Hungerford v. Hanniband , 1 N.C. 37 ( 1793 )

Jones, J.

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 Aff. 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.

Doderidge, J.

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 is 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, Heredibus 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 forts 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 Affife 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 was a rent. 7 H. 6. 13. Br. debt 194. Rep. 66.

Crew. C. J.

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 any one takes it, he shall have trespass. But it is otherwise of a relief due by custom, Postea p. 94 and 129. Jones 132. Bendl. 180. 3 Bulsir. 323. 2 Keb. 677.