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r 



«J70< 



^ 



A TREATISE 



ON 



THE LAW OF COPYHOLDS 



AlTD 



i 



CUSTOMARY TENURES OF LAND: 

CONTAIinNO 

THE COPYHOLD ACTS OF 1852, 1858, 1887; 

TffS PRINCIPAL F0BM8 USED BY THE BOARD OF AGBIOULTVRE ; 

PRECEDENTS OF ASSURANCES, AND FORMS. 



SECOND EDITION 

BY 

' V CHARLES L- ELTON, 

* GF IJSOOLS^B nsnf, ONB OF HBB ]CAJE8TT*8 OOXTIISEL, 

jiiakor of ^^ The Tenures of Kent,*' ** The Law of Commone and Waeie Zande,'* 

" The OHgim of English EUiory, ^." 

▲ND 

HERBERT J. H. MAOKA.T, 

or TBB lODDZiB TBOWt, BAS3IISTBB*AX"£AV, I1L.B. 



LONDON : 

TVILDY AlSrr> SONS, 

LINCOLN'S INN ARCHWAY, W.O., 

1893 



\ 



loivdon: 

PBIIITIED BT 0. F. BOWOBTH, OBEA.T NEW STREET, 7ETTEB LAUB, B.O* 



PREFACE 

TO. 

THE SECOND EDITION. 



It has been found necessary to make considerable 
additions to the text of this work owing to the 
statutes and decisions by which the Law of Copy- 
holds has been affected since the appearance of 
the first edition. The principal outlines of the 
work have been preserved, although in one or 
two chapters the arrangement of the argument 
has been varied, with the object of obtaining 
greater clearness. The changes in the law intro- 
duced by the Copyhold Act, 1887, have made it 
necessary to re-cast the whole chapter relating 
to Enfranchisement. 

The Appendix will be found to contain the 

latest instructions and forms relating to inclo- 

sures, the exchange and partition of copyholds, 

and the enfranchisement of land of all tenures 

from manorial, dues and incidents. A few prece- 

a2 



IV PREFACE TO THE SECOND EDITION. 

dents of copyhold assurances and enrolments have 
been added. In addition to the Copyhold Acts, 
1852, 1868, and 1887, extracts have been made 
from the Copyhold Act, 1841, as well as from 
those portions of the Wills Act, 1837, and the 
latest Stamp Act, which seem to be important in 
relation to copyhold or customary tenure. 

Care has been taken to make the Index com- 
plete, and to give references to as many reports 
as possible in the enlarged Table of Cases. 

CHARLES I. ELTON. 
HERBERT J. H. MACKAY. 



33, ChAJTOEBT liANEy 

December, 1892. 



( ▼ ) 



PREFACE 

TO 

THE PIEST EDITION. 



The object of the following chapters is to provide a short 
and convenient handbook of the Law relating to Copj- 
holds, and to the manorial freeholds with customary inci- 
dents, still to be found in so many districts, of which the 
general resemblance to certain kinds of copyholds has 
not unfrequently led to disputes and difficulties. It is 
hoped that the reader will find in this book a succinct 
statement of those portions of the old law on these subjects 
which are still necessary to be borne in mind in dealing with 
customary estates. The writer has endeavoured to shorten 
the labour of those who are concerned with lands of these 
kinds, by omitting a great part of what is stated in the 
old Abridgments, as being rather of historical or archsBO- 
logical value, than of any present practical importance. 
It has also been thought useful to insert in an Appendix 
the principal Forms used in dealings with the Copyhold 
Gonunissioners, and to print the Copyhold Acts of 1852 
and 1858 at the end of the work. It is hoped that there 



Yl PREFACE TO THE FIR8T EDITION. 

may be room for a work of this kind, notwithstanding 
the existence of so many important treatises upon the 
same subjects, among which the first place must be given 
to the great work of Serjeant Scriven and the useful 
manuals of Mr. Bouse and Mr. Cuddon on the subject of 
the enfranchisement of copyholds. 

C. ELTON. 



2, New Squake, Lincoln's L^n, 
May, 1874. 



( vu ) 



TABLE OF CONTENTS. 



PAOB 
Tabub op Cabes j^ 

Tabus of Statutes gited \Tn^ 

^^aaasyiAnonB 1^^ 



Chapter I.— Intbodvctoby 1 ^20 

n.—NArt7BB OF Estates IN OoPYHOLDs . . 21 — 15 

m. — OOITTBTANCBS OF Ck)PTHOLDS . , . 46 95 

IV.— StATUTOBY OomTBTAHOBS .... 96—125 

v.— The Descent OF Copyholds . . . 126—156 

VI-— Incidents of Copyhold Estates . . 157 219 

vu.— Incidents of Copyholds {continued) and 

Manobial Fbanchises .... 220—247 

YULi.— Eights of Cokkon ..... 248 — 299 

IX.— Manobial CoiTBTS 300—323 

X. — Eyidencb 324 348 

XL— EZTINOUISHMENT AND EnFBANCHISEUENT. 349 — 443 



APPENDICES. 

I. — ^InBtroctions for effecting exchanges and partitions of 
land and diyisionB of intermixed lands under the 
Indosore Acts. Issued by the Board of Agricul- 
ture . 445—453 

Form of application for exchange .... 453 

for partition .... 455 
for division of intermixed lands . 456 



Vm TABLE OP CONTENTS. 

Appendices — continued* page | 

n. — ^Informatioii and directions as to the mode in which 
applications for the regulation or inclosure of com- 
mons under the Inclosure Acts, 1845 to 1882, are to 
be made to the Board of Agriculture, with explana- 
tions respecting the law relating to the regulation 
and inclosure of conmions .... 459 — 464 

Form of adyertisement . • . . . . 464 

Application to the Board of Agriculture for a J 

F^yisional Order for the regulation of a ^ 

common 464 

Application to the Board of Agriculture for a Pro- 
visional Order for the inclosure of a common . 465 

m. — Minute of the Board of Agriculture as to proceedings 
on compulsory enfranchisements under the Copyhold 
Acts, 1852 to 1887 466—472 

Scale of compensation in ordinary cases of enfran- 
chisement of copyholds of inheritance, framed pur- 
suant to sect. 30 of the Copyhold Act, 1887 . 473—475 ' 

Scale of allowance to valuers for services performed in 
respect of enfranchisements imder the Copyhold 
Acts, framed pursuant to sect. 30 of the Copyhold 
Act, 1887 476 [ 

Enfranchisement forms : — 

Notice from lord or tenant of desire for enfran- 
chisement 477 

Notice from lord or tenant or owner of desire for 
extinguishment of manorial incidents and enfran- 
chisement 477 

Ag^reement between lord and tenant or owner that il 

the Board of Agriculture shall determine the 
compensation for ^ifranchisement . . . 478 

Information to be furnished to the Board of Agri- ^ 

culture (Copyhold Department) in every case of 
enfranchisement under the Copyhold Acts . 478 — 480 

Agreement between lord and tenant settling amount 
of enfranchisement compensation . . . 480 m 

Consent of lord to include reserved rights • . 481 ' 

Joint appointment of one valuer by lord and tenant 
or owner 481 



f 



TABLB OF 00NTSKT8. IS 

Enfiaiichisemeiit Fonufl — continued, page 

Appointment of valuer by lord or tenant or owner . 482 

Notice of appointment of valuer from lord or tenant 
or owner, and calling on the other to appoint bis 
valuer 482 

Appointment of umpire by valuers .... 483 

Extension of time for appointment of valuers or 
umpire, and for making decision .... 483 

Appointment of valuer or umpire by the Board of 
Agriculture 484 

Declaiation as to lord's title 484 

Dedsion of valuer or valuers 485 

Decision of umpire 486 

Determination of Board of Agriculture . . 488 

Appointment of trustees 488 

Beceipt for compensation money .... 489 

Deed of enfranchisement of copyholds . . . 490 

Deed of enfranchisement of freeholds, &c., liable to 
heriots and other manorial incidents . . . 491 

Notice to person entitled to the first vested estate of 
inheritance in the manor, to be given if the en- 
franchisement be under the Copyhold Act, 1841 . 492 

rV. — ^Table of Fees authorised to be taken by the Board of 
Agzicultore in respect of transactions under the 
Copyhold and Indosure Acts .... 493—495 

Y. — ^Precedents of court rolls, copyhold assurances, &c« 

Style of a court leet and court baron .... 496 
Style of a court baron and customary court • • 496 

No. 1. Presentment in a court leet as to residents absent 

from the court 496 

No. 2. Presentment in a court baron and customary court 
as to tenants who have n^lected to perform their 
suit 497 

No. 3. Presentment of the death of a copyhold tenant . 497 

No. 4. Presentment of a copyholder's will under which 

admittance ia claimed 497 

No. 5. Admittance on descent, in court .... 497 



X TABLE OP OONTBNT0. 

Appendices — continued, page 

y. Precedents of court rolls, &c. — continued. 
No. 6. Presentment of the death of a copyholder, and 

default recorded upon proclamation for his heir . 498 
No. 7. First proclamation in a statutory court held with- 
out the presence of homagers, of the death of a 
customary tenant, and default recorded . . . 498 
No. 8. Second proclamation of the death of a customary 

tenant and second default recorded .... 498 

No. 9. Third proclamation of the death of a customary 
tenant; third default recorded; precept to seize 
quousque iaeaed 498 

No. 10. Surrender in court by a copyholder . . . 499 

No. 11. Conditional surrender in court by a copyholder . 499 

No. 12. Admittance of a purchaser at the court at which 

the surrender is made to him 499 

No. 13. Acknowledgment in court by a mortgagee of the 
payment and satisfaction of moneys secured by a 
conditional surrender 500 

No. 14. Admittance in court of a tenant in tail in posses- 
sion; surrender by way of disentailing assurance 
and admittance thereon 600 

No. 15. Surrender in court by a married woman entitled 
to an equitable estate tail by way of disentailing 
assurance 501 

No. 16. Yoluntary grant in court to take effect in rever- 
sion after the death, &c., of the lives in possession • 501 

No. 17. Yoluntary grant in court for lives successively 

where the previous estate has fallen in . . . 502 

No. 18. Surrender in court by the first life on the death 
of the second of three lives in order to fill up the 
copy and admittance thereon 502 

No. 19. Surrender out of court by a copyholder for lives 

for the purpose of exchanging the lives . . . 503 

No. 20. Be-grant on the foregoing surrender . . . 503 

No. 21. Surrender out of court by a copyholder in fee to 

a purchaser 504 

No. 22. Surrender out of court by an equitable tenant in 
tail in possession, with the consent of the protector 
of the settlement, for the purpose of barring the 
entail 504 



TABLE OF 0ONTBNT8. XI 

PAGE 

V. Preoedents of court rolls, &o. — eaniinued. 

No. 23. Preoept to seize quouaque after proclamationB for 

heirs of deceased tenant 506 

No. 24. Precept to seize quotuque by yirtue of special 

custom to compel surrenderee to take admittance . 506 

No. 25. Betum of the bailiff to be indorsed on precept to 

seize quou$que 506 

No. 26. Licence to demise 506 

YI.— Extract from the Close Bolls of 18 Henry m. as to 

manorial courts 507 

Vli. — ^The customs of Tetminster Prima . . . 508 — 510 

Ym. — ^The customs of the copyholds of the Honour of 
Clitheroe, as ascertained by the Jiu^ of Survey 
within the Forest of Pendle in the Manor of 
Ightenhill, a.d. 1666 511—514 

IX.— Extracts from the Wills Act, 1837 . . 515—518 

X.— Extracts from the Copyhold Act, 1841 . . 519—522 

XL— The Copyhold Act, 1852 523—539 

XTT.— The Copyhold Act, 1858 540^555 

XHL— The Copyhold Act, 1887 556—571 

XIV.— Extracts from the Stamp Act, 1891 . . . 572—588 



INDEX 589 



TABLE OF CASES. 



A. 

PAoa 
Abbott, PUyterB v., 2 M7I. & K. 97 ; 3 L. J. ^. S. Ch. 57 - 189 

Abbott V. Weekly, 1 Ler. 76 - - . • - - - 298 

Abergayeimy (Lord) v. Thomaa, 3 Anst. 668, n. - 43, 174 

Abemethy, Boddington v., 5 B. & 0. 776 ; 8 D. & By. 626 ; 1 
L. J. E. B. 179 24, 60 

Abingdon (Earl), Walker v., 10 L. J. N. S. Gh. 289; 5 Jnr. 
714 43 

Abington, lipsoombe v., 1 Q. B. 776 ; 1 G. & D. 230; 6 Jnr. 
267 200, 203 

Abney, Bath (Earl of) v., 1 Burr. 206 ; 1 Ld. Ken. 471 ; Dick. 
260 23, 34, 179, 183 

Abraham, Allen v., 2 Buk. 32 - - - - 174, 344 

Abralifiin, Wella v., L. B. 7 Q. B. 554; 41 L. J. N. S. Q. B. 
306 ; 26 L. T. N. S. 433; 20 W. B. 659 - - - 242 

Adams, Bemeld v., 3 BuIb. 80 - - - 197, 230 

Adams, Biyers (Lord) v., 3 Ex. Diy. 361 ; 48 L. J. N. S. Ex. 
47 ; 39 L. T. N. S. 39; 27 W. B. 381 - - - 261 

Adams, Smith v., 18Beay. 499 ; 5 De G. M. & G. 712 ; 24 L. J. 
N. S. Oh. 258; 18 Jnr. 968 - - - - 69, 158, 162 

Addington v. Clode, 2 W. Bl. 1030 - - - - 315 

Agarddey Manor (Lord of), Begina v., 5 Dowl. 19 - - 72 

Agg-Gardner, In re, 25 Ch. Diy. 600; 53 L. J. N. S. Oh. 347 ; 
49 L. T. N. S. 804 ; 32 W. B. 356 - - - 77, 356 

Aldiich V. Oooper, 8 Yes. jnn. 382 - - ... 66 

Allan, Bogers v., 1 Oamp. 309 - - - - - 335 

Allen V. Abrabam, 2 Bnls. 32 - - - - 174, 344 

Allen V. Bewsey, 7 Oh. Diy. 453 ; 37 L. T. N. S. 688 - 43, 509 

Allan, Dickman v., 2 Yentr. 138 - - - - - 246 

Allen, Wilson v., IJ. & W. 611 - - 69, 151, 354, 355 

Allfrey, In re, W. N. (1889) 40 535 

Allgood V, Gibeon, 25 W. B. 60; 34 L. T. N. S. 883 - - 260 

Allgood, Bex v., 7 T. B. 746 315 

Alman, Bowleston v., Oro. Eliz. 748 - - - - 197 



XIV TABLB OF CASES. 

PAQH 

Alston, Garland v., 3 H. & N. 390 ; 27 L. J. N. S. Ex. 438; 
4 Jnr. N. S. 539 - - - - - 182, 185 

AmlmrBt, Austin v., 7 Oh. Div. 689; 47 L. J. N. S. Oh. 467 ; 
38 L. T. N. S. 217 ; 26 W. B. 312 - - 249, 260, 293, 307 

Amhiust, Fox v., L. B. 20 £q. 403 ; 44 L. J. N. S. Oh. 666 - 256, 

293, 307 

Anderson v, Heywood, 3 Leon. 221 ; 4 Leon. 38 - - 154 

Anderson, Laoy v., cited 1 Swanst. 398, n., 445 ; Oho. Oas. Oh. 
155 164 

Andrews v. Hulse, 4 E. & J. 392 ; 27 L. J. N. S. Oh. 655; 4 
Jut. N. S. 581 226 

Anglesea (Marquis of), Dibben v., 2 Or. & M. 722; 4Tyr. 926 - 296 

Anglesey (Marquis of) v» Hatherton (Lord), 10 M. & W. 218 ; 
12 L. J. N. B. Ex. 57 - -r - - - 237, 342 

Anon., Oro. Eliz. 8- - - - - -350 

Anon., Dyer, 179 b - - - - - - 136 

Anon., 1 Freem. 494 - - - - - - 173 

Anon., 1 Freem. 516 - - - - - - 165 

Anon., 2 Freem. 65 - - - - - - 67 

Anon., Godb. 2- - - - - --137 

Anon., 3 Leon. 13 ----- - 210 

Anon., 4 Leon. 239 - - - - - - 201 

Anon., Moo. 185 - - - - - - 350 

Anon., 1 Ld. Baym. 735 - - - - - - 347 

Anon., 4 Bep. 24 a- - - - - -50 

Anon., 3 Wils. 126 276 

Appleton v. Braybrook (Lord), 6 M. ft S. 34 - - 313, 346 

Appleton v. Bowley, L. B. 8 Eq. 139 - - - - 166 

Appleyard, Bailey v., 8 A. & E. 161 ; 3 N. & P. 257; 1 W. 
W. & H. 208; 2 Jur. 872 343 

Archbold v. Scully, 9 H. L. 0. 360; 7 Jur. N. S. 1169 - - 214 

Archer, Butter v., Owen, 152 - - - - - 201 

Arden» Olarke v., 16 0. B. 227: 3 Oom. Law Bep. 781; 24 
L. J. N. S. 0. P. 162 ; 1 Jur. N. S. 710 - - 36, 230 

Arden, Dimes v., 6 N. & M. 494 - - - - 334 

Arden v. Wilson, L. B. 7 0. P. 535 ; 41 L. J. N. S. 0. P. 273 ; 

26 L. T. N. S. 887 393,526 

Arlett VI EUis, 7 B. & 0. 346; 9 D. & By. 897; 9 B. & 0. 

671; 5 L. J. K. B. 391 - 14, 263, 272, 276, 279, 280, 283, 307 
Arnold, Oatttey v., 4 K. & J. 595 - - - - 10, 350 

Arnold, Lattibury v., 1 Bing. 217 - - - - 262 

Arrowsmitti, Haddon {or Hall) v., Oro. Eliz. 461 ; Owen, 72 ; 

Poph. 105 36 

Arttiington v, Fawkes, 2 Yem. 356 - - - - 267 

Arundel v. Falmoutti (Viscount), 2 M. & S. 440 - - - 274 



TABLE OF CASES. XV 

PAOJC 

Arundel (CountesB af)ir. Bteere, Gro. Jao. 25 - - - 257 

Axonders (£kffl of) Case, Dyer, 342 b ; Ben. & D. 290 - - 137 

Aslnnflai^ (or Ashmond) v. Banger, 1 Ld. Baym. 551 ; 12 Mod. 
378; 2 Balk. 638; 1 Com. 71 - - - - 231 

Aakwith, Darcy (Lord) v., Hob. 234 - - -225,227 

Afltie, Grant v., 2 Doug. 722 - - - 175, 176, 177, 187 

Aston (or Astwicke), Eyer (or Ewer) v.. Moo. 271; 1 And. 192 - 167 

Ather, Biddidph v., 2 Wils. 23 - - . - 328 

Atkins, Yaugban v., 5 Bnrr. 2764 - - 63, 131, 162, 165 

Atkinson v. Teasdale, 2 W. Bl. 817 ; 3 Wils. 278 - 264, 275 

Att-Gen. v. Chambers, 4 De G. M. & G. 206 ; 23 L. J. N. S. 
Ob. 662; 18 Jur. 779 328 

Att.-Gen. v. Emerson, (1891) App. Cas. 649 ; 61 L. J. N. S. 
Q. B. 79 ; 65 L. T. N. B. 564 - - - 12, 15 

Att-Gen. v. Ewelme Hospital, 17 Beay. 366 ; 22 L. J. N. S. 
Ob. 846 18 

Att.-Gen. v. Hanmer, 27 L. J. N. S. Cb. 837 ; 34 L. T. N. B. 
379; 4 Jur. N. B. 751 ; 6 W. E. 804 - - - - 328 

Att-Gen. v. Hotbam (Lord), Turn. & B. 209 - . - 347 

Att-Gen. v. Jones, 2 H. & C. 347 ; 83 L. J. N. S. Ex. 249 ; 1 
L. T. N. B. 955 328 

Att-Gen. v. Leeds (Duke of), 2 Myl. ft K 343 - - - 222 

Att.-Gen. v. Lewin, 1 Coop. 51 ; 8 Sim. 366; 6 L. J. N. B. Cb. 
204; 1 Jur. 234 - 51 

Att.-Gen. v. Matbias, 4 K. & J. 579 ; 27 L. J. N. B. Cb. 
761 248, 260 

Att.-Gen. v. Parsons, 2 Cr. & J. 279 ; 2 Tyr. 223 - 11, 239 

Att-Gen. v. Bands, Hardr. 488 ; 3 Cb. B. 33 - - - 221 

Att.-Gen. v. Sitwell, 1 T. & C. Ex. 559 ; 5 L. J. N. B. Ex. Eq. 
86 12 

Att-Gen. v. Btepbens, 6 De G. M. & G. Ill ; 1 K. & J. 724 - 228 

Att-Gen. v, Tomline, 15 Cb. Div. 150 (C. A.); 5 Cb. Div. 750; 
46 L. J. N. B. Cb. 654; 36 L. T. N. B. 684; 25 W. B. 
802 234, 235, 280, 285, 286 

Att-Gto. V, Vincent, Bunb. 192 ; 2 Eq. Cas. Abr. 378 - 227 

Attree v. Bcutt, 6 East, 476 ; 2 Bmitb, 449 - 187, 204, 205, 206 

Auncelme v, Auncelme, Cro. Jac. 31 - - - - 185 

Austin V. Amburst, 7 Cb. Div. 689; 47 L. J. N. B. Cb. 467; 38 

li. T. N. B. 217 ; 26 W. E. 312 - - 249, 260, 293, 307 

Austin v. Bennett, 1 Balk. 356 ... - 199 

Austin, Curling v., 2 Dr. & Sm. 129 - - . - 76 

Avery, Lasbmer v., Cro. Jac. 126 ... - I66 

Ayles V. Cox, 16 Beav. 23 - - - - - - 78 

Aylea v. Cox, Ex parte Attwood, 17 Beay. 584- - - 99 



I 

I 



XYl TABLE OF CASES. 



B. 

PiiOB 

Badger v. Ford, 3 B. & Aid. 153 - 19, 268, 279, 2f)3, 342 

Bagshawe v. Goward, Gro. Jac. 147; Noy, 119 - - - 241 

Bailey v. Appleyard, 8 A. & E. 161 ; 3 N. & P. 257; 1 W. W. 
& H. 208; 2 Jur. 872 343 

Baily, Stephens v., Nels. Ch. Bep. 106 - - - - 222 

Baines, Deyeniflh v., Ch. Pr. 3 ; 2 Eq. Gas. Abr. 43 - - 79 

Baker, OarriU v., 1 Brownl. 227 275 

Baker, Milfax v., 1 Lev. 26 - " - ' - - - 224 

Baker, Smith v., 1 Atk. 385 - - - - - 43 

Baker, Wade v., 1 Ld. Baym. 130 - - - - 170 

Baker v. Wich, 1 Salk. 56 - - < - - - 325 

Baldwere, Boe d. Grow v., 5 T. B. 104 - - - - 26 

Baldwin v. Peach, 1 Y. & G. Ex. 453 - - - - 218 

Baldwin v. Tudge, 2 Wils. 20 - - - - - 197 

Ball, PhiUipe v., 6 C. B. N. S. 811 ; 29 L. J. N. S. G. P. 7 ; 6 
Jur. N. S. 48 . - . - 13,50,93.324,363 

Banks, Bex v., 3 Burr. 1452 - - - - - 302 

Banks, Wright v., 3 B. ft Ad. 664 - - - - - 148 

Barker v, Denham, Sty. 145 .... 139, 151 

Barker v. Hill, 2 Gh. Eep. 218 - - - . . 67 

Barker, Payne v., 0. Bridg. 18 - - 66, 130, 133, 139 

Barkham, Newcomen v., 2 Yem. 729 ; Gh. Prec. 464 - - 145 

Barlow v. Bhodes, 1 Gr. & Mees. 439 - - - - 269 

Barnes, Ex parte, 2 Dowl. N. S. 20 - - - . 315 

Barnes v, Gorke, 3 Lev. 308 - - - . . 185 

Barnes, Johnson v., L. B. 8 G. P. 527; 42 L. J. N. S. G. P. 
259 ; 29 L. T. N. S. 65 - - - - - 259, 270 

Barnes v, Mawson, 1 M. & S. 77 - - 233, 328, 331 

Barnes, Nanson v., L. B. 7 Eq. 250; 20 L. T. N. S. 154; 17 
W.B.429 83 

Bamett v. Guildford (Earl of), 11 Exch. 19 : 24 L. J. N. S. Ex. 
281; 1 Jur. N.S. 1142 149 

Bamett, Muggleton v., 2 H. & N. 653 ; 27 L. J. N. S. Ex. 125 ; 
4 Jur. N. S. 139 130, 133, 143 

Barr, Fane v., cited 1 Salk. 243; 6 Mod. 120 - - - 130 

Barrett, Grease v., 1 G. M. & B. 919 - - - . 380 

Barrett, Smith v., 1 Sid. 161 - - - . - 285 

Baiiington's (Sir Francis) Gase, 8 Bep. 136 b - - 239, 296 

Bartle, Doe d. Netheroote v., 5 B. & Aid. 492 ; 1 D. & By. 81 - 84 

Bartlet, Howard v.. Hob. 181 - - . - 161, 162 

Bartlettv. Downes, 3 B. & G. 616 ; 5 D. & By. 626; 1 G. & P. 522; 

3 L. J. K. B. 90 - - . - - - 308 

Barwick v. Matthews, 5 Taunt. 365 ; 1 ^arsh, 50 - - 249 



• • 



TABLE OF CASES. XVU 

PAoa 
-^ Basingstoke (Mayor of) v. Bolton (Lord), 1 Dr. 270 ; 8 Dr. M) ; 

22 L. J. N. S. Oh. 305; 17 Jup. 67 - 190, 200, 202, 203, 

209, 210, 212 

Baspole (or Baspool) v. Long, Yelv.l; Cro.Eliz. 879; Noy,42 - 67, 80 

Baasett, Bichards v., 10 B. ft G. 657 - - - 307, 338 

Bates V. Bates, 1 Ld. Baym. 326; 1 Salk. 254; 1 Leon. 92 - 159 

Bateeon v. Green, 5 T. B. 411 - - - - 273, 274 

Bath (Earl of) v. Abney, 1 Burr. 206 ; 1 Ld. Ken. 471 ; Dick. 
260 23, 34, 179, 183 

Batmore (or Blackbume) v, Grayes, 1 Yentr. 260 ; 1 Mod. 102, 
120 ; 3 Keb. 263 ; 2 Lev. 107 - - - 186, 187 

Bawden, Bight d. The Dean and Chapter of Wells, 3 East, 
260 - 41, 69, 502 

Baxter v. Dowdswell, 2 Ley. 138 - - - - 136, 139 

Bayes, Lee v., 18 0. B. 599; 25 L. J. N. S. 0. P. 249 ; 2 Jnr. 
N. S. 1093 242 

Baylis, Oaldwall v., 2 Mer. 408 226 

Baylis v. Tyssen-Amhnrst, 6 Oh. Diy. 500 ; 46 L. J. N. S. Oh. 
718 ; 37 li. T. N. S. 493 - - - - 253, 254 

Beadsworth v. Torkington, 1 Q. B. 782 ; 1 Q. & D. 482 ; 6 Jnr. 
339 -260 

Beale v. Langley (or BeU and Langlejr's Oase), 2 Leon. 209 ; 
4 Leon. 230 13, 202 

Beale v. Symonds, 16 Beay. 406 - - - - - 222 

Beauchamp (Earl) v. Winn, L. B. 6 H. L. 223 - - 238 

Beaufort (Duke of) v. Smith, 4 Ezch. 450 ; 19 L. J. N. S. 
Ex. 97 333 

Beaufort (Duke of) v. Swansea (Mayor, &c, of), 3 Exch. 413 ; 
4 L. T. N. S. 453 328 

Bechenowe, Sharpe v., Lutw. 398 - - - - - 246 

Bedanan, Horton v., 6 T. B. 760 - - - - 342 

Bedfordshire (Inhabitants of). Beg. v., 4 E. & B. 535 329, 330 

Belfield v. Adams, 3 Buls. 80 - - - - 197, 230 

BeU and Langle/s Oase. {See Beale v, Langley.) 

Benbury, Worledge v., Oro. Jac. 436 ; 2 BuIb. 216 ; 1 Boll. B. 1 2 36 

Benoe v. Gilpin, L. B. 3 Ex. 76; 37 L. J. N. S. Ex. 36 ; 17 
L. T. N. S. 655 ; 16 W. B. 705 - - - 22, 73, 91 

Bennett, Austin v., 1 Salk. 356 - - - - - 199 

Bennett v, Dayis, 2 P. Wms. 316 - - - - 168 

Bennett v, Beeye, Willes, 227 258 

Benny (or Benson), Turner v., 1 Mod. 61 ; 1 Ley. 293 ; 2 Eeb. 
666 61 

Benson v. Ohester, 8 T. B. 396 - - 16, 259, 270, 283 

Benson v. Soott, 4 Mod. 251; 12 Mod. 49; Oarth. 275; 1 Salk. 
185; 3 Ley. 385; Oomb. 233 ; Skin. 406 - - 63, 160, 165 

Berkeley, HoUoway v., 6 B. & 0. 2 ; 9 D. & By. 83 187, 204, 206 
B. b 



XVm TABLE OF CASES. 

PAOB 

Berkeley's (Lord) Case, Hale, De Jure Maria, c. 6- - - 14 

Best, Penryn (Mayor of) v., 3 Ex. Div. 292 - - - 246 

Betts V. Thompson, L. B. 6 Gh. 732 ; 25 L. T. N. S. 363 ; 19 
W. R. 1098 - - - - - 249, 267, 276 

Beyersham's Case, 2 Yentr. 345 ; 2 Ch. Cas. 194 - - 349 

BeyeTBham, Dayies v., 2 Freem. 157 - - - 64, 91 

Beyil's Case, 4 Eep. 8a; 1 And. 57 - - - - 212 

Beyis, Grabb v., cited 1 EoU. Eep. 48 - - - - 173 

Beyiss, Doe d. Einglake v., 7 C. B. 456; 18 L. J. N. S. C. P. 
128 16 

Bewsey, Allen u., 7 Ch. Diy. 453 ; 37 L. T. N. S. 688 - 43, 509 

Bickerton, Bebow v., Trin. 7 Geo. I., Ex., cited Bob. Gay. 100 138 

Bickley v. Bickley, L. E. 4 Eq. 216 ; 36 L. J. N. S. Ch. 
817 126, 133 

Bidder v. Bridges, W. N. (1886) 148 (C. A.) ; W. N. (1885) 183 ; 
54 L. T. N. S. 529; 34 W. E. 514 - - - - 335 

Biddulph V. Ather, 2 Wils. 23 - , - - - - 328 

Bignold, Bugden v., 2 Y. & C. Ch. 377* - - - 75 

Bingham v, Woodgate, 1 E. & M. 32 ; Taml. 183 ; 8 L. J. 
Ch. 46 2,351 

Birkmire, Eogers v., 2 Stra. 1040; Lee, temp. Hardw. 245 - 200, 203 

Bishop's Stoke Manor (Lord of), Eeg. v., 8 Dowl. 608; 4 JTur. 
630 62, 312 

Blackbnme v. Grayee. {See Batmore v, Grayes.) 

Blaokett v. Bradley, 8 Jnr. N. S. 688 - - - - 234 

Blackwell, Lemon v., Skin. 191 - - - - 13 

Blake, Trotter v., 2 Mod. 229 - - - 175, 230, 344 

Blaker v. Wells, 28 L. T. N. S. 21 - - - - 413 

Bland v, Lipsoombe, 4 E. & B. 712 n. ; 3 Com. Law Eep. 261 ; 

24 L. J. N. S. Q. B. 155 n.; 24 L. T. N. S. 92 ; 1 Jnr. N. S. 

707 - - -. 250 

Bleeke, Parker v., Cro. Oar. 668 - - - - 166 

Blemmerhasset v, Hnmberstone, Hutt. 65 ; W. Jon. 48 - 349 

Blewett V. Jenkins, 12 C. B. N. S. 16 - - 211, 232, 235 

Blewett V, Tregonning, 3 A. ft £. 554; 6 N. ft M. 234; 4 L. J. 

N. S. Z. B. 223 248 

Blewitt's Case, Ley, 47 48 

Blunt V. aark, 2 Sid. 37, 61 - - - - 70, 139 

Boddington v, Abemethy, 6 B. ft 0. 776; 8 Dow. ft Ey. 

626 ; 1 L. J. Z B. 179 24, 60 

Bolton (Lord), Basingstoke (Mayor of) v., 1 Dr. 270 ; 3 Dr. 50 ; 

22 L. J. N. S. Ch. 305 ; 17 Jur. 57 - 190, 200, 202, 203, 209, 

210, 212 

Bolton V, Ward, 4 Hare, 530; 14 L. J. N. S. Ch. 861 ; 9 Jur. 

591 118 



TABLE OF CASES. XIX 

PAOB 

Bonaall Manor (Lord of), Bex v., 8 B. ft 0. 173; 4 D. ft By. 
825 183, 322 

Booth, Brigtowv., L. B.6O.P.80; 39 L. J. N. S. 0. P. 47 ; 21 
L. T. N. S. 427 ; 18 W. B. 138 192 

Boothby, Lee v., 1 Keb. 720 347 

Bomeford v. Packingtoii, 1 Leon. 1 • . 162, 224 

Bottriell, Doe d. TunstdU v., 5 B. ft Ad. 131 - - - 66 

Boughey, Bex v., 1 B. ft 0. 565 178 

Bonloott 17. Winmill, 2 Camp. 261 - - 280, 282, 284, 311 

Bourn's Case, cited in Hoe v. Taylor, Gro. Eliz. 413 . . 16 

Bonme v. Taylor, 10 East, 189 .... 232 

Bousfield, Doe d. Bobinson v., 6 Q. B. 492 ; 1 0. ft E. 558 ; 14 
L. J. N. S. Q. B. 42; 8 Jur. 1121 - - - 35, 230 

Bowlston V. Hardy, Cro. Eliz. 547 ; 5 Bep. 104 h ; Moo. 453 - 239 

Bowser v. Maclean, 2 De G. F. ft J. 415 ; 30 L. J. N. S. Ch. 273- 234 

Boyd V. Prawle, 14 W. B. 1009 ; 14 L. T. N. S. 753 - - 30 

Brabant v. Wilson, L. B. I'Q. B. 44 ; 35 L. J. N. S. Q. B. 49; 
12 Jur. N. S. 24 ; 14 W. B. 28; 6 B. ft S. 979 - 393, 417 

Bradford v. Brownjohn, L. B. 3 Cb. 711 ; 16 W. B. 500, 1178 ; 
19 L. T. N. S. 248 188 

Bradley, Blackett v., 8 Jnr. N. S. 588 - - - - 234 

Bradfihaw v. Eyre, Cro. Eliz. 570 - - - 268, 269 

Bradsbaw v, Lawson, 4 T. B. 443 - - - 10, 300, 353 

Bradstreet, Hammond v., 10 Exch. 390 ; 23 L. J. N. S. Ex. 332- 335 

Bragg's Case, Godb. 135 ; Owen, 4 ; Gonldsb. 37 - - - 11 

Brandwood, Major v., Cro. Car. 260 - - - - 199 

Branthwaite, Lewis v., 2 B. ft Ad. 437 ; 9 L. J. K B. 263 - 235 

Braunch's (Sir Jobn) Case, 1 Leon. 104 - - - 197 

Braybrook (Lord), Appleton v., 6 M. ft S. 34 - 318, 346 

Breare, Hoboyd v., 2 B. ft Aid. 473 7 - - - 300 

Bieoon (Mayor of) v. Edwards, 1 H. ft C. 51 ; 31 L. J. N. S. Ex. 
368- - - -*- - --245 

Breeze v. Hawker, 14 Sim. 350 - - - - 346 

Brenton, Bowe v., 8 B. ft C. 737 ; 3 Man. ft By. 361 - 45, 333, 343 

Brewer's Co. (Master of), Bex v., 3 B. ft C. 172 ; 4 D. ft By. 
492 150 

Bridge, Dariell v., 1 W. Bl. 46 336 

Bridges, Bidder v., W. N. (1886) 148 (C. A.) ; W. N. (1885) 183 ; 
54 L. T. N. S. 529 ; 34 W. B. 514 - - - - 335 

Bridges V. Garrett, L. B. 5 C. P. 451 ; 39 L. J. N. S. C. P. 251 ; 
22 L. T. N. S. 448 ; 18 W. B. 815 - - - - 311 

Bridgmkn v, Jennings, 1 Ld. Baym. 734 - - - - 334 

Bridgnortb (Mayor, ftc. of), Ellis v., 15 C. B. N. S. 52 - 244 

Bright V. Forth, Cro. Eliz. 442 - - - - 10, 18 

Brightwen, Doe d. Milner v., 10 East, 583 - 94, 149, 167, 168 

b2 



XX TABLE OF GASES. 

PiiOB 

Brinckmaxi) Dawson v., 3 Mac. & G. 63 - - - - 76 

Brisoo V. Lomax, 8 A. & E. 198 ; 3N.&P.308; IW.W.&H. 
236; 2 Jut. 682 - - - - - -332 

Bristow V. Booth, L. E. 5 0. P. 80 ; 39 L. J. N. S, 0. P. 47 ; 21 
L. T. N. S. 427 ; 18 W. E. 138 192 

Broadbent, Wilkes v., 1 Wils. 63; 2 Stra. 1224 - 19, 233 

Bromfield tr, Teigh, 2 Lev. 87 - - - - - 276 

Bromley, Hall v., 36 Ch. Div. 642 ; 66 L. J. N. S. Ch. 722 ; 66 
L. T. N. S. 683 ; 36 W. E. 659 - - 72, 73, 74, 191 

Brown's Case, 4 Eep. 21a; Moo. 126; 1 Leon. 2-1, 64, 148, 167, 

167, 182, 186 

Brown v. Dyer, 11 Mod. 73; Holt, 166 ... 68 

Brown v. Forster, Oro. Eliz. 392 - - - . - 69 

Brown v. Eaindle, 3 Ves. jun. 266 - - - 63, 67, 166 

Brown {or Bourn) v. Eawlins, 7 East, 409 ; 3 Smith, 406 - - 6 

Brown, Soratton v., 4 B. & C. 485 ; 6 D. & Ey. 636 - - 243 

Browne, Evans v., 6 Beay. 114 ; 11 L. J. N. S. Oh. 349; 6 Jnr. 
380 222 

Browne, Trinity College, Cambr. v., 1 Vem. 441 - - 202 

Brownjohn, Bradford v., L. B. 3 Ch. 711 ; 16 W. E. 500, 1178 ; 
19 L. T. N. S. 248 188 

Brownlow (Earl), Smith v., L. E. 9 Eq. 241 ; 21 L. T. N. 8. 
739 ; 18 W. E. 271 - - - - 260, 267, 276 

Bruce v. Helliwell, 6 H. & N. 609 ; 29 L. J. N. S. Ex. 297 - 238 

Bruerton's Case, 6 Eep. la - - - 198, 206 

Bryant v. Foot, L. E. 2 Q. B. 161 ; 9 B. & S. 444; 37 L. J. 
N. S. a B. 217 ; 18 L. T. N. S. 687 ; 16 W. E. 808 - 321 

Brydges, Doe d. Bacon v., 6 M. & Or. 282 . . 9, 327 

Brydges, Philips v., 3 Ves. jun. 120 - - - - 27 

Bucdeugh (Duchess), Eeg. v., 6 Mod. 160; 1 Salk. 358; Holt, 
128 ; 2 Ld. Eaym. 792 10 

Bucdeugh (Duke of) v. Wakefield, L. E. 4 H. L. Cas. 377 ; 39 

L. J. N. S. Ch. 441 ; 23 L. T. N. S. 102 - 234, 236 

Buckingham (Earl of) v. Drury, 3 Bro. P. C. 492 - - 164 

Buckingham (Duke of) v. Christdiurch (Dean and Chapter of), 

17 C. B. N. S. 391 ; 33 L. J. N. S. C. P. 322; 10 Jur. N. S. 

749 ; 10 L. T. N. 8. 575 ; 12 W. E. 986 - - 12, 49 

Budden, Doe d, Nepean v., 6 B. ft Aid. 626; 1 D. & Ey. 243 - 162 

Bugden v. Bignold, 2 Y. & C. Ch. 377 - - - - 75 

Bullen V. Michel, 2 Price, 399 - - - - -334 

Bullock V. Dibley, 4 Eep. 23 a ; Moo. 696 ; Poph. 38 - 56, 149 

Bullock, Gfodfrey v., 1 Eo. Abr. 623 - - - - 144 

Bunn V. Channen, 6 Taunt. 244 - . . . 265, 262 

Bunney, Gyppen v., Cro. Eliz. 604 - - - - 64 

Bunting v. Lepingwell, 4 Eep. 29a ; Moo. 169 ; Skin. 468 - 69, 62 



TABLE OF GASB8. 

FAOK 

Bnrdet v. Matthewman, Olayt. 107 - - - - 241 

Bnrdwick, Oland v., Cro. Eliz. 689 ... - 159 

Burgees v. Foeter, 1 Leon. 289; 4 Leon. 215 - - - 310 

BurgesB v. Wheate, 1 W. BL 123 ; 1 Eden, 177 - -221, 222 

Burlington (Earl of). Doe d, Grubb v., 5 B. & Ad. 507; 2 
N. & M. 534 ; 3 L. J. N. S. K B. 26 - - - - 226 

BurreU v. Dodd, 3 B. & P. 378- - - - 6, 118 

Burridge v. Sussex (Earl of), 2 Ld. Baym. 1292 - - - 326 

Bury, Price v., 2 Dr. 11 82 

Bush V. Locke, 3 C31. & F. 721 ; 9 Bli. N. S. 1 - - - 135 

Butler V. Archer, Owen, 152 - - - - - 201 

Butler V. Lightfoot, 3 Leon. 239 - - - - . 54 

Byron, Hall v., 4 Oh. Div. 667 ; 46 L. J. N. S. Oh. 297 ; 36 L. 
T. N. S. 367 ; 25 W. E. 317 - - - - 274, 307 



0. 

Oaaear, Mason v., 2 Mod. 65 - - - - - 263 

Oage, Smithson v., Oro. Jac. 526 - - - - - 56 

Oalcraft v. Boebuck, 1 Yes. jun. 221 - - - - 78 

Oaldecott, Ely (Dean and Ohapter) v., 8 Bing. 430; 1 Moo. & 
8c. 633 ; IX. J. N. 8. 0. P. 131 - - - 177, 186 

Caldwall v. Bayliss, 2 Mer. 408 - - - - - 226 

Oaledonian Bailway Oo., Lowther v., (1892) 1 Oh. 73; 61 L. J. 
N. 8. Oh. 108 ; 66 L. T. N. S. 62 ; 40 W. E. 225 - 194, 195, 419 

CUloway, Doe d. Priestley v., 6 B. & 0. 484 ; 9 D. & By. 518 - 347 

Oahnady v. Bowe, 6 0. B. 861 328 

Gamden (Lord), Garrick v., 2 Oox, Oh. Oas. 231 - - - 196 

Oamroux, Moulton v., 4 Exch. 17 - - - - 55 

Oannington {or Ounington), Hayward v., 2 Keb. 290, 311; 1 
Sid. 354 255, 259 

Oann's Estate, In re, 19 L. J. N. 8. Oh. 376 ; 15 Jur. 3 - 110 

Cannon v. Park, 2 Eq. Oas. Abr. 226 - - . - 66 

Canterbury (Archbishop of), Ex parte, 1 Coll. 154 - - 404 

Cape V. Scott, L. E. 9 Q. B. 269 ; 43 L. J. N. 8. Q. B. 65; 30 
t. T. N. 8. 87 ; 22 W. E. 326 - - - 252, 266 

Capper, Bex v., 5 Price, 217 - - - - - 12 

Car V. Ellison, 3 Atk. 73 - - - - 60, 73, 314 

Carew's Case, Moo. 147 - - - - - - 49 

Carnarvon (Earl of) v. Yillebois, 13 M. & W. 313 ; 14 L. J. K. 8. 
Ex. 233 337 

Came v. Lanyon, 2 Wms. Saund. 165 ; 1 Ley. 294 ; 1 Yent. 91 ; 
1 Sid. 437; 2 Eeb. 505 - - - - 198, 199 

Carpenter, Lowe v., 6 Exch. 825 - - - - - 285 

Caxr V. Foster, 3 Q. B. 581 ; 2 G. & D. 753; 6 Jur. 837 - 344 



XXn TABLB OF CASES. 

PA.QK 

Oarr v. Lambert, L. B. 1 Ex. 168 ; 4 H. & 0. 257 ; 35 L. J. 
N. S. Ex. 121 ; 12 Jur. N. S. 194; 13 W. E. 499 - 261, 270. 271 

Oarr v. Singer, 2 Ves. 603 27 

Oarrill V. Baker, 1 Brownl. 227 . - - - 276 

Carter v. Carter, 3 K. & J. 617 - - - - - 59 

Carter, Kempe v., 1 Leon. 56 - - - - - 131 

Carter v. Sebright, 26 Beav. 374; 28 L. J. N. S. Ch. 411 ; 6 
Jut. N. S. 286 ; 7 W. E. 226 189 

Carvel, Weeks v., Noy, 106 - - - - - 136 

Cattley v. Arnold, 4 K. & J. 696 - - - - 10, 360 

Cave, Musgrave v., Willes, 319 - 16, 17, 247, 266, 268 

Cavendish, Howard v., Cro. Jac. 621 - - - - 169 

Chadwick, Mosley v., 7 B. & C. 47, n - - - - 246 

Chalener, Hedd v., Cro. Eliz. 149 - - - - - 198 

Challoner v. Murhall, 2 Yes. jun. 624 - - -27, 166, 368 

Chambers, Att.-Gen. v., 4 De G. M. & G. 206 ; 23 L. J. N. S. 
Ch. 662 ; 18 Jnr. 779 328 

Chance, Hanmer v., 4 De G. J. & S. 626; 34 L. J. N. S. Ch. 
413; 11 Jur. N. S. 397; 13 W. E. 666; 12 L.T. N. S. 163 -236, 

237, 328, 338, 340 

Channen, Bunn v., 6 Taunt. 244 - - - 266, 262 

Chantrell v. Eandall, 1 Lev. 20 - - - - 169, 221 

Chaplin v. Chaplin, 3 P. Wms. 229 - - - - 161 

Chaplin, Eatdifle v., 4 Leon. 242 - - - - - 134 

Chapman v. Chapman, March, 64 - - - - 133 

Chapman, Clothier v., 14 East, 331, n. - - - - 331 

Chapman v. Pendleton, 2 Brownl. 293 - - - 199, 204 

Chapman v. Sharpe, 2 Show. 184 - - - - - 201 

Chapman's Case, 2 Eolle's Eep. 366 - - - - 134 

Charlesworth, Homcastle v., 11 Sim. 316; 18 L. J. N. S. 
Ch. 36 118 

Cheesman v. Hardham, 1 B. ft Aid. 706 - - - 291 

Cheshunt College, In re, 3 W. E. 638 ; 1 Jur. N. S. 996 - - 110 

Chester, Benson t;., 8 T. E. 396 - - 16, 269, 270, 283 

Chetwode v. Crew, Willes, 614 - . - 197, 300 

Chichester (Earl of) v. Hall, 17 L. T. 121 - 214, 216, 218, 337 

Chilton V. London (Corporation of), 7 Ch. Div. 662, 735 ; 47 
L. J. N. S. Ch. 433 ; 38 L. T. N. S. 498 ; 26 W. E. 474 - 261 

Chorley, Eeg. v., 12 Q. B. 616; 12 Jur. 822 - -270, 271 

Christchuroh (Dean and Chapter of) v, Buckingham (Duke of), 
17 C. B. N. S. 391 ; 33 L. J. N. S. C. P. 322; 10 Jur. N. S. 
749 ; 10 L. T. N. S. 675 ; 12 W. E. 986- - - 12, 49 

Clapham, Holdfast d. Woolhuns v., 1 T. E. 600; 4 Burr. 
1952 63, 69 

Clark, Blunt v., 2 Sid. 37, 61 - - - - 70, 139 



TABLB OF CSASB8. ZZIU 

PAoa 
Clark, Doe d, Spencer v., 6 B. & Aid. 458 - - - 26 

Clarke V. Arden, 16 0. B. 227; 3 Com. Law Bep. 781 ; 24 L.J. 
N. S. 0. P. 162 ; 1 Jut. N. S. 710 - - - 36, 230 

Clarke v. Pennifather, 4 Bep. 23 b - 47, 48, 74, 148, 149 

Clarke, Tyseen v., 3 Wils. Ml - - - 280, 282, 284 

Clarkaon, Morris v,, 3 Swan. 558 - - - - - 182 

Clarkson v. Woodhouse, 3 Dong. 189 ; 5 T. B. 412, n. 284, 339 

Clay, WentworfJi (Lady) v., Cas. temp. Fmch, 263 - 280, 281, 306, 

308 
Clayton v. Cooke, 2 Atk. 449 - . - - - 190, 228 

Clayton v. Corby, 5 Q. B. 415 ; D. & M. 449 ; 14 L. J. N. S. 
a B. 364 ; 8 Jnr. 212 259 

dement v. Scudamore, 1 P. Wms. 63 ; 6. Mod. 120 - 128, 130, 134, 

141, 144, 146, 167 

Clements, Doe d. Folkee, 2 M. & S. 68- - - - 226 

Clench v. Cadmore, Lutw. 371 ; 3 Ley. 395 - - - 169 

Clerk, Cowper v., 3 P. Wms. 156 - - - - 176 

Clifford, Morley v., 20 Cb. Div. 753 ; 51 L. J. N. S. Cb. 687 ; 
46 L. T. N. S. 561 ; 30 W. B. 606 - - - 249, 266 

Clift, Doe d. Hamilton v., 12 A. & E. 566; 4 P. & D. 679 - 74, 

134, 149, 157 

Clifton V. Molinenx, 4 Bep. 27 a - - - - 301 

Cbde, Addington v., 2 W. Bl. 1030 - - - - 315 

Clotbier v. Cbapman, 14 East, 331, n. - - * - 331 

Coggan, Bex v., 6 East, 431 ; 2 Smitb, 417 - - 72, 182 

Coke, Cresswell v., 2 Leon. 8 ; Dyer, 351 b - - - 203 

Colebrooke v. Elliott, 3 Burr. 1859 - - • - 301 

Collier, Long v., 4 Bnss. 267 - - - - - 76 

Collier v. Tbiryeton, Cby. Cas. 48 - - - - 308 

Collins, Eddleston v., 3 De G. M. & G. 1 ; 22 L. J. N. S. Cb. 
480 ; 16 Jur. 790 ; 17 Jnr. 331 - - - 56, 81, 310 

Collingwood's Trusts, Li re, 6 W. B. 536 - - - - 74 

Collinson, Compton v., 1 H. Bl. 334 - - - - 168 

Colman, Locke v., 1 Myl. & Or. 423; 2 Myl. & Cr. 42, 635 - 144 

Combe's Case, 9 Bep. 75 a - - - - 57, 70, 196 

Compton V. Collinson, 1 H. Bl. 334 - - - - 168 

Coney's Case, Godb. 122* - - - - - 263 

Constable's (Sir Henry) Case, 5 Bep. 106 a - - 12, 242 

Cook, Idle v., 1 P. Wms. 70 ; 2 Salk. 620 ; 2 Ld. Baym. 1144 ; 

11 Mod. 57 62 

Cooke, Clayton v., 2 Atk. 449 - - - - 190, 228 
Cooke, Jeans v., 24 Beay. 513 ; 27 L. J. N. S. Cb. 202 ; 4 Jar. 

N. S. 67 41 

Cooke, Searle v., 43 Cb. Diy. 519; 59 L. J. N. S. Cb. 259; 62 
L.T. N. S. 211 ... - 228,400,417,560 



XXIY TABLB OF CA0B8. 

PAOB 

Oookee, Wynne v., 1 Bro. C. 0. 516 - - - - 365 

Goombes, Doe d, Warwick v., 6 Q. B. 535; 14 L. J. N. S. 
aB. 37; 8Jup. 1166 72 

Coombs, Naah v., L. E. 6 Eq. 51 ; SI L. J. N. S. Ch. 600; 16 
W. E. 663 - - - - - - - 293 

Cooper, Aldrich v., 8 Ves. jun. 382 - - - - 66 

Cooper V. Emery, 1 Phill. 388; 10 Sim. 609 - - - 77 

Cooper V. France, 19 L. J. N. S. Ch. 313 ; 14 Jur. 214 - - 144 

Cooper V. Jones, 25 L. J. N. S. Ch. 240 ; 2 Jur. N. B. 59 - 99 

Cooper V. Marshall, 1 Burr. 259 ; 2 Ld. Ken. 1 ; 1 Wils. 51 - 261, 

263, 273, 275 

Cooper V. Norfolk *Eail. Co., 3 Ex. 546 ; 6 Eail. C. 94 ; 18 L. J. 
N. S. Ex. 176; 13 Jur. 195 - - - 107, 323, 420 

Cope, Gloyer v., 1 Salk. 185; 3 Lev. 326; 4 Mod. 80; Cartii. 
205; Comb. 115; Holt, 159; Skin. 226 - - - 74, 123 

Coppin, Dillon v., 6 Bear. 217, n. - - - - 118 

Corbett, Eeg. v., 1 E. & B. 836;. 22 L. J. N. S. Q. B. 335; 17 
Jur. 1024 61, 73, 90, 183 

Corby, Clayton v., 5 Q. B. 415; D. & M. 449; 14 L. J. N. S. 
a B. 364; 8 Jur. 212 259 

Corke, Barnes v., 3 Ley. 308 - - - - - 185 

Comhill, Paulter v., Cro. Eliz. 361 - - - - 167 

Corp, Drove v., 9 Ves. jun. 368 - - - - - 78 

Costard v. Wingfield, 2 Leon. 44 - - - - 257 

CotteriU, Eex v., 1 B. & Aid. 67 244 

Cotton, Wiseman v., 1 Sid. 135 - - 9, 127, 158, 327 

Coventay, Case of, Yearb. Trin. 15 Edw. IV. fos. 29, 32 b - 260 

Cowlam V. Slack, 15 East, 108 259 

Cowling, Doe d. Ibbot v., 6 T. E. 63 - - - - 84 

Cowper V. Clerk, 3 P. Wms. 156 176 

Cowper, Gittens v., 2 Brownl. 217 - - - - 224 

Cox, Aylesv., 16Beav. 23- - - - - . 78 

Cox, Ayles v., Ex parte Attwood, 17 Beay. 584 - - 99 

Cox V. BLigford, 2 Vem. 664 - - - - - 223 

Crabb v. Beyis, cited 1 EoUe's Bep. 48- - - - 173 

Oraohroode, Foiston v., 4 Eep. 31 b - - -249, 255 

Crease v. Barrett, 1 C. M. & E. 919 - - - - 330 

Cresswell v. Coke, 2 Leon. 8 ; Dyer, 351 b- - - - 203 

Crew, Chetwode v., Willes, 614 - - ^- 197, 300 

Crisp, Doe d. Taylor v., 8 A. & E. 779 ; 1 P. & D. 37 - - 149 

Crisp V. Fryer, Cro. Eliz. 505 - - - - - 230 

Crogate v. Morris, 2 Brownl. 146 - - - - - 264 

Cromwell (Lord), Tavemer v., Cro. Eliz. 353 ; 4 Eep. 27 a - 69, 305 

Croome v. Qtdse, 4 Bing. N, C. 148 ; 5 Scott, 453 ; 3 Hodges, 
277 210 



TABLE OF CASB8. XXV 

PAoa 
Cioeby v. Fortescue, 5 Dowl. 273 - - - - 28, 29 

Croese v. Lawienoe, 9 Hare, 462 - - - - 76 

Cxowder v. Oldfield, 6 Mod. 19; 1 Salk. 170 - - 269, 357 

down's Mortgage, In le, L. B. 13 Eq. 26; 41 L. J. N. S. Oh. 
82 - - 74,79,97 

Ooddon V. Morley, 7 Hare, 202 - - - - - 227 

Guddon v. Tite, 1 Qiff. 395 196 

Codmore, Clench v., Lutw. 371 ; 3 Lev. 395 - - - 169 

Cuming, In re, L. E. 6 Ch. 72; 21 L. T. N. S. 739 - 74, 98 

Cnnningham, Thnistout d. Qower v., 2 W. BL 1046 - . 83 

Cunynghame, Bose v., 11 Yes. jnn. 550 - - - 67 

Curling v. Austin, 2 Dr. & Sm. 129 - - . . 76 

Curtis V. Curtis, 2 Bro. Ch. Cas. 620 - - - - 163 

Curtis V. Daniel, 10 East, 273 - - - - - 236 

Curtis V. Scales, 14 M. & W. 444 ; 14 L. J. N. S. Ex. 318 - 179, 196 

Curzon v. Lomaz, 5 Esp. 60 - - - - 10, 248, 327 

Cuthbert v, Lempriere, 3 M. & S. 158 - - . - 60 

Cutler, Snow v., 1 Eeb. 567 - - - - - 345 



D. 

Dalbiao, Zouche (Lord) v., L. B. 10 Ex. 172 ; 44 L. J. N. S. 
Ex. 109 ; 33 L. T. N. S. 221 ; 23 W. B. 564- - 215, 218 

Dalby, Hartop v., Hetl. 14 10 

Damerell v. Piotheroe, 10 Q. B. 20 ; 16 L. J. N. S. Q. B. 170; 
llJur. 331 6,200 

Dangee v. Pateson, 1 Keb. 287 .... 153 

Daniel, Curtis v., 10 East, 273 236 

Daniel v. Hanslip, 2 Lev. 67 - - - - 255, 262 

Daniel v. Wilkin, 7 Ex. 429 332 

Daniels v. Davison, 16 Yes. jun. 249 - - - - 78 

Danvers, Doe d. Cook v., 7 East, 299 ; 3 Smith, 291 - - 324 

Daiey (Lord) v. Askwith, Hob. 234 - - - 225, 227 

Daro, Haxton v., 10 B. & C. 17 335 

Darrell v. Bridge, 1 W. Bl. 46 336 

Dayidson v. Moscrop, 2 East, 56 - - - - - 302 

Dayies v. Beversham, 2 Freem. 157 - - - 64, 91 

DaTies v. Selby, Cro. Eliz. 825 161 

Dayies v. Williams, 16 a B. 546; 20 L. J. N. S. Q. B. 330; 
15 Jur. 752 260, 264 

Dayiee's Case, Cro. Eliz. 611 242 

Dayis, Bennett v., 2 P. Wms. 316 168 

Dayison, Daniels v., 16 Yes. jun. 249 - * - - 78 



7LXYI TABLB OF CASES. 

DaTiBon, HairiB v., 15 Sim. 128 - - - - - 326 

Dawson v. Biinckmaii, 3 Mac. & G. 53 - - - 76 

Day, Spooner v., Cro. Car. 432 ; .W. Jon. 375 - - - 247 

De BeauYoir, Owen v., 16 M. & W. 647 ; 5 Exch. 166 (Ex. 
Oh.) 214, 216, 217 

Degge, Ex parte, 4 Bro. 0. 0. 235, n. - - - - 71 

Delacherois v. Delacherois, 11 H. L. Oas. 62 ; 13 W. B. 24 ; 
10 L. T. N. S. 884; 4 N. B. 601 - - 10, 13, 301, 302 

De la Warr (Earl) v. Miles, 17 Oh. Diy. 635 ; 50 L. J. N. S. Oh. 
754 ; 44 L. T. N. S. 487 ; 29 W. B. 809 - 19, 250, 265, 343, 344 

Dendy, Beg. v., 1 E. & B. 829 ; B. 0. 0. Ill ; 22 L. J. N. S. 
a B. 39, 247 ; 17 Jur. 970 - , - - - 72, 160 

Denham, Barker v.. Sty. 145 - - - - 139, 151 

Denn d. Goodwin v. Spray, 1 T. B. 466 - 126, 134, 339 

Denne, Walker v., 2 Ves. jun. 170 - - . - 221 

Denny v, Lemman, Hob. 135 ----- 175 

Derby (Earl), NaA v., 2 Vem. 537 - - - - 223 

DereniBh v. Baines, Oh. Pr. 3 ; 2 Eq. Oas. Abr. 43, pi. 4 - 79 

Devey, Taylor v., 7 A. & E. 409 - - - - 336 

DeTonshire (Duke of) v. Lodge, 7 B. & 0. 36 - - - 239 

Devonshire JDnke of) v. 0*Oonnor, 24 Q. B. Div. 468 ; 59 L. J. 
N. S. a B. 206 ; 62 L. T. N. S. 917 ; 38 W. E. 420- - 240 

Dibben v. Anglesea (Marquis), 2 Or. & M. 722 ; 4 Tyr. 926 - 296 

Dibley, Bullock v., 4 Eep. 23 a ; Moo. 596 ; Poph. 38 - 66, 149 

Dickens v. Shaw, Hall, Sea Shore (ed. 1875), App. - - 242 

Dickenson, Bex v,, 1 Wms. Saund. 135 - . - 302 

Dickman v. Allen, 2 Yentr. 138 - - - - - 246 

Dickson's Oase, Hetl. 64 - - - - 9, 127, 242 

Dilliston (Dillington), King v., 3 Mod. 221 ; 1 Salk. 386 ; 1 
Freem. 494; Oarth. 41 ; Oomb. 118 - 67, 80, 154, 177, 178 

Dillon v. Ooppin, 6 Beay. 217, n. - - - - 118 

Dimes v. Arden, 6 N. ft M. 494 - - - - - 334 

Dimes v, Ghrand Junction Oanal Oo., 3 H. L. 0. 794; 17 Jur. 
73 (H. LO ; 9 Q. B. 469 ; 5 Bail. 0. 34 ; 16 L. J. N. S. a B. 
107 ; 11 Jur. 429 (Ex. Oh.) - - - 96, 110, 124 

Dimes, Grand Junction Oanal Oo. v., 16 Sim. 402 ; 17 L. J. 
N. S. Oh. 206 ; 2 Jur. 886 - - - - 96, 188 

Dimes, Morris v., 1 A. & E. 654 - - - - - 239 

Dixon V. James, 1 Freem. 273 ----- 276 

Dixon, Leoonfield (Lord) v., L. B. 3 Ex. 30; 37 L. J. N. S. Ex. 
33; 17 L. T. N. S. 288 ; 16 W. B. 167 - - - - 240 

Dixon, Stammers v., 7 East, 200 ; 3 Smith, 261 - 15, 329 

Dixwell, Boberts v., 1 Atk. 607 - - - - - 140 

Dodd, Buirell v., 3 B. & P. 378 - . - 6,118 

Doe d. Andrew v. Hutton, 3 B. t& P. 643 - - - - 143 



«• 



TABLB OF CA0B8. XXVU 

PAOB 

Doe d. Baoon v. Brydges, 6 M. & Gr. 282 . . 9, 327 

Doe d. Beck v. Heakin, 6 A. ft E. 495 ; 2 N. & P. 660 - - 328 

Doe d. Beimiiigton v. Hall, 16 East, 208 - - 313, 346 

Doe d. Blackeell v. Tomkins, 11 East, 185 - - 53, 62, 84, 148 

Deed. BoTor v. Traeman, 1 B. & Ad. 736; 9 L. J. E. B. 119 

152, 224, 505 

Doe d. Btirgeas v. Thompabn, 5 A. & E. 532 ; 1 N. & P. 215; 
2 H. & W. 451 ; 6 L. J. N. S. K. B. 57 - - - 70 

Doe d. Burrows v. Freeman, 12 M. & W. 844 ; 1 G. & K. 386; 
14 L. J. N. S. Ex. 142 346 

Doe d. Carlisle v. Towns, 2 B. ft Ad. 585 ; 9 L. J. K. B. 278 - 51 

Doe d. Cawthom v. Mee, 4 B. & Ad. 617 ; 1 N. & M. 424 - - 346 

Doe d. COayton v. Williams, 11 M. & W. 803; 12 L. J. N. B. 
Ex.429 10 

Doe d. Ck>ok v, Danyers, 7 East, 299 ; 3 Smith, 291 - - 324 

Doe d. Dand v, Thompson, 13 Q. B. 670 ; 18 L. J. N. S. Q. B. 
326 63, 74, 149 

Doe d. Danson v. Parke, 4 A. ft E. 816 - - - - 51 

Doe d. Dormer v. Wilson, 4 B. & Aid. 303 - - - 62 

Doe d, Dnnrayen t^. Williams, 7 0. & P. 332 - . - 248 

Doe d. Eyans v. Eyans, 5 B. & C. 584 ; 8 D. & By. 399 - 224 

Doe d. Eyans v. Walker, 15 Q. B. 28 ; 19 L. J. N. S. Q. B. 293 - 348 

Doe d. Folkes v. Clements, 2 M. & S. 68 - - - 226 

Doe d. Forster v. Sisson, 12 East, 62 - - - - 339 

Doe d. Garrod v. OUey, 12 A. & E. 481 ; 4 P. & D. 275 - 346 

Doe d. Gibbon v. Potts, 2 Dougl. 710 - - - - 351 

Doe d. Grabb v. Burlington (Earl of), 5 B. & Ad. 507 ; 2 N. & 
IL 534 ; 3 L. J. N. S. E. B. 26 - - - - 226 

Doe d, Hamilton v. Clift, 12 A. & E. 566; 4 P. & D. 579 - 74, 

134, 149, 157 
Doe d, Harman v, Morgan, 7 T. B. 103 - - - 80 

Doe d. Hughes v. Lakin, 7 C. & P. 481 - - - - 335 

Doe d. Ibbot v. Cowling, 6 T. B. 63 - - - - 84 

Doe d. Einglake v. Beyiss, 7 C. B. 456 ; 18 L. J. N. S. C. P. 128 16 
Doe d. King Wm. IV. v. Roberts, 13 M. & W. 520 - - 334 

Doe d. Le Keux v. Hanrison, 6 Q. B. 631 ; 14 L. J. N. S. Q. B. 
77 ; 9 Jur. 104 153 

Doe d. Lempiiere v. Martin, 2 W. Bl. 1148 - - - 34 

Doe d. Mason v. Mason, 3 Wils. 63 - - 237, 338 

Doe d. Milner v. Brightwen, 10 East, 583 - 94, 149, 167, 168 
Doe d. Molesworth v. Sleeman, 9 Q. B. 298; 15 L. J. N. S. Q. 
B. 338; 10 Jur. 568 - - - - - - 329 

Doe d. Nepean v. Budden, 5 B, & Aid. 626 ; 1 D. & By. 243 - 162 
Doe d. Nepean v. Goddard, 1 B. & C. 522 ; 2 D. & By. 773 - 33 
Doe d. Netheroote v. Bartle, 5 B. & Aid. 492; I D. & By. 81-84 



• •• 



XXTUl TABLE OF CA8B8. 

PAOB 

Doe d. Norfolk (Duke of) v. Sanders, 3 Doug. 303 - - 161 

Doe d, Norih v. Webber, 5 Scott, 189 ; 3 Hodges, 203 - - 63 . 

Doe d. Nniin v. Lnfkin, 4 East, 221 ; 1 Smith, 90 - - - 230 

Doe d. Perry v. Wilson, 6 N. & M. 809 - - - 148 

Doe d. Priestley v. Oalloway, 6 B. & C. 484; 9 D. & By. 518 - 347 

Doe d. Bayer v. Strickland, 2 Q. B. 792 ; 2 G. & D. 278 ; 11 L. 
J. N. S. a B. 306 48, 211 

Doe d. Beay v. Huntington, 4 East, 271 - - 6, 61, 324, 358 

Doe d. Biddell v. Chnnnell, 1 Q. B. 682 - - - 161 

Doe d, Boberts v. Whitaker, 3 N. & H. 226 - 204, 803 

Doe d. Bobinson v. Bousfield, 6 Q. B. 492 ; 1 C. & E. 668 ; 14 
L. J. N. S. a B. 42; 8 Jur. 1121 - - . 36, 230 

Doe d. Bust v. Boe, 2 Burr. 1046 - - - - - 326 

Doe d. Shelton v. Sbelton, 3 A. & E. 266 ; 4 N. & M. 867 - 66 

Doe d. Shewen v. Wroot, 6 East, 132 ; 1 Smith, 363 . . 79 

Doe d. Spencer v. Clark, 6 B. & Aid. 468 - - - 26 

Doe d. Tarrant v. Hellier, 3 T. B. 162 - 161, 162, 163, 166, 182, 

219, 222, 223, 224 

Doe d. Taylor v. Crisp, 8 A. A E. 779 ; 1 P. & D. 37 - - 149 

Doe d. Tofield v. Tofield, 11 East, 246 - - - 62, 64, 69 

Doe d. Tresidder v. Tresidder, 1 Q. B. 417 ; 1 G. & D. 70 ; 10 
L. J. N. S. Q. B. 190 ; 6 Jur. 931 - - - 36, 230 

Doe d. Tunstill v. Bottriell, 6 B. & Aid. 131 - - - 66 

Doe d. Twining v. Musoott, 12 M. & W. 832 ; 14 L. J. N. S. 
Ex. 186 162, 176, 182 

Doe d, Yemon v, Yemon, 7 East, 8; 3 Smith, 6 - 64, 68 

Doe d. Warwick v. Coombes, 6 Q. B. 636 ; 14 L. J. N. S. Q. B. 
37; 8 Jur. 1166 72 

Doe d. Wheeler v. Gibbons, 7 C. & P. 161 - - - - 69 

Doe d, Whitbread v. Jenney, 6 East, 622 ; 2 Smith, 116 - 73, 163, 186 

Doe d. Wightwick v. Truby, 2 W. Bl. 944 - - - 27 

Doe d. Winder v. Lawee, 7 A. & E. 196 ; 2 N. & P. 196 ; 
W. W. & D. 484 ; 7 L. J. N. S. a B. 97 - - 73, 183 

Doe d. Wood v. Morris, 2 Taunt. 62 - - - - 229 

Douglas v. Dysart (Earl of), 10 C.B.N.S. 688; 6L.T.N.S.327 177 

Dowdswell, Baxter v., 2 Ley. 138 - - - 136, 139 

Dowell, Schwinge v., 2 F. & F. 846 - - - - 282 

Down V. Hopkins, Cro. Eliz. 323 ; 4 Bep. 29 b - 42, 308 

Downe, Bivet v., 2 Brownl. 279 - - - - - 211 

Downe (Yisot.) v. Morris, 3 Hare, 394 ; 3 L. J. N. S. Ch. 337 ; 

8 Jur. 486 222 

Downes, Bartlett v., 3 B. & C. 616; 6 D. & By. 626 ; 1 C. & 
P. 622 ; 3 L. J. K. B. 90 308 

Downing College, Camb. (Master of). Flack v., 13 C. B. 946 ; 22 
L. jTN. S. C. P. 229 - - . - 61,81 



TABLE OF CASES. ZZIX 

PAOS 

DowDmgham'B Case, Owen, 17 - - - - • 230 

Diewe r. Corp, 9 Yes. jun. 368 - - - - 78 

Driyer d. Berry v, Thompson, 4 Taunt, 294 - - 66, 60 

Brory, Buddngham (Earl of) v., 3 Bro. P. C. 492 - - 164 

Dmry v, Kent, Cro. Jac. 14 - - - - - 262 

Dnuy V. Man, 1 Atk. 95 - - - - - 184 

Dmry v. Moore, 1 Stark. 102 - - - • - 283 

Dmry, Sands v., Cro. Eliz. 814 - - - - 16 

Dnberley v. Page, 2 T. B. 891 - - 250, 275, 277, 279, 280 

Dudley (Earl of), Beg. v., a B. Diy. June, 1884 - - 88, 188 

Dudley (Yisct), St Paul v., 15 Ves. jun. 167 - - 351, 352 

Dugworth V. Badford, W. Jon. 462 - - - - 351 

Duleep Singh, Bobinson v., 11 Ch. Diy. 798; 48 L. J. N. S. 
Ch. 758 ; 39 L. T. N. S. 313 ; 27 W. B. 21 - 246, 247, 274, 279 

DuUingham Manor (Lady of), Beg. v., 8 A. & E. 858; 1 P. & D. 
172 ; 1 W. W. & H. 865 185 

Dumpor's Case, 4 Bep. 119b ; Cro. Eliz. 815 - - - 139 

Dunn v. Green, 3 P. Wms. 9 - - - 27, 165, 358 

Dunrayen (Earl of) v. Llewellyn, 15 Q. B. 791 ; 19 L. J. N. S. 
a B. 388; 10 Jur. 1089 ... 251, 259, 330, 331 

Dunstan v. Treedder, 5 T. B. 2 272 

Dunwich (Bailiffs of) v. Sterry, 1 B. & Ad. 831 - .243 

Durham (Bishop of) v. Bippon, 4 L. J. Ch. 32 - - - 228 

Dyer, Brown v., 11 Mod. 73 ; Holt, 165 - - - 68 

Dyer v. Dyer, 2 Cox Ch. Cas. 92 - - - 23, 42, 44 

Dysart (Earl of), Douglas v., 10 C. B. N. S. 688; 6 L. T. 
N. 8. 327 177 



E. 

Eaidly V. Granville, 3 Ch. Diy. 826 ; 45 L. J. N. S. Ch. 669 ; 
24 W. B. 528 ; 34 L. T. N. S. 609 - - - - 232 

East V. Harding, Cro. Eliz. 498 .... 224 

Ebum, Phypers v., 3 Scott, 634 ; 3 Bing. N. C. 250 ; 2 Hodges, 
230; 6 L. J. N. S. C. P. 20 185 

Ecclesiastical Commissioners for England, Forbes v., L. B. 15 
Eq. 51 ; 42 L. J. N. S. Ch. 97 ; 27 L. T* N. S. 511 ; 21 W. 
B. 169 298 

Ecdesiastioal Commissioners for England v. London & S. W. 
Bafl. Co., 14 C. B. 743; 2 Com. Law Bep. 1797; 23 L. J. 
N. S. C. P. 177 ; 18 Jur. 911 - - - 107, 194 

Eddleston v. Collins, 3 De G. M. & G. 1 ; 22 L. J. N. S. Ch. 
840; 17 Jur. 331; 16 Jur. 790 ... 56,81,310 

Edwards, Brecon (Mayor of) v., 1 H. & C. 51 ; 31 L. J. N. S. 
Ex. 368- 245 



XXZ TABLE OT CASES. 

PAOB 

Edwards v. Fidel, 3 Madd. 237 .... 42 

Edwards, Lee v., 1 Brownl. 173 - - - - - 269 

Edwards v. Moseley, Willes, 192 - - - - 200 

Egleton's Case, 2 Bo. Abr. 40 169 

EUiott, Oolebrooke v., 3 Burr. 1869 - - - - 301 

Elliott, Heath v., 4 Bing. N. G. 388; 6 Scott, 172; 1 Am. 
170 262 

EUiott v. Inoe, 7 De G. M. & G. 476 - - - - 65 

EUiott, Mardiner v., 2 T. E. 746 ... 161,236 

EUis, Arlett v., 7 B. & 0. 346; 9 D. & By. 897; 9 B. & 0. 
671 ; 6 L. J. K. B. 391 - 14, 263, 272, 276, 279, 280, 283, 307 

EUis V. Bridgnorth (Mayor, &c. of), 16 G. B. N. S. 62 - 244 

EUis, Grant v., 9 M. & W. 113; 11 L. J. N. 8. a B. 228- - 214 

EUis V. Bowles, WUles, 638 276 

EUison, Car v., 3 Atk. 73 - - - - 60, 73, 314 

Elph, Stacey v., 1 Myl. & K. 196 - - - - 91 

Elston V. Wood, 2 Myl. & K. 678 - - - 314, 347' 

ElweU, Wainewright v., 1 Madd. 627 - - - 64, 91 

Ely (Dean & Chap, of) v. Oaldecott, 8 Bing. 439; 1 Moo. 
& Sc. 633 ; 1 L. J . N. S. 0. P. 131 - - 177, 186 

Ely (Dean & Chap, of) v. Warren. 2 Atk. 189 227, 260, 272, 343 

Emery, Cooper v., 1 PhUl. 388 ; 10 Sim. 609 - - - 77 

Emerson, Att.-Gen. v., (1891), App. Gas. 649; 61 L. J. N. S. 
Q. B. 79 ; 66 L. T. N. S. 664 - - - - 12, 16 

Emson v. Williamson, 1 Bo. Abr. 933 - - - - 367 

Erbery v, Latton, 1 Leon/ 190 - - - . - 308 

Eton GoUege, Beg. v., 8 a B. 626 - - - 62, 187, 322 

Eyans v, Browne, 6 Beay. 114; 11 L. J. N. S. Ch. 349; 6 Jur. 
380 222 

Eyans, Doe d. Eyans v., 6 B. & C. 684 ; 8 D. & By. 399 - - 224 

Evans, Petty v., 2 Brownl. 40 - - - - - 36 

Eyans v. Bees, 10 A. & E. 161 ; 2 P. & D. 626 - - - 332 

Evans, Beg. v., 1 Q. B. 366, n. - - - - 72 

Evans v, Taylor, 7 A. & E. 617 - - - 332, 333 

Eyans v, Upsher, 16 M. & W. 676; 16 L. J. N. S. Ex. 

186 187, 323 

Eve, Bumney v., 1 Leon. 100 - - - - - 164 

Ever {or Ewer) v. Aston {or Astwicke), Moo. 271 ; 1 And. 
192 167 

EveraU v. SmaUey, 1 WUs. 26 ; 2 Stra. 1197 - - - 27 

Everdon Manor (Lords of). Beg. v., 16 L. J. Q. B. N. S. 18 - 187 

Everest v. Glyn, 6 Taunt. 426 ; 2 Marsh. 84 ; Holt, 1 - 317, 320 

Everingham v. Ivatt, L. B. 8 Q. B. 388 ; L. B. 7 Q. B. 683 ; 
42 L. J. N. S. Q. B. 203 ; 28 L. T. N. S. 672 ; 21 W. B. 
962 23, 191 



TABLE 07 CASES. XXXI 

PAOE 

Ewart V. Qraham, 7 H. L. Cas. 331 ; 29 L. J. N. S. £z. 849 ; 
5 Jtit. N. S. 773; 7 W. E. 621 240 

Ewelme Hospital, Att-Gen. v., 17 Beay. 366; 22 L. J. N. 8. 
Ch. 846 - - - - - - - 13 

Exeter (Earl of) v. Smith, Garter, 177 - - - - 302 

Eyre, Bradahaw v., Oto. Eliz. 570 - - - 268, 269 

Falmouth, Anmdel (JIbc.) v., 2 M. & S. 440 - - - 274 

Fane v. Barr, cited 1 Salk. 243; 6 Mod. 120 - - - 130 

FareleT's Case, Gro. Jac. 36 - - - 160, 165 

Farmor v. Hunt, Willes, 638 - - - - - 276 

Faulkner, Morse v., 1 Anst. 11 - - - - - 182 

Fawlkner v. Fawlkner, 1 Yem. 21 ; 1 Eq. Cas. Abr. Il9 - 353 

Fawoet v. Lowther, 2 Ves. 300 - - - 68, 139, 184 

Fawcet, Scott v., Dick. 299 - - - - - 118 

Fawoett v. Strickland, WiUes, 57 - - - -277, 278 

Fawkes, Arthington v., 2 Yem. 356 - - - - 267 

Feaver, Mathews v,, 1 Cox, Ch. Cas. 278 - - - 66, 123 

Fermor's Case, 3 Bep. 77 a - - - - - 125 

Fererell, Smith v., 2 Mod. 6 - - - -259, 264 

Fidel, Edwards v., 3 Madd. 237 - - - - 42 

Finch, Pitdiam v., 1 Bo. Abr. 374- - - - - 190 

Fmch's (Sir Moyle) Case, 6 Bep. 63 a - - - 10, 11 

Firebrass d. Symee v. Pennant, 2 Wils. 254 - - - 49 

Fisher v. Lane, 2 W. Bl. 834 - ^ - - - 348 

Fisher v. Wigg, 1 P. Wms. 14 - - - - 62, 182 

Fitch V. Stuckley {or Hockley), 4 Bep. 23 a ; Cro. Eliz. 442 - 54, 

73, 83, 186 

Fitcham v. Finch, 1 Bo. Abr. 374 - - - - 190 

Flack V. Downing CoUege, Camb. (Master of), 13 C. B. 945 ; 22 
L. J. N. 8. C. P. 229 51,81 

Flitcroft, In re, 1 Jur. N. S. 418 - - - - 99 

Flower v, Hartopp, 6 Beay. 476 - - - - - 76 

Foiston V, Crachroode, 4 Bep. 31 b - - - 249, 255 

Folkard v. Hemet {or Hemmett), 2 W. Bl. 1061 ; 5 T. B. 
417, n. - - - - - 273, 280, 31.5 

Follet V. Troake, 2 Ld. Baym. 1186 - - - - 276 

Foot, Bryant v., L. B. 2 Q. B. 161 ; 9 B. & S. 444 ; 37 L. J. 
N. 8. a B. 217 ; 18 L. T. N. S. 587 ; 16 W. B. 663 - - 321 

Forbes v. Ecclesiastical Commissioners for England, L. B. 15 
Eq. 51 ; 42 L. J. N. 8. Ch. 97; 27 L. T. N. 8. 511 ; 21 W. 
B. 169 298 

Ford, Badger v., 3 B. & Aid. 153 - 19, 268, 279, 283, 342 



XZXU TABLE OP CASES. 

FAOB 

Ford, Fordyoe v., 4 Bro. 0. 0. 495 - - - - 78 

Ford and HiU, In re, 10 Oh. Div. 365 - - - - 77 

Fold V. Hofikins, Gro. Jac. 368 .... 43 

Forder v. Wade, 4 Bro. 0. 0. 520 - - - 162, 166, 185 

Fordyoe v. Ford, 4 Bro. C. C. 495 - - - - 78 

Forse, Zouch d. Foise v., 7 East, 186 ; 3 Smith, 191 33, 69, 89 

Forster, Brown v., do. Eliz. 392 - - - - 59 

Fort V. Ward, Moo. 667 268 

Forteecue, Crosby v., 5 DowL 273 - - - 28, 29 

Forth, Bright v., Oro. Eliz. 442 - - - -10,13 

Foster, Burgess v., 1 Leon. 289 ; 4 Leon. 215 - - - 310 

Foster, Can- v., 3 a B. 581 ; 2 a. & D. 753 ; 6 Jur. 837 - - 344 

Foster, Honywood v., 30 Beay. 1 ; 30 L. J. N. S. Ch. 930; 7 
Jut. N. S. 1264 ; 4 L. T. N. S. 785 ; 9 W. E. 865 - 30, 345 

Foster, Londesborough (Lord) v., 3 B. & S. 805 ; 9 Jur. N. S. 
1173; 32 L. J. N. S. Q. B. 225; 8 L. T. N. S. 240; 11 W. 
B. 593 182, 183 

Fotherley, Tredway v., 2 Vem. 367 - - - 80, 184 

Fox V. Amhurst, L. B. 20 Eq. 403 ; 44 L. J. N. S. Gh. 666 - 256, 

293, 307 
Fox, Snag v.. Palm. 342 - - - - - 204 

Foxley's Case, 5 Bep. 109 a - - • -241, 242 

France, Ck)oper v., 19 L. J. N. S. Oh. 313 ; 12 Jur. 214 - 144 

France, Somerset (Duke of) v., 1 Stra. 654 - 40, 171, 183, 343 
Franklyn's Mortgagees, Li re, W. N. 1888, 217 - 96, 102 

Fraser v. Mason, 11 a B. Diy. 574 (0. A.); 52 L. J. N. S. 
a B. 643 (0. A.) ; 48 L. T. N. S. 269 ; 31 W. E. 550 - 174, 175, 

189 

Freeman, Doe d. Burrows 1;., 12 M. & W. 844; 1 0. &K386; 
14 L. J. N. S. Ex. 142 - - . - - - 346 

Freeman v. PhilUpps, 4 M. & S. 486 - 173, 174, 330, 339 

French's Oase, 4 Eep. 31 a - - - 46, 220, 349, 350 

Frosel (Froswell) v. Welsh ( Welohe) Oro. Jac. 403 ; Godb. 268 ; 
3 Buls. 216 - - - - - - 68, 151 

Fryer, Orisp v., Oro. Eliz. 505 - - - - - 230 



G. 

Qage, Parker v., 1 Show. 81 - - - - 199, 203 

Gale V, Gale, 2 Oox, Ch. Oas. 136 - - - - 54, 83 

Gale V. Noble, Garth. 432 - - - - -2 

Gallard v. Hawkins, 27 Oh. Diy. 298 ; 53 L. J. N. S. Oh. 834 ; 

61 L. T. N. S. 689 ; 83 W. E. 31 - - - 221, 222 

Games, Hughes v., Sel. Oas. Oh. temp. King, 62 - - 280 



• •• 



TABLE OF CASES. XXZIU 



Oarlmttv.TreTGr, 16 O.B.N. S. 550; lHar.ftBy.69; 33 L. J. 
N. S. C. P. 73; 9 L. T. N. S. 535; 12 W. E. 471 - 150, 324 

Gardiner, Hix v., 2 Buls. 195 - - - - - 200 

Oardner, Traheme v., 5 E. ft B. 91 3 ; 25 L. J. N. S. Q. B. 201 ; 
2 Jut. N. S. 394 - - - 52, 73, 188, 208, 313, 317 

Garland v. Alston, 3 H. ft N. 390; 27 L. J. N. S. Ex. 438; 4 
Jut. N. S. 589 182, 186 

Garland v. Jekyll, 2 Bing. 273 ; 9 Moore, 502 ; 2 L. J. C. P. 
227 156,187.204,205,208 

Garland v. Mead, L. B. 6 a B. 441 ; 40 L. J. N. 8. Q. B. 179; 
24 L. T. N. 8. 421 ; 19 W. E. 1156 - 72, 84, 87, 88, 188, 516 

Garland, Beg. v., L. B. 5 Q. B. 269; 39 L. J. N. 8. Q. B. 86; 
22 L. T. N. 8. 160 ; 18 W. B. 429 - - 72, 88, 188 

Garland v. Smith, 2 Mer. 123 - - - - - 66 

Gamett, Shnttleworth v., Garth. 90 - - - - 189 

Gaiiett, Bridges v., L. B. 5 0. P. 451 ; 39 L. J. N. 8. 0. P. 
251 ; 22 L. T. N. 8. 448; 18 W. B. 815 - - - 311 

Gairick V. Camden (Lord), 2 Cox, Oh. Oas. 231 - - - 196 

Gatewazd'B Oase, 6 Bep. 59 b .... 249,260 

Gay V. £ay. Ore. Eliz. 661 - - - . . 49 

George d. Thombnry v. Jew, Amb. 627 - - 62, 83 

Geraid'8 (Lord) Oase, Godb. 265 - - - -174,344 

Gibbons, Doe d, Wheeler i;., 7 0. ft P. 161 - - - 69 

Gibbons v. 8nape, 1 De G. J. ft 8. 621 ; 32 Beay. 130 ; 33 L. J. 
N. S. Oh. 103; 9 Jnr. N. 8. 1096; 9 L. T, N. 8. 132; 11 
W. B. 1087 30 

Gibson, Allgood v., 25 W. B. 60; 34 L. T. N. 8. 883 - - 260 

Gibson, Griggs v., 14 W. B. 819 377 

Gibson, Townley v., 2 T. B. 401 - - - - 287 

Gill, Hextv., L. B. 7 Oh. 699; 27 L. T. N. 8. 291; 41 L. J. 
N. S. Oh. 761 ; 20 W. B. 957 - - - 232, 234, 353 

Gilpin, Bence v., L. B. 3 Ex. 76; 37 L. J. N. 8. Ex. 36; 17 

li. T. N. 8. 655 ; 16 W. B. 705 - - - 22, 73, 91 

Gittens v. Oowper, 2 Brownl. 217 - - - - 224 

GiuHlei, Windham v., 40 L. J. N. 8. Oh. 505; 24 L. T. N. 8. 
663 314 

Gladstone, Salisbury (Marqnis of}t;., 9H.L. Oas. 692; 34 L. J. 

N. 8. 0. P. 222; 8 Jur. N. 8. 625 ; 4 L. T. N. 8. 849 ; 9 

W. B. 930, affirming 6 H. ft N. 123 19, 208, 233, 234, 236, 

252, 342 
Glass V. Bichardson, 2 De G. M. ft G. 658 ; 22 L. J. N. 8. Oh. 

105 ; 17 Jnr. 926 88, 89, 191 

Glasse, London (Oomnussioners of Sewers of] v., L. B. 7 Oh. 

456; L.B. 19 Eq. 134 ; L. B. 16 Eq. 302; 44 L. J. N. 8. Oh. 

129 ; 31 L. T. N. 8. 495 ; 23 W. B. 102 - - - 252, 267 

Gloucester (Bishop of) v. Wood, Winch, 46, 57 - - 202 

E. c 



ZXXIV TABLE OF CASES. 

PAGB 

Glover v. Cope, 1 Salk. 185 ; 4 Mod. 80 ; 3 Ley. 326 ; Carth. 
205; Oomb. 115; Holt, 159; Skin. 226 - - 74, 123 

Glover v. Lane, 3 T. E. 445 - - - -10, 276, 327 

Glyn, Everest v., 6 Taunt. 425 ; 2 Marsh. 84 ; Holt, 1 - 317, 320 

Goddard, Doe d. Nepean t;., 1 B. & 0. 522 ; 2 D. & By. 773 - 33 

Godfrey v. Bullock, 1 Eo. Abr. 623 - - - - 144 

Godfrey's Trusts, In re, 23 Oh. Div. 205 - - - 97 

Godwin v. Winsmore, 2 Atk. 525 - - - - - 160 

Gk)ldsmid, Great Eastern Bail. Go. v., 25 Oh. Div. 511 ; 9 App. 
Gas. 927 - . - - - - - 245 

Gomersall v. Medgate, Yelv. 194 - - - - - 197 

Goodtitle d. Faulkner v. Morse, 3 T. B. 365 - - 54, 148 

Godld v. White, K. 683 27 

Gosmoor, Pleydell v., Hutt. 66 - - - - 241 

Gouge V. Woodin, King's Bench, 1734 ; Elton, Ten. Kent, 189 - 138 

Goward, Bagshawev., Gro. Jac. 147; Noy, 119 - - - 241 

Grafton (Duke of) v. Horton, 2 Bro. P. G. 284 - 43, 174 

Graham, Ewart v., 7 H. L. Gas. 331 ; 29 L. J. N. S. Ex. 349; 
5 Jut. N. 8. 773 ; 7 W. B. 621 240 

Graham v. Jackson, 6 Q. B. 811 ; 14 L. J. N. S. Q. B. 129; 9 
Jut. 275 57 

Graham v. Sime, 1 East, 632 - - - - 76, 190 

Grand Junction Ganal Go. v. Dimes, 15 Sim. 402 ; 17 L. J. 
N.8. Gh. 206; 2 Jur. 886 - - - - 96, 188 

Grand Junction Ganal Go., Dimes v,,Z H. L. G. 794 ; 17 Jur. 
73 (H. L.); 9 Q. B. 469; 5 Bafl. G. 34; 16 L. J. N.S. a B. 
107; 11 Jur. 429 (Ex. Gh.) - - . -110,124 

Grant v. Astle, 2 Doug. 722 - - - 175, 176, 177, 187 

Grant v. Ellis, 9 M. & W. 113 ; 11 L. J. N. S. Ex. 228 - - 214 

Grant v. Gunner, 1 Taunt. 435 - - . 125, 279 

Grant, Higgins v., Gro. Eliz. 18 - - - - - 12 

Grouville, Eardly v., 3 Gh. Div. 826; 45 L. J. N. S. Gh. 669; 
24 W. B. 528; 34 L. T. N. 8. 609 - - - - 232 

GranviUe (Earl), Hilton v., 5 a B. 701; D. &Mer. 614; in 
Ghanc, Or. & Ph. 283; 4 Beav. 130; 10 L. J. N. S. Gh. 398-233, 

234, 273 

Gravenor v. Todd, 4 Bep. 23 &. - - - 25, 42, 49 

Graves, Batmore {or Blackbume) v., 1 Vent. 260; 1 Mod. 102, 
120; 3 Keb. 263; 2 Lev. 107 - - - - 186, 187 

Chreat Eastern Bailway Go., Gtddsmid v., 25 Gh. Div. 511 ; 9 
App. Gas. 927 245 

Great Yarmouth (Mayor, &c. of) v. Groom, 1 H. & 0. 102 - 245 

Green, Bateson v., 5 T. B. 411 - - - - 273, 274 

Green, Dunn v., 3 P. Wms. 9 - - - - 27, 165, 358 

Green v. Paterson, 32 Gh. Div. 95 ; 56 L. J. N. 8. Gh. 181 ; 54 
L. T. N. 8. 738; 34 W. B. 724 - - - - 30, 345 



TABLE OF CASES. 

Plffli 

Qreen V. Proude, 1 Mod. 117 - - - - - 326 

Green, BawlinBon v., Fbph. 127; 3 BuIb. 237 - - «- 191 

Green, Botherbam v., Gro. Eliz. 5d4 - - - • 270 

-Greenalfide, Paiamore v., 1 Sm. & G. 641 ; 23 L. J. N. S. Ch. 
34; 17 Jut. 1064 76 

Grey v. NoxihumberlAnd (Duke of), 13 Yes. jtin. 236 ; 17 Yes. 
jirn. 281 232 

Gray V. Pickeragpll, 30 Beay. 352 ; 31 L. J. N. S. Gh. 394 ; 8 
Jur. N. S. 632; 10 W. E. 207; 5 L. T. N. 8. 706 - - 21 

Griffixi V. Palmer, 1 BrownL 43 - - - - 326 

GriffitB, Boe d. Noden v., 4 Bnir. 1062 - - - 62, 183 

Giiggs V. Gibeon, 14 W. B. 819 - - - - 377 

Grimatead v. Marlowe, 4 T. B. 717 - - - - 260 

Grimstone, Ex parte, 4 Bro. 0. C. 236 n. - - - 71 

Groom, Great Yarmouth (Mayor, &c. of) v., 1 H. & G. 102 - 246 

Groom, Wilks v., 6 De G. M. & G. 206 - - - 98 

Groome, Pratt v., 16 East, 236 - - - * - 16 

Grymes v. Peaoock, 1 Buls. 17 - - - - 268, 367 

Guildford (Earl oQ, Bamett v., 11 Ezch. 19; 24 L. J. N. S. • 
Ex. 281 ; 1 Jur. N. 8. 1142 149 

Guise, Groome v., 4 Bing. N. 0. 148 ; 6 Scott, 463 ; 3 Hodges, 

277 210 

Gullett V. Lopee, 13 East, 348 262 

Gunner, Grant v., 1 Taunt. 436 - - - 126, 279 

Gwinnell, Doe d. BiddeU, 1 a B. 682 - - - - 161 

Gyde, Lingwood v., L. B. 2 C. P. 72; 36 L. J. N. 8. 0. P. 10 ; 
16 L. T. N. 8. 229 ; 16 W. B. 311 - - - 392, 626 

Gyppen v. Bunney, Cro. Eliz. 604 - - - - - 64 



H. 

Haddon {or Hall) v. Airowsmith, Gro. Eliz. 461 ; Owen, 72 ; 

Poph. 106 36 

Hagberton, Horsey v., Cro. Jao. 229 - - - - 276 

Halcraff 8 (Lady) Case, 4 Bep. 30 b. - - - -308 

Hale, Beg. v., 9 A. & E. 339; 1 P. & D. 293; 8 L. J. N. 8. 
aB. 83 230 

Hall V. Bromley, 36 Ch. Div. 642; 66 L. J. N. 8. Oh. 722; 66 

L. T. N. 8. 683 ; 36 W. B. 669 - - 72, 73, 74, 191 

Hall r. Byron, 4 Oh. Div. 667 ; 46 L. J. N. 8. Oh. 297 ; 36L.T. 

N. 8. 367 ; 26 W. B. 317 - - - - 274, 307 

HaD V. Ohichester (Earl of) v., 17 L. T. 121 214, 216, 218, 337 

Han-Dare v. Hall-Dare, 31 Oh. Div. 261 - - - - 32 

TTi^n^ Doe d. Bennington v., 16 East, 208 - - 313, 346 

Hall V. Harding, 1 W. Bl. 673; 4 Burr. 2426 - - - 266 

c2 



XXXYl TABLE OF CASES. 

PAOB 

Hall V. Nottmgliam, 1 Ez« Diy. 1 ^5 L. J. N. 8. Ex. 50; 33 
L, T. N. S. 697 ; 24 W. E. 68 - - - - - 298 

Hallett, Queen's College, Oxford v., 14 East, 489 - - 276 

Halton V. Hassel, 2 Stra. 1042 - - - . . 177 

Hammerton v. Honey, 24 W. E. 603 * - - 19, 341 

Hammond v. Bradstreet, 10 Ezch. 390 ; 23 L. J. N. S. Ex. 332- 836 

Hammond v. Hobart, 4 Eep. 27 b - - 176, 176, 189 

Hamner, Att,-Gen. r., 27 L. J. N. S. Ch. 837; 34 L. T. N, S. 
379 ; 4 Jut. N. 8. 761 ; 6 W. E. 804 - - - - 828 

Hanmer v. Chance, 4 De Q. J. & 8. 626 ; 34 L. J. N. 8. Ch. 
413; llJur.N. 8.397; 13W.E.666; 12 L. T. N. 8. 163 -236, 

237,328,338,340 

Hanslip^ Daniel v., 2 Ley. 67 - - - - 266, 262 

Hardbam, Cheesman v., 1 B. & Aid. 706 - - - - 291 

Harding, East v., Cro. Eliz. 498 - - - - 224 

Harding, HaU v., 1 W. Bl. 673 ; 4 Burr, 2426 - - - 266 

Hardinge, Thompson v., 1 C. B. 940; 14 L. J. N. 8. C. P. 268 ; 

9 Jut. 927 2,324 

Hardwicke (Earl) v. QajidjB (Lord), 12 M. & W. 761 - - 196 
Hardy, Bowlston v., Cro. Eliz. 647; 6 Eep. 104b; Moo. 463 - 239 
Hardy v, Eeeyes, 4 Ves. jun. 466 - - - - - 227 

Harecourt's (8ir 8imon de) Case, Yearb. Trin. 12 Hen. Ylli. 
lo. 2, pi. 2 - - - - - . 262, 264 

Harrington (Earl of), Widdowson v., IJ. & W. 632 62, 72, 163 

Harris v. Dayison, 16 8im. 128 - - - - - 326 

Harris v. Jay, 4 Eep. 30 a - - - - - 308 

Harris, Trotter v., 2 Y. & J. 286 - - - - - 244 

Harrison, Doe d. Le Keux v., 6 Q. B. 631 ; 14 L. J. N. 8. Q. B. 
77 ; 9 Jur. 104 163 

Harrison, Eooper v., 2 K. & J. 86 - - - - - 12 

Hart, In re, Ex parte 8Ghool Board for London, 41 Ch. Diy. 647 ; 
68 L. J. N. 8. Ch. 762 ; 60 L. T. N. 8. 817 ; 38 W. E. 61 - 27, 368 

Hartop V. Dalby, Hetl. 14 - - - - - 10 

Hartopp, Flowerv., 6Beay. 476 - - - - 76 

Hartopp, Eobertson v., 43 Ch. Diy. 484 ; 69 L. J. N. 8. Ch. 663 ; 
62 L. T. N. 8. 685 ... - 264,266,279 

Hassell, Halton v., 2 8tra. 1042 - - - - 177 

Hatherton (Lord), Anglesey (Marq. of) v., 10 M. & W. 218 ; 12 
L. J. N. 8. Ex. 67 237,342 

Hayering-atte-Bower Manor d. (8teward of), Eex v., 6 B. & Aid. 
691 336 

Hayiland {or Hayyland), Hungerford v., 3 Buls. 323 ; W. Jon. 
132 • 203,210 

Hawker, Breeze v., 14 Sim. 360 - - - - - 346 

Hawkins, Gallard v., 27 Ch. Diy. 298 ; 63 L. J. N. 8. Ch. 834 ; 
51 L. T. N. 8. 689 ; 33 W. E. 31 - - - 221, 222 



• • 



TABLE OF CASB8. XZZTU 

PAOV 

Haywaid v. Caimiiigion{or OuiiHigton), 2 Keb. 290, 311 ; 1 Sid. 
a54- - -,- - - - 255, 2d9 

Haywaxd v. Pile, L. E. 5 Oh. 214; 41 L. J. N. S. Ch- 778 ; 26 
L. T. N. S. 900; 20 W. B. 736 - - - - - 432 

Howard v. Eaw, 6 H. & N. 308 ; 30 L. J. N. S. Ex. 178 ; 4 
L. T. N. S. 519 - - - - 52, 174, 175, 191 

Heakin, Doe d. Beck v., 6 A. & E. 495; 2 N. & P. 660 - 328 

Hearfield, Wilberforoe v., 5 Oh. Div. 709 ; 46 L. J. N. S. Oh. 
584 ; 25 W. E. 861 335 

Heath v. Elliott, 4 Bing. N, 0. 388; 6 Scott, 172 ; 1 Am. 170- 252 

Hedd V. Ohalener, Oro. Eliz. 149 198 

Heddy v. Wheelhonse {or Welhouse), Oro. Eliz. 558, 591 ; Moo. 
474 - - - . - - 138, 240, 241, 244 

Hellier, Doe (i. Tarrant v., 3 T. E. 162 - 151,152,153,156,182, 

219, 222, 223, 224 

Helliwell, Brace v., 5 H. & N. 609 ; 29 L. J. N. S. Ex. 297 - 238 

Hemet (or Hemmett), Eolkard v., 5 T. E. 417 n. ; 2 W. Bl. 
1061 273,280,315 

Hemingway, Bex v., 1 Barnard. 436 - - - - 306 

Hempston, Sands v., 2 Leon. 109 - - - - 49 

Hendon Manor (Lord of), Eex v., 2 T. E. 484 - 64, 72, 190 

Henley, Ex parte Lord, Li re London & S. W. By. Oo., 29 
Beav. 311 ; 31 L. J. N. S. Oh. 54 ; 9 W. E. 350 - 47, 352 

Herbert, Pain v., dted 2 Keb. 158 .... 130 

Herbert, Tenham (Lord) v., 2 Atk. 483 - - - 266 

Hewet tf. Norberow, 1 Bnla. 52 - - - - - 196 

Hexham Manor (Lord of), Eex v., 5 A. & E. 559 ; 1 N. & P. 
53 ; 2 H. & W. 397; -6 L. J. N. S. K B. 33 - 69, 89 

Hext «. Gill, L. E. 7 Oh. 699 ; 41 L. J. N. S. Oh. 761 ; 27L.T. 
N. a 291 ; 20 W. E. 957 ... 232, 234, 353 

Heydon v. Smith, 13 Eep. 67 - - - - - 231 

Heydon's Oaae, 3 Eep. 7 a. ; Moo. 128 - - 121, 124, 225 

Heywood, Anderson v., 3 Leon. 221 ; 4 Leon. 38 - - 154 

Hoy's WiU, 9 Haie, 221 100 

Blckringill, Eeble v., 11 Mod. 74 - - - - 238 

Hicks, Eoe d. JefFereys v., 2 Wils. 13 - - - 80, 224 

mcks V. SalHtt, 3 De G. M. & G. 782 ; 22 L. J. N. S. Oh. 571 ; 
18Jnr. 915 13,91,275 

Hide V. Newport, dted Moo. 185 - - - - - 350 

Higford, Oox v., 2 Vem. 664 223 

Higgins V. Grant, Oro. Eliz. 18 - - - - - 12 

mi, Barker v., 2 Oh. Eep. 218 - - - - 67 

HiU, Laoey v., L. E. 19 1^. 346 ; 44 L. J. N. S. Oh. 215 ; 32 
L. T. N. S. 48 ; 23 W. E. 285 - - - 166, 516 

TTill Portland (Dnke of) v., L. E. 2 Eq. 765 ; 35 L. J. N. S. 
Ch. 439 ; 12 Jur. N. S. 286 ; 15 W. E. 38 - 2, 237, 250, 324, 340 



XZXViii TABLE OF CASBS. 

PAGE 

Hill, StephenBon v., 3 Burr. 1273 - - - . . 2 

Hillary v. Waller, 12 Yes. jun. 239 - - - 218, 338 

Hilton v. QraiiTille (Earl), 5 a B. 701 ; D. & Mer. 614 ; in 
Chanc, Cr. ft Ph. 283 ; 4 Beay. 130 ; 10 L. J. N. S. Ch. 398- 233, 

234,273 

Hinton v, Hinton, 2 Yes. 631 - - - - 63, 67, 166 

Hitch, Lawrence v., L. B. 2 Q. B. 184, n.- - - - 321 

Hiz v. Oaidiner, 2 Buls. 196 - - - - - 200 

Hoare, Wilaon v., 10 A. ft B. 236 ; 2 B. ft Ad. 360 ; 2 P. ft D. 
669; 9 L. J. K B. 263 - - - 176, 179, 180, 181, 182 

Hobart v. Hammond, 4 Bep. 27 b - - 176, 176, 189 

Hobeon v. Todd, 4 T. B. 71 266 

Hockley {or Stuckley), Fitch v., Cro. Eliz. 44*2 ; 4 Bep. 23a - 64, 

73, 83, 186 

Hoddesden, Jackman v., Cro. Eliz. 361 - - 34, 36, 176, 229 

Hodges, Holdage v., 1 Ley. 106 - - - - 326 

Hodges, Turner v., Hutt. 101 - - - 36, 36, 221 

Hodgson, Myers v., 1 0. P. Diy. 609 ; 46 L. J. N. S. 0. P. 603 ; 

34 L. T. N. S. 881 ; 24 W. B. 827 - - 382, 623 

Hodgson, Boe d. Parry v., 2 Wils. 129 ... 169 

Hoe V. Taylor, Cro. Eliz. 413 ; 4 Bep. 30 b - - 14, 16 

Holdage v. Hodges, 1 Ley. 106 • - - - - 326 

Holder d. Sulyard v. Preston, 2 Wils. 400 - - 88, 89, 191 

Holdfast d. WooUams v. Clapham, 1 T. B. 600 ; 4 Burr. 1962 - 63, 69 
Holland i;. Lancaster, 2 Yent. 134 - - 170, 208, 210 

Holloway v. Berkeley, 6 B. ft C. 2 ; 9 D. ft B. 83; 6 L. J. 

KB. 1 187, 204, 206 

Holroyd v. Breare, 2 B. ft Aid. 473 - - - - 300 

Holworthy, Whitechurch v., 4 M. ft S. 340 ; 19 Yes. jun. 213 - 232 
Honey, Hammerton v., 24 W. B. 603 - - - 19, 341 

Honour, Wheeler v., 1 Sid. 68 - - - - 189, 190 

Honywood v. Foster, 30 Beay. 1 ; 30 L. J. N. S. Ch. 930; 7 

Jur. N. S. 1264; 9 W. B. 866; 4 L. T. N. S. 786 - 30, 346 
Honywood v. Honywood, L. B. 18 Eq. 306 ; 43 L. J. N. S. Ch. 

662; 30 L. T. N. S. 671 ; 22 W. B. 749 - - - - 227 

Hook V. Hook, 1 Hem. ft M. 43 - - - - 146 

Hopkins, Down v., 4 Bep. 29 b; Cro. Eliz. 323 - - 42, 308 

Homcastle V. Charlesworth, 11 Sim. 316 ; 18 L. J. N. S. Ch. 36 - 118 
Horsey v. Hagberton, Cro. Jac. 229 - - - - 276 

Horton v. Bookman, 6 T. B. 760 - - - - 342 

Horton, Grafton (Duke of) v., 2 Bro. P. C. 284 - - 43, 174 

Hoskins, Ford v., Cro. Jao. 368 - - - - 43 

Hoskins v. Bobbins, Pollerf. 13 ; 2 Wms. Saund. 320 - 266, 276 
Hotham (Lord), Att.-Gen. v., Turn, ft B. 209 - - 347 



TABLE OF CASB8. XXXIX 

PAOB 

Hougham v. Sandys, 6 L. J. Gh. 67 - - - - 140 

Houghton, Northumberland (Duke of) v., L. E. 6 Ex. 127 - 243 

Howard, Inre, 3W.B.605- - - - -99 

Howard v. Barilet, Hob. 181 - - - - 161, 162 

Howard v. CaTendiah, Cro. Jac. 621 - - - - 159 

Howard, Yerulam (Earl) v., 5 Moo. & P. 148 ; 7 Bing. 327 ; 9 
L. J. C. P. 69 177 

Howard, Wright v., 1 8. & S. 190 - - - - 78 

Hoyte, Bex v., 6 T. B. 430 - - - - - 329 

Hudleston v. Whelpdale, 9 Hare, 775 - - - - 188 

Hudflon, Otvay «., 2 Vom. 583 - - - - 27, 161 

Hudflon, Phillips v., L. B. 2 Gh. 243 - - • 332, 334 

Hughes, In re, W. N. (1884) 53 101 

Hughes V. Games, Sel. Gas. Gh. temp. King, 62 - - 280 

Hughes V. Wells, 9 Hare, 749 ; 16 Jur. 927 - - - 222 

Hull, Ex parte, 7 DowL 690 318 

Hull V. Sharbrook, Gro. Jac 36 - - - . . 68 

Hulse, Andrews v., 4 K. & J. 392 ; 27 L. J. N. S. Gh. 655 ; 4 
Jut. N. S. 581 226 

Humberstone, Blemmerhasset v., Hutt. 65 ; W. Jon. 48 - 349 

Humphrey, Peer v., 2 A. & E» 495 - * - - 203 

Hundred of Mulyerton (Lord of), Bex v., 3 A. & E. 284 - 302 

Hungerford, Hayiland {or Havyland) v., W. Jon. 132 ; 3 Buls. 
323 203,210 

Hunt, Farmer v., Willes, 638 - - - - - 276 

Hunt, Whiteeld v., 2 Doug. 727, n. - - - - 189 

Hunter, Maraham v., Gro. Jac 253 - - * - 268 

Huntington, Doe d. Beay v., 4 East, 271 - 6,51,324,353 

Hurd, Sdisbury d. Gooke v., Gowp. 481 - - - 160, 165 

Hutt, Ex parte, 7 DowL 690 ; 3 Jur. 1105 - - - 315 

Hutton, Doe d. Andrew v., 3 B. A P. 643 - - - - 143 

Hutton, Boe d. Ashton v., 2 Wils. 162 ... 15a 



Idle V. Gook, 1 P. Wms. 70; 2 Salk. 620; 2 Ld. Baym. 1144; 

11 Mod. 57 62 

Inoe, Elliott v., 7 De Qt. M. & G. 475 - - - - 55 

IndoBure Gommissioners, Musgraye v., L. B. 9 Q. B. 162 ; 43 
L. J. N. 8. Q. B. 80; 30 L. T. N. 8. 160 ; 22 W. E. 295 - 274 

Ingleton Manor (Lords of), Beg. v., 8 Dowl. 693 ; 4 Jur. 700 - 29 

Ingram v. Tothill, 1 Mod. 216; 2 Mod. 93 - - - 207 

Ireland, Boe d. Johnson v., 11 East, 280 - 153, 219, 338, 355 

Ireland, Soane v., 10 East, 259 ... 10, 301, 327 



Xl TABLB OF CASBS. 

FAOB 

Irwin (Yisct.) v. Simpflon, 7 Bro. P. G. 306 - - - 3S4 

lyatt, Eyerixiffham v., L. B. 7 Q. B. 683; L. B. 8 Q. B. 388; 
42 L. J. NT 8. a B. 203; 28 L. T. N. S. 672; 21 W. B. 
962 23, 191 

lyatfc i;. Mann, 3 M. & Or. 691; 4 Soott, N. S. 342 -247,283 



J. 

Jaokman v. Hoddesden, Cro. Eliz. 351 - - 34, 36, 176, 229 

Jaokfion, Graliam i;., 6 a B. 811 ; 14 L. J. N. S. Q. B. 129; 9 
Jut. 276 - - - - - - - - 67 

Jackson, Middleton v., 1 Bep. in Oh. 33 - - - 176 

JadLBon V. Neal, Cro. Eliz. 396 ; 4 Bep. 26 b - 13, 36, 229 

Jaoomb v. Turner, (1892) 1 a B. 47 - - - - 120 

James, Dixon v., 1 Freem. 273 - - - - - 276 

James, Taylor v., Godb. 160 - - - - - 241 

James v. Tutney, Cro. Oar. 497 ; W. Jon. 421 - - 16, 307 

Jay, Haiiis v., 4 Bep. 30a - - - - - 308 

Jeans v. Cooke, 24 Beay. 613 ; 27 L. J. N. S. Ch. 202 ; 4 Jur. 
N. S.67 41 

Jefleiy, Boe d. Bennett v., 2 IL & S. 92 - 27, 237, 338, 346 

Jekyll, Garland v., 2 Bing. 273; 9 Moore, 602; 2 L. J. 0. P. 
227 T - - - - 166, 187, 204, 205, 208 

Jenkins, Blewett v., 12 C. B. N. S. 16 - - 211, 232, 236 

Jenkins, Bandall v., 1 Mod. 96 - - - - 138 

Jenner, Biddell v., 10 Bing. 29 - - - - - 160 

Jenney, Doe d. Whitbread v., 6 East, 622 ; 2 Smith, 116 - 73, 163, 

186 

Jennings, Bridgman v., 1 Ld. Baym. 734 - - - - 334 

Jeryis, Preston v., 1 Vem. 326 . - - - 129 

Jew, GFeorge d. Thombnry v., Amb. 627 - * - 62, 83 

Joddzell, Berell v., 2 T. B. 416 - - - - 269 

Johnson v, Barnes, L. B. 8 C. P. 627 ; 42 L. J. N. S. C. P. 
269; 29 L. T. N. S. 66 269, 270 

Johnson v. Smart, 1 Bo. Abr. 608, pi. 14 - - - 36 

Johnstone v, Spencer (Earl), 30 Ch. Diy. 681 ; 63 L. T. N. S. 
602;34W.B. 10 178,340 

Joliffe, Bex v., 2 B. ft C. 64; 3 D. ft By. 240 - - 302, 340 

Jones, Att.-Gen. v., 2 H. ft 0. 347 ; 33 L. J. N. S. Ex. 249 ; 
1 L. T. N. S. 966 328 

Jones, Cooper v., 26 L. J. N. S. Ch. 240 ; 2 Jnr. N. S. 59 - 99 

Jones V. Jones, 6 Hare, 440 - - - - - 188 

Jones, Lloyd v., 6 C. B. 81 ; 17 L. J. N. S. C. P. 206 ; 12 Jnr. 
667 260 

Jones, Powdrell v., 2 Sm. ft G. 407 ; 24 L. J. N. S. Ch. 123 - 166 



TABU OF 0ASB8. xli 

Jones V. Bichanls, 6 A. & E. 530; 2 N. & P. 747; W. W. &^^^^ 
D. 276 - -----« 262 

Jones If. Bobin, 10 a B. 620; 17 L. J. N. S. Q. B. 122; 12 
Jnr. 308 - - - - - . - - 252 

Jordaii, Whitbread v., 1 Y. & C. Ex. 303; 4 Y. & 0. Ex. 566; 
4 L. J. N. S. Ex. Eq. 38 - - - . 74^32 

Jorden v. Stone, Hutt. 18 - - - - - - 162 



K 

Kay, Gay v., Cro. Eliz. 661 - - - - - 49 

Keble v. Hickrmgill, 11 Mod. 74 - - . . . 238 

Keck, Neeve v., 9 Mod. 106 - - - . - 67 

Keen v. Kirby, 2 Mod. 32- - - - -.54 

Kellow V. Bowden, 1 Show. 244 - - - - 141 

Kelsey, Underbill v., Cro. Jac. 226 - - . . 153 

Kemp, Wright v., 3 T. B. 470 - - - - . 62 

Kempe v. Garter, 1 Leon. 55 - - . . . 132 

Kensington (Lord) v. Mansell, 13 Ves. jun. 240 - 185, 187 

Kenflit, Bichardson v., 5 M. & Gr. 485 ; 6 Scott, N. B. 419 : 

12 L. J. N. S. C. P. 154 - - . . . - 177 

Kenay v. Bichardson, Cro. Eliz. 728 - - . - 35 

Kent, Druiy v., Cro. Jeo. 14 - - - - - 262 

Keir V. PawBon, 25 Beav. 394; 27 L. J. N. 8. Oh. 594; 4 Jnr. 

N. 8.425 415,416,528 

Kett, Parker r., 12 Mod. 467 310 

Kettlewell, Scott v., 19 Yes. jnn. 335 - - . . i63 

Kidoai, Meere v., Godb. 175 - - - . . 224 

Eng V. Dilliflton {or Dillington), 3 Mod. 221; 1 Salk. 386; 1 

iVeem. 494; Garth. 41 ; Comb. 118 - - . 67, 80, 154, 

177, 178 
King V. Moody, 2 Sim. & 8. 579; 4 L. J. Gh. 227 - 351, 352 
King V. Turner, 1 Myl. & K. 456 - - - - 91, 148 

£ng, Wharton v., 3 Anst. 659 - - 43, 173, 174, 344 

Kingsbridge BlghwAj Board, Pitts v., 19, W. B. 884; 25 L. T. 

N. S. 195 260 

King^s College, Cambridge, Ex parte, (1891) 1 Gh. 333; 64 
L. T. N. S. 623 . - . . ' . .' . 43e 

KingsweU, Worledg v., Cro. Eliz. 794 - - - 269, 357 

Kirby, Keen v., 2 Mod. 32 - - . . . 54 

Erby v. Sadgiove, 1 B. & P. 13; 6 T. B. 483; 3 Anst. 892 -263, 

264, 273, 275 
Kirwood,Mxntonv.,L.B.3Gh. 614; L.B.lEq.449; 35L.J. 

N. 8. Gh.393; 12 Jnr. N. 8. 86 ; 14W. B. 274; 13 L. T. 

N. S. 751 - - - - - - 63, 355 



xlii TABLE OF CASES. 

PAGE 

Kitchen v. Enight, Mcdell. 373 - - - - 266 

Kite V. Queinton, 4 Bep. 25 a. - - - 68, 94, 347 

Knight, Kitchen v., Mcaell. 373 - - - * 266 

Knight, Winchester (Bishop of) v., 1 P. Wms. 406 - 227, 236 

Knoll, Peter v., Cro. Eliz. 32 - - - - - 198 



L. 

Lacey V. Hill, L. B. 19 Eq. 346; 44 L. J. N. S. Ch. 216; 32 
L. T. N. 8. 48 ; 23 W. B. 285 - - - - 166, 516 

Lacy V, Anderson, cited 1 Swanst. 398 n., 445 ; Gho. Gas. Ch. 
155 - - - - - - - - 164 

Lake v. Plaxton, 10 Ex. 196 ; 24 L. J. N. S. Ex. 52 - - 279 

Lakin, Doe d. Hughes v., 7 G. & P. 481 - - - 335 

Lambert, Garr v., L. B. 1 Ex. 168 ; 4 H. & G. 257 ; 35 L. J. 
N. 8. Ex. 121 ; 12 Jur. N. 8. 194; 13 W. B. 499 - 251, 270, 271 

Lambirth, Wood v., 1 Ph. 8 ; 5 Jur. 741 - - 93, 165 

Lancashire and Yorks. Bail. Go., Be, Ex parte Macaulay, 23 
L. J. N. 8. Gh. 815 110 

Lancaster v. Holland, 2 Vent. 134 - - - 170, 208, 210 

Lancaster v, Popham, 2 Bep. in Gh. 134 - - - 176 

Land Gommissioners for England, Beg. v., 23 Q. B. Diy. 59 ; 
58 L. J. N. S. Q. B. 313 ; 37 W. B. 538 - - - 395, 559 

Lane, Fisher v., 2 W. BL 834 348 

Lane, Glover v., 3 T. B. 445 - - - 10, 276, 327 

Lane, Lewis v., 2 Myl. & K. 449 - - - - 42 

Lane, Be, 12 W. B. 710 99 

Lane's Gase, 2 Bep. 16 b. - - - - - 350 

Langley, Beale v, {or Bell and Langley's Gase), 2 Leon. 209 ; 
4 Leon. 230 - - - - - - 13, 202 

Lanyon v. Game, 2 Wms. Saund. 165; 1 Ley. 294 ; 1 Vent. 91 ; 
1 Sid. 473 ; 2 Keb. 505 - - - - 198, 199 

Lascelles v. Onslow (Lord), 2 Q. B. Diy. 433 ; 46 L. J. N. S. 
Q. B. 333 ; 36 L. T. N. S. 469 ; 25 W. B. 456 - - 279, 339 

Lashmer v. Ayery, Gro. Jac. 126 .... 166 

Lathbury v. Arnold, 1 Bing. 217 - - - - - 262 

Latton, Erbery v., 1 Leon. 190 - - - - 308 

Lawes, Doe d. Winder v., 7 A. & E. 195 ; 2 N. & P. 195 ; W. 
W. & D. 484; 7 L. J. N. S. a B. 97 - - - 73, 183 

Lawnd, Simonds, v., Gro. Eliz. 239 - - - - 79 

Lawrence, Grosser., 9 Hare, 462 - - - - - 76 

Lawrence v. Hitch, L. B. 2 Q. B. 184 n. - - - 321 

Lawson, Bradshaw v., 4 T. B. 443 - - - 10, 300, 353 

Lea, Watkins v., 6 Yes. jun. 633 - - - - 39 



TABLE OF CASES. xUu 

PAOB 

Leoonfield (Lord) t;. Dixon, L. B. 3 Ex. 30; 37 L. J. N. B. Ex. 
33 ; 17 L. T. N. S. 288; 16 W. B. 167 - - - - 240 

Lechford's Case, 8 Bep. 99 a - - - - -154 

Lee V. Bayes, 18 C. B. 699; 26 L. J. N. S. C. P. 249 ; 2 Jur. 
N. S. 1093 242 

Lee V. Boothby, 1 Keb. 720 - - - - - 347 

Lee V. Edwards, 1 Brownl. 173 - - - - 269 

Leeds (Duke of), Att.-Qeii. v., 2 Myl. ft K 343 - - - 222 

Leeds (Duke of) v. Strafford (Earl of), 4 Yes. jun. 181- - 228 

Le Fleming, Shutileworth v., 19 0. B. N. S. 687 - - - 269 

Leicester Forest (Case of), Gro. Jac. 166 - - 246, 336 

Leman, Minet tf., 20 Beay. 269; 7 De Q. M. ft Q. 340; 24 
L. J. N. S, Ch. 646 ; 1 Jnr. N. S. 692 - - - - 114 

Lemman, Denny t;., Hob. 136 ----- 176 

Lemon v. Blackwell, Skin. 191 - - - . . 13 

Lempriere, Guthbert v.y 3 M. ft S. 168 - * - - 60 

Lenthall v. Thomas, 2 Eeb. 267 - - - - - 229 

Lepingwell, Bunting v., 4 Bep. 29 a; Moo. 169; Skin. 468 69, 62 

Lewin, Att-Qen. v., 1 Coop. 61 ; 8 Sim. 366 ; 6 L. J. N. S. Ch. 
204; IJnr. 234- 61 

Lewis V. Branthwaite, 2 B. ft Ad. 437 ; 9 L. J. E. B. 263 - 236 

Lewis V. Lane, 2 Myl. ft K. 449 - - - - - 42 

Lewis V. Talbot, 1 C. M. ft B. 496 - - - 243, 331 

Lidiard and Jackson's and Broadley's^Oontract, 42 Ch. Diy. 
264 ; 58 L. J. N. S. Ch. 786; 61 L. T. N. S. 322; 37 W. E. 
793 153, 219, 338, 366 

Lightfoot, Butler v., 3 Leon. 239 - - - . . 64 

Lingwood v. Gyde, L. E. 2 C. P. 72; 36 L. J. N. S. C. P. 10; 

16 L. T. N. S. 229 ; 16 W. E. 311 - - - 392, 626 

Lipeoombe, Abington v., 1 Q. B. 776; 1 Q. ft D. 230; 6 Jur. 
261 200,203 

Lipscombe, Bland t^., 4 E. ft B. 712, n. ; 3 Com. Law Bep. 261 ; 

24 L. J. N. S. Q. B. 166, n.; 24 L. T. N. S. 92; 1 Jut. 

N. S. 707, n. 260 

Lireipool Dock Acts, In re, 1 Sim. N. S. 202 • - - 110 

Llandaff (Bishop of), Lushbigton v., 2 N. E. 491 9, 17, 138, 326 
Llewellyn, Dunrayen (Earl of) v., 16 Q. B. 791 ; 19 L. J.N. S. 

Q. B. 388 ; 10 Jur. 1089 - - 261, 269, 330, 331 

Lloyd V. Jones, 6 C. B. 81 ; 17 L. J. N. S. C. P. 206 ; 12Jur.667- 250 
Lbyd r. Powis (Earl of), 4 E. ft B. 485 - - - 274 

Locke, Bush v., 3 CL ft F. 721 ; 9 BIL N. S. 1 - - - 136 

Locke V. Colman, 1 MyL ft Gr. 423 ; 2 Myl. ft Gr. 42, 636 - 144 
Locke V, Southwood, 1 MyL ft Gr. 441 ; afiOrmed, H. L. wb 

wmi. Bush V. Locke - • • - - 135, 159 

Lodge, Deyonshixe (Duke of) v., 7 B. ft G. 36 - «• - 239 



Xliv TABLE OF CASES. 

Lofield's Oase, 10 Bep. 106 a - - - - - 205 

Lomax, Brisco v., 8 A. & E. 198; 3 N. & P. 308 ; 1 W. W. & 
H. 235 ; 2 Jur. 682 332 

Lomaz, Ourzon v., 5 Esp. 60 - • - - - 10, 248, 327 

Lonsdale, Bigg v., 11 Exoh. 654; 1 H. & N. 923 (Ex. Gh.) ; 
26 L. J. N. S. Ex. 196; 3 Jur. N. 8. 390 - - - 16 

Londesboroi^li (Lord) v. Foster, 3 B. ft S. 805 ; 9 Jur. N. S. 
1173; 52L. J,N.8.0.B. 225; 8L.T.N.S. 240; 11 W. B. 
593 182, 183 

London, Brixton and South Coast Bail. Go., Stoneham v., 
L. B. 7 a B. 1 ; 41 L. J. N. S. Q, B. 1 ; 25 L. T. N. S. 788; 
20 W. B. 77 295 

London (Commissioners of Sewers of) v, Glasse, L. B. 7 Ch. 
456; L. B. 19 Eq. 134 ; L. B. 15 Eq. 302 ; 44 L. J. N. S. 129 ; 
31 L. T. N. S. 495 ; 23 W. B. 102 - - - 252, 267 

London (Corporation of), Chilton v., 7 Ch. DiY.-562, 735; 47 
L. J. N. 8. Ch. 433 ; 38 L. T. N. 8. 498 ; 26 W. B. 474 - 261 

London and South Western Bail. Co., Ecclesiastical Commis- 
sioners v., 14 C. B. 743 ; 2 Com. Law Bep. 1797 ; 23 L. J. 
C. P. 177 ; 18 Jur. 911 107, 194 

London and South Western Bail. Co., Li re, Exparte Lord 
Henley, 29 Beay. 311 ; 31 L. J. N. S. Ch. 54; 9 W. B. 350 - 47, 

352 

London's Case, dted Godb. 269 - - - - - 230 

Long, Baspole {or Baspool) v., Yely. 1; Cro. Eliz. 879; 
Noy, 42 67,80 

Long V. Collier, 4 Buss. 267 - - - - - 76 

Lopes, Gullett v., 13 East, 348 - - - - 252 

Loyelace v. Loyelace, Cro. Eliz. 40 - - - . 136 

Loyeless, Boe d. Cosh v., 2 B. & Aid. 453 - - 50, 63 

LoyeUv. LoyeU,3Atk. 11 21 

Lowe v. Carpenter, 6 Exch. 825 .... 285 

Lowther v. Caledonian Bail. Co., (1892) 1 Ch. 73; 61 L. J. 
N. S. Ch. 108 ; 66 L. T. N. S. 62 ; 40 W. B. 225 194, 195, 419 

Lowiher, Fawoet v., 2 Yes. 300 - - -68, 139, 184 

Lowther v. Baw, 2 Bro. P. C. 451 - - . 171, 348 

Lucas, Bex v., 10 East, 235 - - - - - 314 

Lufkin, Doe d. Nunn v., 4 East, 221 ; 1 Smith, 90 - - 230 

Lushii^rton v. Lkndaff (Bishop of), 2 N. B. 49 9, 17, 138, 326 

Luter, Melwich v., 4 Bep. 26 a - - - 13, 34, 301, 308 

Luttrel V. Weston, Cro. Jao. 308 - - - - 35 

Luttrel's Case, 4 Bep. 86 a - - - - 257, 272 

Lutwyohe v. Lutwyohe, Cases temp. Talbot, 276 - - 142 



TABLE OP GASBS. xlv 



PAOB 

MiacauIaT, Ex parte, Be Lancashire ft York. Bail. Go., 23 L. J. 
N. S. Oh. 816 110 

Macaulay, Price v.y 2 De G. M. ft Q. 339 - - - 78, 219 

Maclean, Bowser v,, 2 De Q. F. ft J. 416 ; 30 L. J. N. S. Oh. 273- 234 

Ttfaitland, Willingale v., L. B. 3 Eq. 103; 36 L. J. N. S. Ch. 
64 261 

Major T. Brandwood, Gro. Oar. 260 - - - - 199 

Malster, Beeve v., Gro. Gar. 410 - - - 129, 140, 146 

Maltster, Bowden v., Gro. Gar. 42 - - - - 122 

Man, Drory v., 1 Atk. 96 - - - - - - 184 

Mann, lyatt v., 3 M. ft Or. 691 ; 4 Scott, N. S. 342 - 247, 283 

Mansell, Kensington (Lord) v., 13 Yes. jnn. 240 - - 186, 187 

Mantel, Woodland v., Flowd. 94 - - - 198, 199 

Mardiner v. Elliott, 2 T. B. 746 - - - - 161, 236 

Marlowe, Qiimstead v., 4 T. B. 717 - - - - 260 

Marsh v. Smith, 1 Leon. 26 - - - . . lo 

Marshall, Gooperv., IBuir. 269; 2 Ld.Ken« 1; IWils. 61 -261, 

263, 273, 276 

Marsham v. Hunter, Gro. Jao. 263 - - ... 268 

Marsham, York (Dnke of) v.. Hard. 432 - - - - 124 

Martin, Doe d, Lempriere v., 2 W. BL 1148 - - - 34 

Marje's Case, 9 Bep. HI b - - - - 266, 276 

Mason v. Gsesar, 2 Mod. 66 - - - - - 263 

Mason, Doe d. Mason v., 3 Wils. 63 - - 237, 338 

Mason, Fraser v.. 11 Q. B. Div. 674 (0. A.); 62 L. J. N. S. 
Q. B. ©43 ; 48 L. T. N. S. 269 ; 31 W. B. 660 - 174, 176, 189 

Mason, Bowles v., 1 Brownl. 132 ; 2 Brownl. 86 - 236, 342 

Mason, Shelley v., cited 6 Yin. Abr. 112, 114 - - - 229 

Mathewman, Burdet v., OLayt. 107 - - - - 241 

Mathews v. Feayer, 1 Ooz, Oh. Oa. 278 - - - 66, 123 

Mathias, Att-Gen. v., 4 K. ft J. 679 ; 27 L. J. N. S. Oh. 761 - 248, 

260 

Matthew v. Osborne, 13 0. B. 919 ; 22 L. J. N. S. 0. P. 241 ; 
17Jur. 696 64 

Matthews, Barwick v., 6 Tannt. 366 ; 1 Marsh. 60 - - 249 

Mattock, Snook v., 6 A. ft E. 239 - - - - 61, 61 

Maule, Weayer v. 2 B. ft M. 97 - - - - 60 

Maw, Seamen v., 3 Bing. 378 ; 11 Moore, 243 ; 4 L. J. 0. P. 97- 66 

Mawson, Barnes v., 1 M. ft S. 77 - - - 233, 328, 331 

May 9. Milton, Dyer, 133 b 136 

May V. Street, Gro. Eliz. 120 - - - - - 326 

Mead, Garland v., L. B. 6 Q. B. 441 ; 40 L. J. N. S. Q. B. 179 ; 
24 L. T. N. S. 421 ; 19 W. B. 1166 - 72, 84, 87, 88, 188, 616 



zlyi TABLE OF CASES. 

PAOB 

Medgate, QomerBall v., Yely. 194 - - - - - 197 

Mee, Doe d. Cawthom v., 4 B. & Ad. 617; 1 N. ft M. 424 - 346 

Meer and Forton Manor (Lord of), Bex v., 2 D. ft By. 824 - 178 

Meere v. Kidout, Godb. 176 - - - - - 224 

MelloT V. Spateman, 1 WmB. Saund. 339 - 248, 260, 263, 264 

Melwich v. Luter, 4 Bep. 26 a - - - 13, 34, 301, 303 

Merdiant Tailors' Go. (Master of), Bex v., 2 B. ft Ad. lid - 314 

Michel, Bullen v., 2 Price, 399 334 

Middleton v. Jackson, 1 Bep. in Ch. 33 - - - 176 

Middleton (Lord), Pullen v., 9 Mod. 483 - - - - 22 

Mndmaj (Lady), Bex v., 5 B. ft Ad. 254 ; 2 N. ft M. 778 - 224 

Miles, De la Warr (Earl) v., 17 Ch. Diy. 535 ; 50 L. J. N. S. Ch. 
754 ; 44 L. T. N. S. 487 ; 29 W. B. 809 - 19, 250, 255, 343, 344 

Milfax V. Baker, 1 Ley. 26 - - - - - 224 

Mill V, New Forest Commissioner, 18 C. B. 60; 25 L. J. N. S. 
C. P. 213 ; 2 Jut. N. S. 520 237 

Miller v. Warmington, IJ. ft W. 484 - - - - 228 

Mills, Paterson v., 19 L. J. N. S. Ch. 310 ; 15 Jur. 1 - - 143 

Mills' Trusts, Li re, 37 Ch. Diy. 312; 40 Ch. Div. 14 (C. A,); 
67 L. J. N. 8. Ch. 466 ; 60 L. T. N. S. 442 ; 37 W. B. 81 - 97, 

101, 567 

Milton, May v.. Dyer, 133 b 136 

Milton (Inhabitants of), Bex v., 1 C. ft K. 58 - - - 336 

Minet v. Leman, 20 Beay. 269 ; 7 De Q. M. ft Q. 340 ; 24 L. J. 

N. S. Ch. 545 ; 1 Jur. N. S. 692 - - - - 114 

Minet v. Morgan, L. B. 11 £q. 284 ; L. B. 8 Ch. 361 ; 42 L. J. 

N. 8. Ch. 627 ; 28 L. T. N. 8. 573 ; 21 W. B. 467 - 252, 316 
Minton v. Eirwood, L. B. 3 Ch. 614 ; L. B. 1 Eq. 449 ; 35 L. J. 

N. 8. Ch. 393 ; 12 Jur. N. 8. 86 ; 14 W. B. 274 ; 13 L. T. 

N. 8. 751 - 63, 365 

Mitohel V. Neale, 2 Yes. 679 - - - - - 68 

Mitford, Nicholls v., 20 Ch. Diy. 380 ; 51 L. J. N. 8. Ch. 485; 

30 W. B. 509 297 

Molineux, Clifton v., 4 Bep. 27 a - - - - 301 

Monopolies, Case of, 11 Bep. 84 b - - - -238,273 

Monro v. Taylor, 8 Hare, 61 - - - - - 75 

Montague's (Lady) Case, Cro. Jac. 301 - 35, 224, 229, 230 

Moody, King v., 2 8im. ft 8. 579 ; 4 L. J. Ch. 227 - 351, 352 
Moore, Drury v., 1 8tark. 102 - - - - - 283 

Moore v, Moore, 2 Yes. 696 ; Amb. 279 ; 1 Dick. 66 - - 27 

Moore v. Bawson, 3 B. ft C. 332 ; 5 D. ft By. 234 - - 270 

Moore v. Webster, L. B. 3 Eq. 267 ; 36 L. J. N. 8. Ch. 429 ; 

16 W. B. 167; 15 L. T. N. 8. 460 - - - - 166 

Morgan, Doe d» Haiman v., 7 T. B. 103 - - . - so 






I TABLE OF CAfiM. xlvii 

PJkflB 

Morgan, Minet v., L. B. 11 Eq. 284 ; L. B. 8 Oh. 361 * 48 L.J. 
N. S. Ch. 627 ; 28 L. T. N. 8. 673 ; 21 W. B. 467 - 252, 815 

Morgan v, Morgan, 5 Madd. 408 - - • ^^ * 166 

Morgan v, Scndamore, 2 Bep. in Ch. 184 . • • « 176 

Morgan's Case, 8 Mod. 296 - - - - - 321 

Morley v. Clifford, 20 Ch. Div. 763 ; 51 L. J. N. S. Cfc. 687 ; 46 
L. T. N. S. 661 ; 30 W. B. 606 - - - 249, 256 

Morley, Cnddon v., 7 Haie, 202 - - - - - 227 

Monice, Twining v., 2 Bro. C. C. 326 - - - - 78 

MorriB, Orogate v., 2 Biownl. 146 - - - - - 264 

Moiris V. darkflon, 3 Swan. 668 .... 182 

Morris v. Dimes, 1 A« & E. 654 - - - - - 239 

Morris, Doe d. Wood v., 2 Taunt. 62 - - - - 229 

Morris, Downe (Visct.) v., 3 Hare, 394 ; 3 L. J. N. S. Ch. 337 ; 
8 Jut. 486- - - - - - -222 

Mors V. Webbe, 1 Brownl. 180 ; 2 Brownl. 297 - - - 270 

Mono V. Faulkner, 1 Anst 11 .... 132 

Morse, Goodtitle d. Faulkner, v., 3 T. B. 366 - - 64, 148 

MosGTop, Dayidson v, 2 East, 66 - - - - 302 

Moselej, Edwards v., Willes, 192 - - - - - 200 

Modey V. Chadwick, 7 B. ft C. 47 n. - - - - 246 

Modey v. Walker, 7 B. & 0, 40 - , - - - - 245 

Monlton v. Camronz, 4 Ezch. 17 - - - - 65 

Mnnleton v. Bamett, 2 H. ft N. 663 ; 27 L. J. N. S. Ex. 125 ; 
4 Jiir. N. S. 139 130, 133, 143 

Murhall, Challoner v., 2 Yes. jnn. 624 - - 27, 165, 358 

Murrell v. Smith, 4 Bep. 24b - - - - - 202 

Mnsoott, Doe d. Twining v., 12 M. ft W. 832; 14 L. J. N. S. 
Ex. 185 162, 175, 182 

MnsgraTe v. Cave, Willes, 319 - - 16, 17, 247, 256, 258 

MosgraTe v, Inclosnre Commissioners, L. B. 9 Q. B. 162 ; 43 
L. J. N. S. Q. B. 80; 30 L. T. N. S. 160; 22 W. B. 295 - 274 

Myers v. Hodgson, 1 0. P. Div. 609 ; 46 L. J. N. S. C. P. 603; 
34 L. T. N. S. 881 ; 24 W. B. 827 - - - 382, 523 



N. 

Nanson v. Barnes, L. B. 7 Eq. 250; 20 L. T. N. S. 154; 17 
W. B. 429 83 

Nash V. Coombs, L. B. 6 Eq. 61 ; 37 L. J. N. S. Ch. 600 ; 16 
W. B.663 w -293 

Naah v. Derby (Earl of), 2 Yem. 637 - - - - 223 

Kawton, Woadson v., 2 Stra. 777 - - - - 262 

Nayler v. Strode, 2 Ch. Bep. 392 - - - - - 54 



Zlviii TABLE OF GASES. 

Naylor and Spendla's Contract, In le, 34 Gh. Diy. 217 ; 56 L. J. 
N. S. Ch. 453; 56 L. T. N. S. 132 ; 35 W. R. 219 - 104, 192 

Neal V. Jackson, 4 Bep. 26 b ; Cio. Eliz. 395 - 13, 36, 229 

Neale, Mitohel v., 2 Yes. 679 58 

Neeve v. Keck, 9 Mod. 106 - - - - - 67 

Neville's Case, 11 Eep. 17 a - - - - - 14 

Newoomen v. Barkham, 2 Vem. 729 ; Oh. Prec. 464 - - 145 

New Forest Commissioner, Mill v., 18 0. B. 60; 25 L. J. N. S. 
C. P. 213; 2 Jut. N. S. 520 237 

Newlyn, Pearoe v., 3 Madd. 186 - - - - - 75 

Newport, Hide v., cited Moo. 185 .... 350 

Newton v. Shafto, 1 Sid. 267 ; 1 Lev. 172 - - 128, 134, 141 

Nicholls V. Mitford, 20 Oh. Div. 380 ; 51 L. J. N. S. Ch. 485 ; 
30 W. B. 509 - - - - . - 297 

Nicholls V. Parker, 14 East, 331, n. - - - - 331 

Nichols, Thomas v., 3 Lev. 40 - - - - - 275 

Nicholson v. Nicholson, 1 Tarn. 319 - - - - 82 

Nickolson, TJpperton v., L. B. 6 Ch. 436 - - - 78 

Noble, Gale v., Oarth. 432 - - - - - - 2 

Noble, Bichards v., 3 Mer. 673 .... 227 

Noel V. Weston, 6 Madd. 60 - - - . - 68 

Norberow, Hewet v., 1 Buls. 62 - - - - 196 

Norfolk Bail. Co., Cooper v., 3 Exch. 646 ; 6 Bailw. 0. 94 ; 18 
L. J. N. S. Ex. 176; 13 Jur. 195 - - 107, 323, 420 

North V. Strafford (Earl of), 3 P. Wms. 150 - - 190, 212 

Northampton (Mayor, &c. of) v. Ward, 2 Stra. 1238 - - 245 

Northampton Market, Case of, cited 2 Inst. 220 - 244, 245 

Northumberland (Duke of). Grey v., 13 Ves. jun. 236; 17 
Ves. jun. 281 232 

Northumberland (Duke of) v. Houghton, L. B. 5 Exch. 127 - 243 

Northwick (Lord) v. Stanway, 3 B. & P. 346; 6 East, 56 - 14, 174, 

176, 189, 279, 284 

Nottingham, Hall v., 1 Ex. Div. 1 ; 45 L. J. N. S. Ex. 50 ; 33 
L. T. N. S. 697; 24 W. B. 58 - - - - 298 



O. 

Oakley v. Smith, 1 Eden, 261 ; Amb. 368 - - - - 118 

O'Connor, Devonshire (Duke of) v., 24 Q, B. Div. 468; 59 
L. J. N. S. a B. 206; 62 L. T. N. S. 917 ; 38 W. B. 420 - 240 

Odiham v. Smith, Cro. Eliz. 589 - - - - 203 

Ohmd V. Burdwiok, Cro. Eliz. 460 - - - - - 159 

Oland'sCase, 5Bep. 116 a - - - - -163 

Oldfield, Orowder v., 6 Mod. 19 ; 1 Salk. 170 - -269, 337 



TABLB OF CASES. zlix 

OHyer v. Taylor, 1 Atk. 474 - - - - • 50 

Olley, Doe d. Garrod v., 12 A. ft E. 481 ; 4 P. ft D. 275 - - 346 

Onslow (Lord), Lasoelles v., 2 a B. Diy. 433 ; 46 L. J. N. S. 
Q. B. 333 ; 36 L. T. N. S. 459; 25 W. B. 456 - 279, 339 

Qrdeway v. Orme, 1 Buls. 183 - - - - - 260 

Orme, Qrdeway v., 1 Buls. 183 - - - - 260 

Osborne, Matthew v., 13 0. B. 919 ; 22 L. J. N. S. C. P. 241 ; 
17 Jut. 696 64 

Osborne v. Steward, 3 Mod. 230 - - - - 199 

Otway V. Hudson, 2 Vem. 583 - - - - 27, 161 

Onndle Manor (Lord of), Bex v., 1 A. ft E. 283; 3 N. ft M. 
484; 3 L. J. N. S. K B. 117 ... 24, 60, 89 

Owen V. Be Beauyoir, 16 M. ft W. 547 ; 5 Exch. 166 (Ex. 
Cb.) 214, 216, 217 

Owen, Thorp v., 2 Sm. ft G. 90 ; 18 Jur. 441 ; 2 W. B. 208 - 137 

Owen V. Wynn, 9 Oh. Diy. 29 ; 38 L. T. N. S. 623 ; 26W.B.644 315 

Oxley V. Watts, 1 T. E. 12 - • - - - 241 



P, 

Padkhnrst^ Smith v., 3 Atk. 135 - - - - 230 

Packington, Boraeford v., 1 Leon. 1 - - . 162, 224 

P^wick tf. Tyndale, 1 E. ft E. 184 ; 28 L. J. N. S. Q. B. 90 ; 
33 L. T. N. S. 125 ; 5 Jnr. N. S. 476; 7 W. B. 53 - 201, 526 

Page V. Dnberley, 2 T. B. 391 - - 250, 275, 277, 279, 280 

Page's Caae, Gro. Jac. 671 - - - - - 44 

Pain V. Herbert, cited 2 Eeb. 158 130 

Palmer, Griffin v., 1 Brownl. 43 - - - - 325 

Palmer, Pairott v., 3 Myl. ft K. 639 - - - - 227 

Paramore tf. Greenslade, 1 Sm. ft G. 541; 23 L. J. N. S. Ch. 34 ; 
17 Jnr- 1064 . 76 

Pkrk, Cannon v., 2 Eq. Gas. Abr. 226 - - . . 66 

Parke, Doe d, Danson v., 4 A. ft E. 816 - - - 51 

Parker v. Bleeke, Cro. Oar. 568 - - - - - 165 

Parker v. Gage, 1 Show. 81 - - - - 199, 203 

Parker v. Eett, 12 Mod. 467 - - - - - 310 

Parker, Nicholls v., 14 East, 331, n. - * - - 331 

Ptoker, Boe d. Beebee v., 5 T. B. 26 - - 338, 339, 343 
P&rkyns {or Perkins) v. Titos, Garth. 12 ; 3 Mod. 132 - 173, 175 

PhoTott V. Pahner, 3Myl. ft £. 639 - - - - 227 

P&rry v. Thomas, 5 Ex. 37 - - - - - 260 

Parsons, Att-Gen. v., 2 Or. ft J. 279 ; 2 Tyr. 223 - 11, 239 

Parsons, Zonoh d> Abbott v., 3 Burr. 1794 - . . 55 

B. d 



1 TABLB OF CA8S8. 

PAfiB 

Passingliam v. Pitty, 17 C. B. 299^ 26 L. J. N. Ek 0. P. 4; 2 
JtiT. N. S. 837 - - - - - - 6, 824 

Pasfcon V. TJtbert, litt. Bep. 264 ... 223,228 

Paterson, Qreen v., 32 Oh. Piv. 9/^ ; 66 L. J. N. S. Gh. 181 ; 64 
L, T. N. S. 738 ; 34 W. E. 724 - - - r 30, 346 

Paterson v. Mills, 19 L. J. N. S. Ch. 310 - - - 143 

Patorson v. Paterson, L. B. 2 Eq. 31 ; 36 Beay. 606 ; 12 Jur. 
N; S. 408 ; 14 W. E. 601 ; 14 L. T. N. S. 320 - - - 99 

Pateson v. Danges, 1 £eb. 287 .... 153 

Patrick y. Stubbs, 9 M. & W. 830 ; 11 L. J. N. 8. Ex. 281 - 274, 276 

Paulter v. Gornhill, Cro. Eliz. 361 - - - - 167 

PawBon, Eerr v., 26 Beay. 394 ; 27 L. J. N. S. Ck 694 ; 4 Jut. 
N. S. 425 416,416,628 

Payne v. Barker, 0. Bridg. 18 - - 66, 130, 133, 139 

Payne, Shepherd v., 12 0. B. N. S. 414 - - - - 322 

Peach, Baldwin v., 1 Y. & G. Ex. 463 - - - - 218 

Peachy, Somerset (Puke of), 1 Stra. 447 ; 2 Eq. Gas. Abr. 222 ; 
6 Vin. Abr. 117 ; Prec. Oh. 668 - -' - 223, 227, 229 

Peacock, Grymes v., 1 Buls. 17 - - - 268, 367 

Peacock, Whitton v., 3 MyL & K. 326 - - 123, 219, 224 

Peaice v. Newlyn, 3 Madd. 186 .. - • - - 76 

Pearoy, Wells v., 1 Bing. N. G. 666 - - - - 262 

Peardon v. Underbill, 16 Q. B. 120 ; 20 L. J. N. S. Q. B. 133 ; 
15 Jut. 466 266,272 

Peek v. Spencer, L. E. 6 Gh. 648 ; 39 L. J. N. S. Gh. 638 ; 18 
W. E. 668 - 267 

Peer v. Humphrey, 2 A. & E. 496 - - - - 203 

Pemberton, Wirty v., 2 Eq. Gas. Abr. 279- - - 202, 209 

Pemble v. Sterne, T. Eay. 166 - - - - - 349 

Pembroke, Taylor v., cited 2 B. & Ad. 364 - - 179, 180 

Pendleton, Ghapman v., 2 Brownl. 293 - - 199, 204 

Penhallow, Smartle v., 6 Mod. 63 ; 3 Salk. 181 ; 2 Ld. Eaym. 
994 - -40,42 

Pennant, Firebrass d. Symes v., 2 WilB. 264 - - - 49 

Pennifather, Gkrke v., 4 Eep. 23 b - 47, 48, 74, 148, 149 

Penny, Valentine v., Noy, 146 ... 260, 266 

Penryn (Mayor, &o. of) v. Best, 3 Ex. Diy. 292 - - - 246 

Peppin, Shakespear v., 6 T. E. 741 - 126, 260, 276, 279 

Perkins v. Titus. See Parkyns v, Titus. 

Peter v. Knoll, Gro. Eliz. 32 198 

Petty V, Eyans, 2 Brownl. 40 - - - - - 36 

Petty V. Wase, Winch, 3 94 

Philips V. Brydges, 3 Ves. jun. 120 - - - - 27 

PhiUips V. BaU, 6 G. B. N. S. 811 ; 29 L. J. N. 8. G. P. 7; 6 
Jut. N. S. 48 - - - -13, 50, 93, 324, 363 



TABLE OP CASES. U 

PAOa 
Fhmips V. Hudson, L. R 2 Gh. 243 - - -332, 334 

PhiUips V. Smiih, 14 M. A W. 589 ; 15 L. J. N. S. Ex. 201 - 225, 

227 
Fhmippe, Freeman tf., 4 M. & S. 486 - 173, 174, 330, 339 

Phypers v.Ebum, 3 Soott, 634 ; 3 Bing. N. 0. 250 ; 2 Hodges, 
230; 6L. J. N. S. 0. P. 20 - - - - - 185 

Pickard, Twynam v., 2 B. ft Aid. 105 - - - - 123 

PickersgOl v. Grey, 30 Beay. 352 ; 31 L. J. N. S. Gh. 394 ; 8 Jnr. 
N. 8. 632: 10 W. E. 207 ; 5 L. T. N. 8. 706 - - - 21 

Pile, Howard v., L. B. 5 Oh. 214; 41 L. J. N. 8. Oh. 778; 26 
L. T. N. 8. 900; 20 W. B. 736 - - - - 432 

PiDdngton, 8taii}iop t^., 1 Sid. 314 27 

Pilkington, York (Mayor of) v., 1 Atk. 282 - - - 266 

Pindar v. Wadswortih, 2 East, 154 266 

Pinsent's Case, cited 1 Preem. 494 - - - - 177 

Pitts V. Eongsbridge Highway Board, 19 W. B. 884 ; 25 L. T. 
N. 8. 195 260 

Pitty, PaBHinghaTn v., 17 0. B. 299; 25 L. J. N. 8. C. P. 4; 2 
Jnr. N. 8.837 6,324 

Plaxton V. Dare, 10 B. & 0. 17 - - - - - 335 

Plaxton, Lake v., 10 Ex. 196 ; 24 L. J. N. 8. Ex. 52 - - 279 

Player v. Boberts, W. Jon. 243 - - - • • 232 

Playters v. Abbott, 2 MyL & K 97 ; 3 L. J. N. 8. Oh. 57 - 189 

Pleydell v. Gosmoor, Hntt. 66 - - - - - 241 

Podger's Oaae, 9 Bep. 104a ... 54, 62, 124, 184 

Polley y. PoUey, 31 Beav. 363 137 

Popbam V, Lancaster, 2 Bep-. in Ob.- 134 ... 176 

Porter v» Porter, Gro. Jac. 100 - - - - - 84 

Porter v. Sacbeyerill, Cro. Oar. 482 - - - - 268 

Portland (Duke of) v. Hill, L. B. 2 Eq. 765; 35 L. J. N. 8. 
Ob. 439 ; 12 Jnr. N. 8. 286 ; 15 W. B. 38 - 2, 237, 250, 

324, 340 

Partman v. Seymour, 9 Mod. 280 - - - - 83 

Potts, Doe d. Gibbon v., 2 Dongl. 710 - - * - 351 

PowdreU v, Jones, 2 Sm. & G. 407; 24 L. J. N. 8. Gb. 123 - 165 

Powell, Pricbard v., 10 Q. B. 589 ; 15 L. J. N. 8. a B. 166 ; 
10 Jnr. 154 252, 331 

Powell, Beg. v., 1 Q. B. 352; 4 P. & D. 719; 5 Jnr. 605 - 72 

Powis (Earl of), Lloyd tr., 4 E. ft B. 485 - - - - 274 

Pratt V. Groome, 15 East, 235 - - - - - 15 

Prawie, Boyd v., 14 W. B. 1009 ; 14 L. T. N. 8. 753 - - 30 

Preston, Holder, d. Snlyard v., 2 Wils. 400 - - 88, 89, 191 

Preston V. Jeryis, 1 Vem. 325 - - - - - 129 

Pretty v. Solly, 26 Beay. 606 416 

Price V. Macanlay, 2 De G. M. & G. 339 ... 78,219 

d2 



lii TABLE OF GASES. 

PAQB 

Price V. WoodhouBe, 3 Ezch. 616 ; 18 L. J. N. S. Ex. 271 - 339 

Frichaid v. PoweU, 10 Q. B. 589; 16 L. J. N. S. Q. B. 166; 
10 Jup. 164 262, 331 

Priokett, Steel v., 2 Stark. 463 ... 280,328 

Protheroe, Dameiell v., 10 Q. B. 20 ; 16 L. J. N. S. Q. B. 170; 
llJur. 331 6,200 

Proude, Qreen v., 1 Mod. 117 - - - - - 326 

Pryoe v. Bury, 2 Dr. 11 - - - - - 82 

Pullen V, Middleton (Lord), 9 Mod. 483 - - - - 22 

Pulvertoft V. Pulvertoft, 18 Ves. inn. 84 - - - 66 



Queen's College, Oamliridge, £x parte, 27 L. J. N. S. Ch. 178 ; 
4 Jut. N. S. 19 404 

Queen's OoUege, Oxford t;. Hallett, 14 East, 489 - - 276 

Queen's College, Oxford, Warrick v., L. B. 6 Ch. 716 ; L. B. 
10 Eq. 106 ; 40 L. J. N. S. Ch. 780; 26 L. T. N. S. 264 ; 19 
W. B. 1098 - - - 6, 249, 260, 261, 267, 267, 316 

Queinton, Kite v., 4 Bep. 26a - - - - 68, 94, 347 

Quinlej, Sympson v., 1 Vent. 88 - - - - 128, 134 



B. 

Badford, Dugworth v„ W. Jon. 462 -> - - - 361 

Badford v. Wilson, 3 Atk. 816 - - - - - 27 

Baindle, Brown v., 3 Ves. jun. 266 - - - 63, 67, 166 

Bainer, Yaxley v., 1 Ld. Baym. 44 - - - - 196 

Bandall, Chantrell v., 1 Lev. 20 - - - 169, 221 

Bandall v. Jenkins, 1 Mod. 96 - - - - - 138 

Bandall v. Soory, Cro. Car. 813 - - - . 207 

Bandfield v. Bandfield, 3 De G. E. & J. 766; 1 Dr. & Sm. 310; 
31 L. J. N. S. Ch. 113; 8 Jur. N. S. Oh. 161 ; 6 L. T. N. S. 
698 ------ 73, 186, 186 

Banger, Ashmead {or Ashmond) v., 1 Ld. Baym. 661 ; 12 Mod. 

378; 2 Salk. 638; 1 Com. 71 - - - - 231 

Batdiffe v. Chaplin, 4 Leon. 242 - - - .-194 

Baw, Hayward v., 6 H. & N. 308; 30 L. J. N. S. Ex. 173; 4 
L. T. N. 8. 619 - - - - 62, 174, 176, 191 

Baw, Lowther v., 2 Bro. P. 0. 461 - - -171,343 

Bawes v. Bawes, 7 Sim. 624 ; 6 L. J. N. S. Ch. 114 - - 314 

Bawlins, Brown {or Bourn) v., 7 East, 409 ; 3 Smith, 406 - - 6 

Bawlinson, Green v., Poph. 127 ; 3 Buls. 237 - - - 191 



TABLV 07 0A8B8. lui 

PAGE 

Bawson, Moore II. 3 B. ft C. 332; 5 D. ft By. 234- - - 270 

BawBon, Bnmsey v., 2 Keb. 410 - - - • 262 

Bebow V. Biokerion, Tiin. 7 Qeo. L, Exch., cited Bob. Gay. 

100 138 

Bee0,EYanBi;., lOA^ftE. 161; 2P. ftD. 626 - - - 332 

Beeye, Bennett tf., WiUes, 227 - - - - 258 

Beeye v. Malster, Ore. Oar. 410 - - - 129, 140, 146 

Beeyee, Hardy v., 4 Ves. jun. 466 - - - - 227 

Beg. V. Agardsley Manor (Lord of), 5 Dowl. 19 - - - 72 

Beg. V. Bedfordshire (Inhabitants of), 4 E. ft B. 535 - 329, 330 

Beg. V. Bishop's Stoke Manor (Lord of), 8 Dowl. 608 ; 4 Jnr. 
630 - 52,312 

Beg. V. Bucdengh (Duchess), 6 Mod. 150 ; 1 Salk. 358 ; Holt, 
128; 2 Ld. Baym. 792 10 

B^. V. Ghorley, 12 a B. 515 ; 12 Jur. 822 - - 270, 271 

B€^. V. Ck>rbett, 1 E. ft B. 836; 22 L. J. N. 8. Q. B. 335 ; 17 
Jnr. 1024 61, 73, 90, 183 

B^. V. Dendy, 1 E. ft B. 829; B. 0. C. Ill; 22 L. J. N. S. 
a B. 39, 247 ; 17 Jur. 970 - « - - 72, 150 

Beg. V. Dudley (Earl of), a B. Diy. June, 1884 - 88, 188 

Beg. V. I>ullingham Manor (Lady of), 8 A. &E. 858; 1 P. &D. 
172; 1 W. W. ft H. 865 185 

Beg. V. Eton College, 8 a B. 526 - - - 52, 187, 322 

Beg. V. Eyans, 1 Q. B. 355, n - - - - - 72 

B^. V. Eyerdon Manor (Lords of), 16 L. J. Q. B. N. S. 18 - 187 

Beg. V. Garland, L. B. 5 a B. 269; 39 L. J. N. S. Q. B. 86; 
22 L. T. N. 8. 160 ; 18 W. B. 429 - - - 72, 88, 188 

Beg. V. Hale, 9 A. ft E. 359 ; 1 P. ft D. 293; 8 L. J. N. 8. 
Q. B. 83 230 

Beg. V. Ingleton Manor (Lords of), 8 Dowl. 693 ; 4 Jur. 700 - 29 

B^. V. Land Oonmussioners for England, 23 Q. B. Div. 59 ; 58 
f . J. N. 8. a B. 313; 37 W. B. 538 - - - 395, 559 

Beg. V. Powell, 1 a B. 352; 4 P. ft D, 719; 5 Jur. 605 - 72 

Beg. V. Begistrar of Deeds for Go. of Middlesex (Lord Truro), 
21 a B. Diy. 535 (0. A.) ; W. N. (1888) 91, 158 - - 359 

Beg. V. Truro (Lord). See Beg. v, Begisbrar of Deeds for Go. 
of Ifiddlesex. 

Beg. V. Wanstead Manor (Lord ol), 23 L. J. Q. B. N. 8. 67 ; 
18 Jur. 310 92, 188 

B^. V. Weedon Beck Manor (Lords of), 13 Q. B. 808 ; 18 L. J. 
N. S. Q. B. 289; 13 Jur. 1121 96 

Beg. V. WeUeeley (Lord), 2 E. ft B. 924 - - 152, 188 

Beg. V. Wilson, 3 B. ft 8. 201 ; 32 L. J. !N^. 8. a B. 9 ; 9 Jur. 
N. 8. 439; 7 L. T. N. 8. 326; 11 W. B. 70 - -89, 191 

Beg. V. 'V^^tohf ord Manor (Steward of), 7 Dowl. 709 ; 3 Jur. 
533 -72 

Beg. tf. Woodham Walter Manor, 10 B. ft 8. 439 - - - 186 



liV TABLE OF GASES. 

PAGE 

Begistrar of Deeds for Co. of Middlesex (Lord Truro), Bag. v., 
21 Q. B. Div. 636 ; W. N. (1888) 91, 168 - - - 359 

Bennett, Bex v., 2 T. B. 197 - - - - - 150 

BeveU v. JoddieU, 2 T. B. 416 - - - - 289 

Bex V. Allgood, 7 T. B. 746 316 

Bex V. Banks, 3 Burr. 1462 - - - - - 302 

Bex V. Bonsall Manor (Lord of), 3 B. ft 0. 173; 4 D. & By. 
826 -183,322 

Bex V. Boughey, 1 B. & 0. 666 - - - - 178 

Bex v. Brewers' C!o. (Masterof), 3B. &0. 172; 4 D.& By. 492- 160 

Bex V. Capper, 6 Price, 217 - - - - - 12 

Bex V. Coggan, 6 East, 431 ; 2 Smith, 431 - - 72, 182 

Bex V. OotteriU, 1 B. & Aid, 67 - - - - 244 

Bex V. Dickenson, 1 Wms. Saund. 136 - - - - 302 

Bex V, Hayeruig-atte-Bower Manor (Steward of), 6 B. & Aid. 
691 336 

Bex V. Hemingway, 1 Bamaid* 436 - - - - 306 

Bex V. Hendon Manor (Lord of), 2 T. B. 484 - - 64, 72, 190 

Bex v. Hexham Manor (Lord of), 6 A. &£. 669; 1 N.SP.63; 
2 H. & W. 397 ; 6 L. J. N. S. K. B. 33 - - - 69, 89 

Bex V. Hoyte, 6 T. B. 430 329 

Bex V. Hundred of Milverton (Lord of), 3 A. & £. 284 - - 302 

Bex V. Joliffe, 2 B. ft C. 64; 3 D. ft By. 240 - - 302, 340 

Bex V. Lucas, 10 East, 236 .... - 314 

Bex V. Meer and Forton Manor (Lord of), 2 D. ft By. 824 - 178 

Bex V. Merchant Tailors' Co. (Master, &c. of), 2 B. ft Ad. 116 - 314 

Bex V. Mildmay (Lady), 6 B. ft Ad. 264; 2 N. ft M. 778 - - 224 

Bex V. Milton (Inhabitants of), 1 C. ft E. 68 - - - 336 

Bex V. Oundle Manor (Lord of), 1 A. ft E. 283 ; 3 N. ft M. 
484 ; 3 L. J. N. S. £. B. 117 - - - 24, 60, 89 

Bex V. Bennett, 2 T. B. 197 - - - - - 160 

Bex V. Bigge, 2 B. ft Aid. 660 312 

Bex V. Bowland, 3 B. ft Aid. 130 - - - - 302 

Bex V. Smith, 4 Esp. Ill 244 

Bex V. Southwood, 6 Man. ft B. 414 - - - - 83 

Bex V, Stanton, Cro. Jao. 269 - - - - 14, 300 

Bex V. Thruscross (Lihabts. of), 1 A. ft E. 126; 3 N. ft M. 284 347 

Bex V. Tower, 4 M. ft S. 162 314 

Bex V. Warblington (Lihabts. of), 1 T. B. 242 - - - 282 

Bex V. Wilby (Lihabts. of), 2 M. ft S. 604 - - - 169 

Bex V. Willes, 3 B. ft Aid. 610 224 

Bex V.Wilson, 10 B. ft 0. 80; 6 Man. ft B. 140; 8 L. J. K B. 
101 83, 88, 89, 91, 160 

Beynolds v, Woodham Walter Manor (Lord of), L. B. 7 C. P. 
639 ; 41 L. J. N. S. C. P. 281 ; 27 L. T. N. S. 374 - 394. 396, 

626, 626, 632 



TABLE Oy CABV8. Iv 

PAOB 



Bliodes, Barlow v., 1 Or. & Meee. 439 - - - . 269 

Itidiards v, Bassett, 10 B. <& 0. 657 - - - 307, 333 

Bicharda, Jones v., 6 A. & E. 630; 2 N. &P. 747; W. W. & D.' 

•276 - r - - - . . .262 

Bichardfl v. Noble, 3 Mer. 673 - - - - . 227 

Bichapdflon, Glaas v., 2 De G. 1£ & G. 658; 22 L. J. N. 8. Ch. 

105; 17 Jup. 926 88, 89, 191 

Bichardson v. Kenait, 5 M. & Gr. 485; 6 Soott, N. B. 419 : 12 
L. J. N. S. C. P. 154 - - . - . . 177 

Bichardson v. Kensy, Cro. Eliz. 728 - - - - 35 

Biddell v, Jenner, 10 Bing. 29 - - - . _ 160 

Bidden v. Biddell, 7 Sim, 529; 5 L. J. N. S. Ch. 132 - - 74 

Bider V. Wood, 1 K. & J. 644 ; 24 L. J. N. 8. Ch. 737 -130,139 
Bigg V. Lonsdale, 11 Exoh. 654 ; 1 H. & N. 923 (Ex. Ch.) ; 26 

L. J. N. S. Ex. 196; 3 Jnr. N. 8. 390 - - - 16 

Bigge, Bex r., 2 B. & Aid. 650 312 

Bight d. W^lls (Dean and Chapter of) v. Bawden, 3 East, 

260 - - 41,69,602 

Bippon, Durham (Bishop of) v., 4 L. J. Ch. 32 - - - 228 

Bivers (Lord) w. Adams, 3 Ex. Div. 361 ; 48 L. J. N. 8. Ex. 

47; 39 L. T. N. 8. 39; 27 W. B. 381 - - . 261 

Bivet V. Dovne, 2 Brownl. 279 - - . . - 211 

Bivef 8 Case, 4 Bep. 22 b - - - - 157,167 

Boberts v. DixweU, 1 Atk. 607 - - - - J 140 

Boberts, Deed. King Wm. IV. »., 13 M. A W. 520 - - 334 

Boberts, Players v., W. Jon. 243 - - . - - 232 

Bolrin, Jones v., 10 Q. B. 620; 17 L. J. N. 8. a B. 122; 12 

Jnr. 308- - - . - . .252 

Bobbins, Hoakins v., PoUexf . 13 ; 2 Wms. 8annd. 320 - 255, 275 
Bobertson v. Hartopp, 43 Ch. Div. 484 ; 59 L. J. N. 8. Ch.' 

653 ; 62 L. T. N. 8. 585 - - - 264, 266, 279 

Bobmson v, Dnleep Singh, 11 Ch. Div. 798 ; 48 L. J. N. 8. Ch. 

758 ; 39 L. T. N. 8. 313 ; 27 W. B. 21 - 246, 247, 274, 279 

Bobinson, 8elby v., 2 T. B. 768 - . - - 260 

Bobinson, Wray v., L. B. 1 C. P. 490; 14 L. T. N. 8. 434 - 240 
Boby V. Twelves, 8ty. 423 - - - . . 59 

Boebock, Calcraft v., 1 Yes. jon. 221 - - . . 78 

Boe d. Ashton v, Hutton, 2 Wils. 162 - - . . 156 

Boe d, Beebee V. Parker^ 5 T. B. 26 - - 338, 339, 343 

Boe d. Bennett v. Jeflery, 2 M. & 8. 92 - 27, 237, 338, 345 

Boe d. Cosh v. Loveless, 2 B. & Aid. 453 - - 50, 63 

Boe d. Crow If. Baldwere, 5 T. B. 104 - - - - ' 26 

Boe d. Hale v. Wegg, 6 T. B. 708 - . . .351 

Boe d, Jeffreys v. Hidks, 2 Wils. 13 - . ' - 80, 224 

Boe d. Johnson v. Ireland, 11 East, 280 « 153, 219, 338, 355 



Ivi TABLE OF 0ASB9. 

PA0X 

Boe d. Noden v. Qrifflts, 4 Burr. 1952 - - - 62, 183 

Boe d. Parry v. Hodgson, 2 Wils. 129 - - - - 169 

Boe, Doe d. Bast v., 2Biiir. 1046- - - - - 325 

Bogers, Be, L. B. 1 C. P. 47 56 

Bogers v. Allan, 1 Gamp. 309 - - - . . 335 

Bogers v. Birkmire, 2 Stra. 1040 ; Lee temp. Hardw. 245 - 200, 203 

Bogers v. Wood, 2 B. & Ad. 245 330 

Booper v. Harriflon, 2 K. & J. 86 - - - - 12 

Bose V, Ounynghame, 11 Yes. jnn. 550 - - - - 67 

Botherham v. Qreen, Gro. Eliz. 594 - - - - 270 

Bowbotham v. Wilson, 8 H. L. Gas. 348; 30 L. J. N. S. Q. B. 
49; 6 Jur. N. S. 965 - - - - - - 234 

Bowden, Kellow v., 1 Show. 244 - - - - 141 

Bowden v. Malster, Gio. Gar. 42 - - - - - 122 

Bowe V. Brenton, 8 B. ft G. 737 ; 3 Man. ft By. 361 45, 333, 343 

Bowe, Galmady v., 6 B. ft G. 861 - - - - * 328 

Bowknd, Bex v., 3 B. ft Aid. 130 - - - - 302 

Bowles, Ellis v., Willes, 638 276 

Bowles V. Mason, 1 Brownl. 132 ; 2 BrownL 85 - 235, 342 

Bowleston v, Alman, Gro. Eliz. 748 - - - - 197 

Bowley, Appleton v., L. B. 8 Eq. 139 - - - - 166 

Bmnney v. Eve, 1 Leon. 100 - - - - - 154 

Biimsey v. Bawson, 2 Keb. 410 - • - - 262 

Bundle v. Bundle, 2 Yem. 264 - - - - . 41 

Byder, Li re, 20 Gh. Div. 514 ; 30 W. B. 417 - - 414, 532 



S. 

Sacheyerill v. Porter, Gio. Gar. 482 - - - - 268 

Sadgroye, Kirby v., 1 B. ft P. 13 ; 6 T. B. 483; 3 Anst. 892 - 263, 

264, 273, 275 
St. Paul V, Dudley (Yisct.), 15 Yes. jun. 167 - - 351, 352 

Salisbury d, Gooke v. Kurd, Gowp. 481 - - 160, 165 

Salisbury (Marq. of) v. Gladstone, 9 H. L. Gas. 692 ; 34 L. J. 
N. S. G. P. 222 ; 8 Jur. N. S. 625 ; 4 L. T. N. S. 849 ; 9 W. B. 
930 ; affirming 6 H. ft N. 123 - 19, 208, 233, 234, 236, 252, 342 

Salisbury (Marq. of) and London ft N. W* Bail. Go., Li re, 
(1892) 1 Oh. 75, n. ; 66 L. T. N. S. 63, n. - - - 418 

Salisbury's (Lord) Gase, 1 Ley. 63 - - - - 153 

SaUitt, Hicks v., 3 De G. M. ft G. 782 ; 22 L. J. N. S. Gh. 571 ; 
18 Jur. 915 - - - - - - 13, 91, 275 

Sanders, Doe d. Duke of Norfolk, 3 Dougl. 303 - - - 161 

Sands, Att-Gen. v., Hardr. 488 ; 3 Gh. B. 33 - - 221 

Sands v. Drury, Gro. Eliz. 814 • - - - - 16 



••* 



TABLE OF CASES. IvU 

PAGB 

Sands v, Hempston, 2 Leon. 109 - - - - 49 

Sandys (Lord), Haidwicke (Earl) v., 12 M. ft W. 761 - - 196 

Sandys Hougham v,, 6 L. J. Gh. 67 - - - - 140 

Sanndera v. Welch, cited 1 Salk. 57 - - - - 325 

Savage's Case, 2 Leon. 109 - - - - - 167 

Sawyer, Wame v., 1 EoU. E. 48 - - - - . 173 

Scales, Curtis v., 14 M. ft W. 444 ; 14 L. J. N. S. Ex. 318 - 179, 196 

Scamon v. Maw, 3 Bing. 378; 11 Moore, 243 ; 4 L. J. 0. P. 97 56 

School Board for London, Ex parte. In re Hart, 41 Ch. Diy. 
647; 68 L. J. N. S. Ch. 752 ; 60 L. T. N. 8. 817; 38W. E. 
61 27,368 

Schwinge v. Dowell, 2 F. ft F. 846 - - - - 282 

Soory, Bandall v., Cro. Car. 313 - - - - 207 

Scott, Benson v., 4 Mod. 251 ; 12 Mod. 49 ; Garth. 275 ; Comb. 

233; 3 Ley. 386 ; 1 Salk. 186 ; Skin. 406 - 63, 160, 165 

Scott, Cape v., L. E. 9 a B. 269 ; 43 L. J. N. S. a B. 65 ; 30 
L. T. N. S. 87 ; 22 W. E. 326 - - - 252, 266 

Scott V. Fawoet, Dick. 299 118 

Scott v. Kettlewell, 19 Yes. jnn. 336 - - - - 163 

Scratton v. Brown, 4 B. ft C. 485; 6 D. ft Ey. 536 - - 243 

Scodamore, Clement v., 1 P. Wms. 63; 6 Mod. 120 - 128, 130, 

134, 141, 144, 146, 167 

Scodamore, Morgan v., 2 Eep. in Ch. 134 - - - - 176 

ScuUy, Archbold v., 9 H. L. 0. 360; 7 Jur. N. S. 1169 - 214 

Scutt, Attree v., 6 East, 476 ; 2 Smith, 449 187, 204, 205, 206 

Seaman v. Woods, 24 Beav. 372; 27 L. J. N. S. Ch. 538 ; 4 
Jnr. NT. 8. 725 91 

Seorle v. Cooke, 43 Ch. Div. 519 ; 59 L. J. N. S. Ch. 259; 62 
L.T. N. S. 211 . - . • 228,400,417,660 

Sebright, Carter v. 26 Beay. 374 ; 28 L. J. N. S. Ch. 411 ; 6 
Jnr. N. S. 286 ; 7 W. E. 225 189 

Selby, Dayiee v., Cro. Eliz. 826 .... 161 

Selby V. Eobinson, 2 T. E. 768 260 

Seymour, Portman v., 9 Mod. 280 - - - - 83 

Shafto, Newton v., 1 Sid. 267; 1 Ley. 172 - 128, 134, 141 

Shakespear v. Peppin, 6 T. E. 741 - - 126, 250, 275, 279 

Sharbrook, Hull v., Cro. Jac. 36 - - - - 68 

Sharpe v. Beohenowe, Lntw. 398 - - - - - 246 

Shaipe, Chapman v., 2 Show. 184 - - - - 201 

Shaw, Dickens v., Hall, Sea Shore (ed. 1875), App. - - 242 

Shaw V. Taybr, Hob. 176 - - - - - 203 

Shaw V. Thompson, 4 Eep. 30b - - - - - 163 

Shelley v. Mason, cited 6 Yin. Abr. 112, 114 - - - 229 

Shelton, Doe (f . Shelton v., 3 A. ft E. 266 ; 4 N. ft M. 857 - 56 
Shepherd v. Payne, 12 C. B. N. S. 414 - • - - 322 



tviii TABLE OF GAflER. 

PAGB 

Sheppard v. Woodford, 5 M. ft W. 608 ; 9 L. J. N. S. Ex. 90 - 182, 

184 
Shirland v. White, cited Co. Litt. 122a - - - 274 

Shirley, Ex parte, 5 Bing. N. S. 226 ; 7 DowL 268 ; 3 Jur. 
125 - - - - - - - - 66 

Shorditch, Standred v., Oro. Jac. 680 - - - - 266 

Shuttlewoith v. Gamett, Garth. 90 - - - - 189 

Shuttleworth v. Le Fleming, 19 0. B. N. S. 687 - - - 269 

Silva, Tilbury v., 46 Oh. Div. 98 ; 63 L. T. N. S. 141 260, 368 

Sime, Qraham v., 1 East, 632 - - - • 76, 190 

Simonds v. Lawnd, Oro. Eliz. 239 - - - - 79 

Simpson, Irwin (Yisct.) v., 7 Bro. P. 0. 306 - - - 334 

Singer, Oarr v., 2 Yes. 603 - - - • - 27 

Sisson, Doe d. Forster v., 12 East, 62 - - - - 339 

Sitwell, Att.-Gen. v., 1 Y. ft 0. Ex. 669; 6 L. J. N. S. Ex. 
Eq. 86 - - - - - - - 12 

Slack, Oowlam v., 16 East, 108 .... 269 

Sleeman, Doe d. Molesworth v., 9 Q. B. 298 ; 16 L. J. N. S. 
Q. B. 338 ; 10 Jur. 668 - - - - - - 329 

Smalley, Everall v., 1 Wils. 26; 2 Stra. 1197 - - - 27 

Smart, Johnson v., 1 Bo. Abr. 608, pL 14 - - - - 36 

Smart v. Smart, In re Smart, 18 Oh. Diy. 166 ; 30 W. E. 43 - 126, 134 
Smartle v, PenhaUow, 6 Mod. 63 ; 3 Salk. 181 ; 2 Ld. Baym. 994 

40, 42 
Smith V. Adams, 18 Beay. 499; 6 De Q, M. ft Q. 712; 24 L. J. 

N. S. Oh. 258; 18 Jur. 968 - - - -69, 168, 162 

Smith V, Baker, 1 Atk. 385 - - . . . 43 

Smith V, Barrett, 1 Sid. 161 - - - - . 286 

Smith, Beaufort (Duke of) v., 4 Exch. 460 ; 19 L. J. N. S. Ex. 97- 333 
Smith V. Brownlow (Earl), L. B. 9 Eq. 241 ; 21 L. T. N. S. 

739 ; 18 W. B. 271 - - - - 260, 267, 276 

Smith, Exeter (Earl of) v., Oarter, 177 ... 302 

Smith V, Feyerell, 2 Mod. 6 - - - -269, 264 

Smith V. Qarland, 2 Mer. 128 - - - . . 66 

Smith, Heydon v., 13 Bep. 67 - - - - - 231 

Smith, Marsh v., 1 Leon. 26 - - . . . 10 

Smith, Murrell v., 4 Bep. 24 b - - - - . 202 

Smith, Oakley v., 1 Eden, 261 ; Amb. 368- - - - 118 

Smith, Odiham v., Oro. Eliz. 689 .... 203 

Smith V. Packhurst, 3 Atk. 136 - - - . - 230 

Smith, Phillips v., 14 M. ft W. 689; 16 L. J. N. S. Ex. 201 226, 227 
Smith, Bex v., 4 Esp. Ill - - - - . . 244 

Smith, Sowerby v., L. B. 9 0. P. 624 ; 43 L. J. N. S. 0. P. 

290; 31L. T. N. S. 309; 23W.B.79 - - -240 

Smith, Symms v., Oro. Oar. 299 - - - . . 53 



XABLB OF CA9BJ9. lix 

PAOX 

Smith V. TriggB, 1 Stra. 487 - - - - - (H 

Smith, Tyson v., 9 A. & B. 406 ; 1 P. & D. 307 ; W. W. A D. 
749 - 237,246 

Smith's Oaae, W. Jon. 272 282 

Smithflon v. Gage, do. Jac. 526 - - - - - 66 

Snag V. Fox, Palm. 342 - - - - - 204 

Snape, Gibbons v., 1 De G. J. & S. 621; 32 Beay. 130; 33 
L. J. N. S. Ch. 103 ; 9 Jnr. N. S. 1096 ; 9 L. T. N. 8. 132 ; 
11 W. R. 1087 30 

Sneyd v. Sneyd, 1 Atk. 442 362 

Snook V. Mattock, 6 A. ft E. 239 - - - 61, 61 

Saow V. GutiLer, 1 Keb. 667 • - - - - 346 

Soone V. Iieland, 10 East, 269 - - - - 10, 301, 327 

SoUy, Prttty v., 26 Beay. 606 - - - - - 416 

Somerset (Duke of) v. France, 1 Stra. 664-40, 171, 183, 343 

Somerset (Dnke of), Peachy v., 1 Stra. 447 ; 2 Eq. Gas. Abr. 
222 ; 6 Yin. Abr. 117 ; Free. Oh. 668 - - 223, 227, 229 

Sonthwood, Lock v., 1 Myl. & Gr. 441; affirmed H. L. nib nom. 
Bosh v. Locke - - . - . 135, 159 

Sonthwood, Bex v., 6 Man. & B. 414 - - . - 83 

Soworby v. Smith, L. B. 9 0. P. 624 ; 43 L. J. N. S. 0. P. 290; 
31 L. T. N. S. 309; 23 W. B. 79 - - - - 240 

Sparke, Weeks v., 1 M. & S. 679 - - . 331, 336, 340 

Spateman, Mellor v., 1 Wms. Saiind. 339 - 248, 260, 263, 264 

Spencer (Earl), Johnstone v., 30 Gh. Diy. 681 ; 63 L. T. N. S. 
502;34W. B.10 178,340 

Spencer, Peek v., L. B. 6 Gh. 648 ; 39 L. J. N. S. Gh. 638; 18 
W. B. 668 267 

Spooner v. Day, Gro. Gar. 432; W. Jon. 376 - - - 247 

Spray, Denn d. Goodwin v., 1 T. B. 466 - - 126, 134, 339 

Staoey v. Mph, 1 Myl. &£. 196 - * - - 91 

Staker, Styant v., 2 Yem. 260 - - - - 269, 367 

Stammers v. Dixon, 7 East, 200 ; 3 Smith, 261 - 16, 329 

SUndzed v. Shozditch, Gro. Jac 680 - - - - 266 

Stanhop, Pmdngton v., 1 Sid. 314 - - - - 27 

Stanton, Bex v., Gro. Jac. 269 - - - - 14, 300 

Stanway, Northwick (Lord) v., 6 East, 66 ; 3 B. & P. 346 - 14, 

174, 176, 189, 279, 284 

Steel V. Pri(^6tt, 2 Stark. 463 - - - - 280, 328 

Steele v. Walker, 28 Beay. 466 - - - . . 94 

Steere, Arundel (Gonntess of) v., Gro. Jac. 26 - - - 267 

Stephens, Att.-Gen. v., 6 De G. M. ft G. Ill ; 1 K & J. 724 - 228 

Stephens v. Baily, Nels. Oh. Bep. 106 - - - - 222 

Stephens V. TyreU, 2 Wils. 1 66 

Stephenson v. Hill, 3 Bnrr. 1273 - - - - - 2 



XX TABLB OF GAflBS. 

PAOB 

Sterne, Pemble v., T. Bay. 165 - - - - 349 

Sterry, Dnnwich (Bailiffs of) v., 1 B. ft Ad. 831 - - - 243 

Steward, Osborne v., 3 Mod. 230 - - - - 199 

Stokes V. Verryer, 1 Mod. 112 139 

Stone, Jurden v., Hutt. 18 - - - - - 162 

Stone, Sutton v., 2 Atk. 101 - - - - 62, 81 

Stoneham v. London, Brighton and South Coast Bail. Co., L. B. 
7 a B. 1 ; 41 L. J. N. S. a B. 1 ; 25 L. T. N. S. 788; 20 
W. B. 77 295 

Stott V. Stott. 16 East, 343 272 

Strafford (Earl of), Leeds (Duke of) v., 4 Yes. jun. 180 - 228 

Strafford (Earl of). North v., 3 P. Wms. 148 - - 190, 212 

Strata Meroella, Case of the Abbot of, 9 Bep. 24 a 12, 240, 241, 

242, 243, 245 

Street, May v., Oro. EHz. 120 - - - - - 326 

Strickland, Doe d. Bayer v., 2 a B. 792 ; 2Q.& D. 278 ; 11 
L. J. N. S. a B. 305 48,211 

Strickland, Fawcett v., Willes, 57 - - - 277, 278 

Strode, Nayler v., 2 Oh. Bep. 392 - - - - . 54 

Stubbs, Patrick v., 9 M. ft W. 830 ; 11 L. J. N. S. Ex. 281 - 274, 275 

Stuokley {or Hockley), Fitch v., 4 Bep. 23 a; Oro. Eliz. 442; 

54, 73, 83, 186 

Styant v. Staker, 2 Yem. 250 - - - - 269, 357 

Sussex (Earl of), Burridge v., 2 Ld. Baym. 1292 - - - 326 

Sutton V. Stone, 2 Atk. 101 - - - - 62, 81 

Swans, The Oase of, 7 Bep. 15 b - - - - - 241 

Swansea (Mayor, ftc. of), Beaufort (Duke of) v., 3 Exch. 413 ; 
4 L. T. N. S. 453 328 

Swayne's Oase, 8 Bep. 63 a - - - - 227, 352 

Sylyester, Thomas v., L. B. 8 Q. B. 368 ; 42 L. J. N. S. 237 ; 
29 L. T. N. S. 290; 21 W. B. 912 - - - - 400 

Symms v. Smith, Oro. Oar. 299 - - - . - 68 

Symonds, Beale v., 16 Beay. 406 - - - - 222 

Sympson v. Quinley, 1 Yent. 88 - - - - 128, 134 



T. 

Talbot V. Lewis, 1 0. M. ft B. 495 - - - 243, 331 

Talbot's Oase, 8 Bep. 104 b - - - - 199, 205 

Talmadge {or Talmash), Zinzan v., PoUexf. 561 ; T. Jon. 142; 
T. Bay. 402 - - - - - - 40, 53 

Tanistry, Oase of. Day. 28 b - - 19, 128, 218, 340 

Tayemer v. Oromwell (Lord), Oro. Eliz. 353 ; 4 Bep. 27 a 69, 305 

Taylor, Bourne v., 10 East, 189 - - - * 232 



TABLS OF CAS£S. Ixi 

PAOB 

Taylor v. Devey, 7A.ftE. 409 836 

Taylor, Brans v., 7 A. & £. 617 - - - 332, 333 

Taylor, Hoe v., 4 Bep. 30 b ; Gro. Eliz. 413 - - 14, 16 

Taylor v. James, Qodb. 150 - - - - - 241 

Taylor, Monro v., 8 EEare, 51 - - - . - 75 

Taylor, Oliyer, 1 Atk. 474 50 

Taylor v. Pembroke, cited 2 B. ft Ad. 361 - - 179, 180 

Taylor, Shaw v., Hob. 176 - - - - - 203 

Ttefldale, Atkinson v., 3 Wils. 278 ; 2 W. BL 817 - 264, 275 

Teigh, Bromfield v., 2 Ley. 87 .... 276 

Tenbam (Lord) v. Herbert, 2 Alk. 483 - - - - 266 

Thetford v. Thetford, 1 Leon. 204 - - * - 11 

Thiryefcon v. GoUier, Ohj. Gas. 48 - - - - - 308 

Thomas, Abergsrenny (Lord), 3 Anst. 668, n. - 43, 174 

Thomas, Lenthall v., 2 Keb. 267 229 

Thomas v. NichoUs, 3 Ley. 40 - - - • - 275 

Thomas, Pairy v., 5 Ex. 37 - - - - - 260 

Thomas v. Sylyester, L. B. 8 a B. 368; 42 L. J. N. S. Q. B. 
237 ; 29 L. T. N. S. 290 ; 21 W. B. 912 - - -400 

Thompson, Betts 1;., L. B. 6 Gh. 732; 25 L. T. N. S. 363; 19 
W. B. 1098 249, 267, 276 

Thompson, Doe d. Burgess v., 5 A. ft E. 532; 1 N. ft F. 215 ; 
2 H. ft W. 451 ; 6 L. J. N. S. K. B. 57 - - - 70 

Thompson, Doe d. Daiid v., 13 Q. B. 670; 18 L. J. N. S. Q. B. 
326 63, 74, 149 

Thompeony Driyer d. Berry v., 4 Taunt. 294 - - 56, 60 

Thompson v. Haidinge, 1 G. B. 940; 14 L. J. N. S. G. P. 268 ; 

9 Jnr. 927 2, 324 

Thompson, Shaw v., 4 Bep. 30b - - - - 163 

Thoip V. Owen, 2 Sm. ft G. 90; 23 L. J. N. S. Gh. 286 ; 18 

Jnr. 441 ; 2 W. B. 208 137 

Throscross (Inbabts. of), Bex v., 1 A. ft E. 126 ; 3 N. ft M. 

284 347 

Throstout d. Gower v. Gunningham, 2 W. BL 1046 - - 83 

Tilbury v. Silya, 45 Gh. Diy. 98 ; 63 L. T. N. S. Ill - 250, 358 
!nte, Goddon v., 1 GifF. 395 - - - - - 196 

Titos, Parkyns (or Perkins) v., 3 Mod. 132 ; Garth. 12 - 173, 175 
Todd, Ghrayenor v., 4 Bep. 23 a - - - 25, 42, 49 

Todd, Hobson v., 4 T. B. 71 - - - - - 265 

Tofield, Doe d. Tofield v., 11 East, 246 - -^ 62, 64, 69 

Tomkins, Doe d. Blacksell v., 11 East, 185 - 53, 62, 84, 148 

Tomline, Att-Gen. v., 15 Gh. Diy. 150 (G. A.) ; 5 Gh. Diy. 750; 

46 L. J. N. S. Gh, 654; 36L.T. N. S. 684; 25 W. R 802 -234, 

235, 280, 285, 286 



bdi TABLB OF GASB8. 

PAoa 
Tomline, Ex parte, Be Walton-cam-Tniinley Manor» 21 W. B. 
476 ; 28 L.7r. N. 8. 12 - - • - - 12 

Torkington, Beadsworth v,, 1 a B. 782 ; 1Q.& D. 482 ; 6 Jut. 
339 260 

TothiU, Ingram v., 1 Mod. 216; 2 Mod. 93 - - - 207 

Tower, Bex v., 4 M. & S. 162 - - - - -314 

Townley v. Gibson, 2 T. B. 401 - - - - 287 

Towns, Doe d. Carlisle v., 2 B. & Ad. 585 ; 9 L. J. K. B. 278 - 51 

Traheme v. Gardner, 5 E. & B. 913; 25 L. J. N. S. Q. B. 201; 
2 Jut. N. S. 394 - - - -52, 73, 188, 208, 313 

Trash v. Wood, 4 Myl. ft Or. 324; 9 L. J. N. S. Ch. 105 ; 4 
Jut. 669 140 

Tredway v. Potherley, 2 Vem. 367 - - . 80, 184 

Tregonning, Blewettv., 8A. ftE. 554; 5N.ftM.234; 4L.J. 
N. S. K B. 223 248 

Tresidder, Doe d. Tresidder v., 1 Q. B. 416 ; 1 G. ft D. 70; 10 
L. J. N. S. a B. 190; 5 Jur. 931 - - - 35, 230 

Tresider, Dunstan v., 5 T. B. 2 - - - - 272 

Treyor, Garbutt v. , 15 0. B. N. S. 650 ; 1 Har. ft By. 69 ; 33 L. J. 
N. S. 0. P. 73 ; 9 L. T. N. S. 535 ; 12 W. B. 471 - 150, 324 

Triggs, Smith v., 1 Stra. 487 64 

Trinity College, Cambridge v. Browne, 1 Yem. 441 - - 202 

Troake, FoUet t^., 2 Ld. Baym. 1186 - - - - 276 

Trotter v. Blake, 2 Mod. 229 - - . - 175, 230, 344 

Trotter v. Harris, 2 Y. ft J. 285 - - - - 244 

Truby, Doe d. Wightwiok v., 2 W. Bl. 944 - - - 27 

Tnieman, Doe d. Boyer v., 1 B. ft Ad. 736 ; 9 L. J. K B. 119- 152, 

224, 505 

Truro TLord), Beg. v. See Beg. v. Begistrar of Deeds for Co. of 
Midolesex. 

Tudge, Baldwin v., 2 Wils. 20 197 

Turner v. Benny {or Benson), 1 Mod. 61 ; 1 Ley. 293 ; 2 Keb. 
660 51 

Turner v. Hodges, Hutt. 101 - - - - 35, 36, 221 

Turner v. Jacomb, (1892) 1 Q. B. 47 - - - - 120 

Turner, Bing v., 1 Myl. ft K 456 - - - 91, 148 

Turner v. West Bromwich Union (Ghiardians of), 9 W. B, 155 ; 

3L. T. N. S. 662 - - - - 153,219,337 

Tutney, James v., Cro. Car. 497 ; W. Jon. 421 - - 15, 307 

Twelyes, Boby v.. Sty. 423 - - - - - 59 

Twining v. Morrice, 2 Bro. C. C. 326 - - - - 78 

Twynam v. Fickard, 2 B. ft Aid. 105 - - . - 123 

Tylee v. Webb, 6 Beay. 552 - - - - .82 

Tyndflle, Padwick v., 1 E. &E. 184; 28 L. J. N. S. Q. B. 90; 

33 L. T. N. S. 125 ; 5 Jur. N. S. 676 ; 7 W. E. 53 - 201, 526 



TABLE OP CASES. Ixili 

TAam 

Tyiell, fitephans v., 2 YHla. 1 * - * - - 66 

Tyningliam^s Case, 4 Bep. 36 b - - 251, 258, 268, 357 

Tyrwhitt, Wynne v., 4 B. & Aid, 376 - • - - 346 

Tyson V. Sraifch, 9 A. &E.406; 1 P. & D. 307; W. W. & D. 
749 - - 237,245 

Tyssen-Amlmrst, Bi^lis v., 6 Ch. Diy. 500 ; 46 L. J. N. S. Ch. 
718 ; 37 L. T, N. S. 493 - - - - 253, 254 

Tyason v. Olaxke, 3 Wils. 541 - - - 280, 282, 284 



UnderhiU v. Selsey, Cro. Jac 226 - - - - 153 

Underbill, Peaidon v., 16 Q. B. 120; 20 L. J. N. S. Q. B. 133; 
15 Jut. 465 - . . - . -256,272 

IJppeiton V. I^Gkolflon, L. E. 6 Gb. 436 - • - 78 

Upaber, Evans v., 16 M. ft W. 675; 16 L. J. N. S. Ex. 185 - 187, 

323 

Upton, Welcome v., 6 M. & W. 536 - - - - 16 

Utbert, Fasten v., litt. Bep. 264 - - - 223, 228 



V. 

Valentine v. Penny, Noy. 145 - - - - 250, 255 

Yangban v, Atkins, 5 Burr. 2764 - - 63, 131, 162, 165 

Yemon, Doe d. Yemen i;., 7 East, 8 ; 3 Smitb, 6 - - 64, 68 

Yemon's Case, 4 Bep. 1 a - - - - - 164 

Yenryer, Stokes v., 1 Mod. 112 - - - - - 139 

Yenilam (Earl) v, Howard, 5 Moo. & P. 148 ; 7 Bing. 327 ; 9 
L. J. 0. P. 69 177 

YUlebois, Camaryon (Earl of) v., 13 M. & W. 313; 14 L. J. 
N. 8. Ex. 233 337 

Yinoent, Att.-Gen. i;., Bunb. 192 ; 2 Eq. Gas. Abr. 378 - - 227 



W. 

Wade V. Baker, 1 Ld. Baym. 130 - - - - 170 

Wade, Forder v., 4 Bro. 0. 0. 520 - - - 162, 166, 186 

Wadswortb, Pindar v., 2 East, 154 - - - - 266 

Wainewrigbt v. Elwell, 1 Madd. 627 - - - 64, 91 

Wakefield, Bucdeagb (Duke of) v., L. B. 4 H. L. Gas. 377 ; 
36 L. J. N. S. Gb. 441 ; 28 L. T. N. S. 102 - - 234, 236 

Walker v. Abingdon (Earl), 10 L. J. N. S. Gb. 289 ; 5 Jur. 
714 - - 43 

Walker v. Denne, 2 Yes. jnn. 170 - - - - 221 



Ixiv TABLE OF GASES. 

PAOB 

Walker, Doe d. Eyans v., 15 Q. B. 28 ; 19 L. J. N. S. Q. B. 
293 348 

Walker, Moeley v., 7 B. & C. 40 - - - - . 245 

Walker, Steele v., 28 Beay. 466 - - - - 94 

Walker v. Walker, 1 Ves. 54 164 

Waller, Hillary »., 12 Ves. jun. 239 - - - 218, 338 

Walters v. Webb, L. E. 5 Ob. 531 ; 39 L. J. N. S. Cb. 677 ; 
18W.B. 587 72,219 

Walton-cum-Trimlev Manor, Be, Ex parte TomlLae, 21 W. B. 
475 ; 28 L. T. N. 8. 12 12 

Wanstead Manor (Lord of). Beg. v., 23 L. J. N. S. Q. B. 
67 ; 18 Jur. 310 92, 188 

Warblington (Inbabts. of), Bex v., 1 T. B. 242 - - 282 

Ward, Bolton v., 4 Hare, 530 ; 14 L. J. N. S. Ob. 361 ; 9 Jur. 
591 118 

Ward, Fort v.. Moo. 667 - - - - - 268 

Ward, Nortbampton (Mayor, &c. of) v., 2 Stra. 1238 * - 245 

Ward V. Ward, 7 Excb. 838 - - - - 270, 271 

Wannington, Miller v., IJ. & W. 484 - - - - 228 

Wame v. Sawyer, 1 Bolle, B. 48 - - - - 173 

Warner, Ex parte, 19 Ves. jiin. 202 - - - - 82 

Warren, Ely (Dean & Cb. of) v., 2 Atk. 189 - 227, 250, 272, 343 

Warrick v. Queen's College, Oxford, L. B. 6 Cb. 716 ; L. B. 10 
Eq. 105; 40 L. J. N. S. Ob. 780; 25 L. T. N. S. 254; 19 
W. B. 1098 - - - 6, 249, 250, 251, 257, 267, 315 

Wase V. Petty, Wincb. 3 - - - - - 94 

Watkinfl v. Lea, 6 Ves. jun. 633 - - - - - 39 

Watling, Wells v., 2 W. Bl. 1233 - - • - 265 

Watts, Oxley v., 1 T. B. 12 - - - - - 241 

Weaver v. Maule, 2 B. ft M. 97 - - - - 60 

Webb, Tylee v., 6 Beav. 552 - - - - - 82 

Webb, Walters v., L. B. 5 Cb. 531 ; 39 L. J. N. S. Cb. 677 ; 
18W.E. 587 72,219 

Webbe, Mors v.. 1 Brownl, 180; 2 Brownl. 297 - - 270 

Webber, Doe d. Nortb v., 5 Scott, 189 ; 3 Hodges, 203 - - 53 

Webster, Moore v., L. B. 3 Eq. 267 ; 36 L. J. N. S. Cb. 429 ; 15 
W. B. 167 ; 15 L. T. N. S. 460 - - - - 166 

Weddell, Wilson v., Yelv. 144 - - - - 64, 69 

Weedon Beck Manor (Lords of), Beg. v., 13 Q. B. 808; 18 

L. J. N. S. Q. B. 289 ; 13 Jur. 1121 - - - 96 

Weekly, Abbot v., 1 Lev. 176 - - - - - 298 

Weeks v. Carvel, Noy, 106 - - - - - 135 

Weeks v. Sparke, 1 M. & S. 679 - - - 331, 335, 340 

Wegg, Boe d. Hall v., 6 T. B. 708 - - - - 351 

Welob, Saunders v., cited 1 Salk. 57 - - - '- 325 



TABLE OF CASES. IxtT 

FAOB 

Welcome v. Upton, 6 M. ft W. 536 - - - - 16 

Welledey, Eeg. v., 2 B. & B. 924 - - - - - 152 

WeUedey (Visct.) v. Withers, 4 B. & B. 750 ; 24 L. J. N. 8. 
a. B. 134; 1 Jur. N. S. 706- - - - 92, 191 

Wells V. Abraham, L. R. 7 a B. 554; 41 L. J. N. S. Q. B. 
306; 26 L. T. N. S. 433; 20 W. B. 659 - - - - 242 

Wells, Blaker v., 28 L. T. N. S. 21 - - - - 413 

Wells, Hughes v., 9 Hare, 749 ; 16 Jur. 927 - - - 222 

Wells V. Pearcy, 1 Bing. N. 0. 556 - - - • 252 

Wells V. Watling. 2 W. Bl. 1253 265 

Welsh {or Welche) Froafel {or ProsweU) v., Cro. Jac 403 ; 
Godb. 268 ; 3 Bals. 216 - - - - 68, 151 

Wentworth (Lady) v. Clay, Oas. temp. Fmch, 263 - 280, 281, 306, 

308 

West Bromwich XJnioxi (Guardians of), Turner v., 9 W. B. 155 ; 

3 L. T. N. 8. 662 - - - - 153, 219, 337 

Weston, Luttrel v., Oro. Jac. 308 - • - - - 35 

Weston, Noel v., 6 Madd. 50 - - - - - 58 

Westwiok v. Wyer, 4 Eep. 28 a- - - .-63 

Wharton v. King, 3 Anst 659 - - 43, 173, 174, 344 

Wheate, Bnrgess v., 1 W. BL 123; 1 Bden, 177 - -221, 222 

Wheeler v. Honour, 1 Sid. 58 - - - - 189, 190 

Wheeler^s Case, 4 Leon. 240 - - • - - 159 

Wheehonae {or Welhouse), Heddy v., Gio. Bliz. 558, 591 ; Moo. 
474 138, 240, 241, 244 

Whelpdale, Huddleston v., 9 Hare, 775 - - - - 188 

Whitaker, Doe d. Boberts v., 3 N. & M. 225 - - 204, 303 

Whitbread v, Jordan, 1 Y. & G. Bx. 303 ; 4 Y. & 0. Bx. 566; 

4 L. J. N. 8. Ex. Eq. 38 - - - -74,82 

White, Goold v., K. 683 27 

White V. Shirland, cited Go. Litt. 122 a - - - - 274 

Whitechurch v. Holworthy, 4 M. & 8. 340 ; 19 Yes. jun. 214 - 232 

Whitfield V. Hunt, 2 Doug. 727, n. - - - - 189 

Whitton V. Peacock, 3 Myl. ft E. 325 - - 123, 219, 224 

Wich, Baker v., 1 8alk. 56 325 

Widdowson, Harrington (Barl of), 1 J. ft W. 532 - 62, 72, 163 

Wigg, Fisher v., 1 P. Wms. 14 - - - - 62, 182 

'VniberfoToe v. Hearfield, 5 Gh. Div. 709 ; 46 L. J. N. 8. Gh. 
584; 25W. E. 861 335 

Wnby (Lihabts of), Bex v., 2 M. & 8. 504 - - - 169 

Wilkes V. Broadbent, 1 Wils. 63 ; 2 Stra. 1224- - 19, 233 

Wilkin, Daniel v., 7 Ex. 429 332 

Wilks V. Groom, 6 De G. M. ft G. 205 - - - 98 

WiUoock V. Windsor, 3 B. & Ad. 43 - - - - 302 

WiUee, E» v., 3 B. & Aid. 510 - - - - 224 

B. « 



Ixri TABLB OF CAiBES. 

PAOB 

WiUes, Wilson v., 1 East, 121 ; 8 Smith, 167 - 250, 252, 342 

Williams, Davies v., 16 Q. B. 546; 20 L. J. N. S. Q. B. 330; 
15 Jur. 752 - - - - - - 260. 264 

Williams, Doe d. Clayton v., 11 M. & W. 803 ; 12 L. J. N. 8. 
Ex. 429 - - - - - - - - 10 

Williams, Doe d. Dunraven v., 7 0. & P. 332 - - - 248 

Williamson, Emson v., 1 Eo, Abr. 933 - - - - 357 

Willingale v. Maitland, L. B. 3 Eq. 103; 36 L. J. N. S. Ch. 64 - 261 

Willis V. Willis, 34 Beav. 340 164 

Willowes' Case, 13 Eep. 1 - - - - 176, 230, 231 

Wilson, Be, 3 De G. J. & S. 410; 32 L. J. N. S. Ch. 191 ; 7 
L. T. N. S. 772 ; 11 W. E. 295 HO 

Wilson V, Allen, IJ. & W. 611 - - 69, 151, 354, 355 

Wilson, Arden v., L. R. 7 0. P. 535 ; 41 L. J. N. S. 0. P. 273 ; 
26 L. T. N. S. 887 ... - 393,526 

Wilson, Brabant v., L. B. 1 Q. B. 44 ; 35 L. J. N. S. a B. 49 ; 
12 Jut. N. S. 24 ; 14 W. E. 28 ; 6 B. & S. 979 - 393, 417 

Wilson, Doe d. Dormer v., 4 B. & Aid. 303 - - - 62 

Wilson, Doe d. Perry v., 6 N. & M. 809 - - - 148 

Wilson V. Hoare, 10 A. & E. 236 ; 2 B. & Ad. 350 ; 2 P. ft D. 
659; 9 L. J. K. B. 253 - - - 176, 179, 180, 181, 182 

Wilson, Eadford v., 3 Atk. 815 ... - 27 

Wilson, Beg. v., 3 B. & S. 201 ; 32 L. J. N. S. Q. B. 9; 9 Jnr. 
N. 8. 439 ; 7 L. T. N. 8. 326 ; 11 W. R. 70 - - 89, 191 

Wilson, Rex v., 10 B. & C. 80; 5 Man. ft R. 140; 8 L. J. K. B. 
101 83,88,89,91,150 

Wilson, Rowbotham v., 8 H. L. Cas. 348 ; 30 L. J. N. 8. Q. B. 
49; 6 Jut. N. 8. 965 234 

Wilson V. Weddell, Yelv. 144 - - - - 64, 69 

Wilson V. Willee, 7 East. 121 ; 3 8mith, 167 - 250, 252, 342 

Wilson's Estate, In re, 2 J. ft H. 619 ; 32 L. J. N. 8. Ch. 191 ; 
7 L. T. N. 8. 191 ; 11 W. R. 294 - - - - 419 

Winchester (Bishop of) v. Knight, 1 P. Wms. 406 - 227, 236 

Windham v. Giubilei, 40 L. J. N. 8. Ch. 505 ; 24 L. T. N. 8. 
653 314 

Windsor, Willcock v., 3 B. ft Ad. 43 - - - - 302 

WingBeld, Costard v., 2 Leon. 44 • - - - - 257 

WinmiU, Boulcott v., 2 Camp. 261 - - 280, 282, 284, 311 

Winn, Beauchamp (Earl) v., L. R. 6 H. L. 223 - - - 238 

Winsmore, CKxiwin v., 2 Atk. 525 - - - - 160 

Wirty V. Pemberton, 2 Eq. Cas. Abr. 279 - - -202, 209 

Wiseman v. Cotton, 1 8id. 135 - - - 9, 127, 158, 327 

Witchford Manor (Steward of), Reg. v., 7 DowL 709; 3 Jnr. 
533 72 

Withers, Wellesley (Viscfc.) v., 4 E. ft B. 750; 24 L. J. N. 8. 
Q. B. 134; 1 Jut. N. 8. 706 - - - - 92, 191 



TABLE OF CASES. 



Ixyii 



"Witliers V. Withers, Amb. 161 - - - - 22, 125 

Woadson v. Nawton, 2 Stra. 777 - - - - 262 

Wood, Ekton v., 2 Myl. & K. 678 - - - -314, 347 

Wood, Glouceflter (Bishop of) v., Winch. 46, 67 - - 202 

Wood V. Lambirth, 1 Ph. 8; 6 Jur. 741 - - - 93, 166 

Wood, Eider v., 1 K & J. 644 ; 24 L. J. N. S. Oh. 737- 130, 139 

Wood, Eogera v., 2 B. & Ad. 246 - - - - - 330 

Wood, Traah v., 4 Myl. & Or. 324); 9 L. J. N. S. Oh. 106; 4 
Jut. 469 140 

Woodford, Sheppard v., 6 M. ft W. 608 ; 9 L. J. N. S. Ex. 90 - 182, 

184 

Woodgate, Bingham v., 1 B. & M. 32; TamL 183; 8 L. J. Oh. 
46 2,361 

Woodham Walter Manor (Lord of). Beg. v,, 10 B. & S. 439 - 186 

Woodham Walter Manor (Lord of), Beynolds v., L. B. 7 0. P. 
639 ; 41 L. J. N. S. 0. P. 281 ; 27 L. T. N. S. 374 - 394, 396, 

626, 626, 632 

WoodhooBe, Olarkson v., 6 T. B. 412, n. ; 3 Dong. 189 - 284, 339 

Woodhonse, Price v., 3 Exch. 616; 18 L. J. N. S. Ex. 271 - 339 

Woodin, Gonge v., King's Bench, 1734, Elton, Ten. Kent, 189 - 138 

Woodland v. Mantel, Plowd. 94 - - - - 198, 199 

Woods, Seaman v., 24 Beay. 372 ; 27 L. J. N. S. Oh. 638 ; 4 Jur. 
N. S. 725 91 

Worledg v. Kingswell, Oro. Eliz. 794 - - - 269, 357 

Worledge v. Benbury, Oro. Jac. 436 ; 2 Buls. 216 ; 1 Boll. E. 1 2 - 36 

Wray, Eobinson v., L. B. 1 0. P. 490 ; 14 L. T. N. S. 434 - - 240 

Wright V. Banks, 3 B. & Ad. 664 - - - - 148 

Wright V. Howard, 1 S. & 8. 190 78 

Wright V. Kemp, 3 T. E. 470 - - - - - 62 

Wroot, Doe d. Shewen v., 6 East, 132 ; 1 Smith, 363 - . 79 

Wrof s Oase, cited Litt. E. 26 83 

Wycherley v. Wycherley, 2 Eden, 176 - - - - 67 

Wyer, Westwick v., 4 Eep. 28 a - - - - 63 

Wynn, Owen v., 9 Oh. Div. 29; 38 L. T. N. S. 623; 26 W. E. 
644 316 

Wynne v. Oookes, 1 Bro. 0. 0. 616 - - - - 355 

Wynne v. Tyrwhitt, 4 B. ft Aid. 376 - - - - 346 



Y. 

Yaxley v. Eainer, 1 Ld. Eaym. 44 - - - - 195 

Yetmhister Case, Noy, 2 - - - - - 173 

York (Duke of) v. Maraham, Hard. 432 - - - - 124 

York (Mayor, &c. of) v. Pilkington, 1 Atk. 282 - - 266 

e2 



IXTiii TABLS OF CASB8. 



PAOB 

Zinzan v. Talmadge {or Talmash), Pollexf . 561 ; T. Jon. 142 ; 
T. Bay. 402 40, 63 

Zouch d. Abbot v. Parsons, 3 Btur. 1794 - - - - 65 

Zouch d, FoTse v. Forse, 7 East, 186 ; 3 Smith, 191 - 33, 69, 89 

Zouche (Lord) V. Dalbiac, L. B. 10 Ex. 172 ; 44 L. J. N. S. Ex. 
109 ; 33 L. T. N. S. 221 ; 23 W. B. 664 - - - 216, 218 



( i^ ) 



TABLE OF STATUTES CITED. 



PAOa 

20 Hen. m. Statute of Merton:— 

o. 1 (DamageB on writ of dower) 124, 163 

c. 2 Power: Emblements: Will) 163 

o. 4 (Approvement) 125, 276, 278, 286 

c. 10 (Attomeys) 197 

4£dw. Lsb. 1 {Eztmta Mmerii) 4, 833 

18 Edw. I. et. 1. Statate of Westminster Hie Second : — 

o. 1 {Be JDonia Conditumahbut) 26, 122 

c. 18 (Execution: Elegit) 122 

o. 46 (Approvement of wastes) 125, 275, 276, 286 

18 Edw. I. o. 1 {Quia £mptores) . . 10, 11, 12, 198, 207, 251, 258, 325, 363 

17 Edw. H. St. 1, c. 6 (jDe Pterogati^a Regis : Tenure in eapiU) 10 

22 Edw. IV. c. 7(Inclosureof wastes: Timber) 296 

4 Hen. Vn. c. 24 (Knee) 124, 126 

11 Hen. Yn.0. 23, Priy. (EHsgaveUing 9 

16 Hen- Vm. 0. 19, Priv. (Dlsgavelling) 9 

27Hen. Vin. c. 10 (Statate of Uses) 24,61, 123,163, 164 

o.26(Wales) 128 

o. 28^ionasterie8) • , 138 

81 Hen. vm. o. 3 (Disgavelling) 9, 327 

0. 13 (Monaster!^ 138 

32 Hen. vm. o. 1 (Statate of Wills) 82 

o. 2 (Limitation) 212 

o 28 rLeases^ 123 

c! 29, Priv. (OswaUbeK^VNoUs-Gav 128 

o. 3 4 (Covenants) , ....74, 128 

34 & 86 Hen. vm. o. 5 (WiUs) 82 

o.26(WalesJ 128 

36 Hen. Vm. o. 17 (Indosare of wastes : Timber) 296 

87 Hen. VIU. o. 4 (Monasteries) 138 

1 Edw. VI. o. 14 (Monasteries) 1 38 

2ft3Edw. VI. c. 1, Priv. (Disgavelling) 9 

8 ft 4 Edw. VI. o. 3 (Indosare of wastes) 276 

1 ft 2 Ph. & M. o. 8 Monasteries) 138 

lEUz. o. 7, Priv. (Disgavelling) 9 

8 E]i2. 0. 10, Priv. (Disgavelling) 9 

ISEllz. c. 6 (Defrauding creditors) 66, 122, 123, 203 

23Eliz. c 12, Priv. rBxeter: Gavelkind) 128 

27 Eliz. c. 4 Q)e(frauding pnrohaBerB) 66 

36 Eliz. c. 3 (Monasteries) 138 

21 Jac. 1. c. 6, Priv. (Stepney and Hackney : Gavelkind) 128 

c. 36, Priv. (DisgaveQing) 9 



IxZ TABLE OF STATUTES CITED. 

PAQB 

1 Oar. I. o. 1, Priv. (Cheltonham Manor Act) 160, 392 

12 Oar. II. o. 24 (MiiitarT tennree : Gtiardiana) ... .6, 124, 169, 195, 825 

15 Oar. II. o. 17 (Bedford Level Registry) ; 95 

16 & 17 Oar. II. o. 8 (Jadgmant: Dower) 163 

22 & 23 Oar. II. o. 10 (Statute of Distribution) 142 

29 Oar. II. o. 3 (Statate of Frauds) 22, 125 

7 Anne, o. 20 (lliddlesex Begistrr Aot» 1708) 95 

I Geo. I. 29 (Infants : Oopjholds) 170 

4 Geo. II. c. 28 (Distress : Landlord and tenant) 211 

29 Geo. II. 0. 36 (Inolosnre of oommons : Timber^ 296 — 298 

81 Greo. II. 0. 41 (Inolosure of commons : Timber) 297 

13 Geo. III. o. 81 (Oommon fields: Inolosure) 290—292 

19 G^. III. o. 45 (Duchy of Lancaster) • • 427 

27Geo. III. o. 34 (Duchy of Lancaster) 427 

41 Geo. III. c. 109 (Inolosure (Oonsolidation) Act, 1801) 287 

42 Geo. m. c. 116 (Land Tax Redemption Act, 1802) 437, 438 

51 G^. III. 0. 115 (Oonunon : Ohurohyaid) 298 

53 Geo. in. c. 123 (Land Tax Redemption Act, 1813) 438 

c. 142 (Land Tax Act, 1813) 438 

54 Geo. m. o. 145 (Forfeiture) 225 

0. 173 (Land Tax Redemption Act, 1814) 438 

55 Geo. m. 0. 147 (Exchange of glebe) Ill 

o. 192 (Wills) 84, 166 

56 Geo. m. c. 52 (Exchange of glebe) Ill 

57 Geo. III. c. 100 (Land Tax Redemption Act, 1817) 438 

58 Geo. III. c. 45 (Church Building Act, 1818) 298, 438 

7 &8Geo. IV. c. 27 (Oriminal Statutes : repeal) 296 

lOGeo. IV. c. 50 (Crown Lands Act, 1829) 423—425 

II Geo. rV. & 1 Will. rV. c. 65 (Infants' Property Act, 1830) .... 13, 70, 

71, 73, 154, 155, 170, 178, 190, 364 

1 & 2 Will. rV. o. 42 (Oommon : Poor) 299 

c. 69 (Oonmion : Poor) 299 

2 & 3 Will. rV. c. 1 (Crown Lands Act, 1832) 423 

c. 71 (Prescription Act, 1832) ... .19, 236, 252, 258, 343 
c. 80 (Ecclesiastical possessions) 121, 441 

8 & 4 Will. IV. c. 27 (Real Property Limitation Act, 1833) .... 148, 153, 

163, 199, 212>-217, 219, 222, 325 

0. 42 (Interest : Limitation of actions) 190 

c. 74 (Fines and Reooreries Act, 1833) ... .7, 27—32, 53, 

93, 153, 325, 326, 345 

0. 104 (Debts : Assets) 66 

c. 105 (Dower Act, 1833) 157, 158, 164, 166 

o. 106 (Inheritance Act, 1838) . . 134, 136, 187, 142, 143, 

146, 147, 184 

4&5Will.iy.o. 23 (Escheat: Trustee) 225 

c. 30 (Common fields : Exchanges) Ill 

o. 76 (Poor Law Amendment Act, 1834) 488 

5 & 6 Will. IV. 69 (Union and Parish Property Act, 1835) 299, 488 

6 & 7 Will. rV. 0. 77 (Ecdeaiastical Conmiissioners Act, 1836) 431 

c. 115 (Oommon fields : Inolosure) 291 

1 Vict. 0.26 (Wills Act, 1837) . .33, 34, 64, 65, 84—87, 90. 91, 166, 182, 

183. And M$ App. 515—518 

c. 50 (Poor Law : OonTeranoes) 438, 439 

1 & 2 Viot. c. 58 (Land Tax Redemption Act, 1838) 437, 438 

c. 94 (Public Record Office Act, 1838) 325 

c. no (Judgments Act, 1838) ..37, 66, 67, 122, 123, 184, 326 

3 & 4 Vict. c. 81 (Open fields : Inolosure) 291 

c. 113 (Eodesiastioal Commissioners Act, 1840) .... 1 17, 431 



TABLE OF STATUTES CITED. Ixxi 

PAOB 

4 & 5 Yiot. o. 35 (Copjhold Act, 1841) . . . .49, 65, 66, 118, 151, 153, 154, 

158, 169, 220, 304, 305, 310, 312, 359—371, 374, 376, 
382, 396, 409, 410, 412, 414—416, 428, 433, 440, 442 
Atid see App. 519—522. 

o. 38 ^hool Sites Act, 1841) 105, 298, 299 

c. 39 (Eodflwantifial OommiaaionerB Act, 1841) «. 431 

5 Vioi. c. 1 (Grown Lands Act, 1841) 423 

6 & 6 Vict, c 26 (EodesiaBtical Houses of Besidenoe Act, 1842) .. 117, 431 

c. 94 (Defence Act, 1842) 105, 106 

6 & 7 Vict. o. 23 (Copyhold Act, 1843) . . . .359, 360, 362, 364, 366, 368— 

374, 415 
0. 37 (New Pazishes Act, 1843) 431 

7 & 8 Vict, c 55 (Cqpyhold Act, 1844) . .359, 360, 363, 369, 373, 410, 442 

0. 65 (DochT of Cornwall) 428 

o. 105 (Dnchy of Lancaster) 428 

8 Vict. o. 18 (Lands CLaases Consolidation Act, 1845) ..55, 107—109, 

124, 194, 195, 292, 295, 296, 323, 418—420 

8 & 9 Vict o. 99 (Crown Lands Act, 1841) 423 

c. 106 (Real Property Act, 1845) 21, 94, 229 

0. 112 (Satisfied terms) 24 

o. 118 (Indosnie Act, 1845) ..112—115, 118—120, 124, 147, 

148, 285, 287—289, 323 

9 & 10 Vict. 0. 70 (Lidosnre Act, 1846) .... 113, 114, 120, 121, 123, 287 

10 ft 11 Vict. c. 14 (Markets and Fairs Clauses Act, 1847) 245 

c. Ill (Indosore Act, 1847) 113, 285, 287 

11 ft 12 Vict. o. 83 (Dnchy of Cornwall) 428 

o. 99 (Inclosore Act, 1848) 119, 287 

12 ft 13 Vict. c. 49 (School Sites Act, 1849) 105 

o. 83 (Incloeure Act, 1849) 115, 116, 287 

13 ft 14 Vict. o. 60 (Trustee Act, 1850) . .96— 98, 100, 102, 111, 118, 222, 

225 
c. 94 (Ecclesiastical Commissioners Act, 1850) 431 

14 ft 15 Vict. o. 25 (Landlord and Tenant Act, 1851) 163 

o. 42 rCrown Lands Act, 1851) 423 

o. 53 (IndoBure Commissioners Act, 1851) 287 

o. 104 (Episcopal and Capitnlar Estates Act, 1851) . . 117, 

368, 428—431, 433, 434 

15 ft 16 Vict. 0.49 (School Sites Act, 1852) 105, 299 

o. 51 (Copyhold Act, 1852) . .110, 158, 211, 238, 310, 816, 

366, 369, 362, 367, 368, 372—376, 378—381, 383, 

885, 389—392, 396, 398, 401—407, 409, 411— 

417, 420, 434, 437; and see Ajpp, 523—539 

o. 55 (Trustee Act, 1852) 79, 96, 97, 100, 101 

c. 62 (Crown Lands Act, 1852) 423, 424 

o. 79 (Inolosiire Act, 1852) .... 114, 119, 287, 288, 293, 294 

16 ft 17 Vict o. 56 (Crown Lands Act, 1853 423 

c 74 (Land Tax Bedemption) 438 

o. 137 (Charitable Tmste Act, 1853) 117, 404 

17 ft 18 Vict. o. 97 (Inclosore Act, 1854) 115, 116, 287, 293, 294 

o. 104 (Merchant Shipping Act, 1854) 243, 244 

o. 112 (literary and Soientifio Instltations Act, 1854. . 299, 

439 
c 116 (Episcopal and Capitular Estates Act, 1854) . . 117, 

368, 428—430, 433 

18 ft 19 Vict o. 43 (Infant Settlements Act, 1855) 55 

c 91 (Merohant Shipping Act Amendment Act, 1855). 243 
o. 117 (The Ordnance Board Transfer Act, 1855) .... 106 
0. 124 (Charitable Trosts Amendment Act, 1855) .. 117, 404 



Ittii table of statutes CITED. 

PAQB 

19ft20'^ot. c. 104 (NewParisheflAot, 1866) 298 

20 & 21 Vict. c. 81 (Inolosure Act, 1857) 287, 288 

21 & 22 Viot. o. 44 fUnivenities and College Estates Act, 1858) 434—436 

o. 67 (Eoolesiastioal Leasmg Act, 1858) 117 

o. 94 (Copyhold Act, 1868) . . 110, 211, 359, 361, 863, 367, 
368, 372—376, 378—381, 383, 384, 386—389, 397, 
398, 401—403, 405—408, 410—414, 417, 423, 424, 
426—428, 431, 433, 434, 437, oiMf tM App. 540—556. 

22 & 23 Vict. 0. 21 (Qaeen's Bemembranoer's Act, 1859) 106 

c. 36 (Law of Property Amendment Act, 1859) 143 

o. 43 ^doBiiie Act, 1859) 119, 287 

23 & 24 Vict. 0. 59 (Universities and CoUegfe Estates Act Extension 

Act, 1860) 434, 436, 437 

o. 112 (Defence Act, 1860) 105, 106 

0. 124 (Eoolesiastioal Commissioners Act, I860).. 368, 428, 

431—433 

0. 126 (Common Law Procedure Act, 1860) 163 

c. 136 (Charitable Trusts Act, 1862) 404 

24 & 25 Vict. o. 62 (Crown Suits Act, 1861) 428 

0. 96 (Laroen;^ Act, 1861) 242 

0. 106 (Ecclesiastical Corporations : Leases) 117, 429 

26 & 26 Vict. 0. 62 (Ecclesiastical Corporations : Leases) 117, 429 

0. 53 (Xiand Registry : Middlesex) 95 

0. 63 (Merchant Shipping Act Amendment Act, 1862). 243 
o. 112 (Charitable Trusts Act, 1862) 404 

26 & 27 Vict. 0. 49 (Duchy of Cornwall Registry) 96 

29 & 30 Vict. c. 62 (Crown Lands Act, 1866} 423 

o. Ill (Ecclesiastical Commissioners Act, 1866) 431 

c. 122 (Metropolitan Commons Act, 1866) 290 

30 & 31 Vict. c. 133 jConsecration of Churchyards Act, 1867) 439 

31 & 32 Vict. c. 89 (Indoeure, &c. Expenses Act, 1868).. 287, 295, 422, 

435, 441—443 

32 & 33 Vict. 0. 107 (Metropolitan Commons Amendment Act, 18C9) 290 

o. 110 (Charitable Trusts Act, 1869) 404 

33 & 34 Vict. c. 23 (Forfeiture Act, 1870 225 

34 & 35 Viot. c. 12 (Fairs Act, 1871) 245 

35 & 36 Vict. 0. 44 (Court of Chancery (Funds) Act, 1872) 106 

d6&37 Vict. 0. 36 (Crown Lands Act, 1873) 423 

0. 37 (Fairs Act. 1873) 246 

0. 64 (Ecclesiastical CommissionezB Act, 1873) 431 

c. 66 (Judicature Act, 1873) 96 

0. 72 (Defence Act, 1873) 106 

37 & 38 Vict. c. 42 (Building Societies Act, 1874) 102, 103 

c. 57 (Real Property Limitation Act, 1874) . . 163, 163, 199, 

212, 217, 219, 222 
o. 78 (Vendor and Purchaser Act, 1874) 101 

38 & 39 Vict. c. 60 (Friendly Societies Act, 1875) 103 

c. 71 (Ecclesiastical Commissioners Act, 1875) 431 

39 & 40 Vict. c. 45 (Industrial and Provident Societies Act, 1876) . . 103 

c. 56 (Commons Act, 1876) 114, 119, 287—289 

40&41 Vict. c. 18 (SetUed Estates Act, 1877) 104 

41 & 42 Vict. c. 56 (Commons Expenses Act, 1878) 287 

42 & 43 Vict. c. 37 (Commons Act, 1879) 287 

43 & 44 Vict. c. 22 (Merchant Shipping Fees and Expenses Act, 1880) 243 

o. 46 (Universities and College Estates Amendment 

Act, 1880) 434,436,437 

44 & 45 Vict. 0. 41 (Conveyancing and Law of Troperty Act, 1881) . . 13, 

58, 59, 77, 81, 100, 101, 239, 356, 400, 401, 407, 411, 415 



TABLB OF STATUTBS CITED. IxTlii 

PAOE 

46 Vict. o. 9 (DoomnmitazT Evidence Act, 1882) 827 

o. 16 (Commonable Bights Compensation Act, 1882) . .287, 294, 

295 
46 ft 46 Vict. o. 38 (Settled Land Act, 1882). .36, 87, 56, 57, 61, 103, 104, 

193, 194, 364, 365, 369 

o. 39 (Conveyanoing Act, 1882) 58, 59, 77 

0. 76 (Manied Women's Property Act, 1882) . .31, 49, 63, 

66-^8, 71, 86, 93, 94, 156, 190, 198, 201, 360, 361 

46 ft 47 Tiot. 0. 29 ^preme Court of Jndicatore (Funds) Act, 1883) 106 

c.62 0BaxikraptcyAjot,1883) 110,184 

47&48yiot.o. 18 fettled Land Act, 1884) 104 

c. 64 (Toi^Bhire Begistries Act, 1884) 95 

o. 71 (Intestates' Estates Act, 1884) 221 

48Viot. o. 4 (Torksiiire Begistries) 95 

48 ft 49 Ylot. o. 26 rYorksmre Begistries Amendment Act, 1885) .... 95 

o. 31 (Ecclesiastical Commissioners Act, 1885) 431 

c. 79 (Crown Lands Act, 1886) 423,425 

49 ft 50 Viot. e. 27 (Guardianship of Infants Act, 1886) 169 

60 ft 61 Yiot. c. 49 (Charitable 'Amsts Act, 1887) 117,404 

c. 73 (Copyhold Act, 1887) . . 16, 62, 66, 70, 71, 77, 101, 164, 
156, 196, 204, 211, 212, 223, 279, 280, 282, 305, 
810—312, 816, 323, 354, 369, 364, 366—873, 376 
—387, 389, 391, 392, 394, 397—403, 406—416, 
417, 418, 420—423, 437, 441. And $e$ App. 566— 

671 

51 ft 62 "^oi. 0. 42 (Mortmain and Charitable Uses Act, 1888) ...... 61 

o. 43 (Connty Conrts Act, 1888) 96, 112 

52 ft 68 Yict. c. 30 (Board of Agricolture Act, 1889). .16, 113, 120, 121, 

287, 294, 323, 360 

53 ft 64 Yiflt. c. 5 (Lnnacy Act, 1890) 55, 66, 71, 102, 118, 165, 190 

0. 29 (Intestates' Estates Act, 1890) 345 

c. 69 (Settled Land Act, 1890) 37 

54ft56'^et.o. 10 (Middlesex Begistry Act, 1891) 96 

c. 17 (Charitable Trusts Becovery Act, 1891) 404 

e. 39 ^tamp Act, 1891). .75, 101, 312, 313, 346, 369. And 

MtfApp. 672—588 

c. 54 (Banges Act, 1891) 106 

o. 64 Qfid^esei; Begistry) 96, 369 

o. 66 (LnnaoyAct, 1891) 102 

66 ft 56 Viot. c. 60 (Expiring Laws Continnance Act, 1892) .... 368, 428 



R. / 



( Ixxiv ) 



ABBEBYIATIONS AND EDITIONS OF TEXT 

BOOKS CITED. 



Ba43. Abr Bacon's Abridgment of the Law. Seventh 

edition. 

Bracton , HenriouB de Braoton, De LegiboB Angliee. 

Edition 1669. 

Blaok. Gomm Blackstone's Commentaries on the Laws of 

England. Twentieth edition. Oriiginal 
pages. 

Bro. Abr Brooke's La grannde Abridgement. Edi- 
tion 1676. 

Bart. Gomp Bnrton's Compendimn of tiie Law of Beal 

Property, t^t edition. 

Oathr. Gopyh Galthrope's Beading on the relation between 

a Lord of a Manor and a Gopjholder. 
Seoond edition. 

Oas. ft Op • • • . • Oases with Opinions of eminent Oonnsel in 

matters of Law, Eqnity, and Convey- 
ancing. 

Co. Copyh Lord Coke's Complete Copyholder. Edition 

1668. 

Co. Litt. Lord Coke's Commentary upon Littleton's 

Tennres. Seventeenth edition. 

Com. Dig Comyn's Digest of the Laws of England. 

Fourth edition. 

Cooke, LidloBures Cooke on Inolosnres. Fourth edition. 

Cm. Dig Cruise's Di^^ of the Laws of England. 

Seoond edition. 

Dart, y. &P Dart's Vendors and PurohaserB. Sixth 

edition. 

Day. Cono. Preo. in Conv.. .Davidson's Concise Precedents in Convey- 
ancing. Fifteenth edition. 

Day. Cony. Preo Davidson's Precedents and Forms in Con- 



veyancing. Fourth edition. 
.Fitzherbert'i 



Fitz. Abr .Fitzherbert's La graunde Abridgement. 

Edition 1566. 
Fitz. Nat. Brev Fitzherbert's Natora Brevium. Ninth 

edition. 
Fleta A Commentary on the Law of England. 

Seoond edition. 

Gilb.Ten Gilbert's Law of Tenures. Fourth Edition. 

Hunt, Boundaries Hunt's Law of Boundaries and Fences. 

Seoond edition. 



r 



I 

[ ABBRBYIATIONS AND EDITIONS OF TEXT BOOKS CITED. IzXV 

f 

lost J, Lord Coke's Second, Thud and Fourth 

parts of the Institates of the Laws of 

England. Third edition. 
Eitoh. Juisd .••••<.. .EitohTii on Jnzisdiotions, or the lawful 

authority of Courts Leet, Baron, Ac. 

Third edition. 

Litt. . . . , Littleton's Tenures. See Co. Litt. 

FhilL Evid FhilHpps on the Law <rf Eyidenoe. Seventh 

edition. 

Bob. QnY Bobinson on GFaveUdnd. Third edition. 

Boose, Cop. Enfr. Man Bouse's Copyhold Enfranchisement Manual. 

Third edition. 

Seriy. Coprh Soriven on Copyholds. Fourth edition. 

Seroggs, Oourts Sorogg's Praotioe of Courts-Leet and 

Coiurts-Baron. Third edition. 
Ym. Afar. Vlner's Abridgment of Law and Equity. 

Second edition. 
Watk. Copyh Watkins on Copyholds. Fourth edition. 

Original pages. 

Watk. Deac Watlmas on Descents. Third edition. 

Woohybh, Commons Woohyoh on the Law of Bights of 

Commons. First edition. 



CORRIGENDA. 



Bage 118, note (jf),/or o. 39, read c. 6. 

"Bage 182, line 4, and page 184, note {u)y/or Shepherd, read Sheppard. 

Page 197, note (a), for Budge, read Tudge. 

Bage 817, lixie 26, /or fines, read fees. 

Page 336, line 8, dele of. 

Page 338, line 8, for Lydiard, read Lidiaid. 

Page 438, line 6, for 1812, read 1802. 

Page 441, line 80, for possession, read possesdonB. 



^ 



r 



$ Wxtziht 



ON THB 



LAW OF COPYHOLDS. 



OHAPTEE I. 

INTRODUCTORY. 



It is intended in the following chapters to discuss the Nature of 
chief points in the law of copyholds, including in that term ^^ ° * 
all those customary estates the title to which is not only 
modified but altogether constituted by local custom (a). 

The following is Littleton's definition : — " Tenant by 
copy of court-roll is as if a man be seised of a manor, 
within which manor there is a custom which has been used 
time out of mind of man that certain tenants have (been) 
used to have lands and tenements to hold to them and 
their heirs in fee simple or fee tail, or for life, &c., at the 
will of the lord according to the custom of the same manor. 
And such a tenant may not aliene his land by deed, for 
then the lord may enter as into a thing forfeited xmto him. 
But if he will aUene his land to another, it behoves him 
after the custom to surrender the tenements in court into 
the hands of the lord to the use of him that shall have the 
estate. And these tenants are called tenants by copy of 
oourt-roll, because they have no other evidence concerning 
their tenements but only the copies of court-roll. . . . And 
although some such tenants have an inheritance according 

(«) Broum^s Case, 4 Hep. 21a ; Ck). Intt. 113 b; Cra. "Dig. tit. 10, o. 1. ^ 
£. B 



THE LAW OF COPYHOLDS. 

to the custom of the manor, yet they have but an estate 
at the will of the lord according to the common law " (6). 
Copyholds may therefore be compendiously described as 
estates in some parcel of a manor, founded on the lord's 
grant and tenant's admittance enrolled in the customary 
court, amoxmting in law apart from the custom to mere 
tenancies at will, but where the custom comes into question 
having a more permanent character.- In the same land 
the lord has a freehold and the tenant a customary estate. 
They are mainly distinguished from freeholds by this cri- 
terion, that all alienations must be in part at least trans- 
acted in the lord's customary court ; and hence the proper 
evidences of title to such estates are copies of the court- 
rolls, and the tenants are denominated copyholders (<?). 
Except xmder certain special circiunstances which will be 
afterwards mentioned, a copyhold estate cannot be alien- 
ated by any common-law conveyance. 
Customary Besides copyholds' at the will of the lord, there are some 

customary estates which are held according to the custom 
of the manor, but not at the will of the lord. These are 
called customary freeholds, and were at one time considered 
to be of a freehold nature (d) ; but it is now settled that 
they are of the nature of copyholds, and that the freehold 
inheritance is in the lord of the manor (e) ; and there are 
besides some other varieties of copyholds, which will be 
afterwards described. 

There are also several kinds of freehold tenure, in which 
the title is modified, though not constituted, by local 
custom; and these must be carefully distinguished from 
the customary freeholds mentioned above. It will be 
convenient to give a short accoxmt here of some of the 
ancient tenures, in order to make dear the distinction 

{b) litt. 88.73— 76, 77;Oo.Litt. {e) Siephenton t. mu, 3 Burr. 

67 b— 60 a. 1273 ; Thompson t. Sardingey 1 C. B. 

{o) Burt. Oomp. 88. 1268—1263. 940 ; Portland {Duke of) t. JSTW, 

\d) Galev, KobU, Carth. 432; and L. R. 2 Eq. 766. 

see Bingham y. Woodgate, 1 R. & K. 3 2. 



freeholdfi. 



INTRODUCTORY. 

between fhoee estates which are wholly supported bj 
enstom and those which merely haye oertaiQ oustomary 
qualitieB and incidents. 

The chief diyifiion of tenures was based in part upon DiTision of 
the certainty or nncertainty of the amount of service due, *®^™^^ 
and in part upon the supposed dignity or baseness of the 
service. 

In the spiritual tenure of frankaJmoigne, or free alms, Frank- 
and in all Uie nulitary tenures, the services were both free "™®*fif^" 
and uncertain; but from all other free tenants a fixed 
amount of services was due, and their holdings were in- 
dnded under the general name of socage(/). This term Tenure m 
seems to hare been originally applied to fixed services of *^^fif®* 
husbandry. Where these rustic services had not been 
ocmmuted for a money-rent, the tenure was called villein 
socage, as distinguished from free and common socage. 
The term villein socage is also used as an equiyalent for 
privileged -villeinage. 

Where the service was of a base kind, the tenure was at Tenure in 
first known as villeinage, of which there were several kinds, ^"^£^^ 
some of which developed into copyholds, while the rest 
have long since become obsolete. Littleton, in defining 
the term, said : — " Tenure in villeinage is most properly 
when a villein holdeth of his lord, to whom he is a villein, 
certain lands or tenements according to the custom of the 
manor, or otherwise at the will of his lord, and to do his 
lord villein service ; . . .\ and some free men hold their 
tenements according to the custom of certain manors by 
such services, and their tenure also is called tenure in 
villeinage ; and yet they are not villeins, for no land held 
in villeinage, or villein land, nor any custom arising out 
of the land, shall ever make a free man villein "(^). Of 
the various kinds of villeinage, the most important were 
pure villeinage and privileged villeinage. 

Pure villeinage was where a serf held land of his master 

(/) Co. Copyh. 8, 18. iff) latt. s. 172. 

b2 



THE LAW OF COPYHOLDS. 



Castoxoary 
tenants in 
Tillemage. 



on condition of doing what lie was bidden, or where either 
a free man or a serf held land at the will of the lord 
according to the custom of the manor by base and uncer- 
tain service (A). Privileged villeinage was where land was 
held according to the custom of the manor by services 
which were base and servile, but certain and expressed by 
name(t). Tenants of the latter class were most usually 
found in manors belonging to the Crown. 

At some very early time most of the dues and services 
of all these customary tenants in villeinage were reduced 
to a certainty, and were recorded in the court-rolls. Cus- 
tomary tenants in villeinage were described in the Dialogue 
of the Exchequer compiled in the time of Henry II. They 
are mentioned in the writ called Extenta ManeiHi^ printed 
among the statutes made in 4 Edw. I., in the follovnng 
terms: — "It is to be inquired also of the customary 
tenants, how many they are, and how much land each 
holds : what are the services of each in work or customary 
payments : what the works and customary services of each 
are worth yearly: how much rent of assise besides the 
work and customary dues each pays yearly, and which of 
them may be taxed at the will of the lord, and which not." 
As early as 1368 they are called tenants by the roll 
according to the will of the lord (A). In the reign of 
Henry YI. it was held that a customary tenant ejected by 
his lord had no remedy but to petition in the lord's court (/) . 
But in the reign of Edward IV. it was held that a copy- 
holder, observing the custom and performing his services, 
might have an action of trespass against the lord who 
ejected him (m). It was soon afterwards acknowledged 
that the vnll of the lord was exerciseable only according 
to the custom of the manor, and the customary tenants 



(A) Litt. 8. 172. 
(i) Braoton, L o. 11, fo. 7. 
(k) Yearb. Mich. 42 Edw. HI. 
fo. 26. 



(/) Litt. B. 77; Fltzh. Abr. 
"Subpena," 21. 

(m) Yearb. Mich. 7 Edw. IV. 
19, and Mich. 21 Edw. lY. 80 b; 
Ck>. Litt. 61 a. 



INTRODUCTORY. (j 

thus obtained a kind of owneTship, which from its liahility 
to arbitrarjr fines and quit-rents was at first little better 
than a tenancy at rack-Tent. 

As other tenures in villeinage disappeared, there re- 
mained in the end three kinds of customary tenure which 
are now all called copyholds, and which differ rather in 
the history of their origin than in the rules by which they 
are governed, viz. : — 

1. Copyholds proper, which are described as parcel of Division of 
the manor held at the will of the lord according to the ~Py^«^- 
custom of the manor. 

2. Customary freeholds, or customajyholds, which are 
described as parcel of the manor held according to the 
custom thereof, but not at the will of the lord. 

3. Tenant-right estates, which are the customary free- Tenant-right 
holds of the northern parts of England, and are found in ®* 

the north of Yorkshire, in that part of Lancashire called 
0?er-Sands, in the south-west portions of Dui^ham and 
Northumberland, in "Westmoreland, and over the whole of 
Cumberland («). 

The qualities of these tenant-right estates were discussed 
by Lord Ellenborough in an important judgment, from 
which the following sentences are extracted : — " These cus- 
tomary estates, known by the denomination of tenant-right, 
are peculiar to the northern parts of England in which 
border services against Scotland were anciently performed 
before the union of England and Scotland under the same 
government. And although these appear to have many 
qualities and incidents which do not properly and ordi- 
narily belong to villeinage tenure, either pure or privi- 
leged (and out of one or other of these species of villeinage 
all copyhold is derived), and also have some which savour 
more of military tenure by escuage certain, which was 

(jf) B. P. Comn. 3 Bep. 20. See cording to the custom of hius- 

Co. Gopyh. s. 32. See also as to bandry of the manor, who were 

tenanta by bozder-serricee and the held to be copyholders, Broton v. 

defence of Tynemouth Castle, ac- lUwUns, 7 Easi^ 409. 



6 



THB LAW OF COPYHOLDS. 



Local free- 
hold tennzes. 



knight-servioe ; and although they seem to want some of 
the characteriBtic qualities and oiroumstanoes which axe 
considered as distinguishing this species of tenure, viz., 
the being holden at the will of the lord, and also the usual 
evidence of title by copy of court-roll, and also are alien- 
able contrary to the usual mode by which copyholds are 
aliened, viz., by deed and admittance thereon; notwith- 
standing aU these anomalous circumstances, it seems to be 
now so far settled in courts of law that these customary 
tenant-right estates are not freehold, but that they fall in 
effect wifliin the same consideration as copyholds, (so) that 
the quality of their tenure, in this respect, cannot properly 
any longer be drawn in question " (o). 

The military tenures being abolished in 1660 by the Act 
12 Gar. 11. c. 24, the only freehold tenures now remaLoing 
are the ecclesiastical tenure of free alms and the various 
kinds of socage. Among these are the local tenures of 
ancient demesne, burgage, 'and gavelkind, the nature of 
which it is necessary briefly to discuss. Difficulties have 
often arisen from an indiscriminate application to copyhold 
cases of arguments derived from the rules applicable to 
these freeholds with customary incidents, which must not 
be confoxmded with the customary freeholds mentioned 
above. The same remark applies to those manorial socage- 
holdings which survive in so many parts of the country, 
the free tenants of which resemble copyholders in many 
respects, as in the liability to customary heriots and reliefs, 
fines upon alienation, and the like (p). 

Ancient demesne is a tenure confined to socage lands 
held of the 1,422 manors which were described as Terra 
1^0 1, /. ^ -^^^ jffe^M in Domesday Book (j'). The Real Property Com- 



Ancient 
demesne. 



(o) Jke d. Sj^ay v. BuniwigUm^ 
4 East, 271. See also BurteU t. 
DiMy 3 B. & P. 878. 

(jt?) See Fastinffham t. JPitty, 17 
C. B. 299 ; Damerell t. Protheroe, 10 
Q. B. 20 ; Warrick t. QuemU Ooll, 



Oxford, L. B. 6 Gh. 716. 

(^) Bracton, i. c. 11; Britton, 
c. 66 ; Fleta, i. c. 8 ; Co. Copyh. 
0. 32; 4 Inst. 269; B. P. Comrs. 
3 Bep. 12, 13. 



(Ll^ k (^f^4L^ f^ ^ ^U^^*^^^ 4r /-^M^^i^- .^^, ^i.iCi.,Ji, 



INTRODUCTOEY. 



• 



missloners stated that there was some oonfusion in the law 
books respecting this tenure : '^ The copyholders of these 
manors are sometimes called tenants in ancient demesne, 
and land held on this tenure is said to pass by surrender 
and admittance. This appears to be inaccurate. It is only 
the freeholders who are tenants in ancient demesne, and 
their land passes by conmion law conveyances without the 
instrumentality of the lord." They added that the timber 
and minerals belonged to the tenant, and that the rent, 
fines, and services were certain. 

There are, however, as a rule in manors of ancient 
demesne customary freeholders, and sometimes copyholders 
at the will of the lord, as well as free tenants in ancient 
demesne properly so called. The freeholders have in 
many instances peculiar customs of descent, dower, cur- 
tesy, &o. In some places the freehold descends to the 
youngest son by- a custom of borough-english, or to the 
youngest instead of the elde^ male in each degree, or to 
the youngest or eldest among the daughters, or to all the 
males equally as in gavelkind. The tenure has become of 
small importance since the exceptional privileges of the 
tenants have been altered by the Act 3 & 4 WiU. TV. 
c. 74 (r). Before that time the tenure might be converted 
to common socage by the joint act of the lord and tenant, 
or by the act of the tenant alone if the lord failed to bring 
his writ of deceit. 

Burgage tenure prevails only in certain cities and Burgage, 
boroughs, which have existed as such from time imme- 
morial. Littleton says : '^ For the greater part such 
boroughs have divers customs and usages which be not 
had in other towns ; for some of them have such a custom, 
that if a man have issue several sons and dieth, the 
youngest son shall inherit all the tenements which were 
his father's within the borough, as heir to his father by 
force of the custom: which is called borough-english. 

(r) Sects. 4, 5, 6, 40. 



6 THE liAW OF COPYHOLDS. 

Also in Bome boroughB the wife shall have for her dower 
all the tenements which were her husband's " (s). In some 
other boroughs the widow has a moiety during her widow- 
hood, or some other customary portion. Borough-english 
was so called in opposition to the law of descent prevailing 
in the towns under Norman law. Thus Nottingham was, 
as late as 1713, divided into the English borough and the 
French borough ; in the one, real property descended to 
the youngest son in burgh-Engloyea^ or borough-english : 
in the other, to the eldest by the ordinary law, which they 
called hurgh'Fi'ancoyes {t), 
GaTelkind. The tenure of gavelkind, by which most lands in Kent 

are held, is a very ancient species of socage, the name 
being derived from the old word " gafol," which signifies 
rent paid either in money, produce, or the performance of 
works of husbandry. Its principal incidents are the parti- 
bility of the inheritance among the males in each degree, 
the right of the widow and widower to have half the land 
for dower or curtesy until a second marriage (the widower 
taking his customary estate by the curtesy whether issue 
has been bom of the marriage or not), the freedom from 
escheat for felony, and the infant's right to aJiene by 
feoffment at the age of fifteen years. In many places in 
Kent the freeholders are subject to customary heriots, 
fines, and other ancient dues, and are compellable under 
penalty of distress to come for admittance into their 
tenancies. 

The most, remarkable incident of this tenure being the 
partibility of the land upon descent, the word "gavel- 
kind " has come to be applied to many copyholds which 
only resemble the freehold tenure in this particular : but 
this use of the word is improper, and apt to lead to 
mistakes. There are some few copyholds in the county, 
which generally follow the customs of gavelkind freeholds. 

(*) Litt. 88. 162, 163, 166, 166 ; {t) Yearb. Pasch. 1 Edw. IH. 12, 

Co. Litt. 109 a— 111 a. pi. 38 ; Bob. Oav., App. 



INTEODUCTORY. 9 

If sach a copyhold is enfranohised the oustoms are extin- 
gnished (u) : but nothing less than an Act of Parliament 
can alter a custom attached to a freehold tenure, which is 
said, therefore, to " run with the land," or be " inherent in 
the land"(2T). There was at one time a practice of dis- 
gayelling by royal prerogative, or under royal licence, 
which soon became obsolete. 

A great number of estates in Kent were afterwards dis^ 
gavelled by Acts of Parliament, which extended, however, 
only to the custom ef partition of descent (y). The list of 
Acts includes the pubUc Act of 31 Hen. Vill. o. 3, and 
the private Acts of 11 Hen. VII. c. 23; 15 Hen. VHI. 
c. 19; 2 & 3 Edw. YI. c. 1 ; 1 Eliz. c. 7; 8Eliz. c. 10; and 
21 Jac. I. o. 36 (2). 

All lands in this county are presumed to be held in 
gavelkind, until the contrary is proved. The test lies 
in proof of the tenure at the time of the Norman con« 
quest, for ^'the law of gavelkind is unlike other oustoms; 
it is not good if it begins just before the reign of Bichard 
the First. This custom existed long before other customs, 
and almost before any history of England." No land 
IB now gavelkind which can be shown to have originally 
been held by a tenure higher than socage, such as frank- 
almoigne, or one of the military tenures. If the manor 
was originally in the superior tenure, the demesnes, wastes, 
advowsons, the freehold of the copyholds, and rents and 
profits arising out of the soil and belonging to the manor, 
are still held in free alms or in conunon socage, and not by 
the customary tenure (a). 

A manor properly consists of demesne lands, jurisdiction Nature of 
in a court-baron, and services of free tenants in fee liable °**"^"* 

(u) See post, o. xi. aee Bob. Gay., App., and Elton, 

{x) Dickson^s Case, Hetl. 64, 65. Ten. of Kent^ 0. 16. 

(y) Co. litt. 140 b ; Wiseman t. (a) lushingicn t. Llandaff {Bishop 

CUUm^ 1 Sid. 135 ; Doe d. Bacon y. of), 2 N. B. 491, 506 ; Bob. Gay, 

Brjfdges^ 6 H. & Or. 2S2. 57, 63 ; Elton, Ten. of Kent, 183— 

(«) For lists of the landfl affected, 190. 



10 



THE LAW OF COPYHOLDS. 



to escheat and owing attendance at the court (b). If the 
number of such tenants is reduced below two, the court 
cannot be held, and the manor ceases to exist (c), but may 
survive as a manor by reputation for the purpose of making 
a title to franchises or for holding copyholders' courts (d). 
If all the demesnes are alienated the manor as such is 
extinguished and can be no more than a lordship in gross, 
and a temporary severance of all the demesnes, as by 
a lease for years (€), will cause a suspension of the 
manor (/). 

Q-enerally speaking, a manor is not divisible (^), but 
there appears to be an exception to this rule in the case of 
/far- 2^^ '^^ a partition among coparceners. In an early case it was 

agreed that if upon such a partition the demesnes were 
allotted to one sister, and the tenants' services to another, 
there would indeed be an absolute extinction ; yet, if one 
died without issue and the other inherited, the manor 



Whether 

manor 

divisible. 



(b) JDelacherois y. JDelaeheroU, 11 
H. L. Gas. 62. 
(e) Bradihauj t. Lavoion^ 4 T. B. 

{d) Curson y. Lomaz, 6 Esp. 60 ; 
8o€me T. Ireland^ 10 East, 259 ; and 
Beei>otf d. Clayton y. TTiUiamSf 11 
M. & W. 803. 

{e) Marsh y. Smith, I Leon. 26, 
27 ; Sartop y. Dolby, Hetl. 14. 

(/) Ab to the antiquity and oon- 
stitution of manors, see Glover y. 
Lane, 3 T. R. 445 ; Soane y . Ireland, 
10 East, 259 ; Go. Gopyh. s. 31 ; 
2 Bro. Abr. "Tenures," 102; 2 
Bo. Abr. 120. Some writers haye 
thought that manors might be 
created at any time before the 
statute Quia Emptoret, 18 Edw. I. 
0. 1 , which was extended to tenants 
in eapite by the statute J)e JPrtero^a' 
tiva Regie, 17 Edw. II. st. 1, c. 6. 
Manors existed in their present 
form early in the eleventh century, 



and in a yery similar form tiiey 
extend to a much more distant 
antiquity. There seems no reason 
to suppose that the number of legal 
manors was eyer much increased 
after the Norman Gonquest in the 
settied parts of England. Although 
fresh tenures might be created, the 
right to hold a new court was a 
matter of royal prerogatiye, and 
after a time it was held that even 
the king could not make a new 
court, *' for matters which depend 
upon the continuance of time come 
not within the compass of the 
king's prerogatiye": Go. Gopyh. 

8.31. 

{(f) Bright y. Forth, Gro. Eliz. 
442; Sir Moyle Finch* e Case, 6 
Bep. 63 a ; The Queen y. Bueeleugh 
{Buehess), 6 Mod. 150. As to par- 
tition of manors by decrees of the 
Gourt of Ghancery, see Caitley y. 
Arnold, 4 E. & J. 595. 



INTRODUCTORY. 



11 



would revive, because on {he partition they were in by the 
act of the law, and the demesneB and servioeB were united 
again by another act of law {h). 

To take a fuller definition, a manor may be desoribed as What a 
oonriflting : 1, of the demesnes of which the lord is seised, ^prf^*^ 
whether in his own occupation or in that of his lessees for 
years, which comprise also the waste lands subject to the 
tenants' rights of common, and also the lands of the copy- 
holders and customary tenants which at law, and apart 
from the custom, are regarded as a kind of tenanoies at 
will (t) ; 2, of the services, or the rents and duties reserved 
upon the original grants in fee, made to the freehold 
tenants before the statute Q^ia JEmptores, 18 Edw. I. c. 1, 
amoe which no fresh tenures could be created ; 3, of the 
reversion in those parts of the demesnes which have been 
granted for Uf e or for an estate-tail, to which may be added 
that kind of possible reversion which consists in the right 
of escheat on the occasion of a tenant dying intestate and 
heirless; 4, and there are in general, either annexed or 
appurtenant to the manor, a variety of franchises, such as 
the right to have a court-leet, waifs and strays, or treasure- 
' trove, the lib^:ties of holding fairs and markets, of taking 
tolls, and the like (k) ; and 5, a court-baron for the free- 



(A) Yearb. Trin. 12 Hen. IV. 
fo. 26 ; Yearb. Trin. 26 Hen. VIII. 
&. 4, pL 16 ; Thetford t. Theifird, 
1 Leon. 204; Sir MoyU Finch' m 
Ctuet 6 Kep. 68 a. In foimer times 
there were numeroufi examples of 
fhe BerenCnce of niaaon between 
oa-heizeeses at law or oo-heirs in 
gftTcSdnd, and in one instance a 
dowager's third was treated as a 
manor hy itself: Bragg^M Case, 
Ck)db. 13d. 

(i) Att'Om. T. FarMU, 2 Cr. & 
J. 279. 

(*) Franchises are defined to be 
Koyal priTiIeges or branches of the 



king's prerogatiTe, subsisting in a 
subject hj grant from the crown, 
or under a prescription implying a 
grant. They are chiefly of two 
kinds, viz. : 1, those which were 
parts of the prerogatiYe originally, 
as the right to wreck, to the goods 
and chattels of felons, &c. ; and, 
2, those which could have no exist- 
ence until their creation by the 
crown. The first, but not the 
second class, are merged in the 
prerog«tiYe when the crown ac- 
quires the lands to which they are 
annexed, and will not pass as ap- 
puirtexiant to tlie land upon any 



12 



THE LAW OF COPYHOLDS. 



Alienation 
of the 
demesnes. 



holders and a customary court for the copyholders (if any) 
are necessary incidents to every manor. The manor is 
presumed to be conterminous' with the parish (/) ; but it may 
comprise more than one parish or township, or may consist 
of a smaller district (m). Where the manor is or has been 
of the same extent as the parish, it will usually have an 
advowson appendant to the demesnes which will pass with 
the manor (w), but if once severed will be turned into an 
advowson in gross. When the manor abuts upon the sea, 
the fore-shore between the high and low watermarks of the 
average.tides may be paxcel of its waste land, and this is 
generally the case when the lord has by grant or prescrip- 
tion the franchise of taking wreck (o). Without any of 
these profits the lord has rights of appointing officers, and 
of general superintendence, which make the ownership of 
a seignory more than a mere " feather in the cap," and 
render it in any case a valuable right susceptible of pos- 
session and actual enjoyment (jt?). 

Since no new tenure might be created since 18 Edw. I. 
by any private person on any conveyance in fee simple, 
upon the alienation of any of the demesnes they cease for 
ever to be parcel of the manor, and new services cannot be 
reserved ; and even if freehold lands escheat to the lord or 
are purchased by him, they cannot become parcel of the 
manor again, and will not peiss by a conveyance of ^' the 
manor and lands belonging thereto." But all the lands 



new grant without express words, 
.either mentioning the franchise 
which was merg^, • or at least 
stating that the new g^ntee shaU 
hold the land **in as large and 
ample a manner as the former 
owner held it '' : Abbot of Strata* 
Mereelld's Com, 9 Hep. 24 a ; JRex y. 
Capper, 5 Price, 217, 258. For an 
account of the principal franchises, 
Bee post, c. vii. 

(I) Blackst. Oomm. i. 113, lU. 

(m) Bracton, iy. c. 81, fo. 212 ; 



Co. Litt. 68 a. 

(«) Higgint v. Grant, Cro. Eliz. 
18 ; hooper y. E:arrit<m,2 K. & J. 86 ; 
Att.'Gen. v. SitweU, 1 Y. & C. Ex. 
659. 

(o) Sir Henry Conttable^t Case, 6 
Bep. 106 a, 107 a; £x parte 2bm- 
line,2ie WalUm-eum'Trimley Manor, 
21 W. R. 475 ; Att,-Gen. t. JBmer- 
ton, [1891] App. Gas. 649. 

(p) ChrUtehureh {Dean and Ch.) 
V. Buckingham (Duke of), 17 C. B. 
N. S. 391. 



INTKODUCTORY. 



13 



which originally fonned part of the manor, or were held 
of ity are said to lie within the ambit of the manor, and 
in some points ieure subject to the jurisdiction of its courts, 
and in conmion parlance are said to be still ** within the 
manor" (g). 

The devise of a manor carries everything appendant or l>evi«e of 
appurtenant at the time of the testator's death, unless a 
contrary intention appears by the will (r). 

The conveyance of a manor will carry the profits, includ- Conveyance 

• • "1 J jtI i •* xi • "i. of manor. 

mg minerals under the wastes, even if their existence was 
not known when the contract was made(9); and now all 
usual rights incident or belonging to a manor will pass 
under its name, unless a contrary intention appears, by 
virtue of the Conveyancing and Law of Property Act, 

1881(0. 

It was formerly held, that if the lord granted away the 
freehold of all the copyhold lands, or several of them, 
the grantee would have a kind of manor and might hold 
courts (it). But it is now settled that the land is severed, 
that no courts can be held, and that the customary estates 
must be dealt with by common law conveyances, although 
the copyholders are still said to hold by their custo- 
mary tenure, and to be liable to all such payments and 
servioes as are not connected with attendance at a 
court (x). 

With respect to the subjects of copyhold tenure. Lord Subjecte of 
Coke says that " all lands and tenements within a manor, tenure! 
and whatever concerns lands or tenements, may be granted 
by copy '* (y), and he selects as eixamples : 1, a customary 



[q) Delaehtroii y. Belaeheroii, 11 
H. L. Gas. 62. This would seem 
sot to apply to escheated copyholds 
or lands enfranchised under the 
Copyhold Acts. 

(r) Eicki T. SiOliU, 3 De Qc, M. & 
G. 782. 

(«) AtU-Gm. T. E%celfM Hospxiaif 
17 Bear. 366. 



(0 Sect. 6. 

(u) Melwich y. LuUr, 4 Bep. 26 a ; 
Neale y. Jackson, 4 Bep. 26 h. 

{x) Bright y. Forth, Oro. Eliz. 
442 ; BeU and LangleyU Case, 4 
Leon. 230 ; FhiUips y. Ball, 6 0. 
B. N. 8. 811. Cf, Gilh. Ten. 200; 
Lemon y. Blaektcell, Skin. 191. 

(y) Co. litt 58 b. 



14 



THE LAW OF COPYHOLDS. 



manor (s) ; 2, underwood without the soil, or the separate 
herbage or vesture of land ; and 3, a fair appendant to a 
manor. ^' Things that lie not in tenure are not grantable 
by copy, as rents, commons in gross, advowsons in gross, 
and Buoh like, all which are incorporeal hereditaments and 
therefore no rent can issue out of them, neither can they 
be held by any manner of service. But an advowson 
appendant, a common appendant, or a fair appendant, may 
pass by copy, by reason of the principal thing to which 
they are appendant ; and generally what things soever are 
parcel of the manor, and are of perpetuity, may be granted 
by copy according to the custom, as underwoods, for after 
they are cut they will grow again ; and so of herbage or 
any other profit of the manor" (a) ; and he shows that 
there might be a copyhold grant of " twenty loads of hasel 
or as many of maple, in the disjunctive, to be cut down 
and taken by the grantee," or of " twenty trees growing 
upon Blackacre or Whiteacre to be cut down yearly by the 
lord and delivered to the grantee on such a day," and the 
like. 

The subjects of customary tenure are most usually por- 
tions of the demesne lands which have been demised by 
copy of court-roll from time immemorial as separate copy- 
hold tenements. By special custom, however, but in all 
cases with the consent of the homage-jury at a customary 
court, fresh portions of the waste might be granted as copy- 
holds (6) ; and where the sea-shore or a river-bed forms 
part of a manor there have been similar customs of granting 
portions for fishing-places, as fresh copyholds {c). But no 



(z) It was resolved in NevUWt 
Case, 11 Bep. 17 a, that a manor 
may be a oopyhold, and that the 
cnBtomary loid may hold courts 
and giant copies; that the copy- 
hold manor will pass hy surrender 
and admittance, and that its lord 
shall pay fines on descent and 
alienation. There can be no free- 



holders of snoh a copyhold manor 
or reputed manor. But see The 
King y. StanUmj Gro. Jac. 259. 

(a) Soe T. Taylor, 4 Bep. 30 b ; 
Co. Gopyh. s. 42. 

{h) ArUtt y. ElUt, 7 B. & C. 346 ; 
Northwiek {Lord) y. Stanway, 3 B. & 
P. 346. 

{e) Lord BerkeUy'i Gate in Hale, 



INTRODUCTORY. 16 

Greation of new customary tenements oan now be made 
except with the consent of the Board of Agricnltore as 
piOTided by the Copyhold Act, 1887 (J) , and the grant, if 
allowed, operates ipso facto as an enfranohisement {e). 

The tenement need not be a separate portion of the 
demesnes, but may be a '' shifting severalty " in an open 
field or meadow, or a lot-meadow divided into parcels the 
occupation of which is interchanged in a yearly course of 
rotation (/). On this point Lord Coke says : ^^ Albeit land 
1)6 the most firm and fixed inheritance, and fee-simple the 
most absolute estate a man can have : yet may the same 
at several times be moveable, sometime in one person and 
aliernis ticibus in another, nay, sometime in one place and 
sometime in another. As for example, if there be 80 acres 
of meadow which have been used time out of mind to be 
divided among certain persons, and a certain number of 
acres appertains to each of these persons, as for example, 
to A 13 acres to be yearly assigned and allotted out^ so 
as sometime the 13 acres lie in one place and sometime in 
another, and so of the rest': A hath a moveable fee-simple 
in 13 acres, and it may be parcel of his manor, albeit they 
have no certain place " {g). 

Almost any separate product of land, or a fixed share in 
any of such products, may be held by copy of court-roll, as 
the sole and several pasturage without the soil, the vesture, 
herbage, first-crop or ^' first-share," after-grass, ^' tonsare 
of meadows," and the like, another person having the 
Boil and every other beneficial enjoyment thereof as free- 
hold [h). Copyholders are often found to be the tenants 
in oonunon of woods, sometimes called dole-woods, of the 



De Jure Maris, c. 6; AiL'Om. f erred to the Board of Agricnltiire 

T. Mmenam, [1891] App. Gas. 649, by 52 & 63 Ykt. c. 80. 

658 ; and see Hunter, Hiafc. Son. (/) Pratt t. Oroome, 15 Eaat, 

Yoilnhite, i. 157. 235. 

(if) Sect. 6. (^) Co. litfe. 4 a. 

(r) llie powen and duties of the (A) Jam€i y. TiUney, Gro. Gar. 

Land Commiaaioners were trans- 497; StammertY.DiiPOHf 7 "Eaatf 200, 



16 



THE LAW OF COPYHOLDS. 



furze-bushes and underwood on a moor or waste, of the 
peat in a turbarj, and the like ; and shares in a common 
pasture, and the small plots of pasture in the midst of a 
waste, called " sheep-heaves *' in the northern coimties, 
with or without the ownership of the soil, are frequently 
the subjects of copyhold tenure (t). All these must be 
carefully distinguished from rights of common, since 
" independently of any question as to the proper mode of 
conveyance, the one right was vindicated by actions of 
trespass or ejectment, and the other by action on the case," 
and because rent may be reserved upon a grant of the 
undivided share, but not on a grant of common (k). 

On the question whether tithes could be held by copy of 
court-roll very contrary opinions have been expressed. But 
the weight of authority seems to be on the side of those 
who think that tithes impropriate could not be of copyhold 
tenure (/). Among other reasons in favour of this opinion 
is the fact that laymen were incapable of holding tithes 
until the dissolution of the monasteries, so that it was im- 
possible that there could be any customary descent with 



(t) Benson y. ChesUfy S T. R. 
396 ; Itiffg y. Lonsdale, 1 H. & N. 
923 ; Welcome v. Uptony 6 M. & W. 
636 ; Doe d. Kinglake v. Beviss^ 
7 0. B. 466. The right of each 
ioint-owner is often caUed a cattle- 
gate or stint, especially in the 
Northern counties ; a cattle gate is 
coi4(ddered equal to the pasture of 
one cow or five sheep, and three to 
be equal to the pasture of two 
horses. Pasture sufficient for a 
horse is called a horse-leaze in 
Dorset. Pasture for a sheep is 
called ^*a sheep-gate'' in the 
north, and ^* a sheep-leaze*' in 
Sussex. Other terms of a like im- 
port are beast-gate, calf-gate, 
cows-grass, pasture-gate, and ox- 
gang- 



{k) Co. Litt. 4b; Burt. Gomp. 
8. 1168 ; Cooke, Indos. 44. 

(/) In Hoe V. Taylor ^ Cro. Eliz. 
413, it was said that tithes maj 
be granted by copy, if the custom 
permits it ; and that it had been 
so resolved in Bournes Case (there 
cited) that a grant of tithes by 
copy was good. In Sands v. Drury^ 
Cro. Eliz. 814, the majority of the 
judges thought that tithes could 
not be parcel of the manor, and 
therefore could not be copyhold : 
and see Gilbert, Ten. 331. In 
Musgrave v. Cave, Willes, 319, 324, it 
was said that they might be parcel 
of a manor, and, if the custom would 
warrant it, might for the same 
reason be granted by copy of court- 
roll. 



' INTRODUCTORY. 17 

reqpeot to them. '^ They oould not deeoend from ancestor 
to heir, because they oould not be in the hands of any 
private individual" (»»). By the common law the right 
to tithes oould not be vested in any lay subject {n). 
■ It haSy however, been contended by writers of eminence, 
that rents, commons and advowsons in gross, and other 
incorporeal hereditaments, may be granted as copyholds, 
if by possibility they can ever have been parcel of the 
manor {o) . And the case of Musgrave v. Cave {p) is usually 
cited as an express authority for the position. In that case 
the court certainly expressed an opinion, that ^^ common, 
tithes, and other things of a like kind, may pass by copy 
of court-roll by themselves without any lands." But it 
seems probable that too much stress has been laid on the 
case in this respect. It was an action of trespass, in which 
the defendant had pleaded that he had the fourth part of a 
fold-course " or common of pasture " for so many sheep, 
which was parcel of the manor held by copy of court-roll 
at the will of the lord according to the custom. The 
plaintiff demurred, because it was not alleged " that the 
said fold-course or common of pasture was appendant or 
appurtenant to the manor, nor did it appear whether it 
was appendant, appurtenant, or in gross, or what other 
sort of right of common it was." It came before the court 
for judgment on the demurrer, and the only question was, 
** whether this right of common was well pleaded or not." 
It was held to be common appurtenant, because it evidently 
was of none of the other kinds, and the court overruled 
tile main objection, that it could not be parcel of the manor 
and yet be copyhold, because, as soon as it was once severed 
and granted without land, it must have ceased to be part 

' («) lM$hingUmY.Llandaff(Biahop in Bob. Qav. 108. 

•/), 2 N. B. 491, dedding that (n) Burt. Comp. s. 1205. 

audi tiiheB conid not be of the \o) Oilb. Ten. 331 ; 1 Bo. Abr. 

Batme of gaveUdnd. A similar 498 ; and see Soriy. Copyh. 105. 

OMe as to borough-english lands {p) Willes, 819. 

is died from Hughes' Abridgment 

E. C 



18 THE LAW OF COPYHOLDS. 

of the manor and so oould not afterwards be demised as 
copyhold. But it was held that, if it were once appurtenant, 
the tenancy at will of the copyholder did not sever it 
from the manor. ^^ As we are upon a demurrer, if this 
right of common as pleaded can be good upon any sup- 
position whatsoever, we must take it to be so." 

But although the case under discussion is an authority 
to show that incorporeal hereditaments of this kind may 
be copyholds, it is only indirectly an authority for the 
proposition that common appurtenant can be so held, and 
it does not decide that rents or commons in gross can be 
the subjects of customary tenure. 

Upon the whole it may still be fairly contended, that 
incorporeal hereditaments cannot properly be the subjects 
of copyhold tenure, unless they pass as incident to the 
corporeal copyhold tenement. " No service can be reserved 
or due upon the grant of incorporeal things, so that no court 
can be kept by the grantor, no attendance being due from 
the grantees of incorporeal inheritances: so as to them 
there is no lord, and consequently they cannot pass by 
surrender and admittance, and are not grantable by 
oopy"(?). 
Copyhold All the incidents of copyhold tenure, and the rules which 

determine what the tenant should or should not do, are 
determined by custom, of which there are two classes 
applicable to copyholds, viz. : (1) the general custom of 
copyholds extending to every manor, which is warranted 
by the common law, and may itself be described as part 
of the common law or general custom of the realm ; and 
(2) special or particular customs, which prevail only in 
certain districts, and which must be strictly proved and 
specially pleaded; such particular customs being of two 
kinds, either disallowing what the general custom allows, 
or allowing what it disallows (r). 

(q) Gilb. Ten. 332. the realm, that eTery oopjholder 

(r) Co. Copyh. s. 33 ; Oo. litt. may snrrender in oonrt and need 

63 a. '' It is the general custom of not allege any custom therefor. 



INTRODUCTORY. 19 

Cfostoms of this kind have 1)e6ii defined as ^^ local common 
law/' local because confined to a particular district, and 
oommon law as opposed to statute law («). The rules that 
costoms must be local, certain, reasonable, and continuous, 
apply rather to evidence of custom ; but it msj be stated 
generally that valid customs are confined to particular 
ancient districts, must have been peaceably used without 
interruption in the existence of the right, and being in the 
nature of local common law, must have been continuously 
nsed from time immemorial (^). By this it is not meant that 
there must be direct proof that the custom existed in the 
reign of Bichard I., but that there must be modem user from 
wUoh the immemorial origin maybe presumed, and nothing 
to upset the presumption ; except that in a case where a 
CQstomaiy claim is made under the Prescription Act, 2 & 
3 WiU. IV. c. 71, mere proof of modem origin will not 
prevail a^inst the jisage for the statutory period (u). It 
XB a role, also, that every valid custom must be reasonable, 
f. e.j not absurd, immoral, or prejudicial to the interests of 
the State, nor destructive of the property where the custom 
18 to be exercised, or of the copyholder's estate, but such 
88 can fairly be imagined to have originated in a local law 
or in an agreement before the conmiencement of legal 
memory (ar)- 

No usage can be established by way of custom, which 
vithin time of memory was allowed by the common law 
and since disallowed by statute. No custom can be set 
up against the express provisions of an Act of Parlia- 

So if oni of oomt lie gurrender to tnerton y. Soney^ 24 W. B. 603. 
fte lord himflelf, he need not aUege [i) Co. litt. 110b, 114b; Co. 

in pleading any custom. Bat if Copyh. s. 33 ; Case of Tanisiry, 

he sarrender oat of court by the Day. 28 a. 

bands of tiro or three copyholders, {u) Sect. 1 ; and see De la Warr 

i^c, or oat of court by the hand {^rX) y. MiUs^ 17 Ch. Diy. 636. 
of tay other, these customs are par- {x) Wilkes y. BroadbenC, I Wils. 

tJenlar, and therefore he most plead 63; Badger y. Ford^ 3 B. & Aid. 

fttttt." Co. Litt. 69 a. 153 ; Salisbury (Marguie of) y, Qlad'- 

fa) Per Jessel, M. B-, in Sam- stone, 9 H. L. Cas. 692. 

c2 



20 THE LAW OF COPYHOLDS. 

ment : but a statute merely declaratory of the commoii 
law, whether its form be negative or affirmative, will not 
affect the continuance of a local custom. ^*A statute 
made in the affirmative, without any negative expressed 
or implied, does not take away the common law " or affect 
the existence of a custom (y). 

(y) Co. Litt. 115 a, n. 8, 9 (Harg.) ; 2 Inst. 200. 



( 21 ) 



CHAPTER n. 



NATURE OF ESTATES IN COPYHOLDS. 



Before describing tlie modes of conveyance which are General rules 
appropriate to copyholds, it is proposed to treat in this JJ copyholds, 
chapter of the different kinds of estate which may subsist 
in copyhold tenements {a). The customary estates of copy- 
holders are in general subject to the same rules as those 
which relate to freeholds in respect of estates in con- 
tingency and expectancy, estates held in undivided shares, 
and equitable estates. But there are in many places 
special customs as to reversionary estates in copyholds for 
Uves, which will be noticed later. And as to contingent Contingent 
estates, it should be observed, that inasmuch as the free- 
hold is in the lord and not in the copyholder, a contingent 
remalader in copyholds was not destroyed (even before the 
Act 8 & 9 Vict. c. 106) by the forfeiture, surrender, or 
merger of the particular estate {b). 

As to undivided estates, it should be recollected that Undivided 
joint-tenants hold in a kind of partnership with benefit ® ^' 
of survivorship, having a joint title to the whole of the 
land in one right ; tenants in common have each a 
portion of the land, several though imdivided, and claim 
by separate titles or in separate rights ; coparceners, on the 
other hand, claim always by one title of descent, and are 
of an intermediate nature between joint-tenants and tenants 
in common, having one title but no benefit of survivor- 

(«) Par an analysis of the estates ments, see Go. Oopyh. s. 47. 
of difleient kinds wbich may exist {b) LoveU y. LweU^ 3 Atk. 11, 12 ; 

Inth in freehold and copyhold tene- FiekersffiU y. Grey, 30 Bear. 362. 



22 



THE LAW OF COPYHOLDS. 



Equitable 
estates. 



Trusts. 



ship ; it follows, that joint-tenants oaxi release after admit- 
tance but cannot convey directly to each other, and that 
tenants in common cannot release, while coparceners may 
adopt either method (e). 

Equitable estates in copyholds ^^ possess in general all 
those incidents of the customary property which directly 
concern the tenant, but not those which are established 
merely for the benefit of the lord : it being sufficient for 
the latter to have the person named in the roll for his 
tenant, without troubling himself to know that he is a 
trustee "(c?). The equitable interest maybe modified or 
subdivided in any way, so long as the custom governing 
the legal estate is not thereby infringed. But these limits 
must be observed : as where, for example, the custom of 
the manor does not permit entails of the legal estate, a 
limitation of the trust to a man and the heirs of his body 
will pass a fee conditional and not an equitable estate- 
tail (^). 

Copyholds are within the provisions of the Statute of 
Frauds ^^that all declarations or creations of trusts or 
confidences of any lands, tenements, or hereditaments, 
shall be manifested and proved by some writing signed by 
the party who is by law enabled to declare such trust, or 
by his last wiU in writing, or else they shall be utterly 
void and of none effect (/). But, as in the case of free- 
holds, there' are many constructive trusts of copyhold 
lands which are not governed by the rule thereby enacted. 
Such are resulting trusts, terms attendant on the inherit- 
ance by implication, and the equities arising from a 
vendor's lien, a trustee's renewal in his own name, a 
defective execution of power, the doctrine of election, 
equitable mortgage, and other equities arising by con- 



{e} Co. Intt. 188 b ; Benee ▼. Gil' 
pin, L. R. 3 Ex. 76. 
(^ Burt. Goxnp. 8. 1395. 



{e) JPullm y. Middleton {lord), 9 
Mod. 483. 

(/) 29 Oar. II. o. 3, ss. 7, 8 ; 
JFithers v. Withers, Amb. 151. 



NATURE OF SSTATBS IN COPYHOLDS. 23 

stmetion and implioation. Of these oonstraotiye trusts it 
is not neoessary here to give a detailed aooount. 

But the doctrine of resulting trusts is of such import- Besnltmg 
anoe in some copyhold cases, especially those concerned 
with copyholds for lives, that it ^*rill probably be useful to 
notice it at greater length. When a copyhold is sur- 
rendered to uses which do not exhaust the estate, and 
there is no evidence of intention to benefit the trustee, a 
resulting trust will arise in favour of the surrenderor, 
unless there should be evidence that no such trust was 
intended, as where the residue of estate is intended to be 
given up to the lord, or unless by the custom of the manor 
a surrender without a proper limitation of the uses is con- 
strued to give a particular kind of estate. When a copy- 
hold is purchased in the name of one person with the 
money of another there arises a presumption of the exist- 
ence of a resulting trust, which can only be upset by 
showing that an advancement in Ufe was intended for the 
nominal purchaser, who, being a child or in the place of a 
child, or wife, or blood-relation of the person who paid the 
money, is nominated by him to have the legal estate. If 
the nominated purchaser stands in one of these relations 
with the person who finds the money, an advancement will 
be presumed to have been intended, unless there is 
evidence of facts contemporaneous with, or practically 
forming part of, the transaction in question,'to show that 
the nominated purchaser was to hold as a trustee. Upon 
the same principle, when the purchase-money is advanced 
by two persons unequally, a conveyance to the use of 
them and their heirs will be held to create a tenancy in 
conunon in shares proportionate to the money respectively 
advanced, and not a joint-tenancy (g). 

There may be terms of years in copyholds (h) distinct Terms in 
from legal terms, and these may be made to attend the ^^^ ^ 

(^) Dyer v. Dyer, 2 Cox, Ch. Ca. 1 Burr. 206 ; Everingham t. Ivait, 
92. L. B. 7 Q. B. 683, L. B. 8 Q. B. 

(A) See Bath {Earl of) v. AbHey, 388. 



24 THE LAW OF COPYHOLDS. 

OTistomarj inheritanoe, either by a deolaration of trust to 
that effect, or by* implication, when the same person has. 
the inheritance and the title to the term of years, but the 
one as a legal and the other a^ an equitable estate, or when 
both the interests so vested in one person are equitable 
estate. These attendant terms are not often found in 
copyhold titles ; and copyholds not being within the pro-* 
visions of the Satisfied Terms Act, 8 & 9 Vict. c. 112 (t), 
in such cases it may be necessary to trace the title of such 
terms during the whole period of their existence (A:). 

Usee. The legal as well as the equitable estate in a copyhold 

tenement may be limited in ways that were only allowed 
in the case of freeholds when a conveyance takes effect 
under the Statute of Uses, although the statute itself does 
not apply to copyholds, a copyholder being entitled to 
surrender directly to the use of his wife, or of himself and 
another. Powers of appointment and springing and shift- 
ing uses may be created in the declarations of uses upon 
copyhold surrenders, as well as in conveyances of freehold 
estates, so that the estate conveyed may be modified from 
time to time in any manner, a remainder may be limited 
after a fee simple, or a fee simple may be made to arise in 
futuro{l). 

Maximum of The custom of cach manor will determine the maximum 
degree of property which the copyholders may have in 
their customaiy tenements. In most places they have 
customary estates in fee simple ; but in some manors the 
highest estate known is a customary kind of entail, and 
elsewhere the copyholds are all held upon lives or for terms 
of years. It may happen that in the same manor one set 
of tenements is grantable in fee, and others for lives only, 
or for years and for no greater estate ; and these differ- 
ences of usage apply as well to customary freeholds bs to 
copyholds in the limited sense of the word. When copy- 

(i) Sect. 3. (/) Boddington y. Ahemethy^ 6 B. 

{k) Day. Gone. Free, in Cony. & G. 776 ; Sex y. Oundle Manor 
26. {Lord qf),lA.& E. 288. 



estate. 



NATUBE OF ESTATES IN COPYHOLDS. 25 

holds are said to be grantable for some particular estate 
aad in no other way, it is a role that the lands may still 
be granted for any estate less than the maximmn of in- 
terest grantable under the custom. The power to make 
the greater estate implies the power to make the less, so 
that a copyhold of inheritance may be aliened ^f or any 
estate less than a fee simple or than a customary fee tail, 
as the case may be, and a copyhold held upon lives may 
in like manner be granted for any estate less in amount 
than the highest interest authorised by the custom (m). 
Bearing this rule in mind, it will be found convenient to 
treat separately of the various estates which are found 
existing in copyholds of inheritance, copyholds for lives, 
and copyholds for years respectively. 

I. — Copyholds op Inheritance. 

In copyholds of the first kind the tenant may have a Estates in 
customary fee, or any less estate. As in the case of free- ^f ^^un* *** 
holds the estate in fee may, according to the circumstances, 
be absolute, conditional, or qualified. ^' All inheritances 
are of two sorts, either fee simples or fee tails. Of fee 
simples some are determinable, some are imdeterminable. 
Determinable, as where land is given to a man and his 
heirs so long as Paulas steeple shall stand ; imdeterminable, 
as where land is given to a man and his heirs without 
further limitation. Of fee tails, some are general, some 
are speciaL General, as where land is given to a man and 
the heirs of his body, or heirs male or female of his body ; 
special, as where land is given to a man and the heirs, 
male or female, which he shall beget of such a woman"(9^). 
The customs of a great number of manors authorise the 
creation of estates taU. 

A conditional fee is where the estate is given to a man 
and his heirs, on condition that something shall be done, 
or to cease when something is done, or unless some act 

(«) OropenoTT. Todd, 4 Bep. 23 ». (ft) Go. Gopyh. b. 47. 



26 THE LAW OF COPYHOLDS. 

shall be done or something happen within a givei> time. 
And in manors where entails of oopyholds are not allowed 
a limitation, which otherwise would create an estate tail, 
will, as when legal entails were unknown, pass an estate 
similar to a " fee conditional at common law," or in other 
words, ^ fee upon condition that the tenant shall have 
issue. Upon the birth of a child, the estate is at once 
enlarged into a fee simple absolute. Before such birth, 
the tenant can only aliene a defeasible estate, subject to the 
"possibility of reverter" or chance of the estate going 
back to the donor upon failure of the condition. If, how- 
ever, the tenant can acquire this " possibility " for his own 
benefit before the birth of issue, the lesser estate will merge 
in the greater, and the conditional quality of the fee wiU 
at once be discharged (o). ^ 

A qualified or base fee in copyholds (as in freeholds) is 
an estate given to a man and his heirs until the happening 
of some event, or so long as a given state of things shall 
continue. The commonest example of this estate (to which 
the name of base fee is especially applied) is where a 
tenant in tail disposes of the land in fee without the con- 
sent of the protector of the settlement. This will pass an 
estate in fee qualified to last so long as there shall be issue 
in tail of the disposing tenant in tail. 
Customary Copyholds are not within the statute De Donis, 13 

Edw. I. c. 1, but may be entailed if there is a custom 
to warrant it(j)). The limitation maybe either in tail 
male or tail female, and either in general or special tail ; 
and on the death of one of the parents, who are tenants in 
tail special, the other will have an estate tail after possi- 
bility of issue extinct, as in the case of a freehold. In 
conformity with the rules respecting freehold estates, and 
to prevent any estate being inalienable, it was held that 
the entail might be barred in one of the f oUowing ways, 

(o) Go. Litt. 19 a; Doe d, Spencer (p) Moe d. Crow v. BMwere, 6 
T. Clark, 6 B. & Aid. 458. T. B. 104. 



NATURE OF ESTATES IN COPYHOLDS. 



27 



''as a means of untettering estates and to prevent perpe* BarolentaiLi. 

tuities," viz., (1) by a customary recovery (y), if suffered 

in the lord's court prior to January 1st, 1834, this method 

having been abolished by the Fines and Becoveries Act, 

3 & 4 Will- IV. c. 74; (2) by a surrender (r), especially 

it Uiere were no special customary method («) ; and it should 

he observed that a custom to bar by surrender might subsist 

concorrently with a custom to bar by recovery (^), and 

that very slight evidence was held sufficient to prove 

a custom to bar by surrender (w) ; (3) by the special 

custom of working a preconcerted forfeiture to the lord, to 

be followed by a fresh grant of the inheritance (tr) ; and 

(4) by a grant of the freehold to the copyhold tenant in 

tail (x). Before 1834, where there was a special custom 

upon the matter, the same mode of barring an equitable 

entail had to be pursued as was required by the custom 

with respect to an entail of the legal estate (y) ; in other 

cases, any act expressing the intention to destroy the 

equitable entail would have had the desired effect. The 

Act 3 & 4 Win. IV. c. 74, however, abolished fines and 

recoveries, and provided new methods by which estates 

tail, and interests expectant thereon, might be barred; 

and it enabled a tenant in tail to make an effectual ckliena- 

tion by the execution and enrolment of any deed such as 

ihat by which a tenant in fee could have conveyed. 

The provisions of the Act relating to estates tail in Fines and 
copyholds are contained in sect. 50 and the four following ^^venea 



(q) Doe d. WightwUk y. Truhy^ 2 
W. BL 944. 

(r) Eterall y. SmaOey, 1 Wik. 
26. 

(«] Oiieay y. Sud$ony 2 Yem. 683 ; 
Moww y. Mbare^ 2 Ves. 696 ; Carr 
y. Sm^, Hid. 603 ; Oaold y. fFTnU, 
EL 683. 

(0 Ertratt y, SmaUey, 1 Wils. 
26; JDm a. Wightunek y. Trtiby, 
-2 W. Bl. 944. 



(t«) Roe d. Bennett y. Jeffery^ 2 
M. & S. 92. 

(tr) Filkinyton Y. Stanhopf 1 Sid. 
314. 

{x) Dunn y. Oreen, 3 P. Wms. 9 ; 
ChaUoner y. JfurhaU, 2 Yes. jon. 
624 ; Bx parte School Bd, for Zon- 
don, In re Sari, 41 Ch. Diy. 647. 

(y) FhilipsY, Brydgee, 3 Yes. jiin. 
120; Radford y. Wilton, 3 Atk. 
616. 



^8 THE LAW OF COPYHOLDS. 

sections of the Act (a). By sect. 60 it is provided, that all 
the previous clauses of the Act, so far as circuinstaiioes 
and the difference of tenure Mrill admit, are to apply to 
lands held by copy of court roll, ^'except that a disposition 
of any such lands under this Act by a tenant in tail 
thereof, whose estate shall be an estate at law, shall be 
made by surrender, and except that a disposition of any 
lands under this Act by a tenant in tail thereof, whose 
estate shall be merely an estate in equity, may be made 
either by surrender or by a deed." The surrender or deed 
has, however, to be enrolled upon the court rolls of the 
manor witHn six months. 

The consent of the protector of the settlement, if given 
by deed, is to be produced and enrolled in the same way, 
together with an endorsement showing that the deed was 
produced within the six months. If not given by deed, 
the protector's consent is to be stated in the memorandum 
of surrender and enrolled therewith, the protector signing 
such memorandum before enrolment. If the surrender is 
made in court, an entry of the surrender containing a 
statement that the consent has been given, is to be made 
upon the court roll (a). 

. With reference to a disentailing deed affecting an equit- 
able entail of copyholds, it is provided that the equitable 
tenant in tail shall have full power to dispose by deed of 
the lands as he could do if they were of freehold tenure, 
and that the deed shall be entered on the court roll ; and 
for the purposes of such entry it has been held sufficient 
that the contents of the deed should be proved by affi- 
davit (i). And if there shall be a protector to consent to 

{z) « EstateB-tail " as used in veried where the issne are barred, 
the Act, in addition to its nsual but persons claiming estates by- 
meaning, includes a base-fee into way of remainder or otherwise are 
which an estate tail shall have been not barred : sect. 1 . 
converted: ''Base-fee "means ex- (a) Sects. 51, 52. 
.olusiTelj that estate in fee simple {b) Sect. 63; Crosby y. ForteiOHef 
into which an estate tail is con- 5 Bowl. 273. 



NATURE OF ESTATES tN COPYHOLDS. 29 

the dispoBition, and such protector shall give his consent 
by a distinot deed, the consent shall be void unless the 
deed of oonseht shall be executed on or before the day on 
whicli the deed of disposition is made. Such deed of con- 
sent is to l)e entered on the court roUs, and it is imperative 
on the lord, steward, or deputy (when required so to do) 
to enter such deed or deeds, ** and he shall endorse on each 
deed so entered a memorandum signed by him, testifying 
the entry of the same on the courtrolls" (c). By the same 
section it is provided, that every deed disposing of a copy* 
hold by an equitable tenant in tail shall be void against 
any person claiming the land for valuable consideration 
under any subsequent assurance entered on the court rolls, 
unless the deed of disposition by the equitable tenant in 
tail is entered on the court rolls of the manor before the 
entry of the suhsequent assurance. In an application for 
a mandamus to the steward of a manor to enrol a deed of 
disposition under this section, it is not necessary to annex 
a copy of the deed itself to the affidavit, if the contents are 
sufficiently stated in the affidavit (d) ; and it has been held 
that this section applies to equitable estates tail in lands 
which are held by copy of court-roll, and not to customary 
freeholds passing by deed and admittance. Hence it 
would appear that an estate tail in customary freeholds 
must he barred in the same way as in ordinary freeholds, 
and that whether the estate tail is legal or equitable, there 
wOl be no forfeiture for including the lands in the deed of 
disposition (^). 

By sect. 54 of the Act it is provided, that in no case, 
where a disposition of a copyhold by a tenant in tail shall 
be effected by surrender or deed, shall the surrender, or 
the memorandum, or a copy thereof, or the deed of dispo* 
sition, or the deed (if any) by which the protector shall 
consent to the disposition,, require enrolment, otherwise 

{c) Seot. 63. • (e) ^, v. IngleUm Manor [Lordk 

(d) Cro9hy y. ForUscue^ 5 Dowl. of), 8 Dowl. 693. 
273. 



80 THE LAW OF COPYHOLDS, 

than bj entry on the oonrt-rollB. In order that a disen- 
tailing asBuianoe may operate upon copyhold lands it must 
be entered on the eourt-roUs within six calendar months 
after it has been executed, by analogy to the time within 
which it would have to be enrolled in the Central Office of 
the Supreme Court in order to afiPect freeholds ; and if it 
is not entered within that period it will be void (/). An 
indorsement on the deed by the steward of a manor at his 
private residence to the effect that the deed was produced 
before him at his residence is not a sufficient enrolment 
within the meaning of the statute (g). 

The following are the principal provisions of the Act 
which by sect. 50 are made applicable to copyholds. 

Every tenant in tail may dispose of the land in fee or 
for a less estate, or against all persons claiming under the 
entail (h) ; and where an estate tail has been converted 
into a base fee, the person who would otherwise have been 
tenant in tail may dispose of the land as against all persons 
claiming estates to take effect after the base fee, so as to 
enlarge the base fee into an absolute fee (e). 

Limited dispositions by tenants in tail, as by way of 
mortgage or the like, are a bar in equity as well as at law, 
notwithstanding any intention of the parties to the con- 
trary; and it is provided, that if the estate created by 
such disposition shall be only an estate pur autre vie or for 
years, or only an interest, charge, lien, or incumbrance, 
" then such disposition shall in equity be a bar only so far 
as may be necessary to give full effect to the mortgage, or 
to such other limited purpose, or to such interest, charge, 
lien, or incumbrance, notwithstanding any intention to the 
contrary may be expressed or implied in the deed by which 
the disposition may be effected "(/). 

(/)5Wiy«varf v.i^fer, 30 Beav. (p) Boyd v. iVtfirfe, U W. B. 

1 ; Gibbons v. Snapo^ 1 De G. J. & 1009. 
S. 621 ; Grein v. Fatermm, 32 Oh. (A) Sect. 16. 

I>iv- 95. (i) Sect. 19. 

U) Sect. 21. 



NATURE OF ESTATES IN COPYHOLDS. 31 

Wlieie the tenant in tail is a married woman, the oon- 
cnirence of her husband and her separate acknowledgment 
of the deed are necessary in every such disposition, if she 
'was married before the Ist of January, 1883, and her title 
to the property accrued also before that date (k). 

The protector (whose office and powers are described in 
the Act, sect. 22 to sect. 37) is in general the owner of the 
first estate tinder a settlement, for life or for years deter- 
minable upon a life, prior to the estate tail, excluding 
tenants in dower and bare trustees. Without his consent 
the tenant in tail can create or dispose of no higher estate 
than a base fee (/). A married woman who is protector 
can consent as a feme sok (m). 

Before the passing of the Act an estate tail could not be 
barred without the consent of the person (if any) who was 
entitled to the first estate of a freehold nature under the 
settlement, prior to the estate tail. Such prior estates were 
frequently acquired by strangers to the settlement by way 
of purchase or mortgage, sometimes as a mere speculation 
for the purpose of obtaining money for a consent to the 
barring of the entail. Now, by sect. 22 of the Act, the 
Qriginsd owner of the prior estate continues to be the 
protector, although the estate may have been charged or 
incombered by the owner or settlor or otherwise, and 
although the whole of the rents and profits are exhausted 
or required for meeting the incumbrances, and although 
Ihe estate may haye been absolutely disposed of by the 
owner, or in consequence of his bankruptcy, or by any 
olher act or default of the owner. The protector's power 
of consent is not a trust as regards the ulterior estates {n) ; 
and, although his absolute discretion must remain unim* 
pededy the tenant in tail may purchase the consent (o). 
Any agreement by which the protector may undertake to 
withhold his consent is void, and his giving consent subse- 

{k) 3 & 4 Will. IV. 0. 74, 8. 40 ; (m) Sect. 45. 

i6 k 46 Yicfc. o. 16, 08. 2, 5. (n) Sect. 36. 

(/) Sect. 34. \o) Sect. 37. 



32 



THE LAW OF COPYHOLDS. 



Estates for 
life in oopj- 
holds of in- 
heritance. 



queutlj to Buok an agreement will not be regarded as a 
breach of a contract or trust (p). 

The period of enrolment for all the deeds required to be 
enrolled by the Act is six months from the date of execu- 
tion : and the enrolment, when made, relates back in each 
ease to the date of execution (q). 

The High Court is not prohibited by the terms of the 
Fines and Recoveries Act from exercising its ordinary 
jurisdiction to rectify, on the ground of mistake, a deed of 
resettlement which has been enrolled as a disentailing 
assurance under the Act (r). 

'Estates for life in copyholds of inheritance are so dif- 
ferent from the copyholds for lives to be hereafter de- 
scribed, that it will be convenient to treat of these different 
kinds of copyhold life-estates separately and without refer- 
ence to each other. 
How created. Of life-estates in copyholds of inheritance some are 
created by the act of the party, and some by force of the 
Custom of the manor. Of the first sort some are deter- 
minable by death, some by collateral means ; by death, as 
estates lasting during the life of the lord, the tenant, or a 
stranger (in a case of volimtary grant by the lord), or 
lasting during the life of the surrenderor, the surrenderee, 
or a stranger (in a case of conveyance by a copyholder) ; 
by collateral means, as estates granted to a widow or 
widower imtil marriage, to an office-holder so long as he 
shall perform the duty of his office, or the like. In the 
latter cases the tenants will have estates for life, though 
determinable on certain events, because estates of this kind 
may be limited either by the actual duration of a life or 
by any uncertain period, which cannot last longer than a 
life, and which does not depend on the will of the person 
next in succession. Of life-estates created by the custom 
of the manor the most usual examples are the customary 



{p) Sect. 36. 
Iq) Sects. 41, 74. 



(r) JffaU'Dare v. EaU-JDare, 81 
Ch. Div. 261. 



NATURE OF ESTATES IN COPYHOLDS. 33 

estates of the -widows and widowers of oopyhold tenants, 
who generally hold a portion of the tenement as their 
customary "freebenoh" until death or a second mar- 
riage («). 

When a man holds during the life of another person, he Estates p«r 
is called the tenant pur autre vie and the other the cestui^ ^^^^^ *^' 
que-vie. If the grant should be to one for the lives of 
several, the estate is in efiFect to continue during the life of 
the last survivor of the cestuuque-mes : but it may be given 
for {he joint lives of several, and in that case the tenant will 
have no more than an estate for the life of the eeatui-que^ 
w who shall die first. When the gift is to two persons 
for their own lives, it is understood to be a joint-tenanoy 
extending to the life of the survivor, but each will hold 
for his own life only if the joint-tenanoy ehould by any 
means be severed. 

When lands in ancient times were given to one man for Oocnpanoy. 
the life of another, who happened to survive the tenant 
pur autre f?t>, the estate belonged to the first person who 
niight enter as an '^ occupant " ; and though it was always 
held that in copyholds there was no " general occupancy," 
jet in such a case the lord was allowed to hold the land 
upon a principle somewhat similar to that of general 
occupancy in freeholds, before that kind of title was 
abolished {t). And in a modem case (u) a custom was 
held good, which extended the principle of occupancy to 
copyholds by giving the estate to a cestui-que-viey if the 
grantee for Hves died intestate. But since the Wills 
Act, 1837, the interest of the tenant for the life of 
another person, who survives, will in every case pass to the 
exeoutors or administrators of the original tenant, unless 
he has alienated it in his lifetime (x). 

But if the copyhold had been given to one and his heirs Special ooou- 

panoj. 

(«) Bee post, 0. ti. [u] Doe d. Nepean y. Ooddard, 1 

(0 Zf^h d. Forte ▼. Forw^ 7 B. & C. 522. 
Eist, 186. {») Seots. 3, 6. See Appendix, 

po9t, 

E. D 



34 



THE LAW OF COPYHOLDS. 



Terms of 
years. 



Leases under 
custom. 



for the life of another, or if the tenant had aliened to 
another person and his heirs during the life of the cestui^ 
que-vky the heirs were always permitted to take by special 
occupancy, if there had been no alienation inter vivos or by 
means of a devise (y) ; and they were said to inherit a 
^^descendible freehold" or a descendible life-estate. A 
similar limitation to a man and the heirs of his body for 
the life of another person is called a quasi-entail, and the 
special occupant is said to be quasi-tenant-in-tail of the 
descendible Ufe-estate. But there is no estate-tail in the 
proper sense of the word : and the estate can be alienated 
by the tenant without any disentailing assurance. In the 
same way the executors and administrators of the tenant 
pur autre vie may be nominated to take as special occu- 
pants ; and when the heirs, executors, and administrators 
are all named, it is held that the heir should be preferred 
to the personal representative. 

The Wills Act, 1837, extends to all estates pur autre 
viey whether there are any special occupants or not, and 
whether the same are of- freehold, customary freehold, 
tenant-right, customary or copyhold or any other tenure (»). 

Terms of years in copyholds of inheritance are to be 
distinguished from copyholds for years, which cannot be 
granted out for any greater estate than the term warranted 
by the custom, and which have several peculiar qualities to 
be hereafter mentioned. The lord may demise a copyhold 
in hand' for a term instead of making a voluntary grant : 
and '* tidrms of years in copyholds may be created by 
surrender, and these are true customary estates : but the 
practice is not usual" (a). 

By the general law, every copyholder may lease his 
tenement for one year, and by special custom for a longer 
period, without the Hcenoe of titie lord {b) . In some manors, 



(y) Doe d. lAmpriere r. Martin^ 
2W. BL1U8. 
(«) BM. 3. See Appendix, ^»M^. 
(a) Bnrt. Comp. s. 1314^ n. See 



JBath {Sari of) y. AbMy, 1 Bnir. 206. 
(^) Melwich y. Lutoff 4 Bep. 26 a ; 
Jackman y. Kodi^Bdm^ Gro. Blis. 
851. 



KATTJRE OF ESTATES IN COPYHOLDS. 36 

for example, the oostomaiy tenants may demise without 
licence for nine, twelve, or twenty-one years, aooording to 
the usage in eaoh case, or for several saooessiYe periods of 
three, seven, or nine years, or the like; elsewhere the 
tenants may demise without Uoenoe for a life and twelve 
years after, or for long terms, or even for a life and f oriy 
years after (c). 

If a copyholder leases for more than one year without 
licence, or without a special custom authorising the lease, 
he renders his estate liable to forfeiture {d), A lease for 
one year, and so on from year to year, or a lease which 
amounts in law to a lease for two years at least, if not 
warranted by the custom, wiU be a cause of forfeiture (e) ; 
hut a lease for a year with a covenant for renewal at the 
win of the lessor will not operate as a forfeiture (/). A 
custom for copyholders of inheritance to make leases for 
years without licence, but on condition of the term ceasing 
on the lessor's death, has been held a good custom (^), but 
all such special customs must be clearly proved (A). Not- 
withstanding the forfeiture created by a lease for years 
granted without the licence of the lord, or without a custom 
to support it, the lease will yet be good as -between the 
parties to it, and the lessee will have a good title as against 
everyone but the lord (t) ; and as against the lord himself 
the lease is only a ground of forfeiture which he may 
waive (*). 

By the lord's licence the copyholder may lease for any Leaaes under 
nnmber of years, and the lessee will have a common-law ^^°®* 
estate and not a customary interest in the land. The lessee 
may assign or imderlet without any fresh licence, the lord's 

{e) Eitch. Juriad. 201; Com. {ff) Turner y.Bodffei.'Rutt, lOl. 

Kg. Copyh. (K. 3). (A) See Kmey v. Siehardson, Oro. 

(i) Jaeknum t. JXoddetdeny Gro. Eliz. 728. 

EKi. 851. (») Doe d. Tresidder v. Treeidder, 

{i) Zutlnl y. Weston^ do. Jao. 1 Q. B. 417. 

lOe. W JDoe d. Sobimon y. £ou^/Md, 

(/) lady UwtagwU Caee, Oro. 6 Q. B. 492. 
^ae. 301. 

d2 



56 THE LAW OF COPYHOLDS. 

interest in the land being discharged, and the lord being 
considered as haying placed himself in a position of a land- 
lord to the lessee (/). Where a licence to demise has been 
granted the lease must not exceed the terms of the licence 
or it will be void (m) ; but a demise for a less term or 
interest than is authorised by the Uoence will be good (n) ; 
and a subsequent forfeiture by the copyhold tenant of his 
estate will not affect the lessee's interest (<?) . A copyholder 
for life cannot lease for any period exceeding his own life, 
unless by having a right of renewal or a power of nomi- 
nating his successor he has an estate equivalent to a copy- 
hold of inheritance (p). The lord cannot grant a licence 
on condition, for by the Ucence the lord gives nothing, but 
only dispenses with the forfeiture, all the estate or interest 
imder the lease passing from the copyholder (q). 
Power of lord The lord's licence will in general last only during the 
Uoence. continuance of his own estate, so that if the lord is a tenant 

for life the licence given by him will come to an end at 
his death (r) ; unless the Uoence has been given imder a 
power of dealing with the fee, or imder the provisions of the 
Settled Land Act, 1882, which permit a tenant for life of a 
settled manor to grant to a tenant of copyhold or customary 
land a licence to make a lease of the land, for ninety-nine 
years in the caseof a building lease, for sixty years in the case 
of a mining lease, or for twenty-one years in the case of any 
other lease ; or with the sanction of a judge of the Chancery 
Division of the High Court for a longer period than ninety- 
nine years, or in perpetuity in the case of a building lease, 
on proof either that it is the custom to lease for such longer 
period or in perpetuity, or that it is difficult to grant 
building leases except for such longer period, or except in 

(I) Co. Copjh. B. 61 ; Johnson r. {o) Clarke v. Arden, 16 C. B. 227. 

^martf 1 Bo. Abr. 608, pi. 14 ; {p) Haddon y. Arrowemith, Geo. 

Turner y. ffod^ea, Hatt. 101. Eliz. 461, 462. 

(m) JackionY. Nealf do. Eliz. 396. {q) Ibid. For a foim of Uoence^ 

[n) JForUdge y. Bmhuryj Cro. see Appendix, jpo*^. 

Jao. 436. (r) h«y y, Evam^ 2 Brownl. 40. 



KATTJRB OF ESTATES IN COPYHOLDS. 87 

perpetuity («). The lioence may fix the annual value 
whereon fines, fees, or other customary payments are to 
\>e assessed, or may fix the amount of those fines, fees, or 
payments, but it must be entered on the court roUs of the 
manor. A certificate in writing by the steward that the 
licence has been entered on the rolls is to be sufficient 
eyidence of the entry (t). 

The chattel interests, other than terms of years, which Chattel 
may subsist in copyholds, are not of such importance as to than terms of 
require a detailed description. A copyhold niay be held y®*"- 
by a tenant at wiU, as where a mortgagor is left in posses- 
sion by a mortgagee who has been admitted upon a condi- 
tional surrender, or by a tenant at sufEerance, where one 
who came in by right stays in by wrong, after his estate 
in the tenement has come to an end; and copyholds 
having been rendered extendible for judgment debts by 
the Act 1 & 2 Vict. c. 110, may be delivered by the sheriff 
upon a writ of execution to a creditor holding by 5%2Y,* 
a kind of tenancy which is regarded in law as a chattel 
interest of uncertain duration. 

n. — Copyholds for Lives. 

In many parts of England, and especially in manors Katare of 
belonging to ecclesiastical corporations in the Western ^ ** 
Coimties, the copyholds are granted for lives and for no 
greater estate. In some parts it is not unusual to find 
copyholds of inheritance and copyholds for lives in the 
same manor. The copyholds for lives are not usually 
expressed to be held at the will of the lord, but are custo- 
mary freeholds held according to the custom of the manor. 
It has been sometimes suggested, that they are probably 
copyholds in the strict sense of the term, the reference to 
the lord's will being omitted, because these ecclesiastical 
manors were usually leased to a lord-farmer, and so there 

W 45 & 46 Vict. c. 38, 8. 14 (1), (/) 46 & 46 Vict. o. 38, 8. 14, 

and see flB. 6—10, and 53 & 54 Viot. sabs. 2, 3. 
c 69, 88. 7-9. 



tenure. 



38 THE LAW OF COPYHOLDS. 

might have been Bome ambiguity in a statement that the 
copyholds were held at the will of the lord. But there 
seems to be not much need of this hypothesis, and in some 
of these manors copyholders at the will of the lord and 
oustomary freeholders for lives are found existing together. 
Deacriptionol The tenure usual in the West of England has been 
thus described by a competent authority {u) . " The land is 
granted to two or three persons for their lives successively, 
the widow of the person dying in possession being entitled 
to the whole tenement for her widowhood. The lives are 
the beneficial owners unless the contrary is expressed : and, 
uses being imknown, there can be no beneficial ownership 
apart from the lives, except by virtue of a trust which may 
or may not appear upon the court rolls. The copyholder 
has a power of destroying the widow's freebench by sur- 
render, ending his own estate. In some manors the grant 
is made indiscriminately, either to a man for his own life, 
or for the lives of others." 

The tenure of the copyholds in the ecclesiastical manors 
in the See of Worcester has been thus described by persons 
acquainted with the local tenures. 

" The tenure, with few exceptions, is for lives by grants 
by copy of court-roll — ^under the See of Worcester, by 
grant for one life in possession, and by grant for three 
lives in reversion ; and under the Dean and Chapter by 
grant for two lives in possession, and by grant for two in 
reversion ; in the former case the possession-life is admitted, 
and the lands are stated to be in his actual possession, 
although such very seldom happens, and in the latter case 
the eldest possession-life is in like manner admitted. A 
trust is declared for the beneficial owner, his executors 
administrators and assigns, so that on intestacy the lands 
i descend to the personal and not to the real representatives 
,' of the deceased. If the beneficial owner is the tenant in 
possession on the rolls, his widow is entitled to freebench 

(m) B. p. Comn. 1 Bep, App. 417. 



NATUKB OF ESTATISS IN 00PYH0LD6. 39 

daring her widowhood. On the death of the poBsession- 
lif e a heriot hecomeB payable to the lord, and on the death 
of the seoond possession-life the value of half a heriot is 
payable to the Dean and Chapter. From time immemorial 
renelrals have taken place on the death of any of the Hyes, 
on payment of oertain fines ; in the manors belonging to 
the See on payment of three-fourths of a year's improved 
rent, and in the manors belonging to the Dean and Chapter 
on payment of half a year's improved rent. The lords, 
upon the deaths of aU the Uves in possession and reversion, 
daim the lands as their own, and if all the reversionary 
Uves are dead, there being what is teohnioally oaUed an 
open reversion, the lords olaim the right of filling up the 
reversion with Uves of their own nomination." 

In the ease of Watkim v. Lea (rr), where substantiaUy 
the same description is given, the lands are said to be 
granted for two lives in possession and two in reversion 
upon trust for the persons beneficially entitled, and to be 
deviseable by such persons, and not to be descendible in 
case of their intestacy to their heirs, but to be distributable 
as personal estate: '^and on the death of any life and 
surrender of the other Uves then in being, and on payment 
of the customary fines, the lords have made new grants by 
copy of court roU for two lives in succession and two in 
reversion for the benefit of the persons beneficially in- 
terested." Under the special circumstances of that case, 
the copyholds in question passed under a residuary bequest 
of personalty, and not under a general devise of copyholds 
contained in the same will. 

In other places the copyholds are granted for Uves sue- YarietieB of 
cessively as to three persons for the term of their Uves, ^ ^^' 
and the life of the longest liver of them, to hold suooes- 
aively as they are named, and not otherwise ; the person 
first named in the grant enjoying the tenement to him 
alone during his life, and so the second and third, and the 

(x) 6 Vee. jun. 633. 



40 THB LAW OF COPYHOLDS. 

lord being entitled to a heriot of every such person succes- 
sively dying seised (y). And elsewhere the grants are 
made to persons for their lives jointly. Sometimes, as in 
the manor of Dawlish in Devonshire (2), the grant is to 
two joint lives in possession and to two joint lives in re- 
version. And there are many other varieties of the cus- 
tomary tenure, as a grant for one life only, or for one 
life in possession and other lives in expectancy, and the 
like. 

Most of the tenant-right estates of the Northern Counties 
are customary freeholds of inheritance : but some are held 
ij .^ l«.u« ta U™, being in ^»t gr».l.d for 
the joint lives of the tenant and of the particular lord 
who admits him to the tenement (a). But in these cases 
there is generally a tenant-right of renewal in the heirs of 
the tenant. 
Customs of Where copyholds are granted for the lives of several 

by firrtt^OT. persons, the first-named life, or "the taker," is generally, 
though not invariably, the beneficial owner. By the 
special customs of a great number of manors the first taker 
has a right to surrender his estate, and thereby to bar the 
estates of all the rest {b). And it is frequently part of the 
custom, that the life in possession, or the first of the lives 
in possession, shall have a veto upon any fresh creation of 
tenancies in remainder without his assent or " goodwill," 
for the manifesting of which there is frequently a cus- 
tomary ceremony; the object being to preserve to the 
beneficial owner the power of surrendering to the lord, and 
taking a new estate for his own benefit. Where the cus- 
tom exists, it will be construed strictly, and the first life 
will not be allowed to bar the remainders, except in the 
precise manner authorised by the custom. Formerly it 
seems to have been the view that such customs were ex- 

(y) Smartle y. JPenhallow, 6 Mod. (a) Somenet {Duke of) y. France^ 

63. 1 Stra. 654. 

(z) See Watk. Gopyh. ii. App. ifi) See Zintan v. Tdlmadge, Pol- 

486. lezf. 661. 



NATURE OF ESTATES IN COPYHOLDS. 41 

ceptionaL Thus, in Rtmdh v. Rtmdle (c), where a copyhold 
had heen granted to three persons for their lives sucoes- 
fiivelj, it was held that in the absence of evidence as to a 
custom enabling the first taker to dispose of the whole estate, 
and as to the purchase-money having been paid by such 
first taker, the copyhold estate was to be held in succession, 
and was not to go to the executor of the first taker ; but 
the modem view seems to regard customs of barring lives 
as being usual. In Right d. The Dean and Chapter of 
Wells V. Bawden (rf), where there had been a grant by copy 
of court-roll of a reversion to one who had previously a 
life estate in the premises, to hold to him for the lives of 
two persons during the life of the longer liver, according 
to the custom of the manor, under reservation of rent and 
a heriot, it was held that the grantee alone took the legal 
estate in the reversion, and not the cestui-qtie-meSf as there 
was no custom enabling them to take, although they were 
stated to be admitted tenants in reversion ; and in Jeans 
V. Cooke (a). Sir John Romilly doubted whether a custom 
that the cestui-que-fnes should successively be entitled to 
admission, would be good where there had been a devise 
by the person who had been admitted tenant to hold to 
him for the lives of his three sons and the life of the 
longest liver of them successively. 

According to the rule, that he who can grant the greater What estatos 
estate can also grant the less, when copyholds are demise- ^^t^. 
able by the custom for any number of lives, they may be 
demised for any estate equivalent or inferior to the amount 
of interest allowed by the custom (/), Thus, if the custom 
is that copyholds may be granted for three lives, an estate 
may be granted to three persons for the lives of two, or for 
one life, or any estate within the custom. So where the 
costom is to grant for life absolutely, the grant may be for 

(c) 2 Vem. 264. holds for liyes wiH he found in the 

{i) 3 East, 260. Appendix, poit. 

(#) 24 BeaT. 513. A fonn of (/) 1 Bo. Ahr. 511. 
luzender and re-grant of copy- 



42 THE LAW OF COPYHOLDS. 

a qualified life estate, as to a wom%n during her widow- 
hood. And bj a custom which allows a grant to three 
successively, the grant may be to one for three lives or for 
the life of himself and two others successively (^) ; and if 
a grant for life is authorised, a demise for years may be 
made under the custom (^). And on the same principle 
a copyhold for lives may be given for certain lives to a 
man and his heirs, or his executors and administrators, as 
special occupants. 
Eesulting The doctrine of resulting trusts is of particular import- 

ance in copyholds for lives. The general rule is, that 
there will be a resulting trust to the person who finds the 
money for the admittance-fine, whether the copyhold is 
taken in the names of the purchaser and others jointly, or 
in the names of others without that of the purchaser, 
whether in one name or several, and whether the lives take 
jointly or successively, unless it should be a case of ad- 
vancement (i). If it appears that the fine is paid by one 
of the lives named in the copy, he will be the proprietor, 
whether by custom the first taker has power to bar the 
other lives or not, and the rest will be trustees for him. 
And if the first taker under such a custom were to bar the 
estates of those who have paid the fine, he would thereby 
constitute himself a trustee for them of whatever estate he 
acquired or retained in the tenement. A custom that the 
lives named in succession should have the beneficial owner- 
ship, though the first taker paid the fine, would be void ; 
but where the money is contributed equally, there is no 
reason why the beneficial estate should not go in the order 
named in the copy (A). 

Where any such custom as to the lives named in suc- 

(^) Smartle v. PmhaUow, \ Salk. (i) Dyer t. Dyer^ 2 Oox, Oh. 

188. Gas. 92. 

(h) (t^awnor y. Totk^ 4 Bep. {k) L&wis v. Lane, 2 Myl. & K. 

23 a ; Dotons y. Hopkme, Gro. Eli2. 4i9| OYcrruling Edwarde y. JPiiel, 

323 ; and Com. Dig. Copyh. (C. 10), 8 Kadd. 237. 
where the cases are ooUeoted. 



NATURE OF ESTATES IN COPYHOLDS. 43 

oessioii taking benefioiallj exists^ it affects only the legal 
estate or interest in the copyhold (Z). 

In some manors the copyholders for lives haye a tenant- Bight of 
right of renewal. But to support such a custom, the '^^^ ' 
tenant must prove a constant usage of renewal upon pay- 
ment of a fixed fine. It will not be sufficient to allege it 
tc be on payment of a reasonable fine, on account of the 
difficulty of ascertaining the quantum of such a fine, or to 
adduce instances that tenants of copyholds have been ad- 
mitted at various times on payment of a fine which had 
been ascertained and agreed on between the lord and the 
tenant. *' If a custom be not found to renew on pay- 
ment of a certain fine, the lord may insist on his own 
terms : and the only proof that can be given of such a 
custom is the fact of renewals having taken place according 
to some oertain standard, that is, upon a fine certain " {m). 

In some manors the tenants have a right of appointing Nomination 
their successors which resembles a tenant-right of renewal: ^ """^^^^or. 
as by the custom of the manor of Yetminster Prima in 
Dorsetshire, where the copyholds are granted for one life 
cnly, and ^^ any tenant may assign, nominate, or surrender 
his tenement to his child or any other person " (n). 

Tenants with this power of nomination or with a tenant- 
right of renewal are called " quasi-copyholders in fee," and 
are allowed many of the privileges which usually belong to 
copyholds of inheritance. 

Elsewhere the tenants have by various local customs Fteferentlal 
preferential claims to be admitted to neighbouring copy- renewal, 
holds on any terms which a stranger will offer, and in 

(/] Smith Y. Baker, 1 Atk. 385. (n) See AlUn y. JBewttff, 7 Oh. 

(*•) Oraftm {Jhik$ of) y. fforton, IHy. 463, and Appendix, post, 

2Bn>.P.C.2S4; JFharionT. J^, a« to onBtoms of manors of Yet- 

Anst. 659 ; Abergavenny (Lord) y. minster, Yetminster Prima, and 

Tkowm, Anst. 6«S, n. ; Walker y. Yetminster Seonnda ; and Ford y. 

Ahingden (Earl^ 10 L. J. N. S. Eothina, Cro. Jao. 368, as to oos- 



Ch. 289. torn of manor of Beaminster in 

Dorset. 



44 



THE LAW OF COPYHOLDS. 



Trostee 
renewing. 



Bome manors the heir or nearest blood relation of a de- 
ceased tenant has a similar option in the nature of a 
tenant-right. 

Where there is only a habit of renewal, without a 
tenant-right, copyholds will come within the general rule 
of equity, that a trustee renewing for his own benefit will 
hold the land for his cestui que trusty and a life-tenant, or 
other person with a limited interest in a renewable copy- 
hold, will be considered a trustee for those in remainder. 
It seems, however, that a trustee or tenant for life might 
purchase the freehold interest, and so practically destroy 
all chance of future renewals, and hold it for his own 
benefit, unless those in remainder could show that he took 
an advantage from his position as trustee, or as having an 
interest in the settlement, which a mere stranger would 
not have enjoyed ; but where there are under-tenants who 
have a covenant that their interest shall be renewed toties 
quotiea with every renewal of their lessor's interest, a pur- 
chase of the reversion or freehold by the latter will create 
a trust in favour of the under-tenants (o). 



Nature of 
estates. 



m. — Copyholds for Tbars. 

Besides the estates for years already described, which 
may subsist in copyholds of inheritance or copyholds for 
lives, there are in several districts copyholds for years, 
which are granted for a term renewable {p) or not renew- 
able according to the usage, but for no greater estate. 
These are found among customary freeholds, as well as in 
copyholds in the restricted sense of the term. 

Of this kind appear to have been the Conventionaiy 
Estates in manors belonging to the Duchy of Cornwall 
(now mostly enfranchised), which were granted for suc- 



(o) Lytr Y. Dyer^ 2 Coz, Oh. Ca. 



92. 



{p) See FageU Ctue, Cro. Jac. 
671. 



KATUJtB OP ESTATES IN COPYHOLDS. 45 

oessiFe short terms of years with a tenant-right of renewal 
descending to the heirs (q). And elsewhere there are 
similar estates without a right of renewal. 

The same roles, as to resulting trosts and renewals bj 
persons haying a limited interest, applj to copyholds for 
years as are mentioned above as applicable to copyholds 
for liyes. 

(^) See Bowe y. BrmUm^ 8 B. ft 0. 737> 738. 



i 



46 



THE LAW OF COPYHOLDS, 



CHAPTER m. 



OONVEYAKCES OP COPYHOLDS. 



2Code6of 
conyeyenoe. 



In this ohapter it is intended to discuss the Yarions methods 
by which estates in copyholds are created and conYeyed. 
The most important of these modes of assurance are Yolim- 
tary grants, surrender and admittance, and devise of copy- 
holds : there are also certain statutory forms of conveyance 
appropriate to particular cases, and certain occasions on 
which interests in copyholds may be transferred by an 
ordinary deed. All these will now be briefly discussed in 
the order in which they have been mentioned above. 



Volnntaiy 
grant. 



I. — ^Voluntary Grant. 

Every lord of a manor for the time being may re-'grant 
copyholds which have come into hand, whether by escheat, 
forfeiture, or any other manner of determination of a 
former grant, or by his acquiring the copyhold, or by the 
tenant acquiring the lordship. And the tenement may 
remain in hand for any length of time and yet be granted 
as copyhold again, provided that no common-law estate 
exceeding a tenancy at will has been created in the land 
by an owner seised in fee (a). The act of a limited owner 
can only suspend the power during the continuance of his 
estate. Thus, if the tenements which have come into hand 
are granted to tenants from year to year by the owner in 
fee of the manor, the demiseable quality of the tenements 



(a) French's C<m^ 4 Bep. 31 a. 



cx>inrETAircEs op ooftholds. 47 

win be gone, and the dutom of le-gnntbig Uusm to be 
held by copy of court-roll will be deetrojed, and they iriU 
oease to be parcel of the demesaes; but if they are granted 
for any oommon-law estate exoeeding a tenancy at will by 
a brd who has not the fee simple of the manor, nock a 
grant will not pennanently sever them from the manor as 
against sneoeeding lords, and on the determination of the 
ertate which has been created the right of re-granting the 
tenements as copyholds will be available to the lord for the 
time being (6). 

The quantity of the lord's interest, so long as it is law- Qaani^oi 
fol and in possession, is not material Thus, Lord Coke ^rben making 
says : " In voluntary grants made by the lord himself the ▼oii>^»^ 
law neither respecteth the quality of his person nor the 
quantity of his estate, for be he an infant, and so through 
the tenderness of his age insufficient to dispose of any land 
at the common law, or non compos mentis^ an idiot, • . • • 
notwithstanding these infirmities and disabiUties, yet he is 
capable enough to make a voluntary grant by copy; • • . • 
and the quantity of the lord's estate is no more respected 
than the quality of his person, for if his interest be lawful, 
be his estate never so great or never so little, it is not 
material ; for be it in fee or be it in tail or dower, or as 
tenant by curtesy, for life, or for years, as guardian, or as 
tenant by statute, or as tenant by elegit, or at will, the 
least of these estates is a sufficient warrant to the lord to 
grant any copyhold escheated unto him for as long time as 
the custom doth allow, the ancient rents and services being 
imly reserved " (c). And in one case a person who has no 
legal interest can make such grants, as where a testator 
directs his executors to grant out copyholds for the pay- 
ment of his debts ((2). According to general principles 
the grant of any person having a temporary or limited 

H) JBx parU Zord ffmUtf, Ms The (e) Co. Copyh. a. 84; Clarke v. 

Lmdm # S. W. Mail. Co., 29 Bmy. J^emifather, 4 Bep. 28 b. 
311. (d) Co. Litt. 58 b. 



'48 



THE LAW OF COPYHOLDS. 



Quality of 
lord's estate 
material. 



Where lords 
are joint 
tenants or 
tenants in 
oommon. 



interest would determine with the determinat^n of that 
interest, but copyhold grants of a lord who is a limited 
owner remain valid and efiectual after his estate has 
ceased, for the reason that " a copyholder does not derive 
his estate out of the lord's estate only, for then the copy- 
holder's estate would cease when the lord's interest deter- 
mineth, but the life of the copyholder's estate is the custom 
of the manor; ai^d therefore whatsoever befalleth the lord's 
interest in his manor, be it determined by the course of 
time, by death, by forfeiture, or other means, yet if the 
lord were legitimm dominus pro tempore^ how small soever 
his estate was, that is enough " [e). But the custom must 
be strictly observed, and if the custom does not permit of 
parcelling or dividing the tenements which have come into 
hand, or of apportioning the rents, a grant by the lord 
not conforming with the custom in these respects will be 
void (/). 

But although the quantity of the lord's estate is imma- 
terial, regard must be had to the quality of his estate ; for 
" if the lord, or he, whosoever he be, that maketh a volun- 
tary grant by copy hath no lawful interest in the manor, 
but only a usurped title, his grant shall never bind the 
right owner," but will be void as against him when he has 
recovered the manor by action or entry (^7). 

The grant of one joint tenant of a manor will bind the 
other, but tenants in common must join in the grant, 
because they have separate estates (A). The steward or 
deputy, if properly authorised to do so, may make volun- 
tary grants in the name of the lord, and his authority will 
not be revoked by the subsequent mental incapacity of the 
lord. In Bktvitfs Case (t), it appeared that the lord of a 
manor, who had granted the office of steward to one for 
life, was afterwards found to be a lunatic, and that his 



{(f) Co. Copyli. s. 34. 
. (/)Co. Copyh. 8. 41; J)oe d. 
Itoff&r Y. Strickland, 2 Q. B. 792. 

iff) Ck). Copyh. 8. 84 ; Clarke v. 



Fennifather, 4 Bep. 23 b. 

(h) Co. Copyh. 8. 34 ; Co. litt. 
186 a, 188 b. . 

(•) Ley, 47. 



OONVBYANCES OF COPYHOLDS. 49 

estate had,been oommitted £b the care of oertam persons. 
It was held that these oommittees oould not make grants, as 
iliey had no estate in the manor, and that the lord, by his 
steward, might grant ; but in the special circumstances it 
was ordered that the steward should grant none without 
tile privity of the committees. 

By the Copyhold Act, 1841, s. 87, it is made lawful CopyholdAct, 
for every lord or steward, or persons aeting as such, to ^®*^' 
grant copyholds at any time or place, the lands being 
granted only for such estate as the grantor has authority 
to make. 

When duly made, the grant will bind the inheritance. Effect of 
efven if the estate is reversionary and does not take effect K'*"*- 
in possession during the estate of the person who made the 
grant, provided there is a custom in the manor enabling 
the lord to grant in reversion (k). 

Any person may take under a voluntary grant who is Who may 
capable of purchasing land at law ; but a husband could not taiy grant, 
grant a copyhold to his wife without the intervention of a 
trustee (/) ; nor can a lord, who is lessee of a manor, grant 
a copyhold to himself, " for a man cannot be a copyholder 
of a manor whereof he is lord " (w). 

With regard to the estate which the lord may grant. What estate 
the rule is, that where the lord may by the custom grant grated, 
in fee simple, he may grant for any less estate, though 
there never had been such a grant of the tenement 
formerly (n). As such copyhold grants derive their force 
and effect from the custom of the manor and not from the 
estate of the lord, they wiU have priority to any charges or 
incumbrances created by the lord, even though prior in 
date to the grant {o) ; and it has been held that the lands 

{k) Co. Copyli. 8. 34 ; Carew'a (m) ChrUtehurch, Oxford (Dean 

Case, Hoo. 147 ; Ooff t. Kay, Cro. and Ch.) v. Buckingham (Duke of), 

Mz. 661 ; GJlb. Ten. 204. 17 G. B. N. S. 391. 

[I) Co. Copjh. B. 35 ; FirebroM (n) Co. Litt. 52 b ; Oravenor v, 

d. Symst v. Pennant, 2 Wils. 254; Todd, 4 Bep. 23 a. 
bat see now 45 & 46 Viet. c. 75, ip) Sonde t. Bempsion, 2 Leon. 

IB. 1 (1), 2, 6. 109. 

B. B 



50 THE LAW OF COPYHOLDS. 

included in suoh grants will be held disoharged of dower 
of the lord's widow (jt>). 
Admittance Upon a Voluntary grant no particular form of admit- 
grante^ "^ tanoe is necessary, though a formal admittance is generally 
made in practice. It seems that no act of admission is 
necessary where, as in voluntary grants in remainder, no 
delivery of possession is practicable at the time of the 
grant, and that on the death of the particular tenant the 
tenant in remainder may enter without any further cere- 
mony, the grant giving him a perfect legal title without 
admittance (g). 

II. — SuRRENDEa AKD ADMITTANCE. 

Surrender and The tenancy of a copyhold cannot be transferred with- 
out the lord's assent, which may be refused when the pro- 
posed conveyance is improper in form or prejudicial to his 
interest. Copyholds of the ordinary kind are conveyed by 
surrender and admittance, or by some statutory assurance 
made with the lord's concurrence which is to the same 
effect. Customary freeholds are frequently alienable by 
deeds of grant or of bargain and sale, in some cases fol- 
lowed ^by a regular surrender and admittance, in others 
merely confirmed by the lord's licence indorsed ; and in a 
few instances the alienation is completed according to the 
local usage by a mere substitution of the names in the 
manor roll. But in no case can the tenancy be changed 
without the lord's consent (r), except where the copyhold 
has been severed from the ^Ianor by the conveyance of the 
freehold apart from the manor itself ; in this case the copy- 
holder is allowed to use the assurances proper to freeholds, 
because his land would otherwise be inalienable (s). The 
rules which apply to the ordinary surrender and admittance 

{p) Anon., 4 Bep. 24 a ; Co. (r) See Oliver y. Taylor, 1 Atk. 

Copyh. 8. 84. 474. 

(7) :Roe d. Cosh y. Zoveless, 2 B. («) Fhillips t. Ball, 6 0. B. N. S. 

& Aid. 453. 811. 



CONVEYANCES OF COPYHOLDS. 61 

are also applicable to the other forms of oustomaiy oon- 
Teyanoe mentioned above, so far as the differences of 
tenure will permit (f). 

The following is the usual form of surrender and admit- XJsiial foxm. 
tanoe. The copyholder surrenders his tenement to the 
loid, or steward, or person acting as such, or to some other 
person authorised to receive surrenders hy the special 
costom of the manor, as the bailiff, two tenants, or the 
lile {u)y and the surrender or deed of surrender is accepted 
and enrolled bj the steward : the admittance of the tenant 
may be made forthwith, or postponed for any period, 
xinless there is a special custom to compel the new tenant 
to come for admittance. The admission is enrolled when 
made, and even if it should only have been made by im- 
plication it is the duty of the steward to enter it upon the 
roll as part of the chain of title to the tenement. 

The lord is not compelled to accept a new tenant on improper 
prejudicial terms, and may therefore refuse to receive a ^*^™"- 
surrender to the use of a corporation (x), or of a person who 
is not to be impeached for waste, or a surrender declaring 
any trusts, unless there is a special custom that trusts 
may be expressed (y), or made to the use of a person to be 
appointed in the future by a deed or will, or made so as to 
pass a larger estate than the copyholder has power to 
convey (2), as where a copyholder for his own life sur- 
renders for the life of another person, or in any other way 
calculated improperly to deprive the lord of his fines and 
profits. He may insist, moreover, on the instrument being 
made in the proper form, and by the proper person, as by 
lus own steward when there is a custom that all surrenders 
shall be prepared by that officer for a reasonable fee : and 

(<) Doe d. Beat/ t. Jluntin^ton, 4 {x) Att^'Om, y. Zewin, 1 Ooop. 

£ftst» 271 ; 1)00 d. OarlitleY. Towns, 51, 54. 

2 B. ft Ad. 5S5 ; Doe d. Damon y. (y) Flack v. Downing Coll., Comb., 

P»ke, 4 A. & E. 816. 13 G. B. 945 ; Snook t. Mattoek, 5 

(v) See Turner v. Benny, 1 Mod. A. & E. 239. 

61 ; Co. litt. 59 a. (z) Co. Copyh. b. 34. 

e2 



62 THE LAW OF COPYHOLDS. 

that the proper words sliall be used, as " surrender," or 
" bargain sell aliene and convey," or the like, aooording 
to the local usage, and that the surrender and admittance 
shall be made with the usual symbols of giving and taking 
the seisin, as by delivery of a rod, straw, or the like : and 
he might have required the new tenant to do fealty in person, 
though this was unusual in practice {a) . He may insist upon 
the surrender containing the description of the tenement 
by which it is known in the court-rolls, and is not bound 
to accept a general surrender without a particular descrip- 
tion (6), even though it refers to the description in a for- 
merly enrolled surrender, nor to accept any surrender so 
framed as not to be useful in showing the title to the separate 
tenements upon the roll. And with regard to the admit- 
tance, it is a general rule that there must be a separate 
admittance for each tenement, whether the tenements were 
originally united or not, so as to keep the history of the 
titles distinct {c). But it will be sufficient if the sur- 
renders or admittances are contained in separate clauses 
of the same instrument. In some parts, however, and 
especially in Norfolk Suffolk and Sussex, the lands of 
different tenures are so intermiKed, that it is practically 
impossible to distinguish freeholds from copyholds, or 
lands in one manor from those in another; and under 
these circumstances it may be necessary to employ general 
surrenders and admittances. If the lord or steward accept 
a surrender which might be refused by the lord on account 
of its prejudicing his interest, the admittance must be 
made in accordance with the surrender, for the lord has 
no power to change or alter the estate to be transferred, 
and if he admits otherwise than according to the surrender, 
the surrender will control the admittance {d). 

(a) See 60 & 61 Viot. o. 73, 8. 2, (e) Beg. v. Eton Coll., 8 Q. B. 
as to admittance by attorney. 526 ; Traherne t. Gardner^ 6 E. & 

(b) Reg. T. Bishop's SCokd Manor B. 913. 

(Lord of), 8 Dowl. 608 ; Hay ward (d) Oo. Copyh. 8. 41. 

T. Baw, 6 H. & N. 308. 



CONVEYANCES OF COPYHOLDS. 53 

The essential part of a surrender appears to be the Bequidtes of 
giving np of the customary seisin to the lord, and where •'^^^'^^^ ^^' 
this is effectually done the form of relinquishment is not, 
as it seems, essential, unless the rights of a third person 
are injured. In an early case concerned with copyholds 
for lives, where the first taker had the power of barring 
the other lives by surrender, it was held that his joining 
with the lord in a fine did not operate as a surrender (e). 
But a surrender to the use of the lord may be made in 
any form, and it would therefore seem that a copyholder 
for life wishing the lord to make a new grant for another 
life or other lives might surrender by any words showing 
his intention to relinquish the tenement. A copyholder, 
however, would incur a forfeiture by making a conveyance 
by any deed applicable to a legal estate in freeholds to 
any person other than the lord, and such a deed as would 
not create a forfeiture, if made to a third party, could not 
operate as a surrender to the lord (/). An acceptance by 
the tenant of a new estate in his land has been said to 
amount to a surrender by implication (g). 

Any person may surrender a copyhold who would be Who may 
capable of conveying the land, if freehold, by a common 
assurance (A). But the person who surrenders should be 
" in the customary seisin," as it is said, for a surrender is 
a giving up of the legal interest which the lord has recog- 
nized as existing in him who surrenders (e). There is 
an exception to this rule, however, in the cases of equit- 
able tenants-in-tail, and formerly also of married women, 
when conveying an estate or surrendering a claim to free- 
bench (k). Among those who cannot convey by surrender 
may be mentioned expectant heirs, contingent remainder- 

{e) Zttum T. Talmoih^ PoUexf. (A) Go. Copyli. a. 34. 

561. («) Doe d. BlaehseU ▼. Tomkina, 

(/) Doe d. Nwrth v. Webber^ 6 11 East, 185. 
Scott, 189. {k) 3 & 4 Wm. IV. o. 74, ss. 63, 

if) Gilb. Ten. 253, 254, and see 77 ; 45 & 46 Vict. c. 75. 
there cited. 



54 THE LAW OF COPYHOLDS. 

men, and persons with equitable estates or rights in the 
land or legal rights to be admitted, rights of entry, con- 
tingent, future, and executoiy interests in copyholds (/)• 
As, however, the admittance of the particular tenant is 
also the admission of the remaindermen (m), and as a 
copyholder who surrenders for a less estate than he 
possesses continues in his old seisin as reversioner (n), 
remaindermen and reversioners may surrender with- 
out being admitted themselves, unless restrained by 
custom (o). The heir of a copyholder may surrender 
before he is admitted, for his title does not depend upon 
his admittance, ^^and the copy made to his ancestor 
belongs to him,'' provided only he satisfies the lord for his 
fine (p) ; and on the same principle, and subject to the 
same condition, the heir of a remainderman or reversioner 
may surrender. A surrenderee, however, cannot surrender 
until he has been admitted, for until admittance he is not 
in the customary seisin. A person who has entered upon 
a copyhold by wrong cannot surrender (q) until he has 
gained an estate by force of the Statutes of Limitation. 
Where joint tenants have been admitted, one of them may 
either surrender or release to the other or others, but by a 
surrender the joint tenancy will be severed (r). 
Persons under Copyholds are subject to the usual rules affecting the 
^ *^' dealings with land by persons imder disability. An infant 
cannot, without a special custom (s), surrender so as to bind 
himself, or his heirs if he should die during minority. 
But his surrender, if clearly beneficial to him or such as 
he would be compellable to make if of full age, is only 
voidable, and may be ratified by his act or acquiescence on 

(/) GaodtitU d. Faulkner Y, Morse, {p) Broum'a Ckm^ 4 Bep. 21a, 

8 T. R. 365. 22 b. 

(m) Oyppen r. Bunney, Cro. Eliz. (q) Keen y. Kirbyt 2 Mod. 32. 

504; Fitch r, Stuekley, i B^, 2S A. (r) Go. Copjh. 8. 35; Gale y. 

(n) Fodger'a Cote, 9 Bep. 104 a, Gale, 2 Cox, Ch. Ca. 136. 

107 a. («) Myler y. Strode, 2 Ch. Bep. 

(o) Butler y. Lightfoot, 3 Leon. 392. 
239. 



CONVEYANCES OF COPYHOLDS. 55 

attaining majoritj (t). Under the Infant Settlements Aot, Infants. 
1855, infants maj settle their real estate with the sanc- 
tion of a judge of the Chancery Division ; and in many 
special oases infants, or their guardians, are authorised by 
statute to sell land for public purposes, as for public works 
under the Lands Clauses Act and the Defence Acts, for 
meeting the expense of inclosing commons under the In- 
closure Acts, for redeeming the land-tax, for providing 
churchyards, sites for churches, schools, and other buildings 
coimected with purposes of charity, art, literature, and 
public instruction (w). By the Settled Land Act, 1882, it 
is provided that where a person who is, in his own right, 
seised of or entitled in possession to land, is an infant, the 
land is settled land for the purposes of that Act, and the 
infant is to be deemed tenant for life of the land (x). The 
Act also provides that where a tenant for life, or a person 
having the powers of a tenant for life under the Act, is an 
infant, or where an infant would, if he were of full age, 
be a tenant for life or have the powers of a tenant for life, 
such powers as the Act empowers a tenant for life of full 
age to exercise may be exercised on behalf of the infant 
tenant by the trustees of the settlement, and if there are 
no trustees, then by such person as the Court may order on 
the application of a testamentary or other guardian or next 
friend of tiie infant (^). 

A lunatic, idiot, or person of unsound mind, is not bound Lunatics. 
by his conveyance, except where the vendor, being ap- 
parently a person of sound mind, has entered into a 
contract which is executed before his incapacity is dis- 
covered, or where a bofid fide purchaser has dealt with him 
not knowing of the incapacity (a). It is now provided by 
the Lunacy Act, 1890 (a), that the committee of the estate 

{t) Zoueh d. Ahboi y. JParaona, 3 (z) Moulton v. Camroux, 4 Exoh. 

BazT. 1794, 1801. 17 ; JBllioi y, Inee, 7 De G. M. & 

(h) See Dart's Y. & P. 3, 17, 18. G. 476, 488 ; and cases collected in 

(x) 46 & 46 Vict. c. 38, s. 69. Dart's V. & P. 6, n. (h). 



women. 



56 THE LAW OF COPYHOLDS. 

of a lunatic may, under order of the judge in lunacy, sell, 
lease, exchange, or convey, in pursuance of a contract, any 
property belonging to the lunatic, or in which he is inter- 
ested (J). The powers exerciseable by the committee 
imder the order of the judge are enumerated in sect. 120 
of the Act, and the four following sections contain various 
provisions as to the exercise of these powers, and as to 
carrying the judge's orders into effect. 
Majiied Prior to the 1st of January, 1883, a married woman's 

estate in copyholds could not be surrendered without her 
husband's assent, and without her separate examination 
either by the steward, or under a special usage by two 
tenants or the like (c) ; and it was held that a custom for 
a married woman to surrender her copyholds without the 
assent of her husband was not a reasonable custom (d). 
The husband's consent did not need to be specified in the 
surrender and admittance unless it was required by the 
custom {e). Under special circumstances the consent of 
the husband might have been dispensed with, and it 
was not required where the husband and wife were living 
apart (/). A husband's interest in his wife's copyhold 
passed, and his interest in a tenement of which they were 
seised as tenants by entireties, will still pass by a separate 
surrender. A surrender in fee by the husband alone, 
however, never operated as a discontinuance of the wife's 
copyhold estate, and on the death of the husband the wife 
might enter on the copyhold notwithstanding his surrender 
in fee (g). But now by virtue of the provisions of the 
Married Women's Property Act, 1882, every married 
woman, although married before January 1st, 1883, may 
dispose of all copyholds, her title to which, whether vested 

{b) 53 Viot. 0. 6, 68. 120-124. {e) Scamon y,Mau>, 3 Bing. 378; 

(e) Smithton y. Cage^ Gro. Jao. Bo^ d. ShelUm y. Shelton, 3 A. & E. 

526 ; Driver d. £erry y. Thompson^ 265. 

4 TauBt. 294 ; Mdleston y. ColUtu, (/) Ex parte Shirley, 5 Bixig. N. 

3 De G. M. & G. 1. C. 226 ; Re Rogers, L. B. 1 0. P. 47. 

{d) Stephens y. TyreU, 2 Wils. 1. (^) BulloeJe y. DihUy, 4 Bep. 23 a. 



CONVETANCES OF COPYHOLDS. 57 

or oontingeiit, and whether in possession reversion or 
remainder, accrued after that date, as her separate property 
in the same manner as if she were a feme sole (h) . A woman 
married after the Ist of January, 1883, is entitled to dis- 
pose of all copyhold estates, whether belonging to her at 
the time of her marriage, or acquired by or devolving on 
her afterwards, as her separate property, as if she were a 
feme sole (i). In the case, therefore, of a woman who was 
married prior to the 1st of January, 1883, and whose title 
to copyholds accrued before that date, the old law will 
still prevail, and her separate examination by the steward 
and her husband's consent will be required for a valid 
surrender. 

Where a copyholder is entitled to surrender his estate, Surrender by 
by the general custom of copyholds he may surrender by ^^^^^7' 
attorney {k) . But where the surrender has to be performed 
in a certain mode, as where the custom of the manor is that 
the copyholder shall surrender to the lord by the hands of 
two customary tenants, or into the hands of the bailiff or 
reeve, there a copyholder cannot surrender by attorney 
without a special custom to warrant it, and such a special 
custom must be strictly proved (/). If the copyholder is 
an infant, he cannot appoint an attorney to surrender his 
copyholds by analogy to the rule of the common law in the 
cfljse of freeholds, but the surrender will be made on his 
behalf by the persons who are authorised by the provisions 
of the Settled Land Act, 1882 {m)y to act on behalf of an 
infant in his own right seised of or entitled in possession 
to land. Married women were also unable to surrender by 
attorney, not being entitled at the common law to appoint 
such attorney to act for them in respect of freehold 
estates (n) ; but by the Conveyancing and Law of Fro- 

(A) 45 & 46 Vict. 0. 75, 8. 6. (m) 45 & 46 Vict. o. 38, as. 59, 

(0 Ihid, B. 2. 60. 

{k) Combed C%u», 9 Bep. 75 a. (») See Qtahaim y. Jaekscnt 6 Q. ' 

(I) Co. litt. 69 a; Co. Copyh. B. 811. 
A. 84. 



58 THE LAW OF COPYHOLDS. 

perty Act, 1881, it was provided that a married woman, 
whether on infant or not, should, by virtue of the Act, have 
power, after the Slst of December, 1881, to appoint by deed, 
as if she were unmarried and of full age, an attorney on 
her behalf for the purpose of doing any act which she her- 
self could do (o) ; and now under the provisions of the 
Married Women's Property Act, 1882, any woman, though 
married prior to the 1st of January, 1883, is capable of 
disposing of all real estate her title to which accrues after 
that date, as if she were o^fenie sole {p) ; and every woman 
married after the last-mentioned date is entitled to deal 
with all her realty, whether belonging to her at the time 
of her marriage, or acquired by or devolving on her after- 
wards, in the same manner as she would have been entitled 
to do if she had been a feme sole {q). The vendor should 
surrender in person, if possible, as the purchaser ought not 
to be forced to rely on a power of attorney which may have 
become void by the death of the vendor or the subsequent 
incapacity of the attorney ; and in equity he will not be 
aided unless he surrenders in person, or gives a good reason 
for doing it by deputy (r) ; but if the instrument creating 
the power is executed after the Slst of December, 1882, 
and is declared to be irrevocable for a fixed time therein 
specified, not exceeding one year from the date of the 
instrument, the power will not be deemed, as against the 
purchaser, to be revoked within that fixed time, either by 
anything done by the vendor without the concurrence of 
the attorney, or by the death, marriage, lunacy, unsound- 
ness of mind, or bankruptcy of the vendor («). If the 
vendor has covenanted to surrender on request, it is no 
breach to refuse to authorise an attorney to surrender for 
him it). The attorney must be regularly appointed by 
deed, and may be an infant, or married woman, or under 

(o) 44 & 45 Yiot c. 41, b. 40. Noel v, JTeston, 6 ICadd. 50. 

Ip) 45 & 46 Viot. 0. 75, s. 5. (») 45 & 46 Viot. c. 39, s. 9. 

(q) Ibid, 8. 2. (t) Symmt y. Smith, Cio. Gar. 

(r) mtehel v. NeaU, 2 7ee. 679 ; 299. 



CONVEYANCES OF COPYHOLDS. 69 

any disability, if only of sound mind. The attorney should 
make the surrender in the usual way, by the rod, or other- 
wise according to. the custom, and either in the name of 
his principal, or in his own name showing the authority (u) 
and stating that the act is done by force of it. If he 
exceeds his authority, his act will be valid only so far as 
he was authorised by the principal {x). The power of 
attorney is revoked by the death of the person who gave 
it, unless there is a custom within the manor to give an 
authority in the nature of a power which shall be good 
after the copyholder's death (y), or unless the power faUs 
within the provisions of the Conveyancing Act, 1882 (»). 

The surrender may be in general words, but it should Uses of snr- 
declare what estate the surrenderee is to take, for a sur- ^^ ^^' 
render without such a limitation might be held to be a 
relinquishment to the use of the lord, unless the uses were 
explained by the subsequent admittance, or unless there 
should be evidence of a resulting trust (a). If the limita- 
tion of the use is general, as to the use of A., he will have 
but an estate for life, for the same words are necessary to 
create an estate in fee simple or in fee tail in copyholds as 
are required in freeholds, unless there is a special custom 
to the contrary (6). It has been held, however, that a 
custom that the lord may grant in fee to him to whose use 
the suirender is made, where the surrender contains no 
limitation of the estate, is a good custom (c). The sur- 
render may be made to the use of anyone who could take 
under a common-law assurance if the land were freehold, 
and to some others, as to one who is not capable of taking 
at the time of surrender, or to an unborn or unascertained 
person, provided such person is capable of taking at the 

(if) See 44 & 45 Vict. o. 41, b. 46. {b) Bunting v. LepingweU, 4 Bep. 

\s) CarUr y. Carter, 3 K. & J. 29a, 29b; Co. lAtt. 59b; Co. 

617. Gopjh. B. 49. 

(y) See Sohy v. Twelves, Sty. 423. {e) Brown r. Forsier, Gro. Eliz. 

(s) 45 & 46 Yict. 0. 39, 88. 8, 9. 392. 
(a) Co. Copyh. b. 35. 



60 THE LAW OF COPYHOLDS. 

time of admittanoe, the reason being that ^^ a Biirrender is 
a thing executory which is executed by the subsequent 
admittance, %nd nothing at all is invested in the grantee 
before the lord hath admitted him according to the sur- 
render ; and therefore, if at the time of the admittance the 
grantee be in rerum naturdy and able to take, that will 
serve" (d). Even under the old law a married woman 
might receive a copyhold estate by surrender from her 
husband " because she cometh in not immediately by him, 
but by mediate means, viz., by the admittance of the lord 
according to the surrender" (e). For the same reason, a 
married woman who is a copyholder may surrender to the 
use of her husband (/), and any copyholder may surrender 
to the use of himself and another person. And the estate 
may be limited to such uses as a certain person may ap- 
point, or otherwise to springing, shifting, and executory 
uses : the lord, however, as above mentioned, being at 
liberty to decline a surrender which might have the effect 
of shifting the tenancy without his assent (g). But it has 
been held that where a lord accepts a surrender which 
refers to the trusts of an indenture, and admits a tenant in 
accordance with the terms of the surrender, he is to be 
considered as consenting to these trusts, and is bound by 
them upon the death of the trustee without an heir (h). 
There is no necessity, however, to specify the uses of a 
surrender on the court rolls. It is sufficient if there is 
an endorsement of the uses on the surrender by the 
steward (i). 
Settlement of When copyholds are included in a settlement, the trusts 
are in general declared by a separate deed, and limited to 
follow the uses of the freeholds (if any) which are com- 

(d) Go. Gopyh. s. 35. {L<n-d of), 1 A. & E. 283 ; Cfuthbtrt 

[e) Ibid, y. Lempriere, 3 H. & S. 158. 

(/) Driver d. Berry v. Thompton, {h) Weaver v. MauU, 2 B. & 

4 Taunt. 294. 31. 97. 

(^) See Boddington y. Abemethy, (t) Car y. £lli$m, 3 Atk. 73. 

5 B. &0. 776; J^y. Oundle Manor 



0ON\^YANCES OF COPYHOLDS. 61 

piifled in the same settlement, so far as the rules of law 
and equity (having regard to the differences of twinre) 
will permit. Where there is no estate vested in trustees, 
the uses will be specified in the surrender, regard being 
had to the rule that the lord is not bound to accept a 
conveyance prejudicial to himself. But in some manors 
the custom authorises a declaration of trusts in the sur- 
render (A). By the Settled Land Act, 1882 (/), it is 
provided that where copyhold or customary land is acquired 
by purchase, or in exchange, or on partition by the trustees 
of a settlement, and is to be made subject to the settlement, 
it is to be conveyed to and vested in the trustees of the 
settlement on the trusts, and subject to the powers and 
provisions, which under the settlement are subsisting with 
respect to the settled Icmd. This direction as to vesting 
the copyholds in the trustees upon trust is, it is said, to 
avoid aU questions as to the possibility of actually convey- 
ing the copyholds to the uses declared of the freeholds ; for 
as copyholds are not within the Statute of Uses, successive 
legal estates in copyholds can only be raised by surrender 
to uses, and not by merely declaring the uses upon the 
conveyance (w). 

If the copyhold is surrendered to charitable uses the Charitable 
trusts will be specified in a separate deed and not noticed ^^^^' 
in the surrender, unless such notice is allowed by the 
custom. The deed must be made in the manner pre- 
scribed by the Mortmain and Charitable Uses Act, 1888 (w), 
and must be enrolled in the Central Office of the Supreme 
Court of Judicature within six months after execution (o), 
and if the surrender declares the trusts, it must be enrolled 
within the same period (/?). 

A surrender will be construed in the same way as a Constraotion 

of Burrendets. 

{k} Snook Y. Mattock^ 6 A. & E. anoing, &c. Acto, 234. 
2S9 ; Reyina y. Corhitty 1 E. & B. (n) 51 & 52 Vict. o. 42, seo. 4, 

836. Bub-seos. (l)-(6). 

(I) Sect. 24 (1), (3). (o) Ibid., seo. 4 (9). 

(f») Hood & ChalliB, Convey- {p) Ibid, 



62 



THE LAW OF COPYHOLDS. 



Effect of a 
Burrender. 



deed at common h,'w{q)j with an exception as to the 
customs of certain manors, which give special meemings to 
such phrases as *^ to him and his," ^^ to him, his sequels and 
assigns," and the like(r). But the construction of sur- 
renders was not always so strict, and in some of the earlier 
cases a tendency may be observed to give effect to the 
intention of the parties as in a will, rather than to follow 
the legal meaning of the terms employed («). 

The general effect of a surrender is, that it binds the 
lands from its date, so that the surrenderor cannot 
properly convey to any other person, or make the land 
subject to any other incumbrance than it was subject to 
at the time of the surrender (^). The copyholder cannot 
convey more than he has in the land(w), and will not be 
bound by way of estoppel by his subsequent possession of 
an estate which he may have improperly included in a 
surrender (a;). No more of the copyholder's estate will 
pass than is necessary to effect his intention : thus, if a 
copyholder in fee surrenders to the use of A. for life, the 
residue imdisposed of continues in him (y) ; and if the 
conveyance is to particular uses, with the ultimate limita- 
tion to his own right heirs, they will take such limitation 
as of the old estate (z). No estate passes to the lord, nor 
does the land vest in him as a trustee, for he is only 
an instrument through whom the lands must be conveyed 
according to the surrender (a) ; and the surrenderee when 
admitted is in by the surrenderor and not by the lord (6) ; 



{q) Sutton Y. Stone, 2 Atk. 101 ; 
Idle V. Cook, 1 P. Wms. 70 ; IFHffht 
Y. Kemp, 3 T. B. 470 ; Widdotcson 
Y. SarringUm {Earl of ),lJ. AW. 
632. 

(r) Btmting y. Zepingwell, 4 Bep. 
29 a, 29 b. 

(«) See Go. Oopyh. b. 35, and 
jadgmentfi of €K>uld and Tnrton, 
JJ., in Fisher y. Wigff, 1 P. Wmfl. 
14. 

(0 Co. Copyh. B. 39; Doe d. 



ToJUldy. ToJUld, 11 East, 246. 

(«) Doe d. Dormer y. WiUon, 4 
B. & Aid. 803. 

(x) Doe d. Blaehtell y. Totnkint, 
11 East, 185. 

(y) Fodger'a Gate, 9 Bep. 104 a, 
107 a. 

{z) Foe d. mdm y. Orijits, 4 
Burr. 1952, 1960. 

(a) George d. Thombury y, Jew, 
Amb. 627. 

(b) Co. Copyh. b. 41. 



CONVEYANCES OF COPYHOLDS. 63 

but in the case of copyholds for liygs there is, it seems, an 
exception to this rule ; for if a copyholder for lives conveys 
to the nse of another to whom the lord grants, the estate 
vests in the lord, and the grantee is in by him(c). The 
lord cannot vary the estate, or grant to any person other 
than the surrenderor has appointed (d) ; and, accordingly, if 
there is any variation between the admittance and the 
surrender, either in the person, estate, or tenure, or in any 
other collateral points, the^ lord only transfers an estate 
according to the surrender («). 

A surrenderee has no legal estate until he comes in and is Estate of 
admitted, because there must be the assent of the lord to ^'"^^ ®^®* 
the surrender of the previous tenant (/). Consequently, 
before admittance is made, the surrenderor remains tenant 
to the lord, and is liable to all the customary duties and 
services (^). 

So far, however, as the interest which the non-admittance 
of the surrenderee leaves in the surrenderor is for the lord's 
benefit, it may be waived by him, and so destroyed (A). 
As between the parties to the conveyance, the surrender is 
the material part of the conveyance, and the surrenderor 
will hold in trust for the surrenderee {i) ; the heir of the 
latter will inherit (A:), and, in equity at least, a right of free- 
bench or customaiy curtesy will attach on the estate. The 
title of the surrenderee, after admittance has been mcule, 
is taken back to the time of the surrender (/), so that he 
might lay a demise in an action of ejectment to recover 
the copyhold at any time after the surrender, but he cannot 
bring the action before he has been admitted (m). 

{e) Doe d. Dand r. Thompton, 13 1 Eq. 449. 
Q. B. 670. (i) mnt(m v. Einton, 2 Yes. 681, 

{d) We$twiek t. Wyer, 4 Bep. 638 ; Broum y. JUtindle, 3 Yes. jnn. 

28 a. 256. 

{e) Co. Gopfh. 8. 41. (k) Vaughan y. Atkins, 6 Bnir. 

(/) £oe d. Ooih y. Zovelei$, 2 B. 2764, 2786. 
fr Aid. 453. (0 Benton y. Seott, I Salk. 185. 

(jgi) Go. Copyli. s. 39. (m) Hold/attd. WooUama y. Clap- 

(h) Minion y. JBRrwood, L. B. ham, I T. B. 600. 



64 THE LAW OF COPYHOLDS. 

Before admittance the purchaser cannot surrender, and 
a subsequent admittance will not make the instrument 
yaUd, so that if an unadmitted purchaser surrenders and 
the surrenderee be admitted, this will not amount to such 
an admittance by implication, even if made by the lord 
himself, as will make the transaction legally valid (n). As 
against the surrenderor an unadmitted surrenderee has an 
estate in equity which he may devise or assign (o) ; but as 
against the lord an unadmitted surrenderee had no right 
before the passing of the Wills Act, 1837(/?), to devise 
his right to be admitted, so as to confer a legal estate on 
the devisee {q) ; and it would seem also that he cannot 
assign the right in such a way as to entitle his assignee 
to call upon the lord for admittance (r). 

Before the Wills Act, 1837, the devisee of an imad- 
mitted devisee could not acquire the legal estate without 
a surrender from the heir-at-law of the original testator, or 
an admission followed by a release from the persons having 
the first title to admittance (s). This Act, however, enables 
every person to devise aU the real estate of the nature of 
customary freehold or tenant-right, customary or copyhold 
or any other tenure, to which he may be entitled either in 
law or in equity at the time of his death, and which if 
not so devised would devolve on his customary heir, or in 
a case of descent, upon the customary heir of his ancestor, 
notwithstanding that such person may not have surrendered 
the same to the use of his will, or that, being entitled as 
heir devisee or otherwise to be admitted thereto, he may 
not have taken admittance, or that in consequence of the 
want of a custom to devise or to surrender to the use of a 

(n) Go. Gopyh. a. 39 ; Wilson v. East, S; Doe d. Tofield y. Tojieldy 

WeddeU, Yelv. 144, 145 ; Doe d. 11 East, 246 ; Matthew y. Osborne, 

To/eld T. Tofield, 11 East, 246. 13 G. B. 919. 

(o) Daviesr,£evers?Mmf 2 Yreem, (r) See Matthew v. Osborne, 13 

167 ; The King y. Hendon Manor G. B. 919, 941. 

{Lord o/), 2 T. R. 484. (») Smith y. Triggs, 1 Stra. 487 ; 

(p) 1 Vict. 0. 26. Wainewright v. Elwell, 1 Madd. 

{q) Doe d. Vernon v. Vernon, 7 627. 



* 



CONVEYANCES OP COPYHOLDS. 65 

inll he could not, previously to the passing of the Act^ 
have disposed of such real estate by will(^). All stamp 
duties, fees, and sums of money which would have been 
payable if there had been a surrender to the use of the 
wiQ in accordance with the custom of the manor, are still 
to be payable when the will, or an extract thereof, is 
entered on the court rolls, and no person is entitled to be 
admitted by. virtae of the will of an unadmitted testator, 
except on payment of such fines, fees, and stamp duties as 
would have been paid prior to the passing of the Wills 
Act on the admittance of the testator, and on a surrender 
to the use of his will {u). 

Surrenders were formerly said to be made upon a tacit Presentment 
condition that they should be presented by the homage for ^° "^ 
the instraction of the lord and the other tenants, and were 
made void in certain cases by a neglect of this formality. 
But the presentment is now unnecessary, except where a 
surrender has been made out of court by special custom to 
persons other than the lord or steward ; in such cases a 
formal presentment is useful for bringing the matter before 
the lord or steward ; and it is provided by the Copyhold 
Act, 1841 (ar), that every regular surrender, deed of sur- 
render, will, codicil, grant, and admission, entered on the 
court roll pursuant to the Act, shall be deemed to have 
been duly presented ; and that it shall not be essential to 
the validity of any admission that a presentment shall be 
made by the homage of the iostrument or fact in pur- 
suance of which admission shall have been granted (y). 
These provisions, however, do not authorise or empower 
the lord of a manor who is entitled by the custom to grant, 
with the consent of the homage, any common or waste 
lands to be held as copyholds, to make such grants without 
the consent of the homage assembled at a court which has 

(t) 1 Vict. c. 26, 8. 8. See Ap- («) 4 & 5 Vict. c. 86, s. 89. 

pendix, pott. (y) Ibid. b. 90. 

(») IHd, 8. 4. 
E. F 



.\ 



conveyances. 



66 THE LAW OF COPYHOLDS. 

been duly summoned and held in accordance with the 
custom of the manor (2). 
Voluntary j^ surrender made for valuable consideration cannot 

be revoked (a), and as between the original parties even a 
voluntary surrender will be binding, though this was 
formerly doubted {b) ; it has been decided, however, that 
copyholds ore within the statute 27 ElLs. c. 4, which avoids 
all conveyances of any lands, tenements, or hereditaments 
mcule for the intent of defrauding and deceiving persons 
afterwards purchasing the same, so that purchaser for 
value will be preferred to any one claiming under a volim- 
tary surrender (c). Copyholds were not within the statute 
13 Eliz. c. 5, for the protection of creditors, so that a 
surrender or conveyance of them for an inadequate con- 
sideration could not be attacked as fraudulent ((/), nor were 
they assets for the debts of a testator further than he 
charged them(^). The Act 3 & 4 Will IV. c. 104, how- 
ever, provided that where a testator died seised of copyhold 
estates which he had not by his last will charged with, or 
devised subject to, the payment of his debts, such estates 
should be assets for the payment of both his simple con- 
tract and specialty debts (/). Before the Act 1 & 2 Vict. 
c. 110, copyholds could not be taken in execution upon a 
judgment, because it would have been prejudicial to the 
lord (g) ; but by the last-mentioned Act all real estates, 
including lands and tenements of copyhold or customary 
tenure, of which the person against whom execution issues 
was seised at the time of entering up the judgment, or at 
any time afterwards, or over which he alone had a dis- 
posing power, may be taken in execution, but the person 

(z) 4 & 5 Viot. 0. 35, B. 91. See B. & Ad. 131. 
50 & 51 Viot. 0. 73, 8. 6. {d) Mathews y. Feaver, I Cox, 

(a) Co. Gopyh. 8. 39 ; JPayne y. CI). Gas. 278. 
Barker, O. Bridg. 18, 24. {e) Aldrieh y. Cooper, 8 Vee. jun. 

{b) See JhOvertoft y. JPUhertoft, 382, 393. 
18 Ves. jun. 84, 92 ; Smith y. Oar- (f) Sect. 1. 

land, 2 ICer. 123 ; Co. Copyh. a. 39. (ff) See Cannon y. Farh, 2 Eq. 

{c) Doe d. Tumtill y. BottneU, 5 Cas. Alyr. 226, pi. 6. 



OONYEYANCES OF COPYHOLDS. 67 

to whom the land is delivered in execution is liable to the 
performance of the services due to the lord (A). 

Where a copyholder covenants or agrees to surrender, Covenant to 
but dies before performing his contract, a court of equity ^j^en sor- 
will supply the want of a surrender in favour of a pur- ^^ *"P" 
chaser for value or mortgagee, and will enforce the contract 
against the heir, widow, devisee, surviving joint-tenant, or 
*^ the life " or person taking in succession after the death 
of the beneficial owner of a copyhold for lives (t) ; and the 
devisee of a purchaser who dies before the conveyance 
under a contract can insist on the surrender being made to 
his use {k). But in the case of a voluntary conveyance, 
the defect in a surrender, or the want of a surrender, will 
not be supplied against the customary heir, unless he has 
done something to prevent the contract being fulfilled (/). 

Copyholds may be surrendered on condition ; and this Surrender on 
is the usual practice when it is desired to mortgage the 
eopyhold. The condition is generally contaiued in the 
surrender itself, and enrolled on the court rolls, but it may 
be contained in a separate deed. The person to whom a 
conditional surrender is made does not usually take ad* 
mittance, but a custom to compel his admittance would be 
valid (m). If the condition is performed, or in the case of 
a mortgage if the money is repaid before the admittance 
of the surrenderee, the surrenderee simply acknowledges 
satisfaction, and authorises the steward to enter the acknow- 
ledgment on the court rolls. "When this has been done, 
the surrenderor becomes possessed of his old estate in the 
copyhold, and does not require to be re-admitted. But if 
the surrenderee has been admitted, then it would seem that 

(A) Sect. 11. jun. 660, 664 ; Dart, V. & P. o. 7, 

(t) Barker y. JSiU, 2 Ch. Rep. b. 6. 

218; AnoH.,2 Freem. 66; Einton {I) WycherUff t. WycherUy^ 2 

T. EmUm, 2 Yes. 631, 638 ; Brown Eden, 176, 177. 

T.Baindle, 3 Vee. jun. 266 ; Neevey. (m) B<upoU v. Long^ Telv. 1 ; 

Kick^ 9 Hod. 106. King y. Dillision, 3 Mod. 221 ; 1 

{k) Rose y. Cunynghame, 11 Yes. Gas. & Op. 191. 

f2 



1 



68 THE LAW OF COPYHOLDS. 

even upon a subsequent performance of the condition, or 
upon payment of the money, a fresh admittance would 
have to be taken by the original surrenderor (n). If the 
surrenderee has been admitted in the first instance even 
before forfeiture of the condition, the surrenderor may 
release the condition by deed (o), and similarly if the con- 
dition is broken the surrenderor may release by deed any 
equity of redemption which he has (p) ; and in neither of 
these cases will any fine be payable to the lord, for the 
surrenderee by his admission is already tenant to the lord. 
Admittance. Admittance has been defined as the lord's acceptance of 
a person into the tenancy (q). Such acceptance was usually 
signified in former times by the surrenderee appearing at 
the lord's court and applying to be admitted, and by the 
lord or his steward deKvering to him a rod or twig or 
other customary symbol of possession; the surrenderee 
might have been required to take an oath of fealty, but in 
practice this was usually respited. All that wm reaUy 
requisite, however, was that the lord should in some un- 
equivocal way express his consent to the surrenderee be- 
coming his tenant ; thus, the lord might admit without 
holding a court, or he might show his consent to the new 
tenancy or ratify the change of tenancy by summoning the 
7/^4 t tiS. 4ttf, alienee to sit on the homage jury, or taking a fine or rent 

from him in respect of the tenement (r). But the mere 
assessment of a fine, or the acceptance of rent which might 
be due from him in another capacity, is not su£B[cient 
evidence of admission (s). The steward's acceptance of the 
presentment, entry of the surrender, or delivery of a copy 
to the alienee, or all these things together, would not be 
sufficient; though if the lord in person did these things 
they would in all probability be considered to amount to 

(ft) See Gilb. Ten. 276 ; Fawcet {q) Watk. Gopyh. i. 248. 

V. Lowther^ 2 Vea. 300. (r) JProncell v. JTelehe, Qodb. 

(o) SuU T. Sharbraok, Oro. Jac. 268. 

86. {s) Broum v. Dyer^ 11 Mod. 73 ; 

(p) Kite V. Q^9mton^ 4 Bep. 26 a. JDoe d. Vernon y. Vernon^ 7 East, 8. 



k 



CONVEYANCES OF COPYHOLDS. 69 

an admittance. It v^as formerly thought that the admit- 
tance of the alienee of a person who had not been admitted 
might amount to an implied admission of the latter ; but 
the matter has been decided the other way {t). 

When the admittance is mcule, the estate is held by Effect of 
relation to have been in the surrenderee from the date of *^°^^**'^^®- 
the surrender (tt). The operation of the admittance is 
governed by the limitation of uses in the surrender, the 
lord or steward having but a bare customary authority to 
admit according to the surrender. If, therefore, the sur- 
render is made to the use of one person and another is 
admitted, the transaction will be of no e£Eect : if the right 
person and another are admitted together, the admission 
will enure only to the benefit of the person named in the 
surrender : where the surrender is conditional and the ad- 
mittance absolute, the admittance is void ; but if a con- 
ditional admittance be mcule on an absolute surrender, the 
admittance will be held good and the condition disre- 
garded (a?). 

Admittance does not of itself constitute a possession (^), 
and where two adverse parties claim title to the same 
copyhold both maybe admitted (2). Admittance enures 
only according to the title in respect of which it is made, 
no matter in what terms it is made, and it confers no 
estate or title of itself (a). As the lord, in the case of 
admittance upon surrender, is merely an instrument, the 
state of the lord's title is immaterial, provided only he is 
lord de facto; and in this respect admittance upon surrender 
differs from admittance upon a voluntary grant, where the 

{t) Wilton V. WeddeU, Yelv. 144 ; 27 a ; Co. Copyh. 8. 41. 

Doe d. Tofield v. Tqfield, 11 East, (y) ZwM d. Jbrw v. i^orw, 7 East, 

246 ; but Bee WiUon y. AUeriy 1 J. 186. 

& W. 611, 613. {z) Rex v. Hexham Manor (Lord 

(») Boldfaet d. Wbollama v. Clap- of), 5 A. & E. 659. 

Mam, 1 T. R. 000 ; Smith v. Adams, {a) Right d. Wells {D, and C. of) 

18 Beav. 499. v. JBateden, 8 East, 260 ; Doe d. 

(x) Tatemer v. Cromwell, 4 Rep. Wheeler v. Oibbons, 7 0. & P. 161. 



70 



THE LAW OF COPYHOLDS. 



Tenant on 
admittance to 
reoeive 
notioe. 



Admittanoe 
by attorney. 



lord most have the power of granting and therefore of 
admitting (6). 

On the admittanoe or enrolment of any tenant after the 
31st of December, 1887, the steward of the manor is 
bound, without any charge beyond the fee for admission 
or enrolment, to give the tenant a notice to the effect that 
if he desires to enfranchise the copyhold and make it free- 
hold, he can do so on payment of compensation to the lord 
and of the steward's fees, and that such compensation may 
be fixed either by agreement between the lord and tenant, 
or by any valuers whom they may appoint, or through the 
agency of the Board of Agriculture {c). If the steward 
neglects to serve such a notice on the tenant who has been 
admitted or enrolled, he is not entitled to charge any fee 
for the admission or enrolment (d). 

Admittance may be taken by attorney. The lord for- 
merly could not be compelled to admit by attorney, because 
he might have claimed fealty which was a personal duty : 
but in practice the fealty was almost always respited (e) ; 
but now by the second section of the Copyhold Act, 
1887 (/), it is provided that after the commencement of 
that Act (g) every person entitled to admission may be 
admitted by himself or his attorney duly appointed, whether 
orally or in writing. There are, however, special provi- 
sions by statute for the admittance of infants, lunatics, and 
persons of unsound mind. The Act 11 Geo. IV. and 
1 Will. IV. c. 65, provides that when an infant is entitled 
to be admitted to a copyhold, he or his attorney or guardian 
is to appear at one of the three next courts (proper 
notice being given) and shall offer to be admitted, and shall 
take admittance {h) ; that such attorney may be appointed 



(b) Doe d. Burge$B t. Thompson, 

5 A. & E. 632. 

((?) 60 & 61 Vict. 0. 73, 8. 1 ; 62 

6 63 Yiot. 0. 30. 

(d) 60 & 61 Yiot. 0. 73, s. 1. 



(e) See Combei* Case, 9 Bep. 76 a ; 
Blunt V. Clark, 2 Sid. 37, 61 ; Gilb. 
Ten. 284. 

(/) 60 & 61 Tict. c. 73. 

iff) 16th September, 1887. 

(A) Sect. 8. 



CONVEYANCES OF COPYHOLDS. 71 

by an infant having no guardian, by writing under his 
hand and seal (t) ; and that in default of such appointment 
the lord, after proclamations duly made in three courts, 
may appoint the attorney and make the admittance (k). 
But an infant does not forfeit his land for his neglect or 
refusal to go to any of the manorial courts, nor for his 
omission, denial, or refusal to pay any fine imposed or set 
upon his admittance ; and if the fine is not warranted by 
the custom of the manor, or is unlawful, he may controvert 
the legality of the fine in the usual manner (/). The Act 
of 11 Geo. rV. & 1 Will. IV. contained similar provisions 
with respect to married women and lunatics ; but as regards 
married women, these provisions have been practically 
rendered unnecessary by the Married Women's Property 
Act, 1882, which enables a married woman to acquire real 
property in the same manner as if she were a, feme sole {m). 
The provisions relating to the admittance of lunatics are 
now contained in the Lunacy Act, 1890, which consolidates 
most of the previous enactments respecting lunatics («) ; . 
and in the case of a lunatic so found by inquisition the 
committee of his estate may, by virtue of these provisions, 
offer himself to be admitted tenant in the name and on 
behalf of the limatic, and in default the lord or his steward 
may, after holding the prescribed number of courts and 
making the necessary proclamations, appoint an attorney 
for the lunatic for the purpose of admittance only, and by 
that attorney admit the lunatic tenant of the land (o) . The 
expenses of admittance wiU be defrayed out of the property 
of the lunatic which the judge in lunacy orders to be 
applied to that purpose (p). 

So long as the lord's rights are not infringed by the Admittance 

(•) Sect. 4. The appointment {n) 53 Vict. c. 6. 

may now be made anJlj : 60 & 51 (o) Ibid. b. 125. 

Vict. 0. 73, B. 2. ip) Ibid. b. 117. See ^ parts 

(i) Sect. 6. Deffffe, and JSx parte Grimatone, 4 

(0 Sects. 9, 10. Bro. C. C. 235, n. 

(m) 45 & 46 Vict. c. 75, 88. 2, 5. 



72 



THE LAW OF COPYHOLDS. 



oompellable 
bj tenant. 



Whether 
admittance 
compellable 
bj lord. 



proposed admittance, lie is compellable to admit any person 
having a,primdfacie title to the copyhold, since the admis- 
sion of itself gives no title, but only a right to bring an 
action for recovery {q). But where it is plain that the 
person claiming admission has no title at all, the admittance 
should not be made (r) ; and where it is clear that under 
the provisions of the Statutes of Limitation a claimant's 
title to the copyhold is barred by lapse of time, the Court 
will not compel his admittance («). The Court of Chancery 
formerly compelled the lord to admit, but the jurisdiction 
has fallen into disuse: and since 1772 the practice has 
been to get a mandamus^ directed to the lord and steward, 
to admit (t). But a mandamm does not lie in the case of 
Crown manors, and even although the steward is appointed 
by the Commissioners of Woods and Forests, the proceed- 
ings to obtain admittance must be by petition of right or 
other remedy available against the Crown (w). 

The lord cannot in general compel the surrenderee to 
come for admittance, since he has ab*eady a tenant on the 
roll to answer for the services ; but in some manors there 
are special customs making surrenders void unless admit- 
tance is taten within a certain time, or giving the lord a 
forfeiture or a power to seize quomque and to satisfy him- 
self out of the rents and profits for his fines, costs, and 
expenses. As these customs, however, are only for the 
lord's benefit, they may be waived by him (a?). A covenant 
to surrender cannot be enforced by the lord so as to entitle 
him to compel a new admittance (y). The estates of 



(q) TFiddowaon ▼. Harrington 
{Earl of), 1 J. &. W. 632, 6i3 ; 
J^. ▼. Dendy, 1 E. & B. 829. 

(r) See It&ff, y. Garland, L. B. 5 
Q. B. 269 ; Garland y. Mead, L. B. 
6 Q. B. 441. 

{a) Beg. v. Agardsley JIfanor (Lord 
of), 6 Dowl. 19 ; WalUra r. Webb, 
L. B. 6 Oh. 631. 



{i) Bex y. Hendon Manor {Lord of), 
2 T. B. 484 ; Bex y. Ooggan, 6 East, 
431 ; Beg. y. Witchford Manor 
{Steward of), 7 Dowl. 709 ; 8, G, 
nom. Beg, y. Evans, 1 Q. B. 366 n. 

(«) Beg. y. Fowell, 1 Q. B. 352. 

{x) Doe d. Warwick y. Coombet, 
6 Q. B. 686. 

(y) Sail y. Bromley, 36 Oh. Diy. 
642. 



CONVEYANCES OF COPYHOLDS. 73 

infants are protected from forfeiture by the provisions 
of the statute 11 Geo. IV. & 1 Will. IV. c. 65, above 
mentioned. 

The admittance of a particular tenant is the admittance Adxnittanoeof 
of all in remainder (2), and the principle on which this rule ^i^nt. 
rests, namely, that the particular estate and the remainder 
make but one estate, applies equally to the reversioner (a) ; 
but there may be a custom to compel remaindermen to 
take admittance {b). The admittance of one of several 
coparceners or joint tenants is the admittcmce of all (c), but 
tenants in common must be admitted separately {d). 

A copyholder must be re-admitted who acquires a new Re-admit- 
estate in the tenement (except by way of release), as where ^^' 
he divests himself of his estate by any assurance by which 
he takes back a particular estate to himself, or when, having 
taken admittance for a particular estate, he subsequently 
acquires an estate in remainder (^). 

The sale of copyholds is usually effected by means of a Conveyance 
covenant to surrender, the same deed containing the cove- ^^ 
nants for title, as the covenants for title cannot be entered 
on the court rolls (/). The covenant is followed by an 
actual surrender to the person taking the covenant or his 
assigns, and the tenancy is afterwards perfected by admit- . 
tance, the lord not being entitled to take notice of any 
assignment of the benefit of the contract before sur- 
render (g). There should be a declaration in the covenant 
to surrender that the covenantor will until the surrender 
hold the land as a trustee for the purchaser; in the 
absence of such a declaration, the vendor will not be 
considered to be a trustee, imless the contract has been 

(x) JFitch y. Stuekley, 4 Bep. 23 a. B. 913. 

(a) Doe d. Winder v. Laxcea, 7 A. (*) Reg. v. Corhett, 1 E. & B. 

& E. 196. 836 ; Doe d. Winder y. Lawea, 7 

(h) Doe d. Whitbread y. Jenney, A. & E. 196. 

6 East, 622 ; Sandjield y. Sand- (/) Day. Ffec. in Cony. 4th ed. 

jMd, 3 De G. F. & J. 766. yol. ii. pt. 1, 205. 

(e) 3ettceY.Oilpin,L,B,.Z'Eji.76, (^) See Sail y. Dromleiff 86 Ch. 

(d) Traheme y. Gardner^ 6 E. & Diy. 642. 



74 



THE LAW OF CX)PYH0LD8. 

executed, for the ooyenant to surrender is no more than a 
mere agreement to oonvey {h) ; but if the oontract has been 
executed, the vendoi: will be considered to be a trustee 
within the meaning of the Trustee Acts, but not otherwise, 
and if he should refuse to surrender, a vesting order, or an 
order for some other person to surrender in his stead, may 
be obtained under the Trustee Acts (/). When copyholds 
and freeholds are sold together, the usual mode of transfer 
is the most convenient : but the safest plan is to convey 
by an actual surrender, followed by the deed con- 
taining covenants for title and perfected by admittance. 
It has been doubted whether the benefit of the covenants 
wUl run with the land if the deed containing them pre- 
cedes the surrender : but the point has not been much 
regarded in practice, and perhaps would not arise when the 
surrender and the covenants for title are substantially 
parts of the same transaction {k). Copyholds are within 
the equity of the statute 32 Hen. VIII. c. 34, which gives 
to assignees of the reversion the benefit of covenants run- 
ning with the land {I). It may be noticed here, that after 
a surrender the heir of the purchaser may sue upon the 
covenants for title before admittance (m) ; but this privilege 
would not be extended to the heir of a copyholder for lives 
before admittance, even if there should be an inheritable 
right of renewal (n). Though a covenant for value to 
surrender is binding as between surrenderor and sur- 
renderee, it cannot be enforced by the lord so as to give 
him any right to compel a new admittance or to a fine in 
respect thereof (o). 

{h) Whiibread v. Jordan, 1 T. & {}) See Glover v. Cope, 3 Lev. 

0. Ex. 303 ; 4 Y. & 0. Ex. 666. 326 ; Riddell v. Riddell, 7 Sim. 629. 

(i) Re CoUingtcood^e TruatSy 6 W. (»») Clarke v. Pennifathery 4 Rep. 

B. 636 ; In re Cuminffy L. R. 6 Gh. 23 b. 

72 ; In re Growers Jllortgagey L. B. (») Doe d. Dand y. Thompiony 13 

13 Eq. 26. Q. B. 670 ; Boe d. SamiUon ▼. 

(k) Day. Preo. Cony. 4th ed. Clifty 12 A. & E. 666. 

yol. ii. pt. 1, 207. (o) EaU y. Bromley y 86 Ch. Diy. 

642. 



CX)NVEYANCES OF COPYHOLDS. 76 

It is unsafe to pay the purchaBe-monej before the but- Enrolment, 
render is entered on the rolls, as a subsequent purchaser 
might otherwise get in the legal estate by surrender and 
admittance, and so gain the advantage of title. On every 
Bale of copyholds the steward is bound, within four months 
of the surrender, to make out a duly stamped copy of 
court-roll of the surrender, and have the same ready for 
delivery to the person entitled thereto, under a penalty of 
fifty pounds for neglect : but he may refuse to deliver such 
copy until his fees and the proper duty shall have been 
paid(/?). 

On a sale of copyholds, in addition to the usual searches Searches. 
for incumbrances, the purchaser should search the court- 
rolls (^), and require evidence of the customs of the manor 
on any point which may affect the property purchased (r). 
When freeholds and copyholds are intermixed, it is neces- Usual and 
sary to stipulate in the conditions of sale that the purchaser ^ecwsary 

, .... conditiona. 

shall not be entitled to have the boundaries distinguished, 
and (when required by the circumstances) to provide that 
the vendor shall not be bound to distinguish the manors 
of which the different tenements are held, or of which they 
are parcels respectively ; otherwise it seems that the pur- 
chaser will be entitled to have the land of each particular 
tenure pointed out and distinguished by its boundaries («). 
A purchaser having to pay a certain sum for timber will 
not be entitled, if these conditions are used, to any abate- 
ment of price upon the ground that he is prevented from 
cutting any of the timber by reason of the confusion of 
boundaries (^). 

A condition to relieve the vendor from identifying the 
parcels will not preclude a purchaser from requiring evi- 

(p) b^ k 55 Vict. 0. 39 (Stamp to pnrohaser of copyhold of prior 

Act, 1891), 88. 67f 68. See Ap- inoamhrances. 

pendiz, post. (r) Dart, V. & P. 132, 566, 567. 

{q) Pearee v. JSfewlyn, 3 Kadd. (<) Monro v. Tayhr, 8 Hare, 51 ; 

186 ; but see Bugden y. Bignold, Dart, V. & P. 175. 

2 T. & G. Oh. 377, 88 to court- (t) CrotH v. Zatorence, 9 Hare, 

rolls not being constructiTe notice 462. 



76 THE LAW OF CX)PYH0LD8. 

dence as to identity, if the descriptions in the abstracted 
deed should differ among themselves so as to be repugnant 
to each other, or if the deeds contain no evidence at all as 
to the identity. " A condition that the purchaser is not 
to require any further proof of identity than is furnished 
by the deeds themselves, is insufficient in the absence of 
proof of identity as to the whole or a part of the property ; 
it is in effect a contract that the deeds shall show iden- 
tity, and if they do not, a good title is not made" (w) ; and 
the usual condition relieving the vendor from proof of 
identity will not of itself, it appears, deprive the purchaser 
of his right to have the boundaries of the tenures distin- 
guished in the case of intermixed lands (x). In the absence 
of stipulation it is a general rule that the vendor must 
identify the property sold with that described in the ab- 
stract ; but in the case of copyholds " he is not bound to 
show how the description on the court-rolls is to be applied 
to the present state of the property, if he can prove that it 
has actually been held under that description for sixty 
years" (y). In the absence of special conditions, the 
vendor will have to pay the costs of all matters essential to 
the validity of the conveyance, including the expense of 
all proceedings which may become necessary by the death 
of any of the conveying parties ; and the purchaser will 
only be obliged to pay the expenses of his own admittance, 
and the fees of the steward upon the surrender (2). An 
agreement by the vendor to pay the expenses of the 
admittance, or to surrender and assure the property at his 
own cost, will not extend to the payment of the fine on 
admittance, because the title is perfected by the admittance, 
and the fine is not due until afterwards (a). When it 
appears on the title that a surrender or admittance has 

(m) Dart, V. & P. 176. See G. 53. 
Curling y. Austin, 2 Dr. & Sm. 129 ; (y) Zon^ v. Collier, 4 Rnas. 267. 

Flower y. Hartopp, 6 Beav. 476. {z) Paramore v. Oreenelade, 1 Sm. 

(a?) Dart, V. & P. 176; and see & G. 641. 
Dawion ▼. Brinekman, 3 Mao. & (a) Graham y. Sime, 1 East, 632. 



CONVEYANCES OF COPYHOLDS. 77 

"been made by attorney, there should be a stiptdatioii that 
the entry on the oourt-rolls shall be sufficient evidence of 
the validity of the power of attorney, otherwise the power 
would have to be produced, and evidence given of the 
principal having been alive at the time of its being acted 
upon, unless it has been made, or rendered irrevocable, in ■ 
accordance with the provisions of the Conveyancing Act, 
1882 {b)y and has been deposited as directed by sect. 48 of 
the Conveyancing and Law of Property Act, 1881 . Where 
the title depends upon a grant of the waste, as a new copy- 
hold made before the Copyhold Act, 1887 under a 
special custom, it should be stipulated that no evidence 
shall be required of the existence of the custom, or of the 
consent of the homage having been given (c). The vendor 
must covenant to produce the copies of court-roll over 
which he has power, or which are in his possession, and 
must hand them over upon completion of the purchase if 
they relate only to the property sold, however ancient they 
may be. In the absence of stipulation the vendor is 
bound to produce the original of all documents and other 
instruments necessary to verify the abstract of his title, 
but as regards copyholds he is only bound to produce the 
copies of the court-rolls which he has in his power or pos- 
session. If the vendor has not any copies, the purchaser 
is not entitled to a covenant for production, for he may at 
any time resort to the court rolls and make use of them {d ) ; 
but where the original copies are not produced, a good 
reason must be given for the omission {e) . An enquiry may 
be made upon the purchase whether the vendor's solicitor 
or the steward know of any manorial custom or matter of 
tenure which might affect the validity of the proposed 
conveyance (/). 
A purchaser is not bound to accept land of a different Spedfio 

^ ^ perfonuanoe. 

(3) Sects. 8, 9. Gh. Div. 600. 

{c) Dart, V. & P. 189, 190. (e) Dart, V. & P. 169. 

{d) Cboper Y, £meiy, iThm, ZQS ; (/) But aee In r$ Ford and MiU, 

and see In re Asi^' Gardner, 26 10 Oh. Div. 366. 



78 THE LAW OF COPYHOLDS. 

tenxire to that wluoh he contracted for, because the differ- 
ence extends to the whole estate, and is therefore not a 
proper matter for compensation (g). He cannot, therefore, 
except by special conditions, be compelled to take copyhold 
instead of freehold (A), or an estate partly freehold when 
he has contracted to purchase a copyhold (e), or enfran- 
chised copyholds, with an exception of minerals or timber, 
. instead of freehold (A). But where an estate was repre- 
sented to be equal to freehold, it was held that the 
vendor ought to complete, although it turned out to be 
altogether freehold, in the absence of a stipulation that the 
contract should faQ if any part were not of copyhold 
tenure (/). An objection to a difference of tenure will 
give the purchaser a right to compensation if from the 
circumstances of the contract he should be compelled to 
complete {m). Objections of this kind will be held to be 
waived if the purchaser, after discovering the facts, should 
proceed with the treaty for purchase (»). On a sale of 
copyholds it is not necessary to state the peculiar customs 
of the manor, or to mention that the lands are subject to 
the payment of heriots, reliefs, and the like ; but it is ex- 
pedient to mention at least the fines, as the value of the 
property depends a good deal on the fact whether the fines 
are arbitrary or not. On the sale of freeholds subject to 
heriots, which are expressly stated to be held of a manor, 
the heriots, &c., need not be mentioned, but would be 
matter for compensation. But in all cases it is better to 
mention liabilities of this kind(o). 
Dayne In the extensive district comprised in the manor of 

Taunton Deane in Somersetshire there is a peculiar con- 
veyance known as a Dayne Surrender, which is used when 

iff) Drewe v. Cbrp, 9 Ves. jun. (/) Twining ▼. Jfomft?, 2 Bro. 

368 ; Wright y. Soward, 1 S. & S. C. C. 326, 331 ; and see DanieU ▼. 

190. Davison, 16 Yes. jun. 249. 

(A) Friee v. Macatdag, 2 De G. (m) Fordgce ▼. Ford, 4 Bro. C. 0. 

M. & a. 339. 495. 

(t) AyUt Y. CoXy 16 Beay. 23. (n) Calcraft y. Foehuek, 1 Yes. 

(k) UpperUm y, NiehoUtm, L. B. jun. 221. 

6 Ch. 436. (o) Dart, Y. & P. 132. 



CONVEYANCES OF COPYHOLDS. 79 

a oopyholder alienes his tenement but desires to retain a 

part for his own life. The purchaser is admitted to the 

whole of the land, whioh is called the Dayne Tenement, 

and pays a fine of one-third of the amount of an ordinary 

admittance-fine, and further makes himself responsible for 

the heriot to be paid on the death of the tenant for life. 

On the death of the surrenderor the whole land belongs to 

the Dayne tenant (p). And by a somewhat similar custom "Excepted 

in the manor of Tetminster in Dorset the oopyholder for *^®^®^**- 

life, with power of nominating the successor, may surrender 

to the use of another " excepting " a portion to himself ; 

the surrenderee becomes, tenant of the whole, but the 

original tenant remains in possession of the '^excepted 

tenement,'' and his widow will have it for freebench(^). 

The mortgage of a copyhold is effected by a covenant to Mortgage, 
surrender upon condition, the covenants for title being 
contained in the same deed, followed by a conditional 
surrender ; the surrender is conditioned to be void on pay- 
ment of principal and interest at a specified date. If the 
surrenderor neglects or refuses to make the conditional 
surrender for twenty-eight days after the mortgagee has 
demanded it, and has tendered to him the engrossment for 
his signature, the Court will, on the petition of the mort- 
gagee, make a vesting order under section 2 of the Trustee 
Extension Act, 1852 (r), and will treat the mortgagor as a 
trustee refusing to convey («). The condition of the sur- 
render is considered to be fulfilled by a payment at any 
time before sale or foreclosure. The admittance is usually 
postponed, to save the fine, until some default in payment 
r^rehended, the mortgagor remaining tenantf a^ on 
the fulfilment of the condition being in of his old estate (t). 

{p) Shillibeere, Customs of Taun- (r) 16 & 16 Viet. o. 55. 

ton Deane, 32. (t) Re Orow^% Mortgage^ L. B. 

(q) For the customs of Tetminster 1 3 Eq. 26. 

Prima, see Appendix, poH, and {t) Simonda y. Laumd, Cro. Eliz. 

J^etenith y. Baines, Ch. Pr. 3, as to 239 ; Doe d. Shewen r. Wraot, 6 

a «oop7 of exception" supplied East, 132. 
by Court of Equity. 



i 



80 THE LAW OF COPYHOLDS. 

But if the mortgagee shall have been admitted, the mort- 
gagor will require a new admittanoe ; and such admittance 
wiU confer a new estate on the mortgagor, and the descent 
will be altered, so that if the lands have descended to the 
mortgagor ex parte matenid they will afterwards descend 
as if he had acquired them by purchase (w). Unless there 
is a special custom within the manor the lord cannot compel 
the mortgagee to take admittance ; but it is said that there 
may be such a custom, and that such a custom would be 
upheld, and that the Court will not grant relief against it {x) . 
Where the mortgage is of a renewable copyhold for lives, 
the deed of covenant should contain a provision for pro- 
curing the proper renewals (y). The money should not be 
paid imtil the surrender is made, to prevent a second 
mortgagee without notice obtaining priority by enrolment. 
When it is inconvenient to make the surrender at once, 
the mortgagee should have a power of attorney for himself 
or his agent to surrender for the mortgagor (s). A second 
mortgage should be enrolled as soon as practicable, to give 
notice to subsequent incumbrancers. The transfer of a 
copyhold mortgage may be made in several ways, as by a 
fresh conditional surrender on the part of the mortgagor, 
or after the admittance of the mortgagee by his surrender. 
The equitable interest under a covenant to surrender is 
transferred by a deed of assignment (a). 
Remedies of a Jt has already been seen that a surrenderee cannot bring 
an action to recover the land until he has been admitted, 
but that his admittance relates back to the date of the sur- 
render (J). When admitted, he may recover the mesne 
profits from the date of the surrender (c). A mortgagee of 
copyholds may, however, commence an action of foreclosure 

(u) Doe d. Harmon v. Morgan^ 7 toL ii. pt. 2, p. 117. 

T. R. 103. («) Ibid. p. 113. 

{z) Baspool V. Long, Oro. Eliz. (a) Ibid, pp. 793, 794. 

879 ; KinffY, Diliiston, 1 Salk. 386 ; (b) Ante, p. 63. 

Tredway v. Fotherley, 2 Vem. 367. (e) Roe d. Jeffereyt v. Sicke^ 2 

(y) Dav. ConT. Preo. 4th ed. Wila. 13, 16. 



V 



CONVEYANCES OF COPYHOLDS. 81 

before adinittaiice(t9Q. Where the mortgage is made by 
deed executed after the 31st of December, 1881, the mort- 
gagee has, by virtue of the Conveyancing and Law of Pro- 
I>erty Act, 1881, a power of sale, unless there is a provision 
to the contrary ,* and when exercising such power of sale, 
he is entitled to convey the property by deed for such 
estate and interest as is the subject of the mortgage ; but 
the Act provides that in the case of copyhold or customary 
land the legal right to admittance is not to pass by such 
deed of conveyance, unless the deed is sufficient otherwise 
by law or by custom for the purpose (e). In the absence 
of a special custom, the lord is not bound to receive a con- 
ditional surrender to such uses as the mortgagee may 
appoint and in default of appointment to the use of him 
and his heirs (/) ; but if the lord accepts such a surrender, 
he cannot afterwards refuse to act on it(^), and a pur- 
chaser from the mortgagee would take as his appointee, 
and would claim admittance upon the conditional surrender, 
and thus save the payment of two fines. 

After payment of the moneys secured, the mortgage is Discharge of 
regarded as a revoked surrender ; and if, during the con- ™^ ^^®* 
tinuance of the security, a sale has been effected, the 
purchaser's estate is treated as having been made absolute 
by the discharge of the security ; but it is perhaps safer 
for the purchaser, to take a release from the mortgagee. 
The mode of reconveying the copyholds on the mortgage 
being paid oS depends on the estate which the mortgagee 
has acquired. If he has been admitted on the surrender, 
he must re-surrender, but if no admittance has been taken, 
upon the payment the steward receives from the mortgagee 
or his personal representatives an acknowledgment called 
a warrant of satisfactioii, a minute of which is entered on 
the court roll ; the conditional surrender is thereby vacated, 

(rf) Sutton Y. Stone, 2 Atk, 101. (/) FlaekY, Douming ColLy Cambr, 

[e) 44 & 46 Vict. o. 41, 88. 19— (MasUr, ^, of), 13 0. B. 945. 
21. (s) Eddleiton t. Collim, 3 De Qc. 

M. & a. 1. 

E. O 



82 



THE LAW OF COPYHOLDS. 



Equitable 
mortgage. 



Deyises. 



but the mortgagee should give a release with a oovenant 
that he has not incumbered. If, again, the mortgage has 
rested merely on a covenant to surrender, a deed of release 
by the mortgagee, containing a covenant that he has not 
incumbered, will be sufficient to discharge the mortgage {h). 

An equitable mortgage of copyholds is made by deposit 
of the copies of court-roll and other mimiments of title (t), 
the mortgagor agreeing to make a conditional surrender 
if required. As an equitable mortgage may be created by 
the mere deposit of the copy, it is not sufficient for the 
protection of a purchaser or mortgagee to search the rolls 
for incumbrances. " The vendor or mortgagor should be 
required to furnish an abstract of title and his copy of 
admission ; and if the latter document is not forthcoming, 
its absence must be reasonably accounted for "(A). The 
same rules apply to equitable mortgages of freeholds and 
of copyholds, so far as the differences of tenure will 
permit. 

Ajb copyhold tenants were not within the provisions of 
the Statutes of Wills, passed in the reign of Henry VIII. (/), 
which gave the power of devising lands to such persons 
only as held by soca^re tenure and had an estate of in- 
heritaiioe in L 4>le. copyholds were formerly not 
deviseable in the sense of passing under a will, in the 
legal sense of the term. But by the customs of most 
manors a copyholder was formerly able to devise his lands 
by means of a surrender into the hands of the lord to such 
uses as he should by his last will limit or appoint, the will 
being afterwards made and declaring the uses of the sur- 
render. But there were manors, e.g., Houghton and 
Easington in Durham (m), in which no such custom existed ; 



(A) Day. F^reo. Cony. 4th ed. 
yol. ii. pt. 2, p. 819. 

(»^ JSxparU JTamerf 19 Ves. jun. 
202 ; Ti/lee y. JFebb, 6 Beay. 662 ; 
Fiyce y. Sury, 2 Dr. 11. 



{k) WhUbrMd y. Jwdan, 1 Y. k 
G. Ex. 303. 

(t) 32 Hen. Vm. o. 1, explained 
bj 84 & 36 Hen. Yin. o. 6. 

(m) See NichoUm y. NtehoUony 1 
Tarn. 319. 



COSVEYAKCBS OP COPYHOLDS. 



83 



and there the tenements were formerly not deviseable 
at all, exoept as regards the equitable estate. In some of 
these manors, e,g,j in the manors above mentioned, and in 
Botchardgate in Cumberland (n), it was usual to surrender 
to the use of a trustee upon trust to convey to the devisees, 
or to make a mortgage for a trifling amount, so that the 
devisee of the equity of redemption might redeem and so 
get the legal estate ; elsewhere, as in the manor of Taunton 
Deane in Somerset, there was a custom of making '^ dor- 
mant suirenders," by which the lands were surrendered to 
a trustee on condition of carrying out the tenant's will, the 
surrender being revocable, and only valid for a period of 
seven years (o). By the special customs of some other 
manors the copyholds could only be devised for a limited 
period ; as in the manor of Barton-upon-Humber, where 
the copyhold tenements were deviseable for eighty years 
without any surrender to the use of the will {p) ; while 
under other local customs the tenants could devise m the 
same way as freeholders {q). 
Notwithstanding the surrender to the use of the will, Effect of but- 

r^DQOir to 11B0 

the estate remained in the copyholder, and might afterwards of will. 
be surrendered by him to the use of a purchaser, or other- 
wise without a revocation of the first surrender (r). On 
the death of a copyholder after he had surrendered to the 
use of his will, the estate descended to his heir subject to 
the right of the devisees to be admitted («). Further, a 
surrender to the use of a will only operated on the estate 



(i») See Nanton t. Bmmety L. B. tenancy. 



7 Eq. 250. 

(0) See Sbillibeer, Gustoma of 
Taunton Deane, 86, and Rex t. 
Souihtcood, 6 Han. & Byl. 414, for 
a definition of a donnant snirender, 
and Gale y. OaU, 2 Cox, Gh. Cas. 
186, and JPartman y. Seymour, 9 
Mod. 280, as to the effect of a dor- 
mant forrender in serering a joint 



(.p) Scriy. Copyh. 213. 

\q) See Wrot*8 Case, Easter 35 
Eliz. Com. Banc. Boll. 334, cited 
litt. Bep. 26. 

(r) FiUh V. Eoekley, Cro. Eliz. 
442 ; Thruatout d. Oower y. Gunning^ 
ham, 2 W. Bl. 1046; Oewrge d« 
Thombury y. Jew, Amb. 627. 

(s) Hex y. Wiletm, 10 B. k 0. 80. 



g2 



84 THE LAW OF COPYHOLDS. 

which the copyholder then had, and accordingly did not 
pass lands subsequently acquired by him {t). 

By the Act 65 Geo. 111. c. 192, now repealed, the 
necessity for a formal surrender to the use of a will was 
removed, and it was provided that in all cases where a 
copyholder might by will dispose of or appoint his tenement 
in pursuance of a surrender, every disposition or charge 
made by his will of any interest in the land should be as 
valid without the previous surrender as with it (w). That 
Act substituted '^ what has been well called an ideal sur- 
render " (x) for an actual surrender, but it supplied only 
surrenders which were mere matters of form, so that the 
will of a married woman was not vaUd without her previous 
surrender made after separate examination and with her 
husband's assent (^) ; and so also, as a joint tenancy of a 
legal estate in copyholds could only be severed by surren- 
der, a joint tenant could not devise and thereby sever the 
tenancy unless he had previously surrendered to the use of 
his will (2). In these cases, therefore, surrender to the uses 
of a will was still required. 
T^ewnis But the Wills Act, 1837 (a) has repealed the Act of 

55 Geo. III. and substituted new provisions. It pro- 
vides that all ''real estate of the nature of customary 
freehold or tenant-right, or customary or copyhold," may 
be devised, notwithstanding that the testator may not 
have surrendered the same to the use of his will, or that, 
being entitled as heir, devisee, or otherwise to be admitted, 
he shall not have been admitted thereto, or that the same 
could not have been devised by reason of the want of a 
custom to devise or surrender to the use of a will or 
otherwise, or that there was a custom that a will or sur- 

(t) J>os d. Ibbot Y. Cowlitig, 6 T. p. 447. 
B. 63 ; Doe d. Blaeksell y. Tomkina, (y) Doe d. Nethereote r. Sartle, 5 

11 East, 185. B. & Aid. 492. 

(ti) Sect. 1. («) Co. litt. 69 b; TorUr v. 

{x) Per Cockbiim, 0. J., in Oar' Forter, Cro. Jac. 100. 
land y. Mead, L. R. 6 Q. B. 441, at (a) 1 Vict. o. 26. 



CONVEYANCES OF COPYHOLDS. 85 

render to the use of a will shotdd continue in force for a 
certain time only, or any other custom preventing the free 
disposition by will. The power of devising is extended to 
estates pur autre tne in copyholds, whether or not there is 
a special occupant ; and also to contingent, executory, and 
other future interests, to which the testator may be in any 
way entitled, and to all rights of entry for condition broken 
and other rights of entry, and estates to which the testator 
is entitled at the time of his death, notwithstanding that 
he became entitled to them after the execution of his 
will {b). 

It is further provided that where the custom would Fines, &c., 
have authorised a surrender to the use of a will, and the S^^^ ^ 
testator shall not have made a surrender, the devisee shall copylioldfl. 
not be admitted except on payment of all stamp duties, 
fees, and sums of money which would have been due in 
respect of the surrender, and its presentment (now un- 
necessary), registration, and enrolment ; and that, where the 
testator might have been admitted and have thereupon 
surrendered to the use of his will, the devisee shall not be 
•admitted under the will without paying the stamp duties, 
fees, fine, and sums of money which the testator would 
have had to pay on such admittance, as well as the pay- 
ments above mentioned due in respect of the omitted 
surrender, besides the payments due on the devisee's own 
admittance (c). 

The Act further provides that when any copyhold is Enrolment of 
devised, the lord, steward, or deputy is to enter the will r^ua, 
on the court-rolls, or so much of it as contains the dispo- 
sition of the copyhold : and it is sufficient to state in the 
entry that the copyhold is subject to the trusts declared by 
the will, without entering the trusts ; but where the copy- 
hold could not have been devised except for the Act, the 
devisee is to pay the same fine, heriot, dues, duties, and 

(3) Seot. 3. See Appendix, post. {e) Sect. 4. See Appendix, pott. 



86 



THE LAW OF CX)PYHOLDS. 



Estates ^r 
autre vi«. 



Deyisesby 
infants. 



Devise by 

married 

woman. 



servioes as would have been due from the customary heir 
in ease of a descent {d). 

With respect to estates jwr autre vie, the Act provides (e) 
that in case tiiere is no special occupant of an estate pur 
autre vie oi a, copyhold it shall go to the executor or ad- 
ministrator of tiie person who had the estate by virtue of 
the grant, and if the estate comes to the hands of the per- 
sonal" representatives, either as special occupants or by 
virtue of the Act, it is to be assets in his hands and dis- 
tributed as personal estate. 

Wills made by infants, which were formerly valid as to 
oopyholds in certain cases, are mcuie illegal by the provi- 
sion that no will mcule by a person under the age of 
twenty-one years is; to be valid (/). 

As to wills by married women, the Act provided (g) that 
no win mcule by any married woman was to be valid unless 
it was such as would have been valid before the passing of 
the Act. Accordingly, under the provisions of the Wills 
Act, 1837, there might still have been occasions, in the 
case of a married woman, for the supplying or the enlarge- 
ment of an omitted or defective surrender in aid of ora- 
tors, children, or purchasers for value ; but such questions 
are not likely now to arise, for the Married Women's 
Property Act, 1882, provides that every woman who was 
married after the 3Ist of December, 1882, may dispose by 
will of all real property belonging to her at the time of 
her marriage, or afterwards acquired by or devolving on 
her as her separate property in the same manner as if she 
were B.fetne sole (A), and that every woman who was married 
before the 1st of Januaay, 1883, shall have similar powers 
of disposal, by will, of all real property, her title to which, 
whether vested or contingent, and whether in possession, 
reversion, or remainder, accrued after that date (i). 



{d) Sect. 5. See Appendix, j7M^. 
(«) Seot. 6. 
(/) Sect. 7. 



(j) Sect. 8. 

(A) 46 & 46 Vict. 0. 76, s. 2. 

(t) Ibid, 8. 6. 



CONVEYAyCES OF COPYHOLDS. 87 

The Wills Act, 1837 further provides that a general General 
devise by a testator of his lands, or his lands in a certain fa^Jarincludca 
place, is to include his copyholds as well as his freeholds copyholds. 
as far as the general description extends, unless a contrary 
intention appears by the will {k) ; and that where a testator 
devises to a person without any words of limitation, the 
devise is to be construed as passing the whole estate or 
interest which the testator had power to dispose 'of by 
will(0. 

The efPect of the Act, and especially of sect. 3, is to Effect of the 
enable a copyholder to devise his estate and interest in the °'* 

land in every case without the necessity of a surrender to 
the use of his will, whether there was a custom in the 
manor to surrender for such purpose or not. The Act 
substituted an ordinary devise for the more cumbrous pro- 
ceedings of the old law, but it is apparent that it was 
not intended to affect the relations of lord and tenant any 
more than by supplying a surrender to the use of the will. 
Under the old law a devise after a surrender conveyed no 
title or property to the devisee till he had been admitted ; 
in the Wills Act " there is no intention that the devise 
should have a greater effect without the surrender than it 
had before the statute with the surrender : the devise simply 
passes the right to be cuimitted ; and whereas a surrender 
and devise formerly had that effect, now the copyholder 
may make a will and devise this right directly " {m). 
When a testator disposes of his copyhold by his will he 
does not do more than name the person who should be 
admitted into the tenemcy. The will has not the effect of 
oonveyiDg the estate to the devisee before admittance ; the 
devisee may claim admission, but if he does not the heir 
is entitled to be admitted because of the immediate legal 
estate which descends to him on the death of the testator ; 
and the rule as to the right of the heir to admittance is the 

{k) 1 Vict. c. 26, B. 26. (m) iVr Blackburn, J., in OarUmd 

(/) Ibid, 8. 28. V. Mead, L. R. 6 Q. B. 441, at 

p. 449. 



88 THE LAW OF COPYHOLDS. 

same where the testator gives, by his will, a power of sale 
to trustees without any estate in the lands, for there tiie 
estate and the right to admittanoe descend to the heir until 
the power is executed and the purchaser is admitted (n). 
'^ All that the lord can insist on is that he shall never be 
without either a tenant or the possession of the land, and 
this is effectually secured to him by his right of seizing 
qtwtisqtie upon the death of the tenant, unless the heir, or 
some one claiming under the testator's will, comes in and 
is admitted "(o). 

Questions have arisen whether the lord is boimd to admit 
the heir when a will devising the copyhold to a stranger is 
brought to his notice. In Garland v. Mead{p\ Cock- 
bum, C. J., though holding that the lord could not seize 
quousque for want of a tenant when the devisees under a 
will refused to take admittance but tendered the infant 
heir, said that it was a very different question whether 
the lord is bound as a matter of duty to admit the heir 
when a regularly executed will is brought to his notice, 
and it is clear that the devisees are entitled and ought to 
be admitted, and whether, in the event of the lord's refusing 
to admit, the heir could compel him by mandamus ; but 
he expressed no opinion on the point. In an earlier stage 
of the same ca8e(^), the Court of Queen's Bench refused 
a mandamus to compel the lord to admit the heir on the 
grounds that it was a matter of discretion, and that the 
effect of granting the writ would be to enable the trustees 
to avoid payment of a double fine and to commit a breach 
of trust by not acquiring for themselves the legal estate ; 
but in the later case of Regina v. Dudley {r)y a Divisional 

(») Holder d. Sulyard t. Preston, & G. 658, at p. 663. 

2 Wilfl. 400 ; JRex v. JTihoHy 10 B. {p) L. R. 6 Q. B. 441. 

& G. 80 ; Glass v. Richardson, 2 De (q) Beported as Meg, y. Garland, 

G. H. & G. 658 ; Garland v. Mead^ L. R. 6 Q. B. 269. 

L. K. 6 Q. B. 441. (r) Unreported. Decided in Q. 

(o) Fer Lord Granworth, L. J., B. Diy. June, 1884. 
in Glass y. Riehardson, 2 De G. M. 



CONVEYANCES OF COPYHOLDS. 8D 

Court of the Queen's Bench ordered the admission of a 
person claiming as heir, though there was a regularly 
executed will under which the estate was given to trustees 
in trust for the same heir for life, subject to defeasance in 
certain events, with remainders over. It seems clear also 
that the fact that the lord will he deprived of his fine, or 
at least of a portion of it, does not affect the question as 
to the right of the heir to be admitted notwithstanding 
the devise, for in Rex v. Wihon[8) it was held that the 
heir was entitled to a mandamus against the lord whether 
the object of the devisees in presenting him for admittance 
was made in furtherance of a scheme to defeat the lord's 
fine or not. If, however, the devisees desire to take ad- 
mittance themselves as against the heir, they are entitled 
to compel the lord to admit them, even although he may 
have already admitted the heir or other adverse claimant {t) ; 
for, as has been already mentioned, '^ an culmittance to a 
copyhold does not in itself constitute a possession ; it only 
gives the party the means of possession ii he have a good 
title to it" (m). 

In order to save the expense of a double culmittance, it Power of 
is usual to give to trustees for the sale of copyholds a ■ ^ * 
power of appointment to purchasers, instead of making a 
direct devise to the trustees (a:). The purchaser alone will 
require to be admitted, and a single fine will be due {y) ; 
and much expense will be saved if the sale can be mcuie 
before the lord is entitled to seize quomque for want of a 
tenant. If the sale cannot be effected before the three 
courts have been held, or the customary period for the 
vacancy of the tenement has expired, it may save expense 
in many cases to tender the heir for admittance. 

(») 10 B. & 0. 80. (x) Bolder d. Sulyard ▼. Preston, 

(V) JZftT T. Hexham Manor {Lord 2 Wile. 400 ; Rex y. Oundle Manor 

of), 6 A. & E. 569. {Lord of), 1 A. & E. 283 ; OUua y. 

(u) P^LordEllenboTongh, G. J., Sichardton, 2 De G. M. & G. 668. 

in Zimeh d. Foree t. Foru, 7 East, (y) Sej^, v. JFihon, 3 B. & S. 201. 

186, 192. 



90 



THE lAW OP COPYHOLDS. 



FroTiaional 
admittance. 



What estates 
in copjbolds 
deviseable. ' 



In some places there is a custom of taking ^^ admittanoe 
quomque^^^ as in the manor of Thorpe Hall, in Suffolk. 
In a case relating to this manor (s) it was found to be the 
custom, when a will contains a power of sale, for the heir 
or some other person to be admitted proyisionallj, for the 
purpose of preventing a seizure. In the case in question 
it was held that the person admitted quomqtie took an 
estate for his life to hold for the intents and purposes, and 
subject to the powers and declarations and trusts, contained 
in the wiU. On the execution of the power by the cus- 
tomary conveyance to a purchaser, which was enrolled, the 
purchaser became entitled to admission; but if the pur- 
chaser should be the same person as the provisional tenant, 
another cuimittance-fine would be due, as in every case 
where a tenant acquires a new interest in the tenement. 
The custom was also worthy of attention as requiring the 
lord to take notice of trusts, which is very unusual, as has 
been already noticed. 

As to the property which may be devised,' it will be 
observed that sect. 3 of the Act of 1837 extends the power 
of devising to estates pur autre vie in copyholds whether 
there is a special occupant or not, to contingent, executory, 
and other future interests to which the testator may be in 
any way entitled, and also to all estates and interests to 
which the testator is entitled at the time of his death, not- 
withstanding that he became entitled to the same subse- 
quently to the execution of his will. With regard to 
equitable estates and interests in copyholds, the rule before 
the Act of 1837 seems to have been that where the testator 
had a purely equitable estate or interest in the copyhold, 
as, for example, the interest of a surrenderee for value who 
died before admittance, and not merely an imperfect and 
inchoate legal title, such equitable estate might have been 
devised without the necessity of a surrender, but where the 
testator hcul merely an incomplete legal title, as for ex- 



(z) Reg, y. Corhett, 1 E. & B. 836. 



CONVEYANCES OF COPYHOLDS. 91 

ample, the interest of an nnadmitted devisee, such estate 
could not have heen devised (a) ; but sinoe the passing of 
the Wills Act this distinction has ceased, the Act haviog 
expressly given such a power of devising to unadmitted 
devisees and surrenderees (b). 

The Wills Act expressly provides, as has been mentioned. General 
that a devise of the testator's land in general terms wiU ®^"®' 
carry his copyhold land as well as his freehold, unless a 
contrary intention appears in the will (c) . A devise of a 
manor wiU oany aU land which, although originaUy copy- 
hold, has after the devise and before the testator's death 
ceased to be copyhold through surrender to the lord's own 
use(^). 

If devisees upon trust at once discMm effectually. Disclaimer 
nothing will pass to them, and the heir must be ad- ^ «v*8««"- 
mitted {e). Disclaimer should be by deed (/), but may 
be ma4e by p^ux)l, or shown by conduct unequivocally 
opposed to acceptance of the trust ; but it must be made 
before the exercise of any act of ownership over the estate, 
for '^ a disclaimer to be worth anything must be an act 
whereby one entitled to an estate immediately and before 
dealing with it renounces it" {g). Where several trustees 
are appointed, it is better in all cases that all of them 
except one should disclaim, as if no disclaimer is made in 
time the lord may treat them all as tenants, and seize 
untU they pay the fines. Thus, in Bence v. Gilpin (A) it 
was held that a disclaimer and a release by two out of 
three joint tenants who were surrenderees of certain copy- 
holds, which had been executed before the admittance of 
the third joint tenant, but after all the three had executed 

(a) Davie$y. Bevenham, 2 Freem. (^ Hicks y. SaUitt, 3 De G. M. & 
167 ; Wainewright v. ElweU, 1 Madd. Qt. 782. 

627; Waik. Gopjh. i. 125; King {e) Rex^, Wilson^ lOB.&O. 80. 

T. TWfwr, 1 Myl. & K. 466 ; Sea- (/) Staeey v. Elph, 1 Myl. & K. 

man ▼. Woods, 24 Beav. 372. 196. 

(b) Sects. 3, 4. See Appendix. [g) Per Kellj, 0. B., in Benee y. 
\e) Sect. 26. Gilpin^ L. B. 3 Ex. 76, at p. 81. 

(h) L. B. 8 Ex. 76. 



92 THE LAW OF COPYHOLDS. 

various acts of ownership over the estate, was void, and 
that the lord was entitled to a fine as upon the admittance 
of all three. If, however, one of the joint tenants offers 
to he admitted, the lord has no right to refuse him for the 
purpose of compelling the rest to come in (»'). In Wellesley 
V. Withers {k) four persons were entitled under a will as 
devisees and executors to real estate, including copyholds, 
and personalty. Three of them took out prohate and 
assumed the character of executors ; hut as to the copy- 
holds, two of the three renounced them from the time of 
the death of the testator. They did no act to show that 
they had taken the copyhold estate, and in due time 
executed a disclaimer. It was contended that, having 
assumed th^ office of executors, they had no right to 
disclaim. But it was held that they might act as regards 
the personalty and renounce the real estate, and that they 
were not bound by the act of the devisee who had accepted, 
and were not liable to pay a fine. The instrument of 
disclaimer was a release which was improper if they had 
taken no estate, as joint tenants in copyholds cannot 
properly release imtil they have been admitted, there 
being no estate on which the release can operate ; but the 
Court held the instrument to be equivalent under the 
circumstances to a deed of disclaimer. 
When copy- In certain circumstances, as already mentioned, a oopy- 
ferabie by hold may be transferred by deed, either under the pro- 
deed, visions of an Act of Pcffliament, or when the lord, by 
severing the copyhold from the manor, has put it out of 
the tenant's power to alienate by the customary method. 

The subject of statutory conveyances is considered in the 
next chapter ; but in regard to the other cases in which an 
ordinary deed may be used by a copyholder to transfer his 
estate, it is to be noticed that when a copyhold is severed 
from a manor the customary mode of alienation becomes 

(t) Seg. ▼. WamUad Manor {Lord (k) 4 E. & B. 750. 

q^), 23 L. J. N. S. Q. B. 67. 



CONVEYANCES OF COPYHOLDS. 93 

inlpossible, and the copyhold tenant is then entitled to resort 
to an ordinary common law conveyance, or his power of 
alienation would be lost altogether (/). Again, as a cus- Equitable 
ternary surrender can only be made of a legal estate ^ ** 
(except in the case of an equitable tenant in tail, and a wife 
releasing her claim of freebench), there are many other 
occasions on which interests in a copyhold will pass by an 
ordinary conveyance. Thus equitable interests in cus- 
tomary estates pass by assignment or bargain and sale 
without enrolment, the former being the more usual and 
the proper mode of conveyance. 

Hie equitable interest of a married woman was formerly Estate of 
disposed of by an ordinary deed acknowledged. By 3 & 4 ™o^n y^^^ 
Will. IV. c. 74, s. 77, it was provided that a married conveyed, 
woman in every case — except that of her being tenant in 
tail, for which separate provision was made, as already 
noticed (/w) — might dispose by deed of lands of any tenure, 
or money to be invested in land, and also might dispose of, 
surrender, release, or extinguish any estate which she 
alone, or she and her husband in her right, might have in 
any such lands or money, and release or extinguish any 
power, as if she were unmarried, but her husband had to 
concur, and the deed had to be duly acknowledged ; but 
there was a proviso that the Act should not extend to 
lands held by copy of court-roll of or to which she, or she 
and her husband in her right, might be seised or entitled 
for an estate at law, in any case in which any of these 
objects could before the Act have been effected by her, in 
concurrence with her husband, by a surrender. This pro- 
vision applied to cases where a married woman wished to 
release her claim to freebench to an intending purchaser (n), 
and where a married woman had a power coupled with an 
interest. But now, by virtue of the Married Women's 
Property Act, 1882, a woman married after the 31st of 

(/) J^ilUpi T. Ball, 6 0. B. N. S. (m) AnU, p. 31. 

811. («) TTood V. Zambirth, 1 PhilL 8. 



94 



THB LAW OF COPYHOLDS. 



Continent 
ioteresta. 



Lease. 



Deoember, 1882, may difipose of all the real property 
which belongs to her at the time of her marriage, or after- 
wards devolves on or is acquired by her as her separate 
property, in the same manner as if she were a feme sole (o), 
and a woman who was married before the 1st of January, 
1883, has similar powers of disposing of all her real pro- 
perty, her title to which, whether vested or contingent, 
and whether in possession, reversion, or remamder, accrued 
after that date (p). 

Bights of entry, and contingent, future, or executory 
interests and possibilities, coupled with an interest in copy- 
hold estates, are also conveyed, assigned, and charged by 
deed (q), A deed of release is used to convey any rights 
in a copyhold to a person who has been admitted tenant. 
Thus, in Steele v. Walker (r), where a copyhold was de- 
vised to trustees who sold, and the purchaser was cuimitted 
upon surrender by the heir, it was held that to make a 
good title the purchaser was entitled to have a release from 
the trustees of all their right and interest to be admitted. 
The release of a right to the person in possession, even 
under a wrongful admittance, is an extinguishment of the 
right («). One joint-tenant or coparcener may release to 
the other, " for the first admittance was of them and every 
of them, and the ability to release arose from the first 
admittance " (^), or at his option he may make a customary 
surrender to the other's use. A release will be pre- 
sumed after twenty years have passed during which the 
person claiming admittance might have asserted his 
right {u). 

It will be remembered, that a copyholder's lease is a 
common-law assurance, and should therefore be registered 



(o) 45 & 46 Ylct. 0. 75, s. 5. 
Ip) Ibid, 8. 2. 

(q) S&d Viot. 0. 106, 8. 6. 
(r) 28BeaT. 406. 



(«) Oo. Oopyh. 8. 36; Ztte r. 
QueinUm, 4 Bep. 26 a. 

{t) W^<wY.iV«y, Winch's Rep. 3. 

(m) See JDoe d. Milner ▼. Bright' 
wen, 10 East, 583, 591, 595. 



CONVEYANCES OP COPYHOLDS. 



95 



in cases where the land is situated in a district within the 
proyisions of any local Begistiy Acts and registration is 
requisite (x). 



(x) These Ac^ts are, for Middle- 
Bex, 7 Anne, c. 20 ; 25 & 26 Viet. 
0. 53, 8. 104 ; 64 & 55 Viot. o. 10 
and c. 64 ; for the Bedford Level, 
15 Car. H. c. 17 ; for lands within 
the North, £ast, and Weet Bidings 



of Yorkshire, indading the town 
or coontj of ElingBton-on-Hall, 
47 & 48 Vict. 0. 54 ; 48 Vict. c. 4 ; 
and 48 & 49 Vict. o. 26 ; and for 
the Duchy of Cornwall, 26 & 27 
Vict. 0. 49. 



96 



THE LAW OF COPYHOLDS. 



CHAPTER IV. 

CONVEYANCES OF COPYHOLDS (CONTINUED) 
STATUTORY CONVEYANCES. 



Statutory 
conveyanceB 



There are certain statutory methods of conveying copy- 
holds by which the necessity for a surrender, and even in 
some oases of an admittance, is altogether avoided. In 
Regitia v. The Lords of Weedon Beck Manor (a) a private 
Act of Parliament, which substituted certain new trustees 
for the trustees who had been appointed by a testator and 
had been admitted to the devised copyholds, was held 
sufficient to empower the substituted trustees to surrender 
to the use of a purchaser, although it conferred on them 
merely a power of sale without giving them any estate in 
the copyholds, and although they had not been admitted. 
Trustee Acts. Under the provisions of the Trustee Acts of 1850 and 
1852 {h)y a judge of the Chancery Division of the High 
Court of Justice {c) in all cases, and a county-court judge 
in cases where the trust estate or fund to which the action 
or matter relates does not exceed in amount or value the 
sum of 500/. (rf), may make an order vesting a copyhold 
in such persons in such manner and for such estate as the 
judge shall direct in the cases of trustees or mortgagees 
who are infants (e), or of a trustee who is out of the 
jurisdiction of the High Court, or who cannot be found (/), 
or in cases when it is uncertain which of several trustees 



(a) 13 Q. B. 808. See Grand 
Junction Canal Co, y. Limes, 15 
Sim. 402. 

(A) 13&UVict. C.60; 16 & 16 
Vict. c. 55. 

(c) See 36 & 37 Viot. c. 66, 



8. 34 (2). 

(rf) 61 & 62 Vict. c. 43, s. 67 (6). 

\e) 13 & 14 Vict. o. 60, a. 7 ; J« 
re FranklynU Mortgagees, W. N. 
(1888) 217. 

(/) 13 & 14 Viot. c. 60, B. 9. 



OONVBTANCES OF COPYHOLDS — STATUTORY CONVEYANCES. 

was the survivor (e), or whether the last surviving trustee 
is alive or dead (/), or when a trustee has died intestate 
without an heir or without an heir or devisee who is 
known (g), or when lands are subject to contingent rights 
in persons unborn (A), or where a trustee wilfully refuses or 
neglects to convey or release (i) . The judge has also power 
to make a similar vesting order when a mortgagee has died 
without entering into possession of the land mortgaged 
or into the receipt of the rents and profits thereof, and the 
money has been paid to a person entitled to receive it, or 
if such person consents to an order for the reconveyance 
of the lands in any of the foUowing cases : — 

(1) When the heir or devisee of such mortgagee is out 

of the jurisdiction, or cannot be found ; 

(2) When such heir or devisee shall, upon a demand by 

a person entitled to require a conveyance of such 
lands or a duly-authorised agent of such person, 
have stated in writing that he will not convey 
the land, or shall not convey the same for 
twenty-eight days after a proper conveyance has 
been tendered to him ; 
(8) When it is uncertain which of several devisees of 
such mortgagee was the survivor ; 

(4) When it is uncertain as to the survivor of several 

devisees of such mortgagee, or as to the heir of 
such mortgagee whether he is living or dead ; 

(5) When such mortgagee shall have died intestate 

and without an heir, or shall have died and it 
shall not be known who is his heir or devisee {k). 

The order in each case is to have the same effect as if 
the trustee, mortgagee, heir or devisee, as the case may 

{e) 18 & 14 Viot. 0. 60, b. 13. (t) 16 & 16 Viot. o. 66, s. 2 ; In 

(/) Ibid. 8. 14. r0 Orou^t Mortgage^ L. B. 13 Eq. 

{g) Ibid. 8. 16 ; In f Qodfrey'i 26 ; In r$ MiUi Trusts, 40 Oh. Dir. 

Trusts, 23 Ok. Div. 206. 14 (0. A.). 

(A) 13 & 14 Tiet. 0. 60, s. 16. {/c) 13 & 14 Yiot. o. 60, 8. 19. 

B« H 



97 



Testing order. 



98 THE LAW OP CX)PTHOLDS. 

be, had duly conveyed the lands in the manner appearing 
in such order. New trustees may also be appointed under 
the provisions of these Acts, and the estate may be vested 
by an order in the new and in the continuing trustees, and 
every such vesting order has the same effect as if the person 
or persons who before the order were the trustee or trustees, 
if any, had duly executed all proper conveyances and assign- 
ments in the manner appearing in the order (/). The 
judge may, in any case where he may make a vesting 
order, appoint a person to convey or assign the lands, or to 
release or dispose of any contingent right, and the con- 
veyance or release of such person, when in conformity with 
the terms of the order by which he is appointed, has the 
same effect as a vesting order would have in the particular 
circumstances of each case(m). 
BSeptoi ^ The 28th section of the Trustee Act, 1850, deals 

specially with the eflFect of an order vesting copyhold 
lands, or appomting a person to convey copyhold lands, 
and it enacts that when an order is made vesting any 
copyhold or customary lands in any person or persons, 
with the consent of the lord of the manor, then the 
lands shall, without any surrender or admittance in 
respect thereof, vest accordingly; and when an order 
is made appointing a person to convey such lands, ^4t 
shall be lawful for such person to do all acts and execute 
all instruments for the purpose of completing the assur- 
ance of such lands; and all such acts and instruments so 
done and executed shall have the same effect, and every 
lord and lady of a manor and every other person shall, 
subject to the customs of the manor and the usual pay- 
ments, be equally bound and compellable to make admit- 
tance to such lands, and to do all other acts for the purpose 
of completing the assurance thereof, as if the persons in 
whose place an appointment shall have been made, being 



(/) 13 & 14 Vict. o. 60, 88. 32, 84. Wilks v. Groom, 6 De G. H. & G. 
(w) 13 & 14 Vict. c. 60, 8. 20 ; 205 ; Lt re Cuming, L. B, 6 Oh. 72. 



CONVBYANCES OP COPYHOLDS — STATUTORY CONVEYANCES. 



dft 



free from any difiability, had duly done and executed such 

acts and instruments.'' The consent of the lord to the Whenoonfient 

vesting order is not, however, always necessary. When ^c^^aaiyto 

the original trustees disclaim before exercising any act of ▼eating order. 

ownership over the estate and are not admitted, so that 

there is no legal estate in them, it seems that the consent 

of the lord is not necessary to an order vesting the estate 

in the new trustees appointed by the order. Thus in a 

case where the original trustees of a settlement declined to 

act, the Court directed that the copyholds should vest in 

new trustees whom it appointed without the necessity of 

procuring the lord's consent (n) ; and again in Paterson v. 

Pai€rs(m{o), where a trustee of copyholds who had been 

admitted devised them to a person who was not his 

customary heir, and such person disclaimed the devise, 

a petition by the lord of the manor to have an order, whidi 

appointed a new trustee, and directed that all the estate 

which would have vested in the devisee if he had not 

disclaimed should vest in the new trustee, set aside as being 

irregular and informal owing to his consent not having 

been obtained, was dismissed, and it was held that the 

order had been properly obtained without the lord's 

consent. But the lord's consent to the vesting order will 

be necessary where the originally named trustees have 

been admitted and have obtained the legal estate (j^). 

When the lord's consent is required, it is not necessary-for 

him to appear in court, a verified certificate of his consent 

being sufficient (q). The order vesting the lands or 

aj^inting a person to convey will be enforced against 

the lord by mandamus (r). 

When a judge of the Chancery Division of the High Vesting? order 
Court of Justice, or a county-court judge, as the case may JJ^as.^ ^ 

(n) In re FHtcrtft, 1 Jar. N. S. Gh. 240. 
418. {q) Aylet T. Oox, JBa parU Att' 

(o) L. R. 2 Eq. 31. wood, 17 Beay. 584. 

(p) Be toward, 8 W. B. 606 ; (r) lU Lane, 12 W. B. 710. 

aee Oboper v. Jonee^ 25 L. J. N. S. 

h2 



100 THE LAW OF COPYHOLDS. 

hey has decreed the sale of any lands, every person bound 
by the decree or order, who has any estate or right in the 
land, is deemed to be a trustee within the meaning of the 
Trustee Act, 1850, so as to give the judge power to vest 
the land in the purchaser ; and the judge may, for the 
purpose of carrying the sale into efEect, make an ordei? 
vesting the lands, or any part of them, in the purchaser 
or any other person, and the order is to have the same 
effect as if the person bound by the order, and having the 
estate or right in the land, had been free from all dis- 
ability and had executed all proper and requisite convey-^ 
ances and assignments of the land («). Where the judge 
orders any conveyance or assignment of any land, the 
parties to the action in which the order is made may be 
declared to be trustees within the meaning of the Trustee 
Act, 1850, and orders may be made accordingly (t). 
Appointmeiit As already mentioned, when new trustees are ap- 
tastoes. pointed under the Trustee Acts, an order may be made 
vesting the lands subject to the trust in such new trus- 
tees, as if a formal conveyance had been made, subject, 
in the case of copyholds, to the special provisions of 
sect. 28 of the Act of 1850 (w) ; but it is to be noticed 
that when new trustees are appointed under the powers 
given by the Conveyancing and Law of Property Act, 
1881, and the deed by which the new trustees are 
appointed contains a declaration by the appointor to the 
effect that any estate or interest in the land subject to the 
trust is to vest in the persons who by virtue of the deed 
become and are the trustees for performing the trust, such 
declaration does not extend to vesting any legal estate or 
interest in copyhold or customcuy land (x), 
ftamp duty Every order made under the Trustee Acts, 1850 and 

(«) Id & 16 Viot. o. 56, 8. 1. appointing a new trustee of a oopy- 

{t) 13 & 14 Viot. c. 60, B. 30. hold estate and a person to oom- 

{u) Ibid, 88. 32, 34. plete the assurance of the estate ia 

(x) 44 & 46 Viot. 0. 41, s. 84 (1) sooh new trustee, see In r$ S$ff$ 

and (8). For a form of an order W%U^ 9 Haso, 22l« 



CONVEYANCES OP COPYHOLDS — STATTJTOBY CONVEYANCES. 



lOX 



1852, which has the effect of a conveyance or assignment on vesting 
of any landB, is chaigeable with the same amount of stamp ''^"'- 
duty as it would have been chargeable with if it had been 
a deed executed by the person or persons seised or 
possessed of the lands, and every order has to be duly 
stamped for denoting the payment of the duty (y). The 
duty at present payable is regulated by the Stamp Act, 
1891 (s), of which an abstract will be found in the 
Appendix. 

Subsequent statutes have, however, rendered applications 
under the Trustee Acts unnecessary in some of the cases 
which have been mentioned. Thus, by the Vendor and 
Purchaser Act, 1874, it was provided (a) that the legal 
personal representative of a mortgagee of copyholds, to 
which the mortgagee had been admitted, might, on pay- 
ment of all sums secured by the mortgage, surrender the 
copyholds, whether the mortgage was in form an assurance 
subject to redemption or an assurance upon trust. That 
enactment was repealed by sect. 30 of the Conveyancing 
and Law of Property Act, 1881, which provided that the 
personal representatives of a sole trustee or mortgagee 
might on his death, notwithstanding^ any testamentary 
disposition by him, dispose of, or otherwise deal with, any 
trust or mortgaged estate in land as if it were a chattel 
real vested in them (6) ; but by the 45th section of the 
Copyhold Act, 1887, the provisions of that section of the 
Conveyancing Act of 1881 have been repealed so far as ■ 
relates to copyholds (c). Accordingly, on the death of a 
sole trustee or mortgagee of copyholds, the customary 
legal estate and the legal right to admittance will pass as 
before to the customary heir(e^). If such heir is an 



(y) 16 & 16 Yiot. 0. 55, 8. 18. copyholds. 

(z) 54 & 55 Vict. 0. 39, s. 54. (e) 50 & 51 Viot. c. 73, s. 45. 

(a) 37 & 3S Vict. o. 78, b. 4. {d) See In re Mills' Trusts, 37 

(i) See In re Sughes, W. N. Ch.Div.312,40Ch.Div.l4(O. A.). 
(1884) 53, 80 to Act applying to 



103 



THE LAW OF COPYHOLDS. 



infant it will be still neoessary to apply for a Yesting 
order under the Trustee Act, 1850 {e). 
Lunatic Under the Lunacy Act, 1890 (/), the judge in 

mortgagee, lunacy (g) may, where a lunatic is a trustee or mortgagee, 
and as such is solely or jointly seised or possessed of any 
land or entitled to a contingent right in land, by order 
vest the land in such person for such estate as he directs, 
or release the land from the contingent right, and dispose 
of it to such person as he directs ; and the order is to have 
the same efPect as if the trustee or mortgagee had been 
sane and had executed a deed conveying the lands for the 
estate named in the order, or releasing and disposing of 
the contingent right (A). Where an order vesting any 
copyholds in any person is made with the consent of the 
lord, the land vests in such person without surrender or 
admittance (/). Instecul of making an order vesting lands 
or releasing a contingent right, the judge may appoint a 
person to convey or release. When such an appointment 
is made with respect to copyholds, the person appointed 
may execute all assurances necessary for completing the 
conveyance, and the lord of the manor is bound, subject 
to the custom of the manor and the usual payments, to 
make admittance to the copyhold as if the person in whose 
place the appointment was made was free from disability 
and had executed a proper assurance (k). 
Building, &o. When any building society, registered under the pro- 
Acts, visions of the Building Societies Actj 1874, is entitled in 
equity to any hereditaments of copyhold or customary 
tenure by way of mortgage, the lord of the manor is bound 
from time to time, if required by the society, to admit the 
persons, not being more than three, whom the society may 
appoint as trustees on its behalf, provided payment is made 
of the usual fines, fees, and other duties payable on the 

(e) See In re Franklyn^a Mort^ Vict. o. 66, 8. ^7. 
ffOffeet, W. N. (1888) 217. (A) Sect. 136 (1), (2), and (3). 

(/) 53 Vict. 0. 6. (i) Sect. 136 (6). 

(^) See sect. 108, and 64 & 65 {k) Sect. 136 (4) and (6). 



CONVEYANCES OF COPYHOLDS — STATTJTOEY CONVEYANCES. 



103 



admission of a single tenant, or he may admit the society 
as tenant on payment of such speoial fine, or compensation 
in lieu of fine and fees, as may be agreed upon (/). The 
Act further provides that a receipt imder the seal of the 
society, countersigned by the secretary and indorsed on 
the mortgage or further charge, is to vacate the mortgage 
or charge, and is to vest the estate of and in the property 
therein comprised in the person for the time being entitled 
to the equity of redemption without any re-surrender ; 
that if the mortgage or further charge has been entered 
on the court rolls the steward is, on production of the 
receipt, verified by oath, to make an entry opposite the 
entry of the mortgage or charge to the effect that it is 
satisfied, and is to grant a certificate, either on the mort- 
gage or separately, to the like effect, and that the entry is 
to have the effect of clearing the record of the mort- 
gage (m). Similar provisions as to the admittance of 
friendly and industrial and provident societies entitled 
either absolutely or by way of mortgage, and as to the dis- 
charge of mortgages are contained in the Friendly Societies 
Act, 1875 (fi), and in the Industrial and Provident Societies 
Act, 1876 (o). 

Copyholds being within the provisions of the Settled Settled Land 
Land Acts, 1882 to 1890, the tenant for life of the ^''**- 
settled land is empowered to dispose by lease, sale, or 
exchange of the settled land, or any part of it, under 
provisions for protecting the interests of the remainder- 
men and other persons entitled to come in under the 
settlement. The powers of leasing include powers to the 
lords of manors in settlement to give licences to their 
copyholders to grant leases to the same extent as tenants 
for life of freehold lands may make under the provisions 
of the Acts, but the licences have to be entered on the 
court rolls of the manor (jo). But if the custom of the 



(/) 87 & 38 Vict. 0. 42, 8. 28. 

(m) Sect. 42. 

{n) 3S ^ 39 Tiot. o. 60» s. 16. 



(o) 39 & 40 Viot. 0. 45/8. 12. 
(p) 45 & 46 Vict. c. 38, s. 14. 



104 THE LAW OP COPYHOLDS. 

manor should penuit the copyhold land itself to be held in 
settlement within the meaning of these Acts, and the land 
should be so settled, the lease to be made by the tenant 
for life must conform to the custom of the manor (9). 
When the tenant for life has sold any copyhold land or 
given it in exchange or on partition, or has leaded, mort- 
gaged, or charged it in accordance with the provisions of 
these Acts, he may convey the land or create the lease, 
mortgage, or charge for the estate or interest which is the 
subject of the settlement, or for any less estate or interest 
by a deed in any manner necessary for giving efiFect to the 
sale or other disposition of the property ; and such deed 
will effectually pass the land which is conveyed discharged 
from all the provisions of the settlement, but it has to be 
entered on the court rolls of the manor; and on production 
of the deed to the steward, he must, on payment of the 
customary fines, fees, and other payments, admit any 
person whose title under the deed requires to be perfected 
by admittance (r). Again, where land or any estate or 
interest in land is, under or by virtue of any deed, will, 
covenant to surrender or copy of court roll, subject to a 
trust or direction for sale and for th& application of the 
money to arise from the sale for the benefit of any person 
for his life or any other limited period, it is settled land 
for the purpose of these Acts, and the person who is for 
the time being beneficially entitled to the income of the 
land until the sale is, for the purposes of these Acts, the 
tenant for life, and he may apply to the Court for leave to 
exercise the powers of sale and other powers which these 
Acts confer on tenants for life of settled land («). If such 
tenant for life obtains leave and sells under the Acts 
before the trustees for sale are admitted, the purchaser is 
entitled to admittance on payment of one fine only (t). 

(q) See 40 & 41 Viot. 0. 18, 8. 66. («) 46 & 46 Viot. c. 38, s. 68 ; 

(r) 46 & 46 Viot. c. 38, 8. 20 (1), 47 & 48 Viot. 0. 18, 8. 7. 
(2), and (3). (Q In re Noj^lor and SpmdlaU 

Contract, 84 Ch. Diy. 217. 



CONVEYANCES OF COPYHOLDS — STATUTORY CONVEYANCES. 105 

Under the provisions of an Act passed in the year 1841 School Sites 
to afford further facilities for the conveyance and endow- 
ment of sites for schools (u)^ any person who is seised of 
an estate of inheritance in any lands of customary or 
copyhold tenure and has the beneficial interest therein, or 
if seised of an estate for life, with the consent of the 
person neict entitled to the remainder, may grant, convey, 
or enfranchise, by way of gift, sale, or exchange, any 
quantity, not exceeding one acre, of such land as a site for 
a school for the education of poor persons, or for the 
residence of the schoolmaster, or otherwise for the pur- 
poses of education of poor persons in religious and useful 
knowledge {x) ; and all grants, conveyances, and assurances 
are to be made according to the form given in the Act {y). 
By an amending and explaining Act passed in the year 
1849 (2), it is provided that where any land of copyhold 
or customary tenure is granted for the purposes of the 
Acts, a conveyance by any deed wherein the copyholder 
shall grant and convey his interest, and the lord shall also 
grant his interest, is to be deemed vaUd and sufficient to 
vest the freehold in the grantee without any surrender or 
admittance or enrolment in the lord's court (a). 

Under the provisions of the Defence Acts of 1842(6), Defence Acts, 
1860 (c), and 1873 (rf), whenever the compensation for the ^^^^ ^ ^^^^• 
absolute purchase or exchange of any land or interest in 
land, including copyholds, which is required and taken for 
the purposes of these Acts or for the enfranchisement of 
copyhold land, amounts to or exceeds the sum of 200/. (^), 
and the land or interest therein belongs to any person 
who iB under any disability or incapacity, or has not the 
absolute interest therein, or belongs to any person who by 
reason of absence is prevented from treating in respect of 

(«) 4 & 5 Viet. 0. 88. (a) Ihid. 8. 6. 

lg)IHd.B.2. See 16 & 16 Viot. (») 6 & 6 Yiot. c. 94. 

0. 49. (0) 28 & 24 Viet. c. 112. 

(y) 4 ft 6 Viet. 0. 88, s. 10. (d) 36 & 87 Vict. c. 72. 

{x) 12 ft 13 "^^ot. c. 49. («) 6 ft 6 Vict. 0. 94, 8. 26. 



106 



THE LAW OF COPYHOLDS. 



the lands, or who cannot after diligent inquiry be found, 
or who refuses to accept such compensation, or neglects or 
ffidls to make out a title to the lands to the satisfaction of 
Her Majesty's principal Secretary of State for the War 
Department (/), or where any compensation is payable for 
or in respect of any lands taken from or held by any 
corporation or person who has not, independently of the 
Acts, power to agree as to the amount of compensation, 
or to sell and convey the lands, then such compensation 
must be paid into Court to an account in the matter of 
these Acts and of the persons claiming to be interested 
therein. The Paymaster General for and on behalf of the 
Court of Judicature is thereupon empowered to give a 
discharge for the amount, and to sign a certificate pur- 
porting and signifying that the money haa been paid to 
him in pursuance of these Acts for the use and benefit of 
the owners or proprietors who are entitled under the Acts, 
and upon the filing at the Central Office of the Court of 
such certificate, having the receipt of the payment annexed, 
the hereditaments in respect of which the consideration 
has been paid become vested in Her Majesty's Principal 
Secretary of State for the War Department for the time 
being. Compensation between 200/. and 201. is to be paid 
into Court or to trustees at the option of the persons then 
entitled to the rents and profits, and compensation below 
20/. is to be paid to the persons so entitled (g). The person 
or authority acquiring the land may require that the 
compensation shall be settled by arbitration and not by 
reference to a jury, and thereupon the provisions of the 
Lands Clauses Acts dealing with arbitration will apply 
to the ascertainment of the compensation (//). 
Landa Clauses Copy holds taken or purchased by the promoters of an 

(/) See 18 & 19 Vict. c. 117, and s. 6 ; 46 & 47 Vict. o. 29, s. 2 ; and 

23 & 24 Vict. c. 112, b. 20. Supreme Court Funds Rules, 1886, 

{ff) See 6 & 6 Vict. c. 94, s. 27 ; 18 rr. 29, 38. 

& 19 Vict. 0. 117, s. 6 ; 22 & 23 Vict. (A) 64 & 65 Vict. c. 64, s. 11. 
c. 21, s. 8; 36 & 36 Vict. c. 44, 



CONVEYANCES OP COPYHOLDS — STATUTORY CONVEYANCES. ' 107 

imdertakiiig iinder the Lands Clauses Consolidation Act, ConBolidation 
1845 (i), are directed to be conveyed to the company ^^^' 
and their assigns by a deed in the form or to the effect 
mentioned in the Act (k). The deed is to be entered on the 
court rolls on payment of the same fees as on a surrender 
without admittance, and when enrolled it has the same 
effect with respect to the copyholds as if the land had been 
freehold, but until the land is enfranchised in accordance 
with the provisions of the Act it continues subject to the 
same fines, rents, heriots, and services as were there- 
tofore payable (/). If the copyholder fails to make a 
good title to the lands to the satisfaction of the promoters, 
and if the purchase-money agreed upon or awarded in 
respect of the lands has been duly deposited in bank in 
accordance with the provisions of the Act, the promoters 
are empowered, if they think fit, to execute a deed poll 
under their conmion seal if they are a corporation, or if 
not a corporation, under the hands and seals of any two of 
the promoters, containing a description of the lands in 
respect of which the owner has failed to make a convey- 
ance, and upon the execution of the deed poll, which must 
be stamped with the same stamp duty as would have been 
payable upon a conveyance to the promoters, all the estate 
and interest in the lands vest absolutely in the pro- 
moters (m). Upon enrolment of the deed or deed poll the 
steward is entitled to charge such fees only as would have 
been payable on a surrender, but is not entitled to addi- 
tional fees in respect of an admittance (n). No fine is 
payable to the lord upon the execution or enrolment of a 
conveyance by a copyholder to a company under the pro- 
visions above mentioned (o) ; but within three months after 
the enrolment of the deed, or within one month after the 



(«) 8 Vict. c. 18. («) Cooper y. Iforfolk Sail, Co., 

[k) Ibid. 8. 81. 8 Ezoh. 546. 

(/) Jbid, 8. 95. (o) Eeeln. Commrs, for England y, 

(m) Ibid, 8. 97. X. # S, W. Rail. Co., 14 0. B. 743. 



108 THE LAW OF COP'XHOLDS. 

promoters of the undertakmg have entered upon and made 
use of the land for the purposes of their works, whiohever 
first happens, or if more than one parcel of copyholds held 
of the same manor shall have been taken by the promoters, 
within one month after the last of the parcels has been 
taken and entered upon, the promoters have to procure the 
enfranchisement of the whole of the lands held of the 
manor which have been taken by them, and for that pur- 
pose they must apply to the lord for enfranchisement, and 
must pay to him such sum as compensation for enfranchise- 
ment as they and he shall agree upon. If no agreement 
can be made between them, then the amount has to be 
ascertained as in other cases of disputed compensation 
under the Aot{p)j and in estimating the compensation, 
allowance has to be made for the loss in respect of 
the fines, heriots, and other services payable on death, 
descent, or alienation, or any other matters which will be 
lost by the vesting of the lands in the promoters or by the 
enfranchisement (^). Upon payment or tender of the com- 
pensation agreed upon or determined under the provisions 
of the Act, or on deposit of the amount in bank as pro- 
vided for by the Act, the lord of the manor of which the 
copyholds are held has to enfranchise the lands, and upon 
enfranchisement they are held in free and common socage. 
If the lord fails to enfranchise or to make a good title to the 
satisf Etction of the promoters, the latter are empowered to 
execute a deed poll, which has to be duly stamped as 
before mentioned, and upon its execution the lands in 
respect whereof the compensation has been deposited are 
to be deemed as enfranchised, and are to be for ever after- 
wards held in free and conmion socage (r). 

It may be here mentioned that if the copyhold lands are 
subject to any customary rent, and part only of the lands is 
taken, the apportionment of such rent may be settled by 

(p) See 8 Yiot. o. 18, bs. 21—23. (r) Ibid. s. 97. 
(q) Ibid, s. 96. 



OONVETANCES OF COPYHOLDS— STATUTORY CONVEYANCES. 109 

agreement between the owner of the lands and the lord of 
the manor on the one part, and the promoters on the other 
part, and if the apportionment is not settled by agreement, 
it has to be settled by two justioes ; but the enfranchise- 
ment of any copyhold or customary lands taken by virtue 
of the Lands Clauses Consolidation Act, or the special Act 
of the promoters, or the apportionment of any customary 
rent to which the land is subject, does not affect in other * 
respects any custom by or under which any copyhold or 
customary lands not taken for such purposes shall be 
held («). The Act also provides that, if any of the lands 
required for the purposes of an undertaking are released 
from any portion of the rents to which they are subject 
jointly with any other lands, these other lands shall be 
charged with the remainder only of such rents, and with 
reference to any apportioned rents, it enacts that the lord 
of the manor shall have all the same rights and remedies 
over the lands to which the apportioned rent has been 
assigned or attributed as he had previously over the whole 
of the lands for the whole of the rents (t). Where the 
money has been deposited in the bank, on account of its 
being payable to a person having a partial or qualified 
interest only in the lands, it may be applied to one or 
more of the following purposes: — ^in the purchase or 
redemption of the land-tax, or the discharge of any debt 
or incumbrance affecting the land or other land settled 
therewith to the same or Uke uses, trusts, or purposes ; or 
in the purchase of other land to be settled in the same 
way as the lands taken ; or, if the money is paid for build- 
ings taken or injured, in removing or replacing such 
buildings or substituting others, in such manner as the 
Court may direct ; or in payment to any person becoming 
absolutely entitled to such money (w). The power of pur- 
chasing other lands includes the power of enfranchising 

(8) Ibid. ■. 98. («) Ibid. •. 69. 

(0 Ibid* 



110 THE LAW OF COPYHOLDS. 

oopyholdfl (x) , It is a general rale that the lands purohased 
shall be of the same tenure as the lands which were taken : 
the money arising from copyholds may not be invested in 
leaseholds (y), but purchases of copyholds of inheritance 
have been allowed when the money arose from freehold (2) 
and leasehold lands (a), when it was for the benefit of the 
persons interested. Where the money was deposited in 
respect of copyholds enfranchised under the Act, it wm 
held that a tenant for life of the manor was not entitled 
to any portion of the money as a fine which might have 
been payable to him if the enfranchisement had been made 
under the Copyhold Acts, 15 & 16 Vict. c. 51 and 21 & 22 
Vict. c. 94 (b). Where a private Act only authorised a 
company to acquire the copyholder's interest by a deed 
having the effect of a statutory surrender, the rights of the 
lord in the absence of express provision were held to be 
entirely unaffected, and the company not being admitted 
by a trustee were held to have only an equitable estate (e). 

Bankruptcy Under the Bankruptcy Act, 1883 (d)^ the trustee of a 
bankrupt is not compellable to be admitted to any property 
which is of copyhold or customary tenure, or which passes 
by surrender and admittance, or in any similar manner, 
but may deal with the land in the same way as if the pro- 
perty had been duly surrendered or conveyed to such uses 
as he should appoint, and his appointee is to be duly ad- 
mitted accordingly (e). 

'^Gha.ngee oi Exchanges of copyholds are made either by two sur- 
renders and admittances, by an order of the Court, or 
under the authority of Inclosure Acts, 1845 to 1882. 



{x) In re Cheshunt College^ 3 (a) In re Liverpool Loch Acts, 1 

W. R. 638. Sim. N. S. 202. 

(y) £x parte Maeaulayy Se Zan^ {b) Be JFilwm, 3 De G-. J. & S; 

cmhire and Torke. Bail, Co., 23. 410. 

L. J. N. S. CHi. 816. (o) Dimes t. Orand Junction Canal 

(«) In re Cannes £state, 19 L. J. Co,, 8 H. L. 0. 794. 

N. S. Oh. 376. (<i) 46 & 47 Vict. o. 62, 

{e) Ibid, 8. 60 (4). 



(CONVEYANCES OF COPYHOLDS — STATUTORY CONVEYANCES. 



Ill 



With regard to the first of these methods it is unneces*- 
saiy to say anything here ; hut it should he noticed that 
in order to facilitate the exchange of lands lying in common 
fields, persons entitled to copyholds, though for a life estate 
only, were authorised by the Act 4 & 5 Will. IV. c. 30 (/), 
to convey in exchange, by the form of deed mentioned in 
the Act (g), any lands held by copy of court roll lying 
intermixed and dispersed in common fields, meadows, or 
pastures, for other lands either lying therein or being part 
of the inclosed lands in the same or any adjoining parish, 
such deed to be produced to the lord of the manor or 
steward, and to be entered on the court roll, on payment 
of the fees and charges mentioned in the Act (A). And by 
the Acts 65 Geo. III. c. 147 and 56 Geo. III. c. 62, the 
incumbents of ecclesiastical benefices, perpetual curacies, 
and parochial chapelries, are authorised, with the consent 
of the patron of the benefice and of the bishop of the 
diocese, to exchange their parsonages or glebe houses or 
lands for others of greater value and better situated, includ- 
ing copyholds of inheritance or copyholds for lives in any 
manor belonging to the same benefice (/) ; the exchange is 
directed to be made by deeds of grant and conveyance, 
registered as directed by the Acts. By the first of these 
Acts copyholds in manors belonging to the benefice may 
be purchased by such incumbent, or annexed to the benefice 
instead of being regranted as copyhold. All lands so taken 
in exchange or purchased are to be permanently annexed 
to the benefice, and from the date of the annexation to be 
of freehold tenure (k). 

As to exchanges made by an order of the Court, it is Exohanges 
provided by the Trustee Act, 1850, s. 30, that the parties ^e C^^!' 
to any suit for the exchange of any lands may be declared 
trustees within the meaning of the Act, and that orders 
may be made accordingly, and that the Court may make 

(/) Sect. 1. (i) 66 Gteo. ni. o. 147, 8. 1. 

{p) Sect. 7. (*) Ibid. se. 4, 6, 

(A) Sects. S, 9. 



112 



THE LAW OP COPYHOLDS. 



Exohangos 
uuder the 
luolosure 
Acts. 



Bj valaer. 



deQlarations oonoeming the rights of unborn persons who 
would be interested in the lands exchanged, so as to bring 
suoh persons within the operation of the Act. 

This jurisdiction may be exercised by a judge of the 
Chancery Division of the High Court, or by a county-court 
judge where the trust estate or fund to which the action or 
matter relates does not exceed in amount or value the sum 
of 600/. (/). 

Exchanges of copyholds may be made under the In- 
dosure Acts, either by the valuer under the Acts when 
the lands are the subject of an inclosure, or by the 
Board of Agriculture in other cases, without reference to 
inclosure. 

In the first case, the valuer may allot and award any 
land to be inclosed in exchange for any other land in the 
same or an adjoining parish (m). Such exchanges, if 
made for public purposes, as for recreation groimds or the 
like, are to be made with the consent of the persons 
interested in the lands taken, and all other such exchanges 
with the consents of the persons interested therein re- 
spectively (n). Wills and settlements are not to be pre- 
judiced by the exchange, and the titles and uses of the 
exchanged parcels are to be counterchanged(o). Each 
parcel taken in exchange is to be held under the same 
tenures, rents, customs, and services, as the parcel given in 
exchange : the land taken in respect of freehold shall be 
deemed freehold; and the land taken in exchange in 
respect of copyhold or customary land shall be deemed 
copyhold or customary land, and shall be held of the lord 
of the same manor imder the same rent and by the same 
customs and services as the land in respect of which it 
may have been taken, and shall pcuss in like manner 
as the copyhold or customary land in respect whereof 
such exdhimge shall be made, and without any new admit- 



(/) 61 ft 52 Yiot. 0. 43, s. 67 (5). 
(m) 8 ft 9 Viot. 0. 118, ■.92. 



(n) Ibid. 8. 92. 
(0) Ibid, B. 98. 



CONVEYANCES OP COPYHOLDS — STATUTOKY CONVEYANCES. 113 

tanoe in respect of the. lands taken (p). But, "with the 
oonsent of the lord of the manor, and of the persons taking 
any lands in exchange for copyholds, the Board of Agri- 
oultore may declare that the lands shall be held as of free- 
hold tenure on such terms and conditions as may be agreed 
upon between the parties, and as may be deemed just by 
the Board; and the land so declared to be freehold will be 
held as freehold thereafter {q). 

Where the lands are not subject to inclosure under the By Board 
terms of the Inclosure Acts, 1845 to 1882, or where, ^f^^^^* 
though the lands are liable to be inclosed, no proceedings 
for an inclosure are pending, an exchange may be efPected 
by the Board of Agriculture upon the application in 
writing of the persons who are interested in the lands, 
according to the definitions contained in these Acts. On 
receipt of the application, the Board will cause inquiries to 
be made whether the proposed exchange will be beneficial 
to all the parties concerned, and if it appears that the 
proposed terms are reasonable, and that the exchange will 
be advantageous, the Board will frame, and will after- 
wards, on fulfilment of the necessary conditions, confirm 
an order of exchange having a map or plan of the lands 
annexed. The order must specify the lands which are 
given and taken in exchange by each of the persons 
interested (r). The order is not to be confirmed until 
notice has been given by advertisement in three successive 
weeks of the proposed exchange, and three calendar months 
have elapsed from the publication of the last of the 
advertisements. If within that period, any person who is 
entitled to any estate in or charge upon the lands proposed 
to be exchanged gives notice in writing to the Board of 
his dissent, the Board must withhold their confirmation of 

• 

{p)S Sc9 Yiot. 0. 118, 8. 94. powers of the oommiBsioners men« 

{q) 10 & 11 Vict. 0. Ill, 8. 6; tioned in these Acts were trans- 

52 ft 63 Yiot. 0. 30. f erred i;o the Board of Agriculture 

(r) 8 ft 9 Yiot. o. 118, s. 147; bj 52 ft 53 Yict. c. 30. 

9 ft 10 Yict. 0. 70, 8. 9. The 

£. I 



114 THE LAW OF COPYHOLDS. 

the order until the dissent is withdrawn, or the j are satisfied 
that the estate or charge of the person dissenting has 
ceased (s). The consent of the lord of the manor of which 
the copyholds are held is also necessary before the order 
can be confirmed (f) ; a declaration in writing by the 
steward will be sufficient evidence of the lord's consent {u). 
The effect of the order is to counterchange the titles, and 
also the tenures of the lands exchanged, so that lands 
taken in exchange will be held on the same uses and trusts 
and subject to the same conditions as lands given in ex- 
change, and the land taken in exchange in respect of copy- 
hold or customary land shall be deemed copyhold or 
customary land, and shall be held of the lord of the same 
manor under the same rent, custom, and services, as the 
land in respect of which it was taken, without any new 
admittance, and the land taken in exchange in respect of 
freehold land shall be of freehold tenure (a*). A copy of 
the order when confirmed is delivered to each of the parties 
on whose application the exchange is made (y), and also to 
the lord of the manor, or his steward, for the purpose of 
being kept with the manorial court rolls (s). When con- 
firmed, the order of exchange is conclusive evidence that 
the directions of the Inclosure Acts have been obeyed (a), 
and is not liable to be impeached by reason of any defect 
of title of the person on whose application it was made (b), 
PerBOTiH who J^ to the persons who may apply for an exchange, the 
rule is, that persons in the actual possession or enjoyment 
of the land, or in receipt of the rents and profits, are 
" persons interested " within the meaning of the Inclosure 
Acts (c). But lessees for life or lives, or years, holding at 
a rent of not less than two-thirds of the clear yearly value 

(«) 8 & 9 Vict. c. 118, 8. 160. (y) 8 & 9 Vict. c. 118, s. 147; 

It) 9 & 10 Vict. 0. 70, 8. 9. but see 15 & 16 Vict. c. 79, s. 17. 

(m) Ibid, 8. 10. («) 9 & 10 Vict. c. 70, 8. 9. 

{x) 8 & 9 Vict. 0. 118, 8. 147; (a) 8 & 9 Vict. c. 118, s. 106; 

9 & 10 Vict. c. 70, 8. 9 ; and see 39 & 40 Vict. o. 66, 8. ?3. 
MineC v. Leman, 20 Beav. 269. (A) 8 & 9 Vict. c. 118, 8. 147. 

(r) Ibid. 8. 16, 



CONVEYANCES OF COPYHOLDS — STATUTORY CONVEYANCES. 115 

of the land, lessees for a term originaUy not ezoeeding 
fourteen years, tenants from year to year, and tenants at 
will are not entitled to apply, the persons interested in 
sach cases being those who are entitled in reversion inmie- 
diately expectant ; also in oases where the land is held on 
lease for a life or lives, or for a term originally exceeding 
fourteen years, at a rent of less than two-thirds of the 
dear yearly value of the premises, the lessor and lessee 
must apply jointly ; and where a person is in possession as 
receiver, or under a writ of execution, the application must 
be made by him and by the person who, but for his pos-' 
session, would have been in possession of the land, or in 
receipt of the rents and profits {d). The owner of a term 
originally exceeding one hundred years is entitled to apply 
if no rent or acknowledgment has been paid or given for 
twenty years, or if the reversioner is unknown (<?) ; and 
the Board may also, on the application of persons in 
possession of lands under any agreement for exchange, 
proceed with the exchange imder the provisions of the 
Inclosure Acts (/). 

Where two or more persons are interested jointly, 
severally, as a class, or in common in any land proposed 
to be exchanged, the application of two-thirds in value of 
the persons so interested jointly, severally, as a class, or hi 
common, is to be deemed as the application of all persons 
interested or having any estate in the land (g) . Undivided 
shaies in land may also be exchanged under the provisions 
of the Inclosure Acts upon the application of the persons 
interested (//) ; and a person who is interested in several 
parcels of land held under separate titles, or for distinct 
and separate interests, or subject to separate charges or 
incumbrances, may effect exchanges of the several parcels 

(rf) 3id. B. 16. And see the In- {e) 17 & 18 Vict. c. 97, 8. 4. 

stntetiozifl of the Board of Agri- (/) Ibid, s. 5. 

ealtaTO printed in the Appendix, (^) 12 & 13 Vict. o. 83, s. 7. 

pott. W 17 & 18 Viot. 0. 97, s. 2. 

i2 



116 THE LAW OF COPYHOLDS. 

in the same manner as if different persons had been 
interested therein (t). 

It may be mentioned, that all the provisions of the 
earlier Inolosure Acts relating to the inclosure, exchange, 
&o. of land not subject to be inclosed nnder these Acts, or 
of land subject to inclosure but as to which no inclosure 
proceedings are pending, are now applicable to the case of 
land subject to inclosure under these Acts while inclosure 
proceedings are pending (k). 

"All hereditaments, corporeal and incorporeal, may 
now," says Mr. Cooke (/), "be exchanged as freely and as 
easily as a piece of merchandise. These very extensive 
powers of exchange are altogether new to our law, and 
titles dependent on the Commissioners' (m) orders of 
exchange, division, or partition, were at first looked upon 
with some hesitation. What appeared especially startling 
was, that the tenure as well as the title passed over with 
the property of the land exchanged: that the person 
exchanging retained his old title, his old incumbrances, 
and his old tenure, changing nothing but the site of his 
previous property, and this involved the consequence that 
a piece of freehold being exchanged for a piece of oopy- 
hold, the copyhold immediately becomes a freehold, and 
the freehold a oopyhold. This bold and startling effect 
was quite necessary to the full accomplishment of the Act 
» . . but this speoies of legal metempsychosis was so novel, 
that it was scarcely recognised as a practical fact until it 
had been pronounced orthodox legal doctrine by a recorded 
deoiflion of the Courts." It should be noticed, however, 
that there are certain incumbrances which still remain 
charged on the original lands, notwithstanding an exchange 
imder the Inclosure Acts. These charges comprise the 
land tax, tithe rent-charges, chief rents, or quit rents due 

(0 n & 13 Vict. 0. 83, 8. 11. (m) Now the Board of Agrionl- 

{k) 17 & 18 Vict. o. 97, s. 1. ture. 

(/) Cooke, Inclosuree, 117, 118* 



CONVEYANCES OF COPYHOLIW — STATUTORY CONVEYANCES. 117 

from freehold lands, improvement and drainage rent- 
charges, and rates levied by drainage oommissioners. Quit 
rents due from copyholds will, however, become due and 
payable from the land which by the exchange is converted 
into copyhold (w). 

Exchanges of lands belonging to charities may also be Exchanffes of 
made nnder the Acts relating to the sale and exchange of ^^^^^"^ ^*^^" 
charity estates (o). 

Ecclesiastical corporations, and rectors, vicars, perpetual Exchanges by 
curates, incumbents of benefices, and prebendaries of ^J^^t^ng. 
prebends, which are not prebends of cathedral or coUegiate 
churches, may make exchanges with the approval of the 
Church Estate Commissioners. These corporations and 
persons are empowered to exchange with any lessee under 
any lease granted by them all or any lands comprised in 
the lease, or their reversion, estate, and interest in such 
lands for any other lands, whether of freehold, copyhold, 
or customary tenure, or for the estate and interest of the 
lessee in any other lands belonging to thdm, and upon any 
such exchange, either to receive or pay any money by way 
of equality of exchange ; but in such cases, the Commis- 
sioners have to pay due regard to the first and reasonable 
claims of the lessees arising from any long- continued 
practice of renewal Qt?). Provision is made by 17 & 18 
Yict. c. 116 (q), for ascertaining in such cases whether a 
copyholder has a right of renewal. 

Partitions of copyholds may be effected by siurenders Partition of 
and admittances with the lord's consent, or by a decree in <»Py*^<^^<^* 
a partition action, or under the provisions of the Inclosure 
Acts. There could not be a partition of copyholds with- 
out the intervention of the lord, for such an act was an 

(fi) See Instractions of Board of (i^) 3&4yict.o. 113,b.68; 6&6 

Agrieolture, Appendix, pott, Vict. c. 26, s. 8 ; 14 & 16 Yiot. c. 

(o) 16 & 17 Vict. c. 137, b8. 24— 104, bs. 1, 11 ; 21 & 22 Vict. o. 67, 
26, 66 ; 18 & 19 Vict. c. 124, 88. 29 as. 3—6 ; 24 & 26 Viot. o. 106, s. 3; 
~39 ; 60 & 61 Viot. o. 40, a. 6. 26 & 26 Vict. o. 62, a. 2. 

(q) Sect. 6. 



118 



THE LAW OF COPYHOLDS. 



Under the 
Copyhold 

Acta. 



Under the 

IncloBure 

Acts'. 



interference with his rights in his absence by dividing his 
tenements, altering the accustomed rents and services, and 
forcing upon him a different tenant (r). Before the year 
1841, the Courts had no jurisdiction to direct the partition 
of copyholds («) ; but by sect. 85 of the Copyhold Act, 
1841 {t), power was given to the Court of Chancery to 
direct the partition of copyholds in the same manner ajs it 
might direct the partition of freeholds. Yet, although 
the Court of Chancery had no jurisdiction in a mere 
partition suit to decree partition before the Act of 1841, 
the Court had decreed the specific performance of an 
agreement made before the passing of the Act between 
joint tenants of a copyhold estate to divide the land and 
hold the respective parts in severalty, and had ordered the 
parties to make mutual surrenders for that purpose, on the 
ground that joint tenants might sell to a stranger who 
could compel them to perform the contract, and they 
themselves might also compel the lord to accept a sur- 
render from them and admit the purchaser (w) ; and where 
freeholds and copyholds were held together, a partition had 
been indirectly effected by an allotment of the whole of 
the copyholds to one of the coparceners (a?). In a partition 
action, if one of the persons entitled to the legal estate is 
under disability, the Court may declare him to be a trustee, 
and vest or convey his estate, or direct a conveyance, by an 
order under the Trustee Act, 1850 (y). 

Partitions of copyholds may also be made under the 
provisions of the Inclosure Acts, 1845 to 1882, either by the 
award of a valuer in cases where the land is subject to be 
inclosed under the terms of these Acts (s5), or by the order 



(r) Oakeley T. Smithy I 'EdGny26l. 

{») Scott V. Faweety Diok. 299; 
BurreU v. Doddy 3 B. & P. 378 ; 
Momeastle v. Charlestcorthy 11 Sim. 
316.. 

(t) i&6 Vict. c. 36. 

(m) Bolton V. TFardy i Hare, 630. 



(x) Dillon V. Coppin, 6 Beav. 
217, n. 

(y) Seot. 30; and see 53 & 64 
Viot. 0. 39, s. 136, as to yeeting 
orders in case of Innatio trustee. 

(fi) 8&9Vict. 0. 118, s. 90. A- 
oop7 of the instraotions issaed hy 



CONVEYANCES OF COPYHOLDS— STATUTORY CONVEYANCES. 119 

of the Board of Agrioulture in oases where the land is 
not subject to inclosure, or where, though the land is 
subject to be inclosed, no inclosure proceedings are 
pending (a). The Inclosure Act, 1848, enacts that all the 
provisions of the Inclosure Acts applicable to exchange 
are to extend to partitions (d), but in regard to the persons 
interested it should be noted that it is unnecessary for 
lessees to join in applications for partitions (o), and that 
the provisions as to dissents do not apply to partitions if 
two- thirds in value of the persons interested apply (d). 
Land in undivided shares held under separate titles, or for 
distinct and separate interests, or subject to separate 
charges or incumbrances, by the same person, may be par- 
titioned in the same manner as if different persons had 
been interested (e). The order of partition must specify 
the land which is allotted in severalty to each person in 
respect of the undivided part in which he is interested. 
The land when allotted in severalty enures to the same 
uses and trusts, and becomes subject to the same conditions, 
charges, and incumbrances as affected the imdivided part 
in respect of which it was allotted (/). The award or 
order of partition, as the case may be, must be confirmed 
by the Board of Agriculture on the same terms as those 
already mentioned with regard to an order of exchange, 
the confirmation being conclusive evidence in both cases 
that the provisions of the Acts have been complied with (g), 
and in the case of the order of partition rendering it free 
from impeachment by reason of any infirmity of estate or 
defect of title of the persons on whose application it was 
made (A). But an award of partition even when con- 



the Board of Agriculture for effect- {e) 22 & 23 Vict. o. 43, s. 10. 

ing a partition of land under the {d) Ibid. s. 11. 

Inclosure Acts, and of a form of {e) 15 & 16 Vict. o. 79, e. 31. 

application for partition wiU be (/} 11 & 12 Vict. o. 99, s. 13. 

found in the Appendix, /Kw^. (^) 8 & 9 Vict. c. 118, s. 105; 

(a) 11 & 12 Vict. c. 99, s. 13. 89 & 40 Vict. c. 56, b. 33. 

{b) Ibid, 8. 14. (A) 8 & 9 Viot. o. 118, b. 147. 



lands. 



120 THE LAW OF CX)PYHOLDS. 

firmed Ib not oonclusiye as to the title of the allottee (t) ; 
and when the application for partition is made in oases 
where there are no indosure proceedings pending, it seems 
that the application can only be made by persons having 
undivided interests extending over the whole land which 
is to be parted out among the owners of undivided 
interests (A-). 
Intermixed When lands are inconveniently intermixed the Board 

of Agriculture have power to confirm an agreement for 
division made by the parties interested, and to counter- 
change the titles of the parcels allotted on the division ; 
and by the Inclosure Act, 1846, the Board are authorised, 
upon request of the parties, and with the consent of the 
lord in the case of copyholds, to appoint an Assistant 
Commissioner to award a re-division of intermixed lands. 
That Act provides that when any copyhold or customaiy 
land shall be intermixed or held or occupied together with 
land of freehold tenure, or with copyhold or customary 
land held of another manor, or under other customs or 
titles, and such copyhold or customary land cannot be 
identified by the description thereof on the rolls of the 
manor, and the situation or boundaries of such lands shall 
be xmknown or unascertained, the award is to declare what 
parts shall be copyhold and freehold respectively, or be 
held of each such manor or under each of such customs 
• or titles respectively, or is to determine and declare the 
situations and boimdaries (/). After the approval of the 
award the land is to be of such tenures and to be held of 
such manor, or under such customs and titles as therein 
declared, and subject to the same services, uses, trusts, and 
charges as the lands in respect of which they are respec- 

(«) Jacomb v. Turner, (1892) 1 by the Board of Agiicultnre for 

Q. B. 47. effecting a divisian of intermixed 

(k) Ibid, 62, 63. lands under the Indosure Aots, 

(/) 8 & 9 Yict. 0. 118, 8. 148; and a form of application for divi- 

9 & 10 Viet. 0. 70, s. 6 ; 62 & 63 sion of intermixed lands, iHll be 

Vict. 0* 30. The instructions issued found in the Appendix, po9U 



CONVEYANCES OF COPYHOLDS — STATUTORY CONVEYANCES. 121 

tively awarded. The provisions of the Indosure Act of 
1845 as to notioes and dissents in the ease of exchanges 
are applicable to the award of the kind last described (m). 
In the case of glebe lands and of lands of ecclesiastical 
and collegiate corporations, the identity of which had 
been lost, an inexpensive process of ascertaining and set- 
ting out the boundaries had been supplied by the Tithe 
Commutation Acts and the Statute 2 & 3 Will. 4, c. 80. 
*^ These sections (of the Act of 1846) extend this benefit 
to lands held imder lay lords of copyhold and custo- 
mary manors, and to lands held under beneficial leases 
from lay lessors. In the North of England it is no 
unusual occurrence to find in the same field land held by 
freehold, copyhold, and customary tenures, and also land 
held upon lease both for years and for lives; and in 
numerous instances no one parcel of these several lands 
can now be identified. The inconvenience to parties 
dealing with the titles of such land is obvious " (n). The 
same state of things is frequently found existing on estates 
in Norfolk and Suffolk, as well as in the West of Eng- 
land. Mr. Cooke also notioes a case where arable land was 
found to have all the incidents of a common field, except 
that there was no intercommoning after the crop was 
removed. Such cases are dealt with under the provisions 
relating to intermixed lands above cited, and are not 
inclosed as commonable lands (o). 

This may be a convenient place for noticing the rules What statutes 
which have been laid down to determine whether Acts of ^py^^. 
Parliament expressed in general words are applicable to 
copyholds. It is usual in modem Acts to state expressly 
that they apply to customary estates, but there was a 
paucity of expression in some of the early statutes which 
frequently left the point uncertain. In Heydon^s case (p), 
it was held that when an Act of Parliament alters the 



(m) 9 & 10 TusL o. 70, 08. 7, 8. (o) Ibid. 144. 

(»} Cooke, InolosiireB, 348. (p) 3 Bep. 7a. 



122 THE LAW OP COPYHOLDS. 

servioes, tenure, or interest of the land or other thing, in 
prejudice of the lord or of the oustom of the manor or in 
prejudice of the tenant, the general words of such an Act 
do not extend to copyholds ; but when a statute is gene- 
rally made for the public good, and no prejudice accrues 
hy reason of the alteration of any interest, service, tenure, 
or custom of the manor, then usually copyhold and cus- 
tomary estates are within the purview of such Acts. This 
judgment was said by Lord Coke to contain " an infallible 
rule for the exposition of the general words in statutes" (q). 
A general Act will therefore include copyholds, unless it 
is prejudicial to the lord or tenant, or destructive of the 
oustom. A declaratory Act, whether its form be affirma- 
tive or negative, is clearly not intended to introduce any 
new law or to alter any ancient custom, and will therefore 
ordinarily apply to copyholds. On these grounds it was 
settled that the Statute of Westminster the Second De 
Bonis Conditionalibus (r), protecting entails, did not apply 
to copyholds, because it would be prejudicial to the lord, 
as " by this means the tenure is altered ; for the donee in 
tail without any special reservation ought to hold of the 
donor by the same service that the donor holdeth over . . . 
yet it is holden that custom with the co-operation of the 
statute will make an estate tail" («). Nor were copyholds 
within the provisions of the Statute of Westminster the 
Second, which gave the elegit " because it would be preju- 
dicial to the lord and a breach of the custom that any 
stranger should have interest in the lands held by copy 
without the admittance and ordinary allowance of the 
lord " {t) ; but now, by the express provisions of 1 & 2 
Vict. c. 110, copyholds may be delivered in execution 
by the sheriff under a writ of elegit. Formerly, also, copy- 
holds did not fall within the provisions of 18 Eliz. c. 5, 
for the protection of creditors, because an assignment of 

(q) Co. Copyh. fl. 53. («) Co. Copyh. s. 63 ; Jtowden 

(r) 13 Edw. I. 0. 1. V. MalUter, Cro. Car. 42. 

(t) Co. Copyh. 8. 63. 



CONVEYANCES OF COPYHOLDS— OTATUTOBY CONVEYANCES. 123 

copyholds could not be said to be in fraud of creditors, 
inasmuch as it put no available property out of their 
reach through their not having the writ of ekgit {u) ; but 
as copyholds are now extendible for judgment debts under 
1 & 2 Yict. c. 110, they have come within the provisions of 
the Statute of Elizabeth. The Statute of Uses does not 
apply to copyholds, " because the transmutation of posses- 
sion by the sole operation of the statute, without allow- 
ance of the lord or the agreement of the tenant, would 
tend to the prejudice both of the lord and of the 
tenant" (a;). It was settled, also, that the statute 32 
Hen. VIII. c. 28, which confirms leases for twenty-one 
years or three lives made by tenants in tail, or by the hus- 
band and wife of the lands belonging to the wife, did not 
apply to copyholds, for the statute speaks of '^ leases made 
by deed only, so that the intent of the statute is to war- 
rant the leasing of such lands only as are grantable by 
deed, but such are not copyhold lands, for though they 
may, by licence of the lord, be demised by indenture, yet 
in their own name they are demisable only by copy, and 
therefore out of the general purview of the statute "(y). 
And for the same reason it was formerly held that the 
statute 32 Hen. VIII. c. 34, which gives an entry to the 
grantee of a reversion upon the breach of a condition by 
the particular tenant, did not apply to copyholds (s) ; but 
in Glover v. Cope (a) it was held that the surrenderee of a 
copyhold reversion was within the equity of the statute, for 
** it is a remedial law, and no prejudice can arise to the lord. " 
And it has also been held that the assignee of the reversion of 
part of the demised premises is within the provisions of the 
statute (b). On the ground of prejudice to the lord, before 
the Act 9 & 10 Vict. c. 70 the exchange provisions of the 

(w) MaihefCi y. Fearer, 1 Cox, (a) 1 Salk. 185, 4 Mod. 80; TThit' 

Ch. C. 278. ton y. Feacoek, 3 Myl. & K. 326. 

{x) Co. Copyh. 8. 64. (b) Twynam v. Fiekardy 2 B. & 

(y) Jbid. Aid. 106. 
(«) Co. Copyh, 8. 64. 



124 THE LAW OF COPYHOLDS. 

General Inclosure Act, 1845 (c), were held to be confined 
to freeholdB. So without express provisions, saoh as are 
contained in the Lands Glauses Act of 1845, an Act passed 
for enabling land to be taken for a public undertaking 
would not be allowed to prejudice the lord (d). On the 
same principle, a penal statute imposing a forfeiture of land 
will not include customary estates if any part of the for- 
feiture is taken from the lord, since ^' an Act is not to be 
expounded so as to take away the interest of an innocent 
person" (e). The statute 12 Car. II. c. 24, so far as it per- 
mits fathers to appoint guardians for their children, seems 
to apply to copyholds except in those places where the lord 
has by custom the right of appointing the guardian (/). 
Aoifl extended When an Act will benefit the copyholder and not pre- 
hoBOT." judice the lord, it may, " by a benign interpretation," be 

extended to copyholds, even if it be in terms suitable to 
freeholds only, or be merely declaratory of the law. Thus 
the Statute of Merton, 20 Hen. III. c. 1, giving certain 
remedies for dower to widows, was extended to give analo- 
gous remedies in the manor court to widows claiming their 
freebench. On the grounds stated in Heydon^a case {g)j it 
has been held that the statute 4 Hen. YH., as to fines 
being a bar on five years' non-claim, applied where a fine 
was levied by a disseisor or by a feo£Fee of a copyholder (A). 
Lord Coke, however, points out (i) that it had been doubted 
whether the statute extended to copyholds, because by its 
operation the lord would receive great prejudice, inasmuch 
as he would not only lose the fines upon alienations and 
descents, and the benefit of forfeiture, but would also be 
in danger of being barred of his inheritance; but he 
answers the objection by the remark that if the lord 
receives any such prejudice it is through his own default 

(c) 8 & 9 Viot. 0. 118. (/) Watk. Copyh. ii. 103, 195. 

(rf) JHtMt V. Grand Junction Canal (g) 3 Rep. 7a. 

Co,, 9 Q. B. 469. (h) Fodger's ease, 9 Hep. 104 a, 

(*) York {Duke of) ▼. Mareham, 106 a. 
Hard. 432. (*) Co. Gopyh. s. 65* 



OONTETANCSS OF COPYHOLDS— STATUTORY CONVEYANCES. 134 

for not making olaimy for owing to the privity of estate 
that is between him and the copyholder he might have 
made a claim as well as the copyholder himseU. But a 
fine fraudulently levied by a copyholder who pretends no 
title to the inheritance will not bar the lord, for the 
Statute of Fines was intended *' to avoid strife, and there- 
fore cannot extend to estates by fraud "(^'). And it has 
also been held that copyholds are within the seventh 
section of the Statute of Frauds (/), which requires all 
declarations of trust to be in writing (m). And in the 
same way general statutes made for the public advantage 
will be extended to copyholders, though only freeholders 
are named, as the Statute of Merton, 20 Hen. III. c. 4, 
and 13 Edw. I. c. 46, relating to indosures of wastes 
by the owners leaving sufficient for the commoners (n). 

{X) Fermor*9 case^ 8 Bep. 77 a. {n) See SKake$pear v. Peppiny 6 

(/) 29 Car. II. c. 3. T. R. 741 ; Grant v. Gunner, 1 

(m) Withers y. Withers, Amb. Taunt. 435. 
161. 



126 



THB LAW OF GOPIHOLBS. 



CHAPTEE V. 



THE DESCENT OP COPYHOLDS. 



Cufltomary 
descent. 



Freeholds 
may be sub- 
ject to cus- 
toms of 
descent. 



In the absence of a local custom of descent, and so far aa 
ench local custom does not expressly extend, copyhold 
lands are governed by the ordinary law of inheritance (a). 
Such special customs are strictly construed, so that if the 
actual words of a custom declare that in certain instances 
the land shall descend in a particular way, and there stop, 
if there be no person to answer the literal description, the 
common law must declare to whom the estate shall 
descend (6). The word "descent" may have a special 
meaning in a presentment or statement of a particular 
custom (c). 

Freehold lands as well as copyholds are not imfre- 
quently subject to particular customs of descent, and these 
are found in various ancient cities and boroughs, as well 
as in manors of ancient demesne and manors of the 
ordinary kind ; but local cnstoms of this kind can only be 
claimed for districts of certain kinds. " In a town which 
is neither city nor borough, the custom of gavelkind or 
borough-english cannot be alleged : but these are customs 
which may be in cities or boroughs; also if lands be within 
a manor, fee or seignory, the same may be of the nature 
of gavelkind or borough-english " {d). And the customary 
descent in gavelkind extends, as has been already men- 

(a) Denn d. Ooodmn v. Sprapf 1 (c) See Biekley v. Biekley^ L. R. 

T. R. 466. 4 Eq. 216. 

{h) In re Smart, Smart v. Smart, {d) Co. litt. 110 b. 

18 Oh. Div. 165. 



THE DESCENT OF COPYHOLDS. 127 

tioned (e), through all lands in Kent which can be 
presumed to have Been originally held in socage. Such 
oustoms have been allowed in ancient districts of legal 
importance such as honours and sokes, which may com- 
prise several manors, hundreds, oastleries, and other lord- 
ships. 

The main difference between the customs extending to Difference 
freeholds and copyholds respectively, is that, in the first ^*7®®^ 

*-\ . customs as 

case, the custom will " run with the land " (/) ; and in the applying to 
case of copyholds, the custom being a part of the copyhold ©S^yhoWs. 
tenure will disappear on enfranchisement or extinguish- 
ment of the tenure {g). " There are customs," says 
Watkins, " such as borough-english and gavelkind, which 
run with the land, so that the land cannot be discharged 
of them by fine, recovery, enfranchisement, or escheat, or 
any other means than a positive Act of Parliament" (A). 
He points out that this would be the case where the 
custom refers solely to the locality of the lands, but that 
if it be pleaded that aU lands held by copy of court roll, 
or parcel of the manor of B., descend to the youngest son, 
0uch lands when enfranchised would of necessity cease to 
be copyhold. The passage, which the same writer cites 
from Brobinson on Gavelkind as if it had related to copy- 
holds, appears rather to relate to a freehold, subject to a 
custom running with the land (e). 

Another point to be noticed is, that the word " gavel- What gavel- 
kind " is applied in common parlance to all customs of ^°^* "nplies. 
partible descent both in freeholds and copyholds {k) ; and 
in the same way the word " borough-english " is used as a 
general name for every descent to the youngest, although 
the term in its strict legal sense applies only to the 

(e) Ante, pp. 8, 9. running with the land, Bro. Abr. 

(/) Co. litt. 110 b. ** Costom," 19, and " Extingmah- 

iff) See pott, o. zi. ment," 14, and Wiaeman v. Cotton, 

. (h) Watk- Copyh. U. 65, 66 ; 1 Sid. 136. 

JHekaon't case, Hetl. 64, 66. (Jc) See Witmm t. Cotton, 1 Sid. 

(«) See further as to oustoms 136. 



128 



THE LAW OF CJOPYHOLDS. 



What 
boroufl^h- 
engli^ 
implies. 



Varieties of 
local castoms 
of inheritance. 



Varieties of 
descent in 
gayelkind. 



Borongh- 
english. 



youngest son, and not to females or collaterals ; but the 
word " gayelkind " in pleading will imply nothing more 
than partible descent among males, and the word borough- 
english nothing more than descent to the youngest son, 
and all other varieties of customary descent must be 
specially described and proved (/).- 

The chief varieties of these local customs of inheritance 
seem to be as follows : — 

(1.) Descent in Kentish gavelkind, or under similar 
customs, where the land descends in the same course as the 
ancient socage lands in Kent, the males in each degree 
taking as coparceners, and the custom extending to 
collaterals, subject in each case to the rule of representa- 
tion (w). 

(2.) Customs of the same nature as gavelkind, but less 
extensive ; as that the partible descent shall only be for 
sons and not for males in any other degree, or that 
females shall never come into the inheritance, as in the 
manor of Tynemouth (n) ; or more extensive, as that 
females and males should share together, as is stated to 
have been the case in Wareham in Dorset {o) ; with other 
variations in other places, as that the land shall descend to 
the youngest son if it is under a certain value, but if 
worth more it is to be parted among all the sons (p), 

(3.) Borough-english proper, or the general custom of 



(/) Clement t. Seudamore, 6 Mod. 
120. 

(m) As to the pteralence of these 
customB in ancient times, see 
Glany. yii. o. 3 ; as to the Welsh 
yaneties of g^velkuid found at 
Chester, IJsk, TreUeg, Arohenfield, 
and in the Vale of Qlamorgan, see 
Rob. Gav. i. 0. 3; Taylor, Gav. 
0. 2 ; Elton, Tenures of Kent, o. 4 ; 
the statutes 27 Hen. VIII. o. 26 ; 
34 & 35 Hen. VIIL c. 26 ; as to 
the Irish yaiiety of gavelkind, the 
Cate of TanUtrff, Day. 28 b ; as to 



Exeter, 23 Eliz. c. 12 (Pr.) ; as to 
Wareham (Dorset) and the Isle of 
Portland, Taylor, Gkiv. 101 ; as to 
the Soke of Oswaldbeok (Notts), 32 
Hen. VIII. c. 29 ; as to Stepney 
and Hackney, 21 Jac. I. c. 6 (Pr.) 

(fi) See Newion v. Sha/io, 1 Sid. 
267 ; Sympson v. Quinley^ 1 Vent. 
88. 

(o) Watk. Copyh. ii 616, citing 
Flao. de Jur. et Ass. 16 Edw. I. 

{p) E. P. Comm. 1 Rep. App. 
264. 



THE DESCENT OP COPYHOLDS. 129 

borough-english, where ihe youngest son inherits his 
father's land. This oustom occurs both in freeholds and 
copyholds, and there is no difference in the mode of its 
application to lands of different tenures, except that in the 
case of freeholds the custom runs with the land, and is 
not extinguished by a purchase on the part of the lord (q). 
The rules relating to gavelkind and borough-english lands 
are the same, except as to the quantity taken by the heir ; 
in gavelkind each son as heir taking an equal part, but in 
borough-english the youngest taking the whole as heir. 
Borough-english, though very rare in Kent, is not abso- 
lutely unknown in the few copyholds which exist in that 
county (r), but prevails largely in the counties of Sussex 
and Surrey, and in the manors of Islington and Edmonton, 
near London («). 

(4.) There are many special customs analogous to Varieties of 
borough-english proper to which that name is applied in y^^t 
common parlance, but which might appropriately be 
classified under the wider name of "junior right." It has 
been laid down that, the principal custom being confined 
to the case of sons, every variation must be specially 
pleaded and proved. There is an early case which gives 
a somewhat larger significance in pleading to the term 
borough-english. There it was said that " the law takes 
notice of the customs of borough-english and gavelkind, 
what they are, and the consequences of such customs : 
and though it be true that borough-english custom pritnd 
facie gives only to the youngest son, yet upon that founda- 
tion of alleging it to be borough-english land, such an 
addition or enlargement of it, as to go to the youngest 

{q) Beeve y, Mahierj Cro. Car. 286 ; Comer's Boroagh-Engliah in 

410. Sussex; Chanock, Manorial Cns- 

(r) Fretton v. JitrviSf 1 Vem. 325 ; toms of Essex ; and for lists of 

Elton, Ten. of Kent, 170. principal places where it is found, 

(«) For an account of the custom see Bobins. Qay. App. ; Elton, 

and its extent, see Co. litt. 110 b; Ten. of Kent, 162—176; Elton, 

B. P. Comm. Ist Rep. App. 254, Orig. Eng. Hist. o. riii. 

E, K 



130 THE LAW OP COPYHOLDS. 

brother or nephew, may be made ; it being agreeable to the 
nature of a borough-englieh custom " (t). But the weight 
of authority is in favour of the rule, that the extension of 
the custom to collaterals must be specially proved, and will 
not be implied by pleading that the land is of the nature 
of borough-english (u). Among these varieties of junior 
rights are special customs in favour of the youngest brother 
where the tenant has no sons, but several brothers, as in 
the manors of Dorking, Milton, and Westcott in Surrey, 
in favour of the youngest male collateral in each degree, 
as in the manors of Acton, Ealing, and Isleworth in 
Middlesex. In the manor of Lyddington-cum-Caldecott 
in Eutland the custom is, that the land descends to the 
youngest son of the person last seised, if he has more than 
one, if no son to the daughters as parceners, and if no 
sons or daughters, then to the youngest brother of the 
person last seised, and to the youngest son of such youngest 
brother (x). There are also customs which extend the 
principle of junior right to females as well as males, as in 
the manors of Pulham, Putney, Sheen, Mortlake, Batter- 
sea, Eoehampton, Wimbledon, Wandsworth, Down, Barnes, 
and Eichmond in Siurey, in some cases to daughters alone, 
but in others to sisters, aunts, or collaterals of every 
degree (y). 

The principle of " junior right " prevails so generally 
upon copyhold lands in Sussex that it has often been 
called the common law of the county ; and in the Eape of 
Lewes the custom is nearly universal. " A comparison of 
the manorial usages will show the following results. The 
privilege is usually extended to the heirs in remote degrees: 
the youngest of the sons, daughters, brothers or sisters, 
uncles or aunts, or male or female collateral relations, 

(0 Pai/ne v. JBarker, O. Bridg. 120 ; Itider v. Wood, 1 K. & J. 644. 

18, 25; S. CMPainY.fferbertfdtedi {x) Mugghton v. Bamett, 2 H. & 

2 Keb. 158 ; 5. (7. as Fane v. Barty N. 663. 

cited 1 Salk. 243, and 6 Mod. 120. (y) Elton, Ten. of Kent, 169 ; 

(m) Clement v. Scudamorey 6 Mod. Elton, Orig. Eng. Hist. 189. 



THE DESCENT OF COPYHOLDS. 131 

hemg entitled to the oustomarj pref erenoe. When there 
are seyeral kinds of tenure, the benefit of the custom is 
confined to the more ancient. In some places, for example, 
there are two kinds of copyhold land, the one called VBond- 
land,' and the other *Soke-land.' In such cases, the custom 
is confined to the Bond-land {z) ; and in some manors the 
priTilege of the youngest is lost if his predecessor were the 
owner of Soke-land at the time of his coming into the Bond- 
land. ' Some of these customs are very strange,' said a 
learned writer (a), ^ such as that of the manor of Wad- 
hurst, where there are two sorts of copyhold tenures, and 
the custom is, that if the tenant was first admitted to 
Boke-land and afterwards to Bond-land, the heir-at-law 
should inherit both, and if he was first admitted to Bond- 
land then his youngest son should inherit both, but if he 
was admitted to both at the same time, then his eldest son 
should take the whole.' There is a similar usage in the 
manors of Eramfield and Mayfield, where in each case the 
written collection of customs forms a valuable repository 
of ancient law. In those districts, and in many others in 
the neighbourhood, the copyhold lands which have been 
reclaimed from the forest waste are known as ^Assart- 
lands.' The distinction between them and the more 
ancient holdings appears in the following extract : ' If any 
man or woman be first admitted to any of the Assart* 
lands, and die seised of Assart-lands and Bond-lands, then 
the custom is, that the eldest son be admitted for heir to 
all, and if he or she have no son, then the eldest daughter 
likewise. And if the said tenant be first admitted to 
Bond-land, the youngest son or youngest daughter shall 
be heir to all his customary lands.' At Eotherfield, the 
custom is still more intricate. There are three kinds of 

(«) See Vauffhan v. Atkint, 6 (a) Nelson, Z«;Jrawmor«m,pref., 

Bur. 2764, for difference in dee- citing the observationB of Ander- 

cent between fmrpretture land and son, G. J., in Kempe v. Carter, 1 

bmd land in Kanor of Bitteme, Leon. 66. 
Bants. 

k2 



132 THE LAW OP COPYHOLDS. 

land: assart, farthing-land, and cotman-land. To the 
first the eldest son is heir, to the second the youngest son, 
and in default of sons the youngest daughter, and the 
cotman-lands descend to the youngest son, but failing a 
son are divided among all the daughters. In Pevensey 
also there are three different tenures of freehold lands, of 
which the first goes to the common law heir, and the others 
to the youngest son, and in other parts of the same county, 
as in the manor of Plumpton, and on the lands ' between 
the watch-crosses at Boxgrove,' there are freeholds that 
are subject to the customary rule" (b). The custom of 
preferring the youngest also preyails in the extensive 
district in Somerset, which is known as the Manor of 
Taunton Deane, and is described in the Custumal to be as 
follows : " If any tenant die seised of any customary 
lands or tenements of inheritance within the said manor, 
. . . and if he hath more sons than one, then the youngest 
son hath used to have and inherit the same as sole heir to 
his father by the custom of the said manor ; and so like- 
wise of daughters, if he hath more than one and die with- 
out issue male, the youngest daughter ought and hath 
used to inherit the same as sole heir to her said father by 
the custom of the said manor. But if the father hath 
neither wife nor son nor daughter, then the youngest 
brother of the whole blood ought and hath used to inherit 
the same lands ; and if he hath no brother of the whole 
blood, then the youngest sister of the whole blood ; and if 
he hath neither brother nor sister, then this is a rule in 
the said custom, that the yoimgest next of kin of the whole 
and of the worthiest blood ought and hath used to inherit 
and hold the lands to him and his heirs for ever" (c). 
Restriction of (5.) There may be also special customs of a more 
borough- restricted nature than the general custom of borough- 
enariishto enfflish, of which the most important are those which 

youngest son o » ^ 

(b) Elton, Orig. Eng. Hist. 187, (e) Shillibeer, Costonis of Taon* 

188. ton Deane, 42, 43. 



THE DESCENT OF COPYHOLDS. 



133 



restrain the custom to the case of a tenant dying seised, of "tenant 
In a case (^), where the copyhold lands of every tenant ^^^^^ 
dying seised were descendible to the youngest son, a 
surrender was made to the use of B. and his heirs ; but B. 
died before admittance. It was agreed, that if B. had 
been admitted, the youngest son after his death would 
have inherited ; but as B. had died before admittance, the 
question was between the eldest and youngest son of B., 
and it was adjudged that the eldest son should have the 
land because of the strictness of the custom, there never 
having been any seisin in the ancestor. In the much- 
discussed case of Muggleton v. Barnett (<?), it was argued 
that the Inheritance Act had deprived a custom of this 
kind of its significance, the person last seised being no 
longer the root of descent in any case, but the strict 
interpretation of the custom was upheld. In that case, 
the custom was shown to be that the land should descend 
to the youngest son of the person last seised, if he had 
more than one son, and if no son, to the daughters as 
parceners ; and if no issue, then to the youngest brother 
of the person last seised, and to the yoimgest son of such 
youngest brother. In the case of Bickley v. Bickley (/) it 
was held that the word " descent " was not confined to its 
ordinary sense, but applied to each transmission of the 
estate, whether by devise or inheritance. 

There may be other varieties of junior right, as that fee Varietiefl of 
simple lands should go to the yoimgest son and entailed J*^^^"^ 
lands to the eldest (^), or that the special custom shall only 
extend to copyholds in a particular district in a manor, as 
in the manors of Framfield, Mayfield, Taunton Deane, 
and Wadhurst, already mentioned. 

(6.) Other local customs give a preference, in default of Customs of 
sons, to the youngest daughter, and sometimes to the among 

females. 

(rf) Fayne v. Barker, O. Bridg. (/) L. R. 4 Eq. 216. 

18 ; see note (t), ante. {g) Chapman t. Chapman, March, 

(e) 2 H. & N. 653 ; see Williams, 6i. 
Real Prop. App. A. 



134 



THE LAW OF COPYHOLDS. 



Customs for 
the widow or 
widower to 
inherit. 



eldest (A). Traces of this special custom of primogeniture 
are found in the extensive districts of Oastlerigg and Der- 
wentwater in Cumberland, at Kirkby Lonsdale in West- 
morland, at Weardale in Durham ; in the manors of 
Bray in Berkshire, Marden in Herefordshire, Oasthiobury 
and St. Stephen's in Hertfordshire, Middleton Cheney in 
Northamptonshire, and Chertsey, Beaumond, Famham, 
Worplesdon, and Pirbright in Surrey. In the Same way, 
the eldest or the yoimgest daughter may have a customary 
preference in the claim to a renewal of a copyhold for 
lives (t). In the manor of Tynemouth the descent, in 
default of sons, is to tiie eldest daughter for life, and it 
was stated that then ^ the land shall descend to the next 
heir male deriving his title through males, and if there be 
none such, the land shall escheat to the lord'' (k). A 
custom to exclude female heirs altogether has been held 
good (/) ; but this would not exclude females claiming by 
representation to stand in the place of a male heir (m). 
Such customs of female primogeniture may extend to the 
case of sisters, nieces, aunts, &c., or to the females in every 
degree. Such customs will be always strictly interpreted. 
Thus, where there is a custom that land shall descend to 
the eldest sister, this will not extend to the eldest niece or 
aunt, &c., for, in the absence of special proof, the custom 
of the lineal descent will not be extended to the collaterals, 
nor the usage as to one degree to any other degree of 
relationship (n). 

(7.) There may be a valid custom for the widow or 
widower to inherit instead of the issue, as in the manor of 
Taimton Deane, where the heir in borough-english is 



{h) SeeCo. Litt. 140 b. 

(t) See I>oe d, Hamilton y. Clift, 
12 A. & E. 666. 

{k) Newton v. Shafto, 1 Sid. 267. 

(/) Sytnpton V. QuinUy^ 1 Vent. 
88. 

(m) Clemetit v. Scudamore, 6 Mod. 



120; Bob. Gav. 113, 114. 

(») Chapman^t Cote, 2 BoUe's 
Bep. 366; Rateliffe y. Chaplin, 4 
Leon. 242; Denn d. Goodwin y. 
Spray, 1 T. B. 466; Bob. Gay. 
119 ; He Smart, Smart y. Smart, 18 
Ch. Diy. 165. 



THE DESCENT OF COPYHOLDS. 135 

excluded in the following cases : — " If any tenant die 
seised of any customary lands or tenements of inheritance 
within the said manor, and having a wife at the time of 
his death, then his wife ought, and hath used time out of 
mind, to inherit the same lands as next heir imto her 
husband by the custom of the said manor, and be admitted 
tenant thereunto, to hold the same unto her and her heirs 
for ever, according to the custom of the said manor, and 
in as ample manner as any other customary tenant there 
holdeth his lands under the rents, fines, heriots, customs, 
duties, suits, and services for the same due and accus- 
tomed " (o) ; and also " In case a woman seised of any 
customary lands of inheritance, parcel of the said manor, 
marry a husband, the same husband ought, and by the 
custom of the said manor hath used, to fine with the lord 
of the said manor for her and her land at the old precedent 
fine of the same land, and thereof to make an entry with 
the clerk of the castle, and to put in pledges at or before 
the first law-day court after the said marriage, by virtue 
of which marriage, entry, and pledges, the husband be- 
comes owner of the same land, and is to be admitted 
tenant thereunto to hold the same to him and his heirs for 
ever, according to the custom of the said manor " ( i?). 

All these local customs of descent extend to estates-tail To what 
as well as to fee-simple inheritances. '^ If a man dies toma extend. 
seised of lands in gavelkind in tail, whether general or 
special, all the sons will inherit together as heirs of the 
body ; and in^ like manner if lands in borough-english are 
given to a man and the heirs of his body, the youngest 
son will take " (q) . There has been a question, if gavelkind 
lands, or lands subject to similar customs, are devised to 
a man and his wife for their lives, with remainder to the 

(o) Shillibeer, Costoinfl of Tann- (p) Shillibeer, Customs of Tann- 

ton Deane, 42 ; and see Zoeke y. ton Deane, 49. 

JSoutAtcoody 1 Kyi. & Cr. 411 ; 8. C. (g) Bob. Gav. 119, 120 ; IFeekt v. 

tub mm, Bmh T. Loeke, 3 a. & F. Cartel, Noy, 106 ; Go. Litt. UOb. 
721 (H. L.) 



136 THE LAW OF COPYHOLDS. 

next heir male of their bodies, whether the eldest son 
should inherit, or whether the land would be partible ; but 
it seems dear that, according to the analogy of similar 
cases as to lands descendible at common law, there would 
be an estate tail in the parents, and the co-heirs in gavel- 
kind would be the heir in tail (r). 

The customary descent will attach not only to estates in 
fee simple and fee tail, but also to descendible estates ^r 
autre vie, where the heir or heir of the body is designated 
as special occupant to take the descendible freehold. ^^ If 
lands of the nature of borough-english are let to a man 
and his heirs during the life of J. S., and the lessee dies, 
the yoimgest son shall enjoy it " (s). And now the 
" descent of lands " includes the descent of every possi* 
bility, right or title of entry or action, and every other 
interest capable of being inherited, whether in possessioUi 
reversion, remainder, or contingency (f). 
Alteration of The customaiy course of descent cannot be altered by 
deaoent? words directing that the land shall descend to the heirs at 

common law. '^ A man seised of gavelkind lands gives or 
devises the same to a man and his eldest heirs : he cannot 
thereby alter the customary inheritance, but, ut res magia 
vakat^ the law rejects the adjective * eldest ' " (u) ; and this 
rule extends to estates tail. So if a copyholder, where the 
lands go in a customary course of descent, surrenders to 
the use of himself and his heirs, ^^ according to the course 
of the common law," the latter words would be treated as 
surplusage (ic). A grant or devise to the heir of A. B. 
would, however, be presumed to be intended for the heir at 
common law as a persona designata ; but where the term 
** heir '' is used as a word of limitation, and not as a word 
of purchase, the customary heir would be preferred (y). 

(r) May v. Milton^ "Dyerf 133 b. Lovelace, Cro. Eliz. 40. 

(») Co. litt. 110 b; Baxter v. (a?) Co. Litt. 10 a, n. 3 (Harg.); 

DowdeweU, 2 Lev. 138. Anon., Djer, 179 b. 

(0 3 & 4 Wm. rV. 0. 106, B. 1. (y) Co. litt. 10 a; Bob. Obt. 

(u) Co. Litt. 27 b; see Lovelace v. 123, 156. 



THE DESCENT OF COPYHOLDS. 137 

In Thorp y. Owen (s), it appeared that a testator, seised of 
certain gavelkind lands in the county of Kent and certain 
freeholds in the county of Essex, had devised all his real 
estate, after the death of his wife, to his then male heir 
and his heirs in strict tail male ; and it was held that on 
the death of the wife all the testator's lands passed to his 
then heir at common law, and that his heirs in gavelkind 
were not entitled to the gavelkind lands. In Polley v. 
Polley (a) there was a devise, after a tenancy for life, of 
borough-english lands for sale and division of the moneys 
among all the testator's sons and daughters who might 
then be living, and to the heir and heirs of those who 
might have died, share and share alike. It was held that 
under the gift to heirs the common law heir, and not the 
heir in borough-english, took. 

The heir at common law was formerly the only person Descent of 
who could take advantage of a condition broken, the right ^^^ ° 
of entry not descending to the customary heirs, unless the 
condition was incident to the reversion of the customary 
land, so that if a man alienated lands of gavelkind or 
borough-english tenure on condition and then died, the 
eldest son alone could take advantage of a breach of the 
condition and enter on the land {b). But if the condition 
was incident to a reversion, the customary heir might take 
advantage of it (c?). But now, imder the provisions of the 
Inheritance Act, 1833, every possibility, right or title of 
entry or action, and any other interest capable of being 
inherited, descends as " land" {d). 

If a manor is subject to a special custom of descent, the CnBtoms of 
advowsons, whether appendant or in gross, and the rents, tend to 
services, and profits incident to the manor, will go in the ™a^o"> ^^' 
same course of descent. The following examples illustrate 
the mode of descent of profits incident to a manor subject 

(f) 2 Sm. & G. 90. {e) Anon,,, Godb. 2 ; Bob. Gar. 

(a) 31 Beay. 363. 169. 

(h) See Earl of ArunOeVt Gtue, (<Q 3 & 4 WiU. IV. c. 106, b. 1. 

Dyer, 342 b, 343 b. 



138 



THE LAW OF COPYHOLDS. 



But not to 
tithes. 



CastomaiT 
descent of 
rents, &o. 



to such a special oufitom of inheritanoe. If a fair or market 
be held on gavelkind lands, or other customary lands, such 
profits as arise from, or by reason of, the soil will descend 
in the same manner as the land : but such as are inde- 
pendent of the soil will go to the heir at common law, as 
may be inferred from what was laid down in the case of 
Heddey v. Welhou8e{e)^ "that if the king grants a fair or 
market, with toll certain, to a man and his heirs, to be 
held within borough-english land, and the grantee dies, 
the heir at common law will have the fair or market with 
the tolls, but the younger son will have the pickage and 
stallage," or payments made in respect of interfering with 
the soil by poles, as being incident to the soil(/). 

But such customs did not extend to any tithes coming 
to the Crown by force of the statutes relating to the dis- 
solution of monasteries (</). 

The same rules apply to rents which issue from custo- 
mary lands. A rent-service, which is parcel of a manor, 
will descend with the manor, whatever be the nature of 
the lands charged {h). But it was long doubted whether 
a rent, charged upon or reserved out of customc^y lands, 
will in other cases descend according to the nature of the 
land. " A custom," says Lord Coke, " never extends to a 
thing newly created, and therefore if a rent be granted 
out of gavelkind lands or borough-english, it shall descend 
according to the course of the common law " («)• But the 
point was settled by the case of Randall v. Jenkim (^•), 
where the question was whether a rent-charge, granted 
out of gavelkind lands to a man and his heirs, should go 



{e) Moo. 474. 

(/) Rob. Gkiv. 100, who cites 
an unreported case of Hebow y. 
Bickerton, Trin. 7 Geo. I. Exoh., to 
the same effect. 

{g) Go. Litt. 169 a ; Lmhington 
T. Llandaff (Bishop of), 2 N. R. 
491. The Statutes of Monasteries 
are the Acts 27 Hen. YIII. c. 28 



31 Hen. VIII. c. 13 ; 37 Hen.VIII. 
0. 4; 1 Edw. VI. c. 14; 1 & 2 Ph. 
& M. c. 8 ; 35 Eliz. c. 3. 

{h) Bob. Gav. 100. See also 
Gouge v. Woodin (King's Bench, 
1734), of which an account is given 
in Elton, Ten. of Kent, 189. 

(i) Co. Copyh. s. 33. 

k) 1 Mod. 96. 



THE DESCENT OF COPYHOLDS. 139 

to the heir at common law, or be partible among all the 
sons; and ''after solemn argument by two Kentish counsel 
and consideration of aU the cases," the Court held that 
the rent ought to descend to all the sons according to the 
descent of the land, because the rent was part of the 
profits of the land and issued out of it ; and the decision 
was followed in Stokes v. Vei^er (/) and Baxter v. Dotcds- 
well{m), "If the rent be issuing by one entire grant 
out of lands of different natures, they who claim imder 
the custom will have no share in the inheritance, but the 
common law descent will be preferred to the whole as the 
most worthy." But if rent is reserved out of land of 
two customary natures, e,g,, if a man makes a lease for 
years of two acres of land, one in gavelkind and the other 
in borough-english, and has issue two sons, and dies, '' the 
rent will be apportioned, because it is incident to the re- 
version "(n). 

Where copyholds are made the subject of a trust, " the Equitable 
equitable estate possesses those incidents of the customary ®®'**^' 
property which directly affect the tenant, and therefore 
the rules of descent are those which the custom pre- 
scribes" (o). There is, of course, an exception where, as 
in the cases mentioned above, the customary descent is 
only applicable to the case of "a tenant" or a tenant 
"dying seised "(j!>). The customary descent will attach z^^^^. '^^ ^^ 
in the case of an equity of redemption, or a resulting trust, 
or the case of a surrenderee dying before admittance {q). 

An executory trust, as disting^hed from an executed 
trust, in favour of the heirs of A., is construed in favour 
of the heirs at common law, and the Court will direct a 
conveyance to be made accordingly, the word "heirs" 

(/) 1 Mod. 112. (p) Payne v. Barker, O. Bridg. 

(m) 2 Ley. 138. 18 ; Rider y. Woody 1 E. & J. 644. 

(ft) Dumpor't caee, 4 Rep. 119 b, (g) Barker y. Denham, Sty. 146 ; 

120b; Go. Litt. 148b, 216a. Fawcety. Lowther, 2 Yes. 300, 304 ; 

(o) Burt. Gomp. s. 1396 ; Go. BUtnt y. Clark, 2 Sid. 61. 
litt. 13 a, 23 a. 



140 THE LAW OF COPYHOLDS. 

being taken as a word of purchase and not of limita- 
tion (r). 
Money repre- In a case where the heirs to certain gavelkind land had 
sentiiig . ^jQjjQ^jj^^ ijj i^g ggjQ^ {f^ ^as insisted that the money pro- 
duced by the sale remained impressed with the character 
of real property, and that a proportional part of it ought 
to descend to the heirs in gavelkind ; but the claim was 
rejected as fanciful and untenable («). 
Who is the A custom of borough-english, or other similar custom, 

toma^heir. is not strictly confined to the son who is youngest at the 
death of the father, for a posthumous son will be entitled 
to the lands, notwithstandiug that the son who was 
youngest at the death of the father has entered {t) ; and 
so also if the son who was youngest at the father's death 
has died without lineal issue before the succession devolves 
on him, and if the custom does not extend to collaterals, 
the descent will be traced from the father, and the son 
who is youngest at the time of tracing the descent, or if 
he is not alive his issue, will be preferred. In the case of 
Eeeve v. Mahter (m), Tvhich referred to copyholds in the 
manor of Hoe in Suffolk, descendible by the custom to the 
youngest son of the tenant "dying seised according to 
the nature of borough-english," a reversion descended to 
the youngest of three sons who died before the tenant for 
life without issue. When the reversion came into posses- 
sion, the question was whether W., the eldest son of the 
father and also heir-at-law of C. the youngest son, or Gr., 
the middle son, should have the land. There was no 
special extension of the custom to brothers. It was agreed 
by all the judges that if C. had survived the tenant for 
life, and had then died without issue, W. would have had 
the land as heir to C, " because the custom of borough- 

(r) Roberts t. Dixwellt 1 Atk. (t) Fer Brampston, G. J., and 

607, 610 ; Trash y. Wood, 4 MyL & Berkeley, J., in £eeve ▼. Malster, 

Or. 324. Cpo. Car. 410. 

(<) Eougham y. Sandys, 6 L. J. («) Gro. Gar. 410. 

Ch. 67. 



THE DESCENT OF COPYHOLDS. 141 

english extends not to brothers unless there be a special 
custom found'' ; but as the question was one regarding a 
reversion expectant on an estate for life, and as C. had 
never been seised of the land in possession, and had died 
without issue during the tenancy for life, two of the 
judges, Brampston, C. J., and Berkeley, J., were of opinion 
that G-., the middle son, should have the land as if C. had 
never lived, " for he shall make title from his father and 
take by descent from him who had the seisin of the free- 
hold, and not from any mention of him who had but the 
reversion expectant on an estate for life, for the custom 
shall be guided by the rule of the common law, and here 
there was no possesmo fratrisy But Jones and Croke, JJ., 
held that W. had the better title, for the youngest son 
being the heir in whom the estate vested by custom at the 
death of his father, it was an inheritance fixed in him, and 
the custom had its operation and was satisfied in him, 
and there was an end of the custom, and none could claim 
after but his heir : " and the youngest son only, who is in 
esse at the death of his father, shall have it by the custom, 
and not any other who shall come to be youngest after- 
wards." But the opinion in favour of the middle son has 
been sustained in later cases {x). The case of Newton 
V. Shafto (i/) illustrates the same principle. There it 
appeared that the custom of the manor of Tynemouth 
is that, if a copyholder dies leaving no son but two 
or more daughters, the eldest daughter shall have it only 
for her life, and then it shall descend to the next heir 
male, and that the wife shall have it for her f reebench for 
life. A copyholder died and his widow entered : the elder 
daughter died in her mother's lifetime, and then the widow 
died : the Court held the custom good, and that the second 
daughter should have the land for her life within the 
custom, for though she was not eldest daughter at the 

^) KeihwY. Roufden, 1 Show. 244, 249 ; Clement t. ScutUtmore, 6 Mod. 120. 
(y) 1 Lev. 172. 



142 THE LAW OF COPYHOLTO. 

death of her father, yet she was at her mother's death, 
whose estate was a continuanoe of the husband's estate till 
her death. 
D^SSb ^t' Before leaving this part of the subject, it is nQcessary 

descended ' to mention that a descended customary estate is not within 
ou^mary ^^^ provisions of the Statute of Distributions (55) as to the 
exclusion of children who have any land by settlement, or 
have been advanced by portion from the distribution of 
the personal estate of an intestate. This was decided in 
the case of LuUcyche v. Luttot/che (a), where it was held 
that a youngest son, being heir in borough-english of 
certain lands, should not be obliged to bring the borough- 
english lands into hotchpot before claiming his distributive 
share of the personal estate of his father, who had died 
intestate. 
Effect of In- "V^e may now consider the alterations which have been 
1833. ' introduced into the customs of special descent by the 

Inheritance Act, 1833, which applies to all descents and 
titles to inherit by reason of consanguinity arising after 
the 1st of January, 1834 (6) ; with an exception as to the 
effect of assurances made before that date, and the wills 
of persons dying before that date (c?). 

Before the Act the descent was in all cases to be traced 
from the person last seised, that is, the person who was in 
possession by himself or his tenant for years, or in the 
case of a freehold lease the person who had received the 
rent, or who had exercised some act of ownership. But 
now the descent in all cases is to be traced from the pur- 
chaser, that is, the person who last acquired the land 
otherwise than by descent or than by any escheat 
partition or inclosure by the effect of which the land shall 
have become part of or descendible in the same manner as 
other land acquired by descent (d) ; and to prevent un- 
necessary tracing of pedigrees, the person last entitled is 

(2) 22 & 23 Gar. II. 0. 10, 8. 6. {b) Sect. 11. 

(a) Gas. imp, Talbot (Forrester's (0) Sect. 12. 
Bep.), 276. (rf)Seot. 1. 



THE DESCENT OF COPYHOLDS. 143 

taken to be the purchaser in the absence of proof that he 
inherited, and so with regard to each preceding step of the 
pedigrees (e) ; and a person is deemed to have been the last 
entitled^ if he had a right to the land, whether or not he 
obtained the possession or receipt of the rents and profits. 
If there is a total failure of heirs of the purchaser, or of 
the ancestor from whom descent is to be traced where 
property is descendible as if an ancestor had been the 
purchaser, the descent must be traced from the person last 
entitled (/). 

The rule as to descent being traced from the purchaser 
is not to be taken as altering those special customs, of des- 
cent which are restricted to the case of a tenant dying 
seised of the land (g). 

In the case of a reversion expectant upon a life estate Deroent of 
there is no purchaser, unless there has been an alienation &^*™*°^ 
of the reversion since its original limitation ; and where 
there has been no such alienation, the rule always was, 
*^ that it descends to the heir of the person who created it, 
and this even though it were created by will, in which case 
the testator from whom it descends never held it, and the 
same rule holds where a person having a remainder or 
reversion by descent makes a lease for life, and thus 
creates a new reversion, for this will descend to his own 
heir" (A); and the Inheritance Act, 1833, has not altered 
the rule(«). 

The rule that descent shall be traced from the purchaser, Issue repre- 
or in the case of a reversion from the person who created ^^'^tf 
it, has sometimes come into apparent conflict with the rule 
that in cases of descent the issue shall represent their 
parent. Thus, if a reversion or remainder of gavelkind 
lands, while expectant on a life estate, were to descend to 
several sons of whom one died leaving issue, and if the 

(e) Sect. 2. (A) Burt. Comp. s. 306 ; Doe d. 

(/) 22 & 23 Vict. c. 36, ss. 19, 20. Andrew v. Sution, 3 B. & P. 643. 

(^) Mug^leUm ▼. Bamett, 2 H. & (i) Faterton y. Milh, 19 L. J. 

K. 663. N. S. Ch. 310. 



144 THE LAW OF COPYHOLDS. 

rule afl to traoing descent were taken literally, tHe issue of 
the deceased son would have to share with the surviving 
sons the portion which would have been taken by the 
deceased son ; but in such a case it is held that the rule of 
representation is to be preferred, and that it is not neces- 
sary to trace the descent afresh, but the issue will be taken 
for every purpose as standing in the place of their parent. 
" It seems that the meaning of the Act was to leave the 
law of inheritance, in cases absolutely plain, just as it 
found them, and only to lay down rules where there was 
any doubt existing "(A:). 

The rule of representation applies to aU customary 
descents of copyholds, and of freehold lands subject to 
special customs. Thus where the custom was, that if a 
man died without male issue, his eldest daughter should 
have the land, and the tenant had no issue male but 
several daughters, the eldest of whom died in the lifetime 
of her father, leaving issue a daughter, it was held that 
the granddaughter was within the custom, and should 
have the land by descent upon the death of her grand- 
father (/). Again, where A. had five sons, the yoxmgest 
of whom died in his lifetime leaving issue a daughter, and 
afterwards A. purchased borough-english lands, and died 
seised thereof, and his fourth son entered, it was held that 
the daughter of the fifth son should inherit by right of 
representation (m). So with gavelkind lands, the issue of a 
son or a collateral heir will stand in the place of the parent, 
" nor does the right of representation stop at the children 
of a brother by analogy to the Statute of Distributions," 
as was in one case suggested. Where a man died intestate 
and without issue, seised of gavelkind land, leaving a 
nephew and two sons of a deceased nephew, it was held 
that the latter were entitled by right of representation to 

(k) Fer Bhadwell, V.-C, in 623; see Loeker, Colman, I Kjl, & 

Cooper V. Franee, 19 L. J. N. S. Ch. Or. 423. 

313, 814. (m) Clement v. Seudamore, 6 Mod* 

(I) Godfrey v. Bulloek, 1 Bo. Abr. 120. 



THE DESCENT OP COPYHOLDS. 145 

the share which their father, if living, would have taken (n) . 
The right of representation is allowed as a general inci- 
dent of descents to operate in face of the customary prefer- 
ence of the youngest in the same way as it operates on the 
common law rule of primogeniture. " The same principle 
must be appUed, whether the custom be that of gavelkind 
or borough-english. Ton must ascertain what the custom 
is, and then apply all the rules of descent to the custom so 
ascertained "(0). 

"Under the old law of inheritance, a limitation in a deed Liinitation tp 
or will to the heirs, or heirs of the body, of A. B., was 
construed in favour of the heir at common law, though the 
land were descendible in another course by custom. " The 
heir (it was said), to have the benefit of a purchase, must 
not only be heir to a special intent, but the general and 
perfect heir, the heir at common law; and therefore if 
lands of the nature of gavelkind are granted or devised to 
A. for life, remainder to the heirs of B., who has issue four 
sons, and dies, and afterwards the tenant for life dies, the 
eldest son of. B. shall have the land"(j9). But the cus- 
tomary heir was entitled wherever the word "heirs" was 
a word of limitation, as, to A. B. and his heirs. When it 
was a word of purchase, as, to the heirs of A. B., the donor 
was presumed to intend the heir at common law, unless 
there was something to show the contrary. Bat if special 
words are added describing the customary heir, the pre- 
sumption will fail, and then, though the subject of the 
gift be common law land, yet the customary heir will be 
preferred. Accordingly, in Netccamen v. Barkham {q)y it 
was declared by Lord Cowper, L. C, that if one, having 
borough-english land and also lands at common law, 
devises the latter to his heir by the custom of borough- 
english, this would be a sufficient description of the yoimgest 
son, though not heir at common law, and though the devise 

(») Hwfk y. Hook, 1 Hem. & M. (p) Co. Litt. 10 a; Bob. Gar. 

43. 156. 

(0) Ibid, per Page- Wood, V.-C. iq) 2 Vera. 729, 732. 

E. L 



146 



THE LAW OF COPYHOLDS. 



Immediate 
inheritance 
between 
brothers. 



Half-blood. 



was not of the customary land, but of common law land, 
and that a like devise to gavelkind heirs would entitle all 
the sons. 

But, under the present law, it seems that the customary 
heir may take the land in some cases where formerly he 
would have been excluded. When land is devised to the 
heir, or person who shall be the heir, of a testator, such 
heir will take as devisee, and not by descent ; and when 
land is limited by an assurance, other than a will executed 
after the 31st of December, 1833, to the person who conveys 
the land or his heirs, such person is considered to have ac- 
quired the land as a purchaser by virtue of the assurance, and 
shall not be considered to be entitled thereto as his former 
estate (r) . And when any person acquires land by purchase 
under a limitation to the heir or heirs of the body of his 
ancestor in an assurance executed afterthe 31st of December, 
1833, or under any limitation to the same effect in a will 
of a testator dying after the same dat«, the land will 
descend, and the descent will be traced as if the ancestor 
named in such limitation had been the purchaser (s). 

The effect of the custom of borough-english has also, in 
certain cases, been altered by the abolition of immediate 
descent between brothers and sisters (t), and the admission 
of lineal ancestors into the line of inheritance (u). If a 
man dies seised of land in borough-english, leaving no 
issue, with two elder brothers, the younger brother vdll 
now inherit as heir to the father ; but formerly the elder 
brother would have inherited immediately, unless there 
were a special custom extending the peculiar descent to 
brothers (x). 

The exclusion from the inheritance of relations by the 
half-blood under the old law was formerly considered to be 
a special inconvenience in lands of the nature of gavelkind 



(r) 3 & 4 Will. IV. 0. 106, 8. 3. 
(«) Ibid, s. 4. 
{t) Ibid. 8. 6. 
(w) Ibid. 8. 6. 



{x) See Heeve v. Malaier, Cro. 
Car. 410 (where there was no ques- 
tion oipossessio/ratris), and dement 
V. Scudamorcy 6 Mod. 120. 



THB DESCENT OF COPYHOLDS. 147 

or boroiigh-engllBh, or subject to similar oostoms. In 
borough-esglish lands it was noticed '^ that if thejoungest 
son by a second wife should take, the eldest son by the 
f onner wife would afterwards be excluded from the suc- 
cession, which seems a great anomaly altogether "(y). 
But now the half-blood is admitted to the succession next 
after the relation of the whole blood in the same degree 
where the common ancestor is a male, and next after the 
common ancestor if a female (s). 

In the appendix to the First Eeport of the Keal Fro- Inoonve- 
perty Commissioners wiU be found notices of the following J^^^ to 
inconveniences which arise from the continuance of the youngoet. 
custom of borough-english, many of which are, of coiu»e, 
equally noticeable in the case of lands subject to other 
special customs of descent : — The youngest son is often a 
minor when the father dies ; during the minority the land 
is inalienable, and often mismanaged, and in the case of a 
trust estate of borough-english lands a reference to the 
Court is often rendered necessary ; it is difficult to ascertain 
the limits of the land covered by the custom, and sometimes 
difficult to show the nature and extent of the custom 
clearly enough to satisfy a purchaser ; there is considerable 
ignorance and forgetfulness of the particular lands subject 
to it, so that in many cases, contrary to the intention, an 
estate settied as an entire estate has descended to different 
persons, the freeholds to the eldest son, and the copyholds 
to the customary heir; and generally, from the greater 
likelihood of long minorities, additions to the number of 
trustees and cestuis que trust on the same property, im- 
certainties respecting boimdaries and customs, &c., land 
subject to special customs of descent, whether freehold or 
copyhold, is often rendered difficult to sell or to manage 
properly (a). 

Upon the death of a copyholder intestate the heir Estate of tlio 

(y) B. P. Gomzo. 1 Bep. App. (a) B. P. Gomm. 1 Bep. App, 

351. 254, 286. 

(«) 3 & 4 WiU. lY. c. 106, B. 9. 

l2 



148 THB LAW OF CX)PYHOLDS. 

heir before immediately becomes the tenant, and may act as owner, as 
a ttanoe. agajj^ ^U the world except the lord, before he has been 
admitted. ^^Admittances upon surrender," says Lord 
Ooke, " differ from admittances upon descents in this, that 
in admittances upon surrender nothing is vested in the 
grantee before admittance no more than in volimtary 
admittances ; but in admittances upon descents the heir is 
tenant by copy immediately upon the death of his ancestor, 
but not to all intents and purposes ; for, peradventure, he 
cannot be sworn of the homage before, nor maintain a 
plaint in the nature of an assise (b) in the lord's court 
before, because till then he is not complete tenant to the 
lord, no further than the lord pleases to allow him for his 
tenant. So that to all intents and purposes the heir, till 
admittance, is not complete tenant, yet to most intents, 
especially as to strangers, the law takes notice of him as of 
a perfect tenant instantly upon the death of his ancestor, 
for he may enter on the land before admittance, take the 
profits, punish any trespeiss done upon the ground, sur- 
render into the hands of the lord to whose use he pleases, 
satisfying the lord his fine due upon the descent, and by 
estoppel he may prejudice himself of his inheritance " (c). 
In no other case, it may be mentioned, can a person who 
is not in the customary seisin bind his future estates by 
way of estoppel (rf), and so a surrender by a mere heir- 
apparent of a copyholder in the lifetime of his ancestor will 
not estop the heir of such surrenderor from clainung against 
the surrenderee (e). An heir may devise copyholds des- 
cending to him, although he has neither been admitted 
nor has paid the lord's fine upon the descent (/) . In cases 

(b) Abolished by 3 & 4 Will. IV. (e) Goodtitle d. Fijodkn^ y. M<fr8e, 

0. 27, B. 36. 3 T. K. 365. 

(e) Co. Copyh. a. 41 ; Brown' 8 (/) Wright y. Banhi, 3 B. & Ad. 

date, 4 Bep. 21a, 22b; Clarke v. 664; King y. Turner, 1 M7I. & K. 

Fmnifather, 4 Bep. 23 b. 456 ; Doe d. Ferry y. Wihon, 6 N. 

(d) Doe d. Blaektell y. Ibmkins, k M. 809. 
U East, 185. 



THR DESCENT OF COPYHOLDS. 149 

of copyholds of inheritanoe, the heir of a copyholder may, 
hefore admittance, enter upon the land and take the profits, 
and, as against all persons hut the lord, may hring an 
action to recover the land, or for trespass hy a stranger (^), 
and after admittance may hring trespass against the lord 
for acts done before the admittance {h). He may make a 
customary lease (*) for the period warranted hy the custom, 
and generally act as owner, except as against the lord. 
"All these incidents seem almost necessarily to attach, 
because the lord might not hold a court for a considerable 
time after the death of the former tenant, and if the heir 
coidd not do these things he would not have the full 
enjoyment of the estate "(A:). If the heir dies before 
admittance his heir may enter and take the profits, and 
may sue for trespass before his admission (/) ; and in the 
like case his widow will have her freebench (w), and the 
husband of an heiress dying before admission will have his 
customary estate by the curtesy (w). If the customary 
estate is not an estate of inheritance, but one to which the 
tenant is admitted during the joint lives of himself and the 
lord, with a tenant right of renewal, the heir will have 
no estate before admittance, even after entry; and so, 
before admittance, he cannot bring an action to recover the 
land against a stranger (o). "I conclude," says Lord 
Coke, " that an admittance is principally for the benefit of 
the lord to entitle him to his fine, and not much necessary 
for strengthening the heir's title ; then will some say, if 
the benefit which the heir shall receive by the admittance 
will not countervail the charges of the fine, he will never 

(^) Doe d. Taylor v. Crup, 8 A. (/) Clarke v. Pennifather, 4 Rep. 

& E. 779 ; Doe d. Hamilton v. Clift, 23 b. 
12 A. & E. 566. (m) Watk. Deecents, 49 ; Gilb. 

(A) Bametl v. Guildford {Earl of) , '^®^- ^88. 
11 Exch 19 W -0<'^ d. Milner v. Brighitaenf 

10 East, 683. 
(0 BuUoek y. Dibley, Moo. 696. ^^j ^^^ ^ Hamilton y. Clift, 12 

{k) Per Cur. in Doe d. Hamilton A. & E. 666 ; Doe d. Dand t. Thomp- 
Y. Clift, 12 A. & E. 566, 572. ton, 13 Q. B. 670. 



loO THE LAW OF COPYHOLDS. 

oome in and take up his copjhold in court, and so defeat 
the lord of his fine. I assure myself, if it were in the 
election of the heir to be admitted or not, he would be best 
contented without admittance, but the custom in every 
manor is compulsory on this point, for, either upon pain of 
forfeiture of their copyhold or of incurring some great 
penalty, the heirs of copyholders are forced in every manor 
to come into court and be admitted, according to the 
custom, within a short time after notice given of the 
ancestor's decease " {p). 
Heir may Upon the ground that the heir had a good title as 

taDce. against everyone but the lord, the Court of Queen's Bench 

used to refuse a mandamus against the lord to admit the 
heir, considering it unnecessary (q) ; but the practice in 
this respect has changed, and now a mandamus to compel 
the lord to admit will be granted, because the heir before 
admittance is at some disadvantage as between himself 
and the lord, seeing that he cannot, if admittance is refused, 
sit on the homage at the court, or otherwise act there as 
one of the tenants, and generally because the heir has a 
right to insist upon admittance to make himself a complete 
copyholder (r). In the case of Qarbutt v. Trevor («), how- 
ever, it seems to have been thought that the steward of a 
manor, where a very exceptional custom prevailed,. might 
have a right to consider all the legal, equitable, and other 
circumstances before determining to grant admission to 
the heir of one of the customary tenants. 
Admittance of The admittance of the heir, as in the case of a sur- 
effected.^ renderee abeady mentioned, may be either express and 
formal, or by implication, as where the lord swears him 
upon the homage, or does some other unequivocal act of 
accepting him as a tenant. On this point, Calthrop has 
some useful remarks : '^ Admittance may be in three 

{p) Co. Copyh. 8. 41. B. C. C. HI ; B$x v. W%U<m, 10 

\q) R0X V. *Refmeti, 2 T. R. 197. B. & C. 80. 

(r) Sex Y, Brewers* Co, (Master, ^, (s) 15 C. B. N. S. 560. 
of), 3 B. & C. 172; J2<y. v. Dendy, 



THE DESCENT OF COPYHOLDS. 151 

manner of ways : (1) an express admission by the words 
entered on the court rolls *unde admissus est tenens;' 
(2) or by acceptance or implication, as if the lord will 
accept the rent by the hands of a stranger ; (3) by ad- 
mitting one copyholder, in some cases the lord shall admit 
another by implication to some purposes {i. e.^ tenants in 
remainder) ; and to these three may be added (4) the entry 
of the son after the death of his father, and of the tenant 
in dower (freebench) after the death of her husband, which 
is lawful without admission till the ne;Kt court, and then 
they must pray to be admitted" (t). But in regard to the 
acceptance of rent by the lord, it has been doubted whether 
such an act does amount to an admittance, because it is of 
an ambiguous nature (w) ; and it seems that before it could ^f^ ^' '^^*'- 
be relied on as an implied admission, the rent would require 
to be expressly accepted from the heir, or surrenderee, in 
the character of a copyholder. 

As already mentioned with reference to admittance who may 
upon a surrender, since the year 1841 it has been lawful *^"^**- 
for the lord, steward, or deputy, or person filling any of 
those capacities, whether rightfully or not, to admit at any 
time or place, within or without the manor, and without 
holding a court, any person as tenant to any lands parcel 
to the manor, to be held by copy of court roU, or according 
to the custom of such manor, to and for which such person 
shall for the time being be entitled to be admitted. Every 
admission is forthwith to be entered on the court roUs, and 
every such entry is to be taken as having been made on 
a presentment by the homage ; the steward or deputy 
being entitled to the same fees as if the entry had been 
made after presentment, which is now unnecessary for the 
validity of the admission (or). The admission cannot be 
postponed in order to compel payment of the fine, which 

(0 CalUir. Copyh. 47 ; see JTilson Doe d. Tarrant v. Hellier, 3 T. R. 

y. AUen, 1 J. & W. 61 1, 613. 162 ; and Gilb. Ten. 232. 

(fi) See Frasel v. WeUh, Cro. Jao. (^p) 4 & 6 Yiot. o. 35, as. S8— 90. 
403 ; Barker v. Dmham, Sty. 146 ; 



152 



THE LAW OF COPYHOLDS. 



Heir bound 
to come. 



Seumre 
quousque. 



does not aoorue due to the lord until the tenant has been 
admitted (^). 

The heir is bound to come to the lord for admittanoe 
within a certain tune, usually a year and a day, which 
is fixed by the custom of the manor. If no particular 
time is ited by the cuatom, he xnuet appL upon 
proclamation made at three successive courts for him to 
come and take the estates ; and if he does not appear, 
the lord may seize the land quomque^ and enjoy the rents 
and profits imtil the heir comes for admittance (s). The 
seizure quomque is rather in the nature of a process for 
recovering the fine than in the nature of a forfeiture (a) ; 
but in some manors there are customs that after neglect 
or refusal to appear within a certain time, the land shall 
be absolutely forfeited ; and these customs have been held 
reasonable, though proceedings imder them will not be 
allowed without the strictest proof of the existence of such 
a custom and of all steps towards the forfeiture having 
been properly taken. " The severity of the law in these 
as in all other cases of forfeiture warrants the courts in 
taking care that there is the greatest accuracy in the lord's 
proceedings .... A general forfeiture of a copyhold estate 
does not accrue without a custom to warrant it. In such 
cases, the lord has only a right to enter into possession to 
satisfy himself of the injury he sustains for want of a 
tenant ; he can only retain the possession quousque. And 
if the lord seizes absolutely, having only a right to seize 
quausque^ there is a defect in the seieure which vitiates the 
whole "(6). But although the lord has, after due pro- 
clamation, seized qtiOKsque for want of an heir, he is not 
entitled to hold the land against the heir on the mere 
proof of a devise to persons who do not claim admittance, 



(y) £eff. T. WelletUy, 2 E. & B. 
924. 

(2) Loe d. Twining y. Muwott, 12 
If. & W. 832. 



(a) Doe d. Bover y. Tmeman, 1 B. 
ft Ad. 736. 

(h) Per Ld. Elenyon, 0. J., in 
Doe d. Tarrant y. EelHer^ 8 T. B. 
162, 169. 



THE DESCENT OF COPYHOLDS. 



158 



ior seizure quou^qne does not give the lord an adverse title, 
as he seizes only till the tenant oomes in {c). When the 
lord seizes quousquey he is not bound to account for the 
rents of the estate received during his possession (d). On 
a seizure quousquey the bailiff shoidd require the occupiers 
to attorn to the lord; but if they refuse or make any 
resistance, the lord would have to bring an action against 
thein for recovery of the land(g). The proceedings for 
the seizure quousque should take place within a reasonable 
time after the death, for it seems that the lord's right of 
entering upon and seizing the lands is an "entry or 
distress" within the meaning of the Statutes of Limita- 
tion (/) ; but it would appear that the mere lapse of the 
statutory*period, without the lord's seizure, will not alter ^'V^ ^ ^^. Au, 
the tenure of the land ((/), for enfranchisement has never 
been presumed except in cases where there has been 
evidence of long enjoyment of the property as free- 
hold (A). 

The proclamations for an heir may be made in general Frodama- 
terms (i) ; and it is not necessary to specify the particular 
lands of which the former tenant died seised {k). The 
proclamations have to be made at customary courts of the 
manor ; but if a court is held under the provisions of the 
Copyhold Act, 1841, without the preseiioe of copyhold 
tenants, the proclamation will not affect the right of any 
person whose interest may be affected by it, unless notice 



tioii0. 



{e) Doe d. Ze Keux r. Rarrison, 6 
Q. B. 631. 

{d) Underhill v. Kehey^ Gro. Jac. 
226. 

(e) Lord Salithwry*^ Cau^ 1 Lev. 
63 ; 8. C, as Fateton v. Danges, 1 
Keb. 287. 

(/) Doe d. Tarrant v. Bellier, 3 
T. B. 162 ; In re Lidiard and Jack- 
son's and BroadUy*s Contract^ 42 
Ch. Diy; 264, 268 ; 8 & 4 V^iU. IV. 
c. 27, 8. 2 ; 37 & 38 Vict. o. 67. 

{ff) See Scriv. Copyh. 287. 



(A) See Soe d. Johnson y. Ireland, 
11 East, 280; Turner v. West 
Bromwieh Union {Guardians of), 9 
W. B. 165 ; In re Lidiard and 
JaeksovCs and BroadleyU Contract^ 
42 Ch. Div. 264. 

(») Doe d. Whitbread v. Jenney^ 6 
East, 622. Forms of prodlama- 
tions and of a precept to seize 
quousque will be found in the Ap- 
pendix, post. 

(*) Doe d. Tarrant y. SeUierf 3 
T. B. 162, 164 n. 



n 



164 THE LAW OF COPYHOLDS. 

that the proclamation has been made, is duly served upon 
him within one month after the holding of the court (/). 
Until proclamation is made, the heir is not obliged to 
claim, and there can be no seizure quousque before three 
proclamations have been duly made (m). A custom to 
seize the land as absolutely forfeited is not good as against 
an heir who is in prison, or beyond seas, at the ancestor's 
death, or against a person under disabiUty (n). 
Infant heir. As has been already mentioned, every one is now entitled 
to take admittance by attorney (o), but an infant heir 
may also claim the benefit of the provisions of the Act 
11 Geo. IV. & 1 Will. IV. c. 65, which enacts that 
every infant, either by his own appearance, or by his 
guardian or attorney, shall come to one of the next three 
courts after any descent entitling him to admittance, and 
shall take admittance {p) : and if he is without guardians 
he is authorised to make an attorney by writing (y). In 
default of such appearance, the lord or steward, after 
three courts with proclamations, may appoint and admit 
an attorney for the special purpose, and set a proper 
fine (r) ; and if such fine be not paid upon a demand in 
writing within three months, the lord may enter on the 
copyhold and satisfy himself of his fine, costs and expenses, 
paying the surplus profits to the person entitled to the 
land(s). The lord is required to deliver up possession 
when his charges are satisfied (^), and the guardians of 
infants, and their executors and administrators, may enter 
and reimburse themselves for any fine and other charges 
so paid to the lord, notwithstanding the death of the copy- 
hold tenant {u). The Act contained similar provisions as 

{/) 4 & 6 Vict. 0. 35, 8. 86. {q) Ibid. s. 4. See 60 & 51 Vict. 

(m) Rumney v. Eve^ 1 Leon. 100 ; c. 73, s. 2. 
Anderson y, Eeywood, 4 Leon. 38. (r) 11 Geo. IV. & 1 Will. IV. 

(fi) King y. DiUitton, 3 Mod. c. 65, s. 5. 
221 ; Lechfor^i (Uue, 8 Bep. 99 a. («) IhxA, 8. 6. 

(o) 60 & 51 Vict. 0. 73, s. 2. if) Ibid, 8. 7. 

\p) 11 Geo. IV. & 1 Will. IV. (tt) md. s. 8. 

c. 66, 8. 3. 



THE DESCENT OF COPYHOLDS. 166 

io married women, and also enacted that no infant or 
married woman should forfeit any copyhold land for his 
or her neglect or refusal to go to any court to be kept for 
the manor, and to take admittance to the land, or for the 
omission, denial, or refusal of such infant or married 
woman to pay any fine imposed or set upon his or her 
admittance to such land {x)y and it enables the tenants to 
controvert the legality of the payment of any im warranted 
fine (y). It will be observed that if the infant comes into 
court he may be admitted in person. With regard to 
married women, it will be remembered that the Married 
Women's Property Act, 1882 (2), provides that every 
woman married after the Ist of January, 1883, is entitled 
to hold and dispose of all real property belonging to her 
at the time of the marriage, or afterwards acquired by or 
devolving on her, as if she were a feme sole {a) ; and that 
every woman who was married before that date may hold 
and deal with as a, feme sole all real property her title to 
which, whether vested or contingent, and whether in 
possession, reversion, or remainder, accrued to her after 
that date (b). In many cases, therefore, it is presumed a 
married woman will not require to daim the benefit of the 
provisions of the Act 11 Geo. IV. & 1 Will. IV. c. 65. 

The Act last mentioned contained provisions regarding Lunatic heir 
the admittance of lunatics similar to those already men- 
tioned. These provisions have now been embodied in the 
Lunacy Act, 1890 (c), sect. 125 of which provides that 
where a lunatic so found by inquisition is entitled to be 
admitted tenant of copyhold land, the committee of his 
estate may appear at one of the three next courts held for 
the manor and offer himself to be admitted tenant in the 
name and on behalf of the lunatic, and in default of his 
appearance or of his acceptcmce of admittance, the lord. 



{x) Ibid. 8. 9. (a) Ihid. 8. 2. 

Isf) Ibid. 8. 10. (h) Ibid. 8. 6. 

(z) 46 & 46 Vict. c. 76. [e) 63 Vict. o. 6. 



156 THE LAW OF COPYHOLDS. 

or his steward, may, after three oourts duly held and pro- 
olamations thereat regularly made, at any subsequent 
court appoint any fit person to be attorney for the 
limatic for that purpose only, and by that attorney may 
admit the lunatic tenant of the land according to such 
estate as the lunatic is legally entitled to. 

On the admittance or enrolment of an heir as tenant, he 
is entitled to receive from the steward of the manor a 
notice as to his right to enfranchise the land {d). 
Forfeitare for In a case which bears strongly upon the question of the 
eir 8 neglect, j^gj^'g forfeiture for neglect of appearance, a copyhold had 
been devised to six persons upon certain trusts. One of the 
devisees offered to be admitted and to pay his share of the 
fine; the other five disclaimed; but the lord would not 
admit without the whole fine, and seized quousqm. The 
Court held that the lord ought to have admitted the 
devisee who offered himself, and then proceeded to recover 
the fine which he claimed, and that he had been too hasty 
in entering for a supposed forfeiture before admittance, for 
a seizure quomque was till somebody comes for admittance, 
and one had come and offered to be admitted ; so that it 
was clear the lord had no right to seize {e). 
Seizure Inasmuch as coparceners make but one heir, the admit- 

tuSmd^ tance of one is the admittance of all the rest (/) ; and 
sl^reB- therefore if one appears, the shares of the others cannot be 

seized quousque; and if one of several co-heirs or co-heiresses 
be imder disability, and none of them claim, the lord 
cannot seize the whole estate, but only the shares of those 
who are sui Juris; and it seems in this case that he might 
seize the shares of the heirs who are suijurisy although he 
can enforce the admittance of the persofl under disability 
imder his statutory powers {g). 

(rf) 60 & 61 Vict. 0. 73, s. 1; (f) Garland Y,J$hyU,2'Bing,2n. 

ante, p. 70. (^) See Doe d. Tarrant y. SeUier^ 

{e) Roe d. Aehtm v. Hutton^ 2 3 T. B. 162. 
Wilfl. 162. 



( 157 ) 



CHAPTER VI. 

INCIDENTS OF COPYHOLD ESTATES. 

In this chapter it is proposed to treat of the incidents Incidents of 
which usually attach to the copyholder's estate, including ^Py^^^- 
the widow's freebench and the husband's customary estate 
by the curtesy, and the manorial dues, such as fines, heriots, 
reliefs, and the like, to which the lord is usually entitled 
by custom. 

There is no general custom in copyholds for the widow Freebench 
of a copyholder to have a provision analogous to dower, or *^^ cnrteBj. 
for the widower to have an estate by the curtesy (a) ; but 
by the customs of most manors the widow has a provision 
called her freebench or " widow's estate," which in some 
points resembles dower ; and in many places the widower 
has by custom an estate in his wife's lands analogous to 
an estate by the curtesy in freeholds, which is called his 
customary curtesy or " man's freebench." 

1. Freebench. 

In the case of freehold lands, where dower had not been Freeholds, 
barred, the widow was entitled to an assignment by the heir 
for her life of one-third in value of the tenements of 
which her husband at any time since the marriage was 
seised, or to which he was entitled as sole tenant of a legal 
or equitable estate of fee simple or fee tail, which a child 
bom of the marriage might possibly inherit (J). By the 

(a) See Broum^i Cote, 4 Bep. 21 a ; {b) Litt. ss. 36, 53 ; R. P. Comm. 

Sivit'iCau, 4 Bep. 22b; Doe d, I Bep. 16—19; 3 & 4 Will. IV. 

Hamilton v. Clift, 12 A. & E. 666, o. 105. 
573. 



168 THB LAW OF COPYHOLDS. 

cufltom of gavelkind in Kent, the dower amounts to one- 
half in value, but is lost hj the birth of an illegitimate 
child, or by a second marriage (c) ; and this is the ease 
even if the land has been made descendible to the eldest 
son by a disgavelling Act(t/). In lands of burgage 
tenure the dower may by custom include the whole of the 
husband's lands, or by other customs be restricted to a 
third part, or a fourth, or any other fraction, and may 
continue during her life, or be forfeited upon a second 
marriage (e). In the Forest of Pamber the usage at one 
time was that the widow of a tenant in capite dying 
without issue should have the whole land for her life, but 
should forfeit two-thirds upon a second marriage (/) ; 
and in freehold lands of the tenure of ancient demesne it 
is not unusual to find similar customs prevailing. 
Copyholda. j^ j^q cag^ of copyholds, however, a special custom is 

necessary to entitle the wife to take any interest in her 
husband's lands after his death. The Dower Act, 1833 (^), 
does not apply to copyhold lands {h) imless they are enfran- 
chised or the manorial rights to which they may be subject 
are extinguished under the provisions of the Copyhold 
Acts, in which case the lands become subject to the ordinary 
law as to dower {%), When copyholds have had their 
services commuted under the Copyhold Act, 1841, though 
the customary tenure remains, the lands axe also subject to 
the ordinary law as to dower, and cease to be subject to 
any custom relating to dower or freebench (Jc) . Accordingly, 
in the case of copyholds, where a widow is entitled to an 
interest in the lands which belonged to her husband, the 



{e) Bob. Gav. 205, 206; Elton, {/) Inquit, p, mortemMl^^'lll- 

Ten. of Kent, 42, 86—90. No. 27 b. 

(rf) Wiseman y. Cotton, 1 Sid. 136, {^) 3 & 4 Will. IV. o. 106. 

137 ; Elton, Ten. of Kent, 386. (A) SmUh v. Adam, 18 Beav. 499. 

ifi) Litt. 68. 37, 166 ; Co. Litt. (i) 4 & 6 Viot. o. 35, s. 81 ; 16 & 

83b, 111 a; Fiizb. Nat. Brev. 160. 16 Viot. o. 61, b. 34. 

(*) 4 & 6 Viot. o. 86, 8. 79. 



INCIDENTS OF COPYHOI.D ESTATES, 169 

quantity and duration of that interest and the lands upon 
which the right attaches are in everj case determined by 
the custom. By the customs of various manors the free- 
bench can only be claimed on certain conditions and sub- 
ject to various restrictions, as that the widow must have 
been the first wife of the copyholder, or that she must have 
been only once married, or must be the mother of the heir, 
or must claim within a certain time, as a year and a day, 
and the like (/). As a general rule the widow's estate Duration of 
lasts only during widowhood, being at once determined by ®* 
a second marriage. In some manors it is also forfeited for 
unohastity (m). 

As to the quantity of the estate taken by the widow, the Qnantity. 
customs of those manors where the copyholds are held as 
in gavelkind will give her the half, and in copyholds for 
lives she generally takes the whole {n) : elsewhere the 
custom gives a third part, or some other fraction, for her 
widow's estate. In some manors she can claim nothing ; 
in others the marriage makes her tenant by entireties with 
her husband of all his land with a right of survivorship ; 
and, as already has been noticed, there may be a custom to 
give the inheritance to the widow in lieu of dower, as in 
the manor of Taunton Deane (o). 

Dower at law extends to almost every kind of inherit- ^ "^^^^ *^«- 
ance, including many incorporeal hereditaments, as ad- 
vowsons, rents, profits of fairs and markets, franchises, 
&c. [p) ; and a woman is dowable of a reversion expectant 
on a term of years, because her husband was seised of the 
freehold and of the rent as incident to the reversion (q). 
But the widow of a copyholder is in general confined to 

(/) See Watk. Copyh. ii. c. 3, (m) See Chantrell y. Mandall, 1 

and the cnstoms of yarious manors Ley. 20. 

collected in the Appendix to that (o) See Locke y. Southwood, 1 

work. Myl. & Cr. 441. 

(m) See Oland y. Burdtoick, Cro. {p) Go. Litt. 32 a ; Howard y. 

Eliz. 460, and Wheeler' 8 Case, 4 Cavendish^ Cro. Jac. 621. 

Leon. 240. {q) Bates y. Bates, 1 Ld. Baym. 

326. 



160 THE LAW OF COPYHOLDS. 

the land of whioh her husband died actually possessed (r). 
If the copyholder makes a lease according to the custom, 
his widow cannot set it aside («). ^' It seems to me," says 
Ch. B. Gilbert, ^' that she shall not in this case be endowed 
of the third part of the rent and reversion, because customs 
ought to be strictly pursued, and that is only to be endowed 
of land ; yet it seems that after the lease is ended she shall 
be endowed, for the husband died seised, the possession of 
his lessee being his own possession ; but it was agreed in 
this case {Fareley*8 Case) that by special custom the widow 
might avoid the lease" (^). And there may be a special 
custom that the widow shall have freebench in the rents, 
as in the manors of West Sheen, Petersham, and Ham in 
Middlesex. 
Indboate III -aio^ places the widow's estate is confined to the lands 

bench. of which the husband died tenant, but in some manors she 

may claim freebench out of all the copyholds of which her 
husband was tenant at any time during the marriage, as 
in the manors of Thombury in Gloucestershire and Dod- 
dington in Shropshire. In these cases the wife's right or 
inchoate title commences at the marriage, or on the hus- 
band's acquisition of the property after the marriage, unless 
it is conveyed to uses for his benefit similar to the ordinary 
uses to bar dower. By the custom of the manor of Chel- 
tenham, as settled by a private Act (w), the widow of a copy- 
holder is entitled to have for dower one-third part of all 
the customary lands of which her husband was tenant during 
the marriage, unless the lands have been aliened during 
the marriage with the consent of the wife after being didy 
examined in court according to the custom {x) ; and it 
has been held that if the lands are aliened by the husband 
alone, without the wife having been examined in court or 

(r) Benton v. Scott^ 12 Mod. 49 ; Sdlithury d. Cooke v. Eurd^ Cowp. 
Godwin y. Winemorey 2 Atk. 526. 481. 

(*) Fareley'a Cote, Oro. Jao. 36. («) 1 Car. I. o. 1 (Priv.). 

W Gilb. Ten. 321; and see ^^^^.T^'^'^^lf^'' ^t: 

^ ' and Stddell v. Jenner, 10 Bing. 29. 



INCIDENTS OF COPYHOLD ESTATES. 161 

having joined in the surrender, and are at the death of the 
husband in the possession of several persons, whether by 
the immediate act of the husband or the act of his alienee, 
dower must be assigned as to one-third of the lands of 
every such person in possession (y). The rule that " dying 
seised " is not essential in the case of dower claimed out of 
gavelkind lands applies to freeholds of that tenure (z), and' 
not to copyholds. 

Dower does not attach upon lands of which the husband Joint tenan- 
was seised as jjoint tenant with another (a) ; but by the ^^^' 
customs of some manors the widow of a joint tenant for 
lives may be entitled to hold during her widowhood with 
the surviving tenant or his widow, and in some cases of 
the same kind the two widows may hold as joint tenants 
with benefit of survivorship, as in the manor of Dawlish in 
Devon. 

The general rule is that the widow of a tenant in tail Tenancies in 
of a copyholder will be entitled to freebench though there 
is no special custom as to the freebench of widows of 
tenants in tail, but only as to the freebench of widows of 
tenants iibfee ((). 

Again, the privilege of freebench does not show that the Tenanciea for 
copyhold estate was an estate of inheritance, " for a copy- 
holder for life may have in some instances such an excres- 
cence growing out of his estate " (c) ; and it is not imcom- 
mon for the widow of a copyholder for lives to hold his 
land for her life or widowhood as a continuance of the 
husband's estate (d). 

There is no freebench of a merely equitable estate {e) ; Equitable 
and the widow of a trustee will not be allowed to claim ^ 



(y) 2)0$ d. SiddeU y. Gwinnell, 1 {e) Mardiner y. Elliott, 2 T. R. 

Q. B. 682. 746. 

(z) Davie* y. /&%, Gio. Eliz. 825. (d) Howard t. BaHUt, Hob. 181. 

(a) Litt. 8. 45 ; Co. Litt. 37 b, \e) Chaplin t. Chaplin, 3 P. Wms. 

185 a. 229; oTemiling Otway t. Hudson , 

{b) See Do0 d. Jhtke of Norfolk y. 2 Vera. 583, 585. 
Shnthrs, Z Dougl. 303. 



162 



•J'HB LAW OF OOPYHOLDS. 



Effect of 

snbseqaent 

admittsnoe. 



Afisignment 
of freebench. 



Necessity of 

widow's 

admittance. 



Widow's 
rights and 
remedies. 



freebench any more than dower in the case of a free- 
hold (/). 

The widow of an unadmitted heir or Burrenderee may 
however claim her freebench after the admittance of the 
new tenant; for the admittance having relation to the 
time of the surrender, when a copyhold is surrendered to 
the use of a purchaser who dies before admittance, the 
admission of the heir will supply such a seisin in the 
purchaser as will entitle his widow to freebench {g). 

The widow does not receive freebench by assignment of 
the heir, but of the lord, or the jury at a customary court; 
and she is not tenant to the heir, as in the case of dower, 
but to the lord (h). 

Where the widow is entitled to the whole of her hus- 
band's estate she may enter at once, ^' as the law casts the 
possession upon her," and she will be owner of the land 
before admittance, as against all persons except the lord (i). 
But when she is entitled to a portion only, she cannot 
enter without assignment. Her right of entry does not 
take away the necessity of admittance and payment of any 
fine which may be due to the lord by the custom of the 
manor (k). It has been argued that where the widow's 
freebench is of the whole of the copyhold and is thus a 
continuance of the estate of her husband, there is no neces- 
sity for assignment or admittance (/) ; but it should be 
recollected that even the estate of the dowager at common 
law is held to be a continuance of the husband's interest (m). 

A widow entitled to freebench will have all the remedies 
and protections, which a tenant in dower would have at 



(/) Forder v. TFade, 4 Bro. Ch. 
Cas. 520, 626. 

{ff) Vaughan v. Atkins^ 6 Burr. 
2764, 2786 ; Smith v. Adams, 18 
Beav. 499. 

{h) Gilb. Ten. 172, 173 ; and see 
Doe d. Nepmn t. Buddm, 6 B. & 
Aid. 626, 



(f) ffoward v. Bartlet, Hob. 181 ; 
Jurden v. Stone, Hutt. 18 ; Borne' 
fordr. PaekingUm, 1 Leon. 1. 

{k) Kitch. Jurisd. 242 ; Co. Oopyli. 
s. 66; ForderY, Wade, 4 Bro. Ch. 
Cas. 620, 626 ; Watk. Copyh. i. 272, 
299 ; Scriv. Copyh. 349. 

(/) Watk. Copyh. ii. 90. 

[in) Chitty, Descents, 318. 



INCIDENTS OF COPYHOLD ESTATES. , 1 63 

laWy and at equity she may have an aooount of the rents 
and profits from the death of her husband (n). She might 
have claimed the assignment of her portion by a plaint in 
the manor court analogous to the writ of dower (o) ; and, on 
the principle established by the Statute of Merton (p) and 
by the statute 16 & 17 Car. II. c. 8 {q)y she may sue for 
her arrears of freebench or damages in respect thereof. 
By the Limitation Act, 3 & 4 WiU. IV. c. 27 (r), the suit 
can only be for six years' arrears or corresponding damages; 
and by sect. 2 of the same Act, as amended by the Eeal 
Property Limitation Act, 1874 («), after twelve years' 
delay she will lose her title to the estate. On another 
principle derived from the same Statute of Merton (^), the 
widow can devise the growing crops on the land held in 
freebench. As in the case of other tenants for life, if the 
tenant in freebench sows the land and dies, her executors 
will have the crops, because the estate was determined by 
the act of God ; but if the freebench is determinable by a 
second marriage, or the like, and the tenant ends her estate 
by her own act or fault, it is otherwise (w). Under the 
provisions of the Act 14 & 15 Vict. c. 25, the lessee of a 
tenant in freebench will be entitled to remain to the end of 
the current year in lieu of a claim to emblements. 

The widow's daim to freebench may be barred in How claim to 
various ways. Although at law a jointure or a provision tarred. 
in lieu of dower would not bar the wife against claiming 
freebench in copyholds, as copyholds are not within the 
Statute of XJses(:c), yet in equity a jointure, whether 
expressed to be in bar of freebench as well as of dower or 



(n) Curtis y. Curtis^ 2 Bro. Ch. {p) 20 Hen. III. c. 1. 

Gas. 620. (q) Sect. 4. 

(o) Shaw Y. Thompson^ 4 Bep. (r) Sect. 41. 

80 b ; and see Seoti y. Kettlewell, («) 37 & 38 Vict. c. 67. 

19 Yes^ jtin. 335 ; Widdowton y. (0 20 Hen. III. c. 2. 

HarringUm (Earl of), IJ. & W. 532. \u) Oland's due, 5 Rep. 116 a ; 2 

The writ of dower was aboliahed Inst. 81 ; Rob. GktY. 215. 

b7 28 ft 24 Vict. o. 126, 8. 26. (x) 27 Hen. VIII. c. 10. 

m2 



164 THB LAW OF OOPYHOLDB^ 

not, would operate as a bar, though the provision ought 
properly to be expressly stated as being in full satisf aotion 
of all dower, freebenoh, and thirds (y). Thus, where a 
husband by a settlement on his marriage, ^^ in order to 
make some provision for " his intended wife ^' in ease she 
should survive him," settled a copyhold estate upon him* 
self for life with remainder to her for life, it was held that 
the wife's right to freebenoh out of other copyholds of 
which the husband died seised was not barred by the 
settlement (z). It would appear from the judgment of Sir 
John Bromilly, M. K., in the case just referred to, that an 
intention to bar freebenoh, which attaches only on copy- 
holds of which a husband dies seised, will not be so readily 
inferred from a provision before marriage by the intended 
husband, as under the old law an intention was inferred 
as to barring dower. If the widow were an infant when 
married, she will have an election between the jointure 
and her freebenoh, though it is otherwise in the case of 
freeholds by virtue of the Statute of Uses (a). If the 
jointure be post-nuptial, she will have her election, as with 
herdowerina8iiiiilarca8e(6). Freebenoh may be barred 
by jointure even in manors where the widow is entitled in 
respect of all lands of which the husband was tenant at 
any time during the marriage (o). In the same manors 
the wife's incipient right of freebenoh may be destroyed, 
it is submitted, by a surrender to uses to bar freebenoh, 
though the Dower Act does not apply to copyholds. The 
lord would not be compelled to accept any surrender 
giving powers of appointment which might deprive him 
of his future fines, as has abeady been explained, but if 
the admittance of the surrenderee in such a case be in fee, 
the limitation of uses to bar freebenoh in the surrender 

(y) Lacff Y. Andsrson, died 1 Drury^ 3 Bro. P. 0. 492, 497, 602. 

Swaast. 398 n., 445 ; Walker y. {b) Go. LLtt. 36 b ; Vernon* t Caee, 

JFalkery 1 Yes. 54 ; Go. Litt. 36 b. 4 Bep. 1 a. 
(s) Willie V. Willie, 34 Bear. 340. (e) Buckingham (Earl of) r. Drury^ 

\a) Buckingham (Earl of) y, 3 Bro. P. Q. 492 ; 1 Boper, 470« 



INCIDENTS OF COPYHOLD ESTATES. 105 

will be inefiectual (d). In these manors it is necessary for 
the wife to join in a conveyance of land by the husband^ 
or to surrender after separate examination by the steward 
to the purchaser either before or after the husband's con- 
veyance, technical reasoning having been somewhat dis- 
regarded by the courts when its effect was to prevent 
property being alienable by reason of a wife's right 
of freebench {e) ; or after the purchaser's admittance the 
wife may release her right by deed. Every right of 
freebench, when it has accrued, may be released to the 
tenant in possession, or the widow may be admitted and 
surrender to his use ; but by the customs of some manors 
the wife can defeat her freebench only by surrender (/). 

In the more usual case, where freebench can only be 
claimed out of the lands of which the husband died in 
possession, any alienation made by him during his life will 
be preferred to the widow's claim, and she will be defeated 
in equity by his contract to alienate the land (g). Thus 
she will be postponed to a lessee or mortgagee (h), and 
will take subject to all other estates created by the hus- 
band (e). Any determination of his estate will have the 
same effect as a conveyance made by him, and the widow's 
claim will be defeated by his bankruptcy (A), or for- 
feiture (/) ; or by the enfranchisement of his estate or 
extinguishment of the copyhold tenure, for the land then 
becomes freehold, and the right to freebench will become 
a right to dower, and therefore subject to the law as to 
dower {m) ; but the grant of the freehold of a copyhold by 

(rf) Fowdrell t. Jonea^ 2 Sm. & (A) FareUyU Case, Oro. Jao. 36 ; 

G. 407. Benson v. Scott, 4 Mod. 261. 

(e) Wood T. Lambirth, 1 Ph. 8. (i) Salisbury d. Cooke v. Surd, 

(/) See PotcdreU t. Jones, 2 Sm. Co"wp. 481 . 
& G. 407. W Parker v. Bleeke, Cro. Car. 

{ff) Co. Litt. 69 b; Vaughan t. 668. 
Atkins, 5 Burr. 2764 ; Sinton t. (/) Anon., 1 Freem. 616. 

Hinton, 2 Ves. 631 ; Brown t. (m) See Dunn y. Oreen, 3 P. 

Baindle, 3 Vea. jun. 256. Wms. 9 ; ChaUoner r. Murhall, 2 

Yes. jun. 524. 



166 THE LAW OF COPYHOLDS. 

the lord to a Btranger will not destroy the widow's free- 
benoh in such land, for it still remains oopjhold (n). 
Freebench Under the old law, in cases where freebench oonld be 

derLe. ^ daimed only out of lands of which the husband died in 
possession, a surrender by the copyholder to the use of his 
will, followed by a devise, destroyed the widow's right to 
freebench (o). By the Act 65 Geo. III. c. 192, the neces- 
sity for a surrender to the use of a will was dispensed with ; 
and by virtue of the provisions of that Act, a devise by 
itself took effect as if the testator had surrendered, and 
therefore it destroyed the widow's freebench. The Wills 
Act, 1837 (p) repealed the Act of George IIL, but re- 
enacted its provisions in an extended form, and its effect 
was " to break in upon the customary law of copyholds 
for the purpose of giving an unlimited power of devise " (q). 
The same effect must, therefore, be given now to a devise 
of copyholds, as under the law prior to the passing of the 
WiUs Act ; and consequently, where a testator, who had 
married after the Dower Act came into operation, died 
entitled to certain copyholds which he had purchased, and 
by his will devised all his real estate upon trusts for sale 
and conversion, it was held that his widow was not entitled 
to freebench (r). 

2. Cmtomary Curtesy. 

Customary curtesy differs in several respects from an 
estate by the curtesy in freeholds, where the husband holds 
for his life the lands of which his wife wets actually seised 
for a legal or equitable estate of inheritance, provided he 
has had issue by her bom alive during the marriage, and 
capable of inheriting the estate {s). The husband has no 

(«) Lashmer v. Avery, Oro. Jao. (r) Lacey v. EUl, L. R. 19 Eq. 

126. 346. 

(o) Forder r. Wade^ 4 Bro. Ch. («) Co. Litt. 29 a, 32 a ; Morgan 

Cas. 620. T. Morgan, 6 Madd. 408 ; Appleton 

(p) 1 Vict. 0. 26. V. Rowley, L. B. 8 Eq. 139 ; but 

{q) P^" Jeasel, M. R., in Laeey v. see Moore v. JFebeter, L. R. 8 Eq. 

mil, L. R. 19 Eq. 346, 351. 267. 



[ 



INCIDBNTS OF COPYHOLD ESTATES. 167 

snoh estate in his wife's copyholds, except by special 
oustom (t) ; and the custom determines in each case whether 
he is to hold for his life, or to lose the land upon a second 
marriage ; whether the birth of issue is a necessary con- 
dition or not ; and whether the right may be claimed in 
the wife's equitable estate (u). But in general the custom Out of what 
is confined to the case of the woman being the legal tenant *®^®°^®"^- 
at the time of her death ; though even in this case, if the 
woman had a legal estate against all the world except the 
lord being entitled by descent or surrender before admit- 
tance, the husband will not be prejudiced by the non- 
admittance of the wife (x). The custom is taken strictly ; 
so that, under a custom that where a man marries a custo- 
mary tenant he shall have curtesy, it has been held that 
the woman must be a copyholder at the time of the 
marriage to entitle the husband to claim (j/). 

The customary curtesy is not necessarily confined to the In copyholds 
wife's copyholds of inheritance, the husband being entitled 
by the customs of a great number of manors to the copy- 
holds for liyes held by his wife, as a continuance of her 
estate. 

The quantity of the husband's estate differs according Quantity, 
to the particular custom, being in some places the whole 
of the wife's land, and elsewhere a moiety, or a third, or 
some other fraction. When he is to take the whole, his 
estate (as with freebench under similar circumstances) is 
perfect without admittance as agednst everyone but the 
lord, being a continuance of the wife's estate. Where he 
is entitled to a portion, it is said that he cannot enter 
without assignment (s) ; it does not, however, seem to be 

{t) Brown* t Case, 4 Bep. 21 a, but see Clement v. Seudamore, 1 P. 

22 a ; Riveft Cue, 4 Rep. 22 b ; Wms. 63, 69, where the authority 

Faulter v. Comhill, Cro. Eliz. 361. of this case is denied, and Gilb. 

(u) Co. Litt. 30 a, 111 a ; Hver v. Ten. 326. 
^«/(m,Moo. 271 ; Rob. Gar. 178, 179. {z) Watk. Copyh. ii. 74 ; Soriven, 

(x) Doe d. Milner t. Brightwen, Copyh. 80 ; and see cases and an- 

10 East, 583. thorities cited in notes (t) and (k), 

(y) Savage'e Case, 2 Leon. 109 ; ante, p. 162. 



168 



THE LAW OF COPYHOLDS. 



How barred. 



Fee simple by 
oustom. 



Claim by 

adverse 

possession. 



Gavelkind 
lands. 



Commnted 
copyholds. 



clear why he should not hold, in common with the heir, 
without any assignment, as has always been usual in the 
case of customary curtesy of freehold gaveUdnd lands. 

The husband's inchoate right may be extinguished by 
his joining in the wife's conveyance, or by the extinguish- 
ment of the copyhold tenure or enfranchisement of the 
tenement, or by the wife's forfeiture ; and in equity his 
light will be excluded by an express declaration that the 
land shall be free from his claim {a). 

By the custom of Taunton Deane, and formerly by 
some other customs, the husband, if duly admitted in the 
wife's lifetime, will inherit the fee simple of the copyholds 
of which she died actually in possession (6). 

In a case where the husband of a deceased copyholder 
had a good customary title to hold as tenant by the 
curtesy, his possession after the wife's death was referred 
to that title, and his heir was not allowed to set up an 
adverse title under the Statutes of Limitation, as against 
the heir of the wife claiming within twenty years after 
the husband's death, even though the husband was ad- 
mitted after the wife's death to hold to the uses of a 
settlement, which gave the estate to the survivor of them 
in fee (c). 

By the custom of Kent, the husband is tenant by the 
curtesy of a moiety of his wife's gavelkind tenements, 
whether issue were bom or not, and loses his estate by a 
second marriage {d) ; and in freehold lands of the tenure 
of burgage and ancient demesne, there are other customary 
varieties of the husband's tenancy by the curtesy. 

When copyholds have had the services commuted, under 
the Copyhold Act, 1841, they become liable to the ordinary 



{a) Bennett v. Davis, 2 P. Wms. 
816. 

{b) Shillibeer, Customs of Tann- 
ton Deane, 49; see Compton v. 
Collinton, 1 H. Bl. 334, 343, as to 



manors in Westmorland. 

(c) Doe d. Milner y. Brightwen^ 
10 East, 583. 

(d) Rob. Gay. 179 ; Elton, Ten. 
of Kent, 43, 91, 328. 



INCIDENTS OF COPYHOLD ESTATES. 169 

law of curtesy applicable to freeholds, although the copy- 
hold tenure remains {e). 

Among the other incidents of a copyhold estate which 
require consideration are guardianship, fines on admit- 
tance and alienation, customary reliefs and heriots, and 
other payments and services, which will now be mentioned 

in order. 

3. Quardianship. 

The guardianship of an infant heir of copyholds belongs, 
in the absence of custom, to the guardian in socage, or 
nearest of kin to whom the land cannot descend (/). 
Guardianship in socage cannot properly arise unless the 
infant is entitled by descent to freehold lands ; where it 
arises, it extends not only to the infant's person and 
socage estates, but also to his copyholds, unless there is a 
special custom for the lord to appoint a guardian. Where Who may be 
there is no descent of freeholds to the infant, the same »^«^*^- 
person will be guardian by custom (unless the lord has the 
wardship) as would have been guardian by socage, if the 
land were freehold (^). By the special custom of a manor 
the lord may be the guardian, and appoint the custody of 
the estate to his bailiff, or may nominate the guardian, or 
otherwise dispose of the land according to the custom of 
the manor {h) ; and where the lord has this privilege, a 
guardian appointed by the father or mother will not be 
entitled to deal with the copyholds {i). 

The guardian himself is not admitted, except as repre- Powers of 
senting the infant, and can do no personal services, as ^ 
fealty or suit of court, but will manage the land and 
account for the profits ; and he will pay the rents and dues 
to the lord. His leases will determine at the close of 
the guardianship, unless ratified by the infant {k). This 

(<f) 4 ft 5 Vict. c. 85, s. 79. (t) 12 Car. IT. c. 24, as. 8, 9 ; 

(/) EgUton^s Case, 2 Ro. Ab. 40, Clench t. Oudmore, Lutw. (Nelson's 

tit. Garde; Bex t. Wilhy {Inhabe. ed.), 371 ; 49 & 50 Vict. c. 27, a. 4. 

of), 2 M. & 8. 504, 509. (*) Roe d. Parry v. Hodgton, 2 

(ff) Go. Litt. 88b, n. 13 (Harg.). Wils. 129, 135. 

(A) Com. Dig. Copyh. K. 5. 



170 



THB LAW OP CSOPTHOLDS. 



Guardianship 
by cuBtom in 
freeholds. 



epeoies of guardianship ends when the infant attains the 
age of fourteen years, unless another age is presoribed by 
the custom (/) ; and at its termination the infant, by 
custom, may choose another guardian (m). By the statute 
11 Geo. IV. & 1 Will. IV. 0. 65, enacted in place of 9 
G-eo. I. 0. 29, the lord may appoint a guardian for an 
infant who does not come for admittance, for the purpose 
of such admittance and the payment of the fine; and 
the guardian so appointed may reimburse himself his 
expenses, and the amount of such fines, notwithstanding 
the infant's death, in the manner provided by the Act (n). 
Guardianship by custom is found in certain freehold 
lands, as by the customs of burgage tenements in various 
cities and boroughs, and by the custom of London (now 
disused in this respect), giving the guardianship of 
orphans to the Corporation. Guardianship by custom may 
also be foimd in freehold lands of ancient demesne tenure, 
and in gavelkind lands in Kent, where the infant is in ward 
until the age of fifteen (o). In the case of freehold lands, 
the customary varieties of guardianship have ceased to be 
of importance (/?). 

4. Th£ Lof'd's Fine. 
Upon the admittance of a new tenant a fine is in 
general due to the lord as a consideration for the admit- 
tance ; but in some manors no fine is due for admittances 
upon descents, or for the admittance of a widow or widower 
to the land taken as freebench or customary estate by the 
curtesy. In some manors a small fine is payable upon 
alienation of any part of the tenement by surrender (q)^ or 



(/) Wade y. Bakery 1 Ld. Baym. 
130. 

(m) Kitoh. Jurifld. 202. 

(ft) Sects. 6f 8. 

(o) As to guardianship in gavel- 
kind, see Bob. Gay. 237, 240; 
Elton's Ten. of Kent, 79—82, 327 ; 
and as to gnardianship of orphans 
in London, see 7 Vin. Abr., Customs 



of London, and Macph. Lifants, 48. 

(p) On the whole subject of guar- 
dianship, see Co. Litt. 88 b, notes 
(Harg.), and as to guardianship by 
custom, see Simpson, Lifants (2nd 
ed.), 224—236. 

{q) But see Holland y. LatuasUVf 
2 Vent. 134. 



INCIDENTS OF COPYHOLD ESTATES. 171 

under license to demise or alienate, when by the custom 
the lord is obliged to grant the desired permission. 

Fines payable to the lord by the copyholder have been Classification 
divided into three classes (r), the first being due upon the ° ^' 
death of the lord, the second on the change of the tenant, 
and the third for license to empower the tenant to alienate, 
to demise for more than one year, and the like. And so 
Lord Coke writes : " Of fines due to the lord by the copy- 
holder, some be by the change or alteration of the lord, and 
some by the change or alteration of the tenant ; the change 
of the lord ought to be by the act of God, otherwise no 
fine can be due ; but by the change of the tenant, either by 
the act of God, or the act of the party, a fine may be due 
to the lord " («) ; and " by special custom copyholders are 
to pay fines upon licenses granted unto them to demise by 
indenture, but by general custom they are to pay fines 
only upon admittance " {t). Thia is not a very convenient 
classification, the fines due upon a lord's death being in 
fact due by reason of a change in the tenancy, where the 
copyhold is held by the custom of tenant-right for the 
joint lives of the copyholder and of the lord who grants ' 
admittance, the copyholder having a tenant-right of 
renewal and fresh admittance. 

By the custom of many manors in the North, a fine is due As to fines 
on the death of the last-admitting lord, whether he was in Jea^^of ^^ 
possession of the manor lEit the time of his death or not ; and admitting 
this custom has been held good by the House of Lords {u). 

In the case of Somerset {Duke of)Y. France (a;), the 
custom was stated to be for the lord or lady of the manor 
for the time being to admit the tenants to their respective 
estates, such admittances giving them a right to hold the 
estates during the joint lives of such admitting lord or 
lady ; and that in consideration of such admittance they 
were used to pay a general fine to the next succeeding 

(r) Watk. CJopyh. i. 285. (u) Lowther r. Raw, 2 Bro. P. C. 

(«) Co. Litt. 59 b. 451. 

(t) Co. Copyh. s. 56. (x) 1 Stra. 654. 



172 THE LAW OF COPYHOLDS. 

• ■ 

lord upon the death of the last-admitting lord which 
caused a general determination of the estates. The ad- 
mitting lady htwdng .died, her husband, as tenant for life 
in remainder under a settlement, claimed a general fine, 
which was refused by the tenants on the groimd that he 
would not be entitled to it under the custom as tenant by 
the curtesy, and could not be put into a better position by 
the settlement, because that would be giving the lords a 
power to oppress the tenants by a multitude of fines, 
which the law would always prevent. But it was found 
by verdict (an issue at law having been directed), that the 
general fine was due, and the tenants were decreed to pay. 
*' It appears," said Lord King, " from the nature of the 
admittances, that upon the death of the last-admitting 
lord all the estates of the tenants, which were held under 
his admittances, are determined ; and their estates being 
so determined, it is necessary for the tenants, before they 
could have any new estate, to have a re-grant from the 
succeeding and next admitting lord, to which re-grant they 
have a right, and that right gives their estate the denomi- 
nation of tenant-right estates. Hence it appears that 
the fines which are paid are paid upon accoimt of the ad- 
mission to the new estate, and therefore that the lord, who 
has a right to admit, has a right to the fines. The lord 
grants the tenant a new estate ; in consideration of that, 
a fine becomes due to him from the tenant. The only 
question, then, seems to be, whether the Duke has a right to 
admit, and the tenants seem to agree that he has; for they 
allow that if a particular tenant dies, the Duke upon the 
admission of his heir is entitled to a * dropping fine;' 
how can he be entitled to this ' dropping fine' if he 
is not the admitting lordP and if he has a power to 
admit, and has a right to a fine upon the determina- 
tion of a particular estate upon the death of a particular 
tenant, why has he not an equal power to admit, and an 
equal right to his fines upon the determination of the 
tenant's estates in general, by the death of the last- 



INCIDBNTS OF COPYHOLD B8TATB8. 173 

admitting lord P It is very extraordinary to allow it in 
the one case and not in the other. If a partictdar tenant 
dies, his estate is detennined, and his heir must pay a fine 
to the lord; yet if the last-admitting lord dies, all the 
estates of the tenants are determined; and yet it has heen 
objected that this is midtiplying the fines of the tenants, 
and subjecting them to frequent burdens of this kind ; but 
where is the inconvenience to the tenants ? they are still * 
to hold during their own lives and the life of the lord who 
admits them; that is the very tenure of their estates. 
Nay, if a lessee for years, or any other dominus pro tern- 
poTBy should admit them, their estates would be good 
according to these admittances, during their own lives and 
the life of such lord; and the termination of the lord's 
estate would have no influence upon theirs. Indeed, if 
there should appear to be any fraud or contrivance in a 
settlement of this kind, by putting in a number of lives 
successively, on purpose to multiply the fines of the tenants, 
the court would undoubtedly interpose in such case and 
relieve them ; but in this case nothing of that kind can be 
pretended." 

Admittance fines are either certain or arbitrary. A fine Fines on 
certain may be fixed by the custom at a particular sum for *»>i<»' 
every admittance, or at so much for every acre, or the 
like ; or it may be ascertained by reference to some other 
standard, as where the tenant is to pay one year's or two 
years' value for a fine, or an amount to be fixed by the *^« certain. 
homage, or the majority of the homage, or by persons ap- 
pointed to assess the fine in case the lord and tenant dis- 
agree (y). A fine certain accordingly is a fine whereof the 
amount is either fixed or is ascertainable independently of 
tiie will of the lord, so that it is reducible to a certainty. 

(y) Perkins v. Titm, 3 Mod. 132 ; 48 ; Anon.^ 1 Freem. 494; Freeman y. 

Yetmimter Case, Noy, 2; and see PAt7/»iw, 4 M. & S. 486 ; 6 Yin. Abr. 

the GuBtoms of Yetminster, Ap- Copyhold Z. b, pi. 4 ; see Wharton 

pendiz, past ; Crabb v. Bevis^ dted v. King, 3 Anst. 659, as to meaning 

Id Warns v. Sawyer ^ 1 Boilers Bep. of fine oertain in oopyholds for lives* 



174 THE LAW OF COPYHOLDS. 

Finearbi- An arbitrary fine, on the other hand, is where the 

*'^*^' amount is dependent on its assessment by the lord or his 

steward. Primd facie all fines are uncertain, and a custom 
must be shown to prove them certain. This custom will 
be shown by the entries on the court-rolls (s). If it is 
shown by the rolls that the fines were in ancient times 
imcertain, subsequent entries in the court-rolls, though 
extending for a very long period, will not make the fines 
certain : but a few contradictory instances wiU not operate 
either way (a). Where the copyhold is granted for life 
only, and there is no custom of renewal, the fine will in- 
variably be found to be uncertain, and a renewal of the 
grant will only be had on the best terms obtainable from 
the lord ; for a custom to compel the lord to renew copy- 
holds for lives can only be supported upon proof that the 
fine is certain {b). But although the amount of an arbi- 
trary fine is uncertain, yet it is not left entirely to the 
discretion of the lord, except in those cases where the 
grant is purely voluntary, as where a copyhold has come 
into the ownership of the lord, or where a copyholder for 
lives, without right of renewal or power of nominating a 
successor, surrenders his estate for the purpose of putting 
in more lives. In all other cases where the fine is arbi- 
trary, it must be assessed and demanded, and be reason- 
able before it can be recovered (c). 
Asseeament The assessment should be made by the lord or his steward, 

but does not need to be enrolled on the court-rolls (d). 
The lord may assess and demand the fine imder the descrip- 
tion of the improved annual value for a certain number of 
years of the tenement, and is not bound to state the precise 
amoimt in figures (e). Formerly, when the rules as to 

(z) Alien y. Abraham, 2 Balst. 32. (c) Sayward t. Raw, 6 H. & N. 

(tf) Gerard's {Ld.) Case, Gk)dli. 266. 308. 

(b) Wharton v. Kinff, 3 Anst. (rf) Northwiek (Lord) v. Stanway, 

669 ; Abergavenny {Lord) y, Thomas, 6 East, 66. 

Ibid, 66811. ; Grafton v. Morton, 2 (e) Fraser r. Jfaton^ 11 Q. B. 

Bro. P. 0. 284 ; and oompare Div. 674 (G. A.}. 
Freeman v. PhiUipt, 4 M. & S. 486. 



IKCIDSNTS OF COPYHOLD ESTATES. 175 

pleading were more stringent than they are now under the 
Judicature Acts, the rule seems to have been that, if the 
lord assessed the fine at a precise amount in figures and 
sued for that sum, he could not recover the amount if the 
jury found for a different amount without bringing a fresh 
action ; but even then it was settled that if the lord had 
assessed the fine at a certain number of years' value, and 
declared in his action for such amount, although stating 
the exact sum under a ^^ videlicet," he might recover the 
amount found by the jury if it did not exceed the sum 
claimed by him (/). One fine cannot be assessed on the 
admittance to several tenements ; there must be a separate 
assessment for each tenement {g). 

When the fine has been assessed, the steward should demand, 
demand it from the tenant. The demand does not require 
to be iQ writing, but should be personal on the tenant {h). 

In an old case, the Court of Common Pleas held that Beasonable- 
when once the lord had assessed an arbitrary fine it was not "®" 
for him to show that it was reasonable, and that it was 
" on the copyholder's side to make it appear to the Court 
to be unreasonable, and so put it upon the judgment of 
the Court, for the fine is due to the lord of common right 
and it is only in point of excuse to the tenant if it be 
unreasonable" (t) ; and this decision has been followed in 
later cases (A*). But although the fine is said to be due of 
common right, it has also been settled, after conflicting 
decisions of the Courts of Common Pleas and Queen's 
Bench, that a refusal to pay an excessive and unreasonable 
fine does not operate as a forfeiture of the copyholder's 
estate (/). The question of the reasonableness of the fine 

(/) Farkffm r. Titui, Garth. 12 ; (t) Denny y. Zemman, Hob. 135. 

Grant y. Astle, 2 Bong. 722 ; (k) Doe d. Twining y. Muteott^ 12 

Northwiek {Lard) y. 8tanway^ 6 M. & W. 832 ; Sayward y. Raw, 

East, 56 ; Mayward y. Saw, 6 H. 6 H. & N. 308. 

& N. 308; I^aeer y. Masons 11 Q. (/) Mobart y. Hammond, 4 Bep. 

B. Diy. 574, 581. 27 b; Jaekman y. Moddesdon, Oro. 

(^) Grant y. Aetle, 2 Dongl. 722. Eliz. 351. 

(A) TroiUr y. Dlake, 2 Mod. 229. 



176 THE LAW OF COPYHOLDS. 

is properly one for the oonsideratioii of a Court of law, 
assisted by a jury in cases where any question of fact 
arises as to the custom or as to the value of the tene- 
ments (m) ; and, accordingly, it was formerly held that a 
single copyholder was not relieyable in equity for an exoes- 
sive fine, because the matter was determinable at law (n), 
though it was admitted that a bill in equity would lie to 
settle a general fine to be paid by all the copyhold tenants 
of a manor to prevent a multiplicity of suits (o). But " to 
prove upon a trial the annual improved value of the land, 
and then to calculate how much of that value should be 
paid for a fine, was likely to be attended with so much 
dissatisfaction that recourse would frequently be had to the 
Court of Chancery, which had always relieved against the 
forfeiture and taken upon itself without a jury to determine 
what should be a reasonable fine" {p). 
Whatiaa There was at one time considerable variance between 

reasonaDie 

fine. decisions of the Courts as to what would constitute a reason- 

able fine. In Willowe^a Case {q)y the Court of King's Bench 
held that a fine amounting to two years' value of the tene- 
ment was, under the circumstances, unreasonable ; and in 
the cases of Middleton v. Jackson (r) and Popham v. 
Lancaster («), Lord Keeper Coventry, when settling the 
fines to be paid by the tenants of certain manors, decreed 
one moderate year's value of the lands as the fine payable 
to the lord ; but in the year 1677, Lord Nottingham, in 
the case of Morgan v. Sciuiamore (^), held that two years' 
improved value of the tenement was in ordinary cases a 
proper limit for a reasonable fine; and this ruling has 
been followed ever since. The fine must be estimated 

(m) Ecbart y. Hammond, 4 Bep. more, 2 Bep. in Oh. 134. 

27 b; TFilloioe't Case, 13 Bep. 1; (p) Fer Ld. Longhboiongh in 

' miion Y. ffoare, 10 A. & E. 236. Grant y. Atile, 2 Dongl. 722. 

(fi) Cowper Y. Clerk, 8 P. Wms. (q) 13 Bep. 1. 

166. {r) I Bep. in Gh. 33. 

(o) See Middleton y. Jaekeon, 1 (a) Ibid. 96. 

Bep. in Ch. 33 ; Fopham y. Xan- (/) 2 Bep. in Ch. 134. 
eaeter, Ibid, 96 ; Morgan Y. 8cuda* 



IlfCIDEirrS OF OOPTHOLD E8XATBS. 177 

according to the improved yearly value of the tenement at 
the time of assessment, deducting the amount of the quit 
rents {u)y and estimating what would be required to put 
the tenement into repair for the purpose of letting it (a?), 
but not making any other deduction whether for land tax 
or other charges (^), though in one case it was doubted 
whether a local drainage rate in a fen district might not 
properly be deducted (a). If the value of the land is 
increased by buildings, that fact may properly be taken 
into account in estimating the fine (a). The rent reserved 
on a lease of the copyhold premises is not the proper 
criterion of the amount of the fine, for the tenant may be 
able to show that the actual value of the premises demised 
is less than the rent reserved {b). 

There have been several cases in which the customs of Customs as to 
manors as to the payment of arbitrary fines have been ^^' 
called in question. Thus^ a custom that a fine being due 
on the first purchase, but not on subsequent purchases or 
descents, as in the manors of Lambeth, Croydon, and 
Bichmond, in Surrey, and of Harrow-on-the-Hill, in Mid- 
dlesex, the lord might set what fine he pleased upon a 
purchaser, has been held imreasonable (c). In a similar 
case, however, it has been held that the lord would not be 
restricted to a fine of two years' value, but, if the custom 
permitted it, '^ might take a fine of four, five, or even seven 
years' value" (rf), and the same principle would appear to 
apply in cases where the fine is upon every purchase but 
not upon descents, the amount of the fine being increased 
in a due proportion (e). In one case it was agreed that the 

(tf) Malton T. ffasself 2 Stra. (b) Verulam (Earl) y. Howard^ 5 

1042; Qrmt y. Attle, 2 Dougl. Moo. & P. 148. 

722. (e) Douglas y. Dytart (Earl of)^ 

(x) Eiehardton y. Kmait, 6 M. & 10 G. B. N. S. 688. 

Or. 485. (d) King y. Dillington, 1 Freezn. 

(y) Grant y. Attle, 2Doitgl. 722. 494, 496 ; PimenVt Com, cited there. 

(z) Ely (Dean f Ch, of) y. Calde- (e) Watk. Copyh. i. 309; Scriy. 

eoU, 8 Bing. 439. Copyh. 319. 

(a) 1 Gaa. & Op. 174. 



178 THE LAW OF OOPYHOLDS. 

lord might be entitled by the custom to inorease the fine 
against an infant who would not come for admittanoe (/), 
but this power, even if ever reasonable, has now been super- 
seded by the lord's statutory remedies before mentioned {g). 
Where there is a custom that persons who are abeady 
copyholders of the manor shall pay a small fine certain on 
the purchase of other copyholds, but if not tenants already 
shall pay an arbitrary fine not exceeding two years' value, 
it has been held that the lord must take his chance of a 
purchaser buying a small copyhold before another of 
greater extent, in order to save the fine ; and even if the 
larger tenement were purchased first, but admittance is 
sought to the smaller tenement in order to decrease the 
fine payable on admittance to the larger, the lord will lose 
his arbitrary fine, unless he can show that the purchase of 
the smaller tenement was colourable only and made to 
///^ '*• ^ / defraud him of his fine (A). A purchaser may therefore 

choose the order in which he will be admitted to the copy- 
holds which he has bond fide acquired ; but there may be a 
custom which restricts a purchaser from compelling the 
lord to admit him to one of several distinct tenements, 
acquired under one disposition (whether by a surrender or 
devise), while, at the same time, he refuses to take admit- 
tance to the other tenements {i) ; and so there may be a 
special custom that the purchaser of several distinct tene- 
ments under one disposition must take admittanoe to all at 
the same time and pay one general fine in respect of all {k). 
The lord being entitled to no more than two years' clear 
intrinsic value, a custom to take ten per cent, on the 
purchase-money cannot be upheld, however long it may 
have been practised ; and if the money were paid under 
compulsion, as under a refusal to grant admittance unless 

(/} King v. DillifigUm, 1 Freem. 565 ; 8. C, nom. Rex v. Meer and 

494. Forton Manor {Lord of), 2 D. & B. 

is) 11 Geo. IV. & 1 Will. IV. 824. 

o. 65. (t) Johnstone y. Earl Spmcer, 80 

(A) Rex V. Boughey, 1 B. & C. Ch. D. 681. (*) Ibid, 



INCIDENTS OP COPYHOLD ESTATES. 179 

it were paid, an action will lie to reooyer the exoees above 
the two years' value. The lord may bind himself to 
accept a certain sum in the future as being the equivalent 
of two years' value after allowing for improvements to be 
made by the copyholder (/). 

In manors where copyholds are granted for lives succes- Fines on lirea 
sively, it is usual to take two years' value for the first life, ^ 
half that sum for the second, half of what was paid by the 
second life for the third, and so on in a descending series, 
00 that the total fine can never amount to as much as four 
years' improved value. This mode of assessment was re- 
ferred to in the case of The Earl of Bath v. Abfiey (w), as 
prevailing within the manor of Stoke Newington,in Middle- 
sex, but was not the subject of decision. The principle, 
however, has been upheld as reasonable in the cases of 
Taylor v. Pembroke (») and Wilson v. Moare (o) ; but both r^ 
these cases are concerned with the case of joint tenants, as 
will appear hereafter. It is with reference to this rule, 
that it has been said that " where a person is admitted to 
an estate in remainder the fine is usually one-half " {p). 

Notwithstanding that the lord might in the case of 
0ucces8ive tenants for lives charge two years' value for the 
the first, one year's value for the second, and so on, it is 
not usual in practice to charge so much ; and the lord is 
generally content with the value of a year and a half for 
the first life, and so with the other lives in proportion. 

Where some of the lives are only trustees for the " first 
taker" or other owner of the beneficial interest, the whole 
fine is assessed at once. But where all the lives are to 
take both legal and equitable estates successively, each will 
in general pay his fine, according to the rule above given, 
as it accrues due. 

(/) See Curtit y. SeaUs, 14 M. k Ad. 860, 864, 861, and in Sorir. 

W. 444. Copyh. 321. 

(m) 1 Burr. 206, 207. (o) 10 A. & E. 286. 

[n) King's Bench, Mioh. 1816, \p) Cm. Dig. tit. 10, c. 4, s. 86« 

cited in Wihon y. Sowr$y 2 B. ft 



180 THB LAW OF OOPTHOLDS. 

Fines on joint In some of the older books (a) it is said that this mode 
of assessing fines on copyholds which are granted for lived 
successivelj is not applicable to the cases where the liveff 
are admitted as joint tenants or as tenants in common, for 
joint tenants make but one tenant to the lord, and there^ 
fore only one fine not exceeding two years' value would be 
due from them ; and in the case of tenants in common each 
has severally to be admitted, and a single fine would be 
apportioned between them, each paying his several share. 
In the case of joint tenants, it seems to be usual for ond 
tenant only to take admittance, his admission being the 
admittance of his co-tenants, and when that is the case 
only one fine would be due, and the joint tenant who paid 
it could compel the others to contribute their proportions. 
But where all the joint tenants are admitted, it appears 
now to be clear that the lord would have a right to demand 
more than two years' value as a fine, for if one of two 
joint tenants die, the other will have the copyhold by 
survivorship without the necessity of a fresh admittance 
or fine, because each is the owner of the whole ; and one 
joint tenant can release his share to the other without the 
intervention of the lord. By these incidents of their estate 
the lord is deprived of his chance of fines, and therefore it 
has been held that the rule of assessing a fine for joint 
tenants should be the same as where there are successive 
estates in a copyhold for lives. This principle was ap- 
proved in the case of Taylor v. Pembroke (r), where it 
appeared that three trustees had been admitted as joint 
tenants of a copyhold tenement in the manor of Sutton 
Holland, in Lincolnshire, and that the lord had demanded 
as a fine for the first life two years' improved value, for 
the second half the sum assessed for the first, and for the 
third half the sum assessed for the second. The Court of 
King's Bench expressed a strong opinion that the fine was 

(9) Watk. Copjh. i. 312; Cru. (r) Cited in WiJaon v. Hoartj 2 

Dig. tit. 10, 0. 4, s. 37. B. k Ad. 350, 364. 



INCIDENTS OP COPYHOLD ESTTATES. 181 

reasonable, as it would never amount to four years* im- 
proved value; the case, however, appears on appeal to 
have been sent back for fresh trial, and the point was thus 
not expressly decided. But the principle was finally 
established in the case of Wilson v. Soare{8)^ of which 
the chief circumstances were as follows : — ^A copyhold was 
vested in fourteen trustees, and by a decree in Chancery it 
had been ordered that when the number should be reduced 
to five the lord should nominate nine others (with the 
approbation of the Court), to be added to the five, and 
that a new surrender should be made and the trustees ad- 
mitted on payment of a reasonable fine. The estate was 
valued at 1,000/. per annum. It was held, that a fine of 
5,657/. Ids. on the admission of the fourteen trustees 
(the number having been filled up) was unreasonable, and 
that the principle of assessment should be to charge half 
as much for the second as for the first, half as much for 
the third as for the second, and so on in a descending 
series, approaching, but never reaching, a total of four 
years* value ; and it was held that, under the circumstances 
of the case, a deduction should be made on account of the 
right to take the new fine on the death of nine out of the 
fourteen lives instead of at the death of the last survivor. 
Evidence was given on one of the trials, which is cited by 
Serjt. Scriven, in his account of the case (/), to the effect 
''that, if copyhold premises be held on a single life of 
thirty years, the interest in them would last on an average 
twenty-eight years ; that if one life aged thirty would be 
worth on renewal 2,000/., then two lives of the same age 
would be worth 2,430/., and three such lives 2,608/., and 
that the addition of any further number could not exceed 
3,000/. ; that if 2,000/. was a reasonable fine on the ad- 
mission of one life, the admission of fourteen of the several 
ages of the defendants, to be renewed when reduced to 
five, would be 2,111/.; and that the interest in fourteen 

(•) 10 A. & E. 236. (t) Scriv. Copyh. 328, n. {q). 



182 



THE LAW OF COPYHOLDS. 



Find8 0ii 
tenants in 
oommon. 



Fines due on 
change of 
tenaotB. 



livee, whioh are to be surrendered and re-admitted when 
reduced to five, is not so valuable as the interest in nine 
lives absolute." The deoiBion in Wikan v. Hoare was 
followed shortly afterwards by the case of Shepherd v. 
Woodford (w), where the same principle of assessment was 
upheld. 

As regards tenants in common, the rule is that each 
tenant is admitted separately, and therefore each will pay 
a separate fine (x) ; and as there is no survivorship between 
them, on the death of any one his customary heir will be 
admitted, and pay a fine, if any is due by the custom of 
the manor, on the descent to him. 

As to the persons from whom a fine is due, the general 
rule is that a fine is to be paid upon every change in the 
tenancy. If therefore a copyholder in fee dies, a fine is 
due from the heir, unless there is a custom that no fine is 
payable on descent to an heir (y) ; and so in the case of 
the heir of a copyholder with right of renewal, or the 
successor nominated by custom (z) ; and the death of the 
heir will not deprive the lord of his right (a). If the sur- 
renderee dies before admittance, his heir must pay two 
fines (b). The devisee of an unadmitted testator must in 
the same way pay the fine which would have been due had 
the testator been admitted, and had then surrendered to 
the use of his will and devised (c). In the case of Lord 
Londcaborough v. Foster (rf), it was held that where a tes- 
tator died before admittance his devisee had to pay two 
fines, notwithstanding that the copyhold was held in trust, 
and that the lord had admitted some of the cestui^que-trmtsy 



(u) 6 M. & W. 608. 

Ix) Fisher ▼. Wiffg, 1 P. Wms. 
14, 21. 

(y) Doe d. Tarrant y. MellUr, 8 
T. R. 162. 

(z) Co. Copyh. B. 41 ; Brown's 
Case^ 4 Rep. 21 a, 22 b ; Doe d. 
Twining y. Museott, 12 M. & W. 
S32 ; 1 Vict. o. 26, b. 4. 



(a) Morse y, Faulkner y 1 Anst. 11. 

(b) Rex Y. Coggan, 6 East, 431 ; 
Morris y. Clarkson, 3 Swan. 568 ; 
but Bee Garland y. Alston, 3^H. & 
K. 390, as to the case of a snrren- 
deree of a remainder dying in the 
lifetime of the tenant for life. 

{e) 1 Vict. c. 26, b. 4. 
{d) 3 B. & S. 806. 



INCIDENTS OF COPYHOLD ESTATES. 183 

who had paid customary fines ; but it appears by one of 
the reports of this case that this took place by virtue of a 
special custom (e). On every devise of copyholds the 
devisee is to pay the same fine as would have been due 
from the customary heir (/). A person who acquires a 
copyhold as special occupant must pay the same fine as a 
purchaser (</), a due deduction being made in respect of the 
expectation of life of the cestui^que-me {h) ; and this applies 
to the representatives of an intestate tenant ptir autre vie 
taking his estate imder the provisions of the Wills Act( i). 
The executor of a copyholder for years pays a fine upon 
admittance, because there is a change of the tenant {k). 
Coparceners make but one heir, and are entitled to be ad- 
mitted on one fine (/). But if a coparcener dies, and the 
other becomes entitled by descent, another fine will be 
due (m). Where every tenant of a manor holds for the 
joint lives of himself and the admitting lord, on the death 
of the latter each tenant must pay the general fine for re- 
admittance, and on admittance after a descent or aliena- 
tion of a tenement another fine (called a " dropping fine") 
will be paid, as before mentioned (n). If the tenant in 
possession acquires a new estate, he must be re-admitted 
and pay a fine, as where a tenant for life becomes tenant 
in fee by descent or devise (o) ; so where a tenant was ad- 
mitted provisionally to prevent the lord's seizure, and after- 
wards became entitled beneficially, a new admittance and 
fine was required {p). And if by a surrender to uses the 
tenant takes back a particular estate, he must pay a fresh 
fine {q) ; and so if by any assurance, after the year 1833, 

(e) 9 Jut. N. 8. 1173. (m) Co. Oopyh. b. 66. 

(/) 1 Vict. o. 26, B. 6. (») Somerut (Duke of) v. France, 

is) Go. Gopyh. 8. 66. 1 Stra. 664. 

(A) Gilb. Ten. 327. (o) Doe d. Winder v. Lau>e9y 7 A. 

(i) Sect. 6. &E. 196. 

\k) Bath (Earl of) v. Abney^ 1 (p) Beg, v. Corhett, 1 E. & B. 

Burr. 206. 836. 

(/) Bex ▼. Bomall Manor (Lord (q) Boe d. Noden v. Gr\ffltt, 4 

of), 3 B. & 0. 173. Burr. 1952. 



184 



THE LAW OF 00FTH0LD6. 



Trostees. 



a person conveys to himself or his heirs, saoh person i^ill 
be deemed to have purchased a fresh estate (r). But if 
a copyholder in fee surrenders for life, reserving the rever- 
sion, and the tenant for life dies, the copyholder shaU not 
be admitted again, nor pay a fine, because the reversion 
was never out of him («) ; and if a copyhold is granted 
upon condition, and the condition is broken, and the 
grantor enters, he shall not be admitted nor pay a fine, 
because upon the entry he is to all intents as if no grant 
had been made (t). Where trustees surrender to the use 
of themselves and other newly-appointed trustees, they 
must all be admitted and pay a fine assessed for a joint 
Mortgages, estate upon the principle already mentioned (t/). Where 
the condition of a mortgage surrender is broken, a fine 
will be due on the admission of the mortgagee, and also 
on a subsequent readmission of the mortgagor {x). Wh^:« 
before the Act 1 & 2 Vict. c. 110, copyholds were extendible 
by custom for judgment debts, the tenant by elegit had to 
be admitted and to pay a fine {t/} ; and it is presumed that 
the necessity applies to judgment creditors to whom copy- 
Bankruptcy, holds may now be delivered in execution. Under the old 
law, it was held that the assignees of a bankrupt had to be 
admitted before they could convey to a purchaser, and a 
fine was due on their admittance as weU as on the admis- 
sion of the purchaser {z) ; but now it is provided (a) that 
where any part of the property of a bankrupt is of copy- 
hold or customary tenure, the trustee shall not be com- 
pellable to take admittance to the property, but may deal 
with it in the same manner as if it had been duly sur- 
rendered to such uses as the trustee may appoint, and any 



(r) 3 & 4 Win. IV. o. 106, s. 3. 

(<) FodgerU Case, 9 Bep. 104 a, 
107 a. 

{t) Co. Copyli. B. 56. 

(u) Shepherd t. Woadfwd^ 6 M. 
& W. 608. 



{x) Tredvoay ▼. FoiherUy^ 2 Vem. 
367; Fawcet v. Zotother, 2 Ves. 
300 ; Coote, Mortgage, 4th ed. 231. 

(y) Co. Copyh. 8. 66. 

(z) Drury y. Man, 1 Atk. 95. 

(a) 46 k 47 Vict. o. 52, a. 60 (4). 



INCIDENTS OF COPYHOLD ESTATES. 186 

appointee of the trustee shall be admitted to the property 
acoordingly. 

If a wife by custom has the whole or part of a copyhold 
for her freebench, upon her admission a fine WiU be paid ; 
half a fine is commonly taken, but that depends upon the 
custom ; and so in the case of a customary tenant by the 
curtesy (6). But, as has been abeady mentioned, in a 
great many manors no fines are paid for admittances to 
these estates (c). 

The admission of the particular tenant being usually ^iaea on 
the admission of all in remainder, a person becoming remainder- 
entitled to an estate in remainder under a will, whether 
vested or contingent, or by way of executory devise, is 
entitled to the benefit of the admittance of a devisee of 
the prior estate, inasmuch as he comes in directly under 
the will when the remainder vests or the contingency 
happens (ei?). On the same principle, it is held that the 
heir of one to whose use the tenant in remainder had 
surrendered during the life of the tenant in possession was 
entitled to be admitted on payment of a single fine (e). 
Where the heir of a reversioner surrendered during the 
Ufe of the particular tenant, the surrenderee had to pay 
the fine in respect of the descent, as well as for his own 
admittance (/). The devisee of a copyhold, having been 
admitted on payment of a full fine, surrendered to the use 
of himself for life with remainders over, and paid a small 
customary fine: it was held that, in the absence of a special 
custom, no fine was payable on the admission of the tenant 
in remainder (^). But by such a special custom a re- 
mainderman may be compelled to be admitted- and pay a 

{b) Kitch. Jurifld. 242 ; Co. Bandfield, 3 De G. F. & J. 766. 

Copyli. 8. 56; Forder v. Wade^ 4 {e) Garland r. jlltton, 3 H. & N. 

Bro. Ch. Cas. 620. 390. 

{e) Ante, pp. 162, 167. . (/) lUff. y. LuUingham Manor 

(«f) Barnes ▼. Cork$, 3 Lev. 308 ; {Lady o/), 8 A. & E. 868. 

Auneelme ▼. Auneelme, Cro. Jac. {ff) Fhypers v. £bum, 3 Soott, 

31 ; Kensington {Lord) v. ManseU, 634. 
13 Yes. Jan. 240, 246 ; MandJUldy. 



186 



THE LAW OP OOPTHOLDS. 



fine (A) ; '^for, though the admittanoe of the first tenant is 
an admittanoe of them in remainder, yet it shall not 
prejudice the lord for his fine," where such is due by the 
custom (e). 

In Randfield v. Randfield{k)^ it appeared that by the 
custom of themanorof Dovercourt,in Essex,itwas necessary 
for a copyhold tenant in remainder to be admitted, and pay 
a fine on becoming entitled in possession, notwithstanding 
the admittance of the tenant for life ; but no instance was 
shown of a devolution by way of executory devise. 
Knight Bruce, and Turner, L, JJ., affirming on this point 
the judgment of Kindersley, V.-C, held that the same 
rule ought to be applied to an executory devisee who 
becomes entitled on the defeasance of an estate in fee, 
although no custom applicable to such a case was estab- 
lished ; but the Court differed on the question whether a 
fresh fine would be payable in a manor where there was no 
such custom as to remainderman. Knight Bruce, L. J., was 
of opinion that on the executory devise taking effect afresh 
fine would be payable, as a new estate had come into 
existence. Turner, L. J., on the other hand, held that 
when the executory devise came into operation the persons 
entitled under it took the same estate to which admittance 
had been taken under the prior devise, and that conse- 
quently the case was brought within the acknowledged 
rule that the admission of a tenant for life is the admission 
of all who take in remainder ; and this had also been the 
effect of the decision in the Court below (/). 
Apportion- The lord may assess the whole fine on the admittance of 

the particular tenant, or may apportion it between the 
different estates. ^' When a tenant for life comes on behalf 
of himself and all in remainder and reversion, if the lord 

(A) Dw d. TThithread v. Jetmey, 6 (i ) Sroum*t Casey 4 Rep. 21 a, 22 b ; 

East, 522 ; JSh/ {Dean ^ Ck. of) ▼. F%tehv,StuekUy,iBj&p. 23a; Black' 

Caldeeott, 8 Bing. 439 ; JUff. y. bume r. Graves, 1 Mod. 102, 120. 

Woodham Walter Manor (Lord of), (k) 3 De G. F. & J. 766. 

10 B. & S. 439. (/) 1 Dr. & Sm. 310. 



ment of fines. 



INCIDENTS OF COPYHOLD ESTATES. 



187 



does not take the fine, he cannot afterwards insist upon 
leoeiving it from those in remainder; he may apportion it, 
but it is not open to him to say that the tenant for life 
shall pay nothing, and those in remainder the whole "(^n). 
But, when the lord has assessed the whole fine on a tenant 
for life, its burden will have to be apportioned between 
the particular tenant and the other persons for whose 
benefit his admission enures. The appointee under a 
power is in the position of a tenant in remainder (n). A 
fine is not due from the remainderman before admit- 
tance (o). It has been said that '^ the fine on admission to 
an estate in remainder is usually one half (p) ; but this 
seems to refer only to those cases of copyhold for lives 
and joint tenancies which have been already men- 
tioned (q). 

One fine cannot properly be assessed on the admittance to Separate fines 
several tenements (r) ; but a question has sometimes arisen, ^te ten*?^" 
whether the shares of tenants in common are several ments. 
tenements for this purpose. Joint-tenants or coparceners 
joining in a conveyance make but one grant, and the 
surrenderee will pay but one fine, and the case will be the 
same if the particular tenant and all those in remainder 
or reversion join in a conveyance to a purchaser («). But 
if tenants in common of undivided shares join in one 
conveyance, the purchaser must be admitted, and pay a 
fine in respect of each share {t), although after the re-union 
of the several undivided shares in one person the copyhold 
will be treated as one tenement again {u) ; but the re-union 



(m) Kensington {Lord) v. Manully 
13Ve8.jun. 240,246. 

(») Ibid, 

{o) Batmore v. Gravet, 1 Ventr. 
260; S. C, nom. BlaekburM T. 
Grav0$, 1 Mod. 102, 120. 

(j9) Cra. Dig. tit. 10, o. 4, s. 36. 

{q) Ante, p. 179. 

(r) Grant ▼. AttU, 2 Dong. 722. 

(«) Ck>. Copyh. s. 66. 



(0 Seff. y. Eton College, 8 Q. B. 
526 ; S, (7. nom, Heg, y. Everdon 
Manor {Lords of), 16 L. J. Q. B. 
N. S. 18 ; Evans y. Vpsher, 16 M. 
k W. 676. 

{u) Garland y. Jekyll, 2 Bing. 
273 ; HoUoway y. Berkeley, 6 B. & 
G. 2 ; oyerruling Attree y. SctUt, 6 
East, 476. 



188 



THE LAW OF COPYHOLDS. 



Fines due 
only on 
admittance. 



Contribution 
to fine. 



does not take plaoe until the purchaser has been admitted 
to the separate shares. If a copyholder conveys his 
tenement in several parcels to different persons, and some 
of the parcels devolve upon one person, in the absence of 
a special custom the owner is not entitled to be admitted 
by one admittance and one fine {x). 

When several joint-tenants are entitled to admittance, 
the lord may not refuse to admit one imtil the others pay 
their fine (y). And it is a general rule that the fine is not 
due imtil admittance, and any question as to the amoimt 
of the fine is properly to be determined after admittance 
has taken place (2). Where a copyholder devised to two 
trustees, who would not be admitted, but tendered the heb 
for admittance, because on their admittance a fine and 
a-hatf would be due instead of a^single fine, it was held 
that the lord could not seize for want of a tenant, though 
the heir was refused admittance, on the ground ^that there 
was brought to the knowledge of the lord a will entitling 
the trustees to be admitted (a) ; but it has since been held 
that the heir is entitled to admittance notwithstanding the 
existence of a duly executed will devising the copyholds to 
trustees ^b). 

When the fine is paid by one person whose admission 
enures to the benefit of others, he may compel the others 
to make contribution according to the rules laid down in 
equity for the case of a tenant for life renewing a lease, 
without being obliged to do so, and the contribution will 
be made by each person in proportion to the benefit de- 
rived from the renewal (c). So a joint-tenant or coparcener 
may compel the others to contribute to the admittance- 



(df) Traheme r. Oardner, 6 E. & 
B. 913. 

Cv) ^9* ▼• Wanatead Manor 
(Lord of), 23 L. J. Q. B. N. S. 67. 

(«) Beg. V. Wellesley {Lord), 2 
£. & B. 924 ; Orand Junction Canal 
Co. Y. Dimes, 2 Jur. 886. 

(a) Garland y. Mead, L. R. 6 
Q. B. 441 ; Msff, y. Garland, L. B. 



5 Q. B. 269. 

(A) Seg, Y. Dudley {Earl of), nnre- 
ported; decdded Q. B. DIy. June, 
1884. 

{c) See Jonet y. Jones, 6 Hare, 
440, 463 ; Hudleston y. WhelpdaU, 9 
Hare, 776, 785; Bradford v. Brown- 
John, L. B. 3 Ch. 711. 



INCIDENTS OF COPYHOLD ESTATES. 189 

fine. In Pldytei^s v. Abbott (rf), it was held that where a 
testator indicates an intention that fines on the admission 
to copyholds should from time to time be paid in order to 
maintain a permanent interest in the property for the 
benefit of the persons to whom he has saoces^vely limited 
his freehold estates, and has not specified the fund out of 
which such payment should be made, the tenant for life 
and those in remainder should bear the burden of such 
payments in the proportion of the benefits which they 
actually derive from the admission ; and the same prin- 
ciple was followed in Carter v. Sebright {e) with regard 
to the fines, fees, and expenses of the admission of new 
trustees to copyholds. 

Where a fine is certain the tenant is bound to pay it When 
immediately after admittance, but if it is uncertain he ^^* ®' 
will be allowed a reasonable time for meeting the lord's 
demand (/). 

If the copyholder delays or refuses to pay the fine, the Lord's reme- 
lord may bring his action to recover the amount; and ^^^of&w." 
under the old practice it was held that both an action of 
debt and a general indebitatus assumpsit lay for a copyhold 
fine (g). If the lord admits a tenant and dies before the 
fine is paid, his executor may take action to recover the 
debt, whether the fine is certain or arbitrary (A). The 
lord may recover the fine assessed on admittance, though 
there is no entry of the assessment on the court rolls, but 
only a demand of such a sum for a fine after the value of 
the tenement has been found by the homage (e), or 
although he has demanded the sum under the description 
only of the improved value for a certain number of years 
of the tenement (A). The lord is not bound to identify 

{d) 2 M7I. & K. 97. (A) 8huitleworthY,aamett,Caxiii, 

{e) 26 Beay. 374. 90, 92. 

(/) JECobart y. Hammond^ 4 Bep. (t) Northwick {Lord) y. Stanway, 

27 b. 6 East, 66. 

{g) Whuler y. Honour, 1 Sid. 68; (*) Frtucr v. Jfown, 11 Q. B. 

WhitJMd T. Hunt^ 2 Doug. 727, n. Diy. 674. 



190 THE LAW OP COPYHOLDS. 

the lands in respect of whioh the fine is due (/) ; but if he 
olaims quit-rents or heiiots, he must show the particular 
tenements (m). The fine is not a charge upon the lands (n) ; 
and an action to recover it must be brought within six 
years of the cause of action accruing (o). If a copyholder 
in fee dies, and his heir does not take admittance, the lord 
cannot bring an action against the heir for the fine, but 
may in general seize the copyhold (p) ; but if, the heir 
being an infant, the lord takes proceedings for recovering 
the fine under 11 Geo. IV. & 1 WiU. IV. c. 65, he is 
restricted to his statutory remedies (q). A married woman, 
entitled to copyholds, will no longer require the benefit of 
that Act if married since the 1st of January, 1883, or if 
her title accrued after that date(r). The Lunacy Act, 
1890 («), regulates the rights and remedies of a lord as to 
fines due for the estate of a lunatic so found by inquisi- 
tion. 
When fine j^ covenant to surrender a copyhold, though presented 

by the homage, does not entitle the lord to any fine, and 
the assignee of the benefit of the covenant has a right to 
be admitted upon payment of a single fine {t). A cove- 
nant to surrender and to do all acts for perfectly surrender- 
ing and assuring the estate to the purchaser is not broken 
by non-payment of the fine on admission, because it is due 
only after the purchaser's admittance, as has before been 
mentioned (u). A husband is not obliged to be admitted, 
or to pay a fine, in respect of his wife's estate in fee or 
other estate (x). On a release by one joint tenant or one 

(I) North V. Strafford {Earl of), {q) See Clayton y. Cooke, 2 Atk. 

8 P. Wms. 148, 161 . 449. 

(m) Ba9ing»toke {Mayor of) v. (r) 46 & 46 Viot, c. 76, as. 2, 6. 

BoUon {Lord), 3 Dr. 60. (<) 63 Yiot. c. 6, b. 126. 

(») Fiteham y. linoh, 1 Bo. Abr. {t) Rex r. Sendon Manor {Lord 

374, Chancery P. of), 2 T. R. 484. 

(o) 3 & 4 Will. lY. c. 42, s. 3. (n) Qraham t. Sime, 1 East, 632 ; 

{p) See Wheeler v. Hoiuiur, 1 Sid. ante, p. 76. 

68; Qilb. Ten. 292. (x) Co. Copyh. a. 66; and see 

now 46 & 46 Vict. o. 76. 



INCIDENTS OF COPYHOLD E8TATBS. 191 

coparcener to another, or by a person having a right in 
the land to the tenant in possession, no fine is due {y). 
An entry bj the steward in his books of the admission of 
a surrenderee is a mere memorandum, and does not entitle 
the lord to a fine (2) ; nor will the acceptance of rent by 
the steward from a surrenderee, or any other act of ad- 
mittance, imless he has authority to make the admittance, 
operate to admit the surrenderee or make him liable to 
the fine (a). The lord cannot claim a fine in respect of 
any devolution of the equitable title to copyholds where 
the legal estate remains in the person who has abready 
been admitted tenant on the roU {b). Again, if a testator, 
instead of devising his copyholds to trustees, gives his 
executors merely a power to sell his copyhold heredita- 
ments, and to convey and assure them to a purchaser, the 
executors may sell without taking admittance, and the 
purchaser vidll be entitled to admission as if there had 
been an express devise to him in the will, and only one 
fine will be due on his admittance {c). No fine is due 
from a trustee who has disclaimed before acting in the 
trusts of a devise of copyholds {d). Where a copyholder 
devised his estate to a devisee in fee subject to a term of 
years, which he gave to trustees, and the devisee was ad- 
mitted on payment of a full fine, but the lord seized 
quouaque to compel the trustees of the term to come for 
admittance and pay a fine, it was held that, as by the 
form of admittance the devisee had been admitted in 
proBsentiy and not to an estate in remainder, the lord had a 
tenant on the roll and had received a full fine, and there- 
fore oould not force the trustees to come for admittance {e), 

(y) See Co. Litt. 193 a, 318 a. (0) Bolder d. J^ulyard y. Freaton, 

(t) Hayward t. Raw^ 6 H. & N. 2 Wils. 400 ; GUua y. Siehardwn, 

808. 2 De G. M. & G. 668; Beg, y. 

(a) jRauflituon y. Cfreen, Foph. Wilson^ 3 B. & S. 201. 

127 ; A C. 8 BnU. 237. W WelUaUy ( FUeouni) v. Withere, 

{b) Sail y. Bromley, 36 Gh. Diy. 4 E. & B. 760. 

642. {e) Everingham y. Ivatt^ L. B. 8 

Q. B. 388. 



192 THE LAW OF COPYHOLDS. 

In the case of Briatow v. Booth (/), it appeared that P. P., 
a copyhold tenant of the manor of Woodford, In Essex, 
who had been dulj admitted, had devised his copyholds 
to his son on trust. The son was admitted and pcdd a 
fine ; and by his will he devised all his real and personal 
estate to his widow, whom he appointed his sole executrix. 
The widow proved the will, but executed a deed of dis- 
claimer as to the copyholds. The customary heir-at-law 
of the son being then abroad and out of the jurisdiction, 
the defendant was, by decree of the Court, appointed a 
trustee of the will of P. P. in substitution for the son, and 
the estate in the copyholds was vested in the defendant 
under the powers of the Trustee Acts. The defendant 
was then duly admitted as such substituted trustee, but 
the lords of the manor claimed two fines, contending that, 
on the execution of the disclaimer by the widow, the copy- 
hold hereditaments descended on and became vested in the 
customary heir-at-law of the son, and that on such descent 
a fine was due, and that another was due on the admittance 
of the defendant as trustee. But the Court of Common 
Pleas held that the defendant was entitled to be admitted 
on payment of one fine only, as he did not claim through 
the customary heir, but took as substituted trustee. The 
effect of the Settled Land Act, 1882, and of a disposition 
by a tenant for life under the powers of that Act on the 
lord's fine was considered in the case of In re Naylor and 
Spendla^B Contract (g). A copyholder who had been ad- 
mitted to copyholds for a customary estate in fee simple 
devised them to trustees upon trust to pay the rents to his 
widow for life. Shortly after his death, the widow sold 
the property imder the powers of the Settled Land Act, 
1882. The trustees had not been admitted, and on the 
admittance of the purchaser the lord claimed to be paid, in 
addition to the fine payable on his admittance, the fine 
which would have been paid if the trustees had been ad- 

(/) L. K. 6 0. p. 80. (^) 84 Ch. Div. 217. 



INCIDENTS OP COPYHOLD ESTATES. 193 

mitted. The Act of 1882 provides that when the tenant 
for life sells nnder the provisions of the Act, he may, if 
the land is copyhold land vested in trustees, convey the 
same for the estate vtrhich is the subject of the settlement 
by deed, which shall be entered on the court rolls of the 
manor (^), and that upon production of the deed to the 
steward, and " payment of customary fines, fees, and other 
dues or payments, any person whose title under the deed 
requires to be perfected by admittance shall be admitted 
accordingly'' (t) . It was held by Cotton and Bowen, L. JJ., 
affirming the decision of Chitty, J., that the lord could 
claim one fine only ; but from this judgment Fry, L. J., 
dissented. " The question is," said Cotton, L. J., " whether 
those words * on payment of customary fines, &c.,' give 
the lord a right to demand, in addition to the fine payable 
by the purchaser on admittance, a fine as on the admittance 
of the trustees. In my opinion the Act was not intended 
to take away any of the rights of the lord, but was not in-* 
tended to give him any. The lord would have no right 
to a fine for the admittance of trustees who never were 
admitted, and from whom the purchaser's right to be 
admitted is not derived. If the words 'on payment of 
customary fines' had not been inserted, it might have been 
contended that as the statute created a new kind of title 
to admittance, the lord could not demand a fine on the 
admittance of the purchaser. The words have a reason- 
able meaning without construing them to mean such fine 
as would have been payable if the purchaser had obtained 
a title to admittance in the way in which he must have 
obtained it if the Settled Land Act had not been passed." 
And in this opinion Bowen, L. J., concurred ; but Fry, L. J., 
dissented, remarking that the words of the section were 
very general, and that the statute did not speak of the 
customary fines, but simply of customary fines, fees, &c. 
" It is obvious," he said, " that there are no customary 

(A) Sect. 20 (1). (i) Sect. 20 (3). 

E. O 



194 THE LAW OF COPYHOLDS. 

fees payable on the new form of deed given by the statute. 
What, then, are the oostomary fees and payments referred 
to P There are two possible answers : either those whidx 
would have been payable on or before admittance if the 
Aot had not passed, or those which would have been pay- 
able on admittance if the Act had not passed. The former 
construction leaves the rights of the lord untouched, the 
latter deprives him of his rights. In my opinion the 
Act was not intended to interfere with the rights of the 
lord, and I think that the construction which leaves them 
imtouched is to be preferred." 
Fines on con- On the execution of a conveyance under the Lands 
n^^Landa Clauses Consolidation Act, 1845, by a copyholder to a 
CUuses Acta, oompany empowered to take land, no fine is due, and the 
lord is not entitled to any fine upon the enrolment of the 
conveyance, nor to any compensation for the loss of his 
tenant ; but he may be entitled to a fine on the surrender, 
if such fines are payable in the manor by custom (k). The 
Lands Clauses Act of 1845, however, requires (l) the 
company to procure the enfranchisement of the lands from 
the fines, heriots, and other services, to which meanwhile 
the lands continue to be subject notwithstanding the 
enrolment of the conveyance, and directs that in esti- 
mating the amoimt to be paid to the lord, allowance must 
be made in respect of the loss of the fines, heriots, and 
dues payable on death, descent, and alienation caused by 
the vesting of the lands in the company and by their en- 
franchisement. In Lowther v. Caledonian Railway Co, (m), 
it appeared that the defendant company in the year 1873 
took possession of certain lands, partly copyhold of the 
manor of Stainton in Cimiberland, where the fines are 
fixed, and pctrtly copyhold of the manor of West Linton in 
the same coimty, where an arbitrary fine of two years' 
improved value is payable on death of either the lord or 

(k) EceUi, Oomra, fir England ▼. {I) 8 Viot. c. 18, 6. 96. 

L,^8, W, Rail. Co,, 14 0. B. 743. (m) (1892), 1 (3h. 73 (C. A.). 



INCIDENTS OF COPYHOLD ESTATES. 195 

the tenant, and ereoted oertain cottages on the lands, and 
constnioted a reservoir for the pniposes of their under- 
taking. No steps to enfranchise were taken till 1887, 
when the question arose whether the compensation ought 
to he assessed on the hasis of the unimproved value of the 
land when the company took possession, or on the improved 
value occasioned by the works subsequently executed. 
It was held by the Court of Appeal, reversing the decision 
of Stirling, J. (n), that as imder the provisions of the 
Lands Clauses Consolidation Act; 1845 (o), an obligation 
on the company to procure enfranchisement and an obli- 
gation on the lord to enfranchise arose at the expiration 
of one month from the entry by the company, or of three 
months from the enrolment of the conveyance to the com- 
pany, whichever event should first happen, the compensation 
must be assessed as at that period without regard to the 
subsequent improvements made by the company, but that 
the lord was entitled to two fines, which- had become 
payable owing to the deaths of two lords after the company 
had taken possession and before steps had been taken to 
enfranchise, such fines being assessed according to the 
improved annual value of the land. 

As to the fines due on licences by the lord em- Knee for 
powering the copyholder to aliene, or to demise by deed, it alienate, &o. 
may be mentioned that such fines are but rarely due, and 
they can be demanded only by virtue of a special custom. 
But if such a fine be due by the custom, an action will He 
for its recovery (p). These fines, it should be observed, 
were expressly excepted in the Statute of Charles II. (^), 
which abolished fines due upon the alienation of lands and 
tenements held of mesne lords. In a case where a copy- 
holder had a licence to demise part of his tenement, and 
then a second licence to demise the remainder, with a 
condition that he should improve such remaining portion, 

(«) (1891), 8 Ch. 443. (jp) Taxley v. Hainer, 1 Ld. 

(o) Sects. 96, 97. Raym. 44. 

{q) 12 Oar. II. c. 24, 8. 6. 

o2 



196 THB LAW OF COPYHOLDS. 

and in consideration of the improyements shoxild on all 
future admissions pay a fine of ^' 37/. for the whole, and a 
proportionate payment for any less quantity of land," it 
was held that " the whole " meant the property included 
in the second licence, and that his representatives were 
bound to pay on admission not only two years' value of 
that property (taken at the annual value of 37/.), but also 
two years' improved value of the property first demised (r). 
Bight to fines If, after a contract for the purchase of a manor, but 
xnimor. before the time fixed for the completion of the purchase, a 

tenant of the manor dies, the vendor and not the purchaser is 
entitled to the accruing fine, even though it may be the 
purchaser's hand that receives it (a). 

6. Fealty y and Suit of Court. 

Other Besides the payment of fines upon the proper occasions, 

every copyholder is bound to do certain services to the lord 
of the manor in respect of his customary tenement. These 
services usually include fealty, suit of court, and payment 
of rent ; and by custom the tenant may be liable to the 
payment of customary heriots and reliefs. 

Fealty. Fealty, — Fealty is generally respited or commuted at a 

trifling sum. It consists in swearing to be faithful in 
performing the services of the tenancy, and maybe required 
upon every change of the lord or tenant {t). If refused, 
the lord may seize some property of the tenant, and detain 
it as a pledge, but cannot sell it as an ordinary distress (ti). 
As this service cannot be done by attorney, the lord was 
formerly not compellable to admit a tenant by attorney, 
though he might have done so if he respited the fealty (a?), 

(r) Cwtii V. ScaUt, 14 M. k W. (t) Co. Copyh. as. 20, 21; 

444; (tf) Sewet y. NorberoWf 1 Bnls. 

(«) Oarrick r. Camden {Lord), 2 52. 

Cox, Ch. Oas. 231 ; Sardwieke {x) Combes* Ctue, 9 Bep. 76 a, 

{Eart) Y. Sandyi {Lord), 12 M. & 76 a; Go. Litt. 68 a; 60 & 61 Yiot 

W. 761 ; Cuddon v. TiU, 1 Gifl. 395. o. 73, b. 2. 



INCIDENTS OF COPYHOLD ESTATES. 



197 



Suit of Court. — The copyholder is bound to attend the Suit of court, 
conrts, unless the attendance be commuted for a small 
payment, as sometimes happens, and to sit upon the 
homage jury, if required. If he is resident within the 
ambit of the manor, and does not either appear at a court 
after it has been publicly summoned, or make sufficient 
essoign or excuse, he may be fined (i/) ; and if he has been 
personally summoned to attend, and he wilfully refuses, 
his conduct might be held to be such a denial of tenure as 
to cause the forfeiture of his estate (z). By analogy to 
the case of amercements of freehold tenants, it would seem 
that the fine imposed on a copyholder for non-attendance 
must be affeered or assessed by two copyholders at least (a). 
The lord would not be entitled to distrain for such a fine 
without a special custom (i), but would have to bring an 
action for recovery of the amount. The lord may, how- 
ever, distrain on his tenant for non-performance of suit of 
court (c), though he cannot sell the distress (d). As copy- 
holders are not within the provisions of the Statute of 
Merton (^), a copyholder cannot do suit by another person 
acting for him (/). Before admittance a tenant cannot 
do suit of court, but in the case of a person entitled by 
descent, the simimoning him to attend and sit upon the 
jury would be equivident to an admittance by implica- 
tion {g)y though it is otherwise in the case of a surrenderee 
attending before his formal admittance. In some manors it 
is not the practice to summon a fresh jury whenever a 
court is held, but the same tenants are simunoned for 
successive courts, valiancies in the list being filled up from 
time to time by the steward, or by the permanent foreman 

(y) B^field y. Adam, 3 Bulfl. 80. {e) Litt. b. 226 ; Co. Litt. 151 a. 

(«) Co. Copyh. B. 57. ((Q OomertaU t. M4dgate, Yelv. 

(a) See Baldwin ▼. Budge, 2 Wils. 194. 

20 ; Chetwode y. Cfrew, Willes, 614, (e) 20 Hen. III. c. 10. 

619 n. (/) Sir John BramehU Cote, I 

if) See Bowle9Um y. Alman, Cro. Leon. 104. 

Eliz. 748. (ff) See Co. Copyh. a. 41. 



W8 THE LAW OF COPYHOLDS. 

and the steward together. An tinmarried woman, or a 
, widow, it was said, might do suit of oourt, and might sit 
on the homage in a oostomaiy oourt (A), but for a married 
woman seised of a copyhold suit of oourt should be done 
by her husband (t) ; but as a woman married after the 
31st of December, 1882, or whose title to a copyhold accrues 
after that date though she was married previously to that 
date, may now hold and dispose of her real property as if 
she were ^feme soky it would seem that a married woman 
will be entitled now to do suit of court herself, if it be 
required (A;). One of several joint-tenants or parceners 
may do suit for the rest (/), but tenants in common must 
severally do suit (m). Infants during wardship are excused, 
but all other copyholders must perform the service in 
person as already mentioned. 

6. HerioU. 

Copyholders are frequently subject to the payment of 
heriots upon any change in the tenancy, or upon the death 
of the tenant only. 

There are several kinds of heriots, some of which are 
due only from freehold tenants. The cases distinguish 
between heriot-service, suit-heriot, and heriot-custom ; for 
heriots, it is said, may be by tenure, reservation, and 
custom (n). 
Heriot« Heriot-service depends on the condition of the orimial 

86FV100 

grant of a fee simple tenancy of freehold land made before 
the statute Quia Emptores (18 Edw. I.). It consists in the 
lord's right to seize the best beast or chattel of a tenant 
dying seised of an estate of inheritance, and is recoverable 
by seizure or distress (p). The seizure may be made any- 

(A) Oiib. Ten. 324 n. («), 475. (it) See Co. Ck>p7li. b. 24 ; Eitch. 

(t) See Eedd ▼. ChaUner^ Gro. Juiisd. tit. Heriot; Woodlands ▼. 

Eliz. 149*, and Oo. Litt. 66 a. Manta, Howd. 94 ; Lanyon y. 

{k) iS & 46yiot. 0. 76, ss. 2, 6. Came, 2 Wma. Saund. 165. 

(/) Go. Litt. 67 a, 164 b. (o) F^er y. KnoU, Cio. EUx. 82; 

{m) J^ru0rt^*$ Gate, 6 Bap. 1 a, Co, Cop/h. b. 81. 



INCIDENTS OF COPYHOLD ESTATES. 19^ 

where, for the property in the heriot vests in the lord 
immediately on the death of the tenant, and the lord is 
entitled to take it as his own property {p) ; and it has been 
held that the lord may seize it in the hand of a purchaser, 
unless the sale was in market overt (q). No beast or 
chattel, except those which belonged to the deceased 
tenant, can be thns seized (r). A distress for heriot- 
service can only be made upon the tenant's land within the 
manor (a) ; and, in this case, the lord might distrain on 
any beasts and goods liable to distress found upon the 
land (t). If the lord purchase any part of the land in 
respect of which the heriot-service is due, the heriot- 
Bervice would become extinct ; but if the tenant first sells 
a part of the land to a stranger, and then sells the residue 
or a portion of the residue to the lord, the heriot-service 
would still be due to the lord from the portion held by the 
stranger (u). The question as to the period after which 
a right to heriot-service will be barred under the provi- 
sions of the Limitation Acts of 1833 (x) and 1874 (y) wiU 
be discussed later (2). 

Suit-heriot, which is often included in the description of Suit-heiiot. 
heriot-sarvice, is seated by contract, being due on some 
special reservation in a grant or lease of freehold lands 
made in modem times (a). It is little more than an ad- 
ditional rent, and is not necessarily restricted to the taking 
of the best beast, or to the case of a tenant dying seised in 
fee of the land. 

Suit-heriot being considered as a kind of rent, the lord 
cannot seize, but must either distrain or bring an action 

(jp) Woodland y. Mantel, Flowd. Mod. 230. 

94 ; Auttin ▼. Bmnet, 1 Balk. 356. (m) Chapman y. PmdUton, 2 

(q) Kitoh. JuriBcl. 265, dting Brownl. 293; 8. C. nom. TalbotU 

Yearb. Mich. 16 Edw. III. Caae, 8 Bep. 104 b. 

(r) Mtyor t. Srandwood, Gro. Gar. (x) 3 & 4 Will. lY. o. 27. 

260. (y) 37 & 88 Viot. o. 57. 

(<) Auttin T. Bennet, 1 Salk. 356. (s) Fost, p. 212. 

(i) See Major ▼. JBrandwood, Cro. (a) See Fark$r v. Oage^ 1 Show. 81 ; 

Our. 260; Oihom y. Steward, 8 X<^0»y. Ciirfi^,2Wm0.Saimd, 165« 



300 



THE LAW OP COPYHOLDS* 



Seiiot* 
onstonx. 



Its nature. 



for non-payment ((). A sepaxate distress must I)e made 
for each suit-heriot reserved (c) . 

Heriot-custom is of a different kind, and is usuallj aa 
incident of copyholds, though it is also f oimd in freehold 
manors, where the tenants are subject to oustomaiy 
rules (d). It differs from the yarieties already described 
in being no part of the actual tenure, but only its 
customary incident or fruit, and in not having the 
qualities which distinguish a paiyment in the nature of 
a rent (e). 

The custom may authorise the lord to take one heriot 
on the death or alienation of any tenant without respept. 
to the nimiber of his tenements ; or, as is more usual, to 
take a heriot on the death of every tenant for each of his 
copyhold tenements, and a heriot on every change of the 
tenancy of each tenement (/). The custom is sometimes 
confined to the case of a tenant dying seised, and being 
succeeded by the heir ; but it is often more extensive, and 
a heriot of this kind may by custom be payable on the 
death of any tenant, whether holding an estate of in- 
heritance, or for life or years, or even a tenancy at 
will(^). It differs further from heriot-service and suit- 
heriot in this respect, that heriot-service and suit-heriot 
are usually confined to a right of taking the best beast or 
chattel, but heriot-custom is more varied in its incidents, 
being entirely regulated by the local usage. It may 
extend to the best beast, or the second best, or to several, 
or to animals of a particular kind, as '^ claw-foot '' or 
^* doven-footed " animals ; or it may be confined to " dead 
goods," excluding animals altogether ; or the right may 



{b) Edwardt v. MowUy, WilleB, 
192. 

(e) JEtoff&Ti Y. Birkmire, 2 Stra. 
1040. 

{d) See AhingUm y. Lipieomhe, 1 
Q. B. 776 ; DamereU t. Ji-otheroe, 
10 Q. B. 20. 



{e) Batingttohe {Mayor of) ▼« 
Bolton (Lord), I Dr. 270. 

(/) See Watk. Copyh. ii. c. 6, 
and Appendix^ for the pnstoms of a 
large number of manors respecting 
heriots. 

(ff) See Mix y. Gardiner , 2 Bula. 
195, 196. 



1 
* 



INCIDENTS OF CX)FYHOLD ESTATES. 201 

haye been oommuted in ancient times for some small fixed 
payment; and the custom may extend to some tene- 
ments in the manor and not to others, or to a particular 
class of tenements, there being no general rule in the 
matter (A). 

Where the custom is that every tenant shall be liable When doe. 
to the payment of a heriot on death, it will be due on the 
death of a tenant in remainder as well as on that of the 
tenant in possession (})/and from the widow or widower 
upon the determination of his or her tenancy by death, 
whether the tenancy is of the whole or of a portion only 
of the estate, unless there is a custom to excuse them {k). 
Where there are joint-tenants or coparceners, no heriot 
will be due till the death of the last survivor, unless their 
estate is changed to a tenancy in common or in sever- 
alty (/) ; but as tenants in common are severally seised, a 
heriot will be due on the death of each of them (m). 
It was formerly the rule that where a female copy- 
holder married, her husband and she became seised of the 
tenement as tenants by entireties, and so if she died 
in the lifetime of her husband, no heriot was due, because 
she had no heriotable chattels (n), and if her husband died 
in her lifetime no heriot was due on his death, because 
there was no change in the tenancy {o) ; but it would ap- 
pear that as a woman married after the 31st of December, 
1882, is now entitled to hold as her separate property all 
property, whether real or personal, belonging to her at the 
time of her marriage, or afterwards acquired by her, as if 
she were a feme sok^ her separate estate might be held 
liable after her death to a daim for a heriot in respect of 
her real estate (p). No heriot is payable in respect of any 

(A) See Kitch.JxiziBd. tit Heriot, (I) Fadwiek t. J^^ndah, 1 E. & 

aod Watk. Gopyh. ii. c. 6. E. 184. 

(*) See Gab. Tea. 172, 173; (o) See Co. Litt. 186 b, 861a. 

Chapmm r, Sharpe, 2 Show. 184. (p) 46 & 46 Viot. o. 76, 8S. 2, 6, 



202 



THB LAW OF CJOPTHOLDS. 



Separate 
heriots due 
for separate 
tenements. 



equitable estate (9). It has been held that by speoial 
custom a heriot might be due on the death of the head of 
a corporation (r). 

A heriot-oustom upon alienation is of the same nature 
as a fine upon alienation, and maj be due by special 
custom from one of seyeral joint-tenants or coparceners, 
who alienes his share of the copyhold {s). 

No heriot of either kind is due from a surrenderee before 
admittance, but it has been suggested that his heir upon 
admission would be compellable in equity to make good to 
the lord the loss that he may have sustained by the neglect 
of the surrenderee to be admitted (t). This does not appear 
to be warranted by the authorities, which rather show that 
courts of equity persistently refrained from giving the lord 
any aid in getting a heriot (u). 

When the freehold inheritance of a copyhold is granted 
to a stranger, so that the copyhold is seyered from the 
manor, it has been said that the grantee of the freehold 
may seize heriots under the custom (x), but this seems to 
be doubtful. In the case of the Bishop of Gloucester v. 
Wood (y), it appeared that the bishop, who was seised of 
the manor of D., had demised certain lands to A. and B. 
during the lives of their three children, subject to the pay- 
ment of rent, and to the delivery of two best beasts upon 
the death of every cestui-que'vie. Thereafter, the bishop 
demised all the manor to W., under render of the ancient 
rent. On the death of the cestui-que-riesy it was held that 
the right to the heriots went with the reversion. 

If a copyholder holds several heriotable tenements of 
the same manor, a heriot will be due for each tenement, 



{q) Trin, Coll., Cambr.y.Broume, 
1 Vem. 441. 

(r) Tearb. Mich. 6 Edw. IV. 
fo. 72 b; and see Fisher, Copyh. 
81, n. 

(«) See Sorir. Copyh. 377. 

{t) SeeWatk. Gopyb. ii. 147, n., 
•od Sony. Copyh. 877, n. 



(«) Wirty V. FemberUm, 2 Eq. 
Gas. Abr. 279 ; Basingstoke {Mayor 
of) V. BoUon (Lord), 3 Dr. 60. 

{x) Beale y. LangUy, 2 Leon. 
209 ; 8. C, 4 Leon. 230 ; Murrsll y. 
Smith, 4Bep. 24 b. 

(y) Winch, 46, 67. 



INCIDENTS OF COPYHOLD ESTATES. 203 

nnless there is a oastom to the oontrary, as in the manors 
of Framfield and Mayfield, in Sussex, where onlj one 
heriot is due bj the oustom, though the tenant dies seised 
of several tenements. 

The lord cannot distrain for heriot-oustom, except by Remedies for 
virtue of a special custom (z) ; but as the property in the ouAtom. 
heriot vests in him immediately on the tenant's death, he 
may seize the heriot in any place (a). But if he is entitled 
to the best beast, the property will not vest in him until he 
has made his selection, and once he has selected, he will be 
bound, though it should turn out he did not take the best 
beast {b) . A bond fide sale in market overt, by the executors 
of the deceased tenant, will defeat the lord's title to a 
particular beast or chattel, which might have been claimed 
as the best (c) ; but a bequest by the deceased tenant would 
not have the same effect (d). The lord will lose his heriot 
if the tenant has not any beast at the time of death or 
alienation (e) ; but if he is deprived of his heriot by the 
fraud of the tenant, he may bring an action to recover 
the value of the heriot imder the provisions of sections 
2 and 3 of 13 Eliz. c. 5 (/). If the heriot is eloigned or 
removed so that the lord cannot seize it, he may bring an 
action in the nature of trover or detinue against the person 
detaining it {g). 

In the case of heriot-custom, if the custom is that on the Effect of 
death of every tenant the lord shall have a heriot, the fh^a^^y 
heriot will still be due, notwithstanding a purchase by the the lord 
lord of part of the tenement, because the copyholder will 

(s) BogerY, Birimire, Lee, temp. 689; Ahington v. Lipteombe, 1 Q. B. 

Hardw. 245.; Hungerford y. Savi' 776. 

landf 3 BuJb. 323, 326 ; BanngstoU {c) Eitch. Joriad. 266 ; and see 

(Mayor of) v. BolUm (Xor<Q, 3 Beer t. Sumphr&g, 2 A. & E. 495. 

Dr. 60. (<Q Go. litt. 186 b. 

(a) B^hrT. Oags, 1 Show. 81 ; {e) ShawT, Taglor, Hob. 176. 

Bro. Abr. tit. Heriot, pi. 2, 6, (/) Cresswell v. Cohe, 2 Leon. 8. 

and 7. {jg) Oo, (Dopyh. s. 81 ; Bro. Abr, 

[h) Odihan y. Smith f Cro. Eliz. tit. Heriot, pi. 6, 9, 



204 



THB liAW OF COPYHOLDS. 



Extmgfoiah* 
ment of 
heziotB. 



When heriots 
multiplied* 



still be tenant as to the residue (e) ; and if the tenement 
esoheats to the lord, and he grants it out again, he maj 
reserre a heriot on such fresh grant, and it will not be an 
objeation to suoh a grant that two heriots are expressed to 
be reserved, where in former grants only one had been 
so reserved, if it be by reason of the severance of the 
heriotable tenement (/). 

The right to take heriots will be destroyed on enfran- 
chisement of the land, or extinguishment of the copyhold 
tenure (^). And now, under the provisions in the Copy- 
hold Acts, the lord or the tenant or owner of any land 
liable to any heriot may compel the extinguishment of the 
heriot (A). The question as to the effect of the limita- 
tion Acts in barring the right to heriots will be discussed 
later (t). 

Where a heriot is due by custom for each tenement, the 
heriot will be multiplied if the tenement should be divided, 
as if the owner should devise or alienate by parcels (k) ; 
and it was at one time held that the estates will always be 
chargeable with the multiplied heriots, although the sepa- 
rate tenements may have afterwards come into the same 
hands (/). But a devise or alienation to joint-tenants or a 
descent to coparceners can have no such effect, until their 
estate is severed or altered in quality. Tenants in common 
will pay the multiplied heriot, whether their shares are 
separate or undivided ; yet if before actual severance the 
common shares are reunited in the same hands, the tene- 
ment is considered not to have been divided, and the heriots 
will not be multiplied (w). 

The doctrine of multiplying heriots was established by 



{$) Chapman y. I^mdleUm, 2 
Biownl. 298. 

(/) Doe d. Soberts v. Whitaker^ 
3 N. & M. 226. 

{g) See 0. zi. pott, 

(h) 60 & 61 Yiot. o. 73, b. 7. 



(i) Fo9t, p. 212. 

{k) Snag y. Fox, Palm. 342. 

(/) AUree y. Seutt, 6 East, 476. 

(m) Garland y. JekyU, 2 Bing. 
278 ; HoUoway y. Berkeley, 6 B. & 
C, 2. 



JNCn>EKTS OF COPYHOLD ESTATES. 205 

the oase of Attree y. Scutt (n), and seems to have been 
based upon the following statement made bj Fitzherbert^ 
apparently founded on some early case which is not reported 
in the year-books : " If my tenant who holds of me by a 
heriot alienes part of his land to another, each of them is 
chargeable to me with a heriot, because it is entire ; and if 
the tenant purchases the land again, yet if I were seised 
of the heriot by the other man I shall have of him for each 
portion a heriot" {o). The same authority was thus cited 
by Comyns : " If tenant by heriot-service alienes parcel, 
the heriot shall be multiplied, and if the lord be seised of 
a heriot by the alienee it shall continue, though the tenant 
re-purchase the parcel {p). In the case of Attree v. Scutt (n) 
it was held that, where a copyhold was devised to two 
persons in common, the owner of each portion was liable 
to a separate heriot and fine, and that if one surrendered 
to the use of the other the tenements remained separate ; 
and it was said that if land held by an indivisible service 
is separated and afterwards imited, the services would 
continue to be payable, not as for one tenement, but for 
each portion, for they would not again become one tene- 
ment in respect of the lord {q) ; and that this doctrine was 
as applicable to estates held in common as to those in 
severalty. But in the case of Garland v. Jekyll (r). Best, 
C. J., entirely denied the authority of the passage from 
Fitzherbert, observing that there must be some great 
mistake about it, and that perhaps it was but a decision at 
Nisi Prius. In this case it appeared that two heriotable 
tenements held of the manor of Weeks Park Hall, in 
Essex, had become through various descents divisible into 
some twenty-two separate estates, which had all become 
vested and re-united in the person of Sir T* C. Bunbury< 
The plaintiff, as lord of the manor, claimed that he was 

(ft) 6 East, 476. {q) See BrusrtwCt Cms, 6 Bep. 

(o) Fitz. Abr. tit. Heriot, pi. 1. la; Talbot't Case, 8 Bep. 104 b; 
Ip) Com. Dig. Oopyh. (K. 19). ZqfiekPt Ca$e, 10 Bep. 106a. 

(r) 2 Bing. 273. 



206 THE LAW OF OOPYHOLDS. 

entitled to twenty-two heriots ; and the qaestion for the 
opinion of the Court was whether he was entitled to more 
than two heriots, and, if so, to how many. In deliyeiing 
the judgment of the Court, Best, C. J., pointed out that no 
onBtom had been proved requiring the payment of multi- 
plied heriots after there had been a re-union of estates, and 
that consequently it was unnecessary for the Court to 
determine whether such a custom would be good or not. 
The point for their decision had been discussed as a ques- 
tion of law, "and we are to say whether without any 
custom being found it is the necessary legal consequence 
that, when an estate has been divided and again re-united, 
all the heriots are to be paid after the re-union of the 
several estates that were paid whilst it was divided : we 
say that there is no such law, and no such doctrine." 
The Court accordingly held that only two heriots were 
payable on the death of Sir T. C. Bunbury, notwithstand- 
ing the tenancy in common that had intervened in the 
descent of the tenements down to him. 

The case of Holloway v. Berkeley («), still further broke 
down the doctrine laid down in Attree v. Scutt. It was 
there held that the creation of a tenancy in common, until 
a severance is made, does not destroy the imity of the tene- 
ment, so that the heriots will not in such a case be multi- 
plied. " The authority from Fitzherbert is the case not 
of the creation of a tenancy in common, but of a severance 
of the estate into distinct parcels, and the alienation of one 
of those parcels of the land to others. It does not appear 
from Fitzherbert whether that was the case of a copyhold 
or a freehold tenement, but it has been frequently noticed 
in subsequent cases, and it is a relief to us not to be called 
upon to impeach it. Whether it be a right or a wrong de- 
cision we consider to be a matter still open for discussion." 
Effect of As regards freeholds held by an ancient tenure, with 

a nation in h^riot-service forming part of the rent, it would seem that 

(«) 6 B. & C. 2. 



INOIDENTS OP COPYHOLD ESTATES. 207 

the heriot would be multiplied upon alienation. If B. multiplying 
holds of A. by suoh a tenure, and alienes part of his land 
to C. in fee, C. will no doubt hold of A. by the same 
services as were due from B. by force of the statute Quia 
Emptorea of the 18th year of Edward I. ; and the state- 
ment of Fitzherbert might well apply to such a case. So 
if a heriot be reserved upon a modem tenancy of freehold 
lands, it will be in the nature of a rent issuing out of 
the tenement ; and an actual severance of the tenement 
might cause a multiplication of the heriot on account of 
its not being apportionable. But it has been held that as 
the reservation of a heriot is to be construed strictly the 
assigns of a tenant j:?t^r autre vie would not be compelled to 
pay it without an express declaration in the deed to that 
effect {{). 

But as regards heriot-custom in copyholds the case 
appears to be different. For this is not of the nature of a 
rent at all, but merely a fruit or incident of the tenure. 
If the lord purchases part of the tenant's land, the custom 
as to the remainder is not destroyed, because the heriot 
does not issue out of the whole of the land (w) ; it is diffi- 
cult therefore to contend, that on an alienation of part the 
tenant must necessarily have the heriot multiplied on the 
groimd that it is an entire service like rent, but not appor- 
tionable. If the multiplication is to be supported, it must 
be on the express tdhns of the custom, which in these cases 
is always construed strictly ; for, as above mentioned, it 
may be the custom in freeholds or in copyholds that but 
one heriot shall be paid on death for all the tenements of 
which the tenant died seised, or again that if a man dies 
tenant of several heriotable tenements he shall pay several 
heriots, or that on the death of every tenant the lord may 
seize a heriot for each tenement or parcel of a tenement {x)^ 
It is true that an ancient tenement when alienated in 

(0 RandaU ▼. Seory, Cro. Car. (n) Ante, p. 203. 

813 ; Ingram t. Tothia, 1 Mod. \x) Ante, p. 200. 

216 ; 8,0,2 Mod. 93. 



208 THE LAIV OP COPYHOLDS. 

paroelB, or Beyered among tenants in common, is divided 
into distinct tenements, both for the purpose of entry under 
distinct titles on the court-roll, and also for the payment of 
customary dues {y). But there may be a re-union if the 
land has not been severed, and in such case the custom 
would not authorise the treating it as if it were made up of 
distinct heriotable parcels. 

It has been a rule of law that the fines and other claims 
of the lord are not to be carried to such an extent as 
to make the copyholder's inheritance worthless (z) ; and 
customs are held unreasonable which profess to give to the 
lord privileges which cannot be reasonably supposed to 
have been reserved by him upon his original grant, such 
as the right to do something which would make the copyhold 
valueless {a). Looking to the original condition of the class 
of persons who grew from tenants at will into copyholders, 
it seems improbable that the custom required them in the 
beginning to forfeit a heriot on death or alienation for 
every parcel of land. There are sometimes express provi- 
sions to meet the case of tenants with several tenements, 
as in the manor of Hemel Hempstead, Herts, where the 
custom is that the lord should have the second best chattel 
on a death, but if any tenant has more than one messuage 
or cottage, he shall pay for every such messuage 12d, and 
for every such cottage 6d. in the name of a heriot (6) ; 
and by analogy to such cases, it is possible that a custom 
to take a heriot on every alienation or death of a tenant 
seised of any severed parcel of an ancient tenement would 
be held to be unreasonable. In the case of Holland v. 
Lancaster (c) a customary relief or alienation-fine, similar 
to a heriot-custom in its nature as not being a rent, but 
not being so burdensome, was held to be void upon the 
ground that it was alleged to be due by custom on the 

(y) Traheme v. Gardner, 6 E. & («) Salidmry {Marquis of) t. 

3^ 9X8. Gladstone, 9 H. L. Gas. 692. 

(«) Per Best, 0. J., in Garland v. (b) See Watk. Copyh. ii, 496. 

Jek^ll, 2 Bing. 273, 294. {c) 2 Ventr. 134. 



h 



INCIDENTS OF COPYHOLD ESTATES. 209 

alienation of any parcel of any lands held of the manor, 
and to be equal in amount to one and a-half year's quit* 
rent, *' so that if one-twentieth part of an acre be aliened, 
the fine is to be paid, and that of the whole rent ; for every 
parcel is held at the time of the alienation by the whole 
rent, and no apportioning thereof can be but subsequent to 
the alienation, and this the whole Court held to be an un- 
reasonable custom." This was the case of a freehold ; but 
the principle there laid down would seem to be applicable 
to the case of a heriot-custom claimed in favour of the lord 
on every alienation of a parcel of a tenement. 

Courts of equity are not disposed to assist the lord in Claims to 
obtaining a heriot where he has no remedy at law for its ^^o^A% 
recovery ; but it would seem that if the lord has clearly a Co^^r*®* . , ^ 

, , , miless ngnt 

legal remedy, which by accident or through some circum- clear, 
stance beyond his control he is unable to enforce, they 
will assist him. In Wirty v. Pemberion{d)y the Court of 
Chancery refused to give relief to the lord of a manor who 
alleged that he was entitled by custom to heriots from his 
freehold tenants upon every alienation or death and that 
ihey made long leases of their tenements, so as to deprive 
him of his heriots, on the ground that such customs were 
oppressive, and that equity never interposed in such cases ; 
and in the case of The Mat/or, 8fc. of Basingstoke v. Lord 
Bolton {e)y where it appeared that the lords of a manor 
claimed certain sums in lieu of customary reliefs and 
heriots out of thirty-eight distinct freehold tenements, but 
that by reason of a confusion of boundaries they could not 
ascertain the particular estates and were therefore unable 
to distrain, a bill by them in Chancery, praying that the 
boundaries might be ascertained, was successfully demurred 
to on the ground that there was no allegation or proof of 
a custom to distrain. But the Court stated that if the bUl 
had shown a long usage to pay rent, but that by accident 
or length of time the boundaries had become confused, it 

(i) 2 £q. Gas. Abr. 279. («) 1 Dr. 270. 

B. P 



210 THE LAW OF COPYHOLDS. 

would have given relief to enable the lords to obtain their 
legal remedy. In a subsequent suit between the same 
pcLrties (/) the lords claimed the same manorial dues as 
rent, or in the nature of rent, to be paid on the death of 
eaoh tenant of the thirtj-eight tenements bj his repre- 
sentatives. It appeared that in some oases the executors 
of a deceased tenant had paid these customary heriots and 
reliefs, but it was not shown that the tenant was in 
possession of all the tenements, and the proportionate 
payment due from each estate was not known. It was 
held, imder the circumstances, that the lords had no 
equity against the executors of the deceased tenant, al- 
though it appeared that in consequence of the descriptions 
having been lost the lords would not have any remedy at 
law(^). 

7. Cudomary Reliefs. 

Their nature. A copyholder may be bound by custom to pay a small 
sum, called a relief, upon every inheritance, and in some 
manors upon every purchase of a tenement ; and elsewhere 
the customary fines on alienation are called reliefs (A). 
They do not appear to be of the nature of a rent, and are 
not recoverable by distress, except under a special custom, 
lioid's the lord's remedy being in general by action (t). As with 

remedy. ^^ relief due at common law from free tenants in socage, 

their amount is usually fixed by reference to the amount 
of the quit rent ; but the payment is generally trifling, 
being fixed at a small sum for every tenant, or at half the 
year's quit-rent, or the like. It has been held that a 
relief is not apportionable (A;), and it cannot be claimed on 
the death of one of several coparceners or joint tenants (/). 

(/) 3 Dr. 60. (i) Kungerford v. Havyland, W, 

{ff) See also Croome y. Guisej 4 Jon, 122; Batinffstoke (Majfor tif)Y. 

Bing. N. C. 148, 160. JSolton (Lord), 3 I>r. 60. 

(h) Go. Litt. 93a, n. 2 (Harg.); {k) Anon,, 3 Leon. 13. 

Co. Gopyh. 8. 26 ; and see Holland {I) Soriy. Gopyh. 369. 

y. Lancaster, 2 Vent. 134. 



INCIDENTS OF COPYHOLD ESTATES. 211 

Beliefs cease to be payable when the land is enfranchised Extmgnlfih- 
under the provisions of the Copyhold Acts, or when the °^®°*' 
copyhold tenure is extinguished {m) : and now, under the 
provisions of the Copyhold Acts of 1862, 1858, and 1887, 
the lord or the tenant or owner of any land liable to relief 
may compel the extinguishment of the relief and the 
release of the land from such payment (n). 

8. Bents. 

The tenant is also liable in most cases to the payment 
of ancient rents of smaU. amount yearly, which are called 
rents of assise or quit-rents, the latter term being appro- 
priate when the payment is made in lieu of all other 
services under some ancient commutation. When the copy- 
hold comes into the hands of the lord, it has been shown 
that he may re-grant it as copyhold, provided that he has 
created no common law interest in the land higher than a 
tenancy at will (o). Upon a grant of this kind he may 
alienate the tenement by parcels, and apportion the rents 
and services, but he must not alter them in any other way, 
as he is " custom's instrument" (j9), and is not permitted ///u^'^ t^. ^t//f 
to create what would in effect be a new copyhold. " H!e>^/'>/-^'»^ 
can neither add to nor diminish the ancient rent, nor ^ 

make the minutest variation in other respects " (^q). Where 
the tenants hold under a corn-rent, or an annual sum of 
money in lieu thereof, in the absence of a custom to the 
contrary the election is with the tenant to pay either in 
money or in com (r). 

The lord may distrain for rents of assise (s), even Lord's 
though the land is in the hands of a lessee (^) ; and, imder '^"^ ^* 
the statute 4 Geo. II. c. 28, he has the same remedies by 

(m) Toti, 0. xi. 2 Q. B. 792. 

(n) 60 & 61 Vict. 0. 73, s. 7. (r) BUweit t. /(W*t#w, 12 C. B. 

(o) AnU, p. 46. N. S. 16. 

\p) Co. Copyh. 8. 41. (») Co. Lifct. 160 b. 

(?) See Dot d. Kayer y. Strickland^ (0 -Ktf «< 7. Doume, 2 Bxownl. 279. 

p2 



212 



THE LAW OF COPYHOLDS. 



Kxtingxiifih- 



Effect of 
Limitation 
Acts on 
heriots and 
other casual 
Beryioes. 



distress for rents of assise as may be had in the ease of 
rents reserved upon a lease. The lapse of twelve years 
will now bar the lord's right to recover (u). For any 
arrears of rent the lord will be entitled to bring an action, 
and to recover arrears for six years (x) ; but in such action 
it seems that he must set out the particular lands {p). 

Quit-rents will cease to be payable on extinguishment 
of the copyhold tenure or enfranchisement of the land (z) ; 
and they may be compulsorily extinguished by either the 
lord or the tenant or owner of the land under the provisions 
of the Copyhold Acts (a). 

There has been considerable discussion whether the 
Limitation Acts of 1833 and 1874 (6) apply to proceedings 
for the recovery of heriots and other casual rights or 
services due at uncertain intervals, which may extend over 
a longer time than the periods mentioned in those Acts. 
It should be observed that the old Statute of Limitation, 
32 Hen. VIII. c. 2, did not apply to actions or proceed- 
ings for casual rights or services which might not occur 
within the period of limitation, or which might not occur 
more than once during the lord's or tenant's life, as heriots, 
fealty, customary fines and reliefs, or the like (c) ; as to 
rents and periodical services, including suit of court and 
personal services in the nature of rent, the time of limita- 
tion was fifty years. It seems that when a casual service 
like a heriot was part of an ancient rent-service, as in the 
case of heriot-service due by tenure and recoverable by 
distress, the right to the heriot might be barred by the loss 
of the rent of which it had formed a portion ; but where 
the heriot or other casual service was not part of the rent, 
but only an incidental fruit of the tenure, as where it was 



(«) 8 & 4 Wm. IV. 0. 27, 8. 2 ; 
87 & 38 Vict. c. 67, s. 1. 

(a:) 3 & 4 Will. IV. c. 27, 8. 42. 

(y) See North v. Strafford {Earl 
6f)y 3 P. Wms. 148, 161 ; Baaingttoke 
(Mayor of) y, Bolton {Lord)y 8 Dr. 60. 



(«) Potty 0. zi. 

(a) 60 & 61 Vict. o. 73, 8. 7. 
(*) 3 & 4 Will. rV. o. 27; 37 4 
38 Vict. c. 57. 
{e) BeviCs Case, 4 Bep. 8 a, 10 b* 



INCIDENTS OF COPYHOLD ESTATES. 213 

due hj cnfitoiu and not recoverable by an ordinary dis« 
tressy then no period of Iiinitation for recovery of tbe 
service or the arrears was fixed. 

The difficulty arose from the terms of the Act of 1833, 
by which it is declared that the word "rent," when 
pccurring in that Act, " shall extend to all heriots, and to 
all other services and suits for which distress may be 
made," except where the nature of the provision or the 
context of the Act excludes such construction (d). The 
Act provides that no person shall make an entry or distress, 
or bring an action to recover any land or rent, but within 
twenty years next after the time at which the right to 
make such entry or dietreaa, or- to bring such action, diall 
have first accrued to some person through whom he claims, 
or if such right shall not have accrued to any person 
through whom he claims, then within twenty years next 
after the time at which the right shall have first axxsrued 
to the person making or bringing the same (e) ; and it 
declares that the right to bring an action to recover any 
rent shall be deemed to have first accrued, if the person 
claiming, or the person through whom he claims, shall in 
respect of the estate or interest claimed have been in 
receipt of such rent and shall while entitled thereto have 
discontinued such receipt, at the time of the discontinuance 
of possession, or at the last time at which the rent was so 
received, and if he claims under a conveyance from the 
person who was in receipt of the rent and no one shall 
have been in receipt of the rent under the conveyance, 
then the right to bring the action shall be deemed to have 
first accrued when the person claiming, or the person 
through whom he claims, became entitled to such receipt 
under the conveyance ; and there are other provisions as to 
grants of estates and interests in expectancy, and titles 
under a forfeiture or breach of condition (/). The Act 
also provides that on the determination of the period 

(rf) Sect. 1. W Sect. 2. (/) Sect. 3. 



214 THE LAW OF COPYHOLDS. 

Umited by the Aot, the right of the person to the land oi^ 
rent, for which the action might have been brought, shall 
be extinguished when no action has been taken (g). The 
Act does not apply to rents reserved upon leases for years, 
but only to those which can exist as inheritances distinct 
from the land (as the copyholders' rents above mentioned), 
for which before the Act the person claLming might have 
had an assise or possessory action (A). In Owen v. De 
Beauvoir (t), it was held that the period within which an 
action for recovery of rent must be brought runs not from 
the time when the rent becomes due and remains unpaid, 
but from the last time at which it was paid. In the course 
of the arguments in that case it had been pointed out that 
if the Act were construed in that manner, heriots and 
rents becoming payable at longer intervals than the twenty 
years allowed by the Act might be extinguished without 
any default of the lord, if it happened that the intervals 
at which they became due exceeded twenty years ; but in 
delivering the judgment of the Court of Exchequer, Parke, 
B., said : " But as to heriots, probably the answer to the 
objection may be that in a case similar to that now before 
us the word ' rent ' would not include heriots ; for though 
by the interpretation clause it is made to include them, yet 
that is only where the nature of the provision or the con- 
text does not exclude such a construction ; and it may be 
that the injustice pointed out would afford grounds for 
holding that in the clause now under consideration the 
word ' rent ' does not include heriots. A similar observa- 
tion may be made upon the case of rents payable at greater 
intervals than twenty years." The same view of the 
matter was taken by the Court of Queen's Bench in the 
later case of Earl of Chichester v. HaU{k). There it 
appeared that freehold land was held by heriot, relief, and 
a quit-rent among other services ; and the lord's right to 

is) Sect. 34. (0 16 M. & W. 647; S. C, 6 

{h) Grant v. mis, 9 M. & W. 113; Eioh. 166 (Ex. Ch.). 
Arphbofd r. ScuU^f 9 H. L. 0. 360. {k) 17 L. T. 121. • 



INCIDENTS OF COPYHOLD ESTATE8. 216 

fieiz9 was upheld under the following cirouniBtances. The 
last heriot had been seized in 1804. The next tenant died 
in 1824, but there was no evidence as to seizure on that 
occasion. The lord became owner of the manor in 1826, 
and in 1847 seized a heriot on the death of the tenant. 
No service was proved to have been paid since 1804. The 
Court was of opinion that as no opportunity of seizing a 
heriot had occurred since the lord's estate had become an 
estate in possession in 1826, his right of action was not 
barred, and that there was no presumption that the services 
had been released, but they held that the right to recover 
the quit-rent had been barred. "The second and third 
sections" (of the Act), said Patteson, J., " cannot be put 
together, so as to make the last receipt of a heriot, which 
only falls due at long and irregular intervals, the point of 
time from which the period of limitation begins to run. 
The twenty years must, I suppose, run from the time 
when the right to have the heriot accrued" (/). The latest 
reported case on the point is that of Lord Zouche v. 
Dalbiac (m) ; and there the Court of Exchequer expressed 
great doubt whether, notwithstanding the interpretation of 
rent in sect. 1 of the Act of 1833, either heriot-service or 
heriot-custom was within the provisions of the Limitation 
Acts. The action was one of trespass for seizing and 
taking two horses, and the defendant justified his proceed- 
ings on the grotmd that he had the right to seize the 
horses as heriots, one in respect of each of the two tene- 
ments held by the plaintifiE. On a replication by the 
plaintiff and a demutrer thereto by the defendcmt, it was 
admitted by the parties, for the purpose of the demurrer, 
that more than twenty years before the heriots in question 
became due, a heriot in respect of each of the two tene- 
ments had become due for which the lord did not seize, 
although he could have done so. Eelly, C. B., after 
referring to the terms of sects. 1, 2, 3, and 34 of the Act 

(/) 17 L. T. at p. 122. (m) L. B. 10 Ex. 173. 



216 THE LAW OF COPYHOLDS. 

of 1833 (n)y eaid : ^^ When, therefore, we look at the literal 
words of these sections, it is enough to say that, but for 
sect. 1, the present case would clearly not be within the 
statute. The Court of Exchequer seems to have been of 
this opinion, as appears from the judgment in Choen v. Be 
Beauvoir{p), delivered by Parke, B. No authority or 
dictum has been cited that heriots are within these sections, 
though one would have expected the case to arise more 
than once since 1833, the date of the statute. In con* 
sidering the spirit of the statute, we must remember the 
essential difference between the nature of rent and of a 
heriotw Bent is a noun of multitude, meaning not one 
single sum due at some one moment which may be 
recovered by action, and may be lost if not, but meaning 
a succession of sums of money payable in general yearly, 
or at shorter intervals during the whole time specified. A 
heriotis a right to take a single specific chattel, a right 
arising either upon death or alienation, in a manor. It 
is not of a continuous nature. To apply to such a subject 
words in the statute which are applicable only to con- 
tinuous payments would be to disregard the principle and 
spirit of the statute ; and to apply such words to a case in 
which no opportunity may occur of enforcing the right 
for perhaps twenty, thirty, or forty years, would seem to 
be a total departure from the intention of the legislature"; 
and after referring to the passage in the judgment of the 
Court in Owen v. De BeauvoiVy quoted above (/?), he con- 
tinued: "It is unnecessary for our present judgment to go 
80 far as to say that no case could arise in which ^ rent ' in 
the statute would include heriots. Bearing in mind the 
qualification imposed in sect. 1 upon the meaning of 'rent,' 
* except where the nature of the provision or the context 
of the Act shall exclude such construction,' it is enough 
for us to say that upon the facts before us the nature of 

(ft) See mUy pp. 213, 214. (p) Ante, p. 214. 

(o) 16 H. & W. 547. 



INCIDENTS OF COPYHOLD ESTATES. 217 

the provision excludes the application of these sections to 
' the taking of the heriots in question. This viQw receives 
confirmation from sect. 3, the effect of which, according to 
Otoen V. De Beauvoir {q)y is that the time when the right 
to bring an action to recover rent shall be deemed to have 
accrued, shall be the last time at which any rent was 
received. If, therefore, rent in that section includes 
heriots, the twenty years begin to run not from the time 
when the heriots became due and the lord failed to enforce 
the right, but from the time when the last heriot was 
taken ; so that if the last heriot was taken in 1850 and no 
death occurred till 1873, the lord's titie would be barred 
imder sect. 31, though he had no opportunity of exercising 
his right. The view we take is fortified by the considera- 
tion of sect. 42 " (which provides that no arrears of rent 
shaU be recovered by action, &c., but within six years next 
after the same respectively shall have become due). 
"Now, if 'rent' does anywhere in the statute include 
heriots, it may be in sect. 42, so that the meaning may be 
that the heriots, the right to which accrued in 1873, ccmnot 
be recovered after six years from the time when they 
became due"; and Barons Bramwell, Pollock, and 
Amphlett concurred in the same view. From these cases 
it would appear to be the rule that when a heriot falls due 
the lord should enforce his right to the heriot within six 
years, and if he lets that period elapse without recovering 
the heriot, his right to that particular heriot will be lost ; 
but his title to future heriots wiU not thereby be barred, 
even although the period of twenty years allowed by the 
Act of 1833, or the period of twelve years allowed by the 
Act of 1874, should elapse before another heriot falls due. 
It would also seem to be the better opinion that when the 
word 'rents ' is to be taken as including heriots, it extends 
to all heriots, whether customary or otherwise, and not 

{q) 16 M. & W. 647. 



Sl8 THE LAW OF COPYHOLDS. 

only to heriots for which distress may be inade(r). But 
the Limitation Acts do not in general apply to services 
and suits for which no distress can be made ; customary 
reliefs and customary services or dues, such as fealty or 
suit of court, are not therefore affected by mere neglect 
and lapse of time. 

But what has been said with reference to customary 
dues which are not subject to the Statutes of Limitation, 
must be taken subject to the rule that a custom to be valid 
must be continuous. " Continual usage and practice from 
time inmiemorial makes a custom, and if a custom be dis- 
continued, it is gone"(«). An interruption would cause 
it to cease, and its revival, being within time of memory, 
will be void. This must be understood with regard to an 
interruption of the right ; for an interruption of possession 
only does not destroy the custom, but only makes it more 
difficult to prove ; but after a discontinuance of the right, 
even for a day, the custom will be at an end(^). And 
no doubt very long negligence of the lord to enforce 
his right may be evidence of a release of the customary 
services, on the ground that a man will naturally enjoy 
what is his own, and that he will be presumed not to have 
a right which he claims, if when it would be convenient or 
necessary to him he has never enjoyed it in fact (w). 

When the benefits of tenure are so slight, as in the case 
of trifling quit-rents, that the lord has neglected to assert 
them, no presumption will arise, in the case of freehold 
tenants, that the tenure has thereby been changed (or). 
This applies to copyholds when the manoried courts have 
been held unfrequently, and the lord has had no great 

(r) See judgment of Amphlett, B., (0 Co. Litt. 114 b. 

inZ6uehe(Lard)Y.Dalbiac,'L.'R. 10 (m) See Hillary v. Waller^ 12 

Ex. 172, 182; Darby & Bos. on Yes. jun. 239, 264; Baldwin v. 

StatnteB of Limitation, 208—210, Feach, 1 Y. & 0. (Ex.) 453. 

224, contra. {x) Chichester {Earl of) v. JSTa//, 

(<) Com of TanUtry, Day. 28 b, 17 L. T. 121. 
32 a, 33 b. 



INCIDENTS OF COPYHOLD ESTATES. 



810 



object in daiming the small customary payments. In 
such a case a copyhold might remain in a customary 
tenure for a century, and nothing be done on either side by 
the lord or the tenant ; and on a sale of the land as free- 
hold the Court might refuse to compel specific performance 
of the contract, if the vendor were aware of the dormant 
copyhold tenure (y). If, however, the copyhold has for a 
long time been treated as freehold, an enfranchisement 
will be presumed even against the Crown, if it be in any 
way possible (2). 

When the lord has entered on a copyhold for an absolute 
forfeiture, or even for a forfeiture qiwusque to compel the 
heir to come for admittance, and has held the hmd for 
twelve years, the heir's right to be admitted will be barred 
by the Statutes of Limitation (a), subject to the provisions 
for extending the time in case of disabilities (6). The lord >?m^ *^ ^^'* 
neglecting to enter for a forfeiture will be barred of his ^ ^^' '^^f* 
entry after twelve years (c). 

It has been suggested that a person who should hold 
the land without seeking admittance, either refusing or 
Delecting to fulfil the customary duty, might after the 
statutory period daim under the same Act to hold the 
land discharged of all copyhold services. But it seems to 
be a more correct view that the fealty, suit of court, cus- 
tomary reliefs, and other payments which are not in the 
nature of rent, are not within the Statutes of Limita- 
tion (d) ; and that the land continues to be of copyhold 
tenure imtil something is done which can be treated as a 
positive act of enfranchisement. 



(y) Tumn v. We»t JBromwich 
Union (Guardians o/), 9 W. B. 
166; S, C, 3 L. T. N. S. 662; 
Friee y. Maeaulay, 2 De G. M. & 
G. 339, 344. 

{z) Roe d. Johnson y. Ireland^ 11 
Kast, 280 ; In rt Lidiard and Jack' 
aon^s und BroadUy^s Contraety 42 
Cb. Dir. 254. 



(a) Walters v. Webb, L. B. 6 Ch. 63 1 , 

(*) 3 & 4 Wm. IV. 0. 27 ; 37 & 
38 Vict. o. 67, 8. 6. 

((?) Whitton V. Feaeoek, 3 Myl. & 
K. 326 ; Doe d. Tarrant v. JECellier, 
3 T. B. 162, 172 ; and In re lidiard 
and Jackson's and Broadley^s Con^ 
tract, 42 Ch. Div. 264, 258. 

(rf) See Dart's V. & P. 467. 



220 



THB LAW OF COPYHOLDS. 



Inoide&ts of 
tenure. 



CHAPTER Vn. 

INCIDENTS OF COPYHOLDS {eontinued) ASD MANOKIAL 

FRANCHISES. 

Besides the inoidents of tenure already desoribed, oopy- 
holds are liable to escheat for want of heirs, to forfeitures 
in certain oases, and to several other minor inoidents. 



Nature of 
lord's right. 



Escheai. 

If a copyhold tenant dies intestate and without heirs, 
the lord is entitled to claim the land by escheat, and the 
tenure will thereby be extinguished, but the land may be 
granted out again to be held by copy of court roll if the 
lord has not destroyed its demiseable quality by the 
creation of a common law estate in it {a). It was formerly 
necessary that there should be a presentment by the 
homage of the death of the tenant, and that proclamations 
should be made for the heirs of the tenant, before the lord 
could enter on the land ; but a presentment will now be 
unnecessary, as customary courts may be held and pro- 
clamations made at them without the presence of any 
copyhold tenants, though such proclamations do not affect 
the right of any person not present at the court unless 
notice of the proclamation has been served on him within 
one month (b). Where the lord takes by escheat, he holds 
the land subject to the freebenoh, if any, of the widow of 
the tenaat, and to any lease which may have been made 



(a) Go. Copyh. b. 28; FrenehU 
Cote, 4 Bep. 31 a. 



(«) 4 & 6 Yiot. 0. 3o, 8. 86. 



INCIDENTS OF COPYHOLDS AND MANOUIAL FRANCHISES. 221 

by the copyholder with Ks licence (c). A copyhold cannot 
escheat to the Grown (d). As escheat is grounded on the 
want of a tenant to perform the services due in respect of 
the tenement (e)j there could be no escheat of an equitable Equitable 
estate (/) ; and accordingly where the trusts had come to ^ 
an end, and the trustee was still a tenant on the court 
rolls, it was held that he had a right tp hold as against the 
lord {g). But now it is provided by the Intestates' Estates Intestates' 
Act, 1884 (A), that where a person dies after the 14th of i884. 
August, 1884, without an heir, and intestate in respect of 
any real estate consisting of any equitable estate or interest 
in any corporeal hereditament, whether devised or not to 
trustees by the will of such person, the law of escheat shall 
apply in the same manner as if such estate or interest 
were a legal estate in a corporeal hereditament (t) ; and 
for the purposes of that Act intestacy is defined as follows, 
^^ Where any beneficial interest in the real estate of any 
deceased person, whether the estate or interest of such 
deceased person therein was legal or equitable, is, owing to 
the failure of the object of the devise or other circum- 
stances happening before or after the death of such person, 
in whole or in part not effectually disposed of, such person 
shall be deemed, for the purposes of the Act, to have died 
intestate in respect of such part of the said beneficial 
interest as is ineffectually disposed of " (k). 

On the principle that it was for want of a tenant that TmBt or 
the lord might claim by escheat, it was settled that if a ^JS^^ 
trustee who had been admitted without any reference to 
the trusts appearing on the court rolls, or a mortgagee who 
had been admitted on a surrender in which no condition 
was expressed, died intestate and without heirs, the estate 

(<?) ChantreU ▼. JEtandall, 1 Lev. (/) Burgets y. JThsate, 1 W. Bl. 

20 ; Ihtmer ▼. SodgM, Hutt. 101. 123, 167. 

{d) WdUcer ▼. Bmne, 2 Yes. jon. {g) OaOard ▼. SaUfkitu, 27 Ch. 

170, 187. Dir. 298. 

(0) Att.'Oen. T. Sands, Hatdr. (A) 47 & 48 Vict. 0. 71. 

488. (t) Ibid. s. 4. {k) Ibid. 0. 7* 



222 THE LAW OF COPYHOLDS. 

would have esoheated, and the lord would have been 
entitled to hold the land freed from the trust or the equity 
of redemption ; but if the lord had assented to the trust or 
condition being entered on the court roll, he would have 
taken subject to the trust or condition, for he could not 
claim against his own act (/). But as injustice arose from 
this rule, it was provided by the Trustee Act, 1850 (m), 
that when any person who was seised of any lands upon 
any trust or by way of mortgage dies intestate and without 
an heir, the Court may make a vesting order, which will 
have the same effect as a conveyance by the heir. If the 
mortgagor died intestate and without heirs, and the mort- 
gage was not merely for a term of years, the land would 
not escheat, but the mortgagee will hold the land freed 
from the equity of redemption, but subject to the debts of 
the mortgagor (n) ; but if the mortgagee demanded the 
money from the personal representatives, " the Court would 
compel the mortgagee to re-convey, not to the lord by 
escheat, but to the personal representatives " (o). 

Where the lord takes by escheat, the estate in his hands 
is liable to the debts of the person whose estate has 
escheated {p), A mere contract to sell by the deceased 
tenant will not defeat the lord's right to escheat (q) ; but 
the lord's title to an escheat may be waived by his accept- 
ance of any rent or service in such manner as will amount 
to a virtual admittance from a person in possession of the 
copyhold (r), and will be lost altogether if his claim is not 
made within the period fixed by the Limitation Acts («). 

(/) See JSurffM ▼. JFheatey 1 "W. (o) Per Sir Thos. Clarke, M.R., 

Bl. 123, 167 ; AtL-Om. v. Leeds in Burgeu v. WheaU, 1 "W. Bl. 123, 

.(Duhe of), 2 Myl. & K. 343 ; Gal- 149. 

lard V. Eawkine, 27 Ch. Dir. 298-; {p) Eughet v. WeUe, 9 Haxe, 749. 

Lewin, Trusts, 8th ed. 221, 248. {q) Stephens y. Baily, Kels. Ch. 

(m) 13 & 14 Vict. o. 60, 68. 16, 19. Hep. 106, 107. 

(n) Beale y. Synumda^ 16 Beay. (r) Doe d. Tarrant t. EeUier^ 3 

406; and see Ihvme {Viwount) y. T. B. 162, 171. 

Morris, 3 Hare, 394 ; and Evans y. («) 3 & 4 Will. IV. o. 27, s. 1 ; 

fir<twne, 6 Beav. 114. 37 & 38 Vict. o. 67. 



INCIDENTS OF COPYHOLDS AND MANORIAL FRANCHISES. 223 

Notwithstanding an enfranohisement of the land made Enfranohue- 
since the 16th of September, 1887, the lord is entitled, in ™^ ' 
the ease of escheat for want of heirs, to the same right and 
interest in the land as he would have had if there had 
been no enfranchisement; and accordingly, in making 
valuations for compensation payable to the lord on any 
enfranchisement since that date, the valuers are not to take 
into account the value of escheats (i). 

Forfeiture. 

A copyhold may be forfeited by a wrongful act done to Cause of 
the prejudice of the lord, or by anything which amounts '°"®^*°"' 
to a determination of the tenancy. The f orfeitmre may be 
occasioned by waste, or the creation of an unauthorised 
estate, or by wilful neglect or refusal to perform the 
customary duties and services. All cases of forfeiture are 
strictimmi juris^ and the courts will take care that there is 
the utmost accuracy in the lord's proceedings, and will 
remit the penalty if any irregularity is discovered (m). 
When the law gives the lord another remedy, as where 
the custom imposes a fine for an offence, the forfeiture 
will not be allowed (a?). On the same principle courts of 
equity have frequently relieved against forfeitures, where 
compensation could be made to the lord, it being possible 
to regard the penalty as imposed merely in terrorem^ or as 
a security for compelling the tenant to perform his duties. 
Under certain circumstances the Court has given relief 
even in cases of voluntary waste, or refusal of services, but 
has sometimes put the tenant upon terms of paying the 
costs and repairing the damage; but the relief will be 
refused if the tenant should persist in committing acts of 
forfeiture (y). 

(i) 50 & 51 Vict. 0. 73, as. 4, 5. {y) Peachy y. Somertet {Duke of), 

(u) Doe d. Tarnmt T. EeUkr, 8 1 Stra. 447; Nash t. Derby (Earl), 2 

T. B. 162, 169. Vem. 637 ; Coxy. Higford, 2 Vem. 

(x) FasUm y. Utbert, liti. Bep. 664 ; and geiiaraUjsee Yin. Afar. yi. 

264,267. U2,etieq, 



224 



THE LAW OF COPYHOLDS. 



The proper person to take advantage of a forfeiture is 
the lord of the manor for the time being, however small 
his interest may be (2) ; and the grantee of the freehold 
inheritance of a copyhold is in the position of the lord of 
the manor, so far as forfeitures are concerned (a). 

If the lord dies before any entry or seizure is made for 
a forfeiture, the reversioner or remainderman cannot take 
advantage of the forfeiture, except where the act destroys 
the estate (b). The lord may dispense with taking ad- 
vantage of the forfeiture, either expressly or by implica- 
tion, as by doing any act which requires the continued 
tenancy of the offender (c). The lord must enter for a 
forfeiture within the period allowed by the Statutes of 
Limitation {d). 



Forfeiture for 
felony. 



Forfeiture for Felony. 

Copyholds, until the year 1870, were forfeited to the 
lord by the conviction and attainder of the tenant (ex- 
cept as regards trust or mortgage estates) for treason or 
felony (^), and by special custom by conviction without 
attainder (/). Before the lord's title could vest in him, 
the felony was to be presented and seizure made on his 
behalf {g). No forfeiture was allowed before attainder, 
except by special custom {h) ; but the attainder of an unad- 
mitted devisee or surrenderee did not work a forfeiture (»). 



(2) Meere y. Kidout, Godb. 176. 

(a) Eoit y. Harding^ Gro. Eliz. 
498. 

{b) Go. Gopyh. 8. 60 ; Lady Mon- 
tagueU Casey Gio. Jao. 301 ; Doe d. 
Tarrant r. Hellier, 3 T. R. 162, 
173 ; Doe d. Bover v. Trueman^ 1 
B. k Ad. 736. 

{e) Go. Gopyh. B. 61 ; Miffax y. 
Saker, 1 Ley. 26; Doe d. Tarrant 
Y. Hellier, 3 T. R. 162, 171. 

(<Q WhiiUm y. Feaeoek, 3 MyL & 
K. 325. 



(e) Rex y. Mildmay {Lady)^ 5 B. 
k Ad. 254. 

(/) Bex y. Willea, 8 B. & Aid. 
610. 

{jSi) Oittim y. Cowper, 2 Brownl. 
217 ; Doe d. JEvane y. JEvane, 6 B. 
& G. 684. 

(h) JRex y. Willee, 8 B. & Aid. 
610. 

(i) Roe d. Jeffereye y. Hicke, 2 
Wilfl. 13 ; see Bwneford y. Paekmg' 
ion, 1 Leon. 1. 



INCIDENTS OF COPYHOLDS AND MANORIAL FRANCHISES. 226 

Copyholds, however, axe not forfeitable for outlawry (/). 
As to trust and mortgage estates, it is provided by the 
Trustee Act, 1850 {k) (practically re-enacting the pro- 
visions of the Act 4 & 5 WHl. IV. c. 23, s. 3) that no 
lands vested in any person upon any trust, or by way of 
mortgage, shall escheat or be forfeited to the lord or lady 
of a manor by reason of the attainder or conviction for 
any offence of such trustee or mortgagee, but shall remain 
in the trustee or mortgagee, or survive to his or her co- 
trustee, or descend to or vest in his or her representatives," 
as if no such attainder or conviction had taken place. By 
an Act passed in 1S70, attainders and forfeitures for 
treason and felony, except forfeitures upon outlawry, 
were abolished (/). The Act, however, is in general 
terms, copyholds not being mentioned, and it might be a 
question how far, according to the general rules for inter- 
preting such statutes, it can be extended to take away 
forfeitures from lords of manors, especially where the 
custom authorises forfeiture for conviction of felony with- 
out attainder (w). The Act 54 Geo. III. o. 145, which 
provides that no attainder for felony (except in cases of 
treason or murder) shall prejudice the title of any person, 
other than the title of the felon during his life, has been 
considered not to be applicable to copyholds (w). 

Waste. a*L*% /^ h%^U *j 

Forfeiture for waste is incurred by an act or neglect ^?^ / 2n. -^^j 
which changes the nature of the tenement granted to the /^^^, 2^^ '•^^' 
prejudice of the inheritance (o). Waste is either voluntary 
or permissive, the former including all acts which destroy 
or materially alter the tenement, the latter consisting in 
the neglect of repairs which the tenant is bound to do. 

{J) Gilb. Ten. 242, 328 ; but see 8a; ante, p. 121. 

Co. Copyh. 8. 58. (») Scriv. Copyh, 440, n. 

{k) 13 & 14 Vict. c. 60, fl. 46. \o) Darcy {Lord) v. Askwiih, Hob. 

(0 33 & 34 Vict. 0. 23. 234 ; FhilHpa v. Smith, 14 M. & "W. 

(m) ffei/d(m*a Case, 3 Bep. 7 a, 689. 

E. Q 



226 THE LAW OF COPYHOLDS. 

Courts of equity have usuallj relieved against forfeitures 
for merely permissive waste, if it has not been wilful (p). 
As a general rule, the courts of equity have declined to 
restrain permissive waste, but they have done so under 
special circumstances. Where a tenant for life had pro- 
mised to repair a copyhold tenement, and had so induced 
the tenant in remainder to forego proceedings against him, 
upon neglect of the promise, an injunction was granted to 
restrain the tenant from permitting or suilering any 
further waste (q). Where there is no damage there is no 
waste, and the lord cannot ent^r for a forfeiture (r). The 
lord may enter for waste committed by a copyholder for 
life, though there is another copyhold tenant in re- 
mainder («). 

" If a copyholder," says Lord Coke (t), "commits waste, 
either voluntary or permissive, it is a forfeiture ipso facto : 
voluntary, as if he plucketh down any ancient-built house, 
or if he buildeth any new house and then pulleth it down 
again; or if he plougheth meadow, so that thereby the 
ground is made worse, or loppeth the trees and selleth 
the loppings, or if he cutteth down fruit trees for fuel, 
having other wood sufficient, these and the like voluntary 
wastes are forfeitures : permissive, as if he. sufiereth his 
house to decay or fall to the ground for want of necesscury 
reparations, or if he suffereth his meadow for want of 
mending his banks to be surrounded, so that it becomes 
rushy or worth nothing, or his arable ground so to be 
surrounded that it becomes unprofitable, these and the 
like permissive wastes are forfeitures." 

Waste may be done in houses by pulling them down, or 
suffering them to remain uncovered or to fall into decay ; 
but if the house is uncovered or ruinous when the tenant 

(p) Andrews v. Suite, 4 K. & J. {Earl of )y 5 B. & Ad. 507. ' 

892. («) Doe d. Folkee y. Clements, 2 

{q) Caldwall ▼. Baylie, 2 Mer. M. & S. 68. 

408. (0 Co. Copyh. 8. 67 ; do. litt. 

(r) Doe d. Grubb v. Burlington 63 b. 



INCIDENTS OF COPYHOLDS AND HANORIAL FRANCHISES. 



227 



reoeiyes it, it is not waste to permit it to fall down, though 
it wonld be waste to pull it down (u). It is waste to build 
a new house, or if built to pull it down. A tenant, how- 
ever, may pull down a ruinous house in order to build a 
better one (x). 

It is waste to plough up old pasture, to stub up a wood 
or hedge, to destroy or neglect to repair necessary banks, 
mounds, or drains, and generally to do anything against 
the rules of good husbandry which may damage the 
land(y). 

Where the copyholder is not entitled to the minerals, it 
is WHBte to open a mine or qnairy, or to taie stone, gravel, 
sand, &c., for any purpose, except as reasonable estovers 
for use upon the copyhold tenement (z). 

And so, if the trees do not belong to the copyholder by 
custom, he will have only a possessory interest in them, 
and may only take his reasonable estovers for fuel and 
purposes of husbandry. It will be waste to fell timber- 
trees, or any trees which are not intended for renewable 
underwood, or to do anything which will injure the growth 
of the trees ; and the eradication or the cutting down of a 
fir-tree or other tree which will not grow again, or any 
similar act of destruction, will be waste and will occasion a 
forfeiture (a). 

An injunction against waste will be granted to the 
copyholder against his lessee, to a remainderman against a 
copyholder for life, or to the lord against his tenants (b). 



(») Co. litt. 54 b. 

{x) Hardy y. Beeves, 4 Yes. jim. 
466, 480. 

. (y) See Darey {Lard) r. Aekunih, 
Hob. 234. 

(z) Feaehff r, Somerset {Duke of), 
I Stra. 447 ; £ly {Dean and Ch. of) 
T. Warren, 2 Atk. 189 ; JFinehester 
{Bishop of) Y. Knight, 1 P. Wms. 
406. 



(0) Go. Litt. 53 a ; Swapne*s Case, 
8 Bep. 63 a; FhilHps ▼. Smith, 14 
M. & W. 589. As to what are 
timber trees, see Honywood y. 
Eonywood, L. B. 18 Eq. 306. 

{b) Att.'Gen, y. Vincent, Bunb. 
192 ; Richards y. NobU, 3 Mer. 673 ; 
Farrott y. Palmer, 3 Myl. & K. 639 ; 
Cuddon y. Morley, 7 Hare, 202; 
Tool, Waste, 14. 



q2 



228 THE LAW OF COPYHOLDS. 

AUeratUm of bourktaries. 

A forfeiture may also be inourred by inolosmg without 
authority, or by remoYuig old inclosures, or landmarks, or 
by wilful confusion of boundaries (<?). Where the bound- 
aries of a copyhold have become confused by the fault of 
the tenant, whose duty it is to keep them distinct, the 
Court of Chancery has issued commissions to distinguish 
copyholds from freeholds, and one kind of copyholds from 
another kind, and generally to ascertain the boundaries ; 
^^ and if they cannot be distinguished, to set out lands of 
the tenant of equal value with so much of the copyhold 
lands as cannot be distinguished " (d). To sustain a claim 
of this kind, the plaintiff must establish a clear title to 
some land in the possession of the defendant, and also a 
default or neglect of the defendant, or those from whom 
he claims, and must show that the confusion cannot be 
remedied without the aid of the Court (e). "It is the 
duty of the tenant to keep the boundaries : the confusion 
does not infer any negligence on the part of the lord, for 
the tenant is in possession of the land"(/), and the 
enfranchisement of the land will not relieve the tenant 
from the consequences of a previous neglect of duty to 
keep up the boundaries while he was copyhold tenant {g). 
The relief is given not only against the person guilty of 
the negligence, but also against all claiming under him, 
either as volunteers or as purchasers with notice {h). But 
before obtaining the aid of the Court in a case of confusion 
of boundaries, the lord must disclaim taking any advantage 
of the forfeiture (»). 

(<?) See Paston v. Utbert, Litt. ford {Earl of), 4 Ves. 180, 186. 

264. (^) Searle T. Cooke, 48 Gh. Diy. 

{d) Clayton t. Coolc^i, 2 Aik. 449; 519. 

Leeds (Duke of) v. Strafford {Earl {h) Per Loid Granworih, L. C, 

of), 4 Ves. jnn. 180. in Att,'>Gen. y. Stephene, 6 De G-. 

{e) Miller y. Wartnwgton, IJ. & M. & G. Ill, 134. 

W. 484. (0 JDurham {Eiehop of) y. Eippon^ 

(/) Fer Loid Loaghboroagh, 4 L. J. Gh. 32. 
L. G., in Leeds {Luke of) y. Str^f- 



INCIDENTS OF COPYHOLDS AND MANORIAL FRANCHISES. 229 

Forfeiture for alienation. 

The tenant may incur a forfeiture by alienating the 

land by a common-law deed, as by making a lease for 

more than one year, or whatever period the custom of the 

manor may have fixed for granting leases without licence {k) . 

But no forfeiture is incurred by making a lease for 

the proper period, with a covenant to renew from time 

to time as the lord's licence shall be obtained (/). The 

principle was very clearly shown in the case of Peachy ^r, 

Duke of Somerset (w), where a copyholder prayed to be 

relieved against a forfeiture caused by his leasing part of 

the copyhold tenement for eleven years without licence. 

The Court refused the relief, and said " that a copyholder 

is considered at law as a tenant at will to all purposes 

except the continuance of his estate ; the will cannot be 

determined, except where the custom allows it so to be, 

and in the case of the tenant making a greater estate than 

he lawfully may, that determines the will; for it is an 

usurpation upon the right of the lord, and the cases of 

tenant for life leasing pur autre vie^ or tenant for a great 

number of years leasing for life, have been held forfeitures, 

not from any notion of their intending damage to the 

inheritance, but as it is a quitting or disclaiming their 

ancient right, which is thereby determined." But to 

occasion a forfeiture a common law interest must actually 

pass from the tenant ; thus it will not be occasioned by a 

covenant to lease for more than the authorised period (n), 

or by a feofEment, which has now no tortious operation (o), 

or by a bargain and sale or lease and release, which could 

(h) Co. litt. 69 a; Jackman ▼. vi. 112^114, dUng Shelley y.Masonf 

MaddesdoHf Cro. Eliz. 351. where a copyholder was reUeved 

{I) Lady Montague's Case, Cro. against a similar forfeiture. 

Jao. 301; Lenthall v. Thomas, 2 («) Jackson v. Neal, Cro. Eliz. 

Keb. 267 ; Doe d. Wood ▼. Morris, 396. 

2 Taunt. 62. (o) Co. Litt. 69 a ; 8 & 9 Vict. 

(m) 1 Stra. 447 ; and see Vin. Abr. o. 106, s. 4. 



230 THE LAW OF COPYHOLDS. 

never pass more than the person conveying had a right to 
convey (p). With regard to leases, however, it is to be 
noticed that if a copyholder leases for years without licence 
of the lord, or without a custom to authorise the lease, the 
lessee has nevertheless a good title against every one 
but the lord {q) ; and even as against the lord a lease not 
warranted by the custom may become good for as between 
the parties to the lease and the lord, the demise against 
custom is only a ground of f orfeitiure which the lord may 
waive (r). But the acceptance by the lord of quit-rent 
from the lessee to whom the lands have been demised 
without his licence has been held not to prevent the lord 
from recovering in ejectment against the lessee («). Where 
the copyholder obtains the lord's licence to demise, the 
licence operates as a confirmation of any lease which is 
made in accordance with its terms, and a subsequent 
forfeiture by the copyholder will not affect the lease, and 
pending the term created by the lease the lord cannot bring 
an action to recover the land (f). The lord cannot be 
compelled to grant a licence to demise, for the granting or 
refusing of a licence is a matter which is wholly within 
his discretion (u). 

Negkct qfsef^vices. 

Other forfeitures may be occasioned by the tenant's 
wilful (a?) refusal to pay his rent (y) , fine (z) , suit of court (a) , 
or other services, after sufficient notice ; or to be sworn on 
the homage after receiving a personal notice to attend, or 

(p) London^ s Case, dted Godb. («} Doe d. Nunn ▼. Zufkin, 4 

269 ; Watk. Ck>pyh. i. 328. East, 221. 

(q) DouminghamU Caee, Owen, 17 ; (0 Clarke y. Arden, 16 G. B. 227. 

Smith ▼. JPaekhurtt, 8 Atk. 135, (m) £eff, v. Sale, 9 A. & E. 339. 

141 ; Doed. Tresiddery, Tretidder, 1 {x) See Trottet' y. Blakej 2 Mod. 

Q. B. 416. 229. 

(r) Lady MontagueU Case, 1 Salk. (t/) Crisp y. Fryer, Cro. Eliz. 606. 

186 ; Doe d. :Robinton y. Bouafield, 6 («) WiUowee' Cote, 13 Rep. 1. 

Q. B. 492. (a) Belfield y. Adams, 3 Bills. 

80. 



INCIDENTS OP COPYHOLDS AND MANORIAL PRANCH18E8. 231 

to make proper presentments after being sworn ; or if he 
formally disclaims his tenure (d). But it is no cause of 
forfeiture to be unprepared to pay a fine at once, the 
amount of which is in the lord's discretion. ^' Though a 
fine assessed be reasonable, yet the lord ought to appoint 
a certain day and place where it should be paid, because it 
stands upon a point of forfeiture of the estate, and the 
copyholder is not bound to carry his fine always with 
him "(c). It has been already mentioned that in certain 
manors the copyhold is forfeited to the lord if the person 
entitled to admittance (not being a minor, or otherwise 
disabled from coming) does not come within a certain 
period after due proclamations have been made {d). The 
refusal of the customary services is held to be a breach of 
the condition on which the land was granted ; " the con- 
sideration failing, the lord resumes his grant" {e). 

Bight of Estovers. 

Copyholders, being bound to keep their houses and lands 
in a proper state of repair and cultivation, are entitled to 
reasonable allowances of wood for repairs, and stone, sand, 
&c., for purposes of husbandry, and wood or peat for 
fuel(/). These allowances are called estovers or botes, 
but the term is sometimes applied only to the allowance of 
wood. All these rights may be subject to customary 
restrictions, as that they shall only be taken after view 
and delivery by the lord or his bailiff, and the like {g). 
The various rights of taking wood may be classified as 
follows, the general term estovers including 1. house- 
bote (or "the greater house-bote"), being the liberty of 
taking timber-trees for repairing houses, or rebuilding 

(^Eitoli.JiiziBd.l76;Co.Gop7li. (/) Heydon ▼. Smithy 18 Bep. 

B. 57. 67 ; Athmead v. Banger j 1 Ld. 

{e) WilhwM' Case, 13 Bep. 1 ; Baym. 551. 
Gilb. Ten. 219. (^) See Seffdon t. Smithy 13 Bep. 

(li) Ante, p. 72. 67. 

{e) Watk. Copyh. i. 329. 



' 



232 THE LAW OF COPYHOLDS. 

ihem after aooidental destmction {h) ; 2. fire-bote (or 
" the lesser house-bote"), being the liberty of taking the 
tmderboughs of timber-trees, tops and lops of pollards, 
cuttings of trees made in a reasonable manner, so as not 
to injure the growth, deadwood, windfalls, and underwood, 
for fuel in the house; 3. plough-bote, or the liberty of 
taking timber or other wood for repairing waggons, carts, 
ploughs, and implements of husbandry, and 4. hedge- 
bote (or "hay-bote"), being the liberty of taking sufficient 
wood for making and repairing the walls, gates, hedges, 
fences, and enclosures. 

Trees and Mines. 

In the absence of a special custom the lord is the owner 
of all trees upon the copyhold land, and of all minerals 
upon the surface, or in quarries or mines underground; but 
the tenant has a possessory interest, and will be protected 
against any invasion on the part of the lord(t). The 
following extract from the judgment of Sir George Jessel, 
M.Ei., in the case of Eardly v. OranvilU (j), contains a clear 
statement of the law on this point. "The estate of a 
copyholder in an ordinary copyhold is an estate in the soil 
throughout, except as regards for this purpose timber-trees 
and minerals. Ajs regards the trees and minerals the 
property remains in the lord, but in the absence of custom 
he cannot get either the one or the other, so that the 
minerals must remain unworked, and the trees must remain 
uncut. The possession is in the copyholder ; the property 
is in the lord. If a stranger cuts down the trees, the 
copyholder can maintain trespass against the stranger, 
and the lord can maintain trover for the trees. If the lord 



(A) But B66 BUwttt T. Jenkins, 281 ; Whiteehureh t. Holworthy, 4 

12 G. B. N. S. 16. K. & S. 340 ; 8, C, 19 Yes. jon. 

(i) Flayer v. Hoberts, "W. Jon. 214 ; ffext Y. Oitt, L. R. 7 Oh. 699 ; 

243;J?owr«dV. Tayfor, lOEast, 189; Eardly y, Granville, 3 Oh. Dir. 

Grey v. Northumberland {Duke of), 826. 

18 Ves. jun. 236 ; S. jC. 17 Vee. jun. (J) 3 Oh. Diy. 826. 



INCIDENTS OF OOPTHOLDS AND MANORIAL FRANCHISES. 233 

oats down the trees, the copyholder can maintam trespass 
against the lord; b^t if the copyholder cuts down the 
trees, irrespeotiye of the question of forfeiture, the lord 
can bring his action against the copyholder. So in the 
case of minerals. If a stranger takes the minerals, the 
copyholder can bring trespass against the stranger for 
interfering with his possession, and the lord may bring 
trover, or whatever the form of action may be now, against 
the stranger to recover the minerals. The same rule 
applies to minerals as to trees. If a tree has been cut 
down, the lord cannot compel the copyholder to plant 
another. The latter has a right to the soil of the copyhold 
where the tree stood, including the stratum of air which is 
now left vacant by reason of the removal of the tree. So 
if the lord takes away the minerals, the copyholder becomes 
entitled to the possession of the space where the minerals 
formerly were, and he is entitled to use it at his will and 
pleasure.^' But the course of usage may show that in a 
particular manor the minerals belong to the lord without 
any possessory title in the tenant; and in the mining 
districts of the Northern Counties, where it is usual for 
the mineral strata to belong to separate owners, the pre* 
sumption as to the owner of the surface having possession 
of all underground minerals is of much less force than else- 
where (*). The lord may prove a right to enter upon the 
copyhold to dig for minerals, the usage showing what the 
nature of the original grant to the copyholder had been. 
But no claim of the lord to a privilege which would have 
destroyed the value of the original grant can be sus- 
tained (/). In Hilton v. Chranville {Earl) (w), it was held that 
a lord could not set up a custom to dig minerals under the 
copyholds of the manor so as to let down the surface of the 
land ; and the Court said that '^ even if a grant could be 
produced in specie, reserving a right in the lord to deprive 

{k) See Barnes r. Mawson, 1 M. Q. B. 701 ; but see Salitbury (JTar- 

ft S. 77, 84. ^it of) v. GladsUme, 9 H. L; Gas. 

(/) Wilkes Y. Broadbent, 1 Wile. 692, 701, 707. 
63; mUM V. GranviUe {Bart), 6 (w) 6 Q. B. 701. 



minerals. 



234 THE LAW OF COPYHOLDS, 

the grantee of the enjoyment of the thing granted, such 
a clause must be rejected as repugnant and absurd"; but 
this later dictum has been overruled (n), and considerable 
doubt now exists whether Hilton v. Qranville {Eartj is good 
law(o). But even though it is not easy "to define the 
meaning of the word 'reasonable' when applied to a custom 
regulating the relation between a lord and his copyholders, 
as that relation must have had its origiu in remote times 
by agreement between the lord, as absolute owner of the 
whole manor in fee simple, and those whom he was content 
to allow to occupy portions of it as his tenants at will" (/?), 
it is submitted that any custom alleged by the lord, of 
which the effect would be to destroy the value of his grant, 
would be deemed unreasonable, unless it could be clearly 
shown to have existed from time immemorial, and to have 
been acquiesced in by the copyholders. 
What are Every substance which can be got from underneath the 

substance of the copyhold tenement for the purpose of 
profit is included in the term " minerals" (^) ; and it has 
been held that coprolites beneath the surface and china 
clay are minerals, and that the property in them is in the 
lord (r). Where the lord has the minerals he has a right 
to make a tramway through the subsoil of the copyhold, 
provided it is for the purpose of working such minerals, 
and to carry along such tramway any minerals which he 
may work and win within the manor, but he is not entitled 
to drive carriages along this tramway for any other 
purpose than that of working the minerals within the 
manor («). As however the copyhold tenant has in the 
absence of custom a possessory interest in the minerals, 
his consent must be obtained before the lord can work the 

(fi) Bowhotham ▼. Wilson, 8 H. bury {Marquis of) v. Gladstone, 9 

L. Gas. 348. H. L. Cas. 692, 701. 

(o) See remarks of Oockbum, {q) Hext ▼. QUI, L. B. 7 Gh. 699. 

C. J., in Blaeketty. BradUif, 8 Jur. (r) Att,-Gen, v. Tomline, 6 Oh. 

K.8.588, 690;aiidofLordGheIin8- Diy. 760; S. C, 16 Ch. Div. 160 

ford in Buceleugh {Duke of) v. Wake- (C. A . ) . 

Jleld, L. B. 4 H. L. Cas. 877, 410. («) Bowser t. Maciean, 2 De G. 

{p) Per Lord Oranworth in Salis- F. & J. 416. 



INCIDENTS OF COPYHOLDS AND MANORIAL FRANCHISES. 236 

minerals; and on aooonnt of this possessoij interest the Damages to 

.. •j^j 'J 1 tenant for 

tenant may mamtain trespass against any person who wionffftd 

by means of an entry made on the adjoining lands takes "^or^^fir. 

away the minerals (^). If the lord takes the minerals 

without obtaining the consent of the tenant he will be 

liable to him in damages. The measure of damages will Measure of 

be the net return from the sale of the minerals, less such a ^^' 

sum by way of profit as would induce a third person to 

undertake the working of the minerals. This rule was 

thus stated by Ery, J., in Attorney-General v. Tomline {u). 

" The copyholder is in the position of being able to say to 

the lord of the manor you shall never get the minerals. 

His consent must, therefore, be purchased from him by 

the lord if he wishes to get them. Everything, therefore, 

which arises from the sale of the minerals, and which is not 

necessary to repay the outlay for the working and to induce 

a third person to undertake the working, would naturally 

come to the person who can prevent the minerals from being 

dug (x). He has an absolute veto. The value of that veto 

appears to me to be the value of the minerals, less so much 

money as would induce a third person to get them, that is, 

the measure of damages would be the net returns from the 

sale of the minerals, less such a sum by way of profit as 

would induce a third person to undertake the enterprise." 

By special custom copyholders of inheritance, or those Special 
who have ou equivalent estate, as tenants for Uves with ^'"*^°^' 
right of renewal or of nominating the successor, may be 
the absolute owners of the trees upon their lands, or the 
minerals upon the surface or in quarries and mines, and in 
such a case they may cut timber for sale, or open mines 
and quarries {y). But such a custom cannot be sustained 



(4 Lewia y. Branthwaite^ 2 B. & (y) JRowles y, Maton, 1 Brownl. 

Ad. 437. 132 \ 8, C. 2 Brownl. 86, 192 ; 

(tt) 6 Oh. Div. 760, 768. Blewett v. Jenkins, 12 0. B. N. S. 

{x) The minerals in this case 16. 
were coprolitee. 



236 THE LAW OF COPYHOLDS. 

by copyholders for lives with no right of renewal (2). 
Under onstoms of this kind, copyholders have been held 
entitled to take for their own property the copper, coal, 
brick-earth, sand, and other metalliferous substances, ores 
and minerals, within their copyhold tenements (a). And 
it has been held, that a custom empowering the tenants to 
take one sort of mineral might possibly be evidence of 
their right to take minerals of other kinds (6). It is 
provided by the Prescription Act, 1832 (c), that no claim, 
which can be lawfully made at the common law by custom, 
prescription, or grant, to any profit in another's land, 
where such profit shall have been actually taken and 
enjoyed by any person claiming right thereto without 
interruption for the full period of 30 years before a suit or 
action, shall be defeated or destroyed by showing only 
that such profit was first taken at any time prior to that 
period, but nevertheless that the claim may be defeated in 
any other way, by which it might have been defeated at 
the time of the passing of the Act ; and when such profit 
shall have been so taken for a period of 60 years before 
the suit or action, the right is to be deemed absolute, 
unless it appears that the same was taken by some consent 
or agreement expressly made or given for that purpose by 
deed or writing. This provision has been held not to apply 
to the case of copyholders claiming minerals or other profits 
in their own tenements by custom (rf). As will appear 
later (&), there is no rule as to the extent of evidence which 
is required to establish a custom, or from which the pre- 
sumption or inference of the fact of a custom may be 
rightly drawn. "It is the province of a jury to draw 

{z) Mardiner v. EUioitf 2 T. B. {b) Wincheiter {Bishop of) v. 

746. Kniffht, 1 P. Wms. 406 ; and see 

(a) Sanmer v. Chance^ 4 De Q. Curtis v. Baniely 10 East, 273. 
J. & S. 626 ; Salisbury (Marquis of) (e) 2 & 3 WiU. IV. o. 71, s. 1. 

y. Gladstone, 9 H. L. Gas. 692 ; {d) Jlantner v. Chance, 4 De G^. J. 

Wakefield y. Buccleugh {Duke of), & 8. 626. 
L. B. 4 H. L. Gas. 377. {e) Post, o. z. 



INCIDENTS OF COPYHOLDS AND MANORIAL FRANCHISES. 



237 



these oonolusions of fact. There are several reported 
cases in which the Courts have refused to disturb the 
verdidB of juries as to a custom in a manor even when the 
evidence was very slender "(/). But it must be remem- 
bered, that the evidence of user will not support the claim 
by custom, if it can be shown independently that the 
custom could not have had a legitimate origin, as being 
unreasonable under the circumstances, or did not in fact 
exist at some period since the commencement of legal 
memory {g). The absence of any mention of the right in 
a formal statement of the customs of the manor made 
under proper authority would upset the claim (A). " If a 
custom existed at a particular time to give the tenants a 
right to the minerals, it is natural to expect that they 
would not omit it in an elaborate and minute statement of 
the customs "(t). And in the same case it was said, even 
though there were instances of surrenders reserving 
minerals, surrenders of minerals separately, and several 
instances of working for minerals, that ^4f there be an 
agreement or acting by any of the copyholders, under 
circumstances which render it impossible to believe in 
the existence of the custom at the time when they 
so acted and agreed, that acting and agreement must 
be evidence whereby the jury would conclude (if it 
be proved to have occurred after legal memory) that 
the custom did not then exist, that it is not a custom 
from time immemorial, and that the subsequent usage 
is referable to usurpation and not to right "(/); and in 
the case of Portland {Duke of) v. Hill{k), where there was 
sufficient evidence to prove a custom of this kind if there 



(/) Per Lord VTeetbury, L. 0., 
in Sanmer y. Chaneef 4 De Q. J. & 
S. 626, 636 ; see Doe d. Maton y. 
MoMOHy 3 Wils. 63 ; Boe d. Bennett 
y. Jepry^ 2 M. & S. 92. 

(^f See Tywn y. Smithy 9 A. ft 
E. 406 ; Mill y. New Foreet CommiS' 
iioner, 18 C. B. 60. 

(A) AngUeey (Mwrquie of) y. 



HatheHon {Lord), 10 M. ft W. 
218 ; Portland {Duke of) y. Mill, 
L. B. 2 Eq. 765. 

(«) Per Lord Abinger, G. B., in 
Angleeey {Marquie of) y. Hatherton 
{Lord), 10 M. ft V\r. 218, 241. 

{j) Per Aldenon, "B,, Ibid, at p. 
244. 

(h) L. B. 2 Eq. 765. 



238 THE LAW OF COPYHOLDS. 

were nothing to the contrary, the existence of a oustomaiy 
of the manor compiled within legal memory was held to 
be conclusive eyidenoe against the existence of a custom to 
take minerals which was not mentioned therein. 

Manorial Franchises. 

It will be convenient to mention here some of the more 
important franclnse8 and priyilegea which are not infre- 
quentlj claimed by lords of manors, either by grant from 
the Crown, or by prescription through long enjoyment, 
and which may be exercised by them not only over the 
wastes but in some cases over the lands which are held or 
are parcel of the manor. 

Free-warren. 

Every lord of a manor has, hy virtue of his ownership 
of the soil, the right to sport and shoot over the wastes of 
the manor, and to kill game there, subject to the pro- 
visions of the Ghame Laws, and by ancient reservation or 
custom he may have similar rights over the copyholds, 
which are parcel of his manor; and a compulsory 
enfranchisement of the copyhold will not deprive him of 
these rights without his express consent in writing (/) ; he 
has"^ no right merely as lord, and in the absence of any 
right of free-warren, to sport over the freehold lands, 
which are held of the manor or are within its ambit (m). 
Lords of manors, however, frequently possess rights of 
free-warren, either by virtue of a grant from the Crown, 
or by prescription implying a grant (n). A grant of free- 
warren confers on the person entitled to it a right to 
preserve and keep, as his own property, the beasts and 
fowls of warren within certain limits, and to prevent all 
other persons from killing or taking them {o). According 



(/) 15 & 16 'Viot. 0. 61, B. 48. (fi) The C<u» of Moncpoliet, 11 

(m) Keble t. Eiekringill, 11 Mod. B^. 84 b, 87 b ; Beauehamp {Barl) 

74 ; Bruce v. RelUioell, 6 H. & N. v. Winn, L. B. 6 H. L. 223, 238. 

609, 620. (o) 2 Blaokst. Comm. 39. 



INCIDENTS OF COPYHOLDS AND MANORIAL FRANCHISES. 239 

to Lord Coke, the term beasts of warren inolude hares, 
conies, and roe-deer, while among fowls of warren are 
comprised partridges, quails, rails, pheasants, woodcocks, 
mallards, and herons (p) ; but in Barringtan'a Case (q), it 
was ruled that the only beasts and fowls of warren are 
hares, conies, pheasants, and partridges. It has been 
expressly decided that grouse are not fowls of warren (r). 
A grant of &ee-warren usually gives the right to the 
grantee ^'within all his demesne lands" in the manor. 
The effect of these words wsa considered in the case of the 
Attorney-Oetieral v. Parsons («), and in deliveiing the 
judgment of the Court of Exchequer Lord Lyndhurst, 
C.B., said, "though the word * demesne' may in some 
cases be applied to any fee simple lands a man holds, yet 
it is more correct and usual to apply it to the lands of a 
manor, which the lord of that manor either actually has 
or potentially may have in propriis manibm.^' If the 
person having the right of free-wairen alienes his lands, 
but reserves the free-warren to himself, such a reservation 
would be effectual, and the free-warren would then be a 
warren in gross, but if the lands are conveyed without 
any reservation or express mention of the right, it will be 
extinguished (^). A conveyance of the manor, "together 
with the appurtenances," will not carry a right of free- 
warren (t^), unless the right of free-warren has actually 
become appurtenant by prescription {x). 

Questions as to the existence of rights of free-warren 
frequently arise in cases where the waste lands of a manor 
have been inclosed under the provisions of an Inclosure 
Act, and have been allotted in severalty. It may be said 
to be the general rule that when a part of a waste is 

(i^)Co. Litt. 233 a. pi. 3. 

[q) 8 Rep. 136 b, 138 b. (u) Bawhtm v. ffardy, Gro. Eliz. 

(r) Devonthire {Duke of) v. Lodge, 647. 

7 B. & G. 36. (x) See Morrit v. Bimee, 1 A. & 

(«) 2 Gr. & J. 279, 308. £. 654, and 44 ft 45 Yiot. o. 41, 

(Q Yearb. Pasch. 35 Hen. YI. fo. 8. 6 (3). 
55 b, pi. 1. Bro. Abr. tit. Warren, 



240 THE lAW OF COPYHOLDS. 

allotted to a person in respect of his former rights of 
common, and is allotted expressly as freehold, the fact of 
such allotment gives the sHoiieQ primd fade "the right of 
shooting game upon that freehold as fully as any owner 
of land in this coimtry has the right of shooting game 
upon his own land " (y). But it frequently happens that 
the Inclosure Act contains words which seem to indicate 
that although the allottees were to have freeholds, they 
were not to have the right of shooting, and that it was 
intended to reserve the right to the lord. In such cases 
the question will depend solely upon the construction of 
the Inclosure Act, but the Act will in all cases be con- 
strued most strictly against the lord of the manor, the 
courts having held that when the lord claims the right of 
shooting, he must show that the Act reserves the right to 
him, either in express terms or by necessary implication (z). 
On forfeiture to the Crown, the franchise is not merged in 
the prerogative (a). 

Estrays. 

The right of estrays is another franchise which the lords 
of manor may possess, either under a grant from the 
Crown, or by prescription (ft). Estrays are defined by 
Blackstone as " such valuable animals as are found wan« 
dering in any manor or lordship, and no man knoweth the 
owner of them ; in which case the law gives them to the 
King as the general owner and lord paramount of the soil, 
in recompense for the damage which they may have done 
therein ; and they now most commonly belong to the lord 
of the manor by special grant from the Crown. But in 

(y) Per Lord Esher, M. B., in Eioart v. Graham^ 7 H. L. Cas. 

Devonshire {Duke of) v. O'Connor, 331; Sobinton v. JTraj/f L. B. 1 

24 Q. B. Diy. 468, 473. G. P. 490. 

{z) Devonshire {Duke of) y. 0' Con^ (a) Abbot of Strata Mereslla's Case, 

nor, 24 Q. B. Div. 468 ; Sowerby v. 9 Bep. 24 a ; Eeddy v. Wheelhouse, 

Smith, L. B. 9 G. P. 624 ; Leconjield Gro. Eliz. 591. 

{Lori) y. Dixon, L. B. 3 Ex. 30; {b) Go. Litt. 114 b. 



N 



INCIDENTS OF COPYHOLDS AND MANORIAL FRANCHISES- 241 

order to vest an absolute property in the Xing or his 
grantees, they must be proclaimed in the churoh and two 
market towns next adjoining to the place where they are 
f oundy and then, if no man claims them after proclama- 
tion and a year and a day passed, they belong to 'the 
Eing or his substitute without redemption, even though 
the owner were a minor, or under any other legal inca- 
pacity "(c). As swans and cygnets are royal fowl, they 
may be taken as estrays (a?), but no other animals fer(B 
natures can be taken as estrays {e). If the owner of the 
estray claims it within the year and day, showing sufficient 
proof of his property in the animal, and offers a reason- 
able sum for the expense of feeding it, the lord is bound 
to deliver up the estray (/). During the year and day 
the lord cannot put the estray to any work (g). If the 
period of a year and a day elapses without any claim 
being made, the estray becomes the property of the lord, 
and he may bring an action for its recovery against any 
one who takes it from hiTn (A). On forfeiture to the 
Crown the franchise becomes extinct («). 

JFaif. 

A lord of a manor may claim to have waifs, either by 
grant from the Crown, or by prescription. Waifs, bana 
icaviata^ are goods which are stolen and waived by a thief 
in his flight, and they are forfeited to the Eing, or to the 
owner of the franchise, as a punishment to the owner for 
not having himself pursued the felon and taken away his 
goods from him {k). But if the person robbed makes 

(c) Blaokst. Gomm. i. 297. (g) Boffahatce y. Goward, Gro. Jao. 

{d) Yearb. Paach. 7 Hen. VI. 147 ; Oxley v. JFaUa, 1 T. R. 12. 

fo. 27 b^ pi. 21 ; The Case of Stcana, (A) Burdet y. Mathetoman, Olayt. 

7 Rep. 16 b. 107. 

(e) 4 Inst. 280 ; Blackst. Comm. (i) Abbot of Strata Mereella' 9 Case, 

i. 298. 9 Rep. 24 a; Seddy v. Wheelhouse, 

(/) Taifhr v. Jamee, Godb. 160; Cro. Eliz. 691. 

Ble^n v. Gomoor, Hatt. 66. (k) Foxley's Case, 6 Rep. 109 a. 

£. R 



242 



THE lAW OF COPYHOLDS. 



fresh suit, that is, immediately follows and apprehends 
the thief or procures his conviction, the goods are not 
forfeited (/) ; and if the thief does not take to flight, hut is 
apprehended with the goods, the owner will have them 
witiiout question (w). Ghoods which are stolen but are 
left by the thief in his house, or in the custody of some 
other person, are not strictly waifs, even although the 
thief should afterwards take to flight, and accordingly 
may be re-taken by the owner without fresh suit (n). The 
lord of the manor must seize the goods as waifs before 
they can become his proi)erty (o). Forfeiture to the 
Grown extinguishes the franchise (p). 

Wreck, 

The right to have wreck of the sea is often claimed by 
the lords of manors on the sea coast, either by virtue of a 
grant from the Crown, or by prescription (q). The right 
to wreck may exist apart from the ownership of the fore- 
shore on which the wreck is taken (r). When the right 
is claimed as belonging to a manor by prescription, ,'* it is 
a great presumption that the shore is part of the manor," 
because otherwise he who claims the wrecked goods could 
not get them («). The grant of a manor on the sea coast 
by the Crown does not of itself include the right to take 
wreck, even though the grant expressly includes the shore 
as parcel of the manor, or although it is shown by 
evidence of acts of ownership that the shore is parcel of 
the manor, for the right to take vnreck is a prerogative 



{I) Diekson^a Case, Hetl. 64 ; 24 
& 26 Vict. 0. 96, 8. 100. 

(m) Daviet* Case, Gio. Eliz. 611. 

(m) FoxUy^s Case, 6 Hep. 109 a. 

(o) Blackst. Comm. i. 297. 

(p) Abbot of Strata Mercella^s Case, 
9 Hep. 24 a. As to the rights of 
the owner of stolen goods to re* 
cover his property notwithstanding 



a sale hj the thief, see 24 & 26 
Yict. 0. 96, s. 100; Lee y. £ayes, 
18 C. B. 699 ; and Wells y. Abra- 
ham, L. B. 7 Q. B. 664. 

{q) Sir Henry Constable's Case, 6 
Hep. 106 a. 

(r) Dickens v. Shaw, reported in 
Hall, Sea Shore (ed. 1876), App. 

(«) Hale, De Jure Maris, c. vi. 



IKCIDENTS OF COPYHOLDS AND MAKORIAL FRAX0H19ES. 243 

light, and will not pass without exprefis words nsed for 
that purpose {t), Beputation is not admissible to prove 
that a lord has a presoriptiye right to all wreck within the 
boundaries of his manor (u). If the manor is forfeited to 
the Crown, the right to take wreck, whether expressly 
granted along with the manor or appendant by prescrip- 
tion, will be extinguished, and will not pass on a re-grant 
of the manor without express words (a?). In order to 
constitute legal wreck it is necessary that the goods should 
come to land ; and if within a year (formerly a year and 
a day) the owner of the goods lays claim to them and 
proves his right of property, they will not be forfeited as 
wreck (y). Formerly it was held that the grantee of a 
right to take wreck had a special right of property in all 
goods stranded within his liberty, even before he had 
taken possession of them, and although the owners might 
claim them within a year and a day, and accordingly could 
maintain an action, either of trespass or of trover, against 
any person who took them away (s) ; but now all pro- 
ceedings in the case of wreck are governed by the pro- 
visions of the Merchant Shipping Acts (a). All wrecks 
are now to be reported to the person who has been 
appointed by the Board of Trade as receiver of wreck for 
the district, and he is to take possession of the same, and 
within forty-eight hours of his taking possession he has to 
send a description of the wreck and of any marks by 
which it is distinguished to the lord of the manor within 
the district who claims to be entitled for his use to 
unclaimed wreck, and who has abeady furnished him with 
particulars of the title under which the claim is made (6). 

(0 See Scrotum y. Browny 4 B. & Ezoh. 127, 130. 
C. 485, 497; and Hall, Sea Shore (y) Blackst. Gomm. i. 291. 

(ed. 1875), 19, 20. (z) Dunurich {Bailiffs, ^. of) v. 

(tf) Talbot y. LewiSf 1 0. M. & Sterry, 1 B. & Ad. 831. 
B. 496. (a) 17 & 18 Yiot. o. 104 ; 18 & 19 

{x) Ahbot of Strata MereeUaUCasey Yiot. c. 91; 25 & 26 Yiot. o. 63; 

9 Hep. 24 a, 25 b; Northumberland 43 & 44 Yiot. o. 22. 
{Duke <if) y. Houghtm, L. B. 5 {h) 17 & 18 Yiot. c. 104, 8. 464. 

Ii2 



244 THE LAW OF COPYHOLDS. 

If no person establishes a claim to the wreok mthin a 
year of its coming into the possession of the receiver, the 
wreck will then be given up to the lord on payment of all 
ezpensesy fees, and salvage {c). 

Fairs and Markets, 

Lords of manors may claim the franchise of holding 
fairs and markets, either by grant from the Crown, or by 
prescription {d). It has been held that uninterrupted 
user for twenty years gives a primd facie right to hold a 
fair or market, and furnishes an answer to an indictment 
for a nuisance to a highway, but will not exempt the 
person who asserts the right from proceedings for usurpa- 
tion of the franchise (e). If the grant is in general terms, 
the fair or market may be held at any place within the 
manor which is most convenient, and the lord as owner 
may change the site as may be necessary (/), provided 
that he does not thereby interfere with the rights of other 
persons {g). The right to take tolls for the goods which 
are sold is not necessarily incident to a market or fair, but 
the owner of the franchise usually has such a right, either 
by express grant, or by prescription. The dues charged 
must be reasonable, for it has been held that a grant of 
tolls which are excessive is void (A). If no toll is due, 
either by grant or prescription, or if the duties granted 
axe held to be unreasonable, the market or fair is accounted 
a free market or fair, and any petBon may buy or BeU 
goods therein without paying any toll, and it has been 
held that the Crown cannot afterwards grant the right to 
take tolls to the owner of such a market or fair without 
some proportionable benefit to the subject {i) ; but the 

(o) 17 & 18 Viot. 0. 104, 8. 471. {ff) EUit ▼. Bridgnorth [Jfayor, 

(d) 2 Inst. 220; Co. Litt. 114 b; ^. qf)y 16 0. B. N. S. 52. 

Bee Trotter v. Sarrit, 2 Y. & J. 285. (A) Heddy v. JTheelhoute, do. 

(e) Sex y. Smith, 4 Esp. 111. Eliz. 558, 591, 592. 

[/) RexY,CotterillylB.ScAld.67. (») 2 Inst. 220, oiting Cm 



INCIDENTS OP COPYHOLDS AND MANORIAL PRANCHISES. 



245 



owner of the franohise may have the right to take piokages 
and stallages, which are payments in respeot of breaking 
up the ground and exclusively occupying a portion of the 
soil, and these payments will as a rule be due when the 
owner of the market is owner of the soil whereon it is 
held {k). The owner of a market may bring an action for 
disturbance of his franchise, and recover damages against 
a person erecting a stall on his own ground within the 
limits of the market and allowing the sale of goods there, 
even though not taking any toll (/), and he may by law 
have the right to prevent persons selling goods in their 
private houses, or shops, within the limits of his 
franchise (m). A sale by sample within the market is a 
disturbance of the right, but not if it is merely near to 
but without the limits, unless it was done designedly and 
with the intention of evading payment of the toll (w). A 
custom to erect booths on the wastes of a manor during a 
fair has been held good(o). The franchise of holding a 
market or fair will be forfeited by mis-user or non^user (jt?) ; 
but forfeiture of the manor to the Crown will not extin- 
guish the franchise (q). 

It may be mentioned that fairs and markets are some- 
times established by Acts of Parliament. The provisions 
usually contained in these Acts are consolidated in the 
Markets and Fairs Clauses Act, 1847 (r). The Fairs 
Act, 1871 («), enables the Secretary of State for the Home 
Department, with the previous consent in writing of the 



of Norihamplon Markety adjudged 
Mich. 39 & 40 Eli2. 

(k) Northampton {Jfayor, ^e, of) 
y. Ward, 2 Stra. 1238 ; Great Yar- 
mouth {Mayor, ^e. of) v. Oroom, 
1 H. & C. 102. 

(/) MoaleyY. Chadwick, 7 B. & G. 
47| n. ; and see Great Eastern Rail. 
Co, y. Goldamid, 25 Ch. Dly. 511 ; 
8. C, 9 App. Cas. 927. 

(m) Moaley v. JFalkor, 7 B. & 0. 



40; Penryn {Mayor of) v. Bett, 3 
Ex. Div. 292. 

(w) Brecon {Mayor, %€, of) v. 
Edwards, 1 H. & G. 51. 

{o) Tyson v. Smith, 6 A. & E. 745. 

(jo) Case of Leicester Forest, Cro. 
Jac. 155. 

{q) Abbot of Strata Meroella's Case, 
9 Rep. 24 a. 

(r) ID & 11 Vict. 0. 14. 

(») 34 & 36 Vict. c. 12. 



246 THE LAW OF COPYHOLDS. 

owner of the fair, or of the tolls or dues, to abolish any 
fair upon representation duly made to him that it will be 
for the advantage of the public that the fair should be 
abolished ; and an Act passed in 1873 (^), gives the Home 
Secretary power to change the day on which a fair is 
held. 

IS^ank'foldage. 

In some parts of the country, particularly in the eastern 
counties, lords of manors claim to have the liberty of 
frank-foldage. This right may be claimed, either by 
virtue of a grant from the Crown, or by prescription (m) ; 
and it entitles the lord, or other person who possesses it, 
to have all the sheep, within his manor or within a 
particular district, folded upon his lands at night {x). 
Fold-course. The right of frank-foldage is quite distinct from the right 
of fold-course, which is a right of common of pasture 
appurtenant to land for the feeding of sheep (y). The 
distinction between these two rights appears in the case of 
Sharpe v. Bechenowe (s), where the defendant claimed to 
have the right of depasturing sheep on the land of the 
plaintiff by virtue of a liberty of foldage and fold-course, 
which he claimed by prescription. On a motion in arrest 
of judgment on a verdict for the defendant, it was argued 
for the plaintiff that the prescription to have foldage could 
not extend to depasturing the sheep, " because the nature 
of foldage is only to have the sheep (but not my own) 
folded on my lands in the night-time," and that the right 
to fold-course was inconsistent with the liberty of foldage, 
for foldage "is a liberty to have another man's sheep 
folded on my land, and a fold-course is to have pasture for a 
certain number of my own sheep upon another man's 

(t) 36 & 37 Vict. c. 37. Pasch. 1 Hen. VII. fo. 24, pi. 17. 
(m) Co. Litt. 114 b. (y) Robinson y. Duleep Singh, 11 

{x) "Williams, Commons, 276; Ch. Div. 798. 
Tearb. Hil. 3 Edw. III. fo. 3, pi. 7 ; {z) Lutw. (Ndson's ed.) 398 ; and 

Pasch. 8 Edw. HI. fo. 87, pi. 48 ; BW^Dickman v. AUen, 2 Ventr. 138. 



INCIDENTS OF COPYHOLDS AND MANORIAL PRANCHI8E8. 247 

land"; and these arguments prevailing judgment was 
stayed by the Court. The nature of the right of f old- 
oourse has been considered in later oases, and it has been 
held that it is not a several right to the herbage, but is a 
right of common of pasture for sheep appurtenant to 
land {a) ; and that it may be appurtenant to a manor, and 
in such a case it may be divided, or be annexed to peorcel 
of the manor (6). 

{a) Sobinson y. Duleep Singh, 11 {b) Spooner y. Day, Gzo. Gar. 

Gh. Diy. 798; Muagrave y. Caw, 432; /va^^y. Jfafm, 3H. &Qr. 691. 
WilldB, 319 ; flee do. litt. 6 a. 



248 



THE LAW OF COPYHOLDS. 



CHAPTER VIII. 



RIGHTS OF COMMON. 



Lord entitled 
to soil of 
numoiial 
wastes. 



Rights of 
copyholders 
over wastes. 



In this chapter it is proposed to discuss the various rights 
and privileges which exist in and may be exercised over 
the waste lands of a manor, and other commonable lands. 

It is a presumption of law that the lord is entitled to 
all the manorial wastes, and accordingly it is not essential 
for him to show any acts of ownership over such lands in 
order to prove his property in the soil (a), the existence of 
a manor only in reputation being sufficient evidence of the 
title (6). But in most manors it will be found that the 
tenants, both freehold and copyhold, and in some cases 
even persons having no connection with the manor, being 
neither owners nor occupiers of any tenement held of it, 
are entitled to exercise over the wastes various important 
rights and privileges known by the general name of rights 
of common. Owing to the nature of these rights, and to 
the relation in which they stand to the rights of the lord, 
it is necessary to consider them somewhat in detail. 

First, as to the rights of copyhold tenants. It is a rule 
of law that no one can be entitled by custom to take the 
profits of another man's soil (c), and that the taking must 
be justified under a grant, or by way of prescription (d) ; 
but there is an exception in the case of copyholders, who 
are allowed by the necessity of the case to claim by custom 



(a) Doe d. Dunravm y. JFiUiams, 
7 0. & P. 332. 

(b) Curzan v. LomaSf 6 Esp. 60. 
{d) BUwett y. Tregmning^ 3 A. & 



E. 664; Att.'Om, y. Maihias, 4 
K. & J. 679. 

{d) Mellor y. SpaUman, 1 Wms. 
Saond. 339. 



RIOHTS OF COMMON. 249 

against the lord of the manor (e). There are some oases In 
which it is difficult to distinguish the presoriptiye claims 
of freehold tenants from the customary claims of copy- 
holders, where the freeholders form a homogeneous hody 
of tenants, subject to customary duties to the lord of the 
manor, and are entitled each by a separate prescription to 
rights of common upon the waste (/). 

The copyholders are allowed to claim against the lord Copyholders 
by custom, upon the ground that they could not otherwise claim by 
establish a right of common at all, being in theory the o^sto™. 
lord's tenants at will, and that a claim by prescription 
could not be made by such tenants on the landlord's soil, 
for this would in effect be a claim by a man to have 
common on his own land, as the prescription would be laid 
in his name, and the essence of a right of common is that 
it should be claimed in the land of another person (g). 
But where copyholders claim a right of common outside Except where 
the manor, this difficulty does not arise, and they are no outride the 
longer obliged or permitted to set up a custom, but can manor, 
prescribe in the name of their lord, alleging that he and 
they whose estate he has from time immemorial have had 
the privilege for themselves and their tenants at will (A). 

By the customs of various manors, rights of the follow- Varions kinds 
ing kinds may be enjoyed by the copyholders : — common. 

1. Common of pasture upon the wastes appurtenant to 
the copyhold lands for so many cattle as the lands will 
sustain, or for a fixed number, according to the usage (t) ; 
and when a number of copyholders hold an open field in 
undivided shares, each tenant has usually a right at certain 
seasons of the year to pasture his cattle over the land of 

(tf) GatewartTa CoMf 6 Bep. 50 b ; (p) Foiaton y. Craehroodey 4 Bep. 

FoUion y. Craehroodey 4 Bep. 31b; 31b. 

and see Auttin y. Amhurat, 7 Ch. {h) JSarwick y. MaUheta$f 5 Tannt. 

Diy. 689. 365. 

(/) See JFarriek y. Queen'a CoU (i) Morley v. Cliffordy 20 Ch. Diy. 

Ug$, Oxfordy L. B. 6 Ch. 716 ; B^U 753. 
y. Thompaon^ ibid, 732. 



250 THE LAW OF COPYHOLDS. 

all the others, which may be viewed as a reciprocal right 
of pasture appurtenant to each of the undiTided traie- 
ments. 

2. Common of estovers, or rights of taking wood from 
the waste for use upon the copyhold tenement, similar to 
the right of estovers possessed by the tenant over the wood 
growing on his copyhold land, which has already been 
described (A:). This kind of common, as well as those 
which axe next to be mentioned, may be limited either by 
the requirements of the tenant, or by some fixed limit of 
quantity, according to the usage. 

3. Eights of t6Jdng underwood and such products as 
furze, fern, thorns, hay, and rushes, which resemble the 
common of estovers, and are sometimes included in its 
definition (/). 

4. Common of turbary, being the right to take turf or 
peat fit for fuel, to be used for burning in the copyholder's 
house {m). In some manors there is a customary right of 
taking coals for fuel, which is similar in its incidents to 
the common of turbary (n). 

5. Eights of taking minerals from the waste for use 
upon the copyhold land, as stone, sand, clay, and ores of 
various kinds {o). 

6. Common of piscary, being the right of taking fish 
for food from the streams and ponds belonging to the 
lord {p). By pcurticular customs the copyholders may 
also have other rights similar in their nature to those 
which have been described. 

<< These several species of common," it has been re- 

{k) Ante, p. 231. Ea^t, 121. 

{I) Smith V. Broumlow (Sart), (») Portland {Duke of) v. Sill, 

L. B. 9 Eq. 241 ; Warrick t. L. B. 2 Eq. 765. 
Queen's College, Oxford, L. B. 6 Gh. (o) Luberley y. Page, 2 T. B. 391 ; 

716 ; De la Warr (Bart) v. Miles, Shakeepear v. Peppin, 6 T. B. 741. 
17 Ch\ Div. 636. {p) TiUmry v. Silva, 46 Ch. Div. 

(m) Valentine v. Penny ^ Noy, 145 ; 98 ; Lloyd ▼. Jones, 6 G. B. 81 ; 

Ely (Bean and Ch. of) v. Warren, Bland y. Lipseombe, 4 E. & B. 

2 Atk. 189; Wilson v. WilUs, 7 712, n. 



RIGHTS OF COMMON. 251 

marked, '^ when originally established in our law had all 
reference no doubt to the same object as common of 
pasture, viz., the mainte>nance and carrying on of hus- 
bandry, common of piscary being given for the sustenance 
of the tenant's family, common of turbary for his fuel, 
and common of estovers for repairing his house, his 
instruments of tillage, and the necessary fences of his 
grounds" (§'). 

' Copyholders cannot claim a right of common of pasture Common 
appendant, in the proper sense of the word, that being ^^t be 
a right given to freehold tenants of ancient arable land daimed by 
by virtue of their original grants (r). The land need 
not be arable at the present time, but if it is arable the 
right can be claimed without evidence of actual user, and 
if it is not arable at present the continual usage of the 
right will be evidence that it was arable originally («). 
'' It is not to be understood that every tenant of a manor 
has by the common law such a right, but only that certain 
tenants have such a right, not by prescription, but as a 
right by common law incident to the grant. ... This right 
is not a common right of all tenants, but belongs only to 
each grantee before the Statute Quia Emptores of arable 
land by virtue of his individual grant, and as an incident 
thereto ; and it is as much a peculiar right of the grantee 
as one derived by express grant or by prescription, though 
it differs in its extent, being limited to such cattle 
as are kept for ploughing or manuring the arable land 
granted, and as are of a description fit for that purpose ; 
whereas the right by grant or prescription has nVsuch 
limits, and depends on the will of the grantor" (t). In 
the case of copyholders, the right depends on the extent of 

« 

{q) Stephen's Comm. 11th ed. 168. 

Tol. i. 626. (0 Dunravm {Earl of) v. Llew^ 

(r) Tyrringham't Case, 4 Bep. eUyn, 15 Q. B. 791, 810. See also 

36 b. Warrick v. QiMerCs College^ Oxford^ 

(*) Carr v. Lambert, L. R. 1 Ex. L. R. 6 Ch. 716. 



252 



THE LAW OP COPYHOLDS. 



Common of 



the original grant as shown by the usage imder the 
onstom. 

Common of vicinage is another right which cannot be 
claimed by copyholders under a custom {u). This right 
exists where the tenants of adjoining manors have from 
time immemorial intercommoned on a waste or common- 
able ground lying between them (x). It was at one time 
thought to be not so much a right of common as an excuse 
for unavoidable trespass (^), but it has since been held to 
be a reciprocal right of common which can be claimed 
under the Prescription Act, and may be viewed as f oimded 
on mutual covenants not to distrain the cattle, implied 
from long acquiescence on both sides (s). It is destroyed 
by any complete inclosure or division between the neigh- 
bouring wastes or commonable grounds (a). 

Every custom under which any of these rights are claimed 
must be certain, reasonable, and limited. If uncertain, it 
cannot be shown to have existed from time immemorial, 
for every custom presupposes an ancient grant, which if 
uncertain would have been originally void. In a leading 
case (6) on this part of the subject, a custom was pleaded 
for all the tenants having gardens to dig turf on the waste 
for making grassplots as often and in such quantity as 
occasion required : and it was held the custom was void, 
as being uncertain and destructive of the waste. Lord 
MaS'.Z^^^i' Ellenborough in delivering judgment, said: "A custom, 

however ancient, must not be indefinite and uncertain ; 
and here it is not defined to what sort of improvement the 



Requisites of 

costomaiy 

common. 



(u) Jmu T. JSo&m, 10 Q. B. 620. 

\x) Co. Litt. 122 a. 

(y) WelU V. Tearey, 1 Bing. N. C. 
666 ; math v. EllwU, 4 Bing. K. C. 
388. 

(z) Friehard v. Powell, 10 Q. B. 
689 ; and see London {CommUsioners 
of Sewers of) y. QUusey L. R. 19 £q. 



134 ; Minet v. Morgan, L. R. 11 Eq. 
284; and Cape t. Scott, L. R. 9 
Q. B. 269. 

{a) Qullett V. Lopet, 13 East, 348. 

\b) Wilton V. WUlea, 7 East, 121 ; 
and see Salitbury (Marquie of) y. 
Gladstone, 9 H. L. Cas. 692, 707. 



RIGHTS OF CX)MMOK. 263 

oustom extends ; it is not stated to be in the way of agri- 
onltnre or horticnlture ; it may mean all sorts of fanciful 
improvements, and every part of the garden may be con- 
verted into grass plots, and even mounds of earth raised and 
covered with turf from the common. There is nothing to 
restrain the tenants from taking the whole of the turbary 
of the common and destroying the pasture altogether. A 
oustom of this description ought *to have some limit, but 
here there is no limitation to the custom as laid, but caprice 
and fancy. Then this privilege is claimed to be exercised 
" when occasion requires," and it is not even confined to 
the occasions of the garden. It resolves itself, therefore, 
into the mere will and pleasure of the tenant, which is 
inconsistent with the rights of aU the other commoners as 
well as of the lord. The third special plea also is too 
indefinite : it goes to establish a right to take as much of 
the turf off the common as any tenant pleases, for making 
banks and mounds on his estate ; it is not even confined 
to purposes of agriculture. AU the customs laid, there- 
fore, are bad, as being too indefinite and uncertain." 
In a case {c) where the plaintiffs, who sued on behalf of 
themselves and all other owners and occupiers of lands 
and tenements in a certain parish, claimed by prescription 
a right of common of pasture as appurtenant to their 
several lands and tenements within the parish over certain 
lammas lands lying therein partly freehold and partly 
copyhold of two manors for their commonable cattle 
according to the number limited by the homage of one of 
the manors in proportion to the annual value of the tene- 
ments, and during such portion of the season between the 
removal of the crops in each year and the time of pre- 
paring the land for sowing in the next succeeding year 
as the homage should fix, a demurrer to the claim on the 
ground that the prescriptive right thereby alleged was 
uncertain and unreasonable was upheld, the Court saying : 

{c) Bayl\9 T. Ty99in*Amkuritf 6 Ch. Div. 600. 



264 THE LAW OF COPYHOLDS. 

^'The law requires precision of some kind, although I 
agree it does not require precision to a day, and that 
season would do very well if the season had been between 
the sowing and the removal of the crops, because when a 
man had sown his land you could not come upon it. . . . 
I cannot agree that you can have a legal custom to be 
determined by the people, whose interest it is to make it 
different from what it is. I think, therefore, if you want 
to allege a local custom you must have a proper begin- 
ning and proper ending. In the next place, I do not think 
this can be a legal custom, that is, that it could have 
occurred time out of mind, or from time immemorial. 
The statement says that the right is in proportion to the 
annual value of such tenements according to a scale fixed 
by the homage. Now annual value is, of course, con- 
stantly varying, and one can hardly imagine that before 
legal memory they could have decided the annual value 
Yoxyiag from year to year, not according to the actual value 
but according to what the homage of a particular manor in 
part of the parish should determine. It does appear to me, 
I must say, inconsistent with the notion of ancient legal 
right, and I think it will be found that no such allegation 
from time immemorial could possibly be maintained as a 
reasonable thing to attribute to the time before King 
Bichard I., which is the meaning of time immemorial" {d). 
Further, in order to make a right of common appur- 
tenant to particular lands, it must be shown that there is 
some connection between the exercise of the right and the 
possession of the lands. Thus, in the case which has just 
been mentioned (e). Sir George Jessel, M.E., said : " This 
right of pasturage, as far as I can understand it, over 
lammas lands is always a right annexed to the ownership 
of some other lands. I use the term ' annexed ' advisedly. 
That right, of course, must be determined on the ordinary 

(d) Ihid.ybOdfper&iiGw.Jeeael, (e) BaylU y. Tyten'Afnhurtt, 6 

M. R. Ch. Div. 600. 



RIGHTS OF COMMON. 255 

prinoipleB of law, and those prinoipleSy as I understand 
them, say that where the right is annexed to other lands 
the right must have some connection with those other 
lands to make it what is called appurtenant, that is, there 
must be some relation of the right and the enjoyment of 
those other lands. You may have various connections. . . . 
But in all ways there must be some connection between 
the occupation of the lands in respect of which the right is 
enjoyed and the right itself, which connection from its 
nature must to a certain extent limit the right enjoyed. 
You might say for every beast used on the land, not 
exceeding one beast per acre, there might be a right of 
common. But used in some way on the land I think the 
beasts must be to make the right appurtenant, otherwise I 
do not see what the meaning of the word * appurtenant ' 
is. It is a right of appurtenant to the land " (/). 

Copyholders can only take the produce of the waste for Prodaoe not 
their necessary uses on their tenements, and not for sale Zt^^"" 
or profit (g). But in some cases of grant or prescription, 
which do not extend to copyholders, the commoner, who is 
entitled to a certain amount of pasture, or other profit, 
may sell or let his right (A). 

The copyholder's rights of common may be restricted in Limitatioiifl of 
many various ways, besides the limitation of the quantity ^^^' 
measured by the necessities of the tenement, or by some 
other customary measure of quantity. In some manors 
the freeholders have their pasture upon one part of the 
waste, and the copyholders on another part (*). The 
copyholder's right of pasture may be stinted to a particular 
number of cattle, or to certain kinds of cattle, as to com- 
monable cattle in the strict sense of the word, including 

(/) See Fitz. Alir. Preeoriptiioii, t. MiUi, 17 Ch. Biv. 635. 
61, and JECoakins ▼. bobbins, Follezf. (A) J)aniel y. Hcaulip, 2 Lev. 67 ; 

13, 21. Bunn t. Channm, 6 Tannt. 244 ; 

iSl) Valentine ▼. Penny y Noy, 145 ; Wooliych, Gommons, 92, 93, 192. 
Hayward v. Canningtort^ 2 Keb. (i) See FoieUm y. Orachroode, 4 

290, 31 1 ; and see Dtf la Warr (Earl) Bep. 31 b. 



266 THB LAW OF COPYHOLDS. 

only the cows, oxen, horses, and sheep, which are used in 
ploughing and manuring the land (j). Where the waste 
is part of an ancient forest, it is unusual for the privilege 
to extend to sheep, and hogs, goats, and geese are ex- 
cluded (k). The right may also be limited as to the time 
of enjoyment, as that the waste or commonable ground 
shall only be depastured at certain times of the year (/), 
and there is frequently a custom for the homage to make 
bye-laws for the management and regulation of the 
common from time to time (w), and so with the other 
rights of common above described, the custom of the 
manor determining in each case, whether the wood, peat, 
&c., is to be taken at all times, or at certain seasons, and 
whether over the whole of the waste where the products 
are found, or in places to be assigned by the lord, and 
whether at the commoner's discretion, or after " view and 
delivery by the bailiff," or the like. It will also be 
remembered, that the rights of taking estovers, minerals, 
and the like, do not extend over the whole waste as seems 
to have been at some time supposed, but are confined to 
those places where the produce is actually found, and in 
this respect are unlike common of pasture, *' which extends 
to every spot on which there is food for cattle, and also to 
every spot across which the cattle may wander in search 
of food "(/i). 

In most places the customary rights of common are 
confined to ancient copyhold tenements, the tenants of 
new copyholds created under a custom being excluded 
from pasture, and the owners of new houses being ex- 
cluded from taking turf for fuel, and the like ; but a new 
house built upon an ancient site is regarded as having the 

(J) Morley t. Clifford^ 20 Oh. Div. Oro. Jao. 680 ; Musgrave v. Cave, 

753. WiUes, 319. 

(k) ManwoodyLawsof theForest, (m) See Fox t. Amhurtt, L. R. 

3rd ed., 222 ; Williams, Commons, 20 Eq. 403. 

232. (») Per Patteson, J., in Pearatm 

{I) See Standred y. Shorditch, t. Und^rhill, 16 Q. B. 120, 125. 



RIGHTS OF CX>MMON. 257 

privileges of the anoient tenement (o). It has been said, 
however, that a custom for the tenants of houses, whether 
new or old, to have estovers might be upheld as reason- 
able (p). 

In the next place, mention may be made of the rights of Bights of 
oommon which the free tenants of a manor may have over tenai^ oyer 
the waste. There is no doubt that freeholders may have wm*®. 
many rights over the waste, besides their common of pas- 
ture appendant, similar to those which have been described 
as belonging by custom to copyholders ; but there is a dis- 
tinction between the nature of their claims. Copyholders, 
as has been seen, can aUege a custom in the manor. *^ The 
freeholder, however, stands upon the presumed grant of his 
freehold, and he prescribes for himself and all those in 
whose interest he stands to have the use of certain things 
which for a time beyond legal memory have been attached 
to the land which he has as freeholder " (q). 

Of the rights of common which freehold tenants of Common 
a manor may possess, the most important is that kind of *^^*^ 
common of pasture which is known as common appendant. 
It is so called because on every original f eofEment of arable 
land to be held of the manor in socage the law without 
express words presumed a grant of sufficient pasture on the 
waste appendant or belonging to the land for the common- 
able beasts levant and couchant thereon. *^ The reasons 
for this presumption were that in the scarcity of meadows 
and enclosed pastures which prevailed in early times, the 
tenant might otherwise have been without pasture for his 
cattle when the crops were in the ground, and generally 
for the advancement of tillage which was much favoured 
in law; the socage tenants were, moreover, frequently 
bound by their tenure to assist in cultivating the lord's 

(o) Costard v. TTin^ld, 2 Leon. (p) Warrick v. QueerCs College, 

44; ZuttreVs Cas0, 4 Bep. 86 a; Oxford, L. B. 6 Ch, 716, 730. 
Arundel {Cottntess of) y. Steere, Gro. {q) Per Lord HaJ^erley, L. 0., 

Jac. 26. in Warrick v. Qu^^s College, Ox' 

ford, L. B. 6 Ch. 716, 724. 

S. S 



268 THE LAW OF COPYHOLDS. 

demesnes and to keep cattle for that purpose, whioh oonld 
not be oonyenienUy pastured on their own lands through- 
out the year " (r). Although the right is in fcMjt prescrip- 
tive in its nature, the prescription should not be specially 
pleaded, as it is implied in the legal definition of the term 
^' appendant " («). Further, as has abeady been indicated, 
this right of common is only appendant to land which can 
be taken to have been anciently arable, and not to any land 
which can be shown to have been approved within time 
of memory (t) ; and, as the right is held to be an incident 
of the original tenure, it must be taken to have been already 
in existence when the creation of new tenures was for- 
bidden (u). There is accordingly a double limitation of time 
implied in the definition of common appendant : " it must 
not only be an immemorial right which would by the pro- 
visions of the Prescription Act be proved by a thirty years* 
user, and be rendered indefeasible by a user for sixty years, 
but it must also have existed before the date of Quia JEmp* 
tores. A proof, therefore, that the land in question was first 
brought into cultivation or was in the full ownership of 
the lord at any period subsequent to that statute, will neces- 
sarily upset a user for sixty years or more. At first sight 
this appears to contradict the language of the Prescription 
Act, but it must be remembered that upon such proof it 
will be evident not only that the right was created within 
time of memory, which would be unimportant, but that it 
has never been common appendant during the period of 
user" (x). Freehold tenants may also have by grant or 
prescription common of pasture appurtenant, whether their 
lands have been held by the lord within time of legal 
memory or not, common of estovers, common of turbary, 
as well as rights of digging sand, gravel, day, and occa- 

(r) Elton, Commoxis, 48 ; and see (t) Ante, p. 251 ; Yearb. Trin. 

TyrringJum'8 Cate, 4 Eep. 36 b, 26 Hen. VIII. fo. 4, pi. 16. 

37 a ; Bennett t. Reeve, Willes, 227, (m) See TyrringhanCt Case, 4 Bep. 

231; MusffraveY. Cave, ibid. 319. 36 b. 

(«) Go. Litt. 121 b, 122 a; Orymee (x) Elton, Commons, 50. 
y. Feacock, 1 Bnls. 17. 



RIGHTS OF COMMON. 



259 



sionally ooal, in the lord's waste, and oommon of piscary in 
the lord's streams or ponds (t/). In general these rights Liimtof 
are limited, in the absence of express proyision, either by ^mmon 
the requirements of the tenant in each case, or by some ^^^^ *^ 
quantity fixed by usage (s). Common of pasture appur- tenimts. 
tenant is not confined to beasts which plough and manure 
the land, but may be extended to hogs, goats and geese (a) ; 
and it may be created at the present day {b). 

In addition to the rights of common already mentioned. Bights of 
there may be other rights of a similar nature existing inde- ^obs. 
pendently of the enjoyment of any tenement held of the 
manor (c). Such rights are termed rights of common in 
gross, and may be created either by grant or by long 
usage and acquiescence implying a grant. They are but 
rarely clainied by private persons, but corporations have in 
many instances claimed that they and their predecessors 
have from time immemorial exercised such rights (d). 
Claims of this kind are not within the provisions of the 
Prescription Act (e), and axe therefore liable to be defeated 
by proof that the right claimed was first taken or enjoyed 
at any time within legal memory. An exclusive right of 
pasturage has been established as belonging to a corpora- 
tion through the immemorial exercise of such right by the 
predecessors of the corporation, not as a right of common 
annexed to lands within the borough, but as a right be- 
longing in gross to the corporation and differing from a 
right of common (/). If a single burgess wishes to claim 
the benefit of a grant of a right of common to a corpora- 

{y) Elton, Commons, 62, 83, 98, (b) Cowlam t. Slack, 16 East, 

106, 109. 108. 

(2) See Bxaoton, iy. fos. 222, 228, {e) Elton, Commons, 76, 86, 98, 

231 ; Fleta, ir. ohaps. 19, 26 ; Mef/- 106. 

ward y. Ounin^ton, 1 Sid. 364 ; (<Q Williams, Commons, 9. 

Benton y. Chetter, 8 T. R. 396; \e) Shuttletcarth y. Ze Fleming, 19 

Clayton y. Corhyy 6 Q. B. 416. C. B. N. S. 687. 

(a) Co. Xitt. 122 a ; Smith y. (/) Johnson y. Bamet, L. B. 8 

Feverellt 2 Mod. 6; Bunravm {Earti C. P. 627. 
y. LUweUyn, 16 Q. B. 791, 811. 

s2 



26{) THE LAW OF COPYHOLDS. 

tion, he must prove that the grant was for the Benefit of the 
individual burgesses (g) ; and if a right of common belongs 
to all freemen inhabiting within an ancient borough, it 
cannot properlj be claimed as belonging to all the freemen 
inhabiting within the borough if its limits have been ex- 
tended in modem times by an Act of Parliament (A). But 
although a corporation may prescribe by reason of the im- 
memorial enjoyment of themselves and their predecessors, 
the inhabitants of a place who are not a corporation cannot 
prescribe for any profit d prendre or right of common as 
having been enjoyed by them as inhabitants from time im- 
memorial. This was decided as early as the reign of 
Edward IV. by the Ca^e of Coventry (e), in which it was 
held that inhabitants as such cannot claim common. This 
case was followed and confirmed by Oateward^a Case (A;), 
which is said to be ^^ a landmark of the law on this sub- 
ject" (/), and by subsequent decisions. Thus prescrip- 
tions for every inhabitant (w), or every householder (n), or 
for poor and indigent householders (o), for the tenants and 
inhabitants (jt?), or for aU the dwellers in a parish or 
manor (^), to have rights of common have been adjudged 
void, because such fluctuating bodies of persons cannot hold 
to themselves and their successors, and also because they 
would be unable to release the right when they had 
obtained it. In Davies v. Williams (r) it was held that a 
claim to a right of common by prescription in occupiers 
could not be sustained even after verdict found, for a 
grant to successive occupiers would pass nothing, except 
to the first. In the case of Austin v. Amhurat {s) it 

is) Parry r. Thomas, 6 Ex. 37. bridge Eighw. Bd., 19 W. B. 884. 

(A) BMdiWorth y. TorkingUmy 1 (fi) Ordewagy. Orme, 1 Bols. 183. 

Q. B. 782. (o) Selby v. Robimont 2 T. R. 768. 

(0 Teorb. Trin. 16 Edw. IV. (p) GrinuUad v. Marhwey 4 T. R. 

fo8. 29, 32 h, in. 

{h) 6 Rep. 69 b. (^) Allgood r. Qibwny 26 W. B. 

(/) PtfrByles, J., in Att.'Qm, t. 60. 
Matthias, 4 K. & J. 579, 691. (r) 16 Q. B. 646. 

(m) Mellor v. Spateman, I Wma. («) 7 Ch. Div. 689. 

Saund. 339, 348; Fitts v. Kitigi- 



BIGHTS OF COMMON. 261 

appeared that the occupiers of lands under the copyholders 
of a manor claimed, and by a bye-law of the manorial court 
were declared to be entitled to, certain rights of common 
over the waste lands of the manor. Part of the lands had 
been sold to a railway company, and the occupiers claimed 
to share in the purchase-money. It was held that the 
claim could not be sustained, as it could not be made either 
by custom, grant, or prescription. 

A Grown grant to the inhabitants of a parish to take 
certain profits d prendre out of a royal manor is valid, for 
the effect of such a grant would be to incorporate the in- 
habitants for the purpose of enabling them to exercise the 
rights (t). But an action to establish such a right is main- 
tainable only by the inhabitants as a corporation so estab- 
lished, and not by an individual inhabitant suing merely 
on his own behaLE (w). Such a Crown grant will not be 
presumed from proof of user by inhabitants if the presump- 
tion is inconsistent with what is known as to the past and 
existing state of the facts, and if there is no trace of such 
a corporation having actually existed at any time, and 
such a presumption would not be allowed in a case where 
at the time when such a corporation was supposed to be in 
existence and entitled to the rights, the tenants of the 
manor were themselves exercising an inconsiBtent right (27). 

The commoner has no estate in the land, but only a Bights of 
right to enter for the purpose of using his common, and o^'™"^^*"^* 
he cannot take any other product of the soil (y). " A com- 
moner entitled to common of pasture cannot take wood, 
hay, or other profit there growing, or cut down bushes, 
fern, or the like (without a special custom), although they 
prejudice his common ; and a commoner, though he have 
a right by custom to cut fern, may not scatter the ashes 

{i) WiUingale t. Maitland, L. B. {x) Rivers {Lord) v. Adams, 3 Ex. 

3 Eq. 103 ; Chilton v. Corporation of Div. 361. 

London, 7 Ch. Div. 735. {y) Cooper y. Marshall, 1 Burr. 

(u) Chilton T. Corporation qf Lon- 259, 265. 
don, 7 Gh. Bir. 735. 



262 



THE LAW OF OOFTUOLDS. 



Whether 
oommoner 
can assign 
his right. 



Incidental 
rights. 



whioh a stranger has made by cutting or burning it " (s). 
And it is a general rule that all interferences with the 
soil, bejond the actual taking of the produce subject to 
the right of common are unlawful in the absence of a 
special custom or prescription {a). 

Bights of common are in general exerciseable only by 
the commoner himself; but in certain cases, where the 
right has been created by grant and the quantity to be 
taken is certain, the commoner may sever his appurtenant 
right and grant it to a stranger (J). Thus, where a free- 
holder has common of pasture appurtenant for a fixed 
number of cattle, he may allow a stranger to use his right 
with the same number of cattle, because no alteration is 
thereby made in quantity of profit to be taken from the 
waste (c). And so when a commoner by grant has a right 
to take a certain quantity of wood, turf, or the like, the 
right may in general be severed from the tenement to 
which it appertains (d). But this rule does not apply to 
copyholders, their custom always being to have common 
on the wastes for their own use in respect of their copy- 
hold tenements (e), A copyholder, therefore, is not allowed 
to take pasture with the cattle of other persons, even 
though he should at the time have none of his own, but 
he may turn on cattle hired for use upon his copyhold 
land (/) ; and so a copyholder cannot aliene his right of 
estovers, turbary, or piscary to a stranger. 

The right of common includes all the facilities of ingress, 
egress, &c., which are necessary to its enjoyment, and the 
commoner has therefore a right " to abate every obstruc- 



(z) Woadion y. Nawtw, 2 Stra. 
777 ; and see Com. Dig. tit. Com- 
mon (H.), and cases collected there. 

(a) Sir Simon de JECareamri's Case, 
Tearb. Trin. 12 Hen. VIII. fo. 2, 
pi. 2. 

{b) Brury ▼. Kent, Oro. Jac. 14 ; 
Daniel v. Sanslip, 2 Lev. 67 ; Laih- 
bury Y, Arnold, 1 Bing. 217. 



(e) Sunn y. Channm, 6 Taont. 
244 ; and see Jones y. Rieharde, 6 
A. & E. 630. 

{d) See Woolrjoh, Oonmions, 
94 n. ; and Cooke, InoloBores, 37, 40. 

(e) Ante, p. 265. 

(/) See Ktz. Nat. Brev. 180 B.; 
and RumseyT. Rawson, 2 Keb. 410, 
493, 604. 



BI0HT8 OF COMMON. 263 

tion to his cattle's grazdng the grass which grows upon the 
spot of ground," as bj pulling down gates, hedges, and 
fences (g). But abatement is not a form of remedy which 
is favoured by the law; ^'for the abator is judge in his own 
cause " (h) ; and it appears to be only in oases where the 
acts of the lord or a stranger are directly contrary to and 
inconsistent with the nature of the right of common that 
the law allows the commoner to abate the obstruction. 
Where the lord places a hedge or fence upon the conmion 
BO as to prevent the commoner's cattle from going into or 
over the common, the commoner may abate such hedge or 
fence, and in such a case he is not restricted to pulling 
down so much of it as it may be necessary to remove for 
the purpose of enabling his cattle to enter and feed upon 
the residue of the common, but he is entitled to consider 
the whole of the fence so erected upon the common as a 
nuisance, and to remove it accordingly (t). But where 
the hedge is placed upon other land, and merely surrounds 
the common, it seems that he will only be entitled to 
remove so much as is necessary to make a way for his 
cattle to enter the common (A). The commoner has no ^j ^^^ ^4^ 
right to cut down any trees which may have been planted ^ 

on the common by the owner of the soil (/), nor to inter- 
fere with the rabbits upon the common (m). In such 
cases the commoner has to bring his action, the 
burden of proof being upon him to show that the acts 
of the lord have caused him injury (n). A commoner 
may, however, pull down a house or a building, which has 
been wrongfully erected upon the common and which 
prevents his exercising his right as fuUy as he might 

{ff) Cooper T. MarshaUf 1 Bnxr. 65 ; and notes to Melhr t. Spate* 

259| 266. man, 1 Wms. Sannd. 339, 353 a. 

{h) Fer Eyre, 0. J., in JBrJy v. (I) Kirhy v. Sadgrove, 1 B. & P. 

Sadgrove, 1 B. & P. 13. 13. 

(t) ArUtt y. mi%9, 7 B. & C. 346, (m) Coney* $ Cote, Qodb. 122 ; 

862. Cooper v. MarehctU, 1 Burr. 259. 

{k) Yearb. Trin. 15 Hen. VII. (n) ArUU t. EUU, 7 B. & 0. 

fo. 10, pi. IS ; Mown t. Caear, 2Kod. 346, 863. 



264 THE LAW OF COPYHOLDS. 

otherwise do, eyen although saoh hoose or bnilding 10 
actually oocupied, provided he gives due notice to the 
occupier of the house or building, and requests him to 
remove it, and provided also that he does no unnecessary 
damage (0). 

The commoner cannot maintain an action of trespass for 
damage done to the soil (/>), but will have an action for 
damages against anyone who disturbs or impedes the 
exercise of his right. If he suffers by the way in which 
the owner uses the soil, he cannot by his own act remedy 
the injury, as by fiUing up pits, or the like, but must 
bring an action (q). An action will lie at the instance of 
the commoner against the lord for any damage or injury 
to his right of common whether such damage arises from 
the lord's interference with the soil, or from his sur- 
charging the common, and so obstructing the commoner 
in the full enjoyment of his right. But when the action 
is brought against the lord, the particular damage must 
be shown by the commoner, and he must also prove that 
there is not suflSciency of common left(r). "If the 
defendant be lord of the manor, or put his cattle upon the 
common with the lord's licence, the commoner cannot 
maintain an action imless he has sustained a specific 
injury. It is not enough to show that the cattle con- 
sumed the grass, as in the case of a stranger, but it must 
appear that there was not a sufficiency of common left, in 
order to support the action " («). In the case of an action 
brought against another commoner or a stranger, it is 
sufficient for the commoner to prove that owing to the act 
of the other commoner or stranger he could not have his 

(0) J)aviet T. WiUxana, 16 Q. B. Wins. Saond. 339. 

646. (r) Smith r. FevereU, 2 Mod. 6 ; 

(p) Sir Simon dsHareeourt't Cote, Atkinaon y. TeatdaU, 3 Wife. 278, 

Yearb. Trin. 12 Hon. VIII. fo. 2, 290 ; JtoberUon v. JECartopp, 43 Ch. 

pi. 2 ; Croffote v. Iforrit, 2 Brownl. Div. 484, 602. 

146. («] Melior t. Spateman^ 1 Wms. 

(q) Sadgrove v. Kirhy, 6 T. R. Saimd. 339, 346 b, n. 
483, 486; MeUar v. Spatman, 1 



RIGHTS OF COMMON. 265 

common in so benefioial a manner as he had before, for /pj.i.rA-'^^^ 
KCLj act which prevents the enjoyment of the common in 
as ample a manner as before, and lessens the profit of the 
commoner will be a ground for an action against another 
commoner or a stranger (^). In WelU v. Watling(fi) the 
plaintiff's case was that the defendant, who was not a 
commoner, had wrongfully turned a number of sheep 
upon the common, " whereby the plaintiff could not enjoy 
the benefit of his common in so ample a manner as he 
could before ; " and on the part of the defendant it was 
contended that the plaintiff could not maintain the action 
because he had suffered no damage, as it did not appear 
that he had turned any sheep on the common that year. 
But De Grey, C. J., said : " The defendant has mistaken 
the groimd of his objection. It is material for the plaintiff 
and he must show that he could not exercise his right 
tarn amplo modo^ &c. This has been both laid in the 
declaration and also proved by consequence; for every 
unlawful surcharge is pro tanto a diminution of the right 
and profit of every other commoner. It is certainly neces- 
sary that the plaintiff receive some actual injury in order 
to maintain this action, but it is laid down in Marys^s 
Case {x)y that the plaintiff must show the injury to be such 
quod non potuit habere, &c. (that he could not have his 
common in so beneficial a manner as before). The ques- 
tion is merely upon the nature of the defendant's acts, 
and the greatness or smallness of it, not on the plaintiff's 
exercise of his right. It is sufficient if the right be injured, 
whether it be exercised or not." In the same case, Qould, J., 
said : " The injury consists in preventing the enjoy- 
ment of the common tam amplo modo. It appears that an 
action lies for the damage let it be ever so minute." The 
same principle was followed in Mobson v. Todd (y), where 
it was held that one commoner who had surcharged might 

(0 Maryt's Case, 9 Hep. 111b. (x) 9 Rep. 111b. 

(«) 2 W. Bl. 1233. (y) 4 T. B. 71. 



366 



THE LAW OF 00PTH0LD8. 



Difitrefis. 



Repreflenta* 
tiye fiiiita. 



nevertheless maintaiii an action against another for sur- 
charging the common, because his right had been injured 
by the act of the defendant. The smallest injury will be 
sufficient : in one case the removal of the manure, which 
had been dropped on the common by the cattle, was held 
sufficient to ground an action (s), and in another case it 
was held that one farthing's damage was sufficient to 
sustain a verdict (a). The cases, said Stirling, J., '' appear 
to me to show that any act of a stranger, whereby the 
commoner is prevented from having the use and enjoy- 
ment of the common of pasture in as ample and beneficial 
a manner as he otherwise would, is a legal injury for 
which an action will lie, even although no actual damage 
be proved" (6). 

The commoner may distrain the cattle of a stranger 
doing damage, but cannot distrain when cattle are put in 
under a colour of right, as where the owner or another 
commoner puts in more than the right number of 
cattle (c) ; and the principle that there can be no distress 
where the cattle are on the commonable land under colour 
of right applies to common pur cause de vicinage as well as 
to common appurtenant {d). 

In cases of dispute between the owner of the waste and 
a number of persons having or claiming common there, 
courts of equity were accustomed to permit general suits 
to be brought either by one person claiming or defend- 
ing a right against a number of others, or by a numb^ 
of persons against the one who impedes their general 
right, in order to prevent a multiplicity of suits and 
actions {e)^ and because " all persons having a right in 



(z) Findar ▼. JFadsworth, 2 East, 
164. 

(a) lichen v. JCniffht^ MoGell. 
373. 

{b) Sobertton v. Sartopp, 43 Oh. 
Diy. 484, 500. 



{e) Hall T. ffardififf, I W. Bl. 
673. 

{d) Cape ▼. Seott, L. B. 9 Q. B. 
269. 

(e) York {Mayor of) v. FHkington, 
1 Atk. 282 ; Tenham {Lord) ▼. SoT' 
beri, 2 Atk. 483. 



RIGHTS OF COMMON. 267 

common which is inyaded by a common enemy, although 
they may have different rights inter «e, are entitled to join 
in attacking the common enemy in defence of their common 
light "(/). 

On these principles the Court of Chancery has confirmed 
the rights of owners making inclosures, leaving a sufficiency 
of common (g), and has held that one freehold tenant of a 
manor claiming by prescription under a presimied ancient 
grant can sue on behalf of himself and all the other free- 
hold tenants to protect their rights over the waste against 
the lord making an inclosure {h). So one person who was 
a copyholder and also a freehold tenant of a manor has 
been allowed to sue on behalf of himseU and all the other 
freehold and copyhold tenants for the purpose of establish- 
ing a right of common over the waste of the manor (t) : 
but where a tenant had filed a bill on behalf of himself 
and all the other copyhold and freehold tenants, he was not 
allowed to amend his bill by adding the name of an 
enfranchised copyholder as a co-plaintiff, it having been 
known at the time of filing the bill that there were many 
enfranchised copyholders of the manor who might have 
similar rights over the waste (k) . It has also been held that 
an action for the purpose of establishing aright of common 
on the wastes of a forest may be maintained by an owner 
and occupier of land within the forest on behalf of them- 
selves and all the other owners and occupiers (/). 

The copyholder's right of common may be extinguished Extmguifih- 
in several ways. It is a rule in the case of freeholds that a ^mnon. 
right of common is destroyed when the commoner pur- 
chases an estate in the waste equal in duration, quality. 



(/) Unr Lord Hatherley, L. C, Thompson, L. B. 6 Oh. 732. 

xa Warriok v. Queen*a Collegey Ox" (t) Smiih ▼. Brwonlow {fiart)^ 

ford, L. B. 6 Gh. 716, 726. L. B. 9 Eq. 241. 

(^) Arthington v. Fawket, 2 Vein. (k) Peek v. Spencer, L. B. 6 Ch. 

356. 548. 

{h) Warriek v. QiueenU College, (/) London (Commre* of Setcera, 

Oxford, L. B. 6 Gh. 716 ; Setts ▼. ^e, of) t. Olasse, L. B. 7 Oh. 456. 



268 THE LAW OF COPYHOLDS. 

and all other droumstances, to the estate whioh he had in 
the right of common : and in the case of a common appur- 
tenant this is said to result from such a purchase of any 
portion of the waste : and any unity of possessioh .will 
suspend the right of common {m). But in the case of a 
copyhold, the right of common will he capable of reviving, 
so long as the tenement remains demiseable by copy of 
court-roll ; and a seizure into the hands of the lord will not 
extinguish the right of common, for ^* that right is annexed 
to all customary tenements demised or demiseable by copy 
of court-roll, and while the estate remains in the lord it 
continues demiseable. If the lord grants the fee to the 
copyholder, it never can again become a copj^iold estate, 
for it ceases to be demiseable by copy of court-roll "(n). The 
right of common belonging to a copyholder by custom will 
not be destroyed, it seems, by his purchase of the manor, 
or at least will again attach to the land as soon as it 
becomes copyhold again after the merger of the titles ((?). 

The right is lost by an enfranchisement of the copy- 
hold by deed operating at common law, unless there 
are special words to continue it. Thus, where a copy- 
holder for life had common by custom and the lord granted 
to him the freehold inheritance with the appurtenances, it 
was held that the right was lost, because it had been 
attached to the customary estate and not to the land, 
and that the general words "with the appurtenances" 
were not suflBcient to preserve the right of common (p). 
So where a copyholder had common of estovers by custom, 
and purchased the freehold with all commons appertaining 
thereto, the right was said to be lost, " but if there had 
been special words to make a new grant of the like common 
as he had before, that would have been good " (q) ; but 

(m) T^rrinffham*s Com, 4 Bep. 36a ; (p) Marsham v. Suntety Gro. Jao. 

Bradshaw v. EyrCj Gro. Eliz. 570. 253. See SaeheveriU y. Tbrter, Gro. 

(h) Badger v. Ford, 3 B. & Aid. Gar. 482, as to a right of oommon 
153. passmg on a feoffment of lands 

(o) See Watk. Gopyh. i. 369, n. '*cum pertinentiU:* 

(q) Fort V. JFard, Moo. 667. 



RIGHTS OF COMMON. 269 

in Lee v. Edwards (r) the Court said that if a copyholder 
has common in the lord's waste, and the lord enfeoffs him 
of his copyhold wiili all commons, the common is not 
gonQ. * In another case where the lord had granted the 
freehold, together with all commons belonging or apper- 
taining thereto and after the enfranchisement disputed the 
tenant's title to common, it was decreed in equity that the 
tenant shoidd enjoy the same right as he had before, not- 
withstanding the legal defect in his grant, because the cir- 
cumstances showed the intention of the grantor that it 
should survive («). In all such cases the rule seems to be 
that the words '^ all commons used or occupied with the 
said messuage," or any similar expression, but not the 
words " commons appertaining or belonging thereto," wiU 
operate as a grant of a new right of common {t). But on 
an enfranchisement of the copyhold under the Copyhold 
Acts, all* rights of common are preserved {u). 

When however the copyholder has common on the land 
of a stranger, not by custom but by prescription in the 
name of the lord of the manor, the right is considered 
to appertain to the freehold inheritance, and not to the 
customary estate, and it will not be lost in any case by 
enfranchisement {x) ; and it seems also that if the copy- 
holder purchases part of the land over which the right of 
common was exercised, the right wiU not be extinguished 
if the lord would be thereby injured (y). 

Every right of common may be extinguished by a Release and 
release to the owner of the soil where it has been exer- ment.^' 
cised, and it seems that a release of part of the land from 
the right of common would operate as a release of the 

(r) 1 Brownl. 173. («) Fost, chap. xi. 

(») 8tyantY.Stak$r, 2yem. 250. (x) Crowder ▼. OldJIeld, 6 Mod. 

(0 Bradihaw y. Eyre, Gro. Eliz. 19, 20. 

670 ; Worledg y. Kmgtwel, %Hd, (y) See JUvell y. Joddrell, 2 T. B. 

794; Barlow y. Rhodes, 1 Gr. & 415, 422, ary.; and WooliychjGom- 

Meea. 439, 448. mons, 149. 



270 THE LAW OF COPYHOLDS. 

whole {z). But if the right, though desoribed as a right 
of common, is really an exclusive right of pasturage on 
the land during a certain part of* the year, a release of 
part of the land would not extinguish the right (a). A 
right of common may also be lost by abandonment (6). 
The communication of an intention to abandon the right, 
if acted upon by the other party, will determine the right, 
and though the commoner may not have the intention to 
abandon, it would seem that if he induces the other person 
to believe that the right is gone, as by doing some act 
inconsistent with his having the right, the commoner would 
be precluded from setting up his privilege again. * Mere 
disuse of the privilege will in most cases amount to no 
more than evidence of an intention to abandon, which 
may be rebutted by other circumstances, as that the com- 
moner had no occasion to use the privilege (c). And even 
after disuse and a temporary conversion of the tenement 
to purposes inconsistent with using a right of common, the 
commoner might disclaim an intention to give it up((/). 
Though a person entitled to a right of common be not in 
the actual enjoyment of it, yet by non-user only for a 
time he does not cease to have a vested estate or interest 
therein {e). 
Presumed After non-user for a very long period it is said that a 

release will be presumed, unless some reason be shown for 
the omission to exercise the right. In the case of Moore y. 
Rawson (/), which was concerned with an easement, it 
was said by littledale, J., that " if the party who has 
acquired a right by grant ceases for a long time to make 



(e) Oo. litt. 122 a ; Mors v. [h) Moore v. Eawson, 3 B. & G. 

TTebbef 1 Brownl. 180; S, C, 2 332 ; JReg, v. Chorley, 12 Q. B. 615. 

Brownl. 297; Rotherham v. Green^ (<?) Wdrdy. JFardf 7 Exch. 838. 

Cro. Eliz. 694 ; bat see Benton v. (rf) See Carr v. Lambert, L. R. 1 

Chester, 8 T. B. 396, 401. Ex. 168. 

(a) Johnson y. Barnes, L. B. 8 {e) Go. litt. 114 b. 

G. P. 627, 628. (/) 3 B. & G. 382. 



RIGHTS OF COMMON. 271 

use of the privilege so granted to him, it may then be pren 
snmed that he has released the right. It is said however 
that, as he can only acquire it by twenty years* enjoyment 
(in the case of an easement of light), it ought not to be lost 
without disuse for the same period : and that, as enjoyment 
for such a length of time is necessary to found the pre- 
sumption of a grant, there must be a similar non-user to 
raise a presimiption of a release : and this reasoning may 
perhaps apply to a right of oonmxon or way." But a 
much longer disuse maybe explained by the circumstances 
of the case, so as to raise no presumption of release or of 
aband6nment, and it must after all be always a question of 
evidence of intention {g) ; and as the express release of a 
right would destroy it at any moment, '^ so the cesser of 
use coupled with any act clearly indicative of an intention 
to abandon the right would have the same effect as an 
express release without any reference to time " (A). 

The intention to abandon a right of common may be Destraotion 
evinced by a destruction or alteration of the tenement to of tei^meat 
which the privilege was attached. Thus when pasture- 
land is converted into building ground and covered with 
houses and gardens on which cattle cannot be maintained, 
it is obvious that any customary privileges of husbandry 
will be extinct. But it has been held that a right of com- 
mon was not extinguished by a conversion of pasture into 
an orchard and garden, a building having also been erected 
on part of the land. ^^ It had land in a state in which it 
might have been laid down for pasture or been cultivated 
so as to produce plants and roots for the support of cattle ; 
this is not, therefore, the case of a dominant tenement so 
changed in character as that cattle might not be fed off its 
produce " ; and a claim of conmion of pasture under the 
Prescription Act for so many cattle as the land could sup- 
port was sustained (t ) . When a right o{. common is appur- 

{fj Ward V. Wardy 7 Exoh. 838. (i) Ca/rr t. Lambert^ L. R. 1 Ex. 

(A) Beg. T. CfhorUy, 12 Q. B. 168, 175. 
615, 619. 



272 



THE LAW OF COPYHOLDS. 



Seyeranoe of 
right of 
oommon. 



Exhaustion 
of product. 



Inolosure of 
waste. 



Rights of the 
lora. 



tenant to a house, as where a copyholder has hy custom a 
right of turbary or estovers, it will be lost by a destruc- 
tion of the house, provided that there was no intention to 
rebuild {k) ; and similar rights are lost by such alterations 
of the tenement as are inconsistent with the purposes for 
which the right of common was given [t). 

The right of common may also be destroyed by severance 
from the tenement to which it was annexed, as where the 
copyholder alienates the tenement and attempts to reserve 
the privileges which were given for its necessary uses and 
profitable enjoyment (m). It will also come to an end, of 
course, when the produce of the waste which was to be 
shared by the commoner has been destroyed or exhausted, 
as where the peat in a turbary has been used up for fuel, 
or where particular kinds of minerals or other produce can 
no longer be found by the commoners (n). 

The copyholder's rights of common are extinguished by 
an indosure of the waste, whether such indosure be made 
by agreement, encroachment, approvement by the owner 
of the soil, or under a local custom or Act of Parliament. 

As to the rights of the lord over the manorial wastes. 
The lord, being owner of the soil of the wastes of the 
manor, may as a general rule exercise all acts of owner- 
ship over them which do not injure the rights of the com- 
moners. The position of the lord was thus described by 
Bayley, J., in Arlett v. Ellis (o). " The lord by granting 
rights of common over his waste does not thereby exclude 
himself or his tenants from all use of the waste in which 
the right of common is to be exercised, but merely grants 
to others, in common with himself and his tenants, certain 
rights upon that waste. All that the lord has not granted 
remains in him. He may, therefore, apply the waste to 



{k) See Dunstan y. TreHder^ 6 
T. B. 2 ; Stott y. Stottf 16 East, 343. 

(/) ZuttreVa Case, 4 Bep. 86 a, 
87 a. 

(m) 1 Bo. Abr. 401. 



(») JSly {Dean and Ch, of) y. 
Warren, 2 Atk. 189; Feardon v. 
UnderhiU, 16 Q. B. 120. 

(o) 7 B. & C. 346, 362, 365. 



RIGHTS OF COMMON. 273 

finy purpo^eB not inconsistent with the rights whioh he has 
previonsly granted to the commoners. ... I have no 
difficulty in saying that in my judgment the lord has 
rights of his own reserved upon the waste. I do not say 
subservient to but concurrent with the rights of the com- 
moners." The extent of the owner's rights can only be 
determined by the usage. It has been held that where 
the question arises which of the two rights is to be subser- 
vient to the other, the right of the owner of the soil will in 
general be deemed superior to that of the commoner, but 
that if the custom shows the owner's right to be subser- 
vient to that of the commoner, the former cannot use the 
common beyond that extent (p). There seems to be 
hardly any limit to the possible variations of the com- 
moner's privileges, which in one manor may be nearly 
valueless, and elsewhere almost equivalent to a separate 
estate in the land. Subject to the invariable rules that 
the commoners will not be allowed to take the whole of 
the produce and that the owner of the soil will not be 
allowed to destroy the common, the usage will determine 
the nature of the tenant's rights, the greater or less extent 
of the privileges at the present time being evidence in each 
case of the nature of the original grant. 

Thus, where not restrained by the extent of the copy- 
holders' custom, the lord as owner of the waste has a 
right to plant trees upon the waste (^), to stock it with 
rabbits and game(r), and to sport over it(d), to make 
shafts and pits, to open quarries or dig pits for taking 
clay, sand, or gravel, or to search for and take other 
minerals, doing as little damage as possible, the onus of 
showing that such acts injure the commoners' rights being 

{p) BaUsonT. Oreen f 5 T.B,, ill; (r) Cooper T. Marshall^ 1 Boir. 

and see Folkard y. Hemmettf ibid, • 269. 

417, n. ; and HilUm y. Granville (<) Case of Monopolies, 11 Bep. 

(Bart), 5 Q. B. 701. 84 b, 87 a. 

{q) Kirby y. Sttdgrove, 1 B. & P. 13. 

E. T 



274 THE LAW OF COPYHOLDS. 

on the oommoners {t)j and the lord has in certain oases the 
right to erect buildings on the waste and even to inclose 
part of it, if he can show that he has left a sufficiency 
of pasture for the commoners (u). The lord has likewise a 
right to turn his own commonable oattle upon the waste* 
Thus Lord Coke says : " If a man daims by prescription 
any mamier of common in another man's land and that 
the owner of the land shall be excluded to haye pasture, 
estovers, or the like, this is a prescription or custom against 
the law to exclude the owner of the soil, for it is against 
the nature of the word common, and it was implied in the 
first grant that the owner of the soil should take his 
reasonable profit there, as it has been adjudged " (;r). This 
right is not strictly a right of common, as a man cannot 
have a right of common in his own land : but it may be 
described as a quasi right of common ; and in cases where 
wastes and common lands have been inclosed and divided 
under the provisions of Acts of Parliament containing 
directions that allotments should be made to the various 
persons interested in the wastes in satisfaction of their 
lands, rights of common, aud other rights therein, it has 
been held that the lord of the manor has a right to an 
allotment in respect of this right of turning on his common- 
able cattle (y). ^* When land is spoken of as allotted to 
the lord, it is meant that whereas the lord had previously 
the right of soil over the whole common, subject to rights 
of conmion in the tenants which msAe that right of little 
or no value, a certain portion of the land is, on a division 
being made among all the parties interested, kept by the 
lord free from common rights, the i^st of the land being 
apportioned among the commoners " (s). 

{t) Baieaon ▼. Oreeny 5 T. B. 411 ; Shirland, died there. 

Sail V. Byron, 4 Ch. Biv. 667. (y) Arundel y. Falmouth {Vuet.), 

(«) Patrick ▼. Stuiba, 9 M. ^W. 2 M. & S. 440 ; Lloyd v. Powis 

830; Jlohinson ▼. JDul^ Sinffh, 11 (^aWo/), 4 E.&B. 486 ; Musgravey. 

Ch. Div. 798. Inelomre Comrs., L. R. 9 Q. B. 162. 

{x) Co. Litt. 122 a ; JFhite v. {z) Per Lord Cranworth, L. C, 



RIGHTS OF COMMON. 275 

The oommoner cannot out down trees planted bj the 
lord upon the waste, although there be not a suflBioienoy of 
oommon left (a), and where the owner of the waste has 
stored it with rabbits the commoners have not the right to 
stop up the burrows (6) . By the Statute of Westminster the 
Second, 13 Edw. I. st. 1, c. 46, declaratory of the common 
law, the owner of the soil of the waste may enlarge his 
own house or curtilage, or build any wind-mill, sheep-cote, 
cow-house, or a dwelling-house for any servant employed 
about the waste, without reference to the suflBciency of 
common remaining. It has been held that under the pro- 
visions of the above Statute, the owner of the soil of a 
common may erect thereon a house necessary for the habi- 
tation of beast-keepers for the care of the cattle of himself 
and other persons having rights of common there, and that 
he may also erect a house necessary for the habitation of a 
woodward to protect the woods and underwoods on the 
common (c). The Statute, however, applies only to com- 
mon of pasture, and not to common of estovers or turbary ; 
the buildings, therefore, must not interfere with such 
rights (d). 

*^ If the owner has prejudice in the soil where the com- Bemediea of 
mon is, he wiU have remedy by action a« in his other '^^:^ 
lands " {e). If the cattle of a stranger axe there, he may 
drive them out or impound them, or maintain trespass, and 
so if he finds the cattle of a stranger, he may drive the 
cattle of a coromoner with them to a pound upon the waste 
in order to separate them, without alleging any custom (/). 

in Sicks V. Sailitt, 3 De G. M. & (rf) Duberleyy. Page, 2 T. R. 891 ; 

G. 782, 796. Shakespear y. Feppin, 6 T. B. 741. 

(a) Kirby v. Sadgrwe^ 1 B. & P. (tf) Com. Dig. tit. Common (K.) ; 

13. Robert MaryaU Case, 9 Bep. 111b; 

{b) Honey v. Sayberton, Cro. Jac. and see Queen' » Coll., Oxford v. 

229 ; CarriU y. Baker, 1 Brownl. Sallett, 14 East, 489. 
227 ; Cooper v. Marshall, I Burr. (/) Atkinson v. Teasdale, 2 W. 

259. Bl. 817, 818 ; ffoskins y. JRobins, 2 

{c) Patrick v. Stubbs, 9U,&W. Wms. Sannd. 320, 328 ; Thomas y. 

830. Nichols, 3 Lev. 40. 

t2 



276 THB LAW OF COPYHOLPB. 

He may also drive the oattle of a commoner to see whether 
the oattle of a stranger are there^ or whether the oommon 
is Burchargedy hut not without a custom alleged; and if 
the oommon be soroharged, he may detain the oattle till 
satisfaction for the trespass, without a custom (g). If the 
tenant surcharges the common, or puts in oattle not levant 
and couchant, where he has a right only for cattle levant 
and couchant, the lord may either distrain the beasts as 
damage feamnf J or bring an action for damages against the 
tenant (A). But while exercising his rights, *the commoner 
is not responsible for damage that may arise from the 
negligence of others, as where the owner of the wajste sets 
up a stack of com there which is eaten by the cattle, or the 
like (t). 
Approvemflot Again, by the Statute of Merton, 20 Henry HI. o. 4, 
as extended by the Statute of Westminster the Second, 
13 Edward I. st. 1, o. 46, and by the Statute 3 & 4 
Edward VI. o. 3, the lord of the manor, or other owner 
of a waste (A:), may approve or inclose for his own benefit 
part of the waste as against the commoner, provided only 
he leaves sufficient pasture for the commoners together 
with free ingress, egress, and regress from their tenements 
into the waste; but in this case the duty lies on the person 
making the indosure to show that sufficient pasture 
remains (/) ; and provided this is the case at the time of 
making the inclosure, the validity of the act will not be 
affected by the fact that the pasture may afterwards turn 
out to be not sufficient, and a similar inclosure may be 
made as often as it happens that more than sufficient 
remains for the oonmioners (m). The Statute of Merton, 



(^) Bromfield t. Tei^h, 2 Lev. 87 ; (») Farmor y. Hunt, Oro. Jac. 271. 

. FoUet T. Troake, 2 Ld. Baym. 1186. {k) Olover v. lane, 8 T. B. 446. 

(A) Dixon Y. Jamea, 1 Freem. (/) Arlett y. BlliSj 7 B. & G. 346; 

273; mu y. Bowles^ Willes, 638; Smith y. Brownlow (Earf), L. B. 9 

Wooliyob, CommonB, 201—203; Eq. 241 ; Betts y. Thomptim, L. B. 

WilliamB, Commons, 122 ; but see 6 Ch. 732. 

Anon., 3 Wils. 126. (m) 2 Inst. 87. 



RIGHTS OF CX>MMON. 2 

howeTer, has no ref erenoe to the case of oommoners having 
rights of turbary, estovers, or the like (n). It is clear that 
many distinct rights of common may exist independently 
of each other in different parts of the same manorial waste. 
** A right of turbary may be exerciseable in the fenny and 
marshy places, or in places where the pared surface of the 
soil will provide fuel for the commoner; a right of estovers 
may be used in the portions covered with wood, or where 
the plants grow, which may be taken for fuel and repairs ; 
a common of piscary may be exercised in the streams and 
ponds, a common of digging in the quarries, sand-pits, and 
ooal mines ; while a common of pasture may very often be 
taken over the whole waste, not only in places where 
pasture can be taken by the cattle but also wherever they 
may range in search of food. The question has therefore 
arisen on several occasions, whether inclosures can be made 
against common of pasture under the Statute of Merton in 
wastes where these other rights exist ; and it was decided 
in the case of Fawcett v. Strickland {o) that the owner of 
the soil may inclose a portion of it for his own use against 
tenants having rights of pasture, notwithstanding that the 
same tenants have also appurtenant rights of turbary, 
piscary, estovers, digging, &c., provided that he satisfied 
the requirements of the statute by leaving sufficient pasture, 
and did not injure the minor rights of conunon" {p). 
Although the lord cannot inclose against such a right of 
turbary under the Statute of Merton, yet where there are 
two or more rights of common in the same waste, the 
right of turbary, &c., will not hinder the owner from 
inclosing against common of pasture, because they are 
distinct rights. '^ Supposing that one man has conmion of 
pasture and another a conmion of turbary in the same 
waste, he that has common of pasture cannot justify 
throwing down the lord's inclosures, provided there be 

(n) DuherUy ▼. Page^ 2 T. B. 391. {p) Elton, Commons, 248, 219. 

(o) Willee, 67. 



1 1 



278 THE LAW OP COPYnOLDS. 

su£5cient oommon of pasttire left^ beoause another pereon 
has common of turbary in the same oommon. And 
whereyer rights are in their nature perfectly distinct, as 
oommon of pasture and oommon of turbary certainly are, 
we think it wUl be just the same, though they happen to 
concur in one and the same person. If it were otherwise 
it would just be the same in common of piscary and 
common of estovers, for Lord Coke says that the statute 
does not extend to either of them. Yet it would seem to 
be absurd to say that a lord cannot inclose against common 
of pasture, because his tenants or some other persons have 
common of piscary or estovers in the same waste : whereas 
his indoeuxe Wbe no interruption to their enjoyment of 
their common of piscary or estovers, and very probably 
their common of estovers may be the better for such an 
inelosure. If indeed by such indosure their common of 
piscary or estovers were affected, or they were interrupted 
in the enjoyment of either of these rights, they might 
certainly bring their action, and the lord in such a case 
coidd not justify such inelosure in prejudice of these 
rights" (y). 

A comparison of the cases relating to inclosures in 
wastes where there are rights of common other than 
common of pasture will show that under the Statute of 
Merton the owner may inclose against appendant and 
appurtenant rights of pasture, leaving sufficient pasture, 
although the same persons, or others, have other rights of 
common in the same waste, as common of turbary, 
estovers, piscary, digging, &c., whether appurtenant or in 
gross; but the exercise of these rights must not be impeded 
by the inelosure; and that, without reference to the statute, 
the owner may inclose portions of ground wherein other 
rights of conunon are exercised, provided he does not 
thereby infringe the original grant and permission, the 

{q) Per Willes, C. J., in Fawcett r. Strickland, Willee, 67, 60. 



RIGHTS OF COMMON. 279 

nature of whicli is shown bj the extent of tlie oopjholder's 
onstom (r). 

A custom has been alleged in some manors for the lord inolosurefl of 
to grant parts of the waste as copyhold, without regard to ^Jl^^^ ^ 
the consent of the homage («) ; but any grant so made 
would be invalid unless the lord could show that he had 
left su£Bioient pasture for the commoners, as a custom for 
the lord to inclose or grant leases of the waste without 
limit or restriction is bad (t). But where such a custom 
existed and the necessary conditions were fulfilled, the 
parcels so granted were considered in all respects copy- 
hold tenements, as if they had been so from time im- 
memorial {u). By the Copyhold Act, 1887, however, it 
is now provided that after the 16th of September, 1887, 
it shall not be lawful for the lord of any manor to make 
grants of land not previously of copyhold tenure to any 
person, to hold by copy of court-roll or by tenure of a 
customary nature, without the previous consent of the 
Board of Agriculture; and the Board, in giving or 
withholding their consent, are to have regard to the 
same considerations as they would take into account in 
the case of an inclosure of common lands ; and whenever 
any such grant has been lawfully made, the land com- 
prised in it is held by the grantee as in free and common 
socage. Previously to the passing of the above-mentioned 
Act, it had been decided that the effect of a licence by a 
lord to a tenant to inclose a piece of waste land was not 
to convey a copyhold interest to the tenant, but to give 
him a common-law holding. The lord in such a case, it 

(r) Grant ▼. OunneTf 1 Taunt. («) See Northwiek (Lord) ▼. Stan^ 

436 ; Duberky T. Tage, 2 T. B. 891 ; way, 8 B. & P. 346; Badyer y. Ford, 

ShiOeetpear v. Feppin, 6 T. B. 741 ; 3 B. & Aid. 153 ; Arlett v. JEllit, 7 

Zake T. Flaxton, 10 Ex. 196 ; Las- B. & 0. 346. 

eelUs y. Onthw {Lord), 2 Q. B. Diy. (0 Badger y. Ford, 3 B. & Aid. 

438 ; Sobifuon y. Dule^ Singh, 11 163 ; Arlett y. Fllis, TB,kQ, 346. 

Ch. Diy. 798 ; Roherteon y. Sartopp, («) Northwiek [Lord) y. Stanway, 

43 Ch. Diy. 484. 8 B. & P. 346. 



280 



THE LAW OF COPYHOLDS. 



GraniBof 
waste with 
oonsent of 
homage. 



was said, was in the position of a freeholder entitled in 
reversion expectant upon the tenancy created by the licence, 
and after twenty years from the indosure the land wonld 
become the lord's free from commonable rights (x). 

The lord has not nnfrequently a customary power to 
grant, with the consent of the homage, parcels of the 
waste to be held by copy of court-roll (y) ; but under the 
provisions of the Copyhold Act, 1887, which have just 
been mentioned, this power wiU not now be exeroiseable 
without the previous consent of the Board of Agriculture, 
and the land comprised in the grant wiU now be held as 
in free and common socage. It has been suggested that 
where such a custom as this exists the Statute of Merton 
woidd not apply, and that accordingly the lord could not 
under any circumstances inclose, unless with the consent 
of the homage (s), but it seems to be dear that this power 
of the lord of a manor to grant parcels of the waste with 
the consent of the homage is perfectly distinct from the 
right of approvement leaving sufficient common, which 
belongs to every owner of waste land. It is intended as 
an additional benefit to the owner of the manor and not 
as a restriction upon his common-law right, which is 
superior to any such custom (a). Approvements are made 
for the owner's private benefit, and the land inclosed 
thereby is always of freehold tenure; while indosures 
Tmder these spedal customs are for the benefit of a new 
tenant, the land being formerly held by copy of court* 
ToU (6). It seems, indeed, that these two separate rights 
may be exercised at one time in the same waste. " The 
first exists at common law, which is called approvement. 



{x) Mt'Oen. v. TomliM, 16 Ch. 
Diy. 160 (0. A.). 

(y) See Eughet v. Oamst, Sel. 
Gas. Ch. temp. King, 62 ; Went- 
towrth {Lady) ▼. Clay, Gas. temp. 
Finoh, 263; Tyssen v. Clarke, 3 
Wils. 641 ; Polkard v. ff&mmeU, 6 T. 



B. 417, n.; Steel v. FHekettf 2 
Stark. 463, 470 ; BoulcoU ▼. Win- 
mill, 2 Gamp. 261. 
(«) Williams, Gommons, 126. 

(a) DuberUy v. Fage, 2 T. B. 391. 

(b) Arleit y. JSllie, 7 B. & G. 346. 



BIGHTS OF COMMON* 281 



lU^s^ ^. C— -<-•*- f^i.' i^'Z^^' 



and is a right in the lord to inclose any portion of his 
common provided he leave sufficient to satisfy the rights 
of common which exist. The second is a special custom, 
if the lord and homage agree to inclose any portion without 
reference to rights of common " ((;). 

The general nature of these customs will appear from 
the following account of a case relating to the manor 
of Stepney. " The lady of the manor exhibited a bill 
in Chancery to establish a usage and custom within the 
manor that the lords of the said manor might upon the 
presentment of seven of the copyholders determine what 
waste ground was fit to be set out and inclosed, in order to 
build upon the same : and such presentment being agreed 
unto by the major part of the homage at the next court, 
the same was by the custom set out and inclosed accord* 
ingly, without any molestation or disturbance by the 
tenants." The presentment then sought to be established by 
a decree was opposed by several of the tenants, who brought 
actions for the disturbance of their commons of pasture, 
digging, and estovers, and denied the existence of the 
custom above described. The Court decreed after an 
examination of the evidence and inspection of the court- 
rolls from the reign of Henry VIII., "that this was a 
reasonable usage and fit to be established, and that the 
plaintifi had proceeded according to the usage in pro* 
curing the ground in dispute to be set out, presented, and 
allowed by the homage, and inclosed as aforesaid, and so 
had power to grant leases and estates thereof at her 
pleasure, to be inclosed and kept in severalty, &c." (d). 

The custom of the manor of Hackney also was dis- 
cussed in a trial at bar in the Common Pleas. A custom 
was proved to exist for the lord, with the assent of a 
homage jury, to make leases to the tenants for periods up 
to sixty years in length of portions of the waste but 

(0] Open Spaces Sel. Comm. {£) Wenivowth {Lady) y. Clay^ 

(1866), 1 Bep. Qn. 757, 853. Oas. temp. Fmch, 263 ; Yin. Abr. 

vi. 181. 



282 THE LAW OK OOPTHOLDS. 

never to make grants in fee. The lessee might inclose 
with the lord's lioenoe and the assent of the ofustomaiy 
tenants, so long as no prejudice was done to their rights. 
It was held that the lord might approve for his own use, 
if he left sufficient common, but that no i>er8on taking 
land by his grant under the custom could inclose without 
the assent of the homage (e). 

These customary modes of indosure prevail chiefly in the 
neighbourhood of London, as in the manors of Hampstead, 
Hackney, Stepney, Wandsworth, West Sheen, and Ham. 
But they are also to be found in the coimty of Dur- 
ham and elsewhere in the northern counties, and in the 
manor of Taunton Deane, in Somersetshire, there are 
many parcels of copyhold taken up out of the wastes, with 
the consent of the tenants, which are held and enjoyed 
under fine and rent certain in the same way as the other 
copyhold lands of the manor (/). 

Similar customs are found in manors within royal forests, 
the lords being able in certain cases to grant new copy- 
holds with the assent of the homage (g) : and the Crown, 
it is said, has made similar grants in Windsor Forest. 
How made. The mode of making these inclosures varies according 

to the special custom of each manor, the only invariable 
condition being that the lord shall not by this or any 
other method destroy the whole common. A custom to 
inclose at discretion would be void for want of limitation, 
and even before the passing of the Copyhold Act, 1887 (A), 
an unlimited power of creating copyholds would not have 
been allowed to any lord of a manor. Where it appeared 
that the lord had for a himdred and fifty years been 
accustomed to grant leases of portions of the waste, so that 
the whole conmion had gradually been destroyed, it was 

{e) TysB&n v. Clarke, 3 Wils. 541. (^) Boulcoit v. Winmill, 2 Gamp. 

(/) Bee Hex Y. Warblingtm (In- 261 ; Smith's Case, W. Jon. 272 ; 

habte, of) IT. B. 242 ; and Shilli- Sehwinge y. Dowell, 2 F. & F. 845. 

beer, CoBtoms of Taunton Dea^e, (A) Secfc. 6. 
27. 



RIGHTS OF COMMON. 283 

decided that sueli a right could have had no legal com- 
mencement, and therefore no lapse of time could make it 
valid (t). 

When the lord of a manor had by a deed acknowledged 
that the consent and confirmation of the homage was 
necessary for alienations of the waste to new copyhold 
tenants, he was not allowed to give evidence of having 
from time to time made such alienations without their 
consent (A;). 

If the lord claimed to make inclosures without the con- 
sent of the homage, he would have to prove that he had 
left sufficiency of common (/) ; but in cases where the con- 
sent of the homage is necessary to the making of the grant, 
the proof of sufficiency is afforded by their consent, " for 
being tenants themselves, it is not likely that they will 
lean unfairly towards the lord, . . . and it may be reason- 
ably presumed that they have consented only when it is 
clear that the land granted may be taken without inter- 
fering with the rights of the commoners " {m). 

The freeholders of the manor may by special custom be Conaent of 
summoned to the customary court, where consent to the ^^^^f^h^ 
indosure is to be given. Thus it is said that the lord of waste, 
the manor of Wimbledon has liberty to grant parcels of 
the waste with the consent of the free and customary 
tenants (n) ; and in the manor of Lewisham, the copy- 
holders having been long enfranchised, only freeholders 
are summoned to the Court (o). The freeholders are also 
summoned in other manors, as in littlecott, in Wilt- 
shire (p). But it may be noticed that where free tenants 
are thus summoned there is usually some evidence that 

(i) Badger y. Fordf 3 B. & Aid. (ft) Open Spaoee Sel. Oomm. 

163; and eiee Benaon y. Cheater, 8 (1865), 1 Bep. Qa. 1664; Watk. 

T. R. 396 ; Ivatt y. Mann^ 4 Soott, Copyh. ii. 554. 

N. S. 842. (o) Open Spaces Sel. Gomm. 

{h) JDruryy, Moore, 1 Sfcark. 102. (1865), 2 Bep. Qu. 2058—2971. 

(/) Arlett y. EUis, 7 B. & C. 346. (p) Watk. Oopyh. ii. 497. 
' (m) Ibid. 368, per Bayley, J. 



284 



THE LAW OF COPYHOLDS. 



To whom 
grants of 
waste may be 
made. 



Bigbts of 
grantees of 
waste. 



Castomaiy 

inolosniesby 

tenants. 



the tenants generally are not commoners at all^ but joint 
owners of the herbage of the waste (q). 

In most cases the customary grant of waste land may 
be made to any person wiUing to take the same, whether 
previously a tenant of the manor or not. In others, 
howeyer, the grantee must already be a tenant (r). 

In order to prevent an undue diminution of the common 
by an increase of tenants, it is the custom of some manors 
that the new grantees shall not be entitled to rights of 
common on the waste. In the absence of such a custom, 
however, it would seem that where the piece of land is 
inclosed, and granted as a tenement under a custom, as 
the custom is from time immemorial, the tenant would 
have the same privileges as any of the copyholders {s) ; 
but it is said that ^' if the lord approves under the Statute 
of Merton or approves part of the waste as freehold with 
the consent of the homage, there is no doubt that the land 
so approved is not only discharged from all rights of 
common over it, but cannot entitle its owner to place 
any cattle upon the common " (t). 

Besides the customary inclosures by the lords of manors 
above described, there are in certain parts of the country 
customs for inclosures to be made on manorial wastes by 
the tenants themselves. Thus, in the manor of Framfield, 
in Sussex, where the custom allows the lord to make cus- 
tomary inclosures of new copyholds, there is said to be a 
custom that the old tenants may cultivate the portions of 
the waste which adjoin their tenements, and may make 
small inclosures for special purposes of farming. In other 
places the customary tenants have the privilege of making 
temporary inclosures until one or more crops shall have 



{q) Elton, Commons, 270, 271. 

(r) See J\/s8m t. Clarke, 3 Wils. 
641 ; Clarkson y. WoodKoim, 6 T. B. 
412, n.; Bouleott y. Winmill, 2 
Camp. 261. 



(«) Northfoieh (Lord) y. Sianwa^j 
3 B. & P. 346. 

{t) Williams, Commons, 132, 133. 
Cf. Bracton, lib. iy. c. 38, fl. 
226 b, 226. 



RIGHTS OF COMMON. 285 

been raised on the new 'intakes" or inoloBures (u). In 
several parts of Cornwall the tenants are allowed to break 
up the forze-crofts on the waste of a manor at periodical 
intervals {x)y and in the Forest of Sherwood a custom was 
proved for the commoners in the manors within its pre- 
cincts to take in temporary inclosures of land, called 
" breaks," varying in extent from 40 to 250 acres, and 
to keep them in cultivation for five or six years, after 
which they are again thrown open. Eor these inclosures, 
however, a licence has always been required from the lord 
of the manor, as well as from the Grown officials in charge 
of the forest (y). And in the common of Eingsmoor, in 
Somersetshire, the commoners were entitled to elect a jury 
of twelve to manage the moor, with power to inclose por- 
tions for their own use during their year of office (2). 

The rights of commoners may also be lost by reason of Inolosnre ij 
an encroachment, and by neglect to assert the rights {a). ^°"* ™ 
Commoners are entitled to protect themselves against 
an encroacher by an action for disturbance of the common, 
or by pulling down the fences which prevent the enjoy- 
ment of their rights (6). 

In the case of Attotmey-Oeneral v. Tomline (c) the Court Whether 
of Appeal doubted whether the doctrine that encroach- mantebya 
ments made by a lessee enure to the benefit of the land- «>py^oWer 

** are of copy • 

lord was ctpplicable to the case of encroachment by a hold tenure, 
copyholder, so as to create a copyhold tenure of the land 
inclosed, but in the particular circumstances of the case they 
held that the doctrine, being a principle founded on pre- 
sumption of fact, was excluded by the fact that the in- 
closure was not an encroachment, having been made by 



(«) See Elton, Gommona, 277, (a) See 8 & 9 Vict. 0. 118, 8. 62; 

278. 10 & 11 Vict. c. 11), s. 3 ,- Lowe y. 

(x) Worgan, Snrv. Oomw. 631 ; Carpenter, 6 Exch. 826. 

Fraeer, Suit. Gomw. 66. {b) AU.-Oen. y. Tomline, 16 Gh. 

(y) Lowe, Sory. Notts. 9. Diy. 160, 169, per James, L. J. 

• (c) See Smith y. Barrett, 1 Sid. (e) 16 Gh. Dir. 160. 
161, 162 ; Elton, Gommons, 279. 



1 



286 THE LAW OF G0PTU0LD8. 

lioenoe from the lord, and that subsequent admittance to 
the original copyhold tenement did not treat the inclosure 
as part of that tenement. " I do not saj that under any 
ciioumstances an encroachment could become copyhold or 
be held by copyhold title, because, looking at the circum- 
stances under which these questions as to accretions as 
between landlord and tenant have arisen, it may well be 
that they rest upon the principle that the lessee, being in 
a fiduciary position, is not at liberty to dispute his land- 
lord's title to encroachments, the absolute title of the 
tenant to which might materially depreciate the value of 
the original premises when given up to the landlord, a 
principle which could hardly apply to encroachments by a 
copyholder" (d). 
Iijoiosnro of The inclosure of waste land and the consequent extin- 
agicemcnt. guishment of the rights of common thereon may also be 
effected by agreement between the owner of the soU and 
the commoners. This practice was not xmoommon before 
it became usual to obtain local Inclosure Acts, and it seems 
to have been regarded as the only mode of bringing wastes 
into cultivation over which there existed rights of common 
other than common of pasture, to which the Statutes of 
Merton and Westminster the Second (^) alone related. 
It was formerly thought that inclosures were beneficial 
not only to the parties directly interested but also to the 
community generally, and these agreements were favoured 
accordingly by the law and were enforced by the Court of 
Exchequer and the Court of Chancery, notwithstanding 
the dissent of one or two of the commoners or some inform 
mality in the making of the agreement. It was doubted 
after a time whether these decrees would be binding, unless 
all the parties had agreed ; and it was, of course, f oimd to 
be impossible in many cases to obtain the assent of all the 
commoners, or to choose a time when they were all capable 

(d) Ibid. 160, lei, per Cotton, {$) 20 Hen.m. c.4; ISEdw.I. 

L. J. Bt. 1, c. 46. 



RIGHTS OF COMMON. 



287 



of giying assent ; and it aooordinglj beoame the practice 
to have tbe effect of such agreements confirmed by local 
Acts of Parliament (/). The method provided by these 
Acts was to appoint commissioners to allot and award the 
land to be inclosed amongst the owners and the commoners 
in proportion to their respective interests ; it is said that 
about four thousand of these Acts were passed during the 
last two centuries {g). In the reign of Gteorge III. they 
became so numerous that a statute was passed in 1801 (A) 
for the purpose of consolidating the usual clauses. This 
statute contained various provisions regulating the pro- 
ceedings of the commissioners to be appointed by the 
special local Acts, and protected the lord's seignories, 
rights, and royalties (i). The Act of 1801 has, however, 
been superseded by the Indosure Acts, 1846 to 1882 (k). Inolosure 

T» j.1. T 1 A i. io.«fr i_ J £ • • Acts 1845 to 

By the Inclosure Act, 1845, a body of commissioners was i882. 
appointed under the style of the Inclosure Commissioners 
of England and Wales, and with their sanction inclosures 
have been more expeditiously and more cheaply effected (/). 
The rights and duties of these Commissioners were trans- 
ferred to and vested in the Board of Agriculture by the 
Board of Agriculture Act, 1889 (m). The lands which Lands subject 
are subject to be inclosed under the provisions of the 
Inclosure Acts, 1845 to 1882, are described in the 11th 
section of the Act of 1845 as follows : '' All lands subject 
to any rights of common whatsoever, and whether such 
rights may be exercised or enjoyed at all times, or may 
be exercised or enjoyed only during limited times, seasons, 
or periods, or be subject to any suspension or restriction 



to be inclufied. 



(/) Elton, Gommonfl, 166 et teq, 

{g) WilliamSy Commons, 249 ; 
Elton, Commons, 160—155, 166. 

{h) 41 Geo. in. 0. 109. 

(t) Ibid, B. 40 ; and see Toumley 
Y. Gibson, 2 T. R. 401 ; and 22 & 23 
Vict. 0. 43, as. 1—6. 

(k) 8 & OViot. 0. 118; 9 & 10 
Vict. 0. 70 ; 10 & 11 Vict. c. HI ; 



11 & 12 Viot. 0. 99 ; 12 & 13 Viot. 
c. 83 ; 14 & 15 Vict. o. 53 ; 15 & 16 
Vict. c. 79 ; 17 & 18 Vict. c. 97 ; 20 
& 21 Vict. c. 31 ; 22 & 23 Viot. c. 43 ; 
31 & 32 Vict. c. 89 ; 39 & 40 Viot. 
c. 56 ; 41 & 42 Vict. c. 56 ; 42 & 43 
Vict. c. 37 ; 45 Vict. c. 16. 

(0 8&9Vict. c. 118, 8.2. 

(m) 52 & 53 Vict. c. 80. 



288 



THE LAW OP COPYHOLDS. 



whatBoeyer in respect of the time of the enjoy menfrihereof ; 
all gated and stinted pastures in which the property of the 
soil or of some part thereof, is in the owners of the cattle- 
gates or other gates or stints, or any of them ; all gated 
and stinted pastures in which no part of the property of the 
soil is in the owners of the cattle-gates or stints ; all land 
held, occupied, or used in common, either at all times or 
during any time or season, or periodically, and either for 
all purposes or for any limited purpose, and whether the 
separate parcels of the several owners of the soil shall or 
shall not be known by metes, or bounds, or otherwise 
distinguishable ; all land in which the property or right 
of or to the vesture, or herbage, or any part thereof during 
the whole or any part of the year, or the property or 
right of or to the wood or underwood growing or to grow 
thereon, is separated from the property of the soil ; and all 
lot meadows and other lands the occupation or enjoyment 
of the several lots or parcels of which is subject to inter- 
change among {he respective owners in any known course 
of rotation, or otherwise '' ; but no waste lands of any 
manor on which the tenants had rights of common, nor 
any knd subject to rights of common which might be 
exercised at all times of every year for cattle levant and 
couchant upon other land, or to any rights of common 
which may be exercised at all times of every year, and not 
Authority of limited by numbers or stints, were to be inclosed under 
for inoloBureB. ^^^ provisions of the Act without the previous authority 
of Parliament (n). This sanction is now necessary for 
every inolosure under the Board (o) . A town or village 
green or a recreation ground is not subject to indosure (p), 
and special provisions are contained in the Inclosure 
Acts for protecting such greens from encroachments and 
nuisances, and for fixing and preserving their boundaries {q). 
The Board of Agriculture may require, as a condition of 



(ft) S&eViot. 0. 118,8. 12. 
(o) 16 & 16 Vict. c. 79, 8. 1. 
(j»)8&9Yiot. 0. 118,8. 16. 



{q) 20 & 21 Vict, 0. 31, 8. 12; 
89 & 40 Viot. c. 66, 8. 29. . 



RIGHTS OF COMMON. 289 

any inotesure under these Acts, the appropriation of an 
allotment for the purposes of exercise and recreation for 
the inhabitants of the neighbourhood (r), or the appropria- 
tion of an allotment for the labouring poor (s). They are 
also empowered to remedy any defects or omissions in 
awards made under local Inclosure Acts, or under the 
Acts for facilitating the inclosure of open and arable 
lands (t). The procedure to be adopted in obtaining the 
inclosure or regulation of any land which is subject to be 
inclosed under the Inclosure Acts is now regulated by the 
Commons Act, 1876. Under the provisions of that Act Commons 
the Board of Agriculture may entertain an application for ' 
a provisional order for the regulation of a common (in- 
cluding in the term " common " any land subject to inclo- 
sure), or for the inclosure of a common, or for the regulation 
of part and the inclosure of the remainder (u) ; but they 
will not sanction inclosure in severalty as opposed to 
regulation, unless it can be proved to their satisfaction, 
and also to the satisfaction of Parliament, that inclosure 
will be of benefit to the neighbourhood as well as to 
private interests and to the persons who are legally inte- 
rested in the conmion {x). The provisional order for the 
regulation of a conmion may provide generally or other- 
wise for the " adjustment of rights " in respect of such 
conmion, or for the "improvement of the common" (y), 
which terms are respectively explained in the 4th and dth 
sections of the Act. With respect to commons situate 
wholly or partly in any town or towns, or within six miles 
thereof, the Act provides that notice of the intended appli- 
cation for a provisional order must be served on the 
urban sanitary authority (z), and for the purposes of the 
Act a " town " is defined as meaning any municipal 
borough, or Improvement Act District, or Local Q-ovem- 

(r) 8 & 9 Yiot. o. 118, s. 30 ; and (») 39 & 40 Vict. o. 66, s. 2. 

Bee 39 & 40 Yiot. o. 66, s. 34. (:r) Ibid, preamble. 

(«) 8 & 9 Yiot. 0. 118, s. 31. (V) Ibid. s. 3. 

(0 Ibid, 8. 152. (z) Ibid. s. 8. 

E. V 



290 



THE LAW OP COPYHOLDS. 



Metropolitan 
oommons. 



Common 
Fields Inclo' 
sores Acts. 



ment District, haying a population of not less than 5,000 
inhabitants. A form of directions issued by the Board of 
Agriculture as to the mode in which applications for the 
regulation or inclosure of commons under the Indosure 
Acts, 1845 to 1882, are to be made, with explanations 
respecting the law as to the regulation and inclosure of 
commons, will be found in the Appendix. There can, 
however, be no inclosure under this Act of any common 
land such as is described in the Inclosure Act, 1845, which 
is situate either wholly or partly within the Metropolitan 
police district, as defined at the passing of the Metro- 
politan Commons Act, 1866 (a). A scheme for the 
establishment of local management with a view to the 
expenditure of money on the drainage, leveUing, and im- 
provement of any such land and to the making of bye- 
laws and regulations for the prevention of nuisances and 
the preservation of order thereon, may be made under the 
provisions of the Metropolitan Commons Act, 1866, and 
the Metropolitan Commons Amendment Act, 1869, on a 
memorial presented to the Board of Agriculture by the 
lord of the manor, or by any commoners, or by the local 
authority of the district in which such land is situate (i), 
or by any twelve or more ratepayers, inhabitants of the 
parish or parishes within which the land lies (c). 

It may be mentioned here that in order to provide for 
the better cultivation, improvement, and regulation of 
common arable fields and pastures an Act was passed in 
1773 {d) which was of great use in causing the gradual 
abandonment of the unprofitable system of agriculture in 
large open fields. The principal provisions of the Act 
were that three-fourths in number and value of the occu- 
piers of such open and common field lands in each parish 
or place cultivating and taking the crops of the same and 
having the consent of the owners in manner therein men- 



(a) 20 & 30 Vict. c. 122, s. 6. 
{b) Ihd. 8. 6. 



(0) 82 & 33 Yiot. 0. 107» s. 3. 
(d) 13 Geo. III. 0. 81. 



RIGHTS OF COMMON. 291 

tioned might at a meeting to be held and snmmoned as 
therein directed determine the course of husbandry to be 
observed during the next six years (e) ; that cottagers 
haviDg rights of common but no lands in common fields 
should not be debarred from exercising their rights, but 
might accept a compensation in lieu thereof , either by an 
annual payment or other annual advantage, and that if 
the occupiers of the common fields agreed not to depasture 
the lands, they might make allotments of them to the 
cottagers in lieu of their rights of common (/) ; but that 
nothing in the Act contained should prevent, or extend 
to prevent, any person from inclosing all or any part of 
his land to or for his own use or benefit, if he had full 
power or right so to do, thus preserving the right of a 
severalty owner in a common field to inclose his portion 
where such a right exists by custom {g). These provisions 
were amended in several respects by an Act passed in 
1836 to facilitate the inclosure of common fields, and com- 
monly known as Lord Worsley's Act (A). This latter Act 
provided that whereas it would tend to the improved 
cultivation of open and common arable, meadow, and 
pasture lands and fields, which were intermixed, if the 
proprietors of such lands were enabled by a general law 
to divide and inclose the same it should be lawful for the 
proprietors, with the consent of two-thirds in number and 
value of the persons interested therein, to inclose all such 
open fields and meculows, and all untilled slips or balks 
formerly serving as boundaries between the severalty 
portions («). The Act did not apply to manorial wastes, 
or to common fields in the immediate neighbourhood of 
London and some other large towns (A;), which are now 

{e) Ibid. 88. ly 2. Act to open and oommon arable 

(/) Ibid, 88. 8, 9. fields haying adjacent thereto, but 

{gi) Ibid. 8. 27 ; see Cheeatnan y. not separated by any fence there- 

Sardhanif 1 B. & Aid. 706, 712. from, tracts of grass land common- 

{h) 6 & 7 Will. rV. o. 116. able during part of the year. 
(t) Sect. 1. See 3 & 4 Vict. o. 31, (k) Sects. 64, 65. 

B. 4, extending the proyisions of this 

tj2 



292 THE LAW OF COPYHOLDS. 

dealt with under the Inclosure Acts and the Metropolitan 

Commons Acts alreculy mentioned ; and in other respects 

the provisions of Lord Worsley's Act are but seldom 

used. 

Leaaeofpor- The Act 13 Gteo. IIL 0. 81, also authorises lords of 

forpurpose of nianors, with the consent of three-fourths of the oom- 

improving moners, to lease not more than one-twelfth part of the 

residue. i • t • 

waste for four years, and to employ the rent received m 
draining, fencing, and improving the residue (/). 
Lands Glauses Under the provisions of the Lands Clauses Consolida- 
Si*i845f°^ tion Act, 1845, waste and other lands subject to rights of 
common, or lands in the nature of common lands the 
right to the soil of which belongs to the commoners, may 
be taken for the purposes of any railway company or other 
public body, subject to the payment of compensation to 
the commoners for their rights (w). The Act provides 
that, failing agreement between the promoters of the imder- 
taking and a committee of the commoners appointed in 
accordance with the terms of the Act, the amount of com- 
pensation payable is to be determined as in other cases 
of disputed compensation under the Act (n), and when 
received by the committee is to be apportioned by them 
among the several persons interested in it (o). If no com- 
mittee is appointed, the compensation is to be paid into 
Court, and upon petition the Court will order the amount 
to be paid either to a committee to be afterwards appointed, 
or in such manner for the benefit of the persons interested 
as it thinks fit (jt?). Under these provisions the apportion- 
ment will depend upon the nature of the commoners' 
rights. Thus, where all the resident freemen of a borough 
were entitled yearly during their residence within the 
borough to turn on to a common, which had been allotted 
under a local Inclosure Act to the corporation of the 
borough as trustees, one head of stock for a period and 

(/) Sect. 16. (o) Ibid. s. 104. 

{m) 8 Vict. c. 18, ss. 99—107. {p) Ibid. s. 107. 

(«) Ibid. 8. 106. 



HIOHTS OF COMMON. 293 

subject to a payment which were annually fixed by the 
corporation, it was held that, until re-investment of the 
compensation money in land subject to the same trusts as 
the common, the dividends should be apportioned among 
the resident freemen at the same time in each year as they 
had been accustomed to enjoy their rights of common (q). 
Again, where the freehold and copyhold tenants of a 
manor had rights of common over certain wastes and 
lammas lands, subject to bye-laws made by the homage, it 
was held that the compensation for portions of the lands 
taken oompulsorily was divisible among the freeholders 
and copyholders according to the stint fixed by the bye- 
laws, it having been found impossible to purchase other 
land in the neighbourhood (r) ; but although the same bye- 
laws declared that the occupiers of land under the copy- 
holders were entitled to rights of common over the wastes, 
it was held that these occupiers were not entitled to share 
in the compensation money, as their claims to a right of 
common could not be supported («). The Inolosure Acts 
of 1852 and 1854 provided that where money had been 
paid to a committee of commoners under the provisions of 
the Lands Clauses Act of 1845, and the majority of the 
committee were of opinion that the provisions of the Act 
of 1845 for the apportionment of the money could not 
satisfactorily be carried out, the committee might apply to 
the Inclosure Commissioners to determine whether the 
money should be apportioned. Upon receipt of the appli- 
cation, the Commissioners were empowered to call a meet- 
ing of the persons interested in the compensation money, 
and the resolution of the majority in number and interest 
of these persons was to determine the question whether 
there should be apportionment or not ; but if no resolution 
was arrived at, or if the Commissioners thought the reso- 
lutions unjust or unreasonable, they were empowered to 

{q) N<uh v. Coomhtt L. B. 6 Eq. 403. 
61. («) Austin Y. Amhurst, 7 Ch. Div. 

(r) Fox V. Amhurst, L. R. 20 Eq. 089. 



294 THE LAW OF COPYHOLDS. 

order the inveetment and application of the oompensation 
money as they thought fit(^). But these powers were 
found in practice to be insufficient ; and it is now provided 
by the Commonable Eights Oompensation Act, 1882, that 
when any money is paid by a railway or other public com- 
pany or corporate body or otherwise imder the provisions 
of the Lands Clauses Act and any Act incorporated there- 
with, or of any other Act of Parliament, to a committee of 
commoners as compensation for the extinguishment of 
commonable or other rights, or for lands being common 
lands or in the nature thereof the right to the soil of 
which may belong to the commoners, the committee or a 
majority in number of them or, after the expiration of 
twelve months from the payment of the money to the 
committee, any three persons claiming to be interested in 
the money may make application to the Conmiissioners {u) 
to call a meeting of the persons interested in the money to 
consider as to its application, and the Commissioners are 
to call a meeting accordingly: and at such meeting the 
majority in number and the majority in respect of interest 
of the persons present may decide by resolution that the 
money shall be applied and laid out in one or more of the 
following ways, viz. : — in the improvOTient of the remainder 
of the common land, in respect of a portion of which the 
money has been paid ; in defraying the expense of any 
proceedings under the Metropolitan Commons Acts or 
under the Inclosure Acts with reference to a scheme for 
the local management, or a Provisional Order for the regu- 
lation, of such common land, or of any application to Par- 
liament for a Private Bill or otherwise for the preserva- 
tion and management of such conmion land as an open 
space ; in defraying the expense of any legal proceedings 
for the protection of such common land, or the com- 
moners' lights over the same; in the purchase of addi- 

(t) 16 & 16 Vict. o. 79, B. 22; 17 (u) Now the Board of Agnool- 

& 18 Viofc. 0. 97, as. 16—20. tore: 62 & 63 Yiot. o. 30. 



RIGHTS OF COMMON. 295 

tional land to be used as common land ; in the purchase of 
land to be used as a recreation ground for the neighbour- 
hood ; and the resolution binds the minority and all absent 
parties (d;). The Act also contains provisions regarding 
the conveyance to trustees, to be appointed by the Board of 
Agriculture pursuant to the resolutions, of land which has 
been purchased under its provisions for use as common 
land, and as to the conveyance of land purchased for use 
as recreation ground to the local authority of the dis- 
trict (y). The Act also empowers the Board to direct by 
order under their seal that any expenses which they may 
have incurred in relation to the matter shall be paid to 
them out of the compensation money, and that, subject to 
such payment, the money shall be applied according to the 
resolutions (z). 

If a company takes possession of the land without 
having complied with the provisions of the Lands Clauses 
Act of 1845 as to the payment of compensation for the 
commoners' rights, it will be liable to an action at the in- 
stance of any commoner for the disturbance of his rights, 
notwithstanding that it may have obtained a conveyance 
from the owner of the soil (a). 

Where the right to the soil of the common or waste 
lands is in the lord of the manor, or in some person other 
than the commoners, the Lands Glauses Act of 1845 pro- 
vides that upon payment or tender to the lord or such 
other person of the compensation which has been agreed 
upon or determined in respect of the right in the soil, or on 
the deposit thereof in the bank, the lord or oth^ person is 
to convey the lands to the promoters of the undertaking ; 
and upon default thereof the promoters may execute a deed- 

(x) Sect. 2 (1). may inoor in the holding of meet- 
ly) Sect. 2 (2) — (5). ingB or the making of inquiries 
(s) Sect. 2 (1). See also 31 & 32 under the Copyhold or Indosure 
Vict. 0. 89, B. 1, as to the right of Acts. 

the Boaxd to take security for the (a) Stoneham y. Lovuhn^ Brighton 

payment of any costs which they ^ 8, C, JRaiL Co.^ L. B. 7 Q. B. 1. 



296 



THE LAW OF COPYHOLDS. 



InolosoTefl to 
promote 
growth of 
timber. 



poll in the manner provided by the Act, and the execution* 
of such conveyance or deed-poll vests the lands absolutely 
in the promoters, but without prejudice to the rights of 
the commoners (b). 

There ore also certain statutes which provide for tem- 
porary inclosures of wastes to promote the growth of 
timber and the planting of trees. Of these the first to be 
mentioned is the Act 22 Edw. IV. o. 7, which provided 
that if any person having wood growing on his own ground 
within any forest or chase, or purlieu thereof, should fell it 
with the king's licence, where the forest or chase belonged 
to the king, he as owner of the ground and the persons to 
whom he may have sold the wood might immediately after 
it was felled inclose the ground with hedges sufficient to 
keep out aU manner of beasts and cattle for the purpose of 
preserving the young spring, and might keep up the 
hedges for the space of seven years and repair them as 
often as necessary within that time without further licence. 
In Sir Francis Barrington^s Case (c) the Court held that 
this Act did not extend to the wood of a subject in which 
another person had a right of common, but only to a 
several wood. The statute 35 Hen. VIII. c. 17, how- 
ever, enabled the owner of any wood in which others had 
a right of common to enclose a fourth port of the wood by 
agreement with ^' the tenants and inhabitants, being com- 
moners," or by order of the two justices of the peace ; but 
this statute was repealed in the year 1827 (d). 

By the Act 29 Geo. II. c. 36, owners of wastes, woods, 
and pastures wherein other persons had rights of common 
of pasture, were empowered, with the assent of the major 
part in number and value of the owners and occupiers of 
the tenements to which the right of common of pasture 
belonged, to inclose and keep in severalty for the growth 
and preservation of timber and underwood any part of such 



{b) 8 Vict. 0. 18, 8. 100. 
(e) 8Bep. 136 b. 



(rf) 7 & 8 Geo. IV. 0. 27, b. 1 ; seo 
Dibben y. AngUsea {Marquit of), 2 
Cr. & M. 722. 



RIGHTS OF COMMON. 297 

wastes, woods, and pastures for such time and in such 
manner, and upon such conditions, as should be agreed 
upon ; and similcur powers of inclosure were given to the 
major part in number or value of the owners and occupiers 
of the tenements to which the right of common belonged, 
with the assent of the owners of the wastes, woods, and 
pastures (e). The Act also provided that any recompense 
which might be agreed to be given to the commoners 
should be paid to the overseers of the poor of the parish 
where ihe wastes lay for the relief of the poor (/) ; but 
this provision was repealed by an amending Act passed 
shortly afterwards (^), which, after reciting that in many 
eases the right of common of pasture in the ground inclosed 
might not belong to all the owners and occupiers of tene- 
ments in the parish where the waste lay, directed the 
recompense to be paid to the persons interested in the right 
of common in proportion to their respective interests {h). 
The amending Act, however, extended the powers of the 
Act of 29 Geo. II. to tenants for life or years deter- 
minable on lives during the subsistence of their estates (e). 
These statutes were considered in the case of Nicholh v. 
Mitford (A), where it appeared that the freehold tenants of 
the mcmor of Bedham in Sussex were not only entitled to 
common of pasture, but were also collectively the owners 
of the bushes and underwoods growing on the wastes of 
the manor. In 1769 the lord of the manor entered into an 
agreement under the Act 29 Geo. 11. c. 36, with the 
major part of the tenants for the periodical inclosure of 
parts of the waste for the growth and preservation of 
timber and underwood, and this agreement appeared to 
have been acted upon from the year 1773 until 1880, when 
two of the freehold tenants of the manor raised an action 
on behalf of themselves and aU other the freehold tenants 
to restrain the lord from further infringement of their 

{e) Sect. 1. (h) Ibid, 8. 1. 

(/) Sect. 2. (0 Ibid. b8. 2, 3. 

is) 31 Geo. II. c. 41. \k) 20 Ch. Div. 380. 



208 



THE LAW OF OOPYHOLDS. 



Other statu- 
tory powers 
of dealing 
with -wastes. 

Conyeyance 
for church, 
churchyard, 



Conyeyance 
for site of 
school or 



rights. In a special case setting out the above facts, it was 
held by Hall, V.-C, that the Act 29 Geo. IT. o. 36 applied 
only to agreements by persons entitled to rights of common 
of pasture, and not to agreements by persons who were 
owners of the bushes and underwoods, and that accordingly 
the agreement of 1739 was inoperative against such owners, 
and that the lord had no right to inclose as against them. 
" The Act," said the Vice-Chancellor, " would seem to be 
an extension of the Statute of Merton, so as to authorize 
inclosure with the specified assent though there would not 
be sufficient common left for the commoners, but not to 
subject to inclosure any land of which the lord wasnot, sub- 
ject only to the rights of the commoners, the owner " (/)• 

There are also various statutes which enable lords of 
manors to convey portions of the wastes or common lands 
for different purposes. Thus by the Act 51 Geo. III. 
c. 115 a lord may by deed enrolled as provided in the 
statute grant any portion, not exceeding five statute 
acres, freed and absolutely discharged from all manorial 
rights, indudiug rights of common, to the minister of any 
parish and his successors, for the purposes of erecting or 
enlarging a church or chapel, or for a churchyard or burial 
ground, or for a glebe to erect a mansion house and other 
conveniences for the residence of a clergyman (m) ; but it 
has been held that this does not enable the lord to make 
grants overriding any rights of the public or customary 
rights of inhabitants (n). Similar powers are also given 
to the lord to convey a portion of the wastes for the pur- 
poses of the Church Building Acts (o). 

Again, by the Act 4 & 5 Vict. c. 38, which re-enacts 
and extends the provisions of the Act 6 & 7 Will. IV. 



(/) Ibid., 387. 

(m) Sect. 2. 

(n) Forbet ▼. JSeeUs, Comra, for 
England, L. R. 16 Eq. 61. For 
instances of public and customary 
rights belonging to inhabitants, 



see Ahhoi ▼. Wwkly, 1 Lev. 176 ; 
and JSdU ▼. Nottingham, 1 Ex. 
Div. 1. 

(o) 68 Geo. m. 0. 46, s. 38; 19 
& 20 Yiot. 0. 104, B. 28. 



RIGHTS OF COMMON. 299 

0. 70 and affords further facilities for the conyeyance of literary, &o. 
sites for schools, provision is made for the gift of any "^s^^t^^^o^- 
quantity of land, not exceeding one acre, as a site for a 
school for the education of poor persons, or for a residence 
for the schoolmaster ; and it is enacted that where, a lord of 
a manor gratuitously conveys any portion of waste or com- 
monable land for these purposes, the rights and interests 
of all persons interested in the land so conveyed are to be 
barred and divested by the conveyance ; but if the land 
ceases to be used for the purposes of the Act, it is to revert 
to its former condition (p). The lord may also grant any 
portion of waste or commonable land, not exceeding one 
acre, as a site for an institution of the nature specified in 
the Literary and Scientific Institutions Act, 1854 (q). 

The guardians of the poor are also empowered, with the Inclosures hy 
consent of the lord of the manor and the major part of the ^*^^^* 
commoners, to inclose any portion, not exceeding fifty acres, 
of the waste or common lands lying in or near the parish, 
and to cultivate and improve the land for the use and 
benefit of the poor of the parish, or to let it to poor and in- 
dustrious inhabitants of the parish for occupation and cul- 
tivation (r) ; and the guardians have similar powers for 
sLmilar purposes over forest and waste lands belonging to 
the Crown with the consent of the Treasury («). 

{p) 4 & 6 Vict. 0. 88, 8. 2 ; and (r) 1 & 2 Will. IV. c. 42, a. 2 ; 

aee 15 & 16 Vict. o. 49. 6 & 6 WiU. IV. o. 69, a. 4. 

{q) 17 & 18 Vict. c. 112. («) 1 & 2 Will. IV. c. 69, a. 1. 



300 THB LAW OF COPYHOLDS. 



CHAPTER rX. 

MANORIAL COURTS. 

The holding of manorial ootiits has become so rare, except 
where copyholders are concerned, that very little need be 
said here about their nature and incidents. 
Oourt-baron. Every legal manor has a court-baron as one of its neces- 
sary incidents, in which the free-tenants are the judges 
and the steward, who is an essential part of the court, is re- 
gistrar (a) . The court-baron was anciently held at intervals 
of three weeks, but is now held but seldom, except in those 
manors where a body of freeholders have a set of customs 
relating to fines, heriots, regulation of commons, and the 
like, resembling the customs of copyhold tenants. In case 
of necessity, the lord may be compelled to hold a court- 
baron, or may be restrained from holding it too frequently 
to the oppression of his tenants (6). Though no court has 
been held for the manor time out of mind, the right to 
hold the court is not thereby lost, as the court is incident 
to the manor of common right (c). But to constitute a 
court-baron, it must be held before two free-tenants 
subject to escheat (d) ; if, therefore, all the tenancies, or 
all but one, have escheated to the lord or have been 
purchased by him, the right to hold the court will be gone, 

(a) Go. Copyb. s. 31 ; Scroggs, Hen. IIL showing how the period 

Courts, 3rd ed. 62 ; Bex v. Stanton^ of three weeks was fixed for the 

Gro. Jao. 259 ; Solroyd v. Breare, manorial ooorts. 

2 B. & Aid. 473. (e) Scroggs, Courts, 65. 

{h) Fitzh. Nat. Brev. 12 D. ; 2 (^ Chetwode v. Crew, Willee, 

Bac. Abr. 634 ; see Appendix for 614 ; Bradshaw y. Zawaon, 4 T. B. 

an extract from the Close BoU of 1 8 443. 



MANORIAL COURTS. 301 

and the manor will be extinguished (&), although it may 
still exist as a reputed manor for the purpose of making 
title to any franchises belonging to the lord (/). A court- 
baron ought to be held within the manor {g)y but by special 
custom the court may be held elsewhere (A). Such customs 
are generally found to exist in cases where the lords, being 
seised of two or three manors, have usually kept at one the 
courts for all (*). 

In a great number of manors the lords have the privi- Gourt-leet. 
lege of holding a court-leet, which, so far as it is useful in 
the present day, is held for the purpose of presenting 
small offences in the nature of a common nuisance which 
require immediate attention and redress. '^ A court-leet is 
a court of record, having the same jurisdiction in particular 
precincts as the sheriff's toum and leet has in the county ; 
it is not necessarily incident to a manor like a court-baron, 
but was created by grants from the Crown to certain lords 
of manors in order that they might administer justice to 
their tenants at home" {k). Without entering on a dis- 
cussion as to the origin of these courts, it may be remarked 
that they are in. all probability as old as the manorial 
system itself, but are treated in law as franchises granted 
by the Crown in each case to the lord of the manor at 
some time before the beginning of legal memory. To 
every court-leet is annexed what is called the View of 
Frank-pledge, now obsolete, which refers to the ancient 
system by which the householders of every tything were 
pledges or mutual bail for the good behaviour of each 
other. The court still retains the style or title of the 
" Court-leet and View of Frank-pledge of our Lady the 
Queen, held &c."(/). All inhabitants within the district 

{e) Delaeheroit y. DetaeheraU, 11 (t) Go. Litt. 58 a. 

H. L. Gas. 62, 106. \k) Gni. Dig. tit. 27, b. 47 ; and 

(/) Soane ▼. Inland, 10 East, see Cohbrooke ▼. Elliott, 8 Buzr. 

269. 1869. 

(^) Melwieh y. Luter, 4 Bep. 26 a. (/) Bitson, Gonrts Leet, introd. 

(A) Clifton y. Molin^ux, 4 Bep. p. y. 
27 a. 



302 THE LAW OF COPYHOLDS. 

of the oourt-leet are bound to attend, under penalty of 
some trifling fine, if they have no proper excuse for being 
absent (m). In the absence of a special custom to the 
contrary, it is usual for the steward to order the bailiff to 
give notice to a number of the principal inhabitants, 
sufficient to ensure having a jury; the number is 
usually more than twelve and less than twenty-four, 
twelve being the number required for the leet-jury. If 
they do not come upon the summons they may be amerced 
by the court, and if they appear and refuse to serve they 
may be fined for contempt of court (n). The steward, 
being the judge (o), is not the proper person to impanel 
the jury, but by custom may have the power of nomina- 
tion (p). The chief function of the jury is to appoint or 
in some places merely to present the appointment of 
certain officers, as the bailiff, constable, &c. ; and in some 
places to nominate the mayor and other officers of a 
borough (q) ; and also to present all such nuisances to the 
inhabitants as the stopping up of ways, turning of water- 
courses, and the like, as require inmiediate attention and 
redress. It has been held, therefore, that a custom to 
swear the jury in one court-leet to inquire and return their 
presentments at the next court would be void (r). But 
the jury has properly nothing to do with inclosures or 
encroachments upon the wastes of the manor, nor with 
making bye-laws for the regulations of commons ; where 
such bye-laws are found to have been made at courts-leet, 
it will generally be found that a court-leet and some other 
manorial court have been held together without proper 
distinction of their respective functions («). 

(m) DeJaeheroit y. Ddaeherois, 11 Sex y. Hundred of MxherUm {Lord 

H. L. Gas. 62. of), 3 A. & E. 284. 

(n) Bitson, Courts Leet, 66, 67 ; (r) Davidson y. Moaerop, 2 East, 

ScroggB, Courts, 4, 6, 14; 1 Gas. 66; and see JFiUeoeky. Windsor, 3 

& Op. 234. B. & Ad. 43. 

(o) Co. Copyh. s. 31. («) JExeier (Earl of) y. Smith, 

(p) Sex y. Jolife, 2 B. & 0. 64. Carter, 177 ; Itex v. Diekemon, 1 

{q) Rex y. Rowland, 3 B. & Aid. Wms. Saund. 136. 

130; Bex y. Banke^ 3 Buzr. 1462; 



MANORIAL COURTS. 303 

It has been alreadj mentioned that there cannot be a CopyholdeiH* 
oouit-baron without freeholders ; but the name is also given ^^^' 
by oommon usage to the customary court of the copy- 
holders, which concerns the copyholders only and may be ' 
held without free tenants ; and in the same way the word 
"homage" is used to denote the jury of copyholders. The 
following extract from Lord Coke will be found of use in 
distinguishing between the nature of these courts. " The 
court-baron must be held on some part of the land within 
the manor, for if it be held out of the manor it is void : 
unless a lord, being seised of two or three manors, has 
usually time out of mind kept at one of his manors courts 
for all his manors, then by custom such courts are sufficient 
in law. And it is to be understood that this court is of 
two natures : the first is by the common law, and is called 
a court-baron, and of that court the freeholders, being 
suitors, are judges ; the second is a customary court, and 
that doth concern copyholders, and therein is the lord or 
his steward the judge. Now as there can be no court- 
baron without freeholders, so there cannot be this kind of 
customary court without copyholders or customary-holders. 
And as there may be a court-baron of freeholders only 
without copyholders, and then is the steward the registrar, 
BO there may be a customary court of copyholders only 
without freeholders, and then is the lord or his steward the 
judge. And when the court-baron is of this double nature, 
the court-roll contains as well matters appertaining to the 
customary court as to the court-baron " {t), A customary 
court cannot be held out of the manor unless there should 
be a custom to warrant it {u). Since the 31st of December, 
1841, it has been lawful for the lord of any manor, or his 
steward or deputy steward, to hold a customary court for 
the manor, notwithstanding that there are not at the time 
any persons holding lands of the manor by copy of court- 

(0 Go. litt. 68 a; Melwich y. (m) Do9 ^. BoberU t. WhitdkWfZ 

Lut&r, 4 Bep. 26 a. N. & M. 226. 



304 



THE LAW OF COPYHOLDS. 



Judge, &c. in 

ciutomarj 

court. 



Gnstomary 
coiirta for 
inclosores 
from waste. 



roll ; and also notwithstanding the fact that if there are 
copyhold tenants no OQpyholder was present at the court ; 
every court so held is to be deemed for all purposes a good 
and sufficient customary court, subject however to the 
proviso that no proclamation made at it is to affect the 
right or title of any person who is not present, unless notice 
of the making of the proclamation has been duly served 
on him within one month after the holding of the 
court {x). 

The lord is said to be the judge, and chancellor in cases 
of equity, when he sits in the customary court (y). The 
steward in the lord's absence sits as judge to punish 
offences, determine controversies, redress injuries, and the 
like (z) ; but he is also said to be ^' a minister and register 
to enter things into the court-rolls, and in both these to be 
indifferent between the lord and tenants" (a). The free- 
holders fulfil two parts, to set the amoimt of amercements, 
and to return judgments in cases tried in the court-baron, 
and the copyholders are " to inform of offences committed 
against the lord within the manor, and to present such 
things as shall be given in charge by the steward" (6). 
" The bailiff also occupies two parts, that is to say, to 
execute the process and commandments of the court, and to 
return into the court the execution of the same process" (e). 
The bailiff's duty consists in the main of distraining for fines 
and amercements, and where there is the franchise of hold- 
ing a court-leet of impanelling the jury of the leet (d). 

The Copyhold Act of 1841 has so much reduced the 
number of occasions upon which it was necessary to 
summon a court, that this general outHne of the practice 
will probably be found sufficient. But it has been thought 
convenient to enter with some minuteness into the practice 
connected with the special courts at which the consent of 



(a;) 4 & 6 Vict. c. 35, 8. 86. 
(y) Co. Copjli. B. 44. 
(«) Ibid, 8. 46. 
(a) Galthr. Copyh. 64. 



(b) Ibid., 66. 
(fl) Ibid. 

(i) Watk. Copjh. ii. 28, n. ; 
Scriv. CJopyh. 122. 



MANORIAL COURTS. 305 

the homage is taken for inclosures out of the waste, because 
that Act provides that where by the custom of any manor 
the lord is authorised, with the consent of the homage, to 
grant any common or waste lands to be held by copy of 
oourt-roll, nothing contained in the Act is to operate to 
authorise or empower the lord to grant any such common 
or waste lands without the consent of the homage 
assembled at a. customary court held for the manor, and 
that a court which is held for the manor is not to be 
deemed a good and sufficient court for the purpose, unless 
it has been duly summoned and held according to the 
custom of the manor in such cases used and accustomed 
before the passing of the Act, and unless there shall be 
present at such court a sufficient number of persons holding 
lands of the manor by copy of court-roll to constitute 
according to such custom a homage assembled at such 
court (^). It will be remembered, however, that fresh 
grants of the waste as copyhold cannot now be made, 
except with the consent of the Board of Agriculture, and 
that on the allowance of the grant the land is held as in 
common socage (/). 

The steward usually makes a precept to the bailiEE to Notioe 
give notice of the holding of a court : four days' notice "^ 
has been said to be a reasonable time (g), but " it is better," 
says Kitchin, "to give fifteen days' notice"; and in some 
manors it is customary, when the homage is to be asked 
to assent to an inclosure, to give at least three weeks' 
notice (h). Notice is usually fixed on the church-door, or 
in some other public place, and to enforce attendance it 
is necessary to summon the copyholders personally. On 
the assembling of the court, the "style of the court," 
including time, place, nature of the court, and name of the 
steward, is entered on the court-roll, and after proclama- 

(0) 4 & 6 Yiot. 0. 35, B. 91. Gro. Eliz. 363. 

(/) 60 & 61 Vict. 0. 73, 8. 6. (A) Kitch. Jmsd. 11 ; Scriv. 

(jf) Tavemer v. Or<mweU {Lord), Copyh. 6. 

E. X 



306 



THE LAW OP COPYHOLDS. 



Formfttion of 
jnry. 



Charge to 
jurorp. 



tion made the suitors are called, and fines for non- 
attendance imposed, or excuses accepted. 

There does not appear to be any general rule for the 
formation of the juries in customary courts. Eveiy copy- 
holder is bound by his tenure to attend and, if required, 
to be sworn ui)on the homage jury, which is selected by 
the steward of the manor (t). In some manors it is not 
usual to impanel a fresh jury on every occasion of holding 
a court, but to summon the same tenants at each court, 
vacancies in the number of jurors being filled up either at 
the lord's discretion, or by his selection from several 
persons recommended by the remaining jurors (k). Occa- 
sionally too the steward is aided in his selection by the 
permanent foreman of the homage jury. 

A right has been occasionally claimed for the lord to 
summon fresh juries, until he can find one which will 
consent to a customary indosure ; but the better opinion 
is that such a course would be illegal, and that the verdict 
of a packed jury might be upset (/). There is a great 
diversify in the number of tenants required for a full jury. 
In courts-leet the number impanelled is invariably twelve, 
but a much smaller number may be summoned to a court 
where none but tenants can be required to serve (w). 
Thus seven, eight, twelve, or more copyholders may form 
a jury («). 

After the jury has been formed, the jurors are sworn 
and charged by the steward. The charge admonishes 
them to present suitors who make default, the death of 
every tenant and who is heir, and what reliefs, heriots, or 
other profits have accrued, the forfeiture of any tenement 
by waste or alienation, or other means, the subtraction of 



(t) Co. Copyh. 8. 67. 

{k) Open Spaces Sel. Comm. 
(1866), 1 Bep. Qu. 763; Jhid, 2 
Hep. Qu. 6834. 

(/) See Hex y. Hemingtoayy 1 
Barnard. 436. 



(m) Co. Copyh. b. 31. 

\n) Wentuwrtk {Lady) v. Clay^ 
Cas. temp. Emoh, 263; Calthr. 
Copyh. 68; Open Spaces SeL 
Comm. 2 Bep. Qu. 6837. 



MANORIAL COURTS. 307 

any lands or servioes from the lord, enaroaolunent or 
trespass in the demesnes or wastes, inolosiires, or sor- 
Qharges of common, and the like (o). 

As a general rule, the duty of a homage jury is to make DutieB of 
presentments of all things done -within the manor to the i^^"- 
prejudice of the lord or- tenants, and to recommend what- 
ever may appear to be advantageous to the lord and not 
injurious to the tenants. They stand in an intermediate 
position between the lord and the other tenants, being 
bound by their oath to consider the interests of both 
parties. For this reason the rest of the copyholders are 
bound by the verdict of the jury, when a customary 
indosure has been presented as beneficial and allowable {p). 
'^The homage may enquire into encroachments on the 
waste, and may direct indosures to be thrown down, but 
they have no jurisdiction to enquire whether the soil 
belongs to any individual, or whether he has a right of 
common only " (q). 

The homage may by custom have the right of making Homage may 
bye-laws for the regulation of the common, and where J^® ^^^' 
such a custom exists all the tenants will be bound by the 
bye-law without personal notice (r). Such bye-laws cannot 
be extended so as to deprive any commoner of his right (s) ; 
but they may deal with all matters concerning the proper 
regulation of the common, as the draining and fencing of 
the land, the appointment of a common-keeper, the main- 
tenance of the pound, stinting the number of the cattle, 
setting a mark for difltinguishing the oommonerB' cattle 
from strays, dosing the common for a certain time of the 
year, and the like, according to the usage in each case (t). 

(o) See Eitch. Juiifld. 107 ; Jacob, («) Ihid. 

Gooit Keeper, 8th ed. 35. (0 Kitch. Jorifld. 166 ; SorogrgB, 

(p) Arlett V. JEHU, 7 B. & G. Conrta, 111, 136; Scriv. Copjh. 

346, 868. 625 ; and see Fox y. Amhurtt, L. 

(q) Richards ▼. Bamtt, 10 B. & R. 20 Eq. 403 ; Hall v. Byron, 4 

G. 667, 662, per LitUedale, J. Gh. Div. 667 ; Auttin y. Amhurst, 

(r) James y. Tutney, Cro. Oar. 7 Oh. Div. 689. 
497. 

x2 



308 THE LAW OF COPYHOLDS. 

In the same way a manorial bje-law may regulate the 
amount of wood or other produce of the waste which is to 
be used by the commoners, as by providing that persons 
of certain trades shall not be allowed to take more fuel 
than the other householders, and the like. But such bje- 
lawB do not bind strangers, and in the absence of a custom 
they cannot have force, except as an agreement made 
between the tenants who have consented to the rule (u). 
Whether It is said to be the better opinion that in all cases the 

bennaiiiinoiu. jnry must find an unanimous verdict, as is also the practice 
inmost of the manors where customary indosL are 
allowed. There are cases, however, which show that the 
point is not settled, and the only general rule which can 
be safely followed is that the special custom of each manor 
must be strictly observed. Thus in the manor of Stepney 
it is stated to have been the custom that any seven copy- 
holders might present a proposed indosure as beneficial, 
and that their presentment should be confirmed or rejected 
by the major part of the homage at the next court (z). 
Again, it has been decided that if thirteen copyholders be 
sworn on the juiy in a customary court and twelve agree 
to a verdict, the thirteenth dissenting, it is a good verdict 
without his assent ; and it was held to be doubtful what 
would be the effect of a similar dissent of one juror out of 
twelve, " for it is not a full jury " (y). 
Appointment The steward of a manor may be appointed by parol, 
*^ * "^ and a steward so appointed will hold office until he is 

discharged (z) ; but the appointment is usually by deed ; 
and a deed will be required if the stewardship is granted 
for life (a). In crown manors it is said that he ought to 
have his appointment by deed or letters patent (b). The 

(u) Erh&ry ▼. Lattony 1 Leon. {z) DownY, Hopkins, ^'B^,29'b\ 

190. Lady EiderrftU Case, 4 Bep. 30 b. 

{x) Wentworth [Lady) y. Clay, (a) Bartlett ▼. Doumss, 3 B. ft 0. 

Cas. temp. Finoh, 263. 616. 

(y) Galthr. Gopyh. 53; and {b) See Harris y. Jay, 4 Bep. 

see Thirveton y. Collier, Chy. Gas. 30 a. 
48. 



MANORIAL COURTS. 309 

office is forfeited by neglect or misconduct, or in the words How office 
of Lord Coke by abuser, non-user, or refuser ; by abuser, f|J3eited. 
when he destroys the court-rolls, takes a bribe, or uses 
partiality in any case depending before him ; by non-user, 
when he neglects to hold a court, and thereby prejudices 
the lord ; by refuser, when he fails to keep a court after 
request by the lord, even although the lord is " nothing 
damnified" by the failure (c). "The law,*' as he also 
said, " is not very curious in examiniog the imperfections 
of the steward's person, nor the unlawfulness of his 
authority, for be he an infant, or non compos mentis^ an 
idiot, or lunatic, &c., yet what things soever he per- 
f ormeth as incident to his place can never be avoided for 
any such disability, because he performeth them as a 
judge, or at least as custom's instrument; and for his 
authority though it prove but counterfeit if it come to an 
exact trial, yet if in appearance or outward show it seemeth 
current that is sufficient. As if I grant the stewardship 
of my manor of Dale by patent, and in the patentee's 
absence a stranger by my appointment keepeth court, this 
is authentical. If the grant of a stewardship be made to 
one and for some fault or defect in the grant it is avoid- 
able, yet courts kept by him before the avoidance shall 
stand in force, and whatsoever he did as steward is ever 
unavoidable; as if a corporation retcdneth a steward by 
parol, and he keepeth a court, &c., these acts being judicial 
shaU ever stand for current, though his authority be 
grounded upon a wrong foundation, for a corporation 
cannot institute any such office without writing, and so if 
the King's auditor or receiver retain a steward by parol, 
he may lawfully execute any judicial act, but things which 
he performeth as custom's instrument and not as judge, 
such as voluntary admittances neither in the retainer by 
the corporation, nor in the retainer by the King's officers, 
shall any whit bind " (d). 

{e) Co. Copyh. s. 45. (d) Ibid. 



310 THE LAW OF COPYHOLDS. 

.^ointment Where a steward is appointed bj deed, he is usnallj 
Bbdi^^ empowered to appoint a deputy, and unless the deed pre- 
scribes the form and conditions of the appointment, such 
deputy may be appointed by deed or parol. Lord Coke 
mentions a doubt whether a steward can appoint a deputy 
where his appointment does not give him any such 
authority and remarks that as the office is one of know- 
ledge, trust, and discretion, the appointment of a deputy 
could not be made unless in cases of necessity {e)y but it 
seems that there may be a custom for the steward to 
appoint a deputy (/) ; and the better opinion now appears 
to be that a steward may appoint a deputy unless the 
terms of his appointment preclude him {g). There seems 
also to be no doubt that where a person is acting de facto 
as steward, all ministerial acts done by him will be deemed 
sufficient, even although there is a defect in his autho- 
rity (A). Further, the word " steward " as defined in the 
Copyhold Act, 1841, includes the person or persons for the 
time being filling the character of steward, or acting in 
that capacity, whether he shall be rightfully or lawfully 
entitled to fill such character and to act in such capacity or 
not, and includes also the clerk of the manor, where such 
an office exists (i) ; and the word bears a similar interpreta- 
tion when it is used in the subsequent Copyhold Acts (k). 
In a case relating to the validity of a surrender taken out 
of court of copyhold lands belonging to a married woman, 
who had in accordance with the custom to be separately 
examined, it was held that such a surrender might weU be 
taken by a deputy steward who was an infant, if he was 
capable of performing the duties of the office (/) ; and it 
has also been decided that a person who was appointed 

{$) Oo.Copyh. 8. 46; aeeJEddletton (A) Parker ▼. Kett, 12 Mod. 467, 

V. Chttiru, 16 Jur. 790. 470. 

(/) See SuTffMs y. Ibtter, 1 Leon. (i) 4 & 6 Viot. o. 86, s. 102. 

289; /9. a, 4 Leon. 215. (A;) 16 & 16 Vict. c. 61, s. 62; 

(ff) Watk. Oopyh. ii. 28; Soriv. 60 & 61 Viot. c. 73, b. 49. 

Oopyh. 119. (/) EddUiUm y. CoUint, 16 Jar. 

790. 



MANORIAL COTTRTS. 311 

deputy steward for the purpose of taking the admittanoe 
of a tenant might as suoh deputy steward, in the absenoe 
of any express provision to the contrary, receive the 
money which the tenant was boimd to pay on admit- 
tanoe (m). 

As a general role, the steward represents the lord in all Steward 
matters affecting the estates of the copyholders ; but the SST^ 
steward cannot without express authority do any act 
affecting the lord's estate in his land. Without suoh 
authority, he could not have made a customary inclosure 
of a new copyhold (»). It should, however, be remembered 
that by the customs of particular manors the stewards were 
expressly authorised to make such grants. Thus in Boukott 
V. Winmill {o) it was stated to be the custom for the lord 
to grant parcels of the waste with the consent of the 
homage, by the hands of his steward, to any person willing 
to take the same, the land to be held of the lord by copy of 
court-roll at the will of the lord. With regard to enfran- 
chisements under the Copyhold Acts, it is expressly pro- 
vided that imless and until the lord has given written 
notice to his tenant and to the Board of Agriculture that 
he intends to act for himseU or that he has appointed the 
person specified in the notice to act for him, the tenant and 
the Board of Agriculture may treat his steward as his 
agent for receipt of notices, making of agreements, and all 
other matters relating to enfranchisement, and that in all 
matters of procedure the steward shall be deemed to repre- 
sent the lord ; but a steward has not power to consent on 
behaU of the lord to dealings with the various rights 
which are enumerated in section 48 of the Copyhold Act, 
1862, as amended by the Copyhold Act, 1887 {p). 

Besides his duly of presiding in the manorial courts and DutLes of 
of doing all necessary ministerial acts in respect of the ®^^"^- 

(w) Bridgu ▼. Garrett^ L. B. 6 170. 

0. P. 461. (o) 2 Camp. 261. 

(n) See case oonoerxiing manor of (p) 50 & 51 Yiot. o. 78, b. 33. 
Hampstead (Midd.), 1 Cas. k Op. 



312 THE LAW OF CX)PYHOLDS. 

copyholders' estates, the steward, as already mentioned (^), 
has power, under the Copyhold Act, 1841, to hold ooxirtsin 
the absence of the tenants, to grant copyholds at any time 
and place for such estates and to such persons as he may 
be authorised or empowered to grant the same, to admit 
any person entitled to a copyhold withoul holding a court, 
and, when empowered by the lord, to licence tenants to 
aliene their tenements in parcels (r). On every admittance 
or enrolment of a tenant teiking place after the 31st of 
December, 1887, the steward is bound without any charge 
beyond the fee for admission or enrolment, to give to the 
tenant who has been admitted or enrolled a notice inform- 
ing him that if he desires to enfranchise his land, he is 
entitled to do so upon paying the lord's compensation and 
the steward's fees, and that the lord's compensation may 
be fixed either by agreement between the lord and tenant, 
or by any valuer appointed by them or through the agency 
of the Board of Agriculture to whom the tenant may make 
application, if he thinks fit, to effect the enfranchisement of 
his land («). It has been held to be a good custom in a 
manor, that the steward or his deputy should have the 
right of preparing aU the surrenders of copyholds within 
the manor for a fixed fee (t). 
Steward The Stamp Acft, 1891, re-enacting and consolidating the 

^Te^outdDly provisions contained in eaxUer enactments rekting to 
Btempod stamp duties, provides that the steward of every manor is, 

ooSt-roU. within four months from the day on which any surrender 
or grant is made in court, to make out a duly stamped 

■ 

copy of court-roll of such surrender or grant, and to have 
the same ready for delivery to the person entitled, and in 
default of so doing he is liable to a fine of 50/. and also to 
answer for the duty payable in respect of the copy of 

'(q) Ante, p. 303. in the Appendix. 

(r) 4 & 6 Viot. 0. 36, bb, 86—88, {t) Sex ▼. Biffffe, 2 B. & Aid. 

92. 550 ; lUff, y. Bishop^e Stoke Manor 

(») 60 & 61 Viot. o. 73, s. 1. (Zorrf o/), 8 Dowl. 608. 
For the form of notice, see the Act 



MANORIAL COURTS. 313 

ooTirt-roll (u). The steward is also bound, under a penalty 
of 50/., to refuse to accept in court any surrender or to 
make in court any grant until a note has been delivered 
to him stating all the facts and circumstances affecting the 
liability to duty of the copy of court-roll of any such sur- 
render or grant, or the amount of duty with which any 
such copy of court-roll is chargeable ; and he is also bound 
under the like penalty to refuse to enter on the court-rolls, 
or accept any presentment of, or admit any person to be 
tenant under or by virtue of, any surrender or grant made 
out of court or any deed which is not duly stamped (x). 

It appears to be a proper course for the steward to note Steward 
proceedings in court in a minute-book, which he should mhiute-^k. 
keep to facilitate proof of the transactions, and for such 
proceedings to be entered at length upon the court-rolls or 
record-book by a copy of which the tenant is said to 
hold (y). Although the tenant is not obliged to take a 
copy (2), there is no doubt that he can compel the steward 
to make an entry in regular form (a) ; for it is the duty of 
the steward of a manor to deliver to the tenants as part of 
their title copies of the court-rolls (b). 

The steward's duty is to keep the court-rolls in such a Ajb to entries 
way as to show clearly the title to every copyhold tone- ^^ oourt-rollfl. 
ment, taking care that the descriptions of the parcels are 
clear and accurate, and that the admittances, surrenders, 
and fines, are entered for each tenement separately, and 
when a tenement becomes parcelled out into different 
divisions, each parcel during the division is a separate 
tenement, and must be treated as such until a reunion 
takes place (c). It is not necessary for the steward to 
specify the uses of a surrender on the court-rolls, it being 
sufficient if he makes an indorsement of the uses on the 

(tf) 64 & 65 Yiot. 0. 39, 8. 67. (0) Watk. Gopyh. ii. 44. 

(x) Ihid, 8. 66. {b) AppUUm y. Brayhrook (Lord); 

($r) Watk. Copyh. ii. 43. 6 M. & S. 34, 88, j^Holzoyd, J. 
(g) Doe d. BenningUm ▼. EaU^ 16 (0) Traheme ▼. Gardner ^ 6 E. & 

East, 208, 209. B. 913. 



814 THE LAW OF GOPTHOLDS. 

surrender (d). The Court will, if neoessaiy, reform an 
entry on the eoxirt-rollB, but in saoh a case the lord must 
either be a party to the action or oonsent to such order as 
the Court shall think fit to make ; and accordingly where 
the lord consented to the order, the Court decreed that a 
surrender and admission on the court-rolls, which gave an 
interest to the wife of a mortgagor in fraud of the mort- 
gagee, should be reformed (e). 
Gustodj of With regard to the custody of the court-rolls, the general 

oonrt-io . j^^ seems to be that the steward is entitled to the posses- 
'^ ** ^'7/X y^/ sion of the court-rolls, as he has certain duties to perform 

which he cannot properly discharge without possession of 
the rolls (/), and for the neglect of which he would be 
responsible. But as the lord is, in respect of the court- 
roUs, '^a trustee and guardian of the evidence of the 
/^2S. /^^'/ tenants' rights " (^), it seems that the steward is not entitled 

to hold the rolls as against the lord, and if there is proof 
of any improper conduct on the part of the steward, the 
Courts will order the rolls to be delivered to the lord (A), 
but if there is no suggestion of misconduct, the Courts will 
not deprive the steward of the custody (t). 
Inspection of But although the steward keeps the court-rolls to enable 
oonrt-roUfl. j^j^^ ^^ perform the duties incumbent on him, he must per- 
mit every person interested to inspect so much of them as 
relates to his estate or interest, whether an action be pend- 
ing or not {k). It is provided by the Rules of the Supreme 
Court, 1883, that an order upon the lord of a manor to 
allow the usual limited inspection of the court-rolls maybe 
made on the application of a copyhold tenant supported 
by an affidavit that he has applied for inspection and that 

{d) Car y. Mlisonf 3 Atk. 73. (A) Sawes y. Itawety 7 Sim. 624. 

(e) EUtm y. Wood, 2 Myl. & K (») Windham y. Oiubiiei, 40 L. J. 

678. N. S. Gh. 605. 

(/) Windham -7. Cfittbilei, 40 Ij, J, (Ar) Itex y. Zuea», 10 East, 235; 

N. 8. Ch. 505. Mex y. Towsr, 4 M. & 8. 162 ; see 

(^) Bex y. Tower, 4 M. ft S. Bex y. Merchant Tailors* Co, (JfM- 

162, 163, per Lord EUenborongh, ter, ^e. of), 2 B. ft Ad. 115. 
0. J. 



MANORIAL COURTS. 316 

it has been refused (/). This role is not striotly confined 
to oases where the applicant is a copyhold tenant, but will 
apply if he has a primd facie title to or is otherwise 
interested in copyhold property ; thus inspection of the 
court-roUs will be allowed to the devisee of a rent out of a 
copyhold {m), or to a person otherwise interested in the in- 
spection, as a freehold tenant claiming rights of common 
on the waste (n), though, perhaps, the freehold tenant 
should show that some action is depending (o). But in the 
case of Owen v. Wynn {p)y where the plaintiffs claimed to 
be owners in fee simple of certain land, denying that they 
were tenants of a manor, of which the defendant was lord 
and of which he alleged them to be freehold tenants 
having only customary rights over the land in question, it 
was held that the plaintiffs were not entitled to inspection 
of the manorial court-rolls and documents, as they did not 
claim to be tenants of the manor. In a case, however, 
where a bill was filed to establish a right of common of 
vicinage, the existence of which was denied, it was held 
that the plaintiff was entitled to the production of all 
documents and records relating to the court-baron of the 
manor, and all accounts and memoranda relating to the 
taking of gravel, &c. from the waste, with a list of the 
documents relating to the title of the lord which did not 
affect the matter of the suit (q). 

The rules relating to inspection of court-rolls apply 
equally to the steward's minute-books and other books and 
records of the manor (r). 

An enfranchised copyholder as such has no right to inspection 
inspect the court-rolls, because by the enfranchisement his ^^L^^^' 
tenement becomes severed from the manor; but if the 

(/) Old. XXXI. r. 19. L. E. 3 Eq. 683. 

(m) Ex parU Samea, 2 Bowl. (p) 9 Ch. Diy. 29. 

N. 8. 20. (q) Minet ▼. Morgan, L. B. 11 

(«) AddingUm y. Clode, 2 W. Bl. Eq. 284. 

1030 ; ExparU Hutt, 7 Dowl. 690. (r) Folkard v. Hmet, 2 W. Bl, 

(o) Mm y. Allgood, 7 T. R. 746 ; 1061. 
JTarrick y. Qttefn'a College, Oxford, 



316 



THE LAW OF COPYHOLDS. 



GiiBtody of 
oourt-roUs 
'wben all 
lands haye 
been enfran- 
ohiBed. 



eiifrancliisemeiit has taken place under the Copyhold Acts, 
the owner of the enfranchised lands now has access to 
the court-rolls and may have copies thereof upon pay- 
ment of a reasonable sum for the same, and a scale of 
reasonable fees for such inspection and for taking such 
copies may be fixed by the Board of Agriculture («). 

It may be mentioned here that by the Copyhold Act, 
1852, provisions were made enabling the lord of acny 
manor, whereof all the lands had been enfranchised, to 
hand over, if he thought fit, aU the court-rolls of the 
manor to the Copyhold Commissioners (now represented 
by the Board of Agriculture), and for securing to the 
persons seised of or interested in the enfranchised lands 
access to and inspection of the court-rolls on payment of 
such reasonable fees as the Commissioners might think 
proper (f). These provisions have, however, been enlarged 
by sect. 48 of the Copyhold Act, 1887, which empowers 
the lord, or any other person having custody of the court- 
rolls and manorial records with consent of the lord, to 
hand over, if he thinks fit, aU or any of the court-roUs and 
manorial records to the Master of the Bolls, when all the 
lands which are held of or are parcel of the manor have 
been enfranchised; and the same section empowers the 
Master of the EoUs to make from time to time roles 
respecting the manner in which and the times at which 
inspection of such court-rolls and manorial records may 
be made, and office copies or certified extracts therefrom 
obtained, and as to the amount and mode of payment of 
such reasonable fees as he may fix for such office copies 
and certified extracts. The Act of 1887 also enabled the 
Commissioners to hand over to the Master of the Bolls all 
or any manorial court-rolls or records of which they might 
have obtained the custody imder the provisions of the 
earlier Copyhold Acts (w). 



(•) 16 & 16 Vict. c. 51, 8. 20. 
(0 Ibid. B. 21. 



(u) 50 & 51 Yiot. c. 73, b. 48. 



MANORIAL COURTS. 317 

The amount of the steward's fees must in each ease be Stewaxd's 
regulated by the custom of the manor, or, in the absence of ^^* 
a custom, either by the amoimt of work and labour done 
or by special agreement. Thus where a person was 
admitted to several copyhold tenements at one time, the 
steward was held not to be entitled as a matter of general 
right to fuU fees on each admission separately, and it was 
said by the Court that as there was no particular stipulation 
for the price, the sum due must be determined either by 
the custom of the manor or on a qtuintum meruit. ^^ In 
this case there is no custom of the manor in evidence; 
therefore the plaintiff's right must stand upon a quantum 
meruit ^^ {x). The following extracts from the case of 
Traheme v. Gardner {y) will serve to show the principles 
on which the Courts have held that stewards' fees should 
be assessed. A tenant dying seised of four separate copy- 
hold tenements devised them to the plaintifis as joint- 
tenants, who claimed to be admitted to all the tenements, 
at first by a single admission, and afterwards by two 
admissions, inasmuch as two of the copyholds had been 
originally part of one tenement held by a former tenant, 
and the other two had similarly been held as one tenement 
by another former tenant. The steward refused to make 
either of these admissions, and required that there should 
be four separate admissions and the payment of four 
separate sets of fines on each. He also claimed a fee in 
respect of the abolition of a surrender to the use of a will. 
In order to avoid a forfeiture, the plaintiffs took four 
separate admissions and were admitted. Four full sets of 
fees with four separate stamps and four sums of six 
shillings and eight pence, in respect of the admission being 
of two joint-tenants, were claimed by the steward. These 
fees were paid under a written protest against the right to 
more than two admissions, and against the compensation- 
Co;) Evereai y. Glyn, 6 Taunt. {if) 26 L. J. Q. B. N. S. 201 ; 
426, 430. 8. C, 6 E. ft B. 913. 



318 THE LAW OF COPYHOLDS. 

fee for a Bmrender to the use of the will, and the fee in 
respect of the admission of joint-tenants. There was no 
oostom proved in the manor that there should be only one 
admission on the claim of one person to be admitted to 
several separate tenements, nor any custom establishing 
the amount of the steward's fees upon an admission to 
several tenements or his right to claim a fee in respect of 
the admission of a joint-tenant. 

The points for the decision of the court were (1) the 
right of the steward of the manor to insist on the general 
devisee of a deceased copyholder being admitted as many 
times and paying as many entire sets of court-fees as the 
number of copyhold tenements or parts of tenements of 
which the testator died seised ; (2) the right of the steward 
to require payment of as many admission stamps as 
there were tenements of which the testator died seised ; 
(3) whether (assuming the right to separate admissions to 
be established) the steward, after a reunion in one person 
of a tenement which had been previously surrendered to 
different persons, could insist on a separate admission to 
each such once distinct portion ; (4) assuming the steward 
to be right in requiring four admissions in the circum- 
stances, to what fees was he entitled ; (5) the right of the 
steward to charge £2 16«. lOd. as a fee consequent on the 
abolition of a surrender to the use of a will ; (6) the right 
of the steward to charge Gs. 8d. for the admission of each 
joint-tenant beyond the first. It was held that the lord 
was entitled to require an admittance in respect of each of 
the tenements, and that four sets of fees and four stamps 
were payable : but that there was no ground for the claim 
by the steward of a separate fee in respect of the admis- 
sion of each joint-tenant. And it was held also that the 
steward was not entitled to be paid a full set of fees in 
respect of each tenement, but only a quantum meruit for 
his additional labour, and that the compensation to which 
he was entitled for the abolition of a surrender to the use 
of the will was also to be ascertained upon a quantum 



MANORIAL COURTS. 319 

meruit; and further, that as the payments made to the 
steward oould not be considered as voluntary, the plaintiffs 
were entitled to reoover back the fee in respect of the 
admission of a joint-tenant and what the Master should 
find that the steward was not entitled to, upon the ques- 
tion of a quantum meruit. 

Lord Campbell in giving judgment said that the Court 
was not to be supposed to sanction the practice which had 
prevailed in the manor, which appeared to him to be an 
instance of a manor kept up for the sake of obtaining fees, 
and that as regarded the quantum of fees, there would be 
a reference to the Master to settle the amount. ^' We are 
now," he said, "to lay down principles by which the 
rights of the parties must be governed. In so doing, we 
must take care that no injury is done either to the lord or 
to the steward on the one hand, or to the tenants on the 
other. It is important to the tenant that the court-roll 
should be regularly kept, so as to show a perfect history 
of the title of each tenement. . . . Now, the first question 
is whether the action can be maintained as to certain 
payments which are said to have been voluntarily made, 
and I am of opinion that the action will lie for every one 
of the payments which have been exacted and are not 
warranted by the custom of the manor. It would be 
strange if the plaintiff, who from the first strenuously 
resisted the payment of the fees demanded and claimed to 
be admitted to the property by one admission, should be 
held to have voluntarily paid the fees exacted and paid, and 
though in the written protest there are some words which 
appear to limit it to the payments beyond two admittances, 
yet the plaintiff verbally protested against the whole, and 
I think the written protest cannot be considered as doing 
away with the verbal protest so as to make the other 
payments voluntary, and that the plaintiff is entitled to 
reoover all that the defendants cannot show that they are 
entitled to receive. Then the question is, whether the lord 
was bound to admit the plaintiffs to all the customary 



820 THE LAW OF COPYHOLDS. 

tenements by one admittance and npon payment of one set 
of fees. I answer that he was not so bound." 

^^ In the absence of a special custom, by the general law 
of copyhold tenure, there must be a separate admittance 
to each separate tenement, whether the tenements have 
always been separate, or having been one tenement have 
become separate. . . . Whether these admittances are 
made on the same piece of paper or not is immaterial : 
they must be made in such manner as to enure as separate 
admittances, so that the court-roll and the copy also may 
show the* title to each." 

" The next question relates to the steward's fees, and 
upon that I am of opinion that no customary fee has been 
established in this manor : the fee of ISs. 4:d. is clearly 
rank : it is impossible to suppose such a fee payable in the 
time of Eichard the First, and in modem times it is clear 
that the fees in this manor have yaried and have risen to 
an excess which must be repressed. But, there being no 
eustomaiy fee to the steward, the tenant must pay a 
reasonable fee, the amount of which must be settled by the 
Master." 

"In Everest v. Olyn (2) the Court held that fees must be 
governed by what is the proper sum on a quantum meruit, 
and that the steward upon the a,dmission of one person -to 
several tenements was not entitled to charge the same fees 
upon the second and subsequent admissions as upon the 
first admission, because the labour is not so great. At the 
same time there would be clearly more labour Imposed 
upon the steward where the document contained admissions . 
to twenty different tenements than upon an admission to a 
single tenement ; and it would be unreasonable to say he 
was entitled to the same fee, and the only rule which can 
be laid down, there being no customary fee proved, is that 
the steward shall be paid upon a quantum meruit. The 
next question, which relates to compensation to the steward 

(t) 6 Taunt. 425. 



MANORIAL COURTS. 321 

in oonsequence of the abolition of surrenders to the use of 
a will, must be answered upon the same principle. The 
legislature has carefully preserved existing rights, and the 
steward is clearly entitled to compensation, which must 
have reference to the supposed amount of labour which 
would have fallen upon him if the surrender to the use of 
a will had not been aboUshed. There might have been a 
surrender to the use of the will either in court or out of 
court and afterwards to be presented in court and enrolled: 
but it appears to me that the labour would have been 
almost the same in either case, and the officer of this court 
will therefore have no difficulty in settling the amount and 
laying down a uniform rule on the subject. The remain- 
ing demand of the steward is for a separate fee upon the 
admission of each joint-tenant to the same tenement, and I 
am of opinion that he is not entitled to make that demand. 
No such claim is made out by the custom, and there is no 
rule of copyhold law giving him any such right. There is 
no material addition of labour upon such an admission, 
and I think the fee demanded and paid in that respect is 
recoverable in this action." 

With reference to the decision that IQs. 4d. would be an Beasonable 
unreasonable amount to claim as a customary fee, it will be ^^' 
remembered tiiat in the case of a marriage-fee of 13$. it 
was held in the case of Bryant v. Foot {a) that the amount 
was so great as to lead to the irresistible inference that it 
could not have existed in point of fact in the time of 
Bichard I., and that this inference was in itself sufficient 
to rebut the presumption, arising from modem usage, that 
the fee had an immemorial legal existence. A custom that 
every free tenant should for default of appearance at the 
leet pay seven shillings to the steward for the use of the 
lord has also been held to be unreasonable, for '^ it being 
in time immemorial, seven shillings is too great a sum to 
pay for such a default " (6). 

(a) L. B. 2 Q. B. 161 ; and see (h) MorganU Gcue, 8 Mod. 296, 

Lawrence v. Hiteh, ibid. 184, n. 302. See, as to reasonable fees of 

E. T 



322 THE LAW OF COPYHOLDS. 

Fees where It will be remembered that coparoeners are entitled to be 
raidividedL admitted as one heir, and therefore on one set of fees (c), 

and that tenants in common aliening their separate undi- 
vided shares, even by a conveyance to one purchaser of the 
whole, are treated as having separate tenements, and there- 
fore that a purchaser, before the remiion of the imdivided 
shares can take place, must have separate admittances and 
Fees in case pay Separate sets of fees {d). The following case refers to 
nnder sevCTai ^® ^^^ whioh a steward may claim upon alienation of a 
idtlea. copyhold allotment which has been made in respect of 

lands held imder different titles. A copyholder was owner 
of sixteen tenements held by as many separate copies of 
court-roll and by sixteen separate quit- rents : and he had 
been admitted to these tenements at five different times, 
and by five distinct titles. By a Local Act which directed 
commissioners to allot the waste lands among the owners 
in proportion to their rights and interests it was declared 
that the allotted lands should continue to be held by the 
owners under the tenures, rents, customs, and services as 
the lands in respect of which they were allotted would have 
been held if the Act had not passed, and that where the 
lands were held under different titles or for different 
estates the commissioners should distinguish the lands held 
for each of such estates and titles and set out the allot* 
ments accordingly. The conunissioners allotted to the 
tenant in respect of his sixteen copyhold tenements, five 
pieces of land amounting to forty-nine acres, but did not 
distinguish in respect of which of the tenements or of 
what particular estates the five pieces were allotted. The 
tenant afterwards surrendered one of the allotments to the 
use of a purchaser who was duly admitted to the same. 
By the custom of the manor, where any person was 

yarying amount, Shepherd v. Paj/net two opinions in 1 Gas. & Op. 227, 230. 

12 C. B. N. S. 414; and as to a (e) Rex y. JBcmall Manor {Lord 

steward's ciistomaij fee in a great of), 3 B. & C. 173. 

yarietj of instances, see Complete (d) Seg. y. Eton College^ 8 Q. B. 

Copyholder, ed. 1735, 521, 522; and 526. 



MANORIAL OOUKTS. 828 

admitted in severalty to a part of a copyhold tenement, 
the steward of the manor was entitled upon such admission 
to the same amount of fees as if such person had been 
admitted to the whole of such tenement. In an action by 
the steward to recover sixteen fees in respect of the admis- 
sion to the purchased allotment it was held that it must 
be considered to have been allotted in respect of a portion 
of each of the sixteen former tenements, and that therefore 
the steward was entitled to recover sixteen fees {e). It 
may be mentioned, however, that the Board of Agriculture 
can now amend awards under Local Acts which are defec- 
tive in distinguishing the several lands in respect of which 
an allotment is made (/). 

When copyholds are taken by a company under the pro- Fees when 
visions of the Lands Clauses Consolidation Act, 1845 {g)j J^^^aer 
the steward of the manor is entitled under the 95th section Lands Claiiaes 
of that Act only to the fee payable in respect of a surren- Act, 1846. 
der, and not to another fee for admittance, even although 
he may be usually entitled by the custom of the manor to 
one fee upon surrender and another upon admittance (A). 

The Copyhold Act, 1887, provides (t) that upon the ad- Steward to 
mittance or enrolment of any tenant after 31st December, M^to^nfem- 
1887, the steward of the manor is to give, without charge, ohisemrat to 
to the tenant so admitted or enrolled a notice in the form on admittance 
prescribed by the Act, informing him that if he so desires ^^*^^^* ^^' 
he may enfranchise the land and convert it into freehold 
upon certain conditions; and if the steward neglects to 
serve such notice, he is not entitled to any fee for the 
admittance or enrolment of the tenant. 

(e) Evans v. Upther, 16 M. & (^) 8 Vict. c. 18. 

W. 675. (A) Cooper y. Norfolk Sail Co., 3 

(/) 8 & 9 Vict. 0. 118, s. 162; Ex. 646. 

62 & 68 Vict. c. 80. (i) 60 & 61 Vict. o. 73, s. 1. 



y2 



324 THE LAW OP COPYHOLDS. 



CHAPTER X. 

EVIDENCE. 

Evidence of In this chapter it is proposed to consider some of the rules 
tenure. ^^ evidence relating to the matters discussed in the earlier 

chapters. As to what constitutes a copyhold tenure, it 
will be remembered that the proper criterion of a customary 
tenure is to ascertain whether its alienation is complete 
without any interference by the lord (a). The land is 
freehold if no such interference is necessary, even though 
there may be an obligation on the tenant to be admitted 
subsequently (b). If admittance, entry on a roll, or the 
like, be necessary for a complete alienation, it will be 
copyhold, although conveyed by a lease and release or 
grant or other assurance proper to freeholds (c) ; but if 
the copyhold has been severed from the manor it will pass 
by an ordinary assurance {d). Sometimes it is difficult to 
distinguish copyholds of a certain kind from estates at 
wiU or tenancies from year to year, as where the names 
of the tenants are entered in a book or roU, and the 
steward decides whether he shall admit the alienee or not. 
In some instances evidence as to the tenure will be afforded 
by decisions in parliamentary registration cases and similar 
proceedings when the nature of the tenancy has come into 
dispute («). 
Tenure in It is sometimes necessary to ascertain whether lands are 

free alma. 

{a) Ante, c. i. 1 C. B. 940 ; rortland {Ihtke qf) v. 

(b) ra»svngham y. Fitty, 17 0. B. Sill, L. B. 2 Eq. 765. 

299. («0 PhUlips V. BaU, 6 C. B. N. S. 

{c) Doe d. Reay v. HtmtingUm, 4 811. 

East, 271 ; Doe d. Cook ▼. Danvere, {e) Oarhutt ▼. 2V«?or,' 16 0. B. 

7 East, 299; Thompson v. Sardinge, N. S. 660. 



EVIDBNCB. 



325 



or have been held by a freehold tenure other than common 
Booage. It will be of use to notice that the tenure of 
frankalmoigne or free alms was free from all temporal 
service and is inconsistent with the. rendering of fealty or 
rent(/). Since the Eeformation the uncertain spiritual 
services due in frankalmoigne have in some cases been 
changed to fixed religious and charitable services by au- 
thority of Parliament, '^ but the tenure remains as it was 
before" (g). Formerly most of the ancient monasteries 
and religious houses held many of their lands by this 
tenure, and at the present day many ecclesiastical and 
charitable corporations hold by similar services, for the 
tenure was not affected by the Statute 12 Car. 11. c. 24. 
But since the Statute Quia Emptorea no one save the 
Grown could grant lands in frankalmoigne (A). 

A tenure in ancient demesne is proved by the mention Tenure in 
of the manor, of which the lands are held, in Domesday ^^^^ 
Book under the title of Terra Regis {%). This will be 
shown by an office copy of the entry (J). The conversion 
of the tenure to ^^ frank-fee" or common socage was 
formerly effected by a fine or recoveiy transacted in one 
of the superior courts, but the lord might at any time 
afterwards bring a writ of deceit and reverse such fine or 
recovery, upon which the old tenure revived. Until this 
took place the lands were unmarketable, imless the lord 
released his rights. It often happened that there was 
nothing on the abstract of title to show that the land was 
ancient demesne, and the result was that in many cases by 
no fault of the owner the land became nearly valueless {k). 



if) Co. Litt. 94 b, 95 a. 

{ff) Co. Litt. 95 b. 

(A) Litt. B. 140. 

(i) See Yearb. Mioh. 40 Edw. ni. 
lo. 45 a, pi. 29 ; Orifin ▼. Palmer^ 
1 Brownl. 43 ; Eoldage v. Jffodffet, 1 
Lev. 106; Baker y. Wieh, 1 Salk. 
56 ; SaumUrs y. JTeleh, dted ibid. 57 ; 
2)09 d. Butt ▼. Boe, 2 Burr. 1046. 



t;) 1 & 2 Viot. 0. 94, 88. 12, 18. 
The old method of oonaulting 
Domesday Book is desoiibed in a 
note to Hale's Common Law, c. 5. 

{k) B. P. Comm. 1 Rep. 28, 29. 
The -writ of deceit was abolished 
by3&4Wm. IV.C.27, s. 86, and 
3 & 4 Will. IV. 0. 74, 8. 6. 



326 



THK LAW OF COPYHOLDS. 



Tenure in 
burgage. 



Tenure in 
gayeUdnd. 



The difficulty was removed by the Fines and BeooyerieB 
Act, 1833 (/), which in this case had a retrospectiye effect: 
and by the same Act it was provided that the original 
tenure should be restored in all cases where the tenant 
should have acknowledged or recognised the tenure within 
the twenty years preceding January 1st, 1834 (m). If a 
title was stated to be of this tenure, and all fines and reco- 
veries appeared to have been transacted in the manor court, 
it was never the practice to require the official proof of the 
tenure (n). It should perhaps be noticed that a doubt has 
been expressed whether lands of this tenure are within the 
Statute 1 & 2 Yict. c. 110, relating to judgment debts (o), 
but the words of the Statute appear to be wide enough to 
cover every tenure. 

As to tenure in burgage, which it may be necessary to 
prove in cases concerned with a descent in borough-english, 
customary dower, or other customary incidents, it should 
be remembered that the customs of this tenure cannot be 
set up outside an ancient borough (77), even if the tenure 
is stated in letters-patent or elsewhere to be "in free 
burgage" (?). 

With regard to gavelkind lands, the presumption is that 
land in Kent is of that local tenure until the contrary is 
proved (r). It may however be shown to have been dis- 
gaveUed, or never to have been of the nature of gavelkind. 
The Acts for disgavelling lands in Kent affected the lands 
of nearly seventy of the principal land-owners, whose 
names are given in the Acts but without schedules of the 
lands affected (a). To prove that a particular estate was 
within one of these Acts it is necessary to show that the 



(/) 3 & 4 WiU. 0. 74, fl8. 4, 6. 

(m) Ibid, 8. 6. 

(«) GoveniaT', Convey. Eyid. 170 ; 
Cfreen y. Proude, 1 Mod. 117. 

{0) P«-Shadwell, V.-O., in Harrit 
Y. DavUonf 16 Sim. 128, 133. 

{p) Co. Litt. 110 b. 

ig) May y. Strwt, Cro. Eliz. 120. 



(r) Burridge y. Suttex {Earl of), 
2 Ld. Haym. 1292; LmkingUm 
V. Llmdi^ {Bithop of), 2. N. B. 
491. 

(«) As to the DiBgsyeUing Acta, 
see Eltoni Ten. of Kent, c. 16, and 
p. 9, anU. 



EVIDENCE. 327 

land was in the partioolar ownership at the date of the 
Act (t). This is done by proving the Act, and by pro- 
ducing any records which bear upon the circumstances of 
the particular case, such as inquisitions post mortem or 
surrenders of monastery lands preserved among the records 
of the Court of Augmentations, grants of such lands by 
the Crown to private persons (of which the dates may be 
found in the Patent Eolls) licences of alienation, pardons 
for alienations without licence, and many other kinds of 
official records. The Act 31 Hen. VIII. c. 3 is printed 
among the general Statutes, but being of a private nature 
and not affecting the whole county it should be proved by 
a copy examined with the original on the Parliament Boll, 
as is necessary in the case of the other DisgaveUing Acts 
which have never been printed (u). 

The existence of a manor properly depends on the fact Existence of 
of there being at least two freeholders holding of the ™*^'- 
manor in fee and subject to escheat, and not upon the 
holding of courts (a?). It is not however necessary in 
ordinary cases to prove the continuance of a manor, as the 
title to waste land and to the enjoyment of manorial rights 
and franchises may be supported by evidence that the 
manor had formerly a legal existence (y). Reputation is 
also primd facie proof of the existence of a manor (2) . In an 
action of ejectment against an encroacher upon the waste 
by a person who claimed to be devisee of the manor, it 
was held that parol evidence that the devisor of the manor 
had held a court many years previously, and that the 
devisee himself had on several occasions held courts, vrith 
proof of the appointments of gamekeepers by deputation 

(0 Bob. Q«v, 97; B. P. Gomm. Taylor, Eyidence, Sthed. 1803, and 

1 Bep. App. n>3, 228, 286, 350 ; 45 & 46 Viot. 0. 9. 
WUman y. CotUm, 1 Sid. 135, 138 ; (x) Glover v. Xow, 8 T. B. 446, 

Elton, Ten. of Kent, 858—364. 447. 

(«) See Doe d. JBaeon v. Brydgee^ (y) Curzon v. Lomaz^ 6 Esp. 60. 

6 M. & Gt. 282 ; and see generally, (z) Soane v. Ireland^ 10 East, 259. 

an to proof of Acts of Parliament, 



328 THK LAW OF COPYHOLDS. 

was primA facie evidenoe both that the manor existed and 
that the devisee was lord (a). It has been said that where 
a dooumentary title can be made, very scanty exercise of 
the rights will support a claim to an allotment in lieu of 
the soil of the waste (5). In one case the existence of a 
manor was held to be proved by reputation ^' without the 
slightest vestige of the existence of any manorial right 
whatever" (c). 
f*^®*. . The boundaries of a manor may be proved in certain 

ooonaaneB of , , 

manor by »ot cases by aots of ownership, which show what has been the 
o'"^®™*"?- meaning of ambiguous expressions in an ancient grant, for 
all ancient grants may be explained by modem usage to 
discover what was included in them ; thus a series of acts 
of ownership upon the seashore may show that it was 
parcel of the manor as granted originally by the Crown ((/), 
though in the absence of evidence to the contrary the 
Grown is presumed to own the shore up to the medium 
high-tide line between the spring and neap tides {e). 
Where the shore was shown to be parcel of a manor, it 
was held that the word ^' waste" was a sufficient description 
of the soil between high and low water mark (/). The 
right to take wreck upon the shore is accepted as evidence 
that the Grown granted the shore as parcel of the manor, 
though it is not conclusive {g). So the mines under free- 
hold lands may be shown by acts of ownership to be part 
of the demesnes of the manor, in opposition to the common 
presumption in favour of the surface-owner (A). And on 
the same principle it has been seen that copyholders may 
show by evidenoe of user, if uncontradicted by evidence of 

(a) Do$ d. Beeh y. Eedkin, 6 A. M. & G. 206. 

&£. 495. (/) AtU-Gm. y. Hannm, 7,TL, 

(h) Cooke, Indosizrefl, 93. J. K. S. Ch. 837. 

(e) Steel y. JPriekett, 2 Stark. 463. (^) Calmady y. Bowe, 6 G. B. 

((i) Calmady y. Bowe, 6 0. B. 861. As to eYidenoe in sapport of 

861 ; Beaufort {Duke of) y. Swantea a daim to wreck, see Biddulph y. 

{Mayor, ^e. of), 3 Exch. 413; AU.^ Ather, 2 Wils. 23. 

Oen, Y. Jonee, 2 H. & G. 347. (A) Bamet y. Maweon^ 1 H. ft S. 

(e) Att,'Oen, y. Chambert, 4 De G. 77. 



EVIDENCE. 329 

Hie onstom having been the t)ther way, that they are 
entitled to the minerals or timber on their copyholds (t). 
Where usage, though it be not ancient, is admissible and 
is unopposed by other evidence, it is usually conclusive (k). 
A copyhold tenement described as '' meadow" on the 
court-roll may by usage be shown to include no more than 
the ^' first crop " (/), and so with similar instances. 

Boundaries may also be proved by evidence of reputa- By xopnta- 
tion where the question relates to matters of general or ^^^' 
public interest (m). ^^ The term ^interest' here does not 
mean that which is interesting from gratifying curiosity, 
or a love of information or amusement, but that in which 
a class of the community have a pecuniary interest or 
some interest by which their legal rights or liabilities are 
affected. The admissibility of the declarations of deceased 
persons in such cases is sanctioned because these rights 
and liabilities are generally of ancient and obscure origin, 
and may be acted upon only at distant intervals of time ; 
because direct proof of their existence therefore ought not 
to be required ; because in local matters in which the com- 
munity are interested, all persons living in the neighbour- 
hood are likely to be conversant ; because, common rights 
and liabilities being naturally talked of in public, what is 
dropped in conversation respecting them may be presumed 
to be true ; because conflicting statements would lead to 
contradiction from others if the statements were false ; and 
thus a trustworthy reputation may arise from the concur- 
rence of many parties unconnected with each other, who 
are all interested in investigating the subject. But the 
relaxation has not been and ought not to be extended to 
questions relating to matters of mere private interest, for 
respecting these direct proof may be given, and no trust- 
worthy reputation is likely to arise. We must remark, 

(i) Ante, p. 237. (m) jB«y. v. Bedforthhire (Inhabts. 

(k) Sex Y. ffoyte, 6 T. B. 430. o/), 4 E. & B. 636 ; Ihe d. Molet^ 

{I) summers y. Dixon, 7 East^ worth y. Sleeman, 9 Q. B. 298. 
200. 



880 THE LAW OF CX)PTH0LD8. 

however, that although a private interest Bhoiild be 
involved with a matter of publio interest, the reputation 
respecting rights and liabilities affecting classes of the 
community cannot be excluded, or this relaxation of the 
rule against the admission of hearsay evidence would often 
be found unavailing" (n). In order, however, to mak(9 
hearsay testimony admissible, it must be shown that the 
persons making the declaration or statement had a per- 
sonal and competent knowledge of the subject (o) ; but if 
it can be fairly assumed from the nature of the evidence 
that it was derived from persons acquainted with the facts, 
the Courts will not demand particular evidence of their 
knowledge (jp) ; and it has been said that if the question 
is one in which all the inhabitants within the manor, or all 
the tenants of it, or a particular district of it, are inte- 
rested, reputation from any deceased inhabitant or tenant 
or even deceased resident in the manor would be admis- 
sible, such residents having presumably a knowledge of 
such local custom {q). It is also a further requisite that 
declarations by deceased persons, when tendered as evidence 
of reputation, must be shown to have been made ante litefn 
niotamj or in other words, before any controversy or 
dispute arose regarding the actual matter to which they 
relate (r) ; but the mere fact that there was previously a 
controversy regarding a matter very similar in its nature 
to the dispute which subsequently arises will not make 
declarations which have been made during the continuance 
of the first suit unavailable as evidence in a later action 
on the ground that they had been made after the contro- 
versy arose («). On the principles above stated, evidence 



(») Per Curiam in lUg, y. Sed- S. 486. 
fordthire (InhabU. of), 4 E. & B. {g) Jhmrcnm {Barl of) y. LUwel' 

635, 541. lyn, 16 Q. B. 791, 809. 

(o) Rogers y. Wood, 2 B. & Ad. (r) Taylor, Eyidenoe, Sih ed. 

245, 266 ; Crease v. Barrett, 1 C. M. 664. 
& R. 919. («) Freeman y. FhilUppe, 4 H. & 

(p) Freeman y. FhUlippe, 4 H. & S. 486. ^ 



EVIDENCE. 381 

of what old persons who were dead had been heard to say 
oonoeming the general boundaries of two manors, though 
not as to particiilar f aots or transactions, was admitted in 
an action where the question was whether a certain 
common or waste was in one or other of the manors in 
question, even although the old persons lived within the 
manor and claimed rights of common on the waste, which 
would have been enlarged by their declarations, as it did 
not appear that there was at the time any dispute or 
litigation pending regarding the rights of the declarants (t). 
So, also, evidence of reputation has been admitted to prove 
not only that there was a known distinction within the 
manor between old and new land, but also to show what 
the boundaries of the new land were, and what was the 
general right of the lord over such land (u). Again, in 
an action concerning wreck, an ancient document purport- 
ing to be the answers of deceased tenants to commissioners 
appointed by a former lord was allowed as evidence of the 
boundary of the manor, but not of the private right to the 
franchise, as it was not a matter of public concern, or one 
respecting which the tenants had any peculiar means of 
knowledge (x). But evidence of reputation will not be 
admissible where the question is as to the boundary 
between two private estates, or where the evidence goes to 
establish a particular fact; thus, declarations of old persons 
deceased as to what was the. ancient boundary of a waste 
were not admitted where the question was whether the 
waste was parcel of a certain farm (y) ; and so in the case 
of Dunraven (Earl of) v. Lletvellyn (z), the declarations 
of tenants having only rights of common appendant over 
a waste were held inadmissible to prove that a certain spot 

(0 NieholU Y. Fa/rker^ 14 East, (y) Clothi&ry. Chapman, 14 East, 

831, n. 331, n. 

(m) Barnes y. Mawtan, 1 H. & S. {z) 16 Q. B. 791, 811, explaining 

77, 81. Weeks v. Sparke, 1 M. & S. 679; 

{x) Talbot T. Lewis, 1 G. M. & B. and Ffiehard y. Fotcell, 10 Q. B. 

496. 689. 



332 THE L\W OF COPYHOLDS. 

was part of tho manorial wastes, the Court being of opinion 
that, as the right of each tenant was a separate and private 
right and was not of a public eharact^, reputation was 
inadmissible. 

Bv the verdict The boundary of a manor may also be proved by the 
verdict of a jury in a former action between third parties, 
for the verdict, though not reputation, is at least as good 
as evidence of reputation. Thus, where the question 
related to the boundary between two manors A. and B., 
and the plaintiff's contention was that a ridge of mountain 
was the boundary line, it was held that he might show in 
support of his case that the boundary between an adjoin* 
ing manor G. and the manor B. was the ridge of the same 
line of mountain, and that he might prove tiie fact by the 
finding of a jury, who had been summoned under a com- 
mission from the Duchy Court of Lancaster for the purpose 
of determining the boundary between the manors C. and 
B. on the petition of former owners of C. and B., who 
had represented that the boundary was uncertain and that 

Not by award suits were likely to grow between them (a). But the 
award of an arbitrator setting out a boundary, as proved 
before him, cannot be received as evidence of the boun- 
dary (J). 

Terriers, Again, ancient records, terriers, presentments at manorial 

enrveya, &c. Qo^ytg^ surveys, conveyances, &c., have been admitted as 
evidence of reputation, or as equivalent thereto; but it 
must be shown that they come from a proper custody (c), 
and have been made under the proper authority (d), and 
they will then be receivable as public documents, for a 
document which appears to be no more than a survey 
taken by a private individual for his own purposes will 
not be received in evidence as a public document (e). But 

(a) Sriteo v. Zomas, d A. & £. {d) Etana y. Taylor^ 7 A. & £. 

198. 617. 

(h) Bvans t. Bees, 10 A. & E. 151. (e) Daniel v. Wilkin, 7 Ex. 429 ; 

(e) Ibid. Phillipa y. ffudson, L. B. 2 Ch. 

243. 



EVIDENCE. 

an andent survey of Crown lands, which oame out of a 
proper onstody and appeared to have been properly taken, 
has been admitted, although the commission could not be 
found (/) . Manorial surveys must be signed by the tenants, 
and presentments made by a jury of survey must be properly 
signed, and must be made at a court of survey {g). Such 
presentments are not admissible if msA^bpost litem motam. 
Thus in a case relating to the title of the soil of a sheep- 
walk a presentment on the court-rolls was rejected, wherein 
the jurors recited that they were sworn to view the land 
in question, and stated upon oath that it was part of a 
certain waste and not part of the freehold tenement, and 
it was held that it could not be admitted as a proper pre- 
sentment, because the homage had no power to decide the 
question of private right, nor as an award for want of 
mutual submission, nor as evidence of reputation, because 
it was made after the commencement of the dispute {h). 

To prove the extent and rights of a manor, formerly 
part of the Duchy of Lancaster, a document from the office 
of the Duchy, purporting to be a survey made by a 
former deputy-surveyor, founded on the presentments of 
the tenants at a court of survey, was held to be inadmis- 
sible, either as a document made under public authority, or 
as evidence of reputation, it appearing that the Grown had 
paid the expenses of the survey ; and an argument based 
on the duties imposed on the surveyor by the Statute 
^ Extenta Manerii^ was rejected, because the Statute did 
not impose the duiy of ascertaining the boundaries of 
manors (i). A survey taken under a commission from the 
Crown, to which at the time the manor belonged, was 
admitted to show the extent of the demesne-lands at that 

(/) Bawt Y. Srmion, 8 B. & G. G. 657. 

737, 747. (t) £vam v. Tayhr, 7 A. & E. 

(^) Vm. Abr. zii. 90, pi. 12 ; 617 ; see Beaufort (Duke of) v. 

Stark. Evid. 473. /SmiM, 4 Exoh. 460. As to Statute 

(A) Richards y. Ba$s$tty 10 B. & Extmia Maneriif see ante^ p. 4. 



383 



334 THE LAW OF CX)PYH0LD8. 

time (y). And an andent snryej of Crown lands, found 
in the office of Land Itevenue Beoords and purporting to 
have been made by a proper authority, was taken as evi- 
dence of the title of the Grown to lands therein stated to 
haye been purchased from a subject (A:). It may be men- 
tioned here that surveys of Church lands and Crown lands 
were taken in the time of the Commonwealth by commis- 
sioners acting under the authority of Acts or Ordinances of 
the Parliament, the copies of the surveys being deposited 
in many of the cathedrals, and in some cases in Lambeth 
Palace Library. '^ The originals would have been good 
evidence of the particulars of the surveyed estates ; but as 
they were destroyed at the time of the great fire of Lon- 
don, the copies have been admitted as evidence in the place 
of the original surveys, provided they have been kept in 
unsuspected repositories " (/) . Private surveys and records 
can only come into evidence as declarations against in- 
terest (m). 
Preeentmente Presentments in a court-roll are not evidence that the 
' lord has acted as the owner of lands in dispute (n) ; noi 
are presentments of fines, amercements, or the like, evi- 
dence that the payments were due, unless the payment is 
also proved. But in a case where the question was whether 
the plaintiffs had a prescriptive right of exclusive fishery 
which they claimed under the lords of the manor, and as 
appurtenant to the manor, they were allowed to give in 
evidence entries of licences on the court-rolls of the manor, 
whereby it appeared that the lords had a several fishery 
and had granted liberty to fish in consideration of certain 
rents, without the necessity of proving payment under 
these licences, as they were of such ancient date that evi- 

(J) DifneiY^Arden^ 6N.&M.494. (m) BridgtMin v. Jirminfft, 1 Ld. 

(k) Doe d. King WiU. IK v. Raym, 734; Phimps v. JBTudton, 

Rohertty 13 H. & W. 520. L. B. 2 Oh. 243. 

(I) Fhm. ETid.i. 406; BuOm ▼. (») Irufin (Vitct.) y. Simpwn, 7 

Michel, 2 Price, 809. Bro. P. G. 306, 317. 



EVIDENCE. 335 

dence of payment could not reasonably be expected ; but it 
was said by the Court that to give any weight to these 
licences it must be shown that in later times payments had 
been made under licences of a similar kind, or that the 
lords of the manor had exercised other acts of ownership 
over the fishery which had been acquiesced in (o). 

Again, ancient leases have been held as properly receiy- Ancient 
able as evidence of reputation in a question of parish ^**^' 
boundary (p). Perambulations are also evidence of the Perambnla- 
extent or boundaries of a particular manor (^), and if ^"^' 
entered on the court-rolls will be receivable as evidence ; 
but an entry on the court-rolls that the perambulation had 
taken a particular line would not be admissible (r). 

Maps are admissible as evidence of reputation, if coming Maps, 
from a proper custody, and therefore tending to show 
that they are likely to be authentic (s), and if appearing 
to have been made by or from the relation of persons with 
a proper knowledge of the locality and to have been gene- 
rally accepted by such persons as accurate {t). But a pri- 
vate map is not usually receivable in evidence either for 
or against the parties making it ; but in certain circum- 
stances it may be received as a declaration against in- 
terest (u). A tithe-commutation map is not admissible 
in evidence on questions of ownership as showing the 
boundary of land in cases of disputed title (x) ; and it has 
been held that the ordnance map and maps found in the 
British Museum cannot be received in evidence to prove 
that a certain piece of waste land is within a certain parish 
and forms part wd parcel of a common (y). 

(o) Sogers v. Allan, 1 Gampb. (Q Bex t. Milton {Inhabte. of), 1 

309, 311. C. & K. 58. 

(p) Flaxton y. Dare, 10 B. & G. (m) See Doe d. Hughee y. Lakin, 

17. 7 0. & P. 481. 

{q) PhiU. Evid. i. 249. {x) Wllberforee v. RearJUU, 5 Ch. 

(r) Weeko v. Sparhe, 1 M. & S. Div. 709. 

G79; ray^y.i>fr03r, 7A. &E.409. (y) Biid«r v. Bridges, W. N. 

is) Hammond t. Bradttreet, 10 (1886) 183 ; 8. C, W. N. (1886) 

Exoh. 390. 148 (0. A.). 



886 THE JjJLVr OF OOFSTHOLDS. 

Manorial As to manorial franchises it should be remembered that 

franohifleB. ^j^^y ^^^y ^^q extinguished by forfeiture for a misuser, or 

even by disuse. Thus after a long interval it would 
appear that the franchise of holding a court-leet becomes 
extinct (2), though it is otherwise as to a oourt-baron^ 
which is a necessary incident of a manor {a). To establish 
a right to free-warren or any similar franchise, it seems it 
is necessary to prove that of the right has been enjoyed 
down to the time of making the claim, as ^' the non-user 
creates a presumption that the franchise has been surren- 
dered" (i), though formerly the doctrine was that franchises 
which were for the profit or pleai9ure of the grantee were 
not lost or forfeited by non-user, but that in the case of 
liberties wherein the public have an interest for their com- 
mon profit, non-user was a cause of forfeiture (c). Itepu- 
tation also is admissible evidence of a claim of free-warren 
by prescription over an entire manor. Thus in an action 
by the lord of a manor against a copyholder for trespass- 
ing on his free-warren, a private Act which was passed for 
the inclosure of common lands within the manor, and con- 
tained a recital relating to the interests of the copyholders, 
but expressly saved the rights of the lord to free- warren in 
as ample a manner as he had theretofore enjoyed it, taken 
with declarations of deceased copyholders as to the exist- 
ence of the franchise over all the copyholds, was admitted 
in evidence to prove the right ; and in the same action a 
judgment on a qu^ warranto information brought against 
a former owner of the manor by the Attorney-General, in 
which the former owner pleaded, and the Attorney-General 
confessed, a prescriptive title to the free-warren as appur- 
tenant to the manor, was received as evidence in support of 
the right, as being the judgment of a competent Court upon 

{z) See Barr^U t. Bridge, 1 W. {b) Cru. Dig. tit. 27, b. 97. 

Bl. 46. {e) Case of ZeieeaUr Forest, Oro. 

(0) Bex T. Haverinff'atte'Sotoer Jao. 166 ; ctf. Bro. Abr. tit. Fran- 

Manor (Steward of), 5 B. & Aid. chise, pi. 10, 22. 
691. 



EVIDENCE. 337 

a matter of a publio nature conoeming the Crown and its 
subjects (d). 

Upon the question whether a particular tenement con- Proof of 
tinues to be hdd of a manor, notwithstanding a great ^^' 
lapse of time without render of services, it may be observed 
that the tenure will be presumed to continue, in the case of 
freeholds as weU as copyholds, unless something is proved 
from which a release can be presumed. In the case of 
Chichester {Earl of)Y. Hall{e) it appeared that the land 
was freehold held of the lord of a manor under render of a 
heriot, relief, quit-rent, &c., but that no service of any kind 
had been rendered to the lord for forty-five years, although 
there had been occasions when the services were due and 
might have been demanded ; and it was held that the lapse 
of time was no ground for presumiug that the tenure of 
the lands had been changed. Again, in a case where it 
was shovm that copyhold property had upwards of a cen- 
tury previously been conveyed for the purpose of a work- 
house, and that the lord had not since the date of the con- 
veyance received a small acknowledgment for which he 
had then commuted the fines and other services due from 
the property, it was held that in the absence of evidence 
adverse to tiie right of the lord the Court would not pre- 
sume an enfranchisement of the land from mere negli- 
gence on the lord's part in exacting the acknowledg- 
ment (/). But upon proper evidence the enfranchisement 
of a copyhold may be presumed, even against the Crown. 
Thus, where certain lands were admitted to have been 
originally copyhold and to have been subject to an ancient 
rent of 6«. 6ef., but had been surrendered in 1636 to 
churchwardens and their successors without mention of any 
rent, and it was shovm that the churchwardens were 
charged in a Parliamentary survey made in 1649 virith the 

(rf) Cama/rv<m {Earl of) v. Fi/fe- (/) Turner v. W^t Brommch 

hoU, 18 M. & W. 313. Vhum {Ouardims of), 9 W. B. 155. 

W 17 L. T. 121. 

E. Z 



338 THE LAW OP COPYHOLDS. 

payment of a stun of 6d. under the head of '^ freehold 
rents," and that receipts had from time to time been givea 
by the steward as for a freehold rent, these facts were 
held to be evidence on which the jury might presume an ' 
enfranchisement as against the Grown (^). It has also 
been said that where a person would have any advantage 
from making a claim, his long non-claim may be evidence 
of a release (A). In the case of Lydiard and Jack^orCs and 
Broadley^s Contract {i) it appeared that land anciently 
copyhold had been for upwards of 100 years treated as 
freehold, without any claim being made on the part of the 
lord of the manor, and that the only intimation that the 
land was copyhold consisted of recitals contained in deeds 
of recent date, together with a covenant to surrender, to 
which the lord was neither party nor privy : and it was 
held, as between the vendor and the purchaser of the land, 
that under the circumstances an enfranchisement must be 
presumed. 
Eyidence of There is no rule as to the extent of evidence which is 
required to establish a custom, or from which the presump-* 
tion or inference of the fact of a custom may be rightly 
drawn (A:). Although one act, even if undisturbed, does 
not make a custom, it has been said that it will be evidence 
of the custom (/). One entry on the roll will be sufficient 
to prove a custom under some circumstances, as in questions 
as to the custom of descent, dower, or the like (m), and an 
entry of the custom of descent in a manor has been 
admitted as evidence, though no instance was given of the 
actual descent (n). Old leases also have been held to be 

(^) Soe d. Johnsm y. Ireland^ 11 S. 626, 635. 
East, 280. (I) Roe d. Benmtt r. Jeffery, 2 H. 

(A) Miliary y. WalUr, 12 Yes. & S. 92. 
jtm. 239, 266. (m) Doe d. Maaon y. Miuon, 3 

(i) 42 Ch. Div. 264. WUg. 63. 

{k) FifT Lord Westbury, L. C, (») JRoe d. Beebee y. Farker, 6 

in Eanmer y. Chanee^ 4 De O. J. & T. B. 26. 



oustom. 



EVIDENCE. 389 

evidenoe of a custom to approve (o), and this woidd 
seem to be bo, even if no enjoyment under them were 
proved (p). 

A regular series of entries in a oonrt-roU, or a statement 
of customs signed bj the homage or the former tenants, 
and found in the proper custody, is the best evidence of a 
custom. In one case an ancient writing handed down 
with the court-roUs from steward to steward, and purport- 
ing to be the customary of the manor was received as evi- 
dence of a custom mentioned therein (q) ; and in another 
case, in order to prove a custom that the lord was entitled 
to take only one heriot from a tenant, no matter what the 
number of the tenements were, a paper purporting to be 
a copy of an old decree of the Court of Chancery in a suit 
between a copyholder and the lord, which was produced by 
a witness who had been lord of the manor and had found 
the document among the papers of a previous lord, was 
admitted as evidence of the custom on proof of search 
having been made for the original (r). 

In the absence of better evidence, and if there is nothing 
to show that the custom did not exist at any given period 
within legal memory, evidence of reputation is admitted 
to prove the existence of a custom, as '^ tradition and the 
received opinion are evidence of the lex loci'' («). But 
though the general opinion may be evidence of the general 
right, the tradition of a particular fact said to have been 
done in the exercise of the right is not evidence (t). In 
the case, however, of a customary right which admits of 
acts of enjoyment, a foundation ought if possible to be 
laid, showing its exercise within living memory : '^ it is 

(o) Zaseellea y. Ontlow {Lordjf 2 («) Per Lord Kenjon, C. J., in 

Q. B. Div. 433. Soe d. Beebee v. Parker, 6 T. R. 26, * 

{p) Clarkson v. Woodhotue, 3 31 ; Doe d. Fortter v. Siston, 12 

Dougl. 189. East, 62 ; Freeman y. FhiUippe, 4 M. 

(q) Dem d. Goodwin y. Spray, 1 & S. 486. 

T. R. 466. (0 Phill. Evid. i. 260 ; Taylor, 

(r) Friee v. Woodhouae, 3 Exoh. Evidence, 8th ed., 643. 
616. 

z2 



340 



THE LAW OP COt^VHOLDS. 



BeqnidteB of 
QBor as 
eyidence of 
oufltom. 



the exercise of the right that letfi in the eyidence of repu-^ 
tation " {u). In Hanmer v. Chance (x) it was held that a 
custom for copyholders to dig vitreous sand in their tene- 
ments was sufficiently proved by evidence of digging for 
twenty-seven years, and in Bex v. Joliffe{y)y twenty 
years' regular usage uncontradicted and unexplained was 
held to be cogent evidence for the jury to presume that the 
custom was an immemorial one. It has been held that 
the absence of any mention of a custom in a custumal 
which has been compiled within legal memory is conclusive 
evidence against the existence of the custom alleged (z) : 
but in a later case it was said that a special custom in a 
manor that the purchaser of several distinct copyhold tene- 
ments under one disposition must take admittance to aU at 
one and the same time, and pay one general fine in respect 
of all, might be evidenced by a uniform course of practice 
or usage in the manor for a number of years, although no 
mention of the custom as alleged appeared either on the 
court-rolls or in any of the custumals or other records of 
the manor (a). 

With regard to the usage which will prove a custom, it 
must be shown that it has been peaceable and continuous 
from time immemorial. This does not mean that there 
must be proof that the usage has existed since the com- 
.mencement of legal memory in the reign of Eichard I., 
but it is necessary that there should be modem user from 
which the immemorial origin may be presumed, and nothing 
to upset the presumption. In other words, there must be 
proof that there has been actual usage and that there has 
been no interruption in the right, though there may have 
been discontinuance in the user or enjoyment of the 
right (5). As custom is a local law, it cannot be got rid of 



(m) FhiU. £yid. i. 249 ; see WeeJa 
V. Sparke, 1 M. & S. 679. 

(:r) 4 De G. J. & S. 626. 

(V) 2 B. & 0. 64. 

\z) Portland {Duke of) v. Sill, 
L. R. 2 Eq. 765. 



(a) Johnstone y. Spencer {Earl), 30 
Ch. Div. 581. 

(A) Co. Litt. 110 b, 114 b; Co. 
Copyh. B. 33 ; Case ofTanistry, Day. 
28 b; CJom. Dig. Copyh. (S.). 



EVIDENCE. 341 

dxodpt by Act of Parliament, but long-oontinued non-user 
in modem times will be strong evidence of its never having 
existed (c). It must also be shown that the usage has 
been reasonable, that is, not absurd immoral or prejudicial 
to the interests of the State, nor destructive of the property 
where the custom is to be exercised or of the copyholder's 
estate, but such as can fairly be imagined to have 
originated in an agreement before the time of memory. 
"It is not easy," says Lord Cranworth, "to define the 
meaning of the word ^reasonable' when applied to a 
custom regulating the relation between a lord and his 
copyholders. That relation must have had its origin in 
remote times by agreement between the lord, as absolute 
owner of the whole manor in fee simple, and those whom 
he was content to allow to occupy portions of it as his 
tenants at will. The rights of these tenants must have 
depended in their origin entirely on the will of the lord, 
and it is hard to say how any stipulations regulating such 
rights can, as between the lord and tenant, be deemed void 
as being unreasonable. Cujm est dare ejus est disponere. 
Whatever restrictions, therefore, or conditions the lord 
may have imposed, or whatever rights the tenants may 
have demanded, all were within the competency of the 
lord to grant or of the tenants to stipulate for. And if it 
were possible to show that before the time of legal memory 
any lawful arrangement had been actually come to between 
the lord and his tenants as to the terms on which the 
latter should hold their lands, and that airangement had 
been afterwards constantly acted on, I do not see how it 
could ever be treated as being void because it was un- 
reasonable." ..." When it is said that a custom is void 
because it is unreasonable, nothing more is meant than 
that the unreasonable character of the alleged custom con* 
olusively proves that the usage, even though it may have 
existed immemorially, must have resulted from accident or 

(<j) JTammerton v. ^ow^, 24 W. R. 603. 



342 



THE LAW OF COPYHOLDS. 



Custom in one 
manor no 
evidence of 
custom in 
another. 



indulgence and not from any right conferred in ancient 
times on the paxty setting up the custom" {d). Thus, a 
custom alleged for the lord of a manor to grant leases of 
the waste lands without restriction has been held unreason- 
able, because its effect would be to enable him to destroy 
the right of common thereon altogether (e). Further, it 
must be shown that the usage has been certain; for a 
custom depending on any imcertainty, such as the will of 
a third person, would not be allowed (/). It is no objec- 
tion to a custom that it is against the common law, for it 
is indeed of the very essence of a custom that it should 
vary from the common law {g). But no usage can be esta- 
blished by way of custom which within time of memory 
was allowed by the common law but was subsequently dis- 
allowed by statute (h). 

With regard to manorial customs, it is a well-established 
rule that the evidence of usage in one manor is no proof 
of the custom in another, because as each manor may have 
special customs for itself, it would put an end to special 
customs if evidence of custom in neighbouring manors 
were admitted in proof (f). But to this general rule there 
are exceptions. Thus, if it be first proved that the 
manors are closely connected with each other, and that the 
customs in the two are identical, evidence as to the custom 
in one will be admissible as evidence regarding the custom 
in the other. But geographical proximity is not sufficient 
of itself to admit such evidence, nor even the fact that one 
manor was a subinfeudation of the other, unless it can be 
shown that they were separated after the time of legal 
memory, for if the separation were before the time of legal 
memory, each manor might have different immemorial 

Sowles Y. MagOHj 2 Brownl. 85, 86 ; 
mbon V. milet, 7 East, 121. 

(^) Morton y. Beekman, 6 T. B. 
760, 764. 

(A) Ante, p. 19. 

(i) Anglesey {Marquis of) ▼. 
Satherton {Lord), 10 M. & W. 218. 



{d) Per Lord Granworth, in Salts' 
bury {Marquis of) y. Gladstone, 9 
H. L. Gas. 692, 701. 

{e) Badger y. Ford, 3 B. & Aid. 
163. 

(/) Fitzh. Abr. tit. Barre, pi. 277 ; 



EVIDENCE. 343 

oastoms (k). Also, if there be a doubt as to a partioular 
incident of the general tenure which is proved to be 
common to two manors, evidence as to the custom regard- 
ing the tenure in one manor may be given to show what 
the custom of the other is (/). Evidence as to the custom 
of one manor in the Border districts, where tenant-right 
prevails, has been admitted to prove the custom of another 
manor in the same district as to that tenure, and similarly 
with manors in the mining-districts of Derbyshire and 
Cornwall and in the fen-districts of the eastern coimties (w). 

When a copyholder claims a right of common by virtue Proof of right 
of a custom prevailing within the manor, he will establish ^ ^^™™^"- 
his right by evidence of the same nature as is required for 
the proof of any other manorial custom ; but he may daim 
the right as appurtenant to his tenement, and may establish 
his claim by proof of the enjoyment of the right for the 
periods limited by the Prescription Act, 1832 (w). In 
such a case it is only necessary for him to show that he 
has actually enjoyed the benefit which he claimed for the 
requisite period as of right and not by permission, and 
that the right claimed is one which could have a legal 
origin by custom or grant (o). But if the claim is made 
under the provisions of the Prescription Act, evidence 
of the enjoyment of the right for twenty-eight years 
immediately preceding the action in which it is disputed 
will not satisfy the statutory requirements as to proof of 
enjoyment for thirty years, if it appears that there was an 
interruption of the enjoyment prior to the user for tweniy- 
eight years, even although it is shown that the right had 
been exercised before the interruption (p). The inter- 

(k) Ibid. of) V. Warren, 2 Atk. 189 ; Taylor, 

(I) Bowe y. BrmtoHf 8 B. & 0. Evidenoe, 8th ed. 807. 

737, 762. (fi) 2 & 3 WilL IV. o. 71. 

(i») Somerset {Duke of) v. France, (o) De la JFarr (Eart) v. Miles, 

I Stra. 664 ; Lowiher y. Maw, 2 Bro. 17 Ch. Biy. 635. 

P. C. 461 ; Roe d. Be^ee y. Farker, (p) Bailey y. Appleyard, 8 A. & 

6 T. B. 26, 31 ; Ely (Dean and Ch. £. 161. 



344 



THE LAW OF COPYHOLDfl. 



Nature of 

copyhold 

estates. 



Amount of 
fine. 



raption, however, must be an adyerse obetruoiion and not 
a mere disoontinuanoe of user by the claimant himself, and 
accordingly a verdict that there had been a continued 
enjoyment of the right for thirty years was held to be 
justified, although it appeared that the commoner had not 
used the common during two years of the thirty through 
not having any commonable cattle at the time, the right 
having been exercised both before and after the period of 
cessation (q). There is no objection to a copyholder basing 
his claim to a right of common either on a general custom 
prevailing within the manor or in the altemative on 
actual enjoyment of the right as appurtenant to his tene- 
ment for the prescriptive period (r). 

There will not in general be much difficulty in ascer- 
taining the nature of the estates which the copyholders of 
a manor may by the custom possess in their respective 
tenements. It wiU be remembered that the power to 
grant the greater estate implies a power to grant the less («). 
As to copyholds for lives and years, it has been mentioned 
above that the proper evidence to prove a right of renewal 
is to show that the fine is certain by entries in the court- 
rolls (t). If a fixed amount has been paid as a fine for a 
long period, and it appears by the roU to have formerly 
been uncertain, this will not be deemed a fine certain ; but 
a few instances either way might not be conclusive as to 
the certainty of a fine, if they could be attributed to the 
carelessness of a steward (u). If a fine certain has been 
demanded, it is not evidence of uncertainty that the tenant 
has paid less, because the lord is at liberty to compound 
his daim {x). The Court will presume that ^a fine is 
uncertain until the contrary is proved from the rolls (y). 
With respect to copyholds for lives, it should also be 



Iq) Garr y. Fotieff 8 Q. B. 681. 

(r) J)0 la Warr (Eart) t. Milet, 
17 Gh. Div. 685. 

(«) Ants, p. 26. 

{t} Wharton y. Ktng, Anst. 669 ; 
anUf p. 43. 



. (u) GerardpM {Lord) Gate, Godb. 
266. 

(x) Allen y. Abraham, 2 Bills. 82. 

(y) Trotter y. Blake, 2 Hod. 229, 
231. 



EVIDENCE. 345 

remembered that those customs are taken very strictly 
which enable one of the lives to bar the estates of the rest, 
and that his exercise of the right must be shown to have 
been effected in accordance with the requirements of the 
custom (2). Customs as to widowhood or freebench do not 
alter the rights of a copyholder's widow under the Intestiites' 
Estates Act, 1890. It has been shown that a grant to a man Entails, 
and the heirs of his body may, according to the custom of the 
particular manor, give either an estate-tail or a fee-simple 
conditional (a). It is no evidence of a custom to make a 
grant in tail that land has been used to be granted to a 
man and the heirs of his body, unless there has always 
been a remainder after such estate, or the issue have 
avoided the alienation of the ancestor (6), or unless there 
has been some other dealing with the estate which is 
inconsistent with the nature of a conditional fee. On the 
other hand, the custom of entailing may be disproved by 
instances of dealing with the land in a way which is only 
appropriate to an estate in fee-simple conditional, as where 
the tenant has aliened in fee after the birth of issue'without 
any disentailing assurance, and the issue has failed to 
recover. Before the passing of the Fines and Becoveries 
Act, 1833 (c) it was held that a single instance of barring 
an entail by a surrender was sufficient evidence of a custom 
to bar either by surrender or by a customary recovery ; but 
many instances oi barring by recovery would be evidence 
that a surrender was not the proper method (d). Disen- 
tailing assurances of copyholds imder the Act must be 
enrolled on the court-rolls within six months after execu- 
tion (e). , 

As to copyhold assurances generally, the proper evidence Copyhold 
is a copy of the oourt-roU signed by the steward (/). It *«8'^'»'^<^ 

(c) AnU, p. 40. If. & S. 92. 

(a) AnU, p. 26. {e) Sect. 54 ; Soneywood v. Fotter, 

(b) Co. litt. 60 b. 30 Bear. 1; Cfreen y. FaUrton, 
(<?) 8 & 4 Wm. IV. c. 74. 82 Ch. Div. 96. 

{d) Eoe d. Bennett v. Jeffery^ 2 (/) l^now v. Cutler^ 1 Keb. 567. 



846 THE LAW OF COPYHOLDS. 

is the duty of the steward of a manor to deliver to the 
tenants, as part of their title, copies of the court-rolls; 
copies accordingly are admitted in evidence upon the same 
principle as the chirograph of a fine or the enrolment 
of a deed (i^). Proof of the steward's signature may be 
required, unless he is dead and the document is more than 
thirty years old (h) . The copy thus authenticated need not 
be that which was given to the tenant (i). The court-rolls 
themselves are as good evidence as any copies (k). 

The Stamp Act, 1891, re-enacting and consolidating the 
provisions of previous Stamp Acts, provides that the copy 
of court-roll of a surrender or grant made out of court 
shall not be admitted in evidence unless the grant or 
surrender, or memorandum thereof, is duly stamped, of 
which fact the certificate of the steward on the face of the 
copy shall be sufficient evidence ; and that the entry on 
the roll of a grant or surrender shall not be admitted in 
evidence, unless the surrender or grant, if made out of 
court, or the memorandum thereof, or the copy of court- 
roll of the surrender or grant, if made in court, is duly , 
stamped, of which fact the certificate of the steward in the 
margin of such entry is proof {I), But the provisions of 
the Stamp Acts are only revenue regulations, and are not in-, 
tended to vary the rules of evidence, and accordingly exa- 
mined copies of the entries on the court-rolls, verified in the 
usual manner, have been accepted as evidence of surrenders 
and admittances and other assurances (m) . It has been held 
that a surrender which was not entered on the roU might be 
proved, together with its due presentment, by a draft of an 
entry produced from the muniments of the manor, and the 
parol testimony of the foreman of the homage-juiy who had 

(^) AppUton y. Brayhrook (Lortt), 12 A. & £. 481. 

6M.&S. 34,38. (0 64 & 66 Vict. o. 39, s. 

(A) Wynne v. Tynvhitty 4 B. & 65 (2), (3). 

Aid. 376. (m) Doe d. Onwthom y. Mee, 4 B. 

{%) Breeze Y. Hawker, 14 Sim. Z50. & Ad. 617; Doe d. Burrows y. 

(k) Doe d. Bennington y. Hall, 16 Freeman, 12 M. & W. 844. 
East, 208 ; Doe d. Garrod y. OUey, 



EVIDBHCB. 847 

made the presentment (n) . In one case the steward's rough 
draft of an admittance was held to be good evidence of the 
fact (o). In regard to this case it has been said that it did 
not appear whether a proper engrossment had been made and 
afterwards lost, but the point appears not to be material ; 
" the draft may have been not a copy, but the original 
from which the roll was afterwards to be made out : the 
draft itself is more in the nature of an original than the 
copy, though the latter is more convenient for reference, 
and therefore is the document which is generally resorted 
to " (p). So, where a surrender to the use of a will was 
recited in the copy of an admittance in the record book of 
the manor and no entry had been made on the roll, the 
records being kept negligently, the entry in the book was 
taken as good evidence of the surrender (g). But it has 
been held that a copy of mere short notes by the steward 
** by way of breviat " was not suflBcient (r). 

" The rolls of a court-baron or of a customary court are Entries on 
evidence between the lord and his copyholders or free ^^'^'^^^ • 
.tenants. They are the public documents by which the 
inheritance of every tenant is preserved and the records 
of the manor-court, which was anciently a court of justice 
relating to all property within the manor " («). But they 
are evidence only against the lord or tenants, and are not 
public records in the strict sense of the term {t). And in 
case of a mistake the entry on the court-rolls can be altered 
to suit the fact, as where a conditional surrender has been 
entered as absolute, or where the agreement between the 
parties has been misstated by inadvertence (w). Proceed- Proceedings 

• • 'T—i. jiA-ii of courts. 

ings m a manorial court are proved by the entry or 

(n) Doe d. Friettley v. Calloway, 1 A. & E. 126. 
6 B. & 0. 484. (r) Zee v. Boothby, 1 Keb. 720. 

(o) Anon,, 1 Ld. Baym. 736, per («) Phill. Evid. i. 417. 

LoidHolt, G. J. \t) AtU-Qen. y. Eotham {Lord}, 

(p) Per Lord Tenterden, 0. J., in Turn. & R. 209, 217. 
J)oe d. Priestley v. Calloway, 6 B. & (u) Kite v. Queinton, 4 Eep. 26 a ; 

C. 484, 496. Doe d. Priestley v. Calloway, 6 B. & C. 

{q) Hex V. Thruseross {Inhabts. of), 484 ; EUt<m ▼. Wood, 2 M. & E. 678. 



348 THE LAW OF COPYHOLDS. 

memorandum on the roll, or if not entered may be proved- 
by the oflScer of the court, or any one eonyersant with the 
facts. " When the judgment of a court-baron, or of any 
other court of inferior jurisdiction, is offered in evidence, 
the proceedings on which it is foimded ought to be shown, 
but as the proceedings are not usually made up in form, 
the minutes will be admitted, if perfect and if omitting 
nothing material " (a?) . 

{x) FhiU. Evid. i. 396 ; see Fither v. Zone, 2 W. BL 834 ; Doe d. £van9 
V. JFalker, 16 Q. B. 28. 



( 349 ) 



CHAPTEE XI. 

EXTINGUISHMENT AND ENFRANCHISEMENT. 

Extinguishnent 

When a copyhold ceases to be held according to the 
custom of the manor, the tenure is said to be extinguished. 
This may happen either by the union in one person of a 
freehold and a copyhold interest in the same land and in 
the same right, or by enfranchisement of the copyhold 
tenure. 

An extinguishment results when the lord acquires the 
copyhold tenement by any means, as by the tenant's 
surrender, bargain and sale, release, or abandonment of 
the customary tenancy at will, or by descent, forfeiture, or 
escheat (a). In cases of acquisition by descent, forfeiture, 
escheat, or the like, where there is no act on the part of 
the lord showing an intention to destroy the tenure, there 
will not be an absolute exting^uishment but only a sus- 
pension of the tenure, so long as the lord does not alter 
the demiseable nature of the tenement by creating a 
common-law interest in it other than a tenancy at will, 
even though the lord keeps the tenement in hand for a 
period exceeding the statutory period of limitation (6). 
Upon a purchase by the lord of the copyhold there will be 
an absolute extinguishment, unless there has been a sur- 
render to the use of a trustee for him. If one of seyeral 



(a) Bl&mmerhasHt v. Huniberatoney {h) French' 9 Com^ 4 Hep. 31 a ; 

Hntt. 65 ; BwerthamU Case, 2 see Femble y. Steme, T. Bay. 165 ; 
Ventr. 345. and Watk. Copyh. i. 361, n. 



850 rHE LAW OF COPYHOLDS. 

lords of a manor purohases a copyhold tenement and is 
admitted to it with the cononrrenoe of the other lords, the 
customary estate in the tenement will be extinguished to 
the extent of his undivided interest in the manor (c). 
The copyhold interest is also extinguished when a copy- 
holder acquires from the owner of the freehold any 
common-law interest in the land, as for a term of years, 
or for an interest in remainder, whether by purchase or 
descent, " for the estate of the copyholder, being only 
at will, becomes merged by the accession of any greater 
estate" (d). Thus, if the lord of a manor demises the 
freehold of a copyhold tenement for a term of years, and 
the lessee assigns the term to the copyholder, the custo- 
mary interest will be exting^uished ; "for both these 
interests cannot exist in the same person at once, and 
consequently one of them must be determined, which of 
necessity must, be the customary estate; for the estate 
derived from the common law cannot merge in that, and 
when common law and custom come together and one or 
other must necessarily stand, the common law shall be 
preferred "(^). And so, if a copyholder takes a lease of 
the manor or becomes possessed of a legal estate therein, 
his customary estate will come to an end (/). 
Suspension of When the freehold and copyhold interests ore held by 
the same person in two different rights, the customary 
tenure is suspended, and not extinguished. Thus, where a 
copyholder married the lady of the manor, his tenure was 
suspended, while the estate in right of his wife con- 
tinued {g) ; but if the marriage has taken place since the 
1st of January, 1883, there would be no suspension of the 
copyhold tenure (A). Again, if the wife of a copyholder 
became lady of the manor, the tenure would have been 

{c) CattUy V. Arnold, 4 K. & J. 695. Newport, cited ibid, / FrenehU Caae^ 

\d) Gru. Dig. tit. 10, o. 6, s. 7. 4 Bep. 31 a. 

($) LaneU Caae, 2 Bep. 16 b, {g) Co. Gopyh. a. 62; Afwn,y 

17 a; Gru. Big. tit. 10, o. 6, s. 8. Gro. Eliz. 8. 

(/) Antm,, Moo. 186 ; Side v. (A) 46 & 46 Vict. c. 75, a. 2. 



EXTINGUISHMENT AND ENFRANCHISEMENT. 351 

suspended ; but if the wife's title to the manor has accrued 
to her since the 1st of January, 1883, there would be no sus- 
pension {%). Where the lord of a manor, who was tenant 
for life only, purchased the fee of certain customary free- 
holds held of the manor, it was held that the effect of the 
union was to suspend the seignory during the life of the 
lord, but that on his death intestate the seignoiy revived 
and passed to the remainderman, while the fee of the cus- 
tomary freeholds descended to his heir-at-law {k). 

If the extinguishment takes place, the copyhold will at Effect of 
once become port of the manor, discharged of the customary ^^f^ 
tenure and of aU incidents and privileges belonging 
thereto (/), and subject, of course, to all incumbrances and 
limitations affecting the residue of the manor (m). Thus 
it was held that a copyhold surrendered to the use of the 
lord and his heirs would enure to the benefit of a mort- 
gagee under a previous mortgage of the manor, and that 
the equity of redemption passed under the limitations of an 
existing settlement of the estate as comprised in the mort- 
gage (n) ; and similarly it has been held that a devise of a 
manor carried with it copyholds which had been surren- 
dered to the lord subsequently to the making of the 
devise (o). But although a copyhold which is purchased 
by a lord who is only tenant for life of the manor and is 
surrendered to him and his heirs will in law become parcel 
of the manor, and subject to its limitations, yet it would 
seem the lord would have in equity a charge on the reversion 
for the amount of his purchase-money, if he can show that 
the surrender had been taken in such a form by mistake, 
and that he had the intention of preserving the benefit of 
the purchase for himself and his heirs (p). 

(0 Ibid. 8. 5. 2 Sim. & S. 579. 

(Ar) JJinffham v. WoodgaU, 1 R. (n) Doe d. Oibhm v. PotU^ 2 

& H. 32. Doagl. 710. 

(/) Dugicwth V. Radford, W. (o) Boe d. Sale ▼. Wegg, 6 T. R. 

Jon. 462. 708. 

(m) St, Foul V. Dudley (Vt^eL), {p) Day. Preo. Conv. 4th ed., 

15 Vee. jnn. 167; King v. Moody, yol. ii., pt. 1, 388 n. ; see iS^. Faul 



852 



THE LATV OP COPYHOLDS. 



Tenure 
reyiyed. 



It will be remembered that the copyhold tenure may bd 
revived after extrngoiehment, provided that no common- 
law interest other than a tenancy at will has been created 
during the merger by an owner seised in fee : but that if 
such an interest has been created, the land thereby ceases 
for ever to be demiseable by copy of court-roll (q). If, 
however, a common-law interest exceeding a tenancy at 
will has been created during tlie merger of the freehold 
and copyhold estates by a lord who is merely a limited 
owner, his act will only suspend the power of re-granting 
as copyhold during the continuance of his limited estate ; 
and on its determination the land may be re-granted as a 
copyhold by a succeeding lord(r). If the tenure is 
revived, the copyhold tenant will hold the tenement free 
from all charges and incumbrances which would have 
attached if the tenement had become part of the manor («). 



At oommon 
law. 



JEnfranchiaement 

The copyhold tenure is also extinguished by enfranchise- 
ment, which is a term specially applicable to the conversion 
of the copyhold estate in the hands of the tenant into an 
estate of freehold tenure. It results from the lord either 
conveying to the copyholder the fee simple in the tene- 
ment or releasing to him the seignorial rights. The 
methods by which copyhold lands are enfranchised may 
be arranged into two classes, namely (1) those which 
operate at common law, and (2) those which derive their 
effect from the provisions of the Copyhold Acts. 

At common law enfranchisement is effected by the con* 
veyance of the freehold to the copyholder, or by a release 
of all customs and services either by the lord of the manor 
or by the owner of the freehold of that particular tene- 



V. Dudley {Vitet), 16 Vee. jnn. 
167 ; Kinff v. Jlfoody^ 2 Sim. & S. 579. 

(q) Ante, pp. 46, 349. 

(r) Ex parte lord SenUy^ JRe 



London ^ 8, W. Sail. Co,, 29 Beay. 
311. 

{») Swayn^a Caee, 8 Bep. 63 a; 
Sneyd y. Sneyd, 1 Atk. 442. 



. KXTINQUI8HMENT AKD ENFRANCHISEMENT. 353 

ment {t). 'The same effect inaj follow from a release of 
part of the Berviees or from any transaqtion equivalent to a 
release. Thus it was held that tenant-right copyholds 
were enfranchised when the lord *^ ratified and confirmed 
to the tenant and his heirs all the customary and tenant- 
right estate, and granted that he should be discharged of 
the payment of all rents, customs, services, &c., except one 
penny yearly rent, and except suit of court and all royal- 
ties, escheats and forfeitures " (u). This was considered to 
be tantamount to a release of the copyhold services. But 
it has been held that a grant in fee by the lord of a manor 
to a copyholder of inheritance of all the woods and under- 
woods growing and to grow on the copyhold lands, where 
by the usage the lord had the right to cut the woods and 
imderwoods on all the copyhold tenements, did not operate 
as such a release (x), A deed executed by the lord and 
purporting to convey a copyhold tenement in fee will pass 
nothing but the copyhold, even although the parcels con- 
tain a description of something which does not actually 
form part of the customary tenement (y). 

It must be remembered that the enfranchisement sevens 
the copyhold from the manor, save in regard to the lord's 
right to escheat for want of heirs in the cajse of enfranchise- 
ments effected after the 16th of September, 1887. The 
enfranchising lord cannot validly reserve to himself the 
ancient rents and services, fealty, or suit of court, or create 
any new tenure of the freehold by reserving any new 
service to himself, for the owner of the enfranchised tene- ,^ ^ ^ ^ <A ^n^ 
ment must by reason of the Statute Qwea Emptorea hold 
of the next superior lord in free socage after the enfran- 
chisement (s). But it would seem that the enfranchising 
lord's right to escheat still continues where the tenement 

{t) PhiUips V. Ball, 6 C. B. N. S. Vem. 21. 

811. (y) Eext v. QUI, 27 L. T. N. S. 

(u) Doe d. Seay v. Huntington, 4 291. 

East, 271. (z) Bradshaw y. Lawson, 4 T. R. 

{x) FawVener t. FaifiUmif, 1 443. 

E. A A 



enfraiushifle. 



354 THE LAW OF COPYHOLDS. 

has been enfranohised since the 16th of September^ 1887 ; 
for it is provided by the Copyhold Act, 1887 (a), that on 
any enfranchisement taking place after that date the lord 
of the manor shall continue to be entitled in case of escheat 
for want of heirs to the same right and interest in the land 
as he would haye had if it had not been enfranchised. If 
it is agreed that the consideration for the enfranchisement 
shall consist of annual or other payments to be made by 
the tenant after the enfranchisement, such payments will 
be due from him not as rent-services, but by virtue of the 
covenants contained in the deed. 
Who oaa jq*Q Qj^Q QQj^ enfranchise a copyhold at common law, who 

has not an estate in fee in the manor, or at least a power 
to convey the fee-simple of the land to the copyholder (b). 
The practice of conveyancers, when the lord is seised in fee, 
is to make the enfranchisement by a grant of the fee, and 
not simply by a release of the seignorial rights. When 
the enfranchisement is effected under a power, the terms of 
the power must be followed. The ordinary power of sale 
of a settied manor and lands was formerly used for the 
enfranchisement of the copyholds; but questions some- 
times arose whether the power to sell the manor warranted 
the sale separately from the manor either of the lands held 
by copy of court-roll or of demesnes or freeholds which 
might have come into the lord's hands (c). It is now 
provided by the Settied Land Act, 1882 {d)y that where 
the settlement comprises a manor the tenant for life may 
sell the seignory of any freehold land within the manor, or 
the freehold and inheritance of any copyhold or customary 
land parcel of the manor, with or without any exception or 
reservation of all or any mines or minerals or of any 
rights or powers relative to mining purposes, so as in every 
case to effect an enfranchisement. If the lands are copy- 
holds for lives, the transaction between the lord and tenant 

(a) Sect. 4. (0) Day. Freo. in Gonv. 4tli ed. 

(b) Wilson y. Attm^ 1 J. & W. vol. ii, pt. 1, 388, n. 
611. (i) Sect. 3 (u). 



BXTINOni8HBiB19T AND ENFRANCHISEMENT. 856 

will partake of the nature of a sale as well as of an enfran- 
chisement, because it comprises the reversions expectant on 
the customary estate for lives. Whatever doubts may have 
formerly eiisted as to the efficacy of a simple power of 
enfranchisement in the case of copyholds for lives where 
there was not also a power of sale, it would appear that 
under the provisions of the Settled Land Act, 1882, above 
mentioned, a tenant for life is now capable of making such 
an enfranchisement. 

It has been held that the heir of a copyholder may accept Who may 
an enfranchisement before he is admitted, but it has been ^SraD<Sw- 
doubted whether this rule would apply to a devisee or sur- ™®^*- 
renderee of a copyhold before admittance {e) . If the person 
taking the enfranchisement has only an equitable interest, 
but has been de facto admitted, there can be no doubt that 
the enfranchisement would be effectual (/). Where an 
appointee under a power contained in a settlement was 
admitted to copyholds and obtained an enfranchisement to 
himself, it was held that the customary heir of the settlor 
was not entitled to object, as he had no beneficial interest 
in the property {g), A copyholder with a limited estate 
may take an enfranchisement, but it will enure to the 
benefit of the persons entitled in remainder who would 
have taken the copyhold if there had been no enfranchise- 
ment, {h). After long enjoyment as freehold, an enfran- PreBtunptioii 
chisement upon proper evidence will be presumed even ch^^ent. 
against the Crown (i). 

Enfranchisement at common law formerly necessitated Effect of en- 
the investigation of the lord's title to the manor, as the ^^^ 
copyholder by accepting an enfranchisement took the 
manorial title to the freehold, subject to all its rights 

W WiUon ▼. 4^i^, 1 J. & W. W Wynne v. Chokes, 1 Bro. 0. 0. 

611. 616. 

(/) Ihid. p. 620. (i) Bos d. Johnwn y. Ireland, U 

iff) MinUm y. Kirwood, L. B. 3 East, 280 ; In re Lidiard and Jack- 

Ch. 614. ton's and BroadleyU Contract, 42 Gh. 

Diy. 264. 

aa2 



356 THE LAW OF COPYHOLDS. 

and inoumbrances ; and this investigation was also re- 
quired on every subsequent sale of the enfranchised copy- 
hold unless it was guarded against by a special condition ; 
but it is now provided by the Conveyancing and Law of 
Property Act, 1881 {k)^ that where land of copyhold or 
customary tenure has been converted into freehold by 
enfranchisement, and there is a contract to sell and con- 
vey the freehold, the purchaser shall not have the right 
to call for the title to enfranchise; but, if produced, it 
may be well to guard against producing evidence that 
since the enfranchisement the manor has been enjoyed in 
conformity with the earlier title (/). Another great in- 
convenience attending enfranchisements at common law, 
was the practice of creating a term of years in the copy- 
hold before enfranchisement, if the lord would give licence^ 
in order to protect the land against the incumbrances on 
the freehold under the lord's title (m). Again, on an 
enfranchisement taking place at common law, the right 
which every copyholder has to examine the court-rolls is 
lost, and it is consequently necessary for the copyholder 
when enfranchising independently of the Copyhold Acts 
to stipulate for a fresh right as to the production of the 
rolls and title deeds of the manor, if he desires to preserve 
his right of inspection. But where the enfranchisement 
takes place imder the provisions of the Copyhold Acts, 
it is unnecessary to take a covenant from the lord as to 
title or for production of the manorial deeds and court- 
rolls, because the enfranchisement is valid independently 
of the lord's title, and the Copyhold Act, 1862, gives the 
owner of the enfranchised land a right to inspect the 
court-rolls and take copies (n). Another effect of enfran- 
chisement at common law is that upon a bare enfranchise- 
ment any right of common which the copyholder might 
have in the manorial wastes would be destroyed, even 

(A) 44 & 45 Vict. o. 41, s. 3 (2) ; (/) Dart, V. & P. 189. 

and see In re A ffff' Gardner, L. B. (m) Rouse, Gopyh. Enfr. 6. 

26 Ch. Div. 600. («) 16 & 16 Vict. o. 61, s. 20. 



EXTINGUISHMENT AND ENFRANCHISEMENT. ' 867 

although the conveyance of the copyhold was made " to- 
gether with all appurtenances/' unless there was an actual 
le-grant of the right of common (o) ; and such a clause of 
re-grant is in practice usually inserted in the deed of 
enfranchisement (jp). It has been seen that even if the 
right were not expressly re-granted it might subsist in 
equity (^). But where the waste over which the copy- 
holder has the right of common is not parcel of the manor, 
the right is not extinguished by enfranchisement, since it 
beloDgs to the land and not to the estate of the copy- 
holder (r) ; and so if a copyholder has from time imme- 
morial possessed a right of way over another tenement, 
and he purchases the freehold of his own tenement, the 
right of way is not lost, for as between the copyholder /M'^"^^ ^ 

and a stranger the enfranchisement only affects and alters 
the tenure (s), and the law is the same with respect to any 
other easement which belongs to the land and not to the 
copyhold estate. In a recent case it appeared that the 
practice in a manor {t) was for the lords to grant copyholds 
for three lives and to renew at a fine upon the dropping of 
any of the lives, but there was no custom binding them to 
renew. The copyhold grants did not mention a right of 
fishing, but from time immemorial the copyholders had 
enjoyed a right of angling in a stream which formed the 
boundary of the manor, and of passing over the lands of 
other tenants of the manor for that purpose, but subject 
to these rights the fishing belonged to the lords. In 1845, 
the lords enfranchised a copyhold belonging to S. which 
adjoined the river, and released in very ample terms all • 

rights of fishing and all other rights which they had 
enjoyed in reference to the enfranchised tenement. After 

(o) WorUdg y. Kingtwelly Gro. 36 b, 38 a; ^^fymMY.Pt^otfatf^, iBuls. 

Eliz. 794. 18 ; CrowderY. Oilfield, 1 Salk. 170, 

(p) Day. Preo. in Cony. 4th ed. 364. 
yd. li. pt. 1, 388, n. («) Emson y. WtUiamaon, 1 Bo. 

(g) Siyant y. Stoker ^ 2 Yenx. 260. Abr. 933. 

(r) T^rrinffham^s Ctm^ 4 Bep. (Q Ohilbolton, Soathampton. 



368 THE LAW OF OOFTHOLDS. 

this, vaxions other copyholds were enfranohiBed, and for 
nearly forty years the oopyholders and the enfranchised 
copyholders exercised the same rights as before of angling 
and going over the land of S. for that purpose. T. was 
the owner of several copyhold tenements which had been 
enfranchised since 1845. In 1885 S. set up a gate and 
prcTented T. from passing over his land to fish. T. 
acquiesced in the inteiruption until 1889, when he com- 
menced an action on behalf of himself and all other the 
owners and occupiers of copyholds and enfranchised copy- 
holds, to establish the right of angling and of passing 
over the land of S. for that purpose. It was held that by 
the enfranchisement deed of 1845 the lords gave up all 
their rights over the lands of S. without the reservation of 
a power to make to other tenants grants of rights over that 
land, that such a reservation could not be implied, as there 
was no obligation on the lords to make such grants, that 
the rights given up included the reversionary right of the 
lords to grant rights of fishing on the expiration of the 
lives for which the copyholds were held, and that the lords 
had no power to give to T. by his subsequent enfranchise- 
ment any rights over the land of S. (u). If a tenant in 
taQ in possession of copyhold land takes an enfranchise- 
ment from the lord, the effect of the enfranchisement is to 
bar the entaQ (x). Further, enfranchisement will put an 
end to all the customary incidents which formerly attached 
to the land, such as freebench, customary curtesy, and 
customary guardianship of an infant heir, and the tenant 
will hold the land free from all liability to fines, heriots, 
customary reliefs and rents, and forfeitures ; but from the 
terms of section 4 of the Copyhold Act, 1887, already 
mentioned (y), it would seem that the lord will still retain 
his right of escheat for want of heirs. 

(t«) Tilbury v. SilvOy 45 Gh. Diy. }an. 524 { £» parte School Board for 

98. Zondon, In re Hart, 41 Ch. Div. 

(a?) Dunn v. Green, 3 P. WniB. 647. 

9 ; Chalkmer t. Murkall, 2 Yee. (y) Anle, p. 364. 



EXTINGT7IBHMEKT AND ENFRANCHISEBiENT. 359 

. A deed of enfranohisement should be enrolled on the Enrolment of 
court-rolls if suoh a course is at all practicable, as CTidence ft^oHBOTient 
of the enfranchisement is thereby conveniently preserved; onoonrt-rolls, 
but if enrolment would occasion much expense, it might 
be sufficient to enter an abstract or notice of the deed on 
the rolls. If the lands are situated in a district within 
the provisions of the Local Begistry Acts (2), the deed of 
enfranchisement must be registered (a). 

Enfranchisements and commutations of manorial rights The Copy- 
are now usually effected under the Copyhold Acts. These ° °*"' 
Acts are six in number, and are collectively known as the 
Copyhold Acts, but each of them may be specifically 
referred to according to the date of its passing, as the 
Copyhold Act, 1841 (6), the Copyhold Act, 1843 (c), the 
Copyhold Act, 1844 (cT), the Copyhold Act, 1852 (e), the 
Copyhold Act, 1858 (/), and the Copyhold Act, 1887 {g). 
By the Copyhold Act, 1841, the Tithe Commissioners for Copyhold 
England and Wales were appointed commissioners for aionaref" 
carrying the Act into execution, imder the style of the 
Copyhold Commissioners, and various powers and duties 
were entrusted to them. These powers and duties have been 
continued and increased by the later Copyhold Acts. But 
it is to be observed that by the Settled Land Act, 1882 (A), 
the three bodies of Liclosure, Tithe, and Copyhold Com- 
missioners became and were thereafter to be styled the 
Land Commissioners for England, and all Acts of Farlia- 1^"^^ Com- 
ment, judgments, decrees or orders of any Court, awards, 
deeds and other documents were declared to be read and 
to have effect as if the Land Commissioners were therein 
mentioned instead of Liclosure, Tithe, or Copyhold Com- 

(2) AnU, p. 95. (6) 4 & 6 Viofc. c. 35. 

(a) Beg. v. BegUtrar of Deeds fw (c) 6 & 7 Vict. c. 23. 

Comty ofMiddletex, 21 Q. B. Div. (i) 7 & 8 Viot. 0. 56. 

555 (C. A.) ; 8. C, turn. Beg, v. Lord {e) 15 & 16 Vict. 0. 51. 

Truro, W. N. (1888) 91, 158. The (/) 21 & 22 Viot. c. 94. 

register for Middlesex is now at {g) 50 & 51 Viot. 0. 73. 

the Land Begistry Offloe : 54 & 55 (h) 45 & 46 Vict. 0. 38, s. 48 (1). 
Vict. e. 64. 



360 



THE LAW OF COPYHOLDS. 



Board of 
Agricultore. 



inissioners, as the case might be. In the Copyhold Act, 
1887, the Land Commissioners are referred to as the 
Commissioners; but by the Board of Agriculture Act, 
1889 (i), all the powers and duties of the Copyhold Com- 
missioners or the Land Commissioners for England under 
any of the Copyhold Acts were transferred to the Board 
of Agriculture, and it was provided that in the con- 
struction and for the purposes of any of the Copyhold 
Acts, the name of the Board of Agriculture is to be 
deemed as substituted for the Land Conmiissioners for 
England and the Copyhold Commissioners, and anything 
authorised to be done by, to, or before any assistant com- 
missioner of either of these named bodies of commissioners 
may be lawfully done by any officer of the Board of 
Agriculture who shall for the time being be assigi^ed by 
the Board for that purpose (k). 



General com- 
mutations. 



Scliednled 
commuta- 
tions. 



Commutation of Manorial Bights, 

With regard to the commutation of manorial rights and 
incidents affecting any freehold or copyhold and customary 
lands held of a manor, it may be mentioned that the Copy- 
hold Act, 1841, contained provisions, which are now re- 
pealed, for the general commutation of rights affecting all 
the lands in a manor by agreement made at a meeting 
between the lord and tenants. Persons calling such meet- 
ings were to be interested, if lords, to the amount of 
one-fourth of the value of the manor, and if tenants, were 
to be ten in number, or one-half of the whole number. 
The agreement was to be made by three-fourths of the 
tenants, and the lord and tenants so agreeing were to repre- 
sent three-fourths of the value of the lands concerned (l). 

The same Act, as amended by the Copyhold Act, 
1843 {m)y provided that in case a commutation should be 



(i) 62 & 58 Yiot. o. 30. 
. (k) Bid. 8. 11 (1). 
(0 4 & 5 Vict. 0. 86, 88. 13, 14, 



16—86, 37—44 ; 6 & 7 Vict. o. 23, 
8. 1 ; 7 & 8 Vict. o. 66, s. 6. 
(m) 6 & 7 Viet. c. 23, s. 11. 



SXTINQUISHMEITE AND EKFBANCHISEMENT. 361 

made between the lord and six tenants, being tenants or 
all the tenants of the manor, by an agreement which did 
not include an apportionment of the consideration for the 
commutation, such an apportionment might be made by a 
schedule to be prepared by the steward and confirmed by 
the Copyhold Commissioners (n). The provisions of the 
earlier Copyhold Acts authorising these general com- 
mutations and commutations by schedule were repealed, 
however, by the Copyhold Act, 1868 (o). But the Copy- 
hold Act, 1841, and the subsequent Copyhold Acts contain 
various provisions relating to separate commutations, both 
volimtary and compulsory, which are still in force, and 
these may be summarised as follows : 

(a) Voluntary Commutation. 

The lord of any manor, and any one or more tenant or 
tenants of such manor, whatever their interests may be, 
may, subject to the consent of the Board of Agriculture, 
enter into an agreement for the commutation of the lord's 
rights to rents, fines and heriots, or of any of these rights, 
or any other of the lord's rights affecting the land which 
is included within the provisions of the agreement. When 
more tenants than one agree to commute, the agreement 
may include an apportionment of the rent-charge, or the 
sum which may be arranged as the consideration for the 
commutation, or of the costs and expenses attending the 
commutation, and the agreement may fix the scale of the 
fees which are to be paid by the tenants to the steward of 
the manor after the agreement has been confirmed. If, . 
however, the estate of any party to the commutation is less 
than an estate of fee simple in possession, or corresponding 
copyhold or customary estate, notice in writing has to be 
given by or on behalf of such party to the person entitled 
to the next estate of inheritance in remainder or reversion 

(ft) 4 & 5 Yiot. 0. 36, s. 52. (o) 21 & 22 Yiot. o. 94, s. 2. . 



tion. 



B62 THB LAW 07 OOFYVOLDS. 

in the manor or the land affeoted by the oonunntation) as 
the case may be, so that the assent or dissent of sudi person 
may be made known in 'writing to the Board. But the 
Board may oanse further notioes to be given, or may direct 
inquiries to be made, as they think fit, before they confirm 
the agreement. In every case the commutation may be 
effected, subject to the consent of the Board, by such con- 
veyance, deed, or assurance as would be sufficient for 
carrying the commutation into effect if the lord were 
seised of the manor for an absolute estate of inheritance in 
fee simple in possession, or by an agreement to be enrolled 
or entered on the court-rolls of the manor ; but a copy of 
the conveyance or agreement must be delivered to the 
tenant, as in the ordinary case of admission to copy* 
holds (p). 
CouBidera- The consideration for the commutation may be (1) a 

rent-charge and a fine certain not exceeding in any case 
the sum of five shillings payable on death or alienation. 
Where the rent-charge exceeds the sum of twenty shillings 
it may be variable as a tithe commutation rent-charge (g). 
(2) The consideration may also be the payment of a fine 
on death or alienation. The rent-charge, or the fine pay- 
able on death or alienation, may be made subject to a 
certain increase or diminution, which may be either stated 
in the agreement or be left for ascertainment by valuers, 
in any event which may be provided for by the agree- 
ment (r). (3) In addition to these forms of consideration, 
it is provided by the Act of 1843 that the consideration 
may be, wholly or in part, the conveyance of lands, parcel 
of the same manor and subject to the same uses and trusts 
as the lands commuted, or any right to mines or minerals 
in or under such lands, or any right to waste in lands 
belonging to the manor («). (4) This was extended by 



{p)4k6 Viot. 0. 36, 8. 62. (r) 4 & 6 Viot. o. 36, 8. 62. 

{q) Ibid, ; and see 16 & 16 Vict. («) 6 & 7 Viot. o. 23, b. 1. 

0. 61, 8. 41. 



k 



SXriKGUISHHSNT AKD BKTRAKCHISBMBirr. d63 

the Copyhold Act, 1844^ to other landfi and minerals, pro- 
vided that the same can be oonveniently held with the 
manor in the opinion of the Board of Agriculture, and are 
settled to the same uses and trusts as the manor in which 
the commutation takes place, or as near thereto as the 
differences of tenure will permit ; and by the same section 
the owners are empowered to convey such lands and 
minerals for the purposes of the commutation (t). 

Where the tenant pays any money as consideration for a 
commutation, he may, with consent of the Board of Agri- 
culture, charge upon the land commuted the sum of money 
so paid (u). In cases where land is conveyed as the con- 
sideration for a commutation, and the person conveying the 
same is absolute owner of the land so conveyed, he may, 
with the consent of the Board of Agrioultnre, ohige upon 
the land commuted such reasonable sum as in the judgment 
of the Board may be equivalent in value to the land so 
conveyed (x). 

The commencement of any commutation may be fixed Gomtnence- 
by the memorandum of confirmation by the Board of WAHnr!^"^' 
i^rioulture of the insirument whereby the oommutation Ib ^ 
effected, but, in default of being so fixed, the commutation 
takes effect as from the day of confirmation (y). 

If the original agreement does not comprise the com- Supplemental 
mutation of all the manorial rights under which the lands ^™™'^****®^ 
are held, the lord and the tenant or tenants for the time 
being may from time to time enter into additional or 
supplemental agreements as to commutation. The supple- 
mental commutation may be made in respect of a considera- 
tion either the same as, or differing from, the original 
consideration, and by the supplemental agreement the 
parties may agree to substitute one form of consideration 
for another (s). 

An apportionment of the conmiutation rents and fines Apportion- 

ment of com- 
(0 7 & 8 Viot 0. 56, 8. 5. (y) Ihid. 8. 18. 

(«) 21 & 22 Viot 0. 94, 8. 21. {z) 4 & 6 Yiot. o. 35, 8. 54. 

(«) Ibid. B. 22. 



364 



THE LAW OF COPYHOLDS. 



Bemedies of 
lord. 



mutation may be efEected, whenever necessary, by an entry of appor* 

^^' tionment entered on the eourt-roUs by the steward, when 

required to do so by any warrant or authority in writing 

under the hands of the lord and tenant which states the 

terms of the apportionment (a). . 

Commutation The nature of the commutation rent-charge, and the 

rent-oharges. . . j* ir. x j» xt. ^ -i. 

provisions respecting the payment of the money for its 
redemption or purchase, will be explained under the 
heading of Voluntary Enfranchisement. 

For the recovery of commutation fines and for enforcing 
admittances to lands held subject to commutation fines, the 
lord is entitled, in addition to his remedies for enforcing 
admittances generally and for the recovery of fines arbi- 
trary, to proceed in the manner provided by the Act 11 
&eo. IV. & 1 Will. rV. c. 65, with respect to the admit- 
tances of infants and the recovery of fines in such admit- 
tances (i). 

After a commutation the lands continue to be copyhold 
and to pcu9S by surrender and admittance in all cases in 
which they shall have previously been so held and con- 
veyed : but the lands are thenceforth to be free from all 
customary modes of descent and customs relating to free- 
bench, dower, or curtesy, and in those respects to be subject 
to the law applicable to freehold lands held in common 
socage, saving the interests of persons married before the 
commutation, and saving the custom of gavelkind in 
Kent (c). But the Copyhold Act, 1841, specially provides 
that commutations are not to affect the rights to fairSy 
markets, appointments, franchises, escheats, sporting, fish- 
ing, mines, minerals, quarries, or any other manorial rights, 
unless expressly commuted under the Act {d). For the 
piLrpose of getting these reserved minerals, the tenants may 
grant to the lord rights of entry and way and other ease- 



Effect of com 

mutation. 



(a) 4 & 5 Vict. 0. 85, B. 65 ; and 

Bee 6 & 7 Vict. o. 23, bb. 4, 5, and 6. 

(4) 4 & 6 "^ct. 0. 86, BB. 47—49, 



63 ; 60 & 61^Viot. o. 73, b. 16. 
{e) 4&5 Tiot. 0. 36, bb. 79, 80. 
Id) Ibid. B. 82. 



BXTINGUISHMENT AND BNFBANCHISBMENT. 366 

mentSy it being suffioient to mentioii the grant and eon-' 
siderationy if any, in the agreement for commutation (e). 

Voluntary Enfranchisement. 

Of the various methods or '^schemes" of enfranchise- 
ment deriving effect from the provisions of the Copyhold 
Acts, the first to be mentioned is voluntary enfranchise- 
ment. Yarious provisions were contained in the Copyhold 
Act, 1841 (/), for facilitating this method of enfranchise- 
ment, and although many of them have been repealed or 
amended by the subsequent Acts which have rendered 
enfranchisement compulsory at the option of either the 
lord or the tenant, yet some of the earlier provisions are 
still in force and may be resorted to when occcusion requires. 
The provisions of the Act of 1841, as amended by the 
subsequent Acts, may be summarised as follows. 

The lord of a manor, whatever may be the amount or 
nature of his estate or interest therein, may at any time 
or times enfranchise with the consent of the Board of 
Agriculture all or any of the lands held of his manor, and 
any tenant, whatever may be his estate or interest in his hold- 
ing, may with the Uke consent accept the enfranchisement. 
If, however, the nature of the lord's interest is less than an 
estate of fee simple in possession, notice in writing of the 
intended enfranchisement must be given by the lord or on 
his behalf to the person entitled to the next estate of 
inheritance in remainder or reversion, so that the assent 
or dissent of such person may be stated in writing to the 
Board of Agriculture when the deed, by which the enfran- 
chisement is to be carried into effect, is sent to the Board 
for approval. If the interest of the tenant is less than the 
copyhold or customary estate corresponding to a fee simple 
in possession in freeholds, a similar notice has to be given 
to the person entitled to the next estate in remainder or 

{e) Ibid. s. 84. (/) * & 6 Vict. c. Z6. 



366 THB LAW OF OOFTHOLBS. 

reversion {g)^ tmless the tenant enfranohising pays the 
whole price of the enfranchisement, so that no part of the 
price or of the expenses of the enfranchisement falls upon 
the land (A). If the person entitled to the notice is under 
any legal disability or is abroad, the notice is to be given 
to the guardian, trustee, committee of the estate, or attor- 
ney of such person as the circumstances of the case may 
require, but if such person is unknown or not ascertained, 
then the notice is to be given to a fit person nominated by 
the Board for the purpose of receiving the notice, and of 
assenting to or dissenting from the proposal to enfranchise. 
Whenever there is dissent in writing, the Board are to 
withhold their consent until satisfied that the proposed 
enfranchisement is not open to objection (f). 

For the purposes of the Copyhold Act, 1841, it was 
declared that any person or persons for the time being 
filling the character of lord, or acting in such capacity, 
should be deemed lord of the manor, whether such person 
or persons were rightly or lawfully entitled to fill such 
position or to act in such capacity or not (*) ; and now 
the Copyhold Act, 1887, provides that this iiiterpretation 
of the term " lord " is to have effect in all the Copyhold 
Acts, xmless the context shows that the word was intended 
to be used in a different signification (/). The Act of 
1887, however, further provides that previously to any 
enfranchisement taking effect under the Copyhold Acts 
either by award or deed the Board, if they see fit, may 
require the lord or steward of any manor to make a 
declaration in such form as they shall direct, stating who 
are the persons for the time being filling the character or 
acting in the capacity of lord. The Board are empowered 
to accept such a declaration for the purposes of enfnmchise- 
ment, but if they do not consider that the evidence fully 
and truly discloses all such particulars as are necessary, or 

(^) 4 & 5 Vict. 0. 86, B. 56. For (i) 4 & 5 Vict. o. 86, s. 66. 
a form of the notioe, see Appendix. {k) 4 & 6 Yiot. c. 36, b. 102. 

(A) 6 & 7 Vict. 0. 23, 8. 13. (I) 60 & 61 Vict. o. 73, s. 49. 



BXTINGUI8HMENT AND ENFRANCHISEMENT. 



867 



if no declaration is made, or if the lord refoses or declines 
to give such evidence as the Board deem proper and neces- 
sary to show a satisfactory primA facie title in the lord, the 
Board may, if they think that the justice of the case 
requires it, direct that the compensation for enfranohise- 
menty when a gross sum of money, shall be paid into 
court in the manner prescribed by the High Court Funds 
Bules (m). 

The word " tenant " was defined in the Act of 1841 as 
comprising all persons holding by copy of court-roll or as 
customary tenants or holding lands subject to any manorial 
rights, and whether held to them and their heirs, or granted 
to two or more to be held in succession or for life or lives 
or years (n). By the Copyhold Act, 1862, a surrenderee 
by way of mortgage under a surrender entered on the 
court-rolls in possession or in receipt of the rents and 
profits of land is declared to be deemed a tenant so as to 
be entitled to obtain or join in obtaining and effecting an 
enfranchisement and in redeeming rent charges under the 
provisions of the Copyhold Acts by and with the approba- 
tion of the Board of Agriculture (o). When land is held 
in undivided shares, the person for the time being in 
receipt of at least two-thirds of the value of the rents and 
profits of such land is the tenant for all the piu:poses of the 
Copyhold Acts {p). The Copyhold Act, 1887, enacts that 
the word " tenant," when occurring in the Copyhold Acts, 
is to be taken as comprising all persons holding lands 
subject to any manorial right or incident, unless the 
context shows that the term is to be used in a different 
sense {q). In manors where the fines are certain and it is 
the practice for the copyholders in fee to grant derivative 
interests to persons who are admitted as copyholders of the 
manor in respect of such interests, under the provisions of 
the Act of 1887 the person who is admitted or enrolled in 



(m) 50 & 61 Yiot. c. 73, b. 32. 
(ft) 4 & 5 Vict. 0. 36, B. 102. 
(0) 16 & 16 Yiot. 0. 51, 8. 43. 



{p)2l &22Viot.o. 94,8. 38. 
(si) 60 k 51 Yiot. 0. 73, 8. 49. 



868 • THE LAW OF COPYHOLDS. 

respect of the inkeritanoe will be the tenant for the purpose 
of enfranchisement (r). 

The provisions of the Copyhold Act, 1841 («), were 
declared by the Copyhold Act, 1843 (f), to extend to all 
lands held by copy of court-roll, or by a custom of the 
manor for life or liyes or for years, whether the tenant 
had or had not a right of renewal ; but it is to be noted 
that the provisions of the Copyhold Acts as to. the com-' 
pulsory enfranchisement do not extend to any copyhold 
lands held for a life or lives or for years, where the tenant 
has not a right of renewal (u) ; and that as regards both 
voluntary and compulsory enfranchisements, these Acts do 
not apply to any manors belonging either in possession 
or reversion to any ecclesiastical corporation or to the 
Ecclesiastical Commissioners for England, in which the 
tenant has not a right of renewal (x). In any other 
manors belonging to any ecclesiastical corporation, with 
the exception of Christ Church, Oxford (y), or to the 
Ecclesiastical Commissioners, enfranchisements, whether 
voluntary or compulsory, may be effected under the pro- 
visions of the Copyhold Acts or under the Episcopal and 
Capitular Estates Act, 1851 (s), as amended and continued 
by subsequent Acts (a), in one of which provision is made 
for ascertaining whether the tenant has a right of re- 
newal (b). The subject of enfranchisement in ecclesiastical 
manors will be dealt with later. 
How effected. A volimtary enfranchisement may be effected, with the 
consent of the Board of Agriculture, by such an assurance 
as would have been adopted for effecting an enfranchise- 
ment if the lord was seised of the manor for an absolute 
estate of inheritance in fee simple in possession (c) ; but 

(r) 60 & 61 Viot. o. 73, b. 47. o. 44, s. 31. 

(«) 4 & 6 Vict. o. 36. {z) 14 & 16 Viot. c. 104. 

(0 6 & 7 Vict. 0. 23, 8. 15. (a) 17 & 18 Vict. c. 116; 23 & 24 

(m) 15 & 16 Vict. c. 61, 8. 48. Vict. c. 124 ; 66 & 66 Viot. o. 60. 

{x) 21 & 22 Vict. o. 94, s. 4. (b) 17 & 18 Vict. o. 116, 8. 6. 

(l^) Ibid, 8. 61 ; see 21 & 22 Viot. (c} 4 & 6 Viot. o. 36, b. 67. 



SXTINQU18HMENT AND EN^RAKCHISEMBNT. 369 

the usual practice in cases conducted Ibef ore the Board 
now seems to be that the Boiard ' frame an award of 
enfranchisement in such a form as they consider neces- 
sary (d). The deed or award, as the case may be, will 
have to be stamped as a " conveyance on sale " in accord- 
ance with the provisions of the Stamp Act, 1891 (e). 

The consideration may be (1) any sum or sums of Conmderation. 
money payable forthwith or at a future time, and either 
fixed by the parties themselves in writing or ascertained 
by a valuer or valuers appointed by them in writing (/), 
or (2) either wholly or partially an annual rent in fee to 
be thenceforth charged on the lands to be enfranchised, 
either fixed or varying with the price of com in the same 
way as the tithe rent-charge (g) ; (3) the consideration, as 
in the case of a voluntary commutation, may consist wholly 
or in part of lands, parcel of the same manor, and subject 
to the same uses and trusts as the lands enfranchised (A), 
or (4) of any rights to mines and minerals in or under 
such lands, or of a right to waste in lands belonging to the 
manor (i), or (5) wholly or in part a conveyance of lands 
or of any right to mines or minerals, although not parcel 
of nor situate in or under the lands of the same manor as 
the lands enfranchised, provided they can in the opinion 
of the Board be held conveniently with the manor, and 
are settled to the same uses and trusts as the manor, or as 
near thereto as the differences of tenure will admit, the 
owners being authorised by the Act to convey such Ian Ji 
and minerals for the purposes of the enfranchisement {k). 

The payment of moneys due for the consideration or Provisions as 

.. i»i« jj»Ji-i J to payment of 

compensation on enfranchisement, oriorthesaleorreaemp- consideration 
tion of a rent-charge is to be made as follows. Where n^oney, &c. 
the lord is seised of the manor for an estate of fee 

(rf) 60 & 61 Vict. 0. 78, s. 22. (^) 6 & 7 Viot, o. 23, s. 1 . 

(e) 54 & 66 Vict. c. 39. See (A) Ibid, 

Appendix. (i) Ibid, 

(/) 4 & 6 Vict. 0. 36, B. 66 ; (*) 7 & 8 Vict. o. 65, s. 6 
60 & 61 Viot. 0. 73, s. 8. 

E. B B 



370 THE LAW OF COPYHOLDS, 

simple in possession, or where lie has power, as trustee 
for sale or otherwise, to give an eiSeotnal discharge for 
sxioh money, the payment is to be made to him or his 
heirs or assigns (/), and his or their receipt will be a 
sufficient discharge for the amount, and will exonerate the 
person making payment from all liability as to its applica- 
tion, and from being answerable for its misapplication or 
non-application {m). Where, however, the lord for the 
time being was entitled to a limited estate or interest only 
in the manor, or was under any legal disability, it was 
provided by the Copyhold Act, 1841, as amended by the 
Copyhold Act, 1843, that any money paid for enfranchise- 
ment might at the option of the person or persons for the 
time being entitled to the manor be paid either into the 
Bank of England, pursuant to the method prescribed by 
any Act for the time being in force for regulating moneys 
paid into the Court of Chancery, or to the trustees acting 
under the wHl, conveyance or settlement, under which the 
lord, having such limited interest, should hold or be 
entitled to or interested in the manor, or if there were no 
such trustees, then into the hands of trustees to be 
nominated under the hands and seal of the Copyhold 
Commissioners (n). It is now, however, provided by the 
Copyhold Act,* 1887, that in every case where land is 
enfranchised by award of the Board of Agriculture or by 
deed with their consent, the lord for the time being, 
although his estate in the manor is only a limited one, 
shall be able to give a complete discharge for money 
payable as compensation, so as to relieve the .person or 
persons paying the amount from all responsibility for its 
application, and in such cases the compensation money 
shall be paid by the recipient in such manner as the 
Board having regard to the provisions of the Copyhold 
Acts shall direct (o). The Act of 1887 also provides 

(/) 4 & 5 Vict. 0. 36, B. 73. («) 4 & 5 Vict. o. 35, 88. 73—75; 

(m) Ibid, 8. 78 6 & 7 Viot. o. 23, B. 14. 

(o) 50 & 51 Vict. 0. 73, 8. 25. 



EXTINGUISHMENT AND ENFKANCHISEMENT. 371 

Aat in bases of enfranchisement by agreement between 
the parties or otherwise without reference to the Board of 
Agrioultm*e, where the compensation does not exceed 500/. , 
the lord for the time being shall be able to give a com- 
plete discharge, if he makes a declaration in writing stating 
the particulars of his estate or interest in the manor, and 
showing himself to be entitled to receive such money for 
his own use. If he is not so actually entitled, he is to be 
deemed as having received such money as a trustee for the 
persons who are so entitled, and if his declaration is false, -' 
he will be Uable to the penalties attached to a false 
statutory delaration (p). Accordingly, in cases of en- 
franchisement by agreement without reference to the 
Board of Agriculture, where the compensation money 
exceeds 500/., and the lord's estate in the manor is a 
limited one, it appears that recourse must still be had to 
the provisions of the Copyhold Act, 1841, as amended by 
the Copyhold Act, 1843, by the person paying the com- 
pensation money in order to obtain a complete discharge. 

If any enfranchisement consideration money is paid to Bemedies 
a lord who is not entitled, under the provisions of the ^^v^??l 
Copyhold Acts, to receive the same, or whose title is after- oonaideration 
wards proved to be bad or insufficient, the rightful owner ^^Y^t^^ ^ 
of the manor and his representatives are entitied to recover hftving title, 
against such lord or his representatives the amount or 
value of such consideration money as money had and 
received to the use of the rightful owner, and interest 
tiiereon at the rate of 51. per cent, per annum from the 
time when the titie is proved to be bad or iiisufficient, and 
it is provided that if any tenant or person claiming to be 
tenant is after payment by him of any enfranchisement 
consideration money evicted by an adverse claimant from 
the lands enfranchised, he is entitied to claim the repay- 
ment of the consideration money against the lands, and 
the amount will be a charge upon the lands enfranchised, 

(p) 60 & 61 Viot. 0. 73, a.9B. 

bb2 



372 



THE LAW OF COPYHOLDS. 



Disposal of 
compensation 
mone^ when 
paid into 
haakf &o. 



WlienooDsi- 
deration a 
rent-oharge. 



and will cany interest at the rate of 4/. per cent, from the 
time of eviction (q). 

The manner in which the compensation money may be 
applied when it has been paid into the bank or to the 
trustees, whether acting under the will, conveyance or 
settlement under which the lord having only a limited 
interest holds the manor, or nominated by the Board of 
Agriculture, will be mentioned later under the head of 
oompulsory enfranchisement. 

When the enfranchisement is made in consideration of a 
rent-charge, the following provisions are now appUcable. 
If it is agreed that the rent-charge shall vary with the 
price of com, it is to be calculated upon the same averages 
and to be variable in the same manner as a tithe com- 
mutation rent-charge (r). The rent may be granted to 
the same uses and trusts as those affecting the manor, and 
will thereafter be a rent service parcel of the manor, and 
appendant and appurtenant to it («). By the Copyhold 
Act, 1858, it was provided that the commencement of any 
rent-charge might be fixed by the memorandum by which 
the Copyhold Commissioners confirmed the instrument of 
enfranchisement, or in default of being so fixed the com- 
mencement was to take place on the day of confirmation ; 
and the same Act gave the Commissioners power to fix the 
day when the half-yearly payments of the rent-charge 
should commence to be calculated (t) ; but now under the 
provisions of the Copyhold Act, 1887, after January 1st, 
1888, every rent-charge, no matter when created, is pay- 
able half-yearly on the 1st day of January, and the 1st 
day of July in every year; and if any enfranchisement 
takes pleu^e between these half-yearly days of payment in 
any year, a proportionate payment is to be made on the 
first of these half-yearly days of payment following the 
date of the deed of enfranchisement in respect of the 



(9) Id & 16 Viot. 0. 61, 8. 47. 
(r) 21&22yiot. 0. 94, s. 11. 



(#) 6 & 7 Viot. 0. 28, 6. 2. 
(0 21 ft 22 Viot. 0. 94, 8. 18. 



EXTINGUISHMENT AND ENFRANCHISEMENT. 



:378 



'interval which has elapsed since the commencement of the 
Tent-charge (u). As the provisions in the Copyhold Acts 
relating to the recovery, incidence, redemption and appor- 
tionment of rent-charges apply equally to voluntary and 
compulsory enfranchisement, they will be considered later 
under the head of compulsory enfranchisement. 

The Acts of 1843, 1844, and 1862 contained various Consideraticn 
provisions relative to the charging of enfranchisement ^Jf ^^ 
moneys on land, but these provisions were repealed by the 
Act of 1868 (ar), which enacts that whenever by the Copy- 
hold Acts power is given or an obligation attaches to any 
person to pay money as consideration or compensation for 
enfranchisement or commutation, such person may, with 
the consent of the Board of Agriculture, charge upon the 
land enfranchised or commuted the sum of money which 
has been so paid (p). The Act of 1887 has increased this 
power by providing that the owner of any land enfranchised 
under the Copyhold Acts may, although his estate is only 
a limited estate, charge the land enfranchised with the 
compensation money paid for the enfranchisement and 
also with the expenses attending the enfranchisement, or 
with any part of the compensation money or expenses, 
together with interest not exceeding 5L per cent, per 
annum, or by way of terminable annuity calculated on 
the same basis (s). These provisions will be considered in 
detail under the head of compulsory enfranchisement. 

If the consideration for the enfranchisement consists li oopsidera- 
of land which is subject to any existing lease, the person ^^ " 
to whom such lands are conveyed is at once placed in the 
position of reversioner on such lease and may distrain for 
the rent and enforce the covenants («). 

The effect of an enfranchisement of land under the Effect of 
voluntary clauses of the Copyhold Acts is the same as in ment. 
a compulsory enfranchisement, and the subject will ac- 



(m) 50 & 51 Viot. 0. 73, b. 15. 
(x) 21 & 22 Viot. 0. 94, s. 2. 
(y) Ibid, 8. 21. 



(z) 50 & 51 Viot. 0. 73, s. 23. 
(a) 6 & 7 Viot. 0. 23, b. 9. 



374 



TOTS LAW OP COPTHOLDB. 



oordinglj be dealt vnih later ; but in regard to a Yolimtar^ 
enfranchiBement, it is to be noted that in order to prevent 
the necessity of inquiring into the lord's title^ it is enacted 
by the Copyhold Act, 1841, that all lands enfranchised 
under that Act shall remain under the same title as that 
under which they were held at the time of enfranchise- 
ment, and shall not be subject to any estates, incumbrances, 
&c., affecting the manor of which they were held {b) ; and 
all mortgages affecting the land shall become mortgages 
of the freehold, if the consideration for enfranchisement 
shall have been paid off, or if it is not so paid off, shall 
become mortgages of the equity of redemption, subject to 
the charge of the consideration and interest {c). 

If at the time when the land is enfranchised it is held 
by a third person under a lease, the person entitied to the 
enfranchised land has the reversion on the lease and may 
distrain for the rent and enforce the covenants (d). 



Compulsory Extinguishment of Manorial Eights and 
Incidents affecting Lands of any Tenure. 

By the Copyhold Act, 1862, power was given to the 
lord or tenant of any freehold or customary freehold lands 
held of a manor and liable to heriots, where a heriot be« 
came due on or after the 1st of July, 1853, to require and 
compel the extinguishment of all claims to heriots and the 
enfranchisement of the lands which were subject thereto (e). 
The provisions of the Act of 1852 were repealed by the 
Copyhold Act, 1858, which conferred larger powers (/) ; 
but these powers are now superseded by the provisions of 
the Copyhold Act, 1887, which enacts that any lord or 
tenant or owner (including therein any person entitied to 
the land for any term of years originally granted for 
ninety-nine years or upwards) of any land liable to any 



{b) 4 & dlVict. 0. 85, 8. 64. 

le) Ibid, b: SI. 

(iQ 6 & 7 Yiot. 0. 23, 8. 10. 



{e) 15 & 16 Yiot. 0. 51, a. 27. 
(/) 21 & 22 Vict 0. 94, as. 2, 7. 



EXTINGUISHMENT AND ENFEANCHISEMENT. 375 

heriot, or to any quit rent, free rent, or other manorial 
incident whatsoever, may require and compel the extin- 
guishment of such rights or incidents and the release and 
enfranchisement of the land. The same proceedings are 
to be taken to effect a compulsory extinguishment of 
manorial rights and incidents as are taken in the case of 
compulsory enfranchisement, or as near thereto as the 
nature of the case will admit {g). The subject will, there- 
fore, be considered under the head of compulsory enfran- 
chisement. It may, however, be mentioned here that a 
compulsory extinguishment of manorial rights and inci- 
dents does not affect the estate or rights of the lord or 
ten£wit to any mines or minerals under the land, nor any 
franchises or sporting rights belonging to the lord, unless 
with the express consent in writing of the lord or tenant, 
as the case may be {h) . 

Compuhory Enfranchisement, 

By the Copyhold Act, 1852 (i), enfranchisement was 
made compulsory at the instance of either the lord or the 
tenant. At first the compulsory powers were applicable 
only where the admittance to the copyhold took place on 
or after the 1st of July, 1853, and the fine or ftaes and 
fees consequent on the admittaoice had been duly paid or 
tendered (A) ; but by the Copyhold Act, 1858, power was 
given to both the lord and tenant to compel the enfran- 
chisement of land to which the last admittance had taken 
place prior to the 1st of July, 1853 (/). In this latter 
case, however, the tenant was not entitled to require 
enfranchisement until he had paid or tendered such fine, 
and the value of such heriot, as would have become due 
and payable in the case of an admittance or enrolment on 
alienation subsequent to the 1st of July, 1853, and also 

iff) 60 & 61 Viot. c. 73, SB. 7, 49. (») 16 & 16 Vict. c. 61. 

(A> IM. 8. 7; 16 & 16 Viot. (*) Ibid. s. 1. 

0. 61, 8. 48. (I) 21 & 22 Viot. c. 94, 8. 6. 



376 THB LAW OF COPYHOLDS. 

two-thirds of the sum to which the steward would have' 
been entitled for fees in respect of such admittance or 
enrolment (m). The Acts of 1858 and 1887 have consider- 
ably altered the methods for effecting a compulsory enfran- 
chisement provided by the Act of 1852.. 

The provisions of the Copyhold Acts as to enfranchise- 
ments do not extend to any manors belonging either in 
possession or reversion to any ecclesiastical corporation, or 
to the Ecclesiastical Commissioners for England, when the 
tenant has not a right of renewal (n), and there are 
special provisions as to enfranchisements in Crown manors, 
and manors which axe held in joint tenancy with the 
Crown, which will be mentioned later; but with these 
exceptions the term " lord," when used in the Copyhold 
Acts in relation to compulsory enfranchisement, extends 
to and includes the lord or lords of any manor, whether 
seised for life or in tail or in fee-simple, and all ecclesi- 
astical lords seised in right of the church or otherwise, 
and lords-farmers holding under them, and any body 
politic, corporate or collegiate, and all lords seised of any 
manor, whether they have or have not an absolute power 
of selHng or disposing of the same (o), and also includes 
any person for the time being filling the character or acting 
in the capacity of lord, whether rightfully or lawfully 
entitled to fill or act in such character or not (p). 
Enfranohifle- In all cases where enfranchisement is required by the 
instance of loiAy the tenant may require the Board of Agriculture to 
the lord. satisfy themselves in such way and by such evidence as 
they shall see fit of the title of the lord to the manor {q) ; 
and in any case the Board may, if they think fit, require 
the lord or steward to make a declaration in such form as 
they may direct, stating who are the persons for the time 
being filling the character or acting in the capacity of lord, 

(m) 21 & 22 Vict. o. 94, s. 6 ; 60 (p) 60 & 61 Vict. c. 73, b. 49 ; 

& 61 Vict. 0. 73, s. 9. 4 & 6 Vict. o. 36, 8. 102. 

(n) 21 & 22 Viot. o. 94, 8. 4. [q) 16 & 16 Yiot. o. 61, 8. 28 

(o) 16 & 16 Vict. c. 51, 8. 62. 



EXTINGUISHMENT AND ENFBANGHISEMENT. 87? 

and the Board may accept such declaration^ biit if they do 
not consider it satisfactory, they may order the com- 
pensation when a gross sum of money to be paid into 
Court (r). 

If the lord is under age, or is a lunatic, his g^uardian or If tibe lord is 
the committee of his estate has full power to do on his behalf ^^ JS. ^^ 
anything which may be done or is required to be done 
under the provisions of the Copyhold Acts by the infant 
or lunatic (s). 

If a married woman is lady of the manor, she is for If the lady of 
the purposes of the Copyhold Acts to be deemed a, feme am^^^" 

sole (t). woman. 

Where trustees are lords of a manor, and one or more If tmsteea 
of them shall be abroad or incapable of acting or shall "®"'™- 
refuse to act, any proceedings necessary for effecting any 
enfranchisement under the Copyhold Acts may be done 
by the other trustee or trustees, as the case may be (u). 

A lord may act on his own behalf, or may appoint any steward 
person other than his steward to act for him, but unless ^^^"^** 
and until he gives written notice to the tenant and the 
Board that he intends to act for himself, or that he has 
appointed the person specified in the notice to act for him, 
the tenant and the Board may treat the steward of the 
manor as the lord's agent for receipt of notices, making of 
agreements, and all other matters relating to enfranchise- 
ment, but without special authority the steward cannot 
consent on behalf of the lord to dealings with the rights 
as to mines and minerals mentioned in sect. 48 of the 
Copyhold Act, 1852 (x). 

If an agent is appointed by the lord, the appointment iLppointment 
should be by a power of attorney made in writing under lorSf ^ ^ 
the lord's hand, or in the case of a corporation aggregate 
being lord under the common seal of such corporation, 

(r) 60 & 51 Viot. o. 73, s. 32. 819 ; 50 & 51 Viot. o. 73, 8. 39. 

For a form of tlie declaration, see (^) 50 & 51 Viot. o. 73, s. 39. 

tlie Appendix. (m) Ibid, 8. 40. 

(«) Grifffft y. Oibton^ 14 W. B. («) Ibid. 8. 33. 



878 THB LAW OP OOPYHOLDS. 

and in the form provided by sect. 39 of the Copyhold Aoty 
1858. Every agent so appointed has full power in the 
name and on behalf of his prinoipal to concur in and 
execute any agreement or application or other document 
arising out of the execution of the Copyhold Acts, until his 
power has been revoked by a notice under the hand or the 
common seal of the lord, as the case may require, delivered 
to the Board of Agriculture. The power of attorney, or 
a copy thereof authenticated by the signature of two 
credible witnesses, should be sent to the office of the 
Board (y). The document is not dhaj^eable with any 
stamp duty (z). 

Death of lord. The death of the lord after the commencement of any 
proceedings for enfranchisement under the Copyhold Acts 
does not cause an abatement of the proceedings, which 
will be continued on the same footing as if the enfranchise- 
ment had been effected immediately after their commence* 
ment, and if any fresh admittance or enrolment is necessary 
in consequence of the lord's death, it must be made without 
payment of etny fine, relief, or heriot (a). It may be stated 
that all rights which are conferred and all liabilities which 
are imposed by the Copyhold Acts upon a lord are to be 
deemed as conferred or imposed upon his successors in titie, 
unless a contrary intention appears (b). 

Tenant. Before a copyhold tenant can require enfranchisement 

he should be admitted or be entered as tenant upon the 
court-roll, and he must have paid or tendered the fine or 
fines and fees payable in consequence of his admittance or 
enrolment ; but if his admittance or enrolment was prior 
to the 1st of July, 1853, he cannot compel enfranchisement 
until he has paid or tendered such a fine, and the value of 
such ft heriot, as would have been payable on admittance 
or enrolment on alienation subsequent to the 1st of July, 
1853, together with two-thirds of the sum to which the 

(y) 21 & 22 Tict. c. 94, 88. 89, 40. {a) 50 ft 61 Viot. o. 73, 8. 31. 

(s) 15 & 16 ^ct. 0. 51, 8. 50. (b) Ibid. 8. 38. 



EXTINGUISHMBKT AND SKFRAKCHISEMSNT. 376 

steward would haye been entitled for fees in respeot of 
Buoh admittance or enrolment (c). With respeot to free- 
hold lands, inoluding lands desoribed as customary free- 
holds in the Act of 1858, for which heriots may be due by 
custom, it was provided by sect. 7 of the Act of 1868, 
that at any time after any such heriot should be due and 
payable, the tenant might require the extinguishment of 
the lord's cltdm to heriots and the enfranchisement of the 
land which was subject to it in the same way as if the 
land were copyhold; and by sect. 6 of that Act it was 
provided that if the last heriot should have become due or 
payable before the 1st of July, 1853, the tenant could not 
require enfranchisement until he had paid or tendered the 
value of such a heriot as would have become due or 
payable in the event of admittance or enrolment on 
alienation subsequent to that date, and also two-thirds 
of the sum to which the steward would have been entitled 
for fees in respect of such admittance or enrolment. 
Sect. 7 of the Act of 1868 has been repealed by the Copy- 
hold Act, 1887 (d), which now provides (e) that any tenant 
or owner, including any person entitled to the land for 
any term of years originally granted for 99 years or 
upwards, of any land liable to any heriot or to any quit 
rent, &ee rent, or other manorial incident whatsoever, 
may require and compel the extinguishment of such rights 
or incidents, and the release and enfranchisement of the 
land subject thereto, and the same proceedings shall there- 
upon be had as are in the Copyhold Acts mentioned with 
reference to the enfranchisement of copyhold land, or as 
near thereto as the nature of the case wiU admit. It 
would appear, if there has been no admittance or enrol- 
ment since the 1st of July, 1863, that the provisions of 
the Act of 1858 as to the payment of an additional heriot 
and the fees in respect thereof will stiU be applicable. 

{e) 16 & 16 Vict. 0. 61, b. 1 ; (d) Sect. 61. 

21 & 22 Yhst. 0. 84, 8. 6; 60 ft 61 {e) Sect. 7. 

Vict. 0. 73, 8. 9. 



380 



THE LAW OF 00PTH0LD8. 



Mortgagee in 
posseasion 
may oompel 
enfranchiae- 
ment. 



Land held in 

nndiyided 

flliares. 



Eveiy tenant 
after Decem- 
ber Slst, 1887, 
entitled to 
receive notice 
of hia right to 
enfranomse. 



As already mentioned in connection with voluntary enr 
franohisement, a surrenderee by way of mortgage under 
a Burrender entered on the court rolls in possession, or in 
the receipt of the rents and profits, Is deemed to be a 
tenant for certain purposes, and he may require or join in 
obtainiug and efFecting an enfranchisement and may re« 
deem an enfranchisement rent-charge, subject to the appro-^ 
bation of the Board of Agriculture, and any money which 
he pays for any of these purposes may be added to the 
amount of his mortgage (/). But a mortgagee not in pos- 
session cannot require enfranchisement {g). The statutory 
provisions as to compulsory enfranchisement do not extend 
to " any copyhold lands held for a life or lives or for years, 
where the teuant thereof hath not a right of renewal" {h). 

If land is held in undivided shares the person who is for 
the time being in receipt of at least two-thirds of the value 
of the rents and profits is entitled to oompel the enfran- 
chisement of the land (t). 

In manors where the fines are certain and it is the 
practice for the copyholders in fee to grant derivative 
interests to persons who are admitted as copyholders of the 
manor in respect of such interests, the person admitted or 
enrolled in respect of the inheritance may compel the en« 
franchisement of the tenement {k). The Act of 1687 con- 
tains special provisions relating to enfranchisements in 
these manors which will be mentioned later. 

It is provided by the Copyhold Act, 1887, that on the 
admittance or enrolment of any tenant after the 31st of 
December, 1887, the steward of the manor shall be bound, 
without any further charge, to give to the tenant so 
admitted or enrolled a notice in the form or to the effect 
following : — 

" Take notice, that if you desire that the copyhold land 
which you hold of this manor of shall become free- 



(/) 16 A 16 Vict. 0. 61, 8. 48. 
{g) Ibid. a. 1. 
(A) Ihid. B. 48. 



(i) 21 & 22 Tiot. o. 94, s. 38. 
{k) ^0 & 51 Ylot. 0. 78, 8. 47. 



EXTINGXnSHMENT AND ENFltANCHISEMENT. 381 

hold, yon are entitled to enfranoIuBe the same upon 
paying the lord's compensation and the steward's fees. 
The lord's compensation may be fixed either by agreement 
between the lord and you or by any valuer appointed by 
yourselves, or through the agency of the Board of Agri- 
Culture, to whom you may make application if you think 
fit to effect the enfranchisement of your land." 

If the steward neglects to serve such notice he will 
not be entitled to any fee for that admission or enrol- 
ment (/). The word '^tenant," as used in this Act, com- 
prises all persons holding lands subject to any manorial 
right or incident, and the term is in other respects to be 
interpreted as in the earlier Copyhold Act8(m). 

The tenant may appoint an agent to act for him in Tenant may 
carrying out any of the provisions of the Copyhold Acts ag^t? 
as to enfranchisements or commutations. The appoint- 
ment should be made by a power of attorney given in 
writing under the tenant's hand, and made in the form 
provided by sect. 39 of the Copyhold Act, 1858. It 
empowers the agent, in the name and on behalf of his 
principal, to concur in and execute any agreement or 
application or document arising out of the execution of 
the Copyhold Acts until the power is revoked by notice, 
under the tenant's hand, delivered to the Board of Agri- 
culture. In the unlikely case of a corporation aggregate 
being the tenant, the documents would require to be under 
its common seal. The power of attorney, or a copy 
authenticated by the signature of two credible witnesses, 
must ber sent to the office of the Board as soon as possible 
after it has been given (n). The power of attorney is not 
chargeable with any stamp duty (o). 

If the tenant is under age or is a lunatic, or is under If the tenant 
any other legal disability, or is beyond the seas, all acts S«Sa^. 
and proceedings required or authorised by the Copyhold 

(/) Seot. 1. - (n) 21 & 22 Yiot. o. 94, as. 39, 40. 

(m) Seot. 49. (o) 15 & 16 Vlot. e. 51, s. 60. 



882 



THB LAW OP OOPTHOLDS. 



If the tenant 

isamamed 

woman. 



If tbe tenant 
is a trustee. 



Death of 
tenant 
pending^ 
procoe£nflr8. 



proc 



Aots to be done or taken by him in oonneotion ^mth 
enfranchisement or commutation may be done and under- 
taken on his behalf by his guardian or the committee of 
his estate or his duly appointed trustee or attorney, as the 
case may be, and in default thereof, or in the event of the 
tenant or other person interested in the property being 
unknown, the Board will, on application being made to 
them, nominate a person to act as substitute for him (p). 

mere a mamed woman is tenant of any land or right 
of copyhold or customary tenure, she may act in all 
matters or proceedings relating to enfranchisements or 
commutations under the Oopyhold Acts as if she were a 
feme sole {q). 

A tenant who is a trustee is entitled to all the rights 
which are conferred, and subject to all the liabilities which 
are imposed, by the Copyhold Acts upon tenants in regard 
to enfranchisements or commutations, and where trustees 
are tenants, and one or more of such trustees are abroad 
or are incapable or refuse to act, any proceedings necessary 
to be done by such trustees for effecting an enfranchise- 
ment under the Acts may be done by the other trustee or 
trustees as the case may be (r). 

The death of any tenant after the commencement of 
any proceedings for enfranchisement or co]!iimutation under 
the Copyhold Acts does not. cause an abatement of the 
proceedings, and any fresh admittance or enrolment which 
may be necessary on account of such death is to be made 
wiiliout the payment of any fine, relief or heriot to the 
lord, it being provided that the proceedings are to be 
continued and the compensation ascertained on the same 
footing as if the enfranchisement or commutation had been 
effected immediately after the commencement of the pro- 
ceedings («). And, generally, it may be noted that all 



(p) 4 & 5 Viot. c. 35, 8. 11; 
60 & 51 Vict. c. 73, s. 39. 
{q) 50 & 51 yict. 0. 73, s. 39. 
(r) Ibid. 8. 40. 



(«) 50 & 51 Viot. c. 73, 8. 31. 
This section overrules the decision 
in Myerg y. Hodgrton, 1 C. F. Div. 
609, that the lord is entitled under 



EXTINGUISHMBNT AND BNFRANGHISBHBNT. 388 

lights whioh these Acts oonfer, and all liabilitieB which 
they impose upon a tenant, may be enforced by or against 
his saooessors in title, unless a contrary intention appears (t). 

The person, whether lord or tenant, who requires en- Notice of 
franchisement or commutation must give notice to the enfraziohise; 
other of his desire that the land should be enfranchised How scrred. 
or that the manorial rights and incidents should be ex- 
tinguished (u). The notice may be in writing or in print, 
or partly in either, and it is deemed to be suflBiciently 
given if delivered to the person to whom it is addressed, 
or left at his usual or last known place of abode or business 
in the United Eongdom. If the notice is sent by post, it 
must be sent in a registered letter directed to tiie person 
who is to be affected by it by name at his place of abode 
or business as above mentioned, and if the letter is not 
returned undelivered, service is deemed to have been made 
at the time at which the registered letter would in the 
ordinary course have been delivered (^). It is also neces- 
sary to send a copy of the notice to the Board of Agricul- 
ture, with an endorsement thereon setting forth when, 
how, and upon whom the notice was served. Forms of 
the notices will be found in the Appendix. 

Under the providons of the Copyhold Act, 1887, the Notice of 
Board have to frame and publish such a scale of compen- JJ^S^^^ 
satipn for the enfranchisement of land from the manorial pensation 
and other rights and incidents, mduding heriots, dealt Board/ 
with by the Copyhold Acts, as will in their judgment be 
fair and just and will facilitate enfranchisement, and it is 
now necessary for the person requiring enfranchisement to 
state to the other whether or not he is willing to adopt the 
Board's scale {y). A print of the latest scale issued by the 
Board will be found in the Appendix. 

When the notice of desire to enfranchise is given by the 

the second proTiflo of sect. 1 of {u) 21 & 22 Vict. c. 94, s. 8 ; 

15 & 16 Viot. 0. 61 to a fine on 60 & 61 Vict. c. 73, b. 7. 
saoh freeh admittance. {x) 50 & 51 Vict. c. 73, s. 36. 

(0 60 ^ 61 Vict. 0. 73, b. 38. (y) IM. B. 30. 



884 



THK LAW OF COPYHOLDS. 



Compxilflory 
prooeedingB 
maybe 
stopped or 
suspended in 
oertoin cases. 



lord, it must be signed by himself or his duly appointed 
agent or attorney, or by the steward of the manor on his 
behalf, and when the notice is given by the tenant it must 
be signed by himself or his duly appointed agent or 
attorney (»). 

It may be mentioned here that notwithstanding the 
compulsory provisions of the Copyhold Acts, the lord has 
power in certain cases and under certain conditions to stop 
enfranchisement proceedings which have been commenced 
by a tenant. Thus, if he can show to the satisfaction of the 
Board of Agriculture, that any change in the condition of 
the land proposed to be enfranchised will prejudicially affect 
in enjoyment or value his mansion house, park, gardens, 
or pleasure-grounds, and that such change would be pre- 
vented by the incidents or conditions of the tenure of the 
land if it remained unenfranchised, he may offer in writing 
to purchase the tenant's interest in the land. If the 
tenant does not accept such offer within twenty-eight days 
after notice thereof has been given to him, the land is 
to remain unenfranchised, unless the Board of Agricul- 
ture think fit to impose terms and conditions which in 
their opinion will be sufficient to protect the interests 
of the lord on enfranchisement. If the tenant within 
twenty-eight days after receiving notice of the lord's 
offer intimates to the Board in writing his acceptance 
of the offer, then the offer and acceptance are binding 
upon both lord and tenant. Thereupon the Board will 
fix a time within which the parties can agree on the 
value of the rights and interests of the tenant, but failing 
agreement, the Board may appoint a valuer for the purpose 
of ascertaining such value, or they may refer the question 
of value to any valuers who may have been already 
appointed in the matter of the enfranchisement. When 
the value has been agreed upon or ascertained, the Board 
will issue a certificate under their seal specifying the land 



(2) 21 & 22 Vict. 0. 94, 8. 8 ; 60 & 61 Viot. c. 78, s. 33. 



EXTINGUlSHfiiENT AND ENFRANCHISEMENT. 



385 



which has been sold to the lord and the amount of the 
consideration money, and will declare that upon payment 
of the consideration money within an appointed time the 
land is to be surrendered or released by the tenant to the 
lord, and thereupon the land will vest in the lord. But if 
the consideration money is not paid within the time fixed 
by the Board, or within any further time allowed by them, 
and it appears to the Board that the amount remains 
unpaid through the default of the lord, they may cancel 
the certificate, and the enfranchisement proceedings will 
thereupon be proceeded with as if the offer and acceptance 
had not been made. All the costs, charges, and expenses 
attending the purchase, including the expenses of any 
valuation that may be necessary and of the surrender or 
release by the tenant, together with any costs which the 
Board may certify to have been incurred by the tenant in 
oonsequence of the offer, acceptance, and default, must in 
any event be paid by the lord (a). 

The Board of Agriculture have also power to suspend 
any compulsory proceedings for enfranchisement i£ there 
are any peculiar circumstances in the case which, in their 
opinion, render it impossible to decide on the prospective 
value of the lands, or if it appears to them that some 
especial hardship or injustice will unavoidably result from 
the compulsory enfranchisement, but if the Board exercise 
this power they must state their reasons for so acting 
in their general report, and lay the report before Parlia- 
ment (ft). 

After the notice of desire for enfranchisement has been Asoertain- 
served -the lord and tenant may agree in writing upon the ^^^uon;"^ 
amount of the compensation to be paid (c), or they may 
agree in writing that the Board of Agriculture shall 
determine the compensation (c?), or they may appoint in 
writing a valuer or valuers to ascertain the amount (^), 



(a) 16 & 16 Vict. 0. 61, b. 25. 

(b) ma, B. 36. 

(r) 60 & 61 Viot. 0. 73, b. 3. 

E. 



{d) Ibid, 8. 43. For a form of 
agreement, see the Appendix, 
(tf) 60 & 61 Yiot. 0. 73, s. 3. For 

G G 



386 THE LAW OF COPYHOLDS. 

but, tailiiig any of these methods, the compensation has 
to be ascertained under the directions of the Board upon 
a valuation made by valuers appointed in the manner 
hereinafter mentioned (/). 

bj agree- When the amount of the compensation has been fixed 

' by agreement between the parties, the sum so agreed upon 

is deemed to be the compensation for enfranchisement 
lawfully ascertained (g) ; and upon receipt of the agree- 
ment the Board will, subject to such inquiries concerning 
the circumstances of the case as they may think necessary, 
frame an award of enfranchisement in such form as they 
may provide, and when the requisites to be mentioned 
later have been complied with they will confirm the 
award (A). 

tydetennina- When the amoimt of the compensation is left for the 
' determination of the Board, they will on receipt of the 
agreement to that effect take such proceedings and make 
such inquiries as they may think necessary for the pur- 
pose, taking into consideration all such matters as valuers 
appointed under the Copyhold Acts are bound to consider 
when making a valuation. When the Board have deter- 
mined the compensation they will communicate the residt 
to the lord and tenant, and will fix a time within which 
any objection to such determination may be made by 
either party, and after the expiration of the period so 
fixed, or after the consideration and disposal of the objec- 
tions, if any, the Board will make their award of en- 
franchisement, and afterwards confirm it in the same 
manner as if the compensation had been ascertained by 
valuers under the Copyhold Acts (t). 

by one valuer jf the parties agree to have the compensation ascertained 

appointed by i • -i 

parties; by a valuer, they may appomt the same person to act for 

them both (k). On receipt of the valuer's decision the 

the forms of appointment, see the (A) 21 & 22 Vict. c. 94, ss. 10, 12. 

Appendix. (i) 60 & 61 Yiot. c. 73, s. 43. 

(/) 21 & 22 Vict. 0. 94, s. 8. (*) Ibid. e. 10 (a). 

(ff) 60 & 61 Vict. 0. 78, 8. 3. 



EXTINGUISHMENT AND ENFRANCHISEMENT. 887 

Board will proceed to frame an award of enfranchisement 
in terms of the valuation, and in such form as they may 
provide (/). 

If the amount of the compensation is not determined byyaluers 
by any of the methods above mentioned, then it must be uSS^iTcopy- 
ascertained under the direction of the Board of Agricul- l^oldActs. 
ture, and upon a valuation to be made in the following 
manner : — 

(a) Where the manorial rights consist only of heriots, 
rents, and licences at fixed rates to demise or fell timber, 
or any of these, or where the land to be enfranchised is 
not rated to the poor-rates at a greater amount than the 
net value of 30/., the valuation is to be made by a valuer 
to be nominated by the justices at the petty sessions holden 
for the division or place in which the manor or the chief 
part thereof is situate (m) ; or either party may have the 
valuation made as in the case of the land being rated to 
the poor's rate at a greater amount than the net annual 
value of 30/., as next hereinafter mentioned, but in that 
case the person desiring such mode of valuation is liable 
to pay the additional expense caused thereby (n). 

(b) When the manorial rights to be compensated do not 
consist only of rents and heriots and such licences as 
are mentioned above, or when the land to be enfranchised 
is rated to the poor's rate at a greater amount than the 
net annual value of 30/. (o), or where the valuation to be 
made is of the sum to be paid to the lord in respect of 
any fine, heriot, or other manorial incident whatsoever {p)j 
the valuation is, unless the parties appoint the same person 
as valuer, to be made by two valuers, one to be appointed 
by the lord, and the other by the tenant {q). 

{I) 21 & 22 Vict. 0. 94, b. 10. (o) 21 & 22 Vict. o. 94, s. 8 ; 

For the fozm of the valuer's ded- 60 & 61 Vict. c. 73, b. 10. 
sion, see the Appendix. (p) 21 & 22 Vict. c. 94, 8. 8 ; 60 

(m) 21 & 22 Viot. c. 94, b. 8. & 61 Viot. o. 78, s. 7. 

(») 60 & 51 Viot, 0. 73, s. 10 (b). {q) 21 & 22 Viot. o. 94, fl. 8; 

60 & 61 Viot. 0. 73, B. 10. 

cc2 



388 



THE LAW OF OOPYHOLDS* 



Appointment 
of ompiro. 



Time for 
decision of 
yaluers and 
reference 
to umpire. 



Before either paxtj applies to the justices to appoint a 
valuer, he must give due notice of his intention to do so 
to the other party, and he should send to the Board a copy 
of the notice and also of the appointment of a valuer by 
the justices (r). 

Where the lord and tenant do not together appoint the 
same valuer, the person who has given notice of desire for 
enfranchisement should appoint a valuer in writing, and 
give notice thereof to the other party requiring him by 
such notice to appoint a valuer («). If within twenty- 
eight days after the service of this notice the other party 
neglects or refuses to appoint a valuer on his behalf, the 
Board may, on application being made to them by either 
party, appoint a valuer (t). The person requiring the 
enfranchisement should send a copy of his appoinfanent of 
a valuer to the Board, together with a copy of his notice 
to appoint served on the other party with an endorse-' 
ment thereon as to the time and mode of service (w). 

The valuers within fourteen days after their appoint- 
ment, and before they proceed, must appoint an umpire, to 
whom they, or either of them, may refer the whole matter 
or any point in dispute, and in the event of their failure to 
appoint within that time the Board will appoint an umpire 
on the application of the valuers or either of them (x). A 
copy of the appointment of an umpire by the valuers should 
be sent to the office of the Board as soon as it is made (^). 

The valuers must make their decision (which must be in 
the form after-mentioned) within forty-two days after their 
appointment (s). If they fail to make their decision, and 
also fail to refer the matter to the umpire within the forty- 
two days, then the umpire is, if so directed by the Board, to 



(r) See the minute of the Board 
of Agriculture, para. 6, in the 
Appendix. 

(«) For a form of the notice of 
appointment, see the Appendix. 

(0 21 & 22 Vict. c. 94, s. 8. 

(u) See the minute of the Board 
of Agricnlturei para. 6, in the 



Appendix. 

{x) 21 & 22 Vict. 0. 94, s. 8. 
For the forms, see the Appendix. 

(y) See the minute of the Board 
of Agriculture, para. 7, in ihe 
Appendix. 

{z) 21 & 22 Viot. 0. 94, s. 8. 



EXTINOUISHMEKT AND EN7RAKCHISEMENT. 389 

act as if he had been duly appointed by the lord and tenant 
to act as their valuer, and when so acting he must make 
and deliver his decision to the Board within forty-two days 
from his being directed by the Board to act as valuer for 
both parties ; but if he fails to deliver his decision within 
that period, or if the Board do not direct him to act in the 
manner mentioned, then in either of these cases the Board 
are to fix the consideration to be paid (a). 

The Board, however, have power by order under their Eiteneion 
seal to extend the time within which the valuers may be ^^ *^®* 
appointed, or within which they may appoint an umpire or 
make their decision (b). 

If the valuers refer the matter to the umpire, he must 
make his decision within forty-two days after the reference 
to him, but the Board have power to extend the time (c). 

When a valuer has been appointed by either a lord or a Removal of 
tenant, his appointment cannot afterwards be revoked ^pi^/' 
except by the consent of both lord and tenant ; but the 
Board of Agriculture may at any time, on the complaint of 
either party, remove any valuer or umpire for misconduct, 
or for refusal or omission to act (rf). 

If any valuer or umpire who has been duly appointed Fresh ap- 
dies, or becomes incapable or refuses to act, or is removed S^h™&o! ^ 
for misconduct, another valuer or umpire may, within a of valuer or 
time to be fixed by the Board, be appointed in his stead, '^P"^" 
in the manner and by the means by which the valuer or 
umpire whose place he is to fill was appointed. But if 
appointment is not made within the time fixed by the 
Board, the appointment will be made by the Board ; and 
the new valuer for the time being may adopt and act upon 
any valuation and other matters or proceedings which may 
have been completed or agreed upon by the valuer pre- 
viously acting (e) . 

(a) 60 & 61 Vict. 0. 73, 8. 10 (o). {e) 21 & 22 Vict. c. 94, 88. 8, 9. 

(b) 21 & 22 Vict. c. 94, s. 9. (rf) 16 & 16 Vict. o. 61, 8. 3. 
For a form of the order, see the (e) 60 & 61 Vict. c. 73, s. 12. 
Appendix. 



890 THE LAW OF COPTHOLBS. 

Powers and Before a valuer or umpire can enter upon his duties, 
T^uen! b^ must make and subscribe in the presence of a justice 

of the peace a declaration to the effect that he will faith- 
fully and to the best of his ability value, hear and deter- 
mine the matters referred to him, and the declaration has 
to be annexed to his decision or valuation when made and 
forwarded to the Board (/). Any valuer or umpire who 
wilfully acts contrary to the declaration he has made is 
i^I^tj of Sem,«.o«r 0,). 
Production of A valuer or an umpire, as the case may be, has power 
documents, ^^ pummons under the seal of the Board of Agriculture to 
call for the production of any court-rolls or copies of 
court-roll in the possession or power of any lord or tenant, 
or of the steward of the manor, at such time and place as 
the Board may appoint, for any of the purposes of the 
Copyhold Acts (A) ; and he has also power by summons 
under seal of the Board to summon and examine any lord 
or tenant or other person on oath, and to administer the 
oath necessary for that purpose. If the person who has 
been duly summoned, and to whom a reasonable sum has 
been paid or tendered for expenses, neglects or refuses 
without lawful excuse to attend or produce the documents 
which have been called for, he is liable to a penalty of 5/., 
on proof of his neglect or refusal before two justices of the 
peace for the county wherein the proceedings are being 
held ; and any person wilfully giving false evidence when 
duly summoned and sworn before a valuer or umpire is 
liable to punishment as for perjury, but a lord or tenant 
who is summoned is not bound to answer any questions as 
to his title (i). 
Enhy on A valuer or an umpire, as the case may be, and his 

agents and servants may, upon giving reasonable notice to 
the occupier, enter upon any of the lands and heredita- 
ments which are proposed to be enfranchised or commuted, 

(/) 16 & 16 Vict. 0. 51, SB. 28, 52. (A) Ibid. a. 5. 

(^) Ihid. 8. 28. (i) Ibid, 



EXTINGUISHMEKT AND ENFRANCHISEMENT. 391 

und may make all neoessary admeasurements, plans, and 
valuations thereof, without being subject to any action, 
obstruction or hindrance, but making compensation for all 
injury, if any, occasioned by the entry on the lands (k). 

With regard to the identity and boundaries of lands it ABoertain- 
is provided that in cases where the identity of the lands u^an^"*^" 
cannot be ascertained to the satisfaction of the valuers, the boundaries 
lands are to be dealt with by them as consisting of the 
quantities mentioned in the court-rolls, if the quantities are 
therein stated to be in statute measure ; but if the quantities 
are not so specified, then the valuers may determine the 
quantities at which the lands shall be taken. If the lands 
are not defined by a plan upon the court-rolls, the valuers 
may, upon a request in writing by either the lord or the 
tenant, define the Umits or boundaries of the lands by a 
plan, and when the plan is accepted by the Board it is 
conclusive ; but except by agreement between the lord and 
tenant no plan is to be made in any case where it appears 
either by the court-rolls, or otherwise, that the boundaries 
of the lands have for more than fifty years last past been 
treated as being intermixed with the boundaries of other 
lands, and as being incapable of definition. In any case 
where valuers have been appointed and there is a doubt 
or difference of opinion as to the identity of the lands, 
either the lord or the tenant may apply to the Board to 
define the boundaries of the land for the purpose of en- 
franchisement, and the Board may proceed to ascertain 
and define the boundaries in such manner as they may 
think fit, their decision and determination being final and 
conclusive (/). 

In making a valuation for the purpose of ascertaining Oircum- 
the compensation payable to the lord upon an enfranchise- ^^^|^^ 
ment under the Copyhold Acts, the valuers must take into by valuers, 
account the facilities for improvement, the customs of the 
manor, the fines, heriots, reliefs, quit rents, forfeitures, 

{k) 16 & 16 Vict. c. 61, s. G. {I) 60 & 61 Vict. c. 78, s. 42. 



892 



THE LAW OP COPYHOLDS. 



and all other incidents whatever of copyhold or customary 
tenure, and all the other circumstances affecting or relating 
to the land which are included in the enfranchisement^ 
and all the advantages which arise from it(m)y but not 
the value of escheat for want of heirs (w). These provi- 
sions as to the duties of the valuers in this respect have 
received judicial interpretation in various cases. Thus, it 
was held that the lord was entitled, on an enfranchisement 
of customary lands subject to the provisions of the Chel- 
tenham Manor Act (o), to compensation in respect of the 
advantages accruing to the tenant from the removal of 
restrictions on leasing or other disabilities attending his 
customary estate, the amount of the compensation, how- 
ever, being a question of fact and depending upon the 
extent to which the value of the particular property is 
increased by the removal of the restrictions (p). But 
whilst regard must be had to the capability of the land 
for future improvements, the value of the facilities fop 
improvements must be taken as being diminished by any 
difficulties which in fact exist in consequence of the state 
of the title to the land. Thus, in a case where it appeared 
that the copyholds were used and occupied, partly as a 
gentleman's private residence with the usual adjuncts and 
partly as meadow and pasture land, and that the part 
occupied as a private residence was held by a third person 
under a lease which was granted with the licence of the 
lord and which in fact prevented any access to the meadow 
land from a public road during the term of the lease, and 
that the whole of the property was the subject of a settle- 
ment by the will of the deceased copyhold tenant which, 
precluded the granting of leases for more than twenty-one 
years, the court held that, although the valuers were not 
boimd in assessing the compensation payable to the lord 
by the mode in which the property was then enjoyed, but 



(m) 16 & 16 Vict. o. 61, s. 16. 
(fi) 60 & 61 Vict. c. 73, 8. 6. 
(o) 1 Oar. I. o. 1 (FkiT.). 



(p) Lingvmd y. Gyd$y L. B. 2 
0. P. 72. 



EXTINOniSHMEKT AND EN7RAKCHISSMENT. 393 

might take into oonsideration its capacity for improyement 
by applying it to building purposes, yet the lease and the 
settlement w^re to be taken into aocoimt as obstacles in 
the way of building: that the lease, which was equally 
binding on the lord and the copyholder, coidd not be 
excluded from consideration, and that accordingly the 
land could only be dealt with as land which had a capacity 
for improvement by the copyholder after the expiration of 
the term ; and that the settlement, though not absolutely 
preventing the land from being applied to building pur- 
poses, presented considerable difficulties in the way of its 
being so applied, and consequently was a circumstance to 
be taken into accoimt by the valuers as affecting the value 
of the land (q). 

In the case of Brabant v. Wilson (r), the land which was 
the subject of enfranchisement had been formerly waste of 
the manor but had been granted by the lord, with the 
oonsent of the homage, to be held as copyhold, subject to 
the condition that no buildings should be erected or trees 
or shrubs planted on it, and with a reservation to the lord 
and certain copyholders of a power to enter and remove any 
buildings or trees which might be erected or planted in 
breach of the condition. In the course of the valuations to 
determine the compensation the question arose, whether 
upon the enfranchisement the conditions and restrictions 
contained in the grant against building and planting would 
continue in force. On a case stated for the opinion of the 
Court, it was held by the Court of Queen's Bench that 
upon enfranchisement the land would become of freehold 
tenure, discharged from all the conditions and restrictions 
which affected it as a copyhold, and that consequently the 
lord was entitled to have the value of the tenement upon 
the enfranchisement estimated upon the footing of its being 
applicable without any restraint to building purposes. It 

(q) Ardm t. W%U(m, L. B. 7 (r) L. B. 1 Q. B. 44. 
C. P. 636. 



394 THB LAW OF OOPTHOLDS. 

may be mentioned here, however, that the Board of Agri- 
culture have now power under the Copyhold Act, 1887 («), 
in any case of enfranchisement effected by award, if they 
think fit, to continue and give effect to any conditions 
affecting the user of the land subject to which a tenant may 
have been admitted, and which may have been imposed or 
created for the benefit of the public or of the other tenants 
of the manor, where in the opinion of the Iloard any 
especial hardship or injustice would residt if the lands were 
released from such conditions. The lord's right in respect 
of any timber which may be growing on the land must 
be taken into account on enfranchisement, and compensa- 
tion for it must be allowed (t), 
DeciaLon The value set upon the manorial and other rights and 

Ox Yftlusrs 

incidents included in the enfranchisement, including the 
advantages arising from the enfranchisement, is in all 
cases to be stated as a gross sum of money, and the 
valuer's decision is to be in such form as the Board of 
Agriculture may prescribe (w). The valuers have in 
every case to deliver the details of their valuation to the 
Board. The Board have power to remit the valuation for 
re-consideration or correction, if they consider it imperfect 
or erroneous ; and if the valuers neglect or decline to 
amend or alter their decision, the Board may, after giving 
due notice to the lord and the tenant, and after fully 
considering all the circumstances which have been brought 
before them, determine the value at such a sum as they 
may think just and reasonable (x). This power of the 
Board to send back the valuation for re-consideration or 
correction is not limited to cases where the details of the 
valuation show that there has been an error in principle ; 
the Board have power to remit in any case where it 
appears to them that there has been an error, whether as 
to the amoimt of the valuation or as to the principles on 

(*) Sect. 8. (f*) 60 & 61 Vict. o. 73, s. 11. 

{t) Reynolds t. Woodham Walter For a form, see the Appendix. 
Manor {Lordof), L. R. 7C. P. 639. {x) 60 & 61 Vict. o. 73, s. 11. 



EXTINGUISHMENT AND ENFRANCHISEMENT. 895 

"which the yaluers have proceeded, which will do an 
injustice to the parties or either of them. Even if the 
valuers amend their valuation, but the conclusion is still 
unsatisfactory to the Board, it would appear that the 
Board are not bound by such amended valuation. On 
this point reference may be made to the remarks by Lord 
Esher, M.E., as to the powers of the Land Commissioners 
(now the Board of Agriculture) in the case of Regina v. 
The Land Commissuyners for England {y). " I see nothing 
in the section to confine the action of the Commissioners 
to one objection only, so as to bind them by a partial 
amendment made by the valuers, but not satisfactory 
to the Commissioners. I do not, however, think that 
they are obliged to send the valuation back to the valuers 
a second time, but when it comes back to them after 
they have once remitted it, they may then deal with 
it and make their award of the sum they deem just and 
reasonable. To my mind there is nothing in the Act to 
make the decision of the valuers binding on the Com- 
missioners. The truth is, the valuers are not arbitrators 
but assessors and assistants to the Commissioners, and the 
award is made by the Commissioners under the authority 
given by the statute." 

If any objection is made or any question arises in the Qnestions of 
course of the valuations in any enfranchisement to be arising in*^ 
effected by an award under the Copyhold Acts in relation course of 

, . 1 i» • valuation to 

to any alleged custom, or the evidence thereof, or m be referred 
relation to any matter of law or fact material to the ^ ^a^^- 
valuation or arising on the enfranchisement, such objection 
or question is on tiie request in writing of eitiier of the 
p^ies to be referred to the Board, or to any officer of the 
Board assigned by them to exercise their powers and 
discharge their duties under the Copyhold Acts, and the 
decision of the Board or of such officer after inquiry is to 
be final But if any of the parties is dissatisfied with the 

(y) 28 Q. B. Diy. 59, 63, 64. 



396 THE LAW OF COPYHOLDS. 

deoision of the Board or their oflBcer on any matter of law, 
he may, within twenty- eight days after the deoision and 
upon fourteen days' notice in writing to the other parties 
afiPeoted by it, request the Board to direct a case to be 
stated for the opinion of the High Court of Justice. The 
decision of the Court on the case submitted to it will be 
binding on all parties, including the Board (s). It will be 
observed that it is only on a matter of law that an appeal 
will lie to the Court from the decision of the Board or 
their officer. Accordingly, in a case where a question 
arose whether there was a special custom in the manor 
entitling the lord to claim one-third of the timber on the 
copyholds, and the Copyhold Commissioners after due 
inquiry found that there was such a custom and that the 
lord was entitled to compensation upon enfranchisement in 
respect of his rights under the custom, the Court of 
Common Fleas held, on a case stated for their opinion, 
that the only question as to a special custom which the 
Court could entertain was whether there was evidence of 
it. If there was evidence, then it was the exclusive pro- 
vince of the Commissioners to determine, as a question of 
fact, whether such evidence proved the existence of the 
custom ; and being of opinion that there was evidence of 
the special custom alleged, the Court declared that the 
finding of the Commissioners with regard to it could not 
be disturbed {a). The costs of stating the case and of 
obtaining the decision of the Court are in the discretion 
of the Court to which the case is submitted, and it may 
order the costs to be taxed, and execution may issue for 
them, as if they had been recovered upon a judgment of 
record (6). 
Allowance to Under the provisions of the Copyhold Act, 1887, the 
umpire.^ Board of Agriculture are empowered to print and publish 
a scale of allowance to valuers or umpires for services 

(a) 16 & 16 Vict c. 61, 8. 8; Manor {lord of), Jj-B.. 7 O.T.eZd, 
4 & 6 Vict. c. 36, B. 40. 646. 

(a) Iteffnoldt y. Voodham WalUr (&) 4 & 6 Vict. c. 86, s. 40. 



EXTINGUISHICENT AND ENFBAKCHISSMENT. 



397 



performed in the execution of the Copyhold Acts (c). A 
print of the latest scale published by the Board will be 
found in the Appendix hereto, but it is to be observed 
that the scale is intended to be for guidance only and is 
not to be taken as binding in any particular case as a 
matter of law. 

In any case of enfranchisement or extinguishment of Preparation 
manorial rights and incidents conducted before the Board Sonof^nSS! 
of Agriculture, when the amount of the compensation has 
been duly ascertained, the Board, after having made such 
inquiries concerning the circumstances of the case as they 
think necessary, will prepare an award of enfranchisement 
on the basis of the compensation and in such form as 
they may provide, and they may afterwards confirm the 
award (fl?). A print of the inquiries which the Board 
require to be answered in every case of enfranchisement or 
extinguishment of manorial rights and incidents under the 
Copyhold Acts will be found in the Appendix hereto. 
But* before the Board can confirm the award they must 
have served a copy of it in the form in which it is proposed 
to be confirmed upon the steward of the manor (e), unless 
the award in draft has been perused by him (/). Where 
service of the copy of the award is necessary, it must take 
place fourteen clear days at least before the award is con* 
firmed (^). Again, in cases where the consideration is 
either a gross sum of money immediately payable or land, 
the Board cannot confirm the award until the receipt of 
the person entitled to the consideration money has been 
produced or the conveyance of the land has been confirmed 
by them (A). A copy of the award, sealed or stamped 
with the seal of the Board, has to be sent by the Board to 
the lord, who must cause it to be entered on the manorial 
court-rolls (t). 



((?) 50 & 61 Vict. c. 73, b. 30. 
{d) Ibid. 8. 22. 

{e) 21 & 22 Vict. o. 94, 8. 10. 
(/) 60 & 51 Vict. 0. 73, 8. 22. 



iff) 21 &22 Vict. 0. 94,8. 10. 

(A) Ibid. 8. 12. 

(i) 50 & 61 Vict. 0. 73, s. 22. 



398 



THE LAW OF COPYHOLDS. 



Effect of oon- 
firmation of 
award, &c. 



Oommence- 
ment of 
enfranchise- 
ment. 



Form of com- 
pensation. 



When the Board of Agrioultore have oonfiimed an 
award of enfranohisement, or have executed any deed or 
other instrument whereby an enfranchisement or extin- 
guishment of manorial rights is effected, the confirmation 
or execution, as the case may be, is to be taken as condu- 
sive evidence that all the necessary directions in relation to 
the enfranchisement or extinguishment have been duly com- 
plied with, and the award or deed cannot afterwards be 
impeached by reason of any omission, mistake, or in- 
formality in any of the proceedings, or on account of any 
want of notices or consents which may be required by any 
of the Copyhold Acts (k). But the Board have power at 
any time, on the application of any person interested, to 
correct and supply all errors or omissions arising from 
inadvertence in an award or deed of enfranchisement, or in 
any other instnunent which the Copyhold Acts authorise 
them to make or issue. Before making any correction, the 
Board will give due notice to all persons interested, and 
they may order all expenses incident to the correction to 
be paid as they may direct (/). 

It was provided by the Copyhold Act, 1858, that the 
commencement of every enfranchisement, or of every com- 
mutation or extinguishment of manorial rights, might be 
fixed by the memorandum confirming the instrument 
whereby the enfranchisement or commutation or extin- 
guishment was effected, and that, in default of being so 
fixed, it was to take place on the day of confirmation (m) ; 
but now it appears from the provisions of the Copyhold 
Act, 1887, that compulsory enfranchisements take effect 
from the date of the notice of desire for enfranchisement 
or extinguishment (n). 

Where the enfranchisement is effected at the instance of 
the lord, or when the compensation payable to him amounts 
to more than one year's improved annual value of the land, 



{k) 15 & 16 Vict. 0. 51, s. 33. 
(/) 50 & 61 Vict. c. 73, a. 44. 
{m) 21 & 22 Vict, c, 94, s. 18. 



(n) See 50 ft 51 Vict. o. 73, 
88. 14, 31. 



EXTINGUISHMENT AND ENFRANCHISEMENT, 399 

and the land can in the opinion of the Board of Agricul- 
ture be suffioiently identified, the compensation must, 
unless the lord and tenant otherwise agree or the tenant 
gives notice to the Board of his desire to pay the amount 
in a gross sum of money, consist of an annual rent-charge 
issuing out of the land enfranchised, equivalent to interest 
at the rate of 4/. per centum per annum on the compensa- 
tion money. Where the enfranchisement is effected at the 
instance of the tenant, the compensation will in the ab- 
sence of agreement be payable in money, unless it amoimta 
to more than one year's improved annual value of the land 
enfranchised and the land can be sufficiently identified, in 
which case the tenant can discharge his obligation by the 
grant of an annual rent-charge calculated in the manner 
above mentioned. In cases where the enfranchisement is 
effected by award, and the tenant desires to pay the com- 
pensation in a sum of money, he must give notice to the 
Board of his desire so to pay within ten days after 
receiving the draft of the proposed award (<?). 

The Copyhold Act, 1887, provides in the case of com- Commence- 
pulsory enfranchisements that the rent-charge is to be j^t-c^ge. 
equivalent to interest at the rate of 4/. per centum per 
ftnTinTTi on the amount of the compensation, and is to 
commence in every case from the date of the notice of 
desire to enfranchise (p). 

AU rent-charges created under the provisions of the Date of 
Copyhold Acts are now payable on the first day of ^^ch^ee. 
January and the first day of July in each year, and in the 
case of an enfranchisement taking place between these 
dates in any year, a proportionate payment will be made 
for the interval elapsing between the commencement of 
the rent-charge and the half-yearly day of payment 
which next follows the date of the award or memorandum 
or deed of enfranchisement (q). 

(o) 60 & 61 Viot. 0. 73, 88. 13, U. (q) 60 & 61 Viot. o. 73, s. 16. 

Ip) Ibid, 8. 14. 



400 THE LAW OF COPYHOLDS. 

Eecoveryof Every rent-charge under the Copyhold Acts is now 
recoverable by the remedies described in sect. 44 of the 
Conveyancing and Law of Property Act, 1881 (r). Ac- 
cordingly, if at any time the amount due or any part of it 
is unpaid for twenty-one days after either of the half- 
yearly days of payment, the person entitled to the rent- 
charge may enter into and distrain on the land charged, 
and may dispose of any distress found there, so that either 
thereby or otherwise all arrears of the rent-charge and all 
costs and expenses occasioned by the non-payment may be 
fully paid. Again, where any portion of the amount due 
is in arrear for forty days after either of the half-yearly 
days of payment, the person entitled to the rent-charge 
may, without having made any legal demand for payment, 
either enter into possession of the land charged and take 
the rents and profits, until either thereby or otherwise all 
arrears due at the time of his entry or afterwards becoming 
due during his continuance in possession, and all costs and 
expenses occasioned by the non-payment of the rent-charge, 
are fully paid; or he may, whether taking possession or 
not, by deed demise the land or any part of it to a trustee 
for a term of years with or without impeachment of waste, 
on trust by mortgage, sale or demise, or by receipt of the 
rents and profits, or by any of these means or by any 
other reasonable means to raise and pay the arrears of the 
rent-charge due or to become due, together with all costs 
and expenses occasioned by the non-payment or incurred 
in compelling or obtaining payment or otherwise in 
relation thereto, including the costs of preparing and 
executing the deed of demise and of executing the trusts 
thereof. When the person entitled to the rent-charge 
enters into possession of the land under the above provi- 
sions, his possession is without impeachment of waste («). 
In addition to these remedies, an action of debt may be 
brought against the tenant for arrears of rent-charge {(). 

(r) 60 & 51 Vict. c. 73, 8. 16. (0 Searle v. CookSy 43 Ch. Diy. 

(«) 44 & 46 Vict. c. 41, s. 44. 619 ; Thomas t. S^/lvester, L. B. 8 

Q. B. 368. 



EXTINGUISHMENT AND ENFRANCHISEMENT. 



401 



Every rent-charge under the Copyhold Acts may be Redemption 
redeemed on any of the half-yearly days of payment, ll^^l' 
provided six months' previous notice in writing is given 
by the person for the time being in the actual possession 
or receipt of the rents and profits of the land charged to 
the person for the time being entitled to the rent- 
oharge(t(7). The amount of the redemption money in 
such a case is declared by the Copyhold Act, 1887, to be 
twenty-five times the yearly amount of the rent-charge (i), 
but under the provisions of the Copyhold Act, 1852, the 
Board of Agriculture have power upon the request of 
any of the owners of the land charged to certify the 
amount of the consideration for redemption (y). 

If the amount of the redemption money and all arrears Becoyery of 
(if any) of a rent-charge are not duly paid upon the ^^J^^^^ 
expiration of the notice for redemption, the person entitled 
to the rent-charge may exercise over the land for the 
recovery of the redemption money and the arrears of the 
rent-charge all the powers and remedies which are given 
to a mortgagee by the Conveyancing and Law of Property 
Act, 1881 (2). Accordingly, on complying with the 
statutory requirements, he may lease the land or sell it, or 
appoint a receiver of the rents and profits as may be 
necessary (a). 

A rent-charge under the Copyhold Acts is a first charge Rent-charge 

1 1 -I 1 J] . 1 • • J 11 • • ft first charfiTO 

on the land, and takes pnonty over all previous mcum- o^ the land, 
brances excepting tithe rent-charges and any land- 
drainage charges or rent-charges created by virtue of the 
Lands Drainage Acts {b). 

When a lord having a limited interest is entitled to Lord's charge 
a rent-charge or to a certificate of charge in respect of tenant to the 
enfranchisement money left chargeable upon the land, ^a^o'- 
the rent-charge or certificate of charge will belong and be 



{tc) 60 & 51 Vict. c. 73, a. 17. 
{z) Ibid. 

(y) 16 & 16 Vict. c. 61, 8. 37. 
(«) 60 & 61 Vict. c. 73, 8. 18. 



(fl) 44 & 46 Vict. c. 41, as. 18— 
26. 

(b) 21 & 22 Vict. c. 94, 8. 33 ; 
60 & 61 Vict. 0. 73, s. 19. 

D D 



402 THE LAW OF COPYHOLDS. 

appurtenant to the manor, but not so as to be incapable of 
being severed therefrom, and it "will not be affected by the 
extinction of the manor (c). 
Sale of rent- Any rent-oharge under the Copyhold Acts may be sold 
lii^tedownep. ^J ^ person having a limited estate therein, or by a 
corporation without a power of sale except under the 
Copyhold Acts, with the consent of the Board of 
Agriculture, and in cases of infancy, idiotcy, lunacy, or 
other legal disability with the consent of the guardian, 
committee, or trustee of the person who is under disability. 
But the consideration or the redemption money, as the 
case may be, must be dealt with as in the case of pay- 
ment to a limited owner, to be explained later (d). 
Receipt for Where the compensation for the enfranchisement is a 

money, where sum of money, the lord for the time being, although only 
^tedeetate * lin^ited owner, is able in all cases where the land is 
enfranchised under an award of the Board of Agriculture 
or by a deed with the consent of the Board, to give a 
complete discharge for the amount, so as to relieve the 
person paying the money from all responsibility as to its 
application. But the money has to be paid by the 
recipient as the Board, having regard to the provisions of 
the Copyhold Acts hereinafter mentioned, may direct (e). 
Where the enfranchisement is carried out by agreement 
between the parties or otherwise without reference to the 
Board, the lord for the time being is able to give a 
complete discharge for the compensation money if it does 
not exceed £500, provided he makes a declaration in 
writing stating the particulars of his estate or interest in 
the manor, and showing himself to be entitled to receive 
the money for his own use. If he is not actually entitled 
to the money, he is deemed to have received it as a trustee 
for the persons who are entitled, and if his declaration is 
false, he is liable to the penalties attached to a false 



{e) 21 & 22 Vict. o. 94» b. 31. {e) 60 & 61 Viet. o. 73, b. 26. 

(d) 15 & 16 Vict. c. 61, s. 36. 



' EXTINGUISHMENT AND ENFRANCHISEMENT. 403 

statutory declaration (/). If the lord cannot show himself 
to be entitled to the compensation money, or if it exceeds 
the sum of £500, the money must be paid as the 
Copyhold Acts direct in the case of consideration money 
payable to owners under disabiliiy {g). 

If in any case the lord refuses to receive the enfranchise- M lord refuaes 
ment money, it has to be dealt with as in the case of compeDflation. 
consideration money under the Copyhold Acts payable to 
owners under disability (A). 

The payment of moneys due for the consideration or Payment in 
compensation on enfranchisement or for the sale, or limitedowner. 
redemption of a rent-charge in the case of a person entitled 
to such moneys for a limited estate or interest only, or 
as trustee for sale or otherwise without power to give an 
effectual discharge, or under disability, or of a corporation 
entitled only imder the Copyhold Acts to sell any such, 
rent-charge, is to be made as follows. The money may at 
the option of the person for the time being entitled thereto 
be paid either (1) into Court, being placed in the books at 
the Paymaster-General*s Office to the credit of Hx parte 
the Board of Agriculture and of the particular manor in 
respect of which it is paid in, or (2) to the trustees acting 
under the will, conveyance or settlement under which 
the person having such limited interest derives his title, 
or to one or more of such trustees as the Board may 
direct and appoint, or (3) if there are no such trustees, 
into the hands of trustees to be nominated under the 
seal of the Board (i). The money when paid into 
Court may be applied by order of the Court, and the 
money when paid to the trustees may be applied by 
them with the consent of the Board of Agriculture, 
in some one or more of the following ways, viz., in 
the purchase or redemption of the land tax, the dis- 
charge of any rent or incumbrance affecting the rent- 

(/) 60 & 61 Vict. 0. 73, b. 26. (i) A form of appointment of 

(y) 16 & 16 Vict. c. 61, B. 39. tnifltees by the Board will be fomid 

(A) 21 & 22 Vict. 0. 94, b. 13. in the Appendix. 

dd2 



^ I 



404 . THE LAW OF COPYHOLDS. 

charge or manorial rights in respect of which the money 
shall have been paid, or affecting other hereditaments 
settled therewith to the same uses, trusts, and purposes, or 
in the purchase of lands to be settled to the same uses as 
any rent-charge which the money may represent. Until 
such application by the Court the money may be invested 
upon the like order in the purchase of Consols or Reduced 
Annuities, or in Government or real securities, or other 
securities in which cash under the control of the Court may 
be invested, the income being paid (without the necessity 
of any fresh order) to the person entitled to such considera- 
tion or compensation, or to such rent-charge if it hcul not 
been redeemed (A;). The order of the Court for the 
application of the money paid in may be obtained by 
the person entitled to the compensation money by 
summons at the chambers of a judge of the Chancery 
Division of the High Court, but notice is not to be given 
to the Board of Agriculture unless the judge directs (/). 
The person obtaining the order will be entitled to his costs 
out of the fund (w), and when the Board of Agriculture 
appear under the direction of the judge they will be 
allowed their costs (»). Upon any vacancy in the office of 
any such trustee appointed by the Board, another fit 
person is to be appointed by them in like manner (o). 
If manor ia In the case of a manor held upon a charitable trust 

oharitable within the provisions of the Charitable Trust Acts, 1853 
^'^^^ to 1891 (j»), by a corporation or other lord not authorised 

to make an absolute sale except by these Acts or the 
Copyhold Acts, the money to be paid for redemption or 
sale of the rent-charge or as compensation for any 
enfranchisement, may be paid to the official trustees of 

{k) 16 & 16 Vict. 0. 61, s. 39; Cambr,y 27 L. J. N. S. Oh. 178. 

Sapreme Court Funda Bulea, 1886, (o) 16 & 16 Vict. o. 51, a. 39. 

p. 40. (p) 16 & 17 Vict. c. 137 ; 18 & 19 

(0 R. S. C. Ord. LV. r. 2 (11). Vict. o. 124 ; 23 & 24 Vict. o. 136 ; 

(m) JEx parte Arehhp. of Canter- 26 & 26 Vict. o. 112 ; 32 & 33 Vict. 

bwry, 1 GoU. 164. o. 110 ; 60 & 61 Vict. c. 49 ; 64 & 

(fi) Ex parU Queen' t OoUege, 66 Vict. o. 17. 



EXTINGUISHMENT AND ENFRANCHISEMENT. 



405 



oharitable funds, who will apply the same under the order 
of the Charity Commissioners in some of the ways before- 
mentioned, and until suoh application will. expend the 
income according to the Acts relating to charitable funds 
paid to the official trustees (q). 

Enfranchisement considerations payable to any corpora- If a corpora- 
tion, being lords of a manor not held upon such charitable ^Jmor/^*^ ^ 
trusts, may (if the corporation should so desire) be paid 
into the hands of trustees to be appointed by the Board 
of Agriculture, and may be applied to any of the purposes 
above mentioned (r) 

Any like moneys payable to the use of any spiritual if enfran- 
person, in respect of his benefice or cure, may at his desire ^^^j" 1^ 
be paid to the Governors of Queen Anne^s Bounty for the able to the 
augmentation of his benefice («) ^^ * ^°®" 

When the enfranchisement is effected by award of the Lord's i«me- 
Board of Agriculture, the lord's right to the enfranchise- ^^o^^!" 
ment consideration is sufficiently protected by the provision ment oonsi- 
that the Board are not to confirm the award until the 
receipt for the consideration or compensation money has 
been produced to them, or in the case of the consideration 
being land, until the conveyance of the land has been 
confirmed by them {fj. But in other cases where the 
enfranchisement consideration or the interest thereon is 
not paid at the time fixed, the lord or other person entitled 
to the amount may enter into possession of the land and 
take the rents and profits as if it had remained unen- 
franchised and had been lawfully seised into his hands for 
default of a tenant (u). And when the lord has entered 
into possession he may let the land for any period not 
exceeding seven years in possession at such rent as he can 
reasonably obtain ; and the lease will not be determined 
by payment of the enfranchisement consideration (ic). In 
addition, the lord may exercise over the land the same 



deration. 



{q) 21 & 22 Viot. o. 94, 8. 15. 
(r) Ibid. 8. 16. 
(*) Ibid, 8. 17. 



{t) 21 & 22 Viot. 0. 94, 8. 12. 
(m) 15 & 16 Viot. 0. 51, 8. 17. 
{x) Ibid, 8. 18. 



406 THE LAW OF COPYHOLDS. 

rights and remedies as he is entitted to use for the 
reoovery of rent-charges tinder the provisions of the 
Copyhold Acts (y). 
OoDBideratioii Whenever by the Copyhold Acts power is given, or an 
J^^^ ^ obligation attaches, to any person to pay money as con- 
sideration or compensation for enfranchisement or for 
commutation, the money may, under the provisions of the 
Copyhold Act, 1858, be charged upon the land with the 
consent of the Board of Agriculture (z) ; and when any 
absolute owner conveys land as such consideration, he may 
charge the reasonable value of the land so conveyed upon 
the lands enfranchised or commuted, with the like 
consent (a). In such cases the charge may be for a 
principal sum and interest, or for a periodical series of 
payments which shall leave the manor or land discharged 
at the end of the period {b). The charge is made by a 
certificate of the Board, transferable by endorsement {c). 
E£Peotof It will have priority over all incumbrances, except the 
*^"^* tithe and drainage rent-charges (rf). The person entitled 

to the benefit of the charge may recover any interest or 
instalments due under it by the same remedies as are exer- 

provided that until payment of any amount which may be 
due to him, he is to be deemed a mortgagee in fee of the 
manor or land which is charged, with all the powers and 
privileges of a mortgagee of freeholds {e). The charge 
may be taken by any person, and if taken by the lord or 
tenant, it will not merge in the freehold unless the owner 
of it shall declare in writing by endorsement on the cer- 
tificate or otherwise, that he wishes it to merge and be 
extinguished (/). 

The Copyhold Act, 1887, has extended these provisions 
by enacting that the owner of any land enfranchised under 

(y) 16 & 16 Vict. 0. 51, 8. 17. (e) Ibid. ss. 29, 30, 36, 87. 

(s) 21 & 22 Yiot. 0. 94, s. 21. (d) Ibid. s. 33. 

(a) Ibid. B. 22. {e) Ibid. 8. 35. 

{b) Ibid. 8. 25. (/) Ibid. 8. 84. 



EXTINGUISHMENT AND ENFRANCHISEMENT. 



407 



the proTifiions of any of the Copyhold Aots, including in 
the term "owner" eveiy person entitled to the land for 
any term of years originally granted for ninety-nine years 
or upwards (g)^ may charge the land with the compensa- 
tion money and the expenses attending the enfranohise- 
menty with interest on the amount not exceeding £5 per 
centum per annum or by way of terminable annuity, 
calculated on the same basis (h). Any such charge may 
be created by a deed by way of mortgage, subject to the 
provisions of the Conveyancing and Law of Property Act, 
1881, and will be a first charge on the land, having the 
same priority as a charge when made by certificate of the 
Board as above mentioned (t). Notwithstanding the 
imposition of any of these charges, any money already 
invested, or previously secured on the land, may be 
lawfully continued on the security {k)» To facilitate the 
carrying out of these provisions, the Copyhold Act, 1887, 
empowers any company authorised to make advances for 
works of agricultural improvements to owners of settled 
and other estates, subject to the provisions of its Act of 
Parliament, charter, or instrument of settlement, to 
advance such sums ba may be required for the payment of 
any consideration or compensation for commutation or 
enfranchisement under the Copyhold Acts, or for the 
payment of any expenses chargeable upon a manor or land 
under these Acts or otherwise, and for the repayment of 
the money to take a charge in accordance with its 
powers (/). 

A lord who exercises the power of purchasing the Charge by 
tenants' interest in the land under the provisions of the chasm"" 
Copyhold Act, 1852, may with the consent of the Board tenant's 
of Agriculture charge the amount of the purchase-money, 
together with the expenses incurred about the purchase 



(^) 50 & 51 Vict. 0. 73, s. 49. 
(h) Ibid. 8. 23. 
(Q Ibid. 



{k) 21 & 22 Viot. 0. 94, s. 33 ; 
60 & 51 Vict. c. 73, s. 23. 
{I) 50 & 51 Vict. 0. 73, s. 23. 



408 THE LAW OF COPYHOLDS. 

and oonveyance, upon the land purchased, or upon the 

manor, or any land settled therewith to the same uses (m). 

Transfer of If in the course of an enfranchisement under the Copy- 

or oharge hold Acts it is f oimd that the manor, or the lord's estate 

to°fre"ir^d' *^^ interest in any land belonging thereto, is subject to 

lands or the payment of a fee-farm rent or to any other oharge, 

Bto^rS^^e- *^® Board of Agriculture may, on the application of the 

qnate Talue. person for the time being bound to make the payment or 

defray the charge, by order under their seal direct that the 

f ee-f arm rent or other charge shall be a charge either upon 

any freehold lands, specified in the order, being of adequate 

value and held imder the same title as the manor or land, 

or upon any adequate amount of Government stocks or 

funds, to be transferred either into Court by the direction 

of the Board in the manner prescribed by the High Court 

Funds Eules, or to trustees appointed by the Board. 

When the order by the Board has been sealed, the manor 

and land become freed from the payment or charge ; but 

the fee-farm rent or other charge becomes a charge upon 

the lands or funds specified in the order, the same remedies 

for the recovery of the charge being available, so far as the 

nature of the case will admit, against the lands or funds 

as might have been had against the manor or land 

belonging thereto in respect of the original charge (n). 

Expenses. With regard to the costs and expenses of proceedings for 

enfranchisement and commutation, the proTisions of the 

Copyhold Acts are as follows. 

In the case of voluntary enfranchisement or commuta- 
tion, in the absence of any agreement between the parties, 
the costs and expenses are to be paid by the tenants, or by 
the tenants and the lords in such proportion as the Board 
of Agriculture may by order under their seal direct, and if 
any difference arises as to the amount of such costs, or as 
to the share payable by any of the parties, the certificate 

(m) 21 & 22 TiGt. 0. 94, 8. 23. (») 50 & 61 Yiot. o. 78, a. 21. 



SXTINOUISHMENT AND ENFRANCHISEMENT. 



409 



of the Board, or of iheir officer assigned for the purpose, is 
oonolusiye (o). 

In the ease of compulsory enfranchisement or extin- 
guishment of manorial rights and incidents, the Copyhold 
Act, 1852, provides that the expenses of the proceedings, 
together with all expenses which the Board of Agriculture 
may consider to be incidental thereto, whether for proof of 
title, production of documents, expenses of witnesses, or 
otherwise, are to be borne by the person requiring 
enfranchisement; but such expenses are not due or re- 
coverable until they have been certified by the Board or 
their officer as having been reasonably and properly 
incurred; and in case of any dispute or difference the 
certificate of the Board or their officer is final (p). That If lord is 
Act also provides that where the lord who requires an ' 

enfranchisement is an ecclesiastical corporation, or a cor- 
poration sole, not having an absolute power of sale, or has 
only a limited interest in the manor, or is a trustee of the 
manor, the expenses for effecting the enfranchisement, 
together with all expenses which in the judgment of the 
Board may be incidental to the proceedings (the amount 
being subject to the approval and certificate of the Board, 
as already mentioned), are to be paid out of the first 
moneys to be received for the enfranchisement, where the 
consideration is a gross sum of money; but where the 
consideration is not a sum of money the expenses, together 
with interest thereon. not exceeding the rate of £4 per 
centum per annum, are to be charged on the manor or 
on other lands settled or held therevdth as the Board may 
think fit (q). 

Various remedies are given in the Copyhold Acts for the RemedieBfor 
recovery of expenses which have been certified as reason- J^^S ° 
ably and properly incurred (r), but by the Copyhold Act, 
1887, it is provided that whenever money is declared to 



(o) 4 & 5 Viot. 0. 36, 8. 65. 
(p) 16 & 16 Vict. o. 61, 8. 30. 
Iq) Ibid. 8. 31. 



(r) 4 & 5 Vict. 0. 36, 88. 66, 66 ; 
16 & 16 Vict. 0. 61, 8. 30. 



410 



THE LAW OF 00PTH0LD8. 



Expexusesof 
trustee. 



be payable by any person on aoconnt of the expenses of 
prooeedings under the Copyhold Aots, the amount may be 
reooyered as a debt due from the party liable to pay to the 
party entitled to receive, as well as by any other remedy 
given in any special case; and that if the amount be 
payable by the lord to the tenant, or by the owner of a 
rent-charge to the owner of the property charged there- 
with, it may be set off against any money which at the 
time is receivable by the lord from the tenant, or by the 
owner of the rent-charge from the owner of the property 
charged, and in case of any dispute as to the amount, the 
Board of Agriculture are entitled to ascertain the sum 
and to declare it by an order which will bind all the 
parties concerned (s). 

Where the tenant is a trustee, or is not beneficially 
interested in the lands which are enfranchised or com- 
muted, he is entitled to recover all expenses, costs, and 
charges which he may have to pay under, or by reason of, 
any certificate of the Board of Agriculture from the 
person who is beneficially interested in the lands at the 
time of the prooeedings, or his representatives {f). 

Any expenses incurred in proceedings imder the Copy- 
hold Acts may be charged upon the manor or the land 
commuted or enfranchised, or on both, as the obligations to 
pay may attach : or the lord's expenses may be paid out of 
the consideration, or be charged upon any rent-charge or 
any other consideration {u)y or on lands settled to the same 
uses as the manor, or on rent-charges arising out of other 
enfranchisements within the manor (x). When a lord or 
ETSawSTas tenant is authorised by the Acts to raise money on a 
oozunderation charge, or to purchase or convey land and to charge the 
principal or purchase-money or value upon any manor or 
land, his expenses may be charged as part of such principal 
or purchase-money or value, but as distinct from the 



(General ex- 
penses may 
beohaiged. 



When ex- 
penses may 



money. 



(t) 60 & 61 Vict. 0. 73, s. 86. 
(0 4 & 6yiot. 0. 86, s. 67; 7& 8 
Vict. 0. 65, B. 1. 



(m) 21 & 22 Viot. 0. 94, b. 24. 
{x) 60 & 61 Vict. c. 73, s. 24. 



EXTINOUISHMENT AND ENFRANCHISEMENT. 411 

general expenses of commutation or enfranchisement (^). 
All other charges in respect of proceedings under the Acts 
(except the expense of a purchase by the lord under the 
provisions relating to compulsory enfranchisements (z) ), 
are to be for such period as the parties may agree and 
the Board approve, not exceeding fifteen years^ and at 
such interest as shall be stated in the certificate of 
charge (a). Every such charge may be made by a 
certificate of the Board transferable by endorsement (b) ; 
but in the case of a charge of the lord's expenses on lands 
settled to the same uses as the maijior, or on rent-charges 
arising out of other enfranchisements within the manor, 
the Copyhold Act, 1887, provides that the charge is to be 
by deed by way of mortgage with under and subject to 
the provisions of the Conveyancing and Law of Property 
Act, 1881 (c). 

A charge of the general expenses incurred in any Effect of 
proceedings under the Copyhold Acts, as apart from the ^ei^al° 
expenses which maybe charged as consideration money (e/), ©^pensea. 
did not imder the Act of 1858 have priority over existing 
incumbrances (^), but, as has been already mentioned, a 
tenant who charges the compensation money paid for an 
enfranchisement or commutation, may now include all the 
general expenses attending the proceeding in the amount 
which he charges (/) 

The Board of Agriculture have power in cases where ExpenBeain 
disputes as to title render it difficult for them to determine ^^^ to " 
upon what person the order to pay costs or expenses should *i^®' 
be made, to grant to the person whom they deem entitled 
to receive payment of such costs or expenses a certificate 
of charge upon the manor or land, as the case may be, in 
respect of which the costs and expenses have been 

(y) 21 & 22 Yiot. o. 94, s. 26. (c) 5t) & 51 Vict. o. 73, s. 24. 

(e) 15 & 16 Yiot. 0. 61, s. 26 ; . {d) Ante, p. 410. 
ante, p. 384. {e) See 21 & 22 Viet. c. 94, s. 33 

(a) 21 & 22 Yiot. a 94, s. 27. (/} Ante, pp. 406, 407. 

{b) ma. 8. 29. 



412 THE LAW OF G0PYH0LD6. 

incurred {g)» Suoh a certificate of charge will have the 
same e£Pect and priority as a charge of . consideration 
money (A). 
Expenses of Expenses incurred in redeeming a rent-charge are 

redemption of -i ii ^Ji ji j» .i* • i • 

rent-oha^. dealt With on the same lootmg as expenses incurred m 

redeeming a mortgage (t). 
Steward's With regard to the compensation payable to the steward 

compensation* xj* j i»v« xxi_/^"i-i:« 

^ on commutations and enfranchisements, the Copyhold 

Acts contain the following provisions. In the case of 
voluntary commutation it is provided by the Copyhold 
Act, 1841 {k)f that the agreement for commutation may fix 
a scale of fees to be payable to the steward from and after 
the confirmation by the Board. In regard to voluntary 
enfranchisement, the same Act provides (/) that the deed 
of enfranchisement must provide compensation for the 
steward in all cases where the steward holds his o£Sce by 
patent or other instrument for the term of his life, or 
during good behaviour, or where, in the absence of such 
patent or other instrument, the usage has been such as in 
the opinion of the Board to lecul to a just expectation that 
he will hold his office during life or good behaviour. In 
regard to compulsory enfranchisements, it was provided 
by the Copyhold Act, 1862 (w), that the steward for the 
time being of the manor should on every such enfranchise- 
ment be entitled to receive from the tenant, as compensa- 
tion for his trouble about the enfranchisement and for the 
extinguishment of his office with respect to the lands, such 
a sum as the Copyhold Commissioners might direct, and in 
the absence of any such direction such a sum as would 
amoimt to one set of fees on surrender and admittance for 
each of the tenements included in the enfranchisement, 
such fees being calculated according to the reasonable 
custom or usage prevailing in the manor and in case of 
difEerence being ascertained by the Commissioners, and it 

is) 21 & 22 Viot. o. 94, s. 28. (k) Seot. 62. 

(A) Ibid, 8. 33. (0 Seot. 66. 

(«) 60 & 51 Vict. o. 73, s. 20. (m) Seot. 19. 



EXTINGUISHMENT AND ENFRANCHISEMENT. 418 

was further provided that if more than one set of fees was 
demanded by the steward, the Commissioners might 
moderate and tax the amount of the fees to suoh sum as 
should appear to them to be just and reasonable. In con- 
sideration of the oompensation so provided, the steward 
had to prepare and deliver to the tenant a proper deed of 
enfranchisement, duly executed by the lord without any 
further charge save for stamp duty and parchment. 
By the Copyhold Act, 1858, the same amount of com- 
pensation was declared to be payable to the steward, 
notwithstanding that enfranchisements were thereby 
directed to be effected by awards prepared by the 
Copyhold Commissioners (n). But it is now provided by 
the Copyhold Act, 1887, that in every case of enfranchise- 
ment by award after the Slst of December, 1887, the 
tenant shall pay to the steward the compensation which is 
mentioned in the Schedule to that Act (o). 

The steward will, however, be also entitled to a reason- 
able sum for any inspection of the court-rolls of the manor 
which any tenant of the enfranchised land may afterwards 
desire to make, and for making any necessary extracts or 
copies of the rolls (p) ; and if the last admittance to the 
land is prior to the 1st of July, 1853, and the enfranchise- 
ment is at the instance of the tenant, it will be 
remembered that the steward is entitled to receive from 
the tenant two-thirds of the sum to which he would have 
been entitled for fees on an admittance subsequent to the 
1st of July, 1853 (q). 

In the case of Blaker v. Welh (r) the plamtLff, who was 
the steward of a manor, sued the defendant for solicitor's 
costs attending the enfranchisement. The defendant had 
agreed to abide by the valuation of the surveyor named by 
the steward, and had paid the consideration and the 
surveyor's fee in accordance with the valuation. It was 

(it) Sect. 10. {q) 21 & 22 Vict. o. 94, 8. 6. 

(o) Sect. 27. (r) 28 L. T. N. S. 21. 

(p) 16 & 16 Viot. c. 51, 8. 20. 



414 THE LAW OP COPYHOLDS. 

held that as the enfranchisement was voluntary the Copy- 
hold Acts, 1852 and 1858, did not apply, and that the 
plaintifi was entitled to charge for the enfranchisement 
deed which the defendant received. 
CompeMa- AU sums payahle to a steward by way of compensation 

steward may on enfranchisement or commutation may be paid to him 
be charged, ^p j^jg exeoutors or administrators («), and all sums so paid 
may, with the consent of the Board of Agriculture, be 
charged on the land enfranchised (t). 

The fees and compensation payable to a steward in the 

case of an enfranchisement under the provisions of the 

Lands Glauses Consolidation Act, 1845, axe mentioned 

later. 

Effect of The effect of enfranchisement is to free the land from 

enfranchiBe- n . . ^••■ix :ij» n 

ment. ^ customary payments and mcidents, and from aU 

customs of descent, dower, curtesy, and other customs, 
and to render it subject to the laws relating to ordinary 
freeholds, saving the interest under any custom as to free- 
bench, dower, or curtesy, of any person who shall have 
been married before the enfranchisement take effect, and 
saving the custom of gavelkind in Kent (u). But in all 
enfranchisements effected since the 16th of September, 
1887, the lord retains his right in case of escheat for want 
of heirs as if the land hcul not been enfranchised {x). 
Although the customary mode of descent is destroyed 
on enfranchisement, the Judge in Lunacy may, when 
sanctioning the enfranchisement of copyholds belonging to 
a lunatic where the customary descent differs from the 
descent of freeholds, make a declaration that in the event 
of the lunatic dying intestate as to the enfranchised 
property, his heir-at-law shall stand seised of it in trust for 
his customary heirs as if it had not been enfranchised (y). 
On the sale of land which has been enfranchised under 

(«) 4 & 6 Vict. 0. 36, 8. 77. (x) 60 & 61 Vict. o. 78, b. 4. 

(0 21 &