Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

But this practice, though highly useful to the sellers, was of considerable detriment, not only to their lords, who thereby frequently lost the fruits of their tenures, but indeed to the whole military policy of the kingdom. It was enacted, therefore, in the eighteenth of Edward the First, by the statute above mentioned, that whenever a man aliened his whole estate, the alienee should not hold from him, and be his tenant, but from the superior lord, and be the lord’s tenant directly; and that by the same services, by which the alienor had holden. The alienor, then, by this statute, ceasing to be lord, and his right of reversion clearly gone, if he reserves a rent on such alienation, he cannot distrain for it, and it is a rent seck.

These rents seck, therefore, were of two kinds, one arising by grant, which was the most antient, the other by reservation, when a man aliened his whole estate. For if the whole estate was not gone, but a reversion remained in him, a rent reserved was still, on account of that reversion, a rent service; as if A. gave lands to B. and the heirs of his body, reserving rent. As this estate tail, although it might continue for ever, yet was capable of determination by the failure of that issue, such rent was distrainable, for that reason, and also because, by the statute which gave force to such estates tail, the reversion was saved to the donor. But if he had made a lease of life or years, or a gift in tail, and had, at the same time, conveyed over the remainder in fee, so that his reversion was gone, a rent reserved on such a grant was seck.

The inconvenience attending these rents seck, in their not being distrainable, introduced another species of rents called rent charges. These are rents seck, armed with a power of distress by the special agreement of the parties; and are of two kinds, as the former are created either by grant, or reservation. Those by grant, which were the only species of rent charges before the statute, were thus; as if I grant out of my lands, keeping them still in myself, a rent for years, life, fee tail, or fee simple, and give my grantee a power to enter and distrain for the rent. It will be by reservation; if I reserve to myself a rent upon a conveyance in fee simple, or upon a gift in tail with a remainder over in fee, or upon a lease for life or years, with a remainder over in fee, and it is covenanted that I shall have a right to enter and distrain for the rent. The power of distress, therefore, in rent charges is good only by the express provision of the parties, not by the force of the general law[153].

Antiently it was a doubt whether a rent charge could be reserved upon a deed poll; to understand which, it will be necessary to explain the difference between a deed poll and an indenture. A deed poll is a grant from one man to another, and is all and every part of it the act and words of the grantor only; and therefore the deed belongs to the grantee, and there is no counterpart in the hands of the grantor; because the grantee binds himself to nothing towards him. Whereas, in an indenture, every clause is the act and words of both. They are mutually bound to each other, and therefore there is a counterpart in the hands of each party. Now if A. by deed poll, granted lands in fee to B. reserving rent, with a clause of distress, it was doubted whether this clause was not void, and the rent a rent seck; because as the lands by A’s grant was in B. it was apprehended they could not be charged with it without an express covenant from him; as in the deed poll he was a party merely passive. But it is now held, and that very equitably, that such a reservation can raise a good rent-charge; for his acceptance of the deed upon the delivery is an act sufficient to shew his assent to take it on the terms therein contained; and nothing can be more reasonable than that whosoever takes a benefit shall take it under such conditions, and no other than such as the donor intended.

Thus have I endeavoured to explain the nature of the three several kinds of rents in our law, of which only rent service is properly feudal; but upon account of the affinity of their nature, I thought proper to join them here. It will be proper now to say something concerning the nature of distress, as it was the remedy for recovering the feudal duties in these kingdoms.

Distresses were not only taken for rents, and other services reserved, but also to oblige persons to appear in courts of justice, or to raise fines, and amerciaments inflicted on them. This likewise arose from the feudal law, as by that the doing suit and service at the lord’s court was one of the duties attendant on fealty.

But there is another kind of distress allowed by our law, arising neither from the feudal contract, nor the express stipulation of the parties, but from the delictum, or negligence of a stranger. It is called a distress for damage feasant, and is a seizure of the cattle, or any other moveable of a stranger, trespassing upon or damaging my ground. The law in this case will not put me to my action against the proprietor, whom perhaps I may never discover; but has provided a festinum remedium for me, by way of distress; and this distress is more privileged than others, for it may be taken in the night-time, which other distresses cannot; because, otherwise, the cattle might escape, and the goods be removed, and so the party injured remain without remedy.

Many and grievous were the extortions and oppressions of the antient English lords in their taking distresses, during the troublesome reign of Henry the Third, for the remedying which many wise regulations were made by the statute of Marlebridge and others. For they not only distrained in a most unreasonable manner for the smallest duties, but distrained where nothing was due; and frequently even out of their fees; and to deprive the parties injured of legal remedy, drove them into another county, or inclosed them in a castle, or would not suffer their bailiffs to permit a replevin[154].

Since I am on this head of distresses, it will be proper to make a few observations, what may be legally distrained, when, and where, and how a distress is to be demeaned, and what remedy the person wrongfully distrained hath to recover his property.