Jurisdictions, Part 114
Homage and Fealty.
And for that, that the third Article of the charge is to inquire of Services withdrawn, and for that, that ſome Tenants make Homage and Fealty, and ſome Fealty only, you ought to ſee the form in Maſter Littleton, fol. 18. and 19. Of making of one and of another, and what ſhall be one and what the other, and that none ſhall make Homage nor take Homage, but ſuch a one which hath an Eſtate; in Fee ſimple or in Fee taile, in his own right or in right of another, and if a Woman having Lands in Fee, or in taile; takes a Husband and have Iſſue. The Husband in the Life of his Wife ſhall make Homage, but before Iſſue it ſhall be made in both their names, and if the Wife dye the Husband ſhall not make Homage.
HOmage ſhall not be made to Tenant in Dower, for it ſhall be made to none, if he hath not Inheritance, 22 Ed. 3. f. 19.
7 H 4. fol. 21. He which holds by Knights Service ſhall make Homage.
Litt. fol. 22. He that holds by Socage may hold by Homage, and ſhall make Homage.
One cannot avow upon a Husband and a Wife, as of right of the Wife for Homage, unleſſe that the Husband hath Iſſue by the Wife, but if he avow upon them, it need not be alleadged, but it ſhall be intended that they have Iſſue, ſee 44 Ed. 3. fol. 41. and 43 Ed. 3. fol. 13.
Corporation cannot make Homage, for corporation cannot appeare but by Attorney, 33 H. 8. Title Fealty 15.
Biſhop or Abbot may take Homage, contrary of Parſon of a Church, Time of Ed. 1. Tit. Fealty 12.
In a (Perque ſervitia) an Infant was conſtrained to attorn, and to make Fealty, notwithſtanding his nonage, 20 Ed 3. Tit. 19.
Tenant for yeares ſhall make Fealty to his Leſſor, Lit. fol. 29. D. 9 H. 6. fol. 43. and 5 H. 7. fol. 11. accordingly, where a Rent is reſerved.
By all the Juſtices, that Tenant for yeares ſhall not make Fealty, for it is (as I beleeve) to be intended not to the Lord, but to the Leſſor, 10 H. 6. f. 13.
It ſeems that a Leſſor may avow upon a Leſſee for years as within his Fee, by the Mannor, and for that ſhall make Fealty to his Leſſor, and may avow for that, 40. Ed. 3. fol. 34.
If Rent of a Leſſee for yeares be behinde, the Leſſor cannot avow upon the Termor, as of Tenant upon the Land, but upon the matter, 47 Ed. 3. fol. the laſt.
24 H. 8. Tit. Fealty 8. In the Exchequer held, that if Lands diſcends to me which is held of J.S. by Homage, and I make to him Homage, and after other Land diſcends to me by another Anceſtor held of J.S. alſo by Homage I ſhall make Fealty, but not Homage again, for I am become his man before, the ſame Law is, if both the Tenements are held of the King by Homage, he ſhall not have two Homages but one Homage only, Lit. f. 29
Tenant at will by the common Law ſhall not make Fealty to the Leſſor, but Tenant by copy at will according to the cuſtome of the Mannor ſhall make Fealty to his Lord, Lit. in the end of the firſt book and f. 29. and 10 H. 6. f. 13. accordingly.
If there be Lord and Tenant and the Tenant holds three Acres of the Lord by Fealty and Rent, and aliens all the three Acres, the Lord is not held to change his Avowrie without notice, and to avow upon the Feoffee, for Fealty and Rent: But if he will he may; the ſame Law, if he alien but one Acre, not that the Statute of Weſtminſter the third is, that he ſhall hold for that particular, yet this is upon notice, 8 Ed. 4. fol. 12. and 47. Ed. 3. fol. 4.
If the Tenant make a Feoffment, and there is no notice made to the Lord; and the Tenant dies, the Lord may diſtraine the Iſſue, for Fealty and Rent, and avow upon him, for it ſufficeth that he dies Tenant, though he doth not dye ſeiſed of the Land, 44 Ed. 3. fol. 13.
If the Tenant be diſſeiſed and the Diſſeiſor dyeth ſeiſed, the Lord there cannot diſtraine the Tenant for Fealty, but the Iſſue of the Diſſeiſee, 32 H. 6. fol. 31. and 34 H. 6. fol. 51.
If the Tenant hold by Fealty and Rent, if the Tenant make a Feoffment in Fee, the Lord may diſtraine the Beaſts of the Feoffee for Fealty and Rent: And make avowrie upon the Feoffor till notice be given, and after notice given he ſhall avow upon the Feoffee, if he tender the arrearages, otherwiſe not, for by the Feoffment and notice he ſhall not looſe the arrearages, but may diſtrain as above, and avow upon the Feoffor for the arrearages. But I intend if the Lord accept Fealty of the Feoffee he hath loſt the arrearages, 47 Ed. 3. f. 4.
Note that by the Statute of, 21. H. 8. chap. 9. One may avow the taking in the Land if he will, as within his Fee and Lordſhip, as in Lands held of him; without avowing or juſtiffing of any perſon certaine.
Where one in ward of the King holds of a common perſon alſo by Homage or Fealty, the Lord cannot diſtraine for Homage, or Fealty; during the time that it is in the Kings hand, and yet the Signiorie is not ſuſpended but only from diſtreſſe, ſo that after he may diſtraine, 13 H. 7. fol. 16.
If Tenant in taile which holds by Fealty makes a feoffment, yet the Donor cannot avow upon the Feoffee for Fealty, but if one recover againſt a Tenant in taile, the Donor ought to avow upon him, which recovers for the Fealty, and if there be Lord and Tenant, and the Tenant were diſſeiſed, and the Lord accepts the Rent of the diſſeiſor, yet that ſhall be but as a Bailiff to the Diſſeiſee, and ought to avow upon the Diſſeiſ. otherwiſe I ſuppoſe of Fealty, 41 Ed. 3. f. 26.
If there be Lord and Tenant by Homage and Fealty, and the Tenant be diſſeiſed, and the Lord accept Homage of the Diſſeiſor, he cannot avow for Homage upon the Diſſeiſee, Fitzh. 142. E.