writ. But, because at his first summons their | Property in Lands is gotten and transferred by one

falleth no punishment upon the four and twenty if they come not, they very seldom or never appear The manner of upon the first writ, and upon their deJusts of of fault there is another writ* returned to the sheriff, commanding him to distrain

proceeding of

cuits in their

circuits.

judges hold in

execution

mission concerning the taking of nisi prius.

The course the them by their lands to appear at a certheir circuit intain day appointed by the writ, which other com- is the next term after, Nisi Prius justiciarii nostri ad assizas capiendas venerint, &c. of which words the writ is called a nisi prius, and the judges of the circuit of that county in that vacation and mean time before the day of appearance appointed for the jury above, here by their commission of Nisi Prius have authority to take the appearance of the jury in the county before them, and there to hear the witnesses and proofs on both sides concerning the issue of fact, and to take the verdict of the jury, and against the day they should have appeared above, to return the verdict read in the court above, which return is called a postea.

Postea.

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 such damages and costs as the jury do assess.

5. Commission

Of property of

gained by entry.

All lands in

1. Property by entry is, where a man findeth a piece of land that no other lands to be possesseth or hath title unto, and he that so findeth it doth enter, this entry gaineth a property; this law seemeth to be derived from this text, terra dedit filiis hominum, which is to be understood, to those that will till and manure it, and so make it yield fruit; and that is he that entereth into it, where no man had it before. But this manner of gaining lands was in the first days, and is not now of use in England, for that by the conquest all the land of this nation was in the Conqueror's hands, and appropriated unto him, except religious and church lands, and the lands in Kent, which by composition were left to the former owners, as the Conqueror found them, so that no man but the 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 lands possessed without any such title are in the crown, and not in him that first entereth; as it is by land left by the sea, this land belongeth to the king, and not to

the Conquer.

England were ors and a proupon the conland, and held 1. Religious lands. 2. The men of Kent. sea belongeth to

priated to him

quest of Engof him, except and church

lands of the

Land left by the the king.

By those trials called Nisi Prius, the juries and the parties are eased much of the charge they should be put to, by coming to London with their evidences and witnesses, and the courts of West-him that hath the lands next adjoining, which minster are eased of much trouble they should have if all the juries for trials should appear and try their causes in those courts; for those courts above have little leisure now; though 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, do retain those causes to be tried there, and the juries do at this day in such causes come to the bar at Westminster. The fifth commission that the judges is a commission in their circuits do sit by, is the commission of the peace in every county of their circuit. And all the justices of the peace, having no lawful impediment, are bound to be present at the assizes to attend the judges, as occasion shall call out; if any make default, the The justices of judges may set a fine upon him at their the sheriff are to pleasure and discretions. Also the sheriff in every shire through the circuit is to attend in person, or by a sufficient deputy allowed by the judges, all that time they be within the county, and the judges may fine him if he fail, or for negligence or misbehaviour in his office before them; and the judges above may also fine the sheriff for not returning or not sufficient returning of writs before them.

of the peace.

the peace and

altend the

judges in their county.

* Distringas.

was the ancient sea banks. This is to be under-
stood of the inheritance of lands; viz. that the
inheritance cannot be gained by the first entry.
But an estate for another man's life by out-laws
may, at this day, be gotten by entry. As a man
called A. having land conveyed unto him for the
life of B. dieth without making any estate of it
there, whosoever first entereth into the land after
the decease of A. getteth the property in the land
for time of the continuance of the estate which
was granted to A. for the life of B. which B. yet
liveth and therefore the said land cannot revert
till B. die. And to the heir of A. it cannot go,
for that it is not any state of inheritance, but only
an estate for another man's life; which is not de-
scendable to the heir, except he be specially
named in the grant: viz. to him and his heirs.
As for the executors of A. they cannot have it,
for it is not an estate testamentary, that it should
go to the executors as goods and chattels should,
so as in truth no man can entitle himself unto
those lands; and therefore the law preferreth him
that first entereth, and he is called occu- Occupancy.
pans, and shall hold it during the life
of B. but must pay the rent, perform the condi-
tions, and do no waste. And he may by deed
assign it to whom he please in his life time.
But if he die before he assign it over, then it shall
Y

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.

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. That land pur-
chased 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 Descent.
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.

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. Those rules of descent mentioned before are to And if such person abator, or disseisor (so as be understood of fee simples, and not of entailed the disseisor hath quiet possession five years next lands, and those rules are restrained by some after the disseisin) do continue their possession, particular customs of some particular Customs of cerand die seised, and the land descend to his heir, places; as, namely, the custom of tain places. they have gained the right to the possession of Kent, that every male of equal degree of childthe land against him that hath right till he recover hood, brotherhood, or kindred, shall inherit it by fit action real at the common law. And if equally, as daughters shall, being parceners; and it be not sued for at the common law within three- in many borough towns of England, and the cusscore years after the disseisin, or abatement com- tom alloweth the youngest son to inherit, and so mitted, the right owner hath lost his right by that the youngest daughter. The custom of Kent is negligence. And if a man hath divers children, | called gavelkind. The custom of boroughs, burgh 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 descent.

English.

Every heir hav

inglandin binding acts of if he be named.

bound by the

his ancestors

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 do amongst children the male before the female, and covenant by writing for him and his 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, coveof descent, nity, with these three rules of diversi- nant, annuity, and warranty, yet with these three 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 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

three rules.

blood shall not inherit to his brother or sister, but only as a child to his pa rents.

Day & Pepp's

caac.

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 lands 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.

1. Bastardy.

Attainder of
treason en-
titleth the king,
though lands
be not holden
of him, other.
wise in attain-
der of felony,
&c. for there
the king shall
have but an
num diem et
vest247.

holden of the crown immediately, or by mesne lords, is this.

The Conqueror, by right of con the lands of the gave it, he still

quest, got all

realm 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 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.

In which reservation he had four institutions, exceeding politic and suitable to the state of a conqueror.

night's se

vice in capite

The reserva

tions in knight's

service tenure. was four.

2.

1. Marriage of

the wards, male
Horse for
3. Homage and

and female.

service.

fealty. 4. Primer

The policy of in the reserva

the Conqueror, tion of services constituted in four particulars marriage of his

was to have the

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.

wards both

male and fe male.

that his tenant horse of service,

should keep a

and serve upon him himself,

when the king which is a part of that service

went to wars,

called knight's service.

The second was to the end that his Reservation 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

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 called knight's service at this day. all manner of waste all that year in houses, gardens, ponds, lands, and woods.

In escheat two

observed. 1.

The manner of

All lands are holden of the

crown immediately 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.

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

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 tenure re he should think meet, to one of his most

Knight's ser.

served to com.

nion persons.

Relief is five pound to be paid by every tenant by knight's service

to his lord upon pectively for

his entrance re

fee descended.

are for lives, one, two, or three successively;
and some inheritances from heir to heir by cus
tom, and custom ruleth these estates wholly,
both for widow's estates, fines, harriots, forfeit-
ures, and all other things.
Manors being in this sort made at

Court Baron,

it.

Suit to the court

of the lord incipure of the free

dent to the te

holders.

trusty servants, with some reservation | the first, reason was that the lord of with the use of of rent, to find a horse for the wars, and go with the manor should hold a court, which 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,* 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 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.

Soccare tenure

lord.

Relief of tenant

year's rent and no wardship or other profit

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, copy-
holds, 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 free-
holders 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.

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.

The outlawry groweth in this sort: 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

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, of the tenant. 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 beginning, 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

Villenage or te

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. Aid money and escuage money is likewise due unto the lords of their tenants, vide N. 3. fol. 82 and 83.

VOL. III.-33

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 back side 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.

But note, that a man found guilty of Prayer of cler felony by verdict or confession, and

Y 2