Knight's service tenure re. served to conimon persons.

Relief is five pound to be paid by every tenant by knight's service

to his lord upon spectively for

his entrance re

fee descended.

*

Court Baron,

it.

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, 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.

Soccage tenure

lord.

Relief of tenant in soccage, one year's rent and no wardship or other profit

of the tenant.

Suit to the court

of

the lord incinure of the free

dent to the te

holders.

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 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.

The outlawry groweth in this sort

What attain

the escheat to

ders shall give the lord. Atjudgment. 2. confession. 3. give the lands

tainders. 1. By

By verdict or

By outlawry

to the lord.

The tenants in soccage at the death of every tenant were to pay relief, which of an attainder was not as knight's service is, five a man is indicted for felony, being not by outlawry. upon the dying pounds a knight's fee. But it was, in hold, so as he cannot be brought in person to 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 it away; and therefore, they were called days, to yield his body, which if the sheriff do, nure by copy 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 of whom they are holden.

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

Besides the escheats of lands to the lords of whom they be holden for lack of heirs, by attainder for felony (which only do hold place in fee-simple lands,) there are also forfeiture of lands to the crown by attainder of treason; as namely, if one that hath entailed lands commit treason, he forfeiteth the profits of the lands for his life to the crown, but not to the lord.

And if a man, having an estate for life of himself or of another, commit lony, there shall treason or felony, the whole estate is forfeited to the crown, but no escheat

Property of lands by conveyance is first distributed into estates for years, for life, in tail, and feesimple.

Property of

the means be of leases for

fore mentioned

shall there be accounted to die without heir, and | be a house, if not, then to some part of the land shall escheat, whether the eldest son the land, and there he expresseth, that have issue or not afterward or before, though he he doth grant unto the taker, called the years. 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 door; and if the lease be by writing, then commonly there is a note written on the back side of the lease, with the names of those witnesses who were present at the time of the livery of seisin made. This estate is not saleable by the sheriff for debt, but the land is to be extended for a yearly value, to satisfy the debt. It is not forfeitable by outlawry, except in cases of felony, nor by any of the means before mentioned, of leases for years; saving in an attainder for, and felony, treason, premunire, and then only to the crown, not to the lords by escheat.

in fees.

2. In tail. 3. For life.

4. For years.

THESE estates are created by word, land by covided by writing, or by record. For estates into, 1. Es'ates of years, which are commonly called leases for years, they are thus made; where the owner of the land agreeth with the other by word of mouth, that the other shall have, hold, and enjoy the land, to take the profits thereof for a time certain of years, months, weeks, or days, agreed between them, and this is called a lease parol; such a lease may they go to the be made by writing pole, or indented not to the heirs. of devise, grant, and to farm let, and so also by fine of record; but whether any rent be reserved or no, it is not material. Unto these leases there may be annexed such exceptions, conditions, and covenants, as the parties can agree on. They are called chattels real, and are not inheritable by the heirs, but go to the exe

Leases for years

executors and

Leases are to be
forfeited by at-
tainder.

1. In treason.
2. Felony.
3. Premunire.
4. By killing
himself.

5. For flying.

or mute, or re-
fusing to be

tried by the
country.
7. By convic.

tion. S. Petty

larceny.

9. Going beyond the sea

6. Standing out, cutors and administrators, and be saleable for debts in the life of the owner, or in the executors' or administrators' hands by writs of execution upon statutes, recognisances, judgments of without license. debts or damages. They be also forfeitable to the crown by outlawry, by attainder for treason, felony, or premunire, killing himself, flying for felony, although not guilty of the fact, standing out or refusing to be tried by the country, by conviction of felony, by verdict without judgment, petty larceny, or going beyond the sea without license.

Extents upon stat. staple, merchant, elegit, wardship of body and

lands are chat. feitable in the

tels, and for

same manner as leases for years are.

They are forfeitable to the crown, in like manner as leases for years, or interest gotten in other men's lands, by extending for debt upon judgment in any court of record, stat. merchant, stat. staple, recognisances; which being upon statutes are called tenants by stat. merchant, or staple, the other tenants by elegit, and by wardship of body and lands, for all these are called chattels real, and go to the executors and administrators, and not to the heirs, and are saleable and forfeitable as leases for years are.

Lease for life is

Leases for lives are also called freenot forfeitable holds, they may also be made by word or writing, there must be livery and seisin* given at the making of the lease, whom we call the lessor, who cometh and it is not for to the door, back side, or garden, if it

by outlawry except in cases of felony or premunire, and then to the king, and not to the lord by escheat;

feited by any of

* What livery of seisin is, and how it is requisite to every estate for life.

Occupant.

If a man have an estate in lands for another man's life, and dieth, this land cannot go to his heir, nor to his executors, but to the party that first entereth, and he is called an occupant as before hath been declared. A lease for years, or for life, may be made also by fine of record, or bargain and how such and sale, or covenant, to stand seised be limited. upon good considerations of marriage, or blood, the reasons whereof are hereafter expressed.

Of estate tails,

an estate may

Entails of lands are created by a gift, with livery and seisin to a man, and to the heirs of his body; this word (body) making the entail may be demonstrated and restrained to the males or females, heirs of their two bodies, or of the body of either of them, or of the body of the grandfather or father.

By the stat. of

West. 1. made

Ed. i. time,

estates in tail were so

Entails of lands began by a statute made in Edward the First's time, by which also they are so much strengthened, as that the tenant in tail could not put away the land from the heir by any by any attain act of conveyance or attainder, nor let der. it, nor encumber it, longer than his own life.

strengthened

that they were not forfeitable

that ensued

But the inconvenience thereof was The great ingreat, for, by that means, the land convenience being so sure tied upon the heir, as that thereof. his father could not put it from him, it made the son to be disobedient, negligent, and wasteful, often marrying without the father's consent, and to grow insolent in vice, knowing that there coulu be no check of disinheriting him. It also made the owners of the land less fearful to commit murders, felonies, treasons, and manslaughters; for that they knew none of these acts could hurt * Endorsement of livery upon the back of the deed, and wit ness of it.

26 H. 8.

32 H. S.

33 H. 8.
13 & 39 Eliz.
Entails two
privileges.

1. Not forfeit-
2. Not extend:

able for felony.

able for the debts of the party after his death. Proviso,

the land

his next heir.
If he do, to for-

tate, and

his next heir

must enter.

The inconve

perpetuities.

unkind suits, setting all that kinȧred at jars,
some taking one part, some another, and the prin-
cipal parties wasting their time and money in
suits of law. So that in the end they
are both constrained by necessity to niences of those
join both in a sale of the land, or a
great part of it, to pay their debts, occasioned
through their suits. And if the chiefest of the
family, for any good purpose of well seating him-
self, by selling that which lieth far off is to buy
that which is near, or for the advancement of his
daughters or younger sons should have reasonable
cause to sell, this perpetuity, if it should hold
good, restraineth him. And more than that, where
many are owners of inheritance of land, not en-
tailed may, during the minority of his eldest son,
appoint the profits to go to the advancement of the
younger sons and daughters, and pay debts; by
entails and perpetuities the owners of these lands
cannot do it, but they must suffer the whole to
descend to his eldest son, and so to come to the
crown by wardship all the time of his infancy.
Wherefore, seeing the dangerous Queere whether
times and untowardly heirs, they might
prevent those mischiefs of undoing
their houses by conveying the land from
such heirs, if they were not tied to the
stake by those perpetuities, and re- rity.
strained from forfeiting to the crown, and dispo-
sing it to their own or to their children's good:
therefore it is worthy of consideration, whether it
be better for the subject and sovereign to have
the lands secured to men's names and bloods by
perpetuities, with all the inconveniences above-
mentioned, or to be in hazard of undoing his
house by unthrifty posterity.

strain men by these perpetui ations, or to ha ing of houses by

zard the undo.

unthrifty poste.

The last and in land is feesimple. A remainder

cannot be li estate in fee

By a statute made, 26 H. VIII. a tenant in tail doth forfeit his lands for treason; and by another act of Parliament, 32 H. VIII. he may make leases good against his heir for twenty-one years, or three lives; so that it be not of his chief houses, lands, or demesne, or any lease in reversion, nor less rent not to put away reserved than the tenants have paid most part of twenty-one years before, feit his own es- nor having any manner of discharge for doing wastes and spoils: by a statute made 33 H. VIII. tenants of entailed lands are liable to the king's debts by extent, and by a statute made 13 and 39 Eliz. they are saleable 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 fec-simple, and beyond this there is greatest estate 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. be extended for debts after the parties' death, For it is the greatest, last, and utterexcept the entails be cut off by fine and recovery. most degree of estates in land; thereBut 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 which is an en: by statutes, do dock entails, there is another for life or in tail, or to a third in fee-simstart 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 feeconditional, 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-between a reveniences subject to entails, that were cut off by der is this: The remainder is always reversion on the former mentioned statutes, and far greater: a succeeding estate, appointed upon the cannot be grant 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 reverselling a little quillet, forgetting after two or three sion is an estate left in the giver, after a particudescents, as often they do, how they lar estate made by him for years, life, or entail; ties would bring are tied, the next heir must enter, where the remainder is made with the particular inconveniences who, peradventure, is his son, his bro-estates, then it must be done by deeds in writing, ther, uncle, or kinsman, and this raiseth with livery and seisin, and cannot be by words.

Of the new device called a perpetuity,

dition.

'These perpetui

in all the former

of estates tails.

simple.

The difference

and a

ed by word.

Atturnment

the grant of the reversion.

The tenant not compellable

And if the giver will dispose of the must be had to reversion after it remaineth in himself, he is to do it by writing, and not by word, and the tenant is to have notice of it, and to atturn it, which is to give his assent by word, or paying rent, or the like; and except the tenant will thus atturn, the party to whom the reversion is granted cannot have the reversion, neither can he compel him by any law to atturn, except the grant of the reversion be by fine; and then he may by writ provided for that purpose: and if he do not purchase that writ, yet by the fine the reversion shall pass; and the tenant shall pay no rent, except he will himself, nor be punished for any wastes in houses, woods, &c., unless it be granted by bargain and sale by indenture enrolled. These fee-simple estates lie open to all perils of forfeitures, extents, encumbrances, and sales.

to atturn but where the reversion is granted by fine.

conveyed six manner of ways.

1. By feoffment. 2. By fine.

may be

the cryers of the

warranted unto him, and pray that I. H.
called in to defend the title which I. H. is one of
the cryers of the Common Pleas, and Common
is called the common voucher. This voucher of one
I. H. shall appear and make as if he court.
would defend it, but shall pray a day to be as-
signed him in his matter of defence, which being
granted him, at the day he maketh default, and
thereupon the court is to give judgment against
him, which cannot be for him to lose his lands,
because he hath it not, but the party that he hath
sold it to, hath that who vouched him to war-
rant it.

Judgment for

the demandant nant in tail.

against the te

Therefore the demandant who hath no defence made against it, must have judgment to have the land against him that he sued, (who is called the tenant,) and the tenant is to have judgment against I. H. to recover in value so much land of his, Judgment for where, in truth, he hath none, nor never will. And by this device, grounded upon the strict principles of law, the

tenant to reland in value of voucher.

cover so much

the common

Lands are conveyed by these six means: first, *Lands may be by feoffment,* which is, where by deed lands are given to one and his heirs, 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-simple be given, to him that bought it. 6. By will. and livery of seisin made, it is not called a feoffment, except the fee-simple be conveyed, but is otherwise called a lease for life or gift entail as abovementioned.

3. By recovery. 4. By use.

5. By covenant.

What a fine is, may be conveyed hereby.

Five years non

A fine is a real agreement, beginning and how lands thus, Hæc est finalis concordia, &c. This is done before the king's judges in the Court of Common Pleas, concerning lands that a man should have from another to him and his heirs, or to him for his life, or to him and the heirs males of his body, or for years certain, whereupon rent may be reserved, but no condition or covenants. This fine is a record of great credit, and upon this fine are four proclamations made openly in the Common Pleas; that is, in every term one for four terms together: and if any man, claim barreth having right to the same, make not his claim within five years after the proclamations ended, he loseth his right, for ever, except he be an infant, a woman covert, a madman, or beyond the seas, and then his right is saved; so that he claim within five years after the death of her husband's full age, recovery of his wits, or return from beyond the This fine is called a feoffment ment of record. of record, because that it includeth all that the feoffment doth, and worketh further of his own nature, and barreth entails peremptorily, whether the heir doth claim within five years or not, if he claim by him that levied the fine.

not,

1. An infant.
2. Feme covert.
3. Madman.
4. Beyond sea.

Fine is a feoff.

What recoveries are.

seas.

Recoveries are where, for assurances of lands, the parties do agree, that one shall begin an action real against the other, as though he had good right to the land, and the other shall not enter into defence against it, but allege that he bought the land of I. H. who had

The reason why the heirs, remainders The reason why and reversions are thus barred is be- a common recocause in strict law the recompense ad- those in remainjudged against the cryer that was vouchee, is to go in succession of estate as the land should have done, and then it was not reason to allow the heir the liberty to keep the land itself and also to have recompense; and, therefore, he loseth the land, and is to trust to the recompense.

This sleight was first invented when entails fell out to be so inconvenient as is before declared, so that men made no conscience to cut them off if they could find law for it. And now by use, those recoveries are become common assurances against entails, remainders, and reversions, and are the greatest security purchasers have for their moneys; for a fine will bar the heir in tail, and not the remainder, nor reversion, but a common recovery will bar them all. Upon feoffments and recoveries, the estate doth settle as the use and intent of the parties is declared by word or writing, before the act was done; As for example; they make a writing that one of them shall levy a fine, make a feoffment, or suffer a common recovery to the other, but the use and intent is, that one should have it for his

Upon fines, feoff. ments, and recoveries, the estate doth setthe intent of

tle according to the parties.