Peace. which Denial and Affirmation the Law fays, that the Iffue is join'd betwixe them; which Iffue of the Fact is to be tried by a Jury of twelve Men of the County, where it is fuppofed by the Plaintiff to be done. And for that purpose the Judges of the Court award a Writ of Venire Facias, in the King's Name, to the Sheriff of that County; commanding him to caufe four and twenty difcreet Freeholders of his County, at a certain Day, to try this Iffue fo join'd; out of which four and twenty, only twelve are chose to serve. And that double Number is returned, because fome may make Default, and fome be challenged upon Kindred, Alliance, or partial Dealing. 34. These four and twenty the Sheriff names, and certifies to the Court; and withal, that he has warned them to come at the Day, according to their Writ. But because at the firft Summons there falls no Punishment upon the four and twenty if they come not, they very feldom or never appear upon the first Writ; and on their Default there is another Writ return'd to the Sheriff, commanding him to distrain them, by their Lands, to appear at a certain Day appointed by the Writ; which is the next Term after; Nifi Prius Jufticiarij noftri ad Affifas capiendas venerint, &c. from which Words the Writ is call'd a Nifi Prius. And the Judges of the Circuit of that County, in that Vacation, before the Day of Appearance appointed for the Jury above; here by their Commiffion of Nifi Prius, have Authority to take the Appearance of the Jury in the County before them; and there to hear the Witneffes and Proofs on both fides, concerning the Iffue of Fact; and to take the Verdict of the Jury; and against the Day they fhould have appeared above, to return the Verdict in the Court above; which Return is call'd a Poftea. And upon this Verdict clearing the Matter in Fact, one way or other, the Judges above give Judgment for the Party for whom the Verdict is found; and for fuch Damages and Costs the Jury affeffes. 35. By thofe Trials call'd Nifi Prius, the Juries and the Parties are. much eafed of the Charge they would be put to, by coming to London. with their Evidences and Witneffes; and the Courts of Westminster are much eafed of the Trouble they would have, if all the Juries for Trials fhould appear, and try their Caufes in thofe Courts; for thefe Courts above have little Leifure now. And tho the Juries come not up, yet in Matters of great Weight, or where the Title is intricate or difficult; the Judges above, upon Information to them, retain thofe Caufes to be tried there; and the juries do at this Day, in fuch Cafes, come to the Bar at Weftminfter. Commiffion of 36. The fifth Commiffion that the Judges in their Circuits fit by, is the Commifion of the Peace in every County of their Circuit. And all the Juftices of the Peace, having no lawful Impediment, are bound to be prefent at the Affizes, to attend the Judges, as Occafion fhall require. If any. one make Default, the Juges may fet a Fine upon him, at their Difcretion.. Alfo the Sheriff in every Shire, thro the Circuit, is to attend in Perfon, or by a fufficient Deputy allow'd by the Judges, all the time they are within the the County and the Judges may fine him, if he fail, or for Negligence or Mifbehaviour in his Office before them. And the Judges above may alfo fine the Sheriff, for not returning, or not fufficient returning of Writs before them. 1. SECT. III. The PROCEDURE of the LAW in Matter of PRO PROPERTY. Lands, how Roperty in Lands is acquired or transferred; (1.) by Entry; Property of (2.) by Descent; (3.) by Escheat ; and, (4.) most commonly by acquired. Gonveyance. 2. Property by Entry is, where a Man finds a Piece of Land that no Property by Entry. Perfon poffeffes, or hás Title to; and he that fo finds it enters: this Entry gains a Property. This Law feems to be derived from this Text, Terram dedit filiis hominum; which is to be understood, to those that will till and manure it; and fo make it yield Fruit: and that is, he who enters into it, where no Man had it before. But this manner of gaining Lands was in the first Days, and is not now of ufe in England; for by the Conqueft, all the Land of this Nation was in the Conqueror's Hands, and appropriated to him; except religious and Church Lands, and the Lands in Kent, which by Compofition were left to the former Owners, as the Conqueror found them; fo that none but Bishopricks, Churches, and the Men of Kent, can at this Day make any greater Title than from the Conquest, to any Lands in England. And the Lands poffeffed without any fuch Title, are in the Crown, and not in him that first enters; as it is by Land left by the Sea. This Land belongs to the King, and not to him that has Land left by the Lands next adjoining, which was the ancient Sea-bank. This is to be the Sea beunderstood of the Inheritance of Lands; viz. that the Inheritance cannot be longs to the gained by the first Entry. Suppofe a Man call'd A, having Land convey'd to him for the Life of B, dies without making any Eftate of it; there, whoever first enters into the Land after the Deceafe of 4, gets the Property in the Land, for time of the Continuance of the Eftate which was granted to 4, for the Life of B; which B yet lives; and therefore the faid Land cannot return till B die. And to the Heir of A it cannot go, because it is not any Eftate of Inheritance; but only an Eftate for another Man's Life; which is not defcendable to the Heir, except he be specially named in the Grant; viz. to him and his Heirs. As for the Executors of 4, they cannot have it; for it is not an Estate teftamentary, that it should go to the Executors, as Goods and Chattels fhould; fo that in truth no Man' Ii 2 can King. Sect. III. can entitle himself to those Lands: and therefore the Law prefers him that Occupancy. first enters; and he is call'd Occupans, and fhall hold it during the Life of B; but must pay the Rent, perform the Conditions, and do no waste : and he may by Deed affign it to whom he please in his Life-time. But if he die before he affign it over; then it fhall go again to whom foever first enters and holds; and fo all the Life of B, as often as it fhall hap Property of Three Rules of Defcent. pen. 3. Likewife, if any Man wrongfully enters into another's Poffeffion, and puts the right Owner of the Freehold and Inheritance from it; he thereby gets the Freehold and Inheritance by Diffeifin; and may hold it against all Men; but him that has Right, and his Heirs, and is call'd a Diffeifor. Or if any one die feifed of Lands, and before his Heir enters, one that has no Right enters into the Lands, and holds them from the right Heir, he is call'd an Abator; and is lawful Owner against all Men but the right Heir. 4. And if fuch a Perfon, Abator or Diffeifor, provided the Diffeifor has quiet Poffeffion five Years next after the Diffeifin, continue Poffeffion, and die feifed, and the Land defcend to his Heir; they have gained the Right to the Poffeffion of the Land against him that has Right, till he recover it by fit Action real at the Common Law. And if it be not fued for at the Common Law within threefcore Years after the Diffeifin, or Abatement committed, the right Owner has loft his Right by that Negligence. And if a Man has diverfe Children, and the elder, being a Bastard, enters into the Land, and enjoys it quietly during his Life, and dies fo seised thereof; his Heirs fhall hold the Land against all the lawful Children, and their Iffues. 5. Property of Lands by Defcent, is that where a Man has Lands of Inheritance and dies, not difpofing of them, but leaving them to go, as the Law cafts it, upon the Heir. This is call'd a Defcent of Law; and upon whom the Defcent is to light, is the Queftion. For which purpose, the Law of Inheritance prefers the firft Child before all others; and amongst Children, the Male before the Female; and amongst Males, the first-born. If there be no Children, then the Brother; if no Brother, then Sifters; if neither Brothers nor Sifters, then Uncles; and for want of Uncles, Aunts; then Coufins in the nearest Degree of Confanguinity, with these three Rules of Diversities. (1.) That the eldest Male fhall folely inherit; but if it come to Females, then they being all in an equal Degree of Nearness, fhall inherit all together, and are call'd Parceners; and all these make but one Heir to the Anceftor. (2.) That no Brother, nor Sifter of half Blood, fhall inherit to his Brother or Sifter, but as a Child to his Parents for Example; if a Man have two Wives, and by either Wife a Son, the eldest Son out-living his Father, is to be preferred to the Inheritance of the Father, being Fee-fimple; but if he enters and dies childless, the Brother shall not be his Heir, because he is of the half Blood to him; but the Uncle of the eldest Brother or Sifter of the whole Blood: yet if the eldest Brother had died, or had not entered in the Life of the Father, either by fuch Entry or Conveyance, then the youngest Brother should inherit the Land that the Father had, altho it were a Child by the second Wife, before any Daughter by the first. (3.) The third Rule about Descents, is, That Land purchased fo by the Party himself that dies, is to be inherited; first, by the Heirs of the Father's fide; then if he have none of that Part, by the Heirs of the Mother's fide. But Lands defcending to him from his Father or Mother, are to go to that fide only from which they came, and not to the other fide. 6. Thefe Rules of Defcent, are to be understood of Fee-fimples, Customs of and not of entailed Lands; and they are reftrained by fome particular certainPlaces. Customs of particular Places: as namely, the Cuftoms of Kent, that every Male of equal Degree of Childhood, Brotherhood, or Kindred, fhall inherit equally, as Daughters fhall, being Parceners and in many Borough Towns in England, the Custom allows the youngest Son to inherit, and fo the youngest Daughter. The Custom of Kent is call'd Gavel-kind. The Cuftom of Boroughs, Burgh-English. : 7. There is another thing to be obferved in Fee-fimple Inheritance; Every Heir viz. that every Heir having Fee-fimple Land or Inheritance, be it by Com- having Land, is bound by mon Law or by Cuftom, either of Gavel-kind or Burgh-English, is charge-the binding able, fo far as the Value thereof extends, with the binding Acts of the Acts of his Ancestors from whom the Inheritance defcends; and thefe Acts are colla- Ancestors. teral Incumbrances: and the Reafon of this Charge is, Qui fentit commodum, fentire debet & incommodum, five Onus. As for Example; if a Man bind himself and his Heirs in an Obligation, or Covenant by Writing, for him and his Heirs, or grant an Annuity for him and his Heirs, or make a Warranty of Land, binding him and his Heirs to Warranty; in all these Cafes the Law charges the Heir, after the Death of the Ancestor, with this Obligation, Covenant, Annuity, and Warranty; yet with these three Cautions: first, that the Party muft, by fpecial Name, bind himself and his Heirs, or covenant, grant, and warrant for himself and his Heirs; otherwise the Heir is not to be touched. 8. Secondly, that fome Action must be brought against the Heir, whilst the Land or other Inheritance refts in him unaliened away: for if the Anceftor die, and the Heir, before an Action be brought against him upon thefe Bonds, Covenants, or Warranties, do alien away the Land, then the Heir is clean discharged of the Burden; except the Land was by Fraud convey'd away, on purpose to prevent the Suit intended against him. 9. Thirdly, that no Heir is farther to be charged, than the Value of the Land defcended to him, from the fame Ancestor that made the Inftrument of Charge; and that Land alfo, not to be fold out-right for the Debt; but to be kept in extent, and at a yearly Value, until the Debt or Damage be run out. 10. Nevertheless, if an Heir that is fued upon fuch a Debt of his Anceftor, do not deal clearly with the Court when he is fued; that is, if he come not in immediately, and by way of Confeffion fet down the true Quantity of his Inheritance defcended; and fo fubmit himself, as the Law requires ; Heirs charged requires; then the Heir that otherwife demeans himself, fhall be charged for falfe Plea 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 dies, leaving but ten Acres of Land to his Heir; if his Heir be fued upon the Bond, and comes in, and denies that he has any Lands by Defcent; and it is found against him by the Verdict, that he has ten Acres; this Heir fhall be new charged by his falfe Plea of his own Lands, Goods and Body, to pay the three hundred Pounds, altho the ten Acres be not worth ten Pounds. Property of 11. Property of Lands by Efcheat, is where the Owner died feifed of the Lands in Poffeffion, without Child or other Heir, whereby the Land, for want of other Heir, is faid to efcheat to the Lord of whom it is held. The Caufes of This Want of Heir happens principally in two Cafes: firft, where the Efcheat. Land's Owner is a Baftard. Secondly, where he is attainted of Felony or 'Treafon For neither can a Bastard have any Heir, except it be his own Child, nor a Man attainted of Treafon, tho it be his own Child. Attainder of 12. Upon Attainder of Treafon, the King is to have the Land, tho Treafon enti- he be not the Lord of whom 'tis held; becaufe it is a royal Efcheat. But tles the King for Felony, the King is not to have the Efcheat, except the Land be held of him: and yet where the Land is not held of him, the King is to have the Land for a Year and a Day next enfuing the Judgment of the Attainder, with a Liberty to commit all manner of wafte, all that Year, in Houfes, Gardens, Ponds, Lands and Woods. 13. In thefe Efcheats two things are efpecially to be obferved; viz. (1.) the Tenure of the Lands, because it directs the Perfon to whom the Efcheat belongs; viz. the Lord of the Manor of whom the Land is held. (2.) The manner of fuch Attainder which draws with it the Efcheat. Concerning the Tenure of Lands, it is to be understood, that all Lands are held of the Crown, either mediately or immediately; and that the Escheat appertains to the immediate Lord, and not to the mediate. The Reason why all Land is held of the Crown immediately, or by Mefne Lands, is this. The Conqueror got, by Right of Conqueft, all the Land of the Realm into his own Hands, in Demefne; taking away from every Man all Eftate, Tenure, Property, and Liberty of the fame; except religious and Church-Lands, and the Land in Kent: and ftill as he gave any of it out of his own Hand, he referved fome Retribution of Rents, or Services, or both, to him and his Heirs; which Refervation is called the Tenure of Knight's Ser-Land. In which Refervation he had four Inftitutions, exceeding politick vice inftituted and fuitable to the State of a Conqueror. 14. The first was, that feeing 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 purpofe ordains, that if thofe of his Nobles, Knights, and Gentlemen, to whom he gave great Rewards. of Lands, fhould die, leaving their Heir within Age, a Male within twenty-one, and a Female within fourteenYears, and unmarried; then the King fhould have the bestowing of fuch |