- II: Coke’s Speech and Charge At the Norwich Assizes
- (preface, Written By Robert Prickett)
- The Lord Coke, the Preface to His Charge Given At the Assises Houlden In Norwich, the Fourth of August, 1606.
- ¶ Here Followeth the Words of His Charge In Order.
- III: Excerpts From the Small Treatises
- A. Book of Entries
- The Preface of Sr. Edward Coke, Knight Lord Chiefe Justice of England of Pleas Before the King Himselfe to Be Holden Assigned, and One of the Lords of His Majesties Most Honorable Privie Councell.
- B. the Compleat Copyholder
- Sec. XXXIII.
- C. Little Treatise On Baile and Mainprize
- The Conclusion With Advertisment.
- IV: Excerpts From the Institutes
- A. the First Part of the Institutes
- The Preface.
- Section 1 Fee Simple
- Section 2 Fee Simple
- Section 3 Fee Simple
- Section 4 Fee Simple
- Section 5 Fee Simple
- Section 7 Fee Simple
- Section 8 Fee Simple
- Section 9 Fee Simple
- Section 10 Fee Simple
- Section 11 Fee Simple
- Section 12 Fee Simple
- Section 21 Fee Tail, Part 2
- Section 69 Tenant At Will, Part 2
- Section 80 Tenant By the Verge, Part 3
- Section 96 Escuage, Part 2
- Section 108 Knight’s Service, Part 6
- Section 138 Frankalmoin, Part 5
- Section 170 Tenure In Burgage, Part 9
- Section 199 Villenage, Part 18
- Section 342 Conditional Estates, Part 17
- Section 366 Conditional Estates, Part 41
- Section 372 Conditional Estates, Part 47
- Section 412 Descents, Part 27
- Section 464 Releases, Part 20
- Section 481 Releases, Part 37
- Section 723 Warranty, Part 30
- Section 728 Fee Warranty, Part 35
- B. the Second Part of the Institutes
- Deo, Patriae, Tibi.
- Magna Charta,
- C. The Third Part of the Institutes
- Deo, Patriae, Tibi.
- Cap. I. of High Treason.
- Cap. II. of Petit Treason.
- Cap. III. of Misprision of Treason.
- | Cap. IV. Felony By Compassing Or Conspiring to Kill the King, Or Any Lord Or Other, of the Kings Counsell.
- Cap. V. of Heresie.
- | Cap. VI. of Felony By Conjuration, Witchcraft, Sorcery, Or Inchantment.
- | Cap. Lxii. of Indictments.
- D. The Fourth Part of the Institutes
- Deo, Patriae, Tibi.
- Cap. I. of What Persons This Court Consisteth.
- Cap. VII. the Court of Kings Bench, Coram Rege. 1
| Tenant in Fee simple is hee which hath Lands or Tenements to hold to him and his heires for ever. And it is called in Latine, Feodum Simplex, for Feodum is the same that Inheritance is, and Simplex is as much to say, as lawfull or pure. And so Feodum simplex signifies a lawfull or pure Inheritance. For if a man would purchase lands or tenements in fee simple, it behoveth him to have these words in his purchase, To have and to hold to him and to his Heires: for these words (his Heires) make the Estate of the Inheritance. For if a man purchase Lands by these words, To have and to hold to him for ever; or by these words, To have and to hold to him and his Assignes for ever: in these two cases hee hath but an estate for terme of life, for that there lack these words (his Heires) which words onely make an Estate of Inheritance in all Feoffments and Grants.
In Latine Tenens, is derived of the verb Teneo and hath in the Latin five significations. 1. It signifies the estate of the Land, as when the Tenant in a Praecipe of land pleads, Quod non tener, etc. this is as much as to say, That hee hath not seisin of the Freehold of the Land in question. And in this sense doth our Author take it in this place: & therefore he saith, tenant in fee simple is hee which hath lands to hold to him & his heires. 2. It signifieth the Tenure of the service whereby the lands & tenements beene holden, and in this sense it is said in the Writ of right, Quae clamat tenere de te per liberum seruitium, &c. And in this signification hee is called a Tenant or holder, because all the lands & tenements in England in the hands of subjects, are holden mediately or immediately of the King. For in the law of England we have not properly, Allodium, That is, any Subjects Land that is not holden, unlesse you will take Allodium, for Ex. solido, as it is often taken in the Booke of Domesday: and tenents in Fee simple are there called Alodarii or Aloarii, And he is called a Tenant, because hee holdeth of some superior Lord by some service. And therefore the King in this sense cannot be said to be a Tenant, because hee hath no superior but God Almightie; Praedium domini: regis est directum dominium cuius nullus Author est nisi Deus. And as Bracton saith, Omnis quidem sub eo, & ipse sub nullo, nisi tantum sub Deo. The posessions of the King are called Sacra patrimonia. & Dominica Coronae Regis. But though a Subject hath not properly Directum, yet hath hee utile Dominium. Of these Tenants our Author, speaketh in his second Booke. Also Tenere signifieth performance, as in the Writ of Covenant, Quod teneat conventionem, that is, That he hold or performe his Covenant. And likewise it signifieth to be bound, as it is said in everie common Obligation, teneri & firmiter obligari. Lastly, It signifieth to deeme or judge, as in 38. Ed. 3c. 4. It shall be holden for none (that is) judged or deemed for none, and so wee commonly say, it is holden in our Bookes. And these severall significations doe properly belong to our Tenant in Fee simple. For he hath the estate of the Land, he holdeth the land of some superiour Lord, and is to performe the services due, and thereunto he is bounden by doome and judgement of Law. Of the severall estates of Land, our Author treateth in his first booke, and beginneth with Fee simple, because all other estates and interests are derived out of the same.
Fee commeth of the French Fief, (i)praedium beneficiarium, and legally signifieth Inheritance, as our Author himselfe hereafter expoundeth it. And Simple is added, for that it is descendible to his heires generally, that is, simply, without restraint to the heires of his body, or the like. Feodum est quod quis tenet ex quacunque causa, sive sit tenementum, sive redditus, &c. In Domesday it is called Feudum. (a) Of Fee simple, it is commonly holden, that there be three kinds, viz. fee simple absolute, fee simple conditionall, and fee simple qualified, or a base fee. But the more genuine and apt division, were to divide fee, that is, Inheritance, into three parts, viz. Simple as absolute, Conditionall, and qualified or base. For this word (Simple) properly excludeth both conditions and limitations, that defeat or abridge the fee.* Hereby appeareth, that fee in our legall understanding signifieth, that the land belongs to us & our heires, in respect whereof the owner is said to be seised in fee, and in this sense the King is said to be seised in fee. (b) It is also taken, as it is holden of another by service, and that belongeth onely to the Subject; Item dicitur feodum alio modo eius qui alium feoffat, & qod quis tenet ab alio, ut si sit qui dicat, talis tenet de me tot feoda per servitium militare. And Fleta saith, Poterit unus tenere in feodo quoad servitia, sicut dominus capitalis, & non in Dominico, alius in feodo & dominico, & non in servitio, sicut libere tenens alicuius (c) And therefore if a stranger claims a Seigniorie, and disteine and avow for the service, the Tenant may plead, That the Tenancie is extra feodum, &c. of him (that is) out of the Seigniorie, or not holden of him that claimeth it, but he cannot plead Hors de fon fee, unlesse he take the tenancie, that is, the state of the Land upon him. Of fee in the first sense our Author treateth in this first Booke; and as is taken in the second sense, in his second booke: and of the third you shall read in our Author, Sect. 13, 643, 644, 645. and plentifully in our books quoted in the margent.
“Lands or Tenements.”
Here is to be observed, That a man may have a fee simple in three kinds of hereditaments, viz. Reall, Personall, and Mixt: Reall, as Lands and Tenements, whereof our Author here speaketh: Personall, King Edward the first in the thirteenth yeare of his Reigne,Concessit Edmundo fratri suo charissimo, quod ipse & haeredes sui habeant ad requisitionem suam in Cancellaria nostra & haeredum nostrorum Justi-|-ciarios ad placita forestarum quas idem Fraternosterhabet ex dono domini Regis Henrici parris nostri secundum assiss. forestae tenend; &c. In this case the grantee and his heires had a personall inheritance in making of a request to have Letters patents of Commission to have Justices assigned to him to heare and determine of the pleas of the forrests, and concerneth neither lands or tenements. And so it is if an Annuity be granted to a man and his heires, It is a fee simple personall, & sic de similibus. And lastly hereditaments mixt both of the realty and personality. As the Abbot of Whitbie in the County of Yorke having a forrest of the gift of William of Percie founder of that Abby, and by the Charters of King John and of other his progenitors, King Henry the third did grantAbbati & conventui de Whitbye quod ipsi & eorum successores in perpetuum habeant viridarios suos proprios de libertate sua de Whitb. eligend’ de cetero in pleno com’ Eborum prout moris est ad responsiones & presentationes, faciend’ de transgressionibus quas amodo fieri continget de venatione infra metas forestae suae de Whitbye quam habent ex donatione Willi. de Percey, & Alani de Percey, filii ejus, & redditione & concessione domini Johan. quondam regis Angliae patris nostri & confirmatione nostra coram justiciariis nostris itinerantibus ad placita forestae in partibus illis & non alibi sicut viridarii forestae nostrae hujusmodi responsiones&presentationes facere debent, & consueverunt. Et si contingat aliquos forinsecos qui non sunt de libertate predictorum Abbatis & conventus transgressionem facere de venatione infra metas forestae predictae quos predicti viridarii attachiare non possunt: Volumus & concedimus pro nobis & heredibus nostris quod hujusmodi transgressores per Justicarios forestae nostrae ultra Trentam attachientur ad praesentationem viridariorum praedict. ad respondendum, inde coram justiciariis nostris itinerantibus ad placita forestae nostrae in partibus illis cum ibid. ad placitandum venerint prout secundum assisam & consuetudinem forestae fuerint faciend. Which Charter was pleaded upon the Claime made by the Abbot of Whitbye before Willoughby, Hungerford, and Hanbury, Justices in Eire in the forrest of Pickering, which Eire began Anno 8.Edw.3. And these before them were allowed. And when the King createth an Earle of such a county or other place, To hold that dignity to him and his heires, This Dignity is personall, and also concerneth lands and tenements. But of this matter more shall be said in the next Chapter, Sect. 14. & 15.
“Called in Latine, feum sinplex, for Feodum is the same that Inheritance is,”
Here Littleton himselfe teacheth the signification of feodum; according to that which hath bin said, which onely is to be applied to fee simple pure and absolute. And this and all his other interpretations of words and Etymologies throughout all his three bookes (wherein the studious Reader will observe many) are perspicuous, and ever per notiora & nunquam ignotum per ignotius, and are most necessary, for ignoratis terminis ignoratur & ars. ,
“Simplex is as much to say, as lawfull or pure.”
Hereof hee treateth onely in this place. And Litt. saith well, that Simplex idem est quod purum. Simplex enim dicitur quia sine plicis; & purum dicitur, quod est merum & solum sine additione. Simplex donatio & pura est ubi nulla addita est conditio siue modus, simplex enim datur quod nullo additamento datur. ,
“a lawfull or pure Inheritance.”
And therefore it is well said,quod donationum alia simplex & pura, quae nullo jure civili vel naturali cogente, nullo precedente metu vel interveniente ex mera gratuitaque libertate donantis procedit, & ubi nullo casu velit donator ad se reverti quod dedit, alia sub modo conditione vel ob causam, in quibus casibus non proprie sit donatio cum donator, id ad se reverti velit, sed quedam potius feodalis dimissio, alia absoluta & larga, alia stricta & coarctata sicut certis heredibus quibusdam a successoribus exclusis, &c. And therefore seeing fee simple is hereditaslegitima vel pura, it plainly confirmeth that the division of fee is by his authority rather to be divided as is aforesaid than fee simple. And he saith well in the disjunctive legitima vel pura, for every fee simple is not Legitimum. For a disseisor, abator, intruder, usurper &c. have a fee simple, but it is not a lawfull fee. So as every man that hath a fee simple, hath it either by right or by wrong. If by right, then he hath it either by purchase or discent. If by wrong, then either by disseisin, intrusion, abatement, usurpation, &c. In this Chapter he treateth onely of a lawfull fee simple, and divideth the same as is aforesaid.
“For if a man would purchase.”
Persons capable of purchase who have ability to grant.Persons capable of purchase are of two sorts, persons naturall created of God, as I. S. I. N. &c. and persons incorporate or politique created by the policy of man, (and therefore they are called bodies politique) and these be of two sorts, viz, either sole, or aggregate of many: againe aggregate of many, either of all persons capable, or of one person capable, and the rest incapable or dead in law, as in the Chapter of Discontinuance, Sect. 57. shall be shewed. Some men have capacitie to purchase, but not abilitie to hold. Some capacity to purchase and abilitie to hold, or not to hold, at the election of them or others. Some capacity to take and to hold. Some neither capacity to take nor to hold. And some specially disabled to take some particular thing.
If an alien Christian or infidell purchase houses, lands, tenements, or hereditaments to him | and his heires, albeit he can have no heires, yet he is of capacitie to take a fee simple but not to hold. For upon an office found, the king shall have it by his prerogative, of whomsoever the land is holden. And so it is if the alien doth purchase land and die, the law doth cast the freehold and inheritance upon the King. If an alien purchase any estate of freehold in houses, lands, tenements, or hereditaments, the King upon office found shall have them. If an alien be made Denizen and purchase lands and die without issue, the lord of the fee shall have the escheat, and not the King. But as to a lease for yeares, there is a diversitie betweene a lease for yeares of a house for the habitation of a marchant stranger being an alien, whose king is in league with ours, and a lease for yeares of lands, meadowes, pastures, woods, and the like. For if he take a lease for yeares of lands, meadowes, &c. upon office found, the king shall have it. But of a house for habitation he may take a lease for yeares as incident to Commercety, for without habitationheecannot merchandize or trade. But if he depart, or relinquish the realme, the king shall have the lease. So it is if he die possessed thereof, neither his Executors or administrators, shall have it, but the king: for he had it only for habitation as necessary to his trade or traffique, and not for the benefit of his Executor or adminstrator. But if the alien be no merchant, then the king shall have the lease for yeares, albeit it were for his habitatation, and so it is if he be an alien enemie. And all this was so resolved by the Judges assembled together for that purpose in the case of Sir James Croft, Pasch. 29. of the reigne of Queene Elizabeth. Also if a man commit felony, and after purchase lands and after is attainted, he had capacitie to purchase but not to hold it, for in that case the Lord of the fee shall have the Escheat. And if a man be attainted of felony, yet he hath capacity to purchase to him and to his heires, albeit he can have no heire, but he cannot hold it, for in that case the king shall have it by his prerogative, and not the Lord of the fee, for a man attainted hath no capacity to purchase (being a man civiliter mortuus ) but onely for the benefit of the king, no more than the alienee hath. If any sole Corporation or aggregate of many, either Ecclesiasticall or temporall (for the words of the statute be Si quis religiosus vel alius ) purchase Lands or Tenements in fee, they have capacity to take but not to retaine (unlesse they have a sufficient Licence in that behalfe) for within the yeare after the alienation, the next Lord of the fee may enter, and if he doe not, then the next immediate lord from time to time to have half a yeare, and for default of all the mesne Lords, then the king to have the land so aliened for ever, which is to be understood of such inheritance as may be holden. But of such inheritances as are not holden, as Villeins, rents charges, commons, and the like, the king shall have them presently by a favourable interpretation of the statute. An Annuity granted to them is not mortmaine, because it chargeth the person onely. Some have said that it is called mortmaine Manus mortua, quia possessio corum est immortalis, manus propossessione, & mortua pro immortali, and the rather for that by the lawes and statutes of the realme, all Ecclesiastiall persons are restrained to alien. Others say it is called manus mortua per Antiphrasin, because bodies politique and corporate never die. Others say that it is called Mortmaine by resemblance to the holding of a mans hand that is ready to die, for that he then holdeth he letteth not goe till he be dead. These and such others are framed out of wit and invention, but the true cause of the name, and the meaning thereof, was taken from the effects, as it is expressed in the statute it selfe,per quod quae servitia ex hujusmodi feodis debentur, & quae ad defensionem regni ab initio provisa fuerunt indebite subtrahuntur & capitales domini eschaetas suas amittunt, so as the lands were said to come to dead hands as to the Lords, for that by alienation in Mortmaine, they lost wholly their escheats, and in effect their knights services for the defence of the Realme, Wards, Marriages, Reliefes, and the like, and therefore was called a dead hand, for that a deadhandyeeldeth no service.
I passe over Villeins or Bondmen, who have power to purchase lands, but not to reteyne them against their Lords, because you shall reade at large of them in their proper place in the Chapter of Villenage.
An infant or minor (whome we call any that is under the age of 21 yeares) have without consent of any other, capacity to purchase, for it is intended for his benefit, and at his full age he may either agree thereunto, and perfect it, or without any cause to be alleged, Waive or disagree to the purchase, and so may his heires after him, if he agree not thereunto after his full age.
A man of non sane memory may without the consent of any other, purchase lands, but hee himselfe cannot waive it, but if he die in his madnesse, or after his memory recovered without agreement thereunto, his heire may Waive and disagree to the state, without any cause shewed, and so of an Ideot. But if the man of non sane memory, recover his memory, and agree unto it, it is unavoydable.
If an Abbot purchase lands to him and his successors without the consent of his Covent, he himselfe cannot Waive it, but his successor may upon just cause shewed, as if a greater rent were reserved thereupon than the value of the land, or the like, but he cannot Waive it unlesse it be upon just cause, et sic de similibus praelatus Ecclesiae suae conditioné meliorare potest, deteriorare nequit. And in another place he saith,Est enim Ecclesia ejusdem conditionis, quae fungitur vice minoris.
| But no Simile holds in everie thing, according to the ancient saying, Nullum simile quatuor pedibus currit. (a) An hermaphrodite may purchase according to that Sex which prevaileth. A feme covert cannot take any thing of the gift of her husband, but is of capacitie to purchase of others without the consent of her husband. And of this opinion was Littleton in our Books, and in this Booke Sect 677. but her husband may disagree thereunto, and divest the whole estate, but if he neither agree nor disagree, the purchase is good; but after his death, albeit her husband agreed thereunto, yet shee may without any cause to be alleaged waive the same, and so may her heires also, if after the decease of her husband she her selfe agreed not thereunto.
(b) A wife (Uxor) is a good name of Purchase, without a Christian name, and so it is, if a Christian name be added and mistaken, as Em for Emelya, &c. for utile per inutile non vitiatur. But the Queene, the Consort of the King of England, is an exempt person from the King by the Common Law, and is of abilitie, and capacitie to purchase and grant without the King. Of which see more at large, Sect. 206.
(c) The Parishioners or Inhabitants, or probi homines of Dale, or the Church wardens, are not capable to purchase lands, but goods they are, unlesse it were in ancient time when such grants were allowed.
(d) An ancient grant by the Lord to the Commoners in such a waste, that a way leading to their Common should not be streightened, was good, but otherwise it is of such a grant at this day. (e) And so in ancient time a grant made to a Lord, & hominibus suis tam liberis quam nativis, or the like, was good, but they are not of capacitie to purchase by such a name at this day. But yet at this day if the King grant to a man to have the goods and cattels de hominibus suis, or de tenentibus suis, or de residentibus, infra feodum, &c. it is good, for there they are not named as purchasers or takers, but for another mans benefit, who hath capacitie to purchase or take. (f ) And regularly it is requisite that the Purchaser be named by the name of Baptisme and his surname, and that speciall heed bee taken to the name of Baptisme, for that a man cannot have two names of Baptisme as he may have divers surnames. (g) And it is not safe in writs, pleadings, grants, &c. to translate surnames into Latine. As if the surname of one be Fitzwilliam, or Williamson, if he translate him to filius Willi. if in truth his father had any other Christian name than William, the Writ, &c. shall abate, for Fitzwilliam or Williamson is his surname whatsoever Christian name his father had, therefore the Lawyer never translates surnames. And yet in some cases, though the name of Baptisme be mistaken, (as in the case before put of the wife) the grant is good.
So it is if lands be given to Robert Earle of Pembroke where his name is Henry, to George Bishop of Norwich, where his name is John, and so of an Abbot, &c. for in these and the like cases there can be but one of that Dignitie or name. And therefore such a grant is good, albeit the name of Baptisme be mistaken. If by Licence lands be given to the Deane and Chapter of the holy and individed Trinitie of Norwich, this is good, although the Deane bee not named by his proper name, if there were a Deane at the time of the grant, but in pleading he must shew his proper name. And so on the other side, If the Deane and Chapter make a Lease without naming the Deane by his proper name, the Lease is good, if there were a Deane at the time of the Lease, but in pleading the proper name of the Deane must be shewed, and so to the Booke of 18.Edw.4. to be intended for the same Judges in 13.Edw.4. held the grant good to a Mayor, Alderman, and Commonaltie, albeit the Mayor was not named by his proper name, but in pleading it must be shewed, as it is there also holden. If a man be baptized by the name of Thomas, and after at his Confirmation by the Bishop he is named John, he may purchase by the name of his Confirmation. And this was the case of Sir Francis Gawdye, late chiefe Justice of the Court of Common Pleas, whose name of Baptisme was Thomas, and his name of Confirmation Francis, and that name of Francis by the advice of all the Judges in Anno 36.Hen.8. hee did beare, and after used in all his purchases and grants. (h) And this doth agree with our ancient Bookes, where it is holden that a man may have divers names at divers times, but not divers Christian names. And the Court said, that it may be that a woman was baptized by the name of Anable and fortie yeares after she was confirmed by the name of Douce, and then her name was changed, and after she was to be named Douce, and that all purchases, &c. made by her by the name of Baptisme before her Confirmation remaine good, a matter not much in use, nor requisite to be put in ure, but yet necessarie to be knowne. (i) But purchases are good in many cases by a knowne name, or by a certaine description of the person without either surname, or name of Baptisme, as Uxori I. S. as hath beene said, or primogenito filio, or secundo genito filio, &c. or filio natu minimo I.S. or seniori puero, or omnibus filiis or filiabus I.S. or omnibus liberis seu exitibus of I.S. or to the right heires of I.S.
(k) But if a man doe infranchise a Villeine, cum tota sequela sua, that is not sufficient to infranchise his children borne before, for the incertaintie of the word sequela. (l) But regularly in Writs, the Demandant or Tenant is to be named by his Christian name and Surname, unlesse it be in cases of some Corporations or Bodies politique.
| (a) A bastard having gotten a name by reputation may purchase by his reputed or knowne name to him and his heires, although he can have no heire but of his body. A man makes a lease to B. for life, remainder to the eldest issue male of B. & the heires males of his body. B. hath issue a bastard son, he shall not take the remainder, because in Law he is not his issue, for qui ex damnato coitu nascuntur inter liberos non computentur. And as Littleton saith, A bastard is quasi nullius filius & can have no name of reputation as soone as he is borne. (b) So it is if a man make a lease for life to B. the remainder to the eldest issue male of B. to bee begotten of the body of Jane S. whether the same issue be legitimate or illegitimate. B. hath issue a bastard on the body of Jane S. this son or issue shall not take the remainder, for (as it hath beene said) by the name of issue, if there had beene no other words he could not take, and (as it hath beene also said) a bastard cannot take, but after hee hath gained a name by reputation, that hee is the sonne of B. &c. (c) And therefore he can take no remainder limited before he be borne, but after he be borne, and that he hath gained by time a reputation to be knowne by the same of a son, then a remainder limited to him by the name of the sonne of his reputed father is good. But if he cannot take the remainder by the name of issue at the time when hee is borne hee shall never take it. And so it seemeth, and for the same cause, if after the birth of the issue, B. had married Jane S. so as hee became Bastard eigne, and had a possibilitie to inherit, yet he shall not take the remainder.
Persons deformed having humane shape, ideots, mad men, lepers, deafe, dumb, and blinde, minors, and all other reasonable creatures have power to purchase and retaine lands or tenements. (d) But the Common Law doth disable some men to take any estate in some particular things: As if an office either of the grant of the King or Subject which concernes the administration, proceeding, or execution of Justice, or the Kings revenue, or the Commonwealth, or the interest, benefit, or safetie of the subject, or the like; if these, or any of them be granted to a man that is unexpert, and hath no skill and science to exercise or execute the same, the grant is meerely void, and the partie disabled by Law, and incapable to take the same, pro commodo regis & populi, for only men of skill, knowledge, & abilitie to exercise the same are capable of the same to serve the King & his people. (e) An infant or minor is not capable of an office of Stewardship of the Court of a Mannor either in possession or reversion. (f ) No man though never so skilfull and expert, is capable of a judiciall office in reversion, but must expect untill it fall in possession. And see Sect. 378. where bargaining or giving of money, or any manner of reward, &c. for offices there mentioned, shall make such a purchaser incapable thereof, which is worthy to bee knowne, but more worthy to be put in due execution.
Some are capable of certaine things for some speciall purpose, but not to use or exercise such things themselves. As the King is capable of an office, not to use, but to grant, &c.
A monster borne within lawfull matrimony, that hath not humane shape cannot purchase much lesse retaine any thing. (g) The same Law is de professis & mortuis seculo, for they are civiliter mortui, whereof you shall read at large in his proper place, Sect. 200.
In Latine Perquisitum of the Verbe Perquirere, Littleton describeth it in the end of this Chapter in this manner, Item, purchase est appel le possession de trés outenèments que home ad per son fait, ou per son agreement, a quel possession il neavient per title de discent de nul de ses ancesters, ou de ses cosens mes person fait dem. So as I take it, a purchase is to be taken, when one commeth to lands by conveyance or title, and that disseisins, abatements, intrusions, usurpations, and such like estates gained by wrong, are not said in Law purchases, but oppressions and injuries.
Note that purchasers of lands, tenements, leases, and hereditaments for good and valuable consideration, shall avoyd all former fraudulent and covinous conveyances, estates, grants, charges & limitations of uses, of or out of the same, (h) by a Statute made since Littleton wrote, whereof you may plainly and plentifully read in my Reports, to which I will adde this case, I. C. had a Lease of certaine lands for 60 yeares if hee lived so long, and forged a Lease for 90 yeares absolutely, and he by Indenture reciting the forged Lease for valuable consideration bargained, and sold the forged Lease: and all his interest in the land to R. G. It seemed to me that R. G. was no purchaser within the Statute of 27 Eliz. for he contracted not for the true & lawfull interest, for that was not knowne to him, for then perhaps hee would not have dealt for it, and the visible and knowne tearme was forged, and although by generall words the true interest passed notwithstanding he gave no valuable consideration nor contracted for it. And of this opinion were all the Judges in Serjeants Inne in Fleetstreet.
(i) In ancient time when a man made a fraudulent feoffment it was said, quod posuit terram illam in brigam, where brigam doth signifie wrangle, contention, or intricacie, for fraud is the mother of them all. (k) And on the other side, purchases, estates, and contracts may be avoyded since Littleton wrote by certaine Acts of Parliament against Usurie above ten in the hundred, in such manner and forme as by those Acts is provided. Which Statutes are well expounded in my books of Reports which may be read there. To them that lend money my caveat is, that | neither directly nor indirectly, by art, or cunning invention, they take above ten in the hundred, for they that seeke by fleight to creepe out of these Statutes, will deceive themselves, and repent in the end.
Lands and other things to be purchased.Littleton here and in many other places putteth Lands but for an example, for his rule extendeth to Seigniories, Rents, Advowsons, Commons, Estovers, and other hereditaments of what kinde or nature soever.
Terra, Land in the legall signification comprehendeth any ground, soile or earth whatsoever, as Meadowes, Pastures, Woods, Moores, Waters, Marshes, Furses and Heath, Terra est nomen generalissimum, & comprehendit omnes species terrae, but properly Terra dicitur à terendo, quia vomere teritur, andanciently it was written with a singler, and in that sense it includeth whatsoever may bee plowed, and is all one with arvum ab arando. It legally includeth also all Castles, Houses, and other buildings: for Castles, Houses, &c. consist upon two things, viz. land or ground, as the foundation and structure thereupon, so as passing the land or ground, the structure or building thereupon passeth therewith. Land is anciently called Fleth, but land builded is more worthy than other land, because it is for the habitation of man, and in that repeat hath the precedencie to be demanded in the first place in a Praecipe, ashereafter shall be said. And therefore this element of the Earth is preferred before the other elements; first and principally, because it is for the habitation and resting place of man, for man cannot rest in any of the other elements, neither in the Water, Aire or fire. For as the Heavens are the habitation of Almightie God, so the Earth hath he appointed as the Suburbs of Heaven to be the habitation of man; Coelum coeli Domino, terram autem dedit filiis hominum. All the whole Heavens are the Lords, the earth hath he given to the children of men. Besides, everie thing as it serveth more immediately or more meerely for the food and use of man (as shall be said hereafter) hath the precedent dignitie before any other. And this doth the earth, for out of the earthcommeth mans food, and bread that strengthens mans heart, Confirmat cor hominis, and Wine that gladdeth the heart of man, and Oyle that makes him a cheereful countenance. And therefore Terra olim Ops mater dicta est quia omnia hac opus habeant ad vivendum. And the Divine agreeth herewith, for he saith,Patriam tibi & nutricem, & matrem, & mensam, & domum posuit terram Deus, sed & sepulchrum tibi hanc eandem dedit. Also the waters that yeeld fish for the food and sustenance of man are not by that name demandableina Praecipe, but the land whereupon the water floweth or standeth is demandable (as for example) viginti acr’ ter’ aqua coopert’, and besides the earth doth furnish man with many other necessaries for his use, as it is replenished with hidden treasures, namely with Gold, Silver, Brasse, Iron, Tinne, Lead, and other metals, and also with great varietie of precious stones, and many other things for profit, ornament and pleasure. And lastly, the earth hath in Law a great extent upwards, not only of water as hath beene said, but of aire and all other things even up to Heaven, for cujus est solum ejus est usque ad coelum, as it is holden, 14.Hen.8.fo.12. 22.Hen.6.59. 10.Edw.4.14. Regist. origin and in other bookes.
And albeit land, whereof our Author here speaketh, be the most firme and fixed inheritance, and therefore it is called solum, quid est solidum, and fee simple the most highest and absolute estate that a man can have, yet may the same at severall times be moveable; sometime in one person, and alternis vicibus in another, nay sometime in one place, and sometime in another. As for example, if there be 80 acres of meadow which have been used time out of minde of man, to be divided betweene certain persons, and that a certaine number of acres appertaine to everie of these persons, as for example, to A. 13. acres to be yearely assigned and lotted out, so as sometime the 13. acres lye in one place, and sometime in another, and so of the rest. A. hath a moveble fee simple in 13. acres, and may be parcell of his Mannor, albeit they have no certaine place, but yearly set out in severall places, so as the number onely is certaine, and the particular acres or place wherein they lye after the yeare incertaine. And so it was adjuged in the Kings Bench upon an especiall verdict.
If a partition be made betweene two Coparceners of one and the selfe-same land, that the one shall have the land from Easter untill Lammas to her and to her heires, and the other shall have it from Lammas till Easter to her and her heires, or the one shall have it the first yeare, and the other the second yeare alternis vicibus, &c. there it is one selfe-same land wherein two persons have severall inheritances at severall times. So it is if two Coparceners have two severall Mannors by descent, & they make partition, that the one shall have the one Mannor for a yeare, and the other the other Mannor for the same yeare, and after that yeare, then he that had the one Mannor shall have the other, & sic alternis vicibus for ever, and albeit the Mannors be severeall, yet are they certaine, and therefore stronger than Bridgewaters case, so as this doth make a Division of states of inheritances of lands, viz. Certaine or unmoveable whereof Littleton here speaketh, and incertaine and moveable, whereof these three cases for examples have beene put. Wherein it is to bee noted, that the possession is not onely severall, but the inheritance also.
(k) The same Law if a man in that case grant omnes boscos suos crescentes, &c. yet the land itselfe shall passe, as it hath been adjudged.Frassetum signifieth a wood, or ground that is woodie. (l) If a man hath a wood of Elder trees containing 20. acres, and granteth to another 20. acras alneti (with an N not a V) the wood of Elders, and the soile thereof shall passe, but no other kinde of woods shall passe by that name. Alnetum est ubi alni arbores crescunt. , And Sullings are taken for Elders. (m)Salicetum doth signifie a wood of wilowes, ubi salices crescunt, these trees in our Books are called Sawces.Selda, is a wood of Sallowes, Willowes, or Withies. A brackie ground is called Filecetum, ubi filices crescunt. A wood of Ashes is called Fraxinetum, ubi fraxini crescunt, and passeth by that name, and Lupulicetum where hops grow, and Arundinetum, where reeds grow. Some say that Dene or Denne, whereof Dena commeth, is properly a valley or dale. Denasylvae, and the like. (n)Drofden, or Drufden, or Druden, signifieth a thicket of wood in a valley, for Druf or Dru, signifieth a thicket of wood, and is often mentioned in Domesday. And sometimes Dena or Denna signifieth, as Villa and Denne, a towne.
(o)Cope signifieth a hill, & so doth Lawe, as Stanlawe is Saxeus collis. (p)Howe also signifieth a hill. And Hope combe, and Stow are valleyes, & so doth Clough. And Dunham or Duna, signifieth a hill or higher ground, and therefore commonly the townes that end in Dun, have hills or higher grounds in them, which we call Downes. It commeth of the old French word Dun.
(q) In our Latine a wood is called Boscus, Grava signifieth a little wood, in old Deeds, and Hirst or Hurst a wood and so doth Holt and Shawe. Twaite signifieth a wood grubbed up, and turned to arable. Stethe or Stede, betokeneth properly a banke of a River, and many times a place, as Stowe doth, and Wic, a place upon the Sea shore, or upon a River. Lea or Ley signifieth pasture.
(r) If a man doth grant all his pastures, Pasturas, the land it selfe imployed to the feeding of beasts doth passe, and also such pastures or feedings, as he hath in another mans soile. Leswes or Lesues is a Saxon word, and signifieth pastures. (s) Between Pastura and Pascuum, the legall difference is that Pastura in one signification containeth the ground it selfe called pasture, and by that name is to be demanded. Pascuum feeding, is wheresoever cattell are fed, of what nature soever the gound is, and cannot be demanded in a Praecipe by that name.
(t) If a man grant omnia prata sus, all his meadowes; the land it selfe of that kinde passe, & dicitur pratum quasi paratum, because it groweth sponte without maintenance. (u) A man grant omnes brueras suas, the soile where heath doth grow passeth, and may be demanded by that name | in a praecipe, it is derived from bruyer a French word for heath, and it is called Ros in the British tongue.
Roncaria or Rancaria signifieth land full of brambles & briers, and is derived of Roucier the French word which signifieth the same, & as much as senticetum. (a) By the grant of omnes Juncarias or joncarias, the soile were rushes do grow, doth passe, for Lonc in French is a Rush, whereof Joncaria commeth. (b) A man grant omnes Ruscarias suas, the soile where ruscii. kneholme, or butchers pricks or broome doe grow, shall passe, and so in the verse in the Register it is called, but in F.N.B. fol. 2. in the verse, Pischaria is put in stead of Ruscaria. And Jampna commeth of lonc and nower, a waterish place, and is all one in effect with Joncaria. Hee that granteth omnes mariscos suos, all his fennes or marish grounds doe passe. Mariscus is derived of the French word mares or marets; the Latine word for it, is palus or locus paludosus. Mora is derived of the English word Moore and signifieth a more barren and unprofitable ground than marshes, dangerous for any cattell to goe there, in respect of myrie and morish soyle, neither serves it for getting of turves there: (c) you shall read in Record, that such a man perquisuit trescent. acr. maretti, &c. this word maretrum is derived of mare the sea, and tego, and properly signifieth a moorish and gravelly ground, which the sea doth cover and overflow at a full sea, and lyeth betweene the high water marke, and the low water marke, infra fluxum & refluxum maris. By grant of these particular kindes, the land of these particular kindes onely doe passe, but as hath beene said by the grant of land in generall, all these particular kindes, and some others doe passe. Non mihi si centum linguae sint oraque centum, Omnia terrarum percurrere nomina possem. And therefore let us turne our eye to generall words, which doe include lands of severall sorts and qualities. (d) By the name of an Honor, which a subject may have, divers mannors and lands may passe. So by the name of an Isle, Insula, many mannors, lands and tenements may passe.
Holme or hulmus signifieth an Isle or fenny ground. * A Commote is a great Seigniory, & may include one or divers mannors; (e) By the name of a castle, one or more mannors may be conveyed, & è converso, by the name of a mannor, &c., a castle may passe. In Domesday I read Comes Alanus habet in suo castellatu 200. maneria, &c. praeter castellarium habet 43. maneria, and in that booke a castle is called castellum, and castrum, and domus defensibilis, and mansus muralis. (f ) But note by the way, that no subject can build a castle or house of strength embattelled, &c. or other fortress defensible, called in Law by the names aforesaid, and sometimes domus kernellatae, or Carnellatae, imbattellatae, tenellatae, machecollatae, mese, carnelet, &c without the licence of the King, for the danger which might ensue, if everie man at his pleasure might do it. And they be called imbattlements, because they are defences against battles in assaults. Tenellare or tanellare, is to make holes or loopes in walls to shoot out against the Assailants. Machecollare or machecoulare, is to make a warlik device over a gate or other passage like to a grate through which scalding water, or ponderous, or offensive things may be cast upon the assaylants. But to returne to the matter from whence upon this occasion we are fallen.
By the name of a towne Villa, a mannor may passe. In Domesday, Alodium (in a large sense) signifieth a free mannor and Alodiarii or Alodarii, Lords of the same, and Lannemanni there signifie lords of a mannor, having socam & sacam de tenentibus & hominibus suis. (g) And by the name of a Mannor, divers townes may passe, quod olim dicebatur fundus nunc manerium dicitur, by the name of a ferme or fearme firma, houses, lands, and tenements may passe, and firma is derived of the Saxon word feormian, to feed or releeve, for in ancient time they reserved upon their Leases, cattell and other victuall & provision for their sustenance. (h) Note a fearme in the North parts is called a Tacke, in Lancashire a Fermeholt, in Essex a Wike. But the word fearme, is the generall word, and anciently fundus signified a fearme and sometime land. (i) Lands making a Knights fee, shall passe by the grant of a Knights fee de uno feodo militis.
(k)Unum solinum or solinus terrae in Domesday book containeth two plow Lands and somewhat lesse than an halfe, for there it is said, Septem Solini, or Solina terrae sunt 17. carucat’. Una hida seu carucata terrae which is all one as a plow land, viz. as much as a plough can till, fullery also signifieth a plowland. Una virgata terrae, a yard land, the Saxons called it Girdland, and now the G. is turned to a Y. as in some Countries 10. in some 20. in some 24. in some 30. &c. (l)Una bovata terrae, an oxgange, or an oxgate of land, is as much as an oxe can till. (m) But carucata terrae and bovata terrae, are words compound, and may containe meadow, pasture, and wood, necessarie for such tillage. Jugum terrae in Domesday, containeth halfe a plow-land. And by all these names in the reign of Richard the first lands were usually demanded and long after.
(n) By the name of a Grange, Grangia a house or edifice, not onely where corne is stored up like as in barnes, but necessarie places for husbandrie also, as stables for hay and horses, and stables and styes for other cattell, and a curtilage, and the close wherein it standeth shall passe, and it is a French word, and signifieth the same, as we take it.
(o)Stagnum, in English a poole, doth consist of water and land, and therefore by the name of | Stagnum or a poole, the water and land shall passe also. (a) In the same manner Gurges, a deepe pit of water, a gors or gulfe consisteth of water and land, and therefore by the grant thereof by that name, the soile doth passe, and a praecipe doth lye thereof, & shall lay his esplées in taking of fishes, as Breames and Roches.Domesday. In Domesday it is called guort, gort & gors plurally, as for example, de 3. gorz. mille anguillae.
(b) So it is of a Forest, Parke, Chase, vivarye, and Warren in a mans owne ground, by the grant of any of them, not onely the privilege, but the land it selfe passes, for they are compound. In the book of Domesday, that is called lewad and leuga, and lewed, and lewe, which in Latine is called leuca.
(c)Stadium, or ferlingus sive ferligum, or quarentena terrae, is a furlong of Land, and is as much as to say, a furrow long, which in ancient time was the eighth part of a mile, and land will passe by that name. And some hold, that by that name land may be demanded. And de ferlingis & quarentenis, you shall read divers times in the booke of Domesday,Domesday. and there you shall read In insula Rex habet unum frustrum terrae unde exeunt sex vomeres.Nota frustrum signifieth a parcell, (d)Warectum or wareccum, or varectum, doth signifie fallow; Terra jacet ad Warectum, the land lyeth fallow: but in truth the word is vervactum, quasi vere novo victum seu subactum, terra novalis seu requieta, quia alternis annis requiescat. (e)Tam culta novalia. (f ) By the grant of a messuage, or house mesuagium, the orchard, garden and curtilage doe passe, and so an acre or more may passe by the name of a house. It is derived of the French word mese. (g) In Domesday, a house in a City or Burrough, is called haga; other houses are called there mansiones, mansurae, & domus, (h) and in an ancient plea concerning Feuersham in Kent, hawes are interpreted to signifie mansiones. In Normans French it is called mesiul or mesuil: Bye signifieth a dwelling, bye an habitation, and byan to dwell.
It is to be noted, that in Domesday there be often named bordarii seu borduanni, cosces, coscet, cotucami, cotarii, are all in effect bores or husbandmen, or cotagers, saving that bordarii, which commeth of the French word borde for a cottage, signifieth their bores holding a little house with some land of husbandry bigger than a cottage, and coterelli are meere cottagers, qui cotagia & curtilagia tenent.
Villani in Domesday (often named) are not taken there for bondmen, but had their name de villis, because they had fermes, and there did worke of husbandry for the Lord, and they were ever named before bordarii, &c. and such as are bondmen are called there servi.
Domesday.(i)Coleberti often also named in Domesday signifieth Tenants in free socage by free rent, and so it is expounded of record. Radmans and Radchemisters, (Rad, or rede, signifieth firme and stable) there also often named, these are liberi tenentes qui arabant & herciebant ad curiam domini, seu falcabant, aut metebant, because their estates are firme and stable, and they are many times called Sochemans and sokemanni because of their plough service.
Dreuchs signifieth free tenants of a Mannor there also named. Taini or thaini mediocres were free holders, and sometime called milites regis, and their land called Tainland, and there it is said, haec terra T.R.E. fuit Tainland, sed postea conversa in Reveland. (k) But thainus regis is taken for a Baron, for it is said in an ancient Author, Thainus regis proximus comiti est, & ibidem mediocris thainus, & alibi Baro sive thainus.Berquarium or Bercaria commeth of Berc, an old Saxon word, used at this day for barkes or rindes of trees, and signifieth a Tanhouse, or a heath house, where barkes or rindes of trees are laid to tan withall,Domesday. and Berquarij are mentioned in Domesday. It signifieth also, and more legally a sheepe coat, of the french word Bergerie.
(l) By Vaccaria in Law is signified a Dairy house, derived of vacca the cow. In Latine it is Lactarium or Lactitium, and vaccarius is mentioned in Domesday. And Fleta maketh also mention of porcaria a swinestye.
The content of an Acre is knowne, the name is common to the English, German, and French. In legall Latine it is called Acra, which the Latinists call iugerum. In Domesday it is called Arpen prati, sylvae, &c. 10. R.I. inter fines, Acra in Cornwall continet 40. perticatas in longitudine & 4. in latitudine, & quaelibet perticata de 16. pedibus in longitudine.
(m) By the grant of a Selion of land, Selio terrae, a ridge of land which containeth no certainty, for some be greater and some be lesser, and by the grante de una porca, a ridge doth passe, Selio is derived of the French word Sellon for a ridge.
(n) By the grant de centum libratis terrae, or 50. libratis terrae or centum solidatis terrae &c. land of that value passeth, and so of more or lesse, and in ancient time by that name it might have beene demanded. (o) And many things may passe by a name, that by the same name cannot be demanded by a praecipe (for that doth require more prescript forme) but whatsoever may be demanded by a praecipe, may passe by the same name by way of grant.
(p)Frythe is a plaine betweene woods, and so is lawnd or laund, Combe, hope, dene, glyne, hawgh, howgh signifieth a Vally. Howe, hoo, knol, law, peu, and cope a hill. Ey, Ing and worth signifieth a watry place or water. Falesia is a banke or hill by the sea-side, it commeth of falaize, which signifieth the same: of all these you shall read in ancient bookes, charters, deeds,| and records, and to the end that our student should not be discouraged for want of knowledge when he meeteth with them (nescit enim generosa mens ignorantiam pati) wee have armed him with the signification of them, to the end he may proceed in his reading with alacritie, and set upon, and know how to worke into with delight these rough mines of hidden treasure.
(m) By the name of Minera, or Fodina plumbi, &c. the land itself shall passe in a grant if it liverie be made, and also be recovered in an assise, & sic de similibus.
By the grant of a fould course or the like, lands and tenements may passe. (n)Tenementum, Tenement is a large word to passe, not onely lands and other inheritances which are holden, but also offices, rents, commons, profits apprender out of lands and the like, wherein a man hath any franktenement, and whereof he is siesed ut de libero tenemento. But haereditamentum, hereditament, is the largest word of all in that kinde, for whatsoever may be inherited is an hereditament, be it corporeall or incorporeall, reall or personall or mixt.
(o) A man seised of lands in fee hath divers Charters, deeds & evidences, or maketh a feoffment in fee, either without warrantie, or with warrantieonely against him and his heires, the purchaser shall have all the Charters, deeds and evidences, as incident to the Lands, & ratione terrae, to the end he may the better defend the land himselfe, having no warrantie to recover in value, for the evidences are as it were the sinewes of the land, and the feoffor being not bound to warrantie hath no use of them. But if the feoffor be bound to warrantie, so that he is bound to render in value, then the defence of the title at his perill, and therefore the feoffee in that case shall have no deeds that comprehend warrantie, whereof the feoffor may take advantage. Also he shall have such Charters as may serve him to deraigne the warrantie paramount; Also hee shall have all deeds and evidences, which are materiall for the maintenance of the title of the land, but other evidences which concerne the possession, and not the title of the land, the feoffee shall have them.
“To have and to hold.”
These two words doe in this place prove a double signification, viz., a ayer to have an estate of inheritance of lands descendible to his heires, and tener to hold the same of some superior land.
There have been eight formall or orderly parts of a deed of feoffment, viz. 1. the premisses of the deed implied by Littleton. 2. the habendum, whereof Littl. here speaketh. 3. the tenendum mentioned Littleton, 4. the Reddendum, 5. the Clause of warrantie, 6. the In cujus rei testimonium, comprehending the sealing, 7. The date of the deed containing the day, the moneth, the yeare, and stile of the King, or of the yeare of our Lord. (p) Lastly, the clause of hiis testibus, and yet all these parts were contained in verie few and significant words, (q)Haec fuit candida illius aetatis fides et simplicitas, quae pauculas lineis omnia fidei firmamenta posuerunt.
The office of the premisses of the deed is twofold. First, rightly to name the feoffor and the feoffee. And secondly, to comprehend the certaintie of the lands or tenements to be conveyed by the feoffment, either by expresse words, or which may by reference be reduced to a certaintie; for, certum est quod certum reddi potest. The habendum hath also two parts, viz. first, to name againe the feoffee, and secondly to limit the certaintie of the estate. The Tenendum at this day where the fee simple passe, must be of the chiefe lords of the fee. And of the Reddendum more shall be said in his proper place, in the Chapter of Rents. Of the Clause of warantie more shall be said in the chapter of warranties. In cujus rei testimonium sigillum meum apposui was added, for the Seale is of the essentiall part of the deed. The date of the deed many times Antiquitie omitted, and the reason thereof was, for that the limitation of prescription or time of memorie did often in processe of time change, and the law was then holden that a deed, bearing date, before the limited time of prescription was not pleadable, and therefore they made their deeds without date, to the end they might alleage them within the time of prescription. And the date of the deeds was commonly added in the reiqne of Henry the second and Edward the third and so ever since.
And sometime Antiquitie added a place, as Datum apud D. which was in disadvantage of the feoffee, for being in generall, hee may alleage the deed to be made where he will. And lastly, Antiquitie did adde, hiis testibus in the continent of the deed after the In cujus rei testimonium, written with the same hand that the deed was, which witnesses were called, the Deed read, and then their names entered. (r) And this is called charter land, and accordingly the Saxons called it Bockland, as it were bookeland. Which clause of hiis testibus in subjects deeds continued until and in the reigne of Henry the eighth but now is wholly omitted. And it appeareth by the ancient Authors and authorities of the Law; that before the Statute of 12. Edw.2.ca.2. Processe should be a market against the witnesses named in the deed, testes in carta nominatos, (s) and that the same Statute was but an affirmance of the Common Law, which not being well understood, hath caused varietie of opinions in our bookes. But the delay therein was so great, and some times (though rarely) by exceptions against those witnesses, which being found true; they were not to be sworne at all, neither to be joyned to the Jurie, nor as witnesses, (t) as if the witnesse were infamous, for example, if he attainted of a false verdict, or of a conspiracie at the | suit of the King, or convicted of perjurie, or of a Premunire, or of forgerie upon the Statute of 5. Eliz. cap. 14. and not upon the Statue of 1 Hen. 5. cap. 3. or convict of felony, or by judgement lost his cares, or stood upon the pillorie or tumbrell, or beene stigmaticus branded, or the like, whereby they become infamous for some offences, quaesuntminoris culpae sunt majoris infamiae. (c) If a Champion in a Writ of right become recreant or coward, he thereby loseth liberam legem, and thereby becomes infamous, and cannot be a witnesse, for regularly he that loseth liberam legem, becommeth infamous, and can be no witness. Or if the witnesse be an Infidell, or of non sane memorie, or not of discretion, or a partie interessed, or the like. (d) But often-times a man may be challenged to be of a Jurie, that cannot be challenged to be a Witnesse, and therefore though the Witnesse be of the nearest alliance, or kindred, or of counsell, or tenant, or servant to either partie, (or any other exception that maketh him not infamous, or to want understanding, or discretion, or a partie in interest) though it be proved true, shall not exclude the witnesse to be sworn, (e) but he shall be sworne, and his credit upon the exceptions taken against him left to those of the Jurie, who are triers of the fact, insomuch as some Bookes have said, that though the witnesse named in the Deed be named a Disseisor in the writ, yet hee shall be sworne as a witnesse to the deed. (f ) A Witnesse amongst others named in a deed was outlawed, and no Processe was awarded against him by the Statute, because he was extra legem, and an outlawed person cannot be an Auditor. And the Court in some bookes have said, that they have not seene witnesses challenged, which is regularly to be understood with the limitations above-said, but such as are returned to be of a Jurie, are to be challenged for the causes aforesaid for outlawrie, and divers other causes (for the which a witnesse cannot be challenged) and such Processe against witnesses banished. But seeing the witnesses named in a Deed shall be joyned to the Inquest, and shall in some sort joyne also in the verdict (in which case if Jurie and Witnesses finde the Deed that is denied to be the Deed of the partie, the adverse partie is barred of his attaint, because there is more than twelve that affirme the verdict.) It is reason that in that case of joyning, such exception shall be taken against the Witnesse as against one of the Jurie, because he is in the nature of a Juror. (a) And therefore to put one example, if he be outlawed in a personall action he cannot be joyned to the Jurie, but yet that is no exception against him to exclude him to be sworne as a Witnesse to the Jurie. And the reason of all this is, for that if he with others should joyne in verdict with the Jurie in affirmance of the Deed, the partie should be barred of his Attaint. But note, there must be more than one witnesse, that shall bee joyned to the Inquest. And albeit they joyne with the Jurie, and finde it not his Deed, notwithstanding this joyning, the partie shall have his attaint, for it is amaxime in law, (b) That Witnesses cannot testifie a negative, but an affirmative. And if one of the witnesses named in the Deed be one of the panell, he shall be put out of the panell, and all these secrets of law doe notably appeare in our bookes.
To shut up this point, it is to be knowne (c) that when a triall is by witnesses, regularly the affrimative ought to be proved by two or three witnesses, as to prove a summons of the Tenant, or the challenge of a Juror, and the like. But when the triall is by verdict of 12. men, there the judgement is not given upon witnesses, or other kinde of evidence, but upon the verdict, and upon such evidence as is given to the Jurie they give their verdict. And Bracton saith there is probatio duplex, viz. viva. as by witnesses viva voce, and mortua, as by deeds, writings, and instruments. And many times Juries, together with other matter, are much induced by presumptions, whereof there be three sorts, viz. violent, probable, and light or temerarie. Violenta praesumptio is many times plena probatio, as if one be run thorow the body with a sword in a house whereof he instantly dieth, and a man is seene to come out of that house with a bloudy sword, and no other man was at that time in the house. Praesumptio probabilis moveth little, but, Praesumptio levis seu temeraria, moveth not at all. So it is in the case of a Charter of feoffment, if all the witnesses to the Deed be dead (as no man can keepe his witnesses alive, & time weareth out all men) then violent presumption which stands for a proofe is continuall and quiet possession, for ex diuturnitate temporis omnia praesumuntur solemniter esse acta, also the Deed may receive credit,per collationem sigillorum, scripturae, &c. & super fidem cartarum mortuis testibus erit ad patriam de necessitate currendum.
Note, it hath beene resolved by the Justices, that a wife cannot be produced either against or for her husband,quia sunt duae animae in carne una, and it might be a cause of implacable discord and dissention between the husband and the wife, and a meane of great inconvenience, but (d) in some cases women are by Law wholly excluded to beare testimony, as to prove a man to be a Villeine, mulieres ad probationem status hominis admitti non debent. It was also agreed by the whole Court (e) that in an Information upon the Statute of usurie, the partie to the usurious contract shall not be admitted to be a witnesse against the Usurer, for in effect hee should be testis in propria causa, and should avoyd his owne bonds and assurances, and discharge himselfe of the money borrowed, and though hee commonly raise up an Intormer to exhibit the Information, yet in rei veritate he is the partie. And herewith in effect agreeth Brit-|-ton, that be that challengeth a right in the thing in demand, cannot be a witnesse, for that he is a partie in interest. But now let us returne to that from the which by way of digression (upon this occasion) we are fallen.
And the ancient Charters of the King which passed away any franchise or revenue of any estate of inheritance, had ever this clause of hiis testibus of the greatest men of the Kingdome, as the Charters of creation of Nobilitie, yet have at this day: when hiis testibus was omitted, and when teste me ipso, came in into the Kings grants, you shall read in the second part of the Institutes, Mag. Charta, cap. 38. I have tearmed the said parts of the Deed, formall or orderly parts, for that they be not of the essence of a Deed of feoffment, for if such a Deed be without premisses, habendum, tenendum, reddendum clause of warrantie, the clause of In cujus rei testimonium, the Date, and the clause of hiis testibus, yet the Deed is good. (f ) For if a man by Deed give lands to another, and to his heires without more saying, this is good, if he put his Seale to the Deed, deliver it, and make liverie accordingly. (g) So it is if A. give lands, to have and to hold, to B. and his heires, this is good, albeit the feoffee is not named in the promisses. And yet no well advised man will trust to such Deed, which Law by construction maketh good ut res magis valeat, but when forme and substance concurre, then is the Deed faire and absolutely good. The sealing of Charters and Deeds is much more ancient than some, out of error, have imagined, for the Charter of the King Edwyn, brother of King Edgar, bearing Date Anno Domini 956, made of the land called Jecklea in the Isle of Ely, was not onely sealed with his owne Seale (which appeareth by these words, Ego Edwinus gratia Dei totius Britannicae telluris Rex meum donum proprio sigillo confirmavi) but also the Bishop of Winchester put to his Seale, Ego Aelfwinus Winton Ecclesiae divinus speculator proprium sigillum impressi. And the Charter of King Offa, whereby he gave the Peterpence, doth yet remaine under Seale. But no King of England, before, or since the Conquest, sealed with any seale of Armes, before King Richard the first but the Seale was the King sitting in a chaire on the one side of the Seale, and on horse backe on the other side in divers formes. And King Richard the first sealed with a Seale of two Lyons, for the Conqueror for England bare two Lyons, and King John in the right of Aquitaine (the Duke whereof bare one Lyon) was the first that bare three Lyons, and made his Seale accordingly, and all the Kings since have followed him. And King Edward the third in anno 13. of his reigne did quarter the Armes of France with his three Lyons, and took upon him the title of King of France, and all his Successors have followed him therein.
In ancient Charters of feoffment there was never mention made of the deliverie of the Deed, or any liverie of seisin indorsed, for certainly the witnesses named in the Deed, were witnesses of both: and witnesses either of deliverie of the Deed, or of liverie of seisin by expresse tearmes was but of latter times, and the reason was in respect of the notorietie of the feoffment. And I have knowne some ancient deeds of feoffment having liverie of seisin indorsed suspected, and after detected of forgerie. As if a Deed in the stile of the King name him Defensor fidei before 13.Henry the eighth or Supreme head before 20.Henry the eighth at what time hee was first acknowledged supreme head by the Clergie, albeit the King used not the stile of Supreme head in his Charters, &c. till 22.Henry the eighth or King of Ireland, before 33.Henry the eighth at which time he assumed the title of the King of Ireland, being before that called Lord of Ireland, it is certainly forged, & sic de similibus.
And some have observed, that Grace was attributed to King Henry the fourth. Excellent Grace to King Henry the sixth Majestie to King Henry the eighth and before, the King was called, Soveraigne Lord, Liege Lord, Highnesse and Kingly Highnesse, which in Latine in legall proceedings is called Regia Celsitudo, as the beginning of the petition of right to the King is, Humillimè supplicavit vestrae Celsitudini regiae, &c, and the like. And upon this occasson it shall not be impertinent, seeing it is part of the formall Deed, to set downe the severall stiles of the Kings of England since the Conquest.
William the Conquerour commonly stiled himselfe Willielmus Rex, and sometimes Willielmus Rex Anglorum. And the like did William Rufus, and sometimes Willielmus Dei gratia Rex Anglorum.
Henry the first, Henricus Rex Anglorum, and sometimes Henricus Dei gratia Rex Anglorum.
Mawde the sole daughter and heire of Henry the first wrote, Matildis Imperatrix Henrici Regis filia & Anglorum Domina. Divers of whose creations and grants I have seene.
King Stephen used the stile that King Henry the first did. Henry the second, Fitz Emprice omitted Dei gratia, and used this stile, Henricus Rex Angliae, Dux Normanniae, & Aquitaniae, & Comes Andegaviae, hee having the Duchie of Aquitaine, and Earledome of Poitiers in the right of Elianor his wife heire to both: And the Earledomes of Anjow, Tournie, and Maine, as sonne and heire to Jeffery Plantagenet by the said Mawde his wife, daughter and sole heire of King Henry the first. She was first married to Henry the Emperour, and after his death to the said Jeffery Plantagenet. Which Duchie of Aquitaine doth include Gascoinge and Guian.
King Richard the first used the stile that Henry the second his father did, yet was hee King of Cyprus, and after of Jerusalem, but never used either of them.
| King John used that stile, but with this addition Dominus Hiberniae, and yet all that hee had in Ireland was conquered by his father King Henry the second which title of Dominus Hiberniae, hee assumed, as annexed to the Crowne, albeit his father, in the 23. yeare of his reigne, had created him King of Ireland in his life time.
King Henry the third stiled himselfe as his father King John did, untill the 44. yeare of his reigne, and then he left out of his stile Dux Normanniae, & Comes Andegaviae, and wrote onely Rex Angliae, Dominus Hiberniae, & Dux Aquitaniae.
King Edward the first stiled himselfe in like manner as King Henry the third his father did, Rex Angliae, Dominus Hiberniae, & Dux Aquitaniae. And so did King Edward the second during all his reigne. And King Edward the third used the selfe same stile untill the 13. yeare of his reigne, and then hee stiled himselfe in this forme, Edwardus Dei gratia Rex Angliae & Franciae, & Dominus Hiberniae, leaving out of his stile Dux Aquitaniae. He was King of France, as sonne and heire of Isabel wife of King Edward the second daughter and heire of Philip le Beau King of France, he first quartered the French Armories with the English in his great Seale, Anno Domini 1338. & regni sui 14.
King Richard the second and King Henry the fourth used the same stile that King Edward the third did. And King Henry the fifth untill the 8. yeare of his reigne continued the same stile, and then wrote himselfe, Rex Angliae, Haeres & Regens Franciae, & Dominus Hiberniae, and so continued during his life.
King Henry the sixth wrote,Henricus Dei gratia Rex Angliae et Franciae, & Dominus Hiberniae; this King being crowned in Paris King of France used the said stile 39. yeares, till hee was dispossessed of the Crowne by King Edward the fourth who after he had reigned also about ten yeares, King Henry the sixth was restored to the Crowne againe, and then wrote, Henricus Dei gratia Rex Angliae, & Franciae, & Dominus Hiberniae ab inchoatione regni sui 49. & receptionis regiae potestatis primo.
King Edward the fourth Richard the third and Henry the seventh stiled themselves, Rex Angliae & Franciae, & Dominus Hiberniae.
King Henry the eighth used the same stile till the tenth yeare of his reigne, and then hee added this word (Octavus)as Henricus octavus Dei gratia, &c. In the 13. yeare of his reigne hee added to his stile Fidei Defensor. In the 22. yeare of his reigne, in the end of his stile hee added, Supremum Caput Ecclesiae Anglicanae. And in the 23. yeare of his reigne hee stiled himselfe thus, Henricus octavus Dei gratia Angliae, Franciae & Hiberniae Rex, Fidei Defensor, &c. & in terra Ecclesiae Anglicanae & Hiberniae supremum caput.
King Edward the sixth used the same stile, and so did Queene Mary in the beginning of her reigne, and by that name summoned her first Parliament, but soone after omitted Supremum Caput. And after her marriage with King Philip, the stile not withstanding that omission was the longest that ever was, viz. Philip and Mary by the grace of God King and Queene of England and France, Naples, Jerusalem and Ireland, Defenders of the faith, Princes of Spaine and Cicily, Archdukes of Austria, Dukes of Millaine, Burgundy and Brabant, Countees of Hasburgh, Flanders and Tyroll. And this stile continued till the fourth and fifth yeare of King Philip and Queen Mary, and then Naples was put out, and in place thereof both the Cicilies put in, and so it continued all the life of Queene Mary.
I need not mention the stile of Queene Elizabeth, King James, nor of our Soveraigne Lord King Charles, because they are so well knowne, and I feare I have beene too long concerning this point, which certainlyis notunnecessarie to be knowne for many respects. But to shew the causes and reasons of these alterations would aske a Treatise of itselfe, and doth not sort to the end that I have aimed at. And now let us returne to the learning of Charters and Deeds of Feoffments and Grants.
Verie necessarie it is that Witnesses should bee underwritten or indorsed, for the better strengthening of Deeds, and their names (if they can write) written with their owne hands. For Liverie of seisin see hereafter Sect. 59. and for Deeds, Sect. 66. and of Conditionall Deeds see our Author in his Chapter of Conditions. And now let us proceed to the other words of our Author.
“To him and to his Heires.”
Haeres, in the legall understanding of the Common Law, implyeth that he is ex justis nuptiis procreatus, for haeres legitimus est quem nuptiae demonstrant, and is he to whom lands, tenements, or hereditaments by the act of God, and right of blood doe descend of some estate of inheritance, for Solus Deus haeredem facere potest non homo: dicuntur autem haereditas & haeres ab haerendo, quod est arctè insidendo, nam qui haeres est, haeret, vel dicitur ab haerendo quia haereditas sibi haeret, licet nonnulli haeredem dictum velint quod haeres fuit, hoc est dominus terrarum, &c. quae ad eum preveniunt.
A monster which hath not the shape of mankinde, cannot be heire or inherit any land, albeit it be brought forth within marriage, (a) but although hee hath deformitie in any part of his bodie, yet if he hath humane shape he may be heire. Hii qui contra formam humani generis converso more procreantur, ut si mulier monstrosum, vel prodigiosumenixa, inter liberos non computentur, partus tamen cui natura aliquantulem ampliaverit vel diminuerit, non tamen superabundanter (ut si sex digitos vel nisi quatuor habuerit) bene debet inter liberos connumerari. | Si inutilia natura reddidit, ut si membra tortuosa habuerit, non tamen is partus monstrosus. Another saith, Ampliatio seu diminutio membrorum non nocet. (b) A Bastard cannot be heire, for (as hath beene said before) qui ex damnato coitu nascuntur inter liberos non computentur. Everie heire is either a male, or female, or an Hemophradite, that is, both male and female. And an Hermophradite (which is also called Androgynus) shall be heire, either as male or female, according to that kinde of the sex which doth prevaile. Hermaphradita, tam masculo, quàm foeminae comparatur secundum praevalescentiam sexus incalescentis. And accordingly it ought to be baptized. See more of this matter, Sect. 35.
(c) A man seised of lands in fee hath issue an Alien that is borne out of the Kings ligeance, he cannot be heire, propter defectum subjectionis, albeit hee be borne within lawfull marriage. If made Denizen by the Kings Letters Patents, yet cannot hee inherit to his father or any other. But otherwise it is if hee be naturalized by Act of Parliament, for then hee is not accousted in Law Alienigena, but Indigena. But after one be made Denizen, the issue that hee hath afterwards shall be heire to him, but no issue that he had before. If an Alien commeth into England and hath issue two sonnes, these two sonnes are Indigenae subjects borne, because they are borne within the Realme. And yet if one of them purchase lands in fee, and dieth without issue, his brother shall not be his heire, for there was never any inheritable blood betweene the father and them, and where the sonnes by no possibilitie can be heire to the father, the one of them shall not be heire to the other. See more at large of this matter, Sect. 198.
If a man be attainted of treason, or felony, although he be borne within wedlocke, hee can be heire to no man, nor any man heire to him propter delictum, for that by his attaindor his blood is corrupted.Andthiscorruption of blood is so high, as it cannot absolutely be salved, and restored but by Act of Parliament, for albeit the person attainted obtaine his Charter of pardon, yet that doth not make any to be heire whose blood was corrupted at the time of the attainder, either downeward or upward. (d) As if a man hath issue a sonne before his attainder, and obtaineth his pardon, and after the pardon hath issue another sonne, at the time of the attainder, the blood of the eldest was corrupted, and therefore he cannot be heire. But if he dye living his father, the younger sonne shall be heire, for he was not in esse at the time of the attainder, and the pardon restored the blood as to all issues begottenafterwards. But in that case if the eldest sonne had survived the father, the younger sonne cannot be heire; because he hath an elder brother which by possibilitie might have inherited, but if the elder brother had beene an Alien, the younger sonne should be heire, for that the Alien never had any inheritable blood in him. See more plentifully of this matter, Sect. 646, 647.
If a man hath issue two sonnes, and after is attainted of treason, or felony, and one of the sons purchase lands and dieth without issue, the other brother shall be his heire, for the attainder of the father corrupteth the lineall blood only, and not the collaterall blood betweene the brethren, which was vested in them before the attainder, and each of them by possibilitie might have beene heire to the father, and so hath it beene adjudged, (*) but other wise in the case of the Alienee, as hath beene said. (e) But some have holden that if a man after he be attainted of treason or felony have issue two sonnes; that the one of them cannot be heire to the other, because they could not be heire to the father, for that they never had any inheritable blood in them.
(f) One that is borne deafe and dumbe may be heire to another, albeit it was otherwise holden in ancient time. And so if borne deafe, dumbe, and blinde, for in hoc casu, vitio parcitur naturali, but contract they cannot. Ideots, leapers, mad men, outlawes in debt, trespasses, or the like, persons excommunicated, men attainted in a praemunire, or convicted of heresie, may be heires.
(g) If a man hath a wife, and dieth, and within a verie short time after the wife marrieth againe, and within nine moneths hath a childe, so as it may be the childe of the one or of the other. Some have said, That in this case the childe may chuse his father, quia in hoc casu filiatio non potest probari, and so is the Booke to be intended, for avoyding of which question and other inconveniences, this was the Law before the Conquest, Sit omnis vidua sine marito duodecim mensibus, & si maritauerit perdat dotem.
(h) A man by the Common Law cannot be heire to goods or Chattels, for haeres dicitur ab haereditate. (i) If a man buy divers fishes, as Carps, Breames, Tenches, &c. and put them in his pond, and dyeth, in this case the heire shall have them, and not the Executors, but they shall goe with the inheritance, because they were at libertie and could not be gotten without industrie, as by nets, and other engines, otherwise it is if they were in a trunke or the like. Likewise Deere in a Parke, Coneyes in a Warren, and Doves in a Dove-house, young and old shall goe to the heire. (k) But of ancient time the heire was permitted to have an Action of debt upon a bond made to his Ancestor and his heires, but the Law is not so holden at this day. Vid. Sect. 12.
(l) It is to be noted that one cannot be heire till after the death of his Ancestor, hee is called haeres apparens, heir apparent.
| In our old Bookes and Records there is mention made of another heire, viz. haeres astrarius so called of Astre, that is, an harth of a house, because the Ancester by conveyance hath set his heire apparent, and his family in a house and living in his lifetime, of whom Bracton saith thus, (a)item esto quod haeres sit astrarius, vel quod aliquis antecessor restituat haeredi in vita sua haereditatem, & se dimiserit, videtur quod nullo tempore jacebit haereditas, & ideo quod nec relevari possit, nec debet, nec relevium dari. (b) For the benefit and safetie of right heires contra partus suppositos, the Law hath provided remedy by the Writ De ventre inspiciendo, whereof the rule in the Register is this; Nota si quis habens haereditatem duxerit aliquam in uxorem & postea moriatur ille sine haerede de corpore suo exeunte, per quod haereditas illa fratri ipsius defuncti descendere debeat, & uxor dicit se esse praegnantem de ipso defuncto cum non sit, habeat frater, & haeres breve de ventre inspiciendo. It seemeth by Bracton and Fleta which followed him, that this Writ doth lye, Ubi uxor alicujus in vita viri sui se praegnantem fecit cum non sit, vel post mortem viri sui se praegnantem fecit cum non sit ad exhaeredationem veri haeredis, &c. ad quaerelam veri haeredis per praeceptum domini regis, &c. which is to be understood according to the rule of the Register: when a man having lands in fee simple dieth, and his wife soone after marrieth againe, and faines her selfe with childe by her former husband, in this case though she be married, the Writ De ventre inspiciendo doth lye for the heire. But if a man seised of lands in fee (for example) hath issue a daughter, who is heire apparent, she in the life of her father cannot have this writ for divers causes; first, because she is not heire, but heire apparant, for as hath beene said, nemo est haeres viventis, and this Writ is given to the heire to whom the land is descended. And both Bracton and Fleta saith, that this Writ lieth Ad quaerelam veri haeredis, which cannot be in the life of his Ancestor, and herewith agreeth Britton and the Register. Secondly, the taking of a husband in the case aforesaid being her owne act, cannot barre the heire of his lawfull Action once vested in him. Thirdly, the Law doth not give the heire apparant any Writ, for it is notcertaine whether he shall be heire, solus Deus facit haeredes. Fourthly, the inconvenience were too great if heires apparent in the life of their Ancestor should have such a Writ to examine and trie a mans lawfull wife in such sort as the Writ De ventre inspiciendo doth appoint, and if she should be found to be with child, or suspect, then shee must bee removed to a Castle and there safely kept untill her deliverie, and so any mans wife might be taken from him against the Laws of God and man.
The words of the Writ De ventre inspiciendo make this evident, Rex Vic. salutem, monstravit nobis A. quod cum R. quae fuit uxor Clementis B. praegnans non sit, ipsa falsò dicit se esse praegnantem de eodem Clemente, adexhaeredationem ipsius A. desicut terra quae fuit ejusden C. ad ipsum A. jure haereditariodescendere debeat tanquam ad fratrem & haeredem ipsius se si praedict. R. prolem de eo non habuerit, &c. But this rather belongs to the Treatise of originall Writs, and therefore thus much herein shall suffice.
And it is to be observed that everie word of Littleton is worthy of observation, first (Heires) in the plurall number, for if a man give land to a man & to his heire in the singular number, he hath but an estate for life, for his heire cannot take a fee simple by descent, because he is but one, and therefore in that case his heire shall take nothing. Also observable is this conjunctive (Et), for if a man give lands to one, To have and to hold to him or his heires, hee hath but an estate for life for the uncertaintie. (Se, suis) If a man give land unto two, To have and to hold to them two & haeredibus (c) omitting suis, they have but an estate for life for the uncertaintie, whereof more hereafter in this Section. But it is said, if land be given to one man, & haeredibus, omitting suis, that notwithstanding a fee simple passeth, but it is safe to follow Littleton.
(d) “and his Assignes.”
Assignee commeth of the verbe assigno. And note there bee Assignes in Deed, and Assignes in Law, whereof see more in the Chapter of Warrantie, Sect. 733.
“these words (his Heires) which words onely make an Estate of Inheritance in all Feoffments and Grants.”
(e)Si autem facta esset donatio, ut si dicam, do tibi talem terram, ista donatio non extendit ad haeredes sed ad vitam donatoria, &c. (f ) Here Littleton treateth of purchases by naturall persons, and not of Bodies politique or corporate; (g) for if lands be given to a sole Body politique or corporate, (as to a Bishop, Parson, Vicar, Master of an Hospitall, &c.) there to give him an estate of inheritance in his politique or corporate capacitie, hee must have these words, To have and to hold to him and his successors, for without these words Successors, in these cases there passeth no inheritance, for as the heire doth inherit to the Ancestor, so the Successor doth succeed to the Predecessor, and the Executor to the Testator. (h) But it appeareth here by Littleton, that if a man at this day give lands to IS and his Successors, this createth no fee simple in him, for Littleton speaking of naturall persons saith that these words (his heires) make an estate of inheritance in all Feoffments and Grants, whereby he excludeth these words (his successors.) (i) And yet if it be an ancient grant it must be expounded as the Law was taken at the time of the grant. (k) A Chantrie Priest incorporate tooke a Lease to | him and his successors for a hundred yeares, and after tooke a release from the Leasor to him and his successors, and it was adjudged that by the release he had but an estate for life, for he had the Lease in his naturall capacitie for it could not goe in succession, and (his successors) gave him no estate of inheritance for want of these words (his heires.) (l) If the King by his Letters Patents giveth lands Decano & Capitulo, habendum sibi & haeredibus & successoribus suis, In this case albeit they be persons in their naturall capacitie to them and their heires, yet because the Grant is made to them in their politique capacitie, it shall enure to them and their successors. And so if the King doe grant lands to I. S. Habendum sibi & successoribus sive haeredibus suis, this Grant shall enure to him and his heires.
(m) B. having divers sonnes and daughters, A. giveth lands to B. & Liberis suis, et a lour heires, the father and all his children doe take a fee simple joyntly by force of these words (their heires) but if hee had no childe at the time of the feoffment, the childe borne afterward shall not take.
These words (his heires) doe not onely extend to his immediate heires, but to his heires remote, and most remote, borne and to be borne, (n)Sub quibus vocabulis (haeredibus suis) omnes haeredes propinqui comprehenduntur, & remoti, nati, & nascituri. , And haeredum appellatione veniunt haeredes haeredum in infinitum. And the reason wherefore the Law is so precise to prescribe certaine words to create an estate of inheritance, is for avoyding of uncertaintie, the mother of contention and confusion.
There be many words so appropriated, as that they cannot be legally expressed by any other word, or by any periphrasis, or circumlocution: Some to estates of lands, &c. as here and in (a) other places of our Author. In this place these words tantsolement, not solement alone, but tantsolement all onely, i. solummodo, or duntaxat are to be observed; (b) Some to Tenures; (c) Some to persons; (d) Some to offences; (e) Some to formes of originall Writs either for recoverie of right, or removing, or redresse of wrong, (f ) Some to warrantie of land. These have I touched for examples, I leave others to the studious Reader to observe, and adde, holding this for an undoubted veritie, that there is no knowledge, case, or point in Law, seeme it of never so little account, but will stand our Student in stead at one time or other, and therefore in reading, nothing to be pretermitted.
“make an Estate.”
Status dicitur à stando, because it is fixed and permanent. The Isle of Man, which is no part of the Kingdome, but a distinct Territorie of it selfe, hath beene granted by the great Seale to divers subjects and their heires. (g) It was resolved by the Lord Chancellor, the two chiefe Justices and chiefe Baron, that the same is an estate descendible according to the course of the Common Law, for whatsoever state of inheritance passe under the great Seale of England, it shall be descendible according to the rules, and course of the Common Law of England.
“in all Feoffments and Grants.”
Here hee giveth the feoffment the first place, as the ancient and most necessarie conveyance, both for that it is solemne and publike, and therefore best remembered and proved, (*) and also for that it cleareth all disseisins, abatements, intrussions, and other wrongfull or defensible estates, where the entrie of the Feoffor is lawfull, which neither Fine, Recoverie, nor Bargaine and sale by Deed indented and inrolled doth. And here is implyed a division of Fee, or Inheritance, viz. (h) into corporeall (as Lands and Tenements which lye in Liverie) comprehended in this word Feoffment, and may passe by Liverie by Deed, or without Deed, which of some is called Haereditas corporata, and incorporeall, (which lye in Grant, and cannot passe by Liverie, but by Deed, (as advowsons, Commons, &c. and of some is called Haereditas incorporata) and, by the deliverie of the Deed, the Freehold, and Inheritance of such Inheritance, as doth lye in Grant, doth passe) comprehended in this word Grant. And the Deed of incorporeate inheritances doth equall the Liverie of corporeate. And therefore Littleton saith, in all feoffments and Grants, Hereditas, alia corporalis, alia incorporalis: Corporalis est, quae tangi potest & videri, incorporalis quae tangi non potest, nec videri. ,
Feoffment is derived of the word of Art Feodum,quia est donatio feodi, for the ancient Writers of the Law called a feoffment donatio, of the verbe do or dedi, which is the aptest word of feoffment. And that word Ephron used, when he enfeoffed Abraham, saying, I give thee the field of Machpelah over against Mamre, and the Cave therein I give thee, and all the trees in the field and the borders round about, all which were made sure unto Abraham for a possession, in the presence of many witnesses.
By a feoffment the corporeate fee is conveyed, and it properly betokeneth a conveyance in fee, as our Author himselfe hereafter saith, in his Chapter of Tenant for life. And yet sometime improperly it is called a feoffment when an estate of freehold onely doth passe, Done est nosme generall plus que nest feoffment, car done est generall a touts choses moebles & nient moebles, feoffment est riens forsque del soyle. And note there is a difference inter cartam & factum, for | carta is intended a Charter which doth touch inheritance, and so is not factum unlesse it hath some other addition.
Grant, Concessio, is properly of things incorporeall, which (as hath been said) cannot passe without Deed. And here it is to be observed (that I may speake once for all) that everie period of our Author in all his three Bookes containes matter of excellent learning, necessarily to bee collected by implication, or consequence, for example hee saith here, that these words (his heires) make an estate of inheritance in all feoffments and grants, he expressing feoffments and grants, necessarily implyeth, that this rule extendeth not, first, to Last Wills and Testaments, for thereby, (i) as he himselfe after saith, an estate of inheritance may passe without these words (his heires) (k) As if a man devise 20. acres to another, and that he shall pay to his Executors for the same ten pound, and hereby the Devisee hath a Fee simple by the intent of the Devisor, albeit it be not to the value of the land. (l) So it is if a man devise lands to a man imperpetuum, or to give, and to sell, or in feodo simplici, or to him and to his Assignes for ever. In these cases a Fee simple doth passe by the intent of the Devisor, but if the devise be to a man and his Assignes without saying (for ever) the Devisee hath but an estate for life. (m) If a man devise land to one & sanguino suo, that is a Fee simple, but if it be Semini suo, it is an estate taile.
(n) Secondly, that it extendeth not to a Fine sur conusans de droit come ceo que il ad de son done, by which a fee also may passe without this word (heires) in respect of the height of that fine, and that thereby is implyed that there was a precedent gift in fee.
Thirdly, nor to certain Releases, and that three manner of wayes, (o) first when an estate of inheritance passeth and continueth, as if there be three Coparceners or Joyntenants, and one of them release to the other two, or to one of them generally without this word (heires) by Littletons owne opinion they have a Fee simple as appeareth hereafter. 2. By release (p) when an estate of inheritance passeth and continueth not, but is extinguished, as where the Lord releases to the Tenant, or the Grantee of a rent, &c. release to the Tenant of the land generally all his right, &c. hereby the Seigniorie, rent, &c. are extinguished for ever, without these words (heires.) 3. (q) when a bare right is released, as when the Disseisee release to the Disseisor all his right, he need not (saith our Author in another place) speake of his heires. But of all these, and the like cases, more shall be treated in their proper places. 4. Nor to a Recoverie, A. seised of land suffereth B. to recover the land against him by a common recoverie where the judgement is quod praedictus B. recuperet versus praed’. A. tenementa praedicta cum pertin’, yet B. recovereth a fee simple without these words (heires) for regularly everie Recoveror recovereth a fee simple. 5. Nor to a creation of Nobilitie by Writ, for when a man is called to the Upper House of Parliament by Writ, he is a Baron and hath inheritance therein without the word (heires) yet may the King limit the generall state of inheritance created by the Law and Custome of the Realme to the heires males, or generall, of his body by the Writ, as he did to Bromflete who in 27. H. 6: was called to Parliament by the name of the Lord Vescye, &c. with the limitation in the Writ to him and the heires males of his body, but if he be created by Patent, he must of necessitie have these words (his heires) or the heires males of his body, or the heires of his body, &c. otherwise he hath no inheritance. The first creation of a Baron by patent that I finde was of John Beauchampe of Holte created Baron by patent in 11. R. 2. for Barons before that time were called by Writ. And it is to be observed that of ancient times Earles, &c. were created by girding them with a sword, and nominating him Earle, &c. of such a Countie or place, and this with a calling of him to Parliament by Writ, by that name was a sufficient creation of inheritance.
But out of this rule of our Author, the Law doth make divers exceptions (Et exceptio probat regulam) for sometime by a feoffment a Fee simple shall passe without these words (his heires.) For example, first, (r) if the father enfeoffe the son, To have and to hold to him and to his heires, and the son infeoffeth the father as fully as the father infeoffed him, by this the father hath a Fee simple, quia verba relata hoc maxime operantur per referentiam ut in esse videntur. (s) Secondly, in respect of the consideration, a Fee simple had passed at the Common Law without this word (heires) and at this day an estate of inheritance in taile, as if a man had given land to a man with his Daughter in frank marriage generally, a Fee simple had passed without this word (heires) for there is no consideration so much respected in Law, as the consideration of marriage, in respect of alliance and posteritie. (t) Thirdly, if a Feoffment or Grant bee made by Deed to a Mayor and Communaltie or any other Corporation aggregate of many persons capable, they have a Fee simple without the word (Successors) because in judgement of the Law they never dye. (u) Fourthly, in case of a sole Corporation a Fee simple shall sometime passe without this word (Successors) as if a feoffment in fee be made of land to a Bishop, To have and to hold to him in libera eleemosyna, a Fee simple doth passe without this word (Successors.) (w) And so if a man give lands to the King by Deed inrolled, a Fee simple doth passe without these words (Successors or Heires) because in judgement of Law the King never dieth. Fifthly, in Grants sometimes an Inheritance shall passe without this word (heires) (x) as if partition be made between Coparceners of lands in Fee simple, and for oweltie of partition the one grant a rent to | the other generally, the Grantee shall have a Fee simple without this word (heires) because the Grantor hath a Fee simple in consideration whereof he granted the rent. Ipsae etenim leges cupiunt ut jure regantur. Sixthly, by the Forrest Law if an Assart bee granted by the King at a Justice seat (which may be done without Charter) to another Habendum & tenendum sibi imperpetuum he hath a Fee simple without this word (heires) (y) for there is a speciall Law of the Forrest, as there is a Law Marshall for wars, and a Marine Law for the Seas. (z) And this rule of our Author extendeth to the passing of estates of inheritances in exchanges, releases, or confirmations that ensure by way of enlargement of estates, warranties, bargaine and sales by Deed indented and inrolled, and the like, in which this word (heires) is also necessarie, for they doe tantamount to a feoffment or grant, or stand upon the same reason that a feoffment or grant doth, for like reason doth make like Law, Ubi eadem ratio, ibi idem jus. And this is to be observed thorowout all these three Bookes, that where other cases fall within the same reason, our Author doth put his case but for example, for so our Author himselfe in another place explaneth it, saying, Et memorandum que en totus auters cases coment que ne sont icy expressment moves & specifies si sont en semblable reason sont en semblable ley. And here our Author is to bee understood to speake of heires when they are inheritable by discent, for they are capable of land also by purchase, and then the course of descent is sometime altered, as if lands of the nature of Gavelkind be given to B and his heires having issue divers sons, all his sons after his desease shall inherit, but if a lease for life be made, the remainder to the right heires of B. and B. dieth, his eldest son onely shall inherit, for hee onely to take by purchase is right heire by the Common Law. So note a diversitie betweene a purchase and a descent, but where the remainder is limited to the right heires of B. it need not to be said, and to their heires, for being plurally limited it includeth a Fee simple, and yet it resteth but in one by purchase.
Out of that which hath beene said it is to be observed, that a man may purchase lands to him and his heires by ten manner of conveyances, (for I speake not here of Estoppels.) First, by Feoffment: Secondly, by Grant (of which two our Author here speaketh.) Thirdly, by Fine, which is a feoffment of record. Fourthly, by common Recoverie, which is a common conveyance, and is in nature of a feoffment of record. Fifthly, by Exchange, which is in nature of a Grant. Sixthly, by Release to a particular Tenant. Seventhly, by Confirmation to a particular Tenant, both which are in nature of Grants. Eighthly, by Grant of a reversion or remainder with attornment of the particular Tenant, of all which our Author speaketh hereafter. Ninethly, by bargaine and sale by Deed indented and inrolled ordained by Statute since Littleton wrote. Tenthly, by Devise by custome of some particular place, as hee sheweth hereafter, and since he wrote; by Will in writing, generally by authoritie of Parliament.
What words are apt words for a Feoffment or Grant, vide Sect. 531. Our Author speaketh of Feoffments and Grants, whereby is implyed lawfull conveyances, and therefore this rule extendeth not to Disseisins, Abatements, or Intrusions into lands or tenements, or to usurpations to Advowsons, &c. in which cases estates in Fee simple are gained by the act and wrong of the Disseisors, Abators, Intruders and Usurpers, and if a disseisin, abatement, or intrusion be made to the use of another, if cey que use agreeth thereunto in pays by this bare agreement he gaineth a Fee simple without any liverie of seissin or other ceremony.
Vide Sect. 85.
[Ed.: that he does not hold, etc.]
[Ed.: which he claims to hold of you by free service, etc.]
8. H. 7. 12. 18. E. 3. 35. 24. B. 3. 65, 66. 44 E. 3. 5. 48. E. 3. 9.
[Ed.: a free inheritance. The word appears Danish in origin, from the Lex Salica.]
Mir. des Just. c.1. sect. 3. Customes de Normandy, cap. 28.
Le st. de 16. R. 2. cap. 5. 14-El.y. 313. a 1 Co. 47. in Alton Woods case.
Bract. lib. 1. cap. 8.
[Ed.: control of the use.]
[Ed.: duty of holding and rents.]
Brit. fo. 83. 207, 208. Fleta lib. 5. cap. 5 & cap. 8. Bract. lib. 4. 263. lib. 3 Domesday. Mir. des Just cap. 2. sect. 15. 17. Bract. lib. 2. cap. 5. 6. 7. Brit. cap. 84. fol 89. Flet. lib. 3. cap. 2. 8 & 9. & lib. 5. cap. 5.
[Ed.: benefit of the estate.]
(a) Bract. fo. 263. & 207. Pl. Com. in Wals. cas. 7. H. 4. 46. 8. H. 4. 15. 18 H. 8. b. 27. Ass. 33. 18. Ass 5. 18 E.3. 46. 24. E. 3. 2 8. 9. E. 4. 18. 16. H. 7 4. d. 106. 3. Account 56.22 R. 2 Disc. 50. 12 E. 4. 3. 15 E. 4. 8. Dy. 8 E1. 252, 253. 12 H.8.8. 4 H.7.2. The Case of a person which hath a qualified fee, see in the title of Desc.
(*) Vide sect 4.
(b) Bract. lib. 4 fo. 263. Flet. lib. 5. cap.5. Brit. fo. 205.207.
[Ed.: Fee is also spoken of in another way, in respect of one who enfeoffs another, and that which he holds of another, as where one says, such a person holds of me so many fees by knight-service. (And Fleta saith). One may hold in fee with respect to the services, like a chief lord, and not in defense demesne; and another may hold in fee and demesne and not in service, like those holding freely of another.]
(c) 2 Ass. p. 4. 12. Ass. 38 12. E. 3. tit Hors de son fee. 28. 28. Ass. 41. 7. H. 4. 30. 2. H. 6. 1.
Rot. pat. 13. E. 1.
[Ed.: Granted to Edmund, his dearly beloved brother, that he and his heirs should have, at their request in the Chancery of us and our heirs, justices to hold pleas of the forest according to the assize of the forest, which our same brother has by the gift of the lord King Henry our father, etc.]
Ro. Pat. an. 47. H. 3. Itin. Pickering. 8. E. 3. Ro. 42.
[Ed.: To the abbot and convent of Whitby, that they and their successors thenceforth for ever should have their own verderers to be chosen from their liberty of Whitby in the full county assembly of York, as is customary, to make answers and presentments of trespasses which should hereafter occur in hunting within the bounds of his forest of Whitby, which they have by the gift of William de Percy and Alan de Percy his son, and by the render and grant of the lord John, our father, late king of England, and by our confirmation, before our justices in eyre for pleas of the forest in those parts, and not elsewhere, just as the verderers of our forest ought and are accustomed to make such answers and presentments. And if it should happen that any outsiders, who are not of the liberty of the aforesaid abbot and convent, commit any trespass in hunting within the bounds of the aforesaid forest, whom the aforesaid verderers cannot attach, we will and grant for ourself and our heirs that such trespassers shall be attached by the justices of our forests beyond the Trent, at the presentment of the aforesaid verderers, to answer there before our justices in eyre for pleas of our forest in those parts, when they come there to plead, as to what should be done in accordance with the assize and custom of the forest.]
Bract. lib. 4 cap. 9. fo. 263. Brit. cap. 32. & 79.
[Ed.: using careful observation and never overlooking those things one does not know.]
[Ed.: if the terms are not understood, the art itself is not understood.]
For interpretation of words and Etymologies, Vid. Sect. 9. 18. 95. 116. 119. 135. 154 164. 174. 184. 186. 194. 204. 234. 267. 268. 332. 337. 424. 520. 592. 645. 689. 733.
Bract. lib. 2. cap. 39. fo. 92. 62. b. lib. 4. cap. 28. Fleta. lib. 3. cap. 8. Bract. lib. 2. cap. 5, &c. Britt. cap. 34.
[Ed.: Simple is the same as pure. And simple is so called because it is sine plicis (without folds); and something is called pure when it is absolute and single, without addition. A simple and pure donation is where no condition or qualification is added; for something is given simply when it is given with no addition.]
Fleta, lib. 3. ca. 3. Plowd. 58.b.
[Ed.: One kind of gift is simple and pure, not constrained by civil or natural law, with no fear preceding it or intervening, which proceeds from the pure and gratuitous liberality of the giver, and where the donor does not wish the thing given to revert to himself in any situation; another is qualified, upon condition, or for a cause, in which cases it is not properly a donation, since the donor wishes it to revert to him, but rather a certain feudal demise; another is absolute and large; another strict and forced, as when it is to certain heirs, excluding others from the succession, etc.]
[Ed.: a lawful or pure inheritance.]
Vid. Sect. 57.
11. Eliz. Dier 283. 11. H. 4. 20 & 26. 7. E. 4. 29.
32. Hen. 6. 23. Pl. Com. 483.
5. Mar. Br. tit. Denizen. 22.
Pasch. 29. Eliz. in Sir James Croft’s case. 49. Ass. pl. 2. 49. E. 3. 11.
[Ed.: Civilly dead; dead in the view of the law.]
[Ed.: If any religious or other person.]
Magna Charta. cap. 36. 7. E. 1. stat. 2. de. religiosis. W. 2. 13. E. 1. cap. 33. 15. R. 2. cap. 5. 23. H. 3. Ass. p. 17. Brit. fo. 32. Fleta, lib. 3. cap. 4. &. 5. 19. E. 2. tit. Vil. 1 34. 29. E. 3 Ibid. 13. 21. E. 3. 5. 4. H. 6. 9. 19. H. 66. 3. 65. 3. E. 4. 14. 19. E. 3.
Mortm. 8. 34. H. 6. 37. 19. H. 6. 63. (plowd. 502.a.) 7. E. 4. 14. [Ed.: dead hand, because the possession thereof is immortal, ‘hand’ meaning the possession, and ‘dead’ meaning immortal.]
Pl. Com. 193. in Wroteslyes case.
[Ed.: dead hand, by antiphrasis.]
Le statut de Religiosis. 7. E. 1. st. 2.
[Ed.: whereby the services which are owed from such fees, and which were originally provided for the defence of the realm, are unduly withdrawn, and the chief lords lose their escheats.]
41.43. Ass. p. 23.
[Ed.: a prelate of the church may improve the condition of his church but not worsen it.]
Bract. lib. 2. fo. 12. &. 32.
[Ed.: A church also is in the same condition, because it has the status of a minor.]
[Ed.: No simile runs upon four feet.]
(a) 1. H. 7. 16. 7. H. 4. 17. 18. H. 6. 8. 9. E. 3. 30 15. E. 4. fol. 1. b. 27. H 8. 24.
(b) A name of purchase. 2. H. 4. 25. 11. H. 5. 8. 46. E. 3. 22. 12. Ass. 18. 30. E. 3. 18. F. N. B. 97. a. 1. Ass. 11. 13. Estoppel. 231.
[Ed.: The useful is not vitiated by the useless.]
(c) 12. H. 7. 8. 37. H. 6. 30. 10. H. 4. 3. b.
(d) 32. E. 3. barre 261.
(e) 33. E 3. grant 83. 18. E. 3. 50. 12. Ass. 35. 14. H. 6. 12. 34. Ass. p. 11. 40. Ass. p. 21.
[Ed.: and to his men, both freemen and niefs (serfs).]
[Ed.: of his men, (or) of his tenants, (or) of residents within the fee, etc.]
(f ) Bract. lib. 4. tract. 1. ca. 20. Britton fol 121. 122. 3. E. 3. 78. 25. E. 3. 43. 26. Ass. 61. 30. Ass. 16. 46. E. 3. 22. 39. E. 3. 17. 3. H. 6. 25. 19. H. 6. 2. 30. H. 6. 1. 34. H. 6. 19. 11. H. 4. 27. 9. E. 4. 29. 5. E. 4 46. 65. 14. H. 7. 11. 20. Eliz. Dier 259. 8. E. 3. 436. 20 3. 25. 1. H. 4. E3. 5. H. 6. 26. 19. H. 6. 2. 34. H. 6. 19. 5 E. 4. 55. 27. H. 8. 11. 1. H. 5. 5 18. E. 3. 32. 27. E. 3. 85. 8. E. 3. 427. 7. H. 6. 29. 9 H. 5. 9.
(g) 40. E. 3. 22. Fitzwilliam. 24 E. 3. 64. Fitzjohn. 39. E. 3. 24. Fitzrobert. 27. E. 3. 85. tit. grant, 67. 18. E. 323, 24. 18. E. 4. 8b. 14. H. 7. 31. 32. 13. E. 4. 8. 5. E. 3. Vouch 179. 37. E. 3. 85. where the proper name is mistaken.
(h) 22. R. 2. briefe. 936. 12. R. 2. foeffments 58. 9. E. 3. 14. 46. E. 3. 21. 3. H. 6. 26. 34. H. 6. 19. 1. H. 7. 29. 5. E. 2 briefe. 741. 14. H. 7. 11.
(i) 17. E. 3. 29. 18. E. 3. 59. 30. E. 3. 18. 11 H. 4. 84. Pl. Com. 525. 21. R. 2. devise 41. E. 3. 19. 15. E. 3. Counter-Plea de Vouch. 43. 35. Ass. 13. 37. H. 6. 30. 11. E. 4. 2. 7. H. 4. 5. 40. E. 3. 9. 37. H. 8. Bru Nosme 40.
[Ed.: as “to the wife of I.S.” as hath beene said, or “to the firstborn son, or second son,” etc. or “to the youngest son of I.S.” or “elder son,” or “to all the sons and daughters of I.S.” or “to all the children and issue of I.S.” or to the right heires of I.S.]
(k) 15. H. 7. 14.
[Ed.: with his whole family.]
(l) 8E. 3. 437. 29. E. 3. 44 19. E. 4 11. 21 E. 4. 19. 7. H. 6. 29.
(a) 39. E. 3. 11. 24. 17. E. 3. 42. 35. Ass. 13. 41. E. 3. 19.
Vide sect. 118.
[Ed.: whoever is born of a guilty union shall not be reckoned among the children.]
[Ed.: as it were, the son of no one.]
(b) So it was resolved. M. 38 & 39. Eliz. in Bre. de errore, for land in Portington in Come. Salop.
(c) 39. E. 3. 11. 24. 35. Ass. 13. 41. E. 3. 10. 17. E. 3. 42. (6. Co. 66.)
[Ed.: A son whose birth precedes his parents’ marriage.]
(d) S. E. 4. tit. office & officer. Bro. 48. vinters case. 5. Mar. Dier. fo. 150. b. and Scroggs case. (Hob. 148.)
[Ed.: for the advantage of the king and the people.]
(e) M. 40. & 41. Eliz. in the King’s Bench between Scamler an Walters.
(f ) 11. co 2. in Auditor Curle’s case. Vide Sect. 378. 1. H. 7. 31.
(g) Bract. lib. 5 fo. 421. 415. Britt. cap. 22. 39. Fleta lib. 6. cap. 41. I. E. 3. 9. 44. E. 3. 4. 3. H. 6. 24. 21. R. 2. Judgement 263. 7. H. 4. 2. 14. H. 8. 16 Doct. & Stud. 141. Pl. Com. fo 47. Britt. cap. 33.
[Ed.: of those who have been professed and are dead to the world (for they are) civilly dead,]
[Ed.: Also, purchase is called the possession of lands or tenements that a man has by his deed or agreement, to which possession he does not come by title of descent from any of his ancestors or of his kinsmen; but by his own deed.]
(h) 27. Eliz. cap. 4. 13. Eliz. cap. 5. 3 co. 80. 82 83. Twine’s case. 5. co. 60. Gooche’s case, 6 co. 72. Burrel’s case, 11. co. 74. Pasch. 12. Ja. inter Jones pl. and Sir Rich. Groobham def. in ejectione firmae in evidence al Jurie.
(i) Hill. 18. E. 3. coram Rege in Thesaur.
[Ed.: that he placed his land in a wrangle.]
(k) 37. H. 8. cap. 6. 13.Eliz. cap. 8. 5. Co. 69. Burtun’s case, Eodem, lib. 7 Claiton’s case.
Pl. Com 168 b & 170. a & 151. 4.co. 87 b. Lutterel’s case. 4. E. 3. 161 & 6. E. 3. 283. 8. E. 3. 377. Temps. E. 1. Briefe. 811. 28. 14. 8. Dyer, 47.
[Ed.Terra (land) is an extremely general noun and comprehends all species of land.]
[Ed.Terra (land) is so called from terendo (wearing down) because it is worn down by the plough.]
[Ed.: arvum (a ploughed field) (is derived) from arando (ploughing).]
* Tr. 7. E. 3. coram Rege Northampt. In Thesaur.
Psal. 115. 16. [Ed.: The heaven, even the heavens, are the Lord’s; but the earth he has given to the children of men.]
Psal. 104. 15.
[Ed.: Earth was once called the abundant mother, because all things have to live therefrom.]
Chrysost. Hom. 30.
[Ed.: God gave you the earth as your homeland and nurse, and mother, and food (lit. table), and home, and even gave the same to you for your burial.]
[Ed.: twenty acres covered with water]
[Ed.: solum (soil), because it is solidum (solid).]
Vid. sect. 59. wherein this case liverie shall be made.
[Ed.: at alternate times.]
Vid. sect. 648. How these 13 acres may be charged.
Hill, 34. Eliz Rot. 489. in trans inter Weldon & Bridgewater in Banco Regis Temps. E.1. tit. partition 21. F.N.B. 62. L. Vide l Co. fo.87. per Walmsl. F. N. B. 62. K.
Vide sect. 114. where advowsons, &c. may be appendent and in gros.
(k) Tr. 7. Eliz. in Banco regis 5. co. 11. Ives case. 14. H. 8. 1. 46. E. 3. 22. 28. H. 8. Dyer. 19. 32. H. 8. Br reservat. 39. 7. E. 6. Dyer 79.
[Ed.: all his woods growing etc.]
Glanvil. lib-8. cap. 3.
(l) Domesday Regist. F.N.B. 2.
[Ed.: an alnetum (elder wood) is where elder trees grow.]
Hill 14. E. 3. coram Rege Lanc. in Thesaur.
(m) 8. E. 2. Wast. III. 7. Ass. 18. 11. Ass. p. 13. 41. E. 3. Wast, 82.
[Ed.: where willows grow.]
*Inter inquisit. apud Lanc. in com. Cornubie coram Justic. Aud. anno 6. E. I. in Thesaur. the B. of Exceters case.
[Ed.: where ferns grow.]
[Ed.: fraxinetum (ash grove), where ashes grow.]
(o) Camden 460. 151.
[Ed.: a stone hill.]
(p) Pasch. 44. E. 3. coram Rege in Thes.
(q) Hill, 13. E. 2. Lanc. coram Rege. in thesaur Camden Britt. 247. Rot. Par. 18 E. 1. 8. Evesque de Carlisle’s case.
(r) Pl. Com. 169. a. 4. E. 2. Briefe. 792. 793. 3. E. 3. 86. 4. E. 4. 1. 27. H. 8. 12.
(s) 20. Ass. pl. 9.
(t) Pl. Com. 169a. 13. E.3 Briefe. 241. 33. E. 3. Entrie. 80.
(u) Domesday. F.N.B. 2. Regist.
(a) Regist. 1. E. 3. 4. F.N.B. 2.
(b) 16. Ass. p. 2. Register.
(c) Pasch. 41. E. 3. coram. Rege Lincoln. rot. 28.
(d) Mag. Chart. c. 31. Walingford Nott. Bolon. Lanc. &c. Trin. 33. E. 1. coram Rege in Thes. honor de Huntingdon. Mich. 9. E. 1. Coram Rege in Thes. 8. E 2. Ass 377. 26. Ass. p. 60. 6. E. 3. 56- 47. E. 3. 21. honor de Pevevevel. 49. E.3.3. 24. honor de Egles. 9. H. 6. 27. 36. H. 8. Dyer 58. Honor de Glouc. F.N.B. 265. honor Abbath. de Merle. 5. E. 4. 129. 7. H. 6. 39. 1. E. 3. 4. &c. 13. E. 3. jurisdict. 23. 4. co. 88. Lutterel’s case. 5. H. 7. 9. 14. H. 4. in recordo longo. 8. H. 4. Pl. Com. 168. 8. H. 7. 1. 4. E. 4. 16.
*13. E. 3. jurisdict.23.
(e) 26. Ass. 54. 29. E. 3. 15. 29. H. 6. travers 4. Bract. fo 434 1 E. 3. 4. 5 H. 7. 9. 3. E. 2. Avowry 188. 37. H. 6. 26. 18. H. 6. 11. Lib. rub. sca. fo. 18.
(f ) In veter. Mag. Cart. cap. escheatriae fol. 162. Britton. cap. 20. Rot. Parliam. 45. E. 3. nu. 34. 6. H. 4. nu. 19. 1. E. 4. cap. 1. Rot. Parliam. 1. E. 3. 2. pars. Alano Charleton. 22. E. 3. 2. pars. Thoma Barkley &c.
[Ed.: soke and sake (the lord of the manor’s right to hold court and compel attendance) of their tenants and men.]
(g) Lamb. exposit. verb. ferme. Pl. Com. 195.
[Ed.: what was once called fundus (farm) is now called a manor.]
(h) Pl. Com. 169. Regist. 227. b. eject. firmae.
(i) 17. E. 3. fo. 8. 5. E. 3. 213. 16. E. 3. bre. 165. 12. E. 2. bre. 814.
[Ed.: of one knight’s fee.]
(k) 4. E. 3. 161. 6. E. 3. 283. 2. E. 3. 5. 35. H. 6. 29. Pl. Com. 168. 7. Ass. 8. 11. Ass. 13. Lamb. expos. verb. Hyda & virgat. terrae. Glanvil. lib. cap. Domesday. Bract. lib. 2. cap. 26, 27, & lib. 5. fol. 434. Regist. 72.
(l) 5. E. 3. fine 49. 13. E. 3. fine 67. 39. H. 6. 8. 4. E. 3. 159. 8. E. 3. 377. Bracton fol. 180. 269- 431. 5. H. 3. Droit. 66. Pl. Com. 168.
(m) 13. E. 3. bre. 241. 2. E. 3. 57. temps. E. 1 bre. 811. Pl. Com. 168.
(n) Pl. Com. 169. Linwood. 44. E. 3. 21. 4. E. 3. 32.
(o) 4. E. 3. tit. feoffments & faits 79. 14. E. 3. Formedon. 34. 34. Ass. pl. 11.
(a) 13. E. 3. 4. 4. E. 3. 143. 8. E. 3. 381. 10. E. 3. 482. 13. E. 3. entry, 57. F. N. B. 191. b.
(b) Temps E. 1. bre. 861. 4. E. 3. 5. 10. H. 7. 30. 44. E. 3. 12. 43. E. 3. 24. 35. H. 6. 55. 3. H. 6. 2. Domesday, Bracton lib. 4. fo. 235. Int adjudicat. coram Rege. p. 39. E. 3. lib. 2. fo. 95. in Thesaur.
(c) 40. Ass. 38. 4. H. 6. 14. 35. E. 1. ca. 6. Anno 10. E. 1. inter fines in Thesaur. Ferlingus terrae continet 32. acras.
Frustrum. 16. E. 3. tit. comon. 9.
[Ed.: In the island the king has one piece (frustrum) of land whence come six ploughs.]
(d) Mich. 8. H. 3. incipien. 9. Coram Rege. Warr. Ro. 6.
[Ed.: vervactum (fallow), meaning, as it were, newly vere victum (truly gained) or worked, newly ploughed or refreshed land, because in alternate years it rests.]
(e) Virg. Eclog. 1. a.
[Ed.: newly cultivated land.]
(f ) Bract. 211. 233. 22. E. 4. trans 140. Pl. Com. 168. 171. 23. H. 8. Br. feoffments 53. 9. Ass. p. 21. 35. H. 6. 44. Pl. Com. 169.
(h) Pasch. 30. E. 1. cortam Rege Kanc. in Thesaur. Statut. de extent. manerii Domesday.
[Ed.: who are tenants of the cottage and curtillage.]
(i) Int. placita coram domino Rege Mich. 10. E. 3. Rot. 26. Lamb. exposit. verb. Thanus.
[Ed.: free tenants who ploughed and harrowed to the lord’s court, or reaped, or harvested.]
[Ed.: the king’s knights . . . this land in the time of King Edward was theign-land, but is now converted into reeve-land.]
(k) Lib. Rub. cap. 15. &. cap. 41. & 76. W. 2. c. 46. 7. H. 438. Lib. d’Entries tit. Ass. Corps. Pol. 2.
[Ed.: The king’s theign is next to an earl, and a middle theign there, and elsewhere a baron or theign.]
(l) 7. H. 4. 38. Fleta. lib. 2. cap. 35. Domesday. 10. R. 1. Inter fines.
[Ed.: An acre in Cornwall contains forty perches in length and four in width, and every perch is sixteen feet in length.]
(m) 9. E. 39.Temps. E. 1. Br. 866. Mich. 30. E. 1. coram Rege. Glouc. in Thesaur.
(n) Bract. fo. 377. 431. 43. E. 3. 27 Regist. fo. 1. 94 248. 249. F.N.B. fo. 87. F. I.
[Ed.: of a hundred librates (pound’s-worth) of land, or fifty librates (pound’s-worth) of land, or a hundrd solidates (shilling’s-worth) of land.]
(p) 7 R. 1 Inter fines Sussex.
[Ed.: for a noble mind cannot bear ignorance.]
(m) 17. E. 3. 7. 43. E. 3. 35. b. Regist. 65. 10. H. 7. 21. Pl. Com. 191. 195. Bract. 211 326.
[Ed.: A mine of lead.]
[Ed.: as of freehold.]
(n) 45. E. 3. Vouchee 72. 33. E. 3. Grant 102 11. H. 6. 22. 27. 14. E. 4. 4. 20. Ass. p. 9. 3. E. 419. 11. H. 7. 25.
[Ed.: as of a free tenement.]
(o) Lib. fo. 1 & 2 in Seign. Buckhursts case. 44. E. 3. ll b. 39. E. 3. 17. a. 19. H. 6 65. b. 4. H. 6. a. 10. E. 4. 9 b. 18. E. 4. 14. 15. 6. H. 7. 3. b. H. 7. 33. a.]
[Ed.: and by reason of land.]
Vid. Sect. 40. & 370. 371 many things de cartis & Factis, Fleta lib. ca. 14. Britton 100. 101. Bracton lib. 5. fo. 396. a. 399. 38. H. 6. 33. 36. Pl. Com. Wrotesleyes case, fol. 96.]
(p) Vid.Throgmortons case. Pl. Com.
[Ed.: these being witnesses.]
(q) Lib. 6. fo. 43. in sir Anthony Mildmayes case, Vid. sect. 278.
[Ed.: Such was the innocent faith and simplicity of that age, that all the points of an agreement were put into a few lines.]
[Ed.: something is certain if it can be made certain.]
Brit. fo. 101.
[Ed.: In witness whereof I have set my seal.]
[Ed.: given (or dated) at D.]
[Ed.: in witness whereof.]
(r) Lamb. exposit. verb. terra ex scripto. Vid. Fortescue cap. 32. see the second part of the Institut. cap. 38. 12. E. 2. c. 2. see the second part of the Institutes. Marlbr. cap. 6. & cap. 14.
[Ed.: the witnesses named in the charter.]
(s) Brit fo. 65. 101. 11. E. 3. Proces. 170. 6. H. 3. Proces. 209. 8. H. 3. Proces. 210. 4. E. 2. gard. 119.
(t) Mirror ca. 4. sect. de infamies & perjurie. Glanvil. lib. 2. cap. 15. Bract. lib. 5. fol. 288. 292. Brit. fo 134. 135. 101. Fleta lib. 5. ca 21. 8. E. 2. Ass. 396. 2. E. 3. 22. 24. E. 3. 34. 43. E. 3. conspir. 11. 27. Ass. 29. 33. H. 6. 55 H. 6. 30.
[Ed.: [To lose] one’s free law (called the Villainous judgement).]
(c) Fortescu. cap. 26. Pat. 55. H. 3. m. 3. Stanf. Pl. Cor. 174. a.
[Ed.: free law.]
(d) Fortescu. ca. 25.
(e) 22. Ass. 12. &. 41. 23. Ass. 11. 19. E. 2. tit. Ass. 4o.
(f) 34. E. 1. Proces. 208.
[Ed.: Out of the law; out of the protection of the law.]
(a) 34. E. I. tit.proces 208 II. Ass. p. 19. 20. 12. Ass. p. 1. 12. 41. 18. Ass. p. 11. 22. Ass. 15. 23. Ass. 15. 40. Aff. 23. 48. Ass. p. 5. 21. H. 6. 3o. [Ed.: Note: the 1639 edition’s note lettering is used here, but it is erratic.]
(b) 48. E. 3. 30. 12. H. 6. fo. 6. 2. 5o. E. a. 16. 43. E. 3. 32. 12. H. 4. 9. 19. E. 2. Ass. 408. Pasch. 14. E. 3. Coram rege Devon. in Thesaur. Fleta lib. 6. cap. 6. F.N.B. 106. b. & 97. c.
(c) Mirror ca. 3. Pl. Com. fo. 10. Bract. lib. 5 fo. 400.
[Ed.: proof is of two kinds, that is to say, living.]
[Ed.: with the living voice; by word of mouth, and dead.]
[Ed.: Full proof (that is, proof by two witnesses).]
[Ed.: A light or random presumption.]
Fleta lib. 6. ca. 33. 8. E. 3 290. 39. E. 3. 21. 5.
[Ed.: From length of time (after lapse of time) all things are presumed to have been done in due form.]
Glanvil. lib. 10. ca. 12. Fleta lib. 6. ca. 33.
[Ed.: by the addition of seals, writing, etc.; and upon the credit of charters with dead witnesses it will be necessary to have recourse to the country (i.e., jury).]
Pasch. 10. Ja. in Com. Banco upon the stat. of Bankrupts.
[Ed.: because they are two souls in one flesh.]
(d) Fleta, lib. 2. ca. 44. 13. E. 1. tit. Vill. 36. 37. 19. E. 2. Ibid. 32.
[Ed.: women ought not to be admitted to prove the status of a man.]
(e) Tr. 8. Ja. in Com. banco. Smithes case. In evidence upon an information upon the statute of Usury. Brit. fol. 134.
[Ed.: a witness in his own cause.]
[Ed.: in truth.]
[Ed.: these being witness.]
[Ed.: witness myself; a solemn formula of attestation by the sovereign, used at the conclusion of charters, and other public instruments, and also of original writs out of chancery.]
[Ed.: warranty is an English word.]
[Ed.: In testimony whereof.]
(f ) Mirror ca. 1. sect. 6 &. and cap. 5. sect. 1: Glanvil. lib. 10. ca. 12. Bract. lib. 5. fol. 396. Flet. li. 6. c. 32. Brit. f. 66.
(g) Vid. Tearmes of the Law, verb. faits. Vid. Glanvil. lib. 10. c. 12. Mirr. c. 1. sect. 3. & c. 3.
[Ed.: that the thing should rather prevail.]
[Ed.: I, Edward, by the grace of God king of all the land of Britain, have confirmed my gift with my own seal.]
[Ed.: I, Ælfwin, God’s overseer of the church of Winchester, have stamped my own seal.]
[Ed.: Defender of the faith.]
21. H. 8 cap. 15.
[Ed.: and likewise of similar things.]
Vid. 2. H. 4. ca. 15. where Royall Majestie is attributed to the King, and Crimen Laesae Majestatis far more ancient.
[Ed.: Royal highness . . . Humbly supplicates unto your royal highness, etc.]
[Ed.: William, by the grace of God king of the English.]
[Ed.: Henry, by the grace of God king of the English.]
[Ed.: Maud the Empress, daughter of King Henry, and lady of England.]
[Ed.: Henry, king of England, duke of Normandy and Aquitaine, and earl of Anjou.]
[Ed.: Lord of Ireland.]
Vid. Rot. Parliam. anno 1. H. 6. nu. 15. he was stiled Rex Franciae & Angliae & Domimus Hiberniae.
[Ed.: Henry, by the grace of God king of England and France, and lord of Ireland, in the forty-ninth year since the beginning of his reign and in the first year of his resumption of the royal power.]
[Ed.: Supreme Head of the Church of England.]
[Ed.: Henry the eighth, by the grace of God king of England, France, and Ireland, defender of the faith, etc., and supreme head in earth of the Church of England and Ireland.]
Liverie of seisin incident to a feoffment. Vid. sect. 59.
Mirr. cap. 2. sect. 15. Bract. lib. 2. fol. 62 b. Flet lib. 6. cap. 1 & 54. & lib. 1. c. 13. Glanvil. lib. 7. cap. 1. & capa. 12. & 13.
[Ed.: begotten of a rightful marriage (for) he is a lawful heir whom marriage points out as such; who is born in wedlock.]
[Ed.: Only God may make an heir, not man. Haereditas (inheritance) and haeres (heir) are so called from haerendo (adhering), that is, firmly sticking, either because he who is an heir adheres or because the inheritance adheres to him who is the heir, even though many would like to be called heir, that is, lord of the lands etc. which have come to him.]
(a) Bract. lib 5. fol. 437. 438. Brit. cap. 66. fol. 167. & cap 83. Fleta. lib. 1. cap. 5.
[Ed.: Those who are born without human form shall not be considered children, as for instance when a woman gives birth to something monstrous or unnatural. But if nature has added or subtracted a little something, provided it not be excessive (for instance, if the offspring has six fingers, or four), he shall rightly be considered a child. If nature has rendered something useless, for instance if the offspring has twisted limbs, he shall not on that account be considered a monster.]
[Ed.: Those who are born of an unlawful intercourse are not reckoned among the children.]
(b) Vid. Sect 188. 399. Bract. lib. 2. fol. 92. Brit. fo. Fleta lib. 2 ca. 5. & 1. 6. c. 8. Fleta ubi supra. 3. R. 2. Entr. cong. 38.
[Ed.: whoever is born of a guilty union shall not be reckoned among the children.]
[Ed.: A hermaphrodite shall be treated either as male or as female according to the prevalence of the sex when warmed.]
(c) Mirror ca. 1. ca. 3. sect. ca. 5 sect. Bract. lib. 5. fol. 415. 427. Britt. fo. 29. Fleta lib. 6. ca. 47. 13. E. 3. br. 677. 25. E. 3. de natis ultra mare. 31. E. 3. Cosinage 5. 42. E. 3. 1. 11. H. 4 26. 14. H. 4 19. 20. 3. H. 6. 55. 22. H. 6. 38. 9. E. 4. 7. lib. 7. fo. 1. in Calvins case.
[Ed.: for want of subjection.]
[Ed.: on account of wrongdoing.]
1. E. 3. 4. 6. E. 3. 55. 27. E. 3 77. 3. E. 2. discent. Br. 64. 31. E. 1. discent. 17. 46. E. 3. Petition 20. 26. Ass. pl. 2. 49 Ass. pl. 4. 29. Ass. pl. 11. 9. H. 5. 9.
(d) Stanf. pl. cor. 195. 196. Bracton lib. 3. fo. 132. 133. 276. & lib. 5. fo. 374. Britton fo. 215. b. Fleta lib. 1. ca. 28.
(*) In the Exchequer Mic. 40. & 41. Eliz. in le Case de Hobby.
(e) Bract. lib. 4. fol. 130. Britton fol. 15. Fleta lib. 1. cap. 58.
(f ) Bract. lib. 5. fol. 421. 430. 434. lib. 2. fol. 12. Fleta lib. 6. ca. 39. 47. 14. H. 3. Bre. 877. 32. E. 3. Age 8. 10. E. 3. 535. 18. E. 3. 53. 13. E. 3 Ley 49.
[Ed.: in this case he suffers from a natural deficiency.]
(g) 21. E. 2. 29 Panorollus nova rep. 485, &c. Opus eximium 48. b. Lambard de priscis Anglorum legibus 120. 72. acc.
[Ed.: because in this case the affiliation cannot be proved.]
[Ed.: Let every widow be unmarried for twelve months, and if she marries she should lose her dower.]
(h) Bract. lib. 4. ca. 9. fol. 265. lib. 2. fo. 62. b. Fleta lib. 6. ca. 1. Lib. 8. fo. 54. Syms case.
[Ed.: heir is so called from inheritance.]
(i) Mich. 36. & 37. El. Rot. 25. Inter Gray. & Paulet in the Kings Bench. Stanford 25. b. 18. E. 4. 8. 22. Ass. 25. 18. H. 8. 2.
(k) 13. E. 3. det. 135. 139. 140. 47. E. 3. 23. 25. E. 3. fol. 43. 26. E. 3. fo. Vid. for an heirelome haereditarium or principalius, sect. 12.
(l) Mirror ca. 1. sect. 3.
(a) Bract. lib. 2. fo 85. Heref p. 8. E. 1. Ro. 8o. de Banco. Mirror cap. 2. sect. 18. Britton 151. b.
[Ed.: Suppose the heir is astrarius (found on the hearth), or that some ancestor in his lifetime restores his inheritance to the heir and renounces his own interest; it seems that the inheritance will never lie vacant and therefore that it cannot and ought not to be taken up, nor any relief given.]
(b) Registr. fo. 227. Bracton lib. 2. fo. 69. Britton fol. 165. Fleta lib. 1. ca. 14.
[Ed.: Writ to inspect the belly, where a woman feigned to be pregnant, to see whether she was with child.]
[Ed.: Note that if anyone having an inheritance takes someone to wife, and afterwards dies without an heir begotten of his body, so that the inheritance ought to descend to the brother of the deceased, and the woman says she is pregnant by the deceased, when she is not, the brother and heir shall have a writ de ventre inspiciendo (for inspecting the belly).]
[Ed.: where someone’s wife claims to be pregnant in the lifetime of her husband, when she is not, or after her husband’s death claims to be pregnant, when she is not, to the disinheritance of the true heir, etc., at the suit of the true heir by command of the lord king, etc.]
[Ed.: No one can be heir during the life of his ancestor.]
[Ed.: at the suit of the true heir.]
Britton fo. 165. b. Regist. ubi supra.
[Ed.: God alone makes the heir.]
Vid. Bracton, Britton & Fleta ubi supra. Registr. ubi supra. Bracton and Fleta ubi supra hare (ad exhaereditationem.)
[Ed.: The king to the sheriff, etc. greeting. A. has shown to us that, whereas R., who was the wife of Clement B., is not pregnant, she falsely says that she is pregnant by the same Clement, to the disinheritance of the selfsame A., inasmuch as land which was the selfsame Clement’s ought to descend to him the said A. by hereditary right as his brother and heir, if the aforesaid R. should have no issue by him, etc.]
(c) 10. H. 6. 7. 22. H. 6. 15. Pl. Com. 28. b. 22. E. 4 16. 2. H 4. 13. 20 E. 3. br. 377
(d) Lib. 5 fo. 96. 97. Britt. fo. 28. H. 8. Dyer. Pl. Com. 287, 288.[Ed.: Lib. 5 is 5 Coke Reports.]
(e) Bract lib. 2. ca. 39 fo. 92. b. Br ca. 39 fo. 99. b. Fleta lib. 6. ca. 1. 2. & lib. 3. cap. 2. 20. H 6. 35. 36. 19. H. 6. 17. 22. 74. 2. E. 4. 16. b. 4. E. 6 Pl. Com. 26.
[Ed.: If a gift is made in this way, as if I say, I give you such and such land: this gift does not extend to heirs but only to the life of the donor, etc.]
(f ) Vid. sect. 413.
(g) 7 E. 3. 25. Vid. sect. 686. 25. E. 3. 35. Bract. lib. 2 fo. 62. b. Vid. sect. 413.
(h) Pl. Com. 242. Seignior Berkleyes case.
(i) Vid. Britt. fo. 86. 121. & 130. 17. E. 3. 5. b. 33. H. 6. 22. 10. H. 7. 13. 14. 9. H. 7 11. 16. H. 7. 9. 15. E. 4. 10. 14. H. 6. 12. 35. H 6. 54. 24. Ass. 14. 40 Ass. 21. Tr. 5. E. 3. Rot 4 in Scaccario. 3. E. 3. 32. 7. E. 3. 40. 11. H. 4. 84. 12 H. 4. 12. 18 E 3. Conusans 39. b. 5 E. 4. 121. 38. E. 3. 4. Lib. 9 fo. 28. in Case de Abb. de Strata Marcella.
(k) Hil. 21. Eliz. Dyers manuscript, Inter Ansley & Johnson in Com. Banco.
(l) 18. H. 6. 11. b. &c. adjudge.
[Ed.: to a dean and chapter, to have unto them and their heirs and successors.]
[Ed.: to have unto him and his successors or his heirs.]
(m) 15. E. 3. tit. Counterplea de Voucher 43. 37. H. 6. 30. 11. E. 4. 1.
[Ed.: and his children.]
(n) Fleta lib. 3. cap. 8.
Pl. Com. 163.
[Ed.: Under which words ‘his heirs’ are comprehended all the heirs, whether near or remote, born or about to be born.]
[Ed.: under the appellation ‘heirs’ come the heirs of heirs, and so on infinitely.]
(a) Sect. 17. 62. 133.
[Ed.: all only.]
(b) Sect. 156. 161.
(c) Sect. 184.
(d) Sect. 190. 194. 746.
(e) Sect. 9. 67. 194. 204. 234. 236. 241. 405. 485. 478. 651. 655. 646. 620. 614. 637. 674. 692.
(f) Sect. 733.
[Ed.: status (estate) is so called from stando: (being established).]
(g) Tr. 40. Eliz. in le Countee de Derbyes case, by the Lo. Chancellor, les 2. chiefe Justices, & chiefe Baron.
(*) Vide sect. 49. & 66.
(h) Mirror c. 2. sect. 15. & c. 5. sect. 1. Bract. lib. 2. fo. 53. 366. 368. Fleta lib. 3. ca. 1. 2. 15. Britt. 84. 87. a. & fol. 63. 101. 102. 141. 142. agreeth herewith. Pl. Com. 171. Hill. & Grange.
[Ed.: incorporate inheritance.]
Mirror cap. 5. sect. 1. Britton cap. 34.
[Ed.: An Inheritance is the succession to every right which the deceased had. Inheritance is either corporeal or incorporeal; corporeal is that which can be touched and seen, incorporeal that which cannot be touched or seen.]
For the Antiquitie of Feoffments see the second part of the Institutes, Marlebridge ca. 4. 8. E. 3. 24. 18. H. 6. 24. 39. H 6. 39.
Genesis 23. [Ed.: because it is a gift of the fee.]
Vide sect. 57. Britton cap. 34. 44. E. 3. 41. See more of feoffment, sect. 60. See of factum, Sect. 259.
[Ed.: ‘Done’ (or grant) is the general name, more of which is feoffment, because done is general to all things mobile, feoffment is of nothing not attached to the soil.]
[Ed.: Gift is a general name, which is more than feoffment, because ‘gift’ is general in respect of all things movable and immovable, whereas feoffment is of nothing but the soil.]
[Ed.: between a charter and a deed.]
Lib. 3. f. 63. in Lincolne College case.
(i) Litt. lib. 3. c. de Attorn. sect. 5. 8. 6. 4. E. 6. Estates Br. 78. 26. H. 8. Testaments 18. 22 Eliz. Dier 371. Temps H. 8. tit. Conscience. Br. 25.
(k) 21. E. 3. 16. 34. H. 6. 7. 19 H. 8. 9. lib. 3. fo. 21. in Borastons case lib. 6. f. 16. 17. lib. 10. fo. 67.
(l) vide sect. 585.
(m) Mich 40. & 41. Eliz. in Error Int. Downhall & Catesby adjudge. Brooke tit. taile 21.
[Ed.: and his blood.]
[Ed.: to his seed.]
(n) Lib. 1. fo. 100. Shelleyes case 42. E. 3. 7. 19. H. 6. 17. b. 22. b. Pl. Com. 248.
[Ed.: upon an acknowledgement of right, as that which he has of his gift.]
(o) Litt. lib 2. ca. Tenant. common sect. 304, 305. cap. Atrorn. sect. 37. 4. Dier. Eliz. 263.
(p) Litt. lib. 3. c. Releases. sect. 479. 480. 20 H. 6. 17. 19. H. 6. 17. 22.
(q) Litt. cap. Releases. sect. 467.
[Ed.: that the aforesaid B. should recover against the aforesaid A. the aforesaid tenements with the appurtenances.]
27. H. 6. Lo. Vescies case.
[Ed.: And the exception proves the rule.]
(r) 39. Ass. 12. 41. E. 3. tit. Feoffments & Faits 254 14 H. 4. 13. 34. E. 3. Avowrie 258.
[Ed.: words which are referred to (in an instrument) have as much force by reference as if they were in being (i.e. in the instrument itself ).]
(s) Vide sect. 17 12. H. 4. 19. in Formdon.
(t) 8. E. 3. 27. 11. H. 7. 12. 22. E. 4. 11. H. 4. 84. 2. H 4. 13.
(u) 19. H. 6. 74. 20. H. 6. 36.
[Ed.: in free alms (frankalmoin).]
(w) Pl. Com. Lo. Berkleyes case.
(x) 29. Ass. 25. 15. H. 7. 14. 2. H. 7. 5. 11. H. 4. 3 21. E. 1. 21. Ass.
[Ed.: The laws themselves require that they should be governed by law.]
[Ed.: The rights to stunt forest trees so they will die and then to work the newly arable land.]
[Ed.: to have and to hold unto him for ever.]
(y) 40. H. 7. 7.
(z) 22. E. 3. 3. 45. E. 3. 20. 9. E. 2. 21 Lib. 4. f. 121. Bustards case. Vide Sect. 465 469. 610. 19. H. 6. 17. 22. 19. E. 2 garr. 85
[Ed.: Where the same reason exists, there the same law prevails.]
[Ed.: And remember that in all other cases, even if they are not here expressly moved and specified, if they are within the same reasoning they are the same in law.]
27. H. 8. ca. 16. 32. H. 8. ca. 2. 34. H. 8. ca. 5.
Sect. 531. 37. Ass. p. 38. Ass. p. 9. 12. E. 4. 9. & c.