Blackstone's Commentaries on the Laws of England
Book the Second - Chapter the Eighteenth : Of Title by Forfeiture
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Chapter the eighteenth.
Of TITLE by FORFEITURE.
Forfeiture is a punifhment annexed by law to fome illegal act, or negligence, in the owner of lands, tenements, or hereditaments; whereby he lofes all his intereft therein, and they go to the party injured, as a recompenfe for the wrong which either he alone, or the public together with himfelf, hath fuftained.
Lands, tenements, and hereditaments, may be forfeited in various degrees and by various means:
i. By alienation contrary to law. 3. By non-prefentation to a benefice, when the forfeiture is denominated a lapfe. 4. By fimony. 5. By non-performance of conditions. 6. By wafte. 7. By breach of copyhold cuftoms. 8. By bankruptcy.
I. The foundation and juftice of forfeitures for crimes and mifdemefnors, and the feveral degrees of thofe forfeitures, preceding volume
a; but will be more properly confidered, and more at large, in the fourth book of thefe commentaries. At prefent I fhall only obferve in general, that the offences which induce a forfeiture of lands and tenements to the crown are principally the following fix;
I. Treafon. 2. Felony. 3. Mifprifion of
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a Vol. I. pag. 289.
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Kk2
treafon.
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treafon. 4. Praemunire. 5. Drawing a weapon on a judge, or ftriking any one in the prefence of the king's principal courts of juftice. 6. Popifh recufancy, or non-obfervance of certain laws enacted in reftraint of papifts. But at what time they feverally commence, how far they extend, and how long they endure, will with greater propriety be referved as the object of our future enquiries.
II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants; in the two former of which cafes the forfeiture arifes from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.
1. Alienation in mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, fole or aggregate, ecclefiaftical or temporal. But thefe purchafes having been chiefly made by religious houfes, in confequence whereof the lands became perpetually inherent in one dead hand, this hath occfioned the general appellation of mortmain to be applied to fuch alienations
b, and the religious houfes themfelves to be principally confidered in forming the ftatutes of mortmain : in deducing the hiftory of which ftatutes, it will be matter of curiofity to obferve the great addrefs and fubtil contrivance of the ecclefiaftics in eluding from time to time the laws in being, and the zeal with which fucceffive parliaments have purfued them through all their fineffes ; how new remedies were ftill the parents of new evafions ; till the legiflature at laft, though with difficulty, hath obtained a decifive victory.
By the common law any man might difpofe of his lands to any other private man at his own difcretion, efpecially when the feodal reftraints of alienation were worn away. Yet in confequence of thefe it was always, and is ftill, neceffary
c, for corpo-
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b See Vol. 1. pag. 467.
c F. N. B. 121.
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rations to have a licence of mortmain from the crown, to enable them to purchafe lands : for as the king is the ultimate lord of every fee, he ought not, unlefs by his own confent, to lofe his privilege of efcheats and other feodal profits, by the vefting of lands in tenants that can never be attainted or die. And fuch licences of mortmain feem to have been neceffary among the Saxons, above fixty years before the Norman conqueft
d. But, befides this general licence from the king, as lord paramount of the kingdom, it was alfo requifite, whenever there was a mefne or intermediate lord between the king and the alienor, to obtain his licence alfo (upon the fame feodal principles) for the alienation of the fpecific land. And if no fuch licence was obtained, the king or other lord might refpectively enter on the lands fo aliened in mortmain, as a forfeiture. The neceffity of this licence from the crown was acknowleged by the conftitutions of Clarendon
e, in refpect of advowfons, which the monks always greatly coveted, as being the groundwork of fubfequent appropriations
f. Yet fuch were the influence and ingenuity of the clergy, that (notwithftanding this fundamental principle) we find that the largeft and moft confiderable dotations of religious houfes happened within lefs than two centuries after the conqueft. And (when a licence could not be obtained) their contrivance feems to have been this : that, as the forfeiture for fuch alienations accrued in the firft place to the immediate lord of the fee, the tenant who meant to alienate firft conveyed his lands to the religious houfe, and inftantly took them back again, to hold as tenant to the monaftery ; which kind of inftantaneous feifin was probably held not to occafion any forfeiture : and then, by pretext of fome other forfeiture, furrender, or efcheat, the fociety entered into thofe lands in right of fuch their newly acquired figniory, as immediate lords of the fee. But, when thefe dotations began to grow numerous, it was obferved that the feodal fervices, ordained for the defence of the kingdom, were every day vifibly withdrawn ; that the circulation of landed property from man to man began to
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d Selden. Jan. Angl. l. 2. §. 45.
- Ecclefias de feudo domini Regis non poffunt in perpetuum dari, abfque affenfu et confenfione ipfius. c. 2. A. D. 1164.
f See Vol. I. pag. 373.
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ftagnate
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ftagnate; and that the lords were curtailed of the fruits of their figniories, their efcheats, wardfhips, reliefs, and the like : and therefore, in order to prevent this, it was ordained by the fecond of king Henry III's great charters
g, and afterwards by that printed in our common ftatute-books, that all fuch attempts fhould be void, and the land forfeited to the lord of the fee
h.
But, as this prohibition extended only to religious houfes, bifhops and other fole corporations were not included therein ; and the aggregate ecclefiaftical bodies (who, fir Edward Coke obferves
I, in this were to be commended, that they ever had of their counfel the beft learned men that they could get) found many means to creep out of this ftatute, by buying in lands that were bona fide holden of themfelves as lords of the fee, and thereby evading the forfeiture; or by takinglong leafes for years, which firft introduced thofe extenfive terms, for a thoufand or more years, which are now fo frequent in conveyances. This produced the ftatute de religiofis, 7 Edw. I ; which provided, that no perfon, religious or other whatfoever, fhould buy, or fell, or receive, under pretence of a gift, or term of years, or any other title whatfoever, nor fhould by any art or ingenuity appropriate to himfelf, any lands or tenements in mortmain ; upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and in default of all of them, the king, might enter thereon as a forfeiture.
This feemed to be a fufficient fecurity againft all alienations inmortmain : but, as thefe ftatutes exended only to gifts and conveyances between the parties, the religious houfes now began to fet up a fictitious title to the land, which it was intended they fhould have, and to bring an action to recover it againft the tenant ;
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g A.D. 1217. cap. 43. edit. Oxon.
- Non licet alicui de caetero dare terram fuam alicui domui religiofae, ita quod illam refumat tencndum de eadem domo ; nec liceat alicui domui religiofae terram alicujus fic accipere, quod tradat illam ei a quo ipfam receipt tenendam : fi quis autem autem de caetero terram fuam domui religiofae fic dederit, et fuper hoc convincatur, donum fuum penitus caffetur, et terra illa domino fuo illius feodi incurratur. Mag. Cart. 9 Hen. III. c. 36.
i 2 Inft. 75.
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who,
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who, by fraud and collufion, made no dcfence, and thereby judgment was given for the religious houfe, which then recovered the land by fentence of law upon a fuppofed prior title. And thus they had the honour of inventing thofe fictitious adjudications of right. which are fince become the great affurance of the kingdom, under the name of common recoveries. But upon this the ftatute of Weftminfter the fecond, 13 Edw. I. c. 32. enacted, that in fuch cafes a jury fhall try the true right of the demandants or plaintiffs to the land, and if the religious houfe or corporation be found to have it, they fhall ftill recover feifin; otherwife it fhall be forfeited to the immediate lord of the fee, or elfe to the next lord, anf finally to the king, upon the immediate or other lord's default. And the like provifion was made by the fucceeding chapter
k, in café the tenants fet up croffes upon their lands (the badges of knights templars and hofpitallers) in order to protect them from the feodal demands of their lords, by virtue of the privileges of thofe religious and military orders. And fo careful was this this provident prince to prevent any future evafions, that when the ftatute of quia emptores, 18 Edw. I. abolifhed all fubinfeudations, and gave liberty for all men to alienate their lands to be holden of the next immediate lord
l, a provifo was inferted
m that this fhould not extend to authorize any kind of alienation in mortmain. And when afterwards the method of obtaining the king's licence by writ of ad quod damnum was marked out, by the ftatute 27 Edw. I. ft. 2. it was farther provided by ftatute 34 Edw. I. ft. 3. that no fuch licence fhould be effectual, without the confent of the mefne or intermediate lords.
Yet ftill it was found difficult to fet bounds to ecclefiaftical ingenuity : for when they were driven out of all their former holds, they devifed a new method of conveyance, by which the lands were granted, not to themfelves directly, but to nominal feoffees to the ufe of the religious houfes ; thus diftinguifhing between the poffeffion and the ufe, and receiving the actual profits,
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k capt. 33.
I 2 Inft. 501.
m cap. 3.
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while
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while the feifin of the land remained in the nominal feoffee : who was held by the courts of equity (then under the direction of the clergy) to be bound in confcience to account to his ceftuy que ufe for the rents and emoluments of the eftate. And it is to thefe inventions that our practifers are indebted for the introduction of ufes and trufts, the foundation of modern conveyancing. But, unfortunately for the inventors themfelves, they did not long enjoy the advantage of their new device, for the ftatute 15 Ric. II. c. 5. enacts, that the lands which had been fo purchafed to ufes fhould be amortifed by licence from the crown, or elfe be fold to private perfons ; and that, for the future, ufes fhall be fubject to the ftatutes of mortmain, and forfeitable like the lands themfelves. And whereas the ftatutes had been eluded by purchafing large tracts of land, adjoining to churches, and confecrating them by the name of church-yards, fuch fubtile imagination is alfo declared to be within the compafs of the ftatutes ofmortmain. And civil or lay corporations, as well as ecclefiaftical, are alfo declared to be within the mifchief, and of courfe within the remedy provided by thofe falutary laws. And, laftly, as during the times of popery lands were frequently given to fuperftitious ufes, though not to any corporate bodies ; or were made liable in the hands of heirs and devifees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed ftate as actual alienations in mortmain ; therefore, at the dawn of the reformation, the ftatute 22 Hen. VIII. c. 10. declares, that all future grants of lands for any of the purpofesaforefaid, if granted for any longer term than twenty years, fhall be void.
But, during all this time, it was in the power of the crown, by granting a licence of mortmain, to remit the forfeiture, fo far as related to it's own rights ; and to enableany fpiritual or other corporation to purchafe and hold any lands or tenements in perpetuity : which prerogative is declared and confirmed by the ftatute 18 Edw. III. ft. 3. c. 3. But, as doubts were conceived at the time of the revolution how far fuch licence was valid
n, fince
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n 2 Hawk. P. C. 391.
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the king had no power to difpenfe with the ftatutes of mortmain by a claufe of non obftante
o, which was the ufual courfe, though it feems to have been unneceffary
p; and as, by the gradual declenfion of mefne figniories through the long operation of the ftatute of quia emptores, the rights of intermediate lords were reduced to a very fmall compafs ; it was therefore provided by the ftatute 7 & 8 W. III. c. 37. that the crown for the future at it's own difcretion may grant licences to aliene or take in mortmain, of whomfoever the tenements may be holden.
After the diffolution of monafteries under Henry VIII, though the policy of the next popifh fucceffor affected to grant a fecurity to the poffeffors of abbey lands, yet, in order to regain fo much of them as either the zeal or timidity of their owners might induce them to part with, the ftatutes of mortmain were fufpended for twenty years by the ftatute 1 & 2 P. & M. c. 8. and, during that time, any lands or tenements were allowed to be granted to any fpiritual corporation without any licence whatfoever. And, long afterwards, for a much better purpofe, the augmentation of poor livings, it was enacted by the ftatute 17 Car. II. c. 3. that appropriators may annex the great tithes to the vicarages ; and that all benefices under 100 l. per annum may be augmented by the purchafe of lands, without licence of mortmain in either café : and the like provifion hath been fince made, in favour of the governors of queen anne's bounty
q. It hath alfo been held
r, that the ftatute 23 Hen. VIII. before-mentioned did not extend to any thing but fuperftitious ufes ; and that therefore a man may give lands for the maintenance of a fchool, an hofpital, or any other charitable ufes. But as it was apprehended from recent experience, that perfons on their deathbeds might make large and improvident difpofitions even for thefe good purpofes, and defeat the political ends of the ftatutes of mortmain ; it is therefore enacted by the ftatute 9 Geo. II. c. 36. that no lands or tenements, or money to be laid out thereon.
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o Stat. 1. W. & M. ft. 2. c. 2.
p Co. Litt. 99.
q Stat. 2 & 3 Ann. c. 11.
r 1 Rep. 24.
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fhall be given for or charged with any charitable ufes whatfoever, unlefs by deed indented, executed in the prefence of two witneffes twelve calendar months before the death of the donor, and enrolled in the court of chancery within fix months after it's execution, (except ftocks in the public funds, which may be transferred within fix months previous to the donor's death) and unlefs fuch gift be made to take effect immediately, and be without power of revocation : and that all other gifts fhall be void. The two univerfities, their colleges, and the fcholars upon the foundation of the colleges of Eaton, Winchefter, and Weftminfter, are excepted out of this act : but fuch exemption was granted with this provifo, that no college fhall be at liberty to purchafe more advowfons, than are equal in number to one moiety of the fellows or ftudents, upon the refpective foundations.
2. Secondly, alienation to an alien is alfo a caufe of forfeiture to the crown of the lands fo alienated, not only on account of his incapacity to hold them, which occafions him to be paffed by in defcents of land
s, but likewife on account of his prefumption in attempting, by an act of his own, to acquire any real property ; as was obferved in the preceding volume
t.
3. Lastly, alienations by particular tenants, when they are greater than the law entitles them to make, and deveft the remainder or reverfion
v, are alfo forfeitures to him whofe right is attacked thereby. As, if tenant for his own life alienes by feoffment or fine for the life of another, or in tail, or in fee; thefe being eftates, which either muft or may laft longer than his own, the creating them is not only beyond his power, and inconfiftent with the nature of his intereft, but is alfo a forfeiture of his own particular eftate to him in remainder or reverfion
u. For which there feem to be two reafons. Firft, becaufe fuch alienation amounts to a renuntiation of the feodal connexion and dependence; it implies a refufal to perform the due renders and fervices to the lord
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s See pag. 249. 250.
t Book I. ch. 10.
v Co. Litt. 251.,
u Litt. §. 415.
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of the fee, of which fealty is conftantly one ; and it ends in it's confequences to defeat and deveft the remainder or reverfion expectant : as therefore that is put in jeopardy, by fuch act of the particular tenant, it is but juft that, upon difcovery, the particular eftate fhould be forfeited and taken from him, who has fhewn fo manifeft an inclination to make an improper ufe of it. The other reafon is, becaufe the particular tenant, by granting a larger eftate than his own, has by his own act determined and put an entire and to his own original intereft; and on fuch determination the next taker is intitled to enter regularly, as in his remainder or reverfion. The fame law, which is thus laid down with regard to tenants for life, holds alfo with repect to all tenants of the mere freehold, or of chattel interefts ; but if tenant in tail alienes in fee, this is no immediate forfeiture to the remainder-man , but a mere difcontinuance (as it is called
w) of the eftate-tail, which he iffue may afterwards avoid by due courfe of law
x : for he in remainder or reverfion hath only a very remote and barely poffible intereft therein, until the iffue in tail is extinct. But, in café of fuch forfeitures by particular tenants, all legal eftates by them before created, as if enant for twenty years grants a leafe for fifteen, and all charges by him lawfully made on the lands, fhall be good and available in law
y. For the law will not hurt an innocent leffee for the fault of his leffor ; nor permit the leffor, after he has granted a good and lawful eftate, by his own act to avoid it, and defeat the intereft which he himfelf has created.
Equivalent, both in it's nature and it's confequences, to an illegal alienation by the particular tenant, is the civil crime of difclaimer ; as where a tenant, who holds of any lord, neglects to render him the due fervices, and upon an action brought to recover them, difclaims to hold of his lord. Which difclaimer of tenure in any court of record is a forfeiture of the lands to the lord
z, upon reafons moft apparently feodal. And fo likewife, if
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w See Book III.
z Litt. §. 595, 6, 7.
y Co. Litt. 233.
z Finch. 270, 271.
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in any court of record the particular tenant does any act which amounts to a vitual difclaimer ; if he claims any greater eftate than was granted him at the firft infeodation, or takes upon himfelf thofe rights which belong only to tenants of a fuperior clafs
a; if he affirms the reverfion to be in a ftranger, by accepting his fine, attorning as his tenant, collufive pleading, and the like
b; fuch behaviour amounts to a forfeiture of his particular eftate.
III. Lapse is a fpecies of forfeiture, whereby the right of prefenation to a church accrues to the ordinary by neglect of the patron to prefent, to the metropolitan by neglect of the ordinary, and to the king by neglect of the metropolitan. For it being for the intereft of religion, and the good of the public, that the church fhould be provided with an officiating minifter, the law has therefore given this right of lapfe, in order to quicken the patron ; who might otherwife, by fuffering the church to remain vacant, avoid paying his ecclefiaftical dues, and fruftrate the pious intentions of his anceftors. This right of lapfe was firft eftablifhed about the time (though not by the authority
c) of the council of Lateran
d, which was in the reign of our Henry the fecund, when the bifhops firft began to exercife univerfally the right of inftitution to churches
e. And therefore, where there is no right of inftitution, there is no right of lapfe : fo that no donative can lapfe to the ordinary
f, unlefs it hath been augmented by the queen's bounty
g. But no right of lapfe can accrue, when the original prefenation is in the crown
h.
The term, in which the title to prefent by lapfe accrues from the one to the other fucceffively, is fix calendar months
i; (following in this café the computation of the church, and not the ufual one of the common law) and this exclufive of the day of
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a Co. Litt. 152.
b Ibid. 153.
c 2 Roll. Abr. 336. pl. 10.
d Bracton. l. 4. tr. 2. c. 3.
e See pag. 23.
f Bro. Abr. tit. 2uar. Imped. 131. Cro. Ja c. 518.
g Stat. 1 Geo. I. ft. 2. c. 10.
h stat. 17 Edw. II. c. 8. 2 Inft. 273.
i 6 Rep. 62. Regiftr. 42.
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the avoidance
k. But, if the bifhop be both patron and ordinary, he fhall not have a double time allowed him to collate in
l; for the forfeiture accrues by law, whenever the negligence has continued fix months in the fame perfon. And alfo, if the bifhop doth not collate his own clerk immediately to the living, and the patron prefents, though after the fix months are lapfed, yet his prefentation is good, and the bifhop is bound toi inftitute the patron's clerk
m . For as the law only gives the bifhop this title by lapfe, to punifh the patron's negligence, there is no reafon that, if the bifhop himfelf be guilty of equal or greater negligence, the prefentation to lapfe to the metropolitan, the patron alfo has the fame advantage if he prefents before the arch-bifhop has filled up the benefice ; and that for the fame reafon. Yet the ordinary cannot, after lapfe to the metropolitan, collate his own clerk to the prejudice of the arch-bifhop
n. For he had no permanent right and intereft in the advowfon, as the patron hath, but merely a temporary one; which having neglected to make ufe of during the time, he cannot afterwards retrieve it. But if the prefentation lapfes to the king, prerogative here intervenes and makes a difference ; and the patron fhall never recover his right, till the king has fatisfied his turn by prefentation: for nullum tempus occurrit regi
o. And therefore it may feem, as if the church might continue void for ever, unlefs the king fhall be pleafed to prefent ; and a patron thereby be abfolutely defeated of his advowfon. But to prevent this inconvenience, the law has lodged a power in the patron's hands, of as it were compelling the king to prefent. For if, during the delay of the crown, the patron himfelf prefents, and his clerk is inftituted, the king indeed by prefenting another may turn out the patron's clerk ; but if he does not, and the patron's clerk dies incumbent, or is canonically deprived, the king hath loft his right, which was only to the next or firft prefentation
p.
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k 2 Inft. 361.
i Gibf. Cod. 769.
m 2 Inft. 273.
n 2 Roll. Abr. 368.
o Dr. & St. d. 2. c. 36. Cro. Car. 355.
p. 7 Rep. 28. Cro. Eliz. 44.
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In cafe the benefice becomes void by death, or ceffion through plurality of benefices, there the patronis bound to take notice of the vacancy at his own peril ; for thefe are matters of equal notoriety to the patron and ordinary : but in café of a vacancy by refignation, or canonical deprivation, or if a clerk prefented be refufed for infufficiency, thefe being matters of which the bifhop alone is perfumed to be cognizant, here the law requires him to give notice thereof to the patron, otherwife he can take no advantage by way of lapfe
q. Neither fhall any lapfe thereby accrue to the metropolitan or to the king ; for it is univerfally true, that neither the arch-bifhop or the king fhall ever prefent by lapfe, but where the immediate ordinary might have collated by lapfe, within the fix months, and hath exceeded his time : for the firft ftep or beginning faileth, et quod non babet principium, non babet finem
r. If the bifhop refufe or neglect to examine and admit the patron's clerk, without good reafon affigned or notice given, he is ftiled a difturber by the law, and fhall not have any title to prefent by lapfe ; for no man fhall taken advantage of his own wrong
g. Alfo if the right of prefentation be litigious or contefted, and an action be brought againft the bifhop to try the title, no lapfe fhall incur till the queftion of right be decided
t.
IV. BY fimony, the right of prefenation to a living is forfeited, and vefted pro hac vice in the crown. Simony is the corrupt prefenation of any one to an ecclefiaftical benefice for money, gift, or reward. It is fo called from the refemblance it is faid to bear to the fin of Simon Magus, though the purchafing of holy orders feems to approach nearer to his offence. It was by the canon law a very grievous crime : and is fo much the more odious, becaufe, as fir Edward Coke obferves
u, it is ever accompanied with perjury ; for the prefentee is fworn to have committed no fimony. However it is not an offence punifhable in a cri-
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q 4 Rep. 75. 2 Inft. 632.
r Co. Litt. 344. 345.
s 2 Roll. Abr. 369.
t Co. Litt. 344.
u 3 Inft. 156.
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minal way at the common law
w; it being thought fufficient to leave the clerk to ecclefiaftical cenfures. But as thefe did not affect the fimoniacal patron, nor were efficacious enough to repel the notorious practice of the thing, divers acts of parliament have been made to reftrain it by means of civil forfeitures; which the modern prevailing ufage, with regard to fpiritual preferments, calls aloud to be put in execution. I fhall briefly confider them in this place, becaufe they diveft the corrupt patron of the right of prefentation, and veft a new right in the crown.
BY the ftatute 31 Eliz. c. 6. it is for avoiding of fimony enacted, that if any patron for any corrupt confideration, by gift or promife,m directly or indirectly, fhall prefent or collate any perfon to an ecclefiaftical benefice or dignity; fuch prefentation fhall be void, and the prefentee be rendered incapable of ever enjoying the fame benefice : and the crown fhall prefent to it for that turn only
x. Alfo by the ftatute 12 Ann. ftat. 2. c. 12. if any perfon for money or profit fhall procure, in his own name or the name of any other, the next prefenation to any living ecclefiaftical, and fhall be prefented thereupon, this is declared to be a fimoniacal contract ; and the party is fubjected to all the ecclefiaftical penalties of fimony, is difabled from holding the benefice, and the prefentation devolves to the crown.
UPON thefe ftatutes many queftions have arifen, with regard to what is, and what is not fimony. And, among others, thefe points feem to be clearly fettled : 1. That to purchafe a prefentation, the living being actually vacant, is open and notorious fimony
y ; this being expreffly in the face of the ftatute. 2. That for a clerk to bargain for the next prefentation, the incumbent being fick and about to die, was fimony, even before the ftatute of queen Anne
z: and now, by that ftatute, to purchafe, either in his own name or another's, the next prefentation, and be
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w Moor. 564.
x For other penalties inflicted by this ftatute, fee Book IV.
y Cro. Eliz. 788. Moor. 914.
z Hob. 165.
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thereupon prefented at any future time to the living, is direct and palpable fimony. But, 3. It is held that for a father to purchafe fuch a prefentation, in order to provide for his fon, is not fimony : for the fon is not concerned in the bargain, and the father is by nature bound to make a provifion for him
a. 4. That if a fimoniacal contract be made with the patron, the clerk not being privy thereto, the prefentation for that turn fhall indeed devolve to the crown, as a punifhment of the guilty patron ; but the clerk, who is innocent, does not incur any difability or forfeiture
b. 5. That bonds given to pay money to charitable ufes, on receiving a prefentation to a living, are not fimoniacal
c, provided the patron or his relations be not benefited thereby
d; for this is no corrupt confideration, moving to the patron. 6. That bonds of refignation, in café of non-refidence or taking any other living, are not fimoniacal
e; there being no corrupt confideration herein, but fuch only as is for the good of the public. So alfo bonds to refign, when the patron's fon comes to canonical age, are legal ; upon the reafon before given, that the father is bound to provide for this fon
f. 7. Laftly, general bonds to refign at the patron's requeft are held to be legal
g: for they may poffibly be given for one of the legal confiderations before-mentioned; and where there is a poffibility that a tranfaction may be fair , the law will not fuppofe it iniquitous without proof. But, if the party can prove the contract to have been a corrupt one, fuch proof will be admitted, in order to fhew the bond fimoniacal, and therefore void. Neither will the patron be fuffered to make an ill ufe of fuch a general bond of refignation ; as by extorting a compofition for tithes, procuring an annuity for his relation, or by demanding a refignation wantonly and without good caufe, fuch as is approved by the law ; as, for the benefit of his own fon, or on account of non-refidence, plurality of livings, or grofs immorality in the incumbent
h.
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a Cro Eliz. 686. Moor. 916.
b 3 Inft. 154. Cro. Jac. 385.
c Noy 142.
d Star. 534.
e Cro. Car. 180.
f Cro. Jac. 248. 274.
g Cro. Car. 180. Star. 227.
h 1 Vern. 411. 1 Equ. Caf. abr. 86, 87. Stra. 534.
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V. THE next kind of forfeitures are thofe by breach or nonperformance of a condition annexed to the eftate, either expreffly by deed at it's original creation, or impliedly by law from a principle of natural reafon. Both which we confidered at large in a former chapter
i .
VI. I THEREFORE now proceed to another fpecies of forfeiture, viz. by wafte. Wafte, vaftum, is a fpoil or deftruction in houfes, gardens, trees, or other corporeal hereditaments, to the difherifon of him that hath the remainder or reverfion in feefimple or fee-tail
k.
WASTE is either voluntary, which is a crime ofcommiffion, as by pulling down a houfe; or it is permiffive, which is a matter of omiffion only, as by fuffering it to fall for want of
neceffary reparations. Whatever does a lafting damage to the freehold or inheritance is wafte
l. Therefore removing wainfcot, floors, or other things once fixed to the freehold of a houfe, is wafte
m. If a houfe be deftroyed by tempeft, lightening, or the like, which is the act of providence, it is no wafte : but otherwife, if the houfe be burnt by the ftatute 6 Ann. c. 3. no action will lie againft a tenant for an accident of this kind, left misfortune be added to misfortune. Wafte may alfo be committed in ponds, dove-houfes, warrens, and the like ; by fo reducing the number of the creatures therein, that there will not be fufficient for the reverfioner when he comes to the inheritance
n. Timber alfo is part of the inheritance
o. Such are oak, afh, and elm in all places : and in fome particular countries, by local cuftom, where other trees are generally ufed for building, they are thereupon confidered as timber ; and to cut down fuch trees, or top them, or do any other act whereby the timber may decay, is wafte
p. But underwood
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I See chap. 10. pag. 152.
k Co. Litt. 53.
l Hetl. 35.,
m 4 Rep. 64.
n Co. Litt. 53.
o 4 Rep. 62.
p Co. Litt. 53.
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the tenant may cut down at any feafonable time that he pleafes
q; and may take fufficient eftovers of common right for houfe-bote and cart-bote ; unlefs reftrained (which is ufual) by particular covenants or exceptions
r. The converfion of land from one fpecies to another is wafte. To convert wood, meadow, or pafture, into arable ; to turn arable, meadow, or pafture into woodland ; or to turn arable or woodland into meadow or pafture ; are all of them wafte
s. For, as fir Edward Coke obferves
t, it not only changes the courfe of hufbandry, but the evidence of the eftate ; when fuch a clofe, which is conveyed and defcribed as pafture, is found to be arable, and e converfo. And the fame rule is obferved, for the fame reafon, with regard to converting one fpecies of edifice into another, even though it is improved in it's value
u. To open the land to fearch for mines of metal, coal,
a, is wafte ; for that is a detriment to the inheritance w : but, if the pits or mines were open before, it is no wafte for the tenant to continue digging them for his own ufe x; for it is now become the mere annual profit of the land. Thefe three are the general heads of wafte, viz. in houfes, in timber, and in land. Though, as was before faid, whatever tends to the deftruction, or depreciating the value, of the inheritance, is confidered by the law as wafte.
LET us next fee, who are liable to be punifhed for committing wafte. And by the feodal law, feuds being originally granted for life only, we find that the rule was general for all vafals or feudatories ; “fi vafallus feudum diffipaverit, aut infigni detrimento “deterius fecerit, privabitur y.” But in our antient common law the rule was by no means fo large ; for not only he that was feifed of an eftate of inheritance might do as he pleafed with it, but alfo wafte was not punifhable in any tenant, fave only in three perfons ; guardian in chivalry, tenant in dower, and tenant by
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q 2 Roll. Abr. 817.
r Co.Litt. 41.
s Hob. 296.
t 1 Inft. 53.
u 1 Lev. 309.
w 5 Rep. 12.
x Hob. 295.
y Wright. 44.
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the curtefy z ; and not in tenant for life or years a. And the reafon of the diverfity was, that the eftate of the three former was created by the act of the law itfelf, which therefore gave a remedy againft them : but tenant for life, or for years, came in by the demife and leafe of the owner of the fee, and therefore he might have provided againft the committing of wafte by his leffee ; and if he did not, it was his own default. But, in favour of the owners of the inheritance, the ftatutes of Marlbridge b and Glocefter e provided, that the writ of wafte fhall not only lie againft tenants by the law of England (or curtefy) and thofe in dower, but againft any farmer or other that holds in any manner for life or years. So that, for above five hundred years paft, all tenants for life or for any lefs eftate, have beenpunifhable or liable to be impeached for wafte, both voluntary and permiffive ; unlefs their leafes be made, as fometimes they are, without impeachment of wafte, abfque impetitione vafti; that is, with a provifion or protection that no man fhall impetere, or fue him, for wafte committed.
THE punifhment for wafte committed was, by common law and the ftatute of Marlbridge, only fingle damages d; except in the café of a guardian, who alfo forfeited his wardfhip e by the provifions of the great charter f: but the ftatute of Glocefter directs, that the other four fpecies of tenants fhall lofe and forfeith the place wherein the wafte is committed, and alfo treble damages, to him that hath the inheritance. The expreffion of the ftatute is, “he fhall “forfeit the thing which he hath wafted ;” and it hath been determined, that under thefe words the place is alfo included g. And if wafte be done fparfim, or here and there, all over a wood, the whole wood fhall be recovered ; or if in feveral rooms of a houfe, the whole houfe fhall be forfeited h; becaufe it is impracticable for the reverfioner to enjoy only the identical places wafted,
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z It was however a doubt whether wafte was punifhable at the common law in tenant by the curtefy. Regift. 72. Bro. Abr. tit. wafte. 88. 2 Inft. 301.
a 2 Inft. 299.
b 52 Hen. III. c. 24.
c 6 Edw. I. c. 5.
d 2 Inft. 146.
e Ibid. 300.
f 9 Hen. III. c. 4.
g 2. Inft. 303.
h Co. Litt. 51.
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when lying interfperfed with the other. But if wafte be done only in one end of a wood (or perhaps in one room of a houfe) if that can be conveniently feparated from the reft, that part only is the locus vaftatus, or thing wafted, and that only fhall be forfeited to the reverfioner i .
VII. A SEVENTH fpecies of forfeiture is that of copyhold eftates, by breach of the cuftoms of themanor. Copyhold eftates are not only liable to the fame forfeitures as thofe which are held in focage, for treafon, felony, alienaton, and wafte; whereupon the lord mayfeife them without any prefentment by the homagek; but alfo to peculiar forfeitures, annexed to this fpecies of tenure, which are incurred by the breach of either the general cuftoms of all copyholds, or the peculiar local cuftoms of certain particlar manors. and we may obferve that, as thefe tenements were originally holden bythe loweft and moft abject vafals, the marks of feodal dominion continue much the ftrongeft uponthis mode of property. Moft of the offences, which occafoned a refumptionof the fief by the feodal law, and were denominated feloniae, per quas vafallus amitteret feuduml, ftill continue to be caufes of forefeiture in manyof our modern copyholds. As, by fubtraction of fuit and fervicem; fi dominum defervire nolueritn: by difclaiming tohold of the lord, or fwearing himfelf not his copyholdero; fi dominum ejuravit, i. e. negavit fe a domio feudum haberep: by neglect to be admitted tenant within a year and a dayq fi per annum et diem ceffaverit in petenda inveftiturar: by contumacy in not appearing in court after three proclamatonss; fi a domino ter citatus non comparueritt: or by refufing, when fworn of the homage, to prefent the truth according to his oathu; fi pares veritatem noverint, et dicant fe nefcire, cum fciantw. In
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I 2 Inft. 304.
k 2 Ventr. 38. Cro. Eliz. 499.
l Feud. l. 2. t. 26. in cale.
m 3 Leon. 108. Dyer. 211.
n Feud. l. 1. t. 21.
o Co. Copyh.§. 57.
p Feud. l. 2. t. 34. & t. 26. §. 3.
q Plowd. 372.
t Feud. l. 2. t. 24.
s 8 Rep. 99. Co. Copyh. §. 57.
t Feud. l. 2. t. 22.
u Co. Copyh. §. 57.
w Feud. l. 2. t. 58.
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thefe,
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thefe, and a variety of other cafes, which it is impoffible here to enumerate, the forfeiture does not accrue to the lord till after the offences are prefented by the homage, or jury of the lord's court baron x; per laudamentum parium fuorum y: or, as it is more fully expreffed in antoher place z, nemo miles adimatur de poffeffione fui beneficii, nifi convicta culpa, quae fit laudanda a per judicium parium juorum.
VIII. THE eighth and laft method, whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt : which unfortunate perfon may, from the feveral defcriptions given of him in our ftatute law, be thus defined ; a trader, who fecretes himfelf, or does certain other acts, tending to defraud his creditors.
WHO fhall be fuch a trader, or what acts are fufficient to denominate him a bankrupt, with the feveral connected confequences refulting from that unhappy fituation, will be better confidered in afubfequent chapter ; when we fhall endeavour more fully to explain it's nature, as it moft immediately relates to perfonal goods and chattels. I fhall only here obferve the manner in which the property of lands and tenements are transferred, upon the fupproperty of lands and tenements are transferred, upon the fuppofition that the owner of them is clearly and indifputably a bankrupt, and that a commiffion of bankrupt is awarded and iffued againft him.
BY the ftatute 13 Eliz. c. 7. the commiffioners for that purpofe, when a man is declared a bankrupt, fhall have full power to difpofe of all his lands and tenements, which he had in his own right at the time when he became a bankrupt, or which fhall defcend or come to him at any time afterwards, before his debts are fatisfied or agreed for ; and all lands and tenements which were purchafed by him jointly with his wife or children to his own
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x Co. Copyh. §. 58.
y Feud. l. 1. t. 21.
z Ibid. t. 22.
a i. e. arbitranda, definicnda. Du Frefne. IV. 79.
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ufe, (or fuch intereft therein as he may lawfully part with) or purchafed with any other perfon upon fecret truft for his own ufe; and to caufe them to be appraifed to their full value, and to fell the fame by deed indented and inrolled, or divide them proportionably among the creditors. The ftatute expreffly includes not only free, but copyhold, lands : but did not extend to eftatestail, farther than for the bankrupt's life; nor to equities of redemption on a mortgaged eftate, wherein the bankrupt has no legal intereft, but only an equitable reverfion. Whereupon the ftatute 21 Jac. I. c. 19. enacts, that the commiffioners fhall be impowered to fell or convey, by deed indented and inrolled, any lands or tenements of the bankrupt, wherein he fhall be feifed of an eftate-tail in poffeffion, remainder, or reverfion, unlefs the remainder or reverfion thereof fhall be in the crown ; and that fuch fale fhall be good againft all fuch iffues in tail, remaindermen, and reverfioners, whom the bankrupt himfelf might have barred by a common recovery, or other means : and that all equities of redemption upon mortgaged eftates, fhall be at the difpofal of the commiffioners ; for they fhall have power to redeem the fame, as the bankrupt himfelf might have done, and after redemption to fell them. And alfo, by this and a former act b, all fraudulent conveyances to defeat the intent of thefe ftatutes are declared void ; but that no purchafer bona fide, for a good or valuable confideration, fhall be affected by the bankrupt laws, unlefs the commiffion be fued forth within five years after the act of bankruptcy committed.
BY virtue of thefe ftatutes a bankrupt may lofe all his real eftates ; which may at once be transferred by his commiffioners to their affignees, without his participation or confent.
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b
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