by subtraction of suit and service (m); si dominum deservire noluerit (n) : 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 (q); si per annum et diem cessaverit in petenda investitura (r): by contumacy in not appearing in court after three proclamations (s); si a domino ter citatus non

comparuerit (t) or by refusing, when sworn of the homage, to [*285] present the truth according to his oath (u): * si pares veritatem noverint, et dicant se nescire, cum sciant (w). 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 (x): per laudamentum parium suorum (y); or, as it is more fully expressed in another place (z), nemo miles adimatur de possessione sui beneficii, nisi convicta culpa, quae sit 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 statute 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 situation, will be better considered in a subsequent chapter (24); when we shall endeavour more fully to explain its 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 is transferred, upon the supposition that the owner of them is clearly and indisputably a bankrupt, and that a commission of bankrupt is awarded and issued against him.

By 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 [*286] children to his own use (or such interest therein as he may law

fully part with), or purchased with any other person 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 customary and 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 empowered to sell or convey, by deed indented

(m) 3 Leon. 108. Dyer, 211.

(n) Feud. l. 1, t. 21.

(0) Co. Copyh. ◊ 57.

(p) Feud. 1. 2, t. 34, & t. 26, ◊ 3.

(q) Plowd. 372.

(r) Feud. 1. 2, t. 24.

(s) 8 Rep. 99. Co. Copyh. 57. (t) Feud. 1. 2, t. 22.

(u) Co. Copyh. ◊ 57.
(w) Feud. 1. 2, t. 28.
(z) Co. Copyh. ◊ 58.
(y) Feud. 1. 2, t. 21.
(z) Ibid. t. 22.

(a) i. e. arbritanda, definienda. Du Fresne, IV.

(34) See chapter 31.

and inrolled, any lands or tenements of the bankrupt, wherein he shall be seised of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown; and that such sale 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 commissioners; 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 (b), all fraudulent conveyances to defeat the intent of these statutes are declared void; but that no purchasor bona fide, for a good or valuable consideration, 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 commissioners to their assignees, without his participation or consent (25).

(b) 1 Jac. I. c. 15.

CHAPTER XIX.

V. OF TITLE BY ALIENATION (1).

THE most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in its limited sense; under which may be comprised any method wherein estates are voluntarily resigned by one man, and accepted by another; whether that be effected by sale, 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 law (a), a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest thereby a feeble or suspicious tenant might have been substi

(a) See page 37.

tuted and imposed upon him to perform the feodal services, 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 alienation would have been easily frustrated and evaded (b). And, as he could not aliene it in his lifetime, so 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 consent of his own next apparent, or presumptive heir (c). And therefore it was very usual in ancient feoffments to express that the alienation was [*288] made by consent of the heirs of the feoffor: or sometimes for the heir apparent himself to join with the feoffor in the grant (d). And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his vassal for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent, from a hostile seising of his cattle by the lord of a neighbouring clan (e). This consent of the vassal was expressed by what was called attorning (ƒ), or professing to become the tenant of the new lord: which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchasor, and to become his tenant, the grant or contract was in most cases void, or at least incomplete (g) which was also an additional clog upon alienations.

But by degrees this feodal severity is worn off; and experience hath shewn, that property best answers the purposes of civil life, especially in commercial countries, when its transfer and circulation are totally free and unrestrained. The road was cleared in the first place by a law of king Henry the First, which allowed a man to sell and dispose of lands which he himself had purchased; for over these he was thought to have a more extensive power than over what had been transmitted to him in a course of descent from his ancestors (h): *a doctrine which is coun- [*289] tenanced by the feodal constitutions themselves (i): but he was not allowed to sell the whole of his own acquirements, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate (k). Afterwards a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but, if his assigns were not specified in the purchase deed, he was not empowered to aliene (1): and also he might part with onefourth of the inheritance of his ancestors without the consent of his heir (m).

(by Feud. l. 1, t. 27.

(c) Co. Litt. 94. Wright, 168.

(d) Madox, Formul. Angl. N° 316. 319. 427. (e) Gilb. Ten. 75.

(f) The same doctrine and the same denomination prevailed in Bretagne-possessiones in jurisdictionalibus non aliter apprehendi posse, quam per attournances et avirances, ut loqui solent; cum vasallus, ejurato prioris domini obsequio et fide, novo se sacramento novo item domino acquirenti obstringebat, idque jussu auctoris. D'Argentre Antiq. Consuet. Brit. apud Dufresne, i. 819, 820.

(g) Litt. 551.

By the great charter of Henry III. (n), no subinfeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to be one half or moiety of the land (o). But these restrictions were in general removed, by the statute of quia emptores (p), whereby all persons, except the king's tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion (q). And even these tenants in capite were by the statute 1 Edw. III. c. 12, permitted to aliene, on paying a fine to the king (r). By the temporary statutes 7 Hen. VII. c. 3. and 3 Hen. VIII. c. 4. all persons attending the king in his wars were allowed to aliene their lands without licence, and were relieved from other feodal burdens. And, lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II. c. 24. As to the power of charging lands with the debts of the owner, this was introduced so early as stat. Westm. 2. which (s) subjected a moiety of the tenant's lands to executions, for debts recovered by law: as the whole of them was likewise subjected to be pawned in a statute merchant by the statute de mercatori

bus, made the same year, and in a statute staple by statute 27 [*290] Edw. III. c. 9. and in other similar recognizances by statute *23 Hen. VIII. c. 6. And now, the whole of them is not only subject to be pawned for the debts of the owner, but likewise to be absolutely sold for the benefit of trade and commerce by the several statutes of bankruptcy. The restraint of devising lands by will, except in some places by particular custom, lasted longer; that not being totally removed, till the abolition of the military tenure (2). The doctrine of attornments continued still later than any of the rest, and became extremely troublesome, though many methods were invented to evade them; till at last they were made no longer necessary to complete the grant or conveyance, by statute 4 & 5 Ann. c. 16; nor shall, by statute 11 Geo. II. c. 19. the attornment of any tenant affect the possession of any lands, unless made with consent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of justice (3), (4).

(n) 9 Hen. III. c. 32.

(0) Dalrymple of feuds, 95. (p) 18 Edw. I. c. 1.

(2) The general power of devising was given by 32 Hen. VIII. c. 1. See post 375.

(3) An attornment at the common law was an agreement of the tenant to the grant of the signiory or of a rent, or of the donee in tail, or tenant for life or years, to a grant of reversion, or remainder made to another. Co. Litt. 309. a. And the attornment was necessary to the perfection of the grant. However, the necessity of attornments was in some measure avoided by the statute of uses, as by that statute the possession was immediately executed to the use, 1 Term R. 384. 386. and by the statute of wills, by which the legal estate is immediately vested in the devisee. Yet attornment continued after this to be necessary in many cases: but both the necessity and efficacy of attornments have been almost to tally taken away by the statute 4 & 5 Anne, c. 16. s. 9, 10. and 11 Geo. II. c. 19. s. 11. The first statute having made attornment unnecessary; and the other having made it inoperative; it is now held not to be necessary, either to aver it in a declaration in covenant, or plead

(g) See pag. 72. 91.
(r) 2 Inst. 67.

(s) 13 Ed. I. c. 18.

it in an avowry or other pleading whatever. Doug. 283. Moss v. Gallimore. See Mr. Serjt. Williams's note, 1 Saund. 234. b. n. 4. Under the proviso in the first act, any notice to the tenant, of his original landlord having parted with his interest, is sufficient; and therefore the tenant's knowledge of the title of cestui que trust as purchaser has been held sufficient notice to entitle his trustees to maintain an action of assumpsit for use and occupation as grantees of the reversion against the tenant, who had improperly paid over his rent to a vendor after such knowledge. 16 East, 99. Although the first mentioned act renders an attornment unnecessary, yet it is still useful for a purchasor to obtain it, because after an attornment he would not in any action against the tenant, be compelled to adduce full evidence of his title, Peake's Law of Evid. 266, 7. though the tenant would still be at liberty to shew that he had attorned by mistake. 6 Taunt. 202.

(4) 1 R. S. 739, § 146.