Law, Book 2 · Chapter 8 – Chapter 14
CHAP. 8.
Of Rent Secke.
BAre hereditaments concerning land (for which no diſtreſſe can be taken) are a Rent ſecke and common.
A Rent Secke is a Rent without Lit. 48.libertie to diſtreyne. As where a Rent is ſo granted or reſerued as before, without clauſe of diſtreſſe.
When a Rent is granted for equalitie of partion among Coparceners, As vponupon two houſes, one worth xx. s. a yeare, the other worth x. s. allotted one to the one coparcener, the other to the other; & that coparcener that hath the houſe worth xx. s. a yeare, to pay v. s. yearely to the other, this rent may be diſtrained for though no ſuch libertie be granted.
The grant of a ſeigniorie, rent charge, & rent ſeck, as alſo of the remainder or reuerſion of any of theſe, or of the land it ſelfe, is nothing worth without Attornement, that is to ſay, the agreement of the tenant that preſently muſt be charged. As Lord, meſne, and tenant; the Lord grants his ſeigniory, Lit. cha. atturemēt.the Meſne muſt atturne, and not the tenant parauaile: for the Meſne is Tenant to the Lord, Lord, and Tenant, the Tenant letteth the Land for life, or giueth in Taile, ſauing the reuerſion to himſelfe: now if the Lord grant his ſeigniorie, he in the reuerſion muſt returne to the grantee, & not the tenant for life or in taile: for he in the reuerſion is tenant to the Lord, and not the other. But if the Tenant had let his land to one for life, the remainder in fee, there vponupon a grant of the ſeigniorie, the Tenaunt for life muſt atturne; for he is tenant to the Lord. So is not he in the remainder, whilſt Tenant for terme of life liueth. If lands be let for yeares, or giuen in taile, ſauing the reuerſion: VponUpon a Graunt of the reuerſion, the Tenant of the land muſt atturne. And an Attornement may either be by words; as to ſay, I agree or am content with the Grant; or I attorne to you, & become your Tenant by force of the grant: or elſe by deliuering to the grantee, a penie, halfe penie, or farthing in name of Attornment, or by any other matter implying an agreement, as a ſurrender to the grantee of the reuerſion, praying in aide of him, &c. And if ſuch attornment be not to the grantee in the life of the grantor, the Graunt is meerely void.
In the grant of a reuerſion depending Lit. 128.vponupon a Freehold, the Attornement of the Freeholder is ſufficient, though hee be not the tenant that preſently muſt bee charged. As if lands be let to a man for yeres, the remainder to another for life, and he in the reuerſion grant his reuerſion to another; the Attornement of him in the remainder is ſufficient.
CHAP. 9.
Of Common.
COmmon is a profit to bee taken in anothers land. As (a)9. H. 6. 35.feeding his beaſts, &c. And if a man giuegive to I. S. in frank mariage with his daughter, Common for all his beaſts, or other mens (if hee ſhould hauehave none of his own) to doe his buſineſſe yearely, & to feed with the beaſts of the grātor where they ſhould goe: there if the grauntor come afterwards to hauehave no beaſts, yet the Grantee ſhall hauehave his common. But if the graunt bee whereſoeuer the beaſts of the grauntor go, &c. there the grantee ſhall not hauehave common, but when the others beaſts are in common. Alſo vponupon a grant of common throughout a mannor, yet hee ſhall not common in gardein, or land ſowed, &c. nor take his common with beaſts that are … E 2. dower 123.not commonable, as hogs, &c.
So of a common of eſtouers, that is to ſay, taking of reaſonable houſe-boote, and hay-boote, &c. And ſuch manner of profits Ibid. 2. E. 2.(though they be appendant to the freehold) cannot be parted. For if ſuch an heritage diſcend to parceners, one ſhall hauehave the whole profits, and the other Siſters an allowance. And the wife for her dower ſhall hauehave but an allowance onelyonly.
Statutes.
Merton Cap. 4. The Lord of waſt woods and paſtures, may approoue againſt his Tenant, if he leaue ſufficient common and paſture to his Tenant, with egreſſe and regreſſe according to his land.
Weſtm̄. 2. Cap. 46. Such a Lord may approoue in like ſort againſt his neighbours which hauehave common appurtenante, and for his Winde-mill; neceſſarie increaſe of Court, or Court-lodge.
Hither belongeth chemin, or way ouer ones land from one certaine place to another, whether from cloſe to cloſe, or from his houſe, or the kings high ſtreet, or church. and other Hereditaments of like nature.
CHAP. 10.
Of Villeines.
BAre hereditaments that concern the perſon, or meerly of the perſons thē ſelues, or by reaſon of the perſon.
Of the firſt ſort are villeines. A Villeine is ſuch a ſeruant as himſelfe, and whatſoeuer he poſſeſſeth, Land, 22. Aſſ. pl. 37.rent, &c. but not things in action, as an obligation, debt, couenant, or warranty made vntounto him, is the Lords (a)3 H. 4. 15.if hee claime it. But the wife which the villein marrieth after his purchaſe of land, & before the Lord 19. E. 3. Dow. 171.enter, ſhall be indowed. And if he make a feoffment before the Lord enter, the feoffee ſhall retaine it, and his Executors ſhall hauehave the goods not claimed by the lords in his life time.
Statutes.
19. H. 7. cap. 15. VponUpon a feoffement made to the vſe of a villeine, the Lord may enter into the land it ſelfe.
Prerogatiue.
The Lord cannot ſeiſe his villein in the Kings preſence.27. Aſſ pl 49.
The children of a Villeine are alſo Villeines. And if one confeſſe himſelfe a Villeine 18 E 4 30. b. 18 E 4 ibid. 19 H. 6. 32.in Court of Record, the iſſue hee had before are frank: but thoſe born (b) after are villeines.
Villenage beginneth by confeſſing a mans ſelfe to be one in a Court of Record. 41. E, 3 villen 6.And therefore in a Praecipe quod reddat, if the Tenant ſay that he is Villeine to I. S. & holds the land in Villenage; the demandāt ſaith he is franke, &c. and he is found frank by the Iurie: yet he remaineth a Villein to I. S.
A Villeine is ſet free, we call it manumiſſion or infranchiſement, when the lord inableth him to poſſeſſe any thing againſt 11. H. 7. 13. Lit…tlet 45.himſelfe. As by granting him an annuity, making an obligation or leaſe for yeres vntounto him, or a feofment of any lands by deed, or without: & whether it be in fee ſimple, fee taile, or for life. But to make a leaſe at will vntounto him, is no infranchiſement: for he hath no certaintie of his eſtate, ſeeing the Lord may put him out when he will.
Statutes.
9 Ric. 2. cap, 2. In a ſuite by the Villeine againſt his lord, the lords ſhall not be barred of their villeins, becauſe of their anſwer in Law.
CHAP. 11.
Of Annuitie.
THoſe by reaſon of the perſon, are Annutties, and Corrodies, or Office.
Annuitie is a yearely rent to be Lit. 48.had of the perſon of the Grantour. As vponupon an annuitie granted, or a rent out of his coffers, or a rent out of land, without ſaying more. But if the Deed be, That if A. be not yearely paid x. s. at Eaſter; hee may diſtreine for it in the Mannour of D. This is a Rent-charge (for the Mannor of D. is charged with a diſtreſſe) but no annuitie: nor the perſon of the Grantor charged becauſe he granteth not any rent, but granteth onelyonly that he may diſtreyne. So if by expreſſe words he inſert in the Deed of the grant of a Rent-charge, Prouiſo quod non extendat ad oner andam perſonam meam per breue de annuitate, &c.
CHAP. 12.
Of Corrodie.
COrrodie is a partition for ones ſuſtenance. Be it bread, ale, herring, a a. 25. Aſſ. pl. 7. b. 31. H. 6. 16. Aſſ. 16.yearely robe, or ſumme of money for the robe. So of a chamber and ſtable for my horſes, when the ſame is coupled with other things, as with a certaine meſſes of fleſh, bread, ale, &c. But a chamber and ſtable themſelues are not any Corrodie. And in the firſt caſe they ſhall paſſe without liuerie and ſeiſin, but not in the other.
CHAP. 13.
Of Office.
OFfice is a dutie of attendance vponupon a charge. And therefore the grant of an office to an ignorant man that hath vtterly no skill at all, is meerely voyd. As if the king by his letters Patents make a Clark of the 5. E. 4 Rot. 66. per Br. office 48.Crowne in the Kings Bench, which was neuer exerciſed in the Office, nor in any other Office there, & ſo vtterly inſufficient to ſerue the King and his people; the grant is voyd, and the Iuſtices may refuſe him. So is the preſentment of an vnlearned man to a Church, meerely void. Likewiſe the Non feaſance and the not attendance vponupon an 39: H. 6 31.office, hath a Condition in Law annexed to it. As if the Marſhall ſuffer but one voluntarily to eſcape … he priſoners, it is a forfeiture. But in negligent eſcapes what ſhall make a forfeiture of the office, and what not, both for the number of negligēt eſcapes, and for the greatneſſe and ſmalnes of them (as if ſome that eſcape were committed vntounto him for ſurety of peace, & were ſuſpitious men) lieth wholly in the diſcretion of the Court: & the King may himſelf … H. 7. 29.hauehave an office: as a foreſtſhip grāted to one in taile, the remainder to the King, and his heires is good: for although he cannot in reſpect of the Maieſtie of his perſon, exerciſe the office himſelfe; yet he may grant it ouer to one that may exerciſe it.
Statutes.
5. E. 6. cap. 16. The office or deputation of any office, or any part therof which concerneth the adminiſtration or execution of Iuſtice, or the receite, controllment, or payment of the Kings monie, &c. or ſuertie of the Kings lands or cuſtomes, or any adminiſtration of neceſſarie attendance in the Kings Cuſtome-houſe, or the keeping of the Kings places of ſtrength, or the Clarkſhip of any Court of Record, ſhall not bee bargained & ſould, or any reward or agreement of reward taken for it, vponupon pain, that the ſeller, &c. ſhall forfeit all his intereſt in the office or deputation, &c. And the buyer be a diſabled perſon, to occupie or inioy the ſame: And all bonds, &c. to bee voide, as againſt him by whom rhey are made. Prouided, That all Acts executed by any perſon offending before he be remooued from his office, &c. ſhall remaine good.
This Statute extendeth not to any office of inheritance, nor to any Parkerſhip, nor to any offices to be giuen by the chiefe Iuſtices of the Kings bench, or Cōmon place, or by any Iuſtices of Aſſiſe.
CHAP. 14.
Of Franchiſes.
BEſide the Hereditaments alreadie handled (a)15 E. 4. 7. 4 El Pl. 219. 6. F. 3 per 30 H. 8. Dy. 44.there be certaine other deriued from the Kings Prerogatiue, which are termed Franchiſes. For all Franchiſes are deriued from the Crowne: and therefore are extinguiſhed if they come to the Crown againe, by eſcheat, forfeiture, &c. For the greater drownes the leſſe.
A franchiſe is a royall priuiledge in the hands of a common perſon: ſo we cal eueryevery ſubiect: and is forfeited by miſuſing of it. As keeping Faire or market vponupon Monday 22 Aſſ pl. 34.when Wedneſday is granted him: or keeping Faire vponupon two daies when hee hath but one granted: for that is a miſuſer. (But keeping market vponupon a Monday and Wedneſday, when only Wedneſday is granted, is a forfeiture but of that which he vſurpes more than is granted) Claiming a faire, &c. 2 H. 7. 11.for two dayes by Patent, when onelyonly one is granted, is a forfeiture of both. But if he claime one by Patent, and another by Preſcription, & this latter found againſt him; yet he forfeiteth but that day onelyonly. Miſvſing 22. Aſſ. ibid.of any point, where there be many in one Franchiſe, is a forfeiture of them all. But not where the Franchiſes are ſeuerall. But non vſer of a market, &c. is no forfeiture 2. H. 7. ibid.of it, as it is of the office of the Clarke of a Market, and ſuch like, which of neceſſitie muſt be vſed.
Statutes.
27. H 8. cap. 24. No ſubiect ſhall hauehave authoritie to pardon any felonie, or any Acceſſaries to felonie, or any outlawrie for ſuch offences. Nor to make any Iuſtices of Eyre, Aſſiſe, Peace, Gaole-deliuerie. All originall Writs, inditements of Treaſon, Felonie, and Treſpaſſe, and Proceſſe vponupon the ſame, ſhall be onelyonly in the Kings name. And the Teſte in his name that hath the Franchiſe.
Euerie Writ and Enditement whereby a thing is ſuppoſed to be done againſt the Peace, ſhall be ſuppoſed to be done againſt the Kings peace onelyonly, and not againſt the peace of any ſubiect.
The King ſhall hauehave all fines, iſſues, amerciaments, & forfeitures loſt by any Officers of Franchiſes for non execution, or inſufficient retornes of proceſſe, or for any miſdemeanor concerning their office, with many prouiſoes in the ſame ſtatute.
The kinds of Franchiſes are diuers, & almoſt infinite.
Of ſuch ſort are the libertie of hauing a Court of ones owne; of drawing cauſes out 9. H. 7. 11.of the Kings Court into his owne. In the firſt caſe we call it tenere placita, when hee is to hold it before his bailif in ſuch a place, and therein a man may preſcribe. (In the other caſe we call it Coniſance of plea: and that lieth not in preſcription but in demād, and is alwayes of Record) of returning Writs, &c. Alſo Warrens which a man 35. H. 2. ….may hauehave in anothers land, as well by the Kings grant, as by Preſcription. And if the King grant to one Warren in his land, and afterwards the grantee alien the land, reſeruing the franchiſe. Markets, (a)2. H 7. 11. 22. Aſs pl. 34.Fayres, tolle (b)9. H. 6. 45.of euerie buyer for things he buyeth there, not (c)28. Aſſ pl. 53.being for his own expences, For (d)9. H. 6 45.neither ſhall the ſeller pay toll, but the buyer: neither ſhall a man pay toll for the things he bringeth to the Faire, but for the things he ſelleth. But by cuſtom he may for euerie thing brought to the Faire, & for his ſtanding alſo. and whatſoeuer liberties & cōmodities elſe that (created firſt by the kings ſpecial grant, or of their own nature belonging to him) are giuē to cōmō perſons to hauehave any manner of eſtate in.