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except treason

now taken away, 1. In

in divers other

the stat. of

are to allow

soners without

them to the

of the diocess might, if he would, claim him as a issue of the fact is to be tried by a jury of twelve clerk, and he was to see him tried in the face of the men of the county, where it is supposed by the court whether he could read or not. The book was plaintiff to be done, and for that purpose the judges prepared and brought by the bishop, and the judge of the court do award a writ of Venire facias in was to turn to some place as he should think meet; the king's name to the sheriff of that county, and if the prisoner could read, then the bishop was commanding him to cause four and twenty disto have him delivered over unto him, to dispose of creet freeholders of his county, at a certain day, in some places of the clergy as he should think to try this issue so joined ; out of which four and meet: but if either the bishop would not demand twenty only twelve are chosen to serve. And that him, or that the prisoner could not read, then was double number is returned, because some may make he to be put to death.

default, and some be challenged upon kindred, alAnd this clergy was allowable, in the liance, or partial dealing. Clergy allowed anciently in

ancient times and law, for all offences, These four and twenty the sheriff doth name and all otlences, whatsoever they were, except treason, certify to the court, and withal, that he hath warned and robbing of and the robbing of churches of their them to come at the day according to their writ. churches;

goods and ornaments. But by many But because at the first summons there falleth no

statutes made since, the clergy is taken punishment upon the four and twenty if they come murder. 2. In burglary. away for murder, burglary, robbery, not, they very seldom or never appear upon the 3. Robbery. purse-cutting, horse-stealing, and divers first writ; and upon their default there is another 4. Purse-cutting: 5. Horse- other felonies particularized by the writ* returned to the sheriff, comstealing, and

Distringas. statutes to the judges; and lastly, by manding him to distrain them by their The manner offences. By a statute made 18 Elizabeth, the judges lands to appear at a certain day ap- of justices of 18 E. judges

themselves are appointed to allow clergy pointed by the writ, which is the next circuits. The

to such as can read, being not such term after, “ Nisi prius justiciarii nos- judges hold in clergy, and to see them burn- offenders from whom clergy is taken tri ad assisas capiendas venerint," etc.

the taking of ed in the hand,

Nisi prius. and to dis

away by any statute, and to see them of which words the writ is called a charge the pri: burned in the hand, and so discharge Nisi prius, and the judges of the circuit of that delivering them, without delivering them to the county in that vacation, and mean time, before the bishop

bishop; howbeit, the bishop appointeth day of appearance appointed for the jury above,

the deputy to attend the judges with a here by their commission of Nisi prius have authobook to try whether they can read or not.

rity to take the appearance of the jury in the county The third commission that the judges of circuits before them, and there to hear the witnesses and have, is a commission directed to themselves only, proofs on both sides, concerning the issue of the and the clerk of assize, to take assizes, by which fact, and to take the verdict of the jury, and akainst they are called justices of assize ; and the office of the day they should have appeared above, to return those justices is to do right upon writs called as the verdict read in the court above, sizes, brought before them by such as are wrong- which return is called a Postea. fully thrust out of their lands. Of which number And upon this verdict clearing the matter in fact, of writs there was far greater store brought before one way or other, the judges above give judgment them. in ancient times than now; for that men's for the party for whom the verdict is found, and for seisins and possessions are sooner recovered by seal. such damages and costs as the jury do assess. ing leases upon the ground, and by bringing an By those trials called “ Nisi prius,” the juries ejectione firme, and trying their title so, than by the and the parties are eased much of the charge they long suits of assizes.

should be put to, by coming to London with their The fourth commission is a commis- evidences and witnesses ; and the courts of West

sion to take Nisi prius, directed to minster are eased of much trouble they should have,

, rected to two none but to the judges themselves, and if all the juries for trials should appear and try judges, an

their clerks of assizes, by which they their causes in those courts; for those courts above are called justices of Nisi prius. These have little leisure now. Though the juries come

Nisi prius happen in this sort; when not up, yet in matters of great weight, or where the a suit is begun for any matter in one of the three title is intricate or difficult, the judges above, upon courts, the king's bench, common pleas, or the ex information to them, do retain those causes to be chequer here above, and the parties in their plead tried there, and the juries do at this day, in such ings do vary in a point of fact; as for example, if cases, come to the bar at Westminster. in an action of debt upon obligation the defendant The fifth commission that the judges 5. Commisdenies the obligation to be his debt; or in any action of in their circuits do sit by, is the comtrespass grown for taking away goods, the defend- mission of the peace in every county of peace. The ant denieth that he took them; or in action of the their circuit. And all the justices of justices of the case for slanderous words, the defendant denieth the peace, having no lawful impediment, sheriff are to that he spake them, &c. Then the plaintiff is to are bound to be present at the assizes judges in their maintain and prove that the obligation is the de to attend the judges, as occasion shall county. fendant's deed, that he either took the goods or spake fall out; if any make default, the judges may set the words: upon which denial and affirmation the a fine upon him at their pleasure and discretions. law saith, that issue is joined betwixt them, which | Also the sheriff in every shire through the circui is

Postea.

4. Commission to take

the clerk of the assize. Nisi Prius.

sion is a commission of the

man

of him, ex

gious and church lands. 2. The lands

to attend in person, or by a sufficient deputy allowed pay the rent, perform the conditions, and do no by the judges, all that time they be within the waste: and he may by deed assign it to whom he county, and the judges may fine him if he fail, or please in his life-time. But if he die before he asfor negligence or misbehaviour in his office before sign it over, then it shall go again to whomsoever them, the judges above may also fine the sheriff, for first entereth and holdeth; and so all the life of B. not returning, or not sufficient returning of writs be so often as it shall happen. fore them.

Likewise, if any man doth wrongfully enter into

another man's possession, and put the right owner Property in lands, how gotten or transferred.

of the freehold and inheritance from it, he thereby I. By entry.

getteth the freehold and inheritance by disseisin, II. By descent.

and may hold it against all men, but him that hath III. By escheat.

right, and his heirs, and is called a disseisor. Or IV. Most usually by conveyance.

if any one die seised of lands, and before his heir

doth enter, one that hath no right doth enter into I. Property by entry is, where a the lands, and holdeth them from the right heir, he Or the proper. ty of lands to man findeth a piece of land that no is called an abator, and is lawful owner against all be gained by other possesseth, or hath title unto, and men but the right heir.

he that so findeth it doth enter, this en And if such person abator or disseisor, so as the try gaineth a property. This law seemeth to be disseisor hath quiet possession five years next after derived from this text, “ Terram dedit filiis homi- | the disseisin, do continue their possession, and die num,” which is to be understood, to those that will seised, and the land descend to his heir, they have till and manure it, and so make it yield fruit : and gained the right to the possession of the land against that is he that entereth into it, where no him that hath right, till he recover it by fit action All lands in

had it before. But this manner of real at the common law. And if it be not sued for England were gaining lands was in the first days, and at the common law, within threescore years after or's, and held is not now of use in England, for that the disseisin, or abatement committed, the right

by the Conquest all the land of this owner hath lost his right by that negligence. And cept, 1. Reli

nation was in the Conqueror's hands, if a man hath divers children, and the elder, being

and appropriated unto him ; except a bastard, doth enter into the land, and enjoyeth it of the men of religious and church lands, and the lands quietly during his life, and dieth thereof so seised, Kent.

in Kent, which by composition were his heirs shall hold the land against all the lawful left to the former owners, as the Conqueror found children, and their issues. them; so that none but the bishoprics, churches, and the men of Kent, can at this day make any II. Property of lands by descent is, Property of greater title than from the Conquest, to any lands where a man hath lands of inheritance lands by dein England. And lands possessed without any and dieth, not disposing of them, but such title, are in the crown, and not in him leaving it to go, as the law casteth it, upon the Land left by

that first entereth; as it is in land left | heir. This is called a descent in law, and upon the sea belong- by the sea; this land belongeth to the whom the descent is to light, is the question. For eth to the king.

king, and not to him that hath the which purpose, the law of inheritance preferreth lands next adjoining, which was the ancient sea the first child before all others, and amongst chilbanks. This is to be understood of the inheritance dren the male before the female ; and amongst of lands, namely, that the inheritance cannot be males the first born. If there be no children, then gained by the first entry. But an estate for another the brother; if no brother, then sisters; if neither man's life by occupancy, may at this day be gotten brothers nor sisters, then uncles, and for lack of by entry. As a man called A. having land conveyed uncles, aunts; if none of them, then cousins in the unto him for the life of B. dieth without making nearest degree of consanguinity, with these three any estate of it, there, whosoever first entereth into rules of diversities. 1. That the eldest

of descent: the land after the decease of A. getteth the property male shall solely inherit; but if it come

three rules. in the land for time of the continuance of the estate to females, then they being all in an which was granted to A. for the life of B. which B. equal degree of nearness shall inherit all together, yet liveth, and therefore the said land cannot revert and are called parceners, and all they make but one till B. die. And to the heir of A. it cannot go, for heir to the ancestor.

2. That no Brother or sisthat it is not any estate of inheritance, but only an brother or sister of the half blood shall ter of the half estate for another man's life ; which is not descendinherit to his brother or sister, but as inherit to bis able to the heir, except he be specially named in a child to his parents: as for example, brother or sis. the grant, namely, to him and his heirs. As for if a man have two wives, and by either a child to his the executors of A. they cannot have it, for it is not wife a son, the eldest son over-living

parents. an estate testamentary, that it should go to the exe- his father, is to be preferred to the inheritance of cutors as goods and chattels should, so as in truth the father, being fee-simple : but if he entereth and no man can entitle himself unto those lands; and dieth without a child, the brother shall not be his therefore the law preferreth him that first entereth, heir, because he is of the half blood to him, but the

and he is called occupans, and shall uncle of the eldest brother or sister of the whole Occupancy.

hold it during the life of B. but must | blood : yet if the eldest brother had died, or had

scent,

Descent.

cheat. Two causes of es

not entered in the life of the father, either by such | debt of his ancestor do not deal clearly with the entry or conveyance, then the youngest brother court when he is sued, that is, if he

Heir charged should inherit the land that the father had, although come not in immediately, and by way for his false

plea. it were a child by the second wife, before any of confession set down the true quan

daughter by the first. The third rule tity of his inheritance descended, and so submit

about descents: The land purchased so himself therefore, as the law requireth, then that by the party himself that dieth, is to be inherited; heir that otherwise demeaneth himself, shall be first, by the heirs of the father's side ; then, if he charged of his own lands or goods, and of his have none of that part, by the heirs of the mother's money, for this deed of his ancestor. As for side. But lands descended to him from his father example ; if a man bind himself and his heirs in an or mother, are to go to that side only from which obligation of one hundred pounds, and dieth leaving they came, and not to the other side.

but ten acres of land to his heir, if his heir be sued Those rules of descent mentioned before are to upon the bond, and cometh in, and denieth that he be understood of fee-simples, and not of entailed hath any lands by descent, and it is found against lands; and those rules are restrained by some par-him by the verdict that he hath ten acres; this heir

ticular customs of some particular shall be now charged by his false plea of his own Customs of certain places.

places : as namely, the customs of lands, goods, and body, to pay the hundred pound,

Kent, that every male of equal degree although the ten acres be not worth ten pound. of childhood, brotherhood, or kindred, shall inherit equally, as daughters shall, being parceners; and in III. Property of lands by escheat, is

Property of many borough towns of England, the custom allows where the owner died seised of the lands lands by eseth the youngest son to inherit, and so the youngest in possession without child or other daughter. The custom of Kent is called, Gavelkind. heir, thereby the land, for lack of other cheat. 1. BasThe custom of boroughs, Burgh-English.

heir, is said to escheat to the lord of tainder of And there is another note to be observed in fee- whom it is holden. This lack of heir treason,

felony simple inheritance, and that is, that every heir happeneth principally in two cases : having fee-simple land or inheritance, be it by com. First, where the land's owner is a bastard. Secondly, mon law or by custom, of either Gavelkind or Burgh- where he is attainted of felony or treason. For English, is chargeable, so far forth as the value neither can a bastard have any heir, except it be his thereof extendeth, with the binding acts of the own child, nor a man attainted of treason, although ancestors from whom the inheritance descendeth : it be his own child. and these acts are collateral encumbrances, and the Upon attainder of treason the king is

Attainder of reason of this charge is, “ Qui sentit commodum, to have the land, although he be not treason enti.

sentire debet et incommodum sive onus.” the lord of whom it is held, because it though lands Every heir having land is As for example, if a man bind himself is a royal escheat. But for felony it is be not holden bound by the and his heirs in an obligation, or do not so, for there the king is not to have wise in attainof his ances- covenant by writing for him and his the escheat, except the land be holden der for flery. tors, if he be named.

heirs, or do grant an annuity for him of him: and yet where the land is not the king shall

and his heirs, or do make a warranty of holden of him, the king is to have the land, binding him and his heirs to warranty : in all land for a year and a day next ensuing vastum. these cases the law chargeth the heir after the the judgment of the attainder, with a liberty to comdeath of the ancestor with this obligation, covenant, mit all manner of waste all that year in houses, garannuity, and warranty: yet with these three cautions : dens, ponds, lands, and woods. first, that the party must by special name bind him- In these escheats two things are self and his heirs, or covenant, grant, and warrant especially to be observed; the one is, the Inescheats, 1. for himself and his heirs; otherwise the heir is not tenure of the lands, because it directeth 2. The man.

to be touched. Secondly, that some the person to whom the escheat belong- tainder. Dyer, 114. Plowd.

action must be brought against the eth, namely, the lord of the manor of

heir, whilst the land or other inherit- whom the land is holden. 2. The manner of such ance resteth in him unaliened away: for if the attainder which draweth with it the escheat. Conancestor die, and the heir, before an action be cerning the tenure of lands, it is to be understood, brought against him upon those bonds, covenants, or that all lands are holden of the crown either mediwarranties, do alien away the land, then the heir is ately or immediately, and that the escheat apperclean discharged of the burden; except the land taineth to the immediate lord, and not to the mediwas by fraud conveyed away of purpose to preventate. The reason why all land is holden of the

the suit intended against him. Thirdly, crown immediately, or by mesne lords, is this : Dyer, 149.

that no heir is farther to be charged The * Conqueror got by right of Plowd.

than the value of the land descended conquest all the land of the realm into queror got all unto him from the same ancestor that made the his own hands in demesne, taking from the realm into instrument of charge, and that land every man all estate, tenure, property,

his hands, Day and

and reserved Pepp's case.

also, not to be sold out-right for the and liberty of the same, except religious rents and debt, but to be kept in extent, and at a and church lands, and the land in

Knight's ser. yearly value, until the debt or damage be run out. Kent; and still as he gave any of it vice in capite Nevertheless, if an heir that is sued upon such a

out of his own hand, he reserved some tuted.

have but annum,

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ner of the at

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The Con

services

first insti.

VOL. I.

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tion in

vice.

seisin.

vice. 3. Homage and

or in the reservation of services.

that his te nant should

Also he pro

to war.

retribution of rents, or services, or both, to him † The fourth institution was that for and to his heirs; which reservation is that which is recognition of the king's bounty by was for recorcalled the tenure of land.

every heir succeeding his ancestor in nition of the The reserva

In which reservation he had four in those knight's service lands, the king ty, every heir

stitutions, exceeding politic and suitable should have primer seisin of the lands, to pay one knight's serto the state of a conqueror. which is one year's profit of the land; of the lands

called primer First, Seeing his people to be part and until this be paid, the king is to !, Marriage of Normans, and part Saxons, the Nor- have possession of the land, and then Horse for ser- mans he brought with him, the Saxons to restore it to the heir; which continueth at this

he found here: he bent himself to con- day in use, and the very cause of suing livery, and fealty. 4. join them by marriages in amity, and that as well where the heir hath been in ward, as Primer seisin. The policy of for that purpose ordained, that if those otherwise. the Conquer- of his nobles, knights, and gentlemen, These before mentioned be the rights

to whom he gave great rewards of lands, of the tenure, called knight's service in in capite is a

should die, leaving their heir within capite, which is as much to say, as tenure de perage, a male within twenty-one, and a female within tenure de persona regis; and caput Tenants by fourteen years, and unmarried, then the king should being the chiefest part of the person, it stand serjeanhave the bestowing of such heirs in marriage in such is called a tenure in capite, or in chief. relief at the

full age of a family, and to such persons as he should think And it is also to be noted, that as this

every heir, meet; which interest of marriage went still implied, tenure in capite by knight's service which was one and doth at this day in every tenure called knight's generally was a great safety to the of the lands so service.

crown, so also the Conqueror instituted held ultra re:

priss. Grand The second was, to the end that his other tenures in capite necessary to his serjeanty. Reservation

Petty serpeople should still be conserved in war estate; as namely, he gave divers lands

jeanty. like exercises, and able for his defence. to be holden of him by some special keep a horse of service, When therefore he gave any good por- service about his person, or by bearing some special and serve upon him

tion of lands, that might make the party office in his house or in the field, which have himself when, of abilities or strength, he withal re. knight's service and more in them, and these be the king went

served this service, that that party and called tenures by grand serjeanty.

his heirs having such lands, should keep vided upon the first gift of lands to have revenues a horse of service continually, and serve upon him by continual service of ploughing his land, repairing himself when the king went to wars ; or else, his houses, parks, pales, castles, and the like. And having impediment to excuse his own person, should sometimes to a yearly provision of gloves, spurs, find another to serve in his place : which service of hawks, horses, hounds, and the like; which kind of horse and man is a part of that tenure called reservations are called also tenures in chief, or in knight's service at this day.

capite of the king, but they are not by knight's But if the tenant himself be an infant, the king service, because they required no personal service, is to hold this land himself until he come to full age, but such things as the tenant may hire another to finding him meat, drink, apparel, and other neces- | do, or provide for his money. And this

The institusaries, and finding a horse and a man with the over tenure is called a tenure by socage in tion of socage plus, to serve in the wars, as the tenant himself capite, the word soca signifying the in capite, and should do if he were at full age.

plough; howbeit in this latter time, the turned into But if this inheritance descend upon a woman service of ploughing the land, and of money-rent. that cannot serve by her sex, then the king is not harvest works, is turned into money-rent, for that to have the lands, she being of fourteen years of age, the kings do not keep their demesne in their own because she is then able to have a husband that hands, as they were wont to do; yet what lands may do the service in person.

were de antiquo dominio coronæ, it well appeareth The third institution was, that upon in the records of the exchequer called the book of 3. Institution

every gift of land the king reserved a Doomsday. And the tenants in ancient demesne

vow and an oath to bind the party to have many immunities and privileges at this day, nants by his faith and loyalty : that vow was that in ancient times were granted unto those tenants knight's ser. vice vow,

called homage, the oath fealty. Ho- by the crown ; the particulars whereof are too long 1. Homage. mage is to be done kneeling, holding to set down. 2. Fealty

his hands between the knees of the lord, These tenures in capite, as well that by socage as saying in the French tongue, I become your man of the others by knights service, have this property; life and limb, and of earthly honour. Fealty is to that the tenants cannot alien their lands without take an oath upon a book, that he will be a faithful licence of the king; if they do, the king is to have tenant to the king, and do his service, and pay his a fine for the contempt, and may seize the land, and rents according to his tenure.

retain it until the fine be paid. And the reason is, Aid money to make the king's eldest son a knight, or to by knight's service: when his Majesty made a voyage royal marry his eldest daughter, is likewise due to his Majesty to war against another nation, those of his tenants that did not from every one of his tenants in knight's service, that hold by attend him there for forty days with horse and furniture fit for a whole fee 20s, and from every tenant in socage, if his land service, were to be assessed in a certain sum by act of parliabe worth twenty pound per annum, 20s.

ment, to be paid unto his Majesty; which assessment is called † Escuage was likewise due unto the king from his tenant escuage.

of the Conqueror was, that his te.

tenant,

socage in

were at first

because the king would have a liberty in the choice park paled, and the like: and for that end he would of his tenant, so that no man should presume to enter give some lesser parcels to sundry others, of twenty, into those lands, and hold them, for which the king thirty, forty, or fifty acres: reserving the service of was to have those special services done him, without ploughing a certain quantity, or so many days of the king's leave; this licence and fine, as it is now his land, and certain harvest works or days in the digested, is easy and of course.

harvest to labour, or to repair the house, park-pale, There is an office called the office of or otherwise, or to give him for his provision, Office of alienation. A li alienation, where any man may have a capons, hens, pepper, cummin, roses, gilliflowers, cence of alien- licence at a reasonable rate, that is, spurs, gloves, or the like: or to pay to him a ceration is the third part of at the third part of one year's value of tain rent, and to be sworn to be his faithful tenant, one year's value of the the land moderately rated. A tenant which tenure was called a socage tenure, and is so land mode in capite by knight's service or grand to this day; howbeit most of the ploughing and rately rated.

serjeanty, was restrained by ancient harvest service are turned into money rents. statute, that he should not give nor alien away more + The tenants in socage at the death Relief of teof his lands, than that with the rest he might be of every tenant were to pay relief, which nant in socage, able to do the service due to the king: and this is was not as knight's service is, five pound and no ward now out of use.

a knight's fee: but it was, and so is ship, or other

profit upon the And to this tenure by knight's service still, one year's rent of the land; and dying of the Aid, what. Tenants by in chief was incident, that the king no wardship or other profit to the lord. knight's service in capite

should have a certain sum of money The remainder of the two thousand acres he kept paid it to called aid, due, to be ratably levied to himself, which he used to manure by his bond. make the king's eldest amongst all those tenants proportionably men, and appointed them at the courts of his manor son a kniglit, to their lands, to make his eldest son a how they should hold it, making an entry of it into or to marry his eldest knight, or to marry his eldest daughter. the roll of the remembrances of the acts of his daughter.

And it is to be noted, that all those court, yet still in the lord's power to take it away; Tenants by

that hold lands by the tenure of socage and therefore they were called tenants at will, by capite. in copite, although not by knight's copy of court-roll; being in truth bond

Villenage or service, cannot alien without licence, and they are men at the beginning : but having ob- tenure by copy

of court-roll to sue livery, and pay primer seisin, but not to be in tained freedom of their persons, and ward for body or land.

gained a custom by use of occupying their lands, How manors

By example and resemblance of the they now are called copyholders, and are so privi

king's policy in these institutions of leged that the lord cannot put them out, and all created. Manors cre

tenures, the great men and gentlemen through custom. Some copyholders are for lives, ated by great of this realm did the like so near as one, two, or three successively; and some inherittion of the king they could; as for example, when the ances, from heir to heir by custom; and custom

king had given to any of them two ruleth these estates wholly, both for widows' estates,

thousand acres of land, this party pur- fines, herriots, forfeitures, and all other things. word manor. posing in this place to make a dwelling, Manors being in this sort made at

Court baron, Vice tenure're or, as the old word is, his mansion- the first, reason was that the lord of the with the use of served to com- house, or his manor house, did devise manor should hold a court, which is no mon persons. how he might make his land a com

more than to assemble his tenants together at a plete habitation to supply him with all manner of time by him to be appointed; in which court he necessaries; and for that purpose, he would give of was to be informed by oath of his tenants, of all the uttermost parts of those two thousand acres, 100 such duties, rents, reliefs, wardships, copyholds, or or 200 acres, or more or less, as he should think the like, that had happened unto him ; which inmeet, to one of his most trusty servants, with some formation is called a presentment, and then his reservation of rent, to find a horse for the wars, and bailiff was to seise and distrain for those duties if go with him when he went with the king to the they were denied or withholden, which is called a wars, adding vow of homage, and the oath of * fealty, court-baron: and herein a man may sue for any Relief is 51. to

wardship, marriage, and relief. This debt or trespass under forty shillings value, and the be paid by relief is to pay five pound for every freeholders are to judge of the cause upon proof by knight's

knight's fee, or after that rate for more produced upon both sides. And there

or less at the entrance of every heir ; fore the freeholders of these manors, as court of the lord, &c.

which tenant so created, and placed, incident to their tenures, do hold by to the tenure was and is to this day called a tenant by knight's suit of court, which is to come to the of the free

holders. service, and not by his own person, but of his court, and there to judge between party manors; of these he might make as many as he and party in those petty actions; and also to inform Socage tenure

would. Then this lord would provide the lord of duties, rents, and services unpaid to him reserved by that the land which he was to keep for from bis tenants. By this course it is discerned

his own use should be ploughed, and who be the lords of lands, such as if the tenants die his harvest brought home, his house repaired, his without heir, or be attainted of felony or treason,

shall have the land by escheat. * Knight's service tenure created by the lord, is not a tenure by knight's service of the person of the lord, but of his † All money and escuage money is likewise due unto the

lords of their tenants.

men in imita

in the institutions of tenures. A manere, the

it.

every tenant

Suit to the

service to his

the lord.

manor.

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