CHAP. IV.
Reciprocal, indeed, ought to be the Relation of Fidelity between Dominion and Homage.[339] Nor does the Tenant owe more to his Lord, in respect of Homage, than the Lord owes to the Tenant on account of Dominion, Reverence alone excepted. Hence, if one person give to another any Land in return for Service and Homage, which is afterwards recovered against the Tenant by a third person, the Lord shall be bound to warrant such Land to him, or to return him an adequate equivalent. It is different, however, with respect to him who holds a Fee of another, as his Inheritance, and, in this character, has done Homage; because although he lose the Land, the Lord shall not be bound to give him an equivalent.[340] In the case we have formerly mentioned, of the death of the Father or Ancestor, leaving an Heir, a Minor, the Lord of the Fee has no right to the Custody of the Heir, or his Inheritance, unless he has first received the Homage of the Heir. But the Homage having been received, the Heir, with his Inheritance, shall continue in the manner before mentioned, in the Custody of his Lord, until he has attained his full age. Having at last arrived at such age, and received restitution of his Inheritance, he shall, by reason of his having been in Custody, be exempt from the payment of any Relief.[341] But a Female Heir, whether she has attained her full age, or not, shall remain in the Custody of her Lord, until, with his advice, she is married.[342] If, however, she was within age, when the Lord received her into Custody, then, upon her marriage, the Inheritance shall be discharged from the Relief, so far as respects herself and her Husband.[343] But, if she was of full age at that time, although she continue some time in her Lord’s Custody before she is married, her Husband shall pay a Relief. When, however, the Relief has been once paid by the Husband of a Woman, it shall exempt both the Husband and the Wife during their several lives from payment of another Relief, on account of such Inheritance; because, neither the Woman herself, nor her second Husband, if she should espouse a second upon the death of the former, nor her first Husband, should he survive her, shall again pay a Relief for the same Land. But when a Male Heir is left of full age, and known to be the Heir, he shall hold himself in his Inheritance, as we have formerly observed, even though his Lord be unwilling, provided he make a Tender to his Lord, as he ought to do, of his Homage, and reasonable Relief,[344] in the presence of creditable persons. A person’s Relief is said to be reasonable, with reference to the Custom of the Realm, according to which the Relief of a Knight’s Fee is one hundred Shillings,[345] whilst that of Land in Socage is one Year’s Value.[346] But as to Baronies[347] nothing certain is enacted,[348] because Barons holding of the King in Capite are accustomed to pay their Reliefs to the King, according to his pleasure, and indulgence.[349] The same Rule prevails as to Serjeanties.[350] If, however, the Lord will neither receive the Homage nor reasonable Relief of the Heir, then, the latter should safely keep the Relief, and frequently tender it to his Lord, by the hands of respectable persons. If the Lord will by no means receive it, then, the Heir should make complaint of him to the King, or his Justices; and shall have the following Writ.
CHAP. V.
“The King to the Sheriff, Health.[351] Command N. that, justly and without delay, he receive the Homage, and reasonable Relief of R. concerning the free Tenement which he holds, in such a Vill, and that he claims to hold of him; and, unless he does so, summon him by good Summoners, that he be before me or my Justices on such a day, to shew why he has not done it. And have there the Summoners, and this Writ. Witness &c.”
CHAP. VI.
As to the proceedings which are to be resorted to, in case the Lord should not obey this Summons, and the means by which he shall be distrained to appear in Court, they may be collected from the former part of this Treatise. When, at last, he appears in Court, he will either acknowledge that the Tenant is the right Heir, or deny that he is the Heir, or he will doubt, whether he is the right Heir or not. If he should acknowledge him to be the Heir, he will, then, either deny that the Tenant has tendered him the Homage and reasonable Relief, or he will admit it. If he confess both the one and the other, he shall either immediately receive the Tenant’s Homage and reasonable Relief in Court, or he shall appoint him a fit day for doing it. The same observation may be made, although he deny that the Tenant has proffered to him his Homage or Relief, provided he admit the Tenant to be the Heir. But if in decided terms he denies the Tenant to be the Heir, then, indeed, may the latter, if out of possession, require against his Lord an Assise de morte Antecessoris sui. Should the Tenant, however, happen to be in possession, he may hold himself in it, and patiently await, until it pleases his Lord to accept his Homage; because, no one is previously bound to answer his Lord as to the Relief, until the latter has received his Homage for the Fee, on account of which Homage is due to him. But if the Lord doubts, whether the person tendering the Homage be the right Heir or not,[352] being for example unknown to the Lord himself, or even to the Vicinage in the character of Heir, then the Lord of the Fee may take the Land into his own hands, and retain it, until the point be fully cleared up, a course of proceeding, which the King generally adopts with respect to all his Barons holding of him in Capite.
For, upon the death of a Baron holding of him in chief, the King immediately retains[353] the Barony in his own hands, until the Heir has given security for the Relief, although the Heir should be of full age. But Lords, for a reasonable cause, may sometimes postpone receiving Homage and Relief for their Fees. Suppose, for Example, another person, than the one who asserts himself to be the Heir, should claim a right in the Inheritance. During the pendency of this Suit, Homage ought not to be received, nor a Relief given. Or, if the Lord think that he himself has a right to hold the Inheritance in his own Demesne. And if in such case he should, by force of the King’s Writ or that of his Justices, implead the person in possession, the Tenant may put himself upon the King’s Grand Assise, the form of which proceeding is explained in the [second Book], unless in some respects there should be a variation, an Example of which we have in the following Writ for such purpose——