« AnteriorContinuar »
forth for life and member, and for wordly honour, and shall owe you my faith for the land I hold of you, saving the faith I owe unto the sovereign Lord my King, and to my other lords (s).”
And this mode of taking a pledge from each tenant signified protection and warranty on the part of the lord (t). But this in later times was held to be peculiar to homage auncestrel (u).
Homage was performed only when the grant was of an estate of inheritance, that is, in fee-simple, or fee-tail (x); but fealty is to be done by tenant for life (y), or even for years if he hold immediately by grant or lease from the lord, but not by tenant at will, except by custom (z).
If required, fealty is to be iterated on every change of the lord, and on every new purchase or descent, it differing in this respect from homage, which, except in special cases, is only due once, so that if other lands held of the same lord descended to a person who had already done homage to the lord, no further homage could be required (a).
It should seem that homage as well as fealty was done by women when of age (b), but that homage was not exacted from femes covert, the husband doing both fealty and homage to the lord for the lands of his wife, if they had issue when livery was sued; and doing fealty (c), but not homage, if they had no issue (d). And therefore until there was issue, entitling the husband to curtesy, the homage seems to have been suspended (e).
(s) Bract. f. 80; Glanv. 1. 9, c. 1; Britt. f. 173; Flet. 1. 3, c. 16; Co. Lit. tit. Homage.
(t) Bract. f. 80; Co. Lit. 67 b, n. 1. (u) Ib.; 2 Inst. 11. And see Co. Lit. s. 143; F N. B. 134 F.
Littleton, in treating of Homage Auncestrel, tells us that such homage is where the tenant and his ancestors, whose heir he is, have held the same lands of the same lord, and his ancestors, whose heir the lord is, time out of memory of man, by homage, and have done to them homage, which seems to be a strange and unusual tenure, and scarce possible to continue between the same lord and tenant, and their ancestors, and of the same lands, and this time out of mind. And Lord Coke doubted whether, even in his time, there was any relic of this tenure in England, because of this double prescription, both in the blood of the lord and the tenant; Co. Lit. s. 143; ib. 67 b, n. 1, 105 a, n. 1. At all events,
the tenure of homage auncestrel, as implied in the general words "all tenure by homage," was taken away by the stat. of 12 Car. 2, c. 24; Co. Lit. 105 a, n. 1.
(x) Co. Lit. s. 90.
(z) Kitch. 260; Co. Lit. s. 84, ib. s. 132; ib. 93 a, n. 1. Even as to tenant for years, see the Year-Books referred to in n. 2, Co. Lit. 67 b.
(a) 21 H. 8; Fealty, 8; Kitch. 260; Co. Lit. 68 b, n. 5.
(b) F. N. B. 257, F.; Co. Lit. 65 b, 66 а. But see contra, Glanv. lib. 9, c. 1.
(c) Mr. Watkins was of opinion that the wife only should do fealty for copyhold lands, she alone being admitted tenant; ante, pt. 1, p. 361; and see Comb's case, 9 Co. 76 a.
(d) F. N. B. 257, F.; Kitch. 260.
(e) Br. Fealtie & Homage, pl. 10, 16; F. N. B. 257, F. n. b. But see Co. Lit. 66 a, &c., where Littleton gives an instance
An infant, though he might have performed homage, cannot do fealty, it should seem, as that is only to be done upon oath (f); and as no man can swear by attorney, fealty must necessarily be done in person (g).
The lord in his own person could alone receive the tribute of homage (h), and for this reason a corporation who can appear only by attorney could not take homage (i); but fealty might always be received by the steward of the lord's court or the bailiff (k).
The oath of fealty or pledge of fidelity (and which was consequential to homage), used always to be made immediately after the tenant had performed his homage, and was formerly deemed of the first importance, the seisin of fealty being a sufficient seisin of all other services (1). The oath is now usually administered, or rather respited, and an entry thereof made on the manor rolls (m) at the first court after the new tenant's title accrues, and the latter is not only the more general, but the more advisable mode, except, indeed, in those instances (if any exist) where fealty is the only service rendered (n).
SUIT OF COURT (0).-The author has already shown that a court of joint homage by the husband and wife, the husband alone repeating the words, which Lord Coke says must mean before issue had between them.
(f) Bract. 78; Co. Lit. 65 b; 2 Inst. 11. But Kitch. p. 260, says, " In a per que servitia an infant was constrained to attorn, and to make fealty, notwithstanding his non-age," cites 20 Ed. 3, tit. 19. And see 24 E. 3, 63, 64; Hal. MSS. cited N. 5, Co. Lit. 65 b.
(g) Co. Lit. 68 a; Comb's case, 9 Co. 76. See a singular instance of fealty by attorney, Hal. MSS. cited Co. Lit. 68 a, n. 5. In France both homage and fealty may be done by proxy, if the lord consents, and by the custom of some of the provinces even without; ib.
(h) Bract. 1. 2, f. 80; Co Lit. s. 92. (i) Kitch. 260.
(k) Co. Lit. s. 92; Co. Cop. s. 20, Tr. 15; ante, pt. 1, p. 361.
(1) Bevil's case, 4 Co. 8; Co. Lit. 68 b. That seisin of fealty doth not estop the tenant from traversing the seisin of other services, vide 41 E. 3, 25, 50; Lilburne's case, Hal. MSS. Co. Lit. 68b, n. (6). (m) See ante, pt. 1, p. 362.
(n) Co. Lit. 68 b, n. (5). Kitch. 290, says, "Where the writing is to hold by certain service for all services, as to hold by fealty for all services, [he] shall make no suit. Marlb. chap. 9." And see further as to fealty, Sulliv. 68; ante, pt. 1, ch. 8. Vide also as to the lord's remedy for fealty, post, p. 616. It appears by Kitch. p. 261, that the lord is not constrained to avow on a feoffee, even in case of the death of his tenant, without notice of the feoffiment, but may distrain the feoffee and avow upon the feoffor, and in the case of the tenant's death after such alienation, the lord may distrain the issue and avow upon him. And, indeed, by stat. 21 H. 8, c. 19, he need not avow or justify of any person certain. As to the remedy for neglect of fealty, see infra, p. 616, n. (u). And, N.B., it was held in Bevil's case, 4 Co. 10 b, and in Bennet v. King, 3 Lev. 21, that fealty, and such casual services as might not happen within the periods mentioned in the act, were not within the statute of limitation, 32 H. 8. And see Co. Lit. 115 a; ante, pt. 1, p. 481.
(0) By the interpretation clause (s.102)
baron is incident to every manor; and at this court the freehold tenants were anciently and are still compellable to perform their suit and service, as well to inquire of and maintain the rights of the lord, as to form a jury for the trial of matters in dispute between their fellow tenants (p), which duty led, in the early feudal institutions, to their designation of peers of the court, pares curia.
We have also seen that suit of court by freeholders may be done by attorney, but that such attorney cannot be appointed by parol (q): and that joint tenants and co-parceners shall do but one suit, the eldest sister performing the suit in the latter instance, and the other joint tenants or co-heirs being contributory for the suit done for them (r). But if there be two co-parceners, and the eldest will not do suit, then the lord may compel the youngest to make suit, who shall have contribution against the eldest (s).
It has likewise been already stated that a woman, in respect of the land she holds in dower, is not allowed to sit on the homage to try issues in a court baron, where the suitors are the judges, nor even to make presentment, unless the husband die without an heir, but that the husband, and not the wife, is to perform all the services to the lord in respect of the wife's freehold lands (t).
The proper remedy for neglect of suit of court, as well as for refusal to do fealty, is by distress infinite of the beasts or other personal property of the party distrained upon (u); but the distress is considered as a pledge only for the performance of the services, and cannot be sold; for which reason the author apprehends that it can in no case be deemed immoderate or excessive (x) under the statute of Marlborough (y).
But it should seem that for suit to a hundred court one cannot distrain, except by prescription, and in the lands charged with the suit, although a hundred court is no more than a court baron, and the suitors there are judges (2).
in the Commutation and Enfranchisement act, 4 & 5 Vict. c. 35, the word "rents" includes "services," not being service at the lord's court.
(p) See ante, pp. 601–604.
(9) Stat. Merton, 20 H. 3, c. 10. And see F. N. B. 156 D.; Kitch. 293; ante, pt. 1, p. 363.
(2) Ante, pt. 1, pp. 86, 365; 2 Inst. 116. See also Fitz. Abr. 162; 1 H. 4, 3a; Kitch. 291.
(s) Fitz. Abr. 159 E.; Kitch. 291. (t) Ante, pt. 1, p. 364. But see as to copyholds, ante, p. 614, n. (c). And note,
that the widow is not to be distrained for freehold land which she holds in dower, if the heir have sufficient land in the same county; F. N. B. 159 (A.), (B.); ante, pt. 1, p. 364, n. (n).
(u) F. N. B. 158 et seq.; Kitch. tit. Suit; 3 Bl. Com. 231. See reference to the late statute of limitation, post, p. 617, n. (d).
(r) Co. Lit. 68 b, n. (5). Finch. L. 285; Bevil's case, 4 Co. 8b; 3 Bl. Com. 12, 231.
(y) 52 H. 3, c. 4.
(2) F. N. B. 161 D., n. (a).
And it is to be recollected that suit of court is not incident to tenure, unless it be suit service, so that if it should appear that the tenure was created subsequently to the statute of quia emptores, the author apprehends that the lord could not distrain for the subtraction of suit, except under a special reservation of the remedy of distress, or by prescription (a).
Rents of AssizE, &c.-HERIOTs (b).-These subjects are already treated of at some length in our consideration of the services due to the lord of the manor from his copyhold tenants (c), to which the author must beg to refer the reader, being anxious to avoid any unnecessary repetition in a work which he feels has much less pretensions to novelty of matter than of arrangement.
The author is induced, however, to offer an additional observation with reference to the provisions of the late act of parliament for the limitation of actions and suits relating to real property (d). By the second section it is enacted, that after the 31st of December, 1833, no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years (e) after the right to do so accrued to the party himself, or to some person through whom he claims; and the third section enacts, that the right shall be deemed to have accrued, in cases of dispossession or discontinuance of possession 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 (f)." 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 the author submits that the effect of the second and third sections of the above act, taken independently of the fifteenth section,
(a) Kitch. 293, 294.
(b) See the references to the Commutation and Enfranchisement act, 4 & 5 Vict. c. 35, ante, p. 603, n. (c); pt. 1 pp. 315, 365, 369.
(c) Ante, pt. 1, ch. 8.
(d) 3 & 4 W. 4, c. 27. N.B.-By the first section the word "rent" is declared to extend to heriots, and all services and suits for which a distress may be made.
(e) N.B.-Quit rents payable in respect of freehold lands were, before the passing
of this act, recoverable for a period of fifty years; Eldridge v. Knott, Cowp. 214. And mere length of time did not raise the presumption in equity of an extinguishment; ante, pt. 1, p. 367.
(f) The 3rd section also makes a particular provision as to the time of the right first accruing 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.
is to destroy the remedy which the law had afforded, by a distress for the recovery of quit rents (g), 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 (h).
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 (i), 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 (k),) and also from the affinity which the relief bears to the exactions prevailing under the feudal system, to which some allusions have been incidentally made, the author has preferred classing the observations which it is his 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 (1).
The relief has been supposed to have originated after the Conquest, and to have been established on the plan of the Danish heriot (m), 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 (n); and that it was
(g) N. B.-In copyhold cases, as between the same lord and tenant, ante, pt. 1, pp. 366, 367.
(h) As the 36th section has abolished all real actions, the lord is without any remedy for quit rents if in arrear for 20 years or upwards, (except for the 5 years under the 15th section, and the extension to 1 June, 1835, when no right of entry, by the 37th section;) and under the 34th section, the right to the rent would, after the 20 years, be extinguished. But the period of 20 years may be extended even to 40 years by the person entitled to the rent being under the disability of infancy, coverture, lunacy, or absence beyond seas. Vide ss. 16, 17, ante, pt. 1, p. 367.
(i) See 2 Roll. Abr. 514, 515 (D.), pl.
3 & 4; 3 Co. 66, in Penuant'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; Leake's case, 32 H. 8, cited 4 Co. 49 b.
(k) The lord may distrain, but his executors or administrators cannot; post, p. 620.
(1) Post, p. 621.
Note." Reliefs" are included in the general term "rents " in the Commutation and Enfranchisement act, 4 & 5 Vict. c. 35. See the interpretation clause (s. 102).
(m) See the Appendix to 2d Gen. Rep. of Commissioners on Public Records, p. 451.
(n) Ib.; Wright's Ten. 15; Spel. Treat. of Feuds, 33; 2 Bl. Com. 65.