IF the King grant Land in Fee, and reserve nothing, Coo. 6. Whee­lers case. fo. 6. b. Coo. 9. Ant. Lowes case. 123. 7. E. 4.12. b. 44. E. 3.45. a. Co. 9. Ant. Lowes case 123. b. the Patentee shall hold by Knights service in Capite.

So if in his grant the King saies by expresse words, Abs (que) aliquo inde redendo, yet because all Land must be holden by some service, the best shall be intended for the King; therefore against the expresse words of the Patent, the Law will create a new Tenure by Knights Service In Capite.

So if the King gives Lands tenend. as freely as he holds the Crowne, yet the Grantee shall hold by Knights service in Capite, and in all these cases the Tenure shall be by such a part of a Knights Fee, as the value of the Land shall beare; what shall be said of a Knights Fee, see the end of this Title.

But if the Grant be Tenend. de nobis per [Page 2]servitium unius Rosae, Coo. 6. Whee­lers case 7. Rubiae, or the like, pro omnibus aliis servitiis, this is a Tenure by Soccage in Capite, because, if the King reserve any speciall rent, the Te­nure shall be such as he reserves.

If it be Tenendum de nobis ut de honore, Castrum vel Maner. de A. per servitium Militare, or, De honore Casiro vel Ma­ner. de A. per servitium unius Rosae, Rubiae, or by 2. s. or by Fealty, for all the servi­ces, these be meane Tenures of the King, in the first case common Knights service; in the second, common Soccage, because the Tenure is not immediatly from the person of the King.

But yet there are certain Honours so anciently annexed to the Crown, 33. H. 6. Br. Tenur 94. Inst. fo. 77. a. (viz.) Barkinsteed, Newland, Rawleighe, The Abbey of Marle, &c. That a Tenure of the King, as of any of these, makes a Te­nure in Capite, either in Knights service, or Soccage, Stamf. pre. Rs. according to the words of the Tenure; but yet this is improperly a Tenure in Capite, for he which holds of the King, as of any of these Honours, may alien without licence of the King, 44. E. 3.45. which he cannot doe which holds in Ca­pite of the King, as of his person.

If the King grant Lands Tenend. de no­bis per servitia debita, 44. E. 3.45. This shall be in Ca­pite by Knights service, because where the words be uncertaine, the best shall be in­tended for the King.

If the King have Lands in his hands, holden by a common person immediatly as aforesaid.

For Treason all Tenures, aswell of the King as others, are thereby extinguished, Co. 6. p. Sir John Mollins case 6. but if the King grant the same Land to another Tenend. de capital. Domino per ser­vitia debita, the Tenure is restored, and the Land holden of the Lord of whom it was holden before the Treason, and not of the King immediatly; Co. 9. p. Bew­leyes case 131. yet if he grant it, Tenend. de nobis heredibus & successori­bus nostris, & al. capital. dominis feodi illi­us per servitia debita, It shall not make an immediate Tenure from the King, but the immediate Tenure shall be of the Lord of whom the Land was holden be­fore; and if he grant it Tenend. de nobis & by new services, & faciend alias dominis servitiad bita, the meane Tenure shall be revived, without any regard of the prio­rity of the words of the Patent, reserving new services. And this in favour of re­storing [Page 4]an ancient Tenure, but it is other­wise in the Creation of a new Tenure by the Kings grant, without any respect to an ancient.

And in this last case, Stam. praerog. Rs. cap. 12. and also where the King purchaseth land holden of a sub­ject (in which case also all Tenures are ex­tinct) it hath alwayes been used upon a grant thereof made by the King to re­store the ancient Tenure of the Sub­iect, and if a grant had beene made o­therwise, hee of whom the lands were holden before, had his remedy by petiti­on to the King.

If the King purchase a Mannor, of which I. S. holds, hee shall hold as hee held before, and shall not sue Li­very, nor pay Primer seisin, nor hold in Capite.

To hold of the King by graund Ser­geancy, is Knights service in Capite; by petty Sergeancy, is Soccage in Ca­pite; whereof more in the following Title.

To hold of the King by Castle-guard, Lit. 34. b. Coo. 2 p. Cromwels case. 81. Lit. 266. is Knights service in Capite, but to hold by certaine Rent for Castle-guard, is but Soccage; But by Fitz Harberts natura [Page 5]brevium a Tenure of the King, Coo. 4. Luttr. case. 88. b. F. N. B. 256. a. Stam. praerog. 29. b. as of an ancient Honour by certaine rent for the keeping of Dover C stle, is taken to bee Knights service in Capite; but this seemes no Law.

Note that there must of necessity bee a Tenure of all Lands in the hands of Sub­iects, Coo. 9. p. Ant. Lowes case. 123. wherefore if the King grants or re­leases the service of his Tenant by Knights service, &c. to his Tenant and his heires, this cannot extinguish the Tenure wholly, but that fealty shall re­maine for necessity of Tenure; 26. H. 8.9. As in graunts, so in offices found after the death of the Kings Tenant to entitle the King or Lord of a Wardship, the words of the office directs what the Te­nure is, and therefore before the Sta­tute of 2. E. 6. cap. 8. if an office had beene found, that one held of the King generally, Sed per quae servitia Iurat. ignorant, this was taken for a Tenure by Knights service in Capite, because where the Tenure is uncertaine, the best shall be intended for the King.

And for the same reason an office find­ing De quo tenetur Iurator ignorant, this [Page 6]was taken for Tenure by Knights service in Capite, because where the Tenure is uncertaine, the best shall be intended for the King.

And for the same reason an office find­ing de quo tenetur jurat Ignorant. was ta­ken for the immediate Tenure of the King, and was sufficient to entitle the King to a Wardship, but by the said Sta­tute it is provided that in the first case, Stat. 1. Ed. 6.4. it shall not be holden for a Tenure in Ca­pite, and in the second place no immedi­ate Tenure of the King, but in such case a Melius inquirendum shall be awarded, howbeit, if upon the Melius inquirendum the same be so again uncertainly found, the best shall be intended for the King, (viz.) a Tenure in Capite by Knights service.

There are also Tenures by collusion, or estoppell, 7. E. 3.37. as when a man seised in Fee simple of Lands holden of a common person, hath sued a Livery, or Ouster le main of the same out of the Kings hands, or hath confessed by any matter of Re­cord a Tenure in chiefe of the King, this makes the Land holden of the King, of whemsoever it was holden before, and [Page 7]the King shall have wardship by reason of this Tenure.

Tenant in tayle generall holds of his Donor in such Knights service as hee holds Ouster of his Lord, 38. E. 3.7. 2. Ed. 4.5. 1. Ed. 2. de mili­tibus, Nevell. yea although upon the gift made the Land be given Tenend. de capital. dom. yet such a cause shall not alter the Tenure, but that hee shall still hold of his Donor.

Twelve plough Land, being every one of them anciently of the yearely va­lue of five nobles, make a Knights Fee, worth per ann. 20. l. which was anciently accompted sufficient maintenance for a Knight, thirteene Knights Fees, and a third part being 400. markes yearely va­lue, made a Barony, Re. 9.124. Ant. Lowes case. Inst. fo. 69. a.b. twenty Knights Fee of 400. l. yearely value, made an Earle­dome, and according to the same propor­tion 800. markes a Marquesdome, and 800. l. a Dukedome, the fourth part of which is paid the King for a reliefe, viz. of a Knights fee, 5. l. and so of the rest.

To hold of the King in Fee Farme, Mag. Cart. cap. 27. 20. E. le case. Inhabitant de Sassron Walden. is a Soccage Tenure, and yet this Tenure shall yeeld no reliefe, because the Law intends that the Farme, or Rent, that hee payes for the Land, is the full value of [Page 8]the land, and recompences all other pro­fits of the Tenure, and this is the com­mon experience of the Exchequer.

Tenures for the most part are either Knights service, or Soccage; Knights service is either in Capite of the King, or in common Knights service; in Capite, is of two kindes, one more speciall, viz. a grand Sergeancy, the other the gene­rall service; Knights service is either of the King, as of some Honour, Castle, or Mannor, or Knights service of common persons: So Soccage is either in Capite, or common Soccage, in Capite more speciall, as petty Sergeancy, or more ge­nerall, the common Soccage is either of the King, as of some Honour, Castle, or Mannor, which are species of ancient Demesne and Burgage of the King, or Soccage of a common person.

There are also other Tenures, as Frankallmoigne, Tenure by Divine Ser­vice, base Tenure, as Coppy-holder, Te­nure by villenage, of which I need not speake for the purpose in hand.

Of Knights service and Soccage Te­nure of a common person: I may like­wise spare the description; but of either [Page 9]of these much is said in the Title of Wards collusion, and those that fol­low.

IS properly where lands are holden of the person of the King and of his Crowne, as of a seigniory it selfe in grosse, 30. H. 8. Dyer 44. a. and chiefe above all other seigniories; Improperly of him as of some ancient Honour annexed to the Crowne, as Bar­kingsteed, Newland, Rawleigh, Stat. praerog. Rs. fo. 29. b. the Ab­bey of Marle, &c. And this description is understood as well of Knights service, as Soccage in Capite.

Knights service in Capite is denoted ei­ther by expresse words, as Tenend. de no­bis per servitium militare, or improperly, by construction of Law upon uncertaine words, as in the cases supra Title, Te­nures.

The more speciall Knights service, is grand Sergeancy, Lit. 34. b. which is denoted by some particular service to be done in his own person to the King, then the other requireth, as to carry the Kings Banner, Launce, &c. to lead his Hoast, to be his Marshall, to carry his Sword before him at his Coronation, to be his Sewer, Car­ver, or Butler at his Coronation, to bee one of the Chamberlaines of his Exche­quer, and divers other the like.

To Knights service in Capite, 2.24. Ed. 3.47. C. Stam. prero. Rs. fo. 7. ib. 6. L. 2. ib. 12.6.5. Plo. Com. Fo­gags. 17. 2. 13. H. 4.6. b. 22. H. 8. 5. E. 4.12. Stam. prerog. Rs. fo. 8. are inci­dent not only Ward, Marriage, Primer seisin, Reliefe, Livery, and Licence to alien, but also Prerogative to Wardships, and Primer seisin of all other Lands hold­en of common persons in Knights ser­vice, or in Soccage, and of all other ser­vices, whereof the Tenant in Capite dyed sole seised in Fee, and Fee taile in his owne Right, or in the Right of his wife in Possession, Reversion, Remainder, or in Right which descended to the Kings Ward, and not to any other customary heire, 12. Ed. 4.18. as the younger sons in Gavell­kindes, &c. Except the Lands holden of the Archbishop of Canterbury, the Bishop of Duresme between Tyne and Tese, and [Page 11]the Lords of the Marches, where the Kings writs runneth not, which they had in Anno 17. Ed. 2. 17. Ed. 2. Meues case. 133. Sta. 17. Ed. 2. Stam. pre. Rs. 7. b. 6. H. 2. Gard. 105. But the body is not wherefore the King shall have that against all men, but the King shall have no Pre­rogative in the Lands of the second Ward, which he hath by reason of Ward, as where one that held of the Kings Ward, was never seised of those Lands, nor of the service they were holden by.

And the meane Lords, whose Fees the King hath in Ward by his Prerogative, shall have their Rents by which such Lands were holden during the Minority payed to them, by the Kings Officers ap­pointed to receive the profits of the Land holden of the other Lord, upon request and tender of an Acquittance to the said Officers.

As by this Tenure the King hath Pre­rogative in case of Ward, so also he hath the like Prerogative of Primer seisin, which see after, Title Seisin.

THE Tenure is described in the last Title; Coo. 6. p. Wheelers case 7. the service that this Tenure is knowne by, is generally where the Te­nant holds by certaine services, not by knights service, for all manner of servi­ces, as Tenend. de nobis per fidelitatem tan­tum, or by homage and Fealty, or by Fe­alty and rent, or by homage, fealty and rent, or by a red Rose, or the like, pro om­nibus servitiis, and although in the last example nothing be said of Fealty, Lit. fo. 36. a. yet it is implyed by the Law, as incident to all manner of services,; More speciall soc­cage in Capite is petty Sergeancy, which is where a man is bound by his Tenure to render yearely to the King a Bow, a Sword, Gauntlet, or such like small mat­ter touching the War.

To Soccage in Capite are incident, Stam. praer. Rs. cap. 3. fo. 13. b. Re­liefe, Primer seisin, and Livery, and li­cence to alien; whereof in these small Titles.

IT is where land is holden of the King, as of some Honour, Castle, or Man­nor, per servitium militar. expresly, or implyedly by construction of Law upon ambiguous words.

This Tenure gives the King Ward, Marriage, Reliefe, Livery, but no Pri­mer seisin, nor licence to alien, nor hath the King hereby any prerogative to have other lands holden by the Kings Tenant of common persons into Wardship. But yet the King shall by his prerogative have the Mariage of such Ward of whom soever he holdeth besides, Stam. praer. Rs. fo. 10. 24. Ed. 3.31.6.5. though his Tenant were enfeoffed of the lands hold­en of his Maiesty after he was enfeoffed of his lands holden of others, without re­spect of the priority of feoffement, which alwayes prevailes amongst meane Lords; whereof more fully afterwards, in Title Marriage.

IS where Land is holden of the King, as of some Honour, Castle, or Mannor, by the services mentioned supra Title Soccage in Capite.

This Tenure yeelds a Reliefe, but no Wardship to the King, Marriage, Pri­mer seisin, &c.

THe Tenure by Knights service, had his originall Creation for the de­fence of the Kingdome, Lit. fo. 20. binding the Te­nant to serve the King, or other Lord to whom he is Tenant in the Kings warres for a certain time, to the quantity of his [Page 15]Terme, and therefore that the Common­wealth should not be unserved, the Law gives the King, Lit. fo. 22. or the other Lord custo­dy of the heire Male of such Tcnant, be­ing under age of one and twenty yeares at the death of his Ancestor, together with the profits of his Land, till the same age.

And of the heire Female, Lit. fo. 22. under the age of fourteen yeares at the death of her Ancestor, and unmarryed, together with the profits of her Land, untill her age of sixteen, to the end that he may provide himself of a man able to doe him Knights service: But if the heire Female be mar­ryed at the death of her Ancestor, then her Land only shall be in Ward but till her age of fourteen yeares, because those two yeares after fourteen, are given only to make tender of her marriage, which is already done: And if at her Ancestors death she be fourteen yeares old, Lit. fo. 22. Bro. Gard. 86. Ac. 35. H. 6.52. then there shall be no Wardship, neither of her body nor Lands, because at that age shee may have a husband able to doe Knights service, and that is her full age to be out of the Ward by the Common Law, 35. H. 6.54. and the other two yeares are given in favour of the Lord.

But when lands that are holden of the king or other Lord, descend to an heire male or female in the life of the father, from some other ancestor, as from the grandfather &c. of the mothers side, the mother being dead, Lit. fo. 25. Coo. 3. Ratch. case. 38. Coo. 6. Re. Ambrosia: Gorges case. 22.22.6. re. N. B 143. o. Lit. fo. 114. though the Lord shall have the Wardship of the land, yet the law of nature gives the father the Wardship of the body of such heire, with this difference, in case of an heire female, that he shall have the Wardship of her body till he have a son, and then the Lord shall have it, because by the birth of the son, he is become heire apparent, and this priviledge is given to the Father, but for his heire apparent, which now she is not, in those cases the grandfather shall not have the Wardship of his grand­childe if his father be dead, touching the kings prerogative, to have Wardships of his lands, that his Tenant by knights service in Capite held of another Lord: See before, Title Tenure in Capite by knights service, and more in Stamf. ex­position of the kings prerogative, cap. 1.

So the essence of Wardships is requi­site, that the Tenant die sole seised of lands in possession, Remainder, or Re­version, [Page 17]or in right holden in knights service, and a descent to their heire, for if men be joyntly seised in fee, or in fee tayle, and one of them die, his heire un­der age, he shall not be in Ward, because the Lord hath his Tenant alive, viz. the Survivor who hath the whole, and by Title of Survivorship.

And therefore if I. D. for money by him disbursed, Coo. Knights case. 163. purchase lands to himselfe and others, and their heires, this is holden collusion within the Statute, 34. H. 8. ca. 5. to avoid Wardship which may accrewe after the death of I. D. because he was ne­ver sole seised, Coo. 9. Flopirs case. 126. a. b. and so no title of Ward­ship could be after his death, because of the Survivor. Coo. 9. Flopirs case. 126. a. b. But where to be joyntly seised of lands holden of the king in pos­session, and not in remainder to them and the heires of the body of one of them, and he that hath the inheritance dyeth, his heire deins age, the king shall have the Wardship and Marriage of such heire notwithstanding the Survivorship of the other Tenant: And this is provided by the other Statute of 32. H. 8.17. in case of the king only, and therefore in such case, if the lands were holden of a com­mon [Page 18]person, there would be no wardship during all the life of the Survivor.

Ward, where the Tenant dyeth seised of land in the very possession thereof, by taking the profits, &c. This admits no difficulty, and therefore in vaine to mul­tiply cases thereof.

He in the Remainder upon an estate for life, Coo. 2. Bing­hams. 92. b. 33. H. 6.5. 24. Ed. 3.33. B. Na. Br. 142. b Coo. 2. Bing­hams case. 92. b. Coo. 9. Quicks case. 129. b. Vet. Na. Br. Bro. Gard. 113. 4. H. 6.20. 20. Eliz. Dy. 362. a. is not Tenant to the Lord untill the Remainder happen in possession, and therefore if a man maketh a lease for life, the Remainder to another in fee, and he in the Remainder dies, his heire being within age, here during the life of the Te­nant for life, the heire of him in the Re­mainder, shall not be in ward, because the impediment is not removed; but in that case, if after the discent of the Remainder and before the death of the Tenant for life, the Lord grant away his Seigniory, and after the Tenant for life dies, the heire of him in Remainder being under age, neither the grantor nor the grantee of the Seigniory shall have him in ward.

If the Tenant make a gift in tayle, the Remainder over in fee to another, 4. H. 6.10. here the Tenant in tayle holds immediately of the chiefe Lord, and he die, his heire un­der [Page 19]age, he shall be in ward to the chiefe Lord, and so shall the heire of him in re­mainder in fee, if the Tenant in tayle die without issue during the minority of the heire of him in the remainder, because the impediment is removed by death.

But if an estate tayle be made of lands holden of a common person, the remain­der in fee to the King, the Tenant in taile die, his issue under age, he shall be ward to no body, because the Tenure and ser­vices are extinct by the fee simple, being in the King who can hold of none, And the estate of Tenant in tayle, and the re­mainder over maketh both but one estate.

If the Tenant make a lease for life, Vid. Na. Br. B. Gard. 113. or a gift in tayle, leaving the reversion in him­selfe, he remaines Tenant still to his Lord, and his heires shall be in Ward for the re­version, because his estate never moved at all out of him, and he is immediate Te­nant; so note the diversity betweene a Remainder and a Reversion: So if the Tenant infeoffes A. who gives the land back againe in tayle to the tenant, or to the son of the tenant, Tenend. de Capital. Dom. yet the Tenant in tayle should hold [Page 20]of his Donor, and he of his Lord Para­mount, and the heire of the Donor shall be in Ward to his Lord, for the reversion, and the heire of the tenant in tayle shall be in Ward to his Donor for the pos­session.

And for the same reason, Coo. 2. Bing­hams Case. 92. if the Tenant in tayle be with the reversion expectant to himselfe and his heires of lands holden by Knights service, of a common person, and he dies, his heire within age, he shall be in Ward for his body, but not for his lands, 24. Ed. 3.33. because betweene the estate tayle, and the reversion, stand two distinct e­states in the tenant, and the reversion on­ly is holden immediatly from the Lord, and not the estate tayle in possession; but if the Case had been Tenant in tayle, with the remainder to an estranger in fee, there the heire of the tenant in tayle under age shall be in Ward to the Lord of whom the land is holden, for body and land, be­cause the particular estate and the remain­der make but one estate in Law, and all is holden of the Lord immediatly.

But note, that in the Kings Case, if his Tenant make a gift in tayle, and grant the reversion, over, or keepes the rever­sion [Page 21]expectant to himselfe in fee, in these Cases, and the like, by some bookes the King may elect his tenant, and there shall be a Wardship of the heire of the Tenant in tayle, or of him in the reversion, as his Majesty shall elect, Stat. 34. H. 8. cap. 5. and this election shall binde him, so that afterwards he cannot resort to a new choice, but other bookes are contrary, viz. that he in the reversion is only the Kings Tenant, and he hath no election but by common experience of the Court of Wards, they use to choose the Wardship of the best estate for the King, and for the third part to bee in Ward upon the Stat. of 32. & 34. H. 8. of Wills, the words of 34. H. 8. are, that the King shall have as well lands in taile, as in fee simple.

If the kings tenant, F. N. B. 142. d. 14. H. 8.16. or the tenant of a common person be disseised of his land, and die, so that a right only descend to the heire, yet the heires being within age, shall be in Ward for this right, Coo. 3. Butler, & Bakers case. 35. a. because after the disseisin, the disseisee remaines still tenant to the Lord in right of Law.

So if tenant in taile make a feoffement in fee, 48. Ed. 3.8. 15. Ed. 4.10. br. and thereby discontinue the taile, and then dies, his issue under age shall [Page 22]be in Ward to the Donor.

So where the heire under age recovers lands holden, &c. by a Br. de entrey sur disseisin, writ of Cosenage, for the action which descends he shall be in ward for this land so recovered, because of the right descended to him. Mes auterment est lou il recover, by a writ which doth not descend as by a writ, De dum non fuit compos mentis.

Yet where a possibility only descends, as if a man covenant with the father to stand seised to the use of the father and his heires upon a contingent, the father dies, his heire under age, the contingent happens, It was held by the Court of Wards, that the heire was in by descent, and that there should be a wardship, and yet nothing descended but by a possibili­ty: And in every wardship there must be a descent, Re. 10.83. a. Leonard Low. Case. except it be in some cases, upon the Statute de 32. & 34. H. 8. quem vide in le prochein. Title.

Where, Re. 3.62. a. Lincolne Col­ledge Case. if the issue in tayle under age enters into the joynture of his mother by force of the Stat. 11. H. 7. c. 20. for a for­feiture by her alienation thereof he shall not be in ward, because he hath the land [Page 23]in manner of a purchase, and not by descent.

So if the father leaseth to his son and heire for life, and dyeth, 9. Ed. 3.4.15. Co. 6. Sir Geo: Cursons ca. 76. and the fee de­scends to the son under age, so that the freehold is mergd in the inheritance, yet he shall not be in ward for the land, be­cause he had the possession by purchase, Si soit bona fide valet, ut &c.

And generally in all other cases where the heire hath the land by purchase with­out collusion, is where he buyes the land of his father (bona fide) and for valuable consideration, or in the like cases; Coo. 10. Re. Leon. Lowes case. 83. b. t. Inst. 78. [...]. for if it be by collusion, then there will bee a wardship by the Stat. of Marleb. and 34. H. 8. cap. 5. though the heire had not the land by descent, whereof after see in the Title Collusion.

If the King Knight the heire apparent of his owne Tenant, Plo. Com. fo. 268. Ratclifts Case. Coo. 6. Sir Dru: Druries Case. 74. Coo. 8. Sir Hen. Constables Case. 171.2. or of the tenant of a common person under age, and in life of his Ancestor, hee shall not bee in ward though he be under age at the death of his Ancestor, neither for body nor land, but shall for all purposes bee reputed of full age, because the king by knighting him, hath adjudged him of full age, and able [Page 24]to doe knights service.

But if he knight him after his Ance­cestors death while he is in ward, Stat. Mag. Carta cap. 3. hee is thereby presently out of ward for his bo­dy, but for his land shall be in ward till his full age of one and twenty yeares, Quem vide apres en le Title Marriage, as also some other Cases, where the heire shall be out of wardship for his body, though his lands remaine still in ward.

WHereas the words of the Statute are, That every person having Lands, Tenements, or Hereditaments of an estate in fee simple, per Knights service in Capite of the King, or of any other Lord in common knights service, &c. May by his last Will in writing, by act executed in his life time, give, dispose, [Page 25]will, or assigne two parts thereof for ad­vancement of his wife, preferment of his children, or paying of his debts, &c. leaving to the King wardship and primer seisin, and to no other Lords wardship of so much of the same lands as shall amount to the cleare yearely value of a third part thereof; It is to be considered that these Statutes give to the tenant power to de­vise his lands by his last will in escript, which he could not doe before these Sta­tutes, which was some prejudice to the Lords of these lands for their wardships of the two parts so devised: Coo. 6. Re. Sir Geo: Cursons Case. 76. a. So then they doe give benefit to the King and other Lords, to have wardships, &c. In cases when they shall have had none before, though the Ancestor neither dyed seised, nor any land descended to his heire, which are contrary to the rules of the Common Law, which see before in the last Title.

And where the father conveyes his land holden, &c. by act executed in his life time for advancement of his wife, preferment of his children, or payment of his debts, and dies, his heire under age, here is neither dying seised, nor descent; [Page 26]and yet the Statutes gives a third part of these lands to be in ward during the mi­nority of his heire, notwithstanding it shall at his full age goe according to his fathers disposition, because the convey­ance was only avoided during the mino­rity for benefit of Wards by the Statutes, Co. Re. 8. Dig­bies Ca. 165. b. and not utterly void, but these Statutes doe in no case give wardship, where there is no heire, as where the father after such conveyance is attainted of Treason, and dyed his issue, being under age, here the third part shall not be in ward by the Sta­tute, Re. 10.85. a. t. Leon. Lowes Case. because the Ancestor dies without heire, in regard of a corruption of his blood.

And note, where the Ancestor devi­seth by his last will land holden, &c. to his wife, Dyer 150. b. St. 34. H. 8. ca. 5. Coo. 8. Sir Ri­chard Pexals Case. 85. a. yonger children, &c. the will is not avoided only, during the minority for the benefit of wardships, as in the said Cases of acts executed, but the will is ut­terly void for a third part by those Sta­tutes, and therefore he hath the third part by course of descent by the Common Law, and the will is good only for the other two parts, whereof there shall bee no wardship but only for the third part [Page 27]descended, which the heire also shall have a son plein age, notwithstanding the will, Coo. 3. But. & Bak. Case. 35. for if a man devise a rent out of all the lands holden, &c. this is void to charge a third part of the lands, notwithstanding the land descends, charge of the rent.

But where the land holden, &c. are de­viseable per custome in London, and some other townes, the [...]e all may be de­vised, and the will is not void for a third part, because the land was deviseable be­fore the Statutes which are in the affirma­tive, and therefore doe not destroy the custome, but the case: But the saying of these Statutes doe avoid the will pro tem­pore, Coo. Re. 3.35. a. b. But. & Ba­kers Case. and give a third part to the King for a wardship during the minority, &c. And yet the heire is barred by custome to have the third part at his full age, as before in the third case of disposition by act execu­ted he is barred by the conveyance.

It is seen who shall be said to be a per­son having of lands, tenements, or here­ditaments holden within the meaning of these Statutes, and that will best appeare by cases of difficulty, for of common persons having of lands, &c. I purpose not to speake, plaine matters need no [Page 28]demonstration, a disseised of land in ca­pite which is put out of possession, and hath only a right of lands, Coo. 3. But. & Bak. Case. 35. a. holdeth of a common person Soccage lands, he is a person having of lands within these Sta­tutes, because in the judgement of the Law, he hath the land to many purposes, and therefore devise, &c. by him of his other lands holden in Soccage, is good only for two parts, and his heire shall bee in ward, &c. for the third part.

If a man have only a fruitlesse reversi­on without rent expectant upon an estate tayle, Coo. 11. Re. Henry Harpers Case. 24. Coo. 10. Leon. Lowes Ca. 80. or for life of lands holden, &c. and devise but two parts of his other lands holden in Soccage, a third part shall bee saved for wardships and primer seisin, &c. By these Statutes.

But if the first grant away this reversi­on, Coo. Leonard Lowes Ca. 81. then he may devise all his Soccage land, because at the time of the devise, hee is no person having, &c.

But if he that hath a remainder, &c. ex­pectant upon an estate taile, or a lease for life of lands holden, &c. deviseth all his Soccage lands, and dies before his remainder shall fall into possession, this devise of all is good, because he is not a [Page 29]person having of such estate in lands hol­den, &c. as by the common Law yeeldeth wardship, and therefore out of the pur­pose of the Statute, and so note the diver­sitie betweene a reversion and a remain­der upon the Reason of the Cases thereof before, Title Marier,

Inheritances which of their nature are not of any certaine yearely value, 5. H. 7.36. Coo. 10 Leon. Lowes Case. 82. a. as a Franchise to have felons goods, Court Leetes, waifes, estraies, advowsons, &c. holden of the king, &c. shall restraine the owner thereof to devise a third part of his Soccage land, because he that hath these, is a person having hereditaments within the meaning of these sttatutes.

But where a man hath Soccage land, Cars Case. 29. Eliz. cited in Coo. 3. But. & Bak. Case. 30. b. a. and hath also a rent hat was holden by knights service in Capite extinguist in his Tenancy, he may devise or dispose of it by act executed, all his Soccage lands, and there shall be no wardship of a tierce part, because that the rent being extinct, he was not a person having thereof at the making of his last will, &c.

So where the husband and the wife be both Jointenants of an estate in Fee after coverture, Coo. ibid. Stat. 34. H. 8. the husband shall not be said a [Page 30]person having of this land, Coo. 8. Re. Wights. fo. 163. b. because hee a­lone is not owner of this land, and so ge­nerally, he that shall be said a person, ha­ving of land holden, &c. to be within these statutes, must be sole seised, and not joyntly with another.

Thirdly, as these words are in these statutes having lands, doe import sole ownership of the land holden, Coo. 10. Leon. Low. Ca. 82. b. so they doe also import and appoint the time of such ownership to be the same instance when hee makes disposition or devise of these lands, so that the time of having, holding and disposing ought to con­curre, where if a man convey to his yon­ger, or to his wife, &c. his lands holden, &c. in Fee simple, Coo. 11. Re. Harpers Case. 24. a. either absolutely, or with power of Revocation, having a third part, which is Soccage land to discend, and after purchase more land holden in Soccage, he may devise all his new pur­chased lands, because at the making of his will, he had no land holden, &c.

So if a man have Soccage land, and convey it as Joynture to his wife, &c. and afterwards purchased lands holden, Coo. 10. Leon. Low. Ca. 83. b. &c. and devise two parts thereof and dieth, his heire under age, no part of the Soc­cage [Page 31]land shall be taken to make a third part of the whole for watdship, &c. be­cause when he made the conveyance of the Soccage lands he had no lands hol­den, and therefore the conveyance good for the whole.

But if a man having soccage land of 20. li. yearely value, deviseth it to his yonger children, or to a stranger, and af­terwards purchaseth land holden of the yearely value of 20. li. and dieth, the de­vise is not good for all the soccage land, because the VVill tooke not effect before his death, and before the land holden, &c. See now the difference betweene the last Case of conveyance by Act executed, and this of devise.

But if a man having land holden in Fee, and soccage land, Coo. 3. But. & Bak. Case. deviseth this soccage land, and after hee aliens his his land (bona fide) this divise is good for all the soccage land, Coo. 10. Re. Leon. Lowes Case. 84. a. t. because when the VVill tooke effect, he had no land holden to cause a wardship or Primer seisin.

Fourthly, it is to be considered, who shall be said to be a wife or a child to be within these Statutes to be advanced, and then what estate shall be said an advance­ment of such wife or children.

A disposition for the advancement that a man intend to marry, Coo. 8. Virgill Parkers Case. 173. b. though at the time she be no wife, if after he marry her, she is made a wife within the intent of these Sta­tutes, as if at the disposition made she had had him.

If by Act a man disposeth of all his lands holden to his bastard, 14. El. Dyer 313. b. Coo. 10. Leon. Lowes Case. 83. a. t. Coo. 6. Report, Sir George Cursons Case. 77. a. or to one of his collaterall blood, not being his heire apparent, or to his grandchild in the life of the father, these Statutes give no wardship nor Primer seisin of a third part, no more than if the deposition had been to a meere stranger, bacause these are not children in judgement of law, and then the convey­ance remaines as it was, at the common Law, good to all, because the Statutes provide for wardships, or primer seisin, but where the conveyance is made to a childe.

But if after the fathers death, the grand­father conveieth the land to the use of any of his children, there shall be wardship, &c. for a third part, because by the fathers death the care of the children is cast upon the grandfather by the law, as of his owne children, and therefore they are to be ta­ken children within the statute.

Then to see what shall be said an ad­vancement of such wife and children; if the land conveighed to the wife and chil­dren by the said father or grandfather, be levied to her & her husband to her use, of the wifes lands, therefore there shall be no third part in ward, Coo. 9. Floyers Case. 126. because this conveyance is no advantage to her in regard the land was originally hers, and moved not from her husband, & therfore out of the statute.

So if a man convey land to his wife for life, the remainder for one of his sons, the remainder is no advancement to the sonne, to give wardship either for the bo­dy or third part of the land by these sta­tutes, Ibid. Coo. 2. Binghams case. 94. because the mother is the Kings te­nant during her life by advancement, and such a remainder which may give ward­ship of body and land at the Common Law, is onely intended, by the word Re­mainder in these Statutes, which this Re­mainder doth not; the reason is about the title of the ward.

But a remainder which is in part of a reversion, Coo. 10. Leon. Lowes ca. 81. a. as if a man makes a lease for life or yeares, and after grants the rever­sion for life or in taile le remainder in fee to his sonne, and after the grant for life, or [Page 34]Donee in tayle dies without issue, it shall be said advancement within these Sta­tutes, and shall give cause of wardship of the body during the life of the tenant for life, because this remainder by common Law, Coo. 9. Holts Case. 132. b. t. shall draw ward and marriage; as also a revorsion doth in such case give wardship, because he in reversion is im­mediate tenant to the Lord, and not te­nant in tayle, or for life.

If the son and heire, or any other son purchase land of his father (bona fide) for money, &c. this is no preferment for the childe within these meaning of these Sta­tutes, and therefore there shall bee no third part of these lands taken for ward­ship, or primer seisin, because it was land purchased by the childe, and not given by the father to prefer him.

This Statute gives authority disjuncti­ve to make a disposition either by act ex­ecuted, or by will of two parts of land holden, &c. And thereupon if a man by act executed in his life time, dispose of two parts for the advancement of his wife, Coo. 3. But. & Bakers Case. and preferment of his children, and payment of his debts, he cannot devise the third part thereof, because he had [Page 35]executed his authority before, but if hee had aliened two parts to a stranger (bona fide) then he might also devise two parts of the third part remaining, because his alienation to a stranger is out of these Statutes.

If a man alien two parts for advance­ment of his wife, Re. 6.18. Sir Edw. Cleres Case. &c. he may also make a feoffement of the third part to a stranger, or he may make a feoffement of the third part to the use of his last will, and by his will may declare the use of that feoffe­ment to a stranger.

But here note that the land passeth by feoffement, and not by will, and that the will served but as a limitation of the use upon the feoffement, and yet in that case, a third part of the two parts first disposed of shall be in ward.

If a man by act executed conveyes two parts for life in taile for advance­ment of his wife, 35. El. Clem. Howards Case cited in Coo. 10. Re. Leon. Lowes Case. 81. a. &c. he may also devise the reversion of the same two parts, be­cause the Statute gives him full power over the two parts, to dispose it as he will, by will or otherwise.

It is to be observed, that these Statutes are to be expounded to save a third part [Page 36]for wardship and primer seisin, when the advancement continues in the advanced without alteration either by descent, or alienation, and not otherwise.

Wherefore, Coo. 2. Bing­hams Case. 93. b. 94. a. Coo. 9. Holts Case. 132. a. if the son advanced aliens (bona fide) or dies, and the land descends to his heire in the life of the father that gave the land, there shall be no wardship of a third part by these Statutes; the same law is, when the land is conveyed for the advancement of the wife, or pay­ment of the debts.

Whereas these Statutes serve to be in ward, Coo. Re. 10. Leon. Lowes Case. 84. a. m. &c. lands to the full yearely va­lue of a third part of the whole, it is to be noted that the same value shall be ac­counted as the lands be of value at the Ancestors death.

The thing of a casuall and uncertaine value may not be left for the third part, Coo. Leon. Lowes Case. 81. a. t. R. 3.32. b. But. & Bak. Case. as a franchise to have felons goods, and of fugitives, and out of fines, outlawes fines, amerciaments, which have not been accustomably let unto farme for yearely rent, but if they have been so let, then they may be left for the third part.

The King or the Lord ought to have his third part immediatly after the death [Page 37]of the tenant, But. & Bakers Case. 34. and shall not expect upon any uncertainty, wherefore if a man sei­sed of three acres holden in Capite, &c. leaseth one acre for life, and after deviseth the other two acres, and dyes, and after the tenant for life dies, yet the devise is void for a third part of the two parts, be­cause the third part did not descend im­mediately to the heire.

In construction of these Statutes, 35. H. 8. Bro. Testaments 29. an equality hath been used, so that for the le­vying and making up of a third part sa­ved by these Statutes, parties alike in­teressed shall equally and alike be respe­cted, wherefore if a man have three seve­rall Mannors holden of three severall Lords by Knights service, Coo. 8. Virgill Parkers Case. 173. b. every Mannor being of equall value, he cannot devise two Mannors, and leave the third to de­scend according to the generality of the words of these Statutes, for then he should prejudice the other two Lords of their wardships, but he must devise two parts of every Mannor, and leave to descend a third part of every Mannor, to make a wardship to every Lord.

So if a man seised of land holden, Coo. Virgill Parker. 173. b. &c. disposeth before mariage one moity for a [Page 38]joynture of his wife that shall be, and af­ter marriage disposeth the other for pay­ment of his debts and legacies, and the third part for the King, as other Lords shall be equally taken out of both halfes, and not out of the halfe last disposed.

So if the other deviseth the land, Coo. 9.133. b. Mat. Menes Case. to his eldest son one part, and so to foure other sons like parts, whereof one part only is holden, &c. the third of the whole shall be made up equally out of every severall third part of a younger brother a like quantity, if the King or the Lord hath once the benefit of the Statutes against one son, the Statutes are satisfied, and he can have no further benefit therof against another-son, as if the father convey land holden, &c. to one son in tayle the re­mainder over to another of his sons in tayle or in fee, Coo. 9. Tho. Holts Case. 132. a. and after the fathers death the King or the Lord hath wardship and primer seisin of a third part, and then the first son dyeth without issue, the King or Lord shall not have the benefit of the Sta­tute against the son in the remainder, for the Statutes doe extend to the first son advanced only, if he survive the father, and then be owner of the land.

Wherefore, if a man have lands hold­en, 20. El. Cal­throps Case, cited in Coo. 3. Re. But. & Bak. Ca. 31. a b &c. of the yearely value of 20. li. and Soccage lands of 10. li. yearely va­lue, he may devise all the lands holden, &c. and leave the Soccage land only to descend for wardship and primer seisin, and the Statutes are satisfied, and the heire shall sue Livery for one of the acres holden, &c. though no land be descend­ed to him, if the land be holden of the King by Knights service in Capite.

So if a man have land only holden, Coo. 10. Leon. Lowes Case 84. b. &c. And conveyeth the whole for advance­ment of his wife, preferment of his chil­dren, and afterwards purchase so much land in Soccage as amounteth to the third part of the land holden, and leaves this to descend, this Statute is satisfied, and the conveyance is good for the whole land holden, &c.

And note, Coo. 10 Leon. Lowes Ca. 84. that to make wardship upon these Statutes, the estate of the Lord holden, ought to continue after the Te­nants death; And therefore if a man have an estate tayle only of land holden, and hath Soccage, and dyeth without issue, so that the estate tayle is spent, the devise is good for all the Soccage land, so if the [Page 40]land holden be defeated by condition af­ter the Tenants death.

And so the estate of the Tenure ought to continue after the death of the Tenant; Coo. 3. But. & Bakers Case. 34. b. wherefore if the King gives land to one, and his heires to hold during the life of the Patentee by Knights service in Capi­te, and after his death in Soccage, or E converso, here shall be no wardship or primer seisin, neither by the common law, nor by these Statutes, because in the first case the Tenure continues not after the Tenants death, and in the second case, the Tenure to make a wardship commenceth in the son only.

IF Tenant enfeoffe his son and heire ap­parent, St. Marle. b. ca. 6. Plo. Com. or his collaterall heire appa­rent, to make him have an estate in land as a purchasor, and so to beguile the Lord of his wardship, because the heire comes not to the land by descent; this is collusion apparent, and manisest against [Page 41]which by the Statute of Marleb. made Anno 32. H. 3. It was provided that the Lord shall notwithstanding have the wardship of his heire.

There is also collusion which is not so manifest, as when the Tenant enfeoffes others upon collusion between him and them had for the benefit of the heire, and to prevent his wardship, and this collusion is averable, against which also this Sta­tute of Marleb. provideth.

To instance in particular cases what shall be said, collusion within these Sta­tutes of Marleb. and what is not, is need­lesse, because the cases thereof are too many for this Treatise, as for that by the said Statute of 34. H. 8. cap. 5. a more ample provision is made against Collu­sion, then was by that former.

Wherefore before the statute of 34. Inst. fo. 78. a. H. 8. if the father had stept but a little fur­ther, and had made a Feoffement to his sonne and heire, and to a stranger, al­though the inheritance were limited to the heires of his heire, and that the stran­ger had but an estate for life.

Or if the Father had made but an e­state for life or taile to his sonne and [Page 42]heire, 27. H. 8.10. and limited the remainder, and granted the Reversion to another, or had left the Reversion in himselfe, or if the father had enfeoffed a stranger for the ad­vancement of his younger sonnes or of his daughter, or for the paiment of his debts, and after doe enfeoffe his heire, in all these cases the Lord had beene pre­vented of the wardship of his Tenants heire, and he not helped by the Statute of Marleb. because those conveyances were in judgement of the law no Collusion, neither apparent, nor averable within the intent and meaning of the said Statutes.

But now by these Statutes of 32. Coo. 6. Sir George Cur­sons case. 76. H. 8. in all these cases and the like, Collusion may be averred for a third part of the Land so conveyed, and the conveyance pro tempore avoided, Re. 8. Rep. Wignts case. 163. Inst 78. a. or the wardship, primer sesin, in case of land holden of a common person, and for wardship of primer sesin in case of land holden of the King for a third part of the land, but as these Statutes in many other cases gives remedy to the King and other Lords, where they had none before; so in other cases these Statutes give the Tenant be­nesit, where he had none before.

And therefore, where the King, Coo. 8. Wights case. 3. 164. b. Coo. 10. Leon. Lowes case. 82, 83. or the Lord by the Statute of Marleb. might take advantage by Collusion apparent, or where the Tenant conveyes the land to his sonne and heire under age, of an estate in fee simple, might have had the whole land so conveyed by fraud in ward, now by these Statutes, because they did enable him to convey the two parts for prefer­ment of his childe, the King shall have but a third part in such case, this Statute of 34. H. 8. cap. 5. concerning Collusions to this purpose, that if the Tenant being seised of an estate of inheritance doe by Act executed in his life time, convey by covin to any person his land holden, &c. for, or with divers Remainders over in Fee to a stranger, or to his owne right heires, or shall make by fraud contrary to this Act, any estate, conditions, mesnal­ties, tenures, or conveyances, to the in­tent to defraud the King or the Lords of these wardships, &c. which ought to come to them after their tenants death by force of this Statute, and of the Statute of 32. H. 8. the said estates and conveyances being found by Office to be so made by covin.

There the King shall have the ward­ship and other profits, 2. & 3. Eliz. Dyer 193. &c. according to the intent of the said Statute, as though no such estates had beene made, untill the said office be lawfully undone by tra­verse or otherwise, and other Lords shall have their remedy in such cases, as their wardships of body and lands by the Writ of Wards, and shall distraine and averre for their reliefes, heriots, or other profits, as if no such estates had beene made.

But observe, 10. Eliz. Dyer 276. Re. 8.165. a. Wights case. that it is adjudged upon these Statutes of 32. H. 8. and 34. H. 8. that where a third part is left out of such conveyance to be in Ward, &c. no covin or collusion can be averred for the other two parts disposed of by the Tenant, though the covin be found by Office, because the intent of the said Statute is, that the King, and other Lords should be satisfied with a third part, which is here left unto him.

If A. with his proper money purchase land holden, &c. to himselfe, and B. an Infant, and their heires, this cannot be averrred to be Collusion to avoid ward­ship, Primer sesin after the death, within the intent of these Statutes, because A. [Page 45]was never sole seised as he ought to be by the provision of these Statutes, and no feoffment which A. can make of his moi­tie can be averred to be Collusion, be­cause if no feoffement were, no benefit of wardship could acrue person Mort.

If the sonne and heire purchase (bona side) for money, his fathers lands holden, Re. 10.83. b. Sir Nicholas Strange's case, cited in Leon. Lowes case. &c. this shall not be taken to be a con­veyance of Collusion within the Statute of Marleb. nor within the Statute of 32. & 34. H. 8. to have a third part to the King or other Lords for the wardship, because by the third part it cannot be found preferment of him within the meaning of this Statute.

THe Tenure of Knights service as it gives the King or the Lord the ward­ship of the lands of the heire under age, so it gives him also the custody of the body of the heire male till his age of 21. years, & of the heire female, if she be under the [Page 46]age of 14. yeares, and unmarried at the death of her Ancestor, till her age of 16. yeares, whereof see before Sect. 6.

INcident to all manner of Tenures, 14. H. 8.45. & 156. Tenures. Br. Reliefes. be they King or common person, except the Tenure of the King by Fee-farme, which therefore yeelds no Reliefe, be­cause the Farme or rent thereof is in the judgement of the Law accompted a full value of the Land, except Tenures in Franke Allo moigne by divine service, and the like.

But Reliefe is no service whereby the land is holden, Co. 3. Penants case. fo. 66. Lit. fo. 28. b. but a profit or approve­ment of the services, as a blossome falne from a tree, and it is due immediately upon the death of the Ancestor.

The Reason why it is payed, as also the name thereof is given by Brooke, thus, Cum homagio facta fuerit, & fidelit. Succ. abillis cum plenitat. existent. oportet statim quod Tenem. quod fuit in manibus Ante­cessoris, [Page 47]& haereditas qui jacens fuerit eo­rum decessum relevatur in manibus habend. & propter talem Relevationem fasiend. orit ab heredibus prestatio qui dicitur re­levin.

This excludes all purohasers from pay­ing Reliefe, as hee saith also in another place, Dabit Relevin. qui succedat juri hereditario, non qui acquiret, Brac. fo. a. 11. H. 8.422. 22. Ed. 4. Re­liefe 8. And with this agreeth the current of our bookes now at this day, and common experi­ence; and this also excludes inheritances which goe in succession; and therefore all Corporations, because they never die, so that their land descend not, pay no Reliefe, Bro. Reliefe 9. 3. H. 4 2. because the successor hath not the land, Jure hereditario, but by prescrip­tion; a Corporation may pay no Reliefe, the heire ought to be of full age at the death of his Ancestor, or else he is not to pay any Reliefe, Lit. fo. 24. a. b. Mag. Cart. c. 3. as appeareth by Br. and by all other bookes, and the full age for this purpose as of the heire male of Te­nant by Knights service 15.21. of his heire female 14 as also of the heire of the Tenant in Soccoge his age of 14. hence it is plaine, that where the Lord hath the wardship of the heire of his Te­nant, [Page 48]that at the full age of the heire hee shall have no reliefe: And this is true, although the Lord hath only the land in ward, and not the body, whereof if the Lord hath by the priority the body and the land holden of himselfe in ward, the other Lords by posteriority at the full age of the heire, shall have no reliefe, be­cause they had every of them the land holden of themselves in ward.

But where the heire is left under age, and the case is so, Inst. 83. b. Stam. prae. 96. 24. E. 3.14. Vet. Na. Br. 93. a. that the Lords of whom the lands descend is holden, cannot have the land in Ward, there at the heires full age he shall pay reliefe to such Lord; as where a man holds his land of the King by Knights service in Capite, and of other Lords by Knights service, and dies, his heire being under age, and the King sei­seth the wardship, and all his lands which he holds of others, the heire at his full age is to pay reliefe to the other Lords, be­cause they had no lands in Ward.

The reliefe for a Knights fee of lands holden by Knights service in Capite, Inst. 83. b. Lit. fo. 24. b s. 112. Coo. 7. Nevills case. 33. b. t. is the fourth part of the value thereof, viz. 5. li. for a whole Knights fee, being anciently valued but at 20. li. per annum, And so [Page 49]after the same proportion for a greater and lesser quantity; whereof see before in Tenures.

Of land holden by grand Sergeancy, Lit. fo. 35. the reliefe payable to the King, is the va­lue of the land by the yeare, above all charges and reprises.

The remedy for a subject to get his re­liefe, is to destraine for it, 7. H. 6.13. Inst. 83. a. if it be not had in the life of the Lord, his Executors re­medy is an action of debt against the heire.

In the Kings case, where reliefe is due to him, the use is in the writ of Livery, to the heire, and directed to the Escheator to command him to take surety of the heire for payment of the reliefe, but hee seldome or never doth the same: but them of the Exchequer to whom the charge in this kinde belongs upon record of the Livery, send out summons against the Tenant for the said Reliefe, and upon the Sheriffes Return of Nihil, &c. Proces of Extent for the same.

IF after the death of the Kings Tenant in Capite, his heire enter into the land to him descended before he doth his ho­mage, and hath received his seisin from the King, he is by law an intruder upon the Kings possession, and shall forfeit all the profits of such lands to the King from the time of his intrusion, untill he have sued out the Livery, and hath no free­hold of the land in him, 3. H. 7.2. Stam. prae. Rs. fo. 12.14. b. insomuch that he can neither make a feoffement, nor other disposition thereof, nor shall his wife bee endowed thereof, but for restitution ther­unto, and the profits thereof, he is driven to sue to the King for his speciall grace and pardon.

To prevent which penalties, the Law requireth that the heire doe (at times) therefore by the Law appointed sue to the King to have such lands re-delivered un­to him by his highnesse, They cannot seize before the office. which is called in Law, saving of Livery, till which be done, [Page 51]the Escheator in the County where the land lies may (to the Kings use) seise and take the whole profits of the land, Coo. 9. Sir Geo. Reinolds case. 95. b. Coo. 8. Hales Case. 172. b. which notwithstanding is not used to be done till office be found, and then the King is in possession without seisure, and is to be an­swered of all profits since his Tenants death, till Livery sued forth, then he doth his homage, and hath the land delivered unto him out of the Kings hands, and pai­eth the King his Primer seisin, whereof see before in the last Title.

But because to your suing of Livery many things are to be done with great care, Coo. 8. Hales Case. 172. b. and still the Lord gives the heire 6.3. moneths time for the prosecuting thereof, if the heire at his full age, having been in Ward, or at the death of his an­cestors, if he after his full age tender his Livery, and pursue it with effect, he shall have as much benefit by his tender, as if he had done homage, and had sued his Livery; And therefore if the heire after the tender dies within the said 6.3. moneths, Coo. 9. Holts Case. 132. so that the prosecution of the Livery is become impossible by the act of God In providentia excusat legem, and the interest of the King to Primer seisin is [Page 52]determined, as if he had taken homage of the heire when he made his tender, but the meane rates if any were forfeited, are not discharged.

And so for the same reason, the heire after such tender may bargain and sell, or make other disposition of the land, and the same is good in law if he die within the said 6. moneths, Instructions by the new insti­tutions the sur veon. and hath as much power over it, as if he had sued his Live­ry, this tender at 6. moneths end is used to be continued over for 6. more, and so from 6. moneths to 6. moneths, as long as the Master of the Wards shall give leave, and in the meane time the heire hath like benefit thereof, as if he had sued his Livery.

Livery shall not be sued but where the Kings Tenant dyed seised of lands holden by Knights service in Capite, Inst. 77. a. or Soccage in Capite.

If the Tenure be Knights service in Capite, Stat. Marleb. ca. 16. viz. F.N B. 61. the King hath the same preroga­tive for his Livery that he hath in case of Wardship, whereof see before to have a Livery sued of lands holden by his Te­nant of others, either by Knights service, or Soccage, or for lands which he hath in [Page 53]Ward by reason of Ward, or that are holden of his Tenants, or that are holden of a Bishop by a Tenant that dyeth, while the temporalties of a Bishoprick are in the Kings hands.

But if the Tenure be in Soccage in Ca­pite, 4. El. Dy. 113. F. N. B. 256. b. 32. H. 8 Br. Gard. 97. 45. E. 3.19. 35. H. 8.6.52. F.N B 259. Inst. 77. the King as he shall have primer sei­sin, and a Livery to be sued of no other lands holden by his Tenant of others, be­sides the land holden by Soccage in Ca­pite; so also the heire of such Tenant shall not sue Livery, nor pay primer sei­sin, if at the death of his ancestor he bee under the age of 14. but in every of these cases, they to whom the body belongeth shall have an Ouster le maine una cum exi­tibus, viz. the Lord of whom the lands are holden by Knights service.

And here in the last case, 20. Eliz. Dyer 362. howbeit when he attaines his full age of 14. yeares hee must sue Livery, or else shall lose the meane rates.

But bee the heire of the Tenant by Knights service in Capite under age at the death of his ancestor, West. 1. cap. 22. St. 39 H 6. ca. 2. a. Stam. prae. Rs. 13. yet at his full age he shall sue Livery, although he hath been in Ward, as well as though he had been of full age at the death of his ancestor, [Page 54]though with some difference for the pri­mer seisin, as appears, Title Primer seisin.

The time after the death of the Kings Tenant for his heire to sue Livery, is of lands in question holden by Knights ser­vice in Capite, be the heire in Ward, and then comes to full age, or be of full age at his ancestors death, then viz. the heire male at 21. the heire female above 14. at the death of the ancestor, then if the possession of the free-hold doe descend immediately after the ancestors death to the heire, the Livery is to be sued forth­with: If only a reversion doe descend, then not till after the death of the particu­lar Tenant, if it be a reversion without rent incident thereunto; howbeit the heire at this day hath election either to sue immediately in the life of the particu­lar Tenant, paving for Primer feisin but halfe a yeares value, or to tarry till after his death, Inst. 77. a. Dyer 14. Eliz. 308. b. and then to sue it, and pay a whole yeares value of the land, but if it be in reversion with a rent incident there­unto, and he sueth out his Livery in the life of the Tenant, he may doe so, and shall pay for Primer seisin but one yeares value of the rent.

And the time of the heire of Tenant by Soccage in Capite to sue Livery is, Coo. 9. Hales case 132. b. Re. 9.81. Leon. Lowes case. immediatly upon the death of the Ance­stor, with the same observation of pos­session, or Reversion, as is for the heire of the Tenant by Knights service in Ca­pite, if he be above 14. years of age at the death of his ancestor, and if hee be under, then hee is to sue no Livery till he be 21. yeares, as is afore shewed.

But the time which the law hath ap­pointed for Soccage of Livery may by Accident be altered or changed, Co. Re. 9.173. Sir Hen. Con­stables case. Coo. Re. 6.74. Sir Dru Dru­ries case. as where the sonne and heire is a Knight in the life of his father, and his father dies before he be of full age, his Livery must be sued or tendred immediatly on his fathers death, and before his full age, because the King by Knighting him, hath adjudged him of full age.

So in diebus illis, if the father had en­tred into Religion, his heire being of full age, his heire should have sued Livery presently, and should not have expected his fathers naturall death.

No Livery can be sued of lands above the yearely value of 5. li. before office found before the Eschator or other Com­missioners Stat. 33. H. 8. cap. 22. 14. Ed. 4.5. [Page 56]by vertue of the Kings Writ or Commission derected out of the Chance­rie or other Courts that have authority to make such writs or Commissions for su­ing of Livery.

But Livery of lands under the yearely value of 5. li. may be by warrant made from the Court of Wards and Liveries be sued forth, St. 33. H. 8. c. 22 although there had been there­of no office returned.

The reason of this is, F.N.B. 253. Ib. in Stam. 52. that the King may be certainely informed by matter of Record, who shall be his Tenant, and whom he ought to make Tenant, and this cannot be but upon an office, or by a spe­ciall Writ or Commission, in nature of that Writ or Commission to enquire of all wards, or the like.

AN Office is an Inquest by twelve men at the least, taken before the Es­cheator, assisted with the Feodry, or the Commissioners of things which convert the Kings revenue to finde his Title, and as a matter of Record, requisite bv. law to give the King an actuall and perfect sei­sin, or possession of the thing whereof the office is found, as of Escheators, Wards land forfeited or aliened without licence, and the like.

OFfices concerning Wardships, 4. Ed. 4.24. 33. H. 8. c. 22. of which only I speake, the Escheator may finde as well by office, as Virtute brevis, but with this difference,

Added by Statute, that if the land [Page 70]whereof the office is to be found, bee of 60. pound yearly value or above, and hol­den of the King, the Escheator forfeits 5. pounds if hee finds any office thereof without the Kings writ directed to him for that purpose.

Writs or commission in nature hereof whereupon offices are to be found may not be made out of the Chancery or other Court having authority to make the same but by warrant or bill signed by the Mr. Survey or of the court of Wards, 33. H. 8. ca. 12. or one of them directed to the Chancellour or offi­cer having power to award the same writs.

Such or the Commissions are the diem clausit extremum Mandamus devenerunt, Co. 8. p. Stoughtons Case. 169. quae plura, Melius inquirendum & datum nobis intelligi, the severall natures whereof in what cases they be, so see Title Livery.

To which may be added that after the diem clausit, or a mandamus awarded an office found, there shall goe forth no more writs of the same kind to enquire further therefore at the instance of the same party.

But where the office is imperfectly found against the King, in such case the King cannot traverse the office, as a sub­ject may upon surmise in the Court of Wards, that the lands are of greater value, [Page 71]that they are holden of other services, that the Tenant was seised of another estate, that these are more heires or other heires then were found in the first office, or where by the first office the heire was found within age, where indeed, the Te­nant dyed without heire, so that the land ought to escheate, or where by the first office one is found heire of full age, where he was under age, and generally where his highnesse hath a better Title then was found for him by the first office, a Melius inquirendum may bee awarded in the Kings behalfe.

But in good discretion, Co. 8. Paris Stoughtons case 169. no Melius in­quirendum should be awarded after a per­fect office found against the King without view of some record or other pregnant matter to intitle the King.

If upon the Melius inquirendum the office be found against the King, Ibidem. 169. b. he shall not have a second Melius, but is found by the office even as a subject, as against whom his traverse wch see Title Traverse.

And note that upon the last office upon the melius, makes the first office void, 12. Eliz. Dyer 2 [...]2. Stat. E. 6. Cap. 8. as if upon the diem, it be found that the land was holden of the King, sed per quae servitia Iur. ignorant. And thereupon the, Melius [Page 72]awarded, it is found that the tenure of a subject, and all other points uncertaine, as the Tenure, the State, the Value, &c. the first office is void.

When such inquest is found for the King, 21. Ed. 3.2. this finding is called an office, and it is a Title for the King, whereof the In­quest was taken of such validity, that when the King is once seised by office, the seisin, the office remaines till it bee discharged by matter of as high a nature as the office was, 1. H. 7.19. viz. matter of Record, namely a Livery, or Ouster le maine.

But if an office found for a subject, 21. Ed. 3.2. it makes no Title for him, but is and may be used, as matter of evidence to prove his Title.

An office is sufficient to entitle the King, Stat. 1. H. 8. Ca. 8.3. H. 8. Ca. 22. Coo. 1. p. although it be never returned, for if it doe appeare by the examination of the Escheator that hath upon such office sei­sed the lands into the Kings hands, it is sufficient; But offices are usually returned if they be found by Writ or Commission into the Chancery whence the Writ or Commission issued, Alton Woods 42. Coo. 4. p. Sad­lers case. 5.7. 18. El. ca. 12. and from thence to the Clerkes of the Bagge transcripted in­to the Exchequer, and into the Court of [Page 73]Wards, but offices found Virtute officii, without any. Writ or Commission, the Escheater may at his choice returne them either into the Chancery or Exchequer; And if they be found in the County Pala­tine of Lancastar, Chester, or Durham, either by Writ or otherwise, they are to be thence transcripted into the Court of Wards.

When an office is found inttiling the King to a Wardship, 16. Ed. 4.1. Coo. 4. p. Sad­lers case. 59. it relates to the time of the ancestors death, and gives the King all the meane profits of his land for that time, because the King hath the ward­ship Ratione prioris tituli, viz. by reason of his seigniory, and loseth his rent and services in the meane time.

But an office to entitle the King to an Ideot, Coo. 8. p. Com­sors case. 180. relates for the meane profits and the land no further then the finding the office, because the King hath the custody of an Ideot, Jure protectionis Rege, prote­ction commeth by the office found, and not before; but yet for avoiding of mean conveiances of his land made by the Ide­ot, the office hath relation to the Ideots Nativity.

An office is requisite to be found after [Page 74]the death of the Kings Tenant for two causes, 4. Eliz. Dyer 3: 1. H. 7.19. &c. Coo. 9. P. Sir Geo. Reynolds case 95. b. first for the dignity of the Kings person, who cannot take nor depart with any inheritance or freehold but by matter of record.

Secondly because it puts the King pre­sently upon the office found in actuall and full possession of the Wards, lands, and the profits thereof since his Ance­stors death before any service or entrey by the Escheators, which actuall pos­session the King hath not before Of­fice.

For although by Stamf. he hath before office possession in law cast upon him by right of his signiory, Sum. prae. Rs. 54.69. which he may by entry or seisure of his Escheators before office reduce to an actuall possession, suf­ficient to enable him to keepe the lands in his owne hands, and to take the profits thereof, yet he hath not till office be found a perfect actuall possession, such as may enable him to grant or lease the land to his Committee.

Because the statute of 18. H. 6. provi­videth that all letters patents made by the King of lands or Ten: Stat. 18. H. 6. C. b. before of­fice found and returned, or within one [Page 75]Moneth after, unlesse it be to him that ten­dreth his traverse, the same office shall be voyd.

But the Master of the Wards may within that moneth after office make a release of Wards or Idiots lands to other then he that tenders a Traverse being en­abled thereunto by the Stat. Stat. 32. H. 8. Ca. 46. 32. H. 8. which is generall, and a latter Statute 18. Hen. 6.

This seemes to be the reason why our bookes say that in case of Wardship of land the King is presently by the office in possession before seisure, Coo. 1. p. Sir. Geo. Cursons ca. 956. that hee hath not possession till office, and that at this day the Escheator cannot seise any lands into the Kings hands for Wardship or other cause before the kings Title be first found by office, 1 H. 7 17. 4. H. 7.1. 5. Ed. 1. B. offic. 55. which is to be understood to enable him by such seisure to grant the lands before office found, Coo. 8. Paris Stoughtons case 169. for to all other purposes it seemes not against law that the Escheator may at this day seise a Wards lands before office as the words of the diem directed him to doe, and as many bookes warrant, whereof see Stamf. Prae. Rs. fo. 12.14.78. b.

But because before office it is [Page 76]doubtfull whether the King have Title or no, the Es [...]hraters doe generally of their owne discretion ever since the Statute of Lincoine 79. E. 1. forbeare to seise before office, thereby to avoid the Kings great trouble in suing the Ouster le maine, which he was driven to doe by the Escheators seisure only, though afterwards the office found did not intitle the King.

But the King as all other Lord, 20. Ed. 4 11. Stam. prae. Rs. 54.69. that are common persons, is in the judge­ment of Law presently upon his Tenants death in possession of the body of his Ward in right of his seigniory, 30. H. 6. Br. Patents 74. 11. Ed. 4.7. and may grant away the Wardship thereof, before or after seisure, and before office found, because the said Statute of 18. H. 6. ex­tends not to the body, or in the ancestors life time may grant it Quando event. & de haered, as our bookes and common expe­rience agree.

BUt by that which hath been said it may be collected how great inconve­niences may issue as well to the King by suppressing his Tenures, and consequent­ly withdrawing one of his ancientest re­venues of the Crowne as to his subjects, by finding the lands to be holden of the King, where in truth they are not, if cor­ruption should be used in the finding of offices, to prevent which, divers Statutes have been made under severall penalties, concerning an upright and just demeanor therein, as well by the Kings Ministers, as Jurors, and the parties whom it may concerue.

The substance of most whereof follow, 34. Ed. 3. c. 19. 36. Ed. 3. c. 13. 8. H. 6. c. 16. 18. H. 6. c. 7. All offices not found in good townes o­penly, and by men of good fame, and im­panelled by the Sheriffe, and having suf­ficiently [Page 78]in the same Countie, and by In­denture betweene the Escheator and the Jurours shall be voide. 33. H. 6.17. 33. H. 8.2. Escheators ought to finde offices by vertue of writs within one moneth after the receipt thereof, and in good townes, and in open places; and shall take no fees therefore but 40. shillings for executing every writ.

Escheators ought to bee men of 40. markes per annum at the least, 1. H. 8.8. except Es­cheators in Cities, Townes, and Counties Palatine of Lancaster and Chester.

Escheators or Commissioners shall not returne any office not found by the oathes of 12. men, and indented, and by them sealed.

Every man shall bee admitted by the Escheators, &c. to give evidence openly in his presence, at the finding of offices.

Escheators, &c. ought to receive offi­ces found by the Jury without delay, and to deliver, the Counterpart thereof inden­ted and sealed by himselfe to the Jury, and the rest with the foreman of the Jury, to the end that the Escheators may not imbesill or change such offices. Stat. 8. H. 6. Ca. 16. 18. H. 6.7.

All offices are to bee returned in the Chancery or Exchequer within one [Page 79]Moneth after the taking thereof, 33. H. 8.22. Stat. 1. H. 8.8. 7. H. 8.2. and the officers of the Chancery or Exchequer ought to receive the same, and to fill it within 3. or 4. dayes after receipt, and are thence to be transcripted into the Court of Wards, as above is set forth.

Tenant for yeares, Copyholder, Stat. 2. Ed. 6.8. and he which hath a rent or other profit out of the Wards lands which are not found in the office, shall have and enjoy these, as if no such office had beene found, which be­fore this Statute he could not have.

VVhere an heire of full age is by an office found to be under age, he may have his writ de aetate probanda, and may sue his Livery or Ouster le maine, and shall be restored to the profit of his land, so if the heire under age be found to be of les­ser age then in truth he is, at his full age he may have like remedy, and shall be re­stored to the profit of his lands from the time of his very full age, notwithstanding such untrue office.