The Principal Laws of England, Treatise · Part 5 – Part 8
❧ Tenaunt by copy of courte rolle.
THere is an other kynde of tenaunt at wyll, whiche is called tenaunt by copy of the courte rolles. And this is when a man is ceased of a maner wythin whiche, it hath bene vsed tyme out of mynde, that the tenauntes within the precincte of the said maner, hauehave holden landes and tenementes to them & to their heyres in fee simple, fee tayle, or for terme of life, at the wyll of the lorde according to the custom of the maner. And such a tenaunte can not aliene or sell his land by his dede, for if he do, the lāde or tenemente that is so aliened and sold, is forfayted into the lordes handes, but if he wol alien his copy hold lande to an other, he must according to the custome, come into the lordes courte, and there surrender it vntounto the lordes hande, to the vse of hym that shall hauehave the state. The form… of which surrender is cōmonlye vsed to be this.
Ad hāc curiam uenit A. de A. & sursum reddit in eadem curia unum mesuagium. &c. in manus domini ad usum C. de D. & heredum suor… uel heredum de corpore. &c. Et super hoc uenit praedictus C. de D. & coepit de domino in eadē curia mesuagium praedictum, habendum & tenendum sibi. &c. ad uoluntatem domini secundum consuetudinem manerij, faciend. & reddend. inde redditus, seruitia, & consuetudines inde prius debitas & consuetas. &c. Et dat domino pro fine. &c. Et fecit domino fidelitatem.
These as I said be called tenauntes by copye of courte rolle, bicause they hauehave none other euidence to shewe concernyng theyr landes, saue onelyonly the copies, of ye rolles of theyr lordes courte.
Neyther can these tenauntes sue or be sued for such landes, in y• kynges courte by wryte or otherwyse, but if they wyll implede or sue others for suche copye landes, they must do it by way of playnt in the lordes court after this sorte.
A. de B. queritur uersus C. de D. de placito terrae, uidelicet de uno mesuagio, xl. acris terrae .iiij. acris prati &c. cum pertinen̄. Et facit potestationem sequi quaerelam istam in natura breuis domini regis assise mortis antecessoris ad cōem legem uel &c. plegii de prosequēdo F. G. &c.
❧ Nowe althoughe some suche tenauntes hauehave an inheritaunce accordynge to the custome of the maner, yet in very dede they are but tenantꝭ at the wyll of the lorde. For, as some men thynke, if the lorde wyll expell them and put them forth, they hauehave no remedy at al, but to sue vntounto their lorde by weye of peticion, desyrynge him to be good vntounto thē. For if they myght hauehave any remedye by the law then shulde they not be called (saye they) tenauntes at the wyl of the lord after the custome of the maner. But other men of no lesse lernynge and prudency hauehave bene of contrary sentence: as lorde Bryan chiefe iustice, in the time of king Ed. the iiij. whose opinion was alwayes, that if suche tenaunt by the custome (payenge his seruices) be eiected and put forthe by his lorde without cause reasonable, he maye very wel bryng and maynteyne an action of trespace agaynste his lord at y• cōmon law: as appereth termino Hilarij anno. xxj. E. iij. Also lorde Danby chiefe iustice in likewyse, was of the same iudgement: as appeareth Termino. Mich. anno. vii Ed. iiij. where he saith that the tenāt by the custome is as wel inheritable to hauehave his lande after the custome, as is he that hath a free holde at the common law, but the determination of this question I remit to my great maysters, which cā solue the knottes and enigmaes of the lawe.
For asmoche as yet styl of this matter, Causidici certant & adhuc subiudice li… est.
❧ Also ye shall vnderstand, that the vsage of some Manour is, when the tenaunte wyll surrender his land to the vse of an other, that he shall take a wande in his hande, and deliuer it to the stewarde of the court, and the stewarde shal deliuer the same wand in name of seisin to him that shall take the lande: and suche a tenaunte is called, tenaunte by the verge. Diuerse other customes there be of surrendryng of copy hold landes, which here for tediousnes I wyll omytte. And forasmoch as tenauntes by custome of the Manoure, hauehave by the course of the common lawe no free holde: therfore they be called tenaū tes of base tenure.
Hytherto I hauehave treated of the first membre of oure diuision, that is to wytte, of chatelles, for as I sayde, all leases for terme of yeres, and at will be accōpted in the law but as cateles and be comprysed vnderunder that name, saue that they be called cateles reals where as kyne, oxen, horses, moneye, plate, corne, and suche lyke be called chatell personalles. Nowe we wyll procede to thexplaniciō of the second membre, that is to say, of free holdes
❧ A diuision of free holdes.
FRee holdes or franke tenemētes a man may hauehave in sūdry wyses, for ether he is seased for terme of his owne lyfe, or for terme of an other mans life. Yf he be sesed for terme of his owne life, either he hauehave gotten such estate by way of purchase, or els the law hath entiteled him therunto. I call it by purchase, whether he commeth vntounto it by his owne barganing and procuremēt, or by the gyft of his frende, and I call it by the operation and intitelynge of the lawe, whan a man maryeth a woman that is an in heritres, and hath issue by her, and she dyeth, nowe shal he hauehave the landes durynge his life by the course of the lawe, and shal be called tenaunte by the curtesye of Englande.
In likewise, yf a man be seased in fe… simple: or fee tayle of landes, and taketh a wyfe, and he dyeth, the law giueth vntounto the wyfe the thyrde parte of her husbandes lādes for terme of her life, and she shal be called tenaūt in dower.
❧ Tenaunt for terme of life.
TEnaunte for terme of life, is he that holdeth landes or tenemētes for terme of his owne life, or for terme of an others lyfe. Howe be it the most frequent and common maner of speakynge is to call him that hath estate for terme of his own life, tenaunte for life, and him that hath estate for terme of an others life, tenaunt pour terme dautre vie, that is to saye, tenaunte for terme of an others life.
Ye shal note, that like as he that maketh the lease is called the lessoure, & he to whome the lease is made is called the lessee, so he that maketh a feffement is called the feffoure, and he to whome the feffement is made, the feffee.
Also if tenaunte for terme of lyfe, or tenaunte for terme of an other mans life do wast, the lessour or he in the reuersion shall maynteyne very wel an action of waste agaynste hym, and shall by the same recouer treble damages.
Finally, ye shall vnderstand that by an acte of parliamēt made in the xxvii. yere of oure Souerayne lorde that now is, king Henry the eight, it is enacted that no free holde, nor estate of inheritance shal passe ne take effecte but by dede indented, sealed & enrolled in one of the kynges courtꝭ at Westmynster, or els wythin the same countie where the lande dothe lye: as by the sayd acte more at large appereth.
❧ Tenaunt by the curtesi.
TEnaunt by the curtesye of Englande, is he that hath maryed a wyfe inherited, and hath had issue by her, and she is deade, in this case the lawe of Englande permytteth and suffreth the husbande of suche wyfe to reteyne all his wyues landes that she had either in fee simple, or fee tayle so longe as he lyueth: And this is by the curtesye and vr…anitie of Englande, for this thing is vsed in none other region.
But in thys case it is requyred that the chylde ve vitall, that is to saye, be borne and broughte forth i… to this worlde aliue, and therfore the common sayeng hath bene, that onles the chylde be harde crye, the father shall not be tenaunte by the curtesye, for the onelye proue and argument of lyfe in an infaunt new borne is the vagite and cryenge.
Ye shal furthermore vnderstand, that onlesse the husbande be in actual and reall possession of his wyues landes, & seased of them in her right, he shall not be tenaunte by curtesye after her death. And therfore yf landes descende to a mans wyfe, so that she is tenaunt in the lawe, and to eueryevery mans accion, yet if the husbande hauehave not made an actuall entreedurynge the couerture and matrimony betwene the… he shall not be tenaū … by the curtesye, for it shall be reputed and iugged his foly and negligence that he wolde not entre in her lyfe tyme.
Otherwyse it is of aduousons, … ̄tes, and such other thynges, which forthwyth when they descende be in a man or woman wythout any entre or further ceremonye of lawe.
Note, that if tenaunte by the curtesye of England wyl suffre or make any wast in the landes or tenemētes that he so holdeth, he is punyshable therfore by action of wast.
Also it is to be knowne, that of thinges that be in suspense, a man shall not be tenaunt by the cur…sye, and therfore yf a man be the tenaunt in fee simple of certayne lande, and doth entremary wyth a woman that is the seignoresse or lady of the same and hath issue by her, and she dyeth, yet he shal not be tenaunt by the curtesye of the lordshyp of seignorye, bycause himself is tenaunt of the land, and therfore the lordeship is suspended for the time, for a man can not be both lorde and tenaunt of one thing but if he had not bene tenaunt of the lande, he shulde hauehave had the lordeshyp after the deathe of his wyfe by the curtesie of Englande very well.