Imagens das páginas
PDF

in its later stages to the ordinary incidents of pleading in an action, and, if there happened to be an ingenious counsel engaged, he could avert the consequences of the contempt, for a time at least, by raising some side issue. It may possibly have been for this reason that, at a later period, the Courts found it necessary to act in a more peremptory fashion.

One of the first of the definitions which a lawyer Feoffinents learns is that rent is an incorporeal hereditament, and one of the most rudimentary doctrines has been (before 8 & 9 Vict. c. 106. s. 2) that incorporeal hereditaments lie in grant and that corporeal hereditaments in possession lie in livery. It is also commonly said that, in the nature of things, livery could not be made of that which is incorporeal.

There are cases in the present volume which are inconsistent with these ideas, as they relate to "feoffments" of rent.

In the case No. 47 in Easter Term (Drayton v. Hole- ®f0%gTMee well) the defendant pleaded, in an action of Debt on tion conan obligation, a deed of defeasance, the condition of^'TM1^*1 which was that the obligation should be null if the should defendant "enfeoffed" the plaintiff of an annual rent ^°^t B' of 12s., and alleged that he had always been ready to "enfeoff." The plaintiff's replication was that the defendant was not, as he alleged, ready to "enfeoff," and issue was joined on that question of fact. There is not the least doubt that the expression "enfeoff" was used intentionally and not inadvertently, as it occurs in the two reports and in the record. It was therefore clearly contemplated that a title to rent might be acquired not only by grant or reservation, but also, like a title to corporeal hereditaments, by feoffment.

d 2

Grant of a Another case (No. 30 in the same term) is to the at"rentofHSLme effect- Jolm Dyen and John de Boys brought an id. for ^ action of Replevin against Robert de Bousser and Walter l1fenteeS Wetton. Robert, for himself and Walter, avowed the taking for homage and rent in arrear under the following circumstances. He said that Gilbert de Ful lyngmelle held of John Fitz-Andrew a water mill, two acres of pasture, and a moiety of one acre of meadow (whereof the place in which the taking was effected was parcel) by homage, fealty, escuage, and the rent of 24s. 2d. and 1 lb. of pepper per annum, that John Fitz-Andrew was seised of the services by the hand of Fullyngmelle, that John Fitz-Andrew granted the 24s. of rent to Richard Fitz-Andrew for Richard's life, to hold of John - Fitz-Andrew and his heirs by the service of one penny per annum, the rest of the services being reserved to John. He said also that Fullyngmelle afterwards aliened the tenements out of which the rent, &c. issued to John Buttetourt in fee, that John Fitz-Andrew granted the services as well as the reversion of the 248. of rent, expectant on the death of Richard FitzAndrew, together with all his tenements in Halstead, to John Bousser in fee, that Buttetourt thereupon attorned to John Bousser (the father of Robert Bousser the defendant) in respect of fealty, and the rent of 2d. and 1 lb. of pepper. Richard Fitz-Andrew also attorned to John Bousser in respect of the lcZ. of rent. Afterwards John Buttetourt aliened the tenements to John Buttetourt the younger, to hold of the chief lords, in fee, and he attorned to Robert Bousser (as son and heir of John Bousser) in respect of fealty and the rent of 2d. and 1 lb. of pepper, and aliened the tenements to John Dyen and John de Boys the plaintiffs.

Feoffment Afterwards Richard Fitz-Andrew, who then held for tbef24°fof his life the 24.s. of rent of Robert Bousser, enfeoffed

rent by ( feoffavit) thereof John Buttetourt the elder, in fee.

tenant for v/'

life.

Upon this Robert Bousser, seeing that the alienation The rever

was to his disinheritance, "seisivit in manum suam 610ner

'- seizes or

"redditum ilium," as it is expressed in the record, or, enters upon as it expressed in the body of one report and thethe reut' marginal abstract of the other, " entra la rente."

It will be seen that other words besides "grant" Kent are used in relation to rent, and that it is treated again '^same" and again in the same manner as a corporeal heredi- manner as tament. A rent of 24s. is held at a rent of Id. just he'reSua^*1 as land might be held. The tenant for life alienes the ment. 24s. of rent in fee, and he does this not by grant but by feoffment, just as he would aliene land. The reversioner then "enters" precisely as he would enter upon land in a similar case.1

It has appeared to be a part of the duty of the Editor to call attention to these two cases in the volume in which they appear. A feoffment of (inter alia) rent is also mentioned in the first case in Trinity Term. These are, however, only illustrations of a very much larger subject—the feoffment and livery of incorporeal hereditaments—which may, perhaps, be more comprehensively treated on some future occasion.

A statute2 passed only in the fourteenth year of Jj°^rpfretB" the reign had already given rise to some litigation in statutes: Easter Term. It was to the effect that the Kingthe,A(* should not make collations or presentations to bene- ward HI. fices, by reason of the vacancy of bishoprics, or by Stat- 4. creason of the lands of minors having come into his hands, unless he made such collations or presentations within three years after the time at which the benefices

[ocr errors]

became actually vacant, and that he should not have any action for right of presentation to such benefices in cases in which clerks had been in possession of them for one entire year before the making of the Statute, and that no one should be bound to answer the King as to any writ of Quare impedit in such case unless the King had made his collation or presentation within three years after the time of the vacancy, it was not There are two cases in the present volume (Nos. 51 retrospec- ^ Easter Term) in which the construction of

the Statute was argued. In each case the King had brought a Quare impedit, and in each case the defendant pleaded the Statute. In both the point taken was that the benefice was full for a year and more before the Statute.

In the first case there was no express decision on the point (though it is said that the Court was of opinion that the Statute did not apply to presentations made before it was enacted), but issue was joined on a question of fact. The second case, however, was decided on the point of law as to the interpretation of the Statute. For the King it was said, as appears by the record, that the Statute could not be applied (" diverti") to presentations made before the Statute itself, but should be restricted to those subsequently made, more particularly as the King had not by any special words in the Statute revoked or annulled his presentations made before the Statute or his writs of Qware impedit previously purchased and still pending and undetermined in his Court. It was said, too, that, in this particular instance, the King had made the presentation and obtained the writ long before the enactment of the Statute. And, as the Bishop's answer was that the benefice was full for a year before the date of the Statute, and as such plenarty could not be allowed against the King at common law or maintained under the Statute, judgment was prayed for the King.

Judgment was given as prayed " because it appeared "to the Court that this Statute could not be under"stood as applying to presentations made before it "or to writs purchased before it."

In a case in Trinity Term (No. 14)1 there is a passing The Act reference to another Statute of the same year (14 Ed- ^a^in ward III., Stat. 1, c. 17). It was therein provided ?. 17. not that the Jurata utrum should lie for Wardens of Chapels ^^^e10 and others therein mentioned. It was incidentally re- existing marked by counsel that, if a Master of a Hospital aliened without the consent of the other Brethren of the Hospital, the Jurata utrwm would, under the Act, lie for his successor. Shardelowe, J., however, very distinctly denied this, and pointed out that the mischief which the Statute was intended to relieve was that which affected Wardens of Chapels or others who were without remedy at common law. The Master of a Hospital, on the contrary, already had his remedy for the supposed wrong, which, according to Shardelowe was a writ of Entry sine assenm Capituli, or, according to Parning, J., in a second report of the same case, sine assensu Fratnim. The latter is obviously the more correct expression, and there is in fact a writ of Entry sine assensu Fratum et Sororum in the Register. The words of Shardelowe are, however, only to be applied to cases like that before him, in which the House was Collegiate and had a Common Seal. It was, in later times, at any rate, law that the Master or Warden of a Hospital without College or Common Seal could have the Jurata utrum? In relation to the action said to lie for a Master who was the Head of a Collegiate House, it is to be observed that the remedy mentioned by Littleton is a writ of Right.3

[ocr errors][ocr errors]
« AnteriorContinuar »