it made tha

son to be disobedient, negligent, and wasteful, Leases for lives are also called free- often marrying without the father's consent, and ho forfeivabler holds, they may also be made by word to grow insolent in vice, knowing that there could

or writing, there must be livery and be no check of disinheriting him. It also made seisin* given at the making of the lease, the owners of the land less fearful to commit

whom we call the lessor, who cometh murders, felonies, treasons, and manslaughters; zen den beroak for to the door, back side, or garden, if it for that they knew none of these acts could hurt

What livery of seisin is, and how it is requisite to every * Endorsement of livery upon the back of the deed and wit. estate for life.

tried bs the
entry.
7. Bv convic

.
Larceny
9. Goghe.
Volthe sea

Extente upon s'2!. 52pir merchant ele. go, rartship of vandt

By the stat, of
West. I.

[ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

ness of it.

The

perpetuities.

the crown te ceived thereby.

The stat, 4 1.7.

bar
by fine.

26 H. 8.

32 II. S.
33 H. S.
13 & 39 Eliz.
Entails two
privileges

restrain by these

zard the und

able for felony,

oblbnuty posten rily.

able for the debt of the party after his death. Prem,

the heir of his inheritance. It hindered men that, unkind suits, setting all that kimared at jars, had entailed lands, that they could not make the some taking one part, some another, and the prinbest of their lands by fine and improvement, for cipal parties wasting their time and money in that none upon so uncertain an estate, as for term suits of law. So that in the end they of his own life, would give him a fine of any are both constrained by necessity to ni l.ces of those value, nor lay any great stock upon the land that join both in a sale of the land, or a might yield rent improved.

great part of it, to pay their debts, occasioned The prejudice

Lastly, those entails did defraud the through their suits. And if the chiefest of the crown and many subjects of their debts; family, for any good purpose of well seating himn.

for that the land was not liable longer self, by selling that which lieth far off is to buy than his own lifetime, which caused that the that which is near, or for the advancement of his king could not safely commit any office of account daughters or younger sons should have reasonable to such, whose lands were entailed, nor other men cause to sell, this perpetuity, if it should hold trust them with loan of money.

good, restraineth him. And more than that, where These inconveniences were all remedied by many are owners of inheritance of land, not en.

acts of Parliament; as namely, by acts tailed may, during the minority of his eldest son, and 32 Hostale of Parliament later than the acts of appoint the profits to go to the advancement of the

entails, made 4 H. VII. 32 H. VIII. younger sons and daughters, and pay debts; by A tenant in tail may disinherit his son by a fine entails and perpetuities the owners of these lands with proclamation, and may, by that means also, cannot do it, but they must suffer the whole to make it subject to his debts and sales.

descend to his eldest son, and so to come to the By a statute inade, 26 H. VIII. a crown by wardship all the time of his infancy. tenant in tail doth forfeit his lands for Wherefore, seeing the dangerous Quære stether treason; and by another act of Parlia- times and untowardly heirs, they might jeten

ment, 32 H. VIII. he may make leases prevent those mischiefs of undoing lies propietat in Is Not forfeit. good against his heir for twenty-one their houses by conveying the land from alistas en todo 2. years, or three lives; so that it be not such heirs, if they were not tied to the internetu

of his chief houses, lands, or demesne, stake by those perpetuities, and re

or any lease in reversion, nor less rent strained from forfeiting to the crown, and dispoone da para mas reserved than the tenants have paid sing it to their own or to their children's good: tihento for most part of twenty-one years before, therefore it is worthy of consideration, whether it Serie is nor having any manner of discharge for be better for the subject and sovereign to have

doing wastes and spoils : by a statute the lands secured to inen's names and bloods by

made 33 H. VIII. tenants of entailed perpetuities, with all the inconveniences abovelands are liable to the king's debts by extent, and mentioned, or to be in hazard of undoing his by a statute made 13 and 39 Eliz. they are sale-house by unthrifty posterity. able for the arrearages upon his account for his The last and greatest estate of lands office. So that now it resteth, that entailed lands is fee-simple, and beyond this there is an area inte have two privileges only, which be these. First, none of the former for lives, years, or not to be forfeited for felonies. Secondly, not to entails; but beyond them is fee-simple. mited uses an be extended for debts after the parties' death, For it is the greatest, last, and utter- fet except the entails be cut off hy fine and recovery. most degree of estates in land; there.

But it is to be noted, that since these fore he that maketh a lease for life, or a gift in

notable statutes, and remedies provided tail, may appoint a remainder when he maketh whichach an ad: by statutes, do dock entails, there is another for life or in tail, or to a third in fee-sim

start up a device called perpetuity, ple; but after a fee-simple he can limit no other which is an entail with an addition of a proviso estate. And if a man do not dispose of the fee. conditional, tied to his estate, not to put away the simple by way of remainder, when he maketh the land from his next heir; and if he do, to forfeit gift in tail, or for lives, then the fee-simple resteth his own estate. Which perpetuities, if they in himself as a reversion. The differshould stand, would bring in all the former incon-ence between a reversion and a remain better and veniences subject to entails, that were cut off by der is this: The remainder is always evenerite the former mentioned statutes, and far greater: a succeeding estate, appointed upon the early for, by the perpetuity, if he that is in possession gifts of a precedent estate, at the time start away never so little, as in making a lease, or when the precedent is appointed. But the rever. selling a little quillet, forgetting after two or three sion is an estate left in the giver, after a particu

descents, as often they do, how they lar estate made by him for years, life, or entail; te woul's ing are tied, the next heir must enter, where the remainder is made with the particular

who, peradventure, is his son, his bro- estates, then it must be done hy deeds in writing, ther, uncle, or kinsman, and this raiseth with livery and seisin, and cannot be by words.

the land from

heir

tale, and that his next heir must enter.

The last and

in land is see
simple
A renainder
Canoa te !

sis.ple.

9

of the new de. vice called a perpetuity,

is en

dition.

a

The difference

ed by word.

These perpelui

nall the former "crveniences Wesales taile.

Atturnment must bor hud to the grant of the Terension.

[ocr errors]

Comnion

the cryers of the

The tenant pot
compllable
to altura but
where be re-
Yerion is grant

by fixe,

Julement for

against te

cover much

The common

envayed six manuer of

1. Ryeollinent. 2. By tine. 3. By recovery. 4. By use. 5. By covenant 6. By will

A recovery lar

tailall re

a

Rutindments

What 1 fine is,

And if the giver will dispose of the warranted unto him, and pray that I. H. may be
reversion after it remaineth in himself, called in to defend the title which I. H. is one of

he is to do it by writing, and not by the cryers of the Common Pleas, and
word, and the tenant is to have notice of it, and is called the common voucher. This chierrafone
to atturn it, which is to give his assent by word, I. H. shall appear and make as if he couri.
or paying rent, or the like; and except the tenant would defend it, but shall pray a day to be as-
will thus atturn, the party to whom the reversion signed hiin in his matter of defence, which being
is granted cannot have the reversion, neither can granted hiin, at the day he maketh default, and

he compel him by any law to atturn, thereupon the court is to give judgment against
except the grant of the reversion be by him, which cannot be for him to lose his lands,
fine; and then he may hy writ pro- because he hath it not, but the party that he hath

vided for that purpose: and if he do not sold it to, hath that who vouched him to war-
purchase that writ, yet by the fine the reversion rant it.
shall pass; and the tenant shall pay no rent, Therefore the demandant who hath
except he will himself, nor be punished for any no defence made against it, must have deciderunt laut
wastes in houses, woods, &c., unless it be granted judgment to have the land against him nant in lail.
by bargain and sale by indenture enrolled. These that he sued, (who is called the tenant,) and the
fee-simple estates lie open to all perils of forfeit- tenant is to have judgment against I. H. to re-
ures, extents, encumbrances, and sales.

cover in value so much land of his, Judzment for
Lands are conveyed by these six means: first, where, in truth, he hath none, nor never been to me
* Land may be by feofsment,* which is, where by deed will. And by this device, grounded latest on value of

lands are given to one and his heirs, upon the strict principles of law, the voucher.
and livery and seisin made according first tenant loseth the land, and hath nothing for
to the form and effect of the deed; if a it; but it is by his own agreement, for assurance
lesser estate than fee-siinple be given, to him that bought it.

and livery of seisin made, it is not This recovery barreth entails, and all
called a feoflinent, except the fee-simple be con- remainders and reversions that should rehan a cheat
yeyed, but is otherwise called a lease for life or take place after the entails, saving memorandre-
gift entail as abovementioned.

where the king is giver of the entail, thereupon. A fine is a real agreement, beginning and keepeth the reversion to himself, then neither During the thus, Hæc est finalis concordia, &c. This the heir, nor the remainder, nor reversion is bar

is done before the king's judges in the red by the recovery. Court of Common Pleas, concerning lands that The reason why the heirs, remainders a man should have from another to him and his , and reversions are thus barred is be- a common reca heirs, or to him for his life, or to him and the heirs cause in strict law the recompense ad- big revela males of his body, or for years certain, whereupon judged against the cryer

that was
rent may be reserved, but no condition or cove- vouchee, is to go in succession of estate as the
nants. This fine is a record of great credit, and land should have done, and then it was not rea-
upon this fine are four proclamations made openly son to allow the heir the liberty to keep the land
in the Common Pleas; that is, in cvery term one itself and also to have recompense; and, there-

for four terms together: and if any man, fore, he loseth the land, and is to trust to the re-
having right to the same, make not his compense.
claim within five years after the procla- This sleight was first invented when
mations ended, he loseth his right, for entails fell out to be so inconvenient as conveniences

ever, except he be an infant, a woman is before declared, so that men made tail brought in covert, a madman, or beyond the seas, and then no conscience to cut them off if they ries, which are his right is saved; so that he claim within five could find law for it. And now by use, mon conveyo years after the death of her husband's full age, those recoveries are become common surances for recovery of his wits, or return from beyond the assurances against entails, remainders,

This fine is called a feoffment and reversions, and are the greatest security purinent of record. of record, because that it includeth all chasers have for their moneys; for a fine will bar that the feoffinent doth, and worketh further of his the heir in tail, and not the remainder, nor reown nature, and barreth entails peremptorily, version, but a common recovery will bar them all. whether the heir doth claim within five years or Upon feoffments and recoveries, the not, if he claim by him that levied the fine. estate doth settle as the use and intent ments, and re

Recoveries are where, for assurances of the parties is declared by word or estate doth set

of lands, the parties do agree, that one writing, before the act was done; As the intent of shall begin an action real against the other, as for example; they make a writing that though he had good right to the land, and the one of them shall levy a fine, make a feoffmeni, other shall not enter into defence against it, but or suffer a common recovery to the other, but tho allege that he bought the land of I. H. who had use and intent is, that one should have it tor his

[ocr errors]

ed henbj.

The reason why

[merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

partus.

[ocr errors]

A ovenant to

Lee eth

as a traD

sale to a

the use of wife chili of me,

Bargains, sales, and covenants to stand seised In 1 use, are all grounded upon One slalule.

eih to marry.

What a use is.

[ocr errors]

out Cuisier

[ocr errors]

Hefore 27 H. &

gain and sales

mely frue But in Chao cery.

life, and after his decease, a stranger to have it in allowing these provisions, which equity and tail, and then a third in fee-simple. In this case honesty is the use. And the use being created ir the land settleth in an estate according to the use this sort, the statute of 27 H. VIII. beforemen. and intent declared. And that by reason of the tioned, conveyeth the estate of the land, as the statute made 27 H. VIII. conveying the land in use is appointed. possession to him that hath interest in the use, And so this covenant to stand seised or intent of the fine, feoffinent, or recovery, ac- to uses is at this day, since the said sta- sand person that cording to the use and intent of the par ies. tute, a conveyance of land, and with no enrotteet,

Upon this statute is likewise ground. this difference from a bargain and sale; aventure de ed the fourth and fifth of the six con- in that this needeth no enrolment as a veyances, viz. bargains, sales, cove- bargain and sale doth, nor needeth it to offee te mere

nants, to stand seised to uses; for this be in writing indented, as bargain and statute, wheresoever it findeth a use, conjoineth sale must: and if the party to whose use he the possession to it, and turneth it into like quali- agreeth to stand seised of the land, be not wife, ty of estate, condition, rent, and the like as the or child, cousin, or one that he meaneth to marry, use hath.

then will no use rise, and so no conveyance; for The use is but the equity and honesty although the law alloweth such weighty consi

to hold the land in conscientia boni viri. derations of marriage and blood to raise uses, yet As for example; I and you agree that I shall doth it not admit so trifling considerations as of give you money for your land, and you shall acquaintance, schooling, services, or the like. make me assurance of it. I pay you the money, But where a man maketh an estate of his land but you made me no assurance of it. Here, to others by fine, feoffment, or recovery, Upwon a fize, te although the estate of the land be still in you, he may then appoint the use to whom ook tereta yet the equity and honesty to have it is with me; he listeth, without respect of marriage, and this equity is called the use, upon which I kindred, or other things; for in that belong had no remedy but in Chancery, until this statute case his own will and declaration toon of blood me

was made of 27 H. VIII. and now this guideth the equity of the estate. It is a there was no re- statute conjoineth and containeth the not so when he maketh no estate, but or covenaul.

land to him that hath the use. I for agreeth to stand seised, nor when he hath taken

my money paid to you have the land any thing, as in the cases of bargain, and sale, itself, without any other conveyance from you, and covenant, to stand to uses. and it is called a bargain and sale.

The last of the six conveyances is a
But the parliament that made that will in writing, which course of con- ace of land by

statute did foresee that it would be veyance was first ordained by statute the payment of mischievous that men's lands should made 32 H. VIII. before which statute no man a derdindented so suddenly, upon the payment of a might give land by will, except it were in a bo

little money, be conveyed from them, rough town, where there was an especial custom peradventure in an alehouse or a tavern, upon that men might give their lands by will; as in strainable advantages, did therefore gravely pro- London, and many other places. vide another act in the same parliament, that the The not giving of land by will was The not dis. land, upon payment of this money, should not thought to be a defect at common law; Dorothea laudo pass away, except there were a writing indented that men in wars, or suddenly falling dought to be a

made between the said two parties, and sick, had not power to dispose of their comeca las. exenlein the said writing also within six months lands, except they could make a feofsment, or levy and incorporate enrolled in some of the courts at West- a fine, or suffer a recovery, which lack of time they dit use to minster, or in the sessions rolls in the would not permit; and for men to do it by these

shire where the land lieth, unless it be in means, when they could not undo it again, was cities or corporate towns where they did use to hard: besides, even to the last hour of death, enrol deeds, and there the statute extendeth not. men's minds might alter upon further proofs of

The fifth conveyance of a fine is a their children or kindred, or increase of children to stand seised conveyance to stand seised to uses. It or debt, or defect of servants, or friends, to be

is in this sort; a man that hath a wife altered. and children, brethren, and kinsfolk, may by For which cause it was reason that

writing under his hand and seal, agree the law should permit him to reserve to to hanno per tines that for their or any of their preferment the last instant the disposing of his entire house for on opening he will stand seised of his lands to their lands, and to give him means to dispose deri

uses, either for life in tail or fee, so as it, which seeing it did not fitly serve, fara a
he shall see cause; upon which agree- men used this device.
ment in writing there ariseth an equity They conveyed their full estates of mate declare

or honesty, that the land should go their lands, in their good health, to according to those agreements ; nature and reason friends in trust, properly called feoffees in trusi,

Of the contien

The stal of 27 H. 9. doth not p's lapt upon

[ocr errors]

.

by will

defret at

[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small]
« AnteriorContinuar »