« AnteriorContinuar »
continued to be paid by the heir by way of fine for taking up the estate after feuds became hereditary (0).
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 twentyseventh year of Henry the Second, by which every man's armour was directed to be preserved for his heir (p). But others are of opinion that the relief was originally paid in money with us as in Normandy (9). 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 reliefs for the private commodity of the lord, that he might not have inutilem proprietatem in the seignory. The heriots 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 enjoyed 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 (r), and generally all the ancient monkish writers have confounded heriots and reliefs (s).”
It may, the author thinks, 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 (t). (0) But the ancient relief, it seems, was
Sax. Wilk. 144. And see Sulliv. Feud. only payable if the heir at the death of his L. p. 281; Co. Lit. 83 a, n. (1); Hallam, ancestor had attained twenty-one; 2 Bl. 416. Com. 66; Co. Cop. s. 25, Tr. 28.
(s) And see Co. Lit. 83 a, n. (1); Sul. (P) See App. to 2d Gen. Rep. of Com. Feud. L. p. 281; Bract. 1. 2, c. 36, 86 a. on Pub. Rec. 451.
(t) See Wright's Ten. pp. 99-101. (9) Ib. n. 1; Wright's Ten. 100, n. (o). The relief of a knight's fee is thought to Vide also Hallam, 416.
have been certain, even at common law, (r) In the Appendix to 2d Gen. Rep. viz. 100s., Co. Lit. 76 a; but the compofrom the Comm. on Pub. Rec. p. 451, it sition for reliefs of earls and barons, though is observed that the heriot occurs more the relief itself was reduced and made less rarely in the Domesday Survey than might arbitrary in the reigns of William and have been expected; and that the first Henry I., is generally supposed not to establishment, if not the introduction, of have been ascertained and fully established the compulsory heriot into England, is until the charters of King John and Henry found in a law of King Canute ; Lex Ang. III., which restored the more ancient Nor
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 (u); 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 fifty years, prescribed by 32 Hen. VIII. c. 2, in the case of an avowry or conusance for suit and service (x).
Yet it should seem that the lord may distrain for the proper lief(y), as distinguishable from a prescriptive or improper relief (2), and cannot (as some say) have an action of debt (a); 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 dis
man relief in money, fixing the relief of above the age of fourteen, then shall the both earls and barons ad centum libras; ib. heir double the rent that his ancestor was But Lord Coke in his 2 Inst. p. 7, sup- wont to pay to the lord; as if the tenant poses, that the lawful and just relief men- holdeth of his lord by fealty, and 5s., then tioned in the charter of Henry I. to be shall the heir double the rent, and shall paid by an earl and barou was certain, viz. pay 10s., viz. 5s. in the name of a relief, the fourth part of the yearly value of his over and above the 5s. which he payeth earldom or barony (i. e. an earl 1001., and for his rent." a baron 100 marks), and that the 2d chap. (.r) 2 Inst. 95, N. 2; Co. Lit. 83 a; of Magna Charta was but a restitution Bevil's case, 4 Co. 10, 11; ante, pt. 1, p. and declaration of the ancient common law. 82, n. (u). Yet in avowry for relief, the And see Co. Lit. 83 b.
avowant must allege a seizin of the serThe titles of duke, marquess and vis- vices; 2 Inst. 96. N. B. The late stat. of count did not exist in England at the time limitation (3 & 4 Will. 4, c. 27), embraces of Magna Charta (9 H. 3, cap. 2); but all services, ante, p. 617, n. (d), but would they were considered to be comprehended seem not to extend to reliefs. under the equity of the statute, and sub- (y) But the distress could not be sold, ject to reliefs according to their dignities, the author apprehends, under the stat. 4 viz, a duke 2001., or one-fourth of the Geo. 2, c. 28; Scroggs, 98. supposed yearly value of a dukedom, and (z) i. e. a relief presumed to have been a marquess 200 marks, or one-fourth of the
reserved by a lost deed, with a clause of yearly value of two baronies; Co. Cop. distress; Gilb. Dis. 8. s. 25, Tr. 32, 33. And see Ant. Lowe's (a) Co. Lit. 47 b, 83 b, 162 b; Gilb. case, 9 Co. 124 b. The exact amount paid Dis. 7; but see contrà as to action of as a relief by a viscount does not appear debt, Co. Cop. s. 31, Tr. 45; Hungerford to be known; Co. Lit. 83 b.
v. Havyland or Harryland, W. Jones, 132; See further as to relief for lands held by S. C. 2 Bulst. 323; S. C. Latch, 37, &c.; knight-service, ante, p. 612, n. (k). S. C. 2 Roll. Rep. 371; see also Dy. 24 a,
(u) Glanv. lib. 9, c. 4, f. 71 a; Fleta, ca. 149; Lord North's case, 2 Leo. 179; lib. 3, c. 17, s. 11; Litt. s. 126, 127; 2 and Kitch. p. 86, says,
“ It seems the lord Inst. 232; 2 Roll. Abr. 515 (E.); shall have debt for relief, and clearly the Wright's Ten. 105, n. (w). Sir Edward executors shall have debt for relief, 32 Coke in his Copyholder (s. 25, Tr. 28] Hen. 8, 20; 19 Hen. 6;" ante, pt. 1, says, " If a tenant in socage die, bis heir
train (6): 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 (c).
There is however it appears this distinction as to the mode of recovering a relief, namely, that when it is due by prescription, reservation, or by custom (d), 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 (e).
It has been held that acceptance of rent from the new tenant, is no bar of the relief due from the old tenant (f): 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 (g); and the author apprehends that the same rule is applicable to jointtenants.
Of Amercements. An amercement (h) is in Latin called misericordia, because it ought to be assessed mercifully by the peers or equals of the delinquent(i).
It is, the author apprehends, the province of the homage of a court baron to assess every amercement, the statute of Magna Charta, (9 Hen. III.,) cap. 14, having provided that freemen (k) should be amerced after the manner of the fault committed, and that the amercements should be assessed only by the oath of honest and lawful men of the vicinage; that earls and barons should not be amerced but by their peers (1); and that an ecclesiastical person should not be amerced in respect of his spiritual benefice, but in respect of his lay
(6) See Co. Lit. as in the last note; 1 (e) Hungerford v. Havyland, ubi sup.; Sho. 36, in Shuttleworth v. Garrett; 1 Roll. Gilb. Dis. 8. Abr. 665; Leak's case, cited 4 Co. 496; ) Parham v. Norton, Cro. Eliz. 886; ante, p. 618, n. (i); Lord St. John v. S. C. Mo. 643; S. C. cited in Pennant's Brandring, Cro. Eliz. 883; S.C. Noy, 43. case, 3 Co. 66 a. It was held in this case that the relief (g) 3 Leo. 13, ca. 30. being certain, wager of law was not allow- (h) Wite or Wita is an old Saxon able.
word, also signifying amercement. So (c) Freeman v. Booth, 3 Lev. 145. likewise the word Bote, and the word
(d) As where lands are held of A. of Wera or Were. his manor of B. by payment of rent and a (i) Co. Lit. 126 b. customary relief of one year's value by the (k) The word “ freeman ” implies a heir. N. B. The sum paid as relief cus- freeholder, and extends as well to sole tom is very uncertain, and in some places corporations, as bishops, &c., as to laymen, is a year's, and in others half a year's pro- but not to corporations aggregate; 2 Inst. fits, and is frequently payable on aliena- 27. tion as well as on death ; Co. Cop. s. 25, (1) Or equals (per pares). Tr. 27, 28.
tenement(m); and the stat. of Westm. 1,(3 Ed. I.) c. 6, having enacted that no man should be amerced without reasonable cause, and according to the quantity of his trespass," and that by his or their peers.”
Yet by prescription the steward, even of a court baron, where the suitors are the judges, may assess an amercement (n); but then the amercement must be affeered by the peers or equals of the offender, that is, by free tenants of the manor ;-and where debt was brought for an amercement, which though affeered did not appear to be so by free tenants, the action was held not to lie (0).
The practice of affeering amercements arose out of the above statute of Magna Charta, it being considered that the extent of a fault committed could only be known by the affeerment of the peers of the offender (p).
But as the act of affeerment is no otherwise prescribed by that statute, or by the above statute of Westm. 1, than by the constructive sense of the provisions just cited, the spirit as well as the literal meaning of those provisions would seem to be satisfied by an amercement by the homage in a particular sum, without any affeerment (q).
Yet as it is by the judgment of his peers that every man is to be amerced, it is better, and has been thought essential (r), that two, at least, of the homage should be appointed affeerors (s), even when the homage amerce in a sum certain, in order that the office of the homage and that of the affeerors should not be confounded (t); and the affeerment, it should seem, must be made at the same court (u).
(m) “ Although this statute be in the (r) See Gilb. Eq. Rep. 211, in Ednegative, yet long usage hath prevailed wards v. Hughes ; 2 Vin. Abr. Amerceagainst it, for the amercement of the ment (D.) nobility is reduced to a certainty, viz. a (s) Kitch. 153, who there says, “ In all duke 101., an earl 5l., a bishop, who hath court barons three are sworn to ratify the a barony, 51. &c. In the Mirror it is amercements;" but this the author appresaid that the amercement of an earl was hends is a misprint, for in the same page 1001., and of a baron an hundred marks; " he says, “ If the steward or the bailiff will 2 Inst. 28; and see Griesley's case, 8 Co. assess any amercement without confirming
by two upon their oaths, after that the ho(n) Blunt v. Whitacre, 1 Leo. 242 ; mage hath presented the offenders, there is but see Rowleston v. Alman, Cro. Eliz. a special writ upon the stat. of Mag. Ch. 748.
(o) Baldwin v. Tudge, 2 Wils. 20; and (t) Hob. 129, per Hobart. see Conyers v. Franke, 3 Lev. 19.
(u) 3 Keb. 363, in Cutler 8. Creswick; (P) Br. Amerc. pl. 50, cites 10 Hen. 6, Scroggs, 150. 7.
Sworn affeerors are absolutely essential (9) Matthews v. Cary, 1 Sho. 62; per in a court leet; 3 Lev. 206; Gilb. Eq. Holt, C. J., in Brook v. Hustler, 11 Mod. Rep. 211; post, tit. “ Courts Leet,
And it is the more usual, and certainly the more advisable course, for the homage of the court baron to adjudge the party to be amerced in general terms, quod sit in misericordia, and then to have the sum ascertained by affeerors (x).
Should the amercement be immoderate, and the lord or steward neglect to have it moderated by affeerment, the writ of moderata misericordia may be sued out, directed to the lord or his bailiffs, commanding them that they moderately amerce the party according to the quantity of his fault, &c., which writ is founded on the above stat. of Magna Charta, c. 14; and the process upon it is alias and pluries, and attachment, which attachment is directed to the sheriff (y).
When two or more are amerced for the same trespass, they cannot join in a writ de moderata misericordiâ, as they should be severally amerced (2)
And if the lord or steward amerce any tenant or party in the court baron without cause, and distrain for the amercement, trespass will
Where, according to an established custom in the particular manor, a by-law is made, and a penalty laid upon every tenant guilty of a breach thereof, such penalty is in the nature of a fine set by the Court, and no affeerment can be necessary (6): indeed an affeerment or alteration of the penalty would be illegal (c). But if the fine in such a case were discretionary, then, the author apprehends, affeerment would be essential (d).
A court baron not being a court of record, neither the lord nor steward can fine or imprison (e): nor can the lord nor steward assess an amercement for a private trespass done to the lord, except perhaps by custom (f).
(r) Brook v. Hustler, sup.; S. C. 1 (d) Morgan's case, sup. Salk. 56; Griesley's case, 8 Co. 40 b; but (e) Co. Cop. s. 26, Tr. 34; Griesley's see Hob. 129, in Wilton v. Hardingham. case, Godfrey's case, sup.; 1 Roll. Rep.
(y) F. N. B. 75; Kitch. 153; Co. Lit. 74: Waterman v. Cropp, Godb. 381; 126 b.
Scroggs, 5; and see Lord Cobham v. (7) Godfrey's case, 11 Co. 43 a. Brown, 1 Leo. 217; but it would seem
(a) F. N. B. 75, C.; Kitch. 153; Co. that the Admiralty Court, which is no Lit. 126 b.
court of record, may fine and imprison for (b) Castle v. Oldman, 1 Leo. 203 ; Da- a contempt in court; Sparks v. Martyn, 1 vies v. Lowden, Cart. 29; Griesley's case, Vent. 1. 8 Co. 38 b; Morgan's case, 8 Mod. 301 ; (f) See Blunt v. Whitacre, 1 Leo. 242; but in the latter case one justice was of Partridge v. Walker, P. 16 Car. 2, B. R. opinion that the custom was abrogated Scroggs, 147; Kitch. p. 154, says “ The by Magna Charta ; and see Edwards & lord cannot amerce a man in his own Hughes, ubi sup.
court for trespass made to himself, by the (c) Scarning v. Cryer, 3 Leo. 8; S. C. law, but he may by custom." Mo. 75; S. C. Bendl. 159.