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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 causes of escheat.
Attainder of treason entitleth the king, though lands
be not holden
wise in attain.
der of felony, &c. for there the king shall have but anmum diem et vestum.
Upon attainder of treason the king is to have the land, although he be not the lord of whom it is held, because it
holden of the crown immediately, or by mesne lords, is this.
The Conqueror by right of conthe lands of the gave it, he still
quest, got all
realin into his hands, and as he
reserved rents and service
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 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.
night's se first instituted.
vice in capite
tions in knight's
service tenure. was four.
1. Marriage of
service. fealty. seisin.
the wards, male Horse for 3 Homage and 4. Primer The policy for the reservaconstituted in was to have the wards both
tion of services
marriage of his male and female.
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. The second was to the end that his 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
of him, other 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 all manner of waste all that year in houses, gardens, ponds, lands, and woods.
In escheat two
The manner of
All lands are holden of the Crown immedi ately or mediately by mesne lords, the reason.
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 attainder. 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
tenure of lands.
called knight's service at this day.
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
was, that his
*Interest of marriage goeth employed in every tenure by knight's service.
Vow unto loy
called homage, and make unto
ham oath of his
was called feal. ty.
The institution occae in ca it is now turned
pite, and what
into money rents.
and an oath to bind the party to his by soccage in capite, the word socagium knight's service faith and loyalty:* that vow was signifying the plough; howbeit, in this alty which he called homage, the oath fealty. Ho- | latter time, the service of ploughing the 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 & 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 times were granted unto those tenants by the crown, the particulars whereof are too long to set down.
Was for recog
nizon of the king's bounty, to be paid by
every heir upon
the death of his
is one year's profit of the lands called
The fourth institution was, that for recognizont of the king's bounty by heir succeeding his ancestor in every those knight's service lands, the king should have primer seisin of the lands, 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.
a tenure de per. sona Regis. Tenants by
were to pay re lief at the full age of every
heir, which was
one year's value
held, ultra Re-
These beforementioned be the rights of the tenure called knight's service in capite, vice in capites which is as much to say, as tenure de persona regis, and capite being the grand serjeanty chiefest part of the person, it is called a tenure in capite, or in chief. And it 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 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 have 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
* Aid money to make the king's eldest son a knight, or to marry his eldest daughter, is likewise due to his majesty from every one of his tenants in knight's service, that hold by a whole fee, twenty shillings, and from every tenant in soccage if his land be worth twenty pounds per annum, twenty shil
lings, vide N. 3. fol. 82.
Escuage was likewise due unto the king from his tenant by knight's service; when his majesty made a voyage royal to war against another nation, those of his tenants that did not attend him there for forty days, with horse and furniture fit for service, were to be assessed in a certain sum by act of
parliament, to be paid unto his majesty; which assessment is cailed escuage.
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 alienathat 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 part of one
alienation is the year's value of
the land moderately rated.
Aid a sum of money rateably
levied according to the proportion of the lands.
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.
night's service eldest son knight, or to
make the king's
And to this tenure by knight's ser- Every tenant by vice in chief was incident, that the king should have a certain sum of money, called aid, due to be rateably levied amongst all those tenants proportion- daughter. ably to his lands, to make his eldest son a knignt, or to marry his eldest daughter.
marry his el'est
seisin, and not
And it is to be noted, that all those Tenants by socthat hold lands by the tenure of soc- care se aty cage in capite (although not by and pay primer knight's service) cannot alien without to be in ward license; and they are to sue livery, and pay primer seisin, but not to be in body or land.
for body or land.
served to com
Relief is five pound to be paid by every tenant by knight's service
his entrance re
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, asures, and all other things. vice tenure re 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 spectively for day called a tenant by knight's service, fee descended. 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.
Relief of tenant
year's rent and
no wardship or other profit
of the tenant.
Suit to the court
the lord inci nure of the free
dent to the to
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 escheat to
ders shall give the lord. At judgment. 2. confession. 3. give the lands
tainders. 1. By
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 outlawry. in hold, so as he cannot be brought in person tu 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 in soccage, one of every tenant were to pay relief, which was not as knight's service is, five upon 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 nure by copy of tenants at will, by copy of court roll; court roll. being in truth bondmen at the begin-default to be outlawed, the coroners there adjudgning, 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
Attainder in fe
lony or treason fession, or out
by verdict, con
from the time
der of outlawry,
1. That men attainted* of felony or treason, by verdict or confession, do forfeit all the lands they had at the time of their offence committed, and the all they had king or the lord, whosoever of them of the offence hath the escheat or forfeiture, shall come in and avoid all leases, statutes, or conveyances done by the offender, at any time since the offence done. And so is the law clear also if a man be attainted for treason by outlawry; but upon attainder of felony by outlawry it hath been much doubted by the law books whether the lord's title by escheat shall relate back to the time of the offence done, or only to the date or test of the writ of exigent for proclamation, whereupon he is outlawed; howbeit at this day it is ruled, that it shall reach back to the time of his fact, for goods, chattels, and debts, the king's title shall look no further back for the forethan to those goods, the party attainted and chartels. by verdict or confession had at the time of the verdict and confession given or made, and in outlawries at the time of the exigent, as well in treasons as felonies: wherein it is to be observed, that upon the parties first apprehension, The king's offi the king's officers are to seize all the cers upon the goods and chattels, and preserve them hards together, dispending only so much out and chattels. of them as is fit for the sustentation of the person in prison, without any wasting, or disposing them until conviction, and then the property of them is in the crown, and not before.
And so it is upon an attainotherwise it is by verdict, conlawry, as to
in the attainder fession, and out
their relation ture of goods
A person at
be to the
There can be no
restitution in blood without act of parlia ment, but a pardon enableth chase, and the after shall inhe
a man to pur heir begotten rit those lands
It is also to be noted, that persons tainted may attainted of felony or treason have no purchase, but it capacity in them to take, obtain, or king's use. purchase, save only to the use of the king, until the party be pardoned. Yet the party giveth not back his lands or goods without a special patent of restitution, which cannot restore the blood without an act of parliament. So if a man have a son, and then is attainted of felony or treason, and pardoned, and purchaseth lands, and then hath issue another son, and dieth, the son he had before he had his pardon, although he be his eldest son, and the patent have the words of restitution to his lands, shall not inherit, but his second son shall inherit them, and not the first; because the blood is corrupted by the attainder, and cannot be restored by patent alone, but by act of parliament. And if a man have two sons, and the eldest is attainted in the life of his father, and dieth without issue, the father living, the second son shall inherit the father's lands; but if the eldest son have any issue, though he die in the life of his father, then neither the second son, nor the issue of the eldest, shall inherit the father's lands, but the father Of the relation of attainders, as to the forfeiture of lands and goods with the diversity.
shall there be accounted to die without heir, and the land shall escheat, whether the eldest son have issue or not afterward or before, though he be pardoned after the death of his father.
the means be of leases for
be a house, if not, then to some part of
Property of lands by conveyance is first distributed into estates for years, for life, in tail, and fee-monly there is a note written on the back side of simple.
Property of land by
2. In tail. 3. For life.
4. For years.
Lease for life
not be sold for debt but ex
by the sheriff tended yearly.
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.
the lease, with the names of those witnesses THESE estates are created by word, who were present at the time of the livery of veyance divided by writing, or by record. For estates seisin made. This estate is not saleinto, 1. Estates of years, which are commonly called able by the sheriff for debt, but the land leases for years, they are thus made; is to be extended for a yearly value, to where the owner of the land agreeth | satisfy the debt. It is not forfeitable 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 exforfeited by at- ceptions, conditions, and covenants, as the parties can agree on. They are
Leases for years
Leases are to be
1. In treason. 2. Felony.
3. Premunire. called chattels real, and are not inheritable by the heirs, but go to the exe
4. By killing himself.
6. For flying.
6 Standing out, cutors and administrators, and be saleable for debts in the life of the owner, or in the executors' or administrators'
or mute, or refusing to be tried by the country.
7. By convic.
Extents upon stat. staple, merchant, elegit, wardship of body and
tels, and forfeitable in the 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, lands are chat 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.
an estate may
A lease for years, or for life, may be of estate tails, 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.
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.
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 witness of it.