Opinion
(1793.)
In this case it is said that relief may be by tenure, and distress is incident thereto. But it may also be by custom, but then without custom, one cannot distrain for it. Therefore, if one pleads relief due by custom and does not allege also that distress is due by custom, it is bad — as in this case. 10 Rep., Godfrey's case allows this.
Reliefs are ancient. Glanvil. Rel., 9. Reliefs are by tenure and by custom. 3 E., 3, 13, per Hern. Reliefs reserved on grants are not properly reliefs, but services. 31 Ass., 12. In Wales there is a custom to pay 10s. for a mortuary and 10s. for alienation by relief and distress, when the land is worth £ 40.
Before the statute quia emptores terrarum, one might reserve a sum of money on each alienation by name of relief, and this is tenure and the relief if distrainable. But usually such matter of relief is by custom. Thus relief may be by tenure or custom. Bracton lib., 2, fol. 83, defines a relief, Haeredibus fact, post mortem antecessoris. For it is said, p. 3, H., 4, Pl., 7; Relief 14, that the successor pays the relief. But in our books both sorts of relief are confused. 18 E., 3, 26. Avowry, 99; Brook relief, 13 or 3. It appears that relief by custom may be distrained. 3 E., 3, 13; Relief, 14; 5 E., 4, 72; 2 Assise, 3; 17 E., 3, *5; Avowry, 124; Bracton tenure, 17; Avowry, 225; Relief. It is not a tenure, but a fruit fallen from the tree, and an executor shall have debt for it, which could not be if it were a rent. 7 H., 6, 13; Br. debt, 194; Rep., 66.
I take this distinction. For a Heriot custom, one cannot distrain, for the lord has the best beast, by the death of the tenant, and if anyone takes it, he shall have trespass. But it is otherwise of a relief due by custom. Postea, pp. 694, 721; Jones, 132; Bendl., 180; 3 Bulstr., 323; 2 Keb., 677.