sion is a

are of the peace the and the shede- attend the

The justices

riff are to

their coun

The fifth commission that the judges in their cir- 5. Commiscuits do sit by, is the commission of the peace in commissionevery county of their circuit. And all the justices of the peace. of the peace, having no lawful impediment, bound to be present at the assizes to attend judges, as occasion shall fall out: if any make fault, the judges may set a fine upon him at their judges in pleasure and discretions. Also the sheriff in every ty. 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.

Property in lands, how gotten or transferred.

I. By entry.

II. By descent. III. By escheat.

IV. Most usually by conveyance.

entry.

I. PROPERTY by entry is, where a man findeth of the proa piece of land that no other possesseth, or hath title lands to be perty of unto, and he that so findeth it doth enter, this entry gained by gaineth a property. This law seemeth to be derived from this text, Terram 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 All lands in the conquest all the land of this nation was in the England Conqueror's hands, and appropriated unto him; ex- Conquercept religious and church lands, and the lands in or's, and Kent, which by composition were left to the former except, 1. owners, as the Conqueror found them; so that none and churchbut the bishopricks, churches, and the men of Kent, lands. 2. can at this day make any greater title than from the of the men conquest, to any lands in England. And lands pos

were the

held of him,

Religious

The lands

of Ken.

sessed without any such title, are in the crown, and

not in him that first entereth; as it is in land left Lands left by the sea; this land belongeth to the king, and by the sea not to him that hath the lands next adjoining, to the king. which was the ancient sea banks. This is to be

belongeth

Occupancy.

understood of the inheritance of lands, namely, that the inheritance cannot be gained by the first entry. But an estate for another man's life by occupancy, may at this day be gotton 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 the 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 estate of inheritance, but only an estate for another man's life; which is not descendable to the heir, except he be specially named in the grant, namely, 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 intitle himself unto those lands; and therefore the law preferreth him that first entereth, and he is called occupans, and shall hold it during the life of B. but must pay the rent, perform the conditions, and do no waste: and he may by deed assign it to whom he please in his lifetime. But if he die before he assign it over, then it shall go again to whomsoever first entereth and holdeth; and so all the life of B. so often as it shall happen.

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.

And if such person, abator or disseissor, so as the disseissor hath quiet possession five years next after the disseisin, do continue their possession, and die seised, and the land descend to his heir, they have gained the right to the possession of the land against him that hath right, till he recover it by fit action real at the common law. And if it be not sued for at the common law, within threescore years after the disseisin, or abatement committed, the right owner hath lost his right by that negligence. And if a man hath divers children, 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.

II. PROPERTY of lands by descent is, where a Property of man hath lands of inheritance and dieth, not dispos- descent. lands by ing of them, but leaving it to go, as the law casteth it, upon the heir. This is called a descent in law, and upon whom the descent is to light, is the question. For which purpose, the law of inheritance preferreth the first 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 sisters: if neither brothers nor sisters, then uncles, and for lack of uncles, aunts; if none of them, then cousins in the nearest degree of consanguinity, with these three rules of diversities. 1. That the eldest male shall of descent: Of solely inherit; but if it come to females, then they being all in an equal degree of nearness shall inherit Brother or all together, and are called parceners, and all they half blood make but one heir to the ancestor. 2. That no bro- shall not ther or sister of the half blood shall inherit to his bro- his brother ther or sister, but as a child to his parents: as for or sister, example, if a man have two wives, and by either a child to wife a son, the eldest son over-living his father, is his parents.

three rules.

sister of the

inherit to

but only as

certain places.

to be preferred to the inheritance of the father, being fee-simple; but if he entereth and dieth without a child, the brother shall not be his heir, because he is of the half blood to him, but the uncle of the eldest brother or sister of the whole blood: yet if the eldest brother had died, or had 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.

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 particular Customs of 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 many borough towns of England, the custom alloweth the youngest son to inherit, and so the youngest daughter. The custom of Kent, is called Gavelkind. The custom of boroughs, Burgh-English.

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 incumbrances, and the reason Every heir of this charge is, Qui sentit commodum, sentire debet having land et incommodum sive onus. As for example, if a is bound by the binding man bind himself and his heirs in an obligation, or acts of his do covenant by writing for him and his heirs, or do grant an annuity for him and his heirs, or do make a

ancestors,

if he be

named.

Plowd.

Plowd.

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 Dyer, 114. 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, defore 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, Dyer, 149. 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 Pepp's also, not to be sold out-right for the debt, but to be case. 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 Heir chargset down the true quantity of his inheritance de- ed for his false plea. scended, 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 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.