Page images
PDF
EPUB

tefy y; and not in tenant for life or years. And the reason of the diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life, or for years, came in by the demise and leafe of the owner of the fee, and therefore he might have provided against the committing of waste by his lefsee; and if he did not, it was his own default. But, in favour of the owners of the inheritance, the statutes of Marsbridge a and Glocefter provided, that the writ of waste fhall not only lie against tenants by the law of England, for curtefy) and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years paft, all tenants merely for life, or for any lefs estate (except tenants by statute merchant, ftatute staple, recognizance, or elegit, against whom the debtor may set off the damages in account ) have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti ; that is, with a provision or protection that no man fhall impetere, or sue him, for waste committed.

THE punishment for waste committed was, by common law and the statute of Marlbridge, only single damages d; except in the case of a guardian, who also forfeited his wardship e by the provisions of the great charterf: but the statute of Glocester directs, that the other four species of tenants fhall lose and forfeit the place wherein the waste is committed, and also treble damages, to him that hath the inheritance. The expression of the statute is, “ he shall forfeit as the thing which he hath wasted ;” and it hath been determined, that under these words the place is also included 8. And if waste be done sparfim, or here and there, all over a wood, the whole wood shall be recovered ; or if in several rooms of a

y It was however a doubt whether waste was punishable at the common law in tenant by the curtesy. Regift. 72. Bro. Abr. tit, waste. 38. 2 Inft. zc1.

z 2 Inft. 299.
a 52 Hen. III. c. 23,

6 6 Edw. I. c. 5.
c Co. Litt. 54.
d 2 Inst. 146.
e Ibid. 300.
f. Hen. III. c.4.
$ 2 Inft. 303.

house, house, the whole house shall be forfeited h; because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood (or perhaps in one room of a house, if that can be conveniently separated from the rest) that part only is the locus vaftatus, or thing wafted, and that only shall be forfeited to the reversioner i.

VII. A seventh species of forfeiture is that of copyhold estates, by breach of the customs of the manor. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste; whereupon the lord may seize them without any prefentment by the homage k; but also to peculiar forfeitures, annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. And we may observe that, as these tenements were originally holden by the lowest and most abject vasals, the marks of feodal dominion continue much the strongest upon this mode of property. Most of the offences, which occafioned a refumption of the fief by the feodal law, and were denominated feloniae, per quas vafallus amitteret feudum', ftill continue to be causes of forfeiture in many of our modern copyholds. As, by subtraction of suit and service m; fi dominum defervire noluerit o : by disclaiming to hold of the lord, or swearing himself not his copyholder o; si dominum ejuravit, i.e. negavit se a domino feudum habere p : by neglect to be admitted tenant within a year and a day ? ; fi per annum et diem cessaverit in petenda investitura': by contumacy in not appearing in court after three proclamations; si a domino ter citatus non comparueritt: or by refusing, when sworn of the homage, to present the truth according to his oath"; h Co. Litt. 54

p Feud. l. 2. t. 34. & 1. 26. §. 3: i 2. Inft. 304.

9 Plowd. 372. k 2 Ventr. 38. Cro. Eliz. 499.

1 Feud. l. 2. t. 24. I Feud. 1. 2. 1. 26, in calc,

s 8 Rep. 99. Co. Copyh. S. 57. In 3 Leon. 108. Dyer, 211, .

i Feud. l. 2. t. 22. n Feud. l. 1, 1, 21.

u Co. Copyh. $.57. • Co. Copyh. §. 57.

fi pares veritatem noverint, et dicant fe nescire, cum fciant . In these, and a variety of other cases, which it is impossible here to enumerate, the forfeiture does not accrue to the lord till after the offences are presented by the homage, or jury of the lord's court baron *; per laudamentum parium fuerum Y : or, as it is more fully expressed in another place, nemo miles adimatur de poffeffione fui beneficii, nis convicta culpa, quae fit laudanda a per judicium parium suorum.

VIII. The eighth and last method, whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt : which unfortunate person may, from the several descriptions given of him in our ftatute law, be thus defined; a trader, who secretes himself, or does certain other acts, tending to defraud his creditors.

Who shall be such a trader, or what acts are sufficient to denominate him a bankrupt, with the several connected consequences resulting from that unhappy fituation, will be better considered in a subsequent chapter ; when we shall endeavour more fully to explain it's nature, as it most immediately relates to personal goods and chattels. I shall only here observe the manner in which the property of lands and tenements are transferred, upon the supposition that the owner of them is clearly and indisputably a bankrupt, and that a commiffion of bankrupt is awarded and issued against him.

By the statute 13 Eliz. c. 7. the commissioners for that purpose, when a man is declared a bankrupt, shall have full power to dispose of all his lands and tenements, which he had in his own right at the time when he became a bankrupt, or which shall descend or come to him at any time afterwards, before his debts are satisfied or agreed for ; and all lands and tenements which were purchased by him jointly with his wife or children to his own use, (or such interest therein as

w Feud. l. 2. t. 58.
* Co. Copyh. $. 58.
y Feud. l. 1. t. 21.

z Ibid, t. 22.

a i, e. arbitranda, definienda. Fresne. IV. 79.

Du he

he may lawfully part with) or purchased with any other perfon upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and inrolled, or divide them proportionably among the creditors. This statute expressly included not only free, but copyhold, lands : but did not extend to estates-tail, farther than for the bankrupt's life; nor to equities of redemption on a mortgaged estate, wherein the bankrupt has no legal interest, but only an equitable reversion. Whereupon the statute 21 Jac. I. c. 19. enacts, that the commissioners shall be impowered to sell or convey, by deed indented and inrolled, any lands or tenements of the bankrupt, wherein he shall be feised of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown ; and that such fale shall be good against all such issues in tail, remainder-men, and reversioners, whom the bankrupt himself might have barred by a common recovery, or other means : and that all equities of redemption upon mortgaged estates, shall be at the disposal of the commiffioners; for they shall have power to redeem the same, as the bankrupt himself might have done, and after redemption to sell them. And also, by this and a former act 6, all fraudulent conveyances to defeat the intent of these statutes are declared void ; but that no purchasor bona fide, for a good or valuable confideration, shall be affected by the bankrupt laws, unless the commission be sued forth within five years after the act of bankruptcy committed.

By virtue of these statutes a bankrupt may lose all his real estates; which may at once be transferred by his commiffioners to their assignees, without his participation or confent. CHAPTER THE NINET E ENTH.

b 1 Jac, I. c. 15.

OF TITLE BY ALIENATION.

THE most usual and universal method of acquiring a

title to real estates is that of alienation, conveyance, or purchase in it's limited sense : under which may be comprized any method wherein estates are voluntarily resigned by one man, and accepted by another; whether that be effected by fale, gift, marriage settlement, devise, or other transmission of property by the mutual consent of the parties.

This means of taking estates, by alienation, is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feodal Jawa, a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord ; left thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feodal fervices, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for, if he might, the feodal restraint of aliemation would have been eafily frustrated and evaded b. And, as he could not aliene it in his lifetime, fo neither could he by will defeat the succession, by devising his feud to another family; nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent, Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the confent of his owu next apparent, or presumptive, heir . And there.. fore it was very usual in antient feoffments to express, that

a See pag. 57:
+ Feud, boule de 27.

c Co. Litt. 54. Wright, 168.

the

« PreviousContinue »