FOREST. Vide CHASE, per totum. FORE-STALLING. Vide JUSTICES of PEACE, (B 38.) FORFEITURE. (a) (A) Forfeiture, by alienation, &c. (A 1.) By alienation of a particular tenant:- What shall be: In pais. p. 383. (A 2.) By alienation by matter of record. p. 384. A 5.) Or by an affirmance of the fee in a stranger. (A 6.) Entry for the forfeiture: - By whom it shall be. p. 389. (A 7.) By whom, not. p. 390. A 8.) At what time it shall be. p. 390. (A 9.) Who are bound by the forfeiture. p. 390. - (A 12.) What not. p. 391. (A 13.) What does not purge the forfeiture. p. 391. (B) Forfeiture for a crime. (B 1.) For high treason: What lands and tenements. p. 391. (B 2.) What goods and chattels. p. 397. (B 3.) For petit treason, or felony. p. 399. (B 4.) When the forfeiture shall be seised. p. 402. (C) Forfeiture by penal statutes. p. 406. (a) Forfeiture is a word often made use of in the law, and in civil cases is usually applied to alienations and dispositions made by those who have but a particular estate or interest in lands or tenements, to the prejudice of those in remainder or reversion. The omission or neglect likewise of a duty which the party binds himself to perform, or to the performance of which he is enjoined by the law, is upon the breach or neglect thereof called a forfeiture, that is, the advantages accruing from the performance of the thing are by his omission defeated and determined. Co. Litt. 59. a. 3 Bac. Abr, 729. (A) For= (A) Forfeiture, by alienation, &c. (A 1.) By alienation of a particular tenant :- What shall be: In pais. If tenant (b) for life or years conveys a greater estate (c) than he can lawfully do, whereby the reversion, or remainder, is divested, it will be a forfeiture of his estate: as, if he makes a feoffment. Co. L. 251. (d) Vide Copyhold, (M 2, &c.) If he conveys to another in tail, or for his own life, and livery be made. Co. L. 252. a. 1 Rol. 854. l. 7. Or, to another for his life, if he himself so long lives: for the other has an estate for his life, though determinable upon the death of the first lessee. 1 Rol. 854. l. 43. Lane, 38. If tenant pur auter vie, by statute-merchant, staple, or elegit, makes. a feoffment, &c. it will be a forfeiture. Co. L. 252. a. So, if tenant after possibility, by curtesy, (e) or in dower, &c. makes a feoffment, &c. Co. L. 252. a. 1 Rol. 851. 1. 35. So, if tenant for life or for years, and the remainder man for life, join in a feoffment, &c. it will be a forfeiture of both estates. Co. L. 251. b. R. 1 Leo. 262. 1 Rol. 855. l. 15. 2 And. 66. Dy. 339. a. R. 1 And. 45, 46. So, if he in remainder for life enters upon tenant for life, or years, (b) 1. By the antient feudal law no man could alien without licence from the lord of the fee; but any alienation or disposition was then a forfeiture; but in England, where the allodial property prevailed in the Saxon times, they were allowed to alien in some cases, viz. 1o. In remunerationem serviti, that is, for services done to the feud, as for services done in the wars by the feudal tenant, or in peace, by ploughing the feud at home; both these being either for the profit or honour of the feudal lord, they formerly valuing themselves upon the honour and number of their tenants. 2o. In frank marriage with the daughter of the feudatory, or some other of his blood, because this multiplied tenants to the lord. 3o. In frankalmoigne or free alms, the superstition of the times allowing it for the good of the soul. Digest Feud. lib. 2. tit. 26. fol 523. Vigellius lib. 5. cause 32. f. 287. Glanvil. lib. 7. c. 1. 44. Staunf. Prærog. 27. 28. 2. Which privilege was not only confirmed, but also enlarged and made general by magna charta; so that by that act the feudatory might alien to whom he pleased, provided he left sufficient to answer the lord's services, which seems to have been a privilege mightily contended for. Ibid. 3 Bac. Abr. 193.-3. But notwithstanding this law, if tenant for life aliens in fee, this is still a forfeiture, for that statute only permits a lawful disposition, but does not allow any alienation to the prejudice of him in reversion, and therefore where tenant for life takes upon him to transfer the fee-simple, it is a renunciation of the feud and contrary to his oath of fidelity. So if te nant for life aliens to another for the life of the alienee, this is a forfeiture, for it can be no lawful alienation within magna charta, because it is probably to the prejudice of him in the reversion. 2 Inst. 65. Rol. Abr. 854. Co. Litt. 251. (c) 1. Though upon condition. 2. Hence if lessee for life of lands aliens in fee upon condition, and enters for the condition broken, still the lessor may enter for the forfeiture. Ro. Abr. 856. Co. Litt. 252. Palm. 202. 3. So if tenant for life aliens upon condition, that if he himself pays 107. that he shall re-enter, and that if he fails in payment, that then the alienee shall have the fee simple; though he pays the money, yet the reversioner may enter for the forfeiture, because the fee was transferred imme diately upon the alienation, which was a renunciation of the feud, and consequently a forfeiture. Ro. Abr. 856. (d) For these estates are still considered in some respects as strict feuds. Gilb. Ten. 38. Wright's Ten. 203. (e) 1. If a tenant by the curtesy aliens in fee, or in tail, or for the life of the grantee, it is a forfeiture of his estate; and the person in reversion may, by the st. of Westminster, 2. c. 24. have a writ of entry in consimili casu: 2 Inst. 309.-2. But a husband does not forfeit his right to an estate by the curtesy by leaving his wife, and living in adultery with another woman. 5 P. Wms. 276. and and makes a feoffinent, it will be a forfeiture of his remainder. Co. L. 251. b. So, if there be joint-tenants for life, and one of them aliens in fee, it will be a forfeiture of his estate. So, if husband and wife are joint-tenants, and the husband alone aliens in fee, it will be a forfeiture for the life of the husband. 29 Ass. 43. So, if husband and wife, seised in right of the wife for life, make a feoffment to B. to the use of him and his heirs for the life of the wife tantum: for by the feoffment a fee passed, though the use be declared only for the life of the wife. R. 1 Leo. 126. (f) So, if tenant for life, or years, remainder or reversion to the king, makes a feoffment, &c. it will be a forfeiture; though the remainder, or reversion in the king is not divested. Co. L. 251. b. So, if tenant for life, remainder to B. in tail, remainder to himself in fee, makes a feoffiment, it will be a forfeiture. 1 Rol. 851. 1. 30. 854. 1. 52. So, if husband and wife, joint-tenants for life, or seised in right of the wife, make a feoffment, or the husband alone makes it, it will be a forfeiture during the coverture. (g) Vide Baron and Feme, (I 1.) So, if tenant for life, remainder in tail, remainder in fee, enfeoffs him in remainder in fee, it will be a forfeiture in respect of the mesne remainder. R. 1 Co. 140. a. So, if he joins with him in the immediate remainder in tail, in a feoffment, and not by fine. 1 Sid. 83. So, if tenant for life enfeoffs a woman in the immediate remainder and her husband, it will be a forfeiture. Bro. Forf. 21. 1 Rol. 855. l. 10. Or, him in the immediate remainder and his wife: for the whole estate passes from the tenant for life, and therefore it is not warranted, though he in reversion cannot enter during the estate of the husband. Cont. 41 Ed. 3. 21. a. Acc. Bro. Entry cong. 8. 82. 1 Co. 76. b. (A 2.) By alienation by matter of record. So, if tenant for life (h), or for years, levies a fine (i), it will be a forfeiture. Co. L. 251. b. (k) So, (f) 1. Cro. Eliz. 131.-2. For there being a fee simple conveyed to J. S. by the deed and livery, the words of restraint for the life of the wife refer only to the limitation of the use, so that the fee simple remains still in the feoffee; but this, it seems, is a forfeiture only during the coverture. 3 Bac. Abr. 194. (g) Ro. Abr. 851. 8 Rep. 44. (h) 1. If A. be tenant for life, with remainder to B. for life, and A. levies a fine to B.; this is a forfeiture of both their estates. 2 Lev. 202. Co .Read. 3.-2. And where A. was tenant for life, remainder for life to B., remainder in tail to C., remainder to B. in fee, and B. levied a fine sur cognizance de droit, &c. to a stranger, it was adjudged to be a forfeiture of his estate in remainder for life. 1 Rol. Abr. 855.-3. But where the person who has the next estate of inheritance, joins with the tenant for life in levying a fine, it does not then operate as a forfeiture. 1 Rep. 76. 1 Vent. 160. (i) 1. Sur cognizance de droit come ceo. 1 Inst. 251. b. Gilb. Ten. 38. 2. So, if tenant for life accepts a fine sur cognizance de droit. 9 Rep. 106. b.-3. But a fine sur concessit, levied by a tenant for life, does not operate as a forfeiture of his estate, because it only transfers such an interest as the tenant for life may lawfully pass, without divesting or displacing the estates in remainder or reversion. 2 Mod. 109. (k) 1. Where a fine is levied by a tenant for life, it operates so as to divest and displace the estates in remainder, and also the reversion. 1 Inst. 251. b. 327. b. Hard. 401, 402. - 2. But if a tenant for life accepts a fine from a stranger, it does not So, by the st. 32 H. 8. 31. () if he suffers a common_recovery. Though he comes in as vouchee. R. 1 Co. 14. 2 Leo. 61. Though the recovery, or fine, be afterwards reversed by error. 1 Sid. 90. R. Though he was disseised before the fine levied, whereby to some intents, partes finis nihil habuerunt. Co. L. 252. a. Dub. 4 Leo. 217. R. Mo. 424. Cro. El. 451. Cont. 1 And. 38. So, if tenant for life, remainder for life, levies a fine to him in remainder for life, sur conuzance come ceo, &c. it will be a forfeiture. R. 2 Lev. 202. 2 Jon. 65. R. 2 And. 66. So, if tenant for life, remainder to B. in tail, remainder to C. in tail, &c. levies a fine, or makes a feoffment to B. and his wife, and B. dies without issue, and the wife enters; it will be a forfeiture to C. R. 1 Rol. 855. l. 10. · So, if tenant for life joins with B. to whom a remainder in tail was limited, when his remainder is gone by the feoffment of his father with warranty. R. 1 Rol. 856. 1. 15. Cro. Car. 392. So, if there be tenant for life, remainder for life, and he in remainder for life levies a fine; it will be a forfeiture of his estate, though the reversion, or remainder, be not devested. R. 1 Leo. 40. Dub. Sti. 192, 193. So, though the remainder was to A. in tail, and afterwards in fee to him, who had the remainder for life, and levied the fiue. R. 1 Rol. 855. 1. 20. So, if there be a lease for years, remainder to A. for life, remainder to B. in tail, remainder to C. for life, &c. and A. and C. levy a fine sur concessit for their lives, it will be a forfeiture; for they grant a greater estate than they can lawfully make. Semb. 2 Jon. 70. So, if tenant for life or years of an advowson, &c. or other thing which lies in grant, levies a fine, it will be a forfeiture; though the reversion is not devested thereby. Co. L. 251. b. 1 Rol. 852. 1. 40. (m) (A 3.) What alienation will not be a forfeiture. But, generally, an alienation by a particular tenant is no forfeiture, if the reversion, or remainder, is not thereby devested: and therefore, if tenant for life or years of an advowson, rent, common, or other thing which lies in grant, by deed (n) grants his estate to another in fee, it is no forfeiture. Co. L. 251. b. 1 Rol. 854. 1.9. 12. (0) So, not divest the estate of him in reversion or remainder. 9 Rep. 106. b. 1 Vent. 257, 258.-3. And where a tenant for life levied a fine, and afterwards devised the premises, and died seised, it was held, that the entry and continuing possession of the devisee, was no disseisin of the reversioner. 12 East, 141. () Vide 14 Eliz. c. 8. (m) And if a copyholder levies a fine of his copyhold, it will operate as a forfeiture. Co. Sup. c. 11. (n) It is otherwise if he levies a fine; for though the fine, being of a rent, &c. passes no more than it may lawfully pass, yet, being a public and solemn renunciation of the estate for life in a court of record, this amounts to a forfeiture, and so differs from a grant in pais. 3 Bac. Abr. 195. Ro. Abr. 852. Co. Litt. 251. (0) 1. Of things which may be transferred without the notoriety of livery and seisin, such as rents, advowsons, &c. which lie in grant, a man cannot by any disposition or act in pais forfeit them; for the grant can be no way prejudicial to him in reversion, because, should the grantee claim an estate in fee, he can make no title without the original VOL. IV. C c grant So, if a man in remainder, or reversion, for life, of lands, &c. grants his estate by deed to another in fee, it is no forfeiture. Co. L. 251. b. 1 Rol. 854. 1. 11. So, if a cestuy que use for life, before the st. 27 H. 8. 10. had made a feoffment, it was no forfeiture. Mo. 38, 39. (p) So, if tenant for life bargains and sells (q) to another in fee, it is no forfeiture. 2 Leo. 60. (r) Or, makes a lease and release to another in fee. 3 Mod. 151. (s) So, if tenant for life, or for years, makes a lease for 1000 years. 2 Leo. 60. (t) Though he afterwards levies a fine to corroborate the lease; for nothing passes but for his life. Dub. 2 Jon. 99. So, if tenant for life leases for years to A. who makes a feoffment, and tenant for life releases to the feoffee; it is not a forfeiture of the estate for life. 1 Rol. 855. 1. 5. So, if tenant for life, or years, joins with him in reversion, or re grant made to his grantor; by which it must appear what interest he had, and consequently, what estate he could convey; and so the grantee, notwithstanding the grant in fee, can claim no larger estate than his grantor had power to make; and he in reversion therefore can receive no prejudice. 3 Bac. Abr. 195. 2. If, however, a man be seised of a manor for life, to which an advowson is appendant, and he alien one acre or the whole manor, with the advowson in fee, this is a forfeiture of the advowson; for as it is a forfeiture of the acre or manor to which it is appendant, so it must be also of the advowson, since the alienation makes no severance of them. Ro. Abr. 854. 3 Bac. Abr.195. (p) No fine levied by a cestui que trust for life, will be allowed in chancery to operate as a forfeiture, because it cannot affect the subsequent remainders. 2 P.Wms. (9) A bargain and sale, and covenant to stand seised, pass no interest but that which the bargainor or covenantor can lawfully transfer. For, as nothing but a use passes by these conveyances; and as no use can be greater than the estate out of which it is created; where a use is granted, greater than the legal estate out of which it is to issue, it is merely void; and the statute executes the possession to so much only of the use as is lawfully granted. (r) 1. 6 Rep. 14. b. 2. For though by the statute 27 H. 8. c. 10., deeds enrolled grew a common conveyance for transferring lands, which could not pass at common law without the investiture of livery; yet being a manner of conveyance known before at common law, it was construed to have no new effect given it by the statute, but what the statute expressed. Ibid. 3 Bac. Abr. 195. (s) 1. A lease and release being a lawful conveyance, that is, passing nothing but what the releasor may lawfully grant. 1T.R. 738. -2. So a fine sur concessit cannot work a forfeiture, since whatever estate it may profess to grant, it only passes that to which the party is entitled. 2 Taunt. 202. (t) A lease for years by tenant for life, was never looked upon to be a forfeiture, because the lessee for years was originally but a bailiff to the freeholder, and the tenant for life only had the freehold, and was to answer the services, and he in reversion was no wise affected by it, because there was no investiture or other act of notoriety done to dispossess him of his reversion. But upon the death of tenant for life, the termor's interest ceased, because the person from whom he derived his authority as bailiff, being dead, the authority must necessarily cease with the person that granted it. And in this case, if tenant for life enters upon his lessee, and makes a feoffment to another, this is a forfeiture of his whole estate, but the term for years continues, because the wrongful act of tenant for life shall not prejudice a stranger's interest; and if he in reversion enters, he must take it subject to the charges he had power by law to lay on it; yet in this case, if tenant for life had entered and committed waste, this had been a forfeiture of his estate, and the term had been lost too, but this is by the express words of the statute of Gloucester, which gives the place wasted as a penalty to him in reversion, and cannot be done if the term continues, notwithstanding the waste. 3 Bac. Abr. 194, 195. 8 Rep. 45. Co. Litt. 235. mainder |