A LEARNED TREATISE CONCERNING WARDS AND LIVERIES; WRITTEN By the Right Honourable and learned Gentleman Sr. James Ley Knight and Baronet, Earl of Marlebrough, Lord high Treasurer of England, when he was Attorney of his Majesty's Court of WARDS and LIVERIES. WHEREIN IS SET FORTH the learning concerning Wards and Liveries, collected and well digested out of the yeare-bookes, and other authorities of the Law, for the benefit of all that are Studious. London printed by G. Bishop, and R. White, for Henry Shepherd, and Henry Twyford, and are to be sold at the sign of the Bible in Chancery-Lane, and at the three Daggers in Fleetstreet. 1642. THE EPISTLE DEDICATORY. TO THE STUDENTS OF the Common Law of England. 'tIs not to commend this Work, that this is written, for that it will itself; nor is it to present unto the curious Readers view, novelties but ancient learning usefully digested; the common Law of England that is defined to be Lex non Scripta, is best known by the multitudes of particular cases reported and set down in the several yeare-bookes, and other reports of the Law, and in them the several resolutions of different natures being set down as in time they happened to be argued, without having regard to report together all such cases as concerned one kind of learning, breeds such confusion, that the painful student must be very careful under his several titles in his common-place-bookes to take notes with reference to the books from whence he takes them proper to be applied to the title under which he writes it, and likewise carefully to coat his books to each other, or otherwise upon sundry occasions he may be driven to tumble up and down the several books to resolve himself, and miss too of such good resolutions as the books would afford him, if his memory (which may easily fail) be not admirable; This small Epitome will-prevent that trouble, and help (more than any abridgement extant) the laborious Student to know and find out the learning concerning wards, and Liveries, no small part of our Law, nor easiest learning; It was written by the right Honourable and learned Sir James Ley, Earl of Marlebrough, Lord High Treasurer of England, when he was Attorney of the Wards and Liveries, for his own private use, but now presented to public view for the common good of the Students of the Law; The learning concerning Wards and Liveries was not practised in one peculiar Court, nor differences concerning Wards lands not confined to any particular Court, but left to be proceeded in all Courts proper for the nature of the causes, till of late years: but now by a Statute made 32. H. 8. cap. 46. A peculiar Court known by the name of the Court of Wards is erected, wherein all things that concern the King's Wards is heard and determined, so that now the Law as to Wards being to be only practised there: This Treatise will be of good use to him that intends that practice, for in it will be found very much of the learning concerning Wards, for him that desires the knowledge of such learning: It was chiefly published, and to him is wished increase of Learning, Farewell. Instructions for our Mr. of our Wards and Liveries, for the better authorising and directing of him in the execution of his Office and performance of our service. FIrst our pleasure is, and we do declare the Master of our Wards shall and may survey and dispose of all and every of our Wards, Idiots and Lunatics, and respectively, of their Lands, Tenements, Hereditaments, Chattels, goods, properties, interests, rights, titles, Intrusions, Arrearages and Meane-rates, and all Liveries, Ouster le manes, and ancient Manors, and all Advowsons', and presentations of Churches, Herriots, Reliefs, Coppyholds, Woods, Mines, and Quarries, of any our Wards, and of all duties belonging, or to belong to us by reason of any Tenure. That the Master of the Wards shall from time to time call unto him one or more of such persons as we nominate to be his assistants, and shall use the assistance and advice of the mor one of them, at a place certain, and times certain be limited and appointed by the Master for the sitting upon the matters within his survey and disposition, so that our Tenants and Suitors may make their repair thereunto. That the Master with the advice aforesaid shall have power and authority to compound for the Wardships, Idiots, Lunatics, and other duties aforesaid, and to assess all Fines, install all payments for the matters aforesaid, and to take Bond and Security in our name for the same, and to commit them to the safe custody of our Clerk of our Wards, and Liveries to our use, and upon full payment to cause the same to be delivered up and canceled, and also to discharge and renew any Bond or Securities as occasions shall require. That there be ordained a special seal for our Wards, Liveries, and Tenors, and for our 〈◊〉 ●…ising by reason thereof, which 〈◊〉 shall be in the custody of the said, Master of the Wards, and that no other seal shall be used for, or concerning any the matters or causes aforesaid. That the Master with the advice aforesaid shall have power and authority to grant Wardships for Fines, to make Leases of Wards Lands, and of Lands in our hands for want of Livery or Ouster le maine, for Fines and reserving of rents, and to grant the custody of Idiots, and Lunatics, and their goods and Lands, and to compound for mean rates, and to mitigate and remit as well the forfeitures of such bonds and mean rates, as also to allow reasonable recompense to prosecutors, such as do service in the cases aforesaid. That the Mastor with the advice aforesaid shall have power and authority to give direction to any of our Courts, and unto the officers thereof and unto any of our Ministers and officers, as well for the proceed and prosecution of any suits, and pleas, and finding of offices and inquisitions, making of certificates and other services, as also for the stay, surceasing or superseding thereof, and that no direction shall be given to the contrary or otherwise by any of our chief Officers touching the premises: That all petitions or suits made to us touching the causes aforesaid shall be either referred or directed to the said Master, who shall have power with the advice aforesaid to answer and determine the same, and that petition, suit, or information shall not be received by our council of revenue touching the premises but that the same shall be made and belong unto the Master of the Wards and Liveries. And whereas the Kings most excellent Majesty by Indenture bearing date 10. januarij 14. Jacobi, made between his Majesty on the one part, and Sir Francis Bacon Knight, Lord virulam, and Lord Chancellor of England, Sir John Daccombe Knight deceased, Thomas Murrey Esquire our Secretary, Sir James Fullerton Knight, one of the Gentlemen of our Bedchamber, John Walter Esquire our Attorney General, and Thomas Trevor Esquire our Solicitor General of the other party, hath demised and granted unto them for our only use and benefit of sundry Lordships, Castles, Burroughes, Towns, Manners, Lands, Tenements, Liberties, Franchises and Hereditaments, to have and to hold the same from the Feast of St. Michael the Archangel last passed before the date hereof, for the term of 99 years. And upon the trust and confidence, and to the intent and purpose in the same Indenture mentioned and expressed. Now our pleasure is that the said Lord Chancellor and the rest of the surviving Lessees and their Assigns shall from time to time join in all such grants, discharges, conveyances and Instruments touching the matters aforesaid by writing under their hands and seals and otherwise, as by the Master of our Wards, with the advice aforesaid shall from time to time be directed; And our further pleasure is that the Commissioners for our revenues (if need shall so require) shall allow and give warrant in writing for the same. That the Master with the advice aforesaid shall have power by Letters Patents under our great Seal to appoint such Feodaries, Escheators Auditors, Receivers, Surveyors and other Ministers of the Wards, Liveries, and matters aforesaid as he shall think needful for our profit, and service, and from time to time to alter, change, determine and discharge all or any of the said Officers and Ministers, and their Offices and employments as now or hereafter shall be, and determine our Will and Pleasure concerning the same. That all Ordinances, Constitutions, Acts, made, published, declared and set down contrary to the hindrances of these our instructions, shall so fare only as they are contrary, or to the hindrance thereof be utterly void and annihilated, any other matter, cause, or thing to the comrary thereof notwithstanding. That the Master of our Wards and Liveries do acquaint the Attorney and Council of the King's Majesty's Court of Wards and Liveries withal such proceed as may require their assistance for our said Tenors, Revenue and profit, and especially his Majesty's Attorney of that Court, and the Clerk of that Court for the preparing, clearing, finding, searching, and revealing of Tenors, and of the states subject unto our Wardships and Liveries, by any due and lawful means whatsoever. Lastly, whereas the Kings most excellent Majesty hath by his Letters Patents under his great Seal, dated the 11. day of this December granted unto the Master and Council of the Court of Wards and Liveries, Commission with instructions and directions for compounding for Wards, Idiots, and Lunatics. Our will and pleasure is, that the Master of the Wards shall diligently and carefully inform himself of the same instructions and directions, and by Example and precedents thereof order and dispose the affairs of our Wards, Idiots, Lunatics, Liveries and Tenors, so fare forth as the same may stand with congruity and concordancy, taking special care that our just and reasonable profits may be raised without diverting the same to others; and that nevertheless our Tenants may be moderately charged, and our Wards may be educated in Religion. Examinatur per Jac. Ley. Tenors. 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 Knight's service in Capite. So if in his grant the King says by express words, Absque aliquo inde redendo, yet because all Land must be holden by some service, the best shall be intended for the King; therefore against the express words of the Patent, the Law will create a new Tenure by Knight's Service In Capite. So if the King gives Lands tenend. as freely as he holds the Crown, yet the Grantee shall hold by Knight's service in Capite, and in all these cases the Tenure shall be by such a part of a Knight's Fee, as the value of the Land shall bear; what shall be said of a Knight's Fee, see the end of this Title. But if the Grant be Tenend. de nobis per 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 special rent, the Tenure shall be such as he reserves. If it be Tenendum de nobis ut de honore, Castrum vel Manner. de A. per servitium Militare, or, De honore Casiro vel Manner. de A. per servitium unius Rosae, Rubiae, or by 2. s. or by Fealty, for all the services, these be mean Tenors of the King, in the first case common Knights service; in the second, common Soccage, because the Tenure is not immediately 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, etc. That a Tenure of the King, as of any of these, makes a Tenure in Capite, either in Knight's 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 do 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 Knight's service, because where the words be uncertain, the best shall be intended for the King. If the King have Lands in his hands, holden by a common person immediately as aforesaid. For Treason all Tenors, 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 immediately; 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 mean 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 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 Tenors are extinct) it hath always been used upon a grant thereof made by the King to restore the ancient Tenure of the Subject, and if a grant had been made otherwise, he of whom the lands were holden before, had his remedy by petition to the King. If the King purchase a Manor, of which I. S. holds, he shall hold as he held before, and shall not sue Livery, nor pay Primer seisin, nor hold in Capite. To hold of the King by grand Sergeancy, is Knight's service in Capite; by petty Sergeancy, is Soccage in Capite; whereof more in the following Title. To hold of the King by Castleguard, Lit. 34. b. Coo. 2 p. Cromwel's case. 81. Lit. 266. is Knight's service in Capite, but to hold by certain Rent for Castleguard, is but Soccage; But by Fitz Harberts' natura 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 certain rent for the keeping of Dover C stle, is taken to be Knights service in Capite; but this seems not Law. Note that there must of necessity be a Tenure of all Lands in the hands of Subjects, Coo. 9 p. Ant. Lowes case. 123. wherefore if the King grants or releases the service of his Tenant by Knight's service, etc. to his Tenant and his heirs, this cannot extinguish the Tenure wholly, but that fealty shall remain for necessity of Tenure; 26. H. 8.9. As in grants, so in offices found after the death of the King's 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 been found, that one held of the King generally, Sed per quae servitia jurat. ignorant, this was taken for a Tenure by Knight's service in Capite, because where the Tenure is uncertain, the best shall be intended for the King. And for the same reason an office finding De quo tenetur jurator ignorant, this was taken for Tenure by Knight's service in Capite, because where the Tenure is uncertain, the best shall be intended for the King. And for the same reason an office finding the 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 Knight's service. There are also Tenors by collusion, or estoppel, 7. E. 3.37. as when a man seized in Fee simple of Lands holden of a common person, hath sued a Livery, or Ouster le main of the same out of the King's hands, or hath confessed by any matter of Record a Tenure in chief of the King, this makes the Land holden of the King, of whemsoever it was holden before, and the King shall have wardship by reason of this Tenure. Tenant in tail general holds of his Donor in such Knight's service as he 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 he shall still hold of his Donor. Twelve plough Land, being every one of them anciently of the yearly value of five nobles, make a Knight's Fee, worth per ann. 20. l. which was anciently accounted sufficient maintenance for a Knight, thirteen Knights Fees, and a third part being 400. marks yearly value, made a Barony, Re. 9.124. Ant. Lowes case. Inst. fo. 69. a.b. twenty Knights Fee of 400. l. yearly value, made an Earldom, and according to the same proportion 800. marks a Marquesdome, and 800. l. a Dukedom, the fourth part of which is paid the King for a relief, viz. of a Knight's fee, 5. l. and so of the rest. To hold of the King in Fee Farm, Mag. Cart. cap. 27. 20. E. le case. Inhabitant de Sassron Walden. is a Soccage Tenure, and yet this Tenure shall yield no relief, because the Law intends that the Farm, or Rent, that he pays for the Land, is the full value of the land, and recompenses all other profits of the Tenure, and this is the common experience of the Exchequer. Tenors for the most part are either Knight's service, or Soccage; Knights service is either in Capite of the King, or in common Knights service; in Capite, is of two kinds, one more special, viz. a grand Sergeancy, the other the general service; Knights service is either of the King, as of some Honour, Castle, or Manor, or Knight's service of common persons: So Soccage is either in Capite, or common Soccage, in Capite more special, as petty Sergeancy, or more general, the common Soccage is either of the King, as of some Honour, Castle, or Manor, which are species of ancient Demesne and Burgages of the King, or Soccage of a common person. There are also other Tenors, as Frankallmoigne, Tenure by Divine Service, base Tenure, as Coppy-holder, Tenure by villainage, of which I need not speak for the purpose in hand. Of Knight's service and Soccage Tenure of a common person: I may likewise spare the description; but of either of these much is said in the Title of Wards collusion, and those that follow. Tenure in Capite by Knight's service. IS properly where lands are holden of the person of the King and of his Crown, as of a signory itself in gross, 30. H. 8. Dyer 44. a. and chief above all other seignories; Improperly of him as of some ancient Honour annexed to the Crown, as Barkingsteed, Newland, Raleigh, Stat. praerog. Rs. fo. 29. b. the Abbey of Marle, etc. And this description is understood as well of Knight's service, as Soccage in Capite. Knight's service in Capite is denoted either by express words, as Tenend. de nobis per servitium militare, or improperly, by construction of Law upon uncertain words, as in the cases supra Title, Tenors. The more special Knight's service, is grand Sergeancy, Lit. 34. b. which is denoted by some particular service to be done in his own person to the King, than the other requireth, as to carry the King's Banner, lance, etc. to lead his Host, to be his Marshal, to carry his Sword before him at his Coronation, to be his Sewer, Carver, or Butler at his Coronation, to be one of the Chamberlains of his Exchequer, and divers other the like. To Knight's 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, Relief, Livery, and Licence to alien, but also Prerogative to Wardships, and Primer seisin of all other Lands holden of common persons in Knight's service, or in Soccage, and of all other services, whereof the Tenant in Capite died sole seized in Fee, and Fee tail in his own Right, or in the Right of his wife in Possession, Reversion, Remainder, or in Right which descended to the King's Ward, and not to any other customary heir, 12. Ed. 4.18. as the younger sons in Gavellkindes', etc. Except the Lands holden of the Archbishop of Canterbury, the Bishop of Duresme between Tyne and Tese, and the Lords of the Marches, where the King's writs runneth not, which they had in Anno 17. Ed. 2. 17. Ed. 2. Meves case. 133. Sta. 17. Ed. 2. Stam. pray. 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 King's Ward, was never seized of those Lands, nor of the service they were holden by. And the mean Lords, whose Fees the King hath in Ward by his Prerogative, shall have their Rents by which such Lands were holden during the Minority paid to them, by the King's 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. Soccage in Capite. THE Tenure is described in the last Title; Coo. 6. p. Wheelers case 7. the service that this Tenure is known by, is generally where the Tenant holds by certain services, not by knight's 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 employed by the Law, as incident to all manner of services,; More special soccage in Capite is petty Sergeancy, which is where a man is bound by his Tenure to render yearly 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. Relief, Primer seisin, and Livery, and licence to alien; whereof in these small Titles. Common Knights service of the King. IT is where land is holden of the King, as of some Honour, Castle, or Manor, per servitium military. expressly, or implyedly by construction of Law upon ambiguous words. This Tenure gives the King Ward, Marriage, Relief, Livery, but no Primer seisin, nor licence to alien, nor hath the King hereby any prerogative to have other lands holden by the King's Tenant of common persons into Wardship. But yet the King shall by his prerogative have the Marriage 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 Majesty after he was enfeoffed of his lands holden of others, without respect of the priority of feoffement, which always prevails amongst mean Lords; whereof more fully afterwards, in Title Marriage. Common Soccage of the King. IS where Land is holden of the King, as of some Honour, Castle, or Manor, by the services mentioned supra Title Soccage in Capite. This Tenure yields a Relief, but no Wardship to the King, Marriage, Primer seisin, etc. Ward. THe Tenure by Knight's service, had his original Creation for the defence of the Kingdom, Lit. fo. 20. binding the Tenant to serve the King, or other Lord to whom he is Tenant in the King's wars for a certain time, to the quantity of his Term, and therefore that the Commonwealth should not be unserved, the Law gives the King, Lit. fo. 22. or the other Lord custody of the heir Male of such Tcnant, being under age of one and twenty years at the death of his Ancestor, together with the profits of his Land, till the same age. And of the heir Female, Lit. fo. 22. under the age of fourteen years at the death of her Ancestor, and unmarried, together with the profits of her Land, until her age of sixteen, to the end that he may provide himself of a man able to do him Knights service: But if the heir Female be married at the death of her Ancestor, than her Land only shall be in Ward but till her age of fourteen years, because those two years after fourteen, are given only to make tender of her marriage, which is already done: And if at her Ancestors death she be fourteen years 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 she may have a husband able to do 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 years are given in favour of the Lord. But when lands that are holden of the king or other Lord, descend to an heir male or female in the life of the father, from some other ancestor, as from the grandfather etc. of the mother's side, the mother being dead, Lit. fo. 25. Coo. 3. Ratch. case. 38. Coo. 6. Re. Ambrosia: George's 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 heir, with this difference, in case of an heir 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 heir apparent, and this privilege is given to the Father, but for his heir apparent, which now she is not, in those cases the grandfather shall not have the Wardship of his grandchild if his father be dead, touching the king's prerogative, to have Wardships of his lands, that his Tenant by knight's service in Capite held of another Lord: See before, Title Tenure in Capite by knight's service, and more in Stamf. exposition of the king's prerogative, cap. 1. So the essence of Wardships is requisite, that the Tenant die sole seized of lands in possession, Remainder, or Reversion, or in right holden in knight's service, and a descent to their heir, for if men be jointly seized in fee, or in fee tail, and one of them die, his heir 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 himself and others, and their heirs, this is holden collusion within the Statute, 34. H. 8. ca 5. to avoid Wardship which may accrue after the death of I. D. because he was never sole seized, 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 jointly seized of lands holden of the king in possession, and not in remainder to them and the heirs of the body of one of them, and he that hath the inheritance dyeth, his heir deins age, the king shall have the Wardship and Marriage of such heir 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 person, there would be no wardship during all the life of the Survivor. Ward, where the Tenant dyeth seized of land in the very possession thereof, by taking the profits, etc. This admits no difficulty, and therefore in vain 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 until 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 heir being within age, here during the life of the Tenant for life, the heir of him in the Remainder, shall not be in ward, because the impediment is not removed; but in that case, if after the descent of the Remainder and before the death of the Tenant for life, the Lord grant away his Seignory, and after the Tenant for life dies, the heir of him in Remainder being under age, neither the grantor nor the grantee of the Seignory shall have him in ward. If the Tenant make a gift in tail, the Remainder over in fee to another, 4. H. 6.10. here the Tenant in tail holds immediately of the chief Lord, and he die, his heir under age, he shall be in ward to the chief Lord, and so shall the heir of him in remainder in fee, if the Tenant in tail die without issue during the minority of the heir of him in the remainder, because the impediment is removed by death. But if an estate tail be made of lands holden of a common person, the remainder in fee to the King, the Tenant in tail 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 tail, 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 tail, leaving the reversion in himself, he remains Tenant still to his Lord, and his heirs 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 between a Remainder and a Reversion: So if the Tenant infeoffs A. who gives the land back again in tail to the tenant, or to the son of the tenant, Tenend. de Capital. Dom. yet the Tenant in tail should hold of his Donor, and he of his Lord Paramount, and the heir of the Donor shall be in Ward to his Lord, for the reversion, and the heir of the tenant in tail shall be in Ward to his Donor for the possession. And for the same reason, Coo. 2. Binghams' Case. 92. if the Tenant in tail be with the reversion expectant to himself and his heirs of lands holden by Knight's service, of a common person, and he dies, his heir within age, he shall be in Ward for his body, but not for his lands, 24. Ed. 3.33. because between the estate tail, and the reversion, stand two distinct estates in the tenant, and the reversion only is holden immediately from the Lord, and not the estate tail in possession; but if the Case had been Tenant in tail, with the remainder to an estranger in fee, there the heir of the tenant in tail 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 immediately. But note, that in the King's Case, if his Tenant make a gift in tail, and grant the reversion, over, or keeps the reversion expectant to himself in fee, in these Cases, and the like, by some books the King may elect his tenant, and there shall be a Wardship of the heir of the Tenant in tail, or of him in the reversion, as his Majesty shall elect, Stat. 34. H. 8. cap. 5. and this election shall bind him, so that afterwards he cannot resort to a new choice, but other books are contrary, viz. that he in the reversion is only the King's 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 be 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 tail, as in fee simple. If the king's 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 heir, yet the heirs being within age, shall be in Ward for this right, Coo. 3. Butler, & Baker's case. 35. a. because after the disseisin, the disseisee remains still tenant to the Lord in right of Law. So if tenant in tail make a feoffement in fee, 48. Ed. 3.8. 15. Ed. 4.10. br. and thereby discontinue the tail, and then dies, his issue under age shall be in Ward to the Donor. So where the heir under age recovers lands holden, etc. by a Br. de entrey sur disseisin, writ of Cozenage, 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 seized to the use of the father and his heirs upon a contingent, the father dies, his heir under age, the contingent happens, It was held by the Court of Wards, that the heir 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. Lincoln College Case. if the issue in tail under age enters into the jointure 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 in manner of a purchase, and not by descent. So if the father leaseth to his son and heir 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 etc. And generally in all other cases where the heir hath the land by purchase without collusion, is where he buys 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, than there will be a wardship by the Stat. of Marleb. and 34. H. 8. cap. 5. though the heir had not the land by descent, whereof after see in the Title Collusion. If the King Knight the heir apparent of his own 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, he shall not be in ward though he be under age at the death of his Ancestor, neither for body nor land, but shall for all purposes be reputed of full age, because the king by knighting him, hath adjudged him of full age, and able to do knights service. But if he knight him after his Ancecestors death while he is in ward, Stat. Mag. Carta cap. 3. he 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 years, Quem vide apres en le Title Marriage, as also some other Cases, where the heir shall be out of wardship for his body, though his lands remain still in ward. Wardships and Primer Seisin. By these Statutes of 32. H. 8. c. 1. a. 34. H. 8. cap. 5. of Wills. 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, etc. May by his last Will in writing, by act executed in his life time, give, dispose, will, or assign two parts thereof for advancement of his wife, preferment of his children, or paying of his debts, etc. leaving to the King wardship and primer seisin, and to no other Lord's wardship of so much of the same lands as shall amount to the clear yearly 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 do 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 than they do give benefit to the King and other Lords, to have wardships, etc. In cases when they shall have had none before, though the Ancestor neither died seized, nor any land descended to his heir, which are contrary to the rules of the Common Law, which see before in the last Title. And where the father conveys his land holden, etc. by act executed in his life time for advancement of his wife, preferment of his children, or payment of his debts, and dies, his heir under age, here is neither dying seized, nor descent; and yet the Statutes gives a third part of these lands to be in ward during the minority of his heir, notwithstanding it shall at his full age go according to his father's 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 do in no case give wardship, where there is no heir, as where the father after such conveyance is attainted of Treason, and died 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 heir, in regard of a corruption of his blood. And note, where the Ancestor deviseth by his last will land holden, etc. to his wife, Dyer 150. b. St. 34. H. 8. ca 5. Coo. 8. Sir Richard Pexals Case. 85. a. younger children, etc. 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 be no wardship but only for the third part descended, which the heir 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, etc. this is void to charge a third part of the lands, notwithstanding the land descends, charge of the rent. But where the land holden, etc. are deviseable per custom in London, and some other towns, 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 do not destroy the custom, but the case: But the saying of these Statutes do avoid the will pro tempore, Coo. Re. 3.35. a. b. But. & Baker's Case. and give a third part to the King for a wardship during the minority, etc. And yet the heir is barred by custom 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 appear by cases of difficulty, for of common persons having of lands, etc. I purpose not to speak, plain matters need no 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, etc. by him of his other lands holden in Soccage, is good only for two parts, and his heir shall be in ward, etc. for the third part. If a man have only a fruitless reversion without rent expectant upon an estate tail, Coo. 11. Re. Henry Harpers Case. 24. Coo. 10. Leon. Lowes Ca 80. or for life of lands holden, etc. and devise but two parts of his other lands holden in Soccage, a third part shall be saved for wardships and primer seisin, etc. By these Statutes. But if the first grant away this reversion, Coo. Leonard Lowes Ca 81. than he may devise all his Soccage land, because at the time of the devise, he is no person having, etc. But if he that hath a remainder, etc. expectant upon an estate tail, or a lease for life of lands holden, etc. 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 person having of such estate in lands holden, etc. as by the common Law yields wardship, and therefore out of the purpose of the Statute, and so note the diversity between a reversion and a remainder upon the Reason of the Cases thereof before, Title Marier, Inheritances which of their nature are not of any certain yearly value, 5. H. 7.36. Coo. 10 Leon. Lowes Case. 82. a. as a Franchise to have felons goods, Court Leetes, waifes, estraies, advowsons, etc. holden of the king, etc. shall restrain 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 rend hat was holden by knight's 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, etc. 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 person having of this land, Coo. 8. Re. Wights. fo. 163. b. because he alone is not owner of this land, and so generally, he that shall be said a person, having of land holden, etc. to be within these statutes, must be sole seized, and not jointly with another. Thirdly, as these words are in these statutes having lands, do import sole ownership of the land holden, Coo. 10. Leon. Low. Ca 82. b. so they do also import and appoint the time of such ownership to be the same instance when he makes disposition or devise of these lands, so that the time of having, holding and disposing aught to concur, where if a man convey to his younger, or to his wife, etc. his lands holden, etc. in Fee simple, Coo. 11. Re. Harper's Case. 24. a. either absolutely, or with power of Revocation, having a third part, which is Soccage land to descend, 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, etc. So if a man have Soccage land, and convey it as Jointure to his wife, etc. and afterwards purchased lands holden, Coo. 10. Leon. Low. Ca 83. b. etc. and devise two parts thereof and dieth, his heir under age, no part of the Soccage land shall be taken to make a third part of the whole for watdship, etc. 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. yearly value, deviseth it to his younger children, or to a stranger, and afterwards purchaseth land holden of the yearly value of 20. li. and dieth, the devise is not good for all the soccage land, because the Will took not effect before his death, and before the land holden, etc. See now the difference between 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 he 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 Will took 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 intent to marry, Coo. 8. Virgil Parker's 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 collateral blood, not being his heir 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 mere stranger, bacause these are not children in judgement of law, and then the conveyance remains 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 child. But if after the father's death, the grandfather conveieth the land to the use of any of his children, there shall be wardship, etc. for a third part, because by the father's death the care of the children is cast upon the grandfather by the law, as of his own 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 conveyed to the wife and children by the said father or grandfather, be levied to her & her husband to her use, of the wife's 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, & therefore 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 son, 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 King's tenant during her life by advancement, and such a remainder which may give wardship of body and land at the Common Law, is only 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 years, and after grants the reversion for life or in tail le remainder in fee to his son, and after the grant for life, or Donee in tail 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 tail, or for life. If the son and heir, or any other son purchase land of his father (bona fide) for money, etc. this is no preferment for the child within these meaning of these Statutes, and therefore there shall be no third part of these lands taken for wardship, or primer seisin, because it was land purchased by the child, 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, etc. 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. & Baker's Case. and preferment of his children, and payment of his debts, he cannot devise the third part thereof, because he had executed his authority before, but if he had aliened two parts to a stranger (bona fide) than 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. etc. 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 conveys two parts for life in tail for advancement of his wife, 35. El. Clem. howard's Case cited in Coo. 10. Re. Leon. Lowes Case. 81. a. etc. 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 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 heir 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. etc. lands to the full yearly 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 casual and uncertain 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, outlaws fines, amerciaments, which have not been accustomably let unto farm for yearly rent, but if they have been so let, than they may be left for the third part. The King or the Lord ought to have his third part immediately after the death of the tenant, But. & Baker's Case. 34. and shall not expect upon any uncertainty, wherefore if a man seized of three acres holden in Capite, etc. leaseth one acre for life, and after deviseth the other two acres, and dies, 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 heir. 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 several Manors holden of three several Lords by Knight's service, Coo. 8. Virgil Parker's Case. 173. b. every Manor being of equal value, he cannot devise two Manors, and leave the third to descend according to the generality of the words of these Statutes, for than he should prejudice the other two Lords of their wardships, but he must devise two parts of every Manor, and leave to descend a third part of every Manor, to make a wardship to every Lord. So if a man seized of land holden, Coo. Virgil Parker. 173. b. etc. disposeth before marriage one moiety for a jointure 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 halves, and not out of the half 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 four other sons like parts, whereof one part only is holden, etc. the third of the whole shall be made up equally out of every several 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 thereof against another-son, as if the father convey land holden, etc. to one son in tail the remainder over to another of his sons in tail or in fee, Coo. 9 Tho. Holts Case. 132. a. and after the father's 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 do 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. calthrop's Case, cited in Coo. 3. Re. But. & Bak. Ca 31. a b etc. of the yearly value of 20. li. and Soccage lands of 10. li. yearly value, he may devise all the lands holden, etc. and leave the Soccage land only to descend for wardship and primer seisin, and the Statutes are satisfied, and the heir shall sue Livery for one of the acres holden, etc. though no land be descended to him, if the land be holden of the King by Knight's service in Capite. So if a man have land only holden, Coo. 10. Leon. Lowes Case 84. b. etc. 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, etc. And note, Coo. 10 Leon. Lowes Ca 84. that to make wardship upon these Statutes, the estate of the Lord holden, aught to continue after the Tenant's death; And therefore if a man have an estate tail only of land holden, and hath Soccage, and dyeth without issue, so that the estate tail is spent, the devise is good for all the Soccage land, so if the land holden be defeated by condition after the Tenant's death. And so the estate of the Tenure ought to continue after the death of the Tenant; Coo. 3. But. & Baker's Case. 34. b. wherefore if the King gives land to one, and his heirs to hold during the life of the Patentee by Knight's 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 Tenant's death, and in the second case, the Tenure to make a wardship commenceth in the son only. Collusion to avoid Wardships. IF Tenant enfeoff his son and heir apparent, St. Marle. b. ca 6. Plo. Com. or his collateral heir apparent, to make him have an estate in land as a purchasor, and so to beguile the Lord of his wardship, because the heir comes not to the land by descent; this is collusion apparent, and manifest against which by the Statute of Marleb. made Anno 32. H. 3. It was provided that the Lord shall notwithstanding have the wardship of his heir. There is also collusion which is not so manifest, as when the Tenant enfeoffs others upon collusion between him and them had for the benefit of the heir, 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 needless, 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, than was by that former. Wherefore before the statute of 34. Inst. fo. 78. a. H. 8. if the father had stepped but a little further, and had made a Feoffement to his son and heir, and to a stranger, although the inheritance were limited to the heirs of his heir, and that the stranger had but an estate for life. Or if the Father had made but an estate for life or tail to his son and heir, 27. H. 8.10. and limited the remainder, and granted the Reversion to another, or had left the Reversion in himself, or if the father had enfeoffed a stranger for the advancement of his younger sons or of his daughter, or for the payment of his debts, and after do enfeoff his heir, in all these cases the Lord had been prevented of the wardship of his Tenant's heir, 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 conveys the land to his son and heir 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 child, 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 seized of an estate of inheritance do by Act executed in his life time, convey by covin to any person his land holden, etc. for, or with divers Remainders over in Fee to a stranger, or to his own right heirs, or shall make by fraud contrary to this Act, any estate, conditions, mesnalties, tenors, or conveyances, to the intent to defraud the King or the Lords of these wardships, etc. which ought to come to them after their tenant's 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. etc. according to the intent of the said Statute, as though no such estates had been made, until 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 distrain and aver for their reliefs, heriots, or other profits, as if no such estates had been 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, etc. 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, etc. to himself, and B. an Infant, and their heirs, this cannot be averrred to be Collusion to avoid wardship, Primer sesin after the death, within the intent of these Statutes, because A. was never sole seized as he ought to be by the provision of these Statutes, and no feoffment which A. can make of his moiety can be averred to be Collusion, because if no feoffement were, no benefit of wardship could accrue person Mort. If the son and heir purchase (bona side) for money, his father's lands holden, Re. 10.83. b. Sir Nicholas Strange's case, cited in Leon. Lowes case. etc. 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. Marriage. THe Tenure of Knight's service as it gives the King or the Lord the wardship of the lands of the heir under age, so it gives him also the custody of the body of the heir male till his age of 21. years, & of the heir female, if she be under the age of 14. years, and unmarried at the death of her Ancestor, till her age of 16. years, whereof see before Sect. 6. Relief. INcident to all manner of Tenors, 14. H. 8.45. & 156. Tenors. Br. Reliefs. be they King or common person, except the Tenure of the King by Fee-farm, which therefore yields no Relief, because the Farm or rent thereof is in the judgement of the Law accounted a full value of the Land, except Tenors in Frank Allo moigne by divine service, and the like. But Relief 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 blossom fall'n from a tree, and it is due immediately upon the death of the Ancestor. The Reason why it is paid, as also the name thereof is given by Brook, thus, Cum homagio facta fuerit, & fidelit. Succ. abillis cum plenitat. existent. oportet statim quod Tenem. quod fuit in manibus Antecessoris, & 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 Relief, as he saith also in another place, Dabit Relevin. qui succedat juri hereditario, non qui acquiret, Brac. fo. a. 11. H. 8.422. 22. Ed. 4. Relief 8. And with this agreeth the current of our books now at this day, and common experience; and this also excludes inheritances which go in succession; and therefore all Corporations, because they never die, so that their land descend not, pay no Relief, Bro. Relief 9 3. H. 4 2. because the successor hath not the land, Jure hereditario, but by prescription; a Corporation may pay no Relief, the heir ought to be of full age at the death of his Ancestor, or else he is not to pay any Relief, Lit. fo. 24. a. b. Mag. Cart. c. 3. as appeareth by Br. and by all other books, and the full age for this purpose as of the heir male of Tenant by Knight's service 15.21. of his heir female 14 as also of the heir of the Tenant in Soccoge his age of 14. hence it is plain, that where the Lord hath the wardship of the heir of his Tenant, that at the full age of the heir he shall have no relief: 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 himself in ward, the other Lords by posteriority at the full age of the heir, shall have no relief, because they had every of them the land holden of themselves in ward. But where the heir 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 heirs full age he shall pay relief to such Lord; as where a man holds his land of the King by Knight's service in Capite, and of other Lords by Knight's service, and dies, his heir being under age, and the King seizeth the wardship, and all his lands which he holds of others, the heir at his full age is to pay relief to the other Lords, because they had no lands in Ward. The relief for a Knight's fee of lands holden by Knight's service in Capite, Inst. 83. b. Lit. fo. 24. b s. 112. Coo. 7. nevil's case. 33. b. t. is the fourth part of the value thereof, viz. 5. li. for a whole Knight's fee, being anciently valued but at 20. li. per annum, And so after the same proportion for a greater and lesser quantity; whereof see before in Tenors. Of land holden by grand Sergeancy, Lit. fo. 35. the relief payable to the King, is the value of the land by the year, above all charges and reprises. The remedy for a subject to get his relief, 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 heir. In the King's case, where relief is due to him, the use is in the writ of Livery, to the heir, and directed to the Escheator to command him to take surety of the heir for payment of the relief, but he seldom or never doth the same: but them of the Exchequer to whom the charge in this kind belongs upon record of the Livery, send out summons against the Tenant for the said Relief, and upon the Sheriffs Return of Nihil, etc. Process of Extent for the same. Of Livery. IF after the death of the King's Tenant in Capite, his heir 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 King's possession, and shall forfeit all the profits of such lands to the King from the time of his intrusion, until 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 be endowed thereof, but for restitution thereunto, and the profits thereof, he is driven to sue to the King for his special grace and pardon. To prevent which penalties, the Law requireth that the heir do (at times) therefore by the Law appointed sue to the King to have such lands re-delivered unto him by his highness, They cannot seize before the office. which is called in Law, saving of Livery, till which be done, the Escheator in the County where the land lies may (to the King's use) seize 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 seizure, and is to be answered of all profits since his Tenant's death, till Livery sued forth, than he doth his homage, and hath the land delivered unto him out of the King's hands, and payeth 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 heir 6.3. month's time for the prosecuting thereof, if the heir 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 heir after the tender dies within the said 6.3. months, 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 determined, as if he had taken homage of the heir when he made his tender, but the mean rates if any were forfeited, are not discharged. And so for the same reason, the heir 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. months, 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. month's end is used to be continued over for 6. more, and so from 6. months to 6. months, as long as the Master of the Wards shall give leave, and in the mean time the heir hath like benefit thereof, as if he had sued his Livery. Livery shall not be sued but where the King's Tenant died seized of lands holden by Knight's service in Capite, Inst. 77. a. or Soccage in Capite. If the Tenure be Knight's 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 Knight's service, or Soccage, or for lands which he hath in 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 Bishopric are in the King's 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 heir of such Tenant shall not sue Livery, nor pay primer seisin, if at the death of his ancestor he be 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 Knight's service. And here in the last case, 20. Eliz. Dyer 362. howbeit when he attains his full age of 14. years he must sue Livery, or else shall lose the mean rates. But be the heir of the Tenant by Knight's 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, though with some difference for the primer seisin, as appears, Title Primer seisin. The time after the death of the King's Tenant for his heir to sue Livery, is of lands in question holden by Knight's service in Capite, be the heir in Ward, and then comes to full age, or be of full age at his ancestors death, then viz. the heir male at 21. the heir female above 14. at the death of the ancestor, then if the possession of the freehold do descend immediately after the ancestors death to the heir, the Livery is to be sued forthwith: If only a reversion do descend, than not till after the death of the particular Tenant, if it be a reversion without rent incident thereunto; howbeit the heir at this day hath election either to sue immediately in the life of the particular Tenant, paving for Primer feisin but half a years 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 years 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 do so, and shall pay for Primer seisin but one year's value of the rent. And the time of the heir of Tenant by Soccage in Capite to sue Livery is, Coo. 9 Hales case 132. b. Re. 9.81. Leon. Lowes case. immediately upon the death of the Ancestor, with the same observation of possession, or Reversion, as is for the heir of the Tenant by Knight's service in Capite, if he be above 14. years of age at the death of his ancestor, and if he be under, than he is to sue no Livery till he be 21. years, as is afore showed. 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 son and heir 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 tendered immediately on his father's 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 entered into Religion, his heir being of full age, his heir should have sued Livery presently, and should not have expected his father's natural death. No Livery can be sued of lands above the yearly value of 5. li. before office found before the Eschator or other Commissioners Stat. 33. H. 8. cap. 22. 14. Ed. 4.5. by virtue of the Kings Writ or Commission derected out of the Chancery or other Courts that have authority to make such writs or Commissions for suing of Livery. But Livery of lands under the yearly 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 certainly 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 special Writ or Commission, in nature of that Writ or Commission to inquire of all wards, or the like. And these Writs or Commissions are of two sorts. These of the first sort are to inquire after the death of the Ancestor of what lands holden of the King, 14. Ed. 4.5. or of others, the Ancestor was seized at the time of his death, the value, the day when he died, who is next heir, and of what age, of this kind are diem claus. extremum, which is sued within a year after the ancestors death. Memorandum, Stam. prae. Rs. 52. F.N.B. 253. c. if there be no suit made within the year after the ancestors death, and upon these writs the Jury ought to inquire, who took the profits since his death. Deneverunt, Ibidem. whether the Ancestor died in ward to the King. Or Commissions of the nature of these Writs. These of the second sort are such as issue upon some defect in offices, and found upon the five first writs of this kind, are Qua plura, F.N.B. 255. where some of the Ancestors lands are left out. Melius inquirendum, Inquired upon some defect in the former office. But if the heir were of full age at his Ancestors death, and so found by office, than he shall have Livery upon that office without any estate probanda. Datum est nobis intelligi, where after the delivery of the writ, and before office found before the Escheator dieth, or is removed from his place. But now these Writs or Commissions since the erecting of the Court of Wards may pass out of the Chancery or other Courts having authority to make them, Stat. 33. H. 8. cap. 22. & by warrant or bill signed and subscribed by the Master Surveyor & Attorney and receiver, of the Court of Wards, or one of them, directed to the chancellor of England or other chancellor or officer having power to award such writs; if upon office found upon any of these writs, the heir be found under age, and in ward, & after do accomplish his full age, F.N.B. 254. a. 257. he must have a writ of Estate probanda, to prove himself of full age before he shall have Livery. But if the Tenant be found within age, 13. H. 4.6. & in ward, and after his full age other lands descend to him, which the King seizeth, by an office that finds the heir of full age, he must sue an estate probanda by reason of that office which found him within age, which is the best Record for the King. If general Livery, or Ouster le maine be not rightly pursued according to the order of Law, Stam. prae. Rs. 12. a. infra title Ouster le main the King may receive the land without any process and shall be answered of all the mean profits from the suing of the Livery. A livery is not rightly pursued according to the order of law when it is sued by percells, 35. H. 6. Liv. 19 as if the heir sue Livery but of part of that which is found by office, as where the Ancestor had lands in several counties, if the heir sue a general Livery before office found in every county where he hath land, omitting them in the Livery, the Livery is void, and the King may have relief; whereof see a whole Title in Stamf. Praerog. Regis, fo. 8.6. etc. But in some case a Livery may be sued of parcel, 38. H. 6.9. a. as where land descends to two daughters, one of the full age, the other under age, she of the full age shall have the Livery with a partition suitable of all things, and this Livery is well sued, though it be not of all the land descended; but things not severable, as advowsons, or the like, must still remain in the King's hands till the other daughter be of full age. And note, Stam. prae. Rs. ca 5. fo. 22. that between Coparceners the King upon the Livery always makes partition, and this is for the King's benefit, in that upon partition every one shall have a part of the land holden in Capite, for if any of them should have for her part the lands holden of others only, than the King shall lose his prerogative in that part for ever; wherefore in the writ of Livery in such case, there is a proviso, that every of them should have for part, parcel of the lands holden in Capite. When two are found heirs by one Title, 1. H. 7.28. be they twins male, and found heir by the same office, divers men by several offices are found heirs to the same ancestor, and by the same title there, because it is doubtful to the King to whom to make a Livery, until the certainty and the verity be discussed between them; then his highness ought to make a Livery to him that is proved to be the true heir to the common ancestor; the manner of this trial is by Interpleader, and in what cases it shall be, and in what not, you may see at large in Stamf. prae. Rs. fol. 51. 65. & 66. b. The manner of suing a general Livery may be seen in N. B. 258. viz. Samf. prae. Rs. 79. 80. and for this purpose see also the Statute 33. H. 8. c. 22. But at this day general Liveries are out of use, Stam. prae. Rs. 67.2. Inst. 77. a. and for the most part men use to sue special Liveries, which contain in them a pardon for all entries, intrusions, issues, profits, and likewise to dispense with all misusing which may happen upon a general Livery, etc. But these books must be understood where the lands are found in the office to be above 20. li. yearly value, for otherwise general Liveries are most in use. Thus speak our books, but by the common experience of the Court of wards, and liveries since the Stat. of 33. H. 8. c. 2. are distinguished, and sued in this manner, viz. A general Livery under value, which is when the land whereof Livery is to be sued, is found by the office not to exceed 5. li. per annum, and the less fees are appointed by the said Statute for the suing forth thereof. A general Livery above value, viz. when the land is found by office to be above 5. li. yearly value, and under twenty pounds per annum, and then greater fees are allowed by the said Statute, and upon suing either of those Liveries, no other Primer seisin is paid then the mean profits of the lands, enured from the ancestors death to the suing of the Livery, according to the description thereof by the Stat. Prae. Rs. cap. 3. See before Title Primer seisin; which mean profits may also be saved by tender of the Livery, and so the King hath nothing for Primer seisin. And lastly, a special Livery which the Court of Wards says aught not to be sued, unless the land be above the yearly value of 20. li. found by office, and if a man will sue a special Livery for lands of a less value, he must confess his land to be above that value. Howbeit, the law is taken otherwise in our books, where mention is of a special Livery, without speaking of the value of the land, and reason proves it may be so called, because it contains a special pardon of all entry, intrusions, mean rates, etc. which may well be granted upon a lesser quantity of lands, as upon a greater, and upon this special Livery, no primer sesin other than the said mean profits is taken by the name of a primer seisin, but they use to take a sum of money to the King's use by the name of a fine for his Majesty's special grace, and pardon vouchsafed to his Majesty's Subjects by the faid special liveries to be sued of, and in possession, and the heir hath not him in ward, or if the livery be so sued of, and in possession, and the heir hath not been in ward; or if the livery be to be sued of a Reversion half a years value, which agreeth by the common proportion above in the books, named primer sesin, and upon tender of any of these Liveries, they shall use to take a bond, for that shall be due to the King upon Livery sued for fear of the heirs death within six months before the Livery sued out; and note, that a special Livery gives the heir licence to enter and take the profits of the lands immediately without suing any writ of aetate probanda, as if a Livery had been thereof sued, and pardons all issues, mean rates and profits of the lands, but yet the same are paid before he can have such livery and pardons, all entries and entrasions by the heir, or any his Ancestors, and fines for alienations without licence, and yet they of the Exchequer notwithstanding such Livety use to send process to the Sheriff to seize the land after such alienation, and to compel the heir to pay a fine, and to sue a pardon for such alienation without licence, so that the benefit of a special livery above a general, as I conceive is little other than that the heir thereby avoids the trouble and charge of suing his writ de aetate probanda, and prevent the danger of misusing his Livery, and by consequence the reseising of this land without great inconveniences, they appear in part in this Title, and more amply, Praerog. Rs. foe. 19 80, 81. etc. Ouster le main. Is in all other cases where Liveries is not to be sued, as where the Land is holden to be in common Knights Service of the King, as of some Honour, Manor, Castle, etc. and the heir within age, no Livery shall be sued; and yet because no man may enter upon the King's possession without his leave, the heir at his full age shall sue an Ouster le main cum exitibus: but in the first year of Queen Elizabeth, Inst. fo. 77. a. 1. Eliz. Dyer 168. a. it was questioned in the Court of Wards, whether it should be a Livery Cum exitibus, or an Ouster le maine, and there agreed, that Ouster le main is only of Lands in the King's hands holden of others then of the King, but yet ordered, that a Livery in this case una cum exitibus should be granted by the name of Ouster le maine, because the course of that Court was so by the space of 30. years before; where note, that no mean rates shall be forfeited for land holden of the King by common Knights service, though there be no tander of Livery, which is the reason why Ouster le main is granted cum exitibus. So if the Escheator claim land by virtue of dying, etc. before office, Stat. de escheator. mode 29. E. 1. and after by the office no title is found for the King, the party that ought to have again the land shall have an Ouster le main cum exitibus. So if the escheator will seize land found by office to be holden of the Archbishop of Canterbury, or of such other person as are exempt in the first Chapter of the Statute deprae. Rs. they shall have an Ouster le main cum exitibus. So of lands holdan in Capite, if a Lease be made for life the Remainder over to a stranger, and Tenant for life dies, this matter being found by Office, if the King seize the Land, he in the Ramainder shall have an Ouster le main cum exitibus. So where two hold land jointly of the King in Capite, F. N. B. 257. g. and one dyeth, and the matter is found by office, which notwithstanding the King seizeth the land, the Survivor shall have an Ouster le main cum exitibus. So if the heir of Tenant in Soccage in Capite be under the age of fourteen years at his ancestors death, 35. H. 6.52. F. N. B. 256. c. Stam. prae. 12. b. and the matter is found by office, and yet the Escheator seizeth the land for a primer seisin, le procheine de kin to the heir, shall have an Ouster le maine cum exitibus, but yet in that case after the 14. the Escheator may seize, and the heir must have Livery, and for want of tender thereof, he shall lose mean rates from his age of 14. So if Tenant by Soccage in Capite die also seized of other lands holden of other Lords then of the King by Knight's service or Soccage, 45. Ed. 3.19. a. 4. Eliz. Dyer 213. which descend to the heir under age, and after office thereof found, the Escheator seizeth the lands into the King's hands, the Lord of whom the land is holden by Knight's service in the one case, and procheine kin in the other case shall have the lands out of the King's hands by Ouster le maine cum exitibus; And if the heir be of full age at his Ancestors death he himself in both cases shall have the Ouster le main. And generally in all cases whereupon the matter is discussed, Stam. prae. Rs. fo. 77.6. et 82. 21. H. 7.5. 29. Ass. 43. it appeareth either upon the return of the office, or upon trover monstrous de droit ou petition de droit and the like, as the cause shall require, that the King had no right or title to the thing he seized, there judgement is given that the King's hands shall be amoved, and thereupon the writ of Amoucas manus or Ouster le main is awarded to the Escheator. By the Common Law the Ouster le main was never awarded una cum exitibus though it did so plainly appear that the King ought not to have seized, Art. Sup Ca 19 29. Ed. 1. Statute de Escheator but this was the help by two Statutes in the 28. and 29. years of King Ed. 1. by which was provided that where land is seized into the King's hands without just cause the profit thereof in the mean time shall be wholly restored to him that ought to have had the land, and hath received the damages upon Ouster le main cum ixitibus. But if by the same Stat. of Ed. 1. it is provided that if after such Ouster le main cum exitibus, a title doth appear for the King in Chancery, King's Bench, Exchequer, etc. whereby the King is entitled of a title grown before the Ouster le main, although the party could have had no Ouster le maine if the Records had then appeared without avoiding them, yet in that they did not then appear, he should not be now cast out of possession, without a Scire facias against him, upon which if he be warned, and do not come, or cometh and say nothing against the King's Title, the land shall be reseised, and the King reseised, & the King answered of the profits from the time of the first office, though this Statute make no mention of Livery, but only of Ouster le main; yet by equity Liveries are taken to be within the meaning thereof; And here note this difference, that in the cases last mentioned, no seisin shall be before Scire facias, and against the party, yet in the case above, and Title Liveries; of a livery the King he may reseise without office, whereof see at large Title Reseisor, in Stamf. prae. Rs. 856. Office. 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 King's revenue to find his Title, and as a matter of Record, requisite by. law to give the King an actual 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. To pursue which Descriptions. OFfices concerning Wardships, 4. Ed. 4.24. 33. H. 8. c. 22. of which only I speak, the Escheator may find as well by office, as Virtute brevis, but with this difference, Added by Statute, that if the land whereof the office is to be found, be of 60. pound yearly value or above, and holden of the King, the Escheator forfeits 5. pounds if he 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 Chancellor 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 several 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 go forth no more writs of the same kind to inquire 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, that they are holden of other services, that the Tenant was seized of another estate, that these are more heirs or other heirs than were found in the first office, or where by the first office the heir was found within age, where indeed, the Tenant died without heir, so that the land ought to escheat, or where by the first office one is found heir of full age, where he was under age, and generally where his highness hath a better Title than was found for him by the first office, a Melius inquirendum may be awarded in the King's behalf. 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 entitle 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 which 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 jur. ignorant. And thereupon the, Melius awarded, it is found that the tenure of a subject, and all other points uncertain, as the Tenure, the State, the Value, etc. 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 seized by office, the seisin, the office remains till it be 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 main. 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 do appear by the examination of the Escheator that hath upon such office seized the lands into the King's 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. Saddler's case. 5.7. 18. El. ca 12. and from thence to the Clerks of the Bag transcripted into the Exchequer, and into the Court of Wards, but offices found Virtute officii, without any. Writ or Commission, the Escheater may at his choice return 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. Saddler's case. 59 it relates to the time of the ancestors death, and gives the King all the mean profits of his land for that time, because the King hath the wardship Ratione prioris tituli, viz. by reason of his signory, and loseth his rent and services in the mean time. But an office to entitle the King to an Idiot, Coo. 8. p. Comsors' case. 180. relates for the mean profits and the land no further than the finding the office, because the King hath the custody of an Idiot, Jure protectionis Rege, protection cometh by the office found, and not before; but yet for avoiding of mean conveyances of his land made by the Idiot, the office hath relation to the Idiots Nativity. An office is requisite to be found after the death of the King's Tenant for two causes, 4. Eliz. Dyer 3: 1. H. 7.19. etc. Coo. 9 P. Sir Geo. Reynolds case 95. b. first for the dignity of the King's person, who cannot take nor departed with any inheritance or freehold but by matter of record. Secondly because it puts the King presently upon the office found in actual and full possession of the Wards, lands, and the profits thereof since his Ancestors death before any service or entry by the Escheators, which actual 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 seizure of his Escheators before office reduce to an actual possession, sufficient to enable him to keep the lands in his own hands, and to take the profits thereof, yet he hath not till office be found a perfect actual 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 Month after, unless it be to him that tendereth his traverse, the same office shall be void. But the Master of the Wards may within that month after office make a release of Wards or Idiots lands to other than he that tenders a Traverse being enabled thereunto by the Stat. Stat. 32. H. 8. Ca 46. 32. H. 8. which is general, and a latter Statute 18. Hen. 6. This seems to be the reason why our books say that in case of Wardship of land the King is presently by the office in possession before seizure, Coo. 1. p. Sir. Geo. Cursons ca 956. that he hath not possession till office, and that at this day the Escheator cannot seize any lands into the King's hands for Wardship or other cause before the king's 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 seizure to grant the lands before office found, Coo. 8. Paris Stoughtons' case 169. for to all other purposes it seems not against law that the Escheator may at this day seize a Wards lands before office as the words of the diem directed him to do, and as many books warrant, whereof see Stamf. Prae. Rs. foe. 12.14.78. b. But because before office it is doubtful whether the King have Title or no, the Es●hraters do generally of their own discretion ever since the Statute of Lincoine 79. E. 1. forbear to seize before office, thereby to avoid the King's great trouble in suing the Ouster le maine, which he was driven to do by the Escheators seizure only, though afterwards the office found did not entitle 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 Tenant's death in possession of the body of his Ward in right of his signory, 30. H. 6. Br. Patents 74. 11. Ed. 4.7. and may grant away the Wardship thereof, before or after seizure, 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 books and common experience agree. What words in Offices make a Tenure. See before Title Tenure. BUt by that which hath been said it may be collected how great inconveniences may issue as well to the King by suppressing his Tenors, and consequently withdrawing one of his ancientest revenues of the Crown 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 several penalties, concerning an upright and just demeanour therein, as well by the King's Ministers, as Jurors, and the parties whom it may concern. 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 towns openly, and by men of good fame, and impanelled by the Sheriff, and having sufficiently in the same County, and by Indenture between the Escheator and the Jurours shall be void. 33. H. 6.17. 33. H. 8.2. Escheators ought to find offices by virtue of writs within one month after the receipt thereof, and in good towns, and in open places; and shall take no fees therefore but 40. shillings for executing every writ. Escheators ought to be men of 40. marks per annum at the least, 1. H. 8.8. except Escheators in Cities, Towns, and Counties Palatine of Lancaster and Chester. Escheators or Commissioners shall not return any office not found by the oaths of 12. men, and indented, and by them sealed. Every man shall be admitted by the Escheators, etc. to give evidence openly in his presence, at the finding of offices. Escheators, etc. aught to receive offices found by the Jury without delay, and to deliver, the Counterpart thereof indented and sealed by himself to the Jury, and the rest with the foreman of the Jury, to the end that the Escheators may not imbecile or change such offices. Stat. 8. H. 6. Ca 16. 18. H. 6.7. All offices are to be returned in the Chancery or Exchequer within one Month 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. days after receipt, and are thence to be transcripted into the Court of Wards, as above is set forth. Tenant for years, 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 been found, which before this Statute he could not have. Where an heir 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 heir under age be found to be of lesser age than 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. FINIS.