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continued to be paid by the heir by way of fine for taking up the estate after feuds became hereditary (o).
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 (q). 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 only payable if the heir at the death of his ancestor had attained twenty-one; 2 Bl. Com. 66; Co. Cop. s. 25, Tr. 28.
(p) See App. to 2d Gen. Rep. of Com. on Pub. Rec. P. 451.
(9) Ib. n. 1; Wright's Ten. 100, n. (o). Vide also Hallam, 416.
(r) In the Appendix to 2d Gen. Rep. from the Comm. on Pub. Rec. p. 451, it is observed that the heriot occurs more rarely in the Domesday Survey than might have been expected; and that the first establishment, if not the introduction, of the compulsory heriot into England, is found in a law of King Canute; Lex Ang.
Sax. Wilk. p. 144. And see Sulliv. Feud. L. p. 281; Co. Lit. 83 a, n. (1); Hallam, 416.
(s) And see Co. Lit. 83 a, n. (1); Sul. Feud. L. p. 281; Bract. 1. 2, c. 36, 86 a.
(t) See Wright's Ten. pp. 99-101. The relief of a knight's fee is thought to have been certain, even at common law, viz. 100s., Co. Lit. 76 a; but the composition for reliefs of earls and barons, though the relief itself was reduced and made less arbitrary in the reigns of William and Henry I., is generally supposed not to have been ascertained and fully established until the charters of King John and Henry 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 relief (y), as distinguishable from a prescriptive or improper relief (z), 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 both earls and barons ad centum libras; ib. But Lord Coke in his 2 Inst. p. 7, supposes, that the lawful and just relief mentioned in the charter of Henry I. to be paid by an earl and baron was certain, viz. the fourth part of the yearly value of his earldom or barony (i. e. an earl 1007., and a baron 100 marks), and that the 2d chap. of Magna Charta was but a restitution and declaration of the ancient common law. And see Co. Lit. 83 b.
The titles of duke, marquess and viscount did not exist in England at the time of Magna Charta (9 H. 3, cap. 2); but they were considered to be comprehended under the equity of the statute, and subject to reliefs according to their dignities, viz. a duke 2001., or one-fourth of the supposed yearly value of a dukedom, and a marquess 200 marks, or one-fourth of the yearly value of two baronies; Co. Cop. s. 25, Tr. 32, 33. And see Ant. Lowe's case, 9 Co. 124 b. The exact amount paid as a relief by a viscount does not appear to be known; Co. Lit. 83 b.
See further as to relief for lands held by knight-service, ante, p. 612, n. (k).
(u) Glanv. lib. 9, c. 4, f. 71 a; Fleta, lib. 3, c. 17, s. 11; Litt. s. 126, 127; 2 Inst. 232; 2 Roll. Abr. 515 (E.); Wright's Ten. 105, n. (w). Sir Edward Coke in his Copyholder [s. 25, Tr. 28] says, "If a tenant in socage die, his heir
above the age of fourteen, then shall the heir double the rent that his ancestor was wont to pay to the lord; as if the tenant holdeth of his lord by fealty, and 5s., then shall the heir double the rent, and shall pay 10s., viz. 5s. in the name of a relief, over and above the 5s. which he payeth for his rent."
(x) 2 Inst. 95, N. 2; Co. Lit. 83 a; Bevil's 's case, 4 Co. 10, 11; ante, pt. 1, p. 82, n. (u). Yet in avowry for relief, the avowant must allege a seizin of the services; 2 Inst. 96. N. B. The late stat. of limitation (3 & 4 Will. 4, c. 27), embraces all services, ante, p. 617, n. (d), but would seem not to extend to reliefs.
(y) But the distress could not be sold, the author apprehends, under the stat. 4 Geo. 2, c. 28; Scroggs, 98.
(z) i. e. a relief presumed to have been reserved by a lost deed, with a clause of distress; Gilb. Dis. 8.
(a) Co. Lit. 47 b, 83 b, 162 b; Gilb. Dis. 7; but see contrà as to action of debt, Co. Cop. s. 31, Tr. 45; Hungerford v. Havyland or Harryland, W. Jones, 132; S. C. 2 Bulst. 323; S. C. Latch. 37, &c.; S. C. 2 Roll. Rep. 371; see also Dy. 24 a, ca. 149; Lord North's case, 2 Leo. 179; and Kitch. p. 86, says, "It seems the lord shall have debt for relief, and clearly the executors shall have debt for relief, 32 Hen. 8, 20; 19 Hen. 6;" ante, pt. 1, p. 368.
train (b) 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 (ƒ): 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 joint
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
(b) See Co. Lit. as in the last note; 1 Sho. 36, in Shuttleworth v. Garrett; 1 Roll. Abr. 665; Leak's case, cited 4 Co. 496; ante, p. 618, n. (i); Lord St. John v. Brandring, Cro. Eliz. 883; S. C. Noy, 43. It was held in this case that the relief being certain, wager of law was not allowable.
(c) Freeman v. Booth, 3 Lev. 145. (d) As where lands are held of A. of his manor of B. by payment of rent and a customary relief of one year's value by the heir. N. B. The sum paid as relief custom is very uncertain, and in some places is a year's, and in others half a year's profits, and is frequently payable on alienation as well as on death; Co. Cop. s. 25, Tr. 27, 28.
(e) Hungerford v. Havyland, ubi sup.; Gilb. Dis. 8.
(ƒ) Parham v. Norton, Cro. Eliz. 886; S. C. Mo. 643; S. C. cited in Pennant's case, 3 Co. 66 a.
(g) 3 Leo. 13, ca. 30.
(h) Wite or Wita is an old Saxon word, also signifying amercement. So likewise the word Bote, and the word Wera or Were.
(i) Co. Lit. 126 b.
(k) The word "freeman" implies a freeholder, and extends as well to sole corporations, as bishops, &c., as to laymen, but not to corporations aggregate; 2 Inst.
(1) Or equals [per pares].
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 (o).
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 negative, yet long usage hath prevailed against it, for the amercement of the nobility is reduced to a certainty, viz. a duke 10., an earl 5l., a bishop, who hath a barony, 51. &c. In the Mirror it is said that the amercement of an earl was 1007., and of a baron an hundred marks; ' 2 Inst. 28; and see Griesley's case, 8 Co. 40 a.
(n) Blunt v. Whitacre, 1 Leo. 242; but see Rowleston v. Alman, Cro. Eliz. 748.
(r) See Gilb. Eq. Rep. 211, in Edwards v. Hughes; 2 Vin. Abr. Amercement (D.)
(s) Kitch. 153, who there says, " In all court barons three are sworn to ratify the amercements; " but this the author apprehends is a misprint, for in the same page he says, "If the steward or the bailiff will assess any amercement without confirming by two upon their oaths, after that the homage hath presented the offenders, there is a special writ upon the stat. of Mag. Ch. c. 14."
(t) Hob. 129, per Hobart.
(u) 3 Keb. 363, in Cutler & Creswick; Scroggs, 150.
Sworn affeerors are absolutely essential in a court leet; 3 Lev. 206; Gilb. Eq. Rep. 211; post, tit. "Courts Leet, (Amercement)."
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 misericordiâ, 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 lie (a).
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 (b): 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 (ƒ).
(x) Brook v. Hustler, sup.; S. C. 1 Salk. 56; Griesley's case, 8 Co. 40 b; but see Hob. 129, in Wilton v. Hardingham.
(y) F. N. B. 75; Kitch. 153; Co. Lit. 126 b.
(z) Godfrey's case, 11 Co. 43 a.
(a) F. N. B. 75, C.; Kitch. 153; Co. Lit. 126 b.
(b) Castle v. Oldman, 1 Leo. 203; Davies v. Lowden, Cart. 29; Griesley's case, 8 Co. 38 b; Morgan's case, 8 Mod. 301; but in the latter case one justice was of opinion that the custom was abrogated by Magna Charta; and see Edwards & Hughes, ubi sup.
(c) Scarning v. Cryer, 3 Leo. 8; S. C. Mo. 75; S. C. Bendl. 159.
(d) Morgan's case, sup.
(e) Co. Cop. s. 26, Tr. 34; Griesley's case, Godfrey's case, sup.; 1 Roll. Rep. 74: Waterman v. Cropp, Godb. 381; Scroggs, 5; and see Lord Cobham v. Brown, 1 Leo. 217; but it would seem that the Admiralty Court, which is no court of record, may fine and imprison for a contempt in court; Sparks v. Martyn, 1 Vent. 1.
(f) See Blunt v. Whitacre, 1 Leo. 242 ; Partridge v. Walker, P. 16 Car. 2, B. R. Scroggs, 147; Kitch. p. 154, says "The lord cannot amerce a man in his own court for trespass made to himself, by the law, but he may by custom."