Descent. not entered in the life of the father, either by such entry or conveyance, then the youngest brother should inherit the land that the father had, although it were a child by the second wife, before any daughter by the first. The third rule about descents: The land purchased so by the party himself that dieth, is to be inherited; first, by the heirs of the father's side; then, if he have none of that part, by the heirs of the mother's side. But lands descended to him from his father or mother, are to go to that side only from which they came, and not to the other side. Customs of certain places. debt of his ancestor do not deal clearly with the court when he is sued, that is, if he Heir charged shall be now charged by his false plea of his own lands, goods, and body, to pay the hundred pound, although the ten acres be not worth ten pound. Property of lands by es cheat. Two causes of es 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 par-him by the verdict that he hath ten acres; this heir ticular customs of some particular places as namely, the customs of Kent, that every male of equal degree of childhood, brotherhood, or kindred, shall inherit equally, as daughters shall, being parceners; and in III. Property of lands by escheat, is many borough towns of England, the custom allow-where the owner died seised of the lands eth the youngest son to inherit, and so the youngest in possession without child or other daughter. The custom of Kent is called, Gavelkind. heir, thereby the land, for lack of other The custom of boroughs, Burgh-English. 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 land's owner 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. 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 BurghEnglish, is chargeable, so far forth as the value thereof extendeth, with the binding acts of the ancestors from whom the inheritance descendeth: and these acts are collateral encumbrances, and the reason of this charge is, "Qui sentit commodum, Every heir having land is bound by the binding acts of his ances tors, if he be named. Dyer, 114. Plowd. sentire debet et incommodum sive onus." As for example, if a man bind himself and his heirs in an obligation, or do covenant by writing for him and his heirs, or do grant an annuity for him and his heirs, or do make a warranty of land, binding him and his heirs to warranty in all these cases the law chargeth the heir after the death of the ancestor with this obligation, covenant, annuity, and warranty: yet with these three cautions: first, that the party must by special name bind himself and his heirs, or covenant, grant, and warrant for himself and his heirs; otherwise the heir is not to be touched. Secondly, that some action must be brought against the heir, whilst the land or other inheritance resteth in him unaliened away for if the ancestor die, and the heir, before an action be brought against him upon those bonds, covenants, or warranties, do alien away the land, then the heir is clean discharged of the burden; except the land was by fraud conveyed away of purpose to prevent the suit intended against him. Thirdly, that no heir is farther to be charged than the value of the land descended unto him from the same ancestor that made the instrument of charge, and that land Day and also, not to be sold out-right for the Pepp's case. 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 2 P Dyer, 149. Plowd. VOL. I. cheat. 1. Bas tainder of treason, felony. tardy. 2. At Attainder of treason entitleth the king, though lands be not holden of him: other 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 judgment of the attainder, with a liberty to commit all manner of waste all that year in houses, gardens, ponds, lands, and woods. wise in attainder of felony, &c. for there the king shall num, diem et have but an vastum. In escheats, 1. The tenure. 2 The mantainder. ner of the at In these escheats two things are especially to be observed; the one is, the tenure of the lands, because it directeth the person to whom the escheat belongeth, namely, the lord of the manor of whom the land is holden. 2. The manner of such attainder which draweth with it the escheat. Concerning the tenure 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 holden of the crown immediately, or by mesne lords, is this: 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 The Con queror got all the realm into the lands of his hands, rents and services. Knight's service in capite tuted. first insti retribution of rents, or services, or both, to him and to his heirs; which reservation is that which is called the tenure of land. The reservation in knight's service. 1. Marriage of 3. Ho the wards. 2. Horse for service. mage and Jealty. 4. Primer seisin. The policy of the Conquer or in the reservation of services. In which reservation he had four institutions, exceeding politic and suitable to the state of a conqueror. First, 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 ordained, 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 implied, and doth at this day in every tenure called knight's service. Reservation that his tenant should keep a horse of service, and serve upon him himself when the king went to war. 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 of horse and man is a part of that tenure 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. 3. Institution of the Conqueror was, that his tenants by knight's service vow, 1. Homage. 2. Fealty. : *The third institution was, that upon every gift of land the king reserved a vow and an oath to bind the party to his faith and loyalty that vow was called homage, the oath fealty. Homage is to be done kneeling, holding his hands between the knees of the lord, saying in the French tongue, I become your man of life and limb, and of earthly honour. Fealty is to take an oath upon a book, that he will be a faithful tenant to the king, and do his service, and pay his rents according to his 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 20s. and from every tenant in socage, if his land be worth twenty pound per annum, 20s. Escuage was likewise due unto the king from his tenant King's service in capite is a tenure de persona regis. Tenants by grand serjeanrelief at the ty were to pay full age of every heir, which was one of the lands so year's value held ultra repriss. Grand serjeanty. jeanty. Petty ser These before mentioned be the rights of the tenure, called knight's service in capite, which is as much to say, as tenure de persona regis; and caput being the 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 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 be 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 tenant may hire another to do, or provide for his money. And this tenure is called a tenure by socage in capite, the word soca signifying the plough; howbeit in this latter time, the service of ploughing the land, and of harvest works, is turned into money-rent, for that the kings do not keep their demesne in their own hands, as they were wont to do; yet what lands were de antiquo dominio coronæ, it well appeareth in the records of the exchequer called the book of Doomsday. And the tenants in ancient demesne have many immunities 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. The institu tion of socage in capite, and turned into that it is now money-rent. These tenures in capite, as well that by socage as the others by knight's service, have this property; that the tenants cannot alien their lands without licence of the king; if they 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, 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 called escuage. because the king would have a liberty in the choice | park paled, and the like: and for that end he would of his tenant, so that 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 licence and fine, as it is now digested, is easy and of course. Office of alienation. A li There is an office called the office of alienation, where any man may have a cence of alien- licence at a reasonable rate, that is, ation is the third part of at the third part of one year's value of one year's value of the the land moderately rated. A tenant land modein capite by knight's.service or grand rately rated. 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. And to this tenure by knight's service Aid, what. Tenants by in chief was incident, that the king knight's sershould have a certain sum of money vice in capite paid it to called aid, due, to be ratably levied make the king's eldest amongst all those tenants proportionably son a knight, to their lands, to make his eldest son a or to marry his eldest knight, or to marry his eldest daughter. daughter. And it is to be noted, that all those Tenants by socage in that hold lands by the tenure of socage capite. in capite, although not by knight's service, cannot alien without licence, and they are to sue livery, and pay primer seisin, but not to be in ward for body or land. How manors were at first created. Manors created by great men in imita tion of the king in the institutions of tenures. A manere, the word manor. Knight's ser By example and resemblance of the king's policy in these institutions of tenures, the great men and gentlemen of this realm did the like so near as they could; as for example, when the king had given to any of them two thousand acres of land, this party purposing in this place to make a dwelling, vice tenure re- or, as the old word is, his mansionserved to com- house, or his manor-house, did devise mon persons. how he might make his land a complete habitation to supply him with all manner of necessaries; and for that purpose, he would give of the uttermost parts of those two thousand acres, 100 or 200 acres, or more or less, as 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 pound for every knight's fee, or after that 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 Relief is 51. to be paid by every tenant by knight's service to his lord, &c. Socage tenure reserved by the lord. * 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. 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, cummin, roses, gilliflowers, spurs, gloves, or the like: or to pay to him a certain rent, and to be sworn to be his faithful tenant, which tenure was called a socage tenure, and is so to this day; howbeit most of the ploughing and harvest service are turned into money rents. nant in socage, and no wardship, or other profit upon the dying of the one year's rent tenant. of court-roll. + The tenants in socage at the death Relief of teof every tenant were to pay relief, which was not as knight's service is, five pound 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 bondmen, 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 tenants at will, by copy of court-roll; being in truth bond- Villenage or men at the beginning: but having ob- tenure by copy tained 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 out, and all through custom. Some copyholders are for lives, one, two, or three successively; and some inheritances, from heir to heir by custom; and custom ruleth these estates wholly, both for widows' estates, fines, herriots, forfeitures, and all other things. Manors being in this sort made at the first, reason was that the lord of the with the use of 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 was to seise 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 shillings value, and the freeholders are to judge of the cause upon proof produced upon both sides. And therefore the freeholders of these manors, as court of the incident to their tenures, do hold by to the tenure suit of court, which is to come to the of the freecourt, and there to judge between party and party in those petty actions; and also to inform the lord of duties, 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. Court baron, it. Suit to the lord incident holders. All money and escuage money is likewise due unto the lords of their tenants. What attain ders shall give the escheat to the lord. Attainders, 1. By judgment. 2. By verdict or confession. 3. By outlawry, give Now concerning what attainders shall give the escheat to the lord; 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 lands to The outlawry groweth in this sort; the lord. Of an attainder a man is indicted for felony, being not by outlawry. 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 mea ;" and thereupon another capias is awarded to the sheriff; who likewise not finding him maketh the same return: then a writ called an exigent is directed to the sheriff, commanding him to proclaim him in his county court five several court days, to yield his body; which if the sheriff do, and the party yield not his body, he is said, by the default, to be outlawed, the coroners there adjudging him outlawed, and the sheriff making the return of the proclamations, and of the judgment of the coroners upon the backside of the writ. This is an attainder of felony, whereupon the offender doth forfeit his lands by an escheat to the lord of whom they are holden. Prayer of the clergy. But note, that a man found guilty of felony by verdict or confession, and praying his clergy, and thereupon reading as a clerk, and so burnt in the hand and discharged, is not attainted; because he by his clergy preventeth the judgment of death, and is called a clerk convict, who loseth not his lands, but all his goods, chattels, leases, and debts. So a man indicted, that will not answer nor put himself upon trial, although he be by this to have judgment of pressing to death, yet he doth forfeit no lands, but goods, chattels, leases, and debts, except his offence be treason, and then he forfeiteth his lands to the crown. He that standeth mute forfeiteth no lands, except for treason. Flying for felony, a forfeiture of goods. He that yieldeth his body upon the exigent for felony forfeiteth his goods. A man that being pursued for felony, and flieth for it, loses his goods for his flying, although he return and is tried, and found not guilty of the fact. So a man indicted for 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 not found 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. The custom of Kent is, that Gavelkind land is not forfeitable nor escheatable for felony for they have an old saying; The father to the bough, and the son to the plough. If the husband was attainted, the wife was to lose her thirds in cases of felony and treason, but yet she is no offender; but at this day it is holden by statute law, that she loseth them not for the husband's felony. The relation of these forfeits are these: the The wife los eth no dower, notwithstanding the bus band be atfelony. tainted of felony or trea sion, or out Attainder in son by verdict, confes lawry, forfeithad from the time of the mitted. And so it is upon an at eth all they offence com tainder of out lawry; otherwise it is in by verdict, the attainder confession, and outlawry, as to their reforfeiture of goods and lation for the chattels 1. That men attainted of felony or treason, by verdict or confession, do forfeit all the lands they had at 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 of teste of the writ of exigent for proclamation, whereupon he is outlawed: how beit at this day it is ruled, that it shall reach back to the time of the fact; but for goods, chattels, and debts, the king's title shall look no farther 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 party's first apprehension, the king's officers are to seize all the goods and chattels, and preserve them together, dispending only so much out of them, as is fit for the sustentation of the person in prison, without any wasting, or disposing of them until conviction; and then the property of them is in the crown, and not before. It is also to be noted, that persons A person atattainted for felony or treason have no tainted may capacity in them to take, obtain, or it shall be to purchase, but purchase, save only to the use of the the king's use. king, until the party be pardoned. Yet the party The king's of ficers to seize a felon's goods and chattels There can be in blood without act of parliament; but a pardon enableth a man to purchase, and the heir begotten after shall inherit those lands. getteth not back his lands or goods no restitution 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 shall there be accounted to die without heir; and the land shall escheat, whether the eldest son have issue or not, afterwards or before, though he be pardoned after the death of his father. Property of Jand by conveyance divided into, 1. Estates in fee. 2. In tail. 3. For life. • Leases for years, they go to the executors, and not to the heirs. IV. Property of lands by conveyance is first distributed into estates for years, for life, in tail, and fee-simple. elegit. Ward. ship of body and lands are chattels and forfeitable. ment in any court of record, statute able. 2. Leases for lives are also called Lease for life freeholds: they may also be made by how forfeitword or writing. There must be livery and seisin given at the making of the lease by him, whom we call the lessor; who cometh to the door, backside, or garden, if it be a house, if not, then to some part of the land, and there he expresseth, that he doth grant unto the taker, called the 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 Indorsement of livery, &c. Lease for life by the sheriff' for debt, but not to be sold extended at a yearly value. A man that These estates are created by word, before mentioned, of leases for years; saving in an 4. For years. Leases are to attainder. 1. In treason. 3. Premunire. flying. 6. &c. 7. By These are forfeitable to the crown, in like manner as leases for years; namely, interest gotten in other men's lands by extending for debt upon judg hath bona felon, by charhave the lease for life ter, shall not estate, if be attainted. If a 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. occupant; as before hath been declared. A lease for years or for life may be made also by fine of record, or bargain and sale, or covenant, to stand seised upon good considerations of marriage, or blood; the reasons whereof are hereafter expressed. 3. Entails of lands are created by a Of estate tails, gift, with livery and seisin to a man, and how such 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. Entails of lands began by a statute made in Ed. I.'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 act of conveyance or attainder; nor let it, nor encumber it, longer than his own life. But the inconvenience thereof was great, for by that means the land being so sure tied upon the heir as that his an estate may be limited. |