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«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. 34 (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 & 22 Viot. c. 94, 8. 21. (y) In re Rydor, 20 Ch. Dir.
(m) 4 & 6 Vict. c. 36, 88. 80, 81 ; 614.
15 & 16 Vict. c. 61, 8. 34.
EXTINGUISHMENT AND ENFRANCHISEMENT. 416
the oompulsoiy provisions of the Copyhold Acts the
title of the lord of the manor does not require to be
proved («).
Comptdsory enfranchisement does not affect the rights
or interests of any person in, to or out of the lands
enfranchised arising under any wiU, settlement, mortgage
or in any other manner, except in so far as it may
postpone such rights and interests to any charges created
under the provisions of the Copyhold Acts and declared
thereby to be first charges on the land (a).
Where the commuted or enfranchised land was Sabdating
immediately before the commutation or enfranchisement j^ort^?*
subject to any subsisting lease, the freehold into w^hich
the estate is converted shall be the immediate reversion
with the rents and services annexed, and the covenants
and agreements of both parties shall run with the land,
and the rights of distress, entry, or action, shall not be
prejudiced or affected {b).
If any occupying tenant is called upon to pay, and does Pifoteotdon to
pay, any money on account of any rent-charge created taSt?^
under the provisions of the Copyhold Acts which, as
between him and his landlord, he is not liable to pay, he
is entitled to recover the amount from his landlord, or to
deduct it from the next rent payable by him (c).
Commonable rights, to which the tenant is entitled in CQmmonable
respect of his lands^ are not lost or affected by an enfran- "*^
chisement under the Copyhold Acts (d).
On any voluntary commutation or enfranchisement, the Hines and
tenants may grant to the lord rights of way, entry, and ™^
other easements, to enable him to win and carry away
minerals reserved by him under their lands. In the case
of a commutation the grant of such easements and the
{z) Kerr v. FawiOH, 25 Beav. Vict. o. 73, 8. 41.
894 ; 44 & 46 Vict. c. 41, s. 3 (2). (e) 16 & 16 Viot. o. 61, s. 42 ;
(a) 16 & 16 Vict. 0. 61, 8. 46. ' 60 & 61 Viot. c. 73, 8. 16.
(ft) 6 & 7 Vict. o. 23, B. 10 ; (i) 4 & 6 Viot. o. 36, s. 81 ;
16 & 16 Viot. c. 61, 8. 44 ; 60 & 61 16 & 16 Vict. c. 61, s. 46.
416 THE LAW OF COPYHOLDS.
confiideration (if any) may be stated in the agreement;
but on an enfranchisement with a reservation of minerals
such easements are to be reserved and granted in the deed
of enfranchisement (^). Compulsory enfranchisement does
not, without the express consent in writing of the lord or
tenant, affect the rights of any lord or tenant in or to ^^ any
mines, minerals, limestone, lime, clay, stone, gravel, pits,
or quarries within or imder the lands enfranchised; or
within or imder any other lands, or any rights of entry,
rights of way and search, or other easements of any lord
or tenant in, upon, through, over, or under any lands, or
any powers which in respect of property in the soil might
but for such enfranchisement have been exercised for the
purpose of enabling the said lord or tenant, their or his
agents, workmen or assigns, more effectually to search for,
win, and work any mines, mineralB, pits, or quarries, or to
remove and carry away any minerals, limestone, lime,
stones, clay, gravel, or other substances had or gotten
therefrom, or the rights, franchises, royalties, or privileges
of any lord in respect of any fairs, markets, rights of chase
or warren, piscaries, or other rights of hunting, shooting,
fishing, fowling, or otherwise taking game, fish or
*fowr'(/).
Accordingly, where an agreement was made after the
passing of the Copyhold Act, 1852, for the sale of a copy-
hold with the timber and all appurtenances belonging to
the tenement, as soon as the same should become freehold,
the vendor agreeing to use his best endeavours to procure
enfranchisement, and the enfranchisement was duly
effected by a deed under that Act, reserving the minerals
to the lord, it was held that the contract had reference to
the provisions of the Act above- cited, and that notwith-
standing the reservation of minerals, the purchaser must
complete {g).
{e) 4 &6 Vict. c. 36, b. 84. (^) Kerr v. Pawton, 26
(/) 16 & 16 Yict. 0. 61, 8. 48. 394 ; and see JPtetty y. Solfy, 26
Beav. 606.
EXTINGUISHMENT AND ENFRANCHISEMENT. 417
Notwithfltanding any reservation of minerals, the owner User of soil of
of lands enfranchised, whether under the voluntary or ^5b!^
compulsory enactments, may disturb or remove the soil, so
far as may be necessary or convenient for making roads or
drains, erecting buildings, or obtaining water, on such
lands, but this user of the soil is not to prejudice the lord's
rights to minerals reserved by him on a compulsory
enfranchisement under the provisions of the Copyhold
Act, 1852, quoted above (h).
An enfranchisement has of itself the effect of freeing the ConditioiLB as
land from all conditions and restrictions which may have the^Emd
affected it while it was of copyhold tenure, at least so far ^^y^\^
as such conditions and restrictions concern the lord of the oontdnued.
manor or any one claiming under him (t). But, as already
mentioned, the Board of Agriculture have power, where
the enfranchisement is effected by award, to continue any
conditions affecting the user of the land imposed for the
benefit of the public or of the other tenants of the manor,
if in their opinion especial hardship or injustice would
result from the release of the conditions {k).
Enfranchisement puts an end to the copyholder's Obligation as
obligation to keep the boundaries of his tenement distinct, ^ ^*
but an enfranchised tenant might, of course, still be liable
for defaults happening before the enfranchisement tpok
place (/).
After any voluntary or compulsory enfranchisement Inspection of
under the Copyhold Acts, all persons seised of or interested ^
in. the land are entitled to have access to and inspection of
the court-rolls of the manor, and to have topics thereof on
payment of a reasonable sum, and a scale of fees may be
prepared by the Board of Agriculture if they shall think
it necessary or expedient (m). When aU the lands in a
manor are enfranchised, the lord or person having custody
(A) 21 & 22 Vict. 0. 94, s. 14. (/) Searle v. Cooke, 43 Ch. Div.
(i) Brabant t. JFihon, L. B. 1 619.
Q. B. 44. (m) 16 & 16 Vict. o. 61, a. 20.
{k) 60 & 61 Vict. 0. 73, s. 8.
E. E E
418 THE LAW OF COPYHOLDS.
of the court-rolls may give them up to the Master of the
Bolls, who is empowered to allow all persons interested to
inspect them and obtain office or certified copies of them, on
payment of such reasonable fees as he may from time to
time fix (n).
Enfranchisements under the Lands Clauses CansoUdatian
Act, 1846.
Various provisions are contained in the Lands Clauses
Consolidation Act, 1845, for the compulsory enfranchise-
ment of land taken by the promoters of an undertaking
within the meaning of that Act ; and the land has to be
enfranchised imder those provisions, and not under the
Copyhold Acts (o).
Enrolment of Jt has already been mentioned that the conveyance to
oonverance to .. , "... , . i . . •, , , ,•,
oompanj. the promoters of the undertakmg must be entered on the
court-rolls of the manor by the steward on payment of the
same fees as he would receive on a surrender of the lands
to a purchaser ; and that when enrolled it has the same
effect as if the lands had been ' freehold, but until
enfranchisement the lands continue subject to the same
fines, heriots, and services, as were formerly due and
payable {p).
Enfrazidkue- Within three months after the enrolment of the con-
oeeSinM!" veyance, or within one month after the promoters have
entered upon the land or, if there are more parcels of land
than one taken, within one month after entiy upon the last
of the parcels, the promoters must apply to the lord for
enfraiichisement. If the promoters and the lord fail to
agree upon the amount of the enfranchisement considera-
tion, it has to be ascertained in one of the ways provided
by the Act for the settlement of disputed compensation (g).
(n) 50 & 61 Viot. c. 73, 8. 48 ; Ch. 76, n.
antSf p. 816. {p) Ante, pp. 106, 107.
(o) In re Salisbury {Marq, of) and {q) 8 Viot. o. 18, 8. 96.
L<mdon ^ N, W. Mail. Co., (1892) 1
EXTINGUISHMENT AND ENFRANCHI8EMSNT. 419
The company have not to pay a fine to the lord before
they take steps to enfranohise the lands, and if any fine is
so paid it will be appUed as part of the compensation
payable for the enfranchisement (r).
In estimating the compensation allowance has to be Ciicam-
made for the loss in respect of fines, heriots, and other oon^eredin
servicee, payable on death, descent, or alienation, or any eatimatiiig
other mattora which will be lost by the vesting of the lands sation.
in the company or by the enfranchisement (s).
The compensation will be determined and assessed as at Compensa-
the period when the obligation to enfranchise arises, and as at date of
not at the actual time of enfranchisement, if there should o^jjigatioii to
- _ , _ _ _ eQafrancbise.
be any delay m taking the proceedings, but the lord will,
in the meantime, be entitled to any fines becoming payable
between the period of the obligation arising and the date
of the actual enfranchisement, and such fines will be
assessed according to the annual value of the land as
improved by any works which may have been executed by
the company {t).
When the compensation has been agreed upon or other- Enfranchise- '
wise duly determined, and has been paid or tendered to ^^^edT^
the lord, or paid into Court where the lord has merely a
limited interest or cannot make a title to the manor, the
lord has to enfranchise the lands; and in this case the
enfranchisement will be efiected by such a deed as would
be adopted in efEecting an enfranchisement at common law.
In default of his doing so, or of his making a good title to
the satisfaction of the company, they are empowered, if
they think fit, to execute a deed poll in the manner
mentioned in the Act, and when such deed poll is duly
stamped and executed the lands are to be deemed as
enfranchised. Upon enfranchisement, the lands are held
as in free and common socage (u).
(r) In re WiUmU Estate, 2 J. & (t) Lowther y. Caledonian JRail,
H. 619. Co., (1892) 1 Ch. 78.
(«) 8 Vict. c. 18, B. 96. (m) 8 Vict. o. 18, s. 97.
E £ 2
420
THB LAW OF COPYHOLDS.
P*^^"^*^^ The Lands Clauses Consolidation Act, 1845, contains no
to steward. , , , ,
provisions regarding the compensation payable to the
steward in respect of the extmgmshment of his office in
the lands which are taken and enfranchised, and it does
not make any provision for the fees to be charged by the
steward for his services in effecting the enfranchisement ;
and neither of these matters falls within the provisions of
the Copyhold Acts (x). But inasmuch as it appears to be
the general intention of the Lands Clauses Act of 1845 to
provide against any loss being suffered by persons
interested in land owing to the compulsory taking, and to
make the promoters of the undertaking generally liable
for all costs and expenses relating to their acquisition of
the land, it would seem that the steward will be entitled to
compensation for any loss he may sustain in respect of the
extinguishment of his office (especially if he holds it for
life) as regards the lands taken, and for his services in
the preparation and delivery of the enfranchisement
deed (y). This view appears to have been taken by the
Court of Exchequer in the case of Cooper v. Norfolk
Railway Co, (z), for the judgment indicates that, although
the steward is entitled under sect. 95 of the Act on the
enrolment of the conveyance to the fees payable as on a
surrender only, he would also receive certain fees on the
subsequent enfranchisement which the Act requires to be
made. The compensation would be properly calculated,
it is submitted, if it is ascertained in the manner directed
by the Copyhold Act, 1852, as already mentioned {a),
JEn/ranchisements in Manors tchere derivative Interests are
entered upon the Court-rolls,
Special provisions are contained in the Copyhold Act,
1887, with regard to enfranchisements in manors where the
fines are certain and it is the practice for the copyholders
(x) See 16 & IGYiot. o. 51, b. 65. {z) 3 Ezoh. 646.
(y) See Boose, Enfr. Man. 61, 66. (a) Ante, p. 412.
EXTIKGUISHBOSNT AKD ENFRANCHISEMENT. 421
in fee to grant derivative interests to persons who take
admittanoe in respect of those interests (6). In such cases
the person admitted or enrolled in respect of the inherit-
ance is taken to be the tenant for all the purposes of the
Copyhold Acts, and with regard to the special provisions
of the Act of 1887 he is termed the " tenant-in-f ee " (c).
In these manors the enfranchisement enures for the
benefit of the tenant-in-fee and of every other person
having any customary estate or interest in the land
without further proceedings; and it confers upon such
persons estates and interests in the land when enfranchised
corresponding with their customary estates and interests (d).
All rent-charges and all sums of money payable by the
tenant-in-fee in respect of the enfranchisement, together
with interest thereon, are in the absence of agreement
between the pcaties to be borne and paid by the tenant-in-
fee and the other persons for whose benefit the enfran-
chisement enures in proportion to their respective interests
in the land(e). In the event of any dispute regarding
the due apportionment of these payments, the Board of
Agriculture is empowered, on the application of any person
interested and after due inquiry, to make an order of
apportionment which wiU be binding on all the persons
concerned. The expenses incident to the obtaining of such
an order must be paid as the Board may direct (/).
The Act further provides that on the request of the lord, Local in-
or of one-fourth in number of the copyholders on the ascertain
court-roll, the Board of Agriculture may hold a local J^^ether en-
' ••111 iranchiaement
inquiry for the purpose of asoertaimng whether the copy- is desired
holders of the manor are desirous that enfranchisement ^,!i|nor*
shall be efEected throughout the manor. The Board may
(b) These proTisions appear to Lancashire,
have been enaofced chiefly with {e) 60 & 51 Vict. o. 73, s. 47,
reference to the customs and nsages subs. a.
as to snch derivatiye interests in {d) Ibid, s. 47, subs. b.
copyholds, prevailing in the manors {e) Ibid. s. 47, snbs. o.
within the Honour of Glitheroe, in (/) Ibid, s. 47, subs. d.
422 THE LAW OF OOPTHOLDS.
require proyision to be made for the expenses of the pro-
oeedings before they hold the local inquiry (/).
Order by If the Board find that not less than two-thirds in
number of the copyholders desire enfranchisement^ they
will by order declare that all the copyhold tenements shall
be enfranchised {g),
Afioertain- Upon the making of such order the Board will proceed
pensation. ' to ascertain the compensation payable to the lord for the
enfranchisement of each tenement held by a tenant-in-f ee
as above defined, and to enfranchise each tenement as
between the lord and the tenant-in-f ee (A).
Form of oom- Unless the lord and the tenant-in-f ee arrange otherwise,
'^ the compensation must always consist of a gross sum of
money (t), but the lord and the tenant-in-f ee may agree
that the compensation shall consist of a rent-charge
ascertained as in the case of an ordinary compulsory
enfranchisement.
LUbility as When the Board have made an order for the enfran-
ten^^*-fee chisemcnt of all the copyholds, all the tenants-in-f ee of the
a^d tenants manor become liable to contribute to the expenses of the
tiye interests, local inquiry in proportion to the amoimt of the compensa-
tion payable by them respecdyely ; but as between the
tenant-in-fee of any particular tenement and all the copy-
holders holding derivatiye interests under him in the same
tenement, each person is liable to contribute rateably,
according to the yalue of his interest in the tenement, to
the compensation and to all such expenses attending the
enfranchisement as are payable on the part of tenants,
including therein the contribution to the e^enses of the
local inquiry which has been assessed on the tenant-in-
fee (A).
(/) 50 &51 Viot. 0. 73, 8. 47, sabs. {g) Ibid. s. 47, sabs, e (2).
e (1). See 31 & 32 Viot. o. 89, s. 1, as (A) Ibid,
to the right of the Board to take (i) Ibid.
seoority for the pajrment of any {k) Ibid. s. 47, sabe. e (8), and 8.
oosts they may inonr in TnakiTig 47, sabs. 0.
inqoiries onder the Copyhold Aots.
BXnNGTTlSHMENT AKD BKFRANCHISEBIENT. 423
The Board haye power to apportion the contributions Power of
between the seyeral tenants of each enfranchised ^a^*^ ap-
portion oon-
tenement, and also between the several tenants-in-fee, and tribations,&o.
to make orders for the payment of the amounts
apportioned or of the expenses ; and such orders are con-
dusiye and binding between the parties (/).
The enfranchisement is effected by a separate award of How enfran-
the Board for each tenement ; but without the consent of effected? "
the tenant-in-fee the Board are not to make their award
until they have apportioned the contributions and
expenses payable between him and the persons holding
derivatiye interests under him, and haye made orders for
payment of the amounts so apportioned, or have otherwise
satisfied themselyes that the tenant-in-fee has full security
for the amounts which such persons are to contribute (m).
When the enfranchisement has been efFected, it will
enure for the benefit of the tenant-in-fee and all the
persons holding imder him.
JBnfranchisementa in Crown Manors.
In Crown manors enfranchisements are usually made by
the Commissioners of Woods under the provisions of the
Crown Lands Acts, 1829 to 1885 (n) ; but any manor
vested in the Crown in remainder or reversion expectant
on an estate of inheritance, or any lands held of it, may be
dealt with under the Copyholds Acts with the consent in
writing of any one of the Commissioners of Woods (o),
subject to the exception that the provisions of the Copy-
hold Acts as to enfranchisements by award of the Board
of Agriculture do not apply to any manors in which the
Crown has an estate or interest, whether in possession,
reversion or remainder {p).
(/) Ibid. B. 47, subfl. e (4). 16 & 16 Vict. o. 62 ; 16 & 17 Vict,
(m) Ibid. 8. 47, subs, e (5). o. 66 ; 29 & 30 Vict. o. 62 ; 86 & 37
(fi) 10 Geo. rV. 0. 60 ; 2 & 3 Vict. c. 36 ; 48 & 49 Vict. c. 79.
WiU. rV. 0. 1 ; 6 Vict. c. 1 ; 8 & 9 (o) 21 & 22 Vict. c. 94, s. 42.
Vict. c. 99 ; 14 & 16 Vict. o. 42 ; {p) Ibid. s. 46.
424 THE LAW OP COPYHOLDS.
Under the Under the Crown Lands Aots the Commissioners of
Act^ *" Woods may, subject to the sanction of the Treasury,
except in cases where the purchase-money does not exceed
£100 {q)y sell the freehold of any copyhold or customary
tenement, or any manorial rights belonging to the Crown
over any land, for the purpose of enfranchising the
tenement or extinguishing the manorial rights (r).
If any difference arises as to the amount of the con-
sideration, the Commissioners of Woods may, on the
request of the tenant, refer the matter to the decision of a
practical land-surveyor, to be appointed by the Board of
Agriculture. In such a case the award of the land-
surveyor is conclusive and not subject to revision or
appeal ; and all the costs and expenses occasioned by the
reference are to be treated as costs and expenses incurred
in the case of a compulsory enfranchisement at the instance
of a tenant (s).
If the consideration amounts to £100, it has to be paid
into the Bank of England, with a note signed by the Com-
missioners specifying the amount and that the sum is to
be paid to their account. If the consideration does not
amount to £100, it may in the option of the tenant be
paid either into the Bank or to any agent whom the Com-
missioners may appoint for the purpose. Upon production
of the Bank's receipt or payment to the agent, the Com-
missioners will execute in favour of the tenant a deed of
conveyance and give a receipt for the consideration-money,
such deed and receipt being according to the forms
provided in the schedule to the Crown Lands Act,
1829 {t)f or in any other form which the Commissioners
may deem more convenient {u).
The deed has to be enrolled within six months after its
date in the office of the Land Bevenue Beoords (x) and in
(q) 10 Geo. IV. o. 50, as. 60—62. {u) Ibid; and see 15 & 16 Viet,
(r) Ibid. SB. 34, 69. c. 62, s. 5.
(f) 21 & 22 Vict. 0. 94, 8. 41. (x) 10 Geo. IV. o. 60, s. 63. See
(0 10 Geo. rV. Q. 50, 8. 35. 15 & 16 Vict. c. 62, s. 7, as to enzol-
BXTINGUISHHBNT AND ENFItAKGHISEMENT. 425
the oourt-Tolls of the manor of which the tenement or the
manorial rights shall have been parcel {y).
The Crown Lands Act, 1885, provides that whenever
the Oomnussioners of Woods have in pursuance of the
Crown Lands Acts sold the freehold of any copyhold or
customary tenement held of a Crown manor or any
manorial right belonging to the Crown over or in relation
to any land to the tenant, whether there has been any
conditional surrender or not, the right of any person in or
to such copyhold or customary tenement or the lands
subject to such manorial right under any will, settlement,
mortgage, or otherwise shall continue to attach upon the
tenement or land in the same manner as if the freehold
had been comprised in and had been devised, conveyed,
charged, or otherwise disposed of by the will or other
instrument imder which he claims (2). The Act also
provides that the purchasing tenant may mortgage the fee-
simple of the tenement or land in order to secure the
payment of the purchase*money and the costs of the
purchase with interest to any one advancing the amounts.
The mortgage may be made although the tenant himself
advances the money. It has priority over all other
mortgages and incumbrances affecting the land, excepting
tithe-commutation or land-drainage rent-charges ; but the
Act requires the consent of the Board of Agriculture to be
given before any mortgage created under the provisions of
the Act takes priority over incumbrances affecting the land
in existence on the 14th of August, 1885 (a).
In cases of enfranchisement under the Copyhold Acts Under Copy-
in manors vested in the Crown for an estate in remainder ^^^ ^^^'
or reversion expectant on some estate of inheritance, where
the compensation shall under the provisions of these Acts
consist of a gross sum of money, the same is to be paid to
two trustees, of whom one is to be nominated by the Com-
ment in the Office of Land Beyenne (y) 10 Geo. IV. 0. 50, b. 69.
Becords by deposit of a duplicate {z) 48 & 49 Yict. c. 79, a. 4.
of the deed. (a) Ihid.
426
THE LAW OF OOPTHOLDfi.
miflfiioners of Woods, and the other by the person entitled
to the manor for the time being ; but if suoh person does
not agree with the Commissioners for the nomination of
trustees, the money is to be paid into Oourt {b). It may be
applied by the trustees, or when paid into Oourt by the
Faymaster-Gteneral, under the direction of a judge of the
Chancery Division, in the purchase or redemption of the
land tax affecting the manor or any other land settied to
the same uses as the manor, or in the purchase of land of
fee simple tenure and oonyenient to be held with the
settled estates. Until it is so applied, it may from time to
time be invested by the trustees, or by the Paymaster-
General, under an order of the Court, to be obtained upon
application (c) after notice to the Commissioners of
Woods, in the name of the trustees or of the Paymaster-
General, in the purchase of G-ovemment or real securities,
the income of such securities being paid by the trustees or
the Paymaster-Q^neral, under an order of Court, to the
person who is for the time being entitied to the rents and
profits of the manor {d).
If any land is purchased with the compensation money,
or if a rent-charge is granted or awarded as the considera-
tion for the enfranchisement, the land or rent-charge, as
the case may be, must be settied subject to the same uses,
trusts and provisions as may then affect the manor (e).
When the compensation money has been paid in the
manner above mentioned, or in the case of the considera-
tion taking the form of a rent-charge either before or at
the same time as the grant or the award by the Board of
(b) 21 & 22 Viot. 0. 94, s. 43.
See Supreme Court FondB Boles,
1886, r. 40, as to lodging of money
in Court under Copyhold Aots.
{e) The Copyhold Act, 1868,
8. 43, provides that the order of
the Court shaU be ''made in a
Bommary way upon petition ; " but
under the proyisions of the Bules
of the Supreme Court, Ord. LV.
r. 2 (11), and the Chancery Funds
Amended Orders, 1874, r. 16,
applicatioDS under the Copyhold
Aots respecting any seooxities or
money in Court may be made by
summons at Chambers.
(4 21 & 22 Viot. c. 94, s. 44.
{e) Ibid. s. 46.
EXtmOTHSHMENT AND ENFRANCHISEMENT. 427
Agricolture of the rent-oharge, the GommifNdoners of
Woods may oonoar with the person who is for the time
being entitiled to the profits of the manor in exeoating
a deed of enfranohisement to the copyholder. If the
consideration for the enfranchisement is a sum of
money, the deed must state the manner in which the
amount has been applied. A memorial of the deed must
be enrolled in the office of the Land Eevenne Becords,
and thereupon the deed effectually vests in the copyholder
all the estate of the Crown and of all persons under the
settlement of the manor in the land enfranchised (/).
A manor vested in the Crown together with any subject Mwiora held
in joint tenancy or coparcenary, and the lands held of it, tenwooy with
may be dealt with under the Copyhold Acts, so far as *^e Crown,
regards the rights and interests of such subject and of the
tenants of the manor ; but the share or interest of the
Crown in any such manor will be dealt with as in the case
of a manor belonging to the Crown in remainder or rever-
sion, SB already mentioned (ff).
A trustee nominated to act on behalf of the Crown as Trastee for
regards the receipt and application of the enfranchisement ^^^ ^^
money under the foregoing provisions is entitled to be indemnified,
indemnified out of the rents and profits of the possessions
and land revenues of the Crown as to all his costs, charges,
and e^enses (A).
In manors belonging to the Duchy of Lancaster, Manors
enfranchisements are made under the provisions of the ^the^^
Acts 19 Geo. III. c. 45, and 27 Geo. III. c. 34. If any Duchy of
difierence arises between the Chancellor and Council of the
Duchy and the tenant as to the amount of the enfranchise-
ment consideration, the matter may be referred by the
parties to the Board of Agriculture, who will appoint a
land-surveyor to determine the amount (t).
Copyholds which are parcel of the Duchy of Cornwall
(/) 21 ft 22 Vici 0. 94, ss. 46, 47. {h) Ibid, a. 48.
(ff) Ibid, 8. 60. (t) 21 ft 22 Viot. c. 94, 8. 41.
428
THE LAW OF OOPTHOLDS.
Manors
belonging
to the
Daoby of
ComwaU.
are enfranchised under the provisions of the Act 7 & 6
Vict. c. 65 ; and another Act of the same year (k) provides
for the confirmation and enfranchisement of conventionary
tenements in the ^' assessionable " manors of that Duchy.
Every deed or instrument by which an enfranchisement is
effected must be enrolled in the office of the Duchy of
Cornwall within six calendar months after its date {!).
Enfranchisements in Ecclesiastical Manors.
Enfranchisements in manors belonging to an ecolesiafi-
tical corporation may be effected either under the pro-
visions of the Episcopal and Capitular Estates Act,
1851 (m), as amended and extended by later Acts (n), or
under the compulsory provisions of the Copyhold Acts, if
the tenant has a right of renewal (o).
With regard to agreements by ecclesiastical corporations
for commutations of manorial rights and enfranchisements,
the Copyhold Act, 1841, provided that in every case where
any manor or lands were held under any archbishop,
bishop, dean, dean and chapter, archdeacon, or any ecclesi-
astical corporation, or where any such ecclesiastical person
or corporation was interested in any manor or lands to the
extent of one-third of the value, or where it appeared to
the Copyhold Commissioners that the interests of such
ecclesiastical person or corporation would be affected by
any commutation or enfranchisement to be effected under
that Act, the agreement to commute or enfranchise was
not to be deemed as duly executed, unless the consent of
such ecclesiastical person or corporation was annexed to
it (p) ; but the Act did not contain any enabling pro-
visions. The Episcopal and Capitular Estates Act, 1851,
{k) 7 & 8 Vict. 0. 105 ; amended
by 24 & 26 Viot. c. 62.
(0 7 & 8 Viet. 0. G6, 8. 80;
11 & 12 Viot. c. 83,8. 14.
(m) 14 & 16 Vict. c. 104.
(«) 17 & 18 Vict. 0. 116; 28 & 24
Viot. 0. 124 ; 66 & 66 Vict. o. 60.
(o) 21 & 22 Vict. 0. 94, s. 4.
(p) 4 & 6 Viot. c. 36, 8. 22.
EXTINGUISHMENT AND ENFRANCHISEMENT.
429
however, empowers any eoolesiastioal oorporation, sole or Epuooual and
aggregate, with the approval in writing of the Church i^tee Aote.
Estates Commissioners, to enfranchise any copyhold or
customary land held of a manor belonging to such a
corporation (q). The term ^^ ecdesiastioal corporation "
was defined in the Act of 1851 as including '^ every arch-
bishop, bishop, dean and chapter, dean, archdeacon, canon,
prebendary, and other dignitary or officer of any cathedral
or collegiate church in England and Wales, and every
minor ecclesiastical corporation in any such cathedral or
collegiate church," but not the dean and canons of Christ
Church, Oxford, or any college or hospital, or any parson,
vicar, or perpetual curate or other incumbent of any
benefice (r) ; but now the enabling provisions of the Act
of 1851 have been extended to rectors, vicars, perpetual
curates and incumbents (s), and also to the prebendary of
any prebend not being a prebend of any cathedral or
collegiate church {t). It has already been mentioned that
there are many manors belonging to ecclesiastical corpora-
tions in which the copyholds are granted for lives only
and for no greater estate, and that the tenants are not
entitled to demand a renewal of their grants, imless they
can show a constant usage of renewal on payment of a
fixed fine, and that in other manors the copyholds are
granted only for a term of years, renewable or not according
to the usage {u). Provision is made by the Episcopal and
Capitular Estates Act, 1854, for ascertaining by the trial of
an issue in the High Court of Justice whether the tenant
of any land held for a life or lives, or for years, by copy
of court-roll under an ecclesiastical corporation, or under
the Ecclesiastical Commissioners, has a right to a renewal
of his grant, and the decision of the Court is binding on
the corporation or the Commissioners {x).
(q) 14 & 16 Yiot. o. 104, 8. 1.
(r) Ibid, 8. 11.
(«) 24 & 26 Yiot. 0. 106, 8. 3.
(0 26 & 26 Viot. 0. 62, 8. 2.
(«) Ante, pp. 37, 44.
(«) 17 & 18 Viot. 0. 116, s. 6.
430 , THE LAW OF COPYHOLDS.
Howeofrui- When any eodeeiastioal oorporation agrees to enfran-
effeote^ ^ ^^'^ ^^7 1q^<^ ^^ oonvejanoe or assnranoe by which the
enfranchisement is carried into effect has to be in sach
form as the Church Estates Commissioners may diieot,
and it requires to be confirmed by them; when this is
done, the tenant is freed from all responsibility as to the
propriety of the enfranchisement or the sufficiency of the
consideration (y).
Beceipt and It is provided by the Episcopal and Capitular Estates
^^^.g^i^.*' Act, 1851, that ^ moneys receiyed by or becoming pay-
ment moneys aUe to or f or the benefit of any ecclesiastical corporation
an eodesias- on an enfranchisement may eiUier be paid into the Bank
ti^. ~'^'*" of England, to such account as the Church Estates Com-
missioners shall appoint, or, with their approbation, may
remain at interest as a charge by way of mortgage on the
land enfranchised at such a rate and for such a period as
may, with the consent of the Church Estates Commis-
sioners, be agreed upon by the parties ; and in eyery case
the receipt of the Church Estates Commissioners is an
effectual discharge for the money expressed to have been
received (2).
When the money has been paid into the Bank, the
Church Estates Commissioners must apportion it so as to
set apart for the permanent endowment of the ecdesias-
tioal corporation a sum sufficient to ensure to the corpora-
tion a permanent net income equivalent to that which it
would have received from the enfranchised property, and
pay the remainder of the amount to the common fund of
the Ecclesiastical Commissioners (a).
To secure such permanent endowment, the Church
Estates Commissioners may apply the amount they have
apportioned to the corporation in the purchase of other
lands, to be conveyed to its use or for its benefit, or they
may invest the amount in their names in the purchase
(y) 14 & 16 Vict. c. 104, 8. 5. (a) 17 & 18 Viot. c. 116, 8. 6.
(s) Ibid, 8. 6.
EXTIKOUISHMENT AND ENFRANCHISEMENT. 431
of govenunent stocks^ fonds, or aeoniities, and pay the
intereet and dividends tliereof to such corporation (b).
In manors belonging to the Eoolesiastioal Commissioners Eodesiastical
for England enfranchisements may be effected nnder the sionen Acts,
authority of the Eodesiastioal Commissioners Acts (o), or
under the compulsory provisions of the Copyhold Acts,
if the tenant has a right of renewal {d). The Ecdesiasti-
oal Commissioners have by virtue of their Acts all the
same and the like rights and powers of ownership over all
lands and hereditaments vested in them as are enjoyed
over other lands by absolute owners, and they are entitled
to exercise these rights and powers '' by proper instruments
in writing duly executed according to law''(^). All
moneys paid to the Ecclesiastical Commissioners are car-
ried by them to a common fund, which is disposed of
according to the terms of their Acts (/) ; and the receipt
of any two of the Commissioners' treasurers, or of one of
such treasurers with the counter-signature of the Commis-
sioners' accountant or assistant-accountant, is a good and
snfScient discharge for any money due and payable to the
Commissioners, and relieves the person to whom it is given
from all responsibility as to the amount and from all
liability in regard to its application (g).
With regard to enfranchisements in manors belonging Trastees, &o.
either to an ecolesiastioal corporation or to the Ecdesiastioal jJJJJe^]^,
Commissioners, it is provided by the Ecclesiastical Commis- enfranohise-
sioners Act, 1860, that where the land is vested in anyone ^
who is a trustee either expressly or by implication of law,
or in any other person having merely a power of raising
money for the purpose of obtaining a renewal of the grant
(b) 14 & 15 Yiot. 0. 104, B. 6. 48 & 49 Yiot. o. 31.
(<?) 6 & 7 Will. ly. 0. 77; 8 & 4 (i) 21 ft 22 Tiat. o. 94, b. 4.
Vict. 0. 113; 4 ft 6 Yiot. o. 39 ; {e) 6 ft 7 Yiot. o. 37, B. 6.
6 ft 6 Yict. 0. 26; 6 ft 7 Yiot. o. 37; (/) 8 ft 4 Yiot. o. 113, b. 67.
13 ft 14 Yiot. o. 94 ; 23 ft 24 Yiot. (ff) 23 ft 24 Yiot. o. 124, s. 48 ;
o. 124 ; 29 ft 30 Yiot. o. Ill ; 36 ft 29 ft 30 Yiot. o. Ill, s. 3.
37 Yict. 0. 64; 88 ft 39 Yiot. o. 71;
432 THE lAW OP COPYHOLDS.
or lease under which the land is held, such trustee or other
person maj raise money for the purpose of enfranohising
the land, and may apply the amount towards the enfran-
chisement, subject to the same conditions, so far as appli-
oable, BS those under which he may raise the money for
renewing the grant (h).
Enfranohifle- The Ecclesiastical Commissioners Act, 1860, also provides
m^^^niued that if the grant or lease made by the ecclesiastical cor-
bjoliarge, &c. poration or the Comnussioners is held in trust or is settled
without power of raising money for renewals, or if the
manner prescribed for raising money for renewals is not
applicable for raising the money required for enfranchise-
ment, the trustees, whether they are express trustees or
are merely trustees by implication of law, or any person
who is under the terms of the will or other settlement in
the actual possession or in receipt of the rents and profits
of the land, may charge the land with the enfranchise-
ment consideration and expenses, and interest not exceed-
ing £5 per centum per annimi. The charge when created
takes efPect not only on the subsisting term or estate
under the grant or lease but also on the reversion or
interest acquired by the enfranchisement, and is available
against the person making the same and all persons
claiming through him or for whom he may be a trustee,
as also agednst all persons claiming any estate or interest in
the land under the will or settlement (i). Trustees are also
empowered by the same Act to raise the enfranchisement
consideration out of any funds held by them on the same
or the like trusts as the lands, with the consent of the cestui-
que-trustSy or if the cestui-que-tru^ts are under disability or
refuse assent, with the sanction of a judge of the Chancery
Division (k) ; or the trustees may, with the like sanction,
sell or mortgage other lands held by them on trusts
similar to those on which the lands enfranchised are
{h) 23 & 24 Viot. o. 124, 8. 20; (t) 23 & 24 Yiot. o. 124, s. 35.
Bee Sayward v. FiU^ L. B. 5 Ch. {k) Ibid, s. 36.
214.
EXTINOniSHMEMT AKD ENFRAMCHISEHBNT. 433
held ; and trustees who have no power of sale may, under
the provisions of the Act, raise the money hj a sale of part
of the lands comprised in their grant (/). The Act of
1860 further enables any owner to enfranchise his lands
by means of an exchange with the ecclesiastical corporation
or the Commissioners (m).
Where part only of the lands held under any grant by Enfranoliifle-
an ecclesiastical corporation or by the Ecclesiastical Com- Sounds only,
missioners is enfranclused, the Church Estates Commis-
sioners are empowered to apportion the rents, fines certain,
and heriots due and payable under the grant, and also to
authorise the substitution of money payments in lieu of
heriots. The apportionment may be made by writing
endorsed on the grant ; and it must decleu:^ what rents, -
fines certain, and heriots, or money payments in lieu of
heriots, are to continue payable ; but beyond the appor-
tionment of the rents, fines, and heriots, the enfranchise-
ment of part of the land does not affect any custom by or
under which the remainder of the land comprised in the
grant is held (n).
If recourse is had to the compulsory provisions of the Enfranoliifle-
Copyhold Acts to effect an enfranchisement of land held SiToo^pul-
of a manor belonging either in possession or reversion to ^T P'PTJ^'
an ecclesiastical corporation as above defined (o), notice of Copyhold
the proceedings must be given to the Ecclesiastical Com- ^^^'
missioners so that they may express their assent or dis-
sent (p). In the event of the Commissioners dissenting,
the Board of Agriculture will suspend the proceedings
until they are satisfied that the proposed enfranchisement
is not open to objection {q) ; but otherwise the proceedings
will follow the course of ordinary compulsory enfranchise-
ments. If, however, it appears to the Board of Agriculture
(/) Ibid, 88. 37, 8S. Vict. o. 124, 8. 28.
(m) Ibid. 8. 89. (o) AnU, p. 429.
(ff) 14 & 16 Vict. o. 104, 8. 2 ; {p) 21 & 22 Vict. c. 94, 8. 19.
17 & 18 Vict. c. 116, 8. 2 ; 28 & 24 (?) See 4 & 6 Vict. o. 35, s. 56.
E. F F
434 THE LAW OF COPYHOLDS.
that the enfranchisement is one whioh might haye been
made under the Episcopal and Capitular Estates Act,
1851 (and which in that case would haye required the
consent of the Church Estates Commissioners), the con-
sideration must be paid and applied as if the enfraifohise-
ment had been efPected under that Act, and the enfran-
chisement is to be in all other respects as if it had been so
made (r).
The Copyhold Act, 1858, further provides that, where
any ecclesiastical corporation or the Ecclesiastical Com-
missioners have only a reversionary interest in the manorial
rights extinguished by enfranchisement, the consideration
for the enfranchisement shall be dealt in Uie manner
directed by sect. 39 of the Copyhold Act, 1852, with
respect to consideration money payable to a limited
owner («), until the time when the reverBionary interest in
the manorial rights would have come into possession if it
had not been extinguished (t). Thereupon the enfranchise-
ment consideration, or the securities in which it may have
been invested, will, upon application (u) to a judge of the
Chancery Division, be paid or transferred to the Church
Estates Commissioners, who are to be considered as the
parties absolutely entitled to such money, and they are to
deal with it as if they had become entitled to it through an
enfranchisement effected under the Episcopal and Capitular
Estates Act, 1851 {x).
Enfranchiaementa under the Universities and Coltege Estates
Acts.
By the Universities and College Estates Acts, 1858 to
1880 (s), the universities of Oxford, Cambridge, and
(r) 21 & 22 Viot. o. 94, b. 5. tions under the Copyhold Acta
(«) Ante^ p. 403. respecting any seonrities or money
(t) Seot. 5. in Court may be by smnmona at
(m) The Copyhold Act, 1858, s. 6, dhambers.
proyidesthat the application is to be {x) 21 & 22 "Viot. c. 94, s. 5.
by petition ; but under the B. S. C. («) 21 & 22 Viot. c. 44 ; 23 & 24
Ord. LV.r. 2 (11), and the Supreme Viot. o. 69; 48 & 44 Yiot. o. 46.
Court Funds Bules, 1886, appUoa-
EXTINGUISHMENT AND ENFRANCHISEMENT. 436
Darhaniy and any oolleges therein, GhriBt Church being
deemed for this pnrpose a oollege of the University of Ox-
ford (a), and the oolleges of Winchester and Eton are
empowered, with the consent of the Board of Agriculture,
to enfranchise any copyholds or customary lands held of
any manor belonging to them (i), whether the manor forms
jMirt of the general property of the university or college
or is vested in it upon trust or for some special endow-
ment {c). But these Acts do not extend to the enfran-
ohisement of land held for a life or lives, or for a term
depending on a life or lives, or for a lease at a rack-rent
having more than seven years to run, unless the tenant
has a right of renewal {d).
Before the consent of the Board of Agriculture can be
obtained, they must be furnished with a report by the
imiversity or college surveyor giving details of the pro-
posed enfranchisement. If this is not sufficient, the Board
may require a valuation to be made by an independent
surveyor to be named by them, and may call for a plan
of the lands {e). On being satisfied of the propriety of
the enfranchisement, the Board will issue an order in the
form provided in the schedule to the Universities and
College Estates Act, 1858, authorising the university or
oollege to carry out the transaction (/). Where the
report of the university or college surveyor contains a
valuation of the lands, it has to be stamped as an appraise-
ment before the Board issue their order {g).
The enfranchisement will be effected by a deed executed
by the university or college, but the Board do not require
to be made parties to it, their consent being evidenced by
the issue of their order (A).
The enfranchisement compensation has to be paid into
the Bank of England to an account entitled The Account
(a) 21 & 2% Viot. 0. 44, B. 31. {e) Ibid. s. 2.
{b) Ibid, 8. 1. (/) Ibid, 8. 3.
{e) Ibid. 8. 29. (^) 31 & 32 Viot. o. 89, B. 2.
(<q Ibid. B. 1. (h) 21 ft 22 Viot. o. 44, B. 2.
ff2
436 THE LAW OF COPYHOLDS.
of the Board of Agrioolture Ex parte the partioular nniyer-
sity or college ; and the receipt of the Board for the
amount so paid is a complete discharge (i).
The Universities and College Estates Act, 1858, proYides
that the money may be applied in payment of an equality
for any exchange made by the university or college, or
with the consent of the Board of Agriculture may be laid
out in the purchase of other lands in fee simple or of lease-
hold tenure ; but in the case of leaseholds, the term must
have 500 years to run from the date of the purchase, the
rent must be nominal, and the lands must be contiguous to
or convenient to be held with other lands belonging to the
university or college {k). Under the provisions of the
Universities and College Estates Amendment Act, 1880,
the money may be applied with the consent of the Board
of Agriculture, as evidenced by an order under their seal to
the efiect set forth in the schedule to that Act, in the re-
pajnnent of any money borrowed under any of the
Universities and College Estates Acts, or to any of the
purposes in which money so borrowed may be applied
under those Acts (/). If the money is applied in repay-
ment of a loan, it must be replaced before or at the
expiration of the period when the loan is to be repaid, and
upon such terms as the Board may specify in their
order (m). All moneys not applied for any of the purposes
above mentioned have to be invested by and in the name
of the Board in the purchase of Government stocks,- funds,
and securities in trust for the university or college (n).
In the case of a manor which has been granted by the
university or college on a lease for a life or lives or for a
term of years, the university or college and the lessee are
jointly the lords for the purposes of enfranchisement (o),
(0 21 & 22 Yiot. 0. 44, 8. 1. Ch. 333, 677.
{k) Ibid, (m) 43 & 44 Yiot. o. 46, 8. 2,
{I) 43 & 44 Yiot. c. 46, 8. 2, sab-8. sub-s. (2).
(1) and (3), and 86ot. 4. See ExparU (n) 21 & 22 Yiot. c. 44, s. 1.
KingU CoUege, Cambridg$, (1891), I (o) 23 & 24 Yict. c. 59, s. 4.
EXTINGUISHMENT AND ENFRANCHISEMENT.
437
the lessee, or his executors or administrators, if entitled in
possession at the date of the enfranchisement to the profits
of the manor, being however empowered to give a valid
receipt for the compensation money (p). But the amount
has at the option of the lords to be paid either into Court,
in accordance with the provisions of sect. 39 of the Copyhold
Act, 1852, or to trustees to be appointed by the Board, as
provided by sect. 16 of the Copyhold Act, 1858, in either
case to be dealt with, after due notice to the university or
college, as enfranchisement consideration money payable to
a limited owner under the Copyhold Acts (g), until the
time when the reversionary interest of the university or
oollege in the manorial rights would have come into
possession if it had not been extinguished. Thereupon
the .money will, on application to the Court or to the
trustees, be paid to the Board of Agriculture to be applied
in the manner provided by the Universities and College
Estates Acts (r). If the compensation is secured by a rent-
charge created under the provisions of the Copyhold Acts,
the charge will be in favour of the lessee, and if it is
redeemed he will be able to give a receipt for the redemp-
tioti money, but the amount will have to be paid and
applied in the maimer ah'eady mentioned (s),
Othei' 8tatuto)y Enfranchisements,
By the Acts for the redemption of the land-tax, limited if^^^ "^^
•^ ... Redemption
owners are empowered, with the sanction of a judge of the Acts.
Chancery Division, to enfranchise copyholds for the purpose
of discharging their estates from the tax, and for the same
purpose to dispose of any heriots, rents, or other payments
due to them out of freehold or copyhold manors or
lands {t). These Acts also render it lawful for corporations,
with the consent of the Treasury (w), and for trustees of
charities to sell their interest in any copyhold or customary
(p) 60 & 51 Vict. c. 73, a. 46.
{q) AnUy p. 403.
(r) 23 & 23 Vict. o. 59, s. 4.
(«) 50 & 61 Vict. c. 73, b. 46.
(0 42 Geo. in. c. 116, ss. 60, 71.
(w) Ibid. 8. 76; 1 & 2 Vict. c. 58.
438 THE LAW OF COFTHOLBS.
lands or in any manorial rights for the same purpose, and
for the purpose of such sale to enfranchise any lands held
by copy of court-roll or other customary tenure by a deed
indented and enrolled or registered in the manner provided
by sect. 119 of the Land Tax Redemption Act, 1812 {x).
There are many special provisions in these Acts
respecting enfranchisements for the purpose of providing
funds for purchase of land-tax, which are too lengthy to
be set out here in detail (y).
Church Under the Church Building Acts, 1818 to 1884, all
Acts. limited owners and bodies corporate and collegiate are
enabled to enfranchise and convey to the Ecclesiastical
Commissioners any land of copyhold or customary tenure
sold or required for the purposes of these Acts (2). Upon
payment or tender of the compensation agreed upon or
assessed, the Ecclesiastical Conmiissioners may enter upon
and take possession of the lands, and the fee simple and
inheritance thereof will thereupon vest in them (a).
Poor Law When a contract has been entered into for a conveyance
of land of copyhold or customary tenure for the purposes
of the Poor Law Acts (6), the Local Government Board
may direct the difference in value between the copyhold
estate in the land and the fee simple, including therein the
value of any fine, heriot, or customary service due in
respect of the land, to be ascertained by such means as
they think fit. When the amount of the difference has
been ascertained and paid or invested to or for the use or
benefit of the lord, the land is to be deemed enfranchised
and discharged from aU customary fines and services (c).
If the lord is dissatisfied with the sum, he may, within
seven days after the Local Government Board have ten-
dered or offered ta pay him the amount, intimate to them
{x) 42 Geo. in. 0. 116, s. 70. (z) 58 Geo. in. 0. 45, as. 36, 89.
{y) See 63 Geo. IH. oo. 123, (a) Ihid, s. 43.
142 ; 64 Geo. in. o. 173 ; 67 (&) 4 & 5 WilL IV. o. 76 ; 6 & 6
Geo. in. o. 100; 1 & 2 Vict. o. 68; Wffl. IV. o. 69 ; 1 Viofc. c. 60.
16 & 17 Vict, c. 74. {e) I Viet. o. 60, 8. 2.
BXTINGXJISHMENT AND ENFRANCHISEMENT.
439
hiB dissent; and the Board may thereupon direct a further
valuation to be made by two valuers^ one to be appointed
by them and the other by the lord. These valuers must
appoint a third valuer before entering on their duties, and
the decision of the three valuers or of any two of them is
to be oonolusive (d). Thereupon the B9ard will issue a
oertifioate under their seal setting forth that the valuation
has been made and that the enfranchisement has been
effected, and will direct the steward to enrol the certificate
on the court-rolls and to furnish a copy of the entry on
parchment certified by him to be a true copy (e).
The Literary and Scientific Institutions Act, 1854, Litenuyaad
enables any person seised of copyholds, and having the institations
beneficial interest therein, to enfranchise and convey by '^°**
way of gift, sale, or exchange any portion of the land not
exceeding one acre for the establishment of an institution
of the character described in the Act ; but if he is seised
of an estate for life only, he must have the consent of the
person next entitled in remainder in fee simple or fee tail
if he is legally competent to join in the grant (/). The
Act also provides that any deed by which the copyholder
and the lord shall grant and convey their respective
interests shall be deemed to be valid and sufficient to vest
the freehold interest in the grantee without any surrender
or admittance in the lord's Court, but that the fees (if
any) due by the custom of the manor on enfranchisement
must be paid to the steward (g).
The provisions of the School Sites Acts as to the enfran- School Sites
ohisement of land taken as a site for a school have already
been noticed (A). By the Consecration of Churchyards
Act, 1867, these provisions were extended so as to allow
of grants in fee of lands of copyhold or customary tenure
for the enlargement of churchyards and burial places {f).
(d) Ihid.
{e) Ibid, B. 3.
(/) 17 & 18 Vict. 0. 112,8. 1.
(^) Ibid, B. 16.
(A) Ante, p. 105.
(i) 30 & 81 Yict 0. 133, e. 4.
440 THE LAW OF 00PYH0LD6.
Powers of the Board of Agriculture.
The powers of the Board of Agrioiilture with reepeot to
the proceedings for an enfranchisement or a commutation
of manorial rights and for the regulation or inclosure of
commons have already heen mentioned in some detail,
and the Board have various incidental powers under the
Copyhold and Inclosure Acts, which it may also be useful
to notice.
Board may If any action is depending or any question or difference
determine arises touching the right to any fines or other manorial
dieputee. payments or incidents, except mines and minerals, or
regarding the amount of any fine or other manorial pay-
ment, the Board, or any officer whom they may assign for
the purpose, may, under the provisions of the Copyhold
Act, 1841, appoint a time and place in or near the manor
in question, and hold a meeting for the purpose of hearing
and determining the matter in dispute. The decision of
the Board or their officer hinds all persons interested,
to whom twenty days' notice of the meeting has been
given. The notice may be served personally, or delivered
at the last place of abode of the person to be affected by
it, or left with the occupying tenant of the land to which
the meeting relates. If the tenant does not forthwith send
the notice by post or otherwise to the person for whom it
was left, he will be liable to a penedty of not less than £5
or more than £20, and to make good all loss occasioned by
his default {k). Any one having an interest in the land
who is dissatisfied with the decision may, if the yearly
value of the payment thereby directed to be made or with-
held exceeds the simi of £20, within three months after
the decision has been notified in writing to the parties
interested, bring an action against the person in whose
favour the decision has been made, and have the right
which is disputed settled by the trial of an issue in the
{k) 4 & 6 Vict. c. 35, s. 39.
EXT1NGT7I8HMSNT AND ENFBANCHISEMENT. 441
High Court ; but if the deoision involyes a point of law
only, a case may, on the application of the person dis-
satisfied, be stated by the Board for the opinion of the
Court (l). So far as any suoh deoision of the Board or
their officer either directly or indirectly affects any right
to mines or minerals, it is to that extent of no force
or effect (m).
Before holding any such meeting as is above mentioned,
the Board may require security to be given to them for
the payment of aU costs which they may incur in the
matter, including all the expenses of their officer's attend-
ance (n).
The Copyhold Act, 1841, also provides that any pending Beferenoe to
actions or differences touching the title to or the amount "^i*™*^*****
of any fines, heriots, or manorial rights, or relating to the
situation or boundary of any manor or lands (o), and any
difficulties arising to hinder a voluntary enfranchisement,
may be referred by the parties interested to the decision of
an arbitrator ; but in the case of an owner having an estate
less an immediate estate of fee-simple or fee-tail, or corres-
ponding copyhold estate, the reference will not bind the
persons entitled in remainder, reversion, or expectancy
without the consent of the Board of Agriculture ; and the
Board may, if they think fit, direct any person so entitled
to be made a party to the reference. The decision of the
arbitrator is final and conclusive, and if he is appointed
for the purpose of determining any unknown or disputed
boundary of any manor or lands, he is entitled to exercise
all the powers of a referee under the Act, 2 and 3 WilL
lY. c. 80, for identifying the possession of ecclesiastical
and collegiate corporations {p).
If any trustee, who has been nominated by the Board Vacanor i
under the provisions of the Copyhold Acts, desires to resign tewtee.
(/) Ibid. B. 40. Board to determine the boundaries
(m) Ibid, B. 39. of any land for the purpose of en-
(n) 31 & 32 Yiot. c. 89, s. 1. franchisement, ante, p. 391.
(o) See sect. 42 of the Copyhold (i?) 4 & 6 Vict. c. 36, s. 21.
Act, 1887, as to the power of the
in
442 THB LAW OF 00FTH0LD8.
or becomes incapable of actmg, the Board may supply the
vacancy thence arising by the appointment of some other
suitable person as they may think fit (q).
Fonns. The Board are empowered to frame, print, and circulate
all such instruments as they may judge necessary for
furthering the purposes of the Copyhold Acts (r) ; and
Delegation of they may delegate their powers to any of their officers,
^"'""' excepting the power of confirming agreements or awards
or of friaming such instruments as may be necessary for
carrying out the proyisions of the Acts, and excepting the
right to do any act which requires to be done under the
seal of the Board (a).
Costs of the Where any dispute as to the expenses incidental to an
taxation^of enfranchisement or as to the compensation to be paid to
enfranchise- the steward is referred to the Board for their certificate, all
penses. costs which the Board may incur in the matter are to be
paid to them as they may by order under their seal direct
If any person, liable under the order, delays to make
payment of the sum declared to be due by him, the Board
may recover the amoimt with costs in any county-court,
their order being conclusive evidence of the debt (t),
Produotion of Where an inclosure has been authorised by Parliament
relating to ^^^ & valuer has been appointed, the Board may at any
inolosure. time by order under their seal require the valuer or any
person having the charge or possession of any valuation,
plan, report, award, or other document relating to the
inclosure, to deliver to them such valuation or other docu-
ment. On default of delivery they may sunmion the
valuer or other person before the county-court judge
within whose district the land, or any part thereof, is
situated ; and upon production of the Board's order the
judge is to enforce it at the expense of the person neglect-
ing in the same manner as he can compel the production
of papers and documents before himself {u).
(9) 7 & S Yiot. 0. 66, s. 6. (0 31 & 32 Yiot. 0. 89, 8. 3.
(r) 4 & 6 Vict. 8. 36, s. 20. (u) Jhid, s. 4.
(t) Ibid. s. 10.
EXTINGUISHMENT AND ENFRANCHISEMENT. * 443
Where any suoh order as is aboye-mentioned has been Board may
made by the Board, or where any valuer has been removed ^^J2[J|^
under the provisions of the Inolosure Acts, the Board may, payment to
vol n Af*
on the application of the valuer or surveyor or his repre-
sentatives, take such steps as they may think necessary to
ascertain the progress which has been made towards the
completion of the inclosure, and they may determine and
award a sum to be paid to the valuer or surveyor or his
representatives. The sum so awarded, together with all
costs incurred by the Board in its ascertainment, forms a
charge on the landowners and is to be deemed as a part of
the expenses of the inclosure to be raised and defrayed in
the same manner as the other expenses (x).
The Board are also empowered to prepare from time to Table of fees,
time, with the approval of the Treasury, and to publish in
the London Gas^tte tables of the fees to be taken by them
in respect of the business transacted under the Acts which
are administered by them (y).
(x) Ibid. 8. 6. of transactionB under the Copyhold
(y) Ibid. 8. 6. A table of the fees and Inclosure Acts will be found
authorised to be taken in respect in the Appendix.
( 445 )
APPENDICES.
APPENDIX I.
Instruotioiui for effecting Exchanges and Partitions of Land,
and Divisions of Intermixed Lands, under the Inclosure
Acts. (Issued by the Board of Agriculture.)
1. The Board of Agriculture are empowered by various
Acts to effect exchanges and partitions of land, and divisions
of intermixed, lands in England and Wales.
The exchange powers in these Acts are to enable land- Object of
owners, whether limited or absolute owners, to avoid the. ©^lohaiige
necessity and expense of investigating the titles of the lands P^^®"*-
exchanged; the leading principles being that the lands ex-
changed shall be of equal value, and that the land received
in exchange shall be held under the same title, and subject
to the same uses, trusts, and liabilities as was the land given
in exchange. Upon the confirmation of an order of exchange,
therefore, the land received becomes clothed with the title and
subject to all the liabilities of the land given up, with certain
exceptions referred to below, paragraph 18.
2. The partition powers are to enable the Board, on the Partition
application of the persons owning not less than two-thirds of powers,
the interests, to divide lands held in undivided shares among^
the several owners in proportion to their interests.
3. The powers relating to the division of intermixed lands IMvigion of
are to enable the Board, on the application of all the persons intermixed
separately interested, to divide or apportion lands, which are ^*°^-
BO intermixed or divided into inconvenient parcels that they
cannot be cultivated or occupied to the best advantage, into
convenient parcels amongst the several owners.
4. A combined exchange and partition may be effected Combined
where persons own the entirety of some of the land, and un- ©^c^apge and
dividea shares in other land or subject matter of exchange. Partition.
5. An exchange, partition, or division of intermixed lands Informal ex-
agreed to be made but not legally completed, may, where o^ianges may
the parties are in possession under the agreement, be legally ^ legalised,
oompleted.
446
AFPBNDIX I.
What can be 6. For the purposes of the Acts the word *' land " includes
®*^"*fi^®' incorporeal as well as corporeal hereditaments, and any un-
partitioned. (iivided share thereof. The Acts authorise the exchange or
partition of freehold land, of copyhold or customary land, of
glebe land, of undivided shares in land, of cattle gates, of
land held by the same person under different titles, and also
of rights of common, rights of fishing, manorial and other
rights, and all easements over land, quit-rents, chief rents,
heriots, tithes, and rent-charc^es ; and where land has been
allotted under any Indosure Act or award for any public or
parochial purpose, but is no longer convenient or suitable for
the purpose for which the allotment was set out, it may be
exchanged for other land which is more convenient and suit-
able for the purpose. Crown lands, and lands belonging to
railway and other companies, may also be exchanged.
7. Mines and minerak, and also rights of way and other
easements, may be reserved.
8. The consent of the lord of the manor is necessary to the
exchange of copyhold and customary land. On the exchange
of copyhold or customary land for freehold land the copyhold
land becomes freehold, and the freehold land copyhold, with-
out any new admittance ; and copyhold lands may, with the
consent of the lord of the manor, be declared freehold. The
steward of the manor may signify that the lord has consented.
9. The consent of the bishop of the diocese and of the patron
of the living are necessary to the exchange of glebe land.
10. As a general rule the persons who can make application
for an exchange are those who are in actual possession or
receipt of the rents and profits of the lands.
But this rule is subject to the following exceptions : —
(i.) Lessees for lives or years at a rent of two-thirds the
clear yearly value or upwards, or lessees for a
term not originally exceeding 14 years, or tenants
from year to year or at will cannot apply : but the
persons entitled in reversion immediately expectant
are the persons to apply ; and in such cases there
will be no shifting over of the interests of the
tenants or lessees, who will occupy the same lands
after the exchange as before,
(ii.) Where land is held on lease for lives, or for a term
of years originally exceeding 14, at a rent of less
than two-thirds the dear yearly value, the appli-
cation must be made by the lessee and lessor
jointly, the effect of the exchange being in such
cases to shift over both the leasehold interest and
the reversionary interest from the lands given up
ICnesand
minerals,
rig^hts of way,
and easements
may be ze-
Ber?ed.
Exohanffe of
copyhold
lands.
Exchange of
glebe lands.
Who can
apply for an
exchange.
BXCHANGES, ETC. UNDBB THE INCL06UBE ACTS. 447
to the lands receiyed. Where, however, land has
been leased for a term originally exceeding 100
years, and no rent or acknowledgment has been
paid or given for 20 years, or the reversioner is
unknown, the owner of such lease can alone apply
for an exchange.
(iii.) Where a person is in possession or receipt under
any sequestration, extent, elegit or other writ of
execution, or as receiver under an order of the
High Court of Justice, then such person, jointly
with the person who otherwise would be in posses-
sion or receipt, are the persons to apply.
(iv.) Where the person interested is an infant, lunatic,
idiot, or maiTied woman, or under any other legal
disability, or beyond the seas, the guardian, trus-
tee, committee of the estate, husband, or attorney
is ^e person to apply ; but in the case of property
belonging to a married woman, the practice is to
require the consent of both husband and wife.
Where, however, a married woman is to be deemed
2i,feme sole within the Married Women's Property
Act, 1882, as regards lands belonging to her pro-
posed to be exchanged, she is not under the dis-
ability of coverture as regards such lands, but may
herself alone apply.
11. The same provisions apply generally to applicants for Who can
partition and division, but in a partition lessees need not join apply for
and cannot dissent ; and where the lands are held under one JJ^q^^ ^^
entire rent, such rent is to be apportioned.
12. Printed forms of application may be obtained from the The applica-
office of the Board of Agriculture, No. 3, St. James's Square, *^^^'
London, and in all cases the application should be submitted
in draft to the Board prior to its execution by the persons
interested, together with the plan and valuation. It should
not be executed until approved by the Board and all necessary
amendments have been made.
When the lands to be exchanged form part of an estate, it
is desirable, for the purposes of identification from the adver-
tisements, that the name of the estate should be given ; for
the same reason, in the exchange of cottages, gardens, or
pieces of land not known by particular names, iiie occupiers'
names should be stated.
When lands are in more than one parish, the lands of each
parish must be kept distinct.
13. Every parcel held under a different title, or for a dif- Lands held
ferent estate, or subject to separate charges, as well as the under differ-
land for which sudi parcel is to be exchanged, must be sepa- ®^* tiUes.
448
APPENDIX I.
rately entered in tlie application, and the respective values of
eacli must in the valuation be shown to be equal. Particular
attention is called to -this requisition, which is of great import-
ance to the exchanging parties, with reference to future deal-
ings with the land, since, as the titles and incumbrances are
shifted by operation of the exchange from the lands given up
to those received, unless the lands held under different titles,
or subject to separate incumbrances, and the equivalent for
them, be kept distinct, a landowner might after an exchange
find himself possessed of land to which several titles attached,
without being able to distinguish the lands held under each.
The subdivision may be made thus in the schedule of the
application : —
FIBST SCHEDITLE.
SECOND SCHEDULE.
Descrip-
tion.
FabtI.
Whiteacre
Pabt 2.
LoDglaads
Eztont,
A. B. p.
10 0
8 0 0
i(
Estate."
Tenant for
life.
Fee simple
^Tenure.
ti
Freehold
Freehold
In exchange for
In exchange for
Descrip-
tion.
Part 1.
Blackacre
Part 2.
Hopley
Extent.
A. R. p.
1 0 80
12 1
«
Estate."
Fee simple
Loherit-
anoe.
«*Ttotae."
f^«ehold.
Copyhold of
the manor
of .
Valuation by
a competent
vainer neces-
flary.
What the
valuation
should con-
tain.
14. The leading principle of an exchange being that the
lands on each side shall be of equal value, it is necessary that
they should be valued by a competent valuer.
The name and residence of the valuer proposed to be em-
ployed should be submitted to the Board for approval before
the valuation is undertaken. The vsduer selected must be
competent and trustworthy, and not the agent of or connected
with either of the parties exchanging, and if he has not acted
in a similar capacity in any previous exchange, it will save
time if, when submitting his name, the names and addresses
be also given of two gentlemen who are competent to testify
to his trustworthiness and ability as a valuer.
There is no objection to a joint valuation made by two
valuers acting for the two parties, where the applicants so
desire.
In exchanges of glebe for other lands it would probably
facilitate the obtaining the consent of the bishop if his approval
were given to the selection of the valuer.
1 5. The Board do not issue a form of valuation, but the
valuation should be written on separate paper the same size
I
EXCHANGES, ETC. UNDER THE INCLOSTJRE ACTS. 449
as the printed form of application, and, subject to drcum-
stances, as in the case of biulding land, it must show : —
(i) The annual rentable value of each separate field or other
hereditament,
'ii) The fee simple value of the property.
,iii) The number of years' purchase by which such fee simple
value is arrived at.
(iv) The nature of the soil and buildings thereon, and state
of repair.
(v) The value of the timber, if there be any.
(vi) The outgoings, if any: — see paragraphs 17 and 18.
(vii) The objects of the exchange, and the particular circum-
stances which render it desirable,
(viii) A certificate to the following effect must also be
added : —
I hereby certify that I am not the agent of or con-
nected with either of the parties to this exchange ; and
having personally examined on the ground, and valued
the lands and hereditaments proposed to be exchanged,
I further certify that the map correctly represents the
present state of the lands, and that after the best in-
quiry I can make, I believe the applicants to be respec-
tively in possession or receipt of the rents and profits
of the same, and that the proposed exchange is just
and reasonable, and will be mutually beneficial to the
parties interested.
[This certificate must be signed by the valuer who actually
made the valuation, and not by the firm of which he may be
a member.]
16. In the event of the number of years' purchase or the Reasons for
value per acre of any portion of the lands differing from that variations in
of any other portions, or from the number of years' purchase ^^^^'
usually adopted in the district in estimating the value of
similar property, the reasons for such deviation must be
given ; and if the land possesses any special or accommodation
value to the estate to which it will be attached, the particulars
should be stated.
17. The valuer should ascertain the several charges and Ontgoings.
outgoings, such as tithe rentcharge, land tax, chief rents, &c.,
and should specify them in the valuation ; and he should also
en>ressly state whether the calculations have been made
subject to such charges being paid by the owner or the
occupier.
In valuing tithe rentcharge as a deduction, it should not
exceed twenty-five years' purchase, which is the rate fixed by
the Tithe Acts for compulsory redemption.
When the lands dealt with, or any of them, are not charged
E. GO
450
APPENDIX I.
with separate tithe rentcharges, but are liable in common with.
other lands, the valuer should estimate and state the sum or
sums which on an apportionment would be fairly chargeable
on the lands dealt with, and he should also say whether the
parties desire to have the amounts so stated legally fixed on
the lands by means of an altered apportionment. No sub-
division of tithe rentcharge in an altered apportionment can
be less than 5s. , but two or more parcels may be braced
together to a charge of not less than Ss., where they are
separately too small to bear that amount [see ''Instructions
for altered apportionments," issued by the Board of Agricul-
ture (Tithe Department)].
Charges 18. Special attention is called to the charges which do not
which do not gj^jf^ Qy^p qq ^^ exchange uinder the Indosure Acts, but
^^^' remain charged upon the same lands as were previously liable,
and which therefore require to be stated and deducted ; such
as land tax, tithe rentcharges, chief or quit rents on freehold
lands, drainage or improvement rentcharges, and the rates
levied by Drainage Commissioners.
Quitrents on copyhold or customary lands do shift over, and
therefore are not to be deducted.
Equality of
exchange.
Yalnation of
copyhold
land.
Kewhoundary
fenoeB.
19. Should the value in money of the respective lands or
hereditaments given or taken in exchange not be equal, the
circumstances and peculiarities must be stated which are
assumed to counterbalance such inequality.
There is no power to authorise a payment of money for
equality of exchauj^e or partition. The only provision for
compensating a deficiency is by the creation of a perpetual
rentcharge, to be charged on the land of greater value, or a
sufficient part of it, in favour of that of less value, but such a
rentcharge can only be created where the deficiency which
requires to be compensated does not exceed one-eighti[L of the
value of the lands which are deficient. It is found, however,
that such rentcharges are often inconvenient in practice, and
the Board recommend that, when possible, equality should
be obtained either by adding land on one side or withdrawing
a portion on the other.
20. In the exchange of copyhold land for freehold, the
effect of which is to shift all the copyhold incidents from the
land theretofore copyhold and attach them to the land which
by the exchange becomes copyhold, it is obvious that to value
one side as copyhold and the other as freehold would not
afford a fair basis for comparison of values ; both sides must
therefore be valued as if they were freehold, and the valuer
in such cases must distinctly state that he has done this.
21. It should be stated in the valuation by whom new
boundary fences, if any, are to be made and maintained.
EXCHANGES, ETC. UNDER THE INCLOSURE ACTS.
451
22. The yaluation must bear appraisement stamps of an Stamp on
amoimt calculated according to the following scale on the fee- ^alT^tio^*'
simple value of each side of the exchange separately : —
Not aboTO 61. . .
10/. ..
20/.- . .
30/. ..
>i
£ a, d.
0 0 3
0 0 6
0 10
0 16
£ $. d,
NotaboTe40/. ••020
60/. .. 0 2 6
100/. ..060
i>
»>
Not abore 200/. . •
„ 600/.,.
AboTO 600/. . •
£ 9. d.
0 10 0
0 16 0
10 0
The total duty may, however, be expressed by one stamp,
which must be impressed within fourteen days of the date of
the valuation ; but as the valuation may require alteration, it
is desirable that it should in the first instance be sent to the
office as a draft, without date or signature.
23. An exchange will generally be facilitated and expense The map.
saved by using, if published, the ordnance map, the sheets of
which can be obtained at very small cost. Otherwise the
map which accompanies the application should be on tracing
doth, and may be a copy from any good tithe map, or from
any other map of sufficient accuracy for estate purposes, of
which the Board must be satisfied. When the exchange is
of town property the map should be on a sufficiently large
scale to show all details clearly. The map must be re-
vised, if necessary, to represent the present state of the lands
dealt with, and the names of the owners of the immediately
adjacent lands must be written on it. A scale and meridian
line must be drawn upon the map, and the lands in the first
schedule should be edged with red, those in the second
schedule with green.
When the parcels are small or detached, sufficient sur-
rounding details, or other well defined landmarks, must be
given on the map to admit of the certain identification on the
ground of the lands proposed to be exchanged.
When portions only of fields are to be dealt with, the entire
fields should be drawn upon the map, and the new boundaries
should be fixed by distances given in figures, from actual
measurements taken on the groimd from the adjacent angles
of the fields or other existing points. The new boundaries
should also be marked out upon the ground.
24. On receipt of the application, plan, and valuation, by Mode of
the Board, they are examined and tested, and any remarks or procedure,
requisitions which may arise are sent for replies, and when
these are satisfactory, and the application and plan are finally
settled, the application is sent to oe fair-copied and signed by
the parties interested.
25. The application having been signed and returned to the Advertise-
office is finaUy approved, and the exchange, partition, or ment.
G q2
452
APPENDIX I.
ObjeotiaiiB.
The Older of
ezdhange.
Order of ex-
change con-
olusiye, bat
errors may be
oorreoted Dy
the Board.
Fees and
expenses of
Board of
Agrionltnre.
Valaer's
charges.
diyision, as required by the Inclosure Acts, is advertised in a
local newspaper for three snccessive weeks. The Acts require
that three months shall elapse after the last advertiaement
before the order of exchange, &c., can be issued.
26. Any person having an estate in or charge on the land
is, during these three months, entitled to dissent from the
exchange, partition, or division, and such dissent, until
removed, is a bar to further proceedings in the matter.
27. When the three months have expired, and if no notice
of dissent has been received, the Board prepare a draft of the
proposed order of exchange, partition, or division, and the
necessary plans, which are sent for the approval of the parties,
with a note of the costs incurred. On the return of the draft
order and map approved, and payment of costs, the order of
exchange, &c., is engrossed and confirmed by the Board. The
original order is deposited in the office of Uie Board of Agri-
culture, and copies are furnished to the parties to the exchange,
partition, or division, or their authorised agents.
28. An order of exchange, partition, or division operates
without any further deed, or any trand^er of title deeds, and
the order is conclusive evidence that all the directions of the
Acts have been complied with. But any fraudulent or other
error, or omission, may be corrected by the Board.
29. The fees to be taken on exchanges, partitions, and
divisions are on the following scale : —
On an order of exchange, partition, or divi- £
sion, where the aggregate value of the
land or other property dealt with does
not exceed 100/. . .
Where the aggregate value exceeds 100/.
and does not exceed 200/.
For every further 100/. or fraction of 100/.
not exceeding 5,000/.
For every 100/. or fraction of 100/. exceed-
ing 5,000/. . .
But in no case shall the fee exceed 50/.
On the amendment of any confirmed order 2 0 0
The expenses incurred by the Board are payable by the
parties in addition to the fee, and comprise cost of advertising,
of preparing plans to be attached to the order, of engrossing
the order, and of Inland Kevenue stamps.
80. The valuer's charges are paid by the parties direct, and
the Board strongly recommend that an arrangement should
be made with the valuer as to his remuneration before his
valuation is undertaken.
8,
d.
1 0 0
2 0 0
0 5 0
0 2 6
BXCHANGES, ETC. UNDER THE INCLOSTJRE ACTS. 453
81. ExdiangeB, &c., can he carried throneli by meanB of
correspondence, without the necessity of employing a London
agent, and, if proper arrangements are made, at moderate
cost. The Board are at all times ready to afPord information
with a view to facilitating the proceedings.
Board of Agriculture,
8, St. James's Square, London, 8.W.
Application for Exchange.
N.B. — ^Every application for an exchange should, in the first instance, be
sent np unsigpied, and a map and valuation should accompany it.
The only exception to the latter requirement is where there is a
doubt whether the exchange can be carried out, in which case the
Board will be ready to consider the circumstances before the parties
go to the expense of a valuation.
When sending up the draft application for the first time, be g^ood
enough to give the dates of any previous correspondence which may
have passed with the Board on the subject.
To the Board of Agriculture.
We, the imdersigned, of , in the county
of , and of , in the county of ,
being the persons interested respectively, under the pro-
visions of the InclosTire Acts, 1845 to 1882, in the lands
and hereditaments hereinafter mentioned, with the ease-
ments and appurtenances thereunto belonging, and being
desirous of effecting an exchange, as hereinafter men-
tioned, hereby apply to you to direct enquiries whether
such proposed exchange would be beneficial to the owners
of such respective lands and hereditaments, and in case
you should be of opinion that such exchange would be bene-
ficial, and that the terms thereof are just and reasonable,
to proceed with the same under the provisions of the said
Actj9.
Land and Hebbditaments in which the above-named
is interested, situate in the (a), in the county of ,
(a) Parish, or township and parish.
454
APPENDIX I.
and proposed to be exchanged for the lands and heredita-
ments hereinafter specified (6).
No.
on
Map an-
nexed.
No.
on
Tithe
Map.
Description.
Extent.
Estate of Person
interested;
whether in fee
simple, fee tail,
for life, or
how otherwise.
Tenure;
whether
Freehold,
Copyhold,
or how
otherwise.
A.
B.
P.
•
•
NoTB. — If the lands to be exchanged form part of an estate, it is de-
sirable, for the sake of identity, that this should be stated ; for the same
reason, in the exchangee of cottages, gardens or pieces of land not known
by particular names, the occupiers' names should be given. When lands
are in more Ihan one parish, the lands of each parish must be kept
distinct.
Every parcel held under a different title, or for a different estate, as
well as the land for which such parcel is exchanged, must be separately
entered in the application, and the respective values of each most be
shown to be eqoal in the valuation.
Witness our hands to the foregoing application this — — -
day of , in the year of our Lord one thousand
eight hundred and .
[The consents of the bishop of the diocese, and the patron
of the benefice, bein^ necessary where lands are held in right
of any church, chapd, or other ecclesiastical benefice, should
be given as follows]
We, the undersigned, , lord bishop of the diocese of
, and , of , in the county of , patron
of the benefice hereinbefore mentioned, do hereby consent to
the foregoing application.
(Signed)
[The consent of the lord of the manor, being necessary to
the exchange of copyhold or customary land, should be given
as follows]
I, the undersigned , of , in the county of
-, lord of the manor of
sent to the foregoing application.
(Signed)
aforesaid, do hereby con-
(h) There will be two schedules of this description in the applioatioa.
BXCHANGBSy ETC. T7NDBB THB INCLOSURB ACTS.
465
ApplioatioxL for Partition.
It IB desirable that applicatioiiB for partition should be perused and ap-
proved hy the Board before being exeonted.
When sending np the draft application for the first time, be good enough
to giye tne dates of any previons oorrespondenoe whidi maj have
passed with the Board on we subject.
To the Board of Agriculture.
I, the undersigned , of •
>, in the county of -
being the person interested under the provisions of the
Inclosure Acts, 1845 to 1882, in undivided
parts or shares in the lands and hereditaments hereinafter
mentioned, and I, the undersigned , of , being
the person interested under the provisions of the said Acts in
undividea
the remaining
part or share in the
same lands and hereditaments, and being desirous of effecting
a partition, as hereinafter mentioned, hereby apply to you to
direct enquiries whether such proposed partition would be
beneficial to the respective owners of sucn undivided parts ;
and, in case you should be of opinion that such partition
would be beneficial, and the terms thereof just and reason-
able, to proceed with the same under the provisions of the
said Acts.
Lauds (a) and HEBEDixAMEinis proposed to be allotted in
severalty to the above-named , situate in the parish of
, in the county of , in respect of his un-
divided — ^^- parts or shares in such lands and hereditaments,
and in the lands and hereditaments proposed to be allotted in
severalty to the said —
No.
on
Map an-
nexed.
ill
Description.
Extent.
A.
B.
Estate of Person
interested ;
whether in fee
sinmle, fee tail,
n>r life, or
how otherwise.
Tenure;
whether
Freehold,
Copyhold,
or how
otherwise.
Witness our hands to the foregoing application this
day of , in the year of our Lord one thousand
eight hundred and .
(a) There will be two schedules of this description in the application.
456 APPENDIX !•
[The consent of tlie lord of the manor, being necessaiy to the
partition of copyhold or customary land, should be given as
follows]
I, the undersigned , of , in the county of
, lord of the manor of ■ aforesaid, do hereby
consent to the foregoing application.
(Signed)
A pplication for Sivision of Intermixed Lands.
(8 & 9 Vict. c. 118, s. 148.)
To the Board of Agriculture.
We, the undersigned, being separately interested, according
to the provisions of the Inclosure Acts, 1845 to 1882, in the
parcels of land set opposite our respective names in the first
schedule hereunder written (a) and which are so— (5)
into parcels of (c) that the same cannot be (rf)
to the best advantage, but which form together a tract which
may be divided into convenient parcels, and being desirous
to have the whole of such tract divided into convenient parcels,
to be allotted as mentioned in the second schedule hereunder
written, in lieu of the old parcels.
Hereby apply to you to direct an enquiry whether such
proposed division and allotment would be beneficial to the
owners of such lands, and in case you shall be of opinion that
the proposed division and allotment would be beneficial, to
proceed with the same under the provisions of the said Acts.
(a) WhicH are not subject to be inolosed under the said Act, or which
are subject to be inoiosea under the said Act, but as to which no pro-
oeedinga for an inclosure are pending (as the case may be).
{b) Litermixed or divided, or intermixed and divided (as the case
may be).
(c) Inconvenient form or inconvenient quantity, or inoonyenient form
and quantity (as the case may be).
(d) Cultivated or occupied, or cultivated and occupied (as the case
majr be).
SXCHAWQES, ETC. XJNDBB THE IKCLOBUBB ACTS.
lliii
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Mi
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in
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PI
OS'S
*
468 APPENDIX I.
Witness our hands to the foregoing application this
day of , in the year of onr Lord one thousand
eight hundred and .
[The consents of the bishop of the diooese, and patron of the
benefice, being necessary where lands are held in right of any
churchy chapel, or other ecclesiastical benefice, should be giren
as follows]
We, the undersigned — , lord bishop of the diocese
of , and of , in the county of ,
patron of the benefice hereinbefore mentioned, do hereby
consent to the foregoing application.
(Signed)
[The consent of the lord of the manor, which is necessary in
the case of copyhold or customary land should be giyen as
follows]
1, the undersimed , of , in the county
of , lord 01 the manor of aforesaid, do hereby
consent to the foregoing application.
(Signed)
( 469 )
APPENDIX II.
Information and directions as to the mode in whicli Applica-
tions for the Beg^olation or Inclosnre of Commons nnder
the Inclosare Acts, 1845 to 1882, are to be made to the
Board of Agricnltnre; with explanations respecting
the law relating to the Eegnlation and Inclosare of
f. Bef erenoefl to
Commons. ^^ Commons
Act, 1876.
1. Application may be made to the Board of Agriculture g^ 2.
for a Provisional Order
(1.) For the regulation of a common ; or
(2.) For the inclosure of a common ; or
(3.) For the regulation of a part of a common, and the in-
closure of the remainder : but in this case the appli-
cation must be dealt with as if the respectiye parts
were separate commons.
N.B. — InolostiTe in severalty-, as opposed to regpilation, will not be sane- Preamble,
tioned, unless it can be proved, to the satisfaction of the Board and
of Parliament, that inclosare will be of benefit to the neighbourhood
as well as to private interests, and to those who are legally interested
in the common.
2. The persons making the application must represent at Sect. 2.
least one-third in value of the interests which are proposed to
be affected by the Provisional Order.
In the case of a suburban common (see par. 7) the urban Beet. 8.
sanitcuy authority may, with the consent of persons repre-
senting one-third in value of the interests proposed to be
affected, make application for the regulation of such common,
with a view to the benefit of their town.
3. A Provisional Order for the regulation of a common may Sect. 3.
provide, generally or otherwise, for the "adjustment of
rights," in respect of such common, and for the " improve-
ment " of such common, or for either of sach purposes.
The adjustment of rights in respect of a common comprises Sect. 4.
all or any of the following things :
(1.) A!s respects rights of common of pasture in a common,
being waste land of a manor, — ^the determination of
the persons by whom, the stock by which, and the
times at which such common of pasture is to be ex-
ercised ;
460 APPENDIX II.
(2.) Ab respects rights of common of turbazy, or taking of
estovers, or taking gravel, stone, or otherwise inter-
fering with the soil of the common, being waste land
of a manor, — the determination of the persons by
whom and the mode and place or places in which,
and the times at which such rights are to be ex-
ercised ; also, on compensation made to any person
aggrieved, either by grant of a right of equal value,
or with his consent in writing, in money,— the restric-
tion, modification, or abolition of all or any of such
rights which may permanently injure the common ;
(3.) As respects rights of common in land which is not waste
land of a manor, — ^the stinting or other determination
of such rights, and the persons by whom, and the
mode in which, and the times at which such rights
are to be exercised ; as also, on compensation miside
to any person aggrieved, either by grant of a right
of equal value, or, with his consent in writing, in
money, — the restriction, modification, or abolition of
all or any of such rights which may be injurious to
the general body of the commoners or to me proper
cultivation of the land ;
(4.) As respects any common, whether it is or is not waste
land of a manor, — the determination of the rights and
obligations of the lord of the manor, severalty owners,
or other person or persons entitled to the soil of such
common ; as also, on compensation made to any person
aggrieved, either by grant of a right of equal value,
or, with his consent, in money, — ^the restriction, modi-
fication, or abolition of all or any of such rights ; and
in particular, in the ca«e of severalty owners, of all
or any of such rights which may be injurious to the
general body of the severalty owners or to the proper
cultivation of the land ;
(5.) Generally as respects any common, whether it is or is
not waste land of a manor, — the determination of any
rights and settlement of any disputes relating to
boundaries, rights in the soil or in the produce of the
soil, or otherwise, whether arising between the com-
moners themselves, or between the commoners in
relation to the lords of the manors, severalty owners,
or other person or persons entitled to the soil of the
common, which settlement may be conducive to the
interests of all or any class of persons interested in
the common.
Sect. 6. The improvement of a common comprises all or any of the
following things ; that is to say,
(1.) The draining, manuring, or leyeUing of the common ;
REOULATION OR INCLOSURB OF COMMONS. 461
(2.) The planting trees on parts of such common, or in any
other way improving or adding to the beauty of the
common ;
(3.) The making or causing to be made bye-laws and re-
gulations for the prevention of or protection from
nuisances, or for keeping order on the common ;
(4.) The general management of such common ;
(5.) The appointment from time to time of conservators of
the common for the purposes aforesaid.
4. A Provisional Order may be issued for the inclosure of a Sect. 6.
common in accordance with the provisions of the Inclosure gect. 10
Acts, 1845 to 1882 ; but the Commons Act, 1876, requires sub-sect. 4.
that special information shall be furnished to the Board as to
the advantages the applicants anticipate from the inclosure of
the common as compared with its regulation, and also as to
the reasons why an inclosure is expedient when viewed in rela-
tion to the benefit of the neighbourhood (a).
5. In any Provisional Order, such of the following terms Sect. 7.
and conditions for the benefit of the neighbourhood, as are
applicable to each case, are required by the Commons Act,
1876, to be inserted ;
(1.) That free access is to be secured to any particular
points of view ;
(2.) That particular trees or objects of historical interest
are to be preserved ;
(8.) That there is to be reserved, where a recreation ground
is not set out, a privilege of playing games or of
enjoying other species of recreation at such times
and in such manner and on such parts of the common
as may be thought suitable, care being taken to
cause the least possible injury to the persons in-
terested in the conmion ;
(4.) That carriage roads, bridle paths, and footpaths over
such common are to be set out in such directions as
appear most commodious ;
(5.) That any other specified thing is to be done which may
be thought equitable and expedient, regard being
had to the benefit of the neighbourhood.
6. Before an application is made to the Board, the appli- Sect. 10,
cants must, in every case, publish, in the form approved by "^^-^^ot. 1.
the Board (5), an advertisement in the newspaper or newspapers
having the largest circulation in the neighbourhood of the
common, giving notice of their intention to apply to the
(a) A printed form of the questions to which the Board require answers
to oe given will be furnished bj the Board on request.
lb) See p. 464, post.
462 AFPENDIX II.
Board for a Froyisional Order. In ordinary cases two inser-
tions will be sufficient, with an interyal of a week between
each.
Seot. 8. 7. In the case of a suburban common, that is to say, any
common which is situate wholly or pardy in any town or
towns, or within six miles of any town or towns, notice of the
intended application must be served on the urban sanitary
authority or authorities. A ''town" means any municipal
borough, or improyement act district, or local goremment
district, haying a population of not less than 5,000 inhabitants.
The population is to be reckoned according to the last pub-
lished census, and the distance is to be reckoned in a direct
line from the town hall, or if there shall be no town hall,
then from the cathedral or church, if there be only one
church, or, if there be more churches than one, then from the
principal market place of such town to the nearest point of the
suburban common.
Seot. 10. .8. The application must be on a form supplied by the Board,
and be accompanied by a map on tracing cloth, dearly defining
the land proposed to be dealt with ; also by copies of the news-
papers containing the advertisement of the intended applica-
tion, and, in the case of a suburban common, proof of service
of notice on the sanitary authority or authorities.
The names of the owners of the lands adjoining the common
should be marked upon the map.
9. When forms of application are applied for, it should be
stated whether they are required for "regulation," or for
" inclosure," or partly for one and partly for the other.
Sect. 2. 10. In case of an application partly for regulation and partly
for inclosure, both forms must be filled up and signed, and the
boundaries between the respective parts must be set out on
the map.
Seot. 10, 11. On receipt of an application, accompanied by the bef ore-
Bub-seot. 6. mentioned documents, the Board will take the matter into
consideration, and, if satisfied that 2k primd facie case has been
made out, and that, regard being had to the benefit of the
neighbourhood as well as to private interests, it is expedient
to proceed further, they will order a local inquiry to be held
by an Assistant Commissioner. A deposit, on account of the
expenses which may be incurred, of such sum as the Board
in each case may deem necessary, will be required before the
local inquiry is held.
Seot. 11. 12. The Assistant Commissioner will inspect the common,
and, after not less than twenty-one days notice, published as
directed by the Commons Act, 1876, will hold public meetings
BBGITlATION OB IKCL0ST7BB OF COMMONS. 463
in tlie locality (one at least of which will be held in the evening,
between the hours of 7 and 10 o'clock), for the purpose of
hearing all persons desirous of being heard in relation to the
subject matter of the inquiry, and of making such other in-
quiries and gaining such information as may enable him to
report fully to the Board thereon.
13. After considering the Assistant Commissioner's report, Sect. 12.
the Board, if satisfied that the reg^ulation or indosure is ex-
pedient, wiU frame a draft Provisional Order, setting forth the
provisions to be made for the benefit of the neighbourhood
and for the protection of private interests, and will deposit a
copy of the same in the parish for the consideration of the
pa^es interested, and will give public notice of such deposit.
14. If the consents required by the Act, that is to say, of Sect. 12,
persons representing at least two-thirds in value of such inte- sub-seot. 5.
rests in the common as will be affected by the Provisional
Order, and of the lord of the manor in case of land waste of
any manor or to the soil of which the lord is entitled, are given
to the draft Provisional Order as originally deposited, and to
any modifications thereof , the Provisional Order will be deemed
to be final, and the Board will make a report certifying that
it is expedient that such Order should be confirmed by Parlia-
ment.
15. When the freemen, burgesses, or inhabitant house- Seot. 12,
holders of any city, borough or town are entitled to rights of Bub-aeot. 6.
common, or other interests in the common, the consent of two-
thirds in number of such freemen and burgesses so entitled,
as may be resident in such city, borough, or town, or within
seven miles thereof, or of such inhabitant householders, must
be given to the Provisional Order.
16. If the report of the Board is referred to a committee of Sect. 12,
either House of Parliament for consideration, and any modifi- *^^'8®o*« ^^*
cations are recommended, the Board may modify the Provisional
Order accordingly, and if such modifications are consented
to in the S€une manner as the Provisional Order originally
deposited, the Board will make a special report to that effect.
17. After the Bill confirming the Provisional Order has
received the Boyal Assent, the Board will colivene a meeting
of the parties interested, for the purposes of appointing a
valuer to carry out the regulation or inclosure of the common,
and of resolving upon instructions to the valuer not incon-
sistont with the terms of the Provisional Order. But no Seot. 32.
appointment of a valuer will be valid until it has been con-
firmed by the Board.
18. The regulation or inclosure will then proceed as directed
by the Inclosure Acts, 1845 to 1882.
464 APPENDIX II.
19. The Inclosure Acts, 1845 to 1882, are as follows : —
8&9Viot.c. 118(theIiiclosureAct,1846); 9&10Vict.
c. 70 (the Inclosure Act, 1846) ; 10 & 11 Vict. c. Ill
(the Inclosure Act, 1847); 11 & 12 Vict. c. 99 (the
Inclosure Act, 1848) ; 12 & 13 Vict. c. 83 (the Indo-
sureAct, 1849); 14 & 15 Vict. c. 53 (the Indosure
Commissioners Act, 1851); 15 & 16 Vict. c. 79 (the
Inclosure Act, 1852) ; 17 & 18 Vict. c. 97 (the Inclo-
sure Act, 1854) ; 20 & 21 Vict. c. 31 (the Inclosure
Act, 1857) ; 22 & 23 Vict. c. 43 (the Inclosure Act,
1859) ; 31 & 32 Vict. c. 89 (the Inclosure, &c. Ex-
penses Act, 1868) ; 39 & 40 Vict. c. 56 (the Commons
Act, 1876) ; 41 & 42 Vict. c. 56 (the Commons (Ex-
penses^ Act, 1878); 42 & 43 Vict. c. 37 (the Com-
mons Act, 1879) ; 45 & 46 Vict. c. 15 (the Common-
able Bights Compensation Act, 1882).
FoBM OP Advertisement.
Common.
Notice is hereby given that application is about to be made
to the Board of Agriculture, under the provisions of the In-
dosure Acts, 1845 to 1882, for a Provisional Order for the
(a) of Common, situate in the parish of ,
in the county of .
Dated this day of , 18 .
(Signature).
(a) Here state whether the applioation is for the regulation or for the
indosure of tiie oommon, or for the regulation of part and the indoBore
of the remainder.
Applioation to the Board of Agriculture for a Provisional
Order for the Hegulation of a Common under the pro-
visions of the Inclosure Acts, 1845 to 1882.
The land to which this application relates is situated in*the
(b) of in the county (c) of , and is com-
monly Known as .
We, the undersigned, being persons representing at least
one-third in value of such interests in the land above men-
tioned as are to be affected, propose the regulation of such
land, under the Inclosure Acts, 1845 to 1882, and submit to
the Board of Agriculture the information in respect to such
BBOULATION OB INCLOSTJBB OF OOliMOMS. 465
land and to the proposed relation, required by the ques-
tions (cQ hereunto annexed, b^eying such information to be
correct : And we hereby apply to the Board, if satisfied that
it is desirable, to issue a inovisional Order, and to certify that
it is expedient that such Provisional Order diould be connrmed
by Parliament.
(Signed) (0.
(b) Parifih or townflhip, or aeyeral parishes or townships, or extra-
parochial plaoe or places, as the case may be.
If the land is in any district not here properly named, insert the proper
description.
(e) brconnties.
(d) A printed form of the questions will, npon request, be sent to the
aimuoants by the Board.
(#) N.B. — ^All signatures under powers of attorney should be written
thus — "A. B., by CD., his attorney," and the powers, or certified
copies thereof, must aooompany this application.
AppLiOiLTiON to the Board of Agriculture for a Provisional
Order for the Indosure of a &>mmon under the provisions
of the Indosure Acts, 1845 to 1882.
The land to which this application relates is situated in the
(a) of — — ^ in the county {b) of and is com-
monly known as
We, the undersigned, being persons representing at least
one-third in value of such interests in the land above men-
tioned as are to be affected, propose the indosure of such
land, under the Indosure Acts, 1845 to 1882, and submit to
the Board of Agriculture the information in respect to such
land and to the proposed indosure, required by the ques-
tions (c) hereimto annexed, believing such information to be
correct : And we hereby apply to the Board, if satisfied that it
is desirable, to issue a Provisional Order, and to certify that
it is expedient that such Provisional Order should be con-
firmed by Parliament.
(Signed) id).
(a) Parish or township, or several parishes or townships, or extra-
parochial place or places, as the case may be.
If the Isuid is in aaj district not here properly named, insert the proper
description.
(b) Or counties.
{ej A printed form of these questions will, upon request, be sent to the
applicaQts by the Board.
{d) N.B. — All signatures under powers of attorney should be written
thus — ** A. B., by 0. D., his attorney," and the powers, or certified
(x>piee thereof, must accompany this application.
E. H H
( 466 )
APPENDIX III.
Lord ortenant
can compel
enfrandufie-
ment of copy-
hold.
Lord ortenant
oan compel
enfranomfle-
ment of any
manorial
incident.
Notice of
desire to
eufranchise.
COPYHOLD ENFEAN0HI8EMENT.
Hinnte of the Board of Agriculture as to proceedings on com-
pulsory Enfranchisements under the Copyhold Acts, 185S
to 1887, 16 ft 16 Vict. c. 61 (1862), 21 ft 22 Vict. o. M
(1868), and 60 ft 61 Vict. o. 73 (1887).
1. A lord or tenant oan compel enfranchisement of any
copyhold lands to which the tenant has been admitted, imlees
the tenant is a mortgagee not in possession, or the lands are
held for a life or lives, or for years, where the tenant has not
a right of renewal. But when the tenant was admitted before
the 1st of July 1853, he cannot avail himself of this power
until after payment or tender of such a fine, and, if the lands
be heriotable, the value of such a heriot as would be payable
on admittance on alienation subsequent to 1st July 1853, and
also of two-thirds of such a sum as the steward would have
been entitled to for his fees in respect of such admittance.
2. Any lord or tenant, or owner of any land liable to any
heriot, or to any quit rent, free rent, or any other manorial
incident whatsoever, may, subject to tiie provisions of the 48th
section of the Copyhold Act, 1852, require and compel the
extinguishment of such rights or incidents, and the release
and enfranchisement of the lands subject thereto, and the
proceedings thereon shall be the same as in the case of en-
franchisement of copyhold lands. If the lands be heriotable
and no heriot has become due or payable in respect of them
since the 30th of June 1853, a tenant or owner cannot avail
himself of this power until after payment or tender of the
value of such a heriot as would become payable in the event
of admittance or enrolment on alienation, and also of two-
thirds of such a sum as the steward would have been entitled
to for fees in respect of such admittance or enrolment.
3. A lord or tenant requiring enfranchisement, or extinguish-
ment of a manorial incident, must give notice thereof the one
to the other, and send a copy of the notice to the Board, with
an endorsement thereon, stating when and upon whom the
notice was served, and how served.
COVYKOLD ENFRANCHISEMENT.
467
4. The lord and tenant, after notice of the enfranchisement Lord and
has been delivered, may agree upon the compensation to be tenant may
paid for enfranchisement, subject to the approbation of the ^^J^JJ^io^
^oard. A form, showing the information to be furnished by *^
the steward in such cases, may be obtained on application to
the Board (a). A memorandimi of agreement wiU be found
at the foot of page 4 of the form (&).
5. The lord and tenant may, after notice of the enfranchise- Lord and
ment has been delivered, agree in writing that the Board shall ^^'^^^JJer
determine the compensation to be paid for enfranchisement. J^^ina-
A form of agreement, applicable to such cases, may be ob- tion of oom-
tained on application to the Board (c). penaation to
6. If the enfranchisement terms be not agreed upon between ® ^^
the lord and tenant, or determined by the Board, the con- ^v^u^^^*
sideration to be paid must be decided by a valuer, valuers, or *^ ^* ^®
umpire, duly appointed in manner following, that is to say: —
The lord and tenant may, in any case, jointly appoint one Joint appoint-
valuer. ment of
When the manorial rights consist only of heriots, rents, valuer,
reliefs, and licences at fixed rates to demise or fell Appointment
timber, or any of these, or where the land to be en- ?^ valuer ^7
franchised is not rated to the poor's rate at a greater ^^ °^*
net annual value than 307., the valuation shall, except
as next mentioned, be made by a valuer to be nominated
by the justices at a petty sessions holden for the division
or place in which the manor or a chief part thereof is
situate. Before either party applies to the justices to
appoint a valuer, he must give notice of his intention
to the other party, and a copy of the notice, as well as
of any appointment by the justices, should be forwarded
to the Board. Either party may, however, instead of
a valuer being appointed by the justices, have the
valuation made as set forth in the following paragraph,
provided he is willing to pay the additional expense
thereby incurred.
In aU other cases the person who has given notice of his Appointment
desire to enfranchise should appoint a valuer in writ- of separate
ing, and give notice thereof to the other party requiring i^ Jf^^^ ^
him to appoint his valuer. A copy of the valuer's tenant,
appointment and of the notice should be sent to the
Board, with the time and mode of service of the notice
endorsed thereon.
When the notice of the appointment of valuer has been
received the party on whom it has been served must
within 28 days appoint his valuer and send a copy of the
appointment botn to the opposite party and to the Board.
(a) P. 478, po9L {b) P. 480, post, {c) P. 478, post.
H H 2
468 APPENDIX ni.
Faflnre bj In any case where, after due notice as aforesaid, either
lord or traant party shall neglect or refuse for 28 days to appoint his
^|^^P° * valuer, the appointment devolves upon the Board, -who,
on being requested by either party, will appoint a
valuer.
iU>pointmeiit 7. The valuers, within 14 days after their appointment, and
of umpire. before they proceed, shall appoint an umpire, to whom the
whole matter, or any point in dispute between them, may be
referred. A copy of such appointment should be forwarded*
to the Board. If the valuers fail to appoint within 14 days,
the appointment devolves upon the Board, who, on being re-
quested by the valuers, or one of them, will appoint an
umpire.
Declaration of 8. Before any valuer or imipire shall enter upon his valua-
valoers or ^ion, he must, in the presence of a justice of the peace, make
umpire. ^^^ subscribe a declaration in the following form, which
should be annexed to the decision when forwarded to the
Board : —
" I do declare that I will faithfully, to the best
of my ability, value, hear, and determine the matters
referred to me under the Copyhold Acts.
Made and subscribed in the presence of , this — ^
day of , 18—."
InBtmctions 9. As the decision of the valuers must be delivered within
to be given to 42 days, each party should, without delay, furnish his valuer
valuers. ^j^j^ j^ description of the lands to be enfranchised and all other
necessary information; but should either party neglect or
refuse to do so, the valuers must proceed upon such informa-
tion as they can otherwise obtain.
Gironmstancee 10. The circumstances to be considered by valuers are men-
to be oon- tioned in section 16 of the Act of 1852, which is as follows: —
^^"^ *' -^^ making any valuation under this Act the valuers shall
take into account the facilities for improvement, cus-
toms of the manor, fines, heriots, reliefs, quit rents,
chief rents, escheats, forfeitures, and aU other incidents
whatsoever of copyhold or customary tenure, and all
other circumstances affecting or relating to the land
which shall be included in such enfrancmsement, and
all advantages to arise therefrom, and shall make due
allowance for the same."
Except that the value of escheat for want of heirs is not to
be taken into consideration, as under section 4 of the Copyhold
Act, 1887, the lord will continue to be entitled, after the en-
franchisement, to the same right and interest in the land
in case of escheat for want of heirs as he would have had if
the land had not been enfranchised.
OOPTHOLD SHVRAKCmSBlfBin:. 469
11. The valuers should determine the value of the manorial Deoision of
and other rights and incidents, such value in all cases to be a ^al^?™ o'
gross simi of money (rf). The valuers' decision must be for- ^"^P"®*
warded to the Board within 42 days after their appointment,
with the details of the valuation separately given. A copy of
the decision should also be sent at the same time to the lord
or steward and to the tenant or his attorney. If «the valuers
are unable from any cause to come to a decision within the 42
days, they, or either of them, must, before the expiration of
that period, refer the matter to the umpire, whose duty it will
then DO to make the decision, and furnish details and copies
of the same as before mentioned within 42 days of the refer-
ence to him.
12. The Board are empowered to extend the time for ap- Extension of
pointing valuers or an umpire, or the time within which they *™®.*T
should respectively deliver their decision, provided application oJ^^uere^d
is made to them within the respective periods of 28, 14, and delivery of
42 days previously mentioned. deoiaions.
13. A schedule containing the exact description under which Deeoription
the lands are to be enfrandiised should be annexed to every o* land to^
decision. The court-roll description by which the tenant was enfranchieed.
admitted or enroUed should be given in the schedule. If,
however, the parties agree to a more modem description of
the lands, in addition to the court-roll description, the same
should be signed by the steward of the manor, and by the
tenant or his attorney.
14. When the identity of the lands cannot be ascertained, Identity of
they are to be taken at the quantities mentioned, if in statute lands,
measure, in the court books or rolls, and if not so specified,
the quantities are to be determined by the valuers.
When the lands are not defined by a plan on the court-rolls, Maps,
the valuers, if requested in writing by either lord or tenant,
are to define the lands by a plan. The ordnance map, or a
tracing from it, will generally be found most convenient for
the purpose. Ordnance maps on the ^tVo ftnd 6-inch scales,
and larger scales for town properties, can be obtained from
Mr. Btcmford, 26 and 27, Cockspur Street, Charing Gross,
London, S.W., who will afPord full information respecting
them.
Except by agreement between the lord and tenant, a plan
is not to be required or made in any case in which it shall
appear that the lands have been for more than 50 years treated
as intermixed with other lands, and with boundaries incapable
of definition. When valuers have been appointed, a lord or
(i) See Fto. 30 as to the scale on whidh compensation should be based.
47*
itPPENDIX HI.
HmeralBand
other resezred
rights.
Board prepare
award of
enfranohifle-
ment.
Board to
oontinue oon-
ditions of user
for benefit
of publio or
other tenants.
When com-
pensation to
be a rent-
charge.
Compensa-
tion maj be a
g^ss sum at
option of
tenant.
Compensa-
tion to be
paid prior to
confirmation
of award.
Questions of
law or fact:
tenant may, in any case of doubt or difference of opinion as
to the identity of the lands, apply to the Board to ascertain
and define the boundaries thereof.
15. No enfranchisement can be made to extend to or afieot
the estate or rights of any lord or tenant in any of the mineral
or other rights mentioned in sect. 48 of the Copyhold Act,
1852, without his express consent in writing. Therefore,
when the tenant desires and the lord is willing to include and
extinguish such rights of the lord, the lord's consent must be
sent to the valuers before they enter upon their valuation, in
order that they may include the rights in their decision. A
form of consent may be obtained from the Board, and the
signed consent should be forwarded to them with the deci-
sion («).
16. When the amoimt of compensation has been duly ascer-
tained as above, and approved by the Board, they will prepare
the award of enfranchisement.
17. The Board have power under sect. 8 of the Act of 1887
to continue any conditions affecting the user of the land sub-
ject to which a tenant may have been admitted and created
for the benefit of the public or of the other tenants of the
manor, where any especial hardship or injustice would result
if the lands were released from such conditions.
18. When the enfranchisement is efPeoted at the instance of
the lord, or when the land can in the opinion of the Board be
sufficiently identified, and the compensation to the lord amounts
to more than one year's improved annual value of the land
enfranchised, the compensation will, unless the tenant other-
wise desires, consist of an annual rentcharge of 4/. per cent
per annum upon such gross sum, commencing from the date
of the notice to enfremchise, and issuing out of the land
enfranchised.
The rentcharges are payable on the 1st of January and the
1st of July in each year, but are redeemable by the tenant on
payment of 25 times the amount of the rentcharge.
The tenant has the option in aU cases of paying the com-
pensation in a gross sum of money ; but in case of enfranchise-
ment by award, he must within 10 days after the receipt of
the drait award give notice in writing to the Board oi his
desire so to pay.
19. Wlien the compensation for enfranchisement is a gross
sum of money, the receipt for the same must be produced to
the Board before the enfranchisement award can be con-
firmed.
20. If any questions of law or fact arise in the coxirse of the
{e) P. 481, pott.
COPTHOLD BNTRANCmSBMENT. * 471
valnations in any enfranchisement to be effected by an award
under the Oopyhold Acts, they may be referred to the Board.
21. If pending any proceedings the lord or tenant shall die, Prooeedings
there shall be no abatement of the proceedings, and any fresh pot to abate
admittance or enrolment must be made without the payment ^ °S^ ?t ^
of any fine, rehef , or heriot, and the compensation must be ^^ tenant,
ascertained as if the enfranchisement had been effected imme-
diately after the commencement of the proceedings.
22. Any lord may act. on his own behalf or may appoint an Who may act
agent other than his steward to act for him, but unless and *®' ^^^'
until he has ^ven written notice to the tenant and the Board
respectiYely fliat 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 respectively may treat his steward as his
agent for receipt of notices, making of agreements, and all
other matters relating to enfranchisement ; and in all matters
of procedure the steward shall be deemed to represent the
lora ; except that no steward shall without special authority
have power to consent on behalf of the lord to dealings with
the rights comprised in sect. 48 of the Copyhold Act, 1852.
23. When either the lords or the tenants are trustees, and When lords
one or more such trustees shall be abroad or shall be incapable o' tenants
or refuse to act, any proceedings necessary to be done by such *™ trustees,
trustees for effecting any enfranchisement imder the Copyhold
Acts may be done by the other trustee or trustees as the case
may be.
24. A married woman being the lady of the manor, or tenant Married
of any land or right of copyhold or customary tenure, shall, women,
for the purposes of the Acts, be deemed to be a, feme sole.
25. Minors, idiots, lunatics, or persons under any other Persons under
legal (disability or beyond the seas, are to be represented by disability or
the guardian, trustees, committee of the estate or attorney. 1^7*^^^ the
In default thereof, or in case the person interested be im-
known, then the Board wiU, upon application, nominate a
substitute to act for him. .
26. An agent or attorney may be appointed by power of Appointment
attorney by a lord or tenant, with full power to act as if the <>f agent by
principal had himself acted, in the following form : — attorney
" Manor of , in the county of .
I, A. B., of &c., do hereby appoint C. D., of &c., to be my
lawful attorney to act for me in all respects, as if I
myself were present and acting in the execution of
the Copyhold Acts.
Dated this day of one thousand
eight hundred and .
(Signed) A. B,"
472
APFEiTDix in;
Kotioes,
agreements,
and appoint-
ments to be
duly signed.
Service of
notices.
Copies of
nonce and
other dooa-
mentfi to be
sent to the
Board.
Scales'of
compensation
and allow-
ances to
▼alaers.
Steward's
compensation.
Exemption
frcnn stamp
duty.
Expenses.
The power of attorney, or a copy aufhenticated by two
witnesfies, ahould be sent to the Board.
27. Every notice, agreement, or appointment of yaluer, by
the lord must be signed by' him or nis agent or the steward,
or if given, or made, by the tenant, must be signed by him,
or by an agent duly autiiorised by power of attorney to act on
his behalf.
28. All notices may be served personally or left at the usual
place of abode or business of the person to be served, or sent
Dy post in a registered letter. When a notice is required or
authorised to be given to the tenant of any premises it may be
given by delivering the same, or a true copy thereof, to some
person on the premises, or if there is no person on the premises
to whom the same can be delivered, by fixing the notice on
some conspicuous part of the premises.
29. Copies of all notices and ap^intments should be sent to
the Board immediately they are given or made.
80. A scale of compensation for enfranchisement (/) and a
scale of allowance to valuers (y), framed pursuant to sect. 30
of the Copyhold Act, 1887, for guidance, may be obtained on
application to the Board.
The scale of compensation will probably facilitate the settle-
ment by agreement of the sum to be paid, especially in fine
certain cases, in which the compensation is usually of small
amoimt.
81. The compensation to be paid by a tenant to the steward,
in everv case of enfranchisement by award, is fixed by the
Copyhold Act, 1887, s. 27.
82. Agreements, decisions of valuers, and powers of attorney
Tmder the Copyhold Acts, are not chargeable with stamp
duty.
33. In case of any question as to the amount of the expenses
relating to enfranchisement, the matter may be referred to the
Board.
Board of Agriculture (Copyhold Department),
3, St. James' Square, London, S.W.
(/) P. 478, P9H.
ig) P. 476, poit.
y,^ A-^ /f/f k/sA/^.y%-
OOPTHOID BNFRANCHISSMSirr. 473
COPYHOLD ENFEANOHISEMENT.
»
Scale of Compensation in ordinary cases of Enfranchisement
of Copyholds of Inheritance, framed pursuant to section
SO of the Copyhold Act, 1887.
1. In fine arbitrary cases when a fine is payable on aliena- Fme arbitraiy
tion by, as well as on the death of, a tenant, Ulb compensation ^'^^^-
tor fines should not exceed the number of years' annual value
of the property according to the age of the tenant as set forth
in the table hereto annexed.
2. The table is calculated on the principle that a fine of two
years' annual yalue is payable on each change of tenancy;
therefore, in those manors in which the customary fine on
alienation by, or on the death of, a tenant is less than two
years' annual yalue, a proportionate reduction should be
made in the amount of the compensation.
3. In estimating the annual value of the property, no deduc-
tion should be made for land tax, but the quit rent should be
deducted, and, where there are buildings, allowance should
be made for keeping the buildings in repair. The gross
annual value of the land for the poor rate assessment may be
used when applicable, as the basis for ascertaining the annual
value.
4. When there are facilities for improvement or the land
has present or prospective building value, one twenty-fifth
part of the fee simple value may be taken as the annual value.
5. In fine certain cases when a fine is payable on alienation Fine certain
by, as well as on the death of, a tenant, the compensation for oaeee.
fines may be calcidated by multiplying the amount of the fine
by one half of the number of years' purchase given in the
table according to the age of the tenant.
6. The amount of compensation for a relief, if payable, to Beliefs,
be calculated in Uke manner as a fine certain.
7. The compensation for a heriot payable on alienation by, Heriote.
as well as on the death of, a tenant, may be calculated by
multiplying the value of the heriot by one half of the nimxber
of years' purchase given in the table according to the age of
the tenant.
8. The value of a heriot may generally be ascertained from
the average value of the last three heriots taken or paid in
respect of the property to be enfranchised. If that informa-
tion cannot be obtained, or will not a^ply, the following cir-
cumstances diould be taken into consideration in fixing the
474
APPBNDIX ni.
When fine
payable onlj
on one of
the events
of alienation
or death.
When fine
payable on
death of lord.
Quit rents
and other
annual pay-
ments.
Timber.
Forfeitures,
Escheat.
Special
customs or
drcum-
Btanoes.
value of a heriot: namely, the nature of the heriot, the
character and value of the property, the condition in life of
the tenant, and ako whether the heriot can be seized as well
without as within the manor.
9. The table being calculated on the assumption that fines
and heriots are payable both on alienation oy, and on the
death of, a tenant, when a fine, whether arbitrary or certain,
or a heriot, is payable only on one of those events, then only
one half of the compensation calculated as previously directed
should be given.
10. In manors in wbich fines or heriots are payable on the
death of the lord, as well as on alienation by, or on the
death of, a tenant, the compensation on enfranchisement
should be increased according to the nature and amount of
the customary fine or heriot payable in the manor on the
death of the lord.
11. The compensation for quit rents, free rents, and other
annual rents, services, or payments, should be ccdculated at
25 years' purchase.
12. Compensation for timber should be ascertained as
follows: — When by the custom of the manor the lord can
enter upon the land, and cut and carry away the timber
without the consent of the tenant, its whole value, after
making a sufficient allowance for repairs, should be given to
the lord. But if the lord cannot enter and cut without the
consent of the tenant, one half only of its value, after making
a sufficient allowance for repairs, should be given. If, how-
ever, there be any special custom in the manor relating to
timber, such custom should be regarded.
13. The compensation for forfeitures andaU other incidents
of copyhold tenure not hereinbefore provided for should not
exceed 20 per cent, of the annual value of the property. The
gross annual value for the poor rate assessment may be used,
when practicable, as the oasis for ascertaining the annual
value. If the property has facilities for improvement or
building, one twenty-fiith part of the fee simpe value may
be taken as the annual value.
14. The ri^ht of escheat being reserved to the lord under
the Copyhold Act, 1887, its v^ue is not to be taken into
consideration.
15. If there be any special customs or circumstances con-
nected with any manor which would afEect the compensation
payable for enfranchisement, they should be taken into con-
sideration, and due allowance should be made in respect of
them.
OOFTHOL0 SKFRANCHISBMENT.
475
16. This scale is for guidance only, and is not binding as a
matter of law in any particular case ; but the party requiring
enfranchisement should, in accordance with the Act, state to
the other party whether or no he is willing to adopt the scale.
Table referred to in the foregoing Scale of Compensation for
Enfranchisement.
Age of
Tenant.
Number of
Yean'
Poiohaae.
Age of
Tenant.
Nimil>erof
Tean»
ParoihaM.
Age of Tenant.
Number of
Years'
Pnrohaae.
•
M >
37
3-26
70
4-50
5 \
or under /
2*29
38
3-29
71
4-54
6
2-32
89
3-33
72
4-57
7
2-34
40
3-36
73
4-60
8
2-37
41
3-40
74
4-63
9
2-40
42
3-43
75
4-67
10
2-43
43
3-46
76
4-70
11
2-46
44
3-50
77
4-73
12
2-49
45
3-53
78
4-76
13
2-62
46
3-57
79
4-78
14
2-55
47
3-60
80
4-81
16
2-58
48
3-64
81
4-83
16
2-61
49
3-67
82
4-86
17
2-63
50
3-71
83
4-88
18
2-66
51
3-76
84
4-90
19
2-69
52
3-78
85
4-92
20
2-73
53
3-82
86
4-94
21
2-76
54
3-86
87
4-96
22
2-79
66
3-90
88
4-97
23
2-82
56
3-93
89
4-99
24
2-85
57
397
90
5-00
25
2-88
58
4-01
91
6-02
26
2-91
59
4-06
92
6-03
27
2-94
60
4-10
93
6-06
28
2-97
61
4-14
94
6-06
29
3-00
62
4-18
95
608
30
3-04
63
4-23
96
5-10
31
307
64
4-27
97
5-12
32
3-10
65
4-31
98
5-13
33
313
66
4-35
99
616
34
35
36
3-16
3-20
3-23
67
68
69
4-39
4-43
4-47
100 \
or upwards j
5-16
In constructing this table a fine arbitrary on admission has
been taken as equivalent to two years' annual value, and
whilst the average fine interval has been assumed to be 14
years, regard has been had to the age of the tenant on the
roUs.
Board of Agriculture (Copyhold Department),
8, St. James' Square, London, S.W.
476
APPENDIX ni.
OOPTHOLD ENFEANOHISEMENT.
Scale of Allowance to Valuers for servicei performed in
respect of Enfranchisements nnder the Copyhold Acts,
framed pursuant to section 80 of the Copyhold Act, 1887.
Allowance in respect of the annual yalue of the property
enfranchised: —
AnTiTial Valae.
AUowanoe.
£
£ 8. d.
Not exceeding 10
. 2 10 0
„ 25 .. .
..300
„ 50 .. .
..400
„ 75 .. .
..500
„ 100
..600
„ 125
..700
„ 150
..800
„ 200
..900
„ 250
. . 10 0 0
For eveiy 50/. aboye 250/. annual yalue, 1/.
In addition to the aboye, a further allowance in respect of
so much of the compensation as is not payable for fines, or
based on annual yidue, of 5 per cent, upon the amount of
such compensation up to 50/., and 2^- per cent, upon the
amount of such compensation, if any, in excess of 50/.
This scale does not include trayelling and other expenses
out of pocket, and is applicable only to oases of an ordinary
character, and in which there are no special circumstances.
Charges for tracings or plans, when necessaiy, will be
allowed; but the ordnance map should be used when ayailable.
When a case is referred to an umpire the yaluers will be
entitled to an additional allowance of from 2/. upwards, haying
regard to the time occupied for attendance before the umpire,-
This scale is for guidance only.
Board of Agriculture (Oopyhold Department),
3, St. James' Square, London, S.W.
CX)PTHOLO BNVBANGHI8BHEHT. 477
OOPYHOLD ENFRANCHISEMENT.
Hotioe from Lord or Tenant of desire for Enfranchiiement
Manor of — — , in the county of — — .
I , of , in the parish of — — , in the county
of , do hereby, pursuant to the provisions of the Copy-
hold Acts, give you notice of my desire mat the lands, copyhold
of the above manor, to which (a) admitted on or about
the day of , 18 — , shall be enfranchised under
the said Acts.
Dated this day of , 18 — .
(signature, stating whether lord or tenant.)
To , of ,
a tenant of the manor, or lord or steward of the manor.
Note. — ^A copy of this notice should be forwarded to the
Board of Agriculture (Copyhold Department), with an
endorsement stating when and how served.
(a) Yon were, or, I was.
ENFRANCHISEMENT TJNDEE THE COPYHOLD ACTS.
Hotioe from Lord or Tenant or Owner of desire for extinguish-
ment of Manorial Incidents, and Enfranchisement
Manor of , in the county of .
I , of , in the parish of , in the county
of , do hereby, pursuant to the provisions of the
Copyhold Acts, give you notice of my desire that the
(o) and other manorial incidents to which the lands
freehold or customary freehold of the above manor, shortlv
described in the schedide endorsed hereon, are liable, shaU
be extinguished, and the said lands be released therefrom,
and enfranchised under the said Acts.
Dated tius day of , 18 — .
(signature, stating whether lord, tenant, or owner.)
To , of ,
tenant or owner of the said lands, or lord or steward of
the manor.
The Schedule.
Note. — ^A copy of this notice should be forwarded to the
Board of Agriculture (Copyhold Department), with an
endorsement stating when and how served.
(a) Insert heriot, quit rents, or free rent8» ss the case may be.
]
478 APPENDIX III.
COPYHOLD ENERANCmSEMENT.
Agreement between Lord and Tenant or Owner that the
Board of Agricnltnre shall determine the compensation
for
Manor of , in the oonnty of .
enfranchisement.
We, , and , do hereby aeree that the com-
pensation for the enfranchisement of the lands comprised in
the notice of desire for enfranchisement given by the said
, dated on or about the -^ day of , 18 — ,
(o) the rights reserved by the Copyhold Act, 1852,
section 48, shall be determined by the Board of Agriculture
pursuant to the Copyhold Act, 1887, section 43.
Dated this day of , 18 — .
lord, or steward {b).
-^— tenant, or owner.
(a) Insert inclndinff, or, not including. Befeienoe to resenred rights
should be omitted if they do not belong to the lord.
(b) Steward may sign for the lord if reserved rights are not included ;
but if they are inoiuded, he cannot sign without special authority.
COPYHOLD ENFEANCHISEMENT.
Information to be fomiBhed to the Board of Agricnltnre
(Copyhold Department), in every case of Enfranchise-
ment under the Copyhold Acts.
Manor of , parish of , county of .
enfranchisement.
The lands are described in the schedule hereto.
1. Name in full and address of the lord.
2. Is the lord seised in fee simple, fee tail, for life, or how
otherwise ; and if not seised in fee, who is entitled to the first
Tested estate of inheritance in the manor ?
3. How is the compensation money proposed to be paid ?
To the lord ?
To trustees acting under the will or settlement under
which the lord holds? If so, give names, addresses,
and descriptions.
COPYHOLD ENFRANCHISEMENT. 479
To trostees to be nominated by the Board of Agrioul-
tore if there be no trustees acting under the will
or settlement, or if the lords be a corporation P
Into the Bank of Ihigland ex parte the Board of Agri-
culture?
To the Church Estates Oommissioners ?
To the Gtoyemors of Queen Anne's Bounty ?
Or, to the official trustees of charitable funds P
4. Is the manor incumbered; and if so, state the nature of
such incumbrance, and the names and addresses of the persons
entitled thereto, also what proportion the aggregate amotmt
of the incumbrances will bear to the value of the manor and
also to the value of the lands charged together with the
manor, if any, after the proposed enfranchisement shall have
taken place ?
5. Name in full and address, and profession or calling of
the tenant on the roll, or owner in case of freeholds.
6. Date of admittance or enrolment of tenant or owner.
7. Has notice of compulsory enfranchisement been given
imder the Copyhold Acts ?
8. Is the property copyhold of inheritance, or for lives, or
freehold, or customary freehold of the manor ?
9. Age of the tenant or owner.
10. If for lives, the names and ages of the lives.
1 1. Has the tenant a right of renewal ?
12. Is the land subject to fines certain or reliefs or fines
arbitrary ; and if arbitrary, whether by custom there is any
and what difference in the amount of fine on death and on
alienation ?
1 3. The amount of the last fine or relief, and whether paid
in consequence of death or alienation.
14. The annual amotmt of quit or free rents.
15. Is the property subject to heriots, and, if so, state the
nature and number of the heriots, the circumstances tmder
which they are payable, and whether seizable as well with-
out as wil^bin the manor, and the nature and value of the last
three heriots taken ?
16. Does the lord claim the timber ? and if so, can he enter
and cut, and carry away, without the consent of the tenant ?
17. Has the tenant power to demise his lands? and if so,
for what period ?
18. Has the lord granted licences to demise in the manor?
and if so, on what terms ?
480 APPENDIX III.
19. Does the lord claim the mineB, minerals, and other
rights reserved by the Oopyhold Act, 1852, sect. 48 ? and if
so, is it proposed to extingiiish these rights, and for what
consideration ?
20. The quantity of land proposed to be enfranchised.
21. The estimated annual value, separately, of the land and
of the house property, and also the value of each, after
deducting quit rents and for repairs. What is the estimated
value of the timber ?
22. Are there any circumstances, such as aptitude for build«
ing, which will give the property greatiy increased value as
freehold ? and if so, what is the estunated fee simple value of
the property ?
23. The amount of compensation for the enfranchisement,
and the particulars of the calculations by which it has been
arrived at.
Dated this — — day of , 18 — .
, steward of the manor,
-, (address.)
SOHBDULB OF THE LaNDS TO BE EnFEANOHISED (a).
[Form of agreement to be signed by lord or steward (&) and
tenant or owner, when the compensation is settied by agree-
ment.]
We do hereby agree that the compensation for the
enfranchisement of the lands above mentioned (c) the
rights reserved by the Oopyhold Act, 1852, section 48, shall
be {d).
Dated this day of , 18 — .
, lord, or steward.
, tenant, or owner.
(a) The oonrt roll deeoription hv which the tenant was admitted or
•nrolled is to be given in the schedule; and in addition the modem
description of the parcels, if such a description be agreed upon and is
desired to be inserted in the award or deed of enfranchisement.
(b) Stewud may sign for lord if reserved rights be not included ; but
if they are included, he cannot sign without special authority.
(c) Including, or, not including. Cross out reference to reserved rights
if they do not belong to the lord.
(d) A gross sum of £ or annual rent charge of £ ^~>.
CX)FTHOLD BNFRANCHISBMBKT. 481
OOFSTHOLD ENFRANCHISEMENT.
Conient of Lord to include Beserved Bi
Manor of , in the county of .
enfrandiiBement.
I , of , the lord of the above manor, do hereby
consent that the enfranchisement tmder the Copyhold Acts of
the lands comprised in the notice of desire for enfranchise-
ment given by , and dated on or about the day
of , 18 — , shall extend to and include all mines and
minerals, and also all other rights and easements reserved by
the Copyhold Act, 1852, sect. 48.
Dated this day of , 18—.
(Signed)
Note. — ^The steward cannot sign this consent for the lord
without specicd authority.
ENFEANCHISEMENT UNDER THE COPYHOLD ACTS.
Joint Appointment of one Valuer by Lord and Tenant or
Owner.
Manor of , in the county of .
enfranchisement.
We, , of , in the county of , and
of , in the county of , do, in pursuance of the
provisions of the Copyhold Acts, hereby appoint » of
, in the county of , to be the valuer, for the
purpose of determining the compensation for the enfranchise-
ment of the lands comprised in the notice of desire for enfran-
chisement given by the said , and dated on or about
the day of , 18 — .
Dated this day of , 18 — .
, lord of the above manor.
, tenant or owner.
Note. — A copy of the appointment should be sent to the
Board of Agriculture (Copyhold Department).
£. II
482 APPENDIX III. .
ENFEANCHISEMENT UNDER THE COPYHOLD ACTS.
Appointment of Valuer by Lord or Tenant or Owner.
■
Manor of , in the county of — .
^-^— enfranchifiement.
I , of , in the county of , do, in pur-
suance of the provisions of the Copyhold Acts, hereby appoint
, of , my valuer for the purpose of determining
the compensation for the enfranchisement of the lands com-
prised in the notice of desire for enfranchisement g^ven by
, and dated on or about the day of , 18-^.
Dated this day of 18 — .
(signature, stating whether lord, tenant, or owner).
Note. — A copy of this appointment should be sent to the
Board of Agriculture (Copyhold Department).
ENFEANCHISEMENT UNDER THE COPYHOLD ACTS.
Hotice of Appointment of Valuer from Lord or Tenant or
Owner, and calling on the other to appoint his Valuer.
Manor of , in the county of .
enfranchisement.
-, of , in the county of , hereby give
you notice that I have, in pursuance of the proviaions of the
Copyhold Acts, appointed , of , my valuer for
the purpose of determining the compensation for the enfran-
chisement of the lands comprised in the notice of desire for
enfranchisement given by , and dated on or about the
day of , 18 — ; and I hereby call on you to
appoint your valuer within twenty-eiffht days from the giving
of this notice, being the time limited by the said Acts.
Dated this day of , 18 — .
(signature, stating whether lord, tenant, or owner).
To , of , tenant or owner,
or lord or steward of the manor.
Note. — ^A copy of this notice should be sent to the Board of
Agriculture (Copyhold Department).
COPYHOLD BNFRANCHISBMENT. 483
COPYHOLD ENFRANCHISEMENT.
Appointment of Umpire by Valuers.
Manor oi , in the comity of .
enfranddsement.
We, the undersigned, being the valuers duly appointed in
the matter of this enfranchisement, hereby appoint ,
of , our umpire.
Dated this day of , 18 — .
(Signed)
Note. — ^A copy of this appointment should be sent to the
Board of Agriculture (Copyhold Department) ; or, if the
valuers are unable to agree upon an umpire within 14
days of their appointment, application should at once be
made to the Board to appoint an umpire for them.
COPYHOLD ENFEANCHISEMENT.
Extension of Time for Appointment of Valuers or Umpire,
and for making decision.
Manor of , in the county of .
enfranchisement.
Whereas application has been made to the Board of Agri-
culture to extend the time allowed by the Copyhold Acts to
the (a)
Now therefore the Board of Agriculture having duly con-
sidered the grounds of the said application, do, by virtue of
the powers vested in them by the Board of Agriculture Act,
1889, and the Copyhold Acts, hereby extend the time within
which
to the day of , 18 — .
In witness whereof the Board of Agriculture have here-
unto set tlieir official seal, this day of , 18 — .
(a) Inflert paipose of appUoation.
Il2
484 APFEliPIX III.
OOPTHOLD ENFEANOmSEMENT.
Appointment of Valuer or ITmpire by the Board of
Agricnltare.
Manor of y in the county of .
enfranchisemait.
Whereas in the matter of the above enfranchifiement under
the Copyhold Acts (o) failed to appoint within
the time allowed by the said Acts.
Now therefore the Board of Agriculture in pursuance of
the powers vested in them by the Board of Agriculture Act,
1889, and the Copyhold Acts, do hereby appoiot (&)
to be the (c) for the purpose of determining the com-
pensation for the enfranchisement of the lands comprised in
the notice of desire for enfranchisement given by , and
dated on or about the day of , 18 — .
In witness whereof the Board of Agriculture have here-
unto set their official seal this day of , 18 — . .
(fl)IU
failed to
a) Beoite that tenant or lord failed to appoint a yalaer, or that yaloem
appoint an umpire.
b) Insert name and address of person appointed.
e) Insert ** yalaer " or ** umpire," as the case may be.
COPYHOLD ENFRANCHISEMENT.
Declaration as to Lord's Title.
Manor of , in the county of .
I , of , in the county of , the (o)
of the said manor, do solemnly declare as follows: that {b)
And that the said is now and has for years
past been the acting lord of the said manor ; and that the
name and style of the court baron and customary court of the
said manor are ^' the general court baron and customary
court of the manor of , in the county of ," and
that the last general court baron and customary court was
held in and for the said manor by , as steward, in the
COPYHOLD ENFRANCHISEMENT. 485
name of the said — , as lord of the said manor, on the
day of , 18 — .
And that the said manor is subject to (c)
And I make this solemn declaration conscientiously believing
the same to be true, and by virtue of the provisions of the
Statutory Declarations Act, 1835.
(Signed)
The said declared to the truth of the above
declaration at , in the said county of ,
the day of , 18—.
Before me,
(Signed)
Note. — This declaration must be impressed with a2<. 6d, stamp.
(a) Lord or steward.
(b) Here describe the nature and extent of the estate and interest of
the lord in the manor, and the date and short particulars of the deed,
will, or other instrument under which he claims or derives title. If the
lord is not seised in fee, give the names, addresses, and descriptions, in
full, of the acting trustees of the will or settlement imder which the
manor is held ; or state that there are no such trustees.
(e) State here the nature and extent of the incumbrances (if any) which
affect the manor, or that there are no incumbrances.
COPYHOLD ENFEANOHISEMENT.
Decision of Valuer or Valuers.
Manor of , in the county of .
enfranchisement.
In the matter of the above enfranchisement under the
Copyhold Acts, — ; (a), of , in the county of ,
and , of , in the county of , having been
duly appointed to determine the compensation to be paid for
the enfranchisement of the lands in the schedule hereunder
written and comprised in the notice of desire for enfranchise-
ment given by , dated on or about the ' ■ day of
, 18 — , do hereby in pursuance of the Copyhold Acts
determine and decide as follows ; that is to say —
{b) determine and decide that the compensation to
be paid for the enfranchisement of the said lands under the
said Acts, is the sum of (c), being the value of all the
manorial rights and incidents of tenure affecting the said
lands, (d) the rights reserved by the Copyhold Act,
1862, section 48, (e) excepting the value of the right of
486 APPENDIX III.
escheat for want of heirs reserved by the Oopyhold Act, 1887,
section 4.
Witness — (/) this day of , one thou-
sand eight hundred and .
(signature of yaluer or vaLuers).
The Sohedule hebeiitbefobb bsfebbsd to.
Note. — The court-roll description by which the tenant was
admitted or enrolled to be given in the schedule, and, in
addition, the modern description of the parcels, if such a
description be agreed upon.
The schedule as well as the decision must be signed by the
valuer or valuers.
The declaration of each valuer must be annexed, and also
the consent of the lord when the rights reserved by the Act of
1852, section 48, are included.
The decision should be forwarded to the Board of Agricul-
ture (Copyhold Department), and a copy should be sent to the
steward, and to the tenant or his solicitor, and the Board
should be informed that this has been done when the decision
is sent in.
{a) I, or We. Insert also name and address of valuer or yalaers.
lb) I, or We.
{c) Tlie compensation determined.to be a gross sum of money.
(d) Excepting, or including.
le) And, or but.
(/] My hand, or our hands.
ENFEANCHISEMENT UNDEE THE COPYHOLD ACTS.
Decision of TTinpire.
Manor of , in the county of .
enfranchisement.
Whereas in the matter of the above enfranchisement under
the Copyhold Acts the valuers duly appointed have failed
to make their decision :
And whereas I , of , in the county of
have been duly appointed the umpire in the said matter, which
has been duly r^erred to me :
COPYHOLD ENFBANGHISBMENT. 487
Now therefore, in pursuance of the Oopyhold Acts, I do
hereby determine and decide that the compensation to be
paid for the enfranchisement tmder the said Acts of the lands
in the schedule hereunder written and comprised in the notice
of desire for enfranchisement given by — ; , dated on or
about the day of , 18 — , is the sum of (a)
being the value of all the manorial rights and incidents of
tenure affecting the said lands, ' (b) the rights reserved
by the Copyhold Act, 1852, section 48, (c) excepting
the value of the right of escheat for want of heirs reserved by
the Oopyhold Act, 1887, section 4.
Witness my hand this day of , one thousand
eight htmdred and .
(signature).
The Sghedule hebeinbefoke eeferbed to.
Note. — The court-roll description by which the tenant was
admitted or enrolled to be given in the schedule, and, in
addition, the modem description of the parcels, if such a
description be agreed upon.
The schedule as well as the decision must be signed by the
imipire.
The declaration of the umpire must be annexed, and also
the consent of the lord when the rights reserved by the Act of
1852, section 48, are included.
The decision should be forwarded to the Board of Agri-
culture (Copyhold Department), and a copy should be sent to
the steward, and to the tenant or his solicitor, and the Board
should be informed that this has been done when the deci-
sion is sent in.
(a) The oompensatioii detennmed to be a grosB som of money.
lb) Excepting, or including.
(e) And, or out.
488 APPENDIX ni»
COPYHOLD ENFRANOHISEMENT.
Determination of the Board of Agricnltnre.
Manor of , in the county of .
enfranchiflement.
Whereas in the matter of the above enfranchiBement under
the Copyhold Acts (a)
Now therefore the Board of Afl;Ticidture, &c., do by virtue
of the powers vested in them oy the Board of Agricid-
ture Act, 1889, and the Copyhold Acts, hereby determine and
decide that the compensation to be paid for the enfranchise-
ment of the lands comprised in the ootice of desire for enfran-
chisement given by , and dated on or about the
day of , one thousand eight hundred and , and
wnich said lands are described in the schedule hereto, is the
sum of , being the value of all the manorial and other
rights and incidents affecting the said lands, (b) the
rights reserved by the Copyhold Act, 1852, section 48,
(c) excepting the value of the right of escheat for want
of heirs reserved by the Copyhold Act, 1887, section 4.
In witness whereof the Board of Agriculture have here-
unto set their official seal, this day of , one
thousand eight hundred and .
Thb Schedulb hebedtbbfobb bsfebbxd to.
(a) State reaaon showing power of Board to decide.
h) Exoepting, or indlaamg.
[c) And, or bat.
COPYHOLD ENFRANCHISEMENT.
Appointment of Trustees.
Manor of , in the county of ■
Whereas it is proposed to effect enfranchisements under
the Copyhold Acts of lands held of the above manor, of
•^lucli^ is lord. And whereas (a)
And whereas it is expedient that fit and proper persons
COPYHOLD ENFRANCHISBMENT. 489
should be nominated for the purpose of receiving any moneys
to be paid for the enfranchisement of lands held of the aboye
manor.
And whereas, haying made due inquiry, it appears to the
Board of Agriculture fliat are fit and proper persons
to be so nominated.
Now the Board of Agriculture, in pursuance of the powers
yested in them by the Board of Agriculture Act, 1889, and the
Copyhold Acts, do hereby nominate and appoint the said
to be trustees for the purpose of receiving any moneys to
be paid for the enfranchisement under the Copyhold Acts of
lands held of the above manor in trust to be applied by them
as directed by the Copyhold Acts.
In witness whereof the Board of Agriculture have hereunto
set their official seal this day of , one thousand
eight hundred and .
(a) State reasonB for appointment.
COPYHOLD ENFEANCmSEMENT.
Seoeipt for Compensation Money.
Manor of , in the county of .
enfranchisement.
Beceived on the day of , 18 — , of and from
•, the sum of , being the compensation money
for the enfranchisement under the Copyhold Acts of certain
lands comprised in the notice of desire for enfranchisement
given by , and dated on or about the day of
— — , lo .
(Signed) — —
Witness .
Note.— The receipt must be dated, and the usual receipt
stamp must be affixed.
490 APPENDIX 111.
COPYHOLD ENFRANCHISEMENT.
Deed of Enfranchiiement of CopyholdB.
This indenture, made the — : day of , 18 — ,
between A. B., lord of the manor of of the firet part,
the Board of Agriculture of the second part, and C. D., of
: — , in the county of , a tenant of the said manor,
of the third part : Whereas on or about the day of
, the said [_tenant'] was admitted tenant to the copyhold
hereditaments parcel of the said manor described in the sche-
dule hereto, upon an absolute surrender passed to his use by
[_or by virtue of a bargain and sale from the executors
of , or by virtue of the last will and testament of ,
or as customary heir of , as the case may he"] : And
whereas the said [_lord'] has, under the authority of the
Copyhold Acts, agreed with the said [^tenant'] for the en-
franchisement of tne said hereditaments, at the sum of '
Now this indenture witnesseth that in consideration of the
said sum of sterling by the said \_tenant^ to the said
now paid, the receipt of which the said hereby
acknowledges, he the said in exercise of any power
given him by the Copyhold Acts, or any other power whatso-
ever, and with the consent of the Board of Agriculture in
pursuance of the powers vested in them by the Board of
Agriculture Act, 1889, and the Copyhold Acts, hereby enfran-
chises and releases unto the said [^tenant'], his heirs and
assigns, all and singular the hereditaments to which the said
[_tenani^ was so admitted tenant as herein-before recited, and
which are described in the schedule hereto, together with
their appurtenances, (o) the rights reserved by the
Copyhold Act, 1852, section 48, To hold the said heredita-
ments hereby enfranchised unto and to the use of the said
[tenant'], his heirs and assigns, as freehold henceforth and
for ever discharged by these presents from all fines, heriots,
quit-rents, and all other incidents whatsoever of copyhold or
customary tenure, but so as not to affect such right of escheat
for want of heirs as is reserved by the Copyhold Act, 1887,
section 4. In witness whereof the said parties of the first and
third parts have set their hands and seals, and the Board of
Agriculture have hereunto set their official seal.
The Schedxtlb.
(a) Inoliiding or excepting.
COPYHOLD ENFRANCHISEMENT. 491
ENFRANCHISEMENT UNDEE THE COPYHOLD ACTS.
Deed of Enfranohifement of FreelioldB, ftc., liable to lieriots,
and other manorial incidents.
Thifl indenture, made the day of , 18 — ,
between A. B., lord of the manor of of the first .part,
the Board of Agriculture of the second part, and C. I)., of
, in the county of , of the third part : Whereas
the hereditaments described in the schedule hereto are free-
hold or customary freehold of the said manor liable to
(a) and other manorial incidents, and the said
is the tenant or owner of the said hereditaments : And
whereas the said [lord^ has under the authority of the
Copyhold Acts agreed with the said [^tenant or ownerl that
tile said (a) and other manorial incidents should be
extinguished and the said hereditaments released and enfran-
chised therefrom at the sum of : Now this indenture
witnesseth that in consideration of the said sum of
sterling by the said [^tenant or oioner'] to the said now
paid, the receipt of which the said hereby acknow-
ledges, he the said in exercise of any power given
liiTTi by the Copyhold Acts, or any other power whatsoever,
and with the consent of the Board of Agriculture in pursuance
of the powers vested in them by the Board of Agriculture
Act, 1889, and the Copyhold Acts, hereby extinguishes all the
said (a) and aU other manorial incidents, and releases
and enfranchises unto the said [tenant or oern^r], his heirs and
assigns, all the said hereditaments described in the schedule
hereto, together with their appurtenances, To hold the said
hereditaments unto and to the use of the said [tenant or otrn^r],
his heirs and assigns, as freehold henceforth and for ever
discharged by these presents from the said (a) and
all other manorial incidents whatsoever, but so as not to afPect
such ri^ht of escheat for want of heirs as is reserved by the
Copyhold Act, 1887, section 4. In witness whereof the said
parties of the first and third parts have set their hands and
seals, and the said Board of Agriculture have hereunto set
their official seal.
Thb Schedttle.
(a) Inaert heriots, quit-rents, or free rents, as the case may be.
492 APPENDIX III.
ENFEANCHISEMENT UNDER THE COPYHOLD ACTS.
Notioe to Person entitled to the first vested estate of in-
heritance in the manor, to be given if the enfranchise-
ment be under the Copyhold Act, 1841 (a).
Manor of , in the county of '
enfranchisement.
■, of , in the county of , lord of the
above manor, do hereby, in pursuance of the provisions of
the Copyhold Acts, give you notice that it is intended to
enfranchise All that to which the said was
admitted tenant on or about the day of , 18 — ,
and that the compensation for such enfranchisement being
the sum of is to be paid to , pursuant to the
provisions of the said Acts.
And I request that you will state in writing at the foot
hereof your {b) such enfranchisement, and return the
same for delivery to the Board of Agriculture (Copyhold
Department) under the said Acts.
Dated this day of .
(Signed)
To , the person entitled to the
first vested estate of inheritance in
the above manor.
I the said > do hereby (b) the enfranchise-
ment above proposed.
(Signed)
la) If Buoh person be a minor, notioe must be given to Ms guardian.
lb) Assent to, or dissent from.
( 493 )
APPENDIX IV.
TABLE 07 FEES anthoriBed to be taken by the Board of
Agricnltnre in respect of tranBactions under the Copy-
hold and Inclosnre Acts.
„ 20 „
» 25 ,,
EnTRAITOHISEMSNTS Aim other TBAKaACnONS Uin)EB THE
Copyhold Acts.
On enfranchisements — £ s, d.
Where the enfranchisement consideration-money
does not exceed the sum of £1 0 5 0
Exceeds £1 and does not exceed 5 . • , . . 0 10 0
„ 5 „ „ 10 10 0
„ 10 „ „ 15 1 10 0
20 2 0 0
25 2 10 0
50 3 0 0
For every additional £25 or part of £25 up to
£200, an additional sum of 0 10 0
For every additional sum of £50 or part of £50
above £200 up to £600, an additional sum of 0 10 0
For every additional sum of £100 or part of
£100 above £600, an additional sum of 0 10 0
Where the enfranchisement consideration is a
rent-charffe, the fee will be computed on the
value of the rent-charge, calculated at 25 years'
purchase.
Where the enfranchisement consideration is land,
the fee will be computed on the fee-simple
value of the land.
Where the enfranchisement terms are fixed by
the Board on agreed data at the request of the
parties, a fee of 1 0 0
On every certificate of charge on property enfran-
chised, a fee of 0 10 0
On every certificate fixing the sum of money in
consideration of which a rent-charge may be
redeemed, a fee of • 0 10 0
494 APPENDIX IV.
On ejdrSLTiQhiBementa^conttnued, £ s, d.
On every consent by the Board to the application
of enfranchisement money, or the stock in
which it may have been inyested, to the pur-
chase of land —
For every £50 and part of £50 expended ..026
On every decision of the Board or an Assistant-
Commissioner a fee of 2 0 0
On every award defining the boundaries of lands
for the purpose of enfranchisement, a fee of . . 5 0 0
On the amendment of any award or deed of en-
franchisement, or other instrument confirmed
under the Copyhold Acts, a fee of ^ 2 0 0
Fees undeb the Iz^closttbe Acts.
Inchsure of Commonable Land,
On the confirmation of an inclosure award 10 0 0
And in addition for every acre enclosed not
exceeding 100, a further sum of 0 2 0
For evei^y additional acre exceeding 100 up
to 500 ; 0 1 6
For every additional acre exceeding 100 up
to 2,000 0 1 0
For every additional acre exceeding 2,000
up to 5,000 (which is to be the maximum
upon which a fee is to be charged) 0 0 6
Regulation of Gated or Stinted Pastures,
On the confirmation of an award 10 0 0
And in addition one-half of the above-men-
tioned acreage fees.
Settlement of Boundaries.
On an award setting out the boundaries of parishes,
townships, manors, &c 5 0 0
On an award declaring the boundaries of free-
hold, copyhold, or leasehold lands 5 0 0
Exchanges, Partitions, and Division of Intermixed Lands,
(See p. 452 ante.)
On an award of apportionment or other applica-
tion of money received under the Lands Clauses
Consolidation Act —
For every £100 or part of £100 1 0 0
TABLE OF FEES UNDER OOPYHOLD AND INCXOSURE ACTS. 495
£ S. d.
On an order of apportionment of fee-farm rents,
or other rents or certain payments —
Forevery £100orpartof £100 10 0
On the amendment or completion of any award
Tinder local Acts 5 0 0
On the amendment of any award or order con-
firmed under the Indosnre Acts 2 00
Metbofolitan Commons Acts.
On eyery application for a scheme to be framed 10 0 0
On every such scheme reported to Parliament ..500
The XJnivebsities and Coujsqe Estates Acts.
On the enfranchisement of copyholds, the same
scale of fees as under the Copyhold Acts.
On the sale or purchase of Ifmds ; exchange of
lands ; purchase of lessee's interest in conside-
ration of a gross sum of money or by an annual
charge; raising of moneys by mortgage for
certain purposes under sect. 27 of 21 & 22 Vict,
c. 44 ; raising of moneys by mortgage by way
of compensation for loss of fines through non-
renewal of leases and advances of moneys for
any of the above purposes under 43 & 44 Vict,
c. 46 —
For every £50 or fractional part of £50 .... 0 2 6
( 496 )
APPENDIX V.
PEEOEDENTS OF COURT ROLLS, OOPTHOTJ)
ASSURANCES, &o.
(Style of a Couri-Leet and Court-Baron,)
The manor of X. in | The court-leet, with view of frank-pledge
the county of Y. | and the court-baron and customary
court of A. B., Esq., lord of the said manor, held at
within the said manor on the day of
Before R. M., steward.
!L M
AT n*
&c
RS.! Freesuitors . ["^'^
who being sworn and charged upon their oaths touching the
articles of the court-leet and the court-baron present and
say as follows : —
{Style of a Court- Baron and Customary Court.)
The manor of X. in ) The court-baron and customary court
* the county of Y. | of A. B., Esq., lord of the said manor,
held at within the said manor on the day
of .
Before R. M., steward.
( E. F. L. M. )
Homage I G. H. N. 0. > sworn.
( &c. &c. )
{Presentment in a Court- Leet as to Residents absent from
the Court,)
No. 1. The jury present that R. S., T. W., and M. R. reside
within the precinct of this leet, and owe suit at this court,
but have respectiyely made default, and are seyerally amerced
by the jury in the sum of 6c?.
This amercement is afPeered at the
sum of Sd. for each defaulter by us,
E. F. ) AfEeerors,
L. M. ) sworn.
PRECEDENTS OF COURT ROLLS, COPYHOLD ASSURANCES, ETC. 49'
{Presentment in a -Court-Baron and Customary Court as to
tenants who have neglected to perform' their suit.)
At this court the homage upon their oaths present that No. 2.
R. S., T. W., and M. E., being respectiyely* freehold tenants
of this manor, have neglected to appear and to perform the
suit and service which they owe at this court, and they are
respectiyely amerced.
This amercement is affeered, &g. {_As in Form No, 1].'
{Presentment of the death of a copyhold tenant.)
At this court the homage present the death of A. B., late No. 3.
one of the customary tenants of this manor : and thereupon
proclamation is made for any person or persons claiming title
to the copyhold hereditaments parcel of this manor, whereof
the said A. B. died seised, to come into court and be ad-
mitted.
{Presentment of a copyholder^ s will under which admittance
is claimed.)
To Form No. 3 add :— No. 4.
And the homage also present that the said A. B. in
and by his last will and testament, dated the day
of (the probate whereof is now produced in court),
fave and devised All, &c. [^statiny the terms of the devise jy
Fnto L. M., his heirs and assigns, &c.
{Admittance on descent, in court.)
At this court comes E. B., the eldest son and heir ac- No. 6.
cording of the custom of this manor of A. B., late of :—
deceased, and prays to be admitted to ail and singular the
copyhold hereditaments, parcel of this manor, whereof the
said A. B. lately died seised, that is to say, All that, &c.
[_parcels'\ to which said premises the said A. B. was admitted
at a court held for this manor {or^ out of court), on the
day of ; And the lord by the steward grants seisin
thereof by the rod to the said E. B., To have and to hold the
said hereditaments and premises unto the said E. B. and his
heirs by copy of court-roll at the will of the lord, according
to the custom of the manor by fealty, suit of court, the ancient
rent or rents, a heriot when it shall happen (a), and the duties
and services therefor due and of right accustomed : And the
said E. B. pays to the lord such a fine as was agreed \_or, a
fine certain of £ ] for the said admittance ; and his
fealty is respited.
(a) If the tenements are not heriotable, the ref erenoe to a heriot shonld
be omitted.
E. K K
498 APPENDIX V.
{Presentment of the death of a copyholder and default recorded
upon proclamation /or his heir,)
No. 6. To Form No, S add :—
Bat no one comes ; therefore let a second prodamation be
made at the next court.
{First proclamation in a statutory court held toithotU the
presence of homagers of the death of a customary tenant^
and default recorded.)
No. 7. The Manor of X. in the county of Y.
Whereas A. B., one of the customary tenants of this
manor, died on or about the day of , where-
fore at this court proclamation is made for any person or
persons claiming title to the copyhold hereditaments, parcel of
this manor, whereof the said A. B. died seised, to take admit-
tance thereto, otherwise the same will be seized into the hands
of the lord for want of a tenant [but no one comes ; therefore
the first default is recorded (a)].
(a) As no homagers, as sach, are present at the oonrt, notioe of the pro-
olajnation must be serred within one month on the person whose right,
tiUe, or interest may be affected (4 & 6 Vict. c. 36, s. 86). If the cas«
tomary heir, or other person claiming title, appears before the court is
closed, the words in square brackets will be omitted.
{Second proclamation of the death of a customary tenant ^ and
second default recorded,)
No. 8. At this court the second proclamation is made for any
person or persons claiming title to the copyhold heredita-
ments, parcel of this manor, whereof A. B., late of ,
deceased, whose death was recorded at the court held on the
day of , died seised, to take admittance thereto,
otherwise the same will be> seized into the hands of the lord
for want of a tenant [but no one comes ; therefore the second
default is recorded (a)].
(a) This form of proclamation is applicable as well to the case of a
court held in the presence of homagers as to the case of a statutory court
held without homagers ; but in the latter case notice of the proclamation
must be giyen, as mentioned imder Form No. 7.
( Third proclamation of the death of a customary tenant : third
default recorded : precept to seize quousque issued,)
No. 9. At this court the third proclamation is made for any
person or persons claiming title to the copyhold heredita-
ments, parcel of this manor, whereof A. B., late of ,
deceased, whose death was recorded at the courts held for the
PRECEBEKTS OF COURT ROLLS, COPYHOLD ASSURANCES, ETC. 499
manor on the day of , and the day of
respectiyely, died seised, to take admittance thereto,
otherwise tne same will be seized into the hands of the lord
for want of a tenant ; And because no 'person claims to be
entitled to admittance to the said hereditaments, the third
default is recorded, and a precept is awarded and issued under
the hand and seal of the said steward to S. T., the bailiff of
this manor, to seize the said hereditaments into the hands of
the lord for his use and benefit imtil some person or persons
shall establish his or their right to be admitted thereto (a).
(a) See note to Form No. 7.
{Surrender in court by a copyholder,)
At this court comes C. D., one of the customary tenants No. 10.
of this manor, and in consideration of the sum of £
paid to him by E. F. in court surrenders into the hands
of the lord, by the acceptance of the steward, according to
the custom of the manor, All that, &c. \^parcel8\\jo which
said premises the said C. D. was admitted, &c., To the use
of the said E. F., his heirs and assigns, according to the
custom of the manor, and by and under the rents, fines,
heriots (a), suits, and services therefor due and of right ac-
customed.
(a) If the tenements are not heriotable, the word <* heriots " should be
omitted.
{Conditional surrender in court by a copyholder.)
To Form No. 10 add :— No. 11.
Subject to this condition that upon payment to the said
E. F., his executors, administrators, and assigns, of the sum
of £ , together with interest for the same in the mean-
time at the rate of £ per cent, per annum, on the
day of next, without any deduction, this surrender is
to be void.
{Admittance of a purchaser at the court at which the surrender
is made to him.)
Now at this court comes the said E. F., and prays to be No. 12.
admitted to all and singular the copyhold hereditaments and
premises so surrendered to his use as aforesaid: To whom
the lord by the steward grants seisin thereof by the rod, To
have and to hold the hereditaments and premises above
described, Unto the said E. F. and his heirs, by copy of court-
roll at the will of the lord, according to the custom of the
manor by fealty, suit of court, &c. \Continue as in Form
No. 5 to the end thereof. '\
K k2
600 APPENDIX V.
(Acknowledgment m court by a mortgagee of the payment and
satisfaction of monies secured by a conditional surrender,)
No 13. At this court comes E. F., and acknowledges to have re-
ceived of C. D.y one of the customary tenants of this manor,
the sum of £ , being in full satisfaction of all principal
and interest monies due and owing from the said 0. D. on a
conditional surrender of certain copyhold hereditaments, parcel
of this manor, made by the said 0. D. to the said E. F., on.
the day of , for securing the principal sum of
£ , with interest for the same as in the said surrender
is expressed : And the said E. F. requests the steward to enter
satisfaction of the said principal and interest monies on
the court-rolls of this manor: Whereupon satisfaction is
entered by the steward accordingly.
{Admittance in court of a tenant in tail in possession : sur-
render by way of disentailing assuranccj and admittance
thereon)
No. 14. At this court the homage present [will of A. B. with
limitation to C, D, in taily and death of A, B."].
Now at this court comes the said 0. D., and prays to be
admitted to the copyhold hereditaments so devised to him as
aforesaid: that is to say. All that, &c. [parcels\ to which
same hereditaments and premises the said A. B. was ad-
mitted, &c. ; Whereupon the lord by the steward grants seisin
thereof by the rod to the said C. D., To have and to hold the
said hereditaments and premises unto the said 0. D., and the
heirs of his body according to the form and efPect of the devise
so made to him as aforesaid by copy of court-roll at the will
of the lord, according to the custom of this manor by fealty,
suit of court, &c. [Continue as in Form No, 6].
And afterwards at this court comes the said 0. D., and for
the purpose of barring and extinguishing his estate-tail in
the same hereditaments and premises, and all remainders and*
reversions expectant thereupon, by virtue and in pursuance of
the provisions in this behalf contained in the Fines and Be-
coveries Act, 1833, in court surrenders into the hands of the
lord by the acceptance of the steward, all and singular the
hereditaments and premises to which he was admitted as
aforesaid. To the use of him the said C. D. his heirs and
assigns, according to the custom of the manor, discharged from
all estates-tail of the said 0. D. and all remainders and rever-
sions expectant thereupon ; To whom the lord by the steward
grants seisin of the said premises by the rod. To have and to
hold the said hereditaments and premises unto the said C. D.
and his heirs, by copy of court -roll at the will of the lord,
according to the custom of this manor by fealty, suit of
court, &c. [Continue as in Form No, 5].
PRECEDENTS OF COURT? ROLLS, COPYHOLD ASSURANCES, ETC.
{Surrender in court hy a married woman {a) entitled to an
equitable estate-taily hy way of disentailing assurance.)
At this coTirt the homage present that at a coxirt held ^o- 1^-
for this manor on the day of the copyhold
hereditaments hereinafter described were surrendered by
E. B.y since deceased, to the use of K. L. and M. N., their
heirs atid assigns, according to the custom of this manor, upon
the trusts expressed and declared in an indenture bearing
date, &c., and expressed to be made between the said E. B.
of the first part, A. F. of the second part, and the said K. L.
and M. N. of the third part, and inrolled at the said last-
mentioned court (being a settlement made in consideration of
the marriage then intended, and afterwards solemnised be-
tween the said E. B. and the said A. F.), and that at the same
court the said K. L. and M. N. were admitted tenants of the
said hereditaments upon the trusts of the said settlement.
And the homage also present that G., the only child of the
said E. B. and A., his wife, by virtue of the trusts of the said
settlement became, on the death of the survivor of the said
E. B. and A., his wife, equitably entitled in possession to
the said hereditaments for an estate in tail male [or in tail
general] as her separate property, and that the said O. lately
intermarried with, and is now the wife of, E. T.
Now at this court comes the said G. T., and for the purpose
of barring the equitable estate-tail to which she is entitled as
aforesaid of and in the hereditaments hereinafter described,
and all remainders and reversions expectant thereupon, by
virtue and in pursuance of the Fines and Eecoveries Act,
1833, in court surrenders into the hands of the lord, by the
acceptance of the steward, All that, &c. [parcels'], To the
use of her the said G. T. as her separate property, and her
heirs, according to the custom of this manor.
(a) This form assumes that the surreuderor was married sabseqnently
to the Ist of January, 1883, or that her title accrued subsequently to that
'date.
( Voluntary grant in court to take effect in reversion, after the
deathy Sfc. of the lives in possession.)
At this court E. B., son of A. B., by the assignment of the No. 16.
said A. B. takes of the lord the reversion of All that, &c.
[parcels'], now in the tenure of the said A. B. with the
remainder thereof to M. B. and P. B. for the term of their
lives successively : To have and to hold the said reversion
and all and singular the premises to the said E. B. and F. B.
and G. B. for the term of their lives, and the life of the longest
liver of them successively, and according to the custom of
the manor, as soon and immediately as the said reversion
601
602 APPENDIX V.
shall fall in after the death, surrender, or forfeiture of the said
A. B., M. B., and P. B., by the rents, customs, suits, and
services therefor due and of right accustomed : And for
having such estate and interest in the said reversion of the
premises the said E. B. gives to the lord for a fine as was
agreed : And the said E. B., F. B., and Q. B., are admitted
tenants in reversion, but their fealty is respited until here-
after.
( Voluntary grant in court to A. B,, and to C. D. and E. F,
his nominees^ /or their Uvea successively y where the previous
estate has fallen in : under special custofn{a),)
No. 17. At this court the lord, by his steward, for divers valu-
able considerations grants unto A. B. All that l^parceW]
(which said hereditaments were held by copy of court-roll,
according to the custom of this manor, and lately fell into the
hands of the lord upon the death of E. B., late a copyhold
tenant of this manor, being the last existing life in the said
copy of court-roll) To hold to him the said A. B. for the term
of his life, and for the lives of C. D. and B. F., or such other
lives as he shall nominate to be estated in the premises, and
the life of the longest liver of them successively : And to the
said A. B. the lord by the steward grants seisin of the said
hereditaments by the rod, To have and to hold the said here-
ditaments and premises Unto the said A. B. for and during
the term of his life and the lives of the said 0. D. and E. F.,
and such other lives as aforesaid, by copy of court-roll at the
will of the lord, according to the custom of the manor, by and
under the rents, duties, and services therefor due and of ri^ht
accustomed, and by the best goods or best beast for a henot,
when it shall happen, or £ at the will and election of
the lord and also by scouring the lord's rivers when and as
often as it shall be necessary that he should be required
thereto : And for the said grant the said A. B. gives to the
lord such a fine as was agreed : And his fealty is respited.
(a) For these special customs, see Right v. Bawden^ 3 East, 260.
{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.)
No. 18. At this court, upon presentment of the death of C. D.,
came A. B., a copyhold tenant of this manor, who held
to him for his life and the lives of the said 0. D. and of
E. F. the hereditaments hereinafter described, and in court
surrendered into the hands of the lord, by the acceptance of
the steward. All that, &c. {_ parcels'], To the intent that the
lord might re-grant the same to the said A. B. for the term
PRECEDENTS OF COURT ROLLS, COPYHOLD ASSURANCES, ETC. 503
of his life, and for the lives of the said E. F. and of O. H.,
And to the said A. B. present in court the lord by his steward
granted seisin of the said premises by the rod, To have and
to hold the said premises unto the said A. B. for the term of
his life, and for the lives of the said E. F. and O. H. succes-
sively, by copy of court-roll at the will of the lord, according
to the custom of the said manor, by and under the rents, duties,
and services therefor due and of right accustomed : And for
the said grant the said A. B. gave to the lord for a fine, as
appears on the margin hereof : And his fealty was respited.
{Surrender out of court hy a copyholder for lives for the
purpose of exchanging the lives.)
The Manor of X., in the county of Y. No. 19.
Be it remembered that on the day of
A. B. of , who was on the day of
out of court admitted to the copyhold hereditaments herein-
after described, to hold to him and his heirs for the lives of
C. D!, E. F., and G. H.. and the life of the longest liver of
them, came before B. M., steward of the said manor, and did
out of court surrender into the hands of the lord, by the accept-
ance of the steward. All that, &c. [^parcels according to the
court-roll description'], To the intent that the lord might re-
grant the same premises to the said A. B. and his heirs for
and during the lives of the said G. H., and of E. B., now aged
years or thereabouts, and of G. B., now aged
years or thereabouts, and the life of the longest liver of them,
according to the custom of the said manor.
A. B.
Taken and accepted the day
of , by me,
E. M., steward of the said manor.
(Re-grant on the foregoing surrender.)
The Manor of X., in the county of Y.
Whereas A. B. on the day of came before No. 20.
B. M., steward of the said manor, and did then out of
court surrender into the hands of the lord, by the accept-
ance of the said steward, the copyhold hereditaments herein-
after described, to which the said A. B. was on the
day of out of court admitted to hold to him and his
heirs, according to the custom of the manor, for the lives of
0. D., E. F., and G. H., and the life of the longest liver of
them, to the intent that the lord might re-grant the same
premises to the said A. B. and his heirs for and during the
604 APPENDIX V.
liYes of the said G. H. and of E. B., now aged years
or thereabouts, and of Q-. B., now aged years or there-
abouts, and the life of the longest liver of them, according to
the custom of the said manor : Now be it remembered that
on the day of the lord of the said manor, by
the said B. M., his steward, in consideration of the sum of
£ , paid to him by the said A. B., granted seisin by the
rod, according to the custom of this manor, unto the said A. B.
of All that, &c. [parcels according to the court-roll descrip'
tion]t To have and to hold the said hereditaments and pre-
mises Unto the said A. B. his heirs and assigns for and
during the lives of the said O. H., E. B., and Q-. B., and the
life of the longest liver of them, by copy of court-roll at the
will of the lord, according to the custom of the manor, and by
and under the rents and services therefor due and of right
accustomed : And the said A. B. paid to the lord for the said
grant for a fine as was agreed : And his fealty was respited.
E. M., steward.
{Surrender out of court hy a copyholder in fee to a purchaser,)
No. 21. The Manor of X., in the county of Y.
Be it remembered that on the \ — day of
A. B., one of the customary tenants of the said manor,
came before B. M., steward of the said manor, and in con-
sideration of the sum of £ , paid to Hitti by C. D. (the
receipt (a) whereof is hereby acknowledged), for the purchase of
the heremtaments hereinafter described, did out of court sur-
render into the hands of the lord, by the acceptance of the
said steward, according to the custom of the manor, All that,
&c. [parcels according to the court-roll description\ to which
same premises the said A. B. was admitted, &c.. To the use
of the said 0. D. his heirs and assigns, &c. [As in Form
No. 10.] A. B.
Taken and accepted, &o.
[As in Form No, 19.]
{a) ThiB receipt should be indorsed, aa seot. 54 of the Gonveyanoing,
&c. Act, 1881, applies to deeds only.
{Surrender out of court hy an equitable tenant in tail in pos-
session, with the consent of the protector of the settlement^
for the purpose of barring the entail,)
No. 22. The Manor of X., in the county of Y.
Whereas, &c. [Recite assurances and facts which show
that A, B, is equitable tenant in tail, and that C, D, is
protector of the settlement,^ Now be it remembered that
PBECEDENTS OF OOUBT BOLLS, OOFTHOLD AS8UBANCBS, ETC. 505
on the — ■—. — day of ' the said A. B. came before
B. M., steward of the said manor, and for the purpose of
barring and extinguishing all estates tail in equity or other-
wise of him the said A. B. in the hereditaments hereinafter
described, and all remainders and reversions expectant there-
on, he did, with the consent of the said 0. D., as protector
of the settlement of the said hereditaments, testified by his
signature hereunder written, out of court surrender into the
hands of the lord, by the acceptance of the said steward,
according to the custom of the said manor All that, &c.
t parcels according to the court-roll description], To the use of
im the said A. B. his heirs and assigns, according to the
custom of the said manor. A. B.
Taken and accepted, &c.
[As in Form No, 19.]
I 0. D., as protector of the settlement aboye mentioned, do
hereby consent to the foregoing surrender. In witness, &c.
C. D.
Signed by the said 0. D.
in the presence of L. T. of .
{Precept to seize quousque after proclamations for heirs of
deceased tenant,)
The Manor of X., in the county of Y. No. 23.
To S. T., bailiff of the said manor.
Whereas public proclamation has been made at three
consecutive (a) courts, held in and for the said manor on
the day of the day of , and the
day of respectively, for any person or persons
claiming title to the copyhold lands and hereditaments, parcel
of the said manor of which E. F. lately died seised [or, pos-
sessed], to take admittance thereto : And because no person
has appeared and claimed admittance to the said lands and
hereditaments. It is ordered that you, S. T., do seize, and you
are hereby authorized and required to seize into the hands
and for the use of the lord All and singular the said copyhold
lands and hereditaments, parcel of this manor, of which the
said E. F. so died seised [until some person or persons shall
appear and make g^d his or their claim to be admitted
thereto] (^). And you are hereby required to make your
return to this precept forthwith {or, at the next court to be
held for the said manor).
Given under my hand and seal this day of .
B. M., steward of the said manor.
(a) See Doe d. Bwer v. Truetnan, 1 B. & Ad. 736.
(b) If the custom of the manor warrants an absolute seizure, the words
in square brackets are to be omitted.
506 APPENDIX V.
{Precept to seize quoueque^ by virtue of special custom^ to
compel surrenderee to take admittance.)
No. 24. The Manor of X., in the county of Y.
To S. T., bailiff of the said manor.
Whereas public proclamation has been made at three
consecutive courts, held in and for the said manor on the
day of , the day of , and the
day of respectively, for G. H. to take admit*
tance by virtue of a certain surrender, made the day of
, by L. M. of All that, &c. [^parcels as specif ed in the
surrender"] : And because the said G. H. has not taken admit-
tance to the said hereditaments, It is ordered, &c. [adapting
Form No. 23 to suit the circumstances], Until the said G. H.
claims to be admitted thereto, &c. (As in Form No, 23.)
{Return of the bailiff to be indorsed on precept to seize quousque^
No. 25, I 8. T. bailifp of the manor of do hereby certify
that by virtue of the within-written precept I did on the
day of in the presence of M. N. and 0. P. [two
of the (a) tenants of the said manor] (A), seize the
lands and hereditaments within mentioned, into the hands and
for the use of the lord until, &c., as ordered by the same precept.
Witness my hand this day of .
S. T., bailiff of the said manor (c).
' (a) Freehold or copyhold, as the case may be.
(b) The words within sqaare brackets will only be inserted if the
seizure is made in the presoDce of tenants as witnesses.
(e) This return should be entered on the court-rolk.
{Licence to demise,)
No. 26. The Manor of X., in the county of T.
Be it remembered that on the day of A. B.,
lord of the said manor, by E. M., his steward, did out of
court grant to C. D., a customary tenant of the said manor, full
licence and authority to demise and lease to any person or
persons All that, &c. [^parcels according to the court-roll de-
scription]^ or any part of the said premises, for any term of
years not exceeding years, computed from the
day of last, to which same premises the said C. D. was
admitted, &c. : Saving always to the lord and his successors
in title, lords of the said manor for the time being, all and all
manner of fines, heriots, rents, customs, and services for the
said premises due and of right accustomed: And for this
licence the said 0. D. paid for a fine the sum of ■ [ac-
cording to the custom of the manor] (a).
E. M., steward of the said manor.
(a) If the fine is oertain, add the words in square brackets.
( 507 )
APPENDIX VI.
Extract from the Close Eolls of 18 Henry m. as to
Manorial Conrts.
The following translation of an extract from the Close Boll
of 18 Henry III., mem. 10 dors., concerning the interpretation
of a clause contained in Magna Charta, as confirmed in
9 Henry III., will show how the period of three weeks was
fixed for the manorial courts.
The King to the sheriff of Lincoln, gpreeting. Since We
have heard, &c., it was asserted and testified by many that in
the time of King Henry, our grandfather, as well the Hun-
dred and Wapentake Courts as the Courts of the Magnates
of England were wont to be holden from fifteen days to fifteen
days. And although it would greatly please Us to provide for
the common weal of the whole realm and the safeguard of
the poor : nevertheless, because those two tourns are not fully
sufficient to preserve the peace of our realm and to correct
excesses committed, as well against rich as poor, which things
do belong to the Hundred Courts, It is therefore provided by
the Common Council of the aforesaid Lord of Canterbury,
and of all the aforesaid bishops, earls, barons, and others, that
between the aforesaid two tourns, the Hundred and Wapen-
take Courts and also the Courts of the Magnates shall be
holden from three weeks to three weeks, where formerly they
were accustomed to be holden from fifteen days to fifteen
days, &c. And therefore We command you that hereafter
you cause the aforesaid Hundred and Wapentake Courts and
Magnates' Courts, as well of Us as of others, to be holden
according to what is declared as aforesaid from three weeks
to three weeks, except the aforesaid two tourns, which shall
hereafter be holden as they were formerly accustomed to be
holden. Witness the King, &c.
( 608 )
APPENDIX VII.
The ClutoiiiB of Tetminster Prima.
Imprtmis, The lord of the said manor ought to find a
steward to keep two courts there every year at the least, the
one about Hocktide and the other about Michaelmas.
Item, All the tenants of the said manor are bound to do
their suit and service to the same courts, upon reasonable
warning given them by the reeve, upon pain of amerciament.
Hem, The reeve is the lord's chief officer to gather Up his
rents and to levy his fines, heriots and amerciaments, all which
he is bound to deliver, and to make his accounts at Sarum
after Hocktide and Michaelmas if the lord do require it ; and
if he be robbed by the way or by his negligence, or waste or
consume any part thereof or all of the lord's money in his
hands, the tenants are bound to make satisfaction to the lord.
Hem The reeve is to be chosen at every Michaelmas
court, &c.
Item, Any tenant may assign, nominate, or surrender his
tenement to his child, or to any other person when he listeth,
at any court before the homage, or out of the court before the
reeve and two or more of the tenants, or if it so happen that
the reeve or any of the tenants be not present, he may make
notwithstanding a good surrender, nomination, or assignment,
before sufficient witness, wheresoever he shall be, by d^vering
a rush or straw, and by saying these words, or the like: — -I
A. B. do surrender my tenement which I hold of my lord in
the manor of Tetminster Prima, into his hand and to the use
of C. D., my son, or any other, 'excepting {as may be excepted),
and leaving enough for rent and repairs adjudged by the
homafi^e at the court where the tenant doth claim to be ad-
mitted, and if there be not enough, the whole homage shall be
charged with the s€kid rent or reparations.'
Item. Whatsoever the husband doth except to himself,
having then a wife, the same wife shall enjoy the said
' excepts ' in as large a manner during her life only as her
husband did or might do.
Item. The same party that doth make such a surrender
TUB CUSTOMS OF TSTMQI8TER PRIMA. 509
ahall no more be called a tenant bnt an exceptor, and enjoj
such an ' excepts ' by a writing or 'copy of excepts' during nu
life, without doing suit or serrioe, or paying any rent, and he
to whose use the surrender was made shall be the tenant
Item. If any such exceptor will farm his ' excepts,' the
tenant to the same tenement shall rent the same, if he list, one
penny within any other man's price that without fraud shall
offer the same.
Item, [As to assigpunents out of court.1
Item. If surrender be made to a maid or a widow, and so
she become tenant, he who shall marry with her shall be
taken tenant in Her right for one penny to the steward.
Item. When any tenant is admitted, he or she shall pay
imto the steward for every tenement 2«., and for every lot
\2d.j and for every half -place 6</., and shall g^ve unto the
homage a gallon of good ale and a loaf of bread, which is the
< customary-hold,' and there was never any other writing
within the manor, saving 'copyes of excepts,' which are
before mentioned.
Item. Every tenant must be resident upon his tenement,
unless upon good consideration he be licensed by the lord in
the face of the court.
Item. No tenant or exceptor can let his tenement, or any
part thereof, for longer term than for one year at one time ;
if he do, he is to be amerced f or Jt.
Item. [As to waste.]
Item. Upon the death or surrender of the tenant, the lord
shall have the best quick beast of the said tenant in the name
of a heriot, and if he hath no quick goods, then the best
goods of his household stuff or apparell, which the reeve by
his office shall presently seize and cause to be prized by some
of the tenants to the lord's use, and the lord is to choose
whether he will have the goods or the price.
Item. [As to free-bench of the wnole tenement during
widowhood and chastity.]
Item. The widows, during all the time of their widowhood,
shall have \M. yearly abated of their rent out of every tene-
ment they hold, and the reeve shall be allowed it in his
accompts of the lord.
Item. No tenement can be let for any longer estate than one
life.
Item. There can be no reversion granted to any (a).
Item. If any tenant die, having no wife, without limiting
over his tenement by surrender or assignment as is aforesaid^
(a) Afl to the power of the tenant to disjpose of the equitable inherit-
anoe by a will ^^mg sncceesiye equitable interests, see AlUn r, Btwtey^
7 Ch. IHt. 463.
510 APPENDIX VIT.
then the lord may lawfully dispose of the same tenement or
tenements at his pleasure but for one life, and in such case he
may make a choice of his tenant, and may make his own fine
without the tenants' assessments.
Item, fAs to timber for repairs.]
Item, No customary tenant can sell any timber growing
upon his tenement, &c.
Item, [As to stones for repairs.]
Item, The steward shall and ought to choose at the end of
every court two of the tenants to be assessors of all the
amerciaments.
( 511 )
APPENDIX VIII.
The Customs of the Copyholds of the Honour of Clitheroe, as
ascertained by the Jnry of Survey within the Forest of
Pendle, in the Manor of Ightenhill, A.D. 1666(a).
" Fob ascertaining the customs of the said manor we say that
the steward of the said manor ought to keep the hamlet courts
of the said manor twice per annum and not aboye, unless by
special order and direction.
n. That a copyholder may surrender his copyhold lands in
this manor, viz., by the rod in person, or by a lawful attorney
by writing, before the steward in open court, or out of court
by the steward, by the greve, or by one or two customary
tenants of the same manor, and also by the rod, by words
without writing.
m. That a suirender legally made out of court ought to
be presented into the court at, or within the third court after,
the surrendering thereof, or otherwise it becomes void ; and
the tenant who received the same, for not presenting thereof,
forfeits his copyhold estate, and ought to be so presented and
found by the homage.
lY. That if a tenant receive a surrender and within the
third court after, and before the presenting thereof, die, so
that thereby the same falls into another's keeping ; in such
case it ought to be delivered upon oath to the homage, and
by them presented into the steward's hands in open court: the
manner whereof must be expressed in writing, as a parcel of
their verdict.
Y. That the greve or customary tenant may at or within
the prefixed time by the custom of the said manor surrender
in open court the lands to them formerly delivered and
(a) The cnstomB were stated to be alike in all the other manors within
the Honour. The estates and rights of the copyholders within the Honour
seem to have been frequently called in question by the Grown at the
oommencemeDt of the seventeenth century, but were settled by decrees of
the Duchy of Lancaster Courts, and were confirmed by the private Act8
of Parliament, 7 Jao. I., Nos. 20 & 27, and 14 Oar. II. No. 64.
512 APPENDIX Vlll.
entrusted according to the donor's intent ; and the surrenderee
maj thereof take admittance, paying the accustomed fine,
viz., one year's ancient rent of the lands so surrendered and
no more.
YI. That if a tenant by copy of court-roll surrender a cus-
tomary estate, and at the time of such surrender making be
not of sound memory, such surrender is Toid and of no force.
Vll. That if the surrenderee die before his admittance, his
heir-at-law may receive the same, answering to the lord of
the said manor a double fine, viz., two years' ancient rent of
the lands whereof admittance is so given.
ym. That upon the death of every tenant, or alienation of
land, a year's rent thereof becomes due to the lord of the said
manor in the name of a fine, or relief, according to the custom
of the said manor, and no further charge.
IX. That where a husband is seised in fee of a copyhold
estate during any time of his intermarriage, his wife after his
death is dowable of a fourth part thereof.
X. That the heir-at-law of a copyholder who died seised in
fee is to be found and presented by the homac^ at the next
court after, and to be admitted tenant accordingly.
XI. That unto such heir, if under the age of fourteen years,
the homage ought also to find a guardian, who must find
sufficient pledges for the well governing as well of the body
as of the lands of the infant, until the same age, and then a
just account thereof to make (necessary expenses to be allowed) ;
after which age of fourteen years such heir may yearly and
every year, until his full age of twenty-one years, choose a
fuardian before the steward, who is to take the like pledges
uring such election.
XII. That the steward may assign a guardian to the heir
under fourteen years of age whose lands are intrusted and
instated in feoffees, taking sufficient pledges as before, and
taking therefor three shillings and four pence.
Xin. That the husband may hold the lands, of his wif^ by
the curtesy of England.
XTV. That the husband may surrender his copyhold lands
to the use of his wife ; for by that surrender tike lands are
transferred into the lord's hand to her use from whom she
takes her estate, and not inmiediately from her husband.
XV. That the surrenderee having an estate to him and his
assigns for life, lives, or years, may assign over the same
either by surrender, by an assignment, last will and testament,
or other writing lawfully executed.
CUSTOMS OF C0PYH0L1>S OF HONOUR OF CLITHEROE. 513
XYI. That a copyholder may not let his copyhold lands for
longer time than a year and a day, without a surrender.
XVn. That the party to be admitted is after three pro-
clamations, duly made in court, to take the same admittance,
but if any forbid the same, then before any admittance the
same forbid to be entered, and either granted, or else pledges
found to try the same according to custom.
XViii. That if a forbid be g^nted in open court, and so
entered and inserted in the court-rolls, the grantor thereof,
and all persons claiming under him, are excluded and debarred
accordingly.
XIX. That a copyholder may not exchange his copyhold
lands, unless it be done by surrender, so that thereby the lord
may receive a fine, viz., a year's rent of the lands so exchanged.
XX. That copyhold lands may not be entailed without a
fine or surrender from one to another, and if any such be, it
is void, and the lands shall revert to the right heir ; neither
can the same be fined for upon condition mentioned in the
fine or surrender, for that no use of trust may be contained
within the body of a fine or surrender, but a copyholder may
make feoffees in trust in his customary lands, and all manner
of uses may be expressed in an intent or schedule annexed to
the fine or surrender, or indenture or last will in writing.
XXI. That feoffees in trust may not refeoffee [re-infeoffj
other persons under a contrary or wrong use, in breach of their
trust ; neither is there any aversement against copy of court-
roU.
XXII. That all real plaints are to be entered and tried in
the same court, by a jury of twenty-four tenants, according
to the custom there ; and after the same be tried, the same
shall not be any more tried in the same court, and the plain-
tiff or defendant against whom the verdict is found (or if the
plaintiff be nonsuited) such must pay the whole charge of
calling together the jury, which is nineteen shillings and four
pence.
XXin. That a tenant holding by copy, or having been
actually possessed thirty years, ought not to be dispossessed
by the stewards, but by due course of law.
XXIY. That upon presentment made by the homage for
wrongful withholding of lands, the steward may (sitting in
the court) grant his warrant for delivery of possession accord-
ing to the ancient custom and proceedings of the court, unless
a traverse with sufficient pledges be tendered for trial thereof
at the next court by twelve men ; until which court the pledge
is to stand charged for the mean profits of lands in question.
XXY. That if the greve be molested in the execution of the
E. L L
614 APPENDIX VIII.
said warrant, the party aggrieved may show cause before the
steward, and be admitted accordingly to his traverse, giving
sufficient pledges, as in the like case is usual where the warrant
is only grounded upon a presentment.
XXVI. That if the greve by virtue of such warrant deliver
possession of the lands therein mentioned, according to the
tenor thereof, then the execution of the same warrant is
effectually perfected ; and by custom of the said manor the
steward cannot contradict the same, as to dispossess the party
so in possession either by traverse, or by colour or pretence of
any supersedeas, or otherwise grounded upon the same pro-
ceedings.
XXVII. That no writ of certiorari, nor any other writ
granted by any superior court, ought to be received by the
steward for the removing of any presentment or plaint wherein
the title of land is concerned.
XXVlil. That two or three of the homage ought to be
sworn .... to assess the several amercements upon the
presentments, &c.
XXIX. That the homage at every Michaelmas court ought
to present and find a greve for the said forest or manor, who
is not to enter into his office until the Michaelmas court next
after, and that a deputy greve ought to be elected by the
major vote of the tenants in open court, for the execution of
that office and sworn accordingly.
XXX. That the proceedings of the said court ought to be
carefully and exactly enrolled in parchment and true copies
thereof made upon request, taking therefor due fees according
to the calendar of fees hereunder written.
{Here follows a list of fees.)
XXXI (a). That the steward of the Honour of dithero
ought to enroll all surrenders that are lawfully presented to
him^ and that the said rolls or records are to be kept at the
Castle of Clithero, under three keys, and the receiver ought
to keep one of the said keys, the steward another, and one of
the copyholders within the said manor (elected by the major
part of the copyholders) ought to keep another key ; and that
the said receiver, steward, and copyholder, that have the keys
in their keeping, ought upon request made to them, by any
person that hath occasion to search the said rolls, to bring or
send the said keys of the said rolls or records ; and all such
persons who have their liberty for such search shall pay three
shillings, viz., to the receiver one, to the steward another, and
to the copyholder another shilling.'*
[a) It is stated that this article does not appear in some of the copies of
the customs.
( 616 )
APPENDIX IX.
Eztraoti from the Wills Act, 1837.
(1 Vicrr. 0. 26.)
An Act for the Amendment of the Laws tcith respect to
With. [3rd July, 1837.]
1. Be it enacted that the words and expressions hereinafter Meaniog of
mentioned, which in their ordinary signification have a more certain words
.confined or a different meaning, shall in this Act, except in this Act,
where the nature of the provision or the context of the Act °'
shall exclude such construction, be interpreted as follows : that
is to say, the word *'will" shall extend to a testament, and
to a codicil, and to an appointment by will or by writing in
the nature of a will in exercise of a power, and also to a dis-
position by will and testament or devise of the custody and
tuition of any child, by virtue of an Act passed in the twelfth
year of the reign of King Charles the Second, intituled '*An
Act for taking away the Court of Wards and Liveries and
Tenures in capite and by Knights' Service and Purveyance,
and for settling a Hevenue upon his Majesty in lieu thereof,"
or by virtue of an Act passed in the parliament of Ireland in
the fourteenth and fifteenth years of the reign of Eling Charles
the Second, intituled ''An Act for taking away the Court of
Wards and Liveries and Tenures in capite and by Knights'
Service," and to any other testamentary disposition ; and the
words ''real estate" shall extend to manors, advowsons, mes-
suages, lands, tithes, rents, and hereditaments, whether free-
hold, customary freehold, tenant right, customary or copy-
hold, or of any other tenure, and whether corporeal, incor-
poreal, or personal, and to any undivided share thereof, and
to any estate, right, or interest (other than a chattel interest)
therein; and the words "personal estate" shall extend to
leasehold estates and other chattels real, and also to monies,
shares of government and other funds, securities for money
(not being real estates), debts, choses in action, rights, credits,
goods, and all other property whatsoever which by law de-
volves upon the executor or administrator, and to any share
and interest therein ; and every word importing the singular
ll2
516 APPENDIX IX.
number only sliall extend and be applied to several persons or
things as well as one person or thing ; and every word import-
ing the masculine gender only shall extend and be applied to
a female as well as a male.
All property 3. It shall be lawful for every person to devise, bequeath,
™*y ^^- or dispose of by his will executed in manner hereinafter re-
SdU &o quired all real estate and all personal estate which he shall be'
' entitled to, either at law or in equity, at the time of his death,
and which, if not so devised, bequeathed, or disposed of would
devolve upon the heir-at-law or customary heir of him, or, if
he became entitled by descent, of his ancestor, or upon his
executor or administrator ; and the power hereby given shall
extend to all real estate of the nature of customary freehold
or tenant right or customary or copyhold, notwithstanding
that the testator may not have surrendered the same to the use
of his will, or notwithstanding that, being entitled as heir,
devisee, or otherwise, to be admitted thereto, he shall not have
been admitted thereto, or notwithstanding that the same, in
consequence of the want of a custom to devise or surrender to-
the use of a will or otherwise could not at law have been dis-
posed of by will if this Act had not been made, or notwith-
standing that the same, in consequence of there being a
custom that a will or a surrender to the use of a will should
continue in force for a limited time only, or any other special
custom, could not have been disposed of by will according to
the power contained . in this Act if this Act had not been
made ; and also to estates pur autre vie whether there shall
or shall not be any special occupant thereof, and whether the
same shall be freehold, customary freehold, tenant right,
customary or copyhold, or of any other tenure, and whether
the same shall be a corporeal or an incorporeal hereditament ;
and also to all contingent, executory, or other future interests
in any real or personal estate, whether the testator may or
may not be ascertained as the person or one of the persons in
whom the same respectively may become vested, and whether
he may be entitled thereto under the instrument by which
the same respectively were created, or under any disposition
thereof, by deed or will ; and also to all rights of entry for
conditions broken and other rights of entry ; and also to such
of the same estates, interests, and rights respectively, and
other real and personal estate, as the testator may be entitled
to at the time of his death, notwithstanding that he may
become entitled to the same subsequently to the execution of
his will.
As to the effect of a deviae of oopyholds on the estate of the oustomary
heir, aee Garland y. Mead, L. R. 6 Q. B. 441. As to the effect of a wm
in barring freebench, see Laceff y. Eillt L. R. 19 £q. 346.
EXTRACTS FROM THE WILLS ACT, 1837. 617
4. Provided always, that where any real estate of the As to the fees
nature of customary freehold, or tenant right, or customary *^^ ^^ P*y"
or copyhold, might, by the custom of the manor of which 5 JiglL #
the same is holden, have been surrendered to the use of customazy
a will, and the testator shall not have surrendered the same and copyhold
to the use of his will, no person entitled or claiming to be estates,
entitled thereto by virtue of such will shall be entitled to
be admitted, except upon payment of all such stamp duties,
fees, and sums of money, as would have been lawfully due
and payable in respect of the surrendering of such real estate
to the use of the will, or in respect of presenting, registering
or enrolling such surrender, if the same real estate had been
surrendered to the use of the will of such testator ; provided
also, that where the testator was entitled to have been admitted
to such real estate, and might, if he had been admitted thereto,
have surrendered the same to the use of his will, and shall not
have been admitted thereto, no person entitled or claiming to
be entitled to such real estate in consequence of such will
shall be entitled to be admitted to the same real estate by
virtue thereof, except on payment of all such stamp duties,
fees, fine, and sums of money as would have been lawfully due
and payable in respect of the admittance of such testator to such
real estate, and also of all such stamp duties, fees, and sums
of money, as would have been lawfully due and payable in
respect of surrendering such real estate to the use of the will,
or of pregenting, registering or enrolling such surrender, had
the testator been duly admitted to such real estate, and after-
wards surrendered the same to the use of his will ; all which
stamp duties, fees, fine, or sums of money due as aforesaid,
shall be paid in addition to the stamp duties, fees, fine, or
sums of money due or payable on the admittance of such
person so entitled or claiming to be entitled to the same real
estate as aforesaid.
5. When any real estate of the nature of customary free- Wills or
hold or tenant right, or customary or copyhold, shall be extracts of
disposed of by will, the lord of the manor or reputed manor ^^^® ^^
of which such real estate is holden, or his steward, or the f^hSds^nd
deputy of such steward, shall cause the will by which such copyholds to
disposition shall be made, or so much thereof as shall contain be entered on
the disposition of such real estate, to be entered on the court- the court-
rolls of such manor or reputed manor ; and when any trusts ^"*» ^°*
are declared by the will of such real estate it shall not be
necessary to enter the declaration of such trusts, but it shall
be sufficient to state in the entry on the court-rolls that such
real estate is subject to the trusts declared by such will ; and
when any such real estate could not have been disposed of by
will if this Act had not been made, the same fine, heriot,
dues, dudes and services, shall be paid and rendered by the
518 APPENDIX IX.
devisee as would have been due from the oustomaiy heir in
case of the descent of the same real estate, and the lord shall
as against the devisee of such estate have the same remedy
for recovering and enforcing such fine, heriot, dues, duties and
services as he is now entitled to for recovering and enforcing
the same from or against the customary heir in case of a
descent.
Estates pur g, jf no disposition by will shall be made of any estate pur
autre vie. autre vie of a neehold nature, the same shall be chargeable
in the hands of the heir, if it shall come to him by reason of
special occupancy, as assets by descent as in the case of free-
hold land in fee simple ; and in case there shall be no special
occupant of any estate pur autre vie, whether freehold or cus-
tomary freehold, tenant right, customary or copyhold, or of
any other tenure, and whether a corporeal or incorporeal
hereditament, it shall go to the executor or administrator of
the party that had the estate thereof by virtue of the grant ;
and if the same shall come to the executor or administrator,
either by reason of a special occupancy or by virtue of this
Act, it shall be assets in his hands and shall go and be applied
and distributed in the same manner as the personal estate of
the testator or intestate.
« « « « «
Wliat a 26* ^ devise of the land of the testator, or of the land of
general devise the testator in any place or in the occupation of any person
shall indude. mentioned in his will, or otherwise described in a general
manner, and any other general devise which would describe
a customary, copyhold, or leasehold estate, if the testator had
no freehold estate which could be described by it, shall be
construed to include the customary, copyhold, and leasehold
estates of the testator, or his customary, copyhold, and lease-
hold estates, or any of them, to which such description shall
extend, as the case may be, as well as freehold estates, unless
a contrary intention shall appear by the will.
« « « « «
How a devise 28. Where any real estate shall be devised to any person
without words without any words of limitation, such devise shall be construed
^h \\"?j**^^^^ to pass the fee simple, or other the whole estate or interest
stnied.^ ^^" which the testator had power to dispose of by will in such
real estate, unless a contrary intention shall appear by the
will.
( 519 )
APPENDIX X.
Eztraoti from the Copyhold Aot, 1841.
(4 & 5 Vict. o. 35.)
An Act for the commutation of certain nutnorial rights
in respect of lands of copyhold and cmtomary tenure^
and in respect of other lands subject to such rights;
and for facilitating the enfranchisement of such lands
and for the improvement of such tenure.
[21st June, 1841.]
85. It shall be lawful for any court of equity in any suit Courts of
to be hereafter instituted therein for the partition of lands of Equity may
copyhold or customary tenure, to make the like decree for ?.®?'^^P*^j
_x • • xu • T_x i xv x' _x' X i.v 'x • tition of lands
ascertaining the nghts of the respective parties to the suit in ^f copyhold or
such lands, and for the issue of a commission for the partition customary
of the same lands, and the allotment in severalty of the tenure.
respective shares therein, as according to the practice of such
court may now be made with respect to lands of freehold tenure.
86. After the thirty-first day of December one thousand Lords of
eight hundred and forty-one it shall be lawful for the lord of manors or
any manor or his steward, or the deputy of such steward, to ^^ fter 31 t
hold a customary court for such manor, notwithstanding at De^mber
the time of holding the same there shall not be any person i84l, hold*
who shall hold lands of such manor by copy of court-roll, and customary
also notwithstanding, if there shall at the time of holding such ®?^{f*** -.
court be any person or persons who shall hold lands of such ^plf^a ^^
manor by copy of court-roll there shall not be any such person tenant be
present at such court or there shall not be more than one present,
such person present at such court : and every court so holden
shall be deemed and taken for all purposes whatsoever to
be a good and sufficient customary court : provided always,
that no proclamation made at any court so holden shall affect
the right, title, or interest of any person not present at the
same, unless notice of such proclamation having been made
shall be duly served within one month after such meeting
shall have been holden on the persons whose right, title, or
interest may be affected by such proclamation.
520
APPENDIX X.
Lords or their
stewards may
after 3l8t De-
oember« 1.841,
makeoutofthe
manors and
out of court
grants of
lands to be
held by copy
of coort-roll.
Lords or their
stewards may
after 3 let De-
cember, 1841,
grant admis-
sions out of
manors and
out of court.
87. After the thirty-first day of December one thousand
eight hundred and forty-one it shall be lawful for the lord of
any manor or his steward, or the deputy of such steward, to
grant at any time and at any place either within or out of
such mauor, and without holding a court for such manor, any
lands parcel of such manor, to be held by copy of court-roll
or according to the custom of the said manor, which such lord
shall for the time being be authorised or empowered to grant
out to be held by copy of court-roll, or according to such cus-
tom, so nevertheless that such lands be granted for such estate;
only, and to such person only, as such lord, steward, or deputy
shall for the time being be authorised or empowered to grant
the same.
88. After the thirty-first day of December one thousand
eight hundred and forty-one it shall be lawful for the lord
of any manor or his steward, or the deputy of such steward,
to admit at any time and at any place either within or out of
such manor, and without holding a court for such manor, any
person as tenant to any lands, parcel of such manor, to be held
by copy of court-roll, or according to the custom of suoh
manor, to and for which such person shall for the time bein^
be entitled to be admitted.
89. After the thirty-first day of December one thousand
eight hundred and forty-one every surrender and deed of
surrender which the lord shall be compellable to accept, or
shall accept, and also every will and codicil, a copy of which
respectively shall be delivered to the lord of the manor of
which the lands affected by such surrender, deed of surrender,
will, and codicil are parcel, or to his steward, or the deputy of
such steward, either at any court holden for such manor at
which there shall not be any homage assembled, or out of
court, and also every grant and admission by the lord of any
manor or his steward, or the deputy of such steward, pursuant
to this Act, shall be forthwith entered on the court-rolls of
the manor by such lord, or steward, or deputy : and every
entry made on the court- rolls of any manor pursuant to this
present clause shall for all purposes whatsoever be deemed
and taken to be an entry maoe in pursuance of a presentment
made at a court holden for such manor by the homage assem-
bled thereat : and the steward or his deputy shall be entitled
to the same fees and other charges for making such entry on
the court-rolls as he would have been entitled to in respect of
such entry in case the same had been made in pursuance of a
g resentment made at a court holden for such manor by the
omage assembled thereat.
After SlBt 30. After the thirty-first day of December one thousand
December, eight hundred and forty-one it shall not be essential in any
1841, present-
After 3 1st De-
cember, 1841,
every sur-
render, &c.,
delivered to
the lord or
steward, and
every fact
proved to
the lord or
steward at
any court
whereat a
homage shall
not be
assembled,
shall be forth-
with entered
on the court-
rolls.
EXTRACTS FROM THE COPYHOLD ACT, 1841. 52 1*
case to the validity of the admission of any person as tenant ment by the
of any lands held of any manor by copy of court-roll, or homage shall
according to the custom of such manor, that a presentment J°' ^ Msen-
shall be made by the homage assembled at any court held for ^^^^^7 of an
such manor of the surrender, will, or other instrument or admiasion.
fact, in pursuance or in consequence of which such admission
shall have been granted.
91. Provided always, that where by the custom of any Lords of
manor, the lord of such manor is authorised, with the consent manors in
of the homage of such manor, to grant any common or waste certain cases
lands of such manor to be holden of the lord by copy of court- ^jSj^o^j*^
roll, nothing in this Act contained shall operate to authorise ^aste lands
or empower the lord to grant any such common or waste lands without con-
without the consent of the homage assembled at a customary sent of the
court holden for such manor, nor shall any court holden for ^o™*^fi?® of
such manor be deemed or taken to be a good or sufficient
customary court for such purpose, unless the same shall have
been duly summoned and holden according to the custom of
such manor in such cases used and accustomed before the
passing of this Act, and unless there shall be present at such
court a sufficient number of persons holding lands of such
manor by copy of court-roll to constitute according to such
custom a homage assembled at such court.
92. It shall be lawful for any tenant of any manor, by and Power to
with the licence of the lord of the manor, or the steward lords to grant
thereof (which licence such lord is hereby authorised to give, licences to
or to empower the steward to give, by any writing under his ^^^t© Uieir
hand, to be afterwards entered on the rolls of the manor), to ancient tene-
dispose of his ancient tenement or any part thereof by devise, ments in por-
sale, exchange, or mortgage in such parcel or parcels as he tions where
shall think proper, but subject to the payment of such portion *^®Z^**^^
or portions of the yearly customary lord's rent payable for ^ custom ^
the whole of such ancient tenement as shall be set and appor- from so doing,
tioned upon such parcel or parcels by the lord of the manor
of which such ancient tenement is holden, or his steward, or
the deputy of such steward ; and such parcel or parcels shall,
except so far as the tenure or descent thereof shall be affected
by this Act, be held of the lord of the same manor in all
respects and shall be from time to time conveyed in such
manner as any such original tenement has by custom been
held and conveyed.
« « « « «
97. The provisions of this Act enabling tenants to grant Certain pro-
rights of way or entry and other easements to the lord of the visiouK of tiiis
manor in or upon and through their respective lands for Act to extend
mining purposes ; for enabling courts of equity to decree a *^ ^^'^^^
partition of lands of copyhold or customary tenure ; for lands.
522 APPENDIX X.
enabling lords of manors or their stewards to hold customary
courts, although no copyhold tenant be present ; and for ena-
bling lords or their stewards to make out of the manors and J
out of court grants of lands to be held by copy of court-roll ; t
for enabling lords or their stewards to grant admissions out
of the manors and out of court ; and for requiring every sur-
render, will, and codicil, a copy of which shall be delivered to
the lord or steward, and eveiy fact proved to the lord or
steward at any court whereat a homage shall not be assem-
bled, to be forthwith entered on the court-rolls, and deter-
mining that presentment by the homage shall not be essential
to the validity of an admission, shall extend and apply to
manors or lands vested in her Majesty in right of her Grown
and the Duchy of Lancaster, and to any enfranchisement of
lands held of such manors to be effected xmder the powers
given by any existing Act or Acts of Parliament and the
stewards and tenants for the time being of such manors.
( 628 )
APPENDIX XI.
The Copyhold Act, 1862.
(15 & 16 Vict. c. 51.)
An Act to extend the provmons of the Acts fo)^ the commuta-
tion of manorial rights^ and for the gradual enfranchise-
ment of lands of copyhold and customary tenure,
[30th June, 1852.]
1 . At any time after the next admittance to any lands which For efleoting
shall take place on or after the first day of July one thousand enfranchise-
eight hundred and fifty-three (a), in consequence of any sur- T^^j^^,
render, bargain and sale, or assurance thereof (except upon or tance.
under a mortgage in cases where the mortgagee is not in pos-
session), or in consequence of any descent, gift, or devise, and
whether such surrender, bargain and sale, or assurance shall
have been made, passed, or executed, or such descent shall
happen, or such gift or devise shall take effect before or after
that day, it shall be lawful for the tenant so admitted or for
the lord to require and compel enfranchisement in manner
hereinafter mentioned of the lands to which there shall have
been such admittance as aforesaid; provided that no such
tenant shall be entitled to require such enfranchisement until
after payment or tender of the fine or fines and of the fees
consequent on such admittance : provided also, that if from
any cause such enfranchisement shall not take place until
some event shall have happened which may require a second
or any subsequent admittance, such second or subsequent
admittance shaU be made, with aU the rights incident thereto,
as if this Act had not passed (^), and it shall be competent for
the lord or tenant to require and compel enfranchisement
upon or after such second or subsequent admittance in the
manner hereby provided for enfranc^sement upon the next
admittance.
(a) See the Copyhold Act, 1858, sect. 6.
]h\ See Myert v. ffodffton, 1 C. P. Div. 609, and the Copyhold Act,
1887, sect. 31.
2. lEepeaied by the Copyhold Act, 1858, sect. 2, and a neto ^^®',
method provided by sect. 8 thereof} ^fin^Siae-
ment.
524
APPENDIX XI.
Appointment
of valuer not
to be revoked
without
mutual con-
sent, except
that Commis-
sioners maj
remove for
misconduct,
&o.
In case of
death, &c.,
of valuers,
others to be
appointed.
Commis-
sioners, &c.,
may call for
ana enforce
production of
books and
documents.
Power of
entry for
purposes of
Act.
Valuers, how
to proceed.
Questions of
law or fact
may be re-
ferred to
Commis-
sioners.
Appeal to be
3. The appointment of a valuer by the lord or by the tenant
shall not be afterwards revoked except by the mutual consent
of the lord and tenant ; provided always, that it shall be law-
ful for the Commissioners (a) at any time, on complaint of
either party, to remove any valuer or umpire for misconduct,
or for refusal or omission to act (b).
(a) The Commissioners are now represented by the Board of Agricul-
ture : 52 & 63 Vict. c. 30.
{b) See also the Copyhold Act, 1887, sect. 12.
4. [^Repealed by the Copyhold Actf 1887, sect. 51. See
sect. 12 thereo/."]
5. The Commissioners, assistant commissioners, and valuers
niay, by summons under the seal of the Commissioners, call
for the production for any of the purposes of this Act, at such
time and place as the Commissioners shall appoint, of any
court-rolls or copies of court-roll in the possession or power of
any lord or tenant, or of the steward of any manor, and may
by summons under such seal summon and examine any lord
or tenant, or other person on oath, and administer the oath
necessary for that purpose ; and every person who shall have
been summoned, and to whom a reasonable sum shall have
been paid or tendered for his expenses, and who shall without
lawful excuse neglect or refuse to attend or to produce any
such documents so called for as aforesaid, shall, being con-
victed thereof before any two justices of the peace for the
county wherein such proceedings were held, forfeit the sum
of five pounds ; and any person who shall wilfully give false
evidence in any proceeding under this Act shall be guilty of
perjury ; provided always, that no lord or tenant so summoned
shall be bound to answer any questions as to his title.
6. It shall be lawful for the Commissioners, assistant com-
missioners, and valuers, and their agents or servants respec-
tively, upon giving reasonable notice to the occupier, to enter
upon any of the lands and hereditaments proposed to be dealt
with under the provisions of this Act, and to make all neces-
sary admeasurements, plans, and valuations of the same,
without being subject to any action, obstruction, or hind-
rance, making compensation for all injury, if any, occasioned
thereby.
7. {^Repealed by the Copyhold Act, 1887, sect. 51. See
sect. 11 thereof. '\
8. In case any objection shall be made, or question shall
arise, in the course of the valuations in any enfranchisement to
be effected by an award under the Copyhold Acts, in relation to
any alleged custom, or the evidence thereof, or any matter
of law or fact material to such valuation or arising on any
THE COPYHOLD ACT, 1852. 525
enfranchisement, the same shall, on the request in writing bad on maJbber
and at the option of any one of the parties on either side of of law on a
the matter in difference, be referred to the Commissioners or °**® stated,
assistant commissioner, who shall inquire into and ascertain
the same ; and the decision of such Commissioners or assistant
commissioners shall be final: provided nevertheless, that
where any one of the said party or parties dissatisfied with
any decision of such Commissioners or assistant commissioner
on any matter of law shall be desirous to appeal, then the like
proceedings may and shall be had for obtaining the decision
of one of the superior Courts of Law at Westminster thereon,
and such decision shall be binding in like manner as is pro-
vided by the said Act of the session of the fourth and fifth
years of her Majesty, chapter thirty- five, where a person is
dissatisfied with the decision of such Commissioners or an
assistant commissioner which involves a point of law only, and
the parties in difference are agreed upon the facts relating
thereto : provided always, that no such proceedings as afore-
said shall be had unless a request to the Commissioners to
direct a case to be stated as in the said Act mentioned be made
within twenty-eight days after the decision in respect of which
the appeal is desired.
The words in italics were, by the Copyhold Act, 1887, sect. 29, subeti-
toted for the words " upon or prior to any admittance or in the course of
such valuations."
The question whether any evidence produced in support of an alleged
custom proves such custom is a question of fact to be determined by the
Board of Agriculture : Heynolds v. Woodkam Walter Manor {Lord of),
L. R. 7 C. P. 639. Award to be
confirmed by
9. [^Repealed by the Copyhold Act , 1887, sect. 51. See the the Commis-
Copyhold Act, 1858, sect. 10, and the Copyhold Act, 1887, sioners.
sect. 22. j Charge under
10. \_Repealed by the Copyhold Act, 1858, sect. 2. See first charge.
sect. 33 thereof.^ Enfranchise-
11. [Repealed by the Copyhold Act, 1858, sect. 2. See the ^^^^
Copyhold Act, 1858, sect. 10, and the Copyhold Act, 1887, f^^in^
sect. 2 2. J schedule.
12. [Repealed by the Copyhold Act, 1858, sect. 2. See Form of
sects. 29 and 36 thereof.^ charge.
13. [Repealed by the Copyhold Act, 1858, sect. 2. See be transfer-
sects. 30 and 37 thereof, j able by en-
14. [Repealed^ by the Copyhold Act, 1858, sect. 2. See «,
sect. Shhereon ^J^Ze.
15. It shall be lawful for the said^Commissioners to correct Commis-
and supply any manifest error or omission in any award, or sioners may
in any deed of enfranchisement or charge under this Act, or correct any
error in
626
APPENDIX XI.
award, &o,
after notioe
to parties
interested.
Vainer to take
particniar
cironmstanoes
of the oases
into con-
sideration.
any other instrument authorised by this Act to be made or
issued by the said Commissioners, after such notice to the
parties interested as the said Commissioners shall deem suf-
ficient ; provided that no such error or omission shall be cor-
rected or supplied more than five years after the execution of
any such award, deed, or instrument.
The provisions of this section have been enlarged by sect. 44 of the
Copyhold Act, 1887.
16. In making any valuation under this Act the valuers
shall take into account the facilities for improvement, customs
of the manor, fines, heriots, reliefs, quit-rdnts, chief-rents,
escheats (a), forfeitures, and all other incidents whatever of
copyhold or customary tenure, and all other circumstances
aftecting or relating to the land which shall be included in
such enfranchisement, and all advantages to arise therefrom,
and shall make due allowance for the same (6).
(a) The value of escheats for want of heirs is not now to be taken
into consideration : Copyhold Act, 1887, sects. 4 and 5.
(b) The capability of the land for future improvement owing to removal
of restrictions affecting the customary estate is to be taken into oonsideni-
tion : Lingwood v. Gyde^ L. B. 2 C. P. 72.
As to deductions for impediments standing in way of improvements,
see ArcUn v. Wilson^ L. R. 7 C. P. 635.
As to dalm for compensation in respect of lord's right to timber, see
Reynolds v. Woodham WalUr Manor {Lord of), L. R. 7 C. P. 639.
As to claim for compensation in respect of heriots, see Fadwick v.
TyndaU^ 1 E. & £. 184.
If considera- 17. In case such enfranchisement consideration, or the
tiiTlo^ m^y interest thereon, shall not be paid at the time stipulated or
take posses- provided for payment thereof respectively, the lord or other
sion. person for the time being entitled to the benefit thereof shall
become entitled to the rents and profits of the land in respect
of which the same enfranchisement consideration or interest
shall be due ; and it shall be lawful for such lord or other person
to proceed to obtain possession of the said land, or the rents
and profits thereof, in like manner as if the land had remained
unenfranchised and been lawfully seized into the hands of
the lord for some default of a tenant ; and all the rights and
remedies by the said recited Acts or any of them given for
the recovery of rent-charges, sums of money, and other pay-
ments, shall be applicable to the sums of money, interest, and
payments payable under this Act, in the same manner as if
such consideration had been a consideration for an enfranchise-
ment under the said Acts.
See the Copyhold Act, 1841, sects. 47, 48, 49, 61, 70, and the Copyhold
Act, 1843, sects. 8, 10, for the rights and remedies referred to m thia
section.
THS COPYHOLD ACT, 1852. 627
18. Where any lord or other person for the time being en- Land so
titled to the benefit of any enfranchisement consideration, or obtained by
the interest thereon shall have obtained possession of the land ^'^ ""^7 ^
under the powers and provisions of the said recited Acts or ™eS£ff
this Act, it shall be lawful for the said lord or other person as seyen yeojs.
aforesaid to let such land, or any portion thereof, for any
period not exceeding seven vears, in possession, at such rent
as can be reasonably obtained for the same ; and the restitution
of such land, on payment or satisfaction of the money due and
of all costs and expenses, shall be subject and without pre-
judice to any such lease.
19. The steward for the time being of any manor of which Stefwaxd's^
any lands enfranchised under this Act shall be parcel shall, oompenMtion
on every such enfranchisement, be entitled to receive from the r^^^^o«
tenant, as a compensation for the trouble of such steward of^^of
about such enfranchisement, and for the extinguishment of enfranohifle-
his office with respect to such lands, such a sum as the said ment.
Commissioners may direct, and, in the absence of such direction
on this subject, such a sum as will amount to one set of fees
on surrender and admittance for each of the tenements included
in such enfranchisement, such fees to be calculated according
to the reasonable custom or usage prevalent in the manor
whereof such lands shall be parcel, and in case the parties
shall differ about the same, the amount shall be ascertained
by the Commissioners ; and the steward, in consideration of
such compensation, shall prepare and deliver to the tenant a
proper deed of enfranchisement, duly executed by the lord,
without making any charge for the same, or for completing
the enfranchisement, save stamp duty and parchment : pro-
vided always, that if more than one set of fees is demanded
by the steward, it shall be lawful for the said Commissioners
to moderate and tax the amount of such fees to such sum as
shall appear to them just and reasonable.
See the Copyhold Aot, 1858, sect. 10, and the Copyhold Act, 1887,
sect. 27, for further provisionfl as to the steward's compensation.
20. At any time after an enfranchisement effected under the Inspection,
said -recited Acts or this Act, it shall be lawful for any persons &©. of court-
seised of or interested in the lands which have been so enfran- ^^^^ ^ *^®
chised to have access to and to inspect the court-rolls of the ™*"^^'*
manor of which the said lands were holden, and to demand
and have copies thereof, on payment of a reasonable sum for
the same ; and the said Commissioners, if they shall think it
necessary or expedient, may fix a scale of fees to be payable
to the steward or other person having custody of the court-
rolls for such inspection of the court-rolb, and for making all
necessary extracts or copies thereof.
528 APPENDIX XI.
After enfran- 21. When and as soon as all the lands held of any manor
<*i8ement, shall be enfranchised, the lord or other person having custody
Sve cro to^e ^^ ^^® court-rolls of such manor may, if he thinks fit, g^ve up
GommiB- c^^ hand over to the said Commissioners all such oourt-roUsy
sionen all the and from thenceforth all persons seised of or interested in such
ooort-rolls. lands shall have access to and may inspect such court-rolls,
Inspection, and obtain copies thereof on the payment of such reasonable
&c. thereof, f^^g ^^ ^ ^\^q goj^ Commissioners may seem fit and proper.
Under the prorisions of the Copyhold Act, 1887, sect. 48, the ooort-
rolls may now be delivered to the Master of the Bolls.
Title of lord, 22. Previous to any enfranchisement under this Act, it shall
to be made for be lawful for the lord and steward, if they shall see fit, and if
the purpose of ti^ere shall be no steward then for the lord alone, to make a
ment^^ ' solemn declaration, in such form as the said Commissioners
shall direct, and to be taken and subscribed as solemn declara-
tions are by an Act made and passed in a session held in the
fifth and sixth years of his late Majesty King William the
Fourth, chapter sixty-two, directed to be taken and subscribed,
stating therein the nature and extent of the estate and interest
of the lord in the manor of which he is such lord, and the date
and short particulars of the deed, will, or other instrument
under which he claims or derives title, and the name and style
or other designation or description of the person in whose name
the court of any such manor was then last holden, and the
date or time of the holding of such court, and the incum-
brances, if any, whether by mortgage, judgment, or other-
wise, which aftect such manor ; and it shall be lawful for the
said Commissioners and they are hereby directed to approve
of such title for the purposes of this Act, which approval
shall be testified under their hands and seal, upon such evi-
dence alone, unless they shall be of opinion that further
information is necessary in the respects aforesaid ; but if the
said Commissioners shall consider that such evidence does not
fully and truly disclose all such particulars as are necessary,
or if no such declaration shall be made, or if the lord shall refuse
or decline or fail to g^ve such information and evidence as they
shall deem proper and necessary to show a satisfactory primd
facie title in the lord, or in persons claiming under or in trust
for him, and if the said Commissioners shall consider either
that the title of the lord is not satisfactory, or that the incum-
brancer should be protected, then, if they think the justice of
the case requires it, they may direct that the enfranchisement
consideration shall be invested as hereinafter directed in case
of lords under disability.
See the Copyhold Act, 1887, sect. 32. There is no obligation on the
vendor of land enfranchised nnder the Copyhold Acts to produce the
title of the lord of the manor : Kerr y. Pawwn, 25 Beav. 394.
THE COPYHOLD ACT, 1852. 529
23. In all cases in wMch the lord shall apply to the Com- After an
missioners to effect an enfranchisement as aforesaid, it shall application
be lawful for the tenant of the lands so proposed to be en- chLem^t'
franchised to require that the said Commissioners shall satisfy tenant may
themselves, in such way and by such evidence as they shall require Corn-
see fit, of the title of such lord to the manor of which the missioners to
lands are held. 3™ -*<>
24. {^Repealed by the Copyhold Act, 1887, sect. 51. See *^*^®'
sect. 42 thereof.'] 1^*"*^
25. With respect to any land proposed by any tenant to be As to pur-
enfranchised under this Act, in case the lord shedl show to the chase bj the
satisfaction of the Commissioners that any change in the con- ^^^ ^ certain
dition of such land, which but for this Act would or might
have been prevented by the incidents or conditions of the
tenure thereof, will prejudicially afPect in enjoyment or value
the mansion-house, park, gardens, or pleasure grounds of such
lord, and in case such lord shall by writing under his hand offer
to purchase the tenant's interest in such lands so proposed to be
enfranchised, and shall give notice to the tenant of such offer,
then, unless the tenant shall accept such offer within twenty-
eight days after receiving notice thereof, such land shall
remain unenfranchised, unless the Commissioners shall think
fit to impose such terms and conditions in case of enfranchise-
ment, as shall in their judgment be sufficient to protect the
interests of the lord; and in case the tenant shall within
twenty-eight days as aforesaid signify in writing to the Com-
missioners his acceptance of the said offer, such offer by the
lord and acceptance by the tenant shall be binding both upon
lord and tenant ; and in case the lord and tenant shall not
within such time as the Commissioners shall limit agree on
the value of the rights and interest of the tenant, it shall be
lawful for the Commissioners to appoint a valuer for the pur-
pose of ascertaining such value, or to refer the same to the
valuers, if any, then acting in the enfranchisement ; and all
the costs, charges, and expenses of such valuation and attend-
ing such purchase shall be borne by the lord ; and when such
value shall have been agreed upon or ascertained as aforesaid
the Commissioners shall issue a certificate under their hands
and seal, which shall state the land which shall have been sold
to the lord and the consideration money for the same, and
shall declare that upon pa3rment of the consideration money
therein mentioned within a time to be therein limited such
land shall at the time of such payment be surrendered or
released by the tenant (at the expense of the lord) to the lord,
and thereupon such land shall vest in such lord accordingly :
provided always, that in case such consideration money shall
not be paid within the time limited by the Commissioners, or
E. M M
530
APPENDIX XI.
Power to lord
having a
limited in-
terest to
oharg^ pur-
chase-money
on manor, &c.
Declaration to
be taken by
valuers.
As to re-
covery of
interest in
enfranchise-
ment consi-
derations.
As to ex-
pense of
proceedings
under this
Act.
within Buch further time as the Commissioners may have
granted in that behalf, and it shall appear to the Commis-
sioners that the same shall have remained unpaid by the
default of the lord, it shall be lawful for the Commissioners
to cancel such certificate, and such enfranchisement may be
proceeded with as if such offer and acceptance as aforesaid
had not been made, and all costs which the CommissionerB
shall certify to have been incurred by the tenant in conse-
quence of such offer, acceptance, and default shall be paid by
tiie lord to the tenant.
26. [^Eepealed hy the Copyhold Act, 1858, sect. 2. See
sect. 23 thereof J]
27. [^This section provided that tohen a heriot should become
due and payable at any time after the 1st of July, 1853, the
lord or tenant might require or compel enfranchisement: but
it was repealed by the Copyhold Act, 1 858, s, 2. Fresh pro-
visions were enacted by sect. 7 of that Act, but these in turn
have been repealed by the Copyhold Act, 1887, which now
provides {sect. 7) that the lord or tenant may compel the extin*
guishment of all manorial incidents.'\
28. Before any valuer shall enter upon the valuation under
this Act he shall, in the presence of a justice of the peace,
xnake and subscribe the^foUowing diation; (that'is to
Bay):—
''I A. B. do declare that I will faithfully, to the best of
my ability, value, hear and determine the matters refeired to
me under the Copyhold Acts. A. B.
** Made and suDscribed in the presence of ."
And such declaration shall be annexed to the schedule of
valuation, when made ; and if any valuer, having made such
declaration shall wilfully act contrary thereto, he shall be
guilty of a misdemeanour.
29. In case the interest payable in respect of any g^ross
sum of money, pursuant to any award under this Act, or any
part of the same, shall be in arreeir for thirty days after the
same shall become due, it shall be lawful for the person for
the time being entitled to receive such interest to levy the
same by the same means and remedies and in the same man-
ner in all respects as if the same had been rent in arrear upon
a lease for years.
30. The expenses of the proceedings for effecting any en-
franchisement under this Act, and all expenses which in the
judgment of the said Commissioners may be incidental thereto,
whether for the proof of title, the production of documents,
expenses of witnesses, or otherwise, shall be borne by the
THE COPYHOLD ACT^ 1852. 631
party, whether lord or tenant, who ehaJl have reqtiired the
enfranchisement, but no costs or expenses shall be due or
recoverable from any person until the same shall have been
certified, under the hands and seal of the said Commissioners,
or of an assistant Commissioner, to have been reasonably and
properly incurred; and in case any dispute or difference shall
arise as to the amount of such expenses, the certificate of the
Conmiissioners or assistant Commissioner shall be final, and
any person to whom such certificate shall be granted shall
have the same means and remedies for the recovery of the
sum mentioned therein as are provided by the said recited
Acts, or by this Act, for the recovery of the consideration for
an enfranchisement under this Act.
See the Copjhold Act, 1887, s. 35, for further provisionB as to expenses.
31. In every case in which the lord shall require and compel How ex-
an enfranchisement under this Act, where such lord shall be penses of
an ecclesiastical corporation or a corporation sole not having «nfranchiw-
an absolute power of sale, or shall have only a limited interest tJ)me where
in the manor or be a trustee thereof, the expenses of the the lord has
proceedings for effecting such enfranchisement, and all ex- but a limited
penses which in the judgment of the said Commissioners may interest in a
be incidental thereto, whether for the proof of title, the pro- ^^'^^ °' ^
duction of documents, expenses of witnesses, or otherwise (the thereof,
amount of such expenses being subject to the approval and
certificate of the said Commissioners as hereinbefore is men-
tioned), shall be paid out of the first moneys to be received
for any enfranchisement to be effected under this Act, when
the consideration for such enfranchisement shall be a gross
sum of money ; [and in cases where such consideration shaU not
be a gross sum of money, then the said expenses shall be
charged, together with interest for the same, at the rate of
not exceeding four pounds per centum per annum, on the
said manor, or other lands settled or held therewith, in such
manner as to the said Commissioners may seem fit and proper].
The provisions as to charging were repealed bj the Copyhold Act,
1858, s. 2. See sects. 21—37 of that Act.
32. [^Repealed by the Copyhold Act^ 1858, sect. 2. See How tenants'
sects, 21 — 37 of that Act, and sect, 23 of the Copyhold Act, expenses of
1887.1 enfranchise*
ment are to
33. The confirmation under the hands and seal of the be borne.
Conmiissioners of any award or the execution by the Com- Confirmation
missioners of any deed or instrument whereby any enfran- of award by
chisement shall be effected under the said Acts or this Act, 9°™°"*" ,
shall be conclusive evidence that all the directions in relation p^of of prior
to the enfranchisement intended to be effected by means of ptooeedings
such award, deed, or instrument, which ought respectively to be^ regular,
M M*2
632
APPENDIX XI.
After oon-
firmation of
apportion-
ment, &o*
in caflee of
enfranohiae-
menti the
custotnaij
modes of
descent to
cease, and the
lands to
descend and
to be snbjeot
to dower and
curtesy in like
manner as
freehold
lands.
Gommifl-
sioners to
have power
to suspend
proceedings.
have been obeyed or perfoimed previously to such confmna--
tion or execution respectively, nave been obeyed and per-
formed; and no such award, deed, or instrument shall be
impeached by reason of any omission, mistake, or informality
therein, or>in any proceeding relating thereunto, or on account
of any want of any notices or consents required by the said
Acts or this Act, or on account of any defects or omissions in
any previous proceedings whatever in the matter of such en-
franchisement.
34. From and after [the final confirmation of any schedule
of apportionment under the said recited Acts and from and
after] the final enfranchisement of any lands under this Act
or the said recited Acts, the several lands included in any such
enfranchisement shall thenceforth cease to be subject to the
customs of borouffh-English or gavelkind, or to any other
customary mode oi descent, or to any custom relating to dower
or freebench or tenancy by the curtesy of England, or to any
other custom whatever ; and all the laws relating to descents
or to estates of dower or estates by the curtesy of England
which shall for the time being aifect and be applicable to
lands held in free and common socage shall thenceforth affect
and be applicable to the lands included in every such enfran-
chisement : provided always, that nothing herein contained as
to curtesy or dower or freebench shall extend or be applicable
to the case of any person who shall have been married before
such enfranchisement shall have been completed: provided
always, that nothing in this Act shall affect the custom of
gavelkind as the same now exists and prevails in the county
of Kent.
The words in brackets were in effect repealed by the Copyhold Act,
1858, sect. 2.
See In re Ryder, 20 Ch. Div. 514, as to the power of the Court to
make a declaration as to the descent of enfranchised lands belonging to a
lunatic.
35. Notwithstanding anything herein contained, it shall be
lawful for the Commissioners from time to time to suspend
any proceeding under this Act for the enfranchisement of any
land, where any peculiar circumstances render it impossible,
in the opinion of the said Commissioners, to decide on the
prospective value of the lands to be affected by such proposed
enfranchisement, or where any especial hardship or injustice
would unavoidably result from any compulsory proceeding :
provided always, that when the said Commissioners shall so
suspend any proposed enfranchisement they shall state the
reasons of such suspension in their general report, which shall
be laid before Farhament as directed by the first recited Act.
See Reynolds y. TFoodham Walter Manor {Lord of), L. R. 7 C. P. 689.
THE COPlfHOLD ACT, 1852. 588
36. In all cases in which the person for the time being Power to lord
entitled to the receipt of anjrentcharge under the said recited *^ *^ "'^*"
Acts or this Act shaU be entitled thereto for a limited estate or ^**'8r®*
interest only, or shall be a corporation not authorised to make
an absolute sale of such rentcharge otherwise than 'under the
provisions of this Act, it shall be lawful for such person, with
the consent of the said Commissioners, testified under their
hands and seal, or, in the case of coverture, infancy, idiotcy,
lunacy, or other incapacity, with the consent of the husband,
guardian, committee, or trustee of such person so under
disability, to sell and transfer such rentcharge, the payment
for which shall be made in manner hereinafter mentioned.
37. In every case in which a rentcharge is payable under Commis-
the provisions of the recited Acts or this Act the Commis- ^^P ^
sioners shall upon the request of the owners of land chargeable ^JJ[^tof
with such rentcharge, or any of them, certify under the hands oonsideration-
and seal of the Commissioners the sum of money in considera- money for
tion of which such rentcharge may be redeemed ; and when redemption,
it shall appear to the Commissioners that payment or tender
of such consideration money has been duly made, it shall be
lawful for the Commissioners to certify that such rentcharge
has been redeemed under the provisions of this Act, and such
certificate shall be final and conclusive : provided always, that
no such redemption shall be effected in the case of rentcharges
created before the passing of this Act, under the provisions of
the said recited Acts, except with the consent in writing of the
person or persons entitled to the receipt of such rentcharge.
See seots. 17 and 18 of the Copyhold Act, 1887, for further provisions as
to the redemption of rentoharges and the recovery -of the redemption
money.
38. Where the person entitled to a rentcharge redeemable Considera-
under the provisions of this Act shall be absolutely entitled tion-money
thereto in fee simple in possession, or shall be enabled to J?"^^""?*
dispose of the fee simple in possession independently of the ^qw payable,
provisions of this Act, and shall not be a spiritual person en-
titled in respect of his benefice or cure, or a corporation pre-
vented from aliening such rentcharge otherwise than under
the provisions of this Act, a payment or tender to the person
so entitled of the sum of money certified by the Commissioners
as aforesaid after six months notice to the person entitled to
such rentcharge shall be deemed a due payment of the con-
sideration money, and in every other case the payment of the
sum of money so certified according to the provisions herein-
after contained shall be deemed a due payment of the con-
sideration money.
39. In all cases in which the person for the time being Considera-
entitled to any rentcharge subject to be redeemed or sold tion-money
•'<'•' in cases of
534 APPENDIX XI.
owners under under the proYiBions of this Act, or entitled to any gross sum
diaablliiy, payable by way of compensation for enfranchisement, shall
how payable. \^q qj^j entitled thereto for a limited estate or interest therein,
or as trustees for sale or otherwise, without power to give an
effectual discharge for the same, or shall be under any
disability, or shall be a corporation not authorised to make
an absolute sale of such rentcharge otherwise than under the
provisions of this Act, the consideration money to be paid for
the redemption or sale of such rentcharge, or as compensation
for such enfranchisement, shall be applied in manner herein-
after provided ; (that is to say,) shall, at the option of the
person for the time being entitled as aforesaid, be paid into
the Bank of England in the name and with the privity of the
Accountant G-eneral of the Court of Chancery, to be placed to
his accoimt there ex parte the Copyhold Commissioners, pur-
suant to the method prescribed by any Act for the time being
in force for regulating moneys paid into the said Court ; and
such moneys shall remain so deposited until the same be
applied to some one or more of the following purposes ; (that
is to say,) in the purchase or redemption of the land tax, or
the discharge of any rent or incumbrances affecting the rent-
charge in respect of which such money shall have been paid,
or the manorial incidents for which the same shall have oeen
substituted, or affecting other hereditaments settled therewith
to the same or the like uses, trusts, or purposes or in the pur-
chase of other lands, to be conveyed, limited, and settled upon
the like uses, trusts, purposes, and in the same manner, as the
rentcharge for the redemption of which such money shall have
been paid stood settled, or in payment to any party becoming
absolutely entitled to such money ; and such money may be so
applied as aforesaid upon an order of the Court of Chancery
made on the petition of the party who would have been entitled
to the receipt of the rentcharge in respect of which such money
shall have been deposited ; and unnl the money can be so
applied it may, upon the like order, be invested by the said
Accountant G-eneral in the purchase of three per centum con-
solidated or three per centum reduced bank annuities, or in
government or real securities, and the dividends, interest, or
annual income thereof paid to the party who would for the
time being have been entitled to the rentcharge in case the
same had not been redeemed ; or otherwise such consideration
money may be paid, at the like option of the person for the
time being so entitled, to trustees acting imder the will, con-
veyance, or settlement under which such person having such
limited interest shall be entitled to or interested in such rent-
charge, or to such one or more of such trustees as the said
Commissioners may approve of and direct, or if tiiere are no
such trustees, then into the hands of trustees to be nominated
THB OOPYHOLD ACT, 1852. 535
under the hands and seal of the said Commissioners ; and the
money, when so paid to such trustees, shall be applied by the
said trustees, with the consent of the said Oommissioners, in
the manner hereinbefore directed concerning any money to be
paid for redemption or sale into the Bank of England in the
name and with the privity of the said Accountant General ;
and upon every vacancy in the office of anv trustee appointed
by the said Commissioners some other nt person shall be
appointed by them in like manner.
See In re Allfrtyy W. N. (1889) 40, as to the consideration money paid
to trustees passing under a residuary gift in a will.
40. When any consideration money so to be paid as last As to con-
hereinbefore mentioned shall not exceed the sum of twenty sideration
pounds for the redemption or sale of all the rentcharge which J^T^®^ under
shall be redeemable under this Act in any one manor, the
same shall be paid, if the said Commissioners shall so direct,
to the person for the time being entitled to the rentcharge,
for his own use and benefit ; or in case of coverture, infancy,
idiotcy, limacy, or other incapacity of the person for the time
being entitled, then such money shall be paid, for the use of
the person so entitled, to the husband, guardian, committee,
or trustee of such person.
41. In any commutation or enfranchisement to be hereafter Power to
effected under or by virtue of the said recited Acts it shall not commute or
be imperative to make the commutation fines or rentcharge, ^^ g^n^or
or enfranchisement rentcharge, variable with the prices of rentcharges.
grain, but the same or any of them may, at the option of the
parties effecting such commutation or enfranchisement, or at
the discretion of the Commissioners, as the case may require,
be fixed in money or be made so variable as aforesaid.
42. Any occupying tenant of any lands to be enfranchised Tenants may
under this Act who shall pay any rentcharge or interest which deduct rent-
may become payable under this Act shall be entitled to deduct <*ar^, &c.
the amoxmt thereof from the rent payable by him to his land- ^?ini^.
lord, and shall be allowed the same in accoimt with the said
landlord.
See also sect. 16 of the Copyhold Act, 1887.
43. A surrenderee by way of mortgage under a surrender Surrenderee
entered on the court-rolls in possession, or in the receipt of the by way of
rents and profits of land, shall be deemed a tenant within the ™°]^d^^'
meaning of this Act, entitled to obtain or join in obtaining and ^ tenant for
effecting enfranchisement, and redeeming a rentcharee, under certain pur-
this and the said recited Acts, by and with the approbation of poses.
the said Conunissioners ; and any money paid by any mort-
gagee for or in respect of the consideration or costs of enfran-
chisement or redemption of rentcharge under this and the said
536
APPENDIX XI.
Enfranchifle-
ment not to
affect pre-
vious kaaes
or demises.
Not to affect
commonable
rights in re-
Bpect of lands
enfranchised.
Enfranchise-
ment not to
affect rights
imder any
will, settle-
ment, &c.
Defective
tiUes of lords
and tenants.
recited Acts shall be added to the amount due to him as mort-
gagee, and the land shall not be redeemable without payment
of such money, with interest thereon.
44. Where land enfranchised under this or the said recited
Acts was immediately before such enfranchisement subject to
any subsisting lease or demise at will or for any greater inte-
rest, the freehold into which such estate is so converted shall
be the reversion immediately expectant upon such lease or
demise at will, and the rents and services reserved and made
payable upon such lease or demise shall be incident and an-
nexed to such reversion ; and the covenants or agreements,
whether expressed or implied, on the part of both the lessor
and lessee, shall run with the land and with reversion respec-
tively ; and such enfranchisement shall not prejudice or aftect
any right of distress, entry, or action accruing in respect of
such lease or demise.
See the Copyhold Act, 1887, sect. 41.
45. Nothing herein contained shall operate to deprive any
tenant of any commonable right to which he may be entitled
in respect of such lands, but such right shall continue attached
thereto, notwithstanding the same shall have become freehold.
46. No enfranchisement under this Act shall, except as
herein is mentioned, affect the rights or interests of any per-
son in, to, or out of the lands enfranchised under any will,
settlement, mortgage, or otherwise, but the rights of every
such person shall continue to attach upon the lands enfran-
chised, in the same way, as nearly as may be, as if the free-
hold had been comprised in and had been devised, conveyed,
charged, or otherwise disposed of by the will, settlement,
mortgage, or other instrument or disposition under which any
such person shall claim.
47. Provided always, that if any enfranchisement conside-
ration money shall be paid to any lord whose title shall there-
after prove to be bad or insufficient, the rightful owner of
the manor or his representatives shall be entitled to recover
against such lord or his representatives the amount or value
of such consideration money as money had and received to the
use of such rightful owner, and interest thereon at the rate of
five pounds per centum per annum from the time of such title
so proving to be bad or insufficient ; and that if any tenant or
person claiming to be tenant shall, after payment by him of
any enfranchisement consideration money, be evicted from
the lands enfranchised, by an adverse claimant, such tenant
or person shall be entitled to claim the repayment of such
consideration money against the lands enfranchised, and the
THB COPYHOLD ACT, 1862. 537
amount thereof shall be a charge upon the lands enfranchised,
and shall carry interest at the rate of four pounds per centum
per annum from the time of such eviction.
48. No enfranchisement under this Act shall extend to or Act not to
afiPect the estate or rights of any lord or tenant in or to any ©»tend to
mines, minerals, limestone, lime, clay, stone, gravel, pits, or ^J"^!^ a
quarries within or under the lands eiiiranchised, or within or ^qj ^o copy- '
under any other lands, or any rights of entry, rights of way holds for lives
and search, or other easements of any lord or tenant in, upon, where tezumts
through, over or under any lands, or any powers which in re- ha^^o^ *
spect of property in the soil miffht but for such enfranchise- ^newul
ment have been exercised, for the purpose of enabling the said
lord or tenant, their or his agents, workmen, or assigns, more
effectually to search for, win, and work any mines, minerals,
pits, or quarries, or to remove and carry away any minerals,
limestone, lime, stones, clay, gravel, or other substances had
or gotten therefrom, or the rights, franchises, royalties, or
privileges of any lord in respect of any fairs, markets, rights
of chase or warren, piscaries, or other rights of hunting, shoot-
ing, fishing, fowling, or otherwise taking game, fish, or fowl,
unless with the express consent in writing of such lord or
tenant ; and nothing in this Act shall be held or construed to
extend to any copyhold lands held for a life or lives or for
years, where the tenant thereof hath not a right of renewal.
A steward cannot, without special authority, consent on behalf of the
lord to include these reserved nghts in the en^nchisement : see sect. 33
of the Copyhold Act, 1887.
49. Copies of and extracts from every award under this Act Copies regis-
which shall be registered under this Act at the office of the *®*^ *J ™
Commissioners, purporting to be sealed or stamped with the ^^onerato"
seal of the Commissioners, shall respectively be received in x^q eyidence.
evidence without any further proof thereof; and a copy
entered under this Act on the court-rolls of every such award
shall be as available for the purposes of evidence as any entry
on the court-rolls, and a copy of or extract from any such
enrolled copy shall be as available for the purposes of evidence
as a copy of an entry on the court-roUs.
50. No agreement, valuation, schedule, award, or power Agreements,
of attorney under this Act shcdl be chargeable with stamp ^o. to be
dutv. exempt from
'' stamp duty.
See sect. 32 of the Copyhold Act, 1868, as to awards of enfranchise-
ment by the Board of Agriculture.
51. Any person obstructing or hindering any Commissioner, persoM ^^
assistant Commissioner, valuer, or umpire acting under the obstructing
powers granted by the said recited Acts or by this Act, being Commis-
convicted thereof before two justices of the peace, shall forfeit sooner, assist-
the sum of five pounds. ^^ comnus-
w**« « v/A x**« ^/vr*. e Bioner, valaer,
or umpire.
538 APPENDIX XI.
Ooortmction 52. In this Act^ unless where the context shows that the
of woo^da. words hereinafter mentioned are used in a different or more
restricted sense, they shall be understood in manner herein-
after mentioned ; that is to say, the word *^ lands " shall ex-
tend to and include messuages, tenements, and corporeal or
incorporeal hereditaments, subject to any manorial rights, or
any undivided part or share therein; the word 'Valuers"
shall apply to and include a single valuer, where authorised to
act alone, or any umpire to be appointed as herein mentioned,
and also the Commissioners or tne Commissioner or assistant
Commissioner proceeding upon or with any valuation under
this Act in cases where such single valuer, umpire. Commis-
sioner, or assistant Commissioner respectively shall act in
any such valuation ; the word " manor " shall extend to such
portion or portions of a manor as the said. Commissioners
shall by any order in writing under their hands and seal
direct to be considered as a manor for the purpose of effect-
ing any enfranchisement under this Act; the word *'lord"
shall extend to and include the lord or lords of any manor,
whether seised for life or in tail or in fee simple, and aU
ecclesiastical 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 selling
or disposing of the same ; and the word *^ steward " shall
extend to and include a deputy steward or derk acting as
such for the time being.
This Act to be 53. This Act shall be taken and construed as part of the
deemed part first-recited Act, and the Acts amending and explaining the
^^ ^tedAofc same ; and all the enactments therein contained as to enfran-
'^^ chisements effected under the provisions thereof shall be
deemed and taken to apply to enfranchisements under this
Act, and to the rights of all parties thereto, as if such enact-
ments were here again repeated, except so far as is herein-
before otherwise provided for ; and all enfranchisements
which may have taken place under such Acts or any of them,
and all matters and things incident thereto, shall be of the
same force, validity, and effect as if the provisions of this Act
had been contained in the said first-recited Act.
The redted Acts aie the Copyhold Acts of 1S41, 1848 and 1844.
Titles of Acts. 54. In citing or referring to the said recited Acts and this
Act, or any of them, in other Acts or legal instruments, it
shall be suiOOlcient to use the expression ''The Copyhold Acts,"
or "The Copyhold Act, 1841," ** The Copyhold Act, 1843,"
"The Copyhold Act, 1844," or "The Copyhold Act, 1852,"
as the case may be.
THE COPTHOLD ACT, 1852. 639
55. l^rovided always, that notlung herein contained shall Xot to impede
interfere with or prevent or impede the enfranchisement of ©nf»Dohiae-
any lands whatsoever which may be enfranchised irrespective ^ve oftihi?^"
of this Act, where parties competent to do so shall agree on Act or powers
such enfranchisement, or the exercise of any powers con- in other Acts
tained in any other Acts of Parliament. ^ Parlia-
ment.
SGHEDTJLES.
No. 1.
FOSX OF DSED OF £jKFRANOHIBSME]fT.
[Scaled hy met, 2 of the Copyhold Act, 1858. See the Copyhold Act,
1858, sect. 10, and the Copyhold Act, 1887, sect. 22, as to awards of
enfranchisement.]
No. 2.
CSBTIFIOA.TB of Chabox afPooting Lands oomprised in an enfranchisement.
[E^pealed by eeet, 2<^the Copyhold Act, 1858. See sect. 36 thereof.]
No. 8.
FOBX OF EsmOBSEiaENT OF TbAKBFEB of CsBTEnOATB.
[As to cases after October 1st, 1858, see the form given in the Copyhold
Act, 1858, sect. 37.]
(540 )
APPENDIX XII.
The Copyhold Act, 1858.
(21 & 22 Vict. o. 94.)
An Act to amend the Copyhold Acts. [2iid August, 1858.]
Commence- 1 . This Act shall come into operation on the first day of
ment of Act. October one thousand eight hundred and fifty-eight.
Bepeal of 2. The following Acts and sections and parts of sections of
^°Af^ h^*^ the Copyhold Acts are hereby repealed ; that is to say,
named ^^^ ^^® whole of the Act of the sixteenth and seventeenth of
Victoria, chapter fifty-seven, intituled an Act to explain
and amend the Copyhold Acts :
So much of the eleventh section of the Copyhold Act, 1841,
as follows after the words '* substituted in the place of
such lord, tenant, or other person" :
The whole of the second section of the Copyhold Act, 1 852 :
The whole of the eleventh section of the Copyhold Act,
1852 :
The whole of the twenty-seventh section of the Copyhold
Act, 1852(a):
All the provisions of the Copyhold Acts which authorise
commutations by schedule of apportionment, and also all
the provisions which authorise commutations by a sche-
dule to be prepared by the steward, and also all the. pro-
visions which authorise enfranchisement by schedule of
apportionment, and also all the provisions which authorise
the charging of enfranchisement or compensation moneys
or the expenses of commutations or enfranchisements
upon land, are hereby repealed.
(a) See the Statute Law Bevlaion Act, 1892.
Bepeal not to 3. This repeal shall not affect any commutations or enfran-
affectacts chisements or charges already effected, or any rights or
ted"& remedies attaching thereto, or any acts done in pursu^ince of
' ' • the Act or provisions hereby specifically repealed, or rights or
remedies vested by or resulting therefrom.
Acts not to 4. The Copyhold Acts shall not extend to any manors
^^^^ *?. belonging, either in possession or reversion, to any ecdesias-
THE COPYHOLD ACT, 1868. 54L
tical corporation, or to the Ecclesiastical Commissioners for manors, where
England, where the tenant hath not a right of renewal. tenant hw not
5. Whenever it shall appear to the Copyhold Commission- renewal.
er8(a) that an enfranchisement imder the Copyhold Acts is one Application of
which might have been effected imder the provisions of the Act oonsideration
of the fourteenth and fifteenth of her Majesty, chapter one moneys in
hundred and four, intituled an Act to facilitate the management °^®* where
and improvement of episcopal and capitular estates in England, ^^[tiTm/^ht
so long as that Act or any Act for continuing the same shall have been
be in force, the moneys or rent-charges which form the con- effected under
sideration of such enfranchisement shall be paid and applied 1^ & 15 Vict,
to the same account and in the same manner as if such ^' ^^'
enfranchisement had been efiPected under the said Act of the
fourteenth and fifteenth of her Majesty ; and all the provisions
of the said last-mentioned Act which affect the application of
enfranchisement moneys under that Act shall be applicable to
such enfranchisements as aforesaid made under the provisions
of the Copyhold Acts ; and the Church Estates Commissioners
and Ecclesiastical Commissioners shall respectively have the
same powers over such consideration moneys, or the interest
accruing thereon, or upon land, rent-charges, or securities
acquired in respect of such enfranchisements, and also over
or against any ecclesiastical corporation interested therein, as
such Commissioners respectively would have had if such en-
franchisement had been effected with the consent of the Church'
Estates Commissioners, and under the provisions of the said
Act of the fourteenth and fifteenth of her Majesty or any Act
continuing the same : but where any ecclesiastical corporation
within the meaning of the said last-mentioned Act, or the said
Ecclesiastical Commissioners have only a reversionary interest
in the manorial rights extinguished by enfranchisement, the
consideration for such enfranchisement shall be dealt with in
the manner directed by the thirty-ninth section of the Copy-
hold Act, 1852, until the time when the said reversionary
interest in the same manorial rights would, if the same had
not been extinguished, have come into possession, when the
said consideration, or any government securities in which it
may have been invested, shall, upon petition to the Court of
Chancery, be paid or transferred to the said Church Estates
Commissioners, who shall be considered the parties become
absolutely entitled to such money, to be dealt with as if they
had come into possession thereof in consequence of an enfran-
chisement effected under the said Act of the fourteenth and
fifteenth of her Majesty.
6. Notwithstanding the first section of the Copyhold Act, Tenant or
1852, it shall be lawful, from and after the passing of this lord of certain
(a) These Commissioners are now represented by the Board of Agri-
onlture : 52 & 63 Vict. o. 30.
642 APPENDIX XII.
copyhold land Act, for any tenant or lord of any copyhold lands to which
may compel the last admittance shall have taken place before the first of
«*>*™""5hi«e- July one thousand eight hundred and fifty-three, or any free-
°^^ hold or customary freehold lands in respect of which the last
heriot shall have become due or payable before the first of
July, one thousand eight hundred and fifty-three, to require
and compel enfranchisement of the said lands in the manner
herein and in the said Act mentioned : provided always, that
no such tenant shall be entitled to require such enfranchise-
ment until after payment or tender (in the case of copyhold
lands) of such a fine and of the value of such a heriot, and
in the case of freehold and customary freehold lands of the
value of such a heriot as would become due or payable in the
event of admittance or [death] enrolment on alienation subse-
quent to the first of July, one thousand eight hundred and
fifty-three, and also in the case both of copyhold and of free-
hold or customary freehold lands, of two-thirds of such a sum
as the steward would have been entitled to for fees in respect
of such admittance or [heriot] enrolment.
The words " enrolment on alienation '* were suhstitnted for the word
« death ;" and the final word <' enrolment " for the Wfxrd " heriot," by
sect. ^ of the Copyhold Act, 1887.
Lordor tenant 7. [^Repealed by the Copt/hold Act, 1887, sect. 51 ; see sect. 7
ma^ compel thereof S\
extingaisn-
ment of daim 8. When any lord or tenant shall, under the provisions of
toheriote. ^3 Copyhold Act, 1852, or of this Act, require the enfran-
Mode of chisement of any land held of a manor, he shall g^ve notice in
iB^K) writing (the lord or his steward to the tenant, or the tenant
enfoanoh^- ^ ^^ ^^^ ^^ ^ steward,) of his desire that such land shall
ments. be enfranchised ; and the consideration to be paid to the lord
for such enfranchisement, and also the sum to be paid to the
lord in respect of such fine or heriot as mentioned in the last
preceding clause, shall, unless the parties agree about the
same, be ascertained under the directions of the Copyhold
Commissioners, and upon a valuation to be made in the manner
following : that is to say,
Where the manorial rights to be compensated shaU 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 shall not be rated to the poor's rate, at a
greater amount than the net annual value of [twenty]
thirty pounds, then the valuation shall be made by a
valuer to be nominated by the justices at a petty sessions
holden for the division or place in which the manor or the
chief part thereof is situate; provided that no justice,
being lord, either in whole or in part, of such manor,
shall take any part in nominating such valuer ; subject.
THE C50PYHOLD ACT, 1858. 648
however, to these provisoes : first, that if the parties agree
to recommend to the Commissioners any person to be the
valuer, such person shall be nominated oj the Commis-
sioners ; and second, that either party may, upon paying
the charges of his own valuer, have the valuation made
as next hereinafter provided.
But when the manorial rights to be compensated do not
consist only of rents and heriots and such hcenoes as afore-
said, or when the land to be enfranchised is rated to the
poor's rate at a greater amount than the net annual value
of [twenty] thirty pounds, or where the valuation to be
maae is of the sum to be paid to the lord in respect of such
fine or heriot as mentioned in the last preceding clause,
then the valuation shall, unless the parties agree to refer
it to one valuer, be made by two valuers, one to be ap-
pointed by the lord, and the other by the tenant ; and
such two valuers, before they proceed, shall appoint an
umpire, to whom any points in dispute between them shall
be referred ; and in case the valuer or valuers or umpire,
as the case may be, shall not make a decision and deliver
the particulars thereof in writing to the lord or the
steward and to the tenant, and to the Copyhold Commis-
sioners, within forty-two days after the appointment of
such valuers, or reference of the matter to the umpire, as
the case may be, then the Commissioners shall fix the
consideration to be paid or rendered to the lord ; and in
any case where, after notice to the lord or to the steward
or to the tenant so to do, either party shall neglect or
refuse, for twenty-eight days, to appoint his valuer, the
Commissioners shall appoint a valuer for him as soon as
may be after the expiration of such twenty-eight days ;
and in anv case where any valuers shall, for the space of
fourteen days after the appointment, be unable to agree
in the appointment of an umpire, the Commissioners imall
appoint an umpire.
By sect. 10 of the Copyhold Act, 1887, the word *' thirty" was substi-
tated for the word ** twenty " in the above section, and certain farther
modifications were made.
See also sect. 3 of the Copyhold Act, 1887, as to the ascertainment of
the compensation.
9. The Commissioners may, by an order under seal, extend Extension of
the time within which this Act directs that any valuer be time for
appointed, or any act to be done by such valuer be per- appointments,
formed.
10. After the valuation has been made, or upon the receipt Award of
of the agreement of the parties, the Commissioners, having enfranohise-
made such inquiries concerning the circumstances of the case °^^^*
544 APPENDIX XII.
as to them shall seem fit, and haying duly considered the
applications made to them bj the parties, mdy frame- an award
of enfranchisement in the terms of -the valuation, and in such
form as they -shall provide, and may confirm the same ; and
such confirmed award shall have the same force and validity
for all purposes of enfranchisement or otherwise as a deed of
enfranchisement now has under the provisions of the Copy-
hold Acts, or would have had under any provision of the
Copyhold Acts, which is by this Act repealed ; and for edl
purposes of declaring the amount, nature, and particulars of
the compiBusation, and for attaching thereto the remedies pro-
vided by the Copyhold Acts, the said confirmed award shall
have the j»ame f oixse and validity as an award made by valuers
or an umpire under the provisions of the Copyhold Acts : pro-
vided nevertheless, that nothing herein contained shall atfect
the right of the steward for the time being of any manor to
receive such sum of money by way. of compensation or other-
,wise as he would have been entitled to if such enfranchisement
had been effected by a deed of enfranchisement imder the pro-
visions of the Copyhold Acts or any of them : provided aLso,
that the Commissioners shall, fourteen clear days before con-
firmation of any such award, serve a copy of the same in the
form in which it is proposed to be confirmed upon the steward
of the manor of which the lands to be enfranchised are held.
See seot. 22 of the Copyhold Act, 1887, as to seryingoopy of the award
on the steward.
Com rent- 11. Whenever a rentcharge hereafter granted under the
charges to be provisions of the Copyhold Acts shall be a rentcharge varying
calculated as ^^^.j^ ^^q price of com, such rentcharge shall not be calculated
ohanres. " ^^ *^® manner now directed by the Copyhold Acts, but shall
be calculated upon the same averages and variable in the same
manner as a titne commutation rentcharge ; but this amend-
. ment shall apply only to corn rentcharges hereafter to be
imposed, and not to any already existing under the authority
of the Copyhold Acts, but these last-named com rentcharges
shall retain their former character and. incidents.
See seot. 14 of the Copyhold Act, 1887.
Receipts for 12. The Commissioners shall not confirm any award of en-
consideration franchisement where the consideration is a gross sum of money
money, &c- *<> immediately payable, or land, until the receipt of the person
pro uc . gjj^j^g^ ^ receive the consideration or compensation money
has been produced to them, or the conveyance of the land has
beon confirmed by them.
In case of 1 3. If the lord refuse to receive the enfranchisement money
refusal by {^ shall be dealt with as is provided in cases where the lord is
^^^' only entitled for a limited estate.
THB COPYHOLD ACT, 1858. 545
14. After enfranchisement, whether under the voluntary or Owners of
compulsory proceedings of the Copyhold Acts, the owner enfranchised
of the lands so enfranchised shall, notwithstanding any re- Jj-nds may use
serration of mines and minerals in the said Acts or in any pu^^^g^^con-
instrument of enfranchisement contained, have full power and nected with
right to disturb or remove the soil so far as may be necessary the enjoyment
OP convenient for the purposes of making roads or .drains or o* *^® surface,
erecting buildings or obtaining water upon the said lands :
provided always, that this shaU not prejudice the rights to
any mines or minerals, or to work and carry away the same,
which were reserved by section forty-eight of the Copyhold
Act, 1852.
15. In the case of a corporation or other lord of any manor Enfranohise-
holden upon any charitable trust within the provisions of the ^^^ money
Charitable Trust Act, 1853, or Charitable Trust Amendment ^YffidS*^^
Act, 1855, not authorised to make an absolute sale otherwise trustees of
than under the provisions of the said last-mentioned Acts or charitable
of the Copyhold Acts, the consideration money to be paid for funds.
the redemption or sale of any rentcharge, or as compensation
for any eDfranchisement, may, at the option of the lord, be
paid into the hands of the official trustees of charitable funds
acting under the said Charitable Trusts Acts, in trust for the
charity to which the manor shall belong ; and the principal
moneys shall be applied by the trustees, under the order of
the Charity Commissioners for England and Wales, for the
purposes to which the said money if paid into the Bank of
England in the name of the Accountant General of the Court
of Chancery would be applicable tmder the Copyhold Acts,
and in the meantime shall be invested, and the dividends of
such investments shall be applied, according to the provisions
of the said Acts relating to charitable funds paid to such
official trustees.
The Charitable Trusts Acts may now be cited as the Charitable Trusts .
Acts, 1853 to 1891.
16. Any consideration or compensation money to be paid to Enfranohise-
the use of a corporation, lord of a manor, other than of a ment money
manor holden for charitable purposes within the meaning of ^^^ *^® ^ ^^
the Charitable Trust Act, 1853, and Charitable Trust Amend- %^^^^^^t'
ment Act, 1855, may, at the option of such lord, be paid into the option of
the hands of trustees, to be nominated -by the Commissioners the lords of
by order under seal, in the same manner as in other cases the manor, be
already provided for in the Copyhold Acts, and the money P^^^ ^^^
shall be applied by the trustees, with the consent of the Com- trustees,
missioners, to the purposes to which consideration or enfran-
chisement money paid into the Bank of England in the name of
the Accountant General is directed by the Copyhold Acts to be
applied ; and upon every vacancy in the office of such trustee,
E. N N
1
546
APPENDIX XII.
Enfranchise-
ment monej
for the use of
any spiritual
person may be
paid to the
Governors of
Queen Anne's
bounty.
Gommenoe-
ment of
enfranchise-
ment.
Notice to be
given to the
Ecclesiastical
Commis-
sioners in
cases wherein
they are
interested.
or in case any such trustee slioTiLd be desirous of resiguine, or
should become incapable of acting some other person shall be
appointed by the Commissioners in like manner.
See note to preceding section.
17. Any compensation or consideration money paid for the
use of any spiritual person in respect of his benefice or cure
may, at the option of the lord, be paid to the *' GK)yemor8 of
Queen Anne's Bounty for the augmentation of the mainten-
ance of the poor clergy, " and when so paid shall be applied
and disposed of by the said Governors as money in their hands
appropriated for the augmentation of such benefice or cure
should by law, and under the rules of the said Gh)vemors, be
applied and disposed of ; and the receipt of the treasurer of
the said Gbvemors shall be a sufficient discharge for such
money, and the person paying the same to such treasurer
shall not be concerned to see to the application or disposal
thereof.
18. The commencement of every commutation or enfran-
chisement, and of any rentcharge, may be fixed by the
memorandum of confirmation of the instrument of commuta-
tion or enfranchisement, or, in default of being so fixed, it
shall take place on the day of confirmation ; but the CJommis-
sioners shall have power to fix the day whence the half-yearly
payments of the rentcharge shall commence to be calculated,
at any period not more than six months posterior to the day
fixed for the commencement of the commutation or enfran-
chisement ; and the portion of rentcharge which shall accrue
between the day of the commencement of the commutation or
enfranchisement and the day fixed by the Commissioners as
the day whence the half-yearly payments of the rentcharge
shall commence to be calculated snail be paid and recoverable
in like manner as any after-accruing hali-yearly sum is pay-
able or recoverable.
See sect. 16 of the Copyhold Act, 1887.
19. Where any land proposed to be enfranchised under this
Act shall be held of a manor belonging either in possession or
reversion to an ecclesiastical corporation within the meaning
of the Act of the fourteenth and fifteenth years of her
Majesty's reign, chapter one hundred and four, the Ecclesias-
tical Commissioners for England shall have notice of suoh
proceedings, and shall have the same power of expressing
assent to or dissent from such proceedings as is by this Act
directed with respect to persons entitled to the next estate of
inheritance in reversion or remainder, and the provisions of
the Copyhold Acts respecting such notices, and all proceedings
thereon (except as otherwise by this Act is provided), shall be.
applicable to such cases.
THE COPYHOLD ACT, 1858. 547
20. Where notice or other writing is required to be given Notices, how
to or served on any designated person or party, it may be to be givea.
given either by sending it by the post in a registered letter to
or by leaving it at the office or usual place of abode of such
person, and all notices required to be given by the Commis-
sioners or any valuer (the mode of giving which is not par-
ticularly directed) may be in the name either of the person
giving the notice or of any person authorised by the Commis-
sioners to give notices, and all notices so given shall be
deemed sufficient notices to all persons concerning all matters
and things to which such respective notices may relate.
See Beet. 36 of the Copyhold Act, 1887.
21. Whenever by the Copyhold Acts power is given or an Considera-
obligation attaches to any person to pay money as considera- tion money,
tion or compensation for commutation or enfranchisement, it ^* ™^ ^
shall be lawful for such person, with the consent of the la^ "^
Commissioners, to charge upon the land commuted or enfran-
chised the sum of money paid.
See Beet. 23 of the Ck)pyhold Act, 1887.
22. Whenever land is conveyed as consideration or compen- Value of
sation for commutation or enfranchisement, and the person la^^d given as
conveying the same was absolute owner of the land so con- e^»»ic^»o-
veyed, it shall be lawful for such person, with the consent of gideration
the Commissioners, to charge upon the land commuted or maybe
enfranchised such reasonable sum as in the judgment of the charged.
Commissioners may be equivalent in value to the land so
conveyed.
23. Where power is by the Copyhold Acts given to the lord Power to
to purchase the tenant's interest in land, he shall have the ^^^ds to
same right to charge the land purchased, and also the manor ^Jf ^® _®
and any land settled therewith to the same uses as a tenant ohaseS?''
has under this Act to charge enfranchisement moneys.
24. Any expenses incurred in proceedings under the Copy- Expenses
hold Acts may be charged upon the manor or upon the land m&7 ^
commuted or enfranchised, or upon both, according as the c^arff^d-
obligations to pay may attach, or expenses payable by the
lord may be paid out of the compensation or consideration
money, or be charged upon the rentcharge or other con-
sideration or compensation for commutation or enfranchise-
ment.
See also sect. 24 of the Copyhold Act, 1887, as to charging the lord's
expenses. «
25. Any charge under this Act in respect of consideration How Con-
or of compensation money, or of purchase-money, or of the sideration
yalue of land conveyed, may, when the parties so agree, and ™o^®y"> *<^-
N N 2 charged.
S4;S
APP£I9DIX XII.
tlie CommiBsioners approve, be made for a principal sum and
interest, or for a series of periodical payments, which, at the
termination thereof at the period specified shall leave the
manor or land discharged.
See seot. 23 of the Copyhold Act, 1887.
Certain ex- 26. Whenever by the provisions of the Copyhold Acts any
pena^may be Iqj^ qj. tenant is authorised to raise money upon charge, or to
con^^i^on P^^chase or convey any land, and to charge the principal or
money. the purchase-money or the value upon a manor or land, then
the expenses incurred about the raising of such money upon
charge, or incurred about the purchase, or purchase and
conveyance, shall (but as distinct from the general expenses
of commutation or enfranchisement) be considered for all pur-
poses or effects of charging as part of the principal purchase-
money or value to be charged.
Charges for
expenses not
to exceed
fifteen years.
Commis-
sioners may in
certain cases
grant cer-
tificate of
charge for
expenses.
Certificate of
charge.
27. All other charges in respect of expenses of proceedings
under the Copyhold Acts (except the expenses of a purchase
by a lord) shall be for such period as the parties may agree
and the Commissioners may approve, not exceeding fifteen
years, and at such interest as stated in the certificate of
charge.
See sect. 23 of the Copyhold Act, 1887.
28. If by reason of disputes as to title it shall appear to the
Commissioners to be uncertain upon what person the order to
pay costs or expenses should be made, the Commissioners may,
if they shall so see fit, grant to the person 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
such costs or expenses were incurred, which shall operate in
all respects as other certificates of charge under this Act.
29. Every charge under this Act shall be made by a certifi-
cate under seal of the Commissioners, and countersigned by
the person at whose instance the charge is made, to be called
a certificate of charge ; and if such charge shall be a series of
periodical payments which, at the termination thereof at a
period specified, shall leave the manor or land discharged,
such series shall be specified in the certificate; but if the
charge shall be a principal sum bearing interest, and repay-
able at or before a certain future date, or after a certain
notice, then such certificate shall specify the whole amount of
principal money to be charged, and shall contain a proviso
declaring that such certificate shall be void on payment of the
amount thereby secured, with any arrears of interest due
thereon, at a time therein appointed, or at the expiration of
an ascertained notice ; and such certificate shall state whether
THE OpFTHOLD ACT, 1858. 549
the charge was made in respect of costs or expenses, ox in
respect of consideration or compensation money, and may
specify any place, to be agreed upon between the parties, as
the place of payment of the principal money and interest
charged by such certificate ; ana the manor or land charged
thereby may be described by reference to the enfranchisement
Proceedings under the Oopyhold Acts, or otherwise, as the
lommissioners may see fit.
See sect. 28 of the Copyhold Act, 1887.
30. Every certificate and the charge thereby made shall be Oertificate
transferable by endorsement on such certificate. tranaferable.
'31. Whenever a lord of limited interest shall be entitled to Lord's charge
a certificate of charge in respect of enfranchisement money tobeappur-
left chargeable upon the land enfranchised, the charge shall tenant to the
remain appendant and appurtenant to the manor (but not so ™*'^®''
as to be incapable of being severed therefrom, or to be affected
by the extinction thereof) ; and the certificate of charge shall
state that the lord to whom such certificate is issued has only
a limited interest in such charge, or it may purport to be
issued to the lord for the time being of the manor ; and either
of such statements in such certificate shall be notice to all
persons of the limited interest in such charge which may pass
by transfer of such certificate.
32. Every award of enfranchisement, certificate of charge Stamp duty.
and transfer thereof, issued or made imder this Act, shall be
chargeable with the like stamp duties as are chargeable in
respect of deeds of enfranchisement, mortgages, and transfers
of mortgages.
33. Any charge under this Act made in consideration of Priority of
the value of land conveyed as consideration, or of consideration charge,
or compensation money, or of purchase-money, or of the ex-
penses of purchase and conveyances, shall be a first charge on
such manor or land, and shall have priority over all mortgages,
charges, and incumbrances whatsoever affecting such manor
or land, (except tithe commutation rentcharges, and any
charges or rentcharges which may have been or shall be
charged upon the same land for the drainage thereof, by
virtue of any of the statutes in that behalf,) notwithstanding
the actual priority in point of date or anterior title of such
mortgages, charges, and incumbrances ; but any moneys
already invested or previously secured or charged thereon
may be continued on the security of the same, notwithstand-
ing the imposition of the said charge imder this Act.
See also sect. 23 of the Copyhold Act, 1887.
550
APPENDIX XII.
Charge not to
merge.
Sums charged,
how to be
recoyered.
Fonnof
certificate of
charge.
34. Any such, certificate of charge may be taken by any
person, although he may be the lord or tenant or owner of
any manor or land charged thereby ; and the same shall not
merge in the freehold, unless the owner of such charge shall
by endorsement upon the certificate of charge or otherwise,
declare in writing that it is his will that such charge shall
merge and cease.
35. The owner for the time being of a certificate of charge
shall, in respect of any payment in the nature of interest or
instalment that may become due under the certificate, have
the same remedies and be subject to the same conditions in
the recovery thereof as are by the Copyhold Acts provided in
respect of rentcharges ; and for a further and additional
remedy in that behalf, and in respect of any payment in the
nature of interest, or of a periodical payment, or of an instal-
ment, or of a gross principal sum that may be secured by the
certificate, the manor or land shall from the date of the cer-
tificate stand charged with the respective sums mentioned in
such certificate to be payable, and until such payment the
owner for the time being of the certificate shall be deemed to
stand seised of the manor or land as a mortgagee in fee
thereof ; and it shall be lawful for the person so seised from
time to time to adopt such means and proceedings as a mort-
gagee in fee of freehold land is entitled to, for the enforcing
payment of principal sums or interest, with the like right
to obtain payment of all attendant and incident costs and
expenses.
See sects. 23 and 24 of the Copyhold Act, 1887.
36. A certificate of charge may be in the form following : —
"We, the Copyhold Commissioners, do hereby certify, that
the land mentioned in the schedule to this certificate is charged
with the payment to A. B., his executors, administrators, or
assigns [^or, * to the lord of the manor of for the time
being,' as ike case may he~\j of the following series of perio-
dical payments ; that is to say, the sum of £ , payable
on the day of , a.d. ; the further sum
of £ payable on the day of , a.d. ,
&c. [oTy * with the principal sum of £ , with interest
thereon, after the rate of per centum per annimi, the
principal to be repayable in manner following; that is to say,'
state the terms'] ; and we do further certify that this certificate
of charge was made in respect of consideration money [or in
respect of expenses] ; and further, that after payment of the
series of periodical payments above mentioned [or after pay-
ment of the principal money hereby charged, and all arrears
of interest due thereon], this certificate shall be void. In
THE COPYHOLD ACT, 1858. 551
witness whereof we have hereunto set our hands and the seal of
the said Oommissioners, this day of , a.d. 18 — .
[The Schedule.']
" E. P.
" G. H.»
37. A transfer of a certificate of charge may be in the form Form of
following : — transfer of
**I A. B. of , hereby transfer the within certificate ^'^cate.
of charge to C. D. of — — .
" Dated this day of , a.d. .
A. B."
38. When land is held in undivided shares the person for Owner of
the time being in receipt of at least two-thirds of the value of two-thirds in
the rents and profits of such land shall be the " tenant " of '^divided
such land for all the purposes of the Copyhold Acts. ««taaan?''
39. It shall be lawful for any lord or tenant of a manor, or Agent may be
any other person interested in any proceedings under this Act, appointed by
by a power of attorney given in writing under his hand, or, P^^®' of
in the case of a corporation aggregate, under the common seal ***^™®y'
of such corporation, from time to time to appoint an agent to
act for him in carrying into execution the provisions of this
Act ; and all things which by this Act are directed or autho-
rized to be done by or in relation to any person may be fully
done by or in relation to the agent so duly authorised of such
person ; and every such agent shaU have full power, in the
name and on behalf of his principal, to concur in and execute
any agreement or application or other document arising out
of the execution of this Act ; and every person shall be bound
by the acts of any such agent, according to the authority com-
mitted to him, as fully as if the principal of such agent had
so acted ; and the power of attorney under which the agent
shall have acted, or a copy thereof authenticated by the sig-
nature of two credible witnesses, shaU be sent to the o£Q.ce of
the Commissioners ; and any such power of attorney may be
in the form following : —
" Manor of , in the county of .
"I A. B. of, &c., do hereby appoint C. D. of, &c., to be
my lawful attorney, to act for me in all respects as if I myself
were present and acting in the execution of the Copyhold Act,
1858.
" Dated this day of , one thousand eight
hundred and .
" (Signed) A.B."
See sect. 33 of the Copyhold Act, 1887, as to the steward representing
the lord until notice to tne contrary.
40. If any person, having made such an appointment as last ^f power of
aforesaid, shall deliver notice in writing or under a common attorney.
552
APPENDIX XII.
seal (as the case may require) of the revocation thereof to. the
Commissioners, no act which shall, be done by the person so
appointed, after the delivery of such notice, without a fresh
appointment, shall bind the principal.
Arbitration 41. In any case in which the Oommissioners of Woods, or
m case of either of them, on behalf of her Majesty in right of her Crown,
to tSmso** ^' *^® Chancellor and Council of the Duchy of Lancaster, on
enfranchiBe- behalf of her Majesty in right of her said Duchy, shall at any
ment in crown time hereafter have proceeded, in exercise of the powers vested
manors. in them, to ne^tiate the terms for the enfranchisement of any
hereditaments held of any manor vested in her Majesty in right
of her Crown or of her Duchy of Lancaster, either in posses-
sion, or in remainder expectant on any estate less than an
estate of inheritance, and either solely or in coparcenary with
i any subject or subjects, and a difference of opinion shall arise
between the said Commissioners or either of them, or the said
Chancellor and Council, on the one hand, and the tenant of
the said hereditaments on the other hand, touching the amount
of the consideration money to be paid by the tenant to the
said Commissioners or to the Beceiver General of the Duchy
of Lancaster for such enfranchisement, it shall be lawful for
the said Conmiissioners or either of them, or for the said
Chancellor and Council, if they or he respectively shall so think
fit, on the request of the tenant,, and upon an agreement for
the enfranchisement being entered into by them or bim with
such tenant, to refer it to the Copyhold Commissioners to
appoint, as they are hereby authorised to do, some practical
land surveyor to determine the amount of the consideration
money to be paid to the said Commissioners or to the said
Beceiver General of the Duchy of Lancaster, for such- enfran-
chisement, and the award of such land surveyor shall be final
and conclusive, and shaU not be subject to appeal or revision ;
and the costs and expenses of and incident to any reference to
the Copyhold Commissioners, to be made.as hereinbefore pro-
vided, shall be treated as costs and expenses incurred in the
case of a compulsory enfranchisement at the instance of a
tenant.
Provision as
to enfran-
chisements
in manors
belonging to
the crown in
remainder,
&o.
Provision as
to payment of
compensation
for such
42. Any manor vested in her Majesty in right of her Crown
in remainder or reversion expectant on an estate of inheritance,
and any hereditaments held of such manor, may, with the
consent in writing from time to time of the Commissioners of
Woods, or any one of them, be dealt with under the Copyhold
Acts.
43. In every case of an enfranchisement of land held of
any manor so vested in her Majesty in remainder or reversion
expectant on an estate of inheritance, where the compensation
under the provisions of the Copyhold Acts shall be a gross
' «
THB COPYHOLD ACT, 1858. $ 5dS
sum of money, the S£Uiie BhaH be paid to such two persons as enfranchise-
trustees as shall be from time to time nominated for the pur- i^^^^ts.
pose by the Commissioners of Woods, or any one of them, and
by the person who shall for the time being be entitled to the
receipt of the rents and profits of the manor, one of such trus-
tees being from time to time nominated by the Commissioners
or one of them, and the other of such trustees being from time
to time nominated by the person so entitled for the time being :
provided always, that in any case in which the Commissioners,
or one of them, and the person for the time being so entitled,
shall not upon the occasion of any enfranchisement agree that
the compensation, if payable in a gross sum of money, shall
be paid to trustees, the same shall with all convenient speed
be paid into the Bank of England in the name and with the
privity of the Accountant General of the Court of Chancery,
to be placed to his account there ex parte the Queen's most •
excellent Majesty and the person so for the time being entitled,
and when so paid in the compensation shaU remain to such
account as aforesaid until, by order of the court, to be made
in a summary way upon petition, after notice to the Commis-
sioners of Woods, by the person who may be entitled to the
rents and profits of the manor, it shall be applied in manner
by this Act provided.
44. The compensation money paid for any such enfranchise- Applioationof
ment shall be applied by any trustees to be from time to time such enfrau-
80 nominated, or oy direction of the Court of Chancery, if the ol"«G"ieiit
same shall have been paid into the Bank of England to the ^^^^'
credit of the Accountant General of the Court, in the purchase
or redemption of land tax afPecting the manor or any other
land settled to the like uses as the manor, or in the purchase
of land of fee-simple tenure, and convenient to be held
with the settled estates ; and until such application of the
compensation money, it may, by any such trustees, or by the
Accountant General of the Court of Chancery, under order of
the Court, to be made upon application thereto, after notice
to the Commissioners of Woods, be from time to time in-
vested, in the names or name of such trustees, or of the
Accountant General, in the purchase of or upon government
or real securities ; and in the meantime and until such securi-
ties be sold or realised by the trustees, or pursuant to any
order of the Court for either of the purposes aforesaid, the
income thereof shall be paid by the trustees or by the Ac-
countant General, under order of the Court, to the person who
for the time being may be entitled to the rents and profits of
the manor.
45. Any land to be purchased with any compensation money Land to be
to be paid or any rentcharge to be granted or awarded as the purchased
554
APP£in)ix xn.
with enfraxL-
bhifiement
money to be
settled to
same uses as
manor may
stand limited
to.
As to execu-
tion of enfran-
chisement
deed.
Becordof
such enfran-
chisements to
be preserved
in office of
land revenue
records.
consideration for any sucli enfranohisement shall be settled to
such, uses, upon such, trusts, and subject to such, powers and
provisions as will most nearly correspond with the uses, trusts,
powers, and provisions then affecting the manor in which such,
enfranchisement shall be made, and all such uses, trusts,
powers, and provisions shall be valid and have full effect,
any law to the contrary notwithstanding.
46. Upon payment of the compensation money as by this
Act provided, in any case in which such compensation is made
by payment of a gross sum of money, or previously to or con-
temporaneously with the execution of a deed of grant or of
an award by the Copyhold Commissioners of a rentcharge, in
any case in which the compensation for an enfranchisement shall
be made by way of rentcharge, the Commissioners of Woods,
or any one of them, may concur with the person for the time
being entitled to the rents and profits of the manor in execut-
ing a deed of enfranchisement to the copyholder of the land
to be enfranchised, which shaU state in what manner the en-
franchisement money, if any, has been applied ; and such
deed of enfranchisement shall, when a memorial thereof is
enrolled as by this Act provided, be effectual to vest in the
copyholder all the estate, right, and interest of the Queen's
Majesty, in right of her (>own, and of aU other persons inte-
rested therein under the settlement of the manor in the land
enfranchised, either absolutely or subject to such reservations
as may be agreed upon ; but nothing contained in this Act
with reference to enfranchisements by awards of the Copyhold
Commissioners shall apply to manors in which her Majesty
may have any estate or interest in possession, reversion, or
remainder.
47. The Keeper of land revenue Becords and Enrolments
shall, for the purpose of preserving a record of such enfran-
chisements as last aforesaid, from time to time provide a book
or books, in which shall be entered a memorial of every deed
of enfranchisement of land held of any manor, and of every
award or grant of any rentcharge, and of every deed of con-
veyance Tmich shall be executed upon the purchase of land
with moneys arising from the enfranchisement of lands within
any such manor (such last-mentioned memorial being in every
case accompanied by a plan of the land purchased), and every
such memorial shall be under the hand of one of the parties
to the deed of enfranchisement or conveyance, award, or
grant ; and no such deed, award, or grant shall have effect
imtil there be written thereon a certificate signed by the
keeper of land revenue records and enrolments, mat a memo-
rial thereof hath been lodged at the office of land revenue
records and enrolments ; and in the absence of evidence to the
contrary of the fact stated therein, such certificate shall be
THB COPYHOLD ACT, 1858. 656
admissible in evidence in any court of justice or before any
person now or hereafter having by law or by consent of
parties authority to hear, receive, or examine evidence, .with-
out proof of the signature thereto, or of the fact that the
person signing or purporting to sign the same is the keeper of
land revenue records and enrolments for the time being ; and
a copy of the enrolment of the memorial, certified in the
manner provided by an Act passed in the sixteenth year of
the reign of her present Majesty, chapter sixty-two, section
eight, shall be receivable as evidence of the deed or facts
referred to in such memorial.
48. Every trustee so nominated by the Commissioners of The Oommis-
Woods, or one of them, shall be absolutely indemnified by sionera of
the said Commissioners for the time being out of the rents -^^^^^
and profits of the possessions and land revenues of the Crown, ^g^e ilr
of and from all such costs, charges, damages, and expenses the Grown,
(if any) as he may in anywise whatsoever incur or be put to
in consequence of having been so nominated, and which he
may not be able to obtain repayment of out of the trust
moneys.
49. The Treasury may direct what reasonable fees shall be The Treasnrj
from time to time paid in respect of the revision and enrol- to direct what
ment, as by this Act provided, of any such deed of enfran- ^®^ ^^^ ^
chisement or conveyance of any land to be so purchased, and ©nroixnent of
such fees shall be deemed to be part of the expenses of the memorials,
enfranchisement or purchase, ^s the case may be, and shall &e.
be paid or be recoverable accordingly.
50. Any manor vested in her Majesty in right of her Crown Provimon as
in possession, remainder or reversion, in joint tenancy or co- *^ ™^°™
parcenary with any subject, may, so far as regards the rights t^ancv^w^
and interests of such subject ana of the tenant of such manor, the on^.
be dealt with under the Copyhold Acts, and the provision of ,
this Act in regard to enfranchisements in manors vested in
her Majesty in right of her Crown in remainder or reversion
expectant on an estate of inheritance, shall apply to manors
so vested in her Majesty in joint tenancy or coparcenary with
any subject, so far as respects the share or interest in any
such manor to which her Majesty may be so entitled.
51. In the construction of this Act the words '* ecclesiastical '^Ecolesias-
corporation " shall not be taken to extend to or indude the ^<^ corpora-
cathedral or house of Christ Church, Oxford. *i®f '' ^°* ^
' extend to
See the UniversitieB and College Estates Act, 1858, s. 31, as to Christ Christ
Church heing deemed a college of Oxford University. Church, Ox-
52. This Act shall be taken and construed as part of the *
Copyhold Acts, and may be cited either generally under the f^^^f ^^
. term " The Copyhold Acts," or specifically as *' The Copyhold Spyhold
Act, 1858." Acta.
( 556 )
APPENDIX XIII.
Notice to be
g^ven by the
steward to the
tenant.
All may be
admitted by
attorney.
The Copyhold Act, 1887.
(50 & 51 Vict. o. 73.)
An Act to amend the Copyhold ActSy and for the enfranchise-
ment of copyhold and customary lands,
[16th September, 1887.]
Whebeas it is expedient to make further provision for the
enfranchisement of lands of copyhold and customary tenure,
and of lands subject to certain customary and other incidents
and rights : —
Be it therefore enacted, &c.
1 . On the admittance or enrolment of any tenant after the
thirty-first day of December one thousand eight hundred and
eighty-seven, the steward of the manor shall be bound, with-
out 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 freehold,
you are entitled to enfranchise 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 Land Oommissioners (a),
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 shall not be
entitled to any fee for that admission or enrolment.
(a) The Land Commiflsioners are now represented by the Board of
Agnoulture : 62 & 53 Viot. c. 30.
2. Every person entitled to admission may hereafter be ad-
mitted by himself or by his attorney duly appointed, whether
orally or in writing.
k
THE gOpyhold act, 1887. 557
3. Any lord and tenant may at any time agree in writing on Power to
the amount of compensation for enfranchisement^ or may agree on
appoint in writing a valuer or valuers to ascertain such com- compensation
Sensation, and the sum so agreed upon or ascertained shall be ^j^^^
eemed to be the compensation for enfranchisement lawfully
ascertained.
4. On any enfranchisement after the passing of this Act If>rd to retain
the lord of the manor shall continue to be entiUed in case of ^ ^^^ ^
escheat for want of heirs to the same right and interest in the esoheat.
land as he would have had if it had not been enfranchised.
5. In making valuations for compensation payable to the And corre-
lord upon an enfranchisement effected after the passing of Bponding
this Act the valuers shall not take into consideration the value ^e'^^e'^m
of escheats. the lord's
6. After the passing of this Act it shaU not be lawful for js?^. .
the lord of any manor to make grants of land not previously ^crSion^
of copyhold tenure to any person to hold by copy of court roll, of new copy-
or by any tenure of a customary nature, without the previous holds,
consent of the Land Commissioners, who in giving or with-
holding their consent shall have regard to the same considera-
tions as are to be taken into account by them on giving or
withholding their consent to any indosure of common lands ;
and whenever any such grant has been lawfully made the
land therein comprised shall cease to be of copyhold tenure,
and shall be vested in the grantee thereof to hold for the
interest granted as in free and common socage.
7. Subject to the provisions of the forty-eighth section of Lord or tenant
the Copyhold Act, 1852, and to the provisions hereinbefore ^^j^^^^®^
expressed, any lord or tenant or owner of any land liable to ^©nt^f all"
any heriot or to any quitrent, free rent, or other manorial manorial
incident whatsoever, may require and compel the extinguish- incidents,
ment of such rights or incidents, and the release and enfran-
chisement of the land subject thereto, and the same proceedings
shall thereupon 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 will admit.
8. Notwithstanding anything herein contained, it shall be Commis-
lawf ul for the Commissioners, if they see fit, in any enf ran- sioners to
chisement effected by award, to continue and give effect to ^^® P^^^^r to
any conditions affecting the user of the land subject to which aiSons of^*^"
a tenant may have been admitted, and imposed or created for uaer.
the benefit of the public or of the other tenants of the manor,
where, in the opinion of the Commissioners, any especial hard-
ship or injustice would result if the lands were released from
sucSi conditions.
858
APPENDIX XIIL
AxnendiDCiit
of s. 6 of
21 & 22 Vict.
0. 94.
AmeDdmexit
of 8. 8 of
21 & 22 Vict.
0. 94.
As to duties
of valuers.
Provisions relating to Compensations^ Valuations^ the making of
Awards^ the incidence and redemption of RentchargeSy and
the application of Compensation Money*
9. The sixth sectioii of the Copyhold Act, 1858, shall be
amended as follows : — ^Instead of the words '* admittance or
death " shall be read the words ** admittance or enrolment on
alienation ; " and instead of the final word ** heriot " shall be
read the word " enrolment."
10. Section eight of the Copyhold Act, 1858, shall be read
as if the word thirty had been substituted therein for twenty,
and subject to the following modifications : —
(a) The lord and tenant in any case may appoint one and
the same person as valuer :
(b) Either party may in any case haye the valuation made
as in cases where the land to be enfranchised is rated
to the poor's rate at a greater amount than the net
annual value of thirty pounds, but in that case he
shall be liable to pay the additional expense caused
by such mode of valuation :
(c) Where the valuers fail to make a decision, and also fail
to refer the matter to the umpire, the umpire shall,
if so directed by the Commissioners, act as if he had
been duly appointed by the lord and tenant to act as
their valuer, and the umpire so acting shall make
and deliver his decision to the Commissioners within
forty-two days from his being directed by the Com-
missioners to act as valuer for both parties; and
where he has not been so directed, or where having
been so directed he fails to deliver his decision within
the time aforesaid, the Commissioners shall fix the
consideration to be paid :
(d) The valuers or either of them, if they fail to agree upon
the compensation to be paid for the enfranchisement,
may refer the whole matter or any point in dispute
to the umpire.
1 1 . The valuers appointed under the provisions of the Copy-
hold Acts shall determine the value of the manorial and other
rights and incidents, such value to be a gross sum of money,
and their decision shall be in such form as the Commissioners
may prescribe, and they shall in every case deliver the details
of the valuation to the Commissioners, and if it shall appear
to the Commissioners that the valuation is imperfect or errone-
ous, they may remit it for reconsideration or correction ; and
if the valuers neglect or refuse to amend the same, the Com-
missioners may, aiter due notice to the lord and to the tenant,
and after fully considering all the circumstances brought be-
fore them, determine the value of the manorial and other
THE COPYHOLD ACT, 1887. 669
rights and incidents at saoh a sum as they may deem just and
reasonable.
See Beg, t. The Land Comm%numer$ f<or England^ 23 Q. B. Diy. 69.
12. Upon the death, incapacity, or refusal to act, or removal In case of
from time to time, of any valuer appointed under the pro- death, Ac
visions of the Copyhold Acts, another valuer shall, by a time ^Jtherto be
to be fixed by the Commissioners, be appointed in his stead appointed,
in the manner and by the means by which the valuer whose
place he is to £11 was appointed ; and ii no valuer be ap-
pointed within the time fixed by the Commissioners, then the
appointment shall be made by the Commissioners, and the
new valuer for the time being may adopt and act upon any
valuation and other matters or proceedings which shall have
been completed or agreed upon by the valuer previously
acting.
13. The tenant may in any case before the completion of Payment may
any enfranchisement pay the compensation in a gross sum of ^® made in
money, but in case of an enfranchisement by award, he shall, ^^™** """^
within ten days after the receipt of the draft of the proposed
award, give notice in writing to the Commissioners of his
desire so to pay.
14. Subject to the foregoing provision, and imless the When corn-
parties otherwise agree, such compensation shall, in the pensationto
following cases, viz. : — ^ tSimre^^
(a) "miere the enfranchisement is effected at the instance '*^^^^*
of the lord ;
(b) Where the land can^ in the opinion of the Commis-
sioners, be sufficiently identified, and the compen-
sation to the lord amounts to more than one year's
improved annual value of the land enfranchised,
consist of an annual rentcharge commencing in every case
from the date of the notice to enfranchise, and issuing out of
the land enfranchised, equivalent to interest at the rate of
four pounds per centum per annum upon the amount of com-
pensation ascertained as aforesaid.
15. From and after the first day of January next every Bentcharges
rentcharge already created or to be hereafter created under *® ^ payablJe
the provisions of the Copyhold Acts shall be payable half- j^^® ^"^^
yearly on the first day of January and the first day of July iSTj^S^
in every year, and a proportionate payment shall be made on each year,
the first day of January next in respect of the interval which
shall have elapsed since the last preceding, day of payment or
since the commencement thereof, as the case may be ; and on
any enfranchisement taking place after the said first day of
January a proportionate payment shall in like manner be
made on such one of the said half-yearly days of payment as
660
APPENDIX XIII.
fihall next follow the date of the award or memoranduin or
deed of enfranchisement.
Beco^erj 16. Every such rentchafge shall be recoverable by such
ajdmcidenoe remedies as are given by section forty-four of the Con-
veyancing and Law of Property Act, 1881. Any occupying
tenant who is called upon to pay and does pay any money on
account of such rentcharge, which as between hiTn and his
landlord he shall not be liable to pay, shall be entitled to
recover the same from his landlord or to deduct it from the
next rent payable by him.
See SearU v. Cooke^ 43 Oh. Dir. 519.
of rent
oharge.
Bentdharffe
redeemable
by tenant.
Provision
when, after
notice for
redemption,
money la not
paid*
Bentcharges
to rank as if
under Copy-
hold Acts.
Ezpensee of
redemption.
Transfer of
fee-farm rent
or oharge
from manor
to freehold
lands or
Grovemment-
stooks of
adequate
value.
1 7. Any such rentcharge may be redeemed upon any half-
yearly day of payment upon six months' previous notice in
writing at the option of any person for the time being in
actual possession or receipt of the rents and profits of the
land subject to the rentcharge, by payment to the person for
the time being entitled to receive the rentcharge of twenty-
five times the yearly amount of the rentcharge created as
aforesaid.
18. After the expiration of a notice for redemption, if the
redemption money and aU arrears of the rentcharge are not
duly paid, the person entitled to the said rentcharge shall
have and may exercise over the property charged therewith
aU the powers and remedies given to a mortgagee in and by
the Conveyancing and Law of Property Act, 1881, for the
recovery of the redemption money and all arrears, if any, of
the said rentcharge.
19. Bentcharges created under this Act on enfranchised
lands shall, with reference to other charges on and interests
in such lands, rank in the same manner as if such rentcharge
were created under the Copyhold Acts passed prior to this
Act.
20. The expenses incurred in redeeming such rentcharges
shall be dealt with on the same footing as the expenses in-
curred in redeeming a mortgage.
21. Where in the course of an enfranchisement under the
Copyhold Acts it is found that a manor, or the lord's estate
ana interest in any land belonging thereto, which may be the
subject of enfranchisement is subject to the payment of a
fee-farm rent or to any other charge, the Commissioners may,
upon the application of the person for the time being bound
to make such payment or defray such charge, by order under
their seal, direct that the fee-farm rent or charge respectively
shall be a charge upon any freehold lands specified in the
order, being of adequate value and held under the same title
THB COPYHOLD ACT, 1887. 561
as the said manor or land, or upon any adequate amount of
govemment stocks or funds to be transferred into court by
file direction of the Commissioners in manner prescribed by
the High Court Funds Bules, or into the names of trustees ap-
pointed by the Commissioners ; and upon the sealing of such
order the said manor and land shall be freed and for ever dis-
charged from such payment or charge ; and such payment or
charge shall be and continue a charge upon the land or funds
specified in the order of the Commissioners, and, so far as the
nature of the case will admit, there shall be and are hereby
attached thereto the like remedies for the recovery thereof as
against the land or funds subject thereto, as might have been
had as against the manor or land belonging thereto in respect
of the original charge.
22. In any case conducted before the Commissioners, when Commis-
the amount of compensation has been duly ascertained, the Monera may
Commissioners, having made such inquiries as to them shall f»mo»^ard
seem fit, may frame an award of enfranchisement on the basis ^y^nent.
of such compensation, and in such form as they shall provide,
and may confirm the same, and such confirmed award shall
have the same force and validity as an award of enfranchise-
ment under the Copyhold Act, 1858. And where the draft
award has been perused by the steward, it shall not be neces-
sary to serve a copy thereof upon the steward, as required by
the last proviso to the tenth section of the Copyhold Act, 1858.
But a copy of the award, sealed or stamped with the seal of
the Commissioners, shall be sent by the Commissioners to the
lord, who shall cause the same to be entered on the court-rolls
of the manor.
23. It shall be lawful for the owner of any land enfran- Power to
chised under the Copyhold Acts, although his estate may be charge land
only a limited estate, to charge the land enfranchised with ^^ranchised
the compensation money paid for such enfranchisement, and ^j^J^^
also with the expenses attending such enfranchisement, or money, &o.
with any part thereof respectively, with interest thereon not
exceeding five pounds per centum per annum, or by way of
terminable annuity calculated on the same basis. Any and
every such charge may be by deed by way of mortgage with,
under, and subject to the provisions of the Conveyancing and
Law of Property Act, 1881, and shall be a first charge on the
land, and shall have such priority as by the thirty- third section
of the Copyhold Act, 1858, is assigned to the charges there
expressed to be first charges ; and any moneys already invested
or previously secured or charged on such land may be con-
tinued on the security of the same, notwithstanding the
imposition of the said charges under the Copyhold Acts. Any
company now authorised to make advances for works of
£. 0 0
562 APPENDIX XIII.
agricultural improyement to owners of settled and other
estates, may, subject and according to the provisions of their
respective Acts of Parliament, charters, deeds, or instruments
of settlement, make advances to owners of settled and other
estates of such sums as may be required for the payment of
any consideration or compensation for commutation or enfran-
chisement under the existing or any future Oopyhold Acts, or
of any expenses chargeable upon a manor or land under the
same Acts or otherwise, and to take for their repayment a
charge for the same in accordance with the provisions of their
respective Acts of Parliament.
Lord's ex- 24. Any expenses paid by a lord in proceedings under the
P®°*f® "^ Oopyhold Acts may be charged either on lands settled to the
on lands or same uses as the manor or on rentcharg^s arising out of other
rentchargee. enfranchisements within the manor, and every such charge
shaU be by deed by way of mortgage with, under, and subject
to the provisions of the Conveyancing and Law of Property
Act, 1881.
Eeomptfor, 25. In every case where land is enfranchised under the
and dispos^^ award of the Commissioners, or by deed with the consent of
tion — ^^ ' ^^^ Commissioners, the lord for the time being, although his
award, or estate in the manor may be only a limited estate, shall be
with consent, able to give a complete discharge for money payable to the
«v.^!S!!S?™"" ^^^^ ^^^ compensation, so as to relieve the person or persons
""" paying the same from aU responsibility for the application
thereof, and in such cases the compensation money shall be
paid by the recipient in such manner as the Conmiissioners,
having regard to the provisions of the Copyholds Acts, shall
direct,
—in oase of 26. In cases of enfranchisement by agreement between the
enfranchise- parties, or otherwise without reference to the Commissioners,
wnreement where the compensation money does not exceed five hundred
T^ere com- pounds, the lord for the time being shall be able to give such
pensation complete discharge, if he makes a declaration in writing
tinder 600/. 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 actually so entitled he shcdl be
deemed to have received such money as a trustee for the
persons who are so entitled. If his declaration is false he
shall be liable to the penalties att€tched to a false statutory
declaration.
Steward's 27. In every case of enfranchisement by award after the
compensation thirty-first day of December one thousand eight hundred and
^ter 3i8t eighty-seven the tenant shall pay to the steward the compen-
1887. ' sation mentioned in the schedule to this Act.
Prior to 28. In every case of enfranchisement by award prior to the
ist Jannaiy, first day of January one thousand eight hundred and eighty-
1888.
sionerSy
THE COPTHOLD ACT, 1887. 568
eight the expenses of enfranohisement and the steward's com-
pensation shall be dealt with as provided by the Copyhold
Acts prior to this Act.
Provisions relating to Procedure and Expenses.
29. From and after the passing of this Act the words *' in Amendment
the course of the valuations in any enfranchisement to be ^. ^^ * ^^
effected by an award under the Copyhold Acts " shall be sub- J^^' °' ^^'
stituted for the words " upon or prior to any admittance or in
the course of such valuations " in section eight of the Copy-
hold Act, 1852.
30. The Land Commissioners shall frame and cause to be Gommis-
printed and published such a scale of compensation for the monera to
enfranchisement of land from the manorial and other rights ^J^ *
and incidents specified or referred to in the Copyhold Acts, perflation,
including heriots, as in their judgment will be fair and just
and will facilitate enfranchisement, and such scale shall con-
tain all such directions for the guidance of lord, tenant, and
valuers as the Commissioners may deem necessary. The said
Commissioners shall also print and publish a scale of allow^ance
to valuers for services to oe performed in the execution of the
Copyhold Acts. The Commissioners may from time to time
vary any such scales, which are to be for guidance only, and
not to be binding as a matter of law in any particidar case,
but the party requiring enfranchishment shall state to the
other party whether or no he is willing to adopt the scale.
See p. 473, ante^ for the scale of compensation for the enfranchisement
of land, and p. 476 for the scale of allowance to valuers.
31 . If pending any proceedings commenced after the passing In case of
of this Act for enfranchisement under the Copyhold Acts the death pro-
lord or tenant shall die, there shall be no abatement of the ^^^ ^^*
proceedings ; any fresh admittance or enrolment consequent
on such death and pending such proceedings shall be made
without the payment of any fine, relief, or heriot to the lord ;
and the enfranchisement shaU be proceeded with and the com-
pensation shall be ascertained on the same footing as if the
enfranchisement had been effected immediately after the
commencement of proceedings.
32. Previously to any enfranchisement by award or deed Declaration
under the Copyhold Acts the Commissioners, if they see fit, to be made
may require the lord or steward of any manor to make a ^7 lord or
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, and it shall be lawful for the Commis-
sioners to accept such declaration for the purposes of the
Copyhold Acts ; but if the Commissioners shall consider that
such evidence does not fully and truly disclose all such parti-
oo2
664
APPENDIX XIII.
Steward as a
genenl rule
to represent
the lord.
Award maj
be withheld
until payment
of fees.
General pro-
yiaions as to
expenses.
Notices.
ctilars as are necessary, or if no sach declaration shall be
made, or if the lord shall refuse or decline to give such evi-
dence as they shall deem proper and necessary to show a
satisfactory primd facte title in the lord, then, if they think
the justice of the case requires it, they may direct that the
compensation for enfranchisement, when a gross sum of money,
shall be paid into court in the manner prescribed by the High
Court Funds Bules.
33. Any lord may act on his own behalf, or may appoint an
agent other than his steward to act for him ; but unless and
imtil he has given written notice to the tenant and the Com-
missioners respectively 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 Commissioners respectively may
treat his steward as his agent for receipt of notices, making
of agreements, and all other matters relating to enfranchise-
ment, and in all matters of procedure the steward shall be
deemed to represent the lord ; except that no steward shall,
without special authority, have power to consent on behalf of
the lord to dealings with the rights comprised in section forty-
eight of the Copyhold Act, 1852, as herein amended.
34. The Commissioners shall have power to require the
payment of all office fees and other expenses of the Commis-
sioners as aforesaid, from either lord or tenant requesting any
award, deed, or order, before delivery of the same.
35. Whenever money is hereby declared to be payable by
any person on account of the expenses of proceedings under
the Copyhold Acts : —
(a) The amount may be recovered 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 :
(b) If it be payable by the lord to the tenant, or by the
owner of a rentcharge to the owner of the property
charged therewith, the amount may be set oft' 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 :
(c) If there is dispute as to the amount of such expenses,
the Commissioners may ascertain it, and may declare
it by order which shall be binding on all parties
concerned.
36. Any notice required or authorised by the Copyhold
Acts to be given to any person may be in writing or print, or
partly in writing and partly in print, and shall be sufficiently
given if delivered to such person himself or left at the usual
or last known place of abode or business in the United King-
THB COPYHOLD ACT, 1887. 565
dom of Buoh person. Any such notice shall also be sufficiently
giyen if it is sent by post in a registered letter addressed to
tiie person to be affected thereby by name at the aforesaid
place of abode or business, and if that letter is not returned
through the Post Office undelivered, service or delivery shall
be deemed to be made at the time at which the registered
letter would in the ordinary course be delivered. Where a
notice is required or authorised to be given to the tenant of
any premises it may be given by delivering the same, or a true
copy thereof, to some person on the premises, or, if there is no
person on the premises to whom the same can be delivered with
reasonable diligence, by fixing the notice on some conspicuous
part of the premises.
37. All proceedings for enfranchisement or redemption Pending pro-
already commenced under the Copyhold Acts prior to this oeedingstobe
Act shall be carried out under those Acts as if this Act had <»™^out
. J under former
not passed. ^^j^.
General and Miscellaneous Provisions,
38. All rights by this Act conferred and all liabilities im- Snooession of
posed upon a lord or tenant shall be held to be conferred or j?^^.*? *^^
imposed upon the successors in title of such lord or tenant "*»>"**i®**
unless a contrary intention appears.
39. Anything by the Copyhold Acts required or authorised Provision for
to be done by the lord of a manor, or the tenant or owi;^er of <»8^ o^
any land or right, may be done by such lord or tenant or ^P*^®*'
owner, notwithstanding that he may be a trustee for any per- lunatics and
son, or that his estate in such manor or land be only a limited married'
estate ; and the guardian of an infant lord, tenant, or owner, women,
and the committee of the estate of a lunatic lord, tenant, or
owner, shall have full power to do on his behalf anything by
the said Acts required or authorised to be done by such infant
or lunatic ; and a married woman, being lady of the manor,
or tenant of any land or right of copyhold or customary tenure,
shall for the purposes of the said Acts be deemed to be 9k feme
gole. Where one or
40. When either the lords or the tenants are trustees, and shallbe abroad
one or more of such trustees shall be abroad or shall be in- or shall be
capable or refuse to act, any proceedings necessary to be done incapable or
by such trustees for effecting any enfranchisement under the 5?^"*?!*° *°*
Copyhold Acts may be done by the other trustee or trustees, trusteesmay
as the case may be. act.
41. The provisions of the forty-fourth section of the Copy- Provision for
hold Act, 1852, with reference to lands subject to leases, shall lands in lease,
be deemed to apply not only to leases and demises at will, but
also to leases and demises for any greater interest, and they
shall be applicable to all lands enfranchised under the Copy-
hold Acts.
566 APPENDIX xni.
Boundaries. 42. In all oases of lands enfranchised nnder the Copyhold
Acts the following rules shall apply as between the lord and
the tenant : —
(a) Where the identity of any lands cannot be ascertained
to the satisfaction of the Taluers, such lands shall be
taken at the quantities mentioned in the court books
or rolls of the manor, if such quantities are therein
stated to be in statute measure, and as to any lands
the quantities of which are not so specified, the same
shall be taken at such quantities as such vciluers may
determine :
(b) Where the lands are not defined by a plan upon the
court-rolls, the valuers shall, if requested in writing
so to do either by the lord or tenant, define the
boundaries or limits of the lands by a plan ; such
plan when accepted by the Commissioners to be
conclusive :
(c) When valuers have been appointed it shall be lawful
for any lord or tenant, in case of any doubt or differ-
ence of opinion as to the identity of any lands, to
apply to the Commissioners to define the boundaries
thereof for the purpose of any enfranchisement, and
the Commissioners shall proceed in such manner as
they shall see fit to ascertain and define such boun-
daries; and such definition of boundaries, when made
by the Commissioners, shall be final and conclusive :
(d) Except by agreement between the lord and the tenant,
no suah plan shall be undertaken in any case where
it shall appear by the court-rolls or omerwise that
the boundaries of the lands proposed to be enfran-
chised have been for more than fifty years last past
treated as being intermixed with the boundaries of
other lands and as being incapable of definition.
Power to refer 43. Notwithstanding the provisions of the Copyhold Acts,
qaefitionfi of the lord and tenant may at any time after notice of enfran-
to'i^mS^^^ chisement shall have been delivered agree in writing that the
sionerB. ' Commissioners shall determine the compensation to be paid
for enfranchisement. And the Commissioners shall, upon
receipt of such agreement, take such proceedings and make
such inquiries as they may deem necessary to determine such
compensation, taking into consideration all such matters as
valuers appointed under the Copyhold Acts are bound to take
into consideration in making a valuation ; and having deter-
mined such compensation, the Conmiissioners shall commu-
nicate the residt in writing to the lord and tenant, and shall
fix a time within which any objection to such determination
may be signified to them in writing by the lord or tenant, and
forthwith after the period fixed for such objections to be sig-
THE COPYHOLD ACT, 1887. 567
«
nified shall have expired if there be none, or if there be any
then forthwith after the Commissioners shall have considered
and disposed of such objections and made such alterations, if
any, as they shall see fit, they shall make their award of en-
franchisement in like manner as if the compensation had been
ascertained by valuers under the Copyhold Acts.
44. It shall be lawful for the Commissioners, if they see fit, Commis-
on the application of any person interested, at any time to sionersmay
correct and supply any error or omission arising from inad- ^^l^^
vertence in any award of enfranchisement, deed of enfranchise- ^^^j. ingtru-
ment, or charge, already made or issued, or to be made and ments.
issued by them, or any other instrument authorised by the
said Acts to be made or issued by the Commissioners, after
such notice to the parties interested as the Commissioners
shall deem proper, and all expenses incident thereto shall be
paid by the p^ies, or either of them, if and as the Commis-
sioners direct.
45. The thirtieth section of the Conveyancing and Law of Truat oopy-
Property Act, 1881, shall not apply to land of copyhold or ^oldsof
customary tenure vested in the tenant on the court-rolls of ^^^*^^*^® j
any manor upon any trust or by way of mortgage. ^g chattels
See In re Milk' Trmt, 37 Ch. Div. 312, 40 Ch. Div. 14 (C. A.). ^^^
46. In every case where, under the fourth section of the ProviBionfor
Universities and College Estates Act Extension, 1860, any case of joint
university or college and any person shall jointly constitute l<w^ under
" the lord" of the manor, then any rentcharge to be created ^\^?^ ^^'^
under the Copyhold Acts on the enfranclusement of land lo • o- o .
held of such manor shall be in favour of, and the power to
give receipts hereinbefore conferred for compensation or re-
demption money shall be exerciseable by, the person who at
the date of the enfranchisement shall be entitled in possession
to the profits of the manor or to the receipt of such rentcharge,
and the executors and administrators of such person, but
without prejudice to any question as to the further disposal
of the moneys secured by such charge.
47. The following provisions shall apply to every manor in Provisions for
which the fines are certain, and in which it is the practice for oases where
copyholders in fee to grant derivative interests to persons who derivative
are admitted as copyholders of the manor in respect of such OTtOTSuDOTi
interests :— the rolls.
(a) The tenant for the purposes of the Copyhold Acts shall
be the person who is admitted or enrolled in respect
of the inheritance, and who is in this section called
the tenant-in-f ee :
(b) The enfranchisement of the land to such tenant shall
enure for the benefit of himseU and every other
568 APPENDIX xm.
person haying any customaiy estate or interest sub*
sisting in the same land, without any further en-
franchisement, and all such persons shall be entitled
to estates and interests in the land enfranchised
corresponding with their customary estates and in-
terests existing at the date of the enfranchisement :
(c) AU rentcharges payable in respect of such enfranchise-
ment, and all sums of money payable by the tenant-
in-f ee for compensation or the expenses of enfran-
' chisement, and the interest thereon, shall, if the
parties have not otherwise af2;Teed, be borne and
paid by the several persons for whose benefit the
enfranchisement enures in proportion to their respec-
tiye interests in the enfranchised land :
(d) If any dispute arises respecting the due apportionment
of such charges, the Commissioners may, on the appli-
cation of any party interested, and after due inquiry,
make an order apportioning the same. Such order
shall be binding on all parties concerned, and the
expenses of and incident to it shall be paid by the
parties or any of them as the Commissioners
oirect :
(e) — (1.) On the request of the lord, or of one-fourth in
number of the copyholders for the time being on the
court-roll of any such manor, and upon such pro-
vision for expenses bein^ made as the Commissioners
may require, the Commissioners may make a loc€d
inquiry for the purpose of ascertaining whether the
copyholders of such manor desire that enfranchise-
ment shall be effected throughout the manor :
(2.) If the Commissioners find that not less than
two-thirds in number of such copyholders desire
such enfranchisement, they shall by order dedare
that all copyhold tenements of the manor are to be
enfranchised; and thereupon they shall proceed to
ascertain the amount of compensation due to the
lord upon the enfranchisement of each tenement held
by a tenant-in-fee, and to efPect such enfranchise-
ments accordingly as between the lord andthetenants-
in-f ee. The compensation in every case shall consist
of a gross sum of money, unless the lord and tenant-
in-fee otherwise agree :
(3.) Upon the making of the declaration above
mentioned, all the tenants-in-fee of the manor shall
be liable to contribute rateablyto the expenses of
the local inquiry according to the amount of com-
pensation payable by them respectively. The tenant-
in-fee and all copyholders holding derivative interests
THE COPYHOLD ACT, 1887. 669
in tlie same tenement shall be liable to contribute
rateably, according to the value of their respectiye
interests, to the compensation, and to all such ex-
penses attending the enfranchisement as are payable
on the part of tenants, including the contribution
assessed on tenants-in-f ee as last aforesaid :
(4.) The Commissioners shall haye power to ap-
portion such contributions between the several tenants
of each enfranchised tenement, and also between the
several tenants-in-fee, and to make orders for the
payment of such contributions and expense&by the
persons from whom they are due. Such orders shall
be conclusive upon all persons hereby declared liable
to contribute :
(5.) Without the consent of the tenant-in-fee the
Commissioners shall make no award for the enfran-
chisement of any tenement unless and until they
have apportioned the contributions between sucn
tenant-in-fee and the tenants holding derivative
interests in the same tenement, and have made orders
for payment of the same, or otherwise have satisfied
themselves that the tenant-in-fee has full security
for the amounts which the tenants of derivative
interests are to contribute.
48. When and so soon as all the lands held of or parcel of Custody of
any manor shall be enfranchised the lord or, with the consent w^uft-roUa.
of the lord, any other person having custody of the court-rolls,
court-books, and records of such manor may, if he thinks fit,
give up and hand over to the Master of the Eolls all or any of
such court-rolls, court-books, and records, and the Master of
the Rolls shall have power to receive and to undertake the
custody thereof, and in case the Commissioners shall have
obtained the custody of any such court-rolls, court-books, or
records under the Copyhold Act, 1852, or otherwise under
the Copyhold Acts, they shall have power to give all or any
of them up to the Master of the Eolls, who shall have power
to take and keep the same in manner aforesaid ; and from
thenceforth all persons seised of or interested in any such
lands shall have access to and may inspect such court-rolls,
court-books, and records handed over as aforesaid, and may
inspect the same and obtain office copies or certified extracts
therefrom on the payment of such reasonable fees as shall be
fixed from time to time under the authority of the Master of
the Bolls.
Provided always, that the Master of the Eolls shall have
power from time to time to make, and when made revoke,
add to, and vary rules respecting the manner in which and
the time at which the access to and inspection of such court-
670 APPBNDix xni.
rolls, court-books, and records handed over as aforesaid, sliall
be had and made, and such office copies and certified extracts
shall be obtained, and as to the amount and mode of payment
of reasonable fees for or in respect of such office copies and
certified extracts as aforesaid.
Provided further, that every such rule shall be laid before
both Houses of Parliament within six weeks after it is made,
or after the next meeting of Parliament.
Literpreta- 49. In this Act and the Copyhold Acts, unless where the
tion of tenns. context shows that the words hereinafter mentioned are used
in a different sense, that they shall be understood in manner
Comsiis- hereinafter mentioned, that is to say, the expression ''the
nonen. Commissioners " shall mean the Land Commissioners for
Copyhold England ; the expression " the Copyhold Acts " shall extend
° * to and include this Act ; the word ** lord " shall be interpreted
* as the seune is interpreted in the Copyhold Act of 1841 (a) ; the
Tenant. word " tenant " shall comprise all persons holding lands sub-
Hent. ject to any manorial right or incident ; the word *' rent " shall
mclude aU payments or renders in money, produce, kind, or
labour, due or payable in respect of any land holden of or
Owner. parcel of any manor ; the word " owner " shall include every
person entiUed to hereditaments for any term of years origin-
ally granted for ninety-nine years or upwards, or for some
Admittance, greater estate ; the words " admitting or enrolling," " admit-
tance or enrolment," ''admit or enrol" shall include an
express admittance or enrolment of a tenant and eveiy licence
of any assurance, and every ceremony, act, and assent whereby
the tenancy or holding of any such tenant is perfected ; and
generally words interpreted in the earlier Copyhold Acts
shall receive the same interpretation in this Act save where a
contrary intention appears.
(a) See p. 366, ante.
Act to be part 50. This Act shall be taken and construed as part of the
A^^^^^^ Copyhold Acts, and may be cited either generally under the
■ term the Copyhold Acts, or specifically as the Copyhold Act,
Short title. jggy^ ^^^^ throughout this Act the expression "Copyhold
Acts " shall include this Act.
Bopeal. 51, The following portions of the Copyhold Acts are hereby
repealed ; that is to say,
The twelfth section of the Copyhold Act, 1843 :
The fourth, seventh, ninth, and twenty-fourth sections of
the Copyhold Act, 1852 :
The seventh section of the Copyhold Act, 1858.
THE OOrYHOLD ACT, 1887. 671
SCHEDULE.
Seals of StewarcPt Compentation.
When the oonfiideration for the enfraochisement does not exceed 1/. —
fiye ahillingB. When the same exceeds 1/., but does not exceed 51, — ^ten
shillings. When the same exceeds 5/., bat does not exceed 10/. — one
pound. When the same exceeds 10/., but does not exceed 15/. — two
pounds. When the same exceeds 15/., but does not exceed 207. — three
pounds. When the compensation exceeds 20/. but does not exceed 25/.
— ^four pounds. When the same exceeds 25/., but does not exceed 50/. —
six pounds. When the same exceeds 60/., but does not exceed 100/. —
seven pounds. And also on eveiy additional 50/., or fractional part of
50/. over and above the first 100/. — ten shillings. The above compensa-
tion is exclusive of stamps and paper or parchment or map or plan which
are to be paid for bj the tenant.
( 572 )
APPENDIX XIV.
Gliargeof
duties in
Bchednle.
hJl duties to
be paid
aooording to
regxdations of
Aot.
lExtraots from the Stamp Act, 1891.
(54 & 55 Vict. c. 39.)
An Act to consolidate the enacbnenta granting and relating
to the stamp duties upon instruments and certain other
enactments relating to stamp duties, [2lBt July, 1891.]
PART I.
BeGULATIOKS applicable to iNSTRTJMEirrS GENEBALLY.
Charge of Duty upon Instruments.
1 . From and after the commencement of this Act the stamp
duties to be charged for the use of her Majesty upon the
several instruments specified in the first schedule to this Act
shall be the several duties in the said schedule specified, which
duties shall be in substitution for the duties theretofore
chargeable under the enactments repealed bj this Act, and
shall be subject to the exemptions contained in this Act and
in any other Act for the time being in force.
2. All stamp duties for the time being chargeable by law
upon any instruments are to be paid and denoted according
to the regulations in this Act contained, and except where
express provision is made to the contrary are to be denoted
by impressed stamps only.
Terms upon
whioh instra*
ments sot
duly stamped
maybe
received in
evidenoe.
Production of Instruments in Evidence.
14. — (1.) Upon the production of an instrument chargeable
with any dfuty as evidence in any court of civil judicature in
any part of ihe United Kingdom, or before any arbitrator or
referee, notice shall be taken by the judge, arbitrator, or
referee of any omission or insufficiency of the stamp thereon,
and if the instrument is one which may legally be stamped
after the execution thereof, it may, on payment to the officer
of the court whose duty it is to read the instrument, or to the
arbitrator or referee, of the amount of the unpaid duty, and
the penalty payable on stamping the same, and of a further
sum of one pound, be received in evidence, saving all just
exceptions on other grounds.
EXTRACTS FROM THE STAMP ACT, 1891. 573
(2.) The officer, or arbitrator, or referee receiving the duty
and penalty shall give a receipt for the same, and make an
entry in a book kept for that purpose of the payment and of
the amount thereof, and shall communicate to the Conmiis-
sioners the name or title of the proceeding in which, and of
the party from whom, he receivea the duty and penalty, and
the date and description of the instrument, and shall pay over
to such person as the Oommissioners may 'appoint the money
received by him for the duty and penalty.
(3.) On production to the Commissioners of any instrument
in respect of which any duty or penalty has been paid, together
with the receipt, the payment of the duty and penalty shall
be denoted on the instrument.
(4.) Save as aforesaid, an instrument executed in any part
of the United Eongdom, or relating, wheresoever executed, to
any property situate, or to any matter or thing done or to be
done, in any part of the United Kingdom, shall not, except in
criminal proceedings, be given in evidence, or be available for
any purpose whatever, unless it is duly stamped in accord-
ance with the law in force at the time when it was first
executed.
Stamping of Instruments after Execution.
15. — (1.) Save where other express provision is in this Act Penalty upon
made, any unstamped or insufficiently stamped instrument may ftamping
be stamped after the execution thereof, on payment of the S^™™^*^
impaid duty and a penalty of ten pounds, ana sdso by way of \Xoil, **"*'
further penalty, where the unpaid duty exceeds ten pounds,
of interest on such duty, at the rate of five pounds per centum
per annum, from the day upon which the instrument was first
executed up to the time when the amount of interest is equal
to the unpaid duty.
(2.) In the case of such instruments hereinafter mentioned
as are chargeable with ad valorem duty, the following provi-
sions shall have effect : —
(a) The instrument, unless it is written upon duly stamped
material, shall be duly stamped with the proper ad
valorem duty before the expiration of thirty days
after it is first executed, or after it has been first
received in the United Kingdom in case it is first
executed at any place out of the United Elingdom,
unless the opinion of the Commissioners with respect
to the amount of duty with which the instrument is
chargeable, has, before such expiration, been required
. under the provisions of this Act :
(b) If the opinion of the Commissioners with respect to any
such instrument has been required, the instrument
shall be stamped in accordance with the assessment
of the Commissioners within fourteen days after
notice of the assessment :
674
APFBNDIX XIV,
(c) U any Buoh iuBtnunent executed after the sixteenth day
of May one thousand eight hundred and eighty-
eight has not been or is not duly stamped in confor-
mity with the foregoing provisions of this sub-section^
the person in that be£m hereinafter specified shall
incur a fine of ten pounds, and in addition to the
penalty payable on stamping the instrument there
shall be paid a further penalty equivalent to the
stamp duty thereon, unless a reasonable excuse for
the delay in stamping, or the omission to stamp, or
the insuficiency of stamp, be afforded to the satis-
faction of the Commissioners, or of the court, judge,
arbitrator, or referee before whom it is produced :
(d) The instruments and persons to which the provisions of
this sub-section are to apply are as follows : —
Title of Instrameiit bm described in the
Firat Sohedule to this Act.
Bond, oovenant, or instnimeiit of
any Hnd whatsoever.
Conveyanoe on sale ...
Lease or tack . . . - -
Mortgage, bond, debenture, ooye-
nant, and warrant of attorney to
confess and enter np judgment.
Settlement
Penon liable to Penalty.
The obligee, covenantee, or other
person tating the secnrity.
The vendee or transferee.
The lessee.
The mor%agee or obligee ; in the
case of a transfer or reoohvey-
anoe, the transferee, assiffnee, or
disponee, or the person redeeming
the seonrity.
The settlor.
(3.) Provided that save where other express provision is
made by this Act in relation to any particular instrument :
(a) Any unstamped or insufficiently stamped instrument
which has been first executed at any place out of the
United Kingdom, may be stamped, at any time within
thirty days after it has been first received in the
United Kingdom, on payment of the impaid duty
only: and
(b) The Commissioners may, if they think fit, at any time
within three months after the first execution of any
instrument, mitigate or remit any penalty payable
on stamping.
(4.) The payment of any penalty payable on stamping is to
be denoted on the instrument by a particular stamp.
PAET n.
BeOULATIONS APFUOABLIS to PabTXCULAB LrSTBUMENTS.
« « « « ♦
Conveyances on Sale,
"o^veraioe ^^- Por the purposes of this Act the expression "convey-
on sale.^' ance on sale " includes every instrument, and every decree or
EXTRACTS FROM THE STABfP ACT, 1891. 675
order of any court or of any Commissioners, whereby any
property, or any estate or interest in any property, upon the
sale thereof is transferred to or vested in a purchaser, or any
other person on his behalf or by his direction.
55. [^Relates to the calculation of ad valorem duty on stock
and securities.^
56. — (1.) Where the consideration, or any part of the con- How con-
sideration, for a conveyance on sale consists of money payable sideration
periodically for a definite period not exceeding twenty years, ^°^^^
so that the total amount to be paid can be previously ascer- ^^^ents to
tained, the conveyance is to be charged in respect of that be charged,
consideration with ad valorem duty on such total amount.
(2.) Where the consideration, or any part of the considera-
tion, for a conveyance on sale consists of money payable
periodically for a definite period exceeding twenty years or in
perpetuity, or for any indefinite period not terminable with
life, the conveyance is to be charged in respect of that con-
sideration with ad valorem duty on the total amount which
will or may, according to the terms of sale, be payable during
the period of twenty years next after the day of the date of
the instrument.
(3.) Where the consideration, or any part of the considera-
tion, for a conveyance on sale consists of money payable
periodically during any life or lives, the conveyance is to be
charged in respect of that consideration with ad valorem duty
on the amount which will or may, according to the terms of
sale, be payable during the period of twelve years next after
the day of the date of the instrument.
(4.) Provided that no conveyance on sale chargeable with
ad valorem duty in respect of any periodical payments, and
containing also provision for securing the payments, is to
be charged with any duty in respect of such provision, and
no separate instrument made in that case for securing the
payments is to be charged with any higher duty than ten
shillings.
57. Where any property is conveyed to any person in con- How con-
sideration, wholly or in part, of any debt due to him, or sub- veyaiioe in
ject either certainly or contingently to the payment or transfer 2*°^*!f"*j^vi.
of any money or stock, whether being or constituting a charge &o. to be '
or incimibrance upon the property or not, the debt, money, or charged,
stock is to be deemed the whole or part, as the case may be,
of the consideration in respect whereof the conveyance is
chargeable with ad valorem duty.
58. — (1.) Where property contracted to be sold for one Direction as
consideration for the whole is conveyed to the purchaser in to duty in
separate parts or parcels by different instruments, the con- °®"^**"^ casee.
sideration is to be apportioned in such manner as the parties
576 APPENDIX XIV.
think £t, so that a distmct consideratioii for each separate
part or parcel is set forth in the conveyance relating thereto,
and such conveyance is to be charged with ad valorem duty
in respect of such distinct consideration.
(2.) Where property contracted to be purchased for one
consideration for the whole by two or more persons jointly,
or by any person for himself and others, or wholly for others,
is conveyed in parts or parcels by separate instruments to the
persons by or for whom the same was purchased for distinct
parts of the consideration, the conveyance of each separate
part or parcel is to be charged with ad valorem duty in respect
of the distinct part of the consideration therein specified.
(3.) Where there are several instruments of conveyance for
completing the purchaser's title to the property sold, the prin-
cipal instrument of conveyance only is to oe charged witii ad
valorem duty, and the other instruments are to be respectively
charged with such other duty as they may be liable to, but
the last- mentioned duty shall not exceed the ad valorem duty
payable in respect of the principal instrument.
(4.) Where a person having contracted for the purchase of
any property, but not having obtained a conveyance thereof,
contracts to sell the same to any other person, and the property-
is in consequence conveyed immediately to the sub-purchaser,
the conveyance is to be charged with ad valorem duty in
respect of the consideration moving from the sub-purchaser.
(5.) Where a person having contracted for the purchase of
any property but not having obtained a conveyance con-
tracts to seU the whole, or any part or parts thereof, to any
other person or persons, and the property is in consequence
conveyed by the original seller to difPerent persons in parts or
parcels, the conveyance of each part or parcel is to be charged
with ad valorem duty in respect only of the consideration
moving from the sub-purchaser thereof, without regard to
the amount or value of the original consideration.
(6.) Where a sub-purchaser takes an actual conveyance of
the interest of the person immediately selling to him, which
is chargeable with ad valorem duty in respect of the consider-
ation moving from him, and is duly stamped accordingly, any
conveyance to be afterwards made to him of the same pro-
perty by the original seller shall be chargeable only with such
other duty as it may be liable to, but the last-mentioned duty
shall not exceed the ad valorem duty.
Certain oon- 59. — (1.) Any contract or agreement made in England or
tracts to be Ireland under seal, or under hand only, or made in Scotland,
TOnwan<^ with or without any clause of registration, for the sale of any
on sale. equitable estate or interest in any property whatsoever, or for
the sale of any estate or interest in any property except lands,
tenements, hereditaments, or heritages, or property locally
EXTRACTS FROM THE STAMP ACT, 1891. 577
situate out of the United Kin^om, or goods, wares or mer-
chandise, or stock, or marketable securities, or any ship or
▼essel, or part interest, share, or property of or in any ship
or vessel, sliall be charged with the same ad valorem duty, to
be paid by the purchaser, as if it were an actual conveyance
on sale of the estate, interest, or property contracted or agreed
to be sold.
(2.) Where the purchaser has paid the said ad valorem
duty and before having obtained a conveyance or transfer of
the property, enters into a contract or agreement for the sale
of the same, the contract or agreement shall be charged, if
the consideration for that sale is in excess of the consideration
for the original sale, with the ad valorem duty payable in
respect of such excess consideration, and in any other case
witn the fixed duty of ten shillings or of sixpence, as the case
may require.
(3.) Where duty has been duly paid in conformity with the
foregoing provisions, the conveyance or transfer made to the
purchaser or sub-purchaser, or any other person on his behalf
or by his direction, shall not be chargeable with any duty,
and ihe Commissioners, upon application, either shall denote
the payment of the ad valorem duty upon the conveyance or
transfer, or shall transfer the ad valorem duty thereto upon
production of the contract or agreement, or contracts or agree-
ments, duly stamped.
(4.) Provided Uiat where any such contract or agreement is
stamped with the fixed duty of ten shillings or of sixpence, as
the case may require, the contract or agreement shall be re-
garded as duly stamped for the mere purpose of proceedings
to enforce specific performance or recover damages for the
breach thereof.
(5.) Provided also, that where any such contract or agree-
ment is stamped with the said fixed duty, and a conveyance
or transfer made in conformity with the contract or agreement
is presented to the Commissioners for stamping with the ad
valorem duty chargeable thereon within the period of bix
months after the first execution of the contract or agreement,
or within such longer period as the Commissioners may think
reasonable in the circumstances of the case, the conveyance or
transfer shall be stamped accordingly, and the same, and the
said contract or agreement, shall be deemed to be duly
stamped. Nothing in this proviso shall alter or affect the
provisions as to the stamping of a conveyance or transfer after
the execution thereof.
(6.) Provided also, that the ad valorem duty paid upon any
such contract or agreement shall be returned by the Commis-
sioners in case the contract or agreement be afterwards re-
scinded or annulled, or for any other reason be not substan-
E. P P
678 APPENDIX XIV.
tiolly performed or carried into effect, so as to operate as of
be followed by a conveyance or transfer.
As to the sale 60. Where upon the sale of any annuity or other right not
of an annuity before in existence such annuity or other right is not created
Ssfore in^°* ^^ actual grant or conveyance, but is only secured by bond,
existence. warrant of attorney, covenant, contract, or otherwise, the bond
or other instrument, or some one of such instruments, if there
be more than one, is to be charged with the same duty as an
actual grant or conveyance, and is for the purposes of lliis Act
to be deemed an instrument of conveyance on sale.
Principal 61. — (1.) In the cases hereinafter specified the principal
If**"^™^** instrument is to be ascertained in the following manner : —
as^rtained (^) W^®^® ^^7 copyhold or customary estate is conveyed by
a deed, no surrender being necessary, the deed is to
be deemed the principal instrument :
(b) In other ca^es of copyhold or customary estates, the
surrender or grant, if made out of court, or the me->
morandum thereof, and the copy of court roll of the
surrender or grant, if made in court, is to be deemed
the principal instrument :
(c) [Relates to Scotland.!
(2.) in any other case the parties may determine for them-
selves which of several instruments is to be deemed the prin-
cipal instrument, and may pay the ad valorem duty thereon
accordingly.
Conveyances on any Occasion except Sale or Mortgage.
What is to be 62. Every instrument, and every decree or order of any
deemed a con- QQY^^ or of any commissioners, whereby any property on any
^^"^l^^j^j^ occasion, except a sale or mortgage, is transferred to or vested
not being a ' ill &ny person, is to be charged with duty as a conveyance or
sale or mort- transfer of property.
e^B^' Provided that a conveyance Or transfer made for effectuating
the appointment of a new trustee is not to be charged with
any higher duty than ten shillings.
Copyhold and Customary Estates.
ProvisionBas 65. — (1.) No instrument is to be charged more than once
to payment of -^th duty by reason of relating to several distinct tenement^
dn*y* in respect whereof several fines or fees are due to the lord or
steward of the manor.
(2.) The copy of court roll of a surrender or grant made out
of court shall not be admissible or available as evidence of
the surrender or grant, unless the surrender or grant, or the
memorandum thereof, is duly stamped, of which fact the
certificate of the steward of the manor on the face of the copy
shall be sufficient evidence.
(3.) The entry upon the court rolls of a surrender or grant
shall not be admissible or available as evidence of the surrender
EXTRACTS FROM THE STAMP ACT, 1891. 679
or grant 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 of the manor in the margin
of the entiy shall be sufficient evidence.
66.— (1.) All the facts and circumstances affecting the lia- i^cts affect-
biUty to duty of the copy of court roll of any surrender or }^ ^^^ ^
grant made in court, or the amount of duty with which any n^^** ^
such copy of court roll is chargeable, are to be fully and truly
stated in a note to be delivered to the steward of the manor
before the surrender or grant is made.
(2.) The steward of every manor shall refuse —
(a) To accept in court any surrender, or to make in court
any grant, until such a note as is required by this
section has been delivered to him ; or
(b) 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 :
And in any case in which he does not so refuse shall incur
a fine of fifty pounds.
(3.) If any person with intent to defraud her Majesty, —
(a) Makes in court any surrender before such a note. as
aforesaid has been delivered to the steward of the
manor; or
(b) Being employed or concerned in or about the prepara-
tion of any such note as aforesaid, neglects or omits
fully and truly to state therein all the above-men-
tioned facts and circumstances ;
he shall incur a fine of fifty pounds.
67. The steward of every manor shall, within four months Steward to
from the day on which any surrender or grant is made in make out
court, make out a duly stamped copy of court roll of such ^^7 stamped
surrender or grant, and have the same ready for delivery to ^
the person entitled thereto, and in default of so doing BhaU
incur a fine of fifty pounds, and the duty payable in respect
oi the copy of court roll shall be a debt to her Majesty from
tne steward, whether he has received it or not, and if he has
not received the duty the same shall also be a debt to her
Majesty from the person entitled to the copy.
68. The steward of any manor may, before he accepts in Steward may
court any surrender or makes in court any grant, demand the refuse to pro-
payment of his lawful fees in relation to the surrender or grant, oeed except on
together with the duty payable on the copy of court roll JI^J^^^
thereof, and may refuse to proceed in the matter or to deliver duty.
the copy of court roU to any person until the fees and duty are
paid.
pp2
5S0 APPENDIX XIV.
Exchange and Partition or Division.
Ab to ex- 73. Where upon the exchange of any real or heritable pro-
chang«f &o. pertj for any other real or heritable property, or upon the
partition or division of any real or heritable property, any
consideration exceeding in amount or value one hundred
pounds is paid or ^ven, or agreed to be paid or given, for
equality, the principal or only instrument whereby the ex-
change or partition or division is effected is to be charged with
the same ad valorem duty as a conveyance on sale for the
consideration, and with that duty only ; and where in any
such case there are several instruments for completing the
title of either party, the principal instrument is to be ascer-
tained, and the other instruments are to be charged with duty
in the manner hereinbefore provided in the case of several
instruments of conveyance.
Mortgages, Sfc,
Meaning of 86 . — ( 1 . ) For the purposes of this Act the expression * * mort-
" mortgage." gage " means a security by way of mortgage for the payment
of any definite and certain sum of money advanced or lent at
the time, or previously due and owing, or forborne to be paid,
being payable, or for the repayment of money to be thereafter
lent, advanced, or paid, or which may become due upon an
account current, together with any sum already advanced or
due, or without, as the case may be ;
And includes —
(a) Conditional surrender by way of mortgage, further
charge, of or atfecting any lands,
estate, or property, real or personal, heritable or
moveable, whatsoever : and
(b) [Relates to Scotland.^
(c) Any conveyance of any lands, estate, or property what-
soever in trust to be sold or otherwise converted into
money, intended only as a security, and redeemable
before the sale or other disposal thereof, either by
express stipulation or otherwise, except where the
conveyance is made for the benefit of creditors
generally, or for the benefit of creditors specified who
accept the provision made for payment of their debtfi^
in full satisfaction thereof, or who exceed five in
number: and
(d) Any defeazance, . . declaration, . . or other
deed or writing for defeating or making redeemable
or explaining or qualifying any conveyance, transfer,
disposition, assignation, or tack of any lands, estate,
or property whatsoever, apparently absolute, but
intended only as a security : and
(e) Any agreement (other than an agreement chargeable
with duty as an equitable mortgage), contract, or
EXTRACTS ^ROM THE STAMP ACT, 1891. 681
bond accompanied with a deposit of title deeds for
making a mortgage, wadset, or any other security
or conveyance as aforesaid of any lands, estate, or
property comprised in the title deeds, or for pledging
or cnarging the same as a security :
(f) [Relates to Scotland,']
(g) [Deah with mortgages of stocks,]
(2.) For the purpose of this Act the expression '' equitable
mortgage" means an agreement or memorandum, under
hand only, relating to the deposit of any title deeds or instru-
ments constituting or being evidence of the title to any property
whatever (other than stock or marketable security), or creating
a charge on such property.
87. — (1.) [Relates to securities for transfer or re-transfer of Directioii as
any stock,] to duty in
(2.) [Relates to securities for the payment of rentcharges^ ^^*'*"^ cases,
annuities, S^c]
S3.) [Relates to transfers of duly stamped securities,]
4.) Where any copyhold or customary lands or heredita-
ments are mortgaged alone by means of a conditional sur-
render or grant, the ad valorem duty is to be charged on the
surrender or grant, if made out of court, or the memorandum
thereof, and on the copy of court roll of the surrender or
grant, if made in court.
(5.) Where any copyhold or customary lands or heredita-
ments are mortgaged, together with other property, for securing
the same money or the same stock, the ad valorem duty is to
be charged on the instrument relating to the other property,
and the surrender or grant, or the memorandum thereof, or
the copy of court roll of the surrender or grant, as the case
may be, is not to be charged with any higher duty than ten
shillings.
(6.) An instrument chargeable with ad valorem duty as a
mortgage is not to be charged with any further duty by reason
of the equity of redemption in the mortgaged property being
thereby conveyed or limited in any other manner than to a
purchaser, or in trust for, or accor£ng to the direction of, a
purchaser.
88. [Relates to securities for future advances,]
89. The exemption from stamp duty conferred by the Act Exemption
of the session held in the sixth and seventh years of King from stamp
William the Fourth, chapter thirty-two, for the regulation of of'^^r^™^
benefit building societies, shall not extend to any mortgage building
made after the thirty-first day of July one thousand eight societies
hundred and sixty-eight, except a mortgage by a member of restricted.
a benefit building society for securing the repayment to the
society of money not exceeding five hundred pounds.
582
APPENDIX XIV.
Settlements,
when not to
be charged as
seourities.
Where seyeral
instruments
one only to
be charg^
with ad
valorem duty.
Conditions
and agree-
ments as to
stamp duty
void.
Instmments
relating to
Crown pro-
perty.
As to instru-
ments
charged with
duty of 35«.
SettUmenta.
104. [^Deah with the settlement of policies or securitiesJ^
105. An instrument chargeable with ad valorem duty as a
settlement in respect of any money, stock, or security is not
to be charged with any further duty by reason of containing
provision for the payment or transfer of the money, 6tock, or
security, or by reason of containing, where the money, stock,
or security is in reversion or is not paid or transferred upon
the execution of the instrument, provision for the payment,
by the person entitled in possession to the interest or dividends
of the money, stock, or security, during the continuance of
such possession, of any annuity or yearly sum not exceeding
interest at the rate of four pounds per centum per annum
upon the amount or value of the money, stock, or security.
106. — (1.) Where several instruments are executed for
efiPecting the settlement of the same property, and the ad
valorem duty chargeable in respect of the settlement of the
property exceeds ten shillings, one only of the instruments is
to be charged with the ad valorem duty.
(2.) Where a settlement is made in pursuance of a previous
agreement upon which ad valorem settlement duty exceeding
ten shillings has been paid in respect of any property, the
settlement is not to be charged with ad valorem duty in
respect of the same property.
(3.) In each of the aforesaid cases the instruments not
chargeable with ad valorem duty are to be charged with the
duty of ten shillings.
Miscellaneous.
117. Every condition of sale framed with the view of pre-
cluding objection or requisition upon the ground of absence
or insufficiency of stamp upon any instrument executed after
the sixteenth day of May one ^ousand eight hundred and
eighty-eight, and every contract, arrangement, or undertaking
for assuming the liability on account of absence or insuffi-
ciency of stamp upon any such instrument or indemnifying
against such liability, absence, or insufficiency, shall be void.
« « « « «
119. Except where express provision to the contrary is
made by this or any other Act, an instrument relating to
property belonging to the Crown, or being the private pro-
perty of the sovereign, is to be charged with the same duty
as an instrument of the same kind relating to property be-
longing to a subject.
120. Any instrument which by any Act passed before the
first day of January one thousand eight hundred and seventy-
one and not relating to stamp duties, is specifically charged
with the duty of thirty-five shillings, shall be chargeable only
XXTKACrS FROM THE STAMP ACT, 1891 . 583
with' the duty of ten shillings in lieu of the said duty of
thirty-five shillings.
121. All fines imposed by this Act are to be sued for and Recovery of
recovered by information in the High Court in England in P«i«»ltiefl.
the name of the Attorney-General for England
122. — (1.) In this Act, unless the context otherwise re- Definitions,
quires, —
The expression *^ Commissioners " means Commissioners of
Inland Eevenue :
The expression *' material " includes every sort of material
upon which words or figures can be expressed :
The expression ^'instrument" includes every written docu-
ment :
The expression '^ stamp " means as well a stamp impressed
by means of a die as an adhesive stamp :
The expression *' stamped," with reference to instruments
and material, applies as well to instruments and material
impressed with stamps by means of a die as to instru-
ments and material having adhesive stamps affixed
thereto :
The expressions ** executed " and '' execution," with refer-
ence to instruments not under seal, mean signed and
signature :
« « • « «
The expression '< steward" of a manor includes deputy-
steward.
124. This Act shall come into operation on the first day of Coinmenioe-
January one thousand eight hundred and ninety-two. ment.
The following are among the stamp duties on instruments
charged by the First Schedule to the Act : —
AGEEEMENT or CONTRACT, accompanied with £ *. d.
a deposit. See Mortgage, &c., and sections 23
and 86.
APPOINTMENT of a new trustee, and APPOINT-
MENT in execution of a power of any property,
or of any use, share, or interest in any pro-
perty, by any instrument not being a will . • 0 10 0
And see section 62.
APPOINTMENT of a gamekeeper. See Deputa-
tion.
ASSIGNMENT or ASSIGNATION.
By way of security, or of any security. See
MOBTGAGE, &C.
Upon a sale, or otherwise. See. Conveyance.
684 APPENDIX XIV,
BOND, COVENANT, or INSTRUMENT of any & s. d.
kind whatsoever.
(1.) Being the only or principal or primary
Becurity for any annuity {except upon the
original creation thereof hy way of sale or
security, and except a superannuation an-
nuity), or for any sum or sums of money at
stated periods, not being interest for any
principal sum secured by a duly stamped
instrument, nor rent reserved by a lease or
tack.
For a definite and certain period, so Ptoremdu^al^
that the total amount to be ulti-- bondoroov^Mt
mately payable can be ascertained. mtsoSL
For the term of life or any other indefi-
nite period.
For every 5^., and also for any frac-
tional part of 5/., of the annuity or
sum periodically payable . . ..026
(2.) Being a collateral or auxiliary or additional
or substituted security for any of the above
mentioned purposes where the principal or
primaiy instrument is duly stamped.
{The mauB ad v»-
I^Tar^eoAirt
amoimt.
In any other case :
For every 5/., and also for any frac-
tional part of 5/., of the annuity or
sum periodically payable ..006
(3.) Being a grant or contract for payment of a
superannuation annuity, that is to say a
deferred life annuity granted or secured to
any person in consideration of annual pre-
miums payable until he attains a specified
a«e andVas to commence on his aSLg
that age.
For every 5^., and also for any fractional
part of 5/. of the annuity . . ..006
CONDITIONAL SURRENDER of any copyhold
or customary estate by way of mortgage. See
MoBTGAQE, &c., and sections 86 and 87.
CONVEYANCE or TRANSFER, whether on sale
or otherwise, —
(1.) Of any stock of the Bank of England ..079
(2.) Of any stock of the Oovemment of Canada
inscribed in books kept in the United
EXTBACrS FROM THE STAMP ACT, 1891.
WD
Kingdom, or of any Colonial stock to which £ s,
the Colonial Stock Act, 1877, applies —
For eveiT^ 100^., and also for any frac-
tional part of 100/., of the nominal
amount of stock transferred . . ..02
And see section 62.
CONVEYANCE or TRANSFER on sale,
Of any property {except such stock as aforesaid),
Where the amount or value of the consideration
for the sale does not exceed 5/.
Exceeds 5/., and does not exceed 10/.
d.
10/.
15/.
20/.
25/.
50/.
75/.
100/.
125/.
150/.
175/.
200/.
225/.
250/.
275/.
300/.
7)
>>
>l
15/.
20/.
25/.
50/.
75/.
100/.
125/.
150/.
175/.
200/.
225/.
250/.
275/.
300/.
0 0
0 1
0 1
0 2
0
0
0
2
5
7
0 10
0 12
0 15
0 17
1 0
1 2
1 5
1 7
1 10
0 5
61.
6
0
6
0
6
0
6
0
6
0
6
0
6
0
6
0
0
For every 50/., and also for any fractional part
of 50/., of such amount or value
And see sections 54, 55, 56, 57, 58, 59, 60, and
COPY or EXTRACT {attested or in any manner
authenticated) of or from —
(6.) The books, rolls, or records of any court.
In the case of an instrument chargeable (Th«"*™«^^
with duty not amounting to one shilling ( ^iiment.
In any other case . . . . . . ..010
COPYHOLD and CUSTOMARY ESTATES—In-
struments relating thereto.
Upon a sale thereof. i^e^CoNVSYAiroE on Sale.
Upon a mortgage thereof. See Mobtoaoe, &c.
Upon a demise thereof. See Lease.
Upon any other occasion.
Surrender or grant made out of court, or
the memorandum thereof,
and copy of court roll of any surrender or
grant made in court 0 10 0
And see sections 65, 66, 67, and 68.
586 APPENDIX XIV.
OOYENANT. Any separate deed of oovenant {not £ s. d.
being an instrument chargeable toith ad valorem
duty as a conveyance on sale or mortgage) made
on the sale or mortgage of any property, and
relating solely to the conveyanoe or enjoyment
of, or the title to, the property sold or mort-
gaged, or to the production of the muniments
of title relating thereto, or to all or any of the
matters aforesaid.
Where the ad valorem duty in respect ( \ ^^ equMl
• ,1 'J *_• "^ _x ) to the amount
of the consideration or mortgaged ^f g^^^^ ^
money does not exceed lOs. . . ( YBlerem daly.
In any other case . . . . . . . . 0 10 0
CUSTOMARY ESTATES. See Copyhold.
DECLARATION of any use or trust of or concern-
ing any property by any writing, not being a
will, or an instrument chargeable with ad
valorem duty as a settlement . . • . ..0100
DEPUTATION or APPOINTMENT of a game-
keeper 0 10 0
EQUITABLE MORTGAGE. See Moetoaob, &c.,
and sections 23 and 86.
EXCHANGE or EXCAMBION— Instruments
effecting.
In the case specified in section 73 see that section.
In any other case 0 10 0
GRANT of copyhold or customary estates. See
CONVBYANCB — CoPYHOLD.
LEASE. [See sections 75 — 78 of the Act and the
scale in the First Schedule.]
LETTER or POWER OP ATTORNEY.
« « • « «
(6.) Of any kind whatsoever not hereinbefore
described (powers of attorney in copyhold
matters not being so described) . . . . 0 10 0
MORTGAGE, BOND, DEBENTURE, COVE-
N ANT (except a marketable security otherwise
specially charged with duty), and WARRANT
OF ATTORNEY to confess and enter up judg-
ment.
( 1 .) Being the only or principal or primary security
(other than an equitable mortgage) for the
payment or repayment of money —
Not exceeding 10/. . . . . ..003
• Exceeding 10/. and not exceeding 25/. ..008
„ 25/. „ 50/. ..013
9>
£
8,
d.
0
2
6
0
3
9
0
5
0
0
6
3
0
7
6
0 2 6
0 0 6
0 1 0
EXTRACTS FROM THB STAMP ACT, 1891.
Exceeding 50/. and not exceeding 100/. . .
100/. „ 150/. . .
150/. „ 200/. . .
200/. „ 250/. . .
250/. „ 300/. . .
300/.
For every 100/., and also for any fractional
part of 100/. of the amount secured . .
(2.) Being a collateral, or auxiliary, or additional,
or substituted security (other than an equit-
able mortgage), or by way of further assur-
ance for the above-mentioned purpose where
the principal or primary security is duly
stamped :
For every 100/., and also for any fractional
part of 100/., of the amount secured . .
(3.) Being an equitable mortgage :
For every 100/., and any fractional part
of 100/., of the amount secured
(4.) Tbaitsfeb, Assignment, Disposition, or As-
signation of any mortgage, bond, debenture,
or covenant (except a marketable security),
or of any money or stock secured by any
such instrument, or by any warrant of at-
torney to enter up judgment, or by any
judgment :
For every 100/., and also for any frac-
tional part of 100/., of the amount
transferred, assigned, or disponed,
exclusive of interest which is not in
..006
The Bame duty
asa priuoipal
security for
duch further
money.
(5.) Eeoonveyance, Eelease, Discharge, Sur-
RENDEB, BeSURRENDSB, WaRRANT TO VaOATE,
or Ebnunoiation of any such security as
aforesaid, or of the benefit thereof, or of the
money thereby secured :
For every 100/., and also for any frac-
tional part of 100/., of the total amount
or value of the money at any time
securecL .. •. .. .. ..
And Bee sections 86, 87, 88, and 89.
PARTITION or DIVISION— Instruments effecting.
In the case specified in sect. 73, 9ee that section.
In any other case
687
arrear •• •• •• ••
And also where any further money
is added to the money already
secured • •
0 0 6
0 10 0
688 APPENDIX XIV. J
RELEASE or EENUNCIATION of any property, £ s. d.
OP of any right or interest in any property —
Upon a sale. See Conveyance on Sale.
By way of security. See Mobtgage, &c.
In any other case . . . . . . . . 0 10 0
RENUNCIATION. See Reconveyance and Re-
lease.
SETTLEMENT. Any instrument, whether volun-
tary or upon any good or valuable consideration,
other than a bona fide pecuniary consideration,
whereby any definite and certain principal sum
of money (whether charged or chargeable on
lands or oilier hereditaments or heritable sub-
jects, or not, or to be laid out in the purchase
of lands or other hereditaments or heritable
subjects or not), or any definite and certain
amoimt of stock, or any security, is settled or
agreed to be settled in any manner whatso-
ever:—
For every 100/., and also for any fractional
part of 100/., of the amount or value of the
property settled or agreed to be settled ..050
JSxempiion,
Instrument of appointment relating to any
property in favour of persons specially
named or described as the objects of a
power of appointment, where duty has
been duly paid in respect of the same pro-
perty upon the settlement creating the
power, or the grant of representation of
any will or testamentary instrument creat-
ing the power.
And see sects. 104, 105, and 106.
SURRENDER.
Of copyholds. See Copyholds.
Of any other kind whatsoever not chargeable
with duty as a conveyance on sale or a mort-
gage 0 10 0
( 589 )
INDEX.
Abandonmbnt,
of customary services by lord, 218.
of rights of common, 269, 270.
evidence of, 270.
Abatement, by commoners, 262, 263, 285.
Abbey Lands, survey of, 334.
AOKNOWLEDOMENT OF SaTIBFAOTION,
enrobnent of, 81.
form of, 500.
Aots of Pabuament. See Statutes.
Admittance,
on surrender, 51, 52, 148.
enrolment of, 51, 151.
separate for each tenement, 52.
of particular tenant admission of remaindermen, 54, 73.
surrenderee not in customary seisin imtil, 54.
effect of, 63, 69, 72, 80, 162.
not necessary for testator, 64, 84.
not usually taken on conditional surrender, 67, 79.
fees payable by devisee of unadmitted testator on, 65, 85.
presentment oi, imnecessary, 65.
definition of, 68.
how usually effected, 68, 150.
what will amount to an implied, 68, 69, 151.
on voluntary grant, 50, 69, 70.
entitles tenant to have notice of his right to enfranchise, 70, 156.
may be taken by attorney, 70.
of mfant, 70, 154, 155.
of married woman, 71, 155.
of lunatic, 71, 155, 156.
who may compel lord to make, 71, 72, 150.
when mandamus lies to compel, 72, 88.
when lord may compel, 72.
how lord may compel, 72.
of one joint tenant, 73, 188.
of tenants in common, 73.
when re-admittance required, 68, 73.
expense of, by whom paid on conveyance, 76.
fine on, when due, 76, 188, 189.
590 INDEX.
Admittange — continued.
of mortgagee, when taken, 79.
effect of, 80.
right to, when conferred by mortgagee conyeying by deed under
statutory powers, 81.
of appointee under power, effect of, 81, 89.
estate of devisee before, 87.
devisee may present heir for, 88.
heir may claim, notwithstanding devise, 88, 89.
qtu)u&^iie, nature and effect of, 90.
of building society, 102.
of friendly society, 103.
of industrial and provident society, 103.
on descent, 148, 149, loO.
of heir, how effected, 151, 154, 155, 156.
may be made at any place, 151, 312.
cannot be postponed until fine paid, 151.
of widow n>r freebench, 162.
of widower for customary curtesy, 167.
effect of refusal to take, 72, 231.
steward's fees for, 317—322.
when evidence of copyhold tenure, 324.
of freehold tenant sometimes necessary, 324.
evidence of, 346, 347.
must be taken before tenant can enfranchise compulsorily, 375,
378.
form of, in court on descent, 497.
of purchaser, 499.
of tenant in tail in possession, 500.
ADHirrma Lord, fine may be due on death of, 171, 172, 183.
Aj)yANCEMENT, presumptiou as to, on purchase of copyholds for
lives, 23.
ADyowsoN,
may be subject to custom, 9, 137,
may be appendant to demesnes of manor, 12.
may be held in gross, 1 2.
if appendant, may be held by copy of court-roll, 14.
Agent. See Attorney,
Agistment of cattle on common, when allowed, 262.
Agreement,
to inclose common, 286.
formerly enforced by the Courts, 286.
compensation for enfranchisement may be ascertained by, 385,
386.
forms of, as to enfranchisement compensation, 478, 480.
Alienation,
mode of, is evidence of tenure, 2, 324.
of the demesnes, effect of, 12.
customary modes of, 50—52, 60, 66, 68, 73, 78, 79, 82.
of copyhold severed from the manor, 13, 92, 324.
statutoiy modes of, 96 — 121.
INDEX, 591
Alienation — continued,
effect of, in multiplying heriots, 206» 207.
of part of tenement, effect of, on fine, 209.
of tenement by parcels, apportionment of rents and seryioea on,
211.
AliLOTMKNT,
rights of allottee to shoot oyer, 240.
when lord of manor may have right to shoot oyer, 240.
may be made to lord in respect of his qucui right of common,
274.
for labouring poor, proyision of, under Inolosure Acts, 289.
for exercise and recreation of inhabitants, proyision of, under
Inclosure Acts, 289.
under seyeral titles, steward's fees on, 322.
Amercements,
iix manorial courts, by whom set, 304.
form of, 496.
Ancient Demesne, Tenure in,
nature and incidents of, 6, 7.
where found, 6, 325.
rights of tenants to mines and minerals, 7.
how formerly conyerted into socage, 7, 325.
how formerly revived by lord, 7, 325.
effect of Fines and Becoyeries Act, 1833, on, 7, 326.
evidence of, 325.
practice of conveyancers as t<oproof of, 326.
IS within provisions of 1 & 2 Tict. c. 110... 326.
Apportionment,
of customary rents on acquisition of copyholds under Lands
Clauses Consolidation Act, 108, 109.
of rent from lands of different customary natures, 139.
of fines, 186.
relief is not the subject of, 210.
of rents and services on alienation in parcels, 211.
of compensation money among commoners, 292 — 295.
of commutation fines and rents, how effected, 363, 364.
of enfranchisement compensation and expenses between tenant-
in-fee and tenants with derivative interests, 421 — 423.
of rents, &c., by Church Estates Commissioners on enfranduse-
ment& in ecclesiastical manor, 433.
Approvement,
what it is, 276.
statutory provisions as to, 276.
sufficient pasture must be left at time of, 276.
how other rights affected by, 277, 278.
inolosure under right of, is of freehold tenure, 280.
right of, distinct from customary power of lord to inclose with
consent of homage, 280, 281 .
whether tenant of waste inclosed by, has rights of common,
284.
Abbitrary Fine. See Fine.
592 INDEX.
Ajeibitbatob,
disputes as to manorial rights may be referred to, 441.
when consent of Board of Agriculture necessary, 441.
powers of, when determining manorial boundaries, 441.
AssABT Lands, 131, 132.
AssESBiONABLB Makobs, enfranchisement in, 428.
Assignment,
of equitable interests in copyholds, 64, 80, 93.
of £reebench, 162.
of customary curtesy, 167, 168.
of rights of common, 255, 262.
Assise, Eents of,
what are, 211.
apportionment of, on re-grant of tenement in parcels, 211.
lord's remedies for, 211, 212.
extinguished on enfranchisement, 212.
Attainder,
effect of, 224.
of unadmitted devisee or surrenderee, 224.
of trustee or mortgagee, 225.
abolition of, 225.
whether Act abolishing, affects special custom as to, 225.
Attendant Terms.
may exist in copyholds, 24.
when title to, should be traced, 24.
Attorney,
may surrender, 57.
should be appointed by deed for surrender, 58.
statutory provisions as to appointment of, 58.
should surrender in usual way, 59.
revocation of power of, 59.
may take admittance, 70.
how appointed to take admittance, 70.
lord may appoint, for infant or lunatic entitled to admittance,
70, 71.
lord or tenant may appoint, for puiposes of Copyhold Acts,
377, 381.
powers of, when so appointed, 378, 381.
now appointment of, for purposes of Copyhold Acts should be
made, 377, 381.
Award,
of exchange, by valuer under Indosure Acts, 112.
of partition by valuer amder Inclosure Acts, 118.
of division of mtermixed lands by valuer amder Inclosure Acts,
120.
under local Inclosure Acts, Board of Agriculture may correct,
289, 323.
of enfranchisement, when prepared and confirmed, 397.
when copy of, to be served on steward, 397.
copy of, to be enrolled on court-rolls, 397.
effect of oonfiimation of, 398.
Board of Agriculture may correct, 398.
INDEX. 593
Bailiff of Maitob,
surrender into hands of, 51.
dutieB of, in court-leet, 302, 304.
in customary court, 304.
return of, on precept to seize qmmque, 506.
BAIOQtXTPT,
trustee of, -not compellable to take admittance, 110.
how trustee of, entitled to convey copyholds, 110, 184.
no fine payable by trustee of, 184.
Base Fee,
may subsist in copyholds, 26.
demiition of, in fines and B;ecoyeries Act, 1833... 28, n.
Bbast-oate,
may be copyhold, 16.
to be distinguished from right of common, 16.
Benefice,
how copyholds annexed to. 111.
how enfranchisement compensation may be paid to use of a,
405.
BOABD OF AgRIOULTXTRE,
consent of, necessary to grant of waste by lord, 15, 279, 280.
powers, &c., of Copyhold and Land Commissioners traxisf erred
to, 15 n., 359, 360.
powers of, to effect exchanges of copyholds, &c., 113 — 115.
to effect i>artitioD8 of copyholds, 118 — 120.
to divide intermixed lands, 120, 121.
have powers of Inclosure Commissioners imder Indosure Acts,
287.
may require allotments to be made for recreation of inhabitants
or for labouring poor, 289.
may remedy defects in awards imder local Inclosure Acts, 289,
323.
powers of, under Commons Act, 1876... 289.
under Metropolitan Commons Acts, 290.
as to apportionment of compensation money among
commoners, 292 — 295.
expenses of, under Commonable Sights Compensation Act,
1882... 295.
. power of, as to cost of inquiries under Copyhold or Inclosure
Acts, 295, n., 422, n.
may receive court-roUs from lord, when, 316.
may deliver court-rolls to the Master of the Bolls, 316.
may fix fees for inspection of court-rolls after enfranchisement,
316, 417.
powers of, as to voluntary commutations, 361 — 363.
enfranchisements, 365—373.
may require lord to make declaration of title for purposes of
enfranchisement, 366, 376.
mav direct payment of enfranchisement consideration into
Court, 367, 402.
directed to frame scale of compensation for enfranchisements,
383.
E. Q Q
694 INDEX.
BoABD OF Agbicultube — continued.
may suspend enfranchisement proceedings, 384, 385.
when empowered to determine compensation for oompulsory
enfranchisement, 386..
power of, to extend time to valuers or umpire, 389.
to remove valuer or umpire, 389.
to appoint new valuer or umpire, 389.
to determine boundaries of land to be enfranchised^
391.
to continue conditions affecting user of land for public
benefit. 394. 417.
to correct decision of valuers or umpire, 394.
to determine questions of law and fact arising during
enfranchisement proceeding, 395, 396.
when appeal lies £rom decision of, to High Court, 396.^
power of, to frame scale of allowance to valuers or umpire, 396,
397.
prepare and confirm award of enfranchisement, 397.
power of, to correct award of enfranchisement though con-
firmed, 398.
to nominate trustees to receive enfranchisement con-
sideration, 403.
to supply vacancy in office of trustees nominated b^
them, 404, 441, 442.
consent of, necessary to charge of enfranchisement considera-
tion on land, 373, 406.
power of, to transfer charge on manor to freehold lands or
government stocks, 408.
to determine how expenses of voluntary enfranchise-
ment or commutation to be borne, 408, 409.
to ceoiify amount of expenses in compulsory enfran-
chisements, 409 — 411.
as to expenses of enfranchisement when title disputed,
411, 412.
to direct local inquiry whether enfranchisement
desired throughout manor, 421, 422.
to apportion enfranchisement rent-charges and ex-
penses, 421, 423.
to suspend enfranchisement proceedings in eodeaias-
tical manors, 433.
as to enfranchisements under Universities and
College Estates Acts, 435, 436.
to determine disputes as to manorial inddents, 440,
441.
when consent of, necessary to reference of disputes as to
manorial rights and boundaries, 441.
power of, to £rame forms, 442.
to delegate their powers, 442.
to order production of documents relating to indosure,
442.
recovery of costs of, on taxation of enfranchisement expenses,
442.
may allow payment to valuers removed by them, 443.
fees to be taken by, subject to approval of the Treasury, 443.
INDEX.
59^
BoABD OF AaBictTLTUKB — continued,
instructions issued by, for effecting exchanges, partitions, &c.,
445.
instructions issued by, as to regulation and indosure of
commons, 459.
minute of, as to copyhold enfranchisement, 466.
scale of enfranchisement compensation framed by, 473.
scale of allowance to valuers framed by, 476.
form of order by, extending time for appointment of vainer
or umpire, 483.
appointment of valuer or umpire by, 484.
decision of, as to enfranchisement compensation, 488.
appointment of trustees by, 489.
fees taken by, in respect of transactions under Copyhold and
Inclosure Acts, 452, 493.
fiOND-LAlO), 131.
BOBDEB DiSTBICTS,
tenure-services customary in, 5.
evidence of customs in, 343.
BOBOUGH,
customs in ancient, 7, 8.
how individual burgess may claim benefit of a right belonging
to corporation of, 260.
effect of alteration of limits of, on claims by freemen of, 260.
BOBOUaH-ENOLISH, OtTSTOM OF DESCENT IN,
its nature, 7.
may exist in ancient demesne manors, 7.
ancient boroughs, 7.
why so-called, 8.
when running with land, 127, 129.
extinguished oy enfranchisement of copyhold, 127, 129.
what commonly implied by, 127.
proper meaning of term, 128.
where chiefly found in copyholds, 129.
varieties of, 129, 130.
** junior right " is name given to a variety of, 129.
instances of customary descent more extensive than, 129 — 132.
restriction of custom, 132, 133.
effect of Inheritance Act, 1833, on, 133, 142, 143.
when females preferred, 133.
to what estates custom extends, 135.
how descent according to, may be altered, 136.
rights of entry may be subject to, 137.
what hereditcunents may be subject to, 137, 138.
does not extend to tithes, 138.
whether it extends to rentcharges, &c., 138, 139.
extends to equitable estates, resulting trusts, &c., 139.
does not extend to money representing land, 140.
who is youngest heir according to, 140.
posthumous son may take as heir according to, 140.
not affected by Statute of Distributions, 142.
qq2
596 1ND£X.
BOBOnQH-ENOLISH, CuSTOM OF DESCENT IN— COjrftnMCd.
when reversion will descend according to, 143.
representation of parent by issue in, 143--145.
effect of, on limitation to heirs, 145, 146.
effect of abolition of immediate inheritance between brothers
on, 146.
half-blood now admitted to succession in, 146, 147.
inconveniences of, 147.
Botes. See Estovers.
BOUNDABY,
of manor, presumption as to, 12.
of intermixed lands, usual conditions of sale as to, 75.
how ascertained, 120.
of lands belonging to ecclesiastical corporation, how ascertained,
121.
alteration of, may occasion forfeiture of copyhold, 228.
tenant's dutv as to, 228.
effect of enfranchisement on, 228, 417.
when commission to distinguish, will issue, 228.
of manor may be proved by acts of ownersliip, 328.
reputation, 329.
verdict of jury, 332.
cannot be proved by award of arbitrator, 332.
may be proved by perambulatious and ancient leases, 335.
of land to be enfranchised, how valuers to determine, 391.
when Board of Agriculture are to
determine, 391.
BXJILDINO SOOIETT,
admittance of, to copyholds on mortgage, 102.
fines payable on admittance of, 103.
discharge of mortgage belonging to, 103.
BxTBGAaB, Tenube in,
nature of, 6, 7.
where found to exist, 7, 326.
customs of descent in, 7, 128, 129.
as to dower in, 8, 158.
curtesy in, 168.
evidence of, 326.
BtJBiAL Gbound,
conveyance of portion of waste by lord for, 298.
enfranchisement of land acquired for, 439.
Bye-Laws,
homag^ jury may make, for regulation of common, 256, 307.
apportionment of compensation for rights of common according
to stints fixed by, 293.
for regulation of common cannot be made in court leet, 302.
when and to what extent tenants of
manor bound by, 307, 308.
what may be comprised within, 307,
308.
do not bind strangers, 308.
i^DBx. 597 .
Cambbidoe, IJniyebsitt of, power of, to. enfranchise copyholds,
434, 435. See University EstaUs,
Oafixulab Estates. See Episcopal and Capitular EikUes Acts.
Oattle-gate,
what it is, 16, n. .
distinct from rights of common, 16.
may be copyhold, 16.
Oebttficate,
by steward, of enrolment of licence to demise, 37.
of discharge of mortgage, 103.
of charge of enfranchisement compensation, by Board of Agri-
culture, 406.
form of, 406.
effect of, 406.
by Board of Agriculture as to enfranchisement expenses, 408,
409.
Chabqe,
by tenant in taU, effect of, in barring entail, 30.
lands subject to separate, may be exchanged, &c. under Inclo-
' sure Acts, 115, 119.
when not affected by exchange, &c. under Indosure Acts, 116,
120, 449, 450.
of enfranchisement compensation, how effected, 406, 407.
priority of, 406, 407.
maybe taken by agricultural
loan compames, 407.
of consideration and expenses by lord when purchasing tenant's
interest, 407.
on manor, transfer of, by Board of Agriculture, 408.
of compensation payable to steward on enfranchisement, 414.
Chabitable Tbttsts,
of copyhold to be specified in separate deed, 61.
enrolment of deed specifying, 61.
payment of enfrancnisement compensation where manor held
on, 404, 405.
Acts relating to, 404.
Chattel Intebests,
term of years, 34, 35.
tenancy at will, 37.
tenancy at sufferance, 37.
tenancy by elegit, 37.
Ohika Clay, ownership of, 234.
Chbist Chubch, Oxfobd,
not an ecclesiastical corporation for purposes of Copyhold Acts,
368.
to be deemed a college of the TJniyersity of Oxford for enfran-
chising purposes, 435.
See also University Estates,
Chubch, conveyance of portion of waste for erection of a, 298.
598 INDEX.
ChTTRCH BtTILDINO AOTfl,
enfranchisements by limited owners, &c., under, 438.
powers of £cclesiafltical Commissioners to take lands under,
438.
Chuboh Estates Oommissionebs,
consent of, necessary to exchanges and eafranchisements by
ecclesiastical corporation, 117, 429.
must confirm enfranchisement deed by ecclesiastical corpora-
tion, 430.
powers of, as to application of enfranchisement consideration,
430.
as to apportionment of rents, fines, &c., on enfran-
chisement, 433.
Chubch Lands, survey of, 334.
Ohtthchtabd. See Burial Ground.
OtAY,
copyholder not entitled to take, from his own tenement, 234.
customary rights of taking, 250.
lord's right to, not affected by compulsory enfranchisement,
416.
CoAi,,
right of lord to, 232, 233.
interest of copyholder in, 232 — 235.
copyholder may have ri^ht to, by special custom, 235, 236.
customary rights of taking, 250.
lord's right to, not affected by compulsory enfranchisement,
416.
Coke, Losd,
subjects of copyhold tenure according to, 13, 14.
explanation of moveable fee simple, 15.
distinction between seneral and particular customs, 18, n.
on voluntary grants by lord, 47, 48.
on surrenders, 60.
on statutes applying to copyholds, 122 — 124.
on custom, 138.
on admittances on descent, 148, 149.
on fines, 171.
on forfeiture for waste, 226.
on lord's claim to common, 274.
on distinction between court baron and customary court, 303.
on the office of steward, 309.
College Estates. See University Estates,
Committee op Lunatic,
lord cannot make copyhold grante, 48, 49.
powers of, under Lunacy Act, 1890... 55, 56.
admittance of, 71, 155.
powers of, under Copyhold Acts, 377, 381, 382.
Common,
(a) lord's righte over,
nature of, 272, 273.
determined by usage, 273.
instances of, 273, 274, 275.
INDEX. 599
OoKHOK— continued.
(a) lord's rights over — corUinued,
to build on, 275.
remedies against stranger taming cattle on, 275.
tenant surcharging, 276.
lord may approve under Statute of Merton, &o., 276 — 278.
ascertainment of compensation for, on compulsory taking
of common, 295.
power of lord to convey portion of common for site of
church, school, &c., 298, 299.
(6) inclosure of,
destroys common of vicinage, 252.
under statutes as to approvement, 276 — ^278.
requisites of statutory inclosure, 277.
by custom without consent of homage, when, 279.
under Hcenoe from lord, 279, 280.
by lord with consent of homage under custom, 280 — 282.
how made under custom, 282.
custom for lord to make, at discretion void, 282.
when consent of freehold tenants necessary to, 283.
when tenants may make, 284, 285.
by encroachment, 285, 286.
by agreement, 286.
by local Inclosure Acts, 286, 287.
under Inclosure Acts, 1845 to 1882... 287— 290.
proceedings for, now regulated by Commons Act, 1876. . .289.
not favoured as against regulation of a common, 289.
by compulsory acquisition under Lands Clauses Consoli-
dation Act, 292—296.
under statutes to promote growth of timber, ftc, 296 — 298.
by conveyance of portion under 51 Geo. III., c. 115. ..298.
under School Sites Acts, 298.
under Literary and Scientific
Institutions Act, 1 854 . . . 299.
of portion by guardianB of the poor, 299.
Board of Agriculture may order production of documents
relating to, 442.
instructions issued by Board of Agriculture as to, 459.
form of advertisement as to, 464.
form of application for Provisional Order as to, 465.
(c) regulation of,
procedure to obtain, provided by Commons Act, 1876. . .289.
Provisional Order for, contents of, 289.
when b^e-laws for, may be made b^ homage, 307.
instructions issued by Board of Agriculture as to, 459.
form of advertisement as to, 464.
form of application for Provisional Order as to, 464.
Common, Bights of,
when the subject of copyhold tenure, 14, 17, 18.
to be distinguished from separate shares in common pasture, 16.
who may be entitled to, 248.
how copyholders may claim, 248, 249.
how fr^hold tenants claim, 249, 257.
various kinds of, claimable by copyholders, 249, 250.
600 XNDKX.
Common, Bights of — continued,
leafions for aUowance of, 250, 251.
common appendant cannot be claimed by copyholders, 251.
who may claim, 251, 257.
common of yidnage cannot be claimed by copyholders, 252.
requisites of, when customary, 252 — 254.
when appurtenant, 254, 255.
when riffhts may be sold or let, 255, 262.
may be limited m various ways, 255, 259.
instances of limitations, 255, 256.
whether houses built on ancient sites may claim, 256, 257.
what claimable by freehold tenants, 257, 258.
in gross, what are, 259.
how created, 259.
by whom claimable, 259.
how to be claimed, 259, 260.
how corporation may claim, 260.
cannot be claimed by inhabitants unless incorporated, 260.
by fluctuating body of persons, 260, 261.
what incidental rights included m, 262, 263.
abatement of obstructions to, 263, 285.
actions for disturbance of, 264 — ^266, 295.
when representatiye suits may be brought for, 266, 267.
extinguished by unity of seism, 267, 268.
when capable of being reyiyed, 268.
effect of enfranchisement of copyhold at oomn^on law, 268»
356.
under Copyhold Acts, 269, 415.
what wiU amount to a re-grant of, 269.
effect of release of, 269, 270.
non-user of, 270.
release of, when presumed, 270, 271.
extinguishment of, by destruction, ftc, of tenement, 271.
by seyerance of the right, 272.
by exhaustion of product, 272.
by indosure of the waste, 272, 284, 286.
in what sense lord may be said to haye, 274.
effect of approyement of waste on, 276, 277, 284.
of licence by lord to inclose waste, 279, 280.
whether ^^rantee of waste is entitled to, 284.
when extinguished by encroachment on waste, 285.
adjustment of, under Inclosure Acts, 287 — 290.
in metropolitan commons, how regulated, 290.
in common fields, Acts relating to, 290 — 292.
apportionment of compensation for, under Lands Clauses Con-
solidation Act, 292, 293.
application of compensation for, under Commonable Bights
Compensation Act, 294, 295.
compensation for, under inclosures to promote growth of
timber, 296, 297.
when extinguished oyer portion of waste conyeyed for certain.
public purposes, 298, 299.
cannot be regulated by court-leet juir, 302.
homage may make bye-laws for regulation of, 307, 308.
Common, Biqhts of — continued,
proof of, when claimed by custom, 343.
under Prescription Act, 1832... 343.
effect of interruption of enjoyment of, 343, 344.
Common Appendant. See Common, Rights of, and Ptuture.
Common Fields,
share in, may be copyhold, 15.
exchange of lands in, 111.
intermixed lands in, 111, 121.
commonable lands in, 249.
statutory proyisions as to cultivation, indosure, &c., of, 290,;
291.
in neighbourhood of London, &c., 291, 292.
Common Fields Inclosttbe Acts,
provisions of Act of 1773... 290.
Act of 1836 (Lord Worsley's Act), 291.
what lands exempt from, 291, 292.
Common Socage. See Tenure,
Commonable Cattle,
what are, 255, 256.
common appendant confined to, 257.
Commonable Land,
distinct from intermixed lands, 121.
in common fields, 249.
subject to common of vicinage, 252.
limits in time of enjoyment of, 256.
may be inclosed under Liclosure Acts, 288.
how affected by Common Fields Liclosure Acts, 290, 291.
compulsory acquisition of, 292.
compensation for, how ascertained and apportioned, 292 — 294.
conveyance of portion of, for site of church, school, &c., 298,
299.
Commonable Bights Compensation Act, 1882,
apportionment of compensation money among commoners
under, 294, 295.
powers of committee of commoners under, 294.
Commoneb,
has no estate in the land, 261.
has right of entry, 261.
cannot take other product of the soil, 261.
when entitled to assign his rights, 262.
incidental rights of, 262, 263.
abatement of obstructions by, 263, 264, 285.
cannot cut trees on common, 263.
action against lord by, 264.
cannot maintain action of trespass, 264.
action of damages for disturbcuice of rights by, 264.
action against another commoner or stranger by, 264 — 266,
285, 295.
when entitled to distrain, 266.
when representative suits may be brought by, 266, 267.
602 INDEX.
O0MMONSB8, Committee of,
powers of, under Lands Clauses Consolidation Act, 292, 293.
under Inclosure Acts, 293.
under Commonable Bights Compensation Act, 294.
Commons Act, 1876,
regulation and inclosure of commons under, 289.
Sroyisions of, as to commons situate within towns, 289.
efinition of •* town " in, 289, 290.
explanations by Board of Agriculture on, 459.
Commons, Metropolitan, Acts relating to, 290.
Commutation,
of rural services into money rent, 3.
of manorial rights, effect of, on freebench, 158, 364.
on customary curtesy, 168, 364.
of suit of court into money payment, 197.
of heriot-custom into money payment, 201.
of customary services into quit-rent, 211.
of manorial rights under Copyhold Act, 1841... 360, 361.
who may enter into agreement for, 361, 362.
what agreement for, may contain, 362.
Eowers of Board of Agriculture, 362, 363.
ow effected, 362.
consideration for, 362, 363.
charge of consideration or value for, 363.
commencement of, 363.
supplemental, 363.
apportionment of fines in, 363, 364.
remedies of lord for fines, 364.
effect of, on tenure, 364.
reservation of minerals in, 364.
grants of easements for minerals, 364, 415.
expenses of, how borne, 408.
charge of expenses of, 410.
compensation payable to steward on, 412,
414.
consent to agreement by ecclesiastical cor-
poration for, 428.
Compensation,
for purchase, &c. under Defence Acts, how to be paid, 105, 106.
for purchase, &c. under Lands Clauses Consolidation Act,
ascertainment of , 108.
application of, 108 — 110.
to lord in Heu of forfeiture, 223.
to tenant for wrongful working of minerals, 235.
to commoner for disturbance, 264 — 266.
for purchase of commoners' rights, how apportionable, 292 —
294.
for commutation of manorial rights, 362, 363.
for enfranchisement, how ascei&inable, 385 — 387.
receipt by lord for, 402, 403.
if loni refuses to take, 403.
payment of, where limited owner, 403.
application of, when in Court, 403, 404.
INDEX. 003
for enfranchiflement, payment of, where manor held on charit-
able trust, 404, 405.
where a corporation is lord of
manor, 405.
lord's remedies to recover, 405.
charge of, on land, 406, 414.
to steward on commutation and enfranchisement, 412 — 414.
Condition, Estate upon, ^ .n. .. . ^ ^ Lj ^^
conditional fee, nature of, 25. J*^ ^ " ^'^^^ ^ "
in copyholds which cannot be entailed, 22, 26.
- enlargement of, 26. -
condition, descent of, to heir at common law, 136, 137.
to customary heir, 137.
condition, breach of, fine on entry for, 184.
Conditional Sukbbndeb,
mortgage of copyholds by, 67.
when admittance taken on, 67, 79.
discharse of, 67, 81.
effect of admittance on, 67, 68, 80, 81.
covenant to make, 79.
covenants for title on, 79.
refusal to perform covenant for, 79.
when deemed fulfilled, 79.
form of, 499.
See also Dormant Surrender.
Conditions of Sale,
in covenant to surrender, what usual, 73.
as to customs, 75, 77, 78.
as to boundaries, 75.
as to identity, 75, 76.
as to costs and expenses, 76.
as to surrender by attorney, 77.
as to grants from waste, 77.
as to production of documents, 77
as to tenure, 78.
mention of manorial incidents in, 78.
CONSTKTTCTIVB TkTTSTS,
when not within Statute of Frauds, 22.
importance of, in copyholds for lives, 23, 42.
on renewal of grant oy trustee, 44, 45.
on covenant to surrender for value, 67, 73, 74.
Contingent Estates,
general rules as to, in copyholds, 21.
effect of destruction of the particular estate on, 21.
devise of, 90.
conveyance of , 94.
descent of, 136.
fines payable for, 185.
CONTBIBmON,
to fine, when assessed, 186, 187.
how compelled, 188,
604 IHDEX.
CONVEiniONAEY ESTATES IN DuCHY OF OOBirVALL,
nature of, 44, 45.
enfrandusement of, 428.
Conveyance,
of copyholds, general rule, 2.
of tenant-right estates, 6.
of tenements in ancient demesne, 7.
of demesnes, effect of, 12.
of manor, effect of, 13.
of the seignory of a copyhold, effect of, 13.
usual form of, in copyholds, 46, 50, 82.
when common-law conveyances allowed, 13, 50.
usual form of, in customary freeholds, 50.
effect of unauthorised form of, in copyholds, 53.
of equitable interest or estate, 80, 93.
by deed, when allowed, 92, 93.
by married womau, 93.
of contingent interests, 94.
special form of, in Taunton Deane, 78.
in Yetminster, 79.
See also Conveyance, Statutory,
Conveyance on Sale,
how usually effected, 73.
covenants for title on, 73.
practice when copyholds and freeholds sold together, 74.
whether covenants for title run with land, 74.
purchase-money, when to be paid, 75.
steward's duty as to surrender, 75.
what searches to be made, 75.
usual and necessary conditions, 75.
expenses payable by vendor, 76.
by purchaser, 76.
production of documents, 77.
requisitions as to manorial customs, 77.
rules as to specific performance, 77, 78.
conditions as to nature of tenure, 78.
Conveyance, Statutoey,
private Act of Parliament may operate as, 96, 110.
vesting orders under Trustee Acts, 96 — 100, HI, 118.
orders under Liuiacy Act, 1890. . 102.
Building, &c. Societies Acts, 102, 103.
deed enrolled under Settled Land Acts, 103, 104.
deed under School Sites Acts, 105.
certificate under the Defence Acts, 105, 106*
deed under the Lands Clauses Consolidation Act, 1845.. 106 —
110, 295, 296.
deed of appointment under the Bankruptcy Acts, 110.
deed of exchange, of copyholds in conmion fields. 111.
by incumbents of ecclesiastical benefices, 111.
award of valuer under the Inclosure Acts, 112, 118, 120.
order of the Board of Agriculture, 113, 119, 120.
deed of exchange of charity lands, 117.
under Ecclesiastical Commissioners Acts, 117.
order of partition in the Chancery Division, 118.
INDEX. 606
OONVEYANOIWO AND LaW OF PeOPEBTY AOT, 1881,
as to conyeyance of manor, 13.
as to appointment by married woman of an attorney, 57, 58.
as to deed of oonyeyance by mortgagee of copyholds seUing
under, 81.
repeal of, as to devolution of trust and mortgage estates in
copyholds, 101.
as to production of title to enfranchise, 356.
as to recovery of rent-charges, 400.
COPABOENEBS,
nature ef their estate, 21.
conveyances and releases by, 22, 187, 190, 191.
admittance of, 73, 156.
fines and fees payable by, 183, 190, 191, 322.
fines payable on conveyance by, 187.
suit of court by, 198.
heriot-custom on alienation by one, 202.
relief on death of one, 210.
OoPBOLiTES, ownership of, 234.
CoPTHOLD Acts,
dates and short tities of, 359.
fees of Board of Agriculture for transactions under, 493.
(a) Act of 1841,
as to grants by lord or steward, 49.
as to enrolment of surrenders, &c., 65.
as to holding of customary courts, 303, 304, 305.
. definition of ** steward" in, 310.
as to general and scheduled commutations, 360, 361.
definition of *' lord " in, 366.
effect of commutations and enfranchisements under, 364,
374,414.
steward's compensation on conmiutation and enfranchise-
ment under, 412.
agreements by ecclesiastical corporation for commutation
and enfranchisement, 428.
powers of Board of Agriculture to determine disputes as
to manorial rights, 440.
reference to arbitration of disputes, 441.
extracts from, 519 — 522.
(6) Act of 1843,
consideration for commutations and enfranchisements, 362,
369.
extends definition of ''lands'' in Act of 1841... 368.
(c) Act of 1844,
consideration for commutations and enfranchisements, 363.
{d) Act of 1852,
as to custody of court rolls, 316.
as to mortgage enfranchising, 367.
as to extinguishment of claims to heriots, 374.
makes enfranchisement compulsory, 375.
as to expenses uf compulsory enfranchisement, 409.
steward s compensation for enfranchisement, 412.
And see pp. 523—539.
606
INDEX.
Copyhold Aots — continued.
(c) Act of 1858,
commenoement of Tent-cHaTgee, 372.
charge of enfranohiBemeiit conrnderation on land, 373.
compulsory extinguishment of heriots, &o., 374, 379.
commencement of enfranchisements, 398.
charge of enfranchisement consideration, 406.
And see pp. 540 — 555.
(/) Act of 1887,
admittance by attorney, 70.
inclosures from wastes as copyholds, 279, 280*
custody of court rolls, 316.
notice to tenant of right to enfranchise, 323.
lord's ri^ht to escheat, 354.
declaration of title by lord, 366.
definition of "lord," 366.
of " tenant," 367.
receipt for enfranchisement compensation, 370, 371.
days of payment of rent-charges, 372, 399.
charge of enfranchisement compensation and expenses,
373, 406, 407, 411.
compulsory extinguishment of manorial rights and in-
cidents, 374, 375, 379.
commencement of compulsory enfranchisement, 398.
commencement of enfranchisement rent-charge, 399.
remedy for recovery of expenses, 409.
steward's compensation, 413.
enfranchisements in manors where deriyative interests
entered on court rolls, 420 — 423.
And see pp. 556 — 571.
Copyhold CoM3assiON£BS. See Board of AgricuUwre.
Copyhold TBNtTRB,
definition of, 1, 2, 5.
how distinguished from freehold tenure, 2, 324.
how connected with tenure in villeinage, 3.
varieties of, 5.
in ancient demesne manors, 7.
subjects of, 13—18, 280.
customs regulating, varieties and requisites of, 18 — 20.
evidence of, 338—340, 342.
whether encroachment by copyholder is of, 285.
estates in, nature of, 21 — 45.
may be assets for payment of debts, 66.
may be taken in execution, 66.
what statutes applicable to, 121 — 125.
customary desceut of, 126 — 147.
incidents attaching to, 157, 166, 169, 170, 196 — 198,
210, 211, 220, 223—225, 228, 232.
evidence of, 324.
extinguishment of, 349 — 351.
suspension of, 350.
enfranchisement of, at common law, 352.
under Copyhold Acts, 359 — 418, 420 — 123.
INDEX. 607
Copyhold Tenxtre — continued,
enfranchisement of, under other Acts, 418, 423, 428, 434, 437.
effect of commutation of manorial rights on, 364.
GOPTHOLDEBS,
why so cidled, 1, 2.
rights of, against lord in time of Hen. YI., 4.
Edw. IV., 4, 6.
common law conveyances by, 13, 92.
may be tenants in common of woods, underwoods, fto., 15, 16.
estates of, 21 — 45.
how entitled to convey or devise, 50 — ^95,
what statutory conveyances may be used by, 96 — 121.
incidents attaching to estates of, 126 — 147, 157, 166, 169, 220,
223—225, 228—232.
liabiHties of, 170, 196—198, 210, 211.
mav claim rights of oonmion by custom, 249.
indosures from the wastes by, 284 — 286.
duties of, in a customary court, 304.
rights of, as to court rolls, 312 — 316.
to commute manorial rights, 361, 374.
to enfranchise, 365, 375, 378.
Copyholds of Inheritance,
nature of estates in, 25.
absolute estates in, 25.
conditional fee in, 25, 26.
qualified fee in, 26.
estates-tail in, creation of, 26.
bar of, 27—32.
estates for life in, nature and creation of, 32.
estates pur autre vie in, 33.
Seneral and special occupancy in, 33, 34.
escendible freeholds in, 34.
quasi entail in, 34.
terms of years in, 34 — 37.
other chattel interests in, 37.
special customs in, as to ownership of trees and minerals, 235.
■
Copyholds poe Lives,
doctrine of resulting trusts in, 23, 42.
nature of estates in, 37.
where chiefly found, 37.
description of tenure, 37, 38.
varieties of, 39, 40.
customs of barring lives by first taker, 40, 41, 345.
what estates may oe granted in, 41, 42.
right of renewal in, 43, 344.
nomination of successor in, 43.
quasi copyholders in fee, who so called, 43.
preferential claim to renewal in, 43.
renewals by persons having limited interests in, 44.
heir of tenant in, rigj^hts and estate of, 74, 149.
freebench of widow in, 159.
when tenants in, entitled to trees and minerals, 235, 236.
enfranchisement of, at common law how effected, 354, 365* .
608 INDEX.
Copyholds fob Lives — continued.
what tenants in, may agree to enfranchise under Copyhold
Acts, 1841 and 1843... 368.
compulsory enfranchisements in, when competent, 368, 376,
380.
right of renewal in ecclesiastical manors, ascertainment of, 117,
368,429. '
*
Copyholds fob Yeabs,
nature of, 44.
when renewable, 44.
where chiefly found, 44.
doctrine of resulting trusts in, 45.
renewals of, by persons hayine limited interests, 45.
evidence as to right of renewal in, 344.
Copyhold Acts, 1841 and 1843 extend to, 368.
compulsory enfranchisements in, when competent, 368, 376,
380.
right of renewal in ecclesiastical manors, ascertainment of, 117,
368, 429.
CoBxwALL, Duchy op,
enfranchisements in, how effected, 427, 428.
enrolment of enfranchisement deed, 428.
COBPOBATION,
lord may refuse to admit, 51.
deed poll by, under Lands Clauses Consolidation Act, 1845...
107.
may claim right of common in gross, 259.
right of pasturage may belong to, 259.
how burgess may claim benent of right of common belonging
to, 259, 260.
appointment of steward of manor by, 309.
may appoint agent for enfranchisement purposes, 377, 381.
payment of eniranchisement compensation to, 404, 405.
enfranchisement by, for redemption of land tax, 437.
See also Ecdeaiastical Corporation,
Costs,
of vendor, practice as to, 76.
of purchaser, practice as to, 76.
stipulations as to, 76.
of Board of Agriculture in inquiries, &c., under Copyhold or
Liclosure Acts, 259, n., 422, 441.
of commutation and voluntary enfranchisement, 408.
of compulsory enfranchisement, ^nerally, 409.
if lord is a trustee, 409.
if tenant is a trustee, 410.
of disputes as to title in enfranchisements, 411, 412.
of redemption of rent-charge, 412.
of Board of Agriculture on taxation of enfranchisement ex-
penses, 442.
CoTMAN Land, descent of, 132.
0OX7AOEB8, rights of, in common fields, 291.
INDEX. 609
CoTJBT Bolls,
evidenoe of copyholders' titles, 1, 2, 313, 345.
not evidence in tenant right estates, 6.
enrolment of disentailing deed on, 28 — 30.
of licence to demise by lord of settled manor, 37.
description of tenements in, to be used in surrenders, 52.
enrolment of uses of surrender on, unnecessary, 60, 313.
of surrenders on, effect of, 65.
of acknowledgment of satisfaction of mortgage, 67.
of covenants of title on, unnecessary, 73.
steward's duty as to copies of entries on, 75, 313.
usual covenants to produce copies of, on sales, 77.
enrolment of devise on, 85.
of deed of conveyance by tenant for life under
Settled Land Acts, 104.
of deed of conveyance under Lands Clauses Con-
solidation Act, 107.
of deed of exchange of copyholds in common fields,
111.
of assessment of fine on, unnecessary, 174.
tenant not oblie;ed to take copy pf, 313.
when court wiU reform entries in, 313, 347.
who entitled to custody of, when in use, 314.
when and to whom inspection of, allowed, 314 — 316, 356, 417.
when Board of Agriculture may fix fees for inspection of, 316,
417.
custody of, when all lands enfranchised, 316, 417.
when Master of the Bolls may fix fees for inspection of 316.
effect of presentments in, as evidence, 334.
when evidence as to certainty of fines, 344.
copies of, stamp duty on, 346, 578.
when admissible as evidence, 347.
draft of entry in, admissible as evidence, 347.
deed of enfranchisement should be entered on, 359.
award of enfranchisement to be entered in, 397.
steward's fee for inspection of, after enfranchisement, 316,
413.
CouKTs, Manorial,
now rarely held, 300.
holding of, not necessary to prove existence of manor, 327.
evidence of proceedings m, 348.
extract from Close Boll of 18 Hen. III. as to holding of, 507.
(a) c6urt-baron,
a necessary incident to every legal manor, 9, 300.
duties of freehold tenants in, 300, 304.
steward is registrar of, 300.
what necessary to constitute, 300.
ancientiy held every three weeks, 300.
when usually held now, 300.
lord may be compelled to hold, 300.
not to be held too freouently, 300.
when right to hold will be lost, 300, 301, 336.
where it should be held, 301.
E. R K
610 INDEX.
CoTTBTS, MAJSfOBUii— continued,
(a) oourt-baron — continued.
customary court sometimes called the court-baron, 303.
judgment in, evidence of, 348.
form of style of, 496.
of presentments in, 497.
{b) court-leet,
what it is, 301.
how created, 301.
how far useful now, 301.
antiquity of, 301.
view of frank-pledge formerly annexed to, 301.
who liable to attend, 301, 302.
usual mode of summoning jury for, 302.
duty of steward of manor in, 302.
usual number of jury in, 302, 306.
effect of evidence of non-user, 336.
form of style of, 496.
presentment in, 496.
(f) customary or copyholders' court,
necessary in manors where there are copyholders, 10, 12.
when holding of, necessary, 6d.
proclamations at, when no copyholders present, 153, 220.
sometimes called the court-baron, 303.
jury in, sometimes called homagers, 303.
where it should be held, 303.
proviedons of Copyhold Act, 1841, as to holding of, 303,
304, 305, 312, 519—521.
who is judge in, 304.
duties of the steward in, 304.
duties of the copyhold tenants in, 304.
notice required for holding of, 305.
how usually summoned, 305.
procedure on assembling of, 305.
usual practice as to formation of jury in, 306.
whether verdict of jury in, final as to customary indosure,
306.
charge to jury in, 306.
duties of jury in, 307.
form of style of, 496.
of presentinents in, 497.
of proclamations in, 498.
of surrenders, &c., in, 499 — 503.
{d) court of survey,
presentments at, how far evidence, 333.
requisites of, 333,
Covenant,
to renew under-lease, effect of, 44.
to surrender, when enforced, 67.
cannot be enforced by lord, 72.
contents of, in case of sale, 73.
contents of, in case of mortgage, 79, 80.
for title contained in covenant to surrender, 73.
whether running with the land, 74, 123.
INDEX. 611
Covenant — continued.
for title, who may sue upou, 74.
to surrender, no fine due to lord on, 74, 190.
for production of court-roUs, when to be made, 77.
for further assurance, no fine due on, 190.
to renew lease, not a forfeiture, 229.
in leases, effect of enfranchisement on, 374, 415.
Cows-OEAJBS to be distinguished from rights of common, 16.
Cbeditobs,
copyholds not within the statute for protection of, 66, 122.
may take copyholds in execution, 66, 123.
surrender mi^ht be supplied in aid of, 86.
may take anaent demesne lands in execution, 326.
Cbown,
ancient demesne of the. See Ancient Demesne,
grant by, of licence to disgavel, 9.
creation of courts a branch of prerogatiye of, 10, n. .
to what prerogative of, does not extend, 10, n.
franchises are branches of prero^tive of, 11, n.
merger of franchises in prerogative of, 11, n.
no Reheat of copyholds to, 221.
grant by, of right of free-warren, 238.
to estrays, 240.
to waif, 241.
to take wreck, 242.
to hold fairs and markets, 244.
of frank-foldage, 246.
to hold coiirt-lcct, 301.
may grant in free-alms, 325.
when enfranchisements presumed against, 219, 337.
Crown Manors,
tenants in privileged villeinage found in, 4.
mandamus to compel admittcuice does not lie in, 72.
appointment of steward in, 308.
parliamentary surveys of, 334.
enfranchisements in, how effected, 423.
enfranchisements under Crown Lands Acts in, 423 — 42.).
ascertainment of compensation, 424.
payment of compensation, 424.
enrolment of enfranchisement deed, 424, 425.
effect of, 425.
power of tenant to mortgage for, 425.
priority of mortgage for, 425.
enfranchisements under Copvhold Acts in, 425—427.
payment of compensation when Crown interest rever-
sionary, 425.
how compensation to be applied, 426.
how enfranchisement effected, 426, 427.
enrolment of enfranchisement deed, 427.
how enfranchisement effected where manor held in joint
tenancy with the Crown, 427.
trustee for Crown in enfranchisements to be indemnified, 427.
Rr2
612 INDEX.
CUBTBSY, OfSTOMABY,
when widower may have, 149, 167.
definition of, 166, 167.
how it differs from curtesy in freeholds, 166..
out of what tenements, 167.
in copyholds for lives, 167.
whether assignment necessary, 167, 168.
how barred, 168.
husband's possession will be referred to, 168.
in gavelkind lands, 8, 168.
in bur^ge, 168.
in ancient demesne, 168.
in commuted copyholds, 168.
destroyed by commutation and enfranchisement, 358, 364, 414.
CuBTBSY OF England, estate by the, 166.
Custom,
constitutes title to copyholds, 1.
may modify title to freeholds, 2, 7, 8.
extmguished by enfranchisement of copyhold, 9, 127, 358, 414.
when running with the land, 9, 127.
may be general or particular, 18, 18, n.
requisite of particular, 19, 252.
how far affected by Acts of Parliament, 19, 20, 121—125, 341,
342.
may interpret customary assurances, 23, 59, 62, 345.
determines amount and nature of copyholder's estate, 24, 26,
32, 41, 49, 344.
may warrant creation and bar of estate-tail, 26, 27, 346.
may extend principle of occupancy to copyholds, 33.
as to leasing, general, 34, 229.
instances of special, 35.
as to bar of estates in copyholds for Uves by first taker, 40, 41,
42, 345.
as to renewal of copyholds for lives, how proved, 43, 174, 344.
as to nomination of successor in copyholds for lives, 43.
of preference in renewal in copyholds for lives, 44.
as to renewals in copyholds for years, 44.
as to re-grantiug escheated tenements as copyholds, 46, 47.
for lord to make voluntary grants, construction of, 48.
to notice trusts in customary assui*ances, 51, 61.
that steward shall prepare all surrenders, 51.
as to surrender by an mfant, 54.
married woman, 56.
attorney, 67.
for avoidance of surrender, unless admittance within certain
time, 72.
to compel admittance, lord may waive, 72.
of remainderman, 73.
enquiry as to, on sale of copyholds, 75, 77, 78.
to compel mortgagee to take admittance, 80.
as to conditional surrenders to such uses as surrenderee may
appoint, 81.
as to devises, 82, 83.
IKDEX. 613
Custom — continued,
to take proyisional admittance, 90.
of descent, to be strictly construed, 126.
may affect freeholds, 126.
vanetiesof, 127—135.
to what estates it extends, 135.
alteration of, 136.
may extend to manors, advowsons, rents, services,
&c., 137, 138.
does not extend to tithes, 138.
when extending to equitable estates, 139.
operation of, in ascertaiument of heir, 140, 141.
not affected by Statute of Distributions, 142.
how affected by Inheritance Act, 1833... 142— 147.
to forfeit or seize qiiousque for neglect of admittance, 152, 153.
as to freebench, 158 — 166.
as to curtesy, 166 — 169.
as to guardianship, 169, 170.
as to nnes on admittance, 170.
as to arbitrary fines, 177.
that no fine is due from heir, 182.
as to fine payable by widow or widower, on admittance, 185.
by remaindermen, 185.
as to fine for licence to alienate, 195.
as to payment of, and remedies for, heriots, 200—204.
as to multiplication of heriots, 204.
as to reliefs, 210.
as to quit-rents, 211.
effect of interruption of, 218.
as to forfeitures, 223, 224.
effect of lease not according to, 230.
may restrict rights of estovers, 231.
as to ownership and possession of minerals and trees, 232, 233,
235, 236, 238.
provisions of Prescription Act as to claims by, 236.
what evidence necessarjr to establish, 236, 338, 339, 340.
province of jury as to finding for, 237.
to erect booths on wastes of manor during fair, 245.
right to take profits from stranger's land not claimable by, 248.
for copyholders to have right of common, 249.
as to rights of common, 249, 250, 252—254, 256.
for homage to make bye-laws regulating common, 256, 307.
lord's ri^ts over manorial wastes determined by, 273, 275,
276.
for lord to make grants of the wastes, 279 — 284.
to inclose common at discretion void, 282, 283.
for tenants to make inclosures from wastes, 284, 304, 305.
for sevendty owner in common field to inclose, 291.
as to holding of manorial courts outside manor, 301, 303,
as to swearing jury in court-leet, 302.
for steward to make grants of the wastes, 31 1.
for steward to prepare all surrenders, 312.
as to feed to be taken by steward, 317 — 321.
reputation admissible to prove, 339.
614 INDEX.
Custom — coivtinued,
when exercise of right should be shown to prove, 339, 340. ^
to take admittance simultaneously to all tenements acquired
under one disposition, 340.
requisites of user as evidence of, 340 — 342.
is a local law, 19, 340.
effect of non-user on evidence of, 341.
what is a reasonable, as between lord and tenants, 341, 342.
cannot depend on uncertainty, 342.
in one manor, how far evidence of custom in another, 342, 343.
effect of extinguishment of tenure on, 351.
commutation under Copyhold Acts on, 364.
question as to, in enfranchisements, reference of, 395.
Custom of Husbandky, tenure by, 5, n.
Customary Court. See Courts, Manorial (c).
Customary DESOEirr. See Descent
Customary Freeholds,
nature of, 2, 5.
differ from freeholds modified by custom, 2, 3, 6.
in ancient demesne manors, 7.
how usually conveyed, 50.
manorial incidents affecting, compulsory extinguishment of,
374, 379.
Customary Guardia^tship. See Ouardianship.
Customary Mai^or,
may be held b^ copy of court-roll, 13, 14.
its nature and incidents, 14, n.
may be subject to custom of descent, 137.
Customary Beliefs. See Belief.
Customary Services. See Services.
Customary Tenants,
in villeinage, their rights and remedies, 4, 5.
in copyholds, 5.
in customary freeholds, 5.
of tenant-right estates, 5.
by border services, 5, n.
Customs, Local,
Acton, — descent, 130.
Archenfield, — descent, 128, n.
Barnes, — descent, 130.
Barton-upon-Humber,— -devise for years, 83.
Battersea, — descent, 130.
Beaminster, — ^right of renewal, 43.
Bedham, — ^righte over wastes, 297.
Bitteme, — descent, 131, n.
Botchardgate,— devise to trustees, 83.
Boxgrove, — descent, 132.
Bray,— descent, 134.
Cashiobury, — descent, 134.
Ciistlerigg, — descent, 134.
Choltennam, — frocbcnch, IGO.
U9DBX. 615
Customs, Local— con/inwad.
Chertsey Beaumond,— descent, 134.
Chester,— descent, 128, n.
Chilbolton^grant for lives, 357.
Clitheroe, Etonour of, — ^general customs, 511 — 514.
Cornwall, — indosures by tenants, 285.
Croydon, — fines, 177.
Cumberland, — tenant-rigbt, 5.
Dawlish, — copyholds for lives, 40.
freebencb, 161.
Derwentwater,— descent, 134.
Doddington, — freebench, 160.
Dorking, — descent, 130.
Dorset, — cattle-gates, 16, n.
Dovercourt, — fines, 186.
Down, — descent, 130.
Durham, — ^tenant-right, 6.
Ealing,---descent, 130.
Easington, — devises, 82.
Edmonton,— descent, 129.
Exeter, — descent, 128, n.
Famham, — descent, 134.
Framfield,— descent, 131, 133.
heriot-custom, 203.
inclosures by tenants, 284.
Fulham, — descent, 130.
Glamorgan, Vale of, — descent, 128, n.
Hackney,— -descent, 128, n.
inclosure of wastes, 281, 282.
Ham, — freebench, 160.
inclosure of wastes, 282.
Hampstead, — inclosure of wastes, 282.
Harrow-on-the-Hill, — fines, 177.
Hemel-Hempstead, — heriot-custom, 208.
Houghton,— ndevise, 82.
Hoe, — descent, 140.
Isleworth, — descent, 130.
Islington, — descent, 129.
Kent,— gavelkind, 8, 9, 127, 326, 327.
copyholds, 7, 129.
borough-english, 129.
dower, 158.
customary curtesy, 168.
guardianship, 170.
Eingsmoor, — customary inclosures, 285.
'Klikhy Lonsdale, — descent, 134.
Lambeth, — fines, 177.
Lewes, Eape of, — descent, 130.
Lewisham, — ^inclosure of wastes, 283.
Littlecott, — inclosure of wastes, 283.
Lyddington-cum-Caldecott, — descent, 1 30.
Mardon,— descent, 134.
Mayfield,— descent, 131, 133.
heriot-custom, 203.
I
616 INDEX.
Customs, Local — continued,
Middleton Cheney, — descent, 134,
Milton, — descent, 130.
Mortlake, — descent, 130.
Norfolk, — intermixed lands, 52, 121.
Northumberland, — ^tenant-ri^ht, 5.
Nottingham, — borough-enghsh, 8.
Oswaldbeck, Soke of, — descent, 128, n.
Oyersands, — ^tenant-right, 5.
Pamber, Forest of, — dower, 158.
Peterdiam, — freebench, 160.
Pevensey,— descent, 132.
Pirbright, — descent, 134.
Plumpton, — descent, 132.
Portland, Isle of, — descent, 128, n.
Putney, —-descent, 130.
Eichmond, — descent, 130.
fines, 177.
Boehampton, — descent, 130.
Eotherfield, — descent, 131.
St. Stephens, Herts,— -descent, 134.
Sheen, — descent, 130.
Sherwood Forest,--oustomary inclosures, 285.
Stainton, — fines, 194.
Stepney, — descent, 128, n.
customary inclosures, 281, 282, 308.
Stoke Newington, — fines, 179.
Suffolk, — intermixed lands, 52,121.
Surrey, — descent of copyholds, 129.
Sussex, — cattle-gates, 16, n.
intermixed lands, 52.
descent of copyholds, 129.
Sutton, Holland, — fines, 180.
Taunton-Deane, — dayne surrenders, 78, 79.
dormant surrenders, 83.
descent, 132, 133, 134, 135.
freebench, 159.
customary curtesy, 168.
inclosure of wastes, 168.
Thornbury, — freebench, 160.
Thorpe Hall, — provisional admittance, 90.
Trelleg, — descent, 128, n.
Tynemouth, — custom of husbandry, 5, n.
descent, 128, 134, 141.
Usk, — descent, 128, n.
Wadhurst,— descent, 131, 133.
Wandsworth,— descent, 130.
inclosure of waste, 282.
Wareham, — descent, 128.
Weardale, — descent, 134.
Weeks Park Hall, — ^heriot-custom, 205.
Westcott, — descent, 130.
West Linton, — fines, 194.
Westmorland, — tenant-right, 5.
INDEX. 617
Customs, Looal — continued.
West Sheen, — freebench, 160.
incloBure of wastes, 282.
Wimbledon, — descent, 130.
indosure of wastes, 283.
Windsor Forest, — ^inclosure of wastes, 282.
Woodford,— fines, 192.
Worcester, See of, — copyhold for lives, 38.
Worplesdon, — descent, 134.
Yetminster Prima, — ^tenant-right, 43.
excepted tenements, 79.
general customs of, 508 — 510.
Yorkshire, — tenant-right, 5.
CrSTTJMAL,
when evidence against existence of custom, 237, 238, 340.
when best evidence of a custom, 339.
Damages, measure of, for minerals wrongfully taken, 235.
Daynb Sttrbendeb, what it is, 78.
Dayite TeneiIekt, meaning of term, 79.
Deed,
when copyholds transferable by, 13, 50, 92 — 94.
(See also Conveyance y Statutory,)
form of, of enfranchisement of copyholds, 490.
of extinguishment of manorial incident?, 491.
Demesnes,
requisite of legal manor, 9.
efPect of alienation of, 10, 12.
what they comprise, 11.
mines under freeholds may be parcel of the, 328.
Descent, Customary,
freeholds may be subject to, 7, 126.
in absence of, common law regulates inheritance, 126.
strictly construed, 126.
runs with land in case of freeholds, 127.
extinguished by enfranchisement of copyholds, 127, 414.
in gavelkind, proper meaning of term, 127, 128.
what commonly implied by, 127.
varieties of, 128.
in borough-english, what impUed by, 127.
proper meaning of, 128.
varieties of, 129, 130.
varieties of, may prevail in same manor, 131, 132.
" descent " may have special local signification, 126, 133.
to females, instances of, 133, 134.
when excluding females, how interpreted, 134.
to widow, 134.
to widower, 134, 135.
of estates-tail, 135, 136.
of descendible estates j^ur autre vie, 136.
how course of, may be altered, 136, 137.
618 INDEX.
Dbscent, Cttstomabt— co^i^inuecf.
of '' land," what comprised in, 136.
of rights of entry, 137.
of a^owBons, 137.
of rents, services, &c., incident to a manor, 137, 138.
does not extend to tithes, 138.
of rents chaiged on or resenred out of costomaiy lands, 138,
139.
of equitable estates and interests, 139.
benefit of executory trust not subject to, 139, 140.
does not extend to money representing land, 140.
when heir according to, ascertained, 140, 141 .
how affected by Statute of Distributions, 142, 144.
effect of Inheritance Act, 1833, on, 142—147.
of reversion expectant on life estate, 143.
rule of representation in, 144.
effect of hmitation to " heirs *' or *' heirs of body " on, 145.
succession between brothers according to, 146.
inconveniences of, in borough-english, 147.
effect of commutation of copyhold on, 364.
Devisb,
of copyholds not within Statutes of Wills, 82.
how formerly made, 82, 84.
by virtue of Wills Act, 1837 . . 84—87.
fine payable on taking by, 85, 183.
enrolment of, on court-rolls, 85, 86.
by infants, 86.
by married women, 86.
effect of, when in general terms, 87, 91.
on right of the heir, 87 — 89.
power of appomtment to trustees for sale in liou of, 89.
what estates devisable, 90, 91.
of manor, 91.
disclaimer of, by devisees, 91, 92.
by heir before admittance, 148.
by widow of crops on land held in freobench, 163.
bar of freebench by, 166.
DlSENTAILINa ASSXTBAKCE,
bar of estates-tail by, 27, 30.
enrolment of, 28—30.
consent of protector of settlement to, 28, 29.
forms of, 500, 501, 504.
DiBGAVBLLING,
how effected, 9, 326.
Acts, list of, 9.
how proved, 327.
Distress,
to compel admittance to freeholds, 8.
for fealty, nature of, 196.
for suit of court, nature of, 197.
for heriot-service, 198.
for suit-heriot, 199, 200.
for heriot-custom, when available, 203.
INDEX. 619
Distress — conUnued,
does not lie for customary relief, 210.
for rents of assise, 211.
by commoner of cattle doing damdge, 266.
by lord of cattle not commonable, &c., 276.
DlSTBIBTTTIONS, STATUTE OF,
descended customary estate not within, 142.
representation in customary descent not limited by, 144.
Dole- Woods, may be copyholds, 15.
DoMESDAT Book, evidence of tenure in ancient demesne, 6, 325.
DoBMANT SuBBEin}£B, nature and effect of, 83.
DOWEB,
cusikomary, in freeholds, 7, 8, 158.
nature of, in burgag^e tenure, 8, 158.
in gavelkind tenure, 8, 158.
general incidents of, 157.
m)m what tenements due, 159.
widow of joint tenant not entitled to, 161.
widow of trustee not entitled to, 161, 162.
Dower Act, 1833, does not apply to copyholds, 158.
Draft of deed, &c., when admissible in evidence, 347.
Dropping Fdte, what is, and when due, 172, 183.
Duchy of Cornwall. See Cornwall, Duchy of.
Duchy of Lancaster. See Tjancaster, Duchy of,
Durham, University of, enfranchisements by, 434, 435.
See University Estates,
Easement,
release and abandonment of, 270, 271.
for minerals reserved on commutations or enfranchisements,
364, 365, 415, 416.
ECOLESIASTIOAL COMMISSIONERS FOR ENGLAND,
enfranchisements by, 368, 431 — 434.
Acts of Parliament relating to, 431.
powers of, over lands belonging to them, 431.
notice of compulsory enfranchisement proceedings to, 433.
Ecclesiastical Corporation,
exchange of copyholds by, 117.
whetiier tenant of, has nght of renewal, 117, 429.
power of, to enfranchise under Copyhold Acts, 368, 433, 434.
agreement to enfranchise by, under Copyhold Act, 1841 ..428.
power of, to enfranchise imder Episcopal and Capitular Estates
Acts, 428—430, 431.
definition of, in Episcopal, &c. Estates Acts, 429.
Ecclesiastical Manors,
enfranchisements in, how effected, 368, 428.
enfranchisements in, under Episcopal and Capitular Estates
Acts, 429—431.
whether tenant in, has a right of renewal, 117, 429.
620 INDEX.
EoOLESI^SnCAL MIlSOBS— continued.
apportionment of rents, fines, &c., on enfraucliisement, 433.
enfranchisements in, imder Copyhold Acts, 368, 433, 434.
suspension of enfranchisement oy Board of Agriculture, 433.
Elbotion,
doctrine of, in copyhold estates, 22.
between jointure and freebench, 163, 164.
as to payment of rents of assise in money or corn, 211.
Elegit,
tenancy by, in copyholds, 37.
writ of, formerly not available, 122.
fine on admittance of tenant by, 184.
Emblemzztts, widow's right to, 163.
Encboaohment,
rights of common extinguished by, 272, 285.
remedies against, 285.
by copyholder, whether of copyhold tenure, 285, 286.
on waste, court-leet has no power as to, 302.
power of homage jury as to, 307.
Enfillnohisement at Common Law,
by consent of Board of Agriculture to grant of waste by lord,
15, 279, 280.
by declaration of Board of Agriculture with consent of lord as
to copyholds exchanged under Inclosure Acts, 113.
when presumed, 153, 219, 337, 338, 355.
effect of, on heriots, quit-rents, customary reliefs, &c., 204, 211,
353, 354.
does not affect lord's ri^ht to escheat, 223, 353, 354.
when it extinguishes rights of common, 268, 269, 356.
meaning of term, 352.
how effected, 352, 353.
severs copyhold from the manor, 353.
who can effect, in copyholds of inheritance, 354.
in copyholds for Hves, 354, 355.
who may accept, 355.
acceptance of, by copyholder with limited estate, 355.
investigation of lord s title on, 355, 356.
provisions of Conveyancing, &c.. Act, 1881, as to title to make,
356.
disadvantages attending, 356.
how rights of way, fiahmg, &c., affected by, 357, 358.
effect of, in barring entail, 358.
on customary incidents attaching to land, 358.
enrolment of deed of, 359.
Enfranchisement, Stattjtobt,
(a) voluntary under Copyhold Acts,
who may effect, 365, 366.
who may accept, 365, 367.
notices requisite when party to, has limited interest, 365.
proceedings where notice of dissent given, 366.
declaration of titie by lord, 366.
when mortgagee may enfranchise, 367.
INDEX. 621
Enfranchisement, Statutoby— co7t^int^«c;.
(o) voluntary under Copyhold Acts — continued,
where land held in undivided shares, 367.
what lands may be subject of, 368.
how effected, 368.
consideration for, 369.
payment of consideration for, 369 — 371.
receipt for consideration, 370.
recovery of consideration if. paid to lord without title, 371.
application of consideration when paid into court, 372, 403.
where consideration is a rent-charge, 372.
commencement of rent- charge, 372.
when rent-charge payable, 372.
charge of consideration on land, 373.
. where consideration is land, position of lessee, 373.
effect of, 373, 374, 414, 415.
under what title lands are held after, 374.
how existing mortgages affected by, 374.
how leases affected by, 374, 415.
expenses of, how borne, 408, 409.
expenses of trustee effecting, 410.
steward's compensation on, 412, 414.
does not extingiiish rights of common, 415.
easements for minerals reserved on, 415, 416.
inspection of court-rolls after, 417.
consents to agreement by ecclesiastical corporation for, 42S.
information to be supp^lied to Board of Agriculture on, 478.
form of deed enfranchising copyholds, 490.
extiuguishing manorial incidents, 491.
(6) compulsory under Copyhold Acts,
notice to tenant of his right, 70, 156, 312, 323, 380.
powers of Board of Agriculture as to, 359, 360.
when lord may require, 375, 376.
when tenant may require, 375, 376, 378.
who is lord for purpose of, 376.
declaration of title by lord, 376, 377.
who entitled to act for lord under disability, &c., 377.
when steward represents lord, 377.
appointment of agent by lord, 377.
•who is tenant for purpose of, 379.
by mortgagee, 380.
wnere land held in undivided shares, 380.
who can compel, in manors where derivative interests
entered on court rolls, 380.
appointment of agent by tenant, 381.
'^ere tenant under legal disability, &c., who may act, 382.
death of lord or tenant during proceedings for, 378, 382.
notice of desire for, how served, 383.
notice of acceptance of scales of compensation £xed by
Board of Agriculture, 383.
when Board of Agriculture may suspend proceedings,
384, 385.
modes of ascertaining consideration for, 385—387.
appointment of valuer for purpose of, 387, 388.
622 INDEX.
Enfranchisement, Statutoey— eonimtied.
(6) compulsory under Ck>p7hold Acts — continued.
time for decisLon oi valuers in, 888.
time for appointment of umpire by valuers in, 388, 389.
removal of valuer or umpire in, 389.
fresh appointment of valuer or umpire in, 389.
powers and duties of valuers in, 390, 391.
ascertainment of quantities and boundaries of land, 391.
circumstances to be considered by valuers, 39 1 — 394.
decision of valuers in, 394, 395.
reference of questions arising in valuations to Board of
Agriculture, 395, 396.
appeal from decision of Board of Agriculture, 396.
allowance to valuers or umpire, 396, 397.
preparation and confirmation of award, 397, 398.
correction of awards of enfranchisement, 398.
commencement of enfranchisement, 398.
when consideration for, must be a rent-charge, 398, 399.
commencement of rent-charge, 399.
days of payment of rent-charge, 399.
remedies for recovery of rent- charge, 400.
when rent-charge may be redeemcMi, 401.
consideration for redemption of rent-charge, how fixed,
401.
recovery of redemption money, 401.
priority of rent-cnargo, 401 .
when rent-charge appurtenant to manor, 401, 402.
Bale of rent-charge by a limited owner, 402.
receipt by Hmitea owner for consideration, 403.
how consideration dealt with, if lord refuses to accept, 403.
payment of consideration in case of limited owner, 403.
if manor held on charitable trust,
404.
if corporation is lord, 405.
if to tne use of a benefice, 405.
lord's remedies to recover consideration, 405.
charge of consideration on land, 406.
effect of charge, 406.
remedies exorciseable by owner of charge, 406.
charge by lord when purchasing tenants interest, 407.
tranter of charge on manor, 408.
expenses of, how borne, 409.
if incurred by trustee, 409, 410.
charge of, 410, 411.
where dispute as to title, 411.
expenses of redeeming rent-charge, 412.
steward's compensation on, 412 — 414.
effect of, 414, 416.
lord's right to minerals, how affected by, 416.
user of soil of enfranchised lands, 417.
restrictions affecting land, how far affected by, 417.
tenant's obligation as to boundaries, how affected by, 417.
inspection of court roUs after, 417.
custody of court rolls aft^r, 417.
INDEX. 623
Enfranchibement, Statxttoby— continued,
{b) oompnlsory under Oopy;hold Acta — continued,
in manors where denyatiye interests entered on court rolls,
420—423.
who is tenant for, 421.
efPectof, 421.
local enquiiy by Board of Agriculture as to enfran-
chisement throughout manor, 421, 422.
order for enfranchisement throughout manor, 422.
compensation for, how ascertained, 422.
who liable for, 422.
apportionment of contribution, 423.
how enfranchisement effected, 423.
in Crown manors, 425 — 427.
in ecclesiastical manors, 433, 434.
minute of Board of Agriculture as to, 466.
scale of compensation framed by Board of Agriculture,
473.
allowance to valuers, 476.
forms for, issued by Board of Agriculture, 477 — 492.
(f ) under Acts other than Copyhold Acts,
under Lands Clauses Consolidation Act, 1845... 109, 418 —
420.
Crown Lands Acts, 423—425.
Duchy of Lancaster Acts, 427.
Duchy of Cornwall Acts, 428.
Episcopal and Capitular Estates Acts, 429, 430.
Ecclesiastical Commissioners Acts, 431 — 433.
Univei-sity and College Estates Acts, 434 — 436.
Land Tax Eedemption Acts, 437, 438.
Church Building Acts, 438.
Poor Law Acts, 438, 439.
Literary and Scientific Institutions Act, 439.
School Sites Acts, 105, 439.
Consecration of Qiurchyards Act, 1867... 4 39.
ExQuraY BY Board of Agriculture,
for apportionment of compensation among commoners, 294.
security for costs of, 295, n., 441.
as to enfranchisement throughout manor where derivative
interests entered on court rolls, 421, 422.
for determination of disputes as to manorial rights, 440*
Enrolment,
of disentailing assurances, 28, 29, 32.
of licence to demise by lord of settled manor, 37, 103.
of conveyances to charitable uses, 61.
of copyhold assurances, 65, 75, 81.
of devises, 85.
of deed of sale by tenant for life under Settled Land Acts,
104.
of deed of conveyance under Lands Clauses Consolidation Act,
1845... 107, 418.
of enfranchisement deed, 359, 424, 438.
Entail. See Estates Tail,
624 INDBX.
BirrRT, Bights of,
on forfeiture, 1, 224.
deyise of, 85.
oonveyance of, 94.
descent of, 137.
Episcopal and Capitulab Estates Acts,
who may enfranchiBe under, 368, 428, 429.
application of enfrandusement moneys under, 430.
Eqxtitable Estates in Copyholds,
general incidents of, 22.
may be limited to uses, 24.
entail of, 26.
how barred, 27, 28.
conveyance of, 93.
customary descent of, 139.
escheat of, 221.
Eqxtitable Mobtgaoe. See Mcrtga^je,
Eqttitt op Bedemption,
descent of, 139.
when mortgagee will have, 222.
Escheat,
for felony in gavelkind tenure, 8.
of freeholds, 10.
nature of lord's right to, 220, 222.
provisions of Intestates* Estates Act, 1884, as to, 221.
Crown cannot take copyholds by, 221.
of equitable estates, 221.
of trust and mortpige estates, 221, 222.
waiver of, by lord, 222.
right to, barred by lapse of time, 222.
effect of commutation or enfranchisement, 223, 353, 364, 41 4 <
EscTTAGE, Tenure by, nature of, 5, 6.
Estates in Copyholds,
quantiim of, determined by custom, 24.
nature of, 21 — 45.
creation of unauthorised, 35, 223.
evidence of, 344.
Estates pub autbe vie,
nature of, 33.
effect of death of tenant having, 33.
provisions of Wills Act, 1837, as to, 33, 34, 85, 86, 516, 518.
Estates Tail,
may lie created, when, 22, 26.
may be highest estate grantable, 24.
how barred, 27.
meaning of, in Fines and Becoveries Act, 1833... 28, n.
consent of protector of settlement to bar of, 28, 29.
if equitable, how barred, 27, 28, 53.
into what estate convertible, 30.
effect of limited disposition of, 31.
bar of, by married woman, 31.
INDEX. 625
Estates TAJL^continued.
powers of protector of settlement, 31.
may be subject to customary descent, 135, 136.
evidence of custom to create, 345.
of custom to bur, 345.
forms of disentailing assurances, 500, 501, 504.
ESTOVSBS,
oopybolder's right of, 231, 232.
common of, 250, 261, 262.
where usually exerciseable, 256, 277.
not affected by statutes as to approyement, 277.
ESTBATS,
franchise of, how claimed, 240.
how extinguished, 241.
definition of, 240, 241.
when owner of, can recover, 241.
Eton, Oolleoe of, enfranchisements by, 435. Bee University
Estates.
Evidence,
extent of, necessary to establish a custom, 236, 237, 338.
of user, when condusiye, 237, 238, 328, 329.
when custumal of manor is, 237, 339.
of sufficiency of common on indoaures, 283.
of copyhold tenure, 324, 337.
of freehold tenure, 324, 337.
of tenure in free alms, 324, 325.
in ancient demesne, 325.
in burga^, 326.
in gavelHnd, 326.
of disgavelling b;y Act of Parliament, 326, 327.
of contents of private Act of Parliament, 327.
of existence and contents of manor, 327, 328.
when reputation admissible as, 329 — 332.
by the verdict of a jury, 332.
award of arbitrator not, of boundary, 332.
by ancient private records, 332.
by manorial surveys, 333.
by parliamentary surveys, 334.
wnen presentments in court-rolls are, 334.
by ancient leases, perambulations, maps, 335.
as to manorial franchises, 336.
of tenancy of particular manor, 337.
of release of services, 338.
of custom, instances of, 338, 339.
what is best, 339.
requisites of user as, 340, 341.
of customary right cabbie of enjoyment, 339.
non-user may be, against custom, 341.
by custom of one manor of custom in another, 342, 343.
oi right of common claimed by custom, 343.
under Prescription Act, 343, 344.
as to nature of cop^rholders' estate, 344.
of right of renewal in copyholds for lives, 43, 344.
£. S S
i
626 INDEX.
Eyidenoe — continued,
' as to amount of fine, 174, 344.
of custom to create or bar estates-tail, 345.
of copyhold assurances, 346—347.
of steward's signature, when requisite, 346.
of entries in court-rolls, 346.
by draft of a document, 347.
by court-rolls, 347.
of proceedings in manorial courts, 347, 348.
See, generally. Chap. X., pp. 324--348.
« ExoEFTED Teztements," in manor of Yetminster, 79, 608, 509.
EXOHANOB,
of copyholds ^nerally, how made, 110.
m common fields, 111.
by incumbents of ecclesiastical benefices. 111.
of parsonaees, glebe lands, &c.. 111.
by order of court. 111, 112.
by award of valuer under Indosure Acts, 112, 113.
by order of Board of Agriculture, 113.
under Indosure Acts, effect of, 112, 114, 116.
who may apply for, 114, 116.
what may be subject of, 116.
of charity lands, 117.
by ecclesiastical corporations, 117.
instructions by Board of Agriculture for effecting, 446.
fees of Board of Agriculture in matters relating to, 462.
form of application to Board of Agriculture for, 463.
EXEOUTOB,
of tenant r>wr autre vie, estate of, 33, 34, 86.
of copyholder for years, fine payable by, 183«
ExECTTTOBY UsES, Surrender to, 60.
Expenses,
payable by vendor, 76.
purchaser, 76,
of purchase Dy lord of tenant's interest, 386, 407.
of enfranchisement, voluntary, 408.
compulsory, 409.
power of Board of Agriculture, 408—4 1 1 .
remedies for recovery, 409, 410,
of trustee, 410.
charge of, 410, 411.
where diE^utes as to title, 411, 412.
of redeeming rent-charge, 412*
" ExTXNTA MAiTXBn," provisions of, 4, 333.
EXTINOnON, ExTiNaxnsHMEKT,
of manor, 10, 301.
of heriots, reliefs, quit-rents, &c., 204, 210, 212,
of free-warren, 239, 240.
of frandiise of estrays, 241.
of waif, 242.
of wreck, 243.
of fairs and markets, 246.
IKDEX. 627
Extinction, BxrufomsBMENT^coniinued.
of Tights of conunon, 267 — ^272.
of copyhold tenure, 349 — 352.
of muuyided intereist in copyhold, 350.
of manorial rights, compu^ry, 374, 375.
proceedings for, 375, 477.
Faibs and Markets,
may be subjects of copyhold tenure, 14.
descent of dues or profits of, 138.
right to hold, how claimed, 244.
how forfeited, 245.
where thev m&j be held, 244.
tolls and dues m, 244, 245.
remedies for disturbance of, 245.
establishment of, by Act of Parliament, 245.
abolition of iair, under Fairs Act, 1871 . . 245.
change of day of holding fair, 246.
lord's right to, not affected by commutation or enfranchisement,
364, 416.
Fabthino-Land, 132.
FXALTY,
of what it consists, 196.
proceedings to compel, 196.
cannot be done by attorney, 196.
effect of Statutes of Limitation on, 212—218.
Fee SncFUS, may be ''moveable," 15.
Fees,
on enrolment of will on court-rolls, 65, 85.
of steward upon surrender, who pays, 76.
on admittance of building, &c. society, 103.
on enrolment of conveyance by tenant for life under Settled
Land Acts, 104, 193, 194.
for inspection of court-rolls, 316, 417.
of steward, generally, 317 — 323.
where estates are undivided, 322.
in case of allotments under several titles, 322.
when copyhold taken under Lands Clauses Conso-
lidation Act, 323, 420.
compensation for, on enfranchisements, 412 — 414,
420.
of Board of Agriculture for transactions under Copyhold and
Indosure Acts, 443, 452, 493—495.
Felons' Goods, franchise of, 11, n.
Felony,
escheat for, in gavelkind tenure, 8.
of copyholder, 224, 225.
of trustee or mortgagee, 224.
attainder for, now abdiBhed, 225.
Fen-Distkicts, customs of, 177, 343.
ss2
a
628 INDEX.
Feoffment by infant in Kent, 8.
Pine,
may be due from freeholder, 6, 8.
not due on ooyenant to surrender, 74.
on admittanoe, 76, 188.
payable by deyisee, 86, 86, 183.
saved by power of appointment to trustees for sale, 89.
on provisional admittance, 90.
on conveyance by tenant for life under Settled Land Acts, 104,
192—194.
on conveyance under Lands Clauses Consolidation Act, 1845. . .
107, 194, 195, 419.
on widow's admittanoe for freebenoh, 162, 185.
when generally due, 170, 182.
classification of, 171.
on death of admitting lord, 171 — 173, 183.
what is a dropping, 172.
on admittance either certain or arbitrary, 173.
definition of fine certain, 173.
arbitrary, 174.
assessment of, 174.
demand of, 175.
when arbitrary, must be reasonable, 175.
effect of refusal to pay, 175, 230.
reasonableness of, how ascertained, 175, 176.
rule as to amount of, 176, 177.
circumstances to be considered in assessment of, 177.
rent reserved on lease not proper basis of, 177.
exceptions to ordinary rule as to amount of, 177.
instances of customs as to, 177, 178.
avoidance of, by purchaser's choice of admittanoe, 178.
in copyholds for uves, 179.
on admittance of joint-tenants, 180 — 182, 188.
tenants in common, 182.
on descent to heir, 182.
on death of surrenderee before admittance, 182.
on acquisition of new estate, 183.
from devisee of unadmitted testator, 182.
from person taking as special occupant, 183.
from representatives of mtestate t^ant pur autre vie, 183.
from executor of Copyholder for years, 183.
from coparcener on descent, 183.
not due on falling in of reversion, 184.
entry after condition broken, 184.
from trustees as joint-tenants, 184.
iroTo. mortga^^ee and mortgagor, 184.
from tenant by elegit, 184.
on dealings by trustee in bankruptcy, 184.
on admittance of widower for customary curtesy, 185.
when payable by remainderman, 185, 186.
executory devisee, 186.
rules as to apportionment of, 186, 187.
when payable by appointee under a power, 187.
on admittanoe to several tenements, how assessed, 187.
INDEX. 629
Fins — continued,
on oonveyanoe by joint-tenants, coparceners, &o., 187.
particular tenant and remainderman, 187.
tenants in common of nndiyided shares, 187.
rules as to contribution to, 188, 189.
time for payment of, 189, 231.
lord's remeoies for recovery of, 189, 190.
not a charge on the lands, 190.
action to Tecover, when to be brought, 190.
when not due, ^nerally, 184, 190, 191.
on licence to alienate, 195, 196.
right to, on sale of manor, 196.
effect of enfranchisement at common law, 358.
not due on death of lord or tenant dming enfranchisement,
378, 382.
compensation for, on compulsory enfranchisement, 391, 473.
Fines and Eecovebies Act, 1833.
effect of, on tenure in ancient demesne, 7, 326.
applies to copyholds, 27 — 30.
meaninjz of ** estate- tail " and *' base fee " in, 28, n.
disentamng assurances may be rectified, notwithstanding, 32.
conveyance by married women according to, 93.
effect of, on evidence of custom to bar entails, 345.
Fiee-bote, what it is, 232.
FiEST Oeop,
may be copyhold, 15.
may be described as meadow, 329.
FiEST Taxek in Copyholds fob Lives, custom as barring of
Hves by. 40, 42, 345.
Fishing, Eights of,
copvholders may have bv custom, 250, 357.
lord's right not affected by commutation or enfranchisement,
364, 416.
FiSHiNG-FLACES, may be held by copy of court-roll, 14.
FoLD-coxmsE, Bight of,
definition and incidents of, 17, 246, 247.
how distinguished horn frank foldage, 246.
FOBBSHOEE,
may be parcel of manor, 12, 242, 328.
title to, what will confer, 242, 328.
presumption as to ownership of Crown of, 328.
FOBEBT,
rights of common in, 256.
indosures by guardians of the poor in, 299.
FoEFErruBE,
entry for, when to be made, 219, 224.
accuracy in proceedings for, 223.
not allowed, if lord has other remedy, 223.
relief against, 223, 226, 228, 229.
who may take advantage of, 224.
dispensation of, 224.
630 Dn)sx.
FoRFElTUBE — continued.
for felony, 224, 225.
for waste, 225—227.
relief against, 226.
entry for, though tenant in remainder, 226.
Lora Coke's remarks as to, 226.
for alteration of boundaries, 228.
relief against, 228.
for alienation, what will occasion, 229.
relief against, 229.
dispensation by lord of, 230.
effect of, on lease with licence, 230.
for neglect of services, 230.
for retusal to take admittance, 231.
for taking of minerals and trees by tenant, 233.
right to, destroyed on enfranchisement or commutation, 358,
364, 414.
compensation for, 391, 474.
Franchises,
frequently annexed to manors, 11.
definition of, 11, n.
various kinds of, 11, n.
when merged in prerogative of Crown, 11, n., 240 — 243, 245.
how to be claimed, 238.
over what lands exerciseable, 238.
of free- warren, 238—240.
of estrays, 240, 241.
of waif, 241, 242.
of wreck, 242—244.
of fairs and markets, 244 — 246.
of frank foldage, 246, 247.
manor by reputation is evidence of title to, 301, 327.
F&ANKALMOIGNE, TeNXTBE IN,
nature and incidents of, 3, 325.
evidence of, 325.
not affected by 12 Car. IE., c. 24... 325.
can only be created now by Crown, 325.
Frank-Foldagb,
definition of, 246.
how claimed, 246.
how distinguished from right of fold-course, 246.
Frauds, Statute of, applies to copyholds, 22, 125.
Free Alms. See FrankcUmoigne*
Freebench,
of widow of unadmitted heir or surrenderee, 63, 149, 162«
when claimable, 157, 158.
Dower Act, 1833, does not apply to, 159.
quantity and duration of, generally, 159.
when copyholds descend as in gavelkind, 159.
in copyholds for lives, 159.
widow may have inheritance in lieu of, 159.
from what tenements usually due, 159, 160.
INDEX. 631
Fbeebenoh — conUnued,
in rents, 160.
in lands of which husband was seised during marriage, 160.
in joint-tenancies, 161.
in tenancies in tul, 161.
in tenancies for life, 161.
not due from equitable estate, 161.
"widow of trustee not entitled to, 161, 162.
assignment of, 162.
whether admittance necessary for, 162.
remedies for, 162, 163.
daim to, how barred, 160, 163—166.
paramount to lord's right of escheat, 220.
custom as to, does not alPect provisions of Intestates' Estates
Act, 1890... 345.
effect of commutation and enfranchisement, 358, 364, 414.
Fbeehold Teitube,
tenants in, custom may modify title of, 2, 6, 8, 324.
with customary incidents distinct from customary
freeholders, 2, 6.
may be subject to customs of descent, 126, 132,
133.
rights of, over manorial wastes, 257—259, 283.
duties of, in court-baron, 300, 304.
evidence of, 324.
conversion of copyholds into, 352, 414.
Free-bent, compulsory extinguishment of, 375.
Feee-wareen,
how claimed, 238.
grant of, what conferred by, 238.
what are beasts and fowls of warren, 239.
effect of reservation of, on alienation of lands, 239.
alienation of lands without mention of, 239.
when passing with conveyance of manor, 239.
how affected bv indosure of waste lands, 239, 240.
construction of Inclosure Acts as affecting, 240.
forfeiture of, 240.
title to, how proved, 336.
effect of non-user, 336.
Fuel, copyholder's right to take, 231, 250.
Oahs, lord's right to, on commutation or enfranchisement under
Copyhold Acts, 364, 414.
appoin^ent of, evidence of existence of manor, 328.
stamp duty on, 586.
Gavelkind, .
(a) custom of descent in —
its nature, 7, 8.
where found, 7, 8, 127.
does not apply to tithes, 17, n., 138.
\
632 1NU£X.
Gavelkind — continued.
(a) custom of descent in — eontinued,
proper meaning of term, 127, 128.
what commonly implied by, 127.
rons with land'in case of freeholds, 9, 127. «
how affected by enfranchisement of copyholds, 9, 127, 414.
yarieties of, in copyholds, 128.
right of representation in, 128, 144, 145.
effect of Inheritance Act, 1833, on, 142—147.
how affected by commutation of manorial rights under
Copyhold Acts, 364.
(h) tenure in —
nature of, 6, 8.
where chiefly found, 8, 326.
what ** gavelkind" signifies, 8.
incidents of, 8.
alienation l^ infant of land held in, 8.
disgavelling, how effected, 9, 326, 327.
proof of tenure, 9, 326.
dower in, 158.
guardianship in, 168.
tenancy by the curtesy in, 168.
how affected by commutation or extinguishment of
manorial rights under Copyhold Acts, 364, 414.
Geke&al Fine,
may be due on death of admitting lord, 172, 183.
when action may be brought to settle, 176.
General Oocupancy, does not exist in copyholds, 33.
Glebe,
exchange of, by incumbents of ecclesiastical benefices, 111.
conveyance of portion of manorial waste for, 298.
Goodwill of copyholder for lives, manifestation of, 40.
Geant, Volxjntaet,
who may make, 46 — 48.
what may be the subject of a, 46.
custom as to, obseryanoe of, 48.
by steward, 49.
where it may be made, 49, 312.
in reversion, custom may permit, 49.
who may take, 49.
what estate may be granted by a, 49, 344.
effect of, 49.
admittance on, 50.
forms of, 501, 502.
Geavbl,
copyholder's right to take, 227, 250.
lord's right to, on commutations or enfranchisements under
Copyhold Acts, 364, 416.
GUABDIAN OF INFANT,
admittance of, 70, 71.
when lord may appoint, 124, 169, 170.
who may be a customary, 169.
INDEX. 633
GuAKDiAN 07 Infant — continued,
powers of a customaxv, 169.
by custom in freeholos, 170.
. enfraachiaement destroys right to appoint by oustoxn, 358, 414.
GT7ABDIAN8 OF THE PooE, inclosure from wastes by, 299.
Half-blood,
formerly excluded in customary descents, 146.
admitted to succession under Inheritance Act, 1833... 147.
Hat-botb, Hedoe-botb, what it is, 232.
Heie,
may take as special occupant, 33, 34.
surrender supplied against, 67.
action by, before admittance, 74.
right of, to admittance, notwithstanding devise, 87, 88.
ascertainment of, under custom of borough-english, 140.
when taking as purchaser, who is, 145.
by custom, may take imder limitation to heirs, when, 145.
under Inheritance Act, 1833... 146.
estate and powers of unadmitted, in copyholds of inheritance,
147, 148, 150, 355.
in copyholds for lives of, 149.
lord's fine not affected by act of unadmitted, 148.
admittance of, how effected, 150, 151, 197.
when compellable to take admittance, 152, 156.
proclamations for, how to be made, 153.
not bound to claim admittance before proclamations, 154.
statutory provisions as to admittance of, when an infant or
lunatic, 154, 155.
notice to, of right to enfranchise, 156.
right of, to continue en&andusement under Copyhold Acts,
378, 382.
Hebiot,
may be due from freeholders, 6, 8, 198.
various kinds of, 198.
reservation of, on re-grant of escheated land, 204.
right to, how affected by enfranchisement, 204, 358.
when multiplied, 204—209.
custom as to multiplication of, how construed, 207.
how limited, 208.
when unreasonable, 208.
claims to, not favoured, 209, 210.
effect of Statutes of Limitations on, 212 — 218.
compulsory extinguishment of, 204, 374, 375.
not due on death of lord or tenant during enfranchisement,
378, 382.
(a) heriot-service —
nature of, 198.
where it m&j be seized, 198, 199.
how extinguished, 199, 204.
multiplication of, 206, 207.
whether within the Statutes of Limitation, 212 — 218.
634 INDEX.
Hebiot — tontinued,
(h) suit-heriot —
its nature, 199.
remedies for, 199, 200.
oompuLsory eztingoishment of, 204.
(c) heriot-oustom —
diBtmgaished from heriot-servioe and suit-heriot, 200.
on deatK, when usually due, 201, 202.
not due in respect of equitable estate, 201, 202.
on death of head of corporation, 202.
on alienation, nature of, 202.
not due horn surrenderee before admittance, 202.
how affected by severance of copyhold tenement, 202.
remedies for, 203.
effect of purchase of land by lord, 203, 204.
escheat of tenement and re-grant by lord, 204.
enfranchisement of tenement, 204.
when multiplied, 204—208.
how affected by lapse of time under old law, 212, 218, 218.
whether within the Statute of Limitations, 212 — 218.
HOMAOE,
copyholder bound to act on, 230, 231, 306.
consent of, to grants of wastes by lord, 280 — 282.
to indosures, evidence of suiOBciency of common, 283.
freehold tenants to indosures, 283.
in a court baron, who are, 303.
in a customary court, who are, 303.
number of, 306.
charge to, 306.
duties of, 307.
yerdiot of, as to customary indosure, whether final, 306.
binds other copyholders, when, 307.
relation of, to lord and omer tenants, 307.
powers of, as to encroachments on the waste, 307.
byelaws by, for regulation of common, 307, 308.
should be unanimous, whether necessary, 308.
presentments by, in manorial courts, when evidence, 333.
HoBSE-LBAZE, definition of, 16, n.
HousE-BOTE. See Estovers,
HoTJSEHOLDEBS, cannot prescribe for rights of common, 260.
HT7SBANDBY, CUSTOM 07, tenure according to, 5, n.
HUSBANDBY SebYICES,
tenure by, 3, 8. _
commutation of, into money«rents, 3.
Idbntitt of LAin)8,
conditions as to, on sale of co|)yholds, 75, 76.
when intermixed, how determined, 1 20.
of glebe lands and lands of ecdesiastical corporations, 121.
need not be shown in proceedings for a fine, 189, 190.
to be shown in action for quit-rents or heriots, 190, 210, 212.
for purposes of enfranchisement, how ascertained, 391 .
INDEX.
635
Idiot. See Lunatic,
Inglosubb of Common. See Common (()•
iNOLOflTTBB ACTTS, LoCAL,
former practice as to, 286, 287.
oonBolidation of usual proyisions in, 287.
Inglosxtbs Acts, 1845 to 1882,
exchanges of copyholds under, 112 — 117.
Sartition of copyholds under, 117 — 120.
iyision of inteimixed lands, 120, 121.
lands subject to inclosure imder, 287, 288.
authority of parliament necessary to inclosures under, 288.
procedure to obtain inclosure, &c., of common tmder, 289.
apportionment of compensation among commoners under Acts
of 1852 and 1854... 293.
application of compensation for commonable rights under Act
of 1882... 294, 295.
exchanges, partitions, &c. under, instructions of Board of Agii-
culture as to, 445.
forms of applications for, 453, 455, 456.
regulation, &c., of common under, instructions of Board of
Agriculture as to, 459.
fees of Board of Agriculture for transactions under, 452, 494.
Ikcttmbbances,
searches for, 75.
whether coiirt rolls notice of, 75, n.
iNPAirr,
alienation of gavelkind land by, 8.
when entitled to surrender, 54, 57.
conveyances by, ratification of, 54.
settlement of real estate by, 55.
statutory powers of, to sell lands, 55.
when a tenant for life under Settled Land Acts, 55.
power of trustees for, under Settled Land Acts to surrender, 57.
admittance of, 70, 71, 154.
non-admittance of, not a forfeiture, 71, 155.
devise by, 86.
may act as deputy steward, 810.
who may act under Copyhold Acts for, 377, 381.
iNHABiTAirrs,
cannot prescribe for a profit a prendre, 260.
effect of Crown grant to, 261.
grant from Crown to, when presumed, 261.
rights of, on grants of waste under 51 Geo. m. c. 115... 298.
Inhzbitanoe Acrr, 1833,
alteration of law by, 142, 146.
effect of, on customary descent, 142, 143, 146.
on descent of reversion expectant on life estate, 143.
on rule as to issue representing parent, 143.
abolishes immediate succession between brothers, 146.
admits half-blood to the succession, 146, 147.
iNQxnsrnoNS Post-mortem, evidence of tenure by, 327.
I
■
4
636 INDEX. I
IimSBCOMMONIKG,
in common fields, 121, 290, 291.
when eyidence of common of yicinage, 252.
Intermixed Lands,
where most frequently found, 52, 121.
agreement to divide, confirmation of, 120.
award of re-division of, by Board of Agriculture, 120, 121.
instructions of Board of Agriculture for division of, 445.
fees of Board of Agriculture on division of, 452.
form of application to Board of A^oulture for division of, 456.
Intestates' Estates Acts,
Srovisions of Act of 1884, as to escheat, 221.
efinition of " intestacy" in Act of 1884... 221.
Act of 1890 not affected by custom as to freebenoh, &o., 345.
Joint-tenants,
nature of estates of, 21.
may release to each other, 22, 94.
grant by one, effect of, 48.
surrender severs estates of, 54, 83, n.
effect of admittance of one, 73, 94.
agreement by, to divide copyholds, enforcement of, 118.
wneu seizure quouaque of shares of, 156.
widow of one, not entitled to freebench, 161.
fines payable by, 180—182.
on conveyance by, 187.
suit of court by, 198.
when heriot-custom due from, 201.
when customary relief due from, 210.
enfranchisement by, 367, 380.
Judgment Debt,
copyholds extendible for, 37, 66, 122.
fine payable by creditor taking under, 184.
whetner ancient demesnes may be taken under, 326.
Jttnior Eight,
signification of term, 129.
where principally found, 130 — 133.
JUBT,
in oourt-leet, by whom impanelled, 302.
usual number of, 302, 306.
functions of, 302.
presentments by, 302, 496.
in manorial courts. See Homage,
Kent, County op,
presumption as to gavelkind tenure in, 8, 9, 326.
few copyholds in, 8, 129.
Knight-bebyioe, Tenube bt,
abolished in 1660... 6.
land in Kent held by, effect of proof of, 9.
INDEX. 637
liAiTGAflTEB, Dl7GHT OF, enfraiiohisements in manors of, 427.
Land Commibsionebs. See Board of Agriculture,
Laud Tax Bedbmftiox Aots,
enfranduBement by limited owners under, 437.
by corporations, &c., under, 437, 438.
enrolment of enfranchisement deed under, 438.
Lakds Glatjsbs Oonbolidation Aot, 1845,
conveyance of copyholds under, 106 — 110.
application of compensation for copyholds under, 109, 110.
acquisition of waste lands under, 292, 293.
distribution of compensation for commonable lands under, 292.
conveyance of commonable land by owner of soil under, 295.
effect of enrolment of conveyances under, 418.
enfranchisement of lands imder, 418 — 420.
time for enfranchisement proceedings under, 418.
ascertainment of compensation for lauds under, 419.
compensation to steward of manor on enfranchisements, 420.
Lease,
by copyholder, general rule as to, 34, 35.
specicu. customs as to, 35.
effect of tmauthorised, 35, 230.
with lord's licence, effect of, 35, 36, 94, 229, 230.
must follow terms of licence, 36.
lord's power to grant licence for, 36.
of land in regis^ district, 94, 95.
by tenant for life of settled copyholds, requisites of, 104.
by heir before admittance, 149.
effect of forfeiture of copyhold upon, 230.
how affected by enfranctusement of copyhold, 374, 415.
Leet, Coukt. See Courts, Manorial (6),
Licence to Alienate,
when granteble by steward, 312.
in parcels, lord may grant notwithstanding custom, 521.
Licence to Demise,
effect of, 35, 36, 230.
by lord having limited estete, 36.
provisions of Settled Land Act, 1882, as to, 36, 37, 103.
oy tenant for life under Settled Land Acto, enrolment of, 103.
lord not compellable to grant, 230.
form of, 506.
Licence to Inclose, grant of, by lord, 279, 280.
Limitation Acts,
effect of 32 Hen. YIQ. c. 2... 212.
Act of 1833 as to heiiote and other casual services, 213 — ^218.
when right to bring action accrues, 213, 214.
do not apply to rents reserved on leases, 214.
if rent pavable at greater intervals than twenty years, 214.
lapse of statutory period without render of services, 219, 222.
if lord holds for statutory period under seizure quousque, 219.
638 INDEX.
■
Ltebsabt akd SoiKNTiFio IiraTiTUTioir Act, 1854,
grant of waste land for puipoBes of, 299.
enfranchisement of lana conveyed for purposes of, 439.
consents necessary to enfranchisement of umd under, 4d9.
LiTTLBTON,
definition of tenant by copy of court roll, 1.
tenure in yilleinage, 3.
burgage tenure, 7.
Local Govsrnment Boabd, enfranchisement by, under Poor Law
Acts, 438, 439.
LoOAL Begistby Acts. See Begiitry Acta.
LOBD,
Toluntary grants by, 46 — 49.
acceptance of surrender by, 62, 63, 69, 81.
may appoint attorney for lunatic or infant, 70, 71, 154.
when compellable to admit, 72, 150.
when entitled to compel admittance, 72, 152.
cannot enforce covenant to surrender, 74.
consent of, to vesting orders under Trustee Acts, 98, 99.
when entitled to seize quouagtte, 72, 152, 156.
power of, on seizure quouaqtiey 153.
action by, to recover fine, requisites of, 190.
quit rent or heriot, 190, 210, 212.
right of, to trees and mineralB, 232->-234.
to sport over lands within ambit of manor, 238.
privileges of, under franchise of estrays, 240, 241.
tmder franchise of waif, 241, 242.
tmder franchise of wreck, 242 — 244.
under right to hold fairs and markets, 244—246.
under right of frank-foldage, 246.
rights of, over wastes, 248, 272 — 275.
remedies of, as owner of the wastes, 275, 276.
approvement of wastes by, 276 — 278, 296—298.
grants or lease of wastes by, 65, 279—284, 292, 298, 299.
compellable to hold manorial court, 300.
restrained against holding unnecessary courts, 300.
position of, m manorial courts, 304.
now far represented by the steward, 311, 377.
right of, to custody of court-rolls, 314.
consent of, to reform entry in court-rolls, 314.
may revive tenure of ancient demesne, when, 325.
purchase of copyhold by, 349, 350.
may revive copyhold tenure, when, 46, 349, 352.
reservation of rent services on enfranchisement by, 353.
investigation of title of, on enfranchisement, 356, 414, 415.
remedies of, for commutation fines, 364.
who is, for purposes of Copyhold Acts, 366, 376, 377.
declaration of title by, 366, 376, 377, 484.
compulsory extinguishment of majiorial rights by, 374.
when entitled to compel enfranchisement, 375.
death of, during enfranchisement proceedings, 378.
purchase of interest of tenant desinng enfranchisement by, 384.
powers of, as to enfranchisement rent-charges, 4(X). 401, 402.
INDEX. 639
LOSD — continued,
receipt and reooyery of enfranchisement consideration by,
402—406.
charge and recoveir of enfranchisement costs, 407 — 412.
right of, to minerals on enfranchisements, 415, 416.
power of, where joint-tenant with Crown, 427.
who is, for enfranchisements tmder University, &c. Estates
Acts when manor on lease, 436, 437.
consent of, to include reserved rights in enfranchisement, 481.
LOBD Wobsley's Act. See Common Fields Indosure Ads.
Lot-Meadow, may be subject of copyhold tenure, 15.
Lunatic,
when bound by his surrender, 55, 56.
powers of committee of, 55, 56, 71.
admittance for, who may take, 71, 155.
who may act for, under Copyhold Acts, 377, 381, 382.
descent of enfranchised lands belonging to, 414.
Mandamus,
to compel enrolment of disentailing assurance, 29.
admittance, 72, 86, 150.
does not lie in Crown manors, 72.
Manob,
copyholds are parcel of, 1, 2, 5.
customary freeholds are parcel of, 5.
nature of, 9 — 12.
by reputation, 10, 248, 301, 327.
suspension of, 10.
whether divisible, 10, 11, n.
creation of, 10, n.
necessary incidents of, 11, 12, 300.
presumption as to boundary of, 11.
foreshore may be parcel of, 12, 242, 328.
alienation of demesnes of, 10 — 12.
ambit of, 13.
effect of a devise of, 13, 91.
a conveyance of, 13, 239.
may be the subject of copyhold tenure, 14.
customs prevailing in, 18 — 20.
customary descent of, 137.
existence and boimdaries of, how proved, 327 — 335.
custom in one, when evidence of custom in another, 342.
transfer of mortgage on, in enfranchisements, 408.
See also Crovm Manors ; Ecdeeiastical Manors.
Manobial Begobds. See Court Bolls ; Minute Books,
Maps, when admissible as evidence, 335.
Mabket. See Fairs and Markets,
Mabbied Woman,
bar of entail by, 31.
consent of, as protector of settlement, 31.
grant or surrender of copyholds to, 49, 60.
640 INDBX.
Marbied Woman — conUntied,
release of freebenoh by, 58, 54, 93.
oonyeyance of oopyholds by, 56, 57, 93.
appointment of attorney by, 57, 58.
admittanoe of, 71. .
devifle by, 86.
conveyance of equitable estate of, 93, 94.
entitled to act in enfrandhisements as 9. feme eole, 377> 382.
Master of the Bouls,
acceptance of custody of the court rolls by, 316, 418.
rules by, for inspection, &o., of court rolls in bis custody, 316.
Merton, Statute of,
provisions of, as to approyement, 276 — 279.
refers to common of pasture only, 277.
approyement under, differs from customary indosure, 280.
Metropolitan Commons Aots,
management of commons in metropolitan police district, 290.
fees of Board of Agriculture for transactions under, 495.
Minerals,
effect of wrongful taking by copyholder, 227, 233.
lord's rights to, in absence of special custom, 232, 234.
tonant*s interest in, 232.
lord's remedy against stranger or tenant taldng, 233.
tenant's remedy against wrongful taldng of, 233.
custom may yary righto to, 233, 235.
what included in term, 234.
measure of damages for wrongful taking of, 235.
special customs as to, 236.
when copyholder for lives may have right to, 236.
effect of Prescription Act, 1832, on customary claims to, 236.
evidence of user as to right to take, 237.
tmder freehold lands may be parcel of the demesnes, 328.
lord's right to, on compulsory enfranclidsement, 375, 416.
easemente for, on enfranchisements, 364, 415, 416.
MnnxTE Books,
steward should keep, 313.
inspection of, 315.
Mortgage,
of copyholds, how usually effected, 67, 79.
when admittance usually taken on, 79, 80.
where copyholds are held for lives, 80.
transfer of, how effected, 80, 81.
discharge of, 81, 82.
equitable, how made, 82.
belonging to building, &c. society, 103.
how ^ected by enfranchisement, 374.
of manor, how yoluntary grante affected by, 47, 49.
may be paid off on enhrandusement, 403.
may be transferred on enfranchisement, 408.
Mortgagee,
admittance of, when usually taken, 79.
effect of, 80.
INDEX. 641
MoBTOAGEB — corUtnued.
remedies of, 80, 81.
estate of, yestmg order as to, 96, 97, 102.
under Vendor and Purchaser Act, 1874. . .101.
Oonyeyancing, &o.. Act, 1881... 101.
Copvliold Act, 1887. ..101.
Building, &c. Society Acts, 103.
escheat of, 221, 222.
when entitled to claun by escheat, 222.
conyiction or attainder of, 224.
when entitled to enfranchise, 367, 380.
MOBTQAGOB,
when deemed a trustee refusing to oonyey, 79.
when re-admittance of, necessary, 80.
effect of death of, intestate without heirs, 222.
MoBTHAiN AUD Chabitable XJses Aot, 1888,
applies to copyholds, 61.
enrolment of assurances under, 61.
NEouscrr,
to take admittance, 72, 150, 152.
to render seryices due, 223, 230.
of lord to enforce seryices, 218, 337.
NOMINAISOK OF SuOGESaOB,
light of, in copyholds for liyes, 43.
effect of, 36, 43, 235.
NON-USEB,
of right of common, 270, 343, 344.
of court-baron, 300, 336.
of court-leet, 336.
of free- warren, 336.
when evidence against existence of custom, 218, 341.
Notice,
of holding of customary court, 305.
of enfranchisement proceedings, 365, 433, 492.
of desire for enfrandiisement, 383, 384, 477.
of acceptance of scale of compensation fixed by Board of
Agriculture, 383.
of appointment of yaluer, 388, 482.
OOOUPANOY,
no general occupancy in copyholds, 33.
there may be special, 34.
deyise of estate in special, 34, 85.
fine payable on taking by special, 183.
OOOTJPIEBS,
cannot claim rights of common, 260.
cannot share in compensation for compulsory taking of com-
monable lands, 293.
protection to, on enfranchisement, 415.
E. TT
642 INDEX.
Open Fields,
shares in, may be oopyhold, 15.
general surrenders in, 52.
excihan^ in, 111, 120.
ascertainment of boundaries in, 120.
rights of common in, 249, 291.
regulation of, 290, 291.
Open Bevebsion, what it is, 39.
Option,
of renewing copyholds for liyes, 44.
of payment of rent in money or in kind, 211.
Obdeb,
Testing, under Trustee Acts, 96 — 101.
under Lunacy Act, 1890... 102.
as to the application of enfranchisement consideration paid into
Court, 403, 404, 426, 434, 436, 437.
by Board of Agriculture —
for exchange, 113.
for partition, 119.
for regulation, &o. of common, 289.
for eiuranchisement throughout manor, 422.
for enfranchisement of umyersity and college estates, 435,
436.
extending time for appointment of valuers, 389, 483.
appointing yaluer, 389, 483.
declaring amount of enfranchisement compensation, 488.
appointing trustees, 488.
OtTTLAWBY, forfeiture for, 225.
OWNEB,
definition of, in Copyhold Act, 1887... 374, 570.
compulsory extinguishment of manorial rights by, 374, 370.
charge of enfranchisement consideration and expenses b}-; AiAi.
OxPOBD, Univebsity of,
enfranchisements by, 434, 435.
See also University Eetatei,
OzoANO, nature of, 16, n.
PabtiTAmentaby Sxjbvey,
when copy of, is evidence, 334.
instance of, as evidence, 337.
Pabtttion,
of msoLOVi how made, 10.
effect of, 10, 11.
of copyholds, how made, 117, 118.
under Copyhold Acts, 118.
agreement for, how formerly enforced, 118.
under Inclosure Acts, 118 — 120.
instructions of Board of Agriculture for, 445.
fees of Board of Agricultui'e on, 452.
application to Board of Agriculture for, 455.
INDEX. 643
Pasture,
when share of, may be copyhold, 15, 16.
reoipiooal right of, in open field, 249.
common of, when appurtenant, 249, 254, 258.
who may claim, as appendant, 251, 257.
incloBures against common of, 276—287.
inclosure of stinted or gated, 288.
regulation of common of, imder Inclosure Acts, 289, 290.
in open fields, regulation of, 290, 291.
Pasturk-Gatb,
nature of, 16, n.
may be copyhold, 16, n.
Penal Statutes, when applying to copyholds, 124.
Perambulations, when evidence of boundaries, 335.
Perpetuities, rule against, 27.
Personal Estate, when copyholds may pass as, 38, 39, 42.
PlOKAQE,
definition of, 138, 245.
customary descent of, 138.
Piscary,
common of, nature of, 250, 277.
not affected by statutes as to approyement, 277.
copyholder's right of, effect of enfranchisement on, 357.
lord's right to, on commutation or enfranchisement, 364, 416.
Plan, of land to be enfranchised, when to be made, 391.
Plough-bote, what it is, 232.
Poor Law Acts, enfranchisement of land under, 438, 439.
Possessio Fratris, 140, 141, 146, n.
Possession, Lite,
if more than one, who admitted, 38.
power of, to prevent creation of fi'esh estates in remainder, 40.
Possibility of Estate,
after fee conditional, 26.
after issue extinct, 26.
cannot be surrendered, 53, 54.
deyise of, 85.
conveyance of, 94.
Power,
of appointment in copyhold conveyances, 24.
refusal of surrender containing, 51, 81.
to purchaser to save fine, 89.
of attorney. See Attorney,
of nominating successor. See Nomination,
Precept to seize quoutque, forms of, 505, 506.
Preference in renewals of copyholds for lives, claim for, 43.
Prescription,
daim to franchises by, 11, n., 238.
right of free- warren by, 238.
right of estrays by, 240.
T T 2
644 INDBX.
Pbescbiftiok — coniinued.
claim to take waif by, 241.
take wreck oy, 242.
hold fairs and markets by, 244.
right of frank-foldage by, 246.
profit a prendre bj, 248.
when copyholders can claim by, 249.
common appendant should not be claimed by, 251, 258.
common of yidnage may be claimed by, 252.
freehold tenants may claim rights of common by, 257, 258.
rights of common in gross may be claimed by, 259.
FsBSCRiPTioK Act, 1832,
customary claim under, 19, 343.
S revisions of, as to claims, 236.
oes not apply to claim by copyholder, when, 236.
rights of common in gross not within, 259.
what is an interruption within meaning of, 344.
Fbbsbntment,
of surrender, &c., unnecessary, 65.
of lord's right to escheat, 220.
by homage, when admissible as eyidenoe, 332, 333.
effect of, 332, 334, 335.
form of, of neglect of service by tenants, 497.
of death of copyhold tenant, 497, 498.
of will under which admittance claimed, 497.
PBiyATK Act of Pabuament,
effect of, as a conveyance, 96, 110.
proof of, 327.
Pbiyileoed Yilleinaqe, nature of, 4.
Peoclamatioks,
for heir to take admittance, how made, 153.
notice of, when required, 153, 154.
must be made before seizure quou$qu€y 154.
forms of, 498.
Pbopbietoe in CSopy holds for Lives, 42.
Pbotectob of Settlement,
consent of, how given, 28, 29.
enrolment of, 28.
effect of, 31.
who generally is, 31.
agreement by, to withhold consent void, 31, 32.
form of consent of, to disentailing assurance, 505.
Pbovisional Admittance,
object and effect of, 90, 183.
fine payable on vacation of, 183.
PXTBLIO PUBPOSES,
conve}raiice by infant for, 55.
acquisition of copyholds for, 105, 106, 107, 438, 439.
PUBGHASEB,
right of, before admittance, 63, 64, 74.
for value, how protected, 67, 73, 74, 78.
INDEX- 646
PiTROHASEB — conHfiued,
searcheB to be made by, 75.
what expenses i>ayable by, 76.
right of, to specific performance, 77, 78.
descent to be traced from, 142.
when lord is, of copyholds, effect, 349 — 351.
Puke YiLLEiNAaE, nature of, 3, 4.
FuEFEBSTUBS Land, 131, n.
Qualified Fee Simple, nature of, 25, 26.
QUAMTTTM OF FiNE,
importance of ascertaining, in copyholds for lives, 43, 174, 344.
may be certain or arbitrary, 173, 174.
how ascertained when arbitrary, 176, 177, 344.
QuANTTTH Mebxtit, when the limit of steward's fees, 317 — 321.
QUABET,
right of copyholder to open, 227, 235, 236.
to use, 250, 256, 272.
right of owner of waste to o^n, 273.
lord's right in, on commutation and enfranchisement, 364, 416.
Quasi Entail of Copyholds, 34.
Quasi Fee Simple in Coptholds, 43.
Queen Anne's Bountt, Governobs of, when enfranchisement
consideration may be paid to, 405.
Quia Emptoues, Statute of,
creation of manors before, 10, n.
prevented creation of new tenures, 11, 12.
neriot service must have been created prior to, 198, 207.
common appendant must be prior to, 251, 258.
prevents grants in free alms except by crown, 325.
Quit-Kents,
customary tenants liable to, 5.
transfer of, to lands exchanged for copyholds, 114, 450.
in proceedings for recovery of, lands must be shown, 190, 212.
nature of, 211.
apportionment of, on re-grant of tenement, 211.
cannot be varied on re-grant, 211.
if alternative, election is with tenant, 211.
lord's remedies for, 211, 212.
effect of Statutes of Limitation on, 212, 215, 218.
extinguished by enfranchisement, 212.
may be compulsorily extinguished, 212, 375.
effect of wilful refusal to pay, 230.
Ee-Admittancb,
of mortgagor, 67, 68, 79, 80.
of copyholder, 73. ^
on death of admitting lord, fine payable od, 183.
646 IKDBX.
Beasonablekess,
of custom, 19, 234, 341.
of fine, 176—177.
Receipt,
for enfranchiseinent consideration, who entitled to giro, 402, 403.
form of, 489.
Beooyeby, bar of entaUs in copyholds formerly by, 27, 345.
Bedemftign, Equity of,
conyeyance of, 93.
customary descent of, 139.
Begistby Acts, list of, 95, n.
Be-Gbant,
when lord may make, 46, 220, 349.
apportionment of quit-rents on, 211.
form of, of copyhold for liyes, 503.
Release,
conveyance by deed of, 22, 91, 93.
of right to take admittance, presumption of, 94.
when fine not due on, 190, 191.
of customary services and tenure not to be presumed, 218, 337.
when neglect of lord will be evidence of, 218, 337, 3^^.
of right of common, effect of, 269, 270.
when presumed, 270, 271.
Belief, Cttstomaby,
on alienation of part of tenement, 208, 209.
nature of, 210.
how usually ascertained, 210.
not apportionable, 210.
not payable on death of joint tenant or coparcener, 210.
not Que after enfranchisement of land» 211, 358.
compulsory extinguishment of, 211, 374.
effect of Statutes of Limitation on, 212 — 218.
not due on death of lord or tenant during enfranchisement
proceedings, 378, 382.
BElLAmDER, TeNAITT IN,
admittance of, when necessary, 73, 185, 186.
descent of lands to, 136.
fine payable by, 185, 187.
enfranchisement enures for benefit of, 355.
notice of commutation or enfranchisement to, 361, 365.
form of notice of enfranchisement proceedings to, 492.
See also Beventon, Tenant in,
Bbnewal,
right of, by copyholders for lives, 43.
proof of, 43, 174, 344.
effect of, 43, 235, 368, 380.
in ecclesiastical manors, ascertainment of, 117, 429.
habit of, effect of renewal by trustee where only a, 44.
covenants for, on mortgage of copyholds for lives, 80.
of lease, covenant for, not a cause of forfeiture, 229.
fine in copyholds for Hves where no right of, 174, 344i
INDEX. 647
Bent,
whether a subject of copyhold tenure, 14, 17.
apportioned on compulsory acquisition of copyholds, 108, 109.
customary descent of, 138, 139.
if incident to reversion will follow reversion, 139.
apportionment of commutation, 363, 364.
apportioned on enfranchisement in ecclesiastical manor, 433.
Bent of Assise. See Quit-BenU,
Bent-Ohaege, Enfranchisement,
when consideration for voluntary enfranchisement, 369.
when consideration for compulsory enfranchisement, 398, 399.
oonmiencement of, 399.
computation of, in compulsory enfranchisements, 399.
dates of payment of, 399.
mode of recovering, 400.
action of debt lies for arrears of, 400.
when redeemable, 401.
amount of redemption-money, 401.
a first charge on the land, 401.
when appurtenant to the manor, 401, 402.
sale of, by owner having limited estate, 402.
payment of redemption-monev of, 369, 403, 404.
apportionment of payments of, by Board of Agriculture, 421.
Bepresentation, Bioht of,
in descent in gavelkind, 128.
in borough-english and junior-right descents, 134.
how affected by Inheritance Act, 1833... 143, 144.
Bepresentative Suits, by commoners, when, 266, 267.
Beputation,
evidence of existence of manor, 327, 328.
boundaries and contents of manor may be proved by, 329.
when admissible as evidence, 329, 330, 336, 339.
instances of, as evidence, 331.
when not admissible as evidence, 331.
right of free-warren may be proved by, 336.
proof of custom by, 339.
BssuLTiNa Trust,
doctrine of, important in copyholds for lives, 23, 42.
when presumea, 23, 42.
how rebutted, 23.
Beversion,
rules relating to estates in, 21, 38, 39, 143.
reversion-copy in copyholds for lives, 38, 39.
tenant in, bound by voluntary grant, 49.
descent of, 143.
fine payable by tenant in, when, 184 — 186.
reversion on lease of copyholds after enfranclusement, 374, 415.
enfranchisement in manors —
where Crown has, 426, 426.
where ecclesiastical corporation has, 434.
where Ecclesiastical Commissioners have, 434.
where university or college has, 437.
See also RenuUnder, Tenant in.
648 INDBX.
Beverteb, Possibility of»
what it is, 26.
may be devised, 85, 90.
conveyanoe of, 94.
descent of, 136, 137.
BlQHT OF EZTTBY,
devise of, 85.
conveyance of, 94.
descent of, 137.
fine on entry under, 184.
Satisfied Tebhs Act, copyliolds not within, 24.
Scale,
of enfranchisement compensation, 383, 473.
of allowance to valuers m enfranchisements, 396, 476.
ScHEDXTLE OF ApPOBTiomcENT, Commutations and enfranchise-
ments by, abolished, 360, 540.
School Sites Acts, conveyances and enfranchisements under, 105,
439.
Sea-Shobb. See ForeaJiore.
Seizttbe Quousque,
to compel admittance, 72, 152.
proceeainffs in, require greatest accuracy, 152.
lord's rights on, 152, 153, 219.
when to DC made, 153.
proclamations to be made before, 154.
of undivided shares, when possible, 156.
not competent to enforce fine, when, 156.
form of proclamations prior to, 498, 499.
precept for, 505, 506.
return by bailiff on precept for, 506.
Sepabate Ezamikation of Marbttct) Woman, when necessary,
31, 56, 93.
Sepabate Pastubaqe, may be subject of copyhold tenure, 15.
Sequels, meaning of, 62.
Sebvices,
nature of, division of tenures according to, 3.
in free alms and military tenures, 3.
in soca^ tenure, 3.
in villemage, 3, 4, 5.
in tenant;-ri^ht estates, 6, 6.
of freehold tenants incident to every legal manor, 9, 10.
on grant of incorporeal hereditaments, no reservation of, 18.
customary descent of, 137.
by copyhold tenants, what usually due, 196.
release of, when presumed, 218.
neglect to perform, effect of, 223.
presumption as to continuance of, 337.
barred by lapse of time, when, 337.
on enfranchisement, lord cannot reserve, 353, 354.
INDEX. 649
Settled Lahtd Acts, 1882 to 1890,
licenoe to demise by lord of settled manor under, 36, 87, 103.
when infant is tenant for life under, 55.
who may act for infant tenant for life under, 55.
settlement of copyholds under, 61.
oonyeyance of copyholds by deed under, 103, 104.
lease of settled copyholds, to conform to custom, 104.
what is settled copyhold land for purposes of, 1€4.
tenant for life of settled manor may enfranchise, 354.
Bettlemext, of copyholds, how usually effected, 60, 61.
Sheepoatb, may be of copyhold tenure, 16, 16, n.
Sheephbave, may be of copyhold tenure, 16.
Sheepleaze, may be of copyhold tenure, 16, 16, n.
Sheep-walk, Bight of. See Fold'Course.
SniFrma Seyebalty in open field may be of copyhold tenure, 15.
SniFTiNa Uses,
may be declared in surrenders, 24, 60.
when lord may object to, 51, 60.
whether fine payable on admittance on, 185, 186.
SHOOTlNa, BlOHT OP. See Sporting, Bight of.
Socage Teihtbe,
nature of, 3.
yarieties of, 6.
ancient demesne, how converted into, 7, 325.
grants of waste by lord when held by, 15, 279, 280.
customary descent of lands held by, 126, 127, 128.
dower in lands held by, 157, 158, 161.
estate by the curtesy m, 166.
guardiauflhip of infant in, 169.
heriots in, 198--200.
relief payable in, 210.
tenants in, rights of common of, 249, 257.
what tenants in, haye common appendant, 251, 257.
conyersion of copyhold tenure into, 352, 353, 414.
Soke Lahd, 131.
Sole Pastueaqe, may be subject of copyhold tenure, 15.
Special OoouPAifCT. See Occupancy,
Specific Pebfoemance,
of contract to sell coj^yholds, 77, 78, 219.
for partition of copyholds, 118.
Spobukq, Bight of,
by lord oyer manorial wastes, 238.
copyholds, when, 238.
freeholds within ambit of manor, when, 238.
after commutation or enfranchisement, 238, 364, 375, 416.
oyer allotments, who generally has, 239, 240.
SPKiKomo Uses. See Shi/ting Uses.
650 INDEX.
Stalulge,
what it is, 138, 245.
may be subject to customary descent, 138.
Stamp Act, 1891,
steward's duties as to copies of court roll, 312, 313, 346, 579.
provisions of, are revenue regulations, 346.
stamp duty on copyhold assurances, 578, 579, 585.
extracts from, 572 — 588.
Statutes,
applying to copyholds, general rules as to, 121, 122.
if m general t^nns or d^aratory, 122, 123.
extended to copyholds by benign interpretation, 124, 125.
Statutes Cited. See Table of Statutes Cited,
Steward,
voluntary grant by, 49, 311, 312.
surrender, acceptcmce of, by, 51.
refusal of, by, 5.1.
preparation of, by, 51, 312.
admittance by, 68, 151, 312.
duty of, to give tenant notice of right to enfranchise, 70, 156,
312, 380.
to deliver stamped copy of court-roll, 75, 312, 313, 346.
on discharge of mortgage, 81, 103.
to enrol assurances, 28, 29, 30, 37, 51, 60, 65, 67, 75,
81, 85, 90, 98, 102, 103, 104, 107, 111, 114, 151, 312,
313, 345—347, 359, 364, 397, 425, 439.
to assess and demand &ies, 174, 175.
in manorial courts, 300, 304, 306.
in court-leet, 302.
as to entries in court-rolls, 313.
under Stamp Act, 1891. ..312, 346, 579.
fees of, on surrender, bv whom payable, 76.
on enrolment of devises, 85.
of certain statutory conveyances, 103, 104,
107, 192—194, 323, 418.
on enrolment of admittance, 151.
generally, how regulated, 317.
cases as to fees chargeable by, 317 — 321.
what will be reasonaole, 321.
where estates undivided, 322.
in case of allotments under several titles, 322.
on ^ving notice of right to enfranchise, 323.
for mspection of court-rolls after enfranchisement, 413.
appointment of, 308, 309.
forfeiture of office by, 309.
Lord Coke's observations on the office of, 309.
validity of acts of, 309.
when entitled to appoint a deputy, 310, 311.
when an infant may discharge duties of, 310.
definition of, in Copyhold Act, 1841... 3 10.
how far he represents the lord, 311, 377.
cannot deal with reserved rights on enfranchisement, 311.
INDEX. 651
Steward — continued,
when entitled to hold cnstomary courts, 312.
to grant licences to alienate in parcels, 312.
should keep a minute book of proceedings in court, 313.
when entiued to custody of court-rolls, 314.
should si^ copy of court-roll, 346.
proof of signature of, when required, 346.
oraft of entry on court-roll by, when eridence, 347.
when copy of award of enfranchisement to be served on, 397.
compensation payable to, on commutation, 412.
on Toluntary enfranchisement, 412.
on compulsory enfranchisement, 412.
on enfranchisement under Lands
Clauses ConsoKdation Act, 420.
form of re-grant of copyhold for lives by, 503.
of precept to seize quoiuque by, 505, 506.
of licence to demise by, 506.
Stint op Pasture,
may be copyhold, 16, 16, n.
inclosure against, 288.
Stinted Commons or Pastures,
nature of, 255, 288.
effect of, 262, 293.
bye-laws by homage for, 307.
Stones,
in copyhold tenement may be taken for eetovers, 227, 231.
mterest of copvholder in, 232, 235.
in wastes, rights of commoners to, 250, 256, 277.
See also Minerals ; Qitarry,
Strays. See Estrays,
Successive Coptholds for Lives,
grants may be made for, 39, 40, 42.
when lives in, may be barred, 40, 41.
fines payable in, 179.
SlTFFERANOE, TENANT AT,
copyholder compared to, 2.
copyhold may be held by, 37.
grant by lord who is, 48, 49.
Suit op Court,
when copyholder bound to perform, 197.
consequences of refusal of, 197, 230.
lord's remedy to enforce, 197.
cannot be done by attorney, 197.
before admittance, 197.
by married woman, 198.
by one of several joint tenants, 198.
by infants, 198.
effect of Statutes of Limitation on, 212 — 218.
summons to perform, 305.
Suit, Heriot. See Heriot (6).
652 INDEX.
SUBBENDEB,
uBual form of conveyance in oopyholds, 1, 50.
how usually made, 51.
improper forms of, 51.
steward may have right to prepare, 51, 52, 312.
controls admittance, 52, 63.
requisites of, 53.
what will be an implied, 53.
who may make, 53, 54.
what may be the subject of, 53, 54, 64.
of equitaole estate tail, 53, 93.
of freebench, 53, 54, 93.
by infant, 54, 57.
when lunatic bound by his, 55, 56.
by married woman, 56, 57.
may be made by attorney, when, 57 — 59.
may be in general terms, 59.
who may take, 59, 60.
uses of, not entered on coxirt-roll, 60, 313.
when trusts may be inserted in, 61.
construction of, 61, 62.
effect of, 62, 63, 148.
presentment of, imnecessary, 65.
to be entered on oourt-roU, 65.
when revocable, 66.
when it may be attacked as fraudulent, 66, 67.
will be supplied in certain cases, 67.
may be made on condition, 67, 79.
may become void by custom if no admittance taken on, 72.
eSect of refusal by vendor to make, 73, 74.
dayne surrender in Taunton Deane, 78, 79.
peculiax form of, in Yetminster, 79.
mortgage made by a conditional, 79, 81.
to such uses as mortgagee may appoint, refusal of, 81.
to use of will, effect of, 82, 83.
dormant surrender in Taunton Deane, 83.
to use of will now unnecessary, 84.
acceptance of, by.steward who is an infant, 310.
evidence of, 346.
form of, in court, to purchaser or mortgagee, 499.
by way of disentailing assurance, 500.
by married woman, 501.
by copyholder for lives, 502.
out of court, by copyholder for lives, 503.
by copyholder in fee, 504.
by equitable tenant in tail in possession,
504.
Sttbbekdeeeb,
estate and powers of, before admittance, 63, 64.
when surrenderor is trustee for, 63.
estate of heir of unadmitted, 63.
may devise, though unadmitted, 64, 84.
may accept or compel enfranchisement, when, 355, 367, 380.
iifDEX. 653
SUBBXNDEBOB,
who may be, 53—57, 60, 61.
when entitled to appoint attorney, 57 — 59.
estate of, after suirender, 63.
when trustee for surrenderee, 63. «
SUKVBY,
when evidence of boundary or contents of manor, 332.
manorial, to be signed by tenants, 333.
instances of, as eyidence, 333, 334.
of Church and Crown lands, parliamentary evidence by, 334.
effect of private, 334.
Suspension,
of copyhold tenure, how caused, 349, 350.
effect of, 351.
Swans, may be estrays, 241.
Tenant,
entitled to notice of right to enfranchise, 70, 156, 380.
interest of, in minerals, 232^234.
measure of damages to, for wrongful taking of minerals, 235.
acquisition of common law interest in copyholds by, 350.
agreement for commutation of manorial rights by, 361.
char^ of commutation consideration money or value by, 363.
who IS, for enfranchisement under Copyhold Acts, 367, 380.
where admittance for derivative interest, 367, 380, 421.
may compel enfranchisement or extinguishment of manorial
rights, when, 375, 376, 378, 379.
may require declaration of title of lord, when, 376.
when mortgagee is, for purposes of Copyhold Acts, 380.
death of, pending enfranchisement proceedings, 382.
election of, as to form of compensation for compulsory enfran-
chisement, 399.
right of, to renewal of grant in ecdesiastical manors, how
ascertained, 117, 429.
Tenant at Sufferanoe. See Sufferance, Tenant at.
Tenant at Will,
copyholder compared to, 2.
copyhold maybe held by, 37.
grants by lord who is, 47, 48.
Tenant by Copy of Coubt Boll, who is, and why so called, 1, 2.
Tenant by Entibeties,
surrender of estate of, 56.
wife of copyholder may be, 159.
Tenant-Bight Estates,
where principally found, 5.
nature of, 5, 6, 172.
devise of, 34, 84.
in copyholds for lives, 40, 43, 235.
evidence of, 43, 344.
fines in, 171, 172.
enfranchisement of, 353.
654 ncBBX.
Tenants in Common,
nature of estates of, 21.
grants by lords who are, 48.
admittauce of copyholders who are, 73, 322.
fines payable by, 182.
fines on conyeyanoe by, 187.
heriots payable on deadi of, 201.
by custom on alienation to, 204.
fees on admittance of, 322.
Tenures,
chief division of, in ancient times, 3.
(a) freehold tenures —
frankalmoigne, 3, 324, 825.
military tenures, 3, 6.
socage tenures, 3, 6.
ancient demesne, 6, 325.
burgage, 6, 7, 326.
gavelkind, 6, 8, 326, 327.
[h) copyhold tenure —
Yilleinage, 3, 4.
copyholds proper, 2, 5.
cujstomary freeholds, 2, 5.
tenant-right estates, 5, 6.
custom of husbandry of manor, 5, n.
West of England tenure, 37.
must have been created before 18 Ed. I., 12.
what not the subject of, 14.
mention of incidents of, in conditions of sale, 75, 76.
exchan^ of, under Incdosure Acts, 112, 114, 116.
ascertamment of, when intermixed, 120.
Terms of Years,
may exist in copyholds, 23.
may be made to attend inheritance, 23, 24.
when attendant in copyhold, not within Satisfied Terms Act, 24.
in copyholds of inhentiEinoe differ from copyholds for years, 34.
how created in copyholds of inheritance, 34.
to protect tenant on enfranchisement, 356.
Tee&a Beqis, 6, 325.
TERRnsRS, when boundary provable by, 332.
Timber,
definition of, 227, n.
when copyholder may take for estoyers, 231, 232.
lord's right to, 232.
what interest copyholder may haye in, 232, 233, 235.
may be tiie subject of common of estoyers, 250.
inclosure of waste to promote growth of, 296 — 298.
lord's right to compensation for, on enfranchisement, 394, 474.
See abo Trees.
Tithes,
whether they can be held by copyhold tenure, 16 — 18.
not subject to customs of descent, 17, n., 138.
ToNSXTRE OF Meadow, may be copyhold, 15.
INDBX. 656
Town, definition of, in Commons Act, 1876... 289.
Treasube Tbove, francbise of, may be annexed to manor, 11.
Trees,
growing, may be held by cop^rbold tenure, 14.
wben waste committed by taking, 227.
lord's right to, in absence of custom, 232.
what interest copyholder may have in, 232, 233, 235, 236.
lord's remedy against stranger taking, 232.
copyholder's remedy against lord tcJung, 232.
stranger taking, 232.
claims to, when not within Prescription Act, 1832... 236.
may be the subject of common of estovers, 250.
on common cannot be cut down by commoners, 263.
lord's right to compensation for, on enfranchisement, 394, 474.
Tbespass, Aotion of,
when copyholder might have, 4, 149.
' owners of pasture, &c., may have, 16.
commoners not entitied to, 264.
Trust,
when to be declared in writing, 22.
resulting, important in copyholds for liyes, 23, 42.
may be subject to customary descent, 139.
may be declared in surrender, when, 51, 60, 61.
declaration of, in covenant to surrender, 73.
executory, of customary land, how construed, 139, 140.
estate, descent of, 101.
escheat of, to lord, 221, 222.
Trustee,
renewal by, for whose benefit, 22, 44, 46.
of copyhold for Kves for beneficial owner, 38, 40, 42.
of settlement of copyholds, 60, 61.
when surrenderor is, for purchaser, 73.
when vendor is, within Trustee Acts, 74.
when mortgagor is, for mortgagee, 79.
surrender to, formerly a means of devise, 83.
admittance of, 87 — 89.
power of appointment to, may saye a fine, 89.
effect of disclaimer by, 91, 92.
conyeyance by, yesting order in lieu of, 96, 97.
appointment of new, imder Trustee Acts, 98— 100.
under Oonyeyancing, &c. Act, 1881... 100.
if a lunatic, yesting order in lieu of conveyance or release by,
102.
widow of, not entitled to freebench, 161.
fine on admittance of, 180, 184, 189.
escheat of estate of, 221, 222.
conviction and attainder of, effect of, 225.
notice of enfranchisement proceedings to, 365.
who may act under Copyhold Acts for lords who are, 377.
for tenants who are, 382.
to receiye enfranchisement compensation, 403 — 405.
yacancy in office of, 404.
656 INDEX.
Trusteb — continued,
expenses of enfranchisenieiit, if lord is, 409.
if tenant is, 4l0.
potrers of, to raise enfranchisement consideration in ecclesias-
tical manors, 431, 432.
appointed by Board of A^ricultore, when, 403, 405, 441, 442.
form of appointment of, by Board of Agricnltore, 488.
Trusteb Acts,
Testing orders under, 96 — 101.
escheat of trust and mortgage estates under, 222.
forfeiture of trust or mortg^;e eotatee under, 225.
TUEBABY,
estate in, may be copyhold, 16.
common of, 250, 252, 256, 258, 262, 272.
not affected by statutes as to approvement, 275, 277.
where usually exerdseable, 277.
UlCPIEB IN EnFRANOHISEMENT,
appointment of, 388, 389.
tune for reference to, 388.
for decision of, 388, 889.
may apply to Board of Agriculture for extension of time, 389.
declaration of, before entering on duties, 390.
may order production of documents, 390.
may examine witnesses on oath, 390.
may enter on lands, 390, 391.
power of, to ascertain quantity and boundaries of land, 391.
circumstances to be considered by, 391, 392.
decision of, how to be stated, 394.
must furnish details of decision to Board of Agriculture, 394.
allowance to, 396, 397, 476.
forms of appointment of, 483, 484.
of decision of, 486.
Under-lease, of copyhold after licence to lease, 35, 36.
Underwood,
estate in, may be copyhold, 14, 16.
when waste to cut, 227.
may be taken for estoyers, when, 231, 232.
by commoners, when, 250, 256, 261, 262.
Undivided Estates, seizure quouaque of, when, 156.
Undivided Land, tenant of, for enfranchisement, 367, 380.
Universities and College Estates Acts,
who may enfranchise lands under, 434, 435.
order by Board of Agriculture for enfranchisement under, 435.
application of enfranchisement consideration under, 436.
fees of Board of Agriculture for transactions under, 495.
University Estates,
enfranchisements of, under Universitiee and finlkurn Estates
Acts, 434—437.
what lands may be enfranchised, 4?
consent of Board of Agriculture rec
report of surveyor necessary for, 4^
V
INDEX. 667
UinYERBiTY Estates — continued,
enfraiicliisements of, under TJniy^ and Coll. Est. Acts— con^.
how enfranchisement effected, 435.
payment and application of compensation, 435, 436.
if manor on lease, who is lord, 436.
how compensation applied, 437«
if compensation is a rent-charge under Copyhold Acts, 437.
USAQE, USEB,
cannot preyail against express statute, 19, 20, 342.
may show nature of copyholders* estate, 233.
that foreshore is parcel of manor, 328.
that mines under freeholds are parcel of manor, 328.
copyholders* ri^ht to minerals and timber, 328, 329.
e£fect of, when imcontradicted, 329.
requisites of, as evidence of custom, 340, 341.
user of soil of enfranchised land, 417.
of copyhold land, continuance of conditions as to, after
enfranchisement, 394, 417.
Uses,
may be declared in copyholds, 24.
spnnging and shifting, creation of, 24.
Statute of, does not apply to copyholds, 24, 123.
Yaltteb in Enfranchisement,
when to be appointed, 386, 387.
mode of appointment of, 387, 388, 389.
appointment of umpire by, 388.
tmie for decision of, 388.
for reference by, to umpire, 388, 389.
may apply for extension of time, 389.
remo^of, 389.
declaration of, before entering on duties, 390.
may order production of documents, 390.
may examine on oath, 390.
may enter on lands, 390, 391.
ascertainment of boundaries of land by, 391.
circumstances to be considered by, 391, 392.
decision of, how to be stated, 394.
details of valuation to be furnished by, 394.
scale of allowance to, 396, 397, 476.
allowance of proportionate payment to, if removed, 443.
forms of appointment of, 481, 482, 484.
of notice of appointment of, 482.
of appointment of umpire by, 483.
of decision of, 485.
YssTiNa Ordebs,
under Trustee Acts, 96 — 100.
effect of, on copyholds, 98.
when consent of lord necessary to, 99.
on sale of lands under order of court, 99, 100.
on appointment of new trustees under Trustee Acts, 100.
stamp duty on, 100, 101.
under Lunacy Act, 1890. . . 102.
E. TJ U
658 INDBX.
Ybstusb of Laitd, may be oopyhold, 16.
YioiNAGE, Common op,
nature of the right, 252.
cannot be claimed by copyholders under custom^ 252.
how dei^oyed, 252.
View of FBAirsPLSDaE, what it was, 301.
See CowrtSy Manorial (5).
YlIiLAQE Gbben,
not subject to inclosure tmder Inclosaxe Acts, 288.
statutory provisions for protection of, 288.
YiLLEnr SoGAQE, meaning of, 3.
YiLLEiNAaE, Tenttbe in,
nature of, 3.
varieties of, 3, 4.
Littleton's definition of, 3.
pure viUeina^, 3, 4.
privileged vifieinage, 4.
customary tenants in, 4.
YOLTJNTAET GbANTS,
who may make, 46 — 49, 352.
who may accept, 49.
what estate may be granted under, 49.
admittance on, 50.
forms of, 501—503.
YoLTJNTABY Sttsbendeb, effect of, 66.
Waif,
franchise of, how claimed, 241.
how extinguished, 242.
definition of, 241.
riffht of owner to recover, 242.
when property in, vested in owner of franchise, 242.
Wabrant of Satisfaction, enrolment of minute of, 81.
Wasben, beasts and fowls of, 239. See Fret-Wa^rrm,
Waste,
surrender without impeachment of, refusal of, 51.
a cause of forfeiture, 223, 225.
what will amount to, 225-^227.
may be voluntary or permissive, 225.
Lord Coke's remarks on, 226.
injunction against, 227.
right of, as consideration for commutation or enfranchisement,
362, 369.
Wastes of Manob,
lord presumed to be seised of, 11, 248.
comprised in demesnes of manor, 11.
usu^y subject to rights of common, 11, 248.
grants of portions of, as copyhold, now restrained, 14, 15, 66,
279, 280.
what is evidence of title to, 248, 327.
INDEX. 669
Wastbs O^ "hlLiXfOTi— continued*
rights of copyHolders over, 248 — 257.
of freenold tenants over, 257 — 259.
of ooinmon in gross, 259.
extent of commoners rights oyer, 261 — 272.
of lord's rights over, 272—275.
remedies of owner of, 275.
statutory provisions as to approvement of, 276—278.
indosure from, by lord under custom, 279, 280.
by lord with consent of homage, 280 — 284.
by tenants under custom, 284.
by encroachment, 285.
to whom grants of, may be made, 284.
rights of grantees of portions of, 284.
inclosure of, by lord and tenants under agreement, 286.
under local Inclosure Acts, 286, 287.
under Inclosure Acts, 1845 to 1882... 287— 290.
lease of portion of, for improving residue, 292.
compulsory acquisition of, 292, 293.
apportionment of compensation for acquisition of, 292 — ^295.
inclosure of, to promote growth of timber, 296—298.
conveyance of portion for certain public purposes, 298, 299.
inclosure of portion by g^rdians of poor, 299.
incloBures from, practice as to, at customary court, 304 — 308.
inclosure from, steward cannot authorise, 311.
lord cannot lease without restriction, 279, 342.
Wbbt of Enqlaio), form of copyholds for lives common in, 37, 38.
Westminster the Second, Statttte of,
as to entails, not applicable to copyholds, 122.
as to elegit, not applicable to oopynolds, 122.
approvement of waste under, 275, 276.
Widow,
estate of, in copyholds for lives in West of England, 38.
of surrenderee dying before admittance, rights of, 63, 162.
covenant to surrender may be enforced against, 67.
may inherit by custom, 134, 135.
of heir, when entitied to freebench, 149, 162.
dower of, in freeholds, 157, 158.
in commuted or enfranchised copyholds, 158, 364, 414.
freebench of, in copyholds, 158 — 166.
in equitable estate, 161.
of trustee, 161, 162.
is tenant to lord in respect of freebench, 162.
admittance of, when necessary, 162.
fine payable by, 162, 185.
rem^es of, for freebench, 162, 163*
daim of, to freebench, how barred, 163—166.
right of, under Intestates' Estates Act, 1890... 345.
See also Freebench,
WmowER,
may inherit by custom, 135, 168.
when entitled to customary curtesy, 149, 167.
estate of, in freeholds, 166.
660 INDEX.
Widower — continued.
estate of, in copyholds, 167, 168.
in gavelkind lands, 168.
in commuted or enfranchised oopyholdfl, 168, 169,
364, 414.
fine payable by, 185.
See also Curtesy y Customary,
Well,
1^ copyholder prior to 1837. . .82 — 84.
under Wills Act, 1837. ..84, 85.
enrolment of, on court-rolls, 85, 86.
of infant invalid, 86.
of married woman, 86. ^
of real estate in general terms will include copyholds, when, 87.
Wills Act, 1837,
devise by tenant pur autre vie under, 33, 85, 86, 90.
bv tmadmitted surrenderee or devisee, 64, 84, 91.
estates devisable luider, 84, 85, 90.
regulates fines pavable by devisees, 85.
devises under, to be entered on coiut-roUs, 85.
as to devise by infant, 86.
as to devise by married woman, 86.
as to devises m generjed terms, 87;
effect of, on copyholds, 87 — 89.
extracts from, 515^518.
Wdtohesteb, Oollegb of, power of, to enfranchise lands, 435.
See University Estates,
Wood,
share in, may be copyhold, 15, 16.
when waste to cut, 227.
may be taken for estovers, when, 231, 232.
by commoners, when, 250, 256, 261, 262.
Woods, Oommissionebs of,
privilege of steward in crown manors appointed by, 72.
powers of, to enfranchise lands in crown manors, 423—427.
Weeck,
right to take, how claimable by lord, 12, 242.
effect of, on title to foreshore, 242, 328.
how extrnguished, 243.
what necessary to constitute, 243.
provisions of Merchant Shipping Acts as to, 243, 244.
prescriptive right to take, not provable by reputation, 243, 331.
Wbit of Deceit,
its nature and effect, 7, 325.
when abolished, 325, n.
Wbit of Execution, copyholds may be delivered under, 37, 66, 122.
LOKDOir: 0. F. BOWOBTR, OSBAT NBW aTBBBT, FBTTBB LAm, a.O.
TO THE SECOND EDITION OP
" A TEEATISE ON THE LAW OF COPYHOLDS AM
CUSTOMAEY TENUEES OF LAND "
OONTAININa
THE COPYHOLD ACT, 1894
With Notes on the Sections thereof,
AN ADDENDUM TO THE SAME. TREA TISE'.
BY
CHARLES I. ELTON,
OF ijnoolk's nnr, one of hbb icajestt's oottksbl',
Author of^* The Tenures qfKent^** " The Law of Commons and Waste Lands^" ** A Treatise on the Lav
of Copyholds and Customary Tenures of Land," " 2^ Griffins of English History," etc., and
Joint Editor of " A Treatise on the Lata of Copyholds, Ac." {2nd edit.),
and ** Sobinson on Gavelkind ' ' {6th edU. ) ;
m
AND
HERBERT J. H. MACKAY,
OF THB UDDLB XBHFLB, BAXBIBTSH-A.T-LK'W, Ui.B.,
Joint Eiilor of " A Tnatiat m Ou Lom of CopyhMt, Jte." (Snd Mt.),
and " Sobituon on aavOlmd," (6th edit.).
LONDON:
WILDY AND SONS.
LINCOLN'S nflSf AECHWAT, CABBY STEEET, W.O.,
1898.
LONDON:
PBXNTES BY C. F. BO WORTH, OBEAT NEW 8TRKET, FETTEB LANE~E.C.
( iii )
PREFACE.
In 1893, a few months after the appearance of
the Second Edition of " A Treatise on the Law
of Copyholds and Customary Tenures of Land,"
a Bill was introduced in the House of Lords by
the Lord Chancellor for the purpose of consoli-
dating the six Copyhold Acts passed between
1841 and 1887. . The Bill was referred to a Joint
Committee of the two Houses, but was not passed
into an Act in that Session. In the following
year a Bill on the lines settled by the Joint
Committee was introduced, and received the
Royal Assent on August 25th, 1894. It will be
found that this Act closely corresponds with the
analysis of the Copyhold Acts contained in
Chapter XI. of the Second Edition of the Treatise
on the Law of Copyholds and Customary Tenures
of Land above referred to. The Act of 1894,
however, omitted some of the provisions contained
in the earlier Acts which appeared not to have
been put in force and were believed to be of no
practical value. On one or two points on which
some doubt existed, the Act of 1894 contains
a2
lY PREFACE.
provisions which do not appear in any of the
previous Copyhold Acts. The difEerences between
the Act of 1894 and the former Acts are mentioned
in the notes to the sections of the Act of 1894 in
this Supplement.
The Supplement also contains an Addendum
to the Treatise in which additional cases and new
statutory provisions are noted with references to
the paging of the Second Edition of the Treatise.
By means of these references the reader will be
enabled to see at once what the alterations have
been since the appearance of the Second Edition.
An Index to the whole of the Supplement has
been added, and care has been taken to make it
full and complete; and in the Table of Cases
reference is made to as many of the reports as
possible.
CHARLES I. ELTON.
HERBERT J. H. MACKAY.
March, 1898.
( V )
TABLE OF CASES.
PAQB
Abingdon, Baling v., (1892) 2 Ch. 374 ; 62 L. J. Gh. 105; 67
L.T. 6; 41 W. E. 22 73
Applefonrfch, Jenyx v. (1675), 1 Brownl. 182 - - - 74
Arden v. Wilson (1872), L. E. 7 0. P. 535 ; 41 L. J. 0. P. 273 ;
26 L. T. N. S. 887 6
Att.-Gen. v. White (1733), Comyns, 433 - - - 74
Bailey, Western v., (1897) 1 Q. B. 86 ; 66 L. J. a B. 48 ; 75
L.T. 470; 45W.E. 115 72
BaU, PhiUips v. (1859), 6 0. B. N. S. 811 ; 29 L. J. 0. P. 7 ;
6 Jnr. N. S. 48 67
Baring v. Abingdon, (1892) 2 Ch. 374; 62 L. J. Gh. 105; 67
L. T. 6; 41 W. B. 22 73
Beal V, Shepherd (1607), Oro. Jao. 199 - - - 70
Beighton v. Beighton (1895), 43 W. E. 658 - - - 73
Bingham v. Woodgate (1829), 1 E. & M. 32; Taml. 183; 8
L. J. 0. S. Ch. 46 3
Brabant v. Wilson (1865), L. E. 1 Q. B. 44 ; 35 L. J. Q. B. 49 ;
6 B. & S. 979; 12 Jur. N. S. 24; 14 W. E. 28 - 6, 12
Bullen's Case (1607), 6 Eep. 77b; 1 Brownl. 189; Yelv. 186 - 74
Carter v. Carter, (1896) 1 Oh. 62 ; 65 L. J. Ch. 86; 73 L. T.
437; 44W. E. 73 70
Cooke, Searle v. (1890), 43 Ch. Diy. 519 ; 59 L. J. Ch. 259; 62
L. T. 211 22
Cruddas, Eamsey v., (1893) 1 Q. B. 228; 62 L. J. Q. B. 269;
68 L. T. 364 - - - " - - 18, 54, 73, 74
Davis, Swift v. (1799), 8 East, 354, n. - - - - 67
Debbans, Pettis v. (1610), 6 Yin. Abr. 161 - - - 68
Doe V. Scott (1825), 4 B. & C. 706 ; 7 D. & E. 190 ; 4 L. J.
0. S. K. B. 39 67
Doe V. Whitaker (1833), 5 B. & Ad. 409 ; 3 N. & M. 225 - 67
Easton v. Penny (1892), 67 L. T. 290 ; 41 W. E. 72 - - 71
Ecclesiastical Commissioners for England v. Parr, (1894) 2
a B. 420; 42 W. E. 561 ; 63 L. J. a B. 115; 70 L. T.
170 1,69,71,78
Evans, Petty v. (1610), 2 Brownl. 40 - - - - 68
Fletcher v. Ingram (1695), 5 Mod. 127; 1 Salk. 175; Comb.
350 ; Holt, 187 74
Pysher, Lincoln (Earl of) v. (1596), Cro. Eliz. 581 - - 74
VI TABLE OF CASES.
PAGE
Godfrey's Case (1614), 11 Eep. 42a - - - - 74
Gyde, Lingwood v. (1866), L. R. 2 C. P. 72 ; 36 L. J. C. P.
10; 16 L. T. N. 8. 229; 15 W. E. 311 - - - 6
Hardinge, Thompson v. (1845), 1 0. B. 940; 14 L. J. 0. P.
268; 9 Jur. 927 3
Haxrington (Earl of), Howitt v., (1893) 2 Ch. 497 ; 62 L. J. Ch.
571 ; 68 L. T. 703 ; 41 W. E. 664 - - - - 72
Hill, Portland (Duke of) v. (1866), L. E. 2 Bq. 765 ; 35 L. J.
Ch. 439 ; 12 Jnr. N. S. 286 ; 15 W. E. 38 - - - 3
Hodgson, Myers v. (1876), 1 0. P. Div. 609 ; 46 L. J. 0. P.
603 ; 34 L. T. N. S. 881 ; 24 W. E. 827 - - - 36
Howitt V. Harrington (Earl of), (1893) 2 Oh. 497; 62 L. J. Oh.
671; 68 L. T. 703; 41 W. E. 664 - - - - 72
Ingram, Fletcher v. (1695), 5 Mod. 127; 1 Salk. 175; Oomb.
350; Holt, 187 74
Jenyx v, Applefourth (1575), 1 Brownl. 182 - - - 74
Kerr v. Pawson (1858), 25 Beav. 394; 27 L. J. Oh. 594; 4 Jur.
N. S. 425 19
Land Oommissioners for England, Eeg. v. (1889), 23 Q. B. Diy.
59; 58 L. J. Q. B. 313; 37 W. E. 538 - - - 7
lidiard and Jackson's and Broadley's Oontract, In re (1889),
42 Ch. Div. 254 ; 58 L. J. Ch. 785 ; 61 L. T. 322 ; 37 W. B.
793 71
Lincoln (Earl of) v. Eysher (1594), Oro. Eliz. 581 - - 74
Lingwood v. Gyde (1866), L. E. 2 0. P. 72 ; 36 L. J. 0. P. 10 ;
16 L. T. N. S. 229 ; 15 W. E. 311 - - - - 6
Myers v. Hodgson (1876), 1 C. P. Div. 609 ; 45 L. J. 0. P. 603 ;
34 L. T. N. S. 881; 24 W. E. 827 - - - - 36
Padwick v. Tyndale (1858), 1 E. & E. 184 ; 28 L. J. Q. B. 90;
33 L. T. N. S. 125; 5 Jur. N. S. 476 ; 7 W. E. 53 - - 6
Parr, Ecclesiastical Commissioners for En^and v., (1894) 2
Q. B. 420; 42 W. E. 561; 63 L. J. Q. B. 115; 70 L. T.
170 1, 69, 71, 78
Pawson, Kerr v. (1858), 25 Beav. 394 ; 27 L. J. Ch. 594 ; 4 Jur.
N.S. 425 19
Penny, Easton v. (1892), 67 L. T. 290 ; 41 W. E. 72 - - 71
Pettis (Petty) v. Debbans (Evans) (1610), 2 Brownl. 40; 6 Vin.
Abr. 161- - - - - - -68
PhilHps V. BaU (1859), 6 0. B. N. S. 811 ; 29 L. J. 0. P. 7 ; 6
Jur. N.S. 48 67
Portland (Duke of) v. Hill (1866), L. E. 2 Eq. 765 ; 35 L. J. Ch.
439; 12 Jur. N. S. 286; 15 W. E. 38 - - - 3
Pretty v. Solly (1859), 26 Beav. 606 - - - - 19
Eamsoy v. Cruddas, (1893) 1 Q. B. 228 ; 62 L. J. Q. B. 269 ; 68
L. T. 364 18, 54, 73, 74
Eegina v. Land Commissioners for England (1889), 23 Q. B. Div.
59; 58 L. J. Q. B. 313; 37 W. E. 538 - - - 7
TABLE OF CASES. Yll
PAOB
Eeynolds v. Woodham Walter Manor (Lord of) (1872), L. E. 7
C. P. 639; 41 L. J. 0. P. 281 ; 27 L. T. N. S. 374 - 6, 11
Eoe V. Summerset (1770), 2 W. Bl. 692 - - - 67
Scott, Doe V. (1825), 4 B. & 0. 706; 7 D. & E. 190; 4 L. J.
0. S. K. B. 39 67
Searle v. Cooke (1890), 43 Gh. Diy. 519; 59 L. J. Gh. 259; 62
L. T. 211 22
Shepherd, Beal v. (1607), Oro. Jao. 199 - - - 70
SoUy, Pretty v. (1859), 26 Beav. 606 - - - - 19
Summerset, Eoe v. (1770), 2 W. Bl. 692 - - - 67
Swift V. Davis (1799), 8 East, 354, n. - - - - 67
Sylvester, Thomas v. (1873), L. E. 8 Q. B. 368 ; 42 L. J. Q. B.
237 ; 29 L. T. N. S. 290 ; 21 W. E. 912 - - - 22
Thomas v. Sylvester (1873), L. E. 8 Q. B. 368 ; 42 L. J. Q. B.
287 ; 29 L. T. N. S. 290 ; 21 W. E. 912 - - - 22
Thompson v. Hardinge (1845), 1 C. B. 940 ; 14 L. J. C. P. 268 ;
9 Jur. 927- - - - - - -3
Tyndale, Padwick v. (1858), 1 E. & E. 184 ; 28 L. J. a B. 90 ;
33 L. T. N. S. 125 ; 5 Jur. N. S. 676; 7 W. E. 53 - - 6
Western v. BaHey, (1897) 1 Q. B. 86 ; 66 L. J. Q. B. 48; 75
L. T. 470; 45 W. E. 115 72
Whitaker, Doe v. (1833), 5 B. & Ad. 409; 3 N. & M. 225 - 67
White, Att.-Gen. v. (1733), Oomyns, 433 - - - 74
Wilson, Arden v. (1872), L. E. 7 0. P. 535; 41 L. J. 0. P. 273 ;
26 L. T. N. S. 887 6
Wilson, Brabant v. (1865), L. E. 1 Q. B. 44 ; 35 L. J. Q. B. 49 ;
6 B. & S. 979; 12 Jur. N. S. 24; 14 W. E. 28 - 6, 12
Woodgate, Bingham v. (1829), 1 E. & M. 32 ; Taml. 183 ; 8 L. J.
O. S. Oh. 46 3
Woodham Walter Manor (Lord of), Eeynolds v. (1872), L. E.
7 0. P. 639 ; 41 L. J. C. P. 281 ; 27 L. T. N. S. 374 - 6, 11
( ^^ )
TABLE OF STATUTES CITED
(OTHER THAN TEE REPEALED COPYHOLD ACTS),
PAGB
20 Hen. m. 0. 4 (Statute of Merton) 73
13 Edw. I. 0. 46 (Statute of Westminster the Seoond) 73
27 Eliz. c. 4 (Defrauding Purohasers) 69
42 Geo. m. 0. 116 (Land Tax Redemption Act, 1802) 89
54 Geo. m. 0. 146 (The Corruption of Blood Act, 1814) 6
2 & 3 Will. IV. 0. 71 (Prescription Act, 1832) 67
3 & 4 Will. IV. o. 74 (Fines and Recoveries Act, 1833) 67, 70
8 Vict. c. 18 (The Lands Clauses Consolidation Act, 1845) 87
8 & 9 Vict. 0. 106 (Real Property Act, 1846) 67
14 ft 16 Vict. c. 104 (Episcopal and Capitular Estates Act, 1851). .49, 69
16 ft 17 Vict. c. 74 (Land Tax Redemption Act, 1863) 89
21 ft 22 Vict. c. 44 (Universities and College Estates Act, 1868) 51, 69, 89
23 ft 24 Vict. c. 69 (Universities and College Estates Act Extension
Act, 1860) 51, 66, 88
26 ft 26 Vict. 0. 63 (Land Registry Act, 1862) 62
31 ft 32 Vict. c. 89 (Indosure, ftc, Expenses Act, 1868) 40
33 ft 34 Vict. c. 23 (Forfeiture Act, 1870) 6
37 & 38 Vict. c. 96 (Statute Law Revision Act, 1874, No. 2) 15, 77
88 ft 39 Vict. c. 87 (Land Transfer Act, 1875) 62
39 ft 40 Vict. c. 56 (Commons Act, 1876) 73
44 ft 45 Vict. 0. 41 (Conveyancing and Law of Property Act, 1881) . . 13,
14, 67, 71, 82
52 ft 53 Vict. c. 63 (Interpretation Act, 1889) 3, 41, 80
54 ft 66 Vict. c. 39 (Stamp Act, 1891) 41
56 ft 57 Vict. c. 21 (Voluntary Conveyances Act, 1893) 69
o. 39 (Industrial ftc, Societies Act, 1893) 71
c. 53 (Trustee Act, 1893) 70, 71, 73
c. 67 (Law of Commons Amendment Act, 1893) .... 69, 73
c. 73 (Local Government Act, 1894) 73
57&58 Viot.c. 60 (Merchant Shipping Act, 1894) 73
59 ft 60 Vict. c. 14 (Short Tities Act, 1896) 67
0. 26 (Friendly Societies Act, 1896) 71
c. 28 (Finance Act, 1896) 89
60 ft 61 Vict. c. 66 (Land Transfer Act, 1897) 62
Muf^lmmt
The ** Treatise on the Law of Copyholds and Customary
** Tenures of Land,** 2nd edit., is throughout this
Supplement cited by the wt>nl— Treatise— on/y.
THE COPYHOLD ACT, 1894
(57 & 68 Vict, a 46).
An Act to consolidate the Copyhold Acts.
[25th August, 1894.
Be it enacted, &c., as follows :
Part I. — Compulsory Enfranchisement.
Bight to Enfranchise.
1. Where there is an admitted tenant of copyhold land Power to
the lord or the tenant may, subject to the provisions of this ^'^'^^S^
Act, require and compel enfranchisement of the land. ^^^^
Provided that this section shall not apply where the
tenant is admitted in respect of a mortgage and the mort-
gagee is not in possession.
This section embodies the provisioiis of sect. 1 of the Copyhold
Act, 1852, as amended by sect. 6 of the Ck)pyhold Act, 1858. The
right of the tenant to enfranchise is, however, subject to the
limitations mentioned in sect. 3 of this Act.
As to what constitutes an '* admittance," see sect. 94 of this Act,
and Ecclesiastical Commissioners for England v. Parr^ (1894)
2 a B. 420.
The expressions ** land,'* '* lord," ** tenant," and ^'enfranchise-
moDt," are explained in sect. 94, post,
—subject to tiie provisions of this Act.— As to the fines, &c., to
be paid by the tenant before he can enfranchise compulsorily, see
sect. 3 ; as to the notice of desire to enfranchise, see sect. 4 ; as
to suspending proceedings for compulsory enfranchisement, see
sect. 12 ; and as to the manors and lands which are exempt from
the provisions of this Act, see sect. 95, sub-sects, (f), (g), and (h),
and sect. 96.
A mortgagee in possession may enfranchise. See sect, 94,
** Tenant, *^(b), and sect. 39.
The subject of compulsory enfranchisement is discussed on
pp. 315 et seq. of the *' Treatise on the Law of Copyholds and
Customary Tenures of Land," second edition.
2. A lord or tenant of any land liable to any heriot, Power to
quitrent, free rent, or other manorial incident whatsoever, J^^fSj
mav require and compel the extinguishment of such rights moidents*
or mcidents affecting the land, and the release and enfran-
E. B
2 The Copyhold Act, 1894.
ohisement of the land subject thereto, in like manner as
nearly as possible as is provided by this Act with respect
to the right to compel the enfranchisement of copyhold
land and to the proceedings thereupon, and the provisionfi
of thifl Act shall apply accordingly.
This section repeats the proyisioiis of sect. 7 of the Copyhold
Act, 1887, with the exception of the words **or owner" which
occurred after the word " tenant " in the Act of 1887 ; an " owner,*'
according to the definition in that Act, including *< every person
entitled to hereditaments for any term of years originally granted
for ninety-nine years or upwards, or for some greater estate." As
the interpretation of the word " owner " in the Act of 1887 has not
been incorporated in this Act, it seems that leaseholders holding
tmder a tenn granted for ninety-nine years, or some greater estate,
have now no special right of extinguishing any manorial incidents.
As to the general rights of freeholders and lessees for years, see
sect. 94.
— heriot includes a money payment in lieu of a heriot. See sect. 94.
I^e8» &^ *o 3. A tenant shall not be entitled to require an enfran-
^^^^oii^J^ ohisement of any land under this Act xmtil after payment
ment. or tender —
(a) in case the land is copyhold and an admittance
thereto has not been made since the thirtieth day
of June one thousand eight hundred and fifty-
three, of such fine and of the value of such heriot
(if any) as v^ould become payable in the event of
admittance on alienation subsequent to that day,
and of two-thirds of such sum as the steward
would have been entitled to in respect of the
admittance; and
This sub- section embodies the provisions of sect. 1 of the Cbpy-
hold Act, 1852, as amended by sect. 6 of the Copyhold Act, 1858.
{b) in case the land is freehold (including customary free-
hold) and subject to heriots and no heriot has
become due or payable since the thirtieth day of
June one thousand eight hundred and fifty-three,
of the value of such heriot, if any, as would
become payable in the event of an admittance or
enrolment on alienation, subsequent to that day,
and of two-thirds of such sum as the steward
would have been entitled to for fees in respect of
the alienation or admittance or enrolment; and
(c) in every other case, of all fines and fees consequent
on the last admittance to the land.
Sub-section (h) embodies the provisions of sect. 6 of the Copyhold
Act, 1858, as amended by sect. 9 of the Copyhold Act, 1887.
8np2)lement to the Treatise, 3
— Ciutoiliary freehold. — These words are taken from sect. 6 of
the Copyhold Act, 1858. It would appear that they refer to free-
holds subject to custom, for ** customary freeholds," properly so
called, are of the nature of copyholds {Thompson v. Hardinge,
1 0. B. 940 ; Portland {Duke of) v. Hilly L. E. 2 Eq. 765\ thouffh
at one time they were considered to be of the nature of rreeholds.
(See Co. Copyh. s. 32 : and Bingham v. Woodgate, 1 R. & M. 32.)
Sub-section (c) in effect repeats the provision contained in sect. 1
of the Copyhold Act, 1862.
4, A lord or tenant who requires enfranohisement under Notice of
this Act must give notice in writing, the lord to the tenant ^©^ to
or the tenant to the lord, as the case may be, of his desire ®'"'*^^^^^-
to have the land enfranchised.
This section replaces the provision as to notice of desire to
enfranchise contained in sect. 8 of the Copyhold Act, 1858. Forms
of the notice applicable to the case of enfranchisement of copyhold
land and the case of extinguishment of a manorial incident will be
found on p. 477 of the Treatise.
Section 57, sub-sect. (1), of this Act provides that notices re-
quired or authorised by the Act must be given in writing, but this
enactment must be read subject to the provisions of sect. 20 of the
Interpretation Act, 1889 (52 & 53 Yict. c. 63), which defines the
meaning of the word ** writing '* in past and future Acts.
Cotnpemation for Enfranchisement.
6. — (1.) When a notice requiring an enfranchisement Prooeedings
has been given under this Act, the compensation for the ?<>' asoertain-
enfranohisement shall be ascertained in accordance with ^^™^'^^"
the provisions of this section.
^2.) The lord and the tenant may —
(a) determine the amount of the compensation hj
agreement in writing ; or
(b) agree in writing that Uie Board of Agriculture
shall determine the amount ; or
(c) appoint a valuer or valuers to determine the amount.
Provided that —
(i.) if the compensation is not otherwise determined, it
shall be ascertained under the direction of the
Board, on a valuation made by a yaluer or
valuers appointed by the lord and tenant ; but
(ii.) if the manorial rights to be compensated consist
only of heriots, rents, and licences at fixed rates
to demise or to fell timber, or of any of these,
or the land to be enfranchised is not rated for
the relief of the poor at a greater amount than
the net annual value of thirty pounds, the
valuation shall be made by a valuer to be
b2
t
The Copyhold Actj 1894.
appointed hj the justioes at petty sessioiis holden
for the division or place in which the manor or
the greater part of it is sitaate, unless either
party to the enfranchisement gives notice that
he desires the valuation to be made by a valuer
or valuers appointed by the lord and tenant, in
which case he shall pay the additional expenses
caused by that mode of valuation.
These sub-sections embody the provisions in sects. 3 and 43 of
the Copyhold Act, 1887, and sect. 8 of the Copyhold Act, 1858.
For a form of agreement between the parties settling the com-
pensation, see p. 480 of the Treatise ; for an agreement that the
compensation shall be determined by the Board of Agriculture,
see p. 478 ; and for forms of appointmentof valuers, see pp. 481, 482.
See sect. 7, sub-sect. (9), post, for the steps to be taken by the
Board when they detemune tne amount of the compensation.
(3.) When a valuer is appointed by justices, a justioe
who is a lord of the manor shall not take any part in the
appointment*
This sub-section replaces the provisions contained in sect. 8 of
the Copvhold Act, 1858, to the like effect.
For tne definition of *' lord," see sect. 94, post,
(4.) When the valuation is to be by a valuer or valuers
appointed by the lord and tenant —
(a) The lord and the tenant may each appoint one
valuer :
(6) They may appoint one and the same person :
(c) If either the lord or the tenant does not appoint a
valuer within twenty- eight days after nonce has
been given to him by the other party to do so, or
within such further time, if any, as the Board
of Agriculture by order allow, the Board shall
appoint a valuer for him :
(rf) The appointment of a valuer by either party cannot
be revoked, except with the consent of the other
party :
{e) Where there are two valuers they shall, before pro-
ceeding vfith the valuation, appoint an umpire :
{/) If they do not vrithin fourteen days after their
appointment appoint an imipire, the Board of
Agriculture shall appoint an umpire for them.
This sub- section repeats the provisions as to the appointment of
valuers and umpires contained in sect. 8 of the Copyhold Act, 1858,
as amended by sect. 10 of the Copyhold Act, 1887. The provision
in clause (e) above as to the power of the Board to extend the tune
Supplement to the Treatise. 5
for the appointment is taken from sect. 9 of the Act of 1858 ; and
the proYision in clause {d^ that the appointment cannot be revoked
replaces a like provision in sect. 3 of the Copyhold Act, 1852.
^or forms of appointment and notice, see pp. 481 — 484 of the
Treatise.
(5.) The Board of Agriculture maj, on the application
of either the lord or the tenant, remove a valuer or umpire
for misconduct or for refusal or omission to act.
This sub-section repeats the provision to the like effect contained
in sect. 3 of the Copyhold Act, 1852.
(6.) If a valuer or umpire dies, or becomes incapable, or
refuses to act, or is removed, another valuer or umpire, as
the case may be, shall, within a time to be fixed dj the
Board of Agriculture, be appointed in his place by the
person and in the manner provided by this section with
regard to the valuer or umpire in whose place he is
appointed, and in default by the Board. A valuer or
umpire appointed under this provision may adopt and act
upon any valuation or proceeding agreed on or completed
by the valuer or valuers or umpire previously acting.
The provisions in this sub-section are taken from sect. 12 of the
Copyhold Act, 1887, in which reference was made to ** valuers"
only ; but by virtue of sect. 52 of the Copyhold Act, 1852, and
sect. 49 of the Copyhold Act, 1887, the term *' valuer" at that time
included an umpire.
(7.) Before a valuer or umpire enters on his valuation
he shall, in the presence of a justice of the peace, make
and subscribe a declaration in the form mentioned in that
behalf in the first schedule to this Act.
(8.) The declaration made by a valuer or umpire must
be annexed to the valuation.
(9.) If a valuer or umpire having made a declaration
under this section wilfully acts contrary thereto he shall
be guilty of a misdemeanor.
Sub-sects. (7)— (9) replace sect. 28 of the Copyhold Act, 1852.
For the right of a valuer or umpire to call for production of
documents, and examine witnesses, see sect. 54, post; as to his
entry on the land proposed to be dealt with, see sect. 92 ; and as to
the penalty for obstructing a valuer or umpire, see sect. 93.
6. — (1.) In making a valuation for the purpose of Ciromn-
ascertaining the compensation for a compulsory enfran- ©^ider^^
chisement under this Act, the valuers shall take into valuers. ^
account and make due allowance for the facilities for
improvements, customs of the manor, fines, heriots, reliefs,
6 Thb Copyhold Act, 1894.
quit rents, chief rents, forfeitures, and all other inoidents
whatsoever of copyhold or customaiy tenure, and all other
ciroumstanoes affecting or relating to the land included in
the enfranchisement, and all advantages to arise there-
from.
Provided that thej shall not take into account or allow
for the value of escheats.
This sub-section repeats the provisions contained in sect. 16 of
the Copyhold Act, 1852, as amended by the provisions of sects. 4
and 5 of the Copyhold Act, 1887, with the exception that in sect. 4
of the Act of 1887 the escheat was expressed to be "escheat for
want of heirs.'' An escheat happens to the lord when a copyhold
tenant dies intestate and without heirs. It is doubted whetner a
copyhold might not escheat for outlawry upon an indictment for a
capital felony. The Act 54 Qeo. III. c. 145, was not considered to
apply to copyholds, and the same reasoning may apply to 33 & 34
Vict. c. 23, 68. 1 and 32.
For decisions under the former Acts as to the circumstances which
may be taken into account, see Lingwood v. Oyde^ L. B. 2 0. P.
72 ; Arden v. Wilson, L. B. 7 C. P. 535 ; Beynolda v. Woodham
Walter Manor {Lord of), L. E. 7 0. P. 639 ; Brabant v. WxUon, L. E,
1 Q. B. 44 ; and Padwick v. Tyndalt, 1 E. & £. 184.
(2.) The value of the matters to he taken into account
in the valuation shall he calculated as at the date of the
notice to enfranchise.
This provision is not contained in any of the former Acts, but it
makes no alteration, for the practice seems always to have been to
value the matters as at the date of the notices.
Dntiefl of 7. — (1.) Valuers appointed for the purpose of ascertain-
▼aluere. j^g ^^ compensation for a compulsory enfranchisement
shall determine the value of the matters to be taken into
account in the valuation at a gross sum of money.
This provision is taken from sect. 11 of the Copyhold Act, 1887.
(2.) If the valuers do not agree as to the compensation
or any point arising in the valuation, the valuers or either
of them may refer the whole matter or the point in dispute
to the umpire.
This sub-section repeats the provision contained in sub-sect, (d)
of sect 10 of the Copyhold Act, 1887.
(3.) The valuers shall ^ve their decision within foriy-
two davs after their appointment, or within such further
time, it any, as the Boaixl of Agriculture by order allow.
This sub-section embodies provisions contained in sects. 8 and 9
of the Copyhold Act, 1858.
(4.) If the valuers do not give their decision within the
time allowed by or in pursuance of this Act, and do not
Suppkment to the Treatise.
refer the matter to the tLmpire, the Board of Agrionlture
may direct the umpire to aot as valuer.
(5.) The umpire shall give his decision on anj matter
referred to him within f orfy-two days after the matter is
referred to him.
Sub-sections (4) and (5) repeat certaui of the proyisions contained
in sub-sect, (c) of sect. 10 of the Act of 1887.
(6.) The valuers or umpire shall make their decision in
such form as the Board of Agriculture direct, and shall
deliver the same with the details thereof to the Board,
and shall also deliver copies of their decisions to the lord
or to the tenant.
The proTisions in this sab-section as to the form of the decision
and its delivery, with the details thereof, to the Board are taken
from sect. 11 of the Act of 1887 ; the provision as to the delivery of
copies to the lord or tenant is a modincation of a somewhat similar
provision contained in sect. 8 of the Act of 1858. For forms of the
decision, see pp. 485 and 486 of the Treatise.
(7.) If, in the opinion of the Board, the valuation is
imperfect or erroneous, they may remit it to the valuers
or umpire, as the case may be, for reconsideration or
correction.
This prevision is taken from sect. 11 of the Act of 1887.
This power to remit is not confined to cases where the details
show that there has been an error in principle, the power being
available in any case where there appears to nave been an error.
(Regina v. TJie Land CommUsionera for England^ 23 Q. B. Div. 59.)
The valuers are not arbitrators, but assessors and assistants to the
Board. {Ibid.)
(8.) If either—
(a) the valuers do not give their decision within the
time allowed to them by or in pursuance of this
Act, and the valuation is not referred to the
umpire, either by the valuers or either of them
or by the direction of the Board ; or
{b) the umpire does not give his decision within the
time allowed to him by or in pursuance of this
Act; or
{c) the valuers or the umpire do not, when a decision
is remitted to them by the Board for re-con-
sideration or correction, amend it to the satisfac*
tion of the Board,
8
The Copyhold Act, 1894.
Gompentetion
to be a rent-
bharge in
certain cases.
the compensation shall be determined hj the Board after
due notice to the lord and tenant.
This sub-section embodies provisioiis contained in sect. 8 of the
Act of 1858, and sect. 11 of the Act of 1887.
(9.) Where the compensation is determined by the
Board they shall take such proceedings and make such
inquiries as they think necessary for the purpose, and
shall take into consideration all matters which valuers
are bound to take into consideration on a valuation under
this Act, and shall communicate the result in writing to
the lord and to the tenant, and shall fix a time within
which any objection to their determination may be signified
to them in writing by the lord or tenant, and shall con-
sider every objection properly made and if necessary alter
their determination accordingly.
These provisions are taken from sect. 43 of the Act of 1887.
For a form of determination by the Board, see p. 488 of the
Treatise.
8. — (1.) In either of the following cases, namely —
(a) Where the enfranchisement is at the instance of the
lord; or
{b) Where the land can, in the opinion of the Board of
Agriculture, be sufficiently identified, and the
compensation amounts to more than one year's
improved value of the land,
unless the parties otherwise agree, or the tenant within
ten days after the receipt by him of the draft of the pro-
posed award of enfranchisement gives to the Board notice
in writing that he desires to pay the compensation in a
gross sum, the compensation shall be an annual rentcharge,
commencing from the date of the notice to enfranchifie
and issuing out of the land enfranchised, equivalent to
interest at the rate of four per cent, per annum on the
amount of the compensation.
(2.) Except where it is provided by this section that the
compensation shall be charged by way of rentcharge, the
compensation shall be paid in a gross sum before the com-
pletion of the enfranchisement.
This section replaces the provisions of sects. 13 and 14 of the
Copyhold Act, 1887.
See sect. 26, sub-s. 3, of this Act for provisions applicable to cases
. where the title of the lord to whom ezmanchisement compensation
is paid is afterwards proved to be bad or insufiSicient.
Supplement to the Treatise, 9
9. On a compulsory enfranchisement the tenant shall Steward's
pay to the steward the compensation mentioned in the ^^"^P®'^**^*"*'
second schedule to this Act.
This section repeats the proTisions of sect. 27 of the Copyhold
Act, 1887. By virtue of the provisions of sect. 21 of the Copyhold
Act, 1858, and of sect. 23 of the Copyhold Act, 1887, the tenant
might, with the consent of the Board of Agriculture, charge the
land enfranchised with the sum paid to the steward as compensa-
tion. Sect. 36 of this Act preserves this right to the tenant,
and it would appear that the consent of the Board is no longer
necessary.
It may be noted that this Act does not repeat the provisions con-
tained in sect. 56 qf the Copyhold Act, 1841, as to the compensation
to be paid to a steward on a voluntary enfranchisement, so that on
a voluntary enfranchisement the amount to be paid to the steward
must be a matter of arrangement between the parties.
For other fees which may be claimed by a steward on, or after,
enfranchisement, see sects. 3 and 62 of this Act.
Award of Enfranchisement.
10. — (1.) "When the compensation for a compulsory Board to
enfranchisement has been ascertained under the provi- make award
sions of this Act, the Board of Agriculture, having made ^^^^^t
such inquiries as they think proper, and having considered
any applications made to them by the parties, may make
in such form as they provide an award of enfranchisement
on the basis of the compensation, and may confirm the
award.
In sub-sects. (1), (3), (4) and (5) of this section, the provisions as
to awards in the case of compulsory enfranchisements, which were
contained in sects. 10 and 12 of the Copyhold Act, 1858, as amended
by sect. 22 of the Copyhold Act, 1887, are re-enacted without
material alteration. See p. 397 of the Treatise.
—such inquiries as they think proper. A print of the inquiries,
which the Board require to be answered in everv case of enfran-
chisement, will be found on pp. 478 — 480 of the treatise.
(2.) The award shall state whether the compensation is
a gross sum or a rentcharge, and the amount thereof, and
where it is a rentcharge shall make the land subject thereto
and chargeable therewith.
The provision in this sub-section appears- to be new, but it does
not alter the practice.
(3.) The Board shall fourteen days before confirming
the award send to the tenant and to the steward, unless
the proposed award has been already penused by theQ^
respeotiyely, a copy of the proposed award.
10 The Copyhold Act, 1894.
(4.) Where the oompensation is a gross sum the award
shall not be oonfirmed until the receipt of the person
entitled to reoeive the compensation has oeen produced to
the Board.
J 5.) The Board shall send a copy of the confirmed award
led or stamped with the seal of the Board to the lord,
and the lord shall cause the copy to be entered in the court
rolls of the manor.
(6.) The date at which a compulsory enfranchisement
shall take efFect may be fixed by the confirmation of the
award of enfranchisement, and if not so fixed, shall be the
date of the confirmation of the award.
This sub-section repeats the provisions to the like effeot contained
in sect. 18 of the Copyhold Act, 1858, and removes the doubt which
was raised by the provisions contained in sects. 14 and 31 of the
Copyhold Act, 1887. See the Treatise, p. 398.
Bestrictiona on Enfranchisement.
Power for XL — (1.) Where a notice requiring the enfranchisement
i^TS^ of any land under this Act is given by the tenant, and the
chase tenant's lord shows to the Satisfaction of the Board of Agricultiue
interest. that any change in the condition of the land which but for
the enfranchisement would or might be prevented by the
incidents or conditions of the tenure of the land, will pre-
I'udicially affect the enjoyment or value of the mansion
LOuse, park, gardens, or pleasure grounds of the lord, the
lord may give to the tenant notice in writing that he offers
to purchase the tenant's interest in the land.
(2.) If the tenant accepts the offer he shall do so by
sending to the Board, within twenty-eight days after he
has received notice of the offer, notice in writing of his
acceptance, and thereupon the offer and the acceptance
shall be binding on the lord and the tenant.
(3.) If the tenant does not accept the offer the enfran-
chisement shall not take place unless the Board think fit
to impose such terms and conditions as are in their opinion
sufficient to protect the interests of the lord.
(4.) Where a purchase is being made under this section,
if the consideration for the purchase is not within a time
allowed by the Board settled by agreement between the
lord ^ and the tenant, the Board may appoint a valuer to
ascertain the value of the tenant's interest, or may refer it
to the valuers, if any, acting in the enfranchisement.
(6.) When the value of the tenant's interest has been
Suppkfnent to the Treatise, 11
agreed on or ascertained, the Board shall issue, under their
seal, a certificate which shall define the land included in
the purchase, and shall state the consideration for the
purchase, and fix a time for the payment of the con-
sideration.
(6.) On the payment of the consideration the tenant
shall execute a conveyance of his interest in the land to
the lord in such form as the Board direct, and on the
execution of the conveyance the land shall vest in the lord
accordingly.
(7.) If the consideration is not paid within the time
fixed by the certificate or such further time as the Board
allow, and the Board are of opinion that the nonpayment
arises from the default of the lord, they may cancel the
certificate, and thereupon the enfranchisement shall be
proceeded with (but subject to the provisions of this
section as to expenses) as if this section had not been
passed.
(8.) Where a purchase is made under this section all the
costs of the valuation and all the expenses attending the
purchase, including the expenses of the conveyance, shall
be paid by the lord.
(9.) Where a purchase is, by the default of the lord, not
completed, all expenses which the Board certify to have
been incurred by the tenant in consequence of the offer,
acceptance, and default shall be paid by the lord to the
tenant.
This section repeats the provisions contained in sect. 25 of the
Copyhold Act, 1852.
See sect. 36, sub-s. 3, of this Act, as to the power of the lord to
charge the land purchased, and the manor and any land settled
therewith to the same \ises, with the purchase-money and the
expenses of the purchase.
12. — (1.) The Board of Agriculture may suspend any Power for
proceedings for a compulsory enfranchisement under this "^^^J^
Act where any peculiar circumstances make it impossible, f^^^^isement
in their opinion, to decide on the prospective value of the in certain
land proposed to be enfranchised, or where any special ^'**^*
hardship or injustice would unavoidably result from com-
pulsory enfranchisement.
The two sub-sections of this section repeat the provisions of
sect. 35 of the Copyhold Act, 1852.
In Reynolds v. The Lord of the Manor of Woodham Walter^ L. E. .
7 C. P. 639, it was held hj the Court of Common Pleas that the
determination of the question whether, in any particular case, there
12 The Copyhold Act, 1894.
is or is not any special hardship, is in itself the determination of
an inferential fact to be decided by the Board, and that the Ootirt
cannot review the decision of the Board.
(2.) Where the Board suspend a proposed enfrandiise-
ment under this section thej shall state their reasons for
doing so in their annual report which is bj this Act
directed to be laid before Parliament.
See sect. 90, poet, as to the reports to be made by the Board
and laid before both Houses of Parliament.
Board to' 13, On a compulsory enfranchisement under this Act,
tinue oon^' i^ ^^7 oa*® where the tenant was admitted subject to any
tions to naer. condition affecting the user of the land and imposed for the
benefit of the public or of the other tenants of the manor,
and in the opimon of the Board of Agriculture some special
hardship or injustice would result if the land were released
from the condition, the Board may continue and give
effect to the condition by the award of enfranchisement.
This section repeats the provisions to the like effect contained
in sect. 8 of the Copyhold Act, 1887, which appear to have been
enacted in consequence of the decision in Brabant y. WiUofif L. B.
1 Q. B. 44. See the Treatise, pp. 393, 394.
Part II. — ^Voluntary Enfranchiseb£ent.
^ecT ^i ^*' — ^^'^ ^^^ ^^^ ^^ ^^^ manor may with the consent
tary enfr^- ^^ ^h® Boaid of Agriculture enfranchise any land held of
chiflemeat. the manor, and any tenant may with the consent of the
Board accept an enfranchisement of his land.
(2.) The enfranchisement may be on such tenns as
subject to the provisions of this Act are settled by agree-
ment between the lord and the tenant.
(3.) If the estate of the lord or of the tenant parties to
the enfranchisement is less than an estate in fee simple in
possession or corresponding copyhold or customary estate,
and the tenant has not paid the whole of the cost of
enfranchisement, the lord or tenant respectiyely shall give
notice in writing of the proposed enfranchisement to the
person entitled to the next estate of inheritance in re-
mainder or reversion in the manor or land to be affected
by the enfranchisement.
This section re-enacts the provisions contained in sect. 56 of the
Copyhold Act, 1841, as amended by the provision contained in
sect. 13 of the Copyhold Act, 1843, which permitted the notice to
the person next entitled in remainder or reversion to be dispensed
with where the enfranchising tenant paid the whole of the com*
pensation due, and the costs. See the Treatise, pp. 365, 366,
Supplement to the Treatise. l^T
See sect. 45 of this Act for proyisions dealing with the case of the
peijson entitled to the notice being under legal disability, or being
abroad.
A form of the notice will be found on p. 492 of the Treatise.
Definitionsof the terms ** lord/' ** manor," ''land," and ''tenant,"
will be found in sect. 94, post,
16, — (1.) The consideration for a voluntary enfranohise- Oonridera-
ment under this Act may he either — ^ eaa^x^'
(a) a gross sum payable at once or at any time fixed by dhiflement.
the agreement ; or
(b) a rentchco^ge charged on and issuing out of the land
enfranchised; or
(c) a conveyance of land or of a right to mines or
minerals; or
(cQ a conveyance of a right to waste in lands belonging
to the manor,
or may be provided partly in one and partly in another or
others of those ways.
(2.) Land or a right to mines or minerals, subject to
the same or corresponding uses and trusts with the land
enfranchised may be conveyed as consideration under this
section.
(3.) Where the estate of the lord is less than an estate
in fee simple in possession, and land not parcel of the
manor, or a right to mines or minerals, not in or under
the land enfranchised, is conveyed as consideration under
this section, the land or right must be convenient in
the opinion of the Board of Agriculture to be held with
the manor, and must be settled to uses or on trusts
identical with or corresponding to those to or on which
the manor is held.
This section re-enacts the proyisions to the Hke efiPect contained
in sect. 56 of the Copyhold Act, 1841, sect. 1 of the Copyhold Act,
1843, and sect. 5 of the Copyhold Act, 1844. See the Treatise,
p. 369.
See sect. 17, poatf for proyisions dealing with the case where the
enfranchisement consideration is a rent-charge.
Sect* 9 of the Copyhold Act, 1843, provided, that where the con-
sideration for the enfranchisement consisted of land which was
subject to any lease, the person to whom the land was conveyed
was to be deemed as placed in the position of reversioner on the
lease, and might distrain for the rent, and enforce the covenants.
That provision has not been repeated in this Act : but it seems to
be clear that the land would be conveyed subiect to the lease, and
that the lord would, as an assign of the* lessor, \}e entitled to enforce
payment of the rent, and periormance of the covenants contained
m the lease having reference to tiie land, and on the lessee's part to
14 The Copyhold Act, 1894.
be observed or performed, under sect. 10 of the Conveyancing, &c.
Act, 1881.
Voluntary 16, — (1.) A voluntary enfranohisement under this Act
me^to^'by ^^^ ^® effected with the consent of the Board of Agri-
deed. culture by such a deed as would be proper on an enfran-
chisement by a lord seised of the manor for an absolute
estate in fee simple in possession.
This sub-section re-enacts the corresponding provisions contained
in sect. 57 of the Copyhold Act, 1841, as varied by sect. 2 of the
Copyhold Act, 1858.
(2.) Where any person is entitled to notice of the pro-
posed enfranohisement, the assent or dissent or acquiescence
of that person in respect of the enfranohisemeat may be
stated in writing to the Board of Agriculture when the
enfranchisement deed is sent to them for confirmation. If
any dissent in writing has been expressed, the Board shall
withhold their consent to the deed until they have made
further inquiries, and are satisfied that the agreement is
not fairly open to objection.
(3.) The Board may in every case cause any such further
notices to be given and inquiries to be made as they think
proper, before consenting to the enfranchisement deed.
Sub-sections (2) and (3) re-enact provisions to the like effect
contained in sect. 56 of me Copyhold Act, 1641.
ProviBione for 17, Where any part of the consideration for a voluntary
w^^A^^ enfranohisement under this Act is a rent-charge —
^ ' (1.) The rent-charge may be —
(a) a fixed annual sum, or
{b) where it exceeds the sum of twenty shillings, an
annual sum varying with the price of com and
calculated upon the same averages and variable
in like manner as a tithe commutation rent-
charge: and
(2.) The rent-charge may be made subject to an increase
or diminution to be stated in the enfranchisement agree-
ment, or afterwards fixed by valuers, in any event which is
provided for in the agreement : and
(3.) The tenant may ^rant the rent-charge by deed to
the lord and his heirs to tne uses on the trusts and subject
to the powers and provisions subsisting at the date of the
enfranchisement witib respect to the manor of which the
land enfranchised is held : and
(4.) The rent-charge may be charged on all or any part
of the land enfranchued.
This section re-enacts the provisions as to rent-charges contained
Supplement to the Treatise. 15
in sect. 52 of the Copyhold Act, 1841, and sects. 1 and 2 of tl^e
Copyhold Act, 1843, as amended by sect. 41 of the Copyhold Act;
1852 (which enacted that it should not thereafter be necessary to
make any enfranchisement rent-charge variable wit& the prices of
grain), and as further amended by sect. 11 of the Copyhold Act, '
1858, which directed that if a rent-charge were thereafter granted,
to be variable with the price of com, it should be calculated upon
the same averages and variable in the same manner as a tithe com-
mutation rent-charge.
18. Where any part of the consideration for an enfran- FrovisionB
ohiBement under this Act is the conveyance of land or of '^bere iwid is
a right to mines or minerals, or of a right to waste, the TOnsiXration
tenant may convey the land or right to the lord and his under this
heirs to the uses on the trusts and subject to the powers ^"^•
and provisions subsisting at the date of the enfranchise-
ment in respect of the manor of which the land enfran-
chised is held.
This section repeats the provisions to the like efiPect contained in
sect. 3 of the Copvhold Act, 1843. The provisions contained in
sect. 5 of the Copyhold Act, 1844, to the effect that the land, or the
right to mines or minerals, to be conveyed as the enfranchijBement
consideration should be such as in the opinion of the Board could
be conveniently held with the manor, are re-enacted as to certain
cases by sect. 15, sub-s. (3), of this Act. See the Treatise, p. 369.
19. — (1.) Where a volimtary enfranchisement is effected Enfrenohise-
under this Act, the land enfranchised shall be charged "??^*??^'x
with every sum payable to the lord in respect of the beacharg€^
enfranchisement, with interest thereon from the day fixed on land tiu
by the enfranchisement deed for payment thereof until P*^-
payment thereof.
(2.) The lord shaU be deemed to be seised of the land
subject to a charge omder this section as mortgagee in fee,
and may distrain on the land for any interest due in
respect of the charge as if it were rent in arrear.
(3.) A charee under this section shall be a first charge
on the land subject thereto, and shall have priority over
all incumbrances whatsoever affecting the land (except
tithe rent-charge and any charge having priority by statute),
notwithstanding that those incumbrances are prior in date.
This section re- enacts the provisions contained in sects. 70 and 71
of the Copyhold Act, 1841, which were expressly repealed by the
Statute Law Revision Act, 1874 (No. 2). The necessity for tilie re-
enactment of these provisions is not apparent, for the deed by which
a voluntary enfranchisement is effected operates only when the
Board have confirmed it (see sect. 20, poei)^ and it is understood
that in practice the Board never confirmed a deed until it appeared
that the consideration had been paid, and thus the lord was pro-
e
16
The Copyhold Act, 1894.
Gommenoe-
ment of
enfranbhiise-
ment.
tected, and there was no neoeesity for giving him a charge over the'
enfranchised land.
—any charge having priority by statute.— These words did not
occur in sect. 71 of the Copyhold Act, 1841. By sect. 33 of tiie
Copjrhold Act, 1858, land-drainage charges or rent-charges created
by virtue of the Lands Drainage Acts were declared to have priority
over rent-charges under the Copyhold Acts. It seems clear that
these words "any charge having priority by statute" would
only apply to land-drainage charges or rent-charges when such
charges or rent-charges were declared to have priority in the Acts
under which they were created.
20. The date at whioh a yolantary enfrancliiseinent
under this Act shall take efFect, and the oommencement of
a rent-charge in consideration of a volantaxy enfranchise-
ment under this Act, may be fixed by the memorandum
of confirmation of the enfranchisement deed, and if not
so fixed shall be the date of the confirmation of the deed
by the Board of Agriculture.
This section repeats the provisions to the like effect contained ra
sect. 18 of the Copyhold Act, 1858.
On enfraa*
ohisement
land to
become
freehold.
Paet m. — Effect of Enfranchisement.
2L — (1.) When an enfranchisement is made under this
Act the following provisions shall, from and after the time
when the enfranchisement takes efFect, apply with respect
to the land enfranchised : —
(a) The land shall be of freehold tenure ;
(b) The lord shall be entitled, in case of an escheat for
want of heirs, to the same right as he would havo
had if the land had not been enfranchised ;
(c) The land shall not be subject to the custom of
borough English, or of gavelkind, or to any
other customary mode of descent, or to any
custom relating to dower or freebench or tenancy
by the curtesy, or to any other custom whatso-
ever, but shall be subject to the same laws relat-
ing to descents, and dower, and curtesy as are
applicable to land held in free and common
socage :
The foregoing clauses (a) and (c) of this sub-section embody pro-
visions to the like effect contained in sect. 81 of the Copyhold Act,
1841, and sect. 34 of the Copyhold Act, 1852, respectively, clause (h)
repeating the provisions of sect. 4 of the Act of 1887. See toe
Treatise, p. 414.
Supplement to the Treatise. 17
Provided as follows : —
(i.) Nothing in this section shall affect the custom of
gavelkind in the county of Kent ;
(ii.) Nothing in this section contained with respect to
dower, freebench, or curtesy shall apply to any
person married before the date at which the
enfranchisement takes effect.
This proviso is taken from sects. 79 and 80 of the Copyhold Act,
1841, and sect. 34 of the Copyhold Act, 1852.
{(T) The land shall be held under the same title as that
under which it was held at the date at which the
enfranchisement takes effect, and shall not be
subject to any estate, right, charge, or interest
affecting the manor ;
This sub-section repeats the proyisions contained in sect. 64 of
the Copyhold Act, 1841.
{e) Every mortgage of the copyhold estate in the land
shall become a mortgage of the freehold for a
corresponding estate, but subject to any charge
having priority thereof by virtue of this Act.
This sub-section is taken from sect. 81 of the Copyhold Act,
1841.
(^.) An enfranchisement shall not, except as in this Act
mentioned, affect the rights or interests of any person
in the land enfranchised under a wdll, settlement, mort-
gage, or otherwise, but those rights and interests shall
continue to attach upon the land enfranchised in the same
way as nearly as may be as if the freehold had been com-
prised in the instrument or disposition under which that
person claims.
This sub-section repeats the provisions to the like effect contained
in sect. 81 of the Copyhold Act, 1841, and sect. 46 of the Copyhold
Act, 1852.
(3.) Where land is, at the date at which the enfran-
chisement thereof under this Act takes effect, subject to
any subsisting lease or demise, the freehold into which the
copyhold estate is converted shall be the reversion imme-
diately expectant on the lease or demise, and the rents and
services reserved and made payable on, and the conditions
in, or in respect of, the lease or demise, shall be incident
and annexed to the reversion, and the covenants or agree-
ments, expressed or implied, on the part of the lessor and *
lessee respectively shall run with the land and with the
E. c
18
The Copyhold Act, 1894.
Bzodptioii for
tights of
oonunon*
Exoeption for
mines and
other rights.
reversion respectively, and the enfranchisement shall not
affect any right of distress, entry, or action accruing in
respect of the lease or demise.
This sub-section embodies the provisions which were contained
in sect. 10 of the Copyhold Act, 1843, and sect. 44 of the Copyhold
Act, 1852, as extended by sect. 41 of the Copyhold Act, 1887. See
the Treatise, p. 415.
22. An enfranchisement under this Act shall not
deprive a tenant of any commonable right to which he
is entitled in respect of the land enfranchised, hut where
any such right exists in respect of any land at the date of
the enfranchisement thereof it shall continue attached to
the land notwithstanding the land has become freehold.
This section repeats the provisions as to commonable rights con-
tained in sect. 81 of the Copyhold Act, 1841, and sect. 45 of the
Copyhold Act, 1852. As to the effect of a custom in a manor for
tiie lord to make grants of portions of the waste to be held by
copyhold tenure, where there has been a statutory reservation of
rights of common on the enfranchisements of copyholds, see
Eamsey v. CruddaSy (1893) 1 Q. B. 228. As to the effect of enfran-
chisement at Common Law, see the Treatise, pp. 248, 264.
23. — (1.) An enfranchisement imder this Act shall not
without the express consent in writing of the lord or
tenant respectively affect the estate or right of the lord
or tenant in or to any mines, minerals, limestone, lime,
clay, stone, gravel, pits, or quarries whether in or under
the land enfranchised or not, or any right of entry, right
of way and search, or other easement of the lord or tenant
in, on, through, over, or under any land, or any powers
which in respect of property in the soil might hut for the
enfranchisement have heen exercised for the purpose of
enabling the lord or tenant, their or his agents, workmen,
or assigns, more effectually to search for, win, arid work
any mines, minerals, pits, or quarries, or to remove and
carry away any minerals, limestone, lime, stones, clay,
gravel, or other substances had or gotten therefrom, or
the rights, franchises, royalties, or privileges of the lord in
respect of any fairs, markets, rights of chase or warren,
piscaries, or other rights of hunting, shooting, fishing,
fowling, or otherwise taking game, fish, or fowl {a).
Provided that the owner of the land so enfranchised
shall, notwithstanding any reservation of mines or mine-
rals in this Act or in the instrument of enfranchisement,
hut without prejudice to the rights to any mines or
minerals, have full power to disturb or remove the soil
Supplement to the Treatise. 19
BO far as is necessary or oonvenient for the purpose of
making roads or drains or erecting buildings or obtaining
water on the land (J).
(a) This portion of the sub-sectioii repeats the similar proyisioiis
of sect. 48 of the Copyhold Act, 1852. See Ktrr v. Fawson, 26
Beav. 394 ; and PreUy v. Solly y 26 Beav. 606.
(b) The proviso re-enacts the provisions of sect. 14 of the Copy-
hold Act, 1858.
(2.) A steward shall not, without special authority,
have power to consent on behalf of a lord under this
section.
This sub-section repeats the provisions to the like effect con-
tained in sect. 33 of tiie Copyhold Act, 1887.
As to the right of the steward generally to represent the lord in
enfranchisement proceedings, see sect. 47 of this Act : and as to
his power to hold customary courts, to make grants of copyhold
out of the manor and out of court, and to admit to copyholds, see
sects. 82, 83, and 84 of this Act respectively. A stewud cannot,
however, grant licence to a copyhold tenant to alienate his ancient
tenement unless he is authorised in writing by the lord to do so : see
sect. 86, post,
24, — (1.) On an enfranchisement under this Act there Power for
maybe reserved or granted, with the consent of the tenant, J^5|^*eJ|^.
to the lord any right of way or other easement in the land meats to lord,
enfiunchised for more effectually winning and carrying
away any mines or minerals under the land.
(2.) The easement must be reserved by ihe award or
granted in the deed of enfranchisement.
This section repeats the provisions of sect. 84 of the Copyhold
Act, 1841.
PAET IV. — ^Provisions as to Consideration Money,
Expenses, Eentcharges.
Consideration Money,
9
25. The receipt of anv person for^any money paid to Power to g^ve
him in pursuance of this Act shall be a sufficient discharge i^eoelpts.
for the money, and the person paying it shall not be
bound to see to the application or be uable for the mis-
application or loss thereof.
This section embodies provisions to the like effect contained in
sect. 78 of the Copyhold Act, 1841, and sect. 25 of the Copyhold
Act, 1887.
For a form of receipt for compensation money, see the Treatise,
p. 489.
C2
20 The Copyhold Act, 1894.
^J^^^*^ 26. — (1.) Money payable under this Act as the oom-
ment money. P^nsation or consideration for an enfranchisement maj,
subject to the other provisions of this Act, be paid to the
lord for the time being.
Provided that where any jaoney is payable in pursuance
of this section to a lord having only a limited estate or
interest in the manor, the Board of ^Agriculture —
(a) if the money exceeds the sum of twenty pounds for
all the enfranchisements in the manor, shall
direct it to be paid into Court or to trustees ia
manner provided by this Act ; and
(5) if the money does not exceed the sum of twenty
pounds for all the enfranchisements in the
manor, may direct it either to be paid in
manner aforesaid, or to be retained by the lord
for his own use, as in their discretion they think
fit.
This sub-section embodies the provisions to the like effect con-
tained in sects. 69, 73, 74, and 75 of the Copyhold Act, 1841, and
sects. 39 and 40 of the Copyhold Act, 18d2.
Sect. 32, post, deals with the payment of money into Court or to
trustees.
(2.) If a lord refuses to accept any money payable to
him under this section the money shall be paid into Court
or to trustees in manner provided by this Act.
This sub-section repeats the provisions of sect. 13 of the Copy-
hold Act, 1858.
(3.) If any money in respect of the compensation or
consideration for an enfranchisement is paid to a lord
whose title afterwards proves to be bad or insufficient, the
rightful owner of the manor or his representative may
recover the amount from the person to whom it was paid,
or his representative, with interest at the rate of five
pounds per cent, per annum from the time of the title
proving to be bad or insufficient.
This sub-section re-enacts the provisions of sect. 47 of the Copy-
hold Act, 1852.
(4.) If any principal money is paid for enfranchise-
ment to a person who is not entitled to receive it under
the provisions of this Act, the land enfranchised shall con-
tinue to be charged with the payment of the money in
favour of the person entitled :
Provided that the person entitled to the land may
Supplement to the Treatise. 21
recover the money as against the person who wrongfully
received it.
This sub-section repeats the provision of sect. 76 of the Copyhold
Act, 1841.
(5.) If any dispute arises as to the proper application,
appropriation, or investment under this Act of any money
payable in respect of an enfranchisement, the Board of
Agriculture may decide the question, and their decision
shall be final.
This sub-section repeats the provisions to the like effect contained
in sect. 75 of the Copyhold Act, 1841.
Bentcharges.
27. The following provisions shall apply to every rent- Payment of
charge created under the provisions of this Act : — '^^^^a^
(a) The rentcharge shall be payable half-yearly on the '"^ ^ ^ '
first day of January and the first d!ay of July in
every year :
(b) The first payment of a rentcharge shall be made on
such one of those half-yearly days of payment
as next follows the day fixed for the commence-
ment of the rentcharge, or if no such day is
fixed, the date of the award or deed of en£ran-
chisement, and shall be of an amount* propor-
tional to the interval between the commencement
of the rentcharge and the said day of payment :
(c) The rentcharge shall be a first charge on the land
charged therewith, and shall have priority over
all incumbrances affecting the land except tithe
rentcharge and any chare^e having priority by
statute, notwithstanding those incumbrances are
prior in date :
(d) The rentcharge shall be deemed to be granted to
the lord and his heirs, to the uses, on the trusts,
and subject to the powers and provisions subsist-
ing, at the date of the enfranchisement in con-
sideration of which the rentcharge arises, in
respect of the manor of which the land subject
to the rentcharge was held, and shall be appen-
dant and appurtenant to the manor, but not so
as to be incapable of being severed therefrom or
to be affected by the extinction thereof :
{e) The rentcharge whenever created shall be recover-
23
The Copyhold Act, 1894.
Apportion-
ment of
rentoharg^e.
able by the like remedies as are provided by
section forty-four of the Conveyancing and Law
of Property Act, 1881, in respect of rentcharges
created after the commencement of that Act.
Provided that an occupying tenant, who properly pays
on account of a rentcharge any money whicn as between
him and his landlord that tenant is not liable to pay, shall
be entitled to recover from the landlord the money paid,
or to deduct it from the next rent payable by the tenant ;
and an intermediate landlord who pays or allows any sum
imder this provision may in like manner recover it from
his superior landlord, or deduct it from his rent.
Sub-sections (a) and {h) repeat the provisions contained in sect. 15
of the Copyhold Act, 1887. See the Ohreatise, p. 399.
Sub-section (c) embodies provisions to the like effect contained
in sect. 7 of the Copyhold Act, 1843, sect. 33 of tiie Copyhold Act,
1858, and sect. 19 of the Copyhold Act, 1887, but the words '* any
charge having priority by statute" did not occur in any of the
earlier Acts. K was provided by the Act of 1858 that a rent-
charge under the Copyhold Acts was to take priority over all pre-
vious incumbrances, excepting tithe rentchar^s and any land-
drainage charges or rentcharges created by virtue of the Land-
Drainage Acts.
Sub-section {d) re-enacts the provisions contained in sect. 2 of the
Copyhold Act, 1843, and sect. 31 of the Copyhold Act of 1858.
Sub-section (e) repeats the provisions to tne like effect contained
in sect. 16 of the Act of 1887. As to the remedies of the owner of a
rentcharge, see Searle v. Cooke, 43 Ch. Div. 519; and Thomas v.
SylveattTy L. R. 8 Q. B. 368.
The proviso re-enacts, with an addition as to intermediate land-
lords, the provisions to the like effect which were contained in
sect. 16 of the Copyhold Act, 1887.
28. The persons for the time being entitled to a rent-
charge under this Act, and to the land subject to the rent-
charge respectively, whether in possession or in remainder
or reversion expectant on an estate for a term of years,
may apportion the rentcharge between the several parts
of the land charged therewith.
Provided as follows : —
(a) Where the person entitled to the land is not abso-
lutely entitled thereto, the apportionment shall
not be made without the consent of the Board of
Agriculture; and
{b) A person entitled to an undivided share in a rent-
charge or land shall not exercise the powers of
this section unless the persons entitled to the
Supplement to the Treatise. 23
other nndiyided shores oononr in the apportion-
ment.
This section incorporates the proyisions as to apportionment of
rentchar8;es which were contained in sects. 4, 6, and 6 of the
Copyhold Act, 1843.
29. A sub-lessee under a sublease shall not, as between Protection of
him and his lessor, be liable in consequence of the creation i^S^f^
or apportionment of a rentoharffe under this Act to pay rentdSge.
any greater sum of money than he would have been liable
to pay if the charge or apportionment had not been made.
This section repeats the proyisions of sect. 8 of the Copyhold Act,
1843.
30, — (1.) A rentcharge created under this Act may be Eedemption
redeemed on any half-yearly day of payment by the person ®^ rentcharge.
for the time being in actual possession or in receipt of the
rents and profits of the land subject to the rentcharge, on
payment to the person for the time being entitled to re-
ceive the rentcharge of the consideration provided by this
section.
Provided that where the person entitled to the rent-
charge is entitled for a limited estate or interest only, the
Board of Agriculture,
(a) if the money exceeds the sum of twenty pounds for
all the rentcharges under this Act in the manor,
shall direct it to be paid into Court or to trustees
in manner provided by this Act ; and
(b) in any other case, may direct it either to be paid in
manner aforesaid or to be retained by that person
for his own use.
The provision in this sub-section as to the right of redemption
was taken &om sect. 17 of the Copyhold Act, 1887. The proviso
as to the payment of the redemption-money where the person
entitled had a limited estate or interest only, repeats the proyisions
to the like effect contained in sects. 39 and 40 of the Copyhold Act,
1852.
(2) The consideration for the redemption of a rent-
charge under this section shall, —
{a) where the rentcharge is of fixed amount, be twenty-
five times the yearly amount of the rentcharge ;
and
(b) in any other case, be a sum to be fixed by the Board
of Agriculture on the request of the person
entitled to redeem the rentdiarge.
This sub-section incorporates the corresponding proyisions con-
24 The Copyhold Act, 189.4.
tained in sect. 17 of the Copyhold Act, 1887, and sect. 37 of the
Copyhold Act, 1852. See the Treatise, p. 401.
(3.) The person intending to redeem shall give to the
person for the time being entitled to receive the rent-
charge six months' previous notice in writing of his
intention.
This provision was contained in sect. 17 of the Copyhold Act,
1887.
(4.) If on the expiration of the notice the redemption
money and all arrears of the rentcharge are not paid, the
person for the time being entitled to receive tne rent-
charge shall have for the recovery of the redemption
money and all arrears, if any, of the rentcharge the like
powers in respect of the land charged as are given by the
Conveyancing and Law of Property Act, 1881, to a mort-
gagee in respect of the mortgaged property for the recovery
of the mort&^e debt and interest in a case where the
mortgage is by deed.
This provision was contained in sect. 18 of the Copyhold Act,
1887. See the Treatise, p. 401.
(5.) "When it appears to the Board of Amcnltnre that
payment or tender of the consideration for the redemption
of the renteharge has been duly made, the Board may
certify that the rentcharge has been redeemed and the
certificate shall be conclusive.
A provision to this effect was contained in sect. 37 of the Copy-
hold Act, 1852.
(6.) The expenses incurred in redeeming a renteharge
under this section shall be dealt with on the same footing
as the expenses incurred in redeeming a mortgage.
This sub-section repeats the provisions of sect. 20 of the Copy-
hold Act, 1887.
Power to sell 31. — (1.) Where the person for the time being entitled
rentcharge. ^q ^]^q receipt of a renteharge under this Act is entitled
thereto for a limited estate or interest only, or is a corpo-
ration not authorised to sell the rentcharge except under
the provisions of this Act, that person may sell and transfer
the renteharge with the consent of the Board of Agriculture
given under their seal.
(2.) When a rentcharge is sold under this section the
consideration money for the sale shall be paid into Court
or to trustees in manner directed by this Act.
Provided that when the consideration does not exoeed
Supplement to the Treatise. 25
the sum of twenty pounds for all the rentcharges under
this Act in the manor the consideration may be paid, if
the Board of Agriculture so direct, to the person for the
time being entitled to receive the rentcharge for his own
use.
These two sub-sections repeat theprovisions contained in sect. 36
of the Copyhold Act, 1852. See the treatise, p. 402, and see sect. 32,
post, for the provisions as to payment into Court or to trustees. The
proviso re-enacts the provisions of sect. 40 of the Act of 1852.
Application of Monet/ to be paid under Act into Court or to
Trustees,
32. — (1.) Where money is directed by or in pursuance Payment of
of this Act to be paid into Court it shall be paid into the g^^^^^*^
High Court in manner provided by rules of Court to an trustees,
accoimt ex parte the Board of Agriculture.
This provision was taken from sect. 73 of the Copyhold Act,
1841, and sect. 39 of the Copyhold Act, 1852. See the Supreme
Court Funds Eules, 1894, r. 40; and see the Treatise, pp. 403,
404.
(2.) Where money is directed by this Act to be paid to
trustees it shall be paid —
{a) if there are any trustees acting under a settlement
under which the lord or owner of the manor or
rentcharge in respect of which the money arises
derives his estate or interest in the manor or
rentcharge, then to those trustees or to such one
or more of them as the Board of Agriculture
direct ; and
(6) in any other case to trustees appointed by the Board
of Agriculture.
Similar provisions were contained in sect. 14 of the Copyhold
Act, 1843, and sect. 39 of the Copyhold Act, 1852. See the
Treatise, p. 488, for a form of Appointment of Trustees by the
Board of Agriculture ; and see sub-sect. (4) hereof, posty as to the
powers of the Board to appoint trustees.
(3.) Where money may under the provisions of this
Act be paid either into Court or to trustees, it may be
paid either into Court or to trustees at the option (where
the money arises in respect of an enfranchisement) of the
lord for the time being, and (where it arises in respect of
a rentcharge) of the owner for the time being of the rent-
charge.
Similar provisions as to the option of the person entitled to the
26
The Copyhold Act, 1894.
Invesbnent of
money in
Court or in
hands of
tnuftees.
money vere contained in sect. 74 of the Copyhold Act, 1841.
sect. 14 of the Copyhold Act, 1843, and sect. 39 of the Copyhold
Act, 1862.
(4.) — {a) The Board of Agiiculture may appoint fit
persons to be trustees for the purposes of IhiB
Act.
(5) Where any trustee appointed by the Board of
Agriculture dies the !Board shall appoint a new
trustee in his place.
(c) Where any trustee appointed by the Board desiree
to resign, or remains out of tifie United Kingdom
for more than twelve months, or refuses or is
unfit to act, or is incapable of acting the Board
may if they think fit appoint another trustee in
his place.
(d) An appointment under this section must be by
order under the seal of the Board of Agricul-
ture.
This sub-section incoiporates provisions to the like effect con-
tained in sect. 14 of the Copyhola Act, 1843 ; sect. 6 of the Copy-
hold Act, 1844; and sect. 39 of the Copyhold Act, 1852.
33. — (1.) Where in pursuance of this Act any money
in respect of an enfranchisement or the redemption or sale
of a rentcharge is paid into Court or to trustees the money
shall when paid into Court be applied under the direction
of the Court, and when paid to trustees be applied, subject
to the consent of the Board of Agriculture, by the trustees,
in one, or partly in one and partly in another or others, of
the following modes of application or investment; that
is to say,
{a) in the purchase or redemption of the land tax or in
or towards the discharge of any incumbrance
affecting the manor or the rentcharge or other
hereditaments settled with the manor or rent-
charge to the same or the like uses or trusts ; or
{b) in the purchase of land ; or
(c) in investment in two and three quarters per centum
consolidated stock or in G-ovemment or real secu-
rities, or in any of the investments in which
trustees are for the time being authorised by law
to invest ; or
(d) in payment to any person who would, if the enfran-
chisement or redemption or sale had not taken
Supplement to the Treatise. 27
place, be al)8olutel7 entitled to the manor or the
rentcharge respectively.
(2.) Land purchased under this section shall be con-
veyed to the uses, on the trusts, and subject to the powers
and provisions which are or would but for the enfranchise-
ment or redemption or sale be subsisting in the manor or
rentcharge, as the case may be, or as near thereto as
circumstances permit.
(3.) The income of an investment under tifiis section
shail be paid to the person who is or would but for the
enfranchisement be entitled to the rents and profits of the
manor, or would but for the redemption or sale be entitled
to the rentcharge, as the case may be.
(4.) An investoient or other application of money in
Court under this section shall be made on the application
of the person who would for the time being be entitled to
the income of an investment of the money.
This section incorporates provisioiis to the like effect oontaiiied
in sect. 73 of the Copyhold Act, 1841, and sect. 39 of the Oopyhold
Act, 1852.
JSxpenses.
34. — (1.) The expenses of a compulsory enfranchise- Expenses of
ment under this Act shall be borne by the person who dealings
requires the enfranchisement. hSwbot*e.
(2.) A sum in respect of the expenses of a compulsory
enfranchisement shall not be due or recoverable from any
person until it has been certified by order of the Board of
Agriculture to have been properly incurred.
Provisions to the like effect were contained in sect. 30 of the
Copyhold Act, 1852. See the Treatise, p. 409.
(3.) The expenses of a voluntary enfranchisement under
this Act shall be borne by the lord and tenant in such
proportions as they agree, or in default of agreement as
the Board of Agriculture direct.
(4.) All expenses which in the opinion of the Board of
Agriculture are incidental to an enfranchisement, whether
for proof of title, production of documents, expenses of
witnesses or otherwise, shall, for the purposes of this Act,
be expenses of the enfranchisement.
(6.) Where there is any dispute as to the amount of the
expenses payable by or to any person under this Act the
Board of Agricultmre may ascertain the amoimt and de-
clare it by order, and the order shall be conclusive as to
28 The Copyhold Act, 1894.
the amount and that it is payable by or to the persons
mentioned in that behalf in tne order.
These three sub-sections re-enact the similar proyisions contained
in sects. 58 and 65 of the Copyhold Act, 1841, sect. 30 of the Copy-
hold Act, 1852, and sect. 35 (c) of the Copyhold Act, 1887.
(6.) If by reason of dispute as to title it appears to the
Board of A^culture to be uncertain on whom an order
to pay expenses should be made,, the Board may, if they
think fit, grant to the person entitled to reoeive payment
of the expenses a oertmcate of charge on the manor or
land, as the case may be, in respect of which the expenses
were incurred.
This sub-section re-enacts the provisions of sect. 28 of the
Copyhold Act, 1858.
KeooTeryof 35, — (1.) When money is declared by this Act to be
ezpenaes. payable by any person on account of the expenses of pro-
ceedings under this Act,—
(a) it may be recovered as a debt due from the person
liable to pay to the person entitled to receive it ;
{h) if the expenses are in respect of a compulsory en-
franchisement, and the amount is certified by an
order of the Board of Agriculture, it may be
recovered in any way provided by this Act for
the recovery of the consideration for the enfran-
chisement ;
(c) if the amount is certified by an order of the Board
of Agriculture, and the person liable to pay the
amount does not pay it immediately after re-
ceiving notice of the order, the person to whom
the amount is payable shall be entitled to obtain
from a court of sunmiary jurisdiction a warrant
of distress against the goods of the person in
default ;
(d) if the money is payable by a lord to a tenant, or by
the owner 01 a rentcharge to the owner of the
land charged, it may be set off against any money
which at Qie time is receivable by the lord from
the tenant, or by the owner of the rentcharge
from the owner of the land charged, as the case
may be.
The provisions in clauses (a) and (d) of this sub-section were
taken from sect. 35, sub-sects, {a) ana (b), of the Copyhold Act,
1887. The provisions in clause (6) occmred in sect. 30 of the
Supplement to the Treatise. 29
Copyhold Act, 1852, and provisions similar to those in clause (c)
were contained in sect. 65 of the Copyhold Act, 1841.
(2.) If a tenant vho is a trustee, or is not beneficiallj
interested in the land of which he is tenant, properly pays
any expenses of an enfranchisement under this Act, he
may, except as against an unadmitted mortgagee, recover
the amount paid from the person who is entitled to the
land at the date of the enfranchisement.
This sub-section incorporates the provisions of sect. 67 of the
Copyhold Act, 1841, as amended by sects. 1 and 3 of the Copyhold
Act, 1844, and makes them applicable not only to the expenses of
a voluntary enfranchisement, as was provided by the Acts of 1841
and 1844, out also to the expenses of a compulsory enfranchise-
ment. It would seem that a tenant who is a trustee may also
charge the land with the expenses by virtue of sect. 36 Tl), posU
The manner of recovering the expenses of a lord, as well in the
case where he is a trustee of the manor as in the case where he is
absolute owner, is explained in sect. 37, post.
(3.) If an occupier of land properly pays any expenses
of an enfranchisement under this Act he may deduct the
amount paid from his next rent.
This sub-section re-enacts the provisions to the same effect con-
tained in sect. 45 of the Copyhold Act, 1841.
Charge for Consideration Money and Expenses,
36. — (1.) Where an enfranchisement is effected under ^argefor
this Act, the tenant may charge the land enfranchised ^.J^^d''''
with all money paid by him as the compensation or con- expenses of
sideration for the enfranchisement, and with his expenses tenant,
of the enfranchisement, or, with the consent of the lord
with any compensation payable, or with any part thereof
respectively.
This sub-section incorporates provisions to a similar effect which
were contained in sects. 21 and 24 of the Copyhold Act, 1858, but
omits the condition as to the consent of the £oard of Agriculture.
See the Treatise, p. 406.
(2.) Where land is conveyed as the consideration for a
voluntary enfranchisement under this Act, and the person
conveying the land is absolute owner of the land con-
veyed, he may charge the land enfranchised with such
reasonable sum as the Board of Agriculture consider to be
equivalent to the value of the land conveyed and with the
expenses of the conveyance.
Section 22 of the Copyhold Act, 1858, contained a provision to
the like effect.
30
The Copyhold Act, 1894.
Charge for
loid's
expenaes*
(3.) Where a lord purchases under this Act a tenant's
interest in land he may charge the land purchased, and
the manor and any land settled therewith to the same uses,
with the purchase-money and the expenses of the purchase.
This sab-section re-enacts the proyisions of sect. 23 of the Copy-
hold Act, 1858, but omits the references to the consent of the
Board of Agriculture contained in the Act of 1858.
(4.) When a charge may be made under this section,
the expenses of the charge may be included in the charge.
This sub-section re-enacts the provisions of sect. 26 of the Copy-
hold Act, 1858.
(5.) A charge under this section may be for a principal
sum and interest thereon not exceeding five per cent, per
annum, or may be by way of terminable annuity calcu-
lated on the same basis.
This sub-section repeats the provisions to the like effect contained
in sect. 23 of the Copyhold Act, 1887.
(6.) A charge under this section may be by deed by
way of mortgage, or by a certificate of charge xmder this
Act.
This sub-section incorporates the provisions as to the form of the
charge contained in sect. 23 of the Copyhold Act, 1887, and sects.
29 and 36 of the Copyhold Act, 1858.
(7.) A charge under this section shall be a first charge
on the manor or land subject to the charge, and shall have
priority over all incumbrances whatsoever affecting the
manor or land, except tithe rentcharges and any (Siaige
having priority by statute, notwithstanding that those
incunibrances are prior in date.
This sub-section replaces sect. 33 of the Copyhold Act, 1858, and
the provisions to the like effect contained in sect. 23 of the Copy-
hold Act, 1887. By both of these sections, however, the exception
was confined to tithe rentcharges and *' charges on the land for the
drainage thereof by virtue of any of the statutes in that behalf."
(8.) Any money secured on land may be continued on
the security thereof notwithstanding a charge imder this
section.
This sub-section re-enacts a provision to the like effect contained
in sect. 33 of the Copyhold Act, 1858, and repeated in sect. 23 of
the Copyhold Act, 1887.
37. — (1.) Expenses incurred by a lord in proceedings
under this Act may —
(a) be paid out of any consideration or comipensation
Supplement to the Treatise. 31
money (where it is a gross sum) arising in respect
of the proceedings ; or
{b) be charged, together with the expenses of the charge,
on the manor or on land settled to the same uses
as the manor or on any rentcharge arising in
respect of the proceedings or in respect of any .
enfranchisement made under this Act within
the manor.
The pTOTisions in clause (a) of this sub-sectioii were taken from
sect. 58 of the Copyhold Act, 1841, and sect. 31 of the Copyhold
Act, 1852, as amended by sect. 24 of the Copyhold Act, 1858. See
the Treatise, pp. 409, 410.
The provisioDS in clause {h) were taken from sect. 24 of the
Copyhold Act, 1887.
The provisions in both clauses would seem to apply as well to the
case whore the lord has but a limited interest in tne manor or is
trustee, as to the case where he is absolute owner.
(2.) A charge under this section shall be by deed by
way of mortgage, or by a certificate of charge under this
Act.
This sub- section incorporates the provisions as to the form of the
charge contained in sect. 24 of the Copyhold Act, 1887, and in
sects. 29 and 36 of the Copyhold Act, 1858.
(3.) This section does not apply to the expenses of a
purchase by the lord of a tenant's interest under this Act.
This sub-section replaces a provision in sect. 27 of the Copyhold
Act, 1858, which distmguished the expenses of a purchase by the
lord from other expenses. Sect. 11 (8;, and sect. 36 (3), ante, pro-
vide for the expenses of a purchase by the lord.
38. If a tenant or pei'son claiming to be tenant pays Charge for
any money in respect of the compensation or consideration oonslderatlon
for an enfranchisement under this Act, and is afterwards tenant' rtitio^
evicted from the land enfranchised, he may claim against proves bad.
the land enfranchised the amount of the money or so much
of it as is not charged on the land under the other provi-
sions of this Act, and that amount shall be a charge on
the land with interest thereon at the rate of four per cent,
per annum from the date of the eviction.
A provision to this effect was contained in sect. 47 of the Copy-
hold Act, 1852.
39. If a mortgagee pays under this Act any compensa- Charge for
tion or consideration money or expenses in respect of an money paid
enfranchisement of or redemption of a rentcharge on the ^^,
mortgaged property the amount so paid shall be added to
32 The Copyhold Act, 1894.
his mortgage, and the mortgaged property shall not be
redeemable without payment of that amount and interest
thereon.
A proyisioxi to this effect was contained in sect. 43 of the Copy-
hold Act, 1852.
Power to ad- 40. Any eompany authorised to make advances for
TOqiSed for ''^^^ks of agricultural improvement to owners of settled and
purposes of other estates, may, subject and according to the provisions
-A-ct. of its Act of Parliament, charter, deed, or instrument of
settlement, make advances to owners of settled and other
estates of such sums as may be required for the payment
of any compensation or consideration for enfranchisement
under this Act, or of any expenses chargeable on a manor
or land under this Act or otherwise, and take for their
repayment a charge for the same in accordance with those
provisions respectively.
This section re-enacts the proyisions contained in the last part of
sect. 23 of the Copyhold Act, 1887.
(^^catee of 41^ — (1.) ^ certificate of charge under this Act shall
charge. -^q under the seal of the Board of Agriculture, and shall
be countersigned by the person at whose instance the
charge is made.
(2.) If the charge is by way of terminable annuity the
certificate shall state the amount of the annuity and the
term durinfl^ which it is payable.
(3.) If the charge is for a principal sum and interest
the certificate shall state the amoimt of the principal sum
and the rate of interest, and shall contain a proviso
declaring that the certificate shall be void on payment
of the principal with any arrears of interest due thereop
at a time specified in the certificate or at the expiration of
an ascertained notice.
(4.) The manor or land charged by the certificate may
be described by reference to the proceedings under this Act
in respect of which the charge is made, or otherwise as the
Board of Agriculture see fit.
These four sub-sections re-enact the provisions of sect. 29 of the
Copyhold Act, 1858.
(5.) The certificate and the charge made thereby shall
be transferable by indorsement on the certificate.
This sub-section re-enacts sect. 30 of the Copyhold Act, 1858.
(6.) A certificate of charge taken by the lord of any
Supplement to the Treatise. 33
iill tt<3t > manor or by the tenant or owner of any land shall not
2Q(listai$ merge in the freehold or other estate in the manor or land
unless the owner of the charge, by endorsement on the
of tk'^^ certificate or otherwise, declai^ in writing his intention
that the charge shall merge.
J -ggg « This subsection repeats the proyisions of sect. 34 of the Copyhold
..I Jen Act, 1858.
[gettledc
gproTii^ (7.) The owner for the time being of a certificate of
j^jumeat-' chai'ge shall have for the recovery of any sum in the
I and d^ nature of interest or periodical payment becoming due
18 V^J^ under the certificate the like remedies as the owner of a
^jicDiS^ rentcharge under this Act has in respect of his rentcharge,
QQ ft 10" and shall also have, in respect of every sum whether in the
g for tii^ nature of interest or periodical payment or principal sum
\^tiitk^ secured by the certificate, the like remedies as a mortgagee
in fee simple of freehold land has in respect of the principal
jipi^; sum and interest secured by his mortgage.
This subsection replaces sect. 35 of the Copyhold Act, 1858.
I Act sl^ (8.) A certificate of charge and a transfer thereof may
^ and ^ be in the forms c )ntained in that behalf respectively in the
itftflce ^ First Schedule to this Act, or in forms to the like effect.
A, This subsection and the forms contained in the First Schedule to
lllUlif ^ this Act re-enact sects. 36 and 37 of the Copyhold Act, 1858, with
tf god ti^ a variation, however, in the form of the certificate of charge
' which was provided by sect. 36 of the Copyhold Act, 1858.
riB
eot
(hereoJi 42, — (1.) On the admittance or enrolment of any tenant, Notioe of
atiou of the steward of the manor shall, without charge, give to the jight to en-
tenant admitted or enrolled, a notice of his nght to obtain >i*^-p„ k^
' ^ DO given oj
ite iDfly enfranchisement. steward.
^^i (2.) The notice shall be in the form contained in that
^ thfl behalf in the First Schedule to this Act, or in a form to
the like effect.
* ^ (-i.) If a steward neglects on any admittance or enrol-
ment to give the notice required by this section, he shall
. f not be entitled to any fee for that admittance or enrol-
ibj^ ment.
.. This section, together with the form contained in the Schedule,
:, 1^"^ re-enact the provisions of sect. 1 of the Copyhold Act, 1887. See
1 JtHj the Treatise, p. 70.
E. D
Part V. — Administrative Provisions.
/''^ jt Notice of Right to Enfranchise.
34
The Copyhold Act, 1894.
iiiited
owners.
TmsteeB.
Bepreaenta-
tion of
infants,
lunatios, &o.
Ifarried
"woman for
purposes of
Act to be
feme sole.
Steward in
general to
represent
lord.
Parties to Proceedings under Act,
43. Anything by this Act required or authorised to be
done by a lord or by a tenant may be done by him not-
withstanding that his estate in the manor or land is a
limited estate only.
A proyision to this effect was contained in sect. 39 of the Copy-
hold Act, 1887.
44. — (1.) Anything by this Act required or authorised
to be done by a lord or by a tenant may be done by him
notwithstanding that he is a trustee.
(2.) Where the lords or the tenants are trustees and
one or more of the trustees is abroad or is incapable or
refuses to act, any proceedings necessary to be done by
the trustees for effecting an enfranchisement under this
Act may be done by the other trustee or trustees.
Section 39 of the Copyhold Act, 1887, contained a provision
similar to that in sub-sect. (1) above.
Sub-section (2) re-enacts sect. 40 of the Act of 1887. See the
Treatise, pp. 377, 382.
45. When a lord or a tenant or any person interested
in an enfranchisement or redemption or sale or otherwise
under this Act is an infant or a lunatic, or is abroad or is
unknown or not ascertained, anything by this Act required
or authorised to be done by or in respect of him shall be
done on his behalf, if he is an infant and has a guardian,
by his guardian, and if he is a lunatic and there is a
committee of his estate, by the committee, and if he is
abroad and has an attorney authorised in that behalf, by
his attorney, and in every other case by some fit person
appointed by the Board of Agriculture to represent him
for the purposes of this Act.
Provisions to the like effect were contained in sects. 11 and 56 of
the Copyhold Act, 1841, and sect. 39 of the Copyhold Act, 1887.
46. A married woman being lady of a manor or tenant
shall, for the purposes of this Act, be deemed to be a feme
sole.
This section re-enacts a provision to the like effect contained in
sect. 39 of the Copyhold Act, 1887.
47. — (f .) A lord for the purposes of this Act may act
either on his own behalf, or by his steward, or may
appoint an agent other than his steward to act for him.
(2.) Unless and until a lord has given to a tenant and
)l Supplement to the Treatise. 36
to the Board of Agriculture notice in writing that he
^^' intends to act on his own behalf, or has appointed an
auiliGni^^ agent (to be named in the notice) other than his steward
lonebjlss* to act for him, the steward shall for the purposes of this
lor cr to* Act represent the lord in all matters of procedure, and the
tenant and the Board may treat the steward as the agent
iSSd^'' o^f the lord for the purpose of giving and receiving notices,
and (except where this Act expressly requires a special
J orauft^ authority from the lord) of making agreements, and of all
le done Ij^ other matters relating to enfranchisement.
This section replaces sect. 33 of tlie Copyhold Act, 1887. See the
g frd^ ' Treatise, p. 31 1 , as to the matters in which the steward, as a general
• incflW-i rule, represents the lord.
'^ t iftj^ jPcr a definition of "steward" as used in this Act, see sect. 94,
Qt Qiider ^ ^except where this Act expressly requires a special authority.
ie»' —See sect. 23 (2) and sect. 86 (5) of this Act.
gj g jjtfR^' 48, — (1.) A lord or tenant or other person interested in Appointment
^^ geeik any proceedings under this Act may by power of attorney ^ agent by
l{&^
appoint an agent to act for him in the execution of this attorney.
Act.
^^ hpr^ (2.) The power of attorney must be in writing, and
'^^d must be signed by the person giving it, or, if it is given
* ni«J ^y * corporation aggregate, be sealed or stamped with the
^'k!]! be s^ ^^ ^^® corporation.
^ ^S«ft ^^'^ ^^® power of attorney, or a copy thereof authen-
P^ J tioated by the signature of two witnesses, must be sent to
".^|- jg the Board of Agriculture.
f 1/ by (^') ^^® appointment of an agent under this section
'^ Iqj^ may be revoked by the person who gave it sending to the
ttott Board notice in writing, signed or sealed as the case
^^ requires, of the revocation.
, (6.) When an agent has been appointed under this
9^^ sedion, and the agency is subsisting —
^ * {a) everything which is by this Act directed or autho-
r iet^ioi liaed to be done by or in relation to the principal,
jafe^^ may be done by or in relation to the agent;
and
i^edi^ (ft) the agent may concur in and execute any agree-
ment or application or document arising out of
^y get the execution of this Act ; and
nf 01 W ©v^ry person shall be bound by the acts of the agent
j^, acting vrithin his authority, as if they were the
f iifld acts of the principal.
d2
36 The Copyhold Act, 1894.
(6.) A power of attorney under this section may be in
the form mentioned in that behalf in the First Schedule to
this Act, or in a form to the like effect.
This section incorporates and re-enacts the proyisions of sects. 39
and 40 of the Copyhold Act, 1858. See the Treatise, pp. 377, 378,
and 381.
Death 49, — (I.) The proceedings for or in relation to an en-
P^^^P™" franchisement under this Act shall not abate by the death
of the lord or tenant pending the proceedings.
A provision to this effect was originally contained in sect. 41 of ;
the Copyhold Act, 1841, and it was repeated in sect. (51 of the
Copyhold Act, 1887. See the Treatise, pp. 378 and 382.
(2.) Where an admittance or enrolment is necessary in
consequence of the death, the admittance or enrolment
shall be made, but no fine, relief, orheriot shall be payable
to the lord in consequence of a death or any admittance or
enrolment on a death occurring between the date of a
notice to enfranchise or a completed agreement for enfran-
chisement under this Act, and the enfraDchisement in
pursuance of that notice or agreement, and the compensa-
tion shall be ascertained on the same footing as if the
enfranchisement had been effected immediately after the
commencement of the proceedings.
This sub-section re-enacts the proyisions to the same effect con-
tained in sect. 31 of the Copyhold Act, 1887, which over-ruled the
decision in Myt^s v. Hodyson, 1 C. P. Div. 609, that the lord was
entitled, under the provisions of sect. 1 of the Copyhold Act, 1852,
to a fine on the new admittance.
Succession of 50, All rights conferred and all liabilities imposed by
"8|ht« and |j^ ^^^ ^^ ^ j^j^ ^^ ^j^ ^ tenant shall be held to be oon-
liabmties. • i <■ • j ^- i ^-l
ferred and miposed respectively on the successors in
title of the lord and tenant unless a contrary intention
appears.
This section re-enacts the provisions of sect. 38 of the Copyhold
Act, 1887.
Power to 61. — (1.) Before any enfranchisement under this Act
require de- ^]^q Board of Agriculture may if they think fit require the
lord's title. ^^^^ ^^ ^® steward to make a statutory declaration in such
form as the Board direct, stating who are the persons for
the time being filling the character or acting in the capacity
of lord, the nature and extent of the estate and interest of
the lord in the manor, and the date and short particulars
of the deed, will, or other iDstrument under which he
claims or derives the title, and the name and style of the
Supplement to the Treatise, 37
^. JJJJ-, person in whose name the court of the manor was last
'■Us:^' ^^^^^^^ ^^^ the date of the holding of that court, and the
incumbrances, if any, affecting the manor, and the Board
_.-^. ,y: may accept a declaration made under this section for the
'^'•r* purposes of this Act.
(2.) If the lord or his steward does not make a dedara-
atirtt-J^' tion which he is required to make in pursuance of this
♦etrtb^ section, or if in the opinion of the Board the declaration
' does not fully and truly disclose all the necessary particu-
^ .^ ^. lars, or if the lord refuses to give any evidence which the
^^ji-'- Board think proper and necessary to show a satisfactory
|iJ^i pnmd facie title in the lord, or if the Board think that the
- n«c^ incumbrancers should be protected, the Board may, if they
^ ^;^ think the justice of the case requires it, direct the compen-
Mj^rjjii sation or consideration where it is a gross sum to be
or
ws^' paid into Court or to trustees in manner directed by this
' , date '-' -A-ct.
foresi^ (3.) Where the lord applies to the Board to efEect an
^l yfss^ tenant of the land proposed to be enfranchised so requires,
. .. f: satisfy themselves of the title of the lord.
iiel^ afi^' Sub-sections (1) and (2^ of this section incorporate and re-enact
' the provisions contained in sect. 22 of the Copyhold Act, 1852, and
^^ sect. 32 of the Act of 1887 ; and sub-section (3) repeats the provi-
ainef'^"^';. sions of sect. 23 of the Act of 1852. See the Treatise, pp. 366,
orer-^,; 376, 377.
j„ Questions arising in Proceedings under Act.
"^ ^^^isi- 52, On an enfranchisement under this Act — Boundaries.
1^ ^j (1.) Where the identity of any land cannot be ascer-
•^^^V jpj tained to the satisfaction of the valuers, if the
^ ^ quantity of the land is mentioned in the court
prsi
rolls of the manor, and is therein stated to be in
' the^^f^ statute measure, the land shall be taken to be of
. that quantity, and in every other case the quan-
ler thi^ ^ tity shall be determined by the valuers :
I Te(f^^ (2.) Where the land is not defined by a plan on the
tJoniD^ court rolls the valuers shall, if requested in
fdi^^. writing by the lord or the tenant, define the
the^r^ boundaries of the land by a plan :
lint^ Provided that a plan shall not be made except
paffi'^ by agreement between the lord and tenant where
w0 f* it appears by the court rolls or otherwise that the
tjle
ol^
38
Thb Copyhold Act, 1894.
Power for
Board to
decide ques-
tions arisiiig
in enfran-
chisements.
boundarioB of the land have been for more than
fifty years last past treated as being intermixed :
(3.) Where, after the appointment of valuers, there is
any doubt or differenoe of opinion as to the
identity of any land, the lord or tenant may
apply to the Board of Agriculture to define the
boundaries of the land for the purposes of the
enfranchisement, and the Board shall ascertain
and define the boundaries in such manner as
they think proper :
(4.) A plan made under this section and approYed by
the Board, and a definition of boimdaries by the
Board under this section, shall be conclusive as
between the lord and the tenant.
This section re-enaots the provisions of sect. 42 of the Copyhold
Act, 1887. See the Treatise, p. 391.
53. — (1.) If any objection is made or question arises in
the course of the valuation in a compulsory enfranchise-
ment under this Act in relation to any alleged custom, or
the evidence thereof, or any matter of law or fact material
to the valuation or arising on the enfranchisement, the lord
or tenant may require, in writing, that the question be re-
ferred to the Board of A^culture, and the Board shall
inquire into and decide the question, and their decision
shall, subject to the appeal provided by this section, be
final.
This sub-section repeats the provisions to the like effect contained
in sect. 8 of the Oopyhold Act, 1852, as amended by sect. 29 of the
Copyhold Act, 1887.
(2.) Either party may appeal to the High Court by way
of special case from a decision of the Board on a matter of
law, subject to the following provisions, that is to say : —
(a) an appUcation to state a case must be made to the
Board within twenty-eight days after the deci-
sion appealed from :
(6) the person applying^ for the case must give to the
other party to the inquiry not less than fourteen
days' previous notice in writing of the intended
application :
{c) the case shall, if the parties differ, be settled by the
Board:
{d) the judgment of the Court on a special case shall
Buppktnent to tl^ Treatise. 39
be final and binding on the parties and on the
Board.
This sub-section repeats the provisioiis of sect. 8 of the Copyhold
Act, 1852, which inconx>rated certain of the provisions contained in
sect. 40 of the Copyhold Act, 1841, as to appeals from the decisions
of the Copyhold Commissioners (now represented by the Board of
Agriculture). See the Treatise, pp. 395, 396.
54. — (1.) The Board of Agriculture, or a valuer, may, Power to call
for the purposes of this Act, by summons under the seal of ^Jn^i^^^' -
the Board — ^ mente and
(fl) call for the production, at such time and place as the exmnme
Board appoint, of any court rolls or copies of '^*^®**®**
court roll, or any books, deeds, plans, documents
or writings relating to any matter before them,
in the possession or power of any lord or tenant
or steward ; and
(b) summon to attend as witness any lord or tenailt or
other person.
(2.) The Board or a valuer may examine any witness
on oath and may administer the oath necessary for that
purpose.
(3.) A lord or tenant summoned under this section shall
not be bound to answer any question as to his title.
(4.) If any person summoned under this section, to
whom a reasonable sum has been paid or tendered for his
expenses, without lawful excuse neglects or refuses to
attend, or to give evidence, or to produce a document in
pursuance of the summons, he shall be liable on summary
conviction to a fine not exceeding five pounds.
(5.) If any person wilfully gives false evidence in any
proceeding under this Act he shall be guilty of perjury.
(6.) If any person wilfully destroys or alters any docu-
ment of which the production is required under this section
he shall be guilty of a misdemeanour.
This section re-enacts the provisions of sect. 5 of the Copyhold
Act, 1852.
65. The Board of Agriculture may, if they think fit, Expenses of
order that the expenses of any inquiry by the Board imder ^^ Board,
this Act, including the expenses of witnesses and of the
production of documents, be paid by the parties to the
inquiry, and to such person, and in such proportions, as
the Board think proper.
This section re-enacts the proyisions contained in sect. 44 of the
40 The Copyhold Act, 1894.
Copyhold Act, 1841. Under 31 & 32 Vict. c. 89, s. 1, the Board
have power to take security for the payment of any costs they may
incur in making inquiries under the Copyhold Acts. See the
Treatise, p. 422, n.
PowCTto gg^ — (1,) Where, in the course of an enfranchisement
cStf^g^on under this Act, it is found that a manor or the lord's estate
manor to aud interest in any land belonging thereto, which may be
°t^ ^*^^ **' the subject of enfranchisement, is subject to the payment
of a fee-farm rent or to any other charge, the Board of
Agriculture may, on the application of the person for the
time being bound to ma^e the payment or defray the
charge, by order under their seal, direct that the rent or
charge shall be a charge on any freehold land specified in
the order of adequate value, and held under the same title
as the manor or land respectively, or on an adequate
amount of Government stocks or funds to be transferred
into Court by the direction of the Board, or into the names
of trustees appointed by the Board.
(2.) From and after the sealing of the order the manor
and land shall be discharged from the rent or charge, and
the rent or charge shall be a charge on the land or the
fimds specified in that behalf in the order.
(3.) There shall, by virtue of this Act, be attached, so
far as the nature of the case will admit, to every charge
under this section the like remedies, as against the land
or funds made subject thereto, for the recovery of the
amount charged as might have been had as against the
manor or land in respect of the original charge.
This section re-enacts the provisions of sect. 21 of the Copyhold
Act, 1887.
Notices^ ImtrumentSj and Forms,
Notioes. 57, — (1.) A notice required or authorised by this Act
to be given to any person must be given in writing, and
may be given —
(a) by leaving it at his usual or last known place of
abode or business in the United Kingdom, or
(b) by sending it by post in a registered letter addressed
to him at that place, or
(c) where he is a tenant of any premises, by delivering
the notice or a true copy of it to some person on
the premises, or if there is no person on the pre-
mises to whom it can be delivered with reasonable
Supplement to the Treatise. 41
diligence, by fixing it on some conspicuous part
of the premises.
("2.) Where a notice is required by this Act to be given
by the Board of Agriculture or a valuer arid no other mode
of giving the notice is directed, the notice may be either
in the name of the Board or valuer, as the case may be, or
on their behalf respectively in the name of any person
authoribcd by the Board to give notices.
This section incorporates and re-enacts the provisions of sect. 20
of the Copyhold Act, 185«, and tect. 36 of the Copyhold Act, 1887.
— a notice in writing.— See the Interpretation Act, 1889, s. 20,
as to the meaning of *' writing " in Acts of Parhament.
—sending by post.— See the Interpretation Act, 1889, s. 26, as to
the meaning oi the words *' sending by post,'' when occurring in
Acts of Parliament.
68. — (1.) An agreement, valuation, or power of attor- Stamp duty,
ney under this Act shall not be chargeable with stamp
duty.
(2.) An enfranchisement award shall be chargeable with
the like stamp duty as is chargeable in respect of an en-
franchisement deed.
(3.) A certificate of charge under this Act and a transfer
thereof shall be chargeable with the like stamp duty as is
chargeable in respect of a mortgage and a transfer of a
mortgage Tespectively.
This section incorporates and re-enacts the provisions of sect. 93
of the Copyhold Act, 1841 ; sect. 50 of the Copyhold Act, 1852 ;
and sect. 32 of the Copyhold Act, 1858.
An enfranchisement deed is stamped as a '* conveyance on sale "
as defined by the Stamp Act, 1891. See the Treatise, pp. 369 and
674 et aeq,
69. The Board of Agriculture may require the payment Payment of
of all office fees and other expenses of the Board from office fees,
either lord or tenant requesting the delivery of any award,
deed, or order under this Act, before delivering it.
This section re-enacts sect. 34 of the Copyhold Act, 1887.
A tahle of fees authorised to be taken hy the Board of Agriculture
in respect of traosactions under the Copyhold Act will be found at
p. 493 of the Treatise.
60. — (1.) The Board of A^culture may at any time if Power for
they think fit, on the application of any person interested Board to
in an award or deed of enfranchisement or charge or other iJ^^tru"^"
instrument made or issued or having eifect under the pro- ments.
visions of this Act, correct or supply any error or omission
arising from inadvertence in that instrument.
42
The Copyhold Act, 1894.
Execution of
enfranohise-
ment inBtm-
ment to be
conclusive of
regularity of
proceedings.
Inspection of
court rolls
after enfran-
chisement.
(2.) Before making an alteration nnder this section the
Board shall give suoh notice as they think proper to the
persons a£Fected by the alteration.
(3.) An alteration shall not be made in an instrument
relating to a voluntary enfranchisement without the consent
in writing of the persons affected by the alteration.
(4.) Tne expenses of and incidental to an application
under this section shall be paid by the persons interested
in the application or some of them if and as the Board
direct.
Sub-sections (1) and ^2) inoorporate and re-enact tlie provisions of
sect. Id of the Copyhold Act, 1852, and sect. 44 of the Copyhold
Act, 1887.
Sub-section (3) is founded on the provisions of sect. 35 of the
Copyhold Act. 1841, and it re-enacts a provision which seems to
have been altered, if not repealed, by sect. 44 of the Copyhold Act,
1887.
Sub-section (4) re-enacts a provision to the Hke effect contained in
sect. 44 of the Copyhold Act, 1887.
61. — (1.) The confirmation under the seal of the Board
of Agriculture of an award of enfranchisement, and the
execution by the Board of a deed of enfranchisement
respectively, shall be conclusive evidence of compliance
with all the requirements of this Act with respect to pro-
ceedings to be taken before the confirmation or execution.
(2.) An award or deed of enfranchisement shall not be
impeached by reason of any omission, mistake, or infor-
mality therein or in any proceeding relating thereto, or of
any want of any notice or consent required by this Act, or
of any defect or omission in any previous proceedings in
the matter of the enfranchisement.
This section re-enacts the provisions of sect. 33 of the Copyhold
Act, 1852. See the Treatise, p. 398.
62, — (1.) Any person interested in any land enfran-
chised under this Act may at any time inspect and obtain
copies of the court rolls of the manor of which the land
was held on payment of a reasonable sum for the inspection
or copies.
(2.) The Board of A^culture may, if they think fit,
fix a scale of fees to be paid to the steward or person having
custody of the court rolls for the inspection and for making
extracts or copies.
This section re-enacts the provisions contained in sect. 20 of the
Copyhold Act, 1852. See the Treatise, p. 417.
Supplement to the Treatise, 43
As to the inspection of court rolls of a manor by copyholders and
persons having a prijnd facie title to copyhold property within the
manor, see the Trdatise, pp. 314 — 316.
63. — (1.) Any person interested in any land included Evidence
in any enfranchisement or commutation made by appor- ^g^g^ndep
tionment under the Copyhold Act, 1841, may inspect and repealed Acts,
obtain copies of or extracts from any instrument relating 4 & 6 Vict,
to the enfranchisement or commutation deposited with a «• 35.
cleric of the peace or steward of a manor under that
Act.
(2.) A person requiring under this section inspection of
or a copy of or extract from any instrument shall give
reasonable notice to the person having the custody of the
instrument, and shall pay to him for every inspection a
fee of two shillings and sixpence, and for every copy and
extract a fee at the rate of twopence for every seventy-two
words in the copy or extract.
(3.) Every recital or statement in, or agreement,
schedule, map, plan, document, or writing annexed to a
confirmed apportionment made under the said Act shall
be sufficient evidence of the matters recited or stated, and
of the accuracy of the map or plan respectively.
Enfranchisements and commutations of manorial incidents by
schedules of apportionment were authorised by the Copyhold Act,
1841, but were abolished by the Copyhold Act, 1858, sect. 2, with a
saving, however, in sect. 3 of that Act as to enfranchisements and
commutations then effected. See the Treatise, pp. 360 and 361.
This section keeps alive the rights conferred by sect. 33 of the Act
of 1841 on persons whose lands had been enfranchised or commuted
in that manner.
64. — (1.) When all the lands held of a manor have Custody of
been enfranchised, the lord, or with the consent of the ^^^^g^.
lord, any person having custody of the court rolls and chiaement.
records of the manor, may hand over all or any of the
court rolls and records to the Board of Agriculture or to
the Master of the Bolls.
(2.) Where any court rolls or other records are in the
custody of the Board of Agriculture, the Board may hand
over all or any of them to the Master of the Bolls.
(3.) Any person interested in any enfranchised land
may inspect and obtain copies of and extracts from any
court rolls or records in the custody of the Board, or of
the Master of the Bolls, relating to the manor of which
that land was held or was parcel, on payment of such
u
The Copyhold Act, 1894.
Board to
frame and
ciiroalate
forms.
Board to
publish a
scale of corn*
pensation. ,
reasonable fees as are fixed from time to time by the Board
or the Master of the Rolls respectively.
(4.) The Master of the Bolls may undertake the custody
of court rolls and records handed over to him under this
section, and may make rules respecting the manner ia
'which, and the time at which inspection may be made and
copies and extracts may be obtained of and from the
court rolls and records in his custody, and as to the
amount and mode of payment of the fees for the inspec-
tion, copies, and extracts respectively.
(5.) Every rule made under this section shall be laid, as
soon as may be, before both Houses of Parliament.
This section repeats the provisions of sect. 21 of the Copyhold
Act, 1852, as enlarged by sect. 48 of the Copyhold Act, 1^87. See
the Treatise, p. 316 and pp. 417-8.
65. The Board of Agriculture shall frame and cause to
be printed forms of notices and agreements and such other
instruments as in their judgment will further the purposes
of this Act, and shall supply any such form to any person
who requires it, or to whom the Board think fit to send it,
for the use of any lord or tenant desirous of putting this
Act into execution.
This section re-enacts the provisions to the like effect contained
in sect. 20 of the Copyhold Act, 1841. This power to frame forms
cannot be delegated by the Board, see sect. 91, post. Copies of the
forms issued by the Board will be found in Appendix til. to the
Treatise, pp. 477-492.
66,— (1.) The Board of Agriculture shall frame, and
cause to be printed and published —
(a) such a scale of compensation for the enfranchisor
ment of land from the several rights and inci-
dents, including heriots, specified or referred to
in this Act, as in their judgment will be fair and
just and will facilitate enfranchisement, together
with such directions for the lord, tenant, and
valuers as the Board think necessary, and
(b) a scale of allowance to valuers for their services in
the execution of this Act.
(2.) The Board may vary any such scale..
(3. ) The scales published by the Board under this section
shall be for guidance only, and shall not be binding as a
matter of law in any particular case.
(4.) The person requiring an enfranchisement shall state
. Supplement to the Treatise. 49
any Bnoh oorpoistion would be afFeoted by IlLe
eofraacIuBemeiit,
unless the agreement is made with the consent in writing
of that corporation or persoQ.
(2.) A oonBent under this section must, in the case of a
corporation aggr^ate, be under the seal of the oorporation,
and in other oases be signed by the person giving it, and
must in every case be annexed to the agreement to which
it relates.
This Beotion re-enacts the proTieioiiB of seot. 22 of the Copyhold
Act, IMl. See the Treatise, p. 428.
" Ecolefdoatkal corporatioii " is defined ia sect. 94, pott, fay
reference to Epiaoopal and Capitular EstateH Act, 1851, and the
Acts amending the same. See the Treatise, p. 429, for Uie deiiiii-
tion ae contained in the Episcopal, && Estates Aote.
73. TVbere land proposed to be enfranchised under the Notioe to
provisions of this Act with re>i.^rt t.> compulsory eiifrau- ^"^eslMtlrtl
ctusement is held of a manor Li-Iungiiig uitbur in possesHiOD i
or reversion to an eoclesiastioiil '.tirporation, the Ecc-1p '
tical CommissioDers shall hav notic&q*
and shall have the like power <if es^
dissent from the proceedings a-, is pron
with respect to a person entitLil in rt-versi
and the provisions of this Ait with respecT __
and the proceedings thereon, i-iiall apply accordingly.
This section replaces sect. 19 of the Copyhold Act, 1698. See tlie
Treatise, p. 433.
—as is provided by this Act with respect to a person entitled
in reversion, &c. — See sect. 14 {Z\ and sect. 16 {2), ante.
See sect. 76, poff, for the proceaure to be adnpted if it appears
to the Board of Agriculture that the enfranchisement ehbuld be
effected under the Epiacopal, &c. Estates Acts. _ .
74. — (1.) Any flOi^Mnjation or oonmdeTati0n- money to EFJramhi'.p.
be paid under this Aet^Jt the uso'of any spiritoal -pwBoa f"'"' "'**v'-y
in respect of his benefice or cure may at the option of the ,^riiimi"
lord be paid to Queen Anne's Bounty, and the receipt of ptr-i.n m^y
the treasurer shall be a sufficient discharge. ^ paid to ^
(2J Money paid under this section shall be applied by bo^^', * *
the Bounty as money in their hands appropriated for
the augmentation of the benefice or cure, as the case
may be.
This section replaces sect. 17 of the Copyhold Act, 18S8. See
the Treatise, p. 40fi.
75. Where on an eDfranoluBement under this Act it AppUoattonof
50
The Copyhold Act, 1894.
enfranohise-
ment money
•where en-
francbisement
might have
been under
14 & 15 Viot.
0. 104.
Enfranchise-
ment money
may be paid
to official
truHtees of
charitable
f uiidn on
behalf of
charity.
appears to the Board of Agriculture that the enfran-
chisement might have heen effected under the Episcopal
and Capitular Estates Act, 1851, or any Act amending
the same —
(a) the consideration for the enfranchisement shall be
paid and applied in like manner as if an enfran-
chisement had been effected under the said Epis-
copal and Capitular Estates Act and the Acts
amending the same ; and
(b) the Church Estates Commissioners and Ecclesiastical
Commissioners respectively shall have the same
powers over the consideration money and the
interest thereon, and over any land, rentcharges,
or securities acquired in respect of the enfran-
chisement, and over or against any ecclesiastical
corporation interested therein respectively, as
they would have had if the enfranchisement
had been effected with the consent of the Church
Estates Commissioners under the said Acts :
Provided that where an ecclesiastical corporation or the
Ecclesiastical Commissioners have only a reversionary
interest in the manorial rights extinguished by the enfran-
chisement, the consideration, if it is a gross sum, shall be
paid into Court or to trustees, and applied under this Act
accordingly until the time when the reversionary interest
would if it were not extinguished have come into possession,
and the consideration money and the investments thereof
shall then be paid or tran^erred to the Church Estates
Commissioners as persons absolutely entitled thereto.
ThiB section re-enacts the provisions of sect. 5 of the Oopyhold
Act, 1858. See the Treatise, pp. 433, 434.
76. — (1.) Where a corporation, or any person, lord of a
manor held on a charitable trust within the provisions of
the Charitable Trusts Acts, 186*^ to 1891, is not authorised
to make an absolute sale otherwise than under those Acts,
or this Act, the compenpation or consideration payable to
the lord for an enfranchisement or for the redemption or
sale of a rentcharge under this Act may at the option of
the lord be paid to the Official Trustees of Charitable
Funds in trust for the charity.
(2.) Any principal money paid to the official trustees
under this section shall be applied by them under the order
of the Charity Commissioners for the like purposes as if it
Supplement to the Treatise. 51
had been paid into Court under this Act, and in the mean-
time the money shall be invested, and the income of the
investments applied, under the provisions of the said
Charitable Trusts Acts with respect to charitable funds
paid to the Official Trustees.
This section re-enacts the provisions of sect. 15 of the Copyhold
Act, 1858. See the Treatise, pp. 404, 405.
77, Any compensation or consideration money to be Enfranchise-
paid under this Act to the use of a corporation, lord of a f^^^^^^
manor other than a manor held for charitable purposes corporation
within the meaning of the Charitable Trusts A^it, 18o3, may he paid.
and the Charitable Trusts Amendment Act, 1855, maj at ^ trustees,
the option of the lord be paid to trustees appointed by the
Board of Agriculture for the purposes of this Act.
This section replaces sect. 16 of the Copyhold Act, 1858. See the
Treatise, p. 405.
78, Where any manor belonging to any of the XJniver- Provision for
sities of Oxford, Cambridge, and Durham, or efny college ^^\^^^^
thereio, or to either of the colleges of St. Mary at Win- manors be-
chester, near Winchester, or King Henry the Sixth at longrinirto
Eton, is held by any person on a lease for a life or lives, ^^^!^^g
or for a term of years granted by any such university or
college, that university or college and lessee shall jointly
constitute the lord of the manor within the meaning of
this Aet, and any rentcharc^e created under this Act on the
enfranchisement of land held of that manor shall be in
favour of, and the compensation for the enfranchisement
may be paid to, the person who at the date of the enfran-
chisement is entitled in possession to the profits of the
manor, his esecutors and administrators, but without pre-
judice to anv question as to the further disposal of any
money paid m respect of the rentcharge or other compen-
sation respectively. Provided that on the determination
of such lease as aforesaid any money so paid, or any
securities in which the same may have been invested, shall
be paid or applied as enfranchisement money is directed
to be paid and applied by section one of the Universities 21 & 22 Vict,
and College Estates Act, 1868. 0. 44.
This section re-enacts the provisions contained in sect. 46 of the
Copyhold Act, 1887, and hy the proviso incorporates therewith the
provisions of sect. 4 of the Universities and College Estates Act,
1860 (23 & 24 Yict. c. 69). See the Treatise, pp. 434—437.
79, The following provisions shall apply to every manor Proyiaions
e2
62 The Copyhold Act, 1894.
where de- {^ which the fines are certain, and in which it is the prao-
inte^ta are ^^ ^^^ oopyholderB in f ee to grant derivative interests to
entered on persons who are admitted as copyholders of the manor in
«>Ua- respect of those interests : —
(1.) In the application of this Act to any such manor
the tenant shall be the person who is admitted or
enrolled in respect of the inheritance, and that
person is in this section called the tenant-in-fee.
(2.) The enfranchisement of land to a tenant-in-fee
shall enure for the benefit of every person having
any customary estate or interest in the land at
the date of the enfranchisement, and every such
person shall become entitled to an estate or in-
terest in the land corresponding with his cus-
tomary estate or interest.
(3.) All rentchorges payable in respect of the enfran-
chisement, and all sums of money payable by a
tenant-in-fee for compensation or the expenses
of enfranchisement, and the interest thereon,
shall, if the parties do not otherwise agree, be
borne and paid by the several persons for whose
benefit the enfranchisement enures in proportion
to their respective interests in the enfranchised
land.
(4.) If a dispute arises respecting the apportionment of
any such charge or payment, the Board of
Agriculture may, on the application of any
person interested, after due mquiry, make an
order apportioning the same.
(5.)-
(a) On the request of the lord, or of one-
fourth in number of the copyholders for the time
being on the court roU of the manor, and on
such provision being made for expenses as the
Board require, the Board may make a local
inquiry for the purpose of ascertaining whether
the copyholders of the manor desire that an
enfranchisement be efFected throughout the
manor:
(b) If the Board find that not less than two-
thirds in number of the copyholders desire the
enfranchisement, they shall make an order
declaring that enfranchisement of all copyhold
Supplement to the Treatise, 68
tenements of the manor shall take place, and
they shall thereupon proceed to ascertain the
compensation payable to the lord on the enfran-
chisement of each tenement held by a tenant-
in-fee, and to effect the enfranchisement of that
tenement accordingly. The compensation in
every case shall consist of a gross sum of money,
unless the lord and tenant-in-fee otherwise
agree:
{c) When an order declaring enfranchisement
as aforesaid has been made —
(i.) all the tenants-in-fee shall contribute rate-
ably to the expenses of the inquiry according
to the amount of compensation payable by
them respectively ;
(ii.) the tenant-in-fee and all copyholders hold-
ing derivative interests in the same tenement
shall contribute rateably, according to the
value of their respective interests, to the
compensation, and to all expenses attending
the enfranchisement payable by the tenants,
including the contribution of the tenant-in-
fee to the expenses of the inquiry ;
(iii.) the Board may apportion the contributions
between the several tenants-in-fee, and also
between the several tenants of each tene-
ment, and may make orders for the pay-
ment of the contributions and expenses by
the persons from whom they are due ;
(iv.) the Board shall not without the consent of
the tenant-in-fee make an award for the
enfranchisement of any tenement, until they
have apportioned the contributions between
the tenant-in-fee and the tenants holding
derivative interests in the tenement, and
have made orders for payment of, or have
satisfied themselves that the tenant-in-fee
has full security for, the amounts which the
tenants of derivative interests are to con-
tribute :
(6.) Every order of apportionment made by the Board
shall be binding on all persons interested in the
apportionment, and the expenses of and incident
54
The Copyhold Act, 1894.
Applioaiion
of Act to
to the apportionment shall he paid by those
persons, or any of them, as the Board dii^t.
This section re-enaots the proyisions of sect. 47 of the Copyhold
Act, 1887. See the Treatise, pp. 420—423.
80, — (1.) The Board of Agriculture may by order
under their seal direct that a part of a manor specified in
pe o manor. ^^^ order shall be considered as a manor for the purpose
of effecting an enfranchisement under this Act, and all
the provisions of this Act shall apply accordingly.
(2.) An order shall not be made under this section for
the purposes of a yoluntary enfranchisement without the
consent of the lord in writing under his hand and seal.
This section incorporates and re-enacts the proyisions to a similar
effect whidi were contained in sect. 102 of the Copyhold Act, 1841,
and sect. 52 of the Copyhold Act, 1852.
xtostraint on
creation of
new copy-
holds.
Power to hold
customary
court thouffh
no copyholder
present.
Part VII. — Q-eneral Law of Copyholds.
81, — (1.) It shall not he lawful for the lord of any
manor to make grants of land not previously of oopyhold
tenure to any person to hold by copy of court roll, or by
any customary tenure, without the previous consent of the
Board of Agriculture.
(2.) The Board of Agriculture in giving or with-
holding their consent to a grant under this section shall
have regard to the same considerations as are to be taken
into account by them in giving or withholding their
consent to an inclosure of common lands.
(3.) When a grant has been lawfully made under this
section the land therein comprised shall cease to be of
copyhold tenure, and shall be vested in the grantee thereof
to hold for the interest granted as in free and common
socage.
This section re-enacts the provisions of sect. 6 of the Copyhold
Act, 1887. For a statement of the law as existing prior to the
passinf< of the Copyhold Act, 1887, see the Treatise, pp. 279 — 283;
and Bamaey v. Cruddaty (1893) 1 Q. B. 228 (C. A.).
82. — (1.) A customary court may be held for a manor —
(a) although there is no copyhold tenant of the manor ;
and
{b) although there is no copyhold tenant or only one
copyhold tenant present at the court ; and
(c) either by the lord or steward or deputy steward.
(2.) A court held under the authority of this section
Supplement to the Treatise, 65
Bhall be a good and suffioient oustomaiy court for all
purposes :
Provided as follows : —
(a) A proclamation made at the court shall not affect
the right or interest of any person not present at
the court unless notice of the proclamation is
duly served on him within one month after the
holding of the court : and
{h) This section shall not apply to a court held for the
purpose of receiving the consent of the homage
to a grant of common or waste land to hold by
copy of court roll.
This Bection, with the exception of the proviso contained in
clause {li\ of sub-sect. (2|, repeats the provisions of sect. 86 of the
Copyhola Act, 1841. The proviso in clause {h\ of sub-sect. (2)
re-enacts the provisions to the like effect contained in sect. 91 of
the Copyhold Act, 1841. See the Treatise, pp. 303—305.
83. Where a lord may grant land to hold by copy of Power to
court roll or by any customary tenure the grant may be ™*^^o 8™^**
made — and out of
la) out of the manor ; and oourt.
[h) without holding a court ; and
(r) either by the lord or steward or deputy steward :
Provided that where by the custom of a manor the lord
is authorised with the consent of the homage to grant any
common or waste lands to hold by copy of oourt roll, this
section shall not authorise the lord to make the grant
without the consent of the homage assembled at a cus-
tomary court.
This section appears to be intended to re-enact such of the pro-
visions to the like effect contained in sect. 87 of the Copyhold Act,
1841, as were not in effect repealed by the provisions of sect. 6 of
the Copyhold Act, 1887 (now replaced by sect. 81 of this Act). The
provisious of sect. 87 of the Act of 1841, however, applied to the
case of voluntary grants or re-grants of copyholds, which had
eschf'ated or been forfeited to the lord, and that section contained
a proviso to the effect that the lands so gianted or re-granted wt^re
to be granted only for such estate as the grantor had authority to
make. This proviso has not been re-enacted ; but it is believed
that notwithstanding the terms of the present section, the rules as
to the quantity and quality of the lord s estate and interest, when
making voluntary re-grants, stated on pp. 46 — 48 qI the Treatise,
stiU hold good.
84. — (1.) A valid admittance to land of copyhold or Maimer of
customary tenure may be made — m^dng ad-
/ \ i ij XT. J mittanoe.
(a) out of the manor ; and
I
56
The Copyhold Act, 1894.
Surrenders,
&o. out of
court to be
entered on
oonrtroUfl.
Power to
alienate
ancient tene-
ments in
portions with
licence of lord.
{b) without holding a court ; and
(c) without a presentment by the homage of the sur-
render, instrument, or fact in pursuance of which
the admittance is made ; and
{d) either by the lord or steward or depu^ steward.
(2.) Any person entitled to admittance may be admitted
by his attorney duly appointed whether orally or in
writing.
Sub-section (1) inoorporates and re-enacts the provisioiis of
sects. 88 and 90 of the Copyhold Act, 1841. See the Treatiae,
p. 65.
Sub-section (2) re-enacts the provisions of sect. (2) of the Copy-
hold Act, 1887. See the Treatise, p. 70.
85. — (1.) Every surrender and deed of surrender which
a lord is compellable to accept or accepts, and every will a
copy of which is delivered to him either at a court at which
there is not a homage assembled or out of court, and every
grant or admittance made in pursuance of this Act shall
be entered on the court rolls.
(2.) An entry made in pursuance of this section shall
be as valid for all purposes as an entry made in pursuance
of a presentment by the homage.
(3.) The steward shall be entitled to the same fees and
charges for an entry under this section as for an entiy
mad! in pursuance ol a presentment by the homage. ^
This section re-enacts the provisions of sect. 89 of the Copyhold
Act, 1841. See the Treatise, p. 65.
86. — (1.) A lord may, notwithstanding any custom to
the contrary, grant a licence to a tenant to alienate his
ancient tenement or any part thereof by devise, sale, ex-
change, or mortgage, and either together or in parcels.
(2.; On the c^enation under this section of a part of a
tenement, or of a tenement in parcels, the lord may appor-
tion the yearly customary rent payable for the whole tene-
ment.
(3.) A parcel alienated under this section shall be subject
to its apportioned part of the customary rent, and shall be
held of the lord of the manor in all respects and be con-
veyed in like manner as the original tenement.
(4.) A licence under this section must be in writing and
must be entered on the court rolls.
(5.) A steward may give a licence under this section if
authorised in writing by the lord, but not otherwise.
This section re-enacts the provisions of sect. 92 of the Copyhold
Supplement to the Treatise, 67
Act, 1841. As to the effect of alienating a tenement by parcels on
heriots, the fine, and the rents and services, see the Treatise, pp. 206,
209, and 211.
87. In an action for the partition of land of copyhold Partition of
or CTiatomarj tenure the like order may be made as may be JJJJ^^^
made with reepeot to land of freehold tenure.
This section replaces sect. 85 of the Copyhold Act, 1841. See the
Treatise, p. 118.
88. Section thirty of the GonveyanoiDg and Law of Descent of
Property Act, 1881, shall not apply to land of copyhold or *'"■* *°^
customary tenure vested in the tenant on the court rolls on ^^^f^
trust or by way of mortgage. oopyholds.
This section repeats the provisions of sect. 45 of the Copyhold
Act, 1887. See the Treatise, p. 101.
89. — (1.) Where an agreement for enfranchisement is Receipt for
made independently of tins Act, and the consideration for oonsideration
the enfranchisement is a gross sum and does not exceed 6()oT^fOT^«tt^
five hundred pounds, the lord may make a statutory franohisement
declaration stating the particulars of his estate and interest notnoder Act.
in the manor.
(2.) If the declaration shows that the lord is entitled to
make the enfranchisement, and to receive the consideration
money for his own use, an enfranchisement by the lord
shall be valid, and the lord's receipt for the consideration
money shall effectually discharge the person paying it
from being bound to see to tne application or being
answerable for any loss or misapplication thereof.
(3.) Where a lord receives as the consideration for an
enfranchisement within this section any money to which
he is not in fact entitled for his own use, he shall be
deemed to have received the money as trustee for the
persons who are entitled thereto.
This section re-enacts the provisions to the like effect which were
contained in sect. 26 of the Copyhold Act, 1887. The section of tiie
Act of 1887 was expressed to apply " in cases of enfranchisement
between the parties or otherwise without reference to the " Board
of Agriculture, " where the compensation money does not exceed
6002.^' See the Treatise, p. 402.
Part VIII. — ^Authority for Execution of Act.
90. The Board of Agriculture shall in every year make Board of
a general report of their proceedings in the execution of Agrioultuie
68
The Copyhold Act, 1894.
to make this Aot, and the report shall be laid before both Houses
anniial report. ^£ Pjuii^nient as soon as may be after it is made.
This section repeats the proyision to the same effect contained in
sect. 3 of the Copyhold Act, 1841. See sect. 12 of this Act for
an instance of an occasion on which the Board mnst state the
reasons for their action.
Delegation of
owers of
poi
Boi
ard.
Power of
entry for
purposes of
Act.
Penalty for
obstnioting
persoae ad-
ministering
Act.
91. — (1.) The Board of Agrioultnre may delegate to
any officer of the Board any of their powers under this
Act except the power to confirm agreements or awards, or
to frame forms, or to do any act required by this Aot to
be done under the seal of the Board.
(2.) The powers so delegated shall be exercised undeir
such regulations as the Board direct.
(3.) The Board may recall or alter any power deleffated
under this section, and may, notwithstanding the ddega-
tion, act as if no delegation had been made.
(4.) All acts done by an officer of the Board lawfully
authorised in pursuance of this section, shall be obeyed by
all persons as if they proceeded from the Board, and the
non-observance thereof shall be puniahabie in like manner.
This section re-enacts the provisions to the like effect contained
in sect. 10 of the Copyhold Act, 1841. See the Treatise, p. 442.
92. — (1.) A member or officer of the Board of Agri-
culture and a valuer or umpire appointed under this Act,
and their agents and servants respectively, may enter on
any land proposed to be dealt with under this Act, and
may make all necessary measurements, plans, and valua-
tions of the land.
(2.) A person before entering on land under this seotioQ
must give reasonable notice of his intention to the occupier
of the land.
(3.) If a person does any injury in the execution of the
powers of tlus section he shall make compensation therefor.
This section repeats the provisionp of sect. 6 of the Copyhold Act»
1852. See the Treatise, pp. 390, 391.
93. If any person obstructs or hinders a member or
officer of the Board of Agriculture or a valuer or umpire
acting under the powers of this Act, he shall be liable on
summary conviction to a fine not exceeding five pounds.
This section replaces sect. 61 of the Copyhold Act, 1862.
■Supplement to the Treatise. 69
Part IX. — ^Defixitioxs, Savings, and Bepeal.
94, In this Act unless the context otherwise requires : Interpreta-
The expressions ''admittance" and ^'enrolment" include ^^'
every licence of any assurance, and every ceremony,
act, and assent whereby the tenancy or holding of a
tenant is perfected, and the expressions ''admit and
"enrol" have corresponding meanings:
Similar definitions were contained in sect. 49 of the Copyhold Act,
1887.
The expression "ecclesiastical corporation" means an
ecclesiastical corporation within the meaning of the
Episcopal and Capitular Estates Act, 1851, and the
Acts amending the same.
This definition is taken from the provisions of sect. 19 of the
Copyhold Act, 1858. Seo the Treatise, p. 429, for the terms of the
Episcopal, &c. Estates Act. The Cathedral or House of Christ
Church, Oxford, is to be considered, for the purpose of enfranchise-
ment of its lands, as a College of the University of Oxford. See
21 & 22 Vict. c. 44, s. 31.
The expression "enfranchisement" includes the dis-
charge of freehold lands from heriots and other
manorial righta:
This definition is taken from sect. 102 of the Copyhold Act, 1841.
See, also, sect. 2 of this Act.
The expression " heriot " includes a money payment in
lieu of a heriot :
This definition is taken from sect. 102 of the Copyhold Act, 1841.
The expression " land " includes an undivided share in
land:
A similar definition was contained in sect. 15 of the Copyhold
Act, 1843, and sect. 52 of the Copyhold Act, 1852.
The expression. "lord" means a lord of a manor whether
seised for life or in tail or in fee simple and whether
having power to sell the manor or not, or the person
for the time being filling the character of or actiug as
lord whether lawfully entitled or not, and includes all
ecclesiastical lords seised in right of the church or
otherwise, and lords farmers holding under them, and
bodies corporate or collegiate :
This definition replaces the definition contained in sect. 102 of
the Copyhold Act, 1841, as enlarged by sect. 52 of the Copyhold
Act, 1852, and as confirmed by sect. 49 of the Copyhold Act, 1887.
60 Thk Copyhold Act, 1894.
The expression " manor ** includes a reputed manor :
This definition is taken from sect. 102 of the Copyhold Act,
1841. See sect. 80 of this Act for a further definition of tiie
expression.
The expression '^rent" includes reliefs and servioes
(not being services at the lord's court), and every
f)ajment or render in money, produce, kind, or
abour due or payable in respect of any land held of
or parcel of a manor :
This definition is taken from sect. 102 of the Oopyhold Act»
1841, and sect. 49 of the Copyhold Act, 1887.
The expression '' steward" includes a deputy steward
and a clerk of a manor and any person for the time
being filling the character of or acting as steward
whether lawfully entitled or not :
This definition is taken from sect. 102 of the Copyhold Act,
1841, and sect. 52 of the Copyhold Act, 1852.
The expression " tenant " —
{a) includes all persons holding by copy of court roll
or as customary tenants or holding land subject
to any manorial right or incident, and whether
the land is held to them and their heirs or to
two or more in succession or for life or lives or
years, and whether the land is held of a manor
or not : and
This portion of the definition is taken from sect. 102 of the
Copyhold Act, 1841, the words " and whether the Icuid is held of a
manor or not " being added.
(b) includes 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 the land ;
and
This portion of the definition is taken from sect. 43 of the
Copyhold Act, 1852. See sect. 1 of this Act, where it is provided
that the power of enfranchising compulsorily cannot be exercised
by a mortgagee who is not in possession, although he may have
been admitted in respect of the mortgage.
(c) where land is held in undivided shares, means the
person for the time being in receipt of at least
two-thirds of the value of the rents and profits
of the land.
This portion of the definition is taken from sect. 38 of the
Copyhold Act, 1858.
Supplement to the Treatise. 61
The expression ^* valuer " includes an umpire.
Tlus definition is taken from sect. 52 of the Copyhold Act, 1852.
95. Nothing in this Act — General
(a) shall affect the custom of gavelkind in the county of «▼»»»■•
, Kent: or
A similar provision was contained in sect. 80 of the Copyhold
Act, 1841, and in sect. 34 of the Copyhold Act, 1852. Sect. 21 of
this Act also contains a provision to the same effect.
{b) shall authorise a lord to enclose any common or
waste land : or
A similar provision was contained in sect. 82 of the Copyhold
Act, 1841.
{c) shall revive any right to fines or other manorial
claims which are at any time barred by any
statute of limitations : or
This provision was contained in sect. 83 of the Copyhold Act,
1841.
{d) shall interfere with any enfranchisement which may
be made independently of this Act : or
Sect. 83 of the Copyhold Act, 1841, and sect. 55 of the Copyhold
Act, 1852, containea a similar provision.
{e) shall interfere with the exerdse of any powers
contained in any other Act of Parliament : or
This provision was contained in sect. 55 of the Copyhold Act,
1852.
(/) shall, except as in this Act expressly provided,
apply to manors or land vested in her Majesty
in right of the Crown or of the Duchy of
Lancaster: or
This sab-section re-enacts the provisions of sect. 98 of the
Copyhold Act, 1841.
--except as in this Act expressly provided.— See sects. 68, 69,
70 j and 71 hereof.
{g) shall extend to or prejudice the estate, right, title,
privilege, or authority of her Majesty in right of
the Duchy of Comwc^, or the possessions thereof,
or of the Duke of Cornwall for the time being :
or
This sub-section replaces sect. 99 of the Copyhold Act, 1841.
(A) shall extend to manors belonging either in posses-
sion or reversion to any ecNuesiastioal corporation
82 The Copyhold Act, 1894.
or to the Ecclesicu^tical CommissioneTS where the
tenant has not a right of renewal.
This 8ub-Rection re-enacts the provisions of sect. 4 of the Copy-
hold Act, 1858. See the Treatise, pp. 368 and 376.
SavingB an to 98^ The provisions of this Aot with respect to a com-
e^anohiise- P^'»rj enfranchisement shall not apply —
ment. {a) to any copyhold land held for a life or lives or for
years where the tenant has not a right of re-
newal: nor
A similar provision was contained in sect. 48 of the Copyhold
Act, 1852. See the Treatise, pp. 368, 380.
{b) to manors in which her Majesty has any estate or
interest in possession, reversion, or remainder.
A provision to this effect was contained in sect. 46 of the Copy-
hold Act, 1858.
SaTnng as to 97^ Nothinff in this Act shall aflPect any right acquired
26°& 2?Vwt. ^ pursuance or registration under the Land Registry Act,
c. 53. 1862, or the Land Transfer Act, 1875, except to such
38 & 39 Vict, extent as may he recorded by registration in pursuance of
those Acts.
This section is new, no similar provision having been contained
in any of the Copyhold Acts, 1841 to 1887.
By sect. 3 of the Land Registry Act, 1862, it was provided, that
'* the reffistry shall be confined to estates of freehold tenure, and
leasehold estates in freehold lands " ; and by sect. 2 of the Land
Transfer Act, 1 875, it is enacted that '* land shall not be registered
under this Act unless it is of freehold tenure, or is leasdiold held
under a lease which is either immediately or mediately derived out
of land of freehold tenure.'' As to the exclusion of copyholds from
the provisions of the Land Transfer Act, 1897, see sects. 1 (4) and
24 thereof.
Application 98. — (1.) The provisions of this Act relating to —
rfActto ^^j ^jjQ grant of easements to a lord of a manor for
mining purposes ;
(b) the holding of customary courts although a copy-
hold tenant is not present ;
{c) The making of grants or admittances out of the
manor and out of court ;
(d) the making of admittances without a presentment
by the homage ;
{e) the entry of surrenders and wills on the court rolls ;
and
(/) the partition of lands of copyhold or oustomaiy
tenure^
Suppfement to the Treatise. 63
fihall extend to manors and lands vested in her Majesty in
right of the Crown or of the Duchy of Lancaster.
This sab-section re-enaots the proyisions of sect. 97 of the Copy-
hold Act, 1841. As to the grant of easements for xniaing purposes,
see sect. 24 of the Act : as to the holding of customary courts with-
out a cop> hold tenant, see sect. 82 : as to the making of grants or
admittances out of the manor, and out of court, see sect. 83 : as to
the making of admittances without presentment, see sect. 84 : as to
the entry of surrenders, &c., see sect. 85 : and as to partition, see
sect. 87.
(2.) The said provision relating to the grant of ease-
ments shall extend to an enfranchisement of land held of
a manor vested in her Majesty e£Fected under the pro-
visions of any existing Act of Parliament.
This sub-section appears to be intended to re-enact a somewhat
similar provision contfiined in sect. 97 of the Copyhold Act, 1841.
99. This Act shall not extend to Scotland or Ireland. Extent of Act.
100. The enactments described in the Third Schedule to Repeal,
this Act are hereby repealed to the extent appearing in
the third column of the said schedule.
Provided that all awards, deeds, orders, certificates,
scales, instruments, charges, and rentcharges made, exe-
cuted, granted, created, or haviuc^ effect under any enact-
ment repealed by this Act shall have e£Fect as if this Act
had not passed.
lOL This Act may be dted as the Copyhold Act, 1894. Short title.
SCHEDULES.
FIEST SCHEDULE.
FORMS.
1. Declaration to be made by Valuers and TTmpires. Sect. 5.
T, A.B.J declare that I will ftdthfully, to the best of my
ability, value, hear, and determine the matters referred to me
imder the Copyhold Act, 1894.
A.B.
Hade and subscribed in the presence of this day
of 189 .
ThiA form follows the form piovided in sect. 2S of the Copjhold Aot, 1S52.
64 The Copyhold Act, 1894.
Sect. 41. 2. Oebtifioatb of Ghabob.
The Board of Agriculture hereby certify that the land
mentioned in the schedule to this certificate is charged with
the payment UiA.B., his executors, administrators, or assiens,
[or to the lord of the manor of for the time being] of
the following series of periodical payments; that is to say,
the sum of pounds payable on the day of ,
the further sum of pounds payable on the day of
&c. [or with the principal sum of pounds with interest
thereon after the rate of per cent, per annum, the
firincipal to be repayable in manner following, that is to say
state the terms'] J ; and the Board further certify that after
fiayment of the series of periodical payments above mentioned
or after payment of the principal money hereby chareed and
all arrears of interest due thereon] this certificate shall be
void. In witness whereof the Board of Agriculture have
hereunto set their official seal this day of 189 •
The Schedule.
KR
G.H.
Thii form is taken from the fonn provided in sect. 86 of tlie Ccmjhold
Aot, 1858 ; but in the form provided by the Act of 1858 the Boara certi-
fied whether the charge was made in respect of consideration money or of
ezpenBoB*
Sect. 41. 8. Tkaksfeb of Cebtifigatb op Grabgb.
I, ^.^., of hereby transfer the within certificate of
charge to CD. of
Dated this day of 189 .
A.B.
This form was provided by sect. 87 of the Copyhold Act, 1858.
Sect. 42. 4. NoTiOB of Eight to Enfrakchisb.
Take notice that if you desire that the copyhold land which
you hold of this manor of shall become freehold you are
entitled to enfranchise the same on paying the lord's compen-
sation and the steward's fees. The lord's compensation may
be fixed either by agreement between the lord and you, or by
a valuer appointed by the lord and you or through tiie agency
of the Boud of Agriculture, to whom you may make applica-
tion, if you think fit, to effect the enfranchisement.
This form was proyided by sect. 1 of the CSopyhold Act, 1887.
57 & 58 Vict. c. 46.
66
5. PowxB OF ArroBRSY.
Manor of in the county of •
If A.B.f of , hereby appoint CZ)., of to be my
lawful attorney to act for me in all respects as if I myself
were present and acting in the execution of the Copyhold Act,
1894.
Dated this day of 189 .
(Signed) A,B.
TbiB f onn is taken from the f ozm provided hj sect. 39 of the Copyhold
Aoty 1868.
Sect. 48.
SECOND SCHEDULE.
Sgalb op Stewabd's Compensatiok.
When the consideration for the enfranchisement —
Sect. 9.
£
8.
d.
Does not exceed 1/. ....
0
0
1
5
10
0
0
Exceeds 1/. but does not e^<^Ad 57.
0
II 5^.
, 10/
0
II 10/. „ ,
, 15/.....
2
0
0
II 15^. II
, 20/.....
8
0
0
„ 20/. „ ,
, 25/.....
4
0
0
„ 25/. „ ,
, 50/.....
6
0
0
„ 50/. „ ,
, 100/.....
7
0
0
For eveiy additional 50/.,
or fractional
part
of 50/.^ over and above the first 100/. 0 10 0
The compensation to be exdusive of stamps and paper or
parchment or map or plan which are to be paid for by the
tenant.
This aoale was provided in a Sohednle to the Copyhold Aot, 1887.
THIRD SCHEDULE.
Enactments Bepealed.
Sesikm and Chapter.
4 & 6 Vict. 0. 35 .
6 & 7 Vict. o. 23 .
7 & 8 Vict. o. 66 .
16&16yiot.c.61.
21&22yiot.o.94.
23&24yiot.o.69.
60&6lViot.o. 73.
B.
Short Title.
The Copyhold Act, 1841
The Copyhold Act, 1848
The Copyhold Act, 1844
The Copyhold Act, 1862
The Copyhold Act, 1868
The 'OniYersitiee and CoUege
Estates Act Extension Act,
1860.
The Copyhold Act, 1887
Extent of Repeal.
The whole Act.
The whole Act.
The whole Act.
The whole Act.
The whole Act.
Section f onr.
The whole Act.
i
Sect. 100.
( 67 )
ADDENDA
TO TEM
Tbeatisb ok the Law of Copyholds Aim Oubtoicabt Tenitbes
OF Laitd : 2nd Edit. 1898.
Page 7, lines 22, 23. The Act 3 & 4 WilL IV. c. 74 may now be cited
as the f^ines and Beooyeries Act, 1833 (Short Titles Act, 1896).
Page 13, note($). The Copyhold Acts were repealed, and are now
replaced by the Copyhold Act, 1894 (57 & 68 Vict. c. 46).
Page 16, line 3, and note {d). Sect. 6 of the Copyhold Act, 1887, is now
replaced by sect. 81 of the Copyhold Act, 1894.
Page 19, lines 15, 16. The Act 2 & 3 Will. lY. c. 71 may now be cited
as ue Prescription Act, 1832.
Page 21, line 14. The Act 8 & 9 Yict. c. 106 may now be dted as the
Beal Property Act, 1845.
Page 27, lines 4, 5, 20. The Act 3 & 4 Will. IV. c. 74 may now be cited
as Sie Fines and Beooyeries Act, 1833.
Page 33, line 20. The case of Doe y. 8coU (4 B. & C. 706) may be cited
as an autliority for the statement that there was no *' general occupancy "
in oopyholds.
Page 36, line 15. A steward cannot grant a licence to demise merely
by yirtue of his office, a special custom within the manor, or an authority
from the lord, being necessary. Scroggs, Courts, 61 ; and see Doe d. Leach
y. Whitaker, 5 B. & Ad. 409, 436.
Page 41, line 9. The cases of Roe y. Summerset (2 W. Bl. 692), Swift y.
Davis (8 East, 354 n.). Doe y. 5oo« (4 B. & C. 706), and Phillips y. Ball
(6 C. B. N. S. 811), may be cited as instances in wmch customs of barring
liyes were regarded as being reasonable.
Page 43. In the manor of Wellington, Somersetshire, the tenant's right
of renewal is expressed thus in the words of the custom : ** No man shall
buy over oiu: heads." (Soms. Archseol. Soc. Proceed., 1892, Vol. XVin.
p. 270.)
Page 45, Hne 2. The following extracts from the parliamentary survey of
the manor of Penkneth in 1650, shows the nature of the estate held by the
customary or conventionary tenants of manors forming parcel of the Duchy
of Cornwall. The customs of the manor of Penkneth were stated to be
as follows : —
**1. There is usually kept from seven years to seven- years an asses-
gionable court for uie said manor as for others the manors of the
Dukedom of Cornwall, known by the name of the Ancient Duchy;
f2
68 SUPPLEMBNT.
also two law-courts every year; and a oonrt-baron every three
weeks, where, in any cause amongst the tenants, ought not to sue
one the other out of the said courts of the manor.
'* 2. The customary tenants of the said manor hold to them and their
heirs for ever, from seven years to seven years, according to the
custom of the manor, paying and doing their usual rents, duties,
and services accustomed for the same.
*' 3. If a customary tenant in possession of a customary tenement die,
the widow of me said tenant hath the same during her life by the
custom of the manor, and so is admitted to take the same. But
she cannot surrender the said tenement in her widow's estate or
second marriage, but only to the next heir of her deceased husband
(if he be male) ; and in case that females be heirs, it oometh to
the eldest of them, and is not divided by coparcenary : the use of
taking hath time out of mind run in this manor.
** 5. No tenant can let his tenement for any longer time than for
seven years to seven years, for he that is present tenant must, at
the assession, be in present possession of that tenement which he
taketh.
'* 6. The said customary tenant, not having any other estate of freehold
without the said manor, cemnot be returned in juries at the assizes
or sessions, nor be called either without or within the manor before
the derk of the market or Judge of the Admiralty. . . ."
Page 47, line 10. A lord bavins; only a limited estate or interest in the
manor cannot grant licences to the tenants to make leases which shall
last longer than his estate or interest, unless he does so under a power
springing from the fee in the manor, or under the provisions of an Act of
Parliament ; and, accordingly, a lease made under the licence of a lord
who is only a limited owner will determine with tiie lord's interest. Petty
V. Evans f 2 Brownl. 40 ; 8, (7., sub worn., Pettis v. Dehbana, 6 Vin. Abr.
161 ; Gilbert, Tenures, 299.
Page 49. The provisions of sect. 87 of the Copyhold Act, 1841, are now
replaced by sect. 83 of the Copyhold Act, 1894. The power of making
grants out of the manor and out of court may be exercised idso in the
case of manors or lands vested in her Majesty in right of the Crown or of
the Duchy of Lancaster. Copyhold Act, 1894, s. 98, sub-s. (1) (o).
Page 51, line 3. By the customs of various manors the lords were
formerly restrained from granting licences to their tenants to alienate
their tenements otherwise than by entireties ; but sect. 92 of the Copyhold
Act, 1841, empowered lords to grant licences to their tenants to ahenate
any ancient customary tenement, or any part thereof, by devise, sale,
exchange or mortgage; and the same section of the Act of 1841 also
empowered the lord by a writing under his hand, which was to be entered
on the court roUs of the manor, to grant authority to the steward to give
such licences. These provisions are re-enacted by sect. 86 of the Copy-
hold Act, 1894.
Page 62, note (a). The provisions of the Copyhold Act, 1887, aa to
admittance by attorney, are now contained in sect. 84 (2) of the Copyhold
Act, 1894.
Page 65, lines 17—28, and notes {x) and {y). The provisions of the
Copyhold Act, 1841, s. 89, requiring surrenders and other assuianoee
ADDBNDA TO THE TBBATISE. 69
made or accepted out of court to be entered on the court rolls, and
declaring that entries made on the court rolls in pursuance of the pro-
visions of the Act should be as valid for all purposes as entries made in
pursuance of a presentment by the homage, are now contained in sect. 85
of the Copyhold Act, 1894 ; and sect. 84, sub-s. (1) (c), of the Act of 1894
replaces sect. 90 of the Act of 1841 in providing that a valid admittance
to land of copyhold or customary tenure may be made without a present-
ment by the homage of the surrender, instrument, or fact in pursuance
of which the admittance was made. The provisions of the Act of 1894
relating to the making of admittances without a presentment by the
homage, and the entry of surrenders and wills on the court rolls, extend
to manors and lands vested in her Maiesty in right of the Crown or of
the Duchy of Lancaster. Copyhold Act, 1894, s. 98, sub-s. (1) (d) and (e).
Page 66, note (z). For the reference to the Copyhold Act, 1841, substi-
tute a reference to the Copyhold Act, 1894, s. 83 ; and for the reference
to the Copyhold Act, 1887, substitute a reference to the Act of 1894, s. 81,
and see also the Law of Commons Amendment Act, 1893 (56 & 57 Vict.
c. 57).
Ibid. Voluntary conveyances. It is to be noted with respect to volun-
tary conveyances that the Voluntary Conveyances Act, 1893 (56 & 67
Vict. c. 21), provided, with a saving as to transactions completed before
the passing of the Act on the 29th of June, 1893, that no voluntary
conveyance, whether made before or after the passing of the Act, if in
fact made bond fide and without any fraudulent intent, should thereafter
be deemed fraudulent or covinous within the meaning of the Act 27 Eliz.
c. 4, by reason of any subsequent purchase for value, or be defeated
under any of the pi-ovisions of the said Act by a conveyance made upon
any such purchase, any rule of law notwithstanding.
Pages 68, 69. With respect to implied admittance, it should be noted
that the subject is mentioned again at pp. 150, 151 of the Treatise in
connection with the admittance of customary heirs. Li addition to the
remarks on pp. 150, 151 of the Treatise, it may be pointed out that in
the case of The Ecclesiastical Commissioners for England v. Parr^ (1894)
2 Q. B. 420, it was held by the Court of Appeal that the acceptance of
quit-rents in respect of copyholds by the lord of a manor, or his steward,
from a })erson paying them as heir or surrenderee amounts to, or implies,
an admittance of the person as tenant of the copyholds, if the lord or
steward knows that the quit-rents are paid by him as heir or surrenderee.
With respect to the manner of making admittance, it may be mentioned
that the Copyhold Act, 1894, repeating the provisions contained in the
Copyhold Act, 1841, enacts, in sect. 84, sub-sect. (1), that a valid ad-
mittance to land of copyhold or customary tenure may be made out of
the manor, and without holding a Court, and without a presentment by
the homage of the surrender, instrument, or fact, in piursuance of whicn
the admittance is made, and either by the lord or his steward or deputy-
steward. These provisions as to the making of admittances out of the
manor and out of Court, and without a presentment by the homage,
extend to manors and lands vested in her Majesty in right of the Crown,
or of the Duchy of Lancaster. Copyhold Act, 1894, s. 98, sub-s. (1) (c)
and (d).
Page 70. Tenant on admittance to receive notice. Notes (c) and (d).
For ^e references to the Copyhold Act, 1887, substitute references to tho
70 SUPBLBMBNT.
Oopyhold Act, 1894, s. 42. A form of the notioe is giyen in Fozm 4 of
the First Schedule to the Act of 1894.
Page 70. Admittance by attorney. Sect. 84, sub-sect. (2), of the Copy-
hold Act, 1894, repeats ^e provisions of the Copyhold Act, 1887, as to
admittance by attorney.
Pag^ 71, note (t). The authority for the statement that the appointment
may now be made orally is 57 & 58 Yict. c. 46 (Copyhold Act, 1894),
s. 84 (2).
Page 79. Mortgage. Sect 2 of the Trustee Extension Act, 1852, was
repealed by the Trustee Act, 1893. The vesting order mentioned on this
page of the Treatise will now be made under sect. 26 (vi.) of the Trustee
Act, 1893. For the reference in note (r), substitute the reference 56 & 57
Yict. c 53, s. 26.
Page 89. With respect to powers of appointment, it may be mentioned
that if a copyholder by his will gives to anyone a power of appointing
the land to a purchaser, the person in whose favour the appointment is
made is the person to be admitted, and he takes the land as if it had been
devised to him directly by the will. Beal y. Shepherd, C^. Jao. 199.
Page 93. Estate of married woman. A declaration of trust of a oopy-
hold by a married woman, who is tenant on the rolls of the manor, by a
deed acknowled^red under the Fines and Recoveries Act, 1833, is a dis-
position within tne meaning of sect. 77 of that Act, and it will e^ectually
Dind the oopyhold as against the customary heir. ( Carter y. Carter ^ ( 1896)
1 Ch. 62.) it seems that such a declaration as that mentioned will not &]i
within the proviso to sect. 77, for the object of the declaration will, in
general, be to effect a disposition of the equitable interest without dis-
turbing the legal title, and that object could not be effected by a surrender
of that interest into the hands of the lord of the manor. {Carter y. Carter,
eupra, pp. 69, 70.)
Pa^^es 96—100. The sections of the Trustee Acts of 1850 and 1852
which are cited in these ]pages were repealed by the Trustee Act, 1893,
but their provisions are, m effect, re-enacted by that Act, and will now
be f oimd, for the most part, in sects. 26 — 34 thereof.
Page 96, note((). Insert 56 & 61 Yict. c. 53.
Ibid., note(e). Insert 56 & 57 Yict. c. 53, ss. 26, 28.
Ibid., note (/). Insert 56 & 57 Yict. c. 53, ss. 22, 29.
Page 97, notes (e), (/), and (<jr). Insert 56 & 57 Yict. c. 53, 8. 26.
Ibid., note (A). Insert 56 & 57 Yict. c. 53, s. 27.
Ibid., note (i). Insert 56 & 57 Yict. c. 53, s. 26.
Ibid., note {k). Insert 56 & 57 Yict. c. 53, 0. 29.
Page 98, note (1). Insert 56 & 57 Yict. c. 53, ss. 25, 26, 32.
Ibid., note (m). Insert 56 & 57 Yict. c. 53, s. 33.
Ibid. Effect of vesting order. The 28th section of the Trustee Act, IMO,
is now replaced by seot. 34 of the Trustee Act, 1893.
ADDENBA TO THB TREATISE. 7^
Page lOOt iiotee («) and {t). The leferenoee will now be 66 & 67 Yici
0. 63, 8B. 30 and 31 respeotiyely.
Ibid., note (u). The reference will now be 66 & 67 Yict. c. 63, 80. 26,
26, and 32.
Ibid., Hne 22. Bead : sect. 34 of the TroBtee Act, 1893.
Ibid., lines 24, 25, and note ($b). The sections of the Conveyancing and
Law of Pronerty Act, 1881, inferred to were repealed by the Trustee Act,
1893, but tneir provisions were re-enacted in sect. 12 thereof.
Page 101, note (y). The provisions of sect. 13 of 16 & 16 Yict. c. 65 do
not appear to have been expressly repealed by, or repeated in, the Trustee
Act, 1893.
Ibid., lines 26, 26. Sect. 46 of the Copyhold Act, 1887, is now replaced
by sect. 88 of the Copyhold Act, 1894.
Page 103, lines 20, 21. The Friendly Societies Act, 1876, is now replaced
by the Friendly Societies Act, 1896. The reference in note (n) will now
be 69 & 60 Yict. c. 26, s. 48.
Ibid., lines 21, 22. The Industrial, &c. Societies Act, 1876, is now
replaced by the Industrial and Provident Societies Act, 1893; and the
reference in note (o) will now be : 66 & 67 Yict. c. 39, ss. 37 and 43 (2).
Page 104, note (j). To the reference given, add Boston v. Fenny, 67 L. T.
290 : 41 W. B. 72.
Page 111. Sect. 30 of the Trustee Act, 1860, is now replaced by sect. 31
of the Trustee Act, 1893.
Page 118. The provisions of the Copyhold Act, 1841, as to the partition
of copyholds are now contained in sect. 87 of the Copyhold Act, 1894, and
they extend to manors and lands vested in her Id^jesty in right of the
Crown or of the Duchy of Lancaster. Copyhold Act, 1894, s. 98 (1) (f).
Ibid., note {y). The first reference will now be 66 & 67 Yict. c. 63, s. 31.
Page 161. The subject of implied admittance has already been mentioned
in this supplement. Ante, p. 69. Beference may be made to the case
of The Ecdeaioitical CommiafionerB for England v. Parr ( (1894) 2 Q. B.
420), as confirming the view in regard to the acceptance of rent constituting
an admittance by implication.
Ibid., note (a;). The reference is now 67 & 68 Yict. c. 46, ss. 84, 86.
Page 153, Hnes 8 — 10. The statement that proceedings for seizure
qwmsque should be taken within a reasonable time after the death of the
last tenant, because the lord's right of entering upon and seisdng the lands
appeared to be an *< entry or distress " within the meaning of uie statute,
does not now, in view of the judgments delivered in the Court of Appeal
in the case of The Ecdeeiaeiical Commissioners for England v. Parr,
accurately summarize the law on this point. The statement in the text
was founded on an opinion expressed by Mr. Justice Kay, in the case of
In re Lidiard and Jackson^s and Broadley's Contract (42 Ch. Div. 264) ;
but in the case of 7 he Ecclesiastical Commissioners for England v. Parr,
above mentioned, the same learned judge stated that, on reconsidering
the matter, he had come to a different conclusion. From the judgments
deHveced in the last-mentioned case, it cendusively appears thiat the
Statutes of Tiimitatiim apply to prooeediiigs for a eeuRire fuousque by the
72 SUPPLEMENT.
lord, bnt that the period fixed by these statutes begins to run only from
the time at which, after the necessary proclamations have been made and
the necessary statutorjr notice (see Copyhold Act, 1894, s. 82, sub-s. 2 (a) )
has been given, the heir has failed to take admittance.
Page 164, note (6). The reference will now be 57 & 58 Yict c 46,
B. 82, sub-s. 2 (a).
Page 166, note {d). The reference will now be 57 & 58 Yict. c. 46, a. 42.
Page 168, lines 23 — 25. The provisions of the Gopyhold Act, 1841, as to
the commutation of certain of llie copyhold services and incidents, are not
repeated in the Gopyhold Act, 1894. The effect of enfranchisement,
whether voluntary or compulsory, is to change the tenure from copyhold
into freehold. Gopyhold Act, 1894, s. 21.
Page 198, lines 25—27. The explanation here given of heriot-servioe is
confirmed by the judgments of Iiord Esher, M. E., and Bigby, L. J., in
the Court of Appeal in the case of Western v. Bailey, (1897) 1 Q. B. 86.
In the Court below, Wills, J., had held that heriot-service might be an
incident of copyholds as well as of freeholds {Western v. Bailey, (1896) 2
Q. B. 2d4J ; but in the Court of Appeal the judges above referred to
dissented tram tiiat view, and held that the heriot, which was found to be
due in that case, was due by virtue of the custom of the manor.
Page 203. Bemedies for heriot custom. In the case of Western y.
Bailey, (1897) 1 Q. B. 86, the Court of Appeal held that a lord who is
entitled to a heriot by virtue of a custom within his manor maj seiae a
beast or chattel belonging to the tenant as the heriot, though it never
had been within, or in any way connected with, the manor.
Page 204, line 11. The words ** or owner" must now be struck out, as
the Copyhold Act, 1894, does not re-enact the provisions of the Copyhold
Act, 1887, whereby an *' owner" of land, as therein defined, was
empowered to compel the extinguishment of a heriot or other manorial
incident.
Ibid.| note (h). The reference wiU now be 57 & 58 Yict. c 46, s. 2.
Page 211, lines 4 and 5. The Copyhold Acts of 1852, 1858, and 1887, are
now replaced by the Copyhold Act, 1894, which, however, does not con-
tain the provisions of the Act of 1887 enabling an " owner " of land, as
tiierein ddBjied, to compel the extinguishment of the relief to which the
land is liable.
Ibid., note (n). The reference will now be 57 & 58 Yict. c. 46, s. 2.
Page 212, note (u). Add to the authorities cited, HowiU y. Earl of
Harrington, (1893) 2 Ch. 497.
Page 212| line 10. Delete the words *'or owner." In note (a) the
reference will now be 57 & 58 Yict. c. 46, s. 2.
Page 219. It may be noted that the Copyhold Act, 1894, provides that
no enfranchisement under the Act, nor any provision in the Act, is to
revive any right to fines or other manorial claims which are at any time
haired by any Statute of Limitations. Act of 1894, s. 95 (c). It has been
held that the Statutes of Limitations do not run as agamst a loid of a
manor so as to deprive him of his quit rents, or to make the copyhold
hereditaments freehold, until after the three umal proclamations, or saoh
ADDENDA TO THB TBEATI8E. 73
a neglect of the oopjliold tenant to oome in after an express notice, as
amounts in fact to a refusal. BeighUm y. Beighton, 43 W. B. 658.
Page 220, note ((). The reference will now be 67 & 58 Yict. c. 46,
s. 82.
Page 222, note (m). The provisions of the Trustee Act, 1850, here
referred to, are now replaced by sects. 26, 29 and 32 of the Trustee Act,
1893.
Page 223, Enfranchisement, and note (t). The provisions of the (Dopy-
hold Act, 1887, are now contained in sect. 6, sub-s. (1), of the Oopyhold
Act, 1894.
Page 226, line 3, and note (k)^. The provisions of the Trustee Act, 1850,
here referred to are now contamed in sect. 48 of the Trustee Act, 1893.
Page 238, note (;)• The reference will now be 57 & 58 Yict. c. 46,
8. 23 (1).
Pages 243, 244, notes (a), (b) and (c). The Merchant Shipping Acts are
now consolidated by the Merchant Shipping Act, 1894, sects. 524 — 526 of
which deal with the rights of lords of manors to wreck.
Page 246, line 2. Under the terms of the Local Government Act, 1894
(56 & 57 Yict. c. 73, s. 27), the representation is to be made to the Home
Secretary by tiie district council of the district within which the fair is
held.
Page 269, note (t). To the authorities cited add Baring v. Abingdon,
(1892) 2 Ch. 374.
Page 276, line 21. Under the provisions of the Law of Commons
Amendment Act, 1893 (56 & 57 Yict. c. 57), no indosure or approvement
of any part of a common, purporting to be made under the Statute of
Merton and the Statute of Westminster the Second, or under either of
these statutes, is to be valid, unless it is rniEtde with the consent of the
Board of Amculture, who, in ^ving or withholding their consent, are to
have regard to the same conditions, and are to hold the same inquiries, if
necessary, as are directed by the Commons Act, 1876, to be taken into
consideration and held by the Board, when they are forming an opinion
whether an application under the Lidosure Acts, 1845 to 1882, slmll be
acceded to or not.
Page 276. The power of the lord of the manor to approve part of the
waste is now subject to the provisions of the Law of Commons Amendment
Act, 1893, hereinbefore mentioned.
Pages 279, 280. The provisions of the Copyhold Act, 1887, preventing
grants of the waste by the lord, with consent of the homage or by
custom, to be held as copyholds, will now be found in sect. 81 of the
Copyhold Act, 1894.
It may be noted that the provisions of the Copyhold Act, 1894, enabling
a lord to enfranchise the copyholds of his manor and the freeholds held
of him, do not authorise him to inclose any common or waste land. Act
of 1894, s. 95.
Page 280. In the case of Bamsey v. Cruddas, (1893) 1 Q. B. 228, it was
held that a custom in a manor for the lord, with the consent of the
homage, to make grants of portions of the waste to be held by copy of
74 aUFFLEMBNT.
court roll, was a gjood onstom, although a saffidenoy of common was not
left after the making of any grant.
Pag^ 302, line 3. An owner of a court leet may be entitled by custom
or prescription to have an annual payment made to him on the leet day
by the inhabitants within the jurisdiction of his Court. This annnal
payment is in some cases called cert money, cerium letas, capitagiwn, and
leet silver, and in other places it is known as the common fine or head
money. See BullerCs Case, 6 Bep. 77 b. But the lord cannot distrain
for this payment, because it is agaiust common right, unless he can
prove a prescriptive right to enforce the payment by distress. God/retf^s
Case, 11 Bep. 42 a, 44 b.
Pag^ 302, line 14. A steward of a court-leet cannot impose a fine upon
a person who is not present at the Court, but may have him amerced ;
and the amercement must be affeered, or assessed at a moderate sum, by
** the lawful men of the vicinage." Fletcher v. Inborn, 5 Mod. 127, 130.
An amercement imposed at a court-leet and duly affeered, may be re-
covered either by an action of debt or by distress, and it is not necessary
to prove a prescriptive right to distrain in such a case ; but it is otherwise
in the case of an amercement in a court-baron. Jenyx v. Applefcmrthj
1 Brownl. 182, 183. A fine imposed in a court-leet or in a court-baron
may be recovered by an action of debt. Liticoln {Earl of) v. Fyeter^
Cro. Eliz. 581 ; but see Co. Litt. 295 a. ; and Att.-Ghn. v. W%ite, Comyn's
Bep. 433, 435, as to a difference, formerly, in the cases of the imposi-
tion of a fine in these courts where the person died before the fine was
recovered.
Page 304, note (x). The reference will now be 57 & 58 Yict. o. 46, 8. 82.
Page 306, note (e). The reference will now be 57 & 58 Yiot. c. 46,
ss. 82, 83. These provisions extend to manors and lands vested in her
Majesty in right oi the Crown or of the Duchy of Lancaster.
Ibid., note (/). The reference will now be 57 & 58 Yict. c. 46, s. 81.
Page 307, note {p). Add, RatMey y. Cruddaa, (1893) 1 Q. B. 228.
Page 308. As to whether jurors must be unanimous, the case of Bamsof
y. OruddaSy eupra^ is an authority to the effect that the finiling of a
majority of the homage will bind the other tenants and commoners.
Page 310* The raterpretation of the word '* steward" as used in the
Copyhold Act, 1894, is contained in sect. 94 thereof. For the references
in notes {%) and (Je) respectively, substitute the reference 57 & 58 Yict
0. 46, s. 94.
Page 311. Sect. 47 of the Copyhold Act, 1894, contains the provision
that the steward is, in general, to^ represent the lord in all enfranchise-
ment proceedings. The matters in which the steward is not entitled to
deal on behalf of the lord are set out in sects. 23 (2) and 86 (5) of the Act
of 1894. For the reference in note {p) substitute the reference 57 & 58
Yict. 0. 46, ss. 23 (2), 47, 86 (5).
Page 312. The power of the steward to hold customary courts in the
absence of copyhold tenants is declared by sect. 82 of the Copyhold Act,
1894 ; and sect. 42 thereof contains the provision that the steward ie to
E'ye the tenant on admittance, or on enrolment on alienation, notioe of
a right to enfranchise the land, and to extinguish any manorial ind-
ADDENDA TO THB TREATISE. 76
dent affecting it. For the referenoes in note (r) substitute the raf erenoes
67 & 58 Vict. 0. 46, ss. 82, 83, 84, 86 (5).
Pag^ 316. Inspection of the court rolls after enfranchisement is now
provided for by sect. 62 of the Copyhold Act, 1894 ; and the provisions of
the former Copyhold Acts as to the custody of the court rolls of a manor
when all the lands have been enfranchised axe now contained in sect. 64
of the Act of 1894.
Page 323. The provisions of the Copyhold Act, 1887, as to the giving
of notice hj the steward to the tenant of the right to enfranchise, are now
contained m sect. 42 of the Act of 1894.
Page 362. When a lord has a right to grant land to be held by copy of
court roll, or by any customary tenure, he may make the grant out of the
manor, and wimout holding a court ; and the steward or deputy steward
may act on his behalf in the making of the grant. Copyhold Act, 1894,
8.83.
Pages 363, 364. From the terms of sect. 6, sub-sect. (1), and sect. 21,
sub-sect. (1) (b), of the Copyhold Act, 1894, it clearly appears now that
the lord's right to escheat for want of heirs is saved only in cases of either
compulsory or voluntary enfranchisements effected under the provisions
of the Act of 1894. The terms of sect. 4 of the Copyhold Act, 1887, were
so wide as to leave the matter open to doubt whether, in the case of an
enfranchisement effected after B^tember 16th, 1887, and operating at
common law, and independently of the Copyhold Acts, the enfranchising
lord's right to escheat did not still continue ; but the terms of the sections
above mentioned of the Copvhold Act, 1894, leave the matter no longer
in doubt, and on an enfranchisement operating at conunon law the lord is
not entitled to a right of escheat for want of heirs.
Page 366. With respect to enfranchisements effected independently of
the Copyhold Act, 1894, it is to be noted that that Act provides (sect. 89)
that where there is an agreement for enfranchisement, and the considera-
tion is a gross sum, not exceeding 600Z., the lord may make a declaration
stating the particulars of his estate and interest in the manor. If this
declaration snows that the lord is entitled to make the enfranchisement,
and to receive the consideration-money for his own use, the lord's en-
franchisement will be valid, and his receipt for the consideration-money
will effectually discharge the person paying it from being bound to see to
the application of the money, or being answerable for any loss or mis-
application thereof. If it is afterwards shown that the lord was not in
fact entitled to receive the consideration-money for his own use, the lord
is to be deemed as having received the amount as trustee for the persons
who are properly entitled to the money.
Page 366. The right of the owner of the enfranchised land to inspect
the court rolls, and to take copies thereof is now dedared by sect. 62,
sub-sect. (1), of the Copyhold Act, 1894.
Page 368, lines 30 — 33. It has already been pointed out (see above,
pp. 353, 354) that, in the case of enfranchisement by deed operating at
common law, the Icnrd will not retain his right to escheat for want of heirs.
Page 369. All the Copyhold Acts mentioned on this page were repealed,
ana are now replaced by the Copyhold Act, 1894.
76 SUPPLBMENT.
Pages 361-365. The proyisions of the Copyhold Act, 1841, and of the
subsequent Copyhold Acts relating to separate commutations of oertain
manorial rights in respect of lands of copyhold and customary tenure,
are not repeated in the Copyhold Act, 1894. The Copyhold Act, 1894,
following the scheme of the Copyhold Act, 1852, as moditied by the pro-
visions of the Copyhold Acts, 1858 and 1887, enables either the lora of
the manor or the admitted tenant of any copyhold land to obtain the
enfranchisement of such land, and the lord of a manor whereof freehold
land is held subject to any heriots, quit-rent, or other manorial inci-
dent, or the tenant of such land, to extinguish the manorial incidents,
and to release the land therefrom. The terms of sect. 27 of the Act of
1852 and of sect. 7 of the Act of 1858 clearly showed that the Leeislature
intended that the right to obtain extinguishment was meant to oe exer-
cised in respect of freehold land : but by sect. 7 of the Copyhold Act, 1887,
it was provided that the lord or tenant of any land subject to any heriot,
or to any quit-rent, free rent, or other manorial incident might require and
compel the extinguishment of such rights or incidents, and that provision
is rei)eated in sect. 2 of the Act of 1894. Although it may appear at first
sight that this provision would enable either the lord of the manor or the
tenant of copyhold land to obtain the extinguishment of any right to a
heriot or any other manorial incident separately and apart from an entire
enfranchisement of the copyhold land, yet it is believed that where the
land is of copyhold tenure, the proceedings to be taken either by the lord
or by the tenant must be for the entire enfranchisement of the land
and not for the separate extinguishment of any one manorial incident
affecting it.
Voluntary Enfranchisement.
In addition to the summary contained on pp. 365 — 374 of the Treatise,
it may be useful to mention the following points : —
Page 366* Although the Copyhold Act, 1841, has been repealed by the
Copyhold Act, 1894, as from and after the 29th of August, 1894, it is
provided by sect. 10 of the Act of 1894 that all awards, deeds, orders,
certificates, instruments, charges, and rentcharges made, executed,
granted, created, or having effect under the repealed Act are to have
effect as if the Act of 1894 had not been passed.
The power to effect a voluntary enfranchisement is now dedared by
sect. 14 of the Act of 1894 ; and the enfranchisement may be on such
terms as, subject to the provisions of the Act, are settled by agreement
between the lord and the tenant. The agreement is not chargeable wii^
stamp duty. Sect. 58 (1). The lord of a reputed manor may enfranchise.
Sect. 94. If the 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 of the land, is tenant of the land for the purpose of enfran-
chising. Sect. 94. If the tenant pays the whole of tne cost of the
enfranchisement, notice of the proposed enfranchisement need not be
given either by the lord or by tne tenant to the person entitled to the
next estate of inheritance in remainder or reversion in the manor or land
to be affected by the enfranchisement, sect. 14 (3).
Page 368* The provision that, as regards both compulsory and voluntary
enfranchisements, the Copyhold Act, 1894, is not to apply to any manor
belonging, either in possession or reversion, to any eocuesiastical corpora-
ADDBNDA TO THE TREATISB. 77
tion or to the Ecclesiastical CommissibnerB, in which the tenant has not
a right of renewal, will be found in sect. 95, sub-sect, (h), of the Act
of 1894.
Pages 368, 369. In accordance with the provisions of sect. 16, sub-
sect. (1), of the Act of 1894, a Toluntary enfranchisement is generally
effected by a deed of the nature mentioned. A form of such de^ will be
found on p. 490 of the Treatise, but the reference therein contained to
sect. 48 of the Copyhold Act, 1852, will now be replaced by a reference
to sect. 23, sub-sect. (1), of the Act of 1894.
Page 369. The provisions as to the form which the consideration for a
voluntary enfranchisement may take, will be found in sects. 15 an4 17 of
the Act of 1894.
Pa^ 369—371. Sects. 25 and 26 of the Act of 1894 contain the pro-
visions as to the manner in which the enfranchisement consideration
money may be paid, and as to the power to give receipts therefor. The
provisions of sect. 26 of the Copyhold Act, 1887, which are set out at
the top of p. 371, are now, by sect. 89 of the Act of 1894, declared to
apply to cases of enfranchisement where an agreement therefor is made
independently of the Copyhold Act, 1894.
Page 371. The remedies which a person has who pays the enfranchise-
ment consideration money to a lord not having title thereto are now
declared by sect. 26, sub-sects. (3) and (4) of the Act of 1894. With
respect to the lord's remedy where the enfranchisement consideration
money is not paid, it is to be noted that the Act of 1894 re-enacts, by
sect. 19, most of the provisions contained in sects. 70 and 71 of the Copy-
hold Act, 1841, which were expressly repealed by the Statute Law
Bevision Act, 1874 (No. 2). By virtue of the provisions of sect. 19 of
the Act of 1894, the land becomes, after the enfranchisement is effected,
charged with every sum payable to the lord in respect of the enfranchise-
ment, with interest thereon from the day fixed by the enfrandiisement
deed for pavment thereof until payment. Further, by virtue of the pro-
visions of the same section, the lord will be deemed to be seised of the
land, subject to the charge above mentioned, as a mortgagee in fee, and
may distrain on the land for any interest due in respect of the charge, as
if it were rent in arrear ; and the charge is to be deemed a first charge on
the land subject thereto, and is to have priority over all incumbrances
whatsoever affecting the land, except tithe rentcharges and any charges
having priority by statute, notwithstanding that these incumbrances are
prior m date to the enfranchisement.
Page 372. The provisions applicable to the case where the enfranchise-
ment consideration is a rentcharge are contained in sect. 17 of the Act of
1894. Sect. 20 of the Act of 1894 provides that the date at which a
voluntary enfranchisement is to take effect, and the commencement of
a rentcharge in consideration of a voluntary enfranchisement, may be
fixed by the memorandum of confirmation of the enfranchisement aeed,
and, if not so fixed, is to be the date of the confirmation of the deed by
the Board of Agriculture ; and sect. 27 deals with the dates of payment,
the incidence, and the recovery of rentcharges.
Page 373. The circumstances in which, and the terms upon which, the
enfranchised land may be charged with the enfranchisement consideration
money and expenses axe now set out in sect. 36 of the Act of 1894.
78 SUPPLSHSNT.
Beot. 18 of the Act of 1894 contauit the proTioomi irhieh apply to tiie
case where land is oonyeyed as the consideration for a yoluntaiy oifraa-
ohisement, but the proyisions of sect. 9 of the Copyhold Act, 1843 (whidi
entitle the person to whom an^ land, subject to an existing lease, is oon-
yeyed, to act as the person entitled to the reversion upon such lease, and
to distrain for the rents and enforce the coyenants) do not appear to be
re-enacted in the Act of 1894.
Fams 878, 874. The effect of enfranchisement is dealt with in Part m.
of^e Act of 1894, comprising sects. 21, 22, 23 and 24.
By sect. 80 of the Copyhold Act, 1894, the Board of Agricultnre are
empowered, by order under their seal, to direct that a part of the manor
specified in the order is to be considered as a manor for the porpose of
effecting an enfranchisement under the Act, and thereupon aU the pro-
yisions of the Act are to apply accordingly; but an order is not to be
made under the section for the purposes of a yoluntary enfranchisement
unless the lord of the manor consents in writing under his hand and seal*
Compulsory Extinguishment of Manorial Rights and Incidents
affecting Lands of any Tenure.
The proyisions of the Act of 1894 on this point are contained in sect. 2
and sect. 3, sub-sect. (b). llieee provisions follow, in the main, the pro-
yisions of the previous Copyhold Acts, but it may be noted that the Act
of 1894 does not expressly repeat the provision contained in sect. 7 of the
Copyhold Act, 1887, whereby an *' owner,'' or person entitled to the land
for any term of years originally granted for ninety-nine years or up-
wards, was entitled to compel the extinguishment of any manorial inci-
dent. See sect. 94 of the Act of 1894 for the interpretation of the word
<' tenant '' as used in the Act. By the same section *' rent " is expressed
as comprising ^* reliefs and services (not being services at the lord's court),
and every payment or render in money, produce, kind or labour due or
payable in respect of any land held of or parcel of a manor."
Compulsory Enfranchisement,
Page 875. The right to enfranchise copyholds oompulsoiily is now
declared by sect. 1 of the Act of 1894. It will be observed that it is a
condition precedent to compulsory enfranchisement at the instance of
ei^er the lord or the tenant that there should be '* an admitted tenant."
The terms ** admittance " and ** admit " are defined in sect. 94 of the Act
as including '* every licence of any assurance, and every ceremony, act
and assent whereby the tenancy or holding of a tenant is perfected."
The definition is wide enough to mclude the case of " implied admittance "
(as to which, see the case of The Ecclesiaatical Commisnoners for England
v. Parr, (1894) 2 Q. B. 420) ; and accordingly it will be sufficient if *< the
admittance alleged is one by necessary leged unplication by reason of acts
done within the manor." Per Lord Eeher, M. B., in The Ecdeaiattical
Commtseionera for England v. Parr, aupra,^ at p. 427. Sect. 3, sub-
sects, (a) and (c), set out the further conditions as to payment of fines
and fees which must be performed by the tenant, if the enfranchisement
is at his instance.
ADDENDA TO THE TREATISE. 79
Page 876. Sect. 95, sab-seot. (k), of the Act of 1894 xepeats the former
proyidons of the Copyhold Acts, excluding the operatioii of these Acts
from manors belonging either in possession or reversion to any ecclesi-
astical corporation, or to the Ecclesiastical GommissionerB, where the
tenant has not a right of renewal ; and sects. 68 to 71 of the Act of 1894
contain the special provisions of llie former Copjhold Acts as to enfran-
chisements in Crown manors and manors held m joint tenancy with the
Crown. The definition of the term *' lord '' will now be found m sect. 94
of the Act of 1894.
Pages 876, 877. The power of the Board of Agriculture and of the
tenant of the copyhold land to require a declaration from the lord, or his
steward, of the lord's title is set out in sect. 61 of the Act of 1894.
Page 877. Sect. 45 of the Act of 1894 provides for the case of the lord
being an infant or a lunatic, or being abroad, or unknown, or not ascer-
tain^ ; sect. 46 deals with the case of the lady of the manor being a
mairied woman; and sect. 44, sub-sects. (I) and (2), with the case of the
lords being trustees. The provision that the steward is, in general, to
act for the lord in all enfranchisement proceedings will be found in
sect. 47 of the Act. The occasions in which the Act of 1894 expressly
requires a special authority from the lord to the steward to enable nim to
act on the lord's behalf are set out in sect. 23, sub-sects. (1) and (2), and
in sect. 86, sub-sects. (1) and (5).
Pages 877, 878. The provisions dealing with the appointment of an
agent bv the lord are contained in sect. 48 of the Act of 1894, and a form
in which the appointment may be made is given in Form No. 5 of the
First Schedule to the Act.
Page 878. The provisions of the former Acts as to the death of the lord
while the enfranchisement proceedings are pending, and as to the succes-
sion of his rights and liabinties, are contained in sects. 49 and 60 of tiie
Act of 1894.
Pages 878, 879. « Tenant " is defined in sect. 94 of the Act of 1894, and
sect. 1 and sect. 3, sub-sects, (a) and (c), set out the conditions which must
be fulfilled before the tenant can compulsorily enfitmchise his copyhold
land. The conditions which must be performed by the tenant where his
land is freehold, or is land which the Act of 1894, borrowing from the
laneuaffe of sect. 6 of the Copyhold Act, 1858, describes as ** customary
fre^old," are declared by sect. 8, sub-sect. (b). The words in sect. 7 of
the Copyhold Act, 1887, enabling '*an owner of land" (including any
person entitled to the land for any term of years originally granted for
ninety-nine years or upwards) are not expressly repeated m the Act of
1894, in the definition of *' tenant."
Page 880. The right of a mortgagee in possession to require, or to join
in obtaining and effecting, an enfranchisement is declared by sects. 1, 39,
94 (*< tenant" (b)) of the Act of 1894; and sect. 96 (a) contains the
enactment that the provisions of the Act as to compulsory enfranchisement
are not to apply to any copyhold land held for a me or lives or for years,
where the tenant has not a right of renewal. The provision applicable
to* cases where the land is Held in undivided shares, is contained in
sect. 94, •* Tenant" (c).
Sect. 79 of the Act of 1894 deals with the case of enfranchisement in
80 SUPPLEMENT.
manors, where the fines are certain, and derivatiye interests are entered
on the court rolls.
Pages 880, 881. The right of a tenant, on his admittance or enrolmsnt,
to reoeiye notice of his right to enfranchise, is declared by sect. 42, sub-
sects. ( 1 ) and (2), and a form of the notice is contained in the First Schedule
to the Act, form No. 4. The consequence of the steward's neglect to
serve such notice is stated in sect. 42, sub-sect. (3). The definition of the
word ** tenant " is contained in sect. 94.
Pago 881. The provisions applicable to the case where the tenant
appoints an agent to act for him, are set out in sect. 48 of the Act of 1894.
The exemption of the power of attorney tram stamp duty is dedaied by
sect. 68, sub-sect. (1).
Pages 881, 882. Sect. 45 of the Act of 1894 contains the provisions
which apply where the tenant is under lefi;al disability; sect. 46 where
the tenant is a married woman ; sect. 44 wnere the tenant is a trustee ;
and sect. 43 provides, generally, that anything which is required or
authorised hj the Act to be done by a tenant, may be done by him,
notwithstanding that his estate in the land is a limited estate only.
Sect. 49 deals with the case of the death of a tenant pending enfranchise-
ment proceedings; and sect. 50 provides for the succession of the tenant's
rights and liabmtiee.
Page 888. Sect. 57 of the Act of 1894, provides for the service of the
notice of desire to enfranchise. Although the section requires the notice
to be in writing, that provision must oe read in coniunction with the
provisions of sect. 20 of the Interpretation Act, 1889, wnich provides that
m that Act and in every other Act, whether passed before or after the
commencement of the Interpretation Act, 1889, expressions referring to
writing are, unless a contrary intention appears, to be construed as
indudmg references to printing, lithography, photography, and other
modes of representing or reproducing words in a visible form.
The duty of the Board of Agriculture to frame and publish a scale of
compensation, and the duty of the person reqtiiring eiuranchisement to
state to the other whether or not he is willing to adopt the Board's B(»le,
are declared by sect. 66 of the Act of 1894.
Pages 884, 885. The circumstances in which, and the conditions under
which, the lord has power to stop enfranchisement proceedings which
have been commenced by a tenant, are set out in sect 11 of the Act of
1894 ; and sect. 12 of the same Act declares and regulates the power of
the Board of Agrictdture to suspend enfranchisement proceedings.
Pages 885 — 887. The different modes in which the compensation for
enfranchisement may be ascertained are enumerated in sect. 5, sub-
sects. (1) and (2^ of the Act of 1894. If the amount is fixed by agree-
ment Detween the parties, the agreement is not liable to stamp duty.
Sect. 58 (1).
Sect. 7, sub-sect. (9), of the Act of 1894 provides what steps are to be
taken by the Bocml wnen the amount of the compensation is left to be
determined by the Board.
Page 887. Where a valuer is appointed by justices to determine the
amount of the compensation, the lord of the manor cannot take any part
in such appointment if he himself is a justice. Act of 1894, sect. 6, sob-
sect. (3).
ADDENDA TO THE TREATISE. 81
Paee 388. Sub-sects. (4) (a), (b), and (o) of sect, d of the Act of 1894
deal with the procedure to be followed when the lord and tenant appoint
a valuer or valuers ; and sub-sects. (4), (e) and (f) of the same section
relate to the appointment of an umpire.
Pages 388, 389. The times for the decision of the valuers, the reference
to the umpire, and the making of his decision, and the power of the Board
to extend these times, are set out in sub-sects. (3) — (6), and (8) of
sect. 7 of the Act of 1894.
Page 389. The provisions dealing with the removal and the fresh
appointment of valuers or an umpire are contained in sub-sects. (4) (d),
(6) and (6) of sect. 6 of the Act of 1894.
Page 390. Sub-sects. (7)— (9) of sect. 5 of the Act of 1894 contain the
provisions as to the dut^ of a valuer or umpire to make and subscribe a
declaration before enterm^ on his duties. A form of the declaration will
be found in the First Scnedule to the Act. The powers of a valuer to
require the production of documents and the attendance of witnesses are
declared by sect. 54, sub-sects. (1) — (5\ of the same Act; and sub-
sect. (6) provides that if any person wiliuily destroys or alters any docu-
ment, of which the production is required, he shall be guilty of a misde-
meanour. Sect. 92 of the Act deals with the valuer's or umpire's right
to enter on the land to be enfranchised.
Page 391. Sect. 52 of the Act of 1894 repeats the provisions of the
earlier Acts as to the ascertainment of quantities and boundaries of land.
The circumstances to be considered by the valuers are declared by sect. 6,
sub-sect. (1), of the Act of 1894 ; and sub-sect. (2) of the same section
provides that the value of the matters to be taken into account shall be
calculated as at the date of the notice to enfranchise.
Page 394. Sect. 13 of the Act of 1894 enables the Board of Agriculture
to continue any conditions as to the user of the land.
Sect. 7 of the same Act enumerates the duties of the valuers, sub-
sect. (3) thereof providing that the valuers are to give their decisions
within forty-two days aner their appointment, or within such further
time as the Board by order may allow.
The valuers have to deliver copies of their decisions to the lord or
tenant, and the umpire is under the same obligation. Act of 1894, s. 7 (6).
The power of the !board to return the valuation to the valuers or umpire
for reconsideration or correction is declared by sub-sect. (7) of sect. 7 of the
Act of 1894. If the correction or amendment is not satisfactory to the
Board, the compensation may be determined by the Board after notice to
the lord and tenant. Sect. 7, sub-sect. (8). A valuation is not liable to
stamp duty. Act of 1894, s. 58 (1).
Page 395. The power of the Board to decide questions of law and fact
arising in the course of a valuation is now declared by sect. 53, sub-
sect. (1), of the Act of 1894 ; and sub-sect. (2) of the same section provides
for the appeal from a decision of the Board on any question of law. The
provisions of sect. 40 of the Copyhold Act, 1841, as to the costs of the
special case by which the appeal is taken are not repeated in the Act of
1894, but the matter of costs is regulated by the Eules of the Supreme
Court.
E. G
82 8UPPLEMBNT.
Pag6B 396, 897. The provisions of the Copyhold Act, 1887, as to tihe
framing and publishing by the Board of scales of allowances to yaluers
or umpires for their services are now repeated in sect. 66 of the Act ol
1894.
Page 397. The provisions of the earlier Acts as to the preparation and
coniirmation of the award of enfranchisement by the Board are now con-
tained in sect. 10 of the Act of 1894. It should be noticed, however, that
sub-sect. (2) of sect. 10 requires that the award shall state whether the
compensation is a gross sum or a rentcharge, and the amount thereof,
and, where it is a rentcharge, shall make the land subject thereto and
chargeable therewith. It is also to be observed that the consideration for
a compulsory enfranchisement must, except in the cases provided for by
sect. 8 (1) of the Act of 1894, be paid in a gross sum of money. Act of
1894, sect. 8, sub-sect. (2). Sect. 58, sub-sect (2), of the Act of 1894,
provides for the amount of stamp duty payable on an enfranchisement
award.
Page 398. The effect of the confirmation by the Board of an award of
enfranchisement, and of the execution by the Board of a deed of enfran-
chisement, is dealt with in sect. 61 of the Act of 1894. Sect. 60 contains,
in sub-sects. (1), (2), and (4J, the provisions of the previous Copyhold
Acts as to the power of the Board to correct errors in instrumeuts Laving
effect under the provisions of these Acts, and it further provides, in sub-
sect. (3), that an alteration shall not be made in an instrument relating
to a voluntary enfranchisement without the consent in writing of the
persons affected by the alteration.
It may be noticed here that sect. 59 of the Act of 1894 provides that
the Board of Agriculture may require the payment of all office fees and
other expenses of the Board from either lord or tenant requesting the
delivery of any award, deed, or order under the Act, before delivering it.
Sub-sect. (6) of sect. 10 of the Act of 1894 repeats the provisions ox the
Copyhold Act, 1858, as to the date at which a compulsory enfranchise-
ment shall take effect.
Pages 398, 399. Form of Compensatwn.^^Gci, 8, sub-sect. (1), of the
Act of 1894 repeats the provisions of the Act of 1887 as to the cases in
which the compensation for a compulsory enfranchisement may be a
rentcharge. Sub-sect. (2) of the same section provides that, except where
provision is made by that section for the compensation being charged by
way of rentcharge, the compensation is to be paid in a gross sum before
the completion of the enfranchisement.
It may be noticed here that sect. 26 of the Act of 1894 contains various
provisions regarding the payment of money, payable under the Act as the
consideration for an enfranchisement, to a lord who either refuses to
accept the money, or has only a limited estate or interest in the manor.
Page 399. As to the commencement of a rentcharge in the case of a
compulsory enfranchisement, see now sect. 8, sub-sect. (1), of the Act of
1894 ; and as to the date of payment of all rentcharges created under the
provisions of the Act, see sect. 27, sub-sects, (a) and (b).
Page 400. Recovery of Rentcharge. — Sect. 27, sub-sect, (e), of the Act of
1894 repeats the provisions of the Act of 1887, that rentcharges are to be
recovered by the like remedies as are provided by sect. 44 of the Convey-
ancing and Law of Property Act, 1881, and that any occupying tenant.
ADDENDA TO THE TREATISE. 83
who properly pays on account of a rentcharge any money which, as
between him and his landlord, he is not liable to pay, is to be entitled to
recover from the landlord the money paid, or to deduct it from the next
rent payable by him ; and the same sub-section contains a further pro-
vision that an mtermediate landlord, who pays or allows any sum under
the foregoing provisions, may in like manner recover it from his superior
landlord or deduct it from his rent.
With re^;ard to the apportionment of rentcharges, sect. 28 of the Act of
1894 provides that the persons who are for the time being entitled to a
rentcharge under the Act and to the land subject to the rentcharge
respectively, whether in possession, or in remainder or reversion expec-
tant on an estate lor a term of years, may apportion the rentcharge
between the several parts of the land charged therewith, provided (a) that
if the person entitled to the land is not absolutely entitled, the apportion-
ment IS not to be made without the consent of tne Board of A^culture,
and (b) that a person who is entitled to an' undivided share m a rent-
charge, or in land, is not to exercise the power of apportionment which
the section confers, unless the persons entitled to uie other undivided
shares concur.
Page 401. Redemption of rentcharge, — Sect. 30, sub-sect. (1), of the Act
of 1894 repeats the provisions of the Copyhold Act, 1887, as to the right
to redeem rentcharges, with the proviso that, where the estate or interest
of the person entitled to the rentcharge is limited, the Board of Agricul-
ture is, in cases where the amount of the redemption money exceeds 20/.
for all the rentcharges under the Act in the manor, to direct the amount
either to be paid into Court, or to trustees, in the manner provided by the
Act, and in any other case to direct the amount either to be paid into
Court, or to trustees, as aforesaid, or to be retained by the person entitled
for his own use.
As to the amount of the redemption money, sub-sect. (2^ of the same
section provides that in cases where the rentcharge is of nxed amount,
the sum shall be twenty-five times the yearly amount of the rent-
charge, and in any other case the sum shall be the amount fixed by the
Board of Agriculture on the request of the person entitled to redeem the
rentcharge.
The provision as to the giving of six months' notice of intention to
redeem is contained in sub-sect. (3) of sect. 30.
Sub-sect. (4) of the same section repeats the provisions of the Act of
1887 as to the manner of recovering the amount of the redemption money;
sub-sect. (5) provides that, when it appears to the Board of Agriculture
that payment or tender of the consideration-money has been duly made,
the Board may certify that the rentcharge has been redeemed, and that
the certificate is to be conclusive ; and sub-sect. (6) contains the further
provision that the expenses incurred in redeeming a rentcharge are to bo
dealt with on the same footing as the expenses incurred in redeeming a
mortgage.
Rentcharge a first charge on the land, — See sect. 27, sub-sect, (c), of the
Act of 1894.
Lord^B charge to he appurtenant to the manor, — See sect. 27, sub-sect. (d).
Page 402. Sale of rentcharge by a limited owner. — Sect. 31 of the Act of
1894 repeats the provisions of the earlier Acts, with the proviso that, when
the consideration-money does not exceed the sum of 20/. for all the rent-
charges in the manor, the amount may be paid, if the Board so directs,
g2
84 SUPPLEMENT.
to the person for the tiine being entitled to receire the rentcharge for his
own use.
Receipt for compensation money, — Sect. 25 of the Act of 1894 re-enacts
the provision that the receipt of any person for money paid to him in
pursuance of the Act, is to he a sufficient discharge for the amount so
paid ; and sect. 26 deals with the subject of payment of consideration-
money to a lord who either has only a limited es^te in the manor, or has
an insufficient or bad title, or who refuses to receive the money. With
respect to these points it may be noted that if the lord hsus only a limited
estate or interest and the amount does not exceed 20Z. for all the enfran-
chisements in the manor, the Board may direct the sum either to be paid
into Court, or to trustees in the manner provided by the Act, or to be
retained by the lord for his own use. Sect. 26, sub-sect. (1) (b). If the
title of a lord, to whom compensation has been paid, is aft6rwai*d8 proved
to be bad or insufficient, the rightful owner of the manor, or his repre-
sentative, may recover the amount from the person to whom it was paid,
or his representative, with interest at the rate of bL per centum, per
annum, irom the time of the title being proved bad or insufficient.
Sect. 26, sub-sect. (3). If any principal money is paid for enfranchise-
ment to a person who is not entitled to receive it under the provisions of
the Act, the land enfranchised is to continue charged with the payment
of the money in favour of the person entitled ; but the person entitled to
the land may recover the money as against the person who wrongfully
received it. Sect. 26, sub-sect. (4). The Board of Agriculture may settle
any question which arises as to the proper application, appropriation, or
investment under the Act of any money payable in respect of an enfran-
chisement, its decision berag final. Sect. 26, sub-sect. (5).
Sect. 89 of the Act of 1894 re-enacts the provisions of the Act of 1887,
as to the power of the lord to give a complete discharge for compensation-
money paid to him not exceeding 500^ in cases of enfranchisement by
agreement or otherwise, without reference to the Board of Agriculture.
The terms of the section of the Act of 1894 show that the section is intended
to apply to cases of agreements for enfranchisement made independently of
the Act.
Page 403. Lord^a refusal to receive compeniotion, — The provisions of the
Act of 1858 are repeated in sect. 26, sub-sect. (2), of the Act of 1894.
Payment of enfranchisement compensation or of redemption-money in case
of a limited omner, — Sect. 32 of the Act of 1894 deals with the cases of
payment into Court or to trustees, and repeats the provisions of the
former Acts as to the appointment of trustees by the Bourd of Agri-
culture. The investment and application of the money so paid mto
Court, or to trustees, are dealt with by sect. 33.
Pages 404, 405. If manor is held on charitable trust. — ^The provisions
of the Act of 1858 are now contained in sect. 76 of the Act of 1894.
Pag6 406. If a corporation is lord of a manor, — ^The provision as to
the payment of enfranchisement-money, for the use of a corporation, to
trustees to be appointed by the Board of Agriculture, is repeated in
sect. 77 of the Act of 1894.
The provisions as to the payment of enfranchisement-money for the
use of a spiritual person in respect of his benefice or cure are contained
in sect. 74 of the Act of 1894,
ABDBNDA TO THB TREATISE. 85
LoT^s remedies to recover enfranchiaement consideration, — Sect. 10, Bub-
sect. (4V of the Act of 1894 re-enacts the provision that the award of
enfranciusement is not to be confirmed by the Board untiL production of
the receipt for the consideration-money ; but the provisions of the Act
of 1858, as to the confirmation of the conveyance of land, and the pro-
visions of the Act of 1852, as to the lord's entering upon the land and
letting it, are not repeated.
Pag6B 406, 407. Coniidercttion charged on land : effect of charge, &c, —
Sect. 36 of the Act of 1894 contains the provisions of the earlier Acts as
to the cases in which the consideration-money for an enfranciusement
may be charged on the land enfranchised, as to the form in which the
charge may be made, and as to the effecb of the charge; and sect. 41
animmarises the provisions of the former Acts relating to certificates of
charge. The provisions of the Act of 1887, enabling certain companies
to advance moneys required for the purposes of the Copyhold Acts, are
repeated in sect. 40 of the Act of 1894.
Pag6 407. Charge by lord purchasing tenant* s interest, — Sect. 36, sub-
sect. (3), of the Act of 1894 contains the provision as to the charge by the
lord of the amount of his purchase- money and expenses, but from the
terms of the section it would seem that the consent of the Board of
Amculture is no longer necessary.
It may be usefully mentioned here that sect. 38 of the Act of 1894
provides that if a tenant, or person claiming to be a tenant, pays any
money in respect of enfranchisement compensation, or consideration, and
is afterwards evicted from the land enfranchised, he may claim against
the land enfranchised the amoimt of the money, or so mucn of it as is not
charged on the land under the other provisions of the Act, and that the
amount is to be a charge on the land, with interest thereon at tiie rate of
4^. per centum, per annum, from the date of the eviction. With respect
to money paid oy a mortgagee as compensation, or consideration, or
expenses, m respect of an enfranchisement, or redemption of a rent-
char^ on the mortgaged properhr, the 39th section of the Act of 1894
provides that any sums so paid shall be added to the mortgage, and the
mortgaged property shall not be redeemable without payment of the
amount with interest.
Page 408. Transfer of fee-farm rent or charge from manor to freehold
lands or Government stocks of adequate value, — See sect. 56 of the Act of 1894.
Pages 408, 409. Expenses.— ^)QCit, 34 of the Act of 1894 provides for the
manner in which the expenses of dealings under the Act are to be borne.
If lord is truMeCf ike, — ^The Act of 1894 does not repeat the provisions of
the Act of 1852 as to the expenses of a lord who has only a limited interest
in the manor or is a trustee, but, in lieu thereof, it provides, in sect. 37 (1),
that expenses incurred by a lord in proceedings under the Act may (a) be
paid out of anj consideration or compensation-money (where it is a gross
sum) arising m respect of the proceedings, or (b) be charged together
with the expenses of the charge on the manor, or on land settled to the
same uses as the manor, or on any rentcharge arising in respect of the
proceedings or in respect of any enfranchisement under the Act within the
manor ; and (2) that any charge so made may be either by deed by way
of mortgage, or by a certificate of charge under the Act ; out these pro-
idsions do not apply to the expenses of a purchase by a lord under the
86 SUPPLEMENT.
terms of the Act of a tenant's interest in the land (sub-sect. (3) ), such
oxponses being dealt with by sect. 36 (3).
Pag^S 409, 410. Remedies for recovery of expenses, — Sect. 35 of the Act
of 1894 provides for the recovery of expenses. In addition to the methods
mentioned on pp. 409, 410 of the Treatise, the section enacts, in sub-
sect. (1) thereof, as follows : — ** (b) If the expenses are in respect of a
compulsory enfranchisement, and the amount is certified by an order of
the ^ard of Agriculture, it may be recovered in any way provided bv
this Act for the recovery of the consideration for the enfranchisement.
Sect. 19 of the Act appears to be the only section providing for the
recovery of enfranchisement consideration. Sect. 35 also provides —
*' (c) If the amount is certified by an order of the Board of Ajg^culture,
and the person liable to pay the amount does not pay it immediately after
receiving notice of the order, the person to whom tne amount is payable
shall be entitled to obtain from a court of summary jurisdiction a warrant
of distress against the goods of the person in default."
Expenses of trustee, — The provisions as to the expenses of a tenant who
is trustee are now contained in sect. 35, sub-sect. (2), of the Act of 1894.
An occupier of land properly paying any expenses of an enfranchisement
under the Act may deduct ike amount paid m>m his next rent. Sect. 35,
sub-sect. (3).
PagOB 410, 411. Oeyieral expenses may he charged, — The provisions of the
earlier Acts as to charging l^e general expenses of an enfranchisement
on the land enfranchised, or on the manor, or any land settled to the
same uses, are for the most part repeated in sect 36 of the Act of 1894 ;
but the distinction taken in the former Acts between expenses incurred
in charing the land and the general expenses of an enfranchisement is
not mamtuned. The form of a charge for expenses, or consideration-
money and expenses, is given in sect. 36, sub-sect. (6), sect 41, and the
First Schedule to the Act, form 2.
Effect of charge of expenses, — See sect. 36, sub-sect. (7), of the Act of
1894.
Expenses in case of dispute as to tiUe, — See sect. 34, sub-sect. (6), of the
Act of 1894.
Page 412. Expenses of redemption of rentcharge, — See now sect. SO, sub-
sect. (6), of the Act of 1894.
With regard to the expenses of inquiries by the Board of Agriculture
under the Act of 1894, it may be mentioned that it is provided by sect. 55
that the Board may, if they tiiink fit, order that tne expenses of any
inquiry held by them under the Act, including the expenses of witnesses
and of the production of documents, shall De paid by the parties to the
inquiry, and to such person and in such proportions as the Board think
proper.
Pages 412, 413. Steward's compensation, — The provisions of the Copy-
hold Act, 1841, as to the compensation which should be made to the
steward of a manor in the case of voluntary commutation or enfran-
chisement, are not repeated in the Act of 1894, nor are the provisions of
the Acts of 1852 and 1858, dealing with the steward's right to compensa-
tion in the case of compulsory enfranchisement. The provisions of the
Act of 1887, regarding the compensation which must be paid by the
tenant to the steward on a compulsory enfranchisement, are repeated ia
ADDENDA TO THE TREATISE. 87
sect. 9 of the Act of 1894. The term ** steward '' is defined in sect. 94 of
that Act.
The proyisions of the Act of 1852, entitling the steward to a reasonable
sum for any inspection of the court rolls of uie manor which any person
interested in the enfranchised land for the time being may desire to make,
or for any extracts from the court rolls, axe re-enacted in sect. 62 of the
Act of 1894; and the proyisions of the Act of 1858, requiring a tenant of
lands to which the last admittance had been taken prior to the Ist of July,
1853, or in respect of which no heriot had become due or payable since
the 30th of Jime, 1853, to pay to the steward two-thirds of the sum to
which he would haye been entitled in respect of an admittance, or enrol-
ment on an alienation made since these dates, will now be foimd in
sect. 3 of the Act of 1894.
Page 414. Compensation paid to steward may he charged. — The former
proyisions on this head appear to be included in sect. 36 of the Act of
1894.
Pages 414, 416. Effect of enfranchisement — Subsisting leases not affected, —
See now sect. 21 of the Act of 1894.
Page 416. Protection to occupying tenant. — See now sect. 27 of the Act
of 1894.
Commonable rights, — See now sect. 22 of the Act of 1894.
Pages 415, 416. Mines and minerals, — ^As to grants of rights of way
and easements, see sect. 24; and as to the exception of minerals and
franchises, see sect. 23, sub-sect. (1), of the Act of 1894.
Page 417. User of soil of enfranchised lands.—Soe sect. 23, sub-sect. (1),
of me Act of 1894.
Conditions as to user of land destroyed, but may he continued, — See sect. 13
of the Act of 1894.
Inspection of court roUs, — See sects. 62 and 64 of* the Act of 1894.
Enfranchisements under the Lands Clauses Consoltdatiwi Act^ 1845.
Pages 418 — 420. It may be mentioned that it is proyided by sect. 95 of
the Copyhold Act, 1894, that nothing contained in the Act is to interfere
with any enfranchisement which may be made independently of that Act,
or with the exercise of any powers contained in any other Act of Parlia-
ment.
Enfranchisements in Manors where Derivative Interests are entered
upon the Court Rolls.
Pages 420—428. The special proyisions of the Copyhold Act, 1887,
with regard to enfranchisements in manors where the fines are certain,
and it is the practice for the copyholders in fee to grant deriyatiye interests
to persons wno take admittance in respect of these interests, will now be
found in sect. 79 of the Act of 1894 and its yarious sub- sections.
88 SUPPLEMENT.
Enjranchisenients in Crown Manors.
Page 423. For the reference in note (o) on this page sabstitate a re-
ference to the Copyhold Act, 1894, s. 69 (1) ; and for the reference in
note (p) substitute a reference to the same Act, sect. 96 (b).
Page 424. For the reference in note («) on this page substitute a refer-
ence to the CSopyhold Act, 1894, s. 68.
Pages 425 — 427. The proyisions of the former Copyhold Acts relating
to enfranchisements in manors vested in the Crown for an estate in
remainder or reversion expectant on an estate of inheritance, will be
foimd re-enacted in sect. 69 of the Act of 1894, sect. 71 of that Act deal-
ing with the inrobnent of the instruments of enfranchisements in Crown
manors.
Page 427. Manors held in Joint tenancy with tJie Crown, — See now
sect. 70 of the Act of 1894.
TriLsteefor the Croum to he indemnified, — See sect. 69, sub-sect. (9), of
the Act of 1894.
Manors belonging to the Duchy of Lancaster, — ^For the reference in
note (t) on this page substitute a reference to the Copyhold Act, 1894,
ss. 68 and 96 (f).
Page 428. Manors belonging to the Duchy of Cornwall — See sect. 95 (g)
of me Copyhold Act, 1894, providing that nothing in the Act is to extend
to or prejudice the estate, right, title, privilege or autiiority of her
Maiesty in right of the Duchy of Cornwall or the possessions thereof, or
of the Duke of Cornwall for the time being.
Enfranchisements in Ecclesiastical Manors.
Page 428. For the reference in note (o) on this page substitute refer-
ences to the Copyhold Act, 1894, ss. 75 and 95 (h) ; and for the refer-
ence in note ( p) substitute a reference to sect. 72 of the same Act.
Page 438. For the reference in note {p) on this page substitute a refer,
ence to the Copyhold Act, 1894, s. 73. The term *< ecclesiastical corpora-
tion " is defined in sect. 94 of the Act of 1894.
Page 484. For the references in notes (r), {t) and {x) on this page,
substitute references to the Copyhold Act, 1894, s. 75. The provisions of
sect. 39 of the Copyhold Act, 1852, referred to on line 14 of tnis page, are
replaced by the provisions of sects. 32 and 33 of the Act of 1894.
Enfrancfiisemefits under the Universities and College Estates Acts,
Pages 488, 487. The provisions of the Copyhold Act, 1887, deaUng
with the case of joint lords under sect. 4 of the Universities and College
Estates Act Extension Act, 1860, are re-enacted in sect. 78 of the Copy-
hold Act, 1894, with a slight variation. The section of the Act of 1894,
after providing that, when a manor has been granted by ike university or
ADDENDA TO THE TREATISE. 89
college on a lease for a life or lives or for a term of years, the university
or college and the lessee are jointly to constitute the IopI of the manor
•within the meaning of the Act of 1894, continues thus : ** And any rent-
charge ci*eated under this Act on the enfranchisement of land held of that
manor shall be in favour of, and the compensation for the enfranchise-
ment may be paid to, the person who, at the date of the enfranchisement,
is entitled in possession to the profits of the manor, his executors and
administrators, but without prejudice to any question as to the further
disposal of any money paid in respect of the rentchar^ or other compen-
sation respectively ; provided that on the determination of such lease as
aforesaid, any monev so paid or any securities in which the same may
have been invested shall be paid or applied as enfranchisement money is
directed to be paid and applied by section one of the Universities and
College Estates Act, 1858.'^
The provisions of sect. 1 of the Universities, &c. Act, 1858, are sum-
marized on pp. 435, 436 of the foregoing Treatise.
Othei* Statutory Enframhiaements.
Page 438. Note (a;). Sect. 70 of 42 Geo. III. c. 116 has been repealed
by 59 & 60 Yict. c. 28, s. 40. See sects. 31—35 of 59 & 60 Yict. c. 28 for
new provisions as to the redemption of land tax.
Ibid., note {y). The Act 16 & 17 Yict. c. 74 has been repealed by
59 & 60 Yict. 0. 28.
Powers of Board of Agriculture.
Pag68 440, 441. Board may hear and determine disptUea, — ^The provisions
of sects. 39 and 40 of the Copyhold Act, 1841, have not been re-enacted
in the Copyhold Act, 1894.
Page 441. Reference to arbitration, — Sect. 21 of the Copyhold Act, 1841,
has not been re-enacted in the Copyhold Act, 1894.
Page 442. Note (g). For the reference to the Copyhold Act, 1844,
substitute a reference to the Copyhold Act, 1894, s. 32, sub-s. (4) (c).
Ibid., note (r). For the reference to the Copyhold Act, 1841, substitute
a reference to the Act of 1894, s. 65.
Ibid., note (b). For the reference to the Copyhold Act, 1841, substitute
a reference to the Act of 1894, s. 91.
It may be usefully mentioned here that it is provided by sect. 92 of the
Copyhold Act, 1894, that a member or officer of the Board of Agriculture,
and a valuer or umpire appointed under the Act, and their agents and
servants respectively, may enter on any land proposed to be dealt with
under the Act, and may make all necessary measurements, plans, and
valuations of the land, provided that reasonable notice of the intention to
enter on the land is eiven to the occupier; but if anyone does any injury
in the execution of me powers conferred by the section, he has to make
compensation therefor. The Act of 1894 also provides (sect. 93) that if
any person obstructs or hinders a member or officer of the Board of Agri-
culture, or a valuer or umpire acting under the provisions of the Act, he
shall be liable, on summary conviction, to a fine not exceeding 51, An
order or proceeding under the Act by, or before, or under the authority
90 SUPPLBMEMX.
of the Board of Agricultuie, or a conyiction tinder the Act, is not to be
quafihed for want of form, and is not to be remoyed by certiorari or
otherwise into the High Court or any other Court Copyhold Act,
1894, B. 67.
The Board of Agriculture are empowered to direct, by order under their
seal, that a part of a manor specined in the order shall be considered as
a manor for the purpose of enecting an enfranchisement under the Act
of 1894, and when such an order has been made, all the proyisions of the
Act are to apply to the part so specified. Copyhold Act, 1894, s. 80.
The Board must, in eyery year, make a general report of their pro-
ceedinffs in the execution of the Copyhold Act, 1894, and the rei>ort must
be laid before both Houses of Parliament as soon as may be after it is
made. Copyhold Act, 1894, s. 90.
(91 )
INDEX.
ABEOAD, absenoe of lord or tenant, 34.
ACTS OF PAELIAMENT,
enfranohiaement under other, 61, 63.
repeal of preyious Copyhold Acts, 63, 65.
ADMITTANCE,
gives right to enfranchise, when, 1, 2, 69.
what constitutes, 59, 69.
tenant to receive notice on, 33, 69.
manner of making, 55, 56, 62, 63, 69.
by attorney, 56, 68, 70.
fees on, 2, 33.
refusal to take, lord's rights upon, 71, 72.
ADVANCE of moneys for enfranchisement purposes, 32.
AFFEEEma of amercement, 74«
AGENT. See Attorney.
AGREEMENT,
fixing amount of enfranchisement compensation, 3, 4.
that Board shall determine compensation, 3, 4.
for voluntary enfranchisement, 12, 58.
by ecclesiastical corporation to enfranchise, 48, 49.
steward's power to make, 19, 35.
for purposes of Act, free from stamp duty, 41, 76, 80.
to enfranchise independently of Act, 57, 75.
ALIENATION,
in parcels, licence for, 56, 68.
apportionment of rent on, 56.
y remedies for, 74.
92 INDEX.
ANNUITY,
terminable, charge may be by way of, 30.
certificate of charge by way of, 32.
APPEAL from decision of Board, 38, 81.
APPOINTMENT,
of Taluers, 3 — 5.
when revocable, 4.
of trustees by Board of Agricultore, 26.
power of, oyer copyholds, effect of, 70.
APPOETIONMENT,
of rentcharges, 22, 23.
of expenses, 27, 28, 53.
of contribution to enfranchisement compensation, 52, 53.
of customary rent, 56,
imder Copyhold Act, 1841, eridence of, 43.
APPROVEMENT, 78.
ATTORNEY,
for enfranchisement, appointment of, 35, 41, 65, 79, 80.
powers of, 35, 36.
to take admittance, appointment of, 56, 70.
acts of, 68, 70.
AWAED OF ENFBAN(
preparation and confirmation of, 9, 10, 82.
requisites of, 9, 19.
to be entered on court-rolls, 10.
easements for minerals to be mentioned, 19.
effect of confirmation, 42.
informality in, 42.
stamp duty on, 41.
payment of fees for, 41.
imder repealed Copyhold Acts, 63, 76.
BENEFICE. See Queen Anke's Bounty.
BOAED OF AGEICULTUEE,
when enfranchisement compensation fixed by, 3, 4, 7, 8.
may extend times mentioned in Act, 6, 81.
powers in respect of decision of valuers, 7, 81.
preparation and confirmation of award by, 9, 10, 82.
to direct entry of confirmed award on court-rolls, 10.
XNDEX. 93
BOAED OF AGEICTTLTTJIlE--con«ntied.
to fix date of compulsoiy enfranchisement, 10.
duties of, where tenant's interest purchased by lord, 10, 11.
suspension of enfranchisement proceedings by, 11, 12.
consent of, to voluntary enfranchisement, 14.
date of voluntary enfranchisement may be fixed by, 16.
powers of, as to payment of enfranchisement money, 20, 21, 26.
when apportionment of rentcharge to be with consent of, 22.
powers of, as to redemption of rentcharge, 23, 24.
appointment of trustees by, 26.
powers of, as to enfranchisement expenses, 27, 28, 39.
consent of, to charge for consideration money, &c. by tenant, 29.
to seal certificates of charge, 32,
may require declaration of lord's title, 36, 37.
when boimdaries to be determined by, 38.
plans to be approved by, 38.
to determine questions of law and fact, 38, 81.
appeal from decision of, 38, 39.
production of docimients ordered by, 39.
examination of witnesses ordered by, 39.
expenses of inquiries held by, 39, 40, 86.
transfer of charge on manor, 40.
payment of fees to, 41.
correction of errors in deeds, &c., 41, 42, 82.
fees for inspection of court-rolls fixed by, 42, 43.
delivery of court-rolls to Master of the Bolls, 43.
to frame and circulate forms, 44.
to publish scales of compensation and allowances, 44, 80.
as to enfranchisements in Crown manors, 45.
in Duchy of Lancaster manors, 45.
in manors where derivative interests
entered on court-rolls, 52, 53.
may direct Act to apply to part of manor, 54.
creation of new copyholds, consent to, 54.
yearly report by, 57, 58, 90.
delegation of powers by, 58,
officer of, powers of, 58, 89, 90.
orders of, under repealed Acts, 6S, 76.
validity of, 42, 45, 89, 90.
inclosure, consent to, 73.
BOBOUGH-ENGUSH, 16.
BOUNDABIES, ascertainment of, 37, 38, 81.
94 INDEX.
CAMBBIDGE, UNIVBRSrrY OF, 61.
CAPITAGIUM, 74.
CEETIFICATB,
of lord's puToliase of tenant's interest, 11.
of redemption of rentoharge, 24.
of charge in respect of expenses, 28.
of consideration money and expenses, 32, 33, 64.
remedies of owner, 33.
stamp duty on, 41.
by keeper of Land Beyenue Becords, 48.
under repealed Copyhold Acts, 63.
GEBTIOEABI, no remedy by, 45, 90.
CEET-MONEY {cerium leke), 74.
CHABGE,
of consideration-money and ezpenaee, 29, 30, 77, 85, 86.
of value of land, 29.
by lord purchasing tenant's interest, 30, 85.
expenses of, to be included in amount charged, 30.
of lord's expenses, 31, 85.
on manor, effect of, 16.
transfer of, 40, 85.
for amount of yoluntary enfranchisement consideration, 15.
for consideration money where tenant's title proyes bad, 31.
under repealed Copyhold Acts, 63, 76.
of compensation paid to steward, 87.
See Certifioate.
CHAHITABLB TBUST,
manor held on, 50, 51, 84.
Acts, 1853 to 1891.,. 50, 51.
CHASE, right of, when affected by enfranchisement, 18.
CHIEF-BENTS, to be allowed for in compensation, 6.
CHBIST CHUBCH, Oxford, 59.
CHUBCH ESTATES COMMISSIONEBS, 50.
COLLEGE MANOBS, enfranchisements in, 51, 88, 89.
COMMON,
rights of, not affected by enfranchisement, 18, 87.
inclosure of, not authorized by Copyhold Act, 55, 61, 73.
INDBX. 95
COMMUTATION under repealed Copyhold Acts, 43, 72, 78.
COMPENSATION or CONSIDEEATION, •
(a) for compnlBory enfranchisement^
how ascertainable, 3 — 8, 80.
when to be a rentcharge, 8, 82.
tenant's right to pay in money, 8.
receipt for, to be produced before award confirmed, 10.
a sufficient discharge, when, 19.
payment and application, where lord has limited estate,
or refuses to accept, 20, 21, 25—27, 82, 84.
may be charged on land enfranchised, when, 29, 30, 31.
scale regulating, to be published by Board, 44.
agreement fixing, exempt from stamp duty, 41, 80.
to steward, 9.
for lord's purchase of tenant's interest, 10, 11.
payment of, in ecclesiastical manors, 49, 50.
in respect of benefice or cure, 49.
when manor held on charitable trust, 50,
51.
to corporation lord of manor, 51.
when imiversity manor held on lease, 51.
in manors where deriyatiye interests entered
on court-rolls, 52.
advance of, by company, 32.
(b) for voluntary enfranchisement,
forms of, 13.
if a rentcharge, provisions as to, 14.
if land, or right to minerals, 15.
to be a charge on land until paid, 15.
receipt for, 19.
payment and application where lord has limited estate,
or refuses to accept, 20, 21, 25—27.
charge of, on land enfranclused, when, 29, 30.
in Crown manors, how ascertained, 45, 47.
how paid and applied, 46.
payment of, in ecclesiastical manors, 49, 50.
when payable to use of spiritual person, 49.
when manor held on charitable trust, 50,
51.
to corporation lord of manor, 51.
when university manor held on lease, 51.
advance of, by company, 32.
independently of Act of 1894... 57, 75.
96 INDEX.
COMPULSOEY ENPRANOHISEMENT. See Enfranchisb-
MENT.
CONDITIONS as to user of ktnd, 12.
CONFIRMATION of enfranchisement award or deed, 42.
CONSEDEBATION. See Compensation.
COPYHOLD TENXJBE,
customary freeholds a form of , 3.
incidents of, allowed for on compulsory enfranchisement, 5, 6.
enfranchisement destroys, 16, 17.
new creation of tenements to be held by, 54, 55, 73.
grants of lands to be held by, power to make, 55, 68.
manner of admitting to lands held by, 55, 56, 69.
alienation of tenement held by, in parcels, 56, 68.
partition of lands of, 57, 71.
descent of trust and mortgage estates in lands of, 57.
effect of Land Begistry and Land Transfer Acts, 62.
COPYHOLDS FOE LIVES,
when tenant of, can enfranchise, 60, 62, 79.
custom to bar, 67.
COPYHOLDS FOE YEAES,
when tenant of, can enfranchise, 60.
instance of, 67, 68.
COENWALL, Duchy of, provisions as to, 61, 88.
COEPOBATION,
consent of, aggregate or sole, when to be given, 49.
how to be given, 50.
holding manor on charitable trust, payment to, 50, 51.
as lord of manor, payment to, 51, 84.
ecclesiastical. See Eoolesiastigal Coepobation.
COUET LEET,
cert-money may be due at, 74.
fines and amercements at, 74.
COUET-EOLLS,
confirmed award to be entered on, 10.
production of, 39.
inspection of, after enfranchisement, 42, 75, 87.
custody of, after all copyholds enfranchised, 43, 75.
entry of surrenders and wills on, 56, 69.
fees to steward, on inspection of, 42, 87.
INDEX. 97
CEOWN MANOES,
(a) where Grown interest in possession or in remainder
expectant on estate less than inheritance,
enfranchisement, how effected, 45, 88.
reference to Board of Agriculture, 45.
expenses of, 45.
consideration, how paid and applied, 46.
where land or rentcharge, 46.
deed, reqnisiteB and effect of, 47.
indemnity of trustee acting in, 47, 88.
(b) manor held by Crown in joint tenancy,
enfranchisement, how effected, 47, 88.
(c) generally,
enrolment of memorial of enfranchisement deed, 47, 48.
how far Copyhold Act appKes to, 61.
grants of easements for mining rights, 62.
holding of customary Court in, 62.
making of grants and admittances in, 62.
entry of surrenders and wills on Court rolls, 62, 69.
partition of copyholds in, 62.
grants of copyholds outside of, 68.
CUSTOM,
incidents due by, allowed for in compensation, 5.
how affected by enfranchisement, 16.
questions as to, how determined, 38.
for lord to grant portions of waste, 55, 73.
in copyholds for lives, of barring liyes, 67.
for payment of cerium letce, 74.
CUSTOMAEY COUET,
holding of, 54, 55.
proclamations at, 65,
consent of homage at, to grant of waste, 55,
in Crown and Duchy of Lancaster manors, 62, 63.
CUSTOMAEY FEEEHOLD, meaning of, 3, 79.
CUSTOMAEY TENUEE. See Copyhold Tenubb.
CUSTOMS.
Wellington, Somerset (right of renewal), 67.
Penkneth, Cornwall (copyholds for years), 67, 68.
"te U
98 INDEX.
DATE,
of oompulBory enfranchisement, 10.
of Yoluntary enfranchiaement, 16.
DEATH pending proceedings, 36.
DECISION of yaluers. See Yalitatign.
DEOLABATION,
by yalner or umpire, when and how made, 5, 81.
form of, 63.
of tiile by lord, when requisite, 36, 37.
of trust by married woman under Fines and Becoyeriee Act, 70.
DEED,
necessary for voluntary enfranchisement, 14.
enfranchisement, confirmation of, 14, 42, 77.
alteration of, 42.
in Crown manors, requisites of, 47.
enrolment of, 47, 48.
form of, 77.
stamp duty on, 41.
easement for working reserved minerals to be mentioned, 19.
under repealed Copyhold Acts, 63, 76.
DEPUTY STEWAED. See Stewaed.
DEETVATIVE INTEEESTS entered on Court rolls, in manors
where, how enfranchisements effected, 52—54.
DESCENT,
customary, how affected by enfranchisement, 16.
of trust and mortgage estates, 57.
DISABILITY of lord or tenant, provisions for, 34, 79, 80.
DISTRESS,
right of, how affected by enfranchisement, 17, 18.
for cert-money, when, 74.
for amercement at court-leet, or court-baron, 74.
DOCUMENTS,
production of, 39, 81.
refusal to produce, 39.
penalty for destruction of, 39, 81.
DOWEE, how affected by enfranchisement, 16, 17.
DEAIN, disturbance of soil for making, 19.
DUEHAM, University of, 51.
INDEX. 99
EASEMENT,
when and how affected by enfranchiBement, 18.
grant of, to work minerals reseryed, 89.
for mining in Grown and Duohy of Lancaster manors, 62, 63.
ECCLESIASTICAL OOMMISSIONEES,
notice of enfranchisement proceedings to, 49,
consent of, to enfranchisement proceedings, 49.
powers of, under Episcopal, &c.. Estates Acts, 50.
ECCLESIASTICAL COEPOEATION,
agreement to enfranchise, 48, 49.
consent of, how eyidenced, 49.
manor belonging to, notice of enfranchisement, 49.
interpretation of, 59.
ECCLESIASTICAL MANGE,
enfranchisements in, 48, 49, 79, 88.
lord of, interpretation of, 59.
when excepted from Copyhold Act, 61, 62.
ENEEANCHISEMENT,
(a) oompnlsory,
who entitled to effect, and on what conditions, 1, 2, 78.
notice of desire to be given, 3.
right to effect, 33, 69, 70.
compensation for, how ascertainable, 3 — 8, 80.
to be stated in money, 6, 82.
when determined by Board, 7, 8.
when a rentcharge, 8, 21 — 25, 82.
date at which to take effect, 10, 82.
restrictions on, 10 — 12, 80.
effect of, 16, 17, 61, 72, 87.
rights not affected by, 17, 18, 42.
easements for working minerals to be reserved, 19.
compensation, receipt for, 19.
payment or investment of, 20, 21, 25—27.-
charge for, 29, 31, 64.
expenses of, how borne and recoverable, 27, 28.
charge for, 29, 30, 31, 64.
alteration of award, 41, 42.
informality in, 42, 45.
in manor belonging to corporation, 48, 51.
in ecclesiastical manors, 49, 79.
h2
100 INDEX.
ENFRANCHISEMENT— continued,
(a) oompnlsory — oontinv^ed.
in manor held on charitable trost, 50.
in university and college manors, 51.
in manors where deriyatiYe interests entered on rolls,
62—54.
interpretation of, 59.
when copyholds for liyes excepted from, 62.
when Grown manors excepted from, 62, 79.
compensation to steward, 9, 65, 86.
(b) Tolimtary,
who may effect, and on what conditions, 12, 14, 76
consent of Board necessary, 12.
forms of consideration for, 13, 77.
how effected, 14, 77.
where consideration is a rentcharge, 14, 21 — 25, 77.
island, 15, 78.
charge for consideration money, 15, 77.
date of, 16, 77.
effect of, 16, 17, 61.
rights not affected by, 17, 18, 42.
consideration money, receipt for, 19, 77.
inyestment and application of, 20,
21, 25—27, 77.
charge of, 29—31, 77.
expenses, how borne and recoverable, 27 — 29.
charge of, 29—31, 77.
informality in, 42, 45.
alteration in deed of, 41, 42.
in Crown manors, 45 — 48, 61.
in ecclesiastical manors, 48, 49, 61, 62, 76, 77.
in manor held on charitable trust, 50.
in manor belonging to corporation, 48, 51.
in university or college maDor, 51.
compensation to steward on, 86.
ENEOLMENT,
on ali,enation, fees before compulsory enfranchisement, 2.
tenant to receive notice on, 33.
of confirmed award, 10.
of memorial of enfranchisement in Crown manors, 47, 48.
of surrenders and wills on court-rolls, 56.
of licence to alienate in parcels, 56.
of tenant, interpretation of, 59.
INDEX. 101
ENTEY,
lor condition broken, effect of enfrancliiseinent, 17, 18.
on land to be enfranchised, 6S,
EPISOOPAL and Capitular Estates Acts, 49, 50, 59.
EBBOBS in instruments, correction of, 41, 42.
ESCHEAT,
not allowed for, on compulsory enfrandusement, 6.
what is, 6.
effect of enfranchisement under Copyhold Act on, 16, 75.
at common law, 75.
ETON COLLEGE, 51.
EVIDENCE,
of custom, how question as to, determined, 38.
penalty for refusal to giye, 39.
in proceedings under Copyhold Act, if false, 39.
EXPENSES,
of lord's purchase of tenant's interest, 11, 30, 31, 85.
of redeeming a rent-charge, 24, 83, 86.
of compulsory or voluntary enfranchisement, 27 — 29, 85.
of dispute as to title, 28, 86.
recovery of, 28, 29, 86.
of trustee, 29, 85, 86.
if paid by occupier of land, 29, 86.
charge of, by tenant or lord, 29 — 31, 86.
if paid by mortgagee, 31, 32.
advance of money required for payment of, 32.
of correcting errors in instruments, 42.
of ascertaining compensation in Crown or Duchy of Lancaster
manors, 45.
of enfranchisements in manors where derivative interests
entered on roll, 53, 54.
of inquiries before Board, 39, 86.
of Board, in proceedings under Copyhold Act, 41, 82.
EXTINGUISHMENT of manorial rights and incidents^ 1, 2, 76, 78.
FACT, question of, how determined, 38.
FAXB, representation against holding, 73.
FEE-FABIC rent charged on manor, transfer of, 40.
102 INDEX.
FEES,
what, payable before compulsory enfranchifiement, 2, 87.
for admittance, how they may be lost, 33.
for inspection of court rolls after enfranchisement, 42, 87.
instruments under repealed Copyhold Acts, 43.
for enrolment of enfranchisement deeds in Grown manors, 48.
for entering of surrenders on court-rolls, 56.
FINE,
what, to be paid before compulsory enfranchisement, 2, 3.
allowance for, in fixing compensation, 5.
not payable on death pending proceedings, 36.
when statute-barred, not reviyed by enfranchisement, 61.
at court-leet or court-baron, remedies for, 74.
FISHINQ-, rights of, when affected by enfranchisement, 18.
FOEFEirUBES, allowance for, in compensation, 6.
FORMS,
to be framed and circulated by Board, 44.
of declaration by valuer, 63.
of certificate of charge, 64.
of transfer of certificate of charge, 64.
of notice of right to enfranchise, 64.
of power of attorney, 6d.
FBANCHISES, when affected by enfranchisement, 18.
FEEEBENOH, how affected by enfranchisement, 16, 17.
FREEHOLDS, FREEHOLD TENURES,
subject to manorial incidents, enfranchisement of, 1, 2.
customary freeholds distinguished from freeholds subject to
custom, 2, 3.
land, when enfranchised, to be of, 16.
FREE-RENT, compulsory extinguishment of, 1, 2.
GAVELKIND,
I custom of, how affectod by enfranchisement, 16.
in Kent, not affected by Copyhold Act, 17, 61.
GENERAL occupancy of oopyholds, 67.
INDEX. 103
GEANT,
of copyholds, restriction on new, 54, 55, 73.
of copyhold out of manor and out of court, 55, 62, 63, 75.
GEAYEL, right to, when affected by enfranchisement, 18, 19.
HARDSHIP,
when a ground for suspending enfranchisement, 11.
continuing conditions as to user, 12.
HEEIOT,
compulsory exting^uishment of liability to, 1, 2.
definition of, 2, 59.
when yalue of, payable before compulsory enfranchisement, 2, 3.
mode of ascertaining compensation for, in certain cases, 3, 4.
compensation for, in compulsory enfranchisements, 5, 6.
not payable on death pending proceedings, 36.
HEBIOT CUSTOM, remedies for, 72.
HEBIOT SEBYIGE, applicable to freeholds, 72.
HIGH COUBT, appeal to, when, 38, 39.
HOMAGE,
consent of, to grant of waste, 55, 73.
presentment of surrender by, 56, 62, 63, 69.
yerdict of majority of, 74.
HUNTING, rights of, when affected by enfranchisement, 18.
IDENTITY,
of land, where enfranchisement compensation is a rentcharge, 8.
how to be ascertained, if doubtful, 37, 38.
IMPEOYEMENTS, facilities for, allowed for in compensation, 5, 6.
INOLOSUEE, 61, 73.
INOOME of inyestment of enfranchisement compensation, 27.
INPANT, if lord or tenant is, how represented, 34.
INJUEY to land by entry for measurements, 58.
INQUntlES by or before Board, 8, 9, 38, 39, 86.
INTEEEST on enfranchisement consideration, 15.
104 INDEX.
INTEEMEDIATE LANDLOED, how protected, 22, 83.
INVESTMENT of enfranchisement or redemption moneys, 27.
lEELAND, Copyhold Act does not apply, 63.
JUSTICES,
when entitled to appoint yaluers, 3, 4, 80.
lord of manor not to act as one of, 4.
KENT, saying of gavelkind in, 61.
LANCASTER (DUCHY OF) MANGES,
enfranchisement in, 45, 88.
how far Copyhold Act applies to, 61—63, 68, 69.
LAND,
identity of, when compensation a rentcharge, 8.
how ascertained if doubtful, 37, 81.
quantity of, how determined, 37, 38, 81.
plan of, when to be made, 37.
oonyeyance of, when consideration for enfranchisement, 13, 15.
conditions as to user of, 12, 81.
user of, when enfranchised, 18, 19, 87.
interpretation of, 59.
LAND REVENUE EECOEDS, enrolment among, 47, 48.
LAND TAX, redemption of, 26, 27.
LAW, question of, how determined, 38, 39.
LEASES, effect of enfranchisement on, 17, 18, 87.
LESSEES,
right of, to enfranduse, 2, 60.
protection of, from liability to rentcharge, 23.
LICENCE,
to alienate in parcels, 56.
at fixed rate to demise, compensation for, 3, 4.
to fell timber, compensation for, 3, 4.
to demise, when steward may grant, 67.
by lord haying limited estate, 68.
LIMITATION ACTS,
fines barred by, not reyiyed by enfranchisement, 61, 72.
when seizure quousque barred by, 71, 72.
INDEX. 105
LIMITED OWNEE,
yoluntary enfranchisement by, 12, 14.
conveyance of land to, 13.
receipt for enfranchisement money, 19.
payment of enfranchisement money, 20.
apportionment of rentcharge by, 22, 23.
payment of redemption money to, 23.
sale of rentcharge by, 24.
general powers of, under Copyhold Act, 34.
" lord " in Copyhold Act includes, 59.
licence by lord who is, 68.
LOCAL inquiry by Board, 39, 52.
LOED,
compulsory enfranchisement by, 1, 3.
compulsory extinguishment of manorial incidents, 1, 2.
powers of, as to enfranchisement compensation, 3 — 5.
not to act as justice in appointment of valuer, 4, 80.
entitled to copy of valuer's decision, 7, 81.
objections by, to Board's determination of compensation, 8.
entry of confirmed award on court-rolls by, 10.
when entitled to buy tenant's interest, 10, 11.
voluntary enfranchisement by, 12—15.
remedy to recover enfranchisement consideration, 15, 75.
rights of, how affected by enfranchisement, 16 — 19, 75.
with limited estate, payment to, 20.
refusal by, to accept enfranchisement money, 20, 84.
having bad title, effect of payment, 20.
enfranchisement, expenses of, 27, 28, 30, 31.
charge by, when purchasing tenant's interest, 30, 31, 85.
certificate of charge taken by, 32, 83.
-with limited estate or under disability, power of, 34.
if trustee, 34.
where married woman is, 34.
when represented by steward, 34, 35, 79.
agents appointed by, 35, 36, 79.
death of, pending proceedings, 36, 79.
succession of rights and liabilities of, 36, 79.
declaration of title by, 36, 37, 79.
when not boimd to answer questions as to titie, 39.
acceptance of Board's scale by, 44, 45, 80.
of college or university manor on lease, 51, 88, 89.
consent of, to part of manor being considered as manor, 54.
106 INDEX.
LOBD — continued,
restriction on right to create new copyholds, 64.
holding of costomary oonrt by, 54.
grants out of manor by, 55.
admittances by, 55, 56, 69.
licence by, to alienate in parcels, 56, 68.
receipt for compensation under special agreement, 57.
interpretation of, 59.
licence to demise by, when a limited owner, 68.
right to approre common, restricted, 73.
of court-leet, when entitled to cert-money, 74.
LXJNATIO, if lord or tenant is, how represented, 34.
MANOE,
if incumbrance affecting, 17, 40, 85.
charge of lord's expenses on, 31.
belonging to Crown, 45 — 48, 88.
belonging to ecclesiastical corporation, 48 — 50, 76, 77, 88.
held on charitable trust, 50, 51, 84.
belonging to corporation, 51, 84.
belonging to university or college, 51, 88, 89.
where deriyative interests entered on court-roll, 52 — 54, 87.
application of Copyhold Act to part of, 54, 78.
grants out of, 55, 75.
interpretation of, in Act, 60, 76.
heriot custom, application of, outside manor, 72.
MANOEIAL INCIDENTS,
compulsory extinguishment of, 1, 2, 59, 78.
allowance for, in enfranchisement compensation, 6.
if statute-barred, not reyiyed by enfranchisement, 61.
MANSION-HOUSE, protection of, 10.
MAP. See Plan.
MAEEIED WOMAN,
regarded eLBfeme sole for purposes of Act, 34.
declaration of trust of copyholds by, 70.
MASTEE OF EOLLS.
custody of court-rolls, 43.
rules by, as to inspection, &c. of court-rolls, 44.
INDEX. 107
MEMOBIAL of enfranchisement in Crown manors, 47, 48.
MINEBALS, MINES,
right to, as consideration for yoluntary enfranchisement, 13, 15.
when affected by enfranchisement, 18, 19.
easements for, may be reserved on enfranchisement, 19.
in Crown and Duchy of Lancaster manors, 62, 63.
MOETGAGE,
how affected by enfranchisement, 17.
charge by deed by way of, 30, 31.
descent of estate held on, 57.
MOETGAGEE,
when entitled to enfranchise, 1 , 60, 79.
unadmitted, protection of, 29.
remedy of, 31, 32.
NOnCE,
of desire to enfranchise, 1, 3, 80.
of right to enfranchise, when to be giyen, 33, 69, 80.
statutory form of, 64.
of appointment of valuers, 5.
of intention to purchase tensmt's interest in land, 10.
of yoluntary enfi*anchisement proceedings, 12, 13, 49, 76.
of intention to redeem rentcharge, 24, 83.
by lord of appointment of agent other than steward, 35.
of reyocation of agency, 35.
form and service of, required by the Copyhold Act, 40, 41, 80.
forms of, to be framed and circulated by Board, 44.
to Ecclesiastical Commissioners, 49.
of proclamation at customary court, 55, 72, 73.
of intended entry on land for purposes of Copyhold Act, 58, 89.
OATH, examination of witnesses on, 39.
OBSTBTJCnON to persons administering the Act, 58.
OOCUPYINa TENANT, protection and remedy of, 22, 29, 82, 83,
86, 87.
OFFICER OF BOAED, validity of acts of, 58, 89.
OFFICIAL TRUSTEE of charitable funds, 50, 51.
«* OWNEB," as defined in Copyhold Act, 1887.. .2, 72, 79.
OXFOED, XTniversity of, 51.
108 INDBX.
PAELIAMENT,
annual report by Board to, 12, 58.
rules made by Master of Bolls to be laid before, 44.
PARTITION of copyholds, 57, 62, 63, 71.
PENALTY,
for refusal to giye eyidenoe, 39.
for false evidence, 39.
for destruction of documents, 39, 81.
for obstructing person administering the Act, 68, 89.
PITS, rights to, when and how affected by enfranchisement, 18.
PLAN,
of land to be enfranchised, when to be made, 37, 38.
production of, 39.
annexed to apportionment under Copyhold Act, 1841... 43.
PEOCLAMATION at customary court, effect of, 55, 71, 72.
PEOSPECTIVE VALUE,
to be considered by valuers, 6.
difficulty of determining, a ground for suspension, 11.
PUBCHASE by lord of tenant's interest, 10, 11, 30, 31.
QUEEN ANNE'S BOUNTY,
when enfranchisement compensation to be paid to, 49, 84.
application by, of enfranolusement compensatio9, 49.
QUESTIONS
arising in enfranchisements, how determined, 38, 81.
of law, appeal from Board's decision, 38, 39, 81.
QUIT-BENT,
compulsory extinguishment of, 1, 2.
allowance for, in enfranchisement compensation, 6.
BEOEIPT,
for enfranchisement compensation, when to be produced, 10.
who may give, 19.
for enfranchisement consideration not under Act, 57, 84.
BEOITAL in apportionment under Copyhold Act, 1841... 43.
BELIEF,
compulsory extinguishment of, 1, 2.
allowance for, in enfranchisement compensation, 5, 6,
INDEX. 109
BEMAINDEBMAN, notice of enfranchisement proceedings to, 12,
49, 76.
EEMEDY,
of lord for payment of enfranchisement consideration, 15.
of occupying tenant paying rent-charge, 22.
enfranchisement expenses, 29.
for recovery of redemption money, 24.
of tenant haying bad title who pays enfranchisement money, 31 .
of mortgagee paying enfranchisement money, 31.
of owner of certificate of charge, 33.
EENEWAL, EIGHT OF,
tenant without, not entitled to enfranchise, 62, 76, 77.
in Wellington Manor, Somerset, 67.
EENT,
quit-rent, free rent, compulsory extinguishment of, 1, 2.
allowance for, in enfranchisement compensation, 5, 6.
mode of ascertaining compensation for, in certain cases, 3, 4.
due under lease of land enfranchised, 17.
interpretation of, 60.
when acceptance of, implies admittance, 71 .
EENTCHAfiGE,
in compulsory enfranchisement, in what cases, 8, 82.
in Yoluntary enfranchisement, general proyisions as to, 13, 14.
on what days payable, 21.
priority of, 21, 83.
recovery of, 21, 22, 82, 83.
apportionment of, 22, 23, 83.
redemption of, 23, 24, 26, 27, 83, 86.
sale of, 24, 25, 83, 84.
in Crown manors, 46, 47.
in manor held on charitable trust, 50.
in manor belonging to corporation, 51.
in manor belonging to university or college, and held on lease, 51 .
in manor where derivative interests entered on court-rolls, 52,
under repealed Copyhold Acts, 63, 76,
BEPEESENTATION of lord or tenant under disability, &c., 34.
EEYEESIONEE, notice of enfranchisement proceedings, 12, 49, 76.
EOAD, right to disturb soil for making, 19.
EOYALTIES, when affected by enfranchisement, 18.
110 INDEX.
SALE,
of enfranchising tenant's interest to lord, 10, 11.
of rentcharge, 24, 25, 83, 84.
SCALE,
of compensation for enfranchisement, 44, 45, 80.
of allowance to valuers, 44, 82.
SCOTLAND, Copyhold Act does not apply to, 63.
SEIZUEE guouaque, when barred by Statute of Limitations, 71, 72.
** SENDING BY POST," meaning of, in Acts of Parliament, 41.
SETTLEMENT, rights in land under, how affected by enfranchise-
ment, 17.
SHOOTINQ, rights of, when affected by enfranchisement, 18.
SOCAGE TENUEE, 16, 64.
SOIL, right to disturb after enfranchisement, 18, 19.
SPOBTING, rights of, when affected by enfranchisement, 18.
STAMP DUTY, what instruments exempt from, 41, 76, 80.
STEWARD,
fees of, payable before compulsory enfranchisement, 2, 87.
entitled to see award before confirmation, 9.
compensation to, on compulsory enfranchisement, 9, 65, 86, 87.
may be charged, 29, 87.
consent to inclusion of lord's reserved rights, 19.
to give notice of right to enfranchise, 33, 74, 75, 80.
entitled to represent lord, when, 34, 36, 76, 79,
fee to, for inspection of court-rolls after enfranchisement, 42,
87.
power of, to hold customary court, 54, 56, 74.
to grant copyholds out of manor, 55.
to admit out of manor, 56.
to enrol surrender, will, &c. on court-rolls, 56.
fees of, for enrolling surrender, &c. on court-rolls, 56.
entitled to grant licence to alienate in parcels, when, 56.
licence to demise, when, 67.
interpretation of, in Copyhold Act, 60, 74.
act of, amounting to admittance, 69.
SUB-LESSEE, protection of, 22, 23.
SUCCESSION of rights and liabilities under Copyhold Act, 36.
INDBX. Ill
SUItRENDEE,
presentment of, by homage, 56, 69.
entry of, on conrt-rolls, 56, 62, 63, 69.
STJBYEYOE, for enfranchisements on Crown manors, 45.
SUSPENSION of enfranchisement proceedings, 11, 12, 80.
TENANCY by the curtesy, how affected by enfranchisement,
16, 17.
TENANT,
right of, to enfranchise compnlsorily, 1, 2.
notice of desire to enfranchise by, 3.
powers of, as to enfranchisement compensation, 3, 4.
appointment of valuer by, 3, 4.
entitled to receive copy of valuer's decision, 7, 81.
to pay enfranchisement compensation in money, 8.
to see award before confirmation, 9.
compensation to steward by, 9.
when lord may buy interest of, 10, 11.
right of, to enfranchise voluntarily, 12.
when, bound to give notice of voluntary enfranchisement, 12
grant of rentcharge by, 14.
easement to work reserved minerals by, 19.
rights of, not affected by enfranchisement, 17, 18, 42.
apportionment of rentcharge, powers as to, 22.
redemption of rentcharge by, 23, 24.
expenses, rights as to, 27 — 29.
if a trustee, 28, 29, 34.
charge by, of moneys paid, 29 — 31.
charge for moneys paid, if his title proves bad, 31.
if a mortgagee, 2, 31, 60.
entitled to notice of right to enfranchise, 33, 80.
with limited estate, or under disability, 34, 80.
agent appointed by, 35, 36.
death pending proceedings, 36.
succession of rights and liabilities of, 36, 80.
may require declaration of lord's title, 36, 37.
Board to determine questions arising on enfran-
chisement, 38.
when not boimd to answer question as to title, 39.
112 INDEX.
TENANT— c<m«mucd.
requiring enfranchiflement, acceptance of Board's scale by, 44,
45, 80.
in manors where deriyatiye interests entered on court-rolls, 52.
interpretation of, 60, 76.
TITLE,
to land, how affected by enfranchisement, 17.
dispute as to, expenses of, 28, 86.
defective, remedy where money paid to lord with, 20.
by tenant with, 31.
lord may be required to declare, 36, 37.
when lord or tenant not bound to answer questions as to, 39.
TBEASUfiY to fix fees for enrolment of enfranchisement deeds in
Crown manors, 48.
TEUST,
descent of estate held on, 57.
effect of declaration of, by married woman, 70.
TETJSTEE,
when consideration money paid to, 23, 24, 25, 46, 50, 51, 83, 84.
for receipt of consideration moneys, 25, 26, 46, 50, 51.
investment by, 26.
expenses of tenant^who is, 29.
powers of lord or tenant who is, 34.
for enfranchisement in Crown manors, 46, 47, 88.
for corporation lord of manor, 51.
UMPIRE,
appointment of, 4, 81.
removal of, 5, 81.
declaration by, 5, 63, 81.
decision of, 5, 6, 7.
powers of, 39, 58, 61, 81.
allowance to, 44, 61, 82.
penalty for obstructing, 58.
UNDIVIDED SHARE,
in rentcharge, power of person entitled to, 22, 83.
in land, when holder of, can enfranchise, 60.
UNIVERSITY AND COLLEGE MANORS,
what are, for purposes of Act, 51, 59.
provisions where held on lease, 51.
INDEX. 113
UNKNOWN, il lord or tenant, 34.
USEB,
conditions as to, saying of, 12, 81, 87.
of land when enfranchised, 18, 19, 87.
VALUATION,
when, to be made by one valuer, 8, 4.
where made by two valuers, expenses of, 4.
declaration annexed to, 6.
circumstances to be considered in, 6, 6.
date when value to be ascertained, 6, 81.
details and copies of, 6, 7, 81.
delivery of, 6.
correction or amendment of, 7, 81 .
question of law or fact material to, 38, 81.
stamp duty on, 41, 81.
VALUEES,
appointment of, 3 — 6, 80, 81.
to appoint and refer to umpire, 4, 6, 7, 81.
removal of, 5, 81.
declaration by, 5, 63, 81.
circumstances to be considered by, 5, 6, 81.
decision of, 6, 7, 81.
powers of, 7, 39, 68, 81.
to determine quantity and boundaries of land, 37.
allowances to, 44, 82.
penalty for obstructing, 68.
interpretation of, 61.
VESTING OEDEE under Trustee Act, 1893... 70.
VOLUNTAEY ENFEANCHISEMENT. 5ee Eotraitohisbment.
WAEEEN, right of, when affected by enfranchisement, 18.
WASTE LAND,
right to, as consideration for enfranchisement, 13, 16.
grants of, by lord, restrictions on, 54, 73.
consent of homage to grants of, 66, 73, 74.
WATEE, right to disturb soil for obtaining, 19.
E. I
114 INDEX.
WAT, right of, when affected by enfranchisement, 18.
WILL,
right under, how affected by enfranchisement, 17.
entry of, on court-rolls, 66, 62, 63.
WINCHBSTBE, College of St. Mary at, 51.
WITNESSES,
summoning and examination of, 39.
expenses of, 39.
WOODS, Commissioners of, powers in Crown manors, 45, 46.
** WRITING," meaning of, in Acts of Parliament, 41, 80.
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