go again to whomsoever first entereth and holdeth. | ther had died, or had not entered in the life of the And so all the life of B. so often as it shall happen. Likewise if any man doth wrongfully enter into another man's possession, and put the right owner of the freehold and inheritance from it, he thereby getteth the freehold and inheritance by disseisin, and may hold it against all men, but him that hath right, and his heirs, and is called a disseisor. Or if any one die seised of lands, and before his heir doth enter, one that hath no right doth enter into the lands, and holdeth them from the right heir, he is called an abator, and is lawful owner against all men but the right heir. And if such person abator, or disseisor (so as the disseisor hath quiet possession five years next after the disseisin) do continue their possession, and die seised, and the land descend to his heir, they have gained the right to the possession of the land against him that hath right till he recover it by fit action real at the common law. And if it be not sued for at the common law within threescore years after the disseisin, or abatement committed, the right owner hath lost his right by that negligence. And if a man hath divers children, and the elder, being a bastard, doth enter into the land and enjoyeth it quietly during his life, and dieth thereof so seised, his heirs shall hold the land against all the lawful children and their issues. Property of lands by de. scent. father, either by such entry or conveyance, then But Those rules of descent mentioned before are to be understood of fee simples, and not of entailed lands, and those rules are restrained by some particular customs of some particular Customs of cer places; as, namely, the custom of tain places. Kent, that every male of equal degree of childhood, brotherhood, or kindred, shall inherit equally, as daughters shall, being parceners; and in many borough towns of England, and the custom alloweth the youngest son to inherit, and so the youngest daughter. The custom of Kent is called gavelkind. The custom of boroughs, burgh English. Every heir bay bound by the his ancestors if he be named. And there is another note to be observed in feesimple inheritance, and that is, that every heir having fee-simple land or inheritance, be it by common law or by custom of either gavelkind or Property of lands by descent is, burgh English, is chargeable so far forth as the 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 sentit upon whom the descent is to light, is the ques- commodum, sentire debet et incommodum sive onus. tion. For which purpose the law of inheritance As for example, if a man bind himself preferreth the first child before all others, and and his heirs in an obligation, or doing and is amongst children the male before the female, and covenant by writing for him and his binding acts of amongst males the first born. If there be no heirs, or do grant an annuity for him children, 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, covenity, with these three rules of diversi- nant, annuity, and warranty, yet with these three three rules. 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 Plowd. ter of the half shall inherit to his brother or sister, but inheritance resteth in him unaliened away: for if inherit to his as a child to his parents, as for ex- the ancestor die, and the heir, before an action ample: If a man have two wives, and be brought against him upon those bonds, coveby either wife a son, the eldest son nants or warranties, do alien away the land, then overliving his father is to be preferred to the in- the heir is clean discharged of the burden, except heritance of the father, being fee-simple; but if the land was by fraud conveyed away of purpose he entereth and dieth without a child, the brother to prevent the suit intended against him. Thirdshall not be his heir, because he is of the half-ly, that no heir is further to be charged Dyer, 149. blood to him, but the uncle of the eldest brother than the value of the land descended Plowd. or sister of the whole blood; yet if the eldest bro- unto him from the same ancestor that made the Of descent, blood shall not brother or sister, but only as a child to his pa rents. Day & Pepp's case. 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. Neverthe less 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 cheat. Property of lands by escheat is where lauis by es- 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 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. 1. Bastardy. treason, felony. Attainder of titleth the king, holden of the crown immediately, or by mesne lords, is this. The Conqueror, by right of con the lands of the hands, and as he quest, got all realm into his gave it, still and services. 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 re- reserved rents ligious and church lands, and the land Knight's serin Kent,) and still as he gave any of first instituted. it out of his own hand, he reserved some retribution of rents or services, or both, to him and to his heirs, which reservation is that which is called the tenure of land. vice in capite tions in knight's In which reservation he had four in- The reserva. stitutions, exceeding politic and suitable to the state of a conqueror. service tenure. was four. 1. Marriage of the wards, male and female. service. fealty. 4. Primer seisip. 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 The policy of 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 service Upon attainder of treason the king is to have the land, although he be not the lord of whom it is held, because it is a royal escheat. But for felony it is not so, for there the king is not to have the escheat, except the land be holden of him and yet where the land is not holden of him, the king is to have the land for a year and a day next ensuing the judg-service of horse and man is a part of that tenure ment of the attainder, with a liberty to commit all manner of waste all that year in houses, gardens, ponds, lands, and woods. In escheat two observed. 1. The manner of the attainder. All lands are holden of the crown immedi ately or mediately by Deane lords, In these escheats two things are espethings are to be cially to be observed; the one is the The tenure. 2. tenure of the lands, because it directeth the person to whom the escheat belongeth, viz. the lord of the manor of whom the land is holden. 2. The manner of such attainder which drawConcerning the eth with it the escheat. Concerning the tenures of lands, it is to be understood, that all lands are holden of the crown, either mediately or immediately, and that the escheat appertaineth to the immediate lord, and not to the mediate. The reason why all land is the reason. 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 the Conqueror was, that his * Interest of marriage goeth employed in every tenure by knight's service. tenants by called homage, and unto faith, which was called feal. ty. 1. Homage. 2. Fealty. pite, and what into money rents. and an oath to bind the party to his by soccage in capite, the word socagium The institution kught's service faith and loyalty:* that vow was signifying the plough; howbeit, in this of soccage in caalty, which he called homage, the oath fealty. Ho-latter time, the service of ploughing the it is turned 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 a 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. 4. Institution nizon of the to be paid by the death of his is one year's profit of the lands called The fourth institution was, that for was for recog- recognizont of the king's bounty by king's bounty, every heir succeeding his ancestor in every heir upon those knight's service lands, the king ancestor, which should have primer seisin of the lands, which is one year's profit of the lands, primer seisin. and until this be paid the king is to have possession of the land, and then to restore it to the heir; which continueth at this day in use, and is the very cause of suing livery, and that as well where the heir hath been in ward as otherwise. Knight's ser were to pay re age of every one year's value held, ultra Re priss. Grand ser These beforementioned be the rights of the tenure called knight's service in capite, Capes which is as much to say, as tenure de persona regis, and capite being the grand renty chiefest part of the person, it is called lief at the full a tenure in capite, or in chief. And it her, which was is also to be noted, that as this tenure in capite by knight's service generally was a great safety to the crown, so also the conqueror instituted other tenures in capite necessary to his estate; as, namely, he gave divers lands to be holden of him by some special service about his person, or by bearing some special office in his house, or in the field, which have knight's service and more in them, and these he called tenures by grand serjeanty. Also he provided, upon the first gift of lands, to 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 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 tion. into those lands, and hold them (for which the king was to have those special services done him) without the king's leave. This license and fine, as it is now digested, is easy and of course. A license of third art of one in the year's value of the land mode. rately rated. portion of the There is an office called the office of alienation, where any man may have a license at Aid a sum of a reasonable rate, that is, at the third money rateably part of one year's value of the land mo- in to the proA tenant in cap. by lands. derately rated. 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. By example and resemblance of the king's policy in these institutions of were at first tenures, the great men and gentlemen of this realm did the like so near as they could: as for example, when the king had Manors created given to any of them two thousand by great men in acres of land, this party purposing in this place to make his dwelling, or, as the old word is, his mansion house, or imitation of the policy of th king in the institutions of te nures. A ma. nere, the word manor. Knight's ser served to com no persons. Relief is five pound to be paid by every tenant by knight's service his entrance re spectively for every knight's are for lives, one, two, or three successively; and some inheritances from heir to heir by custom, and custom ruleth these estutes wholly, both for widow's estates, fines, harriots, forfeitures, and all other things. 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 him with all manner of necessaries, and for that purpose, he would give of the outtermost parts of those two thousand acres one hundred or two hundred acres, or more or less, as Vice ture 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 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. Socraze tennre 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 a man is indicted for felony, being not in hold, so as he cannot be brought in person to appear, and to be tried, insomuch that process of capias is therefore awarded to the sheriff, who not finding him, returneth non est inventus in Balliva 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. of an attainder by outlawry. The tenants in soccage at the death 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 Bure 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 copy holders, and are so privileged that the lord cannot put them He that killeth Flying for fe A man that being pursued for felony, lony a forfeit and flieth for it, loseth his goods for his flying, although he return and is tried, and found not guilty of the fact. ure of goods. Attainder in fe- lony or treason from the time committed. 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 king or the lord, whosoever of them 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 der of outlawry, in the attainder fession, and out lawry, as to for the forfei and chattels their relation ture of goods So a man that killeth himself shall himself 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-up an attain that kill others in their own defence, or by mis- beit at this day it is ruled, that it shall otherwise it fortune. reach back to the time of his fact, but by verdict, confor goods, chattels, and debts, the king's title shall look no further back than to those goods, the party attainted 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 officers are to seize all the goods and chattels, and preserve them 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. He that yieldeth his body upon felony forfeiteth the exigent for his goods. So a man indicted of felony, if he yield not his body to the sheriff until after the exigent of proclamation is awarded against him, this man doth forfeit all his goods for his long stay, although he be found not guilty of the felony; but none is attainted to lose his lands, but only such as have judgments of death, by trial upon verdict, or their own confession, or that they be by judgment of the coroners outlawed as before. Lands entailed escheat to the king for trea son. 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. Stat. 26 H. 8. The king's offcers upon the as apprehension of seize his goods A person at be to the There can be no blood without restitution in act of parlia pardon enable!h chase, and the after shall inhe ment, but a 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 can not 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. |