« PreviousContinue »
(per service de chivaler), and it draweth to it ward (gard), marriage, and · relief. For when such tenant dieth, and his heir male be within the age of twenty-one years, the lord shall have the land holden of bim until the age of the heir of twenty-one years ; the which is called full age, because such heir, by intendment of the law, is not able to do such knight's service before his age of twenty-one years. And also if such heir be not married at the time of the death of his ancestor, then the lord shall have the wardship and marriage of him. But if such tenant dieth, his heir female being of the age of fourteen years or more, then the lord shall not have the wardship of the land, nor of the body ; because that a woman of such age may have a husband able to do knight's service. But if such heir female be within the age of fourteen years, and unmarried at the time of the death of her ancestor, the lord shall have the wardship of the land holden of him until the age of such heir female of sixteen years; for it is given by the statute of W[estm]. I. cap. 22, that by the space of two years next ensuing the said fourteen years, the lord may tender covenable marriage without disparagement to such heir female. And if the lord within the said two years do not tender such marriage, &c., then she at the end of the said two years may enter, and put out her lord. But if such heir female be married within the age of fourteen years, in the life of her ancestor, and her ancestor dieth, she being within the age of fourteen years, the lord shall have only the wardship of the land until the end of the fourteen years of age of such heir female, and then her husband and she may enter into the land and oust the lord. For this is out of the case of the said statute, insomuch as the lord cannot tender marriage to her which is married, &c. For before the said statute of W[estm]. I. such issue female, which was within the age of fourteen years at the time of the death of her ancestor, and after she had accomplished the age of fourteen years, without any tender of marriage by the lord unto her, such heir female might have entered into the land and ousted the lord, as appeareth by the rehearsal and words of the said statute; so as the said statute was made (as it seemeth) in such case altogether for the advantage of lords. But yet this is always intended by the words of the same statute, that the lord shall not have these two years after the fourteen years, as is aforesaid, but where such'heir female is within the age of fourteen years, and unmarried at the time of the death of her ancestor.
And of heirs males which be within the age of twenty-one years after the decease of their ancestor, and not married, in this case the lord shall have the marriage of such heir, and he shall have time and space to tender to him covenable marriage without disparagement within the said time of twenty-one years. And it is to be understood that the heir in this case may choose whether he will be married or no; but if the lord, which is called guardian in chivalry, tenders to such heir covenable marriage within the age of twenty-one years without disparagement, and the heir refuseth this, and doth not marry himself within the said age, then the guardian shall have the value of the marriage of such heir
male. But if such heir marrieth himself within the age of twenty-one years, against the will of the guardian in chivalry, then the guardian shall have the double value of the marriage by force of the statute of Merton aforesaid, as in the same statute is more fully at large comprised.
Also divers tenants hold of their lords by knight's service, and yet they hold not by escuage, neither shall they pay escuage; as they which hold of their lords by castle-ward, that is to say, to ward a tower of the castle of their lord, or a door or some other place of the castle, upon reasonable warning, when their lords hear that the enemies will come, or are come in England. And in many other cases a man may hold by knight's service, and yet he holdeth not by escuage, nor shall pay escuage, as shall be said in the tenure by grand serjeanty. But in all cases where a man holds by knight's service, this service draweth to the lord ward and marriage.
And if a tenant which holdeth of his lord by the service of a whole knight's fee dieth, his heir then being of full age, scil., of twenty-one years, then the lord shall have 100s. for a relief, and of the heir of him which holds by the moiety of a knight's fee, 50s., and of him which holds by the fourth part of a knight's fee, 258., and so he which holds more, more, and which less, less.
Co. Lit. 77 a. When an heir hath been in ward to the king by reason of a tenure in capite, after his full age he must sue livery, which is half a year's profit of his lands holden. But if he be of full age at the time of the death of his ancestor, then he shall pay for lands in possession a whole year's profit for primer seisin; but if it be of a reversion expectant upon an estate for life, as tenant in dower, tenant by the curtesy, or tenant for life, then he shall pay but the moiety of one year's profit.
If the heir be in ward by reason of a tenure of an honor or manor (except as before), he shall not sue livery, but an ouster le maine cum exitibus, albeit he never made tender. And if he be of full age, the king shall have no primer seisin, but relief. But where the tenure is in capite, there the king shall have the mean profits until the tender be made; and if the tender be made, and not duly pursued, the king shall also have all the mean profits.
Lit. $$ 143, 147, 153. Tenant by homage ancestral is, where a tenant holdeth his land of his lord by homage, and the same tenant and
lord and of his ancestors, whose heir the lord is, time out of memory of man, by homage, and have done to them homage. And this is called homage ancestral, by reason of the continuance, which hath been, hy title of prescription, in the tenancy in the blood of the tenant, and also in the seigniory in the blood of the lord. And such service of homage ancestral draweth to it warranty, that is to say, that the lord which is living and bath received the homage of such tenant, ought to warrant his tenant, when he is impleaded of the land holden of him by homage ancestral.
1 See Palmer's Case, 5 Co. 126 b.; Darcy's Case, 6 Co. 70 b.
Also, if a man which holds his land by homage ancestral alien to another in fee, the alienee shall do homage to his lord ; but he holdeth not of his lord by homage ancestral, because the tenancy was not continued in the blood of the ancestors of the alienee; neither shall the alienee have warranty of the land of his lord ; because the continuance of the tenancy in the tenant and to his blood by the alienation is discontinned. And so see that if the tenant which holdeth his land of his lord by homage ancestral alieneth in fee, though he taketh an estate again of the alienee in fee, yet he holds the land by homage, but not by homage ancestral.
Tenure by grand serjeanty is, where a man holds his lands or tenements of our sovereign lord the king, by such services as he ought to do in his proper person to the king, as to carry the banner of the king, or his lance, or to lead his army, or to be bis marshal, or to carry his sword before him at his coronation, or to be his sewer at his coronation, or his carver, or his butler, or to be one of his chamberlains of the receipt of his exchequer, or to do other like services, &c. And the cause why this service is called grand serjeanty is, for that it is a greater and more worthy service than the service in the tenure of escuage. For he, which holdeth by escuage, is not limited by his tenure to do any more especial service than any other which holdeth by escuage, ought to do. But he, which holdeth by grand serjeanty, ought to do some special service to the king, which he that holds by escuage ought not to do.
Co. Lit. 105 b. This tenure hath seven special properties, – 1. To. be holden of the king only. 2. It must be done, when the tenant is able, in proper person. 3. This service is certain and particular. 4. The relief due in respect of this tenure differeth from knight's service. 5. It is to be done within the realm. 6. It is subject to neither aid pur faire fitz chivaler, or file marier. And, 7, It payeth no escuage.
Lit. $$ 154, 156. Also, if a tenant which bolds by escuage dieth, his heir being of full age, if he holdeth by one knight's fee, the heir shall pay but 100s. for relief, as is ordained by the statute of Magna Charta, c. 2. But if he which holdeth of the king hy grand serjeanty dieth, his heir being of full age, the heir shall pay to the king for relief one year's value of the lands or tenements which he holdeth of the king by grand serjeanty over, and besides all charges and reprises. And it is to be understood that serjeantia in Latin is the same quod servitium, and so magna serjeantia is the same quod magnum servitium.
Also, it is said that in the marches of Scotland some hold of the king by cornage, that is to say, to wind a horn to give men of the country warning when they hear that the Scots or other enemies are come or will enter into England ; which service is grand serjeanty. But if any tenant hold of any other lord than of the king by such service of cornage, this is not grand serjeanty, but it is knight's service, and it draweth to it ward and marriage; for none may hold by grand serjeanty but of
Co. Lit. 13 a.
Escheate, escheta, is a word of art, and derived from
the French word escheat (id est) cadere, excidere, or accidere, and signi
are holden, in which case we say the fee is escheated. And therefore of some, escheats are called excadentice or terræ excadentiales. Dominus vero capitalis loco hæredis habetur, quoties per defectum vel delictum extinguitur sanguis sui tenentis. Loco hæredis et haberi poterit cui per modum donationis fit reversio cujusque tenementi. And Ockam (who wrote in the reign of Henry II.), treating of tenures of the king, saith, porro eschætæ vulgo dicuntur, quæ decedentibus hiis qui de rege tenent, &c. cum non existit ratione sanguinis hæres, ad fiscum relabuntur. So as an escheat doth happen two manner of ways, aut per defectum sanguinis, i. e. for default of heir, aut per delictum tenentis, i. e. for felony, and that is by judgment three manner of ways, aut quia suspensus per collum, aut quia abjuravit regnum, aut quia utlegatus est. And, therefore, they which are hanged by martial law in furore belli forfeit no lands; and so in like cases escheats by the civilians are called caduca.
The father is seised of lands in fee holden of I. S.; the son is attainted of high treason; the father dieth ; the land shall escheat to I. S. propter defectum sanguinis, for that the father died without heir. And the king cannot have the land, because the son never had anything to forfeit. But the king shall have the escheat of all the lands whereof the person attainted of high treason was seised, of whomsoever they were holden.
Lit. $$ 117, 118, 120, 121, 123, 126–129. Tenure in socage is where the tenant holdeth of his lord the tenancy by certain service for all manner of services, so that the service be not knight's service. As where a man holdeth his land of his lord by fealty and certain rent, for all manner of services ; or else where a man holdeth his land by homage, fealty, and certain rent, for all manner of services; or where a man holdeth his land by homage and fealty for all manner of services ; for homage by itself maketh not knight's service.
Also, a man may hold of his lord by fealty only, and such tenure is tenure in socage ; for every tenure which is not tenure in chivalry, is a tenure in socage.
Also, if a man holdeth of his lord by escuage certain, scil. in this manner, when the escuage runneth and is assessed by parliament to a greater or lesser sum, that the tenant shall pay to his lord but half a mark for escuage, and no more nor less, to how great a sum, or to how little the escuage runneth, &c., such tenure is tenure in socage, and not knight's service. But where the sum which the tenant shall pay for escuage is uncertain, scil. where it may be that the sum that the tenant shall pay for escuage to his lord may be at one time more and at another time less, according as it is assessed, &c., such tenure is tenure by knight's service.
Also, if a man holdeth his land to pay a certain rent to his lord for castle-guard, this tenure is tenure in socage. But where the tenant ought by himself or by another to do castle-guard, such tenure is tenure by knight's service.
Also, in such tenures in socage, if the tenant have issue and die, his issue being within the age of fourteen years, then the next friend (le prochein amy) of that heir, to whom the inheritance cannot descend (a que le heritage ne poet descender), shall have the wardship of the land and of the heir until the age of fourteen years, and such guardian
part of the father, then the mother, or other next cousin of the part of the mother, shall have the wardship. And if land descend to the heir of the part of the mother, then the father, or next friend of the part of the father, shall have the wardship of such lands or tenements. And when the heir cometh to the age of fourteen years complete, he may enter and oust the guardian in socage, and occupy the land himself if he will. And such guardian in socage shall not take any issues or profits of such lands or tenements to his own use, but only to the use and profit of the heir; and of this he shall render an account to the heir when it pleaseth the heir, after he accomplisheth the age of fourteen years. But such guardian upon his account shall have allowance of all his reasonable costs and expenses in all things, &c. And if such guardian marry the heir within age of fourteen years, he shall account to the heir or his executors of the value of the marriage, although that he took nothing for the value of the marriage; for it shall be accounted his own folly that he would marry him without taking the value of the marriage, unless that he marrieth him to such a marriage that is as much worth in value as the marriage of the heir.
Also, the lord of whom the land is holden in socage, after the decease of his tenant, shall have relief in this manner. If the tenant holdeth by fealty and certain rent to pay yearly, &c., if the terms of payment be to pay at two terms of the year, or at four terms in the year, the lord shall have of the heir his tenant as much as the rent amounts unto, which he payeth yearly. As if the tenant holds of his lord by fealty, and ten shillings rent payable at certain terms of the year, then the heir shall pay to the lord ten shillings for relief, beside the ten shillings which he
And in this case, after the death of the tenant, such relief is due to the lord presently, of what age soever the heir be ; because such lord cannot have the wardship of the body nor of the land of the heir. And the lord in such case ought not to attend for the payment of his relief, according to the terms and days of payment of the rent; but he is to