Gambar halaman
PDF
ePub

session of land, or of receipt of rent, at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were or was so received.' (a) But it is provided by the fifteenth section, that when the possession of the land, or the receipt of the rent, shall not at the time of passing the act have been adverse to the title of the claimant, then the right of entry, or distress, or action, shall not be barred for the space of five years afterwards, although the period of twenty years, thereinbefore limited, shall have expired.

And I submit that the effect of the second and third sections of the above act, taken independently of the fifteenth section, is to destroy the remedy which the law had afforded, by a distress, for the recovery of quit rents, as between the same lord and tenant, in those cases where twenty years may have elapsed since the last payment, but that under the fifteenth section the remedy is revived for a period of five years, where there was not an adverse possession of the rent at the time of passing the act.

RELIEFS.-Fully according with the more general opinion that the proper, or ancient relief is not a service, but a fruit or improvement of service (6), this subject might, perhaps, have been introduced with greater propriety at the end of the present chapter, in treating more generally of the fruits of tenure, but from the contrariety of opinion as to the true character of the proper relief, (induced, possibly, by the circumstance of its being recoverable by distress (c),) and also from the affinity

(a) The 3d sect. also makes a particular provision as to the time of the right first aceruing in cases of a claim on death, or on alienation, or of a reversionary interest, or on a forfeiture or breach of condition. Vide the act in the Appendix.

(6) See 2 Roll. Abr. 514, 515, (D) pl. 3 & 4. 3 Co. 66, in Pen

nant's case. Co. Lit. 83. a. Wright's Ten. 98. (n. k). Therefore the executors of the lord shall have an action of debt for relief. Leak's case, 32 H. 8, cited 4 Co. 19 b.

(c) The lord may distrain, but his executors or administrators cannot. Post. pp. 741, 742.

which the relief bears to the exactions prevailing under the feudal system, to which some allusions have been incidentally made, I have preferred classing the observations which it is my design to offer on the law of reliefs, with the consideration of the services usually rendered, at this day, for lands of freehold tenure. And another motive for this preference of classification is, that a relief is sometimes due by reservation, or under an immemorial custom, in a particular manor (a).

The relief has been supposed to have originated after the Conquest, and to have been established on the plan of the Danish heriot (6), upon estates in England being made hereditary; but the better opinion is, that it was a fruit of feudal tenure, and was paid as an acknowledgment for the renewal of the feud, when the succession was arbitrary and dependent on the will of the lord (c); and that it was continued to be paid by the heir, by way of fine for taking up the estate, after feuds became hereditary (d).

The relief is by some ancient writers supposed to have been originally paid in horses and arms, and to have given place to a money payment upon the ordinance called the assize of arms in the twenty-seventh year of Henry the Second, by which every man's armour was directed to be preserved for his heir (e). But others are of opinion that the relief was originally paid in money with us, as in Normandy (f). And certain it is that the relief has been frequently confounded with the heriot, although there is a great distinction between them, which Sir Henry Spelman thus notices “ Heriots” (he observes) “ were militiæ apparatus which the word signifieth, and devised to

keep the conquered nation in subjection, and to support the public strength and military furniture of the kingdom : the (a) Post. p. 742.

death of his ancestor, had attained (6) See the Appendix to 20 Gen. twenty-one. 2 Bl. Com. 66. Co. Rep. of Commissioners on Public Cop. $ 25. Tr. 28. Records, p. 451.

(e) See App. to 20 Gen. Rep. of (c) Ib. Wright's Ten. 15. Spelm. Comm. on Pub. Rec. p. 451. Treat. of Feuds, 33. 2 Bl. Com. 65. (f) Ib. n. 1. Wright's Ten. 100.

(d) But the ancient relief it seems (1.0). was only payable if the heir, at the

“ reliefs for the private commodity of the lord, that he might “not have inutilem proprietatem in the seignory. The he“ riots were therefore paid in habiliments of war; the reliefs

usually in money: the heriot for the tenant that died, and “ out of his goods; the relief for the tenant that succeeded, " and out of his purse: the heriot whether the son or heir en“joyed the land, or not; the relief by none but him only that “ obtained the land in succession.” “ I stand the longer” (adds Sir Henry Spelman)“ herein, for that not only the report, “ but even Domesday itself (a), and generally all the ancient “ monkish writers have confounded heriots and reliefs." (6) It may,

I think, be inferred from several of our ancient text writers that William I. and perhaps Henry I. required reliefs to be paid by military tenants in habiliments of war, on the plan of the Danish heriot, but that they were reduced to some certainty by the laws of the former, and restricted by the latter to a just and lawful relief ; after having been exacted arbitrarily by William II (c).

(a) In the Appendix to 2d Gen. arbitrary in the reigns of William, Rep. from the Comm. on P.

R.

p. and Henry I., is generally supposed 45), it is observed, that the heriot not to have been ascertained and occurs more rarely in the Domesday fully established until the Charters Survey than might have been ex- of King John and Henry III., which pected; and that the first establish- restored the more ancient Norman ment, if not the introduction of the relief, in money, fixing the relief of compulsory heriot into England, is both Earls and Barons ad centum found in a law of King Canute, Lex. libras. Ib. But Lord Coke in his 2 Anglo. Sax. Wilk. p. 144. And see Inst. p.

7, supposes that the lawful Sulliv. Feud. L. p. 281. Co. Lit. and just relief mentioned in the 83. a. n. (1).

Charter of Hen. I. to be paid by an (6) And see Co. Lit. 83. a. n. (1). Earl and Baron was certain, viz. the Sulliv. Feud. L. p. 281. Bract. 1. 2. fourth part of the yearly value of his c. 36. 86. a.

Earldom or Barony, (i. e. an Earl (c) See Wright's Ten. 99, 100, 1001. and a Baron 100 marks,) and 101. The relief of a knight's fee is that the second chapter of Mag. Ch. thought to have been certain, even was but a restitution and declaration at common law, viz. 100s. Co. Lit. of the ancient Common Law. And 76 a; but the composition for reliefs see Co. Lit. 83 b. of Earls and Barons, though the re- The titles of Duke, Marquess, and lief itself was reduced and made less Viscount did not exist in England at

The relief of socage lands, to which all tenures, with the exceptions already mentioned, were reduced by the Stat. 12 Car. 2. c. 24, was fixed so long back as the 40th law of William I. at a year's rent, which has been constantly taken as a relief for socage lands up to the present day (a); the sum now rendered as a relief having reference to the quit rent payable in respect of the particular lands.

A relief being a fruit of service only, is not within the limitation of 50 years, prescribed by 32 H. 8. c. 2. in the case of an avowry or conusance for suit and service (6).

Yet it should seem that the lord may distrain for the proper relief (c), as distinguishable from a prescriptive or improper relief (d), and cannot (as some say) have an action of debt(e);

10s.,

And see

the time of Magna Charta, (9 H. 3. “ if the tenant holdeth of his lord by cap. 2.,) but they were considered to “ fealty, and 5s., then shall the heir be comprehended under the equity of “ double the rent, and shall

pay the stat. and subject to reliefs ac- 66 viz. 5s. in the name of a relief, cording to their dignities, viz. a over and above the 5s. which he Duke 2001, or one-fourth of the

sup- payeth for his rent.” posed yearly value of a dukedom, and (6) 2 Inst. 95. N. 2. Co. Lit. a Marquess 200 marks, or one-fourth 83. a. Bevil's case, 4 Co. 10, 11. of the yearly value of two baronies. Ante, pt. 1. p. 100, n. (c). Yet in Co. Cop. § 25. Tr. 32-3.

avowry

for relief, the avowant must Anth. Lowe's case, 9 Co. 124 b. The allege a seisin of the services. 2 Inst. exact amount paid as a relief by a 96. N.B. The late stat. of limitation Viscount does not appear to be (30 & 4th W. 4. c. 27), embraces known. Co. Lit. 83 b.

all services, ante, p. 737. n. (e), but See further as to relief for lands would seem not to extend to reliefs. held by knight-service, ante, p. 731. (c) But the distress could not be n. (b).

sold, I apprehend, under the stat. (a) Glanv. lib. 9. c. 4. f. 71. a. 4 Geo. 2. c. 28. Scroggs 98. Fleta. Lib. 3. c. 17, § 11. Lit. (d) i. e. a relief presumed to have § 126-7. 2 Inst. 232. 2 Roll. Abr. been reserved by a lost deed, with a 515 (E.) Wright's Ten. 105. (n. w.) clause of distress. Gilb. Dis. 8. Sir Edward Coke in his Copyholder (e) Co. Lit. 47 b, 83 b, 162 b. [$. 25. Tr. 28] says,

« If a tenant Gilb. Dis. 7. But see contrà as to “ in socage die, his heir above the action of debt, Co. Cop. § 31. Tr.

age of fourteen, then shall the heir 45. Hungerford v. Havyland or “ double the rent that his ancestor Harryland, W. Jones, 132. S. C.

was wont to pay to the lord; as, 2 Bulst. 323. S. C. Latch. 37, &c.

but that his executors or administrators may have an action of debt for the relief, as well against the tenant as against his executor, and cannot distrain (a): and as the relief is incident of common right to socage tenure, it is not necessary to set forth a title to it in replevin (6).

There is, however, it appears this distinction as to the mode of recovering a relief, namely, that when it is due by prescriptive reservation, or by custom (c), the lord cannot distrain for it, unless he can show a title to the remedy as well as the

payment itself, either by prescription or custom (d).

It has been held that acceptance of rent from the new tenant, is no bar of the relief due from the old tenant (e). And that a relief cannot be apportioned ; so that on the death of one of several coparceners, who are but as one tenant to the lord, no relief is payable (f ).

SECT. III.

Of Amercements.

An amercement (8) is in latin called misericordia, because

un

p. 436.

S. C. 2 Roll. Rep. 371. See also (c) As where lands are held of Dy. 24 a. ca. 149. Lord North's A. of his manor of B. by payment of case, 2 Leo. 179. And Kitch, p. 86, rent and a customary relief of one says, “ It seems, the lord shall have year's value by the heir. N. B. The debt for relief, and clearly the exe- sum paid as relief custom is

very cutors shall have debt for relief, 32 certain, and in some places is a year's, H. 8. 20. 19 H. 6.” Ante, pt. 1. and in others half a year's profits,

and is frequently payable on alie(a) See Co. Lit. as in the last note. nation, as well as on death. Co. 1 Sho. 36. in Shuttleworth v. Garret. Cop. 25. Tr. 27-8. 1 Roll. Abr. 665. Lord St. John v. (d) Hungerford v. Havyland, ubi Brandring, Cro. Eliz. 883. S. C.

Gilb. Dis. 8. Noy. 43. It was held in this case (e) Parham v. Norton, Cro. Eliz. that the relief being certain, wager 886. S. C. Mo. 643. S. C. cited in of law was not allowable.

sup.

Pennant's case, 3 Co. 66 a. (6) Freeman v. Booth, 3 Lev. f) 3 Leo. 13, ca. 30. 145.

(g) Wite or Wila is an old Saxon

« SebelumnyaLanjutkan »