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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 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 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, 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 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, comiatt, 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, how beit most of the plowing and harvest services are turned into money rents.

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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

What attain

the escheat to

ders shall give the lord. At judgment. 2 cafes. 3.

tainders. 1. By

By verdict or

By conlawry give the lands to 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

The tenants in soccage at the death of every tenant were to pay relief, which was not as knight's service is, five 5 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 the sheriff, who likewise, not finding him, maketh manor how they should hold it, making an entry the same return; then a writ called an exigent is of it into the roll of the remembrances of the acts directed to the sheriff, commanding him to proof his court, yet still in the lord's power to take claim him in his county court, five several court it away; and therefore, they were called days, to yield his body, which if the sheriff do, arty of tenants at will, by copy of court roll; and the party yield not his body, he is said by the being in truth bondmen at the begin-default to be outlawed, the coroners there adjudgning, but having obtained freedom of their per- ing him outlawed, and the sheriff making the resons, and gained a custom by use of occupying turn of the proclamations and of the judgment of their lands, they now are called copyholders, and the coroners upon the back side of the writ. This are so privileged that the lord cannot put them is an attainder of felony, whereupon the offender doth forfeit his lands, by an escheat, to the lord of whom they are holden.

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. + All meney and escuage money is ikewise due unto the lords of their tenants, vide N. 3. fol. 82 and 83.

VOL. III.-33

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

Y 2

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.

He that standeth mute forfeiteth no lands, except for trea."

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1. That men attainted* of felony or treason, by verdict or confession, do loy forfeit all the lands they had at the time for of their offence committed, and the ad king or the lord, whosoever of them of the OS 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 So a man that killeth himself shall time of the offence done, or only to the date or 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; howthat kill others in their own defence, or by mis-beit at this day it is ruled, that it shall

son.

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 killeth himself forfeit. eth but his chattels.

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reach back to the time of his fact, but by verdict, con
for 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 out-
lawries at the time of the exigent, as well in trea
sons as felonies: wherein it is to be observed,
that upon the parties first apprehension, The king of
the king's officers are to seize all the pota
goods and chattels, and preserve them De tre às pada
together, dispending only so much out and chattes
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.

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It is also to be noted, that persons attainted of felony or treason have no capacity in them to take, obtain, or 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 real ta not restore the blood without an act of act of parla parliament. So if a man have a son, panah and then is attainted of felony or trea- cham son, and pardoned, and purchaseth all tabe lands, and then hath issue another son, and dieth, the son he had before he had his par don, 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.

shall there be accounted to die without heir, and the land shall escheat, whether the eldest son have issue or not afterward or before, though he be pardoned after the death of his father.

fore mentioned

years.

be a house, if not, then to some part of the means be the land, and there he expresseth, that of leases for 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 com

Property of lands by conveyance is first distributed into estates for years, for life, in tail, and fee-monly there is a note written on the back side of

siraple.

Promets of ia te con

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Leases for years

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THESE estates are created by word, by writing, or by record. For estates Es of years, which are commonly called leases for years, they are thus made; where the owner of the land agreeth with the other by word of mouth, that the other shall have, hold, and enjoy the land, to take the profits thereof for a time certain of years, months, weeks, or days, agreed between them, and this is called a lease parol; such a lease may to the be made by writing pole, or indented at to the beir of devise, grant, and to farm let, and so also by fine of record; but whether any rent be reserved or no, it is not material. Unto these leases there may be annexed such exed by aceptions, conditions, and covenants, as the parties can agree on. They are Pre called chattels real, and are not inheritable by the heirs, but go to the executors and administrators, and be saleable for debts in the life of the owner, or in the executors' or administrators' & hands by writs of execution upon statutes, recognisances, judgments of debts or damages. They be also forfeitable to the crown by outlawry, by attainder for treason, felony, or premunire, killing himself, flying for felony, although not guilty of the fact, standing out or refusing to be tried by the country, by conviction of felony, by verdict without judgment, petty larceny, or going beyond the sea without license.

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They are forfeitable to the crown, in like manner as leases for years, or interest gotten in other men's lands, by extending for debt upon judgment in any court of record, stat. merchant, stat. staple, recognisances; which being upon statutes are called tenants by stat. merchant, or staple, the other tenants by elegit, and by wardship of body and lands, for all these are called chattels real, and go to the executors and administrators, and not to the heirs, and are saleable and forfeitable as leases for years are.

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the lease, with the names of those witnesses who were present at the time of the 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 before mentioned, of leases for years; saving in an attainder for, and felony, treason, premunire, and then only to the crown, not to the lords by escheat.

And though a nobleman or other have liberty, by charter, to have all felon's goods, yet a tenant holding for term of life, being attainted of felony, doth forfeit unto the king, and not to this nobleman.

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A lease for years, or for life, may be made also by fine of record, or bargain and such and sale, or covenant, to stand seised be in ed. upon good considerations of marriage, or blood, the reasons whereof are hereafter expressed.

Entails of lands are created by a gift, with livery and seisin to a man, and to the heirs of hig 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.

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But the inconvenience thereof was The great in great, for, by that means, the land le toce being so sure tied upon the heir, as that theref his father could not put it from him, it made the son to be disobedient, negligent, and wasteful. often marrying without the father's consent, and to grow insolent in vice, knowing that there could be no check of disinheriting him. It also made the owners of the land less fearful to emit murders, felonies, treasons, and manslaughters, for that they knew none of these acts could hurt *Endorsement of livery upon the back of the deed and wit ness of it.

the heir of his inheritance. It hindered men that | unkind suits, setting all that kinored at jars, had entailed lands, that they could not make the best of their lands by fine and improvement, for that none upon so uncertain an estate, as for term of his own life, would give him a fine of any value, nor lay any great stock upon the land that might yield rent improved.

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26 H. 8.

32 11. 8.

33 H. 8. 13 & 39 Eliz. Entails two privileges.

Not forfeit

able for felony.

2. Not extend

able for the debts of the party after his death. Previso,

not to put away

the land from his next heir.

If he do, to for feit his own es

Late, and that his next heir must enter.

The income

perpetuities.

some taking one part, some another, and the prin-
cipal parties wasting their time and money in
suits of law. So that in the end they
are both constrained by necessity to renees of those
join both in a sale of the land, or a
great part of it, to pay their debts, occasioned
through their suits. And if the chiefest of the
family, for any good purpose of well seating him.
self, by selling that which lieth far off is to buy
that which is near, or for the advancement of his
daughters or younger sons should have reasonable
cause to sell, this perpetuity, if it should hold
good, restraineth him. And more than that, where
many are owners of inheritance of land, not en-
tailed may, during the minority of his eldest son,
appoint the profits to go to the advancement of the
younger sons and daughters, and pay debts; by
entails and perpetuities the owners of these lands
cannot do it, but they must suffer the whole to
descend to his eldest son, and so to come to the
crown by wardship all the time of his infancy.
Wherefore, seeing the dangerous
times and untowardly heirs, they might
prevent those mischiefs of undoing
their houses by conveying the land from
such heirs, if they were not tied to the
stake by those perpetuities, and re- ty
strained from forfeiting to the crown, and dispo-
sing it to their own or to their children's good:
therefore it is worthy of consideration, whether it
be better for the subject and sovereign to have
the lands secured to men's names and bloods by
perpetuities, with all the inconveniences above-
mentioned, or to be in hazard of undoing his
house by unthrifty posterity.

Quare weber be better to

restrain over by theer perpet ties from ales

ations, or to ing of us h

sard the w

unthrifty ple

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By a statute made, 26 H. VIII. a tenant in tail doth forfeit his lands for treason; and by another act of Parliament, 32 H. VIII. he may make leases good against his heir for twenty-one years, or three lives; so that it be not of his chief houses, lands, or demesne, or any lease in reversion, nor less rent reserved than the tenants have paid most part of twenty-one years before, nor having any manner of discharge for doing wastes and spoils: by a statute made 33 H. VIII. tenants of entailed lands are liable to the king's debts by extent, and by a statute made 13 and 39 Eliz. they are saleable for the arrearages upon his account for his The last and greatest estate of lands office. So that now it resteth, that entailed lands is fec-simple, and beyond this there is als have two privileges only, which be these. First, none of the former for lives, years, or not to be forfeited for felonies. Secondly, not to entails; but beyond them is fee-simple. be extended for debts after the parties' death, For it is the greatest, last, and utter-states fea except the entails be cut off by fine and recovery. most degree of estates in land; there. But it is to be noted, that since these fore he that maketh a lease for life, or a gift in notable statutes, and remedies provided tail, may appoint a remainder when he maketh which is an ea by statutes, do dock entails, there is another for life or in tail, or to a third in fee-simdition. start up a device called perpetuity, ple; but after a fee-simple he can limit no other which is an entail with an addition of a proviso estate. And if a man do not dispose of the feeconditional, tied to his estate, not to put away the simple by way of remainder, when he maketh the land from his next heir; and if he do, to forfeit gift in tail, or for lives, then the fee-simple resteth his own estate. Which perpetuities, if they in himself as a reversion. The differ. The should stand, would bring in all the former incon-ence between a reversion and a remain. De veniences subject to entails, that were cut off by der is this: The remainder is always the former mentioned statutes, and far greater: a succeeding estate, appointed upon the for, by the perpetuity, if he that is in possession gifts of a precedent estate, at the time start away never so little, as in making a lease, or when the precedent is appointed. But the rever selling a little quillet, forgetting after two or three sion is an estate left in the giver, after a particu. descents, as often they do, how they lar estate made by him for years, life, or entail; ties would bring are tied, the next heir must enter, where the remainder is made with the particular toconveniences who, peradventure, is his son, his bro- estates, then it must be done by deeds in writing, ther, uncle, or kinsman, and this raiseth with livery and seisin, and cannot be by words.

Of the new device called a perpetuity,

en

These perpetui.

in all the former

of estates tails.

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And if the giver will dispose of the a bad to reversion after it remaineth in himself, he is to do it by writing, and not by word, and the tenant is to have notice of it, and to atturn it, which is to give his assent by word, or paying rent, or the like; and except the tenant will thus atturn, the party to whom the reversion is granted cannot have the reversion, neither can he compel him by any law to atturn, except the grant of the reversion be by fine; and then he may by writ provided for that purpose: and if he do not purchase that writ, yet by the fine the reversion shall pass; and the tenant shall pay no rent, except he will himself, nor be punished for any wastes in houses, woods, &c., unless it be granted by bargain and sale by indenture enrolled. These fee-simple estates lie open to all perils of forfeit ures, extents, encumbrances, and sales.

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Lands are conveyed by these six means: first, La may be by feoffment, which is, where by deed lands are given to one and his heirs, and livery and seisin made according to the form and effect of the deed; if a lesser estate than fee-simple be given, and livery of seisin made, it is not called a feoffment, except the fee-simple be conveyed, but is otherwise called a lease for life or gift entail as abovementioned.

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What a fee in, A fine is a real agreement, beginning thus, Hæc est finalis concordia, &c. This ཆཙྭ ཏིཿ!2ཎྜན། ad krety. is done before the king's judges in the Court of Common Pleas, concerning lands that a man should have from another to him and his heirs, or to him for his life, or to him and the heirs males of his body, or for years certain, whereupon rent may be reserved, but no condition or covenants. This fine is a record of great credit, and upon this fine are four proclamations made openly in the Common Pleas; that is, in every term one for four terms together: and if any man, taka tarresh having right to the same, make not his claim within five years after the proclamations ended, he loseth his right, for ever, except he be an infant, a woman covert, a madman, or beyond the seas, and then his right is saved; so that he claim within five years after the death of her husband's full age, recovery of his wits, or return from beyond the Fone is a fuff seas. This fine is called a feoffinent

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record of record, because that it includeth all that the feoffment doth, and worketh further of his own nature, and barreth entails peremptorily, whether the heir doth claim within five years or not, if he claim by him that levied the fine. Recoveries are where, for assurances of lands, the parties do agree, that one shall begin an action real against the other, as though he had good right to the land, and the other shall not enter into defence against it, but allege that he bought the land of I. H. who had

What recove

the cryers of the

warranted unto him, and pray that I. H. may be called in to defend the title which I. H. is one of the cryers of the Common Pleas, and Common is called the common voucher. This voucher of one I. H. shall appear and make as if he court. would defend it, but shall pray a day to be assigned him in his matter of defence, which being granted him, at the day he maketh default, and thereupon the court is to give judgment against him, which cannot be for him to lose his lands, because he hath it not, but the party that he hath sold it to, hath that who vouched him to warrant it.

Judgment for

the demandant ant in tail.

against the te

Judement for

Therefore the demandant who hath no defence made against it, must have judgment to have the land against him that he sued, (who is called the tenant,) and the tenant is to have judgment against I. H. to recover in value so much land of his, where, in truth, he hath none, nor never will. And by this device, grounded upon the strict principles of law, the first tenant loseth the land, and hath nothing for it; but it is by his own agreement, for assurance to him that bought it.

tenant to re land in value of voucher.

cover so much

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This sleight was first invented when entails fell out to be so inconvenient as is before declared, so that men made no conscience to cut them off if they could find law for it. And now by use, those recoveries are become common assurances against entails, remainders, and reversions, and are the greatest security purchasers have for their moneys; for a fine will bar the heir in tail, and not the remainder, nor reversion, but a common recovery will bar them all. Upon feoffments and recoveries, the Upon fines, foolestate doth settle as the use and intenten's, au recoveries, 'he of the parties is declared by word or estateh set. tle according to writing, before the act was done; As the tent of for example; they make a writing that one of them shall levy a fine, make a feoffment, or suffer a common recovery to the other, but the use and intent is, that one should have it for his

the parties.

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