the respective lords), and he have twenty horses, and make a fraudulent gift of those twenty horses to another person, it is said that each of the lords may have a separate action, qui tam, on the statute of Elizabeth; but shall recover only the value of one beast; or, as Dyer expresses it, he shall "recover according to his grievance" (a). But the statute expressly says, that the offender shall forfeit the value of the whole of the chattels so fraudulently conveyed; half to the crown and half to the party or parties grieved. Now, if the action brought be a qui tam action, the whole penalty inflicted by the statute must surely [171] be recovered, or none at all. If one lord only bring his qui tam, and recover the value only of one horse, is the crown to be content with the half of the value of that one horse till another lord shall chuse to bring another action? Is the person who fraudulently conveys to be harrassed with twenty qui tams? This would be a punishment with a witness. But the forfeiture would be no punishment at all to the offender in such case; but to the lord, who (a) Dyer 351. b. Creswell v. Cokes. 2 Leon. 8. S. C. has been already sufficiently aggrieved: since the lord had a right to the whole horse, and the tenant no right to the horse at all; and, consequently, if the moiety of that horse was to be forfeited to the crown, it would be a confiscation of the property of the party injured rather than of the party offending. It should seem, therefore, that a distinction should be observed with respect to an action qui tam, and an action merely for the recovery of a particular heriot: thus, if the tenant make a fraudulent gift of his twenty horses, the lord may bring a qui tam against the [172] alienor, (for he it is that is the aggressor,) and shall recover the moiety of the value of the twenty horses, according to the express provision of the act: but if each lord choose to bring his action of trover, detinue, or on the case, against the person, in whose possession the horses are, (for the statute declares the gift to be void, as against the party aggrieved; and, by consequence, the property will be in the lord, as before noticed) (b); each lord shall recover the value of the horse he claims, or "according to his grievance." (b) Ante, p. [162]. CHAP. VII. OF SUIT. THE obligation on the copyholder to do [173] suit to the customary court of the manor has been already noticed (a). We will now, therefore, proceed to inquire who may be such a copyholder as is compellable to do suit?-the manner of performing it?-and the powers and remedies which the law has given to the lord to compel such performance, or to punish the default? And, in the first place, we must remark, that every person who holds by copy, how ever small the interest he claims, must hold of the lord (b). If a copyholder seized in fee, surrender to the use of A. B. for life, Who shall do customary suit in the court, and who not. A person holding a terest by (a) Ante, ch. 1. Of Courts. (b) See ante, ch. 3. Of Freebench; and ch. 6. Of Heriots. [174] A. B. shall not hold of the surrenderor, as he should have done of his grantor had the estate been of freehold land, but he shall hold immediately of the lord: and, consequently, as he becomes tenant to the lord, he shall do suit at his lord's court: and so of a copyholder for years (c). But not the lessee of a But if a person holding by copy, lease his copyholder. copyhold at will, or for a year without license, or for a longer term, if the custom of the manor permit, or, if not, by license, the lessee shall not do suit; for he takes a common law, and not a copyhold, interest (d): and, consequently, not being a customary tenant, he can owe no suit to the customary court. Women. Husband. A woman copyholder shall do suit if she be sole (e), or a widow (f); but if she be [175] under coverture, her husband shall perform (c) See ante, vol. 1. p. [242-3]. (e) Ante, vol. 1. p. [275]. N. (m). (f) Ante, vol. 1. p. [274]. and vol. 2. p. [69], &c. it for her (g). So the widow shall do suit for her freebench (h), and the husband for Curtesy. his curtesy (i). But it should seem that an infant shall Infant. not do suit: for he cannot do it in person; nor does it appear that he can perform it by his guardian (k). Yet quære whether he is not compellable to do it in person so soon as he is out of ward by the custom of the manor, though he should not be one-andtwenty years of age; as an infant is certainly of years of discretion at fourteen, and permitted in the common law courts to be sworn, on many occasions, at that age, and, consequently, indictable for perjury; and it should, therefore, seem that he may forfeit his copyhold before twenty-one for default of suit for this differs from default of [176] (g) Ante, vol. 1. p. [274]. And in ancient rolls the husband is frequently mentioned as sitting on the homage in right of his wife. Homagiu:-Ric: Wood-in Jure Uxor: (h) Ante, ch. 3. Of Freebench, p. [69]. (i) Ante, p. [69]. [71-2]. (k) Ante, ch. 4. Of Guardian, p. [106]. * Antè, vol. 1. p. [337-8]. Jur." |