No. 7. o Edward I. c. 5. Dyer 25. Fitz. Wast, 62, Co. Inst. 53. b. 54. b. 200. b. 355. b. 1 Roll. 91, 97, Rast. 689, &c. 9 H. 3, stat. 1. C. 23. Regist. 72. 2 Inst. 299. 6 Edward I. c. 5.-Several Tenants against whom an Action of Waste is maintainable. NSEMENT purveu est qe T is provided also, That a Elem eit deforemes bref de IT C Man from henceforth shall ་ have a Writ of Waste in the Chancery against him that holdeth by Law of England, or other'wise for Term of Life, or for Term of Years, or a Woman in Dower. (2) And he which shall be attainted of Waste, shall leese the Thing that he hath wasted, and moreover shall recompense thrice so much as the 'Waste shall be taxed at. (3) And for Waste made in the Time of Wardship it shall be done as is contained in the Great Charter, (4) And where it is contained in the Great Charter, that he which did waste during the Costody, .shall leese the Wardship, (5) it is agreed that he shall recompense the Heir his Damages for the Waste, if so be that the Wardship lost do not amount to the Value of the Damages before the Age of the Heir of the same • Wardship.' Wast en la Chauncelrie fait de ceo sur home qi tient par la lei de Engleterre ou en autre manere a terme de vie ou a terme de annz ou femme en doweire. e celui qui serra atient de wast perde la chose qil ad wastee e estre ceo face gre del trebble de ceo qe le wast serra taxe. E endreit de wast fet en garde seit fait solom ceo qe il est contenu en le graunt chartre. E par la ou il est contenue en la graunt chartre qe celui qi avera fet wast en garde perde la garde Acorde est qe il rende il heir les damages del wast si issi ne seit qe la garde perdue ne suffice my a la value des damages avaunt le age del heir de mesme la garde. (*) (*) The real Action of Waste has so entirely fallen into Disuse, that the Case of the Keepers, &c. of Harrow School v. Anderton, 2 B. and P. 86. is probably the only Instance of it remembered by Lawyers now living.The Action on the Case, in the Nature of an Action of Waste is now commonly substituted for the ancient Remedy, 'and will lie between Persons between whom the proper Action of Waste is not maintainable, but in Gibson v. Wells, 1 N. R. 290. it was ruled that this Action does not lie in the Case of permissive Waste, which Authority, if admitted to be Law, may render it still necessary to resort to the former Proceeding. A more effectual Remedy against voluntary Waste, is in many Cases attainable by Injunctions in Equity. In the above mentioned Case of Harrow School v. Anderton, the Court of Common Pleas, upon the Authorities there cited, gave Judgment for the Defendant, on Account of the Damages recovered by the Plaintiff. No. 8. 13 Edward I. c. 1.-In Gifts in Tail the Donor's Will shall be observed. The Form of a Formedon. primis de tenementis que tione videlicit cum aliquis dat terram suam alicui viro & ejus uxori & heredibus de ipsis viro et muhere procreatis adjecta conditione expressa tali quod si hujusmodi vir & mulier sine herede de ipsis viro & muliere procreato obissent terra sic data ad donatorem vel ad jas heredem revertatur. In casu siam cum cuis dat tenementum in liberum maritagium quod donum habet conditionem annexam licet non exprimatur in carta doni FRT are given IRST, Concerning Lands 13 Edward I. c. 1. No. 5. Several Sorts of Gifts of Lands in 'upon Condition, that is to wit, que talis est quod si vir & muliera Condition annexed, though it Fitz. Tail, 11, sine herede de ipsis procreato obierint tenementum sic datum ad donatorem vel ad ejus heredem revertatur. In casu etiam cum quis dat tenementum alicui & heredibus de corpore suo exeuntibus durum videbatur & adhuc videtur hujusmodi donatoribus & here dibus donatorum quod voluntas ipsorum in donis suis expressa non fuerit prius nec adhuc est ob b. 19. a. 24. a. 223. b. 224. a. 12 Co. 81. be not expressed in the Deed of 12, 13, 14, 16, 'Gift, which is this, That if the 17, 18, 21, 22, Husband and Wife die without 23. Co. Lit. 18. Heir of their Bodies begotton, the Land so given shall revert to the Giver or his Heir. (3) In Fitz. Formed. Case also where one giveth Land 61, 65. to another, and the Heirs of his Fitz.Tail, 9, 10. Body issuing; it seemed very hard, and yet seemeth to the Givers and their Heirs, that their observed. (4) in all the Cases servata. In omnibus enim pre-Will being expressed in the Gift, the Deed, though the Issue (if Fitz. Tail, 15. their Reversion, which was 13 Edward I. c. 1. directly_repugnant to the Form • Add, of the of the Gift. same Tenements. In Gifts in Tail the Donor's Will shall be observed. Hob. 293. Fitz. Garranty, 16, 46, 57, 59. 3 Co. 85. Fitz. Formed. 1, 27, 33, 35, 52, 54, 59, 62, 64. For whereas read in that. II. Wherefore our Lord the King, perceiving how necessary and expedient it should be to provide Remedy in the aforesaid Cases, hath ordained, That the Will of the Giver, according to the Form in the Deed of Gift 'manifestly expressed, shall be 'from henceforth observed; so that they to whom the Land was given under such Condition, 'shall have no Power to aliene the Land so given, but that it 'shall remain unto the Issue of them to whom it was given after their Death, or shall revert unto the Giver, or his Heirs, if Issue 'fail († whereas there is no Issue Fitz. Dower, 87. at all) or if any Issue be, and fail by Death, or Heir of the Body of such Issue failing. (2) Neither shall the second Husband of any such Woman, from henceforth, have any Thing in the Land so given upon Con'dition, after the Death of his Wife, by the Law of England, nor the Issue of the second Husband and Wife shall succeed in 'the Inheritance, but immediately after the Death of the Husband and Wife (to whom the Land was so given) it shall come to their Issue, or return unto the Giver, or his Heir, as before is ⚫ said. 3 Co. 8. 5. 14. 7. 32, 33. 8. 35, 86. 166. 9.105. 11. 72. Co. Lit. 327. b. Formedon in discender. III. And forasmuch as in a new Case new Remedy must be provided, this Manner of Writ 'shall be granted to the l'arty that ' will purchase it :' (2) Præcipe A. quod juste, &c. reddat E. manerium de F. com Regist. 238. suis pertinentiis, quod C. dedit Co. pla. 317, tali viro & tali mulieri, & heredibus de ipsis viro & muliere exeun 338, 341. Dyer 216, 247. tibus. 'Or thus :' (3) Quod C. dedit tali viro in 5, 6, 7, 11, 12, liberum maritagium cum tali mu22, 30, 42, 44, liere, & quod post mortem præ46, 47, 49. dictorum viri & mulieris, predicto B. filio eorundem viri & mulieris descendere debeat per forman donationis prædictæ, ut dicit, &c. (4) Vel, Quod C. dedit tali et que de reversione eorundem tenementorum quod manifeste fuit contra formam doni sui. Propter quod dominus Rex perpendens quod necessarium & utile est in predictis casibus apponere remedium statuit quod voluntas donatoris secundum formam in carta doni sui manifeste expressam decetero observetur ita quod non habeant illi quibus tenementum sic fui: datum sub conditione potestatem alienandi tenementum sic datum quo minus ad exitum illorum quibus tenementum sie fuerit datum remaneat post earum obitum vel ad donatorem vel ad ejus heredem si exitus deficiat per hoc quod nullus sit exitus omnino vel si aliquis exitus fuerit per mortem deficiet herede hujosmodi exitus deficiente. Nec habeat decetero secundus vir hujusmodi mulieris aliquid in tenemento sie dato per conditionem post mortem uxoris ejus per Legem Anglie nec exitus de secundo viro & muliere successionem hereditariam set statim post mortem viri & mulieris quibus teuementum sie fuit datum post eorum obitum vel ad eorum exitum vel ad donatorem vel ad ejus heredem ut predictum rever de corpore suo exeuntibus et quod post mortem ipsius talis predicto B. filio predicto talis descendere debet per formam, etc. No. 3. hæredibus de corpore suo exeunti- IV. The Writ whereby the 'Giver shall recover (when Issue • faileth) is common enough in the Chancery; (2) and it is to wit, that this Statute shall hold Place touching Alienation of Land contrary to the Form of the Gift hereafter to be made, and shall not extend to Gifts made before. (3) And if a Fine be levied hereafter upon such Lands, it shall be void in the Breve per quod donator habet recuperare suum deficiente exitu satis est in usu in cancellaria Et sciendum quod hoc statutum quoad alienationem tenementi contra formam doni imposterum faciendam locum habei & ad dona prius facta non extenditur. Et si anis super hujusmodi tenemento imposterum levetur ipso jure sit nullus nec habeant heredes aut lli ad quos spectat reversio licet plene sint etatis in Anglia & extra prisonain necesse apponere cla-Law; (4) neither shall the Heirs, bar the Heir 12 meum suum. A Fine shall not or such as the Reversion be- Tail." longeth unto, though they be 8 H. 4. f. 8. of full Age, within England, Fitz. Continual and out of Prison, need to make ⚫ their Claim. Altered by 32 H. 8. 'c. 36.' Claim, 9. No. 9. 18 Edward I. c. 1.-The Feoffee shall hold his Land of the chief Lord, and not of the Feoffer. (1) (1) For the general Exposition of this important Act, see 2 Institutes 500. The two following modern Cases have been decided upon the Effect of it. Bradshaw v. Lawson, 4 T. R. 443. Lands held of the Lord of the Manor by customary Tenure were enfeoffed by the Lord to the Tenant in Fee-farm, subject to a yearly Rent, in Lieu of all Manner of other Rents, Suits, Services, Exactions and Demands. By a subsequent Deed it was recited, that as a Consideration for the former it was agreed that the Feoffee and all others who should hold his Estate, should do Suit and Service, and appear at Courts Baron, and be subject to Fines and Amerciaments assessed by the Homage; and the Party to the Deed (the Heir of the original Feoffee) covenanted in Default of performing Suit and Service to pay 2s. 6d. And it was decided that an Action of Debt for the Amerciament of 2s. 6d. for not attending the Court could not be maintained. Lord Kenyon said, The Lord conveyed the Property of which the Defendant is now seised to the Defendant's Ancestor a customary Tenant. But it has been said that the old Services were reserved by the Reservation of the Fee-farm Rent; but if the Relation of Lord and Tenant absolutely ceased to exist, that Rent can no longer be considered as Reat Service, but a Rent to be recovered according to the Contract between the Parties. After the Statute of Quia emptores, the Lord could not by any Deed reserve the old Services when he conveyed away the Estate in Respect of which the Services were due, for the Tenant must hold of the superior No. 9. "such great Men have sold their 18 Edward I. c. 1. "Lands and Tenements to be "holden in Fee of their Feoffers, "and not of the chief Lords of "the Fees, whereby the same "chief Lords have many Times "lost their Escheats, Marriages, "and Wardships of Lands and "Tenements belonging to their "Fees; which Thing seemed very "hard and extream unto those "Lords and other great Men, and "moreover in this Case manifest "Disheritance:" (2) Our Lord the King, in his Parliament at Westminster, after Easter, the eighteenth Year of his Reign, that is to wit, in the Quinzime of Saint John Baptist, at the Instance of the great Men of the Realm, granted, provided, and ordained, That from henceforth it shall be lawful to every Freeman to sell at his own Pleasure his Lands and Tenements, or Part of them, so that the Feoffee shall hold the same Lands or Tenements of the chief Lord of Fitz Avowry, 108, 185, 255. 12 Car. II. c. . the same Fee, by such Service terras & tenementa sua vendiderunt temenda in feodo sibi & heredibus suis de feoffatoribus suis & non de Capitalibus dominis féadorum per quod iidem Capitales domini escaetas maritagia & custodias terrarum & tenementorum de feodis suis existentium sepius amiserunt quod eisdem Magnatibus & aliis dominis quam plu rimis durum & difficile videbatur & similiter in hoc casu exheredatio manifesta: Dominus Rex in parliamento suo apud Westm' post Pascha Anno Regni sui decimo octavo videlicet in quindena sancti Johannis Baptiste ad instantiam Magnatum regni sui concessit providit & statuit quod de cetero liceat unicuique libero homini terram suam seu tenemencum seu partem inde pro voluntate sua vendere. Ita tamen quod feoffatus teneat terram illam seu tenementum de Capitali domino per eadem servicia & consuetudines per que feoffator suus illa prius tenuit, Lord. By the Conveyance the Estate was no longer Parcel of the Manor, nor held of the Manor, neither was the Defendant's Ancestor any longer a Tenant of the Manor. Doe on the Demise of Reay v. Huntingdon, 4 East, 271. a customary or Tenant-Right Estate in Cumberland, not Devisable either directly or by Means of a Will, and Surrender being holden of the Lord of the Manor subject to customary Rents and other Services; the Lord, for certain Considerations, did Ratify and Confirm to the Tenant all his said customary Estate, and did grant that the Tenant should be discharged from all Rents, Fines, Heriots, Customs, Services and Demands, in Respect of his Tenancy, except one Penny yearly Rent, and excepting and reserving Suit of Court with the Service incident thereto, the Lord reserving all Royalties, Escheats and Forfeitures, and all other Advantages and Emoluments belonging to the Seignory so far as might consist with and not be prejudicial to the aforesaid Immunities, with Liberty to the Grantee of cutting Timber and getting Stones, and alienating without Consent. It was contended in a most learned Argument, that the only Effect of the Deed was by Means of Covenants to compound for the Payment of certain Parts of the Reuts, and for the Performance of certain burthensome Services; but excepting to the Lord the Remainder according to the ancient Tenure, and secondly, that if this were no longer the old customary Estate as between Lord and Tenant, yet the collateral Customs as to Strangers might still remain; but it was decided that by the Operation of the Deed the immediate Customs by which the Tenement was distinguished from other Lands holden in free and common Socage had been extinguished, and the Land became devisable as any other Socage Land under the Statute of Wills. The Case contains a great Deal of important Learning respecting the Extinction of Tenure by the Release of Services, and affords one of the best Views which can be any where had of the customary Estates peculiar to the North of England, for which Border Services were anciently performed. See also Townley v. Gibson, 2 T. R. 424. Doe v. Davidson, 2 M. & S. 175. 2 |