could not be for time paft, that if the mafter faw the preffure of 5. Maintenance given by a will does not veft a legacy as 6. Although fortunes are given to children by the marriage articles of the parents (living the father) with provifions for maintenance, yet maintenance fhall not be raised whilst the father is of ability to maintain the children, yet where the woman's fortune (on a fecond marriage) was fettled to the ufe of herfelf for life, remainder to the children of that marriage, making a provifion for maintenance out of the intereft of the fund, the court ordered an allowance by way of maintenance. 4 Bro. Ch. Ca. 223. Feb. 1793. Mundy v. Earl Howe. 7. A legacy payable in futurio fhall not carry interest before the time of payment, not even if it be given to an infant by a ftranger, but otherwife if it be given to a child by a parent, or in cafe of a refidue, or where an intention to give it clearly appears-ruled upon a bill filed on behalf of an infant to have intereft upon a legacy given to him by his uncle, paid to the father for maintenance. 4 Vef. jun. 1. 1798. Tyrrel v. Tyrrel 1798. (D) Coercion. What Acts done by a Child fhall 13 Vin. 149. I. 1. BILL for a fpecific performance of articles made on the marriage of the defendant Richard Johnson, whereby the 2. A father having five children, three of age, and two infants, of of the agreement, for her cuftomary fhare of her father's eftate, he having in his lifetime taken up his freedom, and the court declared the agreement to be voluntary, and that the plaintiffs were intitled to their customary fhare of the orphanage part of the father's estate. 1 Atk. 399. Feb. 1737. Moores v. Burroughs. 3. Where a father and child of full age came to an agreement to alter the limitations under a fettlement, there is no ground in equity for a child to fet afide fuch agreement, under pretence of being drawn into it by the power and authority of a father, and to restore the ancient limitations. In a cafe in Lord Cooper's time, where a father prevailed upon a fon, who was tenant in tail under a fettlement, to take an eftate for life only, with remainder to his first and every other fon, his lordship would not fet it aside upon the fuggeftion of the father's having an undue influence over him, &c. 2 Atk. 85. Nov. 1740. Tendril v. Smith. 4. A father taking advantage of his fon's neceffities, to which he was reduced by his unkind ufage, prevails upon him, in confideration of a bond for fecuring to the fon annuity of 50%. per ann. to give a release of the fhare he might be intitled to in the orphanage part of his father's eftate, who was a freeman of the city of London: the father alfo prevailed on another of his fons, to give him a release of his fhare of the orphanage part, in confideration of the like annuity, but there were not the fame proofs of his being forced into the releafe, and the father had at times advanced him three or four hundred pounds. Lord Hardwicke took it to be the rule of the custom of London, that if a father would oblige a fon merely for the fake of maintenance, and not for advancement in marriage or trade, to release his right to the orphanage fhare, that fuch release is abfolute void; for a father by the laws of nature is obliged to maintain his children, and fuch an attempt by the father is a fraud upon the custom; therefore, not only the plaintiff, but the other fon, who was a defendant, though he did not appear to have been in equal difficulties with the plaintiff, was relieved. 2 Atk. 238. April 1741. Heron v. Heron. 5. Where a father obtained an abfolute conveyance from a daughter in order to answer one particular purpose, and afterwards makes use of it for another, the court will relieve under the head of fraud. 2 Atk. 254. Feb. 1741. Young v. Peachy. Fee-Farm Rents. (A) Notes in general. LORD Coke in Co. Litt. 143. b. fays, that, if a rent be to the whole of the value of the land, or to the fourth part of the value, then it is called a fee-farm. Mr. Hargrave however, in ib. 144. a. note 5. has fubjoined the following note on this paffage : "The true meaning of fee-farm is, a perpetual farm or rent; "the name being founded on the perpetuity of the rent or service, "not on the quantum. See Mad. Firm. Burg. 3. Here indeed "Lord Coke feems to intimate the contrary, by confining the "domination of fee-farm to rents at leaft equal to the fourth "s part of the value of the land; and the word is explained in a "like manner by Sir Harry Spelman, and the author of the book "of Old Tenures, with this difference only, that the latter re"ftricts the value to a third. See Spelm. Glofs. voce feodi-firma, "and Old Ten. tit. fee-firme. But it would be wrong to under"stand any of these writers, as intending abfolutely and univerfally "to exclude all rents of less value; for the word fee farm most "certainly imports every rent or fervice, whatever the quantum 66 may be, which is reserved on a grant in fee; and fo Lord Coke "himself agrees, in another work, citing Britton and other books "for authorities. 2 Inft. 44. Britt. 164. b. The fometimes "confining the term of fee-farm to rents of a certain value pro"bably arofe, partly from the ftatute of Gloucester, which gives "the cavit only, where the rent amounts to one-fourth of the "value of the land; and partly from its being moft ufual, on "grants in fee-farm, not to receive lefs than a third or fourth or "fuch value. See 6 E. 1. c. 4. F. N. B. 210. c. ant. 142. a. "note 2.-After the ftatute of quia emptores, granting in fee"farm, except by the king, became impracticable; because the "grantor parting with the fee is, by operation of that ftatute, "without any reverfion, and without a reverfion there cannot be a rent fervice, as Littleton himself writes in section 216. "I have seen a modern grant in fee of a large eftate in Ireland, "referving a perpetual rent of great value. But fuch rent, "confidered as a fee-farm rent, I thought clearly void. How"ever, as the cafe I allude to, the conveyance contained a "power for the grantor, and his heirs and affigns, to diftrain for the rent when in arrear, and also a power to enter and receive "the profits till all arrears should be paid, the rent might be Bb 2 Yet goods, "good as a rent charge; and fo, on being confulted, I held "it to be." At the foot of this note Mr. Hargrave adds, that fince the writing of it, Mr. Douglas's reports had been published; and that in one of the cafes, the reporter had given a note which well deferved attention.-In this note Mr. Douglas, after noticing the above flated paffage in Lord Coke's commentary, and correcting an inverfion of language, which involved it in fome obfcurity, proceeds to infer from it, that the defcription of feefarm, taken by itfelf, does not imply a power of diftrefs. But a rent in fee, he fays, of the proportion required, would not cease to be a fee-farm rent, becaufe a power of diftress was fuperadded. A fee-farm, he adds, may be either a rent-feek or a rentcharge; and till the ftatute of qui emptores, might have been a rent-service. But then, in pleading, he obferves, in order to juftify the replevin, it would be neceffary, not only to fhew that the rent was a fee-farm-rent, but alfo to fhew it a rent-charge, or to ftate that a power of diftrefs was annexed to it. Note to Bradbury v. Wright, Dougl. 627. Mr. Hargrave however conIcludes his remarks with obferving, that he fo far differed from this note, as to continue of opinion, that the term of fee-farm was not properly applicable to any rents, except rent-fervice. [D] 33 Vin. 145 Fces. (A) Fees of Sheriffs. 1. Or afcertaining the fees for executing writs of elegit fo far as the fame relate to the extending of real eftates; and for afcertaining the fees for executing writs of haberi facias poffef fionem aut feifinam, be it enacted, that from and after the laft day of Michaelmas term 1717, it fhall not be lawful for any fheriff, under fheriff, deputy fheriff, or their bailiffs, or for the bailiff of any franchife or liberty, or any of them, by reafon or colour of their executing of any writ or writs of haberi facias poffeflionem aut feifinam, to demand, afk, or receive any other or greater confideration for gratuity or reward therein hereafter mentioned (which shall be lawful to be demanded and taken) that is to fay, the fum of 12 d. for every 20 s. of the yearly value of any manors, meffuages, lands, tenements, and hereditaments, whereof poffeffion or feifin fhall be by them or any of them given, where the whole exceedeth not the yearly value of 100/., and the fum of 6 d. for every 20 s. per annum, over and above the faid yearly 6 value Frees. value of 100%. 3 Geo. 1. c. 15. f. 16. See alfo Tyfon v. Parke, 2 Lord Raym. 1212. 2. A prifoner was brought up from Oxford gaol, in order to be turned over to the King's Bench, but the court refused to do it, because the sheriff was not paid the charges of bringing him up, and he was remanded. Anon. 1 Str. 308. See the opinion of Fortefcue, J. Crompton v. Ward. Ib. 433. Poft (B). 3. Sheriff is entitled to four days on extent in aid; and if the money is paid he is entitled to the whole poundage, though a venditioni exponas could not have iffued till after he was out of office. Rex v. Jetherell, Parker 177. 4. But he is not entitled to any cofts and charges. Ibid. 5. On a writ of falfe judgment, if no money is tendered or paid for the return, he may execute a writ de executione judicii, Gale v. Hooker, Barnes 199. (A. 2) Fees by Sheriffs I. BY 15 Geo. 1. c. 15. f. 17. "Poundage fhall in no cafe be "demanded or taken upon executing any writ of capias "ad fatisfaciendum, or upon charging any perfon in execution by "virtue of fuch writ, for any greater fum than the real debt bona ❝ fide, due and claimed by the plaintiff amounteth unto, which fum the plaintiff fhall be and is hereby obliged to mark and "fpecify on the back of fuch writ before the fame be delivered to the fheriff to be executed; and if any fheriff, &c. fhall "take greater fees, he is guilty of extortion; and being con"victed fhall forfeit to the party grieved treble damages and "double the fum extorted to be decreed by the court, out of "of which fuch writ iffued in a fummary way. And every "perfon fo offending fhall forfeit 2007, to be recovered by "bill, plaint, or information." 2. In term 1785, a fpecial cafe was made by Lord Mansfield from the fittings at Guildhall, and the question was, Whether a plaintiff fhould pay to the fheriff, under the above act, poundage for his debt, the prifoner being in gaol, and not having made fatisfaction. It was held that the fheriff was entitled to his poundage, whether the plaintiff received the debt or not, and judgment was given for the plaintiff. Anon. Impey's Office of Sheriff 151. 3. The fheriff had the defendant in execution on a ca. fa. plaintiff delivered him an habeas corpus to remove him to the King's Bench Prifon. He upon this infifted upon being paid his poundage on the execution before he parted with the body. But the court faid, they could not be making bargains with people to obey their procefs, which they would enforce obedience to, and leave the Theriff to his action of debt for the fees, which was his legal remedy. It went off at laft upon the fheriff's fubmitting to Bb 3 carry 373 13 Vin 146. |