VOLUME II.

BOOK III.

OF INTRUSIONS AND THEIR REMEDIES.

CHAPTER I.

Of Intrusions.

i.

HAVING concluded the process whereby a plaintiff may recover his seisin of freehold, in redress of a wrong done to his own person, we shall now speak of the method of recovering by plea the seisin of his ancestor. For when any one dies, his heir ought to succeed to whatsoever he died seised of in his demesne as of fee, although another may have had more right of property therein, unless he died as a felon convict. And if he died without any heir, the chief lord shall stand in the place of heir.

2. But because a person that has no right may immediately after the death of any one abate himself into the inheritance of the right heir, and keep out the heir and the chief lord of the fee, and no law would permit the seisin to remain in that fashion, the law allows such intruders to be ejected while the intrusion

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is freslj by the light heirs or the chief lord of the fee without any wrong being done ; and the word ' fresh ' shall be so understood, according as the right heir has means of knowing the fact, and according as he was near or far, as has been said in the Book of Disseisins. *Jf they cannot so eject, or if the abaters have had so long and so peaceable a seisin, that they ought not to be ejected without judgment, then they must be aided by remedy of our court. But because there are several kinds of intrusions, the form of the writ must be varied according to the different cases.

3. Intrusion is a wrongful abatement during the vacancy of the soil, when no one is in seisin either by corporeal presence or by continuance of will; as after the death of a person who died seised of the fee and freehold, before the heir of the deceased has taken any sort of seisin ; or after the decease of one who in like manner died seised of the fee and freehold without heir or as a felon, before the lord to whom the escheat belongs has attained to seisin thereof; or after the death of any one who died seised only of the freehold by fine levied and chirograph, or by form of gift, or by other kind of tenure for term of life, before he to whom the land ought to revert has attained to seisin.

4. As all these cases are intrusions, the forms of the writs must be varied according to the diversity of the cases. Sometimes the action and the plaint belong to the right heirs, and sometimes to the chief lords by reason of escheat, and sometimes by reason of wardship. And because pleas ought rather to be hastened

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than delayed, it is proper that sucli writs be provided as drive the intruders to answer by the *great and little Cape, rather than other kind of writs pleadable by personal distresses. In this writ neither view nor voucher lies, because the plea savours in part of the nature of novel disseisin and of trespass by reason of the abatement.

5. If the heir be of full age at the time of the death of his ancestor, and holds himself in seisin of his inheritance with the deceased, and after the decease is found in seisin, or if after the death of his ancestor he finds the inheritance vacant, and enters before the chief lord has seised it, it is lawful for such heir being of full age to keep out the chief lord if he can, unless he ought to hold the inheritance of us in chief, so as he be always readv to perform to the lord homage or relief or other service according as law and right require.

6. But because all heirs are not bound to perform homage to their lords, we must first understand the nature of tenements,—which are subject in relation to the lords of the fees, to homage, and which not; and what tenements and what heirs ought to be in ward of the lords, and what not; and in respect of w^That kind of tenements lords ought to have wardship, marriage, homage, and relief, and of what not.

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*CHAPTER II.

Of Wardship ; of the various tenures of land ; and of the remedy against supposititious children.

1. There are several kinds of fees and tenures, the chief whereof are those of knight service and grand serjeanty,¹ which fees were provided for the defence

¹ ' Note, that knight's fee is dependent on the shield (delescu); and signifleth that one ought to do knight's duty (fere chivalerie) for such tenements, i. e. exercise arms (hantier les armes) in time of war. So Grand Serjeanty is a diminutive of the shield (un deminutif del escu); and signifleth that one should do esquire's duties (esquierie) for such tenure, i. e. be armed, as belongeth to an esquire, to combat in time of war, or otherwise serve, as the king or his lord hath need. And he shall do homage, for he will do honourable service (honeste fra) in battle, and fight armed with his target hanging from his neck, which is to him in stead of shield. And this you may understand by the name, for esquier is, as it were, escuer. But there is a difference between the arms (armures) of knights and esquires. So Petty Serjeanty is a diminutive of Grand Serjeanty. For knights and Serjeants cannot endure in war without being served with provisions (vitaille) and other things. Wherefore for footmen (home n, pie) were such tenures provided, to do such various duties as belong to their service ; because a footman (poun) cannot do noble acts (honeste fere); and gentlemen (gentiz gentz) hold no feat honourable except prowess of arms. All the other tenures, save ancient demesnes, are dependent upon the fees aforesaid.

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of our realm, and of which the heirs are not capable of defence or of bearing arms until they have accomplished the age of twenty-one years; and it is therefore ordained that the lords of the fees shall have for all the intermediate time the wardship of their fees, and all the profits of the issues, and the advowsons of churches, and the wardship of wards, without making waste of woods, destruction of tenements, exile of villains, or sale of lands.

2. The same tenant may be heir to several fees, of which one is of more ancient feoffment than another. And whereas the first feoffor or the lord of the most ancient fee has a better right to the wardship of the body, and consequently to the marriage, by reason of the allegiance, than another later feoffor, it sometimes happens, where the last feoffor thinks that he is the first and has a greater right, that he who has no right deforces the wardship from him who has a better right. For which wrong a remedy is provided by our writ of right of ward, which is intended to be determined by a simple jury upon the priority of feoffment

For frank farms, fee farms, and frank almoigne, were changed (translateez) from knights' fees into socages discharged of such foreign service for a certain sum by the year. Ancient de-meynes were and are the king's villenages ; whereof burgages and sokemanries are changed for such villenages into free tenure (franchise) at a certain service done to their lord. And as ancient demesnes are the king's villenages, to be cultivated and dealt with as may please him (pur gayner e pur fere quantque lui plest), so are other kinds of villenages the demesnes of other lordships.' Note in MS. N.

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without battle or great assise. *So writs of right of marriage are not frank tenement, but movable chattels devisable by testament; the manner of proceeding in which writ, after the great distress awarded, is contained in our Statutes of Westminster.

3. Nevertheless if there be any such heirs whose ancestors died seised of any land held of us in chief of the ancient fees of our Crown,¹ we will that we have the wardship of all the lands which ought to descend to those heirs as their inheritance, with all the corn found on such lands, to whose fee soever the lands belong. And if the ancestors of such heirs held any land of us in chief as of our escheats, or of our purchases, or of our petty serjeanties, or of our socages, or of our fee farms, in that case the custody of the bodies of such heirs during their tender age shall remain with us, and their marriages shall be ours ;² but each lord shall have the wardship of his own fee and of the land held of him, until such heirs have proved their age in our court, and have recovered their inheritance out of our hand.

¹ The annotator in MS. N. applies the term ' homage ancestrel' to the case here supposed, and says that it was then to be presumed (dune deyt horn entendre) that the tenant or his ancestors were enfeoffed by the king before any of his other feoffors.

² There is some confusion in this statement; the rule that the custody of the body and the marriage belonged to the king applied only where the land was held of the king, though not de corona, by military service, and not to the other cases mentioned in the text of tenants in socage or by petty serjeanty. Compare Magna Carta, c. 27 ; and the parallel passage in Bracton.

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•i. As long as the lands of such heirs remain in our hand, we will that they be quit as against all people of suits of courts and of all other services which may be demanded of them by reason of their tenements, and be quit also so long as they are in our wardship, of all *manner of obligations and demands which may be made upon them on account of their ancestors. And if any lands have been let to farm for term of years, or otherwise for a less term than term of life or in fee, such lands being part of the inheritance of the infants, we will that the farmers be ejected from the lands, saving to them their chattels found thereon, so that each lord may have the wardship of his fee. And when the heirs shall have accomplished their age, then the farmers shall have their action by our writ of covenant to recover the remainder of their terms, if they cannot recover it without writ.

5. There are other kind of tenures, as petty serjeanties, sokemanries, free farms, fee farms, burgages, ancient demesnes, free alms, free marriages, and villenages; to which fees no wardship appertains, but only nurture by him who shall be nearest of kin to the heir on the mother's side when the inheritance descends on the part of the father, or by the nearest of blood on the father's side when the inheritance descends from the mother. Such guardians are rather bailiffs than guardians ; for if they do not render a lawful account of the issues of such inheritances, at such time as the heirs choose to require the same, such guardians may be imprisoned and punished like other bailiffs, accord-

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ing to the penalty provided in our statute. *And in the case of such heirs no certain time is limited for their full age; but as soon as they have discretion to till land, measure cloth, count money, and to manage their trade, they shall be deemed of age; and the females as soon as they have attained discretion and have learned the management of household affairs.¹

¹ The older authorities fix fifteen years as the age of majority forsocage tenants, and apply the slicing test of ' discretion ' only to the children of burgesses or tenants in burgage. The following note may serve in some measure to show how the old rule in this respect was gradually set aside, and the age of twenty-one established as the period of majority for all classes. ' Of heirs in socage, the common age for males is sixteen years, and for females fourteen. This is so (Oyl), for having and administering their inheritance ; but not for aliening it conclusively (finalment) secundam quosdam : for they say that the writ of entry dum fuit infra cetatem supposes the age of twenty-one years. Others say that this age is given for knights' fees only, and that they are so long in ward in regard to the administration for fear of the aliening and dismemberment of their inheritance. Whence it follows, he who by law can and ought to administer, can by law alien ; but in socage the tenant at sixteen years of age can and ought to administer,—eadem ratione, to alien.' Note in MS. N.

Shortly after the time of this note, the question as to the power of alienation by socage tenants under twenty-one appears to have been settled in the negative ; »ⁿ^ in the following case, decided 13 Edw. III., the power of aliening a burgage tenement before that age is treated as resting upon special custom. ' In dnrn fuit infra cetatem in Gloucester, the tenant pleaded that the usage of the town is such, that when a man knows how to count 12rf. and to measure an ell of cloth, he is of age to alien his land,

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6. Grand serjeanty is a service due from a tenement, which service concerns the defence of the country ; as to be Marshal or to set our host in battle, or to find a man mounted and armed for the field ;^l so, to be the keeper of our goshawks,² or other like great services. Petty serjeanty is a service issuing from a tenement by performing to us³ some little service, when we are

and of such age was the demandant when he leased. And because the tenant did not state the age in certain, so that the demandant might answer it, it was awarded that the demandant should recover.' T. 13 Ed. III. cited Vet. Nat. Br. 128 ; Bro. Abr. Dumfuit. 3 ; Fitzh. Nat. Brev. 192 H. (note by Hale).

¹ As to the question whether this is great or little serjeanty, see Lit. Ten. s. 157 ; Co. Lit. 107 a. ; and Butler's Note, ib.

² This example does not agree with the description of grand serjeanty, as connected with the defence of the country. Some of the manuscripts remedy this inconsistency by reading estours, or estovers, so as to make the service that of guarding the king's stores or provisions. Abundant examples of tenure by the service of keeping hawks and falcons may be found in Blount's Tenures by Beckwith, pp. 263-280. In one case at least (p. 275) the service was connected with homage, which affords some presumption that it was considered a grand serjeanty. (See Bracton 79 (§ 6); Fleta 204 (c. 16. § 2); 207 (§19); Co. Lit. 86 a). And the estates held by such services were frequently of importance. The lords Grey of Wilton are stated by Camden to have held their manor of Acton by the service of keeping a gerfalcon for the king. Camdeii's Britannia by Gough vol. i. p. 315. In later times such tenures were classed as petty serjeanties.

³ This passage of Brittori appears to be the first authority for confining the term Serjeanty to tenures in capite. (See Lit. Ten. s. 161.) In Bracton, serjeanty is a tenure by a special or ex-

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about to take the field, amounting to half a mark or less, as are the services of bringing to us in field a bag, or a brooch,¹ or an arrow, or a bow without a string, or a pair of spurs or gloves, or some like service.

traordinary service either to the king or any other lord. And Britton in a subsequent chapter speaks of a grand serjeauty not held of the king in chief. (Post, c. iv. s. 31.) The words of Britton may also have given occasion to the distinction afterwards adopted, by which the term ' petty serjeanty ' was confined to ' small things belonging to war.' (Lit. Ten. s. 159.) The principal examples of minor serjeanties in Bracton are connected with the occupations of peace, as the serjeanty of riding with the lord from one manor to another, of holding the lord's court, or of carrying his precepts (portandi brevia). We may also see in Britton's examples the germ of Littleton's distinction of great and little serjeanty, that the one ought to be done in the tenant's proper person, while the other obliges him to nothing but a mere rendering or payment, as of a rent, (Lit. Ten. 153, 160.) In Bracton, serjeanties are called great and little, either with reference to their value (Brae. 87 b), or to the nature of the duty, as concerning the king's army or the defence of the realm on the one hand, and peaceable services or duties to inferior lords on the other. (Brae. 35 b.) And it would seem to have been Brae-ton's opinion, that all serjeanties in capite, whether great or small, brought to the king the right of wardship. (Brae. 87 b ; 35 b, 36.) The account given of great and little serjeanty and their incidents in the fragment of law, printed under the title of Statutnm de Wardis et Releviis (Stat. temp, incer.), is similar to that of Britton.

¹ Thomas Carnifex tenet de domino Rege in capite maneriuni de R. in coin. Ebor. per serjantiam inveniendi domino Regi in exercitu in Wallia unum equum, unum falcem, unam brochiarn, et unum saccum, &c.; et praedictus Thomas in misericordia pro injusta detentione.' Plac. Cor. 7 Ed. I. Ebor. cited in Blount's

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7. Sokemanries are lands and tenements which are not held by knight service or by grand or petty ser-jeanties, but by simple services, as lands enfranchised by us or our predecessors of our ancient demesnes.

8. Free farms are lands and tenements, whereof the nature of the fee is changed by feoffment out of chivalry, to be held by fixed yearly services, and in respect whereof neither homage,wardship, marriage, *nor relief can be demanded, nor any other service not specified in the feoffment. Fee farms are lands held in fee by rendering for them yearly the true value, or more or less; which rent if the feoffees cease to pay for two years together, an action thereby accrues to the feoff-ors, or their heirs, to demand the tenements in demesne ; for which tenements neither homage, wardship, marriage, nor relief can be demanded without specialty in writing.

9. Free alms is where land is given to God, and to some persons serving God, in pure and perpetual alms, for which the feoffors can demand no kind of earthly service, so long as the lands remain in the hands of the feoffees; the constitution of which alms is to be dulv observed. Land held in alms is when land or tenement is given in alms, some service being reserved thereout

Tenures, p. 49 ; Blount's Tenures by Beckwith, p. 137. See also Bracton, f. 36. The word brochia, which in several services reserved in tenures is connected with saccus, is conjectured to mean the instrument, either a pin, or a brooch or buckle, with which the bag of leather or canvas was fastened. See Blount's Tenures by Beckwith, p. 110, 133 ; Ducange Gloss, s. v. broca, broehia.

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to the feoffor. And as it is of free alms and of land given in alms so it is of land given in free marriage.

10. Burgage is a tenement in a city or borough or other place privileged by us or our predecessors ; and such tenements are devisable according as they are derived by purchase or inheritance, agreeably to the custom of the place.

11. Ancient demesnes are lands which were part of the ancient manors *annexed to our Crown, in which demesnes dwell some who have been freely enfeoffed by charter,—and these are our free tenants,—and others who are free of blood and hold land of us in villenage,—and these are properly our sokemen, and are privileged in this manner, that they are not to be ousted from such tenements so long as they perform the services which appertain to their tenements, nor can their service be increased or altered, so that thev shall do any other or greater services, or in any other way than as they have been used to do. And because such sokemen are the tillers of our lands, we will that they be not summoned any where to toil in juries or inquests, except in the manors to Avhich they belong. And because we will that they enjoy such immunity, the writ of right close is provided, which is pleadable before the bailiff of the manor for a wrong done by one sokeman to another, that bailiff may do the plaintiff right according to the custom of the manor by means of simple inquests. Nevertheless we will that in pleas of trespass and other personal actions, sokemen besum-monableand answerable as well as others.

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12. Villenage is a tenement of the demesne of any lord, delivered to be held at his will by villain services, to be cultivated for the use of the lord, and whereof livery is given by the rod and not by title of deed or by succession of inheritance. Neither wardship nor marriage nor other real services, as homage and relief, can be demanded from ancient demesne or villenages. *In the same manors of our ancient demesnes there are also pure villains both by blood and by tenure, who may be ousted from their tenements and deprived of their chattels at the will of their lords.

13. It sometimes happens that women at the time of the death of their husbands feign themselves with child by their husbands when in fact they are not, to the great damage of the heirs; in which case we will that the following remedy be ordained. When any one complains of such discreet, he shall have our writ to the sheriff of the district, commanding him without delay to cause to come before him and before the coroners in full county court the woman against whom the complaint is made; and it shall be inquired of her, whether she be with child, and by whom ; and if she says, by her husband who is dead, the sheriff shall forthwith cause to come discreet and lawful women to the number of six at least, who are to be sworn upon the holy Evangelists, that they will lawfully act and true presentment make of the articles wherewith they shall be charged 071 our behalf. Then let them be charged that they upon their oath search the woman who pretends to be with child by handling her belly

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and her breasts, and using all other means whereby they may be certified whether she is with child or not. Then they shall take her privately into a house, and inquire into the truth.

*14. If the women declare that she is with child, or they are in doubt whether she be or not, then the sheriff shall cause the woman to be placed in our castle or elsewhere in safe custody, so that no woman or other person who may be suspected of any fraud have access to her ; and there she shall remain at her own. charge till the time when she should be delivered, and no woman in the meantime shall go near her, unless she be of the lineage of the plaintiff. And if she have not a child within forty weeks after the death of her husband, or if she is not found to be with child, let her be punished by imprisonment and fine; and the chief lords of the fees shall forthwith take the homage of the heir without further delay.

15. If she is delivered of a child within the forty weeks, the child shall be admitted to the inheritance, unless the next heir can prove that such child w*as begotten by another man than her husband, as if he show that the husband was impotent, or that he was in prison or in another kingdom for two or three years before the child was born, and remained so until after the birth, without coming near his wife, or aver some other apparent presumption notorious to everybody. For in such cases we will not that the right heirs shall be disinherited by the wife's adultery.

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*16. If t\vo brothers, or other persons, offer themselves to do homage to their lord for the same inheritance, and one of them was born in marriage and the other before marriage, we will that in such case the lord shall admit to the inheritance him who was born within marriage, although he be younger than the other. And if any heir offer himself to do homage to his lord for the inheritance of his ancestor, whose father and mother were divorced by holy church by reason of the marriage between them being found unlawful, the lord shall not upon that account fail to take the homage of such children begotten in marriage, whether the marriage was lawful or unlawful.

17. If any heir is begotten by another than the husband of his mother, that is to say, at a time when it may be presumed that the husband might have begotten the child in matrimony, we will not that the adultery of the mother be a bar to the inheritance of the child. So, where a child begotten by another and imposed upon the husband as his issue, is brought up by the husband and owned by him as his heir, we will that such children be admissible to the inheritance, if it may be presumed that the husband of the mother may have begotten them. But if the husbands of such wives, who bring up as their lawful heirs children that were begotten by others than the husbands, were hindered by manifest infirmity or distance of place and time, so that evident presumption and common fame, as before mentioned, operates against the husbands having been capable of begetting those children,

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*although they choose to bring them up in their houses and to acknowledge them as their own, yet such children shall not be admissible to the inheritances. Neither shall those whom husbands shall find in their houses begotten by others, and whom they shall straightway remove out of their houses and disown as their issue. Therefore we will that every one in such case do openly disown and straightway cause to be removed such supposititious issue, as soon as he shall know of it. For after he has once owned the child to be his, and this fact is testified by the neighbourhood, he may never after disown it.

18. And if a complaint come before us from any right heir concerning a supposititious child so brought up and acknowledged as heir by any husband and his wife to the disherison of the right heir, we will straightway command the sheriff of the county, at the suit of the plaintiff, that he have the bodies of such husband, and of such a one his wife, and of such child whom they are bringing up, before our Justices at a certain day and place to answer to such plaintiff, who alleges himself to be heir to the same husband, why they do in disherison of the plaintiff bring up the aforesaid child and own him for their issue, which he is not. At which dav it will be necessary for the plaintiff to show some presumptions in his favour to make good his charge ; which if he cannot do, it shall be adjudged against him. And if by the proceedings in the plea between the parties judgment be given against the infant and for the plaintiff, the

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malice of the husband and of his wife shall be punished by imprisonment and fine.

*19. And if any child which is born a monster,—as one that has more than the proper number of members,¹ as three hands or- three feet, or a deficiency in the same, as no hands or no feet,—demands the inheritance of his ancestor, such children shall not be admissible to any inheritance, or accounted as children, but as beasts and monsters. Wherefore no one who has begotten them can by such issue claim title of freehold in the inheritance of his wife by virtue of the law of England.

20. And whereas it sometimes happens that the heir is an idiot from his birth whereby he is incapable of taking care of his inheritance, we will that such heirs, of whomsoever they hold, and whether they be male or female, remain in our custody, with all their inheritances, saving to ever}' lord all other services belonging to him for lands held of him, and that they so remain in our wardship as long as they continue in their idiocy. But this rule shall not hold with regard to those who become insane by any sickness.

21. When any one who has been in ward, and who ought to hold of us in chief, has reached the age of twenty-one years, if he demand the inheritance out of

¹ Bracton repeats in all the passages above cited, that an increase or decrease in the number of members not affecting the human form of the offspring, as where a child is born with six fingers on one hand, or only four, does not affect its rights, See Digest, li. i. tit. 6. 1. 14.

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our hands, or if any other heir of whatever age he be do the like, such persons must first, by solemn inquests taken by virtue of our writs, prove their age by their kindred *and by other lawful people of the neighbourhood where they were born,—to wit, whether they are of the full age of twenty-one years or not, and whether they are next heirs.

22. And if any one proves his age by good inquest sealed under the seals of the jurors and returned into our Chancery to be safely kept, then Are will that he perform homage and swear fealty to us, and obtain our writ to our escheator or to our sheriff, that ho cause him to have seisin of the lands which were in our hand, by the death of the ancestor of such heir, in his bailiwick. But if our escheator or sheriff perceives that fraud has been practised upon us in the aforesaid proof, he shall defer the delivery of seisin until we have taken an attaint against the twelve first jurors. And if they are attainted of a false oath, let them be punished as shall be mentioned in the chapter concerning attaints. And if they have been falsely accused, let the accuser be punished by imprisonment and fine, which may be great or small in proportion to the malice of the offender.

23. When the heir has obtained the seisin of the lands held of us, let him straightway have seisin of his lands held of the fees of others, without making fine to the lords, and without giving anything of his goods except his reliefs. And when he shall recover the seisin of his inheritance out of the hands of others, we

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will that his lands shall be delivered up to him stocked with ploughs and other stock at least as well as the lords found them. *And if the lords make waste, sale, destruction, or exile in such inheritances, before the heirs have proved their age, then the heirs may be aided either by our writs of trespass or of waste, or by assise of novel disseisin, to be brought by themselves or their friends according as is contained in our statutes, in which the penalties are ordained. All guardians shall however be excused from liability in respect of accident by fire or water, or other like waste, where they shall not be guilty of any malice.

CHAPTER III. Of Marriage.

1. "When any one holding of us in chief shall die, leaving a male heir of full age, we will that such heir may marry where he pleases without paying a fine to us or to any other. But if such heir be under age, then the marriage of him shall belong to us, and he may not marry without our leave under pain of heavy forfeiture.

2. With respect to female heirs, where an inheritance wholly or partly held of us in chief descends to several daughters or their issue, as one heir, the eldest shall do homage to us for all her parceners, and the others shall do homage to the eldest. "We will never-

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theless have the marriages of them all of whatever age they may be, as often as they are to be married, so that they cannot be married without our leave. This prohibition was first made, lest the female heirs of our land *should marry with our enemies, whose homage we should then be obliged to take, if the heirs might marry at their will.

3. With respect to marriages belonging to others than us, we will that the lords give or offer marriages to the heirs male before they have completed their age. And if they have not tendered them marriage while under age, then the lords shall be barred of any action to demand anything for their marriage. But if the lords have tendered them marriage without disparagement, and the heirs will not consent thereto, the penalty provided in our statute shall take effect. Marriages shall be tendered to female heirs before they be fourteen years old, otherwise the lords shall be debarred of their right.¹

4. If any female heir of tender years be married where she is disparaged, then we will that, if she was

¹ Our author omits to state the modification of the law introduced by the Statute of Westminster I (3 Ed. I. c. 22), by which the right was granted, or confirmed, to lords to retain the wardship of female heirs for two years after they had reached the age of fourteen years, and to offer them a suitable marriage within that time. If the heiress refused the marriage, the lord might hold the lands till she attained twenty-one, and for a further time until he had received the value of the marriage. Of. Littleton, Tenures, s. 103 ; Coke Lit. 79 a ; 2 Inst. 202 ; Lord Darcie's Case, C Co. Rep. 71.

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of fourteen years or upwards, so that she was able to consent to marriage, no penalty shall be incurred ; but if she was under that age, the penalty shall be this, that the lord shall lose the wardship for that time, and make satisfaction to the friends of the person so married, and that all the profit received for the marriage shall be restored to the friends and kindred of the woman, to be improved for her use. *And if she be married to any of his villains, the lord who gave her away shall be punished by imprisonment, until due amends be made by appointment of the kindred of the wife ; and such persons shall afterwards be put to ransom for the malice.

5. We forbid any lord to force an infant in his ward, male or female, to take wife or husband. And when any heirs, male or female, have once been married by their lords in whose wardship they were, or have once made satisfaction for their marriage, if they be to marry again, they shall for ever after be at their own disposal, provided they hold nothing of us. So also, where they have been married in the lifetime of their fathers.¹

¹ ' An infant under age, married in the life of his ancestor, conies into ward of his lord. His wife dies. His lord tenders him another wife, whom he refuses. Qu. Whether forfeiture of marriage lies or not. Surely not; for no force of law can compel the heir to be bigamous.' (Note in MS. N.) This question is resolved in the same way by Babington, the king's attorney, in the seventh year of Henry VI, the same reason being given.—' Par le prise del seconde feme efflcitur bigamits, a qe la L.ey ne luy coherte.' So Vet. Nat. Brev. 93. b. But if the heir

[II, *170.

6. When two or more lords claim the marriage of one infant, it is impossible for all of them to have it, although the ancestors of such infant may have held of all by knight service ; in which case let it be adjudged according to the priority of the feoffments, so that the marriage shall be awarded to that lord by whose ancestor the earliest feoffment shall be found to have been made ; and let the deforceor be punished according to the tenor of our statutes. If no priority of feoffment is found by the inquest, as where the ancestor of the infant purchased of all the lords atonceatthe time of the Conquest, or in like cases, the judgment shall be in favour of him who shall be in seisin of the infant.

*7. Where any one who has no right has seised the body of the heir within age, and sold the marriage of such infant to another, and he is impleaded, in such case the person impleaded may vouch to warrant, so that each offender may bear the penalty of his own trespass.

was married by his ancestor, infra annos nubiles, and the wife died before the age of consent, the lord, it is said, should have the marriage. (Y. B. 7 Hen. VI. f. 11 b.) Tins latter statement is adopted by Fitzherbeit (Nat. Brev. 143 M.), and Coke (Co. Lit.. 79. b.) It will be remembered that bigamy (in the ancient and proper sense of the word) involved the loss of the benefit of clergy. (See Ante, 1. 1. c. 5. s. 5, p. 28.) On this account it was, according to Lord Coke, a disparagement for a lord to marrj an heir to a widow, ' whereby he should by reason of the bigamie have lost the benefit of his cleargie, whereby he might save his life.' (Co. Lit. 80. b.)

II *170.]

CHAPTER IY.

Of Homage.

1. Homage is a legal bond, whereby a person is bound and obliged to warrant, acquit, and defend his tenant in his seisin against all persons for the services due from the tenements which he holds of him, and whereby, on the other hand, the tenant is obliged and bound to return to perform to his lord the services due from the tenement, which he holds of him, in service or in demesne, and to keep his faith towards him inviolate. And the lord is thereby as much bound to his man as the man is to his lord, revt once only ex-cepted.

2. Nevertheless if any one be vouched by reason of homage, and the lord offers to prove that the tenement for which he is vouched was transferred from the blood of the first purchaser by feoffment or some other conveyance, in such case the tenement shall be charged to vouch his feoffor or the feoffor of his ancestors.¹

¹ Note, that homage ancestral, and homage purchased by attornment made in the king's court, give warranty and none other, without an especial clause of warranty, or what is equivalent thereto, as the xvord dedi; as, where B held of A by homage before the statute [Stat. Quia Emptores, 18 Ed. I,], and afterwards has given the land to another, doing the services t0 the

[II, 170 b.

3. Homage binds two persons by their mutual consent ; and by their mutual consent it may be released and undone, but not by the assent of one of them only,

*4. When any heir is desirous of being admitted to the inheritance of his ancestor, and there is no doubt of his being the nearest heir, we will that he in the lirst place do homage to his lord, or offer to do it,—in respect that is to say, of his lands held by knight's service,—and that the lord receive his homage, unless there is a reasonable impediment. This may arise in the case of homage tendered for a fee not held by knight's service or grand serjeanty, except where the custom of the place is contrary ; and sometimes on account of the condition of the tenants, as where the hold is villenage.

5. On the part of the tenant again, homage is some-chief lord. For all purchases are now made by dedi, and with an especial clause of warranty ; and the purchaser may thus vouch the feoffor or his heirs, who are bound to warranty by deed. Therefore he who holds by specialty ought to vouch by specialty, and he who holds by homage ancestral, ought to vouch by the same. And note, that homage is ancestral from the time of the Conquest, or before the limitation of the writ of right, or from the great grandfather of the lord, of whom the great grandfather of the tenant held, and so from heir to heir on each side. When there are fewer degrees, the tenant cannot vouch by homage without specialty.' (Note in MS. N.) Cf. ante, liv. ii. cap. 3. s. 8. See the later doctrine as to homage ancestral in Littleton, Ten. Sect. 143-152, with Coke's Commentary, Co. Lit, 100. b. See also 2 Inst. 275.

II, *171.j

times refused, and that rightly, as where the lands are given in free alms, or are held by petty serjeanties or by free socage ; and sometimes on account of the persons of the lords, as where they have married female heirs, and demand the homage in their own names, whereas their wives ought to demand it; so likewise \vhere the lords demands homage before their tenants are in seisin, or before they are themselves seised of their inheritance ; and when it is demanded by those who have no right to demand homage, as termors and others.

6. When an inheritance descends to any heir who holds of us and of several others, in such case the allegiance of the seigniory shall belong to us, and we shall not be barred by reason of the priority of any other feoffor. But if such heir does not hold of us, the allegiance of the seigniory shall belong to that lord who has the best right to his marriage.

*7. Whereas damage might accrue to us and other lords of fees in course of time, if several persons, to whom an inheritance descends as to one heir, should perform their services to the lords according to their portions, we will that every lord, if he pleases, may take the homage of all the parceners, male and female, as of one heir, such homage being considered as only one homage by reason of the unity of right, so that no lord may lose the wardship or marriage of any tenants in chivalry of his fee; but that one of the parceners may, if the lord choose, swear the fealty to perform to him the services of the whole inheritance, so that

[II, *171 I.

neither we nor any other may receive the services of our fees by parcels nor by different hands ;^J and in such case the other parceners shall do fealty and the services of their portions to their chief parceners.

8. Although an infant under age do homage, yet we •will not have him take the oath of fealty until he be of full age. And although it is commonly said, that the act of an infant, done under age, ought not to be held binding, yet we will that every man and woman admissible to an inheritance, of what age soever they be, do homage to their lords according to the statute of the Great Charter; *so that the lords shall not have the profits of wardships or marriages on the one hand without being bound to the risk of warranties on the other.

9. All those who hold by knight's service in their own names may do homage; but persons in religion, and clerks, and others holding in others' names, ought not to do homage for the tenements so held, as in the case of tenements which they hold in the names of their churches, where the persons are named last in the feoffments, as appears by the charters, which begin thus: I give to God and the church of such a place, and to the persons therein serving God. In these gifts

¹ It appears from a subsequent section, that it was not considered altogether safe for a lord to avail himself of the right of taking the entire service by the hands of the eldest parcener, inasmuch as his title to the wardship of the descendants of the junior parcener might be thereby endangered. See below, s. 23.

II, *172.]

therefore the feoffment is made first to God and his Church and afterwards to the persons therein serving God. Which persons cannot do any homage, but only take the oath of fealty. And such persons do sometimes make a payment to their lords of double the yearly value of their services at the end of every thirty years, in remembrance of relief, as is the common custom in Normandy.

10. He who is to do homage ought to seek out his lord from reverence to him; and when he has found him let him tender his homage, with his hands clasped, before good people, who, if there be occasion, may bear witness thereof. If the lord refuses to take his homage, let him seek him again fifteen days after, and tender it to him as before, and so for three times. *And if he wrongfully refuse it three times by the testimony of good people, then we will that the lords be foreclosed of such homage, and that the tenants may perform their homage to the superior lords of the fees. And when another lord has thus received his homage, we will that the services be performed to him ; and yet, if the tenant be impleaded concerning his tenement, the first lord shall be bound to warranty. And if the next superior lord refuse his homage, let it be tendered from lord to lord until it comes to us; which homage we may safely take.

11. If any lord fraudulently refuses or ddlays to take the homage of his tenant, in order, perchance, that he may not be held to warranty, the tenant in such case may keep back relief and all kinds of services due from

[II, *172 I.

him to the lord until he has taken his homage, so that the lord shall have no seigniory over him until he has received him as his tenant; and no tenant in such case shall be obliged to make satisfaction for arrears of services before the homage has been received.

12. And if such tenants are not willing to transfer their homage to another lord, let them be aided by our writ to the sheriff of the county, *to command the lord that he justly and without delay take the homage of such a one who holds or claims to hold of him by knight's service; and that, if he omits doing it, he be at a certain day and place before our Justices to show cause why he has not done it. At which day both may be essoined ; and if the lord make default, the process against him shall be by great distresses, as in personal pleas, until he shall appear.

13. When the lord appears and has to answer to the action of the plaintiff, he may say that he refused to take his homage, because he is not next heir to the ancestor whose heir he claims to be, inasmuch as he has an elder brother alive beyond sea or elsewhere, who is nearer heir to the same ancestor; or because he is a bastard; or because he is the feoffee of one who has committed felony, or who is appealed of a felony from which judgment of death, outlawry, or abjuration may ensue, and which feoffor is still living; or by reason that he or some of his ancestors entered into the tenements which he claims to hold of him by a defective entry, as by intrusion, disseisin, or by default after default made in our court, or by means of one who

II, *173.]

held the tenements for term of life, or in villenage, or at will, or for term of years, or in mortgage, or in fee tail, or in ward, or by means of a bailiff, or in like cases; or because the tenement for which he tendered homage, was given in marriage, and therefore he expects the reversion until the appearance of heirs; or because the tenant has no heir of his body, *wherefore the defendant contends that the tenant's portion ought still to accrue to him if the tenant should die without any heir of his own;^: or because this same tenant has done some act by which the lord is discharged from receiving his homage; and such exceptions, if true, shall be allowed.

14. Therefore it behoves every lord, before he takes the homage of his tenant, to examine whether he is the right heir, and concerning all the circumstances named in the above exceptions, and that he know for what tenement and for how much lie ought to take homage, and of how much the tenant is seised in de-

¹ These two justifications of refusal of homage refer to the tw o cases of tenants in frank-marriage, and so-parceners ; the feoffor in the one case and the elder parcener in the other being justified in refusing the homage until the third generation. See Glan. li. 7. c. 3 ; li. 9. c. 2 ; Brae. 21, 21 b; Fie. 190, 191. The reason of this was, that the acceptance of homage might prejudice his right of succession to the inheritance, upon the principle laid down in Glanville : ' Nemo potest simul esse haares et dominus.' See Glan. li. 7. c. 1. Compare Littleton's Tenures, s. 19, 20, whei'e it appears that in later times the tenant in frank-marriage was quit of all service, except fealty, until the succession of the issue in the fifth degree.

[II, *1735.

mesne, and of how much in service, so that no one may be deceived as to the risk which he runs in respect of warranty.

15. Again, the lord, when he comes into court, in answer to the allegation of the plaintiff, that his father held of him and did homage to him, or to his father or other ancestor, by such certain services, may say that he held nothing of him, nor did an}' homage to him, nor ought to hold anything of him. And if he offers to make this good by his champion, he shall be admitted thereto if the tenant chooses to accept it; but if he chooses to put himself upon the great assise, it shall be charged to say, whether the lord, of whom the tenant complains, has the better right to hold the tenement in demesne, or the tenant to hold it of him. For it may well be, that the plaintiff or his ancestor did homage to the ancestors of the same person of whom he complains, and yet never had seisin of the tenement or of the fee for which they performed the homage ; *orif they had seisin, yet they had it by their own intrusion, and not by induction of any feoffor at a time when the tenement was vacant; in which case homage may lawfully be refused, on account of the right of action which the lord has to demand the tenement in demesne by reason of the defective entry of the tenant or his ancestors.

16. When any tenant resists doing homage to his lord, the lord should distrain for the arrears of the services if any are due. And if the tenant causes the distress to be replevied, the lord, where he cannot count of his

II, *173 &.]

own seisin, shall have his remedy by writ of customs ,and services.¹ And if the tenant has sworn fealty to his lord, although he has done no other service to him, he cannot disclaim holding of his lord in any court of record, without an action immediately accruing to the lord to demand his fee in demesne. And if the lord

¹ ' If the tenant refuses homage, the lord may distrain his fee for the services which are in arrear. But he should make avowry in the first place for custom, as well as for service ; as for homage and fealty, which are not properly services, but customs depending upon service. For homage is appurtenant to escuage, and is a security for whatever belongs to knight's service ; and fealty is appurtenant to rent, and is a security for what belongs to socage. Wherefore the security should first be demanded between lord and tenant, as between others who make contracts. And the lord may make avowry of his own seisin, or that of his father or grandfather, against the tenant by whose hand, or that of his father or grandfather, he was seised ; so, in more distant degrees, provided he can assign seisin of his ancestors within the time limited in writs of novel disseisin. But where he can only say that his ancestors, or himself, were seised of the homage or fealty, without seisin of escuage or rent, lie cannot say that he is disseised ; for rent gives seisin, and not fealty, nor homage. But the lord ought not to distrain but for arrears of rent or service, of which he can allege seisin as aforesaid ; which seisin of rent gives him continuance of possession, and authority to distrain for the arrears, and for the fealty by reason of the service which is in arrear. And if he cannot allege seisin as aforesaid, he cannot make avowry for homage or fealty, although he have received them within the time limited, nor consequently recover by assise of novel disseisin for the replevin of him who should be his tenant, but shall be driven to his writ of customs and services.' (Note in MS. A⁷.) Compare Brae. 83 b, 84 : Pie. 211.

[II, *174.

has been seised of any service of that fee by the hand of any actual tenant, although he was not seised by means of him who replevied the cattle, the lord shall nevertheless recover by assise of novel disseisin.

17. When homage is to be done, it should be done in this manner. The tenant should tender his homage to his lord with his hands joined in token of subjection and reverence; and the lord, in token of warranty acquittance and defence, ought to hold the tenant's hands between his own. And where homage is to be done to us, it ought to be done with these *words: ' I become your man for the fees and tenements which I hold and ought to hold of you, and will bear you faith of life and limb of body and chattels and of every earthly honour against all who can live or die.' Then the lord, whosoever he may be, whether ourself or another, and whether male or female, clerk or lay, old or young, ought to kiss his tenant, whether he be poor or rich, ugly or handsome, in token of perpetual affiance, and obligation of strict friendship. And when any one has done homage to us, every other lord shall be foreclosed of the allegiance of seigniory.

18. Where homage is to be done to any other liege lord than us, let it be done in these words: ' I become your man for the fees and tenements which I hold and ought to hold of you, and particularly for such a tenement named by certain quantity and certain bounds, and for such fees, and will bear you faith of life and

ii, *m i.-]

limb above¹ all people, saving the faith which I owe to the king and his heirs.' The lord may thus know for how much he will be bound to warrant his tenant.

19. If homage is to be performed to any other than to a liege lord, the tenant shall say thus: ' I become your man for the fees and tenements which I hold and ought to hold of you, *and in particular for certain land or a certain tenement in such a vill,' as is above-said, ' and I will bear you faith above all people, saving the faith which I owe to the king and to my other lords.'

20. When any one is to do homage for a pension ex camera,² as a servant may do to his lord, as his servant and not as his man, the words shall be simply these: ' I become your man, and will bear you faith above all

¹ In Bracton and Fleta the word is contra, and a misreading may be suspected. Compare the form in s. 17. But outre is found in all the MSS. which have been consulted, both here and in the corresponding places of ss. 19, 20.

² Compare Bracton, 79 f> (§ 6); Fie. 20 (.§ 18. 19); and see post, s. 81. Bracton says, that no homage was done for a rent ex camerd, where no land was bound : Fleta, that it ought not to be done, arid if it be done, no right of wardship or marriage arises. The general rule is laid down by Glanville, and repeated by Bracton : ' Pro solo dorninio fieri non debent honuigia alioui excepto Principe.' (Glan. li. 9. c. 2 ; Brae. 79 b, § 6). But it is mentioned by Bracton and Fleta, that it was the common practice for champions to do homage to their principals, which could only be ratioiie dominii: and see post, s. 31. This probably arose from the form in which the wager of battle was tendered : ' et hoc promptus sum probare per hunc liberum meum hominem.' (Glanc. li. 2. c. 3.)

[II, *174*.

people as long as the homage shall endure, saving the faith which I owe to the king and to all my other lords.' And such homages may be released by waiver of the pensions and by release of the obligations. And a recent change in the law has had this effect, that homages taken by feoffors to the prejudice of the chief lord are not binding or of any force.¹

21. As soon as homage is performed, those who are bound to do any services to the lords for the tenements shall straightway take the oath of fealty,—if to vis, in the following form, laying their hands upon the Holy Gospels: ' Hear this, ye good people, that I, sucli a one by name, faith will bear to our lord king Edward from this day forward, of life and limb, of body and chattels, and of earthly honour, and the services which belong to him for the fees and tenements which I hold of him, will lawfully perform to him as they become due to the best of my power, so help me God and the Saints.'

22. If fealty is to be done to any other liege lord than to us, then let it be done in these words : ' Hear you this, my lord John, that I, Peter, from this day, from, this day forward, will bear you faith of life and limb, saving my faith to the king and his heirs, and the services, which belong to you for the fees and

¹ This passage is important, as shewing the age of Brittcm. The statute referred to as a ' new constitution ' can be no other than the statute of Westminster the third, Quid emptores terra-rum, passed in the 18th year of Edward I, A. D. 1290. See Introduction by the Editor.

II, *175.]

tenements which I hold of you, lawfully will perform to you as they become due to the best of my power, so help me God and the Saints.'

*23. If any one refuses to do fealty to his lord, the lord may distrain his tenant until he does it. But no parcener or his issue shall swear fealty except to the eldest parcener, nor to him, unless the lord consents; but it shall be in the election of the lord to take his services by the hands of one or of all the parceners. For otherwise he might lose the wardships and marriages of the other parceners, by reason of the words in the writ of ward, where the plaintiff says that the ancestor of the infant, in respect of whom he demands wardship, was his tenant, and performed to him knight's service ; which would be false, if the service was done to any other than to him.

24. From parcener to parcener fealty is sworn thus: ' Hear you this, John, that I, Peter, will bear you faith from this day forward, and the services due for my portion of the inheritance which was Theobald's, our common ancestor's, lawfully will perform to you as they become due to the best of my power: so help me God and the Saints.' And to the other lords thus: ' Hear you this, my lord John, that I, Peter, will bear you faith from this day forward, and the services which belong to you for the fees and tenements,'—and so on, as before, fealty of life and limb being never sworn except to us and to liege lords.

25. For allegiance is of so high a nature, that if two lords are at difference, the tenant must perform his

[II, *1T5 ».

service to his liege lord against his other lord in his own person, and must perform his service to his other lord by attorney. And homage is so strong a bond between lord and tenant, that none may without judgment *or the mutual consent of the parties recede from the homage, so long as the tenant shall keep in his hands the tenements or fees, for which he is bound to perform such service; neither may the lord do anything which touches the disherison of the tenant or other great wrong to his damage in life or limb, nor the tenant to the lord after performance of homage, without by the very act breaking the league between them and extinguishing the homage.

26. If the lord be convicted by judgment of this great wrong, it shall be awarded that he be forejudged of his seigniory for ever, and be otherwise punished according to the offence, and that the tenant perform his homage to his superior lord. And if the wrong be convicted in the person of the tenant, let it be awarded that he lose the tenement or fee for which he did homage.

27. And we will that if any tenants disavow their lord, or disclaim holding of him in a court bearing-record, the lord, on account of the homage and the oath of fealty which the tenant has broken, shall have an action to recover the tenement of such tenant of his fee in demesne, by the following writ: ' Command such an one that justly and without delay he surrender to such an one so much land, or so many fees, with the appurtenances in such a place, which the aforesaid

II, *175 c. 175 d.]

*such an one detains from him, and for which he did homage and service to him, and which ought to be his escheat, inasmuch as the aforesaid such an one, contrary to his homage and the oath of fealty which he had taken to him for the same, maliciously to his disherison disclaimed him for his lord and the holding of anything of him, and that, if he omits doing it, he be at a certain day and place before our Justices to show why he has not done it.'

28. This writ need not be pleaded by descent, but may be determined by a jury and inquest as to the fee and the quantity thereof. For the lord cannot properly count by descent by reason of the ancestors of the tenant, who have been always in possession. And whether he plead by descent or not, we will not have the action determined by battle or great assise; but we allow, if there be occasion, that the tenant may put himself on a jury after the manner of a great assise by these words, to wit, whether he has most right to hold this fee, or the tenement demanded, in demesne, or he who demands it, and to whom this same tenant, or some of his ancestors whose heir he is, did homage and service for the same, and afterwards, contrary to his homage and fealty, maliciously disclaimed him. And let judgment be given according to the verdict.

*29. The lord has likewise the same action against his tenant, where the tenant has performed to another that homage which he ought to have done to him, if it be found that there was fraud or malice in the act; or if he has done homage wrongfully to another after he

[II, *175 d.

had rightfully performed homage to him. But if the tenant has done it by the distress of another, or by folly and not by malice, in such case we will that the lords and the tenant be made to appear in our court, and it shall be there discussed which has the better right to the homage. And he who is in the right shall recover, and he who is in the wrong shall be punished.

30. Whereas battle may not be joined between lord and tenant during the homage, we will that if any tenant would appeal his lord of felony or otherwise fight with him, that he surrender to the lord the fee or tenement which he holds of him, so that the homage may thus be released. For homage cannot in any other way be released.

31. If homage be done without the possession of any fee or tenement, that homage shall be of no force. Neither let homage be done for those fees or tenements from which no wardship or marriage arises.¹ Neither let homage for grand serjeanty, although it

¹ This rule was not of universal application, since homage was sometimes due from socage tenements, where neither wardship nor marriage could be claimed. Brae. 77 b; Fie. 307 (§ 17, 18). The rights of wardship and marriage were inseparably connected, as appears in the argument used in the following note: ' An infant under age marries a wife, to whom after marriage a knight's fee descends. Qu. Shall the lord have relief, or wardship until the husband's age ? Some say wardship, because he must take his homage, and he ought to have the wardship of his tenant holding of him by homage. But wardship belongs where marriage belongs ; and the marriage of the infant, even if he were unmarried, could not belong to the lord. Therefore the wardship does not belong to him.' (Note in MS. N.)

JI, *176.]

be performed, be of any force, unless the serjeanty be held of us in chief,—no more than homage done for a rent ex camera, or by a champion of other servant.

*32. For homage once properly performed between tenant and lord endures as long as they both live. And although homage fail by the death of the lord, yet it remains entire in the person of the tenant. For although the tenant does homage to the heir of his lord, and so from heir to heir, yet he does not thereby perform several homages, but renews several times the same homage. Therefore it is sufficient for a tenant to take up his land by relief once, although he does homage several times. But if several homages become due on the part of the tenant, as from heir to heir, we will that wardship or relief follow every homage. One tenant nevertheless may perform several homages for different tenements at one time, or at several times, to the same lord ; but when homage has been once performed between lord and tenant, it ought not to be done again between the same persons for the same tenement.

33. Neither will we that the lord attorn the homage and service of his tenant against the will of the tenant to whomsoever he pleases, and particularly to the mortal enemy of the tenant, or to one who has nothing whereby he can warrant him if need be. But in other cases w^Te are willing it should be so far permitted, that if a tenant will not of his own consent attorn to hold of another lord according to the wish of the lord, the feoffment shall be made

[II, *1T6 I.

*by fine levied in our court between the lord and his feoffee, of the service of the tenant. By virtue of which fine, we will command the sheriff of the county by our writ of judgment to cause the tenant to come into our court to shew what tenements and what fees he holds of the lord and by what services. When he appears, if he says that he holds nothing, and does not claim to hold anything of him, it shall be awarded that he go quit, and that the lord be in mercy ; and the lord may then obtain his remedy as above mentioned. If the tenant say that he holds of the lord certain tenements or fees, and by certain services, let it be awarded that he be released from the first lord and his homage transferred to the third party, to whom his lord has attorned him.

34. If the tenant say that he has done homage for the tenement, which homage is not yet extinct, and demand judgment whether he ought to perform two homages to two persons for one tenement in the lifetime of his first lord, from whom he does not wish to separate; in such case we will not have it awarded that any do homage against his will to another than him to whom he first did it in the lifetime of his first lord. But if he can give no reason why he ought not to do fealty to him to whom he is attorned, let it be awarded that he take the oath of fealty to him; and if he will not do it of his own accord, let it be awarded that the purchaser distrain the tenements or the fees whereout the services should issue, until he shall do fealty to him. For whosoever grants service, grants

ii, *m.]

*a right to distrain. And when the feoffor dies, we will that the homage be immediate!}⁷ extinct in the persons of the heirs of the feoffor, and take place anew in that of the purchaser according to the force of the fine levied in our court.

35. And if such purchaser distrain the tenant for homage or for other service, and the tenant cause his distress to be replevied, and in his pleading says that he wrongfully took his cattle, inasmuch he does not claim to hold anything of him, yet notwithstanding such replication, we will not that he cease to distrain; for in this case distress and disclaimer may well stand together.

36. Nevertheless there are cases, in which such tenants may avail themselves of the exception, that they ought not to be attorned against their consent, as where a lord, for the purpose of burdening his tenant and discharging himself, wishes to attorn his tenant to one who has nothing whereby he can warrant him, or satisfy him for the value, if need be. In this case the exception shall be allowable to every tenant, so that it shall not be in the power of any lord, on account of the smallness of the service, to waive his fee, in order to be discharged from the risk of warranty.

in, *m 6.

*CHAPTEK V.

Of Reliefs.

1. If any tenant is of full age at the time of the death of his ancestor whose heir he is, let him immedi-asely go and find his lord, and do him homage and relieve his inheritance which lies dormant and unsupported upon the death of his ancestor. "Which relief is reduced to a certainty among the articles of the Great Charter.

2. But if anyone has been so long in ward of his lord after the death of his ancestor, that the lord has taken any sort of profits of his inheritance in however small a quantity on account of wardship, the heir shall be quit of relief. And although homage be often renewed on the death of several lords, yet no tenant shall be obliged to relieve his land more than once in his lifetime, and his heir another time, and so from heir to heir, as above is mentioned in treating of homage.

3. And although any one alien his tenements, yet the lord of the fee may not demand of the feoffee any relief. For we will that all purchasers shall be quit of relief for their lives in respect of the tenements purchased. So likewise, all those whose lords are changed. And those who hold for term of life only.

IT, *1TS.]

And those, who marry women, who were some time in ward of their lords, that is to say, for the inheritances of their wives. And as we will not that any under the age of twenty-one years shall give relief, so *neither will we that relief be paid to any under that age, nor before the lord is seised of his inheritance, nor before the lord has restored to the tenant the charters of his inheritances, if in his hands.

4. Although the law does not require relief in the case of any tenement other than a fee of chivalr\^r or grand serjeanty, yet for tenements which are not of such fees, where the service is fixed, we will that every tenant give to his lord in acknowledgment of his seigniory the amount of one year's rent, so that the lord in that year shall have as much as double his tenant's rent. And in such acknowledgments the same rule shall be observed as has been mentioned concerning reliefs, that none make the acknowledgment before he is of age to take the oath of fealty,— nor more than once,—nor until his lord be of full age and in seisin of his inheritance. And for tenements held in fee-farm or in free alms, let nothing be given, except what is specially expressed in the deed.

5. "With respect to heriots, we will that no tenement, nor any heir, be bound. For the gift of an heriot is a payment made, on account of the death of the tenant of some lord, of the best beast found in the possession of the deceased, or of one not the best, according to the appointment of the dying person, to the use of the lord ; whch payment does not at all concern the heir or his

[II, *178 5.

inheritance. Neither is it to be compared with relief ; for it arises more out of favour than of right, and is more paid by villains than by freemen.

*CHAPTEK VI.

Of Mortdancester.

1. It is always the duty of heirs, when they come to their inheritances by succession, to permit their lords to make a simple seisin,¹ without doing any sort of damage, whereby they may be recognised as lords. And if such heirs are under age, and ought to hold by knights' service, let the lords first take their homages, and afterwards have the wardship of their fees. If the lords find their fees vacant, they may seize them simply in right of seigniory, and fully in right of the lawful heir, whosoever he may be. And this last clause shall be a justification for all such lords delaying

¹ This is the rule laid down by Bracton (f. 252 6), and confirmed by the Statute of Marlborough, c. 16. Lord Coke, in commenting upon this statute, interprets ' simple seisin' to mean relief. But although in all probability it soon became the practice to be contented with this recognition of seigniory, the words of the statute, as well as those of Bracton, appear rather to contemplate a formal possession of the tenement, it being expressly provided that the lord was not to take or remove anything from the land, or to eject the heir. It will be seen that in the next sentence of the text, the simple, or formal, seisin of the lord, is contrasted with the full, or beneficial, possession of the heir.

II, *179.j

to take the homage or to yield up the inheritance to any other than the lawful heir.

2. If any lord through malice or negligence shall take the homage of one who is not the right heir, where the lord well knows that there is a nearer heir, or has reason to suspect it by another offering himself as right heir, or by common report of the neighbourhood, and after receiving such homage, shall deliver to him seisin of the inheritance in demand, and the right heir shall then bring an assise of Mortdancester against the tenant, *and the tenant shall vouch the lord to -warranty by reason of the homage which the lord received of him ; we will that in such case the lord shall be bound to warranty and to exchange, although he alleges by exception that he took his homage saving every person's right, since he took the first step to disinherit the right heir. But if no other had claimed the inheritance, and the lord had had no suspicion that-another was heir, it would have been reasonable that such a condition in the taking of homage should have been allowable; and in such a case we will that such conditional receptions of homages shall be allowed, but in no other cases.

3. If any lord be in seisin of his fee, and be doubtful of several persons who demand the inheritance and offer themselves as heirs, whose homage he ought to take, such lord may keep himself in the inheritance, without claiming anything but the seigniory, until he be certainly informed which is the nearest heir to the deceased ancestor.

[ii, *i7»a.

4. If it happens that the elder brother and right heir is out of the country at the time of the death of his ancestor, and the younger brother finds the inheritance vacant, and thrusts himself in, claiming the inheritance as right heir ; in such case the lord may take the homage of the younger brother, under condition that seisin of the inheritance be delivered to the elder brother or his *issue whenever he shall appear to demand his inheritance, whoever be then tenant. For if the lord eject the younger brother after he has been seised, he shall recover by assise of Novel Disseisin, to hold nevertheless according to the condition aforesaid. And if the lord is in seisin, and keeps out the younger brother, who proceeds against the lord by assise of Mortdancester, and it is found by the assise that he has an elder brother, seisin shall be awarded to him under the before-mentioned condition. But if a bastard keeps himself in seisin, where no heir offers himself for the inheritance, in such case it is lawful for the lord to eject such bastard, except where his long possession through the negligence or weakness of the lord constitutes a valid title to the freehold.

5. Therefore it behoves every lord to seize his fee without delay upon the death of his tenant, if he finds it vacant. And if the heir is of full age, and in seisin, and will not suffer the lord to have seisin nor acknowledge him as lord ; in such case the lord may lawfully keep himself in seisin, together with the heir or the person who pretends to be heir, but he must not eject him; and if he can do nothing more, he may disturb

II, *180.]

such heir in the enjoyment of his seisin until *he acknowledges him as his lord. When he shall acknowledge him, let the lord forthwith take his homage and security for his relief, and his oath of fealty, and that he will lawfully perform to him the services which belong to his inheritance ; and let his inheritance and the free management thereof be then restored to him without delay.

C. If the lord obtains the first seisin, the heir being of full age, arid the lord will not acknowledge him as heir, his first remedy is by assise of Mortdancester. And when any person wishes to proceed before our Justices for an inheritance thus detained from him, let him first find security by known pledges to prosecute his plaint, if he has such pledges ready ; and if he has not, we will command the sheriff of the county to take security ; and if the plaintiff be so poor that he cannot find security, the pledging of his own faith shall be sufficient; and such writs as his suit requires shall be forthwith granted to him. And if the plaintiff is under age, he need not find security to prosecute his plaint, nor need any term be mentioned in his writ.¹

7. As this assise is limited between certain persons, so likewise it is confined within certain degrees ; for assise is to be granted "of the death of the father, mother, uncle, aunt, brother, and sister, and not ascend-

¹ That is, no term of limitation need be named, since, if his immediate ancestor died seised, the minority of the heir is itself a proof of the recent accruer of his title. See Bracton, f. 254.

[II, *180 5.

ing higher, as to the grandfather, nor descending lower, as to the nephew ; so that neither of the death of the grandfather nor of the death of the nephew alone,¹ nor in any higher or lower degree is this assise ever allowed. And the more clearly to see of what ancestors this assise lies, let four degrees be set down, of which father and mother make one degree, uncle and aunt on the father's side the second degree collateral, uncle and aunt on the mother's side the third degree collateral, and the child of the father or of the mother, the son's own brother or sister, make the fourth degree in the right line descending from the father and the mother. And this fourth degree is divisible into three, as appears by the above figure.

8. And if the son is to institute this assise against any stranger in blood, being tenant, then this assise may well be had of the death of his father, or of the death of his mother, and not in the reverse case.² For this assise always supposes priority in the ancestor, or at least equality; and requires to be brought by the lower of the higher, ascending and not descending, and also from equal to equal, as of the death of the brother by the brother or by the sister, and of the death of the sister on behalf the brother or sister. And if any one in a more remote degree is

¹ This word ' alone' appears to have reference to the exception afterwards stated concerning the case of a joint assise. See s. 10.

² This appears to imply the possibility of a father claiming as heir to his son. though not by this assise. See post, 1. vi. c. 4, s. 4, and note there.

II, *181 ft.]

aided bv this assise, it will be rather in consequence of some other person who makes the assise, than for himself, as shall be afterwards mentioned. Therefore \ve will that if any separate assise be brought to trial concerning the death of any person not within these two degrees, the assise shall fall, unless some person is joined who may make good the assise.

9. Neither by this assise nor by any other possessory writ shall any proximity of blood be tried ; that is to say, between demandant and tenant claiming by the same descent; but between all strangers in blood the assise shall lie so far as it may extend. And such kindred as cannot be aided by this assise shall have their remedy by our writs of Cosinage, of Ael, Aele, Besael, and Besaele; which writs do not determine anything of the mere right, but spring out of this assise, and determine by means of juries the right of possession. The assise however takes place among privies of blood claiming by different descents, as between two brothers by different fathers or by different mothers. *For the brother begotten by any other father is an entire stranger, so far as concerns the demanding of anything upon the death of the father or ancestor of the other brother, and so of two brothers born of different mothers. But this assise does not lie between a legitimate brother and a bastard seised of the other's inheritance, because the proof of the proximity of blood cannot be tried by any possessory plea.

10. Sometimes two or three persons in different

[II, *182.

degrees are joined together, and obtain their remedy by assise of Mortdancester, where the plea partakes of the nature of an assise of Mortdancester and of Cosinage ; as in the case of an inheritance which descended from one stock to two persons, constituting a single heir, by different lines, as to a daughter on the one side, in whose person the assise of Mortdancester takes place, and to a grandson by another daughter on the other side, in whose person the writ of Ael lies, being in a degree to which assise of Mortdancester does not extend. In the which case we will that the recognitors of the assise come and make recognisance upon their oath, whether the father (or mother) of the daughter, and the grandfather (or grandmother) of the grandson was seized in his demesne, &c. And what is said of the seisin of the grandfather or grandmother as regards the grandson may also be said and reputed for law concerning their brothers and sisters, uncles and aunts of the daughter, and cousins¹ to the grandson, since they are in the same degree with the grandfather and grandmother; but higher the assise of Mortdancester does not ascend. *11. And because there is more speedy remedy in the assise of Mortdancester than in the plea of Cosinage de Ael, we will that such plaintiffs have relief by assise of Mortdancester, whether the parties wish to join in one plaint or not, so that the daughter shall not be able to proceed by an assise without naming in the writ the grandson or his issue in what-¹ That is, as I understand, great-uncles and great-aunts.

11, *182 5.]

soever degree found; nor can the grandson or his issue proceed by writ of Cosinage in the lifetime of the daughter who is his co-parcener and nearer by one degree or more. For the nearest person makes the assise, and draws to itself the person in the more remote degree.

12. There are other writs somewhat resembling this last double action, as of the death of the uncle or aunt in a partible inheritance¹; wherein every case the nephew ought to be joined in the same action with the uncle and the aunt in an assise of Mort-dancester, and this action is not mixed with Cosinage ; and the recognitors of the assise ought to come and make recognisance upon their oath whether the uncle or the aunt on the father's or mother's side of the nephew demandant on the one part, and the brother or the sister of the uncle or the aunt on the side of the other demandant, whose heirs these two demandants are, was seized in his or her demesne.

13. Where the inheritance is not partible, and the uncle brings an assise of Mortdancester of the death of his father or mother, uncle or aunt, *and the nephew by the brother brings a writ of Cosinage for the same tenement against the same strangers, or if both have instituted an assise of Mortdancester against the same stranger, that is to say, the nephew,

¹ It will be remembered that in early times, by common custom, tenements in socage were partible or divisible among the sons. See Glan. 1. 7, c. 3 ; 1. 13, s. 11; Brae. 76 ; Fie. 30«

(§2).

[II, *183.

upon the death of his uncle or aunt, and the uncle •of the same nephew, upon the death of his brother or sister; in both these cases the nephew is to be received to the inheritance before the uncle. And if one of them either by assise or by Cosinage demands against the other an inheritance descending from the same stock ; in such case it shall be adjudged in favour of whichever party is in possession, if the tenant claims by the same descent as the demandant does, although the demandant may have a better right; and let him afterwards proceed by writ of right, by which writ alone the proximity of blood and the right can be tried.

14. If any stranger, as, for example, the chief lord or other, deforce parceners of their inheritance, and some of them are diligent in demanding their inheritances and others negligent, it behoves the diligent, whether one or more, to make his plaint and purchase his writ in the names of all the parceners who have not their portions, by reason of the unity of the right which remains united until division ; after which any party who will may sue; and those who choose to sue shall have remedy by this assise of the death of their common ancestor.

*15. Whereas this assise does not lie between privies of blood, and in particular between parceners who take as one heir, we propose, before more is said of the assise, in part to explain by what actions, and by what writs, and how one parcener may compel his other parceners to make severance of their inheritance which

II, *183 5.]

they hold in common, so that each may know his several, and that each may have his reasonable portion according to his due; and if any one be deforced of the whole by his parceners, how and by what writ he may have redress, and by what writ he may recover part if he be disseised of part.

CHAPTER VII.

Of a Mixed Action.

1. There is a kind of action Avhich may be tried in our court, called a mixed action, inasmuch it concerns the person against whom the demand is made as well as the thing demanded; and therefore is pleadable by personal distresses and by real also, as by the great and little Gape. Of such kind is an action to sever a thing held in common, wherein each party is plaintiff and defendant, as where strangers without affinity or kindred have something to be divided between them which they hold in *common, as in the case of neighbors who proceed by action to divide some tenement between them, so that each may have severalty. Another kind of mixed action is that called in the Imperial law actio familial herciscundw,¹ which takes place'

¹' Nota hie de actione que dicitur Familia Herciscunde.' (Note in MS. N.) The word herciscundce, (from herciscere, 'to divide.') which is scarcely found except in this connection, ap-

[II, *1S3 I.

between those who have a common inheritance to divide.

2. Nevertheless two actions¹ do not arise as soon as-the inheritance or other tiling is held between such parceners in common, but from the time that any of them begins to compel the others to a division. And this action obtains among several parceners and coheirs, as where several brothers ² or sisters or their issue hold an inheritance in common as one heir, and wish to proceed for a division, so that every one may have his portion in severalty. It also lies between parceners who are as one heir in respect of a common tenement which they are desirous of having divided, and which is divisible by reason of the tenement. These actions are called mixed, because either party is plaintiff and either defendant, that party being plaintiff who-first complains.

pears to have been taken for a proper name by our author or his transcribers.

¹ The word cestes, ' these,' appears to be wanting at the beginning of this sentence. In Bracton it is, ' Sed hse duse ac-tiones ;' but in Flota we find, ' Sed duse actiones.' Accepting the omission, we should perhaps translate the words, ' double or mixed action.' As to the relation of this work to Fleta, see the Introduction by the Editor.

² The words ' brothers or ' seem to have crept into the text by mistake. The two cases intended in this and the following clause are, first, where a tenement is divisible by the common law among sisters ; secondly, where a tenement is divisible by custom (par la resoun del tenement) among brothers. See the corresponding passage in Bracton and Fleta.

II, *184.]

3. In these two cases, if any parcener demand against another his reasonable share, and the tenant or tenants make default, there shall be taken into our hand, out of the entire common inheritance, the portion which belongs to the plaintiff ; *and thus the distress will be real and not personal. And such shall be the proceeding in a plea derationabili parte, which takes place where one is denied to be a parcener and is deforced of his share. But where all are acknowledged to be heirs and parceners, there should be no plea de rationabili parte, although an action may arise on account of one of them having less for his share than he ought to have.

4. It is proper therefore in such case, as soon as the parceners have performed their homage to their chief lords and are desirous to have their inheritance divided between them, so that each may know his several portion, that an extent should first be taken, and that according to the extent partition should be made between them. And if such parceners would have our aid in making the division, whereby an oath is taken to do it lawfully, then at the request of any plaintiff parcener we will command the sheriff that he do by knights and other good men of the county, in the presence of the parceners, if they will be there, cause an extent to be made of all the lands and tene-. ments which were of such an one (the common ancestor of the parceners), in such a county ; and according to this extent livery shall be made of his share to every parcener.

[II, *184 I.

5. The extent shall be made in this manner.¹ First let an inquest be taken upon the oath of the jurors, how much the buildings in the capital manor, and the moats, vivaries, hays, pools and other *fisheries are worth by the year, clear of outgoings. Then let the true value be inquired of the gardens, curtilages, dovecots, and the other issues within the court; then how many fields and closes of arable land there are in the demesne, and how many acres each close contains, and how much every acre is worth by the year ; and how many acres of meadow there are in demesne, and how much every acre is worth by the year; and how many acres there are of every kind of pasture, and sufficient for how man\^r beasts, and what kind of beasts, and how much the pasturage of one beast is worth by the year according to the kind of beast. Under this article is comprised as well common of pasture for sheep, hogs, and goats, as pasture several for oxen, cows, and heifers, and for studs of mares and colts in woods or parks, or in enclosures or elsewhere in their severals. Afterwards let inquiry be made concerning the said woods, how much each acre is worth by the year, to keep as wood, or to assart and improve ; and how many acres the parks and the other demesne woods contain ; then, of the value of the reasonable estovers from land belonging to others, how much they are worth by the

¹ This section much resembles the ancient summary, called Extenta manerii, printed among the Statuta temporis incerti, in the Statutes at large.

II, *185.]

year, as wood for building, fencing, and burning, and rights of fishing in another's river, and of digging turfs in another's soil or in some common soil and other necessaries. Afterwards let inquiry be made of *honey, and of pannage, and of mast of acorns, nuts, and other kinds of fruits, and of all manner of profits arising from forests, woods, moors, heaths, turbaries, wastes, and every other kind of commodity issuing from commons, how much they are worth by the year. Then, of rents issuing out of the fees belonging to the manor, and of rents due to the manor for common granted in the fees of the manor, and of all other sorts of rents. Next, of mills, vivaries out of the manor, and several fisheries, how much they are worth by the year. Then, of pleas and perquisites of courts and of franchises, markets, warrens, rabbit-warrens, traverses, tolls, customs, and views of frank pledge, and of the yearly issues of every kind of franchise: and then, of the advowsons of churches, how much each church is worth by the year; and of suits of freeholders, how much each suit is worth upon every default. It should also be inquired concerning aids, presents, heriots, and every kind of annual compliment. And afterwards, of villains, and of the villenages let every house be separately extended, and then their closes, meadows, and pastures ; also their rents, services, talliages, and customs.

6. The whole amount of the extent shall be entered on a roll, together with a verdict. And for every marc in the value of a church, one shilling shall be put

[II, *185 L, 1SQ.

in the extent; *so that if the church be worth one hundred marcs a year, the yearly value shall be extended at a hundred shillings; and according to this valuation those who do not keep the advowson of the church shall be compensated in land. For an advowson is not divisible ; but if it were to be sold, the reasonable price would be according to the annual value of the church. This extent being so made, shall be enrolled and sealed under the seals of the sworn extenders.

7. If the parceners are present, they shall be asked whether any of them can show cause why any person who calls himself a parcener ought not to have his share of the inheritance. And when it is declared how many are to divide the inheritance, or where no cause can be shown why all should not share, or if none of the parceners appear, and the summons is proved, let the inheritance be forthwith divided into so many parts as there are parceners, according to the extent, so that each portion may be severed from the other by divisions and bounds.

8. Afterwards let the parcels be entered and specified in several scrolls, and let those scrolls be delivered to some layman who knows nothing of letters or of the contents, and let him deliver one scroll to each parcener ; and according to the lot of those scrolls let each parcener take to his share. *And if any of the parceners has improved or damaged the land while it was in his hands, either in part or in the whole, let such damage be taken into account in the extent against the person who did it, and likewise let his par-

II, *186.]

tion be increased according to the improvement he may have made.

9. If the sheriff be negligent in this matter, we will send our precept to the coroners of the district, or we will assign by our letters patent some Justice to execute it. For such delivery of shares touches very nearly upon the right of property by reason of the assignment of boundaries; and it is therefore necessary that such partitions be discreetly, properly, and lawfully made.

10. And whether such deliveries are made by lot, or by election, the eldest parcener choosing first, and so one after the other according to their ages, let the parcels be presently imbreviated on a roll, that is to say, what each parcel is, and how much, and between what bounds the parcel is assigned, and to what parcener by name, so that all the parcels of each share be enrolled,¹ as well demesnes as fees and services and dowers or other lands held in any manner for term of life, winch are to revert after the death of the tenants, and to whom these lands are to revert, and to which of the parceners the services of such tenants are assigned. And he to whom any service is assigned towards his share shall forthwith take the homage of the tenant;

¹ ' Upon a division being made, each parcener lias a like title to his several. This title, when the division is made by the king's mandate, is a title of law, and requires to be vouched by record. But division made by assent of parties requires to be averred by specialty of writing, upon which issue shall be joined (le averre-nient se joyndra).' Note in AIS. N.

[II, *186 I.

and he who has to await the ^reversion shall have assigned to him in the meantime a portion of some other tenement according to the value of the land which is to-revert to him, to be held until that land falls in.

11. If any one of the parceners die after the partition, not having any heir of his body begotten, then his share shall accrue to the other parceners or their issue, to be divided between them by equal portions, yet not by succession of inheritance, for none of them is heir to the other, but by right of accruer.¹

12. And if any one of the parceners is not contented with the partition, we will cause the proceedings and the record to come before our Justices of the Bench ; and the plaintiff shall there state what errors have been made, and the errors shall there be redressed by a new extent if need be. And after assignment of the shares, either by lot or election, let seisin be executed by judgment of our court.

¹ ' "Whereas it is said that the parceners shall have the proportion of the one who dies by right of accruer, our companions say (si dient nos compaygnons) that this is not so. For after division, each parcener is inherited of his portion (est enhite de sa, purpartie), as if he had purchased of a stranger ; and if he had purchased of a stranger, and died without issue, his brothers or sisters would be his heirs.' (Note in MS. N.) The statement in the text, that the portion is taken per jus accrescendi, is derived from Bracton, who however does not say that the parceners are not heirs to each other.

II, *187.]

CHAPTEK VIII.

Of the Division of Jnheritcmces.

1. All inheritances do not fall into partition or hotchpot, to be divided among parceners; as the capital manors or capital castles of counties or baronies, and as parks, vivaries, and advowsons of churches. *But where the inheritance is divisible, the eldest brother or the eldest sister by right of seniority shall have the capital mansion for his share, unless this mansion be the head of an earldom or of a barony, as is said above, by reason of the right of the sword, which does not bear division, and of the risk that the strength of the realm may be diminished thereby, which strength was originally constituted and divided by counties and baronies.

2. But if there are several capital houses or castles of earldoms or baronies, then partition may be made of such castles or houses, yet so as to leave them in their entirety, saving to the eldest the prerogative of choosing first. For in such cases the rights of the sword are preserved uninjured and undis mem beret 1, which would not be if one capital mansion of an earldom or barony was divided among several persons. For if there be but one castle or one house as head of the earldom or barony, that shall remain entire

[II, *1S7 5.

to the eldest, so that a proportionate allowance be made to the others according to its value, out of the remainder of the inheritance.

3. if there are several capital mansions, then let the eldest have the first choice after the inheritance is divided into parcels, and the second next, and so of the other degrees, descending from degree to degree. And if there are more parceners than there are capital mansions, then let that parcener who has no house fallen into his share have the value of a house delivered to him out of the entire inheritance. *And if there are more capital houses than parceners, let the houses in excess be divided among them in equal portions, unless the parceners agree that some or all of them shall remain entirely with one or more of the parceners, and that an allowance in proportion to the value be made to the others. And if there is but one capital mansion, let not that be subject to partition, provided that there is some other part of the inheritance out of which satisfaction can be made to the parceners of the value of their proportions, supposing that the inheritance is partible by custom. If otherwise, it will remain entirely to the eldest.

4. With regard to lands in ancient demesne, the ancient custom of the place shall be observed ; for in some places it is held as a custom that the inheritance is divisible among all the children, both brothers and sisters; in some places, that the eldest son shall take all and in others, that the whole shall go to the youngest brother.

II, *188.]

5. Sometimes the hall of a house is divided into two halves, or into several parts ; and sometimes it is separated from the chambers, and so of other buildings, as shall be mentioned in treating of pleas of dower. But advowsons of churches, servitudes of soil, and such kinds of incorporeal things, are from their nature incapable of partition. Nevertheless several advowsons and several rights may admit of a partition among parceners, where each right remains entire. *But the advowson of a single church ought not to be divided, although sometimes the body of the church may have become partible or divisible in ancient times by reason of different baronies. For if a church is void by the death of the parson, and several parceners are patrons as one heir and one bodv, bv reason of the unity of

•J ' t! •/

their right, no one has a right to present to such church without the others, until the advowson be wholly assigned to one of the parceners as part of his share, or so limited by agreement between them, that one shall present one turn, the second the next turn, and so on in succession. And if any one before such agreement offers to present by reason of seniority, the clerk shall not be admissible to institution, so long as any of the parceners oppose the presentation.

6. The like of servitudes; for if a tenement to which a servitude is due falls in partition and division among parceners, the servitude is neither diminished nor altered, but remains in its unity so far as regards the land charged. And although a servitude is divided into several parts, as regards the land to which it is due

[II, *1S8 b.

by reason of the plurality of parceners, and although there may be several entire rights thereto, yet the land shall not be more burdened than it wa's before the partition, and thus the servitude shall remain in its unity.

7. There are some parts of an inheritance which will not admit of a division, *and therefore ought to be wholly assigned to one of the parceners, satisfaction being made to the others according to the value out of the remainder of the inheritance. Sucli are vivaries, fisheries, hays, and parks, provided there are other hereditaments whereout satisfaction may be made in proportion to the other parceners. Nevertheless the parties may come to terms, and it is allowable, if they so agree, that one of them shall have one draught or one fish, or one beast in the park, and the second another, and a third the third and so on.

8. With respect to land or other hereditament before given with any of the parceners in frank marriage, the usage shall be this ; that if she to whom the land was given in marriage chooses to share in the inheritance whereof their common ancestor died seised in demesne as of fee, she shall yield up and relinquish that which was before given her in marriage, and it shall fall into hotchpot with the remainder of the inheritance, and then she shall take her share according to the chance of the allotment with her other parceners. And if she keeps to her estate in marriage for her share, still it must be seen whether this is worth more than belongs to her proportion or not. For if

II, *189J

more, a measurement shall be made,—and this whether the land came by descent from the part of the father *or of the mother or by purchase,—and the excess shall be divided by equal portions between all the parceners. The same usage shall hold where a mother in her widowhood gives to any of her daughters all her estate held in marriage. But where the feoffment is absolute, partition never takes place. For we will that such gifts by pure feoffment without mention of marriage shall be held as valid iri the case of privies of blood as they would be in that of a stranger. And if either father or mother or both give to one of the parceners in marriage all their inheritance, in such case the inheritance sliall not fall into partition, because nothing remains to be divided between the other parceners.

9. If the eldest die in the lifetime of her father or mother from whom the inheritance is to descend, the second daughter shall have her prerogative of election, although the deceased have left behind her a son or a daughter lawfully begotten, because the eldest did not survive her ancestor, whose heir she would have been. We have next to deal with the action de rationabili parte.

[II, *189 b.

CHAPTER IX. Of the Plea de Rationabili Parte.¹

1. When any of the parceners is deforced by his coparceners of all his reasonable share of the inheritance of their common ancestor, the proper proceeding is by the writ close de rationabili parte, and not by assise of Mortdancester. *For this writ, and no other, tries and determines the right of possession between parceners and coheirs, because at the instant of the ancestor's death every parcener has the same undivided right, and the mere right descended to each equally,— the youngest as well as the eldest,—which is not the case between brothers or other kindred, not being parceners, where the mere right descends sooner to one than to the other.

2. There are other kind of writs de rationabili parte, for there is one concerning the possession, and three concerning right. The possessory writ does not lie between strangers, but between parceners only, and it is a close writ. Its effect is to require an answer as well from several to one as from one to several, wherefore he deforces them of the reasonable share

¹ The greater part of the materials of this chapter appears to be in Fleta, though not always in the same order, and not in Bracton.

II, *19().]

belonging to them of the inheritance which was of such an one their father, mother, brother, sister, uncle, aunt, grandfather, grandmother, or cousin, who lately died, as it is said. Or if any parcener be in a more remote degree than another, then thus: of the inheritance which belonged to such an one, father of the aforesaid Ilelice, and grandfather of the aforesaid Peronel, and so on according to the degrees.

3. This writ lies only between parcener plaintiff and parcener tenant, and extends as far as the time limited in an assise of Novel Disseisin, and not further, by reason of the word ' lately,'^l which does not suppose a longer time. And this writ extends to every ancestor in the ascending *line as far as the great-greatgrandfather, and in the descending to the nephew in the lowest degree, so far as the time aforesaid will permit. If the plaintiff in this writ count in the right, the writ is abatable for the reason which shall be given in the Chapter of Cosinage.

4. There are three writs of right, and these ought to be open writs, and are pleadable in the court of the chief lord. Two of them lie at any time either within or after the term aforesaid ; whereof one serves to recover a part of the inheritance, where a parcener is seised of part, and lacks the residue of his reasonable share ; and the other serves to recover the appurtenances, in all or in part, where he is deprived of them bv his coparceners. The third writ of right takes place after the lime aforesaid, to recover the whole

¹ The Latin word in the writ is miper. Fie. 315 (§ 40).

[II, *190 I.

of the reasonable share ; as, where one parcener is de-forceor, and the coparceners negligently omit to demand their portions beyond the time limited in an assise of Novel Disseisin; for thenceforth such sleepers shall be foreclosed of their recovery by the close writ dt> rationabili parte, so that they shall never recover against the parcener deforceor but by writ of right patent tie ratiomtbili parte • in which writ exceptions lie as in the great writ of right, but not battle, nor great assise, by reason of the nearness of blood.

5. When the close writ is obtained, and surety found to prosecute, and the summons made and proved, in case the tenant parcener *or parceners make default, although the action seems to be personal, because no certain thing is demanded, yet no attachment shall be made except by the great Cape, of the bulk of the inheritance to the value of the share of the plaintiff.

6. If several parceners are tenants in common or in proportions, and the writ does not comprise them all, the writ is thereby defective and abatable. For their right is so far one, that one ought not to answer without the rest on account of contribution. And if any one of them do so, it shall not prejudice the other parceners tenants. And where several parceners are plaintiffs, unless each makes his plaint separately, the writ shall be abatable, because such a writ obtained on a joint plaint cannot lead to a judgment that every one .shall have his reasonable share. In this plea there lies

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neither view, nor voucher to warranty, nor abatement oi' writ for non-tenure.

7. When the parties are come into court, the de-forceor may plead that the land is not partible ; or that the plaintiff hath no right in his demand because he is not of the blood ; or, although he be of the blood, yet he ought not to have any share, or to be a parcener with the tenant for a certain reason ; or although he should have been a parcener, yet he was excluded from the succession by the form of gift of his ancestor.

*8. If any one who was enfeoffed of all or a part of the inheritance by the common ancestor of the parceners is impleaded thereof, he shall vouch to warranty, not one only, but all the parceners ; and if he do not, and the voucher be challenged, the tenant may lose by his foolish voucher. For since there is only one right, it would be unjust to make one of the parceners answerable for the entire right, and to oblige him to make warranty or exchange without the rest of the parceners making contribution according as belongs to each of them ; for else he would not retain his reasonable share. Nevertheless where one alone is vouched, and he enters into warranty without demanding aid of his parceners, the other parceners, if he miscarry, shall not be bound to contribute to make up his share.

9. Although the issue of one of the sisters be begotten in matrimony by a villain, yet such issue shall not thereby be barred from recovering his reasonable

[II. *191 I.

share from his aunt. But felony, bastardy, and the like general exceptions, may bar such plaintiffs from, recovering their proportions.

•CHAPTER X.

Of Summons, and other proceedings in the Assise of Mortdan cester.

1. The writ of Mortdancester being obtained according to the nature of the plaint, and the patent produced to our Justices, we will that, inasmuch as assises of Mortdancester and Novel Disseisin are pleadable only in the counties where the tenements lie, our Justices, upon sight of our letters patent, shall set a day to the plaintiff, and afterwards give notice by their letter to the sheriff of the county on what day and at what place in the county they will come to hear the plea. Then let the plaintiff take that letter and our writ close and carry them to the sheriff, and keep the patent by him until the day of plea.

2. The sheriff having received our writ, and taken pledges to prosecute, if required by our writ, shall forthwith cause jurors to be chosen of the neighbourhood by the assent of the parties, if they agree. And when they are chosen, let two freemen, terre-tenants, be enjoined to summon these jurors in their proper persons, as shall be mentioned in the chapter concerning summons in the writ of right. And the sheriff shall command them to summon the jurors to be at a

II, *192.]

certain day and place before our Justices, to make recognisance, whether such an one is dead, and whether he died since the time named in our writ seised of the tenement in such a vill in his demesne as of fee, and whether such plaintiff is his next heir ; ^nd that in the meantime they view the tenement, as before has been mentioned among the proceedings in novel disseisin, so that every juror *in all particulars be distinctly warned, fifteen days at least before his coming into our court, upon what point he ought to inform himself. And let the summoners be charged to be there on the same day to prove their summons ; as is the rule with all summoners upon every summons.

3. Upon the day named the parties may be essoined de malo vcniendi; and if the plaintiff is essoined on the first day, and the tenant offers himself, then another day shall be given to the tenant and to the plaintiff's essoiner ; at which day if the plaintiff does not appear to warrant his essoiner, the writ shall abate, and it shall be awarded that the tenant go quit without day, and that the plaintiff and his pledges to prosecute be in mercy. And if the plaintiff appears, and the tenant causes himself to be essoined de malo veniendi, it shall be allowed, if he is of full age, and another day shall be given to the plaintiff and to the tenant's essoiner; so that in this assise one essoin de malo veniendi lies for each party, and no more essoins are allowed, although there be several demandants or several tenants where they demand or hold in common. But let no esso