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Xeoal Classic Series 



LITTLETON'S TENURES 



Icdal Cla00ic Qevies 



QLANVILLB 

IntroductioD by Joseph Henry Beale, Jr., A.M., LL.B. 

BRITTON 

Introduction by Hon. Simeon L. Baldwin, LL.Dl 

LITTLETON'S TENURES 

Introduction by Eufrene Wambaugb, LL.D. 

MIRROUR OP JUSTICES 

Introduction by Hon. William C. Robinson, LL.D. 



LITTLETON'S TENURES 



IN ENGLISH 



■DITBD BT 

EUGENE WAMBAUGII, LL.D. 

PBOFBSSOR OF LAW IN HARVARD UNIVERSITY 



WASHINGTON, D. C. 

JOHN BYKXE & CO. 

LAW PUBLISHERS AND BOOKSELLERS 
1903 



201576 

Copyright. 1903, 
By JOHN BYRNE & CO. 



THIS EDITION 

IS DEDICATED TO 

THE LEARNED SOCIETY WHEREIN 

LITTLETON 

FOR HORE THAN FOX7R HUNDRED YEARS 
HAS BEEN REGARDED WITH PECULIAR VENERATION^— 

€I)e Sinner €tjxiplt. 



CONTENTS. 



PAGK 

FREFACB ▼ 

INTRODUCTION 

I. Biography xi 

II. Bibliography Ixvii 

The Tenures. 

BOOK I. 



CHAPTER PAOB 

I.— Fee Simple 1 

II.— Fee Tail 7 

III.— Tenants in Tail after Possibility, etc 18 

IV.— Curtesy of England 15 

V. — Dower 16 

VI.— Tenant for Life 24 

VII.— Tenant for Years 26 

VIII.— Tenant at Will 81 

IX.— Tenant by Copy 88 

X.— Tenant by the Verge 86 

BOOK II. 

I. — Homage 89 

II.-Fealty 48 

III. — Escuage 45 

IV.— Knight's Service 49 

v.— Socage 58 

VI.— Frankalmoign 66 

5 



6 CONTENTS. 

PAOB 

Vll. — Homage Ancestral 71 

VIII.— Grand Serjeanty 75 

IX.— Petit Serjeanty 78 

X. — Tenure in Burgage 79 

XL— Viilenage 84 

Xn.— Rents 100 

BOOK m. 

I.— Parceners 112 

II.— Parceners by Custom 122 

III. — Joint-tenants 129 

rv. — ^Tenants in Common 187 

v.— Estates upon Condition 158 

VI.— Descents which Toll Entries 185 

VII.— Continual Claim 197 

Vni.— Releases 212 

IX. — Confirmation 289 

X. — Attornment 251 

XI. — Discontinuance 269 

XII.— Remitter 298 

Xm.— Warranty 812 

Tabula 889 

Epilogus 841 



PREFACE. 



Unfortunately, it is not possible to fix the exact 
date of Sir Thomas Littleton's birth ; but the year was 
certainly in the earliest part of the fifteenth century, 
and thus this edition of The Tenures serves to commem- 
orate — though, doubtless, only approximately — the five 
hundredth anniversary. 

The occasion obviously makes it proper to present a 
somewhat elaborate account of the author's life and to 
give as complete a list as practicable of the editions of 
this book. Hence, in a search for facts or points of 
view heretofore possibly overlooked, much time has 
been spent in the neighborhoods where Littleton lived 
and worked, and still more time with manuscripts and 
printed books in many hospitable libraries. 

Yet while it has seemed appropriate to prepare thus 
a new biographical and bibliographical introduction, 
it has seemed equally requisite not to give a new trans- 
lation, but simply to edit the translation adopted by 
Coke. This familiar version, to be sure, is not perfect. 

V 



vi PREFACE. 

It appears to be chiefly a reprint of the work of some 
early and rather unseholarly translator, with merely 
such modernization in language as was required by the 
taste of Coke's day. It contains even more numerous 
interpolations than are pointed out by Coke himself. 
It omits many authentic passages. Now and then it 
mistranslates. Nevertheless it has several strong rec- 
ommendations. To begin with a matter of form, this 
version is expressed in an archaic phraseology peculiarly 
appropriate for such a book, and, fortunately, the only 
archaic phraseology with which all present readers may 
fairly be expected to be acquainted — ^the diction of 
Shakespeare and of the King James Bible. To pass to 
a more practical point, this version long ago became 
the standard representative of the words of Littleton^ 
and it has been quoted in countless arguments and opin- 
ions and treaties ; and hence, in an edition intended — as 
is this present edition — to be as serviceable as pos- 
sible to the profession, this common version should be 
followed, unless, indeed, such a course will lead to harm. 
To come finally to matter of substance, upon careful 
examination this version, while open to criticism as 
already indicated, has been found to give almost inva- 
riably an accurate view of the author's meaning. These, 
then, are the reasons for deciding to reprint, with 
neither omission nor addition, the now venerable stan- 
dard version as given in Coke upon Littleton, and to 
insert such marks and foot-notes as will enable the 



PREFACE. Vii 

reader to make amendments, if he wishes, in accord- 
ance with the most trustworthy editions in Law French. 
No changes have been made in the text, with the ex- 
ceptions that antique punctuation and capitalization 
and spelling have not always been preserved, and that 
a very few peculiarly annoying mistranslations, based 
upon mere misprints and the like, have been corrected 
in instances which the foot-notes fully explain. Pas- 
sages believed to be spurious have been inclosed in 
brackets. Passages that ought to be inserted have been 
printed in the foot-notes, and have been there inclosed 
in braces. Many other amendments have been sug- 
gested in the foot-notes. The rule has been to disre- 
gard matters of no appreciable importance; but old- 
fashioned standards have sometimes been taken into ac- 
count in deciding what is important, and thus it has 
happened that variations as to " item " and " nota " and 
*^&c." have received attention in accordance with the 
views emphatically expressed by one whom an editor 
of Littleton learns to respect more and more — Sir Ed- 
ward Coke. E. W. 
January 1, 1903. 



INTRODUCTIOK 
I. 

BIOGRAPHY. 

One of the most famous books ever written is this 
small volume containing an orderly and exact presen- 
tation of land law at the time midway between the Nor- 
man Conquest and the present day. There have been 
so many changes in the law that doubtless many lawyers 
consider this treatise obsolete. Yet land law is al- 
tered less rapidly and less radically than other branches, 
and this is one reason why this little classic has outlived 
the author by four centuries ; and even if the lapse of 
time had rendered the work useless as an introduc- 
tion to existing law, its arrangement, conciseness, and 
accuracy would continue to gain for it the favor of any 
one who appreciates a masterpiece. 

Littleton is far from being either the earliest or the 
latest of the great legal authors. Glanville, Bracton, 
Littleton, Coke, Blackstone: these are the five masters. 
The approximate dates of these five writers are strangely 
easy for an American lawyer to bear in mind« Qlan- 

xi 



Xii INTRODUCTION. 

ville wrote just before, and Bracton just after, the sign- 
ing of Magna Charta gave a starting point for Amer- 
ican constitutional law. Littleton wrote just before the 
discovery of America created the possibility that not 
merely a few islands but the greater part of the world 
may be governed by law that had its earliest home in 
England. Coke wrote in the time of Elizabeth and the 
first two Stuarts, when Shakespeare and Bacon and the 
King James version of the Bible were unconsciously 
laying the foundations of American thought and letters, 
and when the colonists of Virginia and Xew England 
were bringing the English law to its new and larger 
home. Finally, Blackstone wrote just before the ideals 
encouraged by religion, literature, and the law resulted 
in American independence. 

Although Littleton stands third in chronological order 
among the five famous authors named, there is one 
point of view from which he may fairly be called 
the earliest great writer upon the law of England ; for, 
whereas in form or in phraseology, though not in es- 
sence, the works of Glanville and Bracton are some- 
what affected by Justinian's Institutes, this treatise 
bv Littleton is wholly free from any tincture 
of the law of Rome. In short, this is the first 
important law book that is thoroughly English. Ap- 
parently, Roman law was not studied by Little- 
ton. The reason for the appearance of a distinctly na- 
tional book is not difficult to find. The reforms of 



INTRODUCTION. xiii 

Henry the Second, Edward the First, and Edward the 
Third had resulted in a fairly complete system. The 
land law had always been largely the mere local law 
of England ; and it became still more strictly local 
through Magna Charta, and the statutes of Merton,* of 
Westminster I.,^ of Gloucester,^ of Westminster II. (De 
donis conditionalibus),'* and of Westminster III. 
(Quia emptores),^ The development of a systematic 
body of law had been still further aided by the Year 
Books. Finally, the growth of the inns of court, which 
date either their foundation or their conspicuous im- 
portance from the fourteenth century, had furnished an 
organized profession, studying the English law in both 
a practical and a scientific spirit. The inevitable re- 
sult must have been before long a law book that should 
be English through and through — a book built upon the 
author's own perception of practices actually existing 
and upon his knowledge of English statutes and of Eng- 
lish decisions. 

Enough is known of Littleton's professional career 
to explain how he happened to be well fitted to write 
such a book ; but little is known of his birth, his early 
training, his character, and, in short, of the man him- 
self. \ 

In the neighborhood called Frankley, six miles south- 
west of the center of a peculiarly modern city, Birming- 

1 20 H. III. (1235-6). « 3 E. I. (U275). « 6 E. I. (1278). 

* 13 E. I. (1285). » 18 E. I. (1290). 



xiv INTRODUCTION. 

ham, which in Littleton's time was a mere village, is the 
site of Frankley Manor House, the traditional place of 
Littleton's birth, residence, and death. The house disap- 
peared in the time of the Commonwealth, for in 1642 
Prince Rupert, after holding it in the interest of the 
Royalists, found himself unable to prevent its falling 
into the hands of the Roundheads, and therefore de- 
stroyed it.* Nothing remains save the indications of a 
moat, inclosing about two acres of ground, and, within the 
inclosure, two depressions, each about thirty feet wide by 
about fifty feet long and about four feet deep ; and these 
depressions undoubtedly indicate the position of build- 
ings.^ In a fence near by are two carved stones that 
seem to have been part of the Manor House ; and in St 

^ Jeayes' Catalogue of Charters and Muniments of the Lyttel- 
ton Family (hereafter cited as Jeayes), introduction, p. viii. The 
family documents preserved from early dates are so numerous 
that apparently the destruction of the Manor House was pre- 
ceded by a systematic removal of documents to some place of 
safety. 

' The house may not have been as large in Littleton's time as 
when it was destroyed ; for one of his heirs is said to have spent 
a large sum in rebuilding it. Collins* Peerage, Brydges* ed., vol. 
VIII., p. 883. 

There are manuscript pedigrees of the Lyttelton family in the 
possession of Viscount Cobham at Hagley Hall, in the British 
Museum (Harleian MS. No. 5814). and at the Harvard Law School 
(inserted in a copy of Co. Lit., second ed.). No one of these is 
ancient, or more authoritative than the accounts in the eighth 
volume of Collins' Peerage, Brydges' ed. (hereafter cited simply 
as Collins) , which is largely based upon family papers and is 
usually correct. 



INTRODUCTION. xv 

Leonard's Church, about six hundred feet to the east, 
-are other stones that probably came from the same ruin.* 
This is all that remains of the old home, unless, indeed, 
one should take into account a neighboring fish pond, 
said to date back to Littleton's time, and called West- 
minster Pond, the name commemorating, according to 
tradition, the supposed fact that the pond is just as 
large as Westminster Hall, and also, possibly, commemo- 
rating the rather more certain fact that in Westminster 
Hall Littleton sat as Judge of the Common Pleas. 

There are several old landmarks in the region. St, 
Leonard's, already spoken of, the present parish 
church of Frankley, was in Littleton's time a chapel,* 
probably intended for the servants and tenants of the 
manor ; and, notwithstanding extensive restorations, 
parts of the western wall appear to belong to that early 
day. Some three miles to the northwest stands the 
church of Halesowen, which, when Littleton lived, was 
the parish containing Frankley Manor ;' and this latter 
church also has parts that date back to the same time. 
These two churches were closely connected with the life 
of Littleton, and once contained memorial windows pre- 
senting jportraits of him. Not far from the Halesowen 

^ Stanton's Rambles and Researches among Worcestershire 
Cfiurches, vol. II., p. 101. 

« Stanton's Rambles and Researches among Worcestershire 
Churches, vol. II., p. 97. 

'Jeayes, introduction, p. iv.; Stanton's Rambles and Re- 
searches among Worcestershire Churches, vol. II., pp. 97-98. 



xvi INTRODUCTION. 

church are the ruins of Halesowen Abbey,^ a great re- 
ligious house in Littleton's day. That Littleton was 
well acquainted with these two churches and with this 
abbey is shown clearly enough by bequests to each of 
them in his will. Still other neighboring churches are 
of the same date, and so are some castles that are some- 
what farther away. About eight miles to the northwest 
of Frankley are the ruins of Dudley Castle, and about 
twenty miles to the southeast are Warwick Castle and 
the shell of Kenilworth. Besides these churches and 
castles, there is nothing near at hand to remind one of 
Littleton's time except the land itself; and in Frank- 
ley, in spite of the disappearance of the greater part 
of the forest with which the manor is said to have been 
almost covered five centuries ago, and in spite of the im- 
proved roads and fences, the land certainly does remind 
one of those mediaeval days; for there is not in the 
whole three or four square miles of Frankley a village, 
or even an inn. Not far to the north may be seen the 
chimneys of Birmingham, and toward the west may be 
seen the smoke by day and the fire by night which mark 
the region famous as the " Black Country " ; but Frank- 
ley itself is still rural, a mere neighborhood of farms. 

^ An engraving depicting the ruins of the abbey is given in 
Nash's Collections for the History of Worcestershire, vol. I., p. 
490. The destruction of the abbey is described in Aniphtett*s 
Short History of Clent, pp. 70-71, 164, where it is said that the 
ruins of the abbey furnished some of the stone for Hagley Hall» 
the present home of Littleton's heir. 



INTRODUCTION. xvii 

In fact, there are few spots more appropriate to be as- 
sociated with the memory of an author who has done 
much to bring down to the present time a picture of the 
land law of the middle ages.^ 

Frankley Manor, even at this day in the hands of 
Littleton's heir,^ was part of the estate of the author's 
grandfather, also named Thomas Littleton.^ This 
grandfather had but one child, a daughter. When this 
daiighter, Elizabeth, married Thomas Littleton's father, 
Thomas Westcote,^ it was agreed that, as the estate 
which would ultimately come to the heiress was large, 
and as it was desirable to keep alive the Littleton name, 
the first-born son should be called Littleton. The first- 
bom son was the author; and thus it happened that, 

* It is not improbable that the rural flavor of Frankley will 
soon largely disappear. Vast reservoirs for supplying Birming- 
ham with water are in process of construction a quarter of a 
mile east of the parish church, on part of the old manor. The 
reservoirs are to be supplied from the mountains of Wales, some 
seventy miles distant, through a conduit that runs beneath the 
site of the old Manor House. All work has been so conducted as 
not to change the surface of the ground near the old home ; but 
Frankley has clearly been brought closer to Birmingham. 

* In 1601 the Crown went into possession because of the at- 
tainder of John Lyttelton, implicated in the plot of Lord Essex. 
The estate was restored in about a year and a half. With the ex- 
ception of this slight break, the Manor of Frankley has belonged 
to the family continuously. Jeayes, introduction, pp. vii.-viii. 

* He died in 1422. Jeayes, introduction, p. xv. 

* He died in 1450, according to the pedigree in Jeayes, intro- 
duction, p. XV.; but this is inharmonious with his wife's appear- 
ing in 1417 as the wife of Thomas Heuster. Vide infra, p. xviiL, 
n. 2. 



xviii INTRODUCTION. 

although his three brothers and four sisters were named 
Westcote, the name under which he and his book are 
fitill famous is Littleton.^ 

Although tradition is clear to the effect that Little- 
ton was born at Frankley Manor, neither record nor tra- 
dition furnishes the exact date. All that can be asserted 
with certainty is that Littleton was born in the early 
years of the fifteenth century.^ 

The place and the manner of Littleton's early edu- 
cation are unknown, but it is possible to ascertain some 
of the influences that from the first surrounded* him. 

» Visitation of Worcestershire, 1569 (Harleian Society's Publi- 
cations, vol. 27), p. 92. 

There is an ancient tale that Littleton's mother often begged 
his brothers and sisters to change their name likewise, and, upon 
their refusal, asked them ** whether they thought better of them- 
selves than their elder brother,** and that they answered that 
" he had a fair estate to alter his name, and if they might share 
with him they would do the like.'* Collins, p. 820. 

The name has been spelled in many ways, e.g.: Littelton, 
Littilton, Littulton, Littylton, Lutilton, Luttelton, Luttleton, 
Lyttelton, Lyttilton, Lyttylton. Jo&y^s, panHm. The author's 
heir spells the name Lyttelton. Some other descendants spell it 
Littleton, as it has usually been spelled by lawyers. 

« The date most usually given is 1422. This is based upon the 
statements in the MS. pedigree at Hagley Hall and in Collins, 
p. 323, tliat Littleton died in 1481 aged about sixty. Birth in 
1422 is inharmonious with the known dates of Littleton*s promi- 
nence in the profession. It is inconsistent also with the fact 
that Littleton's mother, having married a second time, appears 
as early as 1417 to be the wife of Thomas Heuster. Jeayes, Nos. 
274 and 276. In 1440 a grant of land was made to ** Thomas Lit- 
tulton, son of Thomas Heuster." Jeayes, No. 266. The date 
(1402) in the Dictionary of National Biography, vol. XXXIII., 



INTRODUCTION. 



ZIX- 



His grandfather was a courtier* for many years, includ- 
ing the last days of a more famous courtier — Chaucer. 
Littleton's father also was a courtier,^ and a contempo- 
rary of King Henry the Fifth, to-day better known as 
Shakespeare's Prince Hal. Thus, whatever Littleton 
may have learned from schoolmasters and from books, 
he certainly had the kind of education which comes from 
associating with people who have been about the world. 
Surely there must have come from London to Frank- 
ley Manor some part of the modem atmosphere that 
makes Chaucer seem to be almost of our own time ; and 
although the Tenures must be conceded to be one of the 
gravest of books, it must have been strange indeed if 
the lively poems of Chaucer and the equally lively 
doings of Prince Hal did not reach the ears of the young 
Littleton, even in his remote birthplace. Further, it 
must have been stranger still if there did not come to 

p. 873, is a misprint for 1422. The earliest date practicable, if 
one follows the tradition that Littleton was born in Frankley 
Manor House, appears to be 1407, when Littleton's grandfather 
seems to have recovered the manor by writ of right on the dy- 
ing out of the Tatlingtons, a remote branch of the family. 
Jeayes, introduction, p. vii. 

1 " Esquire of the body to three successive kings, viz. Richard 
II., Henry IV., and Henry V." Collins, pp. 318-819. In Calen- 
dar of Patent Rolls, 1377-1881, p. 442, under date of Feb. 27, 1880, 
is found : " Pardon, at the supplication of the King's esquire, 
Thomas de Littleton, to William Wecheford for the death of 
John Ruseleye, killed on Sunday before the feast of St. Gregory, 
2 Richard II." 

* ** The King's servant in court." Co. Lit., preface. 



XX INTRODUCTION. 

that quiet spot tales of Robin Hood, whose exploits had 
had their reputed scene some fifty miles to the northeast, 
and tales of King Arthur, whose legendary home had 
been fifty miles in exactly the opposite direction; for 
the adventures of Eobin Hood and of the Knights of 
the Eound Table, though not yet reduced to writing, 
were already popular literature. Again, Littleton's at- 
tention must early have been directed to stirring events 
in history; for in almost every direction there was 
within a day's ride some historic spot: Worcester Ca- 
thedral, with the tomb of King John; Evesham, in 
the time of Edward the First the place of the defeat and 
burial of Simon de Montfort ; Coventry, in the time of 
Richard the Second the place appointed for the combat 
between Henry Bolingbroke and the Duke of Norfolk; 
Shrewsbury, in the time of Henry the Fourth the center 
of the exploits of Owen Glendower and Harry Hotspur. 
Finally, the representatives of systematic learning were 
near at hand in the persons of the numerous ecclesiastics 
in the two great religious houses of the neighborhood — 
Halesowen Abbey and the monastic establishment ad- 
jacent to Worcester Cathedral. From all this it is ob- 
vious that Frankley, though remote from London, was 
in the midst of much that was capable of broadening the 
mind. 

Coke says that Littleton attended " one of the univer- 
sities " ;* but there is no verification of this. In those 
« Co. Lit. 23o, b. 



INTRODUCTION, xxi 

days the state of learning in the universities, was de- 
plorable,* the Latin of Oxford being then quite as no- 
torious as the French of " Stratford atte Bow " that 
was ridiculed by Chaucer; and even if Littleton at- 
tended a university the more important part of his edu- 
cation must have been obtained elsewhere. The inns of 
court and of chancery were the favorite places where 
learning and social graces were then sought even by per- 
sons who did not intend to become lawyers. Students 
commonly began with an inn of chancery, and passed 
thereafter to an inn of court. It is not known whether 
Littleton was a member of an inn of chancery; but 
there is good reason for asserting that his inn of court 
was the Inner Temple.* 

Although there is no account of Littleton's career as a 
student of law, the deficiency is well supplied by a 
familiar passage in the treatise of his contemporary, 
Sir John Fortescue, De Laudihus Angliae. After mak- 
ing allowance for the enthusiasm that seems to color this 
celebrated passage — an enthusiasm natural enough, for 
Fortescue wrote it when his taking the field as a soldier 
in the Wars of the Koses had driven him from the 
Chief Justiceship of the King's Bench into exile in 

1 Hallam's Literature of Europe, vol. I., part I., chap. II., sect. 
26, and chap. III., sect. 70. 

2 This was the inn of court to which belonged Richard Little- 
ton, for whom this treatise was written. Calendar of Inner 
Temple Records, vol. I.» p. 1. To the present day, this has been 
the inn of most of the lawyers descended from tlie author. 



xxii INTRODUCTION. 

France, and when his special purpose in writing was to ' 
inspire the Lancastrian heir apparent with an admira- 
tion for English law, — it is nevertheless clear that edu- 
cation in the inns of court consisted of systematic work, 
including attendance at lectures and at court and the dis- 
cussion of actual and hypothetical cases ; and, still bet- 
ter, it is also clear that students and lawyers lived to- 
gether, argued together, and together breathed an at- 
mosphere charged with companionship, emulation, and 
law.* As eight years constituted, apparently, the usual 
period of a student's residence, and as, despite the non- 
existence of many topics since developed, the law wa& 
already endowed with two of its most intricate subjects^ 
real property and special pleading — the latter already 
developed to an extent that to-day meets disapproval,^ — 
it is obvious that the education received in the inns may 
have been quite as thorough as that given in any modern 
law school.* 

It is not known in what year or at what age Littleton 
completed this long preparation for practice, nor with 
what rapidity he achieved professional success. More- 
over, the earliest events subsequent to his admission to 

1 Fortescue De Laudibtu Angliae, chapters xlviii. and xlix. 

* Stephen on Pleading, appendix, 2d. ed., note 88, or 5th ed.^ 
note 28. 

» The education of lawyers in the next two centuries is de- 
scribed by reports of Thomas Denton, Nicholas Bacon, and 
Robert Gary, in Waterhous, Fortescutus Illustratua^ pp. 539, 543 ; 
and 8 Co. Rep., preface, pp. xxxv.-xxxvii.; and Dugdale's Ori- 
ginea Juridieialea, second ed., pp. 159-160. 



INTRODUCTION. xxiii 

the bar are of doubtful chronological order and most of 
them of uncertain date. Apparently, between 1440 and 
1450 several important events happened; for it seems, 
that between these dates he was married, his professional 
services were requested against the now famous family 
of the Pastons, and he was escheator of Worcestershire, 
undersheriff of the same county, and recorder of Cov- 
entry. 

Littleton's marriage was in or before 1444, because 
in that year his wife is named in a license whereby the 
Bishop of Worcester authorized the celebration of low 
mass in Frankley Manor House,^ in the oratory which 
is shown by Littleton's will to have been dedicated to the 
Trinity. His wife was Joan,^ widow of Sir Philip 
Chetwynd, of Ingestrie, Staffordshire, and one of the 
daughters and co-heirs of Sir William Burley, of Broms- 

1 This license was dated Jan. 80, 1443-4. On Aug. 27, 1427, & 
similar license had been granted to Maud, widow of the Judge's- 
grandfather. Stanton's Rambles and Researches among Wor- 
cestershire Churches, vol. II., p. 98. 

3 Collins, p. 822. She died March 22, 1505, according to Collins, 
p. 329. The MS. pedigree at Hagley Hall gives the same date, 
. but also gives the inquisition post mortem as Nov. 26, 20 H. VII. 
(1504). The year of death is given as 1505 in Nash's Collections 
for the History of Worcestershire, vol. I., opposite p. 493, and in 
Jeayes, introduction, p. xv. An inspection of the authorities 
shows that those giving 1505 are not independent, but probably 
have a common source. According to Collins, p. 330, the inquisi- 
tion post mortem found that the heir was Sir William Lyttelton, 
aged about sixty. 

• In Notes and Queries, sixth series, vol. VII., pp. 47-48, 812, 
are comments pointing out difficulties as to the genealogy of 
Littleton's wife. 



Xxiv. INTRODUCTION. 

croft Castle, Shropshire, Speaker of the House of Com- 
mons in 1436 and again in 1444. 

It was between 1445 and 1449 that a letter was ad- 
dressed to the Archbishop of Canterbury, Chancellor of 
England, from John Hauteyn, chaplain, saying that the 
writer had divers suits and actions to. be su^d against 
the widow of Sir William Paston, ajtid could get no 
counsel because Sir William Paston had been a Justice 
of the Common Pleas and his son and heir, John Paston, 
was also " a man of court," and praying " that it please 
your good Lordship to assign and most strictly to com- 
mand John Heydon, Thomas Lyttylton, and John 01s- 
ton, to be of counsel with your said beseecher ;" and it 
is added that " your said beseecher shall content them 
well for their labour.''* This is of interest as indicat- 
ing that at this date Littleton was a member of the bar 
and was already considered a desirable adviser.* 

Littleton's service as escheator of Worcestershire be- 

^ Paston LetterR, Gairdner's edition, vol. I., p. 60. Littleton's 
grandson married the granddaughter of this Sir William Paston. 
Visitation of Worcestershire, 1569 (Harleian Society's Publica- 
tions, vol. 27), pp. 93-94. The John Paston named in the letter 
was of the Inner Temple. Calendar of Inner Temple Records, 
vol. I., introduction, pp. xv.-xvi. Littleton is also mentioned in 
the Paston Letters, Gairdner's ed., vol. I., pp. 384, 892, 407; vol. 
II., pp. 144-145 ; vol. III., p. 428. 

* A clearer indication that Littelton was successful in practice 
is found in his receiving from Sir William Trussel, in 80 H. VI. 
(1451-2), a grant of the manor of Sheriff Hales, Staffordshire, 
for life, *^pro bono et notabili consilio." Collins, p. 228. This Sir 
William Tra«isel was apparently the brother-in-law of Littleton's 
wife. Notes and Queries, sixth series, vol. VII., pp. 47-48, 312. 



INTKODUOnON. XXV 

longs apparently to this same part of his life.^ This 
office had for its chief duties the ascertaining and en- 
forcing, especially through inquisitions post mortem 
-with a jury, of the Crown's right to wardship, mar- 
riage, relief, escheat, and other feudal incidents; and 
it is clear that service of this sort would give exactly the 
varied and practical knowledge of land law which would 
be of inestimable value to the author of a treatise on 
tenures. 

Littleton's service as undersheriff of Worcestershire 
began in 1447 and lasted for one year.* The office of 
high sheriif appears to have been an hereditary right of 
the Earl of Warwick; but service as undersheriff did 
not bring Littleton, as has sometimes been supposed, 
into association with the celebrated Richard Neville, 
better known as Warwick the King-maker. It was not 
until 1449 that Richard Neville, by reason of his wife's 
then inheriting the Beauchamp estates, was created Earl 
of Warwick. From this last date it may well be true 
that Littleton, whose career had much to do with Wor- 
cestershire and Warwickshire, was frequently brought 
into contact with the Earl of Warwick, who became the 
chief landowner and soldier and statesman of that re- 
gion, and indeed of all England ; but it is not now possi- 

1 CoUins, p. 321. There was a property qualification. St. 32 
E. III. c. 5 (1368); St. 12 E. IV. o. 9 (1472), 

* Public Record Oflfice List and Indexes, vol, IX., p. 157; St. 
23 H. VI., c, 8 (1444). 



xxvi INTRODUCTION. 

ble to state the connection between Littleton and the 
earl, and this is not strange, as the time of the Wars 
of the Roses is a peculiarly obscure part of English his- 
tory, and historians have only recently begun to give 
adequate attention to the career of Warwick himself.^ 

It was at some time within this decade that Littleton 
became recorder of Coventry ; and thus it happens that 
the decade closes with a glimpse of Littleton in the midst 
of a picturesque scene. The office was within the gift, 
of the corporation, which held the earliest municipal 
charter that is known to have been granted.^ Although 
Coventry is in Warwickshire, there is nothing to con- 
nect Littleton's appointment with the Earl of Warwick. 
The office was of great dignity, for a few years later 
Henry the Seventh described it as " one of the most 
honor and substance in this our realm."^ The re- 
corder's duties were largely judicial. The room in 
which Littleton as recorder most probably held court is 
still to be seen. It is the chief room in St. Mary's Hall. 
As this is a room that must also have been well known 
to a later celebrated recorder of Coventry — Sir Ed- 
ward Coke,^ — this ancient building has for lawyers an 
interest inferior to no other building save Westminster 

* Oman's Warwick the Kingmaker, p. 1. 

« Gross' Gild Merchant, vol. I., p. 98, n. 8. 

* Poole s History and Antiquities of Coventry, pp. 868-870. 

* Coke was recorder of Coventry from 1613 until his death. 
Johnson's Life of Coke, vol. II., p. 858 ; Poole's History and An* 
tiquities of Coventry, p. 87. 



INTRODUCTION. xxvii 

Hall, the Temple Churcli, and the Guildhall of London. 
The ordinary service of a recorder, however, is not pic- 
turesque; and the picturesque scene in which Littleton 
as recorder played a part was incident to a non- judicial 
^vent. In 1450 Coventry was visited hy Henry the 
Sixth. The ceremonies are carefully described in a 
minute that may have been composed by Littleton him- 
self. The account of the King's receiving at the old 
Priory the Mayor and the other representatives of Cov- 
'entry contains this passage as to the spokesman: 
^* Thomas Lytelton, then recordur, seyde unto the 
Kynge suche wordes as was to his thynkyng most ple- 
saunt; oure soveren lorde seyeng agayne the wordes: 
* Sir, I thank you of youre goode rule and demene, and 
in spesiall four youre goode rule the last yere past, for 
the best ruled pepuU thenne within my reame; and 
also I thank you for the p'sent that ye nowe gave to us.' 
The which p'sent was a tonne of wyne and xx'tie grete 
fat oxen."* 

Possibly it is to some year in the same decade ending 
in 1450 that one ought to assign Littleton's service 

1 Gentleman's Magazine, (1792) vol. 62, part II. p. 985. 

Coventry was a favorite retreat of Henry the Sixth and his 
wife, and was called ' * the Queen's secret arbor. " Poole's History 
and Antiquities of Coventry, p. 87. 

To this time of Littleton's life pertains an entry to the effect 
that in 1455 he deposited with the Exchequer a record of jail 
delivery taken before himself and others at Coventry in 29 H. 
VI. (1450-^1). Antient Kalendars of the Treasury of the Ex- 
chequer, vol. II., p. 229. 



xxviii INTRODUCTION. 

as reader to the Inner Temple. This office was a great 
distinction, and it brought with it a serious pecuniary 
burden in the shape of a requirement that the reader 
should give a great banquet; but this burden was not 
as heavy in Littleton's time as it became later. Lit- 
tleton is the earliest known reader to the Inner Temple, 
and this is probably the reason why Littleton's arms are 
the earliest dieplayed in the window of the hall of the 
inn.^ This part of Littleton's career has an interesting 
bearing upon the Tenures. In those days the reader de- 
livered his course of lectures to an extremely critical 
audience, composed of students, barristers, Serjeants, 
and judges, and it was the audience's privilege and duty 
to question the reader and to dispute his statements and 
conclusions.^ Appointment to such a trying office was 
in itself a proof of good repute for clearness and ac- 
curacy; and as those virtues would obviously be in- 
creased by the performance of the reader's task, the 
qualities that have contributed most largely to the fame 

1 Tombs, windows, engravings, and other memorials to Little- 
t)n and his descendants may be identified by the family arms, 
which in books on heraldry are described thus : argent, a chev- 
ron between three escallops sable. 

^ Repoiis by Thomas Denton, Nicholas Bacon, and Robert 
C:vry, in Waterhous' Fortescutus Ultistratus. pp. 539. 543-645; 
Stow's Annals, 1631 ed., p. 1074 ; Stow s Survey of London, 
Tlioms' ed., pp. 29-30; 3 Co. Rep., preface, p. xxxv.; Co. Lit. 
2^^0 ; Dugdale's Origines Juridiciales, second ed., pp. 150-161 ; 
Herbert's Inns of Court, pp. 172-181 ; Pearce's Inns of Court, 
chap. IV.; Calendar of Inner Temple Records, vol. I., introduc- 
tion, pp. xxxii.-xxxiii. 



INTRODUCTION. xxix 

of the Tenures may have close connection with this short 
term of service as reader. At any rate, there is at least 
one certain connection betv^^een this reading and the 
Tenures; for Littleton selected as the subject of the 
reading the statute of Westminster II., De donis condi- 
(ionalibus,^ and by thus electing to discuss estates tail he 
indicated his taste for land law and at the same time 
gathered material that must have been useful in com- 
posing the first few chapters of his treatise. 

Service as reader usually led to appointment to be a 
Serjeant at law, and this promotion came to Littleton in 
1453.^ There are interesting accounts of the creation 
of Serjeants,^ and any one may easily find realistic de- 
tails with which to surround an imaginary, but ap- 
proximately accurate, picture of Littleton going through 
the ceremonies of taking upon himself " the state and 
degree of a serjeant at law," as the phrase ran, and dis- 
tributing gold rings and liveries, and participating with 
the other new Serjeants in giving a feast that should last 
a week and rival in splendor the feast attendant upon a 

1 The reading is preserved in the British Museum, Harleian 
MS. 1691. 

* Calendarium Rotulorum Patentium, 297 : Dugdale\s Origines 
Juridicialea, second ed., Chronica Series, p. 85 ; Foss' Judges of 
England, vol. IV., p. 245. According to Diigdale the appoint- 
ment was on Feb. 1, and the ceremony on July 2, and the Ser- 
jeants created at this time were Hmdstone, Laken. Wangford, 
BoeflP, Littleton, Choke, Needham, and Billing. 

* Fortescue De Laudibus Angliae, chap. L., ; Dugdale*s Ori- 
gines Juridiciales, second ed., pp. 111-188. 



XXX INTRODUCTION. 

coronation. It is more important, however, to notice 
that entrance upon the position of serjeant made Little- 
ton one of the small group of lawyers having a monop- 
oly of practice in the court which had the most to do 
with questions of land law — the Common Pleas, — and 
then to ascertain, if possible, how much Littleton's busi- 
ness was aflFected by accepting this expensive promotion. 
Unfortunately, the Year Books of that time are scanty 
and confused; but, as nearly as can be discovered, it 
seems that in the year before Littleton became a ser- 
jeant he was concerned in five reported cases, all of 
them in the King's Bench, where, by the way, his great 
contemporary, Fortescue, was then Chief Justice, and 
that in the year after promotion he was counsel in 
twenty cases, all of them in the Common Pleas, besides 
delivering alone or with other Serjeants six non-judi- 
cial opinions.* After allowances are made for the fact 
that the Year Books are principally devoted to cases in 
the Common Pleas, it seems probable that, partly be- 
cause of the monopoly enjoyed in that court by the Ser- 
jeants, and partly because of the mere prestige of pro- 
motion, Littleton's preferment was decidedly to his pe- 
cuniary advantage. To a prospective writer upon law, 
however, the chief benefits of the advancement were that 
it brought him into closer association with the most 

1 This computation is based upon the belief that Y. B. 82 H. 
VI., 1, Trin., pi. 3 and 4, should be assigned to 31 H. VI., and 
that Y. B. 33 H. VI. 1-12, Hil.. should be assigned to 32 H. VI. 



INTRODUCTION. xxxi 

learned members of his profession and at the same time 
encouraged brief and accurate statements of opinion; 
for Serjeants, a sort of perpetual amici curiae, aided 
the judges of the Common Pleas in cases in which they 
themselves were not counsel.* 

In 1455, on May 13, just nine days before the first 
battle of St. Albans, the opening contest of the Wars 
of the Roses, Littleton was appointed one of the King's 
Serjeants,* This promotion brought no increase in 
court business, as far as can be ascertained from the 
Year Books, but it brought a substantial advance in 
dignity and responsibility. The King's Serjeants were 
actual advisers of the Crown,^ and stood at the head 
of the profession, in those days outranking the Attorney 
General.^ Besides, like most King's Serjeants, Little- 
ton was also commissioned as a justice of assize."* 

At this point one inevitably encounters the question 

1 According to Co. Lit., preface, Littleton while Serjeant at 
law was made Steward of the Court of the Marshalsea. 

« Dugdale's Origines Juridieiales, second ed., Chronica Series, 
p. 67. 

On the next day, along with the Earl of Warwick, Sir John 
Fastolf, and many others, he was appointed upon a commission 
to raise money for the defense of Calais. In this commission he 
was a representative from Worcestershire. Proceedings of the 
Privy Council (ed. Nicholas), vol. VI,. pp. 284, 240. 

A year later he was placed on a commission of array for War- 
wickshire. Collins, p. 321. 

• Foi-tescue's Governance of England, Plummer's ed., p. 45, n, 8. 

* PuUing's Order of the Coif, pp. 41-43. 

^ In this capacity he rode the northern circuit. Co. Lit., 
preface. 



xxxii INTRODUCTION. 

whether the Wars of the Eoses had any effect upon the 
career of Littleton. The answer is that no effect is dis- 
cernible.* By reason of the Wars of the Roses, For- 
tescue lost the Chief Justiceship of the King's Bench ; 
but this was because Fortescue became a soldier. For- 
tescue, as his writings show, was a statesman rather than 
a lawyer. Littleton's mind, on the other hand, was dis- 
tinctly lawyerlike, and his career is only one of many 
that show the ease with which a person standing aloof 
from faction could pursue the legal profession success- 
fully even in the midst of those most troubled times. 
Yet law and politics were not wholly separable ; and at 
least twice during the Wars of the Roses there were 
emergencies of decided interest to lawyers. One of 
these occurred when Richard, Duke of York, attempted 
to turn the title of Henry the Sixth into a question of 
law; and the other occurred when the triumph of the 
Yorkists, combined with the theory that the Lancastrians 
had been usurpers, created the doubt whether judicial 
and other official acts performed under authority de- 
rived from usurpers should be deemed valid or void. 

The first of these emergencies arose in 1460, when 
Richard, Duke of York, presented in open Parliament 

1 In 1454, when Richard Duke of York became Protector, and 
again in 1461, when Edward the Fourth seized the throne, Little- 
ton sued out a general pardon. Collins, p. 821. This does not 
indicate that Littleton had committed any offense, but probably 
that after the cautious custom of his time he protected himself 
against being accused of offenses reaUy not committed. 



INTRODUCTION. xxxiii 

his claim to the throne in the form of a contention that 
the right to the crown was like the title to real estate and 
that the right to the crown, if thus treated, belonged to 
him and not to Henry the Sixth. The essential prob- 
lem, in truth, was whether this mode of looking at king- 
ship was in accordance with the constitution ; and this, 
according to the English system, was a question not of 
law but of history and statesmanship. Yet the Lords 
spiritual and temporal, as the contemporaneous record 
says, after consulting the King, " sent for the Kyngs 
Justices into the Parlement Chambre, to have their avis 
and Counsell in this behalf, and there delyvered to 
theym the writyng of the cleyme of the seid Due, and in 
the Kyngs name gave theym straitely in commaunde- 
ment, sadly to take avisament therin, and to serche 
and fynde all such objections as myght be leyde ayenst 
the same, in fortefying of the Kynges right. Wher- 
unto the same Justices . . . seiden, that they were 
the Kyngs Justices, and have to dctermyne such maters 
as com before theym in the lawe, betwene partie and 
partie, and in such maters as been betwene partie and 
partie they may not be of Counseill ; and sith this mater 
was betwene the Kyng and the seid Due of York as two 
parties, and also it hath not be accustumcd to calle the 
Justices to Counseill in such maters, and in especiall 
the mater was so high, and touched the Kyngs high es- 
tate and regalie, which is above the lawe and passed ther 
iernying, wherfore they durst not enter into eny com- 
3 



xxxiv INTRODUCTION. 

munication therof, for it perteyned to the Lordes of 
the Kyngs blode, and th' apparage of this his lond, to 
have communication and medle in such maters." This 
terminated the incident, so far as the judges were con- 
cerned; but from Littleton's point of view the interest 
of the transaction now increased, for then, it seems, there 
were only two King's Serjeants,^ of whom Littleton was 
one, and the record continues thus : "And then the seid 
Lordes consideryng the answere of the said Juges, and 
<entendyng to have the advice and good counseill of all 
the Kynges Counseillors, sent for all the Kyngs Ser- 
:geauntes and Attourney, and gave theym straight cora- 
maundement in the Kyngs name, that they sadly and 
;avisely shuld serche and seke all such thinges as myght 
be best and strengest to be alegged for the Kynges availe, 
in objection and defetyng of the seid title and clayme 
of the seid Due. Whereunto the seid Sergeaunts and 
Attourney . . . answered and seiden, that the seid 
mater was put unto the Kynges Justices; and howe 
. . . the same Justices seiden and declered to the 
fieid Lordes, that the seid mater was soo high and of soo 
grete wight, that it passed their lernyng, and also they 
durst not entre eny communication in that matier, to 
yeve eny avyce or Counseill therin ; and sith that the 
seid matier was soo high that it passed the lernyng 
of the Justices, it must nedes excede their lernyng, and 
also they durst not entre eny communication in thac 
* Foss* Judges of England, vol. IV., p. 245. 



INTRODUCTION. XXXV 

matier. ... To whom it was answered . . . 
that they myght not so be excused, for they were the 
Kynges particuler Counseillers, and therfore they had 
their fees and wages. And as to that the seid Ser- 
geaiints and Attourney seiden, that they were the 
Kynges Counseillers in the lawe, in such things as were 
under his auctorite or by commission, but this mater 
was above his anctorite, wherein they myght not medle. 
. . . And it was answered agayn, that the Lordes 
would not hold theym excused, but let the Kynges High- 
nes have knowleche what they seid." This closed the 
connection of the King's Serjeants with the transaction ; 
and the Lords proceeded to make such objections to the 
Duke's claim as they themselves saw fit, and to listen 
to his answers, and then to make the famous and un- 
successful compromise to the eflFect that Henry the Sixth 
should have the crown for life, remainder over to Rich- 
ard Duke of York in fee.* 

The other emergency arose in a few months; for in 
1461 the House of York gained the throne. Edward 
the Fourth reappointed to the office of King's Serjeants 
both Littleton and his former associate, Billing, who 
later was Chief Justice of the King's Bench.^ To 
these two men, either in their official capacity as the 
legal advisers of the Crown or in their personal capac- 
ity as the heads of the legal profession, probably must 

1 RottUi Parliamentorum, vol. V., pp. 875-378. 
*Lord CampbelFs unfavorable account of Billing is wholly 
rejected in Foss' Judges of England, vol. IV., pp. 410-419. 



xxxvi INTRODUCTION. 

be given — though to be sure there is no direct evidence — 
credit for the framing of the first statute of the York- 
ists/ — the important act to the effect that all judicial 
proceedings in the reigns of the Lancastrian kings, in- 
cluding fines and recoveries, should have full force, and 
that the patents of nobility made in those reigns should 
be confirmed, and that all privileges granted to cities and 
towns should have full strength, and, in short, that the 
Lancastrian kings, although from the Yorkist point 
of view mere usurpers, would be recognized as having 
been kings de facto, and that property rights and the 
like accruing in their reigns would be fully respected. 
It was in the same year, 1461, that a purely legal 
question came before Littleton, when he was appointed 
the first-named member of a commission, composed of 
"Thomas Litilton, Thomas Billyng, William Lacon, 
Sergcaunts of Lawe,and Henry Sotill,the Kyngs Attor- 
ney,'' whose business was to report upon a controversy 
between the Bishop of Winchester and many tenants of 
one of the bishop's manors as to the services due from 
the tenants, and more especially as to " all manere works 
and Custumes, claymed of theym to be due by reason 
of their Tenures to the scid Reverend Fadre, all tymes 
of the yere; and of all manere Custumes of certeyn 
Ilennes and Come, called by the name of Chirchetts; 
and of a sumrae of money claymed at two lawdayes in 

1 St. 1 E. IV. c. 1 (1461) ; Rotuli Parliamentorum, vol. V., pp. 
463-475, 489-493. 



INTRODUCTION. XXXvii 

the yere, called Tithyng peny, otherwise Tottyng peny ; 
also of a summe of money called Custume pannage for 
Swyne beyng within the Lordship of Estmeone," and 
finally as to the contention of the tenants that they were 
freeholders and not copyholders.^ Thus reappears 
Littleton's connection with land law, and particularly 
with tenures. 

While he was King's Serjeant, Littleton, like other 
King's Serjeants, had much experience of a judicial 
nature. He was almost invariably named in commis- 
sions of the peace^ for Worcestershire, Warwickshire, 
Shropshire, Yorkshire, Westmoreland, Cumberland, and 
Northumberland. He was a judge in the county pala- 
tine of Lancaster also.^ In 1465 be was on a special 
commission of oyer and terminer with the Earl of War- 
wick and others ;* and in February, 1466, he was named 
in the regular commission of assize for York, Northum- 
berland, Cumberland, and Westmoreland.*^. These last 
appointments indicated that he was in the line of promo- 
tion ; and indeed this had been indicated earlier, for a 
letter written in January, 1464, says : " The two Chefe 
Juges and Maister Lyttleton am awaytyng up on the 
Kyng, for the Kyng is purposed in to Gloucestershire, 

etc."« 
^ Rotuli Parliamentorum, vol. V., p. 476. 
« Calendar of Patent Rolls, 1461-1467, pp. 561, 569-570, 574-677. 

• Paston Letters, Gairdner's ed., vol. III., p. 428. 

• Calendar of Patent Rolls, 1461-1467, pp. 489-491. 
6 Calendar of Patent Rolls, 1461-1467. p. 477. 

• Paston Letters, Gairdner's ed., vol. II., pp. 144-145. 



XXXviii INTRODUCTION. 

In 1466, on April 27, occurred the most important 
event in Littleton's professional career, for Edward the 
Fourth then made him a Judge of the Common Pleas.^ 
Fortescue's account of the making of a judge, familiar 
though it may be, contains passages that can hardly be 
quoted too often. Fortescue says : " There are usually 
in the Court of Conmion Pleas five judges, six at the 
most; in the Court of King's Bench four, and some- 
times five ; when any one of them dies, resigns or is su- 
perseded, the King, with the advice of his Council 
makes choice of one of the Serjeants at law, whom he con- 
stitutes a judge by his letters patents, in the room of 
the judge so deceased, resigning, or superseded ; which 
done, the Lord High Chancellor of England shall come 
into the court where such vacancy is; bringing in his 
hand the said letters patents, sitting on the bench, to- 
gether with the judges of the court, he introduces the 
Serjeant who is so appointed to be a judge ; to whom, in 
open court, he shall notify the King's pleasure concern- 
ing his succession to the vacant office and shall cause to 
be read in public the said letters patents: after which, 
the Master of the Rolls shall read to him the oath of 
office; when he is duly sworn into his said office, the 

1 " By King by word of mouth." Calendar of Patent Rolls, 
1461-1467, p. 515. His compensation was fixed at one hundred 
and ten marks annually, with an allowance for a furred robe at 
Christmas and for a linen robe at Pentecost. lb. p. 516 ; Rymer's 
Foedera^ vol. XL, p. 566. These were the usual emoluments of a 
judge of the King's Bench or of the Common Pleas. Dugdale's 
Origines JuridicicUeSf second ed., chap. XL. 



INTRODUCTION. xxxix 

Chancellor shall give into his hands the King's lettera 
patents, and the Lord Chief Justice of the court shall 
assign him his place where he is to sit, and makes him 
sit down in it. . . . The judge, amongst other parts 
of his oath, is to swear, that he shall do equal law and 
execution of right to all the King's subjects, rich and 
poor, without having regard to any person. Neither 
shall he delay any person of common right, for the 
letters of the King, or of any other person, nor for any 
other cause, though the King by his express directions, 
or personal commands, should endeavor to influence and 
persuade the contrary. He shall also swear, that he 
shall not take by himself, or by any other, privily, ne 
apart, any gift or reward of gold, or of silver, nor of 
any other thing, the which might turn him to profit, 
unless it be meat or drink, and that of little value, of 
any man that shall have any plea, or process, hanging 
before him, and that he shall take no fees, as long aa 
he be Justice, nor robe of any person, great or small, in 
any case, but of the King himself. You are to know, 
moreover, that the judge so created is not to make any 
solemn entertainment, or be at any extraordinary ex- 
pense upon his accession to his office and dignity; be- 
cause it is no degree in law, but only an office and a 
branch of magistracy, determinable on the King's good 
pleasure. . . . The judges of England do not sit in the 
King's courts above three hours in the day, that is, from 
eight in the morning till eleven. The courts are not 



Xl INTRODUCTION. 

open in the afternoon. . . . The judges when they 
have taken their refreshments spend the rest of the day 
in the study of the laws, reading of the Holy Script- 
ures, and other innocent amusements, at their pleasure : 
it seems rather a life of contemplation than of much ac- 
tion : their time is spent in this manner, free from care 
and worldly avocations."^ 

Before Littleton's death there were two changes in 
the crown, each of them due to the strange vicissitudes 
of the Wars of the Koses; but Littleton's position on 
the Common Bench was permanent. In 1470, when 
Edward the Fourth was displaced and Henry the Sixth 
was restored, new patents were given to all the judges 
of this court, and also of the King's Bench,^ and, al- 
though in 1471, when Edward the Fourth displaced 
Henry the Sixth permanently, a slight change was made 
in the membership of the courts, Littleton was one of 
the judges retaining place.^ The Wars of the Roses, 
in fact, although every judge held during royal pleas- 

1 Fortescue De Laudilms Angliae, chap» LI., Gregorys transla- 
tion. 

This oath of the judges was partly based upon St. 20 E. III. 
cap. 1 (1346). 

A representation of the Court of Common Pleas, in colors, 
from a manuscript of the time of Henry the Sixth, is given in 
Pulling's Order of the Coif, frontispiece. A similar representa- 
tion of the Court of King's Bench is given in Green's Short H is 
tory of the English People, illustrated ed., vol. II., p. 564. 

2 Oct. 9, 1470. The Court of Common Pleas then consisted of 
Danby, C.J., Moyle, Needham, Choke. Littleton, and Yonge. 
Calendar of Patent Rolls, 1467-1477, p. 229. 

« June 17, 1471. Calendar of Patent Rolls, 1467-1477, p. 258. 



INTRODUCTION. xli 

lire and theoretically was functus officio upon a change 
of reign, had little effect upon the composition of the 
bench ; and, indeed, even the actual sittings of the courts 
were disarranged but slightly. 

During Littleton's service as a Judge of the Common 
Pleas he was appointed, like the other judges, upon 
commissions of "byer and terminer and of the peace in 
almost every county of England ; but the greater part of 
his service of this sort was performed in Worcester- 
shire, and the counties to the west and the north. ^ 
There were also appointments upon other commissions 
of no great importance, and two appointments upon 
Parliamentary commissions to try petitions from one of 
the wrecks of the English possessions in France — Gas- 
cony.^ 

In those days of bad roads, service on commissions of 
oyer and terminer and of the peace involved many days 
of social intercourse with judges and lawyers, and con- 
sequently many days of legal discussion. Some of the 
subjects thus discussed can be identified even at this 
late day; for the most important cases wont to the 
King's Bench and the Common Pleas, and are now em- 
balmed in the Year Books. 

In the fifteen years of Littleton's service in the Com- 
mon Pleas, the Year Books present a considerable num- 
bers of cases that can be read with interest even now. 

1 Calendar of Patent Rolls, 1461-1467, and 1467-1477, passim, 
^ Rotuli Parliamentorum, vol. V., p. 571 (1467), vol. VI., p. 8 
<1472). 



Xlii INTRODUCTION. 

Among these are : a ease on excuses for trespass ;^ a case 
on pleading tender;^ a case on the husband's power to 
bring an action for rent when husband and wife joined 
in the lease ;^ a case on both the disabilities of a mar- 
ried woman and the rights of a cestui que twe/ a case 
establishing the copyholder's power to maintain trespass 
against his lord and marking the finai development of 
the copyholder's interest into a full-fledged right ;^ a 
case illustrating the ancient function of jurymen as wit- 
nesses and showing that, when it was attempted to at-^ 
taint a jury for a false verdict, the falsity of the verdict 
could not be proved by new evidence;^ a case on the 
duty of a feoffee to uses ;'^ a case permitting a bailee ta 
maintain trespass;® cases on a servant's power to sub- 
ject his master to liabilities in contract and in tort;® 
a case on the right to go upon land for the purpose of 
making fortifications ;^^ a case on a deed absolute given 
as a security ;^^ a case on infancy and abatement of 

1 Y. B. 6 E. IV. 7, pi. 18 (1466). 

2 Y. B. 7 E. IV. 3, pi. 8, and 4, pi. 10 (1467). 
»Y. B. 7E. IV. 5, pi. 16 (1467). 

*Y. B. 7E. IV. 14, pi. 8 (1467). 

« Y. B. 7 E. IV. 18. pi. 10 (1467). . 

« Y. B. 7 E. IV. 29, pi. 14 (1467-8). 

7 Y. B. 7 E. IV. 29, pi. 15 (1467-8). 

« Y. B. 8 E. IV. 6, pi. 5 (1468). See also Y. B. 9 E. IV. 33, pi. 
9 (1469), especially Little ton*s opinion; and Y. B. 10 E. IV. 1, 
pi. I (1470). 

9 Y. B. 8 E. IV. 9, pi. 9 (1469), especially Pigot's argument at 
1 1 a— 11 b ; and Y. B. 11 E. IV. 6, pi. 10 (1471). 

»-> Y. B. 8 E. IV. 23, pi. 41 (1468). 

" Y. B. 9 E. IV. 25, pi. 34 (1469). 



INTRODUCTION. xliii 

nuisance;* the famous ease called Taltarum's, where- 
by it was settled that a common recovery can turn an 
•estate tail into a fee simple even against remaindermen 
and reversioners ;^- a case on theft by a carrier and on 
the right of an alien merchant to sue in Chancery and to 
have his rights determined " according to the law of 
nature, which is called by some Law Merchant, which 
is law universal through all the world ;"^ a case describ- 
ing peine forte et dure;^ a case on a sale of goods for 
■cash f cases on detriment as a consideration and on the 
jurisdiction of ecclesiastical courts when the considera- 
tion is marriage;* a case on justification of trespass by 
necessity."^ It would be easy to cite other interesting 
<*ases from the Year Books of Littleton's day ; but these 
few, most of which were in the Common Pleas, are 
quite enough to indicate that, although undoubtedly 
those were times when the best of men believed in witch- 
craft and in torture, the law was already an intricate 
and growing science, and service on the bench distinctly 
tended toward developing accuracy of thought and of 
statement. Further, as the Common Bench was the 
<iourt that made a specialty of the law of real property, 

1 Y. B. 9 E. IV. 84, pL 10 (1469). 
« Y. B. 12 E. IV. 19, pi. 25 (1472). 
»Y. B. 13 E. IV. 9, pi. 5 (1473). 

* Y. B. 14 E. IV. 8, pi. 17 (1474). 
» Y. B. 17 E. IV. 1, pi. 2 (1477). 

• Y. B. 17 E. IV. 4, pi. 4 (1477) ; Y. B. 19 E. IV. 10, pi. 18 
<1479-«0). 

» Y. B. 20 E. rV. 10, pi. 10 (1480). 



xliv INTRODUCTION. 

it is easy tg see that to Littleton this judicial career was 
of special value as a preparation for writing the 
Tenures. 

A judgeship was, as Fortescue says, " rather a life 
of contemplation than of action," and " free from care 
and worldly avocations." Yet Littleton's years as judge 
had at least one event not promised by such a descrip- 
tion as this. In 1475^ he received a mark of the royal 
favor by being brought in to add distinction to a brilliant 
ceremony which then was picturesque and which now 
seems both picturesque and pathetic. Nicolas, the his- 
torian of the Order of the Bath, after describing certain 
early admissions to that order, says : " The next cre- 
ation was in 1475, when the Prince of Wales and Duke 
of York, the two sons of King Edward the Fourth, re- 
ceived the honours of chivalry, on which occasion . . . 
many other of the young nobility, together with the 
Chief Justice of the King's Bench, and the learned 
Judge Littleton, were made Knights of the Bath."^ 
The historian goes on to describe the details of the in- 
stituting of a Knight of the Bath; but the modern 
reader does not need those details, gorgeous though they 
be, to fix his mind upon the pageant of that particular 
day; for when the venerable Littleton was made a 

1 April 18. Stow'8 Annals, 1631 ed., pp. 418-419; Anstis' 
Knij^htliood of tlie Bath, pp. 51-52, and appendix. No. LI. 

2 Nicolas' Orders of British Knighthood, vol. III., History of 
the Order of the Bath, p. 17. See Anstis* Knighthood of the 
Bath, pp. 51-52, and appendix. No. U. 



INTRODUCTION. x\v 

Knight of the Bath the two princes who were similarly 
honored were children who now are among the most con- 
spicuous figures in history: one of them was then five 
years old, and the other was three; and eight years 
later the two were smothered in the Tower. 

Littleton remained upon the bench until his death. 
He began to make preparations for death as early as 
1479. In that year he made a conveyance of some of 
his property in trust for the uses to be declared in his 
will,^ as was necessary because the statute of Wills had 
not yet been adopted.^ His will is dated August 22, 
1481. According to the inscription upon his tomb he 
died the next day. This inscription says: " Hie jacet 
corpus Thome Litleton de Frankly militis de Balneo et 
unius lusticiarorum de commXmi banco qui obiit 23 die 
Augusti a. 1481." The present inscription is a resto- 
ration,^ but the same date is given by Coke,^ in whose 
day the original inscription, upon a brass said to have 
disappeared at the time of the wars between the Cavaliers 
and the Roundheads, was probably in existence. There 

* Jeayes, No. 412. There may be some connection between 
this transaction and the great pestilence that prevailed in Lon- 
don and elsewhere for fourteen months, beginning in the latter 
part of September, 1478. Stow*8 Annals. 1631 ed., p. 4?1. It is 
said that, *• fifteene yeares warre past consumed not the third 
part of the people, that onelie fouremoneths miserablie and pi'i- 
fullie dispatched and brought to their graves." Holinshed's. 
Chronicles. 1809 ed„ vol. III., p. 346. 

2 St. 82 H. VIII., cap. 1. (1540). 
» Collins, p. 223. 

* Co. Lit., preface. 



xlvi INTRODUCTION. 

are some difficulties surrounding the date ; but there is 
no reason for rejecting the statement that Littleton died 
on August 23, 1481.* 

The tomb is in Worcester Cathedral. It is an altar 
tomb, of white marble. It stands against the south wall 
of the nave, directly opposite the door now used as the 
ordinary entrance. About two hundred feet to the east 
is the tomb of King John, celebrated as presenting the 

1 According to Y. B. 21 E. IV. 10, pi. 1 (1481), Littleton sat 
once as a judge in November, 1481. This difficulty is not serious. 
In the Year Books it is not uncommon to find cases misplaced. 

The evidence for 1481, in addition to the points noticed in the 
text, is well-nigh conclusive. In the counties in which Littleton 
was habituaUj of the commission of the peace he appears in 
commissions appointed Feb. 11 and May 28, 1481, and no later, 
although commissions were appointed for the same counties soon 
afterwards, e. g. Oct. 7 and Oct. 25» 1481 ; and, besides, on Apr. 
16, 1481, he was appointed for the last time on a commission of 
oyer and terminer. Calendar of Patent Rolls, 1476-1485, pp. 289, 
557, 560. The abstract of inquisitions post mortem gives the in- 
quisition as in 21 E. IV., which regnal year closed Mar. 4, 1481-2. 
Calendarium Inquisitionum post Mortem^ vol. IV., p. 407, No. 
55. The MS. pedigree at Hagley Hall gives a copy of tlie full 
inquisition for Staffordshire, which says *^ quod pdict. Tho. Lit- 
tleton obiit 23 die Augusti ultimo predicto " and is dated Oct. 16, 
21 E. IV. (1481). The patent of Littleton*s successor on the 
Common Bench, Jolm Catesby, is dated Nov. 20, 1481. Calendar 
of Patent Rolls, 1476-1485, p. 288. Dugdale*s Origines Juridi- 
dales, second ed.. Chronica Series, p. 72, gives the date of 
Catesby's appointment as 1482 ; but this is explained by Dug- 
dale's habit of treating the regnal year as beginning on the first 
day of January next after the day on which the regnal year 
legally began ; and Dugdale at this very place gives Catesby 's 
appointment as 20 Nov. 21 E. IV.. which would be November, 
1481, and agrees with Foss' Lives of the Judges, vol. IV., pp. 
392, 417. 



INTRODUCTION. xlvii 

earliest monumental effigy of an English king. In 
other parts of the Cathedral are tombs of Crusaders and 
of early bishops, and curious carvings from an early 
day. These tombs and carvings and the great interior 
itself and the adjoining cloisters and the monastery of 
which only part remains — all these existed in Little- 
ton's time and were doubtless known to him from child- 
hood. Littleton himself chose this as his burial place ; 
and he himself prepared this tomb. 

Littleton's will has disappeared; but as it was ad- 
mitted to probate in the Consistory Court of Canter- 
bury, the record is preserved in Somerset House, Lon- 
don.* The will throws such an interesting light upon 
the fifteenth century, and especially upon Littleton him- 
self, that it deserves to be read from beginning to end. 
It ifi as follows : — 

" In the name of God, Amen. I, Thomas Lyttel- 
ton, knight, oon of the King's justice of the common 
place,^ make my testament, and notifie my wille, in 
the manner and forme that foUoweth. First, I be- 
queth my soule to Almighty God, Fader, Sonne, and 
Hollye Ghost, three Persons and oon God, and our 
Lorde, maker of heven and erth, and of all the worlde ; 

1 In Index to Wills Proved in the Prerogative Court of Canter- 
bury, 1383-1558, vol. II., p. 849, the will is thus described:— 

* 1481. Lytilton, sir Thomas, Knyght, Worcester ; Warwick ; 
Stafford, 3 Logge." 

2 Even in Cokeys time, as the translation adopted in Co. Lit. 
shows, this was a frequent mode of writing Common Pleas. 



xlviii INTRODUCTION. 

and to our most blessed Lady and Virgin Seynt Mary, 
moder of our Lord, and Jesu Christ, the only begotten 
Sonne of our said Lorde God, the fader of heven, and 
to Saint Christopher, the which our said Lord did 
truste to here on his shoudres, and to all the saints of 
heven: and my body to be berried in the torn be I lete 
make for me on the south side of the body of the cathed- 
rall-church of the monastere of our said blessed lady, of 
Worcester, under an image of St Christopher,* in caas 
if I die in Worcestershire.* Also, I wuUe and specially 
desire, that immediately after my decesse, myn execu- 
tors find three gode preests for to singe iij. trentals for 
my soule, so that everish preest by himself sing oon tren- 
tal, and that everish such preest have right sufficiently 
for his labor ; also that myn executors find another gode 
preest for to sing for my soule, fyve masses, and rowe ; 
the offyce of which beginneth, Humiliavit semel ipsum 
Domlnus Jesu Christus usque ad mortem. Also I 
give one hundred shelings^ by yere to the priour and 
covent of the said monastere, out of certain messuages 
and landes in the cite of Worcester, and to their suc- 
cessors, to singe at the altar, hallowed for the worship 
of St. George and St. Christopher, daily, at vii. in 
the morning, for the soules of my fader and moder, and 
for the soul of William Burley, my fader-in-lawe, and 

1 The ima^e has disappeared. 

2 He had his wish, for according to tradition he died at Frank- 
ley Manor. 

* It should be kept in mind that money was then worth at least 
ten times its present value. 



INTRODUCTION. xlix 

for the soule of Sir Philip Chetwin^ and for all soules 
that I am most specially bounden to pray, and specially 
for myn own soule after my decesse; and that everish 
such monk sing everish Friday, a mass of requiem, and 
ijd. for his troubel to be paid him by the handes of the 
sexton ; and I wuUe that whenever the covent singe the 
annual placebo and dirige and requiem for my soule, 
and that of my ancestors, that they have vis. viiid. for 
thyr disport and recreation. I wulle that the said 
covent have C. lib. for performyn this dyvin servyce. 
" Also I wulle, that the feoffees to myn use, of and 
in the halfyndele of the manor of Baxterley and Bent- 
ley, in Warwickshire, and in Mosele, in the lordship of 
Kingsnorton, and in Stone-besyd-Keddermyster,in Wor- 
cestershire, make a sure estate unto Richard Lyttel- 
ton,^ my sonne, and to the heirs of his bodie, with all 

1 The lii-st husband of his wife. 

^ The second son, for whom the treatise was written. The 
date of his birth is unknown. In 1479 he was named by his 
father as one of the grantees of cei*tain lands in trust for purposes 
to be named in his father's wiU. Jeayes, No. 412. He was named 
as an executor in this will, and the record of the will shows that 
he qualified as such. In 1503 he was a justiciar in Staffordshire. 
Rymer's Fcedera, vol. XIII., p. 87. In 1504 he was placed upon 
a Parliamentary commission. RoUdi Parliamentorum, vol. VI., 
p. 540. In 1505 he was one of the three governors of the Inner 
Temple, being in fact the first governor named in the earliest 
extant record of the society. Calendar of Inner Tem pie Records, 
vol. I., p. 1. He last appears in the records of the society in 1516 ; 
and in 1517 another member is ** assigned a chamber where Lit- 
tilton lay." and in 15l8hisson Edward **is assigned the chamber 
where his father lay." lb. pp. 87, 40-41 . His present representa- 
tive, in the female line, is Lord Hatherton. 

4 



1 INTRODUCmON. 

chartours, muniments, and evidences concernyng the 
same. 

" Also I wulle, that he have the reversion of the 
manor of Molston-besyde-Clybery, in the county of 
Shrewsbury. Also I wulle, that my said sonne Rich- 
ard have all my state, title, and interest that I have in 
a messuage in the parish of St. Sepulchre's of London, 
on the north syde of the saide church,* which I holde of 
the Abbot of Leicester for term of yeres. Also I wulle, 
:that the feoffees to myn use of and in the manor of 
Spechley, in Worcestershire, make a sure estate to my 
Sonne Thomas Lyttelton^ and the heirs of his body, 
-with all chartours, &c., concernyng the same, and all 
•other lands, rents, reversions and services that I have 
in Spechley, Cuddely, Bradicot, and Whitelady Aston, 
with the lands and tenements in Weddesbury in com' 
Stafford. 

" I wulle, that my wyf have a bason of silver, in the 
myddes whereof been myn arms, and an ewer of silver, 
two great salt-salers, and a kever, weying 93 ounces and 
4 ; a standyng plaine gilt peece, with a plaine gilt kover, 
weying 24 ounces and J ; six holies of silver, in the 

1 This was near the Inns of Court. Newgate prison, and Smith- 
field, which last was then the place for trials by combat. Stow*s 
Survey of London, Thoms' ed., pp. 15-16, 143. The church is to- 
day interesting chiefly because it contains the tomb of Captain 
John Smith of Virginia. 

• His youngest son, the ancebtor of the Sir Edward Littleton 
who sat in Parliament with Sir Edward Coke, became Chief 
Justice of the Common Pleas and Lord Keeper, and by Charles L 
was made a peer with the title of Baron Littleton of Munslow. 



INTRODUCTION. ]£ 

myddes of which been enamelled, for her using six 
moneths of the yere. A standing peece with kever 
weying 19 ounces and ^. Two peeces of silver, one cov- 
ering another, the which I occupie at London ; a powder 
boxe of silver; a paxe horde; two cruetts and a saker- 
ing bell, all of silver. Also I wuUe, that William Lyt- 
telton^ my sonne and heire shall have a depe washing- 
bason of silver weying 41 ounces, and two salt-salers 
of silver, with a kever to oon of them, weying 31 ounces 
and i, with another peece all over gilt in the myddes 
of which be iij. eagles, a kover, weying 33 ounces; 
also a lowe peece of silver, with a kover, embossed in 
the likeness of roses, weying 29 ounces and ^: also 
he shall have a dosein of my best spones. Also I wulle 
that my sonne, Richard, have two littel gilt salt-salers, 
with gilt cover to oon, now at London; also oon littel 

1 Authorities differ as to the date of his death. It was Nov. 8, 
1508, according to Nash^s Collections for the History of Worces- 
tershire, Tol. I., p. 403 ; but it was 1507 according to the pedigree 
opposite that page. It was December, 1507, and his age was 
sixty -five, according to Collins, p. 831, and also according to the 
MS. pedigree at Hagley Hall. The authorities agree that he was 
buried in the abbey at Halesowen. John, his son and heir, mar- 
ried ** Elizabeth, the daughter and coheir of Sir Gilbert Talbot, 
of Qrafton. in com, Wigom, by Anne, his wife, the daughter 
and coheir of Sir William Paston, by Anne, his wife, third sister 
and coheir to Edmund Beaufort, Duke of Somerset, gi*andson of 
John of Gaunt, Duke of Lancaster : in right of whom Lyttelton 
and his posterity have lawfully quartered the arms of France 
and England, within a bordure gobone ; and likewise all the arms 
and quarterings of Talbot and Paston.*' Collins, pp. 331-332. 

The present heir is the Right Hon. Charles George Lyttelton, 
Viscount Cobham, Baron Lyttelton, Baron Westcote. 



lii INTRODUCTION. 

standyng peece, with a gilt kover, which hath at the foote 
a crown, and another on the kover, weying 22 ounces; 
also a standyng gilt nutt, and the best dosein of the 
second sort of my spones. Also I wuUe, that Thomas 
Lyttelton my sonne have two salt-salers of silver wey- 
ing 27 ounces; a standyng peece weying 21 ounces gilt 
and myn arms in the myddes of the same; also a boll 
of silver embossed with gold bosses outward, weying 
11 ounces and three quarters ; also he shall have a dosein 
spones of the third sorte. 

" Also I bequeth my gode littel mass book and gode 
vestment with the apparyl to an auter of the same sorte 
of vestments which were my moder's, and also a gilt 
chales, I geve them to the blessed Trinite, to the use 
and occupation of my chapel of Frankley in honour 
of our said most blessyd Trinite ; inasmuch as the said 
chapel of the blessyd Trinite and an aulter thereof is 
halowed in the worship of the said blessyd Trinite, for 
to have masse songen there on Trinite Sunday and other 
high festivals and other days to the pleasure and honour 
of our said most blessyd Trinite. I wulle, that a big- 
ger cofer and lockc and key be provyded for the safe kep- 
ing of these vestments and chales, within the chapel of 
Frankley ; and the Lord of Frankley for the time being 
have the keping of the said key by himself, or som 
true and faithful person, so that he se that the saide 
masse book, vestment, chales, and apparyl be surely 
kept, as he wull answer to the blessed Trinite. Also I 



INTEOPUCTION. liU 

wuUe, that my great antiphoaer be ever more ha<J and 
surely kept in wordbip of God and St. Leopard to the 
use and occupation of and for the chapel church of St. 
Leonard, of Frankley. 

" Also I wulie, that all my uteosils of myn household, 
except silver plate, as beds, matraces, blanquetts, 
brushes, tables, all pots and chaldrons, and all such 
things that longith to my kechyn, after the thyrd part 
geven to my wyf, be equally devided between my three 
sonnes. 

" Whereas I have made certaigne feoffees of my 
manour of Tixhale, in Staffordshir, for terme of the lif 
to my wif, the which manour she had a jointour for 
terme of her lif, with me, neverthelater my wille is, 
that my said wif do not hereafter trouble, vexe, ne dis- 
turbe my wille and ordenance that I have and will 
mak of and in or for certaigne lands and tenements 
within the cite of Worcester; now my will and orde- 
nance is, that she shall have the saide manour of Tix- 
hale, with the reveniz thereof, during her lif, or else 
that the profitts thereof shall be taken and disposed in 
alms deeds for my soul by myn executor or by such 
other as I wulle thereto assignee, during her lif. 

" I wuU that my three sonnes and Sr. Xtopher 
Goldsmyth, parson of Bromsgrove, Sr. Robert Bank, 
parson of Enfield, and Robert Oxclyve, be myn execu- 
tors; that the three first have xx.lib. in money apeece, 
toward their increce and profitt, the latter v. marks each 



liv INTRODUCTION. 

of money, trusting in them that they wuU do their dili- 
gent labor to se that my will be performed ; the which 
as they know wele the performyng thereof in godely 
hast and tym, that shall be to the hasty remedie of my 
soule, and the long tarying thereof is to the retarda- 
tion of the meritts of my soule : wherefore I wull that 
everych of my said sonnes to whom my grete specyal 
trust is, as kind nature wull, for to performe and exe- 
cute my will aforesaid. 

" I wulle that ray wyf have my best plough, and all 
apparyl thereto, and ten of my best plough oxen, and 
my best waine; and that William Lyttelton have my 
second best waine, two ploughs, and ten oxen. Also I 
wulle and specially desire that all the money, debts, 
goods and catells that be myn at tym of my deth, over 
and above the cost and expensys of myn exequies and fu- 
neral, and over that that is bequethed by me in my lif,. 
be sold and disposed for my soule, in alms and chari- 
table deeds, that may be most profitable and merit to 
my soule. Also I wulle that all my beests and quick 
cattel, not afore bequethed, after myn exequies and fu- 
neral, be sold by myn executors and to be disposed as 
they think most expedient for my soule. 

" I wulle and bequeth to the abbott and covent of 
Hales Oweyn, a boke of myn called Catholicon, to theyr 
own use for ever ; and another boke of myn, wherein is 
contaigned the Constitutions Provincial, and De gestis 
Romanorunij and other treatis therein, which I wulle 
be laid and bounded with an yron chayn in some con- 



INTRODUCTION. ly 

venient parte within the said church at my costs, so that 
all preests and others may se and rede it whenne it 
plesith them. Also I wulle and bequeth to Sir Richard 
Howson, my preest, xl.i. in money, and the same to my 
servant Hawkins. Also I bequeth to Dame Jane, my 
wyf, xx.lib. in money in recompense of a silver bason, 
the which was somtym her husband's Sir Philip Chet- 
win's ; to the said Dame Jane my best habyt, that is to 
saye, my gown, cloke, and hode. Also fo my doughter 
Elyn my second best habyt, in lyke forme. Also to 
Alice my second doughter my third best habyt, in lyke 
forme. Also I bequeth my gloset-saulter to the priorie 
of Worcester. Also I bequeth a boke called Fasiculus 
Morum to the church at Enfield. Also I bequeth a boke 
called Medulla Orammatica} to the church of Kings- 
norton. Also I wulle that my grete English boke^ be 

^ The books whose titles are given in the will are thus described 
by J. M. Rigg, Esq., of Lincoln's Inn, in the Dictionary of Na- 
tional Biography, vol. XXXIII., p. 374 : ** * Catholicon ' (i.e. the 
English-Latin dictionary known as * Catholicon Anglicum,' 
printed by the Camden Society in 1882), the * Constitutions Pro- 
vincial ' (i.e. Lyndewode's * Constitutiones Provincial es Ecclesiae 
Anglicanae,' printed by Wynkyn de Worde in 1490), the *De 
Gestis Romanorum * (the well-known * Gesta Romanorum *),... 
the * Fasiculus {sic) Morum ' (perhaps a copy of the Latin original 
of Jacques Le Grant's * Livres des Bonnes Moeurs/ Paris, 1478, 
fol.. of which Caxton in 1487, fol., is a translation), . . . the 
* Medulla Grammatica' (more correctly ' Grammatice'), an 
English-Latin dictionary . . . (see d^atholicon Anglicum, Cam- 
den Soc, Pref. X. )." 

3 What was this great English book ? Not the Tenures. Even 
in manuscript the Tenures would not be large, as can be seen 
by examining the MSS. in the Cambridge University Library* 



Ivi INTRODUCTION. 

sold by myn executors, and the money thereof to be dis- 
posed for my soul. 

" I bequeth to Thomas Lyttelton, my sonne, a little 
flatte peece of silver, with a kover, all over gilte. Also 
to Edward Lyttelton, my god-sonne, a little standing 
goblet of silver, with a kover to the same, all over gilte. 
And I wulle and specially desire my moost betrusted 
lord, my lord bishop of Worcester,* to be overseer of 
this my will, to be performed, as my mx)0st special trust 
is in his gode lordship : in witness whereof, to this my 
will I have sett my scale, theese being witnesses. Sir 

Nor could the Tenures be called English, for the work is written 
in Law French. That the subject of the Tenures is English 
law is irrelevant, for the testator was obviously thinking of the 
language — all the previous books being in Latin or being, like the 
one he had last mentioned, aids to translation into Latin. 

Possibly this great English book was a MS. copy of Wycliffe*s 
Bible. The Bible was then, as now, frequently called **The 
Book." Murray's New English Dictionary, sub voc. **Book ;" 
Century Dictionary, sub voc. ** Book." That Littleton probably 
had a copy of the Bible is shown by Fortescue*s description of the 
life of a judge. See ante, p. xl. The value of a Bible in 
those days was about five marks. Paston Letters, Gairdner's ed. , 
vol. II., p. 329. 

Other possibilities are Caxton's editions of Chaucer or of the 
Chronicles of England. 

A more probable explanation is that the great English book 
was a miscellaneous collection of manuscripts in English, Such 
collections were common and could liardly be designated by a 
title more specific than *' great English book." 

1 John Alcock, later Bishop of Ely and founder of Jesus College, 
Cambridge. Dugdale's Monusticon Anglicanum, 1718 ed., p. 24 ; 
Britton's Cathedral Antiquities, vol. IV., Worcester, appendix, 
p. 7. 



INTRODUCTION. Ivii 

Bicbard Howson, priest, Eoger Hawk3ais, Thomas 
Parkess, and others. 

*' Written at Frankley, 22 August, the yere of our 
Lord Jesu Christ, MCCCCLXXXI." » 

The property indicated by the will, large as it was, 
did not constitute the whole of Littleton's estate. The 
will does not mention the land that was to go to the 
heir. The inquisition post mortem shows that Little- 
ton owned at least six manors — possibly more — besides 
a dozen other items, counting as one item twelve mess- 
uages in Lichfield.* Further, the books named in this 
will were certainly not the whole of Littleton's library ; 
for the list contains no book on the English law — an 
omission explainable on the theory that such books, — 
that is to say, such manuscripts, for Caxton had had his 
printing press in England for only about four years, and 
there were no printed books on English law as yet, — had 
already been given to his son Richard. Even the will 
and the inquisition combined, although they show 
<?learly enough that Littleton was prosperous, do not in- 
dicate what manner of man he was. 

There used to be three portraits. One was upon a 
brass plate set in the top of the tomb. It disappeared 
in the wars of the Commonwealth ; but it is described as 
representing a kneeling figure, with these words pro- 

1 CoUins, pp. 324-828 ; Tomlins' Lyttleton's Tenures, introduc- 
tion, xxxiii.-xxxvii. 

^ Calendarium Inquisitionum post Mortem, vol. IV., p. 407, 
No. 55 ; Collins, p. 328. 



Iviii INTRODUCTION. 

ceeding from the mouth: ^'Fili Dei miserere mei/'^ 
Another portrait was in a window of St. Leonard's 
Church at Frankley, and represented a kneeling figure 
" in skarlett, with a coyfe on his head."^ This is gone 
now, and so is a portrait in a window of the church 
at Halesowen. The well-known engraving,^ which 
first appeared in 1629, is vouched for by Coke as a 
" true portraiture." Probably it was based upon the 
portraits named. It is the only representation of Lit- 
tleton having fair claim to authenticity.^ It depicts a 

1 Co. Lit., preface ; Collins, p. 333. Tliere is a pen and ink 
sketch of this figure in tlie MS. pedigree at Hagley Hall. 

* Habington*s Survey of Worcestershire, edited by Amphlett^ 
vol. II., p. 101. 

* The engraving is the work of Robert Vaughan and is found 
in Co. Lit., 2d. ed., and several subsequent editions, although 
many cx>pies lack it. It has been reproduced in PuUing's Order 
of the Coif, opposite p. 273. There is a small copy, well executed, 
by Thomas Cross. According to Walpole's Catalogue of En- 
gravers, Vaughan and Cross were contemporaries. 

* The painting in the Inner Temple, of which there is a copy at 
Hagley Hall, dates apparently from the seventeenth century. It 
represents a figure in the judicial costume of the time of Coke, but 
not of the time of Littleton. It has been suggested that this was 
simply the result of using a wrong costume in composing a 
picture base<l upon the portraits then in existence. Report (by 
F. A. Inderwick and Leonard Field) on the Inner Temple Pic- 
tures of Judge Littleton and Sir Edward Coke, passim. The 
painting, however, is by such a skilful artist that it has actually 
been attributed to Van Dyck ; and an artist of that class would 
be unlikely to make a serious mistake as to costume. The paint- 
ing has long been called a portrait of Judge Littleton, and prob- 
ably it represents Coke's contemporary, the Chief Justice of the 
Common Pleas and Lord Keeper of the Qreat Seal. See ante^ 
p. 1., n. 2. 



INTRODUCTION. Ux 

"Rneeling figure, with the sentiment " Ung Dieu et Ung 
Roy; " and it conveys the impression that Littleton had 
a slim body, a small but shapely head, and regular 
features. This portrait differs little from many of the 
fifteenth century, presenting hardly more than a con- 
ventional face and figure in a judicial costume; and this 
was doubtless one reason for Coke's suggesting that any 
one wishing to learn the individual peculiarities of Lit- 
tleton must read the Tenures.^ 

The book is of uncertain date, but probably was writ- 
ten towards the close of Littleton's life.^ It professes 
to have been written in order to aid Littleton's son Rich- 
ard® in his study of the law. To an anonymous tract, 
of uncertain date, entitled The Old Tenures,^ Littleton 
was indebted for the suggestion of the title by which his 
work was originally known — The New Tenures. There 
are two early manuscripts of Littleton's Tenures in Law 
French, one on vellum and one on paper ; but although 
these were almost certainly written before Littleton's 
death, they appear not to be in his handwriting.^ The 

1 Co. Lit., preface. 

* As sections 291 and 334 speak of chapters on Tenant by Elegit 
4ind Tenant by Statute Merchant, which in fact are not found, 
there is ground for Coke's belief that the work lacked final re- 
vision. Co. Lit., preface. 

' The known dates as to Richard throw little light upon the 
probable date of the book. See ante, p. zlix., n. 2. 

* Old Tenures may be found in Coke's Law Tracts, and in the 
•eleventii and twelfth editions of Co. Lit. 

* These manuscripts are in the Library of the University of 
•Cambridge. Tlie handwriting, especially in its elaborate capi- 



Ix INTRODUCTION. 

book was printed by Lettou and Machlinia, in 1481 or 

1482, being one of the earliest books printed in Lon- 
don and the earliest treatise on the English law printed 
anywhere.^ The second edition was printed about 

1483, at London, by Machlinia. The third edition was 
printed about 1490, in France, at Rouen, by William 
le Tailleur. This last is often called the Rohan edi- 
tion, and it is interesting because it was the oldest 
known to Coke and was printed at the same place and 
from the same type and about the same time as Stat- 
ham's Abridgment — a book that is sometimes erro- 
neously called the earliest printed book of English law. 
The Tenures soon appeared in many editions tliat bear 
the names of well-known English printers — Pynson, 
Redman, Berthelet, Rastell, Myddylton, Smyth, Powel, 
Tottill, Yetsweirt, Wight, and the Company of Station- 
ers. English translations began to appear early in the 

talization at the beginning of sections and in the carefully uni- 
form length of lines, indicates the workmanship of a copyist. 

The vellum MS. begins in the midst of section 82 and stops in 
the midst of section 690. It abounds in abbreviations. 

The paper MS. used to contain this memorandum, showing 
that it existed in 1480 : *' Iste liber emptusfnit in ccemeterio Sti. 
PatilL London, 27th die Julii anno regis B. 4ti. 20mo. 10«. 6rf.*» 
Co. Lit., 19th ed., Butler's preface, p. xxv. The leaf bearing 
that memorandum is now gone. The MS. closes on folio 77 
with : *' quando ratione probatur, Expliciiint tenz Dn, Litilton, 
Harvngton." It has wide margins and a few annotations. 

* The Abrigement des Statutes was printed about the same 
time by the same printers. The British Museum has a volume 
in which the Tenures and the Abrigement are bound together, 
the former coming first. 



INTRODUCTION. Ixi 

sixteenth century,* coming from the same printers that 
still continued to produce editions in Law French. 
In 1581 William West, author of " Symboleography,'^ 
divided the Law French text into sections numbered in 
the manner now used. Before 1628 the editions num« 
bered more than seventy — ^most of them in Law French. 
Several of these editions were usually printed with wide 
margins for manuscript notes; and to-day every large 
library has copies containing annotations so volumin- 
ous as to indicate that it was not uncommon for a law- 
yer to use his copy of Littleton as a common-place book. 
In 1628 appeared the first edition of Coke's First 
Part of the Institutes of the Laws of England, some- 
times called The First Institute, but commonly called 
Coke upon Littleton.' Coke printed in parallel col- 

^ In the Cambridge University Library is a MS. translation 
that Sir K. E. Digby considers as probably not later than 1500. 
EncyclopsBdia Britannica, 9th ed., vol. XIV., p. 705. 

The Harvard Law School has a MS. translation closing in the 
midst of section 444, not very ancient, but probably earlier than 
Co. Lit. 

2 In sevei*al ways Coke had been reminded of Littleton through- 
out his whole professional life. Both Littleton and Coke were of 
the Inner Temple. Each of them was recorder of Coventry. 
Littleton's grandson married a granddaughter of Sir William Pas- 
ton, Judge of the Common Pleas ; and not long afterwards Coke 
married his first wife, a member of the same Paston family. 
Nash*s Collections for the History of Worcestershire, vol. I., p. 
493 ; Johnson's Life of Coke, vol. I. pp. 65-67, vol. II. p. 853. 
Two of Littleton's descendants were implicated in the Gun- 
powder Plot ; and they were successfully prosecuted by Coke as 
Attorney General. Nash's Collections for the History of Wor- 
cestershire, vol. I., p. 491 ; Habington's Survey of Worcester- 



Ixii INTRODUCTION. 

umns the Law French of the Tenures and a translation 
— probably not the work of his own hand,^ — and sur- 
rounded Littleton with a stupendous commentary which 
contains the gleanings of a peculiarly laborious life and 
covers almost the whole domain of English law. Coke 
upon Littleton, unrivalled among law books for vast 
and various learning, has a curious place in the general 
history of literature, for it presents the most conspicu- 
ous example of a masterpiece upon a masterpiece — 
much as if the plays of Shakespeare were entwined 
about the Canterbury Tales. 

It is impossible to state with accuracy how many 
editions there have been of Coke upon Littleton and how 
many of Littleton alone ; for the editions have been very 
numerous, and there have been many abridgments, re- 
arrangements, revisions, and even versifications, some of 
which are not entitled to be called editions. Counting 
only such publications as reproduce the whole of the 

shire, vol. I., introduction, p. 15. Others of Littleton's descend- 
ants were Coke's associates in the Inner Temple. Calendar of 
Inner Temple Records, vol. I., pp. 808. 322, 829, 409, 422, vol. II., 
pp. 95, 120. One of these last. Sir Edward Littleton, was with 
Coke in Parliament in the days of the Petition of Right, on Coke's 
death succeeded to the occupancy of Coke's old chambers in the 
Temple, and later became Chief Ju:»tice of the Common Pleas, 
Lord Keeper of the Great Seal, and i^ peer under the title of 
Baron Littleton of Munslow. 26., vol. II., p. 217. 

1 Although Co. Lit., preface, says : ** We have left our author 
to speak his own languaj^e. and have translated him into Eng- 
lish," the translation is from time to time criticised by Coke in a 
manner indicating that he did not feel fully responsible for it. 



INTRODUCTION. Ixiii 

Tenures, the editions of Coke upon Littleton number 
about twenty-five and the other editions of Littleton 
number almost ninety. It would be easy to fill 
many pages with eulogies pronounced upon Littleton, 
and with somewhat questionable traditions that certain 
eminent lawyers used to read the whole of the Tenures 
on each Christmas; but these figures tell clearly enough 
the high place that was won by Littleton. It will suf- 
fice, then, to give two quotations — one a statement of 
fact, and the other a statement of opinion. 

The statement of fact, showing how soon the Tenures 
gained recognition, is by William Rastell, barrister and 
publisher, who as early as 1534 said, in his preface to 
a collection of twelve law tracts : " How commodyous 
And profitable unto gentilmen studentes of the law, be 
these thre bokes, that is to wit, Natura Brevium, The 
olde tenures, & the tenures of mayster Lyttylton, ex- 
perience proveth and the bookes them selfe declare. 
For lyke as a chylde goyng to scole, fyrste lemeth his 
letters out of the a. b. c. : so they that entende the study 
of the law, do fyrste study these iii. bokes." 

The statement of opinion is the celebrated eulogy in 
Coke's preface : " That which we have formerly writ- 
ten,* that this book is the ornament of the Common Law, 
and the most perfect and absolute work that ever was 
written in any human science: and in another place, 

* 2 Co. Rep. 67a ; 10 Co. Rep., preface, pp. xxviii.-xxx. See 
Co. Lit. 311a. 



Ixiv INTRODUCTION. 

that which I affirmed and took upon me to maintain 
against all opposites whatsoever, that it is a work of aa 
absolute perfection in his kind, and as free from error, 
as any book that I have known to be written of any 
human learning, shall to the diligent and observing 
reader of these Institutes be made manifest, and we by 
them (which is but a commentary upon him) be deemed 
to have fully satisfied that which we in former times 
have so confidently affirmed and assumed. . . . 
And albeit, our author in his three books cites not many 
authorities, yet he holdeth no opinion in any of them, 
but is proved and approved by these two faithful wit- 
nesses in matter of law — authority and reason. Cer- 
tain it is, when he raiseth any question, and sheweth the 
reason on both sides, the latter opinion is his own, and 
is consonant to law. We have known many of his 
cases drawn in question, but never could find any judg- 
ment given against any of them. . . . Certain it ia 
that there is never a period nor (for the most part) a 
word, nor an &c., but affordeth excellent matter of learn- 
ing." 

Obviously eulogy could go no further and could come 
from no higher source. Nor has Littleton's reputation 
lessened with the lapse of time. It is true that his fa- 
mous book is no longer used as a daily key to existing 
law ; but its diminishing utility in practice has been 
more than balanced by its increasing value as a picture 
of the past. To the scholarly reader, indeed, this vener- 



INTRODUCTION. Ixv 

able classic is attractive from many points of view. 
Here the legal author finds an eminent example of one 
of the successful forms of treatise — a book devoid of 
literary ambition, free from speculations as to the past 
or the future, and exclusively devoted to gi ving in clear 
and accurate language, li ke an instantan eous photo- 
graph^he living law just as the writersaw it in qpera- 
tioiuahouLjiim. Here, again, the educator perceives 
one fruit of a system of educational and professional 
life which steeped the lawyer in law from his youth 
to his death — sending him early to an inn of court, 
calling upon him to dispute and lecture before young 
and old, setting him to argue constantly both in and out 
of court, inducing him to act frequently as amicus 
curiae, at last placing him upon the bench, and through- 
out the whole of his career, whether in London or on 
circuit, habitually causing him to leave the distractions 
of home and to live an intimate and almost monastic 
life with men whose thought and conversation dealt 
chiefly with law; — and here, too, the educator teams 
what manner of book it was that formed the introduc- 
tion to legal education from a hundred years before the 
publication of Coke's Institutes until fifty years after 
the publication of Blackstone's Commentaries. Final- 
ly, here the historian gets a picture of the law at the 
interesting moment when from the middle ages were 
springing the beginnings of modern life, and reads one 
of the chief intellectual products in England of the 

5 



Ixvi INTRODUCTION. 

fifteenth century, and, if he is wise, discovers that this 
little book — at first glance strangely out of place in 
the Wars of the Eoses — was a natural and necessary 
product _of an age when^ despite private and public 
warfare, or, more accurately, on account of it^ the Eng- 
lish people saw in law the only protection from oppres- 
sion and anarchy. These are some of the reasons why 
the treatise on Tenures — even independently of the light 
thence derived by law students and practical lawyers 
as to the otherwise mysterious causes of present rules 
•of law — still has a place in useful literature, and why, 
although Coke's superlatives, vibrant with the enthu- 
siasm underlying much of the prose of the earlier half 
of the seventeenth century, would not be used by any 
writer of this twentieth century in eulogy of any book 
whatsoever, nevertheless it is hardly possible to name a 
legal author to whom praise is given to-day more freely 
than to Littleton. 



IL 



BIBLIOGRAPHY. 



The following list attempts to catalogue all the 
printed^ editions of the Tenures.^ In such an un- 
dertaking it is inevitable that there shall be omissions 
and errors. To reduce the defects to a minimum, in 
1902 the editor visited many libraries that might be ex- 
pected to contain copies of Littleton. The copies thus 
found are attributed to the proper libraries by ab- 
breviations in parentheses.^ The editor has also in- 
serted — though without the parentheses indicating per- 
sonal examination — other editions whose existence is 
vouched for by good authority. In making the list, 

* The MSS. are described antey pp. lix-lxi, notes. 

' The list does not include Tolumee that present Littleton in an 
abridged or amended form. A few of these volumes are the fol- 
lowing : The Young Lawyer's Vade Meeum, containing part of 
Littleton in verse, 1706 (B. L. S., an imperfect copy); Hobbe's 
Familiar Exercises, 1831 (B. M.), and later editions ; a revision 
by the editors of the Law Students' Magazine, 1846 (B. M.),and a 
seoond edition in 1854 (6. M.). 

' The abbreviations are thus explained : — 

A. S., All Souls College, Oxford ; B., Bodleian Library of the 
University of Oxford ; B. L. S., Birmingham Law Society ; B. M., 
British Museum ; B. P. L., Boston Public Library, Boston, Mas- 

Ixvii 



Ixviii INTRODUCTION. 

editions heretofore uncatalogued were found; but it 
was also discovered that some editions heretofore sup- 
posed to exist were merely imaginary, cataloguers hav- 
ing made clerical errors in copying dates, or having 
said that an edition in Law French was in English or 
vice versa, or having confused Littleton's Tenures with 
the Old Tenures. The editor has good reason to suspect 
that he has not discovered all the editions; and, con- 
versely, it is not improbable that some of the editions 
herein catalogued separately are from the same type, 
with mere alterations in the date of the title-page or 
of the colophon, and that consequently future investi- 
gators will make a few omissions in the list here given. 
Each edition is catalogued in an abbreviated way. 
First is given the date, when indicated by the title-page 
or by the colophon. Next is given — except as to Coke 
upon Littleton and the editions containing a translation 
into modern French — the name of the publisher, when 

sachusetts ; B. S. L., Boston Social Law Library; C, Library 
of the University of Cambridge ; G. I., Gray's Inn ; H. C, 
Harvard College ; H. L. S., Harvard Law Scliool ; I. L. S., Incor- 
porated Law Society, London ; I. T., Inner Temple ; K., Mr. W. 
V. Kellen's private library, Boston, Massac 1 1 use tts ; L. C, Li- 
brary of Congress ,* L. I., Lincoln's Inn ; M. T., Middle Temple; 
S. J. C, St. John's College, Cambridge ; T. C. C, Trinity College, 
Cambridge; T. H. C, Trinity Hall, Cambridge; U. C. L., Uni- 
versity College, London; V. C, Viscount Cobham's private li- 
brary, Hagley. 

Many other libraries are known to contain copies of editions 
in tliis bibliography. For example, the John Rylands Library at 
Maiicliester has many editions, including the three earliest. 



INTRODUCTION. Ixix 

known; and it is to be understood that the place of 
publication was London, unless otherwise indicated. 
Next is given, within parentheses, an indication of the 
libraries in which the editor has seen copies. When the 
editor has seen no copy, the authority for inserting the 
edition is cited.* 

In Law French only. 

ITo date. Lettou and Machlinia. (B. M., three 
copies, one of them imperfect; C, three copies; K.) 
The British Museum Catalogue gives 1481 as the proba- 
ble date. Sayle's Early Printed Books in the Cam- 
bridge University Library, vol. I., p. 19, gives 1482. 
The volume is a folio. The size of the printed page is 
4 13-16 by 7f inches. The type is a rough black-letter, 
resembling the formal manuscripts of the time. Chap- 
ters begin with an illuminated letter. Although there 
are no paragraphs, there is much use of a rude 
paragraph mark. Sentences begin with a capital. 
There are a few periods, and no other punctuation 
marks. There are many abbreviations. The first page 
is blank. The second page begins : " Incipit tabula 
h libri/' This table of contents is much like the one 
usually found at the end of the Tenures. It is divided 
into three books, numbered, and into chapters, unnum- 
bered, with references to the folios on which the respec- 

1 Ames' Typographical Antiquities is cited as Ames, with a 
specification of the edition. 



Ixx INTRODUCTION. 

tive chapters begin, using for this reference the signa- 
ture at the bottom of the folio. The third page begins : 
*' Tenant en fee simple est celuy/' At the bottom of 
this page is the signature a i. The last page ends with 
this colophon : " Expliciut Tenores novelli Impssi p 
nos lohez lettou <& Willz \ de machlinia % Civitate Lon- 
donia juxta eccaz oim sco" The foregoing is a de- 
scription of the British Museum copy C. 12 i. 9. The 
British Museum copy 2190.1 is bound up with 
" Abrigement des Statutes/' an undated publication by 
the same printers. 

No date. Machlinia. (B. M. ; V. C.) The British 
Museum Catalogue gives 1483 as a doubtful date. The 
volume is a folio. The size of the printed page is 5 by 
7 J inches. The type is a rough black-letter. Chapters 
begin with an illuminated letter, a small letter being 
printed to guide the illuminator. There are no para- 
graphs, but there is much use of a rude paragraph mark. 
There are a few periods, numerous virgils,* and no other 
punctuation. There are some abbreviations. The first 
page is blank. The second page begins : " Incipit tabula 
hujus libri." The table numbers the books, except the 
first, and does not number the chapters. It refers to 
the chapters by folio, using the signature. The third 
page begins : " Tenaunt en fee simple est celuy/' The 

1 An account of the virgil and of the whole contemporaneous 
system of punctuation may be found in an extract from *' Ascen- 
sius Declynsons with the Playne Expositor," given in Johnson *s 
Typographia, vol. I., pp. 800-801. 



INTRODUCTION. Ixxi 

colophon is : '' Expliciunt Tenores novelli Impressi ' \ 
per me Wilhelmu de machlinia in opulen \ tissima 
Civitate Londoniae juxta ponte \ qui vulgariter dicitur 
Flete brigge." This description is based upon the 
British Museum copy. 

No date. William le Tailleur, Rouen. (B. M. j 
C. ; I. T.) The British Museum Catalogue gives 1495 
as a doubtful date ; and Sayle's Early Printed Books in 
the Cambridge University Library, vol. I., p. 31, con- 
jectures 1490. The volume is a folio. The size 
of the printed page is 4f by 7^ inches. The type is a 
small black-letter, resembling modem manuscript, 
and apparently the same with which the same printer 
produced Statham's Abridgment There are spaces 
for illuminating the initial letters of the chapters, but 
no letters to guide the illuminator. There is much use 
of a rough paragraph mark. Periods are common, but 
there is no other punctuation. There are many abbre- 
viations. The first page has the monogram of Richard 
Pynson. The second page is blank. The third page 
begins : " Tenaunt en fee simple est celuy." The colo- 
phon is : '' Expliciunt Tenores novelli Impressi per me \ 
WilhelmH le tailleur in opulentissima civitate \ rotho- 
magensi juxta prioratum sancti laudi ad \ instantiam, 
Richardi pynson.^^ This Rouen or Rohan edition was 
the earliest known by Coke. The foregoing description 
is based upon the British Museum copy. The Cam- 
bridge University copy has on the first page the device 



Ixxii INTRODUCTION. 

of William le Tailleur and on the second page the table 
of contents. The Inner Temple copy has neither table 
of contents nor device. 

No date. No publisher's name. (B.) The Bod- 
leian has simply a fragment containing the first four 
pages. The manuscript catalogue of the Bodleian at- 
tributes this edition to Pynson, before 1500. The 
first page contains a wood cut representing Henry VII. 
with three court;iers on either side of him. The second 
and third pages contain the table of contents, with 
spaces for illuminating initial letters. The fourth 
page is blank. In a letter to the editor, an owner who 
wishes not to be named describes an imperfect copy — 
lacking the last leaf only — that possibly belongs to this 
edition. 

No date. Pynson. (B. M. ; C. ; L. I.) The Brit- 
ish Museum Catalogue gives 1510 as a doubtful date. 
The title-page says " Leteltun teners newe correcte," 
and contains the Henry VII. group. The printed page 
is 5J by 8^ inches. The text is in black-letter. 

1516. Pynson. (B. M. ; B.) The title-page says 
^' Leteltun tenuris new correcte," and it contains a de- 
vice that consists of a Tudor rose supported by two 
angels and surrounded with the motto '' Hec rosa vir- 
tutis de celo missa sereno etemum florens regia sceptra 
feret/' Beneath the device is the royal coat of arms, 
with supporters. The second page contains the Henry 
VII. group. 



INTRODUCTION. Ixxiii 

No date. Pynson. (B. M.) The British Mu- 
seum Catalogue gives 1518 as a doubtful date. Little- 
ton is preceded by a copy of the Old Tenures. Little- 
ton begins with a page containing the Henry VII. group 
and no words. The size of the printed page is as in the 
undated Pynson attributed to 1610. The volume is 
A folio, and the last leaf is Ivii. 

1525. Pynson. (B. ; L. I.) The volume closes 
with the publisher's invective against his rival, Red- 
man, which is reprinted in Ames, 1749 ed., p. 488, 
Herbert's ed., vol. L, pp. 274-275. The Lincoln's Inn 
<*opy lacks the last leaf. 

1526. Pynson. Described in Ames, 1749 ed., p. 

126, and Herbert's ed., vol. L„ p. 275. 

1528. Redman. (B. M.) This edition numbers 
the chapters consecutively from the beginning to the end 
of the volume. 
* 1528. Pynson. Described in Ames, 1749 ed., p. 

127, and Herbert's ed., vol. L, p. 281. 

No date. Redman. (B. M. ; C. ; K ) The British 
Museum Catalogue gives 1530 as a doubtful date and 
describes the volume as an octavo. The title page says : 
^' Lyttylton | tenures newly imprin- | ted." The title- 
page contains the royal arms. The text is printed in 
Roman type. The size of the page, excluding the run- 
ning title, is 2 by 3| inches. The colophon says : " Im- 
prynted at London | by me Robert | Redman. | Cum 
gratia et privilegio \ RegalL 



Ixxiv INTRODUCTION. 

1530. Berthelet. (B. M.; C; B.) 

1534. William Rastell. (B. M. ; H. L. S. ; B. S. L ,- 
K.) This is in the volume sometimes termed Rastell'? 
Twelve Law Tracts, containing Natura Brevium, Old 
Tenures, etc. Ames, 1749 ed., p. 182, says: "It con- 
tains 423 pages, and is the first I have observed to be 
paged." 

1539. No publisher named in the imperfect copy de- 
scribed in Ames, Herbert's ed., vol. III., p. 1551. Pos-^ 
sibly the edition was in English. 

No date. Redman. (B. M., two copies; L. I.; 
L. C.) The British Museum Catalogue gives 1540 as 
a doubtful date and describes the volume as a folio. 
There are two columns to the page. 

1541. Berthelet. (K.) The title-page says both 
1541 and 1534; but 1534 is simply part of the printer's 
device. 

1545. Myddylton. (B. M.). 

1545. Smyth. Described in Ames, 1749 ed., p. 
251, Herbert's ed., vol. II., p. 706, Dibdin's ed., voL 
IV., p. 227. Described also in a letter to the editor 
from an owner who wishes not to be named. 

1553. Powel. (B. M.) 

1554. Tottel. (B. M. ; B. L. S.) The title page 
is in English. 

1557. Tottel. (B. M.; B.; U. C. L.; K) The 
title-pages of the several copies diflFer somewhat, and 
so do the colophons ; but the copies appear to belong ta 
one edition. The differences are explained by the fact 



INTRODUCTION. Ixxv 

that this edition was, as one of the title-pages says: 
^* Compared with divers true wrytten copies, and purged 
of sondry cases, having in some places more then ye 
authour wrote, and lesse in other some." This purging 
— though really requisite — did not please the profes- 
sion, as is indicated by the restoration of the spurious 
passages in subsequent editions ; and the changes in the 
title-page may have been intended to render this feature 
of this edition less prominent. 

1567. Tottil. (B. M.) The title-page calls at- 
tention to the restoration of the spurious passages, which 
are marked by being placed between devices commonly 
called flowers. 

1569. Tottill. (B.;H. L S.) 

1572. Tottill. (B. M; T.C. C.) 

1574. Tottyl. (H. L. S.; K) The title-page 
says 1572, and the colophon 1574. 

1577. Tottyl. (B. M., two copies; B.; L. L; 
I. L. S.) The copies usually have wide margins and 
MS. notes.* 

1579. Tottyl. (B. M.; C; H. L. S.; K) This 
edition is commonly found with wide margins and MS. 
notes. 

1581. Tottel (B. M.) This is the earliest edi- 
tion dividing the text into numbered sections according 
to the system now used. The numbering was by Wil- 
liam West, author of " Symboleography." 

1 It is possible that about 1578 there was an edition by Thomas 
Vautrollier. See Ames, Herbert's ed., vol. II., pp. 777, 1070. 



Ixxvi INTRODUCTION. 

1683. Tottill. (B. M., two copies; B.; I. T.; 
H. L. S., two copies.) This is an edition commonly 
found with wide margins and MS. notes. 

1585. Tottill. (T. H. C.) 

1686. Tottill (V. C.) The title-page says 1585, 
and the colophon 1586. 

1588. Tottell. (B. M.; B.; L. I., three copies; 
G. I. ; II. C.) This is another edition commonly found 
with wide margins and MS. notes. One copy in Lin- 
coln's Inn is interleaved and contains notes that are 
said to have been written by Lord Chancellor Claren- 
don. 

1591. Tottell. (B. M., three copies ; C. ; B. ; L. I. ; 
B. L. S.; II. L. S.) The Bodleian, Lincoln's Inn, 
and Birmingham copies do not contain the name of 
the publisher. 

1594. Charles Yetswert. (B. M. ; K.) In this 
edition the sections of each chapter are numbered sep- 
arately. 

No date. Jane Yetswert. (U. C. L.) The sec- 
tions are numbered as in the immediately preceding edi- 
tion. The date should probably be 1597. 

1599. Thomas Wight and Bonham Norton. (B. M. ; 
II. L. S.) The sections of each chapter are numbered 
separately. 

1604. Wight. (B. M. ; B. ; U. C. L.) This edition 
has wide margins. It restores the common mode of 
numbering the sections, as devised by West. 



INTRODUCTION. Ixxvii 

1608. Companie of Stationers. (B. M., three 
copies; L. I. ; U. C. L. ; H. L. S.) 

1612. Companie of Stationers. (B. M., three 
copies; C. ; T. C. C. ; I. T. ; M. T. ; L. I. ; H. L. S. ; K, 
two copies.) This edition is sometimes found with 
wide margins and MS. notes. 

1617. Companie of Stationers. (B. M., two 
copies ; T. C. C. ; B. ; M. T. ; K, two copies.) 

1621. Companie of Stationers. (T. C. C; I. T.; 
M. T. ; H. C. ; L. C, two copies.) One of the copies 
in the Library of Congress lacks the title-page. 

1639. Assigns of John More. (B. M., two copies; 
B.;K) 

In Law French and Modem French. 

1766. At Rouen, edited by Hoiiard, and entitled 
" Anciennes Loix des Francois," two volumes. (B. M., 
two copies; I. T.; M. T.; B. L. S. ; H. L. S.; H. C.) . 
The British Museum has also an interleaved copy of the 
first volume, bound in five parts, containing Sir William 
Jones' MS. translation of the whole of Littleton, with a 
preface and a title-page (dated 1776). It is known 
that Sir William Jones intended to prepare an edition 
of the Tenures, but desisted in order not to compete 
with Ilargrave's project for a new edition of Coke upon 
Littleton. Jones had just been admitted to the bar, 
was already known as a master of Persian and Arabic, 



Ixxviii INTRODUCTION. 

"but had not yet become the founder of Sanscrit philol- 
ogy nor the author of " Bailments." 

1779. At Rouen, second edition, by Hoiiard, of 
" Anciennes Loix des Frangois," two volumes. (B. M. ; 
€.;B.;L. L;G. I.;H. L. S.) 

In English only} 

No date. Redman. (S. J. C.) The title-page says: 
■" Lyttelton | tenures in | Englysshe." The title-page 
contains the royal coat of arms. The colophon says: 
^' Imprynted at London | in Fletestrete, by me Robert | 
Redman, dwellynge at the | sygne of the George, | nexte 
to Saynt | Duustones | churche." This edition may 
be the one against which was directed the invective in 
Pynson's 1525 Law French edition. 

No dBte. John Rastell. Described in Ames, 1749 
^d., p. 148, Herbert's ed., vol. I., p. 342, Debdin's ed., 
Tol. III., p. 109. 

1528. John Rastell. Described in Ames, 1749 ed., 
p. 146, Herbert's ed., vol. I., p. 333, Debdin's ed., vol. 
IIL, p. 91. Possibly this edition was in Law FrencL 

1538. Berthelet. (B. M.) 

No date. Wyer. Described in Ames, 1749 ed., 
p. 157, Herbert's ed., vol. I., p. 376, Dibdin's ed., vol. 
IIL, p. 187. 

1 The recent editions of Co. Lit., beginning with the seven- 
teenth, might properly be included in this part of the list. 



INTRODUCTION. Ixxix 

No date. Petyt. (B. M. ; T. C. C. ; K.) The British 
Museum Catalogue gives 1544 as a doubtful date. The 
title-page says : " Lyttelton | tenures in En | glyshe." 
The title-page contains the royal arms, very rudely de- 
signed. The whole book is in black-letter. The colo- 
phon says : " Prynted at london in | paules churche 
yearde at | the sygne of the may- | dens heed, by Tho- 1 
mas Petyt." 

.1544. Myddylton. (B.) 

1545. No publisher named. (S. J. C.) The 
title-page says: "Lytjtilton | tenures | truely trans- 
lated in I to englyshe | an. M. D. XL. V." The title 
is inclosed in an elaborate device of columns and sym- 
bolical figures, containing the date 1534. The pub- 
lisher was probably Myddylton. 

1546. No publisher named. Described in a letter 
to the editor from an owner who wishes to remain 
anonymous. 

1548. Powell. (B. M. ; C.) The Cambridge 
University copy lacks the last leaf. The title-page con- 
tains Myddylton's device. 

1551. Powell. Described in Ames, Herbert's ed., 
vol. II., p. 737. 

1556. Marshe. (B. M.) 

1556. No publisher named. (K.) The text is in 
black-letter, poorly printed. The title-page is " Lyt- | 
tilton te- I nvres. | truly translated into | Englishe.| ? 
1 Anno domini. | M. D. L. VI." 



]xxx INTRODUCTION. 

1556. Tottle. (B. M.) 

No date. No name of publisher. (B. M.) The 
British Museum Catalogue gives 1560 as a doubtful 
date. The book is poorly printed in black-letter. The 
title-page is : " Little- | ton Tenures | in Englishe. | 
Cum privilegio ad im- \ primendum solum/' The 
volume closes on folio 142, thus : " barre ye heire with- | 
out the war- | rante, etc. | Finis." Possibly a copy 
without a title-page, found in the library of George 
Browne, Esq., Troutbeck, Windermere, by Charles 
Sayle, Esq., of the Cambridge University Library, be- 
longs to this edition. 

1572. Tottyl. (B. L. S.) 

1574. Tottyl. (K.) 

1576. Tottyl. (L. L ; H. L. S. ; K) 

1581. Tottel. (T. C. C. ; T. H. C.) 

1583. Totill. (IL L. S.; K.) 

1586. Tottill. (B. M. ; B.) In the Bodleian copy 
the name is spelled Tottle. 

1593. Tottill. (K.) The title-page says 1592, 
and the colophon 1593. 

1594. Charles Yetsweirt. (B. M.) 



1597. 


Jane Yetsweirt. (B. M.) 


1600. 


Wight. (B. M.; C; I. L. S.) 


1C04. 


Wight. (B.;L. I.) 


1608. 


Companie of Stationers. (S. J. C. ; B. ; 


;. L. S. 


) 


1612. 


Companie of Stationers. (B. M. ; IL C.) 



INTRODUCTION. Ixxxi 

1616. Companie of Stationers. (B. P. L.) 
1621. Companie of Stationers. (B. M. ; K.) 
1627. Companie of Stationers. (B. M. ; S. J. C. ; 

B.; H. L. S.; K) 

1656. Company of Stationers. (B. M.; S. J. C; 

H. L. S.) 

1661. Company of Stationers. (H. L. S. ; K.) 
1813. W. Clarke & Sons. (U. C. L.; II. L. S., 

two copies; K.) This is the earliest edition in English 

having the sections numbered. 
' 1825. J. & W. T. Clarke. (H. L. S.) 
1825. Henry Butterworth. (B. M.; I. T.; K.) 
1829. Saunders & Bennings. (B. M.; C; B. ; 

I. T. ; M. T. ; L. I. ; G. I. ; U. C. L. ; B. L. S. ; H. L. S. ; 

L. C.) This is an edition by Cary, with an anonymous 

commentary which antedates Coke. 

1831. J. & W. T. Clarke. (U. C. L. ; H. L. S.) 
1845. V. &. R. Stevens and G. S. Norton. (Bill. ; 

B.;B. L. S.;H. L. S.;L. C.;K) 

In both Law French and English.^ 

1671. John Streater, James Flesher, and Henry 
Twyford. (B. M. ; L. I. ; I. L. S. ; U. C. L. ; H. L. S. ; 
K.) 

1841. S. Sweet. (B. M. ; B. ; A. S. ; I. T. ; M. T. ; 
L. T. ; U. C.L. ; B. L. S. ; II. L. S. ; H. C. ; L. C. ; K) 

1 To tills part of the list mij^ht properly be added the earlier 
editions of Coke upon Littleton, closing with tlie sixteenth. 

6 



Ixxxii INTRODUCTION. 

This edition was edited by T. E. Tomlins, and contains 
a revised Law French text and a revised translation. 

Coke upon Littleton} 

1628. First edition. (B. M., three copies; C. ; B. ; 
L. I.; H. L. S.) This edition regularly contains no 
portraits, but some of the copies have apparently been 
enlarged by the addition of portraits prepared for the 
second edition. 

1629. Second edition. (B. M.; B.; L. L, two 
copies; I. L. S. ; H. L. S.) This edition contains a por- 
trait of Coke, dated 1629, and a portrait of Littleton. 

1633 Third edition. (B. M. ; B. ; M. T. ; G. L ; B. 

P. L.) 

1639. Fourth edition. (C. ; H. L. S.) 

1656. Fifth edition. (B. M. ; C. ; H. L. S.) The 

British Museum copy has MS. notes by Hargrave. 
1664. Sixth edition. (B. M. ; U. C. L. ; H. L. S.) 
1670. Seventh edition. (B. M., four copies; U. C. 

L. ; H. L. S. ; H. C.) In this edition the portrait of 

Coke is dated 1670. 

1670. Eighth edition. (B. M., three copies; C. ; 

B. P. L.) The British Museum has also an incomplete 

copy that contains MS. notes by Hargrave. 

^ This list contains only such editions of Coke upon Littleton 
as can properly be termed editions of the Tenures. Consequently 
it omits the mere abridgments of Coke's commentary attributed 
to Davenport, Hawkins, and others, and also Coventry's 1830 
edition, which omits a considerable part of both Coke and Lit- 
tleton. 



INTRODUCTION. Ixxxiii 

1684. Ninth edition. (B. M.; L. I.) In this 
edition appears a new portrait of Coke. 

1703. Tenth edition. (B. M.) 

1719. Eleventh edition. (B. M.; I. T.; M. T.; 
H. L. S.) This edition contains the Old Tenures. 

1738. Twelfth edition. (B. M.; B.; H. L. S.) 
This edition contains the Old Tenures. 

1788. Thirteenth edition. (B. M. ; C. ; B. ; I. T. ; 
I. L. S. ; H. L. S., two copies.) This is the first edi- 
tion containing the notes by Hargrave and Butler. It 
appeared in parts. Some copies, e. g., the Incorpo- 
rated Law Society copy and one of the Harvard Law 
School copies, contain a title-page prepared for the 
early parts and dated 1775. The British Museum has 
also an incomplete copy that contains MS. notes by Har- 
grave and announcements as to the inception and prog- 
ress of the work. 

1789. Fourteenth edition. (B. M. ; G. I. ; I. L. S. ; 
U. C. L.; H. L. S.) 

1791. Dublin reprint of fourteenth edition. (H. 
L. S.) 

1794. Fifteenth edition, three volumes. (B. M. ; 
C.;B.;L.L;LL.S.;U.C.L.;B.L.S.;H. L. S. ; B. 
P. L.) 

1809. Sixteenth edition, three volumes. (B. M. ; 
LL. S.;H. L. S.;B. P. L.) 

1812. Philadelphia reprint, edited by Day, of the 
sixteenth edition, three volumes. (H. L. S. ; L. C. ; B. 



Ixxxiv INTRODUCTION. 

P. L.) This is the last edition containing both Law 
French and English. 

1817. Seventeenth edition, two volumes. (C. ; B. ; 
H. L. S.) 

1818. Thomas' edition, three volumes. (B. M. ; 
B. ; I. T. ; L. I. ; I. L. S. ; B. L. S. ; H. L. S.) This 
edition rearranges both Littleton and Coke. 

1823. Eighteenth edition, two volumes. (B. M. ; 
C.;B.;H. L. S.; B. P. L.) 

1827. Philadelphia reprint of Thomas' edition, 
three volumes. (L. C.) 

1832. Nineteenth edition, two volumes. (I. T. ; 
M. T.; L. L; G. L; B. L. S.; H. L. S.; H. C.) 

1836. Philadelphia reprint of Thomas' edition, 
three volumes. Described in New York City Bar Asso- 
ciation Catalogue. 

1853. Philadelphia reprint, edited by Day, of nine- 
teenth edition, two volumes. (H. C.) 



■8 5 5- . 

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2 I Mil ^ I 

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o 

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>Thi8 diagram is Dot the work of Littleton ; but, with ohanges from time 
to time, it has appeared In almost all editions. 




THE TENURES. 



BOOK THE FIKST. 
CHAPTER L 

FEE SIMPLE. 

§ 1. Tenant in fee simple is he which hath lands or 
tenements to hold to him and his heirs forever. And 
it is called in Latin feodum^ simplex^ for feodum is the 
same that inheritance is, and simplex is as much as to 
say, lawful or pure. And so feodum simplex signifies a 
lawful or pure inheritance. For if a man would pur- 
chase 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 heirs: for these words, his 
heirs, make the estate of 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 assigns for ever; in these two 
cases he hath but an estate for term of life, for that 
there lack these words, his heirs, which words only 
make an estate of inheritance in all feoffments and 
grants. 

^ In the earliest French edition, that of Lettou and Machlinia, 
this word is speUed '^feudum,'' 



2 ./'V FEE SIMPLE. [BookL 

'*-§ 2/ And if a man purchase land in fee simple and 
*di6''withoat issue, be which is his next cousin collateral 
•■of the whole blood, how far so ever be be from bina ia 
degree, may inherit and have the land as heir to him. 

§ 3. But if there be father and son, and the father 
bath a brother that is uncle to the son, and the son 
purchase land in fee simple, and die without issue, liv- 
ing his father, the uncle shall have the land as heir to 
the son, and not the father, yet the father is nearer of 
blood ; because it is a maxim in law that inheritance 
may [lineally]^ descend, but not ascend. Yet if the son 
in this case die without issue, and his uncle enter into 
the land as heir to the son, (as by law he ought,) and 
after ^ the uncle dieth without issue, living the father, 
the father shall have the land as heir to the uncle, and 
not as heir to his son, for that he cometh to the land 
by collateral descent, and not by lineal ascent. 

§ 4. And in case where the son purchaseth land in 
fee simple, and dies without issue, they of his blood on 
the father's side shall inherit as heirs to him, before 
any of the blood on the mother's side : but, if he hath 
no heir on the part of his father, then the land shall de- 
scend to the heirs on the part of the mother.^ But, if a 

1 Throughout this edition brackets in the text indicate that ac- 
cording to the best Frencli texts the inclosed words are spurious. 

^ J. e. afterwards. 

» In some of the later French texts there is here inserted the 
following passage : — 

*' And this was the opinion of all the justices, M. 12 E. IV. But 
it was there held, if land descend to a man on the part of his 
father, who dies without issue, that his next heir, on the part of 



Chap. I.] FEE SIMPLE. 8 

man raarrieth an inheritrix of lands in fee simple, 
who hath issue a son, and die, and the son enter into 
the tenements, as son and heir to his mother, and after 
dies without issue, the heirs of the part of his mother 
ought to inherit, and not the heirs of the part of the 
father. And, if he hath no heir on the part of the 
mother, then the lord, of whom the land is hcflden, 
shall have the land by escheat. [In the same manner 
it is, if lands descend to the son of the part of the 
father, and he entereth, and afterwards dies without 
issue, this land shall descend to the heirs on the part 
of the father, and not to the heirs on the part of the 
mother. And if there be no heir of the part of the 
father, the lord of whom the land is holden, shall have 
the land by escheat.] And so see the diversity, where 
the son purchaseth lands or tenements in fee simple, 
and where he cometh to them by descent on the part 
of his mother, or on the part of his father. 

§ 5. Also if there be three brethren, and the middle 
brother purchaseth lands in fee simple, and die with- 
out issue, the elder brother shall have the land by de- 

his father, shall inherit to him, that is to wit, the next who is 
of the blood of tlie father on the part of the father of the father : 
and for default of such heir, those who are of the blood of the 
father on the part of the mother of the father, viz. the grand- 
mother, shall inherit. And if there is no such heir on the part 
of the father, then the lord shall have the land by escheat." 

Coke does not print this interpolation ; and Hargrave and 
Butler's notes to CJoke upon Littleton say of it : ** But this passage 
is not in any edition prior to Redman's, and seems an addition 
to Littleton by another hand, and to be an opinion extracted 
from 12 E. IV. 14, pi. 12, which is indeed cited in the margin of 
Redman.'* 



4 FEE SIMPLE. Book I 

scent and not the younger, &c. And also if there be 
three brethren, and the youngest purchase lands in fee 
simple, and die without issue, the eldest brother shall 
have the land by descent and not the middle, for that 
the eldest is most worthy of blood. 

§ 6. Also, it is to be understood, that none shall have 
land of fee simple by descent as heir to any man, un- 
less he be his heir of the whole blood. For if a man 
hath issue two sons by divers venters, and the elder 
purchase lands in fee simple, and die without issue, the 
j^ounger brother shall not have the land, but the uncle 
of the elder brother, or some other his next cousin shall 
have the same because the younger brother is but of 
half blood to the elder. 

§ 7. And if a man hath issue a son and a daughter 
by one venter, and a son by another venter, and the son 
of the first venter purchase lands in fee and die without 
issue, the sister shall have the land by descent, as heir 
[to her brother,] and not the younger brother, for that 
the sister is of the whole blood of her elder brother. 

§ 8. And also, where a man is seised of lands in fee 
simple, and hath issue a son and daughter by one venter, 
and a son by another venter, and die, and the eldest son 
enter, and die without issue, the daughter shall have the 
land, and not the younger son, yet the younger son is 
heir to the father, but not to his brother. But if the 
elder son doth not enter into the land after the death of 
his father, but die before any entry made by him, then 



Chap. I.] FEE SIMPLE. 5 

the younger brother may enter, and shall have the land 
as heir to his father. But where the elder son in the case 
aforesaid enters after the death of his father, and hath 
possession, there the sister shall have the land, because 
possessio fratris de feodo simplici facit sororem esse 
hcBvedem, But if there be two brothers by divers ven- 
ters, and the elder is seised of land in fee, and die with- 
out issue, [and his uncle enter as next heir to him, who 
also dies without issue,] now the younger brother may 
have the land as heir to the uncle, for that he is of the 
whole blood to him, albeit he be but of the half blood to 
his elder brother, 

§ 9. And it is to wit, that this word (inheritance) is 
not only intended where a man hath lands or tenements 
by descent of inheritage, but also every fee simple [or 
tail] which a man hath by his purchase may be said an 
inheritance, because his heirs may inherit him. For in 
a writ of right which a man bringeth of land that was of 
his own purchase, the writ shall say, quam clamat esse 
jus et hcereditatem suam. And so shall it be said in 
divers other writs which a man or woman bringeth of 
his own purchase, as appears by the Register. 

§ 10. And of such things, whereof a man may have 
a manual occupation, possession, or receipt, as of lands, 
tenements, rents, and such like, there a man shall say in 
his count countant, and plea pleadant, that such a one 
was seised in his demesne as of fee. But of such things, 
which do not lie in such manual occupation, &c., as of 



6 F£E SIMPLE. [Book L 

an advowson of a church and such like, there he shall 
say, that he was seised as of fee, and not in his demesne 
as of fee. And in Latin it is in one case, quod talis seisi- 
tus fuit in dominico suo ut de feodo, and in the other 
case, quod talis seisitv^ fuit, &c., ut de feodo, 

§ 11. And note, that a man cannot have a more large 
or greater e$tate of^ inheritance than fee simple. 

§ 12. Also, purchase is called the possession of lands 
or tenements that a man hath by his deed or agreement, 
unto which possession he cometh not by title of descent 
from any of his ancestors, or of his cousins, but by his 
own deed. 

^ Instead of ** of," the best French texts authorize ** or." 



CHAPTER II. 

FEE TAIL. 

§ 13. Tenant in fee tail is by force of the statute of 
Westminster II.,* cap, 1 ; for before the said statute, all 
inheritances were fee «imple ; for all the gifts which be 
specified in that statute were fee simple conditional at 
the common law, as appeareth by the rehearsal of the 
same statute. And now by this statute, tenant in tail is 
in two manners, that is to say, tenant in tail general, 
and tenant in tail special. 

§ 14. Tenant in tail general, is where lands or tene- 
ments are given to a man, and to his heirs of his 
body begotten. In this case it is said general tail, be- 
cause whatsoever woman, that such tenant taketh to 
wife, (if he hath many wives, and by every of them 
hath issue,) yet every one of these issues by possibility 
may inherit the tenements by force of the gift, because 
that every such issue is of his body engendered. 

§ 15. In the same manner it is, where lands or tene- 
ments are given to a woman, and to the heirs of her 
body ; albeit that she hath divers husbands, yet the issue, 

MS E.I. ri285). 



8 FEE TAIL. [Book L 

which she may have by every husband, may inherit as 
issue in tail by force of this gift; and therefore such 
gifts are called general tails. 

§ 16. Tenant in tail special, is where lands or tene- 
ments are given to a man and to his wife, and to the 
heirs of their two bodies begotten. In this case none 
shall inherit by force of this gift, but those that be en- 
gendered between them two. And it is called especial 
tail, because if the wife die, and he taketh another wife, 
and have issue, the issue of the second wife shall not 
inherit by force of this gift, nor also the issue of the 
second husband, if the first husband die. 

§ 17. In the same manner it is, where tenements are 
given by one man to another, with a wife (which is the 
daughter or cousin to the giver) in frankmarriage, the 
which gift hath an inheritance by these words (frank- 
marriage) annexed unto it, although it be not expressly 
said or rehearsed in the gift (that is to say) that the 
donees shall have the tenements to them and to their 
heirs between them two begotten. And this is called 
especial tail, because the issue of the second wife may 
not inherit. 

§ 18. And note, that this word (talliare) is the same 
as to set to some certainty, or to limit to some certain 
inheritance. And for that it is limited and put in cer- 
tain, what issue shall inherit by force of such gifts, and 
how long the inheritance shall endure, it is called in 
Latin, feodum talliatum, i. e. hcereditas in quondam cer- 



Chap. II.] FEE TAIL. 9 

titudinem limitata. Fdr if tenant in general tail dieth 
without issue, the donor or his heirs may enter as in 
their reversion. 

§ 19. In the same manner it is of the tenant in 
especial tail, etc. For in every gift in tail without more 
saying, the reversion of the fee simple is in the donor. 
And the donees and their issue shall do to the donor, and 
to his heirs, the like services as the donor doth to his lord 
next paramount, except the donees in frankmarriage, 
who shall hold quietly from all manner of service (un- 
less it be for fealty) until the fourth degree is past, and 
after the fourth degree is past, the issue in the fifth 
degree, and so forth the other issues after him, shall 
hold of the donor or of his heirs as they hold over, as 
before is said. 

§ 20. And the degrees in frankmarriage shall be ac- 
counted in this manner, viz. from the donor to the 
donees in frankmarriage the first degree, because the 
wife that is one of the donees ought to be daughter, 
sister, or other cousin to the donor ; and from the donees 
unto their issue shall be accounted the second degree, 
and from their issue unto their issue the third degree, 
and so forth. And the reason is, because that after 
every such gift, the issues of the donor, and the issues 
of the donees after the fourth degree past of both parties 
in such form to be accounted, may, by the law of the 
holy church, intermarry. And that the donee in frank- 
marriage shall be said to be the first degree of the four 



10 F£E TAIL. [Book I 

degrees, a man may see in a plea upon a writ of right of 
ward, P. 31 E. III., where the plaintiff pleadeth that 
his great grandfather was seised of certain lands,^ etc., 
and held the same of another by knight's service, etc., 
who gave the land to one Raphe Holland with his sister 
in frankmarriage, &c. 

§ 21. And all these entails aforesaid be specified in 
the said statute of Westminster II. Also there be divers 
other estates in tail, though they be not by express words 
specified in the said statute, but they are taken, by the 
equity of the same statute. As if lands be given to a 
man, and to his heirs males of his body begotten ; in this 
case his issue male shall inherit, and the issue female 
shall never inherit, and yet in the other entails afore- 
said it is otherwise. 

§ 22. In the same manner it is, if lands or tenements 
be given to a man and to his heirs females of his body 
begotten ; in this case his issue female shall inherit by 
force and form of the said gift, and not his issue male. 
. For in such cases of gifts in tail, the will of the donor 
ought to be observed, who ought to inherit, and who not. 

§ 23. And in case where lands or tenements be given 
to a man, and to the heirs males of his body, and he hath 
issue two sons, and dieth, and the eldest son enter as heir 
male, and hath issue a daughter, and dieth, his brother 
shall have the land, and not the daughter, for that the 
brother is heir male. But otherwise it is in the other 
entails, which are specified in the said statute. 

§ 24. Also, if lands be given to a man and to the 



Chap. II.] FEE TAIL. H 

heirs males of his body, and he hath issue a daughter, 
who hath issue a son, and dieth, and after the donee die ; 
in this case, the son of the daughter shall not inherit by 
force of the entail ; because whosoever shall inherit by 
force of a gift in tail made to the heirs males, ought to 
convey his descent wholly by the heirs males. Also in 
this case the donor may enter, for that the donee is dead 
without issue male in the law, insomuch as the issue of 
the daughter cannot convey to himself the descent by 
an heir male. 

§ 25. In the same manner it is, where lands are 
given to a man and his wife, and to the heirs males of 
their two bodies begotten, &c. 

§ 26. Also, if tenements be given to a man and to his 
wife, and to the heirs of the body of the man, in this 
case the husband hath an estate in general tail, and the 
wife but an estate for term of life. 

§ 27. Also, if lands be given to the husband and 
wife, and to the heirs of the husband which he shall 
beget on the body of his wife, in this case the husband 
hath an estate in especial tail, and the wife but an 
estate for life. 

§ 28. Arid if the gift be made to the husband and to 
his wife, and to the heirs of the body of the wife by the 
husband begotten, there the wife hath an estate in 
special tail, and the husband but for term of life. But 
if lands be given to the husband and the wife, and to the 
heirs which the husband shall beget on the body of the 
wife, in this case both of them have an estate tail, be- 



12 FEE TAIL. [Book L 

cause this word (heirs) is not limited to the one more 
than to the other. ^ 

§ 29. Also, if land be given to a man and to his heirs 
which he shall beget on the body of his wife, in this case 
the husband hath an estate in especial tail, and the wife 
hath nothing. 

§ 30. Also, if a man hath issue a son and dieth, and 
land is given to the son, and to the heirs of the body of 
his father begotten, this is a good entail, and yet the 
father was dead at the time of the gift. And there be 
many other estates in the tail, by the equity of the said 
statute, which be not here specified. 

§ 31. But if a man give lands or tenements to an- 
other, to have and to hold to him and to his heirs males, 
or to his heirs females, he, to whom such a gift is made, 
hath a fee simple, because it is not limited by the gift, of 
what body the issue male or female shall be, and so it 
cannot in any wise be taken by the equity of the said 
statute, and therefore he hath a fee simple. 

^In Lettou and Machlinia's edition, but not in other early 
editions, the following passage is added : — 

*' And they have, in such ease, the same estate as where lands 
were given to them and the heirs of the two bodies begotten.' 



CHAPTER III. 

TENANT IN TAIL AFTER POSSIBILITY, ETC. 

§ 32. Tenant in fee tail after possibility of issue 
extinct is, where tenements are given to a man and to 
his wife in especial tail, if one of them die without 
issue, the survivor is tenant in tail after possibility of 
issue extinct. And if they have issue, and the one die, 
albeit that during the life of the issue, the survivor shall 
not be said tenant in tail after possibility of issue ex- 
tinct ; yet if the issue die without issue, so as there be 
not any issue alive which may inherit by force of the 
tail, then the surviving party of the donees is tenant in 
tail after possibility of issue extinct. 

§ 33. Also, if tenements be given to a man and to his 
heirs which he shall beget on the body of his wife, in 
this case the wife hath nothing in the tenements, and the 
husband is seised as donee in especial tail. And in this 
case, if the wife die without issue of her body begotten 
by her husband, then the husband is tenant in tail after 
possibility of issue extinct. 

§ 34. And note, that none can be tenant in tail after 

13 



14 TENANT IN TAIL AFTER POSSIBILITY. ETC. [Book L 

possibility of issue extinct, but one of the donees, or the 
donee in especial tail. For the donee in general tail can- 
not be said to be tenant in tail after possibility of issue 
extinct ; because always during his life, he may by pos- 
sibility have issue which may inherit by force of the 
same entail. And so in the same manner the issue, which 
is heir to the donees in especial tail, cannot be tenant in 
tail after possibility of issue extinct, for the reason 
abovesaid. 

[And note, that tenant in tail after possibility of issue 
extinct shall not be punished of waste, for the inheri- 
tance that once was in him, 10 H. VI., 1. But he in the 
reversion may enter if he alien in fee, 45 E. III., 22.]* 

* Coke says : ** Not in the edition (which I have). And'there- 
fore (that I may speak it once for all), it was wron^ to the author 
to add anything (especially in one context) to his work." 



CHAPTER IV. 



CUBTESY OF ENGLAND. 



§ 35. Tenant by the curtesy of England is where a 
man taketh a wife seised in fee simple, or in fee tail 
general, or seised as heir in tail especial, and hath issue 
by the same wife, male or female born alive, albeit the 
issue after^ dieth or liveth, yet if the wife dies, the hus- 
band shall hold the land during his life by the law of 
England. And he is called tenant by the curtesy of 
England, because this is used in no other realm but in 
England only. 

And some have said, that he shall not be tenant by the 
curtesy, unless the child, which he hath by his wife, be 
heard cry ; for by the cry it is proved that the child was 
born alive. Therefore qusere. 

1 /. e, afterwards. 



15 



CHAPTER V. 



DO WEE. 



§ 36. Tenant in dower is where a man is seised of 
certain lands or tenements in fee simple, fee tail general, 
or as heir in special tail, and taketh a wife, and dieth, 
the wife, after the decease of her husband, shall be en- 
dowed of the third part of such lands and tenements as 
were her husband's at any time during the coverture, to 
have and to hold to the same wife in severalty, by metes 
and bounds, for term of her life, whether she hath issue 
by her husband or no, and of what age soever the wife 
be, so as she be past the age of nine years at the time of 
the death of her husband, [for she must be above nine 
years old at the time of the decease of her husband,] 
otherwise she shall not be endowed. 

§ 37. And note, that by the common law the wife 
shall have for her dower but the third part of the tene- 
ments which were her husband's during the espousals; 
but by the custom of some county, she shall have the 
half, and by the custom in some town or borough, she 
shall have the whole ; and in all these cases she shall be 
called tenant in dower. 

16 



Chap. V.] DOWER. 17 

§ 38. Also, there be two other kinds of dower, viz. 
dower which is called dowment at the church door, and 
dower called dowment by the father's assent. 

§ 39. Dowment at the church door is, where a man 
of full age seised in fee simple, who shall be married to 
a woman, and when he cometh to the church door to be 
married, there, after affiance and troth plighted between 
them, he endoweth the woman of his whole Und, or of 
the half, or other lesser part thereof, and there openly 
doth declare the quantity and the certainty of the land 
which she shall have for her dower. In this case the 
wife, after the death of the husband, may enter into the 
said quantity of land of which her husband endowed her, 
without other assignment of any. 

§ 40. Dowment by assent of the father is, where the 
father- is seised of tenements in fee, and his son and heir 
apparent, when he is married, endoweth his wife at the 
monastery or church door, of parcel of his father's lands 
or tenements with the assent of his father, and assigns 
the quantity and parcels. In this case, after the death 
of the son, the wife shall enter into the same parcel with- 
out the assignment of any. But it hath been said in this 
case, that it behoveth the wife to have a deed of the 
father to prove hie- assent and consent to this endow- 
ment. [M. 44E. Hi., f. 45.]* 

^Coke says : ** And here it is not well done (of him that made 
the addition to our author) to vouch 44 E. III., fo. 45, because 
tfao author himself vouched it not ; for if he meant to have 
vouched authorities, he would have vouched more than one in 



18 DOWER. [Book I. 

§ 41. And if, after the death of her husband, she 
entereth, and agree to any such dower of the said dowers 
at the church door, &c., then she is concluded to claim 
any other dower by the common law of any the lands or 
tenements which were her husband's. But if she will, 
she may refuse such dower at the church door, &c., and 
then she may be endowed after the course of the com- 
mon law. 

§ 42. And note, that no wife shall be endowed, ex 
assensu patris in form aforesaid, but where her husband 
is son and heir apparent to his father. Qucere of these 
two cases of dowment ad ostium ecclesice, &c,, if the 
wife, at the time of the death of her husband, be not 
past the age of nine years, whether she shall have dower 
or no. 

§ 43. And note, that in all cases where the certainty 
appeareth what lands or tenements the wife shall have 
for her dower, there the wife may enter, after the death 
of her husband, without assignment of any. But where 
the certainty appears not, as to be endowed of the third 
part, to have in severalty, or the moiety according to the 
custom, to hold in severalty, in such cases it behoveth 
that her dower be assigned unto her after the death of 
her husband ; because it doth not appear before assign- 
ment what part of the lands or tenements she shall have 
for her dower. 

this case, and those tha^ he vouched he would have cited truly : 
but this case is mistaken both in the year and in the leaf, for 
whereas it is cited in 44 E. III., it is in 40 E. Ill, and whereas 
he sailh it is fo. 45, it is fo. 48." 



Chap. V.] DOWER. 19 

§ 44. But if there be two joint tenants of certain 
land in fee, and the one alieneth that which belongeth 
to him, to another in fee, who taketh a wife, and after 
dieth ; in this case the wife for her dower shall have the 
third part of the moiety which her husband purchased, 
to hold in common (as her part amounteth) with thfe 
heir of her husband, and with the other joint tenant, 
which did not alien ; for that in this case her dower can- 
not be assigned by metes and bounds. 

§ 45. And it is to be understood, that the wife shall 
not be endowed of lands or tenements which her hus- 
band holdeth jointly with another at the time of his 
death ; but where he holdeth in common, otherwise it is, 
as in the case next abovesaid. 

§ 46. And it is to be understood, that if tenant in 
tail endoweth his wife at the church door, as is afore- 
said, this shall little or nothing at all avail the wife ; for 
that, that after the decease of her husband, the issue in 
tail may enter upon her possession; and so may he in 
the reversion, if there be no issue in tail then alive. 

§ 47. Also, if a man seised in fee simple, being with- 
in age, endoweth his wife at the monastery or church 
door, and dieth, and his wife enter, in this case the heir 
of the husband may out her. But otherwise it is (as it 
seemeth) where the father is seised in fee, and the son 
within age endoweth his wife ex assensu patris, the 
father being then of full age. 

§ 48. Also, there is another dower, which is called 
dowment de la pluis beale. And this is in case where a 



20 DOWER. [Book I. 

man is seised of forty acres of land, and he holdeth 
twenty acres of the said forty acres, of one, by knight's 
service, and the other twenty acres, of another, in socage, 
and taketh wife^ and hath issue a son, and dieth, his son 
being within the age of fourteen years, and the lord of 
ivhom the land is holden by knight's service entereth 
into the twenty acres holden of him, and holdeth them 
4is guardian in chivalry during the nonage of the infant, 
And the mother of the infant entereth into the residue, 
snd occupieth it as guardian in socage; if in this case 
the wife bringeth a writ of dower against the guardian 
in chivalry, to be endowed of the tenements holden by 
knight's service, in the king's court, or other court, the 
^guardian in chivalry may plead in such case all this 
matter, and shew how the wife is guardian in socage, as 
aforesaid; and pray that it may be adjudged by the 
court, that the wife may endow herself de la pluis beale, 
i. e. of the most fair of the tenements which she hath as 
guardian in socage, after the value of the third part 
which she claims by her writ of dower, to have the tene- 
ments holden by knight's service. And if the wife can- 
not gainsay this, then the judgment shall be given, that 
the guardian in chivalry shall hold the lands holden of 
him during the nonage of the infant, quit from the 
woman, &c.* 

§ 49. And note, that after such a judgment given, 

^ Some of the earliest French texts add : ** and that the wife 
may endow herself of the fairest part of the lands which she 
hath as guardian in socage, after the value, &c.** 



Chap. V.] DOWER. 21 

the wife may take her neighbours, and in their presence 
endow herself by metes and bounds of the fairest part of 
the tenements which she hath as guardian in socage/ to 
have and to hold to her for term of her life: and this 
dower is called dower de la pluis beale. 

§ 50. And note, that such dowment cannot be, but 
where a judgment is given in- the king's court, or in 
some other court, &c.,^ and this is for the preservation 
of the estate of the guardian in chivalry during the 
nonage of the infant. 

§ 51. And so you may see five kinds of dower, viz. 
dower by the common law, dower by the custom, dower 
ad ostium ecclesioe, dower ex oMensu patris, and dower 
de la pluis beale. 

§ 52. And memorandum, that in every case where a 
man taketh a wife seised of such an estate of tenements, 
&c. as the issue, which he hath by his wife, may by pos- 
sibility inherit the same tenements of such an estate as 
the wife hath, as heir to the wife ; in this case, after the 
decease of the wife, he shall have the same tenements by 
the curtesy of England, but otherwise not. 

§ 53. And also, in every case where a woman taketh 
a husband seized of such an estate in tenements, &c., so 

1 ^ to the value of the'third part of the tenements which the 
guardian in chivalry hath, &c. }- 

Throughout this edition braces in the foot-notes indicate that 
according to the best French texts the inclosed words ought to 
be inserted. 

««{ that the wife can do this ; }- 



22 DOWER. [Book I. 

as by possibility it may happen that the wife may have 
issue by her husband, and that the same issue may by 
possibility inherit the same tenements of such an estate 
as the husband hath, as heir to the husband, of such 
tenements she shall have her dower, and otherwise not. 
For if tenements be given to a man, and to the heirs 
which he shall beget of the body of his wife, in this case 
the wife hath nothing in the tenements, and the husband 
hath an estate but as donee in special tail. Yet if the 
husband die without issue, the same wife shall be en- 
dowed of the same tenements ; because the issue, which 
she by possibility might have had by the same husband, 
might have inherited the same tenements. But if the 
wife dieth, leaving her husband, and after the husband 
takes another wife, and dieth, his second wife shall not 
be endowed in this case, for the reason aforesaid. 

§ 54. [Note, if a man be seised of certain lands, and 
taketh wife, and after alieneth the same land with war- 
ranty, and after the feoffor and feoffee die, and the wife 
of the feoffor bring an action of dower against the issue 
of the feoffee, and he vouch the heir of the feoffor, and 
hanging the voucher and undetermined, the wife of the 
feoffee brings her action of dower against the heir of the 
feoffee, and demand the third part of that whereof her 
husband was seised, and will not demand the third part 
of these two parts of which her husband was seised ; it 
was adjudged, that she should have no judgment until 
such time as the other plea were determined.]* 
iCoke says: "You may easily perceive by the context that 



CHAP. V.J DOWER. 23 

§ 55. [And note, Va visor saith, that if a man be 
seised of land and eommitteth felony, and after alieneth, 
and after is attaint, the wife shall have a good action of 
dower against the feoffee ; but if it be escheated to the 
king, or to the lord, she shall not have a writ of dower. 
And so see the difference, and inquire what the law is 
herein.]^ 

this shaft came never out of Littleton's quiver of choice arrows." 
Hargrave and Butler's notes say : '* It appears to have been first 
added in the edition hj Pynson." 

*Coke says: "This is also of the new addition.'' Hargrave 
and Butler's not«8 say that it is in Pjmaon and the subsequent 
editions. 



CHAPTEE VL 

TENANT FOB LIFE. 

§ 56. Tenant for term of life, is where a man letteth 
lands or tenements to another for term of the life of the 
lessee, or for term of the life of another man. In this 
ease the lessee is tenant for term of life. But by com- 
mon speech, he which holdeth for term of his own life, 
is called tenant for term of his life; and he which 
holdeth for term of another's life, is called tenant for 
term of another man's life. 

§ 57. And it is to be understood, that there is feoffor 
and feoffee, donor and donee, lessor and lessee. Feoffor 
is properly where a man enfeoffs another in any lands 
or tenements in fee simple, he which maketh the feoff- 
ment is called the feoffor, and he to whom the feoffment 
is made is called the feoffee. And the donor is properly 
where a man giveth certain lands or tenements to an- 
other in tail, he which maketh the gift is called the 
donor, and he to whom the gift is made, is called the 
donee. And the lessor is properly where a man letteth 
to another lands or tenements for term of life, or for 

term of years, or to hold at will, he which maketh the 

24 



Chap. VI.] TENANT FOR LIFE. 25 

lease is called lessor, and be to whom the lease is made 
is called lessee. And every one which hath an estate in 
any lands or tenements for term of his own or another 
man's life, is called tenant of freehold, and none other 
of a lesser estate can have a freehold: but they of a 
greater estate have a freehold ; for he in fee simple hath 
a freehold; and tenant in tail hath a f reehold^ &c. 



CHAPTER VII. 

TENANT FOR YEARS. 

§ 58. Tenant for term of years is where a man let- 
teth lands or tenements to another for term of certain 
years, after the number of years that is accorded be- 
tween the lessor and the lessee. And when the lessee 
entereth by force of the lease, then is he tenant for term 
of years ; and if the lessor in such case reserve to him a 
yearly rent upon such lease, he may choose for to dis- 
train for the rent in the tenements let, or else he may 
have an action of debt for the arrearages against the 
lessee. But in such case it behoveth, that the lessor be 
seised in the same tenements at the time of his lease ; for 
it is a good plea for the lessee to say, that the lessor had 
nothing in the tenements at the time of the lease, except 
the lease be made by deed indented, in which case such 
plea lieth not for the lessee to plead. 

§ 69. And it is to be understood, that in a lease for 
years, by deed or without deed, there needs no livery of 
seisin to be made to the lessee but he may enter when 
he will by force of the same lease. But of feoffments 



Chap. VII.J TENANT FOR YEARS. 27 

made in the country, or gifts in. tail, or. lease for term of 
life ; in such cases where a freehold shall pass, if it be by 
deed or without deed, it behoveth to have livery of seisin. 

§ 60. But if a man letteth lands or tenements by 
deed, or without deed, for term of years, the remainder 
over to another for life, or in tail, or in fee ; in this case 
it behoveth, that the lessor maketh livery of seisin to the 
lessee for years, otherwise nothing passeth to them in the 
remainder, although that the lessee enter into the tene- 
ments. And if the termor in this case entereth before 
any livery of seisin made to him, then is the freehold, 
and also the reversion, in the lessor. But if he maketh 
livery of seisin to the lessee, then is the freehold, to- 
gether with the fee to them in the remainder, according 
to the form of the grant and the will of the lessor. 

§ 61. And if a man will make a feoffment, by deed 
or without deed, of lands or tenements which he hath in 
divers towns in one county, the livery of seisin made in 
one parcel of the tenements in one town, in the name of 
all the rest, is sufficient for all other the lands and tene- 
ments comprehended within the same feoffment in all 
other the towns in the same county. But if a man 
maketh a deed of feoffment of lands or tenements in 
divers counties, there it behoveth in every county to have 
a livery of seisin. 

§ 62. And in some case a man shall have by the 
grant of another, a fee simple, fee tail, or freehold with- 
out livery of seisin. As if there be two men, and each 
of them is seised of one quantity of land in one county. 



28 TENANT FOR YEARS. [Book I. 

and the one granteth his land to the other in exchange for 
the land which the other hath, and in like manner the 
other granteth his land to the first grantor in exchange 
for the land which the first grantor hath ; in this case 
each may enter into the other's land, so put in exchange, 
without any livery of seisin ; and such exchange, made 
by parol, of tenements within the same county, without 
writing, is good enough. 

§ 63. And if the lands or tenements be in divers 
counties, viz. that which the one hath in one county, and 
that which the other hath in another county^ there it 
behoveth to have a deed indented made between them of 
this exchange. 

§ 64. And note, that in exchanges it behoveth, that 
the estates which both parties have in the lands so ex- 
changed, be equal ; for if the one willeth and grant that 
the other shall have his land in fee tail for the land 
which he hath of the grant of the other in fee simple, 
although that the other agree to this, yet this exchange 
is void, because the estates be not equal. 

§ 65. In the same manner it is, where it is granted 
and agreed between them, that the one shall have in 
the one land fee tail, and the other in the other land 
but for term of life ; or if the one shall have in the one 
land fee tail general, and the other in the other land fee 
tail especial, &c. So always it behoveth that in ex- 
change the estates of both parties be equal, viz. if the one 
hath a fee simple in the one land, that the other shall 
have like estate in the other land ; and if the one hath 



Chap. VII.] TENANT FOR YEARS. 29 

fee tail in the one land, the other ought to have the like 
estate in the other land, &c., and 90 of other estates. But 
it is nothing to charge of the equal value of the lands ; 
for albeit that the land of the one be of a far greater 
value than the land of the other, this is nothing to the 
purpose, so as the estates made by the exchange be equal. 
And so in an exchange there be two grants, for each 
party granteth his land to the other in exchange, &c., and 
in each of their grants mention shall be made of the ex- 
change. 

§ 66. Also, if a man letteth land to another for term 
of years, albeit the lessor dieth before the lessee entereth 
into the tenements, yet he may enter into the same tene- 
ments after the death of the lessor, because the lessee by 
force of the lease hath right presently to have the tene- 
ments according to the form of the lease. But if a man 
maketh a deed of feoffment to another, and a letter of 
attorney to one to deliver to him seisin by force of the 
same deed ; yet if livery of seisin be not executed in the 
life of him which made the deed, this a vaileth nothing, 
for that the other had nought to have the tenements ac- 
cording to the purport of the said deed, before livery of 
seisin made; and if there be no livery of seisin, then 
after the decease of him who made the deed, the right of 
these tenements is forthwith in his heir, or in some other. 

§ 67. Also, if tenements be let to a man for term of 
half a year, or for a quarter of a year, &c. in this case, if 
the lessee commit waste, the lessor shall have a writ of 
waste against him, and the writ shall say, qiLod tenet ad 



30 TENANT FOR YEARS. [BoOK L 

terminum annorum; but he shall have an especial de- 
claration upon the truth of his matter, and the count 
shall not abate the writ, because he cannot have any 
other writ upon the matter. 



CHAPTER VIII. 

TENANT AT WILL. 

§ 68. Tenant at will is, where lands or tenements are 
let by one man to another, to have and to hold to him at 
the will of the lessor, by force of which lease the lessee 
is in possession. In this case the lessee is called tenant 
at will, because he hath no certain nor sure estate, for 
the lessor may put him out at what time it pleaseth him. 
Yet if the lessee soweth the land, and the lessor, after it 
is sown, and before the corn is ripe, put him out, yet the 
lessee shall have the corn, and shall have free entry, 
egress, and regress, to cut and carry away the com, be- 
cause he knew not at what time the lessor would enter 
upon him. Otherwise it is if tenant for years, which 
knoweth the end of his term,* doth sow the land, and his 
term endeth before the corn is ripe. In this case the 
lessor, or he in the reversion, shall have the corn, be- 
cause the lessee knew the certainty of his term and when 
it would end. 

§ 69. Also, if a house be let to one to hold at will, by 

force whereof the lessee entereth into the house, and 

brings his household stuff into the same, and after the 

lessor puts him out, yet he shall have free entry, egress, 

iToTnlins says: "Rastell's translation renders this passage, 
* before the end of his term 'which it is appr(^hended is the true 
reading." 

31 



32 TENANT AT WILL. [Book I. 

and regress, into the said house by reasonable time to 
take away his goods and utensils. As if a man seised of 
a mease in fee simple, fee tail, or for life, hath certain 
goods within the said hous^ and niake& his executors, 
and dieth ; whosoever after his decease hath the house, 
his executors shall have free entry, egress, and regress, 
to carry out of the same house the goods of their testator 
by reasonable time. 

§ 70. Also, if a man make a deed of feoffment to an- 
other of certain lands, and delivereth to him the deed, 
but not livery of seisin; in this case he, to whom the 
deed is made, may enter into the land, and hold and 
occupy it at the will of him, which made the deed, be- 
cause it is proved by the words of the deed, that it is. his 
will that the other should have the land; but he which 
made the deed may put him out when it pleaseth him. 

§ 71. Also, if a house be leased to hold at will, the 
lessee is not bound to sustain or repair the house, as ten- 
ant for term of years is tied. But if tenant at will com- 
mit voluntary waste, as in pulling down of houses, or in 
felling of trees, it is said that the lessor shall have an 
action of trespass for this against the lessee. As if I 
lend to one my sheep to tathe his land, or my oxen to 
plough the land, and he killeth my cattle, I may well 
have an action of trespass against him, notwithstanding 
the lending. 

§ 72. Note, if the lessor upon a lease at will reserve 
to him a yearly rent, he may distrain for the rent behind, 
or have for this an action of debt at his own election. 



CHAPTER IX. 

TENANT BY COPY. 

§ 73. Tenant by copy of court roll, is, as if a man be 
seised of a manor, within which manor there is a custom 
which hath been used time out of mind of man, that cer- 
tain tenants within the same manor have used to have 
lands and tenements, to hold to them and their heirs in 
fee simple, or fee tail, or for term of life, &c., at the will 
of the lord according to the custom of the same manor. 

§ 74. And such a tenant may not alien his land by 
deed, for then the lord may enter as into a thing for- 
feited unto him. But if he will alien his land to another, 
it behoveth him after the custom to surrender the tene- 
ments in court, &c., into the hands of the lord, to the use 
of him that shall have the estate, in this form, or to this 
effect: 

A. of B. cometh into this court, and surrendereth in 
the same court a mease, &c., into the hands of the lord, to 
the use of C. of D. and his heirs, or the heirs issuing of 
his body, or for term of life, &c. And upon that cometh 
the aforesaid C. of D. and taketh of the lord in the same 
court the aforesaid mease, &c. To have and to hold to 
him and to his heirs, or to him and to his heirs, issuing 
3 33 



34 TENANT BY COPY. [Book I. 

of his body, or to him for term of life, at the lord's will, 
after the custom of the manor, to do and yield therefore 
the rents, services, and customs thereof before due and 
accustomed, &c. and giveth the lord for a fine, &c. and 
maketh unto the lord his fealty, &c. 

§ 75. And these tenants are called tenants by copy of 
court roll ; because they have no other evidence concern- 
ing their tenements, but only the copies of court rolls. 

§ 76. And such tenants shall neither implead nor be 
impleaded for their tenements by the king's writ. But if 
they will implead others for their tenements, they shall 
have a plaint entered in the lord's court in this form, or 
to this effect ; A. of B. complains against C. of D. of a 
plea of land, viz. of one messuage, forty acres of land, 
four acres of meadow, &c. with the appurtenances, and 
makes protestation to follow this complaint in the nature 
of the king's writ of assize of mordancester at the com- 
mon law, or, of an assize of novel disseisin, or formed on 
in the discender at the common law, or in the nature of 
any other writ, &c. Pledges to prosecute F. G. &c. 

§ 77. And although that some such tenants have an 
inheritance according to the custom of the manor, yet 
they have but an estate but at the will of the lord accord- 
ing to the course of the common law. For it is said, that 
if the lord do oust them, they have oo other remedy but 
to sue to their lords by petition ; for if they should have 
any other remedy, they should not be said to be tenants 
at will of the lord according to the custom of the manor. 



Chap. IX.] TENANT BY COPY. 35 

But the lord cannot break the custom which is reasonable 
in these cases. 

[But Brian chief justice said, that his opinion hath 
always been, and ever shall be, that if such tenant by cus- 
tom paying his services be ejected by the lord, he shall 
have an action of trespass against him. H. 21 E. IV. 
And so was the opinion of Danby chief justice in 7'E. 
IV. For he saith, that, tenant by the custom is as well 
inheritor to have his land according to the custom, as he 
which hath a freehold at the common law.] 



CHAPTER X. 

TENANT BY THE VEROE. 

§ 78. Tenants by the verge are in the same nature as 
tenants by copy of court roll. But the reason why they 
be called tenants by the verge, is, for that when they will 
surrender their tenements, into the hands of their lord to 
the use of another, they shall have a little rod (by the 
custom) in their hand, the which they shall deliver to 
the steward or to the bailiff according to the custom of 
the manor, and he which shall have the land shall take 
up the same land in court, and his taking shall be entered 
upon the roll, and the steward or bailiff according to the 
custom shall deliver to him that taketh the land the same 
rod, or another rod, in the name of seisin ; and for this 
cause they are called tenants by the verge : but they have 
no other evidence but by copy of court roll. 

§ 79. And also in divers lordships and manors there 
is this custom, viz. if such a tenant, which holdeth by 
custom, will alien his lands or tenements, he may sur- 
render his tenements to the bailiff, or to the reve, or to 
two honest men of the same lordship, to the use of him 
which shall have the land, to have in fee simple, fee tail, 

or for term of life, &c. And they shall present all this 

36 



Chap. X.] TENANT BY THE VERGE. 37 

at the next court, and then he, which shall have the land 
by copy of court roll, shall have the same according to 
the intent of the surrender. 

§ 80. And so it is to be understood, that in divers 
lordships, and in divers manors, there be many and 
divers customs in such cases, as to take tenements, and as 
to plead, and as to other things and customs to be done; 
and whatsoever is not against reason may well be ad- 
mitted and allowed. 

§ 81. And these tenants which hold according to the 
custom of a lordship or manor, albeit they have an estate 
of inheritance according to the custom of the lordship or 
manor, yet because they have no freehold by the course 
of the common law, they are called tenants by base 
tenure. 

§ 82. And there are divers diversities between tenant 
at will, which is in by lease of his lessor by the course of 
the common law, and tenant according to the custom of 
the manor in form aforesaid. For tenant at will accord- 
ing to the custom may have an estate of inheritance (as 
is aforesaid) at the will of the lord, according to the cus- 
tom and usage of the manor. But if a man hath lands 
or tenements, which be not within such a manor or lord- 
ship where such a custom hath been used in form afore- 
said, and will let such lands or tenements to another, to 
have and to hold to him and to his heirs at the will of the 
lessor, these words (to the heirs of the lessee) are void. 
For in this case if the lessee dieth, and his heir enter, the 
lessor shall have a good action of trespass against him ; 



yS TENANT BY THE VERQE. [Book L 

but not 80 against the heir of tenant by the custom in any 
case, &C.9 for that the custom of the manor in some case 
may aid him to bar his lord in an action of trespass, &c. 

§ 83. Also, the one tenant by the custom in some 
places ought to repair and uphold his houses, and the 
other tenant at will ought not. 

§ 84. Also, the one tenant by the custom shall do 
fealty, and the other not. And many other diversities 
there be between them. 



BOOK THE SECOND. 
CHAPTER I. 

HOMAGE. 

§ 85. Homage is the most honorable service, and 
most humble service of reverence, that a franktenant 
may do to his lord. For when the tenant shall make 
homage to his lord, he shall be nngirt, and his head un- 
covered, and his lord shall sit, and the tenant shall kneel 
before him on both his knees, and hold his hands jointly 
together between the hands of his lord, and shall say 
thus : I become your man from this day forward [of life 
and limb, and of earthly worship,] and unto you shall be 
true and faithful, and bear to you faith for the tene- 
ments that I claim to hold of you, saving the faith that I 
owe unto our sovereign lord the king; and then the lord, 
so sitting, shall kiss him. 

§ 86. But if an abbot, or a prior, or other man of 
religion, shall do homage to his lord, he shall not say, I 
become your man, &c., for that he hath professed himself 
to be only the man of Gbd. But he shall say thus : I do 
homage unto you, and to you I shall be true and faithful, 

39 



40 HOMAGE. [Book U. 

and faith to you bear for the tenements which I hold of 
you, saving the faith which I do owe unto our lord the 
king. 

§ 87. Also, if a woman sole shall do homage, she shall 
not say, I become your wonian ; for it is not fitting that a 
woman should say, that she will become a woman to any 
man, but to her husband, when she is married. But she 
shall say, I do to you homage, and to you shall be faith- 
ful and true, and faith to you shall bear for the tene- 
ments I hold of you, saving the faith I owe to our sover- 
eign lord the king. 

§ 88. Also, a man may see a good note in M. 15 E. 
III., where a man and his wife did homage and fealty 
in the Common Place,* which is written in this form. 
Note, that J. Lewkner and Eliz. his wife did homage to 
W. Thorpe in this manner: the one and the other held 
their hands jointly between the hands of W. T. and the 
husband saith in this form : We do to you homage, and 
faith to you shall bear, for the tenements which we hold 
of A., your conusor, who hath granted to you our services 
in B. and C. and other towns, &c., against all persons,^ 

1 1.e, Ck)mmon Pleas. 

* Instead of *' persons," the translation in Co. Lit has ''na- 
tions." Ritso's Science of the Law, 110, points out the mistrans- 
lation. So do Hargrave and Butler's notes, which say : *' Lord 
Ck>ke's translation of the word gents is erroneous ; for as Mr. 
Madox justly remarks, though the Roman word gens signifies 
sometimes ' a nation,' and sometimes * a family,' and gents is 
Romanic or bastard Roman, and derived from gens, yet like 
many other Romanic words it acquired a new import, and ac- 



Chap. I.] HOMAGE. 41 

saving the faith which we owe to our lord the king, and 
to his heirs, and to our other lords ; and both the one and 
the other kissed him. And after^ they did fealty, and 
both of them held their hands upon the book, and the hus- 
band said the words, and both kissed the book.* 

§ 89. Note, if a man hath several tenancies, which he 
holdeth of several lords, that is to say, every tenancy by 
homage ; then when he doth homage to one of his lords, 
he shall say in the end of his homage done. Saving the 
faith which I owe to our lord the king, and to my other 
lords. 

§ 90. Note, none shall do homage but such as have an 
estate in fee simple, or fee tail, in his own right, or in the 
right of another. For it is a maxim in law, that he 
which hath an estate but for term of life shall neither do 
homage nor take homage. For if a woman hath lands 
or tenements in fee simple, or in fee tail, which she 
holdeth of her lord by homage, and taketh husband and 
have issue, then the husband in the life of the wife shall 
do homage, because he hath title to have the tenements by 
curtesy of England if he surviveth his wife, and also he 
holdeth in right of his wife. But if the wife dies before 
homage done by the husband in the life of his wife, and 
the husband holdeth himself in as tenant by the curtesy, 

cording to that denotes 'men' or 'persons.' See Mad. Bar. 
Angl. 167, and Hist. Exch., in pref., p. 13." 

* J.e. afterwards. 

* In many early French texts, but not in Lettou and Machlinia, 
this section is transferred to the next chapter, where it appears 
just before the present section 94. 



42 HOMAGE. [Book IL 

then he shall not do homage to his lord, because he then 
hath an estate but for term of life. 

More shall be said of homage in the tenure of homage 
ancestral 



CHAPTER IL 

FEALTY. 

§ 9]. Fealty is the same that fidelitas is in Latin. 
And when a freeholder doth fealty to his lord, he shall 
hold his right hand upon a book, and shall say thus: 
Know ye this, my lord, that I shall be faithful and true 
unto you, and faith to you shall bear for the lands which 
I claim to hold of you, and that I shall lawfully do to 
you the customs and services which I ought to do, at the 
terms assigned, so help me God and his saints ; and he 
shall kiss the book. But he shall not kneel when he 
maketh his fealty, nor shall make such humble reverence 
as is aforesaid in homage. 

§ 92. And there is great diversity between the doing 
of fealty and of homage ; for homage cannot be done to 
any but to the lord himself ; but the steward of the lord's 
court, or bailiff, may take fealty for the lord. 

§ 93. Also, tenant for term of life shall do fealty, 
and yet he shall not do homage. And divers other diver- 
sities there be between homage and fealty. 

§ 94. Also, a man may see in 15 E. III. how a man 

and his wife shall do homage and fealty in the Common 

43 



44 FEALTY. [Book n. 

Place,* which is written before in the tenure of homage. 
More shall be said of fealty in the tenure in socage, 
and in frankalmoign, and in the tenure by homage an- 
cestral. 

1 J.6. Ck>inmon Pleas. 



CHAPTER in. 

ESCUAOE. 

§ 95. Escuage is called in Latin scutagiumj that is, 
service of the shield ; and that tenant which holdeth his 
land by escuage holdeth by knight's service. And also 
it is commojily said that some hold by the service of one 
knight's fee, and some by the half of a knight's fee. 
And it is said that when the king makes a voyage royal 
into Scotland to subdue the Scots, then he which holdeth 
by the service of one knight's fee ought to be with the 
king forty days, well and conveniently arrayed for the 
war. And he which holdeth his land by the moiety of a 
knight's fee ought to be with the king twenty days ; and 
he which holdeth his land by the fourth part of a 
knight's fee ought to be with the king ten days ; and so 
he that hath more, more, and he that hath less, less. 

§ 96. But it appeareth by the pleas and arguments 
made in a plea upon a writ of detinue of a writing obli- 
gatory brought by one H. Gray, T. 7 E. III., that it is 
not needful for him which holdeth by escuage, to go 
himself with the king, if he will find another able per- 
son for him conveniently arrayed for the war to go with 

45 



4t> ESCUAGE. [Book II. 

the king. And this seemeth to be good reason. For it 
may be that he which holdeth by such services is lan- 
guishing, so as he can neither go nor ride. And also an 
abbot, or other man of religion, or a feme sole, which 
hold by such services, ought not in such case to go in 
proper person. And Sir William Herle, then chief jus- 
tice of the Common Place,* said in this plea that escuage 
shall not be granted but where the king goes himself in 
his proper person. And it was demurred in judgment 
in the same plea, whether the 40 days should be ac- 
counted from the first day of the muster of the king's 
host made by the commissioners^ and by the command- 
ment of the king, or from the day that the king first 
entered into Scotland. Therefore inquire of this. 

§ 97. And after such a voyage royal into Scotland, it 
is commonly said that, by authority of parliament, the 
escuage shall be assessed and put in certain ; scil. a cer- 
tain sum of money, how much every one which holdetk 
by a whole knight's fee, who was neither by himself, nor 
by any other, with the king, shall pay to his lord of 
whom he holds his. land by escuage. As put the case 
that it was ordained by the authority of the parliament, 

1 I.e. Common Pleas. 

^Instead of ''commiRsioners/* the translation in Co. Lit. has 
*< commons." Ritso^s Science of the Law, 115, points out the 
mistake. Hargrave and Butler's notes, citing Ritso, say : 
'* ' Commons * seems to be inserted for * commissioners.' " Tom- 
lins says : ** This word, which in every printed copy reads * com- 
mons,' is a corruption (by means of a well known abbreviation) 
from * commissioners.' " 



p. III.] ESCUAGlE. 47 

that every one which holdeth by a whole knight's fee, 
who was not with the "king, shall pay to his lord forty 
shillings; then he which holdeth by the moiety of a 
knight's fee shall pay to his lord but twenty shillings; 
and he which holdeth by the fourth part of a knight's fee 
shall pay but ten shillings; and he which hath more, 
more, and which less, less. 

§ 98. And some hold by the custom^ that, if escuage 
be assessed by authority of parliament at any sum of 
money, that they shall pay but the moiety of that sum, 
and some but the fourth part of that sum. But because 
the escuage that they should pay is uncertain, for that it 
is not certain how the parliament, will assess the escu- 
age, they hold by knight's service. But otherwise it is 
of escuage certain, of which shall be spoken in the ten- 
ure of socage. 

§ 99. And if one speak generally of escuage, it shall 
be intended by the common speech of escuage uncertain, 
which is knight's service. And such escuage draweth to 
it homage, and homage draweth to it fealty ; for fealty is 
incident to every manner of service, unless it be to the 
tenure in frankalmoigne, as shall be said afterwards in 
tenure of frankalmoigne. And so he which holdeth by 
escuage holds by homage, fealty, and escuage. 

§ 100. And it is to be understood that, when escu- 
age is so assessed by authority of parliament, every lord 
of whom the land is holden by escuage shall have the 

1 Instead of '* some hold by the custom," the earliest French 
texts authorize '' some tenants hold." 



48 •ESCUAGE. [Book II. 

escuage so assessed by parliament ; because it is intended 
by the law, that at the beginning such tenements were 
given by the lords to the tenants to hold by such services, 
to defend their lords as well as the king, and to put in 
quiet their lords and the king from the Scots aforesaid. 

§ 101. And because such tenements came first from 
the lords, it is reason that they should have the escuage 
of their tenants. And the lords in such cases may dis- 
train for the escuage so assessed, or they in some cases 
may have the king's writs directed to the sheriffs of the 
same counties, &c., to levy such escuage for them, as it 
appeareth by the Register. But of such tenants as hold 
of the king by escuage, which were not with the king in 
Scotland, the king himself shall have the escuage. 

§ 102. Item, in such case aforesaid, where the king 
maketh a voyage royal into Scotland, and the escuage is 
assessed by parliament, if the lord distrain his tenant, 
that holdeth of him by service of a whole knight's fee, 
for the escuage so assessed, &c., and the tenant pleadeth, 
and will aver that he was with the king in Scotland, &c., 
by forty days, and the lord will aver the contrary, it is 
said that it shall be tried by the certificate of the mar- 
shal* of the king's host in vn-iting under his seal, which 
shall be sent to the justices.^ 

^ Instead of '* marshal," some of the earliest French texts, in- 
cluding Lettou and Machlinia, authorize ** constable." 

> Instead of '* which shall be sent to the justices,*' Lettou and 
Machlinia's text gives simply " &c." 



CHAPTER IV. 

knight's sekvice. 

§ 103. Tenure by homage, fealty, and escuage, is to 
hold by knight's service, and it draweth to it ward, mar- 
riage, and relief. For when such tenant dieth, and his 
heir male be within the age of twenty-one years, the lord 
shall have the land holden of him until the age of the 
heir of twenty-one years; the which is called full age, 
because such heir, by intendment of the law, is not able 
to do such knight's service before his age of twenty-one 
years. And also if such heir be not married at the time 
of the death of his ancestor, then the lord shall have the 
wardship and marriage of him. But if such tenant dieth, 
his heir female being of the age of fourteen years or more, 
then the lord shall not have the wardship of the land, 
nor of the body ; because that a woman of such age may 
have a husband able to do knight's service. But if such 
heir female be within the age of fourteen years, and 
unmarried at the time of the death of her ancestor, the 
lord shall have the wardship of the land holden of him 
until the age of such heir female of sixteen years; 

49 



50 KNIGHT'S SERVICE. [Book II. 

for it 18 given by the statute of Westminster I.,^ cap. 
22, that by the space of two years next ensuing the 
said fourteen years, the lord may tender convenable 
marriage without disparagement to such heir female. 
And if the lord within the said two years do not 
tender such marriage, &c., then she at the end of the 
said two years may enter, and put out her lord. But 
if such heir female be married within the age of 
fourteen years in the life of her ancestor, and her 
ancestor dieth, she being within the age of fourteen 
years, the lord shall have only the wardship of the land 
until the end of the fourteen years of age of such heir 
female, and then her husband and she may enter into 
the land, and oust the lord. For this is out of the case 
of the said statute, insomuch as the lord cannot tender 
marriage to her which is married, &c. For before the 
said statute of Westminster I., such issue female, 
which was within the age of fourteen years at the time 
of the death of her ancestor, and after she had accom- 
plished the age of fourteen years, without any tender of 
marriage by the lord unto her, such heir female might 
have entered into the land and ousted the lord, as ap- 
peareth by the rehearsal and words of the said statute ; 
so as the said statute was made (as it seemeth) in such 
case altogether for the advantage of lords. But yet this 
is always intended by the words of the same statute, that 
the lord shall not have these two years after the fourteen 
years, as is aforesaid, but where such heir female is 
13E. I. (1275). 



Chap. IV.J KNIGHTS SERVICE. 61 

within the age of fourteen years, and unmarried at the 
time of the death of her ancestor.^ 

§ 104. Note, that the full age of male and female, 
according to common speech, is said the age of twenty- 
one yeafs. And the age of discretion is called the age 
of fourteen years ; for at this age, the infant which is 
married within such age to a woman, may agree or dis- 
agree to such marriage. 

^Hargrave and Butler*s notes say : ** In Lettou and Machlinia 
and the Paper MS. there is the following addition : — 

'* ' Item, If a man holds a manor of another by knight*s service, 
and he holds another manor of another man by the same service, 
but holds one manor by priority, &c.,and the other manor by 
posteriority, and has issue a daughter, and dies, and the manors 
descend to the daugliter then being witliin the age of fourteen 
years, and the lord of whom one of the manors is held by priority 
seizes the wardship of the body of the heir and of the manor 
held of him, and the other lord seizes the wardship of the other 
manor held of him. in this case, when the daughter comes to the 
age of fourteen years, she shall enter on the manor held by pos- 
teriority although she be then unmarried. 

*' ' For the words of the same statute of Westminster I. are in 
the form which followeth : 

** * And of heirs females, after they have accomplished the age 
of fourteen years, and the lord (to whom the marriage belongeth) 
will not marry them, but from covetise of the land will keep 
them unmarried ; it is provided, that the lord shall not have nor 
keep, by reason of marriage, the lands of such heirs females 
more tlian two years after the term of the said fourteen yeai-s, 
&c.; by which words it may be proved, that after the age 
of fourteen years no one shall have the lands in such case, &c., 
except him to whom the marriage belongs, &c., because such 
marriage does not belong to him of whom the land is held by 
posteriority, &o., such heir female, when she comes to the age of 
fourteen years, may well enter on such laud which is so held by ' 
posteriority, &c/ See 35 H. VI. 52." 



62 KNIGHT»S SERVICE. [Book II. 

§ 105. And if the guardian in chivalry doth once 
marry the ward within his age of fourteen years to a 
woman, and if afterward at his age of fourteen years he 
disagree to the marriage, it is said by some, that the in- 
fant is not tied by the law to be again married by his 
guardian, for that the guardian had once the marriage 
of him, and because he was once out of his ward as to 
the ward of his body. And when he had once the mar- 
riage of him, and he was once out of his wardship, he 
flhall no more have the marriage of him.^ 

§ 106. In the same manner it is, if the guardian 
marry him, and the wife die, the infant being within the 
age of fourteen years, or twenty-one. 

§ 107. And that such infant may disagree to such 
marriage, when he comes to the age of fourteen years, it 
is proved by the words of the statute of Merton,^ cap. 6, 
which saith thus : 

De dominis qui maritaverint illos quos habent in cus- 
todia sua, villanis, vel aliis, sicut burgensibus, ubi dis- 
paragentur, si talis ha?res fuerit infra 14 annos, et talis 
cetatis quod matrimonio consentire non possit, tunc si 
parentes illi conquerantur, dominus amittat custodiam 
illam usque ad setatem hseredis, et omne commodum 
quod inde receptum fuerit, convertatur ad commodum 
hjeredis infra ffitatem existentis, secundum disposition- 
em parentum, propter dedecus ei impositum. Si autem 

1 Lettou and Machlinia's edition adds ** Inquire of this." 
« 20 H. III. (1235-^). 



Chap. IV.] KNIGHTS SERVICE. 53 

fuerit 14 ans et ultra, quod consentire possit et tali 
matrimonio consenserit, nulla sequatur pcena.^ 

And so it is proved by the same statute, that there is 
no disparagement but where he which is in ward is mar- 
ried within the age of fourteen years. 

§ 108. Note, it hath been a question, how these 
words shall be understood (Si parentes conquerantur). 
And it seemeth to some, that considering the statute of 
Magna Charta which willeth, quod hosredes maritentur 
absque disparagatione, &c., upon which this statute of 
Merton upon this point is founded, that no action can 
be brought upon this statute,^ insomuch as it was never 
seen or heard, that any action was brought upon the 
statute of Merton for this disparagement against the 
guardian [for the matter aforesaid] &c., and if any 
action might have been brought for this matter, it shall 
be intended^ that at some time it would have been put 

^ The passage quoted is thus translated in 1 Pickering^s Statutes 
at Large, 29 : — 

.** And as touching lords, which marry those that they have in 
ward to villeins, or other, as burgesses, where they be disparaged, 
if any such an heir be within the age of fourteen years, and of 
such age that he cannot consent to marriage, then, if his friends 
complain of the same lord, the lord shall lose the wardship unto 
the age of the heir : and all the profit, that thereof shall be taken, 
shall be converted to the use of the heir being within age, after 
the disposition and provision of his friends, for the shame done 
to him ; but if he be fourteen years and above, so that he may 
consent, and do consent to such marriage, no pain shall follow.'* 

2 Instead of ** that no action can be brought upon this statute," 
the best French texts authorize " as it seemeth, and." 

'Lettou and Machlinia's edition adds "by common presump- 
tion before this time." 



54 KNIGHT'S SERVICE. [Book II. 

in ure.^ And note that these words shall be understood 
thus, Si parentes conquer antur, id est, si parentes inter 
eos lamenteniur, which is as much as to say as if the 
cousins of such infant have cause to make lamentation 
or complaint amongst themselves, for the shame done to 
their cousin so disparaged, which in manner is a shame 
to them, then may the nesxt cousin, to whom the inheri- 
tance cannot descend, enter and oust the guardian in 
chivalry. And if he will not, another cousin of the in- 
fant may do this, and take the issues and profits to the 
use of the infant, and of this to render an account to the 
infant when he comes to his full age. Or otherwise the 
infant within age may enter himself, and oust the guar- 
dian, &c. 8cd qucere de hoc, 

§ 109. Also, there be many and divers other dispar- 
agements, which are not specified in the same statute. 
As if the heir which is in ward be married to one which 
hath but one foot, or but one hand, or which is de- 
formed, decrepit, or having some horrible disease, or 
great and continual infirmity; and (if he be an heir 
male) if he be married to a woman past the age of child- 
bearing. And there b^ other causes of disparagement ; 
but inquire of them, for it is a good matter to under- 
stand. 

§ 110. And of heirs male which be within the age of 
twenty-one years after the decease of their ancestor and 
not married, in this case the lord shall have the marriage 
of such heir, and he shall have time and space to tender ' 
» I.e. use. 



Chap. IV.] KNIGHT'S SERVICE. 55 

to him covenable marriage without disparagement with- 
in the said time of twenty-one years. And it is to be 
understood, that the heir in this case may chuse whether 
he will be married or no ; but if the lord, which is called 
guardian in chivalry, tenders to such heir covenable 
marriage within the age of twenty-one years without dis- 
paragement, and the heir refuseth this, and doth not 
marry himself within the said age, then the guardian 
shall have the value of the marriage of such heir male. 
But if such heir marrieth himself within the age of 
twenty-one years, against the will of the guardian in 
chivalry, then the guardian shall have the double value 
of the marriage by force of the statute of Merton afore- 
said, as in the same statute is more fully at large com- 
prised. 

§ 111. Also, divers tenants hold of their lords by 
knight's service, and yet they hold not by escuage, 
neither shall they pay escuage; as they which hold of 
their lords by castle-ward, that is to say, to ward a tower 
of the castle of their lord, or a door, or some other place 
of the castle, upon reasonable warning, when their lords 
hear that the enemies will come or are come in England. 
And in many other cases a man may hold by knight's 
service, and yet he holdeth not by escuage, nor shall pay 
escuage, as shall be said in the tenure by grand serjeanty. 
But in all cases where a man holds by knight's service, 
this service draweth to the lord ward and marriage. 

§ 112. And if a tenant, which holdeth of his lord by 
the service of a whole knight's fee, dieth, his heir then 



56 KNIGHT'S SERVICE. [Book IL 

being of full age, sciL of twenty-one years, then the lord 
shall have 100s. for a relief; and of the heir of him 
which holds by the moiety of a knight's fee, 50s., and of 
him which holds by the fourth part of a knight's fee, 
25s., and so he which holds more, more, and which less, 
less. 

§ 113. Also, a man may hold his land of his lord by 
the service of two knights' fees ; and then the heir, being 
of full age at the time of the death of his ancestor, shall 
pay to his lord ten pounds for relief. 

§ 114. Note, if there be grandfather, father,^ and 
son, and the mother dieth, living the father of the son, 
and after^ the grandfather, which holds his land by 
knight's service, dieth seised, and his land descend to the 
son of the mother as heir to the grandfather, who is with- 
in age; in this case the lord shall have the wardship of 
the land but not of the body of the heir, because none 
shall be in ward of his body to any lord, living his 
father, for the father during his life shall have the mar- 
riage of his heir apparent, and not the lord. Otherwise 
it is, where the father dieth living the mother, where the 
land holden in chivalry descends to the son on the part 
of the father, &c. 

§ 115. [Xote, if a man be seised of land which is 
holden by knight's service, and maketh a feoffment in 
fee to his own use, and dieth seised of the use, his heir 

1 Instead of ** father," the best French texts and the best trans- 
lations authorize ** mother." 
>i.e. afterwards. 



Chap, IV.] KNIGHTS SERVICE. 57 

within age, and no will declared by him, the lord shall 
have a writ of right of the wardship of the bodj and 
land, as if the tenant had died seised of the demesne. 
And if the heir be of full age at the time of the decease 
of his ancestor, in this case he shall pay relief, as if he 
had been seised of the demesne. And this is by the sta- 
tute of 4 H. VIL, cap. 17.]^ 

§ 116. Note, there is guardian in right in chivalry, 
and guardian in deed in chivalry. Guardian in right 
in chivalry is, where the lord by reason of his seigniory 
is seised of the wardship of the lands and of the heir, ut 
supra. Guardian in deed in chivalry is, where in such 
case the lord after his seisin grants, by deed or without 
deed, the wardship of the lands, or of the heir, or of 
both, to another, by force of which grant the grantee is 
in possession. Then is the grantee called guardian in 
fait, or guardian in deed. 

^ Coke says : ** This section is an addition to Littleton.'* Har- 
grave and Butler's notes say : *' It was first introduced in Red- 
man." 



CHAPTER V. 



SOCAGE. 



§ 117. Tenure in socage is where the tenant holdeth 
of his lord the tenancy by certain service for all manner 
of services, so that the service be not knight's service. 
As where a man holdeth his land of his lord by fealty 
and certain rent, for all manner of services; or else 
where a man holdeth his land by homage, fealty, and 
certain rent, for all manner of services ;^ for homage by 
itself maketh not knight's service. 

§ 118. Also, a man may hold of his lord by fealty 
only, and such tenure is tenure in socage ; for every ten- 
ure which is not tenure in chivalry, is a tenure in socage. 

§ 119. And it is said, that the reason, why such ten- 
ure is called and hath the name of tenure in socage, is 
this: because socagium idem est quod servitium socoe, 

* Many French texts, including the one formerly printed in Co. 
Lit., add a third instance : ** or where a man holdeth his land by 
homage and fealty for all manner of services." These words are 
omitted in most of the titinslations, both before and after the 
first edition: but they appear in the translation in the fourteenth 
edition of Co. Lit. and also in the later editions. Tomlins com* 
bines the second and third instances, thus : ** or else where a 
man holdeth his land by homage and fealty for all manner of 
services." 

58 



Chap, V.] SOCAGE. 59 

and soca idem est quod caruca, dec, i. e, a soke or a 
plough. In ancient time, before the limitation of time 
of memory, a great part of the tenants, which held of 
their lords by socage, ought to come with their ploughs, 
every of the said tenants for certain days in the year to 
plough and sow the demesnes of the lord. And for that 
such works were done for the livelihood and sustenance 
of their lord, they were quit against their lord of all 
manner of services, &c. And because that such services 
were done with their ploughs, this tenure was called 
tenure in socage. And afterwards these services were 
changed into money, by the consent of the tenants and 
by the desire of the lords, viz. into an annual rent, &c. 
But yet the name of socage remaineth, and in divers 
places the tenants yet do such services with their ploughs 
to their lords ; so that all manner of tenures, which are 
not tenures by knight's service, are called tenures in 
socage. 

§ 120. Also, if a man holdeth of his lord by escuage 
certain, scil. in this manner, when the escuage runneth 
and is assessed by parliament to a greater or lesser sum, 
that the tenant shall pay to his lord but half a mark for 
escuage, and no more nor less, to how great a sum, or to 
how little the escuage runneth, &c.,^ such tenure is 
tenure in socage, and not knight's service. But where 
the sum which the tenant shall pay for escuage is uncer- 

1 Here the early French texts, except Lettou and Machlinia, 
add *• in this case, because the escuage is in certain before that 
any escuage is assessed.'^ 



60 SOCAGE. [Book IL 

tain, soil, where it may be that the sum that the tenant 
shall pay for escuage to his lord, may be at one time 
more and at another time less, according as it is assessed, 
&c., such tenure is tenure by knight's service. 

§ 121. Also, if a man holdeth his land to pay a cer- 
tain rent to his lord for castle-guard, this tenure is tenure 
in socage. But where the tenant ought by himself or by 
another to do castle-guard, such tenure is tenure by 
knight's service. 

§ 122. Also, in all cases where the tenant holdeth of 
his lord to pay unto him any certain rent, this rent is 
called rent service. 

§ 123. Also, in such tenures in socage, if the tenant 
have issue and die, his issue being within the age of 
fourteen years, then the next friend of that heir, to 
whom the inheritance cannot descend, shall have the 
wardship of the land and of the heir until the age of 
fourteen years, and such guardian is called guardian in 
socage. For if the land descend to the heir of the part 
of the father, then the mother, or other next cousin of the 
part of the mother, shall have the wardship. And if land 
descend to the heir of the part of th emother, then the 
father or next friend of the part of the father shall have 
the wardship of such lands or tenements. And when the 
heir cometh to the age of fourteen years complete, he 
may enter and oust the guardian in socage, and occupy 
the land himself, if he will. And such guardian in 
socage shall not take any issues or profits of such lands 
or tenements to his own use, but only to the use and 



CHAP, v.] SOCAGE. 61 

profit of the heir ; and of this he shall render an account 
to the heir, when it pleaseth the heir after he aceom- 
plisheth the age of fourteen years. But such guardian 
upon his account shall have allowance of all his reason- 
able costs and expenses in all things, &c. And if such 
guardian marrj the heir within age of fourteen years, 
he shall account to the heir, or his executors, of the value 
of the marriage, although that he took nothing for the 
value of the marriage ; for it shall be accounted his own 
folly, that he would marry him without taking the value 
of the marriage, unless that he marrieth him to such a 
marriage, that is as much worth in value as the mar- 
riage of the heir. 

§ 124. And if any 'other man, who is not the next 
friend, occupies the lands or tenements of the heir as 
guardian in socage, ho shall be compelled to yield an 
account to the heir, as well as if he had been next friend ; 
for it is no plea for him in the writ of account to say, 
that he is not the next friend, &c., but he shall answer 
whether he hath occupied the lands or tenements as guar- 
dian in socage or no. But queer e, if after the heir hath 
accomplished the age of fourteen years, and the guar- 
dian in socage continually occupieth the land until the 
heir comes to full age, scil. of twenty-one years, if the 
heir at his full age shall have an action of account 
against the guardian, from the time that he occupied 
after the said fourteen years, a? guardian in socage, or 
against him as his bailiflF.^ 

iCoke says : ** lliis qucere came not out of Littleton's quiver ; 
for it is evident, that after the age of fourteen years he sliall be 



02 SOCAGE. [Book H. 

§ 125. Also, if guardian in chivalry makes his execu- 
tors and die, the heir being within age, &c., the executors 
shall have the wardship during the nonage, &c. But if 
the guardian in socage make his executors and die, the 
heir being within the age of fourteen years, his executors 
shall not have the wardship ; but another next friend, to 
whom the inheritance cannot descend, shall have the 
wardship, &c. And the reason of this diversity is, be- 
cause the guardian in chivalry hath the wardship to his 
own use, and the guardian in socage hath not the ward- 
ship to his own use, but to the use of the heir. And in 
this case where the guardian in socage dieth before any 
account made by him to the heir,. of this the heir is with- 
out remedy, for that no writ of account lieth against the 
executors, but for the king only. 

§ 126. Also, the lord, of whom the land is holden in 
socage, after the decease of his tenant, shall have relief 
in this manner. If the tenant holdeth by fealty and 
certain rent to pay yearly, &c., if the terms of payment 
be to pay at two terms of the year, or at four terms in 
the year, the lord shall have of the heir his tenant, as 
much as the rent amounts unto, which he payeth yearly. 
As if the tenant holds of his lord by fealty, and ten shil- 

cliarged as bailiff, at any time when the heir will, either before 
his age of twenty-one years or after." 

Hargrave and Butler's notes say : *' Notwithstanding Lord 
Coke's observation on the qtuere, it is in Lettou and Machlinia, 
Rouen, Pynson, and both of the MSS." 

And Tomlins says: ^'Tlie quare is in Lettou and Machlinia, 
Hachlinia, Rouen, Pynson 1516, both the MSS., and in RastelFs 
translation." 



Chap. V.] SOCAGE. 63 

lings rent payable at certain terms of the year, then the 
heir shall pay to the lord ten shillings for relief, beside 
the ten shillings which he payeth for the rent. 

[In the same manner it is, if a man be seised of cer- 
tain land which is holden in socage, and maketh a feoff- 
ment in fee to his own use, and dieth seised of the use, 
(his heir of the age of fourteen years or more, and no 
will by him declared) the lord shall have relief of the 
heir, as afore is said. And this by the statute of 19 H. 
VIL, cap. 15.]^ 

§ 127. And in this case, after the death of the ten- 
ant, such relief is due to the lord presently, of what age 
soever the heir be;^ because such lord cannot have the 
wardship of the body, nor of the land of the heir. And 
the lord in such case ought not to attend for the payment 
of his relief, according to the terms and days of payment 
of the rent; but he is to have his relief presently, and 
therefore he may forthwith distrain after the death of 
his tenant for relief. 

§ 128. In the same manner it is, where the tenant 
holdeth of his lord by fealty and a pound of pepper or 

^Coke says : ** This is an addition to Littleton." Hargrave and 
Butler's notes say: •'This part about relief from the heir of 
cestui que ^se, as Lord Coke truly observes, is an addition to Lit- 
tleton : and it first appears in Redman." 

* According to some texts, these words are to be added : "so that 
he be past the age of fourteen years." Coke says: ''Those 
words so added are against the law, and no pai*t of Littleton's 
work." Hargrave and Butler's notes say : "They were first in- 
serted in Pynson." 



64 SOCAGE. [Book U, 

cummin, and the tenant dieth/ the lord shall have for 
relief a pound of cummin, or a pound of pepper, be- 
sides the common rent. In the same manner it is, where 
the tenant holdeth to pay yearly a number of capons or 
hens, or a pair of gloves, or certain bushels of corn, or 
such like. 

§ 129. But in some case the lord ought to stay to dis- 
train for his relief until a certain time. As if the tenant 
holds of his lord by a rose, or by a bushel of roses, to pay 
at the feast of St. John the Baptist, if such tenant dieth 
in winter, then the lord cannot distrain for his relief, 
until the time that roses by the course of the year may 
have their growth, &c. And so of the like. 

§ 130. Also, if any will ask, why a man may hold of 
his lord by fealty only for all manner of services, inso- 
much as when the tenant shall do his fealty, he shall 
swear to his lord that he will do to his lord all manner 
of services due, and when he hath done fealty, in this 
case no other service is due : to this it may be said, that 
where a tenant holds his land of his lord, it behooveth 
that he ought to do some service to his lord. For if the 
tenant nor his heirs ought to do no manner of service to 
his lord nor his heirs, then by long continuance of time 
it would grow out of memory, whether the land were 
holden of the lord, or of his heirs, or not, and then will 
men more often and more readily say, that the land is 
not holden of the lord, nor of his heirs, than otherwise ; 
and hereupon the lord shall lose his escheat of the land, 
or perchance some other forfeiture or profit which he 



Chap. V.J SOCAGE. 65 

might have of the land. So it is reason, that the lord 
and his heirs have some service done unto them, to prove 
and test if v, that the land is holden of them. 

§ 131. And for that fealty is incident to all manner 
of tenures, but to the tenure in frankalmoign, (as shall 
be said in the tenure of frankalmoign), and for that the 
lord would not at the beginning of the tenure have any 
other service but fealty, it is reason, that a man may 
hold of his lord by fealty only ; and when he hath done 
his fealty, he hath done all his services. 

§ 132. Also, if a man letteth to another lands or 
tenements for term of life, without naming any rent to 
be reserved to the lessor, yet he shall do fealty to the 
lessor, because he holdeth of him. Also if a lease be 
made to a man for term of years, it is said, that the 
lessee shall do fealty to the lessor, because he holdeth of 
him. And this is well proved by the words of the writ 
of waste, when the lessor hath cause to bring a writ of 
waste against him ; which writ shall say, that the lessee 
holds his tenements of the lessor for term of years. So 
the writ proves a tenure between them. But he, which 
is tenant at will, according to the course of the conmion 
law, shall not do fealty; because he hath not any sure 
estate. But otherwise it is of tenant at will, according 
to the custom of the manor ; for that he is bound to do 
fealty to his lord for two causes. The one is, by reason 
of the custom ; and the other is, for that he taketh his 
estate in such form to do his lord fealty. 
S 



CHAPTER VI. 

FRANKALMOIGN. 

§ 133. Tenant in frankalmoign is, where an abbot, 
or prior, or another man of religion, or of holy church, 
holdeth of his lord in frankalmoign; that is to say in 
Latin, in liberam eleemosinam, that is, in free alms. 
And such tenure began first in old time. When a man in 
old time was seised of certain lands or tenements in his 
demesne as of fee, and of the same land infeoffed an 
abbot and his covent, or prior and his covent, to have 
and to hold to them and their successors in pure and per- 
petual alms, or in frankalmoign ; or by such words, to 
hold of the grantor or of the lessor^ and his heirs in free 
alms : in such case the tenements were holden in frank- 
almoign. 

§ 134. In the same manner it is, where lands or tene- 
ments were granted in ancient time to. a dean and chap- 
ter and to their successors, or to a parson of a church 
and his successors, or to any other man of holy church 

iHargrave and Butler's notes say: "The work which Lord 
Coke translates * lessor,' is in the original * feoffor,' but, as he 
evidently refers to a lease for lives, for which, before the Statute 
of Uses, livery of seisin was necessary, such a lease was a feoff- 
ment ; so that the difference is immaterial." 

66 



Chap. VL] FRANKALMOIGN. 67 

and to his successors, in frankalmoign, if he had capaci- 
ty to take such grants or feoffments, &c. 

§ 135. And they, which hold in frankalmoign, are 
bound of right before God to make orisons, prayers, 
masses, and other divine services, for the souls of their 
grantor or feoffor, and for the souls of their heirs^ which 
are dead, and for the prosperity and good life and good 
health of their heirs which are alive. And therefore 
they shall do no fealty to their lord ; because that this 
divine service is better for them before God, than any 
doing of fealty; and also because that these words 
(frankalmoign) exclude the lord to have any earthly or 
temporal service, but to have only divine and spiritual 
service to be done for him, &c. 

§ 136. And if they, which hold their tenements in 
frankalmoign, will not or fail to do such divine service 
(as is said) the lord may not distrain them for not doing 
this, &c., because it is not put in certainty what services 
they ought to do. But the lord may complain of this to 
their ordinary or visitor, praying him, that he will lay 
some punishment and correction for this, and also pro- 
vide that such negligence be no more done, &c. And the 
ordinary or visitor of right ought to do this, &c. 

§ 137. But if an abbot, or prior, holds of his lord by 
a certain divine service, in certain to be done, as to sing 

1 Instead of ** heirs,'* Ritso*s Science of the Law, 115, suggests 
** ancestors." Hargrave and Butler's notes approve the amend- 
ment. Yet the best French texts authorize '* heirs," and this 
appears to be the correct word. 



68 FRANKALMOIGN. [Book H. 

a mass every Friday in the week, for the souls, ut supra, 
or every year at such a day to sing a placebo et dirige, 
&c., or to find a chaplain to sing a mass, &c., or to distrib- 
ute in alms to an hundred poor men an hundred pence at 
such a day; in this case, if such divine service be not 
done, the lord may distrain, &c., because the divine serv- 
ice is put in certain by their tenure, which the abbot or 
prior ought to do. And in this case the lord shall have 
fealty, &c., as it seemeth. And such tenure shall not be 
eaid to be tenure in frankalmoign, but is called tenure 
by divine service. For in tenure in frankalmoign no 
mention is made of any manner of service ; for none can 
hold in frankalmoign, if there be expressed any manner 
of certain service that he ought to do, &c 

§ 138. Also, if it be demanded, if tenant in frank- 
marriage shall do fealty to the donor or his heirs before 
the fourth degree be past, &c., it seemeth that he shall. 
For he is not like as to this purpose to tenant in frank- 
almoign; for tenant in frankalmoign by reason of his 
tenure shall do divine service for his lord, as is said be- 
fore; and this he is charged to do by the law of holy 
church, and therefore he is excused and discharged of 
fealty : but tenant in frankmarriage shall not do for his 
tenure such service ; and if he doth not fealty, he shall 
not do any manner of service to his lord, neither spirit- 
ual nor temporal, which would be inconvenient, and 
against reason, that a man shall be tenant of an estate of 
inheritance to another, and yet the lord shall have no 
manner of service of him. And so it seems he shall do 



Chap. VI.J FRANKALMOIGN. 69 

fealty to his lord before the fourth degree be past. And 
when he hath done fealty, he hath done all his services. 

§ 139. And if an abbot holdeth of his lord in frank- 
almoign, and the abbot and covent under their common 
seal alien the same tenements to a secular man in fee 
simple, in this case the secular man shall do fealty to 
the lord ; because he cannot hold of his lord in frankal- 
moign. For if the lord should not have fealty of him, 
he should have no manner of service, which should be 
inconvenient, where he is lord, and the tenements be 
holden of him. 

§ 140. Also, if a man grant at this day to an abbot, 
or to a prior, lands or tenements in frankalmoign, these 
words (frankalmoign) are void; for it is ordained by 
the statute which is called Quia Emptores Terrarum 
(whfch was made anno 18 E. I.) that none may alien 
nor grant lands or tenements in fee simple to hold of 
himself. So that if a man seised of certain tenements, 
which he holdeth of his lord by knight's service, and at 
this day he, &c., granteth by licence the same tenements 
to an abbot, &c., in frankalmoign, the abbot shall hold 
immediately the tenements by knight's service of the 
same lord of whom his grantor held, and shall not hold 
of his grantor in frankalmoign, by reason of the same 
statute. So that none can hold in frankalmoign, unless 
it be by title of prescription, or by force of a grant made 
to any of his predecessors before the same statute was 
made. But the king may give lands or tenements in fee 



7() FRANKALMOIGN. [Book II. 

simple to hold in frankalmoign, or by other services; 
for he is out of the case of that statute. 

§ 141. And note, that none may hold lands or tene- 
ments in frankalmoign, but of the grantor, or of his 
heirs. And therefore it is said, that if there be lord, 
mesne and tenant, and the tenant is an abbot, which 
holdeth of his mesne in frankalmoign, if the mesne die 
without heir, the mesnalty shall come by escheat to the 
said lord paramount, and the abbot shall then hold im- 
mediately of him by fealty only, and shall do to him 
fealty ; because he cannot hold of him in frankalmoign, 
&c. 

§ 142. And note, that where such man of religion 
holds his tenements of his lord in frankalmoign, his lord 
is bound by the law to acquit him of every manner of 
service which any lord paramount will have or demand 
of him for the same tenements ; and if he doth not acquit 
him, but suffereth him to be distrained, &c., he shall 
have against his lord a writ of mesne, and shall recover 
against him his damages and costs of suit, &c. 



CHAPTEE VII. 



HOMAGE ANCESTRAL. 



§ 143. Tenant by homage ancestral is, where a tenant 
holdeth his land of his lord by homage, and the same 
tenant and his ancestors, whose heir he is, have holden 
the same land of the same lord and of his ancestors, 
A. hose heir the lord is, time out of memory of man, by 
homage, and have done to them homage. And this is 
called homage ancestral, by reason of the continuance, 
which hath been, by title of prescription, in the tenancy 
in the blood of the tenant, and also in the seigniory 
in the blood of the lord. And such service of homage 
ancestral draweth to it warranty, that is to say, that the 
lord, which is living and hath received the homage of 
such tenant, ought to warrant his tenant, when he is im- 
pleaded of the land holden of him by homage ancestral. 

§ 144. And also such service by homage ancestral 
draweth to it acquittal, sciL that the lord ought to acquit 
the tenant against all other lords paramount of every 
manner of service. 

§ 145. And it is said, that if such tenant be impleaded 
by a prcecipe quod reddat, &c., and vouch to warranty 
his lord, who cometh in by process, and demands of the 

71 



72 HOMAGE ANCESTRAL. [Book II. 

tenant what he hath to bind him to warranty, and he 
sheweth, how he and his ancestors, whose heir he is, have 
holden their land of tlie vouchee and of his ancestors 
time out of mind of man; and if the lord, which is 
vouched, hath not received homage of the tenant, nor of 
any of his ancestors, the lord (if he will) may disclaim 
in the seigniory, and so oust the tenant of his warranty. 
But if the lord, who is vouched, hath received homage of 
the tenant, or of any of his ancestors, then he shall not 
disclaim, but he is bound by the law to warrant the ten- 
ant ; and then if the tenant loseth his land in default of 
the vouchee, he shall recover in value against the vouchee 
of the lands and tenements, which the vouchee had at the 
time of the voucher, or any time after. 

§ 146. And it is to be understood, that in every case 
where the lord may disclaim in his seigniory by the law, 
and of this he will disclaim in a court of record, his 
seigniory is extinct, and the tenant shall hold of the lord 
next paramount to the lord which so disclaimeth. But 
if an abbot or prior be vouched by force of homage an- 
cestral, &c., albeit that he never took homage, &c., yet he 
cannot disclaim in this case, nor in any other case ; for 
they cannot take away or divest a thing in fee, which 
hath been vested in their house. 

§ 147. Also, if a man, which holds his land by homage 
ancestral, alien to another in fee, the alienee shall do 
homage to his lord: but he holdeth not of his lord by 
homage ancestral ; because the tenancy was not continued 
in the blood of the ancestors of the alienee ; neither shall 



Chap. VII.] HOMAGE ANCESTRAL. 73 

the alienee have warranty of the land of his lord; be- 
cause the continuance of the tenancy in the tenant and 
to his blood by the alienation is discontinued. And so 
see, that if the tenant, which holdeth his land of his lord 
by homage ancestral alieneth in fee, though he taketh an 
estate again of the alienee in fee, yet he holds the land 
by homage, but not by homage ancestral. 

§ 148. Also, it is said, that if a man holds his land of 
his lord by homage and fealty, and he hath done homage 
and fealty to his lord, and the lord hath issue a son, and 
dies, and the seigniory descendeth to the son; in this 
case the tenant, which did homage to the father, shall not 
do homage to the son ; because that when a tenant hath 
once done homage to his lord, he is excused for term of 
his life to do homage to any other heir of the lord. But 
yet he shall do fealty to the son and heir of the lord, 
although he did fealty to his father. 

§ 149. Also, if the lord, after the homage done unto 
him by the tenant, grant the service of his tenant by deed 
to another in fee, and the tenant attorneth, &c., the ten- 
ant shall not be compelled to do homage. But he shall 
do fealty, although he did fealty before to the grantor ; 
for fealty is incident to every attornment of the tenant, 
when the seigniory is granted. But if any man be 
seised of a manor, and another holds of him the land, as 
of the manor aforesaid by homage, which tenant hath 
done homage to his lord who is seised of the manor, if 
afterwards a stranger bringeth a prcecipe qudd reddat 
against the lord of the manor, and recovereth the manor 



74: HOMAGE ANCESTRAL. [Book II. 

against him, and 8ues execution ; in this case the tenant 
shall again do homage to him, which recovered the 
manor, although he had done homage before; because 
the estate of him, which received the first homage, is de- 
feated by the recovery, and it shall not lie in the power 
of the tenant to falsify or defeat the recovery which was 
against his lord. And so see a diversity in this case, 
where a man cometh to a seigniory by recovery, and 
where he cometh to the same by descent or grant. 

§ 150. Also, if a tenant, which ought by his tenure to 
do his lord homage, cometh to his lord, and saith unto 
him. Sir, I ought to do homage unto you for the tene- 
ments which I hold of you, and I am here ready to do 
homage to you for the same tenements ; and therefore I 
pray you, that you would now receive the same from 
me. 

§ 151. And if the lord shall then refuse to receive 
this, then after such refusal the lord cannot distrain the 
tenant for the homage behind, before the lord requireth 
the tenant to do homage unto him, and the tenant refuse 
to do it. 

§ 152. Also, a man may hold his land by homage 
ancestral, and by escuage, or by other knight's service, 
as well as he may hold his land by homage ancestral in 
socage. 



CHAPTER VIIL 



GRAND SERJEANTY. 



§ 153. Tenure by grand serjeanty is, where a man 
holds his lands or tenements of our sovereign lord the 
king by such services as he ought to do in his proper per- 
son to the king, as to carry the banner of the king, or 
his lance, or to lead his army, or to be his marshal, or to 
carry his sword before him at his coronation, or to be his 
sewer at his coronation, or his carver, or his butler, or to 
be one of his chamberlains of the receipt of his ex- 
chequer, or to do other like services, &c. And the cause 
why this service is called grand serjeanty is, for that it 
is a greater and more worthy service, than the service 
in the tenure of escuage. For he, which holdeth by escu- 
age, is not limited by his tenure to do any more especial 
service than any other, which holdeth by escuage, ought 
to do. But he, which holdeth by grand serjeanty, ought 
to do some special service to the king, which he, that 
holds by escuage, ought not to do. 

§ 154. Also, if a tenant which holds by escuage dieth, 
his heir being of full age, if he holdeth by one knight's 
fee, the heir shall pay but 100s. for relief, as is ordained 
by the statute of Magna Chartaj c. 2. But if he which 

75 



76 PETIT SERJEANTY. [Book II. 

holdeth of the king by grand serjeanty, dieth, his heir 
being of full age, the heir shall pay to the king for relief 
one year's value of the lands or tenements which he 
holdeth of the king by grand serjeanty, over and besides 
all charges and reprises. And it is to be understood, 
that serjeantia in Latin is the same quod servitium, and 
so magna serjeantia is the same quod magnum servitium. 

§ 155. Also, they, which hold by escuage, ought to do 
their service out of the realm ; but they, which hold by 
grand serjeanty, for the most part ought to do their serv- 
ices within the realm. 

§ 156. Also, it is said, that in the marches of Scot- 
land some hold of the king by cornage, that is to say, to 
wind a horn, to give men of the country warning, when 
they hear that the Scots or other enemies are come or 
will enter into England ; which service is grand serjean- 
ty. But if any tenant hold of any other lord, than of 
the king, by such service of cornage, this is not grand 
serjeanty, but it is knight's service ; and it draweth to it 
ward and marriage; for none may hold by grand ser- 
jeanty but of the king only. 

§ 157. Also, a man may see in anno 11 H. IV. that 
Cokayne, then Chief Baron of the Exchequer, came into 
the Common Place,^ and brought with him the copy of 
a record in these words. Talis tenet tantam terram de 
domino rege per serjeantiam, ad inveniendum unum 
hominem ad guerram uhicunque infra quatuor maria, 
cCr. And he demanded, if this were grand serjeanty, or 

^ I.e. Common Pleas. 



Chap. VIII.] PETIT SERJEANTY. 77 

petit serjeanty. And Hanke then said, that it was grand 
serjeanty ; because he had a service to do by the body of 
a man, and if he cannot find a man to do the service for 
him, he himself ought to do it. Quod alii justiciarii con- 
cesserunt. Then saith Cokayne, Ought the tenant in 
this case to pay relief to the value of the land by the 
year ? Ad quod non fuit responsum. 

§ 158. And note, that all which hold of the king by 
grand serjeanty, hold of the king by knight's service; 
and the king for this shall have ward, marriage, and 
relief; but he shall not have of them escuage, unless they 
hold of him by escuage. 



CHAPTER IX. 



PETIT SERJEANTY. 



§ 159. Tenure by petit serjeanty is, where a man 
holds his land of our sovereign lord the king, to yield to 
him yearly a bow, or a sword, or a dagger, or a knife, or 
a lance, or a pair of gloves of mail, or a pair of gilt 
spurs, or an arrow, or divers arrows, or to yield such 
other small things belonging to war. 

§ 160. And such service is but socage in effect; be- 
cause that such tenant by his tenure ought not to go, nor 
do any thing, in his proper person, touching the war, 
but to render and pay yearly certain things to the king, 
as a man ought to pay a rent. 

§ 161. And note, that a man cannot hold by grand 
serjeanty, nor by petit serjeanty, but of the king, &c. 

18 . 



CHAPTEE X. 

TENURE IN BUBGAOE. 

§ 162. Tenure in burgage is, where an ancient bor- 
ough is, of which the king is lord, and they, that have 
tenements within the borough, hold of the king their 
tenements ; that every tenant for his tenement ought to 
pay to the king a certain rent by year, &c. And such 
tenure is but tenure in socage. 

§ 163. And the same manner is, where another lord 
spiritual or temporal, is lord of such a borough, and the 
tenants of the tenements in such a borough hold of their 
lord to pay, each of them yearly, an annual rent. 

§ 164. And it is called tenure in burgage, for that 
the tenements within the borough be holden of the 
lord of the borough by certain rent, &c And it is to 
wit, that the ancient towns called boroughs be the 
most ancient towns that be within England; for the 
towns that now be cities or counties, in old time were 
boroughs, and called boroughs; for of such old to^\^ls 
called boroughs, come the burgesses of the parliament 
to the parliament, when the king hath summoned his 
parliament. 

§ 165. Also, for the greater part such boroughs have 
79 



80 TENURE IN BURGAGE. [Book IL 

divers customs and usages, which be not had in other 
towns. For some boroughs have such a custom, that if 
a man have issue many sons and dieth, the youngest son 
shall inherit all the tenements which were his father's 
within the same borough, as heir unto his father by 
force of the custom ; the which is called borough English. 

§ 166. Also, in some boroughs, by custom, the wife 
shall have for her dower all the tenements which were 
her husband's. 

§ 167. Also, in some boroughs, by the custom, a man 
may devise by his testament his lands and tenements, 
which he hath in fee simple within the same borough at 
the time of his death ; and by force of such devise, he to 
whom such devise is made, after the death of the devisor, 
may enter into the tenements so to him devised, to have 
and to hold to him, after the form and effect of the de- 
vise, without any livery of seisin thereof to be made to 
him, &c. 

§ 168. Also, though a man may not grant, nor give, 
his tenements to his wife, during the coverture, for that 
his wife and he be but one person in the law ; yet by such 
custom he may devise by his testament his tenements to 
his wife, to have and to hold to her in fee simple, or in 
fee tail, or for term of life, or years, for that such devise 
taketh no effect but after the death of the devisor. And 
if a man at divers times makes divers testaments, and 
divers devises, &c., yet the last devise and will made by 
him shall stand, [and the others are void.] 

§ 169. Also, by such custom a man may devise by his 



Chap. X.] TENURE IN BURGAGE. 81 

testament, that his executors may alien and sell the tene- 
ments that he hath in fee simple, for a certain sum, to 
distribute for his soul. In this case, though the devisor 
die seised of the tenements, and the tenements descend 
unto his heir; yet the executors, after the death of the 
testator, may sell the tenements so devised to them, and 
put out the heir, and thereof make a feoffment, aliena- 
tion, and estate, by deed or without deed, to them to 
whom the sale is made. And so may ye here see a case, 
where a man may make a lawful estate, and yet he hath 
naught in the tenements at the time of the estate made. 
And the cause is, for that the custom and usage is such. 
For a custom, used upon a certain reasonable cause, de- 
priveth the common law. 

§ 170. And note that no custom is to be allowed, but 
such custom as hath been used by title of prescription, 
that is to say, from time out of mind. But divers opin- 
ions have been of time out of mind, &c., and of title of 
prescription, which is all one in the law. For some have 
said, that time out of mind should be said from time of 
limitation in a writ of right ; that is to say, from the 
time of king Richard the First after the Conquest, as is 
given by the statute of Westminster the First, for that a 
writ of right is the most high writ in his nature, that 
may be. And by such a writ a man may recover his 
right of the possession of his ancestors of the most an- 
cient time, that any man may by any writ by the law, 
&c. And in so much that it is given by the said statute, 
that in a writ of right none shall be heard to demand of 

6 



82 TENURE IN BURGAGE. [Book n. 

the seisin of his ancestors of longer time than of the time 
of King Richard aforesaid, therefore this is proved, that 
continuance of possession, or other customs and usages 
used from* the same time, is the title of prescription, &c. 
And this is certain. And others have said, that well and 
truth it is, that seisin and continuance from* the limita- 
tion, &c., is a title of prescription, as is aforesaid, and 
by the cause aforesaid. But they have said, that there is 
also another title of prescription, that was at the common 
law before any statute of limitation of writs, &c., and 
that it was, where a custom, or usage, or other thing, 
hath been used, for time whereof mind of man runneth 
not to the contrary. And they have said, that this is 
proved by the pleading, where a man will plead a title 
of prescription of custom.^ He shall say, that such cus- 
tom hath been used from time whereof the memory of 
men runneth not to the contrary, that is as much to say, 
when such a matter is pleaded, that no man then alive 
hath heard any proof of the contrary; nor hath no 
knowledge to the contrary ; and insomuch that such title 
of prescription was at the common law, and not put out 
by a statute, ergo, it abideth as it was at the common 
law; and the rather, insomuch that the said limitation 

1 Instead of '* from,'* the translation in Co. Lit. has " after.'* 
The change to *' from ** is suggested in Ritso's Science of the 
Law, 110-111. Hargrave and Butler's notes, citing Ritso, say : 
** The French word puis seems here to signify * from,' or * ever 
since,* and not * after.' " 

A Instead of *' from," tlie translation in Ck>. Lit. has ** after.** 
See the immediately preceding note. 



Chap. X.] TENURE IN BURGAGE. 88 

of a writ of right^ is of so long time passed. Ideo qucere 
de hoc. And many other customs and usages have such 
ancient boroughs. 

§ 171. Also, every borough is a town, but not e con- 
verso. More shall be said of custom in the tenure of 
villenage. 

M&o.^ 



CHAPTER XL 



VILLENAOE. 



§ 172. Tenure in villenage is most properly, when a 
villein holdeth of his lord, to whom he is a villein, cer- 
tain lands or tenements according to the custom of the 
manor, or otherwise, at the will of his lord, and to do to 
his lord villein service ; as to carry and recarry the dung 
of his lord out of the city, or out of his lord's manor,* 
unto the land of his lord,* and to spread the same upon 
the land, and such like. And some free men hold their 
tenements according to the custom of certain manors, by 
such services. And their tenure also is called tenure in 
villenage, and yet they are not villeins ; for no land hold- 
en in villenage, or villein land, nor any custom arising 
out of the land, shall ever make a free man villein. But 
a villein may make free land to be villein land to his 
lord. As where a villein purchaseth land in fee simple, 

1 Instead of ** out of thescite of his lord's manor/' the transla- 
tion in Co. Lit. has " out of the city, or out of his lord's manor." 
Coke suggests the change, saying : ** This is false printed, for the 
original is, hora del scite del mannovy and so would it be amended 
in the impressions of the book hereafter." 

a { lying fallow, } 

84 



Chap. XL] VILLENAGE. 85 

or in fee tail, the lord of the villein may enter into the 
land, and oust the villein and his heirs forever; and 
after, the lord (if he will may let the same land to the 
villein, to hold in villenage. 

§ 173. [And note, if a feoffment be made to a certain 
person or persons in fee, to the use of a villein ; or if a 
villein, with other persons, be in feoff ed to the use of the 
villein ; what estate soever that the villein hath in the 
use, in fee tail, for term of life or years, the lord of the 
villein may enter into all those lands and tenements, as 
if the villein had been sole seised of the demesne. And 
this is given by the statute of anno 19 H. VII., e. 15.]^ 

§ 174. But if a free man will take any lands or tene- 
ments, to hold of his lord by such villein service, viz. to 
pay a fine to hira^ for the marriage of his sons or daugh- 
ters, then he shall pay such fine for the marriage; and 
notwithstanding though it be the folly of such free man 
to take in such form lands or tenements to hold of the 
lord by such bondage, yet this maketh not the free man a 
villein.^ 

§ 175. Also, every villein is either a villein by title 
of prescription, to wit, that he and his ancestors have 

* Coke says : '* This is an addition to Littleton." Hargrave and 
Butler's notes say : ** This section was first introduced in Red- 
man's edition." 

3 Hargrave and Butler's notes say that in the Rouen edition 
" the words * for his marriage or' come in here." 

* In Lettou and Machlinia's edition, this section is placed at 
the end of the chapter. 



86 VILLENAGE. [Book II 

been villeins time out of mind of man ; or he is a villein 
by his own confession in a court of record. 

§ 176. But if a freeman hath divers issues, and after- 
wards he confesseth himself to be a villein to another in 
a court of record ; yet those issues which he hath before 
the confession are free, but the issues which he shall have 
after the confession shall be villeins. 

§ 177. Also, if a villein purchase land, and alien the 
land to another before that the lord enter, then the lord 
cannot enter; for it shall be adjudged his folly, that he 
did not enter, when the land was in the hands of the vil- 
lein. And so it is of goods. If the villein buy goods, 
and sell or give them to another, before the lord aeiseth 
them, then the lord may not seise the same. But if the 
lord, before any such sale or gift, cometh into the town, 
where such goods be, and there, openly amongst the 
neighbours, claim the goods, and seise part of the goods, 
in the name of seisin of all the goods [which the villein 
has or may have,] &c., this is a good seisin in law, and 
the occupation which the villein hath after such claim in 
the goods ; shall be taken in the right of the lord. 

§ 178. But if the king hath a villein, who purchases 
land, and alien it before the king enter; yet the king 
may enter, into whose hands soever the land shall come. 
Or if the villein buyeth goods, and sell them before that 
the king seiseth them ; yet the king may seise these goods, 
in whose hands soever they be. Because nullum tempus 
occurrit regi, 

§ 179. Also, if a man let certain land to another for 



Chap. XI.J VILLENAQE. 87 

term of life, saving to himself the reversion, and a vil- 
lein purchase of the lessor the reversion ; in this case it 
seemeth, that the lord of the villein may presently come 
to the land, and claim the reversion as the lord of the 
said villein, and by this claim the reversion is forthwith 
in him. For in other form or manner he cannot come 
to the reversion. For he cannot enter upon the tenant 
for life. And if he should stay until after the death of 
the tenant for life, then perchance he should come too 
late. For peradventure the villein will grant or alien 
the reversion to another, in the life of the tenant for life, 
&c. 

§ 180. In the same manner it is, where a villein pur- 
chases an advowson of a church full of an incumbent, the 
lord of the villein may come to the said church, and 
claim the said advowson, and by this claim the advowson 
is in him. For if he will attend till after the death of 
the incumbent, and then to present his clerk to the said 
church, then, in the meantime, the villein may alien the 
advowson, and so oust the lord of his presentment. 

§ 181. Also, there is a villein regardant, and a vil- 
lein in gross. A villein regardant is, as if a man be 
seised of a manor to which a villein is regardant, and he 
which is seised of the said manor, or they whose estate 
he hath in the same manor, have been seised of the vil- 
lein and of his ancestors as villeins [and neifes] regard- 
ant to the same manor time out of memory of man. 
And villein in gross is, where a man is seised of a manor 
whereunto a villein is regardant, and granteth the same 



88 VILLENAGE. [Book II. 

villein by his deed to another, then he is villein in gross, 
and not regardant. 

§ 182. Also, if a man and his ancestors, whose heir 
he is, have been seised of a villein and of his ancestors 
as of villeins in gross time out of memory of man, these 
are villeins in gross. 

§ 183. And here note, that such things, which cannot 
be granted, nor aliened, without deed or fine, a man 
which will have such things by prescription, cannot 
otherwise prescribe but in him and in his ancestors, 
whose heir he is, and not by these words, in him and 
them whose estate he hath ; for that he cannot have their 
estate without deed or other writing, the which ought to 
be shewed to the court, if he will take any advantage of 
it. And because the grant and alienation of a villein in 
gross lieth not without deed, or other writing, a man 
cannot prescribe in a villein in gross, without shewing 
forth a writing, but in himself which claims the villein, 
and in his ancestors whose heir he is. But of such 
things, which are regardant or appending to a manor, or 
to other lands and tenements, a man may prescribe, that 
he and they whose estate he hath, who were seised of the 
manor, or of such lands and tenements, &c., have been 
seised of those things, as regardant or appendant to the 
manor, or to such hands and tenements^ time out of mind 
of man. And the reason is, for that such manor or lands 
and tenements may pass by alienation without deed, &c. 

§ 184. And it is to be understood, that nothing is 



Chap. XI.] VILLENAGE. 89 

named regardant to a manor, &c., but a villein. But 
certain other things, as an advowson and common of pas- 
ture, &c., are named appendant to the manor, or to the 
lands and tenements, &c. 

§ 185. Also, if a man will acknowledge himself in a 
court of record to be a villein, who was not a villein 
before, such a one is a villein in gross. 

§ 186. Also, a man which is villein is called a vil- 
lein,* and a woman which is villein is called a neife ; as 
a man which is outlawed is called outlawed, and a 
woman which is outlawed is called waived. 

§ 187. Also, if a villein taketh a free woman to wife, 
and have issue between them, the issues shall be villeins. 
But if a neife taketh a freeman to her husband, their 
issue shall be free. 

[This is contrary to the civil law; for there it is said, 
partus sequitur ventrem.Y' 

§ 188. Also, no bastard may be a villein, unless he 
will acknowledge himself to be a villein in a court of 
record ; for he is in law quasi nullius filius, because he 
cannot be heir to any. 

§ 189. Also, every villein is able and free to sue all 
manner of actions against every person, except against 
his lord, to whom he is villein. And yet in certain 
things he may have against his lord an action. For he 
may have against his lord an action of appeal for the 

1 -{ or neif y 

* Ck>ke says : ** This is no part of Littleton." 



90 VILLENAQE. [Book U. 

death of his f ather^ or of his other ancestors, whose heir 
he is. 

§ 190. Also, a neife, that is ravished by her lord, may 
have an appeal of rape against him. 

§ 191. Also, if a villein be made executor to another, 
and the lord of the villein was indebted to the testator in 
a certain sum of money, which is not paid ; in this case, 
the villein, as executor of the testator, shall have an 
action of debt against his lord; because he shall not 
recover the debt to his own use, but to the use of the tes- 
tator. 

§ 192. Also, the lord may not take out of the posses- 
sion of such villein, who is executor, the goods of the 
deceased; and if he doth, the villein as executor shall 
have an action for the same goods so taken against his 
lord, and shall recover damages to the use of the testator. 
But in all such cases it behooveth, that the lord, which 
is defendant in such actions, maketh protestation, that 
the plaintiff is his villein ; or otherwise the villein shall 
be enfranchised, although the matter be found for the 
lord, and against the villein, as it is said. 

§ 193. Also, if a villein sueth an action of trespass, 
or any other action, against his lord in one county ; and 
the lord saith, that he shall not be answered, because he 
is his villein regardant to his manor in another county ; 
and the plaintiff saith, that he is free, and of a free 
estate, and not a villein ; this shall be tried in the county 
where the plaintiff hath conceived his action, and not in 
the county where the manor is : and this is in favour of 



Chap. XL] VILLENAOE. 9I 

liberty. And for this cause a statute was made anno 9 
E. II., e. 2, the tenor whereof followeth in this form: 
Also, for that where many villeins and neifes, as well of 
great lords as of other men, as well of spiritual as tem- 
poral, fly and go into cities, towns, and places f ranchised, 
as into the city of London, and other like places, and 
feign divers suits against their lords, because they would 
make themselves free by the answer of their lords: it is 
accorded and assented, that lords nor others shall not be 
forebarred of their villeins by reason of their answer in 
law. By force of which statute, if any villein will sue 
any manner of action to his own use in any county where 
it is hard to try, against his lord,* the lord may chuse 
whether he will plead, that the plaintiflf is his villein, or 
make protestation that he is his villein, and plead his 
other matter in bar. And if they be at issue, and the 
issue be found for the lord, then the villein is a villein, 
as he was before by force of the same statute. But if 
the issue be found for the villein, then the villein is free ; 
because that the lord took not at the beginning for his 

1 Commenting upon the obscurity of this passage, Ritso's 
Science of the Law, 107-108, says : *' The words mistaken in the 
original are, * where it is hard to try against his lord,' instead of 
* where lie/ the yillein, ' is powerful or strong in trial against his 
lord.' " 

Hargrave and Butler's notes, citing Ritso, say : ** The literal 
meaning of these words appears to be, * where he (the villien) is 
powerful or strong in trial against his lord,' and not, * where 
it is hard to try against his lord.' " 

But the sense appears clear if a comma be placed after the 
word ** try." 



92 VILLENAGE. [Book II. 

plea, that the villein was his villein, but took this by 
protestation, &c. 

§ 194. Also, the lord may not maim his villein, for 
if he maim his villein he shall of that be indicted at the 
king's suit, and if he be of that attainted, he shall for 
that make grievous fine and ransom to the king. But it 
seemeth that the villein shall not have by the law any 
appeal of mayhem against his lord, for in appeal of may- 
hem a man shall recover but his damages; and if the 
villein in that case recover damages against his lord, and 
hath thereof execution ; the lord may take that the villein 
hath in execution from the villein, and so the recovery 
is void, &c. 

§ 195. Also, if a villein be demandant in an action 
real, or plaintiff in an action personal against his lord, 
if the lord will plead in disability of his person, he may 
not make full' defence; but he shall defend but the 
wrong and the force, and demand the judgment, if he 
shall be answered and shew his matter forthwith,^ how 
he is villein, and demand judgment if he shall be an- 
swered. 

1 Instead of ** full," the transdation in Co. Lit. has ** plain. '^ 
Hargrave and Butler's notes point out the mistranslation of 
pletne or pleyiiy saying ** It should be * full.' " 

2 Instead of "forthwith," the translation in Co. Lit. has ** hy 
and by." Ritso's Science of the Law, 111, says : ** We have a 
wrong translation of the word maintenant, which does not 
mean * by and by,' but * without delay,' * presently,' *forthwith.' " 
Hargrave and Butler's notes, citing Ritso, say : ** The translation 
of maintenantt it should seem, is * presently,' or * forthwith,' or 
* without delay,' and not * by and by.' " 



Chap. XI.] VILLENAGE. 93 

§ 196. Also, there are six manner of men, who,* if 
they sue, judgment may be demanded, if they shall be 
answered, &c. One is, where a villein sueth an action 
against his lord, as in the case aforesaid. 

§ 197. The second is, where a man is outlawed upon 
the action of debt or trespass, or upon any other action 
or indictment, the tenant, or the defendant, may shew 
all the matter of record, and the outlawry, and demand 
judgment, if he shall be answered ; because he is out of 
the law to sue an action during the time that he is out- 
lawed. 

§ 198. The third is an alien, which is born out of the 
legiance of our sovereign lord the king, if such alien will 
sue an action real or personal, the tenant or defendant 
may say, that he was born in such a country, which is 
out of the king's allegiance, and ask judgment if he shall 
be answered. 

§ 199. The fourth is a man, who by judgment given 
again him upon writ of prcemunire facias, &c,, is out 
of the king's protection. If he sue any action, and the 
tenant or defendant shew all the record against him, he 
may ask judgment if he shall be answered; for the law 
and the king's writs be the things, by which a man is 
protected and holpen; and so, during the time that a 
man in such case is out of the king's protection, he is 
out of help and protection by the king's law, or by the 
king's writ. 

1 Instead of *' who/' the best French texts authorize '* against 
whom." 



94: VILLENAGE. [Book II. 

§ 200. The fifth is, where a man is entered and pro- 
fessed in religion. If such a one sue an action, the ten- 
ant or defendant may shew, that such a one is entered 
into religion in such a place, into the order of Saint 
Benet, and is there a monk professed, or into the order 
of friars, minors or preachers, and is there a brother pro- 
fessed, and so of other orders of religion, &c., and ask 
judgment if he shall be answered. And the cause is 
this; that when a man entereth into religion, and is 
professed, he is dead in the law, and his son, or next 
cousin incontinent shall inherit him, as well as though 
he were dead indeed. And when he entereth into relig- 
ion, he may make his testament, and his executors ; and 
they may have an action of debt due to him before his 
entry into religion, or any other action that executors 
may have, as if he were dead indeed. And if that he 
make no executors when he entereth into religion, then 
the ordinary may commit the administration of his 
goods to others, as if he were dead indeed. 

§ 201. The sixth is where a man is excommunicated 
by the law of holy church, and he sueth an action real 
or personal, the tenant or defendant may plead, that he, 
that sueth, is excommunicated, and of this it behooves 
him to shew the bishop's letters under his seal, witness- 
ing the excommunication, and ask judgment ; if he shall 
be answered, &c. But in this case, if the demandant or 
plaintiff cannot deny it, the writ shall not abate, but the 
judgment shall be, that the tenant or defendant shall go 
quit without day, for this, that when the demandant or 



Chap. XI.] VILLENAGE. 95 

plaintiff hath purchased his letters of absolution, and 
shewed them to the court, he may have a resummons, or 
a reattachment, upon his original, after the nature of his 
writ. But in the other five cases the writ shall abate, 
&c., if the matter shewed may not be gainsaid. 

§ 202. Also, if a villein be made a secular chaplain, 
yet his lord may seise hira as his villein, and seise his 
goods, &c. But it seemeth, that if the villein enter into 
religion, and is professed, that the lord may not take nor 
seise him, because he is dead in law ; no more than if a 
free man taketh a nief to his wife, the lord cannot take 
nor seise the wife of the husband, but his remedy is to 
have an action against the husband, for that he took his 
nief to wife without his licence and will, &c. And so 
may the lord have an action against the sovereign of the 
house, which taketh and admitteth his villein to be pro- 
fessed in the same house, without the licence and leave 
of the lord, and he shall recover his damages to the value 
of the villein. For he which is professed a monk, shall 
be a monk, and as a monk shall be taken for term of his 
natural life, unless he be deraigned by the law of holy 
church. And he is bound by his religion to keep his 
cloister, &c. And if the lord might take hira out of his 
house, then he should not live as a dead person, nor ac- 
cording to his religion, which should be inconvenient, 
&c. 

§ 203. In the same manner it is, if there be a guar- 
dian in chivalry of the body and land of an infant 
within age, if the infant, when he comes to the age of 



96 VILLENAGE. [Book II. 

fourteen years, entereth into religion, and is professed, 
the guardian hath no other remedy (as to the wardship 
of the body) but a writ of ravishment de gard against 
the sovereign of the house. And if any, being of full 
age, who is cousin and heir of the infant, entereth into 
the land, the guardian hath no remedy as to the ward- 
ship of the land, for that the entry of the heir of the 
infant is lawful in such case. 

§ 204. Also, in many and divers cases, the lord may 
make manumission and enfranchisement to his villein. 
Manumission is properly, when the lord makes a deed 
to his villein to enfranchise him by this word {manu- 
mittere)y which is the same as to put him out of the 
hands and power of another. And for that, that by such 
deed the villein is put out of the hands and out of the 
power of his lord, it is called manumission. And so 
every manner of enfranchisement made to a villein may 
be said to be a manumission. 

§ 205. Also, if the lord maketh to his villein an obli- 
gation of a certain sum of money, or granteth to him by 
his deed an annuity, or lets to him by his deed lands or 
tenements for term of years, the villein is enfranchised. 

§ 206. Also, if the lord maketh a feoffment to his vil- 
lein of any lands or tenements, by deed or without deed, 
in fee simple fee tail, or for term of life [or years,] and 
delivereth to him seisin, this is an enfranchisement. 

§ 207. But if the lord maketh to him a lease of lands 
or tenements, to hold at will of the lord, by deed or with- 
out deed, this is no enfranchisement; for that, that he 



Chap. XI.] VILLENAGE. 97 

hath no manner of certainty or surety of his estate, but 
the lord may oust him when he will. 

§ 208. Also, if the lord sueth against his villein a 
proBcipe quod reddat, if he recover, or be nonsuit after 
appearance, this is a manumission, for that he might 
lawfully have entered into the land without suit. In the 
same manner it is, if he sue against his villein an action 
of debt or account, or of covenant, or of trespass, or of 
such like, this is an enfranchisement, for that he might 
imprison the villein, and take his goods without such 
suit. But if the lord sue his villein by appeal of felony, 
[where he was indicted of the same before,] this shall 
not enfranchise the villein, albeit that the matter of 
appeal be found against the lord, for that the lord could 
not have the villein to be hanged without such suit. But 
if the villein were not indicted of the same felony before 
the appeal sued against him, and afterwards is acquitted 
of this felony, so as he recover damages against his lord 
for the false appeal, then the villein is enfranchised, 
because of the judgment of damages to be given unto 
him against his lord. And many other cases and matters 
there be, by which a villein may be enfranchised against 
his lord, &c. [But inquire of them.] 

§ 209. Also, if the lord of a manor will prescribe, 

that there hath been a custom within his manor time out 

of mind of man, that every tenant within the same 

manor, who marrieth his daughter to any man without 

licence of the lord of the manor, shall make fine* and 

1 Lettou and MachliDia's edition adds ** at the will of the 
lord/» 



98 VILLENAGE. [Book II. 

have made fine to the lord of the manor for the time 
being, this prescription is void. For none ought to make 
such fine but only villeins. For every free man may 
freely marry his daughter to whom it pleaseth him and 
his daughter. And for that this prescription is against 
reason, such prescription is void. 

§ 210. But in the county of Kent, where lands and 
tenements are holden in gravel-kind, there, where, by the 
custom and use out of mind of man, the issues male 
ought equally to inherit, this custom is allowable, be- 
cause it standeth with some reason: for every son is as 
great a gentleman as the eldest son is, and perchance will 
grow to greater honour and valour, if he hath anything 
by his ancestors, or otherwise peradventure he would not 
increase so much, &c.* 

§ 211. Also, where by the custom called Borough 
English, in some borough, the youngest son shall inherit 
all the tenements, &c., this custom also stands with some 
certain reason ; because that the youngest son (if he lack 
father and mother) because of his younger age, may 
least of all his brethren help himself, &c. 

§ 212. But if a man will prescribe, that if any cattle 
were upon the demesnes of the manor there doing dam- 
age, that th elord of the manor for the time being hath 

1 Tomlins points out that the text is confused at this place ; 
and from the various early editions he makes this translation of 
the concluding lines of the section: ** because every son is as 
great a gentleman as the eldest son, and [by reason of this] to 
greater honor and valor will increase ; and [if he had nothing] by 
his ancestor, &c., peradventure he would not increase so 
much. Ac.** 



Chap. XI.] VILLENAGE. 99 

used to distrain them, and the distress to retain till fine 
were made to him for the damages, at his will, this pre- 
scription is void; because it is against reason, that if 
wrong be done any man, that he thereof should be hia 
own judge; for by such wfiy, if he had damages but to 
the value of an kalfpenny, he might assess and have 
therefore 100 pounds, which should be against reason. 
And so such prescription, or any other prescription 
used, if it be against reason, this ought not, nor will not 
be allowed before judges; quia malus tisus abolendus 
est} 

^ In Lettou and Maohlinia's edition, section 174 is placed here. 



CHAPTER XII. 



BENTS. 



§ 213. Three manner of rents there be, that is to say, 
rent service, rent charge, and rent seek Kent service is 
where the tenant holdeth his land of his lord by fealty 
and certain rent, or by homage fealty and certain rent, 
or by other services and certain rent. And if rent serv- 
ice at any day, that it ought to be paid, be behind, the 
lord may distrain for that of common right. 

§ 214. And if a man will give lands or tenements to 
another in the tail, yielding to him certain rent [by the 
year], he of common right may distrain for the rent 
behind, though that such gift was made without deed, 
because that such rent is rent service. In the same man- 
ner it is, if a lease be made to a man for life, [or the life 
of another, rendering to the lessor certain rent,] or for 
term of years rendering rent. 

§ 215. But in such case, where a man upon such a 
gift or lease will reserve to him a rent service, it be- 
hooveth, that the reversion of the lands and tenements 
be in the donor or lessor. For if a man will make a 
feoffment in fee, or will give lands in tail, the remainder 

100 



Chap. XII.] RENTS. 101 

over in fee simple, without deed, reserving to him a cer- 
tain rent, this reservation is void, for that no reversion 
remains in the donor, and such tenant holds his land 
immediately of the lord, whom his donor held, &c. 

§ 216. And this is by force of the statute of Quia 
empteores terrarum. For before that statute, if a man 
had made a feoffment in fee simple, by deed or without 
deed, yielding to him and to his heirs a certain rent, this 
was a rent service, and for this he might have distrained 
of common right; and if there were no reservation of 
any rent, nor of any service, yet the feoffee held of the 
feoffor by the same service, as the feoffor did hold over 
of his lord next paramount. 

§ 217. But if a man, by deed indented, at this day 
maketh such a gift in [fee] tail, the remainder over in 
fee ; or a lease for life, the remainder over in fee ; or a 
feoffment in fee ; and by the same indenture he reserveth 
to him and to his heirs a certain rent, and that if the 
rent be behind, that it shall be lawful for him and his 
heirs to distrain, &c., such a rent is a rent charge; be- 
cause such lands or tenements are charged with such dis- 
tress by force of the writing only, and not of common 
right. And if such a man, upon a deed indented, reserve 
to him and to his heirs a certain rent, without any such 
clause put in the deed, that he may distrain, then such 
rent is rent seek; for that he cannot come to have the 
rent, if it be denied, by way of distress ; and if in this 
case he were never seised of the rent, he is without rem- 
edy, as shall be said hereafter. 



102 RENTS. [Book 11. 

~" § 218. Also, if a man seised of certain land grant, by 
a deed poll, or by indenture, a yearly rent to be issuing 
out of the same land, to another in fee, or in fee tail, or 
for term of life, &c., with a clause of distress, &c., then 
this is a rent charge ; and if the grant be without clause 
of distress, then it is a rent seek. And note, that rent 
seek idem est quod reddiius siccus; for that no distress 
is incident unto it. 

§ 219. Also, if a man grant by his deed a rent charge 
to another, and the rent is behind, the grantee may 
chuse, whether he will sue a writ of annuity for this, 
against the grantor, or wistrain for the rent behind, and 
the distress detain until he be paid. But he cannot do, 
or have, both together, &c. For if he recovers by a writ 
of annuity, then the land is discharged of the distress, 
&c. And if hed oth not sue a writ of tinnuity, but dis- 
train for the arrearages, and the tenant sueth his re- 
plevin, and then the grantee avow the taking of the 
distress in the land in a court of record, then is the land 
charged, and the person of the grantor discharged of the 
action of annuity. 

§ 220. Also, if a man would that another should have 
a rent charge issuing out of his land, but would not that 
his person be charged in any manner by a writ of an- 
nuity, then he may have such a clause in the end of his 
deed: Provided always, that this present writing, nor 
any thing therein specified, shall any way extend to 
charge my person by a wHt or an action of annuity, hut 
only to charge my lands and tenements with the yearly 



Chap. XII.) RENTS. 103 

rent aforesaid, &c. Then the land is charged, and the 
person of the grantor discharged. 

§ 221. Also, if one make a deed in this manner, that 
if A. of B.^ be not yearly paid at the feast of Christmas 
for term of his life 20s. of lawful money, that then it 
shall be lawful for the said A. of B. to distrain for this 
in the manor of F. &c. this is a good rent charge; be- 
cause the manor is charged with the rent by way of dis- 
tress,^ and yet the person of him, which makes such 
deed, is discharged in this case of an action of annuity, 
because he doth not grant by his deed any annuity to the 
said A. of B. but granteth only, that he may distrain for 
such annuity, &c. 

§ 222. Also, if a man hath a rent charge to him and 
to his heirs issuing out of certain land, if he purchase 
any parcel of this to him and to his heirs, all the rent 
charge is extinct, and annulled,^ because the rent charge 
cannot by supch manner be apportioned. But if a man, 
which hath a rent service, purchase parcel of the land 

* CJoke says: " Here wanteth words to precede these, viz., que 
it grant al A. de B, Ae» que td A. de B. &c., as it appeareth in the 
original.^ The translation of the passage would then be : **Al80, 
if one make a deed in this manner, that he grants to A. of B. &c., 
that if A. of B.," &c. Hargrave and Butler's notes say : " The 
words here stated by Lord Coke to be in the original, are not in 
Lettou and Machlinia, -nor Rouen." Tomlins suggests that 
Coke refers to some MS. copy. 

M &c. ^ 

» Instead of ** annulled," the translation in Co. Lit. has " the 
annuity also." This is the result of a misprint in late French 
texts. The correction is in accordance with 'the best French 
texts, and is approved in Hargrave and Butlei^*s notes. 



104 . RENTS. [Book II. 

out of which the rent is issuing, this shall not extinguish 
all, but for the parcel. For a rent service in such case 
may be apportioned according to the value of the land. 
But if one holdeth his land of his lord by the service to 
render to his lord yearly at such a feast a horse, a golden 
spear,^ or a clove, [gilliflower,] and such like ; if in this 
case the lord purchase parcel of the land, such service is 
taken away ; because such service cannot be severed nor 
apportioned. 

§ 223. But if a man hold his land of another, by 
homage, fealty, and escuage, and certain rent, if the lord 
purchase part of the land, &c., in this case the rent shall 
be apportioned, as is aforesaid : but yet in this case the 
homage and fealty abide entire to the lord ; for the lord 
shall have the homage and fealty of his tenant for the 
rest of the lands and tenements holden of him, as he had 
before,^ because that such services are not yearly serv- 
ices, and cannot be apportioned, but the escuage may and 
shall be apportioned according to the quantity and rate 
of the land, &c. 

§ 224. Also, if a man hath a rent charge, and his 
father purchase parcel of the tenements charged in fee, 
and dieth, and this parcel descends to his son, who hath 
the rent charge, now this^ charge shall be apportioned 
according to the value of the land, as is aforesaid of rent 

I Instead of "golden spear," the best French texts authorize 
♦* red hawk." 

H Ac. ^ 

a ^rent-}- 



Chap. XII.J RENTS. 105 

service ; because such portion of the land purchased by 
the father cometh not to the son by his own fact, but by 
descent and by course of law. 

§ 225. Also, if there be lord and tenant, and the ten- ) 
ant holds of his lord by fealty and certain rent, and the 
lord grants the rent by his deed to another, &c., reserv- 
ing the fealty to himself, and the tenant attorns to the 
grantee of the rent, now this rent is rent seek to the 
grantee; because the tenements are not holden of the 
grantee^ of the rent, but are holden of the lord who 
reserved to him the fealty. 

§ 226. In the same manner, where a man holds his 
land by homage fealty and certain rent, if the lord grant 
the rent, saving to him the homage such rent after such 
grant is rent seek. But there where lands are holden 
by homage fealty and certain rent, if the lord will grant 
by his deed the homage of his tenant to another, saving 
to him the remnant of his services, and the tenant attorn 
to him according to the form of the grant ; in this case 
the tenant shall hold his land of the grantee, and the 
lord who granted the homage shall have but the rent as 
a rent seek, and shall never distrain for the rent, ^ be- 
cause that homage nor fealty nor escuage cannot be said 
seek, for no such service may be said seek. For he, 
which hath or ought to have homage fealty or escuage of 

1 Instead of *• gjantee," the translation in Co. Lit. has 
" grantor." This is the result of 'a misprint in late French 
texts. Hargrave and Butler's notes approve the amendment. 

3 Here Lettou and Machlinia's edition adds : ** because that 
fealty cannot be severed from homage, and." 



106 RENTS. [Book H. 

his land, may by common right distrain for it, if it be 
behind; for homage fealty and escuage are services, 
by which lands or tenements are holden, &c., and are 
such services as in no manner can be taken but as serv- 
ices, &c. 

~ § 227. But otherwise it is of a rent, which was once 
rent service ; because when it is severed by the grant of 
the lord from the other services, it cannot be said rent 
service, for that it hath not fealty unto it, which is in- 
cident to every manner of rent service ; and therefore it 
is called rent seek. [And the lord cannot grant such a 
rent with a distress, as it is said.] 

§ 228. Also, if a man let to another lands for term of 
life, reserving to him certain rent, if he grant the rent 
to another by his deed, saving to him the reversion of 
the land so letten, &c., such rent is but a rent seek ; be- 
cause that the grantee hath* nothing in the reversion of 
the land, &c. But if he grant the reversion of the land 
to another for term of life, and the tenant attorn, &c., 
then hath the grantee the rent as a rent service ; for that 
he hath the reversion for term of life. 

§ 229. And so it is to be intended, that if a man give 
lands or tenements in tail, yielding to him and to his 
heirs a certain rent, or letteth land for term of life 

1 Instead of **hath," the translation in Co. Lit. has ** had." 
Ritso's Science of the Law, 111, says : ** l»nstead of * because the 
grantee had nothing,* &c., which makes the passage obscure and 
unintelligible, we should read * because the grantee hath noth- 
ing,' &c." Hargrave and Butler's notes, citing Ritso, say : " The 
word ' had ' appears to be here inserted for * hath.' " 



Chap. XII.] RENTS. 107 

rendering a certain rent, if he grant the reversion to 
another, &c., and the tenant attorn, all the rent and 
service pass by this word (reversion) because that such 
rent and service in such case are incident to the rever- 
sion, and pass by the grant of the reversion. But albeit 
that he granteth the rent to another, the reversion does 
not pass by such grant, &c. 

§ 230. [So note the diversity. And so it is holden 
P. 21 E. IV. But it is adjudged 26 of the Book of 
Assises, where the services of tenant in tail were granted, 
that this was a good grant, notwithstanding that the 
reversion remain.]^ 

§ 231. Also, if there be lord, mesne and tenant, and 
the tenant holdeth of the mesne by the service of five 
shillings, and the mesne holdeth over by the service of 
twelve pence, if the lord paramount purchase the ten- 
ancy in fee, then the service of the mesnalty is extinct ; 
because that when the lord paramount hath the tenancy, 
he holdeth of his lord next paramount to him, and if he 
should hold this of him which was mesne, then he should 
hold the same tenancy immediately of divers lords by 
divers services, which should be inconvenient, and the 
law will sooner suffer a mischief than an inconvenience, 
and therefore the seigniory of the mesnalty is extinct. 

§ 232. But in as much as the tenant holds of the 
mesne by five shillings, and the mesne hold but by twelve 
pence, so as he hath more in advantage by four shillings, 
than he pays to his lord, he shall have the said four shil- 

Coke says : ''This is added to Littleton." 



108 RENTS. [Book II. 

lings as a rent seek yearly of the lord which purchased 
the tenancy. 

§ 233. Also, if a man which hath a rent seek, be once 
seised of any parcel of the rent, and after the tenant will 
not pay the rent behind, this is his remedy. He ought 
to go by himself or by others to the lands or tenements 
out of which the rent is issuing, and there demand the 
arrearages of the rent ; and if the tenant deny to pay it, 
this denial is a disseisin [of the rent]. Also, if the 
tenant be not then ready to pay it, this is a denial, which 
is a disseisin [of the rent]. Also if the tenant, nor any 
other man, be remaining upon the lands or tenements to 
pay the rent when he demandeth the arrearages, this is a 
denial in law, and a disseisin in deed, and of such dissei- 
sins he may have an assise of novel disseisin against the 
tenant, and shall recover the seisin of the rent, and hi& 
arrearages and his damages, and the costs of his writ and 
of his plea, &c. And if after such recovery [and exe- 
cution had,] the rent be again denied unto him, then 
he shall have a redisseisin, and shall recover his double 
damages, &c. 

§ 234. And memorandum, that this name assise is 
nomen equivocum; for sometimes it is taken for a jurvj 
for the beginning of the record of an assise of novel dis- 
seisin beginneth thus: assisa venit recognitura, &c., 
which is the same as jurata venit recognitura. And the 
reason is, for that by the writ of assise it is commanded 
to the sheriff, quod faceret duodecim liberos, &c,, legates 
homines de vicineto, dec, videre tenementum illud, et 



CHA.P. XII.] RENTS. 109 

nomina illorum inhreviare, et quod summoneat eos per 
bonos summonitores, quod sint coram justiciariis, dc, 
parati inde facere recognitionem, &c. And because that, 
by such an original, a pannel by force of the same writ 
ought to be returned, &c., it is said in the beginning of 
the record in the assise, assisa venit recognitura, &c. 
Also, in a writ of right, it is commonly said that the ten- 
ant may put himself on God and the great assise. Also 
there is a writ in the Register, which is called a writ de 
magna assisa cligenda. So as this is well proved, that 
this name assise sometimes is taken for a jury, and some- 
times it is taken for the whole writ of assise ; and accord- 
ing to this purpose it is most properly and most com- 
monly taken, as an assise of novel disseisin is taken for 
the whole writ of assise of novel disseisin. And in the 
same manner an assise of common of pasture is taken 
for the whole writ of assise of common of pasture, and 
assise of mort d^ancestor is taken for the whole writ of 
assise of mort d'ancestor, and assise of darrein present- 
ment is taken for the whole writ of darrein present- 
ment. But it seems, that the reason why such writs at 
the beginning were called assises was, for that by every 
such writ it is commanded to the sheriff, quod sum- 
moneat 12, which is as much to say, that he ought to 
summon a jury. And sometimes assise is taken for an 
ordinance, to wit, to put certain things into a certain 
rule and disposition, as an ordinance, which is called^ 
assisa panis et cervisice. 

^ -{ among the ancient statutes y 



110 RENTS. [Book 11. 

§ 235. Also, if there be lord and tenant, and the lord 
granteth the rent of his tenant by deed to another, saving 
to him the other services, and the tenant attometh, that 
is a rent seek, as it is aforesaid. But if the rent be de- 
nied him at the next day of payment, he hath no Remedy, 
because that he had not thereof any possession. But if 
the tenant when he attometh to the grantee, or after- 
wards, will give a penny or a halfpenny to the grantee 
in name of seisin of rent, then if after at the next day of 
payment the rent be denied him, he s^all have an assise 
of 7iovel disseisin. And so it is if a man grant by his 
deed a yearly rent issuing out of his land to another, &c., 
if the grantor then or after pay to the grantee a penny, or 
an halfpenny, in the name of seisin of the rent, then, if 
after the next day of payment the rent be denied, the 
grantee may have an assise, or else not, &c. 

§ 236. Also, of rent seek a man may have an assise of 
mort d' ancestor, a writ of ayel or cosinage, and all other 
manner of actions real, as the case lieth, as he may have 
of any other rent 

§ 237. Also, there be three causes of disseisin of rent 
service, that is to say, rescous, replevin, and enclosure. 
Rescous is, when the lord distraineth in the land holden 
of him for his rent behind, if the distress be rescued from 
him, or if the lord come upon the land, and will distrain, 
and the tenant or another man will not suffer him, &c. 
Replevin is, when the lord hath distrained, and replevin 
is made of the distress by writ or by plaint. Enclosure 
is, if the lands and tenements be so enclosed, that the 



Chap. XIL] RENTS. HI 

lord may not come within the lands and tenements for to 
distrain. And the cause, why such things so done be 
disseisins made to the lord, is for this, that by such 
things the lord is disturbed of the means by which he 
ought to have come to his rent [scil. of the distress.] 

§ 238. And there be four causes of disseisin of a rent 
charge ; scil. rescous, replevin, inclosure, and denial ; for 
denial is a recission of a rent charge, as is said before of 
a rent seek. 

§ 239. And there be two causes of disseisin of a rent 
seek, that is to say, denial and inclosure. 

§ 240. And it seemeth, that there is another cause 
of disseisin of all the three services aforesaid ; that is, 
if the lord is going to the land holden of him for to dis- 
train for the rent behind, and the. tenant hearing this en- 
countreth with him, and forestalleth him the way with 
force and arms, or menaceth him in such form that he 
dare not come to the land to distrain for his rent behind 
' for doubt of death, or bodily hurt, this is a disseisin, for 
that the lord is disturbed of the means whereby he ought 
to come to his rent. And so it is, if, by such forestalling 
or menacing, he that hath rent charge or rent seek is 
forestalled, or dare not come to the land to ask the rent 
behind, &c. 



BOOK THE THIRD. 
CHAPTER I. 

PAECENEES, 

§ 241. Paecenees are of two sorts, to wit, parceners 
according to the course of the common law, and par- 
ceners according to the custom. Parceners after the 
course of the common law are, where a man, or woman 
seized of certain lands or tenements in fee simple or in 
tail, hath no issue but daughters, and dieth, and the ten- 
ements descend to the issues,^ and the daughters enter 
into the lands or tenements so descended to them, then 
they are called parceners, and be but one heir to their 
ancestor.* And they are called parceners; because by 

^ Instead of " issues," the beet French texts authorize " daugh- 
ters." 

* Tomlins says : ** Tlie ordinary copies read this passage thus : 
et quant a files da sont forsque un heire a lour ancestor : upon 
which Sir Edward Ck)ke remarks : * This is false printed ; for the 
original is, et quanqtie files els sont, els sont parceners, et sont 
forsque uu heire a lour auncestor ' ; and the three earliest printed 
copies are, with the exception of fount (make), for sount (are), 
in accordance with this corrected reading. RastelPs translation 
reads, ' then they be called parceners, and be but one heir to 
their ancestor/ which agrees literally with Redman and 
Berthelet." 

112 



Chap. I.J PARCENERS. 113 

the writ, which is called bt-eve de participatione fac- 
ieiida} the law will constrain them, that partition shall 
be made among them. And if there be two daughters to 
whom the land descendeth, then they be called two par- 
ceners; and if there be three daughters, they be called 
three parceners; and four daughters, four parceners; 
and so forth. 

§ 242. Also, if a man seised of tenements in fee sim- 
ple or in fee tail dieth without issue of his body begotten, 
and the tenements descend to his sisters, they are par- 
ceners, as is aforesaid. And in the same manner, where 
he hath no sisters, but the lands descend to his aunts, 
[they are parceners,] &c. But if a man hath but one 
daughter, she shall not be called parcener, but she is 
called daughter and heir, &c. 

§ 243. And it is to be understood, that partition may 
be made in divers manners. One is, when they agree to 
make partition, and do make partition of the tenements ; 
as if there be two parceners to divide between them the 
tenements in two parts, each part by itself in severalty 
and of equal value; and if there be three parceners, 
to divide the tenements in three parts by itself in sever- 
alty, &c. 

§ 244. Another partition there is, viz. to choose, by 
agreement between themselves, certain of their friends, 
to make partition of the lands or tenements in form 

^Coke says: "This is false printed, and should be de parti- 
tione fadenda," Tomlins says : *' However, in the three earliest 
editions it is printed participouiione" 
8 



114 PARCENERS. [Book III. 

aforesaid. And in these cases, after such partition, the 
eldest daughter shall choose first one of the parts so 
divided, which she will have for her part, and then the 
second daughter next after her another part, and then 
the third sister another part, then the fourth another 
part, &c., if so be that there be more sisters, &c., unless 
it be otherwise agreed between them. For it may be 
agreed between them, that one shall have such tenements, 
&c., without any primer* election. 

§ 245. And the part which the eldest sister hath, is 
called in Latin enitia pars. But if the parceners agree, 
that the eldest sister shall make partition of the tene- 
ments in manner aforesaid, and if she do this, then it is 
said, that the eldest sister shall choose last for her part, 
and after every one of her sisters, [&c.] 

§ 246. Another partition or allotment is, as if there 
be four parceners, and after partition of the lands be 
made, every part of the land by itself is written in a 
little scroll, and is covered all in wax in manner of a 
little ball, so as none may see the scroll, and then the 
four balls of wax are put in a hat, to be kept in the hands 
of an indifferent man, and then the eldest daughter shall 
first put her hand into the hat, and take a ball of wax 
with the scroll within the same ball for her part, and 
then the second sister shall put her hand into the hat 
and take another, the third sister the third ball, and the 
fourth sister the fourth ball, &c., and in this case every 
one of them ought to stand to their chance and allotment. 

1 I.e. first. 



Chap. I.] PARCENERS. 115 

§ 247. Also, there is another partition. As if there 
be four parceners, and they will not agree to a partition 
to be made between them, then the one may have a writ 
of partitione faciendd against the other three, or two of 
them may have a writ of partitione facienda against the 
other two, or three of them may have a writ of partitione 
facienda against the fourth, at their election. 

§ 248. And when judgment shall be given upon this 
writ, the judgment shall be thus ; that partition shall be 
made between the parties, and that the sheriff in his 
proper person shall go to the lands and tenements, &c., 
and that he, by the oath of twelve lawful men of his 
bailiwick, &c., shall make partition between the parties, 
and that one part of the lands and tenements shall be 
assigned to the plaintiff or to one of the plaintiffs, and 
another part to another parcener, &c., not making men- 
tion in the judgment of the eldest sister more than of 
the youngest. 

§ 249. And of the partition which the sheriff hath so 
made, he shall give notice to the justices^ under his seal, 
and the seals of every of the twelve, &c. And so in this 
case you may see, that the eldest sister shall not have 
the first election, but the sheriff shall assign to her, her 
part, which she shall have, &c. And it may be that the 
sheriff will assign first one part to the youngest, &c., and 
last to the eldest, &c. 

§ 250. And note, that partition by agreement be- 



116 PARCENERS. [Book III. 

tween parceners may be made by law between them, as 
well by parol without deed, as by deed. 

§ 251. Also, if two meases descend to two parceners, 
and the one mease is worth twenty shillings per annum, 
and the other but ten shillings per annum, in this case 
partition may be made between them in this manner ; to 
wit, the one parcener to have the one mease, and the 
other parcener the other mease ; and she, which hath the 
mease worth twenty shillings per annum, and her heirs, 
flhall pay a yearly rent of five shillings, issuing out of 
the same mease, to the other parcener and to her heirs 
for ever, because each of them should have equality in 
value. 

§ 252. And such partition made by parol is good 
enough ; and that parcener, who shall have the rent, and 
his heirs, may distrain of common right for the rent in 
the said mease worth twenty shillings, if the rent of five 
shillings be behind at any time, in whose hands soever 
the same mease shall come, although there never were 
any writing of this made between them for such a rent. 

§ 253. In the same manner it is of all manner of 
lands and tenements, &c., where such rent is reserved to 
one or to divers parceners upon such partition, &c. But 
such rent is not rent service, but a rent charge of com- 
mon right had and reserved for equality of partition.* 

§ 254. And note, that none are called parceners by 
the common law, but females, or the heirs of females, 
which come to lands or tenements by descent; for if 

M &c. ^ 



Chap. I.] PARCENERS. 117 

sisters purchase lands or tenements, of this they are 
called joint-tenants, and not of parceners. 

§ 255. Also, if two parceners of land in fee simple 
make partition between themselves, and the part of the 
one valueth more than the part of the other, if they were 
at the time of the partition of full age, sc. of twenty-one 
years, then the partition shall always remain, and be 
never defeated. But if the tenements (whereof they 
make partition, be to them in fee tail, and the part of 
the one is better in yearly value than the part of the 
other, albeit they be concluded during their lives to 
defeat the partition ; yet if the parcener, which hath the 
lesser part in value, hath issue and die, the issue may 
disagree to the partition, and enter and occupy in com- 
mon the other part which was alloted to her aunt, and 
so the other^ may enter and occupy in common the other 
part allotted to her sister, &c., as if no partition had been 
made. 

§ 256. Also, if two parceners of lands in fee take 
husbands, and they and their husbands make partition 
between them, if the part of the one be less in value than 
the part of the other, during the lives of their husbands 
the partition shall stand in its force. But albeit it shall 
during the lives of their husbands, yet after the death of 
the husband, that woman which hath the lesser part 
may enter into her sister's part as is aforesaid, and shall 
defeat the partition. 

^Instead of ** other," the best French texts authorize ** aunt." 



118 PARCENERS. [Book III. 

§ 257. But if the partition made between the hus- 
bands^ were thus, that each part at the time of the allot- 
ment made was of equal yearly value, then it cannot 
afterwards be defeated in such cases. 

§ 258. Also, if two coparceners be, and the youngest 
being within the age of twenty-one years, partition is 
made between them, so, as the part which is allotted to 
the youngest is of less value than the part of the other, in 
this case the youngest, during the time of her nonage, 
and also when she cometh to full age, scil. of twenty-one 
years, may enter into the part allotted to her sister, and 
shall defeat the partition. But let such parcener take 
heed when she comes to her full age, that she taketh not 
to her own use all the profits of the lands or tenements 
which were allotted unto her ; for then she agrees to the 
partition at such age, in which case the partition shall 
stand and remain in its force. But peradventure she 
may take the profits of the moiety leaving the profits of 
the other moiety to her sister.^ 

§ 259. And it is to be understood, that when it is 
said, that males or females be of full age, this shall be 
intended of the age of twenty-one years ; for if before 
such age any deed or feoflFment, grant, release, confirma- 
tion, obligation, or other writing, be made by any of 
them, &c., or if any within such age be bailiff or receiver 
to any man, &c., all serve for nothing, and may be 

1 Instead of '* husbands," the best French texts authorize 
**them." 



Chap. I.] PARCENERS. 119 

avoided. Also a man before the said age shall not be 
sworn in an inquest, [&c.] 

§ 260. Also if lands or tenements be given to a man 
in tail, who hath as much land in fee simple, and hath 
issue two daughters and die, and his two daughters make 
partition between them, so as the land in fee simple is 
allotted to the younger daughter in allowance for the 
lands and^ tenenjients in tail, allotted to the elder daugh- 
ter, if, after such partition made, the younger daughter 
alieneth her land in fee simple to another in fee, and 
hath issue a son or daughter and dies, the issue may 
enter into the lands in tail and hold and occupy them 
in purparty with her aunt. And this is for two causes. 
One is, for that the issue can have no remedy for the 
land sold by the mother, because the land was to her in 
fee simple ; and in as much as she is one of the heirs in 
tail, and hath no recompence of that which belongeth to 
her of the lands in tail, it is reason that she hath her 
portion of the lands tailed, and namely when such parti- 
tion doth not make any discontinuance.^ 

[But the contrary is holden M. 10 H. VI., scil that 
the heir may not enter upon the parcener who hath the 
entailed land, but is put to a formendon.Y 

1 Instead of ** lands and/* the best French texts authorize 
" other." 

3 -{ of the tail, as will be said hereafter in the chapter of Dis- 
continuance, y 

* Coke says : '* This is no part, of Littleton, and is contrary to 
law, as appeareth by Littleton himself.** 



120 PARCENERS. [Book III, 

§ 261. Another reason is, for that it shall be ac- 
counted the folly of the eldest sister, that she would 
suffer or agree to such a partition, where she might if 
she would, have had the moiety of the land in fee simple, 
and a moiety of lands entailed, for her part, and so, to 
be sure without loss. 

§ 262. Also, if a man be seised in fee of a carve* of 
land by just title, and he disseise an infant within age 
of another carve, and hath issue two daughters, and 
dieth seised of both carves, the infant being then within 
age, and the daughters enter and make partition, so as 
the one carve is allotted for the part of the one, as per 
case to the youngest in allowance of the other carve 
which is allotted to the purparty of the other, if after* 
wards the infant enter into the carve whereof he was 
disseised upon the possession of the parcener which hath 
the same carve, then the same parcener may enter into 
the other carve which her sister hath, and hold in par- 
cenery with her. But if the youngest alien the same 
carve to another in fee before the entry of the infant, 
and after the infant enter upon the possession of the 
alienee, then she cannot enter into the other carve: be- 
cause by her alienation she hath altogether dismissed her- 
self to have any part of the tenements as parcener. But 
if the youngest before the entry of the infant make a 
lease of this for term of years, or for term of life, or in 
fee tail saving the reversion to her, and after the infant 
enter, there peradventure otherwise it is; because she 
^ I.e. a carucate, or a ploughland. 



Chap. I.] PARCENERS. 121 

hath not dismissed herself of all which was in her, but 
hath reserved to her the reversion and the fee, &c. 

§ 263. Also, if there be three or four coparceners, 
&c., which make partition between them, if the part of 
the one parcener be defeated by such lawful entry, she 
may enter and occupy the other lands with all the other 
parceners, and compel them to make new partition be- 
tween them of the other lands, &c. 

§ 264. Also, if there be two parceners, and the one 
taketh husband, and the husband and wife have issue 
between them, and his wife dieth, and the husband keeps 
himself in as tenant by the curtesy, in this case the par- 
cener which surviveth, and the tenant by the curtesy 
may well partition between them, &c. And if the tenant 
by the curtesy will not agree to make partition, then the 
parcener which surviveth may have against the tenant 
by the curtesy a writ de partitione facienda, &c,, and 
compel him to make partition. But if the tenant by the 
curtesy would have partition to be made between them, 
and the parcener which surviveth will not have this, then 
the tenant by the curtesy cannot have any remedy to 
have partition, &c. For he cannot have a writ of parti- 
tione facienda, because he is no parcener. For such a 
writ lieth for parceners only. And so you may see, that 
a writ of partitione facienda lieth against tenant by the 
curtesy, and yet he himself cannot have the like writ. 



CHAPTER 11. 

PAECENEES BY CUSTOM. 

§ 265. Parceners by the custom are, where a man 
seised in fee simple, or in fee tail, of lands or tenements 
which are of the tenure called gavelkind within the 
county of Kent, and hath issue divers sons and die, such 
lands or tenements shall descend to all the sons by the 
custom, and they shall equally inherit and make parti- 
tion by the custom, as females shall do, and a writ of 
partition lieth in this case as between females. But it 
behoveth in the declaration to make mention of the cus- 
tom. Also such custom is in other places of England, 
and also such custom is in North Wales, &c. 

§ 266. Also, there is another partition, which is of 
another nature and of another form than any of the par- 
titions aforesaid be. As if a man seised of certain lands 
in fee simple hath issue two daughters, and the eldest is 
married, and the father giveth part of his lands to the 
husband with his daughter in frankmarriage, and dieth 
seised of the remnant, the which remnant is of a greater 
yearly value than the lands given in frankmarriage. 

§ 267. In this case, neither the husband nor wife, 
shall have any thing for their purparty of the said rem- 

122 



Chap. H.] PARCENERS BY CUSTOM. 123 

nant, unless they will put their lands given in frank- 
marriage in hotchpot, with the remnant of the land with 
her sister. And if they will not do so, then the youngest 
may hold and occupy the same remnant, and take the 
profits only to herself. And it seemeth, that this word 
(hotchpot) is in English a pudding; for in this pudding 
is not commonly put one thing alone, but one thing with 
other things together. And therefore it behoveth in this 
case to put the lands given in frankmarriage with the 
other lands in hotchpot, if the husband and wife will 
have any part in the other lands. 

§ 268. And this term (hotchpot) is but a term simi- 
litudinary, and is as much to say, as to put the lands in 
frankmarriage, and the other lands in fee simple to- 
gether ; and this is for this intent, to know the value of 
all the lands, scil. of the lands given in frankmarriage, 
and of the remnant which were not given, and then parti- 
tion shall be made in form following. As, put the case, 
that a man be seised of thirty acres of lands in fee sim- 
ple, every acre of the value of twelve pence by the year, 
and that he hath issue two daughters, and the one is cov- 
ert baron, and the father gives ton acres of the thirty 
acres to the husband with his daughter in frankmarriage, 
and dieth seised of the remnant, then the other sister 
shall enter into the remnant, viz. into the twenty acres, 
and shall occupy them to her own use, unless the hus- 
band and his wife will put the ten acres given in frank- 
marriage with the twenty acres in hotchpot, that is to 
fiay together ; and then when the value of every acre is 



124 PARCENERS BY CUSTOM. [Book III. 

known, to wit, what every acre valueth by the year, [and 
it is assessed or agreed between them, that every acre is 
worth by the year]^ twelve pence, then the partition 
shall be made in this manner, viz. the husband and wife 
shall have, besides the ten acres given to them in frank- 
marriage, five acres in severalty of the twenty acres, and 
the other sister shall have the remnant, scU. fifteen acres 
of the twenty acres for her purparty, so as accounting 
the ten acres which the baron and feme have by the gift 
in frankmarriage, and the other five acres of the twenty 
acres, the husband and wife have as much in yearly value 
as the other sister. 

§ 2G9. And so always upon such partition the lands 
given in frankmarriage remain to the donees and to their 
heirs according to the form of the gift : for if the other 
parcener should have any of that which is given in frank- 
marriage, of this would ensue an inconvenience and a 
thing against reason, which the law will not suffer. And 
the reason, why the lands given in frankmarriage shall 
be put in hotchpot, is this. When a man giveth lands or 
tenements in frankmarriage with his daughter, or with 
his other cousin, it is intended by the law, that such gift 
made by this word (frankmarriage) is an advancement^ 
and for advancement of his daughtei^, or of his cousin, 
and namely, when the donor and his heirs shall have no 

1 Tomlins says : '* In Lettou and Machlinia, Rouen, Redman, 
Bwrthelet, and Rastell's translation, the words within brackets 
do not appear. Machlinia and all the copies by Tottyl from. 
1554 retain them." 



Chap. II] PARCENERS BY CUSTOM. 125 

rent nor service of them, but fealty, until the fourth 
degree be past. And for this cause the law is, that she 
shall have nothing of the other lands or tenements des- 
cended to the other parcener, &c., unless she will put the 
lands given in frankmarriage in hotchpot, as is said. 
And if she will not put the lands given in frankmarriage 
in hotchpot, then sh^ shall have nothing of the remnant, 
because it shall be intended by the law, that she is suffi- 
ciently advanced, to which advancement she agreeth and 
holds herself content. 

§ 270. The same law is between the heirs of the 
donees in frankmarriage, and the other parceners, &c., 
if the donees in frankmarriage die before their ancestor, 
or before such partition, &c., as to put in hotchpot, &c.* 

§ 271. And note, that gifts in frankmarriage were 

. by the common law before the statute of Westminster 

II., and have been always since used and continued, &c.* 

§ 272. Also, such putting in hotchpot, &c., is where 

iTomlins, following the text in the Lettou and Machlinia, 
Machlinia, and Rouen editions, translates this section thus : 
*' And the same law is, in this matter, between the donees in 
frankmarriage and the other parceners, as to putting in hotch- 
pot, &o. The same law is between the heirs of the donees in 
frankmarriage and the other parceners, &c., if the donees in 
frankmarriage die before their ancestor, or before such par- 
tition, &c." 

^Tomlins, following the text in the Lettou and Machlinia, 
Machlinia, and Rouen editions, translates this section thus : 
'< Asto putting in hotchpot, &c., of tenements given in frank- 
marriage, this was by common law before the statute of West- 
minster II., and hath always since been used and con- 
tinued, &c" 



126 PARCENERS BY CUSTOM. [Book III. 

the other lands or tenements which were not given in 
frankmarriage descend from the donors in frankmar- 
riage only ; for if the lands shall descend to the daughters 
by the father of the donor, or by the mother of the donor, 
or by the brother of the donor or other ancestor, and not 
by the donor, &c., there it is otherwise; for in such case 
she, to whom such gift in frankmarriage is made, shall 
have her part, as if no gift in frankmarriage had been 
made, because that she was not advanced by them, &c., 
but by another, &c. 

§ 273. Also, if a man be seised of thirty acres of 
land, every acre of equal annual value, and have issue 
two daughters as aforesaid, and giveth fifteen acres 
hereof to the husband with his daughter in frankmar- 
riage, and dies seised of the other fifteen acres, in this 
case the other sister shall have the fifteen acres so de- . 
scended to her alone, and the husband and wife shall not 
^n this case put the fifteen acres given to them in frank- 
marriage into hotchpot ; because the tenements given in 
frankmarriage are of as great and good yearly value as 
the other lands descended, &c. For if the lands given in 
frankmarriage be of equal or of more yearly value than 
the remnant, in vain and to no purpose shall such tene- 
ments given in frankmarriage be put in hotchpot, &c., 
for that she cannot have any of. the other lands 
descended, &c., for if she should have any parcel of the 
lands descended, then she shall have more in yearly value 
than her sister, &c., which the law will not, &c. And as 
it is spoken in the cases aforesaid, of two daughters or of 



Chap. U.] PARCENERS BY CUSTOM. 127 

two parceners, in the same manner it is in the like case, 
where there are more sisters or more parceners, according 
as the case and matter is, &c. 

§ 274. And it is to be understood, that lands or tene- 
ments given in f rankmarriage shall not be put in hotch- 
pot, but where lands descend in fee simple; for of lands 
descended in fee tail partition shall be made, as if no 
such gift in frankmarriage had been made. 

§ 275. Also, no lands shall be put in hotchpot with 
other lands, but lands given in frankmarriage only : for 
if a woman have any other lands or tenements by any 
other gift in tail, she shall never put such lands so given 
in hotchpot, but she shall have her purparty of the rem- 
nant descended, &c., (videlicet) as much as the other 
parcener shall have of the same remnant. 

§ 276. Also, another partition may be made between 
parceners, which varieth from the partitions aforesaid. 
As if there be three parceners, and the youngest will 
have partition, and the oth^r two will not, but will hold 
in parcenary that which to them belongeth, without par- 
tition, in this case, if one part be allotted in severalty to 
the youngest sister, according to that which she ought to 
have, then the others may hold the remnant in parcen- 
ary, and occupy in common without partition, if they 
will, and such partition is good enough. And if, after- 
wards, the eldest or middle parcener will make partition 
between them of that which they hold, they may well do 
this when they please. But where partition shall be 
made by force of a writ of partUione faciendd, there it 



128 PARCENERS BY CUSTOM. [Book III. 

is otherwise ; for there it behoveth, that every parcener 
have her part in severalty, &c. 

More shall be said of parceners in the chapter of 
Joint-tenants, and also in the chapter of Tenants in 
Oonunon. 



CHAPTER III. 

JOINT-TENANTS. 

§ 277. Joint-tenants are, as if a man be seised of 
certain lands or tenements, &c., and infeoffeth two, 
three, four, or more, to have and to bold to them* for 

1 Coke says : '* This agreeth not with the original, for it should 
be .... 6t a lour heires, ou lessa a eux, . . . The error may 
easily be perceived by that which is in print, viz., * by force of 
which feoffment or lease/ &c. ; ergo there must be feoffment or 
lease spoken of, before.*' 

The words suggested— ** and to their heirs, or leaseth to 
them*' — are not authorized by Lettou and Machlinia, Machlinia, 
or Rouen. 

Hargrave and Butler's notes say : ** I think that his addition 
seems requisite to the sense intended to be conveyed by Little- 
ton, as well for the rea.son assigned by Lord Coke, as because 
otherwise Littleton's description of joint-tenancy might be con- 
strued to exclude an estate in fee, which certainly could not be 
his intention. Probably, therefore, the omission of an estate in 
fee was an error in the manuscript from which Littleton was 
first printed. The addition of an estate in fee to Littleton's 
description of joint-tenancy was first introduced by Rastell in 
his edition of 1584, which I was first led to observe by a note I 
was favored with from Mr. Justice Blackstone." 

Tomlins says : ** Those copies of Redman, wliich were in Mr. 
Hargrave's possession, were not seen by him when he wrote this 
note : for the words which import a fee appear in those copies 
of Redman, as well as in Berthelet, Middleton, Powel, Smyth, 
and Tottyl, 1554, which four last seem to be reprints of Berthelet.* 
9 129 



130 JOINT-TENANTS. [Book III. 

term of their lives, or for term of another's life, by force 
of which feoffment or lease they are seised, these are 
joint-tenants. 

§ 278. Also, if two or three, &c. disseise another of 
any lands or tenements to their own use, then the dis- 
seisors are joint-tenants. But if they disseise another 
to the use of one of them, then they are not joint- 
tenants ; but he to whose use the disseisin is made is sole 
tenant, and the others have nothing in the tenancy, but 
are called coadjutors to the disseisin, &c. 

§ 279. And note that disseisin is properly, where a 
man entereth into any lands or tenements where his 
entry is not congeable, and ousteth him which hath the 
freehold, &c. 

§ 280. And it is to be understood, that the nature of 
joint-tenancy is, that he which surviveth shall have only 
the entire tenancy according to such estate as he hath, if 
the jointure be continued, &c. As if three joint-tenants 
be in fee simple, and the one hath issue and dieth, yet 
they which survive shall have the whole tenements, and 
the issue shall have nothing. And if the second joint- 
tenant hath issue and die, yet the third which surviveth 
shall have the whole tenements to him and to his heirs 
for ever. But otherwise it is of parceners ; for if three 
parceners be, and before any partition made the one 
hath issue and dieth, that which to him belongeth shall 
descend to his issue. And if such parcener die without 
issue, that which belongs to her shall descend to her co- 



Chap. III.] JOINT-TENANTS. 131 

heirs, so as they shall have this by descent, and not by 
survivor, as joint-tenants shall have, &c. 

§ 281. And as the survivor holds place between 
joint-tenants, in the same manner it holdeth place be- 
tween them which have joint estate or possession with 
another of a chattel, real or personal. As if a lease of 
lands or tenements be made to many for term of years, 
he, which survives of the lessees, shall have the tene- 
ments to him only during the term by force of the same 
lease. And if a horse, or any other chattel personal, be 
given to many, he which surviveth shall have the horse 
only. 

§ 282. In the same manner it is of debts and duties, 
&c., for if an obligation be made to many for one debt, 
he which surviveth shall have the whole debt or duty. 
And so is it of other covenants and contracts, &c.^ 

§ 283. Also, there may be some joint-tenants, which 
may have a joint estate, and be joint-tenants for term 
of their lives, and yet have several inheritances. As if 
lands be given to two men and to the heirs of their two 
bodies begotten, in this case the donees have a joint 
estate for term of their two lives, and yet they have sev- 
eral inheritances ; for if one of the donees hath issue and 
die, the other which surviveth shall have the whole by 
the survivor for term of his life, and if he which sur- 
viveth hath also issue and die, then the issue of the one 
shall have the one moiety, and the issue of the other 
shall have the other moiety of the land, and they 
shall hold the land between them in common, and they 



132 JOINT-TENANTS. [Book IH. 

are not joint-tenants, but are tenants in common. And 
the cause, why such donees in such case have a joint 
estate for term of their lives, is, for that at the begin- 
ning the lands were given to them two, which words, 
without more saying, make a joint estate to them for 
term of their lives. For if a man will let land to an- 
other by deed, or without deed, not making mention 
'what estate he shall have, and of this make livery of 
seisin, in this case the lessee hath an estate for term of 
Jiis life; and so in as much as the lands were given to 
them, they have a joint estate for term of their lives. 
And the reason why they shall have several inheritances 
is this, in as much as they cannot by any possibility have 
an heir between them engendered, as a man and woman 
may have, &c., the law wills that their estate and inheri- 
tance be such as is reasonable, according to the form and 
effect of the words of the gift, and this is to the heirs 
which the one shall beget of his body by any of his 
wives, [and to the heirs which the other shall beget of 
his body by any of his wives,] &c., so as it behoveth by 
necessity of reason, that they have several inheritances. 
And in this case if^ the issue of one of the donees after 
the death of the donees die, so that he hath no issue alive 
of his body begotten, then the donor or his heir may 

iCoke says : ** This is mistaken in the imprinting, and varieth 
from the original, wliich is, si Vun donie ou Vissue d'un des 
donees.'* 

The suggested addition—** one donee or "—is not authorized by 
any eariy edition. 

Tomlins says : '*This original might have been a MS. copy." 



CHAP. III.J JOINT-TENANTS. 133 

enter into the moiety as in his reversion, &c., although 
the other donee hath issue alive, &c. And the reason is, 
forasmuch as the inheritances be several, &c., the rever- 
sion of them in law is several, &c., and the survivor of 
the issue of the other shall hold no place to have the 
whole. 

§ 284. And as it is said of males, in the same manner 
it is where land is given to two females, and to the heirs 
of their two bodies engendered. 

§ 285. Also, if lands be given to two and to the heirs 
of one of them, this is a good jointure, and the one hath 
a f reehoM,. and the other a fee simple. And if he which 
hath the fee dieth, he which hath the freehold shall have 
the entirety by survivor for term of his life. In the same 
manner it is, where tenements be given to two, and the 
heirs of the body of one of them engendered, the one 
hath a freehold, and the other a fee tail, &c. 

§ 286. Also, if two joint-tenants be seised of an 
estate in fee simple, and the one grants a rent charge by 
his deed to another out of that which belongeth to him, 
in this case during the life of the grantor the rent charge 
is effectual; but after his decease the grant of the rent 
charge is void, as to charge the land, for he which hath 
the land by survivor shall hold the whole land dis- 
charged. And the cause is, for that he which surviveth 
claimeth and hath the land by the survivor, and hath 
not, nor can claim anything by descent from his com- 
panion, &c. But otherwise it is of parceners, for if 
there be two parceners of tenements in fee simple, and 



134: JOINT-TENANTS. [Book III. 

before any partition made the one chargeth that which 
to her belongeth by her deed with a rent charge, &c., and 
after dieth without issue, by which that which belongeth 
to her descends to the other parcener, in this case the 
other parcener shall hold the land charged, &c., because 
she came to this moiety by descent, as heir, &c. 

§ 287. Also, if there be two joint-tenants of land in 
fee simple within a borough, where lands and tenements 
are devisable by testament, and if the one of the said 
two joint-tenants deviseth that which to him belongeth 
by his testament, &c., and dieth, this devise is void. 
And the cause is, for that no devise can take effect till 
after the death of the devisor, and by his death all the 
land presently cometh by the law to his companion, 
which surviveth, by the survivor ; the which he doth not 
claim, nor hath any thing in the land by the devisor, but 
in his own right by the survivor according to the course 
of law, &c., and for this cause such devise is void. But 
otherwise it is of parceners seised of tenements devisable 
in like case of devise, &c., caum qua supra, 

§ 288. Also, it is commonly said, that every joint- 
tenant is seised of the land which he holdeth jointly per 
my et per tout; and this is as much to say, as he is seised 
by every parcel and by the whole, &c., and this is true, 
for in every parcel, and by every parcel, and by all the 
lands and tenements, he is jointly seised with his com- 
panion. 

§ 289. Also, if two joint-tenants be seised of certain 
lands in fee simple, and the one letteth that which to 



Chap. III.] JOINT-TENANTS. 136 

him belongeth to a stranger for term of forty years, and 
dieth before the term beginneth, or within the term, in 
this case after his decease the lessee may enter and oc- 
cupy the moiety let unto him during the term, &c., al- 
though the lessee had never the possession thereof in the 
life of the lessor, by force of the same lease, &c. And 
the diversity between the case of a grant of a rent charge 
[aforesaid, and this case, is this. For in the grant of a 
rent charge by] a joint-tenant, &c., the tenements re- 
main always as they were before, without this, that any 
hath any right to have any parcel of the tenements but 
they themselves, and the tenements are in the same 
plight as they were before the charge, &c. But where a 
lease is made by a joint-tenant to another for term of 
years, &c., presently by force of the lease the lessee hath 
right in the same land, (videlicet) of all that which to 
the lessor belongeth, and to have this by force of the 
same lease during his term. And this is the diversity.^ 

§ 290. Also, joint-tenants (if they will) may make 
partition between them, and 'the partition is good en- 
ough ; but they shall not be compelled to do this by the 
law; but if they will make partition of their own will 
and agreement, the partition shall stand in force. 

§ 291. Also, if a joint estate be made of land to a 
husband and wife and to a third person, in this case the 
husband and wife have in law in their right but the 
moiety, [and the third person shall have as much as the 
husband and wife, viz. the other moiety, &c.] And the 



136 JOINT-TENANTS. [Book m. 

cause is, for that the husband and wife are but one per- 
son in law, and are in like case as if an estate be made to 
two joint-tenants, where the one hath, by force of the 
jointure, the one moiety in law, and the other the other 
moiety, [&c.] In the same manner it is where an estate 
is made to the husband and wife and to two other men, 
in this case the husband and wife have but the third 
part, and the other two men the other two parts, &c., 
causa qua supra. 

More shall be said of the matter touching joint-ten- 
ancy, in the chapter of Tenants in Common, and Tenant 
by Elegit, and Tenant by Statute Merchant. 



CHAPTEK IV. 

TENANTS IN COMMON. 

§ 292. Tenants in common are they which have 
lands or tenements in fee simple, fee tail, or for term of 
life, &c., and they have such lands or tenements by sev- 
eral titles, and not by a joint title, and none of them 
know of this his several, but they ought by the law to 
occupy these lands or tenements in common, and pro in- 
diviso to take the profits in common. And because they 
come to such lands or tenements by several titles, and 
not by one joint title, and their occupation and posses- 
sion shall be by law between them in common, they are 
called tenants in common. As if a man infeoff two 
joint-tenants in fee, and the one of them alien that 
which to him belongeth to another in fee, now the alienee 
and the other joint-tenant are tenants in common; be- 
cause they are in, in such tenements by several titles, for 
the alienee coraeth to the moiety by the feoffment of one 
of the joint-tenants, and the other joint-tenant hath the 
other moiety by force of the first feoffment made to him 
and to his companion [&c.] And so they are in by sev- 
eral titles, that is to say, by several feoffments, &c. 

137 



138 TENANTS IN COMMON. [Book III. 

§ 293. And it is to be understood, that when it is 
said in any book that a man is seised in fee, without 
more saying, it shall be intended, in fee simple; for it 
shall not be intended by this word (in fee) that a man is 
seised in fee tail, unless there be added to it this addi- 
tion, fee tail, &c. 

§ 294. Also, if three joint-tenants be, and one of 
them alien that which to him belongeth to another man 
in fee, in this case the alienee is tenant in common with 
the other two joint-tenants : but yet the other two joint- 
tenants are seised of the two parts [which remain] 
jointly, and of these two parts the survivor between 
them two holdeth place, &c. 

§ 295. Also, if there be two joint-tenants in fee, and 
the one giveth that which to him belongeth to another 
in tail, [and the other giveth that which to him belongs 
to another in tail,] the donees are tenants in common, 
&c. 

§ 296. But if lands be given to two men, and to the 
heirs of their two bodies begotten, the donees have a 
joint estate for term of their lives; and if each of them 
hath issue and die, their issues shall hold in common, 
&c. But if lands be given to two abbots, as to the abbot 
of Westminster and to the abbot of Saint Albans, to 
have and to hold to them and to their successors, in this 
case they have presently at the beginning an estate in 
common, and not a joint estate. And the reason is, that 
for every abbot or other sovereign of a house of religion, 
^before that he was made abbot or sovereign, &c., was but 



Chap. IV.] TENANTS IN COMMON. 139 

as a dead person in law, and when he is made abbot,* he 
is as a man personable in law only to purchase and have 
lands or tenements or other things to the use of his 
house, and not to his own projier use, as another secular 
man may, and therefore at the beginning of their pur- 
chase they are tenants in common ; and if one of them 
die, the abbot which surviveth shall not have the whole 
by survivor, but the successor of the abbot which is dead 
shall hold the moiety in common with the abbot that sur- 
viveth, &c. 

§ 297. Also, if lands be given to an abbot and a secu- 
lar man, to have and to hold to them, viz. to the abbot 
and his successors, and to the secular man to him and to 
his heirs, they have an estate in common, causa qua 
supra. 

§ 298. Also, if lands be given to two, to have and to 
hold, scil, the one moiety to the one and to his heirs, and 
the other moiety to the other and to his heirs, they are 
tenants in common.- 

§ 299. Also, if a man seised of certain lands infeoff 
another of the moiety of the same land without any 
speech of assignment or limitation of the same moiety in 
severalty at the time of the feoffment, then the feoffee 
and the feoffor shall hold their parts of the land in com- 
mon. 

§ 300. And it is to be understood, that in the same 

1 ^ &c. ^ 

2 Tomlins says : '* In Lettou and Machlinia, Machlinia, and 
Rouen, this section is placed immediately after section. 300.'* 



140 TENANTS IN COMMON. [Book IIL 

manner as is aforesaid of tenants in common, of lands 
or tenements in fee simple, or in fee tail, in the same 
manner may it be of tenants for term of life. As if two 
joint-tenants be in fee, and the one letteth to one man 
that which to him belongeth for term of life, and the 
other joint-tenant letteth that which to him belongeth to 
another for term of life, &c., the said two lessees are ten- 
ants in common for their lives, &c. 

§ 301. Also, if a man let lands to two men for term 
of their lives, and the one grants all his estate of that 
which belongeth to him to another, then the other tenant 
for term of life, and he to whom the grant is made, are 
tenants in common during the time that both the lessees 
be alive. 

And memorandum, that in all other such like cases, 
although it be not here expressly moved or specified, if 
they be in like reason, they are in the like law. 

§ 302. Also, if there be two joint-tenants in fee, and 
the one letteth that which to him belongeth to another 
for term of his life, the tenant for term of life during 
his life, and the other joint-tenant which did not let, are 
tenants in common. And upon this case a question may 
arise; as in such case, admit that the lessor hath issue 
and die, living the other joint-tenant his companion, and 
living the tenant for life, the question may be this, 
Whether the reversion, of the moiety^ which the lessor 
hath shall descend to the issue of the lessor, or that the 
other joint-tenant shall have this reversion by the sur- 



CHAP. IV.] TENANTS IN COMMON. 141 

vivor ? Some have said in this case, that the other joint- 
tenant shall have this reversion by the survivor; and 
their reason is this, sciL That when the joint-tenants 
were jointly seised in fee simple, &c., although that the 
one of them make an estate of that which to him be- 
longeth for term of his life, and although that he hath 
severed the freehold of this which to him belongs by the 
lease, yet he hath not severed the fee simple, but the fee 
simple remains to them jointly as it w.as before. And 
so it seeineth to them, that the other joint-tenant which 
surviveth shall have the reversion by the survivor, &c. 
And others have said the contrary, and this is their 
reason, scilicet. That when one of the joint-tenants 
leaseth that which to him belongeth, to another for term 
of his life, by such lease the freehold is severed from the 
jointure. And by the same reason the reversion which 
is dei^nding upon the same freehold is severed from the 
jointure. Also if the lessor had reserved to hiih an an- 
nual rent upon the lease, the lessor only should have had 
the rent, &c., the which is a proof, that the reversion is 
only in him, and that the other hath nothing in the 
reversion, &c. Also if the tenant for term of life were 
impleaded, and maketh default, after default, the lessor 
shall be only received for this, to defend his right, and 
his companion in this case in no manner shall be re- 
ceived, the which proveth the revorsion of the moiety to 
be only in the lessor : and so by consequent, if the lessor 
dieth living the lessee for term of life, the reversion 
flhall descend to the heir of the lessor, and shall not come 



142 TENANTS IN COMMON. [Book ni. 

to the other joint-tenant by the survivor, Ideo quoere. 
But in this case if that joint-tenant which hath the free- 
hold hath issue and dies, living the lessor and the lessee^ 
then it seemeth that the same issue shall have this 
moiety in demesne, and in fee by descent, for that a 
freehold cannot by nature of jointure be annexed to a 
reversion, &c. And it is certain, that he which leased 
was seised of the moiety in his demesne as of fee, and 
none shall have. any jointure in his freehold, therefore 
this shall descend to his issue, &c. Sed qucere. 

§ 303. But if it be so that the law in this case be 
such, that if the lessor die living the lessee, and living 
the other joint-tenant which hath the freehold of the 
other moiety, that the reversion shall descend to the 
issue of the lessor, then is the jointure and title which 
any of them may have by the survivor, and the right of 
the jointure taken away, and altogether defeated for- 
ever. In the same manner it is, if that joint-tenant 
which hath the freehold die, living the lessor and the 
lessee, if the law be so as his freehold and fee which he 
hath in the moiety shall descend to his issue, then the 
jointure shall be defeated forever, 

§ 304. And, if three joint-tenants be, and the one 
release by his deed to one of his companions all the right 
which he hath in the land, then hath he to whom the 
release is made, the third part of the lands by force of 
the said release, and he and his companion shall hold 
the other two parts in jointure. And as to the third part 
which he hath by force of the release, he holdeth that 



Chap. IV.J TENANTS IN COMMON. 143 

third part with himself and his companion in com- 
mon. 

§ 305. And it is to be observed, that sometimes a 
deed of release shall take effect, and enure to put the 
estate of him which makes the release to him to whom 
the release is made, as in the case aforesaid, and also, as 
if a joint estate be made to the husband and wife, and to 
a third person, and the third person release all his right 
which he hath^ to the husband, then hath the husband 
the moiety which the third had, and the wife hath noth- 
ing of this. And if in such case the third release to the 
wife, not naming the husband in the release, then hath 
the wife the moiety which the third had, &c., and the 
husband hath nothing of this but in right of his wife, 
because that in this case the release shall enure to make 
an estate to whom the release is made, of all that which 
belongeth to him which maketh the release, &c. 

§ 306. And in some case a release shall enure to put 
all the right which he who maketh the release hath to 
him to whom the release is made. As if a man seised of 
certain tenements is disseised by two disseisors, if the 
disseisee by his deed release all his* right, &c., to one of 
the disseisors, then he to whom the release is made shall 
have and hold all the tenements to him alone, and shall 
oust his companion of every occupation of this. And 
the reason is, for that the two disseisors were in^ against 
the law, and when one of them happeth the release of 
him which hath right of entry, &c., this right in such 

* -{ the tenements by wrong by them done }- 



144 TENANTS IN COMMON. [Book III. 

case shall vest in him to whom the release is made, and 
he is in like plight as^ he which hath the right [had en- 
tered and] enfeoffed him, &c. And the reason is, for that 
he which before had an estate by wrong, scilicet, by dis- 
seisin, &c., hath now by the release a rightful estate.^ 

§ 307. And in some case a release shall enure by way 
of extinguishment, and in such case such release shall 
aid the joint-tenant to whom the release was not made, 
as well as him to whom the release was made. As if a 
man be disseised, and the disseisor makes a feoffment to 
two men in fee, if disseisee release by his deed to one of 
the feoffees, this release shall enure to both the feoffees, 
for that the feoffees have an estate by the law, scilicet, 
by feoffment, and not by wrong done to any, &c. 

§ 308. In the same manner it is, if the disseisor 
maketh a lease to a man for term of his life, the remain- 
der over to another in fee, if the diseissee release to the 
tenant for term of life all his right, &c. this release shall 
enure as well to him in the remainder, as to the tenant 
for term of life. And the reason is, for that the tenant 
for life cometh to his estate by course of law, and there- 
fore this release shall enure and take effect by way of 
extinguishment of the right of him which release th, &c. 
And by this release the tenant for life hath no ampler 
nor greater estate than he had before the release made 
him, and the right of him which releaseth is altogether 
extinct. And inasmuch as this release cannot enlarge 



Chap. IV.J TENANTS IN COMMON. 14,5 

the estate of the tenant for life, it is reason that this 
release shall enure to him in the remainder, &c. 

More shall be said of releases in the chapter of Re- 
leases. 

§ 309. Also, if two parceners be, and the one alieneth 
that which to her belongeth to another, then the other 
parcener and the alienee are tenants in common. 

§ 310. Also [note, that] tenants in common may be 
by [title of] prescription, as if the one and his ancestors, 
or they whose estate he hath in one moiety have holden 
in common the same moiety with the other tenant which 
hath the other moiety, and with his ancestors, or with 
those whose state he had undivided,* time out of mind 
of man. And divers other manners may make and 
cause men to be tenants in common, which are not here 
expressed [&c.]. 

§ 311. Also, in some case tenants in common ought 
to have of their possession several actions, and in some 
cases they shall join in one action. For if two tenants 
in common be, and they be disseised, they must have* 
two assises, and not one assise ; for each of them ought 
to have one assise of his moiety, &c. And the reason is, 
for that the tenants in common were seised, &c., by sev- 
eral titles. But otherwise it is of joint-tenants; for if 
twenty joint-tenants be, and they be disseised, they 
shall have in all their names but one assise, because they 
have not^ but one joint title. 

M Ac. V 

^ •{ against the disseisor y 

* Ritso*s Science of the Law, 111, says that '* instead of * be- 
10 



146 TENANTS IN COMMON. [Book III. 

§ 312. Also, if three joint-tenants be, and one release 
to one of his fellows all the right which he hath, &c., and 
after the other two be disseised of the whole, &c., in this 
case the two others shall have several assises, &;c., in this 
manner, soil, they shall have in both their names an 
assise of the two parts, &c., because the two parts they 
held jointly at the time of the disseisin. And as to the 
third part, he to whom the release was made, ought to 
have of that an assise in his own name, for that he (as 
to the same third part) is thereof tenant in common, &c., 
because he cometh to this third part by force of the re- 
lease, and not only by force of the jointure. 

§ 313. Also, to the suing of actions which touch the 
realty, there be diversities between parceners which are 
in by divers descents, and tenants in common. For if a 
man seised of certain land in fee hath issue two daugh- 
ters [and dieth, and the daughters enter, &c., and each 
of them hath issue a son], and die without partition* 
made between them, by which the one moiety descends 
to the son of the one parcener, and the moiety descends 

cause they have not but one joint title ; ' we should read, 
* because they liave but one joint title ; ' " and Hargrave and 
Butler's not< s, citing Ritso, say that •* * not ' should be left out, 
as this mode of expression, though good in French, does not 
suit the idiom of the English language." 

Yet double negatives and the like liad not become obsolete in 
Coke*s time, and tiiey are not likely to mislead any reader of 
Littleton. 

1 The best French texts authorize the following translation of 
this passage : ** For if two parceners, seised of certain land in 
fee, have issue two sons and die without partition/' &c. 



Chap. VI.J TENANTS IN COMMON. 147 

to the son of the other parcencer, and they enter and 
occupy in common and be disseised, in this case they 
shall have in their two names one assise, and not two 
assises. And the cause is, for that albeit they come in 
by divers descents, &c., yet they are parceners, and a writ 
of partition lieth between them. And they are not par- 
ceners, having regard or respect only to the seisin and 
possession of their mothers, but they are parceners 
rather, having respect to the estate which descended 
from their grandfather to their mothers, for they cannot 
be parceners if their mothers w^ere not parceners before, 
&c. And so in this respect and consideration, scil. as to 
the first descent which was to their mothers, they have a 
title in parcenary, the which makes them parceners. 
And also they are but as one heir to their common an- 
cestor, scil. to their grandfather, from whom the land 
descended to their mothers. And for these causes, be- 
fore partition between them, &c., they shall have one* 
assise, although they come in by several descents.^ 

§ 314. Also, if there be two tenants in commoti of 
certain lands in fee, and they give this land to a man in 
tail, or let it to one for term of life, rendering to them 
yearly a certain rent, and a pound of pepper, and a hawk 
or a horse, and they be seised of this service, and after- 
wards the whole rent is behind, and they distrain for 

* Instead of "one/' the translation in Co. Lit. has" an." 
Ritso's Science of the Law, 111, suggests the amendment ; and 
Hargrave and Butler's notes, citing Ritso, say that " *an' seems 
to he here inserted for * one.' " 



148 TENANTS IN COMMON. [Book UI. 

this, and the tenant maketh reseous. In this case as to 
the rent and pound of pepper they shall have two assises, 
and as to the hawk or the horse but one assise. And the 
reason why they shall have two assises as to the rent and 
pound of pepper is this, insomuch as they were tenants 
in common in several titles, and when they made a gift 
in tail, or lease for life, saving to them the reversion, 
and rendering to them a certain rent, &c., such reserva- 
tion is incident to their reversion; and for that their 
Teversion is in common, and by several titles, as their 
possession was before the rent and other things which 
may be severed, and were reserved unto them upon the 
.gift, or upon the leas^, which are incidents by the law to 
their reversion, such things so reserved were of the 
nature of the I'eversion. And in as much as the reversion 
is to them in common by several titles, it behoveth that 
the rent and the pound of pepper, which may be severed, 
be to them in common, and by several titles. And of 
this they shall have two assises, and each of them in his 
assise shall make his plaint of the moiety of the rent, 
and of the moiety of the pound of pepper. But of the 
hawk or of the horse, which cannot be severed, they shall 
have but one assise, for a man cannot make a plaint in 
an assise of the moiety of a hawk, nor of the moiety of a 
horse, &c. In the same manner it is of other rents and 
of other services which tenants in common have in gross 
by divers titles, &c. 

§ 315. Also as to actions personals, tenants in com- 
mon may have such action personals jointly in all their 



Chap. IV.J TENANTS IN COMMON. I49 

names, as of trespass, or of offences which concern their 
tenements in common, as for breaking their houses, 
breaking their closes, feeding, wasting, and defouling 
their grass, cutting their woods, for fishing in their pis- 
cary, and such like. In this case tenants in common 
shall have one action jointly, and shall recover jointly 
their damages, because the action is in the personalty, 
and not in the realty, [&c.]. 

§ 316. Also, if two tenants in common make a lease 
of their tenements to another for term of years, render- 
ing to them a certain rent yearly during the term, if the 
rent be behind, &c., the tenants in common shall have an 
action of debt against the lessee, and not divers actions, 
for that the action is in the personalty. 

§ 317. [But in avowry for the said rent they ought to 
sever, for this is in the realty, as the assise is above. ]^ 

§ 318. Also, tenants in common may well make par- 
tition between them if they will, but they shall not be 
compelled to make partition by the law; but if they 
make partition between themselves by their agreement 
and consent, such partition is good enough, as is ad-' 
judged in the Book of Assises. 

§ 319. Also, as there be tenants in common of lands 
and tenements, &c., as aforesaid, in the same manner 
there be^ of chatties reals and personals. As if a lease be 
made of certain lands to two men for term of twenty 

^ Coke says : '*An addition to Littleton, albeit it be consonant 
to law." 
' •{ possessions and properties )- 



150 TENANTS IN COMMON. [Book m. 

years, and when they be of this possessed, the one of the 
lessees grant that which to him belongeth to another dur- 
ing the term, then he to whom the grant is made and the 
other shall hold and occupy in common. 

§ 320. Also, if two^ have jointly the wardship of the 
body and land of an infant within age, and the one of 
them grant to another that which to himself belongeth 
of the same ward, then the grantee, and the other which 
did not grant, shall have and hold this in common, &c. 

§ 321. In the same manner it is of chattels personals. 
As if two have jointly,^ by gift or buying, a horse or 
an ox, &c., and the one grant that which to him belongs 
[of the same horse or ox] to another, the grantee, and 
the other which did not grant, shall have and possess 
such chattels personals in common.^ And in such cases, 
where divers persons have chattels real or personal in 
common,^ and by divers titles, if the one of them dieth, 
the others which survive shall not have this, as survivor, 
but the executors of him which dieth shall hold and oc- 
cupy this with them which survive, as their testator did 
or ought to have done in his lifetime, &c., because that 
their titles and rights in this were several, &c. 

§ 322. Also, in the case aforesaid, as if two have an 

estate in common for term of years, &c., the one occupy 

all, and put the other out of possession and occupation, 

* •{ joint-tenants }- 

2 Instead of ** jointly," the best French texts authorize ** joint 
estate." 

M &c. ^ 



Chap. IV.] TENANTS IN COMMON. 151 

he which is put out of occupation shall have against the 
other a writ of ejectione firmoB of the moiety, &c. 

§ 323. In the same manner it is where two hold the 
wardship of lands or tenements during the nonage of an 
infant, if the one oust the other of his possession, he 
which is ousted shall have a writ of ejectment de gard of 
the moiety, &c., because that these things are chattels 
reals, and may be apportioned and severed, &c., but no* 
action of trespass, (videlicet) Quare clausum suum 
f regit, et herbam suam, &c., conculcavit, et consumpsit, 
4&C.J et hujusmodi actiones, &c,, the one cannot have 
against the other, for that each of them may enter and 
occupy in common, &c., per my et per tout, the lands and 
tenements which they hold in common. But if two be 
possessed of chattels personals in common by divers 
titles, as of a horse, an ox, or a cow, &c., if the one take 
the whole to himself out of the possession of the other, 
the other hath no other remedy but to take this from hira 
who hath done to him the wrong to occupy in common, 
&c., when he can see his time, &c. In the same manner 
it is of chattels reals, which cannot be severed, as in the 
case aforesaid, where two be possessed of the wardship 
of the body of an infant within age, if the one taketh the 
infant out of the possession of the other, the other hath 
no remedy by an action by the law, but to take the in- 
fant out of the possession of the other when he sees his 
time.^ 

1 ^ such Y 
X ^ &c. ^ 



152 TENANTS IN COMMON. [Book m. 

§ 324. Also, when a man* will shew a feoffment 
made to him, or a gift in tail, or a lease for life of any 
lands or tenements, there he shall say by force of which 
feoffment, gift, or lease, he was seised, &c., but where 
one will plead a lease or grant made to him of a chattel 
real or personal, there he shall say by force of which he 
was possessed, &c. 

More shall be said of tenants in common in the chap- 
ters of Releases^ and Tenant by Elegit 

* -{ in pleading }■ 

* \ and Confirmations y 



CHAPTER V. 

ESTATES UPON CONDITION. 

§ 325. Estates which men have in lands or tenements 
[upon condition] are of ^two sorts, viz. either they have 
estate upon condition in deed, or upon condition in law, 
[&c.] Upon condition in deed is, as if a man by deed 
indented enfeoffs another in fee [simple], reversing to 
him and his heirs yearly a certain rent, payable at one 
feast or divers feasts per annum, on condition that if the 
rent be behind, &c., that it shall be lawful for the feoffor 
and his heirs into the same lands or tenements to enter, 
&e.* And if it happen the rent to be behind by a week 
after any day of payment of it, or by a month after any 
day of payment of it, or by half a year, &c., that then it 
shall be lawful to the feoffor and his heirs to enter, &c. 
In these cases, if the rent be not paid at such time, or 
before such time limited and specified within the condi- 
tion comprised in the indenture, then may the feoffor or 
his heirs enter into such lands or tenements, and them in 
his former estate to have and hold, and the feoffee quite 
to oust thereof. And it is called an estate upon condi- 

* •{ or if land be aliened to another man in fee, rendering 
unto him certain rent, &o. y 

153 



154 ESTATES UPON CONDITION. [Book III. 

tion, because that the state of the feoflFee is defeasible, if 
the condition be not performed, &c. 

§ 326. In the same manner it is, if lands be given in 
tail, or let for term of life or of years, upon^ condition, 
&c. 

§ 327. But where a feoffment is made of certain 
lands reserving a certain rent, [&c.,] upon such condi- 
tion, that if the rent be behind, that it shall be lawful 
for the feoffor and his heirs to enter,^ and to hold the 
land until he be satisfied or paid the rent behind, &c., in 
this case if the rent be behind, and the feoffor or his 
heirs enter, the feoffee is not altogether excluded from 
this, but the feoffor shall have and hold the land, and 
thereof take the profits, until he be satisfied of the rent 
behind; and when he is satisfied, then maiy the feoffee 
reenter into the same land, and hold it as he held it be- 
fore. For in this case the feoffor shall have the land but 
in manner as for a distress, until he be satisfied of the 
rent, &c., though he take the profits in the meantime [to 
his own use,] &c. 

§ 328. Also, divers words (amongst others) there be, 
which by virtue of themselves make estates upon condi- 
tion ; one is the word sub conditioned as if A. enfeoff B. 
of certain land, to have and to hold to the said B. and 

his heirs, upon condition that the said B. and his heirs 

< 

1 ■{ such )- 

2 { into the land held of them )- 

* Instead of *' s\th conditioney' the best French texts authorize 
simply •* condition." 



Chap. V.] ESTATES UPON CONDITION. I55 

do pay or cause to be paid to the aforesaid A. and his 
heirs yearly such a rent, &c. In this case without any 
more saying the feoffee hath an estate upon condition. 

§ 329. Also, if the words* were such, Provided al- 
ways, that the aforesaid B. do pay or cause to be paid to 
the aforesaid A. such a rent, &c., or these, So that the 
said B. do pay or cause to be paid to the said A. such a 
rent, &c., in these cases without more saying, the feoffee 
hath but an estate upon condition ; so as if he doth not 
perform the condition, the feoffor and his heirs may 
€nter, &c. 

§ 330. Also, there be other words in a deed which 
cause the tenements to be conditional. As if upon such 
feoffment a rent be reserved to the feoffor, &c., and after- 
ward [this word] is put into the deed. That if it happen 
the aforesaid rent to be behind in part or in all,^ that 
then it shall be lawful for the feoffor and his heirs to 
enter, &c., this is a deed ujx)n condition. 

§ 331. But there is a diversity between this word si 
contingat, &c,, and the words next aforesaid, &c. For 
these words, si contingat, &c., are nought worth to such 
a condition, unless it hath these words following. That 
it shall be lawful for the feoffor and his heirs to enter, 
&c. But in the cases aforesaid, it is not necessary by 
the law to put such clause, scilicet, that the feoffor and 
his heirs may enter, &c., because they may do this by 

1 Instead of *' words," the best French texts authorize ** oon- 
ditions." 
M Ac. }^ 



156 ESTATES UPON CONDITION. [Book in. 

force of the words aforesaid, for that they contain in 
themselves^ a condition, scilicet^ that the feoffor and his 
heirs may enter, &c., yet it is commonly used in all such 
cases aforesaid, to put the^ clauses in the deeds, scilicet, 
if the rent be behind, &c., that it shall be lawful to the 
feoffor and his heirs to enter, &c. And this is well 
done, for this intent, to declare and express to the com- 
mon people, who are not learned in the law, of the man- 
ner ^ and condition of the feoffment, &c. As if a man 
seised of land* letteth the same land to another by deed 
indented for term of years, rendering to him a certain 
rent, it is used to be put into the deed, that if the rent 
be behind at the day of payment, or by the space of a 
week or a month, &c., that then it shall be lawful to the 
lessor to distrain, &c., yet the lessor may distrain of 
common right for the rent behind, &c., though such 
words were not put into the deed, &c. 

§ 332. Item, if a feoffment be made upon such con- 
dition, that if the feoffor pay to the feoffee at a cer- 
tain day, &c., 40Z. of money, that then the feoffor may 
re-enter, &c., in this case the feoffee is called tenant in 
mortgage, which is as much to say in French as mort 
gage, and in Latin mortuum vadium. And it seemeth 
that the cause why it is called mortgage is, for that it^is 

1 -{ in law } 

* Instead of **the," the best French texts authorize "such." 

8 Instead of ** manner," the best French texts authorize 
•* matter." 

* -{ as of freehold )- 



Chap. V.J ESTATES UPON CONDITION. 167 

doubtful whether the feoffor will^ pay at the day limited 
such sum or not : and if he doth not pay^ then the land 
which is put in pledge upon condition for the payment 
of the money, is taken from him for ever, and so dead 
[to him upon condition, &c. And if he doth pay the 
money, then the pledge is dead] as to the tenant, &c. 

§ 333. Also, as a man may make a feoffment in fee 
in mortgage, [so a man may make a gift in tail in mort- 
gage,] and a lease for term of life, or for term of years 
in mortgage. [And] all such tenants are called tenants 
in mortgage, according to the estates which they have in 
the land, &c. 

§ 334. Also, if a feoffment be made in mortgage 
upon condition that the feoffor shall pay such a sum at 
such a day, &c., as is between them by their deed in- 
dented, agreed, and limited, although the feoffor dieth 
before the day of payment, &c., yet if the heir of the 
feoffor pay the same sum of money at the same day to 
the feoffee, or tender to him the money, and the feoffee 
refuse to receive it, then may the heir enter into the land, 
and yet the condition is, that if the feoffor shall pay such 
a sum at such a day, &c., not making mention in the 
condition of any payment to be made by his heir, but for 
that the heir hath interest of right in the condition, &c., 
and the intent was but that the money should be paid at 
the day assessed, &c., and the feoffee hath no more loss, 
if it be paid by the heir, than if it were paid by the 
father, &c., therefore if the heir pay the money, or 

Instead of " will," the best French texts authorize ** can.*' 



158 ESTATES UPON CONDITION. [Book III. 

tender the money at the day limited, &c., and the other 
refuse it, he may enter, &c- But if a stranger of his own 
head, who hath not any interest, &c., will tender the 
aforesaid money to the feoffee at the day appointed, the 
feoffee is not bound to receive it. 

§ 335. And be it remembered that in such case, 
where such tender of the money is made, &c., and the 
feoffee refuse to receive it, by which the feoffor or his 
heirs enter, &c., then the feoffee hath no remedy by the 
common law to have this money, because it shall be 
counted his own folly that he refused the money, when a 
lawful tender of it was made unto him. 

§ 336. Also, if a feoffment be made on this condition, 
that if the feoffee pay to the feoffor at such a day be- 
tween them limited, twenty poimds, then the feoffee 
shall have the land to him and to his heirs ; and if he fail 
to pay the money at the day appointed, that then it shall 
be lawful for the feoffor or his heirs to enter, &c., and 
afterwards, before the day appointed, the feoffee sell the 
land to another, and of this maketh a feoffment to him, 
in this case if the second feoffee will tender the sum of 
money at the day appointed to the feoffor, and the feof- 
for refusoth the same, &c., then the second feoffee hath 
an estate in the land clearly without condition. And 
the reason is, for that the second feoffee hath an interest 
in the condition for the safeguard of his tenancy. And 
in this case it seems that if the first feoffee after such 
sale of the land, will tender the money at the day ap- 
pointed, &c., to the feoffor, this shall be good enough for 



Chap. V.] ESTATES UPON CONDITION. 159 

the safeguard of the estate of the second feoffee, because 
the first feoffee was privy to the condition, and so the 
tender of either of them two is good enough, &c. 

§ 337. Also, if a feoffment be made upon condition, 
that if the feoffor pay a certain sum of money to the 
feoffee, then it shall be lawful to the feoffor and his heirs 
to enter :^ in this case if the feoffor die before the pay- 
ment made, and the heir will tender to the feoffee the 
money, such tender is void, because the time within 
which this ought to be done is past. For when the con- 
dition is, that if the feoffor pay the money to the feoffee, 
&c., this is as much to say, as if the feoffor during his 
life pay the money to the feoffee, &c., and when the feof- 
for dieth, then the time of the tender is past. But other- 
wise it is where a day of payment is limited, and the 
feoffor die before the day, then may the heir tender the 
money as is aforesaid, for that the time of the tender was 
not past by the death of the feoffor. Also it seemeth, 
[that] in such case where the feoffor dieth before the 
day of payment, if the executors of the feoffor tender the 
money to the feoffee at the day of payment, this tender 
is good enough ; and if the feoffee refuse it, the heirs of 
the feoffor may enter, &c. And the reason is, for that 
the eexcutors represent the person of their testator, &c. 

§ 338. And note, that in all cases of condition for 
payment of a certain sum in gross touching lands or tene- 
ments, if lawful tender be once refused, he which ought 



160 ESTATES UPON CONDITION. [Book UI. 

to tender the money is of this quit, and fully discharged 
for ever afterwards. 

§ 339. Also, if the feoffee in mortgage before the day 
of payment which should be made to him, makes, his 
executors and die, and his heir entereth into the land as 
he ought, &c., it seemeth in this case that the feoffor 
ought to pay the money at the day appointed to the exe- 
cutors, and not to the heir of the feoffee, because the 
money at the beginning trenched to the feoffee in man- 
ner as a duty, and shall be intended that the estate was 
made by reason of the lending of the money by the feof- 
fee, or for some other duty; and therefore the payment 
shall not be made to the heir, [as it seemeth, but the 
words of the condition may be such, as the payment shall 
be made to the heir]. As if the condition were, that if 
the feoffor pay to the feoffee or to his heirs such a sum at 
such a day, &c., there, after the death of the feoffee, if 
he dieth before the day limited, the payment ought to be 
made to the heir at the day appointed, &c. 

§ 340. Also, upon such case of feoffment in mort- 
gage, a question hath been demanded in what place the 
feoffor is bound to tender the money to the feoffee at the 
day appointed, &c. And some have said, upon the land 
so holden in mortgage, because the condition is depend- 
ing upon the land. And they have said, that if the feof- 
for be [upon the land there] ready to pay the money to 
the feoffee at the day set, and the feoffee be not then 
there, then the feoffor is quit and excused of the pay- 
ment of the money, for that no default is in him. But 



Chap; V.] ESTATES UPON CONDITION. 161 

it seemetli to some that the law is contrary, and that de- 
fault is in him ; for he is bound to seek the feoffee if he 
be then in any other place within the realm of England. 
As if a man be bound in an obligation of twenty pounds 
upon condition endorsed upon the same obligation, that 
if he pay to him to whom the obligation is made at such 
a day ten pounds, then the obligation of twenty pounds 
shall lose his force, and be holden for nothing; in this 
case it behoveth him that made the obligation to seek 
him to whom the obligation is made if he be in England, 
and at the day set to tender unto him the said ten pounds, 
otherwise he shall forfeit the simi of twenty pounds com- 
prised within the obligation [&c.]. And so it seemeth 
in the other case, &c. And albeit that some have said 
that the condition is depending upon the land, yet this 
proves not that the making of the condition to be per- 
formed, ought to be made upon the land, &c., no more 
than if the condition were that the feoffor at such a day 
shall do some special corporal service to the feoffee, not 
flaming the place where such corporal service shall be 
done. In this case the feoffor ought to do such corporal 
service at the day limited to the feoffee, in what place 
soever of England that the feoffee be, if he will have 
advantage of the condition, &c. So it seemeth in the 
other case. And it seems to them that it shall be more 
properly said, that the estate of the land is depending 
upon the condition, than to say that the condition is d^- 
wending upon the land, &c. Bed quosre, &c, 

§ 341. But if a feoffment in fee be made, reserving 
II 



162 ESTATES UPON CONDITION. [Book HI. 

to the feoffor a yearly rent, and for default of payment, 
a re-entry, &c., in this case the tenant needeth not to 
tender the rent, when it is behind, but upon the land ; 
because this is a rent issuing out of the land, which is a 
rent seek. For if the feoffor be seised once of this rent, 
and after he cometh upon the land, &c., and the rent is 
denied him, he may have an assise of novel disseisin. 
For albeit he may enter by reason of the condition 
broken, &c., yet he may choose either to relinquish his 
entry, or to have an assise, &c. And so there is a diver- 
sity, as to the tender of a rent which is issuing out of the 
land, and of the tender of another sum in gross, which is 
not issuing out of any kind. 

§ 342. And therefore it will be a good and sure thing- 
for him that will make such feoffment in mortgage, to 
appoint an especial place where the money shall be paid, 
and the more special that it be put, the better it is for the 
feoffor. As if A. enfeoff B. to have to him and to his 
heirs, upon such condition, that if A. pay to B. on the 
feast of Saint Michael the archangel next coming, in the 
cathedral church of St. Paul's in London, within four 
hours next before the hour of noon of the same feast, at 
the rood loft [of the rood] of the north door within the 
same church, or at the tomb of Saint Erkenwald, or at 
the door of such a chapel, or at such a pillar, within the 
same church, that then it shall be lawful to the afore- 
said A. and his heirs to enter, &c., in this case he needeth 
not to seek the feoffee in another place, nor to be in any 
other place, but in the place comprised in the indenture, 



Chap. V.] ESTATES UPON CONDITION. 163 

nor to be there longer than the time specified in the same 
indenture, to tender or pay the money to the feoffee, &c. 

§ 343. Also, in such case, where the place [of pay- 
ment] is limited, the feoffee is not bound to receive the 
payment in any other place but in the same place so lim- 
ited. But yet if he do receive the payment in another 
place, this is good enough and as strong for the feoffor, 
as if the receipt had been in the same place so limited, 
&c. 

§ 344. Also in the case of feoffment in mortgage, if 
the feoffor payeth to the feoffee a horse, or a cup of 
silver, or a ring of gold, or any such other thing in full 
satisfaction of the money, and the other receiveth it, this 
is good enough, and as strong as if he had received the 
sum of money, though the horse or the other thing were 
not of the twentieth part of the value of the sum of 
money, because that the other hath accepted it in full 
satisfaction. 

§ 345. Also if a man enfeoff another^ upon condition, 
that he and his heirs shall render to a stranger and to his 
heirs a yearly rent of twenty shillings, &c., and if he or 
his heirs fail of payment thereof, that then it shall be 
lawful to the feoffor and his heirs to enter, this is a good 
condition : and yet in this case, albeit such annual pay- 
ment be called in the indenture a yearly rent, this is not 
properly a rent. For if it should be a rent, it must be 
rent service, rent charge, or a rent seek, and it is not any 
of these. For if the stranger were seised of this, and 

1 -{ in fee }• 



164 ESTATES UPON CONDITION. [Book III. 

after it were denied him, he shall never have an assise of 
this, because that it is not issuing out of any tenements, 
and so the stranger hath not any remedy, if such yearly 
rent be behind in this case, but that the feofforor his heirs 
may enter, &c. And yet if the feoffor or his heirs enter 
for default of payment, then such rent is taken away for- 
ever. And so such a rent is but as a pain set upon the 
tenant and his heirs, that if they will not pay this accord- 
ing to the form of the indenture, they shall lose their 
land by the entry of the feoffor or his heirs for default 
^f payment. And in this case it seemeth that the feoffee 
.and his heirs ought to seek the stranger and his heirs, if 
they be within England, [because there is no place lim- 
ited where the payment shall be made, and] for that 
such rent is not issuing out of any land, &c. 

§ 346. And here note two things : one is, that no rent 
(which is properly said a rent) may be reserved upon 
any feoffment, gift, or lease, but only to the feoffor, or 
to the donor, or to the lessor, or to their heirs, and in no^ 
manner it may be reserved to any strange person. But 
if two joint-tenants make a lease by deed indented, 
reserving to one of them a certain yearly rent, this is 
good enough to him to whom the rent is reserved, for 
that he is privy to the lease, and not a stranger to the 
lease, &e. 

§ 347. The second thing is, that no entry nor re- 
entry (which is all one) may be reserved or given to any 
person, but only to the feoffor, or to the donor, or to the 

» -{ other Y 



Chap. V.] ESTATES UPON CONDITION. I65 

lessor, or to their heirs: and such re-entry^ cannot be 
given to any other person. For if a man letteth land to 
another for term of life by indenture, rendering to the 
lessor and to his heirs a certain rent, and for default of 
payment a re-entry, &c., if afterward the lessor by a deed 
granteth the reversion of the land to another in fee, and 
the tenant for term of life attorn, &c., if the rent be after 
behind, the grantee of the^ reversion may distrain for 
the rent, because that the rent is incident to the rever- 
sion ; but he may not enter into the land, and oust the 
tenant, as the lessor might have done, or his heirs, if the 
reversion had been continued in them, &c. And in this 
case the entry is taken away forever ; for the grantee of 
the reversion cannot enter, caixsd qua supra. And the 
lessor nor his heirs cannot enter ; for if the lessor might 
-enter, then he ought to be in his former state, &c., and 
this may not be, because he hath aliened from him the 
reversion. 

§ 348. Also if lord and tenant be, and the tenant 
make a lease for term of life, rendering to the lessor and 
his heirs such an annual rent, and for default of pay- 
ment a re-entry, &c., if after the lessor dieth without 
heir during the life of the tenant for life, whereby the 
reversion cometh to the lord by way of escheat, and after 

* Instead of ** re-entry," the best French texts authorize 
•* rent." 

* Inste4id of " the/* the translation in Co. Lit. has ** a." Har- 
grave and Butler's notes say that '* * a ' seems to be here printed 
by mistake for 'the.'" The French texts, including the one 
printed in Co. Lit., authorize **the." 



166 ESTATES UPON CONDITION. [Book III. 

the rent of the tenant for life is behind, the lord may 
distrain the tenant for the rent behind; but he may not 
enter into the land by force of the condition, &c., because 
that he is not heir to the lessor,^ &c. 

§ 349. Also if land be granted to a man for term of 
two years, upon such condition, that if he shall pay to 
the grantor within the said two years forty marks, then 
he shall have the land to him and to his heirs, &c., in this 
case if the grantee enter by force of the grant, without 
any livery of seisin made unto him by the grantor, and 
after he payeth the grantor the forty marks within the 
two years, yet he hath nothing in the land but for term 
of two years, because no livery of seisin was made unto 
him at the beginning; — for if he should have a freehold 
and fee in this case, because he hath performed the con- 
dition, then he should have a freehold by force of the 
first grant, where no livery of seisin was made of this, 
which would be inconvenient,^ &c. But if the grantor 
had made livery of seisin to the grantee by force of the 
grant, then should the grantee have the freehold and the 
fee upon the same condition. 

§ 350. Also, if land be granted to a man for term of 
five years, upon condition that if he pay to the grantor 
within the two first years forty marks, that then he shall 
have fee, or otherwise but for term of the five years, and 

1 Instead of " lessor," the best French texts authorize '* feof- 
for." In old black letter tlie two words are almost indis- 
tinguishable. 

« Instead of ** inconvenient," the best French texts authorize 
'* against reason." 



Chap. V.] ESTATES UPON CONDITION. 167 

livery of seisin is made to him by force of the grant, now 
he hath a fee simple conditional, &c. And if in this case 
the grantee do not pay to the grantor the forty marks 
within the first two years, then immediately after the 
said two years past, the fee and the freehold is, and shall 
be adjudged, in the grantor; because that the grantor 
cannot after the said two years presently enter upon the 
grantee, for that the grantee hath yet title by three years 
to have and occupy the land by force of the same grant. 
And so because that the condition of the part of the 
grantee is broken, and the grantor cannot enter, the law 
will put the fee and the freehold in the grantor. For if 
the grantee in this case makes waste, then after the 
breach of the condition, &c., and after the two years, the 
grantor shall have his writ of waste. And this is a good 
proof then, that the reversion is in him, &c. 

§ 351. But in such cases of feoffment upon condition, 
where the feoffor may lawfully enter for the condition 
broken, &c., there the feoffor hath not the freehold before 
his entry, &c. 

§ 352. Also, if a feoffment be made upon such con- 
dition, that the feoffee shall give the land to the feoffor, 
and to the wife of the feoffor, to have and to hold to them 
and to the heirs of their two* bodies engendered, and for 
default of such issue, the remainder to the right heirs of 
the feoffor. In this case, if the husband dieth, living the 
wife, before any estate in tail made unto them, &c., then 
ought the feoffee by the law to make an estate to the wife 
as near the condition, and also as near to the intent of 



168 ESTATES UPON CONDITION. [Book IIL 

the condition, as he may make it : that is to say, to let tho 
land to the wife for tenn of life without impeachment 
of waste, the remainder after her^ decease to the heirs of 
the body of her husband on^ her begotten, and for de- 
fault of such issue, the remainder to the right heirs of 
the husband. And the cause why the lease shall be in 
this case to the wife alone without impeachment of waste 
is, for that the condition is, that the estate shall be made 
to the husband and to his wife in tail. And if such 
estate had been made in the life of the husband, then 
after the death of the husband she should have had an 
estate in tail, which estate is without impeachment of 
waste. And so it is reason, that as near as^ a man can 
make the estate to the intent of the condition, &c., that it 
should be made, &c., albeit she cannot have estate in tail^ 
as she might have had if the gift in tail had been made to 
her husband and to her in the life of her husband, &c. 

§ 353. Also, in this case, if the husband and wife 
have issue, and die before the gift in tail made to them^ 
&c., then the feoffee ought to make an estate to the issue, 
and to the heirs of the body of his father and his mother 
begotten, and for default of such issue, &c., the remain- 
der to the right heirs of the husband, &c. And the same 
law is in other like cases : and if such a feoffee will not 

1 Instead of '* her," the translation in Co. Lit. has ** his " ; 
but Hargrave and Butler's notes say that '* here the sense re- 
quires the word * her * instead of * his/ as it seems." 

* Instead of "on." the best French texts authorize "and." 

* Instead of " as near as," the best French texts authorize ** if 
afterwards." 



Chap. V.] ESTATES UPON CONDITION. 169 

make^ such estate, &c., when he is reasonably required 
by them, which ought to have the estate by force of the 
condition, &c., then may the feoffor or his heirs enter.^ 

§ 354. Also, if a feoffment be made upon condition, 
that^ the feoffee shall re-enfeoff* many men, to have 
and to hold to them and to their heirs for ever, and all 
they which ought to have estate die before any estate 
made to them, then ought the feoffee to make estate to 
the heir of him which survives of them, to have and to 
hold to him and to the heirs of him which surviveth.^ 

§ 355. Also, if a feoffment be made upon condition 
to enfeoff another, or to make a gift in tail to another, 
&c., if the feoffee before the performance of the condi- 

1 ** Instead of ** make," the translation in Ck). Lit. has ** take.' 
Ritso's Science of the Law, 112, points out that '* we should 
read *and if such feoffee will not make such estate/ &c., viz,, 
to those who ought to have the estate by force of the condition." 
Hargrave and Butler*s notes, citing Ritso, say : ** This word 
' take ' is not agreeable to the sense of the passage ; neither 
docs it express the meaning of the French word faire used by 
Littleton, which signifies * make ' in English." 

M Ac. }► 

8 Here the translation in Co. Lit. inserts '* if." Ritso's Science 
of the Law, 112, says: *'We should read 'upon condition that the 
feoffee shall re-enfeoff,' &c., and not * upon condition that 
'* if " the feoffee ishall re-enfeoff,' which is unintelligible." Har- 
grave and Butler's notes, citing Ritso, say : ** The sense as well 
as the original French seems to require that this passage should 
be read as if the word * if * had been omitted." Tomlins says : 
•* It should certainly be rejected, although it has the authority 
of the three oldest editions. " 

^ Instead of *' re-enfeoff," almost all the French texts authorize 
" enfeoff." 



170 ESTATES UPON CONDITION. [Book IIL 

tion, enfeoff a stranger, or make a lease for life, then 
may the feoffor and his heirs enter, &e., because he hath 
disabled himself to perform the condition, inasmuch as 
he hath made an estate to another, &e. 

§ 356. In the same manner it is, if the feoffee, before 
the condition performed, letteth the same land to a 
stranger for term of years ; in this case the feoffor and 
his heirs may enter, &c., because the feoffee hath dis- 
abled him to make an estate of the tenements according 
to that which was in the tenements, when the estate 
thereof was made nnto him. For if he will make an 
estate of the tenements according to the condition, &c., 
then may the lessee for years enter and oust him to 
whom the estate is made, &c., and occupy this during his 
term.^ 

§ 357. And many have said, that if such feoffment be 
made to a single man upon the same condition, and be- 
fore he hath performed the same condition he taketh 
wife, then the feoffor and his heirs maintenant may 
enter ; because, if he hath made an estate according to 
the condition, and after dieth, then the wife shall be en- 
dowed, and may recover her dower by a writ of dower, 
&c. ; and so, by the taking of a wife, the tenements be 
put in another plight than they were at the time of the 
feoffment upon condition, for that then no such wife was 
dowable, nor should be endowed by the law, &c. 

§ 358. In the same manner it is, if the feoffee charge 
the land by his deed with a rent charge before the per- 



Chap. V.] ESTATES UPON CONDITION. 171 

forraance of the condition, or be bound in a statute 
staple, or statute merchant, in these cases the feoffor and 
his heirs may enter, &c., causa qua supra. For whoso- 
ever cometh to the lands by the feoffment of the feoffee, 
they^ ought to be liable, and put in execution by force of 
the statute merchant, or of the statute staple. Quaere.^ 
But when the feoffor or his heirs, for the causes afore- 
said, shall have entered, as it seems they ought, &c, then 
all such things, which before such entry might trouble 
or encumber the land so given upon condition, &c., as to 
the same land, are altogether defeated. 

§ 359. Also, if a man make a deed of feoffment to 
another, and in the deed there is no livery of seisin unto 
bim by force of the same condition, &c., and when the 
feoffor will make deed, he makes livery of seisin unto 
him upon certain condition;^ in this case nothing of the 
tenements passeth by the deed, for that the condition is 
not comprised within the deed, and the feoffment is in 
like force as if no such deed had been made. 

§ 360. Also, if a feoffment be made upon this condi- 
tion, that the feoffee shall not alien the land to any, this 
condition is void ; because, when a man is enfeoffed of 
lands or tenements, he hath power to alien them to any 
person by the law. For if such a condition should be 
good, then the condition should oust him of all the power 

1 Instead of "they," the best French texts authorize ** then the 
tenements." 
« Instead of *• giwBre," the best French texts have " &c." 
» \ Sec. )■ 



172 ESTATES UPON CONDITION. [Book III. 

which the law gives him, which should be against reason^ 
and therefore such a condition is void. 

§ 361. But if the condition be such, that the feoffee 
shall not alien to such a one, naming his name, or to any 
of his heirs, or of the issues of such a one, &c., or the 
like, which conditions do not take away all power of 
alienation from the feoffee, &c., then such condition is 
good. 

§ 362. Also, if lands be given in tail upon condition, 
that the tenant in tail nor his heirs^ shall not alien in fee, 
nor in tail, nor for term of another's life, but only for 
their own lives, &c., such condition is good. And the 
reason is, for that when he maketh such alienation and 
discontinuance of the entail, he doth contrary to the in- 
tent of the donor, for which the statute of Westminster 
II., cap. 1, was made, by which statute the estates in tail 
are ordained. 

§ 363. For it is proved by the words comprised in 
the same statute,^ that the will of the donor in such cases 
shall be observed, and when the tenant in tail maketh 
such discontinuance, he doth contrary to that, &c. And 
also, in estates in tail of any tenements, when the rever- 
sion of the fee simple, [or the remainder of the fee sim- 
ple] is in other persons, when such discontinuance is 
made, then the fee simple^ in the remainder is discon- 
tinued. And because tenant in tail shall do no such 

i ^ &c. ^ 

* -{ tlmt the intent of the making of the same statute was }■ 

• •< in the reversion or the fee simple )- 



Chap. V.] ESTATES UPON CONDITION. 173 

thing against the profits [of his issues] and good right, 
such condition is good, as is aforesaid, [&c.] 

§ 364. Also, a man may give lands in tail upon such 
condition, that if the tenant in tail or his heirs alien in 
fee or in tail, or for term of another man's life, &c., and 
also that if all the issue coming of the tenant in tail be 
dead without issue, that then it shall be lawful for the 
donor and for his heirs to enter, &c. And by this way 
the right of the tail may be saved, after discontinuance, 
to the issue in tail, if there be any ; so as by way of en- 
try of the donor or of his heirs, the tail shall not be de- 
feated by such condition : [QucBre hoc.'] And yet if the 
tenant in tail in this case, or his heirs make any discon- 
tinuance, he in the reversion, or his heirs, after that the 
tail is determined for default of issue, &c., may enter 
into the land by force of the same condition, and shall 
not be compelled to sue a writ of formedon in the 
reverter. 

§[ 365. Also, a man cannot plead in any action, that 
an estate was made in fee, or in fee tail, or for term of 
life, upon condition, if he doth not vouch a record of this, 
or show a writing under seal, proving the same condition. 
For it is a common learning, that a man by plea shall 
not defeat ftny estate of freehold by force of any such 
condition, unless he showeth the proof of the condition 
in writing &c., unless it be in some special cases, &c. 
But of chattels reals, as of a lease for years, or of grants 
of wards made by guardians in chivalry, and such like, 
&c., a man may plead that such leases or grants were 



174 ESTATES UPON CONDITION. [Book III^ 

made upon condition, &c., without showing any writing 
of the condition. So in the same manner a man may do 
of gifts and grants of chattels personals and of contracts 
personals, &c. 

§ 366. Also, albeit a man cannot in any action plead 
a condition which toucheth and concerns a freehold, 
without showing writing of this, as is aforesaid, yet a 
man may be aided upon such a condition by the verdict 
of twelve men taken at large in an assise of novel dts- 
seisin, or in any other action, where the justices will take 
the verdict of twelve jurors at large. As put the case, a 
man seised of certain land in fee letteth the same land to 
another for term of life without deed, upon condition to 
render to the lessor a certain rent, and for default of pay- 
ment a re-entry, &c., by force whereof the lessee is seised 
as of freehold, and after, the rent is behind, by which the 
lessor entereth into the land, and after, the lessee arraign 
an assise of novel disseisin of the land against the lessor, 
who pleads that he did no wrong nor disseisin, and upon 
this the assise is taken ; in this case the recognitors of the 
assise may say and render to the justices their verdict at 
large upon the whole matter, as to say, that the defend- 
ant was seised of the land in his demesne as of fee, and 
so seised, let the same land to the plaintiff for term of his 
life, rendering to the lessor such a yearly rent payable 
at such a feast, &c., upon such condition, that if the rent 
were behind at any such feast at which it ought to be 
paid, then it should be lawful for the lessor to enter, &c., 
by force of which lease the plaintiff was seised in his 



Chap. V.J ESTATES UPON CONDITION. 175 

deraesne as of freehold, and that afterwards the rent waa 
behind at such a feast,^ &c., by which the lessor entered 
into the land upon the possession of the lessee, and 
prayed the discretion of the justices, if this be a disseisin 
done to the plaintiff or not f then for that it appeareth 
to the justices, that this was no disseisin to the plaintiff, 
insomuch as the entry of the lessor was congeable on 
him, the justices ought to give judgment that the plain- 
tiff shall not take anything by his writ of assise. And so 
in such case the lessor shall be aided, and yet no writing 
was ever made of the condition. For as well as the 
jurors may have conusance [of the lease, they also as 
well, may have conusance] of the condition which was 
declared and rehearsed upon the lease. 

§ 367. In the same manner it is of a feoffment in fee, 
or a gift in tail, upon condition, although no writing 
were ever made of it.^ And as it is said of a verdict at 
large in an assise, &c., in the same manner it is of a writ 
of entry founded upon a disseisin ; and in all other ac- 
tions where the justices will take the verdict at large,* 
there where such verdict at large is made, the manner of 
the whole entry is put in the issue, &c. 

§ 368. Also, in such case where the inquest may give 
their verdict at large, if they will take upon them the 

1 •( or year }■ 

« ^ and >- 

M &c. J- 

* According to the best French texts, the remainder of tliis sec- 
tion should read : *' whereby such verdict at large maketh the 
nature of the matter put in the issue." 



176 ESTATES UPON CONDITION. [Book III. 

knowledge of the law upon the matter, they may give 
their verdict generally, as is put in their charge; as in 
the case aforesaid they may well say, that the lessor did 
not disseise the lessee, if they will, &c. 

§ 369. Also, in the same case, if the case were such, 
that after that, that the lessor had entered for default of 
payment, &c., that the lessee had entered upon the lessor, 
and him disseised ; in this case if the lessor arraign an 
assise against the lessee, the lessee may bar him of the 
assise; for he may plead against him in bar, how the 
lessor, who is plaintiff, made a lease to the defendant for 
term of his life, saving the reversion to the plaintiff, 
which is a good plea in bar, insomuch as he acknowledgety 
the reversion to be to the plaintiff. In this case thn 
plaintiff hath no matter to aid himself, but the conditior^ 
made upon the lease, and this he cannot plead, because* 
he hath not any writing of this : and inasmuch as he can- 
not answer the bar, he shall be barred. And so in thin 
case you may see that a man is disseised, and yet he shall 
not have assise. And yet if the lessee be plaintiff and 
the lessor defendant, he shall bar the lessee by verdict of 
the assise, &c. But in this case where the lessee is de- 
fendant, if he will not plead the said plea in bar, but 
plead nul tort, nul diss, then the lessor shall recover by 
assise, causa qua supra. 

§ 370. And for that such conditions are most com- 
monly put and specified in deeds indented, somewhat 
shall be here said to thee, my son, of an indenture, and 



Chap. V.] ESTATES UPON CONDITION. 177 

of a deed poll concerning^ conditions. And it is to be 
understood, that if the indenture be bipartite, or tripar- 
tite, or quadripartite, all the parts of the indenture are 
but one deed in law, and every part of the indenture is of 
as great force and effect, as all the parts together be. 

§ 371. And the making of an indenture is in two 
manners. One is to make them in the third person ; an- 
other is to make them in the first person. The making 
in the third person is as in this form. 

This indenture made between B. of P. of the one part, 
and V. of D. of the other part, witnesseth, that the said 
R, of P. hath granted, and by this present charter in- 
dented confirmed to the aforesaid V, of D, such land, &c. 
To have and to hold, \_&c,,^ upon condition, &c. In wit- 
ness whereof the parties aforesaid [to these presents^ 
interchangeably have put their seals. Or thus : in wit- 
ness whereof to the one part of this indenture remaining 
with the said V. of D., the said R. of P, hath put his 
seal, and to the other part of the same indenture remain- 
ing with the said R, of P. the said V. of D. hath put his 
seal. Dated, &c. 

Such an indenture is called an indenture made in the 
third person, because the verbs, &c., are in the third 
person. And this form of indenture is the most sure 
making, because it is most commonly used, &c. 

§ 372. The making of an indenture in the first person 
is as in this form. To all Christian people to whom these 

1 Instead of ** concerning," the',best French texts authorize 
** containing." 
12 



178 ESTATES UPON CONDITION. [Book in. 

presents indented shall come, A. of B. sends greeting in 
our Lord Ood everlasting. \Know ye me to have given, 
granted, and by this my present deed indented confirmed 
to C. of D. such land, £c. Or thus : Know all men pres- 
ent and to come, that I, A. of B. have given, granted, and 
by this my present deed indented confirmed to C. of D. 
such land, &c. To have [and to hold,] £c., upon condi- 
tion following, <6c. In witness whereof, as well I the 
said A. of B, as the aforesaid C. of D. to these indentures 
have interchangeably put our seals. Ox thus : In witness 
whereof I [the aforesaid A.] to the one pari of this in- 
denture have put my seal, and to the other part of the 
same indenture the said (7. of D. hath put his seal, &c. 

§ 373. And it seemeth that such indenture [which 
is] made in the first person is as good in law as the in- 
denture made in the third person, when both parties have 
put to this their seals ; for if in the indenture made in 
the third person, or in the first person, mention be made, 
that the grantor only hath put his seal, and not the gran- 
tee, then is the indenture only the deed of the grantor. 
But where mention is made, that the grantee hath put his 
seal to the indenture, &c., then is the indenture as well 
the deed of the grantee as the deed of the grantor. So is 
it the deed of them both, and also each part of the inden- 
ture is the deed of both parties in this case. 

§ 374. Also, if an estate be made by indenture to one 
for term of his life, the remainder to another in fee upon 
a certain condition, &c., and if the tenant for life have 
put his seal to the part of the indenture, and after dieth. 



Chap. V.] ESTATES UPON CONDITION. 179 

and he in the remainder entereth into the land by force 
of his remainder, &,c., in this ease he is tied to perform 
all the conditions comprised in the indenture, as the ten- 
ant for life ought to have done in his lifetime, and yet 
he in the remainder never sealed any part of the inden- 
ture. But the cause is, for that in as much as he entered 
and agreed to have the lands by force of the indenture, 
he is bound to perform the conditions within the same in- 
denture, if he will have the land, &c. 

§ 375. Also if a feoffment be made by deed poll upon 
condition,* and for that the condition is not performed 
the feoffor, it hath been a question if the feoffor may 
poll, if the feoflfee brings an action for this entry against 
.the feoffor, it hath been a question if the feofffor may 
plead the condition by the said deed poll against the 
feoflFee. And some have said he cannot, inasmuch as it 
neems unto them, that a deed poll, and the property of the 
same deed, belongeth to him to whom the deed is made, 
and not to him which maketh the deed. And in as much 
as such a deed doth not appertain to the feoffor, it seems 
tmto them that he cannot plead it.^ And others have said 
the contrary, and have showed divers reasons. One is, if 
the case were such, that in an action between them, if the 
feoffee plead the same deed, and show it to the court, in 
this case insomuch as the deed is in court, the feoffor 
may show to the court, how in the deed there are divers 
conditions to be performed [of the part of the feoffee. 



180 ESTATES UPON CONDITION. [Book III. 

&c., and because they were not performed] he entered, 
&c., and to this he shall be received. By the same reason 
when the feoffor hath the deed in hand, and show this to 
the court, he shall well be received to plead it, &o., and 
namely when the feoffor is privy to the fait, for he must 
be privy to the deed, when he makes the deed, &c. 

§ 376. Also, if two men do a trespass to another, who 
Teleases to one of them by his deed all actions personals, 
iind notwithstanding sueth an action of trespass against 
the other, the defendant may well show that the trespass 
was done by him and by another his fellow, and that the 
plaintiff by his deed (which he showeth forth,) released 
to his fellow all actions personals, and demand the judg- 
ment, &c., and yet such deed belongeth to his fellow, and 
not to him. But because he may have advantage by the 
deed, if he will show the deed to the court, he* may well 
plead this, &c. By the same reason [may the feoffor] in 
the other case, when he^ ought to have advantage by the 
condition [comprised] within the deed poll.^ 

§ 377. Also, if the feoffee* granteth the deed to the 

feoffor, such grant shall be good, and then the deed and 

the property thereof belongeth to the feoffor, &c. And 

when the feoffor hath the deed in hand, and is pleaded*^ 

to the court, it shall be rather intended, that he cometh to 

1 ^ therefore } 

< Instead of '* he," the best French texts authorize '* the 
feoffor." 

M &c. }► 

* -{ giveth or }• 

* Instead of ** is pleaded,*^ the best French texts authorize 
•' pleadeth it." 



Chap. V.] ESTATES UPON CONDITION. 181 

the deed by lawful means, than by a wrongful mean : and 
so it seemeth unto them, that the feoffor may well plead 
such deed poll, which compriseth the condition, &c., if he 
hath the same in hand.^ Ideo semper qiujere de dubiis, 
quia per rationes pervenitur ad legitimam rationem, (Sec. 
§ 378. Estates which men have upon condition in 
law, arc such estates which have a condition by the law 
to them annexed, albeit that it be not specified in writ- 
ing. As if a man grant by his deed to another the office 
of parkership of a park, to have and occupy the same 
office for term of his life, the estate which he hath in the 
office is upon condition in law, to wit, that the parker 
shall well and lawfully keep the park, and shall do that 
which to such office belongeth to do, or otherwise it shall 
be lawful to the grantor and his heirs to oust him, and to 
grant it to another, if he will, &c. And such condition as 
is intended by the law to be annexed to anything, is as 
strong as if the condition were^ put in writing. 

§ 379. In this manner it is of grants of the offices of 
steward, constable, beadlery, bailiwick, or other offices, 
&c. But if such office be granted to a man, to have and 
to occupy hy himself or his deputy, then if the office be 
occupied by him or his deputy, as it ought by the law 
to be occupied, this sufficeth for him, or otherwise the 
grantor and his heirs may oust the grantee,* as is afore- 
said. 

M&c. ^ 

« ^ set or }• 

* Instead of the **grantee," the best French texts authorize 
•• him." 



182 • ESTATES UPON CONDITION. [Book IH. 

§ 380. Also, estates of lands or tenements may be 
made upon condition in law, albeit upon the estate made 
there was not any mention or rehearsal made of this con- 
dition. As put the case, that a lease be made to the hus- 
band and wife, to have and to hold to them during the 
coverture between them ; in this case they have an estate 
for term of their two lives upon condition in law, soil, if 
one of them die, or that there be a divorce between them, 
then it shall be lawful for the lessor and his heirs to 
enter, &c. 

§ 381. And that they have an estate for term of their 
two lives is proved thus : every man that hath an estate of 
freehold in any lands or tenements^ either he hath an 
estate in fee, or in fee tail, or for term of his own life, or 
for term of another man's life ; and by such a lease they 
have a freehold, but they have not by this grant fee, nor 
fee tail, nor for term of another's life, ergo, they have an 
estate for term of their own lives, but this is upon condi- 
tion in law, in form aforesaid : and in this case if they 
shall do waste, the feoffor shall have a writ of waste 
against them, supposing by his writ, qudd tenet ad termi- 
num vitoe, (&c., but in his count he shall declare how and 
in what manner the lease was made. 

§ 382. In the same manner it is, if an abbot make a 
lease to a man,* to have and to hold to him during the 
time that the lessor is abbot ; in this case the lessee hath 

iHere the translation in Co. Lit. inserts ** for years." Ritso's 
Science of the Law, 112, says : '* The words ' for years ' are an in- 
terpolation, and involve a contradiction in terms." Harfz^rave 



Chap. V.] ESTATES UPON CONDITION. 183 

an estate for term of his own life : but* this is upon condi- 
tion in law, soil, that if the abbot resign, or be deposed, 
that then it shall be lawful for his successor to enter, &e. 
§ 383. Also, a man may see in the Book of Assises, 
an. 38 E. III., [pi. 3,] a plea of assise in this form fol- 
lowing, scil. Ai> assise of novel disseisin was sometime 
brought against A., who pleaded to the assise, and it was 
found by verdict, that the ancestor of the plaintiff de- 
vised his lands to be sold by the defendant, who was his 
executor, and to make distribution of the money for his 
soul ; and it was found, that presently after the death of 
the testator, one tendered to him a certain sum of monej* 
for the lands, but not to the value ; and that the executor 
afterwards held the lands in his own hands two years, to 
the intent to sell the same dearer to some other ; and it 
was found, that he had all the time taken the profits of 
the lands to his own use, without doing anything for the 
soul of the deceased, &c. Mowbray, [Justice, said,] the 
executor in this case is bound by the law to make the sale 
as soon as he may after the death of his testator, and it is 
found that he refused to make sale, and so there was a 
default in him; and so by force of the devise he was 
bound to put all the profits coming of the lands to the use 
of the dead, and it is found that he took them to his own 
use, and so another default in him. Wherefore it was 

and Butler's notes, citing Ritso, say: *' It seems that the text 
should be read as if the words * for years ' had heen omit.ed. . . 
It is observable that the original French does not warrant the 
insertion.'* 



184 ESTATES UPON CONDITION. [Book III. 

adjudged, that the plaintiff should recover.* And so it 
appeareth by the said judgment, that by force of the said 
devise, the executor had no estate nor power in the lands^ 
but upon condition in law. 

§ 384. [And many other things there are of estates 
upon condition in law,] and in such cases he needed not 
to have showed any deed rehearsing the condition, for 
that the law itself purporteth the condition, &c. 

Ex paucis dictis intendere plurima possis. 

More shall be said of conditions in the next chapter,* 
in the chapter of Releases, and in the chapter of Discon- 
tinuance. 

i[&c.] 

< Instead of ** the next chapter," the best French texts author- 
ize *' the chapter of Descents which toll Entries." 



CHAPTEE VI. 

DESCENTS WHICH TOLL ENTRIES. 

§ 385. Descents which toil entries are in two man- 
ners, to wit, where the descent is in fee, or in fee tail. 
Descents in fee which toll entries are, as if a man seised 
of certain lands or tenements is by another disseised, and 
the disseisor hath issue, and dieth of such estate seised^ 
now the lands descend to the issue of the disseisor by 
course of law, as heir unto him. And because the law 
cast the lands or tenements upon the issue by force of the 
descent, so as the issue cometh to the lands by course of 
law, and not by his own act, the entry'of the disseisee is 
taken away, and he is put to sue a writ of entrie sur dis- 
seisin against the heir of the disseisor, to recover the 
land.i 

§ 386. Descents in tail which take away entries are, 
as if a man be disseised, and the disseisor giveth the 
same land to another in tail, and the tenant in tail hath 
issue and dieth of such estate seised, and the issue enter ; 
in this case the entry of the disseisee is taken away, and 
he is put to sue against the issue of the tenant in tail a 
writ of entrie sur disseisin. 

§ 387. And note, that in such descents which take 

185 



186 DESCENTS. [Book III. 

away entries, it behoveth that a man die seised in his 
demesne as of fee, or in his demesne as of fee tail. For a 
dying seised for term of life, or for term of another 
man's life, doth never take away an entry.* 

§ 388. Also, a descent of a reversion, or of a remain- 
der, doth not take away an entry.* So as in those cases 
which take away entries by force of descents, it behoveth 
that he dieth seised of fee and freehold at the time of his 
decease, [or of fee tail and freehold at the time of his 
death,] or otherwise such descent doth not take away an 
entry. 

§ 389. Also, as it is said of descents which descend to 
the issue of them which die seised, &c., the same law is 
where they have no issue, but the lands descend to the 
brother, sister, uncle, or other cousin of him which dieth 
seised.^ 

§ 390. Also, if there be lord and tenant, and the ten- 
ant be disseised, and the disseisor alien to another in fee, 
and the alienee die without issue, and the lord enter as 
in his escheat ; in this case the disseisee may enter upon 
the lord, because the lord cometh not to the land by 
descent, but by way of escheat. 

§ 391. Also, if a man be seised of certain land in fee, 

or in fee tail, upon condition to render certain rent, or 

upon other condition ; albeit such tenant seised in fee, or 

in fee tail, dieth seised, yet if the condition be broken in 

M &c. ). 

M &c. 1^ 



Chap. VI.] DESCENTS. 187 

their lives, or after their decease, this shall not take away 
the entry of the feoffor or donor, or of their heirs, for 
that the tenancy is charged with the condition, and the 
state of the tenant is conditional, in whose hands soever 
that the tenancy cometh, &c. 

§ 392. Also, if such tenant upon condition be dis- 
seised, and the disseisor die thereof seised, and the land 
descend to the heir of the disseisor, now the entry of the 
tenant upon condition, who was disseised, is taken away. 
Yet if the condition be broken, the feoffor or the donor 
which made the estate upon condition, or their heirs, 
may enter, caixsa qua supra, 

§ 393. Also, if a disseisor die seised, &c., and his heir 
€nter, &c., who endoweth the wife of the disseisor of the 
third part of the land, &c., in this case as to this part 
which is assigned to the wife in dower, presently after 
the wife entereth, and hath the possession of the same 
third part, the disseisee may lawfully enter upon the 
possession of the wife into the same third part. And the 
reason is, for that when the wife hath her dower, she 
shall be adjudged in immediately by her husband, and 
not by the heir ; and so, as to the freehold of the same 
third paii:, the descent is defeated.^ And so you fnay 
see, that before the endowment the disseisee could not 
^nter into any part, &c., and after the endowment he may 
enter [upon the wife,] &c., but yet he cannot enter upon 
the other two parts, which the heir of the disseisor hath 
by the descent.^ 
M &c. ^ 



188 DESCENTS. [Book IIL 

§ 394. Also, if a woman be seised of land in fee, 
whereof I have right and title to enter, if the woman take 
husband, and have issue between them, and after the 
wife die seised, and after the husband die, and the issue 
enter, &c., in this case I may enter upon the possession of 
the issue, for that the issue comes not to the lands imme- 
diately by descent after the death of the mother, &c.y 
[but by the death of the father.] 

\_Contrarium tenetur P, 9 H, VII,, per tout le court,, 
andJlf. 37H. Vl.y 

§ 395. Also, if a disseisor enfeoff his father in fee, 
and the father die seised of such estate, by which the 
land descend to the disseisor, as son and heir, &c., in this 
case the disseisee may well enter upon the disseisor, not- 
withstanding the descent ; for that as to the disseisin, the 
disseisor shall be adjudged in but as a disseisor, notwith- 
standing the descent,^ [quia pariiceps criminis.'\ 

§ 396. Also, if a man seised of certain land in fee 
have issue two sons, and die seised, and the younger son 
enter by abatement into the land, and hath issue, and die 
seised thereof, and the land descend to his issue, and 
the issue enters into the land : in this case the eldest son, 
or his heir, may enter by the law upon the issue of the 
younger son, notwithstanding the descent, because that 
when the younger son abated into the land after tho 

1 Coke says : '' This is an addition and therefore to be passed 
over." 

M &c. }- 



Chap. VI.] DESCENTS. 189 

death of his father, before any entry [made] by the 
eldest son, the law intends that he entered claiming as 
heir to his father. And for that the eldest son claims by 
the same title, that is to say, as heir to his father, be and 
his heirs may enter upon the issue of the younger son, 
notwithstanding the descent, &c., because they claim b}' 
the same title. And in the same manner it shall be, if 
there were more descents from one issue to another issue 
of the younger son. 

§ 397. But in this case, if the father were seised of 
certain lands in fee, and hath issue two sons, and die, 
and the eldest son* enter, and is seised, &c., and after^ 
the younger brother disseiseth him, by which disseisin 
he is seised in fee, and hath issue, and of this estate dieth 
seised, then the elder brother cannot enter, but is put to 
his writ of eniric sur disseisin, [(fec.J to recover the 
land. And the cause is, for that the youngest brother 
cometh to the lands by wrongful disseisin done to his 
■elder brother ; and for this wrong the law cannot intend 
that he claimeth as heir to his father, no more than if a 
stranger had disseised the elder brother which had no 
title, &c. And so you may see the diversity, where the 
younger brother entereth after the death of the father be- 
fore any entry made by the elder brother in this case,^ 
iind where the elder brother enters after the death of his 

^Instead of " son," some French texts authorize ** brother." 
^ I.e. afterwards. 



190 DESCENNS. [Book IH. 

father, and after is disseised by the younger brother, 
where the younger after dieth seised.* 

§ 398. In the same manner it is, if a man seised of 
certain land in fee, hath issue two daughters, and dieth, 
the eldest daughter entereth into the land claiming all to 
her, and thereof only taketh the profits, and hath issue 
and dieth seised, by which her issue enter, which issue 
hath issue and dieth seised, and the second issue enter,^ 
et sic uUra,yet the younger daughter, or her issue as to the 
moiety, may enter upon any issue whatsoever of the elder 
daughter, notwithstanding such descent, for that they 
claim by one same title, &c. But in such case where both, 
sisters have entered after the death of their father, and 
were thereof seised, and after the eldest sister had dis- 
seised the younger of her part, and was thereof seised in 
fee, and hath issue, and of such estate dieth seised, 
whereby the lands descend to the issue of the elder sister, 
then the younger sister nor her heirs cannot enter, &c. 
causa qua suprdy &c. 

§ 399. Also, if a man be seised of certain lands in fee, 
and hath issue two sons, and the elder is a bastard and 
the younger mulier, and the father die, and the bastard 
entereth claiming as heir to his father, and occupieth the 
land all his life, without any entry made upon him by 
the mulier, and the bastard hath issue, and dieth seised 
of such estate in fee, and the land descend to his issue, 
and his issue entereth, &c., in this case the mulier is 
without remedy, for he may not enter, nor have any 



Chap. VI.] DESCENTS. 191 

action to recover the land, because there is an ancient 
law in this case, [&c.]. 

§ 400. But it hath been the opinion of some, that this 
shall be intended where the father hath a son-bastard by 
a woman, and after marrieth the same woman, and after 
the espousals he hath issue by the same woman a son or a 
daughter, and after the father dieth, &c., if such bastard 
entereth, &c., and hath issue and die seised, &c., then 
shall the issue of such bastard have the land clearly to 
him, as it is said before, &c., and not any other bastard 
of the mother which was never married to his father ; 
and this seemeth to be a good and reasonable opinion : for 
such a bastard bom before marriage celebrated between 
his father and his mother, by the law of holy church is 
mulier, albeit by the law of the land he is a bastard, and 
so he hath a colour to enter as heir to his father, for that 
he is by one law mxdier, scil. by law of holy church. But 
otherwise it is of a bastard, which hath no [manner of] 
colour to enter as heir, in so much as he can by no law 
be said to be mulier, for such a bastard is said in the law 
to be quasi nullius filius, &c. 

§ 401. But in the case aforesaid, where the bastard 
enter after the death of the father, and the mulier oust 
him, and after the bastard disseise the mulier, and hath 
issue and dieth seised, and the issue enter, then the mu- 
lier may have a writ of entrie sur disseisin against the 
issue of the bastard, and shall recover the land, &c. And 
so you may see a diversity where such bastard continues 
the possession all his life without interruption, and 



192 DESCENTS. [Book HI. 

where the mulier entereth and interrupts the possession 
of such bastard, &c. 

§ 402. Also, if an infant within age hath such cause 
to enter into any lands or tenements upon another, which 
is seised in fee, or in fee tail of the same lands or tene- 
ments, if such man who is so seised, dieth of such estate 
seised, and the lands descend to his issue during the time 
that an infant is within age, such descent shall not take 
away the entry of the infant, but that he may enter upon 
the issue which is in by descent, for that no laches shall 
be adjudged in an infant within age in such a case. 

§ 403. Also, if husband and wife, as in right of the 
wife, have title and right to enter into lands which an- 
other hath in fee, or in fee tail, and such tenant dieth. 
seised, &c., in such case the entry of the husband is taken 
away upon the heir which is in by descent. But if the 
husband die, then the wife may well enter upon the issue 
which is in by descent, for that no laches of the husband 
shall turn the wife or her heirs to any prejudice nor loss 
in such case, but that the wife and her heirs may well 
enter, where such descent is eschewed^ during the cover- 
ture. 

§ 404. [But the court hoi deth, .where such title is 
given to a feme sole, who after taketh husband which 
doth not enter, but suffer a descent, &c., there otherwise 
it is, for it shall be said the folly of the wife to take such 
a husband, which entered not in time, &c.]^ 

*7.6. fallen. 

* Coke says : *' This is added.*' 



Chap. VI.] DESCENTS. 1^3 

§ 405. Also, if a man which' is of non sane memory, 
that is to say, in Latin, qui non est compos mentis, hath 
cause to enter into any such tenements, if such descent, 
ut suprd^ be had in his life during the time that he was 
not of sound memory, and after dieth, his heir may well 
enter upon him which is in by descent. And in this case 
you may see a case, where the heir may enter, and yet 
his ancestor which had the same title could not enter. 
For he which was out of his memory at the time of such 
descent, if he will enter after such a descent, if an action 
lipon this be sued against him, he hath nothing to plead 
for himself, or to help him, but to say, that he was not of 
sane memory at the time of such descent, &c. And he 
shall not be received to say this, for that no man of full 
age shall be received in any plea by the law to^ disable 
his own person, but the heir may well disable the person 
of his ancestor for his own advantage in such case, for 
that mo laches may be adjudged by the law in him which 
hath no discretion in such case. 

§ 406. And if such a man of non sane memory make 
a feoffment, &c., he [himself] cannot enter, nor have a 
writ called Dum non fuit compos mentis, &c,, causa qua 
supra; but after his death his heir may well enter, or 
have the said writ of Dum non fuit compos mentis at his 
choice.^ [The same law is where an infant within age 
maketh a feoffment, and dieth, his heir may enter, or 
have a writ of Dum fuit infra oetatem, &c.^ 

1 { stultify and }■ 
» ^ &c. 1" 



194 DESCENTS. [Book IIL 

§ 407. Also, if I be disseised by an infant within age^ 
who alieneth to another in fee, and the alienee dieth 
seised, and the lands descend to his heir, the infant 
being^ within age, my entry is taken away, [&c.]. 

§ 408. But if the infant withiu. age enter upon the 
heir which is in by descent, as he well may, for that the 
same descent was during his nonage, then I may well 
enter upon the deisseisor, because by his entry he hath 
defeated and taken away the descent. 

§ 409. In the same manner it is, where I am dis- 
seised, and the disseisor make a feoffment in fee upon 
condition, and the feoffee die of such estate seised,* I 
may not enter upon the heir of the feoffee: but if the 
condition be broken, so as for this cause the feoffor enter 
upon the heir, now I may well enter, for that when the 
feoffor or his heirs enter for the condition broken, the 
descent is utterly defeated, [&c.] 

§ 410. Also, if I be disseised, and the disseisor hath 
issue and entereth into religion, by force whereof the 
lands descend to his issue, in this case I may well enter 
upon the issue, and yet there was a descent. But for that 
such descent cometh to the issue by the act of the father, 

1 Instead of ** the infant being/* the translation in Co. Lit. has 
" being an infant." Ritso's Science of tlie Law, 110, points out 
that the proper translation is ** the infant being." Hargrave and 
Butler's notes say : ** It is apprehended that, on comimring the 
text with the version, it will be found that Lord Coke has given 
a wrong translation of Littleton. . . . The words, esteant Ven- 
fant deins age^ should therefore be translated 'the infant being 
under age ' " 



Chap. VI.] DESCENTS. 195 

scil. for that he entered into religion, &c., and the descent 
came not unto him by the act of God, scil. by death, &c., 
my entry is congeable.^ For if I arraign an assise of 
novel disseisin against my disseisor, albeit he after enter 
into religion, this shall not abate my writ, but my writ, 
notwithstanding this, shall stand in his force, and [my 
recovery] against him shall be good. And by the same 
reason the descent which cometh to his issue by his own 
act, shall not take from me my entry, &c. 

§ 41.1. Also, if I let unto a man certain lands for the 
term of twenty years, and another disseiseth me, and 
oust the termor, and die seised, and the lands descend to 
his heir, I may not enter; and yet the lessee for years 
may well enter, because that by his entry he doth not 
oust the heir who is in by descent of the freehold which 
is descended unto him, but only [claimeth] to have the 
lands for term of years, which is no expulsion from the 
freehold of the heir who is in by descent. But otherwise 
it is, where my tenant for term of life is disseised, causa 
patet, [&c.'\ 

§ 412. Also, it is said, that if a man be seised of lands 
in fee by occupation in time of war, and thereof dieth 
seised in the time of war, and the tenements descend to 
his heirs, such descent shall not oust any man of his 
entry ; and of this a man may see in a plea upon a writ 
of aiel, 7 E. II. 

§ 413. Also, that no dying seised, where the tene- 
ments come to another by succession, shall take away the 

'/.«. legal. 



196 DESCENTS, TBook UL 

entry of any person, &c. As of* prelates, abbots, priors,^ 
deans, or of the parson of a church, [or of other bodies 
politic,] &c., albeit there were twenty dyings seised, and 
twenty successors, this shall not put any man from his 
entry.* 

More shall be said of descents in the next chapter.* 

1 Instead of '* As of/' the best French texts authorize '* For as 
to." 

* Instead of ''next chapter," the best French texts authorize 
** chapter of Ck)ntinual ClaiuL" 



CHAPTER VIL 



CONTINUAI- CLAIM. 



§ 414. Continual claim is where a man hath right 
and title to enter into any lands or tenements, whereof 
another is seised in fee, or in fee tail, if he which hath 
title to enter makes continual claim to the lands or tene- 
ments before the dying seised of him which holdeth the 
tenements, then albeit that such tenant dieth thereof 
seised, and the lands or tenements descend to his heir, 
yet may he who hath made such continual claim, or his 
heir, enter into the lands or tenements so descended, by 
reason of the continual claim made, notwithstanding the 
descent. As in case that a man be disseised, and the dis- 
seisee makes continual claim to the tenements in the life 
of the disseisor, although that the disseisor dieth seised 
in fee, and the land descend to his heir, yet may the dis- 
seisee enter upon the possession of the heir, notwith- 
standing the descent.^ 

§ 415. In the same manner it is, if tenant for life 
alien in fee, he in the reversion or he in the remainder 
may enter upon the alienee. And if such alienee dieth 
seised of such estate without continual claim made to the 

M &c. J- 

197 



198 CONTINUAL CLAIM. [Book HI. 

tenements, before the dying seised of the alienee, and the 
lands by reason of the dying seised of the alienee descend 
to his heir, then cannot he in the reversion nor he in the 
remainder enter. But if he in the reversion or in the 
remainder, who hath cause to enter upon the alienee, 
make continual claim to the land before the dying seised 
of the alienee, then such a man may enter after the death 
of the alienee, as well as he might in his lifetime.^ 

§ 416. Also, if land be let to a man for term of his 
life, the remainder to another for term of life, the re- 
mainder to the third in fee, if tenant for life alien to 
another in fee, and he in the remainder for life maketh 
continual claim to the land before the dying seised of the 
alienee, and af ter^ the alienee dieth seised,^ and after* he 
in the remainder for life die before any entry made by 
him, in this case he in the remainder in fee may enter* 
upon the heir of the alienee, by reason of the continual 
claim made by him which had the remainder for life; 
because that such right as he had of entry, shall go and 
remain to him in the remainder after him, insomuch as 
he in the remainder in fee could not enter upon the 
alienee in fee during the life of him in the remainder 
for life, and for that he could not then make continual 
claim. ( [For none can make continual claim,] but 
when he hath title to enter, &c.) 

M &c. 1^ 

' I.e. afterwards. 

» ^ &c. ^ 

* I.e. afterwards. 

6{&C. i^ 



Chap. VII.] CONTINUAL CLAIM. 199 

§ 417. But it is to be seen of thee, my son, how and 
in what manner such continual claim shall be made ; and 
to learn this well, three things are to be understood. The 
first thing is, if a man hath cause to enter into any lands 
or tenements in divers towns in one same county, if he 
enter into one parcel of the lands or tenements which are 
in one town, in the name of all the lands or tenements, 
into the which he hath right to enter within all the towns 
of the same county ; by such entry he shall have as good a 
possession and seisin of all the lands and tenements 
whereof he hath title of entry, as if he had entered in 
deed into every parcel ; and this seemeth great reason. 

§ 418. For if a man will enfeoff another without 
deed of certain lands or tenements, which he hath in 
many towns in one county, and he will deliver seisin to 
the feoffee of parcel of the tenements within one town in 
the name of all the lands or tenements which he hath in 
the same town, and in other towns, &c., all the said tene- 
ments, &c., pass by force of the said livery of seisin to 
him to whom such feoffment in such manner is made, 
and yet he to whom such livery of seisin was made, hath 
no right in all the lands or tenements in all the towns, but 
by reason of the livery of seisin made of parcel of the 
lands or tenements in one town; d miiJto fortiori, it 
seemeth good reason that when a man hath title to enter 
into the lands or tenements in divers towns in one same 
county, before entry by him made, that by the entry 
made by him into parcel of the lands in one town, in the 
name of all the lands and tenements to which he hath 



200 CONTINUAL CLAIM. [Book HI. 

title to enter within the same county, this shall vest* a 
seisin of all in him, and by such entry he hath possession 
and seisin in deed, as if he had entered into every parcel. 

§ 419. The second thing to be understood is, that if a 
man hath title to enter into any lands or tenements, if 
he dares not enter into the same lands or tenements, nor 
into any parcel thereof, for doubt of beating, or for doubt 
of maiming, or for doubt of* death, if he goeth and ap- 
proach as near to the tenements as he dare for such 
Moubt, and by word claim the lands to be his, presently 
by such claim he hath a possession and seisin in the 
lands, as well as if he had entered in deed, although he 
never had possession or seisin of the same [lands or] 
tenements before the said claim. 

§ 420. And that the law is so, it is well proved by a 
plea of an assise in the book of assises, an. 38 E. III., 
[pi. 32,] the tenor whereof foUoweth in this manner. 
In the county of Dorset, before the justices, it was found 
by verdict of assise, that the plaintiff which had right 
by descent of inheritance to have the tenements put in 
plaint, at the decease of his ancestor was abiding in the 
town where the tenements were, and by parol claimed the 
tenements amongst his neighbours, but for fear of death 
he durst not approach the tenements, but bringeth his 
assise, and upon this matter found, it was awarded that 
he should recover, &c. 

§ 421. The third thing is to know within what time 

[and by what time] the claim which is said continual 

1 Instead of *' shall vest," the best French texts authorize ''is.** 



Chap. VU.] CONTINUAL CLAIM. 201 

claim shall serve and aid him that maketh the claim, and 
his heirs. And as to this it is to be understood, that he 
which hath title to enter, when he will make his claim, 
if he dare approach the land, then he ought to go to the 
land, or to parcel of it, and make his claim ; and if he 
dare not approach the land for doubt or fear of beating, 
or maiming, or death, then ought he to go and approach 
as near as he dare towards the land, or parcel of it, to* 
make his claim. 

§ 422. And if his adversary who occupieth the land^ 
dieth seised in fee, or in fee tail, within the year and a 
day after such claim, whereby the lands descend to his 
son, as heir to him, yet may he which made the claim 
enter upon the possession of the heir, [&c.] 

§ 423. But in this case after the year and the day 
that such claim was made,^ if the father then died seised 
the morrow next after the year and the day, or any other 
day after, &c., then cannot he which made the claim 
enter ; and therefore if he which made the claim will be 
sure at all times that his entry shall not be taken away 
by such descent, &c., it behoveth him that within the 
year and the day after the first claim [made,] to make 
another claim in form aforesaid, and within the year and 
the day after the second claim [made,] to make the 
third claim in the same manner, and within the year and 
the day after the third claim to make another claim, and 
so over, that is to say, to make a claim within every year 

1 Instead of ** to," the best French texts authorize **and." 
* -Htno other claim was made, y 



CONTINUAL CLAIiM. [Book m. 

and day next after every claim made during the life of 
his adversary, and then at what time soever his adversary 
dieth seised, his entry shall not be taken away by any 
descent. And such claim in such manner^ made, is most 
commonly taken and named continual claim of him 
which maketh the claim, &c. 

§ 424. But yet in the case aforesaid, where his adver- 
sary dieth within the year and the day next after the 
claim, this is in law a continual claim, insomuch as his 
adversary within the year and the day next after the 
same claim dieth. For he which made his claim needeth 
not to make any other claim, but at what time he will 
within the same year and day, &c. 

§ 425. Also, if the adversary be disseised within the 
year and the day after such claim, and the disseisor 
thereof dieth seised within the year and the day, &c., 
such dying seised shall not grieve him which made the 
claim, but that he may enter, &c. For whosoever he be 
that dieth seised within the year and the day after such 
claim made, this shall not hurt him that made the claim, 
but that he may enter, &c., albeit there were many dy- 
ings seised, and many descents within the same year and 
day, &c. 

§ 426. Also, if a man be disseised, and the disseisor 
dieth seised within the year and day next after the dis- 
seisin made, whereby the tenements descend to his heir, 
in this case the entry of the disseisee is taken away, for 
the year and day which should aid the disseisee in such 

> ; to be V 



Chap. VII.] CONTINUAL CLAIM. 

case,^ shall not be taken from the time of title of entry 
accrued unto him, but only from the time of the claim 
made by him in manner aforesaid. And for this cause 
it shall be good for such disseisee to make his claim^ in 
as short time as he can after the disseisin, &c. 

§ 427. Also, if such disseisor occupieth the lands 
forty years or^ more years, without any claim made by 
the disseisee, &c., and the disseisee a little before the 
death of the disseisor makes a claim in the form afore- 
said, if so it fortuneth that within the year and the day 
after such claim the disseisor die, &c., the entry of the 
<lisseisee is congeable, &c. And therefore it shall be 
good for such a man which hath not made claim, and 
which hath good title of entry,* when he heareth that his 
adversary lieth languishing, to make his claim, &c. 

§ 428. Also, as it is said in the cases put, where a 
man hath title of entry by cause of a disseisin, &c., the 
same law is where a man hath right to enter by 'jause of 
another title, &c. 

§ 429. Also, of the said foresayings thou mayst know 
(my son) two things. One is, where a man hath title to 
-enter upon a tenant in tail, if he maketh such a claim to 
the land, then is the estate tail defeated, or this claim is 
as an entry made by him, and is of the same effect in law 
as if he had been upon the same tenements, and had 
entered into the same, as before is said. [And] then 

M&c. !► 

• -{ many J- 
^ ^ &c. J^ 



20* CX)NTINUAL CLAIM. [Book ID. 

when the tenant in tail immediately after such claim 
continue his occupation in the lands, this is a disseisin 
made of the same tenements to him which made such 
claim, and so by consequent, the tenant then hath a fee 
simple. 

§ 430. The second thing is, that as often as he which 
hath right of entry maketh such claim,* [and this] not- 
withstanding his adversary continue his occupation,* so- 
often the adversary doth wrong and disseisin to him 
which made the claim. And for this cause so often may 
he which makes the same claim for every such wrong and 
disseisin done unto him, have a writ of trespass, \_Qtiare 
clausum f regit, &c,, and recover his damages, &c.] 

§ 431. [Or he may have a writ]^ upon the statute of 
R. II., made in the fifth year of his reign, supposing by 
his writ that his adversary had entered into the lands or 
tenements of him that made the claim, where his entry 
was not given by the law, &c., and by this action he shall 
recover his damages, &c. And if the case were such, that 
the adversary occupied the tenements with force and 
arms, or with a multitude of people at the time of such 
claim, &c., [immediately after the same claim]* may he 
which made the claim for every such act have a writ of 
forcible entry, and shall recover his treble damages, &c. 

§ 432. Also,* it is to be seen, if the servant of a man 

> The earliest texts treat this section and the preceding as an 
unbroken discussion. 

The division into sections, made by West in 1581, occasion- 
ately is unfortunate. 

* \ then \ » \ here \ 



Chap. VII.J CONTINUAL CLAIM. 206 

who hath title to enter, may by the commandment of his 
master make continual claim for his master or not. 

§ 433. And it seemeth that in some cases he may do 
this ; for if he by his commandment cometh to any parcel 
of the land, and there maketh claim, &c., in the name of 
his master, this claim is good enough for his master, for 
that he doth all that which his master [should or] ought 
to do in such case, &c. [Also] if the master saith to his 
servant, that he dares not come to the land, nor to any 
parcel of it, to make his claim, &c., and that he dare ap- 
proach no nearer to the land than to such a place called 
Dale, and command his servant to go to the same place 
of Dale, and there make a claim for him, &c., if the 
servant doth this, &c., this also seemeth a good claim for 
his master, as if his master were there in his proper per- 
son, for that the servant did all that which his master 
durst and ought to do by the law in such a case, &c. 

§ 434. Also, if a man be so languishing, or so de- 
crepid, that he cannot by any means come to the land, 
nor to any parcel of it, or if there be a recluse, which 
may not by reason of his order go out of his house, if 
such manner of person command his servant to go and 
make claim for him, and such servant dare not go to the 
land, nor to any parcel of it, for doubt of beating, may- 
hem, or death, [&c.,] and for this cause the servant 
cometh as near to the land as he dareth for such doubt,* 
and maketh the claim, &c., for his master, it seemeth that 
such claim for his master is strong enough, and good in 
^ Instead of '* doubt/* the best French texts authorize *' dread." 



206 CONTINUAL CLAIM. [Book in: 

law. For otherwise his master should be in a very great 
mischief; for it may well be that such person which is 
sick, decrepid, or recluse, cannot find any servant which 
dare go to the land, or to any parcel of it, to make the 
claim for him, &c. 

§ 435. But if the master of such servant be in good 
health, and can and dare well go to the lands, or to parcel 
of it, to make his claim, &c., if such master command 
his servant to go to any parcel of the land to make claim 
for him, and when the servant is in going to do the com- 
mandment of his master, he heareth by the way such 
things as he dare not come to any parcel of the land to 
make the claim for his master, and therefore he cometh 
as near to the land as he dare for doubt of death, and 
there maketh claim for his master^ and in then ame of 
his master, &c., it seemeth that the doubt in law in such 
case shall be whether such claim shall avail his master or 
not, for that the servant did not all that which his 
master at the time of his commandment durst have done, 
&c. Queers. 

§ 436. Also, some have said, that where a man is in 
prison and is disseised, and the disseisor dieth seised dur- 
ing the. time that the disseisee is in prison, whereby the 
tenements descend to the heir of the disseisor, they have 
said, that this shall not hurt the disseisee which is in 
prison, but that he well may enter, notwithstanding such 
a descent, because he could not make continual claim 
when he was in prison. 

§ 437. [But the opinion of all the justices, P. 11 



Chap. VII;] CONTINUAL CLAIM. 207 

H. VIL, was that if the disseisin be before the imprison- 
menty although the dying seised be he being in the 
prison, his entry is taken away.]* 

And also, if he which is in prison be outlawed in an 
action of debt or trespass, or in an appeal of robbery, &c., 
he shall reverse this outlawry* pronounced against him, 
&c. 

§ 438. Also, if a recovery be by default against such 
a one as is in prison, he shall avoid the judgment by a 
writ of error, because he was in prison at the time of the 
default made, &c. And for that such matters of record 
shall not hurt him which is in prison, but that they shall 
be reversed, &c., d multo f&rtiori, it seemeth that a mat- 
ter in fact, 8cil. such descent had, when he was in prison, 
shall not hurt him, &c., especially seeing he could not go 
out of prison to make continual claim, &c. 

§ 439. In the same manner it seemeth, where a man 
is out of the realm in the king's service, for the business 
of the realm, if such a one be disseised when he is in 
service of the king, [and the disseisor dieth seised, the 
disseisee being in the king's service,] that such descent 
shall not hurt the disseisee; but for that he could not 
make continual claim,* it seems to them that when he 
cometh* into England, he may enter upon the heir of the 

^ Coke says * This is of a new addition, and mistaken, for there 
is no such opinion, P. 11 H. VII., but it is 9 H. VII. fo. 24, b." 

s •{ by writ of error, &c., because he was in prison at the time 
of the outlawry. )- 

* ^ again }- 



208 CONTINUAL CLAIM. [Book HI. 

disseisor^ &c. For such a man shall reverse an outlawry* 
pronounced against him during the time that he was in 
the king's service, &c., therefore, a multo fortiori, he 
shall have aid and ind^nnity by the law in the other case, 
&c. 

§ 440. Also, others have said, that if a man be out of 
the realm, though he be not in the king's service, if such 
a man being out of the realm be disseised of lands or 
tenements within the realm, and the disseisor die seised, 
Ac, the disseisee being out of the realm, it seemeth unto 
them, that when the disseisee cometh into the realm, that 
he may well enter upon the heir of the disseisor, &c., and 
this seemeth unto them for two causes : One is, that he 
that is out of the realm cannot have knowledge of the dis- 
seisin made unto him by understanding of the law, no 
more than that a thing done out of the realm may be tried 
within this realm by the oath of twelve men;^ and to 
comjwl such a man to make continual claim, which by 
the understanding of the law can have no knowledge or 
cognizance of such disseisin made or done, this shall be 
inconvenient, namely, when such a disseisin is done unto 
him when he was out of the realm, and also the dying 
seised was done when he was out of the realm ; for in 
such case he may not by possibility after the common 
presumption make continual claim; but otherwise it 
should be if the disseisee were within the realm at the 
time of the disseisin, or at the time of the dying seised 
of the disseisor. 

i-lwhichis}- M&c. )- 



Chap. VII ] CONTINUAL CLAIM. 209 

♦. § 441. Another matter they allege for a proof that 
before the statute of King Edward the Third, made the 
thirty-fourth year of his reign, by which statute non- 
claim is ousted, &c., the law was such, that if a fine were 
levied of certain lands or tenements, if any that was a 
stranger to the fine had right to have and to recover the 
same lands or tenements, if he came not and made his 
claim thereof within a year and a day next after the fine 
levied, he shall be barred for ever, quia dicebatur quod 
finis finen litihus imponebat. And that law was such, it 
is proved by the statute of Westminster 11.,^ De donis 
conditionalibus, where it is spoken if the fine be levied 
of tenements given in the tail, &c., qudd finis ipso jure 
sit nullus, nee habeant hcBredes, aut illi ad quos special 
reversio (licel plenos oslalis fuerinl in Anglid, el extra 

^ Ritso*s Science of the Law, 108-109, says that this section is 
"contradictory and unintelligible, according to the present read- 
ing/* and suggests that ** to restore this section, as we may pre- 
sume it to have been originally written by Littleton,*' the reading 
up to this point, should be : *' Another matter they allege for 
proof, (of the allegation contained in the sect. 440, that a dissei- 
sin and descent shall not bind the disseisee, who is out of the 
realm at the time, &c.) viz. that before the statute of King Ed- 
ward III. made the thirty-fourth year of his reign, (by which 
statute non-claim is ousted, &c.) the law was such, that if a fine 
was levied of certain lands or tenements, if any that was a 
stranger to the fine, had right to have and recover the same 
lands and tenements, if he came not and made his claim thereof 
within a year and a day next after the fine levied, he was for- 
ever barred, quia dicebatur qv^ finis finem litilms imponebat 
But if he were out of the realm at the time of the fine levied, 
&c., or in prison, or not of full age. he was not barred, although 
he made not his claim, &c. And that the law was such, is 
proved by the statute of Westminster II." 

14 



910 CONtlNUAL CLAIM. [Book IIL 

prisonam) necessitat apponere clameum suum. So it is 
proved that if a stranger that hath right unto the tene- 
ments, if he were out of the realm at the time of the fine 
levied, &c., shall have no damage, though that he made 
not his claim, &c., though that such fine was matter of 
record: by greater reason it seemeth unto them, that a 
disseisin and descent that is matter in deed, shall not so 
grieve him that was disseised when he was out of the 
realm at the time of that disseisin, and also at the time 
that the disseisor died seised, &c., hut that he may well 
entef, Notwithstanding such descent.* 

§ 442. Also, inquire if a man be disseised, and he 
arraign an assise against the disseisor, and the recog- 
nitors of the assise chant^ for the plaintiff, and the 
justices of assise will be advised of their judgments until 
the next assise, &c., and in the mean season the disseisor 
dieth seised, &c., yet the said suit of the assise shall be 
taketi in law for the disseisee a continual claim, inso- 
much that no default was in him, &c. 

§ 443. Also, inquire if an abbot of a monastery die, 
and during the time of vacation a man wrongfully en- 
tereth in certain parcels of land of the monastery, claim- 
ing the land unto him and his heirs, and of that estate 
dieth seised, and the land descendeth unto his heirs, and 
after that an abbot is chosen, and made abbot of the 
monastery, a question is, if the abbot may enter upon the 
heir or not. And it seemeth to some, that the abbot may 

M &c. ^ 
a I.e. find. 



Chap. Vn. CONTINUAD CLAIM. 211 

well enter in this case, for this, that the convent in time 
of vacation was no person ahle to make continual claim ; 
for no more than they be personable to sue an action, no 
more be they able to make continual claim, for the con- 
vent is but a dead body without head; for in time of 
vacation a grant made unto them is void; and in this 
case an abbot may not have a writ of entry upon dis- 
seisin against the heir, for this, that he was never dis- 
seised. And if the abbot may not enter in this case, then 
he shall be put unto his writ of right, [&c.,] which shall 
be hard for the house ; by which it seemeth to them, that 
the abbot may well enter, &c. 

Quceras de dubiisj legem bene discere si vis: 
Quosrere dat sapere, qucB sunt legitima vere. 



CHAPTER VIII. 



SELEASES. 



'§ 444. Releases are in divers manners^ viz. releases 
of all the right which a man hath in lands or tenements,* 
and releases of actions personals and reals, and other 
things. Releases of all the right which men have in 
lands and tenements, &c., are commonly made in this 
form, or of this eflFect : 

§ 445. Know all men by these presents, that I A. of 
B. have remised, released, and altogether from me and 
my heirs quit-claimed: or thus, for me and my heirs quit- 
claimed to C, of D, all the right, title, and claim which I 
have, or by any means may have, of and in one messuage 
vnth the appurtenances in F., &c. And it is to be under- 
stood, that these words, remisissee, et quietum clamdsse, 
are of the same effect as these words, relaxdsse, 

§ 446. Also, these words, which are commonly put in 
such releases,^ \_scil.'] (quce quovismodo in futurum 
habere potero) are as void in law.; for no right passeth by 
a release, but the right which the releasor hath at the 
time of the release made. For if there be father and son, 
M &c. ^ 

212 



Chap. VIII.] RELEASES. 213 

and the father be disseised, and the son (living his 
father) releaseth by his deed to the disseisor all the right 
which he hath or may have in the same tenements with- 
out clause of warranty, &c., and after the father dieth, 
&c., the son may lawfully enter upon the possession of 
the disseisor, for that he had no right in the land* in his 
father's life, but the right descended to him after the 
release made by the death of his father, &c. 

§ 447. Also, in releases of all the right which a man 
hath in certain lands, &c., it behoveth him to whom the 
release is made in any^ case, that he hath the freehold in 
the lands^ in deed, or in law, at the time of the release 
made, [&c.] For in every case where he to whom the 
release is made hath the freehold in deed, or in law, at 
the time of the release, &c., there the release is good. 

§ 448. Freehold in law is, as if a man disseiseth an- 
other and dieth seised, whereby the tenements descend to 
his son, albeit that his son doth not enter into the tene- 
ments, yet he hath a freehold in law, which by force of 
the descent is cast upon him, and therefore a release 
made to him so being seised of a freehold in law, is good 
enough; and if he taketh wife being so seised in law, 
although he never enter in deed, and dieth, his wife shall 
be endowed."* 

§ 449. Also, in some cases of releases of all the right, 
albeit that he to whom the release is made hath nothing 

1 -{ when he released y 

^Instead of '* any," the best FreDch texts authorize " such." 



214 RELEASES. [Book in. 

in the freehold in deed nor in law, yet the release is good 
enough. As if the disseisor letteth the land which he 
hath by disseisin to another for term of his life, saving 
the reversion to him, if the disseisee or his heir release 
to the disseisor all the right, &c., this release is good, 
because he to whom the release is made, had in law a 
reversion at the time of the release made. 

§ 450. In the same manner it is, where a lease is 
made to a man for term of life, the remainder to another 
for term of [another man's] life, the remainder to the 
third in tail, the remainder to the fourth in fee, if a 
stranger which hath right to the land releaseth all his 
right to any of them in the remainder, such release is 
good, because every of them hath a remainder in deed 
vested in him. 

§ 451. But if the tenant for term of life be dis- 
seised, and afterwards he that hath right (the posses- 
sion being in the disseisor) releaseth to one of them to 
whom the remainder was made all his right, this re- 
lease is void, because he had not^ a remainder in deed 
at the time of the release made, but only a right of a 
remainder. 

§ 452. And note, that every release made to him 
which hath a reversion or a remainder in deed, shall 
serve and aid him who hath the freehold, as well as 
him to whom the release was made, if the tenant hath 
the release in his hand [to plead.] 

1 [in bim] 



Chap. VUI.] RBLEASBB. ^15 

§ 458. In tbe same manner [it i», where] a release 
[is] made to the tenant tot life, or to the tenant in tail, 
[this] shall enure to them in the reverpioa, or to them in 
the remainder, as well aa to the tenant of the freehold, 
and they shall have as great advantage of this, if they 
can shew it.* 

§ 454. Also, if there be lord and teoant, apd the 
tenant be disseised, and the lord releaaetb to tl)e dis- 
seisee all the right which he bath in the seigniory or in 
the land, this release is good, and the seigniory is ei^- 
tinct : and this is by reason of the privity which is be- 
tween the lord 4Bd the disseisee. For if the beasts of the 
disseisee be taken, and of them the disseisee sueth a re- 
plevin against the lord, he shall compel the lord to avow 
upon him ; for if he avow upon the disseisor^ then upon 
the matter shewn the avowry shall abate, for tbe disseisee 
is tenant to him in right and in law. 

§ 455. Also, if land be given to a man in tail, reserv- 
ing to the donor and to his heirs a certain rent, if the 
donee be disseised, and after the donor release tQ the 
donee and his heirs all the right which he hath in the 
land, and after the donee enter into the land upon the 
disseisor ; in tbis case the rent is gone, for that the dis- 
seisee, at the time of the release made, was tenant in 
right and in law to the donor, and the avowry of fine 
force ought to be made upon him by the donor for the 
rent behind, ke. But yet nothing of the right of tbe 

' -{ &c. }► 



216 RELEASES. [Book in. 

lands, scil, of the reversion, shalP pass by such release, 
for that the donee to whom the release is made, then had 
nothing in the land but only a right, and so the right of 
the land could not [then] pass to the donee by such 
release. 

§ 456. In the same manner it is, if a lease be made 
to one for term of life, reserving to the lessor and to his 
heirs a certain rent, if the lessee be disseised, and after 
the lessor release to the lessee and to his heirs all the 
right which he hath in the land, and after the lessee 
entereth, albeit in this case the rent is extinct, yet no- 
thing of the right of the reversion shall pass, cavsd qua 
supra. 

§ 457. But if there be very lord and very tenant, 
and the tenant maketh a feoffment in fee, the which 
feoffee doth never become tenant to the lord,^ if the lord 
release to the feoffor all his right, &c., this release is 
altogether void, because the feoffor hath no right in the 
land, and he is not tenant in right to the lord, but only 
tenant as to make the avowry, and he shall never com- 
pel the lord to avow upon him, for the lord shall avow 
upon the feoffee if he will. 

§ 468. Otherwise it is, where the very tenant is dis- 
seised, as in the case aforesaid ; for if the very tenant 
who is disseised, hold of the lord by knight's service and 
dieth, (his heir being within age) the lord shall have 
and seize the wardship of the heir, and so shall he not 

1 \ then } 



Chap. VIII.] RELEASES. 217 

have the ward of the feoffor that made the feoffment in 
fee, &c., so there is a great diversity between these two 
cases. 

§ 459. Also, if a man ktteth to another his land for 
term of years, if the lessor release to the lessee all his 
right, &c., before that the lessee had entered into the 
same land by force of the same lease, such release is 
void, for that the lessee had not possession in the land at 
the time of the release made, but only a right to have the 
same land by force of the lease. But if the lessee enter 
into the land, and hath possession of it by force of the 
said lease, then such release made to him by the feoffor, 
or by his heir, is sufficient to him by reason of the privity 
which by force of the lease is between them, &c. 

§ 460. In the same manner it is, as it seemeth^ 
where a lease is made to a man to hold of the lessor at 
his will, by force of which lease the lessee hath posses- 
don : if the lessor in this case make a release to the les- 
see of all his right, &c., this release is good enough for 
the privity which is between them; for it shall be in 
vain to make an estate by a livery of seisin to another, 
where he hath possession of the same land by the lease 
of the same man before, &c. 

[But the contrary is holden, Pasch. 2 E. IV., by all 
the justices.]^ 

§ 461. But where a man of his own head occupieth 

^Coke says: ''This is of anew addition, and the book here 
cited ill understood, for it is to be understood of a tenant at suf- 
ferance." 



218 RELEASES. [Book HI. 

lands or tenements at the will of him which hath the 
freehold, and such occupier claimeth nothing but at will^ 
&c., if he which hath the freehold will release all his 
right to the occupier, &c., this release is void, because 
there is no privity between them by the lease made to 
the occupier, nor by other manner, &c. 

§ 462. Also, if a man enfeofip other men of his land 
upon confidence and to the intent to perform his last 
will, and the feoffor occupieth the same land at the will 
of his feoffees, and after the feoffees release by their 
deed to their feoffor all their right, &c., this hath been a 
question, if such release be good or no. And some have 
said, that such release is void, because there was no 
privity between the feoffees and their feoffor, insomuch 
as no lease was made after such feoffment by the feof- 
fees to the feoffor, to hold at their will : and some have 
said the contrary, and that for two causes. 

§ 463. One is, that when such feoffment is made 
upon confidence to perform the will of the feoffor, it 
shall be intended by the law, that the feoffor ought 
presently to occupy the land at the will of his feoffees ; 
and so there is the like kind of privity between them, as 
if a man make a feoffment to others, and they immedi- 
ately upon the feoffment will and grant, that their feof- 
for shall occupy the land at their will, &c. 

§ 464. Another cause they allege, that if such land 
be worth forty shillings a year, &c., then such feoffor 
shall be sworn in assise and other inquests in pleas 
reals, and also in pleas personals, of what great sum 



Chap. VIII.J RELEASES. 219 

soever the plaintiff will declare, [&c.] And this is bj 
the common law of the land : Ergo, this is for a great 
cause, and the cause is, for that the law will that such 
feoffors and their heirs ought to occupy, &c., and take 
and enjoy all manner of profits, issues, and revenues, 
Ac, as if the lands were their own, without interruption 
of the feoffees, notwithstanding such feoffment. Ergo, 
the same law giveth a privity between such feoffors and 
the feoffees upon confidence, &c., for which causes they 
have said, that such releases made by such feoffees upon 
confidence to their feoffor or to his heirs, &c., so occupy- 
ing the lands,^ shall be good enough: and this is the 
better opinion, as it seemeth. 

\_Qucere, for this seemeth no law at this day.]* 
§ 465. Also, releases according to the matter in fact, 
sometimes have their effect by force to enlarge the 
estate of him to whom the release is made. As if I let 
certain land to one for term of years, by force whereof 
he is in possession, and after I release to him all the 
right which I have in the land without putting more 
words in the deed, and deliver to him the deed, then 
hath he an estate but for term of his life. And the 
reason is, for that when the reversion or remainder is 
in a man who will by his release enlarge the estate of 
the tenant, &c., he shall have no greater estate, but in 
such manner and form as if such lessor were seised in 

sCoke says : *' The qucere here made is not in the original, 

but added by some other, and therefore to be rejected," 



220 RELHASES. [Book III. 

fee, and by his deed will make an estate to one in a cer- 
tain form, and deliver to him seisin by force of the 
same deed : if in such deed of feoffment there be not any 
word of inheritance/ then he hath but an estate for 
life; and so it is in such releases made by those in the 
reversion or in the remainder. For if I let land to a 
man for term of his life, and after^ I release to him all 
my right without more saying in the release, his estate 
is not enlarged. But if I release to him and to his 
heirs, then he hath a fee simple ; and if I release to him 
and to his heirs of his body begotten, then he hath a fee 
tail, &c. And so it behoveth to specify in the deed what 
estate he to whom the release is made shall have. 

§ 466. Also, sometimes releases shall enure de mit- 
ter, and vest the right of him which makes the release 
to him to whom the release is made. As if a man be dis- 
seised, and he releaseth to his disseisor all his right, in 
this case the disseisor hath his right, so as where before 
his estate was wrongful, now by this release it is made 
lawful and right. 

§ 467. But here note, that when a man is seised in 
fee simple of any lands or tenements, and another will 
release to him all the right which he hath in the same 
tenements, he needeth not to speak of the heirs of him to 
whom the release is made, for that he hath a fee simple 
at the time of the release made. For if the release was 
made to him* for a day, or an hour, this shall be as 

1 { &c. )■ • /.e. afterwards. 
* -{ and his heirs \ 



Chap. VHI.] RELEASES. 221 

strong to him in law, as if he had released to him and 
his heirs. For when his right was once gone from him 
by his release without any condition, &c., to him that 
hath the fee simple,, it is gone for ever. 

§ 468. But where a man hath a reversion ip fee 
simple, or a remainder in fee simple, at the time of the 
release made, there if he will release to the tenant for 
years, or for life, or to the tenant in tail, he ought to 
determine the estate which he to whom the release is 
made shall have by force of the same release, for that 
such release shall enure to enlarge the estate of him to 
whom the release is made.* 

§ 469. But otherwise it is, where a man hath but a 
right to the land, and hath nothing in the reversion nor 
in the remainder in deed. For if such a man release all 
his right to one which is tenant in the freehold, all his 
right is gone, albeit no mention be made of the heirs of 
him to whom the release is made. For if I let lands^ to 
one for term of his life, if I after release to him to en- 
large his estate, it behoveth that I release to him and to 
his heirs of his body engendered, or to him and his 
heirs, or by these words. To have and to hold to him 
and to his heirs^ of his body engendered, [or to the 
heirs males of his body engendered] or such like estates, 
or otherwise he hath no greater estate than he had be- 
fore. 

§ 470. But if my tenant for life letteth the same 

1 -{ &c. y * -{ or tenements )- 
* -{ males )■ 



222 RELEASES. [Book m. 

land over to another for term of the life of his lessee, 
the remainder to another in fee, now if I release to him 
to whom my tenant made a lease for term of life, I shall 
be barred for ever, albeit that no mention be made of hi& 
heirs, for that at the time of the release made I had no 
reversion, but only a right to have the reversion. For 
by such a release, and the remainder over, which my 
tenant made in this case, my reversion was discontin- 
ued,^ [&c.], and this release shall enure to him in the 
remainder, to have advantage of it, as well as to the 
tenant for term of life. 

§ 471. For to this intent the tenant for term of life 
and he in the remainder are as one tenant in law, and 
are as if one tenant were sole seised in his demesne as of 
fee at the time of such release made unto him, &c. 

§ 472. Also,' if a man be disseised by two, if he re- 
lease to one of them, he shall hold his companion out of 
the land, and by such release he shall have the sole pos- 
session and esate in the land. But if a disseisor enfeoff 
two in fee, and the disseisee release to one of the feof- 
fees, this shall enure to both the feoffees, and the cause 
of the diversity between these two cases is pregnant 
enough. [For that they come in by feoffment, and the 
others by wrong, &c.]* 

§ 473. Also, if I be disseised, and my disseisor is 
disseised, if I release to the disseisor of my disseisor, I 

* I.e. divested. 

^ Coke says : '' This is of a new addition, aad not in the origi- 
nal." 



CfHAP. VIII.J RELEASES. 

shall not have an assise nor enter upon the disseisor, be- 
cause his disseisor hath my right by my release, &c. 
[And] so it seemeth in this case, if there be twenty dis- 
seised one after another, and I release to the last dis- 
seisor, this disseisor shall bar all the others of their ac- 
tions and their titles. And the cause is [as it seemeth,] 
for that in many cases, when a man hath lawful title of 
entry, although he doth not enter, he shall defeat all 
mean titles by his release, &c. But this holds not in 
every case, as shall be said hereafter. 

§ 474. Also, if my disseisor letteth the tenements 
whereof he disseised me to another for term of life, and 
after* the tenant for term of life alieneth in fee, and I 
release to the alienee, &c., then my disseisor cannot 
enter, causa qua supra, albeit that at one time the alien- 
ation was to his disinheritance, &c. 

§ 475. Also, if a man be disseised, who hath a son 
within age and dieth, and the son being within age the 
disseisor dieth seised, and the land descend to his heir, 
and a stranger abate, and after^ the son of the disseisee, 
when he cometh to his full age, releaseth all his right to 
the abator; in this case the heir of the disseisor shall 
not have an assise of mort d' ancestor against the abator; 
but shall be barred,' because the abator hath the right of 
the son of the disseisee by his release, and the entry of 
the son was congeable,* for that he was within age at 
the time of the descent, &c. 

' I.e. afterwards. * I e. afterwards. 

• -{ of the assise )■ ^ { &c. } 



224 RELEASES. [Book IIL 

§ 476. But if a man be disseised^ and the disseisor 
maketh a feoffment upon condition, viz. to render to 
him a certain rent, and for default of payment a re- 
entry, &c., if the disseisee release to the feoffee upon 
condition, yet this shall not amend^ the estate of the 
feoffee upon condition; for notwithstanding such re- 
lease, yet his estate is upon condition, as it was before. 

[And with this agreeth the opinion of all the justices, 
Pasch. 9 11. VII.] 

§ 477. In the same manner it is, where a man is 
disseised of certain lands, and the disseisor grant a 
rent-charge out of the same land, &c., albeit the dis- 
seisee doth afterwards release to the disseisor, &c., yet 
the rent-charge remains in force. And the reason in 
these two cases is this, that a man shall not have advan- 
tage by such release which shall be against his proper 
acceptance, and against his own grant. And albeit 
some have said, that where the entry of a man is con- 
geable upon a tenant, if he releases to the same tenant, 
that this shall avail the tenant, as if he had entered upon 
the tenant, and after enfeoffed him, &c., this is not true 
in every case. For in the first case of these two cases 
aforesaid, if the disseisee had entered upon the feoffee 
upon condition, and after enfeoffed him, then is the con- 
dition wholly defeated and avoided. And so in the 
second case, if the disseisee entereth and enfeoffeth him 
who granted the rent-charge, then is the rent-charge 

1 Instead of '* amend," the best French texts authorize ** abate. '» 



Chap. VIIL] RELEASES. 226 

taken away and avoided, but it is not void by any such 
release without entry made, &c. 

§ 478. Also, if a man be disseised by an infant who 
alien in fee, and the alienee dieth seised, and his heir 
entereth, the disseisor^ being within age, now is it in 
the election of the disseisor to have a writ of dum fuit 
infra cetatem, or a writ of right against the heir of the 
alienee, and which writ of them he shall choose, he 
ought to recover by the law, [&c.]. And also he may 
enter into the land without any recovery, and in this 
case the entry of the- disseisee is taken away. But in this 
case if the disseisee release his right to the heir of the 
alienee, and after the disseisor bringeth a writ of right 
against the heir of the alienee, and he join the mise 
upon the mere right, &c., the great assise ought to find 
by the law, that the tenant hath more mere right* than 
the disseisor, &c., for that the tenant hath the right of 
the disseisee by his release, the which is the most an- 
cient and most mere right: for by such release all the 
right of the disseisee passeth to the tenant, and is in the 
tenant. And to this some have said, that in this case 
where a man which hath right to lands or tenements 
(but his entry is not congeable) if he release to the 
tenant^ all his right, &c., that such release shall enure 
by way of extinguishment. As to this it may be said, 

^Instead of "disseisor," the earliest French texts authorize 
"alienor.*' 

15 



SS6 RELEASES. [Book III. 

that this is tra« as to him which releaseth ; for by his 
release he hath dismissed himself quite of his right as to 
his person^ but yet the right which he hath may well 
pass to the t^iant by his release. For it should be 
inconvenient that such an ancient right should be ex- 
tinct altogether, &c.y for it is commonly said, that a 
right cannot die. 

§ 479. But releases which enure by way of extin- 
guishment against all persons, are where he to whom 
the release is made, cannot have that which to him is 
released. As if there be lord and tenant, and the lord 
release to the tenant all the right which he hath in the 
seigniory, or all the right which he hath in the land, &c.y 
this release goeth by way of extinguishment against all 
persons, because that the tenant cannot have service to 
receive* of himself. 

§ 480. In the same manner is it of a release made to 
the tenant of the land of a rent charge or common of 
pasture, &c., because the tenant cannot have that which 
to him is released, &c., so such releases shall enure by 
way of extinguishment in all ways.' 

§ 481. Also, to prove that the grand assise ought to 
pass for the demandant,* in the case aforesaid, I have 
often heard the reading of the statute of Westminster 

1 Instead of ** service to recefve,*' the best French texts author- 
ize " this." 

> Instead of '* in all ways," the best French texts authorize 
'* against all persons." 

'Tomlins points out that ** demandant" is a misprint for 
" tenant." 



Chap. YIII.] RELEASES. 227 

II., which begun thus: In casu quo vir amiserit per 
defaltam tenementum quod fuit jus uxoris sum, &c., 
that at the common law before the said statute, if a lease 
were made to a man for term of life, the remainder over 
in fee, and a stranger by feigned action recovered 
against the tenant for life by default, and after the ten- 
ant dieth, he in the remainder had no remedy before the 
statute, because he had not any possession of the land. 

§ 482. But if he in the remainder had entered upon 
the tenant for life, and disseised him, and after the 
tenant enter upon him, and after the tenant for life by 
such recovery lose by default and die, now he in the 
remainder may well have a writ of right against him 
which recovers, because the mise shall be joined only 
upon the mere right, &c. Yet in this case the seisin of 
him in the remainder was defeated by the entry of the 
tenant for life. But peradventure some will argue and 
say, that he shall not have a writ of right in this case, 
for that when the mise is joined, it is joined in this 
manner, (scilicet) if} the tenant hath more mere right 
in the land in the manner as he holdeth, than the de- 
mandant hath in the manner as he demandeth, and for 
that the seisin of the demandant was defeated by the 
entry of the tenant for term of life, &c., then he hath no 
right in the manner as he demandeth. 

§ 483. To this it may be said, that these words 
(modo et forma prout, dec, in many cases are words of 

* Le, whether. 



RELEASES. [Book. III. 

form of pleading, and not words of substance. For if a 
man bring a writ of entry in casu proviso, of the aliena- 
tion made by the tenant in dower to his disinheritance, 
and counteth of the alienation made in fee, and the ten- 
ant saith, that he did not alien in manner as the de- 
mandant hath declared, and upon this they are at issue, 
and it is found by verdict that the tenant aliened in tail, 
or for term of another man's life, the demandant shall 
jecover : yet the alienation was not in manner as the de- 
mandant hath declared, &c. 

§ 484. Also, if there be lord and tenant, and the ten- 
ant hold of the lord by fealty only, and the lord distrain 
the tenant for rent, and the tenant bringeth a writ of 
trespass against his lord for his cattle so taken, and the 
lord plead that the tenant holds of him by fealty and 
certain rent, and for the rent behind he came to distrain, 
&c., and demand judgment of the writ brought against 
him, quare vi et armis, &c,, and the other saith that he 
doth not hold of him in the manner as he suppose, and 
upon this they are at issue, and it is found by verdict 
that he holdeth of him by fealty only; in this case the 
writ shall abate, and yet he doth not hold of him in the 
manner as the lord hath said. For the matter of the 
issue is, whether the tenant holdeth of him or no; for 
if he holdeth of him, although that the lord distrain the 
tenant for other services which he ought not to have, yet 
such writ of trespass quare vi et armis, &c,, doth not lie 
against the lord, but shall abate. 

§ 485. Also, in a writ of trespass for battery, or for 



Chap. VIII.] RELEASES. 229 

goods carried away, if the defendant plead not guilty, in 
manner as the plaintiff suppose, and it is found that the 
defendant is guilty in another town, or at another day 
than the plaintiff suppose, yet he shall recover. And 
[so] in many other cases these words, scil., in manner as 
the demandant or the plaintiff hath supposed, do not 
make any matter of substance of the issue : for in a writ 
of right, where the mise is joined upon the mere right, 
that is as much as to say, and to such effect, viz. whether 
the tenant or demandant hath more mere right to the 
thing in demand. 

§ 486. Also, if a man be disseised, and the disseisor 
dieth seised, &c., and his son and heir is in by descent, 
and the disseisee enter upon the heir of the disseisor, 
which entry is a disseisin, &c., if the heir bring an 
assise, or a writ [of entry in nature of an assise, he shall 
recover.] 

§ 487. [But if the heir bring a writ]* of right 
against the disseisee, he shall be barred, for that when 
the grand assise is sworn, their oath is upon the mere 
right, and not upon the possession. For if the heir of 
the disseisor sue an assise of novel disseisin, or a writ of 
entry in nature of an assise, and recovers against the dis- 
seisee, and sueth execution, yet may the disseisee have a 
writ of entry in the per against him, for the disseisin 
made to him by his father, or he may have against the 
heir a writ of right. 

^ According to the earliest printed texts, this section and the 
preceding must be read as a continuous passage. 



RELEASES. [Book III. 

§ 488. But if the heir ought to recover against the 
disseisee in the case aforesaid by a writ of right, then 
all his right should be clearly taken away, for that judg- 
ment final shall be given against him, which should be 
against reason where the disseisee hath the more mere 
right. 

§ 489. And know (my son) that in a writ of right, 
after the four knights have chosen the grand assise, then 
he hath no greater delay than in a writ of formedon, 
after the parties be at issue, &c. And if the mise be 
joined upon battle, then he hath lesser delay. 

§ 490. Also, a release of all the right, &c., in some 
case is good, made to him which is supposed tenant in 
law, albeit he hath nothing in the tenements. As in a 
prcBcipe quod reddat, if the tenant alien the land hang- 
ing the writ, and after the demandant releaseth to him 
all his right, &c., this release is good, for that he is sup- 
posed to be tenant by the suit of the demandant, and 
yet he hath nothing in the land at the time of the re- 
lease made. 

§ 491. In the same manner it is in a prwcipe quod 
reddat the tenant vouch, and the vouchee enters into 
warranty, if afterward the demandant release to the 
vouchee all his right,^ this is good enough, for that the 
vouchee, after that he hath entered into warranty, is 
tenant in law to the demandant, &c. 

§ 492. Also, as to releases of actions reals and per- 
sonals, it is thus: Some actions are mixt in the realty 

M&o. ^ 



Chap. VHI.] RBLSASBS. 281 

and in the personalty : as an action of waste aued agniust 
tenant for life ; this action is in the realty^ heoauae the 
place wasted shall be reoovered ; and alao in the person* 
alty, because treble damages shall be recovered for the 
wrongful waste^ done by the tenant; and therefore in 
this action a release of aotions reals is a good plea in bar, 
and so is a release of actions personals. 

§ 493. [And in a qvare impedit a release of actions 
personals is a good plea^ and so is a release of actions 
reals, per Martin, quod fuit concBssum. Hil, 9 H. VI* 
fo 67.]> 

§ 494. In the same, manner it is in an assise of nonei 
disseisin, for that it is mixt in the realty and in the per- 
sonalty. But if such an issue be arraigned against the 
disseisor and the tenant, the disseisor may well plesd s 
release of actions personals to bar the assise, but not a 
release of actions reals, for none shall plead a release of 
actions reals in an assise but the tenant. 

§ 496. Also, in such actions reals which ought to be 
sued against the tenant of the freehold, if the tenant 
hath a release of actions reals from the demandant made 
unto him before the writ purehaaed, and he plead this, 
it is a good plea for the demandant to say, that he which 
pleads the plea had nothing in the freehold at the time 
of the release made, for then he had no cause to have au 
action real against him. 

1 Instead of *' wrongful waste/' the best French texts authorize 
"wrong and waste.*' 
'Coke says : '* This is an addition to Littleton.'* 



RELEASES. [Book IIL 

§ 496. Also, in such case where a man may enter 
into lands or tenements, and also may have an action 
real for this, which is given by the law against the ten- 
ant ;^ if in this case the demandant releaseth to the ten- 
ant all manner of actions reals, yet this shall not take 
the demandant from his entry, but the demandant may 
well enter notwithstanding such release, for that noth- 
ing is released but the action, &c. 

§ 497i In the same manner is it of things personal : 
as if a man by wrong take away my goods, if I release 
to him all actions personals, yet I may by the law take 
my goods out of his possession. 

§ 498. Also, if I have [any] cause to have a writ of 
detinue of my goods against another, albeit that I re- 
lease to him all actions personals, yet I may [by the 
law] take my goods out of his possession, because no 
right of the goods is released to him, but only the action^ 
&c. 

§ 499. Also, if a man be disseised, and the disseisor 
maketh a feoffment to divers persons to his use,^ and the 
disseisor continually taketh the profits, &c., and the dis- 
seisee release to him all actions reals, and after he sueth 
against him a writ of entry in nature of an assise by 
reason of the statute, because he taketh the profits, &c» 
Qucsre, how the disseisor shall be aided by the said re- 
lease; for if he will plead the release generally, then 
the demandant may say, that he had nothing in the f ree- 



Chap. Vlll.] RELEASES. 233 

hold at the time of the release made ; and if he plead the 
release specially, then he must acknowledge a disseisin, 
and then may the demandant enter into the land, &c., 
by his acknowledgment of the disseisin, &c., but perad- 
venture by special pleading he may bar him of the ac- 
tion [which he sueth,] &c., though the demandant may 
enter. 

§ 500. Also, if a man sue an appeal of felony of the 
death of his ancestor against another, though the appel- 
lant release to the defendant all manner of actions real 
and personal, this shall not aid the defendant, for that 
this appeal is not an action real, inasmuch as the appel- 
lant shall not recover any realty in such appeal : neither 
is such appeal an action personal, inasmuch as the 
wrong was done to his ancestor, and not to him. But if 
he release to the defendant all manner of actions, then it 
shall be a good bar in an appeal. And so a man may 
see, that a release of all manner of actions is better than 
a release of actions reals and personals, &c. 

§ 501. Also, in an appeal of robbery, if the defend- 
ant will plead a release of the appellant of all actions 
personals, this seemeth no plea ; for an action of appeal, 
where the appellee shall have judgment of death, &c., is 
higher than an action personal is, and is not properly 
called an action personal: and there if the defendant 
will plead a release of the appellant to bar him of the 
appeal, in this case he must have a release of all man- 
ner of appeals, or all manner of actions, as it seemeth^ 
&c. 



234 RELEASES. [Book ni. 

§ 502. But in appeal of mayhem^ a release of all 
manner of actions personals is a good plea in bar, for 
that in such an action he shall recover nothing but dam- 



§ 503. Also, if a man be outlawed in an action per- 
sonal by process upon the original, and bringeth a writ 
of error, if he at whose suit he was outlawed will plead 
against him a release of all manner of actions personals, 
this seemeth no plea ; for by the said action he shall re- 
cover nothing in the personalty, but only to reverse the 
outlawry ; but a release of the writ of error is a good 
plea. 

§ 504. Also, if a man recover debt or damages, and 
he releaseth to the defendant all manner of actions, yet 
he may lawfully sue execution by capias ad satisfaderir 
dum, or by elegit, or fieri facias: for execution upon 
such a writ cannot be said an action. 

§ 505. But if after the year and day the plaintifF 
will sue a scire facias, to know if the defendant can say 
any thing why the plaintiff should not have* execution, 
then it seemeth that such release of all actions shall be 
a good plea in bar. But to some seems the contrary, in 
as much as the writ of scire facias is a writ of execu- 
tion, and is to have execution, &c. But yet in as much 
as upon the same writ the defendant may plead divers 
matters after judgment given to oust him of execution, 

^ Instead of *' to know if the defendant can saj anything why 
the plaintiff should not have/* the best French texts simply 
authorize ** to have." 



Chap. Vm.] RELEASES. 285 

as outlawry, [&c.] and divera other matters/ this may 
be well said an action, &e. 

§ 506. And I take it, that in a scire f acids upon a 
&ie, a release of all manner of actions is a good plea in 
har. 

§ 507. But where a man recovereth debt or damages, 
and it is agreed between them that the plaintiff shall not 
sue execution,^ then it behoveth that the plaintiff make 
a release to him of all manner of executions.* 

§ 508. Also, if a man release to another all manner 
of demands, this is the best release to him to whom the 
release is made, that he can have, and shall enure most 
to his advantage. For by such release of all manner of 
demands, all manner of actions reals, personals, and 
actions of appeal, are taken away and extinct, and all 
manner of executions are taken away and extinct. 

§ 509. And if a man hath title of entry into any 
lands or tenements, by such a release his title is taken 
away. 

[iSerf queers de hoc, for Fitz-James, Chief Justice of 
England, holdeth the contrary, because an entry cannot 
be properly said a demand.]* 

§ 510. And if a man hath a rent service or rent 
charge, or common of pasture, &c., by such a release of 

1 { therefore J- 

'Iniitead of *' shall not sue execution,** the best French texts 
authorize " shall be ousted of action.'* 

• ^ &c. )^ 

*Coke says : *' This is an addition » and no part of Littleton, 
and the opinion here cited clearly against law." 



236 RELEASES. [Book III. 

all manner of demands made to the tenants of the land 
out of which the service or the rent is issuing, or in 
which the common is, the service, the rent, and the com- 
mon, is taken away and extinct, &c. 

§ 511. Also, if a man releaseth to another all man- 
ner of quarrels, or all controversies or debates between 
them, &c., quaere, to what matter and to what effect such 
words shall extend themselves, &c. 

§ 512. Also, if a man by his deed be bound to an- 
other in a certain sum of money, to pay at the feast of 
St Michael next ensuing,* if the obligee before the said 
feast release to the obligor all actions, he shall be barred 
of the duty for ever, and yet he could not have an action 
at the time of the release made. 

§ 513. But if a man letteth land to another for a 
year, to yield to him at the feast of St. Michael next en- 
suing forty shillings and afterwards, before the same 
feast, he releaseth to the lessee all actions, yet after the 
same feast he shall have an action of debt for the non- 
payment of the forty shillings, notwithstanding the said 
release. Stude causam dwersitatis between these two 
cases. 

§ 514. Also, where a man will sue a writ of right, it 
behoveth that he counteth of the seisin of himself, or of 
his ancestors, and also that the seisin was in the same 
king's time, as he pleadeth in his plea. For this is an 
ancient law used, as appeareth by the report of a plea 



Chap. VIII.] RELEASES. 237 

the eyre of Nottingham,^ [tit. Droit in Fitzherbert, 
cap. 26,] in this form following. John Barre brought 
his writ of right against Reynold of Assington, and de- 
manded certain lands, &c., [where] the mise is joined 
in bank, and the original and the process were sent be- 
fore the justices errants, where the parties came, and 
the [twelve] knights were sworn without challenge of 
the parties, to be allowed, because that choice was made 
by assent of the parties, with the four knights, and the 
oath was this : That I shall say the truth, &c., whether 
R. of A. hath more mere right to hold the tenements 
which John Barre demandeth against him by his writ 
of right, or John to have them, as he demandeth, and for 
nothing to let to say the truth, so help me God, &c., with- 
out saying to their knowledge. And the like oath shall 
be made in an attaint, and in battle, (and in wager of 
law, for these do bring every thing to an end. But John 
Barre counted of the seisin of one Ralfe his ancestor in 
the time of King Henry, and Reynold upon the mise^ 
joined tendered half a mark for the time, &c. And 
hereupon Ilerle, Justice, said to the grand assise after 
that they were charged upon the mere right, You good 
men, Reynold gave half a mark to the king for the time, 
to the intent that if you find that the ancestor of John 
was not seised in the time that the demandant hath 
pleaded, you shall inquire no further upon the right; 

1 Coke says : " This should be Northampton, according to the 
original." 
*I.c. issue. 



RELEASES. [Book m. 

and for this^ yon shall tell us, whether the ancestor of 
John (Ralfe by name) was seised in King Henry's 
time, as he hath pleaded, or not. And if you find that 
he was not seised in this time, you shall inquire no 
more ; and if you find that he was seised, then you shall 
inquire further of the writ.* And after^ the grand 
assise came in with their verdict, and said, that Ralfe 
was not seised in the time of King Henry, whereby it 
was awarded that Reynold should hold the tenements 
demanded against him, to him and his heirs quit of 
John Barre, and his heirs to the remnant. And John 
in mercy, &c. And the reason why I have shewed to 
thee, my son, this plea, is to prove the matter precedent 
which is said in a writ of right ; for it seemeth by this 
plea, that if Reynold had not tendered the half mark to 
inquire of the time, &c., then the grand assise ought to 
be charged only to inquire of the mere right, and not of 
the possession, &c. [And] so always in a writ of right, 
if the possession whereof the demandant counteth be in 
the king's time, as he hath pleaded, then the charge of 
the grand assise shall be only upon the mere right, al- 
though that the possession were against the law, as it is 
said before in this chapter, &c. 

1 Instead of ' ' writ," the earliest French texts authorize ** right. '*^ 
' J.e. afterwards. 



CHAPTER IX. 

CONFIBMATION. 

§ 515. A deed of confirmation is commonly in this 
form, or to this effect: Know all men, dec, that I A. of 
B. have ratified, approved, and confirmed to C of D. 
{he estate and possession which I have,^ of and in one 
messuage, &c., with the appurtenances in F., £c. 

§ 516. And in some case a deed of confirmation is 
good and available, where in the same case a deed of re- 
lease is not good nor available. As if I let land to a 
man for term of his life, who letteth the same to another 
for term of forty years, by force of which he is in pos- 
session ; if I by my deed confirm the estate of the tenant 
for years, and after the tenant for life dieth during the 
term of * years, I cannot enter into the land during the 
said term. 

§ 617. Yet if I by my deed of release had released 
to the tenant for years in the life-time of the tenant for 

^ RitBo's Science of the Law, 112, says : " We should read. . . 
' lie hath,' . . .and not ..." I hare.* " Hargjave and Butler *8 notes, 
citing Ritso, say : ''It seems that the text should be read as if 
Littleton had in this place ^used the words ' he hath,* instead of 
* I have,' " Yet ** I have " is authorised by the best texts. 

' i forty. > 

239 



240 CONFIRMATION. [Book IH. 

life, this release shall be void, for that then there was 
not any privity between me and the tenant for years :* 
for a release is not available to the tenant for years, but 
where there is a privity between him and him that re- 
leaseth. 

§ 518. In the same manner it is, if I be disseised, 
and the disseisor make a lease to another for term of 
years, if I release to the termor, this is void: but if I 
confirm the estate of the termor,^ this is good and 
effectual. 

§ 519. Also, if I be disseised, and I confirm the 
estate of the disseisor, he hath a good and rightful estate 
in fee simple, albeit in the deed of confirmation no men- 
tion be made of his heirs, because he had fee simple at 
the time of the confirmation. For in such case, if the 
disseisee confirm the estate of the disseisor, to have and 
to hold to him and his heirs of his body engendered, or 
to have and to hold to him for term of his life, yet the 
disseisor hath a fee simple, and is seised in his demesne 
as of fee, because when his estate was confirmed, he had 
then a fee simple, and such deed cannot change his 
estate, without entry made upon him, &c. 

§ 520. In the same manner it is, if his estate be con* 
firmed for term of a day, or for term of an hour, he hath 
a good estate in fee simple, for this, that [his] estate in 

^Instead of ** me and the tenant for years," the best French 
texts authorize ** him and me." 

^ Instead of ** the estate of the termor," the best French texts 
authorize " his estate." 



Chap. IX.] CONFIRMATION. 241 

fee simple was once confirmed. Quia confirmare idem 
est, quod firmum facere', die, 

§ 521. Also, if my disseisor maketh a lease for life, 
the remainder over in fee, if I release to the tenant for 
life, this shall enure to him in the remainder. But if I 
confirm the estate of the tenant for term of life, yet 
after his decease I may well enter, because nothing is 
confirmed but the estate of the tenant for life, so that 
after his decease I may enter. But when I release all 
my right to the tenant for life, this shall enure to him in 
the remainder or in the reversion, because all my right 
is gone by such release. But in this case, if the disseisee 
confirm the estate and title of him in the remainder 
without any confirmation made to tenant for life, the 
disseisee cannot enter upon the tenant for term of life, 
for that the remainder is depending upon the estate for 
life ; and if his estate should be defeated, the remainder 
should be defeated by the entry of the disseisee, and it 
is no reason that he by his entry should defeat the re- 
mainder against his confirmation, &c. 

§ 522. Also, if there be two disseisors, and the dis- 
seisee releaseth to one of them, he shall hold his com- 
panion out of the land. But if the disseisee confirm the 
estate of the one, without more saying in the deed, some 
say that he shall not hold his companion out, but shall 
hold jointly with him, for that nothing was confirmed 
but his estate, which was joint, &c. 

§ 523. And for this some have said, that if two joint- 
tenants be, and the one confirm the estate of the other. 



242 CONFIRMATION. [Book III. 

that he hath but a joint estate, as he had before. But if 
he hath such words in the deed of confirmation, to have 
and to hold to him and to his heirs all the tenements 
whereof mention is made in the confirmation, then he 
hath a sole estate in the tenements, [&c.] And there- 
fore it is a good and sure thing in every confirmation to 
have these words, to have and to hold the tenements, &c., 
in fee, or in fee tail, or for term of life, or for term of 
years, according as the case [is,] or the matter lieth. 

§ 524. For to the intent of some, if a man letteth 
land to another for life, and after confirm his estate 
which he hath in the same land, to have and to hold his 
estate to him and to his heirs, this confirmation as to his 
heirs is void, for his heirs cannot have his estate, which 
was [not] but for term of his life. But if he confirm 
his estate by these words, to have the same land to him 
and to his heirs, this confirmation maketh a fee simple 
in this case to him in the land, for that the [words] to 
have and to hold, &c., goeth to the land, and not to the 
estate which he hath, &c. 

§ 525. Also, if I let certain land to a feme sole for 
term of her life, who taketh husband, and after I con- 
firm the estate of the husband and wife, to have and to 
hold* for term of their two lives ; in this case the hus- 
band doth not hold jointly with his wife, but holdeth iu 
right of his wife for term of her life. But this con- 
firmation shall enure to the husband by way of remain- 
der for term of his life, if he surviveth his wife. 
1 -{ the land. }» 



Chap. IX.] CONFIRMATION. 

§ 526. But if I let land to a feme sole for term of 
years, who taketh husband, and after I confirm the 
estate of the husband and his wife, to have and to hold 
the land for term of their two lives: in this case they 
have a joint estate in the freehold of the land, for that 
the wife had no freehold before, &c. 

§ 527. Also, if my disseisor granteth to one a rent 
charge out of the land whereof he disseised me, and I 
rehearsing the said grant confirm the same grant, and 
all that which is comprised within the same grant, and 
after I enter upon the disseisor; quosre, in this case, if 
the land be discharged of the rent or no.* 

§ 528. Also, if a parson of a church charge the glebe 
land of his church by his deed, and after the patron and * 
ordinary confirm the same grant, [and all that is com- 
prised in the same grant,] then the grant shall stand in 
his force, according to the purport of the same grant. 
But in this case it behoveth that the patron hath a fee 
simple in the advowson ; for if he hath but an estate for 
life or in tail, in the advowson, then the grant shall 
[not] stand but during his life, and the life of the par- 
son which granted, &c. 

§ 529. Also, if a man letteth land for term of life, 
the which tenant for life charge the land with a rent in 
fee, and he in the reversion confirm the same grant, the 
charge is good enough and effectual. 

§ 530. Also, if there be a perpetual chantery, where- 
with the ordinary hath nothing to do or meddle ; quosre. 



244 CONFIRMATION. [Book III. 

if the patron of the chantery, and the chaplain of the 
same chantery, may charge the chantery with a rent 
charge in perpetuity. 

§ 531. Also, in some case this verb dedi, or this verb 
coJicessi, hath the same effect in substance, and shall 
«nure to the same intent as this verb confirmavi. As if 
I be disseised of a carve* of land, and P make such a 
•deed ; Sciant prossentes, <&c,, quod dedi to the disseisor, 
£&c., or quod concessi to the said disseisor,] the said 
•carve, &c., and I deliver only the deed to him without 
:any livery of seisin of the land, this is a good confirma- 
tion, and as strong in law, as if there had been in the 
deed this verb confirm art, &c. 

§ 532. Also, if I let land to a man for term of years, 
by force whereof he is in possession, &c., and after^ I 
make a deed to him, &c., quod dedi et concessi, &c,, the 
said land, to have for term of his life, and I deliver to 
him the deed, &c., then presently he hath an estate in 
the land for term of his life. 

§ 633. And if I say in the deed, to have and to hold 
to him and to his heirs of his body engendered, he hath 
an estate in fee tail. And if I say in the deed, to have 
and to hold to him and to his heirs, he hath an estate in 
fee simple : For this shall enure to him by force of the 
confirmation to enlarge his estate. 

§ 534. Also, if a man be disseised, and the disseisor 

1 I.e. a carucate, or a ploughland. 
« ^ afterwards J- 
• J.e. afterwards. 



Chap. IX.] CONFIRMATION. 245 

die seised, and his heir is in by descent, and aftcr^ the 
disseisee and the heir [of the disseisor] make jointly a 
deed to another in fee, and livery of seisin is made upon 
this, (as to the heir of the disseisor that sealed the deed) 
the tenements do pass [and enure] by the same deed by 
way of feoffment ; and as to the disseisee who sealed the 
same deed, this shall enure but by way of colifirmation. 
But if the disseisee in this case brings a writ of entry in 
the per and cui against the alienee of the heir of the dis- 
seisor, quaere, how he shall plead this deed against the 
demandant by way of confirmation, &c. And know, my 
son, that it is one of the most honourable, laudable, and 
profitable things in our law, to have the science of well 
pleading in actions reals and personals; and therefore 
I counsel thee especially to employ^ thy courage and 
care to learn this.^ 

§ 535. Also, if there be lord and tenant, albeit* the 
lord confirm the estate which the tenant hath in the 
tenements, yet the seigniory remaineth entire to the lord 
as it was before. 

§ 536. In the same manner is it if a man hath a 
rent-charge out of certain land, and he confirm the estate 
which the tenant hath in the land, yet the rent-charge 
remaineth to the confirmor. 

§ 537. In the same manner it is, if a man hath com- 

ij. e. afterwards. 

* Instead of '* albeit/' the best French texts authorize '' and.'' 



246 CONFIRMATION. [Book III. 

mon of pasture in other land, if he confirm the estate of 
the tenant of the land, nothing shall pass from him of 
his common; but notwithstanding this, the common 
shall remain to him as it was before. 

§ 638. But if there be lord and tenant, which tenant 
holdeth of his lord by the service of fealty and twenty 
shillings rent, if the lord by his deed confirm the estate 
of the tenant, to hold by twelve pence, or by a penny, or 
by a halfpenny : in this case the tenant is discharged of 
all the other services, and shall render nothing to the 
lord, but that which is comprised in the same confirma- 
tion. 

§ 639. But if the lord will by his deed of confirma- 
tion, that the tenant in this case shall yield to him a 
hawk or a rose yearly at such a feast, &c., this confirma- 
tion* is void, because he reserveth to him a new thing 
which was not parcel of his services before the confirma- 
tion: and so the lord may well by such confirmation 
abridge the services [by which the tenant holdeth of 
him], but he cannot reserve to him new services. 

§ 540. Also, if there be lord, mesne, and tenant, and 
the tenant is an abbot, that holdetli of the mesne by cer- 
tain services yearly, the which hath no cause to have 
acquittance against his mesne, for to bring a writ of 
mesne, [&c.,] in this case, if the mesne confirm the 
estate that the abbot hath in the land, to have and to 
hoid the land unto him and his successors in frankal- 

^ Instead of ** confirmation,*' the best French texts authorize 
** reservation." 



Chap. IX.] CONFIRMATION. 247 

moign, or free alms^ &e., in this case this confirmation 
is good, and then the abbot holdeth of the mesne in 
frankalmoign. And the cause is, for that no new serv- 
ice is reserved, for all the services specially specified be 
extinct, and no rent is reserved [to the mesne,] but the 
abbot shall hold the land of him as it was before the 
confirmation ; for he that holdeth in frankalmoign ought 
to do no bodily service; so [that] by such confirmation 
it appeareth, the mesne shall not reserve unto him any* 
new service, but that the land shall be holden of him as 
it was before. And in this case the abbot shall have a 
writ of mesne, if he be distrained in his default, by 
force of the said confirmation, where per case ho might 
not have such a writ before. 

§ 541. Also, if I be seised of a villein as of a villein 
in gross, and another taketh him out of my possession, 
claiming him to be his villein [there, where he hath no 
right to have him as his villein,] and after I confirm to 
him the estate which he hath in my villein, this confirm- 
ation seemeth to be void, for that none may have pos- 
session of a man as of a villein in gross, but he which 
hath right to have him as his villein in gross. And so 
in as much as he to whom the confirmation was made, 
was not seised of him as of his villein at the time of the 
confirmation made, such confirmation is void. 

^Instead of ** any," the translation in Co. Lit. has ** no." Rit- 
so*s Science of the Law, 110, points out that a wrong translation 
of aueiin caused the word to be ** no," instead of " any." Har- 
grave and Butler make the amendment in their text. 



248 CONFIRMACION. [Book III. 

§ 542. But in this case, if these words were in the 
deed, [&c.] Sciatis me dedisee et concessisse, \_tali,'] 
&c,, talem villanum meuniy this is good ; but this shall 
enure by force and way of grant, and not by way of con- 
firmation, &c. 

§ 543. And^ sometimes these verbs dedi et concessi 
shall enure by way of extinguishment of the thing given 
or granted; as if a tenant hold of his lord by certain 
rent, and the lord grant by his deed to the tenant and 
his heirs the rent, &c., this shall enure to the tenant by 
way of extinguishment, for by this grant the rent is 
extinct, &c. 

§ 544. In the same manner it is, where one hath a 
rent-charge out of certain land, and he grant to the ten- 
ant of the land the rent-charge, &c. And the reason is, 
for that it appeareth, by the words of the grant, that the 
will of the donor is, that the tenant shall have the rent, 
&c. And in as much as he cannot have or perceive any 
rent out pf his own land, therefore the deed shall be in- 
tended and taken for the most advantage and avail for 
the tenant that it may be taken, and this is by way of 
extinguishment. 

§ 545. Also, if I let land to a man for term of years, 
and after I confirm his estate without putting more 
words in the deed, by this he hath no greater estate than 
for term of years, as he had before. 

546. But if I release to him all my right which I 
have in the land without putting more [words] in the 
" Instead of " And," the best French texts authorize ** Also." 



Chap. IX.] CONHRMATION. 249 

deed, he hath an estate of freehold. ^So thou mayest 
understand, my son, divers great diversities between 
releases and confirmations. 

§ 547. Also, if I being within age let land to another 
for term of twenty years, and after he granteth the land 
to another for term of ten years, so he granteth but par- 
cel of his term : in this case when I am of full age, if I 
release to the grantee of my lessee, &c., this release is 
void, because there is no privity between him and me, 
&c. But if I confirm his estate, then this confirmation 
is good. But if my lessee grant all his estate to another, 
then my release made to the grantee is good and effec- 
tual. 

§ 548. Also, if a man grant a rent-charge issuing out 
of his land to another for term of his life, and after he 
confirmeth his estate in the said rent, to have and to hold 
to him in fee tail or in fee simple ; this confirmation is 
void as to enlarge his estate, because he that confirmeth 
hath not any reversion in the rent. 

§ 549. But if a man be seised in fee of a rent-service 
or rent-charge, and he grant the rent to another for life, 
and the tenant attometh, and after he confirmeth the 
estate of the grantee in fee tail, or in fee simple, this 
confirmation is good, as to enlarge his estate according 
to the words of the confirmation, for that he which con- 
firmed^ at the time of the confirmation had a reversion 
of the rent. 

1 i And J- 

• -{ the estate. }- 



250 CONFIRMATION. [Book III. 

§ 550. But in the case aforesaid, where a man grants 
a rent-charge to another for term of life, if he will that 
the grantee should have an estate in tail or fee, it be- 
hoveth that the deed of grant of the rent-charge for term 
of life be surrendered or cancelled, and then to make a 
new deed of the like rent-charge, to have and perceive to 
the grantee in tail or in fee, &c. Ex paucis plurima con- 
cipit ingenium.^ 

^ Some of the earliest texts hare the concluding sentence in 
the following form: **Expauci8 dictis iiitendere plurima potes. 



CHAPTER X. 

ATTORNMENT. 

§ 651. Attornment is as if there be lord and tenant, I 
and the lord will grant by his deed the services of his 
tenant to another for term of years, or for term of life, 
or in tail, or in fee, the tenant must attorn to the grantee 
in the life of the grantor, by force and virtue of the 
grant, or otherwise the grant is void. And attornment 
is no other in effect, but when the tenant hath heard of 
the grant made by his lord, that the same tenant do 
agree by word to the said grant, as to say to the grantee, 
I agree to the grant made to you, [&c.,] or I am [well] 
content with the grant made to you : but the most com- 
mon attornment is, to say,^ Sir, I attorn to you by force 
of the said grant, or I become your tenant, &c., or to 
deliver to the grantee a penny, or a halfpenny, or a 
farthing, by way of attornment. 

§ 552. Also, if the lord grant the service of his ten- 
ant to one man, and after by his deed bearing a later 
■date he grant the same services to another, and the ten- 
ant attorn to the second grantee, now the said^ grantee 

2 Instead of " said," the best French texts authorize ** second." 

251 



252 ATTORNMENT. [Book IH. 

hath the services ; and albeit afterwards the tenant will 
t^attorn to the first grantee, this is clearly void, &c. 

§ 553. Also, if a man be seised of a manor, which 
manor is parcel in demesne, and parcel in service, if he 
will alien this manor to another, it behoveth that by 
force of the alienation, all the tenants which hold of the 
alienor as of his manor^ do attorn to the alienee, or 
otherwise the services remain continually in the alienor^ 
saving the tenants at will f for it needeth not that ten- 
ants at will do attorn upon such alienation, &c.' 

§ 554. Also, if there be lord and tenant, and the tea- 
ant letteth the land to another for term of life, or giveth 
the land in tail saving the reversion to himself, &c., if 
the lord in such case grant his seigniory to another, it 
behoveth that he in the reversion attorn to the grantee, 
and not the tenant for term of life, or the tenant in tail, 
because that in this case he in the reversion is tenant to 
the lord, and not the tenant for term of life, nor the ten- 
ant in tail. 

§ 555. In the same manner is it where there are 
lord, mesne, and tenant, if the lord will grant the serv- 
ices of the mesne, albeit he maketh no mention in his 
grant of the mesne, yet the mesne ought to attorn, [&c.,] 
and not the tenant prevail, &c., for that the mesne is 
tenant unto him, &c. 

§ 556. But otherwise it is where certain land is 

* { because the same lands and tenements which they liold at 
will pass to the alienee by force of such alienation. )- 



Chap. X.] ATTORNMENT. 263 

charged with a rent charge or rent seek ; for in such case 
if he which hath the rent charge grant this to another, 
it behoveth that the tenant of the freehold attorn to the 
grantee, for that the freehold discharged with the rent, 
&c. And in a rent charge, no avowry ought to be made 
upon any person for the distress taken, &c., but he shall 
avow the priseP to be good and rightful, as in lands or 
tenements so charged with his distress, &c. 

§ 557. Also, if there be lord and tenant, and the ten- 
ant letteth his tenement to another for term of life, the 
remainder to another in fee, and after the lord grant the 
services to another, &c. and the tenant for life attorn, 
this is good enough, for that the tenant for life is tenant 
in this case to the lord, &c. and he in the remainder 
cannot be said to be tenant to the lord, as to this intent, 
until after the death of the tenant for life ; yet in this 
case if he in the remainder dieth without heir, the lord 
shall have the remainder by way of escheat, because that 
albeit the lord in such case ought to avow upon the ten- 
ant for life, &c., yet the whole entire tenement, as to all 
the estates of the freehold or of fee simple, or otherwise, 
&c., in such case are together holden of the lord, &c. 

[But not to make avowry upon them all together. M. 
3 H. VL]2 

§ 558. Also, if there be lord and tenant, and the ten- 
ant letteth the tenements to a woman for life, the re- 

^ Le, the taking. 

' Coke says : '* This is added to Littleton, but it is consonant 
to law, and the authority truly cited." 



254 ATTORNMENT. [Book IIL 

mainder over in fee, and the woman taketh husband^ 
and after the lord grant the services, &c., to the hus- 
band and his heirs ; in this case the service is put in sus- 
pense during the coverture. But if the wife die, living 
the husband, the husband and his heirs shall have the 
rent of them in the remainder, &c. And in the case 
there needeth no attornment by parol, &c., for that the 
husband which ought to attorn, accepted the deed of 
grant of the services, &c., the which acceptance is an 
attornment in the law. 

§ 559. In this same manner is it, if there be lord 
and tenant, and the tenant taketh wife, and after^ the 
lord grant the services to the wife and her heirs,^ and 
the husband accepteth the deed; in this case after the 
death of the husband the wife and her heirs shall have 
the services, &c., for by the acceptance [of the deed] by 
the husband, this is a good attornment, &c., albeit 
during the coverture the services shall be put in sus- 
pense, &c. 

§ 560. Also, if there be lord and tenant, and the 
tenant grant the tenements to a man for term of his life, 
the remainder to another in fee, if the lord grant the 
services to the tenant for life [in fee,] in this case the 
tenant for term of life hath a fee in the services; but 

^ I.e. afterwards. 

*-* Instead of ** the services to the wife and her heirs," the trans- 
lation in Co. Lit. has ** his services to the wife and his heirs.** 
Ritso's Science of the Law, 113, points out the proper transla- 
tion. Hargrave and Butler's notes approve the amendment. 



Chap. X.] ATTORNMENT. 265 

the services are put in suspense during his life. Bui 
the heit-s [of the tenant for life] shall have the services 
after his decease, [&c.] And in this case there needeth 
no attornment : for by the acceptance of the deed by him 
which ought to attorn, &c., this is an attornment of 
itself.^ 

§ 661. But where the tenant hath as great and as 
high estate in the tenements as the lord hath in the 
seigniory ; in such case, if the lord grant the services to 
the tenant in fee, this shall endure by way of extinguish- 
ment. Causa patet. 

§ 662. Also, if there be lord and tenant, and the ten- 
ant maketh a lease to* a man for term of his life, saving 
the reversion to himself, if the lord grant the seigniory 
to tenant for life in fee, in this case it behoveth that he 
in reversion must attorn to the tenant for life by force 
of this grant, or otherwise the grant is void, for that his 
in the reversion is tenant to the lord, &c. 

[Yet he shall not hold of the tenant for life during 
his life. Causa patet, (£c.Y 

§ 563. Also, if there be lord and tenant, and the ten- 
ant holdeth of the lord by xx. manner of services, and 
the lord grant his seigniory to another; if the tenant 
pay in deed any parcel of any of the services to the gran- 
tee, this is a good attornment, of and for all the services, 
albeit the intent of the tenant was to attorn but for this 

M Ac. ^ 

3 Coke says : " This is added, and not in the original, and is 
against law, and tlierefore to be rejected." 



256 ATTORNMENT. [Book III. 

parcel, for that the seigniory is^ entire, although there 
be divers manners of services which the tenant ought to 
do, &c. 

§ 564. Also, if there be lord and tenant, and the ten- 
ant holdeth of the lord by many kind of services, and 
the lord grant the services to another by fine; if the 
grantee sue a scire facias out of the same fine for any 
parcel of the services, and hath judgment to recover, 
this judgment is a good attornment in law for all the 
services.^ 

§ 565. Also, if the lord of a rent service grant the 
services to another, and the tenant attorn by a penny, 
and after the grantee distrain for the rent behind, and 
the tenant make rescous; in this case the grantee shall 
not have an assise for the rent, but a writ of rescous, 
because the giving of the penny by the tenant was not 
but by way of attornment, &c. But if the tenant had 
given to the grantee the said penny as parcel of the 
rent, or a halfpenny or a farthing by way of seisin of 
the rent, then this is a good attornment, and also it is a 
good seisin to the grantee of the rent; and then upon 
such rescous the grantee shall have an assise, &c. 

§ 566. Also, if there be many joint tenants which 
hold by certain services, and the lord grant to another 
the services, and one of the joint-tenants attorn to the 
grantee, this is as good as if all had attorned, for that 
the seigniory is entire, &c. 

* -{ bnt one and )- 



Chap. X.] ATTORNMENT. 257 

§ 567. Also, if a man letteth tenements for term of | 
jears, by force of which lease the lessee is seised, and 
after the lessor by his deed grant the reversion to an- 
other for term of life, or in tail, or in fee ; it behoveth in 
such case that the tenant for years attorn, or otherwise 
nothing shall pass to such grantee by such deed. And 
if in this case the tenant for years attorn to the grantee, 
then the freehold shall presently pass to the grantee by 
such attornment without any livery of seisin, &c., be- 
cause if any livery of seisin, &c., should be or were need- 
ful to be made, then the tenant for years should be at 
the time of the livery of seisin ousted of his possession, 
which should be against reason, &c. 

§ 568. Also, if tenements be letten to a man for term 
of life, or given in tail, saving the reversion, &c., if he 
in theiveversion in such case grant thdc/eversion to an- 
other by his deed, it behoveth that the tenant of the land 
attorn to the grantee in the life of the grantor, or other- j 
wise the grant is void.* 

§ 569. In the same manner is it, if land be [granted 
in tail, or] let to a man for term of life, the remainder 
to another in fee,^ if he in the remainder will grant this 
remainder to another, &c., if the tenant of the land 
attorn in the life of the grantor, then the grant of such 
a remainder is good, or otherwise not. 

§ 570. [P. 12 Edw. IV. It 18 there holden by the 
whole court, that tenant in tail shall not be compelled 

M &c. ^ 

* Instead of ** in fee," the best French texts give " &c." 

17 



258 ATTORNMENT. [Book III. 

to attorn, but if he will attorn gratis, it is good 
enough.]^ 

§ 571. Also, if land be let to a man for years, the re- 
mainder to another for life, reserving to the lessor a 
certain rent by the year, and livery of seisin upon this 
is made to the tenant for years ; if he in the reversion in 
this case grant the reversion to another, [&c.,] and the 
tenant which is in the remainder after the term of years 
attorn, this is a good attornment, and he to whom this 
reversion is granted by force of such attornment shall 
distrain the tenant for years for the rent due after such 
attornment, albeit that the tenant for years did never 
attorn unto him. And the cause is, for that where the 
reversion is depending upon an estate of freehold, it 
suflSceth that the tenant of the freehold do attorn upon 
such a grant of the reversion, &c. 

§ 572. And it is to be understood, that where a 
lease for years or for life, or a gift in tail, is made to 
any man, reserving to such lessor or donor a certain 
rent, &c., if such lessor or donor grant his reversion to 
another, and the tenant of the land attorn, the rent 
passeth to the grantee, although that in the deed of the 
grant of the reversion no mention be made of the rent, 
for that the rent is incident to the reversion in such 
case, and not e converso, &c. For if a man will grant 
the rent in such case to another, reserving to him the 
reversion of the land, albeit the tenant attorn to the 
grantee, this shall be but a rent seek, &c. 

1 Coke says : *' This is added to Littleton." 



Chap. X.] ATNORNMENT. 259 

§ 573. Also, if a man let land to another for his life, 
and after he confirm by his deed the estate of the tenant 
for life, the remainder to another in fee, and the tenant 
for life accepteth the deed, then is the remainder in fait 
in him to whom the remainder is given or limited by the 
same deed. [For] by the acceptance of the tenant for 
life [of the deed,] this is an agreement of him, and so 
an attornment in law. But yet he in the remainder shall 
not have any action of waste, nor other benefit by such 
remainder, unless that he hath the said deed in hand, 
whereby the remainder was entailed or granted to him. 
And because that in such case the tenant for life perad- 
venture will retain the deed to him, to this intent, that 
he in the remainder should not have any action of waste 
against him, for that he cannot come to have the deed 
in his possession, it will be [a] good [and sure thing] 
in such case for him in the remainder, that a deed in- 
dented be made by him which will make such confirma- 
tion, and the remainder over, &c., and that he which 
maketh such confirmation deliver one part of the inden- 
ture to the tenant for life, and the other part to him 
that shall have the remainder. And then he by shew- 
ing of that part of the indenture may have an action of 
waste against the tenant for life, and all other advan- 
tages that he in ther emainder may have in such a 
case, &c. 

§ 574. Also, if two joint-tenants be, who let their 
land to another for term of life, rendering to them and 
to their heirs a certain yearly rent ; in this case, if one 
19 



260 ATTORNMENT. [Book IIL 

of the joint-tenants in the reversion release to the other 
joint-tenant in the same reversion, this release is good, 
and he to whom the release is made shall have only the 
rent of the tenant for life, and shall only have a writ of 
waste against him, although he never attorned by force 
of such release, [&c.] And the reason is, for the priv- 
ity which once was between the tenant for life and them 
in the reversion. 

§ 575. In the same manner, and for the same cause 
is it, where a man letteth land to. another for life, the 
remainder to another for life, reserving the reversion to 
the lessor* ; in this case if he in the reversion releaseth to 
him in the remainder and to his heirs all his right, &c., 
then he in the remainder hath a fee, &c., and he shall 
have a writ of waste against the tenant for life without 
any attornment of him, &c. 

§ 576. Also, if a man let lands or tenements to an- 
other for term of years, and after he oust his termor, 
and thereof enfeoflF another in fee, and after the tenant 
for years enter upon the feoffee, claiming his term, &c., 
and after doth waste ; in this case the feoffee shall have 
by law a writ of waste against him, and yet he did not 
attorn [unto him]. And the cause is, as I suppose, for 
that he which hath right to have lands or tenements for 
years, [or otherwise,] should not by law be misconusant 
of the feoffments which were made of and upon the 
same lands, &c. And inasmuch as by such feoffment 
the tenant for years was [put out of his possession, and 

1 Instead of " the lessor," the best French texts authorize " him.** 



Chap. X.] ATTORNMENT. 261 

by his entry he caused the reversion to be to him to 
whom the feoffment was] made, this is a good attorn- 
ment ; for he to whom the feoffment was made, had no 
reversion before the tenant for years had entered upon 
him, for that he was in possession in his demesne as of 
fee, and by the entry of the tenant for years, he hath 
but a reversion, which is by the act of the tenant for 
years, scil. by his entry, &c. 

§ 577. The same law is, as it seemeth, where a lease 
is made for life, saving the reversion to the lessor, if 
the lessor disseise the lessee, and make a feoffment in 
fee, if the tenant for life enter and make waste, the 
feoflFee shall have a writ of waste without any other at- 
tornment, causa qua supra, &c. 

§ 578. Also, if a lease be made for life, the remain- 
der to another in tail, the remainder over to the right 
heirs of the tenant for life ; in this case, if the tenant 
for life grant his remainder in fee to another by his 
deed, this remainder maintenant passeth by the deed 
without any attornment, [&c.,] for that if any ought to 
attorn in this case, it should be the tenant for life, and 
in vain it were that he should attorn upon his own grant, 
&c. 

§ 579. Also, if there be a lord and tenant, and the 
tenant holdeth of the lord by certain rent and knight's 
service, if the lord grant the services of his tenant by 
fine, the services are presently in the grantee by force 
of the fine ; but yet the lord* may not distrain for any 

^ Hargrave and Butler's notes say : ** /.e. the grantee of the 



ATTORNMENT. [Book III. 

parcel of the services, without attornment: but if the 
tenant dieth, his heir within age, the lord shall have the 
albeit he never attorned, because that the seigniory was 
wardship of the body of the heir, and of his lands, &c., 
in the grantee presently by force of the fine. And also 
in such case, if the tenant die without heir, the lord 
shall have the tenancy by way of escheat. 

§ 580. In the same manner it is, if a man grant the 
reversion of his tenant for life to another by fine, the 
reversion maintenant passeth to the grantee by force 
of the fine, but the grantee shall never have an action 
of waste without attornment, &c. 

§ 681. But yet if the tenant for life alieneth in fee, 
the grantee may enter, &c., because the reversion was in 
him by force of the fine, and such alienation was to his 
disheritance. 

§ 582. But in this case, where the lord granteth the 

services of his tenant by fine, if the tenant die, his heir 

being of full age, the grantee by the fine shall not have 

relief, nor shall ever distrain for relief, unless that he 

hath the attornment of the tenant that dieth* : for of 

such a thing which lieth in distress, whereupon the writ 

of replevin is sued, &c., a man must and ought to avow 

the taking good and rightful, &c. and there there ought 

to be an attornment of the tenant, although the grant of 

such a thing be by fine : but to have the wardship of the 

lands or tenements so holden during thq nonage of the 

services. . . . The grantee of the services is supposed to become 
law by virtue of the grant." 



Chap. X.J ATTORNMENT. 263 

heir, or to have them by way of escheat, there needs no 
distress, &c. but an entry into the land by force of the 
right of the seigniory, which the grantee hath by force 
of the fine, &c. Sic vide diversitalem, &c. 

§ 583. Also, if there be lord, mesne, and tenant, and 
the mesne grant by fine the services of his tenant to an- 
other in fee, and after the grantee die without heir, now 
the services of the mesnalty shall come and escheat to 
the lord paramount by way of escheat ; [and] if after- 
wards the services of the mesnalty be behind, in this 
case he which was lord paramount may distrain the 
tenant, notwithstandii^ that the tenant did never at- 
torn : and the cause is, for that the mesnalty was in deed 
in the grantee by force of the [said] fine, and the lord 
paramount may avow upon the grantee, because in deed 
he was his tenant, albeit he shall not be compelled to this, 
&c. But if the grantor in this case had died without 
heir in the life of the grantee, then he should be com- 
pelled to avow upon the grantee ; and also inasmuch the 
lord paramount doth not claim the mesnalty by force 
of the grant made by fine levied by the mesne, but by 
virtue of his seigniory paramount, [viz.] by way of 
escheat, he shall avow upon the tenant for the Sjervices 
which the mesne had, &c., albeit that the tenant did 
never attorn. 

§ 584. In the same manner it is, where the reversion 
of a tenant for life is granted by fine to another in fee, 
and the grantee afterwards dieth without heir, now the 
lord hath the reversion by way of escheat ; and if after 



264 ATTORNMENT. [Book III. 

the tenant maketh waste, the lord shall have a writ of 
waste against him, notwithstanding that he never at- 
torned, causa qua supra. But where a man claimeth by 
force of the grant made by the fine,^ scil. as heir, or as 
assignee, &c. there he shall not distrain [nor avow,] nor 
have an action of waste, &c., without attornment. 

§ 585. Also, in ancient boroughs and cities, where 
lands and tenements within the same boroughs and cities 
are devisable by testament by custom and use, &c., if in 
such borough or city a man be seised of a rent service, or 
of a rent charge, and deviseth such rent or service to an- 
other by his testament, and dieth; in this case, he to 
whom such devise is made, may distrain the tenant for 
the rent or service arrear, although the tenant did never 
attorn. 

§ 586. In the same manner is it, where a man letteth 
such tenements devisable to another for life, or for 
years, and deviseth the reversion by his testament to an- 
other in fee, or in fee tail, and dieth, and after the ten- 
ant commits waste, he to whom the devise was made 
shall have a writ of waste, although the tenant doth 
never attorn. And ther eason is, for that the will of the 
devisor made by his testament shall be performed ac- 
cording to the intent of the divisor ; and if the effect of 
this should lie upon the attornment of the tenant,^ then 
perchance the tenant would never attorn, and then the 
will of the devisor should never be performed, [&c.,] 

M &c. ^ 



Chap. X.] ATTORNMENT. 265 

and for this the devisee shall distrain, &c., or he shall 
have an action of waste, &c., without attornment. For 
if a man deviseth such tenements to another by his testa- 
ment, habendum sibi in perpetuum, and dieth, and the 
devisee enter, he hath a fee simple, causa qua supra ;^ 
yet if a deed of feoffment had been made to him by the 
devisor, of the same tenements, habendum sibi in per- 
petuum, and livery of seisin were made upon this, he 
should have an estate but for term of his life. 

§ 587. Also, if a man be seised of a manor which is 
parcel in demesne and parcel in service, and is thereof 
disseised, but the tenants which hold of the manor do 
never attorn to the disseisor; in this case, albeit the 
disseisor dieth seised, and his heir is in by descent, &c.» 
yet may the desseisee distrain for the rent behind, and 
have the services, &c. But if the tenants come to the 
disseisor and say, we become your tenants, &c. or make 
to him some other attornment, &c., and after the dissei- 
sor dieth seised, then the disseisee cannot distrain for 
the rent, &c., for that all the manor descendeth to the 
heir of the disseisor, &c. 

§ 588. But if one holdeth of me by rent-service, 
which is a service in gross, [and not by reason of my 
manor,] and another that hath no right, claimeth the 
rent, and receives^ and taketh the same rent of my ten- 

M and 1^ 

'Instead of ** claimeth the rent and receives," the best French 
texts authorize *' claimeth the same rent to receive.*' 



266 ATTORNMENT. [Book III. 

ant by coercion of distress, or by other form, and dis- 
seiseth me by such taking of the rent ; albeit such dis- 
seisor dieth so seised in taking of the rent, yet after hsi 
death I may well distrain the tenant for the rent which 
was behind before the decease* of the disseisor, and also 
after his decease. And the cause is, for that such 
disseisor is not my disseisor but at my election and 
will. For albeit he taketh the rent of my tenant, &c., 
yet I may at all times distrain my tenant for the rent 
behind,^ so as it is to me but as if I will suffer the ten- 
ant to be so long time behind in payment of the same 
rent unto me, &c. 

§ 589. For the payment of my tenant to another to 
whom he ought not to pay, is no disseisin to me, nor 
shall oust me of my rent without my will and election, 
&c. For although I may have an assise against such 
pernor, yet this is at my election, whether I will take 
him as my disseisor, or no. So such descents of rents 
in gross shall not oust the lord of his distress, but at 
any time he may well distrain for the rent behind, &c. 
And in this case, if after the distress of him which so 
wrongfully took the rent, I grant by my deed the serv- 
ice to another, and the tenant attorn, this is good 
enough, and the services by such grant and attornment 
are presently in the grantee, &c. But otherwise it is 
where the rent is parcel of a manor, and the disseisor 

1 Instead of ** decease," the best French texts authorize '' dis- 
tress." 

« ^ &c. }" 



Chap. X.] ATTORNMENT. 267 

dieth seised of the whole manor, as in the case next be- 
fore is said, &c. 

§ 590. Also, if I be seised of a manor, parcel in 
demesne, and parcel in service, and I give certain acres 
of the land, parcel of the demesne of the same manor, to 
another in tail, yielding to me and to my heirs a certain 
rent, &c., if in this case I be disseised of the manor, and 
all the tenants attorn and pay their rents to the disseis- 
or, and also the said tenants in tail pay the rent, by me 
reserved to the disseisor, and after^ the disseisor dieth 
seised, &c., and his heir enter, and is in by descent, yet 
in this case I may well distrain the tenant in tail and 
his heirs, for the rent by me reserved upon the gift, 
sell, as well for the rent being behind before the descent 
to the heir of the disseisor, as also for the rent which 
happeneth to be behind after the same descent, notwith- 
standing such dying seised of the disseisor, &c. And 
the reason is, for that when a man giveth lands^ in tail, 
saving the reversion to himself, and he upon the said 
gift reserveth to himself a rent or other services, all the 
rent and services are incident to the reversion; and 
when a man hath a reversion he cannot be ousted of 
his reversion by the act of a stranger, unless that the 
tenant be ousted of his estate and possessions, &c. For 
as long^ as the tenant in tail and his heirs continue 
their possession by force of my gift, so long is the 

1 I.e., afterwards. 

2 ^ to another }- 
« ^ in this case J- 



268 ATTORNMENT. [Book III. 

reversion in me and in my heirs : and in as much as the 
rent and services reserved upon such gift be incident 
and depending upon the reversion, whosoever hath the 
reversion, shall have the same rent and services, &c. 

§ 591. In the same manner is it, where I let parcel 
of the demesnes of the maiior to another for term of life, 
or for term of years, rendering to me a certain rent, &c., 
albeit I be disseised of the manor, &c., and the disseisor 
die seised, [&c.,] and his heir be in by descent, yet I 
may distrain for the rent arrear ut supra, notwithstand- 
ing such descent : for when a man hath made such a gift 
in tail, or such a lease for life or for years of parcel of 
the demesnes of a manor, &c., saving the reversion to 
such donor or lessor, &c., and after he is disseised of 
the manor, &c., such reversion after such disseisin is 
severed from the manor in deed, though it be not sev- 
ered in right. And so thou mayest see (my son) a 
diversity, where here is a manor parcel in demesne and 
parcel in services, which services are parcel of the same 
manor, not incident to any reversion, &c., and where 
they are incident to the reversion, &c. 



CHAPTER XL 



DISCONTINUANCE. 



§ 592. Discontinuance is an ancient word in the 
law, and hath divers significations, &c. But as to one 
intent it hath this signification, viz., where a man hath 
aliened to another certain lands and tenements, and 
dieth, and another hath right to have the same land or 
tenements, but he may not enter into them because of 
such an alienation, &c. 

§ 593. As if an abbot be seised of certain lands or 
tenements in fee, and alieneth the same lands or tene- 
ments to another in fee, or in fee tail, or for term of life, 
and [after] the abbot dieth, his successor cannot enter 
into the said lands or tenements, albeit he hath right to 
have them as in right of his house, but he is put to his 
action to recover the same lands or tenements, which is 
called a writ; breve de ingressu sine assensu capiluli, 
[&c.] 

§ 594. Also, if a man be seised of land as in right of 
his wife, [&c.,] and thereof enfeoff another, [&c.,] and 
dieth, the wife may not enter, but is put to her action, 
the which is called, cui in vita, &c, 

§ 595. Also, if tenant iti tail of certain land thereof 
269 



270 DISCONTINUANCE. [BoOKlU. 

enfeoff another, &c., and hath issue and dieth, his issue 
may not enter into the land, albeit he hath title and 
right to this, but is put to his action, which is called a 
formedon in le discender, &c, 

§ 596. Also, if there be tenant in tail, the reversion 
being to the donor and his heirs, if the tenant make a 
feoffment, [&e.,]and die without issue, he in the rever- 
sion cannot enter, but is put to his action of formedon 
in le reverter}* 

§ 597. In the same manner is it, where tenant in. 
tail is seised of certain land whereof the remainder is to 
another in tail, or to another in fee. If the tenant in 
tail alien in fee, or in fee tail,^ and after die without 
issue, they in the remainder may not enter, but are put 
to their writ of formedon in the remainder, &c., and for 
that that by force of such feoffments and alienations in 
the cases aforesaid, and the^ like cases, they that have 
title and right after the death of such a feoffor or alien- 
or may not enter, but are put to their actions, ui supra; 
and for this cause such feoffments and alienations are 
called discontinuances. 

§ 598. Also, if tenant in tail be disseised, and he 
release by his deed to the disseisor and to his heirs all 
the right which he hath in the same tenements, this is 
no discontinuances, for that nothing of the right passeth 
to the disseisor, but for term of the life of tenant in tail 
which made the release, &c. 

M &c. }► a -{ &c. )► 
» i other 1^ 



Chap. XL] DISCONTINUANCE. 271 

§ 599. But by the feoffment of tenant in tail, fee 
simple passeth by the same feoffment by force of the 
livery of seisin, &c. 

§ 600. But by force of a release nothing shall pass 
but the right which he may lawfully and rightfully re- 
lease, without hurt or damage to other persons who shall 
have right therein after his decease, &c. So there is 
great diversity between a feoffment of tenant in tail, 
and a release made by tenant in tail. 

§ 601. But it is said, that if the tenant in tail in this 
case release to his disseisor, and bind him and his heirs 
to warranty,^ and dieth, and this warranty descend to'^ 
his issue,^ this is a discontinuance, by reason of the 
warranty.* 

§ 602. But if a man hath issue a son by his wife, 
and his wife dieth, and after he taketh another wife, and 
tenements are given to him and to his second wife, and 
to the heirs of their two bodies engendered, and they 
have issue another son, and the second wife dieth, and 
after the tenant in tail is disseised, and he release to the 

M Ac. ^ 

^ I.e., upon. 

Ritso's Science of the Law, 118, says : ** I would read, * and 
this warranty descend upon his issue,' and not ' descend to his 
issue.' The distinction is between a warranty which descends as 
a henpfidum to the heir, and a warranty which descends as an 
onus upon the heir. We have also to make the same correction 
in the sections 602, 603, 718, 736, and 739.'' Hargrave and But- 
ler's notes, citing Ritso. say : '* Should it not be ' upon his issue,' 
instead of * to his issue ' ? " 

« \ then } 



372 DISCONTINUANCE. [Book IH. 

•disseisor, all his right, &c., and bind him and his heirs 
to warranty, &c., and die, this is no discontinuance to 
the issue in tail by the second wife, but he may well 
enter,^ for that the warranty descendeth to* his elder 
brother, which his father had by the first wife, [&c.] 

§ 603. In the same manner is it, where lands are 
descendable to the youngest son after the custom of 
Borough-English, which are entailed, &c., and the ten- 
ant in tail hath two sons, and is disseised, and he re- 
leaseth to his disseisor all his right with warranty, &c., 
and dieth, the younger son may enter upon the disseisor, 
notwithstanding the warranty for that the warranty 
descendeth to^ the elder son: for always the warranty 
shall descend to^ him who is heir by the common law. 

§ 604. Also, if an abbot be disseised, and he re- 
leaseth to the disseisor with warranty, this is no discon- 
tinuance to his successor, because nothing passeth by 
this release but the right which he hath during the time 
that he is abbot, and the warranty is expired by his 
privation, or by his death. 

§ 605. Also, if a man seised in the right of his wife 
be disseised, and he releaseth, &c., with warranty, this 
is no discontinuance to the wife, if she surviveth her 
husband, but that she may enter, &c. Causa pateL 

§ 606. Also, if tenant in tail of certain land letteth 

t ^ &c. ^ 

» See section. 601, n. 2. 

•Ibid, 

^Ibid. 



Chap. XL] DISCONriNUANCE. 273 

the same land to another for term of years, by force 
whereof the lessee hath thereof possession, in whose pos- 
session the tenant in tail by his deed releaseth all the 
right that he hath in the same land^ to have and to hold 
to the lessee and to his heirs for ever : this is no discon- 
tinuance : but after the decease of the tenant in tail, his 
issue may well enter, because by such release nothing 
passeth but for term of the life of the tenant in tail. 

§ 607. In the same manner it is, if the tenant in tail 
confirm the estate of the lessee for years, to have and to 
hold to him and to his heirs, this is no discontinuance, 
for that nothing passeth by such confirmation but the 
estate which the tenant in tail hath for term of his life, 

&C. 

§ 608. Also, if tenant in tail after such lease grant 
the reversion in fee by his deed to another, and willeth 
that after the term ended, that the same land shall 
remain to the grantee and his heirs for ever, and the 
tenant for years attorn, this is no discontinuance. For 
such things which pass in such cases of tenant in tail 
only by way of grant, or by confirmation, or by such 
release, nothing can pass to make an estate to him to 
whom such grant, or confirmation, or release is made, 
but that which the tenant in tail may rightfully make, 
and this is but for term of his life, &c. 

§ 609. For if I let land to a man for term of his 
life, &c., and the tenant for life letteth the same land 
to another for term of years, &c., and after my tenant 
for life grant the reversion to another in fee, and the 



274 DISCONTINUANCE. [Book in. 

tenant for years attorn, in this case the grantee hath in 
the freehold but an estate for term of the life of his 
grantor, &c., and I which am in the reversion of the fejB 
simple may not enter by force of this grant of the rever- 
sion made by my tenant for life, for that by such grant 
my reversion is not discontinued, but always remains 
unto me, as it was before, notwithstanding such grant of 
the reversion made to the grantee, to him and to his 
heirs, &c., because nothing passed by force of such 
grant, but the estate which the grantor hath, &c. 

§ 610. In the same manner is it, if tenant for term 
of life by his deed confirm the estate of his lessee for 
years, to have and to hold to him and his heirs, or re- 
lease to his lessee and his heirs, yet the lessee for years 
hath an estate but for term of the life of the tenant for 
life, &c. 

§ 611. But otherwise it is when tenant for life 
maketh a feoffment in fee, for by such a feoffment the 
fee simple passeth. For tenant for years may make a 
feoffment in fee, and by his feoffment the fee simple 
shall pass, and yet he had at the time of the feoffment 
made but an estate for term of years, &c. 

§ 612. Also, if tenant in tail grant his land to an- 
other term of the life of the said tenant in tail, and de- 
liver to him seisin, &c., and after by his deed he re- 
leaseth to the tenant and to his heirs all the right which 
he hath in the same land ; in this case the estate of the 
tenant of the land is not enlarged by force of such re- 
lease, for that when the tenant had the estate in the land 



Chap. XI.] DIS(X)NAINUANCE. 275 

for term of the life of the tenant in tail, he had then all 
the right which tenant in tail could rightfully grant or 
release,^ so as by this release no right passeth, in as 
much as his right was gone before. 

§ 613. Also, if tenant in tail by his deed grant to an- 
other all his estate which he hath in the tenements to 
him entailed, to have and to hold all his estate to the 
other, and to his heirs for ever, and deliver to him 
seisin, accordingly ; in this case the tenant to whom the 
alienation was made hath no other estate but for term 
of the life of tenant in tail. And so it may be well 
proved that tenant in tail cannot grant nor alien, nor 
make any rightful estate of freehold to another person, 
but for term of his own life only, &c. 

§ 614. For if I give land to a man in tail, saving 
the reversion to myself, and after the tenant in tail en- 
feoffeth another in fee, the feoffee hath no rightful 
estate in the tenements for two causes. One is, for that 
by such feoffment my reversion is discontinued, the 
which is a wrong and not a rightful act. Another cause 
is, if the tenant in tail dieth, and his issue bring a writ 
of formedon against the feoffee, the writ and also the 
declaration shall say, &c., that the feoffee by wrong him 
deforces, &c. Ergo if he deforceth him by wrong, he 
hath no right estate. 

§ 615. Also, if land be let to a man for term of his 
life, the remainder to another in tail, if he in the re- 
mainder will grant his remainder to another in fee by 



276 DISCONTINUANCE. [Book IH. 

his deed, and the tenant for life attorn, this is no discon- 
tinuance of the remainder.^ 

§ 616. Also, if a man hath a rent-service or rent- 
charge in tail, and he grant the said rent to another in 
fee, and the tenant attorn,^ this is no discontinuance, 
&c. 

§ 617. Also, if a man be tenant in tail of an advow- 
son in gross, or of a common in gross, if he by his deed 
will grant the advowson or common to another in fee, 
this is no discontinuance ; for in such cases the grantees 
lave no estate but for term of the life of tenant in tail 
Ihat made the grant, &c. 

§ 618. And note, that of such things as pass by way 
-of grant, by deed made in the country,^ and without liv- 
ery, there such grant maketh no discontinuance, as in 
the cases aforesaid, and in other like cases, &c. [And] 
albeit such things be granted in fee, by fine levied in the 
king's court, &c., yet this maketh not a discontinuance, 
&c. 

§ 619. Note, if I give land to another in tail, and he 
letteth the same land to another for term [of years, and 
after the lessor granteth the reversion to another in fee, 
and the tenant for years attorn to the grantee, and the 
term expireth during the life of the tenant in tail, by 
which the grantee enter, and after the tenant in tail hath 
issue and die ; in this case this is no discontinuance, not- 



Chap. XI.J DISCOETINUANCE. 277 

withstanding the grant be executed in the life of the ten- 
ant in tail, for that at the time of the lease made for 
years, no new fee simple was reserved in the lessor, but 
the reversion remained to him in tail, as it was before 
the lease made.]^ 

§ 620. [But if the tenant in tail make a lease for 
term] of the life of the lessee, &c., in this case the ten- 
ant in tail hath made a new reversion of the fee simple 
in him;^ because when he made the lease for life, &c., 
he discontinued [the tail, &c., by force of the same lease, 
and also he discontinued] my reversion, &c. And it be- 
hoveth that the reversion of the fee simple be in some 
person in such case : and it cannot be in me which am 
the donor, in as much as my reversion is discontinued ; 
ergo the reversion of the fee ought to be in the tenant in 
tail, who discontinued my reversion: by lease, &c. And 
if in this case the tenant in tail grant by his deed this 
reversion in fee to another, and the tenant for life at- 
torn, &c., and after the tenant for life dieth, living the 
tenant in tail, and the grantee of the reversion enter, 
&c., in the life of the tenant in tail, then this is a discon- 
tinuance in fee; and if after the tenant in tail dieth, 

1 Coke says: *'This is added to Littleton, and not in the 
original." 

Coke rejects the whole section ; but in the earliers texts the 
introductory words of this section appear as the introductory 
words of the section succeeding. 

' Instead of *' hath made a new reversion of the fee simple on 
hira/' the best French texts authorize *' hath thereof made a 
new reversion in fee simple." 



278 DISCONTINUANCE. [Book III. 

his issue may not enter, but is put to his writ of form- 
edon. And the cause is, for that he which hath the 
grant of such reversion in fee simple, hath the seisin 
and execution of the same lands or tenements, to have 
to him and to his heirs in his demesne as of fee, in the 
life of the tenant in tail. [And this is by force of the 
grant of the said tenant in tail.] 

§ 621. [In the same manner shall it be, if in the case 
aforesaid the tenant for term of life after the attorn- 
ment to the grantee had aliened in fee, and the grantee 
had entered by forfeiture of his estate, and after the 
tenant in tail had died, this is a discontinuance, causa 
qua supra.Y 

§ 622. But in this case, if tenant in tail that grants 
the reversion, &c., dieth, living the tenant for life, and 
after the tenant for life dieth, and after he to whom the 
reversion was granted enter, &c., then this is no discon- 
tinuance, but that the issue of the tenant in tail may 
well enter upon the grantee of the reversion; because 
the reversion which the grantee had, &c., was not exc' 
cuted, &c., in the life of the tenant in tail, &c. And so 
there is a great diversity when tenant in tail maketh a 
lease for years, and whore he maketh a lease for life; 
for in the one case he hath a reversion in tail, and in the 
other case lie hath a reversion in fee. 

§ 623. For if land be given to a man and to his heirs 
male of his body engendered, who hath issue two sons, 
and the eldest son hath issue a daughter and dieth, [and 
1 Coke says : •* This is added in this place." 



Chap. XI.] DISCONTINUANCE. 279 

the tenant in tail maketh a lease for years and die J now 
the reversion descendeth to the younger son, for that the 
reversion was but in the tail, and the youngest son is 
heir male, &c. But if the tenant had made a lease for 
life, &c., and after died, now the reversion descendeth 
to the daughter of the elder brother, for that the rever- 
sion is in the fee simple, and the daughter is heir gen- 
eral, &e. 

§ 624. Also, if a man be seised in tail of lands de- 
visable by testament, &c., and he deviseth this to another 
in fee, and dieth, and the other enter, &c., this is no dis- 
continuance, for that no discontinuance was made in the 
life of the tenant in tail, &c. 

§ 625. Also, if land be given in tail, saving the re- 
version to the donor, and after the tenant in tail by his 
deed enfeoff the donor, to have and to hold to him and 
to his heirs for ever, and deliver to him seisin accord- 
ingly, &c., this is no discontinuance, because none can 
discontinue the estate tail, unless he discontinueth the 
reversion of him who hath the reversion, &c., or remain- 
der, if any hath the remainder, &c. And inasmuch as 
by such feoffment made to the donor (the reversion then 
being in him) his reversion was not discontinued nor 
altered, &c., this feoffment is no discontinuance, &c. 

§ 626. In the same manner is it, where lands are 
given to a man in tail, the remainder to another in fee, 
and the tenant in tail enfeoff him that is in the re- 
mainder, to have and to hold to him and to his heirs; 
this is no discontinuance, causa qua supra. 



280 DISCONTINUANCE. [Book IU^ 

§ 627. Also^ if an abbot hath a reversion, or a rent 
service, or a rent charge, and he will grant this rever- 
sion, or rent service, or rent charge,* to another in fee, 
and the tenant attorn, &c., this is no discontinuance. 

§ 628. In the same manner where an abbot is seised 
of an advowson, or of such things which pass by way of 
grant without livery of seisin, &c. 

§ 629. Also, if tenant in tail letteth his land to an- 
other for life, and after he granteth in fee the reversion 
to another, and the tenant attorn : and after the tenant 
for life alien in fee, and the grantee of the reversion 
enter, &c., in the life of the tenant in tail, and after the 
tenant in tail dieth, his issue shall not enter, but is put 
to his writ of formedon, because the reversion in fee 
simple which the grantee^ had by the grant of the ten- 
ant in tail, was executed in the life of the same tenant 
in tail, and therefore it is a discontinuance in fee, &c. 

§ 630. And note, that some make discontinuances 
for term of life. As if tenant in tail make a lease for 
life, saving the reversion to him as long as the reversion 
is to the tenant in tail, or to his heirs ; this is no discon- 
tinuance, but during the life of the tenant for life, &c. 
And if such tenant in tail giveth the lands to another in 

1 Instead of " this reversion, or rent service, or rent charge," 
the best French texts authorize ** one of these.'' 

* Instead of ** grantee," the translation in Co. Lit. has 
** grantor." The error is pointed out in Ritso*s Science of the 
Law, 118 ; and Hargrave and Butler's notes, citing Ritso, say 
that ** ' grantor * seems printed by mistake instead of ' grantee.' '* 



Chap. XI.J DISCONTINUANCE. 281 

tail, saving the reversion, then this is a discontinuance 
during the second tail, &c. 

§ 631. But where the tenant in tail maketh a lease 
for years, or for life, the remainder to another in fee, 
and delivereth livery of seisin accordingly, this is a dis- 
continuance in fee, for that the fee simple passeth by 
force of the livery of seisin, &c. 

§ 632. And it is to be understood, that some such dis- 
continuances are made upon condition, &c., and for that 
the conditions be broken, &c., or for other causes, ac- 
cording to the course of law, such estates are defeated, 
then are the discontinuances defeated, and shall not by 
force of them take any man from his entry, &c. [As if 
the husband be seised of certain land in right of his 
wife, and maketh a feoffment in fee upon condition, and 
dieth, if the heir after enter upon the feoffee for the 
condition broken, the entry of the wife was congeable 
upon the heir, for that by the entry of the heir the dis- 
continuance is defeated, as is adjudged.]^ 

§ 633. Also, if a woman inheritrix hath a husband 
who is within age, and he being within age maketh a 
feoffment of the tenements of his wife in fee, and dieth, 
it hath been a question if the wife may enter or not, &c. 
And it seemeth to some, that the entry of the wife after 
the death of her husband, is congeable in this case. For 
when her husband made such feoffment, &c., he might 
well enter, notwithstanding such feoffment, &c., during 
the coverture ; and he could not enter in his own right, 

1 Iq the earliest texts, section. 687 is given at this place. 



282 DISCONTINUANCE. [Book III. 

but in the right of his wife : ergo, such right as he had 
to enter in the right of his wife, &c., this right of entry 
remaineth to the wife after his decease. 

§ 634. And it hath been said, that if two joint- 
tenants, being within age, make a feoffment in fee, and 
one of the infants die, and the other surviveth; in as 
much as both the infants might enter jointly in their 
lives, this right accrueth all to him which surviveth, and 
therefore he that surviveth may enter into the whole, 
&c. And also the heir of the husband which made the 
feoffment within age cannot enter, &c., because no right 
descendeth to such heir in the case aforesaid, for that 
the husband had never any thing but in right of his 
wife, &c. 

§ 635. And also when an infant make a feoffment 
being within age, this shall neither grieve nor hurt him, 
but that he may well enter, &c., for it should be against 
reason that such feoffment made by him that was not 
able to make such a feoffment shall grieve or hurt an- 
other, to take them from their entry, &c. And for these 
reasons it seemeth to some, that after the death of such 
husband so being within age at the time of the feoff- 
ment, &c., that his wife may well enter, &c. 

§ 636. Also, if a woman inheritrix taketh husband, 
and they have issue a son, and the husband dieth, and 
she takes another husband, and the second husband let- 
teth the land which he hath in right of his wife to an- 
other for term of his life, and after the wife dieth, and 
after the tenant for life surrendereth his estate to the 



Chap. XI.] DISCONTINUANCE. 283 

second husband, &c., qucBre, if the son of the wife may 
enter in this case upon the second husband during the 
life of the tenant for life, [&c.] But it is clear law, 
that after the death of the tenant for life, the son of the 
wife may enter ; because the discontinuance, which was 
only for term of life, is determined, &c., by the death of 
the same tenant for life.^ 

§ 637. [ITote, that an estate tail cannot be discon- 
tinued, but there where he that makes the discontinu- 
ance was once seised by force of the tail, unless it be by 
reason of a warranty, &c. As] if there be grandfather, 
father, and son, [and the grandfather is tenant in tail, 
and is disseised by the father who is his son,] and the 
father maketh a feofiFment of this without warranty and 
die, and afterwards the grandfather dies, the son may 
well enter upon the feoffee, because this was no discon- 
tinuance, inasmuch as the father was not seised by force 
of the entail at the time of the feoffment, &c., but was 
seised in fee by the disseisin of the grandf ather.^ 

§ 638. Also, if tenant in tnil make a lease to another 
for term of life, and the tenant in tail hath issue and 
dieth, and the reversion descendeth to his issue, and 
after^ the issue granteth the reversion, to him descended, 
to another in fee, and the tenant for life attorn and die, 
and the grantee of the reversion enter, &c.,^ and is seised 

3 111 the earliest texts this section appears at the end of section 
632. 

8 I.e. afterwards. 

4 Instead of '* attorn and die, and the grantee of the reversion 



282 DISCONTINUANCE. [Book IH. 

but in the right of his wife : ergo, such right as he had 
to enter in the right of his wife, &c., this right of entry 
remaineth to the wife after his decease. 

§ 634. And it hath been said, that if two joint- 
tenants, being within age, make a feoffment in fee, and 
one of the infants die, and the other surviveth; in as 
much as both the infants might enter jointly in their 
lives, this right accrueth all to him which surviveth, and 
therefore he that surviveth may enter into the whole, 
&c. And also the heir of the husband which made the 
feoffment within age cannot enter, &c., because no right 
descendeth to such heir in the case aforesaid, for that 
the husband had never any thing but in right of his 
wife, &c. 

§ 635. And also when an infant make a feoffment 
being within age, this shall neither grieve nor hurt him, 
but that he may well enter, &c., for it should be against 
reason that such feoffment made by him that was not 
able to make such a feoffment shall grieve or hurt an- 
other, to take them from their entry, &c. And for these 
reasons it seemeth to some, that after the death of such 
husband so being within age at the time of the feoff- 
ment, &c., that his wife may well enter, &c. 

§ 636. Also, if a woman inheritrix taketh husband, 
and they have issue a son, and the husband dieth, and 
she takes another husband, and the second husband let- 
teth the land which he hath in right of his wife to an- •! 

other for term of his life, and after the wife dieth, and | 

after the tenant for life surrendereth his estate to the ! 



Chap. XI.] DISCONTINUANCE. 283 

second husband, &c., quosre, if the son of the wife may 
enter in this case upon the second husband during the 
life of the tenant for life, [&c.] But it is clear law, 
that after the death of the tenant for life, the son of the 
wife may enter; because the discontinuance, which was 
only for term of life, is determined, &c., by the death of 
the same tenant for life.^ 

§ 637. [Xote, that an estate tail cannot be discon- 
tinued, but there where he that makes the discontinu- 
ance was once seised by force of the tail, unless it be by 
reason of a warranty, &c. As] if there be grandfather, 
father, and son, [and the grandfather is tenant in tail, 
and is disseised by the father who is his son,] and the 
father maketh a feoffment of this without warranty and 
die, and afterwards the grandfather dies, the son may 
well enter upon the feoffee, because this was no discon- 
tinuance, inasmuch as the father was not seised by force 
of the entail at the time of the feoffment, &c., but was 
seised in fee by the disseisin of the grandfather.^ 

§ 638. Also, if tenant in tail make a lease to another 
for term of life, and the tenant in tail hath issue and 
dieth, and the reversion descendeth to his issue, and 
after^ the issue granteth the reversion, to him descended, 
to another in fee, and the tenant for life attorn and die, 
and the grantee of the reversion enter, &c.,^ and is seised 

M &c. ^ 

3 III the earliest texts this section appears at the end of section 
«32. 

* Le. afterwards. 
^ Instead of ** attorn and die, and the grantee of the reversion 



284 DISCONTINUANCE. [Book IIL 

in fee in the life of the issue, and after the issue in tail 
hath issue a son and dieth, it seems that this is no dis- 
continuance to the son, but that the son may enter, &c., 
for that his father, to whom the reversion of the fee sim- 
ple descended, had never any thing in the land by force 
of the entail, &c. 

§ 639. For if a man seised in the right of his wife, 
letteth the same land to another for term of life, now is 
the reversion of the fee simple to the husband, &c. And 
if the husband dieth, living his wife and the tenant for 
life, [and] the reversion descend to the heir of the hus- 
band, if the heir of the husband grant the reversion to 
another in fee, and the tenant attorn, &c., and after- 
wards the tenant for life dieth, and the grantee of the 
reversion in this case enter: [in this case] this is no dis- 
continuance to the wife, but she may well enter upon 
the grantee, &c., because the grantor had nothing at the 
time of the grant, in the right of the^ wife when he 
made the grant of the reversion. 

§ 640. And so it seemeth, that men which are inher- 
itable by force of an entail, and never were seised by 
force of the same entail, that such feoffments or grants 

enter, &c.," the best French texts authorize "attom, &c., and 
afterwards the tenant for term of life die, and he in the rever- 
sion enter, &c." 

1 Instead of "the" the translation in Co. Lit. has "his." 
Ritso's Science of the Law, 113, points out the proper reading, 
saying that *' it is not the husband who is here spoken of, but the 
heir of the husband." Hargrave and Butler's notes approve the 
amendment, saying that " here Miis* seems to be printed by 
mistake, instead of ' the.' " 



Chap. XI.] DISCONTINUANCE. 285 

by them made without clause of warranty, is no discon- 
tinuance to their issues after their decease^ but that 
their issue may well enter, &c., albeit they which made 
auch grants in their lives were forebarred to enter by 
their own act, &c. 

§ 641. And if tenant in tail hath issue two sons, and 
the eldest disseiseth his father, and thereof maketh a 
feoffment in fee without clause of warranty, and die 
without issue, and after the father die, the youngest son 
may well enter upon the feoffee ; for that the feoffment 
of his elder brother cannot be a discontinuance, because 
he was never seised by force of the same tail. For it 
seemeth to be against reason, that by matter in fact, &c., 
without clause of warranty, a man should discontinue a 
tail,^ &c., that was never seised by force of the same 
tail.2 

§ 642. Note,^ if there be lord and tenant, and the 
tenant giveth lands to another in [tail, the remainder to 
another in] fee* and after* the tenant in tail makes a 
lease to a man for term of life, &c., saving the reversion, 
&o., and after granteth the reversion to another in fee, 

* Instead of ** tail,*' the translation in Co. Lit. has **deed." 
Coke, however, says : ** This is mistaken, and should be, * a man 
should discontinue a tail * ; and so is the original." The same 
amendment is suggested in Ritso*s Science of the Law, 113, and 
approved in Hargrave and Butler's notes ; and it is required by 
the earliest texts. 

M &c. ^ 

' Instead of ** Note," the best French texts authorize ** Also.'* 

* ^ tail J^ 

* I.e. afterwards. 



286 DISCONTINUANCE. [Book IIT. 

and the tenant for life attorn, &e., and after the grantee 
of the reversion die withoxit heir, now the same rever- 
sion Cometh to the lord by way of escheat. If in this 
case the tenant for life dieth, and the lord by force of 
his escheat enter in the life of tenant in tail, and after 
the tenant in tail dieth, it seemeth in this case that this 
is no discontinuance to the issue in tail, nor to him in 
the remainder, but that he may well enter, because the 
lord is in by way of escheat, and not by the tenant in 
tail. But otherwise it should be if the reversion had 
been executed in the grantee, in the life of tenant in 
tail, for then had the granteie been in the tenements by 
the tenant in tail, &c. 

§ 643. Also, if a parson of a church, or vicar of a 
church alien certain lands or tenements parcel of his 
glebe, &c., to another in fee, and die or resign, &c., his 
successor may well enter, notwithstanding such aliena- 
tion, as is said in a Nota 2 H. IV,, Termino Mich., 
which beginneth thus: 

§ 644. Nota quod dictum fuit pro lege, in a writ of 
account brought by a master of a college against a chap- 
lain, that if a parson, or vicar, grand certain land which 
is of the right of his church to another and die, or 
changeth, the successor may enter, &c. And I take the 
cause to be, for that the parson, or vicar, that is seised, 
&c., as in right of his church, hath no right of the fee 
simple in the tenements, nor^ the right of the fee simple 

1 Instead of **nor," the translation in Co. Lit. has ** and " ; 
but the earliest texts authorize "or/* and apparently Coke 



Chap. XI.] DISCONTINUANCE. 287 

abideth in another person; and for this cause his sue- 
eessor may well enter, notwithstanding such alienation^ 
&c. 

§ 645. For a bishop may have a writ of right of [the 
tenements of the right of his church, for that the right 
is in his chapter, and the] fee simple abideth in him 
and in his chapter. And a dean may have a writ of 
right, because the right remains in him. [And an abbot 
may have a writ of right, for that the right remains in 
him] and in his covent. And a master of an hospital 
may have a writ of right, because the right remaineth 
in him and in his confreres, &c. And so of other like^ 
cases.* But a parson or vicar cannot have a writ of 
right, &c. 

§ 646. But the highest writ that they can have is the 
writ of juris utrum, which is a great proof that the right 
of fee is not in them nor in any others, &c. But the right 
of the fee simple is in abeyance, that is to say, that it is 
only in the remembrance, intendment, and consideration 
of the law, &c., for it seemeth to me, that such a thing 
and such a right which is said in divers books to be in 
abeyance, is as much as to say in Latin, (soil.) Talis res, 
vel tale rectum, quce vel quod non est in homine, adtunc 
superstiie, sed tantummodo est et consistit in considera- 

understood that **or" is the proper reading, for he says : ** The 
fee simple is in abeyance, as Littleton saith.'* 

1 Instead of '* other like cases," the best French texts authorize 
** others in like cases." 



388 DISCONTINUANCE. [Book IIL 

tione et intelligentid legis, et quod alii dixerunt, talem 
rem and tale rectum fore in nuhihua. [But I suppose, 
that they mean by these words (in nubibtis, &c,,)^ as I 
have said before.^ 

§ 647. Also, if a person of a church dieth, now the 
freehold of the glebe of the parsonage is in none during 
the time that the parsonage is void, but in abeyance, 
viz. in consideration and in the understanding of the 
law, until another be made parson of the same church ; 
and immediately when another is made parson, the free- 
hold in deed is in him as successor.^ 

§ 648. Also, some peradventure will argue and say, 
that inasmuch as a parson, with the assent of the patron 
and ordinary, may grant a rent charge out of the glebe 
of the parsonage in fee, and so charge the glebe of the 
parsonage perpetually, ergo they have a fee simple, or 
two or one of them have a fee simple at the least.^ To 
this may be answered, that it is a principle in law, that 
of every land there is a fee simple, &c., in some body, or 
otherwise the fee simple is in abeyance.* And there is 
another principle, that every land of fee simple may be 
charged with a rent-charge in fee by one way or other. 
And when such rent is granted by the deed of the par- 
son, and the patron, and ordinary, &c., in fee, none shall 
have prejudice or loss by force of such grant, but the 

M &c. !- 

» -{ &o. ^ 
M &c. }- 



Chap. XI J DISCONTINUANCE. 389 

grantors in their lives and the heirs of the patron, and 
the successors of the ordinary after their decease. And 
after such charge if the parson die, his successor cannot 
come to the said church to be parson of the same by the 
law, but by the presentment of the patron and admission 
and institution of the ordinary.* And for this cause the 
successor ought to hold himself content, and agree to 
that which his patron and the ordinary have lawfully 
done before, &c. But this is no proof that the fee sim- 
ple, &c., is in the patron and the ordinary, or in either of 
them, &c. But the cause that such grant of rent-charge^ 
is good, is for that they who have the interest, &c., in the 
said church, viz., the patron, according to the law tem- 
poral, and the ordinary according to the law spiritual, 
were assenting or parties to such charge, &c. And this 
seemeth to be the true cause why such glebe may be 
charged in perpetuity, [&c.] 

§ 649. Also, if tenant in tail hath issue and is dis- 
seised, and after he releaseth by his deed all his right to 
the disseisor : in this case no right of tail can be in the 
tenant in tail, because he hath released all his right. 
And no right can be in the issue in tail during the life 
of his father. And such right of the inheritance in the 
tail is not altogether expired by force of such release, 
&c. Ergo, it must needs be that such right remain in 
abeyance,^ ut supra, during the life of tenant in tail 

M &c. )► 
M Ac. J. 
M&c. )► 



290 DISCONTINUANCE. [Book III. 

that releaseth, &c., and after his decease such right pres- 
sently is in his issue in deed, &c. 

§ 650. In the same manner it is, where tenant in tail 
grant all his estate to another; in this case the grantee 
hath no estate but for term of life of the tenant in tail, 
and the reversion of the tail is not in the tenant in tail, 
because he hath granted all his estate and his right, &c. 
And if the tenant to whom the grant was made make 
waste, the tenant in tail shall not have a writ of waste, 
for that no reversion is in him. But the reversion and 
inheritance of the tail, during the life of the tenant in 
tail, is in abeyance, that is to say, only in the remem^ 
brance, consideration, and intelligence of the law.^ 

§ 651. Also, if a bishop alien lands which are parcel 
of his bishopric, and die, this is a discontinuance to 
his successor, because he cannot enter, but is put to his 
writ of de ingressu sine assensu capituli. 

§ 652. Also, if a dean alien lands which he hath in 
right of him and his chapter,^ and dieth, his successor 
may enter.^ But if the dean be sole seised as in right 
of his deanry, then his alienation is a discontinuance ta 
his successor, as is said before. 

§ 653. Also, peradventure some will argue and say, 
that if an abbot and his convent be seised in their 

M &c. ^ 

8 Instead of " which he hath in right of him and his chapter, "^ 
the best texts authorize " parcel of his deanery.*' 

"Instead of "may enter," the best French texts authorize 
** cannot enter, but can have a writ De ingressu sine assensu 
episcopi et capituli, &c." 



Chap. XI.] DISCONTINUANCE. 291 

demesne as of fee of certain lands to them and to their 
successors, &c., and the abbot without the assent of his 
convent alien the same lands to another and die, this is a 
discontinuance to his successor, &c. 

§ G54. By the same reason they will say, that where 
a dean and chapter are seised of certain lands to them 
and their successors, if the dean alien the same lands, 
&c., this shall be a discontinuance to his successor, so as 
his successor cannot enter, &c. To this it may be an- 
swered, that there is a great diversity between these two 
cases. 

§ 655. For when an abbot and the convent are seised, 
yet if they be disseised, the abbot shall have an assise in 
his own name, without naming the convent, &c. And 
if any will sue a prcecipe quod reddat, &c,, of the same 
lands when they were in the hands of the abbot and 
convent, it behoveth that such action real be sued against 
the abbot only, without naming the convent,^ because 
they are all dead persons in law but the abbot, who is 
the sovereign, &c. And this is by reason of the sover- 
eignty, for otherwise he should be but as one of the other 
monks of the convent, &c. 

§ 656. But dean and chapter are not dead persons in 
law, &c., for every of them may have an action by him- 
self in divers cases. And of such lands or tenements as 
the dean and chapter have in common, &c., if they be 
disseised, the dean and chapter shall have an assise, and 
not the dean alone, [&c.] And if another will have an 



392 DISCONTINUANCE. [Book UL 

action real for such lands or tenements against the dean, 
•&C., he must sue against the dean and chapter, and not 
against the dean alone, &c., and so there appeareth a 
^eat diversity between the two cases, &c. 

§ 657. Also, if the master of an hospital discontinue 
•certain land of his hospital, his successor cannot enter, 
lut is put to his writ of de ingressu sine assensu con- 
fratrum ei consororum/ &c. And all such writs fully 
appear in the Register, &c. 

§ 658* Also, if land be let to a man for term of his 
life, the remainder to another in tail, saving the rever- 
sion to the lessor, and after he in the remainder dis- 
seiseth the tenant for term of life, and maketh a feofiF- 
ment to another in fee, and after dieth without issue, 
and the tenant for life dieth; it seemeth in this case, 
that he in the reversion may well enter upon the feoffee, 
because he in the remainder which made the feoffment 
was never seised in tail by force of the same remainder, 
&c. 

1 Instead of ** consororum,'* the best French texts give ** soro* 
rumf 



CHAPTER XII. 



REMITTEB. 



§ 659. Remitter is an ancient term in the law, and 
is where a man hath two titles to lands or tenements, 
viz., one a more ancient title, and another a more latter 
title, and if he come to the land by a latter title, yet 
the law will adjudge him in by force of the elder 
title, because the elder title is the more sure and more 
worthy title. And then when a man is adjudged in by 
force of his elder title, this is said a remitter in him, 
for that the law doth admit him to be in the land by 
the elder and surer title. As if tenant in tail discon- 
tinue the tail, and after he disseiseth his discontinunee, 
and so dieth seised, whereby the tenements descend to 
his issue or cousin inheritable by force of the tail, in 
this case, this is to him to whom the tenements descend, 
who hath right by force of the tail, a remitter to the 
tail, because the law shall put and adjudge him to be in 
by force of the tail, which is his elder title: for if he 
should be in by force of the descent, then the discon- 
tinuee might have a writ of entry sur disseisin in the 
per against him, and should recover the tenements and 

293 



294 REMITTER, [Book III. 

his damages, [&c.] But inasmuch as he is in his remit- 
ter by force of the tail, the title and interest of the dis- 
continuee is quite taken away and defeated, &c. 

§ 660. Also, if tenant in tail enfeoff his son in fee, 
or his cousin inheritable by force of the tail, which son 
or cousin at the time of the feoffment is within age, and 
after the tenant in tail dieth, and he to whom the feoff- 
ment was made is his heir by force of the tail ; this is a 
remitter to the heir in tail to whom the feoffment was 
made. For albeit that during the life of the tenant in 
tail who made the feoffment, such heir shall be ad- 
judged in by force of the feoffment, yet after the death 
of tenant in tail, the heir shall be adjudged in by force 
of the tail, and not by force of the feoffment. For 
although such heir* were of full age at the time of the 
death of the tenant in tail wlio made the feoffment, this 
makes no matter, if the heir were within age at the time 
of the feoffment made unto him. And if such heir 
being within age at the time of such feoffment, cometh 
to full age, living the tenant in tail that made the feoff- 
ment, and so being of full age he charges by his deed the 
same land with a common of pasture, or with a rent- 
charge, and after the tenant in tail dieth; now it 
seemeth that the land is discharged of the common, and 
of the rent, for that the heir is in of another estate in the 

1 Ritso's Science of the Law, 113-114, says : ** The words * for 
although such lieir,' &c., would have been more accurately- 
written, *and although such heir,* &c., for this is|ratheran ampli^ 
fication than a conclusion." 



Chap. XII.] REMITTER. 295 

land than he was at the time of the charge made, inas- 
much as he is in his remitter by force of the tail, and so 
the estate which he had at the time of the charge is ut- 
terly defeated, [&c.] 

§ 661. Also a principal cause why such heir in the 
cases aforesaid, and other like cases, shall be said in his 
remitter, is for that there is not any person against 
whom he may sue his writ of formedon: for against 
himself he cannot sue, and he cannot sue against any 
other, for none other is tenant of the freehold ; and for 
this cause the law doth adjudge him in his remitter, soil. 
in such plight as if he had lawfully recovered the same 
land against another, &c. 

§ 662. Also, if land be entailed to a man and to his 
wife, and to the heirs of their two bodies begotten, who 
have issue a daughter, and the wife dieth, and the hus- 
band taketh another wife, and hath issue another daugh- 
ter, and discontinue the tail, and after he disseiseth the 
discontinuee and so die seised, now the land shall 
descend to the two daughters. [And] in this case as to 
the eldest daughter, who is inheritable by force of the 
tail, this is [no^] remitter but of the moiety. And as to 
the other moiety, she is put to sue her action of form- 
edon against her sister. For in this case the two sisters 
are not tenants in parcenary, but they are tenants in 
common, for that they are in by divers titles. For the 
one sister is in her remitter by force of the entail, as to 
that which to her belongeth ; and the other sister is ir>^ 



REMITTER. [Book III. 

as to that which to her belongeth, in fee simple by the 
descent of her father, [&c.] 

§ 663. In the same manner it is if tenant in tail en- 
feoff his heir apparent in tail (the heir being within 
age) and another joint-tenant in fee, and the tenant in 
tail dieth ; now the heir in tail is in his remitter as to 
the one moiety, and as to the other moiety he is put to 
his writ of formedon, [&c.] 

§ 664. Also, if tenant in tail enfeoff his heir appar- 
ent, the heir being of full age at the time of the feoff- 
ment, and after tenant in tail dieth, this is no remitter 
to the heir, because it was his folly that being of full age 
he would take such feoffment, &c. But such folly can- 
not be adjudged in the heir being within age* at the 
time of the feoffment, &c. 

§ 665. Also, if tenant in tail enfeoff a woman in fee 
and dieth, and his issue within age taketh the same 
woman to wife ; this is a remitter to the infant [within 
age,] and the wife then hath nothing, for that the hus- 
band and his wife are but as one person in law. And in 
this case the husband cannot sue a writ of formedon, 
unless he will sue against himself, which should be in- 
convenient; and for this cause the law adjudgeth the 
heir in his remitter, for that no folly can be adjudged 
in him being within age at the time of the espousals, 
&c. And if the heir be in his remitter by force of the 
entail, it followeth by reason that the wife hath nothing, 
4:c. For inasmuch as the husband and wife be as one 



Chap. XII.] REMITTER. 297 

person, the land cannot be parted by moieties ; and for 

this cause the husband is in his remitter of the whole. ' 

But otherwise it is if such heir were of full age at the j 

time of espousals, for then the heir hath nothing but in 

right of his wife, [&c.] 

§ 666. Also if a woman seised of certain land in fee 
taketh husband, who alieneth the same land to another 
in fee,* the alienee letteth the same land to the husband 
and wife for term of their two lives, saving the rever- 
sion to the lessor and to his heirs ; in this case the wife 
is in her remitter, and she is seised in deed in her 
demesne as of fee, as she was before, because the taking 
back of the estate shall be adjudged in law the fact of 
the husband, and Jiot the fact of the wife ; so no folly 
can be adjudged in the wife, which is covert in such 
case: And in this case the lessor hath nothing in the 
reversion, for that the wife is seised in fee, [&c.] 

§ 667. But in this case if the lessor will sue an ac- 
tion of waste against theh usband and his wife, for that 
the husband hath committed waste, the husband cannot 
bar the lessor by shewing this, that the taking back of 
the estate to him and to his wife was a remitter to his 
wife, because the husband is stopped to say that which is 
against his own feoflFment, and taking back of the estate 
for term of life to him and to his wife: And yet the 
lessor hath no reversion, for that the fee simple is in the 
wife. And so a man may see one thing in this case, that 



298 REMITTER. [Book III. 

a man shall be stopped by matter in fact, though there 
be no writing by deed indented or otherwise. 

§ 668. But if in the action of waste the husband 
make default to the grand distress, and the wife pray to 
be received, and is received, she may well shew the 
whole matter, and how she is in her remitter, and she 
shall bar the lessor of his action, [&c.] 

§ 669. For in every case where the wife is received 
for default of her husband, she shall plead and have the 
same advantage in pleading, as she were a woman sole, 
&c. And albeit that the alienee made the lease to the 
husband and wife by deed indented, yet this is a remit- 
ter to the wife. And also albeit the alienee rendereth 
the same land to the husband and his wife by fine for 
tenn of their lives, yet this is a remitter to the wife, be- 
cause a feme covert which takes an estate by fine, shall 
not be examined by the justices, [&c.] 

§ 670. And here note, that when any thing shall pass 
from the wife which is covert of a husband, by force of 
a fine, as if the husband and wife make conusance of 
right to another, &c., or make a grant and render to an- 
other, or release by fine unto another, et sic de similibus, 
where the right of the wife shall pass from the Avife by 
force of the same fine ; in all such cases the wife shall 
be examined before the fine be taken, because that such 
fines shall conclude such femes coverts for ever, [&c.] 
But where nothing is moved in the fine but only that the 
husband and wife do take an estate bv force of the said 



Chap. XII.] REMITTER. 299 

fine, this shall not conclude the wife, for that in such 
case she shall not be at all Examined, [&c.] 

§ 671. Also if tenant in tail discontinue the tail, and 
hath issue a daughter, and dieth, and the daughter being 
of full age taketh husband, and the discontinuee make 
a release of this to the husband and wife for terra of 
their lives, this is a remitter to the wife, and the wife is 
in by force of the tail, causa qua supra, &c. 

§ 672. Also if land be given to the husband and to 
his wife, to have and to hold to them and to the heirs 
of their two bodies begotten, and after^ the husband 
alien the land in fee, and take back an estate to him and 
to his wife for term of their two lives ; in this case this 
is a remitter in deed to the husband and to his wife, 
mauger the husband. For it cannot be a remitter in 
this case to the wife, unless it be a remitter to the hus- 
band, because the husband and wife are all one same 
person in law,^ though the husband be stopped to claim 
it. And therefore this is a remitter against his own 
alienation and reprisal, as is said before. 

§ 673. x\lso, if land be given to a woman in tail, the 
remainder to another in tail, the remainder to the third 
in tail, the remainder to the fourth in fee, and the 
woman taketh husband, and the husband discontinue the 
land in fee; by this discontinuance all the remainders 

^ I.e, afterwards. 

* According to the best French texts, the remainder of the 
section should be translated'- ** though the husband be estopped to 
claim this to be a remitter in him against his alienation and his 
own reprisal, as is said before." 



302 REMITTER. [Book III* 

Quaere in this case if the husband when he comes back 
will disagree to the lease and livery of seisin made to 
his wife in his absence, if this shall oust his wife of her 
remitter [or not, &c.] 

§ 678. Also, if the husband discontinue the lands of 
his wife, and the discontinuee is disseised, and after the 
disseisor letteth the same lands to the husband and wife 
for term of life, this is a remitter to the wife. But if 
the husband and his wife were of covin and consent that 
the disseisin should be made, then it is no remitter to 
his wife, because she is a disseisoress. But if the hus- 
band were of covin and consent to the disseisin, and not 
the wife, then such lease made to the wife is a remitter, 
for that no default was in the wife. 

§ 679. Also, if such discontinuee make an estate of 
freehold to the husband and wife by deed indented upon 
condition, sell, reserving to the discontinuee a certain 
rent, and for default of payment a re-entry, and for that 
the rent is behind the discontinuee enter; then for this 
entry the wife shall have an assise of novel dissemn 
after the death of her husband, against the discontinuee, 
because the condition was altogether taken away, inas~ 
much as the wife was in her remitter; yet the husband 
with his wife cannot have an assise, because the husband 
is estopped, &c. 

§ 680. Also, if the husband discontinue the tene- 
ments of his wife, and take back an estate to him for 
life, the remainder after his decease to his wife for term 
of her life ; in this case this is no remitter to the wife 



Chap. XII.] REMITTER. 30$ 

during the life of the husband, for that during the life 
of the husband, the wife hath nothing in the freehold. 
But if in this case .the wife surviveth the husband, this 
is a remitter to the wife, because a freehold in law is 
cast upon her against her will. And inasmuch as she 
cannot have an action against any other person, and 
against herself she cannot have any action, therefore she 
is in her remitter. For in this case, although the wife 
doth not enter into the tenements, yet a stranger which 
hath cause to have an action, may sue his action against 
the wife for the same tenements, because she is tenant 
in law, albeit that she be not tenant in deed. 

§ 681. For tenant of freehold in deed is he who if he 
be disseised of the freehold may have an assise: but 
tenant [of freehold] in law before his entry [in deed,] 
shall not have an assise. And if a man [be] seised^ of 
certain land, [and] hath issue a son who taketh wife, 
and the father dieth seised, and after the son dies before 
any entry made by him into the land, the wife of the son 
shall be endowed in the land, and yet he had no freehold 
in deed, but he had a fee and freehold in law. And so 
note, that a prcecipe quod reddat may as well be main- 
tained against him that hath the freehold in law, aa 
against him that hath the freehold in deed. 

§ 682. Also, if tenant in tail hath issue two sons of 

full age, and he letteth the land tailed to the eldest son 

for term of his life, the remainder to the younger son 

for terra of his life, and after the tenant in tail dieth ^ 

1 ^ in fee }- 



304 REMITTER. [Book m. 

in this case the eldest son is not in his remitter, because 
he took an estate of his father. But if the eldest die 
without issue of his body, then this is a remitter to the 
younger brother, because he is heir in tail, and a free- 
hold in law is fallen to,^ and cast upon him by force of 
the remainder, and there is none against whom he may 
sue his action.^ 

§ 683. In the same manner it is where a man is dis- 
seised, and the disseisor dieth seised, and the tenements 
descend to his heir, and the heir of the disseisor make a 
lease to a man of the same tenements for term of® life, 
the remainder to the disseisee for term of life, or in tail, 
or in fee,^ the tenant for life dieth, now this is a remit- 
ter to the disseisee, &c., cav^a qua supra, [(fee] 

§ 684. Note,* if tenant in tail enfeoff his son and 
another by his deed of the land entailed, in fee, and 
livery of seisin is made to the other according to the 
■deed, and the son not knowing of this agreeth not to the 
the feoffment, and after he which took the livery of 
seisin dieth, and the son doth not occupy the land, nor 
taketh any profit of the land during the life of the 

1 Instead of " fallen to," the translation in Co. Lit. has " es- 
<5heated" ; but Ritso's Science of the Law, 114, points out that 
the proper reading is ** eschewed," or ** fallen to." The earliest 
texts support the amendment : and Hargp*ave and Butler's 
notes, citing Ritso, say that ** here the word * escheated' is used 
in a general sense, and signifies ' fallen to.' " 

M &o. ^ 

» ^ his [^ 

♦ { and y 

* Instead of " Note," the best French texts authorize *'Also." 



Ohap. XII.J remitter. 305 

father, and after the father dieth, now this is a remitter 
to the son, because .the freehold is cast upon him by the 
survivor; and no default was in him, because he did 
never agree, &c., in the life of his father, and he hath 
none against whom he may sue a writ of formedon, &c. 
§ 685. For if a man be disseised of certain land, and 
the disseisor make a deed of feoffment whereby ho 
enfeoffeth B. C. and D. and livery of seisin is made to 
B. and C. but D. was not at the livery of seisin, nor ever 
jigreed to the feoffment, nor ever would take the profits, 
Ac. and after B. and C. die, and D. survive them, 
and the disseisee bringeth his writ upon disseisin in 
the per against D. he* shall shew all the matter,^ how- 
he never agreed to the feoffment, and he shall dis-' 
charge himself of damages, so as the demandant shall 
recover no damages against him, although he be tenant 
of the freehold of the land. And yet the statute of 
Gloucester, [cap. 1,] will that the disseisee shall recover 
damages in a writ of entry founded upon a^ disseisin 
against him which is found tenant. And this is a 
proof in the other case that for as much as the issue in 
tail came to the freehold, and^ not by his act, nor by his 
agreement, but*^ after the death of his father, therefore 
this is a remitter to him, inasmuch as he cannot sue an 
action of formedon against any other person, &c. 

1 Instead of **he," the best Fi-ench texts authorize "this 
same D." 
« ^ and 1^ « -{ novel )■ * \ this )■ 
* Instead of **>ut," the best French texts authorize " that." 



306 REMITTER. [Book in. 

§ 686. Also if an abbot alien the land of his house 
to another in fee, and the alienee by his deed charge the 
land with a rent-charge in fee, and after the alienee 
enfeoff the abbot with license, to have and to hold to 
the abbot and to his successors for ever, and after the 
abbot die, and another is chosen and made abbot: in 
this case the abbot that is the successor, and his convent,, 
are in their remitter, and shall hold the land discharged,, 
because the same abbot cannot have an action, nor a writ 
of entre sine assensu capituli, of the same land against 
any other person. 

§ 687. In the same manner it is where a bishop, or 
a dean, or other such persons alien, &c. without assent, 
&c. and the alienee charge the land, &c. and after the 
bishop takes back an estate of the same land by license^ 
to him and his successors, and after the bishop dieth; 
his successor is in his remitter as in right of his church, 
and shall defeat the charge, &c., causa qua supra. 

§ 688. Also if a man sue a false action against ten- 
ant in tail, as if one will sue against him a writ of en- 
try in the post, supposing by his writ that the tenant 
in tail had not his entry but by A. of B. who disseised 
the grandfather of the demandant, and this is false, and 
he recovereth against the tenant in tail by default, and 
sueth execution, and after the tenant in tail dieth, his 
issue may have a writ of formedon against him which 
recovereth ; and if he will plead the recovery against the 
tenant in tail, the issue may say, that the said A. of B. 



Chap. XII.] REMITTER. 3o7 

did not disseise the grandfather of him which recovered, 
in manner as his writ suppose, and so he shall fal- 
sify his recovery. And admit this were true that the 
said A. of B. did disseise the grandfather of the de- 
mandant which recovered, and that after the disseisin, 
the demandant, or his father, or his grandfather, by a 
deed had released to the tenant in tail all the right 
which he had in the land, &c,, and notwithstanding this 
he sueth a writ of entry in the post against the tenant 
in tail, in manner as is aforesaid, and the tenant in tail 
plead to him, that the said A. of £. did not disseise his 
grandfather, in such manner as his writ suppose; and 
upon this they are at issue, and the issue is found for 
the demandant, whereby he hath judgment to recover, 
and sueth execution ; and after the tenant in tail dieth, 
his issue may have a writ of formedon against him that 
recovered ; and if he will plead the recovery by the ac- 
tion tried against his father [who was] tenant in tail, 
then he may shew and plead the release made to his 
father, and so the action which was sued, faint in law.^ 
§ 689. And it seemeth, that a faint action is as much 
to say in English a feigned action, that is to say, such 
an action as albeit the words of the writ be true, yet for 
certain causes he hath no cause nor title by the law to 
recover by the same action. And a false action is 
where the words of the writ be false. And in these two 
cases aforesaid, if the case were such that after such 
recovery, and eexcution thereupon done, the tenant in 



308 REMITTER. [Book in. 

tail had disseised him that recovered, and thereof died 
seised, whereby the land descended to his issue, this is 
a remitter to the issue, and the issue is in by force of the 
tail ; and for this cause I have put these two cases pre- 
cedent, to inform thee (my son) that the issue in tail 
and execution made against his ancestor, may be as well 
ty force of a descent made unto him after a recovery 
in his remitter, as he should be by the descent made to 
him after a discontinuance made by his ancestor of the 
•entailed lands by feoffment in the country, or otherwise, 
&c. 

§ 690. Also in the cases aforesaid, if the case were 
such, that after the demandant have judgment to 
recover against the tenant in tail, and the same tenant 
in tail dieth before any execution had against him, 
whereby the tenements descend to his issue, and he who 
recovereth sueth a scire facias out of the judgment to 
have execution of the judgment against the issue in 
tail, the issue shall plead the matter as aforesaid; and 
80 prove that the said recovery was false or faint in 
law, and so shall bar him to have execution of the 
judgment.* 

§ 691. Also if tenant in tail discontinue the tail, 
and dieth, and his issue bringeth his writ of formedon 
against the discontinuee (being tenant of the freehold 
of the land), and the discontinuee plead that he is not 
tenant, but utterly disclaimeth from the tenancy in the 
land ; in this case the judgment shall be, that the ten- 

H &c. !^ 



Chap. XII.] REMITTER. 309 

ant goeth without day, and after such judgment the 
issue in the tail that is demandant may enter into the 
land, notwithstanding the discontinuance, and by such 
entry he shall be adjudged in his remitter. And the 
reason is, for that if any man sue a prcecipe quod reddat 
^gainst any tenant of the freehold, in which action the 
demandant shall not recover damages, and the tenant 
pleads non-tenure, or otherwise disclaim in the tenancy, 
the demandant cannot aver his writ, [and say] that he 
is tenant as the writ supposeth. And for this cause 
the demandant, after that, that judgment is given that 
the tenant shall go without day, may enter into the 
tenements demanded, the which shall be as great an ad- 
vantage to him in the law, as if he had judgment to 
recover against the tenant, and by such entry he is in 
his remitter by force of the entail. But where the de- 
mandant shall recover damages against the tenant, there 
the demandant may aver, that he is tenant as the writ 
supposeth, and that for the advantage of the demandant 
to recover his damages, or otherwise he shall not recover* 
his damages, which are or were given to him by the law. 
§ 692. Also if a man bo disseised, and the disseisor 
die, his heir being in by descent, now the entry of the 
disseisee is taken away; and if the disseisee bring his 
writ of entry sur disseisin in the per against the heir, 
and the heir disclaim in the tenancy, &c., the demand- 
ant may aver his writ that he is tenant as the writ sup- 

1 Instead of '* recover/* some of the best French texts authorize , 
•• receive.*' 



810 REMITTER. [Book IIL 

pose, if he will, to recover his damages: but yet if he 
will relinquish the averment, &c., he may lawfully enter 
into the land because of the disclaimer, notwithstand- 
ing that his entry before was taken away. And this was 
adjudged before my master Sir R. Danby, late Chief 
Justice of the Common Pleas and his companions, &c. 

§ 693. Also where the entry of a man is congeable, 
although that he takes an estate to him when he is of 
full age for term of life, or in tail, or in fee, this is a 
remitter to him, if such taking of the estate be not by 
deed indented, or by matter of record, which shall con- 
clude or estop him. For if a man be disseised, and 
takes back an estate from the disseisor without deed, 
or by deed poll, this is a^ remitter to the disseisee, [&c.] 

§ 694. Also if a man let land for term of life to an- 
other, who alieneth to another in fee, and the alienee 
makes an estate to the lessor, this is a remitter to the 
lessor, because his entry was congeable,^ [&c.] 

§ 695. Also if a man be disseised, and the disseisor 
let the land to the disseisee by deed poll, or without deed 
for term of years, by which the disseisee entereth, this 
entry is a remitter to the disseisee. For in such case 
where the entry of a man is congeable, and a lease is 
made to him, albeit that he claimeth by words in pais, 
that he hath estate by force of such lease, or saith open- 
ly, that he claimeth nothing in the land but by force of 
such lease, yet this is a remitter to him, for that such 

-{ good y 
* I.e. lawful. 



Chap. XII.J REMITTER. 311 

disclaimer* in pais is nothing to the purpose. But if he 
disclaim^ in court of record, that he hath no estate but 
by force of such lease, and not otherwise, then is he 
concluded, &c. 

§ 696. Also if two joint-tenants seised of certain 
tenements in fee, the one being of full age, the other 
within age be disseised, [&c.,] and the disseisor die 
seised, and his issue enter, the one of the joint-tenants 
being then within age, and after that he cometh to full 
age, the heir of the disseisor letteth the tenements to the 
same joint-tenants for term of their [two] lives, this 
is a remitter (as to the moiety) to him that was within 
age, because he is seised of the moiety which belongeth 
to him in fee, for that his entry was congeable. But 
the other joint-tenant hath in the other moiety but an 
estate for term of his life by force of the lease, because 
his entry was taken away, &c. 

^ Instead of '* disclaimer," the best French texta authorize 
** claim." 

^Instead of '* disclaim," the best French texts authorize 
** claim." 



CHAPTER XIII. 



WARRANTY. 



§ 697. It is commonly said, that there be three war- 
ranties, scil. warranty lineal, warranty, collateral, and 
warranty that commences by disseisin. And it is ta 
be understood, that before the statute of Gloucester all 
warranties which descended to* them which are heirs 
to those who made the warranties, were bars to the same 
heirs to demand any lands or tenements against the 
warranties, except the warranties which commence by 
disseisin ; for such warranty was no bar to the heir, for 
that the warranty commenced by wrong, viz. by dis- 
seisin. 

§ 698. Warranty that commences by disseisin is in 
this manner : as where there is father and son, and the 
son purchaseth land, &c. and letteth the same land to 
his father for term of years, and the father by his deed 
thereof enfeoffeth another in fee, and binds him and 
his heirs to warranty, and the father dies, whereby the 
warranty descendeth to the son, this warranty shall 
not bar the son ; for notwithstanding this warranty the 
son may well enter into the land, or have an assise 

^ I.e. upon. See seotioo 601. n. 2. 

312 



Chap. XIIL] WARRANTY. 3l5 

against the alienee if he will, because the warranty 
commenced by disseisin; for when the father, which 
had but an estate for term of years, made a feoffment 
in fee, this was a disseisin to the son of the freehold 
which then was in the son. In the same manner it is, 
if the son letteth to the father the land to hold at will, 
and after the father make a feoffment with warranty, 
&c. And as it said of the father, so it may be said of 
every other ancestor, &c. In the same manner is it, of 
tenant by elegit, tenant by statute merchant, or tenant 
by statute staple, make a feoffment in fee with war- 
ranty,* this shall not bar the heir which ought to have 
the land, because such warranties commence by dis- 
seisin. 

§ 699. Also if a guardian in chivalry, or guardian 
in socage, make a feoffment in fee, or in fee tail, or for 
life, with warranty, &c., such warranties are not bars 
to the heirs to whom the lands shall be descended, be- 
cause they commence by disseisin. 

§ 700. Also, if father and son purchase certain 
lands, or tenements, to have and to hold to them jointly, 
&c., and after^ the father alien the whole to another, and 
bind him and his heirs to warranty, &c., and after* the 
father dieth, this warranty shall not bar the son of the 
moiety that belongs to him of the said lands or tene- 
ments, because as to that moiety which belongs to the 
son, the warranty commences by disseisin, &c, 

* -{ &c. y * I.e. afterwards. 
> 7.6. afterwards. 



314 WARRANTY. [Book III. 

§ 701. Also if A. of B. be seised of a mese, and F. 
of G. that no right hath to enter into the same mese, 
claiming the said mese, to hold to him and to his heirs, 
entereth into the said mese, but the same A. of B. is then 
continually abiding in the same mese; in this case the 
possession of the freehold shall be always adjudged in 
A. of B. and not in F. of G. because in such case where 
two be in one house, or other tenements, and the one 
claimeth by one title, and the other by another title, the 
law shall adjudge him in possession, that hath right to 
have the possession of the same tenements. But if in 
the case aforesaid, the said F. of G. make a feoffment 
to certain barrators and extortioners in the country, to 
have maintenance from them of the said house, by a 
deed of feoffment with warranty, by force whereof the 
said A. of B. dare not abide in the house, but goeth out 
of the same,* this warranty commenceth by disseisin, 
because such feoffment was the cause that the said A. 
of B. relinquished the possession of the same house.* 

§ 702. Also, if a man which hath no right to enter 
into other tenements, enter into the same tenements, and 
incontinently make a feoffment thereof to others by his 
deed with warranty, and deliver to them seisin, this 
warranty commences by disseisin, because the disseisin 
and feoffment were made as it were at one time. And 
that this is law, you may see in a plea M. 31 E. III.,* 
in a writ of formedon in the reverter. 

1 -{ house y « -{ &c. )► 

* Instead of 31 E. III., Co. Lit. has, both in the French and 



Chap. Xm.J WARRANTY. 815 

§ 703. Warranty lineal is where a man seised of 
lands in fee, maketh a feoffment by his deed to another, 
and binds himself and his heirs to warranty, and hath 
issue and die, and the warranty descends to* his issue, 
that is a lineal warranty. And the cause why this is 
called lineal warranty, is not because the warranty de- 
acendeth from the father to his heir; but the cause is, 
for that if no such deed with warranty had been made 
by the father, then the right of the tenements should 
descend to the heir, and the heir should convey the de- 
scent from his father, &c. 

§ 704. For if there be father and son, and the son 
purchase lands* in fee, and the father of this disseiseth 
his son, and alieneth to another in fee by his deed, and 
by the same deed bind him and bis heirs to warrant the 
same tenements, &c., and the father dieth; now is the 
son barred to have the said tenements: for he cannot 
by any suit, nor by other mean of law, have the same 
lands by cause of the said warranty. And this is a 
collateral warranty; and yet the warranty descendeth 
lineally from the father to the son. 

§ 705. But because if no such deed with warranty 
had been made, the son in no manner could convey the 
title which he hath to the tenements from his father 
unto him, inasmuch as his father had no estate in right 

in the translation ** 11 E. III." ; but Coke says: '* This is mis- 
taken, and should be 81 E. III., and so is the original." 

* Le, upon. See section 602, n. 2. 

> Instead of *' lands," the best French texts authorize '* tene- 
ments." 



316 WARRANTY. [Book III. 

in the lands; wherefore such warranty is called collat- 
eral warranty, inasmuch as he that maketh the warran- 
ty is collateral to the title of the tenements: and this 
is as much as to say, as he to whom the warranty de- 
scendeth, could not convey to him the title which he 
hath in the tenements by him that made the warranty, 
in case that no such warranty were made. 

§ 706. Also, if there be grandfather, father, and son, 
and the grandfather is disseised, in whose possession 
the father releaseth by his deed with warranty, &c., and 
dieth, and after the grandfather dieth ; now the son is 
barred to have the tenements by the warranty oi the 
father. And this is called a lineal warranty, because 
if no such warranty were, the son could not convey the 
right of the tenements to him, nor shew how he is heir 
to the grandfather but by means of the father.* 

§ 707. Also, if a man hath issue two sons and is dis- 
seised, and the eldest son release to the disseisor by his 
deed with warranty, &c., and dies without issue, and 
afterwards the father dieth, this is a lineal warranty to 
the younger son, because albeit the eldest son died in the 
life of the father, yet by possibility it might have been, 
that he might convey to him the title of the land by his 
elder brother, if no such warrantv had been. For it 
might be, that after the death of the father the elder 

1 Tomlins suggests that the meaning is clearer if the conclude 
ing passage be read thus : "The son could convey the right of 
the tenements to him. or show how he is heir to the grandfather 
by means of the father." 



Chap. XIII.] WARRANTY. 317 

brother entered into the tenements and died without 
issue, and then the younger son shall convey to him the 
title by the elder [son]. But in this case if the young- 
er son releaseth with warranty to the disseisor, and 
dicth without issue, this is a collateral warranty to the 
elder [son,] because that of such land as was the fa- 
ther's, the elder by no possibility can convey to him 
the title by means of the younger son. 

§ Y08. Also, if tenant in tail hath issue three sons, 
and discontinue the tail in fee, and the middle son re- 
lease by his deed to the discontinuee, and bind him and 
his heirs to warranty, &c., and after the tenant in tail 
dieth, and the middle son dieth without issue, now the 
eldest son is barred to have any recovery by writ of 
formedon, because the warranty of the middle brother 
is collateral to him, inasmuch as he can by no means 
convey to him by force of the tail any descent by the 
middle, and therefore this is a collateral warranty. 
But in this case, if the eldest son die without issue, now 
the youngest brother may well have a writ of formedon 
in the discender, and shall recover the same land, be- 
cause the warranty of the middle is lineal to the young- 
est son, for that it might be that by possibility the mid- 
dle might be seised by force of the tail after the death 
of his oldest brother, and then the youngest brother 
might convey his title of descent by the middle brother. 

§ 709. Also, if tenant in tail discontinue the tail, 
-and hath issue and dieth, and the uncle of the issue re- 
lease to the discontinuee with warranty, &c., and dieth 



318 WARRANTY. FBooK im 

without issue, this is a collateral warranty to the issue 
in tail, because the warranty descendeth upon the issue, 
that cannot convey himself to the entail by means of his 
uncle. 

§ 710. Also, if the tenant in tail hath issue two 
daughters and dieth, and the elder entereth into the 
whole, and thereof maketh a feoffment in fee with 
warranty, &c., and after the elder daughter dieth with- 
out issue: in this case the younger daughter is barred 
as to the one moiety, and as to the other moiety she is 
not barred. For as to the moiety which belongeth to 
the younger daughter, she is barred, because as to this 
part* she cannot convey the descent by means of her 
elder sister, and therefore as to this moiety, this is a 
collateral warranty. But as to the other moiety, which, 
belongeth to her elder sister, the warranty is no bar to 
the younger sister, because she may convey her descent 
as to that moiety which belongeth to her elder sister by 
the same elder sister, so as to this moiety which belong- 
eth to the elder sister, the warranty is lineal to the 
younger sister. 

§ 711. And note, that as to him that demandeth the 
fee simple by any of his ancestors, he shall be barred 
by warranty lineal which descendeth upon him, unless 
he be restrained by some statute, 

§ 712. But he that demandeth fee tail by writ of 
formedon in discender, shall not be barred by lineal war- 

1 Instead of ** this part," the best French texts authoruse ** th© 
moiety whicli belongeth to her." 



Chap. XIU.] WARRANTY. 31t> 

ranty, unless he hath assets by descent in fee simple by 
the same ancestor that made the warranty. But col- 
lateral warranty is a bar to him that demandeth fee, and 
also to him that demandeth fee tail without any other 
descent of fee simple, except in cases which are re- 
strained by the statutes, and in other cases for certain 
causes, as shall be said hereafter. 

§ 713. Also, if land be given to a man, and to the 
heir of his body begotten, who taketh wife, and have 
issue a son between them, and the husband discontinues 
the tail in fee and dieth, and after the wife releaseth 
to the discontinuee in fee with warranty, &c., and dieth, 
and the warranty descends to the son, this is a collateral 
warranty. 

§ 714. But if lands be given to the husband and 
wife, and to the heirs of their two bodies begotten, who 
have issue a son, and the husband discontinue the tail 
and dieth, and after the wife release with warranty 
and dieth, this warranty is but a lineal warranty to the 
son ; for the son shall not be haired in this case to sue 
his writ of formedon, unless that he hath assets by 
descent in fee simple by his mother, because their issue 
in the writ of formedon ought to convey to him the right 
as heir to his father and mother of their two bodies be- 
gotten per formam doni; and so in this case the warran- 
ty of the father and the warranty of the mother are but 
lineal warranty to the heir, &c. 

§ 715. And note, that in every case where a man de- 
mandeth lands in fee tail by writ of formedon, if any 



320 WARRANTY. [Book UI. 

of the issue in tail that hath possession, or that hath not 
possession, make a warranty, &c., if he which sueth the 
writ of formedon might by any possibility, by matter 
which might be in fait, convey to him by him that made 
the warranty per formam doni,^ this is a lineal warran- 
ty, and not collateral. 

§ 716. Also if a man hath issue three sons, and giv- 
cth land to the eldest son, to have and to hold to him and 
to the heirs of his body begotten, and for default of 
such issue, the remainder to the middle son, to him and 
to the heirs of his body begotten, and for default of 
such issue of the middle son, the remainder to the young- 
est son, and to the heirs of his body begotten; in this 
case, if the eldest^ discontinue the tail in fee, and bind 
liim and his heirs to warranty, and dieth without issue, 
this is a collateral warranty to the middle son, and shall 
be a bar to demand the same land by force of the remain- 
der; for that the remainder is his title, and his elder 
l)rother is collateral to this title, which commenceth by 
force of the remainder.' In the same manner it is, if 
the middle son hath the same land by force of the re- 
mainder, because his eldest brother made no discon- 
tinuance, but died without issue of his body, and after 
the middle make a discontinuance with warranty, &c., 
and dieth without issue, this is a collateral warranty to 
the youngest son. — And also in this case, if any of the 

M Ac. ^ 

a ^ son }- 



Chap. XIII.] WARRANTY. 321 

^aid sons be disseised, and the father that made the gift, 
^., releaseth to the disseisor all his right* with war- 
Tanty,^ this is a collateral warranty to that son upon 
whom the warranty deseendeth, caiisd qua supra. 

§ 717. And so note, that where a man that is collat- 
eral to the title, and r.e.easeth this with warranty, &c., 
this is a collateral warranty. 

§ 718. Also if a father giveth land to his eldest son, 
to have and to hold to him and to the heirs male of his 
body begotten, the remainder to the second son, &c., if 
the eldest son alieneth in fee with warranty, &c., and 
Jiath issue female, and dieth without issue male, this is 
no collateral warranty to the second son, for he shall not 
be barred of^ his action of formedon in the remainder, 
because the warranty descended to* the daughter of the 
elder son, and not to^ the second son ; for every war- 
ranty which descends, deseendeth to® him that is heir 
to him who made the warranty by the common law. 

§ 719. Note, if land be given to a man, and to the 
heirs male of his body begotten, and for default of 
such issue, the remainder thereof to his heirs female 
of his body begotten, and after the donee in tail maketh 
a feoffment in fee with warranty accordingly, and hath 

M &c. ^ 
M &c. }^ 

« Instead of ** for he shall not be barred of," the best French 
lexts authorize *' nor shall it hurt him in respect to.'' 
« Le, upon. See section 601, n. 2. 
* I.e. upon. 
« Le. upon. 



322 WARRANTY. [Book III. 

issue a son and a daughter, and dieth, this warranty is 
but a lineal warranty to the son to demand by a writ of 
formedon in the discender; and also it is but lineal to 
the daughter, to demand the same land by writ of for- 
medon in the remainder, if her^ brother dieth without 
issue male, because she elaimeth as heir female of the 
body of her father engendered. But in this case, if her 
brother in his life release to the discontinuee, &c. with 
warranty, &c., and after dieth without issue, this is a 
collateral warranty to the daughter, because she cannot 
convey to her the right which she hath by force of the 
remainder by any means of descent by her brother, for 
that* the brother is collateral to the title of his sister, 
and therefore his warranty is collateral, &c. 

§ 720. Also I have heard say, that in the time of 
King Richard the Second, there was a justice of the 
Common Pleas, dwelling in Kent, called Richel, who 
had issue divers sons, and his intent was, that his eldest 
son should have certain lands and tenements to him 
and to the heirs of his body begotten ; and for default 
of issue, the remainder to the second son, &c., and so 
to the third son, &c., and because he would that none of 

1 Instead of ** if her,'* the translation in Co. Lit. has " unless 
the." Ritso's Science of the Law, 114, says that *'we should 
read * if the brother dieth,' &c. ; for it is only in the event of the 
brother's dying without issue male, that the heir female can 
have any claim at all." The amendment is authorized by the 
best French texts ; and there is textual criticism to the same 
effect in Vaughan, 868-869. 

3 Instead of ** for that," the best French texts authorize '* and 
therefore." 



Chap. Xm.] WARRANTY. 323 

his sons should alien, or make warranty to bar or hurt 
the others that should be in ther emainder, &e., he cause- 
eth an indenture to be made to this effect, viz. that the 
lands and tenements were given to his eldest son upon 
such condition, that if the eldest son alien in fee, or in 
fee tail, &c., or if any of his sons alien, &c., that then 
their estate should cease and be void, and that then the 
same lands and tenements immediately should remain 
to the second son, and to the heirs of his body begotten,* 
ei sic ultra, the remainder to his other sons, and livery 
of seisin was made accordingly. 

§ 721. But it seemeth by reason that all such re- 
mainders in the form aforesaid are void and of no value, 
and that for three causes. One cause is, for that 
every remainder which beginneth by a deed it behoveth 
that the remainder be in him to whom the remainder 
is entailed by force of the same deed, before the livery 
of seisin is made to him which shall have the freehold ; 
for in such case the growing and the being of the remain- 
der is by the livery of seisin to him that shall have the 
freehold, and such remainder was not to the second son 
at the time of the livery of seisin in the case afore- 
said, &c. 

§ 722. The second cause is, if the first son alien the 
tenements in fee, then is the freehold and the fee 

1 -{ &c., upon the same condition, acUicet, that if the second son 
alien, &c., that then his estate should cease, and that then the 
same lands and tenements immediately shouli remain to the 
third son and the heirs of his body begotten, y 



324 WARRANTY. [Book HI. 

simple in the alienee, and in none other; and if the 
donor had any reversion, by such alienation the rever- 
sion is discontinued : then how by any reason may it be, 
that such remainder shall commence his being and his 
growing immediately after such alienation made to a 
stranger, that hath by the same alienation a freehold 
and fee simple, &c. ? And also if such remainder 
should be good, then might he enter upon the alienee, 
where he had no manner of right before the alienation, 
ivhich should be inconvenient. 

§ 723. The third cause is, when the condition is 
auch, that if the elder son alien, &c., that his estate 
fihall cease or be void, &c., then after such alienation, 
Ac., may the donor enter by force of such condition,^ as 
it seemeth; and so the donor or his heirs in such case 
ought sooner to have the land than the second son, that 
had not any right before such alienation; and so it 
seemeth that such remainders in the case aforesaid are 
void.^ 

§ 724. Also at the common law, before the statute 
of Gloucester,^ if tenant by the curtesy had aliened in 
fee with warranty,^ after his decease this was a bar to 
the heir,® as it appeareth by the words of the same 
statute ; but it is remedied by the same statute, that the 
warranty of tenant by the curtesy shall be no bar to the 

«6E. 1.(1278.) 
* ^ accordingly y 

6 ^ &C. J^ 



Chap. XIII.] WARRANTY. 325 

heir, unless that he hath assets by descent by the tenant 
by the curtesy ; for before the said statute, this was a 
collateral warranty to the heir, for that he could not con- 
vey any title of descent to the tenements by the tenant 
by the curtesy, but only by his mother, or other of his 
ancestors,^ and this is the cause why it was a collateral 
warranty. 

§ 725. But if a man inheritor taketh wife, who have 
issue a son between them, and the father dieth, and the 
son entereth into the land, and endow his mother, and 
after the mother alieneth that which she hath in dower, 
to another in fee with warranty accordant, and after 
dieth, and the warranty descendeth to the son, now the 
son shall be barred to demand the same land by cause 
of the said warranty ; because that such collateral war- 
ranty of tenant in dower is not remedied by any statute. 
The same law is it, where tenant for life maketh an 
alienation with warranty, &c., and dieth, and the war- 
ranty descendeth to him which hath the reversion or the 
remainder,* they shall be barred by such warranty.* 

§ 726. Also, in the case aforesaid, if it were so that 
when the tenant in dower aliened, &c., his heir was 
within age, and also at the time that the warranty de- 
scended upon him he was within age; in this case the 
heir may after enter upon the alienee, notwithstanding 
the warranty descended, &c., because no laches shall 

M &o. )^ 

M Ac. ^ 



336 WARRANTY. [Book III. 

be adjudged in th^ beif withij^ Qge that Jie di4 not jbi}- 
ter upon the alienee in the |ifQ of tenant in dpwer. But 
if the heir were within age at t^e tiiife of tlje alieija^ioq, 
&c., and after he cometb tq full agp \u the lifq pf tenant 
in dower, and so beipg of full age Ije dpth no); fifjfer upo?i 
the alipnee in the life qf tjsn^nt ip dqwer, and ^ftj^r the 
tenant in dower dieth, &c., there peradventure Jbe heir 
shall b^ barred by such warranty, bpcausQ }\. sha|l be go- 
counted his folly, that fie being qf in\] agp d^4 not en- 
tef in t)ie life of tenant }i^ do>yef, &q. 

§ 727. [But ^ow by thp statutjs fpadq l\ H. VII., 
cap. IQ., it is ordained, if any woman discoi^tipue, 
aliqn, |'eleas<e, or confirm with warranty, any lands or 
tenements which she holdeth in dower for term of life, 
or in tail of the gift of her first husband, or of his an- 
cestors, or the gift of any other seised to the use of the 
first husband, or of his ancestors, that all such warran- 
ties, &c. shall be void; and that it shall be lawful for 
him which hath these lands or tenements, after the 
death of the same woman to enter. ]^ 

§ 728. Also, it is spoken in the end of the said 
statute of Gloucester, which speaketh of the alienation 
with warranty made by the tenant by the curtesy in this 
form. Also, in the same manner, the heir of the woman 
after the death of the father and mother shall not be 
barred of action, if he demandeth the heritage or the 
marriage of his mother by writ of entry, that his father 
aliened in his mother's time, whereof no fine is levied in 
1 Coke says : ** This is an addition to Littleton." 



Chap. JIII.] WARRANTY. 327 

the king's coi;rt : apd so by force of the sapfp j9ta|:ute, if 
the husband of th.Q ^ife aliei^ the herftage or pi^aTrfiage 
of his wife in fee yith wajrraQty, jScc., by hU\ 4^4 ^P I^^P 
country, it is clear la^ that this warranty shall pot b^r 
the heir, unless he hatl^ ^sets )^y 4escent.f 

§ 729. ^ut the dpubt iS; if |he husl)9nd alien tlfp 
heritage of bis wife by $pe leyie4 in t)ie king's coi^rf; 
with warranty, &c., if this shal^ |>ar the ^eir withoi^ 
any descent in yalwp.* A^d as to this, f jyilj fi|5re tejl 
certain reason^, ;!i^bich I haye ^eard said }n ^f3 fnattjer, 
I have heard my naaster Sir Jlichard Newtop, la^e Chief 
Justice of the Compipn Fleas, ppce ?ay fp the same 
court, that such warranty as the busl^ap4 m^kefh l)y p^p 
levied in the king's court shall bar t^e ^eir, albeit he 
hath nothing by descent, because the statute saith 
(whereof no fine is levied in the king's court^) ; and so 
by his opinion this warranty by fii^e* remaineth yet a 
collateral warranty, as it was at the comipon la\y^ not 
remedied by the said statute, because the said statute 
excepteth alienations by fine with warranty. 

§ 730. And some others have said, an4 yet do say 
the contrary, and this is their proof, that as by the same 
chapter of the said statute it is ordained, that the war- 
ranty of the tenant by the curtesy shall be no bar to the 
heir, unless that he hath assets by descent, &c., although 

M Ac. ^ 

» i Ac. y 
M Ac. ^ 



328 WARRANTY. [Book UU 

that the tenant by the curtesy levy a fine of the same 
tenements with warranty, &c., as strongly as he can, yet 
this warranty shall not bar the heir, unless that he hath 
assets by descent, &c. And I believe that this is law; 
and therefore they say, that it should be inconvenient to 
intend the statute in such manner as a man that hath 
nothing but in right of his wife might by fine levied hy 
him of the same tenements which he hath but in right 
of his wife, with warranty, &c., bar the heir of the same 
tenements without any descent of fee simple, &c., where 
the tenant by the curtesy cannot do this. 

§ 731. But they have said, that the statute shall be 
intended after this manner, sciL where the statute saith^ 
whereof no fine is levied in the king's court, that is to 
say, whereof no lawful fine is rightfully levied in the 
king's court : and that is, whereof no fine of the husband 
and his wife is levied in the king's court, for at the time 
of the making of the said statute, every estate of lands, 
or tenements that any man or woman had, which should 
descend to his heir, was fee simple without condition, or 
upon certain conditions in deed or in law. And because 
that then such fine might rightfully be levied by the 
husband and his wife, and the heirs of the husband 
should warrant, &c., such warranty shall bar the heir,^ 
and so they say that this is the meaning of the statute^ 
for if the husband and his wife should make a feoffment 
in fee by deed in the country, his heir after the decease 
of the husband and wife shall have a writ of entry sur 
M &c. ^ 



Chap. XIII.J WARRANTY. 32» 

cui in vita, £c.j notwithstanding the warranty of the 
husband, then if no such exception were made in the sta- 
tute of the fine levied, &c., then the heir should have the 
writ of entry, &c., notwithstanding the fine levied by 
the husband and his wife, because the words of the sta- 
tute before the exception of the fine levied, &c., are gen- 
eral, viz., that the heir of the wife after the death of the 
father and mother is not barred of action, if he demand 
the heritage or the marriage of his mother by writ of 
entry, that his father aliened in the time of his mother, 
and so albeit the husband and wife aliened by fine, yet 
this i^ true, that the husband aliened in the time of the 
mother, and so it should be in that case of the statute, 
unless that such words were, viz., whereof no fine is 
levied in the king's court; and so they say, that this is 
to be understood, whereof no fine by the husband and 
his wife is levied in the king's court, the which is law- 
fully levied in such case ; for if the justices have knowl- 
edge, that a man that hath nothing but in the right of 
his wife, will levy a fine in his name only, they will not, 
neither ought they to take such fine to be levied by the 
husband alone without^ his wife, &c. Ideo qucere of this 
matter, &c. 

§ 732. Also, it is to be understood, that in these 
words, where the heir demands the heritage, or the mar- 
riage of his mother, this word (or) is a disjunctive, and 
is as much as to say, if the heir demand the heritage of 
his mother, viz. the tenements that his mother had in 
1 -{ naming } 



330 WARRANTY. [Book IH. 

fee simple by descent or by purchase, or if fbe jieir d.e- 
mand the marriage of bis mother, that is to say, tb.e tei^e- 
ments th^t were given to his ^lQther in fr^qkxaarriagp. 

§ 733. Also, where^ it ip contained in diyers ,deed§ 
these wof ds in J-atiij, Pgq et ha^ede^ vfiei^ tpq^rrqntiza- 
himvs et irdperpetuurn defendexr\u$; it \^ to be sej^p 
what .effect this vor4, defendenius, )iat}^ in si^ch .4ee4sj 
and it seejneth that it h^tl^ pot tl^Q eff.Qcf pf w^rrapty, 
ijQr compreheijdetji ip ft the cause of warranty ; ^of if it 
should l^e so, that it tpok ph^ effpc); qx c^pse of w^jr r^nty, 
then it should h^ ppt iptp gomQ fift.es levij^d ip the kfpg^s 
court ; and a man nieyer ^a^ J:hat thi^ v^ojrd, defendenius, 
was in any fine, but only this yror4, warvfifttizabiniw; 
by which it seemeth, that this ^ord [and ver)^], tuar- 
rantizo? maketh the warranty, and is tl^e c^ifse of y?ar- 
ranty, and no other wor4 in pur layi^. 

§ 734. Also, if tenant in tail J)e ^ei^ed of lapds^ de- 
visable by testament after the custom, &c., apd the ten- 
ant in the tail alieneth the [same] tenements tq his 
brother in fee, and hath issue, and dieth, and after his 
brother deviseth by his testament the same tenements to 
another in fee, and bindeth him and bis heirs to war- 
ranty, &c., and dieth without issue ; it seemeth that this 
warranty shall not bar the issue in the tail, if he will 
sue his writ of formedon, because that this warranty 
^ I.e. whereas. 

• «{ as, &c. y 

* Instead of *' lands," the best French texts authorize *' tene- 
ments.*' 



Chap. XIII.] WARRANTY. 331 

shall not descend to the issue in tail^ in so muc^ as the 
uncle of the issue was not boun4 tq the same yfarr^nty 
in his lifetime : neither coul^ he \Yarf ^Qt tb{9 tenements 
in his life^ in so miich as the devise cpu^d pot take any 
execution or effept until after bis decease, ^i^d ii^ 39 
much as the uncle in his life was njjjt ^eld tp ^af rapty, 
such warranty may not 4escei^4 fP^ ^^^ 1^9 ^^^ iaane 
in the tail, &c., ^or pothing can (^esceifd txoif^ the an- 
cestor to his heir, unless the sa^e ^ere fi^ the ancestor. 
§ 735. ^139 ^ yarr^njby cannot go according to the 
nature pf the tenpments by the custpm, &c., bijt 9»|y 
according to the form of the cpmmon law. Fjor if t^e 
tenant in tail be seised of tenements ii^ borough !plnglish, 
where the custom is that all the tenements yitbiu the 
same borough ought to descenc^ t9 the youngest son, and 
he discontinueth the tail with warranty, &c., ai^d hath 
issue two sons, and dieth seised of other lands or tene- 
ments in the same borough in fee simple to the value or 
more of the lands entailed, &c., yet the youngest son 
shall have a writ of formedon of the lands tailed, and 
shall not be barred by the warranty of his father, albeit 
assets descended to him in fee simple from his said 
father according to the custom, &c., because the war- 
ranty descendeth upon his elder brother who is in full 
life,^ and not upon the youngest. [And] in the same 
manner is it of collateral warranty made of such tene- 
ments, where the warranty descendeth upon the eldest 
son, &c., this shall not bar the younger son, &c. 
1 i &o. y 



832 WARRANTY. [Book III. 

§ 736. In the same manner is it of lands in the 
county of Kent, that are called gavelkind, which lands 
are dividable between the brothers, &c., according to the 
custom ;^ if any such warranty be made by his ancestor, 
such warranty shall descend only to^ the heir which is 
heir at the common law, [that is to say, to the elder 
brother, according to the conusance of the common 
law,] and not to all the heirs that are heirs of such tene- 
ments according to the custom.^ 

§ 737. Also, if tenant in tail hath issue two daugh- 
ters by divers venters, and dieth, and the daughters 
enter, and a stranger disseiseth them of the same tene- 
ments, and one of them"* releaseth by her deed to the 
disseisor all her right, and bind her and her heirs to 
warranty, and die without issue : in this case the sister 
which surviveth may well enter, and oust the disseisor 
of all the tenements, because such warranty is no discon- 
tinuance nor collateral warranty to the sister that sur- 
viveth, for that they are of half blood, and the one can- 
not be heir to the other, according to the course of the 
common law. But otherwise it is, where there be 
daughters of tenant in tail by one venter. 

§ 738. Also, if tenant in tail letteth the lands to a 
man for term of life, the remainder to another in fee, 
and a collateral ancestor confirmeth the state of the ten- 

* I.e. upon. See section 601, n. 2. 

^Instead of '*them,*' the best French texts authorize *' the 
daughters." 



Chap. XIU.] WARRANTY. 333 

ant for life, and bindeth him and his heirs to warranty 
for term of the life of the tenant for life, and dieth, and 
the tenant in tail hath issue and dies; now the issue is 
barred to demand the tenements by writ of formedon 
during the life of tenant for life, because of the collat- 
eral warranty descended upon the issue in tail. But 
after the decease of the tenant for life, the issue shall 
have a [writ of] formedon, &c. 

§ 739. And upon this I have heard reason, that this 
case will prove another case, viz. if a man letteth his 
lands to another, to have and to hold to him and to his 
heirs for term of another's life, and the lessee dieth liv- 
ing celuy a que vie, dec, and a stranger entereth into the 
land, that the heir of the lessee may put him out, [&c,] 
because in the case next aforesaid, inasmuch as a man 
may bind him and his heirs to warranty to tenant for 
life only, during the life of the tenant for life, and this 
warranty descendeth to^ the heir of him which made 
the warranty, the which warranty is no warranty of 
inheritance, but only for term of another's life : by the 
same reason where lands are let to a man, to have and to 
hold to him and his heirs for term of another's life, if 
the lessee die living celuy a que vie, &c. For they have 
said, that if a man grant an annuity to another, to have 
and to take to him and his heirs for term of another's 
life if the grantee die, &c., that after his death^ his heir 

1 I.e. upon. See section 601, n. 2. 

> Instead of ** after hiB death/* the best French texts authorize 
*** afterwards." 



334 WARRANTY. [Book in. 

shall have the annuity during the life of celuy a que vie, 
&c. Quosre de ista materia, 

§ 740. But where such lease or grant is made to a 
man and to his heirs for term of years, in this case the 
heir of the lessee or the grantee shall not after the death 
of the lessee or the grantee have that which is so let or 
granted, because it is a chattel real and chattels reals 
by the common law shall come to the executors of the 
grantee, or of the lessee, and not to the heir.* 

§ 741. Also, in some cases it may be, that albeit a 
collateral warranty be made in fee, &c., yet such a war- 
ranty may be defeated and taken away. As if tenant in. 
tail discontinue the tail in fee, and the discontinuee is 
disseised, and the brother of the tenant in tail releaseth 
by his deed to the disseisor all his right, &c., with war- 
ranty in fee, and dieth without issue, and the tenant in 
tail hath issue and die; now the issue is barred of his 
action by force of the collateral warranty descended up- 
on him. But if afterwards the discontinuee entereth 
upon the disseisor, then may the heir in tail have well 
his action of fomiedon, &c., because the warranty is 
taken away and defeated, for when a warranty is made 
to a man upon an estate which he then had, if the estate 
be defeated, the warranty is defeated. 

§ 742. In the same manner it is, if the discontinuee 
make a feoffment in fee, reserving to him a certain rent, 
and for default of payment a re-entry, &c., and a col- 



Chap. XIIL] WARRANTY. 335 

lateral warranty of the ancestor is made^ to the feoffee 
that hath the estate upon condition, &c., and^ dieth with- 
out issue, albeit that this warranty shall descend upon 
the issue in tail ; yet if after the rent be behind, and the 
discontinuee enter into the land,^ then shall the issue in 
tail have his recovery by writ of formedon, because the 
collateral warranty is defeated. And so if any such col- 
lateral warranty be pleaded against the issue in tail, in 
his action of formedon, he may shew the matter as is 
aforesaid, how the warranty is defeated, &c., and so he 
may well maintain his action, &c. 

§ 743. Also, if tenant in tail make a feoffment to 
his uncle, and after the uncle make a feoffment in fee 
with warranty, &c., to another, and after the feoffee of 
the uncle doth re-enfeoff again the uncle in fee, and 
after the uncle enfeoffeth a stranger in fee without war- 
ranty, and dieth without issue, and the tenant in tail 
dieth, if the issue in tail will bring his writ of formedon 
against the stranger that was the last feoffee, and that by 

1 Instead of " collateral warranty of the ancestor is made." the 
best French texts authorize ** a collateral ancestor releaseth/* 

2 Probably the words "the ancestor" should be inserted here. 
They are not in any French text. They are suggested in 
Ritso*s Science of the Law, 114, where it is said : " I should 
read, * and the ancestor dieth without issue'; for it is not the 
discontinuee who is here spoken of, nor tlie feoffee who liath 
the estate upon condition, but the collateral ancestor of the ten- 
ant in tail, who made the warranty." The suggestion is approved 
in Hargrave and Butler's notes. 



336 WARRANTY. [Book III. 

the uncle, the issue shall not be barred by the warranty 
that was made by the uncle to the first feoffee of his 
uncle, for that the said warranty was defeated and taken 
away, because the uncle took back to him as great an 
estate from his first feoffee to whom the warranty was 
made, as the same feoffee had from him. And the cause 
why the warranty is defeated is this, viz. that if the 
warranty should staiid in his force, then the uncle 
should warrant to himself, which cannot be. 

§ 744. But if the feoffee had made an estate to the* 
uncle for term of life, or in tail, saving the reversion, 
&c., or a gift in tail to the uncle, or a lease for term of 
life, the remainder over, &c. in this case the warranty 
is not altogether taken away, but is put in suspense 
during the estate that the uncle hath. For after that, 
that the imcle is dead without issue, &c., then he in the 
reversion, or he in the remainder, shall bar the issue in 
tail in his writ of formedon by the collateral warranty 
in such case, &c. But otherwise it is where the uncle 
hath as great estate in the land of the feoffee to whom 
the warranty was made, as the feoffee hath himself. 
Causa patet, 

§ 745. Also, if the uncle after such feoffment made 
with warranty, or a release made by him with warranty, 

1 Instead of ** the," the translation in Co. Lit. has ** his." 
Ritso's Science of the Law, 114. says : ** We should read. * but if 
the feoffee had made an estate to the uncle,* meaning the 
uncle of the tenant in tail mentioned in the preceding section." 
Hargrave and Butler's notes, citing Ritso, say : ** Here * his' 
seems printed by mistake instead of ' the.' " 



Chap. XIII.] WARRANTY. 337 

be attaint of felony, or outlawed of felony, such collat- 
eral warranty shall not bar nor grieve the issue in the 
tail, for this, that by the attainder of felony, the blood 
is corrupted between them, &c. 

§ 746. Also, if tenant in tail be disseised, and after 
make a release to the disseisor with warranty in fee, 
and after the tenant in tail is attaint, or outlawed of 
felony, and hath issue and dieth ; in this case the issue 
in tail may enter upon the disseisor. And the cause 
is for this, that nothing maketh discontinuance in this 
case but the warranty, and warranty may not descend 
to the issue in tail, for this, that the blood is corrupt be- 
tween him that made the warranty and the issue in tail. 

§ 747. For the warranty always abideth at the com- 
mon law, and the common law is such, that when a man 
is attaint or outlawed of felony, which outlawry is an 
attainder in law, that the blood between him and his son, 
and all others which shall be said his heirs, is corrupt, 
so that nothing by descent may descend to any that may 
be said his heir by the common law. And the wife of 
such a man that is so attaint, shall never be endowed of 
the tenements of her husband so attained. And the 
cause is, for that men should more eschew to commit 
felonies.^ But the issue in tail as to the tenements 
tailed is not in such cade barred, because he is inherita- 
ble by force of the statute, and not by the course of the 
common law ; and therefore such attainder of his father 

M &c. ^ 



338 WARRANTY. [Book IIL 

or of his ancestor in the tail,* shall not put him out of 
his right by force of the tail, &c. 

§ 748. Also, if tenant in tail enfeoff his uncle, which 
enfeoffs another in fee with warranty, if after the feoffee 
by his deed release to his uncle all manner of warranty, 
or all manner of covenants real, or all manner of de- 
mands, by such release the warranty is extinct. And 
if the warranty in this case be pleaded against the heir 
in tail that bringeth his writ of formedon, to bar the heir 
•of his action, if the heir have and plead the said release, 
Ac, he shall defeat the plea in bar, &c. And many other 
cases and matters there be, whereby a man may defeat 
a warranty, &c. 

§ 749. And it is to be understood, that in the same 
manner as the collateral warranty may be defeated by 
matter in deed or in law ; in the same manner may a 
lineal warranty be defeated, &c. For if the heir in tail 
bringeth a writ of formedon, and a lineal warranty of 
his ancestor inheritable by force of the tail, be pleaded 
against him, with this, that assets descended to him of 
fee simple, [which he hath] by the same ancestor that 
made the warranty ; if the heir that is demandant may 
annul and defeat the warranty, that sufficeth him : for 
the descent of other tenements of fee simple making 
nothing to bar the heir without the warranty, &c. 

Now I have made to thee, my son, three books. 

M &c. }. 



TABULA. 



THE FIRST BOOK 

is of estates which men have in lands and tenements : that is to say :— 

CHAP. » 

Of Tenant In Fee Simple 1 

Of Tenant in Fee Tail E 

Of Tenant in Fee * Tall after Possibility of Issue Extinct a 

Of Tenant by the Curtesy of England 4 

Of Tenant in Dower & 

Of Tenant for Term of Life (V 

Of Tenant for Term of Years 7 

Of Tenant at Will by the Common Law g 

Of Tenant at Will by the Custom of a Manor 9 

[Of Tenant by the Verge) 10 

THE SECOND BOOK 3 

Of Honoage I 

Of Fealty 2 

Of Escuage S 

Of Knight's Service 4 

Of Socage 5 

Of Frankalmoign 

Of Homage Ancestral 7 

Of Grand Serjeanty 8 

Of Petit Serjeanty 

1 This column Is not in the earliest editions. 

* Instead of '' Fee," the earliest French texts authorize " the." 

» ^Is^ 

889 



340 TABULA. 

CRAP. 

OfTenureinBu r ga^e 10 

Of Tenure in VlUenaKe 11 

Of > Rents* 12 

And these two little books I have made to thee for the better understanding 
of certain chapters of the Ancient Book of Tenures.* 

THE THIRD BOOK* 

Of Parceners [according to the course of the Common Law] l 

(Of Parceners according to the Custom] 8 

Of Joint-Tenants 3 

Of Tenftnts in Common 4 

Of Estates in Lands and Tenements on Condition & 

Of Descents which toll Entries 

Of Continual Claim 7 

Of Releases « 

Of Conflrmations 9 

Of Attornments 10 

Of Discontinuances 11 

Of Remitters 13 

Of Warranties* 13 

^ ■{ Three manner of }> 

* ■{ scil. Rent Service, Rent Charge, and Rent Seek, y 

* Instead of ^' Book of Tenures,'* the earliest French texts authorize '' books 
of tenures.'* The French texts and Englis(h translations before Colce follnvr 
the earliest texts in this matter ; but Coke understands that Littleton iiieuus 
the short treatise entitled '' The Old Tenures.'' 

M is }■ 

* -{ 8cil. Warranty Lineal, Warranty Collateral, and Warranty which com- 
mences by Disseisin. >• 



[EPILOGUS.] 

And know, my son, that I would not have thee be- 
lieve that all which I have said in these books is law, 
for I will not presume to take this upon me. But of 
those things that are not law, inquire and learn of my 
wise masters learned in the law. Notwithstanding 
albeit that certain things which are moved and specified 
in the said books are not altogether law, yet such things 
shall make thee more apt, and able to understand and ap- 
prehend the arguments and the reasons of the law, &c. 
For by the arguments and reasons in the law, a man 
more sooner shall come to the certainty and knowledge 
of the law. 

Lex plus laudatur quando ratione probatur. 



[finis.] 



341 



STANFORD UNIVERSITY UBRARY 



"o avoid fine, this book should be returned on 
- '''f^ore the date last stamped below