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.

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 disseisor (so as the disseisor 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.

Property of

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.

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 some particular custoas of cerplaces; as, namely, the custom of in places. 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, and 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 burgh English, 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

bound by the his ancestors

Property of lands by descent is, lands by de. where a man hath lands of inheritscent. ance, and dieth, not disposing of them, but leaving it to go (as the law casteth it) upon the heir. This is called a descent of law, and 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 Every heir havpreferreth the first child before all others, and and his heirs in an obligation, or do in it amongst children the male before the female, and covenant by writing for him and his binding acts of amongst males the first born. If there be no heirs, or do grant an annuity for him if he be named. 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 three rules. 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 blood to him, but the uncle of the eldest brother than the value of the land descended Flowd. or sister of the whole blood; yet if the eldest bro- unto him from the same ancestor that made the

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

rents.

Dyer, 1 £9.

case.

instrument of charge, and that land also not to be Day & Pepp's sold outright for the debt, but to be kept in extent, and at a yearly value, until the debt or damage be run out. Neverthe less 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 charred for his false plea.

Property of

cheat.

Property of lands by escheat is where lan's by es- 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. Alainder 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. Bavardy.

Attainder of treason en

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 services.

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 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 serfirst instituted.

vice in capite

The reserva

tions in knight's

service tenure.
was four.
1. Marriage of

the wards, male

and female.

service.

fealty.

seisid.

Horse for 3. Homage and 4 Primer The policy of in the reserva contr was to have the

the Conqueror, tion of services

four particulars

marrtage of his

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 female.

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 porUpon attainder of treason the king is tion of lands, that might make the parto have the land, although he be not ty of abilities or strength, he withal the lord of whom it is held, because it reserved this service: that that party is a royal escheat. But for felony it is and his heirs having such lands, should keep a not so, for there the king is not to have horse of service continually, and serve upon him the escheat, except the land be holden himself when the king went to wars, or else, of him and yet where the land is not having impediment to excuse his own person, holden of him, the king is to have the should find another to serve in his place; which 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.

tleth the king,
though lands
be not holden
of him, other
Wise in atta-n-
der of fe! ay,
&c. for there
the king shall
bare but an
men diem et
westum.

In escheat two

observed. 1.

The manner of the attainder. All lands are holien of the crown immediately or mediately by Bese lords,

In these escheats two things are espethes are to be cially to be observed; the one is the The tenure. 2. tenure of the lands, because it directeth 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

the reason.

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

the Conqueror

was, that his

Interest of marriage goeth employed in every tenure by knight's service.

Knight's ser

served to eDion person.

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

he entrance respectively for

fee descended.

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 are for lives, one, two, or three successively; him with all manner of necessaries, and for that and some inheritances from heir to heir by cuspurpose, he would give of the outtermost parts tom, and custom ruleth these estutes wholly, of those two thousand acres one hundred or both for widow's estates, fines, harriots, forfeittwo hundred acres, or more or less, as ures, and all other things. ture re 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, blend up so created and placed, was and is to this e 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, how beit most of the plowing and harvest services are turned into money rents.

Socraze tenure

lord.

Relief of tenant

Hi soccage, one year's rent and

other profit

Suit to the court

of the lord incipure of the free

dent to the te

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 a man is indicted for felony, being not 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

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.

of an attainder by outlawry.

The tenants in soccage at the death of every tenant were to pay relief, which Bo wardship or was not as knight's service is, five apon 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 Eure Ly 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. 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 stand. eth mute forfeiteth no lands,

Attainder in fe by verdict, com

lony or treason fession, or outall they had

lawry, forfeiterh

from the time

committed.

1. That men attainted* of felony or treason, by verdict or confession, do forfeit all the lands they had at the time of their offence committed, and the king or the lord, whosoever of them of the offence 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 himself forfeit 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; how- upon an attaisthat kill others in their own defence, or by mis-beit at this day it is ruled, that it shall otherwise it is fortune.

son.

So a man indicted, that will not answer, nor put himself upon trial, alexcept for trea though 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 eth but his chattels.

der of outlawry, in the attainder fession, and outtheir relation

ture of goods

reach back to the time of his fact, but by verdict, con-
for goods, chattels, and debts, the layo
king's title shall look no further back for the forfei
than to those goods, the party attainted and challels.
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's off-
the king's officers are to seize all the ce upon the
goods and chattels, and preserve them f
together, dispending only so much out and chattcls.
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.

apprehension of

seize his goods

A person at

shall to

ment, but a

a man to per heir begoften rit those lands

It is also to be noted, that persons tainted may attainted of felony or treason have no parchebt it capacity in them to take, obtain, or king's use. 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 spe- There can be po cial patent of restitution, which can restitution in blood without not restore the blood without an act of act of parlia parliament. So if a man have a son, pardon enablefh and then is attainted of felony or trea- chase, and the son, and pardoned, and purchaseth after shall inhe 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

* of the relation of attainders, as to the forfeiture of lands and goods with the diversity.